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Volumn 35, Issue 2, 1999, Pages 255-310

Reviving the "public law taboo" in international conflict of laws

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EID: 0033275916     PISSN: 07315082     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article
Times cited : (23)

References (124)
  • 1
    • 85081472709 scopus 로고    scopus 로고
    • note
    • This Article, throughout its entirety, will use the phrases "conflicts rules," "conflict of laws principles," "conflicts," "conflicts principles," and "choice of law principles" to refer generally to the comparative interest balancing of various nations' relationships to any given international transaction. This is characteristic of most approaches to contract conflict of laws. See text accompanying note 40 and the last sentence of note 50, infra, for further explanation of this usage. I will be explicit whenever I use any of these phrases in a more refined way. In this Article, the phrases "conflicts principles" and "choice of law principles" include contractual autonomy to select applicable law (often referred to in the literature as "party autonomy") unless otherwise specified. This usage is consistent with the convention in traditional conflicts scholarship of including contractual autonomy to select applicable law as an aspect of conflict of laws.
  • 2
    • 0347842178 scopus 로고
    • Public Law in the International Arena: Conflict of Laws, International Law and Some Suggestions for Their Interaction
    • The phrase "public law taboo" seems to have originated with Professor Lowenfeld. See Andreas F. Lowenfeld, Public Law in the International Arena: Conflict of Laws, International Law and Some Suggestions for Their Interaction, 163 RECUEIL DES COURS 311, 322 (1979) [hereinafter Lowenfeld, Public Law]. It may have been just as accurate to declare a "conflicts taboo" in the realm of public law, but this Article will continue to use Professor Lowenfeld's apt convention.
    • (1979) RECUEIL des COURS , vol.163 , pp. 311
    • Lowenfeld, A.F.1
  • 3
    • 84979115419 scopus 로고
    • "Public" and "Private" Law: Definition Without Distinction
    • Carol Harlow, "Public" and "Private" Law: Definition Without Distinction, 43 MOD. L. REV. 241, 256 (1980).
    • (1980) Mod. L. rev. , vol.43 , pp. 241
    • Harlow, C.1
  • 4
    • 1842790451 scopus 로고
    • Extraterritorial Jurisdiction at a Crossroads: An Intersection between Public and Private International Law
    • See Harold G. Maier, Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law, 76 AM. J. INT'L L. 280, 299 (1982) [hereinafter Maier, Extraterritorial Jurisdiction]; see also Donald T. Trautman, The Role of Conflicts Thinking in Defining the International Reach of American Regulatory Legislation, 22 OHIO ST. L.J. 586, 590-91 (1961).
    • (1982) Am. J. Int'l L. , vol.76 , pp. 280
    • Maier, H.G.1
  • 5
    • 85081474119 scopus 로고    scopus 로고
    • hereinafter
    • See Harold G. Maier, Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law, 76 AM. J. INT'L L. 280, 299 (1982) [hereinafter Maier, Extraterritorial Jurisdiction]; see also Donald T. Trautman, The Role of Conflicts Thinking in Defining the International Reach of American Regulatory Legislation, 22 OHIO ST. L.J. 586, 590-91 (1961).
    • Extraterritorial Jurisdiction
    • Maier1
  • 6
    • 8844222652 scopus 로고
    • The Role of Conflicts Thinking in Defining the International Reach of American Regulatory Legislation
    • See Harold G. Maier, Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law, 76 AM. J. INT'L L. 280, 299 (1982) [hereinafter Maier, Extraterritorial Jurisdiction]; see also Donald T. Trautman, The Role of Conflicts Thinking in Defining the International Reach of American Regulatory Legislation, 22 OHIO ST. L.J. 586, 590-91 (1961).
    • (1961) Ohio St. L.J. , vol.22 , pp. 586
    • Trautman, D.T.1
  • 7
    • 85081461817 scopus 로고    scopus 로고
    • See, e.g., Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979); Timberlane Lumber Co. v. Bank of Am., 549 F.2d 597 (9th Cir. 1976)
    • See, e.g., Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979); Timberlane Lumber Co. v. Bank of Am., 549 F.2d 597 (9th Cir. 1976).
  • 8
    • 85081462744 scopus 로고    scopus 로고
    • RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW §§ 401-03 (1987)
    • RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW §§ 401-03 (1987).
  • 9
    • 85081465649 scopus 로고    scopus 로고
    • note
    • See Richards v. Lloyd's of London, 135 F.3d 1289 (9th Cir. 1998); Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285 (11th Cir. 1998); Haynsworth v. The Corporation, 121 F.3d 956 (5th Cir. 1997); Allen v. Lloyd's of London, 94 F.3d 923 (4th Cir. 1996); Roby v. Corporation of Lloyd's, 996 F.2d 1353 (2d Cir. 1993); Bonny v. Society of Lloyd's, 3 F.3d 156 (7th Cir. 1993); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953 (10th Cir. 1992). The Sixth Circuit relied on identical reasoning to displace state securities law claims in Shell v. R.W. Sturge, Ltd., 55 F.3d 1227 (6th Cir. 1995).
  • 10
    • 85081473695 scopus 로고    scopus 로고
    • note
    • In this respect, it is important to distinguish between the displacement of forum public law and the recognition and enforcement of foreign public law, both of which are aspects of the traditional public law taboo. Whereas the former presents risks of significant underregulation of international commerce, the latter may have pro-regulatory effects. See infra text accompanying notes 151-153.
  • 11
    • 85081472455 scopus 로고    scopus 로고
    • 509 U.S. 764 (1993)
    • 509 U.S. 764 (1993).
  • 12
    • 85081468285 scopus 로고    scopus 로고
    • note
    • The Supreme Court's international arbitration cases, of course, do extend principles of contractual autonomy to the arbitration of public law claims. See Vimar Seguros Y Reaseguros, SA. v. M/V Sky Reefer, 515 U.S. 528 (1995) (regarding the Carriage of Goods by Sea Act); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) (regarding the Sherman Act); Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974) (regarding the Securities Exchange Act of 1934). Yet, none of these cases suggests that applicable U.S. public law may be displaced by contractual election. Because these cases clearly suggest that forum differences often will be accommodated with respect to public law issues, they imply that the Supreme Court might be willing to abandon the public law/private law distinction in the context of permitting U.S. courts to recognize and apply foreign public law even though the Court is not willing to abandon that distinction with respect to the displacement of forum public law. See infra text accompanying notes 130-132 and accompanying text
  • 13
    • 85081460450 scopus 로고    scopus 로고
    • 345 U.S. 571 (1953)
    • 345 U.S. 571 (1953).
  • 14
    • 85081468889 scopus 로고    scopus 로고
    • note
    • 46 U.S.C. app. § 688 (1994). The Jones Act provides that qualified injured seamen may bring personal injury suits (essentially common law tort claims) in federal court.
  • 15
    • 85081467862 scopus 로고    scopus 로고
    • 46 U.S.C. app. §§ 1300-15 (1994)
    • 46 U.S.C. app. §§ 1300-15 (1994).
  • 16
    • 85081468787 scopus 로고    scopus 로고
    • 17 U.S.C. § 1101 (1994)
    • 17 U.S.C. § 1101 (1994).
  • 17
    • 84891123867 scopus 로고
    • The Operation of Foreign Public Law
    • See Hans W. Baade, The Operation of Foreign Public Law, 30 TEX. INT'L L.J. 429, 447, 478 (1995); ANDREAS F. LOWENFELD, INTERNATIONAL LITIGATION AND ARBITRATION 1 (1993) [here-inafter LOWENFELD, INTERNATIONAL LITIGATION] ("Traditionally, in all countries, conflict of laws has been confined to controversies under private law."). This principle is also reflected in the organization of private law by category in most leading conflicts of laws treatises' tables of contents. See EUGENE F. SCOLES & PETER HAY, CONFLICT OF LAWS (2d ed. 1992); RUSSELL J. WEINTRAUB, COMMENTARY ON THE CONFLICT OF LAWS (3d ed. 1986) [hereinafter WEINTRAUB, COMMENTARY].
    • (1995) Tex. Int'l L.J. , vol.30 , pp. 429
    • Baade, H.W.1
  • 18
    • 0040170623 scopus 로고
    • See Hans W. Baade, The Operation of Foreign Public Law, 30 TEX. INT'L L.J. 429, 447, 478 (1995); ANDREAS F. LOWENFELD, INTERNATIONAL LITIGATION AND ARBITRATION 1 (1993) [here-inafter LOWENFELD, INTERNATIONAL LITIGATION] ("Traditionally, in all countries, conflict of laws has been confined to controversies under private law."). This principle is also reflected in the organization of private law by category in most leading conflicts of laws treatises' tables of contents. See EUGENE F. SCOLES & PETER HAY, CONFLICT OF LAWS (2d ed. 1992); RUSSELL J. WEINTRAUB, COMMENTARY ON THE CONFLICT OF LAWS (3d ed. 1986) [hereinafter WEINTRAUB, COMMENTARY].
    • (1993) International Litigation and Arbitration , pp. 1
    • Lowenfeld, A.F.1
  • 19
    • 79959479235 scopus 로고    scopus 로고
    • here-inafter
    • See Hans W. Baade, The Operation of Foreign Public Law, 30 TEX. INT'L L.J. 429, 447, 478 (1995); ANDREAS F. LOWENFELD, INTERNATIONAL LITIGATION AND ARBITRATION 1 (1993) [here-inafter LOWENFELD, INTERNATIONAL LITIGATION] ("Traditionally, in all countries, conflict of laws has been confined to controversies under private law."). This principle is also reflected in the organization of private law by category in most leading conflicts of laws treatises' tables of contents. See EUGENE F. SCOLES & PETER HAY, CONFLICT OF LAWS (2d ed. 1992); RUSSELL J. WEINTRAUB, COMMENTARY ON THE CONFLICT OF LAWS (3d ed. 1986) [hereinafter WEINTRAUB, COMMENTARY].
    • International Litigation
    • Lowenfeld1
  • 20
    • 0040539049 scopus 로고
    • See Hans W. Baade, The Operation of Foreign Public Law, 30 TEX. INT'L L.J. 429, 447, 478 (1995); ANDREAS F. LOWENFELD, INTERNATIONAL LITIGATION AND ARBITRATION 1 (1993) [here-inafter LOWENFELD, INTERNATIONAL LITIGATION] ("Traditionally, in all countries, conflict of laws has been confined to controversies under private law."). This principle is also reflected in the organization of private law by category in most leading conflicts of laws treatises' tables of contents. See EUGENE F. SCOLES & PETER HAY, CONFLICT OF LAWS (2d ed. 1992); RUSSELL J. WEINTRAUB, COMMENTARY ON THE CONFLICT OF LAWS (3d ed. 1986) [hereinafter WEINTRAUB, COMMENTARY].
    • (1992) Conflict of Laws 2d Ed.
    • Scoles, E.F.1    Hay, P.2
  • 21
    • 0007821539 scopus 로고
    • hereinafter WEINTRAUB, COMMENTARY
    • See Hans W. Baade, The Operation of Foreign Public Law, 30 TEX. INT'L L.J. 429, 447, 478 (1995); ANDREAS F. LOWENFELD, INTERNATIONAL LITIGATION AND ARBITRATION 1 (1993) [here-inafter LOWENFELD, INTERNATIONAL LITIGATION] ("Traditionally, in all countries, conflict of laws has been confined to controversies under private law."). This principle is also reflected in the organization of private law by category in most leading conflicts of laws treatises' tables of contents. See EUGENE F. SCOLES & PETER HAY, CONFLICT OF LAWS (2d ed. 1992); RUSSELL J. WEINTRAUB, COMMENTARY ON THE CONFLICT OF LAWS (3d ed. 1986) [hereinafter WEINTRAUB, COMMENTARY].
