Lecture notes on private international law
Ph.D. Chupanov Andrey Sergeevich
Topic 1. Concept, subject and system of private international law
1. Concept, subject, principles and norms of private international law.
2. Subjects, sources and system of private international law.
Guidelines. Currently, private international law acts as an independent system of law, which has its own special, specific subject (object) of regulation, methods and sources that distinguish it from close, related legal systems: public international and domestic civil law.
The specificity of private international law is that, while maintaining differences in the legal systems of states, it is private international law, with the help of so-called conflict of laws rules, that is called upon to determine which state’s law is to be applied in appropriate cases.
1 question. Concept, subject, principles and norms of private international law.
The term “private international law” was first proposed by US Supreme Court Justice and Harvard Law School professor Joseph Story in his work entitled “Commentary on Conflict of Laws,” which appeared in 1834 and was used along with the already existing and widely recognized term at that time "conflict of laws".
In Russia, the term "private international law" also appeared in the 19th century. A significant contribution to the development of the subject of private international law was made by the outstanding Russian lawyer F.F. Martens. Published by him for the first time in 1882-1883. the fundamental work “Modern International Law of Civilized Nations”, which went through several editions and translated into many foreign languages; contained a separate chapter “Private International Law”, F.F. Martens rightly pointed out two essential characteristics of private international law: the civil law nature of the relations regulated by it, and the presence of an international element in such relations. He wrote that “private international law is an organic part of the territorial civil law of the country...” However, he immediately noted that “international communication is the only true and positive basis on which private international law can develop, and, based on it, only and tangled and complex questions concerning the application of the laws of different States may be resolved.” Civil legal relations including a foreign element F.F. Martens called "international civil relations".
International private law is a complex legal system 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), with the help of conflict of laws and substantive legal methods.
From this definition it is clear that private international law has its own subject property and personal non-property relations of a civil law nature, which brings it closer to domestic civil law. On the other hand, private international law is similar to public international law in the presence of various international elements in its composition. The term "international", used in the context of private international law, differs from the similar term of public international law. It means that relations of a civil law nature go beyond the framework of the domestic legal system in certain cases, which thereby creates the possibility of applying foreign law, as well as the norms of international treaties and customs.
Based on the foregoing, we can conclude that the subject of private international law consists of civil relations complicated by a foreign element.
The foreign element, which complicates property and personal non-property relations of a civil law nature, which are the subject of private international law, appears in three forms:
1) the object of such legal relations is located on the territory of a foreign state (for example, inherited property - real estate, located abroad);
2) the subjects of such legal relations have different state affiliations (for example, trading companies concluding an international contract are created and located in different states);
3) the legal fact underlying the emergence of such legal relations took place on the territory of a foreign state (for example, the conclusion of a foreign economic transaction, the drawing up of a will, the infliction of harm took place abroad).
The presence of a foreign element in civil law relations, as well as different regulation of these relations in the legislation of different states, gives rise to a conflict of laws problem. General method private international law is to eliminate the conflict of law that has arisen, which is done in several unique ways.
In addition to the general principles of public international law, this branch of law also operates with a special principle, which can be formulated as the principle autonomy of will sides Autonomy of will is usually understood as an institution that unites rules that regulate issues arising as a result of the parties to a contract concluding an agreement on the law applicable to their relations.
The rules of international private law are usually called conflict, conflict, reference or law enforcement.
The purpose of conflict of laws rules is to determine the law that should be applicable to relations arising in the conditions of international communication, when the legal order of several states may claim to regulate such relations and it is necessary to resolve the conflict that has arisen. The conflict of laws rules of private international law resolve this conflict by subordinating relations with a foreign element to the law of a particular country.
1. Conflicts of laws and their types. The meaning and purposes of applying foreign law. The problem of “limping relationships” in private law.
3. Foreign element in private law relations
lex mercatoria.
8. Types of conflict of laws rules
14 Reversion and reference to the law of a third state
18. Conflict of laws issues of legal capacity of an individual. Restriction of legal capacity and recognition of a foreigner as incompetent. Confession unknown missing. and announced those who died in an emergency situation.
20. Legal status foreign citizens and stateless persons in the Russian Federation. Labor rights foreigners.
21.Personal law of a legal entity.
32. Limitation issues
46. International jurisdiction. Criteria for determining jurisdiction.
49. Effect of foreign official documents in space. Legalization and apostille
- The concept of private international law
International private lawis an independent, complex branch of law that combines the norms of international and national law and regulates international civil relations, complicated by a foreign element.
PIL
Subject of regulation private international lawthese are private law relations complicated by a foreign element.
Foreign elementmay appearin three versions:
1. Subject of a legal relationship foreign person, foreigner (foreign citizen, stateless person, bipatrid person, refugee; foreign legal entity, enterprise with foreign investments, international legal entity; international intergovernmental and non-governmental organizations; foreign state).
2. The object of the legal relationship is located abroad.
3. The legal fact with which the legal relationship is connected takes place abroad.
- Conflicts of laws and their types. The meaning and purposes of applying foreign law. The problem of “limping relationships” in private law.
Conflict of lawsthis is a phenomenon generated by the presence of a foreign element in a relationship regulated by private law and the different content of civil law of different states with which this legal relationship is connected, expressed in the need to choose the law between the laws of different states.
Collisions can be divided intotwo large groups :
a) conflicts between the legal systems of individual states;
b) domestic legal conflicts.
Domestic legal conflicts are divided into:
Interlocal collisions
Interpersonal conflicts.
Conflicts between separate sources of law of the same state(collisions between sources of different legal force, equal in force sources of law accepted in different time, between sources of domestic law and international treaties of this state etc.). Any state establishes its own system of rules for resolving such conflicts.
Conflicts between individual sources of national law, interregional and interpersonal conflicts do not directly relate to the subject of international private law.
This approach is not universal - in the countries of the Anglo-American legal family, the subject of conflict or conflict of laws law includes all types of legal conflicts.
The meaning and purposes of applying foreign lawThe Civil Code of the Russian Federation indicates that if it is impossible to determine the law to be applied, the law most closely related to civil legal relations complicated by a foreign element is applied.
"Limping Relationship"The essence of the phenomenon is that a legal relationship recognized in one state and having legal rights there. by force, not recognized on the territory. other states. No. , a marriage entered into by a foreigner and a Russian woman in the Russian Federation can be recognized as invalid in foreign states due to the fact that each state has its own own system Mchp norms. And a foreign state, for example, may require recognition foreign marriage attracting legal consequences of compliance with conditions other than those established in the laws of the Russian Federation.
2. Subject and method of private law. The place of private law in the legal system.
PIL regulates relations that arise in the international sphere.
2 signs , characterizing the social relations that make up the subject of PIL:
This is an international relationship
This is a private law relationship.
Thus, the subject of private law private law relations of an international nature, or international private law relations. Although there is no generally accepted definition.
PIL method a set of specific techniques, methods and means of legal influence aimed at overcoming conflicts of law of different states.
2 main methods:
Conflict of laws method (selection of a competent legal order to resolve a specific case)
Unification of substantive rules of private law (use of international legal forms in the regulation of private legal relations)
PIL this is a specific system of rules governing cross-border relations in the field of private law.
In the global legal system PIL takes special place. Its main specificity is that private law is a branch of national law, one of the private law branches of the law of any state. It is included in the system of national private law along with civil, trade, commercial, family and labor.
International private law is a very specific subsystem of the national law of individual states.
International private law is a complex branch of law and jurisprudence. PIL is most closely related to national private law. At the same time, its norms have a dual and paradoxical character, since PIL is very closely related to public international law. International private law is not a branch of public international law, but their distinction is not absolute.
3. Foreign element in private law relations.
Private legal relations acquire an international character when they include “ foreign element" (IE). IE gives them a new essential quality, generating the need for special techniques and means of legal regulation. As a result, a new conceptual entity appears private law relationships complicated by IE.
In MPP IE understood in 3 meanings:
1) Subject of legal relationship(the relationship becomes international if its participants are individuals and legal entities of different states)
2) Object of legal relationship(the relationship becomes international if it arises regarding property located abroad)
3) Legal fact(relations become international if the legal fact took place on the territory of a foreign state).
The presence of one IE in legal relations is sufficient for them to acquire an international character.
4. International treaties in international private law
International treatyit is adjustableinternational lawagreement concluded between states and/or other subjects of international law.
