scholarly journals ON THE INTERPRETATION OF THE TERMS «LAW» AND «LEGISLATION» IN THE CONTEXT OF THE AUTONOMY OF WILL OF THE PARTIES TO INTERNATIONAL PRIVATE LAW RELATIONS

2020 ◽  
pp. 151-167
Author(s):  
Tatyana V. Novikova ◽  
Keyword(s):  
Russian Federation ◽  
International Agreements ◽  
Private Law ◽  
International Treaties ◽  
Commercial Arbitration ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
International Private Law ◽  
The Russian Federation ◽  
Law And Legislation

As a general rule, an express written agreement on applicable law is the most successful in the event of a dispute. However, the wording of the agreement, particularly when terms such as «law» and «legislation» are used, can cause significant difficulties in the law enforcement process. The practice of Russian courts and the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation has established the position that the parties' choice of «Russian Federation law» means, first and foremost, their choice of international treaties of the Russian Federation which are an integral part of its legal system and, as far as they are concerned, of Russian regulations. Difficulties in the practice of the International Commercial Arbitration Court are caused by the interpretation of the phrase «Russian Federation law» used in applicable law agreements. In some decisions it is understood as covering only Russian regulatory acts, in others it is understood as implying also international agreements of the Russian Federation. This problem is most acute in the application of the Convention on Contracts for the International Sale of Goods, as the Convention allows the parties to exclude its application. This problem is compounded by the fact that the legislator himself uses various terms in formulating conflict of laws rules. For example, as part of the conflict of laws regulation of contractual legal relations with a foreign element, the Agreement of the countries of the Union of Independent States on the procedure for settling disputes related to business activities uses the term «legislation» and the Civil Code of the Russian Federation uses the term «law». In this regard, we support Oleg Malkin's position on the expediency of using the term «law» both in national conflict of laws rules and in international treaties concluded by the Russian Federation. We believe that if the parties choose the «legislation of the Russian Federation», the ap-plication of international treaties of the Russian Federation will only be justified if the parties themselves confirm that they did not intend to exclude their validity. In the absence of a common position of the parties on this issue, the court and the arbitral tribunal will be forced to interpret the said phrase in the light of its literal meaning and in the light of Art. 3 and 7 of the Civil Code of the Russian Federation as covering only domestic legal acts and excluding (if such exclusion is permissible) international agreements. While acknowledging that in a number of cases the parties to applicable law agreements do not see any difference between the terms «law» and «legislation», we will point out the following. In the absence of an agreed position on the contrary, an express agreement must be interpreted only in accordance with its literal meaning, and a party that does not understand such meaning will suffer the adverse consequences of its misunderstanding. In this regard, the parties to international private law relations should once again be reminded of the recommendation to formulate the texts of applicable law agreements as precisely and unambiguously as possible.

scholarly journals CONFLICT-LEGAL ISSUES OF REGULATION OF DEPRIVATION OF LEGAL CAPACITY OF INDIVIDUALS AND THE IMPORTANCE OF THIS STATUS FOR OTHER BRANCHES OF LAW

2021 ◽  
Vol 6(72) (3) ◽  
pp. 98-104
Author(s):  
A.V. Rudenko ◽  
A.V. Chaika
Keyword(s):  
Russian Federation ◽  
Legal Issues ◽  
Private Law ◽  
Legal Capacity ◽  
Legal Analysis ◽  
Conflict Of Laws ◽  
Foreign Countries ◽  
International Private Law ◽  
The Russian Federation ◽  
The Law

The article reviews the peculiarities of legal capacity of natural persons in international private law relations and the conflict of laws issues concerning the conditions of deprivation of legal capacity on the territory of different countries. The basic collision bindings that enable to determine the law to be applied and the collisions related to the interpretation and application of the relevant rules. The main problems arising in this area, which may serve as grounds for bypassing the law or not applying the rules, are analysed. In the article there is a comparative legal analysis of international normative legal acts and national legal acts that regulate the relations connected with the recognition of legal capacity of a citizen on the territory of different states (Estonia, Germany, Hungary and others are given as an example), and also considered the order of deprivation of legal capacity of citizens in the Russian Federation and foreign countries, , identified gaps and proposed ways to solve the identified problems, which are based on the fundamental principles of international private legal relations, such as providing foreigners with certain special regimes related to the empowerment of them with rights and obligations similar to the rights and obligations of citizens of the Russian Federation. Actions directed at convergence of legislation are seen as the most reasonable and affordable way to solve the problem.

scholarly journals INTERNATIONAL AGREEMENTS FOR THE PROTECTION OF FOREIGN INVESTOR

2017 ◽  
Vol 3 (4) ◽  
pp. 99-105
Author(s):  
Ирина Хлестова ◽  
Irina KHlyestova
Keyword(s):  
Russian Federation ◽  
International Agreements ◽  
Most Favored Nation ◽  
Foreign Investments ◽  
Legal Concept ◽  
Commercial Arbitration ◽  
Foreign Investors ◽  
International Commercial Arbitration ◽  
The Russian Federation ◽  
Definition Of

