Legal entities, in contrast to individuals, are usually understood to be such subjects of law, whose property is separate from the property of its creators (founders, participants).
The main factor for clarifying the civil status
foreign legal entities in private international law is the circumstance that they are influenced by two regulatory systems - the system of national law of the state, which is considered "ours" for the given legal entity, and the state on whose territory it operates or intends to operate (territorial law). At the same time, in a number of cases, the norms of the relevant multilateral or bilateral international treaties, in which the states in question participate, may also be of particular importance. According to the Civil Code of the Russian Federation, the personal law of a foreign organization that is not a legal entity under foreign law is the law of the country where this organization is established.
In private international law, the concept of personal law or the personal statute of a legal entity is applied to legal entities. On the basis of this law, it is possible to establish whether a particular entity is a legal entity, what is its legal capacity and legal capacity, how the responsibility for the obligations of a legal entity is determined, etc.
The law of which country will be considered as a personal law is determined by the so-called nationality of the legal entity. The term "nationality", like many terms in the field of private international law, is applied to legal entities conditionally, in a different sense than it is applied to citizens. It is about establishing the belonging of a legal entity to a certain state. In international practice, along with the definition of the personal law of a legal entity, the state affiliation of a legal entity ("nationality") must be established in order to know which state can provide diplomatic protection to it. Without determining the "nationality" of a legal entity, it will be impossible to establish which legal entities are subject to the national treatment (or most favored nation treatment) provided for by bilateral treaties on legal assistance (for example, under treaties of the Russian Federation with Latvia and Estonia), agreements on trade and economic cooperation, on the encouragement and mutual protection of investments that are valid for Russia in relation to a large number of states.
The question of the criteria for determining the "nationality" of legal entities is resolved in different ways in different states.
Incorporation criterion. In the law of Great Britain, the USA and other states of the Anglo-American system of law, in the Scandinavian countries, the dominant criterion for determining the "nationality" of a legal entity is the place of its establishment, i.e. the law of the state where the legal entity was created and where its charter was approved. English authors call this law the law of incorporation. Moreover, if a legal entity is established in the UK and its charter is registered there, then it is considered that it is a legal entity of English law.
Location criterion. In the continental states of Western Europe, different principles for determining the "nationality" of a legal entity are applied. The prevailing trend is that the law of the place of its location is used as a criterion for establishing the "nationality" of a legal entity. The location of a legal entity means the place where its control center (board of directors, management board, etc.) is located. This principle is adopted, in particular, in France, Germany, Austria, Switzerland, Poland, Lithuania, Latvia, Estonia, Spain. Thus, in Latvia (where the Civil Law of 1937 continues to operate), the legal capacity and capacity of a legal entity are determined by the law of the location of its governing body.
EC Regulation 2157/2001 gives preference to the location criterion. Location refers to the location of the main governing body.
European joint stock companies or limited liability companies are understood as companies created in accordance with the law of the EU state, the main body of which is located in the EU. The location of a European company can be relocated to another EU country
The legal status of foreign legal entities in the Russian Federation is determined both by the rules of our legislation and by the provisions of international treaties between the Russian Federation and other states.
The main provisions on the application of law to legal entities are contained in the Civil Code. The personal law of a legal entity is considered to be the law of the country where the legal entity is established.
The modern Western legal doctrine recognizes as international legal entities those legal entities that are created, firstly, either directly by virtue of an international treaty, or, secondly, on the basis of the internal law of one or two states, adopted in accordance with an international treaty. The former include, for example. International Bank for Reconstruction and Development / IBRD /, European Society for the Chemical Treatment of Irradiated Combustible Materials / "Eurochemik" /. The second group includes the European Society for Financing the Procurement of Railway Equipment / "Eurofirma" /, Bank for International Settlements / BIS /.
In the Soviet legal literature, the concept of an international legal entity was applied to the international banks of the CMEA member countries - the International Bank for Economic Cooperation DLBES / and the International Investment Bank / IIB /.
