Private Law Relations Research Articles

CURRENT TRENDS OF THE JURISDICTIONAL IMMUNITY DEVELOPMENT OF A FOREIGN STATE UNDER THE LAWS OF THE UNITED STATES OF AMERICA

The article examines the current trends in legal regulation of relations on granting jurisdictional immunity to a foreign state in the legal systems on the example of the United States of America. The author identifies the main principles of development of this institution, their reflection in the rules of law, and emphasizes the existence of problems associated with the application of state immunity in private law relations. The author substantiates the expediency of analyzing the most optimal legal positions reflected in US law and tested in international practice. The role of judicial practice in this process is shown. The article analyzes the origins of limited immunity in the United States and emphasizes the need to improve legislation and unify the rules of private international law in this area.

The constitutional right to a jury trial and a fast trial: the experience of the United States, international private law, international public law

International private law and international public law are branches of law that regulate various aspects of relations between states and other subjects. Their interaction is a multifaceted process that multifacetedly reflects various aspects of relations between states and directly affects both relations between legal entities and international politics. On the one hand, these two branches of international law hav e common goals and principles, such as ensuring justice, equality and protection of human rights. On the other hand, there are differences that can lead to a conflict between the norms of these branches of law. In such cases, it is necessary to decide which norm should be applied. In the context of interaction, the question of applying the norms of international law to private law relations arises. In some cases, norms of international law can be applied directly to private law relations. In such cases, norms of international law have priority over norms of national law. The Russian invasion of Ukraine was a serious violation of international law. In response to this violation, Ukraine and other countries implemented a number of measures aimed at protecting people's rights and security. It is important that the norms of international and public law continue to be applied in Ukraine to protect the rights and safety of people. Armed conflicts are usually accompanied by large-scale human rights violations, such as killings, torture and deportation. In such conditions, it is important that the norms of international and public law continue to be applied to protect the rights and safety of people. However, the application of these norms may be complicated due to the special conditions of an armed conflict. In this work, an attempt is made to outline the main aspects of the interaction between private international law and public international law from the point of view of conflict, norms and their regulation in the context of the historical approach and modern challenges.

Применение категории «публичный интерес» в регулировании частноправовых отношений

Introduction. The paper defines the immediacy of the problem of identifying the essence of the category “public interest” in the regulation of private law relations. The correlation of private and public interests in Russian law is established. The materials of the legal doctrine and the positions of the higher courts on this concept are analyzed. The signs of public interest in private law are determined. In legal doctrine, the category of “public interest” is very actively used by research scientists. However, there is no explanation of this term at the legislative level, which clearly does not contribute to its uniform understanding in judicial practice and law enforcement activities in general. Due to the high importance of public interests in any state and the absence of a legal definition in Russian legislation, it seems relevant to identify the essence of the category of “public interest” and its main characteristics. The purpose of the study is to identify current trends in judicial practice and analyze the development of legislation on the application of public interest in private law relations. Methods. The general scientific and special methods of cognition were used in the preparation of the paper. The dialectical-materialistic method predetermined the study of the concept of public interest in relation to the private legal sphere. The system method, methods of analysis and synthesis, the formal legal method, and the method of interpretation of the norms of law were also used. Results. The study has analyzed the acts of the Supreme Court of the Russian Federation and the lower courts (the ruling of the Supreme Court of the Russian Federation of 21.09.2022 in case No. 306-ES22-6854; the decision of the Arbitration Court of Appeal of Saratov in case No. A12-32901/2021 of 28.03.2022; the decision of the Arbitration Court of the Astrakhan region of 08.12.2022 in case No. A06-7754/2021). It is proved that the analysis of these acts allows us to conclude about the negative consequences of the introduction of public interest in the sphere of regulating private law relations. Conclusions. The authors have substantiated the need to consolidate the definition of the concept of “public interest” at the legislative level and propose the authors’ vision of this concept. It is argued that when considering cases between individuals or legal entities, the court’s reference to the public interest is not permissible.

