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Author: Mikhail Badykov


In this article, the author compares the provisions of the 1980 European Convention on the Law Applicable to Contractual Obligations (Rome Convention) and the 1994 Russian Civil Code on implied choice of a governing law (the provisions of Article 3 of the Convention and Article 1210(2) of the Code). He begins with an examination of whether the Code and the Convention allow the use of the same factual data for inferring an implied choice; goes on to analyze whether the relationship between the terms and the circumstances is the same under these two instruments; and concludes by testing whether the Code and the Convention demand the same level of certainty in inferring a choice. This research enriches the methodological background to the rules set forth in Article 1210(2) of the RF Civil Code, as the Russian case law on the subject is quite elementary at present and courts and lawyers, therefore, lack any firm guidance. The author shows that a prima facie similarity in the possible use of terms and circumstances in the Convention and the Code is misleading. Many circumstances that are well-settled under the Convention (e.g., the choice of a particular forum, reference in a contract to a national statute, use of standard forms, etc.) are likely to be ignored in Russia. Furthermore, there is a difference between terms and circumstances in the instruments examined. This difference has its roots in the general provisions of the RF Civil Code (Part I). The implication of a choice in the Code demands such a high standard of certainty that it renders the regulation of the Code substantially different from that of the Convention.

In: Review of Central and East European Law