Private Law Theory

ABSTRACT
This contribution to Resolving Conflicts on the Law: Essays in Honour of Lea Brilmayer (published under the title ‘Choice of Law as Geographic Scope Limitation’) argues that the choice-of-law question commonly addressed by state and foreign courts is conceptually identical to the question addressed by federal courts in determining whether a federal statute applies to a dispute having foreign elements. The latter question is clearly understood today to relate to the statute’s territorial scope. State courts have long conceptualized the choice-of-law question in the same way. Faced with a state statute addressing the issue before it and phrased in all-encompassing terms, the courts assume that the legislature did not intend to legislate for the whole world. They assume that the legislature enacted the statute with the purely domestic case in mind, with the understanding that cases with foreign elements will be addressed through the application of prevailing choice-of-law rules. A state’s choice-of-law rules thus operate as background principles of interpretation to determine the territorial reach of state law, just as federal extraterritoriality doctrine operates as a background principle of interpretation for federal statutes …

Vazquez, Carlos Manuel, Choice of Law as Extraterritoriality (January 24, 2020) in Resolving Conflicts in the Law: Essays in Honour of Lea Brilmayer 42 (Chiara Giorgetti and Natalie Klein eds, Boston: Brill Nijhoff 2019).

First posted 2020-03-15 08:27:13