Party Autonomy in European Private International Law: Uniform Principle or Context-Dependent Instrument?

Abstract

The increasing number of European regulations in private international law has raised an intensive debate about the coherence of these rules. This debate concerns both the cross section of conflict of laws in different fields (law of contractual and non-contractual obligations, family law, inheritance law, et cetera) and the cross section between conflict of laws and international jurisdiction law (e.g., between the Rome I Regulation and the new Brussels Ibis Regulation). One of the key questions is whether the different regulations follow a coherent concept of party autonomy. Against that background, the paper examines to what extent the European law follows a uniform approach to party autonomy or, alternatively, if such an approach seems feasible de lege ferenda. The focus lies on three questions: (1) Are the European regulations based on a consistent idea of party autonomy and do they shape the general scope of party choices accordingly? (2) What regulatory approaches are utilised to limit party autonomy for protection of certain individual or collective interests and do these approaches seem coherent? (3) What kind of concepts do the regulations’ rules on formal and material validity of party choices follow? In summary, the paper shows that, on the one hand, the potential for across-the-board solutions of party autonomy in European private international law is limited, but that, on the other hand, the feasible degree of coherence is not yet realised.