Editorial | Volume 26 | Special Issue 5

Dear Readers and Friends,

Dispute resolution agreements – forum selection, arbitration, and choice-of-law clauses – are ubiquitous in modern business relationships, in both consumer and commercial contracts. Parties get to bargain on the ‘law market’, by virtue of their private autonomy, and tailor where and under what law their disputes will be resolved. Yet that optimistic vision hits a reality that is often different, where such clauses hide in the fine print of standard contracts, imposed on consumers or employees with no real chance to negotiate or understand the rights they are relinquishing. Our latest Special Issue, carefully assembled by Gralf-Peter Calliess and Nicholas Mouttotos (Bremen) thus asks what type of ‘(Informed) Consent to Dispute Resolution Agreements’ should be required and how such consent can be practically ensured. This challenge of securing truly informed consent in dispute resolution clauses cuts to the core of modern contract and conflict-of-laws debates, and invites a comparative EU-US perspective.

The Hanseatic port city of Bremen, where this Special Issue took shape and was first presented, fittingly recalls the US Supreme Court’s landmark decision in The Bremen v. Zapata Off-Shore Co. (1972) — a case that affirmed party autonomy in forum selection. In a dispute arising from a drilling rig towed from Louisiana to Italy, which foundered in the Gulf of Mexico, the Court upheld a clause designating the High Court in London, describing it as ‘a freely negotiated private international agreement’ and emphasizing the need to ‘honor the parties’ bargain.’  The contributions gathered here enrich and complicate this narrative.

Here is what you will find:

Symeon C. Symeonides opens the issue with a panoramic history of the principle of party autonomy. He traces its lineage from an edict of Ptolemaic Egypt through the writings of Dumoulin, Savigny, and Mancini, to its modern codification in the Rome I Regulation and the Hague Principles. Along the way, he recounts how the decision in The Bremen linked the idea of contractual self-determination to the freedom of navigation in international law.

Nancy S. Kim turns to the meaning of consent in modern contracting. Her article dissects dispute-resolution clauses in adhesion and digital contracts, showing how formalistic understandings of consent obscure profound asymmetries of power and information. Drawing on behavioural research and contract theory, she argues for a reconceptualization of consent that accounts for cognitive limitations and structural inequalities.

Gralf-Peter Calliess reframes autonomy within a constitutional setting. He argues that genuine freedom of contract presupposes institutional guarantees of access to justice. By linking autonomy to the right to an effective remedy, Calliess portrays contract law as a reflexive system—one that both enables and constrains private self-ordering through constitutional principles of fairness and accountability.

Frederick Rieländer offers a detailed comparative study of how the US and the EU scrutinize consumer contract terms. Contrasting the EU regime under Directive 93/13/EEC with the American Restatement of Consumer Contracts, Rieländer shows divergent strategies of substantive (EU) versus procedural (US) safeguards and argues for an extended personal scope to include small- and medium-sized enterprises.

Peter McColgan argues that the long-celebrated ‘information model’ of consent has exhausted its promise. Disclosures and tick boxes, he contends, have become performative rituals that license inequality rather than mitigate it. McColgan proposes moving toward a responsibility-based model in which substantive fairness defines valid consent.

Laura E. Little examines the current status of the contractual choice-of-law clauses in the US Draft Restatement (Third) of Conflict of Laws. She traces how the Restatement (Third) seeks to reconcile deference to party choice with federal constitutional constraints and evolving notions of fairness.

Kermit Roosevelt III takes that inquiry further by unpacking what parties actually select when they invoke a state’s law. Is it the text of statutes, the interpretive practices of its courts, or an abstract system of norms detached from public policy? Roosevelt argues that a state’s ‘law’ is an evolving composite of legislation, interpretation, and policy, and the process of choice inevitably implicates the interests of other jurisdictions.

Sören Segger-Piening explores how European consumer law and conflict rules intersect. Using the CJEU’s Amazon decision as a case study, he shows how pre-contractual information duties can have ex-post consequences for determining the applicable law. When traders provide information based on one legal system, those disclosures may implicitly anchor the contract in that system’s law, thereby constraining or even overriding a contrary choice-of-law clause.

John F. Coyle charts how US courts interpret and enforce forum-selection clauses—particularly those embedded in adhesion or standard-form contracts. Drawing on a broad survey of recent federal and state case law, Coyle traces the evolution from early judicial hostility to the robust presumption of validity established after The Bremen.

Hannah L. Buxbaum turns to the growing use of forum-selection clauses in consumer and employment contracts, examining how anti-waiver provisions in US and EU law operate not as paternalistic exceptions, but as structural safeguards of meaningful autonomy. Buxbaum argues that access to justice is a precondition, not a limitation, of legitimate contractual choice.

Marta Pertegás Sender situates consent to jurisdiction within the overlapping frameworks of the Brussels I Regulation and the 2005 Hague Choice of Court Convention. She compares their approaches to consent verification and enforcement, highlighting the quest for coherence between regional and global instruments while stressing peculiarities of the EU’s internally coherent system anchored in mutual trust among Member States.

Stephen Ware investigates how far contractual autonomy can reach before it undermines constitutional guarantees. His analysis revisits the rise of arbitration clauses in consumer and employment contracts, situating them within the Supreme Court’s long and sometimes uneasy jurisprudence under the Federal Arbitration Act.

Stefan F. Thönissen turns the lens to the German legal order to analyze the effectiveness of arbitration Agreements in Germany. He examines how German courts have reconciled strong pro-arbitration principles with the constitutional right of access to the courts under Article 19(4) of the Basic Law. This reflects a model of arbitration that stresses both efficiency of private adjudication and constitutional guarantees of due process and judicial oversight.

Nicholas Mouttotos concludes the Special Issue by weaving together the threads of the preceding contributions. He surveys the fragmented international landscape of jurisdictional and arbitration agreements and asks whether a unified global framework might be possible. Mouttotos proposes a measured path toward convergence by articulating shared minimum standards of consent and fairness.

Taken together, these contributions present party autonomy as a dynamic principle shaped at the intersection of private ordering and public regulation—extending the voyage of The Bremen into constitutional waters.

As always, happy reading,

Klaas Hendrik Eller
on behalf of the GLJ Editors-in-Chief