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Table of contents

1. Accepted abbreviations
2. The concept and system of international private law (The concept and subject of international private law. The place of international private law in the system of law. The normative structure of international private law. Methods of regulation in international private law)
3. Sources of private international law (The concept and specifics of the sources of international private law. National law as a source of international private law. International law as a source of international private law. Judicial and arbitration practice as a source of international private law. Doctrine of law, analogy of law and law, general principles of law civilized peoples as a source of international private law Autonomy of the will of the subjects of legal relations as a source of international private law)
4. Conflict law is the central part and subsystem of private international law (Basic principles of conflict of law. Conflict rule, its structure and features. Types of conflict rules. Main types of conflict bindings. Modern problems of conflict of law. Qualification of the conflict rule, its interpretation and application. Limits of application and actions of conflict rules. The theory of references in private international law. Establishing the content of foreign law)
5. Subjects of private international law (Status of individuals in private international law, determination of their civil capacity. Civil capacity of individuals in private international law. Legal status of legal entities in private international law. Specifics of the legal status of transnational companies. Legal status of the state as a subject of private international law .International intergovernmental organizations as subjects of private international law)
6. Property law in private international law (Conflict issues of property law. Legal regulation of foreign investment. Legal status of foreign investment in free economic zones)
7. Law of foreign economic transactions (General provisions. Conflict issues of foreign economic transactions. Scope of the obligation statute on foreign economic transactions. Form and procedure for signing transactions. International legal unification of norms on foreign economic transactions. International trade custom. International rules for a unified interpretation of trade terms. Theory of lex mercatoria and non-state regulation of foreign economic transactions)
8. The law of international transportation (General provisions of the law of international transportation. International rail transportation. International road transportation. International air transportation. International maritime transportation. Relations associated with the risk of navigation)
9. International private currency law (Financing of international commercial transactions. International settlements, currency and credit relations. Forms of international settlements. International settlements using a bill of exchange. International settlements using a check. Legal specifics of monetary obligations)
10. Intellectual property in private international law (The concept and features of intellectual property. Specificity of copyright in private international law. International protection of copyright and related rights. Specificity of industrial property law in private international law. International and national regulation of inventive law)
11. Marriage and family relations in private international law (Main problems of marriage and family relations with a foreign element. Marriage. Divorce. Legal relations between spouses. Legal relations between parents and children. Adoption (adoption) in private international law)
12. Inheritance legal relations in private international law (Main problems in the field of inheritance relations complicated by a foreign element. Inheritance rights of foreigners in the Russian Federation and Russian citizens abroad. The regime of "escheated property" in private international law)
13. International private labor law (Conflict problems of international labor relations. Labor relations with a foreign element under the legislation of the Russian Federation. Accidents at work and "crippled cases")
14. Obligations from offenses in private international law (Main problems of obligations from offenses (torts). Tort obligations with a foreign element in the Russian Federation. Uniform international legal norms of tort obligations. International civil procedure)
15. Litigation of civil cases with a foreign element (The concept of international civil procedure. Sources of international civil procedure. General principles of the procedural position of foreign persons in civil proceedings. International jurisdiction. Execution of foreign letters of request. Recognition and execution of foreign judgments. Notarial acts in private international law and international civil procedure)
16. International commercial arbitration (Legal nature of international commercial arbitration. Types of international commercial arbitration. Law applicable by arbitration. Arbitration agreement. Form and content of an arbitration agreement. Recognition and enforcement of foreign arbitral awards. International commercial arbitration in the Russian Federation)

1. Regulatory legal acts

Constitution - The Constitution of the Russian Federation, adopted by popular vote on 12.12.1993/XNUMX/XNUMX

AIC - Arbitration Procedure Code of the Russian Federation dated July 24.07.2002, 95 No. XNUMX-FZ

VC - Air Code of the Russian Federation dated March 19.03.1997, 60 No. XNUMX-FZ

GSU - German Civil Code 1900

GC - Civil Code of the Russian Federation: part one dated November 30.11.1994, 51 No. 26.01.1996-FZ; part two dated January 14, 26.11.2001 No. 146-FZ; part three dated November XNUMX, XNUMX No. XNUMX-FZ

GIC - Civil Procedure Code of the Russian Federation dated November 14.11.2002, 138 No. XNUMX-FZ

KTM - Merchant Shipping Code of the Russian Federation dated April 30.04.1999, 81 No. XNUMX-FZ

NK - Tax Code of the Russian Federation: part one dated July 31.07.1998, 146 No. 05.08.2000-FZ; part two dated 117 No. XNUMX-FZ

UK - Family Code of the Russian Federation dated December 29.12.1995, 223 No. XNUMX-FZ

Customs Code - Customs Code of the Russian Federation dated May 28.05.2003, 61 No. XNUMX-FZ

TC - Labor Code of the Russian Federation dated December 30.12.2001, 197 No. XNUMX-FZ

Criminal - Criminal Code of the Russian Federation dated 13.06.1996 No. 63-FZ

FGK — French Civil Code 1804

2. Authorities

SAC RF - Supreme Arbitration Court of the Russian Federation

Russian Armed Forces - Supreme Court of the Russian Federation

Russian Foreign Ministry - Ministry of Foreign Affairs of the Russian Federation

Ministry of Justice of Russia - Ministry of Justice of the Russian Federation

3. Other abbreviations

par. - paragraph(s)

AIH - Association of International Road Carriers of the Russian Federation

NPP - Nuclear power plant

WIPO - World Intellectual Property Organization

WTO - World Trade organisation

GATT - General Agreement on Tariffs and Trade

ECMT - European Conference of Transport Ministers

EC - European Union

ECE - Economic Commission for Europe

IATA - International Air Transport Agency

ICAO - International Civil Aviation Organization

IMO - International Maritime Organization

INCOTERMS - International rules for the unified interpretation of trade terms

INPADOC - International Patent Documentation Center

IAEA - International Atomic Energy Agency

POPPY - Maritime Arbitration Commission of the Russian Federation

IBRD - International Bank for Reconstruction and Development

IMF - International Monetary Fund

IHL - International Civil Procedure

MIGA - Multilateral Investment Guarantee Agency

ICA - International commercial arbitration

ICAC - International Commercial Arbitration Court of the Russian Federation

ITUC - International commercial law

MKTU - International classification of goods and services for the registration of marks

MMPO - International intergovernmental organizations

ILO - The International Labour Organization

WFP - International public law

ICC - International Chamber of Commerce

MTT - International transit tariff

ICSID - International Center for the Settlement of Investment Disputes between States and Private Foreign Investors

MCHVP - International private currency law

MCMP - International private maritime law

PIL - International private law

MCTP - International private labor law

NATO - North Atlantic Treaty Organization

UN - United Nations

OECD - Organization for Economic Cooperation and Development

n - item(s)

sub. - subparagraph(s)

sect. - section(s)

RAW - Russian Authors Society

RF - Russian Federation

CIS - Commonwealth of Independent States

SDR - Special Drawing Rights

the USSR - Union of Soviet Socialist Republics

Art. - article(s)

FEZ - free economic zone

TNK - Transnational corporation(s)

CCI - Chamber of Commerce and Industry of the Russian Federation

UNIDROIT - International Institute for the Unification of Private Law

FATF - Financial Action Task Force on Money Laundering

FZ - The federal law

CBR - Central Bank of the Russian Federation h - part(s)

CHPO - Private law relations

UNESCO - United Nations Educational, Scientific and Cultural Organization

UNCITRAL - United Nations Commission on International Trade Law

A COMMON PART

Topic 1. CONCEPT AND SYSTEM OF PRIVATE INTERNATIONAL LAW

1.1. The concept and subject of 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 PIL. 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, the constant migration of the population and labor, 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. PIL is the only branch of law intended for the legal regulation of civil (in the broad sense of the word, i.e. civilistic, private law) relations arising in the field of international communication.

PIL 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:

1) the 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) the object of the legal relationship is located abroad;

3) 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 GK. 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.

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

1.2. The place of private international law in the system of 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. The concept of "international" here has a completely different character than in the MPP, it means only one thing: there is a foreign element in a civil legal relationship (it does not matter, one or more, and which version of the foreign element). However, PIL 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 PIL". At first glance, this terminology seems absurd. There cannot be a branch of law that is both domestic (national) and international at the same time. In fact, there is nothing absurd here. It's just that we are 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 PIL norms is also expressed in the fact that one of its main sources is directly the MPP, which plays an extremely important role in the formation of the national PIL. It is customary to talk about the dual nature of the norms and sources of PIL. Indeed, this is perhaps the only branch of national law in which the MPP acts as a direct source and has direct effect. That is why the definition of "hybrid in jurisprudence" is quite applicable to PIL.

The main (general) principles of PIL can be considered as those specified in paragraph "c" of Art. 38 of the Statute of the International Court of Justice "general principles of law inherent in civilized nations." The general principles of law are generally recognized legal postulates, methods of legal technique, "legal maxims" developed by the lawyers of ancient Rome. Let us list the general principles of law that are directly applied in PIL: you cannot transfer more rights to another than you yourself have; principles of justice and good conscience; principles of non-abuse of rights and protection of acquired rights, etc. By "civilized nations" are meant those states whose legal systems are based on the received Roman law. The main general principle of PIL (as well as national civil and international public) is the principle of "pacta sunt servanda" (contracts must be respected). Special PIL principles:

1) the autonomy of the will of the participants in the legal relationship is the main special principle of PIL (as well as any other branch of national private law). The autonomy of the will underlies all private law in general (the principle of freedom of contract; the freedom to have subjective rights or to refuse them; the freedom to apply to public authorities for their protection or to suffer violations of one's rights);

2) the principle of granting certain regimes: national, special (preferential or negative), most favored nation treatment. National and special regimes are mainly granted to foreign individuals; most favored nation treatment - to foreign legal entities (although this provision is not mandatory and legal entities can enjoy the national treatment, and individuals - the most favored nation treatment);

3) the principle of reciprocity. In PIL, two types of reciprocity are distinguished - material and conflict. Problems of conflict reciprocity (or reciprocity in the broad sense of the word) are related to conflict law and will be discussed below. Material reciprocity, in turn, is divided into material reciprocity itself (granting foreign persons the same amount of specific rights and powers that national persons enjoy in the corresponding foreign state) and formal (granting foreign persons all the rights and powers arising from local legislation). As a general rule, it is formal reciprocity that is granted, but in certain areas - copyright and invention right, avoidance of double taxation - it is customary to provide material reciprocity;

4) the principle of non-discrimination. Discrimination is a violation or restriction of the legal rights and interests of foreign persons in the territory of a state. The universally recognized norm of PIL of all states is the absolute inadmissibility of discrimination in PPO;

5) the right to retortion. Retortions are lawful retaliatory measures (restrictions) of one state against another, if the legitimate rights and interests of individuals and legal entities of the first state are violated on the territory of the latter. The purpose of retortions is to achieve the abolition of discriminatory policies - Art. 1194 GK.

1.3. Normative structure of private international law

The normative structure of PIL is characterized by increased complexity. This branch of law is made up of norms that are different in nature, nature and structure. They can be classified as follows: conflict (from lat. collision - collision, conflict) and substantive law. Conflict (reference) norms are unique in nature and are found only in PIL. In no other branch of law is there even an analogue of such norms. Their sources are national legislation (internal conflict of laws rules) and international treaties (unified or contractual conflict of laws rules). The system of international treaties containing unified conflict of laws rules can be conditionally designated as a set of conventions on "applicable law". Uniform conflict rules are exclusively of contractual origin (there are no ordinary international conflict rules).

In the normative structure of PIL, conflict rules play a fundamental role. This branch of law arose and developed precisely as conflict law. For a long time (practically until the middle of the XNUMXth century), PIL was defined exclusively as a set of conflict rules. The understanding of PIL exclusively as a conflict of laws has been preserved in the modern world - the American doctrine of "conflict" law, the legislation of a number of European states (for example, Switzerland and Austria), the resolutions of the Institute of International Law.

At present, it is practically generally recognized that the normative structure of PIL is not limited to conflict of laws rules. PIL also includes substantive legal norms - international (unified) and national. Uniform substantive legal norms occupy a very important place in the regulatory structure of PIL. Their sources are international treaties and customs, ITUC. Unified substantive legal norms are of a public law nature (they are created by states - powerful subjects) and represent the final result of the process of coordinating the will of two or more states.

Such norms are called conciliatory, coordinating. The unified substantive legal norms can be directly applied to regulate PPOs with a foreign element (Article 7 of the Civil Code). To do this, they must be implemented in domestic legislation. The implementation of the norms of the majority of international treaties regulating PVE into national law is carried out through the ratification of the relevant international agreement (if it needs to be ratified) or through its signing (and the subsequent issuance of certain internal legal acts that introduce the norms of the treaty into the national legal system).

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 were created in the process of international rule-making and embody the agreed 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 PPO 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 PIL are also part of the regulatory structure of PIL. True, this position in the doctrine of law is not universally recognized. Many scientists believe that national substantive legal norms cannot be included in the structure of PIL. 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 PIL. This concept seems to be the most correct and consistent with modern trends in the development of regulation of international civil legal relations.

From the point of view of PIL, the substantive legal norms of national law can be divided into three groups: general norms governing any legal relationship - both those that have a foreign element in their composition and those that do not have such an element (Article 11 of the Labor Code); "specially national" norms regulating relations only between citizens of a given state on its territory, that is, relations not burdened with 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 09.07.1999, 160 No. 08.12.2003-FZ "On Foreign Investments in the Russian Federation" (as amended on December 4, 124); clause XNUMX of Art. XNUMX SC). Of all domestic substantive legal norms, it is specifically foreign norms that are included in the structure of PIL.

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 PIL 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.

1.4. Methods of regulation in private international law

The general method of regulating relations in the field of PIL is the method of decentralization and autonomy of the will of the parties (as in any other branch of national private law). Directly in PIL there are also special methods of legal regulation - conflict of laws and substantive law. Special PIL methods 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 PIL. 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 PIL there is a concept of "colloding" (colliding) laws. The legal systems of different states regulate the same problems of private law in different ways (the concept of the legal personality of individuals and legal entities, the types of legal entities and the procedure for their formation, the form of the transaction, the statute of limitations, 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 regulate this international civil legal relationship helps to eliminate 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 PIL, since the basis of the PIL itself is precisely the 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 basically 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 collision method continues to play a major role in PIL.

Topic 2. SOURCES OF PRIVATE INTERNATIONAL LAW

2.1. The concept and specifics of the sources of international private law

The source of law is a form of existence of legal norms. Like the PIL itself as a whole, its sources are ambiguous and paradoxical. The specificity of the sources of PIL is generated by its subject of regulation: NPO, aggravated by a foreign element, i.e., lying in the sphere of international communication and affecting the interests of two or more states. On the one hand, PIL is a branch of national law, therefore, its sources are of a national legal nature. On the other hand, PIL regulates precisely international civil relations, therefore, international law acts as an independent source of this branch of law. This point of view is also supported by the PIL normative structure itself: unified international norms (both substantive and conflict of laws) are directly included in its structure and are an integral part of it. It is this state of affairs that predetermines the dual nature of the sources of PIL (simultaneously both national and international legal).

The national source of PIL is the entire domestic legal system as a whole, the entire legal order of a given state. Such an approach in determining the national sources of PIL is due to the fact that its fundamental part is conflict rules that refer not to a specific law, but to the entire legal system, to the entire legal order as a whole. Naturally, laws and by-laws take the first place among internal sources of PIL. Many states have adopted special laws on PIL. But even in such states, national civil, commercial, family, labor, civil procedure and arbitration legislation as a whole can be called a source of PIL. An important place among the sources is occupied by national legal customs in the field of PIL (it should be immediately noted that there are a limited number of such customs in all states).

Specific issues of regulation of PPO with a foreign element are mainly regulated in domestic by-laws, departmental and interdepartmental instructions, which are also included in the legal system of the state and act as sources of PIL. National judicial and arbitration practice stands out as an independent source of PIL, but it is also part of the national legal order, so judicial practice can also be attributed to national law as a source of PIL.

By analogy with national law, it can be argued that the source of PIL is international law in general. The system of international legal sources of PIL includes international treaties, international legal customs and the system of non-state regulation of foreign trade activity (ITC). Of all the international legal sources of PIL, it is international treaties that are of primary importance. In addition, we must not forget that the generally recognized norms and principles of international law are part of the legal system of most states and take precedence over the norms of national law in case of their conflict (Article 15 of the Constitution and Article 7 of the Civil Code).

The paradoxical nature of the sources of PIL is manifested in the fact that independent sources of this branch of law are such forms of existence of legal norms, which in other branches of law are considered either auxiliary sources, or means of determining and interpreting legal norms, or simply legal institutions. This is due to the fact that PIL is particularly complex, and, like in no other branch of law, there are a huge number of gaps. Such sources of PIL include judicial and arbitration practice (both national and international), the doctrine (science) of law, the analogy of law and the analogy of law, the autonomy of the will of the parties, the general principles of the law of civilized peoples.

The sources of the Russian PIL are listed in the Civil Code (Articles 3, 5-7, 1186), the Code of Civil Procedure (Article 11), the APC (Article 13), the UK (Articles 3-6). Russian legislation recognizes national law, international treaties and customs, the analogy of law and law as sources of PIL as sources.

2.2. National law as a source of private international law

National law is the main and primary source of PIL as a branch of national law. The main role in the creation of PIL norms is played by national laws. In the first place are those national laws that are specifically designed to regulate civil law relations with a foreign element (special laws on PIL, investment legislation, legislation on taxation of foreign persons, on compensation agreements). However, one should not forget that the basic law of any state (and, accordingly, the main source of all national law) is the constitution of this state. Speaking about the sources of the Russian PIL, first of all, the Constitution should be mentioned. It must be emphasized that the Constitution establishes only the most general principles for regulating international civil relations (Chapter 2). Specific issues of legal regulation are contained in special federal laws.

In the legislation of the Russian Federation regulating relations in the field of PIL, it is necessary to single out: Civil Code, Civil Procedure Code, Agroindustrial Complex, Labor Code, NC, NK, VK, KTM, Customs Code, Fundamentals of Legislation on Notaries, approved by the Supreme Council of the Russian Federation on February 11.02.1993, 3517 No. 1-08.12.2003 (in as amended on 07.07.1993), Law of the Russian Federation of 5338 No. 1-XNUMX "On International Commercial Arbitration". By-laws, departmental instructions, non-normative acts of the ministries and departments of the Russian Federation are also sources of Russian PIL. Of course, all of the above legislation, as well as by-laws and departmental instructions, in general, cannot be considered sources of Russian PIL. We are talking about the separate norms contained in them, chapters and sections specifically devoted to the regulation of PPO with a foreign element.

In Russian law, there is no separate law on PIL, although a draft of such a law at the doctrinal level was prepared already in the 80s. 31th century Unfortunately, the full codification of the Russian PIL was not possible; a special law on PIL was not considered even at the level of a draft law. In Russian law, an inter-branch codification has been made: the Civil Code, the Investigative Committee, the KTM, the CPC and the APC include special chapters and sections that regulate PPO with a foreign element. The main sources of the Russian PIL - sec. VI GK, section. VII SC, ch. XXVI KTM, sec. V Code of Civil Procedure, Ch. 33-4 APK. The main source is sect. Part VI of the third Civil Code, since the provisions of civil law can be applied by analogy to all PPOs that are not regulated by special legislation (Article 66 of the UK). Of particular importance is Ch. Section XNUMX Part VI of the third Civil Code, which contains general provisions for the application of foreign law on the territory of the Russian Federation and establishes general principles for regulating all PPOs with a foreign element.

Despite the fact that the intersectoral codification of the Russian PIL was undertaken quite recently (1995-2003), a large number of gaps and other serious shortcomings have already been identified in all legislative acts in this area. In principle, at the current stage of development of international civil relations in the Russian Federation, a separate special law should be adopted that would regulate the entire spectrum of relations in the field of PIL. A full-scale codification of PIL has advantages over an intersectoral one: fewer gaps, no "reciprocal references" and the need to apply various regulations, fewer grounds for applying the analogy of law and law.

2.3. International law as a source of private international law

The international legal sources of PIL are an international treaty, an international custom, and the ICR.

International treaty is important as a source of MCHP. There are significant differences between MSP and PIL agreements. The creator (subject) and addressee of the norms of international agreements in WFP is simultaneously the state itself. The state creates the norms of the MPP, addresses them to itself, and imposes responsibility for their violation on itself. The norms of international agreements governing relations in the field of public law, as a rule, are not self-executing. They are addressed to the state as a whole and cannot be applied in national law without issuing a special domestic act specifying such norms and adapting them for operation in national law.

The creator (subject) of the norms of international agreements regulating the problems of PIL is also the state. Regardless of the subject of regulation, any interstate agreement falls within the scope of the MPP. However, the vast majority of international conventions devoted to the regulation of private law issues are addressed not to the state as a whole, but to its national law enforcement agencies, individuals and legal entities. Such international treaties contain, in the main, self-executing norms, that is, specific and completed, already fully adapted for direct action in national law. For the implementation of the norms of such an international treaty into domestic law, it is not necessary to issue special laws, but it is enough to ratify the treaty or sign it. Of course, all international agreements on PIL issues also contain obligations of states as a whole (to change their legislation in order to fulfill obligations under this agreement, to denounce previously concluded agreements, etc.). However, since the norms of such treaties are addressed to national participants in civil legal relations, there is a direct possibility of direct application of the norms of international treaties in national courts and arbitrations (Article 7 of the Civil Code).

International treaties regulating PIL issues constitute a whole system in international law. Most of these agreements are bilateral agreements (on legal assistance in civil, family and criminal cases, consular conventions, agreements on trade and navigation, merchant shipping). Of greatest importance for international cooperation are, of course, not bilateral, but universal international agreements that establish uniform legal regulation at the global level. At present, a whole system of universal conventions has been developed that regulate relations in almost all areas of PIL. The main drawback of most of these agreements is their insufficiently representative nature (for example, only about 1980 states of the world participate in the UN Vienna Convention on Contracts for the International Sale of Goods of 100). Many universal international agreements in the field of PIL, adopted quite a long time ago, have not yet entered into force, as they have not gained the required number of participants.

More successful is the codification of PIL, produced through the conclusion of international conventions of a regional nature. In the modern world, there is the only interstate codification of PIL at the regional level - this is the Bustamante Code of 1928 (participants are the states of Central and South America). The Bustamante Code is a full-scale codification of unified regional conflict of law rules that are valid and applied by the courts of all participating States. Regional conventions on cooperation in the field of PIL are concluded within the framework of various international organizations, for example, in the Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993, signed by the CIS countries, in the conventions of the European Council.

International legal custom. As a source of MPP, international legal custom is defined in the Statute of the International Court of Justice. A custom is a general practice that is accepted as law. In order for the practice to acquire the character of a customary rule of law, the duration, regularity, stability and repetition of its application are necessary. In addition, such practice should be formally recognized as a rule of law. The custom is considered an oral form of sources of law. This, however, does not mean that there is no written fixation of international legal customs. On the contrary, all customs (both national legal and international) are almost always fixed in writing. The fact that this source of law is considered oral means that the recording of customs is made in non-normative acts (jurisprudence, diplomatic correspondence, private unofficial codifications).

In PIL, the most important role is played by international trade customs, business practices and merchant shipping. In foreign trade, types of ordinary transactions have been developed based on a unified interpretation of stable trade, business and banking terms. The ICC in Paris produced several private unofficial codifications of international customs: the Warsaw-Oxford Rules for CIF transactions, the York-Antwerp Rules on General Average (last edition 1994), INCOTERMS-2000, the Uniform Rules for Documentary Letters of Credit and Collection, etc. All these acts are not of a normative nature and are not sources of law. It is simply a record, a written fixation of customary rules of law. The source of law here is each separate rule of conduct, a separate type of transaction. International custom is recognized as a source of law in Russian legislation (Article 5 and Clause 6 of Article 1211 of the Civil Code).

International commercial law. The concept of "lex mercatoria" (ITC, transnational trade law, the law of the international community of merchants) appeared in law relatively recently. Since the middle of the XX century. MCP is commonly understood as a system of non-state regulation of foreign trade activities. This system is also defined as soft flexible law, the norms of which are advisory in nature (the participants in the legal relationship are not bound by imperative state regulations). The concepts of quasi-international law and the law of TNCs adjoin the concept of the MCP. The advantages of the MCP in comparison with national legislation and international treaties lie precisely in providing participants in international trade with maximum freedom of action. The basis of the lex mercatoria is the resolution of the recommendations of international organizations on foreign trade issues (general terms of supply, form contracts, accession agreements, model contracts, model regulations).

In the system of non-state regulation of foreign trade, it should be noted: the general conditions of supply developed by the United Nations Economic Commission for Europe; standards of the Inland Transport Commission; ICAO and IMO standards and recommendations; model international patent developed by INPADOC. The MCP was not recognized in the Russian legal doctrine until the end of the 80s. 1990th century (in connection with the state monopoly in foreign trade). Only in the early XNUMXs. lex mercatoria was recognized in Russian legal science as part of the MPP and the source of PIL.

2.4. Judicial and Arbitration Practice as a Source of International Private Law

In many foreign countries, judicial and arbitration practice as a source of PIL plays a more important role than national legislation and international law (France, Great Britain, USA). Judicial and arbitration practice, which is a source of law, is understood as decisions of courts (as a rule, of higher instances) that have a law-making character - they formulate new rules of law. It should be borne in mind that the law-making role of courts and arbitrations is not to create new rules of law (courts do not have legislative powers and cannot "create" law), but to identify the current (positive) law and formulate it as a system of legally binding prescriptions. In principle, the court only fixes a certain rule of conduct, which in society is regarded as having a binding character.

Anglo-American law is based in principle on a system of judicial precedents, which in these countries play the role of the main source of law (including private international law). Judicial precedent can be defined as follows - this is a decision of a higher court, which is imperative, decisive 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. Judicial precedent as a decision that has a leading role in resolving similar cases in the future is used in almost all states, but only in countries with a common legal system there is a holistic case law.

At present, a regional system of case law has already been formed and is operating - European case law, which has developed within the EU and developed by the European Court of Justice. All decisions of this court are binding on the Member States of the EU, their national courts and administrative bodies, individuals and legal entities, and automatically have the character of a precedent. The European Court of Justice plays a decisive role in the development of regional PIL in the EU countries.

In Russian legislation, judicial and arbitration practice is not formally considered a source of law. The domestic legislator regards the practice of law enforcement agencies as the main means for interpreting, defining and applying legal norms. This approach is completely contrary to established practice. In fact, Russian courts and arbitrations play exactly the same role in identifying the current law and formulating it, as well as the courts of those states in which judicial practice is recognized as an official source of law. The significance of the source of law is primarily the clarifications of the plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation. The practice of Russian law enforcement agencies is of particular importance for the development and improvement of the Russian PIL. It has already been said that one of the most significant shortcomings of domestic legislation in the field of PIL is the vagueness of its wording and the actual impossibility of their direct application by the courts without appropriate clarifications of the plenums.

2.5. Doctrine of law, analogy of law and law, general principles of law of civilized peoples as a source of private international law

All these institutions are considered independent sources of PIL in the legislation of most foreign countries and in foreign legal science. In Russian legislation and the prevailing domestic jurisprudence, the listed institutions do not belong to the sources of law (with the exception of the analogy of law and law).

Doctrine of law. The doctrine of law is the statements of scientists recognized at the official, state or international level (expert opinions, comments on legislation, responses to requests from official bodies and officials). In any civilized state, there is a "right to disagree": all scientists have the right to express different opinions on the same issue. If the doctrine has a practical application, then the public authorities are completely free to choose between the various points of view expressed by lawyers. The Russian legislator takes into account the assessment of the doctrine as a source of PIL in other states (Article 1191 of the Civil Code, Article 14 of the APC), but does not consider the developments of Russian scientists even an auxiliary source of law.

Currently, the PIL doctrine is widely used for the purpose of its unification and harmonization. The developments of UNIDROIT, the Hague Conferences on PIL and the International Law Commission form the basis of many international agreements and are used by most national legislators to improve the PIL of various states. The main function of the doctrine as a source of PIL is the maximum filling of these gaps at the level of scientific developments.

Analogy of law and analogy of law. The analogy of the law implies the application to relations (if this does not contradict their essence) of the legislation governing similar relations, if these relations are not directly regulated by law, or by agreement of the parties, or by the customs of business. The analogy of law is used if it is impossible to use the analogy of the law: the rights and obligations of the parties are determined on the basis of the general principles and requirements of the law, the requirements of good faith, reasonableness and fairness. The analogy of law and the analogy of law have been known since the time of Roman law to the legislation of most states of the world. Almost everywhere, these institutions are considered sources of law (Article 6 of the Civil Code, Article 5 of the UK, Article 11 of the Code of Civil Procedure, Article 13 of the APC). The main functions of the analogy of law and law in PIL are: filling in the gaps, interpreting the principle of a real connection between the law and the essence of the relationship.

General principles of the law of civilized peoples. In accordance with Art. 38 of the Statute of the International Court of Justice, general principles of law are an independent source of MPP. True, they are not its main sources, which are the international treaty and international legal custom. In addition, the Statute emphasizes that, at the request of the parties, the court can resolve the dispute not on the basis of international law, but on the basis of the principles of justice and good conscience (the principle of justice and good conscience is one of the general principles of law). We can make an unambiguous conclusion - the general principles of law are included in the system of international law, therefore, they are international legal sources of PIL of any state.

The selection of these principles as an independent source of PIL is associated with their dual role in the PIL system - these are both its basic principles and the form of existence of legal norms. General principles of law are mentioned in Russian legislation (Article 6 of the Civil Code) - these are the principles of good faith, reasonableness and justice. The main role of the general principles of law as a source of PIL is to resolve a private legal relationship that affects the interests of two or more states, not on the basis of their national law, but with the help of traditional legal postulates common to all.

2.6. Autonomy of the will of the subjects of legal relations as a source of private international law

The autonomy of the will of the participants in a civil legal relationship is a fundamental, fundamental principle of any domestic private legal system. The essence of autonomy of will lies in the freedom of the parties to join or not to join any NPO, both regulated and not regulated by law. In PIL, the autonomy of the will plays a special role: it acts as a triune phenomenon - the source of PIL, its main special principle and one of the conflict bindings.

The autonomy of the will as a source of law lies in the possibility of the subjects of the contract to choose any model of behavior, unknown to anyone, not tested by anyone, absolutely new for this legal system. At the same time, the autonomy of the will is not unlimited: any national legislator sets its limits - private agreements should not violate state-power regulations (including imperative norms of private law). The model of behavior chosen by the parties is strictly binding on the parties themselves and on all state bodies (primarily courts and arbitrations). In all legal systems, the autonomy of the will is valued as a private law (lexprivata).

In essence, the autonomy of the will as a source of Russian law of obligations is enshrined in Art. 421 GK. The parties have the right to enter into any contractual relations, including those not provided for in the Civil Code, to conclude mixed contracts (contracts containing elements of several independent contracts). However, the autonomy of the will is not singled out by the Russian legislator as an independent source of law, which contradicts both the provisions of domestic legislation and practice. In the Russian PIL, from a formal legal point of view, the autonomy of the will is assessed as follows: it is not a source of law, but only one of the conflict bindings (Article 1210 of the Civil Code). Such an assessment absolutely does not correspond to the true state of affairs, is completely outdated and requires a speedy review.

Topic 3. CONFLICT LAW - THE CENTRAL PART AND SUBSYSTEM OF PRIVATE INTERNATIONAL LAW

3.1. Basic principles of conflict of laws

The presence of a foreign element in the CPO is an indispensable basis for posing a conflict question. The essence of the conflict question is the law of which state should regulate this legal relationship with a foreign element: the law of the country of the court or the law of the state to which the foreign element belongs. The problem of choice of legislation exists only in PIL. If the conflict issue is resolved in favor of the application of the law of another state, then the national judicial authority is obliged to resolve the dispute not on the basis of its own law, but on the basis of foreign law. The possibility of application by national law enforcement agencies of foreign private law is the main paradox and the main difficulty of PIL.

National courts apply foreign law only in resolving private law disputes aggravated by a foreign element. In this case, foreign law is applied solely by virtue of the provisions of national legislation. The conflict rules of national law, created by the national legislator, prescribe the national judicial authorities to apply not their own law, but the law of another state. In principle, the law of any state, as a manifestation of its jurisdiction, supremacy and sovereignty, is strictly territorial in nature and can regulate relations only on the territory of this state. Conflict rules of national law endow foreign private law with extraterritorial effect.

Extraterritorial effect can only have the norms of foreign private law. The principle of law is the recognition of a strictly territorial nature of national public and procedural law. National public and national procedural law are valid only on their territory and cannot be applied in the courts of other states.

Conflict rules are the basis for resolving the conflict issue, the foundation of PIL. A conflict rule is a rule of a general, abstract, referential nature, which does not contain a material model of behavior, does not establish the rights and obligations of the parties, but only on the basis of the objective criterion laid down in this rule determines the law of which state should regulate the relevant relations. The need for the existence of conflict rules is due to the difference in legal systems - the same NPOs are resolved differently in different states. The conflict law is a set of conflict rules. Like PIL in general, conflict of laws has a national character. The legal order of each state has its own conflict of laws.

The conflict law is a subsystem of PIL, the main institution of its General Part. PIL was formed and developed precisely as a conflict of law. The main source of conflict rules is national legislation, however, attempts have long been made in the world to create a unified international conflict of laws (Bustamante Code, a set of regional and universal conventions on applicable law).

3.2. Collision norm, its structure and features

A conflict rule is a rule of an abstract, referential nature that decides the question of the law of which state should be applied to resolve a given case. By their nature, internal conflict rules are to a certain extent related to the reference and blanket rules of national law. However, both reference and blanket rules refer to the legal system of a particular state, specifically indicating the applicable legislative act or even the rule of law. Conflict rules are immeasurably more abstract in nature, they provide for the possibility of applying both their own national law, and the private law of other states, and international law. The conflict norm is a kind of "jump to nowhere".

The structure of a conflict rule is fundamentally different from the structure of an ordinary legal rule (in a conflict rule there is no hypothesis, no disposition, no sanction). The necessary structural elements (requisites) of the conflict norm are the scope and binding. Both structural elements must be present simultaneously in any conflict rule: there are no conflict rules that consist only of scope or only of binding. The scope of the conflict rule determines the content of the legal relationship to which this rule applies.

The conflict binding, in essence, solves the main problem of PIL: it is in the binding that the answer to the conflict question is contained, the law of which state should resolve this legal relationship. It is in the conflict binding that some objective criterion is contained that allows us to resolve the issue of applicable law. Anchor is the main element of the conflict rule. It has an abstract character, refers not to a specific law or a specific legal act, but to the legal system as a whole, to the entire legal order of a state. Collision binding is often referred to as the "attachment formula". However, this term is not applicable to all conflict bindings, but only to those that provide for the possibility of applying foreign law, and not just the law of the country of the court. An indication of the possibility of applying foreign law should be expressed in the most general way, by establishing a conflict of laws rule.

As an example of a conflict of laws rule, one can cite the provision contained in paragraph 2 of Art. 1205 of the Civil Code: "The belonging of property to movable or immovable things is determined by the law of the country where this property is located." In this conflict rule, the words "belonging of property to movable or immovable things" are the scope of this rule; the words "by the law of the country where this property is located" - a conflict binding; the words "country where this property is located" - an objective criterion that allows you to establish the applicable law. Terminologically, very often the objective criterion completely coincides with the text of the conflict binding (Article 1198 of the Civil Code): "The right of an individual to a name, its use and protection is determined by its personal law." In this conflict norm, the words "personal law" are both a conflict binding and an objective criterion.

3.3. Types of conflict rules

In the science of law, several types of conflict rules are distinguished depending on the characteristics of their conflict bindings, regulated conflicts, sources of origin, action in time and space. The specific division of conflict norms depends on the criteria for their classification. Let us present the most convenient classification of conflict rules according to their types.

1. The way of expressing the will of the legislator - imperative, alternative and dispositive conflict rules. In imperative norms, there can be only one conflict binding (any, except for the autonomy of the will and bindings derived from it - the criterion of a real connection, the law of the essence of the relationship and the own right of the contract). An imperative conflict of laws rule is an authoritative instruction of the legislator on the application of the law of only one particular state, established on the basis of some objective criterion (Article 1200, paragraph 1 of Article 1202, Article 1205, paragraph 3 of Article 1206, Article 1207 GK).

Alternative conflict norms are characterized by the presence of several conflict bindings (any, except for the autonomy of the will and its derivatives). The alternative rule gives the court the right to choose the applicable law at its own discretion (only the court has the right to choose the law, but not the parties to the legal relationship). Alternative norms are divided into simple and complex. Simple alternative conflict of law rules provide for the possibility of applying one or another law. The choice depends only on the judicial discretion and the actual circumstances of the case (paragraph 1 of article 1217 of the Civil Code). Complex (subordinate) alternative conflict rules establish the main and subsidiary bindings, which are applied depending on the differentiation of the volume of this conflict rule (paragraph 3 of article 1199, article 1201, paragraph 1 and 2 of article 1219 of the Civil Code). The main binding is applied in the first place, and subsidiary (there may be two or more) - in accordance with the specific circumstances of the case and only if it is impossible to apply the main binding.

The dispositive norms as the main conflict binding provide for the autonomy of the will of the parties (the right to choose the applicable law by the parties to the relationship in accordance with Article 1210 of the Civil Code). Terminologically, the right of the parties to autonomy of will can be expressed in different ways: "unless otherwise provided by the contract", "unless the parties have agreed otherwise", "the law chosen by the parties". In modern PIL, there is a tendency to transform the autonomy of the will. A large number of new conflict rules have appeared, derived from the right of the parties to choose the applicable law themselves: the law inherent in this agreement; own right of contract; the law of the essence of the relationship; criterion of the closest connection.

