Field Of Private International Law Research Articles

Peculiarities of regulation of various types of non-contractual obligations in the field of international private law

The article reveals certain types of non-contractual obligations (NCO) in the field of private international law (PIL). The common features and differences between certain types of NCO in Ukraine and other countries of the Romano-Germanic legal family through the usage of the comparative legal method are described. The article reveals such types of obligations in PIL as: tort/delict obligations; obligations arising out of unjust enrichment; obligations arising out of damage caused by a product, work, service; culpa in contrahendo; negotiorum gestio. The article substantiates that NCO arise, first of all, between persons who are not in a contractual relationship, or between persons who are bound by a contract, but the damage is not caused in connection with a violation of contractual obligations. The article reveals the main provisions of conflict regulation of NCO. The issue of refusal to use the general collision binding of the place of harm (lex loci delicti commissi) is being studied. Nowadays, instead of that collision binding, which was originally used for each type of non-contractual obligation, several alternative collision bindings are used. In addition to the law of the place where the tort was committed, the article also reveals the features of using such collision bindings as the citizenship of the parties or the place of residence of the parties of the legal relationship, the place of release of the goods, the place of registration of the vehicle, etc. The article highlights some aspects of the recent reform of civil legislation and PIL, in particular. The root cause of the reform and renewal of domestic legislation in various areas, which is caused by the European integration processes taking place in Ukraine in recent years, is revealed. The article substantiates the active recodification of civil legislation introduced by the Government of Ukraine, aimed at eliminating certain shortcomings and contradictions in national civil legislation and harmonizing it with the legislation of the European Union. The article places special emphasis on the need to update national legislation and bring it into line with European standards for democratization and liberalization of all spheres of life.

Stan obecny i perspektywy przyjęcia przez Serbię nowego prawa prywatnego międzynarodowego

The Yugoslav Act of 1982 on resolving conflict of laws with regulations of other countries is still in force in the Republic of Serbia. The law drafted over 40 years ago was considered as innovative at the time of its adoption. At present, the Serbian academic community signals the need to update the current provisions of private international law, both in the spirit of approximation with the law of the European Union and in the need to better embed this law in the present legal order of the Republic of Serbia. The draft of a new act on private international law, prepared in 2014, was not adopted yet, although it was not formally rejected as such in Serbian legislative procedures (as of April 13, 2023) either. Though not formally binding, the draft law has been cited in recent years in the Serbian law journals, being an important point of reference for considerations on questions related to private international law in Serbia. It must be admitted that the progressive Serbian academic community turned out to be an active inspirer, creator and is now also a tireless advocate of changes in the field of private international law in Serbia.Serbia, which has been an EU candidate since 2013, has no particular obligation to introduce specific solutions in the field of private international law into its national law neither before nor after accession. EU law in the field of private international law is contained in regulations that will be automatically and directly applicable in Serbia when it becomes a member of the European Union. This is a dilemma whether to adopt the provisions which, in principle, will have to be repealed after the accession. At the same time, there are several benefits of approximating the law before the accession, including accustoming legal practitioners in Serbia to apply solutions similar to those in the EU, and increasing legal certainty by applying similar solutions of private international law in transactions between entities from Serbia and the European Union (regardless of the accession prospects).The author describes and summarizes the current state of regulations in Serbian private international law and analyses the main changes proposed in the draft law of 2014. The article also presents agreements binding Serbia in the field of private international law, including the still binding 1960 Polish-Serbian agreement.

How Does the Displacement of Natural Persons during War Influence the Applicable Law

In this article the authors analyse the consequences of displacement of natural persons during war, in the field of private international law. That displacement may affect the determination of applicable law if the factors to be taken into account include domicile, habitual residence, permanent residence, residence or sojourn of natural person. Apart from discussing the general understanding of these factors, we present the situations where a person has lost links with the country of his or her nationality because of the war but has not acquired strong links with any other country. All of the issues are discusses in the light of legal assistance agreements, EU law, and national laws.

