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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Bulgaria

Vessela Stancheva-Mincheva and Yordanka Zidarova

I. Historical development: the process of codification of Bulgarian private international law

On 4 May 2005 the 39th National Assembly of Bulgaria adopted the Private International Law Code (henceforth PILA), which entered into force on 21 May 2005 (DV, No 42 of 17 May 2005). This act is considered to be the most important milestone in the reform of the Bulgarian private international law, creating a new system of this branch of law. The willingness and attempts to codify Bulgarian private international law date back to the 1900s, but it was only in 2005 that they could be realized. In 1905 the Ministry of Justice had created a draft private international law codification within the framework of a general draft law on the publication, interpretation and application of laws ((1906) XIV journal ‘Yuridicheski pregled’ 1, 68). In 1936 the Ministry of Justice again prepared a draft of an autonomous private international law codification through a law entitled the Law on Conflict of Laws Rules (see Georgi Genov, Mezhdunarodno chastno pravo (Universitetska pechatniza 1942) 558–65). While both the 1905 and 1936 drafts were influenced by the Italian private international law (→Italy), the second was also influenced by German (→Germany) and Polish (→Poland) private international law. Renewed attempts at codification were made several decades later. Opinions about the necessity of an autonomous codification were insisted upon and well-grounded in the doctrine. This departed from the general view at the time that a codification encompassing all Bulgarian civil law as well as private international law in one instrument was desirable and feasible. In 1979 the Ministry of Justice created a draft Civil Code (for the official edition, see Ministerstvo na pravosadieto, Proekt za Grazhdanski kodeks na Narodna republika Bulgaria (Sofia 1979); for private international law – Part six, pages 231–34). In p. 11985 a new version of the draft was prepared. Both drafts contained a separate chapter on private international law. The choice-of-law rules on family relations with an international element were codified in the Family Code of 1968 and, subsequently, in the Family Code of 1985 (DV, No 41 of 28 May 1985, repealed with the adoption of the new Family Code of 2009, DV, No 47 of 23 June 2009). The private international law of maritime commercial relations is codified in the Code on Commercial Shipping (DV, No 55 of 14 July 1970), adopted in 1970 with the title Code on Commercial Sea Faring. Separate norms or sets of norms for relations with an international element became part of other codes and statutes. For example, choice-of-law rules in respect of contractual relations, inspired by the Rome Convention (Rome Convention on the law applicable to contractual obligations (consolidated version), [1998] OJ C 27/34; →Rome Convention and Rome I Regulation (contractual obligations)), were initially included in the Commercial Act of 1991 (DV, No 48 of 18 June 1991) and, subsequently, in the Law on Obligations and Contracts (DV, No 275 of 22 November 1950). In the latter case the rules of the Convention were fully adopted. The Commercial Act also contains choice-of-law rules on insolvency (→Insolvency, applicable law), as well as on →bills of exchange, promissory notes and →cheques, based on the relevant international sources of private international law. Prior to the adoption of the PILA, matters relating to international jurisdiction, proceedings in international civil matters, and the recognition and enforcement of foreign judgments and other acts were part of civil procedure.

II. Reform: codification of 2005 – the PILA

1. The PILA: general characteristics

The PILA regulates the subject matter of private international law in a relatively all-encompassing manner by making provision for the main questions affecting a private law relationship with an international element. It provides rules as to the competent courts for dispute resolution, the applicable law, and the status of foreign judgments and other acts.

The PILA is fully harmonized and consistent with binding European requirements. It is influenced by modern European private international law laws such as the Italian law of 1995 and the Belgian code of 2004. A balance between foreseeability and flexibility has been achieved through a combination of express choice-of-law rules with a clearly fixed →choice-of-law rule and reference to the law of the state to which the legal relationship is most closely connected. In the field of →personal status and family relationships, the principle of nationality is combined with the criterion of habitual residence. →Party autonomy has been extended beyond traditional categories to new categories of relationships.

Article 1(2) PILA applies a broad concept to determine the scope of application of the code – it requires a private law relationship, connected through a personal or territorial connection to two or more states. Its content is broadly divided into provisions on international jurisdiction of the Bulgarian courts and other authorities and proceedings in international civil matters; common provisions on the applicable law; the legal status of subjects; the law applicable to the main categories of private law relationships with an international element, such as legal transactions, agency (→Agency and authority of agents; →Commercial agency, franchise and distribution contracts) and extinctive →prescription, property rights (→Property and proprietary rights) and intellectual property, family relationships, →succession and obligations; as well as the recognition and enforcement of foreign judgments and other acts. The regulation of matters such as qualification, →renvoi, special mandatory rules, the legal status of legal persons, rights in rem, succession relationships and non-contractual relationships is novel for Bulgarian private international law. Certain categories of relationships having special features, such as those in the field of shipping, aviation, international railway and road transport, securities, obligations deriving from →bills of exchange, promissory notes and →cheques, insolvency and international arbitration, remain outside the scope and content of the PILA. The choice-of-law rules that form part of other laws continue to govern these matters and thus complement the PILA.

