Encyclopedia of Private International Law
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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.
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Belarus

Civil Code of the Republic of Belarus1

December 7, 1998 No 218-Z [Amended as of July 11, 2014]

Adopted by the Chamber of Representatives (October 28, 1998)

Approved by the Council of Republic (November 19, 1998)

[…]

Section VII International Private Law

Chapter 74 General provisions

Article 1093. Determination of Law, Subject to Application in Civil Legal Relations Complicated by Foreign Element

  • The law, being subject to application in civil-legal relations with participation of the foreign citizens or foreign legal persons or complicated by other foreign element, shall be determined on the grounds of the Constitution of the Republic of Belarus, this Code, other legislative acts, treaties of the Republic of Belarus and the international customs, not contrary to the legislation of the Republic of Belarus.

  • The agreement of the parties concerning selection of the law shall be clearly expressed or shall directly follow from the terms and conditions of the contract and the circumstances of the case, considered in aggregate.

  • If it is impossible to determine the law, which is subject to application, in accordance with Clause 1 of this Article, the law shall be applied, most closely connected with the civil legal relations, complicated by foreign element.

  • The rules of this Section on determination of the law for application by the court shall be accordingly applied by other bodies, authorized to make the decisions concerning the law which is subject to application.

Article 1094. Qualification of Legal Concepts

  • At determination of the law subject to application, the court shall be based on interpretation of the legal concept in accordance with the law of the country of the court, unless otherwise provided for by the legislative acts.

  • If the legal concepts, requiring the legal qualification, are not known in the law of the country of the court or are known under another name or with another contents and may not be determined p. 2959by interpretation by the law of the country of the court, then, for qualification thereof, the law of the foreign state may be applied.

Article 1095. Determination of Content of Norms of Foreign Law

  • At application of the foreign law, the court or another state body shall determine the content of its norms in accordance with official interpretation and practice of application thereof and with the doctrine in the respective foreign state.

  • For the purpose of determination of the content of rates of the foreign law, the court may apply, in accordance with established procedure, for assistance and explanation to the Ministry of Justice, other competent state bodies of the Republic of Belarus,

  • including those located abroad, or to involve experts.

  • The persons, participating in the case, shall have a right to submit the documents, confirming content of norms of the foreign law, to which they refer for grounding their demands or objections, and in any other way to assist the court in determination of content of these norms.

  • If the content of the norms of foreign law, in spite of the measures, undertaken in accordance with this Article, is not established within a reasonable time, the law of the Republic of Belarus shall be applied.

Article 1096. Remission and Reference to Law of Third Country

  • Any reference to foreign law in accordance with the rules of this Section, except for the instances provided by this Article, shall be considered as the reference to the substantive law, not to the collision law, of the corresponding country.

  • The remission to law of the Republics of Belarus and the reference to the law of the third country shall be applied in the events of application of the foreign law in accordance with Article 1103, Article 1104(1),(3),(5), Articles 1106 and 1109 of this Code.

Article 1097. Consequences of Evasion of Act of Legislation

Agreements and other actions of participants of the relations, regulated by the civil legislation, aimed, in evasion of the rules of this Section concerning the law subject to application, at subordinating the corresponding relations to another. In this event, the law of the corresponding state, subject to application in accordance with this section, shall be applied.

Article 1098. Reciprocity

  • The court shall apply the foreign law regardless of application of the law of the Republics of Belarus in the corresponding foreign state to similar relations, except for the instances when the application of the foreign law on the grounds of reciprocity is provided for by the legislation of the Republic of Belarus.

  • If the application of the foreign law depends on the reciprocity, it shall be supposed that it exists, insofar as otherwise is not proven.

Article 1099. Clause Concerning Public Procedure

The foreign law shall not be applied in instances when its application is contrary to the fundamentals of the law and order (the public procedure) of the Republic of Belarus, as well as in other cases, directly provided for by the legislative acts. In these instances, the law of the Republic of Belarus shall be applied.

Article 1100. Application of Imperative Norms

  • The rules of this section shall not affect the action of the imperative norms of the law of the Republic of Belarus, regulating the corresponding relations regardless of the law subject to application.

  • At application of law of some country (except for the Republic of Belarus), according to the rules of this Section, the court may apply the imperative norms of the law of other country, having close connection with the relation considered, if, in accordance with the law of this country, such norms p. 2960shall regulate the corresponding relations regardless of the law subject to application. Thereat the court shall take into consideration the purpose and the nature of such norms, as well as the consequences of application thereof.

