The place of private law in the national legal system. International private law. Methods of regulation in private international law

PIL occupies a special place in the global legal system. Its main specificity is that private law is a branch of national law, one of the private law branches of the law of any state (Russian private law, French private law, etc.). It is included in the system of national private law along with civil, trade, commercial, family and labor. The concept of “international” here has a completely different character than in MPP; it means only one thing: in a civil legal relationship there is a foreign element (it does not matter at all whether it is one or more and which version of the foreign element). However, international private law is a very specific subsystem of the national law of individual states.

The special nature and paradoxical nature of its norms are expressed in the very term “domestic private law”. At first glance, this terminology seems absurd. There cannot be a branch of law that is both domestic (national) and international. In fact, there is nothing absurd here. We are simply talking about a legal system designed to directly regulate international relations of a non-state nature (arising in private life). The paradoxical nature of the rules of international private law is also expressed in the fact that one of its main sources is directly international private law, which plays an extremely important role in the formation of national private private law. It is customary to talk about the dual nature of the norms and sources of international private law. Indeed, this is perhaps the only branch of national law in which MPP acts as a direct source and has a direct effect. That is why the definition of “hybrid in jurisprudence” is quite applicable to private law.

The main (general) principles of private law can be considered those indicated in paragraph “c” of Art. 38 of the Statute of the International Court of Justice "general principles of law characteristic of civilized nations." General principles of law are generally recognized legal postulates, techniques of legal technology, “legal maxims” developed by the jurists of Ancient Rome. Let us list the general principles of law directly applicable in private law: you cannot transfer to another more rights than you yourself have; principles of justice and good conscience; principles of non-abuse of law and protection of acquired rights, etc. “Civilized nations” mean those states whose legal systems are based on adopted Roman law. The main general principle of private law (as well as national civil and international public law) is the principle of “pacta sunt servanda” (contracts must be respected). Special principles of international private law:

1) the autonomy of the will of the participants in the legal relationship is the main special principle of private law (as well as any other branch of national private law). Autonomy of will underlies all private law as a whole (the principle of freedom of contract; the freedom to have subjective rights or to renounce them; the freedom to turn to government bodies for their protection or to tolerate violations of one’s rights);

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

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

4) the principle of non-discrimination. Discrimination is a violation or restriction of the legal rights and interests of foreign persons on the territory of any state. The generally accepted norm of private law in all states is the absolute inadmissibility of discrimination in private law;

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

International private law or in English Private International Law is an independent branch of law, also a branch of legal science and an academic discipline. The expansion of foreign economic activity of Russian citizens and legal entities and internationalization leading to globalization concern all spheres of life of human society. The resulting relations between individuals and legal entities of different states are regulated by the rules of international private law.

The subject of PIL is civil, family and labor relations, complicated by a foreign or international element. The foreign element means that (1) the party to the legal relationship is foreign (a citizen of a foreign state, a foreign organization or the foreign state itself);

(2) the parties to legal relations belong to the same state, but the object of legal relations is located abroad;

(3) the emergence, change and termination of legal relations are associated with a legal fact taking place abroad (harm, conclusion of a contract, death).

Although the subject of private law is similar to the subject of civil law, it differs in that it is not ordinary property relations that are regulated, but those that arise in the international sphere. To recognize a legal relationship as subject to international private law, the presence of one foreign element is sufficient, but various combinations of foreign elements are possible. For example, a US citizen (emigrant from Russia) died in Paris, leaving a will for his deposit in a Swiss bank in favor of a Russian citizen living in Russia. In this case, the conflict of laws rule is subject to application - the law of the citizen’s last place of residence. The relationship must be private and international.

PIL regulates issues of civil legal capacity and legal capacity of foreign individuals and legal entities; property relations involving foreign persons; relations arising from foreign economic (trade, intermediary, installation and construction, etc.) contracts; financial, currency and credit and settlement relations; relations on the use of the results of intellectual work (copyrights, patents, etc.) of foreign individuals and legal entities; relations for the transportation of foreign goods; inheritance relations regarding property located abroad, and others.

PIL can be defined as a system of conflict of laws and unified substantive private law rules of the state regulating private law relations complicated by a foreign element.

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

The place of international private law in the legal system and its difference from public international law.

International private law as an independent legal science arose in the mid-19th century, and one of the founders is considered to be the American researcher, Judge Joseph Story, who published the book “Commentary on Conflicts of Laws” in 1834. PIL is also called a “polysystem complex”, since it relates partly to public international law and partly to domestic law. This branch includes norms of other branches of law (civil, family, labor). Despite the name, PIL has a national legal nature, and, being a separate branch of law, is not part of civil law, although the main rules of PIL are set out in Section 6 of the Civil Code of the Russian Federation

International private law relations are adjacent to international relations that are regulated by public international law. For example, the norms of agreements between Russia and other states on trade and economic cooperation relate to public international law, and real trade and economic relations between the states parties to these agreements are mediated by numerous contracts concluded by individuals and legal entities of these states. These relations no longer have a power character, since their subjects do not have sovereignty, are not parties to a concluded international treaty, but are under the supremacy of the state, by virtue of which it subordinates to its power all individuals and legal entities on its territory, and partly its citizens and legal entities located on the territory of foreign states.

The commonality between private international law and public international law is that in both cases we are talking about international relations in the broad sense of the word, that is, relations that go beyond the borders of one state, and the rules originally contained in the international treaty are applied as a source of international private law, and then transformed into norms of domestic legislation.

If there is a close connection between private law and international law, the following differences should be noted:

(2) by subjects of relations: in IPP the subjects are states, and in IPP - individuals and legal entities, although the state can sometimes act as a subject of IPP;

(3) by sources of law: in IPP – an international treaty, and in IPP, the rules of an international treaty are not applied directly, but only after sanction by the state.

Conflict of laws and the general method of private law.

A conflict of law (the term comes from the Latin word collisio - collision) in international private law is a conflict between the material norms of national law (civil, family, labor, etc.) of different states. The resolution of this conflict is a prerequisite for the legal regulation of private law relations complicated by a foreign element. The emergence of a conflict of law is due to the fact that

(1) the presence of a foreign element connects it with the substantive law of not one state, but several; (2) the substantive law of different states sometimes differs significantly in its content. This means that in the presence of a conflict of law, the same factual circumstances may be given a different legal assessment, and as a result, different decisions may be made on the same case.

For example, in 1979, the MAK at the USSR Chamber of Commerce and Industry considered a dispute related to

collision of sea vessels in Finnish territorial waters. The foreign plaintiff raised the question of the application of the substantive law of Finland to the limitation of liability of the shipowner, citing Article 126/4 of the Fundamentals of Civil Legislation of the USSR and s.r. and Article 566/4 of the Civil Code of the RSFSR, which provide for the application of the law of the country where the harm occurred. However, the IAC rejected this requirement, citing the fact that Article 14 of the USSR Code of Labor and Trade “has in this case priority over the aforementioned general conflict of laws rules of Soviet law, since it was established, firstly, specifically for relations related to merchant shipping, and not for any property relations; secondly, specifically to limit the liability of the shipowner, and not in general for obligations arising from causing harm.”

Paragraph 8 of Article 14 of the USSR Code of Labor Code in force at that time provided for the application of the Code of Labor Code rules to “shipowners whose ships sail under the state flag of the USSR” regarding the limitation of liability. Article 426 of the 1999 Code of Labor Code of the Russian Federation also provides that the limits of the shipowner's liability are determined by the law of the ship's flag state. Thus, a conflict of law in private law can be defined as, due to the specifics of a private law relationship complicated by a foreign element, the objective possibility of applying the substantive law of two or more states to a given legal relationship, which can lead to different results and different solutions to emerging issues.

The main task of private law is to overcome conflicts of law, and this issue is resolved using the general method of private law, which is a set of techniques, methods and means of legal influence aimed at overcoming conflicts of law of different states. The specificity of private law is due to the uniqueness of the object of regulation - private law relations, complicated by a foreign element.

The general method of private law is characterized by the autonomy and equality of the parties to private law relations and provides for the principles of independence and autonomy of the parties, protection of private property, and freedom of contract. At the same time, this method is also aimed at overcoming conflicts of law of different states. It combines two special methods of regulation: conflict of law and substantive law, which make it possible to resolve the issue of a conflict of international private law that has arisen.