2. Closest connection and other principles

The PILA conforms to the principle proclaimed by Savigny (→Savigny, Friedrich Carl von) that the application of the →lex fori or of a given foreign law should derive from an abstract criterion. The closest connection principle plays a decisive role in this regard (art 2(1) PILA). p. 1Fixed formulas, introduced in a number of areas, represent the legislator’s understanding as to the closest connection between the legal relationship in question and the applicable law. A ‘catch-all’ closest connection test applies if the applicable law cannot be determined on the basis of the established rules using a fixed →connecting factor. Bilateral choice-of-law rules replace the former unilateral approach, particularly in the regulation of family relationships. The substantive law method of using special, direct norms to govern a legal relationship with an international element in accordance with its specific features complements the choice-of-law rules, in particular, through the introduction of certain principles and definitions. For example, according to art 88(2) PILA, upon determination of the amount of maintenance, account must be taken of the financial capabilities of the maintenance debtor and of the actual needs of the maintenance creditor, even where the applicable foreign law provides otherwise. The PILA enhanced the principle of application of the more favourable law to a given subject, primarily in the field of the establishment of parenthood and the relationships between parents and children. The scope of application of the favor validitatis principle is broadened to encompass matters such as the form of a →marriage, an affiliation (legitimation; →Kinship and legitimation) and a will.

III. Sources of Bulgarian private international law

The PILA has been greatly influenced by private international law regulations at the international and supranational European levels. According to art 5(4) of the Constitution of Bulgaria (DV, No 56 of 13 July 1991), international treaties shall take priority over any conflicting standards of domestic legislation. According to art 3(1) PILA, ‘the provisions of this code shall not affect the regulation of relationships at private law with an international element as established in an international treaty, in another international instrument in force for Bulgaria, or in another law’. Hence, art 3(1) declares the supremacy of the norms of international conventions and other international instruments over the PILA, and highlights the importance of certain special laws. Bilateral treaties also play a significant role as a source of Bulgarian private international law. Of note are the treaties on legal assistance (TLA) and consular conventions. The TLA concluded by Bulgaria contain provisions on legal assistance between the judicial authorities of the contracting parties (drafting, sending and →service of documents, implementing expertise, questioning of parties and other participants in legal proceedings), but also choice-of-law rules on specific categories of relationships (for example, arts 17–39 TLA Cuba (Treaty on legal assistance on civil, family and penal law matters between the Peoples Republic of Bulgaria and Cuba, DV No 85 of 31 October 1980), arts 17–34 TLA USSR (Treaty on legal assistance on civil, family and penal law matters between the Peoples Republic of Bulgaria and the USSR, DV No 12 of 10 February 1976), the latter being applicable in the relationship with the Russian Federation, and others), as well as rules on the recognition and enforcement of judgments and arbitral awards (for example, art 18 and the following TLA Spain (Treaty on mutual legal assistance on civil law matters between the Republic of Bulgaria and the Kingdom of Spain, DV No 10 of 1995) in the field of arbitral awards, and others). The consular conventions contain provisions that empower the consuls of Bulgaria in the contracting states with certain powers in the field of civil status and with certain notarial functions. Bulgaria is a party to a number of multilateral international treaties, created and executed in different formats – UN (for example, CISG (United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods, 1489 UNTS 3), the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3)), the Council of Europe (the European Foreign Law Convention (European Convention of 7 June 1968 on information on foreign law, 720 UNTS 147)), the →Hague Conference on Private International Law and others. The conventions created by the Hague Conference on Private International Law as well as the →Lugano Convention (Lugano Convention of 30 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2007] OJ L 339/3) are of particular relevance. Bulgaria has been a member of the Hague Conference on Private International Law since 1999, but it is a party to only seven conventions: the Hague Legalisation Convention (Hague Convention of 5 October 1961 abolishing the requirement of legalisation for foreign public documents, p. 1527 UNTS 145); the Hague Service Convention (Hague Convention of 15 November 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 Access to Justice Convention (Hague Convention of 25 October 1980 on international access to justice, 1510 UNTS 375); the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89); the Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and co-operation in respect of inter-country adoption, 32 ILM 1134); and 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). Given the exclusive ‘external competence’ as acquired by the EU in most of the areas of judicial cooperation in →civil and commercial matters, Bulgaria’s future participation in a number of conventions, including the Hague Conventions, is likely to be channelled primarily through the treaties executed by the EU. According to art 3(2) PILA, upon the application of an international treaty or of another international instrument, regard shall be had to the international character of the provisions thereof, to the qualification established in the said provisions, and to the need to achieve uniformity in the interpretation and application thereof.

