Unification and harmonization in private international law. Bodies carrying out the unification of norms in PIL. §1. The problem of unification and harmonization in private international law. The first attempts at international treaty unification of the norms on the status of legal entities

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-1.jpg" alt="> Unification and harmonization of private international law: concept, types">!}

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-2.jpg" alt=">Historical and legal aspect international unification private law n F.K. von Savigny "System"> Historical and legal aspect of the international unification of private law n F.K. von Savigny "The system of modern Roman law": the idea of "spatial boundaries of the power of legal norms over legal relations" is formed - a new theory conflict law n Later, Savigny's ideas were developed in the works of his followers L. von Bar, A. Pille, E. Tsitelman n In Russian legal doctrine, the ideas of the existence of generally accepted principles in private international law were expressed in the works of such famous scientists as F. F. Marten , A. N. Mandelstam, L. A. Komarovsky

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-3.jpg" alt=">Historical and legal aspect of the international unification of private law n In 1865 first congress"> Историко-правовой аспект международной унификации частного права n В 1865 г. первый конгресс специалистов по торговому праву (Шеффилд) изучил возможности унификации некоторых разделов морского права. n В 1877 г. Международная ассоциация права осуществила первую унификацию в области морского права, приняв Йорк-Антверпенские правила об общей аварии. n в Берне были приняты конвенции об авторском праве (1886 г.) и о !} rail transport cargo (1890), in Brussels - a convention on the law of the sea. n In 1888 -1889. The First South American International Congress was held in Montevideo, where nine treaties were adopted, which are "a comprehensive code of private international law governing relations with foreign element in civil, civil procedural, commercial, criminal and criminal procedural law” .

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-4.jpg" alt=">Historical and legal aspect of the international unification of private law n 1939 -1940 in Montevideo"> Историко-правовой аспект международной унификации частного права n 1939 -1940 гг. в Монтевидео состоялся Второй Южноамериканский международный конгресс, где были приняты девять конвенций, призванные заменить предыдущие. n В 1893 г. начала работу Гаагская конференция по международному частному праву, перед Первой мировой войной были подписаны несколько конвенций, имевших своим объектом область коллизии законов. Среди них - Конвенция об урегулировании законов в области заключения брака (1902 г.), Конвенция об урегулировании коллизий законов и о юрисдикции относительно разводов и судебного разлучения супругов (1902 г.) и Конвенция о коллизиях законов относительно личных и имущественных отношений супругов (1905 г.).!}

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-5.jpg" alt=">Historical and legal aspect of the international unification of private law n The movement continued in further"> Историко-правовой аспект международной унификации частного права n Движение продолжалось и в дальнейшем привело к принятию Гаагских конвенций о заключении брака и признании его недействительным (1976 г.), о признании развода и судебного разлучения супругов (1970 г.) и многих других международных соглашений в сфере частного права. n Процесс международной унификации, начавшись в конце XIX в. , к середине XX в. набрал обороты, и сегодня, в XXI в. , унификационное движение охватывает очень широкий круг вопросов частного права.!}

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-6.jpg" alt=">Theoretical analysis of the concept of unification of private international law">!}

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-7.jpg" alt="> LEGAL UNIFICATION IS ... "the process of developing uniform (unified) norms V"> ПРАВОВАЯ УНИФИКАЦИЯ – ЭТО… «процесс выработки единообразных (унифицированных) норм в международном частном праве» (А. И. Абдуллин) «создание в праве !} different states norms uniform in content through the use of international legal means and the influence of different legal systems on each other "(A. L. Makovsky)" cooperation of states aimed at creating, changing or terminating identical (uniform, unified) legal norms in the internal law of a certain circle states” (G.K. Dmitrieva) “movement towards harmonious interaction of various legal systems or as interaction national legal systems, which has already reached a certain degree of harmony" (in the broad sense) and "in relation to the unification exclusively civil law- creation of uniform norms of law "(in the narrow sense) (N. G. Doronina)

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-8.jpg" alt="> Legal unification is a law-making process aimed at creating various"> Правовая унификация - правотворческий процесс, направленный на создание во внутреннем праве различных государств норм, согласованных, не противоречащих другу, схожих между собой, причем содержание их может не быть идентичным (Сафронова С. С.)!}

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-9.jpg" alt=">Stages of international lawmaking 1. Knowledge of social factors, formation of international legal positions of states, intention of subjects"> Этапы международного правотворчества 1. Познание социальных факторов, формирование международно-правовой позиции государств, намерение субъектов вступить в правотворческий процесс 2. Согласование воль государств в отношении содержания правил поведения, принятие международного договора и, соответственно, международно-правовых обязательств государствами 3. Процесс признания государствами этого правила в качестве национально-правовой нормы!}

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-10.jpg" alt="> The concept of legal unification The semantic aspect of unification "Union" -"> Понятие правовой унификации Семантический аспект унификации «Union» - соединяю, «facere» - делать сочетаю = «делать сочетаемым» , то есть существующим вместе, одно наряду с другим, в согласовании!}

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-11.jpg" alt=">Legal unification is a law-making process aimed at creating uniform or uniform legal regulations"> Правовая унификация - это правотворческий процесс, направленный на создание единых или единообразных правовых норм не только с целью исключения противоречий и различий между национальными правовыми системами, либо !} international legal norms, but also with the aim of creating new norms that fill existing gaps in the regulation of certain special issues.

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-12.jpg" alt="> The ratio of the categories "unification of law" , "uniformization of law" and " harmonization of law” in"> Соотношение категорий «унификация права» , «униформизация права» и «гармонизация права» в широком смысле в узком смысле унификация гармонизация униформизация!}

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-13.jpg" alt=">Classification of International Unification and Harmonization of Private Law">!}

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-14.jpg" alt="> Types of unification of private international law 1. In"> Виды унификации международного частного права 1. В зависимости от способа правового регулирования частноправовых отношений, осложненных иностранным элементом: n унификация коллизионного права (Гаагская конвенция о коллизии законов, касающихся завещательных распоряжений, 1961 г. , Гаагская конвенция о праве, применимом к договорам !} international sale goods, 1986, etc.) n unification of substantive private law (UN Convention on Contracts for the International Sale of Goods 1980, Ottawa Convention on International Financial Leasing 1988) n mixed unification (Bern Convention for the Protection of Literary and works of art 1886, 1952 Universal Copyright Convention, etc.)