In the modern economic literature, monopolies, whose activities cover many countries, are divided into several groups. First, these are national societies, trusts, companies, etc., which have numerous branches and subsidiaries abroad. Such monopolies are international in their scope of activity, but national in terms of capital, therefore, they cannot be considered as international legal entities. Such corporations include General Motors / USA /, Volkswagen / Germany /, Philips / Netherlands /.
The second group of monopolies is made up of transnational associations, which are international not only in terms of activity, but also in terms of capital. However, despite the fact that the capital of several states functions in them, these monopolies were created as legal entities of one state. Therefore, they are also not considered international legal entities.
The so-called "mixed companies" are not international legal entities. In private international law, "mixed companies" are usually understood as commercial companies or industrial enterprises, the capital of which belongs to legal entities or citizens of different states.
International legal entities is a collective entity created by states belonging to the group of financial and industrial developed countries (7 or greater 8ka + RF) on the basis of an international treaty, for the purpose of lending and financing countries that have taken the path of market reforms under certain conditions.
Viewsinternational legal entities:
- 1. Int. monetary fund,
- 2. World Bank,
- 3. European Bank for Reconstruction and Development.
there are others, probably ...
Their peculiarity is that their activity is based on an international treaty, which is at the same time a charter created by a legal entity.
A specific goal is to lend and finance, but only to those countries that have embarked on the path of capitalism. That is, we can say that they are pursuing some political goals, since they do not help the socialist countries.
All their loans are targeted, and they are financed under certain conditions and the fulfillment of a number of obligations, namely:
- 1) prevent unscheduled emission of the national currency (a very strict requirement);
- 2) avoiding a sharp change in the exchange rate of the national currency in relation to other currencies (smooth change is possible)
- 3) prevention of holographic prices in the country, that is, increasing many times.
Obligations (of the state that received the tranche (loan):
- 1) commitment to meet the loan objective (e.g. build an incineration plant)
- 2) pay interest on the loan (interest is determined depending on the state of the country, an interest-free loan is also possible)
- 3) agree to the control mechanism.
To subjects of private international law it is customary to refer to individuals and legal entities foreign to each other, as well as the state.
Entity – this is an organization that possesses separate property, is responsible for its obligations, acquires civil rights and bears obligations, acts on its own behalf in court and arbitration.
Distinguish between general and special legal capacity legal entities. When general legal capacity a legal entity has the right to acquire civil rights and bear obligations, like a natural person, with the exception of such rights and obligations, a necessary prerequisite for which are the natural properties of a person. When special legal capacitya legal entity has the right to enter into such legal relations that are necessary only to achieve the goal specified in the law or charter.
The procedure for the formation of legal entities depends on the type of legal entity. There are three orders of education:
- permissive;
- void-normative;
- safe.
With a permissive order for the formation of a legal entity, the permission of the competent state authority, deciding the question of the expediency of creating a new subject of law, is required.
Explicit normative order presupposes the presence of a general normative act regulating the procedure for the emergence and operation of a certain type of legal entity
When safe systemto create a legal entity, a positively expressed intention is required to act as a special subject of law. The existence of such an intention is usually deduced from the bylaws.
To assess the legal status of a legal entity in a particular state, the criterion to which category of persons it belongs is used:
1) to "ours", that is, belonging to a given country, or 2) to "aliens", that is, to another state.
An important factor for clarifying the civil-legal status of foreign legal entities in the MPP is the fact that they are influenced by two regulatory systems: 1) the system of national law of the state, which is considered “its own” for this legal entity, and 2) the state on whose territory it is acts or intends to operate (territorial law).
Representations of personal law were at one time transferred to legal entities, as a result of which the concepts of "nationality" and "settledness" continued to be applied to them by analogy. The category of "nationality" in relation to legal entities is conditional and imprecise. However, it does not raise objections if the task is to delimit domestic legal entities from foreign ones. For example, in the UAE, on the basis of the Companies Law No. 8 of 1984, 51% of the shares of a company established in the UAE can only be owned by an individual or legal entity of the domestic legal order. Therefore, the most important task is to find out whether we are talking about a local or foreign subject of law.
