Ph.D., Associate Professor
Higher School of Law «Adilet»
of the Caspian University
Problems of the qualification of conflict rules in private international law
Qualification has great importance for all branches of law, since qualification is the basis for the subsequent application of the rules of law. Thefinalgoalof qualification is the correct interpretation and proper application of norms. For the law as a whole, it is important for it to be interpreted correctly and rationally. The process of law enforcement and its consequences will depend on the quality of interpretation of the norms of law. In a Large legal encyclopaedia interpretation of the rules of law is defined as the activity of state bodies, aimed at establishing the content of legal norms, on disclosing the expressed will of the legislator [1, c. 598]. The ultimate goal of interpretation can be called a correct interpretation and the correct applicationofthelaw.
Interpretation is a special kind of activity of state bodies, officials, citizens and their associations aimed at disclosing the semantic content of legal norms and on revealing the state will contained in them. The need for interpretation is caused by the fact that in the process of carrying out law enforcement activities [2, c. 614].
It should be noted that the problem of «interpretation» or «qualification» is especially acute in international private law. Withthequestionof qualification, the judge is faced throughout the process of applying the norms of private international law and by definition of the applicable law. At the stage of choosing the applicable law qualification (namely: primary qualification) it has its great importance, since, although the legal order regulating relations has not yet been chosen, the judge considers specific arising relations complicated by a foreign element and already operates with certain concepts contained in the scope and binding of the conflict rule, in the agreement of the parties, etc., the importance of which must be established and which must be evaluated. At the stage of applying the law directly regulating the legal relationship, the qualification (namely: secondary qualification) is important for clarifying and further establishing the contents of the norms of foreign law, if it is defined as applicable.
In order to apply the conflict of laws rules and choose the law to be applied, it is necessary first of all to interpret, to qualify the conflict of laws rule for clarification of the content of the legal concepts from which it consists, and their correlation with the actual circumstances to which it is to be applied. Sincethechoiceof law accompanies the process of regulating legal relations complicated by a foreign element, factual circumstances always exist in the law of different states. The law of different states differently regulates the same relationship, which means that it gives different legal qualifications. Therefore, there may be a conflict of qualifications. The resolution of this conflict and the choice of law, and, in the end, the resolution of the case on the merits, will depend on the legal concept of which state the conflicting rule will be interpreted.
Conflicting norms in the legislation of different countries can have a textually identical volume and binding, thus, have an «identical look». However, dueto «hidden conflicts» (different content of the same terms), the operation of the conflict rules of each legal system will provide «own», different from the others, regulation of the legal relationship [3, p. 102]. In this case, giving a general description of the qualification, the author of the above lines mixes the categories «qualification» and «establishing the content of the norms of law».
According to L.A. Lunts, the problem of the so-called conflict of qualifications is, in essence, a matter of interpreting the conflict of laws rules. Interpretationoftheconflict norm is often a very complicated matter, as the state, creating such a norm, cannot always accurately outline the range of all material laws (domestic and foreign), in conjunction with which the norm is called upon to regulate a certain sphere of social relations [4, c. 263]. V.L. Tolstykh believes that the primary qualification is the definition and interpretation of terms contained in the conflict of laws rules, as well as the elucidation of the legal nature of the relationship with the participation of a foreign element [5, p. 88]. Yu.A. Dorofeeva understands qualification as the definition of the meaning of the term, legal institution, legal concept by the court of foreign national law [6, p. 179].
In general, we define the primary qualification as an interpretation of the concepts contained in the conflict of laws rules, as well as the relationship between the concepts and terms of agreements of the parties, taking into account the actual circumstances of the case.
Forexample, incase No. 180/2003 (decision of the ICAC of 06.07.2004), the plaintiff insisted that the contract is a contract of transport expedition, and the defendant claimed that this contract is a contract of carriage. The Arbitration considered it necessary to investigate this issue. Taking into account the subject of the agreement, according to which the freight forwarder (the respondent), on behalf of the customer (the plaintiff), organized transportation and forwarding services for the transportation of the plaintiff’s cargo in international rail transport, and also taking into account the actual relations of the parties that they formed in the process of executing this agreement, The ICAC, taking into account the provisions of the Civil Code of the Russian Federation, considered it possible to qualify the contract of the parties as a contract of transport expedition [7, с. 259]. In case No. 102/1998 (judgment of 30.10.1998), taking into account the legal nature of the contract (credit) concluded by the parties, the ICAC was based on the issues of its conclusion on the provisions of the PGS 1991 (articles 113 and 114) and on the relevant norms of part one of the Civil Code of the Russian Federation. In interpreting the terms of the contract, the literal meaning of the words and expressions contained in it was taken into account, and if they were unclear, it was established by comparison with other conditions and the meaning of the treaty as a whole. If it is impossible to determine the content of the contract by the above-mentioned method, the Arbitration Court, using the criteria provided for by the Civil Code, has ascertained the actual general will of the parties, taking into account the purpose of the contract. In particular, the subsequent conduct of the parties was taken into account, expressed, including in both the additions to the agreement concluded by them, and in their correspondence [8, p. 200].
