Evasion of Law in Private International Law

2016 ◽  
Vol 4 (8) ◽  
pp. 0-0
Author(s):  
Тихон Подшивалов ◽  
Tikhon Podshivalov
Keyword(s):  
Public Policy ◽  
International Law ◽  
Effective Means ◽  
Private International Law ◽  
Legal Systems ◽  
Indefinite Number ◽  
Characteristic Features ◽  
Definition Of ◽  
Evasion Of Law ◽  
Legal Consequences

The article is devoted to the definition of the conditions under which it is possible to apply the rules on evasion of law in civil relations complicated by a foreign element. It is possible to recognize evasion of law only by identification of characteristic features of this legal phenomenon in private international law. The author substantiates the idea that the dispute about the validity of imposing a ban on evasion of law in private international law doesn’t have political and legal importance: should not deny the theory of evasion of law, but to define the conditions under which it is possible to apply the norms of evasion of law. The problem is how to make the norms of evasion of law an effective means of suppression to disservice of an indefinite number of people, the protection of public policy. When imposing a ban on the evasion of law the most important is the question of the pending consequences when and where the acts of evasion of law will be revealed. The article deals with the question of identification the legal consequences of qualification of actions as done through evasion of law. Besides, the article attends to the response to “evasion of law” in the national legal systems.

scholarly journals OVERRIDING MANDATORY PROVISIONS IN CROATIAN PRIVATE INTERNATIONAL LAW

2021 ◽  
Vol 37 (3-4) ◽  
pp. 81-100
Author(s):  
Dora Zgrabljić Rotar
Keyword(s):  
Public Policy ◽  
International Law ◽  
Complex Task ◽  
Private International Law ◽  
Law System ◽  
The Public ◽  
Contractual Obligations ◽  
Definition Of ◽  
Rome I ◽  
Mandatory Provision

Overriding mandatory provisions are mandatory provisions that are applicable in situations with an international element. The author analyses overriding mandatory norms in the European private international law and in the Croatian national private international law. The definition of such norms provided in the 2017 Croatian Private International Law Act is almost a verbatim copy of the definition provided in the Rome I Regulation on the law applicable to contractual obligations. The 1982 Croatian Private International Law Act did not provide for a definition of overriding mandatory norms but it was uniformly accepted in the scholarly interpretations that those types of mandatory norms were accepted by the Croatian private international law system. Moreover, the 1982 PIL Act included a substantive family law provision, which was, in essence, an overriding mandatory provision. However, Croatian courts and practitioners have been reluctant to refer explicitly to an applied norm as an overriding mandatory one. The reasons behind that might be that that the courts were better acquainted with the public policy exception, since public policy was explicitly mentioned in the 1982 PIL Act, as well as in some other legal acts. In addition, the legislator does not explicitly note that a provision is an overriding mandatory one in the provision itself, which leads to the outcome that the courts and other practitioners are burdened with a complex task of interpretation of a provision they think might be an overriding mandatory one. The author aims at providing guidelines to facilitate that task.

Part VI The Law of Property, 38 Trusts

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
Public Policy ◽  
International Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Mandatory Rules ◽  
The Hague ◽  
The Law ◽  
Definition Of ◽  
The Uk

This chapter examines the private international law rules governing trusts which are laid down in the Recognition of Trusts Act 1987 and its scheduled Convention. The Recognition of Trusts Act was passed in 1987 to enable the UK to give effect to the Convention, formally concluded in 1985 by the Hague Conference on Private International Law, on the Law Applicable to Trusts and on their Recognition. The chapter begins with a discussion of some preliminary issues, such as the definition of a trust, types of trust that fall within the 1987 Act, validity of the instrument of creation of the trust, and transfer of trust assets. It then considers the specific rules governing choice of law and the recognition of trusts, along with mandatory rules and public policy. It also looks at the variation of trusts and marriage settlements, citing the relevant provisions of the Variation of Trusts Act 1958.

scholarly journals THE EVASION OF LAW INSTITUTE IN PRIVATE INTERNATIONAL LAW: OVERVIEW OF THE PERSPECTIVE

2017 ◽  
Author(s):  
Oksana Vartovnik ◽  
Keyword(s):  
International Law ◽  
Scientific Work ◽  
Private International Law ◽  
Traditional Concept ◽  
Private Interests ◽  
The Stability ◽  
Definition Of ◽  
The Individual ◽  
Evasion Of Law ◽  
Autonomy Of Will

