Odstupanje od redovne primene kolizionih normi
Authors: Damjanović Biljana , Čolović Vladimir 
Published: August 2023

Private law relations are a very dynamic category of legal relations, and the situation becomes even more complex if they are not purely domestic. The foreign element not only makes these relations more interesting, but also raises many questions. The main dilemma is how to resolve a specific problem if at least two countries are interested in applying their national law. How to resolve such conflict between countries, i.e. the conflict between laws? What criteria should point us towards the solution? The simplest way would be if these relations could be resolved directly, the same as when dealing with domestic situations. The technique of direct choice of the rule to be applied to resolve the corresponding problem is undoubtedly a less complicated method to reach a solution. However, at the current level of development, we can hardly imagine that there would be uniform solutions in the area of family, inheritance, property, contract law... Of course, this does not mean that consensus in certain segments has not been reached. On the contrary, countries are very successful in agreeing on numerous individual issues and these agreements result in bilateral or multilateral conventions. However, a global compromise is still a utopia, and the resolution of private law relations with a foreign element lies in the technique of their indirect regulation. This is achieved through the application of special rules, called conflict of laws rules, and their task is not to give us a direct solution to a specific problem, but to light the way towards the law whose rules would give us a solution. Therefore, conflict of laws rules are a sort of guidepost that becomes necessary at the moment when we come to the conclusion that the relations we are resolving include a foreign element, and when at least two countries are interested in having their rules be the ones that will give the final answer to the situation at issue. We will resort to the conflict of laws technique when we see that a foreign element has interfered in a private law relationship, regardless of how it is manifested in the specific case. If a relationship involves an entity characterized as foreign, or the subject matter of the relationship is located abroad, or perhaps the obligation is to be fulfilled in a foreign country – those are all signals that we have left the field of domestic law and that the conflict of laws rule should be consulted, in order to reach a final resolution of the private law relationship with the foreign element through a decisive fact contained in such rule. In this way, the judge faces an undoubtedly more difficult task, especially if the conflict of laws rule leads him in the direction of foreign law. The conflict of laws rule is aimed at directing the judge to the law through which to resolve the private law relationship with a foreign element. Its two-component structure allows the realization of this function. First, we will classify the facts of the specific case under the appropriate legal category, and then, with the help of the connecting factor as the decisive fact, we will arrive at the applicable law. Therefore, after qualifying a particular legal matter, we are able to activate the connecting factor and then apply the substantive law that it pointed to. Which connecting factor would be identified for specific categories of relationships is a matter of the legal policy of each legislator, and therefore there are differences in terms of main connections of certain categories in different countries. There are also certain differences in the concept of the method in which the conflict of laws rules are applied and the understanding of foreign law. We have provided answers to numerous questions, such as whether the application of conflict of laws rule is of an imperative nature, or whether it is possible to turn a blind eye to the foreign element; whether the application of foreign law is mandatory, or the will of the parties can influence the process of its application; whether there are situations when foreign law will not apply, and if the answer is affirmative, what would be its substitute. However, the main task of this research was to answer the question of whether we must obey the conflict of laws rule in each case, i.e. whether we must always apply the substantive law it points to? Are there cases when we can deviate from the regular application of the conflict of laws rule? By prescribing the imperative application of conflict of laws rules, the legislator also agreed to the application of the laws they point to, but are there any exceptions to the rule that foreign law determined in such manner, on the basis of connecting factors as reliable indicators of the legitimate interests of the country, should be applied? The answer to this question is affirmative, because there are definitely situations in which deviation from the direction suggested by the conflict of laws rule is justified. The first form of deviation from the regular application of conflict of laws rules is the case of circumvention of the law, which occurs as a simple consequence of changing the connecting factors. Namely, by artificially creating or changing the fact that represents the connecting factor of a conflict of laws rule, the party wishes to divert its direction in order to apply another law and not the one that would otherwise be applicable, and in that way achieve certain interests, which otherwise could not be achieved. The main goal that the party has in mind is to avoid the application of a less favourable law and to apply another one, according to which achieving the desired effects is allowed. Fraudulent behaviour of the parties needs to be sanctioned, by deviating from the application of the conflict of laws rule in the manner dictated by the newly created circumstances and applying the law to which the connecting factor would indicate if there had been no manipulation. By sanctioning the fraudulent circumvention of the law, we actually ensure the correct application of the conflict of laws rule in relation to the criterion that the legislator considers the most relevant. The next type of deviation from the regular application of conflict of laws rules is reflected in the general principle of international private law, called renvoi. This phenomenon comes from the fact that by using conflict of laws rule as an indirect way of resolving private law relations with a foreign element, we actually come to the situation of applying the applicable law of a foreign country, which means not only its substantive rules, but also its conflict of laws rules. In this way, we actually hear the position of foreign legislation on a specific legal matter, and then we either go backwards, in the direction of the domestic law to which the foreign law refers, or further, in the direction of some other foreign law to which the conflict of laws rule of the first-referred law refers. It is therefore a very complicated intellectual operation, which complicates the process of arriving at the applicable law. The manner and extent of application of foreign law in a specific case will depend on the position of both domestic and foreign law regarding the acceptance of the principle of renvoi, in particular taking into account the fact that, by applying the qualification, foreign law should be applied in the manner applied by the court of the foreign law in question. When prescribing conflict of laws rules, we also accept the application of foreign law, assuming that it is the one most closely related to the specific case. Bearing in mind that, as we have seen, conflict of laws rules are prescribed not for individual cases, but for certain categories of relations, we may find ourselves in a situation where the connecting factor points to the application of the law of the country whose rules are contrary to the basic principles on which the domestic country is built. It is precisely for these reasons that the principle of public order allows us to deviate from the regular application of the conflict of laws rule and not to apply thus established applicable law. The most widely accepted point of view is that, instead of foreign law which is contrary to the public order of the forum, domestic law should be applied. This is for the reason that, when we have established the conflict of the applicable foreign law, we cannot rest there and leave the case unresolved – we must find a substitute, and it is reflected precisely in the application of the domestic law. In any case, the deviation from the regular application of the conflict of laws rule through the use of the principle of public order must not be interpreted too broadly. The intervention of this clause must be reduced to the extent that is reasonable, and only in cases where foreign law would be an actual threat to the domestic system. Changed circumstances are not without significance for the correct application of the conflict of laws rule. In this sense, we provide answers to the questions of how to apply the applicable law in a situation when the conflict of laws rules themselves change, when the content of the otherwise applicable law changes, or when there is a change in sovereignty. All these changes have implications in terms of determining the applicable law and there are definitely grounds to classify them in the group of other principles used as a deviation from the regular application of conflict of laws rules. Although there are authors who refer to the previously described legal and factual situations as adjustments to conflict of laws rules, we believe it is more appropriate to say it is a deviation from the regular application of conflict of laws rules, for the reason that in all these cases we do not make any adjustments to the rules. In essence, we depart from the rule that foreign law indicated by the conflict of laws rule of the forum must be applied, and in each of the described cases we do so for completely different reasons. Also, the consequences of deviations are completely different, which is another reason not to call them adjustments. Only in the case of the principle of the circumvention of the law, we could, in a way, speak of adjustment to the conflict of laws rule, because the deviation from its regular application, in a situation where the parties try to circumvent the law in a fraudulent way, consists in its adjustment by the court, and the application of the law that would have been applicable if there had been no manipulations in the conflict of laws domain.