International private law norms.

1.1. Concept and subject of private international law

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

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

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

In Russian legislation, the foreign element in a civil legal relationship is determined by clause 1 of Art. 1186 Civil Code. Unfortunately, there are quite a lot of gaps in this definition: a foreign state and an international organization are not named as a foreign entity; a legal fact that took place abroad is not highlighted as one of the variants of the foreign element.

True, in Art. 1186 of the Civil Code refers to civil relations complicated by “another foreign element.” By the way, this phrase fills the noted gaps, but due to its vague nature it can lead to a broad interpretation of the legal norm.

Private international law is a complex branch of law and jurisprudence. Private international law is most closely related to national private (civil, commercial, family and labor) law. At the same time, its norms have a dual and paradoxical character, since private international law is very closely related to IPP. Private international law will not be a branch of PIL, but the distinction between them is not absolute. This is due, first of all, to the fact that private international law regulates relations arising specifically from international communication.
It is worth noting that the main principles of ILP (mainly its generally recognized principles and norms) have direct effect in private international law.

1.2. The place of private international law in the legal system

Private international law occupies a special place in the global legal system. Its main specificity is essentially that private international law is a branch of national law, one of the private law branches of the law of any state (Russian private international law, French private international law, etc.) It is worth noting that it is included in a system of national private law along with civil, trade, commercial, family and labor. The concept of “international” here has a completely different character than in IPP, it means only one thing: in a civil legal relationship there is a foreign element (in this case, it does not matter, one or more, and which version of the foreign element) At the same time, private international law represents constitutes a very specific subsystem of the national law of individual states.

The special nature and paradoxical nature of its norms are expressed in the very term “domestic international private law”. At first glance, this terminology seems absurd. There cannot be a branch of law that is both domestic (national) and international. In fact, there is nothing absurd here. We are simply talking about a legal system designed to regulate directly international relations of a non-state nature (arising in private life). The paradoxical nature of the norms of private international law is also expressed in the fact that one of its main sources is directly the IPP, which plays an extremely important role in the formation of national international private law. It is customary to talk about the dual nature of the norms and sources of private international law. Indeed, this is perhaps the only branch of national law in which MPP acts as a direct source and has a direct effect. This is why the definition of “hybrid in jurisprudence” is quite applicable to private law.

The basic (general) principles of private international law can be considered those indicated in paragraph “c” of Art. 38 of the Statute of the International Court of Justice “general principles of law proper to civilized nations.” General principles of law are generally recognized legal postulates, techniques of legal technology, “legal maxims” developed by the jurists of Ancient Rome. Let us list the general principles of law that are directly applied in private international law: you cannot transfer to another more rights than you yourself have; principles of justice and good conscience; principles of non-abuse of law and protection of acquired rights, etc. “Civilized nations” mean those states whose legal systems are based on adopted Roman law. The main general principle of private international law (as well as national civil and public international law) will be the principle of “pacta sunt servanda” (contracts must be respected) Special principles of private international law:

autonomy of the will of the participants in a legal relationship is the main special principle of international private law (as well as any other branch of national private law). Autonomy of will underlies all private law as a whole (the principle of the freedom of contracts; the freedom to have subjective rights or renounce them; the freedom to apply to government agencies for their protection or tolerate violations of their rights);
the principle of providing certain regimes: national, special (preferential or negative), most favored nation treatment. National and special regimes are mainly provided to foreign individuals; most favored nation treatment – to foreign legal entities (although this provision will not be mandatory and legal entities can enjoy national treatment, and individuals – most favored nation treatment);
principle of reciprocity. In private international law, there are two types of reciprocity - material and conflict of laws. Problems of conflict of law reciprocity (or reciprocity in the broad sense of the word) relate to conflict of law and will be discussed below. Material reciprocity, in turn, is divided into actual material (providing foreign persons with the same amount of specific rights and powers that national persons enjoy in the foreign state) and formal (providing foreign persons with all rights and powers arising from local legislation). As a general rule, it is granted namely formal reciprocity, but in certain areas - copyright and invention law, avoidance of double taxation - it is customary to provide material reciprocity;
principle of non-discrimination. Discrimination is a violation or restriction of the legal rights and interests of foreign persons on the territory of any state. The generally accepted norm of private law in all states is the absolute inadmissibility of discrimination in private law;
right to retortion. Retorsions are legitimate retaliatory measures (restrictions) of one state against another if the legitimate rights and interests of individuals and legal entities of the first state are violated on the territory of the latter. The purpose of retortion is to achieve the abolition of discriminatory policies - Art. 1194 Civil Code.

1.3. The normative structure of private international law

The normative structure of private international law is highly complex. This branch of law consists of norms that differ in their nature, nature and structure. They can be classified as follows: conflict of laws (from the Latin collision - collision, conflict) and substantive rules. Conflict of laws (reference) rules are unique in their nature and are found only in private international law. No other branch of law has even an analogue of such rules. Their sources are national legislation (internal conflict of law rules) and international treaties (unified or contractual conflict of law rules). The system of international treaties containing unified conflict of law rules can be conditionally designated as a set of conventions on “applicable law”. Unified conflict of law rules are exclusively of contractual origin (usual international conflict of law rules do not exist)

In the normative structure of private international law, conflict of law rules play a fundamental role. By the way, this branch of law arose and developed precisely as conflict of law. For a long time (almost until the middle of the 20th century), private international law was defined exclusively as a set of conflict of laws rules. The understanding of private international law exclusively as conflict of law has been preserved in the modern world - the American doctrine of “conflict” law, the legislation of a number of European states (for example, Switzerland and Austria), resolutions of the Institute of International Law.

Today it is almost universally accepted that the normative structure of private international law is not limited to conflict of laws rules. Private international law also includes substantive legal norms – international (unified) and national. Unified substantive rules occupy a very important place in the normative structure of private international law. Their sources are international treaties and customs, ICP. Unified substantive legal norms are of a public legal nature (they are created by states - government entities) and represent the end result of the process of coordinating the will of two or more states.

It must be remembered that such norms are called conciliatory, coordination. Unified substantive rules can be directly applied to regulate private security with a foreign element (Article 7 of the Civil Code). It is worth saying that for this purpose they must be implemented into domestic legislation. The implementation of the norms of the majority of international treaties governing private law into national law is carried out through the ratification of the current international agreement (if it requires ratification) or through its signing (and the subsequent publication of certain internal legal acts introducing the norms of the treaty into the national legal system)

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

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

In addition to unified substantive norms, substantive norms of national law in private international law will also be part of the normative structure of private international law. True, this position in the doctrine of law will not be generally recognized. Many scholars believe that national substantive rules cannot be included in the structure of private international law. At the same time, most authors (including Russian ones) express the opposite point of view - the substantive norms of national law are included in the normative structure of private international law. By the way, this concept seems to be the most correct and in line with modern trends in the development of regulation of international civil relations.

The substantive norms of national law from the perspective of private international law can be divided into three groups: general norms governing any legal relationship - both those with a foreign element and those without such an element (Article 11 of the Labor Code); “specially national” norms regulating relations only between citizens of a given state on its territory, i.e. relations not burdened by a foreign element (Article 33 of the Constitution); “specially foreign” norms regulating only certain relations, necessarily burdened with a foreign element (Federal Law of 07/09/1999 No. 160-FZ “On Foreign Investments in the Russian Federation” (as amended on 12/08/2003); clause 4 of Art. 124 SK) Of all domestic substantive legal norms, it is specifically foreign norms that are included in the structure of private international law.

It must be remembered that such norms do not regulate the entire range of civil legal relations, but some part of them, a certain range of issues. The source of specifically foreign norms is national law, i.e., the creation of one powerful legislator. Moreover, these norms are specifically designed to regulate relations arising in the international sphere. In domestic law, specifically foreign norms, as well as implemented international norms, form a separate, independent normative group.
It is worth noting that the peculiarity of the norms under consideration is a special subject of regulation (only relations burdened with a foreign element) and a special special subject (foreign persons or persons of local law entering into relations in which I have a foreign element).

A fairly wide range of relations in the field of private international law are regulated precisely with the help of substantive norms of national law. Very often, PPOs with a foreign element do not give rise to conflict of law issues and problems of choice of law. This is exactly the situation that traditionally develops in cases where national legislation contains detailed substantive regulation of a large-scale range of relations related to international communication.

