ABSTRACT
Critical to the success of dispute resolution in cross-national civil and commercial matters is the level of freedom permitted by conflict of laws rules. If the rules lack reasonable balance, tend to be ‘elusive’ and rather ‘theoretically unresolved’, then the very essence of the rules are impeded, constantly frustrated, become necessarily defunct, and the result simply ‘uncertainty on the horizon’. To achieve certainty requires that conflict rules be known, clear, precise, stable, certain and predictable as regards their effects. To achieve predictability requires that contracting parties be sufficiently autonomous and free to be definitive as to the selection of the choice of law and/or applicable law to govern their contractual obligations.
To this end, the EU in 1991 adopted the Rome Convention on the Law Applicable to Contractual Obligations (hereafter ‘Convention’), which at present is superseded by the EC Regulation No 593/2008 (hereafter ‘Regulation’), ‘to improve the predictability of the outcome of litigation [and] certainty as to the law applicable’, so that where parties have not made a choice as to governing law or that it was incorrectly done, there is guidance to that effect. Recital 11 of the Regulation provides that the freedom of parties’ choice is the ‘cornerstones of the system of conflict-of-law’ while Article 3 goes further to provide, in the spirit of primacy of contract and party autonomy, that a law once chosen shall govern a contract and the issues subsequent.
Flamboyant as these commitments are, and considering that courts have sometimes ignored the intentions of parties to apply what they deem more appropriate to the parties’ transaction, it is important to examine and analyse to what extent the rules in the Convention/Regulation offer legal certainty and predictability via the party autonomy doctrine, and, whether in allocating jurisdiction these rules are worth the weight in gold or dime a dozen. The party autonomy doctrine from the English and American perspective are first briefly examined. The EU jurisprudence is then critically assessed, focusing on issues relating to absence of choice, mandatory and or overriding rules, contracts involving ‘weaker parties’, and how they generally affect legal certainty and predictability. The discussion dwells chiefly on the Regulation, although prior law is invoked where necessary.
Abdul Nassir Mukhtar, Zein, Party Autonomy Principle in the Rome Convention 1980 and Rome I Regulation (Regulation (EC) 593/2008) Texts – Do They Detract from the Need for Certainty and Predictability in Terms of Allocating Jurisdiction in Contractual Matters? (July 2, 2018).
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