International private law in the legal system. International private law

International communication, international turnover is a set of interstate relations and relations between individuals and legal entities of different states. Legal issues of interstate communication fall within the scope of the MPP. Legal issues of relations between individuals and legal entities are within the scope of international private law. The specificity of the development of modern CPOs is characterized by their large-scale internationalization and globalization - the establishment of transparency of borders, visa-free entry into the territory of a foreign state, the international division of labor, constant migration of the population and labor force, an increase in the number of "mixed" marriages, foreign adoption, etc. In the modern world there is a separate set of relations called " international civil relations". The process of internationalization of NPOs leads to the need for their comprehensive legal regulation, taking into account the peculiarities of the legal systems of different states. International private law is the only branch of law intended for the legal regulation of civil (in the broad sense of the word, i.e. civil, private law) relations arising in the field of international communication.

Private international law is an independent, complex branch of law that combines the norms of international and national law and regulates international civil relations. The subject of PIL regulation is NPO, burdened with a foreign element. The foreign element can manifest itself in three ways:

subject of legal relationship - a foreign person, a foreigner (foreign citizen, stateless, bipatride, refugee; foreign legal entity, enterprise with foreign investments, international legal entity, TNC; international intergovernmental and non-governmental organizations; foreign state);
the object of the legal relationship is located abroad;
the legal fact with which the legal relationship is connected takes place abroad.

In Russian legislation, the foreign element in civil relations is determined by paragraph 1 of Art. 1186 of the Civil Code. Unfortunately, there are quite a few gaps in this definition: a foreign state and an international organization are not named as a foreign entity; a legal fact that took place abroad is not singled out as one of the options for a foreign element.

True, in Art. 1186 of the Civil Code refers to civil law relations complicated by "another foreign element". This phrase fills in the noted gaps, but due to its vague nature, it can lead to an extensive interpretation of the legal norm.

International private law is a complex branch of law and jurisprudence. International private law is most closely related to national private (civil, commercial, family and labor) law. At the same time, its norms are of a dual and paradoxical nature, since private international law is very closely related to the MPP. International private law is not a branch of MPP, but their distinction is not absolute. This is due, first of all, to the fact that international private law regulates relations arising precisely from international communication. The main beginnings of the MPP (mainly its universally recognized principles and norms) have a direct effect in private international law as well.

The place of private international law in the system of law

However, even after the norms of international law become part of the national legal system, they retain an autonomous, independent character and differ from other norms of domestic law. The autonomy and independence of the implemented international norms in the national legal system is explained by the fact that they are not the creation of one legislator, but are created in the process of international rule-making and embody the coordinated will of two or more states. The state does not have the right to cancel or change such norms unilaterally (to do this, it must first terminate its participation in the relevant international agreement).

The interpretation of the unified norms should be carried out not according to the rules of interpretation of the norms of national law, but in accordance with the provisions of international law enshrined in the Vienna Convention on the Law of Treaties of 1969. The legislation of most states establishes the principle of preferential application of international law in cases of its conflict with the norms of national laws (Article 15 of the Constitution). International law also has primacy (supremacy) in the regulation of PPOs with a foreign element (Article 7 of the Civil Code, Article 10 of the Labor Code, Article 6 of the UK, Article 11 of the Code of Civil Procedure, Article 13 of the APC).

In addition to the unified substantive legal norms, the substantive legal norms of national law in private international law are also part of the normative structure of private international law. True, this position in the doctrine of law is not universally recognized. Many scholars believe that national substantive legal norms cannot be included in the structure of private international law. However, most authors (including Russian ones) express the opposite point of view - the substantive norms of national law are included in the normative structure of private international law. This concept seems to be the most correct and consistent with modern trends in the development of regulation of international civil legal relations.

The substantive legal norms of national law from the point of view of private international law can be divided into three groups: general rules governing any legal relationship - both those with a foreign element and those without such an element (Article 11 of the Labor Code); “specially national” norms regulating relations only between citizens of a given state on its territory, i.e. relations not burdened by a foreign element (Article 33 of the Constitution); “specially foreign” norms regulating only certain relations, without fail burdened with a foreign element (Federal Law of July 9, 1999 No. 160-FZ “On Foreign Investments in the Russian Federation” (as amended on December 8, 2003); clause 4 of Art. 124 SC). Of all domestic substantive legal norms, it is specifically foreign norms that are included in the structure of private international law.

Such norms do not regulate the entire spectrum of civil law relations, but some part of them, some specific range of issues. The source of specially foreign norms is national law, that is, the creation of one powerful legislator. However, these norms are specifically designed to regulate relations that arise in the international sphere. In domestic law, specially foreign norms, as well as implemented international norms, form a separate, independent normative group. The peculiarity of the norms under consideration is a special subject of regulation (only relations burdened with a foreign element) and a special special subject (foreign persons or persons of local law entering into relations that have a foreign element in their composition).

A fairly wide range of relations in the field of private international law is regulated precisely with the help of substantive norms of national law. Very often, PGOs with a foreign element do not give rise to a conflict issue and a choice of law problem. This situation develops, as a rule, in cases where the national legislation contains detailed substantive legal regulation of a large-scale range of relations related to international communication.

Methods of regulation in private international law

The general method of regulating relations in the field of private international law is the method of decentralization and autonomy of the will of the parties (as in any other branch of national private law). Directly in private international law, there are also special methods of legal regulation - conflict of laws and substantive law. Special methods of private international law do not oppose each other, but interact and combine with each other. The very name of these methods shows their direct connection with the normative structure of private international law. The conflict method is associated with overcoming conflicts in the legislation of various states and involves the use of conflict rules (both internal and unified). The substantive legal method assumes the existence of a uniform regulation of PPO with a foreign element in different states and is based on the application of substantive legal norms (primarily unified, international ones).

The conflict method is a method of resolving conflicts between the laws of different states. In private international law, there is the concept of "colloding" (colliding) laws. The legal systems of different states regulate the same problems of private law in different ways (the concept of legal personality of individuals and legal entities, types of legal entities and the procedure for their formation, form of transaction, limitation periods, etc.). For the correct resolution of a civil dispute, aggravated by a foreign element, the choice of legislation is of great importance. A legally justified solution to the question of which state's law should govern a given international civil legal relationship contributes to the elimination of conflicts of legal systems and facilitates the process of recognition and enforcement of foreign judgments.

