Positive Clause on Public Order is the Basis for the Protection of Constitutionally Significant Values of the State

Abstract

The article notes that the purpose and mechanism of protection of public order in private international law can be understood only at the origins of the rationale for this protection, — in the doctrine of F. K. Savigny. The reasons for the formulation of F. K. Savigny only two exceptions to the displacement of foreign laws by local law, and the characteristics of fixing these rules in Art. 30 of the Introductory Law to the GGU. Analyzed are attempts to misinterpret the doctrine of F. K. Savigny after the adoption of the Rome Convention “On the law applicable to contractual obligations” (1980) and the Decision of the EU Court (2016), which gave a final assessment of these attempts. The influence of the Dutch school on modern international private law in Russia is noted. The consolidation of super-imperative norms in the legislation of Russia and the Netherlands is investigated. It has been established that the first group of norms of direct application of Art. 1992 of the Civil Code of the Russian Federation, the super-imperative nature of which in private cross-border legal relations is directly indicated by the legislator, has, in accordance with the theory of private international law, not a material, but a conflict character. The definition of super-imperative norms of the legislation of the Russian Federation, which ensure the protection of the constitutionally significant values of the state, is given.