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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Lithuania

Pavelas Ravluševičius

I. Sources of private international law

1. Major legislation

Lithuanian provisions of private international law and international jurisdiction are regulated in various legal sources, both domestic and international. Private international law provisions are contained in Book One, Chapter II of the Lithuanian Civil Code (adopted on 18 July 2000 and in force since 1 July 2001, published in the SJ No 74–2262, on 6 September 2000, henceforth Lithuanian CC). The structure reflects the codification idea and contains the most important issues, such as the application, limitation and determination of the content of foreign law, the application of international treaties and →renvoi. Separate sections regulate the issue of the law applicable to the civil legal status of natural persons, legal persons, family, contracts, delicts (→torts), real rights, intellectual property and →succession. The rules of international jurisdiction on →civil and commercial matters are contained in Part VII, entitled ‘International Civil Proceedings’, of the Civil Proceedings Code (adopted on 18 July 2000 and in force since 1 January 2003, published in the SJ No 36–1340, on 6 April 2002, henceforth Lithuanian CPC). This begins with the provisions on jurisdiction, defining the rules on the application and non-application of domestic jurisdiction. The next section of the Lithuanian CPC regulates proceedings and consists of the rules on participation in domestic court procedures, the application of foreign law (→Foreign law, application and ascertainment), and the recognition and enforcement of foreign court and arbitration decisions, whereby the court decisions from EU Member States are provided for separately. They have been in the special Legal Statute No X-1809 on enforcement of the European Union and international legal acts, which regulates the civil process of the Republic of Lithuania (introduced on 13 November 2008, published in the SJ No 137–5366 on 29 November 2008, henceforth Lithuanian LSE).

The Labour Code (adopted on 4 June 2002 and in force since 1 January 2003, published in the SJ No 64–2569 on 26 June 2002) regulates the application of foreign law, the law applicable to international labour relations and international agreements.

2. International conventions

International law prevails over national law. According to art 138, part 2 of the Constitution of the Republic of Lithuania (adopted on 25 October 1992, as amended, published in the SJ No 33–1014 on 30 November 1992, henceforth Lithuanian Constitution), international treaties ratified by the Lithuanian Parliament are a constituent part of the legal system of the Republic of Lithuania. Article 11 of the Law on International Treaties of the Republic of Lithuania (published in the SJ No 60–1948 on p. 19 July 1999) states that the international treaties in force and permanently applicable international treaties are to be performed in the Republic of Lithuania. According to art 1.13 Lithuanian CC, the international treaties concluded by the Republic of Lithuania are directly applicable to civil relationships and prevail in cases of conflict with national law. Provisions of international treaties are to be applied and interpreted in accordance with their international character and the need to secure their uniform interpretation and application. It is applicable to all international treaties of the Republic of Lithuania irrespective of whether they require ratification to enter into force. Moreover, the permanent applicable international treaties are also binding, although not in force. Lithuanian courts applied art 16 of the bilateral agreement between the Lithuanian Government and the Government of the German Federal Republic for cooperation in cultural areas (published in the SJ No 83–4352 on 14 July 2012), which is permanently applicable in Lithuanian law under art 25 of the Vienna Convention on the Law of Treaties (Vienna Convention on the Law of Treaties of 23 May 1969, 1155 UNTS 331). This involves recognizing the vindication rights of Germany and the German Foundation ‘Prussian Cultural Heritage’ as claimants. Cultural property cases dealt with returning of two paintings, which had been removed by the USSR military from German museums after the Second Word War and subsequently resold in Lithuania.

Lithuania is party to many international multilateral and bilateral agreements that influence the doctrine and practice of Lithuanian private international law. Lithuania is a member of the →Hague Conference on Private International Law. It has acceded to or ratified the following Hague Conventions: the Hague Civil Procedure Convention (Hague Convention of 1 March 1954 on civil procedure, 286 UNTS 265, in force since 17 July 2003), the Statute of the Hague Conference on Private International Law ((revised text) 220 UNTS 221, signed 31 October 1951, in force since 23 November 2001), the Hague Infant Protection Convention (Hague Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of infants, 658 UNTS 143, in force since 22 January 2002), the Hague Legalisation Convention (Hague Convention of 5 October 1961 abolishing the requirement of legalisation for foreign public documents, 527 UNTS 189, in force since 19 July 1997), 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, in force since 1 January 2001), the Hague Evidence Convention (Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters, 847 UNTS 241, in force since 1 October 2000), the Hague Traffic Accidents Convention (Hague Convention of 4 May 1971 on the law applicable to traffic accidents, 965 UNTS 415, in force since 24 March 2002), 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, in force since 1 October 2003), the Hague Maintenance Applicable Law Convention 1973 (Hague Convention of 2 October 1973 on the law applicable to maintenance obligations, 1056 UNTS 204, in force since 1 September 2001), the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89, in force since 1 September 2002), the Hague Access to Justice Convention (Hague Convention of 25 October 1980 on international access to justice, 1510 UNTS 375, in force since 1 November 2000), the Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and co-operation in respect of intercountry adoption, 1870 UNTS 167; 32 ILM 1134, in force since 1 August 1998) and the Hague Child Protection Convention (Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, 35 ILM 1391, in force since 1 September 2004).

