Public Policy (Ordre Public), Mandatory Norms and Evasion of Law in Ukrainian Private International Law
pages 149 - 159
ABSTRACT:

The article considers three institutions in Ukrainian private international law: public policy (ordre public), evasion of law, and mandatory norms. According to the author, public policy (ordre public) encompasses: 1) the fundamental, most important, principles of Ukraine’s law, and first of all its constitutional, private law, and civil-procedural principles; 2) generally accepted principles of morality, upon which the Ukrainian legal order is based; 3) the legitimate interests of Ukrainian citizens, legal persons, and the state, the protection of which is a major task for Ukraine’s legal system; and 4) the generally recognized principles and norms of international law, including the international legal standards of human rights. The author explains that by mandatory norms, are meant the most important norms of a state and that the source of these norms is public policy (ordre public) which could be set only by Ukrainian legislation. He recommends proving the existence of mandatory norms, which challenges application of the law, chosen by the parties, in each case. He describes the use of the “evasion of law” concept in practice as having the following features: as having the presumption that the choice of applicable law by the parties of a concrete transaction was made in good faith; that the opposite (i.e. that the choice of applicable law was not in good faith) needs to be proved in each concrete case by the court; that the mechanism of “evasion of law” is intended to be an instrument in the hands of a court (judges) solving conflict issues on an ad hoc basis. He then concludes by stating that all three institutions are closely intertwined and only the future practice of Ukrainian courts will demonstrate what they are actually understood to be.

keywords
public policy
private international law
mandatory norms
evasion of law
about the authors

Oleksandr Merezhko – professor, Dr hab., head of the Chair of Law at the Kiev National Linguistic University, professor at the Andrzej Frycz Modrzewski Krakow University, and author of numerous works devoted to the issues of public and private international law.

e-mail: amerezhko@yahoo.com