Reflexive Contract Law

Under the rule of law, everyone has a constitutional right to a remedy—that is, access to a court that decides a dispute over private rights and obligations according to the law of the land. Dispute resolution agreements are an instance of reflexive contracting, in other words, agreements on which substantive and procedural rules shall govern a contractual relationship. Where the choice for one or both parties is for a law or forum other than that applicable by default, dispute resolution agreements contain a waiver of the constitutional right to a remedy according to the law of the land. Party autonomy—that is, the freedom to contract on the rights and remedies applicable to the main contract—is conferred by reflexive contract law, that is, the law applicable to dispute resolution agreements. In this article I argue that reflexive contract law, in specifying the conditions under which reflexive contracts are enforced by the state, shall reflect the extent to which agreements to arbitrate, on forum selection, or on choice of law interfere with the constitutional right to a remedy. Coherent requirements as to the form and validity of consent, ex-ante information, or ex-post judicial control shall be proportional to the entailed dangers and the proficiency of the involved parties. However, as dispute resolution agreements are regulated by diverse instruments on the national, supranational, and international levels, consistency is very difficult to achieve. Moreover, the US and EU regulatory approaches regarding the protection of consumers and employees seem to be incommensurable

Autonomy · Common law · Constitutional law · Dispute resolution · Judicial review · Reflexivity · Substantive law · Waiver · Dispute Resolution and Class Actions · European and International Contract Law · International Arbitration and Investment Law