Prospects for recodification of private international law in Ukraine: do conflict-of-laws rules require a new haven

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National academy of legal sciences of Ukraine

International private law and comparative law Yaroslav Mudryi national law university

Prospects for recodification of private international law in Ukraine: do conflict-of-laws rules require a new haven

Dmytro V. Lukianov

Thomas Hoffmann

Inesa A. Shumilo

The theoretical framework of this study included the articles of Ukrainian and foreign scientists in the field of private international law, in particular, the studies by V.I. Kysil [1; 2], A.S. Dovhert [5; 9], V. Ya. Kalakura [3], which cover the problems of PIL codification in Ukraine. To investigate the experience of foreign codifications, the Encyclopaedia of Private International Law was used as one of the main sources [10], which was published in 2016 under the editorship of the director of the Max Plank Institute for Private International Law and Comparative Law, professor J. Basedow and today is the most authoritative and comprehensive reference source in this subject area.

The study of the works of S.C. Symeonides [6], R. Cabrillac [7], and Cs. Varga [11] was of great importance for clarifying the opinions of world-famous researchers on the modern processes of PIL codification. The fundamental works of these scientists provide an in-depth understanding of the institution of codification as such, allow determining its essence and significance from legal, technical, historical, sociological, and other standpoints. The book «Codification of private international law around the world: an international comparative analysis» by S.C. Symeonides contains a global study of codifications of private international law for 50 years (1962-2012) [6]. During this period, more codifications in the field of PIL were adopted than in all previous years, and horizontal comparison and analysis of these codifications provides answers to the fundamental philosophical and methodological dilemmas of PIL.

The authors of this study also investigated the articles of young scientists, their new views on the theory of codification, on the prospects for the development of legislation in the field of PIL in the global digital economy. In particular, the results of the dissertation work of Professor E.A. Hetman «Codification of the Legislation of Ukraine: General Characteristics, Features and Types» and other developments of this scientist were used [12; 13]. The studies of Estonian legal scientists Prof. Tanel Kerikmae[14], Karin Sein [15], Maarja Torga [16], Lithuanian scientist Prof. Valentinas Mikelenas [17] and others also became important literary sources. The experience of codifying PIL in the Baltic States is important for Ukraine, first and foremost because this process in began simultaneously in these countries and the initial conditions were quite similar. Of particular importance for comparative analysis is the fact that, despite similar doctrinal approaches, conflict-of-laws rules were included in civil codes in Lithuania and Latvia, and the Estonian legislator carried out autonomous codification by adopting the Law of Estonia «On Private International Law» Law of the Republic of Estonia “On Private International Law”. (2002, July). Retrieved from https://www.riigiteataja.ee/akt/13242136.. To summarise the Baltic experience, the study investigated the monograph «Law of the Baltic States» under the general editorship of Prof. Tanel Kerikmae, one of the sections of which contains a deep comparative analysis of the private law of three states [14]. Studies of Prof. K. Sein and M. Torga, doctor of law, covering the development of the Estonian PIL and its relationship with EU regulations [15] were also used to get acquainted with certain aspects of the national codification process in this area.

The studies of Russian scientists Prof. N.I. Mary - sheva [18], prof. І.В. Hetman-Pavlova [19], researcher Ye.O. Krutiy [20] were also of great importance for the coverage of the subject under study, as well as the opinions of the famous Kazakh civilian Prof. M.K. Suleimenova [21]. The analysis of the studies of these authors clearly illustrates the change in doctrinal approaches to the codification of PIL in the post-Soviet space under the influence of European and global trends, at least in the field of theoretical research.

2. Materials and methods

The methodological framework of the study included a set of general and special methods of scientific cognition, namely such methods of empirical research as comparison, methods of analysis and synthesis, induction and deduction, methods of formal legal, comparative, and historical analysis. At all stages of the study, the general philosophical (universal) method of cognition and the hermeneutical method were used to interpret theoretical concepts of private international law and the provisions of current legislation.

