The New Civil Code of the Russian
Federation and Private International Law
Viktor P. Zvekov”
The author traces the legislative activity surrounding
the formulation of rules on private international law in the
new Civil Code of the Russian Federation (“C.C.R.F.”).
Many of the previously existing rules on conflict of laws
have been repealed as part of the process of legal recon-
struction subsequent to the breakdown of the U.S.S.R.
While they have been repealed, nothing comprehensive has
taken their place. The lack of provisions on private interna-
tional law for a society that is exposed to so many foreign
actors has obvious implications.
The author examines the state of the law regarding
foreign trade transactions and the various formal validity
requirements surrounding such agreements. While there is
a general invalidation of transactions that fail to meet the
prescribed written form, it is observed that there is no
longer any legislative guidance regarding the signing pro-
cedure of such agreements. Thus, a prohibition exists, but
the means to avoid its invalidating effect are unknown.
The article broaches the issue of the State’s status in a
matter involving a conflict of laws, and the role that immu-
nity might play in private international law. International
treaties are also examined. In general, the author outlines
the kinds of norms which should animate Russian rules on
conflict, and concludes that the principle of proximity
should always prevail.
Throughout the essay, the author highlights a recur-
ring tension in the development of Russian private interna-
tional law. On the one hand, there are numerous specific
areas of legislation (e.g. family law, commercial law, etc.)
which have certain rules on disputes over jurisdiction and
applicable laws. On the other hand, there is a movement for
an overarching set of principles on private international law
to be consolidated within the C.C.R.F. The author proposes
that both can be done: general principles can be expressed
in the C.C.R.F. while legislation in specific areas could
have their own rules on private international law.
L’auteur retrace le dtveloppement 16gislatif entourant
la formulation des r~gles de droit international priv6 dans le
nouveau Code civil de la Fddiration nisse. Plusieurs rfgles
rdgissant les conflits de lois ont 6t6 abrogdes lors du pro-
cessus de reconstruction l6gale survenu ?s la suite du d6-
membrement de I’U.R.S.S. Alors que les r~gles ont 6t6
abrog es, rien de significatif ne les a remplactes. Les con-
sdquences de l’absence de dispositions de droit internatio-
nal priv6 dans une socidt6 expos6e s tant d’acteurs 6tran-
gers sont 6videntes.
L’auteur examine l’6tat de ]a loi conccmant les trans-
actions d’6change international et les diverses formalit6s
n&cessaires is la validit6 de tels accords. Alors que les trans-
actions qui ne sont pas dans la forme 6crite prescrite sont
invalides de faqon gdndrale, il n’y a aucune balise 16gisla-
tive explicitant la proc&lure de signature de ces conven-
tions. Ainsi, si une interdiction gdn~rale existe, les moyens
pour l’6viter sont inconnus.
L’article dvalue la position de I’ltat dans une affaire
concemant un conflit de lois, mais aussi le r8le que pourrait
jouer l’immunit6 6tatique en droit international priv6. Le
rtle des traites internationaux y est aussi 6tudi. D’une ma-
nitre g~ntrale, i’auteur expose les types de normes qui de-
vraient r~gir les rigles de conflit russes et conclut que le
principe de proximit6 devrait toujours pr6valoir.
Tout au long de l’article, l’auteur souligne une ten-
sion r6currente dans le d6veloppement du droit internatio-
nal priv6 russe. D’une part, il existe plusieurs domaines
specifiques de Idgislation (par exemple le droit de la fa-
mille, le droit commercial, etc.) qui poss~tent des rigles
sur la contestation de compdtence et des lois applicables.
D’autre part, il existe un mouvement ddsirant intdgrer au
sein du Code une sdrie de principes notoires de droit inter-
national priv. L’auteur propose que les deux avenues sont
r-alisables: les principes gdndraux peuvent Etre formulds
dans le Code, alors que la l6gislation rdgissant des domai-
nes spdcialisds pourrait avoir ses propres rigles de droit
international priv6.
Ph.D. (Law), Honorary Lawyer of the Russian Federation.
