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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Albania

Aida Gugu Bushati and Christa Jessel-Holst

I. Sources of private international law

1. Major legislation

Albanian private international law provisions are found in several legal acts. The principal source is Law No 10.428 of 2 June 2011 ‘On Private International Law’ ((Ligji Për Të Drejtën Ndërkombëtare Private), Official Journal No 82, of 17 June 2011, p 3319, henceforth PILA), which contains the choice-of-law rules as well as provisions on the jurisdiction of Albanian courts and other procedural provisions. The new Albanian PILA of 2011 has wrought far-reaching changes. The Albanian legislature was inspired by EU law and also looked to codifications in other European countries. Many matters have been regulated for the first time (eg voluntary representation (see art 19), which is modelled on the Hague Agency Convention (Hague Convention of 14 March 1978 on the law applicable to agency, Hague Conference of Private International Law (ed), Collection of Conventions (1951–2009) (Intersentia 2009) 268)). The scope of →party autonomy has been noticeably extended. The PILA contains comprehensive provisions on contractual and non-contractual obligations, and also introduces the closest connection principle. A new concept for Albania is that of habitual residence (→Domicile, habitual residence and establishment). Application of more favourable law with regard to the legal position of children has been introduced. The 2011 PILA solutions are at times inconsistent and fail to harmonize fully with pre-existing Albanian legislation.

The Albanian Civil Procedure Code (Law No 8.116 of 29 March 1996 ‘On the Civil Procedure Code’ (Kodi i Procedurës Civile i Republikës së Shqipërisë), as amended, Official Journal No 9 of 18 April 1996, p 343, henceforth CPC) regulates choice-of-court agreements (art 37), foreign litispendence (art 38), jurisdiction in relation to diplomatic and consular representations (art 39), service from abroad (arts 134–140), judicial assistance from foreign courts (art 219), application of foreign law (art 220), judicial assistance for foreign courts (arts 221 et seq), foreign-language documents (art 266), recognition of foreign judgments (arts 393–399) and titles of execution (arts 510 et seq). Provisions on →adoption with a foreign element are to be found in the Albanian Family Code (Law No 9.062 of 8 May 2003 ‘On the Family Code’ (Kodi i Familjes i Republikës së Shqipërisë), Official Journal No 49, of 20 June 2003, p 1907) (see arts 252, 254 and 257), as well as in the Albanian Law on Adoption Procedure (Law No 9.695 of 19 March 2007 ‘On the Adoption Procedure and the Albanian Committee for Adoptions’ (Për Procedurat e Birësimit dhe Komitetin Shqiptar të Birësimit) as amended, Official Journal No 36 of 4 April 2007, p 690 (arts 16, 17 and 27–31)).

2. International conventions

According to the Constitution of the Republic of Albania ((Kushtetuta e Republikës së Shqipërisë) of 28 November 1998, Official Journal No 28 of November 1998, p 1073), any ratified international agreement constitutes part of the Albanian internal legal system after publication in the Official Journal. The agreement is directly applicable, unless it is not self-executing and its application requires the adoption of a law. International agreements ratified by law have priority over domestic laws that are incompatible with them. Finally, the rules laid down by an international organization have priority over Albanian domestic law when the direct application of such rules is expressly contemplated in the agreement ratified by Albania for participation (see art 122 of the Constitution). The ‘Law on Private International Law’ provides that international agreements ratified by law take precedence over incompatible PILA provisions. Similarly, in accordance with the CPC, bilateral agreements on the recognition and enforcement of judgments enjoy priority over the national regime (see art 393 CPC).

Albania’s membership of the →Hague Conference on Private International Law dates from 4 June 2002. Since then, Albania has ratified or acceded to the following Hague Conventions: the Hague Civil Procedure Convention (Hague Convention of 1 March 1954 on civil procedure, 286 UNTS 265), the Hague Testamentary Dispositions Convention (Hague Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions, 510 UNTS 175), the Hague Legalisation Convention (Hague Convention of 5 October 1961 abolishing the requirement of legalisation for foreign public documents, 527 UNTS 189), the Hague Service Convention (Hague Convention of 15 p. 1November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters, 658 UNTS 163), the Hague Evidence Convention (Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters, 847 UNTS 241), the Hague Divorce and Separation Convention (Hague Convention of 1 June 1970 on the recognition of divorces and legal separations, 978 UNTS 399), the Hague Recognition and Enforcement Convention (Hague Convention of 1 February 1971 on the recognition and enforcement of foreign judgments in civil and commercial matters, 1144 UNTS 258), the Hague Maintenance Recognition and Enforcement Convention 1973 (Hague Convention of 2 October 1973 on the recognition and enforcement of decisions relating to maintenance obligations, 1021 UNTS 209), the Hague Maintenance Applicable Law Convention (Hague Convention of 2 October 1973 on the law applicable to maintenance obligations, 1056 UNTS 204), the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89), the Hague Access to Justice Convention (Hague Convention of 25 October 1980 on international access to justice, 1510 UNTS 375), the Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and cooperation in respect of inter-country adoption, 32 ILM 1134), the Hague Child Protection Convention (Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, 35 ILM 1391) and the Hague Maintenance Convention 2007 (Hague Convention of 23 November 2007 on the international recovery of child support and other forms of family maintenance, [2011] OJ L 192/51).

