INTRODUCTION

The topic of norm creation by contract is to a certain extent a mainstay of private international law, at least as applied to markets. It rests on what is arguably the most significant contemporary principle within the discipline, ‘party autonomy’’, or contractual freedom of choice of the governing law. Such a principle fulfils a key function within the political economy of private ordering in today's global context. Indeed, while such a principle emerged as part and parcel of the ‘mythology of modern law’’, it has also worked, less visibly, to destabilise modernity's assumptions about the relationship between law and sovereignty, which are now, in the ‘era of the post’ at the heart of considerable turmoil. Critical legal scholarship has highlighted the ways in which the principle of party autonomy empowers the fiction of an autonomous private transnational legal order and, by the same token, fits it into the wider debate on the future of law beyond the state.

The potential relevance of this project for an audience of contract lawyers is obviously linked to the fact that contract is the cardinal tool by means of which market players with local affiliations may rise above the constraints and contingencies of restrictive regulation designed for domestic consumption and thereby deploy their activities unhindered in a disembedded ‘space’ beyond the state. Indeed, the conceptual correlate of this empowerment of private actors to create their own normative space is the existence of an original lawless hinterland beyond the jurisdiction of nation states. According to the received wisdom of the discipline, that hinterland came to be filled up (at various points in history, according to the particular narrative) with the spontaneous self-regulating contractual practices, for the greater benefit of international trade, or the worldwide community of merchants, under the benevolent gaze of territorial sovereigns. Classical historiography locates the genesis of party autonomy in a famous consultation by Charles du Moulin on the conflict of laws in matrimonial property in the early 16th century. Five centuries on, it is still the legal linchpin of some of the most powerful drivers of the global economy.