McGill Law Journal 1999
Revue de droit de McGill 1999
To be cited as: (1999) 44 McGill L.J. 525
Mode de r6fdrence: (1999) 44 R.D. McGill 525
526
MCGILL LAW JOURNAL/ REVUE DE DROITDE MCGILL
[Vol. 44
I. The Background to Private International Law in Current Russian
Legislation
II. Foreign Transactions and the Signing Requirement: An Example
Ill. Article 127 and the Law Applicable to the State
IV. The Role of International Treaties
V. Toward a Civil Code Section on Private International Law
Conclusion
References
1999]
VP ZVEKOV – THE C.C.R.F & PRIVATE INTERNATIONAL LAW
527
I. The Background to Private International Law
in Current
Russian Legislation
The Russian Federation, like some other countries, has no special legislation on
private international law and international civil procedure. Rather, rules on conflict of
laws and other legal norms regulating private international legal relations are dealt
with primarily in legislative acts of specific branches of law-e.g. family law, com-
mercial law, etc. Over the past few years, the number of codified acts consolidating
relevant legal norms in the Russian Federation has significantly increased. For exam-
ple, on March 1, 1996, the new Family Code of the Russian Federation’ came into ef-
fect. Section 7 of this Code regulates the application of family law rules to relations
involving foreign citizens and stateless persons. In addition, on July 1, 1995 the new
Code of Arbitration Procedure of the Russian Federation’ came into effect. Articles
12 and 210 through 215 of this Code regulate the application of foreign law by state
courts of arbitration, as well as the judicial proceedings in cases involving foreign per-
sons. In 1993, a law on international commercial arbitration was developed and
adopted on the basis of the 1985 Model Law on International Commercial Arbitra-
tion adopted by the United Nations Commission on International Trade Law
(UNCITRAL).
4
Russian federal law makes reference to private international law to define partici-
pants in foreign trade transactions.! For example, Russian participants are defined as
legal persons established in accordance with the legislation of the Russian Federation
that are permanently located in its territory, andlor physical persons who permanently
or usually reside in the Russian Federation and are registered as individual entrepre-
neurs. Foreign participants are defined as legal persons whose civil legal capacity is
determined according to the law of the foreign country where such legal persons were
established, as well as citizens and permanent residents of foreign countries as deter-
mined by their own national laws.
Russian legislation related to private international law and international civil pro-
cedure is developing in compliance with Chapter 2 of the 1993 Constitution of the
Russian Federation: “Rights and Freedoms of the Human Being and Citizen” The
Constitution defines the rights and freedoms of a person as vested in everyone by
virtue of birth, and considers them to be inalienable.’ In this respect, the Constitution
‘ Sobranie zakonodatelstva R.E (1996) No. 1, item 16.
2 Sobranie zakonodatelstva R.E (1995) No. 19, item 1709.
‘ Federal law On International Commercial Arbitration, Vedomosti S”ezda Narodnykh Deputatov
R.E i Verkhovnogo Soveta R.E (1993) No. 32, item 1240.
4UN Doc. A/40/17 (1995), reprinted in 24 I.L.M. 1302.
5 In particular, the Federal law On State Regulation of Foreign Trade Activities, Sobranie zakono-
datelstva R.E (1995) No. 42, item 3923 employs categories of private international law to define par-
ticipants in foreign trade transactions.
6 Constitution of the Russian Federation, art. 17(2).
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
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relies on the natural character of such rights and freedoms. This conception of rights
is reflected in the first words of the constitutional rules: “every person has the right,”
“every person is guaranteed:’ and “every person may”. Such phrases “emphasize that
the specified rights and freedoms are acknowledged as belonging to any person re-
siding in Russia, be that person a citizen of the Russian Federation, a foreigner, or a
stateless person.”‘
By its recognition of equality and its declaration of rights and freedoms, the Con-
stitution envisages a legal system which will provide the foundation for the realization
of these guarantees at a level consistent with international standards. Closely related
to this goal is the renewal of Russian civil law rules relating to conflict of laws and
private international law.’
