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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Macedonia, FYR

I. Sources of private international law

1. Domestic legislation

The Republic of Macedonia is among those countries that have comprehensively codified their private international law. The Macedonian Private International Law Act of 2007 (Zakon za medjunarodno privatno pravo, Official Gazette of Republic of Macedonia, No 87/2007 of 12 July 2007 and No 156/2010 of 6 December 2010, henceforth Macedonian PILA) contains provisions on conflict of law, international jurisdiction, civil procedure and the recognition and enforcement of foreign judgments with regards to status of persons, family, labour, →succession, obligations and property matters, as well as special provisions on the competences of diplomatic and consular offices. The Macedonian PILA is positioned as ‘lex generalis’ on the issues it covers, but does not apply in cases where the subject matter in question is governed by another Act.

Although the Macedonian PILA has codified private international law rules, there remains a small number of choice-of-law rules that are contained in statutes relating to specific matters. These are: the Law on Bills of Exchange (Official Gazette of Republic of Macedonia, No 3/2002 of 22 January 2002 and No 67/2010 of 14 May 2010), the Law on Cheques (Official Gazette of Republic of Macedonia, No 3/2002 of 22 January 2002 and No 88/2008 of 16 July 2008), the Law on Civil Law Aspects of Carriage by Air (Official Gazette of Republic of Macedonia, No 85/2008 of 11 July 2008, No 148/2011 of 21 December 2011 and No 10/2015 of 22 January 2015) and the Law on International Commercial Arbitration (Official Gazette of Republic of Macedonia, No 39/2006 of 30 March 2006). International legal assistance is governed by the Civil Procedure Act. In addition to the Macedonian PILA, rules on international jurisdiction are included in the Insolvency Act (Official Gazette of Republic of Macedonia, No 34/2006, 126/2006, 84/2007 and 47/2011). The Civil Procedure Act 2005 (Official Gazette of Republic of Macedonia, No 79/2005 of 21 September 2005, No 110/2008 of 2 August 2008, No 116/2010 of 1 September 2010 and 7/2011 consolidated version of 20 February 2011) and the Non-litigious Civil Procedure Act of 2008 (Official Gazette of Republic of Macedonia, No 9/2008 of 18 January 2008) contain provisions on international jurisdiction, although most of them merely reproduce rules provided in the Macedonian PILA.

The rights of foreign nationals and foreign legal persons are also regarded as part of Macedonian private international law, and are regulated in various acts, such as the Family Act (Official Gazette of Republic of Macedonia, No 80/92 of 22 December 1992 subsequently amended, and No 153/2014 consolidated version of 20 October 2014), the Act on Property Law (Official Gazette of Republic of Macedonia, No 18/2001, 92/2008, 139/2009 and 35/2010), the Obligations Act (Official Gazette of Republic of Macedonia, No 18/2001 of 5 March 2001, No 4/2002 of 25 January 2002, No 5/03 of 31 January 2003, No 84/08 of 11 July 2008, No 81/09 of 30 June 2009 and No 161/09 of 30 December 2009), the Succession Act (Official Gazette of Republic of Macedonia, No 47/1996 of 12 September 1996), the Aliens Act (Official Gazette of Republic of Macedonia, No 35/2006 of 23 March 2006, No 66/2007 of 31 May 2007, No 117 of 18 September 2008, No 92/2009 of 24 July 2009, No 156/2010 of 6 December 2010, No 158/2011 of 15 November 2011, No 84/2012 of 04 July 2012, No13/2013 of 23 January 2013 and No 147/2013 of 28 October 2013), the Copyright Act (Official Gazette of Republic of Macedonia, No 115/2010 of 31 August 2010, No 51/2011 of 13 April 2011 and No 147/2013 of 28 October 2013), the Industrial Property Act (Official Gazette of Republic of Macedonia, No 21/2009 of 17 February 2009, No 24/2011 of 25 February 2011, No 12/2014 of 22 January 2014 and No 41/2014 of 27 February 2014), etc.

2. International conventions

Article 118 of the Macedonian Constitution (Official Gazette of Republic of Macedonia, p. 1No 52/1991 of 22 November 1991) adopts the monist conception and provides that once an international treaty has been concluded in accordance with the Constitution and ratified by the parliament, it becomes part of the legal system of Macedonia, and cannot be altered by domestic laws. Accordingly, international conventions prevail over domestic legislation. Their provisions may only be repealed, amended, or suspended in the manner provided for in the treaties themselves or in accordance with the general rules of international law. Furthermore, ever since adoption of the Constitution in 1992, the Macedonian Constitutional Court has created the precedent that it lacks competence to review compliance of the substance of ratified international treaties with the Constitution, since such review is performed by the parliament in the course of the treaty ratification process.

Macedonia is party to a substantial number of multilateral or bilateral treaties which concern private international law matters. Since the proclamation of independence in 1991, Macedonia has retained membership of a significant number of multilateral conventions through succession to the Former Yugoslav Federation, and has concluded or acceded to several new ones.

