A COMMON PART

Topic 1. CONCEPT AND SYSTEM OF INTERNATIONAL PRIVATE LAW

1.1. The 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 WFP. Legal issues of relations between individuals and legal entities are within the scope of the MPP. The specificity of the development of modern private educational institutions is characterized by their large-scale internationalization and globalization - the establishment of transparent borders, visa-free entry into the territory of a foreign state, international division of labor, constant migration of the population and labor force, an increase in the number of "mixed" marriages, foreign adoption, etc. In the modern world there is a separate set of relations called "international civil relations". The process of internationalization of NPO leads to the need for their complex legal regulation, taking into account the peculiarities of the legal systems of different states. PPL is the only branch of law designed for the legal regulation of civil (in the broad sense of the word, that is, civilistic, private law) relations arising in the field of international communication.

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

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

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

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

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

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

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

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

In the global legal system, PPM occupies a special place. Its main specificity lies in the fact that MPhI is a branch of national law, one of the private law branches of the law of any state (Russian MPhI, French MPhI, etc.). It is included in the system of national private law along with civil, commercial, commercial, family and labor law. The concept of "international" here has a completely different character than in the LBT, it means only one thing: there is a foreign element in a civil legal relationship (it does not matter at all, one or more and which version of the foreign element). However, PPM 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 MPP". 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 paradox of the norms of MPP is also expressed in the fact that one of its main sources is directly MPP, which plays an extremely important role in the formation of the national MPP. It is customary to talk about the dual nature of the norms and sources of MPI. Indeed, this is perhaps the only branch of national law in which the LBT acts as a direct source and has a direct effect. That is why the definition of “hybrid in jurisprudence” is quite applicable to MPP.

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

1) the autonomy of the will of the participants in the legal relationship is the main special principle of PPM (like any other branch of national private law). Autonomy of will underlies all private law in general (the principle of freedom of contracts; freedom to have subjective rights or to refuse them; freedom to apply to state bodies for their protection or to endure violations of their rights);

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

3) the principle of reciprocity. In MPP, there are two types of reciprocity - material and collisional. The issues of conflict of laws reciprocity (or reciprocity in the broadest sense of the word) belong to conflict of laws law and will be discussed below. Material reciprocity, in turn, is divided into actually material (granting foreign persons the same amount of specific rights and powers that national persons enjoy in the respective foreign state) and formal (granting foreign persons all rights and powers arising from local legislation). As a general rule, formal reciprocity is granted, but in certain areas - copyright and inventive law, avoidance of double taxation - it is customary to provide material reciprocity;

4) the principle of non-discrimination. Discrimination - violation or limitation of the legal rights and interests of foreign persons on the territory of any state. The universally recognized norm of MPE in all states is the absolute inadmissibility of discrimination in private private enterprises;

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

1.3. Normative structure of private international law

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

Conflict rules play a fundamental role in the normative structure of MPP. This branch of law arose and developed precisely as a conflict of law law. For a long time (almost until the middle of the 20th century), MPP was defined exclusively as a set of conflict rules. The understanding of IPL exclusively as a conflict of law law has survived 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 practically generally accepted that the normative structure of the MPP is not limited to conflict-of-law rules. The MPP also includes substantive legal norms - international (unified) and national. Unified substantive rules occupy a very important place in the normative structure of the MPE. Their sources are international treaties and customs, ITUC. Unified substantive legal norms are of a public law nature (they are created by states - powerful subjects) and represent the end result of the process of harmonizing the will of two or more states.

Such norms are called conciliatory, coordination. Unified substantive norms can be directly applied to regulate private private enterprises with a foreign element (Article 7 of the Civil Code). To do this, they must be implemented in domestic legislation. The implementation of the norms of most international treaties regulating NPO into national law is carried out by ratifying the relevant international agreement (if it needs to be ratified) or by signing it (and the subsequent publication of certain internal legal acts that introduce the rules 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 their autonomous, independent character and differ from other norms of domestic law. The autonomy and independence of the implemented international norms in the national legal system is explained by the fact that they are not the creation of one legislator, but were created in the process of international rule-making and embody the agreed will of two or more states. The state does not have the right to cancel or change such norms unilaterally (for 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 the norms of national law, but in accordance with the provisions of international law enshrined in the Vienna Convention on the Law of Treaties of 1969. The legislation of most states establishes the principle of the priority application of international law in cases of its contradiction with the norms of national laws (Article 15 of the Constitution). International law has primacy (supremacy) and in the regulation of private private enterprises with a foreign element (Art. 7 Civil Code, Art. 10 Labor Code, Art. 6 SK, Art. 11 CPC, Art. 13 APC).

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

Substantive legal norms of national law from the point of view of MPP can be conditionally divided into three groups: general rules governing any legal relationship - both having a foreign element in its composition and not having such an element (Article 11 of the Labor Code); “Specially national” norms regulating relations only between citizens of a given state on its territory, that is, relations not burdened by a foreign element (Article 33 of the Constitution); “Specially foreign” norms regulating only certain relations, without fail burdened with a foreign element (Federal Law of 09.07.1999 No. 160-FZ “On Foreign Investments in the Russian Federation” (as amended on 08.12.2003); clause 4 of Art. 124 SK). Of all the domestic substantive legal norms, it is specifically foreign norms that are included in the structure of the MPP.

Such norms do not regulate the entire spectrum of civil law relations, but some part of them, some specific range of issues. The source of specially foreign norms is national law, that is, the creation of one powerful legislator. However, these rules are specifically designed to regulate relations arising in the international sphere. In domestic law, specially foreign norms, as well as the 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 by 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 sphere of PPM is regulated precisely with the help of the substantive norms of national law. Very often, private legal entities with a foreign element do not give rise to a conflict of law issue and problems of choice of law. This situation usually develops in cases where national legislation contains detailed substantive regulation of a large-scale range of relations associated with international communication.

1.4. Methods of regulation in private international law

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

The collision method is a method of resolving conflicts of laws of different states. In MPP there is a concept of “colliding” (colliding) laws. The legal systems of different states regulate the same problems of private law in different ways (the concept of legal personality of individuals and legal entities, types of legal entities and the procedure for their formation, the form of the transaction, the statute of limitations, etc.). For the correct resolution of a civil dispute burdened by a foreign element, the choice of legislation is of great importance. A legally grounded decision of the question of which state's law should regulate this international civil legal relationship helps to eliminate conflicts of legal systems and facilitates the process of recognition and enforcement of foreign judgments.

The collision method is a reference, indirect, mediated method based on the application of collision rules. The court first of all makes a choice of the applicable law (resolves the conflict of law issue) and only after that applies the substantive legal norms of the chosen legal system. When using the conflict method, the rule of behavior and the model for resolving the dispute are determined by the sum of two norms - conflict of laws and substantive, to which the conflict of laws refers. The methods of the conflict of laws method are internal (using the norms of national conflict of laws law) and unified (through the application of the norms of international treaties "on applicable law" and the conflict of laws norms of complex international agreements). The collision method is considered to be the primary and fundamental in the MPI, since the basis of the MPI itself is precisely the conflict of laws rules.

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

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

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

However, until now, when resolving private-law disputes with a foreign element, the conflict-of-law method of regulation continues to dominate in the practice of courts and arbitration. This is primarily due to 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 the given state, that is, the foreign court, when deciding on the applicable law, has chosen the right of exactly that state to whose territory the judgment must be recognized and enforced. The collision method continues to play a major role in MPI.

The source of law is a form of existence of legal norms. Like the MPP itself as a whole, its sources are of a dual and paradoxical nature. The specifics of the sources of MPP are generated by its subject of regulation: NPOs burdened by a foreign element, that is, those lying in the sphere of international communication and affecting the interests of two or more states. On the one hand, MPH is a branch of national law, therefore, its sources are of a national legal nature. On the other hand, it is the international civil legal relationship that regulates the MPL, therefore, international law acts as an independent source of this branch of law. This point of view is also supported by the normative structure of the PPM itself: unified international norms (both material and conflict-of-laws) are directly included in its structure and are an integral part of it. It is this state of affairs that predetermines the dual nature of the sources of PPM (both national and international law).

The national source of PPM is the entire internal legal system as a whole, the entire legal order of a given state. Such an approach in determining the national sources of PPM is due to the fact that its fundamental part is conflict of laws rules that refer not to a specific law, but to the entire legal system, to the entire legal order as a whole. In the first place among the internal sources of MPP are, naturally, laws and regulations. Many states have adopted special laws on PPM. But even in such states, national civil, commercial, family, labor, civil procedural and arbitration legislation in general can be called the source of PPM. An important place among the sources is occupied by national legal customs in the field of international private law (one should immediately note the limited number of such customs in all states).

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

By analogy with national law, it can be argued that the source of PPM 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 (ICR). Of all the international legal sources of international private law, international treaties are of primary importance. In addition, we must not forget that the generally recognized norms and principles of international law are part of the legal system of most states and have primacy over the norms of national law in the event of their conflict (article 15 of the Constitution and article 7 of the Civil Code).

The paradoxical nature of the sources of PPM is manifested in the fact that independent sources of this branch of law are such forms of existence of legal norms, which in other branches of law are considered either auxiliary sources, or means of determining and interpreting legal norms, or simply legal institutions. This is due to the fact that MPP is particularly complex and, like no other branch of law, has a huge number of gaps. Such sources of PPM can be called judicial and arbitration practice (both national and international), the 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 the Russian MCP are listed in the Civil Code (Articles 3, 5–7, 1186), the Civil Code (Article 11), the AIC (Article 13), SK (Articles 3–6). Russian legislation recognizes national law, international treaties and customs, the analogy of law and law as sources of MPP.

National law is the main and primary source of PPM as a branch of national law. National laws play a major role in the creation of MPE norms. In the first place are those national laws that are specifically designed to regulate civil law relations with a foreign element (special laws on MPP, investment legislation, legislation on taxation of foreign persons, on compensation agreements). However, it should not be forgotten that the basic law of any state (and, accordingly, the main source of all national law) is the constitution of this state. Speaking about the sources of the Russian MPP, first of all, the Constitution should be mentioned. It should be emphasized that the Constitution establishes only the most general principles of regulation of 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 law, it should be highlighted: Civil Code, Civil Procedure Code, APK, TC, SK, NK, VK, KTM, Customs Code, Fundamentals of Legislation on Notaries, approved by the Supreme Council of the Russian Federation on 11.02.1993 No. 3517-1 (in ed. from 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 MPP. Of course, all of the above legislation, as well as by-laws and departmental instructions, on the whole cannot be considered sources of Russian MPP. We are talking about the individual norms contained in them, chapters and sections specially devoted to the regulation of NPO with a foreign element.

