Lex Rei Sitae Research Articles

INHERITANCE OF MOVABLE PROPERTY COMPLICATED BY A FOREIGN ELEMENT: ISSUES OF COMPETENCE

This article discusses issues related to determining the competence of authorities in cases of inheritance complicated by a foreign element and consisting of movable property. The relevance of the study is due to the recently published Resolution of the Constitutional Court of the Russian Federation No. 12-P, where the provisions of Articles 1115 and 1224 of the Civil Code of the Russian Federation are again discussed, especially in the context of unilateral restrictive measures introduced against the Russian Federation. Analyzing domestic and international legislation we identify the following rules for determining the competence of authorities in cases of inheritance complicated by a foreign element and consisting of movable property in the Russian Federation: 1) the law of the last place of residence; 2) lex patriae; 3) lex rei sitae, established in international treaties (1-3) and national legislation (3). European legislation also allows for the determination of the competent authorities by agreement of the parties.

DIGITAL ASSETS IN INTERNATIONAL PRIVATE LAW

Cryptocurrency is an intangible digital asset which has a cryptographic identity and uses a decentral-ized system. The intangibility and cryptographic identity will tie the existence of cryptocurrency and the encryption key which is used to produce a digital signature that is later used to conduct a transaction. In general, an intangible asset will seek how a legal system regulates the existence, transfer, and transaction of the asset. In this case, it shall apply the principle of lex rei sitae. This Latin phrase means the law of the land where the asset is situated. As for cryptocurrency, the digital asset is situated in a certain place on a server which is owned by the owner of the asset or a third party. The destination and transfer of that as-set will be governed by the law where the asset is situated. This is an application of private international law which will determine the fundamental law or general principle law of some countries in relation to foreign law and legal-based decisions on a case regarding the legal interest between private parties that come from different countries and different country laws. The existence of the asset, transfer, transaction, and the possible dispute between the parties will be determined by the law that applies to the owner of the asset. If the owner is domiciled in a country with a different law than the asset is situated, it is possible to change the place or apply the law of the owner’s country. This is called renvoi. This is a very complex law application, especially for the global scope of cryptocurrency transactions, so it is necessary to further discuss the application of it to the dispute involving the foreign party. This work does not cover various legal issues related to cryptocurrencies but considers only private international law aspects. It is based on the assumption that cryptocurrencies have the potential to evidence intangible assets and can be subject to proprietary rights.

The Legality of Grants by Foreign Citizens on Land Objects in Indonesia: Case Studies of Court Decisions

This study aims to examine and analyze the legality of granting by Singaporean citizens to Indonesian citizens before the Notary Public of Singapore on land objects located in the territory of Indonesia based on Decision No. 912/Pdt.G/2018/PA.Jmb. In addition, this study further analyzes the laws and regulations that should apply in handling grants case based on international civil law. This research was conducted using a normative juridical approach with analytical descriptive specifications. The literature study was used to obtain the legal materials needed in this research. The collected legal material is then analyzed using qualitative data analysis methods with a statute and case approach. The results show that the legality of granting the object of land wills in Indonesia from former Indonesian citizens who have become foreign citizens to Indonesian citizens based on Decision No. 912/Pdt.G/2018/PA.Jmb is invalid and void by law. This case is contrary to Article 21 section (3) of Law No. 5 of 1960 and Article 37 section (1) of Government Regulation No. 24 of 1997. Based on the concept of International Civil Law, that action can be categorized as law smuggling, namely an act committed in a foreign country and recognized as legal in that foreign country. As for immovable objects, the general principle accepted in international civil law has stated that immovable objects in their status are based on the principle of lex situs or lex rei sitae. Therefore, it is recommended that every foreign citizen who has land rights or other property rights in Indonesia must relinquish the right of ownership within one year. The granting of land rights or property rights must be made in the grant agreement before the Land Deed Official of Indonesia. Furthermore, the registration of the transfer of land rights will be carried out at the National Land Agency of the Republic of Indonesia. Thus, land rights or property rights will get guarantees, protection, and legal certainty to avoid disputes in the future.