Macedonia is a member of the →Hague Conference on Private International Law since 1958, when the former Socialist Federal Republic of Yugoslavia accepted the Statute of the Conference. On 1 December 1993, it was established that the Republic of Macedonia became a member of the conference on that date with retroactive effect as from 20 September 1993. As of 2 January 2015 Macedonia has ratified, acceded to or entered by succession into the following Hague Conventions: the Hague Civil Procedure Convention (Hague Convention of 1 March 1954 on civil procedure, 286 UNTS 265), the Hague Testamentary Dispositions Convention (Hague Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions, 510 UNTS 175), the Hague Legalization Convention (Hague Convention of 5 October 1961 abolishing the requirement of legalization for foreign public documents, 527 UNTS 189), 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 Traffic Accident Convention (Hague Convention of 4 May 1971 on the law applicable to traffic accidents, 965 UNTS 415), 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 Products Liability Convention (Hague Convention of 2 October 1973 on the law applicable to products liability, 1056 UNTS 191), the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89), the Hague Access to Justice Convention (Hague Convention of 25 October 1980 on international access to justice, 1510 UNTS 375) and the Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and cooperation in respect of inter-country adoption, 32 ILM 1134).

The United Nations as a universal international organization has also contributed towards the progressive unification of private international law. Macedonia has acceded to or ratified the following conventions concluded within the framework of the United Nations: the UN Maintenance Convention 1956 (United Nations Convention of 20 June 1956 on the recovery abroad of maintenance, 268 UNTS 3 and 649 UNTS 330) and the United Nations Convention of 10 December 1962 on consent to marriage, minimum age for marriage and registration of marriages (521 UNTS 231). As far as the UNCITRAL conventions are concerned, Macedonia has ratified the CISG (United Nations Convention of 11 April 1980 on contracts for the international sale of goods, 1489 UNTS 3) and the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3), which applies without territorial →reciprocity. Finally, Macedonia has acceded to the European Arbitration Convention (European Convention of 21 April 1961 on international commercial arbitration, 484 UNTS 349), which was adopted within the United Nations Economic Commission for Europe. Macedonia is also party to a significant number of regional conventions. Macedonia has ratified or acceded to the following conventions concluded within the Council of Europe: the European Foreign Law Convention (European Convention on information on foreign law of 7 June 1968, 720 UNTS 147), the European Agreement of 27 January 1977 on the transmission of applications for legal aid (ETS No 92) and the European Child Custody Convention (European Convention of 20 May 1980 on p. 1recognition and enforcement of decisions concerning custody of children and on restoration of custody of children, 1496 UNTS 37). Macedonia is party to two conventions concluded within the International Commission on Civil Status (→CIEC/ICCS (International Commission on Civil Status)): the Convention of 27 September 1956 on the issue of certain extracts from civil status records to be sent abroad (299 UNTS 211) and the Convention of 8 September 1976 concerning the issue of plurilingual extracts from civil status records (1327 UNTS 3).

Macedonia has also ratified international conventions which constitute unifying rules on international carriage, but which also contain private international rules, such as the Montreal Convention (Convention of 28 May 1999 for the unification of certain rules relating to international carriage by air, 2242 UNTS 309) and COTIF (Convention of 9 May 1980 concerning international carriage by rail, 1396 UNTS 2, in the version of the Protocol of Modification of 3 June 1999, available at <www.otif.org>).

Macedonia has concluded or entered by succession of the former Socialist Federal Republic of Yugoslavia (henceforth SFRY) into a significant number of bilateral treaties on legal assistance, recognition and enforcement of judgments, civil procedure and conflict of law. Bilateral conventions on legal assistance, civil procedure and recognition and enforcement of judgments were concluded with Albania (1998), Algeria (1982), Bosnia and Herzegovina (2005), Bulgaria (2000), Croatia (1995), Cyprus (1984), Montenegro (2004), Romania (2003), Slovenia (1996), Serbia (2004) and Turkey (1997). Bilateral treaties with the Czech Republic (1964), Hungary (1968), Mongolia (1981), Poland (1960), Russia (1962) and Ukraine (2000) also contain choice-of-law rules for civil and commercial matters. Bilateral conventions on legal assistance and civil procedure were concluded with Austria (1954), Belgium (1971), France (1969), Greece (1959), Italy (1960), Iran (1956) and the United Kingdom (1936). Bilateral conventions on the reciprocal recognition and enforcement of judgments in civil and commercial matters were concluded with Greece (1959) and France (1971). Bilateral conventions on the reciprocal recognition and enforcement of judgments on maintenance were concluded with: Austria (1961) and Belgium (1973). In addition, a bilateral treaty with Austria on reciprocal recognition and enforcement of arbitral awards is in force (1960).

3. Significance of EU private international law

The Republic of Macedonia entered into the Stabilization and Association Agreement with the EU in 9 April 2001 (Official Gazette of Republic of Macedonia, International Treaties, No 28/2001 of 13 April 2001). This agreement provided among others an obligation for approximation of laws of the country with EU law. Article 68(1) of the Stabilization and Association Agreement provided that Macedonia ‘shall endeavour to ensure that its laws will be gradually made compatible with those of the Community’. This gradual approximation of laws was intended to take place in two stages (art 68(2) Stabilization and Association Agreement). In the first period, Macedonian law was to be aligned with the fundamental elements of the internal market acquis as well as to other trade-related areas (art 68(3) Stabilization and Association Agreement). During a second stage, the approximation of laws was extended to all other elements of the acquis (art 68(4) Stabilization and Association Agreement). Whereas private international law was not covered in the first stage of approximation, the Macedonian authorities have since taken steps to align the Macedonian PILA with private international law. The first step was harmonizing the conflict rules for non-contractual obligations with the →Rome II Regulation (non-contractual obligation) (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). Accordingly, on 14 December 2010 amendments to the PILA were adopted by the Macedonian Parliament, which came into force on 14 May 2011. Harmonization of private international law with the European acquis continues, and the next amendments of the PILA in that direction are expected by the end of 2015.

