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Lecture notes, cheat sheets
International private law. Cheat sheet: briefly, the most important
Directory / Lecture notes, cheat sheets Table of contents
1. CONCEPT AND SUBJECT OF PRIVATE INTERNATIONAL LAW International Private Law (IPL) - this is a set of substantive and conflict of laws rules governing civil law relations in the broad sense of the word with a foreign element, as well as the procedure for resolving disputes over these relations. Material norms regulate civil, criminal and administrative-legal relations. They establish rights and obligations, that is, they regulate the relations of the subjects of certain relations. Conflict rules are a feature of PIL. Unlike substantive norms, they do not regulate relations on the merits, determining only the law of which state should be applied. The subject of PIL is designated through regulated relations. PIL subject constitute civil law relations in the broad sense of the word with a foreign element. PIL relations are characterized by two features: 1. Regulation area - civil law relations. In a broad sense, they include marriage and family, labor relations, as well as procedural relations for the settlement of private law disputes. 2. In a regulated relationship there must be a foreign element. It can be distinguished by the subjects of the relationship, by the object of the relationship or by the legal act on the basis of which the relationship arises, changes or terminates. Examples of civil law relations with a foreign element: a Russian company enters into a contract with a foreign company; a citizen of the Russian Federation inherits real estate located abroad; a citizen of the Russian Federation suffered damage on the territory of a foreign state. The presence of a foreign element indicates that it is necessary to apply PIL rules. This causes the following problems: - the law of which state should be applied; - which state court is competent to consider this dispute. Therefore, PIL includes not only substantive and conflict of laws rules, but also a number of procedural rules, and the subject of PIL includes some procedural relations. Arguing about the place and role of PIL in the system of law, it is usually referred to as a branch of civil law. Therefore, it is no coincidence that they say that PIL is a kind of superstructure of civil law. In science, there are other points of view. So, given that the sources of PIL are international treaties, conventions and agreements, it is referred to as public international law or, combining both legal disciplines, they speak of international law in the broad sense of the word. PIL is a specific legal discipline that operates only with its inherent mechanisms, however, one cannot but agree that PIL, as a private law discipline, is most closely related to civil law, which is reflected in its system. 2. SYSTEM OF INTERNATIONAL PRIVATE LAW The PIL system is similar to the civil law system. It consists of General и special parts. a common part includes: - definitions of the basic concepts of this legal discipline (concept, subject, history of the development of PIL); - composition and characteristics of sources of PIL; - the doctrine of conflict rules (the concept, types, structure of conflict rules, types of conflict bindings, as well as problems associated with the application of conflict rules: reciprocity, qualification, mandatory rules in PIL, circumvention of the law, references, public policy clause, establishing the content of a foreign law); - legal status of PIL subjects (individuals or legal entities participating in civil law relations with a foreign element). In the special part the legal regulation of certain types of relations with a foreign element is studied: - relations under the right of ownership and other property rights with a foreign element (conflict issues of property rights, protection of cultural property, inheritance with a foreign element); - foreign investments (investment regime, guarantees to foreign investors, mechanisms for investment insurance and settlement of investment disputes); - transactions with a foreign element and foreign economic transactions (purchase and sale, settlements, transportation, insurance, agency agreements); - relations on intellectual property with a foreign element (protection of copyrights and industrial property rights of foreigners in the Russian Federation, as well as protection of such rights of citizens of the Russian Federation abroad); - marriage and family relations with a foreign element (marriage and divorce, international adoption, maintenance obligations); - obligations as a result of causing harm; - international civil procedure (legal status of foreigners in courts, international jurisdiction, legalization of foreign public documents, recognition and enforcement of foreign judgments); - international commercial arbitration (alternative ways of resolving disputes on civil law relations with a foreign element). 3. DUAL CHARACTER OF PRIVATE INTERNATIONAL LAW AND ITS METHODS OF LEGAL REGULATION The dual nature of PIL is due to various factors. First of all, PIL includes substantive and conflict rules. Therefore, in the MCHP, one can single out two main methods legal regulation: - material and legal; - conflict law. In addition, since the sources of PIL can be national legal and international legal sources of legal regulation, we can also single out national legal (civil) and international legal methods legal regulation. In addition, it should be noted that the norms developed by private individuals independently play a regulatory role in PIL. Therefore, it is possible to add to the methods of legal regulation of PIL state method regulation, which is carried out through international conventions, agreements, treaties, national legal acts and other sources that are the result of the rule-making of states and other state bodies, intergovernmental organizations, etc., as well as non-state method regulation, which is self-regulation by participants in civil relations based on the principle of freedom of contract and autonomy of will, recognized in all states. In modern PIL, state and non-state methods of regulation are combined. A vivid expression of non-state regulation is lex mercatoria concept, which is understood as the right of merchants or merchants, i.e., a set of norms developed by private individuals independently. The beginnings of self-regulation in the communities of merchants originated quite a long time ago, in the XNUMXth-XNUMXth centuries. However, only at the present stage of the development of PIL, this concept received scientific justification and was widely recognized, having established itself in the sources of state regulation. 4. PREREQUISITES FOR THE ORIGIN OF PRIVATE INTERNATIONAL LAW, ITS MAIN THEORIES The term "private international law" appeared in 1834 and has been widely used since the time when a member of the US Supreme Court D. Storey used it in his work "Comments on the Law of Conflict". Conflict, i.e., conflict of law, to this day in Western countries is considered as PIL (international private law). Some scholars already see the beginnings of PIL in Roman private law. Praetors in their decisions formed the rules applied to relations involving persons who were not citizens of the Roman Empire. But conflict regulation, the basis of MCHP, appeared only in the XII-XIII centuries. The socio-economic prerequisites for this process were: the emergence of state-like entities; development of social, trade, economic and other exchanges between these cities and territories. In a feudal society based on natural exchanges and attachment to the land, the development of trade and economic exchanges slowed down. With the development of bourgeois society, the strengthening of state power and the isolation of sovereign states, PIL was replenished with very important concepts that are also known to modern jurists in this area of law. In the XVI century. French lawyer C. Dumoulin substantiated the concept of autonomy of will, according to which the parties in a transaction related to different legal orders themselves can choose the applicable law: the Dutch lawyers U. fvber, P. and I. Wut developed the so-called dutch territorial doctrine, on the basis of which, in particular, arose public policy clause concept. Bourgeois doctrines of the XNUMXth century. characterized by a variety of currents and directions, among which the most popular teachings of Savigny and Mancini. In the XX century. The development of MCHP was influenced by: the bipolarity of the world, divided into two opposing camps (socialist and capitalist); the liberation of the colonies and the emergence of a group of developing states; development of regional economic integration processes (in particular, the European Economic Community can be singled out as the most successful, although integration processes in one form or another take place); the emergence of numerous international legal sources of substantive and conflict of law regulation, and international intergovernmental organizations began to exert a great influence on this process: the UN Commission on International Trade Law (UNCITRAL), the Rome Institute for the Unification of Private Law (UNIDROIT), as well as international non-governmental organizations, for example . International Chamber of Commerce (ICC). During this period, the concepts of legal regulation of international commercial relations are developing very rapidly. (concepts of international trade, contract, economic and economic law). 5. INTERNATIONAL PRIVATE LAW IN RUSSIA, THE SOVIET DOCTRINE OF INTERNATIONAL PRIVATE LAW The development of scientific research in the field of PIL in pre-revolutionary Russia can be attributed by the second half of the XNUMXth century. The term "PIL" was introduced into wide scientific circulation by N.P. Ivanov, using it in his work "Foundations of Private International Jurisdiction". A well-known Russian scientist and international lawyer F.F. Martens made a great contribution to the development of the Russian science of PIL. The students of his school, A. A. Pilenko, B. E. Nolde, L. A. Shallanda, explored many issues of conflict of laws in their works. In the first decades of the XX century. Russian science of MChP was replenished with the works of M. I. Brun and V. A. Krasnokutsky, G. F. Shershenevich. The Soviet concept of PIL developed, on the one hand, on the basis of the continuity of the pre-revolutionary science of PIL, and on the other hand, it took shape taking into account the characteristics of the socialist economy. Thus, in the works of the founders of the Soviet science PIL I. S. Peretersky, V. M. Koretsky, the postulates of scientists - lawyers of the Russian Empire on the connection with civil law, the main conflict of laws principles of legal regulation, reservations about public policy, etc., were confirmed. In the meantime, the mechanisms of PIL were significantly adapted by them to the needs of the participation of the Soviet state in international economic relations. Certainly, under conditions of reorientation Russian economy on market relations MCHP has been transformed in a certain way. However, in its development, it continues to rely on the foundation laid by Soviet legal scholars: I. S. Peretersky, V. M. Koretsky, L. A. Lunts, and others. An outstanding school of civil law has developed in the Soviet Union. The works of M. M. Boguslavsky, A. S. Komarov, I. S. Zykin and others were widely known, and not only in the USSR. The studies of these authors, published back in the days of the USSR, are still used as educational literature . 6. SOURCES OF PRIVATE INTERNATIONAL LAW В PIL sources of legal regulation act: international treaties (conventions, treaties and agreements); national law (national legislation and other sources of national legal regulation); international customs. These three types of sources are traditionally singled out and recognized by domestic science studying PIL. In a number of countries, there are some features of legal regulation, therefore, in addition to the above sources, legal regulation of civil relations with a foreign element can be carried out by: the doctrine (i.e., science) of PIL, which includes the works of prominent lawyers, judicial or arbitration practice. These sources are used in the countries of the Anglo-American system of law. in Russia doctrine and practice cannot be sources of legal regulation. The decision on a dispute with a foreign element cannot be justified, canceled or changed on the basis of the use or non-use of these sources. An important regulatory role in PIL is played by the results of the rule-making process of international organizations (inter- and non-governmental). It is through the activities of international organizations that the so-called PIL unification process is carried out. Unification of PIL - this is the process of creating uniform substantive, conflict and procedural rules governing PIL relations, based on the convergence of the provisions of different national legal systems. In the course of unification, a certain compromise is reached between different approaches to legal regulation in several countries. The main result of such activities of international organizations are international treaties, although in order to approximate the provisions of the law of different states, different documents may be developed. Not all of them can be attributed to mandatory sources of law. The obligation to apply them is determined by the charter of the relevant organization or depends on the actions and behavior of the parties to civil relations with a foreign element. 7. INTERNATIONAL TREATIES International treaties (agreements, conventions), which are sources of PIL, can be classified in various ways. Let us give examples of classifications of various agreements regulating relations in PIL (see table). TableContract type - ExampleBilateral - Agreement between the Government of the Russian Federation and the Government of the State of Israel on cooperation and mutual assistance in customs matters (Moscow, March 11, 1997) Multilateral - CIS Convention on Legal Assistance and Legal Relations 1993 Universal - Vienna Convention on Contracts for the International Sale of 1980 Regional - Eurasian Patent Convention 1994 Containing material norms - 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Containing conflict rules - 1986 Hague Convention on the Law Applicable to International Sales Contracts. For investment matters - 1965 Washington Convention on the Settlement of Investment Disputes between States and Individuals of Other States. On the avoidance of double taxation - Agreement of 1995 between the Government of the Republic of Belarus and the Government of the Russian Federation on the avoidance of double taxation and the prevention of tax evasion with respect to taxes on income and property. For questions of marriage and family relations - New York Convention of 1956 on the Recovery of Alimony Abroad. For intellectual property - 1961 Rome Convention for the Protection of Performers. According to calculations - Geneva Convention No. 358 of 1930 establishing a uniform law on bills of exchange and promissory notes. For transportation - Warsaw Convention of 1929 for the unification of certain rules relating to international air transport. For civil procedure - 1954 Hague Convention on Civil Procedure. International Commercial Arbitration - European Convention of 1961 on foreign commercial arbitration. 8. NATIONAL LAW At the present stage of development of international private law, the norms of national law, as a rule, are codified. Codification - this is the systematization of normative legal acts by combining them into a single normative legal act containing a systematic presentation of the norms governing certain relations. The codification of PIL norms can act in two forms. First, it can be done by passing a law code or other special normative-legal act. In this way, for example, the MChP of Poland, China, Switzerland, Germany is developing. These countries have special PIL laws. Secondly, she can act in the shape of the so-called "industry codification", when PIL norms are included in normative legal acts that are the result of codification on other issues. Industry codification is available in the Russian Federation (Civil Code of the Russian Federation, section VI), as well as in the CIS countries, where civil codes contain a section "Private International Law". In addition to the provisions of the Civil Code, the rules of PIL are also contained in other regulatory acts of the Russian Federation: - Air Code of the Russian Federation of March 19.03.97, 60 No. XNUMX-FZ; - APC of the Russian Federation dated July 24.07.02, 95 No. XNUMX-FZ; - Land Code of the Russian Federation of October 25.10.01, 136 No. XNUMX-FZ; - Federal Law No. 09.07.99-FZ of July 160, XNUMX "On Foreign Investments in the Russian Federation"; - Law of the Russian Federation of July 07.07.93, 5338 No. 1-XNUMX "On International Commercial Arbitration"; - Law of the Russian Federation No. 15.08.96-FZ dated August 114, XNUMX "On the Procedure for Departure from the Russian Federation and Entry into the Russian Federation". PIL norms are contained in the normative legal acts of the former Soviet Union. They continue to be applied until the relevant legislative acts are adopted in the Russian Federation. 