From the conventions concluded under UN auspices, Albania has ratified, among others, the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3) (→Arbitration, recognition of awards) and recently also the →CISG (United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods, 1489 UNTS 3).

Albania is a member of the Council of Europe and has ratified the European Foreign Law Convention (European Convention of 7 June 1968 on information on foreign law, 720 UNTS 147) as well as the European Agreement on the Transmission of Applications for Legal Aid (European Agreement of 27 January 1977 on the transmission of applications for legal aid, ETS No 92).

Albania is a contracting party to the 1961 European Arbitration Convention (European Convention of 21 April 1961 on international commercial arbitration, 484 UNTS 349). It has also ratified the ICSID Convention (Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 18 March 1965, 575 UNTS 159). It is not a member of the CIEC and has not signed any of its conventions (→CIEC/ICCS (International Commission on Civil Status).

Albania has also ratified a number of bilateral agreements on mutual legal assistance largely with countries of its region. At present the following bilateral agreements are in force: agreement with Greece ‘On legal assistance in civil and criminal matters’ (Law No 7760, dated 14 October 1993) Official Journal No 12 of 1993, p 787; agreement with the →Russian Federation ‘On legal assistance in the civil, criminal and family domain’ (Law No 8061, dated 8 February 1996) Official Journal No 2 of 1996, p 35; agreement with →Macedonia ‘On legal assistance in civil and criminal matters’ (Law No 8304, dated 12 March 1998) Official Journal No 7 of 1998, p 260; agreement with →Turkey ‘On mutual legal assistance in civil, criminal and commercial matters’ (Law No 8036, dated 22 November 1995) Official Journal No 25 of 1995, p 1105; agreement with →Romania ‘On mutual legal assistance in civil, criminal and family matters’ (Decree No 3250 dated 17 April 1961) Official Journal No 6 of 1962, p 125); agreement with →Hungary ‘On mutual legal assistance in civil, criminal and family matters’ (Decree No 3119 dated 6 June 1960) Official Journal No 3 of 1961, p 75; agreement with Republic of →Bulgaria ‘On legal assistance in civil matters’ (Law No 9348 dated 24 February 2005) Official Journal No 19 of 2005, p 706. These bilateral agreements regulate cross-border cooperation in civil, commercial and criminal matters, as well as the recognition and enforcement of court decisions in the respective countries.

3. Significance of EU private international law

A Stabilisation and Association Agreement was concluded with the EU in 2006 and p. 1entered into force in 2009 (European Council and Commission, ‘Council and Commission Decision of 26 February 2009 concerning the conclusion of the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part (2009/332/EC, Euratom)’ [2009] OJ L 107/165, henceforth SAA). In 2009 Albania also submitted a formal application for EU membership and has been a candidate for EU membership since 27 June 2014. The harmonization of domestic legislation with the EU acquis is considered a priority under the SAA and the EU accession process. Article 70 SAA requires Albania to approximate its legislation with the EU acquis, starting with internal market legislation. EU regulations in the field of private international law and international procedure law had a considerable impact on the 2011 reform of private international law, particularly regarding the law applicable to contractual and non-contractual obligations, which was modelled on the Rome I Regulation (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), [2008] OJ L 177/6) and the Rome II Regulation (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), [2007] OJ L 199/40; →Rome Convention and Rome I Regulation (contractual obligations); →Rome II Regulation (non-contractual obligations)).

