Keywords: proper law, contract of carriage, choice of law, characteristic performance.

European Union (hereinafter referred to as the “EU”) is one of the largest maritime partners of Ukraine. According to the International Maritime Organisation, in 2011 (the last year for which figures are currently available) cargo traffic between Ukraine and EU exceed 10,000 tons and almost 21,000 miles were sailed.

The economic inter-dependence of the modern world economy is reflected in the inter-dependence of its diverse national legal systems. Legal practitioners in the field of international trade, whether in law firms or in-house, will be only too familiar with need, often the very urgent need, to seek advice, assistance or local intervention, whether in the courts or with local authorities, in jurisdictions worldwide. Needless to say, the short summaries of key legal issues of determining the proper law of the contract of carriage between EU and Ukraine will those seeking to manage a crisis by focusing expectations and enabling them to brief local lawyers with an awareness of the opportunities and pitfalls afforded by the relevant legal system.

In the absence of express provisions in a bill of lading (or charter party), EU courts will rely on the criteria set forth on Convention 80/934/EEC on the law applicable to contractual obligations of 19 June 1980 (hereinafter referred to as the “Rome Convention”), or EC Regulation 593/2008 of 17 June 2008 (hereinafter referred to as the “Rome I”), for contracts concluded as from 17 December 2009.

The general rule under Rome I (which in this respect largely follows the Rome Convention) is that: (a) choice of law will be recognized; (b) the applicable law is that of the state of where the party required to effect the characteristic performance has his habitual residence, unless: (c)(i) it is clear that the laws of another country should apply, in which case they should do so, or (ii) the place of characteristic performance (or other prescribed criteria) cannot be determined, in which case the contract shall be governed by the law of the country with which it is most closely connected [5, p. 3].

Both the Rome Convention and Rome I have specific provisions dealing with contracts of carriage (which include voyage charterparties, but not time charterparties).

Article 4(4) of the Rome Convention provides for specific set of criteria to determine the law applicable to contracts of carriage of goods: “…if the country in which, at the time the contract is concluded, the carrier has his principal place of business is also the country in which the place of loading or the place of discharge or the principal place of business of the consignor is situated, it shall be presumed that the contract is most closely connected with that country. In applying this paragraph single voyage charter-parties and other contracts the main purpose of which is the carriage of goods shall be treated as contracts for the carriage of goods” [1, p. 3].

Article 4(4) of the Rome Convention raised much criticism, since the listed combination of criteria is often not met or appears irrelevant, leading EU courts to rely extensively on article 4(5) that allows to disregard these criteria “if it appears from the circumstances as a whole that the contract is more closely connected with another country” [1, p. 3]. Article 5 of Rome I brought a substantive change, as it provides that the applicable law shall be that of the country of habitual residence of the carrier, provided the place of receipt or delivery, or the habitual residence of the consignor, is also situated in that country. Otherwise, the law of the country of the place of delivery shall apply. However, if it is clear from all the circumstances that the contract, in the absence of the choice of law, is manifestly more closely connected with a country other than that which would govern the contract, following the application of these rules, then the law of the other country shall apply. The provisions for the carriage of goods are to be found in article 6 of Rome I. The Rome Convention and Rome I do not apply to arbitration agreements and jurisdiction agreements.

Rome I also provides that when the series of criteria does not allow for the final determination of the law of the contract, the latter shall be that of the place of delivery. This welcome addition will now preclude any uncertain decisions such at those mentioned above and ease the task of EU courts.

The European Court of Justice (hereinafter referred to as the “ECJ”) recently ruled that the last sentence of article 4(4) applies to any charterparty concerned with the actual carriage of goods, thus excluding only demise chartering [3, p. 2].

The legislation provides for applicability of the law of the country where the carrier has its general place of business, provided the place of shipment or the place of discharge is also situated in this country. If one of the above provisions is not fulfilled, the law of the place of discharging is applied, unless the contract has no “closer link” to another country.

According to The International Private Law Act, when a “foreign element” appears in legal relationships, the parties may choose an applicable law. Ukrainian procedural law allows the parties to refer the dispute to arbitration. The arbitration clause may be represented either by separate agreement (“arbitration agreement”) or as an article of the contract (“arbitration clause”). Ukrainian procedural law provides that during a preliminary hearing, the court should check whether an arbitration agreement was made and, if so, the court should leave the claim without considerations on the merits.

Bibliography

1. Convention on the Law Applicable to Contractual Obligation, 80/934/EEC. http://www.jus.uio.no/lm/ec.applicable.law.contracts.1980/doc.html.
2. Intercontainer Interfrigo v Balkenende [2009] ECJ, 2009 SCC 25. http://curia.europa.eu/juris/liste.jsf?language=en&num=C-133/08.
3. International Private Law Act, Statutes of Ukraine 2005. http://zakon4.rada.gov.ua/laws/show/2709-15
4. Lucas David, Dickinson Hill. The International Trade Law. London: Sweet & Maxwell, 2011.
5. Regulation (EC) on the Law Applicable to Contractual Obligations (Rome I), No 593/2008. http://eur-lex.europa.eu/LexUriServ/LexUriServ.d:En:PDF.

Keywords: crime prevention, victim, damages, public organizations.

Victimological direction of effect on crime is one of the most humane and perspective. As noted, K. Vishnevetsky, “conceptual analysis of different views on victimological prevention as social control shows that in the countries of Western Europe and the USA the most important function of victimological prevention is to support requisite relation between the inevitable processes of criminalization and decriminalization of society, which are the result of objective reasons” [1, p. 53].

