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45 results

Page 1 of 3

  • 7 - Choice of Law in Contract

  • Alex Mills, University College London
  • Book:
    Party Autonomy in Private International Law
    Published online:
    31 July 2018
    Print publication:
    16 August 2018, pp 313-389

  • Summary

    This chapter examines the effectiveness of choice of law agreements in contractual relations. It is generally but not universally accepted that a choice of law clause is effective to determine the applicable law for a contract. There are usually no formality requirements for choice of law agreements, which opens the possibility for such agreements to be implied. This chapter examines the circumstances in which such implied agreements may arise, and the distinction between the identification of an implied choice of law and the applicable law in the absence of choice. The chapter then examines whether the law chosen by the parties must have an objective connection to the parties or their dispute. It also considers the possibility and effects of a choice of law subsequent to the establishment of the contractual relationship between the parties. The focus then turns to the question of the law applicable to the validity of a choice of law agreement, as well as the specific issue of what effect should be given to a choice of law which invalidates the contract between the parties. For each of these issues, a variety of approaches can be identified in the different legal systems under examination.

  • 2 - Historical and Theoretical Foundations of Party Autonomy

  • Alex Mills, University College London
  • Book:
    Party Autonomy in Private International Law
    Published online:
    31 July 2018
    Print publication:
    16 August 2018, pp 29-90

  • Summary

    This chapter examines the historical and theoretical foundations of party autonomy. The analysis of the history of party autonomy reveals that it has a distinct background in choice of forum and choice of law, evolving from different sources and justifications. Although arguments related to party autonomy have a long history, these have also long been controversial, and it was only in the twentieth century that party autonomy became widely accepted as a doctrine. There was, however, no single theoretical or doctrinal development which marked the establishment of party autonomy, but rather a gradual evolution. The chapter then examines the theoretical justifications for party autonomy, distinguishing between justifications focusing on the parties and those focusing on public benefits. The former category includes both deontological and consequentialist justifications, while the latter is based solely on a consequentialist approach, often emphasising the role of party autonomy in enhancing regulatory competition. These theoretical justifications largely reinforce each other, but they do suggest different limits to party autonomy. Five particular potential limits are identified, to be explored throughout the book – authenticity, foreseeability, public interests and values, justifiability, and the need for a cross-border element.

  • 11 - Conclusions

  • Alex Mills, University College London
  • Book:
    Party Autonomy in Private International Law
    Published online:
    31 July 2018
    Print publication:
    16 August 2018, pp 521-530

  • Summary

    This chapter concludes the analysis in the book by focusing on the five questions of consistency introduced in Chapter 1. The first is the question of consistency between party autonomy in choice of forum and choice of law. The second is the question of consistency between party autonomy in contract and in non-contractual relations. The third is the question of consistency between the choice of non-state forums or law and the choice of state forums or law. The fourth is the question of consistency between party autonomy in practice and party autonomy in theory. The fifth is the question of consistency between legal systems. In respect of each of these questions, the analysis in the book identifies a degree of inconsistency and a variety of approaches, and thus that the idea of party autonomy as a unifying principle of private international law may be more open to challenge than is sometimes contended. The book concludes with a final appraisal of the current and prospective role of party autonomy in private international law, and its significance in the global legal order.

  • 4 - Choice of Court Agreements and Non-Contractual Claims

  • Alex Mills, University College London
  • Book:
    Party Autonomy in Private International Law
    Published online:
    31 July 2018
    Print publication:
    16 August 2018, pp 175-208

  • Summary

    This chapter examines the effectiveness of choice of court agreements in relation to non-contractual claims. It distinguishes between two issues. The first is the question of the scope of a choice of court agreement – the range of disputes which the parties intend it to cover. This question is dependent on the approach to interpretation under the substantive law governing the jurisdiction agreement – some legal systems presume that jurisdiction agreements are intended to encompass a wide range of disputes, while others take the view that the ordinary rules of jurisdiction should only be departed from by clear agreement of the parties, and construe jurisdiction agreements narrowly. The second issue is then whether a jurisdiction agreement will be effective in relation to non-contractual claims. Different legal systems again take different approaches, but a recurring theme is that a jurisdiction agreement should only be effective for non-contractual disputes which arise foreseeably out of the contractual relationship under which the agreement was established. Even where a jurisdiction agreement is interpreted not to cover non-contractual disputes, there are a variety of indirect effects given to choice of court agreements which may lead to similar outcomes.

  • 10 - Choice of Non-State Law

  • Alex Mills, University College London
  • Book:
    Party Autonomy in Private International Law
    Published online:
    31 July 2018
    Print publication:
    16 August 2018, pp 491-520

  • Summary

    This chapter examines the possibility that the parties might choose non-state law to govern their legal relations – this might be, for example, religious law, or a codification of international commercial law. This must be distinguished from the incorporation by reference of rules of non-state law as contractual terms. National choice of law rules have traditionally been limited to a choice of state law. Athough there is significant academic discussion of the possible application of non-state or transnational law, it has received limited acceptance in national courts. By contrast, arbitral tribunals frequently accept the designation of a non-state governing law, reflecting the contractual foundations and perhaps transnational character of arbitration. National courts also generally recognise and enforce arbitral awards based on non-state law, endorsing the practice of arbitral tribunals even if it is not a practice the courts would themselves follow. The Hague Principles on Choice of Law in International Commercial Contracts 2015 innovatively provide for a possible choice of non-state law, although they are aimed at influencing arbitral practice as much as national law reform and impose various complex conditions on the application of non-state law – it remains to be seen how influential they will be in practice.

