Harmonization of conflict of laws party autonomy and the regulatory competition

Practice has shown that neither active international cooperation in the development of agreements directly regulating relations in the field of private international law (PIL), nor numerous acts of lex mercatoria can eliminate the need to resolve a conflict of laws issue. In this regard, it is not surprising that the modern lex mercatoria includes not only material norms, but also rules for choosing the applicable law. The “pinnacle” of the conflict of laws lex mercatoria at the moment are the Principles on Choice of Law in International Commercial Contracts, developed by the Hague Conference on PIL in 2015. The Hague Principles are a holistic, systematized document that codifies an independent integrated institution of PIL – the right of subjects of cross-border private relations to choose a competent legal regulator themselves. The Hague Principles cover in detail the main issues of the conflict of laws party autonomy and contain extremely important concepts and definitions. This study analyzes the potential of the Hague Principles in the process of regulatory competition from the point of view of two aspects: the non-binding nature of the document and the requirement of “internationality” of the commercial contract. When writing the article, the methods of comparative analysis and comparative jurisprudence, formal logic, literal and contextual interpretation were used. The article concludes that from the point of view of regulatory competition, the non-binding nature of the Hague Principles is their advantage, since “soft law” certainly wins in international trade. The Hague Principles are a set of best practices, compiled taking into account both international and national experience in regulating conflict of laws party autonomy. If the state perceives them as a role model, this will allow it to increase the competitiveness of its own law and the chances of choosing it as the most effective in relation to international commercial contracts. However, not all decisions of the Hague Principles appear to be positive from the point of view of regulatory competition. In particular, limiting their use only to commercial contracts with objective links to two or more legal systems reduces their competitiveness. In the modern world, parties to domestic transactions should also be able to use lex mercatoria acts as a neutral, balanced law, effective from the point of view of international transactions.