08-12-2024
Салиль Дуня Яхья Мохаммед Яхья
Белгородский Государственный Технологический Университет им. В.Г. Шухова
Introduction:
The article analyzes the problems associated with the application of foreign civil procedure norms in the settlement of disputes in international civil procedure. The tendency to apply foreign civil procedural norms has appeared in judicial practice relatively recently, however, at present, reference to foreign procedural law is enshrined in most national and international legal acts on private international law and international civil procedure. This creates the problem of identifying a special category of conflict of laws — procedural conflict of laws rules, the problem of defining their concept and structure (including rules on conflict of jurisdiction resolution).
The purpose of the study is to show that in private international law and international civil procedure there is a special category of norms prescribing the application of foreign civil procedure law, i.e. procedural conflict of laws rules. The purpose of the study is to show that the application of the procedural law of the country of the court in modern international civil procedure should be positioned not as a procedural imperative, but as a general conflict of laws binding. To solve the tasks set, the relevant norms of national laws and international legal acts, as well as examples from judicial practice, are considered. A brief overview of the doctrinal views concerning the problem under consideration is given.
The main research methods are comparative law, comparative and retrospective analysis.
Currently, the application of foreign civil procedure norms is an everyday reality, in connection with which it can be argued that there is a special legal category of "procedural conflict of laws rules". It is advisable to assert the law of the country of the court in international civil procedure not as a procedural imperative, but as a conflict of laws principle, a general conflict of laws binding. It is also proposed to define the rules on resolving the conflict of jurisdictions as procedural conflict of laws rules.
Keywords: private international law, international civil procedure, procedural conflict of laws rules, foreign civil procedure rules, procedural conflict of laws issue, conflict of jurisdictions.
The intricate interplay of legal systems in our increasingly globalized world underscores the significance of conflict of laws rules within civil procedure activity. As individuals and entities engage across borders, the legal implications of these interactions necessitate a robust framework to determine applicable laws and jurisdiction. Conflict of laws rules serve as essential tools to resolve discrepancies that arise when different legal systems govern the same issue, particularly in civil matters ranging from contracts and torts to family law. This article explores the foundational principles of conflict of laws in civil procedure, examining how these rules facilitate fair and efficient adjudication in a multi-jurisdictional context. By analyzing key concepts such as jurisdiction, choice of law, and recognition and enforcement of judgments, we aim to illuminate the challenges and solutions that arise in navigating the complexities of legal pluralism. Understanding these dynamics is pivotal for legal practitioners, scholars, and policymakers as they seek to ensure justice and coherence in an interconnected legal landscape.
Salil Dunya Yahya Mohammed Yahya.
A student is tied up in Belgorod State Technological University named after V.G. Shukhov.
46 Kostyukova str, Belgorod, Russia.
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Procedural Conflict-of-Laws Rules in Private International Law and International Civil Procedure
The article analyzes the problems raised from the use of foreign civil procedure norms in the settlement of disputes in the international civil process. The trend towards the application of foreign civil procedural rules has emerged in judicial practice relatively recently, but the reference to foreign procedural law is now enshrined in most national and international legal instruments on private international law and on international civil procedure. This gives rise to the problem of distinguishing a special category of conflict of laws — procedural conflict of laws rules, the problem of determining their concept and structure (including rules on the resolution of conflict of jurisdiction).
The aim of the study is to illustrate that there is a special category of rules in international private law and international civil procedure which prescribes the application of foreign civil procedure law, i.e. procedural conflict-of-laws rules. The task of the study is to show that the using of procedural law of the court’s country in the current international civil process is advisable to position not as a procedural imperative, but as a general conflict – of-laws binding. The relevant norms of national laws and international legal acts, examples from judicial practice are considered to solve mentioned tasks.
The author gives a brief overview of doctrinal views on the problem raised in the article.
Main research methods are: comparative law, comparative and retrospective analysis.
Currently, the application of foreign civil procedure rules is a daily reality, and therefore it is possible to assert the existence of a special legal category “procedural conflict-of-laws rules”. The law of the court’s country in the international civil process should be approved not as a procedural imperative, but as a conflict-of-laws principle, as a general conflict-of-laws binding. Also the author proposes to define the conflict-of-laws rules as a procedural conflict-of-laws rules.
Keywords: international private law, international civil process, procedural conflict-of-laws rules, foreign civil procedure rules, procedural conflict-of-laws question, conflict of jurisdiction.
Approximately until the middle of the 20th century, private international law (hereinafter referred to as PIL) and international civil procedure (hereinafter referred to as IHL) had an unshakable principle: foreign
public (including foreign civil procedural) law was not applied. In private law relations related to foreign legal order, it could only be a question of the application of foreign substantive private law. Since civil procedural law is a branch of public law, in IHL, only the lex processualis fori (the procedural law of the forum) was applicable. Until the 1960s, Soviet and foreign doctrine was dominated by the position that "the activities of the judicial bodies of a given state, as well as other bodies of the state, are determined only by the state's own law. It is inappropriate here to raise the question of a connecting factor, i.e. the law with which this relationship has the closest connection, since legal proceedings and related civil procedural relations, as a rule, are subject only to the court's own right."
At the same time, the doctrine expressed the opposite point of view, the supporters of which defended the possibility and necessity of applying not only foreign substantive private law rules, but also foreign public law rules: "If the possibility of applying the norms of foreign public law is excluded, then in this case the judge cannot determine the citizenship of foreigners in accordance with their national legislation; it cannot apply foreign exchange laws; he may not apply foreign administrative laws to establish the legality of a foreign document issued by a notary public or an official of a foreign state; and it cannot even apply foreign substantive rules in the field of civil law, since all foreign legal norms are the result of the exercise of the sovereign power of the state.
In the second half of the 20th century, the provision on the non-applicability of foreign civil procedural law lost its unconditionally imperative character. In the judicial practice of different countries, as early as the 1950s-1960s, there was a tendency to apply the norms of foreign civil procedural laws. law), but also their direct application. Thus, in May 1960, the People's Court of the Korosten District of the Ukrainian SSR, applying Article 311 of the Civil Procedure Code of the Polish People's Republic, warned the plaintiff Sh. about the liability for giving false testimony, which is not practiced in Soviet law. stipulates that the application of a rule of foreign law cannot be limited only on the basis that this rule is of a public law nature. A similar provision is established in many national laws on PIL : "Foreign law claimed by a conflict of laws rule shall.
apply even if it is contained in the rules of public law" (Article 85 of the PIL Law of the Dominican Republic of 2014).
Many representatives of modern doctrine advocate the establishment of an obligation to apply foreign procedural legal norms. The application by the court only of its own procedural law puts all participants in the process (both its own citizens and foreigners) in the same position, i.e. there is "equal treatment with unequal things" – a legal dispute related to a foreign legal order is considered as a national dispute. The procedural theory of the law of the court contradicts the protection of the rights of foreign persons6.
The most reasoned concept of the application of foreign procedural law was proposed by the Hungarian scientist I. Sasi. He wrote that the strict requirement to apply only the law of the court in the process violates the connection between national substantive and procedural rules, since the norms of foreign substantive law are practically impossible to implement in the form of a procedural order of the law of the country of the court, which is alien to them. This hinders the achievement of objective truth and violates the connection between civil rights and freedoms of the individual in the material sense and their procedural forms.7
Justice requires that actions based on foreign.
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