Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - PARTY AUTONOMY IN PRIVATE INTERNATIONAL LAW
Anthony Kennedy
Barrister; Lecturer, BPP Law School
PARTY AUTONOMY IN PRIVATE INTERNATIONAL LAW. Alex Mills, Professor of Public and Private International Law, University College London. Cambridge University Press (2018) xiv and 529 pp plus 38 pp Bibliography and 12 pp Index. ISBN: 9781107079175. Hardback £120.00.
While party autonomy has not always sat easily alongside principles, like state sovereignty, which underpin much of the discussion which takes place in the private international law context, it now plays such a significant role in that context that certain scholars have felt able to argue that its “centrality in the European tradition is … taken for granted” (Professor H Muir Watt, “‘Party Autonomy’ in International Contracts: From the Makings of a Myth to the Requirements of Global Governance” (2010) 6 ERCL 250). Indeed, one need only look in recent times, as the author of Party Autonomy in Private International Law does at the beginning of his work, at the Hague Convention on Choice of Court Agreements 2005 and the European Union’s Regulations No 593/2008 (Rome I) and No 864/2007 (Rome II) to see the role which has been carved out for the concept of party autonomy. Outside Europe, and even in countries such as China, which have traditionally been resistant to notions of party autonomy, recent developments (as to which, see: Art.3 of the Law of the People’s Republic of China on the Laws Applicable to Foreign-Related Civil Relations (2010), referred to at various places within his work by Professor Mills) suggest that autonomy is gaining, and will continue to gain, ground. It appears that its role will continue to grow.
Professor Mills’ work does not set out either to oppose or advocate a particular role for party autonomy in private international law. Instead, it contents itself with an “examination and appraisal” of the concept of party autonomy in this setting, offering an analysis and evaluation of its features as a matter of both theory and positive law. This is done, at least in part, to answer five main “questions of consistency”, each of which is concerned to establish whether party autonomy has been treated, and should be treated, consistently in different legal contexts. These contexts are: choice of forum/choice of law; contract/other areas of law; the choice of non-state forum or law/choice of state forum or law; practice/theory; and as between various different legal systems.
To be completed properly, this task necessarily involves comparing the various theoretical and practical approaches employed nationally, sub-nationally and supra-nationally. Accordingly, Party Autonomy in Private International Law concentrates principally (but not exclusively) on the following sources of private international law: international private international law (defined by Professor Mills to include, inter alia, the aforementioned Hague Convention on Choice of Court Agreements and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards); EU private international law; what the author describes as the “common law” (emanating from England but “represented around the globe by various national traditions”, as the author puts it on p.13); and the private international law of the United States. These sources, and the comparison of the various approaches which they have begotten on specific issues, provide much food for thought for both practitioners and theorists, if not necessarily always at the same time.
Before moving on to the substance of the work, it is appropriate to offer some observations on its organisation. The first chapter is helpfully laid out; particular assistance is given by section 1.3, which not only carves out from the scope of the book particular matters but also attempts to define party autonomy more precisely by “distinguishing it from other
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