Трансформация судебной защиты прав потребителей в условиях санкционного давления на Российскую Федерацию

Introduction. The civil legislation sphere is the fundamental basis of private law relations. At the same time, civil legislation is most affected by various circumstances impacting both substantive and procedural law. Recently, the impact of sanctions pressure on the Russian Federation has been an urgent topic, which is naturally reflected in the development of civil law relations. The impact of the sanctions of foreign states is particularly pronounced in the field of consumer protection, since foreign companies are abandoning the Russian market and consumer problems remain unresolved. Consumer protection in the context of sanctions pressure on the Russian Federation is an important task for the legal science, both from the material and procedural sides, and is associated with the need to develop appropriate solutions. Since the science of civil law is faced with the task of developing various ways of solving problems in the field of consumer protection under sanctions pressure, this is the purpose of the study. Methods. The methodological framework for the research is a set of methods of scientific cognition, among which the main ones are analysis, synthesis, generalization, and comparative jurisprudence. Results. Within the framework of the study, the author has analyzed the role of existing legal norms on consumers’ remedies from the point of view of their enforcement in the conditions of sanctions pressure on the Russian Federation. Based on the analysis, it is concluded that, on the one hand, the existing legislation on consumers’ remedies fulfills its main function but does not correspond to modern economic conditions of development as a result of the abandonment of foreign companies. The application of the norms of substantive law cannot be fair and expedient in situations where the consumer remains in an economically disadvantageous financial situation. The author of the study has proposed a solution by improving the norms of substantive law in the field of consumer protection, whose change will direct law enforcement to the path of a fair resolution of cases. From the author’s point of view, a legislative proposal to amend the Law on Consumer Protection seems optimal, which will allow solving this problem not only with substantive but also procedural law. The legislative initiative applies to cases where it is impossible to implement the plaintiff’s claim due to force majeure and consists of empowering the court to independently replace the claim with a similar one so that the interests of the consumer are not violated.

Legal Regulation of International Employment Relations in the Republic of Latvia, Republic of Lithuania, and Ukraine

The article focuses on the analytical and comparative aspect of legal regulation of international relations in the Republic of Latvia, Republic of Lithuania, and Ukraine. Law of the Republic of Latvia, the Republic of Lithuania, and Ukraine applied to employment relations complicated by a foreign element is authentic. This authenticity means that first, each of the states has its own source of legal regulation of these private law relations with a foreign element different by titles and/or type of legal acts (the Labour Law in the Republic of Latvia, the Labour Law in the Republic of Lithuania, Law of Ukraine "On Private International Law"). Second, the conflict of laws provisions are different in the Republic of Latvia, the Republic of Lithuania, and Ukraine. The study presents the article-by-article digest of the Labour Law in the Republic of Latvia, the Labour Law in the Republic of Lithuania, Law of Ukraine "On Private International Law" meant for legal regulation of international employment relations. Thus, the Latvian legislators assign certain obligations to employers when it comes to seconding employees to work in the Republic of Latvia and abroad.
 The Lithuanian legislators set: first, the rules to be applied to the employment relations with seconded employees; second, the specifics of regulation of employment relations in diplomatic missions and consular institutions of the Republic of Lithuania; third, the authentic approach to regulation of employment relations when it comes to water, air, and automotive vehicles; fourth, the rules to be applied to individual employment relations; fifth, the rules to be applied to collective employment relations.
 The Ukrainian legislators point to, first, the authentic nature of legal regulation of employment relations with the Ukrainian nationals working abroad; second, the specificity of legal regulation of employment relations with foreigners and stateless persons working in Ukraine.

Family Ties from the Perspective of Property Division Deeds

The basic unit of Hungarian private law relations before 1848, especially from the point of view of the nobiliary private law, was not so much the individual as the family. Although the person who acquired the right could be the individual, the right over the property acquired by him usually extended beyond his person to other members of his family living in a blood relationship with him, to his relatives whom he had to divide his property, such as his (mainly male) children, brothers and sometimes sisters, and, where appropriate, to his more distant collateral relatives. This study attempts to present family law relations in the early modern Hungary through a special group of documents, the wills and property division deeds. The basis of the investigation in the present study are the wills and division deeds of some Hungarian noble families from the 17th-19th centuries, which played a decisive role in national politics, but due to the scope of the study these are only arbitrarily selected, without aiming for completeness.

Государство как сторона искового производства по российскому праву

The article deals with the problem of correlation of the civil-legal status of the state as a subject of private law, with its procedural-legal status as a party to the action proceedings. It is shown that within the framework of private law relations the state realizes the public interest, changes to the current procedural legislation are proposed.

Нотариальные действия как средство защиты прав государства

The article analyzes the problem of protecting the rights and interests of the state in the context of notarial activities. The author proceeds from the dualistic nature of the domestic notaries, but considers it as a means of legal protection and protection of not only private, but also public rights and interests. It is shown that the state can act as a subject of not only public law, but also private law relations, without changing the fundamental principles of civil circulation. Emphasis is placed on the fact that participating in private law relations, the state, nevertheless, implements public interests. The issue of notarization of civil law transactions, in which the state is a participant, is considered, proposals are made to improve the current legislation in terms of fixing the mandatory notarization of arbitration agreements with the participation of the state, a notarized mediation agreement as a basis for refusing to accept a statement of claim, as well as a special status of a notary certified transaction as “indisputable evidence” in cases of action proceedings.