The conflict method is a reference, indirect, indirect method based on the application of conflict rules. The court first of all makes a choice of the applicable law (resolves the conflict of laws) and only after that applies the substantive legal norms of the chosen legal system. When applying the conflict method, the rule of conduct and the dispute resolution model are determined by the sum of two norms - conflict and substantive law, to which the conflict refers. Methods of the conflict method - internal (with the help of the norms of national conflict of laws) and unified (through the application of the norms of international treaties "on applicable law" and conflict of laws of complex international agreements). The conflict method is considered primary and fundamental in private international law, since the basis of private international law itself is precisely conflict rules.

The use of the internal conflict method is associated with significant difficulties of a legal and technical nature due to the fact that the conflict rules of different states resolve the same issues in different ways (the definition of personal law, the concept of the right of the essence of a relationship, etc.). The solution of the same issue may be fundamentally different depending on which state's conflict of laws law is applied in the consideration of the case.

In modern international communication, the importance of unified substantive legal norms and, accordingly, the role of the substantive legal method of regulation (this method is also called the method of direct prescriptions) is increasing. The substantive-legal method is based on the application of substantive norms that directly regulate the rights and obligations of the parties, formulating a model of behavior. This method is direct (immediate) - the rule of conduct is specifically formulated in the substantive legal norm. The sources of the substantive method are international law and national laws specifically dedicated to the regulation of PHEs with a foreign element.

Russian legislation establishes the primacy of the unified substantive method over the conflict method (clause 3 of article 1186 and clause 6 of article 1211 of the Civil Code). The conflict method plays a subsidiary role, it is used in the absence of direct substantive legal provisions.

However, until now, when resolving private law disputes with a foreign element, the conflict method of regulation continues to dominate in the practice of courts and arbitration. This is primarily due to the fact that the majority of states generally recognize and enforce decisions of foreign courts on their territory if such decisions are based on the national law of this state, i.e., when deciding on the applicable law, the foreign court chose the law of that particular state, on whose territory the judgment is to be recognized and enforced. The conflict method continues to play a major role in private international law.

It includes a large number of different industries, the main task of which is to regulate various kinds of legal relations that arise and operate in society. These branches include private international law (PIL), the features of which, as well as the place of PIL in the legal system, will be discussed in this article.

The concept and subject of PIL

So, private international law is a conglomeration of legal norms of a material and conflict nature, both national and international, with the help of which various civil law relations are regulated, in which a foreign element is directly involved.

As a direct subject, which the PIL system deals with, are relationships of a private law nature, complicated by one or another element of a foreign etiology, which can be expressed in such forms as:

the presence on the side of the subject of the legal relations that have arisen;
the presence on the side of the object of the legal relations that have arisen;
as a legal fact.

About the PIL system

Actually, the PIL system has a typological similarity with and has a three-tier structure, namely:

A common part.
Special part.
Civil international process, as well as commercial international arbitration.

The general part includes consideration of such issues as:

concept, subject, method;
conflict of law rules;
direct subjects;
features of the application of foreign legal norms.

In the Special Part, the PIL system considers such issues as:

ownership;
international payments and transportation;
tort and obligation legal relations;
family, inheritance, labor and other international legal relations.

The civil international process and the commercial process regulate issues related, respectively:

with civil proceedings involving a foreign element;
with the resolution of disputes of a commercial nature by leading entities in the process of carrying out activities of a foreign economic nature.

PIL in the modern legal system

Considering the question of what is the place of PIL in the system of law, it should be said that in modern jurisprudence there are several concepts on this issue, of which the following three are considered the most common.

The first of the above concepts considers that PIL is an integral natural part of domestic law and each of the modern states has its own private international law. This approach is based on the fact that the latter is basically formed from national ones, which are fixed in the relevant codes. However, the vulnerability of this approach lies in the fact that, in addition to national norms, there are norms enshrined in international agreements. International law, on the other hand, has the status of an independent legal system, and therefore its sources cannot be regarded as sources of internal law.

According to the second concept, the PIL system is an independent legal system, functioning in parallel with such systems as public international law. However, this concept is in conflict with the generally accepted position that at present there are only two legal systems, one of which is the national law of states, and the second is actually international law, the foundation of which is international agreements and customs.

The third concept considers that PIL is a multisystem legal complex, the first part of which is included in the structure of national law (national norms), and the second part is included in the structure of international law (norms fixed in international treaties).

conclusions

Thus, based on the foregoing, it can be stated that the question of what is the place of PIL in the legal system is debatable to a certain extent, however, most jurists still adhere to the position that PIL should be considered a national branch of law that has numerous connections with international law, but at the same time not being an integral part of the latter.

The concept and subject of PIL

PIL The subject of any science PIL subject signs of the subject of PIL

Characteristics of a foreign element in PIL

The foreign element can manifest itself in three ways: 1) Subject of legal relationship- a foreign person, a foreigner (foreign citizen, stateless, bipatride, refugee); foreign legal entity, enterprise with foreign investments, international legal entity, TNC; international intergovernmental and non-governmental organizations; foreign state). 2) Object of legal relationship is located abroad. 3) legal fact, with which the legal relationship is connected, takes place abroad.

PIL structure

Block system(structure): 1. Conflict rules. 2. Unified substantive legal norms. 3. (debatable) International civil procedure is a procedural norm for considering cases with a foreign element.

Collision problem in PIL and ways to overcome it. Types of collisions

Law conflict- due to the specifics of a private law relationship complicated by a foreign element, the objective possibility of applying the private law of two or more states to this relationship, which can lead to different results, to different solutions to emerging issues. The conflict of law is due two reasons. First: private law relations lie within the scope of private law, which has a national character. The presence of a foreign element in such a relationship connects it with the private law of not one state, but several. The second reason purely legal - the private law of different states differs, sometimes significantly, in its content: the same issues are resolved differently in the law of different states. Ways to overcome: 1. conflict law. (Clause 1, Article 1186 of the Civil Code of the Russian Federation). The application of a special rule indicating which law should be applied to a relationship complicated by a foreign element. 2. Unified substantive. Creation of uniform rules for regulating relations with a foreign element in the form of an international treaty. If there is a substantive contract, the choice of law is not made.

Interlocal, intertemporal, interpersonal collisions. Positive and negative collisions.

