Encyclopedia of Private International Law
Show Less

Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
Buy Book in Print
Show Summary Details
Limited access

Georgia

Georgian Law on Private International Law1

Official Gazette 19–20, 29 April 1998

Section I General Provisions

Art. 1 Scope of application

This law determines the applicable law and the procedural rules to be applied when a case is connected with a foreign legal system.

Art. 2 International conventions

The provisions of international conventions take precedence over this statute.

Art. 3 Establishing the content of foreign law

  • In the application of foreign law, the court is to take necessary measures to establish the content of foreign law having regard to its official interpretation and the practice of its application and related doctrine.

  • If, despite all researches, the content of foreign law cannot be established, or its content cannot be effectively established with reasonable efforts and in due course, and none of the parties is capable of determining and proving its content, court will apply Georgian law.

Art. 4 Reference to foreign law

  • If reference is made to the law of another state, the private international law of that state must be applied, to the extent this is not incompatible with the meaning of the reference or the reference itself does not imply the direct application of substantive provisions of the applicable law.

  • If the law of another state refers back to Georgian law, the substantive provisions of Georgian law will apply.

  • Where the parties can choose the law of a certain state, it is presumed that the choice relates only to the substantive provisions.

Art. 5 Public order

The provisions of foreign law will not be applied if they conflict with Georgian public policy.p. 3215

Art. 6 Application of mandatory rules

The provisions of this law may not prejudice the application of Georgian mandatory rules, irrespective of which legal system is applied in a given case.

Art. 7 States with multiple legal systems

If reference is made to the law of a state having several partial legal systems, determination of which legal system is applicable will be made in accordance with the legislation of that state. Absent such rules, the partial legal system to which the subject matter has the closest connection will be applied.

Section II International Jurisdiction of Georgian Courts

Art. 8 The principle of international jurisdiction

The Georgian courts have international jurisdiction where the defendant has domicile, a place of business or habitual residence in Georgia.

Art. 9 Cases of international jurisdiction

The Georgian courts have international jurisdiction, where:

  • there are multiple defendants and one of the defendants has domicile, a place of business or habitual residence in Georgia;

  • the place of performance of the contractual obligation is in Georgia;

  • the place where the wrongful action or harmful event occurred is in Georgia;

  • the dispute has arisen out of direct relations with a branch of a legal person, if the branch is registered in Georgia.

  • the child or a person applying for maintenance is domiciled or has habitual residence in Georgia; or

  • the subject matter of the dispute is the right of succession and the division of assets, provided that at the time of death the deceased was domiciled or had habitual residence in Georgia, or his/her property was located in Georgia.

Art. 10 The exclusive international jurisdiction

The Georgian courts have an exclusive international jurisdiction only in cases relating to:

  • rights in rem in immovable property if the property is located in Georgia;

  • the validity of the status of legal persons or of the validity of the decisions of their organs;

  • the validity of entries related to legal persons in Georgian public registers;

  • the registration or validity of patents, trademarks or other similar rights if the application? or registration has been applied for or has taken place in Georgia; or

  • the enforcement of judgments, provided that the enforcement of the judgment was carried out in Georgia, or is sought in Georgia.p. 3216

Art. 11 The terms and consequences of declaration of an absence unheard from and of death

The Georgian courts have international jurisdiction in actions relating to the terms and consequences of declaration of a missing person and of death, where:

  • the person in question is a Georgian citizen;

  • the person in question has a habitual residence in Georgia; or

  • the requesting party has a justifiable reason to bring the action before Georgian courts.

Art. 12 Matrimonial matters

  • The Georgian courts have international jurisdiction in actions relating to matrimonial matters, where:

    • one of the spouses is a Georgian citizen or was a Georgian citizen at the time of marriage;

    • a spouse against whom the claim is sought has habitual residence in Georgia; or

    • one of the spouses is stateless but has habitual residence in Georgia.

  • Matrimonial matters concern claims related to validity and annulment of marriage, separation and divorce and establishing the fact of factual cohabitation of spouses.

  • The jurisdiction provided under the first paragraph also applies to the effects of marriage.

Art. 13 Parent-child-relationship, descent of a child and related claims

The Georgian courts have international jurisdiction in actions relating to parent child relations, descent of a child and related claims, where one of the parties is Georgian citizen or has habitual residence in Georgia.

Art. 14 Adoption

The Georgian courts have international jurisdiction in actions relating to adoption where the adopting parent, parents or child are Georgian citizens or have habitual residence in Georgia.

