El derecho aplicable al contrato. Estudio comparado, crítico y prospectivo en Derecho internacional privado colombiano

Colombian Private International Law is dependent on a publicist approach that rests on the principles of territoriality and sovereignty. These principles, although abandoned since the beginning of the 19th century in comparative Private International Law, still constitute the foundation of the conflict rules in contractual matters that form positive law. Although Colombian jurisprudence has used methods that are similar to others recently proposed in the United States and France, the Colombian system does not offer satisfactory solutions to the problems posed by international situations between individuals, even in contractual matters. Colombian Private International Law must then be rethought. In this regard, it is possible, under the texts in force, to justify both the transformation of the approach and the adoption of new solutions. In terms of contracts, it is possible to identify within the Colombian legal system a favorable trend towards the consecration of the freedom to choose the applicable law as a solution in principle. Indeed, this solution is in accordance with the constitutional principle of internationalization and compatible with the role recognized for private initiative in Colombian law. Widely spread in comparative Private International Law; Freedom of choice is favored by international institutions, and in 2015 the Hague Conference published the "Principles on the Choice of Law Applicable to International Commercial Contracts." This non-coercive instrument can serve as inspiration for the development of a regulation of the choice of law in Colombian law.