To inform the ongoing Restatement efforts in Conflict of Laws and Foreign Relations, the authors identify two areas where the "transnational case" might deserve special consideration: judicial jurisdiction over foreign defendants and party autonomy in choosing the applicable law. On the question of judicial jurisdiction, the authors point out that the modern two-step constitutional test for specific jurisdiction articulated in Asahi—"minimum contacts" and then "reasonableness"—involved a foreign defendant. Although the lower courts appear to embrace the same standard with respect to both domestic and foreign defendants, they argue that the factors identified by the court in the "reasonableness" analysis best reflect comity concerns that are most relevant when the case is against a foreign defendant. To that end, the authors sampled over 400 cases since 2000 that show courts effectively only dismiss for lack of jurisdiction on "reasonableness" grounds when the defendant is foreign. On the question of party autonomy and choice of law in contracts, the authors highlight the Supreme Court's emphasis on party autonomy in the international context and argue that more leeway should be given to the parties to choose the applicable law in an international commercial context.
Date of Authorship for this Version
Silberman, Linda J. and Yaffe, Nathan, "The Transnational Case in Conflict of Laws: Two Suggestions for the New Restatement Third of Conflict of Laws--Judicial Jurisdiction and Party Autonomy in International Contracts" (2017). New York University Public Law and Legal Theory Working Papers. 579.