International Conflict of Laws and the New Conflicts Restatement

Abstract

This contribution to a symposium on internationalizing the new Conflicts Restatement examines the impact that transnational cases have had on judicial decisions in the United States, and how the resolution of these cases by U.S. courts may be helpful to the drafters of the new Conflicts Restatement. We begin with the observation that recent transnational cases, regardless of whether they are treated separately by the new Conflicts Restatement, offer important insights into the current and evolving conflict-of-laws process in the United States. These cases also offer insight into the ways in which the new Conflicts Restatement’s focus on scope and priority should be developed. Part I explores how the presumption against extraterritoriality relates to the new Conflicts Restatement’s concern with scope and priority. Part II considers whether the new Conflicts Restatement should consider larger, regulatory conflicts in the transnational arena, and, if so, how to deal with them, especially in the context of the priority question. This contribution concludes with some points for further study that should be examined by the new Conflicts Restatement.

Keywords: choice of law, conflict of laws, private international law, Restatement, Comity, Extraterritoriality