Party Autonomy and the Presumption Against Extraterritoriality

18 Pages Posted: 24 Jan 2019 Last revised: 18 Apr 2019

See all articles by John F. Coyle

John F. Coyle

University of North Carolina School of Law

Date Written: January 21, 2019

Abstract

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 short Essay aspires to provide answers to these difficult 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 principles 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

Coyle, John F., Party Autonomy and the Presumption Against Extraterritoriality (January 21, 2019). Available at SSRN: https://ssrn.com/abstract=3319849 or http://dx.doi.org/10.2139/ssrn.3319849

John F. Coyle (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-843-9634 (Phone)

HOME PAGE: http://www.law.unc.edu/faculty/directory/coylejohnf/

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