Legal Regime of the Choice of Law Agreement Form

Abstract

Based on the analysis of the views on the legal regime in the domestic jurisprudence of the form of an agreement on the choice-of-law, arguments are put forward in support of the liberal standard, according to which such an agreement is not bound by the form requirements traditionally presented to transactions. The thesis is substantiated that the agreement on the choice of law constitutes a sui generis phenomenon and cannot be qualified as a transaction in the sense that article 153 of the Civil Code of the Russian Federation puts into it. According to the author, this agreement, in terms of its form and content, is fully regulated by the special lex fori rule, which empowers parties to private law relations with a foreign element to choose the applicable law (in the Russian Federation, article 1210 of the Civil Code of the Russian Federation). Moreover, by virtue of the recognition of not only directly expressed, but also “implied” agreements on the choice of law, the very concept of “form” has a conditional character in this case.