Private international law in Bulgaria has been most affected by the supranational acts of European law. Following the Treaty of Amsterdam (Treaty of Amsterdam amending the Treaty on the European Union, the Treaties establishing the European Communities and certain related acts (consolidated version), [1997] OJ C 340/1), the EU adopted a number of regulations in the field of international jurisdiction, applicable law and recognition and enforcement of foreign judgments, and other acts. These regulations are directly applicable in Bulgaria and prevail over the norms of the PILA. The directives each bind the country in a specific manner. Furthermore, the EU regulations usually supersede conventions and bilateral treaties executed between the EU Member States, for example, in the field of international jurisdiction and recognition and enforcement, and may take precedence over multilateral conventions.

As a result of the existence of a uniform private international law at the EU level and the participation of Bulgaria in international conventions, a large part of the choice-of-law rules of the PILA are superseded by instruments of the EU, whereas others have retained limited application. By way of example, non-contractual relations are subject to 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), whereas the PILA remains valid only for infringements of rights relating to personality.

International usages as a source of the Bulgarian private international law may play a role in the sphere of commercial relationships. Authorities applying the law use international usages for the purpose of interpreting the will of the parties to the contract, as well as in cases where the parties have tacitly or expressly agreed.

Court practice plays an important role in the field of private international law, although in Bulgaria it is not a source of law. Prior to the adoption of the PILA, certain conclusions were derived from, and lacunae filled by, court practice, for example, with respect to renvoi, succession, tacit choice of applicable law, etc. Moreover, the practice of the CJEU (→Court of Justice of the European Union) exercises a major influence over the contemporary private international law. The process of drafting new private international law regulations is influenced by both court practice and doctrine. Their role in the establishment of the content, interpretation and application of foreign law (→Foreign law, application and ascertainment) is expressly recognized.

IV. Basic principles of jurisdiction

1. General structure

The Bulgarian courts and other authorities are granted general jurisdiction when the parties have submitted expressly or tacitly to the Bulgarian courts and when the defendant has an habitual residence, statutory seat or principal place of business in Bulgaria, or the claimant or applicant is a Bulgarian national or a legal person registered in Bulgaria (arts 23(2), 24 and 4(1) PILA). This latter jurisdictional p. 1ground shall be applied only if the defendant is not domiciled in a Member State of the Brussels I Regulation (recast) (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1; →Brussels I (Convention and Regulation)) and/or the Lugano Convention. Actions against a legal person, where the dispute has arisen out of direct relationships with a branch of the said person, may be brought before the Bulgarian courts if the branch is registered in Bulgaria (art 4(2) PILA). In addition to the general jurisdiction, a number of special jurisdiction grounds are found in arts 5–19 PILA.

The international jurisdiction of the Bulgarian courts and other authorities shall be exclusive only where this is expressly provided for (art 22 PILA). The exclusive jurisdictional rules refer more or less to the same matters as art 24 of the Brussels I Regulation (recast), which expressly provides that the parties’ domicile (→Domicile, habitual residence and establishment) is irrelevant. These matters concern rights in rem in →immovable property; the validity of the constitution, nullity or dissolution of →companies or other legal persons or the validity of acts of their bodies; the validity of entries in public registers, particularly where the legal person is registered in Bulgaria; the registration or validity of industrial property rights; and the enforcement of judgments. Article 22 PILA is only applicable to the extent that it may cover matters excluded from the scope of the Brussels I Regulation (recast).

The Bulgarian courts shall have jurisdiction to secure a claim for the examination of which they do not have international jurisdiction if the subject matter of the conservatory attachment is situated in Bulgaria and the foreign court judgment is entitled to be recognized and enforced in Bulgaria (art 25 PILA).

The main body of applicable international jurisdiction rules on insolvency matters (→Insolvency, jurisdiction and vis attractiva) is contained in the EU Insolvency Regulation (Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, [2000] OJ L 160/1). Certain jurisdictional aspects of cross-border insolvency are addressed in relevant industry and/or sector-specific national laws which implement EU directives.

2. Personal rights

The Bulgarian courts and other authorities are granted special jurisdiction: (i) over matters relating to a change or protection of a name, where the person is a Bulgarian national or is habitually resident in Bulgaria; (ii) over matters relating to the limitation or deprivation of Bulgarian nationals of the capacity to enter into legal relationships; (iii) to establish and terminate guardianship or curatorship, where the person placed under guardianship or curatorship is a Bulgarian national or is habitually resident in Bulgaria; and (iv) to declare the disappearance or death of a person who is a Bulgarian national or who has a known habitual residence in Bulgaria (art 5 PILA).

