Extraterritoriality and Discovery
Current Legal Issues in International Commercial Litigation
Posted: 15 Jun 2003
This article examines doctrines governing extraterritorial jurisdiction and their evolution in response to the forces of globalization. These doctrines were shaped in this century first by the shift from private law to public power that attended the rise of the regulatory state, and then by a particular concern with the rise of American power. The emergence of a globalized economy poses a new set of challenges and temptations likely to require a rethinking of the fundamental bases of extraterritorial jurisdiction. This article does not undertake that task, but examines the current state of US law on extraterritorial jurisdiction and discovery with an eye to future trends. It proposes that a number of current judicial decisions are best analyzed not as definitive assertions of government power but rather as interim efforts to ascertain the nature and intensity of a foreign government s preferences. Further, it examines the temptation to use courts as tools of foreign policy, insisting on the need to distinguish between unilateral foreign policy objectives and cooperative or coordinated transnational legal solutions to global problems. Finally, it argues that globalization poses a problem of deciding when national actors can legitimately escape national regulatory obligations by moving offshore. Efforts to address this issue may portend a synthesis of the doctrinal tests applicable to ascertain the scope of regulatory jurisdiction with respect both to foreign entities acting in or with an effect on national territory and domestic entities acting abroad.
JEL Classification: K33
Suggested Citation: Suggested Citation