Conflict of Economic Laws: From Sovereignty to Substance

This article examines how the globalization of economic markets, and attendant changes in international regulatory strategies, challenge the traditional framework of private international law. It examines a variety of developments in the areas of securities, antitrust, and bankruptcy law, analyzing the ways in which they undermine the conception of regulatory power as grounded in the territorial authority of sovereign states. Specifically, the article argues that these changes reflect a shift in conflicts jurisprudence away from the traditional jurisdiction-selecting model and toward a substance-based model, in which a state\u27s economic policy interests can be protected simply through assurance that the substance of applicable law - whether foreign law, supranational law or lex mercatoria - is sufficiently similar to that of the state concerned. The article suggests that because such an approach does not view every conflict as a competition for regulatory authority among sovereigns, it can reduce the potential for friction in foreign relations. It also assesses the disadvantages of the substantivist approach, however, and concludes by suggesting some re-integration of territorial factors into private international law analysis