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Super-imperative rules as remedies for weaknesses of contract
Author: Gerak Alina Aleksandrovna, South Ural State University
Nowadays, two basic approaches to this relevant issue have been developed in the court practice and doctrine of different countries. According to the first approach, rules aimed at protecting the weaker side could be classified as super-imperative rules.
So, in the opinion of S. Vrellis, super-imperative rules refer to such regulations that protect consumers, workers and renters [1, 87]. While justifying this position, researchersemphasize the extreme difficultyto define which interests (public or private) the norm is aimed at.Therefore, this criterion cannot be the basis for the distinction of super-imperative rules and conventional imperative prescriptions that protect the weaker side of the contract. We can agree with this position. Indeed, almost any rules aimed at protecting the weaker side in one way or another promote important socio-economic interests of the government.
Second argument of the supporters of this approaches is to be noted as well.Prior to the adoption of Regulation (EC) of the European Parliament and of the Councilon June 17, 2008 № 593/2008 «On the law applicable to contractual obligations» (further – RomeIRegulation)[2, 282], a legal definition of such rules didn’t exist.
At the same time the official report of the developers of the Rome Convention of 18 June 1980 «On the law applicable to contractual obligations», which operated before the adoption of the Regulations, provided the norms to protect consumers as an example. On the basis of this report proponents of this approach came to the conclusion that there was a possibility to classify super-imperative rules and other norms as protection of the weaker side.
However, in recent years, both in domestic and in foreign doctrine the opposite approach has become increasingly common. In the works of German researchers there prevails an opinion that among super-imperative rules there are only rules which primary purpose is to protect public interests of the state. This excludes the possibility of simultaneous use of special collision norms designed to protect consumers and workers (art. 6 and 8 the Regulations Rome I), and the super-imperative rules [3, 200]. In opinion of German specialists, super-imperative rules may be considered as a norm that protects public interests of the government. Accordingly, if the main purpose of regulations is promotion of public interest, they are recognized as super-imperative rules. If the main purpose of the provision is – weaker side protection, we deal with the usual imperative instruction.
To sum up, now the urgent issue of possibility of classifying super-imperative rules as prescriptions designed to protect the weaker side, is the subject of lively discussions, both in domestic and in foreign doctrine of private international law. The difficulty to classify super-imperative rules as norms aimed at protecting the weaker side is primarily due to the uncertainty of the concept of super-imperative rules [4, 10]. The reason is that the definition contained in the Regulation Rome I, establishes only the most common features of such rules; which allows the States which adopted these rules to classify them as it required. Therefore, we cannot rule out that certain provisions aimed at protecting the weaker side, will be recognized as super-imperative rules in a particular state.
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