The article analyzes some theoretical and practical problems of the place of the institution of law evasion in private international law. Particular attention is paid to the analysis of evasion of law institute from the standpoint of its relation with the requirements for committing transaction, grounds and consequences of transaction invalidity. Various approaches to definition of the concept of evasion of law, its features and the role it plays in the mechanism of regulation of private legal relations complicated by a foreign element are considered. Despite sufficient scientific work on the study of law evasion, in particular as a type of abuse of law, in private international law, science, unfortunately, has not developed general approaches to the place and importance of law evasion in the system of grounds for non-application of foreign law. In the context of active development and dissemination of private law relations, which are the subject of private international law, it is important to analyze the legal institution of law evasion in relation to the categories of “autonomy of will” and “choice of law”. The relevance of the study, which was revealed in the article, due to the fact that in combination with freedom of movement, freedom of reason, contractual freedom and autonomy of will inherent in civil relations in general and regulated by private international law in particular, the requirement of mandatory and strict subordination of such relations uniform law (for example, citizenship or place of residence) looks like an anachronism nowadays. Thus, it is emphasized that the task of law evasion is to ensure the stability of private international law in the interaction of national legal systems, eliminating “disturbing” influences on the subsystem through agreements and other actions that reflect private interests to the detriment of the individual, society and state. The article provides for criticism of current definition of evasion of law, embodied in the Law of Ukraine «On Private International Law», from the standpoint of traditional concept of evasion of law and outlines suggestions for its improvement.

Understanding the Functions of Jurisdictional Law

2017 ◽  
Author(s):  
Dan Jerker B. Svantesson
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Legal Philosophy ◽  
Law Reform ◽  
The Internet ◽  
Private International Law ◽  
Public International Law ◽  
Important Concept ◽  
Definition Of

This chapter takes us into the domain of legal theory and legal philosophy as it places the questions of Internet jurisdiction in a broader theoretical, and indeed philosophical, context. Indeed, it goes as far as to (1) present a definition of what is law, (2) discuss what are the law’s tools, and (3) to describe the roles of law. In addition, it provides distinctions important for how we understand the role of jurisdictional rules both in private international law and in public international law as traditionally defined. Furthermore, it adds law reform tools by introducing and discussing the concept of ‘market sovereignty’ based on ‘market destroying measures’––an important concept for solving the Internet jurisdiction puzzle.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 36 South Caucasus: South Caucasian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Kupelyants Hayk
Keyword(s):  
International Law ◽  
Civil Code ◽  
Soft Law ◽  
Private International Law ◽  
Legal Systems ◽  
The South ◽  
South Caucasus ◽  
Customary International Law ◽  
The Hague

This chapter explores South Caucasian perspectives on the Hague Principles. The rules of private international law in all three South Caucasian countries—Armenia, Georgia, and Azerbaijan—are primarily contained in statutes: the Chapter of Private International Law in Armenia (1998) and separate statutes on Private International Law in Azerbaijan (2000) and Georgia (1998). Article 1253(1) of the Armenian Civil Code and Article 1(2) of the Azerbaijani Act provides that the courts may apply international customs in the area of private international law. In so far as the Hague Principles amount to or eventually crystallize into customary international law, the courts may give effect to the Hague Principles in that manner. Before that happens, there is nothing in the legal systems of either of the three jurisdictions preventing the courts from citing for explanatory and persuasive reasons soft law instruments, such as the Hague Principles. That said, stylistically the judgments of the South Caucasian jurisdictions are often drafted in a very concise and skeletal manner. Soft law instruments and commentary might influence the reasoning of the judges, but they would rarely refer to them in the text of the judgment.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 16 Morocco: Moroccan Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Zaher Khalid
Keyword(s):  
Public Policy ◽  
International Law ◽  
Case Law ◽  
Vital Role ◽  
Private International Law ◽  
Statutory Law ◽  
The Hague ◽  
The Law

This chapter examines Moroccan perspectives on the Hague Principles. In Morocco, the sources of private international law applicable to international commercial contracts are both of a national and an international nature. International sources include mainly treaties and, to a lesser extent, international customs to which the Moroccan courts may refer in particular cases. National sources are statutory law, case law, and scholarly writings. Case law has always played a vital role in the development and the interpretation of the rules applicable to international commercial contracts. It is indeed the role of the courts to determine the scope of law chosen by the parties and to delimit the boundaries of international public policy as a limit to the application of the law chosen by the parties. Moroccan courts consider international customs as important sources in respect of international contracts and arbitration. Having frequently used the universally accepted principles of private international law, Moroccan courts could easily draw on the Hague Principles to find solutions to certain questions that have not been addressed by the legislature.

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