ПРАВОВАЯ ПРИРОДА СПОСОБОВ ПРАВОВОЙ ЗАЩИТЫ ЧЕРЕЗ ПРИЗМУ МЕЖДУНАРОДНОГО ГРАЖДАНСКОГО ПРОЦЕССА

Abstract

The paper argues that legal relief should be treated as a complex notion that has both substantive and procedural dimensions. This argument is illustrated by reference to international disputes as a situation where legal classification has immediate practical consequences. Building on this argument, the paper concludes that courts and tribunals have to apply both substantive and procedural laws when resolving issues pertaining to legal relief. The purpose of each particular legal rule should be decisive to determine its legal nature, while other approaches to legal classification, such as textual interpretation of legal rules, are open to criticism. The paper also reviews a number of practical cases which could be resolved based on the suggested approach to legal classification. In particular, it is argued that the mixed classification of legal relief is helpful to address potential conflicts between remedies available under foreign substantive law and the procedural apparatus of the forum court (lex fori). This approach is also potentially efficient in the context of transnational enforcement of arbitral awards and state court judgments, and in particular it can be used to justify the power of the enforcing court to adapt the relief ordered by the foreign award or judgment to the procedural tradition of lex fori.