At present, autonomy of will and the conflict of law rules associated with it govern a very large number of foreign element PGOs. The autonomy of the will is considered to be the optimal conflict principle, since it provides for the most flexible, "soft" legal regulation. The dispositive conflict of laws rules of Russian legislation have a special, very peculiar specificity - in most of them, the autonomy of the will of the parties is limited by the establishment "unless otherwise provided by law" (Articles 1196, 1198, paragraph 2 of Article 1203, Article 1204 of the Civil Code). This formulation, in principle, is a favorite for the domestic legislator. The state always reserves the right to restrict the freedom of participants in civil transactions. Such formulations contradict the basic principles of Russian private law, modern trends in legal development, and from a legal point of view, they are completely vicious. Very indicative in this regard are the provisions that limit the autonomy of the will of the parties in tort obligations. The parties have the right to choose legislation, but this choice can only be made in favor of the law of the country of the court (paragraph 3 of article 1219, paragraph 2 of paragraph 1 of article 1223 of the Civil Code).

2. Form of conflict binding - bilateral and unilateral conflict rules. Unilateral - provide for the possibility of applying only their own national law, the law of the country of the court (Article 424 of the CTM): "The law of the state in whose court the case is being considered applies to the emergence of a maritime lien on a ship_". Such rules are mandatory. In Russian legislation, there is a tendency to replace the classic conflict rule "the law of the court" with the expression "Russian law applies" (clause 3 of article 1197, clause 3 of article 1199, article 1200 of the Civil Code, clause 1 of article 16 ° CC).

Bilateral conflict rules provide for the possibility of applying both national and foreign or international law. Such norms can have an imperative, alternative and dispositive (clause 1 of article 1197, article 1201, clause 1 of article 1211 of the Civil Code, respectively) character. In modern law, there are significantly more bilateral conflict of laws rules than unilateral ones. The conflict rule "the law of the court" is considered a "hard" law, and at present the legislation of all states seeks to establish a "soft, flexible" legal regulation, which is possible only through the use of bilateral conflict rules (especially dispositive ones). It is the binding of the two-sided conflict norm that is called the attachment formula.

3. Legal form (source of law) - national legal (internal - section VI of the third part of the Civil Code) and unified international legal (contractual - The Hague Convention on the Law Applicable to the Contract for the International Sale of Goods 1986) conflict of laws rules. Predominant application have, of course, internal conflict rules. The specificity of unified conflict of laws rules lies in the fact that these are uniform conflict of laws rules created on the basis of international agreements and representing the end result of the process of harmonizing the will of states. The unified conflict of laws rules in the national legal system act as norms of internal law (in accordance with Article 15 of the Constitution, Article 7 of the Civil Code) and do not differ from them in their legal nature. However, unified norms always remain connected with the international treaty that gave rise to them and, as a result, do not merge with internal conflict rules, exist in parallel with them and have features associated with a contractual origin.

4. The meaning of conflict rules - general (basic) and subsidiary (additional) conflict bindings; general and special collision bindings. General conflict bindings establish the law applicable in the first place ("basic" law), for example, para. 1 p. 1 art. 1223, paragraph 3 of Art. 1199 GK. Subsidiary conflict of laws rules establish an "additional right" that is applicable only in certain circumstances (as a rule, if for any reason it is impossible to apply the "basic" right), - paragraph 3 of Art. 1199, Art. 1201 GK.

General conflict bindings are common to most legal systems of the world conflict rules. In addition, these are general (cross-cutting), i.e. applicable in all sectors and institutions of PIL, conflict of laws rules: the personal law of an individual, the law of the court, the law of the flag, etc. Special conflict bindings are formulated directly for specific PIL institutions. They are applied in certain areas of PPO with a foreign element: the law of the adopter, the law of the donor, the law of the place of departure of the goods, etc. Special conflict bindings are a transformation of general conflict rules.

3.4. Main types of collision bindings

Types of conflict bindings (attachment formulas) are the most typical, maximally generalized rules most often used to build conflict norms. They are also called conflict criteria or conflict principles.

1. The personal law of an individual. Depending on the state's belonging to a certain legal system, the personal law of an individual is understood in two versions: as the law of citizenship in continental law and as the law of domicile (place of residence) in common law. The legal status of a person under the law of citizenship is determined by the legislation of the state whose citizenship the person has, under the law of domicile - according to the legislation of the state in whose territory the person resides. In modern law, there is a tendency for states to expand their jurisdiction as much as possible: in most legal systems, a combination of laws of citizenship and domicile is used to determine the personal law of an individual.

In Russian law, the personal law of individuals is defined in Art. 1195 GK. Since Russia belongs to the continental legal family, the general conflict binding is the law of citizenship. It is also possible to apply the law of the place of residence, since the domestic interpretation of the personal law takes into account the current trends in the development of PIL: for different categories of individuals, either the law of citizenship or the law of domicile is applied. Personal law determines the civil and civil procedural legal personality (personal status) of an individual (Article 1195-1199 of the Civil Code).

2. The law of nationality (personal law) of a legal entity. In modern PIL, there are four options for determining the personal law of legal entities:

a) according to the theory of incorporation, the personal law of a legal entity is the law of the state in which the entity is registered (incorporated). This interpretation is enshrined in the law of Great Britain, Russia, China, the Czech Republic, India, Cyprus, the USA;

b) according to the theory of settlement, a legal entity belongs to the state on whose territory its administrative center (board, headquarters) is located. This interpretation is characteristic of the law of most European countries (France, Germany, Spain, Belgium, Poland, Ukraine);

c) in accordance with the theory of an effective (main) place of business, a legal entity has the nationality of the state on whose territory it conducts its main economic activity (legislation of Italy, Algeria and many other developing countries);

d) according to the theory of control, a legal entity has the nationality of the state from whose territory its activities are controlled and managed (primarily through financing). This theory is enshrined in the legislation of the vast majority of developing countries and in international law (Washington Convention on the Procedure for Settling Investment Disputes between the State and Foreign Persons of 1965, the 1994 Treaty to the Energy Charter).

In the legislation of most states, a combination of various criteria is used to determine the personal law of legal entities (Great Britain and the United States - the theory of incorporation and control, India - incorporation and effective place of activity, Hungary - incorporation and settlement). The personal law of the company determines its personal status (legal personality of the company). In Russian law, the concept of a personal statute of a legal entity is defined in paragraph 2 of Art. 1202 GK. Russia is one of the few countries in the world whose law establishes only one criterion for determining the personal law of a legal entity - the criterion of incorporation (paragraph 1 of article 1202 of the Civil Code).

3. The law of location. This is one of the oldest conflict bindings, which determines the property-law statute of a legal relationship (Article 1205 of the Civil Code). In modern law, there is a tendency to change the scope of this attachment formula (previously it was applied mainly to real estate, at present - to movable property). From the point of view of modern world practice, the law of the location of a thing determines the legal status of both movable and immovable things (paragraph 2 of article 1205 of the Civil Code). Exceptions to this rule: if property rights fully arose in the territory of one state, and the thing was subsequently transferred to the territory of another, then the very emergence of the right of ownership is determined by the law of the place where the property was acquired, and not by the law of its real location; the legal status of things entered in the state register is determined by the law of this particular state, regardless of the real location of the thing (Article 1207 of the Civil Code).

The moment of transfer of ownership and the risk of accidental loss of a thing is fundamentally different in the legislation of different states. In modern law, it is customary to separate the moment of transfer of ownership from the moment of transfer of the risk of accidental loss of a thing. In PIL, in principle, there is a tendency to narrow the application of the proprietary statute by expanding the personal and obligations.

In a special manner, the property law statute of movable things in the process of international transportation (“cargo in transit”) is determined: to resolve this issue, the law of the country of the place of departure of the cargo, the place of destination of the cargo, and the location of the documents of title are applied (clause 2 of article 1206 GK).

The legal status of things acquired by virtue of acquisitive prescription is governed by the law of the country where the property was located at the time of the end of the acquisitive prescription (clause 3, article 1206 of the Civil Code).

It is possible to apply the autonomy of will to a contract in relation to immovable property. The parties are free to choose the applicable law, regardless of where exactly the property is located. This provision is a novelty of modern PIL and is associated with the expansion of the application of the autonomy of the will to all contractual relations. There is a similar provision in Russian law (Article 1213 of the Civil Code).

4. The law of the country of the seller. This is a general subsidiary conflict binding of all foreign trade transactions. The law of the country of the seller is understood in a broad and narrow sense. Understanding in a narrow sense means the application to the contract of sale of the law of the state in whose territory the place of residence or the main place of activity of the seller is located.

The law of the country of the seller in a broad sense means that the law of the state in whose territory the domicile or principal place of business of the party who performs the performance, which is decisive for the content of the contract, is located. The central party in the contract of sale is the seller. The purchase and sale transaction is the main foreign trade transaction. All other foreign trade transactions are constructed according to the sales contract model, respectively, the central party in other transactions is determined by analogy "the seller is the central party in the sales contract."

It is this interpretation and application of the seller's law that is enshrined in Art. 1211 of the Civil Code: in the absence of a choice of law by the parties to the contract, the law of the central party to the transaction is applied. In addition to the purchase and sale transaction, the norm defines the central party for another 18 types of foreign trade transactions, for example, in a pledge agreement, the central party is the law of the pledgor's country.

5. The law of the place of the act. This is a generic binding of the obligation statute of a legal relationship, which involves the application of the law of the state on whose territory the private law act was committed. The conflict principle, the law of the place where the act was performed, has a general character. The classic case of applying this formula in a generalized form is the resolution of a conflict of laws related to the form of a private legal act. The generally accepted position is that the form of a foreign trade transaction is subject to the law of the state on whose territory it is concluded. A special case of understanding the law of the place of the act is a special conflict binding, the law of the form of the act, based on the original general principle of law: the place governs the act. The form of any official legal act is governed exclusively by the law of the state in whose territory this act takes place. This provision is mandatory, therefore, the possibility of using a foreign form of official documents is absolutely excluded.

As a general rule, the law of the place of the act governs the formal statute of the legal relationship, that is, the procedure for signing and the form of the transaction. This provision is enshrined in Art. 1209 GK. However, the provisions of Russian legislation on this issue have a peculiar character. If, by the law of the place where the transaction was made, it is invalid in terms of form, such a transaction cannot be considered invalid in the Russian Federation if it complies with the requirements of Russian law. This norm has an imperative character, which only exacerbates the vices of such an approach. Article 1209 of the Civil Code is a source of "limping" relations: in Russia, a legal relationship gives rise to legal consequences, but in the state in whose territory it arose, it does not. In addition, paragraph 2 of Art. 1209 of the Civil Code establishes the primacy of Russian law in regulating the formal status of a transaction in which a Russian legal entity is a party. The form of such a transaction is subject to Russian law, regardless of the place of its execution.

The main types of the general formula for attaching the law of the place where the act was performed are the law of the place where the contract was concluded and the law of the place where the obligation was performed. These attachment formulas have a subsidiary character in relation to the autonomy of the will of the parties in regulating the issues of the statute of obligations. They apply only in the absence of an agreement between the parties on the choice of law (a mandatory statute is defined in Article 1215 of the Civil Code).

The law of the place where the contract was concluded (completed) governs the obligations of the parties arising from private law contracts. The trend of modern practice is the rejection of the application of this attachment formula due to the wide distribution of contracts between the absent. In addition, the concept of the place of concluding a contract in the continental and Anglo-American legal systems is fundamentally different. In common law, the "letterbox theory" applies: the place where the transaction is made is the place where the acceptance is sent. In continental law (and in the Vienna Convention on the International Sale of Goods of 1980) the "doctrine of receipt" is enshrined: the place of conclusion of the transaction is the place of receipt of the acceptance. Such positions are absolutely incompatible and lead to the fact that, from the point of view of different legal systems, the contract simultaneously has two places of conclusion (the place where the acceptance was sent and the place where it was received).

The law of the place of performance of an obligation is considered one of the best options for regulating issues of the statute of obligations. In relation to the autonomy of the will of the parties, this conflict binding has a generally recognized subsidiary character. The law of the place of performance of an obligation can be understood in a broad and narrow sense. The understanding of this conflict of laws binding in a broad sense is enshrined in the legislation of Germany and Turkey (for example, in accordance with the Turkish Law on Private International Law and Procedure of 1982, the law of the place of performance of the contract is applied if the parties have not expressed autonomy of will, in several places of execution, the law of the place of performance of the action that is the center of gravity of the obligation relationship applies; similar provisions are contained in the Introductory Law of 1986 to the GGU).

In the law of the vast majority of states, a narrower interpretation of the place of performance of an obligation is adopted - this is the place of actual delivery of goods, documents of title or place of payment. This attachment formula is used to solve a whole range of issues: the procedure for the delivery of goods (the form of acceptance certificates, the date and exact time of the transfer of goods), the procedure for making a payment (the form and content of the relevant payment documents).

6. The law of the place where the offense (delict) was committed. This is one of the oldest conflict bindings used to regulate tort obligations and determine the tort statute of a legal relationship (Article 1220 of the Civil Code). The issues of the tort statute in the law of different states have a fundamentally different solution - a different age of tort, grounds for liability, its limitation and exemption from it, methods of compensation for harm, the amount and amount of compensation. Moreover, there are significant differences in the understanding of the place where the offense was committed: it is the place where the harmful act was committed (Italy, Greece); place of occurrence of harmful consequences (France, USA - the concept of "acquired rights"); a combination of both principles is possible (FRG).

Currently, the law of the place where the tort was committed is assessed as a "hard" conflict binding, and in the law of all states there is a tendency to abandon its application. The main principle of the modern resolution of tort obligations is the possibility of choosing the legislation that is most favorable for the victim (at the initiative of the court or the victim himself). The options are quite numerous: the law of the place where the harmful act was committed, the law of the place where the harmful consequences occurred, the personal law (citizenship or domicile) of the victim or deliquent, the law of common citizenship or common domicile, the law of the court. This principle is enshrined in Russian law - the provisions of Art. 1219 of the Civil Code establishes a "chain" of conflict of laws rules, which makes it possible to apply a system of "flexible" regulation of tort relations.

7. The Law of the Currency of Debt. This is a special conflict binding for resolving issues that arise regarding the content of monetary obligations. This attachment formula was developed in German doctrine and practice and is a problematic, not generally recognized conflict binding. In Russian law, for example, there is no such link.

The essence of the currency peg is as follows: if a transaction is concluded in a certain foreign currency, then in all currency matters it is subject to the legal order of the state to which this currency belongs. This provision is based on the recognition of the extraterritorial effect of national laws aimed at changing the monetary units of the state. In addition, the law of the debt currency can be used to localize the contract, establishing its closest connection with the law of a particular state.

8. Court law. This is a binding of a unilateral conflict of laws rule, meaning the application of exclusively local law, the law of the state whose court is considering the case. The necessary conflict issue is resolved by the court in favor of the law of the state in whose territory the private law dispute is being considered (Article 424 of the CTM). The application of the law of the country of the court is enshrined in all conflict rules of the Federal Civil Code. In the practice of English courts, the resolution of a dispute on the basis of the law of the court is the general rule, while the application of foreign law is an exception. In domestic legislation, there is a tendency to replace the term "law of the court" with the expression "Russian law".

Reference to the law of the court is extremely attractive for law enforcement agencies of all states, it allows you to legally apply local law, which greatly simplifies and speeds up the process (there is no need to establish the content of foreign law, the specifics of its application and interpretation). In principle, the law of the country of the court is quite applicable to any type of PPO and can act as an alternative to all other attachment formulas. The legislation of most states provides that, if it is not possible "within a reasonable time" to establish the content of foreign law, the court decides the case on the basis of its national law. However, the application of the law of the court does not actually take into account the presence of a foreign element in the legal relationship and may lead to a distortion of its content.

In modern practice and doctrine, it is generally recognized that the law of the court is a "hard" conflict binding, one should strive for the maximum possible rejection of its application. The generally recognized scope of the law of the court is IHL. From the standpoint of the classical understanding, the law of the court in IHL is not a conflict of law rule, but one of the main procedural principles (application by the court only of its own procedural law).

9. Flag law. This conflict principle is a transformation of the "personal law" binding in relation to aircraft and watercraft and space objects. The legal status of such objects is governed by the law of the State whose flag is flown by the aircraft or vessel. The main scope of the flag law is international maritime and air transport, merchant shipping and seafaring. In the KTM, a large number of norms are built on the basis of this conflict of laws, for example: the right of ownership and other real rights to sea vessels (Article 415), the legal status of crew members (Article 416), the right to property located on a sunken ship on the high seas (Article 417), limits of liability of the shipowner (Article 426).

10. The law chosen by the parties to the legal relationship (autonomy of will, the right to choose the law by the parties, a clause on the applicable law). This is the main conflict binding for all contractual obligations (foreign trade transactions, transportation contract, marriage contract, labor contract). Throughout the world, the autonomy of the will is considered the most "flexible" conflict norm. The autonomy of the will implies the dis-positive nature of the conflict of laws, the maximum freedom of the parties to choose a model of behavior (including regarding the choice of legislation).

The autonomy of will applies only to the obligatory statute of a legal relationship. In the legislation of many countries (USA, Scandinavian countries, Germany), the territorial limits of the autonomy of the will are limited. The parties can make a choice in favor of only the legal system with which the legal relationship is actually connected. Most countries provide for the possibility of an unlimited choice of law by the parties, even the choice of the law of a "neutral" state (with which the transaction is not connected in any way) is welcomed. It is presumed that the choice of such a right a priori puts the parties in an equal position. Such a position is enshrined in Russian legislation (Article 1210 of the Civil Code).

The applicable law clause can be expressly expressed (expressis verbis) in the contract. However, the parties rarely make an express reservation about the applicable law. No one knows in advance where, when and for what reason a dispute will arise from the contract, therefore it is more functional to choose the applicable law after the dispute has arisen. But, if a dispute has arisen, it is quite difficult for the parties to come to an agreement on the choice of legislation. That is why most foreign trade contracts do not contain a clause on the applicable law. If there is no agreement between the parties on the applicable law in the contract, the court itself determines which law should govern this relationship. This issue is resolved differently in Russian (Articles 1211, 1213 of the Civil Code) and Western law.

In the absence of an agreement between the parties on the applicable law, the Russian court resolves the dispute on the basis of the provisions of Art. 1211 GK. The law of the country with which the contract is most closely connected shall apply to the contract. The law of the country with which the contract is most closely connected is the law of the state on whose territory the place of residence or the main place of activity of the central party of the legal relationship is located, i.e. the counterparty, whose performance is decisive for the content of the contract. In Art. 1211 of the Civil Code, 26 varieties of civil law contracts are listed, and for each, the applicable law is determined, which is established based on the criterion of a real connection. Conflict issue in relation to contracts not listed in Art. 1211, solved by analogy (an analogy of the law).

In the courts of Western states (Great Britain, France, Austria, USA), in the absence of a clause on the applicable law in the contract, the "hypothetical", "implied" will of the parties is established, i.e. the court itself determines which law the parties would like to apply to the disputed relationship. To establish the "implied will of the parties", the criteria of "contract localization" are used; "justice", "kind, caring owner", "reasonable person"; close, real, reasonable connection of the applicable law with a specific actual composition. In Western doctrine and practice, a whole theory of presumptions has been developed: whoever chose the court (arbitration), he chose the law; reasonable communication; the law inherent in this agreement; common citizenship or domicile.

New attachment formulas in modern law (derived from the "implied" will of the parties) - the law with which the relation is most closely connected (the principle of real connection); the law that applies to the essence of the relationship (own law of the contract).

These attachment formulas are also used in Russian law. Understanding the principle of the closest connection in Russian legislation is defined in paragraph 2 of Art. 1186, Art. 1188, paragraphs 1, 2, 5 of Art. 1211, paragraph 1 of Art. 1213 GK. Unfortunately, the domestic legislator failed to develop a single definition of the criterion of the closest connection. For example, a fundamentally different understanding of this category is established in paragraphs 2 and 5 of Art. 1211 and paragraph 1 of Art. 1213 GK. The criterion of the closest connection in foreign law is determined in accordance with the theory of presumption.

The law of the essence of the relationship (the law of reason, the proper law of the contract) involves the application of the law that regulates the basis of the legal relationship. This criterion is formulated in Russian legislation as follows: the law to be applied to the relevant relation (Articles 1208, 1218 of the Civil Code). Such norms are usually called "rubber" - extensible, suggesting different interpretations and the widest freedom of judicial discretion. "Rubber" norms have long been characteristic of Western law, and thanks to centuries of judicial practice, they have a fairly definite content. In Russia, there is no judicial practice of applying such norms, and it is practically impossible to use them in courts without additional clarifications and interpretations.

3.5. Modern problems of conflict of law

The modern main feature of the development of conflict bindings is the desire to abandon "hard" conflict rules based on one criterion for choosing law. To choose the law on one issue, not just one, but a whole system of interrelated conflict of laws rules ("chains" of conflict of laws rules) is used - for example, Art. 1199 GK. The main way to choose the law is to apply flexible rules that allow taking into account all the specific circumstances of the case. The legal relationship is divided into statutes, and each statute has independent conflict regulation. In one actual legal relationship, there is a whole system of various statutes: personal, property law, obligation, formal, tort, currency, hereditary, marriage, etc. When dividing the legal relationship into statutes, an independent law is applied to each individual statute - the law of the state with which this part of the relationship is most closely related. This method of legal regulation involves the use, first of all, of the criterion of the closest connection and the principle of the essence of the relationship.

Not in all cases, the legal relationship with a foreign element is subject to the same legal order. Very often, the main issue (the essence of the relationship - the rights and obligations of the parties) is tied to the law of one state, and the special issues of the same relationship (capacity, form of transaction) are tied to the law of another (other) state. This phenomenon in PIL is called "multiplicity of conflict bindings", which manifests itself in the following variants.

1. The cumulation (combination) of conflict bindings leads to the need to take into account the decisions of several different legal systems when regulating one legal relationship. Cumulative conflict bindings involve the simultaneous application of different legal systems: for example, marriage - the form and procedure are determined by the law of the place of marriage, and the internal conditions for marriage (marital capacity, obstacles to marriage) - by the personal law of each of the spouses (Article 156 of the UK ).

2. In the case of a splitting of the conflict norm, the legal relationship as a whole is subject to one legal order, and its individual issues to another. For example, inheritance relations are generally subject to the personal law of the testator (the law of the last usual place of residence of the testator), and the inheritance of real estate involves a separate conflict of law regulation: in accordance with the law of the location of the immovable part of the inherited property (Article 1224 of the Civil Code).

3. Alternative conflict rules make it possible to recognize a relation as valid if it satisfies the requirements of either one or another legal order, directly specified in this rule (Articles 419, 420 of the CTM). The plurality of conflict bindings takes place both in simple and in complex subordinate alternative conflict rules (Articles 1211, 1213 of the Civil Code).

The phenomenon of their independence should be distinguished from the multiplicity of conflict bindings. The independence of conflict regulation is found primarily in accessory obligations. Modern practice and doctrine adhere to the position that the conflict of laws issues of pledge and surety agreements have independent legal regulation, are subject to the right of the pledgor or guarantor, while the main obligation is subject to a different legal order (as a rule, chosen by the parties to the legal relationship).

Reciprocity is one of the special principles of PIL. In conflict law, there is a special concept of conflict reciprocity, which differs significantly from material and formal. Conflict reciprocity is the mutual application of law, i.e. the court of one state applies the law of another state only on the condition that the foreign court behaves in exactly the same way. As a general rule, when considering private law disputes with a foreign element, conflict reciprocity should not be taken into account. Foreign law is enforceable in national courts, whether or not the law of that state is applied abroad, because such application is prescribed by national conflict of laws rules and not by conflict of law reciprocity. An exception to this rule - the mutual application of law - is directly stipulated in the law. In the legislation of most states, the presumption of the existence of conflict reciprocity is enshrined (its presence is assumed, but the absence must be proven). This is precisely the provision set out in Art. 1189 GK.

3.6. Qualification of the conflict rule, its interpretation and application

The application of any legal norm is impossible without its interpretation: the establishment of its meaning and connection with the actual circumstances in which the norm should be applied. Specific methods and rules of interpretation may vary, but in any case they must comply with the legal system of the state whose legal norm is being interpreted and applied. The results of interpretation should not contradict the main goals and principles of law and its normative prescriptions.

Similarly, the interpretation of the conflict rule accompanies its application. A conflict rule, like any other rule of law, consists of various legal terms and conceptual structures. Legal concepts are the basis of both volumes and bindings of conflict rules. However, the interpretation, or legal qualification, of a conflict of law rule differs significantly from the interpretation of other rules of law. The main difference is that the actual circumstances under which the conflict rule should be applied are in the legal field of different states. A conflict rule connects national law with foreign law, therefore the problem of qualification comes down to the point of view of the law of which state it is necessary to interpret the legal categories contained in the conflict rule itself.

In PIL there is a theory of "qualifications conflict" based on the problem of qualification of conflict rules. The conflict of qualifications of conflict rules is due to the fact that in the law of different states textually the same legal concepts (capacity, form of transaction, personal law, place of conclusion of the transaction) have fundamentally different content. The conflict of qualifications should be distinguished from the conflict of jurisdictions - the problem of choosing a competent court (one of the most difficult problems of IHL).

The problem of qualifying conflict legal concepts exists only at the stage of choosing the law, when resolving the conflict issue and applying domestic conflict rules (primary qualification). All the difficulties are connected precisely with the fact that the applicable law has not yet been chosen. After choosing a competent legal order, this problem no longer exists. The interpretation of the chosen foreign law (secondary qualification) is carried out only in accordance with the provisions of this law.

In the PIL doctrine, the following theories for resolving the conflict of qualifications have been developed.

1. Qualification under the law of the court (i.e., under the national law of the state whose law enforcement authority is considering the case). This is the most common way to resolve a conflict of qualifications. A conflict rule, as a rule of national law, uses national legal categories that are specific to this particular legal system. The entire legal terminological construction of a conflict rule has the same content as the rule of substantive private law of a given state. Since the conflict issue is resolved on the basis of the conflict law of the country of the court, then the qualification of conflict concepts should be carried out precisely according to the law of the court.

The main drawback of qualification under the law of the court is a complete disregard for the fact that the legal relationship is connected with the territory of other states and that the conflict issue can be resolved in favor of the choice of foreign law. However, qualification according to the law of the court means primary qualification - the qualification of only conflict concepts. Primary qualification, qualification of the domestic conflict of laws rule can only be carried out according to the law of the court (clause 1 of article 1187 of the Civil Code).

2. Qualification under the law of the state with which the relation is most closely connected (by the right of the essence of the relation). This method of qualification avoids the main shortcomings of qualification according to the law of the court - foreign legal concepts are qualified in their "native" legal categories. However, qualification under foreign law is, as a rule, a secondary qualification, which takes place after the choice of law, when the conflict issue is resolved in favor of the application of foreign law. Therefore, in essence, here we are no longer talking about the qualification of conflict concepts, but about the qualification of legal categories of substantive private law. Undoubtedly, when resolving a conflict issue in favor of foreign law, all substantive legal concepts should be determined precisely in its national categories.

The most difficult problem is the need to apply foreign conflict of law concepts at the stage of choice of law, even before resolving the conflict issue. The possibility of primary qualification under foreign law follows if all the factual circumstances are related to the law of one state, and the case for any reason is considered in a court of another state. In addition, legal concepts that require qualification and are related to the actual circumstances of the legal relationship may, in principle, be unknown to local law (for example, the concept of "widow's share" in Russian law) or known in a different terminological designation and with a different content (paragraph 2 of Art. 1187 GK).

2. The theory of "autonomous" qualification is based on the fact that the conflict rule, national in nature, links domestic law with foreign law, and this circumstance cannot be ignored. To play the role of a link between the legal orders of different states, the conflict rule must use concepts common to all legal systems, which are established with the help of comparative law and generalization of homogeneous civilistic concepts. Both in the foreign and in the domestic PIL doctrine, the point of view is expressed that the scope of the conflict rule should use legal concepts common to all legal systems, and the qualification of the legal categories of conflict binding should be carried out in accordance with the law of the court.

The idea of ​​creating conflict rules, consisting of legal concepts common to most legal systems, has a positive character. It is these conflict rules that could perform their function of choosing the competent law in the best possible way. The problem is where to find such generalized concepts? Their development is the task of comparative law. However, an even more complex problem immediately arises: who exactly should conduct a comparative analysis of the law of different states and establish legal concepts common to all? Comparative analysis is a task of doctrine, the conclusions of which are not legally binding on the court. Only the court decides the conflict issue and determines the applicable law.

Legally, it is the judge in the process of law enforcement that has the right to make a comparative analysis of the law of those states with which this relationship is associated, to single out legal categories common to all and, on their basis, to apply the domestic conflict of laws rule. But is it possible in principle to oblige a judge to engage in comparative law in every case of considering cases with a foreign element? In addition, a comparative analysis made by a particular judge is his private, subjective opinion, which may be completely opposite to the opinion of another judge in a similar case. In the light of the foregoing, we can draw an unambiguous conclusion: at present it is difficult to talk about the possibility of the practical implementation of autonomous qualification.

To date, autonomous qualification as a way of interpreting conflict rules cannot be the basis for the activities of national law enforcement agencies. However, from the point of view of future law, this theory should be given special attention, since the general concepts that should underlie conflict rules certainly exist and need to be established. The main way to define and create such concepts is the unification and harmonization of conflict and substantive law.

Closely related to the conflict of qualification are the problems of definition, interpretation and application of legal norms. If the conflict issue is resolved in favor of the application of foreign law, then the generally recognized 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. The practical implementation of this rule is perhaps the greatest difficulty in PIL. It is not clear to what extent a court of one state, knowing and applying ex officio (ex officio) only its own national law, is able to interpret and apply foreign law in the same way as a court of the corresponding foreign state would apply it.

This problem is exacerbated by the fact that the understanding of foreign law in the continental and Anglo-American systems of law is fundamentally different. Continental law (including Russian) is based on the unequivocal point of view that foreign law is understood precisely as law, as a system of legal, mandatory orders of a state-imperious nature and should be accepted as something given, not subject to proof along with other factual circumstances of the case. In Anglo-American law, the opposite position prevails: foreign law is not considered law, a system of legally binding norms, but is considered only as a fact to be proved along with other factual circumstances.

In this regard, a serious problem arises. To what extent, for example, is a French or German judge able to take the point of view of an English or American judge? It is also necessary to take into account the different legal mentality in the countries of Western Europe, the states of the former USSR, in the countries of Asia, Africa and Latin America. It is very difficult to imagine that a judge of one state can really be imbued with the legal consciousness of a foreign judge and take his point of view.

Problems of definition, interpretation and application of foreign legal norms in Russian legislation are resolved in accordance with Art. 1191 GK, art. 166 UK, Art. 14 APK. The provisions on establishing the content of the norms of foreign law are among the most successful in the Russian PIL. The content of the norms of foreign law is established by the Russian court ex officio in accordance with their official interpretation, practice of application and doctrine of the relevant foreign state. This position takes into account the specifics of the sources of foreign PIL. It is indirectly recognized that in other states the sources of PIL are not only legislation, but also judicial practice and doctrine.

Russian law also establishes a mechanism for establishing the content of foreign law - an appeal to the Ministry of Justice of the Russian Federation, other competent authorities in the Russian Federation and abroad, and the involvement of experts. The Russian court has the right to use the assistance of persons participating in the case, who can assist the court in establishing the content of foreign law. It must be emphasized that the assistance of the parties is their right, not their obligation. The burden of proving the content of foreign law may be placed on the parties only in disputes related to entrepreneurial activity. If, despite all the measures taken, the content of the norms of foreign law could not be established, the court applies Russian law (clause 3 of article 1191 of the Civil Code, clause 2 of article 166 of the UK).

3.7. Limits of application and effect of conflict rules

One of the main principles of PIL is that the application of foreign law must not violate the foundations of local law and order. National law, allowing the application of the law of other states on its territory, establishes the procedure and limits of its application. For these purposes, a special institution has been developed in PIL - a public policy clause, which is contained in the law of all states and is a generally recognized concept. In its most general form, a public policy clause can be defined as follows: a foreign law chosen on the basis of a domestic conflict of laws rule is not applied and subjective rights arising on its basis are not recognized if such application or such recognition is contrary to the public policy of this state.

The first statute to contain a public policy clause is the FCC. In Art. 6 of the Federal Civil Code stipulates that it is not possible, through private agreements, to abrogate the operation of laws in the observance of which public order and good morals are interested. This wording is called a public policy clause in the positive version (Article 24 of the Civil Code of Algeria). Currently, the legislation of the vast majority of states (Switzerland, Poland, Germany, the Russian Federation, etc.) has adopted a negative version of the public policy clause. For example, according to Art. 5 of the Austrian Private International Law Act, a rule of a foreign law shall not apply if its application may lead to consequences incompatible with the basic principles of the Austrian legal order.

Russian law uses the negative version of the public policy clause. Quite similar terminology is used in various legislative acts: the fundamentals of law and order (public order) of the Russian Federation (Article 1193 of the Civil Code, Art. 167 of the UK), public order of the Russian Federation (Article 244 of the APC), sovereignty, security and public order of the Russian Federation (Article 412 of the Code of Civil Procedure ).

The legislation of all states is based on a single point of view. The application of a foreign legal rule may be refused if the consequences of its application are incompatible with the public policy of that State. It is inadmissible to assert that the law of one state contradicts the law of another state. The national public order may be contradicted not by the foreign law itself as a whole (as an integral legal system), but only by the consequences of the application of its norms. In modern law, it is also considered unlawful to refuse to apply foreign law only on the grounds that the corresponding state has a fundamentally different political, economic or legal system (paragraph 2 of article 1193 of the Civil Code).

There is no definition of the category "public order" in any legislative act. The doctrine constantly emphasizes the uncertainty and even indeterminacy (FRG) of this concept. Modern jurisprudence constantly attempts to define the category of "public order" by listing the norms that have a super-imperative character in national law and form the basis of its legal order:

1) fundamental, fundamental principles of national public law (primarily constitutional, criminal and administrative);

2) generally recognized principles of morality and justice, on which the national legal order is based; national consciousness of society;

3) the legitimate rights and interests of individuals and legal entities, society and the state, the protection of which is the main task of the legal system of each country;

4) generally recognized principles and norms of international law (including international legal standards for the protection of human rights), which are part of the legal systems of most states and have primacy over the operation of national law.

This enumeration is not exhaustive, closed. The public policy clause is a fairly "rubber" category and can in fact be used to deny the application of foreign law, even if the consequences of its application do not contradict the foundations of the national legal order. In this regard, in the doctrine, the reference to public policy is regarded as a legal pathology, an anomaly and can only be applied in exceptional cases. In international law, it is established that the court has the right to resort to a public policy clause if the application of foreign law is clearly incompatible with the national legal order (Article 12 of the Rome Convention on the Law Applicable to Contractual Obligations, 1986).

At present, in the legislation of most states (Switzerland, Germany), similar norms are fixed in parallel - a public policy clause in negative and positive versions. This trend is a novelty in PIL and is due to the fact that in any legal system there is a special range of imperative rules that are not part of public policy, but must always be applied, even if the national conflict of laws refers to a foreign legal system. The provision on the obligatory application of the mandatory norms of the national law is a positive version of the public policy clause.

The initial and generally recognized position of this practice is that in any national legal system there are imperative rules (not related to the rules of public policy) that must always be applied, regardless of whether the conflict of laws is resolved in favor of the application of the law of which state. However, problems immediately arise: what is the range of such norms; Is it necessary to observe only national imperative norms or also the imperative norms of the law of the state with which the relationship is most closely connected, etc.?

In Russian law, the provision on the application of peremptory norms (public order clause in the positive version) is enshrined in paragraph 1 of Art. 1192 GK. Certain imperative norms of Russian law are always applied, regardless of the resolution of the conflict issue. The legislator tried to define the range of such norms: imperative norms, which directly indicate the obligation of their application (clause 2 of article 1209 of the Civil Code); norms that are of particular importance for ensuring the rights and legally protected interests of participants in civil circulation. It seems that we are talking specifically about the imperative norms of civil law (primarily), family and labor law, public norms with a private law effect, but not about the imperative norms of public law, which are included in the category of public order.

In domestic law, the need to take into account the imperative norms of foreign law is also fixed (paragraph 2 of article 1192 of the Civil Code). When applying the law of another state, the Russian court may take into account the mandatory rules of law of another foreign state with which the relationship is most closely connected.

3.8. The theory of references in private international law

One of the most difficult problems of PIL is the problem of "hidden collisions". It is these collisions that are the main cause of the conflict of qualifications. In this situation, not material, but conflict-of-law norms of the law of different states collide. Hidden collisions are usually called "collisions of collisions", i.e., a collision of precisely conflict principles. Such conflicts arise when the same term is applied to essentially different phenomena (for example, the personal law of an individual is understood in different countries either as the law of the state of citizenship or as the law of domicile). Hidden collisions (collisions of collisions) can have both positive and negative forms. Positive collisions of collisions appear when two or more legal orders simultaneously claim to regulate the same relationship. Negative conflicts of conflicts occur when none of the possibly applicable legal orders agrees to govern the disputed legal relationship.

Hidden collisions underlie the theory of references: backward reference and reference to the third law (renvoi of the first and second degrees). Reverse reference means that the foreign law chosen on the basis of the conflict norm of the country of the court refuses to regulate the disputed relationship and refers back to the law of the court (reference of the first degree). A reference to a third law takes place in the case when the chosen foreign legal order does not contain material regulation of this relationship, but prescribes the application of the law of a third state (reference of the second degree). Hypothetically, further references to the law of the fourth, fifth, etc. states are also possible. The reasons for the appearance of references are not only hidden conflicts, but also the very nature of the conflict rule: it is an abstract, general rule that refers to the foreign legal order as a whole, to the foreign legal system in general, including not only substantive, but also conflict law. Negative collisions of collisions are the immediate cause of the occurrence of ots^1lok.

