Identification by the Сourt of Choice of Law Agreement Permissibility and Validity (in the Light of the Supreme Court of the Russian Federation Plenum Explanation of 9 July 2019)
Problem statement. Standard of choice of law by the parties to international contractual relations is set by article 1210 of the Russian Federation Civil Code, which nevertheless does not cover issues of choice of law agreement permissibility and validity. Goals and tasks of the research. Goal – analysis of legal foundation for the court to identify choice of law agreement permissibility and validity – in the light of the Supreme Court of the Russian Federation plenum explanation of 09 July 2019. Tasks: review of approaches to identify choice of law agreement validity and criticism towards some of them; substantiation of delimitation made by the Supreme Court of the Russian Federation between issues of choice of law agreement permissibility and validity; substantial analysis of identification by Russian courts of choice of law agreement permissibility. Methods. Methods of theoretical research are tools of formal logic, which include: analysis of the court procedure to approve the choice of applicable law, enabling to distinguish in its frames issues of permissibility and validity of such choice; deduction of basic conflict of laws logic to the court acknowledgement of choice of law agreement permissibility – on the ground of national conflict of laws rule. Methods of empirical study are based on identification and comparison of judicial acts of arbitration and regular courts – in respect of legal ground to identify choice of law agreement permissibility. Results, brief conclusion. Three basic options of legal ground to identify choice of law agreement permissibility and validity have been elaborated by jurisprudence: law of the court (lex fori); law chosen by the agreement of parties (lex voluntatis); law applicable to the substance of relation due to the conflict of laws rule (lex voluntatis). The Supreme Court of the Russian Federation formed a combined approach making delimitation between issues of choice of law agreement permissibility and validity as well as referring the first to lex fori and the second – to lex voluntatis. Identification of choice of law agreement permissibility by Russian courts on the basis of national conflict of laws rule (article 1210 of the Russian Federation Civil Code in combination with the general provision of its article 1186) corresponds in full extent to the settled judicial practice, complies with the basic conflict of laws logic and seems to be effective.