23 Июн

THE PRINCIPLE OF PARTY AUTONOMY IN IMPLEMENTING AUTONOMOUS COMPLEX CODIFICATION OF PRIVATE INTERNATIONAL LAW




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The principle of autonomy, being one of the underlying principles of implementing complexity in codification of private international law, is reflected in Civil Code of the Republic of Uzbekistan under the term “agreement of parties on alternative of law” (article 1158), which forms the basics of civil legislation. It is highlighted in the article 1 part 2 of the Civil Code as “Citizens (physical persons) and legal entities acquire and exercise their civil rights by their own will and in their own interest. They are free in the establishment of their rights and duties on the basis of contract and in determining any conditions of contract not Contradictory to legislation.” This rule, under the principle of autonomy, involves the subjects of private relations to act independently while obtaining and implementing their rights.

In Russian literature the present principle is being expressed by the term “individual autonomy”, and is regarded by the Russian scholar G.F.Shershenevich not as an objective legal norms of individual autonomy, but as a source of subjective rights. It is reflected in dispositive legal norms and at the same time enjoys higher importance toward them. Therefore, dispositive norms are to be applied only if there is no expressed autonomy of private person toward certain relation [1, 394]. The term “individual autonomy”, practiced in German civil law means that particular individual, by his own will, can apply “individual approach” to achieve their goals [2].

One of the well-known conventions, enhancing the principle of autonomy is the United Nations Convention on Contracts for the International Sale of Goods of 1980. The present principle highlights the supremacy of any Contract for the International Sale of Goods over the Vienna Convention of 1980 (article 6). This type of explanations can also be found in other international contracts, for example in article 6 of United Nations Convention on the Assignment of Receivables in International Trade of 2001.

Autonomy, being a key concept of conflict of laws, the principle reflects the mechanism providing opportunity of participants of legal relationship to choose authorized law. According to the Russian scholar A.A.Rubanov, while choosing law, individuals or organizations enter into relationship on particular legal matter. Social relationship here is not regulated by law; instead particular social relationship of the legislator’s sanction affects law. Inverse relationship occurs between them [3, 164-165].

In some cases, in doctrines autonomy is regarded as a source of private international law. It gives opportunity to contracting parties to choose any model of conduct, totally new to the present legal system [4, 94]. However, the opportunity to choose law and its borders are initially covered by the legislation of particular country, while exercising autonomy, parties indirectly fulfill the will of the country [5, 68].

There are a several of conditions of applying the principle to modern national law as an independent source of determining law. For example, In Civil Code of the Republic  of Uzbekistan Article 1158 Part 1 says that the law applicable to  civil-law relations with the  participation of foreign citizens  or foreign legal  entities or complicated  by another foreign element shall be determined on  the basis of the present Code,  or other laws,  international treaties  and customs  recognized, and  also on the basis of an agreement of parties. This kind of matters are covered by the legislations of Azerbaijan (The law about private international law, Article 1(2)), Estonia (Estonian Private International Law Act, Article 2(1)), and Lithuania (Civil Code, Article 1.10(1)). However, we believe that specifying in legislation by words “in present Code” comprises applicability of the principle in situations meant by code. Though, accepting the principle as a source creates a belief that it is applicable to any relationship covered by private international law. Therefore, it is expedient to reflect the principle of autonomy in particular article, defining terms of its application and scope, time of choosing law and condition to change applicable law. In Civil Code the presented principle is specified in particular part, mainly by Article 1189 of Contractual obligations defining the capacity and time of choosing applicable law by parties and conditions to change applicable law, we believe that it is expedient to cover the present rules in general principles as the autonomy is one of the general principles of the private international law.

Herewith, as it is advised to cover family and labor relationships in complex autonomous codification act, application of the present rules to wedding and employment contracts is believed to be effective, moreover, covering the rules as general principles means that they are applicable for the same types of contracts as the autonomy (in the legislations of Ukraine (Articles 1-, 4(3)-, 5), Azerbaijan ( Articles 1(2)-,(3)), Estonia (Article 2(1), Turkey (Article 2(4)) and Poland (Article 4) which are covered as general principles).

In Civil Code of the Republic of Uzbekistan the principle of autonomy is applicable to matters relating to property rights arising toward subject matter of the transaction, rights to real estate property of the transaction and other property rights, protection of property rights, contractual obligations, heirship and liability to consumers. Covering by 26 of 67 articles in Estonian legislation and by 16 articles of 64 in the Code of Turkey demonstrates the high level of development of the principle.

The significance of the institute of autonomy is clarified by term “choice of law”. Legislative of Ukraine defines it as “the right of participants of legal relationship to determine what right of the state is subject to application to legal relationship with the foreign element” (the law of Ukraine, Article 1). Chosen national law is usually understood as the set of legal rules exercised within the territory of particular country.