9. INTERNATIONAL CUSTOMS Custom - this is a rule that has developed over a fairly long period of time, is generally recognized, that is, it is constantly observed by an unlimited number of people and deviation from it is considered a violation of the law. In order for a rule to be recognized as a custom, it must meet at least three criteria. A custom is an objectively existing rule of law that must be applied regardless of the fact that it is not fixed anywhere. The custom is unwritten rule. One should not identify some well-known documents that fix the content of certain rules, sometimes considered as customs. As an example, Incoterms ("Rules for the Interpretation of Commercial Terms"), Uniform Rules for Collection (both documents are ICC developments), UNIDROIT Principles of International Commercial Contracts (document of an intergovernmental organization) can be mentioned. The attribution of all the rules enshrined in these documents to customs is highly controversial and depends on the circumstances of the case: the practice that has developed between specific parties, the subjective attitude of the court or arbitration to this issue. In the absence of a direct and unambiguous reference by the parties to a document court or Russian arbitration, guided by the provisions of domestic law, may accept the provisions of these documents as applicable. The Civil Code of the Russian Federation states that "if the agreement uses trade terms accepted in international circulation (for example, the basic terms of delivery of Incoterms FOB, CIF, DDU, etc.), in the absence of other indications in the agreement, it is considered that the parties have agreed on the application to their relations with the customs of business, denoted by the corresponding trade terms". According to the provisions of the Law of the Russian Federation "On International Commercial Arbitration", the decision must be made taking into account the trade customs applicable to this transaction. However, the application of Incoterms, UNIDROIT Principles and other documents can be challenged on many grounds. habits - these are the rules that have developed between specific parties. If the custom is an objective rule of law that exists independently of the parties, then the custom takes place only when certain circumstances of the relationship between specific parties indicate this. Habits can arise in a variety of ways and any terms can be used for them: the routine of business relations, the customs of business relations, the practice that the parties have established in their relationship, etc. Basically, there are two ways to establish habits: the parties deliberately make reference to some set of rules (for example, to the basic condition of Incoterms); the parties, by constantly repeating practice, behavior, actions or inaction, introduce one or another rule into their relations (for example, they constantly calculate the weight of the delivered goods in pounds, then agree on the delivery of the goods, but do not indicate what units of measurement are in question - it will be considered, that the parties have made it a rule to deal with pounds rather than kilograms). 10. THE CONCEPT, SIGNIFICANCE AND STRUCTURE OF THE CONFLICT REGULATION conflict rule - this is a rule that, without regulating the relationship of the parties on the merits, decides on the choice of applicable law. Conflict rules exist in national law, international treaties and may also exist in the form of international customs. For example, it can be considered a well-established custom to apply the procedural law of the country of the court, i.e., the place of consideration of a dispute with a foreign element. The conflict norm has a certain structure. It consists of volume and binding. The volume contains an indication of those relations with a foreign element to which the conflict rule applies. The binding contains a rule for finding a competent legal order, that is, it contains a criterion according to which preference should be given to the law of one state or another. For example, consider Art. 1200 of the Civil Code of the Russian Federation: - the recognition in the Russian Federation of an individual as missing and the declaration of an individual as dead (volume) are subject to Russian law (link). If the binding of a conflict rule refers in one direction, i.e. to domestic law, then such a conflict rule is called unilateral. If the binding of the conflict norm sends in different directions, then the latter is called bilateral, and her binding attachment formula. An example of a unilateral conflict of laws rule can be the above article of the Civil Code. As an example of a bilateral conflict rule with an attachment formula, consider paragraph 1 of Art. 38 of the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993: - the right of ownership to immovable property is determined by the legislation of the state party to the Convention, in whose territory the immovable property is located. 11. CLASSIFICATION OF CONFLICT RULES By volume, the following conflict rules can be distinguished: - on the legal and legal capacity of individuals and legal entities; - about the right of ownership; - about transactions; - about obligations from infliction of harm. Depending on how many criteria are contained in binding, distinguish the following conflict rules: - rigid or closed; - flexible or open. Rigid (closed) conflict rules operate with one criterion for finding the applicable law (location of property, place of conclusion of the transaction, nationality of the person, place of harm, etc.), and flexible or open - depending on all elements of the relationship of the parties in order to find the law, with which the relationship is most connected. Flexible (open) conflict rules have been used relatively recently. In the Russian Federation, paragraph 2 of Art. 1186 of the Civil Code of the Russian Federation, according to which if, in accordance with paragraph 1 of Art. 1186 of the Civil Code, it is impossible to determine the law to be applied, the law of the country with which the civil law relationship complicated by a foreign element is most closely connected is applied. The classification of conflict rules is also carried out according to the widely known, often and long-used types of rigid attachment formulas. 1. Personal law of an individual divided into the law of citizenship and the law of residence (domicile). It is used to regulate issues of legal capacity and legal capacity of individuals (Articles 1196 and 1197 of the Civil Code of the Russian Federation), in inheritance relations (Article 1224 of the Civil Code of the Russian Federation) and on other issues related to individuals. 2. Nationality of legal entity determines the status of the legal entity, the internal issues of the legal entity and the requirements for the name of the legal entity. In Russia, according to Art. 1202 of the Civil Code of the Russian Federation, it is determined by the place of creation (establishment) of a legal entity. 3. The law of the location of a thing determines the content of property rights, their implementation and protection (Article 1205 of the Civil Code of the Russian Federation). 4. The law of the place of the transaction. It is used to determine the competent legal order in relation to the form of the transaction (Article 1209 of the Civil Code of the Russian Federation). 5. Law of place of injury is used to choose the applicable law in obligations from causing harm (Article 1219 of the Civil Code of the Russian Federation). Special mention must be made autonomy of will - the principle of PIL, recognized in all countries, according to which the choice of the right of the party to a transaction with a foreign element is determined independently. Autonomy of will can be achieved if the relations of the parties relate to the transaction and at the same time they do not affect the interests of third parties. Some treaties do not provide for the right of the parties to autonomy of will. This, in particular, follows from Art. 1214 of the Civil Code of the Russian Federation (agreement on the establishment of a legal entity with foreign participation). 12. APPLICATION OF CONFLICT RULES Qualification. Legal concepts may be ambiguously disclosed in domestic law (court country) and foreign law. If legal concepts are not known to Russian law, then foreign law can be used in their qualification. Reciprocity. Foreign law does not apply if Russian law on similar issues and in similar situations is not applied in the relevant state. However, Russian courts apply foreign law without the condition of reciprocity. Retortions. If restrictions on the rights of Russian citizens and legal entities are established in a foreign state, the Government of the Russian Federation may establish similar retaliatory restrictions. Establishing the content of foreign law. In the Russian Federation, CIS countries, states of the continental system of law, foreign law is considered as a legal category and its content is established in accordance with the official interpretation, application practice and doctrine in the respective state. To do this, the court may request the Ministry of Justice of the Russian Federation, diplomatic institutions, hear experts and persons participating in the case. If it is not possible to establish the content, Russian law shall apply. References. This problem is divided into send back (or sending of the first degree) - and reference to the law of a third state (or sending of the second degree, or transmission). References do not arise if the applicable law, to which the conflict rule refers or which the parties have chosen, is not considered as a set of substantive and conflict of laws rules. References are not recognized in accordance with the Civil Code of the Russian Federation The return of foreign law in the Russian Federation may be accepted in cases of reference to Russian law, which determines the legal status of an individual. Imperative norms - rules that, at the discretion of the body considering the dispute, must necessarily be taken into account. The nature, nature, purpose and consequences of non-application of these norms are taken into account. Public policy clause. Foreign law cannot be applied because the consequences of its application would be clearly contrary to the foundations of the domestic legal order, i.e. public order. 13. CLASSIFICATION OF INDIVIDUALS FROM THE POINT OF VIEW OF PRIVATE INTERNATIONAL LAW groups of individuals, involved in civil law relations with a foreign element: - citizens of the Russian Federation; - Foreigners. Foreigners - all individuals who do not belong to the citizens of the Russian Federation, since it is this circumstance that basically determines the specifics of their legal status in PIL. Having carried out a further classification of individuals - participants in relations that go beyond one national jurisdiction, we can distinguish the following categories of persons in the "foreigners" group (see figure). The division of foreigners into citizens of foreign countries и stateless persons. This classification is primarily due to the legal status of individuals, their connection with any state and the peculiarities of conflict regulation. In addition, among foreigners, one can distinguish between residents (permanently or temporarily) and staying persons. The assignment of individuals in this case to one category or another is mainly due to the specifics of their legal status and the special rules of stay that they must comply with. Conflict-of-law and substantive regulation of the legal status of individuals can be determined by a variety of sources of PIL. 14. CONFLICT REGULATION OF THE LEGAL STATUS OF INDIVIDUALS. PERSONAL LAW OF A NATURAL PERSON Personal law of an individual - the conflict principle applied to the choice of law when regulating the legal status of an individual. The criterion of personal law "place of residence" - permanent residence. Of particular importance are the legal grounds for being on the territory of the Russian Federation (residence permit, etc.). Personal law applies to different categories of foreigners (see table). Recognition of an individual as incapable or partially incapacitated, missing and declaring an individual dead. According to the Civil Code of the Russian Federation, these procedures are subject to Russian law. Establishment of guardianship and guardianship according to the Civil Code of the Russian Federation is carried out according to the personal law of the person. The obligation of a guardian (trustee) to accept guardianship (curatorship) is determined by the personal law of the person appointed by the guardian (trustee). The relationship between a guardian (custodian) and a person under guardianship (trusteeship) shall be determined by the law of the country whose institution appointed the guardian (trustee). However, when a person under guardianship (guardianship) has a place of residence in the Russian Federation, Russian law is applied if it is more favorable for this person. The rights of an individual to a name, its use and protection are regulated in accordance with the Civil Code of the Russian Federation by personal law, unless otherwise provided by the Civil Code or other laws. The right of an individual to engage in entrepreneurial activities as an individual entrepreneur is chosen depending on the closest connection of entrepreneurial activity with any state. Based on the Civil Code of the Russian Federation, the competent legal order is defined as the law of the state where an individual is registered as an individual entrepreneur. If this rule cannot be applied due to the lack of mandatory registration, then the law of the country of the main place of business shall apply. 15. LEGAL REGIMES IN PRIVATE INTERNATIONAL LAW National Treatment means that the same rules apply to foreigners as to domestic citizens, and are established, as a rule, by international treaties (for example, under the Paris Convention of 1883 for the protection of industrial property rights) and sources of national law (for example, under the constitution) . Special mode provides for special rules for foreigners and is established by national law. most favored nation, in accordance with which the persons of a certain state are granted the same benefits and advantages as persons of any other state. Therefore, otherwise it is called comparative. The most favored nation treatment is established by international treaties, for example. relevant provisions are contained in bilateral treaties on legal assistance, trade and economic relations, and on the promotion and protection of investments. There may be other modes for example, preferential, providing for the provision of benefits and benefits on a unilateral basis. Mainly for foreigners in the Russian Federation national mode. It is enshrined in the Constitution of the Russian Federation, the Civil Code of the Russian Federation, the Federal Law "On the legal status of foreign citizens in the Russian Federation." Restrictions that apply to all foreigners, often associated with a ban on holding certain positions. Foreigners do not have the right to be in the state or municipal service, hold positions as part of the crew of a vessel flying the State Flag of the Russian Federation, in accordance with the restrictions provided for by the Code of Merchant Shipping of the Russian Federation, be a member of the crew of a warship of the Russian Federation or another vessel operated for non-commercial purposes, and as well as an aircraft of state or experimental aviation, to be employed at facilities and organizations whose activities are related to ensuring the security of the Russian Federation. Restrictions applicable to certain categories of foreigners, usually depend on whether the foreigner is a resident, a temporary resident or a temporary resident. Foreigners permanently residing in the Russian Federation - this is a person who has received a residence permit (a document issued to confirm the right to permanent residence in the Russian Federation, as well as the right to freely leave the Russian Federation and enter the Russian Federation. A residence permit issued to a stateless person is also an identity document) . Foreigners temporarily residing in the Russian Federation - these are persons who have received a temporary residence permit (confirmation of the right to temporarily reside in the Russian Federation before obtaining a residence permit is issued in the form of a mark in an identity document, or in the form of a document of the established form, issued in the Russian Federation to a stateless person who does not have a document identity card). Foreigners temporarily staying in the Russian Federation - these are persons who arrived in the Russian Federation on the basis of a visa or in a manner that does not require a visa. 16. RULES FOR ENTRY AND DEPARTURE OF FOREIGNERS TO THE RUSSIAN FEDERATION The main sources of legal regulation of the entry of foreigners into the Russian Federation and exit from the Russian Federation - The Law "On the Legal Status of Foreign Citizens in the Russian Federation" and the Federal Law "On the Procedure for Departure from the Russian Federation and Entry into the Russian Federation". Entry and exit of foreigners is carried out on valid documents proving their identity, in the presence of visas of the Russian Federation. A different procedure may be provided for by international treaties and national legislation. Not only entry, but also exit is carried out with a visa. Entry into the Russian Federation is not allowed if: when applying for a Russian visa, foreigners could not confirm the availability of funds for living on the territory of the Russian Federation; at the checkpoint across the State Border, foreigners have violated the rules for crossing the State Border of the Russian Federation; foreigners knowingly provided false information about themselves or about the purpose of their stay; it is necessary in order to ensure the security of the state; during the period of their previous stay in the Russian Federation, foreigners were convicted in accordance with the legislation of the Russian Federation for committing a grave or especially grave crime, or during the period of their previous stay they were forcibly expelled from the Russian Federation, within five years after serving their sentence for a crime committed or within one year from the date of forced expulsion; foreigners did not submit the documents required to obtain a Russian visa; foreigners apply for a Russian visa for a period of more than three months and have not submitted a certificate confirming their absence of HIV infection. Departure from the Russian Federation for foreigners may be restricted if: foreigners in accordance with the legislation of the Russian Federation are detained on suspicion of committing a crime; brought in as defendants or convicted of committing a crime on the territory of the Russian Federation; evade the fulfillment of obligations imposed on them by the court, or have not fulfilled their obligations under the legislation of the Russian Federation to pay taxes. Deportation - forced expulsion of a foreign citizen from the Russian Federation in case of loss or termination of legal grounds for further stay or residence in the Russian Federation. If the period of residence or temporary stay of a foreign citizen in the Russian Federation is reduced, this foreign citizen is obliged to leave the Russian Federation within three days. If a temporary residence permit or a residence permit issued to a foreign citizen is cancelled, this foreign citizen is obliged to leave the Russian Federation within 15 days. If a foreigner does not leave within these terms voluntarily, then he is subject to forced expulsion. The deportation of foreigners is carried out at his expense, and in case of their absence - at the expense of the body that invited him, the diplomatic mission or consular office of a foreign state whose nationality the foreigner has, the international organization or its representative office, as well as at the expense of the funds of the person who invited the deported foreigner. 