CC BY
56
Евразийский Союз Ученых (ЕСУ) # 5 (50), 2018
63
ЮРИДИЧЕСКИЕ НАУКИ
_INTERNATIONAL LEASING CONTRACT_
Asist.univ.Drd. TOMESCU Raluca16 Universitatea Andrei Saguna Constanta
In the present study we analyzed the leasing operations, in general, and the international leasing contract in particular, both from the perspective of the theoretical concepts offered by the Romanian doctrine, but also under the aspects enshrined in the international private law. Undoubtedly the doctrine confirms the priority role that the circuit of material values has on the progress and economic development of modern society. Under these auspices we find the emergence and development of leasing operations worldwide. Leasing alongside the factoring, general contractor agreement/ construction-assembly contract, international travel contract, is part of the complex international contract group. Of the legal realities of international trade, leasing proved to be the most important means of financing investment in goods and services.
Key words: leasing, international contract, international law
Not being a creation of the modern world, the main instrument of economic development has been and is constituted by capital investments which, through the creation of new, more efficient structures, in line with the strategic options imposed by an ever-evolving market economy, have led to the emergence of new forms of classical contracts.
Considering that all the expenditures made for the construction of new objectives, the development or upgrading of existing ones, the investments for development represent a certain expense for a future containing the elements of uncertainty (investors assuming the risk of diminishing the demand for finished products, increasing the cost of the raw material, the emergence of better products, etc.).
From this perspective, it is recognized that investing strategies have a particularly important role because all other activities depend on investment and, above all, on the policy of investment decisions. This raises the question of choosing an optimal way of investing own or attracted capital that best fits the objectives and expectations of the investor, the aim being to use that type of investment that would ensure an optimal ratio between profitability and risk.
The analysis of leasing trends is closely linked to the revolution of industrial technologies, fiscal and monetary policies as well as to the overall development of the world economy. All these factors have experienced a specific development at the level of each state, which is why the leasing market has peculiarities by country, regions or continents.
The first operations that prefigured the lease in its current form emerged in the US towards the end of the nineteenth century. Thus, in 1877, companies offering telephone services offered their customers the possibility of hiring telephone equipment, and this contract would be called "lease".
The founder of the first modern leasing company is considered to be Henry Schoenfeld, who founded the US Leasing Corporation (currently US Leasing International Inc.) in 1952.
The leasing operations developed rapidly, having an ascending trend, due to the benefits it brought to the parties involved, but also due to fiscal loosening for these types of investments, so that at the end of the 50's the leasing was sufficiently developed to attract the attention of businessmen from European countries and beyond17.
In 1983, the world's first congress on leasing operations was held in Hong Kong. At the end of 2002, there were seven multinational leasing associations on the globe18. The most important objective of these international organizations and the international meetings on leasing is the unification of regulations on leasing operations. In this respect, the UNIDROIT project on international financial leasing was developed19.
In Europe, leasing penetrated later, first in England, and then dispersed in Western countries with a rapidly growing market economy (Germany, France, the Netherlands, Belgium). In France, leasing in its incipient form appears under the name of " credit-bail". Neither Eastern European countries have lagged behind in this chapter, but with some delay as compared to the highly developed countries, they have integrated leases into their judicial system.
In the UK, where the leasing industry is the most developed in Europe, four leasing associations have been created. There are also three such associations in Germany, and three in Australia as well. In most countries, however, only one national leasing association operates.
In 1972, the European Lease Societies, LEASEUROPE, which controls about 80% of the European leasing industry, was established. It reached until December 25, 1993 to include 25 affiliated countries
16 Asistent universitär, Universitatea "Andrei Saguna" Constanta, PhD studennt, Universitatea Nicolae Titulescu, , Bucuresti, Calea Vacaresti,185 040051, Romania, Tel.:+4073101.86.90, Romania, e-mail: ratomescu@gmail.com.
17 E. Chandraiah, Evaluation of Lease Financing, Concept Publishing Company, New Delhi, 2004, p.42
18 www.leseurope.org/pages/statistics
19 The draft was elaborated since 1981 under the name „Preliminary draft uniform rules on the suigeneris from of leasing transaction as adopted by the UNIDROIT Study Group on the leasing contract".
and 1054 member institutions. That year, France had the largest number of leasing companies (103 in movable leasing and 124 in real estate leasing), but on the other hand, there was no company specialized in both types of leasing.
