Abstract | Thus, the fundamental character of overriding mandatory provisions is the fact that they apply to a specific factual situation irrespective of the law applicable to the given relationship. It is because of the necessity of applying these norms that we often refer to 'directly applicable norms'. T hey are norms that directly govern the material aspect of the legal relationship, unlike conflict-of law rules, which only refer to the applicable law. T he legislative legal construction of mandatory (overriding mandatory) rules is in no way different than other provisions. The difference consists in their function, i.e. the given norm is recognised as fundamental and should apply independently of the conflict of law norm, which referred to foreign law as applicable law. It is necessary to realise that mandatory rules in the sense of private international law (overriding mandatory rules) and public policy are two different categories. A mandatory rule (overriding mandatory rule) by nature dictates its application and thus becomes part of applicable law within the meaning of the general set of all norms, which must be applied for the resolution of a specific dispute, regardless of the origin and force of such rule. In the case of the exception of public policy substantive law, this is the suspension of the effect of a specific foreign rule and its replacement with the effect of a domestic norm. Thus, while a public policy exception only corrects the specific effect of a foreign law used in a given contractual relationship, a mandatory rule (as overriding mandatory rule) replaces the otherwise applicable (foreign) norm and acts in its place.
I.Mandatory Rule as Directly Applicable Norm
2.01. The use of the term, directly applicable norm, may be justified in the interpretation of the expression 'mandatory rule' in the terms of private international law. However, it should be emphasised that while this term is certainly appropriate in the context of a specific legal order and, to a certain extent, in an international context, it cannot be used here in the EU sense. Clearly, this comes too close to the construal of such characteristic of secondary sources of EU law, i.e. their direct applicability. While such a comparison concerns two entirely different categories, it is necessary to bear in mind that this difference is clear at the national level or at the level of a specific language. But in the search for an acceptable compromise from the perspective of the multilingual character of the EU, it is a much more complicated question.
2.02. From a terminological point of view, it is not possible to regard the dilemma as a separate issue of interpretation of the expression mandatory rule alone, but it is necessary to understand it in the whole context of the terminological issue. In many laws (countries), there is no consensus whatsoever as to whether the term provision should be understood as legislation, i.e. as what used to be referred to in legislative terminology as a generally binding legal regulation (meaning a generally binding Act of law or piece of legislation), or conversely, in terms of a formalised imperative incorporated into such an Act, i.e. in the form of a specific provision. In addition, the approach to these two terms, with their two meanings, is that they are used in a somewhat scattered way. On a national level – and with an understanding of the relevant context – this does not usually present any problems, or at least not a significant problem. However, in a multilingual international setting, the differences in the meaning of the term provision become a significant problem.
2.03. Czech terminology is not unique in this respect. We do not have to look very far to find points of comparison. German terminology has a comparable problem; the term Bestimmung, i.e. a piece of legislation. Although for this particular meaning we may come across the formulation gesetzliche Bestimmung, meaning a piece of legislation in its entirety. There are also many examples of the single form of this German term (as the term Bestimmung without the adjective, i.e. not gesetzliche Bestimmung, but merely Bestimmung). It is quite surprising how often one comes across mistakes in the translation of these German formulations. And not just translations into Czech, but into other languages as well, where the translator is not capable of correctly determining the specific context and meaning. In addition to this, it is also necessary to draw attention to the fact that while the Czech expression předpis (provision) is usually used to mean a legislative (i.e. regulatory, public law) provision, the German term Bestimmung has, in addition to its public law (legislative) meaning, a private law meaning ( for example in the meaning of the general provisions, such as provisions of an agreement, etc.).
2.04. The English expression provision is used to express both of these aspects, that is, legislative public law matters and, in a technical contractual sense, private law matters. The prevailing meaning of this term is that of a formal part of a certain text, which, to a certain extent, is similar to the Czech term ustanovení. Even in this regard, it would be possible to identify distinct differences in meaning, which could only be fully dealt with while having a clear understanding of the specific legal order and how it works in practice, particularly in terms of the legislative aspect. While countless examples of this issue could be mentioned, this would not be particularly useful, nor would it be the reason for this linguistic excursion at this point in this commentary. T he main purpose of this short digression is to emphasise just how complicated it was to find an appropriate compromise formulation, which would be legally, politically and conceptually acceptable from a EU point of view (specifically as to content and meaning).
2.05. The term, directly applicable norm, which should be acceptable both from the common law perspective and from the civil law continental perspective, comes quite close to the meaning of overriding mandatory rule, particularly in the context of national legal orders that use this term. However, this can be contrasted with its linguistic effect in EU languages (particularly, but not only, in connection with other terms), similar to the problems contained in the meaning of the analogous term expressing a characteristic of a whole group of EU norms from the point of view of their legal force in relation to other sources of the legal order of Member States.