Classification:
1)by circle of participants:
a) bilateral;
b) multilateral
2)if other participants can join:
a) closed;
b) open.
3) by object:
a) agreements on political issues
b) agreements on legal issues, etc.
Stages of conclusioninternational treaties:
1) putting forward a contractual initiative,
2) preparation of the text,
3) acceptance of the text,
4) establishing authenticity texts in different languages,
5)signing,
6) expression of consent of the contracting parties to be bound by the agreement.
An international treaty plays a big role in creating international private law rules. Reference to international treaties is not specific to international private law; the norms of international treaties can also be applied to settle internal civil relations.
An international treaty is not a source of domestic law, including international private law as one of the branches of domestic law. In cross-border private law relations, the effect of an international treaty is mediated by national legal acts. As a result, an international treaty acts as a national legal act, which eliminates the problem of duality of sources of international private law.
5. Domestic legislation in the field of international private law.
There is no codified source of private law in the Russian Federation. Thus, the norms governing relations in international private law (within the framework of domestic legislation) are found in various laws and other industry regulations.
Currently, there are 3 main sources regulating 2 blocks of relations included in the subject of PIL civil and family-marriage. These include:
1) Civil Code of the Russian Federation
2) RF IC
In addition to the 3 main sources, there are many laws and regulations:
- Federal Law “On International Commercial Arbitration”
- Federal Law “On Foreign Investments in the Russian Federation”
- Federal Law “On Citizenship of the Russian Federation”, etc.
6. Customs and usages in private law. Doctrine lex mercatoria.
Customs these are rules developed by participants in international relations in a practical way, as a result of systematically repeating and monotonous behavior in similar circumstances. Unlike custom, a uniform, stable rule that has developed in practice, but does not have legal force, called custom.
IOs are reflected in law enforcement practice (for example, in resolutions of international organizations). In order for the practice to acquire x-r usual rules of law, duration, regularity, stability and repeatability of its application are necessary.
In PIL the most important role is played byinternational trade customs, business customs and merchant shipping customs. MO is recognized as a source of law in Russian legislation. IR is often associated with the existence of the concept lex mercatoria (international commercial law). Underinternational commercial lawunderstand the systemnon-state regulationforeign trade activities. The advantages of international commercial law compared to national legislation and international treaties lie precisely in providing participants with international trade maximum freedom of action. The basis of the lex mercatoria resolutions-recommendations of international organizations on issues foreign trade. The WTO plays a major role in the development of international commercial law, MTP , UNCITRAL and other international organizations.
1) act as a stage in the law-making process leading to the formulation of an international legal norm
2) indirectly regulate international relationships, while remaining advisory rather than mandatory standards.
7. Conflict of laws rule: structure and elements. Basic types of collision bindings.
Conflict of laws ruleThis is a norm that determines which state’s law should be applied to a given private law relationship, complicated by a foreign element.
Its main featureThe conflict of laws rule specifies the procedure that is competent for a particular legal relationship.Second featureas a reference norm, it is applied together with those substantive private law norms to which it is referred.
Structure:
Volume,
Snap,
Sanction.
Main types of collision bindings:
Personal law (2 options: law of citizenship, law of residence)
Legal entity law
Law of location of a thing
Law chosen by the parties to a civil legal relationship
Law of the place where the act was performed (law of the place of the contract, law of the place of execution of the contract, law of the place of the marriage, law of the place of the injury)
Law of the seller's country
Law of closest connection
Work place law
Flag law.
8. Types of conflict of laws rules
The referential nature of conflict of laws rules means that their text does not contain a combination of hypothesis, disposition and sanction. Theyconsist of 2 elementsvolume and binding. The volume indicates the type of legal relationship being regulated, and the reference indicates the law to be applied to regulate the legal relationship complicated by a foreign element.To highlight various types conflict of laws rules, it is necessary to select criteria for their classification. Exists several such criteria, which include: 1) the form of conflict binding; 2) the nature of regulation; 3) territory of action.
By binding formconflict rules are:
Unilateral
Double-sided.
By the nature of regulationconflict of laws rules can be divided into:
Dispositive,
Imperative,
Alternative,
Cumulative.
By territory of operationconflict of laws rules are divided into:
Interstate,
Interregional.
9. Conflict of qualifications in private private enterprise. Interpretation of conflict of laws rules.
The legal qualification of a conflict of laws rule differs from the interpretation of other rules of law. The main difference: the actual circumstances are in the legal field of different states. The conflict of laws rule connects national law with foreign law, so the problem of qualification comes down to identifying from the point of view of the law of which state it is necessary to interpret legal categories contained in the conflict of laws rule itself. INPIL there is a theory of conflict of qualifications. Conflict of qualificationsis connected with the fact that in the law of different states textually identical legal concepts have different content. When using the same terminological concepts, the decision on the same case in the courts of different countries may be opposite.
There are several theories for resolving conflicts of qualifications.
1) Qualification according to your domestic law
2) Qualification according to the law of the state with which the relationship is most closely related
3) Autonomous qualification linking domestic law with foreign law.
The problems of definition, interpretation and application of legal norms are closely related to the conflict of qualifications. If a conflict of laws issue is resolved in favor of the application of a foreign law, then the rule applies: foreign law must be interpreted and applied in the same way as it is interpreted and applied in its “native” state by the “native” judge. Problems of definition, interpretation and application of foreign legal norms in the legislation of the Russian Federation are resolved in accordance with individual articles of the Civil Code of the Russian Federation and agroindustrial complex of the Russian Federation.
10. Public Policy Clause.
The application of foreign law should not violate the foundations of local law and order. A special institution has been developed in the International Private Enterprisepublic policy clause, i.e. foreign law chosen on the basis of the domestic conflict of laws rule is not applied, and subjective rights arising on its basis are not recognized if the consequences of such application are contrary to the public policy of the given state.
The recognition of the public order clause is explained by its necessity to protect the foundations of the legal system, the interests of society and the state.
Russian laws use 3 formulas for a public policy clause:
Basics of law and order
Sovereignty and security
Public order.
There are two types of public policy clauses known in world practice::
Positive (a general concept of positive clauses on public order as a certain set of internal rules of law, which, due to their special importance for the protection of the social and moral foundations of a given state, must always be applied, even if the domestic conflict of laws rule refers to foreign law).
Negative a clause, in contrast to a positive one, is based on the content of foreign law: foreign law, which should be applied according to the prescription of the national conflict of laws rule, should not be applied, since it or its individual rules are incompatible with the public policy of this state
11. Application of the law of a country with multiple legal systems.
The Civil Code of the Russian Federation provides a special rule on the application of the law of a country with multiple legal systems: if the law of a country in which several legal systems operate is subject to application, the legal system determined in accordance with the law of this country is used. If it cannot be established, in accordance with the law of that country, which of the legal systems should apply, the legal system with which the relationship is most closely related is applied. So first we must find out whether there is a rule that determines the law of which state, the province's lands will be in in this case act.
This article of the Civil Code of the Russian Federation invites the judge to find a special conflict of laws rule within someone else’s law that can resolve everything. But such norms do not exist in every legislation. For example, US law each state has its own law, formed from its own judicial precedents and laws adopted by it. As a result, conflicts arise between the laws of different states (interstate conflicts).
12. The problem of “circumventing the law” in private law
By circumventing the law in private lawintentional and artificial creation by a person of a conflict of laws link between a civil legal relationship and any foreign, national legal system with the formation of a conflict between this system and the required national legal system in order to ensure the application of the first to the legal relationship and avoid the application of the second.
The essence of circumventing the law in private law is as follows:the subjects of the relationship prepared in advance for the fact that a court or other law enforcement officer might have to apply a conflict of laws rule to regulate their relationship, and took care of creating a convenient link.
Moreover, it is necessary to be aware that the parties do not seek to circumvent the conflict of laws rule, but, on the contrary, want its application. Creating a conflict of law factual composition is a means of circumventing the law, but this is not the circumvention itself.
Three ways to solve the problem of circumventing the law:
I. Invalidation of legal facts that could lead to circumvention mandatory norms substantive law, which should be applied according to the conflict of laws principle.
II. Qualification of circumvention of the law in relations complicated by a foreign element, as special case abuse of private rights.
III. The use of mechanisms such as super-mandatory norms and public order clauses that can eliminate the negative effect of unfair actions of parties to circumvent the law.
13. Super-imperative norms in international private law
Super imperative normsrules that apply regardless of what the conflict of laws rule says.