The article is devoted to the analysis of international agreements on questions of protection of foreign investments. The multilateral agreements are investigated in the indicated area. There is a detailed analysis of agreements concluded originally by the USSR and then by the Russian Federation. The author draws attention to the lack of a unified approach to the definition of the concept of “foreign investment”, which has evolved over time. It is argued that both national and foreign investments are an economic category and there is no single legal concept for them, similarly with respect to the definition of the term “an investor”. The guarantees to the foreign investors by virtue of bilateral international agreements on protection of foreign investments are investigated, in particular: most favored nation treatment, national treatment, payment obligation for compensation in case of nationalization, expropriation and other measures that have analogical characters, permission of disputes between an investor and a state accepting investment. The author comes to the conclusion that in international law there is no ordinary norm about investment disputes settlement by international commercial arbitration. The author analyzes changes to the Law of the Russian Federation of July 7, 1993 No. 5338-I on International Commercial Arbitration introduced as a result of the adoption of the Federal Law of December 29, 2015 No. 409-FZ. The article highlights the influence of state courts on the activities of international commercial arbitration, the expansion of the competence of international commercial arbitration and the filling of gaps in the 1993 Law on International Commercial Arbitration. The author believes that the expansion of the use of international commercial arbitration bodies ensures the creation of conditions to protect the interests of foreign investors.

THEORETICAL BASIS OF APPLICATION OF INTERNATIONAL AGREEMENTS OF RUSSIA

2021 ◽  
Author(s):  
Шадид Шахидович Муцалов
Keyword(s):  
Russian Federation ◽  
Theoretical Basis ◽  
International Agreements ◽  
International Treaties ◽  
Systematic Analysis ◽  
The Russian Federation ◽  
Theoretical Foundations

В статье обосновывается необходимость системного анализа процессов и теоретические основы применения норм международных договоров на территории Российской Федерации. The article substantiates the need for a systematic analysis of processes and the theoretical foundations for the application of the norms of international treaties on the territory of the Russian Federation.

scholarly journals Peculiarities of inheritance of deceased's property in international private law

2021 ◽  
pp. 39-42
Author(s):  
Halyna ANIKINA
Keyword(s):  
International Law ◽  
International Agreements ◽  
The State ◽  
Private Law ◽  
Time Of Death ◽  
Private International Law ◽  
International Treaties ◽  
The Third ◽  
International Private Law ◽  
The Relationship

Introduction. The paper is devoted to the study of the peculiarities of the inheritance of deceased property in private international law. The concept of “foreclosed property” is defined. The relationship between the terms “foreclosed property” and “dead heritage” has been clarified. Purpose. In private international law there are two theories (principles) of acquisition of ownership of foreclosed property: the theory of occupation and the theory of inheritance. The essence of each of the approaches to the inheritance of property by the state in private international law is clarified. The list of countries where the “principle of occupation of foreclosed property” is enshrined in law and the countries that apply the theory of inheritance on the principle of the closest connection. Results. The opinions of scientists on the expediency of applying each of the principles have been studied. It has been found that the most effective way to overcome conflicts over the inheritance of foreclosed property between states is through international agreements. In all international treaties governing the relations of inheritance with a foreign element in which Ukraine participates, the same solution to the issue of inheritance of foreclosed property by the state is enshrined. Movable property shall become the property of the Contracting Party of which the testator was a national at the time of death, and immovable property shall become the property of the Contracting Party in whose territory it is located. Conclusion. It is concluded that the application of the third principle of inheritance of foreclosed property in private international law – the “principle of splitting the hereditary statute”.

5 Applicable Law

2017 ◽  
Author(s):  
Kim Joongi
Keyword(s):  
New York ◽  
Default Rule ◽  
Private Law ◽  
International Arbitration ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
International Private Law ◽  
The Law ◽  
New York Convention

This chapter focuses on the choice and enforcement of applicable law in arbitration agreements. In international arbitration cases, Article V(1)(a) of the New York Convention provides that the validity of an arbitration agreement should be first determined under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made. Hence, if the parties have not chosen the applicable law for an arbitration agreement, ‘the default rule’ is that the law of the place of arbitration shall apply. This chapter addresses the question as it applies to Korea and considers cases where conflict or a misapplication of the law is in effect. Moreover, it also covers several cases in which courts have applied the Act on International Private Law (AIPL), Korea’s conflict-of-laws statute, to determine the applicable law.

scholarly journals Non-State Regulation in the Field of Cross-Border Agency Relations

2021 ◽  
Vol 16 (3) ◽  
pp. 168-176
Author(s):  
L. A. Mikhaylova
Keyword(s):  
Russian Federation ◽  
State Regulation ◽  
State Courts ◽  
Private International Law ◽  
Commercial Arbitration ◽  
Applicable Law ◽  
Cross Border ◽  
The Supreme Court ◽  
The Will ◽  
The Russian Federation

The choice of acts of non-governmental regulation as the applicable law in international commercial contracts has become a common practice. When resolving disputes between the parties, international commercial arbitration refers to non-national sources and resolves the dispute on their basis, in contrast to state courts, which excluded the application of non-state regulation as applicable law. The paper discusses the approach on the admissibility of choosing non-national sources as the applicable law in an international commercial agreement, set out in the resolution of the Plenum of the Supreme Court of the Russian Federation dated 09.07.2019 No. 24 "On the application of the norms of private international law by the courts of the Russian Federation." The question of the validity of expanding the principle of autonomy of the will of the parties is investigated. The author analyzes the choice-of-law clauses used in the ICC Model Commercial Agency Contract and the ITC Model Contract for an International Commercial Agency. The author concludes that there is a shift in the regulation of cross-border private law relations towards the application of non-state norms and rules when resolving disputes by state courts and the possibility of the emergence of contracts that are not subject to any legal system.

