Topic > Party Autonomy in International Contracts

Few principles are as widely recognized as the autonomy of parties in international contracts in designating the law that will apply to their transactions and the forum in which they will resolve their disputes. Traditionally, the scope of this autonomy has been limited to matters that would otherwise be governed by private law, which in the context of commerce essentially means the main body of contract law. In this context, parties to international contracts are free to designate the law or principles that will govern their transaction to the exclusion of any otherwise applicable law. They are also free to privately arbitrate any disputes that may arise between them, excluding otherwise mandatory public court litigation. Say no to plagiarism. Get a tailor-made essay on "Why Violent Video Games Shouldn't Be Banned"? Get an original essayThe autonomy of the parties to international contracts in choosing private arbitration for dispute resolution excluding national courts has a somewhat shorter and more tumultuous history than that of the autonomy of the parties in designating the applicable law excluding the otherwise applicable law. Both types of autonomy, however, emerged from their respective pasts virtually unfettered; and the story of each is carefully documented in an abundant and growing literature. Party autonomy has gained acceptance in international law and has received recognition in almost all national jurisdictions. The principle provides for the right of parties to an international trade agreement to choose the applicable substantive law. When parties choose substantive law, that choice generally refers to the law governing the contractual relationship between the parties. Unless otherwise provided, this choice does not relate to conflict of law rules arising from private international law. The modern view is that parties have the freedom to choose any substantive law or legal rule even if these have no connection with the parties or the specific dispute. Parties are not only free to choose a system of national law, but can also choose to rely on commercial customs, anational rules of law, transnational law, lex mercatoria, general principles of law or general principles of law international. The main advantage of party autonomy is that the parties can choose a law that they are familiar with and whose provisions are suitable for the agreement in question. The parties can also avoid the application of a law that has a close connection with the transaction, and which would therefore apply, by choosing another applicable law. By making a clear choice of law, the parties will know what they can expect from each other and from the arbitral tribunal. It is therefore often argued that party autonomy guarantees certainty and predictability.