Considering the scientific task set, the main research method was the critical legal method. According to one of the most influential contemporary philosophers of science, K. Popper [22, p. 29-30], any solutions proposed in social research should be subjected to critical analysis, and solutions that are not available for criticism should be excluded as unscientific. The essence of the critical analysis was to verify the relevance of legal information and the completeness of the sources used, as well as to evaluate the proposed scientific solution. The paper also widely used the method of comparative law, which allowed identifying the most important features of the problem under study: factors and prerequisites for the codification of PIL, approaches to the classification of national codifications of PIL from the standpoint of consolidating provisions, structural aspects of modern codifications of PIL, etc. The comparison covered acts of national codifications of PIL and international unified legal provisions. Diachronic comparison allowed tracing the development of national codifications of different countries according to the principle of time sequence, which made it possible to determine the vector of development of PIL codifications as a legal phenomenon and outline future trends. Synchronous comparison was applied to simultaneously existing codification phenomena.

The method of historical analysis allowed studying the stages of development and adoption of private international law codification acts in Ukraine and other states. The dialectical method provided an opportunity to analyse the PIL codification in its development, to identify trends in improving the legislation of EU Member States and third states in the context of harmonisation and European integration. The formal legal method was used to analyse the legal provisions governing certain types of cross-border legal relations and the practice of their application.

Using the method of deduction based on the doctrinal opinions of scientists, a conclusion was made about the general prerequisites for systematisation and codification of legislation in the field of PIL. The study also identified the specific features of the main types of codification used in the implementation of modern approaches, and evaluated their effectiveness. The inductive method helped conclude that the intersectoral approach to PIL codification reduces the effectiveness of regulatory influence, complicates the processes of updating and adapting to EU legislation. The Aristotelian method was used to analyse the content of the current legislation of Ukraine and other states in the field of private international law, identify problems of legislative technique used in certain regulations.

The results obtained thanks to special scientific research methods were corrected considering the data of related legal sciences (history and theory of law, civil studies, comparative law), which helped identify the historical and meaningful context of ideas about the forms and methods of systematisation of conflict-of-laws rules of modern lawyers and scientists of past centuries.

The theoretical framework of the study comprised scientific articles and monographic studies of leading domestic and foreign experts in the field of law theory, civil studies, private and public international law. In addition, the paper used specialised doctrinal studies covering the entire range of issues of systematisation and codification of PIL. The study analysed the concept of updating the Civil Code of Ukraine [4], prepared by the members of the working group formed by the Resolution of the Cabinet of Ministers of Ukraine, under the scientific supervision of Professor A.S. Dovhert and Prof. N.S. Kuznetsova¹. The regulatory framework of the study comprises modern national acts of codification of the PIL, foreign family, commercial, civil, and civil procedural legislation, international universal and regional agreements, EU regulations and directives. The study also investigated such regulations as the Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters («Brussels I») Resolution of the Cabinet of Ministers of Ukraine No. 6501 “On the Establishment of a Working Group on Recoding (Updating) of the Civil Legislation of Ukraine”. (2019, July). Retrieved from https://zakon.rada.gov.ua/laws/show/650-2019-y%D0%BF#Text. Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. (2000, December). Retrieved from eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001 R0044&from=EN., Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000. (2003, November). Retrieved from https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32003R2201.; Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations («Rome I») Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I). Retrieved from https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:177:0006:0016:En:PDF., etc.

3. Results and discussion

Refusal of autonomous codification of PIL as a component of the system update of private law in Ukraine The idea of abandoning the comprehensive autonomous codification of private international law in Ukraine was proposed by the authors of the Concept as one of the factors of the «general process of reviving private law in Ukraine», which should be implemented in the updated CCU Civil Code of Ukraine. (2003, January). Retrieved from https://zakon.rada.gov.ua/laws/main/435-15#Text., which will become a «supermarket of legal opportunities for every citizen of Ukraine» [23]. The particular relevance of recodification with a change in the structure and a considerable expansion of the scope of regulation of the Civil Code of Ukraine Ibidem, 2003. is explained by pan-European trends, namely, the invention of «globally applicable legal provisions (solutions)» by scientists of the EU countries for many areas of private law relations, and the modernisation of «old» civil law codifications, considering European and universal international documents.

Systematic updating of legislation, admittedly, plays a critical role in the development of legal systems, at the same time, codification (recodification) is the most radical means that provides an orderly statutory regulation of certain legal relations, so this type of law-making requires a particularly careful and responsible attitude. In the theory of law, there have been many attempts to classify the types of systemic updates of legislation, but, as noted by the outstanding Hungarian legal scientist C. Varga, each such project is born in a unique socio-historical environment, so attempts to deduce rigid schemes and regularities of the development of these processes do not make sense [11, p. 328].