17. RULES OF STAY AND TRANSIT OF FOREIGNERS IN THE RUSSIAN FEDERATION The whole set of reasons for the stay of foreigners in the Russian Federation is determined by: stay for the purpose of transit travel; temporary residence, temporary and permanent residence. Transit procedure foreign citizens are regulated mainly by the provisions of the Federal Law "On the Procedure for Departure from the Russian Federation and Entry into the Russian Federation", as well as the norms of the Law "On the Legal Status of Foreign Citizens in the Russian Federation". Transit travel is carried out in the presence of a Russian transit visa, as well as a visa to enter a state adjacent to the Russian Federation along the route, or a visa of the state of destination and travel tickets valid for leaving the Russian Federation or a confirmed guarantee of their purchase at a transfer point on the territory of the Russian Federation. The foreigner must follow in transit, as a rule, without stopping. During transit, he can make an emergency stop, which means staying more than 24 hours within the boundaries of the settlement due to the onset of emergency circumstances (natural disaster, etc.). It can take place if you have a special visa with the right to stop on the territory of the Russian Federation. Transit travel through the territory of the Russian Federation without a visa is allowed if foreigners: make a direct flight by air through the territory of the Russian Federation or follow an international airline with a transfer at an airport in the territory of the Russian Federation and have duly executed documents for the right to enter the state of destination, as well as an air ticket with a confirmed date of departure from the transfer airport in the territory of the Russian Federation within 24 hours from the moment of arrival, except in cases of forced stop; reside on the territory of a state with which the Russian Federation has an appropriate international treaty. The stay of foreigners staying and residing in the Russian Federation is determined by strict administrative rules. Foreigners who entered the Russian Federation are required to register within three working days from the date of arrival in the Russian Federation. The territorial body of the federal executive body in charge of internal affairs registers foreign citizens who have entered the Russian Federation, with the exception of persons with diplomatic privileges and immunities, and members of their families (they are registered by the Ministry of Foreign Affairs), as well as foreigners living in hotels (they registered by hotel administrations). Foreigners staying in the Russian Federation for less than three working days, as well as certain categories of persons (heads of foreign states, etc.), are not subject to registration. Foreigners at the entrance to the Russian Federation fill out migration card, which, together with an identity document of a foreign citizen, is presented to an official of the border control authority at the checkpoint across the State Border of the Russian Federation. When leaving the Russian Federation, a foreign citizen is obliged to hand over the migration card to an official of the border control authority at the checkpoint across the State Border of the Russian Federation. An official of the border control body puts in the migration card a mark on the entry of a foreign citizen into the Russian Federation and a mark on his departure from the Russian Federation. 18. CLASSIFICATION OF LEGAL ENTITIES FROM THE POINT OF VIEW OF PRIVATE INTERNATIONAL LAW Artificial formations acting as independent subjects of law are called legal ("moral", "fictitious") persons. They are created for fast and efficient concentration of capital. A party in PIL relations can be various persons, both being and not being legal entities by their legal nature. Basically, the classification of legal entities participating in international private law relations is carried out depending on whether they are domestic or foreign. Thus, allocate: - domestic legal entities; - foreign legal entities. It is also possible to single out a number of specific legal entities, depending on the combination of certain domestic and foreign elements in them. 1. Commercial organizations with foreign investments. They are created under domestic law and are not foreign, although they are foreign in terms of capital structure, nationality of the founders and some other elements. 2. Companies created by Russian business entities abroad. They are essentially foreign, but due to the Russian nationality of the founders, they are subject to certain provisions of Russian law. Offshore companies are one of the varieties of such companies. They are created in zones of preferential taxation, and their procedure for establishing and operating has a number of advantages. 3. Transnational corporations. A rather conditional term, since such entities are a conglomeration of several legal entities of different nationalities. 19. TRANSNATIONAL CORPORATIONS Transnational Corporation (TNC) - this is a set of legal entities of different nationality, acting in the common interest and interconnected by holding each other's shares, agreements on joint activities, management control or in other ways. TNCs (McDonald's, Nestle, Ford, Mercedes, BMW, etc.) are always financially powerful integrators of world economic ties. They divide markets, monopolize various activities, are the largest employers and investors, determine the economic policies of countries and regions, and even tend to interfere in the political affairs of sovereign states. The process of creating TNCs can occur both horizontally and vertically. In the first case, a TNC arises by combining the activities of several companies, for example, the creation of holding associations, financial and industrial groups, or the conclusion of an agreement on joint activities. In the second case, the process of creating a TNC looks like the establishment by the parent company of subsidiaries in different countries of the world. The peculiarity of the legal status of TNCs is determined by a number of factors. one. The legal design and economic content of TNCs do not coincide. Participants act in the common interest and are guided by common decisions emanating from the center, but at the same time they are separate legal entities with limited liability. 2. Members of TNCs continue to be independent legal entities. The activities of TNCs as such are practically not regulated by anything. There are some documents of international organizations in which the principles of conduct of TNCs are enshrined: the UN TNC Universal Code of Conduct, the Principles of Multinational Enterprises of the Organization for Economic Cooperation and Development, the Principles of Conduct of TNCs in the field of social and labor relations of the International Labor Organization, the codes of conduct of TNCs in the field of restrictive business practices of UNIDO and UNCTAD. Some international treaties regulate the activities of TNCs. The process of creation between the enterprises of the CIS member states of such a variety of transnational associations as financial and industrial group (FIG), which is understood as a group of enterprises, institutions, organizations, financial institutions, created on the basis of combining the capitals of its participants in order to conduct joint production and investment activities, establish and develop industrial and economic relations, generate profits, develop and implement socio-economically significant programs and projects. The creation and operation of transnational FIGs are regulated by CIS treaties on TNCs. The procedure for the creation and registration of FIGs in the Russian Federation is determined by the Federal Law "On FIGs". If a transnational FIG is created on the basis of an intergovernmental agreement, it is assigned the status of an interstate (international) FIG. 20. PERSONAL LAW OF A LEGAL ENTITY Legal entities participating in relations governed by international private law, like natural persons, always have the nationality of a state, due to a closer connection with it. Binding "personal law" allows you to determine the nationality of legal entities and to separate domestic legal entities from foreign ones. In the Netherlands, Poland, Russia, Belarus, the nationality of a legal entity is determined at the place of establishment in Germany, France, Belgium, Spain - at the place of residence, which refers to the location of the headquarters (or administrative center). These bindings allow you to select the applicable law that governs the internal affairs of the legal entity. The list of issues determined by the applicable law on the basis of the link "personal law" is contained in Art. 1202 of the Civil Code of the Russian Federation. Its provisions provide that on the basis of the personal law of a legal entity, the following are determined: status of the organization as a legal entity; organizational and legal form; naming requirements; issues of creation, reorganization and liquidation, including issues of succession; content of legal capacity; the procedure for acquiring civil rights and assuming civil obligations, however, according to Russian law, the law at the place of establishment does not apply when a legal entity refers to the limitation of the powers of its body or representative to make a transaction, unknown to the law of the country in which the body or representative of the legal entity made the transaction , unless it is proven that the other party to the transaction knew or should have known about the specified restriction; internal relations, including relations of a legal entity with its participants; ability to meet its obligations. The nationality of legal entities can also be determined by other links. With regard to legal entities, various issues arise: admission to the implementation of certain types of activities, taxation, protection of intellectual property rights, conclusion of foreign economic transactions, participation in investment relations. The legal regulation of these problems is largely determined by classifying a person as domestic or foreign. For example, in order to apply a certain regime of investment activity to a legal entity-investor, to provide guarantees and benefits, it is very important to resolve the issue of its nationality. For these purposes, it can be used control criterion, when the nationality is determined by the nationality of the founders. Another example. Tax, customs, banking, currency legislation and legislation on foreign economic activity use the terms "resident/non-resident". The assignment of persons to one of these categories is carried out depending on where they are created and reside. 21. LEGAL STATUS OF FOREIGN LEGAL ENTITIES IN THE RUSSIAN FEDERATION Foreign legal entities can carry out a variety of activities on the territory of the Russian Federation: enter into transactions on the territory of Russia with Russian persons in respect of property located in Russia; engage in business activities; open representative offices in Russia and establish branches; create, with or without the participation of Russian persons, new formations in accordance with the organizational and legal forms provided for by Russian law; engage in investment activities. In determining the issues of the legal status of foreign legal entities, Russian law proceeds from the principle national regime. It is enshrined in many sources of legal regulation: paragraph 1 of Art. 2 of the Civil Code of the Russian Federation, art. 254 APC RF, art. 4 of the Federal Law of July 09.07.99, 160 No. XNUMX-FZ "On Foreign Investments in the Russian Federation", as well as in other regulatory legal acts. Thus, the basis of the legal status of foreign legal entities in the Russian Federation is equalization of their rights with domestic persons. At the same time, one should not forget about the application to foreign persons special treatment, with some restrictions. It operates in the Russian Federation in relation to both foreign legal entities and individuals. It is rather difficult to list all the restrictions. One way or another, in all areas of legal regulation, one can find features related to the belonging of a legal entity to a foreign jurisdiction. Let's give some examples. In accordance with paragraph 3 of Art. 19 of the Law of the Russian Federation of February 20.02.92, 2383 No. 6-I "On Commodity Exchanges and Exchange Trading", foreign legal entities and individuals who are not members of exchanges can participate in exchange trading exclusively through exchange intermediaries. According to Art. 06.05.99 of the Federal Law of 97 No. XNUMX-FZ "On tenders for placing orders for the supply of goods, performance of work, provision of services for state needs" foreign suppliers (executors) of goods (works, services) can take part in the tender if the production of goods ( works, services) for state needs in the Russian Federation is absent or economically impractical. The special regime for foreign legal entities does not necessarily provide for restrictions on their rights in comparison with domestic entities and prohibitions on carrying out any activity. In accordance with this regime, special rules and requirements may be established for foreign legal entities, depending on the nationality of these entities. In accordance with the order of the Ministry of Finance of the Russian Federation of July 29.07.98, 34 No. XNUMXn "On Approval of the Regulations on Accounting and Accounting in the Russian Federation", branches and representative offices of foreign legal entities located in the territory of the Russian Federation can keep accounting records based on the rules established in the country of location a foreign legal entity, if the latter do not contradict the International Financial Reporting Standards developed by the International Financial Reporting Standards Committee. 22. REPRESENTATIONS OF FOREIGN LEGAL ENTITIES IN THE RUSSIAN FEDERATION Issues of taxation of foreign legal entities are determined by a special regime. Legal regulation in this area is closely related to the concept of "representation" of a foreign legal entity. These issues are regulated by the Tax Code of the Russian Federation. According to Art. 246 of the Tax Code of the Russian Federation, income taxpayers are foreign legal entities operating in the Russian Federation through permanent representative offices and receiving income from sources in the Russian Federation. Do not confuse a permanent establishment of a foreign legal entity for tax purposes with representative offices of foreign firms and organizations subject to accreditation at the State Registration Chamber under the Ministry of Justice. Permanent representative office of a foreign legal entity in the Russian Federation - a branch, representative office, department, bureau, office, agency, any other separate subdivision or other place of activity of this legal entity, through which it regularly carries out entrepreneurial activities in the territory of the Russian Federation. This activity may be related to: - use of subsoil and other natural resources; - carrying out the construction, installation, installation, assembly, adjustment, maintenance and operation of equipment, including slot machines, as provided for by the contracts; - sale of goods from warehouses located on the territory of the Russian Federation and owned by this legal entity or leased by it; - performance of other works, provision of services, conduct of other activities, e.g. of a preparatory and auxiliary nature in the absence of signs of a permanent establishment (in particular, the use of facilities solely for the purpose of storage, demonstration and delivery of goods). Some income from sources in the Russian Federation of foreign legal entities that do not operate through a permanent establishment in the Russian Federation may be taxed in the Russian Federation (Article 309 of the Tax Code of the Russian Federation): - from the use in the Russian Federation of rights to objects of intellectual property; - from the sale of real estate located on the territory of the Russian Federation; - from leasing or subleasing property; - from international transport. In conclusion, we note that when determining the tax base of a foreign legal entity, mechanisms for the elimination of double taxation in accordance with international treaties are taken into account. 