Private international law (IPP) is a unified system, the links of which are the norms of the internal legislation of a state, agreements and customs of international significance designed to regulate civil, legal, labor and other private relations in which a foreign element takes place. At the same time, legal entities and individuals can be parties to private legal relationships. What is the basis, and how are these relationships regulated?
In the legal science Sources of international law are forms of expression and consolidation of international legal norms, which are peculiar to specificity. It should be noted that the specific weight of a source of PPP in different countries is not the same.
It is worth noting that in one and the same state norms from different sources can be applied. Here everything depends on the type of legal relationship.
Depending on the formal value:
Depending on the chosen dispute resolution instrument, the types of sources of the PPP are divided into:
The formulation of "general principles" is characterized by ambiguous nature. Some well-known figures of science maintain that the general principles include postulates of a legal orientation of the traditional type, which are known to Roman law. A vivid example is statements about the fact that the law does not possess retroactivity, a specific law is characterized by advantages over the general law, agreements must be implemented and so on. Other scientists identify common norms with the fundamental principles of the MP.
An international agreement is the agreement of two or more states among themselves, concluded in writing and subject to regulation by international law.
An international treaty is a legal act of a special type, in which the rights, demands and duties of the main subjects of international law are fixed in relation to each other. The mission of such a treaty is to regulate the relations arising between the subjects of the PPP, and to ensure (both voluntary and compulsory in the event of non-fulfillment of certain items).
The international treaty is the main source of the IPP. You can name the agreement as you like, starting with the usual "contract", "contract" and ending with "convention", "treatise", etc. What kind of name is suitable for an international agreement, its parties determine, focusing exclusively on personal preferences.
The peculiarities of the sources of the PPP of the type under consideration consist in their legal duty, which does not lose its force, no matter what form of agreement the participants have chosen and, as it were, not named it. Evasion of the implementation of the provisions of the contract entails corresponding liability.
What forms are the sources of the PPP? The concept and types are discussed below. So, agreements between participants in interstate relations can be written and oral forms. The latter is used in extremely rare cases, and on the territory of the Russian Federation, it can be said, is not practiced at all. Oral contracts are also called gentlemen's. They are not international agreements, moreover, they do not imply a legal nature, since they represent a set of moral obligations.
In the Russian state, the drafting of international treaties is practiced solely in writing.
International agreements have several classification features.
Depending on the regulated object, the sources of MPP are divided into:
Depending on the number of parties, the sources of IPP are:
Depending on the validity period:
Depending on the option of joining as a participant, the sources of the PPP are divided into:
By content and structuring:
The law is above all! In the overwhelming majority of countries, Russian national legislation refers to the norms of interstate private law. As a source of the PPP, it includes normative legal acts that act as a key to resolving issues requiring legislative settlement.
The issues concerning the legal sphere under consideration are no exception. When signing this or that special law in the field of private law, its codification is carried out. A wide variety of regulatory documents emerging suggests that the mechanism of the coding process is characterized by different approaches.
On the territory of Russia, there is no single system for codifying the national-level MPP standards. The National Sources of IPP in the Russian Federation contain provisions on private law in complex, sectoral, specific regulatory and legal papers that can relate to any level and have any origin. The leading role belongs to the Constitution of the Russian Federation, which has been in force since 1993. It clearly defines the structuring of the category "public order of the country". In addition, the Constitution is a key instrument in establishing the general limits of the operation of legislative norms of foreign origin and by-laws in the territory of Russia.
Russian national legislation, as a source of IPP, contains many normative documents that prescribe the norms of the MPP of the conflict type. The most important of them is the Civil Code of the Russian Federation. Acceptance of its individual parts is dated to 1994, 1996 and 2001 years respectively.
An impressive number of conflict standards includes the Family Code of Russia, which has been in effect since the end of 1995. International legal sources of IPP include this document.
Private international law in Russia is also regulated by laws and by-laws that establish rules for the procedure for the implementation of foreign economic or investment activities where foreign participation takes place. Usually, the sources of IPP considered are complex, and their content defines the behavioral norms peculiar to one or another legal branch - administrative, financial, customs, labor, civil and so on.
Here it is worth noting such laws:
Sources of IPP, included in the list of basic acts of subordinate legislation in this area, also contain Presidential Decrees of the Russian Federation:
Types of sources of IPP contain customs and international scale. In order for a particular rule to become an international custom, it must correspond to several conditions:
Custom is a norm that has developed relatively long ago, the application of which is characterized systematically. However, it is not fixed anywhere. This is the main difference between international custom and law.
International customs are very similar to ordinary customs. The main difference is the presence or absence of legal force.
Normative provisions of the international level and customs of a national scale will be mandatory only for those subjects of the IPP in whose state they are recognized.
Customs IPP in Russia are international legal and commercial. The latter find their active application in countries where interstate trade is carried out, in particular, navigation.
Custom can be determined by the following characteristics:
These concepts are similar and overlap with each other. Custom is a behavioral norm that is mandatory, while the habit is not necessarily applicable. Its non-compliance does not threaten the subject of the PPP with international legal responsibility. But ordinary and laid-back customs can easily turn into international sources of IPP (customs), if this rule is recognized as an international legal norm. To define absolutely precisely when the habit becomes a custom, it is impossible.
The connection between these two sources of IPP is as follows:
The next source of the IPP is the judicial precedent.
Case law is a system based on norms formulated in judgments of the judiciary. Today, this legal industry has gained the greatest popularity in those states that used to belong to the British Empire. Among them are Canada, the United States of America, Great Britain, Australia, New Zealand.
In historical aspect, case law is the unification of common and just law, which 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 record keeping in fact. The common law courts were characterized by a more conservative and traditional approach to the procedure for resolving conflicts and issuing resolutions. It is the latter that forms the basis of modern case law.
To "get involved" and begin to understand the essence of the law of judicial precedents, we need to clarify the content of the three categories that are identified in the Anglo-Saxon system by terminology of Latin origin and reveal the concept of sources of IPP: stare decisis, ratio decidenti and dictum.
It is difficult to determine independently which of the above components is contained in a specific court decision.