The present thesis deals with analysis of the unification at universal (within the framework of the Hague Conference on Private International Law (the “HCCH”) and regional level (the European Union (the “EU”), the Organization of American States (the “OAS”), Asian region (the Association of Southeast Asian Nations (the “ASEAN”)) and the Commonwealth of Independent States (the “CIS”)) of the rules that form the principle of party autonomy in international commercial contracts, being it in form of a binding or a non-binding legal instrument. The author does not investigate the unification of party autonomy in all spheres of private international law – property law, family law, inheritance law, non-contractual obligations, labor law, etc., but only in contractual obligations, namely obligations arising out of international commercial contracts. Consumer contracts and insurance contracts are partly considered in the thesis, but only in the light of the comparative analysis of the regulation of party autonomy for commercial contracts and for some types of contracts (in particular, consumer and insurance contracts) where the parties are not equal and one of them needs protection that shall be granted by specific regulation introduced by state. The author highlights the periods of unification of the rules of party autonomy and outlines the tendencies of future unification of that rules. The first period (1950-1980) was the time of creation of universal conventions within the framework of the HCCH; the second stage (1980-1990) was the time of unification by means of conflict of laws method within the framework of regional organizations – OAS, EU, and CIS. In Asian region there were actually no unification movements. Nowadays (since 2000) soft law instruments regulation dominates in the unification processes and particularly in the sphere of contract and commercial law. Soft law instruments are flexible; do not need any state approval, and potentially they can serve to much more actors that a binding instrument. In this light even the oldest world organization in the sphere of private international law unification, the HCCH decided to “move” from conventions to a non-binding instrument in unification of rules of party autonomy. The research focuses on the latest instrument adopted within the framework of the HCCH, namely, the Hague Principles of Choice of Law in International Commercial Contracts (the “Hague Principles”) of 2015 that compiles the “best practices” of a regime of party autonomy. The Hague Principles are an instrument that summarizes, on the one hand, the current most common and applicable rules that have been formed up to date (no need for a connection between the chosen law and the parties and/or a contract of the parties; conflict of laws are not included generally in the volume of the chosen law; severability of the agreement of the choice of law from the main contract; possibility to choose different laws for different parts of the contract; the rights of the parties to choose or modify a choice of law at any time, but that choice or modification made after the contract has been concluded shall not prejudice its formal validity or the rights of third parties; the “overriding” nature of mandatory rules and public policy over parties’ choice of law), and, on the other hand, new ones, namely those intended to solve traditional problems that arise when parties choose the applicable law (absence of special requirements to the form of agreement of choice of law; the possibility to choose non-state law by the parties, if it is permitted by law of a state court, agreement on the choice of law and battle of forms, broadening of the scope of the chosen law, etc.). The thesis focuses on regulation of party autonomy in Ukrainian legislation of private international law, highlights its issues, especially in the light of the Hague Principles and in comparison with the EU regulation – Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I). The author offers some amendments to the laws of Ukraine to make some rules more suitable for the parties and to eliminate legal uncertainty caused by some vague provisions of the Civil and the Commercial Code of Ukraine. The author analyzes the potential influence of the Hague Principles on national, in particular Ukrainian, legislator, on state courts and arbitration institutions and, especially, on international commerce actors. This thesis contains sufficient examples from judicial practice of EU and Ukraine, as well as multiple arbitration awards that show correlation between theory issues and their practical implications.
