Il governo della discrezionalità e dell’arbitrio contrattuale. Brevi appunti a partire dal diritto inglese

The chapter discusses two issues related to contractual discretion under English law and suggests their relevance in sparking debate amongst Italian lawyers. In particular, firstly, it questions the justification for limiting private autonomy and reviewing the exercise of contract powers. In doing so, it contrasts the theory that rests on an implied term in law, grounded on considerations of fairness and good faith, with the idea that restraints on unilateral powers can descend directly from the contract and from parties’ expectations. Secondly, it discusses the similarities and differences between ‘public’ and ‘private’ powers and the appropriateness of a single framework for their review under the UK Supreme Court’s decision in Braganza v BP Shipping.