23. STATES AND INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS According to Art. 1204 of the Civil Code of the Russian Federation on civil law relations with a foreign element with the participation of states, the PIL rules are applied on a general basis, unless otherwise provided by law. However, an important feature of PIL relations with the participation of states and international intergovernmental organizations is that the parties have different legal status. They are not equal in advance. The legal regulation of these relations is extremely complicated by the fact that states and international intergovernmental organizations have immunities. Under the immunities of states and intergovernmental organizations in PIL understand: the impossibility of bringing claims against them in the courts of other states, i.e., their lack of jurisdiction in the courts of national jurisdiction; the impossibility of foreclosing their property in order to secure a claim or enforce a decision. Among sources of law that govern immunities The subjects we are considering are: - international multilateral treaties (eg, the 1947 Convention on the Privileges and Immunities of the Specialized Agencies); - agreements on headquarters, which are concluded on a bilateral basis by an international intergovernmental organization and its host state (for example, the 1996 Treaty between the Republic of Belarus and the CIS Economic Court on the conditions for the stay of the CIS Economic Court on the territory of the Republic of Belarus); - international customs (for example, a custom has developed that provides for the expediency of providing an international organization with alternative means of resolving disputes with individuals); - national law (for example, the relevant provisions are in the Code of Civil Procedure and the Arbitration Procedure Code of the Russian Federation). The UN International Law Commission has prepared a document "Draft Articles on the Jurisdictional Immunities of States and Their Property", which should serve as the basis for concluding an international treaty on these issues. The immunities of states and international intergovernmental organizations may be lifted on a voluntary basis or limited on the basis of international or national law. Voluntarily these subjects can waive immunities in various ways, in particular: by making an appropriate statement; admitting the claim; presenting objections on the merits of the case in court; by entering into an agreement on the consideration of the case in court or international commercial arbitration. The different approaches of the states of the world in relation to immunities can be defined by two concepts: - absolute immunity, according to which immunities cannot be limited by force, but can be lifted voluntarily with the consent of the state concerned; - limited or functional immunity, under which, under certain conditions, immunities can be lifted by force. 24. CONCEPTS OF ABSOLUTE AND LIMITED STATE IMMUNITY The concept of absolute state immunity recognized in the Russian Federation by a number of regulatory legal acts. In particular, the Arbitration Procedure Code of the Russian Federation provides that a foreign state acting as a holder of power has judicial immunity in relation to a claim brought against it in an arbitration court in the Russian Federation, its involvement in the case as a third party, the seizure of property belonging to to a foreign state and located on the territory of the Russian Federation, and the adoption of measures in relation to it by the court to secure the claim and property interests. Foreclosure on this property in the procedure for the enforcement of a judicial act of an arbitration court allowed only with the consent of the competent authorities of the relevant state, unless otherwise provided by an international treaty of the Russian Federation or Federal Law. Waiver of judicial immunity must be made in the manner prescribed by the law of a foreign state or the rules of an international organization. The concept of absolute immunity was provided for in the 1964 Code of Civil Procedure and is also contained in the new Code of Civil Procedure. Thus, the possibility of filing a claim against a foreign state in Russian courts and imposing a penalty on its property is determined by the consent of this state, i.e., by the voluntary waiver of judicial immunity in any form before or after the dispute arises. The concept of limited or functional immunity applies when the state of the place of dispute adhering to it according to the norms of international law (for example, the 1972 European Convention on the Immunity of States refers to the limitation of the immunities of states) or according to national legislation - the relevant laws are adopted in the states of Western Europe, the USA, Australia. The concept of absolute immunity continues to be applied in the Russian Federation, the Republic of Belarus, some other CIS countries, as well as in China and Mongolia. This concept proceeds from the fact that immunities are removed from the state participating in a commercial transaction. The commercial nature of a transaction can be established by its nature and purpose. Thus, within the framework of the concept of limited immunity, there are: public law transactions; private law transactions. For example, the purchase and sale of an object to solve the social problems of the population of the state is a public law transaction, and the sale and purchase of an object for the purpose of obtaining commercial profit is a private law transaction. Of course, the line between both types of transactions is very thin and is decided by the body that considers the dispute in each specific case, taking into account all the circumstances. In addition, sources of law based on the concept of limited immunities provide for the possibility of waiving immunities in certain cases, for example, when the dispute, according to any criterion, is related to the country of the court (the property is located in the territory of the court State, the performance of obligations under the contract took place in territory of this state, etc.). 25. LEGAL STATUS AND IMMUNITIES OF INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS The legal capacity of international intergovernmental organizations is determined by their charters, headquarters agreements and other international treaties. They act in civil law relations as quasi-legal entities. Basically, all the mentioned sources of international legal regulation indicate that international intergovernmental organizations are endowed with the rights of a legal entity. The legal capacity of an international intergovernmental organization is functional nature, i.e., it is determined by the tasks and goals of its creation, and cannot go beyond the scope of this legal capacity. It is widely recognized that an organization can: - acquire movable and immovable property; - to make deals; - act as a party to obligations from causing harm; - act as a plaintiff. defendant international intergovernmental organizations in the absolute majority of cases do not act. Their immunities are regulated primarily by international legal sources. So in paragraph 2. Art. 251 of the Arbitration Procedure Code of the Russian Federation, the following is established: - judicial immunity of international organizations is determined by an international treaty of the Russian Federation and the Federal Law. Of particular note is the difference between State immunities and immunities of international intergovernmental organizations. The immunities of the latter are more limited, that is, they are more difficult and less likely to be removed. The question of the principles for lifting the immunities of international intergovernmental organizations was studied by a working group of the UN International Law Commission. As a result, the document "Report on the principles of activity and immunities of international organizations" was adopted. There are currently no plans to conclude an international treaty on its basis. However, some of the conclusions contained in this document are already recognized by jurisprudence and arbitration, as well as enshrined in the rules of some headquarters agreements. It can even be noted that some international customs on immunities of intergovernmental organizations. Among the most interesting and important is the rule according to which the immunities of organizations from the jurisdiction of national courts are recognized, but it is considered extremely unfair not to present any means of resolving the conflict at all, for example. arbitration, good offices, mediation and other alternative dispute resolution methods. From the mid 1980s. The United States introduces appropriate arbitration provisions into all headquarters agreements with international intergovernmental organizations based in its territory. 26. CONFLICT ISSUES OF PROPERTY RIGHTS In the conflict law of the Russian Federation, the rules on the right of ownership and other property rights are concentrated in Ch. 68 of the Civil Code of the Russian Federation "Law applicable to property and personal non-property relations". The law of the location of a thing - this is the basic rule for finding the applicable law in relation to property rights. It is used to decide whether a thing can be the subject of rights in rem; determining the scope of property rights; protection of property rights; classifying property as immovable or movable (Article 1205 of the Civil Code of the Russian Federation). On other issues of ownership and other rights in rem, the conflict principle "the law of the location of the thing" is either somewhat specified, or other rules are applied instead. Emergence, transfer or termination of rights in rem are determined by the conflict principle "the law of the country where the property was located at the time when an action or other circumstance took place that served as the basis for the emergence, transfer or termination of ownership and other property rights" (clause 1 of article 1206 of the Civil Code of the Russian Federation). In international commercial relations, very often the property acquired under a transaction must go from one country to another, and the moment of its transfer by one party to another is rather extended in time. The conflict regulation of such situations proceeds from the application of the general binding "the law of the location of the thing" with some clarifications. Emergence and termination of the right of ownership and other property rights under a transaction concluded in respect of movable property in transit, are determined by the law of the country from which this property was sent (clause 2 of article 1206 of the Civil Code of the Russian Federation). Similar rules for determining the applicable law in relation to the right of ownership and other property rights are contained in international treaties in which the Russian Federation participates. As an example, let's take Art. 38 of the CIS Convention on Legal Assistance and Legal Relations between the CIS Member States. 27. PROBLEMS OF INHERITANCE IN PRIVATE INTERNATIONAL LAW In hereditary relations with a foreign element, three groups of issues can be distinguished depending on the peculiarities of their conflict-of-law regulation. 1. Inheritance by law. This situation involves questions about the circle of heirs and the order of their calling. The general binding for their solution in the Russian Federation is the law of the last place of residence of the testator. 2. Inheritance by will. In this case, the most important issues are the establishment of the testator's testamentary capacity and compliance with the requirements for the form and content of the will. According to Russian conflict of laws, the ability of a person to draw up and revoke a will, including in respect of real estate, as well as the form of such a will or an act of its cancellation are determined by the law of the country where the testator had his place of residence at the time such a will or act was drawn up. However, a will or its cancellation cannot be declared invalid due to non-observance of the form, if it satisfies the requirements of the law of the place where the will was drawn up or the act of its cancellation, or the requirements of Russian law. 3. Inheritance of real estate. In the Russian Federation, the inheritance of real estate is determined by the law of the country where it is located, and the inheritance of real estate, which is entered in the state register in the Russian Federation, is determined by Russian law. In hereditary relations with a foreign element, a rather difficult situation may arise. escheat property. It takes place when there are no heirs either by law or by will, or none of the heirs has the right to inherit, or all of them have renounced the inheritance. Escheat property becomes the property of the state. Difficult questions may arise in PIL as to which state such property is transferred to. After all, if relations are complicated by a foreign element and are associated with different legal orders, then several states can challenge it, for example. the state of the last place of residence and the state of the location of the property. National law, as a rule, does not contain conflict of law rules on these issues and regulates only the transfer of escheated property to the court state. Agreements on legal assistance somewhat complete the picture of legal regulation. In particular, the clash of interests of several participating States in relation to escheated property is regulated by Art. 46 of the Convention on Legal Assistance and Legal Relations of the CIS Member States of 1993 - movable property passes to the state party of which the testator was a citizen at the time of death, and immovable property remains with the state party on whose territory it is located. In practice, inheritance relations with a foreign element are not limited to the choice of applicable law. Inheritance involves some formalities associated with the actions of certain bodies, the implementation of a number of procedures and the submission of certain documents. Very important functions in the field of succession are carried out by diplomatic missions and consular offices. 28. FEATURES OF LEGAL REGULATION OF FOREIGN INVESTMENTS. INVESTMENT MODE International legal sources of regulation: 1965 Washington Convention on the Settlement of Investment Disputes between States and Individuals or Legal Entities of Other States; 1985 Seoul Convention Establishing the Multilateral Investment Guarantee Agency; CIS Agreement of 1993 on cooperation in the field of investment activity; 1992 CIS Agreement on Mutual Recognition of Rights and Regulation of Property Relations; 1997 CIS Convention on the Protection of Investor Rights; bilateral agreements on the promotion and protection of investments. National legal sources of regulation: Federal Law "On Foreign Investments in the Russian Federation", "On Investment Activities in the Russian Federation Carried out in the Form of Capital Investments", "On Production Sharing Agreements". The national legal regulation of foreign investment in each state has its own characteristics. The general rule is national mode. However, derogations are always provided for in order to ensure the interests of the national economy (in particular, for the development of certain industries, agriculture, etc.), national security, public health, and for other reasons related to the interests of a particular state. In addition, a distinctive feature of the investment regime in the CIS member states, as well as in the states that were previously part of the socialist bloc, is the presence of certain organizational forms of investment and the provision of special investment guarantees when a certain amount of investment is reached. These states are particularly interested in attracting investment in the national economy, therefore, their national laws, as a rule, provide for: - the possibility of creating commercial organizations with foreign investment; - a guarantee against nationalization, requisition of investments and a guarantee of compensation in case of implementation of these measures in exceptional cases; - guarantee of free use of income from investment activities and their transfer to other countries; - a guarantee against arbitrary interference by state bodies of the country - the place of investment in the activities of a foreign investor. The content of the investment regime, list of benefits and guarantees provided to foreign investors, in each state have their own characteristics. Thus, the amount of investment that gives the right to benefits, the nature of these benefits, the procedure for creating organizational and legal forms with foreign investment can be very different. However international standards for foreign investment, fixed by international bilateral, multilateral, regional and universal treaties, as well as proclaimed in a number of documents of international organizations, have a significant unifying effect on national legal regulation in this area. 29. CONCEPT AND CLASSIFICATION OF FOREIGN INVESTMENTS According to Art. 2 of the Law "On Foreign Investments in the Russian Federation" foreign investment are investments 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, if such objects of civil rights are not withdrawn from circulation or are not limited in circulation in the Russian Federation in accordance with the Federal Law, including money, securities ( in foreign currency and the currency of the Russian Federation), other property, property rights having a monetary value of exclusive rights to the results of intellectual activity (intellectual property), as well as services and information. Foreign investments are usually divided into direct and portfolio. Direct investments: the acquisition by a foreign investor of at least 10% of a share, shares (contribution) in the authorized (share) capital of a commercial organization established or newly established in the territory of the Russian Federation in the form of a business partnership or company in accordance with the civil legislation of the Russian Federation; capital investment in fixed assets of a branch of a foreign legal entity established in the territory of the Russian Federation; implementation on the territory of the Russian