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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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← 16 | 17 →Introduction


The principle of party autonomy, in the sense of freedom of choice, or the self-arrangement of legal relations by individuals according to their respective will, broadly encompasses the idea that parties should be free to choose the law to govern their relations and the forum to adjudicate any disputes that might arise between them. It is one of the leading principles of contemporary conflicts theory and forms the cornerstone of the intersection between international commerce and private international law. In cross-border litigation, one of the key questions a court will be required to solve is how to determine the applicable law. This study focuses on the extent and scope of the parties’ freedom to choose the substantive law to govern their cross-border contractual dispute and in particular, the significant developments extending this right into the area of non-contractual disputes, an area previously thought to be unable to provide for party autonomy.

In contrast to rules, which generally seek to connect the contract or tort to the law having a connection or most substantial relationship, the principle of party autonomy puts the will of the parties at the centre of the search for the applicable law. It is not longer the belief that a territorial connection should be the determining factor or that the objectively ascertained choice of law identified through objective connecting factors should be at the forefront, but rather that the will of those involved should be determinative of the applicable law. Parties are given the freedom...

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