A bilateral international treaty may establish that legal entities belonging to the contracting states are granted, on the basis of reciprocity, national treatment (or most favored nation treatment) for the purpose of carrying out activities on the territory of another contracting state. In this case, it is also necessary to distinguish: 1) "our", ie, national legal entities, 2) foreign, ie, belonging to a contracting state, 3) "foreign", ie, belonging to non-contracting states.
Most favored nation principle – one of the basic principles of trade agreements concluded with foreign states. By virtue of this principle, foreigners enjoy the maximum of those rights that are granted to persons of another state. This explains the very expression "most favored". This principle is that foreign legal entities and individuals in trade, navigation or in other areas are provided with the same treatment that is provided or will be provided in the future to legal and natural persons of a third country. The regime in the field of trade, navigation, the legal status of foreign organizations, applied to one foreign state with which a trade agreement has been concluded, will also apply to any other state with which a trade agreement has also been concluded on the basis of the most favored nation principle. Thus, by virtue of this principle, equal conditions for all foreign states and their organizations and firms in relation to those trade issues that are provided for in the trade agreement.
The most favored nation principle is always established by agreement. For the modern contractual practice of our state, some exemptions are characteristic of developing countries, as well as those associated with the establishment of special advantages within certain customs unions. For example, the trade agreement with India dated December 10, 1980. The agreement, inter alia, provided that the most favored nation treatment would not relate to the benefits that have been granted or may be provided in the future by one of the governments to neighboring countries in order to facilitate border trade; the advantages that India has provided or may provide in the future to one or more developing countries in connection with its participation in any agreement on the development of trade and economic cooperation between developing countries; benefits or benefits arising from the customs union and (or) free trade zone, of which each country is or can become a member.
Contractual practice of the Russian Federation in trade relations with other countries proceeds from the principle of most favored nation and generally has a negative attitude to the application of national treatment in the field of trade. The provision of national treatment is envisaged in relation to free access of foreign legal entities and citizens to courts. The national regime is applied in contracts on legal assistance, social security (judicial protection, provision of labor and other rights based on the national regime). On certain issues, for example with regard to access to courts, national treatment is provided for in merchant shipping treaties. The granting of national treatment to foreigners in the Russian Federation on the basis of multilateral agreements in the field of copyright and rights to inventions and trademarks has acquired great practical importance.
Have their own characteristics in MPP
Legal entities in MPP - this is, first of all, of various kinds business associations that play a decisive role in the economy any state acting as an independent participant in civil relations.
Among the signs of a legal entity in the law of most states property isolation is of particular importance... The property of a legal entity is separate from the property of its members and does not depend on their fate.
Having your own property, in turn, is a prerequisite independent property liability a legal entity within the limits of the property belonging to it under contracts that it concludes.
A characteristic feature of a legal entity in the law of England and the United States, considered as fundamental, is considered its independent existence from its constituent members.
As signs of a legal entity that characterize this subject of law quite fully. the following can also be named:
a) possession independent willthat does not coincide with the will of its participants;
b) opportunity make transactions on its own behalf within the limits of what is permitted by law;
c) right to act as a plaintiff or defendant in court in its own name.
Legal entities - subjects of MPP
National legal entities or legal entities - residents are guided by their domestic legislation, and the question of the state personal law does not arise.
However, if the subject of the relationship is a foreign legal entity, i.e. civil legal relations are complicated by a foreign element and becomes the subject of regulation by the international private sector
Nationality legal entity - its "citizenship". This the category applies to a legal entity only by analogy.
Domicile legal entity - location of its control center
Legal entity residence - the place of permanent residence where his main operations are performed.Personal law (statute) directly determines the legal status of a legal entity (whether it is such, its legal capacity, the procedure for making transactions by its bodies, registration issues, liquidation, etc.) Thus, personal law implies the definition of a specific state to which the legal entity belongs face.
Legal entities are business structures that play a decisive role in the economy of developed countries. Central Institute of Civil Law. MPP is closely related to international business.
General initial data:
Different approaches to the essence of a legal entity
1) The theory of fiction.Savigny. An artificially created permissive order of education, through a simple fiction, the subject of law. Real subject - individuals... A legal entity is incapable, the bodies of a legal entity are capable. This implies the permissive procedure for the emergence of legal entities.