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-15.jpg" alt=">2. On the subject of regulation: unification of the law of obligations unification of ownership"> 2. По предмету регулирования: унификация обязательственного права унификация права собственности унификация !} intellectual property law unification of inheritance law unification family law unification transport law unification of labor law unification of civil procedural law, etc. 3. By subjects of unification: universal (Convention on limitation period in the international buying and selling goods 1974) regional (Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 1993) bilateral

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-16.jpg" alt="> 4. By legal way(method) of implementation: contractual"\u003e 4. According to the legal method (method) of implementation: contractual direct indirect (in an international treaty (participant states establish completed m / d contracts are obliged in their form to establish legal norms, to establish in their legislation ready for application of law, the content of which in the system of domestic law is defined in this treaty of the States Parties to the treaty) with > or

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-17.jpg" alt=">"> Виды гармонизации МЧП 1. По целям: Стихийная (в процессе различного взаимодействия государств: войны, колонизации, рецепции) Целенаправленная (заимствование опыта наиболее развитых правовых систем бывшими социалистическими странами, в т. ч. Россией) 2. По субъектам: Односторонняя (право одного государства адаптируется к праву другого государства) Взаимная (меры к сближению права принимаются на согласованной основе)!}

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-18.jpg" alt=">"> Виды гармонизации МЧП 3. По способу: осуществляемая исключительно с использованием национально-правовых средств (всегда односторонняя) осуществляемая с использованием международных средств, в том числе международно-правовых (в форме резолюций международных органов и организаций, в частности создание модельных или типовых законов: подготовленный ЮНСИТРАЛ Типовой закон о международном коммерческом арбитраже, Модельный !} civil Code, adopted by the Interparliamentary Assembly of the CIS Member States)

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-19.jpg" alt="> Criteria Unification Harmonization 1. Circle of Participants Universal, Unilateral or"> Критерий Унификация Гармонизация 1. Круг участников Универсальная, Односторонняя или региональная, взаимная двусторонняя 2. Форма Юридически Национально- и обязательный для международно- !} states - legal mechanisms, parties to the agreement are not secured by legal obligations of the states 3. Result Creation of the same Convergence of legal or uniform systems of different norms in the internal states, the law of different states elimination of contradictions

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-20.jpg" alt="> Criteria Unification Harmonization 4. Nature and place"> Критерий Унификация Гармонизация 4. Природа и место Унифицированные Развитие общих норм в национальной нормы в национального права правовой системе национальном праве выступают как специальные 5. Механизм Унифицированные Гармонизированные применения при материальные нормы не снимают регулировании снимают коллизионную международных коллизионный вопрос проблему частноправовых и применяются отношений непосредственно!}

Src="https://present5.com/presentation/3/3712409_154441850.pdf-img/3712409_154441850.pdf-21.jpg" alt=">Criterion Unification Harmonization 6. Value Most conducive As simpler"> Критерий Унификация Гармонизация 6. Значение Наиболее способствует Как более простой и сближению права, так как более «мягкий» создает одинаковые или процесс, не единообразные нормы в праве связывающий разных государств. Но государства практика свидетельствует, что жесткими государства неохотно юридическими связывают себя жесткими обязательствами, юридическими оказывается более обязательствами. Многие предпочтительной и принятые конвенции реально десятилетиями не вступают в способствует силу или действуют в сближению права незначительном круге государств!}

The remaining differences in the regulation of property relations predetermine dominant position conflict rules of national law. The international community is taking initiatives to unify conflict and substantive rules governing certain aspects of property rights, as well as to harmonize legislation.

Much work in this area is carried out by international organizations dealing with the problems of private international law. Among them, the most famous are the Hague Conferences on PIL, the International Symposium on the Bustamante Code, the World Trade Organization (WTO), the International Institute for the Unification of Private Law (UNIDROIT), the International Chamber of Commerce, the United Nations Conference on Trade and Development (UNCTAD), the UN Commission on Law international trade (UNCITRAL).

The unification of the norms of international private law involves the creation of uniform, acceptable for all countries, material and conflict of laws rules. In the sphere of real relations, there are no comprehensive and universal conventions unifying all aspects of property rights today. The unification of legislation is carried out in separate, the most significant areas of development of property relations and essentially reflects the ways of resolving the most pressing problems at the time of the development of international agreements.

The Hague Convention on the Law Applicable to the Transfer of Ownership in the International Sale of Goods (Material Movable Things), 1958, formulated independent conflict-of-law bindings to resolve the issue of transfer of ownership and the risk of accidental loss of things: property law underlies the definition of rights the person declaring the right of ownership of the thing sold, and the statute of obligations - in resolving questions about the moment of transfer of risk in contracts of sale.

The 1978 Hague Convention on the Law Applicable to Matrimonial Property Regimes contains conflict-of-law bindings to determine the law governing the matrimonial property regime regardless of the change in the spouses' nationality or place of their permanent residence.

The Hague Convention on the Law Applicable to the Inheritance of the Property of Deceased Persons, 1989 contains conflict of law rules on the form of disposition of property after death, the ability to dispose of property after death, common property spouses, property rights, interests and assets created or transferred otherwise than by inheritance, for example, under a joint property agreement with the right to reside, a pension or insurance contract, etc.

