Open Access
Problems of the law choice and its limitations while EPC-contracts concluding
Author(s) -
Nataliia Nykytchenko,
Vladyslav Ostrynskiy
Publication year - 2020
Publication title -
časopis kiïvsʹkogo unìversitetu prava
Language(s) - English
Resource type - Journals
ISSN - 2219-5521
DOI - 10.36695/2219-5521.2.2020.38
Subject(s) - legislation , ukrainian , damages , arbitration , business , law , choice of law , law and economics , international arbitration , jurisdiction , political science , economics , philosophy , linguistics
Due to the rapid development of social relations in Ukraine, national legislation can`t keep up to regulate them properly, whichforce businesses to use the rules of foreign jurisdictions or the pro-forms of international specialized organizations to carry out the cont -ractual transactions more frequently. The article provides examples of how the complex contractual relations are governed in practiceand how the businesses are forced to protect its interests while entering into EPC-contracts.The authors have researched the emergence of the contract templates, which were created by International Federation of ConsultingEngineers (FIDIC) and the way to use such templates according to Ukrainian law. Also, the article analyzes application of certainprovisions of the economic and civil legislation, which are reflected in EPC-contracts. Individual cases that were considered by theInternational Commercial Arbitration Court at the Chamber of Commerce and Industry of Ukraine were analyzed as well.There is substantiated the opinion that regarding to provision of the contractual limitation of obligations for the actual losses feesand damages caused to economic entities as well as the possibility to freely use the international organizations pro-form in case whenits provisions do not contradict the imperative norms of the Ukrainian legislation and the principles of economic management inUkraine. Also, article analyzes how the choice of law can be made while concluding an EPC contract. The authors presented their theseson how the provisions of the EPC contract should be harmonized with the norms of national legislation.The authors support theory of Dépeçage to introduce a number of protective provisions, which include the existence of mandatoryrules in the legal system of a state, which would make it impossible to circumvent the law, and contain reservations about public order.This research shows that there is an opportunity to gain many advantages by the application of the theory of Dépeçage in EPC-cont racts.