4. Role of case-law

Case-law has traditionally played a modest role in the Albanian legal system. The sources of Albanian law are listed in the Albanian Constitution (art 116) and they include the Constitution itself, ratified international agreements, the laws and the normative acts of the Council of Ministers. This is valid for all fields of law, including private international law. While the Albanian Constitution does not explicitly list case-law as a source of law, certain provisions of the Albanian Constitution and other laws emphasize the role of jurisprudence, in particular that of international courts and Albanian higher courts, as a significant element for legal interpretation. Unifying decisions of the Albanian High Court consolidate or modify existing jurisprudence in a particular field of law (art 141(2) of the Constitution). Unifying decisions of the High Court are published in the Official Journal and are binding on lower courts when judging analogous cases. There is little Albanian court jurisprudence regarding private international law, and Albanian judges have only just begun to apply the PILA. At the same time, the contribution of Albanian judges will be indispensable for the clarification of certain PILA provisions.

5. Role of doctrinal writings

Doctrinal writing does not constitute a source of law in Albania. Moreover, it is insufficiently developed for certain areas of law, including private international law. In general, the Albanian legal system is quite new and has largely been drafted with the assistance of international experts. Albanian legal scholars have as yet had no opportunity to establish significant doctrinal writings, and there are only a few specialists in private international law, although a number of young scholars have recently begun to address private international law issues.

II. History and development of private international law

The history of Albanian private international law goes back to the Introductory Law to the Albanian Civil Code of 2 April 1928 (Ministra e Drejtësis (ed), Kodi Civil (Vlorё 1928); Emid Tedeschini (trans), Codice civile del Regno d`Albania (Scutari 1939)), which in arts 5–8 contained rudimentary →choice-of-law rules based on French and Italian models. After the Second World War, there were initially few individual provisions for regulating the applicable law, eg arts 80–86 Marriage Act 1948 (Law No 601 on marriage of 18 May 1948, Official Journal No 76 of 21 July 1948). The first comprehensive regulation of private international law was found in Law No 3.920 of 21 November 1964 ‘On the Enjoyment of Civil Rights by Foreigners and on the Application of Foreign Law’ (Mbi gëzimin e të drejtave civile nga të huajt dhe zbatimin e ligjit të huaj, Official Journal 1964 No 9, p 217). The main →connecting factor with regard to persons, family relations and →succession was the lex nationalis. Rights in movables and immovables were governed by the lex rei sitae. For contractual relations, the parties were free to choose the applicable law and absent such choice, the focus was on the characteristic performance. For →torts, the lex loci delicti applied. The law also p. 1regulated the international jurisdiction, with the defendant’s domicile (→Domicile, habitual residence and establishment) as the place of general jurisdiction. The 1964 law contained no rules on the recognition and enforcement of foreign judgments; instead, enforcement was regulated by Chapter V of the Civil Procedure Code of 1981 (Law No 6343 of 27 June 1981 on Civil Procedure Code of the People’s Socialist Republic of Albania, Official Journal 1981 No 4, p 214). Foreign court judgments were recognized and enforced in Albania under the condition of contractual →reciprocity (art 55(1) of the old CPC). Conditions for refusal of foreign judgment recognition were similar to those applied in the current legal system.

During the years of isolation under the communist regime, the scope of application of Albanian private international law was notably limited, but since the political transformation, its practical importance is steadily increasing.

III. Administration of private international law

1. Special courts

Judicial disputes involving private international law rules are normally dealt with by Albanian courts at all levels (District Court, Court of Appeals and High Court). There are no specialized courts in private international law issues. Courts of first and second instance are divided into special sections which deal with civil, commercial, family and criminal matters, while the High Court adjudicates cases in civil college, criminal college and administrative college as well as in joint college. Private international law disputes are adjudicated by civil section or college.

2. Application and enforcement of foreign law

Determination and application of foreign law (→Foreign law, application and ascertainment) are regulated in the overlapping and partially contradictory provisions of the PILA (arts 5 and 6) as well as the CPC (art 220). The relationship between these two sources appears problematic. On the one hand, the PILA is the more recent and modern regulation. On the other hand, in the hierarchy of norms, codes apparently rank in Albania ahead of simple laws such as the PILA. It would be difficult to qualify either the PILA or the CPC as lex specialis. In any case, in Albania the rule of jura novit curia applies since this is provided in both pieces of legislation.

According to art 5 PILA, the court determines on its own initiative the content of the applicable foreign law. Besides the instruments defined in international conventions (such as the European Foreign Law Convention or bilateral conventions) and information secured from the Ministry of Justice, experts or specialized institutions may also be consulted. The parties may also supply documents verified by the competent organs of the other state in connection with the required provisions of the foreign law. Where the content of the foreign law cannot be determined, the court applies Albanian law (art 5 PILA). Foreign law is interpreted and applied in accordance with the criteria for interpretation and application in the state of origin (art 6 PILA).