The theory of offsets appeared in PIL in the 1th century. The doctrine of law of almost all states adheres to a single position. The theory of references is one of the most difficult problems of modern PIL. The problem of references has a fundamentally different legal regulation in the legislation of different countries. Depending on the features of this regulation, the following solutions can be distinguished:

1) states that provide for the application of the entire system of references in full (including references of the third, fourth, etc. degrees, until the law providing for the substantive regulation of the disputed relationship is revealed), - Austria, Poland, Finland, the states of the former Yugoslavia ;

2) states whose law provides for the possibility of using references of the first and second degree, but such a possibility is stipulated by some fundamental conditions - Mexico, the Czech Republic, Germany;

3) states that provide for the possibility of using only a return reference (reference to their own law) - Hungary, Venezuela, Vietnam, Spain, Iran, Romania, Japan;

4) states that provide for the possibility of using references of the first and second degree or only reverse reference in cases specifically stipulated in the law - Italy, Portugal, Switzerland, Sweden, Russia;

5) states whose legislation completely prohibits the use of references - Brazil, Greece, Peru, Egypt;

6) states whose legislation, in principle, does not contain regulation of this issue - Algeria, Argentina, Bulgaria, China.

Most of the countries of the world either in legislation or in judicial practice (Great Britain, USA) apply the theory of references, but apply it to a limited extent. Most often, states recognize only the reverse reference, refusing to apply the reference to the law of a third state. The reason for this state of affairs is practical expediency: legally based reference (as prescribed by national and foreign conflict of law laws) allows the court to apply its own law, which greatly simplifies the dispute resolution process. The return reference, in essence, is a legal and technical opportunity to refuse the application of foreign law. Referring to the law of a third state does not provide such an opportunity, but, on the contrary, seriously complicates the process of choosing a competent legal order.

The institution of references is one of the most important and complex problems, therefore, it is necessary to unify the rules on references at the international level. The Hague Convention on the Regulation of Conflicts between National and Domicile Laws of 1995 is one of the attempts to resolve the problem of "hidden" conflicts in the attachment formula "personal law". This attempt was not successful. The Convention has not entered into force and has not had a significant impact on national legislation.

In domestic legislation, it is established that any reference to foreign law is considered as a reference to substantive, and not to conflict of laws (clause 1, article 1 of the Civil Code). An exception - the reverse reference of foreign law can be applied in cases of reference to Russian law, which determines the legal status of individuals (clause 1190 of article 2 of the Civil Code). Thus, the Civil Code recognizes only first-degree referral in cases strictly defined by law. It seems that this norm should be interpreted as dispositive, since the refusal to recognize a reference to the law of a third state contradicts some of the international obligations of the Russian Federation.

The law and practice of all states contain a general exception to the application of derogations: they are not applicable in treaty obligations. The reason for such an establishment is that the general general conflict binding of contractual obligations is the autonomy of the will of the parties. The theory of reference is incompatible with the autonomy of the will, since the parties, when choosing the law, have in mind precisely the specific substantive legal regulation. The application of ot ^ 1lok is capable of perverting the autonomy of the will, since the establishment of a conflict of law may predetermine the application of the law of a completely different state, which does not correspond to the intentions of the parties. This rule is enshrined in international law (The Hague Convention on the Law Applicable to Contracts for the International Sale of Goods, 1) and in national laws (Introductory Law to the GGU).

3.9. Establishing the content of foreign law

The process of regulating PPOs with a foreign element consists of two stages. The first stage is the solution of the conflict issue and the choice of the applicable law on the basis of the provisions of the conflict of laws rule of the law of the country of the court. The second stage is the direct application of the chosen law. If foreign law is recognized as competent, the emergence of specific problems is inevitable: the definition of general concepts of the law of another state; establishing its content; features of the interpretation and application of foreign law. General provision - the court is obliged to establish the content of foreign law ex officio (ex officio) in order to determine the legal basis for the future judgment.

The 1968 European Convention on Information on Foreign Law establishes a procedure and mechanism designed to facilitate courts' access to information on foreign law. The participating states are obliged to create special departments or independent departments under the ministries of justice that collect information on foreign and national law; responding to requests from relevant foreign and national authorities on the content of national and foreign law; sending requests to the competent authorities of foreign states on the content of the law of these states. For these purposes, a special Scientific Research Center for Legal Information under the Ministry of Foreign Affairs of Russia has been established in Russia.

The provisions of Russian legislation on the procedure and methods for establishing the content of foreign law are contained in the Civil Code, the Investigative Committee and the APC. The court, in accordance with its powers, is obliged to independently deal with the establishment of the content of foreign law. The mechanism of this process is a diplomatic procedure, official requests through the Ministry of Justice of Russia, direct communication between the courts of different states with each other and other competent authorities. The court establishes the content of the norms of foreign law in accordance with their official interpretation, practice of application and doctrine of the relevant state (paragraph 1 of article 1191 of the Civil Code). It is also necessary to take into account foreign judicial practice.

Russian courts have the right to apply with requests about the content of foreign law to the Ministry of Justice of Russia, to other competent authorities of the Russian Federation, to foreign competent authorities, to involve experts (paragraph 1, clause 2, article 1191 of the Civil Code). The persons participating in the case, on their own initiative, may provide Russian courts with information on the content of foreign law, relevant documents, otherwise assist the court in determining the content of applicable foreign law (paragraph 2, clause 2, article 1191 of the Civil Code).

The legislation enshrined the application of Russian law, despite the solution of the conflict issue in favor of foreign law, in cases where all the actions taken in accordance with the law did not help to establish the content of foreign law within a "reasonable" time frame (clause 3 of article 1191 of the Civil Code). The concept of "reasonable" terms is not defined by law. From the point of view of domestic doctrine, this is the time usually required to establish the content of the norms of foreign law.

Topic 4. SUBJECTS OF PRIVATE INTERNATIONAL LAW

4.1. The position of individuals in private international law, the definition of their civil legal capacity

The subjects of most NPOs with a foreign element are individuals. The PIL defines the following categories of individuals: foreign citizens, stateless persons, dual nationals, refugees. Foreign citizens are persons who have a legal connection with any state; dual nationals - persons who have a legal relationship with two or more states; stateless persons - persons who have no legal connection with any state; refugees - persons forced for certain reasons (specified in the law) to leave the territory of their state and received asylum in the territory of another. The legal status of bipatrides and stateless persons has serious specifics. In international law, it is assessed as a complicated status, an international legal pathology.

The main feature of the civil law status of foreign citizens is that they are in principle subject to two legal orders - the law and order of the state of residence and the law and order of the state of their citizenship. Their legal status is ambiguous.

In many foreign legal systems (France, Spain) there is a special branch of law - "the law of foreigners". The legislation of such states defines various categories of foreign citizens. The term "foreigner" generally includes dual nationals, stateless persons and refugees. Most national laws establish the principle of national treatment as applied to individuals (foreigners are equal in rights with the local population). The national regime is based on the principles of equality and equal rights.

Persons permanently or temporarily residing in the territory of a foreign state, of course, are obliged to comply with its laws and obey the local legal order. However, certain issues of the legal status of such persons are determined by their personal law. The concept of the personal law of individuals in Russian law is established in Art. 1195 GK. The general conflict binding of a personal law is the law of the state of citizenship, the subsidiary one is the law of the state of residence. The personal law of a foreign citizen is the law of the country whose citizenship this person has.

The personal law of persons with dual citizenship, one of which is Russian, is Russian law. The personal law of foreign citizens can also be Russian law if the foreigner has a place of residence in the Russian Federation (clause 3 of article 1195 of the Civil Code). The personal law of a stateless person is determined on the basis of the sign of domicile (clause 5 of article 1195 of the Civil Code). Such a rule is common to the legislation of most states, but this legal provision creates a problem. How to determine the personal law of a stateless person if he does not have a permanent place of residence? The law of domicile is also applied in determining the personal law of a bipatride (paragraph 4 of article 1195 of the Civil Code). The personal law of an individual with refugee status is the law of the country of asylum (clause 6, article 1195 of the Civil Code).

The civil legal capacity of individuals is the ability of an individual to have rights and obligations. In the law of most states, an imperative substantive legal norm is established. In the sphere of civil legal capacity, foreigners enjoy national treatment; however, certain issues of legal capacity have conflict regulation and are determined by the personal law of the individual.

In Russian law, the civil legal capacity of individuals is determined on the basis of their personal law (Article 1196 of the Civil Code). At the same time, foreign citizens and stateless persons enjoy civil rights in the Russian Federation equally with Russian citizens. Russian law establishes a combination of conflict of laws and substantive methods of regulating the civil legal capacity of foreign citizens and stateless persons. The provision of national treatment to these persons on the territory of the Russian Federation is established in the Constitution (part 3 of article 62). The application of conflict of law regulation - personal law - involves the recognition of foreign restrictions on legal capacity based on the verdict of a foreign court and not contrary to the public policy of the Russian Federation. Russian legislation also establishes other exceptions to the principle of national treatment (restrictions on the rights of foreigners to engage in certain activities, hold certain positions).

The civil legal capacity of Russian citizens abroad is determined in accordance with the legislation of the host state. The Russian state is obliged to protect the citizens of the Russian Federation abroad and provide them with patronage. If in any state there is an infringement of the rights of Russian citizens, then a decree of the Government of the Russian Federation may establish retaliatory restrictions (retortions) to citizens of the corresponding foreign state on the territory of the Russian Federation (Article 1194 of the Civil Code).

4.2. Civil capacity of natural persons in private international law

The civil capacity of an individual is his ability to exercise civil rights and obligations by his actions. The legislation of all countries establishes that an individual becomes fully capable in public and private law upon reaching the age established by law. The legislation also provides for the possibility of recognizing an individual as incapacitated or with limited legal capacity. The main aspects of the legal status of an individual associated with the category of civil capacity are the right of a person to a name (Article 1198 of the Civil Code), institutions of guardianship and guardianship, recognition of an individual as missing and declaring him dead. It is generally recognized that the issues of the civil capacity of individuals are subject to conflict regulation (general conflict binding is the personal law of an individual).

In Russian law, the civil capacity of individuals is determined by their personal law (Article 1197 of the Civil Code). To establish personal law (the law of the state of citizenship or domicile), Art. 1195 GK. Modern Russian legislation contains a novelty: an individual is not entitled to refer to his lack of legal capacity under his personal law, if such a person is legally capable under the law of the state where the transaction was made (clause 2 of article 1197 of the Civil Code). The reference of a foreigner to the lack of legal capacity under his personal law is taken into account as an exception if it is proved that the other party knew or should have known about the lack of legal capacity. This rule is connected with one of the general principles that have long prevailed in PIL: a person who is legally capable under his personal law is always recognized as legally capable abroad; a person who is incompetent under his personal law may be recognized as capable abroad.

Restriction of the legal capacity of individuals is carried out exclusively in court (Articles 22, 29, 30 of the Civil Code). As a general rule, an individual can be recognized as fully incapable or partially incapacitated only in his homeland in accordance with his personal law. However, quite often there are situations when such a decision is made by a court of another state (and in accordance with the law of the country of the court) in relation to a foreign citizen. In such cases, the problem arises of the recognition of a foreign judgment in the homeland of a foreigner (especially if the grounds for limiting legal capacity under the laws of these states do not coincide).

On the territory of the Russian Federation, the recognition of an individual as incapable or partially capable is subject to Russian law (clause 3 of article 1197 of the Civil Code). Foreigners in Russia may be subject to limited legal capacity, provided that the competent authorities of the state of nationality of such a person are notified of the grounds for the restriction of legal capacity and the consent of the state of nationality to legal proceedings in the Russian Federation. The grounds for limiting legal capacity must be the same under the laws of both states. In addition, foreigners who have a permanent place of residence on the territory of the Russian Federation may be subject to limited legal capacity in Russian courts on a general basis in accordance with Russian law (since the personal law of such persons is Russian law (clause 3 of article 1195 of the Civil Code)).

Basically, the issues of limiting the legal capacity of foreign citizens in the courts of another state are resolved in international treaties (the Bustamante Code, the Convention on Legal Assistance in Civil, Family and Criminal Matters of the CIS Countries of 1993, the Treaty on Legal Assistance between the Russian Federation and the Republic of Poland of 1996 and etc.). Almost all international agreements contain an additional conflict of laws link - "the law of the competent institution".

A very serious problem of modern PIL is the institute of missing persons and declaring missing persons dead. In international law, there are both multilateral (Convention on Declaring Dead Persons Missing, 1950) and bilateral agreements regulating this issue. In multilateral and bilateral legal aid treaties, conflict issues of missing persons are resolved on the basis of personal law or the law of the court. As a general rule, the courts of the state of nationality of the person against whom a case of missing person has been initiated are competent. In some cases expressly provided for in the contract, the court of another contracting party is competent (Article 23 of the Russian-Polish Treaty on Legal Assistance 1996, g.), and the applicable law is the law of the court.

Guardianship institutions are inextricably linked with the category of legal capacity. Guardianship is established over minors and incapacitated citizens (Article 32 of the Civil Code), and guardianship - over minors and citizens with limited legal capacity (Article 33 of the Civil Code). Conflict regulation of guardianship and guardianship is provided for in Art. 1199 GK. Establishment and cancellation of guardianship and guardianship are carried out in accordance with the personal law of the ward or ward. The personal law of a guardian (custodian) shall be applied to establish his obligation to accept guardianship (curatorship). The law of the competent institution determines the relationship between the guardian (custodian) and the ward (ward). The application of Russian law is legislatively fixed if it is most favorable for the ward (ward) who has a place of residence in the Russian Federation.

Article 1199 of the Civil Code contains a "chain" of conflict rules: certain aspects of the same legal relationship are regulated by various conflict bindings. The provisions of Art. 1199 Civil Code are among the most successful in the Russian MChP.

4.3. Legal status of legal entities in private international law

Considering the role that legal entities play in international economic relations, they are the main subjects of PIL. The specificity of the legal status and activities of legal entities is determined primarily by their state affiliation. It is the nationality (state affiliation) of legal entities that is the basis of their personal status. The concept of the personal statute of legal entities is known to the law of all states and is defined almost everywhere in a similar way: the status of an organization as a legal entity, its organizational and legal form and the content of legal capacity, the ability to meet its obligations, issues of internal relations, reorganization and liquidation (paragraph 2 of Art. 1202 GK). Legal entities are not entitled to refer to the restriction of the powers of their bodies or representatives to conclude a transaction, unknown to the law of the country of the place of the transaction, except in cases where it is proved that the other party knew or should have known about the specified limitation (Clause 3, Article 1202 of the Civil Code).

In all states, companies operating on their territory are divided into "domestic" and "foreign". If legal entities carry out business activities abroad, they are subject to two systems of legal regulation - the system of national law of the state of "citizenship" of this legal entity (personal law) and the system of national law of the state of the place of operation (territorial law). It is the conflict criterion "personal law" that ultimately determines the nationality (state affiliation) of legal entities. The personal law of legal entities can be understood in four ways:

1) the theory of incorporation - a legal entity belongs to the state on whose territory it is established (USA, Great Britain, Canada, Australia, Czech Republic, Slovakia, China, the Netherlands, the Russian Federation);

2) the theory (requirement) of settlement - a legal entity has the nationality of the state on whose territory the administrative center is located, the management of the company (France, Japan, Spain, Germany, Belgium, Ukraine, Poland);

3) the theory of the center of operation (place of main economic activity) - a legal entity has the nationality of the state on whose territory it conducts its main activity (Italy, India, Algeria);

4) theory of control - a legal entity has the nationality of the state from whose territory its activities are controlled (primarily through financing). The theory of control is defined as the dominant rule of conflict of law regulation of the personal status of legal entities in the law of most developing countries (Congo, Zaire). As a subsidiary conflict binding, this theory is used in the law of Great Britain, the USA, Sweden, and France.

Such a multi-variant understanding of the conflict principle "personal law of a legal entity" has a serious negative impact on the development of international economic relations. A different definition of the nationality of legal entities gives rise to the problems of "dual nationality", double taxation, the impossibility of declaring a company bankrupt or seizing its authorized capital. For example, a legal entity registered in Russia and carrying out its main production activities in Algeria will have a dual nationality: under Algerian law (in accordance with the theory of operation center), such a company is considered a person of Algerian law, and according to Russian (the theory of incorporation) - a person of Russian law . For both states, such a legal entity is considered "domestic", and therefore a tax resident. As a result, the problem of double taxation arises. If the company is registered in Algeria, and the place of its main production activity is Russia, then this legal entity is subject to Russian law from the point of view of Algeria, and Algerian law from the point of view of Russia. In such a case, the company is "foreign" in both states and, accordingly, does not have a tax domicile.

4.4. Specifics of the legal status of transnational companies

From national legal entities created on the basis of the law of one state, international legal entities that are created on the basis of an international treaty, interdepartmental agreement or the legislation of two or more states should be distinguished. Such companies are transnational associations, and their personal law cannot be the law of one state. Particular difficulties are associated with the definition of the personal law of TNCs. On the one hand, they are created under the law of a particular state, on the other hand, their subsidiaries and grandchildren operate as independent legal entities in other states. TNCs are international in nature not only in terms of activity, but also in terms of capital.

TNCs represent the most complex multi-stage vertical: the parent corporation (national legal entity), subsidiary holding (holding, joint-stock) companies (legal entities of the same or other states), grandchildren production companies (legal entities of third countries), great-grandchildren holding companies (legal entities of fourth countries), etc. The nationality of each "daughter", "granddaughter", "great-granddaughter", etc. is determined in accordance with the legislation of the state on whose territory such a unit operates. From a legal point of view, a TNC is a conglomerate of legal entities of various nationalities, managed from a single center (parent corporation) with the help of holding companies. A characteristic feature of TNCs is the discrepancy between the economic content of the legal form: the production unity is framed by legal plurality.

In the modern world, the activities of TNCs are global in nature (for example, Microsoft Corporation). It is possible to establish a single personal law for such an association only when using the theory of control (which is enshrined in the legislation of far from all states): according to the personal law of the parent company. At present, the concept of "TNC law" is widely used in doctrine and practice. This concept means the application to the establishment of personal law and the activities of such companies not of the national law of any state, but of international or "quasi-international" law, "general principles of law", "general principles of international law". This concept seems to be the most functional, especially since it is at the international level that the Code of Conduct for TNCs has been developed.

A specific type of transnational companies are offshore companies created in special offshore zones. An offshore zone is a country or territory whose national legislation provides for the possibility of registering legal entities engaged in international business and providing them with a preferential tax regime. Offshore zones are created in order to attract foreign investment and create jobs for their own population. The emergence and development of offshore business is associated primarily with tax planning. International tax planning is a legitimate way to reduce the tax burden in foreign economic activity and receive tax benefits. The meaning of registering a company in an offshore zone is to evade taxation in the "native" state (the country of the actual origin of the company).

One of the main features of an offshore is, on the one hand, an absolute ban for foreign companies on raising local capital and doing business in the country of registration, and on the other hand, the mandatory involvement of the local population in the management of such companies and the use of services of local law (registration) firms. In most offshore zones, there are special laws on companies that regulate the legal status of foreign companies registered offshore (for example, the British Virgin Islands - Ordinance on International Business Companies of 1984, the Law on Management of Companies of 1990, etc.). In many states, offshore companies are opposed to legal entities of national law (Great Britain, Cyprus, the Bahamas). Industrialized countries have a rather negative attitude towards the practice of using offshore centers by their national companies. In order to tighten control over the movement of capital across borders and limit the number of offshore companies, many countries have adopted anti-offshore legislation (USA, UK, France). Within the EU, all transactions with companies from offshore zones are mandatory checked and all deductions to offshore companies are subject to additional tax "at source". The process of combating offshore companies began in the mid-80s. 07.08.2001th century Russia adopted Federal Law No. 115-FZ dated XNUMX "On counteracting the legalization (laundering) of proceeds from crime and the financing of terrorism".

One of the main reasons for the fight against offshore companies is their use for laundering criminal capital. The attractiveness of offshore companies for illegal business is due to the preferential tax regime and the absolute degree of confidentiality in relation to capital exported from other states. The fight against laundering of criminal capital in offshores is carried out at the international level using the mechanism of international organizations - the OECD and FATF.

Offshore jurisdictions are divided into "respectable" (having anti-money laundering legislation and not allowing "dubious companies" on their territory - the Bahamas, Singapore, Luxenburg, Hong Kong, Switzerland) and "unrespectable" (there is no anti-money laundering legislation). money laundering - the islands of Jersey, Guernsey, Maine, Liberia). For example, in the Cayman Islands (a respectable jurisdiction), a Law has been passed, according to which the consent of the authorities of the state of nationality of a company is required for its registration as an offshore company, even if this company does not intend to engage in business activities in its "home" state.

In 2001, the FATF made a "black list" of countries that do not provide assistance in international investigations of money laundering cases. At the beginning of 2004 this list includes: Guatemala, Indonesia, Myanmar, Nauru, Nigeria, Cook Islands, Saint Vincent and the Grenadines, Ukraine, Philippines. Russia was removed from this list in October 2002.

4.5. The legal status of the state as a subject of private international law

The state is the main, universal subject of the WFP. However, legal relations with the participation of the state may also have a private law character. The state as the only sovereign subject of law has international public and private legal personality. Relations of a public law nature are more typical for the state, however, it has the right to enter into property and non-property civil legal relations, which, of course, have special specifics, since the state has the quality of a special subject of law. This quality is due to the fact that the state is not a legal entity, since it sovereignly and itself determines its legal status.

Transactions made by the state have a special legal regime. Features of the legal regulation of the private law activities of the state are predetermined by its sovereignty. Entering into civil law relations, the state does not lose its qualities as a sovereign. Sovereignty implies that the state has a whole complex of immunities. In the XNUMXth century in the doctrine of law, the theory of absolute immunity of the state was developed. In accordance with this theory, the state as a subject of civil law relations has the following immunities:

1) judicial - the lack of jurisdiction of one state to the courts of another. All transactions of the state should be considered only in its own courts. Without the express consent of a State to litigation in a foreign court, it cannot be sued abroad;

2) from preliminary securing of a claim - without the express consent of the state in relation to its property located abroad, no measures can be taken as a preliminary securing of a claim;

3) from compulsory execution of a judgment - without the consent of the state, no coercive measures may be applied to him to secure a claim or enforce a decision;

4) property of the state - the property of a foreign state is inviolable, cannot be nationalized, confiscated, it cannot be foreclosed. Without the consent of the owner state, its property cannot be subjected to expropriation, forcibly retained on the territory of a foreign state;

5) the doctrine of the act of the state (associated with the immunity of state property) - if the state declares that the property belongs to it, then the court of a foreign state is not entitled to question this statement. No foreign competent authorities can consider whether the property really belongs to the state if it claims that the property belongs to it. According to a state's conflict-of-law immunity, only its own law should apply to a state's PCR. All transactions of the state are subject to its national law.

In practice, the doctrine of absolute immunity can be applied only when the state is not actually a subject of civil legal relations and participates in them in exceptionally rare cases. In the second half of the XX century. the degree of participation of the state in civil relations has increased dramatically, which was the reason for the appearance in the doctrine of the theories of "service immunity", "trading state" and the doctrine of functional (limited) immunity. All these theories are aimed at limiting the immunity of a foreign state. Their essence boils down to the fact that if the state makes trade transactions on its own behalf, it automatically waives immunity in relation to such transactions and related property and puts itself in the position of a private person.

The constitutional courts of many European states (Austria, Belgium, Greece, Italy, Germany, Switzerland) in the 60s. XNUMXth century adopted decisions on limiting the immunity of a state acting as a participant in international civil legal relations. These decisions are based on the doctrine of functional immunity: a foreign state acting as a merchant can be sued on a general basis, its property can be levied on the same grounds, and its transactions are not excluded from the scope of local law even without the consent of the relevant foreign state.

In many Western countries, there is quite extensive legislation regulating state immunities: the US Foreign Immunities Act of 1976, the UK State Immunities Act of 1978, the foreign state immunity laws of Pakistan and Argentina of 1995. All these laws are based on the doctrine functional immunity of the state. Judicial practice of the listed states divides state acts into public and private, commercial and non-commercial. A foreign state enjoys immunity only in cases of sovereign actions (opening of diplomatic and consular missions). If the state commits acts of a commercial nature (ie, conducts trading activities), it does not enjoy immunity. In determining the nature of the activities of a foreign state, the courts must take into account the nature of the transaction, and not its purpose. A foreign state is not granted immunity from enforcement actions in relation to property that is used for trading purposes.

The main international legal act regulating state immunities is the European (Brussels) Convention on State Immunities of 1972, adopted by the Council of Europe. The Convention explicitly enshrines the theory of functional immunity: the Convention's preamble explicitly states that States parties are taking into account the tendency in international law to limit cases in which a State may invoke immunity in a foreign court. A foreign state enjoys immunity (Article 15) in relations of a public nature, but is not entitled to invoke immunity in the court of another state when joining a PPO with foreign persons. The Convention establishes a wide, detailed list of such relations.

Work on the codification of legal norms on the jurisdictional immunities of states and their property has long been carried out in the UN International Law Commission. The Commission prepared the Draft Articles on Jurisdictional Immunities of States and Their Property (based on the doctrine of functional immunity), which in 1994 was approved by a resolution of the UN General Assembly. On the basis of the Draft Articles, in 1999 the Commission prepared a draft Convention on Jurisdictional Immunities of States and Their Property.

The main beginnings of the participation of the state in international NPOs, its performance as a subject of PIL are that the relations are of an exclusively civil law nature, and only a foreign private person can act as a counterparty of the state. In the modern world, a general principle is recognized: the state, participating in PPO, acts in them on an equal footing with its counterparties. This provision is enshrined in Art. 124 and 1204 of the Civil Code. However, these norms of Russian law are dispositive in nature and provide for the possibility of issuing laws establishing the priority rights of the state in PPO.

Article 127 of the Civil Code established the rule that the specifics of the responsibility of the Russian Federation and its subjects in civil relations with the participation of foreign persons "are determined by the law on the immunity of the state and its property", but such a law has not yet been adopted, although work on its projects has been going on since the beginning of 1990 -s. The provisions of the draft Federal Law "On State Immunity", prepared in 2000 at the Center for Trade Policy and Law, are completely based on the doctrine of functional immunity, many norms are adopted from the European Convention of 1972.

The current Russian legislation is still based on the theory of absolute immunity (Article 401 of the Civil Procedure Code, Article 251 of the APC), which is a complete anachronism and is one of the most serious brakes on the inflow of foreign investment into the Russian Federation. The defects of the legislation are to a certain extent leveled by the provisions of the agreements concluded by the Russian state with private foreign partners, which fix the explicit, direct consent of the state to limit its immunity. International bilateral treaties of the Russian Federation on mutual protection and promotion of investments (with the USA, Hungary, South Korea, etc.) establish mutual waiver of state immunities by the subjects of the agreement, the presence of an arbitration clause in favor of foreign commercial arbitration (mainly the Arbitration Institute of the Stockholm Chamber of Commerce).

4.6. International Intergovernmental Organizations as Subjects of Private International Law

IMPOs are, first of all, traditional and typical subjects of international law. The scope of the international legal personality of the IMPO is, of course, less than that of the member states; nevertheless, organizations are included in the group of full and basic subjects of international law. However, any MMPO also has a private law status and acts as a subject of PIL.

In international civil legal relations, international organizations act as a legal entity. This is enshrined in the statutes of many IMPOs (Art. 39 of the ILO Statute, Art. 16 of the IAEA Statute, Art. 9 of the IMF Statute). The legislation of many states (USA, Great Britain, Russia) stipulates that international organizations can act on their territory as legal entities. The UN Legal Committee conducted a study of international and national judicial and arbitration practice, the results of which showed that all national law enforcement authorities recognize the status of legal entities for IMPOs.

International organizations are legal entities of a special kind - international legal entities. Since IMPOs arise within the framework of the international legal order, the quality of a legal entity can arise for them only on the basis of the IPP. The private legal status of the organization is enshrined in its charter, which is an international treaty. In the future, the status of MMPOs as international legal entities is fixed in international agreements with the participation of these organizations and in legal acts adopted by the MMPOs themselves. International legal entities are bearers of rights and obligations of a civil nature arising in international circulation, have separate property, can acquire property and personal non-property rights and obligations on their own behalf, act as plaintiffs or defendants in private law disputes in law enforcement agencies.

It must be taken into account that the civil legal capacity of MMPO is determined not by national, but by international law and has serious specifics, since we are talking specifically about international legal entities. MMPO as a subject of the LPP has privileges and immunities (property, from national jurisdiction, from the application of national law), while the entry of MMPO into the PPO implies the waiver of these privileges and immunities. International organizations as international legal entities have a complicated, dual legal status.

For MMPO there is an objective need to engage in private law activities. The volume and types of private transactions of international organizations are extremely diverse: the purchase and lease of real estate, the purchase of office equipment, the purchase of services (experts, translators, consultants), the conclusion of labor contracts. All these transactions are executed in the traditional form of contracts for work, purchase and sale, lease. For many commercial firms, the conclusion of contracts with MMPO is considered a particularly prestigious transaction, so many of these contracts are concluded on a competitive and auction basis.

The law applicable to transactions involving MMPO is determined on the basis of the autonomy of the will of the parties and the law of the place where the transaction was concluded. However, these traditional conflict of laws principles in such transactions are interpreted much more broadly than when concluding contracts between national legal entities. The rights and obligations of an international organization as a legal entity are determined by international law, therefore the conflict regulation of civil legal relations with the participation of MMPO is subject not only to national, but also to international law. In 1975, the Committee on Contracts of the UN Secretariat developed the Model Rules and Model Contracts for all UN MMOs. In a special opinion of the Legal Division of the UN Secretariat (2002) it is emphasized that "UN contractual practice tends to avoid reference to any particular law, especially national law. The most acceptable is the reference to the internal law of this organization."

The right of ownership of MMPO is fixed, as a rule, in an international agreement between the organization and the state of its place of residence. The initial beginning of the conflict regulation of property rights is the application of the law of the location of the thing. However, the international nature of MMPO property requires the transformation of this general conflict binding into special ones - the location of the headquarters of the organization, the location of the thing in the international area. Such a transformation of the traditional conflict of laws principles means the application of the internal rules of the organization itself to the regulation of the ownership of MMPO. In the same way it is customary to interpret the law of the place of conclusion of the transaction - the law of the place of conclusion of the contract in the international area.

The principle of autonomy of will is fully applicable to transactions involving MMPOs. The modern contract practice of MMPO indicates a steady trend of refusing to apply national law and subordinating the transaction to international law, general principles of law, general principles of international law.

SPECIAL PART

Topic 5. PROPERTY RIGHT IN PRIVATE INTERNATIONAL LAW

5.1. Conflict of ownership issues

The right to property is the central institution of national civil law. In international civil relations, questions of property do not play such a role. In the right of ownership, the international unification of civil substantive legal norms is practically impossible. The main role in the regulation of property rights and other real rights with a foreign element is played by conflict of laws.

The legislation of most states establishes the division of things into movable and immovable. In relation to immovable property, the principle prevails that the right of ownership of such property is subject to the law of the location of the thing. This law defines both the content of the ownership of real estate, and the form, and the procedure, and conditions for the transfer of real rights. The law of the location of a thing also regulates the form of transactions on real rights to real estate. More difficult is the solution of the issue of conflict of laws regulation of movable property (claims, securities, vehicles, personal belongings, etc.). The initial conflict principle for determining real rights to any property is the law of the location of the thing. This is a universally recognized conflict of laws principle of establishing the property-law statute of a right-relationship.

The property law statute resolves the issues of classifying things, their division into movable and immovable, the ability to act as an object of property rights and other property rights, the content of property rights and other property rights, the procedure and methods for the emergence, transfer and termination of property rights, the moment of transfer of rights property. In principle, almost everywhere a vicious circle of rights in rem is recognized, i.e., the impossibility of determining a statute in rem by the autonomy of the will of the parties. If the right of ownership arose according to the law of the location of the thing, then it is preserved and recognized when the thing is moved across the border, i.e., it remains with the acquirer and does not depend on the transportation of the thing to another state. All legal systems recognize the extraterritorial nature of rights in rem.

The law of the location of a thing usually determines the scope of the right of ownership. It follows from this that when things are moved from one state to another, the content of the owner's rights also changes, and it does not matter what law was applied when the property rights arose and what the personal law of the owner himself is. Thus, the right of ownership to a thing acquired abroad is recognized, but its content is determined not by the law of the place of acquisition of the thing and not by the personal law of the acquirer, but by the law of the location of the thing, i.e., local law.

Of particular complexity are issues related to the moment of transfer of the risk of accidental loss or damage to a thing from the alienator to the acquirer, when the transfer of ownership is carried out under an agreement. The transfer of ownership and the transfer of risk are different civil law categories. In the first case, there are problems of the property law statute, in the second - of the obligation. The question of the moment of risk transfer has independent conflict regulation. The Hague Convention on the Law Applicable to the Transfer of Ownership in Cases of the International Sale of Movable Material Things, 1958, establishes a fundamentally different and independent conflict of law regulation for the moment of transfer of ownership and the moment of transfer of risk. In international trade, when applying INCOTERMS, the moment of transfer of ownership and the moment of transfer of risk are considered as independent categories and are determined without using conflict of laws principles through unified substantive legal regulation. In INCOTERMS, the moment of transfer of ownership is not taken into account at all; only the timing of the transfer of risk matters.

Of particular complexity are cases where the subject of the transaction is "cargo in transit" - movable material things that are in the process of international transportation. When making transactions regarding such things, it is almost impossible to determine in which country the thing is located at the moment. As a general rule, special conflict bindings are applied - the law of the location of documents of title, the law of the place of departure or destination of the goods, the personal law of the owner, the law of the seller. The best way to regulate is to use the autonomy of the will of the parties.

In modern law, there are quite a few restrictions on the application of the law of the location of a thing, replacing it with other attachment formulas. In principle, there is a tendency to narrow the property-law statute of a legal relationship by expanding the obligations or personal. The Hague Convention on the Law Applicable to the Transfer of Ownership in International Trade in Goods contains the provision that the law applicable to the contract (i.e. the statute of obligations) in the relationship between the parties determines the moment before which:

1) the seller has the right to income or fruits from the thing sold;

2) the seller bears the risk associated with the thing sold;

3) the seller has the right to compensation for losses related to the thing sold;

4) there is a reservation on the retention of the right of ownership in favor of the seller, as well as the moment upon the occurrence of which the right to dispose of the thing passes to the new owner.

However, despite all the above restrictions on the application of the law of the location of a thing, this conflict principle remains the main conflict binding in determining the content of property rights. The generally accepted application of the law of the location of a thing is due to the established international legal practice. This conflict of laws principle is taken into account even if it is not enshrined in national legislation.

The conflict regulation of real rights in Russian legislation is established in Art. 1205-1207, 1213 GK. The general conflict binding of all real rights is the law of the location of the thing. This conflict rule will be applied to determine whether property belongs to movable or immovable, to determine the content, emergence, termination of ownership and other property rights (Article 1205 of the Civil Code). The conflict binding of this article is imperative. The application of the law of the location of the thing to property rights is supplemented by an imperative provision that the form of a transaction in relation to immovable property is subject to the law of the country where this property is located. The form of the transaction in relation to real estate entered in the state register of the Russian Federation must be subject only to Russian law (clause 3 of article 1209 of the Civil Code).

The law of the state in whose territory the thing was located at the time when the action or circumstance took place that served as the basis for the emergence or termination of rights in rem (Art. 1206 GK). The emergence and termination of real rights in transactions with "cargo in transit" is regulated on the basis of bindings of the statute of obligations, the law of the country of the place of departure of the cargo is applied (paragraph 2 of article 1206 of the Civil Code).

To the emergence of the right of ownership and other real rights to property acquired by virtue of acquisitive prescription, the law of the state on whose territory such property was located at the time of the end of the acquisitive prescription period is applied (paragraph 3 of article 1206 of the Civil Code). Thus, Art. 1206 of the Civil Code establishes a "chain" of conflict rules governing various cases of the emergence and termination of property rights. The Russian legislator establishes a special legal regime for things subject to state registration (water and aircraft, space objects). The law of the state in whose state register they are entered is applied to the regulation of the right of ownership and other real rights to such things (Article 1207 of the Civil Code).

Russian legislation takes into account current trends in the development of conflict regulation (expansion of the use of autonomy of will). It is possible for the parties to choose the law when concluding agreements regarding real estate (Article 1213 of the Civil Code). Autonomy of will is a general conflict of laws binding to all contractual relations, including real estate transactions. Article 1213 of the Civil Code also contains a subsidiary conflict of laws binding (in the absence of an agreement between the parties on the applicable law) - the law of the state with which the contract is most closely connected is applied. The law of the country with which this agreement is actually connected is the law of the location of the property.

Russian real estate has a special legal status. Only Russian law can be applied to contracts in relation to real estate located on the territory of the Russian Federation (clause 2 of article 1213 of the Civil Code). The legislator imperatively established the inadmissibility of the autonomy of the will in such agreements.

5.2. Legal regulation of foreign investments

Foreign investments are tangible and intangible assets owned by legal entities and individuals of one state and located on the territory of another state for the purpose of making a profit. Investments can be divided into direct and indirect (portfolio). Direct investment is the creation of joint ventures and enterprises 100% owned by foreign investors. Foreign investors directly and directly participate in the management of the enterprise. Portfolio investment does not provide for direct participation in the management of the company, but involves the receipt by foreign investors of dividends on shares and securities (that is, on capital invested in these enterprises).

In the structure of legal regulation of investment relations, two levels can be distinguished: international legal (conclusion of international agreements) and domestic (the basis is the national legislation of the host state). International legal universal regulation is provided for in the Washington Convention on the Procedure for Settling Investment Disputes between States and Foreign Persons of 1965 and in the Seoul Convention on the Establishment of a Multilateral Investment Guarantee Agency of 1985.

ICSID was established under the Washington Convention under the IBRD. The resolution of investment disputes is carried out through a conciliation procedure (Chapter III of the Convention) or through arbitration proceedings (Chapter IV). In order to avoid disputes, host states are required to provide national guarantees for foreign investment.

A more effective way to protect foreign investment is insurance. The Seoul Convention provides financial guarantees to foreign investors by insuring investments against non-commercial risks. The functions of MIGA are the conclusion of insurance and reinsurance contracts for foreign investors against non-commercial risks. The Seoul Convention enshrined the concept of traditional non-commercial risks - these are the risks associated with the transfer of currencies (except for the devaluation of the local currency), expropriation or similar measures, war, revolution, coup d'état and civil unrest (except for terrorist acts directed directly against the holder of guarantees). In addition to traditional non-commercial risks, the Seoul Convention provides for coverage of the risk of breach of contract by the host state. In accordance with the Convention, a system of public and private insurance has been established at the national level, supplemented by an international multilateral system of foreign investment insurance.