2) Reality theory (organic theory). Girkin. Entity - real subject of lawnecessary for the normal functioning of the state. An allied personality is an association of people acting as a whole. how isolated unity of interests, an independent subject of the rule of law, endowed with rights and responsibilities. safe order
Legal capacity of legal entities:
General and special
General - acquire rights and bear civic obligations, with the exception of those which are inherent only in man.
FROM special - enter only such a relationship, which are provided for by the statutes.Typical for anglo-Saxons.
Legal characteristics of a legal entity from the point of view of MPP
Nationality - to determine the nationality of a legal entity means to "tie" it to the legal system of the state.
Domicili is the location of its control center.
Residence - the place of stay, where its main operations take place.
The personal law of a legal entity - defines Article 1202 of the Civil Code of the Russian Federation (the scope of application of the personal law of a legal entity). The first thing we define. How is it determined?
Basic concepts:
Doctrine of Settlement. According to her personal law, the legal entity is recognized location of its administrative center (headquarters). Leading doctrine. She obeys continental rights. Very comfortable, usually the incorporation documents contain the location of the office. There are no particular difficulties.
romano Germanic. it is difficult to determine the branches of the person in the country of the state register and the country where the main office is located,
Incorporation doctrine. Procedures state registration... The essence is the personal law of a legal entity - law of the state where the legal entity is registeredAnglo-Saxon position. But Russia joined it. Less popular concept. It has many drawbacks - bypassing the law.
it is easy to establish location, is in one, but works in another, the place of registration is chosen by the founder.
Additional (if there is no clear answer from the above doctrines):
* Doctrine of the center of exploitation. Personal law of a legal entity - place of business... Few joined it. Exists as an additional option.
* Doctrine of control. Also auxiliary. New control criterion - personal law of a legal entity the law of the state of which the shareholders are citizens is consideredor members of the board of directors. It was actively used at the end of the Second World War.
We can face abnormal (?) Situations. In one country, according to the criterion, it belongs to another country, in that country, the opposite situation.
1. The concept and scope of the personal law of a legal entity. The main methods of determining the "nationality" of a legal entity, their advantages and disadvantages. The criteria for determining the personal law of a legal entity (the doctrine of "incorporation", the doctrine of "settledness", the doctrine of the "center of exploitation", the doctrine of "control").
2. International legal entities and problems of determining their legal status.
3. The legal status of foreign legal entities in the Russian Federation. Legal status of branches and representative offices of foreign legal entities in the Russian Federation.
4. The legal status of Russian legal entities abroad.
Touching upon the question of the legal status legal entity in the MPP, it should be noted that in modern civil law codifications, as a rule, there is no clear definition of the term "entity"... You can name the signs of a legal entity that characterize it as a subject of law: 1) organizational unity; 2) property isolation; 3) independent property liability; 4) the ability to act in civil matters, as well as a plaintiff and a defendant in court on his own behalf.
The legal status of a legal entity as a subject of MPP is also determined by its personal law (lex societatis)... This type of conflict of laws binding means the application of the law of the state to which the legal entity belongs. It determines the legal capacity of a legal entity, the procedure for making transactions by its bodies, issues of creation, reorganization and liquidation of a legal entity. Determination of the state affiliation of a legal entity is also required to establish the tax regime, resolve conflict issues, apply for diplomatic assistance, etc. It should be borne in mind that the concepts of "citizenship" and "place of residence" are not applicable to a legal entity. You can talk about the "nationality" or "nationality" of a legal entity. These concepts are defined differently in different countries. There are four main doctrines for determining the ownership of a legal entity.
1. The doctrine of "settledness", according to which the personal law of a legal entity is recognized as the law of the location of its administrative center (that is, the governing body).
As a rule, the constituent documents of a legal entity contain an indication of its place of residence. This doctrine has become widespread in France, Germany, Italy, Austria, Switzerland and a number of other civil law countries. The definition of personal law on the basis of this doctrine is convenient, since the location of the organization is easy to verify (in the trade register), and therefore, there are no problems with obtaining information about the legal and legal capacity of the organization.
