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Konwencyjne prawo jednolite a normy kolizyjne

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Dyrda Ł.

Kwartalnik Prawa Prywatnego

2013

vol. 22

issue 2

483-512

In a typical situation civil-law relationships are governed by national substantive laws which are designated by national conflict-of-laws rules. This results in the multiplicity of rules both as regards substantive law and the conflict of laws. The phenomenon was observed quite early and some initiatives were undertaken to unify conflict-of-laws rules at the end of the 19th century. However, unification in the modern meaning understood as the unification of substantive laws by uniform laws started to develop in the 1920s, when the 1924 Bills of Lading Convention was signed. Although some conventions unifying substantive laws have been ratified by a significant number of states and their provisions have been widely discussed, little attention was paid to the mostly theoretical, but having practical implications, issue of the relationship between uniform law and conflict-of-laws rules. The article, inspired by the monograph of Valentine Espinassous entitled L’Uniformisation du droit substantiel et le conflit de lois, published in 2010, discusses the problem searching for the most appropriate from the private international law perspective solution. Several different types of uniform laws can be identified depending on whether they apply both to internal and to international situations and whether there are further conditions for the application of a given uniform law. Other classifications were proposed as well. However, there can be no doubt that uniform laws form a part of national legal orders despite the fact that conventions providing them are deeply rooted in the international legal order. This observation is the starting point of the analysis that leads to the conclusion that uniform laws eliminate conflicts of national legal orders neither in the formal nor substantial meaning and, therefore, private international law should intervene. The desirable and reasonable method is to apply uniform laws as a part of the lex fori. There are a few ways to attain this objective. The article discusses these possibilities, including that advocated by V. Espinassous and, having rejected them, suggests to make a reference to the unilateral conflict-of-laws rule, the same which, in accordance with the prevailing opinion of the Polish legal doctrine, is the private international law basis for the application of overriding mandatory provisions. The operation of this proposal is shown on the example of the 1980 Vienna Convention on Contracts for the International Sale of Goods.

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1 Kwartalnik Prawa Prywatnego

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Konwencyjne prawo jednolite a normy kolizyjne