Kuklieva K. Pre-contractual obligations in private international law.

The dissertation is devoted to the research of the pre-contractual obligations in private international law. The paper investigates the history of the emergence and formation of the culpa in contrahendo doctrine, the role of the principle of good faith in establishing of cross-border pre-contractual obligations, issues of legal qualification and the conflict of laws regulation of pre-contractual obligations. Cross-border pre-contractual obligations are defined as based on the principle of good faith private obligation complicated by a foreign element, emerging when entering into negotiations on cross-border transactions in which the proper conduct of parties directly aimed at the contract or contributes to its conclusion (so-called regulatory pre-contractual relations) and improper conduct of parties until the contract is recognized as unfair and causes the liability under the contract (so-called protective pre-contractual relations). Regulatory pre-contractual relations arise from lawful action; protective pre-contractual relationship is the result of the transformation of the regulatory pre-contractual relations due to their violation and aims to restore the original state (pre-contractual liability arising from unfair conduct during the negotiations for the conclusion of cross-border transactions). From the view of documenting, the study singled out two types the pre-contractual relations obligations: 1) the obligations from the unformed pre-contractual relations; 2) obligations under previous agreements. The results of the study give grounds to state that as a result of differences between national laws complete unification of legal regulation of contractual relations is unlikely, so a conflict of law choice can not be avoided, and it remains the main method of legal regulation of cross-border pre-contractual relations. The feasibility of applying the status of the final contract in pre-contractual obligations is substantiated – it allows one law to subject closely related to the relationship which provides consistency of regulation. This solution seems appropriate, given the content of the relationships. In fact, both pre-contractual and contractual relationships are obligations that include specific duties and powers to demand their fulfillment, which link certain individuals. On the other hand, it is proved that signing a preliminary agreement that defines the conclusion of the final agreement forms an implicit choice of law by the parties. The statute of cross-border pre-contractual obligations is determined on the basis of lex causae, which may be: a) the law chosen by the parties relationship (lex volunatis); b) the law of the country where the party of characteristic performance has residence or place of business; c) the law of closest connection; d) lex loci delicti commissii or lex loci damni. The paper singled out two types of pre-contractual responsibility: 1) the type of contractual liability arising from the breach of obligations freely accepted by one party befor the other party as a result of the negotiations preceding the conclusion of the contract; 2) non-contractual liability type that does not arise from the violation of the freely accepted obligations. The pre-contractual liability is subject to a contractual relation conflict norm – lex contractus in negotio (or the law of contract during negotiations) which serves one of two laws: 1) lex contractus finalis (or final contract law) – if the contract was signed; or 2) lex contractus putativus (or alleged contract law) – if the contract was not signed. Further reform of the civil legislation of Ukraine should include the concept of unfair negotiations in the norms of the Civil Code of Ukraine, the obligations to negotiate in good faith, as well as the obligations and mechanism for compensation for damage caused by the violation of the good faith requirements in negotiations to conclude an agreement, regardless of their outcome. At the same time, it would be extremely useful to use the best practices of foreign countries, which have long enshrined the mechanism for regulating pre-contractual relations in their national legislation.