In Russian law, there is no separate law on MPP, although the draft of such a law at the doctrinal level was prepared already in the 1980s. XX century Unfortunately, it was not possible to carry out a complete codification of the Russian MPP, and a special law on MPP was not considered even at the level of the draft law. In Russian law, cross-sectoral codification has been made: in the Civil Code, SK, KTM, CPC and AIC, special chapters and sections are included that regulate NPO with a foreign element. The main sources of Russian MPP - Sec. VI Civil Code, sect. VII SK, ch. XXVI KTM, sect. V Code of Civil Procedure, Ch. 31–33 agro-industrial complex. The main source is sect. Part VI of the third Civil Code, since the provisions of civil legislation can be applied by analogy to all private private enterprises not regulated by special legislation (Article 4 of the SK). Ch. 66 sec. Part VI of the third Civil Code, which contains general provisions for the application of foreign law on the territory of the Russian Federation and establishes general principles for the regulation of all private private enterprises with a foreign element.

Despite the fact that the cross-sectoral codification of the Russian MPP 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, which would regulate the entire spectrum of relations in the field of international private law. A full-scale codification of MPP has advantages over cross-sectoral codification: fewer gaps, no "mutual references" and the need to apply different regulations, less grounds for applying the analogy of law and law.

The international legal sources of PPM are an international treaty, international custom, MCP.

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

The creator (subject) of the norms of international agreements regulating the problems of PPM is also the state. Regardless of the subject of regulation, any interstate agreement falls within the scope of the LBT. However, the overwhelming majority of international conventions dedicated to the regulation of private law issues are not addressed to the state as a whole, but to its national law enforcement bodies, individuals and legal entities. Such international treaties contain mainly self-executing norms, that is, specific and complete, already fully adapted for direct action in national law. For the implementation of the norms of such an international treaty into domestic law, it is not necessary to issue special laws, but rather the ratification of the treaty or its signing. Of course, all international agreements on PPM also contain the 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 (Article 7 of the Civil Code).

International treaties governing PPM issues constitute a whole system in international law. Most of these agreements are bilateral agreements (on legal assistance in civil, family and criminal matters, consular conventions, agreements on trade and navigation, merchant shipping). Of the greatest importance for international cooperation are, of course, 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 drawback of most of such agreements is their insufficiently representative character (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 PPM, adopted quite a long time ago, have not yet entered into force, since they did not have the required number of participants.

More successful is the codification of PPM, produced through the conclusion of international conventions of a regional nature. In the modern world, there is the only interstate codification of PPM 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 are applied by the courts of all member states. Regional conventions on cooperation in the field of PPM are concluded within the framework of various international organizations, for example, in the 1993 Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, signed by the CIS countries, in the conventions of the European Council.

International legal custom. International legal custom is defined as the source of WFP in the Statute of the International Court of Justice. A custom is a general practice that is recognized as a legal norm. For a practice to take on the character of a customary rule of law, duration, regularity, stability and repeatability of its application are necessary. In addition, such a practice must be formally recognized as a rule of law. Custom is considered the oral form of sources of law. This, however, does not mean that there is no written record of international legal customs. On the contrary, all customs (both national and legal, and international) are almost always fixed in writing. The fact that this source of law is considered oral means that the recording of customs is made in non-normative acts (judicial practice, diplomatic correspondence, private unofficial codifications).

International commercial customs, business and merchant shipping customs play the most important role in the international private sector. In foreign trade, types of ordinary transactions have been developed, based on a unified interpretation of stable trade, business and banking terms. ICC in Paris has made several private unofficial codifications of international customs: the Warsaw-Oxford Rules for CIF Transactions, the York-Antwerp General Average Rules (last revised in 1994), INCOTERMS-2000, Unified Rules for Documentary Credit and Collection, etc. All these acts are not normative in nature and are not sources of law. It is simply a record, a written record of the usual 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 (Articles 5 and 6 of Article 1211 of the Civil Code).

International commercial law. The concept of "lex mercatoria" (ITUC, transnational trade law, the law of the international community of merchants) appeared in law relatively recently. From the middle of the XX century. MCP is usually understood as a system of non-state regulation of foreign trade activities. This system is also defined as a soft flexible law, the norms of which are of a recommendatory nature (the participants in the legal relationship are not bound by mandatory state regulations). The concept of MCP is adjacent to the concepts of quasi-international law and the law of TNCs. The advantages of the ITUC in comparison with national legislation and international treaties lie precisely in providing participants in international trade with a maximum freedom of action. Lex mercatoria is based on resolutions and recommendations of international organizations on foreign trade issues (general conditions of supply, form contracts, accession agreements, standard contracts, standard regulations).

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

In many foreign countries, judicial and arbitration practice as a source of PPM plays a more important role than national legislation and international law (France, UK, USA). Judicial and arbitration practice, which is a source of law, is understood as decisions of courts (as a rule, of higher instances), which have a law-making character - they formulate new norms of law. It should be borne in mind that the lawmaking 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 existing (positive) law and formulate it as a system of legally binding prescriptions. In principle, the court only fixes a certain rule of conduct, which in society is regarded as binding.

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). The judicial precedent can be defined as follows - this is a decision of a higher court, which is imperative, decisive for the lower courts when they resolve similar cases in the future. No court decision automatically becomes a precedent; it must receive the status of a precedent in the manner prescribed by law. Judicial precedent, as a decision that has a guiding value in solving similar cases in the future, is used in almost all states, but only in countries of a common legal system there is an integral case law.

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

In Russian legislation, judicial and arbitration practice is not formally considered a source of law. The domestic legislator regards the practice of law enforcement agencies as the main means for the interpretation, definition and application of legal norms. This approach is completely contrary to the established practice. In fact, the Russian courts and arbitration tribunals play exactly the same role in identifying applicable 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 clarifications of the plenums of the RF Armed Forces and the RF Supreme Arbitration Court. The practice of Russian law enforcement agencies is of particular importance for the development and improvement of Russian MPP. It has already been said that one of the most significant shortcomings of domestic legislation in the field of PPM is the vagueness of its wording and the actual impossibility of their direct application by the courts without appropriate explanations from the plenums.

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

The 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 the state authorities are completely free to choose between the different points of view expressed by lawyers. The Russian legislator takes into account the assessment of the doctrine as a source of private law in other states (Article 1191 of the Civil Code, Article 14 of the AIC), but does not consider the development of Russian scientists even an auxiliary source of law.

Currently, the MPP doctrine is widely used in order to unify and harmonize it. The developments of UNIDROIT, The Hague Conferences on PPM and the International Law Commission form the basis of many international agreements and are used by most national legislators to improve PPM in various states. The main function of the doctrine as a source of MPI is to maximally fill these gaps at the level of scientific developments.

Analogy of law and analogy of law. The analogy of the law implies the application to relations (if this does not contradict their essence) legislation regulating similar relations, if these relations are not directly regulated by legislation, or by agreement of the parties, or by business customs. The analogy of law is applied if it is impossible to use the analogy of the law: the rights and obligations of the parties are determined based on the general principles and requirements of legislation, the requirements of good faith, rationality and justice. The analogy of law and the analogy of law have been known since the time of Roman law to the legislation of most states in the world. Almost everywhere these institutions are considered sources of law (Art. 6 of the Civil Code, Art. 5 of the IC, Art. 11 of the Code of Civil Procedure, Art. 13 of the AIC). The main functions of the analogy of law and law in MPP are: filling 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 WFP. True, they are not its main sources, in the role of which are an international treaty and international legal custom. In addition, the Statute emphasizes that, at the request of the parties, the court can resolve the dispute not on the basis of international law, but on the basis of the principles of justice and good conscience (the principle of justice and good conscience is one of the general principles of law). An unambiguous conclusion can be made - the general principles of law are included in the system of international law, therefore, they are international legal sources of international private law of any state.

The allocation of these principles as an independent source of PPM is associated with their dual role in the PPM system - this is 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, rationality and justice. The main role of general principles of law as a source of PPM is to resolve a private legal relationship 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 the participants in civil legal relations is a fundamental, fundamental principle of any domestic private law system. The essence of the autonomy of will lies in the freedom of the parties to join or not to join any NPO, both regulated and not regulated by law. In MPP, autonomy of will plays a special role: it acts as a triune phenomenon - the source of MPP, its main special principle and one of the collisional links.

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, not tested by anyone, absolutely new for a given legal system. At the same time, the autonomy of will does not have an unlimited character: any national legislator sets its limits - private agreements should not violate state and power institutions (including the mandatory 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 state bodies (primarily courts and arbitration tribunals). In all legal systems, the autonomy of the will is assessed as a private law (lexprivata).

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

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

3.1. Basic principles of conflict of laws

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

National courts apply foreign law only when resolving private law disputes burdened by a foreign element. In this case, foreign law is applied exclusively by virtue of the provisions of national legislation. Conflict rules on civil law, created by the national legislator, require national judicial bodies 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 has a strictly territorial character and can regulate relations only on the territory of a given state. Conflicting rules of national law endow foreign private law with extraterritorial effect.

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

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

Conflict law is a subsystem of the PPM, the main institution of its General Part. LCP was formed and developed precisely as a conflict of law law. The main source of conflict of laws rules is national legislation, however, 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 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 the reference and blanket rules of national law. However, both reference and blanket rules refer to the legal system of a particular state, specifically indicating the applicable legislative act or even a rule of law. Conflict rules are immeasurably more abstract; they provide for the possibility of applying their own national law, and private law of other states, and international law. The collision norm is a kind of "leap to nowhere".

The structure of a conflict of laws norm is fundamentally different from the structure of an ordinary legal norm (in a conflict of laws norm there is neither a hypothesis, nor a disposition, nor a sanction). The necessary structural elements (requisites) of a conflict of law rule are scope and anchor. Both structural elements must be present at the same time in any conflict of laws rule: there are no conflict of laws rules consisting only of scope or only of binding. The scope of the conflict of laws rule determines the content of the legal relationship to which this rule applies.

Conflict binding, in essence, solves the main problem of PPM: it is in the binding that contains the answer to the conflict of laws question, the law of which state should resolve this legal relationship. It is in the conflict of laws binding that some objective criterion is contained that makes it possible to resolve the issue of applicable law. Anchoring is the main element of the conflict of laws rule. It has an abstract character, does not refer 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 referred to as a "pinning formula". However, this term is applicable not to all conflict of laws, but only to those that provide for the possibility of applying foreign law, and not only the law of the country of the court. An indication of the possibility of applying foreign law should be expressed in the most general way, through the establishment of 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 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 "by the law of the country where this property is located" - a conflict of laws; the words "the country where this property is located" is an objective criterion that allows you to establish the applicable law. Terminologically, very often the objective criterion completely coincides with the text of the conflict of laws (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 norm, 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 norms are distinguished, depending on the peculiarities of their conflict of laws, regulated conflicts, sources of origin, action in time and space. The species division of conflict norms depends on the criteria for their classification. Let us present the most convenient classification of conflict rules by their types.

