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How to Criticize U.S. Extraterritorial Jurisdiction (Part II)
Written by Bill Dodge, the John D. Ayer Chair in Business Law and Martin Luther King Jr. Professor of Law at UC Davis School of Law.
There are better and worse ways to criticize U.S. extraterritorial jurisdiction. In Part I of this post, I discussed some shortcomings of a February 2023 report by China’s Ministry of Foreign Affairs, “The U.S. Willful Practice of Long-arm Jurisdiction and its Perils.” I pointed out that the report’s use of the phrase “long-arm jurisdiction” confuses extraterritorial jurisdiction with personal jurisdiction. I noted that China applies its own laws extraterritorially on the same bases that it criticizes the United States for using. I argued that the report ignores significant constraints that U.S. courts impose on the extraterritorial application of U.S. laws. And I suggested that China had chosen to emphasize weak examples of U.S. extraterritoriality, such as the bribery prosecution of Frédéric Pierucci, which was not even extraterritorial.
In this post, I suggest some better ways of criticizing U.S. extraterritorial jurisdiction. Specifically, I discuss three cases in which the extraterritorial application of U.S. law appears to violate customary international law rules on jurisdiction to prescribe: (1) the indictment of Huawei executive Wanzhou Meng; (2) the application of U.S. sanctions based solely on clearing dollar transactions through U.S. banks; and (3) the application of U.S. export controls to foreign companies abroad based on “Foreign Direct Product” Rules. The Ministry of Foreign Affairs report complains a lot about U.S. sanctions, but not about the kind of sanctions that most clearly violates international law. The report says much less about export controls and nothing about Meng’s indictment, which is odd given the tensions that both have caused between China and the United States. Read more
How to Criticize U.S. Extraterritorial Jurisdiction (Part I)
Written by Bill Dodge, the John D. Ayer Chair in Business Law and Martin Luther King Jr. Professor of Law at UC Davis School of Law.
China has been critical of U.S. extraterritorial jurisdiction. In February, China’s Ministry of Foreign Affairs issued a report entitled “The U.S. Willful Practice of Long-arm Jurisdiction and its Perils.” In the report, the Ministry complained about U.S. secondary sanctions, the discovery of evidence abroad, the Helms-Burton Act, the Foreign Corrupt Practices Act, the Global Magnitsky Human Rights Accountability Act, and the use of extraterritorial jurisdiction in criminal cases. The report claimed that U.S. extraterritorial jurisdiction has caused “severe harm … to the international political and economic order and the international rule of law.”
There are better and worse ways to criticize U.S. extraterritorial jurisdiction. The Ministry of Foreign Affairs report pursues some of the worse ways and neglects some better ones. In this post, I discuss a few of the report’s shortcoming. In a second post, I discuss stronger arguments that one could make against U.S. extraterritorial jurisdiction. Read more
International child abduction: navigating between private international law and children’s rights law
In the summer of 2023 Tine Van Hof defended her PhD on this topic at the University of Antwerp. The thesis will be published by Hart Publishing in the Studies in Private International Law series (expected in 2025). She has provided this short summary of her research.
When a child is abducted by one of their parents, the courts dealing with a return application must consider several legal instruments. First, they must take into account private international law instruments, specifically, the Hague Child Abduction Convention (1980) and the Brussels IIb Regulation (2019/1111). Second, they have to take into account children’s rights law instruments, including mainly the UN Convention on the Rights of the Child.
News
New Issue of Revue Critique de droit international privé (2024/2)
Written by Hadrien Pauchard (assistant researcher at Sciences Po Law School)
The second issue of the Revue Critique de droit international privé of 2024 was released a few weeks back. It contains a rich thematic dossier of seven articles and several case notes.
Under the direction of Prof. Sabine Corneloup (Université Paris-Panthéon-Assas), the doctrinal section of this issue is entirely devoted to an in-depth study of the latest French immigration law (Loi n° 2024-42 du 26 janvier 2024 pour contrôler l’immigration, améliorer l’intégration). In line with the Revue Critique’s recent policy, this doctrinal part has been made available in English on the editor’s website (for registered users and institutions). Against the backdrop of tightening migration controls at the global scale, this Act radically shifts administrative, procedural, and substantial aspects of the status of aliens in France.
Restituting Nazi-confiscated Art: A Restatement – Conference at the University of Bonn, 4 September 2024, 7 pm, and Talk at the New York University, 16 September 2024, 6 pm
Dear Friends and Colleagues,
Kindly allow us to invite you to two events that mark the completion of a research project carried out at the University of Bonn in respect to the Washington Principles on Nazi-Confiscated Art: The elaboration of a “Restatement of Restitution Rules for Nazi-Confiscated Art“. The formal Closing Event of the Project (proceedings in German language) will take place at the University of Bonn on 4 September 2024 (7:00 p.m.). An international presentation will follow and take place at New York University (NYU) on 16 September 2024 (6:00-8:30 p.m.), organised by the Center for Transnational Litigation, Arbitration and Commercial Law. Read more
Third Issue of the Lloyd’s Maritime and Commercial Law Quarterly for 2024
The third issue of the Lloyd’s Maritime and Commercial Law Quarterly was recently released. It contains the following article, case note and book reviews:
Adrian Briggs, “The Hague 2019 Convention”
The Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters 2019 will come into force for the United Kingdom on 1 July 2025. It will represent the principal means for the mutual recognition of judgments between the United Kingdom and the European Union (and any other states adopting it), and it is for this reason timely to examine the instrument which will replace, but certainly not replicate, Chapter III of the Brussels I Regulation. In discussing the structure and detail of the Convention, it is noticeable how far it falls short of the pre-existing regime.
Pau S Davies and Katherine Ratcliffe, “Anti-Arbitration Injunctions and Stays to Arbitration”
Andrew Tettenborn, “Book Review – The 2019 Hague Judgments Convention”
Adrian Briggs, “Book Review – Governing aw Risks in International Business Transactions”