предлагаю запостить решения

фабула дела всем известна - на запрос банка КР филиал банка страны Z отказался перевести деньги из-за введенных санкций в стране Z

[большое спасибо Саше за ценную информацию и комментариям к ГК USAID]

Hypothetical

ISSUE

Whether the state Z has a power to prohibit the transfer of funds from the branch of legal entity of country Z which situated in third country under the a commission of legal entity of Kyrgyz Republic?

RULES

Civil Code of Kyrgyz Republic

Article 2. Civil Legislation
1. Civil legislation shall be based on acknowledgment of the equality, autonomy of will and property independence of civil law participants, property inviolability, contract freedom, inadmissibility of arbitrary interference on the part of anyone into private affairs, and the need for unhindered implementation of civil rights, and guarantees of restoration of violated rights and protection thereof in the courts.

Article 760. Contract of Bank Account
1. Under the contract of bank account the bank or other lending institution (further referred to as the bank) shall accept and credit funds to an account opened to the customer (the owner of the account), to execute the instruction of the customer on transfer and delivery of respective amounts of money from the account and performance of other operations on the account.
2. The bank may use the customer's funds on the account securing the customer's right to dispose of these funds at any time within the limits of the amount on account without any hindrance.
3. The customer shall independently dispose of his funds on the bank account.

Article 1167. Determination of Law Subject to Application to Civil Law Relations Complicated with Foreign Element

1. Law subject to application to relationships of private law with participation of foreign citizens or foreign legal entities or complicated with other foreign element shall be determined on the ground of this Code, other laws, international treaties and recognized international customs as well as on the ground of agreement of the parties.
3. In the event if in accordance with point 1 of this Article it is impossible to determine the law subject to application, the law shall be administered which is most closely connected with relationships of private law complicated with foreign elements.

Article 1199. Law Applicable to Contract in Absence of Agreement of Parties
3. Contracts that were not listed in points 1 and 2 shall be determined under the law of the country of registration… of the party, which performs execution of crucial meaning for such contract shall be applied.

Libyan Arab Foreign Bank v. Bankers Trust Co.
… in accordance with principles of international law… contract between bank and client is always governed by the law of the place of the account.

Declaration on principles of international law concerning friendly relations and cooperation between states in accordance with UN Charter 1970
Principle of а sovereign equality of the states
All states are entitled to exercise a sovereign equality.

ANALYSIS

First of all, according to point 3 of article 1199 of Civil Code “contracts that were not listed in points 1 and 2 shall be determined under the law of the country of registration… of the party, which performs execution of crucial meaning for such contract shall be applied”. Thus, transaction shall bу governed according to the law of country Z according to article 90 of Civil Code, because the bank in country C is a branch of country Z.

Even if the law of country Z shall be aplied it is not consistent with article 1173 of Civil Code, which prohibits an application of international law if it contradicts a public interest. Public interest can be defined as main principles of Constitution and normative-legal acts of KR.
Accrding to article 2 of Civil code “civil legislation shall be based on acknowledgment of the equality, autonomy of will and property independence of civil law participants, property inviolability, contract freedom, inadmissibility of arbitrary interference on the part of anyone into private affairs…” It is plain that by imposing restriction on the transfer of money country Z violated main principles of Civil Law of Kyrgyz Republic by preventing kyrgyz legal entity to dispose its’ assets freely, which means – public policy of Kyrgyz Republic. Thus, the application of the laws of country Z and Enactment 333 in particular shall be prohibited under article 1173 of Civil Code. The case shall be decided on the basis of Kyrgyz Law.

According to article 1167 of Civil Code “law subject to application to relationships of private law with participation of… foreign legal entities… shall be determined on the ground of… recognized international customs”.
According to Libyan Arab Foreign Bank v. Bankers Trust Co. “in accordance with principles of international law… contract between bank and client is always governed by the law of the place of the account”. Thus, the transaction shall be governed by the law of country C.

Also, the Enactment of countrty Z cannot restrict the transaction from country C as it is contrary to the fundamental principle oа international law – economical sovereignty according to Declaration on principles of international law concerning friendly relations and cooperation between states in accordance with UN Charter under which “all states are entitled to exercise a sovereign equality”.

After all, if Kyrgyz Republic recognized an arbitral decisions of other countries (as it is done in common law countries), the decision, probably, would have been that the transaction shall be governed by the law of country C, because identical decision was held in Libyan Arab Foreign Bank v. Bankers Trust Co.

At the same time, according to point 3 of article 1167 of Civil Code “in the event if in accordance with point 1 of [Article 1167] it is impossible to determine the law subject to application, the law shall be administered which is most closely connected with relationships of private law complicated with foreign elements”.
According to the facts of the case the “most closely connected” state would be a Kyrgyz Republic, because none of the other states would have any “contacts” with money in country C. The only “contact” under this case would be Kyrgyz Bank.
In this situation Enactment 333 cannot influence on a bank account in country C, because the “most closely connected” law would be the law of Kyrgyz Republic.

The law of Kyrgyz Republic shall be aplied in the present case.

CONCLUSION

Despite of the fact which law shall be aplied in present case, the Government of country Z has no legal power to prohibit a transfer of funds from the branch of Bank X, legal entity of country Z under Civil Law of Kyrgyz Republic, common law and international law.