Is a Mummy a Person or a Property: The Classification and Choice of Law of Cultural Objects in Private International Law

Abstract In the Buddha Mummy Statue case, the Chinese village committees sued the Dutch defendants for the return of a stolen golden statue that contains a mummified Buddha. The parties had different opinions on the legal nature of the mummy contained in the statue. The Chinese court classified the statue as a cultural property and applied the choice of law over movable properties provided in Article 37 of the Chinese Private International Law Act (lex rei sitae). Based on a comparative study, this article argues that a mummy does not fall within the traditional dichotomy between a person and a property. Instead, a mummy should be classified as a transitional existence between a person and a property. If the classification of a mummy has to be confined to the traditional dichotomy, a mummy can be regarded as a quasi-person or a special kind of property. Following this new classification, a new choice-of-law rule should be established. In this regard, the Belgian Private International Law Act, which adopts the lex originis rule, supplemented by the lex rei sitae rule, is a forerunner. This article advocates that the adoption of the lex originis rule may help to stop the vicious circle of illegal possession of stolen cultural objects and facilitate the return of stolen cultural objects, especially those containing human remains, to their country of origin.

Choice of law for immovable property issues: new directions in the European Union and the United States

In both the European Union and the United States, it is a dynamic period for private international law regarding immovable property issues. The predominant approach has been that these issues are governed by the lex rei sitae —that is, the law of the State where the immovable is located. However, through a comparative examination of recent EU Regulations on succession, matrimonial property regimes, and the property consequences of registered partnerships, and of the new Third Restatement of Conflict of Laws project in the United States, this article shows that on both sides of the Atlantic there is a trend toward reducing the scope of the lex rei sitae rule. It explores both the reasons for and the challenges posed by this trend. It also reveals that despite this trend, the lex rei sitae rule nevertheless persists in relation to certain «core» immovable property issues.

Similarities and Differences Between the Albanian and Italian Succession Law

Summary In 1994, Albania codified the current civil code, harmonizing the national legislation with the democratic values of the Western European Countries. This paper fills the gap in the national and international scientific literature since there is no scientific contribution that examines the Albanian law of succession showing the similarities and differences between the Albanian and the Italian civil codes. This is fundamental because according to Article 33 Albanian Private International Law (Albanian Law no. 10 428 of June 2011), which governs cross-border succession law, in the case of immovable goods, the rule of lex rei sitae has been codified. Thus, in the case of immovable goods, the Albanian succession law will be applied to them. In the conclusion, this research demonstrates that the Albanian Law of Succession of 1994 is different in many ways from the rules established in the Italian Civil Code of 1942.

Zum kollisionsrechtlichen Umgang mit sachenrechtlichen Eigentumsvermutungen aus dem Besitz

A presumption is made in the favour of the possessor of a movable thing that he is the owner of the thing, and likewise it is presumed that a former possessor was the owner during the term of his possession. However, legal presumptions such as those behind the German Civil Code’s §1006, subsections 1 and 2 (or §90 of the Estonian Law of Property Act) are shifting the burden of proof to the other party, the one who is not or was not the possessor of the movable. The paper examines the attendant issues with regard to conflict of laws, with the conclusion that it remains unclear whether legal presumptions arising from possession should be qualified by the lex rei sitae doctrine (per the Introductory Act to the German Civil Code, Article 43, Subsection 1), instead as ‘rights over an object’ (under that article’s Subsection 2), or in line with procedural regulations (lex fori).

In Search of the Holy Grail of the Conflict of Laws of Cultural Property: Recent Trends in European Private International Law Codifications

AbstractMost private international laws do not address cultural property specifically but, instead, apply the general lex rei sitae rule also to artifacts. Legal scholarship has revealed the flaws of the rigid application of the lex rei sitae principle to cultural goods and has proposed alternative connecting factors, such as the lex originis principle, to prevent forum and law shopping in this field. Reacting to the criticisms, some of the more recent private international law codifications have decided on the adoption of specific rules on stolen and illegally exported cultural goods that combine the lex rei sitae and the lex originis rules and provide room for the parties’ autonomy. This article draws the conclusion that these more recent legislative solutions do not necessarily promote legal certainty and predictability with regard to the governing law and are far from being a Holy Grail for the conflict of laws of cultural property, whether on a national level or within the European Union.

