Flexible regulation in conflict of laws

Student: Nikishin Yakov

Educational Programme: Bachelor

Year of Graduation: 2014

The modern approach to the conflict of laws is constantly in search of satisfactory choice-of-law system. Globalization, changing forms of economic relations, such as transnational business dealing, Internet commerce demand for the new form of regulation, which would take into account the actual circumstances of the case in the consideration. This primarily concerns contractual relation, but also true for the others areas of civil law. The central problem of conflict of laws is how to determine the applicable law when the interests of two or more jurisdictions are in conflict. The dilemma of choice-of-law arises when the substantive laws of these jurisdictions differ - consequently, application of one jurisdiction's law may lead to a different result than application of the other concerned jurisdiction's law.The problem of the collision between two or more national system of law there is method of legal regulation that distinguishes private international law. Realization of this method is fulfilled by implementation of the legal norms that contains «reference» to the applicable national law system. In other words, the conflict of laws norms are the legal instruments to determine the national legal order, which will regulate the legal relations between subjects of private law. Development of connection factors consists in the movement toward flexibility is the replacement of «pre-fixed, mono-directional, and rigid connecting factors (such as the loci contractus or the loci delicti) with open-ended, poly-directional, and flexible connecting factors». The main advantage is of the flexible factors independence on the location of a single contact,of the parties, meets the needs of legal regulation in the global economy. The application of new technological tools changing the shape of the contractual relationship in private international law - all this factors reflects on the legal regulation of conflict of laws and demands the changes.Conflict of laws as a part of private international law is modified in accordance with the character of international civil legal relations. As mentioned above «rigid connection factors" is no more able to handle with the changing legal relation, so in legislation of the most countries we can see implementation of « flexible methods of regulation». Applying the «traditional connection factors» not always take into account facts of the case and as the result deny the parties' interests, as well their choice of law. Currently, the main way to solve the collision - to use of abstract, "flexible" rules for taking account of the specific circumstances of the actual case. Modern conflict of laws employ various tools—such as soft connecting factors, escape clauses, or a combination of rules and «residual approaches»—which provide controlled dosages of flexibility, and thus help «attain an equilibrium between the perpetually competing needs for certainty and flexibility». Relationship in private law is extremely dynamic and reflect changes in many areas of life, especially it is true for lex mercatoria- so, the purpose of «soft regulation" to approximate the legal regulation to currently existing commercial practices, civil relation.Flexible conflict of laws regulation contain connection factors to the national law of the state that has « the closest connection» with the relationship, provide comprehensive study of the details of the case. Analyzing the most advanced legislation in private international law, such as Rome conventions, Codification of Turkey and Bulgarian, Switzerland allow to allocate most tendencies in private international law, identify the concept of regulation that are the most suitable for current legal relationships. In judgments and legislation in many countries, different approaches have been taken to the question of a so-called «flexible exception to the general rule», as well as the content of the general rule, trying to find the most convenient system of regulation. A difference between the laws of two or more jurisdictions with some connection to a case, such that the outcome depends on which jurisdiction's law will be used to resolve each issue in dispute. Flexible approach of conflict of laws in its most general form can be represented by the following definition : it is a way to solve the problem of the collision by providing court or arbitration an opportunity to choose the national law, in order to achieve a fair and reasonable result , except the formal approach and protect the interests of the parties, to evaluate the various criteria to determine eligibility of state law system which has the closest relationship to the case.

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