Legal regulation of cross-border insolvency (bankruptcy) in the European Union

INTRODUCTION. The regulation of the institute of cross-border bankruptcy is currently acquiring the greatest relevance, given the globalization of the economy and the internationalization of business relations. In particular, transactions with foreign counter-parties are increasingly being concluded, property is purchased abroad, large organizations establish representative offices in foreign countries. Of particular relevance is the regulation of cross-border bankruptcy in the territory of the EU, which is an integration association. In this connection, the considered problems are of particular relevance.MATERIALS AND METHODS. This study is based on scientific works of Russian and foreign researchers in the field of private international law and European law, as well as on the analysis of EU legal acts. Methodological basis of research includes a variety of methods of scientific knowledge - general scientific (analysis and synthesis, induction and deduction, systemic, method of theoretical modeling, etc.) and special legal (method of legal interpretation, comparative legal, etc.).RESEARCH RESULTS. Increased attention to the legal regulation of cross-border bankruptcy in the EU territory is currently due to the desire to develop foreign economic relations, as well as the need to eliminate existing gaps in legislation that prevent the creation of a single market. As one of the components of legal cooperation in civil cases, the legal mechanism in the field of cross-border bankruptcy is characterized by a combination of two methods: unification and harmonization of legislation.DISCUSSION AND CONCLUSIONS. In the framework of this article the authors considered the very notion of cross-border bankruptcy, as well as highlighted the main characteristics of the models of its settlement in the international community. Modern EU legal system in the field of regulation of cross-border bankruptcy acts taking into account the existing judicial practice, in order to avoid infringement of the rights of creditors, who expect the fullest satisfaction of their claims, reducing costs and timing of the case. Measures to harmonize the EU legislation in the field of bankruptcy in the member states of the Union are aimed at creating a culture of business rescue and bona fide debtor.

ПРИЗНАНИЕ И ПРИВЕДЕНИЕ В ИСПОЛНЕНИЕ ИНОСТРАННЫХ СУДЕБНЫХ РЕШЕНИЙ ПО НАЛОГОВЫМ, ТАМОЖЕННЫМ И ДРУГИМ АДМИНИСТРАТИВНЫМ ДЕНЕЖНЫМ ВЗЫСКАНИЯМ: ДИЛЕММА МЕЖДУНАРОДНОГО ЧАСТНОГО И МЕЖДУНАРОДНОГО ПУБЛИЧНОГО ПРАВА

This article considers the problem of foreign court decisions execution on tax, customs and other administrative monetary penalties through the prism and mechanisms of private international law and international economic law. The approaches of Russian tax service and Russian courts on the given issue are analysed, the normative and doctrinal peculiarities of Russian jurisdiction are pointed out. International treaties in the field of private international law, including international civil procedure and international economic law that are (or could be) applied to the solution of this problem are considered. Examples are given to illustrate attempts to enforce foreign adjudication of customs duties in Russia. Historical background and doctrinal limitations of foreign adjudication in this field have been studied; the revenue rule principle in the Anglo-American countries has also been considered in detail. The article provides a comparison between the approaches of different jurisdictions as well as an analysis of the current trends. The authors also describe current regional and global mechanisms of cooperation in tax collection, including interdepartmental cooperation between the public agencies of different countries. On the basis of recent trends the authors suggest possible variants to solve investigated problem; they also estimate perspectives of jurisdictions interaction at mutual execution of foreign court decisions; they emphasize the role of supranational international law in the framework of regional economic integration unions; they highlight risks of using private law international mechanisms of recognition and enforcement of decisions in public sphere.

