Private international law (MPE) is a unified system, the links of which are the norms of the domestic legislation of a particular state, agreements and customs of international importance, designed to regulate civil, legal, labor and other private relations in which a foreign element takes place. At the same time, both legal entities and individuals can be a party to private legal relations. What underlies and how are such relations regulated?
Sources of MCHP: concept and types
In legal science, the Sources of international law are forms of expression and consolidation of international legal norms, which are specific. It is worth noting that the specific gravity of a particular source of MPP in different countries is not the same.
It is worth noting that in the same state, norms taken from different sources may apply. It all depends on the type of legal relationship.
Classification of sources of international law
Depending on the formal meaning:
- Material sources of MCHP consist in the features of society, which are characterized by a material attribute. These are the objective needs of the development of the public, living conditions, the economic component, and so on.
- Formal sources are a versatile reflection of the rule of law.
Depending on the selected dispute resolution tool, the types of sources of MCHP are divided into:
- The main ones. These include agreements of international importance, customs of an international legal nature.
- Auxiliary. They include documents of various nature (declarations, statements, resolutions, proclamations, and others), which are signed by members of international organizations, decisions of the judiciary, and statements by premium experts in the field of international legal relations. The latter are referred to as doctrines.
General principles and norms of international law
The formulation of “general principles” is ambiguous. Some well-known scientists argue that the general principles include the postulates of a legal orientation of the traditional type, which are still known to Roman law. A good example is the assertion that the law is not retroactive, that a specific law has advantages over the general statute, agreements must be implemented, and so on. Other scholars identify common norms with the fundamental principles of MP.
International agreements
International agreement - an agreement between two or more states among themselves, concluded in writing and subject to regulation by international law.
An international treaty is a special type of legal act that fixes the rights, requirements and obligations of the main subjects of international law in relation to each other. The mission of such an agreement is the regulation of relations arising between the subjects of the private emergency, and provision (both voluntarily and forcibly in case of failure to fulfill certain points).
An international treaty is the main source of PPM. An agreement can be called as anything you like, starting from the usual “agreement”, “contract” and ending with “convention”, “treatise”, etc. Which name is suitable for an international agreement is determined by its parties, focusing solely on personal preferences.
Features of the international agreement
Peculiarities of the sources of MChP of the considered type consist in their legal obligation, which does not lose its force, no matter what form of agreement the participants choose and no matter what it is called. Failure to comply with the provisions of the contract entails liability.
Contract forms
What forms do the sources of MPP represent? The concept and types we consider below. So, agreements between participants in interstate relations can be concluded in written and oral forms. The latter is used in extremely rare cases, and in the territory of the Russian Federation, one might say, it is not practiced at all. Oral agreements are also called gentlemen's. They are not international agreements, moreover, they do not imply a legal nature, since they are a set of moral obligations.
In the Russian state, the practice of drafting international treaties is exclusively in writing.
Classification
International agreements have several classification features.
Depending on the object of regulation, the sources of MCHP are divided into:
- economic;
- political;
- military;
- others.
Depending on the number of parties, sources of MCHP are:
Depending on the validity period:
- urgent (subscribe for a certain period of time);
- perpetual.
Depending on the available option of joining as a participant, the sources of MCHP are divided into:
- open (agreements to which a third state has the opportunity to become a party);
- closed (agreements whose participants must meet the prescribed requirements and criteria).
In content and structuring:
- classical type (consist of a preamble, a climax and a concluding part).
- simplified (agreements that are concluded through the exchange of notes and other various agreements fixed in the relevant acts).
Domestic sources of MCHP: legislative framework
The law is above all! In the overwhelming majority of countries, the Russian national legislation is referred to the rules of private international law. As a source of MCHP, it includes regulatory legal acts that act as a key to resolving issues requiring legislative settlement.
Issues related to the legal sphere under consideration are no exception. When signing one or another special law in the field of private law, its codification is carried out. A wide variety of emerging regulatory papers suggests that the coding process mechanism is characterized by different approaches.
On the territory of Russia, there is no unified system of codification of norms of MPP at the national level. National Sources of Emergency Measures in the Russian Federation contain provisions on private law in complex, sectoral, specific regulatory legal papers, which may be at any level and have any origin. The leading role belongs to the Constitution of the Russian Federation, in force since 1993. It clearly defines the structuring of the “public policy” category. In addition, the Constitution is a key tool in establishing common limits for the operation of legislative norms of foreign origin and by-laws in Russia.
Russian national legislation, as a source of MCHP, contains many regulatory documents that prescribe norms of MCHP of a collision type. The most important of them is the Civil Code of the Russian Federation. The adoption of its individual parts dates back to 1994, 1996 and 2001, respectively.
