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European Journal of Social Sciences - Volume 2, Number 1 (2006) acknowledged and consequently accepted as the instrument embodying harmonized rules of the law applicable to contracts. It represents a codification of the private international law rules relating to contract that ‘are similar, if not identical, throughout the common law world outside the United States.’ A clear manifestation of this is the provision relating to the principles of party autonomy and the freedom of choice of law applicable to the contract in Article 3 under Title II Uniform Rules. Party Autonomy and the South African Bill of Rights Party autonomy, which has been notionalized on the universally recognized philosophical premise of individual autonomy, is an entrenched principle of private international law i.e. the conflicts law of a nation state. The question is whether it enjoys the same protection and respect as the fundamental rights and freedoms enshrined in the South African Bill of Rights (Chapter 2 of the Constitution of the Republic of South Africa, Act 108 of 1996). At first blush, party autonomy is not a freedom or right that is specifically protected by the Constitution nor does the Constitution ‘posit an independent right to autonomy’ as stated in Jordan & Others v The State CCT 31/01 at [53] What the Constitution specifically recognizes and protects is the right to freedom of trade. Section 22 of the Constitution provides that ‘[e]very citizen has the right to choose their (sic) trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law’ – law is understood to mean legislation, the common law and customary law. The choice of a trade suggests the pursuit of some commercial economic activity as distinguished from an occupation or profession. Implicit in such a construction is that freedom to trade would entail a freedom to contract of which party autonomy is a universally recognized principle. The inference is that the application of the principle of party autonomy is subject to constitutional scrutiny and for it to be recognized and protected it must pass constitutional muster. It may be argued that the freedom to trade is applicable to ‘citizens’ who are considered to be natural persons and not necessarily applicable to a ‘party’ which may include artificial persons as well. Whether section 22 would be applicable to artificial persons is a question of interpretation of the Bill of Rights. Section 8 (4) specifically provides that a juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person. But if ‘citizen’ is strictly interpreted as meaning a natural person, then it may be left to the courts to ‘lift the corporate veil’ and look to the members that control the affairs of the company (De Waal et al, 2000: 353). If this cannot be so then recourse may be had to the doctrine of objective unconstitutionality. Thus where a law unconstitutionally violates a section 22 right of a citizen, it is objectively invalid. A corporate applicant having an interest in terms of section 38 of the Bill of Rights can challenge the constitutional validity of such a law without having to show that its own constitutional right has been infringed by that law (De Waal et al, 2000: 353) Alternatively, even if it is argued that the Bill of Rights does not protect those rights and freedoms not specifically enshrined in it and that the freedom to trade does not extend to include the freedom to contract, it is submitted that the notion of party autonomy and its application may still be subject to constitutional scrutiny with reference to other relevant provisions of the Constitution, viz sections 2 and 39 (3). The supremacy of the Constitution is specifically enunciated by the Founding Provisions of Chapter 1. Section 2 of the Constitution provides that the Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. As regards the interpretation of the Bill of Rights, section 39 (3) provides that the Bill of Rights does not deny the existence of any other rights or freedoms that are recognized or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill. 74
International Research Journal of Finance and Economics – Volume 2, Number I (2006) Conclusion From the above it may be concluded that while party autonomy and the freedom to contract should be wide, it is nevertheless not absolute and may be limited by the common law, statutes and international conventions. But, however, since the very quintessence of the freedom of choice of law is an expression of individual autonomy, therefore any attempt to limit party autonomy should be exercised with considerable restraint whether by a court of law or by a law of general application. References: Books: 1. Collier JG Conflict of Laws 2 nd edition Cambridge University Press. 2. Chaskalson M et al Constitutional Law of South Africa [Revision Services 5, 1999] Juta & Company. 3. De Waal J et al The Bill of Rights Handbook 3 rd edition Juta & Co. Ltd 2000. 4. See Edwards ‘Conflict of Laws’ n 1 at 360 in LAWSA First Reissue Vol 2. 5. Forsythe C Private International Law 4 th edition Juta 1990 6. Forsythe C Choice of law and delictual obligations from Private International Law 2 nd edition Juta 1990 7. Joubert WA (ed) The Law of South Africa First Reissue Volume 2 Butterworths Durban 1993. 8. North PM (ed) Contract Conflicts North – Holland Publishing Company 1982. 9. Plender R The European Contracts Convention Sweet & Maxwell London. 10. Scoles EF, Hay P Conflict of Laws Hornbook Series St. Paul Minn West Publishing Company 1992. 11. Weintraub RJ Commentary On The Conflict Of Laws 3 rd edition Mineola New York The Foundation Press Inc 1986. 12. Wolff M Private International Law 2 nd edition Clarendon Press Oxford. Cases: 1. Commissioner of Inland Revenue v Estate Greenacre 1936 NPD. 2. Guggenheim v Rosenbaum (2) 1961 4 SA 21 (W). 3. Henry v Branfield 1996 (1) SA 244 (D). 4. Jordan & Others v The State CCT 31/01 5. Premier Wire and Steel Co Ltd v Marsk Line 1969 (3) SA 488 (C). 6. Regazzoni v Sethia [1958] AC 301 (HL). 7. Standard Bank of S A Ltd v Efroiken and Newman 1924 AD. 8. The Torni [1932]. 9. United Nations v Atlantic Seaways Corporation [1979] 2 FC. 10. Vita Food Products v Unus Shipping Co [1939] A.C. (P.C.). Legislation : 1. Basic Conditions of Employment Act Act 3 of 1983. 2. Electronic Communications and Transactions Act Act 25 of 2002. Conventions and instruments: 1. Convention on the Law Applicable to Contractual Obligations (The Rome Convention of 1980) 2. UNIDROIT Principles of International Commercial Contracts 75
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