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.

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.

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.

THE COMMON EUROPEAN SALES LAW, CONSUMER PROTECTION AND OVERRIDING MANDATORY PROVISIONS IN PRIVATE INTERNATIONAL LAW

2013 ◽  
Vol 62 (2) ◽  
pp. 463-483 ◽  
Author(s):  
Christopher Bisping
Keyword(s):  
International Law ◽  
Consumer Protection ◽  
Private International Law ◽  
Cross Border ◽  
Border Trade ◽  
The Common ◽  
Definition Of ◽  
Common European Sales Law ◽  
Relationship Of ◽  
The Relationship

AbstractThis article analyses the relationship of the proposed Common European Sales Law (CESL) and the rules on mandatory and overriding provisions in private international law. The author argues that the CESL will not achieve its stated aim of taking precedence over these provisions of national law and therefore not lead to an increase in cross-border trade. It is pointed out how slight changes in drafting can overcome the collision with mandatory provisions. The clash with overriding mandatory provisions, the author argues, should be taken as an opportunity to rethink the definition of these provisions.

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.

Introduction

2018 ◽  
Author(s):  
Roxana Banu
Keyword(s):  
Nineteenth Century ◽  
International Law ◽  
Intellectual History ◽  
Private International Law ◽  
Historical Account ◽  
The Common ◽  
The Individual ◽  
Historical Accounts ◽  
Point Of Reference

This chapter describes and contests the common assumptions about nineteenth-century private international law intellectual history. Conventional historical accounts focus on broad schools of thought in private international law (PrIL), such as nationalism and internationalism, or personality and territoriality. By contrast, the central thesis of this book, described in this first chapter, is that internationalism was constructed differently depending on whether nineteenth-century internationalists took the state or the individual as the point of reference. This chapter argues that reading contemporary concepts and debates into nineteenth-century PrIL scholarship prevented us from engaging with the nuances and unique motivations of nineteenth-century PrIL theories. Instead, this introductory chapter outlines the contextual perspective adopted in this book’s intellectual historical account, which ultimately helps in recovering and reconstructing a relational internationalist perspective in nineteenth-century private international law legal thought.

Protection of the Individual in Recent Private International Law Codification in Latin America

2019 ◽  
pp. 251-267
Author(s):  
Sebastián Paredes
Keyword(s):  
International Law ◽  
Latin American ◽  
Access To Justice ◽  
Private International Law ◽  
Applicable Law ◽  
Cross Border ◽  
Recent Developments ◽  
Civil Codes ◽  
The Individual ◽  
Traditional Approaches

This chapter presents an overview of the recent developments in Latin American private international law acts and civil codes for cross-border cases. International jurisdiction, applicable law and international judicial co-operation in recent private international law rules contained in national sources are the focus of analysis with special attention to solutions given by traditional approaches and theories but also by modern ones like the possibility to use non-State law for access to justice or for international commercial contracts. Other questions addressed in this chapter are: Is the protection of individuals improved in these new laws? How Latin Americans seek to deal with the decisive upsurge of human rights principles in post-modern private international law and cross border relationships and to fulfil access to justice?

scholarly journals Prawo do opieki dyplomatycznej i konsularnej – przyczynek do rozważań w świetle standardu międzynarodowego

2019 ◽  
pp. 143-162
Author(s):  
Krzysztof Kozłowski
Keyword(s):  
International Law ◽  
Host Country ◽  
Standard Of Care ◽  
Point Of View ◽  
Legal Standard ◽  
The Subject ◽  
Definition Of ◽  
The Individual ◽  
The Right ◽  
Subjective Rights

This article aims at analyzing the right to diplomatic and consular protection in the context of the standard resulting from international law. It tries to give a definition of this institution, pointing to its public and subsidiary nature. It also points out that diplomatic and consular assistance is carried out in a situation of conflict between the interests of the individual and the country of origin, and that of the host country. The article also discusses the subject and subject matter of consular and diplomatic care.                 Moreover, the study comments on the specific features of this right from the point of view of the complexity and effectiveness of the protection of rights at the international level. In this context it was pointed out that the right to diplomatic and consular protection is not a classic right, but can be considered as an instrument for the operation of other rights or freedoms. The right to consular and diplomatic care is devoid of homogeneous regulation, but also depends on the legal standard of care offered by the home state and must be within the limits set by the host country. The scope of its application may be related to any legal event that may occur when the entity is in a situation of contact with the legal system of the receiving state.                 The discussions under consideration highlighted the subsidiarity of the right to diplomatic and consular assistance for the exercise by the individual of his or her rights and freedoms. However, There is no complete protection standard in this respect, which is conducive to the lack of exhaustive regulation at the convention level, which, in extreme cases, can jeopardize the exercise by the individual of his or her subjective rights, that is to ensure its adequate protection standard in the territory of the host country.