  • 3 - Choice of Court Agreements: Effects and Effectiveness

  • Alex Mills, University College London
  • Book:
    Party Autonomy in Private International Law
    Published online:
    31 July 2018
    Print publication:
    16 August 2018, pp 91-174

  • Summary

    This chapter examines the general effects and effectiveness of choice of court agreements, focusing on contractual claims. An initial distinction is drawn between exclusive and non-exclusive jurisdiction agreements, while recognising that some agreements may combine features of both. The chapter then examines the rules governing the interpretation and validity of jurisdiction agreements, which may be both a matter of private international law and the applicable contract law. The question of the applicable law for a jurisdiction agreement is, however, complicated by the doctrine of severability and the uncertainty over whether a jurisdiction agreement should be characterised as substantive or procedural. The consequences of a jurisdiction agreement in different legal systems are then examined, looking at a range of direct and indirect effects which are determined by the private international law rules of each system. These include the major issues of whether a jurisdiction agreement effectively confers jurisdiction on the chosen court, and when an exclusive jurisdiction agreement is effective to derogate from the jurisdiction of any other court. Two further particularly contentious issues are then analysed – the issue of the validity and effectiveness of asymmetrical jurisdiction agreements, and the potential impact of jurisdiction agreements on third parties.

  • 8 - Choice of Law in Non-Contractual Relations

  • Alex Mills, University College London
  • Book:
    Party Autonomy in Private International Law
    Published online:
    31 July 2018
    Print publication:
    16 August 2018, pp 390-454

  • Summary

    This chapter examines the effectiveness of a contractual choice of law by the parties in a variety of non-contractual contexts. It first focuses on the problem of determining the intended scope of a choice of law agreement, which is a matter of contractual interpretation. The question then arises as to whether non-contractual choice of law rules will directly or indirectly give effect to a party agreement. In tort, a contractual choice of law is often recognised as having an indirect influence on the applicable law, and may be directly effective in limited circumstances. A contractual choice of law may also have an indirect effect in some cases where a claim is based on unjust enrichment. In choice of law in property, arguments are increasingly made for recognition of party autonomy, and an indirect effect is commonly recognised for assignments of contractual rights. The question of whether party choices of law should be recognised in equitable claims and under the law of trusts is also explored. Finally, the chapter examines the increasing influence of party autonomy in aspects of succession and family law, noting the distinctive role which party autonomy plays in this context. In each context a variety of approaches are considered.

  • 6 - Arbitration Agreements

  • Alex Mills, University College London
  • Book:
    Party Autonomy in Private International Law
    Published online:
    31 July 2018
    Print publication:
    16 August 2018, pp 263-312

  • Summary

    This chapter examines the circumstances in which the parties can agree to have their disputes resolved through a private arbitral tribunal rather than a national court. It first examines an important underlying theoretical complexity concerning arbitration – the extent to which it is dependent on national law, and the extent to which it can be considered to have international or transnational foundations. The chapter then examines the question of what law governs an arbitration agreement, noting the potentially different approaches of courts and arbitral tribunals. The following section then examines when a court or arbitral tribunal should be deciding on disputes concerning the validity or applicability of an arbitration agreement. A distinction is drawn between issues of jurisdiction and admissibility, and the different interpretations of the principle of ‘competence-competence’ are explored. Four issues are then examined concerning the scope and effectiveness of arbitration agreements – their interpretation, their effect on third parties, whether they are exclusive, and whether they permit class arbitration. Finally, this chapter examines restrictions on the types of disputes which may be subject to arbitration. For each of the issues analysed in this chapter, a diversity of approaches may be identified in the different legal systems under examination.

  • 5 - Limits on Party Autonomy in Choice of Court

  • Alex Mills, University College London
  • Book:
    Party Autonomy in Private International Law
    Published online:
    31 July 2018
    Print publication:
    16 August 2018, pp 209-262

  • Summary

    This chapter examines the four main limits which are applied to the effectiveness of choice of court agreements. The first is the possible imposition of formality restrictions, such as a requirement that a choice of court agreement must be in writing to be effective. The second is a potential requirement for a dispute to have a cross-border element before a choice of court is permissible, ruling out a choice of a foreign court for purely domestic cases. The third is the possible overriding effect of exclusive subject matter jurisdictional rules, which recognise certain categories of disputes as so closely connected to a single legal order that the parties should not be free to choose a foreign court. The fourth is the potential existence of special jurisdictional regimes dealing with weaker contracting parties such as consumers and employees, under which those parties may be protected from disadvantageous jurisdiction agreements. The analysis of each of these potential restrictions highlights that the means for recognising these concerns, or indeed whether they are recognised at all, is significantly varied in the different legal systems under examination.