Interlocal collisions- these are collisions due to the presence in one state of several legal systems, each of which can regulate private law relations of an international character. Towards interpersonal conflicts include conflicts due to the presence in the state of several legal systems designed to regulate private law relations between different groups of persons. Intertemporal collisions are conflicts due to the presence of legal acts adopted at different times, designed to regulate the same private law relations. As a rule, all researchers, considering intertemporal collisions, note their identity with the issue referred to in the theory of law as the action of the law in time. Collision resolution: According to a special rule in the law or, in the absence of it, the law of the territory in which the legal relationship took place. Within the framework of a collision, collisions are distinguished positive(two or more legal orders claim to regulate the relationship) and negative collisions(none claims).

PIL sources in the countries of the continental legal family.

1) International treaties

3) Custom

4) PIL doctrine- the opinion of scientists is not considered as a source of PIL. However, when applying the norms of foreign law in Russia, both the practice of their application and the doctrine in the respective state will be taken into account.

Sources of PIL in Common Law Countries

1) International treaties agreements between states. division of treaties into multilateral and bilateral, universal and regional, self-executing and non-self-executing. 2) Domestic law is one of the main sources of MCHP in Russia. 3) Judicial precedents and jurisprudence- in the modern Russian legal doctrine, there have repeatedly been proposals to recognize court decisions as a source of law. 4) Custom- a rule of conduct that has developed in practice, for which legal force is recognized. 5) PIL doctrine- the opinion of scientists is not considered as a source of PIL. However, when applying the norms of foreign law in Russia, both the practice of their application and the doctrine in the respective state will be taken into account.

Agreements on legal assistance with the participation of Russia

International treaties are divided into international agreements regulating certain types of obligations (Vienna Convention on Sales Contracts) and agreements on legal assistance. Depending on the number of participants, agreements are divided into bilateral and multilateral. From the point of view of PIL, agreements on legal assistance are of particular interest. By September 1, 2003, Russia became a party to more than 30 legal aid treaties. Their value for the study of PIL is due to the consolidation in such agreements of conflict-of-laws rules on various institutions of civil and family law. A classic example that has received wide recognition in recent years is the 1993 Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk Convention). The Russian Federation ratified this convention in 1994.

Customs as a source of PIL

customs- these are rules that have been established for a long time, are systematically applied, although they are not fixed anywhere. In this respect, custom differs from the rule of law. Customs as a source of PIL: International customs based on the consistent and long-term application of the same rules, doctrine and practice are considered as sources of PIL. International customs are characterized by the fact that they are unwritten, their normative content is formed over a more or less long period of time, which serves as evidence of a “general practice” reflected in law enforcement practice: in decisions of international judicial and arbitration bodies, in resolutions of international organizations. These documents act as confirmation of the existence of an international custom as a whole or the presence of its individual elements. Customs based on the principles of sovereignty and equality of states are obligatory for all countries; as for other customs, they are obligatory for a particular state if they are recognized by it in some form.

Transaction form in PIL

Article 1209. Law applicable to the form of a transaction

1. The form of a transaction is subject to the law of the place where it was made. However, a transaction made abroad cannot be invalidated due to non-compliance with the form, if the requirements of Russian law are met. The rules provided for in the first paragraph of this paragraph shall also apply to the form of the power of attorney.

2. The form of a foreign economic transaction, at least one of the parties of which is a Russian legal entity, is subject to Russian law, regardless of the place of the transaction. This rule shall also apply in cases where at least one of the parties to such a transaction is an individual engaged in entrepreneurial activity, whose personal law, in accordance with Article 1195 of this Code, is Russian law.

3. The form of a transaction in relation to immovable property is subject to the law of the country where this property is located, and in relation to immovable property entered in the state register in the Russian Federation, to Russian law.

UNIDROIT principles

In 1994, the International Institute for the Unification of Private Law (UNIDROIT), as a result of 20 years of work, created the Principles of International Commercial Contracts, also called the UNIDROIT Principles. The UNIDROIT principles represent a completely new approach to the law of international trade because they are not an international convention subject to ratification by signatory states. This is a set of international trade customs, the so-called. "lex mercatoria", collected and unified. The provisions of the UNIDROIT Principles can be divided into two parts: the first part includes the fundamental principles common to all legal systems, and the second part includes the rules on the conclusion and execution of international commercial contracts, as well as the consequences of their non-fulfillment, formulated in the form of providing the injured party with various means of protection. The UNIDROIT principles shall apply:1) where the parties have agreed that their contract will be governed by these principles. They are used in this case in the form of “contract law”, which is especially useful when drafting contracts and negotiating with parties who speak different languages, from different legal systems. The guidance of the Principles is possible in pre-contractual work, in the conclusion and execution of contracts, in the event of disputes and mutual claims. 2) if the parties have agreed that their contract will be governed by "general principles of law", "lex mercatoria" or similar provisions (for example, "principles of natural justice"). 3) where there is no agreement on the choice of applicable law in the contract. 4) can be used to interpret and supplement international unified legal documents, as well as serve as a model for national and international legislation (formed the basis of the Civil Code of the Russian Federation, Lithuania, Argentina, Tunisia, Quebec, etc.)

Incoterms-2000 ": EXW term

EXW - Ex works - from the factory (ex works)

The seller is considered to have fulfilled the obligation to deliver at the time the goods are provided to the buyer at his enterprise, the obligations for loading, transportation, customs formalities are on the buyer.

Incoterms-2000": FCA term

FCA - Free carrier - free from the carrier (Free carrier)

The seller is considered to have fulfilled the obligation to deliver at the time the goods are handed over to the carrier. Customs clearance for export - on the seller, for import - on the buyer, the buyer pays for the transportation.

Incoterms-2000": FAS term

FAS - Free alongside ship - freely along the side of the ship

The seller is considered to have fulfilled the obligation to deliver when the goods, cleared through customs, are placed along the side of the ship in a certain port. Loading, transportation and import license on the buyer.

Incoterms-2000": FOB term

FOB - Free on board - free on board (free on board)

The seller fulfills his obligation when the goods pass the ship's rail at the agreed port of shipment. On the seller delivery and loading. Everything on board is the buyer. Export license for the seller. Freight and import license on the buyer.

Incoterms-2000 ": CIP term

CIP - Carriage and insurance paid to - transportation and insurance paid to

The seller pays for the carriage and insurance of the goods to the agreed destination, but the risk passes when the goods are delivered to 1 carrier. Export license - the seller, import - the buyer.

