The Futility of Unification and Harmonization in International ...

38of such arguments introduces an element of legal risk. But they do not provide a rationale for anabsolute prohibition on free choices of law.More to the point, these reservations indirectly support my critique of international lawmaking.If certain interest groups have enough influence not only to capture national law but to force theirbusiness partners to submit to the law they have shaped, surely they can dominate any internationalprocess. And we should regard an international standard that serves the redistributive ends of aninterest group as the worst possible outcome, because it makes evasion of rentseeking even moredifficult.Expanded Choice. One of the bedrock assumptions of contract law has been that, all other thingsbeing equal, giving parties as many legal possibilities as possible increases the likelihood that peoplewill construct relationships that best suit their needs. This tenet coexists with the belief that, withinreason, people also benefit from committing in advance to restrictions on their freedom of action.A core conviction that unites these two propositions is that business people, if not burdened by anydisability or victimized by fraud, largely can make effective choices about the scope, strength andcontent of the legal obligations they need to assume to pursue their objectives. And allowing themto make these choices in turn provides society as a whole with more and better information abouttheir preferences and how to implement them.Few would argue today that limitless expansion of contractual choices necessarily benefitscontractors. Some desirable solutions to collective action problems result in coercive rules, and inany event people in the real world operate under a wide range of disabilities and information deficits.We also recognize a large number of contractual choices that generate negative externalities, suchas commitments to form cartels or to pollute the environment. Only unreconstructed libertarianswould reject the need to restrict freedom to contract in these instances.But none of these reasons for limiting contractual choices undercuts the fundamental point. Thearguments in favor of expanded freedom of contract seem sufficiently appealing, at least in thecommercial world, to justify a presumption in its favor, with the burden of justification resting onthose who would restrain it. Allowing business people to elect in and out of national commercial lawsystems follows from this general proposition. The issue then becomes what specific objections mightone raise to these particular choices.The most obvious category of arguments against expanded choice rests on fears about races tothe bottom. Jurisdiction might compete for businesses not by offering them legal rules that generallyadd value, but rather by tolerating arrangements that generate negative externalities. A country mightallow itself to become a haven for cartels, con artists, or polluters, in part by allowing firms engagedin these practices to contract out of liability for the harms they produce. States might be especiallyprone to compete in this fashion if others outside of their jurisdiction were to bear the brunt of theharms. If we augment this story with fears about powerful firms imposing contracts of adhesion onhelpless consumers, the problem becomes even greater. Predators will force those with whom theycontract to accept national legal regimes that contain malignant rules.