Tolib Rakhmonov

Image source: blog.ipleaders.in

1. Introduction

The modern world is rapidly developing, and it is impossible to imagine it without global integration. Uzbekistan, like many other countries, seeks to establish mutually beneficial economic relationships with developed countries. In a market-driven economy, business entities are interested in establishing foreign economic ties with developed countries to increase their export potential. In addition to business entities, individuals also often enter legal relations with foreign citizens, especially in areas like civil, labor and family law. By entering into legal relations complicated by foreign elements (subject, object, legal fact), the participants of the abovementioned relationships often face challenges when determining applicable laws in case of disputes. In these occasions, Private International Law (hereinafter PIL) plays a significant role in resolving such issues. Unfortunately, Uzbekistan does not have a single systematized legal act containing all the norms of private international law. 

This blog post discusses the necessity of implementing a Сode of PIL and analyses the advantages of codifying it.

2. The state of the current legislation

At present, there is no unified legal framework that governs all aspects of PIL in Uzbekistan. PIL rules are enshrined in various legal acts. For instance, Section 6 of the Civil Code contains most of the PIL rules, defining the general PIL principles, the status of individuals and legal entities, transactions, property rights, contractual and non-contractual obligations, as well as rules regarding inheritance law. However, the Code does not disclose in detail the principles of the PIL (for example, principle of party autonomy, the principle of non-discrimination and etc.), which are the fundamental principles to PIL.

Furthermore, Chapter 8 of the Family Code regulates the issues of family relations involving foreign citizens and stateless persons. Some issues of international family law have remained unresolved due to the fact that the conflict law rules are set out in a very compressed form. While the Code covers matters related to marriage, divorce, and adoption, it does not clarify alimony obligations. In particular, the Code does not contain answers to questions regarding the applicable law on alimony obligations, the procedure for calculating alimony amounts, and the extent of debtor obligations.

Labor relations complicated by a foreign element are regulated by a separate chapter of the New Labor Code. Article 521 of the Code states that its norms apply to foreign citizens and stateless persons, as well as to foreign citizens who legally entered Uzbekistan for employment purposes. In my opinion, this rule lacks flexibility, as it does not give the parties the right to choose the applicable law, denying their autonomy in decision-making.

Other aspects of PIL, like matters of jurisdiction, recognition and enforcement of foreign courts’ decisions, legal relations related to international commercial arbitration, are regulated by separate legal acts.

3. International experience

To date, some foreign countries (Bulgaria, Belgium, Tunisia) have already codified the norms of private international law, while others (Switzerland, Korea, Hungary) have incorporated them into separate laws. In this context, examining the experience of several foreign countries that were able to unify the norms of the PIL, will be insightful.

Among Asian countries, special attention should be paid to the Law of Japan (Act on the General Rules of Application of Laws), which regulates the private legal relations complicated by a foreign element. Although this law is quite detailed, it mainly focuses on issues of personal statute and family relations. The law also covers norms concerning individuals, contractual and non-contractual obligations, property rights, marital and family relations, and inheritance. Article 1 of the Law defines its purpose: “This law shall provide the general rules for the application of laws.” It is noteworthy that Japanese Law proclaims custom as an independent source of law. Article 3 states that customs not contrary to public policy (ordre public) shall have the same effect as law, to the extent that they are authorized by a statute or a statutory instrument, or that they concern matters not otherwise prescribed by a statute or a statutory instrument. A notable accomplishment of this law is the inclusion of specific provisions concerning labor relations. The general binding of employment contracts is the law of the place of work (lex loci laboris) (Article 12). Japanese law also addresses the issues of family relations complicated with foreign element. Chapter 5 of the Laws regulates in detail the issues related to marriage and divorce, the legal status of the child, adoption, custody and guardianship. Overall, we can say that Japan’s Act on the General Rules of Application of Laws regulates in detail the most important issues of the PIL, systematically setting out rules of conflict of laws.

