This chapter provides commentary on Article 19 of the Rome III Regulation, the European Union Divorce Law Pact.
Faadhil Adams and Thalia Kruger
This chapter considers the extent of parties’ choice of non-State law and the philosophical objections to allowing them to choose non-State law. The text is only a part of a greater debate. It does, however, attempt to assess the developments on the topic and provide an analysis thereof. The chapter includes a discussion of choice-of-law clauses in arbitration. It does not deal with the law applicable to contracts in the absence of the parties having made a choice (or when their choice turns out to be invalid): this is a vast topic which is beyond the scope of the present focus. Similarly, the use by arbitrators of the lex mercatoria where parties have not chosen the law applicable to their contract is not part of our investigation. The chapter begins with the nature of choice-of-law clauses and then turns to a brief history of such clauses before focusing on contemporary choice-of-law clauses. In doing so, the chapter focuses on the EU and South African law but also takes into account other global or regional instruments that are of particular relevance to the topic. Mandatory rules and ‘overriding’ mandatory provisions can limit the choice by the parties and can thus also play a role where parties have chosen non-State law. The chapter also considers the parties’ choice in arbitration where such choices are generally more liberal.