Private International Law
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Private International Law

Contemporary Challenges and Continuing Relevance

Edited by Franco Ferrari and Diego P. Fernández Arroyo

Is Private International Law (PIL) still fit to serve its function in today’s global environment? In light of some calls for radical changes to its very foundations, this timely book investigates the ability of PIL to handle contemporary and international problems, and inspires genuine debate on the future of the field.
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Chapter 3: Foundation, limits and scope of party autonomy

Giuditta Cordero-Moss

Abstract

Starting from party autonomy’s generally recognized importance in international commerce, this chapter argues that the parties’ ability to choose the applicable law is not an absolute universal principle. It is a conflict rule deriving from state private international laws. This implies various restrictions. Recognizing the limits of party autonomy, however, is more friendly to international commercial contract practice and arbitration than assuming that party autonomy is absolute. It allows for the applicable law to be predicted and for valid and enforceable arbitral awards to be rendered. Furthermore, it prevents an erosion of trust in the institution of arbitration, which in turn may result in restricted arbitrability. The chapter discusses the scope and object of party autonomy in courts and in arbitration. In arbitration, parties may choose non-state law (‘rules of law’). Considered to be party autonomy’s apotheosis, paradoxically, choosing these sources may end up limiting contract freedom.

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