    • (1986) Commentary on the Conflict of Laws 3d Ed.
    • Weintraub, R.J.1
  • 23
    • 85081466931 scopus 로고    scopus 로고
    • Convention on the Law Applicable to Contractual Obligations, opened for signature June 19, 1980, art. 4 O.J. (L 266) 1 (EEC) [hereinafter CLACO]
    • Convention on the Law Applicable to Contractual Obligations, opened for signature June 19, 1980, art. 4 O.J. (L 266) 1 (EEC) [hereinafter CLACO].
  • 25
    • 84930560341 scopus 로고
    • Rethinking Choice of Law
    • See WEINTRAUB, COMMENTARY, supra note 15, at 397-98; Larry Kramer, Rethinking Choice of Law, 90 COLUM. L. REV. 277, 329-34 (1990).
    • (1990) Colum. L. Rev. , vol.90 , pp. 277
    • Kramer, L.1
  • 26
    • 1842790009 scopus 로고
    • The Internationalization of Contractual Conflicts Law
    • The term "party autonomy," as used to indicate the parties' ability to designate the law that will apply to an international transaction, is something of a "stepchild" in conflicts theory in-sofar as none of the dominant approaches to contractual choice of law even considers party preference as to governing law. Patrick J. Borchers, The Internationalization of Contractual Conflicts Law, 28 VAND. J. TRANSNAT'L L. 421, 436 (1995); Edith Friedler, Party Autonomy Revisited: A Statutory Solution to a Choice-of-Law Problem, 37 U. KAN. L. REV. 471, 472-84 (1989); see also supra notes 15-18 and accompanying text. Nonetheless, party autonomy has been called "[p]erhaps the most widely accepted private international law rule of our time." Russell J. Weintraub, Functional Developments in Choice of Law for Contracts, 187 RECUEIL DES COURS 239, 271 (1984) [hereinafter Weintraub, Functional Developments]. It has been recognized as a doctrine of conflict of laws since the nineteenth century in the United States, the eighteenth century in England, and even centuries earlier on the European Continent. See Ian F. G. Baxter, International Business and Choice of Law, 36 INT'L& COMP. L.Q. 92, 95 (1987); Borchers, supra, at 432; Friedler, supra, at 471; Hessel E. Yntema, "Autonomy" in Choice of Law, 1 AM. J. COMP. L. 341, 348-51 (1952) [hereinafter Yntema, "Autonomy"]. The states or nations whose laws parties may contractually designate as governing sometimes are limited to those with a "reasonable relation" to the parties or their transaction. U.C.C. § 1-105(1) (1997), 1 U.L.A. 29 (1989). More often, however, party choice is unrestricted in this regard. See, e.g., Borchers, supra, at 433.
    • (1995) Vand. J. Transnat'l L. , vol.28 , pp. 421
    • Borchers, P.J.1
  • 27
    • 8844258700 scopus 로고
    • Party Autonomy Revisited: A Statutory Solution to a Choice-of-Law Problem
    • The term "party autonomy," as used to indicate the parties' ability to designate the law that will apply to an international transaction, is something of a "stepchild" in conflicts theory in-sofar as none of the dominant approaches to contractual choice of law even considers party preference as to governing law. Patrick J. Borchers, The Internationalization of Contractual Conflicts Law, 28 VAND. J. TRANSNAT'L L. 421, 436 (1995); Edith Friedler, Party Autonomy Revisited: A Statutory Solution to a Choice-of-Law Problem, 37 U. KAN. L. REV. 471, 472-84 (1989); see also supra notes 15-18 and accompanying text. Nonetheless, party autonomy has been called "[p]erhaps the most widely accepted private international law rule of our time." Russell J. Weintraub, Functional Developments in Choice of Law for Contracts, 187 RECUEIL DES COURS 239, 271 (1984) [hereinafter Weintraub, Functional Developments]. It has been recognized as a doctrine of conflict of laws since the nineteenth century in the United States, the eighteenth century in England, and even centuries earlier on the European Continent. See Ian F. G. Baxter, International Business and Choice of Law, 36 INT'L& COMP. L.Q. 92, 95 (1987); Borchers, supra, at 432; Friedler, supra, at 471; Hessel E. Yntema, "Autonomy" in Choice of Law, 1 AM. J. COMP. L. 341, 348-51 (1952) [hereinafter Yntema, "Autonomy"]. The states or nations whose laws parties may contractually designate as governing sometimes are limited to those with a "reasonable relation" to the parties or their transaction. U.C.C. § 1-105(1) (1997), 1 U.L.A. 29 (1989). More often, however, party choice is unrestricted in this regard. See, e.g., Borchers, supra, at 433.
    • (1989) U. Kan. L. Rev. , vol.37 , pp. 471
    • Friedler, E.1
  • 28
    • 77749265766 scopus 로고
    • Functional Developments in Choice of Law for Contracts
    • The term "party autonomy," as used to indicate the parties' ability to designate the law that will apply to an international transaction, is something of a "stepchild" in conflicts theory in-sofar as none of the dominant approaches to contractual choice of law even considers party preference as to governing law. Patrick J. Borchers, The Internationalization of Contractual Conflicts Law, 28 VAND. J. TRANSNAT'L L. 421, 436 (1995); Edith Friedler, Party Autonomy Revisited: A Statutory Solution to a Choice-of-Law Problem, 37 U. KAN. L. REV. 471, 472-84 (1989); see also supra notes 15-18 and accompanying text. Nonetheless, party autonomy has been called "[p]erhaps the most widely accepted private international law rule of our time." Russell J. Weintraub, Functional Developments in Choice of Law for Contracts, 187 RECUEIL DES COURS 239, 271 (1984) [hereinafter Weintraub, Functional Developments]. It has been recognized as a doctrine of conflict of laws since the nineteenth century in the United States, the eighteenth century in England, and even centuries earlier on the European Continent. See Ian F. G. Baxter, International Business and Choice of Law, 36 INT'L& COMP. L.Q. 92, 95 (1987); Borchers, supra, at 432; Friedler, supra, at 471; Hessel E. Yntema, "Autonomy" in Choice of Law, 1 AM. J. COMP. L. 341, 348-51 (1952) [hereinafter Yntema, "Autonomy"]. The states or nations whose laws parties may contractually designate as governing sometimes are limited to those with a "reasonable relation" to the parties or their transaction. U.C.C. § 1-105(1) (1997), 1 U.L.A. 29 (1989). More often, however, party choice is unrestricted in this regard. See, e.g., Borchers, supra, at 433.
    • (1984) Recueil des Cours , vol.187 , pp. 239
    • Weintraub, R.J.1
  • 29
    • 85081465533 scopus 로고    scopus 로고
    • The term "party autonomy," as used to indicate the parties' ability to designate the law that will apply to an international transaction, is something of a "stepchild" in conflicts theory in-sofar as none of the dominant approaches to contractual choice of law even considers party preference as to governing law. Patrick J. Borchers, The Internationalization of Contractual Conflicts Law, 28 VAND. J. TRANSNAT'L L. 421, 436 (1995); Edith Friedler, Party Autonomy Revisited: A Statutory Solution to a Choice-of-Law Problem, 37 U. KAN. L. REV. 471, 472-84 (1989); see also supra notes 15-18 and accompanying text. Nonetheless, party autonomy has been called "[p]erhaps the most widely accepted private international law rule of our time." Russell J. Weintraub, Functional Developments in Choice of Law for Contracts, 187 RECUEIL DES COURS 239, 271 (1984) [hereinafter Weintraub, Functional Developments]. It has been recognized as a doctrine of conflict of laws since the nineteenth century in the United States, the eighteenth century in England, and even centuries earlier on the European Continent. See Ian F. G. Baxter, International Business and Choice of Law, 36 INT'L& COMP. L.Q. 92, 95 (1987); Borchers, supra, at 432; Friedler, supra, at 471; Hessel E. Yntema, "Autonomy" in Choice of Law, 1 AM. J. COMP. L. 341, 348-51 (1952) [hereinafter Yntema, "Autonomy"]. The states or nations whose laws parties may contractually designate as governing sometimes are limited to those with a "reasonable relation" to the parties or their transaction. U.C.C. § 1-105(1) (1997), 1 U.L.A. 29 (1989). More often, however, party choice is unrestricted in this regard. See, e.g., Borchers, supra, at 433.
    • Functional Developments
    • Weintraub1
  • 30
    • 84974022121 scopus 로고
    • International Business and Choice of Law
    • The term "party autonomy," as used to indicate the parties' ability to designate the law that will apply to an international transaction, is something of a "stepchild" in conflicts theory in-sofar as none of the dominant approaches to contractual choice of law even considers party preference as to governing law. Patrick J. Borchers, The Internationalization of Contractual Conflicts Law, 28 VAND. J. TRANSNAT'L L. 421, 436 (1995); Edith Friedler, Party Autonomy Revisited: A Statutory Solution to a Choice-of-Law Problem, 37 U. KAN. L. REV. 471, 472-84 (1989); see also supra notes 15-18 and accompanying text. Nonetheless, party autonomy has been called "[p]erhaps the most widely accepted private international law rule of our time." Russell J. Weintraub, Functional Developments in Choice of Law for Contracts, 187 RECUEIL DES COURS 239, 271 (1984) [hereinafter Weintraub, Functional Developments]. It has been recognized as a doctrine of conflict of laws since the nineteenth century in the United States, the eighteenth century in England, and even centuries earlier on the European Continent. See Ian F. G. Baxter, International Business and Choice of Law, 36 INT'L& COMP. L.Q. 92, 95 (1987); Borchers, supra, at 432; Friedler, supra, at 471; Hessel E. Yntema, "Autonomy" in Choice of Law, 1 AM. J. COMP. L. 341, 348-51 (1952) [hereinafter Yntema, "Autonomy"]. The states or nations whose laws parties may contractually designate as governing sometimes are limited to those with a "reasonable relation" to the parties or their transaction. U.C.C. § 1-105(1) (1997), 1 U.L.A. 29 (1989). More often, however, party choice is unrestricted in this regard. See, e.g., Borchers, supra, at 433.
    • (1987) Int'l& Comp. L.Q. , vol.36 , pp. 92
    • Baxter, I.F.G.1
  • 31
    • 8844248547 scopus 로고
    • "Autonomy" in Choice of Law
    • The term "party autonomy," as used to indicate the parties' ability to designate the law that will apply to an international transaction, is something of a "stepchild" in conflicts theory in-sofar as none of the dominant approaches to contractual choice of law even considers party preference as to governing law. Patrick J. Borchers, The Internationalization of Contractual Conflicts Law, 28 VAND. J. TRANSNAT'L L. 421, 436 (1995); Edith Friedler, Party Autonomy Revisited: A Statutory Solution to a Choice-of-Law Problem, 37 U. KAN. L. REV. 471, 472-84 (1989); see also supra notes 15-18 and accompanying text. Nonetheless, party autonomy has been called "[p]erhaps the most widely accepted private international law rule of our time." Russell J. Weintraub, Functional Developments in Choice of Law for Contracts, 187 RECUEIL DES COURS 239, 271 (1984) [hereinafter Weintraub, Functional Developments]. It has been recognized as a doctrine of conflict of laws since the nineteenth century in the United States, the eighteenth century in England, and even centuries earlier on the European Continent. See Ian F. G. Baxter, International Business and Choice of Law, 36 INT'L& COMP. L.Q. 92, 95 (1987); Borchers, supra, at 432; Friedler, supra, at 471; Hessel E. Yntema, "Autonomy" in Choice of Law, 1 AM. J. COMP. L. 341, 348-51 (1952) [hereinafter Yntema, "Autonomy"]. The states or nations whose laws parties may contractually designate as governing sometimes are limited to those with a "reasonable relation" to the parties or their transaction. U.C.C. § 1-105(1) (1997), 1 U.L.A. 29 (1989). More often, however, party choice is unrestricted in this regard. See, e.g., Borchers, supra, at 433.