While the adoption of Parts 1 and 2 of the Civil Code of the Russian Federation9
was a significant achievement, the codification of Russian civil law has yet to be
completed. The draft of Part 3 of the C.C.R.F-which includes a section on private
international law-at the time of writing this article is still pending submission to
Parliament. Methodologically speaking, existing provisions of the C.C.R.E will un-
doubtedly be relied upon as foundational materials for the development of federal
laws and other pieces of civil legislation. Through this process, it is hoped that greater
consistency and seamlessness between the larger civil law and the C.C.R.E might be
achieved.
At the outset of the codification process, drafters unanimously agreed that con-
cepts relating to private international law would not be excluded from the general
framework of civil legislation. Rules relating to conflict of laws and private interna-
tional law are to be incorporated into Part 3 of the C.C.R.F. The fact that these rules
are not incorporated in the introductory sections should not be construed as a denial of
their importance or any sort of tacit attempt to maintain the traditions of the former
Soviet era. On the contrary, the consensus seems to be that any reference to the tradi-
tions of the former regime would not be appropriate.”
‘E.A. Lukasheva, ed., The General Theory of Human Rights (Moscow, 1996) at 32.
‘This can be seen in the Fundamentals of Civil Legislation of the U.S.S.R. and Union Republics,
Vedoinosti S”ezda Narodnykh Deputatov S.S.S.R. i Verkhovnogo Soveta S.S.S.R. (1991) No. 26, item
733 [hereinafter Fundamentals], as well as in the 1964 Civil Code of the Russian Soviet Federated
Socialist Republic, Vedomosti S”ezda Narodnykh Deputatov R.E i Verkhovnogo Soveta R.E (1964)
No. 24, item 406 [hereinafter 1964 Civil Code].
Part I was enacted in 1994: Sobranie zakonodatelstva R.E (1994) No. 1, item 3301; and Part 2
was enacted in 1995: Sobranie zakonodatelstva R.E (1996) No. 5, item 410 [hereinafter C.C.R.F].
For the English-language translation, see RB. Maggs & A.N. Zhiltsov, eds., The Civil Code of the
Russian Federation, trans. P.B. Maggs & A.N. Zhiltsov (Armonk, N.Y.: M.E. Sharpe, 1997).
‘G It is typical of many European and Latin American countries to place the entire body of conflict
of laws rles in the introductory sections of the relevant civil codes. However, the Civil Codes of
Louisiana (Book 4) and of Quebec (Book 10) demonstrate a different approach.
1999]
VP ZVEKOV – THE C.C.R. F & PRIVATE INTERNATIONAL LAW
529
The C.C.R.F. will become a cornerstone of profound change in Russian society.
Part of this change will stem from the definition of “civil law”, which is provided for
in Part 1 of the C.C.R.F. Part 1 provides a comprehensive framework for the develop-
ment of rules for a civilized market and, more generally speaking, for the revival of
private law. Furthermore, the conceptual framework of this section-its principles and
rules-will be maintained in the Part 3 rules pertaining to conflict of laws and private
international law. The C.C.R.F. will thus maintain and promote the fundamental prin-
ciples set forth in the foregoing sections, facilitating their further development and
application to relations involving an international element. The ideology and orienta-
tion of the draft section on private international law will, to a large extent, depend on
the content of Parts 1 and 2 of the C.C.R.F., and primarily on those legal norms that
pertain to the fundamental concepts of civil legislation, namely, the equality of parties
in civil transactions, the free will and self-sufficiency of the parties, the freedom of
contract, the inadmissibility of arbitrary intervention in private affairs, and mandatory
judicial remedies for the violation of civil rights.
Despite the obvious importance of the section devoted to private international law
within the structure of the C.C.R.F., innovations in this sphere will not be limited to
the provisions of this section. A number of basic legal principles in Part 1 of the
C.C.R.F. directly regulate issues pertaining to private international law. For example,
article 2(1)(iii) C.C.R.F. stipulates that rules established by civil legislation, unless
otherwise provided for by a federal law, will apply to relations involving foreign citi-
zens, stateless persons, and foreign legal persons. For the first time, Russian civil leg-
islation asserts a wide and equal scope of authority on both foreign and national sub-
jects of law. The rules, moreover, do not apply only to foreign citizens and stateless
persons, but also to foreign legal persons whose legal status was previously deter-
mined in special legal acts and was contingent on particular spheres of activities. In
addition, the principle of equal treatment extends to the entire set of civil law rules,
with the exception of such provisions as may be established by federal laws and-as
it follows from article 7 C.C.R.F.-by international treaties of the Russian Federation.
