Protsenko I. M. Principles on the Choice of law in international Commercial Contracts as a new way of unification in the field of private international law
The Hague Conference on Private International Law, which, as an organization designed to unify the rules of private international law, for over a hundred years has been developing international treaties on various aspects of this sphere, in 2015 for the first time turned to an uncharacteristic way of unifying the norms of private international law. Namely, she developed an international legal act of an optional nature – “Principles on Choice of law in international Commercial Contracts”. The reasons for choosing this way were mainly connected with the difficulties that arise in the preparation, adoption and entry into force of international treaties. As the subject of such unification, she chose the institution of private international law, which for a long time needed the development of a general legal regulation – the institute of “party autonomy”. As a result, the Principles adopted by the Hague Conference can be used to improve the national regulation of the institution of “party autonomy”, to complement the international legal instruments in force in this area, as well as to judges and arbitrators when establishing the parties’ rights. The principles are not a model law, they do not establish unified provisions of international commercial contracts. In our view, these Principles are the guiding explanations (or even the standards), which, as pointed out above, can be used by States in improving the national legislative regulation of the institution of party autonomy, to complement the relevant international legal instruments, as well as by courts and arbitral tribunals when establishing the parties elected by the parties, while the consent of the parties to the contract for the use of these Principles is not required. As a result of the legal analysis of the Principles, it was established that a number of their articles were formulated more successfully than the provisions of the Law of Ukraine “On Private International Law” of 2005, so it would be advisable to implement them. Also, the article shows that the Ukrainian legislation does not provide for the conditions for the application of the norms of the international “soft law” (to which we also refer the Principles), which further emphasizes the need to introduce these Principles into Ukrainian legislation.
Key words: the principle of “party autonomy”, connecting factor “law of autonomy of will”, “Principles on Choice of law in international Commercial Contracts” 2015, Hague Conference on Private International Law, The Law of Ukraine “On Private International Law” 2005, private international law.
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