Pirtskhalava, H.D. On the issue of qualification of non-contractual trans-border obligations (on an example of the Russian Federation and Spain)

Abstract: The issue of qualification in international private law is fundamental. The doctrine of international private law provides that qualification is complicated due to the specific features of the international private law itself. In turn, complicated character of qualification of non-contractual trans-border obligations by the author is due to the absence of legitimate definition of noncontractual obligations, non-uniform character of this type of obligations, and appearance of new types. In XXI century the qualification of non-contractual trans-border obligations in Russia and in Spain has evolved. For example, in Spain there are provisions for the autonomous qualification of non-contractual trans-border obligations. In Russia the general quali- fication rules under the lex fori have not changed. However, based upon the Draft for the Amendments to the Civil Code of the Russian Federation some types of non-contractual transborder obligation (obligations based on inß iction of harm, obligations based on bad faith negotiations on conclusion of contract and unjust enrichment) due to their close relation may be classified as contractual obligations. Evolution of qualification of non-contractual obligations in the Russian Federation were inß uenced by the following tendencies: the development of the Russian legislation (in particular, Part VI “International Private Law” of the Civil Code of the Russian Federation), as well as the tendency for the harmonization of the Russian conß ict of laws norms with the conß ict of laws norms of the EU. In Spain evolution on this matter was based upon the uni- fication of non-contractual trans-border obligations in the EU under the EU Rome II Regulation.

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