From the qualification will depend on the meaning of the concepts used in the conflict of laws rules. Itisaimedat interpreting elements of the conflict norm: volume and binding, each of which consists of certain legal concepts. And in the law of different states, the concepts that express volume and binding, which are often similar in sound, do not coincide in their meaning and content. This problem arises due to differences in the laws of different states and in connection with the emergence of collisions, conflicts of qualifications. In theory, as an example of such a phenomenon, the institution of limitation of actions, the determination of questions of form and content,and so on [9, с. 165].
Hence, qualification in its essence is an interpretation of legal concepts. Implementationofthenorms of the IPP, especially in the form of application, is possible only if the law enforcement understands the true content of the terms of the contract or the concepts of conflict of laws rules. For example, if we proceed from the generally accepted decision, according to which relations regarding immovable things are regulated by lex rei sitae, and relations concerning movable things are regulated by the personal law of the owner, in this case the choice of the applicable law will depend on whether a certain thing is recognized movable or immovable, and the further regulation of these relations will depend on the qualification, i.e. the definition and classification of things as movable or immovable. But to reduce the qualification only to an interpretation would not be entirely correct. Qualification in its essence is not only an interpretation, but also the definition and evaluation of legal concepts of conflict of laws norms and specific relations, which is important for the implementation of the norms of IPP, especially in the form of an application that is possible only if the law enforcement understands the true content of the terms of the contract or the concepts of conflict and material norm. Evaluation of the same legal concepts and specific relations should be carried out through the prism of legal concepts used in the scope and binding conflict of laws, practice and legislation of the country of the court, taking into account the legitimate interests of the parties.
In theory, it is noted that there are several «sensitive» border industries that often become a source of problems in the qualification of legal categories. Theseincludethebranches of inheritance and liability law, material and procedural law, family and property law. In addition, there is often a need to distinguish between the form and content of the legal relationship. An example of such a conflict is the situation when in accordance with lexfori, a particular thing is recognized as movable, and according to the legislation of the state to which lexfori refers as an applicable law, the same thing is recognized as immovable and many other examples.
Theoretical studies on this issue have led to the formation of three main doctrines that disclose certain ways of implementing qualifications. These are theories:
— autonomous qualification;
— Qualification by the law of the country with which the relationship is most closely connected (lexcausae);
— qualification by the law of the country of the court (lexfori).
The main question, which one or another theory tries to give its answer, is: According to the norms, what kind of law and what path should the qualification of legal concepts be carried out? Let us consider the main provisions of these doctrines.
The theory of autonomous qualification consists in an attempt to interpret the legal concepts used by the conflict norm, autonomously, i.e. regardless of the domestic law of the country. Supportersofthisdoctrine proceed from the fact that it is impossible to attach the same meaning to the legal concepts used in conflict rules as they have in the internal material civil law of this state, because the application of the conflict rule is associated with the need to properly qualify the legal institutions of different countries. The proposed autonomous qualification should be obtained in the order of generalization of the concepts of various interstate systems. Such a generalization can only be a product of comparative jurisprudence.
The legal terms denoting this or that institution, do not have any absolute value. Theirrealcontentis determined by the historical epoch, by the peculiarities of the historical development of this or that legislation, and by the accustomed usage in one or another state [10, p. 51]. There is an opinion that no legal system of concepts that are of a normative nature can exist in isolation from their sources. Accordingly, this legal system should eventually find its reflection in any legal act. However, the entire course of the development of conflict-legal regulation makes it possible to doubt that such an act will ever be adopted. In the absence of such an act, there remains the danger of discrimination against individual states as a result of the fact that the concepts developed in these states are not taken into account when developing general concepts. If even «uniform» conflict rules existed in all countries, the courts of different countries, guided by such «uniform» in external form rules and applying qualifications of their own right, would often come to different decisions on similar cases, because the legal qualifications of similar actual compositions according to the legislation of different countries may not coincide (due to differences in the concepts of substantive and procedural law). In addition, the creation (development) of generalized concepts is hardly advisable, since the norms of one country are created by the legislator of the given state, the features of this or that legal system are always displayed in them (even if there are moments of unification and harmonization of law). In the norm there is a special understanding of certain legal phenomena. Therefore, we can say that the existence of uniform norms can still lead to collisions due to a different approach to understanding legal concepts, conditioned by historical features, mentality, etc.
