The Nature and Enforcement of Choice of Law Agreements
Forthcoming in Journal of Private International Law
27 Pages Posted: 3 Jun 2018 Last revised: 20 Sep 2018
Date Written: May 1, 2018
This article seeks to examine the fundamental juridical nature, classification and enforcement of choice of law agreements in international commercial contracts. At the outset, it will be observed that the predominance of jurisdictional disputes in international civil and commercial litigation has displaced choice of law issues to the periphery. The inherent dialectic between the substantive law paradigm and the internationalist paradigm of party autonomy will be harnessed to provide us with the necessary analytical framework to examine the various conceptions of such agreements and aid us in determining the most appropriate classification of a choice of law agreement. A more integrated and sophisticated understanding of the emerging transnationalist paradigm of party autonomy will guide us towards a conception of choice of law agreements as contracts, albeit contracts that do not give rise to promises inter parties. This coherent understanding of both the law of contract and choice of law has significant ramifications for the enforcement of choice of law agreements.
Keywords: Choice of Law Agreement, Choice of Law Clause, Choice of Law, Party Autonomy, Paradigms of Party Autonomy, Procedural Contract, Classification, Promissory, Declaratory, Enforcement, Breach, Anti-Suit Injunction, Damages, Rome I Regulation, Brussels Ia Regulation, Mutual Trust, Effet Utile
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