Lithuania is also party to a number of UN Conventions, such as the Convention of 7 June 1930 for the Settlement of Certain Conflicts of Laws in Connection with Bills of Exchange and Promissory Notes (143 LNTS 317, in force since 27 July 2000), the Geneva Cheques Convention (Convention of 19 March 1931 for the Settlement of Certain Conflicts of Laws in Connection with Cheques, 143 LNTS 407, in force since 27 July 2000), the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3, in force p. 1since 12 June 1995), the CISG (United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods, 1489 UNTS 3, in force since 1 February 1996), the CMR (Convention of 19 May 1956 on the contract for the international carriage of goods by road, 399 UNTS 189, in force since 15 June 1993) and the UN Convention on the Rights of the Child of 20 November 1989 (1577 UNTS 3, in force since 1 January 1992).

Lithuania is a member of the following conventions prepared by the Council of Europe: 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, 1137 UNTS 81, in force since 17 November 1996), the European Convention of 15 October 1975 on the legal status of children born out of wedlock (1138 UNTS 303, in force since 18 July 1997), the European Foreign Law Convention (European Convention of 7 June 1968 on information on foreign law, 720 UNTS 147, in force since 17 November 1996), the Additional Protocol of 15 March 1978 to the European Convention on information on foreign law (1160 UNTS 529, in force since 20 August 2004), the European Child Custody Convention (European Convention of 20 May 1980 on recognition and enforcement of decisions concerning custody of children and on restoration of custody of children, 1496 UNTS 37, in force since 1 May 2003) and the Convention of 16 May 1972 on the Establishment of a Scheme of Registration of Wills (CETS No 77, 1138 UNTS 243, in force since 20 August 2004).

Lithuania is a contracting party to conventions in the areas of international protection of cultural objects, such as the UNIDROIT Convention on Stolen Cultural Objects (UNIDROIT Convention on stolen or illegally exported cultural objects of 24 June 1995, 2421 UNTS 457, in force since 1 January 1998), the UNESCO Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property of 14 November 1970 (823 UNTS 231, in force since 17 March 1998), the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (3511 UNTS 215, in force since 27 October 1998) and the Hague Second Protocol on Cultural Property in the Event of Armed Conflict (Second Protocol of 26 March 1999 to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, 2253 UNTS 172, in force since 13 June 2002).

Since gaining independence in 1990, Lithuania has developed a network of bilateral agreements on legal assistance and legal relations in civil and family cases, particularly with the former Soviet Republics such as Armenia, Azerbaijan, →Belarus, →Kazakhstan, Moldova, →the Russian Federation, →Ukraine and Uzbekistan. Such agreements were also concluded with the People’s Republic of →China and the Republic of →Poland.

A prominent role is played by the trilateral agreement of 11 November 1992 between the Republic of Lithuania, the Republic of →Estonia and the Republic of →Latvia on Legal Assistance and Legal Relations (in force since 3 April 1994 (SJ 1994 No 28) and still applicable on matters of the private international law in the Baltic region).

3. Role of case-law

Article 1.3 (‘Sources of civil law’) of the Lithuanian CC states that the sources of civil law are the Lithuanian Constitution and the Lithuanian CC, as well as other laws and international treaties of the Republic of Lithuania. Legislation constitutes the principal source of law in Lithuania. Customs are applicable in cases where established by law or agreed upon in contracts, but are subject to mandatory legal norms or the principles of good faith, reasonability and justice were analysed by the Senate of the Judges of the Supreme Court (Ruling No 28 of 21 December 2000 of the Senate of the Judges of the Supreme Court on Practice of the Courts of the Republic of Lithuania by Applying the Rules of the Private International Law). The purpose is to unify court practices by identifying errors in court decisions and their correction in the Supreme Court practice. The Supreme Court has developed a form of quasiprecedential law. Significantly, the ECtHR and the ECJ exert influence on the resolution of private international law issues, particularly the international family law and the recognition and enforcement of court and arbitration decisions. Lithuanian courts make a reference to the leading cases of the ECJ and the ECtHR. Relying on ECJ and ECtHR jurisprudence the prime method of interpretation of the domestic law has been developed.

