Party autonomy in international commercial contracts with a weak bargaining party: inherent challenges and possible solutions

The Inter-American Juridical Committee (CJI) adopted a report entitled “Party autonomy in international commercial contracts with a weak bargaining party: inherent challenges and possible solutions. Report and recommendations of good practices,” document CJI/doc.683/23 rev. 3, on December 12, 2023 at the IV Special Session – held in virtual format. The report focuses on various forms of accession contracts, entered into between merchants at the international level in a context involving one of the parties lacking bargaining power in terms of choice of law or judge. It provides information on the relevant regulations, practice, and domestic and international jurisprudence, and identifies similarities and differences among the OAS member states. The report notes, furthermore, that there are no developments or comments on the matter of party autonomy in conflict of laws in asymmetrical contracts, given that the regulations deal with contracts under which all parties have an equivalent bargaining power.

This proposal offers a variety of formulas for contracts that exclude the autonomy regime, notably:

• Regulation of unfair competition;
• Respect for public order and the principle of equality of the parties before the law;
• Exclusion of abusive clauses or clauses that are not freely consented to by all parties;
• Application of the UNIDROIT principles.

In addressing this topic, the Inter-American Juridical Committee has examined the following background information over the years:

• 2023
  CJI/doc.683/23 rev.3 Party autonomy in international commercial contracts with a weak bargaining party: inherent challenges and possible solutions. Report and recommendations on good practices, (report by the Inter-American Juridical Committee).
  CJI/doc.683/23 rev.1 Party autonomy in international commercial contracts with a weak bargaining party: inherent challenges and possible solutions. Report and recommendations on good practices (report presented by Dr. Cecilia Fresnedo de Aguirre).

• 2022
  CJI/doc.660/22 Second progress report. Contracts between merchants with a contractually weak party (report presented by Dr. Cecilia Fresnedo de Aguirre).

• 2021
  CJI/doc.642/21 First progress report. Contracts between merchants with a contractually weak party (report presented by Dr. Cecilia Fresnedo de Aguirre).