Bukvych A. Substantive and conflicts of law regulation of securities' circulation in international private law.

Українська версія

Thesis for the degree of Candidate of Sciences (CSc)

State registration number

0412U005745

Applicant for

Specialization

  • 12.00.03 - Цивільне право і цивільний процес; сімейне право; міжнародне приватне право

02-10-2012

Specialized Academic Board

Д 26.001.10

Taras Shevchenko National University of Kyiv

Essay

This thesis is devoted to theoretic and practical problems research in the sphere of securities' circulation in private international law. On the ground of the analysis of international documents, legislation of foreign countries and Ukrainian legislation in this sphere, the author has made the research of the substantive and conflict of laws regulation of securities' regulation in international private law. The author also draws the attention to the legal treatment of the securities held with the intermediary. The thesis is also devoted to the analysis of the legislation gaps in the Ukrainian legislation in the sphere of the circulation of the securities, particularly securities held with intermediary. As a result, the author proposed the methods and the ways of the improvement of Ukrainian legislation. The necessity of particular analysis is determined by the increase of the international securities transactions in international private law. Securities market merge and expand within the country, region and worldwide. So, the volume of transnational and international securities transactions increases every year. As a result, there are a lot of risks which should be carefully examined to prevent their appearance in the future transactions and guarantee the effectiveness of the securities market operation. Secondly, the thesis aimed to provide a research of today's practice of securities transaction, its historical background and legal framework of some countries (USA, France, Sweden, Switzerland, Germany, Finland, Russian Federation), European Union and Ukraine. Taking into account the foregoing, the author mentioned about great differences exist in the domestic rules concerning the custody, transfer and ownership of securities both in direct and indirect holding system. As a result, conflict of laws regularly arises and for this reason the rules designating the applicable law are relevant question of our investigation in thesis. One of the ways to exclude the time-consuming process of applicable law designation is harmonization of the international private law in this sphere. The analysis of the present stage of the harmonization is one of the main question of the thesis. The reason is to predict what rules will apply to the property aspects of rights in securities which are subject to an indirect holding system, and how such rules will be applied. The conflict of laws method is not considered as the sufficient method of regulation and may be effective only with the substantive law regulation method. From the other hand, the effectiveness of the cross-border securities transactions is determined by the existing mechanism of rapprochement between states in the sphere of issue and circulation of the securities. At the same time, the concept and some characteristics of securities should be changed, in particular when we talk about indirect holding system. Then, the securities in indirect holding system have the other legal treatment which is distinct from the treatment of securities in direct holding system. As a result, the relationship appeared from the securities transaction in indirect holding system should be examined carefully. Therefore, the author gives a particular emphasis to the analysis of the indirect holding system in general and its constituent parts.

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