Turkey is the next country that codified the norms of PIL. Article 1 of the Act on International Private and Procedure Law defines the scope of this law, according to which this Law regulates the law applicable to transactions and relations in the field of private law that are complicated by a foreign element, the international jurisdiction of Turkish courts, recognition and enforcement of foreign judgments. However, the law does not clarify exactly what is meant by a foreign element, which may lead to different interpretations. The interesting aspect of this law is that it not only contains norms of PIL, but also procedural rules concerning the conflict of laws. The Turkish Law regulates in detail the issues of limitation of actions, forms of transactions, property rights, contractual and non-contractual obligations, family and marital relations, labor relations, as well as issues of jurisdiction in private international law. As compared to Family Code of Uzbekistan, Turkish Law regulates family and marital relations in detail, including issues related to alimony obligations.

4 The necessity of adopting the Code of PIL

The PIL is considered as an independent branch of law and has its own special subject of regulation – private law relations complicated by a foreign element, as well as its own method of regulation – the conflict of laws method. Also, the codification of the norms of PIL has a number of advantages, among which are the following:

Firstly, through codification, it is possible to create a unified system of rules, which will eliminate gaps in legal regulation. The Civil, Family, and Labor Codes provide a framework for addressing certain aspects of PIL. However, there are still numerous unresolved issues within these realms. Specifically, matters concerning property rights of spouses, obligations for alimony, the dynamics between employers and employees, and more are not comprehensively addressed. Therefore, the codification will ensure a more comprehensive and thorough understanding of these complex issues.

Secondly, the adoption of a comprehensive code consolidates the existing rules and principles governing PIL. This simplifies the legal landscape by bringing together various provisions scattered across different laws into a single, coherent framework. As a result, parties involved in cross-border transactions or disputes have a clearer and more accessible set of rules to follow, reducing confusion and uncertainty. By providing a stable and unchanging framework for determining applicable law, jurisdiction, recognition and enforcement of foreign judgments, the code minimizes the risk of sudden and frequent changes in legal rules that could disrupt established business relationships or legal proceedings.

Finally, the unification of all conflict of laws and procedural rules (the procedure of consideration the disputes complicated by a foreign element) simplifies the work of courts and law enforcement agencies. Since they will refer to the code instead of numerous legal acts. In turn, this will ensure a unified approach to dispute resolution in the field of PIL and will allow the formation of a unified judicial practice.  For instance, while the Code of Civil Procedure may lack specific provisions on the jurisdiction of civil courts to adjudicate disputes involving foreign individuals, the Economic Procedure Code delineates such jurisdiction in detail (as per articles 239 and 240). The enactment of a single comprehensive code would promote a unified framework for resolving disputes in the realm of PIL, ensuring coherence across civil and economic courts.

There are certain arguments against the codification of PIL. In particular, there is a concept that the lack of a unified doctrinal point of view on the structure and legal nature of the norms of PIL prevents their unification into a single law. In addition, PIL is a relatively new branch of law and is prone to certain changes. In turn, making changes to laws is a long and complex process, which can delay the process of adapting legislation to modern world requirements.

To address these shortcomings, it is essential to engage experts in the field, including scientists and practicing professionals like judges, in the development of the draft Code. Additionally, a thorough examination of foreign countries’ experiences should inform the inclusion of comprehensive norms covering key aspects of PIL to minimize the need for frequent future revisions. The adoption of a single codified act will be an important step towards improving legislation and will create opportunities for attracting foreign investment to our country.

5 Conclusion

In conclusion, I would like to say that the adoption of a single codified act in the field of PIL is a requirement of the time. The Code of Private International Law will ensure the stability of legal practice, which simplifies the work of not only judges, law enforcement officers, but also citizens and legal entities, including foreign investors. Currently, experts are working on the development of the Code of Private International Law in Uzbekistan. As it was argued above, while developing the Code it is necessary to reflect in it issues of civil, international family and labor law, as well as issues of jurisdiction and recognition and enforcement of foreign judgements.

Cite as:  Tolib Rakhmonov, “Should Uzbekistan adopt the Code of Private International Law?”, Uzbekistan Law Blog, 23.08.2024.