Jurisdiction over Cross-Border Insolvency Proceedings

The analysis of the opening of insolvency proceedings under European Union law involves the identification of incidental rules applicable to the insolvency proceedings with an element of foreignness when it concerns the Member States. In order to ensure a comprehensive understanding of cross-border insolvency proceedings, it is necessary to analyze the relevant rules in the field of private international law, when the international character of the insolvency legal relationship is reflected in relation to another third country of the European Union.

Regionalne ujednolicenie prawa prywatnego międzynarodowego w Skandynawii ze szczególnym uwzględnieniem spraw spadkowych

The aim of the following article is to introduce characteristics of the Nordic countries’ cooperation in the field of private international law, with particular emphasis on legislative cooperation concerning matters of inheritance law. The study discusses the genesis, characteristics and methods of legislative cooperation, along with selected Nordic conventions on private international law. As an example of a legal act of such kind, the article presents the Convention of 19 November 1934 comprising private international law provisions on succession, wills and estate administration, the detailed analysis of which was based on the author’s translation of the act from Swedish to Polish. Selected detailed issues discussed in the content of the Convention were also presented, some of which were compared to the solutions adopted by Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012.

Issues of application of the law of unrecognized states in private international law

This article examines problems regarding the application of the law of unrecognized states in private international law. The urgency of this problem lies in the possibility of applying the law of unrecognized states in the field of private international law, given their unresolved status in accordance with international public law. Despite the fact that these entities cover all the requirements provided for in the 1933 Montevideo Convention on the Rights and Duties of the State, they are still not given the full opportunity to function as full-fledged states. The existence of unrecognized states is a big obstacle in the settlement of many disputes. The status of these associations is difficult to determine by the current norms of international public law, however, in the light of this problem, questions are asked in the field of private international law: should states apply the law of unrecognized states. This article will be considered using a general and comparative legal analysis that will provide answers about the possibility of applying the law of unrecognized states. In the conclusion of this article, a set of recommendations for solving this problem is offered, which will help find solutions for the application of the law of unrecognized states in private international law.  Keywords: unrecognized states, the law of unrecognized states, application of foreign law, recognition of foreign documents, conflict of laws, state recognition.

Ferenc Mádl and International Economic Law

Ferenc Mádl, while rising to the ranks of the outstanding Hungarian statesmen who served their country unconditionally, remained a scholar with exceptional knowledge and a unique academic life. In the 1970s, he was the first to recognise that even the broadest interpretation of the field of private international law could not cope with the expansion and transformation of international economic relations in the world and in our country. Reality had gone beyond the given framework of thought, „the facts had rebelled”, a new system and new solutions were needed. A new discipline, international economic law was born to meet the needs of theory, education and practice. The new field of law not only sensed the changes in reality and the interconnections between different areas of reality, but also anticipated the future. Decades later, Ferenc Mádl comprehensively summarised the most important legal consequences of economic, political and social changes and demonstrated the role of law in these changes. In the field of international economic relations, changes have continued to accelerate, new issues and new dilemmas have emerged, including in the area of foreign investment, where public law meets private law, international law meets national law, substantive law meets procedural law. These – and many other exciting new topics – remain best located, cultivated and taught in the field of international economic relations 'invented' by Ferenc Mádl.

Transformation of international treaties in the field of private international law in the context of the constitutionalization of branches of law

In accordance with the legislation of the Russian Federation, the applicable law is determined, including in accordance with an international agreement. In 2020, amendments were made to the legislation of the Russian Federation, which again put on the agenda the question of the importance of international treaties in modern Russian law. In the light of the latest changes, if the norm of international treaties is recognized as unconstitutional, then this norm will not apply. In addition, the issue of qualifications is very important in the context of when an international treaty becomes part of the legal system. With the adoption of amendments to the Constitution of the Russian Federation and the Determination of the Constitutional Court, many issues that caused a lively discussion have been clarified. If we analyze more globally, the competition between states for the development of the latest technologies and innovations has led to the blurring of boundaries between legal systems, between public and private law, to the evolution of the concept of sources of law in the sphere of internal law of states. These trends cannot but affect the development of modern private international law. Should be noted, the trend towards an increase in the number of concluded international treaties, cross-border transactions within the framework of integration associations does not take into the background the need to comply with moral norms in the 21st century. Conscientious, partnership, mutually beneficial cooperation between states in a difficult post-like time can lead to an improvement in the development of the economies of states and stability in society, to an increase in legal culture in it.

