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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

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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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Introduction

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of the chosen law in national courts and the relationship between the law of the forum and the chosen foreign law. Section B focuses more specifically on the national procedural approaches taken to the introduction and ascertainment of foreign law in both German and English courts.

Part IV provides a critical reflection on the English common law origins and development of the principle of party autonomy in light of European developments. More specifically, a cross-national examination of party autonomy in the common law jurisdictions of Australia, New Zealand, Canada and Singapore is given. The conflict choice of law rules for contractual and non-contractual obligations in each legal system are dealt with in turn. For contract, the reception and application of the English doctrine of the proper law in each common law jurisdiction is set out. For non-contractual obligations the general English rule of double-actionability and its exception, followed by its reception and application in each common law jurisdiction is presented. Subsequently, the narrow scope for party autonomy within the common law approaches is summarised, followed by the suggestion of four general approaches that may accommodate party autonomy.

Part V summarises the conclusions drawn in the foregoing analyses and reflects upon these. From this three main themes emerge. The first is that both the Rome I and Rome II Regulations have clearly elevated the principle of party autonomy to the central choice of law rule within European private international law. More specifically, the Rome II Regulation has...

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