The Optional Instrument of European Contract Law and Freedom of Contract.

This paper considers Option 4 of the Green Paper which proposes a ''Regulation setting up an optional instrument in European Contract Law.'' It does so from the perspective of the dual vision of freedom of contract in national contract laws and in the Union acquis, visible both in its substantive law and its private international law: freedom of contract as promoting market transactions and freedom of contract as promoting individual autonomy. In this respect, in the case of consumer contracts, it argues that such an Optional Instrument would either not give sufficient recognition to the importance of the quality of consent of consumers or, if it did, the concomitant legal uncertainty would reduce its effectiveness in terms of the development of the internal market. Secondly, as regards commercial contracts, it argues that the existing balance between chosen applicable law and other laws (whether of the forum or the law otherwise applicable) in the Rome I Regulation should not be put aside without more explicit justification than an appeal to the economic advantages of an exclusive legal regime. Moreover, it argues that the limits on the effectiveness of choice of applicable law as regards non-contractual liability (whether pre-contractual or arising in the course of a contract) and difficulties of defining the scope of a system of rules of the likely breadth of the Optional Instrument are likely to generate both uncertainty and complexity for any businesses which were to choose it. [ABSTRACT FROM AUTHOR]