Party Autonomy and the Challenge of Choice of Law
Philosophical Foundations of Conflict of Laws (Oxford University Press, Roxana Banu, Michael Green, Ralf Michaels, eds., 2022) (Forthcoming)
40 Pages Posted: 22 Sep 2022
Date Written: August 29, 2022
A perennial question in choice of law is whether parties to a contract can select the jurisdiction whose law will govern their contract. This so-called “party autonomy” problem is vexing and intriguing, in part because contemporary discussions often overlook in contemporary discussions.
The party autonomy problem is more consequential than most issues in choice of law. But it is also important as a singular window into the intellectual fabric of choice of law and as a leading edge for new and potentially subversive insights.
This essay is a chapter in an Oxford University Press volume on the “Philosophical Foundations of Conflict of Laws.” The essay argues that party autonomy does not have one comprehensive justification, but that it might be justified by a set of distinct if overlapping arguments that point to vital ideas often overlooked in the contemporary conversation. If choice of law doctrine embraces party autonomy, it might be in part because its shapers instinctively and inchoately recognize those considerations.
The most speculative and problematic argument is based on a version of natural law. Another argument relies on an important distinction between what I have called second-order and first-order choice of law. Yet another builds on an effort at a more sophisticated understanding of what it means for persons to be attached (or to attach themselves) to the legitimate governance of a legal system. The last argument is grounded in legal pluralism, though not of the usual sort.
These distinct bases for party autonomy are not only of theoretical interest. They also generate different answers to some of the material subsidiary questions that arise in any doctrinal consideration of party autonomy. That in turn suggests that the doctrine of party autonomy might require more nuance and fine-grained distinctions than most current treatments have given it.
Keywords: conflict of laws, choice of law, party autonomy, legal pluralism, natural law, boundaries and territory,
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