Art. 15 Limitation of legal capacity of natural Persons

The Georgian courts have international jurisdiction in actions relating to the limitation of legal capacity and capacity to act if the person in question is a Georgian citizen or has habitual residence in Georgia.

Art. 16 Adult guardianship

  • The Georgian courts have international jurisdiction in actions relating to the adult guardianships and other protective measures, if the guardian or the person for whom the guardianship should be established is a Georgian citizen or has habitual residence in Georgia.

  • The Georgian courts also have international jurisdiction in actions relating to adult guardianships if the guardian or the person for whom the guardianship is sought requests a decision from the Georgian court.

  • […]p. 3217

Art. 18 Agreements on international jurisdiction

  • Parties may agree on the jurisdiction of Georgian courts even when according to Articles 8, 9 and 10 the Georgian courts have no international jurisdiction. Such an agreement conferring jurisdiction will be either:

    • in writing or evidenced in writing; or

    • in international trade, executed in a form which accords with practices in that trade of which the parties are or ought reasonably to have been aware.

  • The Georgian courts have international jurisdiction where the defendant enters an appearance before a court without challenging its jurisdiction while

    • the defendant has been instructed by the court on the right to challenge; and

    • the defendant was represented by an attorney.

  • Parties may agree on the jurisdiction of another state if one of the parties has domicile, a place of business or habitual residence in a foreign state. Paragraph 2 of this provision applies correspondingly.

  • No international jurisdiction may be stipulated contrary to Articles 10–16 of this Act. This rule also applies to paragraph 2 of the current provision.

Art. 19 Lis pendens

  • The Georgian court will stay any proceedings brought before it if other proceedings based on the same facts, involving the same cause of action and between the same parties, were brought earlier before a foreign court and the latter proceedings are expected to be concluded within a reasonable time by a judgment which is entitled to recognition and enforcement in Georgia.

  • If there is a foreign judgment involving the same cause of action between the same parties, the Georgian court will decline its own jurisdiction if the foreign judgment is entitled to recognition and enforcement in Georgia.

Art. 20 Introductory measures to secure the claim

The Georgian courts have international jurisdiction over introductory measures to secure the claim where these measures have to be adopted in Georgia or Georgian courts have international jurisdiction in related actions.

Section III Persons

[…]

Art. 22 Personal Status

  • If a person is a national of two or more States, the law applicable will be that of the state with which the person has the closest connection, where the person is habitually resident or habitually carries out his/her activities.

  • If a person is stateless or if his/her nationality cannot be determined, the law of the state is applicable in which the person has habitual residence or habitually carries out his/her activities. If none of those connecting factors can be applied, the Georgian law will be applied.p. 3218

Art. 23 The Legal capacity and capacity to contract of a Natural Person

  • The legal capacity and capacity to act of a natural person are governed by the law of the state of which the person is a national. This is also applicable where the capacity to act is extended by marriage.

  • The once acquired legal capacity or capacity to act is not affected by the acquisition or loss of legal status as a Georgian national.

Art. 24 The legal capacity of legal persons

The legal capacity of a legal person is governed by the law of the state where the legal person has its actual seat. This also applies to the branches and other forms of establishment of a legal person.

[…]

Art. 26 Name

  • The name of a natural person is governed by the national law of the person.

  • The name of a legal person is governed by the law of the state where the legal person has its actual seat.

Section IV Legal Acts

Art. 27 Validity of legal acts

  • The material validity of a legal act is governed by the law which is applicable to the legal relation forming the subject matter of the legal act.

  • Nevertheless a party may rely upon the law of the state of his/her habitual residence to establish that he/she did not consent if it appears from the circumstances that it would be unreasonable to determine the effect of that party’s conduct in accordance with the law specified in the preceding paragraph.

Art. 28 Agency

Absent agreement on the law applicable to agency, the law of the state will be applied where the agent usually carries out its activities. If there is no such state, the law of the state will be applied where the agent is habitually resident. If the case is closely connected to a state where the agent has performed its actions, especially when the agent or the third party has a place of business or habitual residence in that state, then the law of this state will be applied.

Art. 29 Formal Validity of Legal Acts

  • The formal validity of legal act is determined by the law of the state where the legal act was concluded or by the law which is applicable to the legal relation forming the subject matter of the legal act. A legal act concluded between persons who are in different states is formally valid if it observes the formal requirements of the law of one of these states.

  • p. 3219Where a contract is concluded by an agent, the state in which the agent acts is the relevant state for the purposes of paragraph 1.