    • (1952) Am. J. Comp. L. , vol.1 , pp. 341
    • Yntema, H.E.1
  • 32
    • 85081462640 scopus 로고    scopus 로고
    • The term "party autonomy," as used to indicate the parties' ability to designate the law that will apply to an international transaction, is something of a "stepchild" in conflicts theory in-sofar as none of the dominant approaches to contractual choice of law even considers party preference as to governing law. Patrick J. Borchers, The Internationalization of Contractual Conflicts Law, 28 VAND. J. TRANSNAT'L L. 421, 436 (1995); Edith Friedler, Party Autonomy Revisited: A Statutory Solution to a Choice-of-Law Problem, 37 U. KAN. L. REV. 471, 472-84 (1989); see also supra notes 15-18 and accompanying text. Nonetheless, party autonomy has been called "[p]erhaps the most widely accepted private international law rule of our time." Russell J. Weintraub, Functional Developments in Choice of Law for Contracts, 187 RECUEIL DES COURS 239, 271 (1984) [hereinafter Weintraub, Functional Developments]. It has been recognized as a doctrine of conflict of laws since the nineteenth century in the United States, the eighteenth century in England, and even centuries earlier on the European Continent. See Ian F. G. Baxter, International Business and Choice of Law, 36 INT'L& COMP. L.Q. 92, 95 (1987); Borchers, supra, at 432; Friedler, supra, at 471; Hessel E. Yntema, "Autonomy" in Choice of Law, 1 AM. J. COMP. L. 341, 348-51 (1952) [hereinafter Yntema, "Autonomy"]. The states or nations whose laws parties may contractually designate as governing sometimes are limited to those with a "reasonable relation" to the parties or their transaction. U.C.C. § 1-105(1) (1997), 1 U.L.A. 29 (1989). More often, however, party choice is unrestricted in this regard. See, e.g., Borchers, supra, at 433.
    • Autonomy
    • Yntema1
  • 33
    • 85081467929 scopus 로고    scopus 로고
    • note
    • See SCOLES & HAY, supra note 15, at 658-734 (summarizing approaches to contracts choice of law); WEINTRAUB, COMMENTARY, supra note 15, at 362-411 (summarizing approaches to contracts choice of law).
  • 34
    • 85081470647 scopus 로고    scopus 로고
    • note
    • See, e.g., U.C.C. § 1-105(1) (1997), 1 U.LA. 29 (1989) ("Except as provided hereafter in this section, when a transaction bears a reasonable relation to this state and also to another state or nation the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties."); U.N. Conference on Contracts for the International Sale of Goods art. 6, U.N. Doc. A/Conf. 97/18 (1980), 52 Fed. Reg. 6264 (1987), 19 I.L.M. 668 (1980) [hereinafter CISG] ("The parties may exclude the application of this Convention or, subject to [the article concerning a writing], derogate from or vary the effect of any of its provisions."). Section 187 of the RESTATEMENT (SECOND) OF CONFLIGT OF LAWS, concerning the "Law of the State Chosen by the Parties," is also silent about the public law boundaries that traditionally have confined its provisions. It does, however, suggest that a "fundamental policy" of a state with a "materially greater interest" in the particular issue than the chosen state might negate the parties' choice. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS §187(2) (b) (1971). See also infra note 32 and accompanying text.
  • 35
    • 85081474481 scopus 로고    scopus 로고
    • note
    • See Holman v. Johnson, 1 Cowp. 341, 343 (1775) (Mansfield, J.) ("[N]o country ever takes notice of the revenue laws of another."); RESTATEMENT (FIRST) OF CONFLICT OF LAWS § 610 (1934) ("No action can be maintained on a right created by the law of a foreign state as a method of furthering its own governmental interests."); A. V. DICEY & J.H.C. MORRIS, THE CONTLICT OF LAWS 75 (J.H.C. Morris ed., 9th ed. 1973) (noting that courts "ha[ve] no jurisdiction to entertain an action . . . for the enforcement . . . of a penal, revenue, or other public law of a foreign State"); LOWENFELD, INTERNATIONAL LITIGATION, supra note 15, at 1 ("If . . . a controversy before the court concerns a . . . public law, the thought that State A might apply the law of State B seems to be out of the question. In such cases, the forum either applies its own law, or if there is no basis for doing that, dismisses the action."); see also, e.g., Roby v. Corp. of Lloyd's, 996 F.2d 1353, 1362 (2d Cir. 1993) ("[N] either an English court nor an English arbitrator would apply the United States securities laws, because English conflict of law rules do not permit recognition of foreign tort or statutory law.").
  • 36
    • 85081464875 scopus 로고    scopus 로고
    • supra note 4, at 290
    • Judge Learned Hand once hypothesized that the rationale for this aspect of the public law taboo was a dual concern about the impropriety of scrutinizing another sovereign's law and the impropriety of a court enforcing a law it hasn't scrutinized. See Moore v. Mitchell, 30 F.2d 600, 604 (2d Cir. 1929); see also Maier, Extralerritorial Jurisdiction, supra note 4, at 290.
    • Extralerritorial Jurisdiction
    • Maier1
  • 37
    • 0346543678 scopus 로고    scopus 로고
    • Extraterritoriality and Conflict-of-Laws Theory: An Argument for Judicial Unilateralism
    • See LOWENFELD, INTERNATIONAL LITIGATION, supra note 15, at 1; William S. Dodge, Extraterritoriality and Conflict-of-Laws Theory: An Argument for Judicial Unilateralism, 39 HARV. INT'L L. J. 101, 109 (1998) (noting that, "A U.S. court will apply foreign tort or contract law to decide a case before it, but it will not apply foreign regulatory law like antitrust law. If foreign law is deemed to govern in an antitrust case, the court will simply dismiss . . . "). Recently, however, that aspect of the public law taboo concerning the enforcement of foreign public law has begun to erode. See infra Part III.D; see also supra note 10 and accompanying text.
    • (1998) Harv. Int'l L. J. , vol.39 , pp. 101
    • Dodge, W.S.1
  • 38
    • 8844283301 scopus 로고
    • Public Policy and the Autonomy of the Parties: Interrelations between Imperative Legislation and the Doctrine of Party Autonomy
    • Hessel E. Yntema reprint ed.
    • Henri Batiffol, Public Policy and the Autonomy of the Parties: Interrelations between Imperative Legislation and the Doctrine of Party Autonomy, in LECTURES ON THE CONFLICTS OF LAW AND INTERNATIONAL CONTRACTS 68, 79 (Hessel E. Yntema reprint ed., 1982) (quoting ERNST RABEL, 2 THE CONFLICT OF LAWS: A COMPARATIVE STUDY (1947)). See also Compania de Inversiones Internationales v. Industrial Mortgage Bank of Finland, 198 N.E. 617, 621 (1935), cert, denied, 297 U.S. 705 (1936) ("The joint resolution [of Congress] has thus revealed clearly the intention of the Congress to regulate the kind and amount of the currency wherewith the obligation may be discharged . . . . The parties to a contract may not by their intention, however expressed, override the [public] laws of the country in which suit is brought . . . . ").
    • (1982) Lectures on the Conflicts of Law and International Contracts , pp. 68
    • Batiffol, H.1
  • 39
    • 85081462776 scopus 로고
    • Henri Batiffol, Public Policy and the Autonomy of the Parties: Interrelations between Imperative Legislation and the Doctrine of Party Autonomy, in LECTURES ON THE CONFLICTS OF LAW AND INTERNATIONAL CONTRACTS 68, 79 (Hessel E. Yntema reprint ed., 1982) (quoting ERNST RABEL, 2 THE CONFLICT OF LAWS: A COMPARATIVE STUDY (1947)). See also Compania de Inversiones Internationales v. Industrial Mortgage Bank of Finland, 198 N.E. 617, 621 (1935), cert, denied, 297 U.S. 705 (1936) ("The joint resolution [of Congress] has thus revealed clearly the intention of the Congress to regulate the kind and amount of the currency wherewith the obligation may be discharged . . . . The parties to a contract may not by their intention, however expressed, override the [public] laws of the country in which suit is brought . . . . ").
    • (1947) The Conflict of Laws: a Comparative Study , vol.2
    • Rabel, E.1
  • 40
    • 85081465533 scopus 로고    scopus 로고
    • Yntema, "Autonomy,"supra note 20, at 343. See also, e.g., Knott v. Botany Mills, 179 U.S. 69, 71 (1900) (nullifying a contractual choice of law clause that, if given effect, would have displaced mandatory provisions of the U.S. Harter Act of 1893 (codified as amended at 46 U.S.C. §§ 190-96 (1994))). This same rule should apply as well to forum selection and arbitration clauses: a nonselected forum should not dismiss an action subject to such a clause if to do so would result in the displacement of mandatory forum public law. See, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S. 614, 637 n.19 (1985) (noting that the Court "would have little hesitation in condemning" a contract in which "the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party's right to pursue statutory remedies"); Akai Party Ltd. v. The People's Ins. Co. Ltd., (1996) 71 A.L.R. 156 (Austl.) (refusing to enforce choice-of-forum and choice-of-law clauses in an insurance contract designating an English forum and English law when enforcement of choice clauses would displace the Australian Insurance Contracts Act of 1984); The Hollandia, [1983] App. Cas. 565, 574-75 (H.L. 1982) (appeal taken from Eng.) (refusing enforcement of a choice-of-forum clause that would have displaced the applicable English Carriage of Goods by Sea Act (1971)); Weintraub, Functional Development, supra note 20, at 296 ("If a forum's mandatory rule . . . would not yield to a clause choosing the law of another country, then it is inconsistent to permit forum law to be evaded by a clause requiring litigation in a court that would not apply the forum's mandatory rule.").
    • Functional Development
    • Weintraub1
  • 41
    • 0001901416 scopus 로고
    • The New Lex Mercatoria and the Harmonization of the Laws of International Commercial Transactions
    • See, e.g., Batiffol, supra note 26, at 79; Bernardo M. Cremades & Steven L. Plehn, The New Lex Mercatoria and the Harmonization of the Laws of International Commercial Transactions, 2 B.U. INT'L L.J. 317, 325 n.37 (1984) ("Contractual freedom and . . . mandatory national laws are different sides of the same coin; one begins where the other one ends."); Joel R. Paul, Comity in International Law, 32 HARV. INT'L L.J. 1, 28 (1991) (noting that European courts use "the principles of loi de police or ordre public to supersede other conflict-of-laws rules and impose domestic law without regard for the public policy of the foreign sovereign"); Hans Smit, The Future of International Commercial Arbitration: A Single Transnational Institution?, 25 COLUM. J. TRANSNAT'L L. 9, 23 (1986) ("[T] he autonomy of parties in choosing the applicable law is not absolute; for example, the parties may not . . . evade mandatory rules of law that would otherwise be applicable."); Michael Whincop & Mary Keyes, Putting the 'Private' Back Into Private International Law: Default Rules and the Proper Law of the Contract, 21 MELB. U. L. REV. 515, 521 (1997) (noting that, "[s]ubject to normal questions of statutory interpretation . . . courts will apply mandatory legislative provisions of the forum notwithstanding the choice of another legal system as the proper law of the contract"); Yntema, "Autonomy, " supra note 20, at 343.
