Recodification of private international law provisions within the framework of the new Civil Code of Ukraine (Ukrainian CC) necessitates that at the same time new articles are formulated and additional provisions introduced which have the application scope covering those private law institutions which have not been regulated during the prior autonomous codification. In particular, the set of conflict-of-laws rules should be supplemented with provisions on securities existing in certificated and non-certificated forms, and on netting as a way to terminate civil obligations.

This article aims at highlighting the key problematic aspects of conflict-of-laws regulation of cross-border legal relations in respect of securities and netting and the ways of dealing with the same, as these aspects should be taken into account when formulating the content of respective conflict-of-laws rules in the new section of Ukrainian CC which will contain private international law provisions. It is established that different conflict-of-laws principles should form the basis to regulate “in rem statute” and “in personam statute” of securities, and also that securities which exist in different forms should be localized in different ways. Adaptation of the classical lex situs conflict-of-laws principle to this category of objects of civil law relations turns out to be a more difficult task given that it is not possible to determine their location using the common criteria, and also because there is a need to search for additional localization factors. In the case of securities which are registered with the depository system and are held by intermediaries, conflict-of-laws regulation should be based on special principles capable of addressing this issue which are enshrined at the international conventional level and applicable in the world practice.

It is established that dealing with the conflict-of-laws issue as regards to netting transactions, where a choice of law is not available to the parties of these transactions, involves objective difficulties due to the specifics with which this contractual institution functions; furthermore, this issue should be dealt with taking into account all of the circumstances of specific legal relations.

The author concludes that if Ukrainian codification of private international law provisions is supplemented with provisions on cross-border securities transactions and netting transactions, this will contribute to bringing domestic legislation in this area closer to the best standards of European law of conflict and to creating an adequate legal framework for Ukraine’s integration into the international financial space.

Authored Books

1. Vygovskyy O, Textbook on International Financial Law (Kyivskyi universytet 2012) (in English). 2. Vygovskyy O, Instytut tsinnykh paperiv u mizhnarodnomu pryvatnomu pravi [Institute of Securities in Private International Law] (Kyivskyi universytet 2012) (in Ukrainian).

Journal articles

3. Dyba V, Kotkovskyi V, ‘Netting – bankivska novatsiya u rozrakhunkakh’ [‘Netting – Banking Novation in Settlement’] (2010) 24 Formuvannia rynkovoi ekonomiky 467–82 (in Ukrainian).

4. Filippov А, ‘Nekotorye aspekty avtonomii voli v rossiyskom mezhdunarodnom chastnom prave’ [‘Some Aspects of Party Autonomy in Russian Private International Law’] (1999) 1 Aktualnye problemy grazhdanskoho prava 422–61 (in Russian).

5. Getman-Pavlova I, ‘Kollizionnoe regulirovanie oborota tsennykh bumag’ [‘Conflict of Laws Regulation of Circulation of Securities’] (2007) 5 Bankovskoe pravo 20–5 (in Russian).

6. Yepifanova Yu, ‘Netting iak sposib podolannia finansovykh ryzykiv’ [‘Netting as a Method of Mitigation of Financial Risks’] (2014) 17 Visnyk Kharkivskoho natsionalnoho universytetu imeni V. N. Karazina. Seriya “Pravo” 94–6 (in Ukrainian).