The 1997 Convention on the Protection of Investor Rights of the CIS countries determined the legal basis for the implementation of various types of investments and guarantees for the rights of investors. For foreign investors, national treatment is established (with the exception of exemptions defined in the national legislation of the participating States). Investors are guaranteed against changes in legislation; protection from nationalization; the right to use income, purchase shares and securities, participate in privatization, acquire real rights to land plots, natural resources and real estate, conclude concession agreements and production sharing agreements in relation to objects belonging to the monopoly of the host state.

The most flexible instrument for regulating investment relations are bilateral international agreements on mutual encouragement and protection of foreign investment. The purpose of such agreements is to ensure maximum protection of investments of another contracting state on the territory of one contracting state, providing guarantees for the unhindered export of the foreign exchange part of profits and guarantees against non-commercial risks. Bilateral international treaties on the mutual protection of investments provide for the mutual obligation of states not to carry out forced withdrawal of capital investments through nationalization, requisition or administrative confiscation. Bilateral agreements on mutual protection and promotion of investments bind most countries of the world (the Russian Federation has concluded more than 30 such agreements with Finland, France, Canada, the USA, Italy, Austria, Denmark, Greece, etc.).

The investment of foreign capital in the economy of the host state is greatly facilitated by agreements on the avoidance of double taxation. These agreements are designed to divide the tax jurisdiction of states, to agree on the most important terms in tax law, to establish the range of taxable income and the tax regime. All this creates additional guarantees for foreign investors. Russia participates in almost 90 bilateral agreements on avoidance of double taxation (with Great Britain, Canada, Cyprus, Spain, Italy, Belgium, Austria, Japan, Germany, USA, etc.)

Most states do not have codified national legislation on foreign investment. They are subject to general legislation (antimonopoly, antitrust, tax, civil, currency, banking). Special legislative acts on foreign investment have been adopted in almost all states and establish the investment procedure, the legal regime of foreign property, the organization of foreign investment, foreign investment regimes, benefits for them, full and unconditional legal protection of foreign investors. Each state independently establishes the procedure for admitting foreign capital to its territory. In some countries there is a permitting or licensing system (India, Latin American countries), in others a regime of free admission of foreign capital is established.

In any case, the host state is obliged to create stable, equal, favorable and transparent conditions for foreign investors. The 1994 Energy Charter Treaty requires host states to establish national or most favored nation treatment for foreign investors. Exceptions to these regimes should be kept to a minimum. As a rule, several types of foreign investment regimes are provided for in national legislation. In addition to the most favored nation and national regimes, a particularly preferential (preferential) regime can also be established. Preferential treatment is provided for foreign investors who invest in especially large amounts or in especially important and capital-intensive sectors of the national economy.

In the legislation of most states there is a "grandfather" (stabilization) clause on the application of more favorable legislation to foreign investors. The legislation of Armenia, Moldova, Kazakhstan stipulates that if the new legislation worsens the situation of a foreign investor, the former legislation is automatically applied to him until the expiration of the investment agreement. In Russian legislation, the "grandfather's" clause is worded somewhat differently: a foreign investor, in the event of a deterioration in his position due to changes in legislation, must himself apply to the competent authorities with a demand that the previous legislation be applied to him.

A serious obstacle to the implementation of foreign investment is the problem of nationalization of property of foreign individuals. Modern international law recognizes the inadmissibility of the nationalization of the property of a foreign state and the legitimacy of the nationalization of foreign private property. However, in modern law and practice, the unconditional obligation of the state to pay a foreign person prompt, effective and adequate compensation in the event of the nationalization of his property is fixed. Bilateral treaties on the mutual protection of investments, as a rule, provide for the refusal of the host state from the forced withdrawal of foreign investments through nationalization, confiscation or requisition.

There is no systematized investment legislation in Russia. The legal framework is the special Federal Law No. 30.12.1995-FZ dated December 225, 09.07.1999 "On Production Sharing Agreements", No. 160-FZ dated July XNUMX, XNUMX "On Foreign Investments in the Russian Federation", etc., individual sectoral laws, decrees of the President of the Russian Federation and decrees of the Government of the Russian Federation. Many constituent entities of the Russian Federation have adopted their own investment legislation.

Foreign investment is understood as the investment of foreign capital in objects of entrepreneurial activity in the territory of the Russian Federation in the form of objects of civil rights owned by a foreign investor - money, securities, other property and property rights having a monetary value, exclusive rights to the results of intellectual activity, services and information . Foreign investors on the territory of the Russian Federation enjoy the national regime. Russian legislation establishes a whole range of measures that guarantee the stability of the legal status of foreign investors.

Russian legislation retains the right of the Russian Federation to nationalization, but establishes the principle of prompt, adequate and effective compensation in favor of the foreign owner. Payment of compensation is made in the currency in which the investment was made, or in any other currency at the request of the investor. Russian law should apply to disputes about nationalization, and disputes themselves should be considered by Russian law enforcement agencies. It is natural that foreign investors have a sharply negative attitude towards such establishments of our national law and their unwillingness to risk their capital by investing it in the Russian economy.

5.3. Legal status of foreign investments in free economic zones

Currently, the UN has registered more than 30 different names of SEZs, which represent a separate territory of the state, where special conditions for managing through joint ventures with foreign investors are created. The concept of "FEZ" is conditional and collective - these are free customs zones (Bulgaria, Slovenia), free duty-free zones (Herzegovina, Macedonia), special economic zones (China), free industrial zones (Singapore, Hong Kong), export production zones (Malaysia , Mexico), free enterprise zones and technopolises (USA), free ports (Germany, the Netherlands).

All SEZs can be divided into three types:

1) free industrial zones, which are created in countries with developing market economies and are territories where a preferential legal regime operates in the field of trade, currency, customs and tax regulation;

2) foreign trade zones - designed to provide additional foreign exchange earnings through the creation of logistics warehouses, the organization of exhibitions, the transshipment of transit goods, the non-collection of trade duties and value added tax. Such zones exist in almost all countries. They are most widespread in the countries of Western Europe (for example, six cities - open ports in Germany - Bremen, Bremerhaven, Kiel, Hamburg, Kukehafen, Emden);

3) technology parks and technopolises - contribute to the acceleration of scientific and technological progress on the basis of international cooperation in the field of introducing the results of fundamental sciences and developing new science-intensive technologies; expansion of exports of finished products.

SEZ can also be divided into two types: closed, or enclave (fully export-oriented China); integration, connected not only with the foreign market, but also with the national economy (USA). The most important task of the FEZ is to attract foreign capital, advanced technologies, and managerial experience to the country's economy. It is in the FEZ that the most favorable conditions are created for foreign investors: benefits in the field of foreign economic activity are supplemented by budget loans to finance priority infrastructure facilities. In many states, special laws have been adopted that determine the conditions for the creation and operation of SEZs that are uniform for the whole country (USA, Mexico, Romania, South Korea, Hungary, Great Britain, Columbia, Bulgaria).

The activities of the SEZ are regulated not only by national legislation, but also by international law (International Convention on the Simplification and Harmonization of Customs Procedures 1973, Council of Europe Resolution 1988 "On Free Customs Zones and Warehouses").

On the territory of Russia since the early 1990s. several free economic zones were created - "Nakhodka", "Yantar", etc. Their legal status is determined by the decrees of the Government of the Russian Federation. In accordance with the provisions of the Customs Code, there are three free customs zones in Moscow - Sheremetyevo, Moscow Free Port, and Free Port Terminal. There are no provisions in the foreign investment laws regarding SEZs. It can be concluded that for foreign investors in the SEZ the same legal regime applies as for all foreign investors in the territory of the Russian Federation. The idea of ​​adopting a separate law on free economic zones has been repeatedly expressed, several drafts of such a law have been developed, but so far such a law has not been adopted.

Topic 6. LAW OF FOREIGN ECONOMIC TRANSACTIONS

6.1. General provisions

The main type of obligations in PIL are obligations from contracts with a foreign element. The foreign element in the civil law contract manifests itself in exactly the same forms as in other branches of PIL. The law of foreign economic transactions is the central institution of the Special Part of PIL. The concept of an external economic transaction is not unified either in the national legislation, or at the universal international level, or in the doctrine. Its definition is given by listing the features of such transactions: the "crossing" of goods and services across the border, the need for customs regulation, the use of foreign currency, etc. In modern practice, the main criterion for the foreign economic nature of a transaction is the sign established in the Vienna Convention on International purchase and sale of goods in 1980, - finding commercial enterprises of counterparties in different states.

It is necessary to distinguish civil law contracts, simply burdened with a foreign element, from foreign economic transactions. Civil law contracts with a foreign element are concluded on a personal level, are of a one-time, irregular nature and do not affect international trade turnover. Foreign economic transactions form the basis of international trade. This is the foundation, the central link of international commodity circulation. Such transactions have a "line" character and in modern science are combined into the concept of "macrologistics".

From the point of view of civil law characteristics, foreign economic transactions have the same features as domestic, economic contracts: a legally independent subject of the contract, provide for certain types and methods of execution, take into account the actual impossibility of execution (in particular, non-commercial risks). The main features of foreign trade transactions are the implementation of customs rules, an increased risk of default, the legal basis is, first of all, unified international norms.

The main type of foreign economic transactions is the contract of foreign trade (international) sale of goods. It is on its model that other types of foreign trade transactions are modeled - contract, transportation, credit, donation, storage, commission, insurance, licensing, etc. Countertrade transactions differ in certain features and legal specifics: the exporter undertakes to purchase goods as payment for his deliveries importer or ensure their acquisition by other means (barter transactions, counter purchases, counter deliveries, border and coastal trade). Compensatory and cooperation agreements, which provide for a whole range of additional measures and are concluded mainly with the participation of the state, constitute a special type of foreign trade transactions. In a separate group of foreign trade transactions, contracts can be distinguished that are used as ways of financing the main obligation - financial leasing, factoring, forfeiting.

6.2. Conflict issues of foreign economic transactions

The general general conflict binding of almost all foreign economic transactions is the autonomy of the will of the parties. The principle of autonomy of the will of the parties is considered the most flexible formula of attachment, and its application is most consistent with the general principle of freedom of contract. In the law of most states, the autonomy of will in contractual relations is understood not only as a formula of attachment, but also as a source of law. Such an understanding of the autonomy of the will can be deduced from the interpretation of Art. 421 GK.

If a dispute in a foreign trade transaction is resolved using a conflict of laws method of regulation, then autonomy of will is understood as the right to choose the application of a particular legal order to the transaction. In general, the legislation provides for the right of unrestricted choice of the applicable law by the parties. The laws of some states (Germany, USA, Scandinavian countries) establish "reasonable" limits on the autonomy of the will. To limit the limits of the autonomy of the will, the doctrine of "localization" is used (this is a general restriction on the freedom to choose the law). The applicable law clause (autonomy of will) may be expressly expressed or necessarily follow from the terms of the contract. Such a requirement contains paragraph 2 of Art. 1210 GK. In foreign law, there is the concept of "implied will" of the parties.

If the contract does not contain a clause on the applicable law, then in the courts of Western states, the "hypothetical", "implied" will of the parties is established. For this, the criteria of "localization", "fairness", "kind, caring owner", reasonable connection of the choice of applicable law with a specific actual composition are used. When establishing the law applicable to a foreign economic transaction, the theory of statutes, the theory of the essence of the legal relationship ("reason") and the theory of presumptions are applied: court and arbitration (whoever chooses the court, chooses the law); the law of the location of the institution serving its clients in droves; common citizenship or common domicile.

Even if the clause on the applicable law is expressly expressed in the contract, the establishment of "primary" statutes (personal and formal) of the legal relationship is carried out on objective grounds, regardless of the will of the parties. Mandatory application of the mandatory norms of the legislation of the state with which the transaction has a real connection is provided for (clause 5 of article 1210 of the Civil Code). This provision is intended to prevent circumvention of peremptory norms of national law by choosing the law of another state.

The general principle of establishing a formal statute of a legal relationship is the application of the law of the place where the contract was made. However, in transactions between absentees, it is rather difficult to determine the place of conclusion of the transaction, since in common law the theory of "letter box" is applied (the place of conclusion of the transaction is the place where the acceptance is sent), and in the continental - the doctrine of "receipt" (the place of conclusion of the transaction is the place of receipt acceptance). The personal law of counterparties is applied to establish the personal status of a legal relationship. Determination of the validity of the contract on the merits (questions of "vices of the will", etc.) is subject to the statute of obligations and involves the application of the law chosen by the counterparties.

Russian law (Article 1210 of the Civil Code) provides for the possibility of unlimited autonomy of the will of the parties. An agreement on the choice of law can be made both at the time of the conclusion of the contract, and subsequently; concern both the contract as a whole and its individual parts. The choice of law by the parties made after the conclusion of the contract has retroactive effect and is considered valid from the moment the contract is concluded. The agreement of the parties on the law applies to the emergence and termination of the right of ownership and other real rights to movable property.

In Russian law and practice, there is no concept of "implied will" of the parties. In the absence of an agreement between the parties on the applicable law, subsidiary conflict bindings are applied to the contract, established on the basis of the criterion of the closest connection (paragraph 1 of article 1211 of the Civil Code). The main subsidiary binding of contractual obligations is the law of the seller as the right of the central party to the transaction (the law of the carrier, the law of the contractor, the law of the custodian, etc.). This general conflict binding is transformed into special ones: the law of the place of establishment or the usual place of activity of the seller, the law of the place of his commercial establishment.

The Russian legislator understands the law with which the contract is most closely connected with the law of the country of residence or the main place of activity of the party that performs the performance, which is of decisive importance for the contract (clause 2 of article 1211 of the Civil Code). In paragraph 3 of Art. 1211 of the Civil Code lists 19 special subsidiary conflict of laws bindings for the main types of foreign economic transactions (gift agreement - the law of the donor, the pledge agreement - the law of the pledger, etc.).

The Russian legislation emphasizes the specifics of the conflict regulation of some foreign trade transactions. The law of the country where the results of the relevant activity are mainly achieved is applied to the contract for the construction contract and the contract for the performance of scientific and survey work. Special conflict rules govern transactions concluded at an auction, on an exchange, through a competition - the law of the country where the competition or auction is held, the location of the exchange (clause 4 of article 1211 of the Civil Code) is applied. Contracts involving the consumer are governed by the law of the consumer's country of residence. At the same time, even if there is an agreement between the parties on the right, special protection of the rights and interests of the consumer is provided (Article 1212 of the Civil Code). The law of the country of the place of the main activity of the partnership is applied to the simple partnership agreement (clause 4 of article 1211 of the Civil Code).

6.3. Scope of the Statute of Obligations on Foreign Economic Transactions

The statute of obligations is a set of rules of applicable law that regulate the content of the transaction, its validity, the procedure for execution, the consequences of non-performance, and the conditions for releasing the parties from liability. The initial conflict principle is the subordination of the main issues of the statute of obligations to the law chosen by the parties, and in the absence of such a choice, to the law of the state of that party to the contract, the obligation of which is the main content, a feature of a particular type of contract. The main issue of the statute of obligations is the rights and obligations of the parties. They should be determined in accordance with the rules of the legal system freely chosen by the counterparties themselves.

The term "mandatory statute" is also used to designate the scope of the law to be applied to the contract (Article 1215 of the Civil Code). This norm of Russian legislation establishes that the law applicable to the contract determines: the interpretation of the contract, the rights and obligations of the parties, the performance of the contract, the consequences of non-performance and improper performance, the termination of the contract, the consequences of the invalidity of the contract. The domestic legislator takes into account the trend of narrowing the scope of the real-law statute for transactions related to real rights, and replacing it with obligations (clause 1, article 1210 of the Civil Code). It is also widely recognized that the legal regulation of the moment of transfer of the risk of accidental loss and damage to a thing is determined by the statute of obligations of the transaction.

Issues of accessory obligations are considered in a special order. Security obligations accompanying foreign economic transactions are excluded from the obligation statute. Conflict bindings of guarantee and pledge agreements have an independent character. The scope of the guarantor's liability, the rights and obligations of the pledgor are subject to the rule of law, which is established independently, regardless of the statute of the main debt (subparagraphs 17 and 18, paragraph 3, article 1211 of the Civil Code). However, the content of the main debt affects the obligations of the guarantor and the pledgor. In this case, there is a splitting of the conflict binding: relations on the main obligation are subject to one legal order, and relations on accessory obligations - to another. Relations associated with the assignment of a claim, the payment of interest, a deposit and a penalty are subject to the same law as the capital part of the debt (Articles 1216 and 1218 of the Civil Code).

The scope of the statute of obligations excludes questions about claims that are not covered by the limitation period (claims for damages, claims arising from personal non-property rights, etc.). As a general rule, the law of the court must be applied to them in accordance with the general concept of tort obligations. The scope of the statute of obligations cannot include questions about the general legal and legal capacity of the parties when making foreign trade transactions. To solve these problems, a combination of the personal law of contractors and the substantive principle of national treatment for foreigners in the field of civil rights is applied.

6.4. Form and procedure for signing transactions

Conflict problems of the contract form are related to the fact that the form of a foreign trade transaction is not unified and in different states different requirements are imposed on it (oral, simple written, notarized, "agreements under seal"). Conflict rules on the form of a transaction are imperative in nature and have a special structure. They imply the cumulation of a conflict of laws binding (the form of the transaction is subject to the law of the place of its execution, but in case of its discrepancy with local law, it is sufficient to comply only with its requirements).

The form and procedure for signing a transaction are issues that are not included in the statute of obligations of a legal relationship. In the legislation of most states, there are special imperative conflict of laws rules on the form and procedure for signing transactions. Violation of the form and procedure for signing is the basis for the voidability of the contract. As a rule, a special form is provided for foreign economic transactions. The main conflict binding of the form of such contracts is the law of the place of registration of the act (the law of the place of the transaction).

The law of the place of registration of the act is also understood as the "law of reason" or "the law of the place of issuance of the law" (lex causae). Real estate transactions, in terms of form, are subject exclusively to the law of the location of the thing. An attempt to unify the form and procedure for signing foreign trade contracts was made in the 1980 UN Vienna Convention on Contracts for International Sale in accordance with its domestic law. Russian law provides for a mandatory simple written form of foreign trade transactions in which at least one of the parties is represented by Russian legal entities. Failure to comply with a simple written form is the basis for recognizing the nullity of the transaction (under Russian law).

6.5. International legal unification of norms on foreign economic transactions

The most significant achievements in the unification of international legal norms are observed in the sphere of foreign trade. The Hague Conferences on PIL, ICC, WTO, UNISTRAL and other international organizations play an important role in this process.

Currently, there is a whole complex of the Hague Conventions on the international sale, adopted in the 50-60s. 1955th century One of the first is the Hague Convention on the Law Applicable to the International Sale of Movable Material Things, 1958. The Convention establishes the principle of unlimited free will of the parties. Subsidiary conflict binding - application of the law of the seller's domicile (in the absence of an express reservation of law). States parties are obliged to translate the norms of the Convention into their national law. The Hague Convention on the Law Applicable to the Transfer of Ownership of Movable Material Things, XNUMX, expands the scope of the statute of obligations in sales contracts by narrowing the statute in rem.

Already in 1930, UNIDROIT prepared uniform rules governing the international sale and purchase. The draft rules were discussed at the sessions of the Hague conferences in 1951-1956. On its basis, the Hague Conventions of 1964 were developed and adopted - the Convention on a Uniform Law on the Conclusion of Contracts for the International Sale of Goods (The Hague Convention on the Conclusion of Contracts) and the Convention on a Uniform Law on the International Sale of Goods (The Hague Convention on the Sale of Goods ). The scope of the conventions is not universal, and the circle of their participants is rather limited. The 1964 Hague Conventions have not been widely accepted.

The UN Vienna Convention on Contracts for the International Sale of Goods of 1980 is currently the main universal multilateral international document on foreign trade transactions. The scope of the Convention is purchase and sale transactions between entities whose places of business are located in different states. Its provisions are of a compromise nature, since they represent an attempt to combine the principles of the continental and common legal systems in one treaty. The Convention consists of dispositive material self-fulfilling norms. In order to unify the international legal regulation of international trade, the member states of the Vienna Convention are obliged to denounce the Hague Conventions of 1964.

Issues of limitation in international trade are regulated by the New York Convention on the limitation period in the international sale of goods of 1974 (with the Protocol of 1980, amended and supplemented in accordance with the Vienna Convention of 1980). The Convention defines contractual limitation periods (reduced in comparison with national ones), their beginning, course, break and expiration.

The 1986 Convention on the Law Applicable to Contracts for the International Sale of Goods establishes a general conflict binding of foreign trade contracts - the autonomy of the will of the parties, expressly or directly arising from the terms of the transaction and the behavior of the parties. The Convention enshrines the right of "additional and private autonomy of the will." It is also possible to change the applicable law clause after the conclusion of the contract. In the absence of an agreement between the parties on the applicable law, the law of the country of the seller is applied as a subsidiary conflict of laws binding.

Issues of international trade are also regulated in regional international agreements. The Rome Convention of the EU on the Law Applicable to Contractual Obligations, 1980, enshrines the principle of the unlimited will of the parties, expressly or with "reasonable certainty" arising from the terms of the contract or the circumstances of the case. The Convention also provides for the grounds for restricting the freedom of choice of law by the parties on the basis of the presumption of "the closest connection." The 1994 Inter-American Convention on the Law Applicable to International Contracts defines international contracts. The autonomy of the will is fundamental to the choice of law.

6.6. International trade custom

International customs are widely used in foreign trade transactions. The existence of a custom can be proved by the parties to the dispute, established by a court or arbitration on its own initiative. Established custom is the rule of law applicable to the resolution of a dispute in a given transaction. In the field of international trade, the following customs are distinguished:

1) which are unified international substantive legal norms;

2) applied in foreign trade, but due to their national characteristics, they are not norms of an international character, but in essence represent national customs of foreign trade.

It is often difficult to say whether a given custom is uniformly applied by all states, or whether the features of its application differ so significantly in different states that one should speak of national differentiation of the trade custom.

A common feature of all international trade customs is that the moment of transfer of the risk of accidental loss or damage to a thing is separated from the moment of transfer of ownership and is established independently of it. The transfer of risk is associated with the fulfillment by the seller of all its obligations under the contract, and not with the moment of transfer of ownership. If only questions arise in a case that are equally resolved on the basis of this type of custom in different countries, then such a custom has an international character and eliminates the very occurrence of a conflict issue.

In WFP and PIL, the term "usual" is often used. It must be distinguished from custom. A custom is a uniform, stable rule, a general practice that has no legal force. As a rule, the formation of a custom is the first stage in the establishment of a customary rule of law. A custom is also a general practice, but recognized as a legal norm (Article 38 of the Statute of the International Court of Justice).

The process of turning a custom into a customary rule of law implies its mandatory recognition as a legal norm at the international or national level. The custom belongs to the oral category of sources of law, but all international and national legal customs are recorded in writing (in judicial and arbitration practice, by establishing the usual terms of forms and model contracts, in collections of information on international trade customs, in "codes" of trade customs, in private unofficial codifications of international customs). It is the written fixation of international and national customs in non-normative form that constitutes the recognition of custom as a rule of law.

6.7. International Rules for the Unified Interpretation of Trade Terms

Trade terms (types of contracts) have evolved in practice for a long time and, in the end, have acquired the quality of the customs of international trade. However, the content of these terms is not the same in the practice of states (for example, the FAS condition in Russian practice is understood as "free along the ship's side", in the USA and Western European countries - as "free station"). In order to prevent such misunderstandings, the ICC has developed INCOTERMS, which are a private, unofficial codification of international trade usages. The first edition of INCOTERMS was published in 1.

Currently, INCOTERMS-2000 is in force, which is a new formulation of international rules for the interpretation of trade terms that have become most widespread in international trade. The new edition of the terms was made for their more convenient understanding and reading. The terms, the interpretation of which is given in INCOTERMS, are some types of international sales contracts based on a certain, fixed distribution of the rights and obligations of trading partners. There are three groups of issues on which the rights and obligations of the parties under each type of contract are fixed:

1) the rights and obligations of counterparties for the transportation of goods, including the distribution of additional costs arising in the course of transportation;

2) the rights and obligations of counterparties to perform customs formalities related to the export and import of goods, their transit through third countries, including the payment of customs fees and duties;

3) the moment of transfer of risk from the seller to the buyer in case of loss or damage to the goods during the transportation period.

In INCOTERMS, certain types of contracts are formulated depending on the conditions of transportation of goods, transfer of risks, etc., thus, the type of contract is reduced to the type of conditions on which it is made. Unified 13 terms that make up 13 types of contracts. INCOTERMS, in principle, refer only to the terms of trade and transport of goods in contracts of sale. All conditions are divided into four fundamentally different categories depending on the degree of participation and responsibility of the seller for transport, customs and other encumbrances.

As already mentioned, INCOTERMS as a whole is simply a written fixation of trade customs, their unofficial codification, which has neither binding legal force nor the nature of a source of law. The source of law is each separate type of contract, which is an international legal custom. Previously, the application of INCOTERMS required a special clause of the parties to the contract on their application. Currently, international arbitration practice and the legislation of some states (Decree of the President of Ukraine in 1994) follow the path of using IN-COTERMS, regardless of the presence or absence of a reference to them in the contract. The priority application of INCOTERMS and other international trade and business customs is enshrined in Russian law (clause 6 of article 1211 of the Civil Code), but it is necessary to directly use the relevant terms in the contract.

6.8. The theory of lex mercatoria and non-state regulation of foreign economic transactions

In the PIL doctrine, the concept of lex mercatoria (transnational trade law, ITUC, the law of the "international community of business people") is widespread. The main meaning of this concept is that there is an autonomous, separate regulation of international trade transactions, an integral set of regulators of foreign economic operations, different from domestic regulation. The concept of lex mercatoria is used in the broadest sense of the word - it is the designation of the entire existing array of both national and international regulation of all foreign trade relations, that is, a global understanding of all the rules of international trade.

Most foreign scientists believe that the main role in the development and application of the ICJ belongs to arbitration. Lex mercatoria is quite often used in international trade contracts as a clause on the applicable law (subordination of the contract to the general principles of law or the customs of international trade). It is possible and implied to refer to the ICR, which can be considered a clause on the resolution of the dispute by arbitrators as "friendly mediators" (as "friendly mediators" arbitrators are not bound by the norms of any national law and can decide the dispute on the basis of the principles of morality and justice). Arbitrators can act as "friendly intermediaries" if there is an appropriate agreement between the parties (clause 2, article VII of the European Convention on Foreign Commercial Arbitration of 1961). In addition, the very transnational nature of the trade contract allows arbitration to apply the MCP.

Lex mercatoria is understood as a universal system of legal norms, a special legal order. In the literature, it is called the third legal system (the first is national law, the second is international law). However, almost everyone admits that this is not a legal, but a paralegal system (parallel law). The terms "law", "legal system" in this case are understood conditionally - this is a normative regulatory system. By its legal nature, lex mercatoria is a system of non-state regulation of international trade.

The basis of the system of non-state regulation is primarily the resolutions of the recommendations of international organizations, for example, the Guidelines for Multinational Enterprises (OECD), the Principles of Multinational Enterprises and Social Policy (ILO), the Set of Fair Principles and Standards for Controlling Restrictive Business Practices (UN). The legal bases and forms of the MCP as a system of non-state regulation are: standard contracts for certain types of goods; optional general conditions of delivery; arbitration rules; codes of conduct (International Code of Practice for Advertising, Code of Conduct for Linear Conferences, Code of Conduct for TNCs, Code of Conduct for Technology Transfer). An important place with this system is occupied by INCOTERMS, the York-Antwerp Rules on General Average, the Uniform Customs and Practice for Documentary Credits and other unofficial codifications of international customs.

All these documents are created by international organizations, are advisory in nature and do not come directly from states, but only indirectly express their will as members of international organizations. For example, model contracts and arbitration rules of the UNECE are an indirect expression of the agreement of the will of states as subjects of this organization.

Very often, the UNIDROIT Principles of International Commercial Contracts of 1994, an unofficial codification of the rules of international trade, are identified with the lex mercatoria. The principles establish "general rules for international commercial contracts" and are based on the general principles of the law of civilized peoples, as well as principles best adapted to the special needs of international trade. The UNID-ROI principles are a set of flexible rules that take into account all the diversity of foreign trade practices. They do not have legal force and are not binding on participants in international trade, but are subject to application only with the special consent of the parties. The following aspects of the application of the UNID RUA Principles can be distinguished:

1) regulation of foreign trade transactions, when the parties have agreed on their application;

2) as evidence of general practice, if it is impossible to establish the applicable law;

3) interpretation and filling in gaps in international multilateral agreements.

UNIDROIT principles consolidate the freedom of contract, its good faith and binding nature, formulate the specific conditions of international commercial contracts, resolve the contradiction between standard and unexpected conditions and the problem of pro forma conflict, establish the possibility of implied obligations. The development of the Principles provided an opportunity for participants in foreign trade activities to apply a systematized and expertly formulated set of uniform rules.

The level of modern development of the ITUC is directly due to the codification of the usual rules of international trade in the UNIDROIT Principles. Thanks to the publication of the UNI DROIT Principles, the disparate rules of international trade have acquired a systemic character, so that at present one can speak of the ITUC as an independent regulatory system. On the basis of the UNIDROIT Principles in 1995 b ^ 1li developed the Principles of European contract law.

Topic 7. RIGHT OF INTERNATIONAL CARRIAGE

7.1. General provisions of international transport law

The contract of international carriage is a special type of foreign economic transactions. The specificity of this agreement is due to the peculiarities of transport as a natural monopoly of the state. The contract of international carriage includes public law (determination of the status of the transport environment) and private law (direct organization of the transportation itself) aspects. International transportation is the transportation of goods and passengers between two or more states, carried out on the terms of an international agreement concluded between them.

The specificity of legal regulation lies in the fact that the main issues of transportation are resolved in international agreements (international transport conventions) containing unified substantive and conflict of laws rules. In the absence of an international agreement, carriage across borders is not international and is governed by national legislation. The contract of carriage is a secondary foreign trade transaction serving the general system of goods movement.

Types of international transportation: rail, road, air, water (river and sea). There is also pipeline transport, but its use does not constitute a contract of carriage (there is no central party to this contract - the carrier). Serious specifics have transit, mixed, container and combined international transportation.

The features of the law applicable to the contract of international carriage lie in the action of general conflict bindings (the law of the location of the thing, the conclusion of the contract, the infliction of harm) and their transformation into special ones (the law of the road of departure; port of destination; places of collision of ships, etc.). The autonomy of will is the general conflict binding of the contract of international carriage as a secondary foreign trade transaction. In the absence of an agreement between the parties on the law, the criterion of the closest connection is applied, which is understood as the law of the place of residence or the main place of activity of the party to the relationship that performs the performance, which is decisive for the content of the contract (the law of the country of the carrier - subparagraph 6, paragraph 3, article 1211 GK).

7.2. International rail transport

International rail transportation is the transportation of goods and passengers between two or more states under the terms of an international railway convention. Rail transportation in the absence of an international transport agreement is not international, but has a national legal character. Such transportation is divided into several stages and formalized by several contracts of carriage: following to the border station - according to the law of the state of the place of departure, after crossing the border - according to the national law of the corresponding foreign state, etc. International railway conventions can have both intergovernmental and interdepartmental character . Along with these conventions, special agreements of an auxiliary nature are concluded that regulate exclusively relations between railways and do not create rights and obligations for the parties to the contract of carriage.

It is generally recognized that in the presence of a railway convention, the application of national legislation is allowed only if there is a reference to it in the convention itself or on issues not regulated by the convention. The peculiarities of conflict regulation of international railway communication consist in combining the action in each contract of several conflict principles. Extremely common is the transformation of general conflict bindings (the law of the location of the thing, the place of the contract) into special ones (the law of the road of departure, route, transit, destination, etc.). The legal regulation of rail transport implies the possibility of autonomy of will in the choice of applicable law and jurisdiction.

Multilateral international agreements on rail transport are concluded, of course, only at the regional level. In Western, Central and Eastern Europe, the Berne Conventions on the Carriage of Goods by Rail, 1890 (SIM) and on the Carriage of Passengers and Baggage by Rail, 1923 (CIV) apply. In 1980, a special Conference was convened to revise the Berne Conventions, which ended with the adoption of the Agreement on International Carriage by Rail, 1 (COTIF). The International Passenger Convention (Appendix A - IPC Uniform Rules) and the International Cargo Convention (Appendix B - CIM Uniform Rules) have been developed as an Annex to COTIF. A special supplement has been adopted to the CIM - the Rules for International Freight Traffic, which is a service instruction to COTIF.

Within the framework of COTIF, the Berne International Railway Transport Organization was established. When calculating international rail transport, SDRs are mainly used - an international currency unit established in 1967 by the IMF. Not only European countries, but also individual states of Asia and Africa participate in COTIF. The provisions of COTIF apply to the transportation of Russian foreign trade goods to the countries of Western Europe and from them to Russia.

COTIF applies not only to rail, but also to mixed rail-water-air traffic. The norms of the IPC and the CIM are dispositive in nature, they establish the possibility of changing the conditions of transportation through separate bilateral agreements and the norms of national laws. COTIF has quite a lot of special conflict bindings (the law of the route of departure of cargo, the route of cargo, the route of destination of cargo). The application of the law of the country of the forum and the wide possibility of autonomy of the will are envisaged.

Russia also participates in multilateral international regional agreements on rail transportation - in the Agreement on International Freight Traffic (SMGS) and the Agreement on International Passenger Traffic (SMPS) of 1951 (valid in 1992 version). For intermodal transport, special agreements are concluded under the SMGS rules. The scope of the SMGS and SMPS is the former socialist states of Eastern Europe and Asia, the former union republics of the USSR.

SMGS and SMPS contain mandatory unified substantive and conflict of laws rules. All bilateral agreements derogating from the rules of SMGS and SMPS are invalid. Types of special conflict bindings in these agreements: the law of the road of departure of the goods; cargo routes; road that changes the contract of carriage; roads where the cargo was detained; cargo destination roads; the road in question. The impossibility for the parties to choose the applicable law and other conflict-of-law bindings has been established. The application of national laws is permissible only on issues not regulated in the agreements.

Russia has a whole system of bilateral agreements on international rail freight and passenger traffic with various countries (Turkey, Finland, Iran, Austria, etc.). The freight charge for all international rail transportation in Russia is set at MTT rates. Preferential freight charges are fixed in the Russian-Finnish agreement. On the Trans-Siberian Railway, cargo transportation is carried out by through accelerated container trains - "Western Wind" and "East Wind".

7.3. International road transport

The legal status of the land transport environment is inextricably linked with the legal status of the state territory. The sovereignty of the state fully extends to the territorial entities belonging to it and predetermines the specifics of the legal regime of land transportation. The organization of road communication is closely related to the norms of national public law. International road communication, in addition, has a special specificity. A motor vehicle crosses borders and follows the roads of different states, i.e. there is a need to establish uniform traffic rules, a unified system of road signs and signals.

International road transport is the carriage of goods and passengers by a motor vehicle on the basis of an international agreement, in which the point of departure is located on the territory of one state, the point of destination is on the territory of another, as well as transportation in transit. An agreement on international road transport is a special type of foreign trade transactions, a special commercial agreement. Trucking is usually carried out not by the parties to the contract, but by companies associated with them, which can themselves conclude a road transport contract. The most characteristic legal feature of these agreements is their nature as a double foreign trade transaction.

In Europe, there is a whole system of international treaties regulating road transport: the Convention on Road Traffic of 1949 (effective in terms of organizing road traffic) and its Protocol on Road Signs and Signals of 1949; Convention on Road Traffic of 1968 (establishes a uniform system of road signs and signals, a single road marking); European Agreement concerning the International Carriage of Dangerous Goods by Road, 1957 (ADR); European Agreement on International Highways 1975 (CMA).

Among the regional European agreements, the main role in the legal regulation of international road transport is played by the Geneva Convention on the Contract for the International Carriage of Goods by Road of 1956 (CMR or CMR) and the Geneva Customs Convention on the International Carriage of Goods using TIR Carnets (TIR Carnets) of 1975 (Convention TIR).

The CMR has unified the conditions for the international carriage of goods by road. The scope of the CMR is the regulation of the relationship between the carrier and the cargo owner, the procedure for accepting cargo for transportation and issuing it at the destination. Scope of the CMR: all contracts for the carriage of goods by road for consideration where the place of loading and the place of delivery of the goods are located in the territory of two different states, at least one of which is a party to the Convention.

The CMR contains detailed rules on all the basic conditions of carriage; a list of carriages to which the Convention does not apply has been established. The application of the Convention does not depend on the place of residence and nationality of the parties to the contract. The norms of the CMR are mandatory. Deviations from its provisions are not valid. The CMR is a conglomeration of substantive and conflict of laws rules. Conflict regulation provides for the application of general and special conflict of laws rules: autonomy of will, law of the court, law of the place of departure and location of the goods (general); the law of the location of the head office of the defendant's enterprise, the law of the location of the office that concluded the contract, the law of the place where the goods were presented to the carrier (special).

The TIR Convention defines the procedure for processing customs formalities and the procedure for customs examination in the international carriage of goods by road. The main attribute of the Convention is the TIR Carnet (single customs document), the holder of which enjoys the advantage of first-priority customs clearance (TIR sign). In the participating States, there are special guaranteeing association institutions for the protection of persons using the TIR procedure. ASMAP, a non-profit organization, a member of the International Road Transport Union, has been established in Russia. ASMAP is a guarantee association of Russian international road carriers.

Russia participates in a large number of bilateral international agreements on international road transport. All these agreements contain general provisions that establish a licensing system for international road transport of passengers, baggage and cargo, and resolve issues of transportation to and from third countries (for example, the Russian-Austrian agreement on international road transport). Transportation to and from third countries is carried out on the basis of a "standard international license" issued with the permission of the ECMT, of which Russia has been a member since 1997.