The victimological prevention system in the countries of the West is made up of items that can be grouped into three categories: the neutralization of the objective conditions of victimization of the individual or social group; the elucidative work among specific population groups and victimological propagation; assistance to victims, including the system of state compensation and damages. It should be noted that “nowadays the behavior of the victim in criminological concepts is treated as an important element in the system of determination of the offense therefore the victimological prevention in the West countries is a specific component of the state and civil society in the prevention of crime” [1, p. 54]. The main subject of preventive activities in the framework of first selected group is state and government, and in the framework of second and third selected groups, except the government agencies, is public (non-governmental) organizations and charitable foundations.

In the Western countries an important and often essential, elements of victimological crime prevention are a public organizations which are established to protect the interests of victims of crime, assistance to victims and combating recidivism of victimization. The public participation in the prevention of crime is a major victimological idea. The Western scientists of victimology (Hall, Williams) supposed that “the public self-government has a strong potential of social regulation which can neutralizes victimological impact on society by contemporary processes of urbanization” [2, p. 34; 3, p. 267]. Therefore, in the world commonly public creates the victimological organizations which have a significant impact on the effect on criminality.

The list of recommendations of scientists of victimology which were implemented in practice is great. One of the main victimological ideas which have the most noticeable impact on the prevention of crime is necessary to unite the forces of the public. In many countries (USA, Canada, Germany) were created associations of residents, associations of neighborhoods, associations of parents etc. Neighbours united for alternate supervision of buildings. Neighborhoods’ associations operate so effectively that in many capitalist countries it became part of social psychology. Criminals did not approach to the doors of stranger house because neighborhoods promptly call to the police. The state provides comprehensive support for these initiatives of such residents. Actively promoted victimology architects (commonly it called architectural criminological theory or theories of space). In the design of urban areas and towns architects tried to minimize closed, victimological places which complicates attacks on persons (France, Italy). The houses in the villages are built in such a way that the entrances and windows are clearly visible for neighbours.

In addition to the World Victimological Organization, there are other organizations supporting victims of crime. In 1987 at Stockholm was established European Forum for Victim Support, which holds annual conferences. It includes representatives from 15 countries – the Czech Republic, Hungary, Norway, Austria, Belgium, France, Germany, Great Britain, Luxembourg, the Netherlands, Spain, Portugal, Ireland, Sweden, Switzerland and others. In the Forum also carries out the legislative work on victimological crime prevention. For example, at a conference in 1998 were adopted by the Council of Europe recommendations of minimum standard rules for providing information to tourists which became victims of crime and other foreign citizens who visit to the EU; the recommendations of improvement of the work of translation into foreign languages ​​criminal process; recommendations of  increase awareness among law enforcement officials about the needs of foreign tourists who became victims of crime; recommendations of the need for reliable and complete statistics on victimization in international tourism.

Since 1990 in Canada operates online Victimological Association – information network, which provides advice to practicing lawyers, scientists of victimology, victimological organizations, victims and witnesses and other interested parties. The main goal of the Association is to assist victims of crime and crime prevention in general through information exchange. Since the mid 90’s of the 20th century in the International Victimology Institute (Amsterdam) holds the International Crime Victimization Survey, which covers the major counties of the world and is “a form of active international cooperation in studying the phenomenon of crime which allows reveal the level of victimization and latency in different countries by comparing” [1, p. 54]. In 1987 in Germany was initiated World Victimological Society where have been published computer bibliography in German and English. The bibliography gathers all available scientific and practical information on issues of crime victims. This work is an integral part of the multifaceted activities of an International Network of Crime Prevention and Victim Support which conducts as the exchange of information between national and international organizations of assistance victims.

In a number of Western countries for coordinate activities victimological organizations were created national bodies, committees, councils, etc., which provide accordance work funds and organizations with national standards of charity work , develop guidelines for improving victimological propaganda, collect and summarize the most interesting experience,  provide communications public organizations with government agencies and  help to establish contacts with similar organizations abroad. In the United Kingdom – the National Association of Victim Support Schemes, in France – the National Institute for Assistance for Victims (INAVEM), which is established in 1986 to coordinate activities more than sixty local victimological associations. In the Netherlands is the National Organization for Victim Support (NOVS). In the United States of America there is no such official organization, but its function is largely provides the National Organization for Victims Assistance (NOVA). In Italy also no unitary organization of assistance victims, but there are many associations for assistance to victims of terrorism, organized crime, victims of theft, etc., usually created by those who survived after these crimes or by relatives of the victims.

In conclusion, we can ascertain that in their area victimological studies which conducted in recent years in foreign countries, can be summarized in three main areas: the first covers the conceptual nature – the subject of victimology, the notion of victim, victimology relationships with other sciences, the role of victim in the proceedings, the victim typology, the second – the study of the victim and her relationship with the offender in various types of crimes.

The familiarities with the victimological experience of European Union and the USA suggests that in modern Ukraine no victimological security system and victimological government policy that would be in scale compared with Western counterparts. At the same time, Ukraine has fully developed theoretical framework formation of victimological prevention. In our country created first public organizations with victimological or partially victimological orientation (the community of defrauded depositors and investors, the community of consumer protection, etc.). However, it is not united sense of common goals of victimological criminal motives in its own ideology mild, no desire to use a theoretical basis of domestic and foreign victimology. The experience of Western countries shows that the role of movement of victimological initiative performs civil society and government funding. Unfortunately, in Ukraine the organizational role of the state and public authorities in forming the unified system of victimological prevention, the development of the legal framework does not to meet contemporary challenges.

Reference List:

1. K. V. Vishnevetsky About foreign experience of victimological prevention of crimes. – Modern Law. – 2008. – № 2 – p. 53-57.

2. Hall Matthew Victims of crime. Policy and practice in criminal justice. – Willan Publishing, 2009. – 249 p.

3. Marilyn D. McShane, Franklin P. Williams Victims of Crime and the Victimization Process. – California State University Press, 1986. – 374 p.