Autonomy of the will (lex voluntatis) as the main conflicting principle of legal regulation of contractual relations complicated by a foreign element

Abstract

The paper is devoted to the study of conflict regulation of contractual obligations. The number of international agreements signed by private individuals belonging to different countries is increasing every year. The purpose of the paper was to study the conflicting principle of the autonomy of the will of the parties, its features, scope, conditions, and limitations in the regulation of contractual relations with a foreign element. It was found that in the national legal systems of the world, the central place in the legal regulation of contractual relations belongs to the conflicting principle of the autonomy of the will (lex voluntatis). This conflict of law principle provides for the possibility for the parties to a contractual relationship with a foreign element to independently choose the applicable law governing the legal relationship between them. However, in the international practice of legislative regulation of contractual relations, there is an uneven application of the principle of autonomy of will. It has been established that the legislation of many countries indicates the existence of norms limiting the choice of law in the field of consumer contracts. The existence of such restrictions on the autonomy of the will is explained by the presence in the above-mentioned contracts of a party in need of special protection. It has been studied that the legislation of individual states limits the choice of applicable law to the circle of states with which the agreement has an actual connection. The Law of Ukraine "On Private International Law" does not provide for such restrictions. It was concluded that the Law does not limit the choice of law only to the national legislation of the states, but provides an opportunity to choose the application of the autonomous "lex mercatoria" system. It has been found that the domestic practice of legislative regulation allows for the splitting of the conflict binding, which consists in the fact that the parties to the contract can choose the law of different countries to regulate certain parts of the contract. The scope of the right chosen by the parties includes only the content of contractual relations, its effect does not extend to the statute of limitations and the form of the contract.