Theorie der Rechtswahl oder Parteiautonomie als Grundlage des Internationalen Privatrechts

Theory of Choice of Law Party autonomy is acknowledged in an increasing number of areas of the law by positive conflict of laws legislation across the globe. However, its theoretical foundations are unclear and have even been neglected for decades: The practical benefits arising from party autonomy were considered to be sufficient. But legislation rejecting party autonomy like that in some Latin-American or Middle-Eastern countries is difficult to counter on that basis. The article therefore explores the theoretical counter arguments against party autonomy rooted in a sovereignty-based conception of the law prevailing since the Hegelian philosophy which is reflected by contemporary political conceptions of the law as a countervailing measure against a social disequilibrium. Drawing from the philosophy of the Enlightenment the author develops a two-pronged theory of the free choice of law whose core is part of the natural rights of the individual in a multi-jurisdictional world, but whose corona consisting of multifarious limitations has to be established and ordered by the positive conflict rules of the various jurisdictions. This theory would apply, not only to contracts, but also to other areas of the law such as family law or the law of succession, intellectual property or tort law where the positive restrictions of the free choice of law may, however, be more numerous and detailed than in the field of contracts.