1.4. Methods of regulation in private international law

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

The conflict of laws method is a method of resolving conflicts between the laws of different states. In private international law, there is the concept of “collegding” (conflicting) laws. The legal systems of different states regulate the same problems of private law in different ways (the concept of legal personality of individuals and legal entities, types of legal entities and the procedure for their formation, form of transaction, statute of limitations, etc.) It is worth saying that for the correct resolution of civil law In a dispute aggravated by a foreign element, the choice of legislation is of great importance. A legally sound solution to the question of which state’s law should govern a given international civil legal relationship helps eliminate conflicts of legal systems and facilitates the process of recognition and enforcement of foreign court decisions.

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

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

Let us note the fact that in modern international communication the importance of unified substantive legal norms is increasing and, in particular, the role of the substantive legal method of regulation (this method is also called the method of direct prescriptions). The substantive legal method is based on the application of substantive norms that directly regulate rights and responsibilities of the parties formulating the behavior model. This method will be direct (immediate) - the rule of conduct is specifically formulated in a substantive legal norm. The sources of the material method are international law and national laws specifically devoted to the regulation of private enterprises with a foreign element.

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

At the same time, when resolving private law disputes with a foreign element, the conflict of laws method of regulation continues to dominate in the practice of courts and arbitrations. This is explained primarily by the fact that most states generally recognize and execute on their territory the decisions of foreign courts, if such decisions are based on the national law of a given state, i.e., when deciding on the applicable law, the foreign court chose the law of the particular state in question. whose territory the judgment must be recognized and executed. The conflict of law method continues to play a major role in private international law.

PIL is traditionally recognized independent branch of law that relates to private law industries. That. its subject is private relations, i.e. relations between individuals. But such relations are regulated by the norms of other private law branches of law (GP, JV). That. an indication of the private nature of the relationship does not yet allow us to identify the specifics of the subject of regulation of private private enterprise and, accordingly, to distinguish it from other private industries. This allows you to indicate the second feature of the object. The doctrine of private international law includes relationships between individuals that develop in international private life or in international civil relations .

The norms of this industry regulate property, personal non-property relations, both related and not related to property relations, as well as family and labor relations with the participation of the so-called foreign element, based on the equal legal status of the subjects of relations.

PIL of a particular state, including the Russian Federation, regulates such relations that, without being complicated by a foreign element, would be regulated by the norms of other branches of private law. The presence of a foreign element gives the subject of PIL.

MPP, unlike private law, regulates, first of all, interstate political relations, and private law regulates relations purely between individuals, although states can also be a party to international private law relations. MPP can also regulate the so-called international economic relations, but unlike PIL, these are the relations that develop between states (regulated by the section PIL - PIL).

The importance of private law in property turnover: when a legal dispute arises, the question arises of which jurisdictional body will consider it and the question of what law will be applied (for example: IDA, recognition of a foreign court decision).

When characterizing the subject of PIL and its place in the legal system, one must keep in mind what is meant by the term “international” in relation to the concept of PIL. The very name of private law can lead to the conclusion that this is a supranational (supranational) law for all states.

ILP is considered international in the sense that it regulates relations between states. In contrast to this PIL is recognized as international, since it regulates the relationship between private individuals, but belonging to different states, and relationships go beyond one legal system.

Legal norms that are designed to regulate such relations exist in all legal systems (of all states). Therefore, MPP is part of domestic national law any state, part of the national legal system. Every state has its own private law. The norms of this industry are contained in special legal sources.

That. to the state applies in the field of regulation civil relations with a foreign element are not the same rules of private law, which would be common to all states, but your national private private enterprise, behind except cases of using unified standards international treaties and general principles of international law.

b) Criteria for the presence of a foreign element in legal relations

Defining criteria is very important from practical point of view points of view, since they make it possible to attribute a specific legal relationship to the subject of regulation of international private law and relevant legal norms.

Criteria:

presence in legal relations of a foreign subject(foreign citizens, legal entities and, in certain cases, foreign states);

objects the legal relationship in connection with which this legal relationship exists is located abroad, in a foreign country. Such a legal relationship is considered complicated by a foreign element even when all participants in this legal relationship belong to one state.

For example: inheritance legal relationship: when the property is located in a foreign state, and the heirs (subjects of the inheritance legal relationship) are citizens of another state (states) or live there.

3. legal facts that underlie the emergence, change and termination of private law relations that took place or are taking place in a foreign country.

For example: conclusion of a contract, death of an individual, causing harm.

One is enough criteria for considering legal relations complicated foreign element.

A COMMON PART

Topic 1. CONCEPT AND SYSTEM OF INTERNATIONAL PRIVATE LAW

1.1. Concept and subject of private international law

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

International private law is an independent, complex branch of law that combines the norms of international and national law and regulates international civil relations. The subject of regulation of international private law is private law aggravated by a foreign element. The foreign element can manifest itself in three ways:

1) subject of a legal relationship - a foreign person, a foreigner (foreign citizen, stateless person, bistate person, refugee; foreign legal entity, enterprise with foreign investments, international legal entity, TNC; international intergovernmental and non-governmental organizations; foreign state);

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

3) the legal fact with which the legal relationship is connected takes place abroad.

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

International private law is a complex branch of law and jurisprudence. PIL is most closely related to national private (civil, commercial, family and labor) law. At the same time, its norms have a dual and paradoxical character, since PIL is very closely related to MPP. Private private partnership is not a branch of small business enterprise, but their distinction is not absolute. This is caused, first of all, by the fact that private law regulates relations arising specifically from international communication. The main principles of ILP (mainly its generally accepted principles and norms) have direct effect in ILP.

1.2. The place of private international law in the legal system

1.3. The normative structure of private international law

The regulatory structure of international private law is highly complex. This branch of law consists of norms that are different in nature, nature and structure. They can be classified as follows: conflict of laws (from the Latin collision - collision, conflict) and substantive rules. Conflict of laws (referential) rules are unique in nature and are found only in international private law. No other branch of law has even an analogue of such rules. Their sources are national legislation (internal conflict of law rules) and international treaties (unified or contractual conflict of law rules). The system of international treaties containing unified conflict of laws rules can be conditionally designated as a set of conventions on “applicable law”. Unified conflict of law rules are exclusively of contractual origin (usual international conflict of law rules do not exist).

In the regulatory structure of international private law, conflict of laws rules play a fundamental role. This branch of law arose and developed precisely as conflict of law. For a long time (almost until the middle of the 20th century), private law was defined exclusively as a set of conflict of laws rules. The understanding of international private law exclusively as a conflict of laws law has been preserved in the modern world - the American doctrine of “conflict” law, the legislation of a number of European states (for example, Switzerland and Austria), resolutions of the Institute of International Law.

At present, it is almost universally accepted that the regulatory structure of international private law is not limited to conflict of law rules. PIL also includes substantive legal norms – international (unified) and national. Unified substantive rules occupy a very important place in the regulatory structure of international private law. Their sources are international treaties and customs, ICP. Unified substantive legal norms are of a public legal nature (they are created by states - government entities) and represent the end result of the process of coordinating the will of two or more states.

Such norms are called conciliatory, coordination. Unified substantive rules can be directly applied to regulate private enterprises with a foreign element (Article 7 of the Civil Code). To do this, they must be implemented into domestic legislation. The implementation of the norms of most international treaties governing private legal acts into national law is carried out through the ratification of the relevant international agreement (if it requires ratification) or through its signing (and the subsequent publication of certain internal legal acts introducing the norms of the treaty into the national legal system).

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

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

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

The substantive norms of national law from the point of view of international private law can be divided into three groups: general norms governing any legal relationship - both those containing a foreign element and those without such an element (Article 11 of the Labor Code); “specially national” norms regulating relations only between citizens of a given state on its territory, i.e. relations not burdened by a foreign element (Article 33 of the Constitution); “specially foreign” norms regulating only certain relations, necessarily burdened with a foreign element (Federal Law of 07/09/1999 No. 160-FZ “On Foreign Investments in the Russian Federation” (as amended on 12/08/2003); clause 4 of Art. 124 SK). Of all domestic substantive legal norms, it is specifically foreign norms that are included in the structure of international private law.

