Private International Law Research Articles

Potential Influence of Article 6(1)(b) of the Hague Principles on Choice of Law in International Commercial Contracts on Indian Private International Law

Potential Influence of Article 6(1)(b) of the Hague Principles on Choice of Law in International Commercial Contracts on Indian Private International Law

Cultural Property Protection in Private International Law

The armed aggression of the Russian Federation against Ukraine has brought the issue of protecting cultural property to the forefront. Numerous documented cases of illegal exports of cultural property from Ukrainian museums located in territories occupied by the aggressor country have emerged. In addition, little is known about the number of stolen objects from private collections, which are considered cultural artifacts. There are no statistics available on this matter. This paper aims to explore the problem of applicable law during the consideration of disputes regarding the protection of cultural property. The author examines the concept of cultural property restitution in private international law and different approaches and concepts for defining "restitution" and "return" of cultural values. It has been argued that the term “return of cultural property” should encompass a wider scope, including both the restitution of illegally exported cultural property and the return of cultural property that was legally in the possession of another state but was later repatriated to the original state as a gesture of goodwill. The author offers his definitions of these terms based on theoretical research, as well as an analysis of the domestic legislation of Ukraine and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Property of June 24, 1995. The paper also delves into the issues of conflict regulation of disputes involving cultural values. Both the issues of determining the right of ownership to and the problems associated with the protection of the right of ownership of cultural property in private international law are considered. The point of view that the conflict of laws rule lex originis (the law of the country from whose territory the cultural property was exported) should be applied in disputes regarding the return of cultural property from someone else's illegal possession is supported. The author concludes, based on a comparative analysis of laws on private international law, about the most appropriate mechanism for protecting the property rights of a bona fide purchaser in disputes over cultural property.

The Idea of Implementing Spiliada Principle for Indonesian Court in Hearing Private International Law Cases

The Idea of Implementing Spiliada Principle for Indonesian Court in Hearing Private International Law Cases

Legal Basis and Procedures Unification on Oil Spill Damage Compensation In International Convention on Civil Liability for Oil Pollution Damage (1992) and The International Convention on Civil Liability for Bunker Oil Pollution Damage (2001): on Indonesian International Private Law Perspective

Legal Basis and Procedures Unification on Oil Spill Damage Compensation In International Convention on Civil Liability for Oil Pollution Damage (1992) and The International Convention on Civil Liability for Bunker Oil Pollution Damage (2001): on Indonesian International Private Law Perspective

Взаимодействие института автономии воли сторон с комплексом норм «lex mercatoria» при регулировании контрактных отношений, осложненных иностранным элементом

The article is devoted to the study of the relationship between the institution of party autonomy and the set of norms “lex mercatoria” in the regulation of cross-border contractual relations. The relevance of the research topic is based on the growing importance of the party autonomy in private international law, the expansion of its subject area, as well as the demand for lex mercatoria as a source of private international law, which regulates various groups of business relations, including in the field of cyber-space. The novelty of the study lies in identifying the connection between phenomena from different planes: party autonomy, which affects the conflict of laws aspect of private international law, and lex mercatoria, expressing the substantive component. The aim of the study is to show the mutual dependence of trends in the development of the party autonomy and lex mercatoria, as key categories of modern international contract law. The research methodology is aimed at understanding the essence of the legal categories under consideration (phenomenological methodology), analysis of legislation, judicial practice and doctrine (hermeneutic methodology) taking into account the experience of various legislators (comparative legal method). As a result, it was determined that the tendency to allow the parties to choose the law determines the active use of non-state regulation – a set of norms lex mercatoria, especially in areas in which there are no detailed norms of national legislation.

IMPROVING THE LEGAL REGULATION OF OBLIGATION RELATIONS IN INTERNATIONAL PRIVATE LAW

This article considers issues related to the need for the development and adoption of a separate code of Private International Law for the Republic of Uzbekistan, with the aim of regulating international private legal relations. It is proposed to include a dedicated chapter on “Obligatory Law” in the Code, which would cover the regulation of both contractual and non-contractual relations. An analysis of the legal acts of foreign countries in the field of Private International Law has been conducted. Based on this analysis, proposals and recommendations for improving the legislation of the Republic of Uzbekistan have been developed. Particular attention is paid to recommendations on the exclusion from the Civil Code of the Republic of Uzbekistan of the mandatory written form requirement for foreign economic transactions, which in turn will allow to conclude transactions through electronic means of communication and the use of artificial intelligence. Of course, except for cases requiring mandatory state or notarial registration. It is proposed to supplement the Code with provisions that determine the applicable law in cases where the parties have not made an explicit choice. In particular, this applies to various types of foreign economic transactions, such as guarantee contracts, distribution contracts, agency contracts, escrow contracts, factoring, and forfeiting, as well as contracts concluded within the framework of Internet auctions, Internet contests or Internet exchanges and contracts involving consumers. The necessity of determining the scope of the law applicable to obligations arising from the infliction of harm as well as expanding the definition of the applicable law arising from various obligations arising from the infliction of harm is substantiated.