3. Family relations

Matrimonial matters shall be cognizable in the Bulgarian courts, if one of the spouses is a Bulgarian national or is habitually resident in Bulgaria (art 7 PILA). Under the same terms, the Bulgarian courts shall have jurisdiction over matters relating to personal and proprietary relationships between spouses (art 8). The jurisdictional rules of the PILA for legal actions in matrimonial matters (divorce and annulment claims) are superseded by the provisions of the →Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, [2003] OJ L 338/1), and remain applicable only for cases outside the scope of the latter. The Bulgarian courts shall have special jurisdiction over proceedings for establishing and contesting parentage where the child or the parent, who is a party, is a Bulgarian national or is habitually resident in Bulgaria (art 9(1) PILA). Under these preconditions, this jurisdiction shall also apply to matters relating to personal and proprietary relationships between parents and children (art 9(2)). However, according to art 14 Brussels IIa Regulation, reference to national jurisdictional rules in matters of parental responsibility shall only be possible where no court of a Member State has jurisdiction pursuant to the Brussels IIa Regulation. The international jurisdiction of the Bulgarian courts in relations with non-Member States of the EU that are parties to the Hague Child Protection Convention shall be determined in accordance p. 1with the provisions of that Convention. In matters relating to maintenance, the jurisdictional rules provided for in the EU Maintenance Regulation (Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, [2009] OJ L 7/1) shall be applied directly. The Bulgarian courts and other authorities shall have special jurisdiction over matters relating to the admission, annulment or revocation of →adoption where the adopter, the adoptee or one of the parents of the adoptee is a Bulgarian national or is habitually resident in Bulgaria (art 10(1) PILA). Article 10(2) grants special jurisdiction to the Bulgarian courts over matters relating to proprietary relationships between the adopter and the adoptee, where the adopter or the adoptee is a Bulgarian national or is habitually resident in Bulgaria.

4. Property rights and intellectual property

The exclusive jurisdiction of Bulgarian courts in proceedings in respect of rights in rem in →immovable property or tenancies of immovable property is to be determined under art 24(1) Brussels I Regulation (recast) regardless of the domicile of the parties. The Bulgarian courts shall have special jurisdiction over actions on rights in rem in movable property if the property is located in Bulgaria (art 12(2) PILA). This provision is only applicable if the defendant is not domiciled in a Member State of the Brussels I Regulation (recast) and/or the Lugano Convention, despite the fact that the provision provides for a broader jurisdiction of the Bulgarian courts than the Brussels I Regulation (recast) and/or the Lugano Convention. The Bulgarian courts shall have jurisdiction over actions on copyrights and neighbouring rights where protection is sought within the territory of Bulgaria (art 13(1)). The exclusive jurisdiction of Bulgarian courts in proceedings concerned with the registration or validity of industrial property rights, registered in Bulgaria, is to be determined under art 24(4) Brussels I Regulation (recast). Certain other international and EU instruments should also be taken into account.

5. Obligations

The Bulgarian courts shall have special jurisdiction over contractual matters where the →place of performance of the obligation is within Bulgaria or where the defendant has a principal place of business within Bulgaria (art 15 PILA). This special jurisdiction is only applicable to matters outside the scope of the Brussels I Regulation (recast) and/or the →Lugano Convention, ie if the defendant is not domiciled in a Member State. Moreover, the jurisdictional rules on consumer and labour disputes in the Brussels I Regulation (recast) apply regardless of the defendant’s domicile.

The Bulgarian courts shall have special jurisdiction over actions on damage sustained as a result of a tort or delict where the harmful event was committed in Bulgaria or where the damage or part thereof occurred in Bulgaria (art 18 (1) PILA). In these circumstances →direct action taken by the party who has suffered the damage against the insurer of the person claimed to be liable shall also be cognizable by the Bulgarian courts (art 18(2)). Again, these rules only apply if the defendant is not domiciled in a Member State of the Brussels I Regulation (recast) and/or the Lugano Convention.

6. Succession

The Bulgarian courts shall have special jurisdiction over actions in matters of →succession, annulment or reduction of a will, partition of succession, annulment of voluntary partition and other proceedings related to succession where the deceased at the time of his or her death was habitually resident in Bulgaria or was then a Bulgarian national, as well as where part of the estate is situated in Bulgaria (art 14 PILA). As of 17 August 2015, these national rules are derogated from by Chapter II of the EU Succession Regulation (Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, [2012] OJ L 201/107; →Rome IV Regulation (succession)).