scholarly journals Contract for the international sale of goods: Principle of autonomy of the will of parties within documents of the Hague Conference on Private International Law

2020 ◽  
Vol 11 (4) ◽  
pp. 972-992
Author(s):  
Tatiana V. Novikova ◽  
Keyword(s):  
International Law ◽  
Legal Regulation ◽  
Private International Law ◽  
External Trade ◽  
Wide Range ◽  
The Hague ◽  
The Law ◽  
International Sale Of Goods ◽  
Sensitive Issues ◽  
Autonomy Of Will

The article is devoted to the analysis of legal regulation dealing with choice-of-law agreements by parties to international sale of goods contracts, namely in two documents of the Hague Conference on Private International Law: the Convention of 1955 on the Law Applicable to International Sales of Goods (in force) and the Convention of 1986 on the Law Applicable to Contracts for the International Sale of Goods (not yet in force). The Convention of 1955 sets a strict standard of autonomy of will (choice of a country’s domestic law; based only on the terms of the contract). Having a small number of participants and characterized by inconsistent law enforcement practice, this convention, nevertheless, is a valid legal instrument which Russian actors in the field of external trade should take into account when cooperating with nationals of member states. The Convention of 1986 establishes a substantively more liberal autonomy of will standard (change of the applicable law; demonstrated by the terms of the contract and the conduct of the parties in their entirety). However, many participants in the drafting procedure led to a wide range of views in regard to parties’ autonomy (including diametrically opposite ones). This resulted in a compromise nature of the solutions (and even the drafters’ direct refusal to address parties’ choice sensitive issues: choice of lex mercatoria, depecage) and, likely, an insufficient adoption for the Convention to enter into force. The Conventions’ basic principles (1955 — irrespective of having a few number of participants; 1986 — irrespective of not entering into force) have the potential for practical application in international commercial arbitration. In the case of parties’ autonomy, such an application would be limited to its recognition as far as the standard of the first is strict and somewhat outdated, whereas the standard of the second has been accepted in the framework of discord between states and avoids addressing sensitive issues in its implementation.

GENERAL CHARACTERISTICS OF MEDICAL SECRECY

2020 ◽  
pp. 122-129
Author(s):  
Tatyana Y. Rodina ◽  
Keyword(s):  
Social Relations ◽  
Legal Regulation ◽  
Healthcare Sector ◽  
Generic Concept ◽  
Private Interests ◽  
Legal Problems ◽  
The Russian Federation ◽  
Definition Of ◽  
The Individual

The problem of the interaction of the interests of the individual, society and the state, the determination of the limits of interference in the spheres of private interests of third parties exists in all states as their integral part. A number of problems have accumulated in the healthcare sector, and in general in matters of protecting the health of citizens of the Russian Federation, which require immediate resolution. The very idea of fundamental changes in healthcare is associated, in particular, with the COVID-19 pandemic, which showed that domestic healthcare, despite the fact that it generally copes with new threats, has turned out to be vulnerable in modern realities. The object of the research of this article is the legal problems of the definition of the institution of medical secrecy, the totality of social relations that may arise in the process of its legal regulation. The principles of protecting the health of citizens, the issues of defining medical secrets as a generic concept are considered, signs of such information and the grounds for its provision are given.

Ch.3 Validity, s.3: Illegality, Art.3.3.1

2015 ◽  
Author(s):  
Cuniberti Gilles
Keyword(s):  
International Law ◽  
Specific Aspect ◽  
Private International Law ◽  
Mandatory Rule ◽  
Mandatory Rules ◽  
Scope Of Application ◽  
Definition Of

This commentary focuses on Article 3.3.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning contracts that infringe mandatory rules. Art 3.3.1 governs a specific aspect of the mandatory rules regime, namely the effect that their infringement produces on a contract. The relevant mandatory rules, however, are not set forth in the PICC; rather, the PICC defer to the binding norms from which such rules originate. Thus, the definition of what constitutes illegal conduct is to be found in those binding norms. Similarly, Art 3.3.1 defers to Art 1.4 PICC with respect to the applicability of any mandatory rule, which, in turn, defers to the relevant rules of private international law. This commentary discusses the scope of application of Art 3.3.1, with particular emphasis on the effects of mandatory rules whether or not expressly prescribed, effects upon the contract and remedies under the contract, and the importance of mandatory rules.

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