Tax Havens as Producers of Corporate Law

This Review Essay situates Christopher Bruner’s new book, Re-imagining Offshore Finance, within the literature examining the regulation of cross-border finance and highlights its import for thinking about the complicated (and contested) relationship between territorially-configured domestic laws and the increasingly liberal movement of capital. Part I sets out the book’s central thesis. In addition to highlighting Bruner’s novel framework identifying the factors that propel certain small jurisdictions into becoming magnets for cross-border finance, I outline the limits of the framework in accounting for the stability in the overall demand for the commercialization of sovereignty, only one of which is facilitating international tax evasion. Part II examines the rise of offshore financial havens as they relate to the territorially-configured domestic rules — a subject that has yet to attract the attention that it deserves. While the rise of offshore financial havens has been viewed as typifying the continued dominance of territorial sovereignty, I show that it is private choice and juridical rules that have been privileged over strictly territorial conceptions of the law. I use recent developments in corporate law and bankruptcy law to show that domestic laws governing certain financial transactions are already ceding to privately-curated juridical rules, albeit not without resistance