  • A legal act the subject matter of which is a right in immovable property or transfer of a right in immovable property is formally valid if it satisfies the formal requirements of the law which governs the status of the property forming the subject matter of the legal act.

  • A legal act creating or transferring a right in rem is formally valid only if it observes the formal requirements of the law that is applicable to the legal relation forming the subject matter of the legal act.

Art. 30 Limitation period

The law applicable to limitation periods is the law governing the claim.

[…]

Chapter V

Property rights

Art. 32 Property Rights

  • Possession, ownership and other rights in rem in movable and immovable property is governed by the law of the State in which the property is located. This will apply even in cases where the underlying transaction is governed by the law of another state.

  • If an item to which property interests are attached is moved to another state, these interests may not be exercised in conflict with the legal order of that state.

Art. 33 Means of transport

  • The property rights over aircraft, vessels and railway rolling stock are subject to the law of the state to which they belong.

  • The property rights over goods in transit by aircraft, vessels and railway rolling stock are subject to the law of the state of their final destination.

Art. 34 Immaterial Property

Immaterial rights are subject to the law of the state where these rights are to be exercised.

Art. 35 Choice of law

  • Rights and obligations arising out of contractual relationships, especially, construction, performance, termination, effects of nullity, violation of contractual obligations, including violation of pre- and post-contractual obligations are governed by the law chosen by the parties.

  • The parties may at any time agree to subject the contract to a law other than that which previously governed it.

  • The choice of law is invalid if it ignores the mandatory provisions of the state to which the contract is most closely connected.p. 3220

Art. 36 Applicable law absent choice of law

  • Absent a choice of law applicable to the contract, the contract will be governed by the law of the state of the closest connection. It will be presumed that the contract is most closely connected with the state where the party who is to effect the characteristic performance of the contract has at the time of conclusion of the contract habitual residence or its central administration.

  • To the extent that the subject matter of the contract is a right in immovable property it will be presumed that the contract is most closely connected with the state where the immovable property is located.

  • A contract for the carriage will be presumed to be most closely connected with the state in which at the time the contract is concluded the carrier has its principal place of business provided this is also the state in which the place of loading or the place of discharge or the principal place of business of the consignor is located. Otherwise paragraph 1 of this provision will be applied.

  • An insurance contract will be presumed to be most closely connected with the state in which the main part of the insured risk is located.

Art. 37 Assignment of Rights

  • The obligations of assignor and assignee under a voluntary assignment of a right are governed by the law that applies to the contract between the assignor and assignee.

  • The law governing the right to which the assignment relates will determine its assignability and the relationship between the assignor, assignee and the debtor.

Art. 38 Mandatory Rules of Social Character

The choice of law is invalid if it ignores the mandatory rules that are aimed at protection of consumers and employees from discrimination. This provision also applies to employment contracts and other kinds of contract the object of which is the supply of goods or services, provided the contracts are concluded in the state where the consumer or employ have domicile.

[…]

Art. 40 Negotiorum gestio

  • Claims arising out of acts performed without due authority in connection with the affairs of another person are governed by the law of the state in which the act was performed.

  • Claims arising out measures taken to compensate for damage or avoid further damage caused by a collision or other kinds of adversity at sea are governed by the law of the state of the flag of the vessel in question.

  • Claims arising out satisfying debts of another person are governed by the law that governs the debt.

Art. 41 Unjust enrichment

  • Claims of unjust enrichment are governed by the law that governs the underlying legal relationship to which the performance is related.

  • Claims of unjust enrichment arising out of an infringement to a protected interest are governed by the law of the state where the infringement occurred.

  • In other cases claims of unjust enrichment are governed by the law of the state in which the result of enrichment occurred.p. 3221

Art. 42 Torts

  • The obligation to recover damages is governed by the law:

    • which is more beneficial to the person sustaining the damage;

    • of the state in which the event giving rise to the damage occurred; or

    • of the state in which the damage occurred.

  • Instead of the law applicable under the previous paragraph the law of the state will be applied:

    • where the person alleged to be liable and the person sustaining damage both have common habitual residence; or

    • where the claim is related to a non-contractual obligation arising out of an act of unfair competition, where the market is, or is likely to be, affected, provided that the act of unfair competition does not exclusively affect the interests of a specific competitor.

  • The injured party may bring the claim directly against the insurer of the person liable to provide compensation if the law applicable to the claim arising out of a tortious act or the law applicable to the insurance contract so provides.

Art. 43 Choice of law governing the non-contractual obligations

The parties may choose a law applicable to a non-contractual obligation After the event giving rise to the obligation has occurred. Rights of third parties may not be prejudiced.