As usual only substantive law is chosen. At the same time, Estonian judicial practice pays attention to procedure of choosing foreign law as well as national legal order [6]. As the specific exception of that rule covered by Turkish legislation, article 2(4) of the Code of Turkey allows parties to choose not only particular material rights but also to decide on conflicting rules: “In cases where there is a possibility of choosing the applicable law, unless otherwise is designated by the parties the substantive provisions of the chosen law shall be applied.” A.A.Rubanov argues that while implementing the autonomy, freedom of parties should also cover the methods of choosing law: “Applicable national legal system is to be covered by agreement and conflicting rules can be covered as well” [7, 177]. However, capacity of choosing law is not covered in the Civil Code of Uzbekistan.

Before the importance of the principle was related to resolving conflicting issues, but nowadays its another feature is emphasized, and the principle is considered as the mean of providing individual autonomy to parties of private international legal relationship. From this point of view, the opportunity to choose both substantive law and conflicting rules is justified.

The choice of external national law is one of the topical issues related to autonomy. The issue occurs when parties of international trade apply “non-governmental forms of regulations” (lex mercatoria) to their legal relationships, those are [8, 109]: customs and practices of international trade, transnational acts of codification (e.g Incoterms), formal standards of contract, practice of International Commercial Arbitration.

Majority of modern national laws do not imply direct use of lex mercatoria. Bulgarian legislature introduces slightly different approach to the problem. According to the article 93(2) of Bulgarian Code, “unless otherwise agreed, the parties shall be presumed to have accepted as applicable the usage of which the parties are or ought to have been aware and which is widely known in international trade or commerce, and regularly observed by parties to contracts of the type involved in the particular trade or commerce involved”. The provision is almost identical to the Article 9 part 2 of the Vienna convention. Thus, the majority of modern codifications seek to adopt wider context of an autonomy in private international law.

Alongside with direct implementation of the autonomy, modern private international law considers its indirect implementation as well. For this, autonomy of one party (unilateral choice of law) or both parties (bilateral choice of law) of the legal relationship is to be required. In directly implementing the autonomy parties link certain legal relationship to applicable legal order.

Recently, there is an expanding tendency of the scope of application of autonomy, in particular, within the field of family law. However, there are some distinctive features of applying the principle to family law. First is to show alternative list of applicable legal order. While in legal contractual relationships the parties are free to choose any applicable law, in family law the choice is limited to certain list by regulatory sources. The reason for this is to avoid bypassing of the law and violation the rights of one of the spouses or third parties. In addition, those limitations are based on dependence of family relationships on social and cultural elements. There are two approaches of defining those limitations:

  1. The scope of applying the principle of the autonomous will is clearly defined. For example, according to the legislation of the Russian Federation, the autonomy of will is applicable only if there is no common citizenship or common place of residence. In other situations, the legislature encourages the parties to choose legal procedure where the relationships are in organic link (state of common citizenship or the legislation of the common place of residence).
  2. The scope of legal procedures related to marital relations of spouses and applicable to be chosen by parties is determined. This type of approach is exercised in legislation of Georgia, in according to this “The law may be chosen if it indicates the law of a country:
  3. a) to which either of the spouses belongs; b) in which either of the spouses has a habitual residence; c) in which the immovable property is situated.”

However, the autonomy is mainly used in family relationships to regulate property relations of spouses.

In modern doctrines, there are ideas to apply the autonomy to civil international procedure. According to V.I.Kisil, in modern stage there is an expanding applicability of the institute of autonomy, in particular by introducing the principle in choosing jurisdiction [9, 31]. This condition is reflected in freedom of choosing jurisdiction and methods of resolving international commercial disputes.

This point of view satisfies the concept of introducing private legal basis to civil procedural law based on dispositive and argumentative principles. G.L. Osokina considers disposition as “active evidence”, providing opportunity to the parties in civil procedure to control procedural rights [10, p. 25]. Disposition is demonstrated by the opportunity of the parties to decide on prorogation and arbitral agreement [11, p. 47-56].

Choice of jurisdiction is only available for the civil cases not covered by the jurisdiction of the national court, complicated by foreign element. For example, Article 223 of the Economic Procedure Code of the Republic of Uzbekistan, Article 404 of the Civil Procedure Code of The Russian Federation, Article 249 of the Arbitral Procedure Code of The Russian Federation, Articles 787-788 of the Civil Procedure Code of Lithuania, Article 76 part 1(1) of the law of Ukraine, Article 47 of the Code of Turkey, Article 23 of “Brussels’ 1” Regulation and etc. According to the Article 13 of “Brussels’ 1” Regulation “In relation to insurance, consumer contracts and employment, the weaker party should be protected by rules of jurisdiction more favorable to his interests than the general rules provide for.”

