Tiesioginis imperatyvių teisės normų taikymas

Abstract

“Rules of immediate application” or “Full-conflicts-mandatory rules” are one of the institutions restraining effect of conflict rules. “Rules of immediate application” are applied irrespectively of the law indicated by conflict rules. These rules should not be identified as mandatory rules, which imperativeness does not indicate a necessity of direct application. Therefore, for the sake of clarity and dissociation, these two types of rules should have different names. When determining applicable law, foreign rules of immediate application must be considered as well as forum rules of immediate application.
This article provides a classification of mandatory rules, their theoretical background and extent of their direct application. Institution of rules of immediate application is dissociated from other rules that have similar purposes. Namely, the article analyses relations of the rules of immediate application with the public policy, evasion of the law and unilateral conflict rules. A possibility of immediate application of rules in positive conflict law of Lithuania was initially introduced in the new Civil Code of the Republic of Lithuania passed in 2000. Respective rules of the Code are similar to those of 1980 Rome Convention on the Law Applicable to Contractual Obligations. The similarity is not accidental. Lithuania aims to approximate its conflict law, especially concerning law applicable to contractual obligations, with rules established in the legal systems of the European Union countries. Thus respective rules of the Civil Code are construed according to commentaries of the above Rome Convention. Nevertheless, the article points out and analyses a number of essential differences between the regulation of the Civil Code and that of the Rome Convention.