Macedonia participates in a regional project within the framework of CEFTA for adoption of a Convention on Jurisdiction and the Mutual Recognition and Enforcement of Judgments in Civil and Commercial matters, which will be named ‘Sarajevo Convention’ after the place where the decision to initiate such a project was finally taken in 2011. The text of the Sarajevo Convention corresponds to the 2007 →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) and it will provide p. 1for common rules for international jurisdiction of the courts, and expeditious mutual recognition and enforcement of judgments, between the contracting parties Member States, all of which are contemplating becoming EU Member States.

4. Role of case-law

The general system of legal sources is laid down in art 2 of the Macedonian Statute on Courts (Zakon za sudovite, Official Gazette of Republic of Macedonia, No 58/2006 and No 35/2008, henceforth Macedonian Statute on Courts), which applies to all areas of the law, including private international law. Article 2(2) Macedonian Statute on Courts provides that Macedonian court decisions are to be based on the Constitution, the statutes and the international treaties ratified in accordance with the Constitution. Specific substantive statutes also provide for application of trade usages as sources of law, although they play almost no role as a source of private international law due to the lack of customs in this field. Article 2 Macedonian PILA provides that legal gaps will be filled by recourse to the provisions and principles of the PILA itself, the principles of the Macedonian legal system, as well as the principles of the private international law.

Although case-law is not an official source of law, jurisprudence of the Supreme Court is important in providing uniformity in the application of law, but has as yet played no significant role in the private international law field.

5. Role of doctrinal writing

Scholarly writing is not a source of law and lacks binding force. While the courts do not invoke scholarly writing in support of their decisions, scholarly input has traditionally been a crucial influence on the legislature when drafting private international law provisions, since there are a limited number of experts in this field. Scholars also have a very important role in the process of training and education of judges.

II. History and development of private international law

The Republic of Macedonia is one of the seven new states that emerged from the dissolution of the former SFRY in 1991. The former SFRY was one of the few countries that had adopted a special Private International Law Act in the early 1980s. This was the 1982 Federal Act on Resolution of Conflict of Laws with other Countries in Certain Relations (Zakon za reshavanje na sudirite na zakonite so propisite na drugi zemji vo odredeni odnosi, Official Gazette of SFRY, No 43/1982, henceforth ZRSZ). It was considered to be one of the most advanced private international law enactments at the time, both in the field of the conflict of law and international civil procedure. Before enactment of the ZRSZ, private international law provisions in the former SFRY were dispersed over various statutory instruments, usually in a separate chapter devoted to conflict of law.

Since gaining independence, the Republic of Macedonia has retained the ZRSZ in force, as well as a certain number of other federal Acts. In 2006, the Macedonian Ministry of Justice decided to reform the ZRSZ. On 4 July 2007, the Macedonian parliament adopted the Macedonian PILA, which went into force on 19 July 2007. In 2010, the conflict rules of the PILA for non-contractual obligations, as mentioned earlier, were harmonized with the Rome II Regulation.

III. Administration of private international law

1. Courts and non-judicial authorities

The judicial system of the Republic of Macedonia comprises courts of general jurisdiction and administrative courts. Given the lack of specialized courts in the field, private international law matters typically fall within the competence of the courts of general jurisdiction. These are the basic courts, appellate courts and the Supreme Court. In addition to courts, private international law matters concerning family law are within the competence of social care centres, themselves administrative authorities. Matters concerning succession and other private international law matters are addressed by other authorities performing non-judicial functions, such as public notaries and commercial and property registrars. The choice-of-law rules contained in the Macedonian PILA and other statutes are of mandatory nature, and accordingly have to be applied ex officio by the courts and all other authorities in all situations involving a foreign element.

2. Application of foreign law

Article 13(1) Macedonian PILA provides that the court or any other competent authority must ex officio ascertain the content of the p. 1applicable foreign law. The court or the other competent authority may request information on the foreign law from the Ministry of Justice (art 13(2) Macedonian PILA). Nevertheless, the parties may in the course of the proceedings produce a public document issued by a competent foreign authority or institution on the content of the foreign law (art 13(3) Macedonian PILA). Finally, in cases where the content of a foreign law cannot be established, Macedonian law applies (art 13(4) Macedonian PILA).

IV. Basic principles of jurisdiction

1. General structure

Rules on international jurisdiction are provided in Chapter 3 Macedonian PILA (arts 52–91). Article 54 PILA lays down the basic principle that exclusive jurisdiction of Macedonian courts or other authorities exists only when expressly provided by law. The PILA provides exclusive jurisdiction for the rights in rem or lease on →immovable property located in Macedonia (art 69 PILA).