II. Foreign Transactions and
the Signing Requirement: An
Example
At one time, failure to execute a relevant document in the prescribed form may
have resulted in a foreign trade transaction being declared invalid.” The new C.C.R.F.
does reproduce some of the formal requirements of the former legislation, but not to
the same extent. It may be useful at this point to compare some of the requirements of
the old law with those of the new.
“The Fundamentals sets out requirements of form for foreign trade transactions. Art. 162(3) states
that “a foreign trade transaction may be declared invalid because of a failure to adhere to the simple
written form prescribed for such transactions:’ This piece of legislation simply refers to formal (as
opposed to substantive) requirements respecting these transactions.
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Articles 45 and 565 of the 1964 Civil Code imposed several requirements of form
in relation to the execution of foreign trade transactions with Russian legal persons.”
The new C.C.R.F. does not reproduce these requirements, nor does it expressly state
what consequences will result from a failure to comply with the former procedures.
The Fundamentals,’3 however, does stipulate that failing to adhere to particular formal
requirements will invalidate a foreign trade transaction.”‘
The procedures for signing foreign trade transactions described in articles 45 and
565 of the 1964 Civil Code were mandatory in character and they applied to Soviet
organizations regardless of where the transaction was concluded.” One such proce-
dure stipulated that any foreign trade transaction concluded by an authorized Soviet
organization was to be signed by two persons.” With the passage of the Fundamen-
tals, these procedures were nullified to the extent that they were inconsistent with the
Fundamentals.’7 Subsequent to the passage of the Fundamentals, the procedure that
applied to Soviet legal persons signing foreign trade transactions came to be regulated
by general rules based on the relevant stipulations of the constitutive transaction
documents.
Some have questioned whether the aforementioned formal requirements'” (“the
old rules”) would continue to be applicable to those foreign trade transactions entered
into prior to the passage of the Fundamentals (“the new rules”). For example, where a
Russian contractor violated the old rules, would the old rules continue to apply to
those cases notwithstanding the fact that they were no longer the law? This question
would appear to be confused by the passage of the Federal law On Bringing into Ef-
fect Part I of the Civil Code of the Russian Federation, which declared section 1 of the
2 These requirements applied regardless of the location where the given transaction was concluded.
‘ Supra note 8.
‘4 Fundamentals, art. 30 stipulates that the “failure to adhere to the form established for foreign
trade transactions entails invalidation thereof.” Art. 165 states that “the form of foreign trade transac-
tions concluded by Soviet legal persons and citizens is defined by legislation of the Union of Soviet
Socialist Republics, regardless of the place where the said transactions were concluded” Note that
neither of these articles provide for a special procedure for the signing of foreign trade transactions.
” Special resolutions of the U.S.S.R. government established the mandatory character of these arti-
cles.
6 Resolution No. 122, most commonly referred to as “The Resolution on Two Signatures” stipu-
lated that
foreign trade transactions concluded by authorized Soviet organizations are to be
signed by two persons. Unless otherwise provided for by the charter of an organization,
the right to sign such transactions is conferred on the director and deputy director of the
specified organization, directors of companies comprising the organization, and
authorized persons issued with powers of attorney personally signed by the director of
the organization.
“The Fundamentals came into effect in the Russian Federation on August 3, 1992. Thus, arts. 45,
565 of the 1964 Civil Code and Resolution No. 122 were invalidated on that date.
” The procedures being those as articulated in arts. 45, 565 of the 1964 Civil Code and Resolution
No. 122.
