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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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Part 4: Party Autonomy in the Common Law: A Cross-NationalComparison with the Rome I and Rome II Regulations


At common law, the rules of private international law to determine the law to be applied to an international contract were developed by judges.728 Two connecting factors were considered appropriate to govern the law of a contract: the lex loci contractus (the law of the place where the contract was made) and the lex loci solutionis (the law of the place where performance of the contract was due). However, both formulations were unable to resolve difficult issues. Not only would it be difficult to identify the lex loci contractus in cases where negotiations are carried out across international borders, it could have also been fraudulently chosen or have little connection with the substance of the contract. The lex loci solutionis could cause difficulty if the place of performance was not known at the time of contracting or, if the contract was bilateral and performance was to be carried out in more than one country. It would be highly impractical to have the parties’ rights and obligations governed by different laws.

These rules underwent a process of continual development and refinement through case law; and, from as early as the 18th Century, English common law courts sought to move away from rigid criteria and recognised party autonomy as a general principle in contract choice of law.729 Early decisions referred to the law to which “the parties had a view”,730 or the law “the parties intended that the transaction should be governed…that they have submitted themselves in the...

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