L'autonomie in favorem : simple autonomie matérielle ou véritable autonomie conflictuelle ?

Abstract

In private international law, one of the first responses to protect the weaker party to the contract should be the full elimination of party autonomy. Nevertheless, the articles 6 and 8 of the Rome I regulation, relating respectively to consumer and employment contracts enunciate a kind of party autonomy called “in favorem” in which the law chosen by parties may not have the result of depriving the consumer or the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the objectively applicable law. This mechanism in favour of the weaker party distorts party autonomy’s proper functioning to such an extent that it could be reasonable to think that party autonomy is reduced to the one that exists at a national level, called material or substantial autonomy. Some authors have already examined this mechanism and among other things, the issue whether the appropriate lex contractus is the chosen law or the objectively applicable law but none of them has sought to explain the specific function of the latter in international consumer and employment contracts.

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