4. p. 1Role of doctrinal writing

Doctrine is not an official source of law, but it is cited in court jurisprudence as an exception. Nevertheless, doctrinal writing and comparative legal research in particular have had a significant influence on Lithuanian legislation and court jurisprudence. This was seen, for example, in the context of the reform of the legal system based on the European legal tradition and it also contributes to the development of private international law in Lithuania.

II. History of private international law

The history of Lithuanian private international law is closely connected with the statehood of the Republic of Lithuania itself. After the declaration of independence on 16 February 1916, Lithuanian law was characterized by legal particularism, in that it applied a variety of foreign legal sources in its own legal order. The German Civil Code (Bürgerliches Gesetzbuch, BGB), the German Commercial Code (Handelsgesetzbuch, HGB), the German Code of Civil Procedure (Zivilprozessordnung, ZPO), the Code Napoleon and the Russian Tsar’s Legal Acts were applicable in the separate parts/regions of Lithuanian territory. This situation should have been modified through their adoption into Lithuanian law, but this process was interrupted by the Second Word War.

Lithuania lost its independence following its incorporation into the USSR by Soviet governmental forces on 15 June 1940. In fact, during the USSR period, the application of law from foreign jurisdictions was allowed strictly according to the legislative provisions of the Soviet Union, whose rules were basically of a discriminatory and confiscatory nature against the citizens of the USSR. Legal contacts with foreign jurisdictions, particularly from non-socialist blocs, were under the control of special state authorities, such as the Committee of State Security (KGB) and the Ministry of Internal Affairs (MVD). In addition, there was a monopoly of specially appointed chambers of attorney at law and state notaries, officially termed ‘iniurcolleguia’.

After restoration of the independent Lithuanian state on 11 March 1990, a transitional period began during which the Soviet legal rules relating to private international law were still applicable. The relevant rules were divided between the Lithuanian CC, the Lithuanian CPC and the Lithuanian Code for Families and Marriage. This was a rather specific legal situation in Lithuanian law at that time.

The critical situation changed after the first reform of private international law and civil proceedings. This occurred in 1994 after the adoption of the Law of the Republic of Lithuania on changes and amendments of the Civil Code of Republic of Lithuania (published in the SJ 1994, No 44–805 on 10 June 1994), and the adoption of the Law of the Republic of Lithuania on changes and amendments of the Civil Proceedings Code of the Republic of Lithuania (published in the SJ 1994, No 93–1809 on 2 December 1994). The rules on family, →marriage and →succession law relating to private international law were not changed.

The second reform of Lithuanian private international law was a result of the adoption of the new Lithuanian CC on 18 July 2000 (in force since 1 July 2001), as well as the preparations for EU membership. The second reform incorporated issues of family, marriage and succession into the Lithuanian CC. The reform of the CPC took place on 18 July 2000 and came into force on 1 January 2003.

Private international law after the first reform consisted of 21 articles in the Lithuanian CC and of seven articles in the CPC’ after the second reform the Lithuanian CC has 53 articles and the CPC has 46 articles.

Following the accession of Lithuania to the EU in 2004, the application of EU law has significantly influenced private international law in Lithuania.

III. Administration of private international law

1. Courts and non-judicial authorities

There are no specialized courts within the court system with jurisdiction for private international law and no special commercial courts with jurisdiction over business cases. Instead, these issues are covered by the jurisdiction of the ordinary courts. Only the recognition and enforcement of court and arbitrary judgments fall under the special jurisdiction of the Lithuanian Court of Appeal, with revision by the Supreme Court of the Republic of Lithuania. The rules of private international law are also applied by official authorities with non-judicial functions, such as notaries public, bailiffs, central registers of legal entities and property transactions with foreign legal and private persons.

2. p. 1Application and enforcement of foreign law

Article 1.10 Lithuanian CC provides that foreign law is applicable in the domestic legal order according to the agreements between the parties, Lithuanian law and the applicable international treaties of the Republic of Lithuania. Reference to a foreign law includes all the provisions applicable to the facts of a case under that law. The scope of application covers both private and public law. In the event of different legal systems within the foreign state, the applicable rules are to be determined in accordance with the criteria established in the law practice of that state.