The CPC also requires courts to determine foreign law. However, in art 220 the focus is on foreign ‘legislation’ (as opposed to the law in its entirety) and the court is to apply the foreign legislation ‘to the letter’. If the court does not succeed and none of the parties has provided the applicable provisions in a form certified by the competent organs of the state of origin, then the court applies Albanian law.

IV. Basic principles of jurisdiction

International jurisdiction is regulated in the context of private international law, whereas for the recognition and enforcement of foreign judgments, the CPC applies. This concept stands in striking contrast not only to the European law of international civil procedure, which always regulates international jurisdiction and recognition in context, but also to the concept used by other national legislatures in Europe. Similarly, the stipulation of jurisdiction of the Albanian courts is regulated in a liberal way in the PILA, whereas the choice of a foreign forum is regulated in a highly restricted manner in the CPC.

Except when otherwise provided for, Albanian courts are competent if the defendant has their habitual residence in Albania (art 71 PILA). Albanian exclusive jurisdiction exists in cases concerning: (i) real rights in immovables located in Albania; (ii) the decisions of the organs of commercial companies when the company’s habitual residence is in Albania; (iii) the founding or winding-up of legal persons, or decisions of their organs when the legal person p. 1has its seat in Albania; (iv) the validity of registration in the registers of Albanian state organs or courts; (v) the validity of registration of intellectual property rights which have been made or applied for in Albania; (vi) the enforcement of executory titles in Albania (art 72 PILA).

Prorogation of jurisdiction in favour of the Albanian courts is permitted by art 73 PILA, which lays down certain requirements as to the form of the agreement. Albanian jurisdiction also exists if the defendant enters an appearance without contesting Albanian court jurisdiction. As regards the parties’ choice of a foreign forum, art 37 CPC establishes exceptionally high hurdles. This kind of choice is allowed only for disputes between foreigners, or between a foreigner and an Albanian citizen or legal person without domicile or residence in Albania. In addition, this possibility must be provided for in an international agreement signed by the Republic of Albania.

An already existing foreign lis pendens is generally disregarded in Albania. Therefore, in the event that proceedings have become pending earlier abroad, litigation before the Albanian court is neither terminated nor staid (art 38 CPC).

Cases of special jurisdiction are regulated in arts 74–81 PILA (for declaring the disappearance and death of a person, →marriage, relations between spouses, parents and children, paternity and maternity, →adoption, removal or restriction of capacity to act, guardianship and other cases).

V. Basic principles of choice of law

1. General provisions

If referral is made to the law of another state, the referral extends to the private international law of that state. If the law of another state refers back to Albanian law, the Albanian substantive provisions are applied. Where the foreign law refers to the law of a third state, the law of that third state is applied. However, referral is generally excluded for the following matters: (i) status of legal persons; (ii) choice of the applicable law; (iii) form of the legal act; (iv) maintenance; (v) contractual obligations; or (vi) non-contractual obligations (art 3 PILA). If referral is made to the law of a state with more than one territorial unit, each of which has its own legal system, then the law of that state will determine which legal system is applicable. Absent such rules, the closest connection principle is applied (art 4 PILA). The closest connection is determined by the court according to the circumstances of the case (art 12(2) PILA).

Albania has no general escape clause. However, special →escape clauses have been introduced with regard to the law applicable to →contractual obligations as well as to non-contractual obligations.

A foreign law is not applied where its application would lead to a result which is manifestly in violation of Albanian →public policy or which is manifestly incompatible with the fundamental principles of the Constitution and Albanian law. In such cases, another appropriate provision of the law of the foreign state is applied, failing which Albanian law is applied (art 7 PILA).

2. Obligations (contractual and non-contractual)

The PILA provisions on →choice of law for contractual obligations are drafted in line with the provisions of the Rome I Regulation. Albania’s PILA, like other similar acts on private international law, is based on the fundamental principle of →party autonomy. In the absence of a choice of law, art 46 PILA establishes a cascade system of connecting factors, as does art 4 Rome I Regulation. For certain types of contracts, the law expressly defines which party is considered as effecting the characteristic performance and submits the matter to the law of that party’s habitual residence. Contracts not having been specified in art 46(1) PILA will be regulated by the law of the country in which the party required to effect the characteristic performance of the contract has their habitual residence at the time of contract conclusion. Article 46(3) PILA provides for an →escape clause. As a last resort, the closest connection principle applies (art 46(4) PILA).