Problems of protecting children’s rights who are citizens of Ukraine enjoying temporary protection in EU countries

The full-scale war in Ukraine caused a mass migration of its population and led to the increase in private relations complicated by a foreign element, which are the subject matter of private international law. The Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof provided the opportunity for citizens of Ukraine to receive the status of temporary protection on the territory of the EU countries. Cases of children being taken away from their accompanying persons or from their families have become a new challenge for Ukrainian children and their parents, who moved from Ukraine to the territory of the EU and who are under the temporary protection status. Those cases occur due to differences in legislation in matters of guardianship and parental responsibility. The author of the article has studied and systematized cases, when social services of the host country are authorized to act urgently in the interests of a child and take a child away from the family. The article provides general characteristics of circumstances that are reasons for taking a decision on the application of emergency measures by social services of EU countries to children who are citizens of Ukraine enjoying temporary protection in EU countries. It is established that the removal of children from their parents, guardians or authorized persons to accompany the child occurs under different circumstances and each situation is individual, but having systematized the cases, the author has identified the following reasons: staying in the EU unaccompanied by adults and on the grounds of “parental negligence” or “improper performance of parental duties”. The author analyses the legal status of an unaccompanied child under the national legislation of Ukraine and foreign national legislation of some EU countries. The legal status of unaccompanied children under the Directive 2001/55/EC and the Convention on the Rights of the Child of 1989 is investigated. It is substantiated that the practice of recognizing Ukrainian children enjoying the temporary protection status as unaccompanied children is based on the following grounds: а) deficiency (inconsistency, non-recognition) of documents authorizing a person who accompanies a child for taking care of a child; в) non-compliance (non-recognition) of documents on the right to guardianship, issued in Ukraine, with the requirements of the host country that granted temporary protection; с) independent stay of a child on the EU territory, who is a citizen of Ukraine and has reached the age of 16, left Ukraine independently and is on the EU territory without parents and accompanying persons.

Comparative Legal Assessment of the Mass Risk Insurance in the Czech and European Private International Law

Comparative Legal Assessment of the Mass Risk Insurance in the Czech and European Private International Law

Slovakia: Private foundations and trust-like institutes in Slovakia

Abstract Slovak private law significantly lags behind modern European trends. Family foundations and trusts or trust-like institutions are unknown to Slovak law. None of the recently proposed reforms has yet remedied this inappropriate state. The intergenerational transfer of family property remains very complicated. The use of foreign trust structures is also restricted by Slovak private international law and negative tax consequences. This article provides an overview of the development of Slovak legislation, its current state, efforts to change the regulation of foundations, and the practical ways of evading Slovak law by using foreign legal structures—private foundations and trusts.

Origin of rules of law choice: the primitive era

The article explores the concept that the first relations falling under the subject of private international law originated in the primitive period. These relations include exogamy and incest taboos, the institution of hospitality and exchange agreements. Exogamy and incest taboos are fundamental relationships that emerged parallel to the development of society and law, forming he cornerstone of these constructs. These represent the earliest interactions involving “foreign persons” and are characterized by personal non-property character. Hospitality ties are linked to exogamy while exchange relationships follow subsequently. Intergroup agreements serve as primary mechanism for regulating these relations and lay the groundwork for the inception of the initial choice-of-law rules. The conflicts are not interstate but rather intergroup (intercommunal), similar to contemporary interpersonal or interlocal disputes. The author applies a number of methods such as comparative analysis, reconstruction, formal-logical, dialectical, natural science and historical analysis in this research. In conclusion, the author asserts that three key institutions emerged in the pre-state era, forming the foundation of modern PIL: exogamy (cross-border marrital and family relations), hospitality (foreigners’ law), and exchange (international contract law). During this period the first conflict resolution rules also emerged. The principle method for addressing conflict issues in primitive societies is the unified substantive approach through intergroup agreements. Additionally, archaic law incorporated conflicting principles like personal law and the law of the place where the action occurred. These conclusions are drawn through a reconstructive approach and are supported by archeology, genetics, anthropology, as well as domestic and foreign scholarly research on legal genesis.