V. Applicable law

1. General provisions: administration of private international law

Article 39 PILA enshrines the concept of qualification lege fori. Where a specific legal institution or legal concept is unknown to Bulgarian p. 1law and cannot be defined through interpretation pursuant to Bulgarian law, a qualification lege causae should be taken into consideration. Moreover, account must be taken of the international element in the relationships which are being settled and of the specifics of private international law (‘autonomous qualification’). →renvoi shall be accepted in principle for both remission to Bulgarian law and transmission to the law of a third state (art 40(1)). It shall be inadmissible to matters regarding the legal status of legal persons and unincorporated bodies, formal requirements for legal transactions (→Formal requirements and validity), choice of applicable law, maintenance, contractual relationships and non-contractual relationships (art 40(2)). In the cases where referral is admitted, Bulgarian substantive law or the substantive law of the third state shall apply (art 40(3)). When the state whose law has been determined as applicable has several territorial units with separate legal systems or comprises several legal systems applicable to different categories of persons, the law of that state shall determine which of the said systems shall apply (art 41(1) and (3) respectively). Where a state has several territorial units, each having its own legal regulation of contractual and non-contractual relationships, each territorial unit shall be treated as a separate state upon determination of the applicable law for these types of relationships (art 41(2)). In the absence of criteria for determination of the applicable legal system, the closest connection test shall apply (art 41(4)). A subsequent change in the circumstances from which the applicable law has been determined shall not have retroactive effect (art 42). The PILA does not recognize the concept of evasion of the law. A court or other authority is obliged to apply its choice-of-law rule whenever it has established, based on the circumstances of the case, that there is a relationship with an international element. A court shall of its own motion ex officio establish the content of foreign law (art 43(1)). It may resort to the methods provided for in international treaties, request information from the Ministry of Justice or from another body, and request opinions from experts and specialized institutes. The parties may also assist in the process (art 43(2)). Upon the choice of the applicable law, parties may be obligated by the court to provide assistance (art 43(3)). A dismissal of the claim merely on the ground that the foreign law has not been sufficiently proved is not acceptable. The foreign law shall be interpreted and applied as it is interpreted and applied in the state which created the said law (art 44(1)). Non-application of a foreign law, as well as misinterpretation and misapplication, shall be a ground for appeal (art 44(2)). A provision of a foreign law shall not apply if the consequences of such application are manifestly incompatible with Bulgarian →public policy (ordre public) (art 45). As to the legal treatment of special mandatory provisions, art 46 PILA adopts the model of art 7 of the Rome Convention in its entirety.

There are no courts specialized in private international law matters. Such matters typically fall within the scope of the jurisdictional powers of courts dealing with civil law cases. The court system includes specialized commercial divisions dealing with business-related cases. In addition to courts, private international law matters are usually addressed by certain authorities performing non-judicial functions, such as officials in municipalities (mayors) and commercial and property registries, as well as public notaries.

2. Physical persons

The national law of a person (lex patriae) shall be the law of the state of his or her →nationality and, for a person holding dual or multiple nationality of which one is Bulgarian, Bulgarian law (art 48(1) and (2) PILA). If a person is a national of two or more foreign states, the law of the state of his or her habitual residence (→Domicile, habitual residence and establishment) shall be considered as lex patriae. Where the person does not have a habitual residence in any state of which he or she is a national, the closest connection test shall apply (art 48(3)). ‘Habitual residence of a natural person’ shall denote the place where the said person has settled predominantly to live. Habitual residence is determined without regard to any requirement for the registration or authorization of the residence or settlement. In determining the place of habitual residence, special regard must be had to circumstances of a personal or professional nature arising from sustained connections between the person and the said place or from the intention of the said person to establish such connections (art 48(7)). The capacity of a person to have rights (→Capacity and emancipation) and duties shall be governed by the national law (art 49(1)). Foreign nationals and stateless persons shall have in Bulgaria the same rights as p. 1Bulgarian nationals (art 49(2)). The capacity of a person to enter into legal relationships shall be governed by their national law. Where the law applicable to a specific relationship establishes special conditions regarding the capacity to have rights and duties, the said law shall apply (art 50(1)). Article 50(2), in similar terms to art 11 of the Rome Convention, provides that a party to a contract, who has capacity under the law of the state in which both parties are present, cannot invoke the law of another state according to which it has no capacity unless the counterparty was aware or ought to have been aware of the incapacity. Article 50(2) does not apply to any transactions in family and succession relationships, or any transactions regarding rights in rem in immovable property situated in a state other than the state of the place at which the transaction was concluded. The name of a person and its change shall be governed by the lex patriae (art 53(1)). The effect on the name of a person of a change of nationality or habitual residence shall be determined by the law of the state whose nationality the person has acquired or the law of the state in which the person has established a new habitual residence, respectively (art 53(2)). The protection of the name shall be governed by the law which is applicable to the obligations arising out of a tort or delict (art 53(3)). The terms and consequences of limitation or deprivation of a person’s capacity to enter into legal relationships shall be governed by his or her national law. However, where the person is habitually resident within the territory of Bulgaria, the court may apply Bulgarian law to these matters (art 54(1)).