A special place in the unification of property rights is occupied by conventions dedicated to the regulation of legal relations related to cultural property. These are the Convention for the Protection of Cultural Property in the Event of Armed Conflict of May 14, 1954, the Convention for the Protection of the World Cultural and Natural Heritage of November 16, 1972, the European Convention on Offenses against Cultural Property of June 23, 1985, the UNIDROIT Convention on stolen or illegally exported cultural property of June 24, 1995, the Agreement of the CIS countries on the export and import of cultural property of September 28, 2001

The objectives of these international agreements in a broad sense are the protection of cultural heritage: the preservation of monuments of great historical importance for future generations; organization of cultural dialogue between peoples; investing in monuments as material values; development of a global art and antiques market; promotion of scientific dialogue between scientists from different countries; promotion of cultural exchange; counteraction to theft and illegal trade in cultural property.

The study of the institution of property is traditionally accompanied by an appeal to investment legislation. The main issue that worries a foreign investor is the safety of funds invested in a foreign economy. It is clear, therefore, that active investment is due to the presence of legal guarantees established by international agreements. At present, such guarantees are provided for by bilateral agreements concluded by states on the promotion and mutual protection of investments.<1>.

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<1>For more details on foreign investment, see paragraph 4.6 of this chapter.

The purpose of harmonization of law, including on property issues, is the convergence of national legal systems. The most effective harmonization is carried out within the framework of the activities of international organizations. This is the development of standard and model laws, standard regulations, general conditions of supply. Such documents can be used general rule if there is a reference to them in the contract, since they are not legal norms, but are only elements of a model contract.

Among the most demanded harmonizations today are the INCOTERMS Rules, which consider the moment of transfer of ownership and the moment of transfer of risk as independent categories and define them without using conflict of laws principles through unified substantive legal regulation. In this case, the moment of transfer of ownership is not taken into account at all; only the timing of the transfer of risk matters.

Harmonization within the European Union means the creation of common standards, while harmonization, as a rule, is not universal, but rather partial. Directives adopted by the EU regulate certain issues in relation to specific circumstances.

An example of such harmonization in relation to a very specific property right - fractional property rights was Directive N 2008/122 / EC, designed to "protect the interests of consumers with respect to certain aspects of timeshare, long-term distribution of products, sale and exchange" and adopted by the European Parliament in Strasbourg on October 22 2008

Another example is EU Directive 93/7/EEC of 1993 on the return of illegally exported cultural property from one EU member state to another.

A certain attempt to create a uniform regulation in matters of the choice of applicable law when considering, among other things, property disputes was the adoption of the Regulation of the European Parliament and of the Council of June 17, 2008 N 593/2008 on the law applicable to contractual obligations (“Rome I”). The regulation establishes on the territory of the member states of the European Community and the European Union uniform rules of "conflict of laws" - conflict of laws rules that determine the legislation of which state (not necessarily a member of the EU) should be applied if the legal relationship contains a foreign element and, accordingly, can be governed by the law of different countries . So, according to paragraph “c” of Art. 4 of the Regulations, a contract that has a real right to real estate or lease as a subject real estate, is governed by the law of the country where the immovable property is located; at the same time, a contract of lease of immovable property concluded for the purpose of temporary personal use for a period not exceeding six consecutive months shall be governed by the law of the country where the owner has his habitual residence, provided that the tenant is an individual who has his habitual residence in the same country<1>.

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<1>For more details on the Rome I EU Regulation, see vol. 1 of this textbook, p. 154.

However, despite the growing popularity of the processes of unification and harmonization of law, the activities of international organizations, private international law, including its central institution - the institution of property, remains a controversial, gaping and complex branch of law. Modern states are in no hurry to make fundamental changes to their legislation in order to bring it closer to the law of other states or international law.

Included in the area of internal exclusive jurisdiction of the state and there is no supranational "legislative" body that adopts legally binding "laws" for the internal law of states, the only way to create uniform norms is the cooperation of states.

Unification of law means the cooperation of states aimed at creating, changing or terminating identical (uniform, unified) legal norms in the internal law of a certain circle of states. In this capacity, unification is a kind of law-making process.

The main feature of unification:

it occurs with the use of international legal and national legal forms and mechanisms in two legal systems: in international law and in the internal law of the state.

The unification covered all branches of the internal law of states, including criminal (for example, complexes of legal norms for certain groups of crimes), criminal procedure (for example, the institution of extradition of criminals), administrative law(for example, uniform rules governing customs relations), etc. This process has penetrated even into the holy of holies of internal law - into constitutional law(for example, the human rights and freedoms enshrined in the constitutions of many states correspond to generally recognized international legal standards). But the unification process achieved the most tangible results in private international law, which is explained by its specificity.

Being part of the internal law of the state, private international law is extraverted in nature. Its object is relations of an international nature, i.e. going beyond the boundaries of one state: private law relations complicated by a foreign element. The presence of a foreign element leads to the fact that international private law regulates relations that, by their composition, lie in the legal field of two or more states. Their significance in the life of every state gives rise to an objective need for their uniform legal regulation.

There is another reason that contributes to the rather high need for unification in private international law: national law is often unable to regulate relations with international characteristics(This is especially evident in the economic sphere).

Features of the legal mechanism for the unification of law

As already mentioned, the process of unification of law takes place in two legal systems both in international law and national law.

Stages of the unification process:

agreement between states regarding the uniform regulation of certain relations, drawn up by an international treaty, which contains legal norms intended to regulate these relations;
perception international legal norms of the national law of states.

Thus, the unification of law as a law-making process has two stages (two stages).

At the first stage, a set of relevant legal norms is created in the form of an international treaty, and states assume international legal obligations to ensure their application. The adoption of an international treaty and, accordingly, international legal obligations by states completes the first stage of unification. Since the norms contained in the treaties are not yet unified, but are intended to become such, they can be called unifying norms. By their nature, these are international legal norms that are obligatory only for the states - parties to the relevant treaty. It is clear that the whole process of creating unifying legal norms takes place within the framework of international law through its own mechanisms.

Perception of international legal norms by the national law of states (transformation, or national implementation) - the second stage of the unification of law. This is a purely national matter, and it is implemented through national legal mechanisms. As a result, unified norms appear in the national law of different states, i.e. identical, completely identical in content. These norms have the force of national law, and include the corresponding national legal measures for their enforcement. As such, these norms are legally binding on all subjects of national law, both participants in private law relations and law enforcement agencies.

