Международное частное право: учебно-методический комплекс для подготовки к государственной итоговой аттестации
Present edition is prepared following the results of the international scientific conference «Private International Law: Universal and Regional Aspects».
The collection covers a wide range of problems reflecting the latest trends in private international law. The problems of universal and regional unification are studied, current trends in the development of national legislation on private international law are highlighted. The edition is intended for postgraduates, professors, academic re-searchers dealing with problems of private international law, practicing lawyers and for all interested in this range of problems.
The article is devoted to the research of a new regulation in Private International Law and International Civil Procedure in Argentina which was introduced in the process of recodification of private law. In 2014 a new Civil and Commercial Code of Argentina was adopted in which the Title “Provisions on Private International Law” (articles 2594-2671) establishes choice-of-law (conflict) rules and jurisdictional rules. For the purpose of codification of Private International Law and International Civil Procedure the Argentinean legislator chose intra-branch complex form of codification which is traditional for that country. In the article much attention is paid to the analysis of procedural aspects of legislation adopted. The new regulation is internationally oriented and broadens of judicial discretion in order to take into account the concrete circumstances of a case, the majority of International Civil Procedure rules is directed for the protection of access to the efficient justice. Unfortunately, the Argentinean legislator refused to apply the autonomous complex form of codification of Private International Law and International Civil Procedure, so the new regulation became incomplete, particularly the rules of recognition and enforcement of foreign judgments were not included. Despite the range of shortcomings, the new Private International Law and International Civil Procedure of Argentina have serious advantages: a) closed list of foundations of exclusive jurisdiction of local courts is established; b) recognition of parties’ autonomy of will in choice of court is introduced; c) principle of controlled plurality of proceedings is formulated.
The article is devoted to a comprehensive study of the current state, specifics and perspectives of the codification of Israel’s private international law (PIL) - a mixed legal family state with a «hybrid» legal system, which is fully manifested in the nature of conflict-of-law regulation of relations connected with foreign law and order. The regulatory framework of the study is the Israeli legislation of PIL and Israeli case law. Much attention is also paid to the analysis of the Israeli doctrine of PIL, whose representatives advocate the idea of adopting a comprehensive autonomous law on PIL and international civil procedure. The research methodology is based on the application of methods of comparative analysis and comparative law. The direct subject of the study is the sources of the PIL of Israel and some of the institutions of the general part of the PIL - renvoi, qualification of legal concepts, determination of the content of foreign law. These institutions of the Israeli PIL are very slightly regulated by law, but they cause constant problems in judicial practice and attract the attention of the doctrine. The article concluded that Israel’s PIL was originally and still rooted in English common law and develops in line with this tradition, although the general process of «continentalization» of Israeli law also affects the relationship of the sphere of PIL.
Intellectual property law enshrines the monopoly of the copyright holder. It is absolutely necessary that this monopolism of the right holder does not contradict the public interest. The sphere of private and public relations in intellectual property law is currently one of the most relevant in the world. It causes interest in Russia. Separate articles have been published on this topic, but in the form of a monograph it is presented for the first time in this collected articles. Under the cover of this work are collected the articles of the authors whose views, academic schools, the practical experience are differ. We believe that this is an advantage of this collected articles, because it gives an idea of how difficult it is to achieve a balance between the monopolism of the right holder and the public interest.
The present article examines the main peculiarities of modern development of the sources of Private International Law, including domestic legislation, international treaties, international customs, case law, legal acts of international organizations and lex mercatoria. The author proved that at present the main trend of the development of domestic legislation as a source of PIL consists of its intensive and extensive codification. Another trend of the development of PIL sources undermines the enlargement of instruments of non-state regulation of private international relations, namely, lex mercatoria as an example of soft law. As far as the development of PIL sources in the European Union is concerned, two trends may be observed simultaneously: firstly, formation of European conflict law and European Civil Procedure by instruments not only having legal force but also having direct application on the territory of the EU Member States (regulations); secondly, formation of the unified material rules regulating private relations amongst different subjects on the territory of the EU, which are contained either in regulations, or in non-binding documents.
This article provides a comprehensive analysis of the concept of “state immunity” as reflectedin the legislation and judicial practice of the Russian Federation. A study in decisions ofRussian courts prior to the adoption of the Federal Law on Immunities of 2016 leads to theconclusion that, even during the juridical consolidation of the theory of absolute immunity inRussia, on a number of questions Russia in fact adhered to a theory of functional immunity.The concept of absolute immunity which the USSR followed (and which Russia as itslegal successor subsequently also followed) gradually began to conflict with the RussianFederation’s foreign economic activity and contract practices, and instances of Russia’srenunciation of absolute immunity increased in frequency. This tendency clearly shows that inthe 21st century the state cannot have absolute immunity because that version of sovereigntyconflicts with the global practice of state participation in private international relations. Inother words, the Russian Federation with the adoption of its Federal Law on Immunities hasmoved away from a theory of absolute immunity to acknowledge and employ a theory of thefunctional immunity of the state. At the same time, the Law on Immunities of 2016 alreadyrequires more elaboration and corrections even though it was only recently passed andimplemented. The methodology of study is based on the application of formal, logicaland comparative research methods together with general systematic methods of analysisand synthesis, deduction and induction. Questions touched upon in this article are widelydiscussed in establishing doctrines of private international law in both foreign and in Russianstudies. Issues connected with state immunity are raised by the authors and suggestions fortheir resolution are formulated based on the legal experience of contemporary Russia.
The article examines current trends in the process of national codifications of international private law (PIL) on the example of countries in Asia and Africa. The choice of the subject of the study is due to the fact that the PIL of these countries is least known to the Russian reader. Meanwhile, the process of codification of PIL is global, covering all regions of the world, including Asia and Africa. The legislation of these countries demonstrates the whole variety of forms and methods of codification of PIL, the whole range of contradictions and problems that arise when developing new laws and modernizing old ones. The article concluded that in the codification of MPEs in African and Asian countries, the intrabranch form dominates, with a considerable number of legislators preferring the intrabranch integrated method; there is a direct borrowing of the European models adopted many years ago, often without their adaptation to current trends in the development of the PIL; many laws on PIL in Islamic countries have a religious tint, which may hinder the normal development of cross-border private relations.
The article is devoted to a particular form of freedom of assembly — the right to counter-demonstrate. The author underlines the value of this right as an element of democratic society, but also acknowledges the risk of violent actions among participants of opposing demonstrations. Due to this risk, the government may adopt adequate measures restricting the right to counter-demonstrate, certain types of which are analyzed in this paper.
Development of standards of international controllability is reviewed in the article. Institutional approach is applied to development of international legal regime of Energy Charter. Definition of controllability is connected to development of international standards of dispute settlement, which are described in the article in detail. In connection with controllability, Russian interest, defense of investment in European Union and ecological investment encouragement, is reviewed in the article.
мировое управление и управляемость, Мировая экономика, международное экономическое право, энергетическая хартия, International control and controllability, International economics, international economic law, Energy Charter
международное частное право; недвижимость; ; школа бартолистов; бартолисты; теория статутов; статуарная теория/