2. The "center of exploitation" doctrine, according to which the personal law of the corporation is the law of the place where its main activity is carried out.
The advocates of the application of this doctrine are few. Indeed, if the “exploitation center” is taken as the main criterion for determining the personal law of a legal entity, then the factor that the commercial activity of the organization (the conclusion of contracts and other transactions), which generates legal obligations, takes place in the control center, will not be taken into account at all. Moreover, a company may have several locations of its "core business" in different countries with an equal volume of operations, for example, transnational corporations (hereinafter referred to as TNCs). The apparent shortcomings of this doctrine were the main reason for its rejection in England, the United States and continental Europe, although it was approved by many French scholars.
3. The doctrine of "incorporation", according to which the personal law of a legal entity is the law of the state where this legal entity is created. This doctrine was most widespread in the countries of the Anglo-American system of law. Our country also adheres to this doctrine (Article 1202 of the Civil Code of the Russian Federation). A significant drawback is the lack of connection between the law of the place of formation of the company and the law of the place of implementation of its activities and, therefore, the possibility of non-fulfillment of those requirements that are provided for by the legislation of the country where the legal entity carries out its practical activities (for example, when creating an organization in an offshore zone).
4. Doctrine of "test of control", which arose in wartime, according to which the nationality of a legal entity is determined taking into account the numerous aspects that characterize the corporation. Such aspects include factors such as the nationality of shareholders, directors, employees, workers; the nationality of the holders of the securities; nationality of patents or trademarks licensed by the corporation, etc. However, all of these criteria also have their drawbacks. Members of one joint stock company may be of different nationalities. A similar situation can arise when linking to the nationality of the share capital, using a technology consisting of processes patented in several countries. The lack of uniform clear criteria for determining the nationality of a legal entity, as well as the existence of inconsistent conflict of laws in the law of different states led to the need to determine the nationality of legal entities through the conclusion of bilateral international treaties (in particular, treaties on the promotion and protection of foreign investment).
Foreign legal entities are organized on the territory of host states in various organizational and legal forms permitted by national legislation. However, compliance with legal requirements when organizing a legal entity with the participation of a foreign element is not always a sufficient condition for permitting the activities of such a legal entity in the domestic market. It is necessary that the legal entity be recognized as the subject of law and allowed to carry out the proposed economic activity. In most countries, such recognition becomes valid without any special administrative act on the part of the state, where the legal entity intends to carry out its activities. Such a provision exists in the UK, where the courts recognize the existence of any legal entity if it is properly created under the laws of the country of the place of state registration of the legal entity. At the same time, French and German law put forward certain additional conditions. In France, for the recognition of a foreign legal entity, a special order must be issued. In Germany, a special administrative act is required for foreign legal entities that are not engaged in trading activities. For trading companies, German law is more liberal and does not require special recognition. It should be borne in mind that the recognition of a foreign legal entity does not turn it into a national (local) company. It is only considered in the state that recognized it as a legal entity.
The issue of admitting a foreign legal entity to economic activity is regulated by the domestic legislation of the host state and will be considered in a separate topic on foreign investment.
The problem of determining the legal status of the so-called international legal entities, which are now very widespread, is quite interesting and very difficult in the international private sector. International legal entities, in particular TNK, have branches and subsidiaries practically all over the world. Moreover, these branches and subsidiaries are registered as independent legal entities under the national legislation of the host countries. This means that TNC, being an economically unified mechanism, from a legal point of view, is a set of legal entities registered in different countries and being subjects of the national law of these countries. This provision significantly complicates the control over the activities of TNCs. The regulation of the status and activities of TNCs is currently carried out on the basis of a multilateral international treaty on TNCs signed in March 1998. Certain efforts are also being made by the countries of Latin America. For example, there are two important documents adopted by the Andean Pact countries: Decision No. 220 “General Regime for the Use of Foreign Capital, Trademarks, Patents and Licenses” and Decision No. 46 “Regime of Multinational Enterprises and Regulation of the Use of Sub-regional Capital”.