scholarly journals Surrogacy in international private law and public law aspects

2021 ◽  
Vol 2 (20) ◽  
pp. 5
Author(s):  
Z. V. Chevychalova
Keyword(s):  
International Law ◽  
Public Law ◽  
Private Law ◽  
Private International Law ◽  
Special Rapporteur ◽  
Surrogate Motherhood ◽  
Child Trafficking ◽  
International Private Law ◽  
The Hague ◽  
The Right

The proposed article is devoted to the issue of surrogacy in its international private law and public law aspects. The complexity and multidimensionality of issues, the emergence of which is due to the birth of children as a result of agreements on surrogacy, have been investigated. Taking into account the three main approaches to the problem of surrogacy existing in the world, namely: the first is a number of states and organizations that categorically deny the very possibility of trade in the context of surrogate motherhood, noting that the child is not talking about any deal; the second approach is that a significant number of stakeholders express concern about the potential merger of surrogate motherhood and child trafficking, which could lead to the criminalization of surrogate mothers and future parents, as well as possible violations of the right to sexual and reproductive health; the last group is a number of states and organizations that have spoken out in favor of a complete prohibition of surrogacy without any restrictions, the consequences of such approaches have been analyzed. Within the framework of this article, the author considers it appropriate to cite the position of the UN Special Rapporteur on the sale of children and the sexual exploitation of children, including child prostitution, child pornography and the production of other materials on sexual abuse of children, the Permanent Bureau of the Hague Conference on Private International Law, as well as the European Court of Justice on human rights on the issues considered. The article draws a number of conclusions. First of all, compliance with the recommendations of the Special Rapporteur requires the adoption of urgent measures to prevent violations of the rights of all participants in a surrogacy relationship due to their vulnerability. Also, regarding the lack of regulation of these legal relations at the level of law within the jurisdiction of Ukraine, the author expresses his opinion about the certain justification of such a situation until a unified normative act is adopted based on the results of the work of the Hague Conference on Private International Law. Harmonization of legal norms at the national and international levels will allow in the future to avoid conflicts in relations of cross-border surrogacy, taking into account the issues of child trafficking, non-discrimination and the right to health of children born through surrogacy, citizenship, name and family ties in the framework of respect for the child’s right to preserve his identity, as well as access to information on origins and rights to family life, etc

scholarly journals International legislation instrument on surrogate motherhood: prospects of creation

2020 ◽  
pp. 153-159
Author(s):  
O.V. Shumalo ◽  
V.Ya. Kalakura
Keyword(s):  
International Law ◽  
Legal Status ◽  
Private International Law ◽  
Expert Group ◽  
International Level ◽  
Surrogate Motherhood ◽  
Special Instrument ◽  
International Private Law ◽  
The Hague ◽  
Set Up

Surrogacy is rapidly growing in intensity in almost the entire world, particularly in Ukraine, at the same time rapidly challenging international private law. Significant differences in approaches to this matter between various countries lead to conflict of laws and the need for its resolution at the international level as well as development of appropriate unified rules by creating an international instrument on surrogate motherhood. In this article, the author is trying to find out what the prospects of creating such a special instrument are today. It has been discovered that research on the possibilities of such regulation has been conducted within the framework of the Hague Conference on Private International Law for about ten years. To this end, a special Group of Experts has been set up within the organization to hold annual meetings and report on them. It is established that the need to create an international instrument on crossborder surrogacy agreements has been recognized at the international level. The Expert Group is currently exploring the possibility of implementing this project. The Expert Group decided that the purpose of this document would be to secure the recognition in the States Parties of a court decision on parentage that resulted from surrogacy. Consideration is also given to extending the document on recognition of acts of competent authorities on the registration a child’s birth and their legal status, given that in many countries parentage resulting from use of surrogate motherhood procedures is established without judicial involvement. It has been clarified that an international legal instrument will be developed in the form of a protocol operating in parallel with the Convention on the Recognition of Legal Parentage, which the Expert Group is also currently working on as part of a single project. In the article, it is discovered what features and provisions the future document may contain. Having analyzed the works of scientists, reports of the Expert Group and other materials, the author concludes that in the next few years a draft protocol on the recognition of paternity, established on the basis of cross-border surrogacy agreements, may be developed.

Internet Jurisdiction Law and Practice

2021 ◽  
Author(s):  
Julia Hörnle
Keyword(s):  
Intellectual Property ◽  
International Law ◽  
Data Protection ◽  
Hate Speech ◽  
Public Law ◽  
The Internet ◽  
Private Law ◽  
Private International Law ◽  
Online Data ◽  
Media Regulation

