ON THE CLOSEST CONNECTION PRINCIPLE AS A CONFLICT OF LAWS RULE FOR THE CONTRACT IN RESPECT OF REAL ESTATE

The article considers a specific conflict of laws regime for the contract in respect of real estate. The analysis of doctrinal interpretation and judicial practice concerning para. 1 Art. 1213 of the RF Civil Code allows the author to conclude that the closest connection principle, established as a conflict of laws rule for the contract in respect of real estate, is a firm rule of lex rei sitae. The analysis of the legislative practice of the EU, member states of the CIS and Switzerland shows that lex rei sitae is stipulated exactly as a firm conflict of laws rule. The author claims that, for the contract in respect of real estate, the closest connection principle is implemented not on the level of law enforcement (the application of a flexible conflict of laws rule) but on the level of lawmaking (the stipulation of a lex rei sitae conflict of laws rule). The author pays special attention to the shortcomings of a special regime of para. 1 Art. 1213, which was not amended within the reform of section VI of the RF Civil Code in 2013 under the influence of the 1980 Rome Convention, whereas a general regime of contract relations was transformed under the influence of the Rome I Regulation. Therefore, the author suggests to exclude the closest connection principle as a basic conflict of laws rule from para. 1 Art. 1213; to replace it by a firm attachment of the contract in respect of real estate to the law of the state where real estate is located; and to spread the effect of escape clause of para. 9 Art. 1211 to the indicated contract.