Collective Commentary about the New Package Travel Directive

482 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE b) For international contracts As mentioned, the freedom of agreement between the parties is an essential principle of the private law of contracts, recognized expressly or implicitly in all legal systems of civil law and even in systems of common law (freedom of the contract) 8 . The freedom of agreements is configured as the main source of obligations in all comparative law, both in substantive law and conflict law. In international contracts, the freedom of agreements acquires a broader dimension because it allows them to escape from the rules of the States with which their relations are linked, through an agreement about the choice of law. This conflictual autonomy is recognized in all systems of Private International Law, as can be seen in the work carried out within the Hague Conference on Private International Law 9 . However, there are rules that limit the exercise of conflictual autonomy, based on state, institutional and international interests and objectives. Each State puts forward mandatory norms that safeguard its own market or that try to guarantee the balance between the parties of the contract, in such a way that they are applicable whatever the law chosen by the parties. In this context, the imperative nature of the Directive (Art. 23) plays an important rule to determine the applicable law to package travel and linked travel arrangements. Usually, package travel and linked travel arrangements are subjected to general terms and conditions, and among its conditions we find clauses linked to the choice of law for the contract. If we take a look, for example, at the general terms and conditions of eDreams 10 , one of the world’s leading online travel agencies, present in 33 countries, we find clauses of applicable law: “These T&Cs, as well as any relation between eDreams and the User, shall be governed by the laws of England and Wales”. The imperative nature plays an important role to determine the validity of those choices of law terms, which should be determined in accordance with the particular type of contract. As regards contracts concluded with parties considered weaker (travellers), those parties should be protected by conflict of law rules that are more favourable to their interests than the general rules 11 . 8 In Spanish Law, vid: Artículo 1255 Código Civil (Spanish Civil Code): “ Los contratantes pueden establecer los pactos, cláusulas y condiciones que tengan por conveniente, siempre que no sean contrarios a las leyes, a la moral ni al orden público”. 9 Vid: “Choix de la loi applicable aux contracts du commerce international: Des Principes de La Haye?, RCDIP, n.º 1, 2010, pp. 83-102 and more texts: http://www.hcch.net . 10 See www.edreams.com. 11 See, S. FELIU, “Package Travel and linked travel arrangements: International protection for traders or for travellers?”, The New Package Travel Directive , V. Franceschelli; F. Morandi; C. Torres (Ed.), Lisboa, 2017, pp. 197-212.