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VR ZVEKOV – THE C.C.R.F & PRIVATE INTERNATIONAL LAW
531
“General Provisions” of the 1964 Civil Code invalid as of January 1, 1995. At least
one ruling of the International Commercial Arbitration Court has considered the
question of the applicability of the old rules and it appears that the new rules are to
apply regardless of the date of conclusion of the transaction.
Ill. Article 127 and the Law Applicable to the State
Where the Russian Federation enters relations that are governed by civil legisla-
tion, the law applicable to the State is essentially the same as the law applicable to
citizens and legal persons.” This is not necessarily the case for foreign legal persons,
citizens, and states; relations between the Russian State and foreign entities are in-
formed by article 127 C.C.R.F., which specifies the nature of the State’s responsibility
relative to situations involving civil legislation and foreign legal persons, citizens and
States. Article 127 states:
The peculiarities of liability of the Russian Federation and subjects of the Rus-
sian Federation in relations regulated by civil legislation with the participation
of foreign legal persons, citizens, or states shall be determined by the statute on
the immunity of the state and its property.
Normally, relations between the Russian Federation and foreign entities would be
defined in a law detailing the immunity of the State and its property. Article 25 of the
Fundamentals provides for the development and adoption of such a law. However,
this work was not completed because of the collapse of the U.S.S.R. Similarly, the
rule stipulated in article 127 C.C.R.F. has not been implemented.
There are several concerns with respect to future development of the law in this
area. First, it seems necessary to resolve the question of how several provisions of
relevant laws in this area might be harmonized. For example, laws relating to suits
against a foreign state’s diplomatic immunity,2′ immunity of the State,’ product shar-
ing agreements,’ and jurisdictional immunity24 all require harmonization.
Next, it would also seem appropriate to mention that the provisions of article 435
C.C.P. are based on the principle of absolute immunity of a foreign state, and on the
19 This included the provision of art. 45 of the 1964 Civil Code which had already been “super-
ceded” by the provisions of the Fundamentals.
‘ Art. 124 C.C.R.F. provides that the Russian State may enter into relations that are regulated by
civil legislation on the same basis as may its citizens and legal persons. In these circumstances, the
State is governed by the norms appliable to legal persons unless otherwise provided for by law.
,” Art. 435 of the Code of Civil Procedure of the Russian Federation, Vedomosti S”ezda Narodnykh
Deputatov R.E i Verkhovnogo Soveta R.E (1964) No. 24, item 407, as am. by Sobranie zakonodatel-
stva R.E (1995) No. 49, item 4696 [hereinafter C.C.E]: “Suits Against Foreign State’s Diplomatic
Immunity.”
2 Art. 23 C.C.P.: “Immunity of the State’
Federal law On Product Sharing Agreements, Sobranie zakonodatelstva R.F (1996) No. 1, item
18.
2′ Art. 213 of the Code ofArbitration Procedure of the Russian Federation, supra note 2.
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MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 44
demand for an appropriate treatment of “the Soviet State, its property or representa-
tives of the Soviet State’ According to article 213 of the Code of Arbitration Proce-
dure of the Russian Federation,” to file a suit in a court of arbitration against a foreign
state or to take various other measures”6 against a foreign state, it is necessary to have
the consent of authorized bodies of that foreign state unless Russian federal laws or
international treaties of the Russian Federation provide otherwise. Russian federal law
also stipulates that product sharing agreements concluded with foreign citizens or for-
eign legal persons may include the right of the State to renounce its jurisdictional im-
munity or immunity against seizure of property in order to ensure the execution of a
court of arbitration ruling.”
IV. The Role of International Treaties
What is the relationship between international treaties of the Russian Federation
and domestic Russian law? International treaties are mentioned in the “General Pro-
visions” of Part 1 of the Civil Code. These provisions state that generally accepted
principles and norms of international law, constitutionalism, and international treaties
signed by the Russian Federation constitute an integral part of its legal system.’
Futhermore, it is a constitutional rule that where there is a conflict between interna-
tional treaties and domestic civil legislation, the rules of the former prevail.”
As far as contracts are concerned, Russian law recognizes the well-known divi-
sion of contracts into contracts of direct and indirect application.’ The former are di-
rectly applied to relations governed by civil legislation, while the latter require the
adoption of certain inter-state acts.