Thus, it can be argued that, to date, the implementation of the provisions of the doctrine examined in real practice is not possible. The concept of autonomous qualification can remain only a concept for a long time. Thehitchinimplementing the theses of this theory is precisely the inevitability and necessity of generalization of legal concepts, which, as already noted above, can only be the result of scientific comparative law. It seems that the generalized concepts obtained in the course of the comparative analysis can undoubtedly play a positive role, for example, in the sense of adopting the positive experience of law enforcement agencies of other countries, but they are unlikely to be universally binding. The court, arbitration, which for objective reasons cannot develop generalized concepts and carry out a comparative analysis of concepts found in different legal systems, are directly engaged in law enforcement.
It is correctly noted by Sh.M. Mengliev, that the court cannot define «generalized» concepts for various legal systems for the simple reason that this is not part of its task [11, c. 185]. Moreover, the interpretation carried out by the judge (even if we assume that the judge took up the implementation of the theory of autonomous qualification and developed general concepts), is not mandatory.
Despite what has been said above, it can be concluded that the concept of autonomous qualification can be successfully used in international agreements in which the rules of qualification are directly established. Insuchcases, the participating States of the agreement, as a rule, in the introductory part of the treaty or in general provisions determine the content of those concepts or terms that will be used by them in the future.
The next variant of qualification is offered by the theory lexcausae. The lexcausae qualification was proposed by Despawne. In Italy, this concept was supported by Paccione, in Germany — Wolf [12, c. 103].
So, M. Wolf, criticizing the possibility of autonomous qualification and qualification for lexfori, offers the following rationale for the qualification of lexcausae. Hebelievesthat «it is preferable to proceed from the premise that each legal norm receives its qualification from the legal system to which it refers. French law qualifies French legal norms, Italian law — Italian norms, and the English court, examining the applicability of French norms, will have to take into account the French qualification. » According to M. Wolff, to investigate the applicability of foreign law without recourse to its qualification means not to consider foreign law as it is and the foreign norm should be qualified on the basis of the entire foreign legal system as a whole. And if the court does not find a suitable qualification in foreign law, such a gap must be filled in the usual way, namely, by searching for analogies, investigating solutions to this issue proposed by related legal systems, and finally, addressing the right of the place of trial.
However, the question arises: does this theory speak of secondary qualification? If this were the case, it is indeed possible to state with certainty that the secondary qualification is lexcausae, but it is about the problem of primary qualification at the time when the applicable law is not defined.
On the other hand, it is hardly possible to induce a court of one state in all cases to apply foreign law for the qualification of conflict rules, since it is impossible to demand from the court the exact knowledge of what is invested in legal concepts in the respective state. Fixing the method of qualification for lexcausae as a normative method of legal qualification would involve the involvement of the concepts of foreign law in the qualification of the conflict rule not in individual cases, but always. Thus, indeed, thereis a problematic qualification for lexcausae and it is hardly possible in practice to use this method. The question of qualification arises before us before the applicable law and the problem of qualification are determined, respectively, in this case it is decided before it becomes known what right will be applied. Sometimes the legal relationship is associated with several legal orders, so the qualification for lexcausae can drive the choice of law into a dead end. With this layout, you will get a kind of «magic circle». However, it is fair to say that at the same time the theory of lexcausae is practically indispensable in secondary qualification. The third theory is that the qualification according to its national law of the country of the court — lexforiqualification — was proposed in the works of Kahn and Barten. Infavorofqualification under the law of the court, two main arguments are given: a) it is a matter of determining the scope of the law of the court and is connected with the interpretation of the conflict of laws rule; b) qualification always precedes the conflict of laws rule. The jurisdiction of the dispute justifies the qualification according to the law of this court (lexfori). Opponents of the theory argue that to the legal relationship until the case is examined by the court, no law and order is subordinated.
According to the authors of this concept, qualification, since it is a prerequisite for resolving a conflict issue, should and can be determined only by the law of the court. Veryoften, thequalification according to the law of the court is the only possible one; for example, if in the conflict of laws rule that «the content of the obligation is determined by the law of the place of its execution,» to try to define the concept of «place of performance» not by the law of the court, but according to the law to which the content of the obligation is subject, then a logically vicious circle would result. From this it is concluded that qualification according to the law of the court is a necessary requirement of logic.