    • (1984) B.U. Int'l L.J. , vol.2 , Issue.37 , pp. 317
    • Cremades, B.M.1    Plehn, S.L.2
  • 42
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    • Comity in International Law
    • See, e.g., Batiffol, supra note 26, at 79; Bernardo M. Cremades & Steven L. Plehn, The New Lex Mercatoria and the Harmonization of the Laws of International Commercial Transactions, 2 B.U. INT'L L.J. 317, 325 n.37 (1984) ("Contractual freedom and . . . mandatory national laws are different sides of the same coin; one begins where the other one ends."); Joel R. Paul, Comity in International Law, 32 HARV. INT'L L.J. 1, 28 (1991) (noting that European courts use "the principles of loi de police or ordre public to supersede other conflict-of-laws rules and impose domestic law without regard for the public policy of the foreign sovereign"); Hans Smit, The Future of International Commercial Arbitration: A Single Transnational Institution?, 25 COLUM. J. TRANSNAT'L L. 9, 23 (1986) ("[T] he autonomy of parties in choosing the applicable law is not absolute; for example, the parties may not . . . evade mandatory rules of law that would otherwise be applicable."); Michael Whincop & Mary Keyes, Putting the 'Private' Back Into Private International Law: Default Rules and the Proper Law of the Contract, 21 MELB. U. L. REV. 515, 521 (1997) (noting that, "[s]ubject to normal questions of statutory interpretation . . . courts will apply mandatory legislative provisions of the forum notwithstanding the choice of another legal system as the proper law of the contract"); Yntema, "Autonomy, " supra note 20, at 343.
    • (1991) Harv. Int'l L.J. , vol.32 , pp. 1
    • Paul, J.R.1
  • 43
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    • The Future of International Commercial Arbitration: A Single Transnational Institution?
    • See, e.g., Batiffol, supra note 26, at 79; Bernardo M. Cremades & Steven L. Plehn, The New Lex Mercatoria and the Harmonization of the Laws of International Commercial Transactions, 2 B.U. INT'L L.J. 317, 325 n.37 (1984) ("Contractual freedom and . . . mandatory national laws are different sides of the same coin; one begins where the other one ends."); Joel R. Paul, Comity in International Law, 32 HARV. INT'L L.J. 1, 28 (1991) (noting that European courts use "the principles of loi de police or ordre public to supersede other conflict-of-laws rules and impose domestic law without regard for the public policy of the foreign sovereign"); Hans Smit, The Future of International Commercial Arbitration: A Single Transnational Institution?, 25 COLUM. J. TRANSNAT'L L. 9, 23 (1986) ("[T] he autonomy of parties in choosing the applicable law is not absolute; for example, the parties may not . . . evade mandatory rules of law that would otherwise be applicable."); Michael Whincop & Mary Keyes, Putting the 'Private' Back Into Private International Law: Default Rules and the Proper Law of the Contract, 21 MELB. U. L. REV. 515, 521 (1997) (noting that, "[s]ubject to normal questions of statutory interpretation . . . courts will apply mandatory legislative provisions of the forum notwithstanding the choice of another legal system as the proper law of the contract"); Yntema, "Autonomy, " supra note 20, at 343.
    • (1986) Colum. J. Transnat'l L. , vol.25 , pp. 9
    • Smit, H.1
  • 44
    • 8844265195 scopus 로고    scopus 로고
    • Putting the 'Private' Back into Private International Law: Default Rules and the Proper Law of the Contract
    • See, e.g., Batiffol, supra note 26, at 79; Bernardo M. Cremades & Steven L. Plehn, The New Lex Mercatoria and the Harmonization of the Laws of International Commercial Transactions, 2 B.U. INT'L L.J. 317, 325 n.37 (1984) ("Contractual freedom and . . . mandatory national laws are different sides of the same coin; one begins where the other one ends."); Joel R. Paul, Comity in International Law, 32 HARV. INT'L L.J. 1, 28 (1991) (noting that European courts use "the principles of loi de police or ordre public to supersede other conflict-of-laws rules and impose domestic law without regard for the public policy of the foreign sovereign"); Hans Smit, The Future of International Commercial Arbitration: A Single Transnational Institution?, 25 COLUM. J. TRANSNAT'L L. 9, 23 (1986) ("[T] he autonomy of parties in choosing the applicable law is not absolute; for example, the parties may not . . . evade mandatory rules of law that would otherwise be applicable."); Michael Whincop & Mary Keyes, Putting the 'Private' Back Into Private International Law: Default Rules and the Proper Law of the Contract, 21 MELB. U. L. REV. 515, 521 (1997) (noting that, "[s]ubject to normal questions of statutory interpretation . . . courts will apply mandatory legislative provisions of the forum notwithstanding the choice of another legal system as the proper law of the contract"); Yntema, "Autonomy, " supra note 20, at 343.
    • (1997) Melb. U. L. Rev. , vol.21 , pp. 515
    • Whincop, M.1    Keyes, M.2
  • 45
    • 8844264436 scopus 로고
    • O.J. (c 282)
    • Article 7(2) of the Convention, which limits both party autonomy to choose applicable law as stipulated in article 3(1) and the choice of law rules that apply in the absence of party choice as promulgated in article 4, provides that, "[n]othing in this Convention shall restrict the application of the rules of law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the contract" CLACO, supra note 17, arts. 3(1), 4, 7(2). The official report on the Convention notes that, "The origin of [article 7(2)] is found in the concern of certain delegations to safeguard the rules of the law of the forum (notably rules on cartels, competition and restrictive practices, consumer protection and certain rules concerning carriage) which are mandatory in the situation whatever the law applicable to the contract may be." See Mario Giuliano & Paul Lagarde, Report on the Convention on the Law Applicable to Contractual Obligations, 1980 O.J. (c 282) 1, 28.
    • (1980) Report on the Convention on the Law Applicable to Contractual Obligations , pp. 1
    • Giuliano, M.1    Lagarde, P.2
  • 46
    • 85081471539 scopus 로고    scopus 로고
    • note
    • Loucks v. Standard Oil Co., 224 N.Y. 99, 111 (1918) (concerning a conflict between the New York and Massachusetts approaches to the doctrine of respondeat superior).
  • 47
    • 85081463802 scopus 로고    scopus 로고
    • CLACO, supra note 17, art. 16
    • CLACO, supra note 17, art. 16.
  • 48
    • 8844267562 scopus 로고
    • Effectiveness of Choice-of-Law Clauses in Contract Conflicts of Law: Party Autonomy or Objective Determination?
    • Note
    • See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 187(2) (b) (1971) (noting that party designated law need not be applied if "contrary to a fundamental policy of a state which has a materially greater interest . . . and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties"). Unlike the traditional "public policy" exception, section 187 of the SECOND RESTATEMENT obviously contemplates that the public policy of the state whose law would have applied in the absence of the party designation also may limit the application of party designated law, regardless of the forum state. Also, unlike the traditional formulation, this section of the RESTATEMENT speaks of a "fundamental policy" exception rather than a "public policy" exception. There has been some scholarly discussion about whether or not those two concepts are identical in practice. See, e.g., Friedler, supra note 20, at 491-92, 512-13; Richard J. Bauerfield, Note, Effectiveness of Choice-of-Law Clauses in Contract Conflicts of Law: Party Autonomy or Objective Determination?, 82 COLUM. L. REV. 1659, 1675 n.106 (1982) [hereinafter Bauerfield, Note, Effectiveness of Choice-of-Law Clauses]. The public policy exception is not explicit in section 188 of the SECOND RESTATEMENT, which establishes a "most significant relationship" standard for determining the law applicable to a transaction in the absence of an effective choice by the parties. The traditional universality of the public policy exception implicitly would seem to modify section 188, however, at least when the law having the "most significant relationship to the transaction and the parties" is not also the law of the forum. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 188 (1971). Section 6 of the SECOND RESTATEMENT arguably imposes the exception explicitly by requiring the forum court to "follow a statutory directive of its own state on choice of law," or to consider "the relevant policies of the forum" if there is none. Id. § 6.
    • (1982) Colum. L. Rev. , vol.82 , Issue.106 , pp. 1659
    • Bauerfield, R.J.1
  • 49
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    • "Public Policy" in the Conflict of Laws
    • See Monrad G. Paulsen & Michael I. Severn, "Public Policy" in the Conflict of Laws, 56 COLUM. L. REV. 969, 987 (1956) (noting that public policy easily can "serve as a substitute for thinking"); Borchers, supra note 20, app. B at 462 (attaching a letter from Professor Larry Kramer asserting that "judges frequently and easily use [the SECOND RESTATEMENT's fundamental policy exception] to avoid the parties' choice"); David Clifford Burger, Note, Transnational Public Policy as a Factor in Choice of Law Analysis, 5 N.Y.L. SCH. J. INT'L & COMP. L. 367, 369 (1984) [hereinafter Burger, Transnational Public Policy] (noting "[t]he failure of the current conception of public policy to provide a structured, analytical framework for choice of law purposes"); Bauerfield, Note, Effectiveness of Choice-of-Law Clauses, supra note 32, at 1675 (noting that a review of the case law had revealed that "courts too readily invoke the [public policy] exception in lieu of careful analysis").
    • (1956) Colum. L. Rev. , vol.56 , pp. 969
    • Paulsen, M.G.1    Severn, M.I.2
  • 50
    • 8844251308 scopus 로고
    • Transnational Public Policy as a Factor in Choice of Law Analysis
    • Note
    • See Monrad G. Paulsen & Michael I. Severn, "Public Policy" in the Conflict of Laws, 56 COLUM. L. REV. 969, 987 (1956) (noting that public policy easily can "serve as a substitute for thinking"); Borchers, supra note 20, app. B at 462 (attaching a letter from Professor Larry Kramer asserting that "judges frequently and easily use [the SECOND RESTATEMENT's fundamental policy exception] to avoid the parties' choice"); David Clifford Burger, Note, Transnational Public Policy as a Factor in Choice of Law Analysis, 5 N.Y.L. SCH. J. INT'L & COMP. L. 367, 369 (1984) [hereinafter Burger, Transnational Public Policy] (noting "[t]he failure of the current conception of public policy to provide a structured, analytical framework for choice of law purposes"); Bauerfield, Note, Effectiveness of Choice-of-Law Clauses, supra note 32, at 1675 (noting that a review of the case law had revealed that "courts too readily invoke the [public policy] exception in lieu of careful analysis").
    • (1984) N.Y.L. SCH. J. Int'l & Comp. L. , vol.5 , pp. 367
    • Burger, D.C.1
  • 51
    • 85081468287 scopus 로고    scopus 로고
    • See Monrad G. Paulsen & Michael I. Severn, "Public Policy" in the Conflict of Laws, 56 COLUM. L. REV. 969, 987 (1956) (noting that public policy easily can "serve as a substitute for thinking"); Borchers, supra note 20, app. B at 462 (attaching a letter from Professor Larry Kramer asserting that "judges frequently and easily use [the SECOND RESTATEMENT's fundamental policy exception] to avoid the parties' choice"); David Clifford Burger, Note, Transnational Public Policy as a Factor in Choice of Law Analysis, 5 N.Y.L. SCH. J. INT'L & COMP. L. 367, 369 (1984) [hereinafter Burger, Transnational Public Policy] (noting "[t]he failure of the current conception of public policy to provide a structured, analytical framework for choice of law purposes"); Bauerfield, Note, Effectiveness of Choice-of-Law Clauses, supra note 32, at 1675 (noting that a review of the case law had revealed that "courts too readily invoke the [public policy] exception in lieu of careful analysis").