Article 1101. Application of Law of Country with Plurality of Legal Systems

In instances when a law of the country is subject to application, in which several territorial or other legal systems exist, the legal system in accordance with the law of this country shall be applied.

Article 1102. Retorsions

The reciprocal restrictions (retorsions) concerning the rights of the citizens and the organizations of the states, in which the special restrictions of the rights of the citizens and the legal persons of the Republic of Belarus exist, may be established by the Government of the Republic of Belarus.

Chapter 75 Collision Norms

§ 1. Persons

Article 1103. Personal Law of Natural Person

  • The law of the country the citizenship of which that person has shall be considered to be the personal law of the natural person. If the person has citizenship (allegiance) of two or more states, the law of the country with which this person is most closely bound shall be considered to be the personal law. If a person has, along with the citizenship of the Republic of Belarus, citizenship (allegiance) of two and more foreign states, the law of the Republic of Belarus shall be considered its personal law.

  • For the person without citizenship, the law of the country, in which this person permanently reside, shall be considered to be the personal law of this person.

  • For the refugee, the law of the country which has granted asylum shall be considered to be the personal law of this person.

Article 1104. Legal Capacity and Active Legal Capacity of Person

  • Legal capacity and active legal capacity of person shall be determined by the personal law of the person.

  • The foreign citizens and person without citizenship shall take advantage of the civil legal capacity in the Republic of Belarus equally with the citizens of the Republic of Belarus, unless determined otherwise by the Constitution, laws and treaties of the Republic of Belarus.

  • The active civil legal capacity of the natural person concerning the transactions, effectuated in the Republic of Belarus, and the obligations, arising as a consequence of causing harm in the Republic of Belarus, shall be determined by the legislation of the Republic of Belarus.

  • The capacity of a natural person, carrying out entrepreneurial activity, to be an individual entrepreneur and to have the rights and duties, connected with this, shall be determined by the law of the country, where the natural person is registered as an individual entrepreneur. If there is no country of registration, the law of the country of the main place of effectuation of the individual entrepreneurial activity shall be applied.

  • Deeming of natural person to lack active legal capacity or limitation of active legal capacity of natural person shall comply with the law of the country of the court.

Article 1105. Deeming of Natural Person to be Missed and Declaration of Natural Person to be Deceased

Deeming of natural person to be missed and declaration of natural person to be deceased shall comply with the law of the country of the court.

Article 1106. Name of Natural Person

p. 2961The rights of the natural person to name, its application and protection shall be determined by the personal law of natural person, insofar as otherwise does not follow from the rules, provided for by the second part of Article 18(2), Article 18(4), Articles 1115 and 1132 of this Code.

Article 1107. Registration of Acts of Civil Status of Citizens of the Republic of Belarus Outside the Republic of Belarus

Registration of the acts of civil status of the citizens of the Republic of Belarus, living outside the territory of the Republic of Belarus, shall be effectuated in consular offices and in the diplomatic representations of the Republic of Belarus in the case of effectuating of consular functions by the latters. Herewith the laws and other acts of legislation of the Republics of Belarus shall be applied.

Article 1108. Recognizing of Documents, Issued by Bodies of Foreign State for Certification of Acts of Civil Status

The documents, issued by the competent bodies of the foreign state for certification of the acts of civil status, executed outside the territory of the Republic of Belarus in accordance with the acts of legislation of the corresponding states concerning the citizens of the Republic of Belarus, foreign citizens and stateless persons, shall be recognized to be valid in the Republic of Belarus under condition of legalization in accordance with the legislation, unless otherwise established by the treaties of the Republic of Belarus.

Article 1109. Trusteeship and Guardianship

  • The trusteeship or guardianship over the minors and over the persons who has reached majority but deemed to lack active legal capacity or limited in active legal capacity shall be established and cancelled in accordance with the personal law of the person, concerning which the trusteeship or guardianship shall be established or cancelled.

  • The duty of the trustee (guardian) to undertake the trusteeship (guardianship) determined in accordance with the personal law of the person appointed as the trustee (guardian).

  • The legal relations between the trustee (guardian) and the person, being under the trusteeship (guardianship), shall be determined in accordance with the law of the country, the institution of which has appointed the trustee (the guardian). However, if the person, being under the trusteeship (guardianship), lives in the Republic of Belarus, the law of the Republic of Belarus shall be applied, if it is more favorable for this person.

