THE SCOPE OF PARTY AUTONOMY IN INTERNATIONAL COMMERCIAL CONTRACTS: A NEW DAWN?

Abstract

Transnational contracts are almost inevitable in the world today. It follows that a system of law must govern the resolution of disputes that arise from the contracts. The freedom of parties to choose a law that regulates transnational contracts is recognized by most countries as party autonomy. However, the extent of this autonomy has been controversial. This thesis unravels the controversy surrounding the doctrine of party autonomy and, more importantly, provides another perspective to the argument – that the application and scope of party autonomy in countries is determined by historical, colonial, economic, and religious factors. It uses this as a background to examine the new Hague Conference’s Principles on Choice of Law in International Contracts, with the argument that the Hague Conference may have neglected these factors in some of the Principles’ provisions. It proposes that these factors must be considered to persuade countries, especially developing ones, to adopt it.