Community Law (Lex Communitas) as a Modern Stage in the Lex Mercatoria Development

The concept of the medieval lex mercatoria is experiencing a renaissance in the context of the global spread of information and communication technologies and the scaling of cyberspace. Globalization was replaced by networkization, which gave rise to the phenomena of networks, network communities, network communications, and network law. The author has chosen an appropriate research angle — a look at the lex mercatoria through the prism of the current network world order. This led to the conceptualization of lex communitas as «community law», which is the main object of the study. Lex communitas is considered as a modern historical form of lex mercatoria, mediating the non-state rule-making of international professional communities, the multiplying functional subsystems of which include lex informatica, lex sportiva, lex constructionis, lex petrolea, lex proprietas intellectualis, lex cryptographia, sustainable business law (sustainable business law), etc. Affiliation with one or another professional community is the basis for the application of the norms of lex communitas. This approach, in a sense, opens up prospects for posing the problem of the grounds for legitimacy, of ways to legitimize the norms of non-state regulation in the subject area of private international law. The concept of lex communitas correlates with how the modern system of resolving cross-border private law disputes is being transformed, increasingly moving to an extrajudicial plane: from international commercial arbitration to platform and decentralized systems. The paper attempts to identify certain features of the current stage of development of the lex mercatoria, the quantitative composition of the norms of which is rapidly multiplying in parallel with the ongoing qualitative changes in the system of regulation of cross-border private law relations.

The Methodological Significance of Werner Maihofer’s “legitimate expectation” Category for the Judicial Practice of the Supreme Court


 
 
 The article is devoted to the analysis of the actual judicial practice of the Supreme Court regarding the interpretation and application of the concept of “legitimate expectations.” For the purpose of a detailed analysis of this institute, the scope of its application by the Supreme Court is conditionally divided by the author into three separate blocks: 1) regarding the protection of property rights − reasonable expectations as a component of the concept of “property;” 2) regarding the proper implementation of their own competence by subjects of authority; and 3) regarding the good faith and reasonable behavior of equal participants in legal relations. It has been established that each of these blocks has an excellent understanding of the idea of legitimate expectations, the order and conditions of its application by the Court. Two polar positions of the Court are followed: if in one case the Court satisfies the claim, recognizing that legitimate expectations are violated, referring to their rootedness in the very essence of the legal relationship (i.e. regardless of the legal norm), then in the other case − it refuses to satisfy the claim due to the lack of normative consolidation of the right or interest, for which such an expectation could arise. The author substantiates the statement that the inconsistency of the Supreme Court, the inconsistency of its positions regarding the application of the concept of legitimate expectations is largely due to the lack of an appropriate doctrinal foundation. The idea of “reasonable”/“natural”/“legitimate” expectations proposed by the existentialist legal philosopher Werner Maihofer (1918–2009) could, in the author’s opinion, become this doctrinal core and contribute to the unification of the understanding of the category of legitimate expectation in judicial practice. A separate aspect of the research was the clarification of the presence/absence of connections between the modern judicial interpretation of the concept of “legitimate expectations” and its doctrinal interpretation − the views of Maihofer and establishing the possibility of applying the ideas of the German philosopher of law for the doctrinal justification of the institution of legitimate expectations within those limits and at preservation of those contents which are necessary and sufficient for effective legal protection. In the investigation proposed by the author, the need to take into account in the judicial practice of the Supreme Court the arguments of the German philosopher of law regarding legality and the need to protect such an expectation that arose as a result of established and desirable or permissible behavior in the social community, which, however, is not supported by a legislative norm. Moreover, the application of such an approach should be the basis of all positions of the Court in which we are talking about legitimate expectations, regardless of whether such expectations arose on the basis of an existing right or interest, or a potential, “future” right, or related they are related to the powerful activity of authorized subjects, or arose on the basis of private law relations, etc.
 
 

The Limits of Analogy in the Private Legal Status of the Beneficial Owner of a Legal Entity

The author reveals the inconsistency of judicial practice on the issue of the private legal status of beneficial owners (final beneficiaries, beneficiaries) of a legal entity: in cases of challenging decisions of general meetings of participants and transactions of such legal entities, courts without proper references to the legal basis tend to recognize the beneficiaries of the right to appropriate claims, and in disputes over their demands for information the activities of the corporate entities actually controlled by them are denied on the grounds of the lack of grounds for applying the analogy of the law, considering the silence of the legislator about the relevant protective instrument of the beneficiary qualified. Due to the absence of special rules on the presence or absence of analyzed protective capabilities of beneficial owners, the effectiveness of analogy as a traditional means of overcoming legal gaps has been tested. The prospects of the analogical introduction of the public-law concept of "beneficial owner" into the structure of the private-law status of legal entities are evaluated. The development of a formal approach based on the absence of a direct legal connection of the beneficiary with the organization controlled by them is not excluded. It is concluded that it is necessary to develop a unified judicial approach to the possibility of an analogical application of public-law rules on the figure of beneficial owners to private-law relations with their indirect participation before the legislative solution of the issue under study.