The process of perception is provided by national legal mechanisms. In the law of different states they are different, but have many common features. IN Russian Federation legal basis this process is provided for in paragraph 4 of Art. 15 of the Constitution: "... International treaties of the Russian Federation are an integral part of its legal system." The Constitution establishes the general principle of operation of international treaties in Russia as part of its legal system. Therefore, this rule can be considered as a general or general transformational norm, according to which the norms of international treaties in which Russia participates or in which it will participate are given national legal force (the same principle is repeated in special private law laws, for example, in Article 7 Civil Code of the Russian Federation).

Consent to be bound by a treaty may be expressed in the form of either federal law(on ratification, on accession), or legal acts of the President or the Government (for example, a government decree on accession). These legal acts and are those legal forms, in which the norms of international treaties are introduced into the Russian legal system. They also determine the place of unified norms in the hierarchy. Russian law: if an international treaty is introduced in the form of a federal law, then its norms will have the legal force of a federal law; if the contract is introduced by a by-law, then its norms will have legal force this by-law.

Only when the norms contained in an international treaty become part of the national (internal) law of states, we can talk about the unification of law as a complete process.: in the internal law of the States parties to the treaty, the same legal norms appeared. In other words, the norms of an international treaty must be "sanctioned" by the state for their application in the national legal sphere, that is, they must be given the legal force of national law. Only in this case they will be able to regulate relations between subjects of national law.

Thus, the unification of law has two independent, but interrelated stages:

the first takes place in the international legal sphere and ends with the adoption of international legal unifying norms;
the second takes place in the national legal sphere and ends with the adoption of national legal unified norms.

Accordingly, both stages are mediated by those legal forms that are inherent in two legal systems:

international legal treaty;
national legal acts (laws and by-laws).

Types of unification

There are several classifications of unification, depending on the criterion underlying it.

1) According to the method of legal regulation of private law relations complicated by a foreign element:

unification of conflict law;
unification of substantive private law;
mixed, when one international treaty provides for the unification of both conflict of laws and substantive norms.

2) Depending on the type of private law relations(subject criterion) complexes of unified norms (conflict and material) are distinguished, designed to regulate relations that are the subject of:

industries;
sub-sectors;
institutions of private law.

3) By subjects of international treaties:

universal (multilateral universal treaties);
regional (regional agreements);
bilateral (bilateral agreements);

The highest degree of unification of law, especially material law, has been achieved in the field of foreign economic relations. Mainly unified legal norms governing:

contract of international sale (Vienna Convention 1980, New York Convention on Limitation of Actions in International Sale and Purchase of 1974, Convention on the Law Applicable to Contracts for the International Sale of Goods, 1986, etc.);
new species contractual obligations(Ottawa conventions on international financial leasing and international factoring, 1988);
international payments, international transportation.

Great progress has been made in unifying the legal norms governing intellectual property and international commercial arbitration.

Against, in areas such as family and marriage relations, hereditary, which are closely related to national historical, cultural, religious characteristics, the success of unification is insignificant.

A special position in the classification series of unification is occupied by agreements on the provision of legal assistance. They contain unified rules on civil procedure (cognizance, execution of court orders, recognition and execution judgments etc.), which means that they can be included in the classification according to the subject criterion. However, such agreements often contain unified conflict of law rules for a wide range of private law relations and separate substantive private law rules. Therefore, they can be attributed to mixed unification in the broad sense of the word, including both the first and second classifications.

Universal unification is intended for all states, respectively, international treaties that mediate such unification are open to general participation. For example, the Vienna Convention of 1980 is open for accession by all states (Article 91).

Regional (or local)- this is a unification carried out within a limited circle of states (for example, states of one geographical area or within the framework of integration formations).

The results of regional and bilateral unification are, as a rule, more significant. Thus, Russia, with rare exceptions, does not take part in universal treaties aimed at unifying conflict of laws rules in various areas of private law relations, mainly developed by the Hague Conference on Private International Law. It should be noted that these treaties have not received wide distribution at all and they can be called universal only formally, based on their purpose for all states. The real result of their action is very far from "universality". At the same time, Russia is a party to a large number of bilateral treaties on legal assistance. As a result, our country has bilaterally unified conflict rules for a wide range of private law relations, which creates more favorable conditions for cooperation between the respective states.

Features of the application of unified norms

Uniform norms in general and private international law in particular act as national legal norms. However, neither the conflict of laws unified rules, nor the substantive private law unified rules do not cancel similar norms of domestic law, but operate in parallel with them. At the same time, they do not merge with the norms of internal law into a single array, but retain their isolation in it, due to their contractual origin.

The connection of unified norms with the international treaty under which they were created gives rise to a number of features of their application. An international treaty, as a rule, defines:

the spatial scope of the implementation of unified norms;
the subject area of application of the unified rules, which differs from the subject area of similar rules of domestic law;
time frame for the operation of unified norms.

In addition, the unified rules must be interpreted in the light of the objectives, principles and content of the relevant international treaty (often this provision is included in the text of the treaty itself);

The purpose of any unifying international treaty is to ensure uniform regulation of a certain type of cross-border private law relations. To achieve it, it is not enough to have identical (unified) conflict or substantive legal norms. A uniform practice of their application is needed, which implies a uniform interpretation. Therefore, many treaties directly interpret the terms and concepts included in the unified legal norms, establishing their content. Such an interpretation is mandatory in the national legal practice of the contracting states, which contributes to the uniformity of the application of the unified rules.