Federation by a foreign investor as a lessor of financial lease (leasing) of equipment specified in sections XVI and XVII of the Commodity Nomenclature for Foreign Economic Activity of the CIS (TN VED CIS), with a customs value of at least 1 million rubles. (machinery, equipment and mechanisms, electrical equipment, parts thereof, sound recording and reproducing apparatus, apparatus for recording and reproducing television images and sound, their parts and accessories, means of land transport, aircraft, watercraft and devices and equipment related to transport) . The legislation of the Russian Federation also highlights some special direct investments, which are called "priority investment project". This refers to investments with a total volume of at least 1 billion rubles, or an investment project in which the minimum share (contribution) of foreign investors in the authorized capital of a commercial organization with foreign investments is at least 100 million rubles. Other investments are sometimes referred to as portfolio. This concept has no significant significance for the legal regulation of foreign investment. This term is mainly used in the field of currency control. The term "direct investment" is very important from a legal point of view for the regulation of foreign investment, since it is direct investment that entitles a foreign investor to expect to receive basic benefits and guarantees under national law. 30. CONCEPT AND CLASSIFICATION OF FOREIGN INVESTORS Foreign investors - individuals and legal entities having a foreign nationality and a closer connection with this state. In accordance with the Law "On Foreign Investments in the Russian Federation", foreign investors include: foreign legal entities, as well as organizations that are not legal entities established under the laws of foreign states; foreign citizens, stateless persons who permanently reside outside the Russian Federation; international organizations that are entitled, in accordance with an international treaty of the Russian Federation, to invest in the territory of the Russian Federation; foreign states. International legal sources of regulation determine foreign investors depending on the goals they are striving for. Bilateral agreements on the promotion and mutual protection of investments are concluded to ensure the investment rights of persons having the nationality of both states. Foreign investors under these agreements are defined as persons having the nationality of the member states. Ashgabat Agreement of the CIS Heads of State of December 24, 1993 concluded for the purpose of regional cooperation in the field of investment activities and applies to investors of the participating states. According to Art. 2 of this Agreement, they are understood as: legal entities established in accordance with the legislation of the State Party; individuals, citizens of the participating states and citizens of other states permanently residing on their territory, as well as stateless persons; the states - parties to the Agreement and the state and administrative-territorial formations located within their territories represented by legal entities and individuals authorized by them in accordance with the legislation of the participating states. Investor Protection Convention concluded in the course of regional cooperation, but its scope is wider. By concluding the Convention on the Protection of the Rights of Investors, the participating states set themselves the task of creating a common investment space on their territory. The norms of the Convention come into force if the subjects of legal relations of two or more states are involved in the investment process, and it does not matter whether these states are parties to the convention or not. Seoul Convention on the Establishment of the Multilateral Investment Guarantee Agency concluded for the purpose of insuring investments from member countries in other developing member countries. Defines investors as any individual and any legal entity, provided that the individual is a citizen of a member country that is not the host country of the investment, and the legal entity is formed and its main establishments are located in the territory of the member country or the majority of its capital is owned by the member country or to member countries or their nationals, provided that such member is not the host country in any of the above cases and the legal entity is operating on a commercial basis. 31. LEGAL REGULATION OF INVESTMENT IN THE CIS. BISHKEK AND ASHGABAT AGREEMENTS The development of legal regulation on investment issues within the CIS is as follows. First, the CIS member states concluded 1992 CIS Agreement on Mutual Recognition of Rights and Regulation of Property Relations (Bishkek Agreement). It was concluded in order to create legal norms that prevent mutual claims and guarantee the protection of the property rights of the states - the former republics of the USSR, as well as individuals and legal entities of these states. Some provisions of the Bishkek Agreement are devoted to the problems of investment activity. In this regard, Art. 16: - the participating states recognize that their legal entities and individuals making investments are considered in each other's territory as foreign investors, their activities in the territory of each participating state are carried out in accordance with its legislation on foreign investments and international agreements. By the decision of the Council of Heads of State of the CIS, adopted in Ashgabat on December 24, 1993, art. 16 of the Bishkek Agreement was cancelled. Thus, the investors of the participating States should not be considered as foreign. They should be subject to national treatment. Repeal of Art. 16 was caused by imprisonment CIS Agreements of 1993 on cooperation in the field of investment activity (Ashgabat agreement). It was concluded primarily to develop and implement an investment policy in relation to their economic entities and to ensure mutual protection of their interests. According to Art. 7 of this Agreement, investors of each participating state in other states participating in this Agreement are provided with full and unconditional legal protection. The investments of these persons shall not be subject to nationalization and may not be requisitioned, except in exceptional cases with the payment of prompt, adequate and effective compensation. Article 8 of the Agreement provides for the right of investors of the participating states to unhindered transfer to the participating states, as well as to other states, of profits and other amounts received in connection with the investments made. Correlation between the provisions of the Bishkek and Ashgabat agreements became the subject of consideration by the CIS Economic Court. In its decision dated January 21.01.97, 1 No. С-12/96-1/С-18/96-6, the Economic Court interpreted Art. 16 of the Ashgabat Agreement and art. XNUMX of the Bishkek Agreement. Confirming the right of investors from the Member States to national treatment, the Economic Court at the same time noted that, based on the objectives of the investment policy of the Member States, legal investment regime member states on each other's territory cannot be less favorable than the treatment of investments made by investors from other states, who are not parties to the Agreement, and they may qualify for benefits and guarantees provided under national laws on foreign investment. 32. CIS CONVENTION ON THE PROTECTION OF INVESTOR RIGHTS 1997 The next step in the development of cooperation between the CIS member states in the field of investment activity was CIS Investor Protection Convention 1997 By concluding the Convention on the Protection of the Rights of Investors, the participating states set themselves the task of creating a common investment space on their territory. It is wider in scope than the agreements discussed above, its rules apply to various types of investments registered in the territory of the participating States, as well as to investors of various nationalities. Thus, if the agreements apply only to investors of the member states, then the Convention is also valid for investors from third countries. According to Art. 5 conventions investment regime defined as National and deviations from it are established in a special order. The participating states have the right to enshrine them in their legislation at the time of accession to the Convention, then they have the right to revise the list of exemptions, subject to reporting this to the Interstate Economic Committee. If, after the entry into force of the Convention, the provisions of national law relating to investments are changed in such a way that the conditions and regime for investment activities are worsened, in the opinion of one or more participating States, then this issue may be submitted to the CIS Economic Court or other international courts. or international arbitration courts. When the said courts issue a decision confirming the deterioration of the conditions and regime of investment activity, the effect of the said legislative norms is suspended from the moment of their adoption, i.e., such conditions and regime are preserved as if these norms had not been adopted. The Convention provides almost the same guarantees, as well as under national law. In accordance with Art. 9 of the Convention, investments are not subject to nationalization and cannot be requisitioned, except in exceptional cases (natural disasters, accidents, epidemics, epizootics and other circumstances of an emergency nature), when these measures are taken in the public interest. Nationalization or requisition cannot be carried out without adequate compensation being paid to the investor. According to Art. 10 of the Convention, compensation is paid in the currency in which the investment was made. Investors are provided with a guarantee of the use of income and the unhindered transfer of income to any country at the discretion of the investor (Article 11 of the Convention). 33. MULTILATERAL INVESTMENT TREATIES Main multilateral investment treaties are the Washington Convention of 1965 and the Seoul Convention of 1985. They appeared in order to provide additional guarantees to foreign investors and ensure the stability of relations in the course of foreign investment activities. Washington Convention was concluded in order to transfer investment disputes from the field of international legal relations to the field of private law relations. Prior to its conclusion, foreign investors had rather limited opportunities to settle them. They could either apply to a state court or to international commercial arbitration. In the first case, as a rule, it was not possible to achieve the protection of their rights, and in the second, special grounds are needed, in particular, the consent of both parties. Therefore, investors who encountered difficulties in resolving investment disputes applied for diplomatic protection to the state of their nationality, and it, in turn, made demands on the recipient state. The states-participants of this Convention created a special international body - International Center for the Settlement of Investment Disputes, where the said dispute may be submitted for its consideration if there is a written agreement between the parties. It is settled on the same principles as ordinary private law disputes. The Washington Convention specifically stipulates that the state of origin of an investment cannot act with diplomatic protection for its investors if the dispute is referred to the International Centre. Disagreements between the parties may be resolved through arbitration, conciliation or other means of dispute resolution. On Seoul Convention the participating states, which included both exporting states and capital importing states, created an international intergovernmental organization for investment guarantees that covers investment risks on the principles of insurance. The statutory fund of this organization is formed from the contributions of all member countries, and from it the risks associated with the investment activities of persons having the nationality of the participating states on the territory of the participating states are covered. Such a scheme of interrelated interests makes it possible to ensure a certain stability of international investment relations. Investors of the Member States may apply to multilateral agency with a request to conclude a guarantee agreement. It is concluded if the investors, investments and risks that the investor wishes to insure comply with the requirements of this Convention. Thus, only those risks that can be classified as political are covered. In particular, this is the nationalization of investments, restrictions on the transfer of currency, civil unrest, violation of the contract by the state. In case of occurrence of risks, the Agency provides the investor with compensation, and then the rights or claims of the investor related to his investments are transferred to the Agency. 34. CONCEPT AND SOURCES OF LEGAL REGULATION OF FOREIGN ECONOMIC TRANSACTIONS Foreign economic transaction (FEA) - bilateral, multilateral (contracts) or unilateral transactions between persons of different nationality, aimed at establishing, changing, terminating industrial cooperation relations, exchanging goods, information, works, services, results of intellectual activity, including exclusive rights to them (intellectual property ), which are not of a domestic nature. WES is far from all transactions regulated by PIL. They are part of the whole concept of a "transaction with a foreign element", which can include any transactions, including household ones, if the parties have different nationalities or the place of the transaction, or the object of the transaction is located abroad. The need to identify and study the special legal concept of "VES" is due to the specifics of national legal regulation. The national law of Russia, the CIS countries, as well as some other states that were previously part of the socialist camp, establishes certain imperative prescriptions in relation to these transactions. As an example of the normative legal acts of the Russian Federation in this area, we can name: the Federal Law "On state regulation of foreign trade activities", "On measures to protect the economic interests of the Russian Federation in the implementation of foreign trade in goods." "On Export Control". "On the coordination of international and foreign economic relations of the constituent entities of the Russian Federation", "On some issues of granting benefits to participants in foreign economic activity"; Order of the State Customs Committee of the Russian Federation "On the procedure for registering participants in foreign economic activity in the customs authorities of the Russian Federation". The state controls foreign economic activity (FEA) mainly in the field of customs and currency regulation. There is no need to obtain a special permit to carry out foreign economic transactions. However, in Russia, there are still certain formalities regarding statistical reporting, transaction passports, licensing and quotas, registration of participants in foreign economic activity, ensuring compliance with standards, certification, and safety of goods imported into the territory of the Russian Federation. International legal regulation of international commercial transactions is expressed in a fairly wide unification, carried out in a variety of ways. The development in everyday practice of professional participants in the international commercial turnover of uniform rules has led to the emergence sources of regulation of different legal nature, differing in legal force. Among the most common are: the Vienna Convention on Contracts for the International Sale of Goods of 1980; The Hague Convention on the Law Applicable to Contracts for the International Sale of Goods, 1986; Incoterms 2000; UNIDROIT Principles of International Commercial Contracts 2004; Uniform Rules for Documentary Letters of Credit; Unified rules for collection. 35. FORM OF FOREIGN TRADE Strict separation of concerns forms и content transactions with a foreign element is an indispensable condition for proper conflict and substantive regulation. Conflicting various bindings are applied on these issues, therefore, a situation may well arise when the form of the transaction (oral or written - simple / notarial) will be governed by the law of one state, and the content of the transaction, the rights and obligations of the parties, the so-called obligation status of the transaction will be governed by the law of another states. In particular, if we compare the conflict rules governing the form and content of transactions, we can find that they use different criteria in bindings. The transaction form is subject to the law of the place where it was made. The content of the transaction is subject to the law of the country with which it is most closely connected. This law is understood to mean the law of the country where the domicile or principal place of business of the party that performs the performance that is decisive for the content of the contract or assumes the main obligation is located. These rules are general and apply to all transactions with a foreign element. In a number of cases these general rules are used exceptions. In particular, with regard to the form, the conflict of laws rules of the Civil Code of the Russian Federation provide for exceptions in the case of foreign economic transactions: "the form of a foreign economic transaction, at least one of the parties to which is a Russian individual or legal entity, is subject to Russian law, regardless of the place of the transaction." These rules should apply regardless of where the parties made such a transaction, if one of the parties to the transaction is a legal entity from the Russian Federation or an individual who has Russian citizenship or lives in Russia. These norms are imperative, and it is impossible to bypass the binding to Russian law in relation to the form of foreign economic transactions. The provisions of Russian conflict of laws allow autonomy of will (choice of law by the parties to the transaction) in relation to the rights and obligations of the parties, but do not allow this in the case of the form of the transaction. The requirement of the law previously in force in Russia on a simple written form of the transaction was due to the USSR reservation to Art. 11 of the Vienna Convention. When ratifying the Vienna Convention, the governments of the USSR and a number of other states declared that any provision of the Convention that allows for a contract of sale or its modification or termination by agreement of the parties, or an offer, acceptance or any other expression of intent to be made not in writing, is inapplicable if at least one of the parties has its place of business in the relevant states. This clause continues to apply to Russia. International treaties in which the Russian Federation participates also contain conflict of laws rules on the form of a transaction. The conflict rules of international treaties mainly come from the place of the transaction. 