Lex Rei Sitae and the EU Internal Market – towards mutual recognition of property relations

For as long as our modern legal systems exist they have operated on the basis of the lex rei sitae rule. As an expression of the principle of territoriality, the law of a country applies to all objects that are situated on the territory. In domestic cases, of course, the regular rules apply, but in international disputes a legal system uses its own rules to be able to apply its own domestic law. The doctrine of lex rei sitae becomes relevant in a situation in which two legal systems come into contact with one another. A conflict of laws or conflit mobile arises when the law of one country is to be applied in the law of another country. Over the last centuries an intricate system of rules has developed with which private international lawyers resolve conflict of laws by pointing towards one of these legal systems as the applicable law. They do so - at least in theory - blindfolded, so that they cannot favor one legal system over the other. Instead of choosing one system over another, a set of impartial and objective rules is used to determine what legal system is to be applied. Private international law theory is, however, less facilitative in practice. In the European Union there is an internal market in which there is free movement of goods, persons, services and capital. This internal market is governed by principles and theory that are very different from the principles and theory underlying private international law. EU law works on the basis of a market functionalism that seeks to allow legal relations to remain to be governed by their country of origin. Property private international law rules are aimed to have legal relations governed by the host country. This tension between two opposite viewpoints is part of a larger tension between the unifying nature of EU Law and the procedural autonomy of the EU Member States. Rather than having EU law decide what is to be the applicable law, in general private international law cases, the host country, i.e. the lex fori, decides this by itself. In the past decade, however, many private international law rules have become EU law to centralise the rule deciding on applicable law and jurisdiction. The EU has therefore claimed competence in the area of applicable law and jurisdiction. However, when property law has been concerned, mostly connection has been sought, also at the EU level to the traditional lex rei sitae rule. In practice however, also an EU lex rei sitae rule turns out to be difficult to apply. The best example of this is perhaps the EU Succession Regulation that allows one single legal system to be applied to an entire cross-border succession case.

The lex rei sitae and Its Neighbours – Debates, Developments, and Delineating Boundaries Between PIL Rules

The lex rei sitae and Its Neighbours – Debates, Developments, and Delineating Boundaries Between PIL Rules

The disconcerting exercise of finding and applying the lex rei sitae in Cyberspace

The disconcerting exercise of finding and applying the lex rei sitae in Cyberspace

Lex Rei Sitae and the EU Internal Market - Towards Mutual Recognition of Property Relations

For as long as our modern legal systems exist they have operated on the basis of the lex rei sitae rule. As an expression of the principle of territoriality, the law of a country applies to all objects that are situated on the territory. In domestic cases, of course, the regular rules apply, but in international disputes a legal system uses its own rules to be able to apply its own domestic law. The doctrine of lex rei sitae becomes relevant in a situation in which two legal systems come into contact with one another. A conflict of laws or conflit mobile arises when the law of one country is to be applied in the law of another country. Over the last centuries an intricate system of rules has developed with which private international lawyers resolve conflict of laws by pointing towards one of these legal systems as the applicable law. They do so - at least in theory - blindfolded, so that they cannot favor one legal system over the other. Instead of choosing one system over another, a set of impartial and objective rules is used to determine what legal system is to be applied. Private international law theory is, however, less facilitative in practice. In the European Union there is an internal market in which there is free movement of goods, persons, services and capital. This internal market is governed by principles and theory that are very different from the principles and theory underlying private international law. EU law works on the basis of a market functionalism that seeks to allow legal relations to remain to be governed by their country of origin. Property private international law rules are aimed to have legal relations governed by the host country. This tension between two opposite viewpoints is part of a larger tension between the unifying nature of EU Law and the procedural autonomy of the EU Member States. Rather than having EU law decide what is to be the applicable law, in general private international law cases, the host country, i.e. the lex fori, decides this by itself. In the past decade, however, many private international law rules have become EU law to centralise the rule deciding on applicable law and jurisdiction. The EU has therefore claimed competence in the area of applicable law and jurisdiction. However, when property law has been concerned, mostly connection has been sought, also at the EU level to the traditional lex rei sitae rule. In practice however, also an EU lex rei sitae rule turns out to be difficult to apply. The best example of this is perhaps the EU Succession Regulation that allows one single legal system to be applied to an entire cross-border succession case.

