The possibility of establishing issues that guarantee legal security to the contracting parties: competent courts and applicable law.
He exchange of goods is always positive, regulations that do not encourage and enhance nationalism are optimal for the proper functioning of the market. Nowadays, it is easy to see that the world is completely globalized. The market is global and there are no watertight commercial “islands”, any contingency affects the market, the global market.
It is a fairly clear question that the exchange of goods is necessary for a increase in wealth. Therefore, the prevention and predictability of possible contingencies that may arise from that international commercial activity must be included in the contract clauses. The optimal drafting of the contract, the choice of the right clauses that make it up will avoid future litigation.
Competent courts and applicable law
The parties, by virtue of their autonomy of will, may expressly submit to some courts, under the rules of the Brussels Ia Regulation, but they will obtain extra security and certainty if they also choose the law applicable to their contract. A proper choice of the court and law applicable to the contract may determine a optimal end of controversy and predictable for the parties, ensuring them a forecast of what may happen with their contracts in an international context, which in itself, in its own context, presents great insecurity. If the parties have already chosen these issues, have agreed on them and reflected them in their contract, then those same parties will not use resources on instrumental issues such as specifying which is the competent court and which is the applicable law.
The Law that regulates the contract, the Lex Contractus, stated in the Rome I Regulation, and it will be the Law under which the contract is interpreted. Therefore, a valid choice of law and prior to the emergence of litigation can offer legal security for the parties who hire international level. Respect for the autonomy of the will of the parties is a fundamental principle in European contract law.
Therefore, in the exercise of their private autonomy and within the limitsmites established by state law, those involved in a legal transaction can agree on the submission of their disputes to the courts of a specific State, expressly. Hence, private autonomy in the form of free choice of Law and free choice of court leads to the efficiency of Private International Law.
The Law of the contract is determined by the Rome I Regulation. The Contract Law, which may be the one chosen by the parties, will tell us if the contract is still valid, if it is terminated or if it is executed on its own terms. This is a solution that is predictable for the parties and, therefore, efficient and entails reduced costs. This favors international exchange and that is always optimal.
It is a proven fact that the majority of contracts in international contracting are subject to English law, the parties choose this Law and one of the main reasons for this choice is that English Law respects contractual clauses, judicial intervention in the interpretation of the contract is minimal. The parties prefer that the judge not intervene. The parties want legal certainty and their autonomy of will to be respected; they do not want a third party, in this case the judge, to be able to alter what was agreed upon. That is why they choose English Law, which offers them the maximum legal security. Likewise, in arbitration the express will of the parties is usually much more respected. The English law plays a notable role as Lex arbitri.
The arbitrator takes his power from the same indications of the parties. Arbitrators are not "the arm of the sovereignty of any State."«, in a famous phrase by D. A. Remiro Brotóns, but judges are that arm of the sovereignty of a State. And hence, the judge can do what he deems appropriate in the interpretation of the contract, however, an arbitrator is more strictly subject to what is agreed upon by the parties. For the arbitrator, the Law is what the parties say, the supreme evaluative element for the arbitrator is what was agreed upon by the parties, however, the supreme evaluative element for the judge is what the State says. What the parties wanted must be respected to the maximum by the arbitrator, however, the judge in the application of the Law has greater power to correct the contract if necessary.