Incoterms-2000": CPT term

CPT - Carriage paid to - transportation paid to

The seller pays for carriage to the named destination, but the risk passes when the goods are handed over to the first carrier. Export license - the seller, import - the buyer.

Incoterms-2000 ": CIF term

CIF - cost, insurance and freight - cost, insurance and freight

The seller is considered to have fulfilled the obligation at the moment the goods pass the ship's rail at the agreed port of shipment, but the seller pays for the delivery of the goods to the agreed point and the seller pays the minimum insurance against loss of goods in transit in favor of the buyer. An export license is issued by the seller, an import license is issued by the buyer.

Incoterms-2000 ": CFR term

CFR - Cost and freight - cost and freight

The seller is deemed to have fulfilled the obligation at the time the goods pass the ship's rail at the agreed port of shipment, but the seller pays for the delivery of the goods to the agreed point. An export license is issued by the seller, an import license is issued by the buyer.

Incoterms-2000": DDU term

DDU - Delivered duty unpaid - delivery without payment of duty

Customs clearance for import is carried out by the buyer.

Incoterms-2000": DAF term

DAF - Delivered at frontier - delivery at the border (free-border)

The seller fulfills the obligation to deliver at the time of arrival of the goods, cleared for export, not unloaded from the carrier's vehicle at the agreed border point. It is the buyer's responsibility to unload and import license. Transport - any, except water.

Incoterms-2000 ": the term DEQ

DEQ - Delivered ex quay - delivery from the berth (ex-quay)

The seller fulfills the obligation to deliver when the goods are presented at the quay at the agreed destination. The import license is paid by the buyer.

Incoterms-2000": DES term

DES - Delivered ex ship - delivery from the ship

The seller fulfills the obligation to deliver at the moment the goods are provided to the buyer on a ship that has arrived at the port of destination. Import license - buyer.

Incoterms-2000": DDP term

DDP - Delivered duty paid - delivery with duty paid

The seller fulfills the obligation at the time of delivery of the goods to the agreed destination.

Customs clearance for importation is carried out by the seller.

If the delivery is made to the buyer's enterprise, he pays for unloading. In other cases, the seller pays for transshipment to the buyer's transport.

Incoterms-2010 ": the term DAP

DAP - Delivered at point - delivered to the specified point

Delivery of goods to the agreed destination.

Customs clearance for importation is the responsibility of the buyer.

Incoterms-2010": DAT term

DAT - Delivered at terminal - delivered to the terminal

The seller fulfilled the obligation to deliver at the time of delivery to the tax, transport terminal

Preparing an Inheritance with a Foreign Element: Civil Law Methods for Optimizing an Inheritance

estate planning or international succession planning aims at a better distribution of personal property in the civil and fiscal sense between different countries and legal institutions in order to simplify the regulation of future inheritance. Subsequently, these preventive measures make it possible to ensure the undisputed and often more tax-attractive transfer of inheritance property to heirs. Methods of planning: a) Testament b) Donation c) Corporate and trust institutions. For the preparation of international inheritance can also be used corporate or fiduciary form of organization of property for the purposes of its inheritance. The transfer of immovable property abroad as a contribution to the authorized capital of a business entity will make it possible to subordinate all international inheritance to a single inheritance law - the law at the place of residence of the testator. hereditary trust- is a typical institution of the Anglo-Saxon legal system and is a special kind of trust management of hereditary property, established in advance by an interested person. Finally, in order to consolidate and ensure proper management of property located in different countries of the world, institutions such as Pension Fund or insurance organization. The scheme of their work is quite simple and involves the transfer of all or part of the property of the person concerned for the purpose of making insurance or pension payments to the persons indicated by him after his death.

Consular marriages

marriages between citizens of the Russian Federation living outside the territory of the Russian Federation are concluded in diplomatic missions or consular offices of the Russian Federation. marriages between foreign citizens agreements concluded on the territory of the Russian Federation in diplomatic missions and consular offices of foreign states are recognized on the basis of reciprocity as valid in the Russian Federation if these persons at the time of marriage were citizens of the foreign state that appointed the ambassador or consul in the Russian Federation.

Lame" marriages

"Lame" marriages- marriages that give rise to legal consequences in one state and are considered invalid in another. This problem is generated by the fact that many countries do not recognize the form and procedure for marriage if they differ from their national regulations. For example, in Israel, mixed marriages contracted abroad are recognized only if the wedding took place in a synagogue. Limping marriages are a serious destabilizing phenomenon in international life, give rise to legal uncertainty and entail negative consequences. An attempt was made to eliminate these shortcomings with the help of the Hague Convention on the Settlement of Conflicts of Laws in the Field of Marriage of 1995. However, this Convention has not yet entered into force, since it has a limited circle of participants and states that do not recognize marriages performed abroad, the Convention does not joined.

Legalization of documents

Under legalization is understood as the fact of confirmation that the document emanating from the authorities of the state or drawn up with their participation, complies with the legislation of this country. Legalization procedure consists in certifying the authenticity of the signature of an official on the document and the seal of the authorized state body, as well as the compliance of the content of the document with the requirements of the legislation of the state that issued it, which confirms its legal force. The need and procedure for the legalization of title documents in world practice can be divided into four categories: 1. Documents requiring mandatory consular legalization; 2. Documents recognized as valid on the territory of other states after passing through a simplified legalization procedure - affixing an apostel; 3. Documents mutually recognized on the territory of foreign states, participants in international agreements, in the absence of legalization; 4. Documents that can be legalized in the Chamber of Commerce and Industry of the Russian Federation. The legalization of documents issued by the authorized bodies of the Russian Federation for presentation abroad, on the territory of Russia, is entrusted to the Ministry of Foreign Affairs of the Russian Federation. Responsible for fulfilling the obligation to legalize documents is Consular Department Ministry of Foreign Affairs of the Russian Federation. Abroad, the powers to certify documents drawn up with the participation of official bodies on the territory of the host country are vested in the consular offices of the Russian Federation in these foreign states. To the main international acts on the abolition of the legalization of documents issued by a foreign state is the Hague Convention of October 5, 1961. This Convention was ratified by Russia on May 31, 1992. Accordingly, for all documents intended for submission to the official bodies of the States Parties to the Convention, a simplified procedure for certifying the compliance of the drawn up document with the legislation of the country that issued such a document is established.

