Reflections on the Role of Party Autonomy in International Family Law

Cristina González Beilfuss

The present study explores the rationale of party autonomy in International Family law. It distinguishes the abstract function of the choice of law rule from the reasons for activating it and concluding a choice of law contract. Whereas the reasons of the parties prevail in the latter, when parties select the applicable law in accordance to their interest and convenience, the function of the party autonomy rule is fixing the legal context of their relationship. This is particularly interesting since mobility has become circular and an increasing number of families leads a truly transnational life. It is also particularly adequate as a counterweight to objective rules designating the law of habitual residence.

Party autonomy in choice of law is, however, not without risks in a context of family relationships where parties do not necessarily seek the maximization of individual interest and where gender roles emerge forcefully in connection to the care required by vulnerability and dependency.

1. Introdución.—2. Sobre la función y los motivos.—3. Autonomía y vulnerabilidad.—4. Conclusiones

choice-of-law contract; nature of family relationships; Party autonomy; rationale;

REDI Vol. 72 1 2020




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