The current socio-historical and political situation in Ukraine is, in fact, unique, and it determines the main actors of changes, goals, and volumes of modernisation of legislation. Further transformation of society, the impact of new technologies on all spheres of life, admittedly, require a corresponding update of the legal regulation of private relations, which participants in national and international legal events have been discussing in recent years, primarily emphasising the urgent need to introduce changes and amendments to the current CCU Ibidem, 2003.. Well-known Ukrainian civilists, namely prof. O.E. Kharytonov and prof. A.S. Dovhert believe that the current civil legislation is outdated and needs a complete reinterpretation and adaptation to the European concept and new political values, as well as elimination of substantial gaps and shortcomings [9; 24]. Other scientists, in particular, prof. I.V Spasibo-Fateeva, on the contrary, believe that the CCU of 2003 is based on a well-thought-out and consistently implemented scientific concept, «the application of provisions of the Civil Code did not reveal any obvious and gross shortcomings for 15 years. Therefore, it cannot be said that the reason for the modernisation of the Civil Code is its shortcomings, which must be eliminated» [25]. Despite some differences in opinions, almost all representatives of civilistic schools as well as foreign researchers [26] are united in the fact that the main reason for the crisis of regulation of civil law relations is the Economic Code of Ukraine, which creates other legal mechanisms compared to those proposed in the CCU, and «its existence does not allow reforming what modern society urgently demands» [27, p. 101]. Thus, the main efforts to date are aimed at «reforming the Civil Code in such a way that nobody could find what has left of the Economic Code» [25].

The proposed concept generally meets the goals outlined above, defining the abolition of the Economic Code of Ukraine Economic Code of Ukraine. (2003, January). Retrieved from: https://zakon.rada.gov.ua/laws/show/436-15#Text. as the primary task, it makes provision for clarifying the areas of application of civil legislation, in particular, the inclusion of «additional areas of social reality - entrepreneurship, corporate, or information spheres, etc.». It is also proposed to expand the list of objects of civil rights. The concept contains detailed analytical materials and important suggestions for structural and meaningful changes to each book of the current Civil Code. Therewith, the argument for the abolition of the Family Code of Ukraine¹ and the Law on PIL Family Code of Ukraine. (2002, January). Retrieved from https://zakon.rada.gov.ua/laws/show/2947-14#Text. Law of Ukraine No. 2709-IV “On Private International Law”. (2005, June). Retrieved from https://zakon.rada.gov.ua/laws/ show/2709-15#Text. and the transfer of their provisions to the updated Civil Code is concise, and about ten pages of the Concept are devoted to both issues taken together. The least attention is paid to family law, Section 7 states that «the inclusion of family law in the updated Civil Code of Ukraine is considered by the Working Group as an important step towards the harmonisation of Ukrainian doctrine and jus commune legislation, but the main areas of the recodification are not elaborated, with a mere reference that they will be presented after discussing the concept at the stage of its completion [4, p. 59].

The issues of PIL recodification are considered somewhat more broadly. The section «Main areas of updating (recodification)» provides a critical analysis of the content of the current Law on PIL Ibidem, 2005., stating that the national conflict-of-laws theory and rule-making practice do not fully comply with the legislative achievements of European countries and suggesting updating the content of the Law on PIL Ibidem, 2005. in five identified areas: strengthening the private law foundations of conflict-of-laws rules; providing conflict - of-laws rules with greater flexibility while maintaining their certainty; «materialising» the choice of law; clarifying a one-vector approach to solving a conflict-of-laws issue; reformatting the text of the Law on PIL in the final book of the modified CCU. The appendices separately consider the factors and prerequisites for updating the CCU, the main results of the PIL codification in 2005, provide a brief analysis of the practice of applying the PIL provisions by the courts of Ukraine, address individual unification acts, legislation of the EU and foreign states, the fundamental ideas of which should be considered during recodification, and outline the expected results of modernisation.

Thus, the analysis of the text of the concept allows conditionally distinguishing three types of provisions concerning the PIL recodification: determination of general factors and prerequisites for its implementation; proposals for meaningful updating and improvement of individual PIL provisions; justification of the expediency of transferring conflict-of-law rules to the CCU Civil Code of Ukraine. (2003, January). Retrieved from https://zakon.rada.gov.ua/laws/main/435-15#Text.. Therefore, the authors of this study attempted to consistently analyse the prerequisites and expediency of recodification using critical legal, comparative legal, dogmatic, and other methods of legal research and determine the degree of their validity, compliance with historical principles and modern needs of society, verify the presence of contradictions, compliance with fundamental principles, etc.

