The dissertation is devoted to the complex comparative study of international legal regulation for adjudication of international family disputes. The author investigates special features, problems and prospects of further unification – both at the universal and regional levels, of certain institutes of international civil litigation: international jurisdiction, preliminary protective measures, recognition and enforcement of foreign judgments, international judicial cooperation.
The theoretical and practical problems of applying the conventions prepared by the Hague Conference on Private International Law (Convention of 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, Convention of 1980 on the Civil Aspects of International Child Abduction, Convention of 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, Convention of 1978 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations), the EC directives and regulations (e.g. Regulation No 2201/2003/EC of November 27, 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility, Regulation No 4/2009/EC of December 18, 2008 on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and Cooperation in Matters Relating to Maintenance Obligations) and bilateral agreements of Ukraine on legal assistance in family matters are deeply examined.
The Principles and Rules of the International Civil Procedure ALI / UNIDROIT, the IAPL Principles on Precautionary and Protective Measures in the International Civil Process, the Guiding Principles for Regulating Dispute Resolution (GPGR) as soft law acts and lex ferenda are explored.
The author studies the ECHR and ECJ case-law, Ukrainian court decisions providing explanations on current controversial issues of the various parts of international civil litigation. On this base the main factors of the modernization of international civil litigation for the resolution of family disputes with «foreign element» were outlined: the principle of taking into account the best interests of the child, the autonomy of the will, the protection of the «weaker» party in determining international jurisdiction, the principle of free movement of judgments and international judicial cooperation.
The novelties of the Ukrainian Law from 23 June 2005 About International Private Law with regard to international civil litigation, its positive features and its defects are represented. Relevant proposals to improve legislation and practice taking into consideration international legal standards concerning international protection of human and child rights in particular defined by the case law of the European Court of Human Rights have been formulated.
It is proved that international civil procedure in Ukraine does indeed need a further development which should, inter alia, include bilateral cooperation with foreign countries at the level of agreements on legal assistance in family matters, ratification of the Hague Convention on the Recognition of Divorce and Separation of Spouses of 1970, provisions of which are consistent with the content of many provisions of the Brussels IIbis Regulation; accession to the Lugano Convention 2007 in accordance with the procedure laid down in Article 72 of the Convention or signing a bilateral agreement between Ukraine and the EU (as an alternative to the Lugano Convention of 2007).
The major improvements that should be implemented in the Ukrainian internal legislation in particular deal with clarification of the rules on lis pendens-related actions, prorogation of jurisdiction, transfer of jurisdiction.
The practice of resolving international family disputes requires a transition from an administrative («mixed») procedure for the provision of legal aid to the direct procedure of communication between judges of different states specializing in the resolution of specific categories of international family matters. This is due to the introduction of two parallel systems of international judicial assistance: The Hague Network of Judicial Assistance (International Hague Network of Judges) and the European Judicial Network of Civil and Commercial Matters (European Judicial Network), which are already operating in the EU Member States and Ukrainian courts should join them.
