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Title: Party autonomy and small business protection in cross-border commercial contracts under EU private international law : a critical analysis of the Brussels I and Rome I regulations
Author: Janahi, Wafa
ISNI:       0000 0004 5919 6909
Awarding Body: University of Bristol
Current Institution: University of Bristol
Date of Award: 2015
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This thesis analyses the extent to which EU private international law (PIL), namely the Brussels I and Rome I Regulations, provides a fair regime for EU-based small businesses engaging in cross-border contracts. Unlike consumers, small businesses are not afforded special protective rules under these EU Regulations, although they can be in a weak bargaining position very similar to that of ordinary consumers. Indeed, the general rules of EU PIL do not take into consideration the position of small businesses as weaker parties. By the law's failure to protect small businesses' interests, a real problem of unfairness arises. The analysis focuses on the unfair effects of jurisdiction and choice-of-law clauses in business-to-business (B2B) contracts. The thesis argues that these clauses can, inter alia, have the effect of undermining or defeating the right of access to justice of the weaker party (the small business). This thesis highlights some of the problems associated with upholding jurisdiction and choice-of-law clauses in contracts between small businesses and large corporations. Several options for addressing these problems have been suggested. However, these suggestions often clash with the principle of party autonomy, a widely recognised principle in international trade and PIL, and, as a result, are hard to implement in practice. Therefore, this thesis suggests that a minimum harmonisation in an EU directive for the protection of small businesses against unfair terms in standard-form contracts (i.e. abusive party autonomy) is necessary. Such an instrument would be imp0l1ant not only for promoting small businesses' access to justice but also for enhancing competition by increasing small businesses' confidence to participate in cross-border contracts.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available