A GJ Topics article.

Abstract

Horatia Muir Watt and Luca Radicati di Brozolo have highlighted the circumstance that in an increasing number of contractual relationships the grasp of mandatory rules belonging to a specific national legal order may be reduced, by several devices. The reading of the article causes a number of considerations. As a first reaction one is drawn to reconsider one’s long lasting persuasion: the strong attachment of a national legal system to the ordre public’s exception may finally be declining, contrary to previous experience. Secondly, one has to reconcile the new data collected by the authors with indications pointing in a different direction: some of them emerging from the Inter-American Convention on the Law Applicable to International Contracts (Mexico City). Scholars show different reactions to a possible decline of the enforcement of mandatory rules: some writers are heartily in favour of a stronger competition between legal systems, cleared from restrictions depending on the “mandatory character” of certain rules. But elsewhere we also find voices advocating the intervention of supranational legislation in order to preserve some standards independently from the various States’ policies. Curiously enough some sources of private legislation, such a the UNIDROIT Principles of international commercial contracts, conceived as eminently optional instruments, choose to qualify some of their provisions as mandatory (e.g. the good faith principle): you may choose whether or not to apply the Unidroit Principles, but once you opt in, you may not get away from some of its provisions.

Originally published in Global Jurist Topics.

Recommended Citation

Ferreri, Silvia (2004) "The Autonomous Contract and Declining Mandatory Rules. A First Reaction to an Article by Horatia Muir Watt and Luca Radicati di Brozolo.," Global Jurist Topics: Vol. 4 : Iss. 3, Article 1.
Available at: http://www.bepress.com/gj/topics/vol4/iss3/art1