The principle of “party autonomy” and some problems of its legal regulation in the law of Ukraine on Private International Law
Journal Title: Правова держава. Щорічник наукових праць (Pravova derzhava) - Year 2017, Vol 28, Issue
Abstract
The theory of “party autonomy” was formulated in the XVI century by French scientist Charles Dumoulin. Despite the fact that the scientist was trying to use it to solve the conflict issues of application of the legislation (kutyumov) of different regions of France, this theory is consistent to solve conflict issues of modern international private law. The legislation of Ukraine, following the leading trends of scientific development of private international law, treats “party autonomy”, both as the material principle of private international law and as a connecting factor. The article focuses on a number of issues that arise in connection with insufficient total control of the principle of “party autonomy” Section I of the Law of Ukraine “On International Private Law” 2005. Namely, in the absence of legislated definitions of “autonomy of will” and “selection of law” number of qualities that would point to the specifics of this principle (for example, to set the scope of the parties expressing their will). Also, contrary to the definition of the named content item. 5 of the Act, which establishes common rules for the application of the principle of “autonomy of will”. In addition, Art. 5 of the Act also has some drawbacks: some of its provisions apply to the relationship, and some – only on the agreement (the so-called “pravochyn”), and therefore they can not be applied to the process of choice of law for the regulation of tort liability. The paper also addressed the issue of action chosen by the parties at the time of law. In spite of these shortcomings in the article, as a whole provisions of the Law of Ukraine “On International Private Law” governing principle of party autonomy, they are progressive and significantly facilitate the practical application of this principle.
Authors and Affiliations
Iryna Protsenko
Keywords
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