Thus, as the autonomy is applicable both as unilateral and bilateral, it is a mistake to consider the principle by term “agreement of parties related to choice of law” as defined in the Civil Code of the Republic of Uzbekistan. For example, Article 1197 of the Civil Code says that “…if the deceased does not choose the law  of the  country where  he is a citizen in the will…”. The term “Agreement of parties related to choice of law” only shows bilateral feature of the principle.

Codifications of the modern private international law determine three main forms defining the autonomy: 1) agreement on applicable law, 2) term on applicable law used in unilateral agreement, 3) procedural act. Agreement on choosing applicable law is regulated by certain articles including conflict rules and “synthesis” of instructions regulating its application.

The matters of implementing the autonomy to the “internal” contracts still remain arguable. According to the rule, foreign nature of the legal relationship is considered as important factor to apply foreign law. We believe that it is impossible to apply foreign law to the “internal” contracts, as it is the scope of compliance with private international law. Some scholars argue that parties are free to choose authorized legal order even if the contract is related to one state, i.e. there is no foreign element. Term of choosing foreign applicable law links the contract with foreign legal order, in this case, it is considered as the type of foreign element.

We believe that foreign element implies objective connection of the legal relationship with the foreign legal order. To justify application of private international law the connection has to be reasonable, i.e. the existence of the autonomy as the subjective factor is not sufficient. Legal relationships resulting from internal contracts are the subjects of national civil law. As the result, it is impossible to apply foreign law to internal contracts, adjusting concept of autonomy which is the matter of private international law.

The result of the given analysis shows that modern codifications of private international law consider the wider context of implementing the principle of autonomy. Thus, it effectively deals with one of the objectives of legal sphere related to the regulation of private legal relationships. This is reflected as the capacity of the autonomy to a) direct application of international trade custom (Bulgarian Code, article 93), b) application of law of certain territorial union where there is variety of legal systems within the country (Bulgarian Code, article 41(2)), c) application of conflict rules of a foreign country (the Code of Turkey, article 2 (4)), d) application of jurisdiction to transboundary civil cases not applicable by national or foreign courts ( the Code of Belgium, article 6(1), Bulgarian Code, article 23, the law of Macedonia, article 56(1))

Sources:

  1. Шершеневич Г.Ф. Общая теория права. С. 394.
  2. http://obhodu-zakona.net/
  3. Рубанов А.А. Принцип автономии воли сторон // Международное частное право. Современные проблемы. М., 1994. С. 164-165.
  4. Гетьман-Павлова И.В. Международное частное право: учебник. С. 94.
  5. Лунц Л.А. Курс международного частного права. Т. I . С. 68.
  6. Н.Ю. Ерпылева, И.В. Гетьман-Павлова. Автономные кодификации международного частного права на постсоветском пространстве (Азербайджан и Эстония) / http://justicemaker.ru
  7. Рубанов А.А. Принцип автономии воли сторон // Международное частное право. Современные проблемы. М., 1994. С. 177.
  8. Покровская А.Б. Соглашение о праве, применимом к частноправовым отношениям, осложненным иностранным элементом: дис. … канд-та юрид. наук. М., 2006. 109.
  9. Кисіль В.І. Механізм колізійного регулювання в сучасному МПрП. С. 31.
  10. Осокина Г.Л. Гражданский процесс. Общая часть. М., 2003. С. 25.
  11. Стрельцова Е.Г. Автономия воли в гражданском процессе // Российский ежегодник гражданского и арбитражного процесса. 2002-2003. № 2 / под. ред. В.В. Яркова. СПб., 2004. С. 47 -56.
    THE PRINCIPLE OF PARTY AUTONOMY IN IMPLEMENTING AUTONOMOUS COMPLEX CODIFICATION OF PRIVATE INTERNATIONAL LAW
    In this article, the position of autonomy of the will in implementing autonomous complex codification of private international law in the Republic of Uzbekistan, the significance of the present institute in formation of norms of private international law are analyzed basing on legislation of different countries and doctrinal approaches of scholars. According to the author, the principle of autonomous will, being one of the important principles of implementing complexity in codification of private international law, considers wide context of implementing party autonomy of modern codifications in private international law. Thus, they effectively fulfill one of the main objectives of legislative sphere to regulate private legal relationships.
    Written by: Rakhmankulova Nilufar Xodji-Akbarovna
    Published by: Басаранович Екатерина
    Date Published: 12/17/2016
    Edition: euroasia-science_6(27)_23.06.2016
    Available in: Ebook