In relation to the judicial consideration of international treaties, Russian federal
law states that courts must consider provisions of officially published international
treaties to ensure those provisions are directly applied in the Russian Federation.’
Courts, however, do not appear to be compelled to consider the application of inter-
national treaty provisions that are contingent on certain internal state acts. In such cir-
2 Ibid.
6 Such other measures include involving a foreign state in a law suit as a third party, seizing prop-
erty which is located in the territory of the Russian Federation, and enforcing a foreign judgment
against such property.
27 Federal law On Product Sharing Agreements, supra note 23.
“Art. 7 C.C.R.F.
23 Constitution of the Russian Federation, art. 15(4): “If an international treaty of the Russian
Fedeartion establishes rules other than those established by the law, the rules of the international treaty
shall apply”
” Both the C.C.R.F and the Federal law On International Treaties of the Russian Federation, So-
branie zakonodatelstva R.E (1995) No. 29, item 2757 recognize this division.
” Resolution No. 8 of the Plenary Session of the Supreme Court of the Russian Federation “On
Certain Issues Concerning the Application of the Constitution of the Russian Fedearation by Courts
When Administering Justice” (31 October 1995). See also the Federal law On International Treaties
of the Russian Federation, ibid., art. 5(3).
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VP ZVEKOV – THE C.C.R.F & PRIVATE INTERNATIONAL LAW
533
cumstances, an international treaty should be applied in conjunction with the appro-
priate intra-state implementation act.
V. Toward a Civil Code Section on Private International Law
Significant steps have been taken to develop the section in the C.C.R.F. devoted to
private international law. A draft of this section was tabled by the Research Centre for
Private Law on November 30, 1996. Russian and foreign experts have since offered
several comments which have resulted in several amendments. This process of
amendment and the resulting text have, to some extent, been influenced by the private
international law provisions of the Model Civil Code. 2 Many of these provisions were
incorporated in the draft of Part 3 of the C.C.R.F.3
The development of a Russian approach to dealing with conflict of laws is an ex-
tremely important component of the codification process. Generally speaking, current
developments show that the draft will include a general conflict rule which will be
subject to specific application. Such a rule will obviously create difficulties for law
enforcement agencies. However, the reasoning underlying this approach is an attempt
to avoid a legal vacuum by identifying the best solution in a given situation. In this re-
spect, drafters seem to have succeeded in making conflict rules more flexible in terms
of their application.
In the absence of an agreement between the parties as to applicable law, the obli-
gations under the agreement would be subject to the law of the country most closely
related to the agreement. Unless otherwise provided for in the agreement, the applica-
ble law is deemed to be the place of residence or primary place of business of the
party whose performance is deemed decisive for the content of the agreement. It
should be noted that the Russian draft defines the concept of a party “whose perform-
ance is deemed as decisive for the content of an agreement.”
Development of the framework of conflict regulation has resulted in an increase
in the number of conflict rules. New rules include provisions applicable to obligations
arising from unilateral actions, to obligations resulting from the infliction of harm on
consumers, and to intellectual property rights.
Some conflict rules on unilateral actions are treated as bilateral norms. Examples
of such rules are the provisions applicable to rights and obligations under obligations
resulting from the infliction of harm abroad (provided that the relevant parties are citi-
zens or legal persons of one and the same state), and provisions applicable to the in-
heritance of immovable property.
2 A Model Civil Code [hereinafter Model Code] was developed under the asupices of the Com-
monwealth of Independent States Research and Consulting Centre for Private Law. The Model Code
was subsequently approved by the Interparliamentary Assembly of the Member-States of the Com-
monwealth of Independent States. The Model Code includes s. 7: “Private International Law” as well
as sections on intellectual property and inheritance law.
3’3The Russian-language draft of the private international law section is nearing completion.
