An Enhanced Role for Party Autonomy in the Applicable Law for Non-Contractual Obligations

The applicable law rules for tort and contract in Australian private international law have developed in isolation from one another. The reason for this tendency is that tortious and contractual claims have long been regarded as distinct causes of action, despite often arising from similar factual circumstances. Consequently, where cases of concurrent liability in tort and contract occur, common law courts have traditionally permitted claimants to rely on the applicable law rules of either or both tort and contract to secure the most beneficial governing law. This article considers whether such ‘freedom to plead’ should remain permissible in all circumstances or whether the doctrine of party autonomy may offer a preferable approach. Party autonomy is a well-accepted doctrine that allows parties to choose the law and forum to determine their disputes. While commonly employed in the areas of arbitration and jurisdiction agreements, and in governing law clauses for claims in contract, it has not yet been applied by Australian courts in the context of the applicable law for torts and other non-contractual obligations. By reference to developments in other common law jurisdictions and the European Union, this article suggests a framework for its adoption.