1. The way of expressing the will of the legislator - mandatory, alternative and dispositive conflict of laws rules. In peremptory norms, there can be only one collisional binding (any, except for the autonomy of the will and the bindings derived from it - the criterion of a real connection, the law of the essence of the relationship and the right of the contract). An imperative conflict of laws rule is an authoritative prescription of the legislator on the application of 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 norms are characterized by the presence of several conflict bindings (any, except for the autonomy of will and its derivatives). The alternative rule gives the court the right to choose the applicable law at its own discretion (only the court has the right to choose the law, but not the parties to the legal relationship). Alternative norms are divided into simple and complex. Simple alternative conflict of laws rules provide for the possibility of applying one or another law. The choice depends only on the judicial discretion and the factual circumstances of the case (paragraph 1 of article 1217 of the Civil Code). Complicated (subordinate) alternative conflict rules establish the main and subsidiary links, which are applied depending on the differentiation of the scope of this conflict rate (clause 3 of article 1199, article 1201, clauses 1 and 2 of article 1219 of the Civil Code). The main link is applied in the first place, and subsidiary (there can 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 norms, as the main conflict of laws binding, 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 MPP, there is a tendency to transform the autonomy of the will. A large number of new conflict of laws rules have appeared, derived from the right of the parties to choose the applicable legislation themselves: the law inherent in this agreement; own right of contract; the law of the essence of the relationship; the criterion for the closest connection.

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

2. Form of conflict of laws binding - bilateral and unilateral conflict of laws rules. Unilateral - provide for the possibility of applying only its own national law, the law of the country of the court (Art. 424 KTM): "The law of the state in whose court the case is being considered applies to the occurrence of a maritime lien on a ship_." Such norms are mandatory. 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 laws rules provide for the possibility of applying both national and foreign or international law. Such norms can have an imperative, alternative and dispositive nature (clause 1 of article 1197, article 1201, clause 1 of article 1211 of the Civil Code, respectively). In modern law, there are much more bilateral conflict-of-laws rules than unilateral ones. The conflict of laws rule "court law" is considered a "hard" law, and currently the legislation of all states strives 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 collision norm that is called the binding formula.

3. Legal form (source of law) - national legal (internal - Section VI of Part III of the Civil Code) and unified international legal (contractual - The Hague Convention on the Law Applicable to the Agreement for the International Sale of Goods in 1986) conflict rules. Of course, internal conflict of laws norms have predominant application. The specificity of unified conflict of laws rules is that they are uniform conflict of laws rules created on the basis of international agreements and representing the end result of the process of harmonizing the will of states. Unified conflict of laws norms in the national legal system act as norms of internal law (in accordance with article 15 of the Constitution, article 7 of the Civil Code) and do not differ from them in their legal nature. However, unified norms always remain in touch with the international treaty that gave rise to them and, as a result, do not merge with internal conflict-of-laws norms, exist in parallel with them and have features related to contractual origin.

4. The importance of conflict rules - general (basic) and subsidiary (additional) conflict links; general and special collision bindings. General conflicts of laws establish the law that applies in the first place ("fundamental" law), for example, par. 1 p. 1 of Art. 1223, paragraph 3 of Art. 1199 CC. Subsidiary conflict of laws rules establish a “additional law” applicable only in certain circumstances (as a rule, if the “basic” law cannot be applied for any reason), - paragraph 3 of Art. 1199, art. 1201 CC.

General collision links are collision rules common to most of the world's legal systems. In addition, these are general (cross-cutting) ones, that is, applicable in all industries and institutions of the MPE, conflict rules: the personal law of an individual, the law of the court, the law of the flag, etc. Special conflict links are formulated directly for specific institutions of the MPE. They are applied in certain areas of private security organizations 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 links represent a transformation of general conflict rules.

3.4. Basic types of collision bindings

The types of collision anchors (attachment formulas) are the most typical, maximally generalized rules, most often used to construct collision rules. They are also called collision criteria or collision principles.

1. Personal law of an individual. Depending on the state belonging to a certain legal system, the personal law of an individual is understood in two versions: as the law of citizenship in civil law and as the law of domicile (place of residence) in common law. The legal status of a person under the law of citizenship is determined by the legislation of the state whose citizenship the person has, under the law of domicile - under the legislation of the state in whose territory this person lives. In modern law, states strive 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 CC. Since Russia belongs to the continental legal family, the general conflict of laws is the law of citizenship. It is also possible to apply the law of place of residence, since the domestic interpretation of the personal law takes into account the current trends in the development of private law: for different categories of individuals, either the law of citizenship or the law of domicile is applied. The personal law determines the civil and civil procedure legal personality (personal statute) of an individual (Articles 1195-1199 of the Civil Code).

2. Nationality law (personal law) of a legal entity. In modern PPM, there are four options for defining the personal law of legal entities:

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

b) according to the theory of settledness, 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 states (France, Germany, Spain, Belgium, Poland, Ukraine);

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

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

In the legislation of most states, a combination of various criteria is used to determine the personal law of legal entities (Great Britain and the United States - the theory of incorporation and control, India - incorporation and effective place of business, Hungary - incorporation and settlement). The personal law of the company determines its personal statute (the legal personality of the company). In Russian law, the concept of a personal statute of a legal entity is defined in clause 2 of Art. 1202 CC. Russia is one of the few countries in the world, in whose law only one criterion for determining the personal law of a legal entity is established - 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 conflicts of laws, which determines the property-legal statute of legal relations (Article 1205 of the Civil Code). In modern law, there is a tendency to change the scope of this attachment formula (previously it was applied mainly to real estate, now - and 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 arose entirely on the territory of one state, and the thing was subsequently moved to the territory of another, then the very emergence of the right of ownership is determined by the law of the place of acquisition of the property, and not by the law of its real location; the legal status of things entered in the state register is determined by the law of this particular state, regardless of the real location of the thing (Article 1207 of the Civil Code).

The moment of transfer of ownership and the risk of accidental destruction of a thing is fundamentally differently determined 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 destruction of a thing. In PPM, in principle, there is a tendency to narrow the application of the real-legal statute by expanding the personal and obligations.

In a special order, the real legal statute of movable things that are in the process of international carriage ("cargo in transit") is determined: to resolve this issue, the law of the country of departure of the goods, the place of destination of the goods, the location of the documents of title (clause 2 of Art. 1206 GK).

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

An autonomy of will may be applied to a real estate contract. The parties themselves can choose the applicable law, regardless of where exactly the property is located. This provision is a novelty of modern PPM and is associated with the expansion of the application of autonomy of will to all contractual relations. There is a similar provision in Russian law (Article 1213 of the Civil Code).

4. The law of the country of the seller. This is a general subsidiary collision linking of all foreign trade transactions. The law of the country of the seller is understood in a broad and narrow sense. Understanding in the narrow sense means the application to the contract of sale 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 country of the seller in a broad sense means that the law of the state in whose territory the place of residence or main place of business of the party that carries out the performance is decisive for the content of the contract applies. The central party to the sales contract is the seller. The purchase and sale transaction is the main foreign trade transaction. All other foreign trade transactions are constructed according to the model of a sale and purchase agreement, respectively, the central party in other transactions is determined by analogy "the seller is the central party in the sale and purchase agreement."

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

5. The law of the place where the act was committed. This is a generic binding of the binding 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 principle of collision, the law of the place where the act is committed, has a general character. The classic use of this formula in a generalized form is the resolution of conflicts 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 of committing an act is a special collisional binding, the law of the form of an act, based on the initial 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 this act takes place. This provision has an imperative character, 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 is committed 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 CC. However, the provisions of Russian legislation on this issue have a peculiar character. If, according to the law of the place of the transaction, from the point of view of the form, it is invalid, such a transaction in the Russian Federation cannot be considered invalid if it meets the requirements of Russian law. This norm is imperative, which only exacerbates the flaws of this approach. Article 1209 of the Civil Code is a source of "lame" relations: in Russia, a legal relationship generates legal consequences, but in the state on whose territory it arose, it does not. In addition, paragraph 2 of Art. 1209 of the Civil Code establishes the primacy of Russian law when regulating the formal statute of a transaction in which a Russian legal entity is a participant. 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 the attachment of the law of the place of commission of the act are the law of the place of conclusion of the contract and the law of the place of performance of the obligation. These attachment formulas are subsidiary in nature in relation to the autonomy of the will of the parties when regulating issues of the binding statute. They apply only in the absence of an agreement between the parties on the choice of law (the statute of obligations is defined in Art. 1215 of the Civil Code).

The law of the place of conclusion (execution) of the contract regulates the obligations of the parties arising from private law contracts. The trend of modern practice is to refuse to use this attachment formula due to the widespread use of contracts between absentees. In addition, the concept of the place of concluding a treaty is fundamentally different in the continental and Anglo-American legal systems. In common law, the "mailbox theory" applies: the place of the conclusion of the transaction is the place of departure of the acceptance. Continental law (and the 1980 Vienna Convention on the International Sale of Goods) enshrines the “doctrine of receipt”: the place where the transaction is made is the place where the acceptance is received. 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 fulfillment of an obligation is considered one of the most optimal options for regulating issues of the binding statute. In relation to the autonomy of the will of the parties, this conflict of laws has a generally recognized subsidiary character. The law of the place of performance of an obligation can be understood in a broad and narrow sense. The understanding of this conflict of laws linkage 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 Process of 1982, the law of the place of execution of the contract applies if the parties have not expressed autonomy of will, with several places of performance, the law of the place of performance of the action that is the center of gravity of the obligation applies; similar provisions are contained in the 1986 Introductory Law to GGU).

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

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

At present, the law of the place of committing a tort is assessed as a "hard" conflict of laws binding, and in the law of all states there is a tendency to reject its application. The main principle of modern resolution of tort obligations is the possibility of choosing the legislation that is most favorable for the victim (at the initiative of the court or the victim himself). The options for choosing are quite numerous: the law of the place where the harmful act was committed, the law of the place where the harmful consequences occurred, the personal law (citizenship or domicile) of the victim or de-liquor, 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 establish a "chain" of conflict of laws rules, which allows the use of a system of "flexible" regulation of tort relations.

7. Debt currency law. This is a special collision binding for resolving issues arising from the content of monetary obligations. This attachment formula was developed in German doctrine and practice and is a problematic, not generally recognized collisional attachment. In Russian law, for example, there is no such binding.

The essence of the currency peg is as follows: if the 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, to establish its closest connection with the law of a particular state.

8. Court law. This is the binding of a unilateral conflict of laws rule, which means the application of exclusively local law, the law of the state whose court is considering the case. The necessary conflict of laws issue is decided by the court in favor of the law of the state on the territory of which the private law dispute is being considered (Art. 424 KTM). The application of the law of the country of the court is enshrined in all conflict rules of the FGK. In the practice of English courts, the resolution of a dispute on the basis of court law 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".

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

In modern practice and doctrine, it is generally recognized that the law of the court is a "hard" conflict of laws binding, one should strive for the maximum possible refusal from its application. The generally recognized scope of court law 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 application by the court of only its procedural law).

9. Flag law. This conflict of laws principle is a transformation of the “personal law” binding in relation to aircraft, watercraft and space objects. The legal status of such objects is governed by the law of the state whose flag the aircraft or watercraft is flying. The main field of application of the law of the flag is international sea and air transport, merchant shipping and shipping. In KTM, a large number of norms are built on the basis of this conflict of laws binding, for example: ownership and other property 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 (Art. 417), the limits of the shipowner's liability (Art. 426).