Novi međunarodni privredni sudovi

In this paper, the author provides an overview of the main characteristics of international commercial courts, their composition and jurisdiction, as well as private international law instruments that ensure the recognition and enforcement of their decisions abroad. International commercial courts are national courts of international jurisdiction. They are established by individual states that aspire to be or become significant global centres for the resolution of commercial disputes. They are characterized by a certain degree of internationalization, reflected in their ability to conduct proceedings in the English language and in the origin of judges, who are, in some instances, foreign nationals. Some international commercial courts adjudicate cases according to common law rules, even though they are based in countries with legal systems based on continental law or Sharia law. The procedural rules before most of these courts incorporate elements of arbitral procedural rules and alternative dispute resolution methods. They generally have jurisdiction in commercial disputes with an international element, and they recognize a written choice-of-court agreement of the parties as the basis for international jurisdiction. In this regard, there is no requirement for any connection with the state where the court is based for valid submission to jurisdiction.

Application of UNIDROIT Principles in International Trade Contracts in Indonesia

This research explains the application of UNIDROIT principles in international trade contracts in Indonesia. This research uses normative legal methods, which examine the legal principles written in statutory regulations. The UNIDROIT principles, which are considered global guidelines in international private law, are used as a framework in this research. The research results show that UNIDROIT principles, such as freedom of contract, good faith and compliance, legal certainty, contract formation, obligations of the parties, dispute resolution, have played an important role in creating a stable and reliable legal environment in international trade contracts in Indonesia . These principles help increase trust between parties involved in cross-border trade transactions and facilitate the resolution of disputes in a peaceful and efficient manner. from this research, it can be concluded that the application of UNIDROIT principles has provided great benefits for business people in Indonesia, both in terms of increasing legal certainty and facilitating sustainable international trade. However, to maximize the benefits of implementing UNIDROIT principles, concrete steps are needed such as ratification of the UPICCs, adjustments to national contract law, and strengthening of legal infrastructure. Thus, this research provides a comprehensive view of the importance of applying UNIDROIT principles in the context of international trade contracts in Indonesia.

La resolución de conflictos en el metaverso desde la perspectiva del derecho internacional privado

In recent years, the metaverse has experienced rapid growth as a space where people interact and engage in various activities, including digital commerce of goods and services. These activities pose significant legal challenges for Private International Law, particularly in cases of conflict, concerning issues of jurisdiction and conflicts of laws. This article analyzes these challenges, based on a thorough review of primary and secondary sources. The result of this analysis is that currently, Private International Law does not offer practical solutions to resolve conflicts arising from digital transactions in the metaverse before courts. The conclusion reached is that there is an urgent need for clear regulation that allows for quick and effective solutions, and that also promotes the stability and legal security of the parties in this emerging virtual space.

Cross-border insolvency: concept and legal regulation forms

The present article aims to define and clarify the term „cross-border insolvency”, as well as to identify situations falling within the scope of cross-border insolvency. Considering that economic actors operate in multiple states, the element of extraterritoriality specific to private international law comes into play. The article highlights the place of cross-border insolvency within the framework of private international law. It is worth noting that there is no universally accepted definition of the term „cross-border insolvency”. In this regard, exploring the content and essence of the examined legal relationships holds considerable scientific and practical interest. Additionally, various legislative and institutional approaches adopted globally for managing cross-border insolvency are analyzed, along with comparisons between national legal systems and international regulations concerning insolvency.

What to do With Cross-Border Environmental Pollution: Legislative Aspects

Abstract – Environmental torts and possibility of trans-border dispute settlement thereof has gained significant prominence in the recent years. Cases such as Urgenda foundation v the State of the Netherlends, Milieudefensie et al. v. Royal Dutch Shell plc., ClientEarth v. Enea, Neubauer et al. v. Germany demonstrate that environmental tort cases can be brought by stakeholders globally rather than relying on involvement of a relevant national responsible authority. EU climate policy of decreasing GHG emissions and the ambitious target of reaching climate neutrality by 2050 has resulted in a rapid development of environmental law. Thus, environmental regulation is becoming increasingly complex and possible breaches may cause serious legal consequences affecting everyone not just selected individuals or states. These developments could possibly lead to a necessity of a forum or rules where any natural person or an NGO could bring a claim against a state or multinational corporation which engages in illegal activities causing harm the environment on a global scale. Using litigation as a tool to empower society to stand against environmental wrongdoers may serve as a deterring factor to maintain order when it comes to environmental regulation. While such reasoning may seem farfetched and extreme, nevertheless it still raises a question of current regulation on determination of jurisdiction and the applicable law and whether it would be possible to benefit from developing these rules. By engaging in a systematic literature analysis identifying the relevant terms, the research shall explore the basic principles of private international law in relation to assigning jurisdiction and determining applicable law in claims concerning environmental torts. The research shall develop a methodology with the aim of covering and identifying a wider range of problems related to the determination of jurisdiction and application of law in cross-border environmental tort claims. Some of the main issues concern the determination of defendants in cases involving multinational corporations, multi-claimant cases, and the compensation of indirect damages. An exploration of material aspects in the developments of the current EU regulation and guidelines shall be analysed in conjunction with the aforementioned notion. The result of the study not only will reflect the specifics of the application of the Brussels Ibis Regulation and Rome II regulation in cross-border environmental torts, but also how the EU environmental regulation could potentially promote corporate responsibility and environmental protection. Thus, developing research on interaction between private international law and environmental law. Keywords - environmental tort, SEG emissions, jurisdiction, applicable law, cross-border pollution

