International private law. Cheat Sheets PIL is an independent system of law acting along with


  • The concept and system of international private law
    • The concept and subject of private international law
    • The place of international private law in the system of law, its basic principles
    • Normative structure of private international law
    • Methods of regulation in private international law
    • Unification and harmonization of norms of private international law; the role of international organizations in its development
  • Sources of private international law
    • The concept and specifics of the sources of international private law
    • National law as a source of private international law
    • International law as a source of private international law
    • Judicial and Arbitration Practice as a Source of International Private Law
    • Doctrine of law, analogy of law and law, general principles of law of civilized peoples as a source of private international law
    • Autonomy of the will of the subjects of legal relations as a source of private international law
  • Conflict law - the central part and subsystem of private international law
    • Basic principles of conflict of laws
    • Collision norm, its structure and features
    • Types of conflict rules
    • Interlocal, interpersonal and intertemporal law
      • interpersonal law
      • Intertemporal law
    • Main types of collision bindings
      • Law of nationality (personal law) of a legal entity
      • The law of the location of a thing
      • Law of the country of the seller
      • Law of the place of the act
      • Law of place of offense
      • Debt currency law
      • court law
      • The law chosen by the parties of the legal relationship (autonomy of will, the right to choose the law by the parties, a clause on the applicable law)
    • Contemporary Issues conflict law
    • Qualification of the conflict rule, its interpretation and application
    • Limits of application and effect of conflict rules
    • The theory of references in private international law
    • Establishing the content of foreign law
  • Subjects of private international law
    • The position of individuals in private international law; determination of their civil legal capacity
    • Civil capacity of natural persons in private international law
    • Guardianship and guardianship in private international law
    • Legal status of legal entities in private international law
    • Specifics of the legal status of transnational companies
    • Legal status of foreign legal entities in the Russian Federation and Russian legal entities abroad
    • The legal status of the state as a subject of international private law
    • The main types of civil legal relations with the participation of the state
    • International Intergovernmental Organizations as Subjects of Private International Law
  • Property law in private international law
    • Conflict of ownership issues
    • Legal regulation of foreign investments
    • Legal status of foreign investments in free economic zones
    • Legal status of property of the Russian Federation and Russian individuals abroad
  • Law of foreign economic transactions
    • General provisions
    • Conflict issues of foreign economic transactions
    • Scope of the obligation status for foreign economic transactions
    • Form and procedure for signing transactions
    • International legal unification of the law of foreign economic transactions
    • International trade custom
    • The "lex mercatoria" theory and non-state regulation of foreign economic transactions
    • Contract of sale
    • Obligations of the parties in the contract for the international sale of goods
    • Contract for the exclusive sale of goods
    • franchise agreement
    • Leasing agreement
  • International transport law
    • General provisions of international transport law
    • International rail transport
    • Legal relations in the field of international rail transport
    • International road transport
    • Legal relations in the field of international road transport
    • International air transportation
    • Legal relations in the field of international air transportation
    • Air transportation on attracted vessels
    • International shipping
    • Relationships associated with the risk of navigation
    • Legislation of the Russian Federation in the field of merchant shipping and navigation
  • International private monetary law
    • The concept of "International private monetary law". financial leasing
    • Factoring agreement
    • International payments, currency and credit relations
      • International payments
    • Forms of international payments
    • International settlements using a bill of exchange
    • International payments using a check
    • Legal specifics of monetary obligations
  • Intellectual Property in Private International Law
    • Concept and features intellectual property
    • Specifics of Copyright in Private International Law
    • International copyright and related rights protection
    • Specifics of industrial property law in private international law
    • International and national regulation of invention law
  • Marriage and family relations in private international law (international family law)
    • The main problems of marriage and family relations with a foreign element
    • Marriages
    • Divorce
    • Legal relationship between spouses
    • Legal relationship between parents and children
    • Adoption (adoption), custody and guardianship of children
  • Inheritance legal relations in private international law (international inheritance law)
    • The main problems in the field of inheritance relations complicated by a foreign element
    • Legal regulation of inheritance relations with a foreign element
    • Inheritance rights of foreigners in the Russian Federation and Russian citizens abroad
    • The mode of "escheat" property in private international law
  • International private labor law
    • Conflict problems of international labor relations
    • Labor relations with a foreign element under the legislation of the Russian Federation
    • Accidents at work and "crippled" cases
  • Obligations from torts in private international law (international tort law)
    • The main problems of obligations from offenses (torts)
    • Foreign doctrine and practice of tort obligations
    • Tort Liabilities with a Foreign Element in the Russian Federation
    • Uniform international legal norms of tort obligations
  • International civil procedure
    • The concept of international civil process
    • The principle of "law of the court" in international civil proceedings
      • The "law of the court" principle in international civil litigation - page 2
    • National legislation as a source of international civil procedure
    • International treaty as a source of international civil process
    • Auxiliary sources of international civil procedure
      • Auxiliary sources of international civil procedure - page 2
  • Litigation of civil cases with a foreign element
    • General principles of the procedural position of foreign persons in civil proceedings
    • Civil procedural law and legal capacity of foreign persons
      • Civil procedural law and legal capacity of foreign persons - page 2
    • Legal status of a foreign state in international civil proceedings
    • International jurisdiction
    • International jurisdiction in national law
      • International jurisdiction in national law - page 2
    • International jurisdiction in international agreements
    • The presence of a process in the same case between the same parties in a foreign court as a basis for leaving the claim without consideration
    • Establishing the content of foreign law, its application and interpretation
      • Establishing the content of foreign law, its application and interpretation - page 2
    • Judicial Evidence in International Civil Procedure
    • Execution of foreign letters of request in national law
    • Execution of foreign letters of request in accordance with international treaties
    • Recognition and enforcement of foreign judgments
    • Recognition and enforcement of foreign judgments in national law
      • Recognition and enforcement of foreign judgments in national law - page 2
    • Recognition and enforcement of foreign judgments in international agreements
    • Notarial acts in private international law and international civil procedure
  • International commercial arbitration
    • Legal Nature of International Commercial Arbitration
    • Types of International Commercial Arbitration
    • Law Applicable by Arbitration
    • Arbitration Agreement
    • The nature, form and content of the arbitration agreement; its procedural and legal consequences
      • The nature, form and content of the arbitration agreement; its procedural and legal consequences - page 2
    • Recognition and enforcement of foreign arbitral awards
    • International commercial arbitration abroad
    • International commercial arbitration in the Russian Federation
    • International legal basis for the activities of arbitration courts
    • Consideration of investment disputes