The Albanian PILA provisions on choice-of-law rules for non-contractual obligations mirror the solutions of the Rome II Regulation. Torts are governed by the law of the country in which the damage occurs, irrespective of the country where the event giving rise to the damage occurred and irrespective of the country or countries where the indirect consequences (such as financial consequences) of the harmful event occurred (art 56 PILA). In cases where the person alleged to be liable and the person who has suffered damage have their habitual residence in the same country, the law of that country p. 1will be applied (art 56(2) PILA). There is also a special escape clause in art 56(3) PILA. The chapter on non-contractual →damages also extends to →products liability, unfair competition (→Competition, unfair), infringement of intellectual property rights, environmental damage (→Environmental liability), →unjust enrichment, →negotiorum gestio and →culpa in contrahendo. There is no provision on industrial action.

In contrast to the Rome II Regulation, art 67 PILA regulates the law applicable to the violation of →personality rights. In such cases, the injured person has the right to choose the applicable law within certain limits.

3. Property rights

Article 36 PILA contains the general rules for the law applicable to real rights over immovable and movable properties. Following the tradition of the previous law, the new PILA uses the rei sitae as the general connecting factor. The acquisition, transfer, loss of ownership right and the possession and other real rights are regulated by the law of the state where the property is located (→Property and proprietary rights). Characterization of property as movable or immovable is also determined by the lex rei sitae.

For movables, art 38 PILA regulates the (simple) conflit mobile, that is, if an item to which property interests attach enters another country, these interests cannot be exercised in contradiction to the legal order of that country. The title of the provision (‘acquired rights’) indicates that in principle, real rights in movables which have been validly created abroad continue to exist where the item is subsequently moved to Albania. The particular issue of how to treat the foreign fiduciary transfer of ownership has not yet been raised in Albanian court practice. Albanian law makes no provision for the fiduciary transfer of ownership and has instead introduced the legal institution of non-possessory pledge. Where fiduciary ownership has been transferred, for example, in →Germany and the item is then moved to the Republic of Albania, perpetuation of the fiduciary ownership could be considered contradictory to (in conflict with) Albanian numerous clausus of real rights.

Article 39 PILA provides that real rights over objects in transit (res in transitu) are governed by the law of the state of destination, while rights over means of transport (airplanes, ships, etc) which are registered in a public register are governed by the law of the state of registration (art 41 PILA). Rights over registered and negotiable securities are also governed by the law of the state of registration. There is a special rule for the protection of the cultural heritage in art 40 PILA. The claim for return of an illegally exported object which belongs to the cultural heritage of a country is governed by the law of the country from which the object was removed in force at the time of the removal. The country from which the object was removed may instead choose the law of the country in which the object is situated at the time that the claim for return is put forward.

4. Intellectual property

The PILA for the first time regulates rights over intellectual property. In accordance with the →territoriality principle, the existence, validity, scope, ownership, transferability, duration and infringement of copyright and other unregistered intellectual rights are subject to the law of the state for which protection is sought, whereas registered industrial rights are governed by the law of the state that has granted or registered the right (art 42 PILA). For intellectual property rights created during employment, the law regulating the employment contract applies (art 43 PILA; →Employment contracts, applicable law). For contracts on intellectual property rights, art 44 PILA refers to Chapter VII on contracts. Although the matter is already covered by the general rules on intellectual property, art 65 PILA (modelled on art 8 Rome II Regulation) contains a separate regulation for the infringement of intellectual property rights. The applicable law is the law of the country for which protection is sought and party autonomy is expressly excluded.

4. Family matters

Prior to the comprehensive reform of private international law of 2011, Albanian private international law did not use habitual residence as a →connecting factor. De lege lata, provisions in the field of family law still predominantly refer to the lex nationalis, although there are also cases of referral to habitual residence, for example, with regard to maintenance.

Where the law refers to the law of the country of which a person is a national, for persons p. 1of dual or multiple →nationality, the Albanian citizenship prevails. If the person has two or more foreign nationalities, the law of the country is applied where the person has their habitual residence. If the person’s habitual residence is not located in any of the states of which they are a national, the person is considered a national of the state of closest connection (art 8 PILA). If a person is stateless or their nationality cannot be identified, the law of the state of that person’s habitual residence or, absent such a law, the law of the state of closest connection to the person applies (art 9 PILA).

