Проблематика правової кваліфікації в міжнародному приватному праві: доктрина, судова практика і український закон

Abstract

In this paper, the author observes the historical origins and development of doctrines of qualification (characterization) in private international law. Analyzing different approaches as to the place of qualification in the process of operation with a choice-of-law rule, as to its scope and subject, as well as to the distinction between qualification and interpretation processes, the author concludes on the controversial nature of this issue, as well as of the alternative views on the qualification subject and approaches to qualification that may be followed by a judge. Considering current Ukrainian private international law act within the context of alternative approaches to qualification (characterization), the author recognises valuable contribution of its Article 7, arguing that it is exactly a function embodied into a foreign law institute should be treated as a point of synchronization with the relevant choice-of-law rule of the forum. And the role of the case law the author sees as a decisive in the course of such approach implementation.