The place of international private law in the system of law, its basic principles

PIL occupies a special place in the global legal system. Its main specificity lies in the fact that PIL is a branch of national law, one of the private law branches of the law of any state (Russian PIL, French PIL, etc.). It is included in the system of national private law along with civil, commercial, commercial, family and labor law.

The term "international" here has a completely different character than in public international law - it means only one thing: there is a foreign element in a civil legal relationship (it does not matter, one or more, and which version of the foreign element). However, PIL is a very specific subsystem of the national law of individual states. The relationship between private international law and other branches of national private law can be defined as follows:

The subjects of national private law are individuals and legal entities; States acting as entities of private law. This also applies to private international law. Its subjects may also be international intergovernmental organizations acting as entities of private law. All foreign persons (individuals and legal entities, a foreign state), enterprises with foreign investments, transnational corporations, international legal entities are exclusively PPP subjects.

The object of regulation of national private law is

non-state civil (in the broadest sense of the word) legal relations. The object of regulation can also be diagonal (state-non-state) relations of a civil law nature. In private international law, these relations are necessarily burdened with a foreign element.

The method of regulation in national private law is the method of decentralization and autonomy of the will of the parties. The method of its implementation is the application of substantive legal norms. This also applies to PIL, but here the main way to implement the general method of decentralization is the method of overcoming conflicts - the application of conflict rules.

The sources of national private law are national legislation (primarily); international law (which is included in the national legal system of most states of the world); arbitrage practice and doctrine; analogy between law and law. The list of sources of international private law should be supplemented by the autonomy of the will of the parties.

The scope of national private law is the national territory of a given state. This also applies to private international law, but the existence of a regional PIL (European, Latin American) and the process of forming a universal PIL should be emphasized.

Liability in national private law (including international law) has a civil law (contractual or tort) character.

The special nature and paradoxical nature of the PIL norms are already expressed in the very term - “domestic (national) international private law”. At first glance, the terminology itself produces an absurd impression: there cannot be a branch of law that is both domestic (national),

and international. In fact, there is nothing absurd here - we are simply talking about a legal system designed to directly regulate international relations of a non-state nature (arising in private life). The paradoxical nature of the PIL norms is also expressed in the fact that one of its main sources is directly public international law, which plays an extremely important role in the formation of the national PIL.

It is customary to talk about the dual nature of the norms and sources of private international law. Indeed, this is perhaps the only branch of national law in which public international law acts as a direct source and has direct effect. That is why the definition “hybrid in jurisprudence” is quite applicable to PIL.

The ratio of international public and international private law is as follows:

The subjects of international public law are, first of all, states. The international legal personality of all other entities (international organizations; nations fighting for independence; state-like entities; individuals and legal entities) is secondary and derived from the legal personality of the state. All these persons appear in international communication precisely as persons of public law. The list of subjects of international private law is exactly the same, but the main subjects of PIL are individuals and legal entities; States and international organizations (as well as other international entities) act in PIL as persons of private law.

The object of regulation of international public law is interstate (power) relations. The object of PIL regulation is private law (non-powerful) relations complicated by a foreign element.

The method of regulation in international public law has a coordinating, conciliatory character. This is a method of coordinating the wills of states; method of centralization and coordinated state regulations. The main methods of PIL are decentralization and autonomy of will, carried out by overcoming conflicts.

The sources of international public law are strictly international in nature - these are international treaties and customs, general principles of the law of civilized peoples, resolutions and recommendations of international organizations, acts of international conferences. The main source of international public law is an international treaty. The main source of PIL is national legislation, since PIL is a branch of national law.

The scope of public international law is global in nature: there is universal (general) international law, local and regional international law. PIL has primarily a national scope - each state has its own private international law.

Responsibility in public international law has an international legal character and is primarily the responsibility of states. Liability in PIL is civil liability.

The main (general) principles of private international law can be considered as defined in Art. 38 of the Statute of the International Court of Justice "general principles of law inherent in civilized nations." General principles of law are generally recognized legal postulates, methods of legal technique, “legal maxims” developed by lawyers ancient rome. The general principles of law directly applied in PIL are that you cannot transfer more rights to another than you yourself have; principles of justice and good conscience; principles of non-abuse of rights and protection of acquired rights, etc.

By "civilized nations" are meant those states whose legal systems are based on the adopted Roman law. The main general principle of private international law (as well as national civil and international public law) is the principle "the contract must be fulfilled" (contracts must be respected).

General principles of law should be distinguished from the basic (generally recognized) principles of modern public international law. General principles of law in public international law are one of its main sources, a form of existence of legal norms.

The system of basic principles of modern international law is one of its branches. The sources of certain basic principles of international law (for example, the principle of conscientious fulfillment of international obligations) are the general principles of the law of civilized peoples (the principle of conscientious fulfillment of treaties).