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

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

1.4. Methods of regulation in private international law

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

The conflict of laws method is a method of resolving conflicts between the laws of different states. In private law there is the concept of “collegding” (colliding) laws. The legal systems of different states regulate the same problems of private law differently (the concept of legal personality of individuals and legal entities, types of legal entities and the procedure for their formation, form of transaction, statute of limitations, etc.). For the correct resolution of a civil dispute aggravated by a foreign element, the choice of legislation is of great importance. A legally sound solution to the question of which state’s law should govern a given international civil legal relationship helps eliminate conflicts of legal systems and facilitates the process of recognition and enforcement of foreign court decisions.

The conflict of laws method is a referential, indirect, indirect method based on the application of conflict of laws rules. The court first of all selects the applicable law (resolves the conflict of laws issue) and only after that applies the substantive rules of the chosen legal system. When applying the conflict of laws method, the rule of behavior and the model of dispute resolution are determined by the sum of two rules - conflict of laws and substantive law, to which the conflict of laws refers. The methods of the conflict of laws method are internal (using the rules of national conflict of laws) and unified (through the application of the rules of international treaties “on the applicable law” and conflict of laws rules of complex international agreements). The conflict of laws method is considered the primary and fundamental method in international private law, since the basis of international private law itself is precisely the conflict of laws rules.

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

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

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

However, until now, when resolving private law disputes with a foreign element, the conflict of laws method of regulation continues to dominate in the practice of courts and arbitrations. This is explained primarily by the fact that most states generally recognize and execute on their territory decisions of foreign courts if such decisions are based on the national law of a given state, i.e., when deciding the issue of applicable law, the foreign court chose the law of the particular state in question. whose territory the judgment must be recognized and executed. The conflict method continues to play a major role in private law.

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

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

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

By analogy with national law, it can be argued that the source of international private law is international law as a whole. The system of international legal sources of international private law includes international treaties, international legal customs and the system of non-state regulation of foreign trade activities (ICP). Of all the international legal sources of international private law, the main significance belongs to international treaties. In addition, we must not forget that generally recognized norms and principles of international law are part of the legal system of most states and have primacy over the norms of national law in case of conflict (Article 15 of the Constitution and Article 7 of the Civil Code).

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

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

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

In the legislation of the Russian Federation regulating relations in the field of private private partnership, it is necessary to highlight: Civil Code, Civil Procedure Code, AIC, TC, SK, NK, VK, KTM, Customs Code, Fundamentals of legislation on notaries, approved by the Supreme Council of the Russian Federation on February 11, 1993 No. 3517-1 (in ed. dated 08.12.2003), Law of the Russian Federation dated 07.07.1993 No. 5338-1 “On International Commercial Arbitration”. By-laws, departmental instructions, non-normative acts of ministries and departments of the Russian Federation are also sources of Russian private law. Of course, all of the listed legislation, as well as by-laws and departmental instructions, in general cannot be considered sources of Russian private law. We are talking about the individual norms, chapters and sections contained therein, specifically devoted to the regulation of private enterprises with a foreign element.

There is no separate law on private international law in Russian law, although a draft of such a law at the doctrinal level was prepared already in the 80s. XX century Unfortunately, it was not possible to completely codify Russian private law; a special law on private private law was not considered even at the draft level. In Russian law, intersectoral codification has been carried out: the Civil Code, SK, KTM, Civil Procedure Code and Arbitration Procedure Code include special chapters and sections regulating private law with a foreign element. The main sources of Russian private law – sect. VI Civil Code, section. VII SC, ch. XXVI KTM, section. V Code of Civil Procedure, Ch. 31–33 APC. The main source is Sect. VI of part three of the Civil Code, since the provisions of civil law can be applied by analogy to all private security situations not regulated by special legislation (Article 4 of the Civil Code). Of particular importance is Ch. Section 66 VI of Part Three of the Civil Code, which contains general provisions for the application of foreign law on the territory of the Russian Federation and establishes general principles for regulating all private legal acts with a foreign element.

Despite the fact that cross-sectoral codification of Russian private law was undertaken quite recently (1995–2003), a large number of gaps and other serious shortcomings have already been identified in all legislative acts in this area. In principle, at the current stage of development of international civil relations in the Russian Federation, a separate special law should be adopted that would regulate the entire range of relations in the field of international private law. Full-scale codification of private law has advantages compared to intersectoral codification: fewer gaps, absence of “mutual references” and the need to apply various regulations, fewer grounds for applying the analogy of law and law.

International legal sources of international private law are international treaty, international custom, and international law.

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

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

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

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

International legal custom. As a source of ILP, international legal custom is defined in the Statute of the International Court of Justice. Custom is a general practice recognized as a legal norm. In order for a practice to acquire the character of a customary rule of law, duration, regularity, stability and repetition of its application are necessary. In addition, such practices must be officially recognized as a rule of law. Custom is considered an oral form of sources of law. This, however, does not mean the absence of written recording of international legal customs. On the contrary, all customs (both national legal and international) are almost always enshrined in written form. The fact that this source of law is considered oral means that customs are recorded in non-normative acts (judicial practice, diplomatic correspondence, private unofficial codifications).

In international private law, the most important role is played by international trade customs, customs of business turnover and merchant shipping. In foreign trade, types of ordinary transactions have been developed, based on a unified interpretation of stable trade, business and banking terms. The ICC in Paris has produced several private unofficial codifications of international customs: the Warsaw-Oxford rules for transactions on CIF terms, the York-Antwerp rules on general average (last edition 1994), INCOTERMS-2000, the Uniform rules for documentary letters of credit and collection, etc. All these acts do not have a normative nature and are not sources of law. It is simply a record, a written recording of ordinary rules of law. The source of law here is each individual rule of conduct, a separate type of transaction. International custom is recognized as a source of law in Russian legislation (Article 5 and paragraph 6 of Article 1211 of the Civil Code).

International commercial law. The concept of “lex mercatoria” (ITC, transnational trade law, law of the international community of merchants) appeared in law relatively recently. From the middle of the 20th century. MCP is usually understood as a system of non-state regulation of foreign trade activities. This system is also defined as soft flexible law, the norms of which are advisory in nature (participants in legal relations are not bound by mandatory state regulations). Adjacent to the concept of MCP are the concepts of quasi-international law and TNC law. The advantages of the ICP compared to national legislation and international treaties lie precisely in providing participants in international trade with maximum freedom of action. The basis of the lex mercatoria is the resolutions and recommendations of international organizations on foreign trade issues (general conditions of supply, form agreements, accession agreements, standard contracts, standard regulations).

In the system of non-state regulation of foreign trade, special mention should be made of: general conditions of supply developed by the UN Economic Commission for Europe; Inland Transport Commission standards; ICAO and IMO standards and recommendations; international model patent developed by INPADOC. The Russian legal doctrine did not recognize the International Communist Party until the end of the 80s. XX century (due to the state monopoly in foreign trade). Only in the early 1990s. The lex mercatoria was recognized in Russian legal science as part of the international law and a source of international private law.

In many foreign countries, judicial and arbitration practice as a source of international private law plays a more important role than national legislation and international law (France, Great Britain, USA). Judicial and arbitration practice, which serves as a source of law, refers to decisions of courts (usually higher authorities) that have a law-making nature - they formulate new rules of law. It must be borne in mind that the law-making role of courts and arbitrations is not to create new rules of law (courts do not have legislative powers and cannot “create” law), but to identify the current (positive) law and formulate it as a system of legally binding regulations. In principle, the court only fixes a certain rule of behavior, which in society is regarded as mandatory.

Anglo-American law is, in principle, based on a system of judicial precedents, which in these countries play the role of the main source of law (including private international law). Judicial precedent can be defined as follows - this is a decision of a higher court, which is imperative and decisive for lower courts when they resolve similar cases in the future. No court decision automatically becomes a precedent; it must receive precedent status in the manner prescribed by law. Judicial precedent, as a decision that has a guiding value in resolving similar cases in the future, is used in almost all states, but only in countries with a common legal system there is a comprehensive case law.

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

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

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

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

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

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

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

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

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

Autonomy of will as a source of law lies in the ability of the subjects of the contract to choose any model of behavior, unknown to anyone, untested by anyone, completely new for a given legal system. At the same time, the autonomy of the will is not unlimited: any national legislator sets its limits - private agreements should not violate state government regulations (including imperative norms of private law). The model of behavior chosen by the parties is strictly obligatory for the parties to the relationship themselves and for all government bodies (primarily courts and arbitrations). In all legal systems, the autonomy of the will is assessed as private law (lex privata).

