Contemporary Challenges and Continuing Relevance
Edited by Franco Ferrari and Diego P. Fernández Arroyo
Chapter 10: New challenges of extraterritoriality: superposing laws
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.
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