In the former socialist countries, leasing was first used and regulated in Czechoslovakia and Hungary in the 1980s and then used in countries like Poland and Bulgaria.
In 1994, the first leasing company in Romania was established and the first legislative regulations were developed in 1995. In 1997, due to the rapid development of the leasing activities, the first specific regulation regarding the leasing operations - GD 51/199720, being adopted as such in 1998.
Today in Romania there is also the "Association of Financial Companies - ALB Romania", a non-profit organization, which has as its stated objective the establishment of a better business environment and a professional framework for the financial services market in Romania. The Association was established in March 2004 and is open to all financial and operational leasing companies as well as to other non-bank financial services as defined by the legislation in force. The purpose of this organization is mainly to harmonize national rules and legislation with EU standards.
Leasing is, in its essence, is a way of fully financing of consumers who are natural or legal persons who want to acquire movable or immovable goods with a long service life but who do not have immediate financial possibilities or do not consider the investment necessary. This type of financing helps those who cannot or do not want to access loans from banks by encumbering the real or mobile assets by establishment of mortgages or pledges21. It has proved to be the most cost-effective, highly efficient, financing means of productive investment, providing added safety to those who do not have enough capital.
The legal "triangular" leasing operation involves the existence of three parts that interact legally: the seller of the good (the supplier), the buyer of the good (the financier / leassor, usually a leasing company) and the user (the lessee) 22. The leasing operation is therefore a tripartite transaction, involving a producer or supplier of goods, a financier / lessor namely the leasing company, and a lessee / user, whether it is a natural person or a legal person.
The presence in a leasing contract of a foreign element that makes it susceptible to coming into contact with several legal systems will determine its international character.
But not any foreign element inserted in a domestic legal relationship will change it into a report of international trade law, but only those elements that will be of major importance for that report23.
The extraneous (foreign) elements of a lease can be considered as follows24:
• citizenship, namely the nationality of at least one of the parties to the legal report, is abroad, also the domicile of the natural person, namely the registered office for legal entities, when in another country than the one in which it concludes the contract, will become a foreign element;
• the object of the legal relationship, when it is on the territory of another state;
• The place where the generative, modifying or extinguishing fact of the legal relation occurs, namely the place where the legal act was concluded, the place where the legal act was executed;
• Place of the litigation.
The doctrine supported the view that when the conclusion of a contract does not imply the transfer of goods from one country to another, the objective fact of the domicile / registered office of the parties in different states will be taken as a criterion of internationality; and if, on the contrary, the contract involves the transfer of assets or values from one country to another, that objective circumstance is the criterion for determining the international character of the contract25.
In other opinions, on the contrary, it is argued that if the parties involved in the conclusion of a leasing contract are located in the same country, the contract is not international, even if the asset to which it refers is "international asset"26. We are not in the presence of an international contract even if the credit institution and the user are located in the same country and the supplier is established in another country. In this case only the sale is international.
International conventions use distinct solutions, depending on the nature of the contract, for the definition of internationality, most often the registered office of the contracting parties being a main but not decisive criterion, adding to this other complementary elements, depending on the specificity of the contract.
20 ORDINANCE no.51 of August 28, 1997 regarding the leasing operations and the leasing companies, published in the Official Gazette no. 224/August 30, 1997; approved and amended by Law 90/1998 for the approval of Government Ordinance no.51 / 1997 on leasing operations and leasing companies published in the Official Gazette of Romania, Part I, no.170 of April 30, 1998.
21 D.Clocotici, Ghe.Gheorghiu, Operatiunile de leasing (Leasing operations), Lumina Lex Publishig House 2000, p.25
22 G. Garlisteanu, R. Bischin, op. cit.
23 I.Dogaru, C.Mocanu, T.R.Popescu, M.Rusu, Principii si in-
stitutii in dreptul comertului international (Principles and in-
stitutions of international trade law), Scrisul Romanesc Pub-
lishing House, Craiova, 1980, pag.30;
24 Ion P.Filipescu, A.I.Filipescu, Tratat de drept international privat (Treaty of private international law), Universul Juridic Publishing House, 2008, p.22
25 A\See T.R.. Popescu, Dreptul comerfului international (International trade law), 2nd edition, Ed. Didactica §i Pedagogica, Bucharest, 1983, p. 15.
26"International asset" is in practice, an asset moving (an aircraft, a ship, a barge) Francois Collart Dutilleul, Philippe Del-ebeque "Contrats civils et commerciaaux 43 ed Ed. Dalloz Paris 1998 pag. 693; T.R. Popescu, Dreptul Comertului International (International Trade Law) 1976 p. 375."
