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54Abdukodirov Abdurauf,
Lecturer of University of World Economy and Diplomacy ORCID: 0000-0002-6189-1287 E-mail: mustread@mail.ru
THE CONCEPTS OF NATIONALITY AND PERSONAL LAW OF A LEGAL ENTITY AS A LEGAL CATEGORY
Abstract: This article examines two important concepts that show the relationship of a legal entity with the state - the concept of nationality and personal law, based on the scientific views of Uzbek and foreign scholars in the field of private international law and acts of foreign states. The article also explores the relationship between the nationality and personal law of legal entity, whether they are the same or different concepts. In particular, according to some scholars, the notion of nationality is used insufficiently in private international law or is considered synonymous with the concept of belonging to a particular state. Nationality is reflected in the legislation of some countries on private international law. Synonyms for the concept of nationality or personal law are "controlling law", "applicable law", "legal capacity", "civil legal capacity" in the Bustamante Code, "organizational status", and their reflection in the legislation and impact on the relationship with the legal entity are discussed. This is because the essence of the concepts of nationality and personal law lies in the question of which state a legal entity actually belongs to and which state's law serves as its personal law.
Keywords: nationality, personal law, personal status, lex societatis, governing law, applicable law, private law, legal capacity, belonging to a particular state.
Legal entities as a subject of foreign economic activity enter into various district contractual relations. At the same time, there are issues in the international area that are not related to the economic activities of legal entities, such as the requirement for the name of the legal entity, the transfer, reorganization and liquidation of the legal entity, and issues related to succession. Issues relating to investment, taxation, diplomatic protection arising from public legal relations are also reflected in the activities of the legal entity to some extent.
These issues do not cause legal problems for the legal entity if it operates in the state of its establishment, and there is no need to apply foreign law to it. However, today's economic development requires legal entities to move from the jurisdiction of one state to the jurisdiction of another state; in other words, the desire of legal entities to expand their capital is confronted with the jurisdiction of other states. After all, each host state decides by its own internal laws whether a foreign legal entity has the status of a legal entity and whether it is granted foreign status in general [16, P.39-40].
As a result, it raises the question of which state the legal entity actually belongs to and which state's law serves as its personal law. In private international law, this situation is characterized by two terms: the
"nationality" of the legal entity and its personal law (lex societatis). Unfortunately, to this day, there is no unique conceptual view or international agreement on the application of these two terms.
A.V. Asoskov considers the term nationality the result of an attempt to link a legal entity with the state politically [1, P. 12]. Because, in matters in which nationality (taxes, investment) is raised, the state has both political and legal interests. However, in order to avoid misunderstandings, some scholars, including M.R. Suleymanov, propose rejecting the use of the term "nationality" in relation to legal entities, as "nationality" is used for individuals. Instead, they suggest the use of the term "state ownership of a legal entity"[14, P.176]. In both cases, the content means that the legal entity is related to the legal system of a particular state.
The legislation of foreign countries concerning the nationality and personal law of a legal entity also shows that the doctrine also has synonyms for the terms "personal law" and "personal status", which are widely used, such as "legal capacity" in Turkey [21, Article9], "governing law" in Estonia [22, Article 15], "applicable law" in Italy [23, Article 25], Belgium[24, Article 110], Bulgaria [25, Article 58], "legal capacity" in Azerbaijan[26, Article 13], Georgia [27, Article 24], South Korea[28, Article
29], Macedonia [29, Article 16], "civil legal capacity" in the Bustamante Code [30, Artilce33], "organizational status" in Romania [31, Article 41] and "private law" in Tunisia [32, Article 43]. In German law, there is the concept of "Gesellschafisstatu" [17, P.1194], which means corporate status, the personal law of a legal entity. However, the large number of synonyms for the term "private law" does not help to distinguish it from the nationality of a legal entity in the doctrine. Nor does it give different classifications of "personal law".
Unfortunately, the lack of a unique opinion on the concept of nationality and the field in which it is applied hinders the development of a single scientific approach by scholars on the nationality of the legal entity and its personal law. An analysis of the literature on the nationality and personal law of a legal entity shows that opinions on this subject can be divided into three groups.
The first group of scholars considers that the nationality of the legal entity should serve to determine the personal law. Among them are E. Dolilina, A.O. Inshakova, Yu.M. Yumashev, M.M. Boguslavsky, and V.A. Baryshev. In particular, E. Dolilina notes that the nationality of a legal entity means that it belongs to a particular state, but she considers that the personal law of a legal entity is determined by its nationality [18, P.90-91]. According to A.O. Inshakova, "the nationality" of a legal entity determines its personal law, and the content of the personal law depends on "the nationality" of the legal entity, which belongs to a particular state [16, P.39-40].
Yu. M. Yumashev said, "The problem of the nation of the company is, first of all, the problem of its legal status. Thus a company's "nationality" indicates which state's law is its "personal law" or "personal status". In other words, the "nation" problem comes to find the 'personal law' that governs a company's legal status" [8, P.16].
M.M. Boguslavsky [2, P.125], V.A. Baryshev [7, P.53], N.N. Kostyuk [5, P.42] and O.V. Kadysheva argue that the personal law of a legal entity is determined by its nationality. At the same time, N.N. Kostyuk always considers the law of the place where a legal entity is established to be its personal law, regardless of the composition of the property complex or the state to which the owners belong, thus contradicting the opinion that the personal law of a legal entity is determined by its nationality [5, P.40]. However, although the authors of this group referred to the nationality of a legal entity, they did not clearly indicate its scope, and they limited themselves to descriptions of the personal law of a legal entity. In particular, OV Kadysheva, in her scientific work, concluded that the personal law determines the
subject of law, the organizational and legal structure of a legal entity, and all internal relations [12, P.12].