The applicability of foreign law is limited by public order, as stipulated in the Lithuanian Constitution and other legal acts. Public order is interpreted by Supreme Court practice as being the main principle of the functioning of the legal system, state and society. Foreign law will not be applied in the Lithuanian legal system if it entails violations of fundamental human rights and liberties, or violations of the principles of justice, bona fides, or the fundamental interests of the state. Lithuanian law will be applicable under art 1.11 Lithuanian CC in such cases of contradiction. Mandatory provisions of the laws of the Republic of Lithuania cannot be excluded by the application of foreign law (→Foreign law, application and ascertainment) or those of any other state most closely connected with a dispute, irrespective of an agreement by the parties on another foreign law. In deciding on these issues, the courts usually have regard to the nature of the foreign law provisions, their purpose and the consequences of their application or non-application.

The applicable foreign law may not be applicable at the domestic level if, in light of all the existing circumstances of the case, it becomes evident that the foreign law concerned is not pertinent to the case or part of the case, whereas there is a closer connection with the law of another state.

Article 1.12 Lithuanian CC generally does not treat the content of foreign law as a matter of fact, but rather as a law to be applied by the court ex officio. In instances where the application of foreign law is established by agreement between the parties, the →burden of proof in relation to the content of the applicable foreign law in accordance with its official interpretation, practice of application and legal doctrine in the relevant foreign state is borne by the party to the dispute that seeks to rely on the foreign law. Lithuanian law is applicable if the court or the party seeking to rely on the foreign law fails to meet the necessary conditions. The main evidence for proof of a foreign law is relevant documentation (particularly official statements) and expert opinions (→Evidence, procurement of).

IV. Basic principles of private international law

1. Obligations

a) Law applicable to contractual obligations

The →choice of law is the general principle to determine the law applicable to →contractual obligations.

Absent party agreement on the applicable law, the law of the state with which the contractual obligation/agreement is most closely connected will be applied. According to art 1.37 Lithuanian CC, the contractual obligation/agreement is presumed to be the most closely connected with the state in whose territory: (i) the party obliged to effect the characteristic performance under the contract is domiciled or has its central administration, whereby if the obligation is most closely connected with the law of the state where the business place is located, the law of that state will apply; (ii) immovable property is located where the subject matter of the contract is the right in the immovable property or the right to its use; (iii) the place of the principal business of a carrier is located at the time when the contract for carriage was concluded, provided the state of the carrier’s principal place of business is also the same state where either the cargo was loaded, or the head office of the sender is located, or the place the cargo was dispatched from.

Additionally, special choice-of-law rules have been created. A contract of insurance (→Insurance contracts) is governed by the law of the state where the domicile (→Domicile, habitual residence and establishment) or the place of business of the insurer is located. A contract of insurance with regard to an immovable thing is governed by the law of the state in whose territory the thing is located. An arbitration agreement will be governed by the law applicable to the principal contract and, in the case of invalidity of the principal contract, by the law of the place where the arbitration agreement was concluded, unless it is p. 1impossible to identify the place of the conclusion of the contract, in which case the law of the state in which the arbitration is situated will apply. Contracts concluded in a stock exchange or auction are governed by the law of the state in which the stock exchange or auction is located. The form requirements of a transaction will be governed by the laws of the place where the parties entered into that transaction. A contract made by the parties residing in different states will also be considered valid if its form corresponds to the legal requirements for the relevant transaction as established in the national law of at least one of those states. The contractual parties may choose the law applicable to the form requirements of their transaction.

A consumer contract is subject to the provisions of EU law. The choice of the law applicable to a →contractual obligation may deprive or restrict consumers in their right to protect their interests through the →remedies provided for by the law of their state of domicile. The form of a power of attorney will be governed by the law of the state in whose territory it is issued.

Gifts are governed by the law of the donor’s state of domicile or business activities, with the exception of contracts for the →donation of an immovable thing, which are governed by the law of the state where that immovable thing is located.

Relations arising from the assignability of a claim (→Assignability/Assignment of claims) and the assumption of a debt are governed by the law agreed by the parties. The parties’ choice of law in the assignment of a claim may not be applied against the debtor without his or her prior consent. The form requirements of the assignment of a claim or the assumption of a debt will be governed by the law applicable to the contract of assignment or assumption.

