Autonomia de voință– reflexie în dreptul internațional privat a libertății individuale ca drept fundamental al omului
Party autonomy – The Reflexion of Individual Liberty as a Fundamental Human Right in Private International Law

Author(s): Ana-Maria Dimofte
Subject(s): Human Rights and Humanitarian Law
Published by: Universul Juridic
Keywords: Party Autonomy; Individual Liberty; Human Rights; Fair Trail; Foreseeability Principle; Protection of The Weaker Party;
Summary/Abstract: Individual liberty represents the foundation of party autonomy, which includes its exercise in private international law matters, namely choosing the applicable law or the jurisdiction. It represents a fundamental right, established as a general principle ever since the adoption of the Universal Declaration of Human Rights in 1948, and creates a subjective right of the individual in relation to the State and to his or her peers. Nowadays, individual liberty, mirrored in private international law as the possibility for the person to choose the applicable law or to establish jurisdiction of a tribunal in certain matters, represents a key-tool that offers certainty to the parties in their legal relationship. This is the reason why there is a close connection between party autonomy and the right to a fair trial, established in most international treaties and instruments dedicated to the protection of human rights. The requirement of predictability, regarding both the applicable law and, even more significant, the jurisdiction is a key-component of the right to a fair trial and the exercise of party autonomy in these matters contributes to the fulfilment of this condition. Nevertheless, we must carefully consider the context in which the parties use their autonomy in private international law, as, in some matters, the weaker party may need special protection. In this case, in order to also ensure the access to a tribunal, there need to be established more restrictive conditions for the choice of jurisdiction or of the applicable law.

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