International Law in the Perspective of International Relations

Before discussing the meaning of international law, it is important to know that law is divided into two large groups, private law and public law. However, the terms these two large groups are better known as international law and international private law. The difference between the two is in the objects they regulate. International law is the law that regulates relations between countries and other legal subjects. International law can be defined as the law that regulates international scale entities. Initially, the definition of international law was only defined as law that regulates behavior and relations between countries. However, in its development, the meaning of international law has expanded to include the relationship between states and international organizations, the relationship between international organizations and other organizations, the relationship between states and individuals in special contexts, and so on. There are six subjects of international law, namely : states, international organizations, the international red cross, the vatican holy see, rebels and individuals. International Law includes a set of rules and principles established through international treaties, the practices of states, as well as legal decisions and interpretations by international institutions. Its aim is to regulate the behavior of states in maintaining peace, managing conflict, promoting cooperation, and protecting human rights. International Law covers various aspects, including the law of war (also known as international humanitarian law), refugee law, maritime law, environmental law, international trade law, international investment law, human rights law, diplomatic law.

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.

Гармонизация процедур реструктуризации в банкротстве: итоги Гаагской конференции по международному частному праву 2024 г.

From 5 to 8 March 2024, a meeting of the Council on General Affairs and Policy of the Hague Conference on Private International Law (HCCH) was held. The meeting was attended by 429 participants accredited by 74 states. The delegation of the Russian Federation included 6 representatives of various federal executive authorities, including the author of this article. One of the pressing issues considered by HCCH was the harmonization of international insolvency law. The main achievement in this direction was the cooperation of the Permanent Bureau of HCCH with Working Group V on Insolvency law of the United Nations Commission On International Trade Law (UNCITRAL) in matters of unification and harmonization of regulation of restructuring procedures, development of documents on issues of applicable legislation in proceedings on cases insolvency, as well as tracking and recovery of assets during insolvency proceedings. This article presents an analysis of the problems in this area that existed before the start of the HCCH’ meeting in 2024, as well as the progress and results of the discussion within HCCH on the unification and harmonization of insolvency restructuring procedures, taking into account its interaction with UNCITRAL Working Group V.

The modern property situationship: Is bitcoin better off (left) alone?

In modern private international law (PIL), property and situs apparently go hand in hand in an established PIL monogamy to which there tends to be a collective commitment for all PIL aspects of a cross-border dispute for all PIL subcategories of property objects. This article argues that mechanistic deference to such apparent property-situs monogamy as an overarching rule in the PIL of property is not only misconceived; but is positively impeding progress in the modern PIL debates surrounding property rights in modern decentralised objects such as bitcoin. It therefore examines the discrete justifications for the situs rules to show that the apparent property-situs monogamy is actually the cumulative effect of a wide variety of situation-specific considerations in what is really a property-situs situationship. Hence, from an analysis of the situs rules, and the principles underpinning international jurisdiction and applicable law more generally, it suggests alternative property PIL solutions to the intractable problems posed by decentralised phenomena based on policy considerations rather than continued focus on the property object itself as the “natural seat” of a property relationship.

The common law marriage in Australian private international law

The common law marriage is a curiosity in the private international law of marriage in the Commonwealth and Ireland. In some cases, a marriage that is invalid under the law of the place where it was solemnised (lex loci celebrationis) may nevertheless be recognised as valid if it meets the requirements of a common law marriage. These originate in the English canon law as it stood in the eighteenth century and include the central requirement of the parties’ present declaration that they are married. The parties also had to meet the essentials of a Christian marriage as described in Hyde v Hyde (1866): “a voluntary union for life of one man and one woman to the exclusion of all others”. There are more reported cases on common law marriages in private international law in Australia than any other country. Although its Australian development coincided with that of other countries, in the twenty-first century the Australian common law marriage is now in an unusually amorphous condition. The preconditions for a court to ignore the lex loci have been significantly liberalised. Additional uncertainty in the nature of a common law marriage is created by a combination of repeated misinterpretations of the Marriage Act, the failure to use precedent outlining its requirements and the dismantling of the Hyde definition of marriage in the Same-Sex Marriage Case (2013). The article considers that the common law marriage might still serve a useful purpose in Australian private international law, and how it could better do so.