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

This study focuses on the extent and scope of parties' freedom to choose the substantive law to govern cross-border contractual disputes, and developments extending this right into the area of non-contractual disputes. It examines party autonomy as provided for in the European Rome I Regulation and Rome II Regulation and the law applicable to contractual and non-contractual obligations. It assesses the scope for party autonomy within the tort and contract choice of law rules of these common law systems. It considers party autonomy in the Rome I Regulation and Rome II Regulation, including the history of the Convention on the law applicable to contractual obligations and the background developments leading to enactment of the Rome I Regulation, the central position given to party autonomy in Article 3 of the Regulation, and the limitations on the parties' freedom to choose the governing law, as well as the possible justifications for granting a freedom of choice, the rationales underlying the rise in the status of party autonomy and the acceptance of the principle within the field of non-contractual obligations, the primary choice of law rule in Article 14 dealing with the principle of freedom of choice of law, and the requirements for a valid choice of law and the inclusion of limitations on the parties' freedom to choose the governing law. Later sections address the procedural treatment and application of the parties' chosen foreign law according to the regulations, including introduction of the chosen law in national courts and the relationship between the law of the forum and the chosen foreign law, and the procedural approaches in German and English courts; the English common law origins and development of the principle of party autonomy in light of European developments, and the jurisdictions of Australia, New Zealand, Canada, and Singapore and the conflict choice of law rules for contractual and non-contractual obligations in each legal system; and how the regulations have elevated the principle of party autonomy, how there is room for divergent approaches in national courts, and how the regulations provide a platform for reconsidering the common law approach to party autonomy. Annotation c2014 Ringgold, Inc., Portland, OR (protoview.com)

Maya Mandery holds an LL.B. (hons) from the University of Auckland (New Zealand), an LL.M. of the University of Wurzburg and is Dr. iur (University of Cologne). Currently, she is a lecturer at the Faculty of Law at the University of Auckland.