The basic principles of international law are its cogent, super-imperative norms. In accordance with Art. 15 of the Constitution of the Russian Federation, the generally recognized principles and norms of international law are part of the legal system of the Russian Federation. Based on this legal position, it can be argued that the basic principles of international law are one of the sources of Russian PIL.

Special principles of private international law:

The autonomy of the will of the participants in the legal relationship is the main special principle of PIL (as well as any other branch of national private law). The autonomy of the will underlies all private law as a whole (the principle of freedom of contract; the freedom to have subjective rights or to refuse them; the freedom to apply to government bodies for their protection or tolerate violations of their rights).

The principle of granting certain regimes: national, special (preferential or negative) most favored nation treatment. National and special regimes are mainly granted to foreign individuals; most favored nation treatment - to foreign legal entities (although this provision is not mandatory, and legal entities can enjoy the national treatment, and individuals - the most favored nation treatment). Preferential (especially preferential treatment) is provided to both individuals (residents of the border areas) and legal entities (the largest foreign investors).

The principle of reciprocity. In private international law, there are two types of reciprocity - material and conflict. Problems of conflict reciprocity (or reciprocity in the broad sense of the word) are related to conflict law and will be discussed below. Material reciprocity, in turn, is divided into material reciprocity itself (granting foreign persons the same amount of specific rights and powers that national persons enjoy in the corresponding foreign state) and formal (foreign persons are granted all rights and powers arising from local legislation).

By general rule it is formal reciprocity that is granted, but in certain areas - copyright and invention right, avoidance of double taxation - it is customary to provide material reciprocity.

The principle of non-discrimination. Discrimination is a violation or restriction of the legitimate rights and interests of foreign persons in the territory of a state. The universally recognized norm of private international law of all states is the absolute inadmissibility of discrimination in private law relations. Each state has the right to demand from another state the creation for its national persons of the same conditions enjoyed by the persons of other states, i.e. conditions that are common and the same for all.

The right to retort. Retortions are lawful retaliatory measures (restrictions) of one state against another, if the legitimate rights and interests of individuals and legal entities of the first state are violated on its territory. The goal of retortions is to achieve the abolition of discriminatory policies.

At present, which is often called the era of globalization of international economic relations, private international law is becoming increasingly important. The opinions of various experts in the field under study differ in determining whether or not private international law (PIL) is an independent branch of law. Some authors attribute it to independent branches Russian law, others consider it a complex legal system, others generally believe that this is not a law, but purely technical rules on the choice of legislation. Analyzing various statements, one can come to the conclusion that all the same, private international law refers rather to a complex legal system, which includes conflict of laws and substantive rules of several branches of private law (civil, family, labor and civil procedure).

International private law (MCHP) - it is a complex legal system that combines the norms of national (domestic) legislation, international treaties and customs that regulate property and personal non-property relations complicated by a foreign element (that is, relations of an international character), using conflict of law and substantive law methods.

International private law:

regulates private law relations (relations of a civil law nature in the broad sense of the word) arising in the conditions of international life (complicated by a foreign element);

has its own subject and its own method of regulation;

is a complex legal system, consisting of conflict and substantive rules of several branches of law;

unites institutions that are a kind of continuation of the institutions of private (civil, family, labor) law, to a certain extent derived from the latter, they do not merge with them and do not dissolve in them;

closely related to, but not part of, international public law.

Subject international private law is the regulation of civil law relations complicated by a foreign element.

An essential feature of private international law are the methods by which regulation takes place. Under method legal regulation refers to the totality of means and methods by which the law affects social relations, regulating them. In private international law, the unique conflict method is combined with the substantive law.

International private law owes its origin and further development to the conflict method. In legal relations with a foreign element, the so-called conflict question always arises: it is necessary to decide which of the two colliding laws is to be applied - the one in force in the territory where the court considering the case is located, or the foreign law, that is, the law of the country to which the foreign element belongs in case under consideration.

"Collision" is a Latin word meaning "collision". Implies inconsistency of the norms of laws various countries and the need to choose between them when considering a disputed legal relationship with a foreign element. In other branches of law, issues of conflict of laws are of secondary importance. In international law, the solution of the conflict problem is one of the main goals.

A conflict can be resolved by using conflict rules that indicate which law is applicable in a particular case. Consequently, the conflict rule itself is of a referential nature to material norms; it does not essentially resolve the issue.

With the help of the substantive-legal method, the directly disputed material legal relationship is settled. With the substantive method, special regulation is always applied, and with the conflict method, general regulation.

The unification of conflict and substantive rules as part of international private law is based on the need to regulate relations that are homogeneous in nature by two different methods.

In addition to the substantive law of international agreements, international private law includes the substantive law of domestic law, specifically designed to regulate civil relations with a foreign element. These standards include:

Norms regulating foreign economic activity;

Rules defining the legal status of various enterprises with foreign investments established on the territory of Russia;

Rules concerning the regime, investments, investment activities of Russian organizations;

Norms defining the status of Russian citizens abroad;

Norms defining the rights and obligations of foreign citizens and organizations in Russia in the field of civil, family, labor and procedural law.

If an international treaty of the Russian Federation contains substantive legal norms to be applied to the relevant relation, the determination on the basis of conflict of laws rules of the law applicable to issues fully regulated by such substantive legal norms is excluded (part 3).

Forms of implementation of private international law methods:

National legal - through the adoption by the state of conflict of laws;

National legal - through the adoption by the state of the substantive norms of private law;

International legal - through unified conflict of laws rules adopted by international treaties;

International legal - by creating the same content of civil law norms, that is, unified (uniform) substantive norms.

The main trends in the development of private international law:

Striving for the unification of legal norms through the adoption of international treaties and model laws;

The emergence of a conflict between the norms of international treaties in the field of PIL;

Improvement and codification of PIL norms at the national level;

The growing role of the principle of autonomy of the will of the parties, the transition to more flexible rules of conflict of laws;

Expansion of the scope of international private law (space activities, nuclear energy, transport, communications, etc.).