Article 2 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) supersedes the domestic provisions and is of universal application.

b) Law applicable to delictual obligations

The law applicable to delictual obligations depends on the choice of the aggrieved party of either the law of the state where the tortious act was committed or any other tortious circumstances occurred, or of the law of the state in which the damage was sustained. Where it is impossible to determine the place where the act was committed or other circumstances occurred, or the state in which the damage was sustained, the law of the state most closely connected with the compensatory claim will apply.

Special choice-of-law rules apply in the case of damage caused by defective products. The applicable law will be determined according to the place where the damage was incurred, or the place of business of the person liable for the damage, or the place where the products of inferior quality were acquired.

Article 1.44 Lithuanian CC makes direct reference to the Hague Traffic Accidents Convention, which is thus applicable in cases arising from a traffic accident.

Article 1.45 Lithuanian CC contains special rules on the ‘Law applicable to claims resulting from infringement of personal non-property rights’. Compensatory claims resulting from the infringement of personal non-property rights committed by the mass media are governed at the election of the aggrieved person by the law of: (i) the state where the aggrieved person is domiciled or has his or her place of business; (ii) the state where the infringement occurred; or (iii) the state where the tortfeasor is domiciled or has his or her place of business. Response to a media denial is governed by the law of the state in which the publication appeared or the radio or television program was broadcasted.

According to art 1.46 Lithuanian CC, compensatory claims arising from unfair competition (→Competition, unfair) are governed by the state law of the state market where the negative effects of the unfair competition occurred. If the act of unfair competition has exclusively affected the interests of an individual person, the applicable law is that of the state where the place of the aggrieved person’s business is located. These domestic rules are superseded by art 3 of 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) and is of universal application.

c) Obligations on other grounds

According to art 1.54 Lithuanian CC, the law applicable to claims resulting from an obligation performed without any legal grounds for such performance will be determined by the law of the state pursuant to the laws of which p. 1provide the legal sources for the obligation. Claims related to unjust enrichment resulting from unlawful actions are governed by the law of the state where such unlawful actions were performed. Unilateral transactions are governed by the law of the state where they were concluded.

Article 1.56 (‘Law applicable to securities’) Lithuanian CC makes direct reference to the Geneva Cheques Convention and the Convention of 7 June 1930 for the Settlement of Certain Conflicts of Laws in Connection with Bills of Exchange and Promissory Notes, which are accordingly applicable to these instruments. The law applicable to other securities will be defined according to the law of the state where they are issued (drawn). The currency in which payments are to be made is determined by the law of the state where the payment falls due, unless the parties have chosen another currency. Obligations deriving from the management of another’s affairs, as well as obligations based on other grounds are governed by the law of the state where the grounds for the obligation occurred. Limitation periods are defined by the law applicable in determining the rights and obligations of the participants.

Provisions of the Lithuanian CC remain applicable after the Rome II Regulation came into force.

2. Property

Article 1.48 Lithuanian CC stipulates the basic principle that rights of ownership and other real rights in an immovable or movable thing are governed by the law of the state where the thing was located at the moment of change in its legal status. Designation of a thing as movable or immovable is determined by the law of the state in which the relevant thing is located. The ownership right and other real rights in a thing in transit (cargo) are governed by the law of the state of destination. The ownership right to an immovable thing resulting from acquisitive →prescription is determined by the law of the state where the thing is located. Official registration of the ownership right and other real rights is governed by the law of the state where the thing is located at the time of its registration.

The parties may choose in their agreement the law of the state of dispatch or the state of destination of the thing, or the law regulating the underlying legal transaction as the law applicable to the creation and termination of the rights to the movable property. The choice of applicable law may not affect the rights of third parties.

The law applicable to encumbrance of the right in a movable thing is determined according to the principle that the encumbrance established abroad follows the thing, but agreements on retention of title may not affect the rights of third persons acting in good faith. Retention of title over a movable thing in transit is governed by the law of the state of its place of destination.

The choice of law is applicable to the pledge and other securities, though the choice of law may not affect the rights of third parties. Absent a choice of law by the parties, the pledge of claims and securities will be governed by the law of the state of the secured creditor’s domicile or business, while the pledge of other rights is governed by the law applicable to such rights.

3. Intellectual property

Section 8 (‘Law applicable to intellectual property rights’) Lithuanian CC has two special articles regarding law applicable to contracts related to intellectual property rights (art 1.52 Lithuanian CC) and regarding intellectual property rights themselves and the law applicable to their protection (art 1.53 Lithuanian CC).