Also in the literature it is noted that lexfori largely ceases to be a means of denying the applicability of foreign law, but turns into what can be called the «last refuge» of the law enforcer in complex conflict situations of law.
The most expedient way of primary qualification is qualification under the law of the country of the court. The conflict rule is the norm of the national law, and therefore the concepts of internal law are used in it. Legal terms, of which the volume and binding of conflict rules consist, have the same content as in the material private law of their state. The legislator, creating a conflict of laws rule, uses the concepts of his right, and not of the foreign one. Similarly, the court, exercising primary qualification for the purpose of determining the applicable law, should be based only on the definitions of its internal law. However, with this approach, the content of foreign law is completely ignored and distorted.
Despite all the shortcomings and omissions of this concept, it is nevertheless often the only possible concept, since the need for qualification for lexfori arises when it is not yet known which right the disputable legal relationship will be subordinated to. Andtherefore, therationality of the lexfori qualification is explained by the fact that at the time of primary qualification the foreign law cannot yet be applied, since it is not yet selected. Even if he decides the essence of the dispute, then only after the conflict of laws of the country of the court indicates its application, and it can only act after qualification.
In paragraph 1 of Art. 1085 Civil Code of Kazakhstan states that the qualification of legal concepts (legal qualification) by a court is based on their interpretation in accordance with the law of the country of the court, unless otherwise provided for by legislative acts. Andfurther, clause 2 of the article stipulates that if legal concepts are not known to the law of the country of the court or are known under another name or with other content and cannot be determined by interpretation according to the law of the country of the court, then in qualifying legal concepts (legal qualification) the law of a foreignstate.
Thus, the Civil Code of the Republic of Kazakhstan derives from the concept of lexfori. Alongwiththis, the Civil Code of the Republic of Kazakhstan gives a rule for the qualification of individual concepts for lexcausae. For example, paragraph 1 of Art. 1106 determines that the statute of limitations is determined by the law of the country used to regulate the relevant relationship; paragraph 2 of Art. 1107 establishes that the ownership of property to immovable or movable things, as well as other legal qualification of property is determined by the law of the country where this property is located (this may be the law of the Republic of Kazakhstan, and the right of any other state). Such «disobedience» to the law of the country of the court can be explained by the specifics oftheregulatedobjects.
It should be noted that our legislation, fixing the general rule of lexfori, does not draw clear boundaries between the qualifications that are held at the conflict stage and on the material one. Mostlikely, inart. 1085 of the Civil Code of the Republic of Kazakhstan, it refers to the primary qualification, i.e. which occurs when choosing the applicable law. The second paragraph of the article, perhaps, can be called a manifestation of flexibility in the regulation of this issue, as it establishes the possibility of applying the principle lexcausae, in contrast to some of the above laws, in which the principle is fixed imperatively. The second point of the article could be stated as follows: if legal concepts are not known to the law of the country of the court or are known under another name or with other content and cannot be determined by interpretation according to the law of the country of the court, and also in the case when the foreign law is defined as applicable, then in the qualification of legal concepts, the law of a foreign state can also be applied. So, the law could outline the scope of two stages of applying the norms of private international law and determine the law applicable in qualifying. Two stages of qualification are subject to differentiation, since they have different directions.
The Civil Code of the Republic of Kazakhstan and most other states proceed from the doctrine of qualification of legal concepts according to the law of the court. Recallthatthisshould take place before the problem of the choice of law is solved, i.e. before the conflict rule is applied and the applicable law is chosen. If the conflict rule refers to foreign law as applicable, then any further qualifications should be based only on the qualifications of the law of this legal system. And this important moment should be fixed in the norm of the Civil Code.
Thus, summing up the above, we define the qualification as an interpretation of the concepts used in the conflict of laws rules, as well as the relationship between the concepts and terms of agreements of the parties, taking into account the actual circumstances of the case. The problem of qualification can arise in the event that different countries use the same conflict norms and, besides, the same concepts. Thus, the existence of the same norms does not even lead to the same choice of the right to be applied. Due to differences in the values invested by different states in the concepts used, the court of each state can interpret the norm in a specific way. In connection with such a likely «unequal» approach by law enforcement officials of different states to the issue of qualifications, the existence of common concepts in the norms of states that the supporters of the theory of autonomous qualification offer does not save the situation. The problems of qualifications could not be avoided, if even in all countries there were conflicting norms, the volume and binding of which contain the same concepts. As for the lexcausae qualification, it is hardly possible to interpret the norm and to correlate the actual circumstances of the case with the norms of the non-selected yet foreign law.
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