2 signs:
Indication in the law (this is directly stated in the law)
The reference to another norm suggests that super-imperativeness can arise from the essence of the norm, its significance, in order to protect the rights of citizens, and protect the weak.
Rules classified as super-imperative are subject to application to legal relations, regardless of what law is intended to regulate the relations of the parties. Neither the agreement of the parties on the choice of law, nor the conflict of laws rules of the country of the forum can eliminate their application. The rule on such super-mandatory rules is contained in the Swiss Private International Law Act 1987, in the laws of other countries, as well as in the 1980 Rome Convention on the Law Applicable to Contractual Obligations.
14. Reversion and reference to the law of a third state
One of the most difficult issues in the application of conflict of laws rules is the issue of return. The problem arises in cases where domestic law refers to foreign law, and from the conflict of laws rules of the latter it follows that it is necessary to turn again to domestic law or to the law of a third country
An argument is put forward against recognizing the reference that the conflict of laws rule of the forum country has already solved the problem of choice of law. Therefore, a reference to the law of another country should be understood as a reference exclusively to the substantive rules of another country, and not to its conflict of laws rules.
In the civil legislation of the Russian Federation, the issue of return was first resolved in the Civil Code of the Russian Federation:
Any reference to foreign law should be considered as a reference to the substantive, and not to the conflict of laws of the relevant country, with the exception of determining the legal status of an individual.
Hence, general rule The non-application of reversion and reference to the law of a third country is established not only in relation to contracts. According to this rule, any reference to foreign law must be understood as a reference to substantive law, and not to the conflict of laws of the relevant country. Although the conflict of laws rules included in the Civil Code of the Russian Federation provide for a reference not to a specific, isolated regulation of foreign law, but to the foreign legal system as a whole, this system does not include the conflict of laws rules of the corresponding country. Only substantive law, substantive legal norms of the relevant country are subject to application.
15. Reciprocity and retorsion in private law.
Reciprocity. Foreign law is applied in the Russian Federation regardless of whether Russian law is applied to relations of this kind in the corresponding foreign state, excluding cases where the application of foreign law on the basis of reciprocity is provided for by law. If the application of foreign law depends on reciprocity, it is considered that it exists, unless otherwise proven. The emergence of the institution of reciprocity is associated with the understanding that for the development of ties between states, legal certainty and equality in regulation are necessary. States, in the process of developing economic, political and other ties, have a need for mutual recognition of legal systems. Currently, the principle of reciprocity implies the application of foreign law even without reciprocal application.
In PIL theory, there are several types of reciprocity.
Based on the scope of rights granted to foreign citizens, the following are distinguished:
material and formal reciprocity.
Typically, in one legal system it is impossible to construct the application of the principle of reciprocity only in the formal or only in the material aspect.
Retorsion are both defense mechanism and a mechanism for fighting other states with their own weapons. The Government of the Russian Federation may establish reciprocal restrictions in relation to property and personal non-property rights of citizens and legal entities of those states that have special restrictions on property and personal non-property rights Russian citizens and legal entities.
16. Establishing the content of foreign law.
Foreign law is applied to the extent that it is applied in its “home” state by its “home” court. The legislation of most states enshrines a special mechanism for establishing the content of foreign law, for example:
1) the burden of establishing the content of foreign law rests with the court. The court (ex officio) must request information about the content of foreign law, but may use information provided by the parties. The obligation to establish the content of foreign law cannot be assigned to the parties (Hungary, Germany, Italy, Mexico, Ukraine);
3) when considering disputes arising from certain types of activities or on certain claims, the burden of establishing the content of foreign law may be placed on the parties (Russia, Switzerland);
4) the burden of establishing the content of foreign law in all cases rests with the parties (Great Britain).
17. Personal law of physics. face and its variants. Scope given. law.
PERSONAL LAW OF INDIVIDUALS - in private international law the most common type of conflict of laws. Includes two options: a) national law or the law of citizenship; b) the law of the place of residence. The first means the application of the law of the state of which the person is a citizen; the second is the application of the law of the state in whose territory the person resides.
Personal law is the law of individuals, and therefore it is used primarily to determine the legal status of individuals: civil and legal capacity, personal rights (rights to name, place of residence, honor, etc.).
For example, in the Russian Federation: according to the Civil Code of the Russian Federation, the personal law of an individual is considered to be the law of the country whose citizenship this person has. If a person has foreign citizenship along with Russian citizenship, his personal law is Russian law. If a foreign citizen has a place of residence in the Russian Federation, his personal law is the law of the Russian Federation. If a person has several foreign nationalities his personal law is considered to be the law of the country in which he has his place of residence. The personal law of a refugee is considered to be the law of the country that granted him asylum. The personal law of a stateless person is the law of the country in which this person has his place of residence.
18. Conflict of laws issues of legal capacity of individuals. l. Restriction of legal capacity and recognition of a foreigner as incompetent. Confession unknown missing. and announced those who died in an emergency situation.
The legal capacity of an individual is his ability to exercise civil rights and obligations through his actions. An individual becomes fully capable upon reaching the age established by law (everywhere).
The main aspects of the legal status of an individual related to the category of civil capacity:
A person's right to a name,
Institutes of guardianship and trusteeship,
Recognition of an individual as missing and declaring him dead.
It is a generally accepted position that issues of civil capacity of individuals are subject to conflict of laws regulation.
In Russian law, the civil capacity of individuals is determined by their personal law.
The legislation of the Russian Federation states: an individual does not have the right to refer to his lack of legal capacity under his personal law if he is legally capable under the law of the state where the transaction was concluded (exception: it is proven that the other party knew or should have known about the lack of legal capacity). The norm is related to the general principle of private law: a person who is competent according to his personal law is always recognized as having legal capacity abroad; a person incapacitated by his personal law may be recognized as competent abroad.
Restriction of legal capacity is carried out in court. Individual M.B. recognized as completely incompetent, partially capable only in his homeland. Happens, similar solution made by a court of another state in relation to a foreign citizen - the problem of recognizing a foreign court decision in the foreigner’s homeland arises.
Foreigners in the Russian Federation may be limited in legal capacity, subject to notification of the competent authorities of the state of citizenship of such a person about the grounds for limiting legal capacity and the consent of the state of citizenship to trial in the Russian Federation. Foreigners with permanent residence in the Russian Federation may be limited in their legal capacity in the courts of the Russian Federation for general principles in accordance with the law of the Russian Federation.
Basically, issues of limiting the legal capacity of foreign citizens in the courts of another state are resolved in international treaties (Bustamante Code, etc.). Almost all international agreements contain an additional conflict of laws clause: “law of the competent institution.”
In international law, there are both multilateral and bilateral agreements governing the issue of missing persons and declaring missing persons dead. In multilateral and bilateral agreements on legal assistance, conflict of laws problems of unknown absence are resolved on the basis of personal law or court law. The courts of the state of citizenship of the person against whom the case of unknown absence has been initiated are competent. In certain cases expressly provided for in the contract, the competent court is the court of the other contracting party, and the applicable law is the law of the court.
19. Conflicting issues of guardianship and trusteeship.
Guardianship is established over minors and incapacitated citizens, and trusteeship over minors and citizens with limited legal capacity. Guardianship can be established in relation to persons who cannot independently exercise their legal capacity due to physical disabilities, as well as in relation to spendthrifts. Guardianship is often established to protect the interests of adults with limited legal capacity. The legislation of most states contains similar regulations on this issue. The appointment of a conservator is similar to the appointment of a guardian. Very often, individual relationships arising from this guardianship (trusteeship) are regulated by different legislation. The conflict of laws regulation of guardianship and trusteeship in the Russian Federation is provided for in the Civil Code of the Russian Federation. The establishment and cancellation of guardianship and trusteeship are carried out in accordance with the personal law of the ward or ward. The personal law of the guardian (trustee) is applied to establish his obligation to accept guardianship (trusteeship). The law of the competent institution determines the relationship between the guardian (trustee) and the ward (ward). The application of Russian law is legally established if it is most favorable for the person under guardianship (ward) who has a place of residence in the Russian Federation. The Civil Code of the Russian Federation contains a “chain” of conflict of laws rules: individual aspects of the same legal relationship are regulated through various conflict of laws links.
The Hague Conv on the settlement of guardianship of non-year-olds
The Hague Conv on ensuring the legal capacity of citizens and their care,
Conv on the competent authorities and the law applicable in cases of protection of non-children.