116. Rules for determining jurisdiction: general rule, alternative jurisdiction

Basic rule for establishing jurisdiction- this is the territorial jurisdiction at the place of residence of the defendant (paragraph 2 of article 402 of the Code of Civil Procedure). Alternative jurisdiction- the rule of choice of jurisdiction for a dispute that can be considered in the courts of several states and the parties have the right to choose jurisdiction. The Arbitration Procedure Code of the Russian Federation (Article 247) and the Code of Civil Procedure of the Russian Federation (Article 402) contain additional features that make it possible to attribute the case to the competence of the Russian courts.

117. Jurisdiction Rules: Exclusive Jurisdiction

exclusive jurisdiction means that the dispute is under the jurisdiction only of the courts of a certain state with its exclusion from the jurisdiction of the courts of another state. In the Russian Federation - disputes over Russian real estate, transportation (if the carrier is located in the Russian Federation), dissolution of the marriage of a citizen of the Russian Federation with a foreigner, if both live in the territory of the Russian Federation, cases affecting the personal status of persons living in the Russian Federation. Exclusive jurisdiction for the Arbitration Courts - cases of state property, bankruptcy of a Russian company.

118. Rules for determining jurisdiction: contractual jurisdiction

Contractual jurisdiction– determination of jurisdiction based on the agreement of the parties in favor of the court of any state. Contractual jurisdiction is formalized in prorogation and derogation agreements. Derogation agreement- this is the exclusion of the case from the competence of the court of this state (although it is within its jurisdiction under local laws) and its transfer to the court of a foreign state. prorogation agreement- a case that is not within the jurisdiction of a local court under the laws of a given state (with jurisdiction over the courts of another state), in accordance with the agreement of the parties, is submitted for consideration to this particular court. Any prorogative agreement is simultaneously derogatory. As a general rule, a prorogatory agreement cannot change the generic (substantive) jurisdiction.

Arbitration Agreements

Arbitration Agreement represents the agreed will of the parties to refer the dispute between them to the ICA. The specificity of the ICA lies in the voluntariness of applying to arbitration and, at the same time, in the binding nature of the arbitration agreement. Feature of the arbitration agreement: it is strictly binding on the parties and they cannot avoid submitting the dispute to arbitration; the court of general jurisdiction has no right to either cancel the arbitration agreement or review the decision of the arbitration on the merits. Types of Arbitration Agreements:

1. arbitration clause- this is an agreement of the parties to the contract, directly included in its text, on the arbitration of disputes that may potentially arise. This is a condition to refer the case to arbitration in the event of a dispute in the future, which provides for the jurisdiction of a certain arbitral tribunal.

2 . arbitration entry- this is an agreement of the parties on the arbitration of a dispute that has already arisen, separate from the main contract. This is the most preferred type of arbitration agreement, since the agreement of the parties to arbitrate is made when disagreements have already arisen and the parties clearly understand the nature of the dispute.

3 . arbitration agreement is an independent agreement between the parties to arbitrate disputes that may arise in the future in connection with this contract or group of contracts or in connection with joint activities in general.

The concept and subject of PIL

PIL- an independent, polysystemic, complex branch of law that combines the norms of international and national law and regulates international relations. The subject of any science- social relations that this science studies and regulates. For PIL subject it is characteristic that these social relations develop in the international sphere (complicated by a foreign element). Also, a distinctive feature is their character - private law (non-powerful). These are basically civil law relations regulated by the norms of civil law. To a large extent, private law relations include family and marriage, labor, land relations, relations regarding property and related non-property rights. These relations most often arise between individual entrepreneurs and legal entities, in some cases the subject-state. These relations are also called cross-border. Since these social relations are international, the ways of their regulation are considered by the laws of different states in different ways. And the main purpose of PIL is to resolve these collisions. Based on this, the following signs of the subject of PIL: - these relations are international; (associated with the legal systems of different states); - They are private.

Place of PIL in the system of law: points of view

1. PIL is part of the civil law of each state. 2. PIL is an independent branch of international law of each state. 3. MChP - like the WFP, part of the MP. 4. PIL is a complex legal array at the junction of international and national law.

PIL occupies a special place in the global legal system. Its main specificity lies in the fact that PIL is a branch of national law, one of the private law branches of the law of any state (Russian PIL, French PIL, etc.). It is included in the system of national private law along with civil, commercial, commercial, family and labor law.

However, PIL is a very specific subsystem of the national law of individual states. The relationship between private international law and other branches of national private law can be defined as follows:

1. The subjects of national private law are individuals and legal entities; States acting as entities of private law.

Its subjects may also be international intergovernmental organizations acting as entities of private law. All foreign persons (individuals and legal entities, a foreign state), enterprises with foreign investments, transnational corporations, international legal entities are exclusively PPP subjects.

2. Non-state civil (in the broad sense of the word) legal relations are the object of regulation of national private law. The object of regulation can also be diagonal (state-non-state) relations of a civil law nature. In private international law, these relations are necessarily burdened with a foreign element.
3. The method of regulation in private law is the method of decentralization and autonomy of the will of the parties. The method of its implementation is the application of substantive legal norms. This also applies to PIL, but here the main way to implement the general method of decentralization is the method of overcoming conflicts - the application of conflict rules.
4. The sources of private law are national legislation (primarily); international law (which is included in the national legal system of most states of the world); jurisprudence and doctrine; analogy between law and law. The list of sources of international private law should be supplemented by the autonomy of the will of the parties.
5. The scope of national private law is the national territory of the given state. This also applies to private international law, but the existence of a regional PIL (European, Latin American) and the process of forming a universal PIL should be emphasized.
6. Responsibility in national private law (including international law) has a civil law (contractual or tort) character.
7. The special nature and paradoxical nature of the PIL norms are already expressed in the term itself - "domestic (national) private international law". At first glance, the terminology itself produces an absurd impression: there cannot be a branch of law that is both domestic (national) and international. In fact, there is nothing absurd here - we are simply talking about a legal system designed to directly regulate international relations of a non-state nature (arising in private life).

The paradoxical nature of PIL norms is also expressed in the fact that one of its main sources is directly international public law, which plays an extremely important role in the formation of national PIL. It is customary to talk about the dual nature of the norms and sources of private international law.

The concept and subject of PIL

PIL- branch of law, cat. regulates relations with a foreign element.

foreign element can appear in three ways.