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

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

The applicable law clause can be expressly expressed (expressis verbis) in the contract. However, the parties rarely make an express clause about the applicable law. No one knows in advance where, when and for what reason a dispute arises from the contract, so choose the applicable law more functionally after the dispute has arisen. But, if a dispute has arisen, it is rather 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 applicable law. If there is no agreement between the parties on the applicable law in the contract, the court itself establishes which law should govern this relationship. This issue is resolved in different ways in Russian (Art. 1211, 1213 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 CC. The law of the country with which the contract is most closely related shall apply to the contract. The law of the country with which the contract is most closely related is the law of the state on whose territory the place of residence or main place of business of the central party of the legal relationship is located, that is, the counterparty whose performance is decisive for the content of the contract. In Art. 1211 of the Civil Code lists 26 varieties of civil law contracts and for each of them the applicable law is determined, which is established based on the criterion of a real connection. Conflict issue in relation to contracts not listed in Art. 1211, is solved by analogy (analogy of the law).

In the courts of Western states (Great Britain, France, Austria, USA), in the absence of a clause on applicable law in the agreement, a “hypothetical”, “implied” will of the parties is established, that is, the court itself determines which law the parties would like to apply to the disputed relationship. To establish the "implied will of the parties" the criteria of "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), he chose the law; reasonable communication; the law inherent in this agreement; general citizenship 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 own right 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 clause 2 of Art. 1186, art. 1188, p. 1, 2, 5 art. 1211, paragraph 1 of Art. 1213 Civil Code. Unfortunately, the domestic legislator failed to work out 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 clause 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 own right of the contract) presupposes the application of the law that regulates the basis of the legal relationship. This criterion is formulated in Russian legislation as follows: the law to be applied to the relevant relation (Articles 1208, 1218 of the Civil Code). Such norms are usually called "rubber" - extensible, suggesting different interpretations and the broadest freedom of judicial discretion. "Rubber" norms have long been characteristic of Western law, and thanks to centuries of judicial practice, they have a fairly definite content. In Russia, there is no judicial practice for the application of such norms, and it is practically impossible to use them in courts without additional clarifications and interpretations.

3.5. Contemporary conflict of laws issues

The modern main feature of the development of conflict of laws is the desire to abandon the "hard" conflict rules based on a single criterion for the choice of law. For the choice of law on one issue, not just one is used, but a whole system of interrelated conflict of laws rules ("chains" of conflict of laws rules) - for example, Art. 1199 CC. The main way of choosing a law is the application of flexible rules that allow taking into account all the specific circumstances of the case. The legal relationship is divided into statutes, and each statute has an independent conflict of laws regulation. In one actual legal relationship there is a whole system of different statutes: personal, property law, obligation, formal, tort, currency, inheritance, marriage, etc. part of the legal relationship is most closely related. This method of legal regulation presupposes the use, first of all, of the criterion of the closest connection and the principle of the essence of the relationship.

By no means in all cases the legal relationship with a foreign element is subject to one 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, the form of the transaction) - to the law of another (other) state. This phenomenon in MPP is called "multiplicity of collision links", which manifests itself in the following variants.

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

2. In the event of a split of a conflict of laws norm, the legal relationship as a whole is subject to one legal order, and its individual issues - to another. For example, inheritance relations are generally subject to the personal law of the testator (the law of the testator's last habitual residence), and the inheritance of real estate involves a separate conflict 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 allow recognizing a relationship as valid if it meets the requirements of either one or another legal order, directly specified in this rule (Articles 419, 420 of the Code of Trademarks). The plurality of collision bindings takes place in both simple and complex subordinate alternative collision norms (Articles 1211, 1213 of the Civil Code).

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

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

3.6. Conflict rule qualification, interpretation and application

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

Likewise, the interpretation of a conflict of laws rule accompanies its application. A conflict of laws rule, like any other rule of law, consists of various legal terms and conceptual constructions. Legal concepts are the basis for both the scope and the binding of conflict of laws rules. However, the interpretation, or legal qualification, of a 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 rule should be applied are in the legal field of different states. The conflict of laws rule binds the national law with the foreign one, therefore the problem of qualification comes down to the fact from the point of view of the law of which state it is necessary to interpret the legal categories contained in the conflict of laws rule itself.

There is a theory of “conflict of qualifications” in LSP 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 law of different states, textually identical legal concepts (legal capacity, form of transaction, personal law, place of conclusion of the transaction) have fundamentally different contents. Conflict of qualifications must be distinguished from conflict of jurisdiction - the problem of choosing a competent court (one of the most difficult problems of IHL).

The problem of qualification of conflict of laws legal concepts exists only at the stage of choosing a law, when solving a conflict of law 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 law and order, 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.

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

1. Qualification under the law of the court (ie, under the national law of the state whose law enforcement authority is considering the case). This is the most common way to resolve a qualification conflict. A conflict of laws norm as a norm of national law uses national legal categories inherent in this particular legal system. The entire legal terminological structure of a conflict of laws norm has the same content as the norm of material private law of a given state. Since the conflict of laws issue is resolved on the basis of the conflict of laws law of the country of the court, then the qualification of conflict concepts should be carried out precisely according to the law of the court.

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

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

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

2. The theory of "autonomous" qualification is based on the fact that a conflict of laws rule, national in nature, binds domestic law with foreign, and this circumstance cannot be ignored. To fulfill the role of a link between the legal orders of different states, a conflict of laws rule must use concepts common to all legal systems, which are established with the help of comparative jurisprudence and generalization of homogeneous civil law concepts. Both in the foreign and in the domestic doctrine of PPM, the point of view is expressed 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 is positive. It is precisely such conflict of laws rules that would be able to fulfill their function of choosing the competent law in the best way. The problem is where to find such general generalized concepts? Their development is the task of comparative jurisprudence. However, an even more complex problem immediately arises: who exactly should make a comparative analysis of the law of different states and establish common legal concepts for all? Comparative analysis is a doctrine task, the conclusions of which are not legally binding on the court. Only the court decides the conflict of law issue and determines the applicable law.

Legally, it is the judge in the process of law enforcement that has the right to make a comparative analysis of the law of those states with which this relationship is associated, to single out legal categories common to all and, on their basis, to apply the domestic conflict of laws rule. But is it possible, in principle, to oblige a judge to engage in comparative jurisprudence in each case of a case 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 the light of all that has been said, an unambiguous conclusion can be made: at present it is difficult to talk about the possibility of practical implementation of autonomous qualifications.

Today, autonomous qualifications 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 the conflict of laws rules certainly exist and they need to be established. The main way of defining and creating such concepts is the unification and harmonization of conflict of laws and substantive law.

Closely related to qualification conflicts are the problems of defining, interpreting and applying legal norms. If the conflict of law issue is resolved in favor of the application of a foreign law, then the generally recognized rule applies: foreign law must be interpreted and applied as it is interpreted and applied in his “native” state by a “native” judge. The practical implementation of this rule is, perhaps, the greatest difficulty in MPI. It is unclear to what extent a court of one state, knowing and applying ex officio (ex officio) only its own national law, is capable of interpreting and applying foreign law in the same way as the 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 systems of law 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 prescriptions of a state-imperious nature and should be taken as something given, unprovable, along with other factual circumstances of the case. In Anglo-American law, the opposite position prevails: foreign law is not considered a law, a system of legally binding norms, but is considered only as a fact subject to proof along with other factual circumstances.

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

The 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 agro-industrial complex. The provisions on establishing the content of the norms of foreign law are among the most successful in the Russian MCP. The content of the norms of foreign law is established by the Russian court ex officio in accordance with their official interpretation, application practice and the doctrine of the respective foreign state. This position takes into account the specifics of the sources of foreign MPE. It is indirectly recognized that in other states the sources of PPM are not only legislation, but also judicial practice and doctrine.

Russian law also establishes the 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, the involvement of experts. The Russian court also 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 an obligation. The burden of proving the content of foreign law can be imposed on the parties only in disputes related to entrepreneurial activity. If, despite all the measures taken, it was not possible to establish the content of the norms of foreign law, the court applies Russian law (clause 3 of article 1191 of the Civil Code, clause 2 of article 166 of the SK).

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

One of the basic principles of international private law is that the application of foreign law should 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 for its application. For these purposes, a special institution has been developed in the MPP - a clause on public order, 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: a foreign law selected on the basis of a domestic conflict of laws rule does not apply and the subjective rights arising on its basis are not recognized if such application or such recognition is contrary to the public order of the state.

The first piece of legislation containing a public policy clause is the FGK. In Art. 6 FGK stipulates that it is impossible, through private agreements, to abolish the effect of laws in the observance of which public order and good manners are interested. This formulation is called a positive public policy clause (Article 24 of the Civil Code of Algeria). At present, the legislation of the overwhelming majority of states (Switzerland, Poland, Germany, the Russian Federation, etc.) adopted a negative version of the public policy clause. For example, according to Art. 5 of the Law on Private International Law of Austria, the norm of foreign law does not apply if its application can lead to consequences incompatible with the basic principles of the Austrian legal order.

Russian law applies a negative version of the public policy clause. In various legislative acts, a rather similar terminology is used: the foundations of law and order (public order) of the Russian Federation (Article 1193 of the Civil Code, Article 167 of the Criminal Code), public order of the Russian Federation (Article 244 of the Arbitration Procedure Code), 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 order of the given state. The statement that the law of one state contradicts the law of another state is inadmissible. National public order can be contradicted not by foreign law itself as a whole (as an integral legal system), but only by the consequences of the application of its norms. In modern law, it is also considered unlawful to refuse to apply foreign law only on the grounds that in the respective state there is a fundamentally different political, economic or legal system (paragraph 2 of article 1193 of the Civil Code).

Not a single legislative act contains a definition of the category "public order". The doctrine constantly emphasizes the uncertainty and even indeterminacy (FRG) of this concept. Modern jurisprudence constantly attempts to define the category of "public order" by listing the norms that are of a super-mandatory nature in national law and form the basis of its legal order:

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

2) generally recognized principles of morality and justice, on which the national legal order is based; national 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 the action of national law.

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

At present, in the legislation of most states (Switzerland, Germany), similar norms are simultaneously enshrined - a clause on public order in negative and positive versions. This trend is a novelty in the PPM and is associated with the fact that in any legal system there is a special range of peremptory norms that are not part of public order, but should always be applied, even if the national conflict of laws law refers to a foreign legal system. The clause on the mandatory application of peremptory norms of national law is also a positive version of the public policy clause.

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

In Russian law, the provision on the application of peremptory norms (a public order clause in a positive version) is enshrined in clause 1 of Art. 1192 CC. Certain peremptory norms of Russian law are always applied, regardless of the resolution of the conflict of laws issue. The legislator tried to define the range of such norms: peremptory norms, which directly indicate the obligation to apply them (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 turnover. It seems that we are talking specifically about peremptory norms of civil law (first of all), family and labor law, public norms with a private law effect, but not about peremptory norms of public law that fall under the category of public order.