KOLIZIONOPRAVNO CEPANjE ZAOSTAVŠTINE USLED PRIMENE USTANOVE RENVOI I UKLANjANjE NASTALIH PROTIVREČNOSTI PRAVNIH NORMI

In Serbian private international law the so called scission of succession estate and application of several national laws to the different parts of deceased’s estate may be caused by renvoi (Art. 6 Serbian PIL Act). It may particularly happen when the conflict rule on succession of Art. 30 Serbian PIL Act refers to the foreign law whose conflict of law rules accept the concept of plurality of succession (scission of estate) which implies application of lex rei sitae to immovable property and application of personal law of deceased to movable property. In this paper author analyses the phenomena of scission of estate and institute of renovi by which scission could be caused, deals with the problem of contradictions of legal norms which arises as a consequence of application of two or more succession statutes and explains how these contradictions may be avoided by using the adaptation method of private international law.

"Коллизионный вопрос" в деле об обращении взыскания на недвижиое имущество, находящееся в залоге

The article considers the issues dealing with the determination of jurisdiction and substantive law, which to be applied in case of foreclosure of the mortgaged real estate, if the mortgage legal relationship is «complicated» by a foreign element. These issues conventionally referred by the author of the article as the «collision problem». The most legally- significant facts influencing on the choice of applicable rule of law are determined. The author of the article analyzed the legal rules of the sources of law in force at the international and national levels. Attempt to resolve the «collision problem» is undertaken. The author defends the position in accordance with if the mortgaged property is located in the Russian Federation and the mortgagee is foreign, localizator «lex rei sitae» shall not be used in the determination of the substantive law which to be applied.

Succession, Registration and the Extraterritorial Application of the lex rei sitae

Succession, Registration and the Extraterritorial Application of the lex rei sitae

THE COMMON-LAW AUTHORS ON CONTRACTUAL CAPACITY IN PRIVATE INTERNATIONAL LAW

Contractual capacity in private international law concerns the law applicable to the competence of a natural person to create rights and duties by concluding a contract with another (natural or juristic) person or persons. Sometimes it is implied that contractual capacity is no longer such an important issue in private international law due to, for instance, the emancipation of married women. However, it is suggested that this development indeed increases the relevance of the topic, as today a husband’s contractual capacity could be dependent on the consent of his spouse, while a century ago this was invariably the position only in respect of the wife’s contractual capacity. In any event, there may be many non-Western legal systems where a married women’s contractual capacity remains limited. In respect of the age of majority, it is true that many legal systems now accept 18 years as the legal age. Nevertheless, a substantial minority of legal systems adhere to ages above or below. Contractual capacity may also be affected by mental illness, curatorship (for instance, in the case of prodigality and insolvency) or emancipation. It is therefore clear that contractual capacity continues to play an important role in private international law.Nonetheless, the law in this regard is far from clear in South Africa. There is authority in case law for the lex rei sitae or the lex situs (the law of the country where the property is situated) to govern capacity in contracts involving immovable property. In respect of other contracts, the courts have applied the lex domicilii (the law of the country of domicile), the lex loci contractus (the law of the country where the contract is concluded) and the (putative) (objective) proper law of the relevant contract. A clear choice between these legal systems has not yet crystallised. There is also no Supreme Court of Appeal (nor Constitutional Court) decision in this regard and therefore no binding authority.An investigation of the views held by the common-law authors on contractual capacity in private international law may therefore prove valuable in addressing the issue. An analysis is offered in the concluding remarks on whether the views held by the authors have been received in South African case law.

