scholarly journals "Close Connection" Category in International Civil Procedure and in Conflict of Laws

Lex Russica ◽  
2021 ◽  
pp. 46-55
Author(s):  
L. V. Terentyeva
Keyword(s):  
Civil Procedure ◽  
Close Connection ◽  
Private Law ◽  
Court Order ◽  
Judicial Cooperation ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Cross Border ◽  
Legal Relationship ◽  
Judicial Procedures

The use of "close connection" in conflict of laws area and in international civil procedure preconditions the question whether it is possible to interpret it uniformly both as a basis for establishing the jurisdiction to resolve cross-border private law dispute, and as a basis for choosing the applicable law.When studying close connection within the framework of conflict-of-laws regulation, the author of the paper, along with the concept of "close connection" examines the concepts of "connection with only one country" and "the closest connection". The paper also discusses the concept of Proper law which, as a rule, in the Russian doctrine is identified with the category of close connection.Analysis of the close connection as the basis for establishing jurisdiction has led to the conclusion that it is necessary to apply a differentiated approach to determining the content of close connection within the framework of Conflict of Laws and international civil procedure. This assumption is based on the fact that when establishing jurisdiction to consider cross-border private law disputes on the ground of a close connection, a special task is solved to overcome the conflict of jurisdiction while observing the principle of equality between judicial procedures of different states, as well as the principle of international judicial cooperation. In addition, within the framework of the international civil procedure, the concept of “foreign element” preconditioning the manifestation of a close connection of the disputed legal relationship with the court of the state, can be endowed with additional content except the content attached to the foreign element within the framework of the conflict of laws, namely: obtaining evidence abroad; enforcement of a court order abroad, etc.

scholarly journals INTERNATIONAL CIVIL PROCESS AS AN INTEGRAL PART OF PRIVATE INTERNATIONAL LAW

2021 ◽  
Vol 9 (06) ◽  
pp. 259-262
Author(s):  
Akhmurodov Jakhongir ◽  
Keyword(s):  
International Law ◽  
Civil Procedure ◽  
Private Law ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Civil Process ◽  
Definition Of

This article examines various opinions regarding the international civil procedure as part of private international law and concludes that international civil procedure is directly related to the definition of applicable law, and that substantive regulation of private law relations complicated by a foreign element is generally impossible in practice without addressing both conflict of laws and procedural problems.

Einstweiliger Rechtsschutz in grenzüberschreitenden Schiedsverfahren

2021 ◽  
Author(s):  
Julia Mink
Keyword(s):  
Civil Procedure ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Cross Border ◽  
Arbitral Proceedings ◽  
Contractual Obligations ◽  
Substantive Law ◽  
Interim Measures ◽  
Rome I ◽  
Einstweiliger Rechtsschutz

The thesis focuses on the difficulties of determining the applicable law in interim proceedings in cross-border arbitral proceedings. First, it examines whether arbitral tribunals have a lex arbitri. Subsequently, the various possibilities of interim measures are described and the question is discussed whether arbitral tribunals have to refer to the Rome I Regulation or Section 1051 of the German Code of Civil Procedure in order to determine the applicable conflict of laws for contractual obligations. Then, it is analysed how the applicable substantive law is to be determined or how to proceed in case of non-determinability of such. Finally, the consequences of the application of a substitute law for the main proceedings are discussed.

scholarly journals THE CONFLICT REGULATION IN THE IDENTIFICATION OF THE AUTHOR IN CROSS-BORDER RELATIONS

2017 ◽  
pp. 0-0
Author(s):  
Оксана Луткова ◽  
Oksana Lutkova
Keyword(s):  
General Rule ◽  
Contract Law ◽  
Civil Code ◽  
Conflict Of Laws ◽  
Party Autonomy ◽  
Applicable Law ◽  
Domestic Conflict ◽  
Freedom Of Contract ◽  
Cross Border ◽  
Conflict Regulation

