The Russian Civil Code and the Rome Convention: Applicable Law in the Absence of Choice by the Parties

Mikhail R Badykov

Consultant on International Commerical Trade

JPrivIntL Vol 1 Issue 2 (October 2005)

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Abstract

This article deals with the absence of choice rules established in the Russian Civil Code and the Rome Convention. It covers the mains elements of the rules: the characteristic performance test and the closest connection test. Notwithstanding a clear influence of the Russian draftsmen by the ideas established by the Rome Convention, the provisions of Article 1211 of the Code are not equal to Article 4 of the Convention. The list of the presumed characteristic performers offered in the Code is the obvious textual but not a source of the real difference of the Code and the Convention. The difference roots in providing in the Code a flexible characteristic performance test, which seems allowing a wide discretion for the courts in overriding the provisions given in the list. The existence in the Code the closest connection test makes the liberty of courts even wide. There is a doubt therefore whether the mechanism of the Code is unnecessary overloaded. A comparison with the Convention affirms those doubts.

Keywords

Rome Convention art 4, Conflict of laws, Russian Civil Code