Chapter VII Family Law

Art. 44 Conditions of Marriage

  • The conditions regarding the validity of a marriage are governed, for each spouse, by the law of the State of the spouse’s nationality when the marriage is celebrated.

  • If any of the requirements set by an applicable law is not fulfilled, Georgian law will apply if the habitual residence of one of the spouses is within Georgia or one of the spouses is a Georgian national, and:

    • the limitations set by foreign law are contrary to Georgian custom;

    • the previous marriage of a person intending to marry does not impede the new marriage;

    • the previous marriage of a person intending to marry has been nullified or terminated by a decision issued or recognized in Georgia; or

    • the spouse of the person intending to marry has been declared dead.

  • The conditions regarding the formal validity of a marriage are governed by the law of the state where the marriage is celebrated. However, a marriage between two persons, either of whom is a foreign national, may be celebrated according to the law of the state of which that person is national.

Art. 45. Effects of Marriage

  • The general effects of the marriage are governed by:

    • the law of the state of each spouse’s nationality during the marriage;

    • in which each of the spouses has or last had habitual residence during the marriage;

    • otherwise, the law of the state with which the spouses are jointly most closely connected.

  • Absent a choice of law,the paragraph 1 of this Article will also apply to the matrimonial property regime. The spouses may choose for their matrimonial property regime:

    • the law of the state of which one of them is a national;

    • the law of the state in which one of them has habitual residence;

    • the law of the state in which the real property is located.

  • p. 3222Spouses with refugee status or asylum may choose for their matrimonial property regime the law of the state in which both spouses have a new habitual residence

  • The choice of law must be certified by a notary.

  • […]

Art. 47 Divorce and legal separation

  • Divorce and legal separation are governed by the law governing the effects of marriage.

  • However, to the extent that a divorce or a legal separation cannot be granted pursuant to the above, the divorce will be governed by Georgian law if the spouse requesting the divorce is a Georgian national or was one when the marriage was celebrated.

Art. 48 Maintenance Obligation

  • Maintenance obligations will be governed by the law of the State of the creditor’s habitual residence. If by virtue of this Act the creditor is unable to obtain maintenance from the debtor, the law of their common nationality will apply. If by virtue of the laws referred to in previous provisions the creditor is unable to obtain maintenance from the debtor, Georgian law will apply.

  • In the case of maintenance obligations arising out of the relations between the relatives in the direct line, the debtor may contest a claim from the creditor on the ground that there is no such obligation under the law of the States of their common nationality. If the creditor and the debtor have no common nationality, the claim may be adjudicated/resolved by reference to the law of the State of the debtor’s habitual residence.

  • In the case of a maintenance obligation between parties to a marriage which has been dissolved in Georgia, the law applied to the divorce will be applied. This provision also applies to other forms legal separation.

  • If both creditor and debtor are Georgian nationals and the debtor has habitual domicile in Georgia, Georgian law will be applied.

  • The law applicable to the maintenance obligation determines:

    • to which extent and from whom the maintenance creditor can claim maintenance;

    • who can lodge a claim for maintenance and within which period this must be done;

    • the extent of the claims against the creditor subrogated to the state.

    • Even if the applicable law provides otherwise, the needs of the creditor and the assets of the debtor will be taken into account in determining the amount of maintenance.

Art. 49 Parent Child-Relationship

The property and non-property relations between a child and his/her parents, including custody, are governed by the law of the state in which the child has habitual residence. However, where the best interest of the child so requires, the court will apply the law of the state of which the child is a national.

Art. 50 Descent

  • A child’s descent is governed by the law of the state where the child has habitual residence. In relation to each parent the descent can also be determined by the law of the state of that parent’s nationality. If the mother is married, the descent can also be determined by the law p. 3223that governs the general effects of the marriage under Article 45 at the time of birth of the child; if the marriage was dissolved previously by death, the material time is the time of dissolution.

  • If the parents are not married to each other, the obligations of the father towards the mother due to pregnancy are governed by the law of the state of the mother’s habitual residence.

Art. 51 Challenge of the descent

Descent may be challenged according to any one of the laws that govern its preconditions. The descent may in any event be challenged under the law of the child’s habitual residence.

Art. 52 Adoption

The adoption of a child is governed by the law of the state of which the adopter is a national at the time of the adoption. The adoption by one or both spouses is governed by the law which applies to the general effects of the marriage.

Art. 53 Preconditions to consent

The necessity and the granting of the consent of the child, and of a person who is related to the child, to a declaration of descent, to conferring a name, or to an adoption are additionally governed by the law of the state of which the child is a national. Where the best interests of the child so requires, Georgian law will be applied instead.