2.06. However, in respect of the term directly applicable norm, as a potential equivalent to the term overriding mandatory provision, this is a term that, at least from a practical point of view, could represent a qualitatively identical equivalent. It is often somewhat problematic to clarify in the context of common law, to persons with qualifications and/or practising in the area of common law (particularly in the English law), the content of the expression 'mandatory rule', sometimes even when dealing with highly-qualified colleagues. This is certainly not framed as a reproach. Although it may appear to be disdain for continental legal thought from the perspective of common law, this would be a form of argument, which has neither any real validity nor justification. However, it is a clear expression of the fundamental axioms from which common law emerges and on which individual legal orders adopting the standards of common law are founded. Such misunderstanding in discussions between exponents of continental legal thought, on one hand, and common law, on the other, often arises through ignorance or misunderstanding of these axioms. This might occur when, e.g. the person who, in the context of such hypothetical discussions, represents the continental approach (for example, even because of the fact that such a category is perceived in the classic continental approach to differentiate the private law sphere, on one hand, and the public law sphere, on the other), and who, entirely automatically and instinctively, uses the formulation of his/her own continental approach and the continental legal logic to explain what appears to be a simple or trivial legal problem. The author can confirm from much of his own experience that it is in these situations that the expression directly applicable or immediately applicable norm is a linguistic transfer, which allows this argument to be understood from the common law perspective in the context of the continental concept of a mandatory provision (in a specific situation).
2.07. This also corresponds to the French terminological idiom lois de police. We also encounter the point of view that there exists a qualitative difference between lois de police, which pursues a material, public and highly important interest, and lois d´application immédiate, with a broader meaning, where the jurisdiction of a specific state allows it to enforce a rule without a more compelling public law justification. This difference exists in a variety of cases. It should, of course, be emphasised that a foreign national is not always capable of correctly defining – let alone grasping and interpreting – a public law interest, which may appear to him to be unreasonable. Any attempt at evaluation or assessment as such, even with the greatest of efforts to be objective, is still an evaluation influenced by the subjective side, and thus an evaluation undertaken by specific individuals/ natural persons, irrespective of whether in the corresponding approved form, entails that they subsequently express such in their name (in the meaning of jurisdiction), in the name of the power vested in such person, on behalf of a legal person, or even on behalf of the state. Such an evaluation is always heavily influenced by the environment in which the given individual lives, in the way that this affects the conduct of his private and professional life, his knowledge of the foreign environment, language skills and understanding of the foreign mentality. It is submitted that an understanding of the public interest of a foreign state is always an individual matter, and is certainly a question of thorough knowledge of the local environment. As a typical example, it is possible to cite Russia, which allows choice of law in binding relationships according to its private international law. It does not allow choice of law, however, in the case of trading in respect of the ownership interest in a legal entity with its registered office in Russia. If we speak of the registered office of a legal entity, it is necessary to realise that this should be understood as the office of the registered person, i.e. in the sense of the incorporation theory, which is the tradition in more or less all of the countries of so-called Central and Eastern Europe. In their new forms, these countries are often stricter advocates of the incorporation approach to the personal [status] law of legal entities in this very distinct form than is the case in the countries that are the so-called traditional exponents of this approach, such as, for example, in Switzerland, as well as most of the common law legal orders.1
2.08. The conflict of laws approach to the exclusion of the choice of law for the disposition of property interests in relation to such legal entities is a rather strict procedure typical for (RF) (in a very similar form in Ukraine and some other countries of the former Soviet Union). Certainly, it cannot be denied that such a strict denial of the autonomy of the will of the parties to legal relations within the framework of transactions of a given kind is to a large extent unreasonable when, for example, the legal entity in question is not a legal entity with a certain significant state shareholding, or for a transitional period when the property was acquired in the process of so-called privatisation after the abandonment of the standards of exclusive common (state) ownership in the economic sector following the socio-political changes in these countries in the first half of the 1990s. On the other hand, the rejection of this Eastern European approach from the perspective of Western commentaries without a rigorous analysis of the reasons for this approach, represented, for example, by the international private law of Russia, is highly superficial and demonstrates the ignorance of a number of important social and therefore public policy implications in terms of a qualified public interest, since for many decades, and therefore with an impact on many generations, it was the place of professional activity of individuals in these countries (i.e. the so-called "privatisation") that played the role of the "private sector". The workplace has also played a significant social and socio-social role in these countries, where for a historically not insignificant period of time the role of the individual and the personality has often been artificially suppressed, and the sphere of professional employment (here in the sense of the workplace of employees of many companies) has also interfered quite strongly in personal life, and thus in something that is considered sacrosanct in the concept of traditional democratic values. This commentary is certainly not a platform for analysis of this historically subjective social phenomenon. It is simply an example of where the relevant conflict of law provision of Russia suppressing the freedom of choice of applicable law, from the perspective of many global commentaries, is considered a somewhat narcissistic2 expression of public power with the absence of a qualified public interest that such an imperative in the form of a mandatory provision could legitimise and justify. However, this view is expressed without most of these commentaries trying to understand the historically subjective circumstances, with these circumstances often having significant socio-political effects.
Footnotes
1 It is likely that, because this approach is not widespread, in the countries of Central and Eastern Europe few people are aware that, from the perspective of these countries, the incorporation theory in the countries that are traditional exponents of this approach (such as Switzerland, as well as many common law countries) should be considered highly inconsistent, to the point of being superficial
2 On this use of this term, the difference is defined, for example in Petr Radoaovský , Rozhodné Právo v Závazkových Vztazích z Mezinárodního Obchodu: Nutně Pou~itelné Normy, Výhrada Veřejného Pořádku (2003), available at: http://www.epravo.cz/top/clanky/rozhodne-pravo-v-zavazkovych-vztazich-z mezinarodniho-obchodu-nutne-pouzitelne-normy-vyhrada-verejneho-poradku-22523.html (accessed on 4 April 2023).
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