Since a motor vehicle is a source of increased danger, guarantees provided to third parties in case of damage are very important for road transportation. Trucking involves compulsory civil liability insurance. In Europe, since 1953, there has been an international automobile insurance card (the "green card" system).

Guarantees for causing harm to third parties by a motor vehicle are also provided at the international level in accordance with the Hague Convention on the Law Applicable in Cases of Accidents in Road Traffic, 1968. The Convention contains unified international conflict of laws rules. The main conflict binding is the substantive law of the country in whose territory the accident occurred. Subsidiary conflict rules - the place of registration of the vehicle, the place of usual residence of the victim.

7.4. International air transportation

The legal regime of the air transport environment is the scope of public law (national and international). The air transport environment is divided into the sovereign airspace of specific states and international airspace. At the interstate level, a global system for managing international air traffic has been created, in which the main role is assigned to ICAO.

The main document regulating the use of international and national airspace is the Chicago Convention on International Civil Aviation of 1944. The Convention established general rules for the operation of civil aviation in the implementation of international communications, categories of international flights (regular and irregular); defined the concept of international flights and air routes. The main purpose of the Convention is the legal regulation of international air communications and commercial activities. The Convention enshrined a list of commercial air freedoms: basic, additional, prohibition of cabotage. There are 18 annexes to the Chicago Convention. ICAO was created on the basis of the Convention. Currently, within the framework of ICAO, international aviation regulations are being developed.

The Warsaw Convention of 1929 for the unification of certain rules for international air transport is the basis for the legal regulation of international air transport. Agreements supplementing the Warsaw Convention: 1955 Hague Protocol, 1971 Guatemala Protocol amending the Warsaw Convention, 1961 Guadalajara Convention, 1975 Montreal Protocol for the Unification of Certain Rules Relating to International Carriage by Air carrier"), the Montreal Interim Agreement of the Airlines of 1966, the Montreal Agreement of 1999. The totality of the norms of these agreements as a whole constitutes the Warsaw system of regulation of international air transportation. IATA, a special non-governmental organization, an association of airlines of ICAO member states, is engaged in determining the specific conditions for international air transportation.

The Warsaw Convention of 1929 is the primary international legal source of the law of international air transportation. The Convention defines international air transportation as a transportation in which at least one of the points of landing is located on the territory of another state. Scope of the Warsaw Convention: transportation of goods, passengers, baggage, combined transportation. The Convention does not apply to air transportation between the states-participants of the Convention and the states not participating in it; does not apply to mail shipments. The Warsaw Convention applies to the following air services:

1) the place of departure and the place of destination, regardless of the interruption in carriage, are located on the territory of two States Parties to the Convention;

2) the place of departure and the place of destination are located in the territory of one state party to the Convention, but the stopover is provided for in the territory of another state, possibly not party to the Convention.

In international air traffic, flights are often performed by several carriers in succession. From the point of view of the Warsaw Convention, such transportation is considered as a single one, regardless of how the transportation is framed - by one or more contracts. The main content of the Warsaw Convention is the unified substantive norms of an imperative nature. There are practically no general conflict-of-law bindings in the Convention, there are only a small number of conflict-of-law bindings on particular issues (and all of them provide for the exclusive application of the law of the place of court). The provisions of the Warsaw Convention are currently implemented in the national legislation of most countries of the world.

The specific nature of air traffic creates difficulties in determining the applicable law and establishing jurisdiction. Basically, these issues are regulated by the unified substantive norms of international conventions. However, it is not uncommon for a conflict issue to arise if:

1) the carriage is related to a state that is not a party to the Warsaw Convention;

2) issues arise that are not regulated in the Warsaw Convention system;

3) the conditions of carriage established by the airline do not comply with national law.

The national legislation of most states does not contain special conflict-of-law bindings for air traffic, therefore, the general conflict-of-law principles of the carrier's law, the law of the court, and the flag's law apply. The law of the carrier in the law of international air transportation is traditionally understood - this is the law with which air traffic has the closest connection (the location of the party whose performance characterizes the contract of carriage). The law of the place of conclusion of the contract is understood specifically - as the law of the country where the first leg of the flight was started.

VK operates in Russia. Its norms take into account the main provisions of the Warsaw Convention of 1929. The VC defines: the concept of international air transportation; the rights and obligations of the carrier, his liability; liability of the aircraft owner; compulsory third party liability insurance; sums insured. Russia is a party to a large number of bilateral international agreements on air traffic (more than 130). Their basis is the rules of the Chicago Convention of 1944. Such agreements provide for a "package" of commercial rights of the contracting states, their rights and obligations (see, for example, the Agreement between the Government of the Russian Federation and the Government of the Slovak Republic on air traffic of 1995 and the Annex to the Agreement) .

7.5. International shipping

The legal regime of the maritime transport environment is established in the UN Convention on the Law of the Sea of ​​1982. The Convention establishes a clear delimitation of maritime spaces, their international legal status. The provisions of the Convention also affect the problems of PIL - the right of innocent passage; civil jurisdiction over foreign vessels; immunity of state ships operated for non-commercial purposes; the nationality of the courts; "convenient flags"; most favored nation clause.

The legal regulation of the carriage of goods by sea includes the norms of maritime navigation and merchant shipping and is a subsystem of PIL. The concepts of "MCHMP" and "merchant shipping" have been established in the doctrine for quite a long time. Groups of relations in this area - real rights to sea vessels, contracts for carriage by sea, relations associated with the risk of navigation. The conflict regulation of legal relations in this area is characterized by an abundance of various conflict of laws rules, their extensive system. In addition to general collision bindings, there are a large number of special ones (the law of the flag, etc.). Characteristically, the modification of general conflict principles, their transformation into special ones: the law of the port of departure instead of the law of the place of conclusion of the contract, the law of the place of collision of ships instead of the law of the commission of an offense, etc. The most important conflict principles for international shipping are the autonomy of will and the law of the court.

The process of unification of the MCHMP has been going on for more than a hundred years. At the regional level, the most successful examples of unification are the Bustamante Code, the Montevideo Merchant Shipping Agreement of 1940 (Latin America). In the middle of the XIX century. b^1li the first attempts at a worldwide codification of maritime law were made. Currently, a large number of universal, multilateral international agreements are in force in the field of MCHMP: the set of Brussels conventions on international maritime navigation (Brussels conventions of 1910 to combine certain rules regarding the collision of ships, regarding the provision of assistance and rescue at sea); Convention on Limitation of Liability for Maritime Claims, 1976, as amended by 1996 protocol; International Convention on Maritime Liens and Mortgages, 1993; UN Convention on International Multimodal Transport of Goods 1980; International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996, etc.

The main forms of organization of maritime transport are linear (regular) and tramp (irregular). International liner transportation is issued by a bill of lading. A bill of lading is a special receipt certifying the acceptance by the carrier of cargo for its transportation by sea. The first attempt to determine the international status of a bill of lading was made in the Brussels Convention on the Unification of Certain Rules on Bill of Lading of 1924 (adopted under the auspices of the International Maritime Committee). The Convention entered into force in 1931 under the name of the Hague Rules of 1924. These rules are one of the main existing sources of unified rules governing property relations in the field of merchant shipping.

The key provisions of the Hague Rules are the rules on the liability of the carrier. The rules establish a mandatory minimum of the carrier's liability and at the same time protect his interests: exceptions to the liability rules are provided and the grounds are listed that exempt the ship and the carrier from liability. The Hague Rules are based on the principle of presumption of carrier's fault.

The Hague Rules are dispositive and have a narrow scope. They contain a limited range of unified rules governing transportation. The problems of cabotage, charter, loading, unloading remained outside the scope of the Rules.

In 1968, the Wisby Rules were adopted - an additional protocol to the Brussels Convention of 1924. The Wisby Rules expanded the scope of the Hague Rules, providing for their application to any bill of lading. The Rules of 1968 fixed the norms on strengthening the liability of the carrier, on increasing the limits of his liability, increased the negotiability of the bill of lading. In 1979, the Protocol amending the Brussels Convention of 1924 was adopted.

The 1978 UN Convention on the Carriage of Goods by Sea (Hamburg Rules) has a broader scope than the Hague Rules (covering the carriage of animals, deck cargo and dangerous goods). The Hamburg Rules have established an additional 13 mandatory elements of the bill of lading. All provisions of the Rules are mandatory. The principle of the presumption of guilt of the sea carrier, formulated in a general form (not in the form of a list of grounds excluding liability), has been established, the limits of its liability have been expanded. The rules on exemption from liability in case of a navigational error have been excluded from the Hamburg Rules. Compared to the Hague Rules, the limitation period for claims against the carrier has been extended. The Hamburg Rules contain a whole conglomeration of rules on arbitration and jurisdiction: the rule on multiple jurisdiction, the possibility of jurisdiction at the choice of the plaintiff, the rejection of the practice of resolving the issue of jurisdiction on the basis of a prorogation agreement of the parties, the possibility of arbitrating a dispute in the presence of an arbitration clause.

Sea carriage of passengers is regulated by the Athens Convention on the Carriage of Passengers and Their Luggage by Sea, 1974. The Convention defines the concept of international carriage of passengers. The Athens Convention adopted many of the norms of the Brussels Convention - the carrier's liability for damage, the principle of the carrier's pre-summable fault, the establishment of the limits of his liability and exemption from liability in case of guilty behavior of the passenger. The burden of proof is on the carrier. The Athens Convention provides for the possibility of increasing the limits of the carrier's liability on the basis of an express written agreement between the passenger and the carrier. The norms of the Convention introduce a new concept of "cabin luggage". Currently, the IMO Legal Committee is developing a draft Protocol on financial security to the Athens Convention, which provides for changes in the procedure for calculating the limits of the carrier's liability.

7.6. Relationships associated with the risk of navigation

General average is one of the most ancient institutions of maritime law (VIII century BC). This concept is based on the definition of general average damages and the idea that expenses incurred reasonably and intentionally for the general salvation of all participants in maritime transportation (i.e., the maritime enterprise), regardless of who they were made, should be distributed between the "ship , cargo and freight" in proportion to the value of the property belonging to each. General average (general average losses) are losses incurred by any of the participants of the marine enterprise as a result of a part of the cargo being thrown overboard, etc. and subject to distribution among all participants of the marine enterprise.

The regulation of relations in general average involves the rejection of the application of conflict of laws rules. The main role here is played by a private unofficial codification of the uniform customs of merchant shipping and navigation - the York-Antwerp Rules of 1949 on general average (as amended in 1950, 1974 or 1994). The York-Antwerp Rules are a set of international custom regarding what may be considered general average damages and how their distribution is determined.

The application of the York-Antwerp Rules depends on a special agreement between the parties to the contract of carriage. Such an agreement is fixed in the terms of the charter or bill of lading. The parties may, on the basis of an agreement, amend and supplement the York-Antwerp Rules and apply them in any edition. Most of the norms of national laws on general average are dispositive in nature, which makes it possible to apply the York-Antwerp Rules practically without limit. The legislation of some states provides for the subsidiary application of these rules.

The dispositive nature of national laws is the basis for the validity of the York-Antwerp Rules for the Interpretation of General Average. Their application excludes the operation of any laws or customs that are contrary to the Rules. The Jackson clause is an example of a change in the York-Antwerp rules (the share of general average losses can be charged to the cargo owner even when the cause of general average was a navigational error). The York-Antwerp Rules are limited in scope and do not govern all matters of general average.

The absence of agreement between the parties on the application of the York-Antwerp Rules constitutes the basis for the determination of general average under national law. In this case, there is a need for conflict regulation. Collision bindings used in general average differ in their content from traditional conflict principles. For example, a special conflict of laws concept has been established "the port where the ship ends the voyage" - this is the port where the carriage of goods by a foreign ship has ceased, because this port is the port of destination, or because the ship was unable to continue transportation and forced to unload at this port. The law of the port of unloading is the dominant conflict binding in determining the type of accident and the distribution of general average losses, since there is a close relationship between the content of legal relations in general average and the port of unloading.

General average relations are also regulated at the convention level: for example, according to the Montevideo Agreement on the Law Applicable to International Merchant Shipping, 1940, general average is established and distributed at the port of destination, and if it is not reached, then at the port of discharge. An exception to this principle is the application of the national law of the ship, i.e. the law of the flag. Two different national laws (Italian law, Bustamante Code) may apply to the same legal relationship in general average. In world judicial practice, multiple qualifications of the law of the port of unloading cargo after an accident have been adopted: the law of the location of a thing, the law of unjust enrichment, the law of the place of performance of the contract.

Collision of ships and salvage at sea are regulated on the basis of multilateral international agreements. One of the oldest is the 1910 Brussels International Convention for Combining Certain Rules Regarding Ship Collisions. Responsibility is based on the principle of guilt. It is possible to inflict losses on the victims. The Convention introduces the concept of "proportionate degree of guilt". It has been established that in different cases of collision of ships it is necessary to apply different conflict bindings (the law of the place of collision, the law of the flag, the law of the court, the law of the flag of the injured ship). The 1910 Brussels International Convention for the Incorporation of Certain Rules Relating to Assistance and Salvage at Sea (and its 1967 Protocol extending the scope of the Convention) contains unified substantive and conflict of law rules defining acts that constitute salvage. Collision bindings - the same as in the collision of ships. Provided for the application of the law of the flag of the vessel that provided assistance. The general conflict rule during salvage is the law of the flag of the vessel that carried out the salvage.

The institution of limiting the shipowner's liability is a specific institution of maritime law, due to the risk of navigation. The goal is to limit and reasonably distribute the consequences of such a risk. The shipowner has the right to limit his liability to certain limits for all major obligations related to navigation. The 1924 Brussels International Convention on the Unification of Certain Rules on the Limitation of the Liability of the Owners of Sea-Going Vessels establishes the principle of limiting the liability of the shipowner. However, the International Convention on the Limitation of Liability of Ship Owners of 1957 expands the range of requirements for which the ship owner is not entitled to limit liability. This provision is related to the rules on salvage at sea and compensation for damages in general average.

Topic 8. INTERNATIONAL PRIVATE MONETARY LAW

8.1. Financing of international business operations

Basically, in the Russian literature on PIL, the concept of "credit and settlement relations with a foreign element" is used, and not MCHVP. MCHVP is a relatively new concept in domestic jurisprudence. It has a somewhat paradoxical character, including both private and monetary law (currency law is a branch of public law). However, its application is quite justified, since we are talking about foreign exchange financing of private law activities.

MCHVP is an independent branch of PPP, which has a sustainable character, a special subject of regulation. IFIP is a set of rules governing the financing of international business activities. The concept of MCHVP originated in German legal science and is currently accepted by the doctrine and practice of most states. At the heart of the institutions of the MCHVP is the dependence of the implementation of international settlement and credit relations on the monetary policy of the state.

Russian legislation completely lacks conflict regulation of private currency relations with a foreign element. This is a serious shortcoming of our legislation, since when resolving conflict issues, the need to apply the analogy of law and law constantly arises. Financing of international commercial transactions is carried out on a general basis through the application of the currency legislation of the Russian Federation, the norms of part two of the Civil Code, which regulate the specifics of civil law settlement relations. In addition, the norms of international agreements governing relations in the field of financing foreign trade activities and international settlements are applied. Russia also participates in the 1997 Agreement on the Establishment of the CIS Payments Union.

Forms of financing international commercial activities - non-recourse financing, factoring, forfeiting, financial leasing. Financial (genuine) leasing is characterized by the fact that it covers a complex set of economic and economic relations, the participants of which are three parties: a manufacturing company, a user company (employer), a leasing company (landlord). The leasing company, under an agreement with the user company, acquires the necessary equipment from the manufacturer and leases it to the user company. Leasing operations are carried out mainly by financial companies or companies that are branches of banks, credit and insurance organizations.

As a form of financing commercial contracts, financial leasing is a special kind of agreement that combines elements of a loan agreement and a property lease agreement. The main goal of the 1988 Ottawa Convention on International Financial Leasing is to remove legal barriers caused by differences in national regulation to the development of international financial leasing. The principles of the Convention are the basis for the legal regulation of financing international transactions through financial leasing.

The main form of commercial financing is international factoring. The essence of international factoring is that the financial corporation releases the exporter from the financial burden of the export transaction. The purpose of factoring is to achieve an optimal international division of labor. The financial corporation (factor) acts as an intermediary. The value of international factoring as an intermediary financial transaction lies in the satisfaction of the factor of the rights of the creditor's claims at the expense of the amounts collected from the debtor on the commercial account of the creditor. Violation of the terms of the agreement is an offense of misappropriation of movable things. At the international level, this method of financing is regulated by the Ottawa Convention on International Factoring.

Forfaiting is a type of factoring. Factoring is mainly used to service transactions related to consumer goods, and forfaiting - related to machinery and equipment. The period of payment of obligations by the buyer for factoring is 3-6 months, and for forfaiting - 0,5-5 years. The factor does not take any risks on the transaction, and the forfeit takes all the risks. The discount rate for factoring is 10-12%, and for forfaiting - 25-30%. The factor does not have the right to transfer monetary obligations to third parties, while the forfait has such a right.

8.2. International payments, currency and credit relations

International monetary relations are relations that develop during the functioning of the currency in the world economy. They arise in the process of functioning of money in the international payment turnover. Monetary system is a form of organization and regulation of foreign exchange relations. There are national, regional and world monetary systems. The elements of the monetary system are the national currency unit, the exchange rate regime, the conditions for currency convertibility, the system of the foreign exchange market and the gold market, the procedure for international settlements, the composition and management system of gold and foreign exchange reserves, the status of national currency institutions.

Monetary policy is a set of measures and legal norms that regulate at the state level the procedure for performing transactions with foreign exchange values, the exchange rate, the activities of the foreign exchange market and the gold market. One of the most common forms of monetary policy is currency restrictions, which are state regulation of operations of residents and non-residents with currency values. Currency restrictions on current operations of the balance of payments do not apply to freely convertible currencies. Currency restrictions are fixed in the currency legislation and are an integral part of currency control. Ultimately, currency restrictions adversely affect the development of export-import operations.

The exchange rate is an important element of the monetary system, since international trade requires the measurement of the value ratio of national currencies. The exchange rate is necessary for the mutual exchange of currencies in international trade, comparison of world and national prices, for the revaluation of foreign currency accounts. The exchange rate is an additional element of state regulation of the economy.

Most foreign exchange transactions are made in the foreign exchange markets. Foreign exchange markets are official centers where foreign currency is bought and sold and other foreign exchange transactions are made. Foreign exchange markets are a collection of banks, brokerage firms, corporations, etc. 85-95% of foreign exchange transactions take place in the foreign exchange markets. The world's currency centers are concentrated in the world's financial centers (London, New York, Geneva, etc.). Operations with certain convertible currencies are carried out on regional and national currency markets.

Currency transactions are divided into cash and urgent. Cash foreign exchange transactions (SPOT) are cash transactions with immediate delivery of currency. These operations account for up to 90% of the volume of all foreign exchange transactions. Under SPOT transactions, currency is delivered to the accounts specified by the recipient banks. In practice, interbank foreign exchange transactions SPOT prevail, for which the wire transfer rate is applied. Urgent currency transactions (forward, futures) - currency transactions in which the parties agree on the supply of foreign currency after a certain period at the rate fixed at the time of the transaction. A forward is a contract for the delivery of financial assets in the future. Transactions are concluded in over-the-counter markets; participants expect to receive the goods themselves. Futures - a transaction for the purchase and sale of commodities and financial assets - is concluded on stock and currency exchanges, most often not for the purpose of the final purchase and sale of goods, but to make a profit due to the subsequent resale of the futures. Swap transactions are a variety of foreign exchange transactions that combine elements of both cash and futures transactions (SWOP = SPOT + forward).

Currency transactions in Russia are regulated by the currency legislation of the Russian Federation, which defines the concepts of foreign currency and currency values. Currency values ​​are foreign currency, securities in foreign currency, stock values ​​and other debt obligations in foreign currency, precious metals, natural precious stones. Currency values ​​are objects of civil rights and may be owned by both residents and non-residents. The right of ownership of currency values ​​is protected in the Russian Federation on a general basis. Residents are individuals who have a permanent place of residence in the Russian Federation; legal entities established under the laws of the Russian Federation with a location in the territory of the Russian Federation, their branches and representative offices located outside the Russian Federation; official representative offices of the Russian Federation located outside its borders. Non-residents are individuals who have a permanent place of residence outside the Russian Federation; foreign legal entities with a permanent location outside the Russian Federation, their branches and representative offices on the territory of the Russian Federation; official representations of foreign states on the territory of the Russian Federation.

Currency transactions in the Russian Federation are divided into current and related to the movement of capital. Current currency transactions - import and export of foreign currency; obtaining and granting financial loans for up to 6 months; international money transfers of commercial and non-commercial nature. The list of current currency transactions is exhaustive. Residents of the Russian Federation carry out current currency transactions without restrictions. Currency transactions associated with the movement of capital - direct and portfolio investments; transfers to pay for the transfer of ownership of real estate; obtaining and granting deferred payment and financial loans for a period of more than 3 months; all other currency transactions that are not current. The list of currency transactions related to the movement of capital is open. Such transactions are carried out by residents in the manner prescribed by the Central Bank of the Russian Federation.

The main body of currency regulation in the Russian Federation is the Central Bank of the Russian Federation. It defines the scope and procedure for the circulation of foreign currency and securities in foreign currency in Russia. Commercial banks play an important role in the implementation of monetary policy. Their main task is to provide financial services for the foreign economic activity of the clients of these banks. The norms of Russian currency legislation are of an administrative and legal nature, but at the same time they also have a civil law effect. These norms also apply to legal relations that, in accordance with Russian conflict of laws, are subject to foreign law. Foreign public law norms of currency law are very often recognized in courts and arbitrations if the actual composition of the transaction is related to the law of such a foreign state.

In most cases, the issue of applicable law is related to the extent to which national currency restrictions can be extraterritorial in nature, and can a transaction subject to currency restrictions be recognized as valid in another state? Here we are not talking about the application of foreign exchange law as such, but about the recognition (or non-recognition) of its civil law consequences. With regard to currency restrictions, conflict issues arise when the question is raised about the validity of a monetary obligation or the impossibility of its performance due to foreign exchange restrictions. Recognition of foreign exchange prohibitions is enshrined in the Charter of the IMF. Currency transactions relating to the currency of a state and prohibited by its currency legislation cannot receive administrative or judicial protection in other states.

International settlements is the regulation of payments for monetary claims and obligations arising in the field of international civil legal relations; These are payments for foreign trade operations. Of great importance for international settlements are the scale and specialization of foreign economic activity, the financial position and business reputation of partners, the presence of correspondent banks. The means of payment for international payments are the national credit money of the leading countries. National currencies, euros and SDRs are used as the basis for settlements. Factors influencing international settlements are currency legislation, international trade rules and customs, banking services, contract and loan agreement conditions, etc. Attempts are being made to unify the regulation of international settlements. In 2001, UNCITRAL drafted a Convention on the Assignment of Receivables in International Trade.

International credit relations are the relations of the parties in which the creditor undertakes to transfer currency values ​​​​for use to the debtor, and the debtor undertakes to return them or provide the creditor with appropriate compensation with the payment of interest on time and on the terms provided for in the agreement. The following forms of international lending are used: on the basis of special interstate agreements, a clearing system of interstate settlements, with the help of commercial banks and banks with foreign participation, loans from international banking consortiums. To formalize international credit relations, consortium agreements are used - agreements between groups of banks.

8.3. Forms of international payments

The main forms of international payments are advance payment, open account, bank transfer, letter of credit, collection. An advance is an advance payment for a product. The essence of the advance is that the exporter receives a loan from the importer. Open account - these are periodic payments after receiving the goods, as a rule, it is used for regular deliveries. A feature of settlements in the form of an open account is that the movement of goods is ahead of the movement of money. Settlements are divorced from commodity deliveries and are connected with commercial credit. This form of payment is especially beneficial for the importer. A bank transfer is an instruction from one bank to another to pay a certain amount to the transfer recipient or to transfer funds from the account and on behalf of the transferor in favor of the transfer recipient.

A letter of credit is an agreement between the issuing bank (executing bank) and the client (applicant of the letter of credit, beneficiary). Types of letter of credit - revocable, irrevocable, confirmed, unconfirmed, covered, uncovered, revolving, documentary, cash, payment, circular, compensatory. Requirements for letters of credit: all letters of credit must clearly indicate whether they are executed by immediate payment, installment payment, acceptance or negotiation; Each letter of credit must specify the executing bank that is authorized to make the payment, or the acceptance of drafts, or the negotiation. A transferable (transferable) letter of credit is a letter of credit under which the beneficiary has the right to ask the issuing bank that other persons - the second beneficiaries - can use the letter of credit.

In Russian law, settlements under a letter of credit are regulated by Art. 867-873 GK. International relations for settlements in a letter of credit are regulated on the basis of the Uniform Rules and Customs for Documentary Letters of Credit of 1993 and the Uniform Rules for Interbank Reimbursement for Documentary Letters of Credit of 1996 - unofficial codifications of international business customs produced by the ICC. Settlements in the form of documentary letters of credit are abstract. These relationships are legally independent of the underlying contract of sale.

A collection form of payment is a banking operation in which the bank, on behalf of the client, receives payment from the importer for goods shipped to him or services rendered and credits this money to the exporter's account. Types of collection operations: net collection and documentary collection. A net collection is a collection of financial documents not accompanied by commercial documents. A documentary collection is a collection of financial documents accompanied by commercial documents and a collection of commercial documents not accompanied by financial documents.

Collection operations are regulated on the basis of the 1996 Uniform Collection Rules, an informal codification of international business customs. In Russian law, collection settlements are regulated by Art. 874-876 GK.

International settlements are governed mainly by international custom (Uniform Rules for First Demand Guarantees 1992) and the MCP (UNCITRAL Model Law on International Credit Transfers 1992).

8.4. International settlements using a bill of exchange

A bill of exchange (draft) is a document containing an unconditional order of the creditor (drawer) to pay a certain amount of money to the person named in the bill (payer) within the period specified in the bill.

This is a written promissory note. The acceptor (importer or bank) is responsible for payment of the bill. The necessary properties of the bill, which determine its specificity, are abstractness, indisputability, negotiability. The bill is an absolutely abstract obligation, completely divorced from the grounds for its occurrence. In essence, the bill has the unconditional ability to act as a universal equivalent (monetary unit).

Types of bills - bill of exchange (draft), simple, nominal, warrant, bearer. A bill of exchange is a security containing a written order of the drawer (drawer) given to the payer (drawer) to pay a certain amount of money to the first bill holder (remittent). A bill of exchange is an unconditional order. This type of bill is the most common. One of the important features of a bill is an endorsement: an endorsement, according to which the bill can be transferred to any other person. An endorsement gives a bill of exchange the transferability property. An endorsement may be unconditional; any condition limiting it is considered unwritten.

In world practice, the bill appeared in the XII-XIII centuries. The wide distribution of the bill throughout the world predetermined the need for unification of bill of exchange law at the international level. The first such attempt was made at the beginning of the 1th century. at the Hague International Conference, culminating in the adoption of the Convention for the Unification of Law Concerning Bills of Exchange and Promissory Notes and the Uniform Charter (the documents did not enter into force).

In 1930, at the Geneva International Conference, three Conventions were signed: on a uniform law on a transferable and promissory note; on the resolution of certain conflict laws on transferable and promissory notes; on stamp duty on bills of exchange and promissory notes. These Conventions are based on bills of exchange legislation of the countries of the continental legal system. Their adoption made it possible to unify the bill of exchange law not only in Europe, but also in some countries of Asia, Africa and Latin America. The Geneva Convention on the Promissory Note and the Bill of Exchange approved the Uniform Bill of Exchange Law (Appendix to the Convention), which the participating States were obliged to put into effect on their territory.

The norms of the Geneva Conventions are dispositive in nature. The main content of the Conventions is the unified conflict of laws rules. The main goal is to resolve conflicts of bill laws. The system of main conflict bindings according to the Geneva Conventions:

1) the ability of a person to be bound by a bill of exchange and a promissory note is determined by his national law, the use of references of both degrees is possible;

2) a person who does not have the ability to be bound by a bill under his national law, is liable if the signature is made in the territory of the country under the legislation of which this person has such ability;

3) the form of a promissory note or a bill of exchange is determined by the law of the country where the bill of exchange is issued;

4) the form of the obligation under a bill of exchange and promissory note is determined by the law of the country in whose territory the obligation is signed;

5) if the obligation under the bill is not valid under the law of the state of the place of signing, but complies with the legislation of the state where the subsequent obligation is signed, then the last obligation is recognized as valid;

6) each Member State has the right to establish that an obligation under a bill of exchange accepted by its citizen abroad is valid in respect of another of its citizens in the territory of that State, if the obligation is accepted in a form consistent with national legislation;

7) the obligations of the acceptor of a bill of exchange or the person who signed the promissory note are subject to the law of the place of payment for these documents;

8) the time limits for filing a claim by way of recourse are determined for all persons who put their signatures by the law of the place where the document was drawn up;

9) the acquisition by the holder of a bill of exchange of the right of claim, on the basis of which the document was issued, is decided by the law of the place where the document was drawn up;

10) the form and terms of the protest, the forms of other actions necessary for the exercise or preservation of rights under a bill of exchange or promissory note, are determined by the law of the country in whose territory the protest or the corresponding actions are to be committed;

11) the consequences of the loss or theft of a bill of exchange are subject to the law of the country where the bill is to be paid.

Great Britain, the USA, other states of the common law system have not joined the Geneva Conventions. Currently, there are two types of bills of exchange in international trade - Anglo-American (the English Bills Act of 1882 and the Uniform Commercial Code of the United States) and a bill of the Geneva Convention type. In addition, there is a whole group of countries that have not joined any of the existing systems of bill of exchange regulation.

With a view to the most complete unification of bill of exchange law and smoothing out the main differences between the prevailing types of bills of exchange, UNCITRAL developed a draft Convention on International Bills of Exchange and International Promissory Notes. The convention was approved in 1988 by the UN General Assembly. The subject of the Convention is an international bill of exchange and an international promissory note, which have a double mark and are respectively entitled: "International bill of exchange (UNCITRAL Convention)" and "International promissory note (UNCITRAL Convention)".

An international bill of exchange is a bill in which at least two of the five listed places located in different states are named:

1) issuing a bill of exchange;

2) indicated next to the drawer's signature;

3) indicated next to the name of the payer;

4) indicated next to the name of the recipient;

5) payment.

It is assumed that the place of issue of the bill or the place of payment is named in the bill and such a place is the territory of a state party to the Convention. An international promissory note is a bill in which at least two of the four listed places located on the territory of different states are named:

1) issuing a bill;

2) indicated next to the drawer's signature;

3) indicated next to the name of the recipient;

4) payment.

It is assumed that the place of payment is named in the bill and is located in the territory of the State Party. The provisions of the UNCITRAL Convention are of a compromise nature: they take into account either the provisions of the Geneva Conventions, or the Anglo-American bill regulation, or the Convention introduces novelties into the law of bills. The UNCITRAL Convention does not apply to checks because (following the traditions of civil law) it does not treat a check as a type of bill of exchange (as opposed to common law).

In Russian legislation, the legal status of a bill is enshrined in Art. 142-149 GK. Unfortunately, in domestic law there is no conflict regulation of bill relations. Since Russia is a party to the Geneva Conventions and the UNCITRAL Convention, it can be concluded that to bill relations with a foreign element in accordance with Art. 7 of the Civil Code, the norms of these international agreements are directly applied.

8.5. International payments using a check

A check is one of the types of securities and at the same time one of the types of payment documents. A check is a security containing an unconditional order of the drawer of the check to the bank to pay the amount indicated in it to the holder of the check (paragraph 1 of article 877 of the Civil Code). The drawer is the owner of the bank account. Usually a check is drawn at a bank, where the drawer has funds that he can dispose of by means of a check. The check is paid at the expense of the drawer and cannot be accepted by the payer. The inscription on acceptance made on the check is considered non-existent. A check refers to monetary documents of a strictly established form (in the Russian Federation, a sample of a check is approved by the Central Bank of the Russian Federation).

The check must have a number of necessary details, the absence of which may lead to the recognition of the check as invalid and not payable, since the check is a strictly formal document. Details of the check - the name of the document "check" (check mark); a simple and unconditional offer to pay a certain amount to the bearer of a check (check order); the check order must be unconditional (the holder of the check is not obliged to present any documents or fulfill any obligations under the threat of invalidating the check); indication of the payer (bank) to make the payment and indication of the account from which the payment is made; check amount; the date and place of its compilation; signature of the drawer.

Since the check is already in the XIX century. began to play the role of one of the main means of international settlements, then in the first half of the XX century. an attempt was made to unify check law: in 1931, the Geneva check conventions were adopted (Convention establishing a uniform law on checks; Convention aiming to resolve certain conflicts of laws on checks; Convention on stamp duty in relation to checks) and the Uniform check law (Appendix to Convention on a Uniform Law on Checks). The main content of these Conventions is unified conflict of laws rules that establish a system of conflict of law regulation of check law:

1) the right of a person to be bound by a check is determined by his national law;

2) if a person is not entitled to be bound by a check under his national law, he may be bound by a check abroad, if the legislation of that foreign state allows it;

3) the circle of persons on whom a check may be issued is determined by the law of the country where the check is to be paid;

4) the form of the check and the procedure for the emergence of check obligations are determined by the law of the country where the check was signed, while it is sufficient to comply with the form required by the legislation of the country of the place of payment;

5) the term for presenting a check for payment is governed by the law of the place of payment;

6) the possibility of paying a check at sight, the right to accept a check and receive a partial payment, the right to withdraw a check are determined by the law of the place of payment;

7) the consequences of the loss or theft of a check are governed by the law of the place of payment;

8) the forms and terms of the protest and other actions necessary for exercising or maintaining the rights under the check are determined by the law of the state in whose territory the protest and the corresponding actions are to be made.

The Geneva Check Conventions failed to completely unify check law - they, like the Geneva Conventions, do not involve common law countries. The main contradiction of continental and Anglo-American check regulation: Anglo-American law - a check is a kind of bill of exchange, continental law - a check is an independent type of securities and negotiable documents. Simultaneously with the draft Convention on the International Bill of Exchange, UNCITRAL developed a draft Convention on the International Check within the framework of UNCITRAL. In 1, the International Check Convention was approved by the UN General Assembly. The provisions of this Convention are of a compromise nature. They represent an attempt to unify the norms of continental and Anglo-American check law. The very understanding of a check corresponds to continental law: a check is not considered a type of bill of exchange. The main conflict bindings of a check in accordance with the Convention are personal law and the law of the place of registration of the act (form of the act).

In Russian legislation, settlements using a check are regulated by Art. 877-885 GK. There is no conflict regulation of check law issues. Since Russia does not participate in the Geneva Check Conventions (although the provisions of the Civil Code on settlements by checks fully comply with the norms of the Conventions), apparently, conflict regulation of these problems is possible based on the application of the analogy of the law - the Geneva Bills of Exchange Conventions.

8.6. Legal specifics of monetary obligations

Almost all legal relations in PIL (with the exception of personal non-property, and even then not always) are accompanied by monetary obligations. In this regard, the currency status of the transaction stands out - a set of issues that determine the legal status of monetary obligations in a legal relationship. In the legislation of many states there is a special, special conflict "currency" binding - the law of the debt currency (there is no such binding in Russian law). The idea of ​​this binding is that the obligation expressed in foreign currency, on all monetary issues (primarily on the issue of inflation) is subject to the law of the state in whose currency the obligation is concluded (Introductory Law to the GGU). In addition, the currency peg, in conjunction with other terms of the transaction, is used to localize the contract - to establish the intention of the parties to subordinate the transaction as a whole to the legal order of the state in whose currency the transaction was concluded.

Illustrative in this regard are the court decisions made in some states in connection with settlements on government bonded loans denominated in gold dollars. In the 1937 decision in the case of the International Association of Holders of British Crown Loans, the English House of Lords recognized that debts on British government bonds issued in New York in gold dollars were subject to American law. Similar judgments have been issued by the courts of Sweden and Norway.

The main question of the content of monetary obligations is the question of the impact on them of changes in the purchasing power of money. In Great Britain in 1604 and in FGK b^1l, the principle of "nominalism" was formulated: monetary obligations, expressed in a certain amount, are unchanged in their amount, regardless of changes in the purchasing power of money. Initially, this principle was applied only in domestic settlements, but later its application was extended to monetary relations with a foreign element. The principle of nominalism is a generally recognized principle; it is enshrined in national and international law. For example, the English Bill of Exchange Act of 1882, the Geneva Bills of Exchange Conventions of 1930 and the Geneva Check Conventions of 1931 establish that a bill and a check drawn in a foreign currency provide for payment at the rate on the date of maturity, and not at the rate on the day the bill or check is drawn up. These acts provide for the calculation at face value. With any changes in foreign currency, the amount of a bill or check remains unchanged.

The principle of nominalism leads to the uncertainty of the value content of monetary obligations and does not meet the needs of international trade. The application of this principle endangers the interests of the creditor and stimulates the conclusion of transactions in "weak" currencies. Currently, the principle of nominalism is optional and refers to the "implied" terms of the contract, it applies if there are no special protective clauses in the contract. The development of foreign economic activity implies the need to stabilize the value content of obligations, especially considering inflationary processes and their impact on the content of monetary obligations. For these purposes, numerous protective clauses and the concept of "conventional unit" have appeared.

The first type of safeguard clause was the "gold" clause. Its types:

1) a clause on the payment of some part of the debt in a certain gold coin (for example, payment of 100 US dollars in a US gold coin of standard weight and fineness at the time of the conclusion of the contract);

2) a clause on payment in banknotes, which will be in circulation on the day of payment, but in an amount equivalent to a certain weight of gold (for example, payment in US dollars in an amount equivalent to 5 g of standard gold at the time of conclusion of the contract).

The golden clause failed to become an effective way to guarantee the value content of monetary obligations. Many states unilaterally declared this clause null and void with respect to all commitments made (Germany in 1918, Great Britain in 1923, USA in 1933). The cancellation of the gold clause is associated with the transition from the gold exchange standard to paper money circulation. The power of the state to annul the gold clause is universally recognized; it is enshrined in international law, and in national legislation, and in judicial practice.