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

3.8. Reference theory in private international law

One of the most difficult problems of PPM is the problem of “hidden collisions”. It is these collisions that are the main cause of the conflict of qualifications. In this situation, not material, but conflict-of-law norms of law of different states collide. Latent collisions are usually called "collisions of collisions", that is, the collision of collision principles. Such collisions arise when the same term is applied to completely different in essence 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). Latent collisions (collisions of collisions) can have both positive and negative forms. Positive collisions of collisions are manifested when two or more legal orders simultaneously claim to regulate the same relationship. Negative collisions occur when none of the possibly applicable legal order agrees to regulate the disputed legal relationship.

Hidden collisions are at the heart of the theory of references: a backward reference and a reference to the third law (renvoi of the first and second degrees). Referencing means that the foreign law selected on the basis of the conflict of laws rule of the country of the court refuses to regulate the disputed relationship and refers back to the law of the court (referral of the first degree). From ^ 1lka to the third law takes place in the case when the chosen foreign legal order does not contain material regulation of this relationship, but prescribes to apply the law of the third state (second degree reference). Further references to the law of the fourth, fifth, etc. states are also hypothetically possible. The reasons for the appearance of references are not only latent collisions, but also the very nature of the conflict of laws rule: this is an abstract, general rule referring to the foreign legal order in general, to the foreign legal system in general, including not only material, but also conflict law. Negative collisions are the immediate cause of collisions.

The theory of ot ^ llok appeared in the MPP in the 19th century. The doctrine of law of almost all states adheres to a single position. Reference theory is one of the most challenging problems of modern PPM. The problem of referrals has a fundamentally different legal regulation in the legislation of different countries. Depending on the features of this regulation, the following solutions can be distinguished:

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

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

3) states that provide for the possibility of using only a return reference (a reference to their 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 referrals in cases specifically stipulated in the law - Italy, Portugal, Switzerland, Sweden, Russia;

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

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

Most states of the world either in legislation or in judicial practice (Great Britain, USA) apply the theory of references, but apply it to a limited extent. Most often, states recognize only a retrograde delay, refusing to apply a reference to the law of a third state. The reason for this state of affairs is practical expediency: legal return (in accordance with the prescriptions of national and foreign conflict laws) allows the court to apply its own law, which greatly simplifies the dispute resolution process. A return reference, in essence, is a legal and technical opportunity to refuse the application of 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 referencing is one of the most important and complex problems, therefore it is necessary to unify the rules on remittances at the international level. The 1995 Hague Convention regulating conflicts between national law and law of domicile is one of the attempts to resolve the problem of “hidden” conflicts in the “personal law” attachment formula. This attempt was unsuccessful. The Convention did not enter into force and did not have a noticeable impact on national legislation.

In domestic legislation, it is established that any reference to foreign law is considered as a reference to material, and not to conflict of laws law (clause 1 of article 1190 of the Civil Code). An exception is the return of foreign law can be applied in cases of reference to Russian law, which determines the legal status of individuals (clause 2 of article 1190 of the Civil Code). Thus, the Civil Code recognizes only the sending of the first degree in cases strictly defined by law. It seems that this rule should be interpreted as dispositive, since the refusal to recognize the 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 exclusion from the application of references: they are not applicable in contractual obligations. The reason for this establishment is that the general general collision binding of contractual obligations is the autonomy of the will of the parties. The theory of law is incompatible with autonomy of will, since the parties, when choosing a law, have in mind precisely a specific substantive regulation. The use of law is capable of perverting the autonomy of will, since the establishment of a conflict of laws law 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 international law (The Hague Convention on the Law Applicable to Contracts for the International Sale of Goods, 1986), and in national laws (Introductory Law to GGU).

3.9. Establishing the content of foreign law

The regulatory process for NPOs 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 on the basis of the prescriptions of the conflict of laws rule of law of the country of the court. The second stage is the direct application of the chosen law. If a foreign law is recognized as competent, specific problems will inevitably arise: the definition of general concepts of the law of another state; establishing its content; peculiarities of interpretation and application of foreign law. General provision - the court is obliged to establish the content of foreign law ex officio (ex officio) in order to determine the legal basis of the future judgment.

The 1968 European Convention on Information on Foreign Law establishes a procedure and mechanism designed to facilitate access by courts to information on foreign law. The participating States are obliged to create, under the ministries of justice, special departments or independent departments that collect information on foreign and national law; responding to requests from the relevant foreign and national authorities about the content of national and foreign law; sending inquiries to the competent authorities of foreign states about the content of the law of these states. For this purpose, a special Research Center for Legal Information has been established in Russia under the Ministry of Defense 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, SK and APK. The court, in accordance with its powers, is obliged to independently determine the content of foreign law. The mechanism of this process is diplomatic order, official inquiries through the Ministry of Justice of Russia, direct communications of 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 the doctrine of the state concerned (paragraph 1 of article 1191 of the Civil Code). It is also necessary to take into account foreign jurisprudence.

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

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

Topic 4. SUBJECTS OF INTERNATIONAL PRIVATE LAW

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

The subjects of the majority of private private enterprises with a foreign element are individuals. The following categories of individuals are defined in the MPP: foreign citizens, stateless persons, bipatrides, refugees. Foreign citizens are persons who have a legal relationship with any state; bipatrides - persons who have a legal relationship with two or more states; stateless persons - persons who have no legal connection with any state; Refugees are persons forced for certain reasons (specified in the law) to leave the territory of their state and have received asylum on the territory of another. The legal status of bip-trid and stateless persons has serious specificity. In international law, it is assessed as a complicated status, international legal pathology.

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

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

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

The personal law of persons with dual citizenship, one of which is Russian, is Russian law. The personal law of foreign citizens can also be Russian law if the foreigner has a place of residence in the Russian Federation (clause 3 of article 1195 of the Civil Code). The personal law of a stateless person is determined on the basis of the sign of domicile (clause 5 of article 1195 of the Civil Code). Such a norm is common to the legislation of most states, but this legal provision raises a problem. How to determine the personal law of a stateless person in the absence of a permanent place of residence? The law of domicile is also applied in determining the personal law of the bipatrid (clause 4 of article 1195 of the Civil Code). The personal law of an individual with refugee status is the law of the country of asylum (clause 6 of article 1195 of the Civil Code).

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

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

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

4.2. Civil capacity of individuals in private international law

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

In Russian law, the civil legal 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 CC. 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 capable by the law of the state of the place of the transaction (clause 2 of article 1197 of the Civil Code). A foreigner's reference to his lack of legal capacity under his personal law shall be taken into account as an exception if it is proved that the other party knew or should have known about the lack of legal capacity. This norm is connected with one of the general principles that have long dominated the international private sector: a person who is capable according to his personal law is always recognized as capable abroad; a person who is incapacitated by his personal law may be recognized as capable abroad.

The limitation 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 incapacitated or partially incapacitated 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 foreigner's homeland 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, the recognition of an individual as incapacitated or partially incapacitated is subject to Russian law (clause 3 of article 1197 of the Civil Code). Foreigners in Russia may be subject to limited legal capacity provided that the competent authorities of the state of citizenship of such a person are notified of the grounds for limiting legal capacity and the consent of the state of citizenship to legal proceedings in the Russian Federation. The grounds for limiting legal capacity must be the same under the laws of both states. In addition, foreigners who have a permanent place of residence on the territory of the Russian Federation may be subject to 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, the 1993 Convention on Legal Assistance in Civil, Family and Criminal Cases of the CIS Countries, the Agreement on Legal Assistance between the Russian Federation and the Polish Republic of 1996 and etc.). Almost all international agreements contain an additional conflict of laws link - “the law of the competent institution”.

A very serious problem of modern PPM is the institution of an unknown absence and the declaration of missing persons as dead. In international law, there are both multilateral (the Convention on the Declaration of Dead or Missing Persons, 1950) and bilateral agreements regulating this issue. In multilateral and bilateral treaties on legal assistance, conflict of interest issues of an unknown absence are resolved on the basis of personal law or the law of the court. 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 some cases expressly provided for in the agreement, the court of the other contracting party is competent (Article 23 of the Russian-Polish agreement on legal assistance, 1996), and the applicable law is the law of the court.

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 guardianship is established over minors and citizens with limited legal capacity (Article 33 of the Civil Code). Conflict regulation of guardianship and trusteeship is provided for in Art. 1199 CC. 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 (curator) is applied to establish his obligation to take custody (guardianship). The law of the competent institution defines the relationship between the guardian (custodian) and the ward (ward). The application of Russian law is legislatively enshrined if it is most favorable for the ward (ward) who has a place of residence in the Russian Federation.

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

4.3. Legal status of legal entities in private international law

Taking into account the role that legal entities play in international, economic relations, they are the main subjects of MPP. The specificity of the legal status and activities of legal entities is 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 statute of legal entities is known to the law of all states and is practically everywhere defined 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 meet its obligations, issues of internal relations, reorganization and liquidation (paragraph 2 of Art. . 1202 GK). Legal entities do not have the right to refer to the restriction of the powers of their bodies or representatives to complete the transaction, unknown to the law of the country where the transaction was made, unless 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 the given legal entity (personal law) and the system of national law of the state of the place of business (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) the theory of incorporation - a legal entity belongs to the state on whose territory it is established (USA, UK, Canada, Australia, Czech Republic, Slovakia, China, Netherlands, Russian Federation);

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

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

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

Such a multivariate understanding of the conflict of laws principle "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 “double nationality”, double taxation, the impossibility of declaring a company bankrupt or seizing its authorized capital. For example, a legal entity registered in Russia and carrying out its main production activities in Algeria will have a dual nationality: under Algerian law (in accordance with the theory of the center of operation) such a company is considered a person of Algerian law, and under Russian (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 tax domicile.

4.4. Specificity 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 are associated with the definition of the personal law of TNCs. On the one hand, they are created by the law of a particular state, on the other, their subsidiaries and grandchildren operate as independent legal entities in other states. TNCs are international in nature not only in terms of their field of activity, but also in terms of capital.

TNCs represent the most complex multistage vertical: the parent corporation (national legal entity), subsidiary holding (ownership, joint-stock) companies (legal entities of the same or other states), grandchild production companies (legal entities of third countries), great-grandchildren holding companies (legal entities of the 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, TNK 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: the industrial unity is formalized by the 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 of such an association only when using the theory of control (which is enshrined in the legislation of far from all states): according to the personal law of the parent company. At present, the concept of "TNC law" is widely used in doctrine and practice. This concept means the application to the establishment of personal law and the activities of such companies not the national law of a state, but international or “quasi-international” law, “general principles of law”, “general principles of international law”. This concept seems to be the most functional, especially since it is at the international level that the TNC Code of Conduct has been developed.