Features regulation of force majeure in private international lawin the covid era

This article analyzes the regulation of relations to release from the fulfillment of cross — border obligations due to the onset of force majeure, namely the new coronavirus infection (COVID-19). The issue of practical difficulties in obtaining certificates of force majeure circumstances in the Chamber of Commerce and Industry of Russia is discussed, and problems of using certificates to prove these circumstances in judicial practice. At the international public level, an interesting decision was analyzed, which was rendered in France by the Colmar Court of Appeal. In the field of private international law, the following international acts were analyzed: Vienna Convention on Contracts for the International Sale of Goods 1980, Principles of International Commercial Contracts UNIDROIT, rev. 2016, New ICC Model Clauses 2020. This article reveals the need for the mandatory use of a force majeure clause in a cross-border commercial contract. This article analyzes a new 2020 documents «Note on the UNIDROIT Principles of International Commercial Contracts and the COVID-19 health crisis», whichexplained the impact of the COVID-19 pandemic on the performance and non-performance of international commercial contracts.

Recodification of civil legislation of Ukraine and private international law: to the issue of the prospects

Nowadays the processes of democratization, liberalization, integration of Ukraine into European and world space take place. Theundisputed significance for these processes is the signing of the Association Agreement between Ukraine and the European Union.Thus, the rapprochement of Ukraine with the European community, which has taken place in recent years, affects the sphere of privatelaw relations, which are complicated by a foreign element - the legal relations that make up the subject matter of international privatelaw.Having analyzed current doctrine of international private law, the author can conclude that nowadays researchers are paying moreattention to a deep understanding and study of the general provisions of this branch of law rather than to analysis of individual sub-sectorsand institutes of private international law.Nowadays recodification of civil legislation is taking place in Ukraine.The main reason for the recodification of civil legislation is to increase legal certainty as a component of the rule of law. Legalcertainty demonstrates an ability of legislation to satisfy the needs of the subjects of law in the respective benefits.At the same time some specific issues related to the recodification of civil legislation and its link with private international lawhave not been the subject to scientific research. In our opinion, these issues deserve special attention, as they make it possible to analyzenot only the current state of private international relations, but also to forecast the prospects and changes in the field of private international law. The aspects to be discussed are the consolidation of the private international law system of principles, revision of the impera -tive norms institute and public order clause.The analysis of scientific points of private international law doctrine representatives gives grounds to conclude that there is currentlyno universal approach to understanding the system of principles of private international law, the imperative norms and publicorder institute. Neither private international law legislation, nor scientific approaches give clear vision of these issues.It is crucial to stress that recodification of civil legislation in Ukraine has its direct impact on private international law systemand its mechanism of legal regulations.

