Party Autonomy and the Selection of Non-State Norms in International Commercial Contracts

HKLJ 48(3) 953, 2018

27 Pages Posted: 30 Mar 2019

See all articles by Jane Willems

Jane Willems

Tsinghua University - School of Law

Date Written: December 13, 2018

Abstract

This article explores the extent of the freedom of parties to choose the law governing their contractual relationship in international commercial contracts. The article commences with a general introduction on the role of party autonomy in international commercial contracts and on the substantive norms applicable to these contracts. It then turns to considerations of party autonomy as it is exercised by courts and examines the validity of some objections to the extension of choice of law to non-state norms. In particular it reviews one aspect of the current dualist regime, where courts have traditionally applied a restricted-choice model limited to the choice of state norms by private parties. The article then turns to the other aspect of the dualist regime, the free-choice of law model adopted in international commercial arbitration, where arbitrators enforce the private parties’ selection of non-state law to govern their dispute. This article suggests that the current status quo in arbitration be modified so as to extend this free choice model to state courts.

Keywords: international contracts, party autonomy, non-state norms, international law, conflict of laws, international arbitration

JEL Classification: K

Suggested Citation

Willems, Jane, Party Autonomy and the Selection of Non-State Norms in International Commercial Contracts (December 13, 2018). HKLJ 48(3) 953, 2018, Available at SSRN: https://ssrn.com/abstract=3336179

Jane Willems (Contact Author)

Tsinghua University - School of Law ( email )

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Beijing, Beijing 100084
China
86 188 1319 0094 (Phone)

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