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

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.