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1. The place of private international law in the system of legal disciplines

As an independent legal science, private international law (PIL) has emerged relatively recently. The founder of PIL is considered to be Joseph Storey, who in 1884 published a book entitled “Commentary on the Conflict of Laws”, applied a complex analysis to the situations prevailing in international law and for the first time used the term “private international law” itself (private international Law).

PIL arose and developed due to the presence in the world of about two hundred legal systems of domestic legislation regulating the same social relations. If, in addition to national subjects of law (individuals and legal entities of a particular state), a “foreign element” is involved in the legal relationship, additional legal regulation is required, the creation of a system of special rules that take into account the international nature of legal relations. This system is an independent branch of law - private international law.

PIL involves knowledge of civil law, civil process, family, constitutional and other branches of law.

PIL interacts with international law and the legal systems of its state, civil and commercial law, includes property law, law of obligations, tort obligations, copyright and patent law, family, inheritance, labor law, regulation of international transportation, settlements, international civil process, commercial arbitration etc.

The starting principles of international private and international public law are the same. The legal connection between them is manifested in the duality of the unified norms of international treaties intended to regulate property relations with a foreign element, and in the fact that private international law uses the general principles of public international law (principles of state sovereignty, non-interference in internal affairs, the principle of non-discrimination). According to PIL, states must comply with both their treaty obligations and the norms and principles of international law.

2. The subject of private international law

International private law is a set of legal norms of the national legal system and international norms governing civil, family, labor and other personal non-property and property relations between citizens, legal entities, states and international organizations. The subject of PIL are relations that are of a private law nature, but at the same time go beyond the boundaries of the competence of an individual state.

The subjects of these relations are citizens of different states, stateless persons, legal entities. PIL considers civil law relations that arise in international life. Since the subject of regulation in PIL is civil law relations, structurally PIL refers to the internal legal system of each state. But as a branch of jurisprudence, PIL is complex: the development of issues of private international law cannot exist without connection with the study of problems of general international law.

PIL does not exist in isolation, it is closely related to international law and other legal disciplines. The development of international private law is influenced by the main factors of modern reality: the internationalization of economic life, increased migration of the population, scientific and technological progress.

The main trends in the development of private international law:

1. Striving for the unification of legal norms through the adoption of international treaties and model laws.

2. Expansion of the sphere of regulation of PIL (space activities, communications, etc.).

3. Emergence of conflicts between the norms of international treaties in the field of PIL.

4. Improvement and codification of PIL norms at the national level.

5. Scientific and technical development.

6. Increasing role of the principle of autonomy of the will of the parties, the transition to more flexible rules of conflict of laws.

In a number of cases, both private international law and public international law regulate the general complex of the same relations, but using their own specific methods for each of these systems.

3. Public relations in private international law

International relations can be conditionally divided into two main groups: interstate relations and non-interstate relations.

Interstate relations governed by public international law. Non-interstate subject to private international law.

If, in addition to national subjects of law, a “foreign element” is involved in the legal relationship, additional legal regulation is required. The subjects of relations in PIL are: 1) individuals; 2) legal entities; 3) the states themselves (in some cases).

The public relations considered by PIL have the following characteristics: 1) are of a private nature; 2) at the same time, they are given international significance. These are relations that arise between citizens of one state and the authorities of another, relations between citizens of different states, relations between legal entities and individuals or legal entities of different countries. These relationships do not have an authoritative nature, are not committed on state level, that is, they are private relations.

The specificity of PIL lies in the fact that, despite the differences in the legal systems of states, it is PIL that, with the help of conflict rules, reveals the law of which state is to be applied in appropriate cases.

A feature of regulated relations is the presence in them of the so-called foreign element. The "foreign element" in PIL are: 1) an entity that has foreign affiliation (citizenship, place of residence - in relation to individuals; "nationality" - in relation to legal entities); 2) an object located on the territory of a foreign state; 3) a legal fact that has taken place or is taking place abroad.

PIL applies to issues of civil law, commercial law, copyright, labor law, family law. PIL determines the right and legal capacity of foreign individuals and legal entities, issues of immunity; relations under foreign trade agreements; the rights of authors to works published abroad; labor and social status persons located on the territory of a foreign state, etc.

4. International law and international private law

Both international law and international private law in a broad sense govern international relations. We can say that PIL is a special case of international law. PIL can be considered as a set of rules governing civil law relations (between individuals and legal entities of different states, at the level of international non-governmental organizations) that are international in nature, while the regulation of PIL does not contradict the principles of public international law (IPL).

WFP and PIL are distinguished on the basis of:

1) on the subject (for example, when private legal relations are the subject of regulation, the states themselves can act as subjects of these legal relations, and only public interstate relations are the subject of MPP);

2) by subjects (the subjects of the LPP are states, international organizations; the subjects of the PIL are citizens and organizations);

3) by sources (the main source of MPP are international treaties, the main sources of PIL, in addition to international treaties, are national legislation).

The most significant difference between PIL and WFP is that the WFP serves to regulate the relations between states, the WFP determines their mutual obligations, ways of interaction, etc., creating special international organizations to achieve these goals within the framework of international law.

The subjects of relations in WFP are the states themselves, international organizations of which these states are members, and PIL is aimed at regulating social relations that are civil in nature, that is, related to different branches of domestic law: both civil (family, labor, trade, land, economic) and related to the field of international business.

The subjects of relations in PIL are natural and legal persons, in some cases - states. The specific difference between the relations under consideration is the presence in them of a “foreign element”, that is, an individual or legal entity belonging to another state, an object located on the territory of a foreign state; a legal fact that took place abroad.