The Macedonian PILA provides that the defendant’s domicile (→Domicile, habitual residence and establishment) is the basic →connecting factor for determining the international jurisdiction of Macedonian courts (actor sequitur forum rei). Articles 52 and 53 PILA provide that Macedonian courts have general jurisdiction where a defendant who is a natural person is domiciled in Macedonia, whereas if the defendant is a legal person, the location of its seat is the determining factor. Jurisdiction of the Macedonian court is assessed on the grounds of facts existing at the time of filing the lawsuit (art 94 PILA).

Prorogation of a jurisdiction of a foreign court by the parties is allowed if (i) at least one of the parties is a foreign national or a legal person with its seat abroad, and (ii) the dispute does not fall within exclusive jurisdiction of Macedonian courts (art 56(1) PILA). However, the parties cannot prorogate jurisdiction of a foreign court in family law disputes and for disputes arising from consumer relationships or insurance relationships, if the consumer or the insured person, who is a natural person, has permanent residence in Macedonia (arts 56(2) and (4) PILA). However, parties are permitted to agree to the jurisdiction of a Macedonian court provided at least one of them is a Macedonian national or a legal person with its seat in Macedonia (art 56(3) PILA). Tacit prorogation of jurisdiction of Macedonian courts is addressed in art 57 of the Macedonian PILA, according to which a defendant is deemed to have accepted the jurisdiction of Macedonian courts when the defendant has submitted a response to the claim or pleads on the merits of the case without contesting the court’s jurisdiction.

Forum retorsionis is provided in art 55 PILA, according to which, where a foreign court has jurisdiction over a dispute against a Macedonian national according to criteria not contained in PILA, then such criteria will constitute the basis for extending the jurisdiction of the Macedonian courts over the disputes involving nationals of that foreign state as defendants in the proceedings.

In addition, a number of grounds for special jurisdiction are found in arts 58–91 Macedonian PILA. All these rules concern situations where the dispute has some substantial connection with Macedonia, and none of them extends the jurisdiction of Macedonian courts solely on the basis of the plaintiff’s →nationality, which in turn is sufficient to prevent cases of the exercise of exorbitant jurisdiction.

2. Obligations

Special jurisdiction is granted to Macedonian courts over disputes arising from contractual relations where obligations arose at the time the defendant was present in Macedonia (art 63 PILA), and also when the →place of performance of the →contractual obligations is located in Macedonia (art 61 PILA). In addition, Macedonian courts have jurisdiction over a dispute if any of defendant’s property is situated in Macedonian territory (forum patrimonii), although this forum provision requires two additional conditions to be met, ie (i) the plaintiff as a natural person or as a legal person must have its domicile or seat respectively in Macedonia, and (ii) the plaintiff must establish that it is probable that the judgment may be enforced over the property concerned (art 62(2) Macedonian PILA).

For non-contractual obligations, special jurisdiction of Macedonian courts is granted whenever the harmful event or the damaging consequence occurred in Macedonian territory. This rule also applies to disputes against an insurance company relating to compensation for →damages to third parties under the regulations on direct liability of the insurance p. 1company, as well as to disputes relating to claims under the right of recourse against a party liable upon recourse (art 60 PILA).

3. Property rights

Article 62(1) Macedonian PILA grants special jurisdiction to Macedonian courts in actions relating to movable property (→Property and proprietary rights), whenever the object of the dispute is situated in Macedonian territory at the time of the claim.

In actions relating to property rights on a ship or an aircraft, and in disputes relating to the lease of a ship or an aircraft, special jurisdiction of Macedonian courts is granted whenever the register containing the entry of the ship or the aircraft is maintained in Macedonia (art 71(1) PILA). In disputes over trespassing on a ship or an aircraft, Macedonian courts have special jurisdiction in two situations: (i) whenever the register containing the entry of the ship or the aircraft is maintained in Macedonia, (ii) or if the trespassing occurred in Macedonian territory (art 71(2) PILA).

4. Corporations

Macedonian courts have special jurisdiction over disputes against a legal person with its principal place of business abroad, if that person has a branch or other establishment in Macedonia, or if the person authorized to perform its business operations has its principal place of business in Macedonia, provided that such disputes involve business operations of that branch or establishment or of that person in Macedonian territory (art 64 PILA).

The Macedonian PILA provides exclusive jurisdiction of Macedonian courts in proceedings which relate to the incorporation, dissolution, and changes in the legal status of a company, another legal person, or an association of natural or legal persons, as well as in disputes relating to validity of decisions of their organs, provided such company, legal person or association has its seat in Macedonia (art 65 PILA).

International jurisdiction rules on insolvency matters (→Insolvency, jurisdiction and vis attractiva) are contained in arts 320 and 321 of the Macedonian Insolvency Act. Macedonian courts have exclusive jurisdiction whenever the insolvent debtor has its seat within Macedonia, and the claim covers the debtor’s entire estate, including assets located abroad (art 320(1) and (4) Macedonian Insolvency Act). Such exclusive jurisdiction exists even if the insolvent debtor had the preponderant part of its business activities abroad, where insolvency proceedings cannot be commenced in the country where such business activities were performed (art 320(3) Macedonian Insolvency Act). Article 321 Macedonian Insolvency Act confers international jurisdiction on insolvency of affiliates in Macedonia of insolvency debtors which do not have their seat in Macedonia.

