Indian private international law vis-à-vis party autonomy in the choice of law

Abstract

ABSTRACTIn the present era, most jurisdictions across the globe imbibe the subjective interpretation of party autonomy whereby the parties’ choice of governing law in an international commercial contract is unfettered by any geographical limitations. Indian private international law conforms to this international best practice and there are sufficient judicial dicta to indicate that party autonomy extends to the choice of any law—even if it has no nexus with the transaction in question. However, the blind adoption of the traditional common law principles has led to certain ambiguities in Indian private international law, in particular concerning the limits within which this freedom must operate. Furthermore, under the current principles of Indian private international law, it is unclear whether party autonomy in the choice of law also extends to the express selection of other rules of law or non-state norms. In such circumstances, it is suggested that the Indian courts could plausibly refer to the recommendations formulated by international organisations such as the Hague Conference on Private International Law’s Principles on Choice of Law in International Commercial Contracts (the Hague Principles) on these aspects for interpretational purposes if they encounter such anomalies in the future.