3. Corporations, unincorporated entities and the state

Legal persons shall be governed by the lex loci registrationis (art 56(1) PILA). Where no registration is required or where the legal person is registered in several states, the law of the state in which the statutory seat is situated shall apply (art 56(2)). If in the latter case the situs of the statutory seat is different from the situs of the actual place of management of the legal person, the law of the state where the actual place of management is situated shall apply (art 56(3)). The branch of a legal person shall be governed by the law of the state in which the said branch is registered (art 56(4)). The transfer of the central administration to another state and the transformation of legal persons with central administration in different states shall take effect solely if carried out in accordance with the law of the said states (art 59). According to Bulgarian legal literature, the national norms will be inapplicable insofar as their application could endanger in any way whatsoever the freedom of establishment of legal persons between the Member States of the EU as enshrined in the TFEU and the relevant case-law of the CJEU (see Todor Todorov, Mezhdunarodno chastno pravo Evropeyskiyat sayuz i Republika Balgaria (2. izdanie, Sibi 2009) 170–71; →Court of Justice of the European Union; →Freedom of establishment/persons (European Union) and private international law). The recognition of legal persons having a relevant connection to the EU shall be settled in accordance with EU law and court practice. Consequently, the scope of application of arts 56–9 remains limited to cases outside the EU. Unincorporated entities shall be governed by the law of the state in which they are registered or instituted (art 57). Furthermore, the provisions of the code shall apply to relationships at private law with an international element, in which a state is a party, save as where otherwise established by statute (art 60).

4. Form of transactions, agency and extinctive prescription

The formal requirements for legal transactions shall be governed by the lex causae (→Formal requirements and validity). However, compliance with the formal requirements as established by the lex loci actus shall suffice (art 61 PILA). The PILA provides for special choice-of-law rules regarding the authority of an agent, specifically in the relationship between a principal and a third party. In this regard the PILA virtually reproduces 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). Extinctive →prescription shall be assessed under the law governing the relevant relationship (art 63 PILA).

5. Property rights and intellectual property

Possession, ownership and other rights in rem in movable and →immovable property shall be governed by the lex loci rei sitae (art 64(1) PILA). It shall also apply to the evaluation as p. 1to whether a corporeal object is movable or immovable, as well as the type of rights in rem (art 64(2)). The acquisition and termination of proprietary and possessory rights shall be governed by the law of the state in which the corporeal object is situated during the performance of the act or occurrence of the circumstance justifying the acquisition or termination (art 65(1)). Acquisitive prescription shall be governed by the law of the state in which the corporeal object was situated at the time the period of acquisitive prescription lapsed. The time of possession in another state shall be assimilated to the said period (art 65(2)). Upon change of the place of localization of a corporeal object, rights already acquired may not be exercised to the prejudice of the law of the state in which the object is newly situated (art 66). Rights in rem in corporeal objects in transit shall be governed by the law of the state of destination (art 67(1)), whereas such rights in objects for personal use carried by a passenger shall be governed by the law of the state where the passenger is habitually resident (art 67(2)). Rights in rem in means of transport shall be governed by: (i) the law of the →flag of the ship; (ii) the law of the state where the aircraft is registered; and (iii) the law of the state where the person operating the railway rolling stock and land motor vehicles has its place of business (art 68). The registration of legal transactions relating to rights in rem shall be governed by the lex rei sitae at the time of performance of the transaction (art 69). The latter norm is applicable both in the case of registration of a mortgage over immovable property and of a non-possessory pledge over movable property (→Property and proprietary rights). However, the registration of rights in rem in relation to means of transport governed by art 68 is addressed through special rules in various statutes, applying specifically to the various means of transport. Where a given corporeal object belonging to the cultural heritage of a specific state has been wrongfully removed from its territory, the request for return of the object shall be governed by the law of the said state, except where it has opted for application of the law of the state in which the object is situated at the time the request for return is made (art 70). Copyright and neighbouring rights shall be governed by the lex loci protectionis (art 71(1)). Regarding industrial property rights, the law that shall be applied is the law of the state in which a patent has been issued or registration has been effectuated, or in which an application for a patent or registration has been filed (art 71(2)). The law governing contracts of employment shall apply to determine the holder of intellectual property rights regarding items prepared within the scope of the employment relationship between employer and author (art 72; →Employment contracts, applicable law). Licensing agreements relating to intellectual property rights shall be governed by the lex obligationis (art 73).

6. Family matters

The formal requirements for →marriage shall be governed by the law of the state of celebration. If the marriage is celebrated by a competent diplomatic agent or consular official, the law of the sending state shall be applied (art 75(1) and (2) PILA, respectively). The substantive requirements for entry into marriage shall be governed for each of the future spouses by the law of the state of which the person was a national at the time of celebration of the marriage (art 76). Annulment of marriage shall be governed by the law which was applicable to the substantive requirements for entry into the marriage (art 78). Consequently, if any of the substantive requirements for entry into marriage has been breached, such breach may constitute a ground for annulment. The relationship in personam between spouses shall be governed by their common lex patriae. For spouses holding different nationalities, the law of the state in which they have a common habitual residence or, in the absence of such habitual residence, the law of the state with which both spouses are most closely connected shall apply (art 79(1) and (2), respectively). Interspousal proprietary relationships shall be governed by the law applicable to the relationships in personam. Spouses may select an applicable law to govern their property relationships if this is admissible under the objectively applicable law (art 79(3) and (4)). The choice-of-law rules of art 82 concerning divorce (→Divorce and personal separation) have been superseded since 21 June 2012 by the →Rome III Regulation (divorce) (Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [2010] OJ L 343/10) due to its universal scope of application.