1) One of the subjects of the p / o yavl foreign fl (foreign citizen, stateless, bipatride, refugee); foreign jul, m / n jul, TNK; m/n intergovernmental and non-governmental organizations; foreign state.

2) The object of the legal relationship is located abroad (eg: inheritance abroad)

3) The legal fact with which the legal relationship is connected takes place abroad (marriage, opening of an inheritance, causing harm, registration of a company)

PIL - area of national legal regulation; regulates not public relations, but private relations complicated by a foreign element.

The terms "conflict law" and "private international law" are used interchangeably and mean the domestic system of legal norms for resolving the following conflicts:

1) the courts of which state should consider the dispute;

2) the law of which state should be applied.

collision- discrepancy between the content of various rules of law governing the same issue. A conflict in PIL is a conflict between the material and the norms of national private law (ex: Russian Federation and Germany).

Causes of collisions:

1) the presence of a foreign element

2) different content of the private law of individual states

Types of collisions:

1. spatial, i.e. territorial:

1.1. international (international) collisions of individual states

1.2. conflicts of laws of intrastate entities (US states, in the provinces in Canada, federal subjects in the Russian Federation)

2. intemporal - the result of the action of laws in time:

2.1. change in substantive regulation

2.2. change of conflict registration

3. interpersonal - conflicts of laws applicable to different categories of persons; conflicts between customary and religious law and civil law.

To subject PIL includes only those civil law relations that are international in nature. In the legal literature, such relations are also called cross-border relations, or relations complicated by a foreign element.

The subject of private international law is non-power relations, complicated by a foreign (or international) element, in which the participants in these relations realize their private interests in the field of international cooperation.

PIL studies civil law relations. A specific difference between civil law relations included in PIL is the fact that PIL studies only a special group of civil law relations that are international in nature. The scope of PIL also includes family and labor relations, the regulation of which is carried out using the categories of civil law (legal capacity, contract, etc.).

The difference between the word "international" in MPP (relations between different states) and PIL (relations between citizens and legal entities of different states).

PIL methods

The PIL method is a set of specific techniques, methods and means of legal influence aimed at overcoming conflicts of law of different states.

Methods allow to overcome collisions:

1) conflict law

2) substantive law: in international documents and in national law (Article 1186)

Substantive method

in the literature is associated with the unification of the substantive norms of private law. One of the reasons for the emergence of conflicts and the problem of choice of law are the differences in the content of the private law of different states. Consequently, the conflict problem can be removed if uniform, identical in content legal norms are created and applied.

Ways to achieve uniformity:

In the process of interaction between states, national legal systems are mutually influenced, as a result of which in the private law of different states there are rules that are identical in content (for example, the Napoleonic Code is valid both in France and Belgium). However, no actual coincidence in the private law of different countries excludes the possibility of conflicts and the need to choose the law: formally coinciding norms of positive law receive different interpretations in real legal practice, are subject to changes and additions, which leads to different regulation of homogeneous relations.

Thanks to this method, uniform substantive legal norms are created that regulate trade, production, scientific, technical, transport and other communications between organizations and firms of different states.

Legal sources:

Math-rights method is considered more perfect than the collision method, because with the mat-pr method, the mat norm is directly applied without resorting to the conflict norm.

Advantages:

© much greater certainty for the participants in the relevant relationship, because they and the bodies that will apply them (for example, in the event of a dispute), the mat-pr norms are always known in advance

Flaws:

Collision method

KN (collisions norm) - a norm that determines the right of which state db is applied to the corresponding p / o.

Since the conflict rule is a rule of a referential nature, it can only be used together with any substantive law rules to which it refers - the rules of law that decide the issue on the merits. It only indicates which country's laws are to be applied.

Disadvantages of the collision method:

the use of CI referring to other states complicates the activity of the court, which is obliged to apply foreign law on the basis of CI (by virtue of international law or domestic law). Establishing the content of foreign law is not easy
the method does not contribute to ensuring uniformity in resolving conflict situations, tk. in different states, the KN in relation to the same subject may not coincide. Therefore, the final result will depend on the court of which state the dispute is being considered
usually apply the norms of the general x-ra, designed to regulate ALL private law relations that are NOT designed for rel-I with a foreign element.

An essential feature of the regulation of civil law relations with a foreign element is that in a number of cases the PIL norms do not contain a direct answer, a direct prescription on how to resolve a particular issue. These rules only indicate which legislation is to be applied.

Together with the substantive legal norm to which it refers, the conflict norm expresses a certain rule of conduct for participants in civil circulation.

The ratio of substantive and conflict methods regulation in PIL needs to be considered in at least 2 aspects:

1) one aspect is determined by the fact that the conflict rule, together with the internal substantive law to which it refers, form a rule of conduct for participants in civil transactions;

2) another aspect is related to the inclusion of substantive legal norms in PIL as its integral part, based (as well as conflict of laws) on domestic legislation, international treaties and customs.

Place of PIL in the legal system

Discussions about the very concept of PIL, its subject matter, norms, methods of legal regulation are primarily due to a complex phenomenon, denoted by three words - “private international law”, each of which has its own content:

International - means the presence of a foreign element;

· Private - indicates the nature of regulated relations;

· Law - defines a system of legally binding norms.

Even the very combination of terms that formulate the concept makes it possible to characterize PIL as a complex, non-traditional branch of law. It is no coincidence that PIL is called a "hybrid of jurisprudence" or a "puzzle for professors." On the one hand, regulation is carried out between subjects of internal law, mostly between individuals and legal entities; on the other hand, relations are international in nature, and often their regulation is mediated by international norms.

The question of what constitutes MCHP is debatable:

1. Some define PIL as an integral part of a unified system of international law, which includes international public and international private law (S.B. Krylov, V.E. Grabar, I.P. Blishchenko). This point of view was inherent, for the most part, scientists of the Soviet era.

2. Others characterize PIL as a polysystemic complex containing elements of both domestic and international public law (A.N. Makarov, R.A. Mullerson). This position has already lost its popularity. However, V.V. Gavrilov believes that the point of view of A.N. Makarova (beginning of the 20th century), shared by the modern researcher of the MChP R.A. Mullerson, is "the closest to reality." In other words, it is the most suitable for reflecting the essence of PIL. V.V. himself Gavrilov calls PIL in general an artificial formation, consisting of the norms of various legal systems, arguing that the concept of "private international law" is more of an educational and methodological term than a designation of any system of norms. Such an assessment can hardly be called constructive and worthy of attention in the study of PIL.

