Judicial and arbitration practice as a source of private international law: general provisions

Keywords: sources of law; judicial and arbitration practice; judicial precedent; sources of private international law; international commercial arbitration

Abstract

Nowadays the processes of democratization, liberalization, integration of Ukraine into European and world space take place. The undisputed significance for these processes is the signing of the Association Agreement between Ukraine and the European Union of 27.06.2014. Thus, the rapprochement of Ukraine with the European community, which has taken place in recent years, affects the sphere of private legal relations, which are complicated by a foreign element - the legal relations that make up the subject to international private law.

Having analyzed current doctrine of international private law, we can conclude that nowadays researchers are paying more attention to the role, theoretical and practical issues of judicial and arbitration practice as a source of private international law.

Qualitative changes in legal relations which are the subject to private international law, the transition to other conceptual approaches of law enforcement and legal qualification, accumulation of an extremely voluminous regulatory array, codification of the norms of certain institutes of private international law confirm the relevance of a detailed analysis and study of judicial and arbitration practice as a source of private international law.

Theoretical and practical aspects of judicial and arbitration practice as a source of private international law are analyzed. General approaches to the concept of judicial and arbitration practice as a source of law are considered. The main approaches and positions of scientists on the role, place and importance of the judicial and arbitration practice as a source of private international law are identified. It is emphasized that the mechanism of legal regulation of any branch of law is characterized by the presence of certain defects, which in one way or another complicate the regulation of legal relationships, which include, first of all, gaps in legal regulation, conflicts, etc. That is the reason why the analysis of judicial and arbitration practice as a source of private international law is considerable issue.

Particular attention is paid to the place of practice of international judicial institutions in the system of sources of private international law, including practice of the European Court of Human Rights, and international commercial arbitrations.

The analysis of scientific sources makes it possible to figure out that judicial and arbitration practice should be regarded as a source private international law of subsidiary order, bearing in mind its importance in resolving the problems of law enforcement and the interpretation of legal rules in the regulation of private legal relations which are the subject to private international law. At the same time, particular attention is paid to the practice of international judicial institutions, whose binding decision has been recognized by Ukraine, and international commercial arbitration in disputes arising from international instruments that are the source of private international law. We suppose these problems need special attention and can be considered to be an actual subject of further scientific research.

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How to Cite
Gramatskiy, E. (1). Judicial and arbitration practice as a source of private international law: general provisions. Law Review of Kyiv University of Law, (2), 121-126. https://doi.org/10.36695/2219-5521.2.2019.21
Section
The issues of civil law, commercial law, labour law and social security law of U