5. Conclusion
As the preceding discussion has shown, there are two distinct aspects to how private international law controls the enforceability of forum selection clauses: first, a contractual analysis based on unconscionability and secondly, privacy and consumer rights as an aspect of the application of public policy. While in practice both doctrines may overlap in the argumentation of the courts, conceptually it is important to make a distinction between them, for the reason that contract law is based on the free will of the parties and a respect for their negotiated agreement, which is only restricted to the extent that adhesion contracts do not give sufficient notice and/or contain unconscionable clauses. By contrast, public policy and the protection of privacy as a fundamental right override the free will of the parties in the public interest. While public policy has receded in the background for a number of years, the most recent case law is based on strong public policy arguments. It is argued here that both aspects (contractual and public policy doctrines) are paramount for achieving not only justice between the parties of a dispute but also ensuring good administration of justice in the public interest. In particular, in cases where fundamental rights such as the right to privacy are engaged, public policy should play a role in upholding local values and protecting consumers from having to litigate in distant courts under unfamiliar laws. Thus, public policy has a role to play both in respect of court jurisdiction as well as in respect of applying local (privacy) laws as mandatory laws.
