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'Party Autonomy' in international contracts: from the makings of a myth to the requirements of global governance

Abstract : The entry into force of the new Rome I Regulation on the law applicable to contractual obligations (EC n° 593/2008) provides the opportunity to reflect on the makings of the myth of party autonomy (the empowerment of private actors to choose the governing law, and indeed the competent forum for dispute resolution). This article aims to shed light on the way in which the law has accredited freedom of choice as the foundational principle of a whole parallel world of private transnational ordering. The interests thus served, ostensibly those of a purported community of merchants, do not necessarily encourage adequate regulation of cross-border economic transactions in the field of trade or investment. Since it would be unrealistic and indeed to an extent undesirable to challenge the inexorable trend towards contractualisation of private international law, it is suggested that a better path would be to consider that the evident lack of accountability and transparency in the legal principles governing private economic activity beyond state borders might be filled by turning to emerging principles of good governance, designed to satisfy the requirements of democracy in (equally necessary but equally problematic) public decision-making processes now taking place in supranational institutional settings without government.
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Submitted on : Friday, November 5, 2021 - 12:19:20 AM
Last modification on : Monday, February 14, 2022 - 4:20:02 PM

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Horatia Muir Watt. 'Party Autonomy' in international contracts: from the makings of a myth to the requirements of global governance. European Review of Contract Law, De Gruyter, 2010, 6 (3), pp.250 - 283. ⟨10.1515/ercl.2010.250⟩. ⟨hal-03415649⟩

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