    • Transnational Public Policy
    • Burger1
  • 52
    • 8844286755 scopus 로고    scopus 로고
    • Note
    • See Monrad G. Paulsen & Michael I. Severn, "Public Policy" in the Conflict of Laws, 56 COLUM. L. REV. 969, 987 (1956) (noting that public policy easily can "serve as a substitute for thinking"); Borchers, supra note 20, app. B at 462 (attaching a letter from Professor Larry Kramer asserting that "judges frequently and easily use [the SECOND RESTATEMENT's fundamental policy exception] to avoid the parties' choice"); David Clifford Burger, Note, Transnational Public Policy as a Factor in Choice of Law Analysis, 5 N.Y.L. SCH. J. INT'L & COMP. L. 367, 369 (1984) [hereinafter Burger, Transnational Public Policy] (noting "[t]he failure of the current conception of public policy to provide a structured, analytical framework for choice of law purposes"); Bauerfield, Note, Effectiveness of Choice-of-Law Clauses, supra note 32, at 1675 (noting that a review of the case law had revealed that "courts too readily invoke the [public policy] exception in lieu of careful analysis").
    • Effectiveness of Choice-of-Law Clauses
    • Bauerfield1
  • 53
    • 85081468287 scopus 로고    scopus 로고
    • supra note 33, at 377
    • One commenator has noted: Employing [the principle of public policy], a court would first be directed to apply foreign law under ordinary choice of law analysis. After an examination of the foreign law, however, the court [might] find the foreign law or its effect at odds with fundamental principles of the forum, and thus reject application of the offensive foreign law.". Burger, Transnational Public Policy, supra note 33, at 377.
    • Transnational Public Policy
    • Burger1
  • 54
    • 0344408032 scopus 로고
    • § 203
    • The outcomes of these and similar issues vary. See, e.g., Woods-Tucker Leasing Corp. v. Hutcheson-Ingram Dev. Co., 642 F.2d 744, 750-51 (5th Cir. 1981) (regarding usury issues and conflicts analysis); RESTATEMENT (SECOND) CONFLICT OF LAWS § 203 (1971) (suggesting a rule of validation for usury issues if "not greatly in excess" of the rate permitted by the "state of the otherwise applicable law"); Bauerfield, Note, Effectiveness of Choice-of-Law Clauses, supra note 32, at 1672-73. Questions of public policy most often arise when the issue of applicable law affects con-tract validity as opposed to simply its construction or interpretation. See, e.g., WEINTRAUB, COMMENTARY, supra note 15, at 362-63; Weintraub, Functional Developments, supra note 20, at 252-54, 272. See also infra Part VI.B, with emphasis on text accompanying notes 236-238 (discussing why the typically mandatory private laws mentioned in the above text remain within the scope of conflicts analysis, while mandatory public laws such as antitrust and securities fall outside its scope).
    • (1971) Restatement (Second) Conflict of Laws
  • 55
    • 85081464588 scopus 로고    scopus 로고
    • note
    • This proposition is illustrated by the fact that the European Community's Convention on the Law Applicable to Contractual Obligations deals with the public law taboo and the public policy exception in separate articles. See CLACO, supra note 17, arts. 7, 16.
  • 56
    • 85081470617 scopus 로고    scopus 로고
    • See Richards v. Lloyd's of London, 135 F.3d 1289 (9th Cir. 1998); Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285 (11th Cir. 1998); Haynsworth v. The Corporation, 121 F.3d 956 (5th Cir. 1997); Allen v. Lloyd's of London, 94 F.3d 923 (4th Cir. 1996); Roby v. Corp. of Lloyd's, 996 F.2d 1353 (2d Cir. 1993); Bonny v. Society of Lloyd's, 3 F.3d 156 (7th Cir. 1993); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953 (10th Cir. 1992)
    • See Richards v. Lloyd's of London, 135 F.3d 1289 (9th Cir. 1998); Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285 (11th Cir. 1998); Haynsworth v. The Corporation, 121 F.3d 956 (5th Cir. 1997); Allen v. Lloyd's of London, 94 F.3d 923 (4th Cir. 1996); Roby v. Corp. of Lloyd's, 996 F.2d 1353 (2d Cir. 1993); Bonny v. Society of Lloyd's, 3 F.3d 156 (7th Cir. 1993); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953 (10th Cir. 1992).
  • 57
    • 8844230930 scopus 로고
    • See O. KAHN-FREUND, GENERAL PROBLEMS OF PRIVATE INTERNATIONAL LAW 149 (1976) ("We know that no country applies a foreign rule if the result of doing so would be at variance with its fundamental principles and policies."); Paul, supra note 28, at 34-35 ("Civil-law courts have liberally applied public policy exceptions . . . to block the operation of offending foreign laws.").
    • (1976) General Problems of Private International Law , pp. 149
    • Kahn-Freund, O.1
  • 58
    • 85081469764 scopus 로고    scopus 로고
    • note
    • Baade, supra note 15, at 453 (emphasis added). As Professor Baade's reference to "ordre public international" suggests, nations often distinguish between international public policy and domestic public policy, with the scope of the former being much narrower than the scope of the latter. Only the former, moreover, applies in an international conflict of laws setting, thereby permitting the domestic application of a foreign law that is different from forum law, but not so different that its application offends the forum's notions of international public policy. International public policy still only applies in a private law context, however, and thus does not operate to permit the displacement of forum public law.
  • 59
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    • A Counter-Revolution in Conflicts Law? from Beale to Cavers
    • See supra Part II A, particularly text accompanying notes 16-19; Albert A. Ehrenzweig, A Counter-Revolution in Conflicts Law? From Beale to Cavers, 80 HARV. L. REV. 377 (1966); Burger, Transnational Public Policy, supra note 33, at 368 n.8.
    • (1966) Harv. L. Rev. , vol.80 , pp. 377
    • Ehrenzweig, A.A.1
  • 60
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    • supra note 33, at 368 n.8
    • See supra Part II A, particularly text accompanying notes 16-19; Albert A. Ehrenzweig, A Counter-Revolution in Conflicts Law? From Beale to Cavers, 80 HARV. L. REV. 377 (1966); Burger, Transnational Public Policy, supra note 33, at 368 n.8.
    • Transnational Public Policy
    • Burger1
  • 61
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    • note
    • See Laker Airways Ltd. v. Sabena, Belgian World Airways, 731 F.2d 909, 922 (1984) ("[W]hen the national of one state causes substantial effects in another state, both states may potentially have jurisdiction to prescribe governing law. Thus, under international law, territoriality and nationality often give rise to concurrent jurisdiction."); Baade, supra note 15, at 443 ("International law . . . contemplates concurrent and possibly conflicting penal jurisdiction and hence, conflicting regulatory rules enforced by penalties."). Jurisdiction to prescribe concerns the authority of a state to make its law applicable to persons or activities. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 401 (a) (1988); RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW §§ 6. 17, 18 (1965). Whether or not an exercise of prescriptive jurisdiction is effective can turn on a state's jurisdiction to adjudicate, which concerns the authority of a state to subject persons or things to its judicial process (e.g., in personam jurisdiction and subject matter jurisdiction), and on a states jurisdiction to enforce, which concerns the authority of a state to compel compliance or punish noncompliance with its laws. RESTATEMENT (THIRD) OF FOREIGN RELATIONS IAW § 401 (b)-(c).
  • 62
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    • supra note 4, at 294 n.67
    • Section 40 of the RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW urged states to consider moderating their enforcement of properly prescribed law when the laws of two states "require inconsistent conduct upon the part of a person" (emphasis added). In that narrow situation, each forum state was urged to consider the relative interests of all regulating states. Id. § 40(a). As Professor Maier has noted, "the reasonableness requirement in section 40 is not relevant to whether prescriptive . . . jurisdiction exists ab initio." Maier, Extraterritorial Jurisdiction, supra note 4, at 294 n.67. Accommodating such compulsion to act inconsistently with properly prescribed law is essentially a purpose of the foreign sovereign compulsion and act of state doctrine defenses. See generally LOWENFELD, INTERNATIONAL LITIGATION, supra note 15, chs. 8-9.
    • Extraterritorial Jurisdiction
    • Maier1
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    • supra note 15, chs. 8-9
    • Section 40 of the RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW urged states to consider moderating their enforcement of properly prescribed law when the laws of two states "require inconsistent conduct upon the part of a person" (emphasis added). In that narrow situation, each forum state was urged to consider the relative interests of all regulating states. Id. § 40(a). As Professor Maier has noted, "the reasonableness requirement in section 40 is not relevant to whether prescriptive . . . jurisdiction exists ab initio." Maier, Extraterritorial Jurisdiction, supra note 4, at 294 n.67. Accommodating such compulsion to act inconsistently with properly prescribed law is essentially a purpose of the foreign sovereign compulsion and act of state doctrine defenses. See generally LOWENFELD, INTERNATIONAL LITIGATION, supra note 15, chs. 8-9.
    • International Litigation
    • Lowenfeld1
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    • Against Comity
    • See Louise Weinberg, Against Comity, 80 GEO. L.J. 53, 61 (1991) ("In international cases . . . when defendants argue against application of an act of Congress, courts are likely simply to construe the act to discover the extraterritorial intention of Congress. In such cases foreign law rarely enters the discussion."); Maier, Extraterritorial Jurisdiction, supra note 4, at 291 ("In the regulatory cases, the RESTATEMENT (SECOND) OF CONFLICTS and the RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW combine with statutory construction maxims to encourage an analytical approach that discourages overt consideration of the effect of an assertion of jurisdiction to prescribe or enforce in light of the needs of the transnational legal system."); Diane P. Wood, Conflicts of Jurisdiction in Antitrust Law: A Comment on Ordover and Atwood, 50 LAW & CONTEMP. PROBS. 179, 183 (1987) ("Once a particular country is satisfied that its own claim to jurisdiction is validly based, both the desirability and the need to adopt any conflict avoidance mechanism vanishes.").
    • (1991) Geo. L.J. , vol.80 , pp. 53
    • Weinberg, L.1
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    • 85081474119 scopus 로고    scopus 로고
    • supra note 4, at 291
    • See Louise Weinberg, Against Comity, 80 GEO. L.J. 53, 61 (1991) ("In international cases . . . when defendants argue against application of an act of Congress, courts are likely simply to construe the act to discover the extraterritorial intention of Congress. In such cases foreign law rarely enters the discussion."); Maier, Extraterritorial Jurisdiction, supra note 4, at 291 ("In the regulatory cases, the RESTATEMENT (SECOND) OF CONFLICTS and the RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW combine with statutory construction maxims to encourage an analytical approach that discourages overt consideration of the effect of an assertion of jurisdiction to prescribe or enforce in light of the needs of the transnational legal system."); Diane P. Wood, Conflicts of Jurisdiction in Antitrust Law: A Comment on Ordover and Atwood, 50 LAW & CONTEMP. PROBS. 179, 183 (1987) ("Once a particular country is satisfied that its own claim to jurisdiction is validly based, both the desirability and the need to adopt any conflict avoidance mechanism vanishes.").
    • Extraterritorial Jurisdiction
    • Maier1
  • 66
    • 8844228097 scopus 로고
    • Conflicts of Jurisdiction in Antitrust Law: A Comment on Ordover and Atwood
    • See Louise Weinberg, Against Comity, 80 GEO. L.J. 53, 61 (1991) ("In international cases . . . when defendants argue against application of an act of Congress, courts are likely simply to construe the act to discover the extraterritorial intention of Congress. In such cases foreign law rarely enters the discussion."); Maier, Extraterritorial Jurisdiction, supra note 4, at 291 ("In the regulatory cases, the RESTATEMENT (SECOND) OF CONFLICTS and the RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW combine with statutory construction maxims to encourage an analytical approach that discourages overt consideration of the effect of an assertion of jurisdiction to prescribe or enforce in light of the needs of the transnational legal system."); Diane P. Wood, Conflicts of Jurisdiction in Antitrust Law: A Comment on Ordover and Atwood, 50 LAW & CONTEMP. PROBS. 179, 183 (1987) ("Once a particular country is satisfied that its own claim to jurisdiction is validly based, both the desirability and the need to adopt any conflict avoidance mechanism vanishes.").