20. Legal status of foreign citizens and stateless persons in the Russian Federation. Labor rights of foreigners.
Federal Law “On the legal status of foreign citizens in the Russian Federation”
foreign citizen- an individual who is not a citizen Russian Federation and having evidence of citizenship of a foreign state.
a stateless person- an individual who is nota citizen of the Russian Federation and does not have evidence of citizenship of a foreign state.
Legislation on the legal status of foreign citizens in the Russian FederationIt is based on Constitution R F and consists of the Federal Law “On the Legal Status of Foreign Citizens in the Russian Federation” and other Federal Laws. Also, the legal status of foreign citizens in the Russian Federation is determined by international treaties of the Russian Federation.
Restrictions on the rights of foreigners: foreigners cannot enroll in state studies. service (including internal affairs bodies, state security), cannot be judges, prosecutors, investigators, public notaries, private notaries, lawyers, commanders of aircraft and sea vessels (regardless of whether it is a private vessel or not) , a foreigner cannot own border plots or agricultural lands (they can rent agricultural plots).
Certain rights are granted on the basis of reciprocity with other states. Certain rights are granted to foreigners subject to certain conditions that do not exist for Russian citizens.
Fundamentals of the legal status of foreigners in the Russian Federation:foreigners enjoy rights in the Russian Federation and bear responsibilities on an equal basis with citizens of the Russian Federation(exception - cases provided for by the Federal Law “On the Legal Status of Foreign Citizens in the Russian Federation”).
Foreigners can study labor activity only in an authorized manner. The decision is twofold: it is received by the foreigner and the organization that employs him. The permit is paid and is issued to all foreigners (with the exception of those temporarily or permanently residing in the territory of the Russian Federation).
Foreigners enjoy the rights and bear responsibilities in labor relations on an equal basis with citizens of the Russian Federation (the principle of national treatment is applied). The Russian Federation does not recognize restrictions on labor activity established by the national legislation of the foreign country. Foreigners permanently residing in the Russian Federation can engage in labor activities on the basis and in the manner established for citizens of the Russian Federation (except that only citizens of the Russian Federation can engage in certain professions).
Foreigners temporarily staying in the Russian Federation can engage in labor activities in the Russian Federation if this is compatible with the purposes of their stay (the employer is required to obtain permission from the Federal Migration Service, and the foreigner is required to obtain confirmation of the right to work in the Russian Federation).
Characteristic feature employment contracts with any foreigners temporarily staying in the Russian Federation is their urgent nature. In these cases, the labor legislation of the Russian Federation is usually applied in combination with the legislation of the foreigner’s country.
21. Personal law of a legal entity. The scope of the personal law of a legal entity.
PERSONAL LAW OF A LEGAL ENTITY- a term of private international law meaning certain legal norms regulating the procedure for the creation, activities and liquidation of a foreign legal entity. Personal law ju.l. also determines whether this education(association) is generally a legal entity. The need to determine personal law also arises in the case of resolving conflict issues, when the court is obliged to “bind”entityto the legal system of a state.
The main link that determines the status of a legal entitypersonal law of legal entities. The personal law of a legal entity is the law of the country where the legal entity is established. But not in all countries organizations go through a registration procedure, but there is a notification procedure.
Doctrine of incorporation(inclusion of a specific organization in the register of organizations). Sometimes this law turns out to be accidental, because the location of the organization is not always the main feature (registered in one place, operates in another).
Ashore organizationsorganizations registered in an offshore zone and operating outside this zone (no taxes, customs duties, no exchange controls, states do not always use this link)
Doctrine of Settlementthe personal law of the organization is determined based on the law of the country from which the organization is managed (Germany)
Place of business(where it operates, we look for the law, but there are organizations that operate in many places and it is difficult to determine their personal law)
Doctrine of control or capital control(in fact, management is carried out from another country, but this link is difficult to accept, since shareholders with predominant influence often change, it is used in special cases martial law)
In the Russian Federation differently (the principle of settlement with Germany, but the law of the place of establishment dominates)
22 The state as a participant in civil legal relations in international private law. State immunity and its types.
States participate in private law activities of an international nature and act as subjects of international private law. At the same time, the state, concluding various transactions on the territory of a foreign state, enjoys a special legal regime, according to which the state, its property, and transactions with its participation are not subject to the authority of the foreign state. That. The peculiarity of the legal regime of the state as a participant in international private law activities lies in its immunity from foreign jurisdiction.
The right of a state is its law. But you cannot abuse your right with impunity, because... Other states are monitoring this.
State immunitythis is the right of a state to be exempt from the jurisdiction of another state.
Types of state immunity:
Material,
Procedural: judicial, immunity from enforcement of a claim, immunity from enforcement of a decision
Previously there was absolute immunity, but now functional immunity has formed.
23 Conflict of laws issues of property law.
Property law this is the law of the country that will determine the content, implementation and protection real rights. These are questions related to the mode of things.
The binding works herelaw of location of a thing. This is the main binding, because the thing is the center of the relationship. This is especially true for real estate. This link also applies to movable property, but not always the thing, due to the nature of its activity, does not have its permanent location (vehicle). The fiction that applies here is at the location of the right of ownership and other proprietary rights to the vehicle. This binding does not apply to all vehicles (aircraft, sea vessels, inland navigation vessels, space objects)
Thing on the way (excl.) Germans and Hungarians determine the right by the destination, because the thing must be there, enter into civil circulation there.
There are bindings : stable, mobile
Location of the item mobile link
The Civil Code of the Russian Federation states that the law of the location of a thing is applied when the thing was seized, its location, etc.
The law of the location of a thing for questions of the location of a thing is determined by this place a special case of stable binding.
Acquisitive prescription (some things are subject to acquisitive prescription and the law of the country where the period for acquiring the thing expires is applied).
The statute in rem is inferior to other statutes.
24. Conflict of laws issues regarding the form of transactions.
Issues of transaction capacity private version of legal capacity. Sometimes personal law is applied, more often the law of the place where the transaction was made. This is an example of a conflict of qualifications, i.e. what is considered the place of the transaction.
There are countries where the place of conclusion of the transaction is the place of direction of acceptance (England)
In the countries of the Romano-Germanic legal system, it is considered that the place of concluding a transaction is the place where the acceptance was received, and according to the Civil Code of the Russian Federation - at the location of the person who sent the offer
2 cases known to the law of the Russian Federation, when the place of conclusion of the transaction does not matter:
If we're talking about on transactions regarding real estate (law of the location of the property)
If we are talking about a foreign economic transaction in which at least one person is Russian face, then this form of transaction is subject to the legislation of the Russian Federation.
25. Concept and scope of the treaty statute.
The statute of obligations is the law that applies to obligations arising from unilateral transactions and contracts.
The Civil Code of the Russian Federation contains a whole system of conflict of laws rules, with the help of which it is possible to determine the law applicable to obligations.
The Civil Code of the Russian Federation has conflict of laws rules, which cover all types of contracts, which means they establish a statute of obligations, i.e. applicable law for all contracts. The binding statute for any contract is the law of the state, chosen by the parties.
The law applicable to contracts decides next questions:
Interpretation of the contract
Rights and obligations of the parties to the contract
Execution of the contract
Consequences of non-fulfillment or improper execution of the contract
Termination of the contract
Consequences of invalidity of the contract.
26. Agreement on choice of law: form and content.
The parties to an agreement may choose, by agreement, the law that applies to their rights and obligations under this agreement. The preferred law applies to the emergence and termination of ownership and other real rights to movable property, taking into account the absence of damage to the rights of third parties. The agreement of the parties must be expressly expressed or must follow from the terms of the contract or the totality of the circumstances of the case. The choice by the parties of the law to be applied, made after the conclusion of the contract, has retroactive effect and is considered valid (taking into account the absence of damage to the rights of third parties) from the moment the contract is concluded. The parties to the contract can choose the law to be applied both for the contract as a whole and for its individual parts. If the totality of the circumstances of the case indicates that the contract is connected with only one country, then the choice by the parties of the law of another country cannot affect the effect of mandatory rules of the country with which the contract is actually connected.
27. The principle of “close connection” when determining the law applicable to a contract. Seller's law and other bindings.
