Overriding Mandatory Rules as Directly Applicable Provisions in the Sense of Private International law

Kód výsledku v IS VaVaI

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Výsledek na webu

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DOI - Digital Object Identifier

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Jazyk výsledku

angličtina

Název v původním jazyce

Overriding Mandatory Rules as Directly Applicable Provisions in the Sense of Private International law

Popis výsledku v původním jazyce

Thus, the fundamental character of overriding mandatory provisions is the fact that they apply to a specific factual situation irrespective of the law applicable to the given relationship. It is because of the necessity of applying these norms that we often refer to ‘directly applicable norms’. They are norms that directly govern the material aspect of the legal relationship, unlike conflict-of-law rules, which only refer to the applicable law. The legislative legal construction of mandatory (overriding mandatory) rules is in no way different than other provisions. The difference consists in their function, i.e. the given norm is recognised as fundamental and should apply independently of the conflict of law norm, which referred to foreign law as applicable law. It is necessary to realise that mandatory rules in the sense of private international law (overriding mandatory rules) and public policy are two different categories. A mandatory rule (overriding mandatory rule) by nature dictates its application and thus becomes part of applicable law within the meaning of the general set of all norms, which must be applied for the resolution of a specific dispute, regardless of the origin and force of such rule. In the case of the exception of public policy substantive law, this is the suspension of the effect of a specific foreign rule and its replacement with the effect of a domestic norm. Thus, while a public policy exception only corrects the specific effect of a foreign law used in a given contractual relationship, a mandatory rule (as overriding mandatory rule) replaces the otherwise applicable (foreign) norm and acts in its place.

Název v anglickém jazyce

Overriding Mandatory Rules as Directly Applicable Provisions in the Sense of Private International law

Popis výsledku anglicky

Thus, the fundamental character of overriding mandatory provisions is the fact that they apply to a specific factual situation irrespective of the law applicable to the given relationship. It is because of the necessity of applying these norms that we often refer to ‘directly applicable norms’. They are norms that directly govern the material aspect of the legal relationship, unlike conflict-of-law rules, which only refer to the applicable law. The legislative legal construction of mandatory (overriding mandatory) rules is in no way different than other provisions. The difference consists in their function, i.e. the given norm is recognised as fundamental and should apply independently of the conflict of law norm, which referred to foreign law as applicable law. It is necessary to realise that mandatory rules in the sense of private international law (overriding mandatory rules) and public policy are two different categories. A mandatory rule (overriding mandatory rule) by nature dictates its application and thus becomes part of applicable law within the meaning of the general set of all norms, which must be applied for the resolution of a specific dispute, regardless of the origin and force of such rule. In the case of the exception of public policy substantive law, this is the suspension of the effect of a specific foreign rule and its replacement with the effect of a domestic norm. Thus, while a public policy exception only corrects the specific effect of a foreign law used in a given contractual relationship, a mandatory rule (as overriding mandatory rule) replaces the otherwise applicable (foreign) norm and acts in its place.

Druh

O - Ostatní výsledky

CEP obor

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OECD FORD obor

50501 - Law

Projekt

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Návaznosti

I - Institucionalni podpora na dlouhodoby koncepcni rozvoj vyzkumne organizace

Rok uplatnění

2023

Kód důvěrnosti údajů

S - Úplné a pravdivé údaje o projektu nepodléhají ochraně podle zvláštních právních předpisů