The contracting parties may choose the law applicable to their contracts related to intellectual property rights or, absent such agreement, the contracts are governed by the law of the state where the party transferring or granting use of the intellectual property has its domicile or place of business. Contracts between an employer and an employee regarding the rights to intellectual property created by the employee in the course of their employment are governed by the law applicable to employment contracts (→Employment contracts, applicable law). Intellectual property rights and their protection are defined by the law of the state where protection of the intellectual property rights is sought. In cases of intellectual property rights infringement, the parties may agree that the applicable law is that of the state where proceedings are conducted. Article 8 of the Rome II Regulation applies to non-contractual obligations arising from the infringement of an intellectual property right.

The Community Design Regulation (Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs, [2002] OJ L 3/1) and the Community Trade Mark Regulation p. 1(Council Regulation (EC) No 207/2009 of 26 February on the Community trade mark, [2009] OJ L 78/1) are applicable according to their scope of application as provided by EU law.

4. Family matters

Family matters are regulated in section 4 (‘Law applicable to family legal relationships’) Lithuanian CC. The legal rule is based on domicile as general principle and citizenship as a supplementary →connecting factor.

The law of domicile is generally applicable to the capacity to marry. The Civil Registration Bureau of the Republic of Lithuania has jurisdiction to register a →marriage if either of the prospective spouses is domiciled in Lithuania or is a Lithuanian citizen at the time of celebration of the marriage. Nevertheless, a marriage validly performed abroad is recognized in Lithuania, except in cases when both spouses domiciled in Lithuania celebrated the marriage abroad with the purpose of evading grounds for the nullity of their marriage under Lithuanian law.

The personal relations between spouses are governed by the law of their state of domicile, while the following additional conflict-of-law rules are applicable, such as: (i) if the spouses are domiciled in different states, then the law of the state of their last common domicile is applicable; and (ii) if there is no common domicile, then the most closely related law is applicable. The law of the state of domicile of the spouses is applicable to the →matrimonial property legal regime. Where the spouses are domiciled in different states, the law of their common state of citizenship applies. The law chosen by the spouses upon agreement is applicable to the contractual legal regime of matrimonial property. In this case, the spouses may choose the law of the state of their common or intended domicile, or the law of the state in which the marriage was celebrated, or the law of the state of which one of the spouses is a citizen. The parties’ choice of applicable law is treated as valid if it complies with the legal requirements of the chosen state or the law of the state in which the agreement is made. The law of the spouses’ state of domicile is applicable to the separation and dissolution of marriage. Special protection rules are applicable if the law of the state of common citizenship of the spouses does not permit the dissolution of marriage or imposes special conditions for dissolution. In this case Lithuanian law is applicable to the dissolution of marriage if one of the spouses is also a Lithuanian citizen or is domiciled in the Republic of Lithuania. In ascertaining or contesting paternity or maternity, the origin of a child is established in accordance with: (i) the law of the state the citizenship of which the child acquired at birth; or (ii) the law of the state which is recognized as the child’s domicile at the time of birth; or (iii) the law of the state in which one of the child’s parents is domiciled; or (iv) the law of the state of which one of the parents was a citizen at the time of the child’s birth, whichever is more beneficial to the child. The consequences of legitimation are governed by the law of the state of the child’s domicile (→Kinship and legitimation).

Cases of →adoption and property relationships between parents and child are governed by the law of the state of the child’s domicile. Adoption is prohibited if the recognition of adoption in the foreign country remains uncertain.

Guardianship and curatorship of family members who have reached the age of majority are governed by the law of the state of such incapable persons’ domicile.

The Commission decision of 21 November 2012, confirming the participation of Lithuania in enhanced cooperation in the area of the law applicable to divorce and legal separation (Commission of the European Union, ‘Commission Decision of 21 November 2012 confirming the participation of Lithuania in enhanced cooperation in the area of the law applicable to divorce and legal separation (2012/714/EU)’ [2012] OJ L 323/18), has allowed the application of →the Rome III Regulation (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) in the case of Lithuania since 22 May 2014. However, art 3 of the Rome III Regulation stipulates universal scope of application, with the aim of replacing national provisions. Nevertheless, the Lithuanian CC provisions remain in force.

5. Succession

The applicable law of →succession is determined according to the general principle of the deceased’s domicile at the time of his or her death.

Article 1.61 Lithuanian CC consists of specific rules on testamentary provisions related to the capacity to make a will and the form p. 1requirements of a will. The will is the principal document which governs the succession.