The article deals with national approaches to the identification of the author: on the basis of “lex origins” in the framework of intellectual Statute (Portugal, Romania) or contrary to the Intellectual statute (Russia, USA), on the basis of “lex loci protectionis” (Austria, Germany, Belgium). The conclusion is drawn in respect of the use of collision formula «lex origins» to determine the author of the work as the most appropriate mechanism which leads to the solution of the problem of the initial authorship according to a single law, no matter which country’s court considered the dispute. The attention is paid to inaccuracies in the wording of the scope and to the connecting factor of the domestic conflict norm which selects the applicable law to govern the identification of authorship. In order to improve the domestic conflict regulation it is advisable to formulate in the Civil Code the general rule of conflict of laws that is applicable to identify the author / initial owner of the creation removing the indication that restricts the volume of rules in the Article 1256 p. 3 of the Russian Civil Code, adding to this norm the subsidiary connecting factor “lex loci protectionis” and retaining the general connecting factor “lex origins”. It is also proposed to include into the Russian Civil Code’s Article 1256 a special conflict of laws rule for determining the applicable law to identify the author / initial owner which would correlate with the principle of freedom of contract and would be based on the general connecting factor — “law of party autonomy” (lex voluntatis), and subsidiary connecting factor – “contract law of the country” (lex contractus) for the work for hire which has been created under the contract.

scholarly journals Public Policy Interests and Algorithm for Determining the Law Applicable to Private Law Relations Complicated by a Foreign Element

2021 ◽  
Vol 16 (4) ◽  
pp. 184-192
Author(s):  
A. A. Shulakov
Keyword(s):  
Public Policy ◽  
Law Enforcement ◽  
Public Order ◽  
Private Law ◽  
Law And Order ◽  
Applicable Law ◽  
Cross Border ◽  
Enforcement Officer ◽  
Law Enforcement Officer ◽  
The Law

The study contains a step-by-step algorithm for determining the law applicable to private cross-border legal relations. The algorithm is developed based on legislation, law enforcement practice and doctrine. The initial rule of the sequential execution of the stages (steps) of the algorithm is a mechanism in which the determination of the law applicable to the legal relationship at one of the stages excludes the subsequent stages of the algorithm. Public policy interests dictate the rules for determining the law to be applied to private law relations complicated by a foreign element. The establishment by the legislator and law enforcement officer of the closest connection between the interests of conflicting public orders (legal orders) with elements of cross-border legal relations is the basis for the process regulation in the Russian Federation. At the first, second and third stages of the algorithm, the interests of the domestic public order (law and order) dominate. At the fourth stage of the algorithm, public interests in the part not regulated by super imperative norms are correlated with the agreement of the parties on the choice of the applicable law. At the fifth — eighth stages of the algorithm, the law enforcement officer is guided by the rules established by the legislator taking into account the interests of public orders that are conflicting in cross-border legal relations. At the last, ninth stage of the algorithm, the applicable law is established by the judge based on the closest connection between the interests of public order (law and order) with elements of crossborder legal relations.

Parties

2021 ◽  
pp. 77-88
Author(s):  
European Law
Keyword(s):  
Civil Procedure ◽  
Foreign Nationals ◽  
Applicable Law ◽  
Cross Border ◽  
Legitimate Interest ◽  
Administration Of Justice ◽  
Substantive Law

This chapter examines the part of the European Rules of Civil Procedure which aims to ensure that the court is properly accessible to all persons who have a legitimate interest in bringing or defending proceedings, i.e., in vindicating or enforcing rights. Parties to litigation can be persons who are able to hold rights under substantive law. Lacking litigation capacity, parties must be represented according to applicable law. In appropriate cases, proceedings may be brought by several claimants or against several defendants as parties joined to the litigation. The court may order the consolidation of separate proceedings for the purpose of properly managing them. At any time after the commencement of proceedings, substitution or succession of a party by another person is possible if required by law or if it is necessary in the interest of good administration of justice. The chapter then considers cross-border issues, including the capacity of foreign nationals to be a party, as well as their litigation capacity.

scholarly journals A gestação de substituição e o direito internacional privado. A realidade portuguesa = Surrogacy and the conflict of laws. A Portuguese perspective

2019 ◽  
Vol 11 (2) ◽  
pp. 45
Author(s):  
Elsa Dias Oliveira
Keyword(s):  
Home Country ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Cross Border ◽  
Born Child ◽  
Return Home