Art. 54 Guardianship, protective care and curatorship

  • The creation, modification of the content and termination of guardianship, protective care or other forms of curatorship, as well as the substance of legal guardianship and curatorship, are governed by the law of the state of which the ward is a national. A guardian or a protector may be appointed pursuant to Georgian law for a foreign national, a person with a refugee status or asylum who has domicile in Georgia.

  • If there is an urgent need to take legal measures related to guardianship but it is not clear who is a party to an issue, or a party to an issue is presently in another state, the law most favourable for the ward will be applied.

  • Interim measures relating to establishment of guardianship, protective care or other forms of curatorship are governed by the law of the state which issued the order.

Section VIII Succession law

Art. 55 Legal relationships related to succession

Succession is governed by the law of the state of which the deceased was a national at the time of death. To the extent that the deceased has no nationality, the succession is governed by the law of the state in which the deceased had habitual residence at the time of death. Otherwise Georgian law will be applied.p. 3224

Art. 56 Form of the will

  • A testamentary disposition is valid as regards form if its form complies with the formal requirements:

    • of the law of the state of which the testator was a national at the time of death;

    • of the law of the state in which the testator had habitual residence at the time of death; or

    • so far as real property is concerned, of the law of the place where the property is located.

Section IX Procedural rules

[…]

Art. 68 Recognition of foreign judgments

  • The final judgments of foreign courts are entitled to recognition.

  • A foreign judgment will not be recognized, where:

    • the cause of action falls under the exclusive jurisdiction of Georgian courts;

    • the defendant was not properly notified of proceedings according to the law of the state where the judgment was rendered or, other procedural violations have taken place;

    • if an effective judgment has been given or recognized by a Georgian court based on the same facts, involving the same cause of action and between the same parties;

    • the foreign court had no jurisdiction according to Georgian law;

    • the foreign state does not recognize the decisions rendered by Georgian courts;

    • the proceedings based on the same facts, involving the same cause of action and between the same parties, are pending before Georgian courts; or

    • the recognition is contrary to Georgian public policy.

  • A judgment falling under paragraph 2, subparagraph ‘e’ of the current provision may be recognized in Georgia as far as the judgment does not involve pecuniary claims or claims related to property and Georgian courts have no internal jurisdiction over that kind of claims.

  • A judgment falling under paragraph 2, subparagraph ‘f’ of the current provision may be recognized in Georgia after the proceedings pending in Georgia are over.

  • An action for recognition of a foreign judgment will be brought before the Georgian Supreme Court.

Art. 69 Judgments relating to matrimonial matters

  • No recognition of a foreign judgment is required if it was rendered in the State of which both spouses are nationals.

  • A decision of the Supreme Court regarding the recognition of a foreign judgment is final.

Art. 70 Enforcement of foreign judgments

  • A foreign judgment relating to civil and labour law claims will be enforced in Georgia if it is enforceable under Georgian legislation.

  • A decision on the enforcement of a foreign judgment is issued upon the request of an interested party.

  • An action for enforcement of a foreign judgment will be brought before the Georgian Supreme Court.p. 3225

Art. 71 Procedures relating to enforcement of foreign judgments

  • The request to enforce a foreign judgment must be accompanied by an authenticated copy and translation of the judgment, and if it does not clearly result from the judgment, a certificate to the effect that the said judgment has taken effect and is entitled to be enforced.

  • Before granting the enforcement the court must review the compatibility of the judgment with conditions set out in Article 68 of this Act.

  • No court hearing will take place without a request of the parties. The defendant is to be instructed upon service of the notification of his/her right to be heard. It also has to be explained to the defendant that no court hearing will take place without the defendant’s request.

  • (omitted).

Art. 72 Recognition and Enforcement of Court Settlements and other authentic acts

  • The provisions of Articles 70 to 71 apply to court settlements and authentic acts of the foreign courts and other authorities correspondingly.

  • A foreign judgment will not be recognized, where enforcement is contrary to Georgian public policy.

Art. 73. Recognition and enforcement of foreign arbitral awards

  • Foreign arbitral awards will be recognized and enforced according to the Law of arbitration.

Section X Transitional measures

Art. 74. Entry into force

This law will enter into force on December 1 1998.

Unofficial Translation by Ass. Prof. George Vashakidze, Dr. iur., LL.M, MES (Hamburg), Illia State University Tbilisi (Georgia) based on the translation of the official English translation of the German Introductory Act to the German Civil Code.