5. Content of private international law

PIL norms regulate civil, family and labor relations with a foreign or international element, while the regulation of civil law relations between persons of two states is connected with the general state of foreign policy relations between these states.

Three groups of property relations fall under the scope of PIL:

1) those whose subject is a party that is foreign in nature (citizens, organizations, sometimes states);

2) those whose participants belong to the same state, but the object (for example, hereditary property), in connection with which the relevant relations arise, is located abroad;

3) such, the occurrence, change or termination of which is associated with a legal fact that takes place abroad (infliction of harm, conclusion of a contract, death, etc.).

The peculiarity of the regulation of civil legal relations with a “foreign element” is that the PIL norms sometimes do not contain a direct prescription for resolving a particular issue. The rules only indicate which legislation is required to be applied (conflict rules). PIL includes all the norms regulating civil law relations with a “foreign element”, but the very nature of the relationship, the subject of regulation, and not the method of regulation, is of decisive importance.

PIL norms are aimed at the unification of private law in the field of international trade (the main scope of application), in the fields of scientific, technical and cultural cooperation, maritime, rail and air transportation. PIL includes both conflict of laws and substantive rules governing civil law relations arising in the fields of international economic, scientific, technical and cultural cooperation, as well as rules defining civil, family, labor and procedural rights of foreigners.

6. The nature of the rules of private international law

In general, the nature of PIL norms is connected with the international nature of the social relations considered by PIL. International public law establishes legal relations between states (inter nations, inter gentes), and in this sense is international. International private law establishes legal relations between persons belonging to different states that go beyond the framework of a separate legal system, that is, requiring clarification of which law applies to them, and this is its international character.

PIL norms are part of international law, but belong to domestic law, since PIL regulates a special group of social relations that have a dual nature and do not have a “own” system of law. These legal relations, although they are civil, combine civil law and international law principles, acting jointly and inseparably.

As a result of transformation, the norms of international treaties become the norms of internal law and pass into the category of PIL norms. Transformation is carried out by the adoption of a domestic law or other normative act, often an international treaty. After the transformation, the norms retain an autonomous position in the internal legal system of each state that has signed an international treaty.

Nowadays, despite the trend of increasing the role of an international treaty in the issue of legal regulation, domestic legislation continues to be one of the most significant sources of legal regulation. For this reason, each state (with the exception of cases of using unified norms of international treaties and general principles of international law) applies in the field of regulation of civil law relations with a “foreign element” not the same norms of private international law common to all states, but different norms based on the law adopted in the country. But with the closer interaction of states among themselves, there is a constant unification of the norms of PIL.

7. Russian doctrine of private international law

In Russia, the purpose of the PIL norms is the legal support of international economic, scientific, technical and cultural relations, the establishment of the legal status of foreigners in the Russian Federation, corresponding to human rights, defined by international pacts. Russia relies on the provisions of the Final Act and other documents of the Conference on Security and Cooperation in Europe, which are aimed at ensuring by each state within its territory human rights and fundamental freedoms to persons subject to its jurisdiction, at providing effective legal assistance to citizens of other participating States, temporarily located on their territory, as well as to ensure the possibility of marriage between citizens of different states.

The actions of the Russian state in PIL are determined by the principles enshrined in the Constitution of the Russian Federation:

1) observance, recognition and respect for the sovereignty and sovereign equality of all countries;

2) refusal to use force or threat of force;

3) inviolability of borders, territorial integrity of states;

4) peaceful settlement of disputes;

5) non-interference in internal affairs;

6) respect for human rights and freedoms, including the rights of national minorities;

7) conscientious fulfillment of obligations and other generally recognized principles and norms of international law.

The norms of domestic legislation relating to PIL, including conflict of laws rules, are of a general nature, without making distinctions in relation to different foreign legal systems.

On the present stage The MCHP is faced with the following tasks:

1) improving the legal support of integration processes for the unification and convergence of the legal norms of different countries;

2) promoting the use of deeper forms of cooperation;

3) protection of the rights and interests of foreign investors in the Russian Federation and investment activities of the Russian Federation abroad;

4) expansion of guarantees of the rights of foreigners in the Russian Federation in various areas (labor, family law, judicial protection);

5) ensuring the protection of property rights and legitimate interests of citizens, organizations and firms of the Russian Federation abroad.

Question 1. The concept of private international law.

IN the scope of PIL includes private law relations complicated by a foreign element. The term "private law relations" means relations that within each state are regulated by the norms of various branches of private law:

1) civil law relations that are regulated by the norms of the Civil Code (i.e. property and personal non-property relations);

2) family and marriage;

3) labor relations, which are also property and related personal non-property relations.

Foreign e-you are divided into three main groups depending:

1) from the subject, i.e. when the participants in legal relations are individuals. and legal persons of different states (intergovernmental, international organizations, states can act);

2) an object, that is, legal relations arise in connection with property located abroad;

3) legal the fact, as a result of which private law relations arise, change or terminate in the event that the jur. the fact takes place abroad.

In a particular legal relationship, a foreign element can be present in any combination, i.e. they can be in one group, or in two or even three.

For example, section 6 of the Civil Code of the Russian Federation proceeds from the following understanding of the subject of PIL: for example, in accordance with Art. 1186 of the Civil Code of the Russian Federation, which names two groups of foreign elements - the subject and the object, other foreign elements originally include legal facts. In Art. 1209 of the Civil Code of the Russian Federation refers to the form of transactions made abroad, which is an example of legal. fact. Considered legal relationship:

1) are private law;

2) complicated by a foreign element. The factor of the presence of a foreign element connects private law relations not only with different states, but also with the law of different states, and only the simultaneous presence of these two signs will make it possible to single out from the whole range of social relations the circle of relations that constitute the subject of PIL regulation.

