Myths and Misconceptions in Extraterritorial Torts

University of Toronto Law Journal (forthcoming)

Faculty of Laws University College London Law Research Paper No. 06/2024

36 Pages Posted: 28 Feb 2024

See all articles by Haim Abraham

Haim Abraham

University College London - Faculty of Laws

Date Written: February 28, 2024

Abstract

States’ ability to impose liability for extraterritorial torts is often structured to avoid an illegitimate assertion of authority by one state over another. However, the resulting liability regimes are inconsistent and difficult to justify. In this paper, I argue that limitations of liability in this context have been based on misconceptions about abuse of power. I employ instrumental and rights-based approaches to states’ authority to demarcate a coherent framework for states’ liability for extraterritorial torts. I show that courts can impose liability on their own state and officials for extraterritorial torts as authority is not exerted over a foreign state. Liability can also be imposed on foreign states for their extraterritorial torts through consent, a sufficient jurisdictional connection to the tort, or the establishment of universal jurisdiction by a breach of jus cogens norms. Lastly, I assert that punitive damages are generally an illegitimate form of exerting authority.

Keywords: Extraterritorial Torts, State Liability, Foreign Sovereign Immunity, Compensatory and Punitive Damages, Legal Theory

JEL Classification: K13, K33

Suggested Citation

Abraham, Haim, Myths and Misconceptions in Extraterritorial Torts (February 28, 2024). University of Toronto Law Journal (forthcoming), Faculty of Laws University College London Law Research Paper No. 06/2024, Available at SSRN: https://ssrn.com/abstract=4741760 or http://dx.doi.org/10.2139/ssrn.4741760

Haim Abraham (Contact Author)

University College London - Faculty of Laws ( email )

Bentham House
4-8 Endsleigh Gardens
London, WC1E OEG
United Kingdom

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