Currently, monetary and financial conditions are used as a safety mechanism against inflationary processes, which are the requisites of any foreign trade contract. Currency conditions include the establishment of: the currency of the price and the method of its determination, the currency of payment, the procedure for converting currencies in case of a mismatch between the currency of the price and the currency of payment, protective clauses.

The price currency is the currency in which prices for goods (services) are determined. The price in the contract can be set in any currency: one of the participants in the transaction or a third country. Preference is given to freely convertible currencies of developed countries as the most stable. However, such currencies are also subject to inflation, and fluctuations in their rates can reach 20-30%. The currency of payment is the currency in which the obligation of the importer must be settled. The best option is to match the currency of the price and the currency of payment. In this case, there is no need for any conversions, however, any currency can in principle be chosen as the currency of payment. In case of instability of exchange rates, the price currency is set in the most stable currency, and the payment currency - in the currency of the importer. In case of currency mismatch, it becomes necessary to recalculate the price and payment. The contracts indicate at what rate this recalculation will be made.

If during the period between the signing of the contract and the payment on it, the exchange rate of the payment currency changes, then one party incurs losses, while the other makes a profit. The very choice of the currency of the price can protect against currency risks, since the mismatch between the currency of the price and the currency of payment is the simplest way to insure currency risk. The exporter bears the risk of price currency decrease, the importer bears the risk of its increase. For the exporter, it is more profitable to set the price in a "strong" currency, then by the time of payment, his revenue will be higher than that which was at the time of the transaction. It is more profitable for the importer to set the price in a "weak" currency, then he will have to pay less when paying than at the time of the contract. However, this safeguard is difficult to take advantage of: some goods are priced in certain currencies, it is difficult to calculate exchange rate movements, the interests of the importer and exporter are opposed, and it is difficult to reach an agreement.

Another protective measure is the simultaneous conclusion of export and import contracts in the same currency with approximately the same payment terms. In this case, export losses are offset by import profits, and vice versa. However, it is practically impossible to achieve a complete balance between receipts of goods and payments. In addition, under the conditions of the international division of labor, enterprises are dominated by either exports or imports. It is possible to reduce currency risks by concluding a contract in different currencies with opposite trends in exchange rates.

These methods of protection are of an auxiliary nature and in modern practice are used as subsidiary measures. A more reliable way to protect against currency risks are special protective clauses and hedging. Currently, special protective clauses are mainly used.

1. Currency clause. The payment currency is tied to a more stable currency, and the payment amount depends on the change in its exchange rate. To designate a more stable currency, the term "conditional unit" is used. Direct currency clause - the currency of the price and the currency of payment are the same, and another, stronger currency is used as a peg. A direct currency clause can be bilateral (the amount of payment changes with any change in the exchange rate: both with an increase and with a decrease) and unilateral (the amount of payment changes only with a decrease in the exchange rate). Indirect currency clause - the currencies of the price and payment do not match. The price is fixed in a stronger currency, and the payment currency, as a weaker one, is tied to the price currency, i.e. the payment amount depends on the change in the exchange rate of both currencies.

2. A multi-currency clause is a more reliable way to insure currency risks. The payment currency is linked to several currencies, i.e. to a "basket of currencies". Accordingly, the payment amount varies depending on the change in the exchange rate of the payment currency in relation to the average exchange rate of several currencies. This clause is rarely used, since the calculation methodology is characterized by increased complexity. Much more often, instead of a currency basket, conditional international units of account (SDR, ECU, euro) are used. SDRs were established by the IMF in 1 as a safety net to protect the creditor from the effects of inflation. Russian law (Article 1967 of the Civil Code) provides for the possibility of using both currency and multicurrency clauses.

3. Escalator clause (sliding price clause). The contract includes a condition that the prices of the goods may be revised due to changes in the costs of its production.

4. Index clause (price revision clause). Prices for a product may be revised depending on the movement of market prices for this product. Escalator and index protection clauses not only limit foreign exchange losses associated with changes in the exchange rate, but also protect against a fall in the purchasing power of national currencies due to inflation and rising prices.

Topic 9. INTELLECTUAL PROPERTY IN PRIVATE INTERNATIONAL LAW

9.1. The concept and features of intellectual property

Intellectual property right is a conditional, collective concept that combines copyright and industrial property rights. Objects of intellectual property rights are a complex of objects of copyright and industrial property rights. Thus, intellectual property law as an independent branch of PIL combines two sub-sectors - copyright and industrial property law. Specific regulation of legal relations related to intellectual activity is carried out in national law not in accordance with the legislation on property, but in accordance with the norms of copyright and invention law. Objects of intellectual property rights are all rights related to inventions, discoveries, industrial designs, trademarks, trade names; protection against unfair competition; rights to literary, artistic and scientific works; other rights related to intellectual activity in the industrial, scientific, literary and artistic fields.

The concept of "intellectual property" is defined in the Convention Establishing the World Intellectual Property Organization of 1967. However, specific ways of regulating and protecting copyright and industrial property rights (components of intellectual property rights) are provided for in special international agreements on copyright and industrial property law. The legal status of intellectual property as a whole is also defined in the 1993 Agreement on Trade-Related Aspects of Intellectual Property Law (the TRIPS Agreement was adopted at the GATT/WTO Uruguay Round). Objects of protection - copyright and related rights, patent and invention law, know-how. Features of intellectual property rights in PIL are the exclusive nature of non-property rights, specific conditions for the inheritance of part of the rights, limitation of the duration of the possession of rights, the possibility of transferring property rights under an agreement. In Russian law, the legal status and concept of intellectual property are enshrined in Art. 71 of the Constitution and art. 138 GK.

There are two main branches of exclusive rights that have their own systems of protection: the form as a result of creative activity (protected by copyright) and the essence of creative activity (protected by invention right). Accordingly, there are two systems of protection: factual (copyright arises by virtue of the very fact of creating a work, "a work separates itself") and registration (industrial property right, which must be accompanied by special actions to isolate the result, its registration). At present, the third system for the protection of the results of intellectual activity has been established, relating to production secrets (know-how). Protection extends to the content of the object, but is carried out without registration. Within the framework of the factual system of protection, there is an intermediate, "facto-registration" subsystem (protection of computer programs).

A foreign element in intellectual property law can manifest itself in only one variant - the subject of this right is a foreign person. This state of affairs is due to the fact that intellectual property rights are strictly territorial in nature. It arises, is recognized and protected only on the territory of the state where the work is created, the invention is registered or the secret of production is discovered (in invention law, the territorial character is more prominent than in copyright law). The only way to overcome the territorial nature of this right is to conclude international agreements (universal, regional and bilateral) on the mutual recognition and protection of rights to the results of creative activity that have arisen in other states. The specifics of the legal regulation of intellectual property rights as a branch of PIL lies in the most significant role of the MPP than in all other branches of PIL. It is necessary to note the special role and importance of WIPO and other international organizations whose functions include the regulation of the international protection of intellectual property rights.

9.2. Specifics of Copyright in Private International Law

Copyright can be defined as a set of legal norms governing the use of works of literature, science and art. The objects of copyright are works of literature, science and art, computer programs and databases. In addition, the list of objects of copyright includes the so-called "related rights" (related, similar) - the rights of performing artists, producers of phonograms, broadcasting organizations. Copyright, which has arisen in the territory of one state in accordance with its legislation, is distinguished by a strictly territorial character. It is valid only within the state and does not operate outside its jurisdiction. This, from the point of view of PIL, is the main difference between copyright and other types of civil rights.

If, for example, a literary work published in one state is republished in another without the consent of the author, it is considered that the author is not entitled to claim violation of his subjective right. The reprinting of a work abroad does not violate the subjective rights of the author, since these rights are strictly territorial. In order for subjective copyrights that have arisen under the law of one state to be recognized and protected on the territory of other states, it is necessary to conclude an international agreement on mutual recognition and protection of copyrights. Only such agreements are the basis for the recognition of foreign copyright. At the same time, it should be borne in mind that such agreements provide only recognition and protection of subjective copyrights arising on the basis of foreign law, but not their occurrence on the territory of a given state. In order for an author to be able to claim copyright abroad, his work must be published in the relevant country. Subjective copyright in the territory of any state arises only on the basis of local legislation.

Features of copyright are in their division into exclusive and non-exclusive. From the point of view of PIL, exclusive copyrights are of particular interest: the right of authorship, the right to a name, publication, recall of a work, protection of the author's reputation, the right of access, the right to translate, distribute and reproduce, remake, import, public display and public performance, the right to follow . Exclusive rights have both personal non-property and property character. Subjects of copyright are persons who have exclusive rights to a work and their heirs. Subjective copyright can also be divided into property and personal non-property. Property rights, as a rule, have a subordinate value. Personal non-property rights belong to the author regardless of his property rights and are retained by him in case of assignment of exclusive rights to use the work.

The territorial nature of copyright predetermines the nationality of the work, which does not depend on the nationality of the author, but is determined by the place of creation of the work. The principle of the nationality of a work is one of the main principles in copyright law. As a general rule, foreigners in the field of copyright enjoy national treatment. If the work of a foreign author was published on the territory of a given state (and was not previously published abroad), then such an author is usually recognized for all those rights that arise from local legislation. As a rule, the conditions for granting national treatment to foreign authors are contained in both national law and international agreements. International agreements basically provide for mutual (on the terms of material reciprocity) granting of national treatment.

The conflict-of-laws regulation of copyright is determined by domestic law. The law of many states contains conflict of law rules relating to intellectual property. For example, the Law on International Private Law of Switzerland in 1987 determines that the law of the state where copyright protection is requested is applied as the initial conflict of laws to legal relations in the field of intellectual property. This conflict binding is connected with the territorial nature of copyright. The conflict bindings of the law of obligations (in relation to contracts on intangible rights) and the law of the court (in accordance with the general concept of tort obligations) are applied subsidiarily. The Swiss Law also provides for the application of both degrees to these legal relations.

The scope of distribution of copyright by foreigners on the territory of Russia is regulated by the Law of the Russian Federation of July 09.07.1993, 5351 No. 1-XNUMX "On Copyright and Related Rights". Subjective copyrights arising on the basis of a foreign law are recognized and protected on the territory of the Russian Federation in the presence of an international agreement and on the basis of reciprocity. The specifics and conditions for the protection of copyrights with a foreign element lie in the fact that they are determined by the law of the state in whose territory the legal fact took place, which served as the basis for the emergence of copyright. Recognition of copyright is based on the principle of the nationality of the work, but the nationality of the author is also taken into account:

1) in relation to the works of foreign authors published for the first time in the territory of the Russian Federation, copyright is recognized for foreign authors;

2) copyrights of Russian citizens to works created abroad are recognized for these citizens;

3) the copyright of foreigners to works created abroad is recognized in the Russian Federation only if there is an international agreement.

There are two different regimes for works by foreign authors published abroad for the first time in Russia.

1. Protected works are works published after May 27, 1973 (the date when the Universal Copyright Convention of 1952 entered into force for the Russian Federation); works falling under the scope of the Berne Convention for the Protection of Literary and Artistic Works of 1886, first published after March 13, 1995 (the date of entry into force of this Convention for the Russian Federation); as well as works subject to bilateral agreements of the Russian Federation on mutual recognition and protection of copyright (with Austria, Bulgaria, Hungary, Cuba, Sweden, etc.). The regime of such works is determined both by the norms of Russian law and by the provisions of international agreements. Except in cases where there are unified substantive legal norms in international treaties, Russian copyright law is applied to such works by virtue of the principle of national treatment.

2. Unprotected works are works that are not subject to the Universal and Berne Conventions and bilateral treaties of the Russian Federation. The authors of such works are not entitled to claim payment of remuneration for their publication in Russia.

Bilateral agreements of the Russian Federation on mutual recognition and protection of copyrights provide for mutual protection of intellectual property rights based on the principles of reciprocity and non-discrimination. The protection of intellectual property rights is based on the application of the principle of material reciprocity. Each country recognizes the copyrights of its citizens, regardless of the place of first publication of the work, and the copyrights of citizens of third countries published in the territory of the contracting states.

Legal protection of copyright and related rights of foreigners in the Russian Federation is carried out in the administrative order, in the order of civil and criminal proceedings. It is possible to bring the violator of copyright to administrative responsibility. RAO represents the legitimate interests of the authors in state and other bodies. The Criminal Code provides for the possibility of bringing to criminal liability for the appropriation of authorship (plagiarism), illegal reproduction of works (counterfeiting), distribution of someone else's work and other types of illegal use of objects of copyright and related rights.

9.3. International copyright and related rights protection

The territorial nature of copyright is a serious obstacle to international cooperation in the field of the exchange of the results of creative activity. The need for international legal protection of copyrights and their recognition in the territory of other states became obvious more than 100 years ago. In this regard, the unification of copyright began already in the 1886th century. In 1971, the Berne Convention for the Protection of Literary and Artistic Works was adopted (in force as amended in 1995). The participating States established the Berne Union for the protection of the rights of authors of literary and artistic works. Its administrative functions are performed by WIPO. Russia joined the Berne Convention in XNUMX.

The basis of the Convention is substantive law on protected works and their authors. Conflict regulation - the application of the law of the country where copyright protection is sought, or the law of the court.

When determining the subjects of protection, the Berne Convention uses the territorial principle of protection. Preference is given to the country of origin of the work (country of first publication). The decisive feature is not the nationality (citizenship) of the author, but the nationality of the work, however, in some cases, the nationality of the author is also taken into account. Authors from member countries of the Union enjoy in other countries of the Union (other than the country of origin of the work) in relation to their works the rights that their own citizens enjoy in these countries (i.e. national treatment), as well as the rights specifically provided for in the Convention. The same protection is granted to authors who are citizens of states outside the Union if their works are published in one of the countries of the Union.

Protection for unpublished works is granted only to citizens of the member states of the Union. Thus, the Convention defines different conditions for the protection of published and unpublished works.

The maximum term of copyright protection is the lifetime of the author and 50 years after his death. It is possible to increase the terms of protection in accordance with national legislation. In the event of a dispute over the duration of protection, the law of the state of the first publication of the work shall apply. For translations, photographs, films and other objects, the terms of protection have been reduced.

The distinctive features of the Berne Convention are significant restrictions on the free use of works, the existence of a number of formalities for registering works, the retroactive effect of the provisions of the Convention (however, each state determines the application of this principle on its territory). Objects of protection - the author's rights to all works in the field of literature, science and art, expressed in any way and in any form. The Convention establishes an approximate (non-exhaustive) list of types of such works.

From the point of view of the formal conditions for the protection of copyright in a work, the Berne Convention adheres to the concept of European law, expressed in the national legislation of most European countries. The emergence of protected copyrights is not connected with the fulfillment of any formalities. The right of ownership of an intangible thing arises from the mere fact of creating a work.

The scope of copyright is determined by the law of the state where protection is sought. In this case, the author is granted national treatment and special rights provided for in the Berne Convention. The scope of protected rights does not depend on the protection of the work in its country of origin. This applies to both substantive rights and judicial protection. The right to judicial protection is based on the principle of national treatment.

The Berne Convention is an extremely high international standard for copyright protection, so its provisions have proven unacceptable to developing countries. It is not economically advantageous for such states to accede to the Convention, since such a high level of copyright protection for translations and other uses of foreign works is practically unattainable for them.

In 1952, at the initiative of UNESCO, the World (Geneva) Convention on Copyright (the current edition of 1971) was adopted, which is more universal than the Berne Convention. Russia has been participating in this Convention since 1973 as the assignee of the USSR. The preamble of the Convention emphasizes that its purpose is to complement the existing rules of international copyright law, but not to replace or violate them. The World Convention contains a large number of references to national legislation, a smaller volume of substantive legal prescriptions than in the Berne Convention. There is no need for countries party to the World Convention to change their specific national copyright systems.

The World Convention establishes a number of significant benefits for developing states: the issuance by the state of compulsory licenses for the translation of works in order to develop national science, culture and education; the right to freely translate the work after 10 years after its publication; freedom of radio and television broadcasts and free use of published works for educational and scientific purposes. The provisions of the Convention are not retroactive. The term of copyright protection is determined by the law of the state in which protection is sought, but not shorter than the life of the author plus 25 years after his death. The principle of time comparison has also been established.

The Convention contains an approximate list of protected objects of copyright, which fully coincides with the list defined in the Berne Convention. The World Convention introduces the concept of "release of a work to the public" as its reproduction in any material form and the provision of an opportunity for an indefinite circle of persons to familiarize themselves with this work. A special sign of copyright protection (copyright) has been introduced in the form of a symbol, an indication of the copyright holders, the year of the first release of the work.

The World Convention (like the Berne) proceeds from the principle of national treatment. The scope of copyright is determined by the national legislation of the Member States. The Universal Convention establishes the only special right of the author - the exclusive right of the author to translate and republish his work. To obtain the right to translate someone else's work, a special licensing system has been created. The World Convention provides for an identical Berne conflict regulation - the application of the law of the state where copyright protection is sought, or the law of the court.

In 1996, the Geneva Diplomatic Conference adopted a new universal treaty, the WIPO Copyright Treaty. This Treaty established a fundamentally different, higher level of copyright protection: the legal protection of copyright is directly related to the stimulation of literary and artistic creativity. For the first time in world practice, it is indicated that protection extends not only to the form of expression of a work, but to ideas and processes; the objects of protection are computer programs, compilations of data or other information as the results of intellectual activity, "rights management information" attached to the work. Particularly emphasized is the need to develop modern international rules for the protection of copyright and maintain a balance between the rights of authors and the interests of society in the field of access to information. The WIPO Treaty is a kind of addition to the Berne Convention. In accordance with the Treaty, a special Assembly and the International Bureau of WIPO have been established.

A special place among universal international treaties is occupied by the Madrid Convention for the avoidance of double taxation of royalties of 1979, which provides for the prohibition of double taxation of both copyright and related rights.

Among the regional agreements on the international legal protection of copyright should be noted the Inter-American Convention for the Protection of Copyrights of 1946, EU regulations and directives (EU Council Directive on the legal protection of computer programs in 1991), the Agreement of the CIS countries on cooperation in the field of copyright protection 1993

Separation of related (similar, related, other neighboring) rights from copyright and the establishment of their independent protection is associated with the spread of "intellectual piracy" (secondary use of a work without the consent of the author and performer, illegal copying and sale of phonograms). Subjects of "related" rights are performing artists, producers of phonograms, broadcasting organizations. The main forms of protection of related rights are the right of their subjects to allow or prohibit the secondary reproduction of the results of their creative activity.

International legal unification in the field of related rights - International (Rome) Convention for the Protection of the Interests of Performing Artists, Producers of Phonograms and Broadcasting Organizations of 1961 (based on the principle of national treatment, which is granted under the laws of the country where protection is sought). The Rome Convention established a minimum level of protection for related rights. The Convention is not retroactive. The minimum term of protection is 20 years (states are free to establish longer terms of protection). All copies of phonograms issued or intended for sale must have an international mark of protection of related rights.

The 1971 Geneva Convention for the Protection of Producers of Phonograms against Unlawful Reproduction of Their Phonograms substantially updated and supplemented the Rome Convention by granting producers of phonograms a special regime of antitrust and criminal protection. The states-participants of the Geneva Convention refused to provide foreigners with national treatment. The criterion for choosing the applicable law is the law of the state of nationality of the phonogram producer. All legal forms of protection are within the competence of the member states.

The 1996 WIPO Performances and Phonograms Treaty (open for signature only to WIPO members) does not affect the obligations of states under other conventions for the protection of related rights, does not affect the rights of authors, and applies only to performers and producers of phonograms. The term of protection of related rights is 50 years. The range of their exclusive rights has been considerably expanded. The Treaty is based on the principle of national treatment of protection: each State Party grants citizens of other States the same treatment that they grant their own citizens with respect to the exclusive rights of performers and producers of phonograms listed in the Treaty.

9.4. Specifics of industrial property law in private international law

In the doctrine, various terminology is used to designate this branch of PIL - invention, patent, license law, industrial property law. It seems that the concept of "industrial property law" can be used as generic, the most broad, voluminous and precise. Industrial property law is a part of intellectual property law. Objects of industrial property rights - scientific discoveries, inventions, industrial designs, trademarks, trade names, service marks, commercial designations, suppression of unfair competition, utility models, appellations of origin, trade and production secrets (know-how), as well as all other rights related to intellectual activity. The marginal place is occupied by computer programs, databases and topologies of integrated circuits, which are considered copyright objects, but are protected within the patent office.

The concept of "industrial property" does not fall under the general concept of property rights. The specificity of industrial property lies in the fact that it is, as a rule, an intangible object, the result of creative activity, not directly related to the ownership of the material object in which it is expressed. The law grants the owners of industrial property rights exclusive rights to use the results of their activities. On the one hand, the inventor owns property rights to use the invention (they can be alienated, i.e. transferred to third parties), on the other hand, the inventor has a whole range of personal non-property rights (the right to authorship, the right to a name, etc.), which are inalienable by the nature of these rights.

Industrial property right protects only the idea, concept of an invention, trademark, regardless of the form of implementation of these ideas. A feature of industrial property rights is the specific forms of its protection through the issuance of state titles of protection valid for the period established by law.

The territorial nature of industrial property law is even more pronounced than in copyright law. Subjective copyright arises (from the point of view of continental law) by virtue of only the fact of creating a work in an objective form. The subjective right to industrial property arises by the will of the state, aimed at protecting the rights of the inventor by issuing a certain title of protection (patent, author's certificate, registration of a trademark). The issuance of a title of protection is an act of state power and creates subjective rights that are valid only on the territory of this state. In other states, these rights are not protected by law, and the invention can be freely used by others. In order to protect his work abroad, the author must obtain a title of protection in accordance with the legislation of the relevant state. Only then the author receives a new subjective right to the result of his creative activity, which also has a territorial character.

Various requirements are imposed on objects of industrial property rights: novelty, usefulness (in some countries), priority, patent cleanliness. The proposed solution must be new, unknown worldwide (global novelty) or in a given country (local novelty). Novelty is established by conducting a special examination for novelty. Patent clearance is an international verification of a product in the case of export of industrial property objects. This is a check to see if these objects are covered by other patents granted to third parties. Patent purity is established with the help of a special examination. If such an invention is already patented in another country, then it is necessary to refuse to use it or buy a license from the patent owner.

The main way to overcome the territorial character is the conclusion of international agreements and the use of the principle of reciprocity. Patent cooperation, foreign patenting, registration of trademarks in other states, etc. are also widely used. Most states provide foreigners with national treatment in the field of protecting their industrial property rights. However, the principle of national treatment is not applied in all countries. For example, in the Italian patent law for national inventors, longer periods of protection of inventions and a preferential patenting regime are established. This contributes to a significant acceleration of the use of inventions patented by foreigners in Italy. Most countries have established severe penalties for counterfeiting and other infringements of industrial property (China - the death penalty; the United States - up to 10 years in prison and a fine of 500 thousand dollars).

An invention is a technical solution that meets the patentability criteria or the use of already known devices for a new purpose. The main form of protection for inventions is the grant of a patent, which establishes a legal monopoly on the invention and provides its owner with exclusive rights to use the invention. Patentability criteria: novelty of the technical solution; the significance of the novelty of the changes; the fundamental possibility of the practical implementation of the invention. The invention must be patent-free. A patent for an invention is issued by the Patent Office based on the results of an examination. The nominal term of a patent is 15-20 years, however, due to obsolescence of inventions, the actual term of a patent is much shorter - 5-10 years.

The conflict-of-laws regulation of disputes in patent legal relations with a foreign element is in principle identical to the conflict-of-laws regulation in copyright. The starting point is the application of the law of the state where protection is sought. It is also possible to apply the law of the court. In judicial practice, the use of references of the first and second degrees is common.

A trademark is a designation that can distinguish goods of one manufacturer from similar goods of other manufacturers. A trademark serves as a means of individualization of participants in civil circulation and their products. With the help of a trademark, you can determine the nationality of the product. The basis for the legal protection of a trademark is a certificate issued by the patent office. The certificate confirms the priority of the mark and the exclusive rights of its owner. The priority of a trademark is established by the date of filing the first application with the patent office of any member state of the Paris Union. Here is a classification of types of trademarks:

1) according to the form of expression - verbal, pictorial, volumetric, sound, light, olfactory, combined;

2) by the number of subjects - individual and collective;

3) according to the degree of fame - well-known and ordinary.

9.5. International and national regulation of invention law

The main way to overcome the territorial nature of industrial property rights and their protection outside the state of origin is the conclusion of international agreements. International protection of industrial property is carried out at the bilateral, regional and universal levels. International organizations play an important role in the unification of industrial property rights: the Paris Union, WIPO, INPADOC. The last to develop a model international patent.

The first universal treaty in this area is the Paris Convention for the Protection of Industrial Property of 1883 (in force in the Stockholm edition of 1967). The States Parties to the Convention formed the Paris Union for the Protection of Industrial Property. The Convention does not introduce an international patent which, if issued in one state, would be valid in all other states parties. In the same way, an international trademark is not introduced. The conditions for registering trademarks are determined by national legislation. Registration of a trademark in one state does not have extraterritorial effect. The purpose of the Paris Convention is to create legal conditions for the protection of exclusive rights in the field of industrial property. The subjects of protection are citizens and firms from the member states of the Paris Union. The basic principle is the granting of national treatment, i.e. citizens and firms from any Member State receive the same protection of industrial property in other Member States as is granted to their own citizens.

The convention defines industrial property as part of intellectual property. An approximate list of objects of industrial property has been established (expanded in national law). The originality of industrial property is emphasized: its objects are incorporeal, intangible things, therefore, the protection of an idea, regardless of the form of its implementation, is in the first place. The Paris Convention defines the concept of unfair competition, consolidates the principles of the national regime, patent purity and convention priority.

The institution of conventional priority is one of the main ideas of the Paris Convention. The introduction of the rule of conventional priority is due to the fact that a patent is granted to the one who first filed an application for an invention. Simultaneous patenting of an invention in several countries is practically impossible, since an invention patented in one country is no longer new in another. For applicants from countries of the Paris Union, an exception has been established - a person who has filed an application in one country, within a year from the date of filing the first application, enjoys the right of priority when filing the same application in other states. In these countries, priority and novelty will not be determined on the day the application is actually filed with the local patent office, but on the day the first application is filed. Convention priority for patenting industrial designs and registration of trademarks is valid for 6 months.

The Convention has established temporary protection for certain industrial property objects at international exhibitions. The regulations on exhibiting inventions at international exhibitions in the participating countries establish the rule that exhibiting an invention at an exhibition does not prevent it from being patented in that country. The term of convention priority is calculated from the moment the product is placed at the exhibition.

With the exception of the rules on national treatment and convention priority, the Paris Convention contains a limited number of unified substantive provisions. The Convention provides all States Parties with complete freedom in issuing national legislation for the protection of industrial property in accordance with their national traditions.

Due to the increase in the number of applications for the same industrial property in different countries and the expansion of foreign patenting, the Washington Patent Cooperation Treaty of 1970 (PCT) was concluded. Its members formed the International Patent Cooperation Union. The Treaty establishes the procedure for drawing up and filing an international application for a title of protection. This procedure reduces the cost of foreign patenting and speeds up its procedure. For this purpose, it is envisaged to create international search bodies similar to state patent offices. These bodies conduct documentary searches on the materials of applications and organize national examinations, as well as international preliminary examinations. The Washington Treaty does not introduce a single international patent, but contains elements of it.

The main international treaty that overcomes the territorial nature of trademark protection is the Madrid Convention on the International Registration of Factory and Trademarks of 1891 (as amended in 1979, Protocol 1989). The Convention provides for the protection of marks in all member states without their registration in each state. For this purpose, the International Bureau of Intellectual Property was created, which carries out international registration of marks, valid in all participating countries. The Convention developed the Nice Classification. An international registration is valid for 20 years, regardless of the periods established in national legislation.

The patent legislation of Russia is based on the Patent Law of the Russian Federation dated September 23.09.1992, 3517 No. 1-22.03.1991, which, although it has changed, nevertheless needs to be revised for a long time. The rights of foreigners to industrial property in the Russian Federation are established on the principle of reciprocity: in relation to the rights of a patent holder - on the basis of international treaties; in relation to the right of the owner of a trademark - on the basis of the principle of reciprocity in the absence of an international agreement. The law determined the procedure for obtaining patents by foreigners in the Russian Federation and their termination, the possibility of early termination of a patent. Russia also has the Law of the RSFSR No. 948-1 dated March 1992, 19 "On Competition and Restriction of Monopolistic Activities in Commodity Markets" (which is also long outdated) and a number of other laws on industrial property law adopted in 2. Industrial property law in the domestic legislation is not codified. The Civil Code lacks both substantive and conflict-of-law regulation of these relations. All disputes on industrial property rights with a foreign element can only be resolved by analogy. Conflict regulation is provided only in relation to license agreements (subclause 1211, clause XNUMX, article XNUMX of the Civil Code). For many years there has been an urgent need to improve Russian law in the field of regulating relations under industrial property law.

Topic 10. MARRIAGE AND FAMILY RELATIONS IN PRIVATE INTERNATIONAL LAW

10.1. The main problems of marriage and family relations with a foreign element

Marriage and family relations are complex relations of a personal non-property and property nature, based on family ties and regulated by the norms of civil (in the broad sense of the word) law. In many countries, there is no family law as an independent branch of law, and family law relations are regulated by civil law (Germany, Switzerland, France). In most modern states, family law is separated from civil law, codified and is an independent branch of law (Russian Federation, Algeria, countries of Eastern Europe and Latin America).

In the normative acts of most states there is no legislative definition of marriage, and its legal problems are not fully resolved either in laws or in doctrine. It is practically generally accepted that marriage is a legally formalized voluntary union of a man and a woman, aimed at creating a family and presuming joint cohabitation with a common household. It should immediately be noted that such a definition of marriage does not correspond to the law of all states. In the modern doctrine of law and judicial practice, marriage is defined as a marriage contract, marriage status or marriage partnership. The most common point of view is that marriage is a contract, a civil law transaction that gives rise to personal and property rights and obligations of spouses.

Family relations with a foreign element are an integral part of international civil relations. The foreign element in marriage and family relations can manifest itself in all its variants. In the legislation of some states, "foreign" (between foreigners) and "mixed" (between foreigners and their own citizens) marriages are specifically distinguished. Family relations are connected to the maximum extent with national traditions, religion, everyday and ethnic customs, and therefore the family law of different countries is fundamentally different and practically cannot be unified. All this causes serious conflicts of laws in the field of marriage and family law.

The main conflict-legal problems of marriage and family are as follows: 1) the form and conditions of marriage; 2) racial and religious restrictions; 3) prohibitions on marriages with foreigners; 4) the need for permission (diplomatic, parents or guardians) to enter into marriage; 5) personal law (supremacy) of the husband; 6) marriage by proxy and through a representative; 7) polygamy and monogamy; 8) same-sex marriages; 9) legal liability for refusing to enter into a promised marriage; 10) "lame marriages", etc.

The doctrine of law, with the help of a comparative analysis, has identified the most common conflict-of-law bindings for establishing the applicable law: 1) the law of the place of marriage; 2) the personal law of both spouses; 3) the law of the country of permanent residence of the child; 4) the personal law of the adopter; 5) the law of competence of the institution; 6) the law of the court; 7) the law of the country of joint residence of the spouses; 8) the law of the last joint place of residence; 9) the personal law of the child; 10) the law of the location of common family property.

Attempts to unify marriage and family relations with a foreign element have been made since the beginning of the 1902th century. At the universal level, a whole set of Hague conventions on family law has been developed: on the settlement of conflicts of laws and jurisdiction in the field of divorce and judicial separation of spouses of 1972; on the law applicable to maintenance obligations, 1993; on cooperation in the field of foreign adoption, 1995; on the settlement of conflicts of laws in the field of marriage in 50, and others (about XNUMX in total). These conventions contain mostly unified conflict of laws rules. The main disadvantage of the Hague Conventions is the limited circle of their participants. Many of them never entered into force because they did not receive the required number of ratifications.

The UK has codified the legal norms relating to marriage and family relations with the participation of foreigners and stateless persons (Section VII). Such relations may be subject to both Russian and foreign law. In the event of a conflict of law issue being resolved in favor of foreign law, the procedure for establishing the content of foreign family law is determined (Article 166 of the UK). This is the responsibility of the court and other competent authorities of the Russian Federation. The content of foreign family law is established taking into account its official interpretation, application practice and doctrine in the relevant foreign state. The UK contains a clause on public order (Article 167), according to which the rules of foreign family law are not applied if their application is contrary to the fundamentals of the rule of law (public order) of the Russian Federation. In such cases, the rules of Russian law apply.

10.2. Marriages

The procedure for concluding marriage and its main forms in terms of the occurrence of legal consequences in different countries are defined in fundamentally different ways: only the civil form of marriage (Russian Federation, Switzerland, France, Germany, Japan); only religious (Israel, Iraq, Iran, certain states of the USA and provinces of Canada); alternatively either one or the other (Great Britain, Spain, Denmark, Italy); both civil and religious (Latin American states, states of the Middle East and Southeast Asia). Certain civil law consequences are also generated by illegal cohabitation with the conduct of a common household. In some US states, simple cohabitation after a certain period of cohabitation allows the court to establish a precedent for the presumption of a legal marriage.

The conditions for concluding marriage in national laws are also fundamentally different, but a number of common features can be distinguished: reaching the marriageable age established by law; responsibility for concealing the circumstances preventing marriage; prohibition of marriages between close relatives, adoptive parents and adopted children, guardians and wards; prohibition of marriage with partially or completely incapacitated persons; the need for the express consent of the bride and groom.

The legislation of almost all countries provides for a special form of marriage - consular marriages. Such marriages are concluded in consulates or consular departments of embassies between citizens of the state of accreditation located in the territory of this foreign state. Consular marriages are concluded on the basis of consular conventions; such marriages shall be subject to the laws of the state of accreditation. Some consular conventions provide for the requirement to take into account the law of the host state (Consular Convention between the Russian Federation and the United States).

The most acute problem of marriage and family relations with a foreign element is the large number of "limping" marriages, that is, 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. Not so long ago, 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 concluded abroad, did not join the Convention.

General conflict bindings for resolving the issue of marriage are the personal law of both spouses (it is subject to the internal conditions of marriage) and the law of the place of marriage (determines the form and procedure for marriage). These bindings are provided for both in national legislation and in the Hague Convention on the Settlement of Conflicts of Laws in the Field of Marriage.

When concluding mixed and foreign marriages on the territory of Russia, their procedure and form are subject to Russian law (clause 1, article 156 of the UK). The legislator provided for the cumulation of the conflict binding. The conditions for concluding a marriage are determined by the personal law of each of the spouses (that is, it is possible to apply simultaneously the decisions of two legal systems). At the same time, it is necessary to take into account the provisions of Russian law regarding the circumstances preventing entry into marriage (clause 2, article 156 of the UK).

Regulation of the procedure for entering into marriage of dual nationals and stateless persons is carried out in a special manner. If a bipatride also has Russian citizenship, the conditions for his marriage are determined by Russian law. For persons with multiple citizenship, the conditions for entering into marriage are determined by the legislation of the state at the choice of the person himself (clause 3, article 156 of the UK). When determining the conditions for marriage for stateless persons, the law of the state of their permanent place of residence is applied (clause 4, article 156). Thus, in Art. 156 of the UK establishes a "chain" of conflict of laws rules that regulate the procedure for entering into marriage in different ways for different categories of individuals. Marriages between foreigners concluded in consular and diplomatic representations of foreign states on the territory of the Russian Federation are recognized as valid on the basis of reciprocity (clause 2, article 157 of the UK).

The conclusion of marriages outside the territory of the Russian Federation is regulated in paragraph 1 of Art. 157 and Art. 158 SC. The norm of paragraph 1 of Art. 157 SC raises many questions: what character does it have - imperative or dispositive; what exactly it establishes - the right or obligation for citizens of the Russian Federation to marry abroad in diplomatic or consular institutions of the Russian Federation; Do Russian citizens have the right to marry each other outside the Russian Federation not in the diplomatic or consular offices of the Russian Federation, but in local marriage registration authorities? Marriages entered into between Russian and foreign citizens outside the Russian Federation are recognized as valid in Russia if their form and the procedure for concluding them comply with the law of the place of marriage and the provisions of Art. 14 SC.

In connection with some specific trends in the development of family law abroad (the Netherlands, Sweden, the USA, etc.), there is a problem of recognition in the Russian Federation of same-sex marriages concluded between Russian and foreign citizens outside the Russian Federation, since Russian legislation does not directly prohibit same-sex marriages. Marriages between foreigners concluded outside the boundaries of the Russian Federation are recognized as valid provided that the legislation of the place of marriage is observed. The invalidity of marriages with a foreign element is determined by the legislation that was applied at the conclusion of the marriage (Article 159 of the UK).

10.3. Divorce

Until the 70s. 70th century practically all over the world, divorce was considered as a sanction for the guilty behavior of the spouses, for violation of the marriage contract with the recovery of losses and compensation for moral harm. In the mid 1970s. XNUMXth century Divorce reform was carried out in most European countries. The main trend of the reform is the rejection of the concept of divorce as a sanction and the transition to the concept: divorce is a statement of an unsuccessful marriage. The modern legislation of most countries provides for both judicial and non-judicial divorce procedures. At the international universal level, these issues are regulated in the Hague Convention on the Recognition of Divorce and Judicial Separation of Spouses of XNUMX.

The 1993 Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters for the CIS countries establishes that in cases of divorce, the law of the country of which the spouses are citizens at the time of divorce is applied. In case of different citizenship of the spouses, the law of the state of the place of dissolution of the marriage shall apply.

The procedure for the dissolution of foreign and mixed marriages is defined in consular conventions and national legislation. Most states recognize divorces that take place abroad. The main conflict binding in resolving divorce issues is the law of the place of divorce, subsidiary bindings are the personal law of the spouses and the law of the court. In European states, there is a similar to divorce, but legally a different way to terminate marriage and family relations. At the request of the parties, the court decides on the separation (judicial separation) of the spouses. The marriage does not end, but the spouses receive the right to separate residence. The main difference between separation and divorce is that in the event of the death of one of the spouses, the other retains hereditary rights.