An impressive number of conflict standards are also included in the Family Code of Russia, which has been in force since the end of 1995. International legal sources of MPP include this document.
Private international law in Russia is also governed by laws and regulations that establish the rules of procedure for carrying out foreign economic or investment activities where foreign participation takes place. Typically, the considered sources of MCHP are characterized by complexity, and their content defines the behavioral norms inherent in one or another legal industry - administrative, financial, customs, labor, civil and so on.
It is worth noting the following laws:
- “On Foreign Investment Flows in Russia,” adopted July 9, 1999
- “On investment activity in the Russian Federation, which is carried out in the form of capital investments”, effective February 25, 1999.
- "On the chambers of commerce of the Russian Federation" from 1993
- “On state regulation of foreign trade activities” from 1995.
- “On the leasing procedure” from 1998
- “On measures aimed at protecting the implementation of external merchandise sales” of 1998.
- “On Export Control” of 1999
Sources of MCHP, included in the list of main acts of the by-law type in this area, also contain the Presidential Decrees of the Russian Federation:
- “On the liberalization of foreign economic activity within the borders of the RSFSR” of 1991.
- “On the modernization of work with foreign investment flows” of 1993
- “On the activities of banking institutions of foreign origin and joint type banks with the participation of non-resident funds in the territory of the Russian Federation” of 1993
- “On the attraction and exploitation of labor of foreign origin” of 1993.
- “On supporting measures to attract foreign investment flows in the material sphere” of 1995
- “On the fundamental principles of the implementation of foreign trade activity of Russia” from 1995.
- “On the regulation of foreign trade barter operations within the state” of 1996
International custom
Types of sources of MCHP contain customs of international scale. For a particular rule to receive the status of an international custom, it must meet several conditions:
- the duration of the available repetition;
- revitalization in an identical setting;
- the presence of approval directly by the subjects of the PMP themselves.
Custom is a norm that has developed relatively long ago, the application of which is characterized by systematicity. However, it is not fixed anywhere. This is the main difference between international custom and law.
Feature
International customs are very similar to ordinary ones. The main difference is the presence or absence of legal force.
Regulatory provisions at the international level and customs of a national scale will be mandatory only for those entities of the MHP in the state of which they are recognized.
Customs practices in the Russian Federation are international legal and commercial. The latter are actively used in countries where interstate trade is carried out, in particular shipping.
Signs
Custom can be determined by the following criteria:
- general recognition;
- uniformity in use;
- recognition as a binding rule from a legal point of view.
Custom and habit
These concepts are similar and intersect with each other. Custom is a behavioral norm that is mandatory, while custom is optional. Its non-compliance does not threaten the subject of the EMP with international legal responsibility. But ordinary and laid-back customs can easily turn into international sources of MCHP (customs), if this rule is recognized as an international legal norm. It is impossible to determine exactly when a habit becomes a custom.
International custom and international treaty
The relationship of these two sources of MCHP is as follows:
- In most cases, international custom is prescribed on a contractual basis, that is, it is confirmed in an agreement concluded by states.
- An international agreement can become an international custom.
- A custom may act as a supplement to an interstate treaty and make appropriate changes and amendments to it regarding the application of certain provisions.
Judicial Precedents
The next source of PPM is judicial precedent.
Case law is a system based on the rules formulated in judgments of the judiciary. Today, this legal industry has gained the greatest popularity in those states that were previously part of the British Empire. Among them are Canada, the United States of America, Great Britain, Australia, New Zealand.
In historical terms, case law is a combination of common and fair law that was practiced in England about 650 years ago. The judiciary was characterized by flexibility and some creativity in the approaches used to assess the circumstances of the fact-finding paperwork. Common law courts, on the other hand, were characterized by a more conservative and traditional approach to the procedure for resolving conflicts and issuing decisions. It is the latter that forms the basis of modern case law.
In order to “turn on” and begin to understand the essence of the law of judicial precedents, you need to find out the content of three categories, which in the Anglo-Saxon system are identified by the terminology of Latin origin and reveal the concept of sources of MCHP: stare decisis, ratio decidenti and dictum.
- Stare decisis. When translated literally, “stick to the decision.” This is a principle that emphasizes the importance of a decision made by a judicial authority and its binding nature. At the same time, an absolutely identical verdict was issued with subsequent resolutions of similar cases.
- Ratio decidenti. The bodies operating under case law do not take into account the court decision in full, but only partially. And to be more specific, it’s only the part in which the fundamental legal provisions are determined, based on the content of which the verdict itself was issued.
- Dictum. They are insignificant statements, notes, remarks, remarks that influenced the court order indirectly, since they did not create its legal basis.
It is difficult to independently determine which of the above components is contained in a specific court decision.