PARTICIPATION OF THE RUSSIAN FEDERATION IN TREATIES ON PRIVATE INTERNATIONAL LAW

This article discusses the types and contents of international treaties to which the Russian Federation is a party, types of agreements are designed to regulate many legal relations in various fields of national and social life involving foreign factors. KEY WORDS: Legal relations, private law relations, private international law, conventions

The Privatisation of Private (and) International Law

Abstract Privatisation is much studied and debated as a general phenomenon, including in relation to its legal effects and the challenges it presents to the boundaries of public and private law. Outside the criminal context there has however been relatively limited focus on privatisation of the governmental functions which are perhaps of most interest to lawyers—law making, law enforcement and dispute resolution—or on the international legal implications of privatisation. This article argues that modern legal developments in the context of private law and cross-border private legal relations—generally known as party autonomy in private international law—can be usefully analysed as two distinct forms of privatisation. First, privatisation of certain allocative functions of public and private international law, in respect of both institutional and substantive aspects of private law regulation, through the legal effect given to choice of court and choice of law agreements. Second, privatisation of the institutional and substantive regulation of private legal relationships themselves, through arbitration and the recognition of non-state law. Together, these developments have established a global marketplace of state and non-state dispute resolution institutions and private laws, which detaches private law authority from its traditional jurisdictional anchors. Analysing these developments through the lens of privatisation highlights a number of important critical questions which deserve greater consideration—this article further examines in particular whether this form of privatisation in fact increases efficiency in either private international law decision-making or private law dispute resolution, as well as its distributive and regulatory effects.

The contract as the ground for the emergence of rights and obligations regarding restricted turnover objects in civil trade

Contractual obligations that arise in relation to restricted turnover objects have recently become widespread in practice, which is due to rapid social development. Despite this, the specifics of the procedure for concluding, changing or terminating such transactions have not been clearly defined at the legislative level. In addition, the peculiarities of the contractual alienation or transfer of objects restricted in turnover have remained poorly studied by the scientific community.The importance of a civil legal contract as one of the main regulators of private law relations is difficult to overestimate. Thanks to the possibility to enter into contracts fixed at the legislative level, subjects of civil law are able not only to establish, change or terminate their civil rights and obligations, but also to involve in civil trade various objects of civil law, including those that have been limited in turnover.The national legislator allows the use of contractual constructions of various kinds to ensure the turnover of objects of civil rights. This has been directly indicated by the content of Art. 178 of the Civil Code of Ukraine. Its systematic analysis has proved that objects restricted in turnover can be alienated, that is, they can be transferred from the ownership of one person to another with the help of contracts of sale, donation, exchange, etc.The contract is one of the main legal means of attracting restricted turnover objects of civil rights to trade. The legislator envisages the possibility of subjects of obligation law to use various types of contracts to settle legal relations that arise in relation to restricted objects. The influence of the studied objects on the principle of freedom of contract can’t be denied. It manifests itself in limiting the range of subjects of contractual obligations, the terms of existence of contractual relations, the possibility of choosing the type of contract that will mediate the mutual rights and obligations of the parties, etc.

A Digital Ruble as a Central Bank Obligation

The paper is devoted to the issues of monetary emission in general and the emission of digital money in particular. The author examines various approaches to the currency issuance and their security. The author enters into a discussion with supporters of the return of the gold-backing of the monetary issue and supports the position concerning the natural loss for gold of such a designation. The exclusive right of the state represented by the Central Bank to issue money, including the digital ruble, is defended as a manifestation of monetary (currency) sovereignty. It is proved that the appearance of the Central Bank’s digital currency (the digital ruble) does not change the nature and essence of money. The author disagrees with the proposal to transfer the emission function to another public authority and claims it to be as completely groundless. The nature of the Central Bank’s emission obligation is defined as public law nature, since the Central Bank’s obligation does not lie in the plane of private law relations, but in the public law sphere and its content is to ensure the stability of the ruble, which means ensuring the overall financial stability of the state.