Resumo: A gestação de substituição tem sido regulada nos diversos ordenamentos jurídicos de modo distinto. Esta diversidade tem como uma das suas consequências que aqueles que pretendem recorrer à gestação de substituição se desloquem aos países onde esta é permitida e retornem, depois, já com a criança nascida na sequência deste processo, aos seus países de residência habitual. As autori­dades competentes destes países são, depois, confrontadas com dificuldades que resultam de pedidos de estabelecimento filiação e para as quais as suas leis internas dificilmente apresentam respostas pensadas para esta realidade.É face a este contexto que se apresenta o presente artigo, em que se visa refletir sobre a realidade jurídica portuguesa acerca da gestação de substituição nos casos que revelem contactos relevantes com mais do que um ordenamento jurídico.Palavras-chave: gestação de substituição, filiação, lei aplicável, reconhecimento de situações constituídas no estrangeiro.Abstract: Surrogacy laws vary from jurisdiction to jurisdiction. Because of this variety, people living in countries that do not allow surrogacy start surrogacy processes abroad – in a country that allows it – and then return home with the born child. The authorities of the home country can then be asked to establish the child’s affiliation, but their laws, in many cases, do not rule or do not allow surrogacy. In this article we analyze the Portuguese laws on this subject and the possible answers that can be given to rule cross-board surrogacy.Keywords: surrogacy, parentage, applicable law, cross-border recognition.

scholarly journals ON THE INTERPRETATION OF THE TERMS «LAW» AND «LEGISLATION» IN THE CONTEXT OF THE AUTONOMY OF WILL OF THE PARTIES TO INTERNATIONAL PRIVATE LAW RELATIONS

2020 ◽  
pp. 151-167
Author(s):  
Tatyana V. Novikova ◽  
Keyword(s):  
Russian Federation ◽  
International Agreements ◽  
Private Law ◽  
International Treaties ◽  
Commercial Arbitration ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
International Private Law ◽  
The Russian Federation ◽  
Law And Legislation

As a general rule, an express written agreement on applicable law is the most successful in the event of a dispute. However, the wording of the agreement, particularly when terms such as «law» and «legislation» are used, can cause significant difficulties in the law enforcement process. The practice of Russian courts and the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation has established the position that the parties' choice of «Russian Federation law» means, first and foremost, their choice of international treaties of the Russian Federation which are an integral part of its legal system and, as far as they are concerned, of Russian regulations. Difficulties in the practice of the International Commercial Arbitration Court are caused by the interpretation of the phrase «Russian Federation law» used in applicable law agreements. In some decisions it is understood as covering only Russian regulatory acts, in others it is understood as implying also international agreements of the Russian Federation. This problem is most acute in the application of the Convention on Contracts for the International Sale of Goods, as the Convention allows the parties to exclude its application. This problem is compounded by the fact that the legislator himself uses various terms in formulating conflict of laws rules. For example, as part of the conflict of laws regulation of contractual legal relations with a foreign element, the Agreement of the countries of the Union of Independent States on the procedure for settling disputes related to business activities uses the term «legislation» and the Civil Code of the Russian Federation uses the term «law». In this regard, we support Oleg Malkin's position on the expediency of using the term «law» both in national conflict of laws rules and in international treaties concluded by the Russian Federation. We believe that if the parties choose the «legislation of the Russian Federation», the ap-plication of international treaties of the Russian Federation will only be justified if the parties themselves confirm that they did not intend to exclude their validity. In the absence of a common position of the parties on this issue, the court and the arbitral tribunal will be forced to interpret the said phrase in the light of its literal meaning and in the light of Art. 3 and 7 of the Civil Code of the Russian Federation as covering only domestic legal acts and excluding (if such exclusion is permissible) international agreements. While acknowledging that in a number of cases the parties to applicable law agreements do not see any difference between the terms «law» and «legislation», we will point out the following. In the absence of an agreed position on the contrary, an express agreement must be interpreted only in accordance with its literal meaning, and a party that does not understand such meaning will suffer the adverse consequences of its misunderstanding. In this regard, the parties to international private law relations should once again be reminded of the recommendation to formulate the texts of applicable law agreements as precisely and unambiguously as possible.

