Sources of IPP: types and features

Private international law (IPP) is a unified system, the links of which are the norms of the domestic legislation of a state, agreements and customs of international importance designed to regulate civil, legal, labor and other private relations in which a foreign element takes place. At the same time, both legal entities and individuals can be parties to private legal relationships. What is the basis, and how are these relationships regulated?

Sources of IPP: concept and types

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 indicators of the specific gravity of this or that source of PPP in different countries are not the same.

It should be noted that in the same state, norms taken from different sources can be applied. Here everything depends on the type of legal relationship.

Classification of sources of international law

Depending on the formal value:

• The material sources of IPP are the features of the life of society, which are characterized by a material sign. These are the objective needs of the development of the public, the conditions of everyday life, the economic component and so on.
• Formal sources represent a multifaceted reflection of the rules of law.

Depending on the chosen dispute resolution instrument, the types of sources of the PPP are divided into:

• Basic. These include agreements of international importance, customs of an international legal nature.
• Auxiliary. Include documents of a different nature (declarations, statements, resolutions, proclamations and others) that are signed by members of international organizations, decisions of the judiciary, statements by premium professionals in the field of international legal relations. The latter are referred to as doctrines.

General principles and norms of international law

The formulation of "general principles" is characterized by an ambiguous character. Some well-known scientists affirm that 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 have retroactive force, specific law has advantages over the general law, agreements must be implemented and so on. Other scientists identify common norms with the fundamental principles of MP.

International agreements

An international agreement is the agreement of two or more states with each other, concluded in writing and subject to regulation by international law.

The treaty of international character 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 that arise between the subjects of the IPP, and to ensure (both voluntary and compulsory in the event of non-fulfillment of certain items).

The international treaty is the main source of IPP. The agreement can be called arbitrarily, starting from the usual "contract", "contract" and ending with "convention", "treatise", etc. What kind of name is suitable for an international agreement, determine its sides, focusing exclusively on personal preferences.

The peculiarity of the international agreement

The peculiarities of the sources of IPP of the type in question consist in their legal duty, which does not lose its force, whatever 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 responsibility.

Forms of contract

What forms are the sources of the PPP? The concept and types are discussed below. So, agreements between participants in interstate relations can be concluded in 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.

Classification

International agreements have several classification characteristics.

Depending on the subject of regulation, the sources of MPP are divided into:

• Economic;
• Political;
• military;
• Others.

Depending on the number of parties, sources of IPP are:

• Bilateral;
• Multilateral.

Depending on the validity period:

• Urgent (subscribe for a certain period of time);
• Term.

Depending on the option of joining as a participant, the sources of the PPP are divided into:

• Open (contracts, which the third state has the opportunity to become a party to);
• Closed (agreements whose members must comply with prescribed requirements and criteria).

In content and structuring:

• Classical type (composed of the preamble, the climax and the final parts).
• Simplified (contracts that are concluded through the exchange of notes and other all kinds of agreements fixed in the relevant acts).

Domestic sources of IPP: legislative framework

The law is above all! In the vast majority of countries, the Russian national legislation refers to the norms of interstate private law. As a source of IPP it includes normative legal acts that act as a key to solving issues requiring legislative settlement.

The issues concerning the legal sphere under consideration are no exception. When signing a particular law in the field of private law, it is codified. 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 uniform system for codifying the national-level MPP norms. 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, 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 a number of normative documents that prescribe the norms of the MPP conflict type. The most important of them is the Civil Code of the Russian Federation. The adoption of its separate parts dates back to 1994, 1996 and 2001 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 considered sources of IPP are characterized by complexity, and in their content are defined the behavioral norms inherent in this or that legal branch - administrative, financial, customs, labor, civil and so on.

Here it is worth noting such laws:

• "On Foreign Investment Flows in Russia", adopted on July 9, 1999.
• "On investment activities in the Russian Federation, which is carried out in the form of capital investments," effective from February 25, 1999.
• "About commercial industrial chambers of the Russian Federation" from 1993.
• "On state regulation of foreign trade activity" from 1995.
• "On the leasing procedure" from 1998.
• "On the measures aimed at protecting the implementation of external commodity sales" from 1998.
• "On Export Control" of 1999.

Sources MPP, included in the list of basic acts of subordinate type in this area, also contain Presidential Decrees of the Russian Federation:

• "On the liberalization of external economic activity within the borders of the RSFSR" from 1991.
• "On the modernization of work with foreign investment flows" from 1993.
• "On the Activities of Banking Institutions of Foreign Origin and Joint Banks with the Participation of Non-Resident Funds in the Territory of the Russian Federation" of 1993.
• "On the attraction and exploitation of the labor force of foreign origin" from 1993.
• "On supporting measures to attract foreign investment flows in the material sphere" from 1995.
• "On the Fundamental Principles for the Implementation of Russia's Foreign Trade Activities" of 1995.
• "On the regulation of external trade barter transactions within the state" of 1996.

International custom

Types of sources of IPP contain international customs. For a particular rule to be internationally accepted, it must meet several conditions:

• The duration of the repetition;
• Activation in an identical setting;
• Presence of approval directly by the subjects of the IPP.

Custom is a norm that has developed relatively long ago, the application of which is characterized by systematicity. However, it is not fixed anywhere. This is the main difference between international custom and law.

Feature

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 Ministry of Emergency Situations 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.

Symptoms

Custom can be determined by the following characteristics:

• General recognition;
• Monotony in application;
• Recognition as a mandatory rule from a legal point of view.

Custom and Usage

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 unconstrained habits 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.

International custom and international treaty

The connection between these two sources of IPP is as follows:

• In most cases, the international custom is prescribed on a contractual basis, that is, confirmed in an agreement that the states have concluded.
• An international agreement can become an international custom.
• Custom can act as a supplement to an interstate agreement and make appropriate changes and amendments to it in the application of certain provisions.

Legal precedents

The next source of 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 judicial bodies were characterized by flexibility and some creativity in the approaches used to assess the circumstances of the 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, it is necessary to clarify the content of 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.

• Stare decisis. In the literal translation means "stick to the solution." This is the principle, which emphasizes the importance of the decision rendered by the judicial authority, and its compulsory execution. At the same time, an absolutely identical verdict was issued at subsequent resolutions of similar cases.
• Ratio decidenti. The bodies acting in accordance with the case law take into account the court decision not completely, but only partially. And to be more specific, it is only the part in which the fundamental legal provisions are defined, based on the content of which the verdict itself was pronounced.
• Dictum. They are insignificant statements, notes, comments, remarks that influenced the judicial decision indirectly, since they did not create its legal basis.

It is difficult to determine independently which of the above components is contained in a specific court decision.