Современное развитие источников международного частного права
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.
An imbalance of interests can arise not only in favor of the copyright holder against the interests of society. But also against the copyright holder in the interests of another copyright holder. With regard to performing artists, an incredible imbalance has arisen. AI rights began to be recognized only in 1961, when the Rome Convention on the Protection of the Rights of Performers, Producers of Phonograms and Broadcasting Organizations was adopted, which guarantees a minimum amount of rights of performers to their unrecorded performances, giving them not the exclusive right of right holders, but “the opportunity to prevent ". Exclusive rights to performing artists were granted later. Art. 19 of the Rome Convention deprives performing artists of all exclusive rights to recorded performances. The situation is partially overcome. Moral rights were not granted to performing artists under the Rome Convention, they were granted much later. The article considers the development of norms in these three areas (exclusive rights, Article 19 of the Rome Convention, moral rights) in international treaties and the Civil Code of the Russian Federation.
The study dwells on the problem of interaction between North American legal doctrine and codifications of private international law in the state of Louisiana and the Province of Quebec. Covering both classical and modern USA schools of thought in the area of conflict of laws, the article also includes a comparative analysis of Book IV (Conflict of Laws) of Louisiana Civil Code and Book X (On private international law) of Quebec Civil Code respectfully. On comparing these acts, the authors dwell on a thesis that, in spite of the obvious similarities between respectful legal systems, one cannot state undoubtedly that American doctrine of private international law has been recepted by abovementioned codifications in equal measure. Therefore, despite all the similarities, the doctrinal traditions on which they are respectfully based are actually different.
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.
This book is a collection of articles written on the results of the international scientific seminar "Legal aspects of the BRICS", organized by the University of Rome "Tor Vergata" in May 2013. Lawyers - researchers from Italy, Brazil, Russia, India, China and South Africa Republic took part in the discussion on the harmonization of the legal systems of the BRICS and prepared their works, which have been published in 2015.
This article is devoted to the Digest of the Laws of the Russian Empire – an embodiment of the operative legal system in late imperial Russia. Even though the Digest contained the law in force, and thus should be studied as a crucial source on Russian (legal) history, its meaning has been often overlooked. The reason for that is a remarkable difference between the original texts of laws adopted by the legislator, and their published form in the Digest. This difference came from the necessary editing procedures when every new piece of legislation was included in the existing system of the Digest. This strange feature of legal procedure when two different versions of a particular law – the original one and the one codified in the Digest – both remained in force should be considered as a part of official autocratic legality in late imperial Russia. Even though it may seem inefficient and irrational, the practice of obligatory codification of laws in the Digest existed for a rather long time – from 1835 until 1917. My research aims to find possible explanations for the Digest’s prolonged existence in the context of political and legal culture of late imperial Russia. What did Russian ‘official legality’ actually mean on the levels of theory and action?
The application of «protective reservations» is a fundamental principle of modern codifications of the private international law. The post-graduate student of the Private International Law Department, Faculty of Laws, National Research University «The Higher School of Economics», the advocate E.A. Kruty (e-mail: email@example.com) minutely analyses provisions about the reservation about the public policy and mandatory rules which are included in the international acts and ten national codifications of XXI centuries (Azerbaijan, Lithuania, Estonia, Mongolia, Russia, Belgium, Bulgaria, Ukraine, Macedonia, Turkey). Despite the apparent prevalence of the negative construction of the reservation about the public policy the lawmaker prefers in some situations its positive variant. An appeal to codifications allows to identify the certain conditions on which protective reservations take effect. Their most detailed description is contained in the Belgian and Bulgarian codes. Not less interesting is a regulation of the legal consequences coming as a result of application of these legal institutions for private legal relations with a foreign element including in the international civil procedure.
The present Article is devoted to impact on regulation of international relations by soft law. The basic views of soft law norms classification are described. The author focuses attention on influence of soft law in lawmaking process. The analysis of some treaty, custom and soft norms of international law is given. The role of General Assembly Resolutions is underlined.