Jurisdiction is the foundational concept for both national laws and international law as it provides the link between the sovereign government and its territory, and ultimately its people. The internet challenges this concept at its root: data travels across the internet without respecting political borders or territory. This book is about this Jurisdictional Challenge created by internet technologies. The Jurisdictional Challenge arises as civil disputes, criminal cases, and regulatory action span different countries, rising questions as to the international competence of courts, law enforcement, and regulators. From a technological standpoint, geography is largely irrelevant for online data flows and this raises the question of who governs “YouTubistan.” Services, communication, and interaction occur online between persons who may be located in different countries. Data is stored and processed online in data centres remote from the actual user, with cloud computing provided as a utility. Illegal acts such as hacking, identity theft and fraud, cyberespionage, propagation of terrorist propaganda, hate speech, defamation, revenge porn, and illegal marketplaces (such as Silkroad) may all be remotely targeted at a country, or simply create effects in many countries. Software applications (“apps”) developed by a software developer in one country are seamlessly downloaded by users on their mobile devices worldwide, without regard to applicable consumer protection, data protection, intellectual property, or media law. Therefore, the internet has created multi-facetted and complex challenges for the concept of jurisdiction and conflicts of law. Traditionally, jurisdiction in private law and jurisdiction in public law have belonged to different areas of law, namely private international law and (public) international law. The unique feature of this book is that it explores the notion of jurisdiction in different branches of “the” law. It analyses legislation and jurisprudence to extract how the concept of jurisdiction is applied in internet cases, taking a comparative law approach, focusing on EU, English, German, and US law. This synthesis and comparison of approaches across the board has produced new insights on how we should tackle the Jurisdictional Challenge. The first three chapters explain the Jurisdictional Challenge created by the internet and place this in the context of technology, sovereignty, territory, and media regulation. The following four chapters focus on public law aspects, namely criminal law and data protection jurisdiction. The next five chapters are about private law disputes, including cross-border B2C e-commerce, online privacy and defamation disputes, and internet intellectual property disputes. The final chapter harnesses the insights from the different areas of law examined.

scholarly journals Application of Brussels II bis regulation in exercising the right of access to a child by extended family members

2021 ◽  
Vol 60 (90) ◽  
pp. 189-205
Author(s):  
Radmila Dragišić
Keyword(s):  
European Union ◽  
International Law ◽  
Hague Convention ◽  
Private International Law ◽  
The European Union ◽  
Parental Responsibility ◽  
The Hague ◽  
The Right ◽  
The Hague Convention ◽  
Right Of Access

In this paper, the author explores the sources of European Union Law that regulate one segment of parental responsibility - the right of access to a child. The focal point of research is the transition from the conventional (interstate) regulation of judicial cooperation in marital disputes and parental responsibility issues to the regulation enacted by the European Union institutions, with specific reference to the Brussels II bis Regulation. First, the author briefly points out to its relationship with other relevant international law sources regulating this subject matter: the Hague Convention on the Civil Aspects of International Child Abduction; the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in the Field of Parental Responsibility and Measures for the Protection of Children; and other international sources of law. Then, the author examines in more detail its relationship with the Brussels II bis recast Regulation, which will be applicable as of 1 August 2022. In addition, the paper includes an analysis of the first case in which the Court of Justice of the European Union (CJEU) decided on the application of the Brussels II bis Regulation, at the request of granparents to exercise the right of access to the child. On the issue of determining the competent court which has jurisdiction to decide on how this right shall be exercised, the CJEU had to decide whether the competent court is determined on the basis of the Brussels II bis Regulation or on the basis of national Private International Law rules. This paper is useful for the professional and scientific community because it deals (inter alia) with the issue of justification of adopting a special source of law at the EU level, which would regulate the issue of mutual enforcement of court decisions on the right of access to the child. This legal solution was proposed by the Republic of France, primarily guided by the fundamental right of the child to have contact with both parents.

PRIVATE COMMERCIAL LAW CONVENTIONS AND PUBLIC AND PRIVATE INTERNATIONAL LAW: THE RADICAL APPROACH OF THE CAPE TOWN CONVENTION 2001 AND ITS PROTOCOLS

2016 ◽  
Vol 65 (3) ◽  
pp. 523-540 ◽  
Author(s):  
Roy Goode
Keyword(s):  
International Law ◽  
Public Law ◽  
Vienna Convention ◽  
Private Law ◽  
Private International Law ◽  
Commercial Law ◽  
Public And Private ◽  
Conflict Of Laws ◽  
Domestic Law ◽  
Radical Approach

It is a remarkable circumstance that with a few honourable exceptions all writers on international law in general and treaty law in particular focus exclusively on public law treaties. Private law conventions, including those involving commercial law and the conflict of laws, simply do not come into consideration. Yet such conventions, like public law conventions, are treaties between States and are governed by the 1969 Vienna Convention on the Law of Treaties and many of them are of great significance. Their distinguishing feature is, of course, that while only States are parties, private law conventions deal primarily, and often exclusively, with the rights and obligations of non-State parties. So while the treaty is international it does not for the most part commit a Contracting State to any obligation other than that of implementing the treaty in domestic law by whatever method that State's law provides, if it has not already done so prior to ratification.

scholarly journals Mujer, matrimonio y maternidad: cuestiones de Derecho internacional privado desde una perspectiva de género = Woman, marriage and motherhood: issues of Private International Law from a gender perspective

