THE PRINCIPLE OF THE CLOSEST RELATION AND THE SOLUTION OF CASES OF INTERNATIONAL PRIVATE LAW- FROM THE BASIC IDEA TO THE REALIZA TION OF THE GOAL OF THE COLLISION RULES Cover Image

ПРИНЦИП НАЈБЛИЖЕ ВЕЗЕ И РЕШАВАЊЕ СЛУЧАЈЕВА МЕЂУНАРОДНОГПРИВАТНОГПРАВА – ОД БАЗИЧНЕ ИДЕЈЕ ДО РЕАЛИЗАЦИЈЕ СВРХЕ КОЛИЗИОНИХ НОРМИ
THE PRINCIPLE OF THE CLOSEST RELATION AND THE SOLUTION OF CASES OF INTERNATIONAL PRIVATE LAW- FROM THE BASIC IDEA TO THE REALIZA TION OF THE GOAL OF THE COLLISION RULES

Author(s): Milorad Ročkomanović
Subject(s): Law, Constitution, Jurisprudence, International Law
Published by: Правни факултет Универзитета у Нишу
Keywords: conflict of laws; localization factors; closest connection principle; general exception clauses

Summary/Abstract: The paper represents an attempt on the part of the author to acquaint the reader with the ways practiced by the competent law in regulating the relations in International Private Law. That is the reason the author brings forth the deciding factors and their influence upon the legislator for a concrete decision in the collision of laws. Apart from the objective, there are the subjective points of contact, at which the latter come to the surface through giving freedom to the parties in the given legal relationship (most often in the contracts with the elements of international character) to decide for themselves the law for their relationship. In addition, even when the legislator supposedly does not set any limits in that respect, the parties when choosing the law ought to take into account the cogent rules of home law, as well cis the rules of public policy lex fori. The legislator, on the other hand, can authorize the judge not to apply the solution of the collision of laws prescribed by his collision rules, in case there is a stronger relation between that legal relation and some other country (general clause of exemption). By means of this method, which takes us to the disclosure of the closest to the relation in question, one wants to eliminate the abstractness of the collision rules, and in any concrete case, as much as it is possible, come to the individually most proper solution. However, this method has inherent dangers for the judge in charge of this matter. His decision will depend primarily on his knowledge, skill, sense of justice, but equally on the ability to be above the legal chauvinism, acknowledging the closer contact, which means "the stronger law" to the foreign law as "closer" in comparison with the home one.

  • Issue Year: L/2007
  • Issue No: 50
  • Page Range: 1-25
  • Page Count: 26
  • Language: Serbian