  • The trusteeship (guardianship), established over the citizens of the Republic of Belarus, living outside the territory of the Republic of Belarus, shall be recognized to be valid in the Republic of Belarus, if there are no objections of the corresponding consular institution of the Republic of Belarus, grounded on the legislation, against establishing or recognition of the trusteeship (guardianship).

Article 1110. Legal Capacity of Foreign Organizations, Not Being Legal Entities In Accordance With Foreign Law

The civil legal capacity of the foreign organizations, not being legal persons in accordance with the foreign law, shall be determined in accordance with the law of the country, where the organization is established.

Article 1111. Law of Legal Person

The law of the country, where the legal person is established, shall be considered to be the law of this legal person.

Article 1112. Legal Capacity of Foreign Legal Person

  • The civil legal capacity of the foreign legal person shall be determined in accordance with the law of the country, where this legal person is established.

  • The foreign legal person may not refer to restriction of powers of its body or representative concerning effectuation of transaction, if this restriction is not known for the law of the country, in which the body or the representative of the foreign legal person has effectuated the transaction.

Article 1113. National Regime of Activity of Foreign Legal Entities in the Republic of Belarus

p. 2962The foreign legal persons shall effectuate their entrepreneurial and other activity in the Republic of Belarus, regulated by the civil legislation, in accordance with the rules, established by this legislation for such activity of the legal persons of the Republic of Belarus, unless otherwise provided for by the legislation of the Republic of Belarus for the foreign legal persons.

Article 1114. Participation of State in Civil Legal Relations with Foreign Element

The rules of this section shall be applied on the common grounds to civil legal relations with a foreign element with the state participation, unless otherwise provided for by the legislative acts of the Republic of Belarus.

§ 2. Law Subject to Application to Personal Non-property Rights

Article 1115. Protection of Personal Non-property Rights

The law of the country, where the action or other circumstance has taken place, which served as the ground for demand concerning protection of personal non-property rights, shall be applied to the personal non-property rights.

§ 3. Transactions, Representation, Limitation period

Article 1116. Form of Transaction

  • The form of the transaction shall comply with the law of the place of its conclusion. However, the transaction, concluded abroad, may not be deemed to be invalid as the consequence of non-observance of the form, if the requirements of the law of the Republic of Belarus are observed.

  • The foreign economic transaction, in which at least one participant is the legal person of the Republic of Belarus or the citizen of the Republic of Belarus, shall be concluded in written form, regardless of the place of conclusion.

  • The form of transaction concerning the immovable property shall comply with the law of the country where this property is located. The form of transaction concerning the immovable property, which is registered in the Republic of Belarus, shall comply with the law of the Republics of Belarus.

Article 1117. Power of Attorney

The form and period of validity of power of attorney shall be determined in accordance with the law of the country, where the power of attorney is issued. However, the power of attorney may not be deemed to be invalid as the consequence of nonobservance of the form, if the form of power of attorney is in conformity with the requirements of the law of the Republic of Belarus.

Article 1118. Limitation period

  • The limitation period shall be determined in accordance with the law of the country, applicable for regulation of the corresponding relation.

  • The requirements, to which the limitation period shall not extend, shall be determined in accordance with the law of the Republics of Belarus, if at least one of the participants of the corresponding relation is the citizen of the Republic of Belarus or the legal person of the Republic of Belarus.

§ 4. Right of Ownership and Other Real Rights

Article 1119. General Provisions on Law Applicable to Right of Ownership and Other Real Rights

  • The right of ownership and other real rights in the immovable and the movable property shall be determined in accordance with the law of the country, where this property is located, unless otherwise provided for by the legislative acts.

  • The relegation of property to immovable or movable things, as well as another legal qualification of the property shall be determined in accordance with the law of the country, where this property is located.

Article 1120. Arising and Termination of Right of Ownership and Other Real Rights

  • p. 2963Arising and termination of right of ownership and other real rights in the property which is the subject of the transaction shall be determined in accordance with the law of the place of conclusion of transaction, unless otherwise established by the agreement of the parties.

