Party Autonomy In Latin America

Party autonomy in international contracts is widely accepted worldwide and said to belong to the "common core of the legal systems". However, it is not statutorily accepted in some Latin American countries due to historical reasons. -- The consolidation of autonomy is needed in these countries since choice of law clauses are commonly included in international contracts connected to them and national courts vacillate as to upholding these clauses or not. This consolidation will secure the validity of these clauses and eradicate juridical uncertainty about their efficacy. Further, it will help to update, perfect and harmonize conflict rules which arc now quite diverse and sometimes inadequate to determine the law governing contracts. -- OAS intended that this consolidation be produced by The Inter American Convention on the Law Applicable to International Contracts, Mexico 1994. This Convention, however, seems to have failed in its objective. It has received only two ratifications and whether there will be more is uncertain due to its restricted scope of application, the need to supplement the Convention with national conflict provisions which do not exist in some countries and its conflict with the legal tradition of some of the countries. -- The consolidation of autonomy will require harmonising amendment of the domestic rules on contracts of those countries which reject or have no rules on autonomy. This amendment might be fostered by a non-binding instrument - a Model Law or a set of General Principles on Choice of Law in International Contracts- drafted by an authoritative international organ such as UNCITRAL or the Hague Conference on Private International Law that includes rules on autonomy widely accepted in comparative law but also respectful of the Latin American legal tradition.