COMPARATIVE STUDY OF BRAZIL AND SOUTH AFRICAN PRIVATE INTERNATIONAL LAW VIS-À-VIS PARTY AUTONOMY IN THE CHOICE OF LAW
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Abstract
The principle of party autonomy refers to the freedom of the parties to choose the ‘governing law’ or the ‘proper law’ of the contract. The principle has emerged as one of the cornerstones of conflict of law rules and has been acknowledged as a universal principle by scholars and legislatures. The emergence of principles can be attributed to the proliferation of transboundary contracts, and consequently, the number of disputes arising out of them. The doctrine is significant because it not only respects free will and personal rights of the parties, but also provides legal certainty and predictability to the parties; and is widely accepted as a means for efficiency. Furthermore, the principle stands on firm economic grounds, and has displaced the traditional connecting factors for contracts conflicts, viz, the place of the conclusion of a contract (lec loci contractus) and the place of performance (lex loci solutionis) as the governing law.
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