Thus, the subject of PIL is private law relations complicated by a foreign element.



PIL- an independent branch of Russian law, which is a system of conflict (internal and contractual) and unified substantive private law rules that regulate private law relations by overcoming the conflict of law of various states.

Question 2. The composition of the norms of private international law.

The composition of the PIL rules includes, first of all, conflict rules that determine the law to be applied. PIL deals with collisions of a special kind:

Intertemporal collisions - their content is the result of the action of laws in time.

Interpersonal collisions - based on the belonging of a physical. persons to a certain nationality, religion, etc.

Spatial legal conflicts are subdivided (from the position of MCHP) into conflicts of laws of different states(“international”, “international”) and conflicts of laws of intrastate formations(members of the federation) the same state(“internal”, “interregional”). The study of the question of whether the solution of spatial legal conflicts - "international" and "internal" - is subject to the same general principles or each type of conflicts corresponds to special rules for their regulation, allows us to conclude that the states' approaches to this problem do not coincide.

In the domestic doctrine, PIL is often studied as an area of ​​law, covering not only conflict of laws, but also substantive legal prescriptions. The latter, unlike conflict rules, determine the behavior of the parties, the content of their rights and obligations. The rules of this kind included in the PIL include the unified substantive norms of international treaties of the Russian Federation implemented in the sphere of private law relations complicated by a foreign element, as well as the norms of domestic legislation on the legal status in this area of ​​subjects of foreign law and customs recognized in RF.

An increase in the volume of unified conflict and substantive rules expands the scope of uniform PIL rules.

Two types of legal norms correspond to two ways of legal regulation. Collision method involves first solving the conflict problem, determining the applicable law, and only then, on its basis, regulating the behavior of the parties. Substantive the method allows you to regulate the behavior of the parties by directly establishing the rights and obligations of the participants in the relationship.

Question 3. Place of private international law in the system of law.

In the question of the place of PIL in the legal system, one can single out three main approaches:

1. PIL refers to the system of international law - international legal concept.

2. PIL is included in the system of internal law of the state - civil concept.

3. PIL is an intersystem complex that partly relates to international public law, and partly to domestic law, such a concept is called systemic.

Conclusions:

1. PIL is closely connected with both public international law and the national law of the state, primarily with branches of private law.

2. Despite the close connection with international public law, PIL is included in the system of internal national law of the state. This conclusion is rigidly predetermined by the subject of legal regulation, namely private law relations complicated by a foreign element. PIL regulates relations between such entities (individuals and legal entities) that are under the jurisdiction of the state and, therefore, under the influence of its internal law. However, the mechanism of international legal regulation is not adapted to regulate relations between physical. and legal persons.

3. In the system of domestic law, PIL is not part of the civil, family, labor and other branches of law, it occupies an independent place, is an independent branch of law with its own specific subject and method of regulation, since civil, labor and other private law relations constitute a single subject MChP.

4. Contrary to the name, PIL has a national nature, in contrast to international public law, which is the same for all states, PIL exists within the framework of the national law of an individual state.

1.1. The concept and subject of private international law

International communication, international turnover - ϶ᴛᴏ the totality of interstate relations and relations between individuals and legal entities of different states. Legal issues of interstate communication fall within the scope of the MPP. Legal issues of relations between individuals and legal entities fall within the scope of international private law. The specificity of the development of modern CPOs is characterized by their large-scale internationalization and globalization - the establishment of transparency of borders, visa-free entry into the territory of a foreign state, the international division of labor, constant migration of the population and labor force, an increase in the number of "mixed" marriages, foreign adoption, etc. Let us note the fact - what in modern world there is a separate set of relations called "international civil relations". The process of internationalization of NPOs leads to the need for their comprehensive legal regulation, taking into account the peculiarities of the legal systems of different states. Private international law is the only branch of law intended for the legal regulation of civil (in the broad sense of the word, i.e. civil, private law) relations arising in the field of international communication.

International private law is an independent, complex branch of law that combines the norms of international and national law and regulates international civil relations. The subject of PIL regulation is ϶ᴛᴏ NPO, burdened with a foreign element. The foreign element can manifest itself in three ways:

  1. subject of legal relationship - a foreign person, a foreigner (foreign citizen, stateless person, bipatride, refugee; foreign legal entity, enterprise with foreign investments, international legal entity, TNC; international intergovernmental and non-governmental organizations; foreign state);
  2. the object of the legal relationship is located abroad;
  3. the legal fact, with which the legal relationship is connected, takes place abroad.

In Russian legislation, the foreign element in civil relations is determined by paragraph 1 of Art. 1186 of the Civil Code. Unfortunately, there are quite a few gaps in the ϶ᴛᴏ definition: a foreign state and international organization; a legal fact that took place abroad is not singled out as one of the options for a foreign element.

True, in Art. 1186 of the Civil Code refers to civil law relations complicated by "another foreign element". By the way, this phrase fills in the noted gaps, but due to its indefinite nature, it can lead to a broad interpretation of the legal norm.

International private law is a complex branch of law and jurisprudence. International private law is most closely related to national private (civil, commercial, family and labor) law. With ϶ᴛᴏm, its norms are ambiguous and paradoxical, since private international law is very closely related to the MPP. Private international law will not be a branch of MPP, but their distinction is not absolute. This is due, first of all, to the fact that international private law regulates relations arising precisely from international communication.
It is worth noting that the main principles of international law (mainly its generally recognized principles and norms) have direct effect in private international law as well.

