Мамаев А.А. Международная судебная юрисдикция по гражданским делам, связанным с недвижимым имуществом (нормы ГПК РФ и АПК РФ)

Аннотация: The article states that for legal systems of all states the establishment of exclusive international judicial jurisdiction is traditional for disputes where the subject is immovable property. By virtue of this principle, immovable property civil cases are subject to hearing in courts of the state in which territory this immovable property is located. The Russian law has also always stuck to this principle. The 1995 Arbitration Procedure Code of the Russian Federation for the first time has established a special rule by having assigned to the exclusive competence of the Russian arbitration courts only cases with a “foreign element” where buildings, constructions and land plots were the subject. The law-maker did not mention other objects of immovable property. Besides, only strongly defined categories of civil disputes were included in the exclusive jurisdiction of the Russian arbitration courts. The author believes that such position is not comprehensive. The 2002 Procedure Codes of the Russian Federation have eliminated this shortcoming. Rules of exclusive jurisdiction, including cases concerning the immovable property in Russia, obtained greater finalization. Today, the lawmaker does not limit the establishment of exclusive judicial jurisdiction in the case connected to the immovable property in Russia by a specific range of disputable material relations; therefore, all cases where such property is the subject, regardless of the dispute nature, are subject to hearing exclusively by the Russian courts. Both the CPC and the APC of the Russian Federation when determining the exclusive judicial jurisdiction in such cases set legal effect only to the fact of the property location (i.e. physical presence) in the territory of Russia, instead of to the fact of its state registration in the Russian Federation. In this connection we may specify that these rules preserved certain uncertainty related to the possibility of an establishing the exclusive jurisdiction of the Russian courts for disputes with a “foreign element” where the subjects are marine and air craft, inland vessels and space objects subject to the state registration. In civil cases with a “foreign element” connected to immovable property, as the basis for establishing exclusive judicial jurisdiction, it is expedient to set legal effect not only to the fact of “location” of property in the territory of Russia but also to the fact of the state registration of the immovable property and rights to it in the territory of the Russian Federation. In this connection, corresponding clauses of the CPC and the APC of the Russian Federation seem practical to be reworded as follows: the exclusive competence of the courts of the Russian Federation must include disputes where the subject is immovable property if such property is located in the territory of the Russian Federation, or the rights to it, and if the record about such property or the rights to it is made by a competent body in the state register (the list, the cadastre) in the Russian Federation. Consequently, the list of the bases of the exclusive international judicial jurisdiction containing in the 2002 Procedure Codes and their regulatory status are more successful and detailed in comparison to the earlier effective statutory acts. At the same time, we see that, despite of the advance of the new procedure code rules regulating the international judicial jurisdiction in cases connected to the immovable property, these rules still need further improvement; what is unprejudiced by virtue of the international civil turnover dynamism.

Abstract: The article states that for legal systems of all states the establishment of exclusive international judicial jurisdiction is traditional for disputes where the subject is immovable property. By virtue of this principle, immovable property civil cases are subject to hearing in courts of the state in which territory this immovable property is located. The Russian law has also always stuck to this principle. The 1995 Arbitration Procedure Code of the Russian Federation for the first time has established a special rule by having assigned to the exclusive competence of the Russian arbitration courts only cases with a “foreign element” where buildings, constructions and land plots were the subject. The law-maker did not mention other objects of immovable property. Besides, only strongly defined categories of civil disputes were included in the exclusive jurisdiction of the Russian arbitration courts. The author believes that such position is not comprehensive. The 2002 Procedure Codes of the Russian Federation have eliminated this shortcoming. Rules of exclusive jurisdiction, including cases concerning the immovable property in Russia, obtained greater finalization. Today, the lawmaker does not limit the establishment of exclusive judicial jurisdiction in the case connected to the immovable property in Russia by a specific range of disputable material relations; therefore, all cases where such property is the subject, regardless of the dispute nature, are subject to hearing exclusively by the Russian courts. Both the CPC and the APC of the Russian Federation when determining the exclusive judicial jurisdiction in such cases set legal effect only to the fact of the property location (i.e. physical presence) in the territory of Russia, instead of to the fact of its state registration in the Russian Federation. In this connection we may specify that these rules preserved certain uncertainty related to the possibility of an establishing the exclusive jurisdiction of the Russian courts for disputes with a “foreign element” where the subjects are marine and air craft, inland vessels and space objects subject to the state registration. In civil cases with a “foreign element” connected to immovable property, as the basis for establishing exclusive judicial jurisdiction, it is expedient to set legal effect not only to the fact of “location” of property in the territory of Russia but also to the fact of the state registration of the immovable property and rights to it in the territory of the Russian Federation. In this connection, corresponding clauses of the CPC and the APC of the Russian Federation seem practical to be reworded as follows: the exclusive competence of the courts of the Russian Federation must include disputes where the subject is immovable property if such property is located in the territory of the Russian Federation, or the rights to it, and if the record about such property or the rights to it is made by a competent body in the state register (the list, the cadastre) in the Russian Federation. Consequently, the list of the bases of the exclusive international judicial jurisdiction containing in the 2002 Procedure Codes and their regulatory status are more successful and detailed in comparison to the earlier effective statutory acts. At the same time, we see that, despite of the advance of the new procedure code rules regulating the international judicial jurisdiction in cases connected to the immovable property, these rules still need further improvement; what is unprejudiced by virtue of the international civil turnover dynamism.