Prospects for recodification of private international law in Ukraine: do conflict-of-laws rules require a new haven

Unlike Lithuania and Latvia, Estonia has had a separate Law “On Private International Law” in force since 2002 The Law of Estonia on Private International Law. (2002, March). Retrieved from https://www.riigiteataja.ee/akt/13242136., which was developed by German, Swiss, and Austrian lawyers, since Estonia traditionally belongs to the German legal family [15]. The law was drafted according to the Swiss model and included both the rules of the PIL and the rules of international civil procedure, but only conflict-of-laws regulation was ultimately introduced. The scientific literature notes the modernity and thoughtfulness of the principles for determining the competent legal order proposed by the Estonian legislation, the presence of blanket rules containing references to EU legislation and The Hague Conventions on private international law. The indisputable advantages also include detailed conflict-of-laws regulation of ownership relations for such objects as vehicles and securities, devoting articles to certain types of obligations (consumer agreements, assignment of claims, insurance agreements, etc.). Therewith, the regulation of certain PIL issues is contained in other regulations: in the Laws “On Succession”¹ of 2009, “On Investment Funds” The Law of Estonia on Succession. (2008, January). Retrieved from https://www.riigiteataja.ee/akt/104012021036. Investment Funds Act of Estonia. (2016, December). Retrieved from https://www.riigiteataja.ee/akt/131122016003. of 2004 and in Chapter 62 “Proceedings on Cases on Recognition of the Execution of Acts of Foreign Judicial and Other Bodies” of the Civil Procedural Code Code of Civil Procedure of Estonia. (2005, April). Retrieved from https://www.riigiteataja.ee/akt/109042021017. of 2005.

Assessing the prospects for the development and improvement of the regulation of cross-border relations in the legislation of the Baltic States, most legal experts note the need for more complete implementation of the fundamental provisions of EU acts regarding the PIL and the most developed European codifications [14, p. 147].

Prof. I.V Hetman-Pavlova connects the specific features of the PIL codification in the former Soviet countries with the “Soviet tradition of interbranch codification of the PIL” [19, p. 56], which is deeply rooted in the minds of lawyers. That is why even the latest autonomous codifications of Estonia and Azerbaijan do not include the rules of international civil procedure, despite the global trend that has dominated since the beginning of the 1980s. Comparable to Latvia and Lithuania, a larger or smaller set of conflict-of-laws rules is contained in the civil codes of Moldova Civil Code of the Republic of Moldova. (2002, June). Retrieved from https://cis-legislation.com/document.fwx?rgn=3244., Kazakhstan Civil Code of the Republic of Kazakhstan. (1994, December). Retrieved from https://cis-legislation.com/document.fwx?rgn=3634., Belarus Civil Code of the Republic of Belarus. (1998, December). Retrieved from http://law.by/document/?guid=3871&p0=Hk9800218e., Armenia Civil Code of the Republic of Armenia. (1998, May). Retrieved from http://www.translation-centre.am/pdf/Translat/HH_Codes/ CIVIL_CODE_en.pdf. and some other post-Soviet countries. As the well-known Kazakh scientist Prof. M. K. Suleimenov fairly pointed out upon answering a question regarding the prospects for the development of the PIL of Kazakhstan, “we abandoned the Soviet greatcoat but still remain in it. Therefore, we still use the Russian model in our activities. We shall see what the future brings” [38].

Thus, according to the authors, the modern form of codification of PIL in Ukraine, carried out considering the best practices of European codifications, demonstrates a departure from Soviet traditions. In one of the latest dissertation studies covering modern codifications of private international law, three types of modern codifications of PIL are identified in terms of the form of consolidating rules, namely, interbranch, autonomous, and complex, and it is proved that since the mid-1980s, the world has been dominated by the trend of complex autonomous codifications. The overwhelming majority of experts in the PIL make the following arguments favouring autonomous codification:

- the separation of the PIL rules from the provisions of civil and economic legislation is necessary due to the special subject of regulation, which emphasises its independence as a definite branch of law;

- the presentation of the general PIL institutions in one specialised act allows them to subordinate all types of private legal relations with a foreign element, which contributes to a clearer and more detailed systematisation of legislation;

- combining the PIL rules in one act ensures their greater accessibility to all stakeholders, hence their effectiveness;

- integrated autonomous codification of the PIL avoids duplication of the same provisions, eliminates gaps and discrepancies between different conflict-of-laws rules;

- the adoption of a codified act on the PIL enables the reduction of the legislative array in general, contributing to the “legislation clearing”;

- there are no “mutual references” in full-scale codification, as well as fewer grounds for applying the analogy of law;

- the clear structure of special laws on the PIL enables the implementation of a comprehensive approach to regulating the most complex branch of law (which is called “higher mathematics of legal science”) and consistent distinction between its general and special institutions [20, p. 55-56].

