Public Interest and Safeguard Clauses in Private International Law

Abstract

In its judgment in case C-135/15 dated April 20, 2016 the Court of Justice of the European Union confirmed the most important provisions of the doctrine of F.C. Savigny: 1) the public policy of the state is protected both by a general public policy clause (negative clause) and by special rules of a strictly positive, imperative nature (positive clause); 2) the application of positive and negative public policy clauses is based on considerations of public interest that are of fundamental importance for the political, social or economic structure of the country. In the constitutional law of Russia and foreign countries, the political, social and economic foundations of the country’s structure are the three fundamental foundations of the state, enshrined as provisions of the Constitution. The EU Regulation Rome I (Art. 9), the Civil Code of the Netherlands (Art. 10:7) and other modern foreign legal acts, as characteristics of super-imperative norms, fix the protection of public interests related to the three fundamental foundations of the organization of the state: political, social or economic structure (organization) of the state.Art. 1193 of the Civil Code of the Russian Federation establishes the elements on the legal, political or economic system of the state used by the Supreme Court of the Russian Federation as a template to determine the differences in the system of the state. Therefore, they are not suitable for the characteristics of public policy and protective clauses on public policy. Enshrined in Part 3 of Art. 55 of the Constitution of the Russian Federation, public interests (constitutionally significant values) are of fundamental importance for the political, social or economic structure of the country. In accordance with the doctrine, modern legislation and practice, public policy is based on these interests within the meaning of private international law. Considerations related to the indicated public interests underlie the application of both positive (Article 1192 of the Civil Code of the Russian Federation) and negative (Article 1193 of the Civil Code of the Russian Federation) public policy clauses.