The Statutist Trap and Subject-Matter Jurisdiction

Author: Hook, Maria

Date: 2017

Publisher: Taylor and Francis

Type: Journal article

Link to this item using this URL: http://hdl.handle.net/10523/8938

University of Otago

Abstract

Common law courts frequently rely on statutory interpretation to determine the cross-border effect of legislation. When faced with a statutory claim that has foreign elements, courts seek to determine the territorial scope of the statute as a matter of Parliamentary intent, even if it is clear that Parliament did not give any thought to the matter. In an article published in this journal in 2012, Christopher Bisping argued that “statutism” — the idea that statutory interpretation should determine whether a statute applies to foreign facts — is inconsistent with established principles of choice of law. The purpose of this paper is to demonstrate that, in addition to cutting across principles of choice of law, a statutist approach has the potential to obscure fundamental questions of subject-matter jurisdiction. In particular, statutism can lead to conflation of subject-matter jurisdiction and choice of law, and it impedes the development of coherent principles of subject-matter jurisdiction.

Subjects: Subject-Matter Jurisdiction, Choice of Law, Lex Fori, Territoriality, Presumption Against Extra-Territoriality, Statutory Interpretation, Right of Direct Action, Statutory Charge

Citation: ["Hook, M “The statutist trap and subject-matter jurisdiction” (2017) 14 Journal of Private International Law 435-462."]