Performing Party Autonomy

Abstract:     
Scholarly analysis of choices of law and forum tends to proceed from the moment of a choice having been made, or toward the possibility of its making. As a matter of private international law doctrine, the actual making of a contractual choice of law or forum is virtually unreadable. Corporate choices of law and forum in particular are typically projected as deliberate, measured, and coherent decisions, upon which normative constraints become operative only in anticipation of or after the fact. Yet such accounts sit uneasily with experiences of legal practice. Moreover, such projections of corporate integrity and autonomy are problematic by virtue of the types of inquiry and points of negotiation they foreclose. By way of a rejoinder, this article focuses ethnographically on corporate selections of law and forum in complex trans-boundary transactions. It contends that the factors shaping the enactment of choice in a complex deal are normatively irreducible to the apparently determined choices attributed to the entities in question and the principles of private international law that purport to uphold or constrain those choices. It argues, nonetheless, that corporate parties' enactments of autonomous preference tend to be structured in particular, patterned ways and it works to illuminate some of those patterns. In so doing, it recalls the contributions of legal realists to private international law, especially the work of Walter Wheeler Cook.

Keywords: international law, conflict of laws, private international law, legal realism, sociology of law, transnational corporations, corporate transactions, party autonomy, choice of law, choice of forum

JEL Classifications: K10, K11, K30, K33

Accepted Paper Series