36. AGREEMENT FOR THE INTERNATIONAL PURCHASE AND SALE OF GOODS. VIENNA CONVENTION 1980 Under a contract of sale, one party (seller) undertakes to transfer a thing (goods) into the ownership of the other party (buyer), and the buyer undertakes to accept this goods and pay a certain amount of money (price) for it. In international commerce, this type of contract is most common, and its international legal regulation is characterized by a very high degree of unification. Among the most important sources, which have become very widespread, are 1980 Vienna Convention on Contracts for the International Sale of Goods and Incoterms. There are currently 59 countries participating in the Vienna Convention. The scope of the Vienna Convention is quite wide. The main condition for its application is the presence of commercial enterprises of the parties in different states. The Vienna Convention does not apply to the sale of: goods that are purchased for personal, family or household use; from an auction; in the order of enforcement proceedings or otherwise by virtue of law; securities, shares, security papers, negotiable instruments and money; ships of water and air transport, as well as hovercraft; electricity. Main issues regulated by the Vienna Convention: conclusion of an agreement; rights and obligations of the parties (seller and buyer); a responsibility. An offer to conclude a contract addressed to a certain person must be sufficiently specific and express the intention of the offeror to be bound in the event of acceptance, and must also contain the designation of the goods and its quantity. An offer cannot be revoked if it specifies a certain period for acceptance or if the addressee considers the offer to be irrevocable. The most important responsibility of the seller is to supply goods of good quality. If the quality is not defined in the contract, then the conformity of the goods can be determined according to the following criteria: the goods are not suitable for the purposes for which they are usually used, the goods are not suitable for any specific purpose, the goods do not have the qualities of the presented sample, the goods are not packed in the usual way. The buyer's main obligations are to accept the goods and pay the price. If the price is not specified in the contract, then it is determined as the price that, at the time of the conclusion of the contract, was usually charged for similar goods sold under comparable circumstances in the relevant area of \uXNUMXb\uXNUMXbtrade. A responsibility. The provisions of the Liability Convention are based on the principle of full compensation for damages. Under the losses in the Convention is understood the real damage that was caused to the party by default, including lost profits. In addition, if a party is in arrears in the payment of a price or other amount, the other party is entitled to interest on the amount in arrears without prejudice to any claim for damages. The Party shall not be liable for failure to fulfill any of its obligations if it proves that it was caused by an obstacle of insuperable force (force majeure). 37. AGREEMENT FOR THE INTERNATIONAL PURCHASE AND SALE OF GOODS. INCOTERMS Incoterms. This document of the International Chamber of Commerce (ICC) is usually applied on the basis of the express or implied will of the parties. Incoterms was first published by the ICC in 1936 and has since undergone many revisions. To date, Incoterms is valid in the 2000 edition. Referring to the basic condition of Incoterms, it is necessary to specify the year of publication of this document. Incoterms contain an interpretation of the basic conditions for the delivery of goods. There are 13 of them in the current edition, they are divided into four groups. Group E includes one term under which the seller only delivers the goods to the buyer in the seller's own premises. Under the basic conditions of group F, the seller is obliged to deliver the goods to the carrier appointed by the buyer. Group C includes terms under which the seller must contract for carriage but does not assume the risk of loss or damage to the goods or additional costs due to events occurring after shipment and dispatch. The last group D contains terms under which the seller must bear all costs and risks necessary to deliver the goods to the country of destination: EXW - EXW; FCA - free carrier; FAS - free along the ship; FOB - free on board; CFR - cost and freight; CIF - cost, insurance and freight; CPT - freight-carriage paid to; CIP - freight and insurance paid to; DAF - delivery to the border; DES - delivery from ship; DEQ - delivery from the pier; DDU - delivery free of duty; DDP - Delivery Duty Paid. It should be emphasized that the scope of Incoterms is limited to issues related to the rights and obligations of the parties to the contract of sale in relation to the supply of goods sold. So, despite the fact that some basic conditions provide for certain obligations of the seller or buyer to conclude contracts of carriage and insurance, Incoterms does not regulate these types of contractual relations. In addition, Incoterms does not deal with the consequences of breach of contract and exemption from liability due to various impediments. These issues must be resolved by other terms of the contract of sale and relevant laws. 38. INTERNATIONAL LEASING AGREEMENT In international practice, financial and operational leasing are distinguished. Financial leasing, characterized by the following features: the participation of three persons, namely the manufacturer of the leasing object, the lessee and the lessor, which, as a rule, is a specialized company professionally engaged in leasing machinery and equipment; a complex of contractual relations, since leasing is carried out on the basis of two or more contracts, which are primarily a contract of sale and leasing itself, as well as often other contracts (credit, insurance, maintenance of property, etc.); use of property for business purposes; the acquisition of property specifically for leasing, which is a condition for classifying an agreement as a lease or leasing and, accordingly, a condition for granting an appropriate tax regime. Operational leasing is concluded for a rather short period, which is less than the full depreciation period of the property, as a rule, without the right to buy out the leasing object (although, as can be seen from the Russian law, this is not a sign of operational leasing). It can be distinguished: states where the conclusion of leasing transactions is regulated by special laws on leasing or other legislative acts (France, Italy, Belgium, England, Australia, New Zealand, a number of CIS member states, including the Russian Federation; countries that do not have special laws and by-laws acts in the field of leasing, where general provisions of civil and commercial law are widely used in relation to leasing transactions (USA, Germany). Uniform regulation of leasing issues, which are treated differently in the legal systems of different countries, has been undertaken in Conventions on international financial leasing, adopted in May 1988 in Ottawa (Ottawa Convention). The purpose of its conclusion is to clarify the basic terminology for financial leasing (leasing) and to develop unified norms that regulate the legal relationship between the parties to a leasing transaction. The scope of application of the Ottawa and Vienna conventions is similar. According to Art. 3 The Ottawa Convention applies if the places of business of the parties to the leasing agreement are located in different states. An international treaty regulating leasing agreements with a foreign element may also be 1998 CIS Convention on Interstate Leasing The subject of regulation of this convention is leasing relations, in which economic entities of two or more participating states participate (for legal entities, nationality is determined by the criteria of incorporation or permanent location) (Articles 1, 5). The CIS Convention proceeds from the provisions of the Ottawa Convention (in the text of the CIS Convention there are even references to the Ottawa Convention). At the same time, the CIS Convention is more detailed in defining concepts, characterizing the subjects of leasing operations and types of leasing. The CIS Convention singles out financial, operational, returnable, compensatory, barter leasing. 39. CONTRACT FOR THE INTERNATIONAL CARRIAGE OF GOODS. WARSAW CONVENTION OF 1929 Under the contract for the carriage of goods, the carrier undertakes to deliver the goods entrusted to him by the consignor to the destination for a fixed fee and to issue the goods to the authorized person, the consignee. The conclusion of a contract for the carriage of goods is confirmed by the preparation and issuance of a waybill or bill of lading to the consignor. Allocate transportation: marine; air; automotive; railway. If transportation is carried out by several modes of transport, then mixed transportation is also distinguished. In addition, depending on the characteristics of the organization of the transportation process, container transportation can be distinguished, as well as transportation with the participation of a forwarder. Features of the legal regulation of transportation, entrenched in national and international law: the contract of carriage is executed by issuing an appropriate transport document, bill of lading or waybill; presumed fault of the carrier; limited limit of carrier's liability; claims procedure for settling disputes; reduced statute of limitations. The main international universal agreements on the carriage of goods: the United Nations Hamburg Convention on the Carriage of Goods by Sea, 1978 (Hamburg Rules); Warsaw Convention for the Unification of Certain Rules for International Carriage by Air of 1929 (Warsaw Convention); 1956 Geneva Convention on the Contract for the International Carriage of Goods (CMR); Convention on International Carriage by Rail in Western Europe (COTIF) and the Agreement on International Freight Traffic (SMGS), valid for the CIS countries and some former socialist states. Warsaw convention. The carrier is liable for damage that was caused from the moment the cargo was accepted by the carrier until the moment it was delivered to the recipient. It doesn't matter if the cargo is on the airfield or on board the ship, it doesn't even matter if the ship lands outside the airfield at any place. The carrier is not liable if he proves that he has taken all necessary measures to avoid the occurrence of adverse consequences. Special cases of exemption from liability, as in the case of maritime transport, are not specifically stipulated, but Art. 20 establishes an exemption from liability if the carrier proves that the damage was caused by piloting errors or a navigational error (this rule is canceled under the Hague Protocol). According to the Warsaw Convention, the receipt of cargo without filing a claim implies its delivery in proper condition in accordance with the terms of the shipping document. Disputes arising from contracts for the international carriage of goods by air are subject to consideration in the courts of the member states of the Warsaw Convention at the choice of the plaintiff at the location of the main place of business of the carrier, the location of the place of business through which the contract of carriage was concluded, at the place of destination of carriage. The limitation period is set at 2 years from the moment the aircraft arrives at its destination or from the date it should have arrived. 40. EXCLUSIVE RIGHTS IN PRIVATE INTERNATIONAL LAW Exclusive rights - "intellectual property". Relationship Features exclusive rights with a foreign element: 1. They have a strictly territorial nature of action, property protected under the laws of one state may not be protected under the laws of another state. 2. Conflict rules do not apply to property. The only exceptions are contractual relations on the assignment or transfer of these rights. 3. The protection of the rights of aliens is determined, along with the national law of the state of the court, by international treaties to which this state is a party. The system of international treaties on intellectual property issues: multilateral (1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organs) and bilateral (Agreement between the Russian Federation and Belarus on cooperation in the field of industrial property protection, 1994); universal (WIPO Copyright Treaty 1994) and regional (Eurasian Patent Convention 1994); treaties on intellectual property in general (1994 WTO Agreement on Trade-Related Aspects of Intellectual Property Rights), Treaties for individual objects or groups of objects (Berne Convention 1886 for the Protection of Literary and Artistic Works), Treaties to facilitate procedures related to the granting of protection (Patent Cooperation Treaty 1970), treaties by classification (Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, 1957); contracts, dedicated to intellectual property, and treaties on other issues, but containing some provisions on intellectual property (Section VI of the 1994 Partnership and Cooperation Agreement establishing a partnership between the Russian Federation, on the one hand, and the European Communities and their Member States, on the other hand, Articles 41-43 of the Vienna Convention on Contracts for the International Sale of Goods) . A special place is occupied by the so-called basic conventions: Paris Convention for the Protection of Industrial Property of 1883; Berne Convention of 1886; World Copyright Convention 1952; Rome Convention 1961 41. COPYRIGHT AND RELATED RIGHTS The main international treaties in the field of copyright are Berne Convention for the Protection of Literary and Artistic Works of 1886 and the Universal Copyright Convention of 1952 The first of them provides for a fairly high level of protection. The second was concluded in order to provide States that have not acceded to the Berne Convention, the opportunity to participate in the system of international copyright protection. At the moment, the United States, Great Britain, Russia and other states-participants of the World Convention have become parties to the Berne Convention. However, the World Convention has not lost its force. It is of particular importance in matters of granting foreigners copyright protection for works for countries - the former republics of the USSR. The Soviet state was not a party to the Berne Convention, but participated in the World Convention. The settlement of problems related to the fulfillment of obligations under the World Convention has become the subject 1993 CIS Agreement on cooperation in the field of copyright and related rights. The participating states must ensure on their territories the fulfillment of international obligations arising from the participation of the USSR in the World Convention, proceeding from the fact that the date of entry into force of this convention on May 27.05.73, 1993 is the date from which each participating state considers itself bound by its provisions. Without retroactive effect, the Universal Convention shall apply between the States Parties. However, the participating states, the former republics of the USSR, under the terms of the 27.05.73 Agreement, agreed to apply the Universal Convention in their relations to works created both after and before XNUMX. The Berne Convention, unlike the World Convention, is based on the recognition of retroactive effect. The date of entry for Russia - 15.03.95/XNUMX/XNUMX means the following: in order for a work to be protected in accordance with the norms of the Berne Convention in Russia, it must not become public domain on that date in the country of origin. The mechanisms of national treatment under both Conventions are approximately the same. National protection in the participating States should be granted: citizens of other member states for published and unpublished works; persons permanently residing in the territory of the Member States for published and unpublished works; to other persons for works published for the first time in one of the participating States. According to Art. 1256 of the Civil Code of the Russian Federation Copyrights of foreigners are recognized and protected: if the work, both made public (the same as publishing, but implies a variety of ways of bringing the work to the public knowledge), and not made public, is in any objective form on the territory of the Russian Federation (the work is also considered to be published in the Russian Federation, if within 30 days after the date of the first publication outside the Russian Federation, it was published on the territory of the Russian Federation); in accordance with international treaties of the Russian Federation. 