Three Positive Theories of International Jurisdiction

Abstract

What are the justifications for a state to allow its courts to exercise jurisdiction over cases with international characteristics? In this paper, I explore three different positive theories of private law jurisdiction. The first is a utilitarian theory. However, a utilitarian theory requires the additional specification of the "number", whose greatest good is sought. I contrast a very narrow theory which purports to minimise the costs of judicial administration, a pro-forum theory which seeks to maximise the value of local interests, and a broad theory which is wealth-maximising irrespective of the locus of plaintiffs and defendants. Second, I develop a justice-based theory of contractarian derivation, with a brief contrast of what a corrective justice theory might require. Third, I explore a public choice theory of jurisdiction, which asserts that jurisdictional principle might be expected to favour influential interest groups. I compare these to a range of developments in jurisdictional doctrine in the common law world. I develop an argument that the data support a case of a substantial similarity in the law on jurisdiction that would be endorsed by a broad measure of social welfare and a contractarian justice theory, and show why this should be unsurprising from a theoretical perspective. I then explore the limits on this convergence thesis.