5 Applicable Law

2017 ◽  
Author(s):  
Kim Joongi
Keyword(s):  
New York ◽  
Default Rule ◽  
Private Law ◽  
International Arbitration ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
International Private Law ◽  
The Law ◽  
New York Convention

This chapter focuses on the choice and enforcement of applicable law in arbitration agreements. In international arbitration cases, Article V(1)(a) of the New York Convention provides that the validity of an arbitration agreement should be first determined under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made. Hence, if the parties have not chosen the applicable law for an arbitration agreement, ‘the default rule’ is that the law of the place of arbitration shall apply. This chapter addresses the question as it applies to Korea and considers cases where conflict or a misapplication of the law is in effect. Moreover, it also covers several cases in which courts have applied the Act on International Private Law (AIPL), Korea’s conflict-of-laws statute, to determine the applicable law.

scholarly journals Modern Trends in the Development of Private International Law and its Place in the Legal System

Lex Russica ◽  
2021 ◽  
pp. 44-60
Author(s):  
B. A. Shakhnazarov
Keyword(s):  
International Law ◽  
Regulatory Elements ◽  
Legal Regulation ◽  
Alternative Methods ◽  
Special Role ◽  
Private Law ◽  
Private International Law ◽  
Conflict Of Laws ◽  
The Public ◽  
Cross Border

The paper analyzes the current trends in the development of private international law, its relationship with international public law. Special attention is paid to the relationship between the public and the private in the regulation of cross-border private law relations, the concept of a polysystemic complex. The special role of the international civil process in the system of modern private international law is noted. Being implemented by law enforcement agencies, also in the context of the application of uniform conflict-of-law rules, the conflict-oflaws method of private international law vests with the public area due to its implementation. It is difficult to call the conflict-of-laws regulation a trend in private international law. The author highlights the international (crossborder) nature of private international law. Modern private international law is characterized by the presence of a symbiosis of traditional methods of state substantive and conflict-of-laws legal regulation and non-state regulation emanating from the subjects of private law relations, formed with due regard to the use of modern information technologies and often implemented in the digital environment, including with the use of non-state alternative methods of dispute resolution modernizing their forms with the development of technologies (the ODR, blockchain arbitration, the UDRP).The paper highlights the formation of “cross-border private law” that is private in its own nature and in the context of the formation procedure which means that it comes from the subjects of private law. The author highlights such trends in the development of private international law in modern conditions as harmonization, primarily of electronic methods, of mechanisms for the implementation of private law relations; profiling of private international law within the framework of the activities of international organizations and cross-border self-regulatory organizations; orientation towards the uniform formation of private international law in the world and the expansion of its regulatory elements

scholarly journals UNIFICATION OF INHERITANCE LAW PROVISIONS IN PRIVATE INTERNATIONAL LAW

2020 ◽  
Vol 4 ◽  
pp. 13-19
Author(s):  
Kristine V. Trifonova ◽  
◽  
Sergey G. Trifonov ◽  
Keyword(s):  
International Law ◽  
International Organizations ◽  
Private Law ◽  
Private International Law ◽  
Legal Analysis ◽  
Inheritance Law ◽  
Conflict Of Laws ◽  
Legal Relationship ◽  
Modern Development ◽  
International Private Law

The article discusses topical issues and features of the unification of inheritance law in the international private law. The beginning of unification processes is associated with the presence of various approaches to the settlement of hereditary relations complicated by a foreign element in various legal systems. The article provides a theoretical and legal analysis of such a phenomenon as a complication of hereditary legal relations of foreign a new subject. To solve certain conflict of laws in the field of inheritance law, in particular, by will, the main international acts are followed. The authors aim to study the unification processes in the field of inheritance law in the international private law, which reflect modern development trends in a theoretical sense. In conclusion, the authors come to the conclusion that the legislation of a number of states is trying to protect the rights of weak parties in a potentially equal legal relationship. In this case, we are talking about the corresponding legislative consolidation general principle of law— the use of favorable law for the weak side of the legal relationshipHowever, the possibility of unification approaches of states to solving the issue of post-mortem rights can be defined not even as a trend, but as a be separately considered within the framework of international organizations dealing with issues of unification of inheritance law.

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