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

One of the main features of an offshore company is, on the one hand, an absolute prohibition for foreign companies to attract local capital and conduct business in the state of registration, and, on the other hand, the mandatory involvement of the local population in managing such companies and using the services of local legal (registration) firms. Most offshore zones have special company laws governing the legal status of offshore registered foreign firms (for example, British Virgin Islands - International Business Companies Ordinance 1984, Companies Management Act 1990, etc.). In many states, offshore companies are opposed to legal entities of national law (Great Britain, Cyprus, Bahamas). Industrialized countries have a rather negative attitude to 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, anti-offshore legislation has been adopted in many countries (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 combating offshore companies began in the mid-1980s. XX century In Russia, the Federal Law of 07.08.2001 No. 115-FZ "On Counteracting the Legalization (Laundering) of Criminally Obtained Incomes and the Financing of Terrorism" was adopted.

One of the main reasons for the fight against offshores is to use them to launder 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 offshores is carried out at the international level using the mechanism of international organizations - the OECD and the FATF.

Offshore jurisdictions are divided into “respectable” (having anti-money laundering legislation and not allowing “dubious companies” on their territory - the Bahamas, Singapore, Luxenburg, Hong Kong, Switzerland) and “unrespectable” (there is no anti-money laundering legislation money laundering - Jersey, Guernsey, Maine, Liberia). For example, in the Cayman Islands (a respectable jurisdiction) a law has been passed that requires the consent of the national government of a company to register it as offshore, even if the company is not going to do business in its home country.

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

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

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

State transactions have a special legal regime. The peculiarities of the legal regulation of the private law activity of the state are predetermined by its sovereignty. Entering into civil law relations, the state does not lose its qualities as a sovereign. Sovereignty presupposes that the state has a whole range of immunities. In the XIX century. in the doctrine of law, the theory of absolute immunity of the state was developed. In accordance with this theory, the state as a subject of civil law relations has the following immunities:

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

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

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

4) property of the state - property of a foreign state is inviolable, cannot be nationalized, confiscated, it cannot be foreclosed. Without the consent of the owner state, his property cannot be subject to compulsory alienation, forcibly held on the territory of a foreign state;

5) the doctrine of an act of the state (connected with 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 the property actually belongs to the state if it claims that the property belongs to it. According to the state's conflict of laws immunity, only its own law should be applied to the state's NPO. All transactions of the state are subject to its national law.

In practice, the doctrine of absolute immunity can be applied only when the state is actually not a subject of civil legal relations and participates in them in extremely rare cases. In the second half of the XX century. the degree of state participation in civil relations has sharply increased, which was the reason for the emergence in the doctrine of theories of "official immunity", "trading state" and the doctrine of functional (limited) immunity. 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 commercial transactions on its own behalf, it automatically waives immunity with respect to such transactions and related property 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 made decisions on limiting the immunity of the state acting as a participant in international civil legal relations. These decisions are based on the doctrine of functional immunity: a foreign state acting as a merchant can be brought to court on a general basis, its property on the same grounds can be subject to collection, and its transactions are not removed from the scope of local law even without the consent of the relevant foreign state.

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

The main international legal act regulating state immunities is the European (Brussels) Convention on State Immunity 1972, adopted by the Council of Europe. The theory of functional immunity is explicitly enshrined in the Convention: the preamble of the Convention explicitly indicates that states parties take into account the tendency in international law to limit the cases when 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 a court of another state when it enters into a private private enterprise with foreign persons. The Convention establishes a wide, detailed list of such relations.

Work on the codification of legal norms on the jurisdictional immunities of states and their property has long been carried out in the UN International Law Commission. The Commission prepared Draft Articles on Jurisdictional Immunities of States and Their Property (based on the doctrine of functional immunity), which was approved in 1994 by a resolution of the UN General Assembly. 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 private enterprises, its performance as a subject of international private private enterprise, are that relations are exclusively civil in nature, and only a foreign private person can act as a counterparty to the state. In the modern world, the general principle is recognized: the state, participating in private private companies, acts in them on an equal footing with its counterparties. This provision is enshrined in Art. 124 and 1204 Civil Code. However, these norms of Russian law are of a dispositive nature and provide for the possibility of issuing laws establishing the priority rights of the state in private security organizations.

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

The current Russian legislation to date is based on the theory of absolute immunity (Art. 401 of the Code of Civil Procedure, Art. 251 of the Code of Civil Procedure), which is a complete anachronism and is one of the most serious obstacles to the inflow of foreign investment into the Russian Federation. The flaws in the legislation are to a certain extent leveled out by the provisions of agreements concluded by the Russian state with private foreign partners, in which the explicit, direct consent of the state to the limitation of its immunity is enshrined. International bilateral treaties of the Russian Federation on mutual protection and promotion of investments (with the USA, Hungary, South Korea, etc.) establish the mutual refusal of the subjects of the agreement from state immunities, the existence 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 volume of the international legal personality of the IMPO is naturally less than that of the member states; nevertheless, the organizations are included in the group of full and basic subjects of international law. However, any MMPO also has a private-law status and acts as a subject of MPP.

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

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 the LMP. The private-law status of an organization is enshrined in its charter, which is an international treaty. In the future, the status of MMPOs as international legal entities is enshrined in international agreements with the participation of these organizations and in legal acts adopted by MMPOs themselves. International legal entities are bearers of civil rights and obligations arising in international circulation, have separate property, can acquire property and personal non-property rights and obligations on their own behalf, act as plaintiffs or defendants in private law disputes in law enforcement agencies.

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

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

The law applicable to transactions involving MMPO is determined on the basis of the autonomy of the will of the parties and the law of the place where the transaction is 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, conflict regulation of civil legal relations with the participation of MMPO is subject not only to national, but also to international law. In 1975, the UN Secretariat Committee on Contracts developed Model Rules and Model Contracts for all MMPOs of the UN system. A special opinion of the Legal Division of the UN Secretariat (2002) emphasizes that “UN contractual practice, whenever possible, seeks to avoid reference to any specific law, especially national. The most acceptable is the reference to the internal law of the organization. "

The ownership of MMPO is fixed, as a rule, in an international agreement between the organization and the state of its place of residence. The initial beginning of the conflict 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 linkage 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 property rights of MMPO. In the same way, it is customary to interpret the law of the place of the conclusion of the transaction - the law of the place of the conclusion of the contract in the international region.

The principle of autonomy of will is fully applicable to transactions with the participation of MMPO. The modern contractual practice of MMPO testifies to a steady tendency to abandon the application of national law and the subordination of the transaction to international law, general principles of law, general principles of international law.

Concept and subject of MPP

MPP Subject of any science subject of MPP signs of the subject of MCHP

Characteristics of the foreign element in the MPP

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

MPP structure

Block system(structure): 1. Conflict rules. 2. Unified substantive legal norms. 3. (controversial) International civil procedure - procedural rules for the consideration of cases with a foreign element.

Conflict problem in MPP and ways to overcome it. Types of collisions

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

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

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

Sources of PPM in the countries of the continental legal family.

1) International treaties

3) Custom

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

Sources of PPM in common law countries

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

Legal aid treaties with the participation of Russia

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

Customs as a source of MPP

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

Form of the transaction in MPP

Article 1209. Law applicable to the form of a transaction

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

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

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

UNIDROIT principles

In 1994, the International Institute for the Unification of Private Law (UNIDROIT), as a result of 20 years of work, created the Principles of International Commercial Contracts, also called the Unidroit Principles. The UNIDROIT Principles represent a completely new approach to international trade law as they are not an international convention subject to ratification by signatory states. It is a collection of international trade customs, the so-called. "Lex mercatoria", assembled and standardized. The provisions of the Unidroit Principles can be divided into two parts: the first includes the fundamental principles common to all legal systems, and the second part includes the rules on the conclusion and execution of international commercial contracts, as well as the consequences of their failure, formulated in the form of providing the injured party with various means of protection. The UNIDROIT principles apply:1) if the parties have agreed that their agreement will be governed by these principles. Used in this case in the form of "contract law", which is especially useful when drafting contracts and negotiating by parties speaking different languages, from different legal systems. Management of the Principles is possible in pre-contractual work, when concluding and executing contracts, in the event of disputable situations and mutual claims. 2) if the parties have agreed that their contract will be governed by “general principles of law”, “lex mercatoria” or similar provisions (for example, “principles of natural justice”). 3) in the event that the contract does not contain an agreement on the choice of applicable law. 4) can be used to interpret and replenish international unified legal documents, as well as serve as a model for national and international legislation (formed the basis of the Civil Code of the Russian Federation, Lithuania, Argentina, Tunisia, Quebec, etc.)

Incoterms-2000 ": EXW term

EXW - Ex works - ex works (ex works)

The seller is deemed to have fulfilled the obligation to deliver at the time the goods are presented to the buyer at his enterprise, the duties of loading, transportation, customs formalities are on the buyer.

Incoterms-2000 ": FCA term

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

The seller is deemed to have complied with the delivery obligation when the goods are handed over to the carrier. Customs clearance for export - at the seller, for import - at the buyer, the buyer pays for the carriage.

Incoterms-2000 ": FAS term

FAS - Free alongside ship - free alongside the ship

The seller is deemed to have complied with the delivery obligation when the goods, which have passed customs clearance, are placed alongside the ship at a specified port. Loading, transportation and import license on the buyer.

Incoterms-2000 ": FOB term

FOB - Free on board - free on board

The seller fulfills his duty at the moment the goods pass over the ship's rail at the agreed port of shipment. At the seller delivery and loading. Everything on board is a customer. Export license for the seller. The shipping and import license is on the buyer's side.

Incoterms-2000 ": CIP term

CIP - Carriage and insurance paid to

The seller pays for the carriage and insurance of the goods to the agreed place of destination, but the risks are transferred when the goods are handed over to 1 carrier. The export license is the seller, the import license is the buyer.

Incoterms-2000 ": CPT term

CPT - Carriage paid to - carriage paid to

The seller pays for carriage to the specified destination, but the risks are transferred when the goods are handed over to the first carrier. The export license is the seller, the import license is the buyer.

Incoterms-2000 ": CIF term

CIF - cost, insurance and freight

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

Incoterms-2000 ": CFR term

CFR - Cost and freight

The seller is deemed to have discharged the obligation when the goods cross the ship's rail at the agreed port of shipment, but the seller pays for the delivery of the goods to the agreed point. The export license is issued by the seller, the import license is issued by the buyer.

Incoterms-2000 ": DDU term

DDU - Delivered duty unpaid - delivery without payment of duty

The buyer carries out customs clearance for import.

Incoterms-2000 ": DAF term

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

The seller is obligated to deliver at the time of arrival of the goods, cleared for export, unloaded from the carrier's vehicle at the agreed border crossing point. It is the buyer's responsibility to unload and import license. Transport - any other than water transport.

Incoterms-2000 ": DEQ term

DEQ - Delivered ex quay - delivered from berth (free on berth)

The seller is obligated to deliver when the goods are delivered to the berth at the agreed destination. The import license is paid by the buyer.

Incoterms-2000 ": DES term

DES - Delivered ex ship - delivery ex ship

The seller is obliged to deliver at the moment the goods are delivered to the buyer on a ship arriving at the port of destination. Import License - Buyer.

Incoterms-2000 ": DDP term

DDP - Delivered duty paid - delivery with payment of duty

The seller takes over upon delivery of the goods to the agreed destination.

