Abstract
LL.M. (International Commercial Law)
Due to globalization consumers nowadays readily enter into cross-border transactions,
and it is therefore almost universally acknowledged that these transactions will be
governed by the law chosen by the parties, albeit that this may not be the domestic law
of the consumer’s home country.
Choice-of-law agreement is an incidence of the doctrine of party autonomy, and in the
field of private international law the latter gives expression to the principle of freedom of
contract. Party autonomy allows the parties to select the law that will govern their
contract, but it is not unrestricted, and is limited to protect the consumer. This is done
by, for example the application of overriding mandatory statutes. If the consumer
legislation in Australia and South Africa are overriding mandatory statutes, Australian
and South African consumers will be protected. The Australian Competition and
Consumer Act 2010 (Cth) Schedule 2, commonly referred to as the Australian
Consumer Law, is an overriding mandatory statute, and cannot be excluded by the
foreign law chosen by the parties in consumer contracts falling within the ambit of the
Australian Consumer Law.
The South African Consumer Act 68 of 2008 is not an overriding mandatory statute, but
nonetheless protects South African consumers if the consumer contract falls within the
ambit of the Consumer Protection Act. This is done by either curtailing the effects of
party choice-of-law agreement by preferring the law (whether the chosen foreign law or
the domestic law of the consumer’s home country) providing greater protection to the
consumer as compared to the other, or by disallowing the parties from waiving the
statutory protective measures in the Consumer Protection Act.
In Australia and in South Africa both natural persons and, in certain instances juristic
persons are protected by the Australian Consumer Law and the Consumer Protection
Act, respectively, thus taking the field of consumer protection into the commercial
sphere.