Prohibition on Relying on Witnesses Testimony in Cases of Non-Compliance With the Simple Written Form of a Transaction in Private International Law

Abstract

Introduction: this article examines the question of whether the rule prohibiting reliance on witness testimony should be classified as a rule of procedural or substantive law (Item 3 of Article 162 of the Civil Code of the Russian Federation). Purpose: to explore the potential of various approaches to determining the legal nature of the aforementioned rule, including approaches adopted within specific foreign legal systems, and to critically assess the relevant aspects of law enforcement. Methods: the study was conducted using predominantly special legal research methods. In particular, the historical-legal and legaldogmatic methods enabled a structured examination of the evolution and content of the legal phenomenon in question. The author also employed methods such as the interpretation of legal norms and the methodology of formal logic. Results: in early Soviet legislation, the possibility of relying on witness testimony was classified as referring to substantive law. Subsequently, in the USSR, the requirement for foreign economic transactions to be in writing acquired the character of directly applicable rules. Currently, this rule has a substantive-law character within cross-border relations. Separately, the author draws attention to the advisability of incorporation into Russian legislation of provisions stating that the application of a rule of foreign law cannot be restricted solely on the grounds that this rule is of a public-law nature, by analogy with Item 4 of Article 1194 of the Model Code of the CIS countries. Conclusions: Russian courts should apply foreign rules regarding the admissibility of witness testimony where Article 1209 of the Civil Code of the Russian Federation so provides.