Èkonomika, Pedagogika i Pravo (Mar 2016)
Preliminary (Collateral) Question in the International Private Law: Concept and Legal Nature
Abstract
One of the most difficult problems of application of conflict-of-laws rules in the international private law is the problem of statement and permission of a preliminary (collateral) question. This results from the fact that in the scientific doctrine there was no uniform understanding of the legal nature and ways of permission of a preliminary question, and lack of his fixing at the legislative level. In article the concept of a preliminary (collateral) question as legal treatment of the actual circumstances accompanying consideration of the main legal relationship reveals and also examples of those actions which need to be executed before definition of applicable law to the main legal relationship or in the course of its application are given. Permission of a preliminary question is necessary for the correct and complete idea of all actual facts of the case arising by consideration of the civil dispute complicated by a foreign element. The author reveals possible solutions of various options of a preliminary (collateral) question, in particular, by means of use of the right of the country of court (lex fori), the right of the country with which legal relationship in general (lex causae), and also the legal procedure of the national right is connected.
