Современное развитие источников международного частного права

Ерпылева Наталия Юрьевна

Book chapter

Современное развитие источников международного частного права

С. 167-179.

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.

Language: Russian

Full text (PDF, 9.46 Mb)

Keywords: Private International Law domestic legislation international treaties lex mercatoria non-state regulation codification conflict law material rules EC regulations

In book

Simms ubi suinus. Международное право XXI века: мир и безопасность, сотрудничество, права человека: Liber в честь профессо Amicorum в честь профессора Людмилы Петровны Ануфриевой

М.: 2016.

Современные тенденции в процессе национальный кодификаций международного частного права (на примере стран Азии и Африки)

Гетьман-Павлова И. В. В кн.: Международное частное право: универсальные и региональные аспекты. М.: Юстиция, 2018. С. 38-53.

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.

Added: Mar 8, 2019

Система права в Российской Федерации: проблемы теории и практики : Сборник научных статей. Материалы V ежегодной международной конференции, 19-22 апреля 2010 г.

Михеева И. В. М.: РАП, 2011.

Added: Nov 23, 2012

The Evolution of Conflict Regulation in Private International Law of Russia and Poland

Yerpyleva N. Law. LAW. Высшая школа экономики, 2015

The present article examines the evolution of conflict regulation in the private international law of Russia and Poland. The author identifies the concept, structure and types of conflict rules, stressing that the conflict of laws is the most important category of private international law. A detailed classification of the types of connecting factor formulas under which connecting factors of bilateral conflict rules are formed is undertaken. The detailed analysis of conflict rules contained in Russian and Polish legislation set forth mainly in the Civil Code of the Russian Federation and the Law of Poland “On Private International Law” is conducted with the help of the comparative and formal-logical methods of research. The author also scrutinizes different conflict rules contained in the Treaty between Russia and Poland on legal assistance and legal relations in civil and criminal matters. The author concludes that modern conflict regulation in Russia and Poland is in accordance with those trends in private international law, which can be seen through the prism of the international dimension.

Added: Mar 22, 2015

Правовое регулирование минимальной оплаты труда

Орловский Ю. П., Кузнецов Д. Л., Черняева Д. В. Проблемы рынка труда. WP3. Высшая школа экономики, 2013. № WP3/2013/09.

This research is aimed at analyzing the prospects of the Russian minimum wage legislation reform from an international legislative perspective. Authors study historical aspects of conceptual development in the field worldwide, examine the “minimum wage” concept definitions suggested in international treaties and legislative sources of various countries from a comparative viewpoint, suggest a methodology of the minimum wage setting procedures and systemize relevant mechanisms of enforcement. A policy of abstention from the minimum wage setting on the national level has also been studied and the compensatory instruments have been singled out and described. On the basis of the results of this research major trends in the minimum wage regulations in contemporary world have been outlined. A study of the pressing problems of the minimum wage legal regulation in the Russian Federation and of the suggestions for its further development are given in a separate section of this paper.

Added: Nov 1, 2013

Tax Rules in Non-Tax Agreements

Amsterdam: IBFD, 2012.

Tax rules in non-tax agreements is a topic of great relevance in practice. Yet, up to now, this area of tax law has been generally neglected by researchers. The aim of this book is to close this gap in tax law research and to analyse the provisions of international agreements and similar legal instruments under international law which provide for a special domestic law tax treatment for specific individuals and international organizations. Twenty-three national reports from countries across the globe have been compiled and are published in this volume. Seventy experts, including the authors of the national report, convened for a joint conference on “Tax Rules in Non-Tax Agreements” in Rust (Austria) from 7-9 July 2011. The national reports focus on the interaction of tax rules in non-tax agreements with the corresponding tax treaty rules. Moreover, possible matters of dispute regarding the justification of these tax rules within the legal and political frameworks of the different states are given much attention. The objective of this book is to show the relevance of tax rules in non-tax agreements, to highlight problematic issues and to encourage future research in this important field of tax law.

Added: Oct 11, 2017

Международните договори в областта на международното трудово право и тяхнуто тълкуване

Lyutov N. L. In bk.: Юбилеен сборник, посветен на 80-годишнината на проф., д.ю.н. Васил Мръчков. Sofia: Труд и право, 2014. P. 71-92.

Added: Dec 1, 2014

Американские доктрины коллизионного права в кодификациях международного частного права Квебека и Луизианы

Морозова В. В. Вопросы правоведения. 2011. № 1. С. 159-182.

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.

Added: Sep 21, 2012

Aspetti giuridici del BRICS

Rome: CEDAM, 2015.

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.

Added: Jun 20, 2015

The Digest of Laws of the Russian Empire: the Phenomenon of Autocratic Legality

Borisova T. Y. Law. LAW. Высшая школа экономики, 2012. No. 03.

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?

Added: Aug 27, 2012

Защитные оговорки в современных кодификациях международного частного права

Крутий Е. А. Адвокат. 2011. № 4. С. 41-51.

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: ekrutij@yandex.ru) 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.

Added: Oct 14, 2012

«Мягкое право» в международной правовой системе

Зайцева Е. А. Современное право. 2011. № 2. С. 135-138.

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.

Added: Nov 30, 2012