As noted above, there is also a clear trend at this stage to incorporate the rules of international civil procedure into codified acts of the PIL. Examples include the Hungarian PIL Law (2017) The Law of Hungary XXVIII “On Private International Law”. (2017, April). Retrieved from https://magyarkozlony.hu/dokumentum ok/016703e04c2a3e6791025f6066da98b69fca22d8/megtekintes., Section IX of which covers the international civil procedure (Articles 66-126); the Law of Slovakia “On Private International Law and Rules of Procedure” (as amended in 2008) The Law of the Republic of Slovakia No. 97 “On Private International Law and Rules of Procedure”. (1993, December). Retrieved from http://jafbase.fr/docUE/Slovaquie/LoiDIP. pdf. contains Part 2 “International Civil Procedure” (Articles 37-68); the Law of Czech Republic on PIL (as amended in 2015) Law of Czech Republic No. 91/2012 Sb. “On the Regulation of Private International Law”. (2012, January). Retrieved from http://obcanskyzakonik.justice.cz/images/pdf/Act-Governing-Private-International-Law.pdf. governs not only the general provisions of international civil procedure, but also cross-border bankruptcy procedures (Articles 102-123).

The Concept states that “the emergence of individual laws on the PIL in some countries is explained by tradition (Albania, Poland, Turkey, Czech Republic, Hungary, the countries of the former Yugoslavia, Japan) or the lack of civil codes or the initiated processes of their modernisation” [4, p. 68]. The authors of this study believe that this provision is subject to additional study because Poland, Hungary, the Czech Republic, Slovakia, Estonia, and even Turkey have national civil codes, and the legislation on PIL has been updating for the last 3-5 years. Thus, the authors also believe that the experience of the new EU members and the conducted theoretical research convincingly indicate that the integrated autonomous codification of the PIL is currently the most popular, relevant, and widespread form of systematisation of the PIL rules and international civil procedure.

Concluding a fundamental study on the codification of private international law, professor S. Symeonides wrote: “this book was written in 2013, which coincidentally matches with the 700^th anniversary of Bartolus de Sax- oferrato (1613-1357), the founder of modern private international law. Over the course of seven centuries, the world has become closer and more complex, and the art of codifying law has become a science... today private international law is not only alive and well, although less idealistic, but it is also more viable, refined, flexible, and pluralistic” [6, p. 425]. The development of the PIL as an independent branch of law, legislation, science, and academic discipline has taken place, and it deserves a modern autonomous codification.

CONCLUSIONS

Unlike many former Soviet bloc republics, after lengthy discussions in independent Ukraine, the idea of autonomous codification was implemented, the PIL law was a big step in the development of private law, meeting the requirements of an open society and embodying the best achievements of academic science of that period. The existence of a separate law emphasised the independence of the branch of private international law, which does not require “shelter” on the periphery of branch codifications, which was emphasised in the comments and reviews of the vast majority of scientists and practitioners.

The analysis of current scientific studies and legislation of individual European countries and the EU demonstrates that the idea of abandoning the autonomous codification of PIL proposed by the authors of the Concept is insufficiently justified and requires further investigation. Firstly, there is a controversial claim regarding the violation of national legal traditions of the Soviet period, the minimum number of conflict-of-laws rules in the civil legislation of that time, which were almost not applied in judicial practice, hardly give grounds to speak about the existence of tradition. Ukraine created conflict-of-laws regulation starting “from scratch”, based on the best European practices of the beginning of the third millennium. Secondly, the emphasis on the dominance of interbranch codification in the EU is confirmed neither by the modernisation results of the “bastions” of civil legislation, the codes of France and Germany, nor by the current legislative practice of the new EU members. On the contrary, the vast majority of countries in the continental legal system implemented autonomous codification of the PIL at the beginning of the third millennium, a trend that remains dominant and is gaining popularity even in common law states. The development of EU lawmaking in the field of PIL has put on the agenda the need to systematise numerous regulations, and the possibility of adopting a European Code of Private International Law is being considered as one of the options.

It is also worth considering the fact that the development processes of information and communication technologies, which have been ongoing for more than thirty years, have developed a new space of social interaction, which does not have territorial and temporary barriers. The role of law in the new so-called networked society is undergoing considerable changes, and the PIL is at their forefront, as it governs cross-border private law relations, which are currently distinguished by a certain anti-hierarchy and decentralisation. In such circumstances, the modernisation of conflict-of-laws legislation, the conceptual revision of individual institutions and the introduction of new ones are much more effective within the framework of a special law. Thus, the provisions of the Concept of updating the Civil Code of Ukraine regarding the PIL require further professional discussion and an in-depth analysis of the prospects for the proposed recodification.

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