The procedure for dissolution of marriages with a foreign element under Russian law is established in Art. 16 °C, containing a "chain" of conflict rules. Only Russian law, i.e. the law of the court, applies to the dissolution of any marriages on the territory of the Russian Federation. The right of Russian citizens to dissolve marriages with foreigners residing outside the Russian Federation is legislated in Russian courts or in diplomatic and consular missions of the Russian Federation. The dissolution of any marriages outside the Russian Federation is recognized as valid in Russia, subject to the law of the relevant foreign state. The main requirements are compliance with the prescriptions of foreign law on the competence of bodies and legislation on the dissolution of marriages.

10.4. Legal relationship between spouses

As a general rule, conflict regulation of personal non-property relations of spouses is based on the application of the personal law of the husband and the personal law of the wife. The main conflict binding is the law of the last joint place of residence of the spouses. The defining beginning has a territorial sign. If the spouses have never lived together, then the law of the forum country shall apply. The public policy clause is widely used. In developed countries, the equal rights of husband and wife are legally established. A peculiar regulation of the personal relations of spouses takes place in Anglo-American law (Great Britain, USA). Spouses are obliged to create a marital community of life (consortium).

The problem of choosing the law applicable to the regulation of personal marital relations is solved with the help of a "chain" of conflict rules. General conflict binding - the law of the country of joint residence of the spouses; in the absence of a joint place of residence - the law of the state in whose territory the spouses had the last common residence. If the spouses have never lived together, the law of the forum country shall apply. In some states (Great Britain, Germany, France), the dominant conflict binding is the personal law of the husband, which applies regardless of the different place of residence and different citizenship of the spouses.

Property relations between spouses are based on a contractual or legal regime of joint property. Types of legal property regimes - community (France, Switzerland), separateness (Great Britain, Germany), deferred property (Denmark, Sweden, Norway). The legislation of most European countries provides for obligations for mutual alimony of spouses. The solution to this issue is possible both in court and by agreement between the spouses on the payment of alimony. Conflict problems of alimony obligations are resolved on the basis of the application of the law of legal domicile (common residence of the spouses). Problems can arise in the absence of a joint place of residence of the spouses. In such cases, the main conflict principle is the law of the court.

In modern law, the principle of equality of property rights and obligations of spouses is enshrined. In Western countries, when entering into marriage, a marriage contract is mandatory. It is possible to conclude such a contract under a condition (suspensive or revocable). The legislation of most countries provides for unlimited autonomy of will regarding the content of the marriage contract. The only limitation is the compliance of the provisions of the marriage contract with the public policy of the state. The possibility of unlimited autonomy of will on the issue of applicable law is also established. The law of the common citizenship or common domicile of the spouses, the law of the country of the forum also applies.

In Russian law, on the issue of personal and property relations between spouses, a "chain" of conflict of laws rules is also established - the law of the country of joint residence, the law of the country of the last joint residence, Russian law (in the territory of the Russian Federation) as the law of the court (Article 161 UK). The concept and procedure for concluding a marriage contract are completely new provisions for Russian law (Articles 40-44 of the UK). The main difference between the Russian marriage contract and the marriage contract in foreign law is the right of the parties to settle only property relations. When concluding a marriage contract and an agreement on the payment of alimony in marriages with a foreign element, the parties are given the opportunity to choose the applicable law. In the absence of an agreement between the parties on the applicable law, regulation is carried out through the application of the "chain" of conflict of laws rules established by Art. 161 SC.

10.5. Legal relationship between parents and children

The conflict regulation of the legal status of children is based on the application of the law of the child's citizenship. The citizenship of children is established by the citizenship of the parents, by agreement between them (if the parents have different citizenship), by the principle of soil (Resolution of the EU Committee of Ministers "On the citizenship of children born in wedlock"). The main problems of legal relations between parents and children are the establishment and contestation of paternity (maternity), deprivation of parental rights, maintenance obligations of parents and children, protection of the rights of the child, the institution of parental authority. The regulation of these relations is carried out, first of all, on the basis of the personal law of children and parents (the rights of the country of citizenship or domicile). The law of the child's country of habitual residence, the law of the competent institution and the law of the court shall also apply.

Most of these issues are settled in international law (in the Hague Convention on the Law Applicable to Maintenance Obligations for Children, 1956; the Convention on the Rights of the Child, 1989; on competence and applicable law in relation to the protection of minors 1961).

The law applicable to the issues of establishing and contesting paternity and maternity is defined in Art. 162 SC. The main conflict binding is the law of the child's citizenship by birth. Establishing (challenging) paternity (maternity) on the territory of the Russian Federation involves the application of Russian law. The legislator secured the right of Russian citizens outside the Russian Federation to apply to the diplomatic and consular missions of the Russian Federation regarding the resolution of these issues.

The rights and obligations of parents and children are regulated by Art. 163 SC. The main conflict binding is the law of the joint place of residence of parents and children. In the absence of a joint place of residence, the law of the child's nationality applies. Alimony obligations and other relations involve the subsidiary application of the law of the place of permanent residence of the child. Alimony obligations of adult children and other family members are determined by the law of joint residence (Article 164 of the UK). In the absence of a joint place of residence, the law of the state of which the person applying for alimony is a citizen shall apply.

10.6. Adoption (adoption) in private international law

The institution of adoption (adoption) is one of the most ancient legal institutions (known since the ancient world). Adoption is a complex legal and ethical issue because it requires a strong belief in the best interests of the child. At the international level, the main issues of adoption are resolved in the European Convention on the Adoption of Children of 1967. In recent years, adoption (adoption) by foreign citizens and adoption abroad has become extremely common. In this regard, modern international law has set a higher standard for adoption requirements. The adoption system enshrined in the 1989 UN Convention on the Rights of the Child provides guarantees for the rights and interests of the child in the event of adoption. The Recommendation of the Committee of Ministers of the EU "On raising families" and the Convention on the Protection of Children and Cooperation with regard to Foreign Adoption of 1993 are devoted to the legal regulation of these issues.

Conflict issues of adoption (adoption) in Russian legislation are resolved on the basis of a "chain" of conflict rules. The main conflict binding is the personal law of the adopter (citizenship or domicile) in the case of adoption (adoption) on the territory of the Russian Federation of a child who is a citizen of the Russian Federation. At the same time, the need to comply with the family legislation of the Russian Federation and international treaties of the Russian Federation (Part 2, Clause 1, Article 165 of the UK) is fixed. Adoption (adoption) by foreigners married to Russian citizens of children - Russian citizens on the territory of the Russian Federation presumes the application of Russian law, taking into account the international obligations of the Russian Federation. The legislator also established the application of the law of the competent institution in the event of adoption (adoption) in the territory of the Russian Federation of a foreign citizen. A list of cases has also been established when adoption requires the consent of the competent institution of the Russian Federation, the legal representatives of the child and the child himself.

In the event of a possible violation of the rights of the child, it is necessary to refuse adoption (adoption) or cancel the adoption in court. The consular offices of the Russian Federation are entrusted with the obligation to protect the rights and interests of children - citizens of the Russian Federation, adopted (adopted) by foreign citizens outside the Russian Federation. When adopting (adopting) children - citizens of the Russian Federation outside the Russian Federation, the law of the competent institution of the state of which the adoptive parent is a citizen is applied. For the production of such an adoption, it is necessary to obtain prior permission from the competent authority of the Russian Federation.

Topic 11. HERITAGE RELATIONSHIPS IN PRIVATE INTERNATIONAL LAW

11.1. The main problems in the field of inheritance relations complicated by a foreign element

Inheritance law is one of the institutions of civil law, which is understood as a set of rules governing relations related to the transfer of the rights and obligations of the deceased to other persons. Inheritance is one of the most important derivative ways of transferring ownership. There is a close relationship between inheritance law and property law. The subject of inheritance law can only be that which can be the subject of private property law. The right of ownership takes precedence over inheritance law.

Types of inheritance - inheritance by will and by law. Testamentary inheritance is the main type of inheritance. The original beginning of testamentary succession in both continental and common law is a combination of two fundamental principles: freedom of will and protection of the interests of the family. In almost all states, a will is understood as a unilateral transaction, an act of will of the testator. The forms of the will are fundamentally different under the legislation of different states. Attempts to partially unify inheritance law were made in the Hague Convention on Conflicts of Laws Concerning the Forms of Testamentary Dispositions and in the Washington Convention on the Form of Wills of 1973. However, inheritance law, like family law, is to a very large extent determined by national traditions and customs and therefore is very difficult to unification.

Inheritance by law has a subsidiary value. Basically it is carried out: in the absence of a will; if it is declared invalid; refusal of the heir under the will to accept the inheritance; in the case of bequest of part of the property. In almost all countries there is the concept of a mandatory share - a restriction of the principle of freedom of will in favor of the family members of the testator. The legislation of different countries determines the order of inheritance by law and the circle of obligatory heirs in different ways.

In addition, fundamental differences exist in the inheritance of movable and immovable property. In the law of most states, imperative conflict rules on the inheritance of real estate are fixed. The order of inheritance of such property is determined by the law of the state of its location. In inheritance law, there is a splitting of the conflict link to determine the regime of property depending on its category. Accordingly, various conflict of law principles are used to determine the applicable law. When inheriting movable property, there is a cumulation of conflict bindings: the personal law of the testator, the law of the place of drawing up the act and the law of the court are simultaneously applied. The category of property (movable and immovable) is determined according to the norms of national law (mainly) or an international treaty. Since the belonging of things to movable or immovable is determined differently, this exacerbates the problems of hereditary legal relations with a foreign element. At present, many states have established the principle of the unity of hereditary property.

We list the conflict-legal problems of inheritance law: 1) determining the circle of heirs by law and by will; 2) the system of hereditary property; 3) requirements for the form of a will; 4) distinction between inheritance of movable and immovable property; 5) the possibility of applying the principle of unity of the estate; 6) questions of the validity of the will; 7) determination of testamentary capacity. General and special collision bindings - the law of the location of a thing; the law of the location of the property; personal law of the testator; the law of citizenship of the testator at the time of his death; the law of the permanent last residence of the testator; the law of the place where the will was made. Of primary importance is the personal law of the testator.

The conflict regulation of inheritance relations in Russian law is enshrined in Art. 1224 of the Civil Code, which establishes a "chain" of conflict rules. The main conflict binding of hereditary relations is the law of the last place of residence of the testator. To determine the legal order of inheritance of real estate, the law of the location of the property is applied. When inheriting Russian real estate entered in the state register of the Russian Federation, only Russian law applies. Determination of the testamentary legal capacity of a person, the form of a will or the act of its cancellation is carried out according to the law of the country of residence of the testator at the time of drawing up the will. A will or an act of its annulment is recognized as valid in terms of form if it complies with the requirements of the law of the place where the will was drawn up or Russian law.

11.2. Inheritance rights of foreigners in the Russian Federation and Russian citizens abroad

The basis for the regulation of inheritance law in Russia is Sec. V GK. Russian law establishes a national regime for foreign heirs. This rule has an imperative character and can eliminate the emergence of a conflict issue. In practice, however, national treatment is granted in accordance with the provisions of international treaties or in the presence of reciprocity (if there is no international treaty). Certain exceptions are also provided for from the national regime. In the field of hereditary relations, the principle of material reciprocity operates.

The inheritance rights of foreigners in Russia and Russian citizens abroad are mainly regulated in consular conventions and legal assistance agreements. Consider the provisions of bilateral treaties of the Russian Federation on legal assistance in the field of inheritance relations.

1. Citizens of one side in the field of inheritance are fully equated with citizens of the other side, i.e., foreigners are recognized as capable of inheriting by law and testament on an equal basis with their own citizens; inheritance property passes to foreign heirs under the same conditions that apply to its own citizens.

2. Taxation in the field of inheritance in relation to foreigners is carried out on the same terms that are enjoyed by their own citizens. Inheritance amounts owed to foreigners are freely transferred abroad in the presence of reciprocity.

3. Inheritance by citizens of one party in the territory of the other is admissible only in respect of those types of property which, under the law of that state, may be the object of inheritance for its own citizens.

4. The object of a testamentary disposition in the territory of one Party by citizens of the other Party may be everything that, under the law of the host State, can be the object of a testamentary disposition of its own citizens.

5. The extension of the terms for entering into an inheritance in relation to foreigners is carried out in the courts of one state on the same grounds as for local citizens (in agreements with individual states - Poland, Hungary, Bulgaria - there are special regulations on the calculation of terms for accepting an inheritance) .

6. The treaties resolve the problem of the competence of the authorities of which state includes the proceedings on the inheritance case. This issue is subject to conflict regulation on the basis of special bindings: a) when inheriting movable property, the institution of justice of the country where the testator had his last permanent residence is competent; b) when inheriting real estate - the institution of justice of the country where this property is located.

7. The possibility of separate competence in relation to property located on the territory of one of the contracting states has been established; the inheritance of immovable property shall be governed by the law of that state, and the inheritance of movables by the law of the other contracting state in whose territory the testator was domiciled or whose citizen he was at the time of death.

8. The testamentary legal capacity of a citizen is determined by the personal law of the testator (citizenship or domicile).

9. The form of the will is determined by the law of the country in whose territory the testator had his last place of residence.

10. The validity of a will is determined by the law of the place where the will was made.

11. A will is recognized as valid in terms of form if it meets the requirements of: a) the law of the state in whose territory the will was drawn up; b) the rights of the state of which the testator was a citizen at the time of death; c) the law of the state in whose territory the testator was domiciled at the time of death or at the time of making the will; d) the rights of the state in whose territory the immovable property is located, if we are talking about the inheritance of such property.

The 1993 Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters for the CIS countries establishes a "chain" of conflict rules governing the hereditary statute:

1) the right to inherit movable property is determined by the law of the party in whose territory the testator had his last permanent place of residence;

2) the right to inherit immovable property is determined by the law of the party in whose territory this property is located;

3) the ability of a person to draw up a will and its cancellation, the form of a will and its cancellation are determined by the law of the party in whose territory the testator had a permanent place of residence at the time of making the will. A will or its revocation cannot be declared invalid due to non-observance of the form, if it complies with the requirements of the law of the place where the will was made.

Protection of the inheritance rights of Russian citizens abroad is entrusted to consuls and is regulated by the provisions of consular conventions. Russian citizens have the right to receive inheritance property if the inheritance is opened abroad. The right to inherit arises on the basis of foreign law; accordingly, Russian citizens are recognized as heirs under the law of the state that applies to the inheritance statute.

The right of Russian citizens to act as heirs of a certain order in case of inheritance by law and to receive an inheritance share in the event of opening an inheritance abroad is determined by the law of a foreign state and in no way can depend on the provisions of Russian legislation. Russian law does not contain any restrictions for Russian citizens to receive inheritance amounts from abroad.

Here are the main provisions of consular conventions (with the UK, China, USA, Sweden) in the field of inheritance law:

1) the consul takes measures to protect the property left after the death of a citizen of his country. Movable property is handed over to the consul to deal with it in accordance with his national law;

2) the authorities of the receiving state are obliged to notify the consul about the opening of an inheritance in favor of a citizen of the state of accreditation;

3) the consul has the right to represent the interests of citizens of his state, claiming a share in the estate in the host state;

4) the consul is the legal representative of the citizens of his state in matters of inheritance in the courts and other bodies of the receiving state.

11.3. The regime of "escheat" in private international law

Escheat property is property that remains after the death of a person who left no heirs either by law or by will. The substantive inheritance law of almost all states in this case establishes that such property goes to the treasury (Article 1151 of the Civil Code). However, in the law of different states, the explanation of the state's right to inherit such property is fundamentally different.

1. The concept of the transfer of escheated property into state ownership as ownerless property (France, Austria, USA). The acquisition of property as ownerless has an initial, and not derivative, character, therefore, escheated property passes to the state free of any encumbrances and debts. The hereditary rights of the state here arise from the "law of occupation".

2. The concept of the transfer of escheated property into state ownership by inheritance law (Russian Federation, Germany, Spain, Switzerland, Eastern European states, CIS and Baltic countries). The rationale for this concept is the definition of inheritance as a universal succession. In this case, the state is responsible for the debts of the testator, since the acquisition of property by inheritance is a derivative way of transferring ownership.

Different substantiation of the right of the state to inherit escheated property is of significant practical importance if such property belongs to a foreigner:

1) if we consider that escheated property passes into the ownership of the state by inheritance, then it must be transferred to the state of which the deceased was a citizen;

2) if we assume that the hereditary rights of the state arose under the "law of occupation", then the escheated property becomes the property of the state where the citizen died, or where the property is located.

It is practically generally accepted that the fate of escheated property is determined by the law of the state on whose territory the property is located, and depends on what concept of transfer of escheated property the given state adheres to. It should also be noted the differences in legal regimes for the inheritance of movable and immovable escheated property. Even if the state adheres to the concept of transfer by right of inheritance, real estate in any case becomes the property of the state in whose territory it is located. Movable things are either transferred to the state of citizenship of the deceased, or enter the treasury of the state of their location.

In modern international civil relations, the fate of escheated property belonging to foreigners is regulated in bilateral legal aid treaties. These agreements contain a unified material norm: escheated movable property is transferred to the state of which the testator was a citizen at the time of death; escheated immovable property becomes the property of the state in whose territory it is located. This material norm, which directly resolves the fate of escheated property, is connected with the conflict of laws principles for regulating inheritance relations established in contracts. The inheritance of movable property is subject to the personal law of the testator, and the inheritance of real estate is subject to the law of the location of the thing.

A similar rule is contained in the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993, concluded by the CIS countries.

Topic 12. INTERNATIONAL PRIVATE LABOR LAW

12.1. Conflict problems of international labor relations

Relations of a civil law nature in the broad sense of the word, falling under the scope of PIL, also include labor relations with a foreign element, but only to the extent that their legal regulation is carried out using the categories of civil law (contractual obligations, legal and de eu capacity, compensation for damage, limitation period). The system of norms governing such labor relations forms an independent branch of PIL - MCHTP, consisting of substantive and conflict of laws regulations.

In the field of labor law, with greater force than is typical for civil law, the public law principle manifests itself. Labor law (like family law) is a conglomeration of public law and private law prescriptions, although in principle labor law is part of the system of private national law. State intervention in this sphere of legal relations is due to the need to conduct a certain social policy that ensures a balance of interests of workers and employers in order to avoid social upheavals, maintain stability in society, and eliminate unemployment as much as possible. This is connected with the emergence and development of the theory of social partnership, which dominates the modern regulation of labor relations (it is also enshrined in the Labor Code).

The active intervention of the state in the regulation of labor relations predetermines the restriction of the effect of conflict of laws rules, i.e., the restriction as a result of the application of foreign law. Even when the private law nature of labor relations is not in doubt, in most states these relations are within the legal field, where the application of national legislation is mandatory, and its mandatory rules are of decisive importance. Practically everywhere, the subordination of labor relations to common civil and conflict principles is faced with public law regulations on labor protection, on "crippled" cases, on strikes, etc. to protect the interests of the "weak" side.

Conflict regulation of labor relations involves the application of general categories of conflict of laws (but with significant reservations). Since an employment contract is a contract, the autonomy of the will is widely applied to it as a general conflict binding of all contractual obligations. The legislation of most states provides for the possibility of an agreement between the parties on the applicable law when concluding an employment contract, like any civil law contract. However, not all issues of the contract can be regulated by the autonomy of the will of the parties. Its most significant limitation is the need to comply with the mandatory norms of labor legislation and the country of the place of work, and the country where the labor contract is concluded, and the state of citizenship of the employee.

In the absence of an agreement between the parties on the applicable law in the contract, a hypothetical, implied will of the parties is sought in Western courts. Subsidiary special conflict bindings are the law of the place of work and the law of the place of conclusion of the contract. Labor law and legal capacity are determined on the basis of the personal law of the employee, but with some exceptions in favor of the law of the place of work or the law of the place where the contract is concluded.

Conflict-of-law problems of international labor relations: 1) the possibility of regulating an employment contract on the principle of autonomy of will; 2) state regulation of labor rights and obligations of foreigners and stateless persons; 3) the possibility of restricting the labor rights of citizens according to the norms of bilateral international treaties. The main general and special conflict bindings are the laws: 1) places of conclusion of an employment contract; 2) places of production activity; 3) flag for sea and air transport; 4) personal law of the employee; 5) location of the employer; 6) places of permanent work; 7) the location of the enterprise that sent the employee on a business trip; 8) places of registration of vehicles; 9) carrier.

12.2. Labor relations with a foreign element under the legislation of the Russian Federation

The initial beginning of the regulation of the labor of foreigners in the Russian Federation is the norm of the Constitution on the equal right to work. In the sphere of labor relations, the application of the principle of national treatment has been established (but with wide exceptions). An analysis of the provisions of Russian law allows us to assert that it is precisely Russian citizens who have priority rights to work on the territory of the Russian Federation. A similar provision exists in almost all labor laws in other states. The Labor Code does not contain special labor rules for foreigners, does not regulate the specifics of their legal status in the field of labor law. These problems are regulated in special federal laws that define both categories of foreign individuals and special categories of foreign workers on the territory of the Russian Federation. Employment contracts with foreigners can only be of a fixed-term nature. Any labor relations with the participation of foreigners on the territory of the Russian Federation are regulated in accordance with Russian law (Article 11 of the Labor Code).

Labor relations with a foreign element suggest the possibility of conflict regulation. The initial conflict of laws is the application of the law of the country of the place of work, i.e. Russian law. The application of foreign law mainly takes place in the regulation of labor relations in enterprises with foreign investment. In domestic law, a special provision has been adopted on the employment of foreigners in enterprises with foreign investment. As in all other states, in Russia there is a tendency to limit the application of foreign law to labor relations.

In the last 15 years, the labor migration of Russian citizens abroad has increased significantly. Activities related to the employment of Russian citizens abroad on the territory of the Russian Federation can only be carried out by Russian legal entities that have a special license. Both Russian and foreign law can be applied to the labor relations of Russians abroad. Russian law regulates the work of Russian citizens abroad, if labor relations arose on the territory of the Russian Federation, i.e., a Russian citizen is sent to work abroad as part of an official assignment. Foreign law determines the legal status of a Russian employee under an employment contract concluded abroad. The working conditions of Russian citizens abroad, stipulated by the labor contract, must not be worse than the conditions stipulated in labor contracts with citizens of other foreign states (most favored nation treatment). In all cases, the provisions of the employment contract must not violate the mandatory norms of the state of the place of conclusion of the contract and the place of work.

In the Labor Code, in principle, there is no regulation of labor relations with a foreign element. In Russian legislation, there is not a single conflict of laws rule that would directly relate to the scope of the ICTP. To labor relations with a foreign element, civil legislation is applied by analogy (Articles 1210, 1211 of the Civil Code). The disadvantages and problems of this approach are obvious. At present, the need for codification of the MChTP in the Russian PIL is also obvious.

12.3. Accidents at work and "crippled affairs"

One of the most complex and controversial areas of PIL is the area of ​​conflicts of laws in connection with industrial accidents. The criteria for choosing law in "disabled cases" are quite diverse and are related to the following basic concepts of such cases:

1) the tort origin of the liability of the tenant, justifying the application of the law of the place where the tort was committed;

2) the contractual origin of the liability of the rights and obligations of the participants in the obligation to compensate for harm, which implies the application of the law established in the labor contract;

3) the cumulation of tort and contractual liability of the employer, which implies the existence of an alternative between the law of the place where the tort was committed and the law to which the labor contract is subject. Both conflict bindings are equally competent;

4) the priority of the law of the location of the enterprise. The application of this concept in practice is complicated by the problem of qualifying the concept of "location of the enterprise".

In modern jurisprudence and legislation of Western countries (USA, France, Great Britain), "differentiated" conflict bindings are used in "crippled cases" (search for the law inherent in this relationship). The main trend of modern judicial practice in considering "crippled" cases is the rejection of "inflexible" conflict bindings, the application of the theory of individual localization, and on its basis the search for a law inherent in this contract. For this, the theory of "weighing" the tort relationship is used. The use of the concept of "place of result" is extremely widespread, i.e. the law of the country in which the accident occurred is applied. Subsidiary special conflict bindings - the law of the place of registration of vehicles and the usual place of residence of the victim.

When resolving "mutilated cases", national and international legal presumptions are widely applied (common citizenship or common domicile of the employee and employer; the law of an institution serving its clients in droves; the law of the court - whoever chooses the court, chooses the law). Some States have enacted laws to extend national compensation acts to foreign workers in the event of injury at a local enterprise.

"Maimed deeds" are associated with compensation not only for material damage, but also for moral damage. In this regard, a problem arises: the specifics, procedure and amount of compensation for moral damage are fundamentally different in the legislation of different states. In the same way, the very definition of the concept of "moral harm" (damage) is very different in national legislation. At present, it is practically generally accepted that moral damage involves the infliction of physical and moral suffering, and is compensated only if there is guilt. Compensation for moral damage is provided in monetary or other material form and in the amount determined by the court, regardless of the property damage subject to compensation.

Migrant workers are compensated for damage caused by work injury or occupational disease on the basis of international agreements, labor contracts and national laws. In the event of a dispute, the law of the country of employment and the national legislation applicable to the worker at the time of the injury or during the work activity that caused the occupational disease shall apply. It is possible to establish the applicable law on the basis of the autonomy of the will of the parties.

In the event of industrial injuries and occupational diseases by employees who are on a business trip abroad, the law of the country that sent the injured person on a business trip is applied. Compensation for damage is made by the enterprise that seconded the employee. When harm is caused to such persons not at work and during off-hours, the general concept of tort obligations applies: the law of the country where the tort was committed is applied, compensation for damage is made by the person who directly caused it.

Topic 13. OBLIGATIONS FROM OFFENSES IN PRIVATE INTERNATIONAL LAW

13.1. The main problems of obligations from offenses (torts)

A civil offense (delict) is a violation of subjective civil rights, causing harm to a person and property of an individual or legal entity. Torts in PIL are civil offenses with a foreign element. Consider the conditions for the emergence of obligations from causing harm in PIL:

1) the victim or the delinquent are foreigners;

2) the actions of the delinquent to compensate for harm depend on the foreign legal sphere;

3) the subject of the legal relationship is damaged in the territory of a foreign state;

4) the subjective right of the victim and the legal obligation of the delinquent arise in one state, and are implemented in another;

5) the violated rights of third parties are protected under the laws of a foreign state;

6) a dispute on compensation for damage is considered in a foreign court;

7) the decision on compensation for damage must be executed in a foreign state;

8) the right to compensation for damage is derived from prejudicial facts subject to foreign law (for example, an insurance contract).

In obligations, the tort statute of legal relations is distinguished from torts. The concept of a tort statute includes: the ability of a person to bear responsibility for the harm caused; imposition of liability on a person who is not a delinquent; grounds for liability; grounds for limitation of liability and exemption from it; methods of compensation for harm; amount of damages. The grounds for the occurrence of conflicts in national legal systems and the problems of choosing the applicable law depend on a different understanding of the tort statute in national law. We list the main conflict-of-law problems: 1) the grounds and limits of tort liability; 2) the possibility for the victim to choose the most favorable law for him and the application of the law of the country of the victim; 3) calculation of material and moral damage; 4) jurisdiction of tort claims.

General general conflict bindings are the laws: 1) the place of the offense; 2) the personal law of the inflictor of harm; 3) the citizenship of the victim and the delinquent, if they coincide; 4) the personal law of the victim; 5) court. Traditional conflict bindings of tort obligations are the law of the court and the law of the place where the tort was committed. The concept of "place of delict" is defined either as the place where the harmful act was committed, or as the place where the harmful consequences occurred.

The objective prerequisites for civil liability are the "components" of the offense: the harmful behavior (action or inaction) of the delinquent and the harmful result caused by this behavior. When localizing the elements of the actual composition of the offense in different states, the problem of qualifying the legal categories of the tort statute arises. In modern law, it is possible for the victim to choose the most favorable law for him. In addition, in determining the applicable law, the presumption of "common nationality" or "common domicile" of the parties to a tort relationship is widely used.

The legislation of many states provides for exceptions to the generally accepted conflict of laws rules in favor of the personal law of the parties and the law of the court (if the parties themselves have agreed on its application). Now the principle of the choice by the court of the law of the state that takes into account the interests of the victim to the greatest extent is widespread. In tort relations, the public policy clause is widely used due to the coercive (public law) nature of such obligations.

In almost all countries, the concept of "localization of a tort" is used to determine the substantive law applicable to tort obligations. In Western judicial practice, a theory of individual localization of a particular tort relationship has been developed. Previously, the general concept of tort obligations prescribed that only the law of the court should be applied to them due to the coercive nature of these obligations. In modern practice, the law of the court is applied to claims arising from the violation of personal exclusive intangible rights in accordance with the general concept of tort obligations.

Traditional tort bindings - the law of the place where the tort was committed and the law of the court - are considered "hard" in modern practice. Since at present in the law of all states there is a tendency towards "flexible" conflict regulation, it is also possible to apply autonomy of will, personal law, the right of the essence of the relationship, the right of the closest connection to tort obligations. Now tort liabilities are regulated mainly with the help of flexible conflict principles.

13.2. Tort Liabilities with a Foreign Element in the Russian Federation

The general general conflict of law rule of tort obligations in Russian law is the application of the law of the country where the harmful action or omission was committed (clause 1, article 1219 of the Civil Code). The law of the place where the tort was committed unconditionally applies in all cases, regardless of whether the offense was committed on the territory of the Russian Federation or abroad. It is also possible to apply the law of the place of occurrence of harmful consequences, if the delinquent foresaw or should have foreseen the onset of harmful consequences in the territory of this state. The Russian legislator takes into account modern trends in the conflict of law regulation of tort relations (clauses 2, 3 of article 1219 of the Civil Code): it provides for the application of the personal law of the parties (with their common citizenship or common domicile) and the law of the court (but only by agreement between the parties).

The tort statute of a legal relationship is defined in Art. 1220 of the Civil Code: the ability of a person to bear responsibility for the harm caused; liability of a person who is not a direct tort; grounds for liability, its limitation and exemption from it; methods, volume and amount of compensation for harm. A special conflict-of-law binding is provided for resolving issues of the delinquency of foreigners on the basis of the law applicable to the tort obligation in general, and not on the basis of the conflict of laws principle of personal law (Article 1220 of the Civil Code).

The establishment of the content of foreign tort law is carried out by the Russian court on the basis of the rules of official interpretation of foreign law (according to the rules of Article 1191 of the Civil Code). Cases of restriction of the application of foreign law, enshrined in Art. 1192, 1193 of the Civil Code, apply to disputes from tort obligations. The VC and KTM provide for special cases of restricting the application of the law of the place of injury. The norms of the VK and KTM have priority application over the norms of the Civil Code, since both the VK and KTM are special laws regulating relations in a particular area, and in this case, in accordance with the Civil Code, the principle of priority of a special law over a general one applies.

The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993 of the CIS countries and the system of bilateral agreements of the Russian Federation on legal assistance establish the same type of conflict-of-law bindings to obligations from torts: general - the place of the unlawful act; subsidiary - the law of common nationality or domicile of the parties and the law of the court. In treaties, there is a narrowing of the scope of application of the law of the state of nationality by expanding the application of the law of the country of residence. Tort disputes are subject to the jurisdiction of the country in whose territory the legal fact took place, which served as the basis for the claim for damages. The right of the victim to file a lawsuit in the court of the state of the defendant's place of residence is fixed. The 1992 agreement on the procedure for resolving disputes related to economic activity of the CIS countries establishes the exclusive application of the law of the country where the tort was committed.

The section on non-contractual obligations of the Civil Code establishes the rules on the applicable law not only to tort obligations, but also to liability for damage caused due to defects in goods, work or services. The right of the victim to choose the most favorable law for him is established: the country of residence of the consumer himself; country of residence or location of the person providing the service or the manufacturer; the country where the consumer purchased the goods or received the service, i.e., the "chain" of conflict rules (Article 1221 of the Civil Code). If the victim did not take advantage of the opportunity given to him to choose the applicable law, then conflict regulation is carried out according to the general rules of tort obligations (paragraph 3 of article 1221 with reference to article 1 of the Civil Code).

In the law of most states, unjust enrichment also belongs to torts. Modern law contains a single concept of unjust enrichment, which includes the payment of a non-existent debt, the receipt of undue debt, the conclusion of "enslaving" agreements and "vain contracts." From a substantive point of view, unjust enrichment entails the restoration of the parties to their previous state (restitution), the return of improperly received and tort liability of the guilty person. To resolve conflict issues of obligations from unjust enrichment, differentiated criteria for the choice of law are applied, which are established using the theories of localization, the closest connection, the essence of the relationship. The dominant theory developed in the Anglo-American jurisprudence is the theory of conflict binding to the place of enrichment.

In accordance with this theory, Russian law establishes that obligations arising from unjust enrichment (Article 1223 of the Civil Code) are subject to the law of the country where the enrichment took place. The autonomy of the will of the parties is also possible, limited by the right to choose the law of the country of the court. In addition, the right of the essence of the relationship is applied (clause 2 of article 1223 of the Civil Code). Unfortunately, the Russian legislator does not give a definition of the term "the right of the essence of the relationship." Obligations arising as a result of unfair competition are subject to the law of the country whose market is affected by such competition (Article 1222 of the Civil Code).

13.3. Uniform international legal norms of tort obligations

In the modern world, there is a trend of internationalization of tort relations, associated with the expansion of the scope of international use of objects that are a source of increased danger. As a result, there is an urgent need to develop new ways to protect the rights of the victim and the interests of entrepreneurs. In this area of ​​international civil relations, the role of international multilateral conventions is increasing.

The international legal regime of compensation for harm has a special specificity. This is clearly demonstrated by the norms of the Convention on Damage Caused by Foreign Aircraft on the Surface of the Earth, 1952 and the International Convention on Civil Liability for Damage from Marine Oil Pollution, 1969, which provide for: 1) limiting the amount of compensation; 2) the predominance of unified substantive legal norms; 3) establishment of objective (absolute) liability of the delinquent; 4) introduction of a system of interim measures; 5) definition of "ceiling" of responsibility. The conventions establish stricter grounds of liability than liability on the basis of fault. Exemption from liability is possible only under the action of circumstances falling under the concept of force majeure.

The problem of compensation for harm associated with environmental pollution or an accident at a nuclear power plant is particularly complex, since the harmful consequences of an act committed on the territory of one state extend to the territory of others. There are multilateral agreements in these areas: the Paris Convention on Third Party Liability in the Field of Nuclear Energy of 1960, the Brussels Agreement on the Liability of Owners of Nuclear Ships of 1962, the Vienna Agreement on Civil Liability for Nuclear Damage of 1963. Here are the main provisions these Conventions: 1) a combination of unified substantive and conflict of laws rules; 2) the initial principle is the competence of the courts of the state in whose territory the corresponding action took place. General conflict binding - the law of the country of the court; subsidiary - the law of the state responsible for the nuclear installation, or the law of the state where the installation is located; 3) capitalization of liability on the operator of the nuclear installation; 4) the principle of liability in the absence of the fault of the delinquent (absolute liability); 5) limitation of liability in terms of size and time; 6) establishment of a system of financial support, including compulsory insurance, state compensation and determination of the limits of liability of the insurer and the state.

The Hague Conventions on the Law Applicable to Road Traffic Accidents, 1971 and Manufacturer's Liability, 1973, contain a complex system of unified conflict of laws rules combining various conflict of laws bindings. The Conventions attempt to establish flexible conflict regulation by means of differentiation and plurality of conflict bindings, narrowing the application of the law of the country where the tort was committed, fixing special criteria for the application of certain conflict of laws rules.

International tort liability is governed by: the Convention on International Liability for Damage Caused by Space Objects, 1972; European Convention on Civil Liability for Damage Caused by Motor Vehicles, 1973; Resolutions of the EU Committee of Ministers on compulsory insurance of civil liability and on compensation for bodily injury or death. All these acts contain both unified substantive and conflict of law rules, and determine the terms of the applicable law.

INTERNATIONAL CIVIL PROCESS

Topic 14. LITIGATION OF CIVIL CASES WITH A FOREIGN ELEMENT

14.1. The concept of international civil process

IHL is a set of procedural issues related to the protection of the rights of foreign individuals and legal entities in courts and arbitrations. The concept of "IHL" is conditional. The word "international" has the same meaning as in PIL: it means the existence of a civil legal relationship burdened with a foreign element. Scope of IHL:

1) international jurisdiction of civil cases;

2) civil procedural status of foreign individuals (individuals and legal entities), a foreign state, international organizations;

3) judicial evidence in cases with a foreign element;

4) determination of the content of the applicable foreign law;

5) execution of foreign court orders;

6) recognition and enforcement of foreign judgments;

7) notarial acts related to the protection of the rights and interests of participants in international civil transactions;

8) consideration of civil cases by way of arbitration;

9) enforcement of foreign arbitral awards.

IHL is the part of the national civil process that deals with civil disputes with a foreign element.

In the Russian legal doctrine, IHL has long been considered part of the science of PIL and included in its structure. This point of view is still present in domestic legal science. Indeed, PIL and IHL have a common origin, close interaction and interdependence. In PIL and IHL, there are common substantive, conflict and procedural institutions: national regime in the field of civil and civil procedural legal capacity; immunity of the state in civil proceedings and its property in civil law; application of the public policy clause; the principle of reciprocity and the right to retortion. However, all this does not give grounds for combining PIL and IHL. Their interrelation and interdependence are obvious, but PIL is an independent branch of law, and IHL is included in the structure of the national civil process. PIL and IHL are independent and separate branches of law and legal science.

The principle of "the law of the court" in IHL is its foundation, the central core. The generally recognized beginning of the national civil process is the application of only one's own procedural law, including when considering cases with a foreign element. In modern practice, there is a tendency to abandon the use of only national procedural law. Generally accepted exceptions: determination of the civil procedural capacity of foreigners according to their personal law; the possibility of applying foreign procedural rules in connection with the execution of foreign court orders. The grounds for the application of foreign procedural law are not the norms of national laws, but the provisions of international treaties.