2018 ◽  
Vol 10 (1) ◽  
pp. 439
Author(s):  
Carmen Vaquero López
Keyword(s):  
International Law ◽  
Gender Equality ◽  
Public Order ◽  
Private Law ◽  
Private International Law ◽  
Gender Perspective ◽  
Men And Women ◽  
International Private Law

Resumen: En los últimos tiempos la lucha por alcanzar la igualdad de género y acabar con las injusticias que separan a hombres y mujeres se ha convertido en una auténtica “revolución” que ha invadido prácticamente todos los ámbitos sociales. Este movimiento debe también remover los principios que informan las soluciones de Derecho internacional privado en nuestro país. En el presente trabajo se analizan desde una perspectiva de género dos instituciones que tradicionalmente han sido bastión del patriarcado y cuya regulación se ha venido llevando a cabo desde consideraciones principalmente androcéntricas: el matrimonio y la maternidad.Palabras clave: estereotipo, principio de igualdad, dignidad, orden público, interés de la mujer.Abstract: In the latest times, the fight for achieving the gender equality and for putting an end to the injustices that separates men and women has become a true “revolution” that has invaded practically all social areas. This movement should also remove the principles that inform the solutions of International Private Law. In this paper we analyze from a perspective of gender two institutions that have traditionally been a bastion of patriarchy and whose regulation has been carried out from mainly androcentric considerations: the marriage and the motherhood.Keywords: stereotype, principle of equality, dignity, public order, interest of the woman.

scholarly journals Cuestiones vinculadas a la constitución de la adopción de mayores de edad: análisis desde el Derecho internacional privado español = Issues connected with the constitution of the adoption of adults: analysis from Spanish Private International Law

2019 ◽  
Vol 11 (1) ◽  
pp. 904
Author(s):  
María Jesús Sánchez Cano
Keyword(s):  
International Law ◽  
International Adoption ◽  
Controversial Issues ◽  
Private Law ◽  
Private International Law ◽  
Applicable Law ◽  
International Private Law

Resumen: Partiendo del estudio de la Ley 54/2007, de adopción internacional y después de examinar la normativa sustantiva sobre la adopción en España, el presente trabajo aborda el análisis de algunas de las cuestiones controvertidas que se suscitan respecto de las adopciones de personas mayores de edad y menores emancipados, desde la perspectiva del Derecho Internacional Privado y específicamente, en lo referente a la constitución de la adopción por las autoridades españolas.Palabras clave: Ley de adopción internacional, adopción internacional de personas mayores de edad, Derecho Internacional Privado, ley aplicable, validez de adopciones constituidas por autoridades extranjeras.Abstract: Based on the study of Law 54/2007, on international adoption and after having examined the substantive legislation on adoption in Spain, this paper deals with the analysis of some of the controversial issues that arise regarding adoptions of adults and emancipated minors, from the Private International Law perspective and specifically with regard to the constitution of adoption by the Spanish authorities.Keywords: International adoption law, international adoption of adults, International Private Law, applicable law, constitution of adoption by Spanish authorities.

scholarly journals PRIVATE INTERNATIONAL LAW IN THE DEVELOPMENT OF INFORMATION AND COMMUNICATION TECHNOLOGIES

2019 ◽  
pp. 169-182
Author(s):  
M. V. MAZHORINA ◽  
L. V. TERENTYEVA ◽  
B. A. SHAKHNAZAROV
Keyword(s):  
International Law ◽  
Information And Communication Technologies ◽  
General Principle ◽  
Communication Technologies ◽  
Private Law ◽  
Private International Law ◽  
Cross Border ◽  
Sovereign Equality ◽  
International Private Law ◽  
Information And Communication

The process of globalization, the development of information and communication technologies, networking are changing society dramatically and, as a result, its superstructure — law. International private law, by virtue of its own subject matter and special methodology, is at the forefront of the corresponding changes. The paper examines the problems of defining the concept of territorial sovereignty in the non-territorial information space that are of serious importance in relation to private international law. Its principles are the general principle of the sovereign equality of states, acting as a general principle for private international law, and a special principle of the sovereign equality of national law of states. The problem of the realization of the territorial nature of the conflict of attachment formulas and the grounds of international jurisdiction in relation to a certain segment of the extra-territorial information space is posed. The issue of conditionality of the adaptation of the principles and methodology of legal regulation of public relations in the conditions of digital technologies by the need to understand the conditions and boundaries of the implementation of sovereignty, the jurisdiction of the state in the information and communication space is investigated. The processes comprehended within the framework of the science of international private law are to some extent relevant for other branches of law. This paper analyzes such indicators of current changes in the legal paradigm as the impact of information and telecommunication technologies on the development of private international law, the place and increasing importance of non-state regulation in the process of streamlining cross-border private law relations, and the development of non-state systems for resolving cross-border disputes. The authors touch upon the problems of the use of blockchain technologies and the protection of intellectual property in cross-border private law relations; private adhocracy rulemaking, the formation of various social phenomena in the key lex mercatoria, the influence of international commercial arbitration, online platforms on the formation of current trends in the field of resolution of crossborder disputes, etc.

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