    • (1987) Law & Contemp. Probs. , vol.50 , pp. 179
    • Wood, D.P.1
  • 67
    • 85081467371 scopus 로고    scopus 로고
    • 148 F.2d 416 (2d Cir. 1945)
    • 148 F.2d 416 (2d Cir. 1945).
  • 68
    • 85081459991 scopus 로고    scopus 로고
    • note
    • The Second Circuit in Alcoa was sitting as a court of last resort by virtue of an assignment from the Supreme Court, which had been unable to muster a quorum of six unrecused Justices to hear the case. See id. at 421. The Supreme Court noted subsequently that this circumstance "add[s]" to "[Alcoa's] weight as a precedent." American Tobacco Co. v. United States, 328 U.S. 781, 811 (1946).
  • 69
    • 85081465657 scopus 로고    scopus 로고
    • SeeSherman Act, 15 U.S.C. § 1
    • SeeSherman Act, 15 U.S.C. § 1.
  • 70
    • 85081474847 scopus 로고    scopus 로고
    • See United States v. Aluminum Co. of Am., 148 F.2d at 439-43
    • See United States v. Aluminum Co. of Am., 148 F.2d at 439-43.
  • 71
    • 85081469936 scopus 로고    scopus 로고
    • See id. at 443-45
    • See id. at 443-45.
  • 72
    • 85081473497 scopus 로고    scopus 로고
    • note
    • Id. at 443 (emphasis added). See infra notes 191 and accompanying text, for a discussion of why the Supreme Court's later decision in Lauritzen v. Larsen, 345 U.S. 571 (1952), does not contradict this assertion by the Alcoa Court. In Lauritzen, the Court explicitly assessed the regulatory interests of other nations in determining the jurisdictional reach of the Jones Act, 46 U.S.C. § 688, which allows injured seamen to maintain personal injury damages actions in U.S. courts.
  • 73
    • 85081469927 scopus 로고    scopus 로고
    • note
    • The limits on prescriptive jurisdiction customarily observed by nations at the time of the Alcoa decision (and as Part IV demonstrates) obviously did not include deferring the exercise of otherwise permissible jurisdiction to the "superior" interest of another state. See supra notes 40-43 and accompanying text Thus, Judge Hand's reference to "the limitations customarily observed by nations upon the exercise of their powers" and his subsequent equation of those limitations with the "limitations which generally correspond to those fixed by the 'Conflict of Laws,'" 148 F.2d at 443, clearly did not mean that Judge Hand was suggesting or using in his analysis of the jurisdictional reach of U.S. antitrust law a "comparative interest balancing" approach to resolving conflicts typical of the private law arena. See supra note 40 and accompanying text Instead, he explained the "limitations" to which he referred exclusively in terms of the sufficiency of the relationship between the transaction or activities and the nation whose prescriptive jurisdiction is at issue. See infra text accompanying notes 51-52; see also RESTATEMENT (FIRST) OF CONFLICTS § 65 cmt a (1934) ("If consequences of an act done in one state occur in another state, each state in which any event in the series of act and consequences occurs may exercise legislative jurisdiction . . . . "). One author has suggested that "conflict of laws" includes noncomparative, "unilateral" approaches to determining the jurisdictional reach approaches to determining the jurisdictional reach of public law, and therefore, that it is improper to suggest that courts traditionally have not applied a "conflict of laws" approach to public law. See Dodge, supra note 25, at 143-44. I tend to view that suggestion as mistaken, or at best, as splitting hairs, but in all events, I am using in this Article the conventional understanding of the relationship between public law and conflicts law-namely, that public law traditionally has been outside the scope of conflict of laws/private international law and not simply within a unilateralist school of conflicts analysis.
  • 74
    • 85081470945 scopus 로고    scopus 로고
    • United States v. Aluminum Co. of Am., 148 F.2d at 444
    • United States v. Aluminum Co. of Am., 148 F.2d at 444.
  • 75
    • 84933496046 scopus 로고
    • The Extraterritorial Application of Antitrust and Securities Laws: An Inquiry into the Utility of a "Choice-of-Law" Approach
    • Id. at 443. Judge Hand's statement of this "traditional" rule obviously overlooked Justice Holmes' statement in American Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909), that, "the general and almost universal rule is that the character of an act as unlawful must be determined wholly by the law of the country where the act was done." The American Banana Court conse-quently refused application of the Sherman Act to an alleged conspiracy in Costa Rica between United Fruit Company (an American corporation) and the Government of Costa Rica to prevent American Banana Company (also an American company) from growing bananas in Costa Rica and shipping them to the United States for sale. Although never formally overruled, it seems clear that American Banana did not survive Alcoa. See, e.g., Russell J. Weintraub, The Extraterritorial Application of Antitrust and Securities Laws: An Inquiry into the Utility of a "Choice-of-Law" Approach, 70 TEX. L. REV. 1799, 1808 (1992) [hereinafter Weintraub, Extraterritorial Application]; Note, Extraterritorial Application of United States Laws: A Conflict of Laws Approach, 28 STAN. L. REV. 1005, 1009 n.23 (1976). The American Banana strict territorial approach to prescriptive jurisdiction likely would result in different outcomes in many international transactions than the Alcoa "intended effects" test, as well as a far greater accommodation of foreign regulatory interests. That is, the American Banana test typically results in a single nation having regulatory authority; the Alcoa test permits regulation by multiple nations. However, both tests are noncomparative in application insofar as each focuses on the sufficiency of a transaction's contacts with the candidate regulating nation rather than on how those contacts compare or "balance" in relation to the transaction's contacts with other nations.
    • (1992) Tex. L. Rev. , vol.70 , pp. 1799
    • Weintraub, R.J.1
  • 76
    • 85081465704 scopus 로고    scopus 로고
    • Id. at 443. Judge Hand's statement of this "traditional" rule obviously overlooked Justice Holmes' statement in American Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909), that, "the general and almost universal rule is that the character of an act as unlawful must be determined wholly by the law of the country where the act was done." The American Banana Court conse-quently refused application of the Sherman Act to an alleged conspiracy in Costa Rica between United Fruit Company (an American corporation) and the Government of Costa Rica to prevent American Banana Company (also an American company) from growing bananas in Costa Rica and shipping them to the United States for sale. Although never formally overruled, it seems clear that American Banana did not survive Alcoa. See, e.g., Russell J. Weintraub, The Extraterritorial Application of Antitrust and Securities Laws: An Inquiry into the Utility of a "Choice-of-Law" Approach, 70 TEX. L. REV. 1799, 1808 (1992) [hereinafter Weintraub, Extraterritorial Application]; Note, Extraterritorial Application of United States Laws: A Conflict of Laws Approach, 28 STAN. L. REV. 1005, 1009 n.23 (1976). The American Banana strict territorial approach to prescriptive jurisdiction likely would result in different outcomes in many international transactions than the Alcoa "intended effects" test, as well as a far greater accommodation of foreign regulatory interests. That is, the American Banana test typically results in a single nation having regulatory authority; the Alcoa test permits regulation by multiple nations. However, both tests are noncomparative in application insofar as each focuses on the sufficiency of a transaction's contacts with the candidate regulating nation rather than on how those contacts compare or "balance" in relation to the transaction's contacts with other nations.
    • Extraterritorial Application
    • Weintraub1
  • 77
    • 8844228851 scopus 로고
    • Extraterritorial Application of United States Laws: A Conflict of Laws Approach
    • Id. at 443. Judge Hand's statement of this "traditional" rule
    • (1976) Stan. L. Rev. , vol.28 , Issue.23 , pp. 1005
  • 78
    • 84930559810 scopus 로고
    • The International Reach of Rule 10b-5: The Myth of Congressional Silence
    • Issues concerning the reach or scope of a nation's prescriptive jurisdiction arise most typically when there is some "extraterritorial aspect to the application of the prescribing nation's law, as when the objects of the particular regulatory assertion are foreign nationals or conduct occurring abroad - factors present in most multinational transactions. The "intended effects" test does not result in an "extraterritorial" assertion of jurisdiction in the sense that nothing of regulatory significance occurs in the regulating nation - effects do. See, e.g., Laker Airways Limited v. Sabena, Belgian World Airways, 731 F.2d 909, 923 (1984). This Article's consideration of the "extraterritorial" reach of public law is essentially confined to the question of whether the judicial determination of that issue has included or should include "comparative interest balancing" typical of conflict of laws, or whether instead the judicial determination of that issue should be confined to the traditionally non-comparative inquiry into Congressional intent (i.e., this Article considers only whether it makes sense to restore a categorical exemption of "mandatory public laws" from judicially applied contract choice of law principles). I will not otherwise address in any detail the important question of what rules of construction or other standards should govern the judicial inquiry into issues of public law "extraterritoriality." The literature on that question is abundant and voluminous. See, e.g., Margaret Sachs, The International Reach of Rule 10b-5: The Myth of Congressional Silence, 28 COLUM. J. TRANSNT'L L. 677, 682-83 n.23 (1990); see generally Jonathan Turley, When in Rome: Multinational Misconduct and the Presumption Against Extraterritoriality, 84 NW. U. L. REV. 598 (1990); Symposium, Extraterritoriality of Economic Lgislation, 50 LAW & CONTEMP. PROBS., No. 3 (1987).
    • (1990) Colum. J. Transnt'l L. , vol.28 , Issue.23 , pp. 677
    • Sachs, M.1
  • 79
    • 84930556631 scopus 로고
    • When in Rome: Multinational Misconduct and the Presumption Against Extraterritoriality
    • Issues concerning the reach or scope of a nation's prescriptive jurisdiction arise most typically when there is some "extraterritorial aspect to the application of the prescribing nation's law, as when the objects of the particular regulatory assertion are foreign nationals or conduct occurring abroad - factors present in most multinational transactions. The "intended effects" test does not result in an "extraterritorial" assertion of jurisdiction in the sense that nothing of regulatory significance occurs in the regulating nation - effects do. See, e.g., Laker Airways Limited v. Sabena, Belgian World Airways, 731 F.2d 909, 923 (1984). This Article's consideration of the "extraterritorial" reach of public law is essentially confined to the question of whether the judicial determination of that issue has included or should include "comparative interest balancing" typical of conflict of laws, or whether instead the judicial determination of that issue should be confined to the traditionally non-comparative inquiry into Congressional intent (i.e., this Article considers only whether it makes sense to restore a categorical exemption of "mandatory public laws" from judicially applied contract choice of law principles). I will not otherwise address in any detail the important question of what rules of construction or other standards should govern the judicial inquiry into issues of public law "extraterritoriality." The literature on that question is abundant and voluminous. See, e.g., Margaret Sachs, The International Reach of Rule 10b-5: The Myth of Congressional Silence, 28 COLUM. J. TRANSNT'L L. 677, 682-83 n.23 (1990); see generally Jonathan Turley, When in Rome: Multinational Misconduct and the Presumption Against Extraterritoriality, 84 NW. U. L. REV. 598 (1990); Symposium, Extraterritoriality of Economic Lgislation, 50 LAW & CONTEMP. PROBS., No. 3 (1987).