For the habitual residence of natural persons, art 12(1) PILA has introduced a legal definition similar to that used in other modern national codifications, such as →Belgium, →Bulgaria, →Macedonia, →Montenegro and →Romania (→Domicile, habitual residence and establishment). Here, habitual residence means the country where a natural person predominantly stays as the centre of their life circumstances, even absent registration and independent of a permit or authorization to stay. In order to determine this country, regard is had to the circumstances of a personal or professional nature that show durable connections with that country or indicate the intention to create such connections.

The conditions for conclusion of →marriage are exceptionally complex. In principle, they are subject to the lex nationalis of each future spouse at the time of conclusion of the marriage. For conclusion of marriage in the territory of the Republic of Albania, foreign or stateless persons must in addition (cumulatively) fulfil the fundamental preconditions provided for in the Albanian Family Code. If one of the spouses is an Albanian national or has their habitual residence in Albania and a foreign law would be applicable for the conclusion of marriage in accordance with the general principle as stated above, and if any of the conditions for the conclusion of marriage under that law is missing, then the marriage may be entered into according to Albanian law (art 21(1)–(3) PILA). According to art 21(4) PILA, a marriage concluded in compliance with the conditions of the lex nationalis of each spouse (art 21(1) PILA) may still not be recognized in Albania unless the Albanian law conditions for conclusion of marriage are fulfilled.

The form of conclusion of marriage is governed by the lex loci actus. A marriage between two persons, neither of whom is an Albanian national, may be celebrated before a diplomatic or consular representation of a foreign state in accordance with the law of that state (art 22(1) and (2) PILA). If the form of marriage is valid under the lex loci actus, it is also considered valid in Albania (art 22(3) PILA).

The general (‘personal’) effects of the marriage are governed by the law of the country of shared nationality of the spouses. Failing that, the law of the country in which both spouses have their joint residence is applicable and, also failing that, the law of the country with which the spouses are most closely connected (art 23 PILA). The →matrimonial property regime is governed by the law applicable to the general effects of the marriage. A change of the property regime has no effect on rights previously acquired by the spouses (art 24(1) PILA).

Recently, spouses have become entitled to choose their matrimonial property regime. However, the choice is restricted to the law of the state: (i) of which one of the spouses is a national; (ii) in which one spouse has habitual residence; or (iii) in which the real property is located. The agreement is to be made in notarial form or in an equivalent instrument certified by a public body. If on the strength of an agreement the matrimonial regime is governed by the law of another country, then third persons acting in good faith enjoy protection in accordance with art 24(3) PILA.

Divorce is governed by the shared lex nationalis of the spouses at the time of submission of the lawsuit. Failing that, the law of the state applies in which both spouses have their habitual residence (or had their last habitual residence). If a divorce cannot be granted pursuant to the above, the divorce is governed by Albanian law where the spouse requesting the divorce is an Albanian national or was one when the marriage was concluded (art 25 PILA; →Divorce and personal separation).

Maintenance obligations are in principle governed by the law of the state of the creditor’s habitual residence. If the entitled person and the debtor have the same nationality, and the debtor has their habitual residence in the state in question, the maintenance is subject to the common lex nationalis. If the entitled person cannot obtain maintenance under the conditions mentioned above, Albanian law is applied. If a divorced is decreed or recognized in the Republic of Albania, the law applied to the divorce is determinant for the obligation to provide maintenance between the spouses (art 26 PILA; for the scope of application, see art 27 PILA).

p. 1A child’s descent and challenges to its descent are governed by the child’s lex nationalis at the time of birth. However, in the child’s best interest, two alternative connecting factors may be applied, namely: (i) the child’s habitual residence at the time of submission of the request; or (ii) the law applicable to the personal relations between the parents at the time of the child’s birth (art 28 PILA). For parent–child relations, art 29 refers to the child’s habitual residence or, if it is in the child’s best interest, the child’s lex nationalis.