5. Intellectual property

The provisions on contracts and non-contractual obligations in general of the PILA apply in the intellectual property field. The PILA provides for exclusive jurisdiction of Macedonian courts in proceedings concerning the application for registration and validity of industrial property rights registered in Macedonia (art 67 PILA).

6. Family matters

The Macedonian PILA contains several provisions on special jurisdiction regarding family matters. In matters of divorce and →marriage annulment, granting marriage licence to minors, paternity and maternity disputes, as well in disputes on custody and care of children by their parents (→Guardianship, custody and parental responsibility), then the nationality principle is stipulated as primary connecting factor provided all involved persons are nationals of the same state. In addition, these provisions contain several subsidiary connecting factors, such as the last common domicile of the spouses, or if one of the persons involved is both a Macedonian national and has domicile in Macedonia.

In disputes on →matrimonial property relations, special jurisdiction of Macedonian courts is granted where the property is located in Macedonia and the plaintiff is domiciled or resident in Macedonia at the time of commencing proceedings (art 72 PILA).

In →adoption matters, the Macedonian authorities have special jurisdiction if the adoptive parent, or one of the adoptive parents is a Macedonian national and is domiciled in Macedonia. The jurisdiction of the Macedonian authorities is exclusive if the adopted minor is a Macedonian national and is domiciled in Macedonia (art 87 PILA).

7. p. 1Succession

Macedonian courts have special jurisdiction in matters of →succession of a deceased Macedonian national or of a stateless person with regard to the movable property located in Macedonia. If the deceased is a foreign national, Macedonian courts are granted special jurisdiction with regard to movable property located Macedonia, unless the court of the state of which the deceased is a national has jurisdiction over such matters. In matters of succession, when the deceased possessed immovable property located in Macedonia, then Macedonian courts have exclusive jurisdiction (arts 84–86 PILA).

V. Basic principles of choice of law

1. General provisions

The first chapter of the Macedonian PILA, entitled General Provisions (arts 1–14), contains provisions that define its scope of application, the priority of international treaties, the method for gap filling, →public policy (ordre public),→renvoi, characterization (→Classification (characterization)), reference to the law of a state that consists of two or more legal systems, and a general provision on mandatory rules and exception clauses.

General provisions concerning the application of choice-of-law rules are contained in the first chapter of the Macedonian PILA. Article 3 PILA introduces the ‘escape clause’ (clause d’exception) into Macedonian private international law. According to this clause, the law determined by the Macedonian PILA will not apply in exceptional cases where it is evident from the circumstances of the case that there is no significant connection with that law, but there is a manifestly closer connection with the law of another state. Article 3(2) Macedonian PILA excludes application of the exception clause in situations where the parties have made a →choice of law. The Macedonian PILA is silent concerning →classification (characterization) to determine the conflict rule that should be applied. Scholarly doctrine and the jurisprudence are unanimous in holding that the qualification of choice-of-law rules should be made in accordance with Macedonian Law, ie in accordance with the →lex fori. Article 9 of the Macedonian PILA provides that the foreign law should be applied according to its sense and in respecting the meaning of the legal terms it contains. Renvoi is permitted under art 6 Macedonian PILA, which provides that, where the provisions of the PILA determine foreign law as applicable, the conflict rules of that law will be taken into account (art 6(1) PILA). The second paragraph of this rule provides that if the foreign conflict rules refer back to the law of Macedonia, then the Macedonian law will be applied without regard to its conflict rules. There is no provision for the situation when the conflict rules of a foreign law point to a law of a third country. The prevailing view in scholarly doctrine is that in such a situation ‘renvoi in one step’ should be applied, and the court should apply the substantive law of the country designated by the choice-of-law rules of the law referred to by the Macedonian PILA. Application of renvoi is excluded in those matters where the parties are allowed to agree on the applicable law (art 6(3) Macedonian PILA), namely in the field of obligations. Public policy is regulated by art 5 Macedonian PILA, which provides that the law of a foreign state determined as applicable will not apply if the effects of its application would be contrary to the public policy of Macedonia. The Macedonian PILA abandoned the provision on fraus legis (see reference above). Regarding a state with more than one legal system, determination of which legal system is applicable is initially made by direct reference of the conflict rules of the PILA, and if they indicate no particular legal system in the state, then the applicable legal system will be determined by the legislation of that state. Finally, if the applicable legal system cannot be determined by the first two alternatives, the legal system of the state with the closest connection to the legal relation will be applied (art 10 Macedonian PILA). Article 14 PILA allows for application of the overriding mandatory rules (→Overriding mandatory provisions) of Macedonia, which apply irrespective of conflict rules. The Macedonian PILA is silent on the possibility of applying the mandatory rules of a third country.

Specific conflict rules are contained in Chapter 2 (arts 15–51) Macedonian PILA. Most of them are bilateral, and they determine the applicable law on the basis of criteria selected in advance, without taking into account the contents of the designated governing law.

2. p. 1Obligations

Article 21 of the Macedonian PILA provides for →party autonomy as the primary →connecting factor for contracts. The choice of the parties may be made either expressly or clearly demonstrated by the terms of the contract or the circumstances of the case. →Depeçage is permitted, and by their choice the parties may select the law applicable to the entire or to only part of the contract (art 21 Macedonian PILA). Absent a choice of applicable law, the contract will be governed by the law of the country with the closest connection.