1.2. The place of private international law in the system of law

In the global legal system, private international law occupies a special place. Its main specificity is, in fact, that private international law is a branch of national law, one of the private law branches of the law of any state (Russian private international law, French private international law, etc.). It is worth noting that it is included in system of national private law along with civil, commercial, commercial, family and labor. The concept of “international” here has a completely different character than in the MPP, it means only one thing: there is a foreign element in the civil legal relationship (with ϶ᴛᴏm it does not matter, one or more and which version of the foreign element) At the same time, private international law represents a very specific subsystem of the national law of individual states.

The special nature and paradoxical nature of its norms are expressed in the very term "domestic international private law". At first glance, this terminology seems absurd. There cannot be a branch of law that is both domestic (national) and international at the same time. In fact, there is nothing absurd here. It’s just that we are talking about a legal system designed to directly regulate international relations of a non-state nature (arising in private life). private law. It is customary to talk about the dual nature of the norms and sources of private international law. Indeed, ϶ᴛᴏ is perhaps the only branch of national law in which the MPP acts as a direct source and has direct effect. That is why the definition of “hybrid in jurisprudence” is quite applicable to PIL.

The main (general) principles of private international law can be considered as those indicated in paragraph "c" of Art. 38 of the Statute of the International Court of Justice "the general principles of law common to civilized nations." General principles of law - ϶ᴛᴏ generally recognized legal postulates, methods of legal technique, "legal maxims" developed by the lawyers of Ancient Rome. Let us list the general principles of law that are directly applied in private international law: you cannot transfer more rights to another than you yourself have; principles of justice and good conscience; principles of non-abuse of rights and protection of acquired rights, etc. By "civilized nations" are meant those states whose legal systems are based on the received Roman law. The main general principle of private international law (as well as national civil and international public law) will be the principle of "pacta sunt servanda" (contracts must be respected) Special principles of private international law:

  1. autonomy of the will of the participants in the legal relationship - ϶ᴛᴏ the main special principle of private international law (as well as any other branch of national private law) public authorities for their protection or tolerate violations of their rights);
  2. the principle of granting certain regimes: national, special (preferential or negative), most favored nation treatment. National and special regimes are mainly granted to foreign individuals; most favored nation treatment - to foreign legal entities (although this provision will not be mandatory and legal entities can enjoy the national treatment, and individuals - the most favored nation treatment);
  3. the principle of reciprocity. In private international law, there are two types of reciprocity - material and conflict. Problems of conflict reciprocity (or reciprocity in the broad sense of the word) ᴏᴛʜᴏϲᴙ are related to conflict law and will be discussed below. Material reciprocity in turn is divided into actually material (granting foreign persons the same amount of specific rights and powers that national persons enjoy in ϲᴏᴏᴛʙᴇᴛϲᴛʙin a foreign state) and formal (granting foreign persons all the rights and powers arising from local legislation) it is formal reciprocity, but in certain areas - copyright and invention right, avoidance of double taxation - it is customary to provide material reciprocity;
  4. the principle of non-discrimination. Discrimination is a violation or restriction of the legal rights and interests of foreign persons in the territory of a state. The universally recognized norm of PIL of all states is the absolute inadmissibility of discrimination in PPO;
  5. the right to retort. Retortions are lawful retaliatory measures (restrictions) of one state against another, if the legitimate rights and interests of individuals and legal entities of the first state are violated on the territory of the latter. The purpose of retortions is to achieve the abolition of discriminatory policies - Art. 1194 of the Civil Code.

1.3. Normative structure of private international law

The normative structure of private international law is highly complex. This branch of law consists of norms that are different in their nature, nature and structure. They can be classified as follows: conflict (from Latin collision - collision, conflict) and substantive law. Conflict (reference) rules are unique in their nature and are found only in private international law. In no other branch of law is there even an analogue of such norms. Their sources are national legislation (internal conflict of laws rules) and international treaties (unified or contractual conflict of laws rules). Uniform conflict rules are exclusively of contractual origin (there are no ordinary international conflict rules)

In the normative structure of private international law, conflict rules play a fundamental role. By the way, this branch of law arose and developed precisely as conflict of laws. For a long time (practically until the middle of the 20th century), private international law was defined exclusively as a set of conflict rules. The understanding of international private law exclusively as a conflict of laws has been preserved in the modern world - the American doctrine of "conflict" law, the legislation of a number of European states (for example, Switzerland and Austria), the resolutions of the Institute of International Law.

Today, it is practically generally accepted that the normative structure of private international law is not limited to conflict of laws rules. The composition of private international law also includes substantive legal norms - international (unified) and national. Uniform substantive legal norms occupy a very important place in the normative structure of private international law. Their sources are international treaties and customs, the ITUC. Unified substantive legal norms are of a public law nature (they are created by states - powerful subjects) and represent the final result of the process of coordinating the will of two or more states.

It must be remembered that such norms are called conciliatory, coordinating. The unified substantive legal norms can be directly applied to regulate PPOs with a foreign element (Article 7 of the Civil Code). The implementation of the norms of the majority of international treaties regulating PVE into national law is carried out through the ratification of a ϲᴏᴏᴛʙᴇᴛϲᴛʙan international agreement (if it needs ratification) or through its signing (and the subsequent issuance of certain domestic legal acts that introduce the norms of the treaty into the national legal system)

At the same time, even after the norms of international law become part of the national legal system, they retain an autonomous, independent character and differ from other norms of domestic law. The autonomy and independence of the implemented international norms in the national legal system is explained by the fact that they will not be the creation of one legislator, but created in the process of international rule-making and embody the coordinated will of two or more states. It must be remembered that the state does not have the right to cancel or change such norms unilaterally (for ϶ᴛᴏgo, it must first stop ϲʙᴏe participation in the ϲᴏᴏᴛʙᴇᴛϲᴛʙ developing international agreement)