    • (1990) Nw. U. L. Rev. , vol.84 , pp. 598
    • Turley, J.1
  • 80
    • 85081474186 scopus 로고
    • Extraterritoriality of Economic Lgislation
    • Issues concerning the reach or scope of a nation's prescriptive jurisdiction arise most typically when there is some "extraterritorial aspect to the application of the prescribing nation's law, as when the objects of the particular regulatory assertion are foreign nationals or conduct occurring abroad - factors present in most multinational transactions. The "intended effects" test does not result in an "extraterritorial" assertion of jurisdiction in the sense that nothing of regulatory significance occurs in the regulating nation - effects do. See, e.g., Laker Airways Limited v. Sabena, Belgian World Airways, 731 F.2d 909, 923 (1984). This Article's consideration of the "extraterritorial" reach of public law is essentially confined to the question of whether the judicial determination of that issue has included or should include "comparative interest balancing" typical of conflict of laws, or whether instead the judicial determination of that issue should be confined to the traditionally non-comparative inquiry into Congressional intent (i.e., this Article considers only whether it makes sense to restore a categorical exemption of "mandatory public laws" from judicially applied contract choice of law principles). I will not otherwise address in any detail the important question of what rules of construction or other standards should govern the judicial inquiry into issues of public law "extraterritoriality." The literature on that question is abundant and voluminous. See, e.g., Margaret Sachs, The International Reach of Rule 10b-5: The Myth of Congressional Silence, 28 COLUM. J. TRANSNT'L L. 677, 682-83 n.23 (1990); see generally Jonathan Turley, When in Rome: Multinational Misconduct and the Presumption Against Extraterritoriality, 84 NW. U. L. REV. 598 (1990); Symposium, Extraterritoriality of Economic Lgislation, 50 LAW & CONTEMP. PROBS., No. 3 (1987).
    • (1987) Law & Contemp. Probs. , vol.50 , Issue.3
  • 81
    • 84866794808 scopus 로고
    • §17
    • The traditional bases of prescriptive jurisdiction, in addition to "intended effects" within the prescribing territory, are conduct within the territory of the prescribing nation and regulation of the activities of nationals of the prescribing nation wherever the activities occur. See RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW §17 (1965); see also Maier, Extraterritorial Jurisdiction, supra note 4, at 293 n.63 (identifying additional bases of prescriptive jurisdiction outside of a commercial context, such as when dealing with international terrorism).
    • (1965) Restatement (Second) of Foreign Relations Law
  • 82
    • 85081474119 scopus 로고    scopus 로고
    • supra note 4, at 293 n.63
    • The traditional bases of prescriptive jurisdiction, in addition to "intended effects" within the prescribing territory, are conduct within the territory of the prescribing nation and regulation of the activities of nationals of the prescribing nation wherever the activities occur. See RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW §17 (1965); see also Maier, Extraterritorial Jurisdiction, supra note 4, at 293 n.63 (identifying additional bases of prescriptive jurisdiction outside of a commercial context, such as when dealing with international terrorism).
    • Extraterritorial Jurisdiction
    • Maier1
  • 83
    • 85081462965 scopus 로고    scopus 로고
    • See discussion infra Part III, Subparts III.A and III.B
    • See discussion infra Part III, Subparts III.A and III.B.
  • 84
    • 85081464801 scopus 로고    scopus 로고
    • United States v. Aluminum Co. of Am., 148 F.2d at 443
    • United States v. Aluminum Co. of Am., 148 F.2d at 443.
  • 87
    • 85081474119 scopus 로고    scopus 로고
    • supra note 4, at 292-93
    • See Maier, Extraterritorial Jurisdiction, supra note 4, at 292-93. See supra note 42 and accompanying text for an explanation of why section 40 of the SECOND RESTATEMENT OF FOREIGN RELATIONS does not undercut my assertion about the SECOND RESTATEMENT's essentially non-comparative approach to prescriptive jurisdiction.
    • Extraterritorial Jurisdiction
    • Maier1
  • 88
    • 85081469260 scopus 로고    scopus 로고
    • The Extraterritorial Regulation of Foreign Business under the U.S. Securities Laws
    • Most of the case law and commentary concerns the international reach of the antifraud provisions of the Securities Exchange Act, specifically Section 10(b) and Rule 10b-5 (Securities Exchange Act of 1934 § 10(b), 15 U.S.C. § 78j(b) (1996) and 17 C.F.R. § 240.1 Ob-5 (1996)), which generally prohibit any person from using the means and instrumentalities of interstate commerce to effect fraudulent securities transactions. See generally Sachs, supra note 53, at 682 n.19, 682-83 n.23; Turley, supra note 53, at 614. Other provisions of the Securities Acts, including their registration and filing requirements, do not have equally extensive international application. Id. See also Robert Hacker & Ronald Rotunda, The Extraterritorial Regulation of Foreign Business Under the U.S. Securities Laws, 59 N.C.L. REV. 643, 649; Weintraub, Extraterritorial Application, supra note 52, at 1814; 17 C.F.R. §§ 230.901-904 (1991) (establishing Regulation S, which eliminates the requirement of registration under the Securities Act of 1933, 15 U.S.C. § 77e (1988) for offers and sales of securities that occur outside the United States).
    • N.C.L. REV. , vol.59 , pp. 643
    • Hacker, R.1    Rotunda, R.2
  • 89
    • 85081465704 scopus 로고    scopus 로고
    • Most of the case law and commentary concerns the international reach of the antifraud provisions of the Securities Exchange Act, specifically Section 10(b) and Rule 10b-5 (Securities Exchange Act of 1934 § 10(b), 15 U.S.C. § 78j(b) (1996) and 17 C.F.R. § 240.1 Ob-5 (1996)), which generally prohibit any person from using the means and instrumentalities of interstate commerce to effect fraudulent securities transactions. See generally Sachs, supra note 53, at 682 n.19, 682-83 n.23; Turley, supra note 53, at 614. Other provisions of the Securities Acts, including their registration and filing requirements, do not have equally extensive international application. Id. See also Robert Hacker & Ronald Rotunda, The Extraterritorial Regulation of Foreign Business Under the U.S. Securities Laws, 59 N.C.L. REV. 643, 649; Weintraub, Extraterritorial Application, supra note 52, at 1814; 17 C.F.R. §§ 230.901-904 (1991) (establishing Regulation S, which eliminates the requirement of registration under the Securities Act of 1933, 15 U.S.C. § 77e (1988) for offers and sales of securities that occur outside the United States).
    • Extraterritorial Application
    • Weintraub1
  • 90
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    • note
    • See Robinson v. TCI/US West Cable Communications Inc., 117 F.3d 900, 904-05 (5th Cir. 1997). [T]he Exchange Act does [not explicitly] address the circumstances under which American courts have subject matter jurisdiction to hear suits involving foreign transactions . . . . The courts . . . have created two basic tests[:] . . . the 'conduct' test, which in essence asks whether the [allegedly] fraudulent conduct . . . occurred in the United States, and the 'effects' test, which asks whether conduct outside the United States has had a substantial adverse effect on American investors or securities markets. Id.; see also Turley, supra note 53, at 613; Hacker & Rotunda, supra note 60, at 656-66.
  • 91
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    • note
    • See, e.g., Robinson, 117 F.3d at 905-06, in which the Fifth Circuit stated: The circuits are divided as to precisely what sort of activities are needed to satisfy the conduct test. . . . The more restrictive position - that the domestic conduct must have been of 'material importance' to or have 'directly caused' the fraud complained of - is followed in the Second and District of Columbia Circuits [which we now adopt]. See also, e.g., Alfadda v. Fenn, 935 F.2d 475, 478 (2d Cir. 1991) (applying antifraud provisions because the "defendant's conduct in the United States was more than merely preparatory to the fraud, and . . . directly caused losses to foreign investors abroad"); Bersch v. Drexel Firestone, Inc., 519 F.2d 974, 989 (2d Cir. 1975) (applying antifraud provisions "only when [the foreign acts] result in injury to purchasers or sellers ... in whom the United States has an interest, not where acts simply have an adverse affect [sic] on the American economy or American investors generally"); Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326, 1337 (2d Cir. 1972) ("[I]t tips the scales in favor of applicability when substantial misrepresentations were made in the United States.").
  • 92
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    • supra note 4, at 298
    • The lack of a transaction's connection with the United States, of course, often inevitably reveals a stronger connection between the transaction and some other potential prescribing jurisdiction. See, e.g., Zoelsch v. Arthur Andersen & Co., 824 F.2d 27, 34 (D.C. Cir. 1987) (noting that the fraudulent "core" occurred in West Germany and any misrepresentations in the United States were not "sufficiently in connection with the purchase or sale of any security"); Mormels v. Girofinance, S.A., 544 F. Supp. 815, 818 (S.D.N.Y 1982) (noting that defendants committed the "crucial acts" of fraud in Costa Rica; any U.S. acts were of a "secondary nature"). The basis of decisions refusing to apply U.S. securities law still is the insufficiency of the contacts or effects in the United States, not the comparatively greater connection between the transaction and some other jurisdiction despite the sufficiency of the contacts or effects in the United States. See also, Maier, Extraterritorial Jurisdiction, supra note 4, at 298.
    • Extraterritorial Jurisdiction
    • Maier1
  • 93
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    • note
    • Traditionally, the Supreme Court has weighed territorial constraints far more heavily in considering the extraterritorial application of public laws outside the antitrust and securities areas, such as labor law. In Foley. Filardo, 336 U.S. 281 (1949), for example, the Court invoked the "canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States, in holding that the federal Eight Hour Law, (40 U.S.C. §§ 324-25 (1940), which imposes overtime compensation for work in excess of eight hours a day did not apply to protect a U.S. employee of a U.S. company abroad. The Supreme Court invoked the same canon more recently to deny extraterritorial application to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-2000h-6 (1992). See EEOC v. Arabian American Oil Co., 111 S.Ct. 1227, 1230-35 (1991) (holding mat Title VII does not apply to U.S. citizens employed abroad by U.S. employers). This result has since been overturned by Congress. See 42 U.S.C. § 2000e(f), 12111(4) (1991). These cases sometimes express a concern that applying U.S. law would interfere unduly with the regulatory prerogative of foreign nations. See, e.g., Foley v. Filardo, 336 U.S. at 286 ("An intention . . . to regulate labor conditions which are the primary concern of a foreign country should not be attributed to Congress in the absence of a clearly expressed purpose."). But this generalized concern works to constrain all extraterritorial applications of the particular law, not a specific one that constrains a specific application in light of the comparatively greater regulatory interest of a specific nation. Thus, although limiting the application of these public laws to the territorial boundaries of the United States obviously results in greater comity or deference to other regulatory jurisdictions, the canon of construction itself is no more comparative or conflicts like than the "conduct" and "intended effects" tests of extraterritoriality in the antitrust and securities areas.
  • 94
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    • The Institutional Theory
    • See W. Ivor Jennings, The Institutional Theory, in MODERN THEORIES OF LAW 68, 72 (1933) ("[P]ublic law . . . is gradually eating up private law."); Lowenfeld, Public Law, supra note 2, at 325 ("Governments regulate . . . more and more activity of all kinds."); John Henry Merryman, The Public Law-Private Law Distinction in European and American Law, 17 J. PUB. L. 3, 15 (1968) ("[T]oday it is common for the state to 'intervene' in the society and the economy. The individualistic state of the 19th century has been replaced by the social state of the 20th century."); Roscoe Pound, Public Law and Private Law, 24 CORNELL L.Q. 469, 470 (1939) [hereinafter Pound, Public Law] (discussing "the disappearance of private law"); Trautman, supra note 4, at 601 (noting "the increasing scope of public regulation").