Contractual origin also determines the time frame for the operation of unified norms. They acquire legal force in the territory of a state party to the treaty not earlier than the moment when the treaty enters into force. Even if the state has ratified the treaty (or otherwise expressed its consent to be bound by it), but it has not entered into force (in particular, when the treaty has not received the required number of ratifications), the uniform rules do not apply. Termination of the contract leads to the termination of the relevant unified rules. A unilateral withdrawal of a state from a treaty also terminates the operation of the corresponding unified norms on the territory of that state.

rights - is the creation of the same, uniform, ie. unified norms in the internal law of different states. Since the law is within the exclusive domestic jurisdiction of the state and there is no supranational "legislative" body that makes legally binding "laws" for the internal law of states, the only way to create uniform norms is the cooperation of states. From here unification of law means the cooperation of states aimed at creating, changing or terminating identical (uniform, unified) legal norms in the internal law of a certain circle of states. In this capacity, unification is a kind of law-making process. Its main feature is that it takes place in two legal systems - in international law and in the internal law of the state with the use of international legal and national legal forms and mechanisms.

The unification covered all branches of the internal law of states, including criminal (for example, complexes of legal norms for certain groups of crimes), criminal procedure (for example, the institution of extradition of criminals), administrative law (for example, uniform rules governing customs relations), etc. . This process has penetrated even into the holy of holies of internal law - into constitutional law (for example, human rights and freedoms enshrined in the constitutions of many states correspond to generally recognized international legal standards). But the unification process achieved the most tangible results in private international law, which is explained by its specificity.

Being part of the internal law of the state, it is by its nature extraverted. Its object is relations of an international nature, i.e. going beyond the boundaries of one state: private law relations complicated by a foreign element. The presence of a foreign element leads to the fact that international private law regulates relations that, by their composition, lie in the legal field of two or more states. Their significance in the life of every state gives rise to an objective need for their uniform legal regulation.

There is another reason that contributes to the rather high effectiveness of unification in private international law. National law has often proved unable to regulate relations with international characteristics. This was especially evident in the economic sphere. In the future, we will only talk about unification in private international law.

Features of the legal mechanism for the unification of law

As already mentioned, the process of unification of law takes place in two legal systems - both in international law and in national law. At the first stage, an agreement is reached between states on the uniform regulation of certain relations, drawn up by an international treaty, which contains legal norms designed to regulate these relations. The achievement of an agreement and the adoption of an agreement with the text of the relevant norms does not mean that the unification of law has taken place.

Any international treaty, regardless of what specific issue it is devoted to, regulates relations between states and obliges only the participating states. This applies equally to the treaty aimed at the unification of law. The Vienna Convention of 1980 regulates not the contract of sale, but relations between states regarding the uniform regulation of the sale, it obliges the states to ensure the application of the relevant legal norms provided for by the Convention. Only when the norms contained in an international treaty become part of the national (internal) law of states, can we talk about the unification of law as a complete process: identical legal norms appeared in the internal law of the states parties to the treaty.

In other words, the norms of an international treaty must be "sanctioned" by the state for their application in the national legal sphere, i.e. they should be given legal force national law. Only in this case they will be able to regulate relations between subjects of national law. The perception of international legal norms by the national law of states is the second stage in the unification of law. This is a purely national matter, and it is implemented through national legal mechanisms.

Thus, the unification of law as a law-making process has two stages (two stages). At the first stage, a set of relevant legal norms is created in the form of an international treaty, and states assume international legal obligations to ensure their application. It is difficult to overestimate the importance of this stage. Actually at this stage uniform norms are created. This process is time-consuming, complex and often lengthy. It is accompanied by a search for compromise solutions in order to harmonize the positions of different states, which are influenced not only by the peculiarities of their own legal systems, but also by political and other interests. Sometimes the texts of treaties are agreed upon for decades. For example, more than 20 years have passed since the UN International Law Commission began working on a draft convention on jurisdictional immunities in 1977, and the work is still ongoing.

The adoption of an international treaty and, accordingly, international legal obligations by states completes the first stage of unification. Since the norms contained in the treaties are not yet unified, but are intended to become so, they can be called unifying norms. By their nature, these are international legal norms that are obligatory only for the states - parties to the relevant treaty. It is clear that the whole process of creating unifying legal norms takes place within the framework of international law with the help of its inherent mechanisms.

The second stage is no less important. It is connected with the perception of international legal norms by national law. As a result, in the national law of different states appear unified norms, i.e. identical, completely identical in content. These norms have the force of national law, and include the corresponding national legal measures for their enforcement. As such, these norms are legally binding on all subjects of national law, both participants in private law relations and law enforcement agencies.

The perception of international legal norms by national law is called either transformation, or national implementation. The process of perception is provided by national legal mechanisms. In the law of different states they are different, but have many common features. In the Russian Federation, the legal basis for this process is provided for in paragraph 4 of Art. 15 of the Constitution: "... International treaties of the Russian Federation are integral part its legal system". The Constitution establishes the general principle of the operation of international treaties in Russia as part of its legal system. Therefore, this rule can be considered as a general or general transformational norm, according to which the norms of international treaties in which Russia participates or in which it will participate, national legal force is given (the same principle is repeated in special private law laws, for example, in Article 7 of the Civil Code of the Russian Federation).

The constitutional rule is specified in other laws and, above all, in the Federal Law on International Treaties of 1995, which provides legal procedures, by virtue of which the agreement becomes binding on Russia [Abdullin A.I. Formation and development of the science of private international law in Russia: the problem of understanding the nature of private international law in the works of Russian jurists of the 19th century // Journal of private international law. 1996. No. 3 (13)]. Consent to be bound by the treaty can be expressed in the form of either a federal law (on ratification, on accession), or legal acts of the President or the Government (for example, a government decree on accession). These legal acts are the legal forms in which the norms of international treaties are introduced into the Russian legal system [Alekseev S.S. General theory of law. M., 1981. T. 1]. They also determine the place of unified norms in the hierarchy of Russian law: if an international treaty is introduced in the form of a federal law, then its norms will have the legal force of a federal law; if the contract is entered by-law, then its norms will have the legal force of this by-law.

Thus, the unification of law has two independent, but interrelated stages: the first takes place in the international legal sphere and ends adoption of international legal unifying norms; the second takes place in the national legal sphere and ends with the adoption national legal unified norms. Accordingly, both stages are mediated by those legal forms that are inherent in two legal systems: firstly, an international legal treaty, and secondly, national legal acts (laws and by-laws).

