This mandatory course aims at acquainting students with the Russian theory of International Private Law (IPL). The course covers all the issues required by the standards of the Russian legal education. In addition, various concepts of IPL that are used in other countries will be introduced to the students. Certain issues will be discussed from a comparative perspective. This will allow the students to analyze the Russian theory of IPL in the light of traditional and modern legal theories and practices of IPL and to find out its advantages and disadvantages as well as to develop their reasoning skills.
ROLE OF THE COURSE IN THE OVERALL DEGREE CURRICULUM
This is a mandatory course taught at the Department of International Private Law. The successful completion of the course is a requirement for graduation.
The required readings:
M.M. Boguslavskiy. International Private Law: Textbook (Moscow 1999).
V.P. Zvekov. International Private Law: Lectures (Moscow 1999).
A.S. Skaridov. International Private Law: Textbook (St. Petersburg 1998).
The recommended readings are listed in the supplementary material - International Private Law: Practicum (Moscow 1999) by M.M. Boguslavskiy. Each student is required to bring the supplementary material to the seminars. The supplementary materials are freely accessible at the library of the Academy of Law and may be borrowed by the students.
The students will take an oral exam. The list of 150 questions for the exam is freely accessible at the Department of International Private Law.
I. Subject-matter, methods and system of IPL (2 hours)
- The subject-matter of IPL. The scope of the subject. Foreign element in Russian law. Definitions: International Private Law and Conflict of Laws.
- IPL as a branch of Russian law. IPL and International Public Law. IPL and Civil Law.
- The system of IPL in Russian law. Modern foreign theories of IPL.
- Substantive and conflict methods of IPL.
- The structure of conflict rules. The kinds of conflict rules. Connecting factors.
- Construction of connecting factors. Determination of connecting factor by lex fori or lex causae.
- Public policy.
- Renvoi. Transmission and remission.
II. Sources of IPL (2 hours)
- The sources of IPL and their nature.
- International Treaty as a source of IPL. The theory of transformation.
- National legislation. The Constitution of the Russian Federation.
- Trade customs as a source of IPL.
- Judicial and arbitral practice. The legal value of precedents in Russian and foreign law.
- General characteristics of the sources of IPL in foreign countries.
- Unification. The legal nature of unified norms, the sphere of their application. The kinds of unified norms. International treaties and agreements on the unification of IPL. Lex mercatoria. International organizations and their role in unification of the sources of IPL (UNCITRAL, UNIDROIT, the Hague Conference on the Unification of International Private Law, UNCTAD, etc.)
III. Persons governed by IPL (2 hours)
- Natural persons. Personal law and connecting factors for its determination (domicile, nationality, ordinary/habitual residence).
- The status of foreigners and stateless persons in Russia. Internal law on foreigners and stateless persons.
- Legal persons. Connecting factors for legal persons (the place of registration, the place of doing business and the place of administration)
- The status of foreign legal persons in Russia. The investment activity of foreign legal persons in Russia.
- Transnational corporations and their status.
- State immunity. The kinds of state immunity (the immunity from the court action, the immunity from the court order, the immunity from the enforcement of judgment). The doctrine of functional immunity in foreign law.
IV. Property (2 hours)
- The conflict issues of property law. The law applicable to the transfer of movable and immovable property and to the scope of the proprietary right.
- The extraterritorial application of nationalization laws.
- Investment regimes. Bilateral investment treaties. Offshore zones.
V. International business transactions (4 hours)
- The definition of an international business transaction under the Russian law. The law applicable to international business transactions in the absence of a choice of law made by the parties.
- Party autonomy. The limits of party autonomy under the Russian and foreign law. Mandatory rules. The Rome Convention on the Law Applicable to Contractual Obligations 1980. The comparison of the choice-of-law rule of Russian law and that of the Rome Convention.
- The Vienna Convention on the Contracts for the International Sale of Goods 1980. Sphere of application. Excluded issues. Interpretation.
- Standard contracts.
- Trade customs. INCOTERMS 1990.
VI. The carriage of goods and passengers (4 hours)
- The carriage of goods by sea. Documents of title. The bill of lading. Charter-party agreements. The Hague Rules 1924. The Visby Rules 1966. The Hamburg Rules 1978. The limits of liability.
- The carriage of goods and passengers by air. International agreements. The Warsaw Convention 1929. The Hague Protocol 1955. The limits of liability. Documents of title.
- The carriage of goods and passengers by rail. International agreements. COTIF 1980. Documents of title. The limits of liability.
