Cross-Border Contractual Obligations: Issues in Legal Qualification

Abstract

When resolving cross-border disputes, the courts almost inevitably face the need for a legal qualification of the disputed relations. The legislation and legal practice in many countries of the world have developed traditional approach, according to which the legal qualification is carried out on the basis of norms of national state law (lex fori). The complexity of the process of legal qualification due to several reasons: the necessity of taking into account the content of foreign law, the existence of different mechanisms of legal qualification recognized in different jurisdictions, but also the evolution of private international law. At the present time there has been a development of the institute of legal qualification, coupled with a deep modification processes of the entire system of normative regulation of cross-border relations. Thus, the emergence and rapid development of transnational norms, their recognition and increasingly active application in the practice of international commercial arbitration actualizes the potential of the autonomous qualification as another method of legal qualification in private international law. Practice of application of the method of the autonomous qualification in the resolution of cross-border disputes by foreign courts and international commercial arbitration is analyzed in the doctrine of European private international law and finds more and more supporters. This practice is most prevalent is in cross-border commercial disputes. The article taking into account modern trends of development of international trade law in relation to crossborder contractual obligations features the peculiarities of pre-qualification; qualification under applicable law; qualification in the application of the chosen law; qualification for recognition and enforcement of foreign judicial decisions/decisions of international commercial arbitration. The article examines the modern opportunities of commonly known methods of qualification by lex fori and lexcausae, and the prospects and advantages of the autonomous qualification grounded here. The method of autonomous qualification can be based on the law of treaties, acts of non-state regulation, sources of lex mercatoria. Most likely at the present time the application of the method of the autonomous qualification in the practice of international commercial arbitration, which corresponds to the recent trends. Transnational norms, the formation of which is actively conducted now, will have in the future a significant influence on the evolution of the process of legal qualification in private international law, especially in cross-border contractual obligations.