    • (1933) MODERN THEORIES of LAW , pp. 68
    • Jennings, W.I.1
  • 95
    • 84890749031 scopus 로고    scopus 로고
    • supra note 2, at 325
    • See W. Ivor Jennings, The Institutional Theory, in MODERN THEORIES OF LAW 68, 72 (1933) ("[P]ublic law . . . is gradually eating up private law."); Lowenfeld, Public Law, supra note 2, at 325 ("Governments regulate . . . more and more activity of all kinds."); John Henry Merryman, The Public Law-Private Law Distinction in European and American Law, 17 J. PUB. L. 3, 15 (1968) ("[T]oday it is common for the state to 'intervene' in the society and the economy. The individualistic state of the 19th century has been replaced by the social state of the 20th century."); Roscoe Pound, Public Law and Private Law, 24 CORNELL L.Q. 469, 470 (1939) [hereinafter Pound, Public Law] (discussing "the disappearance of private law"); Trautman, supra note 4, at 601 (noting "the increasing scope of public regulation").
    • Public Law
    • Lowenfeld1
  • 96
    • 8844245503 scopus 로고
    • The Public Law-Private Law Distinction in European and American Law
    • See W. Ivor Jennings, The Institutional Theory, in MODERN THEORIES OF LAW 68, 72 (1933) ("[P]ublic law . . . is gradually eating up private law."); Lowenfeld, Public Law, supra note 2, at 325 ("Governments regulate . . . more and more activity of all kinds."); John Henry Merryman, The Public Law-Private Law Distinction in European and American Law, 17 J. PUB. L. 3, 15 (1968) ("[T]oday it is common for the state to 'intervene' in the society and the economy. The individualistic state of the 19th century has been replaced by the social state of the 20th century."); Roscoe Pound, Public Law and Private Law, 24 CORNELL L.Q. 469, 470 (1939) [hereinafter Pound, Public Law] (discussing "the disappearance of private law"); Trautman, supra note 4, at 601 (noting "the increasing scope of public regulation").
    • (1968) J. Pub. L. , vol.17 , pp. 3
    • Merryman, J.H.1
  • 97
    • 37949036146 scopus 로고
    • Public Law and Private Law
    • See W. Ivor Jennings, The Institutional Theory, in MODERN THEORIES OF LAW 68, 72 (1933) ("[P]ublic law . . . is gradually eating up private law."); Lowenfeld, Public Law, supra note 2, at 325 ("Governments regulate . . . more and more activity of all kinds."); John Henry Merryman, The Public Law-Private Law Distinction in European and American Law, 17 J. PUB. L. 3, 15 (1968) ("[T]oday it is common for the state to 'intervene' in the society and the economy. The individualistic state of the 19th century has been replaced by the social state of the 20th century."); Roscoe Pound, Public Law and Private Law, 24 CORNELL L.Q. 469, 470 (1939) [hereinafter Pound, Public Law] (discussing "the disappearance of private law"); Trautman, supra note 4, at 601 (noting "the increasing scope of public regulation").
    • (1939) Cornell L.Q. , vol.24 , pp. 469
    • Pound, R.1
  • 98
    • 84890749031 scopus 로고    scopus 로고
    • See W. Ivor Jennings, The Institutional Theory, in MODERN THEORIES OF LAW 68, 72 (1933) ("[P]ublic law . . . is gradually eating up private law."); Lowenfeld, Public Law, supra note 2, at 325 ("Governments regulate . . . more and more activity of all kinds."); John Henry Merryman, The Public Law-Private Law Distinction in European and American Law, 17 J. PUB. L. 3, 15 (1968) ("[T]oday it is common for the state to 'intervene' in the society and the economy. The individualistic state of the 19th century has been replaced by the social state of the 20th century."); Roscoe Pound, Public Law and Private Law, 24 CORNELL L.Q. 469, 470 (1939) [hereinafter Pound, Public Law] (discussing "the disappearance of private law"); Trautman, supra note 4, at 601 (noting "the increasing scope of public regulation").
    • Public Law
  • 99
    • 8844285111 scopus 로고
    • The Sources of Law in a Changing Legal Order
    • See Mary Ann Glendon, The Sources of Law in a Changing Legal Order, 17 CREIGHTON L. REV. 663, 666-68 (1984) (discussing "the rise of statutory law"); Joel P. Trachtman, Conflict of Laws and Accuracy in the Allocation of Government Responsibility, 26 VAND. J. TRANSNAT'L L. 975, 983 (1994) (noting "the problem of increased statutory and regulatory law").
    • (1984) Creighton L. Rev. , vol.17 , pp. 663
    • Glendon, M.A.1
  • 100
    • 0042379471 scopus 로고
    • Conflict of Laws and Accuracy in the Allocation of Government Responsibility
    • See Mary Ann Glendon, The Sources of Law in a Changing Legal Order, 17 CREIGHTON L. REV. 663, 666-68 (1984) (discussing "the rise of statutory law"); Joel P. Trachtman, Conflict of Laws and Accuracy in the Allocation of Government Responsibility, 26 VAND. J. TRANSNAT'L L. 975, 983 (1994) (noting "the problem of increased statutory and regulatory law").
    • (1994) Vand. J. Transnat'l L. , vol.26 , pp. 975
    • Trachtman, J.P.1
  • 101
    • 85081460044 scopus 로고    scopus 로고
    • note
    • See, e.g., Baade, supra note 15, at 435 ("Private law, too, serves a governmental purpose."); Trachtman, supra note 66, at 997 ("Sometimes the public interest is the protection of private interests."); id. at 1009 ("Provided one accepts as part of public policy . . . the interest in efficiency in private transactions, there is no longer a preserved sphere for private law."). See also Baade, supra note 15, at 437 (noting that Professor Currie's "[g]ovemment interests [conflicts] analysis . . . has the potential for overcoming the public-private distinction in the conflict of laws altogether" because "if even private-law disputes can be resolved by a process which attributes a governmental purpose to each and every rule of law adopted by a sovereign state, public-law conflicts can, by definition, be resolved at least as easily through the application of the same scheme"). Professor Baade concluded that government interests analysis alone, however, has not resulted in the abrogation of the public/private distinction because Professor Currie's method started as a "private-law method in one country and still encounters resistance even there." But cf., Lowenfeld, Public Law, supra note 2, at 335 ("[T]he governmental interests of which Currie and his followers speak in the private law contexts are imaginary: governments . . . do not really care about whether the driver of an automobile is liable to a passenger . . . .").
  • 102
    • 85081459839 scopus 로고    scopus 로고
    • Trachtman, supra note 66, at 985
    • Trachtman, supra note 66, at 985.
  • 103
  • 104
    • 85081466141 scopus 로고    scopus 로고
    • Harlow, supra note 3, at 246.
    • Harlow, supra note 3, at 246.
  • 105
  • 106
    • 85081474268 scopus 로고    scopus 로고
    • Trautman, supra note 4, at 590.
    • Trautman, supra note 4, at 590.
  • 107
    • 85081470185 scopus 로고    scopus 로고
    • See discussion supra Part IVA
    • See discussion supra Part IVA.
  • 108
    • 85081472924 scopus 로고    scopus 로고
    • 345 U.S. 571 (1953)
    • 345 U.S. 571 (1953).
  • 109
    • 85081469461 scopus 로고    scopus 로고
    • 358 U.S. 354 (1959)
    • 358 U.S. 354 (1959).
  • 110
    • 85081471620 scopus 로고    scopus 로고
    • note
    • 46 U.S.C.A. § 688 (West 1998). The Jones Act allow injured seamen to maintain damages actions in U.S. courts.
  • 111
    • 85081466536 scopus 로고    scopus 로고
    • See Hartford Fire, 509 U.S. at 795
    • See Hartford Fire, 509 U.S. at 795.
  • 112
    • 85081465357 scopus 로고    scopus 로고
    • note
    • The majority found the following statement made by the London reinsurers at oral argument to be a concession: "Our position is not that the Sherman Act does not apply. . . . Our position is that there are certain circumstances, and that this is one of them, in which the interests of another State are sufficient that the exercise of that jurisdiction should be restrained." Id. The Hartford Fire dissent disagreed about whether the London reinsurers actually had intended this as a concession, but the substance of the disagreement seemed to have less to do with the interpretation of the London reinsurers' remarks than it did with the legal issue of whether or not comity or comparative interest balancing is relevant to the jurisdictional reach of the Sherman Act Significantly, despite viewing the defendants' statement as a concession, the Hartford Frie majority clearly endorsed the Alcoa "intended effects" test as the test of the jurisdictional reach of the Sherman Act. Id. ("[I]t is well established by now that the Sherman Act applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States.").
  • 113
    • 85081473978 scopus 로고    scopus 로고
    • 509 U.S. at 799
    • 509 U.S. at 799.
  • 114
    • 85081473494 scopus 로고    scopus 로고
    • See supra note 155 and accompanying text
    • See supra note 155 and accompanying text
  • 115
    • 85081469550 scopus 로고    scopus 로고
    • 509 U.S. at 812-22
    • 509 U.S. at 812-22.
  • 116
    • 85081465941 scopus 로고    scopus 로고
    • See supra text accompanying notes 87-101
    • See supra text accompanying notes 87-101.
  • 117
    • 85081463701 scopus 로고    scopus 로고
    • See supra text accompanying note 155
    • See supra text accompanying note 155.
  • 118
    • 85081467307 scopus 로고    scopus 로고
    • See supra text accompanying notes 106-108
    • See supra text accompanying notes 106-108.
  • 119
    • 85081465059 scopus 로고    scopus 로고
    • See supra note 107 for the text of section 40
    • See supra note 107 for the text of section 40.
  • 120
    • 85081466753 scopus 로고    scopus 로고
    • See supra text accompanying notes 106-107
    • See supra text accompanying notes 106-107.
  • 121
    • 85081466582 scopus 로고    scopus 로고
    • 509 U.S. at 796-97
    • 509 U.S. at 796-97.
  • 122
    • 0347820896 scopus 로고
    • The Historical Bases of Private International Law
    • On the surface, the process and result of classifying law's is reminiscent of the thirteenth and fourteenth century Italian statutists, who determined a law's sphere of application according to the category in which it was classified - a system whose eventual complications led to its demise. See, e.g., Hessel E. Yntema, The Historical Bases of Private International Law, 2 AM. J. COMP. L. 297, 303-04 (1953); Maier, Extraterritorial Jurisdiction, supra note 4, at 282 n.5; Paul, supra note 28, at 13-14. The classification that occurs in the context of the public law taboo does not suffer a similar infirmity. The sphere of application of a law within the taboo depends on the law's intent, not on its categorization.
    • (1953) Am. J. Comp. L. , vol.2 , pp. 297
    • Yntema, H.E.1
  • 123
    • 85081474119 scopus 로고    scopus 로고
    • On the surface, the process and result of classifying law's is reminiscent of the thirteenth and fourteenth century Italian statutists, who determined a law's sphere of application according to the category in which it was classified - a system whose eventual complications led to its demise. See, e.g., Hessel E. Yntema, The Historical Bases of Private International Law, 2 AM. J. COMP. L. 297, 303-04 (1953); Maier, Extraterritorial Jurisdiction, supra note 4, at 282 n.5; Paul, supra note 28, at 13-14. The classification that occurs in the context of the public law taboo does not suffer a similar infirmity. The sphere of application of a law within the taboo depends on the law's intent, not on its categorization.
    • Extraterritorial Jurisdiction
    • Maier1
  • 124
    • 85081470363 scopus 로고    scopus 로고
    • note
    • Clearly, public laws may designate their own scope of application, and it seems something of an abdication of responsibility for Congress, the Executive branch, or independent agencies responsible for public law enforcement not to be more diligent with respect to issues of so-called "extraterritorial" regulation. See supra notes 61, 204 and accompanying text; see also, e.g., Commodities Exchange Act, 7 U.S.C. § 2 (1994) (disclaiming explicitly regulation of transactions in foreign currencies that do not occur on a domestic board of trade); Salomon Forex, Inc. v. Tauber, 8 F.3d 966, 975-78 (4th Cir. 1993) (applying 7 U.S.C. § 2).


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