42. INDUSTRIAL PROPERTY RIGHTS As a rule, the admission of foreigners to the procedures of patenting and registration is carried out through patent attorneys who are persons of the respective state. In addition, if no special criteria for protection are established for works, then for objects of industrial property they exist and must be met in order to obtain national legal protection. Thus, there are more obstacles in the extension of national legal protection to foreigners in the field of industrial property than in the field of copyright. Therefore, the minimization of the territorial nature of exclusive rights is carried out through international treaties of a very different nature. Paris Convention for the Protection of Industrial Property, 1883 extends the national treatment to the persons of the participating States and establishes a minimum of legal protection of industrial property objects. It has received the same wide recognition as the Berne Convention. 1970 Patent Cooperation Treaty provides persons of the Member States with the opportunity to minimize time and material losses when obtaining a patent in a number of Member States. Eurasian Patent Convention 1994, concluded by the CIS member states. On its basis, so-called "Eurasian patents" are issued, according to which in the participating States the invention is granted the same protection as the inventions protected by national patents. Exceptions to national treatment are provisions of national law relating to judicial and administrative procedure and to the competence of judicial and administrative authorities, as well as to the choice of residence or the appointment of an attorney. By virtue of Art. 1247 of the Civil Code of the Russian Federation, citizens permanently residing outside Russia, foreign legal entities must conduct business with the patent authority of the Russian Federation through patent attorneys registered by them. Brand names - the designation of a legal entity, which makes it possible to distinguish it from other participants in the economic turnover and to identify it. The right to a company name is acquired from the moment of state registration. On the basis of the Paris Convention, trade names protected in other member states should be protected in Russia: "a trade name is protected in all member states without mandatory filing or registration and regardless of whether it is part of a trademark." 43. PROTECTION OF INDUSTRIAL PROPERTY Trade names are perhaps the only industrial property subject matter that does not require special procedures for granting protection. For other objects, protection is subject to rather complex procedures, and their implementation in a number of countries is quite cumbersome. To make them easier: 1. Right of priority means that a patent application or an application for registration of a mark, filed in a state party to the relevant international treaty on the protection of industrial property rights, is recognized as filed on the date of filing the first application in another state party. The priority periods are 12 months for patents for inventions and utility models and 6 months for industrial designs, trademarks and service marks. The right of priority is provided for by international treaties and national laws (Civil Code of the Russian Federation, Part IV). 2. Procedures for filing an international patent application and conducting an international patent search made possible by the Patent Cooperation Treaty of 1970 for persons subject to national treatment under the Paris Convention. A patent application duly filed with a so-called "receiving office", which may be the International Bureau of WIPO, a regional patent office (e.g., the Eurasian Patent Office) or an authorized national patent office of a Member State (e.g., Rospatent), is equivalent to submission of a properly completed national application. The international application is subject to an international search. Its purpose is to identify the relevant level of technology - the most important criterion for the patentability of an invention. 3. Regional patent systems created in different regions of the world. There is a corresponding system within the CIS. It was put into effect on the basis of the Eurasian Patent Convention of 1994. If the provisions of the Patent Cooperation Treaty facilitate only some stages of the patent procedure, the Eurasian patent greatly facilitates and simplifies the entire patent procedure. If the applicant does not have a permanent residence or permanent location in the territory of any state party to the convention, he must be represented by a patent attorney. Any person who has the right to be a representative before the national office of a state party to the Eurasian Convention and is registered with the Eurasian Office as a patent attorney may act as a representative before the Eurasian Office. 4. International registration of marks is carried out under the Madrid Agreement of 1891, supplemented by the Protocol of 1989. Persons who are subject to national treatment under the Paris Convention can secure protection for marks registered in their country of origin in all other States parties to the Madrid Agreement by filing an application with the International Bureau of WIPO . The basis of the appeal is the national registration. 44. CONFLICT REGULATION OF MARRIAGE AND FAMILY RELATIONS UNDER RUSSIAN LAW With the adoption in 1995 of the Family Code (IC of the Russian Federation), the MCHP of the Russian Federation has undergone significant changes. 1. Marriage on the territory of the Russian Federation. The form and procedure for concluding a marriage are determined by Russian law, and the material conditions for entering into marriage are determined by the law of citizenship for citizens or the law of permanent residence for stateless persons of each of the persons entering into marriage. 2. Marriage abroad. If one or two spouses in a marriage concluded abroad are citizens of the Russian Federation, then such a marriage is recognized in Russia, subject to the form at the place of conclusion and the material conditions for marriage under Russian law. Marriages entered into abroad between foreign citizens are recognized in Russia both in form and in terms of material conditions under the law of the state where the marriage was concluded. 3. Marriage in a diplomatic, consular office of the Russian Federation or a foreign state. Both persons must have the nationality of the state that appointed the ambassador or consul. The conclusion of such marriages is determined by the national law of the state that appointed the ambassador or consul, for example, the consular charter, and the law of the state where recognition is required, as well as the consular agreement between these states. 4. Divorce in the Russian Federation. Marriages between citizens of the Russian Federation and foreigners, as well as marriages between foreigners, are dissolved under Russian law. Citizens of the Russian Federation residing outside its borders can dissolve a marriage with a spouse residing abroad, regardless of his nationality, in a Russian court. 5. Divorce abroad. Divorce between citizens of the Russian Federation, or between citizens of the Russian Federation and foreigners, committed abroad, is recognized in Russia. 6. Divorce in a diplomatic or consular office. It is possible in cases where divorce is allowed out of court. Personal non-property and property relations of spouses. The choice of applicable law is decided on the basis of the territorial principle. If the spouses have or had a common place of residence, then the conflict binding is the law of the state of the common place of residence / the last joint place of residence. International adoption (adoption). When adopting in Russia a child who is a citizen of the Russian Federation by foreigners, the applicable law is determined by the personal law of the adopter. In addition, the requirements of Russian law, as well as the provisions of international treaties on international adoption with the participation of the Russian Federation, must be taken into account. In international adoptions where the nationality of the adopter and the child do not match, it may be necessary to obtain the consent of the competent authorities of the state of nationality of the child. When adopting on the territory of Russia by citizens of the Russian Federation a child - a citizen of a foreign state, it is necessary to obtain the consent of the competent authority of the state of which the child is a citizen. 45. INTERNATIONAL LEGAL REGULATION OF MARRIAGE AND FAMILY RELATIONS The most important role in the settlement of marriage and family relations with a foreign element is played by agreements on legal assistance. As an example, let's take The 1993 Convention on Legal Assistance and Legal Relations between the CIS Member States. The norms of part three "Family Affairs" proceed from the same conflict of laws principles as the law of the Russian Federation (Articles 26-28, 37). The specificity of the legal mechanisms of the Convention lies in the delimitation of the competence of the member states. Basically, competence is distributed on the basis of the same rules as the choice of applicable law (clause 6, article 27). The issue of competence in the event of divorce is resolved in a special way. According to paragraph 1 of Art. 29 of the Convention, if both spouses have the nationality of a State Party, then the authorities of that State are competent, and if at the time of the application both spouses reside in the territory of another State Party, then the authorities of that State are also competent. According to paragraph 2 of Art. 29 if one of the spouses is a citizen of one Member State and the other of another, the competent authorities of the Member State in whose territory both spouses reside. If, however, one of the spouses resides in the territory of one State Party, and the other in the territory of another, then the institutions of both States are competent. In practice, consular officials can provide great assistance in resolving complex problems in marriage and family relations with a foreign element. They are entitled to act as a civil registrar. For example, Art. 42 of the Consular Convention between the Russian Federation and the Republic of Belarus of 1996 provides that consular officials of the parties may perform functions in relation to the registration of acts of civil status, keep books of birth and death records of citizens of the sending state. The consular performance of these functions must be freely recognized in both states. 46. NATIONAL LEGAL REGULATION OF OBLIGATIONS FROM CAUSE OF HARM The conflict rules of Russian law on obligations from causing harm are enshrined in Art. 1219-1222 of the Civil Code of the Russian Federation. The basic rule is the choice of the law of the country where the action or other circumstance took place that served as the basis for the claim for damages. In the event that, as a result of an act or other circumstance, harm occurred in another country, the law of that country may be applied if the tortfeasor foresaw or should have foreseen the occurrence of harm in that country. Exist a number of exceptions from the said general rule. 1. The same nationality of the parties in the obligations of infliction of harm. The law of that country shall apply to obligations arising from infliction of harm abroad, if the parties are citizens or legal entities of the same country. If the parties to such an obligation are not citizens of the same country, but domiciled in the same country, the law of that country shall apply. 2. The choice of the applicable law by the parties to the obligation of causing harm. After the commission of an action or the occurrence of another circumstance that caused the harm, the parties may agree on the application of the law of the country of the court to the obligation arising as a result of the harm. The choice of the applicable law in obligations from causing harm is limited to only one legal order - the law of the state where the dispute is being considered. 3. The law applicable to liability for damage caused by defects in a product, work or service. For example, such harm may be due to inaccurate or insufficient information about a product, work or service. We are talking about those situations where there is no contractual relationship between the parties, otherwise the relevant conflict of laws rules should apply. The victim can choose: the law of the country of residence, the main place of activity of the seller, the manufacturer of the goods, the tortfeasor; the law of the country of residence, the main place of activity of the victim; the law of the country of performance of work, provision of services, purchase of goods. In the last two cases, the victim can make a choice if the tortfeasor does not prove that the goods entered the country concerned without his consent. 4. The law applicable to obligations arising from unfair competition. Obligations arising as a result of unfair competition shall be governed by the law of the country whose market is affected by such competition, unless otherwise follows from the law or the nature of the obligation. Conflict rules on obligations from causing harm are also contained in the Merchant Shipping Code of the Russian Federation, which entered into force on 01.05.99. 47. INTERNATIONAL LEGAL REGULATION OF OBLIGATIONS FROM HARM Conflict regulation of obligations from infliction of harm is contained in agreements on legal assistance. The main rule they use is the choice of the law of the Member State where the act or other circumstance that gave rise to the claim for damages took place. The traditional exception is made for obligations in which the parties are persons of one state, in which case the law of the relevant state applies. For example, such rules are enshrined in the 1993 Convention on Legal Relations and Legal Relations of the CIS. Preference shall be given to the court of the Member State in whose territory the act or other circumstance that gave rise to the claim for damages took place. The victim may also bring an action in the court of the State Party at the place of residence of the defendant. International legal regulation in the area under consideration is also determined international universal treaties on issues of material unification. These treaties introduce unified substantive legal norms on liability for damage caused by specific objects. - International Convention on Civil Liability for Damage from Oil Pollution, 1969; Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, 1952 Limits liability except in cases where the damage was the result of willful or reckless act/omission, and proceed from stricter grounds of liability than liability on the basis of fault. The list of grounds for exemption from liability is limited to force majeure, hostilities and guilty behavior of the victim. - The 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy and the 1963 Brussels Supplementary Convention; Brussels Convention on the Liability of Operators of Nuclear Ships, 1962 Regulates issues of civil liability for nuclear damage. - The 1972 Convention on International Liability for Damage Caused by Space Objects establishes rules and procedures regarding liability for damage caused by space objects and ensuring prompt payment of full and fair compensation to victims of such damage. States, individuals and legal entities may also file claims in the State that launched the space object. regional agreements. The CIS member states concluded the Agreement on Mutual Recognition of the Rights to Compensation for Harm Caused to Workers by Mutilation, Occupational Disease or Other Damage to Health Related to the Performance of Their Labor Duties, 1994. Bilateral agreements. For example, the rules of the 1995 Agreement between the Republic of Belarus and the Russian Federation on issues of jurisdiction and mutual legal assistance in cases related to the temporary presence of military units of the Russian Federation from the strategic forces on the territory of the Republic of Belarus. 48. INTERNATIONAL CIVIL PROCESS International civil procedure - This is the process of settling disputes on civil law relations with a foreign element in state courts. Conflict regulation determines only substantive foreign law. On procedural issues, the court does not choose the applicable law; principle of "law of judgment". Nevertheless, along with the norms of national procedural law, the international civil process is determined by specific national legal and international legal mechanisms. Moreover, due to the dominance of the "law of the court" principle and the non-application of conflict of laws regulation in relation to the procedural issues of PIL, international treaties establishing relations of legal assistance between states, obliging to recognize documents and decisions issued on the territory of the participating states, ensuring the extension to foreigners are extremely important. national regime on procedural matters. The Russian Federation is bound by a number of such international treaties. They not only greatly simplify many procedural issues, but even make many procedures possible. Let's name the most important of them: - Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Matters dated 1993, the participants of which are Armenia, Belarus, Kazakhstan, RF, Ukraine, Uzbekistan, Tajikistan, Turkmenistan, Kyrgyzstan, Moldova, Azerbaijan, Georgia; - Hague Convention Abolishing the Necessity of Legalization for Foreign Public Documents, 1961, whose members are Australia, Argentina, Armenia, Bahamas, Belarus, Belgium, Bosnia and Herzegovina, Great Britain, Hungary, Greece, Israel, Ireland, Italy, Cyprus, Latvia, Lithuania, Luxembourg, Macedonia, Malta, Mexico, the Netherlands, Norway, Panama, Portugal, Seychelles, Slovenia, USA, Turkey, Finland, France, Germany, Croatia, Czech Republic, Switzerland, Sweden, South Africa, Japan, etc.; - legal aid treaties with Spain on 26.10.90/23.02.82/19.02.75, Algeria on 15.07.58/10.12.81/21.05.81, Bulgaria on 22.06.73/25.01.79/19.01.84, Hungary on 19.06.92/16.12.57/28.11.84, Vietnam on 03.02.93/21.07.92/23.09.88, Greece on 06.12.85/28.12.57/03.04.58, Iraq on 26.06.84/11.08.78/12.08.82, Italy on 24.02.62/XNUMX/XNUMX, Cyprus dated XNUMX/XNUMX/XNUMX, China dated XNUMX/XNUMX/XNUMX, North Korea dated XNUMX/XNUMX/XNUMX, Cuba dated XNUMX/XNUMX/XNUMX, Latvia dated XNUMX/XNUMX/XNUMX, Lithuania dated XNUMX/XNUMX/XNUMX, Mongolia dated XNUMX/XNUMX/XNUMX, Yemen dated XNUMX/XNUMX/XNUMX, Poland dated XNUMX/XNUMX .XNUMX, Romania dated XNUMX/XNUMX/XNUMX, Tunisia dated XNUMX/XNUMX/XNUMX, Finland dated XNUMX/XNUMX/XNUMX, Czechoslovakia dated XNUMX/XNUMX/XNUMX, with states formerly part of the SFRY, dated XNUMX/XNUMX/XNUMX. The international civil process traditionally includes the following problems: procedural rights of foreigners; legal assistance; international jurisdiction; court orders; recognition, enforcement of foreign judgments; legalization of documents for presentation in a foreign state. 