14.2. Sources of international civil process

The main source of the international civil process is national legislation, primarily civil procedural and civil. The norms of IHL in Russian law are enshrined in the Code of Civil Procedure, the Civil Code, the UK, the APC, the Rules of the ICAC and the MAC. The norms of the Russian IHL are partially codified - APC (ch. 31-33) and CPC (section V). The disadvantages of the Russian IHL codification are: incomplete regulation of the specifics of the consideration of disputes with a foreign element in special sections of the Code of Civil Procedure and APC; the presence of IHL norms in different sections of the Code of Civil Procedure and APC; the constant need to apply in the field of IHL the general rules of procedural law.

Civil procedure law is the main source of national IHL in the law of most states (Argentina, Bulgaria, Italy, Poland, Portugal, Romania, Germany, France). In some states, unified laws on PIL and the process have been adopted (Albania, Hungary, Venezuela, Czech Republic). The peculiarities of the Anglo-American sources of IHL lie in the general specifics of the common law system - the leading role among the sources of law in general is played by judicial precedent.

International treaties are also sources of IHL. Among the universal multilateral international treaties, it should be noted: the Hague Convention on Civil Procedure of 1954; Vienna Convention on Diplomatic Relations of 1961; the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958; the European Convention on Foreign Trade Arbitration of 1961; The Hague Convention on the Abolition of the Requirement of Legalization for Foreign Public Documents of 1961. Examples of regional international treaties that regulate IHL issues are: Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993 of the CIS countries, the Bustamante Code, EU conventions (Brussels, Lugano, etc.). The main role among the international legal sources of IHL is played by bilateral agreements: on mutual recognition and enforcement of judgments and arbitral awards, consular conventions, agreements on trade and navigation, agreements on legal assistance.

14.3. General principles of the procedural position of foreign persons in civil proceedings

In the law of most states, the definition of the civil law and civil procedural status of foreigners is based on the principle of national treatment. Almost everywhere the right of foreigners to judicial protection and free access to courts is fixed. However, in the law of Western states, the institution of cautio iudicatum solvi (judicial bail) has long existed, i.e., imposing on the foreign plaintiff the obligation to provide security for court costs that the defendant may incur if the plaintiff refuses the claim or loses the process (France, Spain , Austria, Germany, Great Britain, Poland, Czech Republic).

All these states provide for the possibility of exempting foreigners from making bail on the basis of the principle of reciprocity, enshrined in international agreements. The grounds for exempting foreigners from making bail are also enshrined in national legislation: on the basis of the principle of reciprocity; if the plaintiff-foreigner has property in the territory of the country of the court (primarily real estate); permanent residence in the court country; "right of poverty". Russian legislation lacks the institution of cautio iudicatum solvi - foreign plaintiffs are exempted from the burden of bail in Russian courts, regardless of reciprocity.

The civil procedural right and legal capacity of foreign individuals and legal entities is mainly determined on the basis of the conflict of laws principle of personal law. The legislation of the countries of the continental legal system provides for the possibility of applying foreign restrictions on the legal capacity and legal capacity of IHL subjects (France, Germany, Italy). Linkage to personal law is connected with the problem of establishing the jurisdiction of local courts. In this regard, when determining the procedural status of foreigners, the law of the court is also applied. In the states of the common law system, the procedural doctrine of the participation of foreigners in civil proceedings (UK, USA) dominates, which also involves the application of conflict of law rules (personal law).

The position of foreign individuals in Russian civil proceedings is determined by their personal law (Articles 399, 400 of the Code of Civil Procedure), but taking into account the principle of national treatment and procedural benefits provided for by international treaties (Article 254 of the APC).

International legal regulation of the procedural status of foreigners is enshrined in bilateral treaties on legal assistance and on trade and navigation: granting citizens of both parties the right to judicial protection and unhindered access to the courts of the contracting states. The determination of the civil capacity of foreign individuals is carried out according to personal law, and their civil procedural capacity - according to the law of the court on the basis of the principle of reciprocity (treaties of the Russian Federation with China, France, Denmark, the Czech Republic, Spain).

The procedural position of the state as a participant in civil proceedings is based on its sovereignty. The sovereignty of the state predetermined the emergence of the theory of state immunity. We list the types of state immunities: immunity from foreign jurisdiction; immunity from prior securing of a claim and enforcement of a foreign judgment; immunity from the application of foreign law; immunity of state property and the doctrine of the act of state. Currently, two theories of state immunity are applied in the world: the doctrine of absolute immunity and the doctrine of functional (limited) immunity.

The doctrine of absolute state immunity is enshrined in the legislation of the Russian Federation (Article 401 of the Code of Civil Procedure, Article 251 of the APC). These procedural provisions recognize the absolute immunity of a foreign state on the territory of the Russian Federation and establish the possibility of bringing any foreign state to responsibility in the judicial authorities of the Russian Federation with the express consent of this state. Thus, Russian procedural law is based on the concept of a "contractual, diplomatic" waiver of immunity. This is contrary to the provisions of Art. 124 and 1204 of the Civil Code - the state participates in civil law relations on an equal footing with its private partners.

In the contractual practice of the Russian Federation, the doctrine of functional immunity is used. Bilateral international agreements on the mutual protection of foreign investments enshrine the voluntary and explicit waiver of the Russian state's immunity (treaties between the Russian Federation and Hungary, the United States, and South Korea).

The privileges and immunities of diplomatic and consular officials are enshrined in the WFP and are inextricably linked to the sovereignty of the state. Official representatives of a state must be able to freely perform their functions in another state as representatives of a sovereign state. This is the basis for their exemption from civil jurisdiction in the host state. However, international law also provides for exemptions from diplomatic and consular immunities. The Vienna conventions on diplomatic relations of 1961 and consular relations of 1963 contain a list of grounds for refusing to grant immunities in civil cases.

14.4. International jurisdiction

The concept of "jurisdiction" in the aspect of the MPP means the sphere of the sovereign power of the state in the field of legislation, courts and administration. In this case, the term jurisdiction is equivalent to the term state power. In the aspect of PIL and IHL, the concept of "jurisdiction" has a different content. This concept is used as identical to the concept of "international jurisdiction", that is, the competence of the judicial apparatus and administrative bodies of a given state to resolve civil cases with a foreign element. It is necessary to distinguish from the concept of international jurisdiction the concept of international jurisdiction - the competence of certain parts of the judicial system of a given state to consider specific categories of civil cases with a foreign element.

In national law, various conflict criteria are used to determine the competence of courts and international jurisdiction: the law of the nationality of the parties; the law of the defendant's place of residence; the law of the location of the disputed thing; the principle of the closest connection; personal presence of the defendant in the territory of this state (law of the court). The limits of the competence of the national judicial authorities are determined by the national civil procedure legislation.

One of the most difficult problems of IHL is the conflict of jurisdictions. It can manifest itself in two ways: negative conflict - two or more states reject the jurisdiction of this case to their justice authorities; positive - two or more states claim the jurisdiction of the case in their national courts. Rules on international jurisdiction are the best way to resolve conflicts of jurisdiction. A conflict of jurisdictions must be distinguished from a conflict of qualifications of legal concepts. In the first case, we are talking about deciding which state's court is competent to consider this case, and in the second, by the law of which state the legal concepts contained in the conflict of laws rules should be interpreted.

We indicate the types of international jurisdiction:

1) exclusive - the dispute is jurisdictional only to the courts of a certain state with its exclusion from the jurisdiction of the courts of any other state;

2) alternative - the parties have the right to choose between the courts of their states, if these courts are equally competent to consider this dispute;

3) contractual - determination of jurisdiction based on the agreement of the parties in favor of the court of any state.

Treaty jurisdiction is one of the most complex institutions of IHL, since it is based on the possibility to change the rules of international jurisdiction by agreement of the parties. Contractual jurisdiction is formalized in prorogation and derogation agreements. A derogation agreement is the exclusion of a case from the competence of the court of a given state (although it is within its jurisdiction under local laws) and its transfer to a court of a foreign state. A prorogative agreement is 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, it 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.

International jurisdiction under the legislation of the Russian Federation is established in Ch. 44 Code of Civil Procedure and Ch. 32 APK. The interpretation of the basic principles of the Code of Civil Procedure allows us to conclude that the competence of the Russian courts of general jurisdiction also includes the consideration of civil cases with a foreign element. The basic rule for establishing jurisdiction is territorial jurisdiction at the place of residence of the defendant (clause 2, article 402 of the Code of Civil Procedure). The legislation enshrines a list of cases of occurrence of special jurisdiction in cases with foreign participation by Russian courts (clause 3 of article 403 of the Code of Civil Procedure). It is also possible to choose jurisdiction at the request of the plaintiff. The Russian legislator has also defined a list of cases involving foreign persons that are exclusively within the jurisdiction of Russian courts (Article 403 of the Code of Civil Procedure). The Russian IHL recognizes contractual jurisdiction (Article 404 of the Code of Civil Procedure). However, there are exceptions to the general principle of recognizing the right of the parties to choose jurisdiction (clause 2, article 404 of the Code of Civil Procedure). Special rules on jurisdiction are established in cases of divorce (art. 16 °CC).

Rules on international jurisdiction Art. 247 of the APC establish a general rule - Russian arbitration courts are competent to consider disputes with foreign participation if the defendant is located or has a place of residence on the territory of the Russian Federation. Additional criteria for the jurisdiction of cases to Russian arbitration: the location of a branch or representative office of a foreign legal entity or the property of the defendant in the territory of the Russian Federation; fulfillment of the obligation must take place on the territory of the Russian Federation; the tortious obligation is connected with the territory of the Russian Federation, etc. The exclusive competence of the arbitration courts of the Russian Federation in cases with foreign participation is enshrined in Art. 248 APK. Contractual arbitration jurisdiction is recognized (in the form of prorogation). Foreign agreements on the competence of Russian arbitration courts are allowed - agreements on competence (Article 249 of the APC). For agreements on competence, a mandatory written form is required (paragraph 2 of article 249 of the APC).

Many international agreements also contain rules for establishing international jurisdiction. The 1993 Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of the CIS countries contains an expanded range of rules on international jurisdiction (delimitation of competence): general provisions on jurisdiction and special jurisdiction of certain types of civil and family cases. The Convention enshrines the rules on exclusive competence. The possibility of contractual jurisdiction on the basis of a written agreement of the parties has also been established.

14.5. Execution of foreign letters of request

The procedural activity of the judiciary is limited to the state territory. However, very often there is a need to carry out such activities abroad. In such cases, it is necessary to obtain the consent of a foreign state for the production of procedural actions of another state on its territory. Letter of request is an appeal of the court of one state to the court of another state with a request to perform any procedural actions on the territory of this state.

A letter of request is a type of legal assistance, the obligation to provide which is fixed in international agreements and national laws. The main forms of legal assistance provided in the execution of foreign letters of request: drafting, certification, forwarding, delivery of documents; providing physical evidence; interrogation of witnesses, experts and other persons for the purposes of legal proceedings; communication of information about the current law.

The order of appeal of the courts of one state to the courts of other states:

1) direct communications between courts;

2) diplomatic and consular way - applying to the ministries of foreign affairs, embassies and consulates;

3) the use of specially appointed representatives;

4) transfer of instructions through the central bodies of justice. The procedure for executing an order of a foreign court is governed by the law of the state where the order is executed.

In continental law, a general procedure is established: letters of request are transmitted through diplomatic channels, unless otherwise provided by an international treaty. Judicial practice - legal assistance is provided on the basis of reciprocity. When executing an order, the civil procedural law of the state where the order is executed is used. Orders aimed at performing procedural actions prohibited by the law of the state executing the order are not executed. The procedure and conditions for the execution of instructions are mainly established not in the law, but in the rules and instructions of the ministries of justice.

In Anglo-American law there is no general concept of legal assistance. The institution of special commissioners (commission agents) is widely used. The possibility of direct communication between the courts when requesting the execution of an order is provided. The main problem is that, in Anglo-American courts, evidence obtained under civil procedural law may not be legally binding. On the other hand, for European courts, the actions of commission agents may appear as a violation of their state sovereignty.

In the legislation of the Russian Federation, the general procedure for the execution of foreign court orders is established in Art. 407 Code of Civil Procedure and Art. 256 APK. In the absence of an international treaty, legal assistance may be provided in the manner and under the conditions of international comity. There is no requirement of reciprocity. The diplomatic route is the main mode of transmission of Letters of Request. The general rule is that the procedure for executing an order of a foreign court on the territory of the Russian Federation is regulated exclusively by Russian law. The current trend is that at the request of a foreign state, it is possible to execute an order using its procedural law. Grounds for refusal to provide legal assistance: the execution of an order may damage the sovereignty of the Russian Federation or threaten the security of the Russian Federation; execution of the order is not within the competence of the court.

The main number of bilateral international treaties in the world concerns the provision of legal assistance in civil, family and criminal cases. From the point of view of international legal regulation, the provision of legal assistance is an obligation of the state under international law. Bilateral agreements define the subject and scope of legal assistance, the "route" of letters of request. Both the use of diplomatic channels and direct relations between the justice authorities and the courts are envisaged. Legal assistance is provided free of charge.

Among the multilateral international agreements on legal assistance, the main universal regulator of the procedure for the execution of letters of request is the Hague Convention on Civil Procedure of 1954. The Convention defines the concept of "judicial documents" and establishes a general rule that the order is transmitted by consular means. It is possible to deviate from this rule: the use of both the diplomatic route and direct relations of the judiciary. The states are obliged to execute instructions, except for the cases listed in the Convention.

14.6. Recognition and enforcement of foreign judgments

Decisions of national judicial authorities have territorial effect. Judgment is part of the legal order of the state in whose jurisdiction it was made. It is permissible to recognize and enforce the decisions of national courts in other states in cases stipulated by the legislation of these states or international agreements. Legal consequences of the recognition of a foreign judgment - a judgment recognized abroad receives the same legal force as the decisions of local courts (i.e., it acquires the properties of irrefutability, exclusivity, enforceability, binding on officials and bodies of this state).

Court decisions (depending on the category of cases) may only require their recognition. Recognition of a foreign judgment is a necessary prerequisite (condition) for its enforcement. Compulsory execution is possible only by virtue of an appropriate order of the competent authorities of the state where enforcement is requested. The legislation provides for a special procedure for the resolution of execution. Common to all states is the principle of reciprocity as a condition for enforcement.

The main systems for the enforcement of foreign judgments are:

1) execution requires verification of the correctness of the decision of a foreign court in terms of form, establishment of its compliance with the public policy of the state of the place of execution;

2) the issuance of an exequatur is necessary; it is possible to verify the decision on the merits, if it is made against a local citizen;

3) registration of a foreign judgment in a special register (in states that provide each other with reciprocity).

The system of exequatur is the adoption of a court order that authorizes the execution of a foreign judgment, gives it coercive power. The judgment is recognized or enforced as such. Options for the exequatur system:

1) the admissibility of the revision of the case on the merits - the court authorizing the enforcement subject the foreign decision to a complete revision in terms of the correctness of the resolution of the case on the merits;

2) the possibility of only limited control by the court authorizing the execution - the court does not check the correctness of the resolution of the case on the merits, but has the right to make a complete audit in exceptional cases at the request of the debtor;

3) exequatur is issued only on the condition of reciprocity. Conditions for issuing an exequatur: the decision must not be contrary to the public policy of the state where the decision is executed; the debtor was duly notified of the time and place of the trial. The grounds for refusal to issue an exequatur are listed in the legislation. An exequatur is a special ruling only for the execution of a decision or for its recognition.

According to Russian legislation, decisions of foreign courts are recognized and enforced on the territory of the Russian Federation in accordance with international treaties and federal laws of the Russian Federation (Article 409 of the Code of Civil Procedure and Article 241 of the APC). Decisions that are not subject to compulsory execution are recognized in the Russian Federation if it is provided for by an international treaty or the legislation of the Russian Federation (Articles 413, 415, 416 of the Code of Civil Procedure). Grounds for refusal to recognize foreign judgments and arbitral awards (Article 414 of the Code of Civil Procedure and Article 244 of the APC): the decision has not entered into force; the party against whom the decision was made was not notified of the place and time of the hearing; the case falls within the exclusive jurisdiction of law enforcement agencies of the Russian Federation; in this case there is a decision of the judicial body of the Russian Federation that has entered into legal force; recognition of the decision is contrary to the public policy of the Russian Federation.

The general procedure for the enforcement of decisions of foreign courts is defined in Art. 409 Code of Civil Procedure and art. 246 APK. In order to consider a case on the possibility of enforcement of a decision, it is necessary to apply for a claimant to allow enforcement at the place of residence of the debtor or the location of his property (Article 410 of the Code of Civil Procedure and Article 242 of the APC). The grounds for refusing to allow the enforcement of foreign judgments are in principle the same as the grounds for refusing recognition (Article 412 of the Code of Civil Procedure and Article 244 of the APC). The legal significance of the recognition of foreign judgments lies in the fact that it confirms civil rights and obligations in the same sense as the decisions of a Russian court.

Bilateral treaties on legal assistance establish a mutual obligation to recognize and enforce the decisions of the justice authorities of the contracting states. The contracts define a wide range of decisions to be recognized and enforced. Consideration of a petition for permission to enforce is within the competence of the authorities of the state in whose territory the decision is to be enforced. Decisions are subject to recognition and execution without revising them on the merits. In cases of simple recognition, decisions are recognized regardless of the time of their adoption and the moment the legal relationship arises. Recognition without enforcement is carried out without further proceedings. The basic principle of enforcement is the application of the laws of the country of execution. Compulsory execution is carried out on the basis of the principle of execution (contracts of the Russian Federation with the Czech Republic, Poland, Greece, Cuba).

The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993 of the CIS states stipulates that each of the contracting states is obliged to recognize and execute a decision made in the territory of other contracting countries in civil and family cases. Decisions that do not require enforcement are recognized without further proceedings, subject to certain conditions. An application for permission for compulsory execution is submitted to the competent authority of the state of the place of execution. The Convention lists the grounds for refusing recognition and enforcement of judgments.

The 1954 Hague Convention on Civil Procedure defines a very narrow range of cases involving recognition and enforcement abroad. There is a diplomatic way of requesting the execution of the decision; at the same time, the possibility of a simplified procedure for handling was established. Consideration of the issue of permission for compulsory execution is carried out by the competent authorities of the state of the place of execution in accordance with its national legislation. The court of the place of execution does not consider the foreign decision on the merits, but confines itself to establishing its formal correctness.

14.7. Notarial acts in private international law and international civil procedure

The main tasks of the notary in the field of legal relations with a foreign element - the notary is designed to ensure the protection of the rights and legitimate interests of citizens and legal entities, including foreign citizens and stateless persons, by performing notarial actions provided for by national legislation. Functions of a notary: certification of documents intended for action abroad; acceptance of documents drawn up abroad; protection of property left on the territory of this state after the death of a foreign citizen; protection of property that is inherited by a foreigner after the death of a local citizen; providing evidence required for conducting a case in the bodies of a foreign state.

The notary applies the norms of foreign law in accordance with international treaties and national legislation. The procedure and conditions for the application of foreign law by a Russian notary are established in the Fundamentals of the Legislation of the Russian Federation on Notaries dated February 11.02.1993, 4462 No. 1-1186 and the Civil Code (Art. 1193-XNUMX).

Notarial functions of consular institutions: protection of hereditary property, issuance of a certificate of the right to inheritance; certification of the accuracy of copies of documents and extracts from them; certification of transactions; representation of the interests of citizens of their state in civil proceedings. The powers of the consul in the field of notarial acts are enshrined in consular conventions.

The legislation enshrines the right of a notary to apply to foreign judicial authorities with instructions to perform certain notarial acts in the manner prescribed by international treaties and national law. The conditions and procedure for the execution of foreign notarial orders, the grounds for refusal to execute are listed in the legislation.

Documents drawn up abroad and coming from officials of the competent authorities of a foreign state are accepted in another state, subject to their legalization by the Russian Foreign Ministry. Legalization is a consistent series of certificates of signatures of officials and the quality in which they act; certification of the authenticity of seals and stamps that fasten documents. Legalization is a chain of identities. Russian courts recognize documents issued, drawn up or certified by the competent authorities of foreign states (Article 408 of the Code of Civil Procedure and Article 255 of the APC) in the presence of legalization, unless otherwise established by an international treaty of the Russian Federation or federal law.

A simplified legalization procedure is consular legalization, which is a special inscription of the consul on the document and certifies the authenticity of the signature of an official of a foreign state. Consular legalization is not only the establishment and certification of the authenticity of signatures, but also the certification of compliance of documents and acts with the laws of the host state. The provisions on consular legalization are enshrined in the Consular Charter of the Russian Federation, approved by the USSR Law of 29.10.1976/XNUMX/XNUMX. Cancellation of the requirement of consular legalization can be established in the norms of international agreements.

The Hague Convention on the Abolition of the Requirement of Legalization for Foreign Public Documents of 1961 establishes a rule - instead of successive legalization operations, a single formality is required: affixing by the issuing authorities of the document, an apostille - the only authenticating inscription on the document, the same in form for all participating States . The apostille is affixed on the document itself or on a separate sheet attached to the document itself. A sample Apostille is attached to the Convention. Refusal to affix an apostille may be appealed in court. The significance of the Convention lies in facilitating and simplifying the procedure for processing documents that must be submitted to foreign official bodies. The Convention abolishes the requirement of diplomatic or consular legalization for a certain list of documents. In Russian arbitration courts, documents of foreign origin are accepted subject to an apostille (Article 255 of the APC).

The 1993 Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of the CIS countries and bilateral agreements on legal assistance of the Russian Federation provide for a simplified procedure for the validity of official documents of one state party on the territory of other states. There is no legalization requirement; limited use of the Apostille. Apostille cannot be required if the document is in principle exempt from legalization. The Convention defines the range of bodies and officials who draw up and certify documents exempt from legalization.

Topic 15. INTERNATIONAL COMMERCIAL ARBITRATION

15.1. Legal Nature of International Commercial Arbitration

The ICA is a special mechanism for resolving international commercial (economic) disputes of a private law nature. The state can also be a party to the dispute, but the content of the dispute is necessarily of a private law nature, and the second party is necessarily a person of private law. The ICA, or arbitration court, is a court elected in accordance with the will of the parties to resolve a dispute between them. The dispute is considered by an independent arbitrator, chosen by the parties on the basis of his professional qualities in order to issue a final and binding decision for the parties. The ICA removes disputes on the interpretation and execution of commercial contracts from the competence of national courts of general jurisdiction.

The concept of "ICA", just like the concepts of PIL and IHL, is conditional and means the presence of a foreign element in the case. The ICA has an arbitration character and is established in accordance with national law. Its activity is the activity of a national law enforcement body based on the norms of national legislation. The advantages of arbitration are as follows: short duration of the case; lower costs and fees; observance of trade secrets; free choice by the parties of arbitrators, procedure, place and language of arbitration proceedings; the final and binding nature of the award (res iudicata); ensuring the enforcement of foreign arbitral awards by an international legal contractual mechanism.

The ICA is not an element of the state judicial system and does not depend on it in its activities. This is not a state, but a public organization established in accordance with national law. The appeal of the parties to arbitration excludes the consideration of the dispute in the courts of general jurisdiction. However, there is no complete isolation of the ICA from the state judicial system. Procedural actions related to the execution of arbitral awards and performed by courts of general jurisdiction:

1) implementation of compulsory measures for preliminary securing of the claim;

2) enforcement of the arbitral award.

15.2. Types of International Commercial Arbitration

The essence of the ICA is determined by the nature of the cases under consideration - these are disputes over civil law relations in the field of foreign trade. The generally accepted concept of the ICA - the jurisdiction of the arbitration court is based only on the principle of the autonomy of the will of the parties in their contractual relations. The autonomy of the will in the ICA is understood as a source of law. The nature of the ICA as a non-state entity is due precisely to the agreement of the parties, which is a source of law (lex privata).

Institutional, or permanent, arbitration is created at national trade (commercial and industrial) chambers, stock exchanges, associations, unions. The basis of functioning is a special national law and the regulations of such an ICA adopted on its basis. The arbitration proceeding is based on the procedure established in the rules. There is a list of permanent arbitrators, from which the parties themselves choose arbitrators. This type of ICA is most preferable in dealing with complex cases involving intricate and intractable disagreements, problems in the application of law. Currently, there are more than 100 institutional arbitrations in the world operating in various states (Arbitration Institute of the Stockholm Chamber of Commerce, American Arbitration Association, London International Arbitration Court, etc.)

Isolated (one-time) arbitration, or ad hoc arbitration, is created by the parties to consider a specific case. After the end of the proceedings and the issuance of a decision, it ceases to exist. The parties choose the place of arbitration, establish the rules for the election of arbitrators and the arbitration procedure themselves. Isolated arbitration is based on the practically unlimited autonomy of the will of the parties in choosing the procedure for resolving the dispute. Detailed coordination of the procedure, its regulation on the basis of the regulations of institutional arbitrations or model regulations developed by international organizations is possible. The parties have the right to agree on making any changes to the regulations. Isolated arbitration is the most effective means of resolving disputes related to factual circumstances, such as checking the quality of goods, determining their price.

15.3. Law Applicable by Arbitration

The arbitration agreement may include a clause about the applicable law to which the contract is subject. Most often, such a clause is an independent condition of the contract. The choice of law is addressed not so much to the arbitrators as to the parties themselves, since this is an indication of the law of which state the rights and obligations of the parties will be determined, regardless of whether the need for arbitration of the case arises. Sometimes the clause on the applicable law subordinates the contract not to the laws of a particular state, but to the "law of equity" (ex acque et bono), either the MCP (lex mercatoria), or international trade customs (INCOTERMS). An appropriate indication must be included in the contract. The provision is fixed in Russian legislation: the specifics of determining the law subject to application of the ICA are established in the law on the ICA (paragraph 2, clause 1, article 1186 of the Civil Code).

The principle of the autonomy of the will of the parties is one of the fundamental principles of arbitration proceedings. The arbitral tribunal considers the dispute precisely in accordance with the rules of law that the parties have chosen as applicable to the merits of the dispute. Consideration of the dispute in the ICA excludes the use of references of both degrees. Any reference to the law of a State must be construed as referring directly to the substantive law of that State and not to its conflict of laws rules.

If the parties have not chosen the applicable law, the arbitral tribunal itself determines the applicable law in accordance with the conflict of law rules that the arbitration considers necessary to apply. In all cases, the ICA makes a decision in accordance with the terms of the contract and taking into account international trade customs. The choice of the conflict of laws rule that ultimately determines the applicable substantive law depends on the venue of the arbitration. The European Convention on Foreign Commercial Arbitration of 1961 establishes the rule: the ICA applies the conflict of laws of the place of arbitration. The place of arbitration shall be determined either by agreement of the parties or by the residence of the umpire. In modern practice, there is a tendency to limit the effect of the presumption "who chose arbitration, he chose the law."

15.4. Arbitration Agreement

The arbitration agreement is 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. The arbitral tribunal may only accept a case if there is a clear agreement between the parties. 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) an arbitration clause is an agreement between 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. The arbitration clause is the most common type of arbitration agreement, a kind of security instrument for the fulfillment of contractual obligations, which guarantees a qualified dispute resolution and the possibility of enforcement of the decision;

2) an arbitration record 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. In practice, the conclusion of an arbitration record is difficult to achieve, since the interests of the parties may be fundamentally opposed;

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

All three types of arbitration agreement, in fact, are no different, have the same legal force: these are three forms of the same phenomenon - agreements of the parties on arbitration proceedings. National laws and international treaties do not make any legal distinction between certain types of arbitration agreements.

The jurisdiction of arbitration may be based on the rules of an international treaty - an arbitration agreement between states. This interstate agreement is obligatory both for national parties to commercial disputes and for arbitration bodies specified in the agreement. The arbitration cannot refuse to consider the dispute, referring to the absence of a special agreement between the parties.

The principal feature of the arbitration agreement is its legally autonomous, independent nature in relation to the main contract. The validity of an arbitration agreement is independent of the validity of the underlying contract. This provision is of particular importance if the jurisdiction of arbitration is stipulated in the text of the contract itself in the form of an arbitration clause. The fundamental principle of the ICA is the legal autonomy of the arbitration agreement and the fundamental voluntariness of the arbitration proceedings. Any arbitration agreement, including those included in the text of an international commercial contract, is considered independently of the main contract, and the recognition of the contract as invalid (in whole or in any part) does not lead to the annulment of the arbitration agreement, does not deprive the arbitrators of the right to consider issues related to invalidity of the contract. This principle is enshrined in most national laws, in international agreements, in arbitration practice.

15.5. Form and Content of the Arbitration Agreement

As a general rule, a mandatory written form of arbitration agreements is required. This requirement is enshrined in the norms of international conventions, in model laws on arbitration. In the legislation of the states, an oral form of arbitration agreement is allowed. Such differences are the source of numerous problems related to the interpretation and recognition of the validity of the arbitration agreement. World arbitration practice proceeds from the need for a written form of arbitration agreements in the broad sense of the word: both the agreement itself, and the exchange of letters or statements of claim, and a link to the document directly containing the arbitration clause.

The content of the arbitration agreement depends on the will of the parties, who independently determine its elements. Model arbitration clauses have been developed in world practice and national legislation. The elements of an arbitration agreement are: an arbitration clause (with the exception of the jurisdiction of courts of general jurisdiction or other state courts); choice of the type of arbitration and the place of its holding; the choice of the language of the arbitration and the number of arbitrators; determination of the order of the arbitration procedure (institutional arbitration, as a general rule, resolves the dispute according to the laws of its country and in accordance with its regulations).

A distinctive feature of arbitration lies in the almost unlimited right of the parties to independently establish a dispute resolution procedure, therefore, the vast majority of legal norms that determine the arbitration process are dispositive in nature and apply only when the parties have not provided otherwise. In the arbitration agreement, the parties are free to provide for any rules of arbitration procedure, even if they apply to institutional arbitration. The limits of this freedom are the mandatory rules of national law and the public policy clause. When choosing an isolated arbitration, the parties are obliged to establish the rules of the arbitration procedure, since such a body does not have its own rules. If the parties themselves have not resolved the procedural issues in the arbitration agreement, this does not deprive them of the right to arbitration. The appointed arbitrators will be guided by such procedural rules as they determine for themselves.

15.6. Recognition and enforcement of foreign arbitral awards

One of the advantages of the ICA is the presence of a system developed at the national and international levels for the recognition and enforcement of arbitral awards made in the territory of a foreign state. The basis of this system is laid down in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. The rules on the recognition and enforcement of foreign arbitral awards are also found in other international treaties: the European Convention on Foreign Trade Arbitration of 1961, the Inter-American Convention on International Commercial Arbitration 1975, Arab Convention on International^ Commercial Arbitration 1987

The New York Convention establishes the principle of recognition of written arbitration agreements. Each State party is obliged to recognize foreign arbitral awards and enforce them in its territory in accordance with its own procedural law. The definition of a foreign arbitral award is an award of an arbitral tribunal rendered in the territory of a State other than the State in whose territory recognition and enforcement of the award is sought. The territorial criterion is the basis for determining an arbitral award as foreign. This provision applies equally to all types of arbitration. An additional criterion: the concept of "foreign" includes those decisions that are not considered domestic in the state of the place of their execution. The scope of the Convention is only foreign arbitral awards.

The main content of the New York Convention is to establish the obligation of states to recognize foreign arbitral awards as binding and enforce them. This refers to arbitral awards on disputes in which individuals and legal entities are parties. It establishes the right of each state to the reservation that it limits the application of the Convention only to disputes arising from commercial contracts. In such a case, the given state shall not have the right to require other participating states to enforce the decisions of its arbitration bodies in other cases.

Recognition of arbitral awards is possible only if there is a written arbitration agreement. In deciding whether a dispute may be subject to arbitration, the law of the State where recognition and enforcement is sought and the law of the State to which the parties have subjected the arbitration agreement are decisive. States recognize and enforce foreign arbitral awards in accordance with their national law. Enforcement of arbitral awards requires an additional procedure, the interested party must submit an appropriate application, duly executed. The recognition and enforcement of arbitral awards within the scope of the Convention should not be subject to more onerous conditions or higher fees and charges than exist for the recognition and enforcement of domestic arbitral awards.

The Convention establishes an exhaustive list of grounds for refusing to recognize and enforce arbitral awards:

1) grounds for refusal at the request of the party against whom the decision was made: one of the parties is incompetent under its personal law; the arbitration agreement is invalid under the law to which the parties have subjected it, or the law of the state where the award was made; failure to properly notify the party of the time and place of the arbitration; arbitration has gone beyond its competence; violations of the arbitration procedure. The burden of proving that there are grounds for refusing to enforce is on the interested party;

2) grounds for refusal by the competent authorities of the state of the place of execution of the decision: the object of the dispute cannot be the subject of arbitration under the law of the state where recognition and enforcement are requested; recognition of the judgment and enforcement of it is contrary to the public policy of that State.

The European Convention on Foreign Commercial Arbitration of 1961 does not contain special rules on the recognition and enforcement of foreign arbitral awards, but provides for the possibility of declaring an arbitral award invalid either in the state where the award was made or in the state under whose law the award was made. Declaring a decision invalid implies its cancellation and, accordingly, the refusal to recognize and enforce it.

According to the legislation of the Russian Federation (Articles 416-422 of the Code of Civil Procedure, Chapters 30, 31 of the APC), the procedure for the execution of decisions of foreign courts and arbitrations is determined by international treaties of the Russian Federation. Conditions for the execution of decisions:

1) the existence of contractual reciprocity - it is necessary to have an international agreement on the mutual enforcement of decisions that establishes specific conditions for such enforcement;

2) non-expiration of the 3-year limitation period for presenting the decision for execution.

Law of the Russian Federation of July 07.07.1993, 5338 No. 1-35 "On International Commercial Arbitration" reproduces the rules of the New York Convention on the Recognition and Enforcement of Arbitral Awards. An arbitral award, regardless of the state in which it was made, is recognized as binding and, subject to the necessary formalities, can be enforced. The provisions of the Law apply equally to domestic and foreign arbitral awards (made by any arbitral tribunal). Article XNUMX of the Law establishes that foreign arbitral awards are equated with Russian ones. An exhaustive list of grounds for refusing recognition and enforcement of foreign arbitral awards has been fixed, which fully coincides with the corresponding rule of the New York Convention.

Recognition of the decision, i.e. recognition of the rights and obligations of the parties arising from it, does not require an additional procedure. For the enforcement of the decision, an additional procedure is required: filing a petition with the competent court of the Russian Federation (general rule - at the place of residence of the debtor or the location of his property). The procedure for considering a petition and the procedure for executing a decision are defined in the Federal Law of July 21.07.1997, 119 No. XNUMX-FZ "On Enforcement Proceedings". The most difficult problem is to resolve the issue of measures to secure the claim in advance. According to the Law of the Russian Federation "On International Commercial Arbitration", the arbitral tribunal, at the request of a party, may order the adoption of such interim measures in relation to the subject of the dispute, which the court considers necessary. A party has the right to apply to a court of general jurisdiction with a request to take measures to secure the claim in advance.

15.7. International commercial arbitration in the Russian Federation

The main bodies for resolving international commercial disputes in Russia are the ICAC and the MAC. The activities of the ICAC are regulated by the Law of the Russian Federation of 07.07.1993 No. 5338-1 "On International Commercial Arbitration", the Regulations on the ICAC at the Chamber of Commerce and Industry (annex to the Law), the Rules of the ICAC approved by the Chamber of Commerce and Industry (entered into force on 01.05.1995). The competence of the ICAC includes consideration of disputes under international commercial contracts in the presence of an arbitration agreement of the parties. The ICAC accepts disputes for consideration without agreement of the parties, if its competence is established by an international treaty of the Russian Federation. All three types of arbitration agreements are recognized. The obligation of their written form (in the broadest sense) is fixed. The Law of the Russian Federation "On International Commercial Arbitration" provides for a model arbitration clause.

The presence of an arbitration agreement excludes the jurisdiction of state courts and general jurisdiction, and arbitration (economic). The agreement of the parties on the arbitration of the dispute obliges the state courts to terminate the proceedings on the case (Articles 134, 135 of the Code of Civil Procedure and 148 of the APC). The law provides for exceptions to this rule. The jurisdiction of the ICAC is determined by its competence.

The IAC operates on the basis of the Regulations on the IAC at the CCI (Annex to the Law "On International Commercial Arbitration"). The IAC regulation is also approved by the Chamber of Commerce and Industry. The IAC has the right to resolve disputes on the basis of the agreement of the parties to refer them to this arbitration court. The IAC is distinguished by a narrow, special nature of competence - these are disputes from civil law relations related to merchant shipping. The difference from the ICAC is that when determining the competence of the IAC, the subject composition of the dispute does not matter. The Regulation on the IAC establishes an approximate list of relations, disputes from which are within its competence.

The specificity of arbitration proceedings and its characteristic feature lies in the almost unlimited right of the parties to establish a procedure for resolving disputes. Autonomy of will is the fundamental basis of the Law of the Russian Federation "On International Commercial Arbitration" and the regulations of the ICAC and the MAC. The absolute majority of the rules that define the arbitration procedure are applied only in the absence of an agreement between the parties and are dispositive in nature. The autonomy of the will is a decisive moment in the formation of the arbitral tribunal, determining the procedure for the proceedings.

The Law of the Russian Federation "On International Commercial Arbitration" establishes several mandatory provisions aimed at impartial and fair resolution of the dispute. These are the original principles of the arbitration process: requirements that arbitrators must meet; imperative norms on ensuring the equality of the parties in the process; obligations of arbitration towards the parties. In all other matters, the parties themselves determine the arbitration procedure. In the absence of an agreement between the parties, the ICA uses its Rules or resolves the dispute as it sees fit. This Law does not provide for the obligation of the ICA to apply to the current civil procedural legislation.

The ICA has the power to decide on its competence. For the first time in Russian history, the law consolidated the rule generally accepted in world practice on the autonomy and legal independence of the arbitration clause, i.e., the direct dependence of the competence of arbitration on the arbitration agreement. The Law contains rules regarding the declaration of lack of competence by the parties, options for such a declaration and rules regarding the decision of the arbitral tribunal on its competence.

BIBLIOGRAPHY

Normative acts