What Law Governs the Validity of a Contract. I.

Beale, Joseph Henry

doi:10.2307/1324559

Cited by 5 publications

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“…Cross-border transactions were not uncommon in the 19th century and some contracts included parties’ governing law wishes, but while England already upheld such clauses, US courts were inconsistent. 3 Some ignored party intention altogether; others upheld not only “express” but even “presumed” intentions regarding choice of law, though some connection between transaction and selected law was usually required (Beale, 1909; Cook, 1937; Prebble, 1973; Yntema, 1955). As the US economy expanded rapidly in the late 19th and early 20th centuries, with the rise of large corporations, full development of the railroads, and surging highway construction, the frequency and complexity of commercial conflicts cases increased, sparking a heated debate between dominant legal “formalists” and increasingly influential legal Realists over whether or not private parties should be able to select their own governing law.…”

Section: Part I: the Conflicts Revolutionmentioning

confidence: 99%

Reterritorializing economic governance: Contracts, space, and law in transborder economic geographies

Potts

2015

Environ Plan A

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All large firms exploit regulatory variation across jurisdictions by exporting activity to strategic locations around the globe. Less well known are the ways major economic players bring other jurisdictions to them without moving at all. The use of governing law clauses by which parties select which jurisdiction’s laws will apply to their contracts, means that many commercial contracts today, especially in finance, have little or no significant connection to the jurisdictions that govern them. In this article, I explore 20th-century transformations in US choice of law practices to argue that changing conceptions of freedom of contract and the public–private distinction have been intimately linked to increasingly flexible economic geographies and a reterritorialization of economic governance. The results have been far from homogeneous; governing law clauses have become an important tool of competition among jurisdictions, with some losing control of economic activity within their own borders, while others, like New York and England, have gained influence far beyond theirs.

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Section: Part I: the Conflicts Revolutionmentioning

confidence: 99%

Reterritorializing economic governance: Contracts, space, and law in transborder economic geographies

Potts

2015

Environ Plan A

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“…The early cases, in agreement with Story, 6 e held that the law of the lex loci contractus controlled except when the contract was to be performed elsewhere, when, in accordance with the presumed intention of the parties, the law of the place of performance would control. Professor Beale 70 has regarded this as an importation of continental ideas inconsistent with the principle of territoriality adopted by the common law, according to which the state in which a contract is technically made has exclusive power to attach legal con-sequences to the operative facts. As Reporter of the Conflict of Laws for the American Law Institute, Professor Beale succeeded in making his views the basis of the Restatement.…”

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confidence: 99%