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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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Part 3: Rome I and Rome II and the Procedural Treatment and Application of Foreign Law

Extract

Traditionally, national courts were primarily concerned with applying national law in order to resolve national disputes. However, thriving international trade, increasing cross-border transactions and the ensuing path towards the European harmonisation and unification of private international law has changed the traditional approach towards the status of foreign law in national courts. In particular, the unification of choice of law rules in the Rome I and Rome II Regulation further paves the way for an ever-increasing application of foreign law in national courts. The result is the growing need to give effect to foreign law where even in purely domestic cases foreign law may be applicable when parties have agreed on that law to govern their contractual or non-contractual obligations. Delicate issues arise concerning the pleading and ascertainment of foreign law, the most frequent questions being:610 How does foreign law enter the court? Once it is in court, what is the relationship between the law of the forum and the chosen foreign law? How is its substance and meaning determined and proved?

Part A will briefly address these questions exclusively in light of the operation of the parties’ choice of foreign law according to Rome I and Rome II. Part B will focus more specifically on the national procedural approaches taken to these issues in German and English courts. The comparative consideration of these questions will highlight that the procedural treatment of foreign law by English and German courts is inconsistent and inadequate and as a result has...

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