Adoption is regulated by a combination of the Family Code and the PILA. Article 257(1) Family Code submits the conditions and effects of adoptions effected in Albania to Albanian law, whereby it may be expected that this will be interpreted as a referral to Albanian substantive provisions. The scope of application of art 30 PILA is thus reduced to adoptions performed abroad (see art 30(3) PILA), whereby in such a case the conditions for adoption and the very performance of the adoption (as well as the consequences of the adoption) are governed by the lex nationalis of the adopters at the time of the adoption. Where the adopters have different nationalities, the law of their common habitual residence applies (arts 30(1) and (2), 31 PILA). Independently of the above provisions, the law applicable to adoption is also dealt with in art 16 of the Law ‘On the Adoption Procedure and the Albanian Committee for Adoption’ (above I.1), which stipulates as follows: (i) foreign children in a de facto state of neglect are subject to Albanian law; (ii) Albanian nationals intending to adopt a child of foreign nationality must fulfil the conditions of the Albanian Family Code and of the Law on the ‘Adoption Procedure and the Albanian Committee for Adoption’, as well as of the law of the child’s domicile; and (iii) Albanian nationals with double nationality and permanent domicile abroad must for the adoption of an Albanian child fulfil the legal conditions for adoption of their state of domicile. For the recognition of foreign adoptions, see art 31 of the Law on the ‘Adoption Procedure and the Albanian Committee for Adoption’, under which, on the application of Albanian nationals, an adoption performed abroad also has legal effects in the Republic of Albania on condition that the criteria of art 4 Hague Adoption Convention as well as the principles of Albanian law are observed.

Guardianship is governed by art 32 PILA. In principle, the lex nationalis of the ward applies. Foreign citizens with habitual residence in Albania, as well as property of a foreign citizen located in Albania, may be placed under temporary guardianship in accordance with Albanian law, until the respective state takes the necessary measures.

5. Succession

Succession in movables is governed by the law of the state in which the deceased had their habitual residence at the time of death. For succession in immovable objects, the lex rei sitae applies (art 33(1) and (2) PILA). A person may choose the law of a particular state to govern their succession as a whole, provided by the time the choice is made or upon their death, the person was a citizen of that state or had habitual residence in that state. The choice of applicable law cannot result in an heir being deprived of the compulsory portion to which they would be entitled under the applicable law according to art 33(1) and (2) PILA (art 33(3) PILA). The choice-of-law rules applicable for the validity of the will also apply for modification or revocation of the will (art 33(4) and art 35(2) PILA). Testamentary capacity is governed by the law of the state of the testator’s citizenship at the moment of making, changing or revoking the will (art 34 PILA). For the validity of a will, the Hague Testamentary Dispositions Convention has priority over art 35 PILA (→Succession).

6. Corporations

Under art 15 PILA, the status and activities of legal persons are regulated by the law of the state in which they are registered. For associations and bodies without legal personality, the law of the state where they were founded applies (art 16 PILA). The habitual residence of legal persons or associations and bodies without legal personality is the place of the central administration. The habitual residence of a natural person acting in the course of their business activities is their principal place of business (art 17(1) and (2) PILA). Paragraphs (3) and (4) of art 17 PILA are modelled on art 19 Rome I Regulation and hence are relevant only for contractual obligations. There is no parallel provision to art 23(2) Rome II Regulation, so that for non-contractual obligations, there is a gap in Albanian law as regards the habitual residence of a branch, agency or other establishment.

p. 1Previous legislation has not been harmonized with the PILA. Law No 9901 of 14 April 2008 ‘On Entrepreneurs and Companies’ (Për Tregtarët dhe Shoqëritë Tregtare, Official Journal No 60 of 6 May 2008) provides in art 8 that a company whose head office is located in Albanian territory is subject to Law No 9901. ‘Head office’ is legally defined as the place where the major part of the company’s business is carried out. Thus, art 8 Law No 9901 is apparently based on the seat theory, whereas in the PILA, the foundation theory is applied. Law No 9723 of 3 May 2007 ‘On the National Registration Centre’ (Për Qendrën Kombëtare të Regjistrimit, Official Journal No 60 of 23 May 2007) provides that for natural persons, branches and representation offices of foreign →companies, simple partnerships as well as other subjects, which according to the law in force do not gain juridical personality by means of registration with the Commercial Register, such registration only has declarative effect.

VI. Recognition and enforcement of judgments

The recognition of foreign judgments in Albania does not depend on any →reciprocity requirement. Recognition of foreign court decisions will be denied if: (i) the courts of the state to which the foreign court belongs would lack jurisdiction according to Albanian law (‘mirror principle’); (ii) the defendant has not duly been served the statement of claim and the summons in such time as to allow them to mount a defence; (iii) an Albanian court has rendered a conflicting decision between the same parties on the same matter in dispute and on the same grounds; (iv) proceedings have become pending in Albania before the foreign court decision entered into force; (v) the decision has entered into force in contradiction to Albanian law; or (vi) the decision is incompatible with the essential principles of Albanian law (art 394 CPC). The decision of a foreign court which has been recognized in Albania is considered a title of execution (art 510(c) CPC).