The law with which this legal relationship is most closely connected the law of the closest connection. If it is not possible to determine the law to be applied to contractual obligations, the law of the country with which the contract is most closely related shall apply. The law of closest connection does not apply to all contracts. There are two such agreements in the Civil Code: an agreement with the participation of a consumer and an agreement on the creation of a legal entity. persons with foreign participation. The law does not apply to obligations arising from unilateral transactions. Because The peculiarity of such obligations is that they arise from the actions of one person, then such an obligation must be subject to the law of this person.
Law of the seller's country. Thisthe principle is enshrined, for example, in the Hague Convention on the Law Applicable to Contracts international sales. It states that if the parties to an international sales contract have not chosen the applicable law, the transaction is governed by the law of the state in which the seller had his place of business at the time the contract was concluded. As can be seen in the published example, the link is used to select the applicable law that determines the rights and obligations of the parties in foreign trade transactions.
Law of the place of conclusion of the contract(the link is applied when the parties sign the agreement)
28. Law applicable to assignment of claim and payment of interest
The law to be applied to the agreement between the original and new creditors on the assignment of claims is determined in accordance with the Civil Code of the Russian Federation. In the absence of an agreement between the parties on the applicable law, the law of the country with which the contract is most closely related is applied to the contract. The law of the country with which the contract is most closely related is considered, unless otherwise follows from the law, the terms or essence of the contract or the totality of the circumstances of the case, the law of the country where the place of residence or the main place of activity of the party that carries out the performance that is decisive for the content is located. agreement. The admissibility of the assignment of a claim, the relationship between the new creditor and the debtor, the conditions under which this claim can be presented to the debtor by the new creditor, as well as the issue of proper performance of the obligation by the debtor is determined by the law that is subject to application to the claim that is the subject of the assignment.The grounds for collection, the procedure for calculating and the amount of interest on monetary obligations are determined by the law of the country that is subject to application to the corresponding obligation
29. Conflict of laws regulation of relations with the participation of consumers in private private partnership. Liability for damage caused due to defects in goods, work or services
One normative act, in which conflict of laws rules would be concentrated, there is no such law in the Russian Federation. At the same time, in Russia the so-called “industry codification” of conflict of laws has been carried out.
To a claim for compensation for damage caused as a result of defects in a product, work or service, the following applies, at the choice of the victim: 1) the law of the country where the seller or manufacturer of the product or other tortfeasor has his place of residence or main place of business; 2) the law of the country where the work was performed, the service was provided, or the law of the country where the goods were purchased; 3) the law of the country where the victim has his place of residence or main place of business. The choice by the victim of the right provided for in 2) and 3) can be recognized only if the tortfeasor does not prove that the goods entered the relevant country without his consent.
If the victim himself did not make a choice, the law to be applied is determined in accordance with the Civil Code of the Russian Federation, i.e. the law of the country where the action or other circumstance that served as the basis for the claim for compensation for harm took place is applied to obligations arising from causing harm.
30. Scope and general provisions of the UN Convention on Contracts for the International Sale of Goods 1980
The UN CONVENTION 1980 (Vienna) provides for the substantive regulation of a sales contract involving a foreign element. The Convention is dispositive in nature, i.e. Parties have the right to exclude the application of the Convention or part thereof to their contract.
Scope of application: to contracts for the sale and purchase of goods between parties whose business establishments are located in different states:
1) when these States are Contracting States;
2) when, according to the rules of international private law, the law of the Contracting State is applicable.
This Convention is entrepreneurial, i.e. applies to relationships between entrepreneurs
The Convention governs only the conclusion of a sales contract and those rights and obligations of the seller and buyer that arise from such a contract. Issues related to the subject matter of the Convention, which are not expressly resolved therein, are subject to resolution in accordance with the general principles on which it is based, and in the absence of such principles, in accordance with the law applicable by virtue of the rules of private international law.
If a party has more than 1 place of business located in another country, then the Convention will apply to the contract of sale if it is most closely related to the place of business located in another country. If a party does not have a place of business, its domicile is taken into account.
A contract of sale is not required to be entered into or evidenced in writing or be subject to any other form requirement. It can be proven by any means, including testimony.
The interpretation of the Convention is carried out taking into account its international character. It is based on the principle of promoting international relations.
31. The procedure for concluding and maintaining an agreement for the international sale of goods under the Vienna Convention of 1980
The agreement may be concluded:
By signing
Exchange of letters
The Convention regulates issues related to the transmission of letters (offer, acceptance)
Offer an offer to enter into a contract if it is sufficiently specific and expresses the intention of the offeror to bind himself to its terms in the event of acceptance.
Sufficient certaintythat offer that identifies the product, in which the price, quantity of the product is directly (indirectly) established or the procedure for their determination is provided.
An offer comes into force when it is received by the offeree. The offer is revocable (can be withdrawn before the conclusion of the contract). Cannot be revoked: if there is a time limit for responding to it or it is otherwise indicated that it is irrevocable; if it is reasonable for the offeree to treat the offer as irrevocable.
Acceptance a statement or other behavior of the addressee expressing agreement with the offer. Acceptance takes effect when the corresponding message is received by the offeror. If the acceptance is not received by the offeror, within the specified period or within a reasonable time (when the period is not specified) the acceptance has no force.
An oral offer must be immediately accepted. If the acceptance contains other conditions, it is a counter-offer.
Essential terms of the agreement: about payment, price, quality and quantity of goods, about the place and timing of delivery, about the responsibility of one of the parties to the other, about the procedure for resolving disputes.
The contract is considered concludedfrom the moment of acceptance by the offeror at the address of the commercial enterprise or at his place of residence.
32. Limitation issues in private law
The limitation period is expressed in the establishment of time limits for the protection of a violated right in court. The Convention on Limitations in Global Sales was signed in New York.
The main points relate to the fact that the statute of limitations is 4 years. The moment from which the limitation period begins to be calculated differs from that established in the Russian Federation (learned or should have known subjective criterion), in the Convention when the violation took place (objective criterion). The deadline may be interrupted (as in the Russian Federation). The limitation period cannot exceed 10 years, otherwise there will be consequences. This Convention does not apply in the Russian Federation. Except: when choosing the law, it is established that the state with which the Russian Federation entered into an agreement has signed this Convention.
In Russia, the general rule on this issue is contained in the Civil Code of the Russian Federation: “The limitation period is determined by the law of the country that is subject to application to the relevant relationship.”
Different countries have different statutes of limitations and apply different approaches to resolve the issue of interruption and suspension of the limitation period.
33. INCOTERMS 2000: terms of group E and F
INCOTERMS is one of the most important international documents of unofficial codification; it refers to certain types of international sales contracts based on a certain, fixed distribution of rights and obligations between trading partners.
E terms:
EXW “Delivery from the factory.” The supplier is considered to have fulfilled his obligation at the moment of transfer of the goods to the buyer at his enterprise. From this moment on, all risks pass to the buyer.
F terms:
FCA free carrier. The seller is considered to have fulfilled the obligation and all risks pass at the moment the goods are delivered to the first carrier.
F.A.S. - Free along the side of the vessel the seller is considered to have fulfilled his obligations, all risks pass at the moment the goods are placed along the side of the vessel.
FOB - Free on board. The seller fulfills his obligations and all risks pass when the goods pass the ship's rail.
34. INCOTERMS 2000: terms of group C and D
INCOTERMS - an international document of unofficial codification, it refers to certain types of international sales contracts based on a fixed distribution of rights and obligations between trading partners.
1) Terms C:
CFR- cost and freight. The seller is obliged to ensure delivery of the goods by concluding a contract of carriage and paying freight. All risks pass to the buyer at the moment the goods pass the ship's rail.
CIF- Cost, insurance, freight. All risks pass to the buyer at the moment the goods pass the ship's rail. The supplier pays freight and provides minimum coverage insurance for the goods.
CPT Freight/carriage paid up to. Transportation is paid to a specific destination. The supplier is obliged to ensure delivery of the goods by paying a transportation fee. The risk passes from the seller to the buyer at the moment the goods are handed over to the first carrier.
C.I.P. Freight, carriage and insurance paid up to. Freight and insurance are paid up to the specified destination. Risks pass at the moment the goods are handed over to the first carrier; the seller is responsible for transportation and insurance with minimal coverage.
2) Terms D:
DAF “Delivered to the border.” The seller is obliged to hand over the unloaded goods to the buyer at the agreed border point. At the same moment the risks pass. The border can be any border, including the border of the country of export.
