Автономия воли в регулировании трансфера права собственности: сравнительный анализ

Abstract

The absence of a unified material legal regulation of the transfer of property rights is determined by the presence of fundamental contradictions in the approaches of various legal systems to this issue. The lex rei sitae connecting factor is not the optimal way to regulate the transfer of ownership of movable property in cross-border transactions. Conflict mobile is one of the cases, when determining the statute of a movable property by the law of its location is difficult and leads to an unfair result. The right of the parties to a contract in cross-border relations to freely choose the legal order regulating transfer of ownership is one of the ways to overcome the disadvantages of conflict-of-laws regulation of the transfer of ownership. However, such a manifestation of the party autonomy is not allowed in all legal systems and is not a generally accepted approach. The purpose of the study is to reveal the difficulties of the legal order in case of implementation of the party autonomy in the sphere of transfer of property rights, as well as to identify ways to overcome them. The party autonomy is practically analyzed on the example of the legal systems of Russia and CIS, Switzerland, the Netherlands, China. The choice of the legal order applicable to the transfer of ownership is not an extension of the scope of the contract statute, but represents party autonomy in relation to the real statute. Consequently, party autonomy interferes with the specific issues of property law. The analysis shows us that the party autonomy with certain restrictions is permissible for regulating transfer of ownership and serves an instrument for overcoming difficulties caused by the use of lex rei sitae connecting factor in a number of cases. However, allowing parties to an international transaction to choose the legal order applicable to the transfer of ownership raises the question of the effect of the choice against third parties. The article outlines ways to solve this problem.