Where succession opens by the death of a Lithuanian citizen, then irrespective of the applicable law, any heirs residing in Lithuania and in possession of the right to the mandatory share of succession will inherit that portion in accordance with Lithuanian law, with the exception of immovable things, whereby the principle of lex rei sitae is generally applicable to the succession of real estate. Property located in Lithuania could not belong to the ownership of the foreign state if the foreign successors did not exist and where no other heir thereto is known. Such property will devolve to the ownership of the Republic of Lithuania.

The 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)) is applicable under Lithuanian law, according to arts 83 and 84 of the Succession Regulation.

6. Legal persons

Section 3 (‘Law applicable to legal persons or any other organizations’) Lithuanian CC provides choice-of-law rules related to legal persons and their forms. The civil capacity of foreign legal persons or any other organizations is governed by the laws of the state where those legal persons or organizations are founded.

The civil capacity of the foreign legal person or any other organization is determined by the law of the state of its actual functioning if the procedural requirements of its foundation have been violated. Also, irrespective of the state of foundation of a legal person or any other organization, the civil capacity of the legal person’s sub-divisions will be determined in accordance with Lithuanian law if the head office, principal place of business or other activity of the sub-division is located in Lithuania.

A merger, association or transfer of the head office of legal persons or any other organizations, one of which is located in Lithuania and the other in a foreign state, will only have effect on their civil capacity in Lithuania if such transactions are implemented in conformity with the laws of both states concerned.

Article 1.21 Lithuanian CC provides that representative offices and branches of foreign legal persons or other organizations registered in Lithuania are governed by Lithuanian law. In addition, at least one of the persons acting on behalf of a representative office or a branch must reside in Lithuania, although this requirement does not apply to representative offices or branches, established in Lithuania of legal persons or other organizations of EU Member States and the states of the European Economic Area. There are special rules applicable to the representative offices and branches of the legal persons from third countries.

The law applicable to legal persons contains special rules on the annulment or invalidity of a transaction. Thus, legal persons may not claim for annulment or invalidity of a transaction formed by their body or any other representatives in excess of their competence (powers) if the law of the state where the domicile or the head office of the other party to the transaction is located provides for no restrictions on such representative powers, unless, however, the other party knew or in the circumstances should reasonably have known of such restrictions.

The civil capacity of the foreign state and their institutions, as well as those of local governments and local government institutions, is governed by the law of the state concerned.

V. Basic principles of jurisdiction

The International Civil Proceedings part of the Lithuanian CPC begins at art 780 with the rule that the Lithuanian CPC will apply unless an international agreement to which Lithuania is party governs the relevant relations. This means that the Lithuanian jurisdictional rules on international agreements prevail over the domestic rules.

However, art 781 Lithuanian CPC provides for the priority of domestic jurisdiction. The Lithuanian courts have an obligation to check domestic jurisdiction ex officio. The domestic jurisdiction of the Lithuanian courts established under the Lithuanian Civil Proceedings Code remains regardless of the fact that the same case is pending in the court of a foreign jurisdiction.

The Lithuanian CPC provides for exclusive jurisdiction: (i) in family cases when a child or one of the parents is a Lithuanian citizen, or they are both domiciled in Lithuania; (ii) regarding declarations by private persons on restrictions of the legal capacity of the disappeared or p. 1dead; (iii) on the rights in rem arising in relation to →immovable property.

Domestic jurisdiction is given in cases where: (i) the defendant is located in Lithuania during the submission of the claim against it; (ii) the defendant possesses property or property rights in Lithuania; (iii) the dispute is related to rights in rem and succession located in Lithuania; or (iv) the obligation is to be performed in Lithuania. Agreements on the limitation of jurisdiction of the Lithuanian courts are permitted between economic entities. These should be in written form. The parties to the agreement must have disputes arising out of contractual legal relations in courts outside Lithuania, whereby such agreement may not contradict the law of the country to whose courts the dispute hearing is expected to be referred. Such an agreement is prohibited for proceedings under the exclusive jurisdiction of the Lithuanian courts.

EU Regulations are directly applicable, although domestic law fills the gaps and chooses the options left by the EU Regulations. The Lithuanian LSE implements this kind of ‘open provision’ of the Evidence Regulation (Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, [2001] OJ L 174/1), the European Enforcement Order Regulation (Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, [2004] OJ L 143/15), the European Payment Order Regulation (Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure, [2006] OJ L 399/1), the European Small Claims Procedure Regulation (Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure, [2007] OJ L 199/1), the European Service Regulation (Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000, [2007] OJ L 324/79) and Council Decision No 2011/432/EU (Council of the European Union, ‘Council Decision No 2011/432/EU of 9 June 2011 on the approval, on behalf of the European Union, of the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance’ [2011] OJ L 192/39).