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In defining the status of obligations under an agreement, both the Model Code
and the draft of Part 3 of the C.C.R.F have rejected a dualistic approach (i.e., a “dou-
ble standard” approach). Unlike the Fundamentals that envisage different conflict
rules for defining the rights and obligations of parties to foreign trade transactions’
and those of parties to transactions that do not fall into the category of foreign trade
transactions,” the Model Code and the draft of Part 3 propose the introduction of uni-
form conflict rules whereby the status of an obligation under an agreement will be
subordinate. However, conflict regulation still retains all of the former differences
with respect to the form of foreign trade and other types of transactions.
Both the Model Code and the draft of Part 3 refer to a wide range of legal trans-
actions. For example, matters such as the interpretation of agreements, rights and ob-
ligations of parties to an agreement, performance of agreements, consequences of
non-performance or improper performance of agreements, termination of agreements,
consequences arising from an agreement declared null and void or invalid, the as-
signment of claims, and the transfer of debts under an agreement can all be found in
these two documents.
The Model Code and the draft of Part 3 allow parties to an agreement to choose
applicable law, either with respect to the entire agreement or specific parts thereof.
Both the Model Code and the draft of Part 3 contain opening general provisions
which give rise to the following observations: first, never before has the national leg-
islation incorporated in such detail so many of the general concepts of private interna-
tional law. Second, the general provisions in the Model Code and the draft of Part 3
include principles that were incorporated in the national legislation (i.e., the definition
of the content of a “foreign law” and the public order clause) as well as those that
were primarily referred to within the doctrinal framework (i.e., qualification of the le-
gal concepts of the conflict rule and of the imperative norm, which restricts the appli-
cation of conflict rules).
Issues related to the application of imperative norms in private international law
were reflected in the 1980 Rome Convention”6 of applicable legal obligations arising
from an agreement, in some international treaties, and in a number of foreign legisla-
tive acts. The introduction of the relevant norms in Russian legislation would be con-
tingent on a determination of the scope of applicable imperative norms. The task of
the legislature and experts is to provide guidelines to facilitate that process. The
wording of applicable imperative norms proposed by the Russian draft of Division 7
of Part 3 of the C.C.R.E seems to meet the specified requirements more precisely than
the Model Code. The proposed imperative norms-as a result of directives in a norm
itself or in view of their particular significance in ensuring the rights and lawfully
” Fundantentals, art. 166.
“Ibid., art. 165(2).
36 EC, Council Convention on the Law Applicable to Contractual Obligations [1980] O.J. L.
23/1492.
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VP ZVEKOV – THE C.C.R.E & PRIVATE INTERNATIONAL LAW
535
protected interests of participants in the usual course of business-regulate the perti-
nent relations regardless of the applicable law.
The Model Code and the draft of Part 3 propose to categorize legal concepts in
accordance with the law of the country of the court, unless otherwise stipulated by
law. However, the draft of Part 3 contains a significant clarification in making a de-
termination of applicable law. On the whole, this innovation cannot be regarded as in-
disputable, especially in light of the possibility provided by the national doctrine to
offer an independent categorization of the concepts constituting the scope of a conflict
rule on the basis of the fundamental principles of comparative jurisprudence.
Another block of rules included in the Model Code and the draft of Part 3 pertain
to the legal status of foreign citizens, stateless persons, and foreign organizations. The
principal distinction of the rules can be seen in a number of areas. First, the Russian
draft introduces the concept of personal law which-pursuant to article 62(1) of the
Constitution of the Russian Federation-takes into account the possibility of dual
citizenship. The personal law of a physical person is considered the law of the per-
son’s state of citizenship. A citizen who holds foreign citizenship along with Russian
citizenship is personally governed by Russian law. If a person holds several foreign
citizenships, the applicable law is the law of the State where the person is most
closely connected. The personal law of a permanent resident is the law of the State
where the person resides. The personal law of refugees is the law of the State provid-
ing asylum.
Second, following the rule set forth in article 2(1) C.C.R.F., the draft provides for
equal legal status to foreign citizens, permanent residents, and Russian citizens with
respect to civil rights and obligations. The draft applies to foreign legal persons in-
volved in entrepreneurial and other activities in the territory of the Russian Federa-
tion. The respective provisions on the national regime for the activities of foreign citi-
zens, permanent residents, and foreign legal persons are included in the Model Code.