DES “Delivered from ship.” The seller is considered to have fulfilled his obligations at the moment the goods are transferred to the buyer’s disposal on an unloaded ship that arrives at the port.
DEQ “Delivered from the pier.” The seller is considered to have fulfilled his obligations at the moment of unloading the arrived goods at the pier.
DDU “Delivery without payment of duty.” The seller transfers the goods to the buyer as agreed, bearing all costs of the goods with the exception of import duties.
DDP The seller fully ensures delivery of the goods (delivery with payment of duties) including customs clearance for import.
35. International transport. Transport conventions.
International transport- transportation of goods between two or more states, carried out under the conditions established by international agreements concluded by these states.
Customs Convention on the International Transport of Goods Using a TIR Carnetis actively used, simplifying the existing procedure for international transportation of goods. The relevance is also due to the fact that the Convention contains a set of protective measures to protect the legitimate interests of customs authorities. The success of the TIR transit system is explained by a number of features of the TIR regime, which provides carriers and customs authorities with a simple, flexible, economical and secure customs transit procedure for the international transport of goods.Basic principles of the convention:1) goods must be transported in safe vehicles or containers; 2) payment of customs duties and taxes in respect of which there is a risk of non-payment must be secured by an international guarantee; 3) goods must be accompanied by a customs document recognized by all parties to the Convention (TIR Carnet), accepted for registration in the state of departure and serving as a control document in the states of departure, transit and destination; 4) customs control measures taken in the state of departure must be recognized by all countries of transit and destination; 5) access to the TIR procedure for national associations and individuals and legal entities must be controlled by authorized national authorities.
Convention on International Civil Aviation, Convention on Road Traffic, UN Convention on the Carriage of Goods by Sea, etc.
36. Settlement relations in private private partnership
Settlement relationshipsthese are relationships that arise in the process of execution monetary obligations through non-cash payments.
Settlement relationships are divided into:
International interbank relations
Bank relations with foreign clients
General principles of international settlement relations are established in 2-party trade, economic and payment agreements
2 approaches to organizing the settlement process:
In freely convertible currency
According to the clearing system, in which counter monetary claims and obligations are offset through non-cash transactions to clearing accounts.
Legal regulation:
MP (conventions): e.g. Geneva Convention Concerning a Uniform Law on Checks
Business customs: e.g., Uniform Collection Rules
Payments are distinguished by terms:
Immediate payment (within 3-5 days after shipment)
With installments
Non-cash payments are carried out in the form:
Documentary letter of credit
Documentary collection
Money orders
By checks.
37. Conflict of laws issues of bill and check circulation
LEGAL BASIS:Geneva Exchange Convention, which approved the Uniform Bill of Exchange Law.
BILL - an unconditional written order addressed to one person and another, signed by the person issuing it and requiring the person to whom it is issued to pay on demand, at a specified time in the future, a certain amount to the person presenting it.
UN Convention on International Bills of Exchange and International Promissory Notes (Russia has signed). Under the Convention there is a promissory note and a bill of exchange.
In the Russian Federation there is a Federal Law “On promissory notes and bills of exchange”
The Unified Bill of Exchange Law contains a number of international legal conflict of laws rules:
The ability of a person to be obligated on a promissory note or a bill of exchange is determined by his national law
The form in which obligations under a bill of exchange are accepted is determined by the law of the country in which they were signed.
The obligations of the person who signed the bill are subject to the law of the place of payment for this bill
The deadlines for filing a claim by way of recourse are determined for all persons who signed their signatures, the law of the place where the document was drawn up
The list does not end there: the Law of the country in which payment on the bill of exchange must be made, the Law of the country in whose territory the protest or corresponding action must be taken
Check - an unconditional order, an order from the drawer to the drawer's bank or other credit institution to pay the holder of the check a specified amount of money within a specified period. All details must be observed.
International legal conflict of laws rules in the field of check circulation:
- a person's ability to be bound by a check is determined by his national law
The form in which obligations under a check are accepted is determined by the law of the country in which they were signed.
The time limits for filing a claim by way of recourse are determined for all signatories by the law of the place where the document was drawn up
The procedure for filing a protest is determined by the law of the country where it will be filed.
38. Conflict of laws issues of tort obligations in international private law. Unjust enrichment in private law.
Issues of tortious obligations are regulated by international treaties:
Minsk Convention
Kyiv Convention
The law of the state in whose territory the offense was committed applies.
There are a number of agreements with Cuba, Egypt, Poland, India, according to which:
The resolution of conflicts is subject to the law of the state of which the parties are citizens.
Claims for damages for tort liability may be brought in the court of the country where the act or circumstance occurred.
According to the Civil Code of the Russian Federation:
The law of the country where the action or other circumstance that gave rise to the claim for damages took place is applied.
If the damage occurred in another country the law of that country
If the damage was caused abroad, and if the parties are citizens or legal entities of the same country, the law of that country applies
After the commission of an action or the occurrence of another circumstance that caused harm, the parties may agree on the application of the law of the country of the forum to the obligation.
Unjust enrichmentThe Civil Code of the Russian Federation refers to the law of the country where the enrichment occurred
Special conflict of laws rules apply:
Due to the execution performed under the law of the country to which the execution is associated
As a result of encroachments on protected interests by the law of the state in which the encroachment was committed
In other cases, general reference to the law of the country in which the unjust enrichment occurred.
The objects of protection are (Universal Copyright Convention):
International treaties in the field of copyright determine the range of works enjoying conventional protection based on 2 criteria:
Territorial criterion.
The general provisions of conventional protection include:
- national treatment principle
Providing security regardless of formalities
Urgent nature of protection
Reference to the law of the country where protection is sought as the main principle of conflict of laws
International Convention for the Protection of the Interests of Performing Artists, Producers of Phonograms and Broadcasting Organizations
Convention establishing the World Intellectual Property Organization, etc.
40. International agreements in the field of protection industrial property
Basic international treatyParis Convention for the Protection of Industrial Property
Objects of protection:
Patents for inventions
Utility models
Industrial designs
Trademarks
Service marks
Brand names, etc.
Industrial property law is divided into:
Legal protection of inventions, utility models, industrial designs
Legal protection of means of individualization of participants in civil transactions and the products, works and services they produce.
Objects of industrial property are protectedonly within the territory of the state in which protection arose in accordance with the procedure established by law.
The Paris Convention explicitly establishes the principle of independence of registration and protection of documents.
The Convention containsa number of rules that are fundamental for the international protection of any industrial property:
Citizens and legal entities of the countries of the Union use on the territory of any member state national treatment plus rights specifically provided for by the convention
The Convention contains important rules on priority
Dates:
For patents and utility models 12 imes
For industrial designs and trademarks 6 months
The Convention does not create a single patent for state parties and does not unify the procedure for obtaining patents.
41. Conflict of laws issues of inheritance law
Inheritance relationships are determined by:
According to the law of the country where the testator had his place of residence
Inheritance of real estate is determined by the law of the country where this property is located, and inheritance of property that is included in the state register in the Russian Federation is determined by Russian law
The ability of a person to draw up and revoke a will, as well as the form of such a will or the act of revoking it, are determined by the law of the country where the testator had his place of residence at the time of drawing up the will or act. A will or its revocation may not be possible. declared invalid due to non-compliance with the form, if it meets the requirements of the law of the place where the will was drawn up or the act of its revocation.
This is a complex multiple conflict of laws rule(there are many bindings, but no choice)
Nr, what should be the form of a testamentary disposition acute conflict of laws issue oral, written, notarial, etc.? There are 3 bindings here. It is important where the citizen lived and what laws he followed when drawing up his will.
1st link law of permanent residence at the time of drawing up the will
2nd link law of the country where the will was drawn up
3rd link the law of the state where the issue is resolved is applied
The meaning of the number of bindingseverything is done to fulfill the will of the deceased
42. Conclusion and dissolution of marriage in private private partnership
When concluding a marriage both on the territory of the Russian Federation and abroad, there are 2 options for the presence of a foreign element.In the Russian Federation, marriage may be concluded:
M/s by citizens of foreign states
M/s by persons, one of whom has Russian citizenship, and the other has citizenship of a foreign state
A similar situation on the territory of a foreign state
Conditions for marriageare determined for each person entering into marriage by the legislation of the state of which the person is a citizen.