Participants in the international trade legal report will therefore be a matter of national law, belonging to the national legal order and a subject of international law, belonging to the international legal order. It is also the solution offered by the Ottawa Convention 1998 (Article 3 UNIDROIT).
By using the term of civil law, in the context mentioned, from a legal point of view, it is considered the person who participates individually or collectively in the civil legal relations, the holder of civil rights and obligations. These are divided into two main categories, namely: individuals and legal entities.
Therefore, when in the lease contract one of the parties is a foreign natural or legal person, then the lease will benefit from an element of extradition, which will turn it into a legal relationship of international law.
In general, the leasing contract is considered international if the register office of the financier / lessor or the user / lessee is in different states.
In the context of international commercial law relations, the parties will be recognized as having the status of legal equality, irrespective of their status, individual or legal person, and the state's position towards the foreign partner will also respect this principle27.
Under the law applicable to the contract, if in the case of the internal leasing contract it is governed by the national law of the parties, instead for the international leasing contract there is no valid universal law to apply automatically to international trade, the establishment of the law governing the contract being the responsibility of the parties or, as the case may be, of the court.
Naturally, contract law is inherent in any type of contract, whether it is an internal or international contract, because only it can validate it and allow the contract to produce legal effects.
Under the lex voluntatis rule, the substantive conditions are subject to the law designated by the contracting parties. The normal conduct of international trade relations, however, calls for the uniformity of conflicting rules because conflicting rules of different legal systems have different solutions for cases where the parties have not chosen lex contractus.
Thus, lex voluntatis will best meet the needs of international trade by allowing the contracting parties to choose as lex contractus the material right of that coun-
try best suited to the specificity of the operation in question, to the interests of the parties and which is known to the parties.
The law of the contract is chosen by the parties at the conclusion of the contract, but it can also be made before the arbitration or the court of law until the debates become substantive28.
Whether it is established by the contracting parties or established by the courts under subsidiary but mandatory conflicting rules, lex contractus governs the terms of validity and effects of the contract, the performance of the obligations and the liability for non-execution or for their late or inadequate performance.
Where the leasing operation is to materialize by concluding a lease in which the parties belong to different States, the substantive conditions for its validity, they shall not be applied with an exclusive character the law of the contract, some of the elements being subject to other laws29.
Thus, for the ability to contract, regardless of the place of the transaction, it is subject to personal law, which may be lex domicilii or lex patriae. By exception, however, in United Kingdom or United States legislation, the ability to contract is subject to the law of the contract. In national legislation, the ability to contract is established by Article 1180 of the Civil Code.
The consent of the parties, in terms of the relationship between the real will and the declared one, the validity of the offer and its acceptance, will be governed by the law of the contract, but the legal literature supports the view that, by exception, the vices of consent must be subject to the personal law of the parties30.
The object of the contract will be governed by the law of the place where the property is located, its legal regime being governed by lex rei sitae.
In order to determine the conclusion of the contract, it must be, to be legal and moral (Article1236, Civil Code), which is subject to lex contractus.
In terms of the form, the doctrine has stated that the form of the international contract will be determined primarily by the law that carries the fund, but when pursuing the protection of interests of the parties, the rule locus regit actum will apply. Although the international trend promotes the principle of consensual-ism, as a rule, the choice of the form of the contract being left to the discretion of the parties, the national
27 I.Macovei, Tratat de drept al comertului international (International Trade Law, Treaty), Universul Juridic Publishing House, 2014, p.14
28The High Court of Cassation and Justice decided that in the
case in which the legal relationship before the Court contains
a foreign element, by the parties of the legal relationship and the court jurisdiction to settle the case is the Romanian one, according to Article 149 of Law no. 105/1992 (Article 1065 NCCP), where the seat of the defendant is situated, Romanian legal entity, it is this court the one determining the applicable law, the material law with which the relation presents connections by its foreign element. The High Court observed that it is the obligation of the court seized to determine the law applicable to a conflict between the law of the country of the court seized for the settlement of litigation (lex fori) and for-
eign law with which the relation relates by means of its foreign element, the court not being bound by the law indicated by the party. In the present case, the High Court ruled that in the case of the assignment, as the legal relation was qualified, Article 120 of the Law no. 105/1992 provides that the law of the claim assigned applies unless the parties have agreed otherwise, the obligations between the assignor and assignee are subject to the law which applies to the legal relationship on which the assignment was based. (Decision no. 896 of March 5, 2013, ruled in appeal by the 2nd Civil Department of the High Court of Cassation and Justice, having as object claims)
29 J.P.Niboyet, La theorie de l'autonomie de la volonte, Paris, 1927, pag.18
30 H.Batiffol, op.cit., pag.248; A.Toubiana, Le domaine de loi de contract en droit international prive, Ed.Dalloz, Paris, 1972, pag.19
66
Евразийский Союз Ученых (ЕСУ) #5 (50), 2018
rules of the leasing operations require the conclusion of the lease contract in writing31.