VII. Arbitration

Arbitration is regulated by the CPC and international agreements to which Albania is party. The provisions of the CPC in Title IV provide detailed rules on internal arbitration, but no specific rules on international arbitration. The 2001 amendments to the CPC (by Law No 8812, dated 17 May 2001) abolished the previous provisions on international arbitration without creating new provisions. Instead, art 439 CPC stipulates that international arbitration is to be regulated by a special law. The work for drafting a special law on international arbitration has begun, but the draft law remains to be adopted.

Nevertheless, according to art 399 CPC, the Code provisions on recognition of foreign judgments also apply to the recognition of foreign arbitral awards (see arts 393–398 CPC). A foreign arbitral award which has been recognized in Albania is considered a title of execution (art 510(c) CPC).

Absent a specific law on international arbitration, this field is entirely governed by the provisions of international agreements. Albania is party to the New York Convention on the recognition and enforcement of foreign arbitral awards, as well as to the European Convention on international commercial Arbitration Convention (→Arbitration, recognition of awards).

Literature

  • Borislav T Blagojević, ‘Albania’, International Encyclopedia of Comparative Law, vol I (1973) A-7;

  • Mirela P Bogdani and Flutura Kola Tafaj, ‘Albania’, WorldArbitration Reporter (2nd edn, Release No 4-2012);

  • Aida Bushati (Gugu), ‘The Albanian Private International Law of 2011’ (2013/2014) 15 YbPIL 509;

  • Ervis Çela and Maks Qoku, ‘Contractual Obligations under the Private International Law in Albania’ (2014) 10 Academicus International Scientific Journal 180;

  • Claus Haebler, ‘Albanien. Anerkennung und Vollstreckung ausländischer Gerichtsentscheidungen’ [1981] WGO-MfOR 375;

  • Ardian Kalia, E drejta ndërkombëtare private (FLESH 2013);

  • Alqiviadh Lamani, ‘Jurisdiksioni i gjykatave shqiptare kundrejt të huajve’ (1969) 2 DP 18;

  • Ilda Mucmataj and Lorenc Danaj, ‘The Development of Private International Law in Albania’ (2014) 9 Academicus International Scientific Journal 222;

  • Michael Newcity (ed), Central & Eastern European Legal Materials (CEEL), Binder 1 (Looseleaf, inter alia English translation of the Constitution of the Republic of Albania, the Code of Civil Procedure and the Family Code of Albania);

  • Eniana Qarri, ‘Family Law Matters in a European Dimension – A Comparative Perspective between Brussels II bis Regulation and the New Albanian Act on p. 1Private International Law’ (2014) 9 Academicus International Scientific Journal 159;

  • Wolfgang Stoppel, ‘Albaniens neues Internationales Privatrecht. Übersetzung des Gesetzes über das Internationale Privatrecht mit einer Einführung’ (2012) 2 Jahrbuch für Ostrecht 357;

  • Wolfgang Stoppel, ‘Albanien’ in Murad Ferid and others (eds), Internationales Erbrecht (Looseleaf, 84th supplement, CH Beck 2001);

  • Wolfgang Stoppel, ‘Albanien’ in Alexander Bergmann, Murad Ferid and Dieter Henrich (eds), Internationales Ehe- und Kindschaftsrecht (Looseleaf, 195th supplement, Verlag für Standesamtswesen 2012);

  • Agim Tartari, ‘Disa çështje të së drejtës ndërkombëtare private lidhur me trashëgiminë’ (1972) 1 DP 22;

  • Agim Tartari, Trashëgimia në të drejtën ndërkombëtare private shqiptare (Albin 1994);

  • Agim Tartari, Kriteret e lidhjes në të drejtën ndërkombëtare private (Avokatia no 5, Journal of Albanian Bar Association 6 June 2014); Geilke, ‘Albania’ in Alexander Bergmann, Internationales Ehe- und Kindschaftsrecht I (Looseleaf, 46th supplement, Frankfurt 1972) Gesetz Nr. 3920 vom 21 November 1964 über den Genuß von Zivilrechten durch Ausländer und die Anwendung ausländischer Gesetze, German translation; ‘Gesetz Nr. 3920 vom 21. November 1964 über den Genuß von Zivilrechten durch Ausländer und die Anwendung ausländischer Gesetze’ (1965) 2 WGO-MfOR 77;

  • Oriola Uka and Michael Wietzorek, ‘Anerkennung einer deutschen Ehescheidung durch das Appellationsgericht Tirana’ [2011] IPRax 99.