Analysis of the prerequisites for the PIL recodification and the feasibility of transferring conflict-of-laws rules to the CCU

The concept names five factors that led to the start of work on the recodification of private law, two of which are related to internal processes: the development of market legislation and increasing the potential of Ukrainian private law science. These processes are ongoing and, according to the authors of this study, cannot be considered as decisive factors of influence. Other factors are external in nature and are related to the legislative experience of both individual European countries and trends at the pan-European level, namely the availability of model provisions of international acts, the experience of recodification of civil codes of France Civil Code of France. (2020). Retrieved from https://hindravi.files.wordpress.com/2019/12/french-civil-code.pdf. and Germany Civil Code of Germany. (2002). Retrieved from https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.pdf., a legislative example of new EU members.

The subject of analysis in the future will be precisely external factors in terms of their impact on conflict-of-laws regulation. However, according to the authors of the Concept, there is another factor at play that should encourage the PIL recodification, which is «the restoration of the national legal tradition regarding the placement of conflict-of-laws rules, since earlier the Civil Code of 1963 contained a similar part, although under a different name - «the application of foreign law and international treaties, the legal status and capacity of foreign citizens» [4, p. 126].

Admittedly, the Civil Code of the Ukrainian SSR Civil Code of the Ukrainian SSR. (1963, July). Retrieved from https://zakon.rada.gov.ua/laws/show/2709-15#Text. (Articles 565-572) and Fundamentals of Civil Legislation of the USSR and Its Republics Fundamentals of Civil Legislation of the USSR and Its Republics. (1991, May). Retrieved from https://zakon.rada.gov.ua/laws/ show/v2211400-91#Text. (Articles 156-170) contained about a dozen conflict-of-laws rules focused on regulating a very narrow scope of issues because the emergence of a «foreign element» in private relations was a rare phenomenon behind the «Iron Curtain» of a totalitarian state. However, even in those days there were ties with individual countries, and after the end of the Cold War, with a gradual change in foreign policy, the exchange in the private sphere intensified, which required expanding the scope of conflict-of-laws regulation. As early as in the 1970s, a recognised specialist of that time, the author of a fundamental course on private international law, Prof. L.A. Lunts proposed to develop and adopt a special law on PIL, and in 1990 his students O.M. Sadikov, N.I. Martsheva and A.L. Makovskyi developed a Draft Law of the USSR «On Private International Law and International Civil Procedure»¹. The developers of this project are convinced that it did not become law due to departmental competition and administrative influence. Later, an abridged version of the text of the draft law was included in the Civil Code of the Russian Federation Draft Law of the USSR “On Private International Law and International Civil Procedure”. (1970, March). Retrieved from https://zakon.ru/Tools/DownloadFileRecord/24255. Civil Code of the Russian Federation. (1994, November). Retrieved from http://www.consultant.ru/document/cons_doc_LAW_5142/.. However, to this day, Professor N.I. Marysheva and other well-known experts in the PIL defend the expediency of autonomous codification proposed by L.A. Lunts, believing that only in this way «the shortcomings of branch codification» can be successfully overcome. «The adoption of the federal law on private international law and international civil procedure would allow, firstly, most fully and consistently defining and distinguishing between general and special institutions in this area and, secondly, achieving goals that can be defined as 1) restoring gaps, 2) eliminating duplication, 3) eliminating contradictions. But most importantly, the introduction of this law would provide a rare opportunity to unite (or rather, reunite) related institutions of private international law, scattered across «branch compartments», and would be one of the serious steps towards the development of truly private law» [18, p. 62].

Consequently, the reference to the regulatory framework and doctrine of the Soviet period, according to the authors of this study, is insufficiently justified. It is improbable that the approaches of that time can be considered the origins of the national legal tradition, given that the most authoritative scientists, whose professional development took place in the pre-Soviet period, even then saw the advantages of a comprehensive autonomous codification of private international law.

Next, the authors analysed the external factors and prerequisites for the PIL codification. The Concept names new pan-European trends as the first factor. Admittedly, the reform of European private law is of great importance for Ukraine, given the European integration aspirations and the need to perform programme tasks to adapt national legislation to EU legislation. The European Union has been active in the field of PIL and international civil procedure for more than two decades, and today a supranational codification has been created, comprising EU directives and regulations in this area.

