The autonomous contract and declining mandatory rules. A first reaction to an article by Horatia Muir Watt and Luca Radicati di Brozolo.(Global Jurist Advances, vol. 4, issue 1, March 13, 2004)

Publication: Global Jurist Topics

Publication Date: 01-DEC-04

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COPYRIGHT 2004 Berkeley Electronic Press

Abstract

Horatia Muir Watt and Luca Radicati di Brozolo have highlighted the circumstance that in an increasing number of contractual relationships the grasp of mandatory rules belonging to a specific national legal order may be reduced, by several devices. The reading of the article causes a number of considerations. As a first reaction one is drawn to reconsider one's long lasting persuasion: the strong attachment of a national legal system to the ordre public's exception may finally be declining, contrary to previous experience. Secondly, one has to reconcile the new data collected by the authors with indications pointing in a different direction: some of them emerging from the Inter-American Convention on the Law Applicable to International Contracts (Mexico City). Scholars show different reactions to a possible decline of the enforcement of mandatory rules: some writers are heartily in favour of a stronger competition between legal systems, cleared from restrictions depending on the "mandatory character" of certain rules. But elsewhere we also find voices advocating the intervention of supranational legislation in order to preserve some standards independently from the various States' policies. Curiously enough some sources of private legislation, such a the UNIDROIT Principles of international commercial contracts, conceived as eminently optional instruments, choose to qualify some of their provisions as mandatory (e.g. the good faith principle): you may choose whether or not to apply the Unidroit Principles, but once you opt in, you may not get away from some of its provisions.

KEYWORDS: Transnational Contract, Mandatory Rules, International Organizations, Principles for international contracts, Private legislatures

In June 2004 Ugo Mattei organized a friendly meeting in Turin to discuss with the authors an article published on Global Jurist by Horatia Muir Watt and Luca Radicati di Brozolo ("Party Autonomy and Mandatory Rules in a Global World"): their study stresses a specific effect of the increasing number of transactions that work across borders.

Somehow we are faced with a reversed reaction to what the common complaint was, up to a few years ago: some writers were writing in the middle of the 1990s that negotiators of conventions on the law...

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