It is presumed that the contract is most closely connected with the country where the party who is to effect the characteristic performance of the contract has domicile (→Domicile, habitual residence and establishment) at the time of contract conclusion, or in the case of a legal person its principal place of business, unless particular circumstances refer to another law. Contracts for the carriage of goods (→Carriage of goods by road, rail and inland waterways; →Carriage of goods by sea) are presumed to be most closely connected with the country in which the carrier as a legal person has its head office or as a natural person their domicile, provided that the place of loading or discharge or the consignor’s domicile is also located in that country (art 22 Macedonian PILA). For employment contracts, absent choice by the parties, the secondary connecting factor is the place where the employee habitually carries out their work (art 24 Macedonian PILA; →Employment contracts, applicable law). With regard to →consumer contracts (art 25 Macedonian PILA), the secondary connecting factor is the consumer’s domicile, provided that one of the three additional alternative conditions is fulfilled, ie either (i) the contract was concluded as a result of offer or advertisement in that state and if the consumer has performed in that state the acts necessary for conclusion of the contract, or (ii) the consumer’s other contracting party or its agent obtained the consumer’s order in that state, or (iii) the contract of sale was concluded in another state, whereby if the consumer placed the order in another state, the transit must have been organized by the seller with the aim of promoting contract conclusion.

Choice of law is excluded for contracts referring to →immovable property, since they are exclusively governed by the law of the state where the immovable property is located (art 23 Macedonian PILA).

The 2010 Amendments to the Macedonian PILA introduced new rules for determining the applicable law for non-contractual obligations. All the new rules are aligned with solutions found in the Rome II Regulation. Article 33(1) Macedonian PILA includes the general conflict rule for non-contractual liability and requires application of the law of the country where the damage occurs (lex loci damni). There are special conflict rules for →unjust enrichment (restitution) (art 31 Macedonian PILA), negotorium gestio (art 32 Macedonian PILA), →culpa in contrahendo (art 32a Macedonian PILA), →products liability (art 33a Macedonian PILA), unfair competition and acts restricting free competition (art 33b Macedonian PILA), environmental damage (art 33c Macedonian PILA) and industrial action (art 33d Macedonian PILA). Choice of the applicable law by the parties is permitted, provided that the agreement is entered into after the event giving rise to the damage occurred, or where all the parties are pursuing a commercial activity, also by an agreement freely negotiated before the event giving rise to the damage occurred (art 33gj Macedonian PILA).

3. Property rights

Article 20 Macedonian PILA contains a general rule on the law applicable to immovable and movable property (→Property and proprietary rights), and two special rules concerning goods in transit and transport vehicles. The general rule is that title and other rights over immovable and movable property are governed by the law of the situs (art 20(1) Macedonian PILA). Both scholarly doctrine and jurisprudence are unanimous regarding the issues governed by the lex situs, ie (i) the classification of a right as a real right, (ii) the classification of a property as immovable or movable, (iii) whether a property can be the subject of real rights, (iv) the manner of acquisition, transfer, and termination of real rights, (v) the necessary publicity measures, scope, and content of authority conferred on the holder, (vi) the protection and hierarchy of real rights, (vii) possession, and (viii) the effects of real rights in relation to third parties. Goods in transit are governed by the law of the place of destination (art 20(2) Macedonian PILA). Transport vehicles are governed by the law of the state p. 1where the vehicles are entered into a register (art 20(3) Macedonian PILA). The predominant scholarly view is that the provision of art 20(3) Macedonian PILA refers only to vessels, aircraft and railway locomotives and rolling stock and not to road transport vehicles since there are no registers for them.

4. Corporations

Article 16 Macedonian PILA introduces a conflict rule for determining the legal status of a legal person, whereby its legal status is governed by the law of the state of its →nationality (art 16(1) PILA). A legal person’s nationality is primarily determined by the place of its incorporation (art 16(2) PILA). However, if a legal person has its head office in a state other than that where it was incorporated, and if under the law of that other state it has the nationality of that state, then that legal person is regarded as having the nationality of that other state (art 16(3) PILA). Thus, the criterion of real seat prevails over the place of incorporation.

5. Intellectual property

The PILA contains a conflict rule only for non-contractual obligation arising from infringement of an intellectual property right. Under art 33g of the PILA, the law of the country for which the protection is claimed is applicable (lex loci protectionis), and that applicable law cannot be derogated from by agreement of the parties. This provision is aligned with art 8 Rome II Regulation.

6. Family matters

Nationality is the principal connecting factor in family matters under the Macedonian PILA. Capacity to marry is governed by the national law of each spouse at the time of →marriage (art 38(1) Macedonian PILA). However, if the marriage is to be celebrated in Macedonia, the following three impediments provided by Macedonian substantive family law must be observed: (i) existence of an earlier marriage; (ii) consanguinity; and (iii) mental incapacity (art 38(2) Macedonian PILA). The form of marriage is governed by the lex loci celebrationis (art 39 Macedonian PILA). The invalidity of marriage is governed by any of the laws under which the marriage was concluded, according to art 38 Macedonian PILA.