The seller carries out customs clearance for import.

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

Incoterms-2010 ": DAP term

DAP - Delivered at point - delivered to the set point

Delivery of goods to the agreed destination.

Import customs clearance is the buyer's responsibility.

Incoterms-2010 ": DAT term

DAT - Delivered at terminal - delivered to the terminal

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

Preparation of inheritance with a foreign element: civil law methods of inheritance optimization

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

Consular marriages

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

Lame "marriages

Lame marriages- marriages that give rise to legal consequences in one state and are considered invalid in another. This problem stems from the fact that many countries do not recognize the form and order of marriage, if they differ from their national regulations. For example, in Israel, mixed marriages contracted abroad are recognized only if the wedding took place in a synagogue. Limp marriages are a serious destabilizing phenomenon in international life, generate legal uncertainty and have negative consequences. An attempt was made to eliminate these shortcomings with the help of the 1995 Hague Convention on the Settlement of Conflicts of Laws in the Field of Marriage. joined.

Legalization of documents

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

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

Basic rule for establishing jurisdiction- This is the territorial jurisdiction at the place of residence of the defendant (paragraph 2 of Art. 402 Code of Civil Procedure). Alternative jurisdiction- the rule of choosing the jurisdiction for the dispute, which can be considered in the courts of several states and the parties have the right to choose the jurisdiction. The Arbitration Procedure Code of the Russian Federation (Art. 247) and the Code of Civil Procedure of the Russian Federation (Art. 402) contain additional features that allow attributing the case to the competence of Russian courts.

117. Rules for determining jurisdiction: exclusive jurisdiction

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

118. Rules for determining jurisdiction: negotiated jurisdiction

Contractual jurisdiction- determination of jurisdiction on the basis of an agreement of the parties in favor of a court of any state. The negotiated jurisdiction is formalized in propogation and derogation agreements. Derogation agreement- this is the exclusion of the case from the competence of the court of a given state (although it is within its jurisdiction under local laws) and transferring it to the court of a foreign state. Propagation agreement- a case that is outside the jurisdiction of a local court according to the laws of a given state (jurisdictional to the courts of another state), in accordance with the agreement of the parties, is referred to this particular court. Any prophetic agreement is at the same time derogatory. As a general rule, a prophetic agreement cannot change the generic (subject) jurisdiction.

Arbitration agreements

Arbitration agreement represents the agreed will of the parties to refer the dispute between them to the ICA for consideration. The specificity of the ICA lies in the voluntariness of applying to arbitration and, at the same time, in the binding nature of the arbitration agreement. The peculiarity of the arbitration agreement: it is strictly obligatory for the parties and they cannot avoid referring the dispute to arbitration; a court of general jurisdiction may neither cancel the arbitration agreement nor reconsider the decision of the arbitration on the merits. Types of Arbitration Agreements:

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

2 . arbitration record- this is an agreement of the parties to arbitrate an already arisen dispute, separate from the main contract. This is the most preferred type of arbitration agreement, since the parties' agreement to arbitrate is concluded when a disagreement has already arisen and the parties clearly represent the nature of the dispute.

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

Concept and subject of MPP

MPP- an independent, polysystemic, complex branch of law that combines the norms of international and national law and regulates international relations. Subject of any science- social relations, which this science studies and regulates. For subject of MPP it is characteristic that these social relations are developing in the international sphere (complicated by a foreign element). Also a distinctive feature is their character - private law (powerless). These are mainly civil law relations governed by the norms of civil law. To a large extent, private law includes family and marriage, labor, land relations, relations regarding property and related non-property rights. These relations most often arise between the FL and the LE, in some cases the subject-state. These relationships are also called cross-border. Since these public relations are international, the ways of their regulation are considered by the legislation of different states in different ways. And the main goal of MPC is to resolve these collisions. Based on this, we can name the following signs of the subject of MCHP: - these relations are international; (related to the legal systems of different states); - they are private law.

The place of MPP in the legal system: points of view

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

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

International - means the presence of a foreign element;

Private - indicates the nature of the regulated relationship;

Law - defines a system of legally binding rules.

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

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

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

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

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

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

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

Private international law is closely related to public international law, since relations between subjects of domestic law exist in international life. A number of issues on which states with different legal systems were able to reach a compromise are resolved through the conclusion of international agreements. International treaties can contain both substantive and conflict-of-law rules. The court, applying the international conflict of laws rule, will be forced, however, as in the application of the national conflict of laws rules, to choose subsequently the corresponding substantive law, which will make it possible to resolve the dispute on the merits.

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

At the present time, which is often called the era of globalization of international economic relations, private international law is becoming increasingly important. The opinions of various specialists in the field of study differ in determining whether or not private international law (IPL) is an independent branch of law. Some authors attribute it to independent branches of Russian law, others consider it a complex legal system, and still others believe that this is not a right, but purely technical rules on the choice of legislation. Analyzing various statements, one can come to the conclusion that all the same, private international law refers rather to a complex legal system, which includes conflict and substantive rules of several branches of private law (civil, family, labor and civil process).

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

International private law:

regulates private law relations (relations of a civil law nature in the broad sense of the word) arising in the conditions of international life (complicated by a foreign element);

has its own subject and method of regulation;

is a complex legal system consisting of conflict of laws and substantive rules of several branches of law;

unites institutions that are a kind of continuation of institutions of private (civil, family, labor) law, to a certain extent derived from the latter, they do not merge with them and do not dissolve in them;

closely related to international public law, but not part of it.

Subject private international law is the regulation of civil relations complicated by a foreign element.

An essential feature of private international law is the methods by which regulation takes place. Under method of legal regulation means a set of means and methods by which the law affects social relations, regulating them. In private international law, a unique conflict-of-law method is combined with a substantive one.

Private international law owes its origin and further development to the conflict method. In legal relations with a foreign element, the so-called conflict issue always arises: it is necessary to decide which of the two conflicting laws is to be applied - in force in the territory where the court considering the case is located, or a foreign law, that is, the law of the country to which the foreign element belongs in the case in question.

"Collision"- Latin word meaning "collision". This implies the discrepancy between the norms of the laws of different countries and the need to choose between them when considering a controversial legal relationship with a foreign element. In other branches of law, issues of conflict of laws are of secondary importance. In international law, solving a conflict of laws problem is one of the main goals.

A conflict can be eliminated by using conflict rules indicating which law is to be applied in a particular case. Consequently, the conflict of laws norm itself is of a reference character to material norms, it does not essentially solve the issue.

With the help of the substantive method, the already directly disputed material legal relationship is settled. With the substantive method, special regulation is always applied, and with the conflict of laws - general regulation.

The unification of conflict of laws and substantive legal norms as part of private international law is based on the need to regulate relations that are homogeneous in nature in two different ways.

In addition to the substantive legal norms of international agreements, private international law includes the substantive legal norms of domestic legislation specifically designed to regulate civil relations with a foreign element. These standards include:

Norms governing foreign economic activity;

The norms defining the legal status of various enterprises with foreign investments established in Russia;

Norms concerning the regime, investments, investment activities of Russian organizations;

The norms defining the status of Russian citizens abroad;

The norms defining the rights and obligations of foreign citizens and organizations in Russia in the field of civil, family, labor and procedural law.

If an international treaty of the Russian Federation contains substantive legal norms to be applied to the corresponding relation, the definition on the basis of conflict of laws rules of law applicable to issues fully regulated by such substantive legal norms is excluded (part 3).

Forms of implementation of methods of private international law:

National legal - through the adoption by the state of conflict of laws rules;

National legal - through the adoption by the state of the substantive norms of private law;

International legal - through unified conflict of laws rules adopted by international treaties;

International legal - through the creation of civil law norms of the same content, that is, unified (uniform) material norms.

The main trends in the development of private international law:

Striving for the unification of legal norms through the adoption of international treaties and model laws;

The emergence of a conflict between the norms of international treaties in the field of PPM;

Improvement and codification of MPE norms at the national level;

The growing role of the principle of autonomy of the will of the parties, the transition to more flexible rules of conflict of law;

Expansion of the scope of private international law (space activities, nuclear energy, transport, communications, etc.).

Previous

In the domestic doctrine, it is customary to talk about dividing the system of national law into two subsystems (two super-branches) - public and private law. Currently, this division should be approached with more caution. The modern national legal system is immeasurably more complex and shows the following trends:

• - the formation of "complex", "mixed" (entrepreneurial, joint-stock, banking) branches of national law;
• - the formation within the public law branches of an integral set of norms governing private law relations (customs law is the institution of "customs agreements");
• - "publication" of private law relations: the growth of the public law component in the regulation of relations between private individuals (family, labor law).

Any branch of public law has in its composition private law categories, and any branch of private law has elements of "publicity". Ultimately, all branches of law represent a reasonable balance between "public" and "private". Any holistic set of norms (including MPP) "is characterized by a mixed character - partly public, partly private."

Foreign lawyers do not emphasize the distinction between public and private law. This is most clearly manifested in the American theory of "government interest": the state is interested in the application of not only its public, but also its private law.

Without abandoning the traditional division of law into private and public, in modern conditions it seems more productive to single out not private law or public law branches, but branch systems of national law. We can talk about the existence of independent subsystems in the system of national law: the system of state law (constitutional, electoral, municipal), the system of financial law (currency, budget, tax), the system of civil law (civil, commercial, entrepreneurial, corporate).

In the system of national law, it is advisable to single out the PPM system as an independent subsystem: MPL in the narrow sense, conflict law, transnational bankruptcy (international bankruptcy law), international notary law, international civil procedure, international commercial arbitration. This division corresponds to legislative approaches that enshrine the "broad concept of MPP", simplifies the solution of questions about the nature of MPP and its regulatory structure.

In the domestic literature, attempts to divide the normative array of MPP into industries and subsectors appeared in the 1970s and 1980s. (for example, A. L. Makovsky proposed to separate international private maritime law as an independent branch of international private law). Many representatives of modern Russian science support such a division: M.M. Boguslavsky believes that the set of rules governing property relations in the field of merchant shipping is a sub-sector of the international private sector. International private labor law acts as an independent sub-branch of international private law: "A high degree of isolation characterizes the complexes of international private law in the field of merchant shipping, labor relations (systems of these norms are often referred to as" international private maritime law "," international private labor law " ) ".

MPP is a "tangle of contradictions and problems", "a hybrid in jurisprudence," therefore, when characterizing the MPP system, the concepts of "industry - sub-industry - institution" should be used conditionally, without applying formal criteria. This approach does not correspond to the definitions adopted in the domestic doctrine, it is controversial and ambiguous. However, any theoretical constructions in the field of MPP are a priori controversial and ambiguous. There is no unanimity in the doctrine on the fundamental, fundamental issues of MPP, all the more there is no uniform understanding of the categories "industry" or "institution" of MPP. Perhaps today there are no objective grounds for separating independent entities (industries and subsectors) in the MPP, but de lege ferendae, such a division will be in demand.