- The carriage of goods and passengers by road. International agreements. Documents of title. The limits of liability.
- International contracts of combined carriage.
VII. Methods of payment in international business transactions (2 hours)
- The letter of credit. The ICC Pub. ? 500 (the UCP 500).
- The collection. The ICC Pub. ? 450 (the UCP 450).
- The bills of exchange. The Geneva Conventions.
- The cheques. The Geneva Conventions.
- Foreign exchange transactions and foreign exchange regulations.
VIII. Torts (2 hours)
- The conflict of law issues in tort law. Connecting factors in tort law.
- Torts in Russian law. The Russian doctrine of illegality.
- Torts committed abroad.
IX. Legal protection of Intellectual Property (4 hours)
- Intellectual property. Art. 2 of the Convention establishing WIPO 1967.
- Territorial character of intellectual property. Peculiarities of intellectual property regulations in IPL.
- Copyright law and related rights. Legal protection of copyright and related rights of foreigners under the Russian law. Legal protection of copyright and related rights of Russian citizens abroad under the Russian law.
- International legal protection of the copyright. International agreements on the copyright law. The Geneva Convention on the Copyright Law. The Bern Convention.
- Industrial property. Legal protection of the industrial property rights of foreigners under the Russian law. The patent procedure for the Russian citizens abroad. The patent: its juridical force. The license agreement in IPL. The definition, content and kinds of a license agreement. "Know-how" license agreements.
- The trade mark. The procedure and conditions for the trade mark registration under the Russian law. The protection of trade marks abroad.
- International agreements on the industrial property law. The Paris Convention on the Protection of the Industrial Property. The Washington Treaty on the Patent Co-operation. The Madrid Convention on the International Registration of Trade Marks.
X. Family Law (2 hours)
- The conflict of law issues in family law.
- The marriages of the Russian citizens and foreigners in Russia: the form, procedure and conditions.
- Consular marriages.
- The recognition of the foreign marriages of the Russian citizens and foreigners in Russia.
- The recognition of the marriages of foreigners in Russia.
- The recognition of the dissolution of marriages of the Russian citizens and foreigners in Russia. The dissolution of the marriages of the Russian citizens residing abroad in the Russian courts.
- The recognition of the dissolution of marriages of the foreign citizens in Russia.
- The law applicable to property and personal rights of the spouses.
- The citizenship of children and their legal position. The adoption of the Russian children by foreigners. Alimony obligations. The custody.
- The family law issues in the legal assistance and co-operation treaties.
XI. Law of Inheritance (1 hour)
- The conflict of law issues in inheritance law.
- The inheritance rights of foreigners under Russian law.
- The inheritance rights of the Russian citizens to the inheritance property abroad.
- The heirless property. Conflict issues.
- The inheritance law issues in the legal assistance and co-operation treaties.
XII. Labor Law (1 hour)
The conflict of law issues in labor law.
XIII. International Civil Procedure (4 hours)
- The definition of the International Civil Procedure. The choice of jurisdiction. Kinds of jurisdictions under the Russian and foreign law. The prorogation and derogation. The EC (Brussels) Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters.
- The procedural peculiarities of the participation of foreigners in the Russian courts.
- The ascertainment of foreign law and its application and construction in the Russian courts.
- The enforcement of the foreign courts orders. The Hague Convention on the Civil Procedure 1954. The issues of the court orders in the legal assistance and co-operation treaties.
- The recognition and enforcement of foreign judgements in Russia. The issues of court orders in the legal assistance and co-operation treaties.
- The recognition of documents issued in foreign states. The Hague Convention on the Abolition of the Legalization.
XIII. International Commercial Arbitration (4 hours)
- The definition and the legal nature of the International Commercial Arbitration. Institutional arbitration and ad hoc arbitration.
- The rules of procedure of the arbitral organizations (the ICC Rules, the Rules of the International Court of Commercial Arbitration under the Russian Chamber of Trade and Commerce in Moscow)
- The Model Rules for the ad hoc arbitration: UNCITRAL Arbitration Rules, the Arbitration Rules of the UN Economic Commission for Europe, the UNCITRAL Model Law on International Commercial Arbitration.
- Arbitration agreements. The principle of autonomy of the arbitration agreement.
- The recognition and enforcement of the foreign arbitral awards. The New-York Convention on the Recognition and Enforcement of the Foreign Arbitral Awards. The grounds for refusal to recognize and enforce a foreign arbitral award.