Association Agreement between Ukraine and the EU of June 27, 2014 Association Agreement between Ukraine, of the one part, and the European Union, the European Atomic Energy Community and their Member States, of the other part. (2014, June). Retrieved from https://zakon.rada.gov.ua/laws/show/984_011#Text. (hereinafter referred to as «the AA») makes provision for the rapprochement of the private legislation of Ukraine to acquis communautaire in the field of corporate regulation, intellectual property, contractual relations, etc., but it does not contain special rules relating to the private international law issues. Only Article 24 of the AA Ibidem, 2014., which covers legal cooperation, notes that the parties intend to develop further judicial cooperation in civil cases based on relevant multilateral legal documents, in particular the conventions of the Hague Conference on Private International Law in the areas of international legal cooperation Conventions, protocols, and principles. Hague Conference on Private International Law. (n.d.). Retrieved from https://www.hcch.net/en/instruments/conventions., litigation, and child protection.

According to Prof. J. Basedow, such «blind spots» of the AA Association Agreement between Ukraine, of the one part, and the European Union, the European Atomic Energy Community and their Member States, of the other part. (2014, June). Retrieved from https://zakon.rada.gov.ua/laws/show/984_011#Text. regarding the PIL are understandable when it comes to mutual recognition of court decisions within the EU, established by the Brussels I Regulation Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ 2012 L 351/1. (2012, December). Retrieved from https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32012R1215. but the harmonisation of conflict-of-laws regulation, for example, relating to non-contractual obligations, established by other acquis documents, «does not affect the sovereignty of associated states, such as Ukraine», and can contribute to the development of a good-neighbourly policy [8, p. 16]. Comments by Prof. J. Basedow, according to the authors of this study, are quite reasonable. Unfortunately, the National Programme of Adaptation of Ukrainian Legislation to EU Legislation Law of Ukraine No. 1629-IV “On the National Program for Adaptation of the Legislation of Ukraine to the Legislation of the European Union”. (2004, March). Retrieved from https://zakon.rada.gov.ua/laws/show/1629-15#n16., approved on May 18, 2004, does not make provision for particular measures for rapprochement of national conflict-of-laws regulation and does not contain a list of corresponding regulations of the EU and Ukraine.

It appears that upon developing the conceptual framework for modernising the provisions of the PIL, most of all, it is necessary to conduct an in-depth analysis of the EU regulatory framework and determine the list of acquis acts of priority importance, as well as the scope and limits of adaptation of legislation in this area. At present, the Concept briefly mentions only the EU regulations «Rome I»¹ and «Rome II» Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I). Retrieved from https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=0J:L:2008:177:0006:0016:En:PDF. Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II). Retrieved from https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32007R0864&from=en. as such that should improve the institution of autonomy of the will in Ukraine [4, p. 61].

Notably, such research and identification of priorities are quite a difficult and time-consuming task. As Prof. T.K. Grazianonotes, «over the past two decades, the number of EU regulations in the field of private international law has grown at breakneck speed, on the one hand, this has eliminated many gaps, but, on the other hand, it is becoming increasingly difficult to determine the scope of EU regulations. Moreover, the same legal terms have different meanings in different regulations, there are complex issues concerning the interaction of procedural provisions and provisions regarding the choice of proper law. That is, the system of private international law of the EU is becoming increasingly difficult to apply and risks losing its consistency» [28, p. 585].

The need to systematise EU conflict-of-laws legislation is currently being discussed by the European academic community and EU advisory bodies. As one of the options for solving the issue, the possibility of adopting the European Code of Private International Law is considered, the draft of which is being developed by experts of the Directorate General of Internal Policy of the EU [29, p. 75]. In the authors' opinion, this experience is worthy of attention and should also be considered when determining ways to update the PIL of Ukraine. The EU's legislative activity in the field of private international law has considerably affected the internal codifications of Member States, but it is impossible to completely replace national legislation at this stage of integration. Therefore, the study of options for modernising conflict-of-laws regulation at the national level is important for the further development of the Ukrainian PIL doctrine and legislative activities.

The second external factor to which the Concept attaches special importance are the civil codes of France Civil Code of France. (2020). Retrieved from https://hindravi.files.wordpress.com/2019/12/french-civil-code.pdf. and Germany Civil Code of Germany. (2002). Retrieved from https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.pdf. - «bastions» of civil law in continental Europe, the reform of which over the past decade affects the legislative processes of neighbouring states. It is impossible to disagree with this statement, but it is worth noting that in the field of conflict-of-laws regulation, the approaches used in both countries are based on ideas that clearly do not coincide with the proposals of the authors of the Concept.

