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Publication Detail
Choice of Court and Choice of Law Agreements: Freedom of Freedom of Contract
  • Publication Type:
    Chapter
  • Authors:
    Mills A
  • Publisher:
    Hart Publishing
  • Publication date:
    06/08/2020
  • Editors:
    Davies P,Raczynska M
  • ISBN-10:
    1509930493
  • ISBN-13:
    9781509930494
  • Status:
    Published
  • Book title:
    Contents of Commercial Contracts Terms Affecting Freedoms
Abstract
In private international law, party autonomy is now very widely accepted in respect of both choice of court and choice of law agreements. This development has been justified (for example, by Nygh and Symeonides) on the basis that it reflects the parties’ freedom of contract, and restrictions on party autonomy in private international law have consequently been viewed simply as restrictions on that freedom of contract. This chapter argues that such analysis makes a category error. Contractual party autonomy varies between different legal orders. The scope of contractual party autonomy is determined by which law is applicable, which is itself in part a product of choice of law rules and in part determined by which court has jurisdiction. Party autonomy in the context of choice of law and choice of forum may be part of determining that applicable law, and may thus determine which rules of freedom of contract apply. Party autonomy in private international law is thus a freedom to choose between different freedoms – the diverse degrees of contractual autonomy available in different national systems of private law. This has several important implications. First, the justifications for private international law party autonomy must be different from the justifications for contractual party autonomy. Second, while contractual party autonomy is limited by the public policy or mandatory rules of a national system of contract law, private international law party autonomy is distinctively limited by the public policy or mandatory rules of private international law. Private international law party autonomy serves a different function than contractual party autonomy, and the underlying objectives of private international law suggest that the restrictions on private international law party autonomy should be narrower than the restrictions on contractual party autonomy. Third, as a consequence of the distinctiveness of private international law party autonomy, a further careful distinction must be drawn between a choice of law and an act of incorporation by reference of rules of foreign (or non-state) law.
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