VI. Recognition and enforcement of judgments

The general applicable rules relating to the recognition and enforcement of foreign judgments (settlements) are laid down in arts 809–817 Lithuanian CPC. The basic principle of enforcement and recognition of foreign judgments is →reciprocity, and this principle has determined the structure of the applicable legal rules.

EU Regulations and international agreements prevail over domestic rules. Final and binding judgments are recognized within the Lithuanian legal order. Provisional orders and interim decisions from EU Member States are applicable in the Lithuanian jurisdiction under art 31 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)).

In cases related to third countries, provisional orders and interim decisions may be recognized according to the reciprocity principle.

The recognition and enforcement of foreign judgments (settlements) under art 810 Lithuanian CPC will be denied if: (i) a foreign judgment is not final and binding; (ii) the Lithuanian courts have exclusive jurisdiction; (iii) there is incompatibility with the constitutional public order; (iv) the foreign judgment is irreconcilable with a judgment given in a dispute between the same parties in Lithuania; or (v) there is a lack of proper notification of the proceedings to the defaulting defendant.

The Lithuanian LSE implements ‘open provisions’ of the Brussels I Regulation (recast), 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 the 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).

The Lithuanian Court of Appeal and the Supreme Court have developed jurisprudence in p. 1cases of doubtful enforcement of EU Member State court decisions, referring these to the ECJ for a preliminary ruling, as exemplified by the Rinau case (Case C-195/08 PPU Inga Rinau [2008] ECR I-5271) and the Supreme Court Request in the Gazprom case (Ruling No 3K-7-326/2013 of 10 October 2013 of the Supreme Court of the Republic of Lithuania in the Case of Gazprom).

VII. Arbitration

On 2 April 1996, the current Legal Statute No I-1274 on commercial arbitration (published in the SJ No 39–961 on 2 May 1996) was adopted. This legal act is modelled on the UNCITRAL Arbitration Model Law (United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration as adopted on 21 June 1985 and as amended on 7 July 2006, UN Doc A/40/17 and A/61/17; →Arbitration, (UNCITRAL) Model Law) with all its amendments, which, according to art 4 of Legal Statute No I-1274 (‘Legal statute and Interpretation of the definitions of the legal statute’), serve as secondary interpretation measures for domestic legal statutes.

Legal Statute No I-1274 regulates legal relations arising from arbitration agreements and arbitral proceedings, the making and enforcement of arbitral awards, the authority of Lithuanian courts in the arbitration field, and other relations pertaining to arbitration. The law chosen by the parties will be applied and, absent such a choice, the arbitration panel will apply the appropriate law, including trade customs.

Article 12 (‘Disputes which may not be submitted to arbitration’) of Legal Statute No I-1274 provides the following restrictions: disputes arising from constitutional, employment, family and administrative legal relations, as well as disputes connected with competition, patents, trade marks, service marks and bankruptcy, and disputes arising from consumption agreements.

Lithuania has been party to the New York Convention since 12 June 1995. The Lithuanian courts have developed the practice of recognition and enforcement of arbitral awards, based on the criteria provided by the New York Convention.

The Lithuanian authorities have not made a declaration on the application of the New York Convention in compliance with art 1.3 of the New York Convention and have stated that Lithuania will apply the Convention provisions on the basis of the reciprocity to arbitral awards adopted on the territory of the non-Member States to the Convention.

Literature

  • Mindaugas Maksimaitis, Teisės šaltinių įvairovė Klaipėdos krašte 1923–1939 (Teisė 1993) 27;

  • Valentinas Mikelėnas, Tarptautinės privatinės teisės įvadas (Justitia 2001);

  • Valentinas Mikelėnas, ‘Europos ir tarptautinių teisės normų ir standartų vaidmuo kuriant naująjį Lietuvos Respublikos civilinį kodeksą ir aiškinant jo normas: kodekso rengimo grupės vizija’ <www.lat.lt>;

  • Pavelas Ravluševičius, ‘Die Reform des Internationalen Privatrechts in Litauen’ [2003] IPRax 272;

  • Janina Stripeikienė, ‘Europeizuotos ir internacionalizuotos privatinės teisės aiškinimas ir taikymas Lietuvos Aukščiausiojo Teismo Civilinių bylų skyriaus praktikoje: lyginamojo metodo vaidmuo’ <www.lat.lt>.