Essentially, the autonomy of the will as a source of Russian law of obligations is enshrined in Art. 421 Civil Code. The parties have the right to enter into any contractual relationship, including those not provided for in the Civil Code, and to enter into mixed agreements (agreements containing elements of several independent contracts). However, the autonomy of the will is not identified by the Russian legislator as an independent source of law, which contradicts both the provisions of domestic legislation and practice. In Russian private law, from a formal legal point of view, the autonomy of the will is assessed as follows: it is not a source of law, but only one of the conflict of laws links (Article 1210 of the Civil Code). This assessment absolutely does not correspond to the true state of affairs, is completely outdated and requires urgent revision.

Topic 3. CONFLICTS OF LAW – CENTRAL PART AND SUBSYSTEM OF PRIVATE INTERNATIONAL LAW

3.1. Basic principles of conflict of laws

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

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

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

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

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

3.2. Conflict of laws rule, its structure and features

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

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

The conflict of laws link, in essence, solves the main problem of international private law: it is the link that contains the answer to the conflict of laws question, the law of which state should resolve this legal relationship. It is the conflict of laws link that contains some objective criterion that allows us to resolve the issue of applicable law. Binding is the main element of the conflict of laws rule. It is abstract in nature, referring not to a specific law or a specific legal act, but to the legal system as a whole, to the entire legal order of any state. Collision binding is often called the "attachment formula". However, this term does not apply to all conflict of law provisions, but only to those that provide for the possibility of applying foreign law, and not just the law of the country of the forum. An indication of the possibility of applying foreign law should be expressed in the most general way, by establishing a conflict of laws rule.

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

3.3. Types of conflict of laws rules

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

1. The way of expressing the will of the legislator is imperative, alternative and dispositive conflict of laws rules. In imperative norms there can be only one conflict of law link (any one, except for the autonomy of the will and its derivative links - the criterion of real connection, the law of the essence of the relationship and the proper law of the contract). A mandatory conflict of laws rule is an authoritative instruction of the legislator to apply the law of only one specific state, established on the basis of some objective criterion (Article 1200, paragraph 1 of Article 1202, Article 1205, paragraph 3 of Article 1206, Article 1207 GK).

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

Dispositive rules, as the main conflict of laws provisions, provide for the autonomy of the will of the parties (the right to choose the applicable legislation by the parties to the relationship themselves in accordance with Article 1210 of the Civil Code). Terminologically, the right of the parties to autonomy of will can be expressed in different ways: “unless otherwise provided by the contract,” “unless the parties have agreed otherwise,” “by the law chosen by the parties.” In modern private law there is a tendency towards transformation of the autonomy of the will. A large number of new conflict of laws rules have emerged, derived from the right of the parties to choose the applicable law themselves: the law inherent in the given agreement; own contract law; the law of the essence of relationship; criterion of the closest connection.

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

2. Form of conflict of laws – bilateral and unilateral conflict of laws rules. Unilateral - provide for the possibility of applying only one’s own national law, the law of the country of the forum (Article 424 of the Code of Labor Code): “The law of the state in whose court the case is being heard is applied to the emergence of a maritime lien on a ship.” Such norms are imperative in nature. In Russian legislation, there is a tendency to replace the classic conflict of laws rule “law of the court” with the expression “Russian law applies” (clause 3 of Article 1197, clause 3 of Article 1199, Article 1200 of the Civil Code, clause 1 of Article 16 °CK).

Bilateral conflict of law rules provide for the possibility of applying both national and foreign or international law. Such norms can be imperative, alternative and dispositive (clause 1 of Article 1197, Article 1201, clause 1 of Article 1211 of the Civil Code, respectively) in nature. In modern law, there are much more bilateral conflict of laws rules than unilateral ones. The conflict of laws rule “law of the court” is considered “hard” law, and currently the legislation of all states seeks to establish “soft, flexible” legal regulation, which is possible only through the use of bilateral conflict of laws rules (especially dispositive ones). It is the binding of the bilateral conflict of laws rule that is called the attachment formula.

3. Legal form (source of law) – national legal (domestic – section VI of part three of the Civil Code) and unified international legal (contractual – Hague Convention on the Law Applicable to Contracts for the International Sale of Goods of 1986) conflict of laws rules. Naturally, internal conflict of laws rules have primary application. The specificity of unified conflict of laws rules lies in the fact that these are uniform conflict of laws rules created on the basis of international agreements and representing the end result of the process of coordinating the will of states. Unified conflict of laws rules in the national legal system act as rules of internal law (in accordance with Article 15 of the Constitution, Article 7 of the Civil Code) and in their legal nature are no different from them. However, unified rules always maintain a connection with the international treaty that gave rise to them and, as a result, do not merge with internal conflict of laws rules, exist in parallel with them and have features associated with their contractual origin.

4. The meaning of conflict of laws rules – general (main) and subsidiary (additional) conflict of laws links; general and special conflict bindings. General conflict of law links establish the law that is applicable in the first place (“main” law), for example, para. 1 clause 1 art. 1223, paragraph 3 of Art. 1199 Civil Code. Subsidiary conflict of law rules establish “additional law”, applicable only in certain circumstances (as a rule, if for some reason the “main” law cannot be applied) - clause 3 of Art. 1199, art. 1201 Civil Code.

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

3.4. Basic types of collision bindings

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

1. Personal law of an individual. Depending on the state’s affiliation with a particular legal system, the personal law of an individual is understood in two versions: as the law of citizenship in continental law and as the law of domicile (place of residence) in common law. The legal status of a person according to the law of citizenship is determined by the legislation of the state whose citizenship the person has, and according to the law of domicile - according to the legislation of the state in whose territory the person resides. In modern law, there is a desire by states to maximize their jurisdiction: in most legal systems, a combination of the laws of citizenship and domicile is used to determine the personal law of an individual.

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

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

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

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

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

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

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

3. The law of the location of a thing. This is one of the oldest conflict of laws links, which determines the property law statute of legal relations (Article 1205 of the Civil Code). In modern law, there is a tendency to change the scope of application of this attachment formula (previously it was applied mainly to real estate, and currently to movable property). From the point of view of modern world practice, the law of the location of a thing determines the legal status of both movable and immovable things (clause 2 of Article 1205 of the Civil Code). Exceptions to this rule: if real rights completely arose on the territory of one state, and the thing was subsequently moved to the territory of another, then the very emergence of ownership rights is determined by the law of the place where the property was acquired, and not by the law of its actual location; the legal status of things entered into the state register is determined by the law of this particular state, regardless of the actual location of the thing (Article 1207 of the Civil Code).

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

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

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

It is possible to apply autonomy of will to a contract regarding real estate. The parties themselves can choose the applicable law, regardless of where exactly the property is located. This provision represents a novelty of modern private law and is associated with the expansion of the application of autonomy of will to all contractual relations. A similar provision exists in Russian law (Article 1213 of the Civil Code).

4. Law of the seller's country. This is a general subsidiary conflict of laws link for all foreign trade transactions. The law of the seller's country is understood in a broad and narrow sense. Understanding in a narrow sense means the application to a sales contract of the law of the state on whose territory the seller’s place of residence or main place of business is located.

The law of the seller's country in a broad sense means that the law of the state in whose territory the place of residence or principal place of business of the party performing the performance crucial to the content of the contract is located. The central party in the purchase and sale agreement is the seller. A purchase and sale transaction is the main foreign trade transaction. All other foreign trade transactions are constructed according to the model of a purchase and sale agreement; accordingly, the central party in other transactions is determined by the analogy of “the seller is the central party in the purchase and sale agreement.”

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

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

As a general rule, the law of the place where the act was performed regulates the formal statute of the legal relationship, that is, the procedure for signing and the form of the transaction. This provision is enshrined in Art. 1209 Civil Code. However, the provisions of Russian legislation on this issue are of a unique nature. If, according to the law of the place where it was concluded, a transaction is invalid in terms of form, such a transaction cannot be considered invalid in the Russian Federation if it complies with the requirements of Russian law. This norm is imperative in nature, which only aggravates the defects of this approach. Article 1209 of the Civil Code is a source of “limping” relations: in Russia, a legal relationship gives rise to legal consequences, but in the state in whose territory it arose, it does not. In addition, paragraph 2 of Art. 1209 of the Civil Code establishes the primacy of Russian law in regulating the formal statute of a transaction in which a Russian legal entity is a party. The form of such a transaction is subject to Russian law, regardless of the place of its execution.

