Towards the uniform application of party autonomy for choice of law in international commercial contracts

Abstract

In the field of international commercial contracts, the parties’ freedom to choose the applicable law is widely accepted. The principle of party autonomy understood this way is supposed to respect the expectations of the contracting parties and, thus, to favour predictability. Nevertheless, the absence of uniform application of party autonomy leads to asymmetries on the internationality of contract, the choice’s mode of expression, the proximity of the law chosen, the transnational character of the law chosen, and the role played by overriding mandatory rules and public policy. Those asymmetries lying behind the wide acceptance of party autonomy are explored as the causes of a lack of predictability. The article then examines the suitability of soft law principles to search for global convergence, as a possible solution to the problem of legal uncertainty. Such pathway having recently been undertaken by the Hague Conference on Private International Law, the codification techniques that were available are presented, before focusing on the principles as the tool chosen to prepare the Hague Principles on Choice of Law in International Commercial Contracts. Finally, the article proposes some reflections on the function of the Hague Principles and their expected future effects. It is concluded that the use of soft law principles is, nowadays, an appropriate tool to advance towards uniformity in the application of party autonomy in international commercial contracts.