Conflict of laws issues of marriage in the field ofprivate international law

Conflict of laws issues of marriage in the field ofprivate international law

Konsekwencje brexitu w dziedzinie prawa prywatnego międzynarodowego

Brexit is a unique phenomenon as no Member State has ever expressed the will to leave the European Union. Never before had the in-depth impact of a Member State withdrawal been analysed. The issue has started to be analysed after the referendum in which the British voted in favour of leaving the European Union. The topic of the potential consequences of Brexit in the field of private international law concerns, inter alia, national jurisdiction in civil and commercial matters, mutual recognition and enforcement of judgments, specific procedures of EU uniform law, judicial cooperation between Member States or the functioning of the e-Justice Portal and dynamic forms. Before a given Member State withdraws from the EU, interested parties should have been informed, inter alia, of how pending proceedings will be conducted starting with the withdrawal day, what about proceedings initiated at the date of withdrawal or later on, and what about the rulings of the courts of the applicant state covered by the exequatur procedure before the withdrawal. Therefore, the primary purpose of the article is to determine the framework for the future relationship between the EU and the UK in the field of private international law. An additional aim of this paper is to better prepare natural and legal persons for the new post-Brexit reality. European integration has brought Europe peace and prosperity and enabled unprecedented cooperation in all areas of common interest. Following the withdrawal decision, the state and its citizens cease to benefit from the acquis communautaire. In fact, the United Kingdom left the European Union on 31 January 2020. As far as private international law is concerned, the United Kingdom has become a third country. Subsequently, on 1 February 2020 a transition period has started and it aims to provide more time for citizens and businesses to adapt. The negotiations on the future partnership between the EU and the UK has started in March 2020, but they were postponed due to the coronavirus COVID-19 pandemic. The relationship between the United Kingdom and the European Union is sometimes compared to love that has passed away, but former lovers must continue to meet from time to time to manage certain common affaires. The analysis of the topic leads to the conclusion that, in fact, Brexit is a unique phenomenon that has no added value.

Las criptodivisas como medio de pago y el Derecho internacional privado

El objeto del presente estudio es el análisis de la naturaleza jurídica de las denominadas criptodivisas o monedas virtuales y de las posiciones defendidas por distintos autores en base al estado normativo actual y a las decisiones emitidas por autoridades internacionales, haciendo especial hinca­pié en la concepción de las criptodivisas como “medio de pago” y “bienes susceptibles de propiedad”. Además, se realiza también un examen acerca de la suficiencia de los mecanismos legales existentes en materia de Derecho internacional privado para lidiar con las consecuencias derivadas de dichas califi­caciones y acerca de la posibilidad o necesidad de realizar modificaciones legislativas para lograr una regulación satisfactoria de las monedas virtuales.

Notas sobre el informe del Instituto de Derecho Europeo acerca de la protección de adultos en situaciones internaciones

El Instituto de Derecho Europeo (ELI) ha elaborado un Informe con el que urge a la Unión Europea a “europeizar” un nuevo ámbito del Derecho internacional privado: la protección de adul­tos. El Informe razona la necesidad de dar este paso, justifica la base competencial de la UE para hacerlo y propone una doble estrategia, externa e interna. La externa consiste en autorizar a los Estados Miembros a ratificar el Convenio de La Haya sobre protección internacional de adultos en interés de la UE y en promoverlo entre terceros Estados. La interna pasa por la adopción de un Reglamento que complemente y mejore, en las relaciones entre Estados Miembros, el funcionamiento del mencionado Convenio.

Recodification and private international law: to the issue of principles

Nowadays the processes of democratization, liberalization, integration of Ukraine into European and world space take place. Theundisputed significance for these processes is the signing of the Association Agreement between Ukraine and the European Union. Thus, the rapprochement of Ukraine with the European community, which has taken place in recent years, affects the sphere of private law relations,which are complicated by a foreign element – the legal relations that make up the subject matter of international private law.Having analyzed current doctrine of international private law, the author can conclude that nowadays researchers are paying moreattention to a deep understanding and study of the general provisions of this branch of law rather than to analysis of individual sub-sectorsand institutes of private international law.Nowadays recodification of civil legislation is taking place in Ukraine. The main reason for the recodification of civil legislationis to increase legal certainty as a component of the rule of law. Legal certainty demonstrates an ability of legislation to satisfy the needsof the subjects of law in the respective benefits.At the same time some specific issues related to the recodification of civil legislation and its link with private international lawhave not been the subject to scientific research. In our opinion, these issues deserve special attention, as they make it possible to analyzenot only the current state of private international relations, but also to forecast the prospects and changes in the field of private international law. One aspect that is worth to be discussed is the consolidation of the private international law system of principles.The analysis of scientific points of private international law doctrine representatives gives grounds to conclude that there is currentlyno universal approach to understanding the system of principles of private international law. Neither private international lawlegislation, nor scientific approaches give clear vision of the system of principles of private international law.It is crucial to stress that recodification of civil legislation in Ukraine has its direct impact on private international law systemand its mechanism of legal regulations.