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

The law of the place where the contract was concluded (performed) regulates the obligations of the parties arising from private law contracts. The trend in modern practice is to abandon the application of this attachment formula due to the widespread use of contracts between absentees. In addition, the concept of the place of conclusion of a contract in the continental and Anglo-American legal systems is fundamentally different. The common law applies the “postbox theory”: the place of conclusion of the transaction is the place where the acceptance is sent. Continental law (and the Vienna Convention on the International Sale of Goods 1980) enshrines the “doctrine of receipt”: the place of conclusion of the transaction is the place of receipt of acceptance. Such positions are absolutely incompatible and lead to the fact that, from the point of view of different legal systems, the contract simultaneously has two places of conclusion (the place where the acceptance was sent and the place where it was received).

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

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

6. The law of the place where the offense (tort) was committed. This is one of the oldest conflict of laws principles used to regulate tortious obligations and determine the tortious statute of a legal relationship (Article 1220 of the Civil Code). Issues of the tort statute in the law of different states have fundamentally different solutions - different ages of tort liability, grounds for liability, its limitations and exemptions from it, methods of compensation for harm, the volume and amount of compensation. Moreover, there are significant differences in the understanding of the very place where the offense was committed: this is the place where the harmful act was committed (Italy, Greece); place of occurrence of harmful consequences (France, USA - the concept of “acquired rights”); a combination of both principles is possible (Germany).

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

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

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

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

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

In modern practice and doctrine, it is generally accepted that the law of the court is a “hard” conflict of laws binding; one should strive to avoid its application as much as possible. The generally accepted scope of the law of the court is IHL. From the standpoint of the classical understanding, the law of the court in IHL is not a conflict of laws rule, but one of the basic procedural principles (the court applies only its procedural law).

9. Flag law. This conflict of laws principle is a transformation of the “personal law” binding in relation to aircraft and water vessels and space objects. The legal status of such objects is regulated by the law of the state whose flag is flown by the aircraft or vessel. The main area of application of flag law is international sea and air transport, merchant shipping and navigation. In the KTM, a large number of rules are built on the basis of this conflict of laws, for example: the right of ownership and other proprietary rights to sea vessels (Article 415), the legal status of crew members (Article 416), the right to property located on a sunken ship on the high seas (Article 417), limits of liability of the shipowner (Article 426).

10. The law chosen by the parties to the legal relationship (autonomy of will, right of choice of law by the parties, clause on the applicable law). This is the main conflict of law link for all contractual obligations (foreign trade transactions, transportation agreement, marriage contract, employment contract). All over the world, autonomy of will is considered the most “flexible” conflict of laws rule. Autonomy of will presupposes the dispositive nature of the conflict of laws rule, maximum freedom of the parties to choose a model of behavior (including regarding the choice of legislation).

Autonomy of will applies only to the obligatory statute of legal relations. In the legislation of many countries (USA, Scandinavian countries, Germany), the territorial limits of autonomy of will are limited. The parties can choose only in favor of the legal system with which the legal relationship is actually connected. Most countries provide for the possibility of an unlimited choice of law by the parties; the choice of the law of a “neutral” state (with which the transaction is in no way connected) is even encouraged. It is presumed that the choice of such a law a priori puts the parties in an equal position. Russian legislation enshrines precisely this position (Article 1210 of the Civil Code).

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

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

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

New attachment formulas in modern law (derived from the “implied” will of the parties) – the law with which the relationship is most closely connected (the principle of real connection); the law that applies to the substance of the relationship (the proper law of the contract).

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

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

3.5. Modern problems of conflict of laws

The modern main feature of the development of conflict of laws links is the desire to abandon “hard” conflict of laws rules based on one criterion for the choice of law. To choose the law on one issue, not just one, but a whole system of interconnected conflict of laws rules (“chains” of conflict of law rules) is used - for example, Art. 1199 Civil Code. The main way to choose the law is to use flexible rules that allow you to take into account all the specific circumstances of the case. The legal relationship is divided into statutes, and each statute has independent conflict of laws regulation. In one actual legal relationship there is a whole system of different statutes: personal, property law, obligations, formal, tort, currency, inheritance, marriage, etc. When dividing the legal relationship into statutes, independent law is applied to each individual statute - the law of the state with which the given relationship part of the legal relationship is most closely related. This method of legal regulation involves the use, first of all, of the criterion of the closest connection and the principle of the essence of the relationship.

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

1. Cumulation (combination) of conflict of laws leads to the need to take into account the provisions of several different legal systems when regulating one legal relationship. Cumulative conflict of laws presuppose the simultaneous application of different legal systems: for example, marriage - the form and procedure are determined by the law of the place where the marriage was concluded, and the internal conditions for marriage (marital capacity, obstacles to marriage) - by the personal law of each of the spouses (Article 156 of the Family Code ).

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

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

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

Reciprocity is one of the special principles of private law. In conflict of law there is a special concept of conflict of law reciprocity, which differs significantly from material and formal. Conflict reciprocity is the mutual application of law, that is, a court of one state applies the law of another state only on the condition that the foreign court behaves in the same way. As a general rule, when considering private law disputes with a foreign element, conflict of law reciprocity should not be taken into account. Foreign law is subject to application in national courts regardless of whether the law of a given state is applied abroad, since such application is prescribed by the provisions of national conflict of laws, and not by conflict of law reciprocity. The exception to this rule – the mutual application of law – is directly stipulated in the law. The legislation of most states enshrines the presumption of the existence of conflict of law reciprocity (its presence is assumed, but its absence must be proven). This is precisely the provision established in Art. 1189 Civil Code.

3.6. Qualification of conflict of law rules, its interpretation and application

The application of any legal norm is impossible without its interpretation: establishing its meaning and connection with the factual circumstances in which the norm must be applied. Specific techniques and rules of interpretation may be different, but in any case they must comply with the legal system of the state whose legal norm is interpreted and applied. The results of interpretation should not contradict the basic goals and principles of law and its normative requirements.

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

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

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

The PIL doctrine has developed the following theories for resolving conflicts of qualifications.

1. Qualification according to the law of the court (i.e. according to the national law of the state whose law enforcement agency is considering the case). This is the most common way to resolve qualification conflicts. The conflict of laws rule as a norm of national law uses national legal categories characteristic of a given legal system. The entire legal terminological construction of the conflict of laws rule has the same content as the rule of substantive private law of a given state. Since the conflict of laws issue is resolved on the basis of the conflict of laws of the country of the forum, then the qualification of conflict of laws concepts should be carried out precisely according to the law of the court.

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

2. Qualification according to the law of the state with which the relationship is most closely connected (by the law of the substance of the relationship). This method of qualification allows one to avoid the main disadvantages of qualification according to the law of the court - foreign legal concepts are qualified in their “native” legal categories. However, qualification under foreign law is, as a rule, a secondary qualification, which takes place after the choice of law, when the conflict of laws issue is resolved in favor of the application of foreign law. Therefore, in essence, here we are no longer talking about the qualification of conflict of laws concepts, but about the qualification of legal categories of substantive private law. There is no doubt that when resolving a conflict of laws issue in favor of foreign law, all material legal concepts must be defined precisely in its national categories.

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

2. The theory of “autonomous” qualification is based on the fact that the conflict of laws rule, national in nature, connects domestic law with foreign law, and this circumstance cannot be ignored. To fulfill the role of a connecting link between the legal orders of different states, the conflict of laws rule must use concepts common to all legal systems, which are established with the help of comparative law and generalization of homogeneous civil law concepts. Both the foreign and domestic doctrine of international private law expresses the point of view that the scope of the conflict of laws rule should use legal concepts common to all legal systems, and the qualification of legal categories of conflict of laws should be made in accordance with the law of the court.

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

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

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

The problems of definition, interpretation and application of legal norms are closely related to the conflict of qualifications. If a conflict of laws issue is resolved in favor of the application of a foreign law, then a generally accepted rule applies: foreign law must be interpreted and applied as it is interpreted and applied in its “home” state by the “native” judge. The practical implementation of this rule is perhaps the greatest difficulty in private law. It is unclear to what extent a court of one state, knowing and applying ex officio (ex officio) only its own national law, is able to interpret and apply foreign law in the same way as a court of the corresponding foreign state would apply it.

