Party autonomy in international commercial contracts in Brazil

Abstract

While acceptance of party autonomy in choice of law in the field of international contracts is a widely accepted principle in Europe, especially after the enactment in 1980 of the Rome Convention, substituted by Rome I Regulation, in Brazil, unfortunately, the situation is not so clear. There is a practical difficulty in applying the existing international treaties in the country. Even though Brazil has participated in all the conventions of private international law that have taken place in America in recent years (Montevideo Conventions, Havana Convention, where it was adopted the Bustamante Code and Mexico Convention), it has ratified only one: the Bustamante Code of 1928, which does not explicitly accept party autonomy in choice of law in the field of international contracts. Furthermore, in the absence of the application of international conventions, intern rules of private international law will be applied. Regarding Brazilian domestic law, the problem is even more complex: Brazilian legislation does not explicitly accept party autonomy’s principle in the field of international commercial contracts. Nevertheless, despite this lack of legislation, the majority of the doctrine categorically affirms that the principle of party autonomy is implicitly accepted in Brazil. There is also an inclination in case law to accept party autonomy in cases involving international commercial contracts in Brazil, especially after a judgment handed down in 2016 by the Brazilian Superior Court of Justice that clearly accepted the choice of law made by the parties. Therefore, the acceptance of party autonomy in Brazil in the field of international contracts does not come from the text of the law itself, but from the legal doctrine and from case law, both based rather on other sources of law, such as domestic law (as Brazilian Arbitration Law) and international sources of law, such as international treaties, whether they are related to choice of law (as Mexico Convention and Rome I Regulation), or uniform international treaties (as Vienna Convention on the Sale of Goods), or even soft law (Hague Principles about the choice of law in international commercial contracts) and lex mercatoria.