Application by Court of the Closest Connection Principle as General Gapfilling Conflict of Laws Rule

Abstract

Problem Statement. Addition of new conflict of laws rules to the section VI of the Civil Code of the Russian Federation and exclusion of corresponding relations from the closest connection principle domain in 2013 raise the issue of this principle regulative potential in the modern context. Goals and Tasks of the Research. The main goal of the research is to substantiate relevance for application by court of the closest connection principle as general gap-filling conflict of laws rule. The indicated goal presupposes two tasks: firstly, on the basis of legal doctrine and judicial acts analysis to reveal legal relations for which there is no conflict of laws rule at the moment; and, secondly, to make analysis of specific case where multinational foreign elements do not permit to solve conflict of laws. Methods. Methods of the research embrace general scientific and particular scientific. The first are the general tools of logic, including analysis, synthesis, induction, deduction and analogy, as well as systemic approach according to which the native conflict of laws is considered as integrated system. The key role among the second plays the comparative legal method which allows to compare positions of legal doctrine and various judicial acts regarding application of the closest connection principle. Results, Brief Conclusion. Thesis is substantiated that the closest connection principle as general gap-filling conflict of laws rule will be relevant as far as social relations are evolving and its new forms require legal, including conflict of laws, regulation. The author makes conclusion that the closest connection principle under para. 2 art. 1186 of the Civil Code of the Russian Federation should be applied by court, firstly, when conflict of laws (on the level of international treaty, national legislation and custom) has no rule for private legal relation of international character; and, secondly, when coexistence of several multinational elements, all relevant from the point of view of the applicable conflict of laws rule, does not permit to solve the conflict of laws.