3. The most common view is the inclusion of PIL in the legal system of national branches of law, where it occupies an independent legal niche. This opinion was expressed by both the classics (L.A. Lunts, I.O. Peretersky) and most modern scientists (M.M. Boguslavsky, G.K. Dmitrieva, V.P. Zvekov, S.N. Lebedev, A. L. Makovsky, N. I. Marysheva, G. K. Matveev, A. A. Rubanov).

* The point of view of L.P. Anufrieva, who believes that PIL is not a branch, but a subsystem of Russian law. According to the author, within the framework of the national legal system of each state, there is a special subsystem - international private law - with a unique object, methods of regulation and internal organization. The author substantiates his thesis with several arguments, among which the main one is the argument that the qualification of PIL as a branch of national law, along with other branches, “would jeopardize the justification for applying the relevant criteria” when separating the set of norms as a branch of law. Indeed, PIL includes relations from different national branches of Russian law (civil, family, labor, procedural). In addition, the specific conflict rules that permeate the entire "frame" of this law are the foundation, an integral part of the normative composition of private international law. Perhaps, as a staging scientific question, one can declare the status of PIL as a subsystem of Russian law. However, the current state of the Russian legislation on PIL, huge gaps in law enforcement and insufficient research on the status of PIL predetermine the expediency of qualifying PIL at the present stage as a branch of Russian law.

Considering the most acceptable for characterizing the status of PIL is the widespread point of view that PIL is a branch of national law, it is necessary to indicate that each state independently develops and adopts the rules governing the choice of a legal system in situations where civil legal relations are of an international nature. Conflict rules in all legal systems have their own content and sometimes differ markedly from each other, despite the fact that they establish rules for the same factual circumstances.

A judge considering a civil dispute complicated by a foreign element will first of all refer to national conflict rules. So, the court of the Russian Federation, depending on the type of legal relationship, is obliged to apply the conflict of laws rules contained in Section VI of the Civil Code of the Russian Federation or in Section 7 of the Investigative Committee of the Russian Federation, in a situation where the civil legal relationship is of an international nature. The legal systems of England, France, Ukraine, the USA and other states have their own national conflict regulation.

International private law is closely related to international public law, since relations between subjects of domestic law exist in international life. A number of issues on which states with different legal systems have managed to reach a compromise are resolved through the conclusion of international agreements. International treaties may contain both substantive and conflict of laws rules. The court, applying an international conflict of laws rule, will be forced, however, as in the application of national conflict of laws rules, to subsequently choose the appropriate substantive law, which will allow resolving the dispute on the merits.

Treaties containing substantive legal norms provide the states-participants of these treaties with ready-made regulation of relations, without searching for competent law. For example, the Berne Convention for the Protection of Artistic and Literary Works (1886) provides for special rules for translations, publication of works or their republishing with the consent of the authors. The states that have ratified this Convention (the Russian Federation since 1995) include its norms in their legal system. At the same time, the scope of the Berne Convention has its own legal space different from the scope of the national law.

Thus, national and international regulation represent two independent types of streamlining social relations. In private international law, as in no other branch of domestic law, the "volume" of international regulation corresponds to, and in some areas even exceeds, the "volume" of national regulation.

PIL sources

The source of law is a form of expression of legal norms.

PIL is a complex branch of law that combines the norms of domestic legislation, international treaties and customs that regulate property and personal non-property relations "complicated by a foreign element" (i.e. relations of an international nature), using conflict-of-law and substantive methods .

Main types of sources:

m/n Dr.
internal number
judicial and arb practice
customs

Inter agreements contain 2 groups of norms:

addressed to the state (order of entry into force, the right to reservations, ratification and denunciation)
addressed to private participants of the relevant relations

In the preparation of agreements, m/n organizations involved in the development of draft m/n agreements play an important role.

1. The Hague PIL Conference:

1.1. Conv. on issues of gr process 1954

1.2. K. on the delivery abroad of judicial and extrajudicial documents on gr or bargaining cases 1965

1.3. K. on obtaining evidence abroad on gr and bargaining cases 1970

1.4. K. on facilitating access to justice abroad 1980

1.5. K., canceling the requirement of legalization of foreign official documents 1961

1.6. K. on marriage and its annulment 1978

1.7. K. on the law applicable to matrimonial property regimes 1978

1.8. K. on the protection of children and cooperation in the region m / n adoption / adoption 1993

1.9. K. on conflicts of laws regarding the form of testamentary dispositions 1961

1.10. K. o pr applicable to manufacturer's liability 1973, etc.

2. International Institute for the Unification of Private Law (UNIDROIT):

2.1. Geneva Conventions

2.1.1. about Dr. m / n road transport of goods 1956

2.1.2. about the international road transport of passengers and luggage 1973

2.1.3. about Dr. m / n transportation of passengers and luggage by inland waterways 1976

2.1.4. on representation under m / n K-P goods 1983

2.2. Ottawa conventions

2.2.1. about m / n fin. leasing 1988

2.2.2. about m/n factoring 1988

2.3. Convention on Stolen or Illicitly Exported Cultural Property 1995

2.4. Principles m / n commercial Dr. 1994

3. UN Commission on the Law of M / N Trade - UNCITRAL:

3.1. Vienna K. about Dr. m / n K-P goods 1980

3.2. New York to. UN about the limitation period in m / n K-P goods 1974

3.3. NY to. UN about m / n transferable and m / n promissory notes 1988

3.4. UN Hamburg C. on the carriage of goods by sea 1978

3.5. UNCITRAL Arbitration Rules and UNCITRAL Conciliation Rules

4. CIS – Model GC(there is a section "MCHP")

In Russian law, an inter-branch codification of PIL has been carried out - the Civil, Civil Procedure, Arbitration Procedure and Family Codes, the Merchant Shipping Code include special chapters and sections that regulate private law relations with a foreign element. The main sources of the Russian PIL are Section VI of the Civil Code of the Russian Federation, Section VII of the RF IC, Chapter XXVI of the RF CTM, Section V of the Code of Civil Procedure of the Russian Federation, Chapters 31, 32, 33 of the APC of the Russian Federation.

