Aplicability of the law of de facto regimes

Abstract

This article is devoted to analysis the applicability of private law of de facto regimes. The author explores issues influence of political recognition of particular state on possibility of applying by the court or other public authority in private relations with foreign element the law of non-recognize state as a conflict of law rule. Thus, attention is drawn on positions of International Court of Justice, European Court of Human rights, decision of European (Germany) and Ukrainian courts. In the article comparative analysis of problems which court met with conflict of law rule is presented. The question of application of non-recognized state law as a whole, including its conflict of law rules is examined. Special attention is paid on possibility of using de facto regime law under provisions of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) and the Law of Ukraine on International Private law from 23.06.2005. Special place of research is assigned to question of applying de facto regime law by particular state court as material choice of law. Justification of applying Taiwan law is given by Germany and China courts (as interlocal collision norm), using USSR law is given by USA court, position, which is expressed in the above situation by British courts. In the same time negative positions of Ukrainian courts in order to apply Transnistria law (from the positions of public law recognition) is considered. Special attention is paid on problem of applicability of private law of de facto regimes in Ukraine. In connection with the existence of new non-recognized states on territory of Ukraine (Donetsk National Republic and Luhansk National Republic), absence of unified position of legislation, court and doctrine is remains an acute problem. Necessity of application by the national courts an effective law, even if it is a law of non recognized state in private relation, regardless of political recognition and public relations between states is justified.