However, the view that the personal law of a legal entity is determined by its nationality is reflected in the national legislation of some countries. In other words, the concept of "nationality" of a legal entity is not of a purely doctrinal nature. In particular, according to Article 41 of the Law of the Republic of Romania "On the regulation of international private law", the organizational status of a legal entity is regulated by its national law, the national right of a legal entity, i.e. its nationality, is determined by the location of the governing body specified in the statutory documents [31, Article 41]. This condition can be found in Article 16 of the Macedonian Law on Private International Law [32, Article 43].
In particular, this situation is observed in GK Dmitrieva's work, "an attachment formula widely used in resolving conflicts of laws related to the legal status of a foreign legal entity. It provides for the application of the law of the state to which a legal entity belongs. Since its belonging to the state is expressed in the term "nationality" of a legal entity, this formula sometimes sounds like "the law of the nationality of a legal entity" [4, P.128].
Other experts in the field of private international law (representatives of the second group) consider the nationality of a legal entity and its personal law as the same concepts. Representatives of the second group includes N.N.Voznesenskaya, L. Raape, S.Rammeloo, O.N. Sadikov, M.R.Suleymanov, B.B. Samarkhodjaevs.
For instance, N.N.Voznesenskaya notes that "the nationality of legal entities determines their legal status to a fuller extent, and their personal law - only in the scope of private law, and, in our opinion, it is obvious that these concepts are homogeneous, and it is inappropriate to classify them into different legal categories" [19, P.115]. Moreover, L. Raape emphasizes that "... as a rule, the nationality and personal status of a legal entity appropriate to each other" [15, P.193].
B.B.Samarkandkhodjaev states that a feature of subordination to the law and order of a particular state when a legal entity is a participant in foreign economic relations is considered the personal status and nationality of the legal entity in international private law [6, P.95]. Obviously, the author does not distinguish between the concepts of personal status and nationality.
According to S. Rammeloo, personal law and nationality of a legal entity are similar terms in private international law. Thus, the use of the term "nationality" in the legislation of many countries in relation to legal entities is becoming obsolete [11, P.28]. Contrary to the
opinion of Rammeloo, we should say that the concepts of "nationality" and personal law are in no way similar, and they are used in two different areas. Moreover, it is questionable whether the concept of "nationality" is directly applied to legal entities because the term "nationality" is used mainly in doctrine.
Also, O.N. Sadikov said that "a legal entity that is a participant in foreign economic relations is always bound to a particular state and its law. In international private law, this important aspect of the legal entity is called the nationality and personal law of the legal entity" [9, P.90]. However, none of these authors have sufficiently substantiated their opinion. Although the term "nationality" is not used in private legal relations with respect to legal entities, it is always a matter of public law. This fact alone is sufficient to refute the notion that "nationality" and "personal law" are the same.
According to M.R. Suleymanov, "nationality of a legal entity" means a conditional term that indicates that the company belongs to a particular state, or in other words, a term that defines the law of which state is considered as the personal law of the legal entity. However, M.R. Suleymanov defined the concept of personal law of a legal entity as "the right governing the internal and external relations of a legal entity" [14, P.176-177]. In this way, the author turns the concept of "nationality" into a criterion that serves to determine the personal law.
A well-known scholar in the field of international private law, L.A. Lunts notes that "the term "nationality" applied to legal entities means both the personal law of the organization and its belonging to the state" [10, P.41]. At the same time, L.A. Lunts acknowledges that the separation of the concepts of "nationality" and "personal law" has begun in Western countries since World War II. The scholar's view on the concepts of "nationality" and "personal law" is the result of the influence of the laws of the time in which he lived, that is, of the socialist state.
At the same time, the scholars of the third group (A.V. Asoskov, I.V. Getman-Pavlova, Yu.I. Monastyrskaya, R.T. Yusupova) distinguish between
the concepts of legal personality and individual law. According to A.V. Asoskov, the concept of "personal law of a legal entity" is used to address issues of private law and has a relationship only with the law regulation on conflict. "The category of legal entity nationality" has a wide range of applications, primarily related to public law institutions" [1, P.25].
According to I.V. Getman-Pavlova, "private law is the law of a particular state, a category of conflict law, which answers questions about the legal capacity of a legal entity. Nationality is the connection of a legal entity to a specific state, a material-legal category" [3, P.97].Yu.I. Monastyrskaya states that it is not required to determine the legal status of a legal entity-investor whether it belongs to a particular foreign state, i.e. the author concludes that the concepts of "nationality" and "legal status" are different legal categories [20, P.3].
R.T. Yusupova also believes that "nationality" is a term used in the actual legal relationship between a legal entity and the state, in other words, in relation to public law (taxation, investment, diplomatic protection) [13, P.9-10]. However, her definition of "personal law" is not successful, because, according to R.T. Yusupova, "the personal law of a legal entity as a principle of conflict reflects the applicable law to the legal status of a legal entity and does not create a legal relationship different from nationality" [13, P.8]. However, there is no need to argue that personal law has its own regulatory relationship.
Based on the above opinions on the nationality and personal law of the legal entity, the followings can be concluded:
The use of the concept of nationality of a legal entity in international private law relations should be avoided in both doctrine and legislation, as it is necessary to define and justify both the concept of personal law and the concept of nationality and their relationship.
"Nationality" is a term that is applied to legal entities only in public and international public law relations, and "personal law" is used only in private international law relations.
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