  • Arising and termination of right of ownership and other real rights in the property, not concerning the transaction, shall be determined in accordance with the law of the country, where this property was located at the time, when the action or any other circumstance, served as the reason for arising or termination of right of ownership and other real rights, have taken place, unless otherwise provided for by the legislation of the Republic of Belarus. Arising of right of ownership and other real rights in the property as the consequence of the limitation period is determined by the law of the country, where the property was located at the time of expiry of the limitation period.

Article 1121. Right of Ownership and Other Real Rights in Means of Transport and Other Property Subject to State Registration

The right of ownership and other real rights in the means of transport and other property, which is subject to entering into the state registers, shall be determined in accordance with the law of the country, where these means of transport or the property are registered.

Article 1122. Right of Ownership and Other Real Rights in Movable Property in Transit

The right of ownership and other real rights to movable property, being in transit in connection with the transaction, shall be determined in accordance with the law of the country, from which this property has been dispatched, unless otherwise established by the agreement of the parties.

Article 1123. Protection of Right of Ownership and Other Real Rights

  • The law of the country, where the property is located, or the law of the country of the court shall be applied to protection of right of ownership and other real rights, at the discretion of the applicant.

  • The law of the country, where the property is located, shall be applied to protection of right of ownership and other real rights in the immovable property. Concerning the property, which is registered in the Republic of Belarus, the law of the Republic of Belarus shall be applied.

§ 5. Contractual Obligations

Article 1124. Choice of Law by Parties Under Contract

  • The parties under the contract, at conclusion of the contract or later, may choose, upon the agreement between them, the law which is subject to application to their rights and duties under this contract, if this is not contrary to the legislation.

  • The agreement between the parties concerning choice of the law which is subject to application shall be clearly expressed or shall directly follow from the conditions of the contract and circumstances of the case, being considered as a whole.

  • The choice, by the parties under the contract, of the law subject to application, made after conclusion of the contract, shall have the retroactive force and shall be considered to be valid from the time of its conclusion without prejudice to the rights of the third parties.

  • The parties under the contract may choose the law subject to application both for contract as a whole and for its individual parts.

Article 1125. Law Applicable to Contract in Event of Absence of Agreement of Parties

  • When there is no agreement of the parties under contract concerning the law subject to application, the law of the country shall be applied to this contract, where the following party has main place of its activity:

    • the seller, for the contract of purchase-sale;

    • the donor, for the contract of gift;

    • the lessor (renter), for the contract of lease (property rental);

    • the lender, for the contract of use of property without compensation (loan);

    • the independent work contractor, for the contract of independent work;

    • p. 2964the carrier, for the contract of carriage;

    • the forwarder, for the contract of forwarding;

    • lender (creditor) – in the contract of loan (credit contract);

    • the attorney, for the contract of commission;

    • the commission agent, for the contract of commission body;

    • the depository, for the contract of storage;

    • the insurer, for the contract of insurance;

    • the surety, for the contract of suretyship;

    • the pledgor, for the contract of pledge;

    • the licensor, for the license contract of using exclusive rights.

If it is impossible to determine the main place of activity of the party, specified in Subclauses 1–15 of this Clause, the law of the country, where this party is registered or has a place of residence, shall be applied.

  • To the rights and duties under the contract, the subject of which is the immovable property, and also under the contract of trust management of the property, the law of the country, where this property is located, shall be applied. Concerning the property registered in the Republic of Belarus, the legislation of the Republic of Belarus shall be applied.

  • If there is no agreement of the contractual parties concerning the law subject to application, then, regardless of provisions of Clause 1 of this Article, the lay specified below shall be applied:

    • to the contract on joint activity and to the contracts on f fulfillment of construction, mounting and other works for capital construction, the law of the country, where such activity shall be effectuated or the results provided for by the contract shall be created;

    • to the contract, concluded at the auction, the competition or at the exchange, the law of the country, where the auction or the competition is held or the exchange is located.

  • The law of the country, where the party under contract, carrying out the performance having the critical significance for the content of the contract, has its main place of activity, shall be applied to the contracts, not specified in Clauses 1–3 of this Article, when there is no agreement of the contractual parties concerning the law subject to application. If it is impossible to determine the main place of activity of the party, carrying out the performance having the critical significance for the content of the contract, then the law of the country shall be applied, where this party is established or has a permanent residence. If it is impossible to determine the performance having the critical significance for the content of the contract, then the law of the country shall be applied, with which the contract is most closely bound.

  • Concerning acceptance of performance under the contract, the law of the place of such acceptance shall be taken into consideration, insofar as otherwise not agreed between the parties.