Review of the Book “Drept internațional privat” [Private international law], Author - Dumitrița Florea, Lumen Publishing House, Iasi, 2022

The book by the author Dumitrița Florea reflects the concerns for the regulation of private international law analyzed both through the lens of domestic law and the applicable European regulations in this field. The present paper highlights the study of some aspects related to private law relations with an element of foreignness, the specific sources of international law, the application of foreign law or the legal condition of the foreigner. The private international law relationship differs from the domestic law relationship by the existence of an element of extraneousness, which represents a factual circumstance related to a legal relationship due to which this relationship is related to several legal systems. It follows that the determination of the elements of extraneousness and the effects they produce differ from one legal system to another.

ZAKON O MEĐUNARODNOM PRIVATNOM PRAVU U BOSNI I HERCEGOVINI – RETROSPEKTIVA I PERSPEKTIVA NORMATIVNOG UREĐENJA

The Private International Law Act in Bosnia and Herzegovina is not harmonized with the acquis of the European Union. Future legislative intervention in this area is pri- marily conditioned by the process of joining Bosnia and Herzegovina to the European Union. Bearing in mind the year of adoption and entry into force of this Act, it is not surprising that numerous legal institutes of contemporary private international law, present not only in EU legislation and international conventions, but also in national codifications of private international law of other countries, remained unknown to this law. Considering the complex constitutional structure of Bosnia and Herzegovina and the division of legislative responsibilities, which in the case of regulation of private law relations, including those with a foreign element, are placed under the jurisdiction of the entities (FBiH, RS, BD) the authors analyze possible solutions and directions for future reform of this Act. Key words: PIL Act, reform, EU integration process, harmonization

PRESUMPTION OF WEAKNESS OF A PARTY TO A PRIVATE LAW RELATIONSHIP

Abstract: the article is devoted to the problem of the irrefutable weakness of some legal statuses of subjects of private law relations. In order to overcome this problem and preserve the protection of a really weak participant in a private law relationship, the author considers the use of the legal construction of presumption to be effective. The content of this presumption is determined, which consists of two aspects: material and procedural. The ways and consequences of its refutation are revealed. The following legal statuses of subjects for the possibility of securing a presumption are analyzed: the consumer, the joining party to the contract, the requesting party for the conclusion of a public contract, an employee in labor relations, a minority shareholder, a creditor, a minor, a disabled and needy family member. Amendments to the current legislation are proposed in terms of fixing norms‐presumptions, as well as necessary systemic changes in procedural norms.

Role of Private Law for Europe’s Digital Future

The digital transformation of the EU single market actualizes numerous issues regarding the regulation of private law relations in the digital market. The key issue is whether the digital transformation requires a complex reform of the existing rules brought by the European legislator to provide for individual rights in various private law relations in the offline market (e.g., consumer contracts, labor contracts, and contracts on the provision of services in individual economic sectors), and if that is the case, how this reform must be implemented. An answer to this question mostly depends on whether, by the existing legal instruments in the digital market, namely efficient protection and enforcement of fundamental rights, EU market freedoms and individual rights can be ensured in the same way they are protected in the offline market. This paper deals with the changes in the regulation of EU private law relations caused by the establishment of the Digital Single Market. The main aim is to consider the perspectives of the EU private law in the digital transition, and whether a different approach to the regulation of private law relations in the digital market is necessary.

Principles of Law and ESG Standards in Socially Responsible Entrepreneurship

The paper provides a theoretical justification of ESG standards as a potential modification of the principles of law in establishing and running a socially responsible business. The framework of traditional discussions about the degree of state participation in the economy, as well as about the state as a subject of private law relations, can be expanded by posing a general theoretical question of practical implementation about what the boundaries and limits of interaction and mutual influence of legal and other social regulators are and how useful the cumulative effect of their regulatory impact for sustainable development is. These boundaries and limits constitute today a universally recognized prospect for the humanity. Being the principles of sustainable development in relation to the creation and conduct of business, ESG standards have the quality of social normativity, but currently they are at a stage of functioning when a uniform understanding of key terminology has not yet been achieved, which leads to different approaches to the formation and regulation of this area. The paper analyzes the concept of ESG standards, as well as their components in the aspect of comparison with the principles of law. The points of contact between ESG standards and private law principles take place due to their common nature as basic ideological prescriptions. It is shown that stability, system-forming character and functionality, being parameters of ESG standards, are extremely close to the principles of private law, they are consistent with them, which makes it possible to effectively combine various methods of normativer regulation of entrepreneurial activity that meets modern needs and expectations of society. This task is especially relevant for Russia, given the high regulatory burden on business, as well as negative stereotypes of mass consciousness in the perception of entrepreneurship as such.