IMPLIED CHOICE OF LAW AGREEMENTS: A REVIEW OF JUDICIAL AND ARBITRAL PRACTICE

Basic forms of implied choice of law agreements (following from the terms of the contract or the circumstances of the case) are under analysis. Admissibility of an agreement on substantive law made in course of judicial or arbitral proceedings, including cases, in which arrangement in «procedural» form nullifies or amends a previous written agreement, is grounded. On the example of a court case in which the choice of the applicable law was established, provided that the second party did not participate in the process at all, the author substantiates the importance to reveal the will of both parties and in the absence of certain information about it – the necessity for the court to determine the applicable law by means of conflict of laws rules. Special attention is paid to the acknowledgement of an implied choice of law agreement as a result of a close connection between the first legal relation, for which the choice has not been made, and the second between the same parties, for which they have chosen the applicable law. On the basis of judicial practice and explanations of the Plenum of the Supreme Court of the Russian Federation concerning the application of norms of private international law, the conclusion is made on the liberal approach of the Russian courts to the implied choice of law agreements. It is stated that the basis of this approach is the idea that choice of law by the parties, taking into account their material legal interests, is preferable compared to the choice of law by the court, formally based on the conflict of laws rule; and the evolution vector of autonomy of will principle in private international law is determined by the necessity to provide legal environment corresponding to the needs of participants to international private legal relations.