Determination of the Law Applicable to Foreign Economic Transactions under the Principle of the Closest Connection

10.12737/4828 ◽  
2014 ◽  
Vol 2 (7) ◽  
pp. 95-103
Author(s):  
Юлия Блинова ◽  
Yuliya Blinova
Keyword(s):  
Foreign Trade ◽  
Present Article ◽  
Russian Federation ◽  
Civil Code ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Applicable Law ◽  
Chamber Of Commerce ◽  
The Russian Federation

The present article focuses on questions of qualification of applicable law to foreign trade transactions on the basis of the principle of most significant connection if the applicable law has not been chosen by the parts. The meaning of the principle of most significant connection is made study of in national law, the meaning of the term “characteristic performance for the contract meaning” is defined by analyzing of different legal sources. Herewith attention is paid to the problems connected with the using of article 1211 of the Civil Code of the Russian Federation and precedents of the International Commercial Arbitration Court of the Chamber of Commerce and Industry of the Russian Federation are analyzed.

Legal Means to Prevent Unjustified Payment of Pensions to Citizens Living Abroad

2020 ◽  
Vol 17 (4) ◽  
pp. 53-64
Author(s):  
Oleg S. Kurchenko
Keyword(s):  
Social Security ◽  
Russian Federation ◽  
General Rule ◽  
International Agreements ◽  
International Treaties ◽  
National Legislation ◽  
Permanent Residence ◽  
Legal Method ◽  
Foreign State ◽  
The Russian Federation

Introduction. The legislation of the Russian Federation provides for the possibility of paying most types of pensions to those citizens whose place of permanent residence is a foreign state. At the same time, permanent residence of a pensioner abroad increases the risk of unjustified payment of pensions and creates the need to use additional legal means aimed at preventing such consequences. Purpose. The purpose of the study is to describe the system of legal means that are aimed at preventing unjustified payment of Russian pensions to citizens living abroad, and to analyze the provisions of Russian and international legal acts that establish these legal means. Methodology. To achieve these goals, formal legal (dogmatic) method and comparative legal method were mainly used. Results. The system of legal means to prevent unjustified payments to those Russian citizens who permanently reside abroad includes legal means provided for by national legislation and the norms of international treaties concluded by the Russian Federation. The first group is represented mainly by additional obligations of the beneficiary to inform the pension agency about maintaining the grounds for payment of pensions (especially the duty to confirm being alive), failure to which, as a general rule, constitute grounds for the suspension of payment of pension. The legal means stipulated in international legal acts are based on the interaction of the competent institutions of the Contracting parties and are implemented, as a rule, without the participation of the pension recipient. Conclusion. The expansion of the list of States with which Russia has concluded international agreements on cooperation in the field of social security and the improvement of national legislation in this area should help reduce the number of cases of excessive payment of pensions to citizens living abroad.

ADVANCE (PREVENTIVE) RECOGNITION (NON-RECOGNITION) OF FOREIGN JUDGMENTS UNDER ARTICLE 24 OF THE 1996 HAGUE CONVENTION

2020 ◽  
Vol 10 (5) ◽  
pp. 180-198
Author(s):  
M.L. SHELYUTTO
Keyword(s):  
Russian Federation ◽  
Simple Procedure ◽  
Hague Convention ◽  
Parental Responsibility ◽  
International Treaties ◽  
International Relocation ◽  
Applicable Law ◽  
Recognition And Enforcement ◽  
The Russian Federation ◽  
Russian Law

On 1 June 2013 the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children came into force. It provides for the recognition and enforcement of foreign measures for the protection of a child or his or her property. One of the original provisions previously not found in the international treaties of the Russian Federation is the possibility of preventive recognition of a foreign measure, which may require enforcement in the future (Art. 24). This option differs from objections against recognition known to Russian law and may be useful in international relocation cases and for cross-border contacts with a child. The article reveals the essence and significance of preventive recognition (nonrecognition). However, the implementation of the Convention in Russia, unlike some other States parties, was reduced to the designation of a Central Authority. Russian civil procedural legislation was not amended. This raises issues concerning the application of the mechanism set down in Article 24 of the Convention. The author proposes to apply mutatis mutandis the provisions of Chapter 45 of the Civil Procedure Code of the Russian Federation and to grant an exequatur in simple procedure taking into account earlier court examination and conclusion of the absence of grounds for non-recognition.

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