Justifying and Challenging Territoriality in Private International Law

Abstract

Private international law essentially deals with the question of how we should regulate relationships and resolve disputes which have connections with more than one legal system, distinguishing between the institutional aspects of regulation (jurisdiction) and the substantive aspects (applicable law). Traditionally, a decision is made about which legal system (or systems) should govern based on a range of connecting factors. Among these factors, territorial connections have historically had the most significant influence, reflecting an approach to private international law which understands the subject as concerned with the division and allocation of state authority and adopts a ‘spatial’ conception of that authority. Private international law theory and practice has also, however, explored a range of alternatives which might be relied on, including the characteristics or wishes of the parties themselves, as well as other approaches which reject altogether the idea that private international law should focus on allocational questions. This chapter asks why territoriality plays such an important role in private international law, and considers whether it should. The chapter begins with an examination of the role of territoriality in private international law history and theory. It then considers various arguments which might be raised to justify territoriality in private international law, suggesting that they may also justify traditional private international law techniques. The chapter also, however, addresses the question of whether these justifications hold up against the challenges presented to territoriality by modern globalisation, in particular, whether territoriality can provide certainty, coherence, and effective regulatory constraint.

Keywords: private international law, conflict of laws, jurisdiction, choice of law, territory, territoriality