Hanoch Dagan (Tel Aviv University) and Sagi Peari (University of Western Australia) have posted on Choice of Law Meets Private Law Theory on SSRN.
Choice of law can, and often should, be an important feature of an autonomy-enhancing law as it expands the possible frameworks within which people can govern their affairs. The theory of choice of law we develop in this article builds on three core notions that dominate existing doctrine — states, party autonomy, and what we loosely refer to as ‘limitations’; but it releases choice of law from its subordination to private international law (or its inter-state equivalent in federal contexts). As a freestanding concept, choice of law belongs to private law’s empowering sections and thus participates in the obligation of liberal states to proactively promote people’s self-determination. This foundation of the field refines its three fundamental notions in a way that facilitates their peaceable cohabitation. It also recalibrates the boundaries of choice of law doctrine, clarifies its prescriptions, and offers grounds for its reform.
The paper is forthcoming in the Oxford Journal of Legal Studies.