Research Handbooks in European Law series
Edited by Andrej Savin and Jan Trzaskowski
Chapter 9: Information society perspectives on choice of law and jurisdiction – party autonomy in transition
This chapter focuses attention on the concept of party autonomy (the possibility of parties choosing jurisdiction and applicable law). This concept has always been part of private international law but the perception as to how actors are to be able to choose is affected, as are all other legal areas, by societal development, not least the development of information technology. Hence the aim of this chapter is to highlight the information society and its influence (or lack of influence) on the perception of party autonomy. Old concepts may need to be perceived differently in new circumstances; a conclusion that may be illustrated by two recent cases. In the first case a man had, minutes before his suicide, sent an SMS-message regarding the distribution of his estate; the question arose as to whether that message was to be considered a will according to the applicable law. The second case dealt with an SMS-loan that, in relation to the defendant, was taken out by a third party by the use of a stolen identity (the identity of the defendant). On a substantive note, the cases presented above do not reflect the topic being scrutinised, but they provide a representation of the situation in which courts of today regularly find themselves. Traditional problems (the establishment of a formally correct will and questions as to loans) need to be addressed in different ways, due to non-traditional (information-society-related) circumstances.
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