The interpretation of the unified norms should be carried out not according to the rules of interpretation of the norms of national law, but in accordance with the provisions of international law enshrined in the Vienna Convention on the Law of Treaties of 1969. The legislation of most states establishes the principle of preferential application of international law in cases of its conflict with the norms of national laws (Art. 15 of the Constitution) International law has primacy (supremacy) in the regulation of PPOs with a foreign element (Art. 7 of the Civil Code, Art. 10 of the Labor Code, Art. 6 of the UK, Art. 11 of the Code of Civil Procedure, Art. 13 of the APC)

In addition to the unified substantive legal norms, the substantive legal norms of national law in private international law will also be part of the normative structure of private international law. True, this position in the doctrine of law will not be universally recognized. Many scholars believe that national substantive legal norms cannot be included in the structure of private international law. At the same time, most authors (including Russian ones) express the opposite point of view - the substantive norms of national law are included in the normative structure of private international law. By the way, this concept seems to be the most correct and in line with modern trends in the development of regulation of international civil relations.

The substantive legal norms of national law from the standpoint of private international law can be divided into three groups: general rules governing any legal relationship - both having a foreign element in its composition and not having such an element (Article 11 of the Labor Code); “specially national” norms regulating relations only between citizens of a given state on its territory, that is, relations not burdened with a foreign element (Article 33 of the Constitution); “specially foreign” norms regulating only certain relations, without fail burdened with a foreign element (Federal Law of July 9, 1999 No. 160-FZ “On Foreign Investments in the Russian Federation” (as amended on December 8, 2003); clause 4 of Art. 124 SC) Of all domestic substantive legal norms, it is specifically foreign norms that are included in the structure of private international law.

It must be remembered that such norms do not regulate the entire spectrum of civil law relations, but some part of them, some specific range of issues. The source of specially foreign norms is national law, that is, the creation of one powerful legislator. At the same time, these norms are specifically designed to regulate relations arising in the international sphere. In domestic law, specially foreign norms, as well as implemented international norms, form a separate, independent normative group.
It is worth noting that the peculiarity of the norms under consideration is a special subject of regulation (only relations aggravated by a foreign element) and a special special subject (foreign persons or persons of local law entering into relations that have a foreign element in their composition)

A fairly wide range of relations in the field of private international law is regulated precisely with the help of substantive norms of national law. Very often, PGOs with a foreign element do not give rise to a conflict issue and a choice of law problem. It is this situation that traditionally develops in cases where the national legislation contains detailed substantive legal regulation of a large-scale range of relations related to international communication.

1.4. Methods of regulation in private international law

The general method of regulating relations in the field of private international law is the ϶ᴛᴏ method of decentralization and autonomy of the will of the parties (as in any other branch of national private law). Directly in private international law, there are also special methods of legal regulation - conflict of laws and substantive law. Special methods of private international law do not oppose each other, but interact and combine with each other. The very name of these methods shows their direct connection with the normative structure of private international law. The conflict method is associated with overcoming conflicts in the legislation of various states and involves the application of conflict rules (both internal and unified) international)

Collision method - ϶ᴛᴏ method of resolving conflicts of laws of different states. In private international law, there is the concept of "colloding" (colliding) laws. The legal systems of different states regulate the same problems of private law in different ways (the concept of legal personality of individuals and legal entities, types of legal entities and the procedure for their formation, form of transaction, limitation periods, etc.) It is worth saying that for the correct resolution of civil law in a dispute aggravated by a foreign element, the choice of law is of great importance. A legally justified solution to the question of which state's law should govern a given international civil legal relationship contributes to the elimination of conflicts of legal systems and facilitates the process of recognition and enforcement of foreign judgments.

Conflict method - ϶ᴛᴏ referential, indirect, indirect method based on the application of conflict rules. The court first of all makes a choice of the applicable law (resolves the conflict issue) and only after that it applies the substantive legal norms of the chosen legal system. When applying the conflict method, the rule of conduct and the dispute resolution model are determined by the sum of two norms - conflict and substantive law, to which the conflict refers. Ways of the conflict method - internal (with the help of the norms of national conflict of laws) and unified (through the application of the norms of international treaties "on applicable law" and the conflict of laws rules of complex international agreements) The conflict method is considered primary and fundamental in private international law, since the basis of international private law itself is precisely the conflict of laws rules.

The use of the internal conflict method is associated with significant difficulties of a legal and technical nature due to the fact that the conflict rules of different states resolve the same issues in different ways (definition of personal law, the concept of the right of substance of a relationship, etc.) Solution of the same issue may be fundamentally different depending on the conflict law of which state is applied in the consideration of the case.

We note the fact that in modern international communication the importance of unified substantive legal norms is increasing and, ϲᴏᴏᴛʙᴇᴛϲᴛʙenno, the role of the substantive method of regulation (϶ᴛᴏt method is also called the method of direct prescriptions) The substantive legal method is based on the application of substantive rules that directly regulate rights and responsibilities of the parties formulating the model of behavior. This method will be direct (immediate) - the rule of conduct is specifically formulated in the substantive legal norm. The sources of the substantive method are international law and national laws specifically dedicated to the regulation of PHE with a foreign element.

The Russian legislation establishes the primacy of the unified substantive method over the conflict method (clause 3 of article 1186 and clause 6 of article 1211 of the Civil Code). The conflict method plays a subsidiary role, it is applied in the absence of direct substantive legal prescriptions.

At the same time, when resolving private law disputes with a foreign element, the conflict method of regulation continues to dominate in the practice of courts and arbitrations. This is primarily due to the fact that the majority of states basically recognize and enforce on their territory the decisions of foreign courts, if such decisions are based on the national law of this state, i.e., when deciding on the applicable law, the foreign court chose the law of that particular state, on whose territory the judgment is to be recognized and enforced. The conflict method continues to play a major role in private international law.



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