Provides an unprecedented historical, theoretical and comparative analysis and appraisal of party autonomy in private international law. These issues are of great practical importance to any lawyer dealing with cross-border legal relationships, and great theoretical importance to a wide range of scholars interested in law and globalisation.
This book provides an unprecedented analysis and appraisal of party autonomy in private international law - the power of private parties to enter into agreements as to the forum in which their disputes will be resolved or the law which governs their legal relationships. It includes a detailed exploration of the historical origins of party autonomy as well as its various theoretical justifications, and an in-depth comparative study of the rules governing party autonomy in the European Union, the United States, common law systems, and in international codifications. It examines both choice of forum and choice of law, including arbitration agreements and choice of non-state law, and both contractual and non-contractual legal relations. This analysis demonstrates that while an apparent consensus around the core principle of party autonomy has emerged, its coherence as a doctrine is open to question as there remains significant variation in practice across its various facets and between legal systems.
Examination of Party Autonomy and its limits has always raised fundamental questions in national contract and private law. The concentration on information solutions which enhance and leave more space to party autonomy is a fundamentally new approach to this core issue and is typical of Community legislation. The complexity of the question made it advisable to have the different aspects treated and discussed by specialists in different areas: by legal scholars and economists, by EC law and by contract law specialists, by scholars from different jurisdictions with different regulatory approaches and backgrounds. The four parts deal with (1) the economic and constitutionell foundations of the question, with (2) the framework to be found in EC treaty law, with (3) the fundamental and more general aspects relating to substantive EC contract law legislation, and with (4) the most important individual legal measures. The book covers both general contract law (with consumer contracts) and labour contract law.
Is Private International Law (PIL) still fit to serve its function in today’s global environment? In light of some calls for radical changes to its very foundations, this timely book investigates the ability of PIL to handle contemporary and international problems, and inspires genuine debate on the future of the field.
This is a carefully structured, practice-orientated textbook. The strong comparative component provides a thought-provoking international perspective, while at the same time allowing readers to gain unique insights into international commercial litigation in English courts.
This concise book is mainly intended to be used as an introduction to the rules of private international law belonging to the legal system of the European Union. It provides legal practitioners with an overview of this highly complex field of law and can serve as an introductory textbook in elective undergraduate courses and master programs offered today by many law schools both to their own students and to exchange students from other countries. The book will hopefully also be useful as a spring-board towards more profound studies of statutory texts, case law and legal literature. Michael Bogdan is Professor of Comparative and Private International Law at the University of Lund, Sweden.
This book highlights the importance of optional choice of court agreements, and the need for future research and legal development in this area. The law relating to choice of court agreements has developed significantly in recent years, reflecting their increased use in practice. However, most recent legal developments concern exclusive choice of court agreements. In comparison, optional choice of court agreements, also called permissive forum selection clauses and non-exclusive jurisdiction clauses, have attracted little attention from lawmakers or commentators. This collection is comprised of 19 National Reports, providing a critical analysis of the legal treatment of optional choice of court agreements, including asymmetric choice of court agreements, under national laws as well as under multilateral instruments. It also includes a General Report offering an overview of this area of the law and a synthesis of the findings of the national reporters. The contributions to this collection show that the legal treatment of optional choice of courts differs between legal systems. In some countries, the law on the effect of optional choice of court agreements is at an early stage in its development, whereas in others the law is relatively advanced. Irrespective of this, the national reporters identify unresolved issues with the effect of optional choice of court agreements, where the law is unclear or the cases are conflicting, demonstrating that this topic warrants greater attention. This book is of interest to judges, legislators, lawyers, academics and students who are concerned with private international law and international civil procedure.
No field of legal scholarship or practice operates in the world of private international law as continuously and pervasively as does international arbitration, commercial and investment alike. Arbitration's dependence on private international law manifests itself throughout the life-cycle of arbitration, from the crafting of an enforceable arbitration agreement, through the entire arbitral process, to the time an award comes before a national court for annulment or for recognition and enforcement. Thus international arbitration provides both arbitral tribunals and courts with constant challenges. Courts may come to the task already equipped with longstanding private international law assumptions, but international arbitrators must largely find their own way through the private international law thicket. Arbitrators and courts take guidance in their private international law inquiries from multiple sources: party agreement, institutional rules, treaties, the national law of competing jurisdictions and an abundance of "soft law," some of which may even be regarded as expressing an international standard. In a world of this sort, private international law resourcefulness is fundamental.
The principle of party autonomy in contractual choice of law is widely recognised in the law of most jurisdictions. It has been more than 30 years since party autonomy was first accepted in Chinese private international law. However, the legal rules provided in legislation and judicial interpretations concerning the application of the party autonomy principle are abstract and open-ended. Without a critical understanding of the party autonomy principle and appropriate interpretations of the relevant legal rules, judges have not exercised their discretionary power appropriately. The party autonomy principle has been applied in a way that undermines its very purpose, that is, to protect the legitimate expectations of the parties and promote the predictability of outcomes in transnational commercial litigation. Jieying Liang addresses the question of how, when, and with what limitations, parties' choice of law clauses in an international commercial contract should be enforced by Chinese courts.
