O desenvolvimento do principio da proximidade no Direito Internacional Privado e sua presença no Brasil

Abstract

Conflict of laws rules, present in modern private international law systems derive from a neutral rule model, elaborated by Savigny in the 19th century. This model was constructed from the identification of the seat of the relationship and does not necessarily attend to a concern about the material result that the applicable law could provide. However, it resulted unsatisfactory in cases whose factual elements were much more connected to another legal system, different from the one indicated by the conflict rule. This revealed the necessity to rethink the conflict of laws system. The present work aims to demonstrate the development of the idea of proximity from its classical conception to the present day, including how it has been invoked recently in Brazil. With an inductive and historical methodology, the work is divided into four parts. In the first one, it will be verified how the idea of neutrality in the norms of conflict according to the Savigny’s model was originally developed. In the second part, we will see the criticism that this classic method of conflict has received from American doctrine. Thirdly, the work will show how the principle of proximity served as a response to such criticism, and was incorporated in international instruments and domestic legislation. Finally, it will be shown how the principle of proximity has been invoked in Brazil in some judicial decisions, although is not present in the legislation.