In divorce matters, the common lex patriae of the spouses at the time of filing is still the primary conflict rule (art 41(1) Macedonian PILA). Where the spouses have different nationalities, the law of the spouses’ last common domicile is applied, or if there has never been a common domicile, the lex fori applies as last resort (art 41(2) Macedonian PILA). As an exception, in situations where the spouses have different nationalities but one of them is a Macedonian national, the divorce must be governed by Macedonian substantive law (art 41(3) Macedonian PILA; →divorce and personal separation).

The personal and property effects of marriage are primarily governed by the common national law of the spouses. There are three subsidiary connecting factors that apply as alternatives. First, if the spouses have no common nationality, the law of the country where they have common domicile applies. Second, if the spouses have neither common citizenship nor common domicile, then the law of the state of their last common domicile applies. Finally, if the applicable law cannot be determined by virtue of the previous three rules, then Macedonian substantive law will apply (art 42 Macedonian PILA).

The spouses may choose the law applicable to their contractual relations, ie marital contracts and other contracts concluded between the spouses. The choice is limited to either (i) the law of the state of at least one of the spouses’ nationality, or (ii) the law of the state where at least one of the spouses is domiciled, and (iii) for real property, the law of the state where the property is located (art 43 Macedonian PILA).

The Macedonian PILA contains a special conflict rule for pecuniary relations of persons living in cohabitation. It determines the common nationality of cohabitants as the primary connecting factor, whereby if they are nationals of different countries, their common domicile is used secondarily (art 45(1) and (2) Macedonian PILA). The same conflict rules apply to cohabitation agreements (art 45(3) Macedonian PILA).

Article 46 Macedonian PILA provides several connecting factors for determining the law applicable to relations between parents and children, including the obligation of support. The common lex nationalis of the parents and the children is the primary connecting factor (art 46(1) PILA). But if the parents and the child are nationals of different states, the law of the state of their common domicile applies (art 46(2) PILA). The third alternative connecting factor p. 1differs from that contained in the 1982 Federal Act on Resolution of Conflict of Laws with other Countries in Certain Relations. This rule is in favour of the child in that if the parents and the child have no common nationality or domicile, then the lex nationalis of the child applies.

Article 47 of the PILA provides for lex nationalis of the child as connecting factor for recognition, determination or contestation of paternity or maternity.

Maintenance obligation between blood relatives, with the exception of parents and children, or the obligation of maintenance of relatives by affinity is governed by the law of the state of which the relative who is claimed to be liable for the maintenance is a national (art 48 Macedonian PILA).

Legitimization is governed by the law of the state of which the parents are nationals, but if the parents have no common nationality, then the law of the state of either of the parents under which the legitimization is claimed would be valid. The child’s consent to the legitimization, or the consent of another person or of a state authority will be governed by the law of the state of which the child is a national (art 49 Macedonian PILA).

Article 50 Macedonian PILA governs the law applicable to the conditions for the creation and termination of an adoption. The primary connecting factor is the common lex nationalis of the adoptive parent and the adopted child (art 50(1) PILA). If they are nationals of different states, the laws of those states apply on a cumulative basis (art 50(2) PILA). If a couple is adopting a child, in addition to the law of the state of the adopted child’s nationality, the adoption is also governed by the laws of each state of which the spouses are nationals (art 50(3) PILA). The form of adoption is governed by the law of the state where the adoption takes place (art 50(4) PILA).

7. Succession

The law governing a →succession mortis causa is governed by the national law of the deceased at the time of death (art 35 Macedonian PILA). This rule comprises all substantive issues of succession regardless of whether it is testate or intestate. However, there are two specific questions that are governed by separate choice-of-law rules. First, the capacity of the testator to make a will is governed by the law of the state of the testator’s nationality at the time when the will was made (art 36 Macedonian PILA). Second, the will is valid with respect to form if the form is valid under one of the following laws: (i) the law of the place where the will was made; (ii) the law of the state of which the testator was a national, either at the time of making the will or at the time of death; (iii) the law of the testator’s domicile, either at the time of making the will or at the time of death; (iv) the law of the testator’s residence, either at the time of making the will or at the time of death; (v) the law of Macedonia; or (vi) with respect to →immovable property, the law of the place where the immovable property is located. The revocation of a will is valid regarding form if it is valid under any of the laws under which a will could be validly made (art 37(2) Macedonian PILA).

VI. Recognition and enforcement of judgments

The PILA provides for grounds for non-recognition, for recognition and enforcement of foreign judgments, as well as for the exequatur procedure (Chapter 4 (arts 99–116)) of Macedonian PILA. The PILA abandoned the →reciprocity requirement provided for in the ZRSZ. The grounds for non-recognition can be divided into two groups. The first group is composed of the grounds which are examined by the recognizing court on its own motion (ex officio), ie (i) whether the petitioner supplies the original or authenticated copy of the foreign judgment, the certificate of a competent foreign court or another authority on finality or enforceability of such judgment under the law of the state in which the judgment was rendered, as well as authenticated translations (arts 101 and 102 Macedonian PILA), (ii) whether the courts or other authorities of Macedonia have exclusive jurisdiction over the matters concerned by the judgment (art 104 Macedonian PILA), (iii) whether there is an earlier final judgment in the same subject matter and between the same parties rendered or recognized in the Republic of Macedonia (art 106(1) Macedonian PILA), (iv) whether there are pending proceedings between the same parties regarding the same cause of action before a Macedonian court (art 106(2) Macedonian PILA), and (v) whether the foreign judgment is incompatible with →public policy (ordre public) (art 107 Macedonian PILA). The grounds for non-recognition which are examined at the request of the parties are (i) whether p. 1there was proper (due) notification (whether the defaulting defendant was duly notified) of the proceedings to the defaulting defendant (art 103 Macedonian PILA), (ii) whether the jurisdiction of the foreign court was based exclusively on the nationality of the claimant or by ignoring an agreement on jurisdiction of a Macedonian court (art 105 Macedonian PILA).

