Freedom of contract, bargaining power & forum selection in bills of lading

The ability of the parties to conclude binding agreements, and to determine the contents of these agreements, is at the very core of our market system. They are the consequence of our liberal understanding of personhood, placing individuality and autonomy as essential elements of our personality. Despite the importance of these concepts, however, the content of freedom of contract has experienced significant changes throughout the years, as more and more limitations are imposed upon it. This new understanding rests on the idea that not all parties are the same, and that there are certain matters that should not be modified by mere agreement. Our work focuses on the relation that freedom of contract (and its limitations) has with forum selection clauses, as well as whether they can be seen as abusive terms. In order to conduct this analysis, we use the case of maritime carriage contracts under bills of lading, reviewing the regulations that affect the trade, and whether changes need to be made to accommodate our new understanding.