Party Autonomy and the Presumption Against Extraterritoriality
21 Pages Posted: 24 Jan 2019 Last revised: 20 Feb 2020
Date Written: January 21, 2019
What happens when contracting parties attempt to use a choice-of-law clause to bring about the extraterritorial application of statutes that would ordinarily be subject to the presumption against extraterritoriality? Should the choice-of-law clause trump the presumption? Or should the presumption take precedence over the clause?
This symposium Essay aspires to answer these questions. It begins by surveying the ability of parties under existing doctrine to utilize choice-of-law clauses to bring about the extraterritorial application of state statutes. Next, it lays out a framework for thinking through the relationship between the presumption and the principle of party autonomy. It then utilizes this framework to determine how courts should resolve conflicts between the two doctrines in the context of state statutes that are silent or ambiguous as to their geographic scope. The Essay concludes by discussing the implications of this analysis for state common law and for federal statutes.
Keywords: party autonomy; presumption against extraterritoriality; conflict of laws
JEL Classification: K12
Suggested Citation: Suggested Citation