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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 5: Conclusions

← 238 | 239 →Part 5: Conclusions


Party autonomy puts the will of the parties at the centre of the search for the applicable law. It is not the belief that a territorial connection should be the determining factor, nor 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. It is essential that those involved in cross-border business transactions have the confidence of knowing the possible legal consequences of their commercial activities. Both the Rome I and Rome II Regulations have elevated party autonomy to be the central rules within European private international law, reforming choice of law to the extent that contractual and non-contractual obligations can be dealt with in the same way, and thereby promoting certainty and predictability. In terms of a change brought about by the Regulations, the inclusion of party autonomy in the Rome I Regulation does not presented a significant modification of the pre-Regulation approaches taken in Germany or England. Instead, the Regulation further promotes a more uniform approach to be taken to issues in choice of law in contract, including formation, formal validity, inferring a choice of law and the restrictions to be placed on the parties’ freedom to choose the applicable law. In contrast, the innovative inclusion of party autonomy in the Rome II Regulation does present a significant change to choice of law in non-contractual obligations. It signifies an increasing trend towards the recognition of the...

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