Barriers to marriage:
Marriage between persons, at least one of whom is already married
M/s by adoptive parents and adopted children
M/s with close relatives
M/s by persons, of whom one is recognized as mentally incompetent
If a person has 2 citizenships, one of which is Russian, Russian law is applied, if there are several foreign citizenships, one of the foreign rights of the person’s choice, if there is no citizenship, the laws of the state where the person permanently resides
To recognize marriages concluded by foreigners, it is sufficient to comply with the legislation of the state in whose territory they were concluded.
Divorce of a marriage between citizens of the Russian Federation and foreign citizens or stateless persons, as well as a marriage between foreign citizens on the territory of the Russian Federation is carried out in accordance with the legislation of the Russian Federation. Divorce by previously specified persons, completed outside the Russian Federation, in compliance with the law, is recognized as valid in the Russian Federation. A citizen of the Russian Federation living outside the territory of the Russian Federation has the right to divorce a spouse living outside the Russian Federation, regardless of his citizenship, in a court of the Russian Federation. Divorce of marriage by foreign citizens, completed outside the Russian Federation in compliance with the legislation of the relevant foreign state, is recognized as valid in the Russian Federation.
Divorce may be subject to either the law of the country of citizenship or the law of the place of residence of the spouses or one of them.
43. Legal relations between spouses
Personal non-property and property rights and obligations of spouses are determined:
The legislation of the state in whose territory they have a joint place of residence (1st link)
The legislation of the state in whose territory they had their last joint place of residence (2nd link)
Legislation of the Russian Federation (3rd link)
That. The main principle for regulating relations between spouses is the territorial principle.
The possibility of using autonomous will is limited to 2 situations:
Concluding a marriage contract,
Drawing up an agreement on the payment of alimony
Choice of law in these circumstances, it is additionally subject to the following requirements: spouses must not have common citizenship or a common place of residence.
In other cases, the establishedlegislator of conflict of laws.Regarding the formagreement on the choice of law, then this issue is resolved on the basis of the conflict of laws rule on the form of the transaction, i.e. according to the law of the place of the transaction.
44. Legal relations between parents and children in private law. Adoption in MChP
The rights and responsibilities of parents and children are determined(1st binding)
In the absence of a joint place of residencelegislation of the state of which the child is a citizen(2nd binding)
At the request of the plaintiff for alimony obligations and other relations between parents and children, m.b. appliedlegislation of the state in whose territory the child permanently resides(3rd binding).
The alimony obligations of adult children in favor of their parents, as well as the alimony obligations of other family members, are determinedlegislation of the state in whose territory they have a joint place of residence(1st binding). If there is no joint residencelegislation of the state of which the person applying for alimony is a citizen(2nd binding).
Adoption, cancellation of adoption on the territory of the Russian Federation by foreign citizens or stateless persons of a child (citizen of the Russian Federation), is carried out in accordance with the legislation of the state of which the adoptive parent is a citizen (adoption of a child by a stateless person legislation of the state in which it is the person has a permanent place of residence) at the time of filing the application for adoption or its cancellation.
When adopting a child in the Russian Federation, you must:
- consent of the legal representative of the child and the competent authority of the state
- the child's consent to adoption (if specifically required)
45. The position of foreign persons in civil proceedings. Procedural capacity of foreigners.
Criteria by which the position of foreign persons in civil proceedings can be characterized:
Equating foreigners with citizens of the Russian Federation, with regard to free access to court and the provision of procedural rights
Foreign persons are provided with the same procedural rights as citizens of the Russian Federation and organizations of the Russian Federation:
1) on a general basis, act in the process as a party or third party
2) present documents issued abroad by a foreign state
3) conduct business personally or through a representative
Retortions may be established that do not entail the granting of rights subject to reciprocity.
Legal capacity for courts of general jurisdiction, the personal law of the foreigner is decisive. If a person has multiple citizenships, then the law of the state in which the foreign person has his place of residence is applied.
The issue is resolved similarly for organizations.
The legal capacity of foreign organizations is determined in the Code of Civil Procedure of the Russian Federation on the basis of an international agreement, constituent documents or agreements with the competent authority of the Russian Federation.
46. International jurisdiction (IJ). Criteria for determining jurisdiction.
MP this is a division of competence national courts various states for resolving civil cases with international characteristics.
The issue of determining the scope and limits of the competence of courts and other justice bodies is decided by the state regardless of other states.
Legal systems provide3 main ways to determine MP: 1) based on the citizenship of the parties: the court of that state is competent to consider the dispute, the citizen of which is one of the parties (France, Italyand etc.); 2) according to the law of the defendant’s place of residence (Germany, Switzerland, Japan and etc.); 3) based on the “actual presence” of the defendant (England, USA, etc.).
47. Exclusive jurisdiction in international civil proceedings. Contractual jurisdiction.
Exclusive jurisdictionclear establishment by law of jurisdiction of Russian courts
The exclusive jurisdiction of courts in the Russian Federation includes:
Cases on the right to real estate located on the territory of the Russian Federation
Cases arising from public legal relations
Cases arising from contracts of carriage if carriers are located on the territory of the Russian Federation
Cases on divorce of citizens of the Russian Federation with foreign citizens or stateless persons, if both spouses have a place of residence in the Russian Federation
In some cases with a foreign element, the arbitration courts of the Russian Federation have exclusive competence:
Cases regarding real estate located on the territory of the Russian Federation
Cases on disputes regarding property owned by the state of the Russian Federation
Cases from public legal relations
Contractual jurisdictionchange of international jurisdiction by agreement of the parties to the case (prorogation agreement).Manifests itself in indicating that:
The dispute will be considered in a court of the Russian Federation (a specific court may be indicated)
The dispute will be referred to a foreign court, although it falls within the competence of the Russian court
This indication in the agreement is only possible if the exclusive jurisdiction does not change
Institute to avoid parallel trials. This procedural problem arising from the court.Several options to solve this problem:
A court that has established that a foreign court has already made a decision on the same case, subject to recognition and execution in the Russian Federation, must refuse to accept statement of claim to production or stop production
If a similar case is already pending in a foreign court, must proceed as in 1 case.
If proceedings in a foreign court are terminated for any reason, the plaintiff has the right to appeal to the court of the Russian Federation.
48. Providing legal assistance. Letters from court
Legal assistancecarrying out certain procedural actions provided for by the legislation of the requesting party.
These actions include:
Preparation, forwarding, delivery of documents
Obtaining material evidence,
Interrogation of witnesses, experts, etc.
Requests for legal assistanceare drawn up in the language of the requested party.Often the justice authorities, but most of legal assistance is provided by the courts in the form of letters rogatory.
Providing legal assistance and sending letters rogatory regulated: Minsk Convention, Kyiv Agreement, Civil Procedure Code of the Russian Federation, Hague Convention on the Collection of Evidence Abroad in Civil and Commercial Matters, etc.
There are several options:
- a foreign court appeals to a Russian court
A court order is not subject to execution if:
May damage the sovereignty of the Russian Federation and threaten the security of the Russian Federation
Not within the jurisdiction of the court
Contrary to public policy
A court order is executed:
In accordance with the legislation of the Russian Federation
The court in whose area the procedural actions must be performed
2) the Russian court appeals to a foreign court.
Court orders are sent via the Ministry of Foreign Affairs of the Russian Federation; this takes a long time, but a simplified procedure is possible:
- The diplomatic method involves the court applying to the Ministry of Foreign Affairs of the Russian Federation, and the Ministry of Foreign Affairs of the Russian Federation applying to the embassy or consulate of the Russian Federation in the corresponding country (6 months)
- The Minsk Convention simplifies the process: the court of the Russian Federation applies to the Ministry of Justice of the Russian Federation, and the Ministry of Justice of the Russian Federation to the Ministry of Justice or another institution of a foreign state, and the latter to a foreign court.
- The easiest way is that the Russian court directly appeals to the foreign court.
35. certification of foreign official documents. Consular Legalization and Apostille
For a foreign document to be valid on the territory of another state, it must be legalized
Legalization of documentsthis is a special procedure for translating and processing documents so that the documents have legal force abroad.The procedure is complex and time-consuming
Documents intended for use on the territory of another state are affixed with a special stamp (apostille) certification inscription. An apostille certifies the authenticity of a signature, the quality of the person who signed the document and the authenticity of the seal or stamp with which it is sealed. Legalization or apostille is not required if agreements between 2 or several states cancel or simplify this procedure
2 ways to legalize foreign official documents:
1) general method of legalization (consular legalization a document drawn up and issued by the authorities of one country is confirmed by the consular agent of another country)
2) The Hague Convention “On the Abolition of Official Certificates and the Legalization of Foreign Documents.” The essence legalization is carried out in a simplified manner. In order for the Russian Federation to legalize any document, the Russian Federation needs to affix a special stamp Apostille. The aposted document will be valid in all countries.
