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Journal of Foreign Legislation and Comparative Law
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Dzhimbeeva D.V. Emerging Approaches to Conflict Regulation Obligations of Unjust Enrichment in the Russian Legislation

Abstract: The article considers the changes to Section VI of Civil Code of the Russian Federation “International private Law” in respect of unjust enrichment obligations. The author analyses choice of law provisions on unjust enrichment contained in Reglament “Rome II” and undertakes a comparison with Russian conflict of laws regulation system (articles 1223 and 1223.1 CC). The article outlines the advantages and disadvantages of the novelties of choice of law rules in unjust enrichment. Based upon on the analysis of the Reglament, the author ascertains the modern tendencies of conflict-of-law regulation in condictio obligations (application of party autonomy, influence of the most closest connection principle). Taking into account the tendencies as specified, there are some modifications to be proposed for introduction in current Russian choice of law rules. The methods of research which are used in the article include both general scientific (dialectic, system, structural functional methods as well as techniques of formal logic- analysis, synthesis, induction and deduction) and private scientific (historical, legal comparative, formal juridical, linguistic, sociological, juridical technical) ones. Based upon on the comparative analysis of Russian choice of law rules in article 1223 of the Civil Code and of the Reglament provisions and subject to the tendencies of conflict-of-law regulation in the area of unjust enrichment the author has made the following conclusions: – on necessity of “lex causae condictionis” as the main connecting factor of choice of law rule; – on addition of article 1223 of the Civil Code by the law of country to which the unjust enrichment obligation is most closely connected as a subsidiary choice of law rule together with the current choice of law norms; – on non-possibility of application of traditional approach on the basis of “rigid” connecting factor addressing to the law of place of unjust enrichment to unjust enrichment cases in the sphere of electronic payments. The most optimal approach in such cases is to apply the law of most closest connection with a wide range of criteria not only by subject of relationship, but by place of action or circumstance causing unjust enrichment.


Keywords:

unjust enrichment, tendencies of conflict-of-law regulation, changes of the Civil Code, international private law, choice of law rules, reglament “Rome II”, most closest connection, party autonomy, differentiation of connecting factors, flexibility of choice-of-law regulation.


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