The PILA provides for several exceptions concerning recognition and enforcement of foreign judgments in matters of →personal status. First, if Macedonian law should have been applied under the Macedonian PILA in matters of the personal status of a Macedonian national, then the foreign judgment will be recognized despite the fact that it was rendered by application of a foreign law, provided the judgment does not substantially differ from the solution under Macedonian law (art 108 PILA). Second, a foreign judgment referring to a personal status of a national of the state in which it was rendered will be recognized in Macedonia without examination of fulfilment of the conditions provided in arts 104 and 107 Macedonian PILA (exclusive jurisdiction, public policy, non-existence of an earlier final judgment between the same parties on the same subject matter and whether the jurisdiction of the foreign court was based exclusively on the nationality of the claimant or by ignoring of the agreement on jurisdiction of court of the Republic of Macedonia) (art 109 Macedonian PILA). Third, a foreign judgment referring to a personal status of a foreigner who is not a national of the state in which it was rendered will only be, such judgment shall be recognized only if it fulfils the conditions for recognition in the state of which the foreigner is a national (art 110 Macedonian PILA).

VII. Arbitration

The Macedonian Law on International commercial arbitration was adopted in 2007 (Zakon za megjunarodnata trgovska arbitrazha, Official Gazette of Republic of Macedonia, No 39/2006). It is based 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). Article 28 Macedonian Law on International commercial arbitration refers to the law applicable by the tribunal to the substantive merits whereby first the rules of law chosen by the parties will apply, and absent a choice, the law will apply of the state with which the dispute subject matter is most closely connected.

Macedonia is party to the main multilateral conventions on arbitration, including the New York Convention on the recognition and enforcement of foreign arbitral awards and the European Arbitration Convention. Macedonia has made the declaration on restricting the application of the New York Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of Macedonia, under the basis of art I(3) of the New York Convention.

Toni Deskoski

Literature

  • Davor Babić and Christa Jessel Holst, Međunarodno privatno pravo-zbirka unutarnjih, europskih i međunarodnih propisa (1st edn, Narodne novine 2011);

  • Mihajlo Dika, Gašo Knežević and Srđan Stojanović, Komentar Zakona o Međunarodnom privatnom i procesnom pravu (1st edn, Nomos 1991);

  • Toni Deskoski, ‘The Concept of Mandatory Rules – Challenge for the Macedonian Private International Law in the Third Millenium’ [2003] Collected Papers from the First Private International Law Conference – Twenty Years of the Private International Law Code 119;

  • Toni Deskoski, ‘The New Macedonian Private International Law Act of 2007’ (2008) 10 YbPIL 441;

  • Toni Deskoski and Vangel Dokovski, ‘Latest developments of Macedonian Private International Law’ [2011] Collected Papers from the IXth Private International Law Conference – Recent Trends in European Private International Law – Challenges for the National Legislations of the South East European Countries 1;

  • Todor Djunov Medjunarodno privatno pravo (Zumpres 1995);

  • Poliksena Gavroska and Toni Deskoski, Medjunarodno privatno pravo (1st edn, Praven fakultet ‘Justinijan Prvi2011);

  • Bertold Eisner, Medjunarodno privatno pravo (Školska knjiga Book I 1953, Book II 1956);

  • Poliksena Gavroska, Medjunarodno privatno pravo – Sudir na zakonite (Zumpres 1995);

  • Miroslava Geč-Korošec, Mednarodno zasebno pravo-Splošni del (Časopsini zavod Uradni list Republike Slovenije 1994);

  • Miroslava Geč-Korošec, Mednarodno zasebno pravo-Posebni del (Uradni list Republike Slovenije 2002);

  • Maja Stanivuković and Mirko Živković, Međunarodno privatno pravo-Opšti deo (4th edn, Službeni glasnik 2010);

  • Zlatan Meškić, ‘Integracija Evropskog kolizionog prava u nacionalne kodifikacije Međunarodnog privatnog prava u regionu- nalozi primarnog prava p. 1EU’ [2011] Collected Papers from the IXth Private International Law Conference – Recent Trends in European Private International Law – Challenges for the National Legislations of the South East European Countries 99;

  • Maja Stanivuković and Petar Đundić, Međunarodno privatno pravo-Posebni deo (1st edn, Pravni fakultet u Novom Sadu 2008);

  • Mirko Živković, Poveravanje dece na čuvanje i vaspitanje u međunarodnom privatnom pravu (Institut za društvena i pravna ispitivanja 1991);

  • Tibor Varadi and others, Međunarodno privatno pravo (11th edn, Službeni glasnik 2010).