Document Type

Article

Publication Title

Duke Journal of Comparative & International Law

Abstract

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.

First Page

405

Volume

27

Publication Date

2017

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