The course Party Autonomy in International Family Law given by Cristina González Beilfuss at the Hague Academy of International Law in Summer 2018 has recently been published in volume 408 of the Academy’s Collected Courses (Recueil des cours).
As explained in the summary:
Party autonomy, i.e. the power of parties to select the applicable law, is increasingly used in international family law. This course follows this development and questions whether rules that have been developed in relation to commercial contracts work also for personal relationships. This involves an in- depth analysis of the functions of party autonomy in Private international law and the needs of families in contemporary society. The latter has often been neglected in Private international law theory that has uncritically assumed a normative idea of family life and failed to consider the care work families do in society and the different roles assumed by family members in accordance to gender.
The course is divided into an introduction and five chapters, followed by an extensive bibliography. In the introduction, the Author defines party autonomy “as the principle according to which parties to an international relationship are free to choose the applicable law” or to “deselect the law that would apply on objective grounds, including its mandatory rules, and to stipulate the application of another law”. The course also deals with dispute resolution, but only to the extent it opens possibilities for indirectly choosing the applicable law. The family is understood broadly. Geographically, the research encompasses, in general, Europe.
The structure of the course is as follows:
In Chapter I, I will describe the role of party autonomy in private international law. After a short overview of developments in other subject areas, namely in contract, tort, property and succession, I will map family law more exhaustively, and explore both horizontal and vertical family relationships in order to show the opportunities for direct and indirect party autonomy.
In Chapter II, I will investigate the theoretical foundation of party autonomy in relation to, in particular, family law. I will try to find out which is the function of the party autonomy rule and why families might benefit from selecting the applicable law, if allowed to do so. In this chapter, I will also try to determine whether there should be any limits to party autonomy, in particular, in view of the special character of family law.
Chapter III will deal with the choice of law contract and examine party autonomy from a contractual perspective. I will try to determine the requirements parties need to comply with to materialize their intention of selecting the governing law. The approach in this chapter is principled. I do not only examine the law as it stands but try to critically determine whether present rules provide satisfactory solutions in a family law context.
Chapter IV then examines restrictions to party autonomy. In accordance with the findings of Chapter II, it is claimed that party autonomy needs to be regulated and restricted in order to ensure that it works in favor of family and not against it.
Chapter V finally examines indirect party autonomy, a number of strategies that parties can resort to, when party autonomy is not openly accepted, that, in the end, allow them to select the law applying to their legal relationship.
For more details (including table of contents and bibliographical note on the Author) please consult Brill’s website. The course is already available online (for example, for holders of Peace Palace Library card).