O potrzebie wskazania w nowej ustawie o prawie prywatnym międzynarodowym podstawy stosowania przepisów wymuszających swoje zastosowanie

Abstract

The author takes a view that a general provision, which would constitute a basis for the application of or giving an effect to the overriding mandatory provisions of the forum or of a third country, should be included in the new act on private international law. This conclusion is preceded by a historical and comparative analysis of the concept of the overriding mandatory provisions. The author presents the differences between art. 7 of the Rome Convention and art. 9 of the Regulation Rome I, and takes a position that the former is to be preferred. This is particularly because of the possibility to give an effect to the overriding mandatory provisions of the third country. Therefore, it should be seen as one of the advantages of the draft of the new private international law, that art. 9 of the draft, which concerns the overriding mandatory provisions, is modeled rather after art. 7 of the Convention and not after art. 9 of the Regulation Rome I. The author makes also a proposition how the terms such as “country where the obligations arising out of the contract are performed” and “unlawfulness of the performance of the contract”, as provided for in art. 9(3) of the Regulation, should be interpreted, in order to achieve the effect that the said provision could be understood as similar to art. 7(1) of the Convention as possible.