Lehmann, Matthias --- "New challenges of extraterritoriality: superposing laws" [2019] ELECD 2908; in Ferrari, Franco; Fernandez Arroyo, P. Diego (eds), "Private International Law" (Edward Elgar Publishing, 2019) 258

Book Title: Private International Law

Editor(s): Ferrari, Franco; Fernández Arroyo, P. Diego

Publisher: Edward Elgar Publishing

Section: Chapter 10

Section Title: New challenges of extraterritoriality: superposing laws

Author(s): Lehmann, Matthias

Number of pages: 34

Abstract/Description:

While extraterritoriality is often bemoaned, this chapter makes the point that it is actually indispensable. If the state wants to maintain its regulatory grip under the conditions of globalization on phenomena such as the internet, it must reach beyond its borders. Without extraterritoriality, its laws could easily be circumvented. Extraterritoriality is therefore nothing else than the state’s response to the growing interconnectedness and interdependence of the modern world. Yet from extraterritoriality springs the more problematic phenomenon of ‘superposing laws’, defined here as the overlap of various mandatory rules that often require contradictory behaviour and result in conflicting duties. The chapter suggests that we should shift the discussion to this issue, arguing that classic public and private international law are incapable of dealing with the problem. Instead, a new path is suggested: enlightened self-restraint by states and the widespread acceptance of substituted compliance.