Concluding the consideration of the issue of features legal mechanism unification of law, one more feature should be emphasized modern process unification. It has a pronounced institutional character: the first stage of unification is predominantly carried out within the framework of international organizations. This feature was especially evident in the second half of the 20th century, which is a reflection general trend the growing role of international organizations.

There are international organizations specializing in the unification of law: the Hague Conference on Private International Law, the Rome Institute for the Unification of Private Law, the UN Commission on International Trade Law (see Chapter 3 of this textbook about these organizations). More often, international organizations that ensure cooperation between states in specific areas are also involved in the unification of law in these areas, for example, the International Maritime Organization (IMO), the International Civil Aviation Organization (ICAO), the International Labor Organization (ILO), the World Organization intellectual property(WIPO) and others. The use of structures and mechanisms of intergovernmental organizations facilitates and accelerates the process of preparing and adopting international treaties aimed at unifying law.

Types of unification

There are several classifications of unification, depending on the criterion underlying it.

The first classification is associated with the method of legal regulation private law relations complicated by a foreign element. Two methods of regulation - conflict of law and substantive law - correspond to the unification of conflict of laws and the unification of substantive private law. According to this criterion, a third type of unification can be distinguished - mixed when one international treaty provides for the unification of both conflict and substantive rules.

Examples of the unification of conflict rules are the Geneva Convention on the Resolution of Certain Conflicts of Laws on Promissory Notes and Bills of Exchange of 1930, the Hague Convention on the Law Applicable to maintenance obligations, 1956, The Hague Convention on Conflict of Laws Relating to Testamentary Dispositions, 1961, The Hague Convention on the Law Applicable to Contracts for the International Sale of Goods, 1986, etc. (most of the conventions adopted under the Hague conference on private international law). Russia participates only in the bill of exchange convention.

Examples of unification of substantive private law norms are the Geneva Convention on a Uniform Law on Promissory Notes and Bills of Exchange of 1930, the UN Convention on Contracts for the International Sale of Goods of 1980, the Ottawa Convention on International Financial Leasing of 1988 (Russia participates in all three).

As examples of mixed unification, copyright conventions can be cited: the Berne Convention for the Protection of Literary and Artistic Works of 1886, the World Copyright Convention of 1952, etc. (Russia participates in them).

The second classification is based on subject criteria, depending on what type of private law relations includes unified norms. According to this criterion, complexes of unified norms (conflict and substantive) are distinguished, designed to regulate relations that are the subject of industries, sub-sectors, institutions of private law. For example, the unification of the law of obligations, property law, intellectual property law, inheritance, family, transport law, etc. This also includes the unification of civil procedural law. According to the subject criterion, it is most convenient to show the real state of the unification of private international law, its successes and, on the contrary, the lag in some areas. The content of unification according to the subject criterion is described in detail in the relevant chapters of the textbook.

The highest degree of unification of law, especially material law, has been achieved in the field of foreign economic relations. Mainly unified legal norms governing: the contract for the international sale of goods (Vienna Convention 1980, the New York Convention on the limitation period in the international sale of 1974, the Convention on the Law Applicable to Contracts for the International Sale of Goods, 1986 etc.); new types of contractual obligations (Ottawa conventions on international financial leasing and international factoring, 1988); international payments, international transportation. Great progress has been made in unifying the legal norms governing intellectual property and international commercial arbitration. On the contrary, in such areas as family and marriage relations, hereditary, which are closely connected with national historical, cultural, religious characteristics, the progress of unification is insignificant.

A special position in the classification series of unification is occupied by agreements on the provision of legal assistance. They contain unified norms on civil procedure (cognizance, execution of court orders, recognition and execution of court decisions, etc.), and therefore they can be included in the classification according to the subject criterion. However, such agreements often contain unified conflict of law rules for a wide range of private law relations and separate substantive private law rules. Therefore, they can be attributed to mixed unification in the broad sense of the word, including both the first and second classifications.

The third classification is related to the classification of international treaties, primarily based on their subject composition. By subjects, international treaties are divided into multilateral (including universal and regional) and bilateral. Depending on this, universal, regional, bilateral unification is distinguished.

Universal unification is intended for all states, respectively, international treaties that mediate such unification are open to general participation. For example, the Vienna Convention of 1980 is open for accession by all states (Article 91). Regional(or local) is a unification carried out within a limited circle of states (for example, states of one geographical area or within the framework of integration formations).

Russia takes an active part in the regional unification carried out within the framework of the CIS [Alekseev S.S. General theory of law. M., 1982. T. 2]. On September 15, 1992, the Inter-Parliamentary Assembly adopted a special document - the Main Directions for the Approximation of the National Legislations of the States Members of the Commonwealth. It identifies a wide range of areas where convergence is needed: economic ties, transport, status of business entities, labor rights, investments, patent law etc. [Aleksidze L.A. Some questions of the theory of international law. Imperative norms JUS COGENS. Tbilisi, 1982] Let us note the most important treaties adopted by the CIS member states in the field of unification of private law. This is the Agreement on the General Conditions for the Supply of Goods between Organizations of the CIS Member States of 1992, the Agreement on the Procedure for Settling Disputes Related to the Implementation economic activity 1992, Agreement on the procedure for the mutual execution of decisions of arbitration, economic and economic courts in the territories of the CIS member states 1998, Agreement on cooperation in the field of investment activity 1993, Investor Protection Agreement 1997, Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Matters 1993, Eurasian Patent Convention 1994

Significant results have been achieved by the unification of law carried out between the countries of Latin America. First of all, this is the Bustamante Code of 1928, which was discussed in Ch. 3 of this textbook. Until now, this agreement remains an unsurpassed unifying act in the field of conflict of laws. In addition to the range of states that are legal parties to the Code, its provisions are also applied in other Latin American states by virtue of "reasonableness and expediency". Since 1975, conferences on private international law have been held every five years, at which more than 20 conventions have been adopted, unifying both conflict of laws, and substantive, and procedural rules. At a conference in Mexico City in 1994, the Inter-American Convention on the Law Applicable to International Contracts was adopted, which has taken an important place in the system of conflict-of-laws regulation of obligations under international commercial contracts.