Germany is one of the countries that have an autonomous national PIL codification. In 1986, the Law «On New Regulation of Private International Law» The Law of Germany on Private International Law. (1986, July). Retrieved from https://www.bgbl.de/xaver/bgbl/start. xav?start=//*%5B@attr_id=%27bgbl186s1142.pdf%27%5D#__bgbl__%2F%2F*%5B%40attr_id%3D%27bgbl186s1142. pdf%27%5D__1622817586757. introduced Chapter Two of the Introductory Law to the Civil Code of Germany, entitled «Private International Law». However, as Prof. Jan von Hein notes, due to the constant expansion of EU conflict-of-laws legislation, the scope of application of national provisions is becoming narrower, with courts applying internal conflict-of-laws rules only in the absence of corresponding European regulation or an international treaty [30].

France belongs to a number of states where private international law is not codified. Prof. Gilles Cuniberti, highlighting French legislation in the Encyclopaedia of Private International Law, notes as follows: «ironically, the birthplace of the Civil Code has never had a comprehensive regulation of private international law… except for three articles of the Civil Code of the Napoleonic era: Article 3 (on the applicable law) and Articles 14-15 (on the choice of jurisdiction)» [31, p. 2079]. Today, conflict-of-laws rules on the applicable law are contained in certain national laws governing family and property relations, numerous universal and bilateral agreements on private international law, as well as EU regulations. Conventionally, the practice of higher courts is of great importance for governing relations with a foreign element. French legal doctrine proceeds from the fact that the casuistry of legal matter necessitates the construction of decisions in accordance with each particular case, which judicial practice succeeds in much better than codes. Prof. Pierre Mayor, in particular, argues that «the extremely complex nature of the problems being solved requires compliance with the concept of legal provisions that are created based on consideration of particular situations. If we do not have such a beacon, then the human mind, whatever the inherent power of abstraction, risks falling into error» [32]. The French approach is not unique in Europe, the PIL is not codified in the Scandinavian countries (Denmark, Norway, Sweden, Finland, Iceland), as well as in Ireland and Cyprus.

Eleven European countries, five of which are former republics of the USSR (Russia, Belarus, Armenia, Latvia, Lithuania, Moldova), have carried out interbranch PIL codification and placed the main array of conflict-of-laws rules in one of the last sections (books) of the civil codes, and individual institutions in family, commercial, and other codified acts. However, the absolute majority (twenty-five countries) have special laws on the PIL, or the PIL codes (Belgium, Bulgaria, Turkey), which also include the rules of international civil procedure, that is, these countries have performed a comprehensive autonomous codification of PIL.

Consequently, the complexity of conflict-of-laws rules in the vast majority of legal systems does not prevent the PIL codification - on the contrary, codification in theory and practice is considered a means of overcoming excessive complexity and casuistry. As noted by R. Cabrillac, the code does not necessarily have to simplify, it can consolidate complex realities, «nothing prevents formulating decisions found by judicial practice in one or two abstract provisions» [7, p. 392]. Significant, from this point of view, is the PIL codification in the UK. Neither the complexity of English law nor its casuistry prevented the adoption of the PIL law in 1995¹, where a small scope of relations in this area has been settled, but with a trace of desire for broader codification. Notably, in most countries of the Anglo-Saxon legal system, unofficial PIL codifications are popular, such as the work Dicey, Morris & Collins on the Conflict of Laws [33], where the relevant precedents are systematised. In the United States, the first (1934) [34] and second (1971) sets of rules on conflict of laws are widely known [35] (Restatements of the Conflict of Laws), the latter is a 30-volume publication, where precedents are systematised and set out in the form of articles of the law. In 2014, the American Institute of Law commenced the development of the third Restatement, which should radically reconsider the American tradition of conflict-of - law regulation [36].

Thus, according to the authors of this study, there is no reason to assert that interbranch codification, that is, the placement of an array of conflict-of-laws rules in civil codes, is confirmed by the current legislative practice of European countries. On the contrary, the vast majority of countries in the continental legal system implemented autonomous codification of the PIL at the beginning of the third millennium, a trend that remains dominant and is gaining popularity even in common law states.

