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MAIN PAGE > Journal "International Law" > Rubric "International civil law/private law"
International civil law/private law
Erpyleva N.Yu. - International commercial arbitration: institutional bases for its functioning. pp. 1-74


Abstract: This article is devoted to the complex topical issues regarding functioning of the international commercial arbitration. The combination of legal norms regulating organization and functioning of international commercial arbitration forms international arbitration procedural law, which is a branch of international procedural law, and a sub-branch of the international private law.  In this article the international commercial arbitration is understood as a court of private arbitration, whether permanent or formed for ruling on a specific case, the main goal of which is to hear and resolve international commercial dispute in a certain procedural form by  making a decision, which is binding to the parties. The article contained detailed analysis of definition, legal nature, competence and types of international commercial arbitration, definition, types and conditions for the validity of international arbitraton clauses, the procedure for recognition and enforcement of foreighn arbitral decisions. The scientific analysis is made with the reference to various normative legal sources, including national legislation and international treaties.   
Grigor'eva O.G. - Implementation and protection of family rights in the framework of international legal cooperation: history and ways of modernization pp. 1-9


Abstract: The author examines the Soviet and modern legal experience of the international cooperation in family matters; establishment and development of family law that regulates relations complicated by a foreign element, as well as formation of the international legal framework for such cooperation. The article provides the unique archive materials from the Archive of Foreign Policy of the Ministry of Foreign Affairs of Russia, which demonstrate the status of the law enforcements practice in the examined area. The work describes the continuity by the modern Russian legislator of the established over the Soviet period traditions of international cooperation in family matters.  The author suggest the ways for improving the existing family law in the aspect of international legal assistance. In particularly, the following proposals are made on introduction of the amendments to the Family Code of the Russian Federation: Federal Law “On Acts of Civil Status” and Federal Law “On Custody and Guardianship” that pertain to realization of the mechanisms of international legal assistance on family affairs.
Pravdina A.A. - Phenomenon of delocalization of international commercial arbitration pp. 7-18


Abstract: The article discusses the phenomenon of delocalization of international commercial arbitration, its correlation with national law and order. The author analyzes various concepts of the idea of international commercial arbitration, the degree of autonomy of international arbitration, in particular the subject of analysis covers such issues as interference of national courts in the arbitration process, recognition of foreign arbitral awards and arbitrability of international commercial disputes. Special attention is paid to the study of the legal nature of international commercial arbitration as a specific form of justice. As methods of research, a comparative legal method, an analytical method, and a method of logical generalizations are used. With the help of these methods, the author formulates the definition of delocalization, which refers to the formation of a transnational legal regime that is not bound by national legal orders, but formed on their basis, the tendency to an absolutely independent autonomous regime. Thus, despite the fact that the independent nature of international commercial arbitration lies in its nature, along with the principle of autonomy of the will of the parties and contractual nature, arbitration cannot be completely independent of national legal orders, since they are the basis of its origin.
Nikitin V.V. - Membership in the self-regulatory organizations as a factor of legal capacity pp. 10-18


Abstract: The focus of this research is the legal capacity of organizations that is defined in accordance with the various proper laws in the context of requirements to the membership in self-regulatory organizations (SRO). The amendments introduced into the Article 40 of the Civil Code of the Russian Federation within the framework of reform of the general part of the Civil Code, have established that the membership in SRO (admission to SRO) is henceforth a part of the capacity of legal entity. At the same time, the legal capacity of legal entities of foreign descent can be determined on the basis of their proper law in accordance with the Article 1202 of the Civil Code of the Russian Federation. The article resolves the question in which way it correlates with each other. The scientific novelty of this work consists in proposing of the solution to the problem of interconnection of the Articles 49 and 1202 of the Civil Code of the Russian Federation. Limitations associated with the membership in SRO along with the licensed limitations, are derived from the content of legal capacity of the legal entity, as well as viewed as the elements of public regulation of the entrepreneurial relations. In this case, they go beyond the reach of the foreign proper law and must submit to the administrative public regulation of their activity in the territory of Russian Federation.
Erpyleva N.Yu. - International civil procedural law: definition, object and system. pp. 16-160


Abstract: This article concerns definition, principles, object and system of the main institutions of the international civil procedural law, as an important branch of the international procedural law together with the international arbitration procedural law. International procedural law is a branch of international private law, including both norms of national legislations and international treaties concerning procedural relations with a foreign element, namely, international procedural relations (in other words, trans-border procedural relations). The author singles out seven principles of international civil procedural law. The object of international civil procedural law is formed with the procedural relations regarding proceedings on international commercial disputes in state courts of various states. The main elements of international civil process, which are analyzed in great detail from the standpoints of national legislations and international treaties (both bilateral and multilateral), are judicial competence on international commercial disputes, use of injunctive measures, recognition and enforcement of foreign judicial decisions.
Shchekina E.G. - On certain peculiarities of the notion “circumvention of law” in the private international law of Germany pp. 19-27


Abstract: The subject of this article is the problem of the circumvention of law in the private international law of Germany. The author analyzes the positions of some contemporary German researchers pertaining to the question of circumvention of law and the criteria for its determination, as well as court decisions on this matter. The author raises a question on correlation between the circumvention of law and choice of law applicable to legal relation, as well as examines this problem in the context of the notion of autonomy of the parties. The separate groups of legal relations, for which according to the German judicial practice is characteristic the problem of circumvention of law, are being highlighted. The author’s main contribution into the development of the examined topic consists in the study of the position of certain German authors, who have not previously been covered in the Russian literature. During the course of this research, the author described the fundamental principles that serve as a guidelines for the German courts in dispute resolution with the presence of foreign component with regards to the question of circumvention of law.
Gyul'verdiev R.B. - Definition of the notion of “foreign trade agreement”: convergent approach pp. 54-65


Abstract: This article examines the questions of definition of the notions “international contract” and “foreign trade agreement”. Despite the multiple attempts at convergence of the norms of Russian legislation and the norms of international law in the area of foreign trade, as well as their subsequent systematization, the question of proper interpretation of international contracts and determination of the “foreign” character of such contracts remains open, and provokes many disputes among theoreticians and practitioners. A special attention is given to the practice of international commercial arbitration in the Russian Federation, based on the criterion “place of business”. The key moment in the definition of the “foreign” nature of this type pf contracts will be the geographical location of the companies (place of business). There is no legal definition for “place of business”, yet the wide use of this notion in the practice of signing foreign trade agreements creates the need of its precise regulation at the legislative level. In this case, the special attention needs to be focused on the practice of the International Commercial Arbitration Court for Russian Chamber of Commerce, which characterizes the “place of business” as organizations located in different countries that are participants of the Vienna Convention of 1980.
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