  • If the trade terms, commonly used in the international turnover, are used in he contract, then, subject to the absence of any other indications in the contract, it shall be considered that the parties have agreed application of common meanings of the corresponding terms to the relations thereof.

Article 1126. Law Applicable to Contract on Creation of Legal Person With Foreign Participation

To the contract on creation of the legal person with foreign participation the law of the country shall be applied, where this legal person is established.

Article 1127. Domain of Applicable Law

  • The law, applicable to the contract by virtue of provisions of this paragraph, shall cover, in particular:

    • interpretation of contract;

    • rights and duties of the parties;

    • performance of contract;

    • consequences of failure to perform or improper performance of the contract;

    • termination of contract;

    • consequences of nullity or invalidity of the contract;

    • p. 2965cession of demand and transfer of debts in connection with the contract.

  • Concerning the ways and procedure of performance, and the measures which shall be taken in the instance of improper performance, in addition to the applied law, the law of the country in which the performance takes place shall also be taken in consideration.

§ 6. Noncontractual Obligations

Article 1128. Obligations From Unilateral Actions

The law of the place of conclusion of the transaction shall be applied to the transactions from unilateral actions (public promise of reward, actions in another’s interest without commission etc.). The place of conclusion of the transaction shall be determined in accordance with the law of the Republics of Belarus.

Article 1129. Obligations Arising as a Consequence of Causing Harm

  • The rights and duties on the obligations, arising as a consequence of causing harm, shall be determined in accordance with the law of the country, where the actions or other circumstances, served as the reason for demand for compensation of harm, have taken place.

  • The rights and duties on the obligations, arising as a consequence of causing harm abroad, if the parties are the citizens or the legal persons of the same state, shall be determined in accordance with the law of this state.

  • The foreign law shall not be applied, if the action or another circumstance, serving the reason for demand to compensate harm, is not illegal, in accordance with the legislation of the Republic of Belarus.

Article 1130. Liability for Damage Caused to Consumer

To the demand of compensation of damage, which arose for the consumer in connection with the purchase of the goods or rendering of services, at the discretion of the consumer, the law of the country shall be applied, where:

  • the consumer’s place of residence is located;

  • the place of residence or place of location of the manufacturer or of the person which have rendered a service is located;

  • the consumer has purchased the goods, or the service was rendered to the consumer.

Article 1131. Unfounded Enrichment

  • To the obligations, appearing as the consequence of unfounded enrichment, the law of the country, where the enrichment has taken place, shall be applied.

  • If the unfounded enrichment appears as the consequence of disappearing of the ground, on which the property was purchased or saved, the applying law shall be determined in accordance with the law of the country, to which this ground was subordinated.

  • The concept of the unfounded enrichment shall be defined in accordance with the law of the Republics of Belarus.

§ 7. Intellectual Property

Article 1132. Rights to Intellectual Property

  • The law of the country, where protection of these rights is demanded, shall be applied to the rights to intellectual property.

  • The contracts, the subject of which are the rights to the intellectual property, shall be regulated by the law, determined by the provisions of this Section concerning contractual obligations.p. 2966

§ 8. Inheritance Law

Article 1133. Relations of Inheriting

The relations of inheriting shall be determined in accordance with the law of the country, where the testator had the last place of residence, insofar as otherwise is not provided for by Articles 1132 and 1135, unless the law of the country, the citizen of which was the testator, was chosen by the testator in the will.

Article 1134. Inheriting of Immovable Property and Property Subject to Registration

The inheriting of the immovable property shall be determined in accordance with the law of the country, where this property is located. Concerning the immovable property, which is registered in the Republic of Belarus, the inheriting shall be determined in accordance with the law of the Republics of Belarus.

Article 1135. Capacity of Persons to Compile and Cancel Will, Form of Will and of Act of Its Canceling

The capacity of person to compile and cancel the will, the form of will and the form of act of canceling the will shall be determined in accordance with the law of the country, where the testator had a place of residence at the time of drawing up the act, unless the law of the country, the citizen of which was the testator, was chosen by the testator in the will. However the will or its canceling may not be deemed to be invalid as the consequence of non-observance of the form, if the form meets the requirements of the law of the place of drawing up the act, or the requirements of the law of the Republic of Belarus.

© National Center of Legal Information of the Republic of Belarus (NCLI). The editors wish to thank the NCLI for the permission to reprint the translation.