At the same time, you need to translate and legalize the document. One does not exclude or replace the other
50. Recognition and enforcement of foreign judgments
This is giving them the same legal force as the decisions of the courts of a given state that have entered into legal force.
Recognition of the decision necessary condition for its execution.
Countries with similar legal systems are expanding mutual recognition and enforcement of judicial acts by adopting relevant international treaties
For Russia the following applies:
Minsk Convention (recognition and enforcement of court decisions)
Kiev Agreement “On the Procedure for Resolving Business Disputes” (on disputes during business activities)
Hague Convention on Civil Procedure
Some court decisions do not require execution (status of foreign citizens, divorce)
Conditions that d.b. observed in the recognition and execution of court decisions:
The decision must enter into legal force
The procedural rights of all parties must be respected
Must not contradict a previous decision of the court of the Russian Federation on the same grounds, requirements and agreements by the same parties, which at the same time entered into legal force
Procedure for recognition and execution:
The court finds that the conditions provided for by the convention are met
The court makes a decision on enforcement
Several systems for executing such solutions:
Exequatur system
Anglo-American common law system
Solutions foreign ships, which by their nature do not require forced execution, are recognized without any special proceedings.
Claimants' petitions for recognition and permission to enforce foreign decisions of Russian courts are usually submitted to the court that made the relevant decision.
Directly passing an exam or test in any academic discipline is always preceded by a fairly short period when the student must concentrate and systematize his knowledge. To put it simply computer language, he must “bring information from long-term memory into operational memory”, making it ready for immediate and effective use. The specificity of the period of preparation for an exam or test is that the student no longer studies anything (there is simply no time for this): he only remembers and systematizes what he has learned.
The proposed manual will help students in solving this particular problem in relation to the course “Private International Law”.
The publication is intended for students law universities and faculties.
The place of private international law in the legal system.
PIL occupies a special place in the global legal system. Its main specificity is that private law is a branch of national law, one of the private law branches of the law of any state (Russian private law, French private law, etc.). It is included in the system of national private law along with civil, trade, commercial, family and labor. The concept of “international” here has a completely different character than in MPP; it means only one thing: in a civil legal relationship there is a foreign element (it does not matter at all whether it is one or more and which version of the foreign element). However, international private law is a very specific subsystem of the national law of individual states.
The special nature and paradoxical nature of its norms are expressed in the very term “domestic private law”. At first glance, this terminology seems absurd. 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 the rules of international private law is also expressed in the fact that one of its main sources is directly international private law, which plays an extremely important role in the formation of national private private law. It is customary to talk about the dual nature of the norms and sources of international private law. Indeed, this is perhaps the only branch of national law in which MPP acts as a direct source and has direct action. That is why the definition of “hybrid in jurisprudence” is quite applicable to private law.
Table of contents
ACCEPTED ABBREVIATIONS
A COMMON PART
Topic 1. CONCEPT AND SYSTEM OF INTERNATIONAL PRIVATE LAW
1.1. Concept and subject of private international law
1.2. The place of private international law in the legal system
1.3. The normative structure of private international law
1.4. Methods of regulation in private international law
Topic 2. SOURCES OF PRIVATE INTERNATIONAL LAW
2.1. Concept and specificity of sources of private international law
2.2. National law as a source of private international law
2.3. International law as a source of private international law
2.4. Judicial and arbitration practice as a source of private international law
2.5. Doctrine of law, analogy of law and law, general principles of the law of civilized peoples as a source of private international law
2.6. Autonomy of will of subjects of legal relations as a source of private international law
Topic 3. CONFLICTS OF LAW – CENTRAL PART AND SUBSYSTEM OF PRIVATE INTERNATIONAL LAW
3.1. Basic principles of conflict of laws
3.2. Conflict of laws rule, its structure and features
3.3. Types of conflict of laws rules
3.4. Basic types of collision bindings
3.5. Contemporary issues conflict of laws
3.6. Qualification of conflict of law rules, its interpretation and application
3.7. Limits of application and effect of conflict of laws rules
3.8. The theory of references in private international law
3.9. Establishing the content of foreign law
Topic 4. SUBJECTS OF PRIVATE INTERNATIONAL LAW
4.1. The position of individuals in international private law, the determination of their civil legal capacity
4.2. Civil capacity of individuals in private international law
4.3. Legal status of legal entities in private international law
4.4. Specifics of the legal status of transnational companies
4.5. Legal status of the state as a subject of private international law
4.6. International intergovernmental organizations as subjects of private international law
SPECIAL PART
Topic 5. PROPERTY RIGHT IN INTERNATIONAL PRIVATE LAW
5.1. Conflict of laws issues of property rights
5.2. Legal regulation of foreign investments
5.3. Legal status of foreign investments in free economic zones
Topic 6. LAW OF FOREIGN ECONOMIC TRANSACTIONS
6.1. General provisions
6.2. Conflict of laws issues of foreign economic transactions
6.3. Scope of the Statute of Obligations on Foreign Economic Transactions
6.4. Form and procedure for signing transactions
6.5. International legal unification of norms on foreign economic transactions
6.6. International trade custom
6.7. International Rules for the Uniform Interpretation of Trade Terms
6.8. The theory of lex mercatoria and non-state regulation of foreign economic transactions
Topic 7. LAW OF INTERNATIONAL TRANSPORTATION
7.1. General provisions of the law of international transport
7.2. International rail transport
7.3. International road transport
7.4. International air transport
7.5. International sea transport
7.6. Relationships related to the risk of navigation
Topic 8. PRIVATE INTERNATIONAL MONETARY LAW
8.1. Financing international business transactions
8.2. International payments, currency and credit relations
8.3. Forms of international payments
8.4. International payments using bills of exchange
8.5. International payments using a check
8.6. Legal specifics of monetary obligations
Topic 9. INTELLECTUAL PROPERTY IN PRIVATE INTERNATIONAL LAW
9.1. Concept and features of intellectual property
9.2. Specifics of copyright in private international law
9.3. International security copyright and related rights
9.4. Specifics of industrial property law in private international law
9.5. International and national regulation of invention law
Topic 10. MARITAL RELATIONS IN PRIVATE INTERNATIONAL LAW
10.1. The main problems of marriage and family relations with a foreign element
10.2. Marriages
10.3. Divorce
10.4. Legal relations between spouses
10.5. Legal relations between parents and children
10.6. Adoption in international private law
Topic 11. INHERITANCE LEGAL RELATIONS IN PRIVATE INTERNATIONAL LAW
11.1. Main problems in the field of inheritance relations complicated by a foreign element
11.2. Inheritance rights of foreigners in the Russian Federation and Russian citizens abroad
11.3. Regime of “escheat” in private international law
Topic 12. INTERNATIONAL PRIVATE LABOR LAW
12.1. Conflict of laws problems of international labor relations
12.2. Labor Relations with a foreign element according to the legislation of the Russian Federation
12.3. Industrial accidents and “mutilation cases”
Topic 13. OBLIGATIONS FROM OFFENSE IN PRIVATE INTERNATIONAL LAW
13.1. The main problems of obligations from offenses (delicts)
13.2. Tort obligations with a foreign element in the Russian Federation
13.3. Unified international legal norms of tortious obligations
INTERNATIONAL CIVIL PROCEDURE
Topic 14. TRIAL OF CIVIL CASES WITH A FOREIGN ELEMENT
14.1. The concept of international civil procedure
14.2. Sources of international civil procedure
14.3. General beginnings procedural status of foreign persons in civil proceedings
14.4. International jurisdiction
14.5. Execution of foreign letters rogatory
14.6. Recognition and enforcement of foreign judgments
14.7. Notarial actions in international private law and international civil procedure
Topic 15. INTERNATIONAL COMMERCIAL ARBITRATION
15.1. Legal nature of international commercial arbitration
15.2. Types of international commercial arbitration
15.3. Law applicable to arbitration
15.4. Arbitration Agreement
15.5. Form and content of the arbitration agreement
15.6. Recognition and enforcement of foreign arbitral awards
15.7. International commercial arbitration in the Russian Federation
BIBLIOGRAPHY.
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