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

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

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

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

3.7. Limits of application and effect of conflict of laws rules

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

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

Russian legislation uses a negative version of the public order clause. Various legislative acts use quite similar terminology: the fundamentals of law and order (public order) of the Russian Federation (Article 1193 of the Civil Code, Article 167 of the SK), public order of the Russian Federation (Article 244 of the APC), sovereignty, security and public order of the Russian Federation (Article 412 of the Code of Civil Procedure) ).

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

No legislative act contains a definition of the category “public policy”. The doctrine constantly emphasizes the uncertainty and even indefinability (FRG) of this concept. Modern jurisprudence constantly makes attempts to define the category of “public order” by listing the norms that are of a super-imperative nature in national law and form the basis of its legal order:

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

2) generally accepted principles of morality and justice on which the national legal order is based; national identity of society;

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

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

This listing is not exhaustive or closed. The public policy clause is a rather “rubbery” category and can in fact be used to refuse the application of foreign law, even if the consequences of its application do not in any way contradict the fundamentals of the national legal order. In this regard, the doctrine regards the reference to public policy as a legal pathology, an anomaly and can only be applied in exceptional cases. International law establishes that the court has the right to resort to a public policy clause if the application of foreign law is clearly incompatible with the national legal order (Article 12 of the Rome Convention on the Law Applicable to Contractual Obligations, 1986).

Currently, the legislation of most states (Switzerland, Germany) enshrines similar norms in parallel - the public order clause in negative and positive versions. This trend represents a novelty in international private law and is due to the fact that in any legal system there is a special circle of mandatory rules that are not part of public order, but must always be applied, even if the national conflict of laws law refers to a foreign legal system. The provision on the mandatory application of mandatory norms of national law is a positive version of the public order clause.

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

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

Domestic law also enshrines the need to take into account mandatory norms of foreign law (clause 2 of Article 1192 of the Civil Code). When applying the law of another state, a Russian court may take into account the mandatory norms of the law of another foreign state with which the relationship is most closely connected.

3.8. The theory of references in private international law

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

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

The detachment theory appeared in private law in the 19th century. The legal doctrine of almost all states adheres to a single position. The theory of references is one of the most difficult problems of modern private law. The problem of references has fundamentally different legal regulation in the legislation of different countries. Depending on the features of this regulation, the following solutions can be distinguished:

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

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

3) states that provide for the possibility of using only reverse reference (reference to one’s own law) - Hungary, Venezuela, Vietnam, Spain, Iran, Romania, Japan;

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

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

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

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

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

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

The law and practice of all states contain a general exception to the application of clauses: they are not applicable in contractual obligations. The reason for this establishment is that the general conflict of laws binding of contractual obligations is the autonomy of the will of the parties. The theory of connections is incompatible with the autonomy of the will, since the parties, when choosing the law, have in mind precisely specific substantive legal regulation. The use of exceptions can distort the autonomy of the will, since the rules of conflict of laws can predetermine the application of the law of a completely different state, which does not correspond to the intentions of the parties. This rule is enshrined in both international law (Hague Convention on the Law Applicable to Contracts for the International Sale of Goods, 1986) and in national laws (Introductory Law to the GGU).

3.9. Establishing the content of foreign law

The process of regulating private enterprises with a foreign element consists of two stages. The first stage is the resolution of the conflict of laws issue and the choice of the applicable law based on the requirements of the conflict of laws rule of the law of the forum. The second stage is the direct application of the elected law. If foreign law is recognized as competent, specific problems inevitably arise: defining the general concepts of the law of another state; establishing its content; Peculiarities of interpretation and application of foreign law. The general provision is that the court is obliged to establish the content of foreign law ex officio (ex officio) in order to determine the legal basis for a future court decision.

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

The provisions of Russian legislation on the procedure and methods for establishing the content of foreign law are contained in the Civil Code, the Insurance Code and the Arbitration Procedure Code. The court, in accordance with its powers, is obliged to independently establish the content of foreign law. The mechanism of this process is the diplomatic order, official requests through the Russian Ministry of Justice, direct communications between the courts of different states with each other and other competent authorities. The court establishes the content of the norms of foreign law in accordance with their official interpretation, practice of application and doctrine of the relevant state (clause 1 of Article 1191 of the Civil Code). It is also necessary to take into account foreign judicial practice.

Russian courts have the right to submit inquiries about the content of foreign law to the Russian Ministry of Justice, to other competent authorities of the Russian Federation, to foreign competent authorities, and to attract experts (paragraph 1, paragraph 2, article 1191 of the Civil Code). Persons participating in the case, on their own initiative, can provide Russian courts with information about the content of foreign law, relevant documents, and otherwise assist the court in determining the content of applicable foreign law (paragraph 2, paragraph 2, article 1191 of the Civil Code).

The legislation provides for the application of Russian law, despite the resolution of a conflict of laws issue in favor of foreign law, in cases where all actions taken in accordance with the law did not help to establish the content of foreign law within a “reasonable” time (clause 3 of Article 1191 of the Civil Code). The concept of “reasonable” periods is not defined by law. From the point of view of domestic doctrine, this is the time usually required to establish the content of the norms of foreign law.

Topic 4. SUBJECTS OF PRIVATE INTERNATIONAL LAW

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

The subjects of most PPOs with a foreign element are individuals. The IPP defines the following categories of individuals: foreign citizens, stateless persons, bipatrids, refugees. Foreign citizens are persons who have a legal connection with any state; bipatrids – persons who have legal ties with two or more states; stateless persons - persons who do not have a legal connection with any state; refugees are persons forced for certain reasons (specified by law) to leave the territory of their state and received asylum in the territory of another. The legal status of binationals and stateless persons has serious specifics. In international law, it is assessed as a complicated status, an international legal pathology.

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

In many foreign legal systems (France, Spain) there is a special branch of law - “the law of foreigners”. The legislation of such states defines various categories of foreign citizens. The concept of “foreigner”, as a rule, includes binationals, stateless people and refugees. Most national laws establish the principle of national treatment as applied to individuals (foreigners have equal rights with the local population). National treatment is based on the principles of equality and equity.

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

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

The civil legal capacity of individuals is the ability of an individual to have rights and obligations. The law of most states establishes a mandatory substantive norm. In the field of civil legal capacity, foreigners enjoy national treatment; however, certain issues of legal capacity are regulated by conflict of laws and are determined according to the personal law of the individual.

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

The civil legal capacity of Russian citizens abroad is determined in accordance with the legislation of the host state. The Russian state is obliged to protect citizens of the Russian Federation abroad and provide them with protection. If in any state the rights of Russian citizens are infringed, then by decree of the Government of the Russian Federation retaliatory restrictions (retorsions) may be established for citizens of the corresponding foreign state on the territory of the Russian Federation (Article 1194 of the Civil Code).

4.2. Civil capacity of individuals in private international law

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

In Russian law, the civil capacity of individuals is determined by their personal law (Article 1197 of the Civil Code). To establish personal law (the law of the state of citizenship or domicile), Art. 1195 Civil Code. Modern Russian legislation contains a novelty: an individual does not have the right to refer to his lack of legal capacity under his personal law, if such a person is legally capable under the law of the state of the place where the transaction was made (clause 2 of Article 1197 of the Civil Code). A foreigner’s reference to his lack of legal capacity under his personal law is taken into account as an exception if it is proven that the other party knew or should have known about the lack of legal capacity. This norm is associated with one of the general principles that have long prevailed in private law: a person who is competent according to his personal law is always recognized as competent abroad; a person incapacitated by his personal law may be recognized as competent abroad.

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

On the territory of the Russian Federation, recognition of an individual as incompetent or partially capable is subject to Russian law (clause 3 of Article 1197 of the Civil Code). Foreigners in Russia may be subject to restriction of legal capacity, subject to notification to the competent authorities of the state of citizenship of such a person about the grounds for restriction of legal capacity and the consent of the state of citizenship to trial in the Russian Federation. The grounds for restricting legal capacity must coincide under the laws of both states. In addition, foreigners who have permanent residence on the territory of the Russian Federation may be subject to restriction of legal capacity in Russian courts on a general basis in accordance with Russian law (since the personal law of such persons is Russian law (clause 3 of Article 1195 of the Civil Code)).

