Balancing Sovereignty and Party Autonomy in Private International Law: Regression at the European Court of Justice
Forthcoming in Universalism, Tradition and the Individual, Liber amicorum dedicated to Professor Petar Šarčivič
The traditional function of private international law is to determine jurisdiction, applicable law, and the extent to which foreign judgments will be recognized and enforced. This naturally requires reliance on domestic law rules. More recently, however, regional governmental bodies, multilateral organizations, and even non-governmental organizations are creating rules applicable to transnational transactions. Along with this trend has come greater respect for party autonomy in selecting of the rules that govern private relationships. These trends have implications for both private transaction planning and for the regulatory function of the state. Granting private parties greater rights to determine the contours and results of their relationships necessarily reduces the control of the state in private affairs. This paper discusses traditional notions of “sovereignty” and how those notions relate to allocations of authority for the rules governing private party relationships. After a general discussion of sovereignty and the evolution of private international law, consideration is given to three decisions of the European Court of Justice that demonstrate an approach to issues of party autonomy that rewards conduct arguably inconsistent with a quest for predictable and stable private party relationships. The paper concludes that these decisions represent a retrenchment into potentially questionable understandings of concepts of sovereignty, and risk the curtailment of otherwise positive developments in the balance of state authority and respect for party autonomy.