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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

Series:

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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Part 2: Freedom of choice of law under the Rome II Regulation on the law applicable to non-contractual obligations

Extract

In 2007 the European Union adopted the Regulation on the Law Applicable to Non-Contractual Obligations, known as Rome II, in order to provide for the unification of choice of law for non-contractual obligations in the European Community. The most innovative rule to be introduced into choice of law for non-contractual obligations in the Rome II Regulation is the principle of party autonomy. It is innovative because it is a principle long established in contract, but is considerably less well developed in the area of non-contractual obligations; for a long time this principle had nothing to do with non-consensual obligations. The inclusion of it in the Rome II Regulation reflects a gradually increasing trend in contemporary conflict of laws to extend the principle from contract to torts, succession,304 matrimonial property305 and even divorce306 and maintenance307. A brief summary of the history of the Rome II Regulation will be followed by a detailed analysis of the principle of party autonomy established in Article 14 of the Rome II Regulation.

The EC Regulation on the law applicable to non-contractual obligations (hereafter referred to as the Rome II Regulation or Rome II)308 should be understood in light of the historical developments that have taken place within the Community.309 The Regulation belongs to a series of European regulations in private international law, established according to the competence provided for in Article 61 and 65 EC Treaty, with the view towards the unification of private international choice of law rules for different...

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