The concept and system of international private law
- The concept and subject of private international law
- The place of international private law in the system of law, its basic principles
- Normative structure of private international law
- Methods of regulation in private international law
- Unification and harmonization of norms of private international law; the role of international organizations in its development
Sources of private international law
- The concept and specifics of the sources of international private law
- National law as a source of international private law
- International law as a source of private international law
- Judicial and Arbitration Practice as a Source of International Private Law
- Doctrine of law, analogy of law and law, general principles the rights of civilized peoples as a source of private international law
- Autonomy of the will of the subjects of legal relations as a source of private international law
Conflict law - the central part and subsystem of private international law
- Basic principles of conflict of laws
- Collision norm, its structure and features
- Types of conflict rules
- Interlocal, interpersonal and intertemporal law
  - interpersonal law
  - Intertemporal law
- Main types of collision bindings
  - Law of nationality (personal law) of a legal entity
  - The law of the location of a thing
  - Law of the country of the seller
  - Law of the place of the act
  - Law of place of offense
  - Debt currency law
  - court law
  - Law, elected by the parties legal relations (autonomy of will, right of choice of law by the parties, clause on applicable law)
- Contemporary Issues conflict law
- Qualification of the conflict rule, its interpretation and application
- Limits of application and effect of conflict rules
- The theory of references in private international law
- Establishing the content of foreign law
Subjects of private international law
- Position individuals in private international law; determination of their civil legal capacity
- Civil capacity of natural persons in private international law
- Guardianship and guardianship in private international law
- Legal status legal entities in private international law
- Specificity legal status multinational companies
- Legal status foreign legal entities in the Russian Federation and Russian legal entities abroad
- The legal status of the state as a subject of private international law
- The main types of civil legal relations with the participation of the state
- International Intergovernmental Organizations as Subjects of Private International Law
Property law in private international law
- Conflict of ownership issues
- Legal regulation of foreign investments
- Legal status of foreign investments in free economic zones
- Legal status of property of the Russian Federation and Russian individuals abroad
Law of foreign economic transactions
- General provisions
- Conflict issues of foreign economic transactions
- Scope of the obligation status for foreign economic transactions
- Form and procedure for signing transactions
- International legal unification of the law of foreign economic transactions
- International trade custom
- The "lex mercatoria" theory and non-state regulation of foreign economic transactions
- Contract of sale
- Obligations of the parties in the contract for the international sale of goods
- Contract for the exclusive sale of goods
- franchise agreement
- Leasing agreement
International transport law
- General provisions of international transport law
- International rail transport
- Legal relations in the field of international rail transport
- International road transport
- Legal relations in the field of international road transport
- International air transportation
- Legal relations in the field of international air transportation
- Air transportation on attracted vessels
- International shipping
- Relationships associated with the risk of navigation
- Legislation of the Russian Federation in the field of merchant shipping and navigation
International private monetary law
- The concept of "International private monetary law". financial leasing
- Factoring agreement
- International payments, currency and credit relations
  - International payments
- Forms of international payments
- International settlements using a bill of exchange
- International payments using a check
- Legal specifics of monetary obligations
Intellectual Property in Private International Law
- The concept and features of intellectual property
- Specificity copyright in private international law
- International copyright protection and related rights
- Law Specifics industrial property in private international law
- International and national regulation of invention law
Marriage and family relations in private international law (international family law)
- The main problems of marriage and family relations with a foreign element
- Marriages
- Divorce
- Legal relationship between spouses
- Legal relationship between parents and children
- Adoption (adoption), custody and guardianship of children
Inheritance legal relations in private international law (international inheritance law)
- The main problems in the field of inheritance relations complicated by a foreign element
- Legal regulation of inheritance relations with a foreign element
- inheritance rights foreigners in the Russian Federation and Russian citizens abroad
- The mode of "escheat" property in private international law
International private labor law
- Conflict problems of international labor relations
- Labor Relations with a foreign element according to the legislation of the Russian Federation
- Accidents at work and "crippled" cases
Obligations from torts in private international law (international tort law)
- The main problems of obligations from offenses (torts)
- Foreign doctrine and practice of tort obligations
- Tort Liabilities with a Foreign Element in the Russian Federation
- Uniform international legal norms of tort obligations
International civil process
- The concept of international civil procedure
- The principle of "law of the court" in international civil process
  - The "law of the court" principle in international civil litigation - page 2
- National legislation as a source of international civil procedure
- International treaty as a source of international civil process
- Auxiliary sources of international civil process
  - Auxiliary sources of international civil procedure - page 2
Litigation of civil cases with a foreign element
- General principles of the procedural provision foreign persons V civil litigation
- civil procedure legal capacity foreign persons
  - civil procedural law and legal capacity of foreign persons - page 2
- Legal status foreign state in international civil proceedings
- International jurisdiction
- International jurisdiction in national law
  - International jurisdiction in national law - page 2
- International jurisdiction in international agreements
- The presence of a process in the same case between the same parties in a foreign court as a basis for leaving the claim without consideration
- Establishing the content of foreign law, its application and interpretation
  - Establishing the content of foreign law, its application and interpretation - page 2
- Judicial Evidence in International Civil Procedure
- Execution of foreign letters of request in national law
- Execution of foreign letters of request in accordance with international treaties
- Recognition and enforcement of foreign judgments
- recognition and enforcement foreign judgments in national law
  - Recognition and enforcement of foreign judgments in national law - page 2
- Recognition and enforcement of foreign judgments in international agreements
- Notary actions in private international law and international civil procedure
International commercial arbitration
- Legal Nature of International Commercial Arbitration
- Types of International Commercial Arbitration
- Law Applicable by Arbitration
- Arbitration Agreement
- The nature, form and content of the arbitration agreement; its procedural and legal consequences
  - The nature, form and content of the arbitration agreement; its procedural and legal consequences - page 2
- Recognition and execution of foreign arbitral awards
- International commercial arbitration abroad
- International commercial arbitration in the Russian Federation
- International legal basis for the activities of arbitration courts
- Consideration of investment disputes

Unification and harmonization of norms of private international law; the role of international organizations in its development

The paradox and duality of PIL (noted by all scientists) are manifested in the fact that this branch of national law is very closely connected with public international law. The doctrine even expressed the point of view that PIL has not a domestic, but an international nature and is part of international law in the broad sense of the word.