The language of the contract is to be chosen by agreement of the parties, which can be an international language, one of the languages of the contracting parties or the language of both parties, both of the supplier / the lessor and the user / lessee, to whom it is possible to add an international language.
Whether or not the leasing contract includes a foreign element, the leasing operations will materialize by concluding a leasing contract whereby a party called the lessor / financier grants for a determined period the right to use a thing whose owner is, to the other, called the user / lessee, at the latter's request, against a periodic payment called the leasing instalment, and at the end of the leasing period the lessor / financier undertakes to respect the user's right to choose to buy the asset, extend the lease or terminate the contract.
Another issue that is required to be solved when dealing with international contracts concerns conflict-of-law regulation.
In this regard, national regulations differ. Some authors are in favour of the law of placing the asset that is that of the lessee and that of the place of enforcement, considering that the characteristic performance of the contract is the lease32.
Other authors, however, consider that the characteristic performance of the leasing operation is that of financing ensured by the lender. This would allow for the application of the law at the registered office of the financing institution as lex causae. The solution appears closer to the very essence of leasing, which is, above all, a financing technique.
From the point of view of the facts presented, though there are major, sometimes daunting, discrepancies between theory and practice, it remains the opinion that the financial, or operational leasing option confers on the parties involved in these operations, indisputable advantages compared to other methods of financing, purchase or rental.
МЕСТО И РОЛЬ МЕЖДУНАРОДНОГО ПРАВА В УСТАНОВЛЕНИИ РЕЖИМА ВОЗДУШНОГО ПРОСТРАНСТВА РОССИЙСКОЙ ФЕДЕРАЦИИ
Джавадова Алиса Сираджеддиновна
Кандидат юридических наук Заведующий кафедрой правового обеспечения внешнеэкономической деятельности Санкт-Петербургский имени В.Б.Бобкова филиал
Javadova Alisa Sirajedgeddinovna
Candidate of Legal Sciences Legal support of foreign economic activity St.Petersburg branch named after V.B. Bobkov
АННОТАЦИЯ: В статье исследуется влияние международного права на установление правового режима воздушного пространства России. Проанализированы основные нормативно - правовые акты Российской Федерации, участвующие в формировании этого режима.
Ключевые слова: суверенное и международное воздушное пространство, правовой режим, Конституция РФ, международное и национальное право.
ANNOTATION: In the article the influence of international law on the establishment of the legal regime of the airspace of Russia is investigated. The main regulatory legal acts of the Russia Federation participating in the formation of this regime are analyzed.
Keywords: sovereign and international airspace, legal regime, the Constitution of the Russian Federation, international and national law.
В настоящее время большинство ученых признает наличие «двух самостоятельных систем международного и внутригосударственного права , которые, тесно взаимодействуя и соприкасаясь друг с другом, должны стремиться к взаимной сбаланси-рованности»[1]. Существует много способов внедрения международно-правовых в национальное права, которые используются в практике в виде им-плементации, инкорпорации, отсылки, рецепции, трансформации и прочее. Это способы получили название «способов согласования международного и внутригосударственного права».
Место и роль международного права в общей российской правовой системе определяется ст.15 Конституции РФ, в соответствии с которой «общепризнанные принципы и нормы международного права и международные договоры РФ являются составной частью ее правовой системы. Если международным договором РФ установлены иные правила, чем предусмотрены законом, то применяются правила международного договора». В этих конституционных установлениях мы видим, что в национальную правовую систему Конституция РФ включает только те договоры, к которым Россия
31 Article 7 of the Government Ordinance no. 51/1997 of Au-
gust 28, 1997 on the leasing operations and the leasing companies, with subsequent amendments and completions.
32 C. Gavalda, Jurisclasseur International Dalloz 1985.
