International Private Law Final Attestation Notes

State Immunity

  • Absolute Immunity:
    • Originates from the idea that courts cannot hear claims against a foreign state without its consent.
    • A foreign state enjoys immunity only while exercising its sovereign functions.
    • If a state conducts business, it may not enjoy immunity.
  • Functional Immunity:
    • Limited state immunity implies that applying to the court with a claim against the State requires the State's prior consent.

Foreign Trade Transaction Criteria

  • A transaction is considered a foreign trade transaction if:
    • Goods cross state borders.
    • Parties are companies from different countries.
    • Payment is made in a foreign currency.

Personal Law of a Legal Entity (According to the Civil Code of the Russian Federation)

  • Determined by:
    • Incorporation of the legal entity
    • Location of the legal entity
    • Place of business of the legal entity
  • The following criteria are not applied:
    • Personal law of a shareholder
    • Place of tax registration
    • Place of business activity

Representative Office of a Foreign Legal Entity in the Russian Federation

  • Must obtain accreditation to operate.

Vienna Convention on Contracts for the International Sale of Goods (1980)

  • Applies to contracts for the sale of goods made by parties:
    • Whose businesses are in different states.
    • Whose personal law is the law of different states.
    • Which are legal entities registered in different states.

Foreign Legal Entity and Guarantees to Foreign Investors

  • A foreign legal entity may be deprived of guarantees if:
    • It is found to be under the control of a Russian legal entity.
    • It has become a member of a Russian business corporation.
    • There are Russian individuals or legal entities among its participants.

Applicable Law

  • Definition:
    • National law governing relations between parties complicated by a foreign element.
    • The rule of choice of applicable law for the regulation of substantive law.
    • Not a rule of choosing the applicable law for procedural law.

Choice of Law in Contracts

  • Parties can stipulate that the prescription period is determined under a different law than the main contract law.
  • Example: Subordinating a contract to English law while stipulating that the prescription period is determined under Russian law is permissible.

Property Classification (Movable and Immovable)

  • Governed by the law of the country where the property is located.

Transmission of Ownership

  • Example: An individual entrepreneur from Russia purchases coffee from a German entrepreneur, loaded on a ship coming from Brazil. The transmission of ownership is determined by the law of Brazil.

Changing Applicable Law

  • Parties cannot change the law applicable to:
    • The agreement as a whole
    • The transaction form
    • They can change the part of the agreement.

Liability for Debts of a Legal Entity

  • The possibility of imposing liability for the debts of a legal entity on its founders (participants) is determined by the law of the State where the legal entity is established.

State Immunity

  • A State may invoke immunity:
    • In the courts of a foreign state
    • In arbitration courts
    • Not in the courts of its own country.

Nationalization

  • Is a legitimate action only if it is based on an international treaty; otherwise, it's an illegal action.

Intellectual Property Rights

  • Are territorial by nature, i.e., they are protected on the basis of international agreements.

Parallel Import

  • Import of original goods to the territory of another state in the absence of a license agreement with the copyright holder.

Restrictions on Changing Applicable Law in Contracts

  • The parties to the contract cannot change the law applicable to the contract as a whole.

Foreign Legal Entity Recognition as a Foreign Investor (Russian Law)

  • A foreign legal entity is not recognized as a foreign investor if:
    • The number of its participants includes a citizen of the Russian Federation and (or) a Russian legal entity.
    • It is controlled by a citizen of the Russian Federation and (or) a Russian legal entity.
    • There are citizens of the Russian Federation or a Russian legal entity among its participants.

Intellectual Property Protection

  • Well-known trademarks are protected in other countries without registration according to the Paris Convention for the protection of industrial property rights.
  • To protect intellectual property rights in another state, no application or registration is required for a trade name.
  • A patent and a trademark are subject to mandatory registration in all countries.
  • Example: A French author died in 1960. In Russia, his work was published without the consent of his heirs. Copyright is violated, because in the Russian Federation the term of protection is 70 years after the author's death.

Investment Arbitration Tribunals

  • Adjudicate disputes between the investor and State.

Choice of Law for Obligations Arising from Tort

  • The parties may choose, by agreement, the law applicable to the obligation arising from tort only after the harm was done.

Exemptions from the National Regime for Foreign Investors

  • May be restrictive and stimulating.

Approval of Transaction by Legal Entity Bodies

  • The need for approval of the transaction by the bodies of the legal entity (for example, by the General meeting of shareholders) is determined by the law of the State where the legal entity is established.

Qualification of Legal Concepts

  • Russian law is to be applied in every case when qualification of legal concepts is needed.
  • If, when determining the law to be applied, the legal concepts requiring qualification are not known to Russian law or are known in a different verbal designation or with a different content, then foreign law may apply to their qualification.

Copyright Protection in Another Country

  • Does not require special actions in that country.

Concept of Property

  • Covers movable and immovable things, claims, debts, and intellectual property rights.