This concept is not confirmed either in practice or in legislation, however, it must be taken into account that international private law is indeed a very peculiar phenomenon - it is a polysystemic legal complex that combines both national and international norms.

The polysystemic and complex nature of PIL is due to the specifics of its subject of regulation - private law relations arising in the field of international communication. The specifics of the subject of regulation is one of the main reasons for the growing role of international substantive law in the structure of this branch of law.

There are a large number of international organizations dealing with PIL problems in the world - the Hague Conferences on PIL, the International Symposium on the Bustamante Code, the World Trade Organization (WTO), the International Institute for the Unification of Private Law (UNIDROIT), the International Chamber of Commerce, the UN Conference on Trade and development (UNK-TAD), the United Nations Commission on International Trade Law (UN-CITRAL), etc.

These organizations are doing a lot of work on the unification and harmonization of legislation in the field of PIL. Within the framework of these organizations, a huge number of international treaties have been concluded that regulate various aspects of interstate cooperation on private law issues. Considering the difficulties of applying the internal law of individual states to regulate foreign economic relations and at the same time the need to preserve the conflict of laws method of regulation, most international conventions in the field of PIL have a complex normative character- are a combination of unified and material, and conflict of laws.

In accordance with the provisions of these conventions, unified substantive norms have a dominant position, and the conflict method plays the role of a general subsidiary (additional) beginning and a means of filling gaps in law.

The unification of substantive legal norms occupies a special place in the activities of international organizations. The unification of law is the process of creating uniform, identical norms of national law of different states through the conclusion of international treaties. Any international treaty establishes the obligations of states to bring their internal character in line with the norms of this treaty.

The main feature of the unification of law is that it occurs simultaneously in two different legal systems - in international law (the conclusion of an international treaty) and in national law (the implementation of the norms of this treaty into domestic law). The unification of law can also be defined as cooperation aimed at creating an international mechanism for regulating relations in the field of common interests states. The unification of law is a kind of law-making process that takes place mainly within the framework of international organizations.

The results of unification are most tangible in the field of PIL, since only this branch of national law affects the interests of two or more states. Unification affects almost all branches and institutions of private international law. Its main results are the development of uniform conflict of laws rules (The Hague Convention on the Law Applicable to the Contract for the International Sale of Goods, 1986), uniform substantive rules (Ottawa Conventions on International Factoring and International Financial Leasing, 1988), polysystems of other regulatory complexes (combining both conflict and substantive rules - the Berne Conventions on International Carriage by Rail, 1980).

Harmonization of law is a process of convergence of national legal systems, reduction and elimination of differences between them. Harmonization of law and its unification are interrelated phenomena, but harmonization is a broader concept, since the convergence of national legal systems is also carried out outside the unification of law. The main difference between harmonization and unification is the absence of international obligations (international contractual forms) in the process of harmonization.

The absence of contractual forms predetermines the specifics of the entire process of harmonization of character as a whole. This process can be both spontaneous and purposeful. The essence of spontaneous harmonization is that in the process of cooperation and interaction between states, similar or even identical legal regulation appears in their legal systems (for example, the reception of Roman law in Europe, Asia, Latin America). Purposeful harmonization - a conscious perception by one state of the legal achievements of other states (the action of the FGK of 1804 in Belgium; the use of the provisions of the FGK and GGU in the Civil Code of the Russian Federation).

Harmonization of law can be both unilateral and mutual. Unilateral harmonization takes place when the law of one state adapts to the law of another state. Such harmonization is always carried out exclusively on a national legal basis - the state introduces the norms of foreign law into its national law. Mutual harmonization can be defined as an agreed set of measures aimed at bringing the laws of individual states closer together.

The process of mutual harmonization is mainly carried out with the help of the mechanism of international organizations. Use of international organizations - characteristic modern process of mutual harmonization. The main form of this process is the development of model and model laws, model regulations, general terms of delivery (UNCIT-RAL Model Law on International Commercial Arbitration, 1985).

Certain areas of relations with a foreign element require the application special methods regulation. This, first of all, refers to the sphere of foreign economic activity. Interests of international trade, process international division labor, the internationalization of economic life gave rise to a special instrument of legal regulation - "lex mercatoria" (semantic translation - international commercial law, transnational trade law, the law of the international community of merchants, etc.).

International commercial law is a relatively new, specific institution of modern international law. It is customary to define it as "soft, flexible law", a system of non-state regulation of foreign trade activities. Regulatory Framework this system - resolutions-recommendations of international organizations. The specificity of the system of non-state regulation of foreign trade relations lies primarily in the fact that the participation of states in this process is limited. The development and application of international commercial law in international trade takes place within the framework of specialized economic international organizations.

Despite the large-scale processes of unification and harmonization of law, the activities of international organizations, the functioning of international commercial PIL rights remains the most controversial, gaping and complex branch of law. Even in modern world states are reluctant to make fundamental changes in their legislation in order to bring it closer to the law of other states or to international law.

Of particular difficulty are private law relations with the participation of states (compensation agreements - concession agreements, production sharing agreements, service agreements, relations with foreign investors). In order to eliminate the most acute contradictions in the development of foreign economic activity, a whole system of international law enforcement bodies has been created to resolve disputes in this area - the International Center for the Settlement of Investment Disputes (ICSID), the Multilateral Investment Guarantee Agency (MIGA), Arbitration court at the International Chamber of Commerce.