The third external factor considered by the authors of the Concept as decisive for applying an interbranch approach to the recodification of PIL in Ukraine is the experience of new EU Member States. However, the analysis demonstrates that only three countries that are considered as new EU members use a cross-branch approach, namely Romania, Latvia, and Lithuania. Other countries, including Bulgaria, Estonia, Poland, Slovenia, Slovakia, Hungary, Croatia, Czech Republic, etc., have separate laws or codes of the PIL.

The authors of this study are particularly interested in the experience of the Baltic States, which from the middle of the 19^th century and prior to the Soviet occupation had a unified Baltic Civil Code [37], also had almost similar legislation in the Soviet period, but after the restoration of independence chose entirely different approaches to the PIL codification. The least developed is conflict-of-laws regulation in Latvia, where certain provisions of the PIL are placed in the Introductory Law to the Civil Code, which was in force since 1937 and was updated in 1992 in an almost unchanged wording Private International Law (Miscellaneous Provisions) Act. (1995, November). Retrieved from https://www.legislation.gov.uk/ ukpga/1995/42. Civil Law of Republic of Latvia. (1937, January). Retrieved from http://www.vvc.gov.lv/export/sites/default/LV/publikacijas/ civillikums.pdf.. Seventeen articles of this regulation (Articles 7-24) contain strict conflict-of-laws rules that have a structure inherent in codifications of the middle of the 20th century, while Article 25 establishes the priority of international treaties in governing cross-border private relations: «the rules of this law apply to the extent that otherwise is not established by international treaties and conventions in which Latvia takes part».

In the Civil Code of Lithuania Civil Code of the Republic of Lithuania. (2000, July). Retrieved from https://e-seimas.ks.lt/portal/legalActPrint/lt7jfwidM4f2280h qa&documentId=TAIS.400592&category=TAD. of 2000, a separate chapter covers the issues of the PIL, where five articles contain general rules of conflict-of-laws: application of foreign law, restrictions on the application of foreign law, determination of the content of foreign law, international treaties and reverse references, and forty-seven articles govern individual institutions of the general part of the PIL. The Civil Code of Lithuania also recognises the priority of international treaties, but reservations are made regarding their direct application and compliance with a unified approach to the interpretation of terms. The Lithuanian model is more advanced than the Latvian one, but it considerably differs from the latest codifications of Western European states. Scientists from Latvia and Lithuania and representatives of the judiciary, upon discussing ways to improve conflict-of-laws legislation, more frequently suggest referring to the experience of autonomous codifications of EU Member States. Thus, professor of Vilnius University Valentinas Mikelenas considers that the absence of a single law on private international law and the dispersion of conflict-of-laws rules between different codes «is the weakest link in the reform of private international law» in Lithuania. The scientist hopes that this is only the first stage, the next step of the reform will no longer be a «leap into darkness» for Lithuanian judges and scientists [17, p. 181].

Unlike Lithuania and Latvia, Estonia has had a separate Law «On Private International Law» in force since 2002 The Law of Estonia on Private International Law. (2002, March). Retrieved from https://www.riigiteataja.ee/akt/13242136., which was developed by German, Swiss, and Austrian lawyers, since Estonia traditionally belongs to the German legal family [15]. The law was drafted according to the Swiss model and included both the rules of the PIL and the rules of international civil procedure, but only conflict-of-laws regulation was ultimately introduced. The scientific literature notes the modernity and thoughtfulness of the principles for determining the competent legal order proposed by the Estonian legislation, the presence of blanket rules containing references to EU legislation and The Hague Conventions on private international law. The indisputable advantages also include detailed conflict-of-laws regulation of ownership relations for such objects as vehicles and securities, devoting articles to certain types of obligations (consumer agreements, assignment of claims, insurance agreements, etc.). Therewith, the regulation of certain PIL issues is contained in other regulations: in the Laws «On Succession»¹ of 2009, «On Investment Funds» The Law of Estonia on Succession. (2008, January). Retrieved from https://www.riigiteataja.ee/akt/104012021036. Investment Funds Act of Estonia. (2016, December). Retrieved from https://www.riigiteataja.ee/akt/131122016003. of 2004 and in Chapter 62 «Proceedings on Cases on Recognition of the Execution of Acts of Foreign Judicial and Other Bodies» of the Civil Procedural Code Code of Civil Procedure of Estonia. (2005, April). Retrieved from https://www.riigiteataja.ee/akt/109042021017. of 2005.