Foreword

The current volume of “Problemy Prawa Prywatnego Międzynarodowego” — the leading Polish periodical in the field of private international law — is primarily devoted to the Regulation No 650/2012 of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (“the Succession Regulation”).

REVIEW OF THE VOLUME THE PROMISE OF MARRIAGE (ENGAGEMENT) IN ROMANIAN PRIVATE INTERNATIONAL LAW. FAMILY RELATIONS IN ROMANIAN PRIVATE INTERNATIONAL LAW, AUTHOR NADIA-CERASELA ANITEI, PUBLISHING BY LAP LAMBERT PUBLISHING HOUSE

The monograph, The promise of marriage (engagement) in Romanian Private International Law. Family relations in Romanian Private International Law”, was published by LAP (Lambert Academic Publishing) in 2020 and is part of the author's constant preoccupations in the field of private international law The author holistically captures in her book, The promise of marriage (engagement) in Romanian Private International Law, the institution of engagement from its origins to the present in Romanian Law, in comparative law and in Romanian Private International Law.

CIVIL LEGAL PERSONALITY OF PHYSICAL ENTITIES: THE CONTENT EVOLUTION

The article is devoted to the memory of the outstanding Russian scholar Dmitriy I. Meyer (1819—1856) — the ancestor of Russian civilistics who declared that the rights of individuals depend on different circumstances that are, to some extent, natural and, to some extent, historical. Meyer’s statement that “there are different degrees of insanity: sometimes it is stronger, sometimes weaker” turned out to be accepted by the Russian legislator only in 2015 by making appropriate changes in the Russian legislation regarding the problem of legal capacity of citizens. The paper has investigated the evolution of the content of legal personality of individuals in the field of private legal relations, including family relations, as well as in the field of relations complicated by a foreign element, i.e. in the field of private international law. On the basis of the analysis, the author explores a civil legal personality of a natural person category as her ability to be a subject of civil law including such elements as capacity and legal capacity. Civil capacity should be understood as a legally equal abstract opportunity for everyone to have civil rights and duties. It is unacceptable to consider capacity as a subjective right to have the right: this leads to an unjustified doubling of the category of “subjective right” and hinders a proper understanding of the mechanism of civil regulation. The article investigates the subjective right as implementation of capacity of a particular person, and, therefore, citizens being legally equal in their capacity, to be not equal in the presence of specific subjective rights that constitute the content of their capacity in the abstract form. The authors have analyzed the amendments to the Civil Code of the Russian Federation introducing a new basis for limiting the legal capacity of citizens, as well as taking into account the degree of actual reduction of the ability of citizens to understand the meaning of their actions or to be in control of such actions. The article analyzes the conflict-of-laws principles of determination of capacity and legal capacity of foreign citizens. Jurisprudence, along with the recognition of the national regime of foreign citizens on the territory of the Russian Federation, indicates the need to apply foreign laws in determining the civil capacity and legal capacity of foreign nationals. The article analyzes the private law component of the institute of retortions the immediate purpose of which is to protect private rights and legitimate interests of Russian citizens. Thus, the content of the concept of civil personality of natural persons in the field of private law relations that consists of such categories as capacity and legal capacity evolves into the recognition of equality and the protection of the interests of all persons on the basis of the principles of justice, humanity and reasonability. At the same time, the State secures legal guarantees applied for the completion of the legal capacity of minors and certain categories of adult citizens through institutions of parental responsibility, guardianship and custody and establishes procedural guarantees of observance of the rights of these persons in judicial proceedings.