  • 1 - Introduction

  • Alex Mills, University College London
  • Book:
    Party Autonomy in Private International Law
    Published online:
    31 July 2018
    Print publication:
    16 August 2018, pp 1-28

  • Summary

    This chapter introduces the doctrine of party autonomy in private international law. It first highlights the contrast between state-sovereigntist and party-sovereigntist perspectives on party autonomy – while party autonomy may be supported under both perspectives, they suggest distinct approaches to its justifications and limits. After explaining the comparative scope of the book, the chapter then provides clarification of the meaning of party autonomy, through distinguishing it from a range of other related but distinct issues or doctrines, including the indirect choice of forum or law through control of objective connecting factors, submission, unilateral promises to submit to a forum, party expectations as justifications for an objective choice of law rule, contractual autonomy, and incorporation by reference. Finally, the chapter poses five questions relating to the consistency of party autonomy which are each addressed in the book – consistency between choice of forum and choice of law, between contractual and non-contractual relations, between state and non-state forums and law, between theory and practice, and between legal systems.

  • 9 - Limits on Party Autonomy in Choice of Law

  • Alex Mills, University College London
  • Book:
    Party Autonomy in Private International Law
    Published online:
    31 July 2018
    Print publication:
    16 August 2018, pp 455-490

  • Summary

    This chapter examines the most significant limitations on the power of private parties to choose a governing law, identifying a variety of approaches in different legal systems. Three such types of restrictions are analysed. The first is based on the subject matter of the dispute or the characteristics of the parties, such as limitations on choice of law for consumer and employment contracts. To protect weaker parties a choice of law may be excluded entirely, limited in terms of possible options, open to review, or subject to limited effectiveness. A second type of restriction is based on whether and to what extent the parties are able to choose foreign law in a situation purely connected to a single legal system. A third type of restriction arises from the doctrines of mandatory rules and public policy. Mandatory rules are typically forum statutes which override the application of foreign law, including where that law has been chosen by the parties. Protecting their application may also be considered to require restricting party choice of forum. Public policy operates as a final residual safety-net where the content of foreign law, including a law chosen by the parties, is contrary to forum values.

Party Autonomy in Private International Law
  • Alex Mills
  • Published online:
    31 July 2018
    Print publication:
    16 August 2018
  • This book provides an unprecedented analysis and appraisal of party autonomy in private international law - the power of private parties to enter into agreements as to the forum in which their disputes will be resolved or the law which governs their legal relationships. It includes a detailed exploration of the historical origins of party autonomy as well as its various theoretical justifications, and an in-depth comparative study of the rules governing party autonomy in the European Union, the United States, common law systems, and in international codifications. It examines both choice of forum and choice of law, including arbitration agreements and choice of non-state law, and both contractual and non-contractual legal relations. This analysis demonstrates that while an apparent consensus around the core principle of party autonomy has emerged, its coherence as a doctrine is open to question as there remains significant variation in practice across its various facets and between legal systems.

  • EU External Relations and Private International Law: Multilateralism, Plurilateralism, Bilateralism, or Unilateralism?

  • from PART III - THE CHANGING FEATURES OF EU EXTERNAL RELATIONS IN THE AREA OF PRIVATE INTERNATIONAL LAW
  • Edited by Pietro Franzina
  • Book:
    The External Dimension of EU Private International Law after Opinion 1/13
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    04 November 2016, pp 101-116

  • Summary

    INTRODUCTION

    The primary focus in the development of EU private international law has thus far been on ‘internal’ questions and policy goals – principally, enhancing the efficient functioning of the internal market. This chapter analyses the potential ‘external’ dimension of EU private international law, looking at some of the roles which private international law might play in EU external relations (including potentially, in light of the recent Brexit vote, its relations with the United Kingdom).

    The need to consider this question arises because the EU has, at least arguably, obtained exclusive external competence in at least most of the field of private international law. It has long been understood that exclusive external competence for the EU may arise where the (potential or actual) external rules ‘are of such a kind as to affect … Community rules’, even if those external rules are not directly inconsistent with Community (now EU) rules, but merely diminish their uniformity. These principles have now been codified in the Treaty on the Functioning of the European Union, Article 3(2) of which provides (in relevant part) that:

    The Union shall also have exclusive competence for the conclusion of an international agreement … in so far as its conclusion may affect common rules or alter their scope.

    In Opinion 1/13, directly relating to the field of private international law, the Court of Justice of the European Union held that as a consequence of this rule the EU must have exclusive competence to decide whether to accept the accession of a third state (a non-EU Member State) to the 1980 Hague Convention on the civil aspects of international child abduction, otherwise ‘there would be a risk of undermining the uniform and consistent application’ of the Brussels IIa Regulation. Pursuant to this decision, the EU has exercised this competence by authorising certain Member States to accept the accession of a number of third States to the Convention.

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