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

A very serious problem of modern private law is the institution of unknown absence and declaring missing persons dead. In international law, there are both multilateral (Convention on the Declaration of Missing Persons as Dead, 1950) and bilateral agreements regulating this issue. In multilateral and bilateral agreements on legal assistance, conflict of laws problems of unknown absence are resolved on the basis of personal law or court law. As a general rule, the competent courts are the courts of the state of citizenship of the person against whom the case of unknown absence has been initiated. In certain cases expressly provided for in the agreement, the competent court is the court of the other contracting party (Article 23 of the Russian-Polish Treaty on Legal Assistance of 1996), and the applicable law is the law of the court.

The institutions of guardianship and trusteeship are inextricably linked with the category of legal capacity. Guardianship is established over minors and incapacitated citizens (Article 32 of the Civil Code), and trusteeship is established over minors and citizens with limited legal capacity (Article 33 of the Civil Code). The conflict of laws regulation of guardianship and trusteeship is provided for in Art. 1199 Civil Code. The establishment and cancellation of guardianship and trusteeship are carried out in accordance with the personal law of the ward or ward. The personal law of the guardian (trustee) is applied to establish his obligation to accept guardianship (trusteeship). The law of the competent institution determines the relationship between the guardian (trustee) and the ward (ward). The application of Russian law is legally established if it is most favorable for the person under guardianship (ward) who has a place of residence in the Russian Federation.

Article 1199 of the Civil Code contains a “chain” of conflict of laws rules: individual aspects of the same legal relationship are regulated through various conflict of laws links. Provisions of Art. 1199 Civil Codes are one of the most successful in Russian private law.

4.3. Legal status of legal entities in private international law

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

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

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

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

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

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

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

4.4. Specifics of the legal status of transnational companies

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

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

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

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

One of the main features of offshore is, on the one hand, an absolute prohibition for foreign companies to attract local capital and conduct business activities in the state of registration, and on the other hand, the mandatory involvement of the local population in the management of such companies and the use of the services of local legal (registration) firms. Most offshore zones have special company laws that regulate the legal status of foreign companies registered offshore (for example, British Virgin Islands International Business Companies Ordinance 1984, Company Management Act 1990, etc.). In many countries, offshore companies are opposed to legal entities of national law (Great Britain, Cyprus, Bahamas). Industrialized countries have a rather negative attitude towards the practice of using offshore centers by their national companies. In order to tighten control over the movement of capital across borders and limit the number of offshore companies, many countries have adopted anti-offshore legislation (USA, UK, France). Within the EU, all transactions with companies from offshore zones are subject to mandatory verification and all payments to offshore companies are subject to additional withholding tax. The process of fighting offshore companies began in the mid-80s. XX century Russia adopted Federal Law No. 115-FZ dated August 7, 2001 “On combating the legalization (laundering) of proceeds from crime and the financing of terrorism.”

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

Offshore jurisdictions are divided into “respectable” (having anti-money laundering legislation and not allowing “dubious companies” into their territory - the Bahamas, Singapore, Luxenburg, Hong Kong, Switzerland) and “irrespectable” (no anti-money laundering legislation). money laundering – Jersey, Guernsey, Maine, Liberia). For example, the Cayman Islands (a respectable jurisdiction) has adopted a Law requiring the consent of the authorities of the country of nationality of a company to register it as an offshore company, even if this company does not intend to engage in business activities in its “home” state.

In 2001, the FATF established a blacklist of countries that do not cooperate with international money laundering investigations. At the beginning of 2004, this list included: Guatemala, Indonesia, Myanmar, Nauru, Nigeria, Cook Islands, Saint Vincent and the Grenadines, Ukraine, Philippines. Russia was removed from this list in October 2002.

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

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

Transactions carried out by the state have a special legal regime. Features of the legal regulation of private law activities of the state are predetermined by its sovereignty. By entering into civil legal relations, the state does not lose its qualities as a sovereign. Sovereignty presupposes that the state has a whole range of immunities. In the 19th century In the doctrine of law, the theory of absolute state immunity was developed. In accordance with this theory, the state, as a subject of civil law relations, has the following immunities:

1) judicial - the lack of jurisdiction of one state over the courts of another. All transactions of the state must be examined only in its own courts. Without the State's express consent to be tried in a foreign court, it cannot be tried abroad;

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

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

4) state property – the property of a foreign state is inviolable, cannot be nationalized, confiscated, or foreclosed upon. Without the consent of the owner's state, his property cannot be subjected to compulsory alienation or forcibly retained on the territory of a foreign state;

5) the act of state doctrine (related to the immunity of state property) - if the state declares that the property belongs to it, then the court of a foreign state has no right to question this statement. No foreign competent authority can consider whether property actually belongs to the State if it claims that the property belongs to it. According to the conflict of law immunity of a state, only its own law should apply to the state's PPO. All transactions of the state are subject to its national law.

In practice, the doctrine of absolute immunity can only be applied when the state is not actually the subject of civil legal relations and participates in them in extremely rare cases. In the second half of the 20th century. the degree of state participation in civil relations increased sharply, which caused the emergence of the theories of “official immunity”, “trading state” and the doctrine of functional (limited) immunity in the doctrine. All of these theories are aimed at limiting the immunity of a foreign state. Their essence boils down to the fact that if the state makes trade transactions on its own behalf, it automatically renounces immunity in relation to such transactions and the property associated with them and puts itself in the position of a private person.

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

Many Western countries have fairly extensive legislation governing state immunities: the US Foreign State Immunity Act of 1976, the UK State Immunity Act of 1978, the Foreign State Immunity Acts of Pakistan and Argentina of 1995. All of these laws are based on the doctrine functional immunity of the state. The judicial practice of the listed states divides state acts into public and private, commercial and non-commercial. A foreign state enjoys immunity only in cases of sovereign acts (opening diplomatic and consular missions). If the state commits actions of a commercial nature (i.e., conducts trading activities), it does not enjoy immunity. When determining the nature of the activity of a foreign state, courts must take into account the nature of the transaction, and not its purpose. A foreign country is not granted immunity from enforcement actions against property that is used for trade purposes.

The main international legal act regulating state immunities is the European (Brussels) Convention on State Immunity of 1972, adopted by the Council of Europe. The Convention explicitly enshrines the theory of functional immunity: the preamble of the Convention explicitly states that States Parties take into account the tendency in international law to limit the cases in which a State can invoke immunity in a foreign court. A foreign state enjoys immunity (Article 15) in relations of a public nature, but does not have the right to invoke immunity in the court of another state when entering into a private security agreement with foreign persons. The Convention establishes a wide, detailed list of such relations.

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

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

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

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

4.6. International intergovernmental organizations as subjects of private international law

MMPOs are, first of all, traditional and typical subjects of international law. The scope of international legal personality of IGOs is naturally smaller than that of member states; nevertheless, organizations are included in the group of full and fundamental subjects of international law. However, any MMPO also has a private legal status and acts as a subject of international private law.

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

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

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

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

The law applicable to transactions involving MMPOs is determined on the basis of the autonomy of the will of the parties and the law of the place where the transaction was concluded. However, these traditional conflict of laws principles in such transactions are interpreted much more broadly than when concluding contracts between national legal entities. The rights and obligations of an international organization as a legal entity are determined by international law, therefore the conflict of laws regulation of civil legal relations with the participation of international international organizations is subject not only to national, but also to international law. In 1975, the Committee on Contracts of the UN Secretariat developed Model Rules and Model Contracts for all IMOs in the UN system. The Special Opinion of the Legal Division of the UN Secretariat (2002) emphasizes that “UN contract practice seeks, wherever possible, to avoid reference to any specific law, especially national law. The most acceptable is a reference to the internal law of the organization.”

The ownership of MMPO is, as a rule, secured in an international agreement between the organization and the state of its location. The starting point of conflict of laws regulation of property rights is the application of the law of the location of the thing. However, the international nature of MMPO property requires the transformation of this general conflict of laws into special ones - the location of the organization’s headquarters, the location of the thing in the international region. Such a transformation of traditional conflict of laws principles means the application of the internal rules of the organization itself to the regulation of the property rights of MMPO. It is customary to interpret the law of the place of conclusion of the transaction in the same way - the law of the place of conclusion of the contract in the international region.

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