The first element in the PPL system is private international law in the narrow sense (the PPL itself), which is a sector of PPL as a system of law. MPP in the narrow sense consists of general and specific parts, in each of which sub-sectors and institutions can be distinguished. The structure of the private law in the narrow sense is built according to the pandect system, which is typical for Russian private law. a common part includes the main theoretical categories (concept, subject, method, sources). Special part combines special (from the point of view of the subject of regulation) sub-sectors of MPP in the narrow sense.

The aggregate general theoretical categories of MPP can be designated as a sub-sector of MPP in the narrow sense. This sub-sector is divided into independent institutions. In domestic legislation, the general categories of MPP are enshrined mainly in Ch. 66 of the Civil Code of the Russian Federation:

• - the subject of international private law (art. 1186);
• - methods of private practice (art. 1186);
• - principles of private law (art. 1188,1189,1194, 1196,1210);
• - sources of MCP (Art. 1186).

The special part of the LSP in the narrow sense consists of special subsectors:

• - the right of persons (subjects of international private law);
• - international property law;
• - international contract law;
• - international private transport law;
• - international private currency law;
• - international intellectual property law;
• - international private labor law;
• - international tort law;
• - international inheritance law;
• - international family law.

In the domestic doctrine, similar proposals are expressed: "The PPM system consists of general and special parts. The general part includes: the basic concepts of PPM; types of PPM sources; the doctrine of conflict rules, conflict rules and their types, types of conflict links, conditions for the application of conflict rules .. legal status of subjects ... The special part covers certain types of legal relations with a foreign element ... The norms of the special part are formed into the institutions (sub-branches) of PPM, focused on the regulation of related legal relations. commercial (trade) law, international banking law, international currency law, international intellectual property law, international insurance law, international transport law, international investment law, international legal regulation of the securities market, international family law, between people's inheritance law, international corporate law, international legal regulation of insolvency procedures, international property law, international tort law (international legal regulation of obligations arising from harm), international labor law, international legal regulation of civil and arbitration procedural relations, etc. " ...

However, in the main, in the Russian doctrine of law, it is customary to speak not about "international treaty law", but about "the law of foreign trade transactions", not about "international private labor law", but about "labor relations in the international private sector". Nevertheless, a different terminology is often used: international commercial law, international bill of exchange law, international banking law, international private transport law, international private labor law, international family law. "

In the foreign doctrine of law, a similar terminology is also used (international property law, international contract law, international inheritance law, international family law). Such designations are laconic and convenient from the point of view of legal vocabulary. Of course, serious arguments can be made against the term "international tort law" in favor of the term "non-contractual obligations in the international private law", against the term "private international transport law" in favor of the term "international transport law". However, it should be borne in mind that the very term "private international law" is generally accepted, but by no means indisputable.

In addition, the application of the terminological constructions "international private labor law", "international private transport law" "international private currency law" to the sub-sectors of international private law allows them to be distinguished from practically the same institutions of public international law (international labor law, international transport law, international currency law ). The proposed terminology is far from indisputable, but science is based precisely on disputes, doubts and reflections. Science a priori cannot develop on the basis of "the only correct theory."

Special sub-sectors are divided into institutions: for example, private international transport law is subdivided into private international maritime law, road transport law, rail transport law, air transport law, multimodal transport law.

Conflict law is the central, fundamental branch of the entire LPM system. The purpose of PPM is to facilitate the coexistence of the law of individual states in terms of regulating relations between non-sovereign entities with a foreign element and to make it possible to coordinate them. Unilaterally defined jurisdiction, arbitrary declaration of an independent law, refusal to respect the existence of other legal systems lead abroad to a refusal to enforce the decisions of the courts of such a state and to a refusal to apply its law1. The application of the norms of foreign law is the central problem of PPM, which is solved with the help of a special legal toolkit unknown to other legal systems - conflict of laws. The presence of conflict norms in the normative structure constitutes a "monopoly" of MPP.

Conflict law is the most voluminous, complex and important part of an international private law. In the doctrine, the main achievement of the international private law is that, with the help of conflict of laws rules, states managed to overcome "legal nationalism", the closed nature of national legal systems and the subordination of all legal relations with a foreign element to the law of the country of the court2.

In the decisions of the Permanent Chamber of International Justice in the cases of Serbian and Brazilian loans in 1929, it is emphasized that PPM is, first of all, a conflict of laws law aimed at resolving conflicts of different national laws. Conflict rules ensure the interaction of the legal order of different states, the international legal order and the system of international law. This "classic toolkit" can be considered within the framework of the PPM as its independent subsystem - conflict of law3.

In the Constitution of the Russian Federation (clause "p" of Art. 71), the term is used federal conflict of laws law. This allows us to assume that the domestic legislator does not include conflict of laws in the international private law and enshrines the independent nature of conflict of laws in the Russian regulatory system. However, according to the majority of domestic researchers, this provision of the Constitution means the resolution of conflicts between various Russian laws; this norm does not apply to relations connected with foreign legal order. At the same time, the norm of clause "p" of Art. 71 can be interpreted as if there is a separate branch of "federal conflict law" in Russian law. But in sect. VI "International Private Law" of the Civil Code of the Russian Federation, this position is not reflected. This legislative act reduces the norms of international private law exactly to the conflict of laws norms. Civil law does not position conflict law as an independent branch of Russian law.

From the point of view of Russian civil law, MPhI is identified with conflict of laws law.

Conflict law is the foundation of PPM, its primary source and basis. Conflict rules predetermine the application of substantive legal norms, and the conflict of laws method of regulation preserves its dominant position. Due to its importance, conflict of laws law in the PPM system occupies a special place - a set of conflict of laws rules can be considered not only an independent industry, but also an independent subsystem of PPM. The designation of conflict of law as a branch of MPP is aimed at achieving terminological uniformity when characterizing the structural elements of MPP.

The main body of conflict of laws rules is MPP in the narrow sense. Conflict law as a branch of the PPM system consists of the theory of conflict of laws ("the doctrine of conflict of laws") and the foundations of the application of foreign law.

A separate conglomerate of conflict of laws rules is present in every branch of MPP - in cross-border bankruptcy, international notary law, international civil procedure, international commercial arbitration. However, the number of such norms is insignificant, their application has not been worked out, this issue is legally regulated in a few countries. It seems inappropriate to single out, for example, procedural conflict of laws rules and include them in conflict of laws law as a separate branch of international private law. It is also impossible to talk about their isolation within the relevant sectors of the MPP.

From the point of view of law enforcement, MPP cannot be compared with any other legal system - only in MPL there is a problem of application of foreign law. The application of the law of another state, based on the initial application of national law (conflict of laws rule), is a most complex, in many ways paradoxical phenomenon, inherent only to the international private law. The set of rules governing this process should be distinguished into a separate sub-sector of conflict of laws law - bases of application of foreign law. This sub-sector includes the institutions:

• - qualification of legal concepts (Art. 1187 of the Civil Code of the Russian Federation);
• - collisional reciprocity (Art. 1189 of the Civil Code of the Russian Federation);
• - the institution of return sending (Art. 1190 of the Civil Code of the Russian Federation);
• - establishing the content of foreign law (Art. 1191 of the Civil Code of the Russian Federation);
• - clause on public policy in a positive and negative sense (Art. 1192.1193 of the Civil Code of the Russian Federation).

International bankruptcy law (transnational bankruptcy, cross-border insolvency) is an independent branch in the PPM system. In the normative structure of the international private law, the norms governing international competition law occupy a special place due to their material-procedural nature. Some national codification acts specifically emphasize the inclusion of relations in the sphere of transnational bankruptcy in the subject of regulation of MPP legislation (Belgium, Switzerland, Romania, Czech Republic). Modern trends in the regulation of cross-border insolvency make it possible to speak of it as an independent branch of the international private sector.

International notarial law (notarial actions in the international private sector) is a set of rules governing the functioning of national notary bodies in the field of private law relations related to the legal order of two or more states. The rules governing notarial activities are of a procedural nature. It is too early to talk about international notarial law as an integral set of norms. Potentially, taking into account the current trends in the development of PPM, it can be assumed that international notarial law will take shape as an independent sector of PPM.

International civil procedure (international civil procedural law) is an independent branch in the PPM system.

Previously, the domestic doctrine was dominated by the position that IHL is part of the IHL as a branch of jurisprudence. From the point of view of sectoral affiliation, IHL was defined as a set of special norms of the national civil procedure. In modern Russian literature, the prevailing point of view is that MPhI regulates not only civil, family, labor, but also procedural rights of foreign individuals and legal entities, i.e. IHL is included in the structure of the IHL2. In the German doctrine, IHL is considered an independent branch of national law: "International civil procedure ... is not an appendage of private international law. Rather, on the contrary, the former often has an advantage."

Modern national legislation on PPM simultaneously regulates IHL issues - the Hungarian PPL Ordinance (1979, revised 2010) emphasizes: “This Ordinance is adopted ... in order to define:

• - the law of which state should be applied if ... a foreign element participates in ... legal relations;
• - on the basis of what rules of competence and procedural rules should be considered legal disputes containing a foreign element. "

The Tunisian Private Law Code establishes: "The provisions of this Code are aimed at defining for international private law relations:

• 1) the judicial competence of the Tunisian jurisdictional authorities;
• 2) actions on the territory of Tunisia of foreign decisions and decisions;
• 3) immunities from jurisdiction and enforcement of judicial acts;
• 4) applicable law ".

The choice of national jurisdiction predetermines not only the procedural procedure for considering the dispute, but also the conflict-of-law regulation of the relevant relations. Substantive regulation, in turn, is impossible without a preliminary solution of procedural and conflict of laws problems. MPI is implemented precisely in law enforcement practice. This testifies in favor of combining MPP and IHL and makes it possible to single out IHL as an independent branch in the MPP system.

International commercial arbitration is a branch of international private law as a system of law. The norms governing the activities of ICA occupy a separate position in the MPP system.

ICA is a special, specific phenomenon of legal reality, a public, non-governmental organization, an arbitration court. An arbitration agreement (the basis of the ICA's competence) is a civil contract with procedural consequences. ICA has a mixed (substantive) nature, just like international competition law.

Many national IPP codifications lack rules governing commercial arbitration. In some states (China, Russia, Sweden), ICA activities are regulated on the basis of special laws. At the same time, no less number of national legislators include ICA issues in a single law on MPP (Switzerland, Turkey, Romania, Czech Republic). This path seems to be more effective, since the codification of the basic rules for regulating relations associated with foreign legal order, in one act, facilitates and accelerates the process of law enforcement.

The domestic doctrine expresses the point of view that ICA and IHL can potentially claim the status of subsectors in a separate branch of the MPE "protection of civil rights in international circulation" 1. This industry includes regulations governing government judicial and alternative remedies. However, both IHL and ICA are already integral, separate sets of norms that have their own subject matter and method of regulation, a stable structure, and even a system of special conflict links. It is more fair to position IHL and MCA as separate industries in the MPP system. In addition, IHL and ICA are fundamentally different institutions, so combining them into one branch of MPA is hardly correct.