Third, with the exception of personal law, the Model Code and the draft of Part 3
introduce and define the concept of a legal person. Fourth, both the Model Code and
the draft of Part 3 contain provisions that establish the capacity of a foreign citizen or
permanent resident to be an individual entrepreneur. This provision refers to the law
of the State where the person is registered as an individual entrepreneur. In the in-
stances where this law cannot be applied-in view of the absence of a mandatory
registration requirement-the law of the State which is the primary place where the
entrepreneurial activity is performed is applied.
Fifth, the draft of Part 3 of the C.C.R.F. introduces provisions that were previ-
ously unknown to legislation of the Russian Federation, namely those referring to the
legal status of a foreign organization which is not a legal person according to foreign
law but which is thereby recognized as a subject of law. The personal law of such or-
ganizations is the law of the State where said organizations are registered, and the ac-
tivities of such organizations will be governed by those provisions of the C.C.R.F. that
govern the activities of legal persons, unless otherwise provided for by a statute, other
legal acts, or the nature of the legal relations.
536
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 44
Conclusion
The inclusion of private international law in the draft of Part 3 of the C.C.R.F.
would not signify the renunciation of the idea of developing a special section on pri-
vate international law. The subject matter of such law could be represented by the
general institutions of private international law whereas legislative acts in specific
branches of law could incorporate provisions regulating civil, family, labour and pro-
cedural relations with a foreign element.
1999]
VP ZVEKOV – THE C. C. R. F & PRIVATE INTERNATIONAL LAW
537
References
Legislation
Civil Code of the Russian Federation, Part 1: Sobranie zakonodatelstva R.F (1994)
No. 32, item 3301; Part 2: Sobranie zakonodatelstva R.E (1996) No. 5, item 410.
Civil Code of the Russian Soviet Federated Socialist Republic, Vedomosti S”ezda
Narodnykh Deputatov R.E i Verkhovnogo Soveta R.F (1964) No. 24, item 406.
Code of Arbitration Procedure of the Russian Federation, Sobranie zakonodatelstva
R.E (1995) No. 19, item 1709.
Code of Civil Procedure of the Russian Federation, Vedomosti S”ezda Narodnykh
Deputatov R.F i Verkhovnogo Soveta R.E (1964) No. 24, item 407, as am. by Sobra-
nie zakonodatelstva R.E (1995) No. 49, item 4696.
Constitution of the Russian Federation, as approved by popular referendum on 12
December 1993. Effective date: 25 December 1993.
Family Code of the Russian Federation, Sobranie zakonodatelstva R.E (1996) No. 1,
item 16.
Federal law On International Commercial Arbitration, Vedomosti S”ezda Narodnykh
Deputatov R.E i Verkhovnogo Soveta R.E (1993) No. 32, item 1240.
Federal law On International Treaties of the Russian Federation, Sobranie zakono-
datelstva R.E (1995) No. 29, item 2757.
Federal law On Product Sharing Agreements, Sobranie zakonodatelstva R.E (1996)
No. 1, item 18.
Federal law On State Regulation of Foreign Trade Activities, Sobranie zakonodatel-
stva R.E (1995) No. 42, item 3923.
Fundamentals of Civil Legislation of the U.S.S.R. and Union Republics, Vedomosti
S”ezda Narodnykh Deputatov S.S.S.R. i Verkhovnogo Soveta S.S.S.R. (1991) No. 26,
item 733.
International Conventions
Council Convention on the Law Applicable to Contractual Obligations [1980] O.J. L.
23/1492.
Model Law on International Commercial Arbitration, UNCITRAL UN Doc. A/40/17
(1995), reprinted in 24 I.L.M. 1302.
Books
Lukasheva, E.A., ed., The General Theory of Human Rights (Moscow, 1996).
Maggs, P.B. & Zhiltsov, A.N., eds, The Civil Code of the Russian Federation, trans.
P.B. Maggs & A.N. Zhiltsov (Armonk, N.Y.: M.E. Sharpe, 1997).