49. INTERNATIONAL COMPETITION The basic rule that is used to determine the competent court is the place where the defendant is predominantly located. According to the norms AIC RF, the choice is made in favor of the domestic court, if there are any factors indicating the connection of the case with Russia. These include the following circumstances: the defendant resides or resides in the territory of the Russian Federation or his property is located in the territory of the Russian Federation; the governing body, branch or representative office of the foreign entity is located in the territory of the Russian Federation; the dispute arose out of a contract under which performance must take place or took place on the territory of the Russian Federation; the claim arose from causing damage to property by an act or other circumstance that took place on the territory of the Russian Federation, or upon the occurrence of damage on the territory of the Russian Federation; the dispute arose out of unjust enrichment that took place on the territory of the Russian Federation. GIC The Russian Federation proceeds from the general rule "locating the respondent organization or the place of residence of the respondent citizen on the territory of the Russian Federation." Additional rules determination of international jurisdiction: location in Russia of the place of residence of the defendant in the case of the recovery of alimony, as well as in the case of establishing paternity; causing harm to health or property on the territory of Russia; the claim stems from unjust enrichment that took place on the territory of Russia. According to the CIS Convention jurisdiction between the participating States is also distributed on the basis of the place of residence of the defendant. The courts of the Member States are competent also in cases when on their territories: trade, industrial or other economic activity of the enterprise (branch) of the defendant is carried out; the obligation from the contract that is the subject of the dispute has been or must be fully or partially performed. prorogation agreements. The possibility of concluding agreements on changing jurisdiction is provided for by the APC and CPC RF. Exclusive jurisdiction. The exclusive jurisdiction of the arbitration courts of the Russian Federation is provided for AIC in relation to cases involving foreign persons in disputes: in relation to state-owned property of the Russian Federation, including disputes related to its privatization; the subject of which is real estate located on the territory of the Russian Federation; on the invalidation of entries in the state registers of the Russian Federation. Exclusive jurisdiction according to the Code of Civil Procedure The Russian Federation is provided for in relation to: rights to real estate located in Russia; transportation in which the carrier is located in the territory of Russia; divorce, if both spouses have a place of residence in Russia; establishing a fact of legal significance, if the applicant in this case has a place of residence in Russia or the fact has been or is taking place in Russia; adoption (adoption), limitation of legal capacity, recognition as incapacitated, if the person in respect of whom the relevant procedures are carried out is a citizen of the Russian Federation. According to the CIS Convention exclusive jurisdiction is recognized for the state party at the location of the property, as well as at the location of the management of the transport organization-carrier. 50. JUDGING REPRESENTATIONS Often, in relations with a foreign element, it is required to perform some procedural actions abroad: draw up and send documents, conduct an inspection, seize and transfer material evidence, conduct an examination, interrogate parties, third parties, witnesses, experts. In order to carry out procedural actions in a foreign state, the court applies in a special order to the court of the corresponding state at the place of execution. The possibility, grounds and procedure for the execution of court orders are determined legal aid agreements. In principle, if there is no agreement on legal assistance between states, then the court may comply with a request for the execution of a procedural action from a foreign court on the basis of reciprocity or refuse. Typically, legal assistance treaties provide for the procedure for communication between the courts of the participating states through the central justice authorities (ministries of justice). Under the CIS Convention, a more simplified procedure for relations has been established. In particular, art. 5 provides that the competent institutions of justice of the Member States enter into relations with each other through their central, territorial and other bodies, unless a different procedure for relations is established. If there is no agreement on legal assistance, then the procedure for intercourse is carried out, as a rule, through diplomatic channels. According to paragraph 1 of Art. 8 of the CIS Convention, when executing an order, the requested institution applies the legislation of its country. At the request of the requesting institution, it may apply the procedural rules of the requesting State, if they do not conflict with the law of the requested State. Some international multilateral universal treaties also govern the issues of letters rogatory. Chapter II of the 1954 Hague Convention on Civil Procedure is devoted to these issues. According to Art. 8, 9, the courts of the Member States may apply to each other with a request to perform procedural actions. According to Russian law, a court or arbitration executes instructions if this is provided for by an international treaty of the Russian Federation or the Federal Law (Article 256 of the Arbitration Procedure Code of the Russian Federation, Article 407 of the Code of Civil Procedure of the Russian Federation). An order of a foreign court or a competent body of a foreign state is not subject to execution if it contradicts the public policy of the Russian Federation, does not fall within the competence of a court in the Russian Federation, or the authenticity of a document containing an order to perform certain procedural actions has not been established. 51. RECOGNITION, ENFORCEMENT OF FOREIGN JUDGMENTS In the Russian Federation, according to Art. 241 of the Arbitration Procedure Code of the Russian Federation and art. 409 of the Code of Civil Procedure of the Russian Federation, decisions of courts of foreign states are recognized and enforced in the Russian Federation, if the recognition and enforcement of such decisions is provided for by an international treaty of the Russian Federation and the Federal Law. In order for the procedures for the recognition and enforcement of a foreign judgment to be launched, an application (under the APC) or a petition (under the Code of Civil Procedure) of the party to the dispute in whose favor the decision was made is necessary. An application/petition for recognition and enforcement of a foreign court decision is submitted in writing to the court of the Russian Federation at the location or place of residence of the debtor, and if it is unknown, then to the court at the location of the debtor's property. When considering a request for recognition and enforcement of a foreign judgment, a Russian court shall notify the persons concerned of the time and place of the court session. The procedures for the recognition and enforcement of foreign judgments in Russia do not involve a review of the decision on the merits. The Russian court only establishes the presence or absence of grounds for recognition and enforcement. These include the following circumstances: the decision, according to the law of the state where it was adopted, has not entered into force; the losing party was not notified of the time and place of the hearing of the case, or for other reasons could not submit its explanations to the court: the case falls within the exclusive competence of the court of the Russian Federation; there is a court decision that has entered into legal force or a case is being considered by the court of the Russian Federation on a dispute between the same persons, on the same subject and on the same grounds; the statute of limitations for bringing a decision of a foreign court to enforcement has expired, namely a decision of a foreign court may be brought for enforcement within a period not exceeding three years from the date of its entry into force, if the specified period is missed, it may be restored at the request of the exactor; execution of a decision of a foreign court is contrary to the public policy of the Russian Federation. The list of grounds is exhaustive and cannot be denied on other grounds. Based on the results of consideration of an application for recognition and enforcement of a decision of a foreign court, a Russian court shall issue definition. It may be appealed to the court of cassation within one month from the date of its issuance. If enforcement of a foreign judgment is necessary, the recoverer shall be issued performance list. The international legal sources of regulation of the recognition and enforcement of judgments include: agreements on legal assistance, the CIS Agreement on the procedure for resolving disputes related to the implementation of economic activities in 1992, the 2001 Agreement between the Republic of Belarus and the Russian Federation on the procedure for the mutual execution of judicial acts of economic courts of the Republic of Belarus and arbitration courts of the Russian Federation, the Hague Convention of 1954 on issues of civil procedure. 52. LEGALIZATION Легализация - this is the establishment and certification of the authenticity of signatures on documents and acts and their compliance with the laws of the state on whose territory the document was drawn up. Documents issued on the territory of a foreign state have legal force only after legalization, unless otherwise provided by international treaties. This is mentioned in particular in Art. 255 of the Arbitration Procedure Code of the Russian Federation and art. 408 Code of Civil Procedure of the Russian Federation. International treaties play a very important role in regulating the problems that arise during the submission of documents issued abroad: consular conventions, treaties on legal assistance, as well as the Hague Convention of 1961 on the abolition of the need for legalization of foreign public documents issued abroad (Convention on apostille). The most liberal in this regard is the 1993 CIS Convention on Legal Assistance and Legal Relations. According to Art. 13 of this Convention, documents that, in the territory of one of the Contracting Parties, are made or certified by an institution or a specially authorized person within their competence and in the prescribed form and affixed with the official seal, are accepted in the territories of other Contracting Parties without any special certificate, and documents which in the territory of one of the Contracting Parties are considered as official documents, shall enjoy in the territories of other Contracting Parties the probative force of official documents. From a practical point of view, legalization is traditionally understood as the so-called "consular legalization". When legalizing the consul of the Russian Federation, the authenticity of the signatures on the documents issued by the authorities of the consular district testifies with the personal signature and seal of the consular institution. Along with consular legalization under the Hague Convention of 1961 on the abolition of the need for legalization of foreign public documents issued abroad, there are simplified legalization. If the authorized bodies of the States Parties to the Hague Convention consider it possible to affix a stamp of the established form, which is called an Apostille, on a document, then it has legal force on the territory of any State Party without further legalization. 53. INTERNATIONAL COMMERCIAL ARBITRATION. ITS TYPES Term "international commercial arbitration" used to refer to bodies dealing with commercial disputes in civil relations with a foreign element, which are not part of the system of state courts. Recourse to international commercial arbitration procedures has a number of pros and cons. Advantages connected with: - great freedom of choice of the parties in relation to the rules of the arbitration procedure; - the possibility of appointing certain persons as arbitrators, which ensures that the persons considering the case have special knowledge; - democratic nature of the course of the proceedings, which ensures the speed of consideration of the case; - the ability to ensure the confidentiality of commercial and production information. The disadvantages are due to the fact that: - the costs of implementing international commercial arbitration procedures can be quite large; - international commercial arbitration is not competent to take measures to secure claims, as well as to enforce the decisions made, therefore, in order to implement the relevant procedures, it is necessary to apply to the national judicial system. In world commercial practice are widely used two kinds international commercial arbitration: institutional arbitration and ad hoc arbitration. Institutional arbitration - This is a permanent arbitration, which is created at the national chambers of commerce and industry. Institutional arbitration is characterized by the presence of a certain structure, administrative apparatus, regulations that determine the rules of arbitration proceedings and an approved list from which the parties can choose arbitrators. In Russia, the institutional international commercial arbitration is the International Commercial Arbitration Court and the Maritime Arbitration Commission at the Chamber of Commerce and Industry of the Russian Federation. ad hoc arbitration created by the parties for one specific case. After the completion of the arbitration procedure, it ceases to exist. This type of arbitration can be particularly attractive due to the almost unlimited freedom of the parties involved. True, for this, the parties between which there are disagreements must be able to agree. Ad hoc arbitrations may be governed by any of the rules. The most popular and most frequently chosen are: the 1966 Economic Commission for Europe Arbitration Rules and the 1976 UNCITRAL Arbitration Rules. 54. INTERNATIONAL COMMERCIAL ARBITRATION. SOURCES OF LEGAL REGULATION In the Russian Federation, the main regulatory legal act in this area is Law of the Russian Federation "On International Commercial Arbitration". It defines the basic requirements for an arbitration agreement (a written form is required), the composition and competence of arbitration, the procedure for conducting arbitration proceedings, the rules for making an award and termination of proceedings, the grounds for challenging an arbitration award, the procedure for recognizing and enforcing arbitration awards. The provisions of the Law apply to international commercial arbitration if it is located on the territory of the Russian Federation. In addition, its rules apply to arbitration agreements regarding the form and procedure for the recognition and enforcement of arbitral awards when international commercial arbitration takes place abroad. The provisions of the Arbitration Procedure Code of the Russian Federation govern the recognition and enforcement of international commercial arbitration awards. Similar provisions are also contained in Section VIII of the Law "On International Commercial Arbitration". A person who has won a case in international commercial arbitration must file an application with the competent arbitration court of the Russian Federation within three years after the decision is made. Based on the application, proceedings are initiated, a ruling on recognition is issued, and a writ of execution is issued for enforcement. The process of recognition and enforcement of international commercial arbitration awards somewhat simpler than with respect to decisions of foreign courts. This is due to the action of international multilateral universal treaties on international arbitration. The Russian Federation participates in the following treaties in this area: the European Convention on Foreign Trade Arbitration of 1961, the Convention on the Settlement by Arbitration of Civil Disputes Arising from Relations of Economic and Scientific and Technical Cooperation, 1972 (the Moscow Convention of CMEA), the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 The most important among them is the New York Convention, the participants of which are more than half of the states of the world. It applies to awards rendered by arbitral tribunals in the territory of a State other than the State where recognition and enforcement are sought. Article III of the New York Convention imposes an obligation on all States Parties to recognize and enforce arbitral awards. Moreover, such decisions should not be subject to substantially more onerous conditions or higher fees or charges than those that exist for the recognition and enforcement of domestic decisions. If the award of international arbitration falls within the scope of a convention, then these provisions should take precedence over the provisions of national law.
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