OVERRIDING MANDATORY RULES IN THE INTERNATIONAL PRIVATE LAW

Abstract

Overriding mandatory rules fall within the context of the unilateralism in the International Private Law. This implies that there are certain norms outside the corpus of the conflict of laws norms applying to the legal situations with a foreign element. These norms can be a part of the forum state law, applicable law (lex causae) or the third law with which the legal relation in question has a particular, close relationship. They can also be of a supranational character. Overriding mandatory rules represent mandatory norms which impose their own pertinence and apply to all legal relations related to the country whose law they are a part of. In this sense, they are aimed at protecting the economic, commercial and financial order of the state. They are applied regardless of the guidance of the conflict of laws rules. These norms are, by their very nature, and to a certain degree concerning their content, similar to the institution of public order in the international private law. They are particularly important in the sphere of contractual relations, where their application also gets a supra-national dimension, bearing in mind the membership of a particular state to the European Union. Having in mind its specificity and growing importance in the context of inter-state economic activity, it is useful to devote a special and additional attention to these norms. To this end, this work will be dedicated to the most important theoretical and practical aspects of this institute of the international private law. Starting from the general framework of unilateralism, as a way of regulating the civil law relations with a foreign element, over the concept, characteristics and effect of overriding mandatory rules in the national and communitarian international private law, to the practical aspects of their application in contractual and other private legal relations. Also, there will be pointed out a distinction referring to the institution of public order in the international private law, as well as to the special significance of overriding mandatory rules arising from the EU legal order.