International customs differ from international treaties in that they are unwritten. The complexity of the nature of international custom lies in the fact that it is possible to determine a clear time limit for recognizing it as legally binding only empirically. This is reflected in law enforcement practice. Customs are rules developed by participants in international relations in a practical way, as a result of systematically repeated and uniform behavior in similar circumstances.

A judicial precedent is a decision of a higher court that has an imperative, decisive significance for lower courts in resolving similar cases in the future. No court decision automatically becomes a precedent; it must receive the status of a precedent in the manner prescribed by law.

The doctrine of law is the statements of scientists recognized at the official state or international level. In any civilized state, there is a "right to disagree" - scientists have the right to express different opinions on the same issue. Public authorities are free to choose between the various points of view expressed by lawyers. The Russian legislator takes into account the doctrine as a source of PIL in other states (Article 1191 of the Civil Code of the Russian Federation: “when applying foreign law, the court establishes the content of its norms in accordance with their official interpretation, application practice and doctrine in the relevant foreign state”, Art. 14 of the Arbitration Procedure Code of the Russian Federation), but does not consider the developments of Russian scientists even an auxiliary source of law.

International Treaties

MT is an agreement concluded between states.

§ Bilateral

§ Multilateral(Washington Convention for the Settlement of Investment Disputes between States and Persons of Other States, 1965, signed by 152 states (valid for 135 states), Berne Convention for the Protection of Literary and Artistic Works, 1886 (more than 150 states participate, UNIDROIT Convention on International Financial Leasing 1988)

§ Universal ( UN Vienna Convention on Contracts for the International Sale of Goods, 1980 (65 states, including Russia). New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, - 135 states, incl. Russia).

§ Regional

§ self-executed

§ Non-self-executable

On November 10, 2004, the UN General Assembly adopted the Convention on Jurisdictional Immunities of States and Their Property. It was open for signature until January 17, 2007.

Under regional agreements Usually, agreements are understood that are accepted and usually operate within the same region, for example, within the framework of a regional integration grouping of states.

Of the conventions concluded at the regional level (CIS level), the main ones are:

Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 1993 (Minsk Convention 1993) and its Protocol 1997. The new version of the convention was adopted in Chisinau on October 7, 2002 (the Russian Federation did not ratify it). For the participants of the Chisinau Convention, the Minsk Convention ceases to be valid.

Agreement on the procedure for resolving disputes related to the implementation of economic activities 1992 (Kiev Agreement)

Agreement on the Procedure for Mutual Execution of Decisions of Arbitration, Economic, and Economic Courts in the Territories of the Commonwealth Member States 1998 (Moscow Agreement)

Eurasian Patent Convention 1994

Norms self-executing contracts due to their detailed elaboration and completeness, they can be used to regulate the relevant relations without any specific and supplementary norms.

Non-self-executing contract , even if the state authorizes the application of its rules within the country, requires for the execution of an act of domestic rule-making, specifying the provisions of the relevant document.

-- treaties on human rights, on the legal status of citizens

-- legal aid contracts

-- Treaties for the promotion and protection of foreign investment

--contracts in the field of international trade and economic cooperation

--contracts on property rights

- contracts in the field of transport, transportation of goods and passengers

-- agreements on international settlements

- double taxation agreements

-- contracts in the field of intellectual property

--contracts in the field of family and inheritance law

-- social security agreements

--consular conventions

--contracts in the field of international civil procedure

--contracts on issues of international commercial arbitration

Great work on the unification of PIL norms is carried out by the UN Conference on Trade and Development (UNCTAD), the International Maritime Organization (IMO), the International Civil Aviation Organization (ICAO), the World Intellectual Property Organization (WIPO), etc.

In 1968, the member countries of the EEC concluded the Brussels Convention on Judicial Competence and Enforcement of Judgments in Civil and Commercial Matters (revised in 1979).

Of the numerous conventions of a regional nature concluded on the American continent, the Bustamante Code should be noted. The Code, consisting of 437 articles, is the most detailed MD on PIL issues. It was adopted in 1928 at the 6th Pan American Conference and ratified by 15 countries of Central and South America.

Since 1975, conferences on private international law of the countries of the Americas have been regularly held. At a conference in Montevideo in 1989, 4 conventions were adopted (on the obligation to maintain persons, on the return of minors from other countries, on the international carriage of goods by road).

For a number of developing countries, in the absence of legal regulation in a number of areas, an interest in international unification, both regional and universal, is characteristic. Thus, in 1962, an agreement was signed in Libreville on the establishment of the Afro-Malagasy Office of Industrial Property (OAMPI), which provides for uniform rules for the protection of inventions, registration of trademarks and industrial designs. This agreement was revised and supplemented in 1977. In 1978 a similar agreement was concluded by a group of other African states, former British colonies.

The Afro-Asian Legal Advisory Council has adopted a Model Agreement for Bilateral Legal Aid and Evidence Agreements.

According to paragraph 2 of Art. 7 of the Civil Code of the Russian Federation to relations regulated by civil law, international treaties apply directly unless it follows from an international treaty that its application requires issuance of an internal act. If an international treaty of the Russian Federation establishes other rules than those provided for by civil law, international treaty rules apply.

The Federal Law on International Treaties of 1995 is in force in the Russian Federation.

Agreements of the Russian Federation on legal assistance with: Azerbaijan (1992), Albania (1995), Algeria (1982), Argentina (2000), Bulgaria (1975), Hungary (1958, 1971), Vietnam (1981) .), Greece (1981), Georgia (1995), Egypt (1997), India (2000), Iraq (1973), Iran (1996), Spain (1990). ), Italy (1979), Yemen (1985), Cyprus (1984), China (1992), North Korea (1957), Cuba (1984), Kyrgyzstan (1992) , Latvia (1993), Lithuania (1992), Moldova (1993), Mongolia (1988), Poland (1996), Romania (1958), Turkey (1997), Tunisia (1984), Finland (1978), Czechoslovakia (1982), Estonia (1993). On January 17, 2001, a bilateral agreement was concluded with Belarus on the procedure for the mutual execution of judicial acts on economic disputes.

On July 22, 199, the Treaty between the Russian Federation and Belarus on Equal Rights of Citizens entered into force. One of the oldest bilateral treaties of the Russian Federation is the Agreement on the Execution of Letters of Request, concluded between the USSR and the USA by means of an exchange of notes in 1935.

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