Autonomy of the Parties and its Limitations in International Commercial Contracts

Abstract to the master dissertation on topic «Autonomy of the Parties and its Limitations in International Commercial Contracts» This master dissertation is aimed at comprehensive study and legal analysis of the Party autonomy legal nature, as well as identification and systematization into a consistent classification of its limitations regarding international commercial contracts. The master dissertation consists of an introduction, two chapters, seven paragraphs, six items, a conclusion, and a bibliography. Chapter 1 elaborates the study of the most relevant approaches to determining the legal nature of Party autonomy in international commercial contracts and is divided into four paragraphs by the number of approaches considered. Chapter 2 elaborates limitations of the Autonomy of the Parties in international commercial contracts and is divided into three paragraphs: time limitations, geographical limitations, and scope limitations, respectively. Geographical limitations of the Party Autonomy are determined by considering two questions (the categories of absolute and relational Autonomy of the Parties; and also the permissibility of extending the Party Autonomy to the choice of a non-state system of law), therefore paragraph 2 of Chapter 2 of the master dissertation is divided into two items. Further, the scope limitations of the Party Autonomy are determined by considering four questions (the law, applicable to the assessment of the acceptability of the choice of law consequences; the correlation of the categories of Party Autonomy and the evasion of law; the limitation of the Party Autonomy by applying mandatory rules; and the inadmissibility of public order violation), respectively, paragraph 3 of Chapter 2 of the master dissertation is divided into four items. Based on this research the following conclusions were made: (1) Party Autonomy has specific characteristics as a principle of private international law, the phenomenon of collision legal nature, the institute of substantive law and the sustainable source of private international law, and that allows to characterize it as a phenomenon sui generis; (2) Autonomy of the parties in international commercial contracts has certain limits, which can be expressed through a system of time, geographical and scope limitations; (3) time limitations can be reduced to the possibility of the parties to an international commercial contract to choose the applicable law both before its conclusion, and at any stage after, but in any case until the termination of the relationship, or until the first presentation of its procedural position on the merits of the dispute; (4) geographical limitations of the Party Autonomy depend on whether a certain legal order recognizes the right of parties to choose as an applicable one any objectively existing law or to choose only such a law that has a certain connection with the contract; (5) at the same time the possibility to subordinate legal relations to non-state system of law as a practical matter is being recognized more and more often and fully meets the needs of modern economic turnover; (6) scope limitations provide that the choice of applicable law and the consequences of its application cannot contradict public order in both positive and negative concepts, and that the exercise of Party Autonomy cannot be aimed at excluding the application of mandatory rules of the legal order, to which all the essential circumstances of an international commercial contract are solely related; (7) the scope limitations of the Party Autonomy can be determined on the basis of the law of the place where the dispute is considered, as well as the law that would be applicable in the absence of exercised Party autonomy.