The Choice of Law Contract (Studies in Private International Law)

This book offers a contractual framework for the regulation of party autonomy in choice of law. The party autonomy rule is the cornerstone of any modern system of choice of law; embodying as it does the freedom enjoyed by parties to a cross-border legal relationship to agree on the law applicable to it. However, as this study shows, the rule has a major shortcoming because it fails to give due regard to the contractual function of the choice of law agreement. The study examines the existing law on choice of law agreements, by reference to the law of both common and civil law jurisdictions, and international instruments. Moreover, it suggests a new coherent approach to party autonomy that integrates both the law of contract and choice of law. This important new study should be read with interest by private international law scholars. Volume 18 in the series Studies in Private International Law Series Editors’ Preface Acknowledgements Contents Table of Cases Table of Legislation 1. Introduction I. The Contractualisation of Choice of Law II. A New Perspective: The Choice of Law Contract 2. Selection of the Applicable Law by Contract I. A Mutual Intention to Choosethe Applicable Law II. The Factual View: Choice of Law as an Extra-legal Agreement III. The Choice of Law Agreement as a Contract 3. The Scope of Party Autonomy I. Party Autonomy as Freedom of Contract II. Functions of Objective Choice of Law III. The Risks and Benefits of Contractualisation IV. Reconciling Party Choice with Public Policy V. Scope of the Party Autonomy Rule VI. Practical Implications 4. Independence of the Choice of Law Contract I. Choice of Law in Contract—By Contract II. Putative Reasoning III. The Choice of Law Contract as an Independent Contract IV. Implications for the Substantive Contract V. Conclusion 5. Regulating the Choice of Law Contract I. Importance of a Cohesive Framework II. Underlying Principles III. Law of Contract IV. Modal Choice of Law Rules V. Limitations on the Scope of the Party Autonomy Rule VI. A Cohesive Framework 6. Agreement to Choose the Applicable Law I. Introduction II. Intention or Expectation? III. Subjective or Objective Intention? IV. A Real or Hypothetical Agreement? V. Conclusion 7. Formation of the Choice of Law Contract I. Introduction II. Extrinsic Evidence III. Offer and Acceptance IV. Certainty and Floating Choice of Law Contracts V. Formal Validity VI. Capacity VII. Transparency in Standard Terms VIII. Informed Choice IX. Conclusion 8. Validity of the Choice of Law Contract I. Introduction II. Mistake and Misrepresentation III. Fairness in Substance IV. Changes in the Chosen Law V. Remedies VI. Conclusion 9. Conclusion I. Contractualising Choice of Law:Unfinished Business II. Reform of Objective Choice of Law Rules? III. The Case for a Contractual Approach Select Bibliography Index Présentation de l'éditeur : "This book offers a contractual framework for the regulation of party autonomy in choice of law. The party autonomy rule is the cornerstone of any modern system of choice of law; embodying as it does the freedom enjoyed by parties to a cross-border legal relationship to agree on the law applicable to it. However, as this study shows, the rule has a major shortcoming because it fails to give due regard to the contractual function of the choice of law agreement. The study examines the existing law on choice of law agreements, by reference to the law of both common and civil law jurisdictions and international instruments. Moreover, it suggests a new coherent approach to party autonomy that integrates both the law of contract and choice of law. This important new study should be read with interest by private international law scholars."