Establishment of parentage (art 83 PILA) shall be governed by the law of the state whose →nationality the child acquired at the time p. 1of birth. However, the application of certain other laws shall be allowed where this is more favourable to the child (art 83(2)). The principle of application of the more favourable law provides for an adequate solution to the scenario where the lex patriae at the time of birth cannot be applied as the acquisition of nationality depends on the prior establishment of parenthood. Affiliation (legitimation; →Kinship and legitimation) shall be effective if it conforms to the national law of the affiliator or to either the national law of the child or the law of the state in which the latter has habitual residence at the time of affiliation (legitimation – art 83(4)). The conditions for →adoption shall be governed by the law of the state of which the adopter (or adopters) and the adoptee are nationals at the time of submission of the application for adoption (art 84(1)). Should the said persons hold different nationalities, the national law of each of the persons shall apply (art 84(2)). The consent of the Minister of Justice shall be required where the adopted child is habitually resident in Bulgaria, unless the adoptive parent is habitually resident in Bulgaria (art 84(3)). Where the adoptee is a Bulgarian national, the adopter, whether Bulgarian or a foreign national who is habitually resident in another state, must satisfy the conditions for adoption under the law of that state as well (art 84(4)). The effect of adoption shall be governed by the common national law of the adopter and the adoptee. If the adopter and the adoptee hold different nationalities, the law of the state in which they have a common habitual residence shall apply (art 84(5)). Annulment of adoption shall be governed by the law which was applicable to the conditions for the adoption (art 84(6)). The grounds for revocation of adoption, apart from annulment, shall be governed by the law applicable to the effects of adoption (art 84(7)). The relationship between parents and children shall be governed by the law of the state of their common habitual residence. In the absence of a common habitual residence, the relationship shall be governed by the law of the state where the child is habitually resident or by its national law, should this be more favourable to it (art 85(1) and (2), respectively). However, insofar as these questions are governed by the Hague Child Protection Convention, its provisions shall apply. Guardianship (→Guardianship, custody and parental responsibility) and curatorship shall be governed by the law of the state in which the person who is placed under guardianship or curatorship is habitually resident. The same law shall apply to the relationship between the person placed under guardianship or curatorship and the guardian or curator (art 86(1) and (2) PILA). The applicable →choice-of-law rules on the law governing →maintenance obligations are those established pursuant to the EU Maintenance Regulation. Given its supremacy and direct applicability, the choice-of-law rules in art 87 PILA are not applicable.

7. Succession

The PILA adopts the principle of division of →succession – succession to movable property shall be governed by the law of the state in which the deceased had a habitual residence upon death, whereas succession to immovable property shall be governed by the lex rei sitae (art 89(1) and (2) PILA). Unity of succession may be achieved through →party autonomy, but only in favour of the lex patriae of the decedent at the time of the choice of law and if the designation of the applicable law is expressed in the form of a testamentary disposition. The reserved share of the heirs determined under the respective objectively applicable law must remain unaffected by the chosen law. The capacity of a person to dispose of his or her property by means of a will shall be governed by the lex successionis (art 90(1)). A will shall be formally valid if it conforms to one of four alternatively designated legal orders. National choice-of-law provisions are replaced by the universally applicable rules of the EU Succession Regulation, which became effective on 17 August 2015.

8. Obligations

The provisions of the PILA on the applicable law to →contractual obligations reflect the rules of the Rome Convention in their entirety (arts 93–104 PILA). However, the norms of 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; →Rome Convention and Rome I Regulation (contractual obligations)) substituting the provisions of the Rome Convention shall prevail over the PILA due to their inherent direct application and universal character. As to non-contractual obligations, two pieces of legislation are relevant: the PILA (arts 105–16) and the Rome II Regulation. The latter has prevailed over the norms of the PILA as of p. 111 January 2009. After this date, the code has remained applicable only for non-contractual obligations, which are outside the scope of application of the Community instrument – for example, legal actions arising out of a violation of rights relating to the personality.

VI. Recognition and enforcement of judgments

According to the PILA (arts 117–24), foreign judgments shall be entitled to recognition and enforcement (→Recognition and enforcement of judgments (civil law)) where: (i) the foreign court or authority had jurisdiction according to the provisions of Bulgarian law provided, however, that such jurisdiction did not derive solely from the nationality of the plaintiff or the registration thereof in the state of the court seized; (ii) the defendant was served a copy of the statement of action, the parties were duly summoned and the fundamental principles of Bulgarian law related to the defence of the parties have not been prejudiced; (iii) no effective judgment has been given by a Bulgarian court based on the same facts, involving the same cause of action and between the same parties; (iv) no pending proceedings based on the same facts, involving the same cause of action and between the same parties, were brought before a Bulgarian court prior to the case being instituted in the foreign court; and (v) the recognition or enforcement is not contrary to Bulgarian public policy.

