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Party Autonomy in Contractual and Non-Contractual Obligations

A European and Anglo-Common Law perspective on the freedom of choice of law in the Rome I Regulation on the law applicable to contractual obligations and the Rome II Regulation on the law applicable to non-contractual obligations


Maya Mandery

This study presents a comprehensive examination of party autonomy as provided for in the European Rome I Regulation and the Rome II Regulation. It follows an integrated method of analysis, whereby the principle of party autonomy as provided for in the Regulations is first compared with the pre-regulation position in Germany and England. This provides the basis for the subsequent critical reflection on the position of party autonomy in the Anglo-common law jurisdictions of Australia, New Zealand, Canada and Singapore. The study proposes that these European developments make an important contribution to the call for reform of the common law position concerning party autonomy in contractual, and more significantly, in non-contractual obligations.
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This thesis is the product of a series of serendipitous encounters with people who have changed the course of my academic career and it is a pleasure to thank them. First and foremost, my utmost gratitude to my supervisor Prof. Dr. Heinz-Peter Mansel, Director of the Institute of Foreign Private and Private International Law at the University of Cologne. I am indebted to him for his continual guidance, expertise and invaluable advice and it was an honour to complete my research under his supervision. I am most grateful for the financial assistance received from the Dr. Carl-Arthur Pastor-Stiftung, which enabled me to pursue this research. I also owe my deepest gratitude to Associate Professor Dr. Elsabe Schoeman from the University of Auckland who has been and continues to be my inspiration. Without her consistent support, both academic and personal, I would not have had the opportunity to undertake and successfully complete this study. I also gratefully acknowledge the generous funding received from the Faculty of Law, University of Auckland towards the publication of this book. Finally, I thank my family, friends and especially Thorsten, for the unfailing support they have provided me throughout the various stages of my research. I dedicate this with love to the most important people in my life – Timothy, my daughter Jada and my wonderful mother Christa.

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