Otro punto de vista sobre el caso Odyssey

The analysis of the legal issues raised by the Odyssey case might be addressed through various approaches: with regard to the most radical approach in terms of conflict of interest, it seems more appropriate to adopt, as starting point, a conciliatory position based on the idea that the access and dissemination of the culture and the underwater archaeology are fully compatible with the existence of national historical heritage and the preservation of the cultural identity of the flag state. Within such problems, the Private International Law question relating to the determination of the law applicable to the litigious course will vary radically with regard to the solutions that will be dispensed by a Spanish court under the ship and cargo from being considered as a unit or separately. The significant differences arisen in the Odyssey case in comparison with other cases lead us to refuse the thesis which considers the shipment as a unit along with the vessel, as well as to consider the shipment itself as an independent element. Once discarded their qualification as cultural property under special protection in terms of art. 40.1 LPHE, the governing law should be ascertained according to the conflict-of-laws rule stated in art. 10.1 Spanish Civil Code; however, as a result of the impossibility of the application of the lex rei sitae , it seems to prevail the general criteria provided by the Spanish law as lex fori, which grants the right of the property to the discoverer of the abandoned goods.

Cracking the Citadel Walls: A Functional Approach to Cosmopolitan Property Models Within and Beyond National Property Regimes

Due to its strong connection with sovereignty, territoriality and socio-economic policies, property law is traditionally considered part of the closed citadel of national law. This axiom is reinforced by private international law, where the mandatory principle of lex rei sitae acts as a barrier against the cross-fertilization of national property systems. No international treaty has ever touched the field directly; even in Europe, in spite of the interference of EU acts on national property laws, the Lisbon Treaty leaves property in the exclusive competence of Member States. It is not by accident that the majority of comparative law scholars approach the subject with a state-centric perspective, often emphasising the unbridgeable divide between different property traditions. Today the citadel is under multilateral attack. Bilateral investment treaties (BITs) and other international agreements break long-lasting dogmas and extend the scope of property to cover not only intangible assets, but also contractual rights and expectations. 'Cosmopolitan' human rights courts use a sui generis compara- tive approach to develop a similar autonomous conceptualisation of subject matter, structure, and content of property rights, while the potential horizontal effects of their decisions nullify the traditional constitutional/private law property divide. Internet and private ordering push for the cross-border recognition of virtual or quasi-proprietary entitlements, questioning the fundamental separation between property and contract and the sanctity of the numerus clausus principle. No matter how vigorously legal formants have tried to reinforce the citadel walls, these cos- mopolitan 'irritants' have already engendered several interpretative short-circuits, which a state-centric comparative analysis is unable to deconstruct and explain. To overcome the impasse, this paper advocates for the adoption of the functional method to verify the existence of a new global property model, sketch out its main characteristics, and help national legal systems embedding these new cosmopolitan elements, whether within or outside property law.

Lex Rei Sitae in Perspective: National Developments of a Common Rule?

The policies of the European Union (EU) do not always go hand in hand with the national policies of the Member States. Often there is tension, even a misfit, between the two. EU decision-making, or better, EU legislation already has many effects on the national legal orders in the Member States and from time to time creates problems at Member State level. While one of the primary goals of the EU is to facilitate cross-border movement, Member States traditionally coordinate the legal effects of such cross-border movement themselves through the rules of private international law (PIL). These PIL rules are national law and are generally aimed at fostering the efficient solution of problems caused when several legal systems apply to a cross-border situation.In respect to property law there is a single simple PIL rule in the lex rei sitae, the rule that determines the applicable law as the law of the place where an object of a property relation is situated. Having its origin in the Middle Ages, the rule has survived all of the modernising efforts in private international law. Where in other fields there is more attention for balancing the parties interests, the lex rei sitae rule survives until today. However, there are significant differences in the way in which legal systems apply the rule and, therefore, in the effects the rule produces. Property law aspects of private international law do not receive the attention they deserve. In this paper we week to uncover the origins and applications of the lex rei sitae rule, shared between French, German, Dutch and English law. These legal systems have in common that they use lex rei sitae to protect their own national legal order, be it with significant differences between them.This, so we conclude, is increasingly problematic in the context of the EU Internal Market, where there is free movement of goods, persons, services and capital. The misfit between EU policy, the well functioning of the Internal Market and national policy, the protection of the national legal order, is increasingly becoming more difficult to justify.

The new Succession Regulation: The lex rei sitae rule in need of a reappraisal?

The new Succession Regulation: The lex rei sitae rule in need of a reappraisal?