A foreign judgment shall be recognized by the authority to which it is presented. Should the conditions of recognition of the foreign judgment be raised as the main issue in a dispute, an action for ascertainment may be brought before the Sofia City Court. An action for enforcement of a foreign judgment shall be brought before the Sofia City Court. The court of its own motion shall verify the conditions of recognition and enforcement, but it shall not examine the merits of the dispute decided by the foreign court. These rules shall also apply to court settlements if they enjoy equal status as judgments of the court in the state in which the settlements are reached. The PILA does not provide for a →reciprocity requirement. Its provisions shall apply only insofar as a given foreign judgment or act of another authority does not fall within the scope of application of the Brussels I Regulation (recast) or any other applicable EU regulation.

VII. Arbitration

The Bulgarian Law on International Commercial Arbitration (DV, No 60 of 5 August 1988), adopted in 1988, introduces a modern system, based on the UNCITRAL Arbitration Model Law (United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration, Vienna 2006) (→Arbitration, (UNCITRAL) Model Law). According to its art 38, the arbitration panel shall settle the dispute in conformity with the choice of the applicable law by the parties, or, in the absence of a chosen law, with the law referred to by the choice-of-law rules deemed to be applicable. Under all circumstances, the arbitration panel shall apply the clauses of the contract and take commercial custom into consideration. Bulgaria is a party to the main multilateral international conventions in the field of arbitration, including the New York Convention and the European Arbitration Convention (European Convention of 21 April 1961 on international commercial arbitration, 484 UNTS 349).

Literature

  • Christa Jessel-Holst, ‘The Bulgarian Private International Law Code of 2005’ (2007) 9 YbPIL 375;

  • Vladimir Kutikov, Mezhdunarodno chastno pravo na NRBalgaria (Nauka i izkustvo 1976);

  • Petja Maesch, Kodifikation und Anpassung des bulgarischen IPR an das Europäische Recht (Mohr Siebeck 2010);

  • Boryana Museva, ‘Is labirinta na mezhdunarodnata kompetentnost po grazhdanski i targovski dela’ (2006) 2 Juridicheski sviat 41;

  • Boryana Museva, Deliktat v mezhdunarodnoto chastno pravo (Reglament‘Rim II’. KMChP – glava XI) (Sibi 2011);

  • Nikolai Natov, Komentar na Kodeksa na mezhdunarodnoto chastno pravo (Kniga parva, Siela 2006);

  • Nikolai Natov and others, Reglamentat‘Rim I’ (Reglament (EO) No 593/2008 na Evropeyskiya parlament i na Saveta ot 17.06.2008 godina otnosno prilozhimoto pravo kam dogovorni zadalzhenia) (Avtorski kolektiv, Siela 2009);

  • Nikolai Natov and others, Mezhdunarodniat dogovor – iztochnik na mezhdunarodnoto chastno pravo. Sbornik nauchni izsledvaniya na Katedra Mezhdunarodno pravo i mezhdunarodni otnosheniya, Yuridicheski fakultet naSU‘Sv. Kliment Ohridski’ (Siela 2013);

  • Zhivko Stalev, Sashtnost i funktsiya na mezhdunarodnoto chastno pravo (Nauka I iskustvo 1982);

  • Vessela Stancheva-Mincheva, Komentar na Kodeksa na mezhdunarodnoto chastno pravo (Sapostavka s aktove na evropeyskoto pravo)p. 1 (Sibi 2010);

  • Todor Todorov, Mezhdunarodno chastno pravo (Evropeyskiyat sayuz i Republika Balgaria) (2. izdanie, Sibi 2009);

  • Yordanka Zidarova, ‘Novata uredba na dogovornite zadalzheniya v obshtnostnoto pravo (Reglament (EO) No 593/2008 – “Rim I”)’ vav Sbornik v pamet na Prof. D-r Zhivko Stalev (Siela 2009) 407;

  • Yordanka Zidarova, ‘Prilozhimo pravo kam zadalzheniata za izdrazhka po Reglament (EO) No 4/2009 na Saveta’ (2010) 1 Yuridicheski svyat 11; Yordanka Zidarova and Vessela Stancheva-Mincheva, ‘Gesetzbuch über das Internationale Privatrecht der Republik Bulgarien’ (2007) 2 RabelsZ 400; Yordanka Zidarova and others, Avtonomiya na volyata v mezhdunarodnoto chastno pravo (Godishnik na Sdruzhenie na stipendiantite na Sassakava v Balgaria), Vol 2 (Sibi 2008).