Extraterritorial Legislation Research Articles

Building Castles in the Air? The EU Blocking Regulation and the Protection of the Interests of Private Parties

AbstractThe EU Blocking Regulation intends to exclude the effects of extraterritorial legislation by third countries and, in particular, those of US economic sanctions, to protect the interests of economic actors in the EU. The goals of the Regulation—effective enforcement of EU law and the protection of the interests of EU economic actors—give rise to an enforcement paradox: a lack of enforcement by the Commission and the state authorities. The Bank Melli case not only demonstrates a shift in the enforcement of the Blocking Regulation to private parties but also sheds light anew on the doubts about its ability to protect private interests.

Restrictive Interpretation on "Serious Circumstances" in the "Crime of Infringing Trade Secrets"

The Criminal Law Amendment (11) changes the criminalization standard for the crime of infringing trade secrets from "causing significant losses" to "serious circumstances", but the essence of the boundary between crime and non-crime is still whether "significant losses have been caused". By comparing the four mainstream theories and representative extraterritorial legislation, this paper analyzes from four dimensions: implementation feasibility, economic benefits, scope of application, and application possibilities. The profit method is the profit method to calculate the optimal calculation method for measuring the amount of loss caused by trade secret infringement that best suits China's national conditions.

Reflections on Lowering the Minimum Age of Criminal Responsibility: With Comments to Article 1 of the Amendment to Criminal Law (XI)

The revision of the age of criminal responsibility is a major breakthrough in the Amendment to the Criminal Law of People's Republic of China (XI) (hereinafter referred to as the Amendment to Criminal Law (XI)). The first provision of the amendment reduces the minimum age of criminal responsibility from 14 to 12, which has aroused great controversy in the society and the academic circle. This move is a legislative response to the phenomenon of vicious violent crimes committed by minors and a reasonable consideration of the public's passionate public opinion, but there are still some problems worth discussing in its provisions. At present, there are many theoretical studies on the age of criminal responsibility in the academic circle. Based on this, this paper systematically sorts out the social background, theoretical viewpoints and extraterritorial legislation of the age of criminal responsibility, compares and analyzes the advantages and disadvantages of different theories, and refers to the legislative experience of countries with the minimum age of criminal responsibility under 14, and accordingly puts forward relevant legislative adjustment suggestions and supporting measures to improve them, expecting to promoting the continuous optimization of China's juvenile crime prevention and control system and reducing the juvenile crime rate.

The Legality of Unilateral Extra-territorial Sanctions under International Law

Abstract Following its withdrawal from the Joint Comprehensive Plan of Action, the USA re-imposed economic and financial sanctions against Iran. Its current unilateral sanctions regime against the country contains extra-territorial sanctions which prohibit non-US nationals and non-US companies from trading with and investing in Iran. Foreign legal and natural persons who do not comply with the US extra-territorial legislation are faced with a variety of limitations, including access restrictions, fines and penalties. Thereby they not only put pressure on operators worldwide but also interfere with the sovereign foreign policy choices of states and international organisations such as the European Union (EU) who support legitimate trade with Iran. Equally problematic are the extra-territorial sanctions contained in the US sanctions regime against Cuba. The article examines the lawfulness of unilateral extra-territorial sanctions as a form of targeted sanction under international law in the relationship between the sanctioning state and other sovereign international actors affected by the extra-territorial legislation in light of the customary law on jurisdiction, the law on sanctions as well as the principle of non-intervention. The relationship between the US and the EU and its Member States will be taken as an example. It will be shown that unilateral extra-territorial sanctions may amount to an abuse of rights in case they are functionally connected to primary sanctions that violate jus cogens norms or that undermine the UN Charter system, irrespective of the strength of the exercised economic pressure.

American Extraterritorial Legislation

Since the early 2000s, the United States’ different administrations of justice have been prosecuting foreign companies suspected of violating US laws on bribery of foreign public officials and of failing to respect embargoes and economic sanctions. Even if these violations take place outside US borders, the American prosecution authorities (including the Department of Justice, the Securities and Exchange Commission and the Office of Foreign Assets Control) consider themselves legitimate to intervene. European multinationals have been particularly sanctioned. For instance, in 2014, fines reached up to 9 billion dollars for the French bank BNP, which was accused of using dollars in its transactions with certain countries sanctioned by the US (mainly Iran, Cuba and Sudan). Punishing companies and hitting them in the wallet are not the only objectives of the American administration. The United States takes advantage of legal procedures against foreign companies to collect millions of bytes of data, sometimes including sensitive information on them as well as on their partners and markets. Facing this legal offensive, Europe is still struggling to provide responses to protect its companies.

The Commons, the Common Good and Extraterritoriality: Seeking Sustainable Global Justice through Corporate Responsibility

Despite their laudable intent, extraterritorial legal initiatives to promote corporate sustainability development have not been well received in practice, and are often seen as a window-dressing exercise. This article aims to conduct a conceptual and doctrinal analysis, offering a theoretical foundation that interprets corporate extraterritorial legislative attempts as legitimate in the context of globalisation, using the lens of “the commons” and “the common good”. We try to link the values and dimensions of “the commons” to the goals of corporate extraterritorial legislation, so that lawmaking attempts with extraterritorial reach will gain additional foundational support and achieve more effective and better controlled compliance. In particular, the article makes an original attempt to justify and develop a new notion, namely “the extraterritorial commons”. This notion is in harmony with, rather than contradicting, progressive legal attempts to address the mismatching and conflicting nature of the relationship between the traditional voluntarism of corporate extraterritorial responsibilities, particularly in relation to sustainability issues, and global trends towards more regulation in this area.

The International Organisation of Securities Commissions (IOSCO), Europe, Brexit, and Rethinking Cross-border Regulation: A Call for a World Finance Organisation

The need to promote cross-border regulation and cooperation between supervisors of financial markets has become acute ten years after the 2008 global financial crisis. This is due to a rise in extra-territorial legislation and cross-border access to foreign markets conditioned on “equivalence” and “deference” among jurisdictions. Brexit has made the issue more critical in Europe because the United Kingdom will rely on “equivalence” decisions on many aspects of its future cross-border financial relationships with the European Union. Equivalence decisions by the European Commission are based on a technical assessment but also include a political dimension which can punish or reward the other party. It is not just a European issue since the financial world will be more connected in the next twenty years and will need to rely even more on cross-border cooperation and equivalence. In addition, the amount of bilateral equivalence assessments and decisions could very quickly become unmanageable with dozens of jurisdictions dealing with hundreds of various regimes. The global financial architecture needs to be adapted, market fragmentation to be pre-empted, and international standards to become more granular. The International Organisation of Securities Commission (IOSCO), made up of all securities supervisors in the world, should play a leading role in cross-border regulation and deference. It is the interest of many Europeans countries, and not just the European Union, to be the driving force to strengthen IOSCO so that a more rule-based and cooperative system can prevail and prevent future market fragmentation. For this goal to be achieved, IOSCO should become a new treaty-based World Finance Organisation.

The compliance movement in russia: what is driving it?

The introduction of compliance management systems is becoming more and more important in Russian companies. Initially limited to anti-corruption compliance and driven by foreign extraterritorial legislation, corporate leaders are now considering the benefits of enhanced risk management systems. From a corporate law perspective, the driving force behind this is the business judgement rule. Corporate leaders should be encouraged to take reasonable entrepreneurial risks without fearing liability. Therefore, by adopting compliance and risk management systems corporate leaders will be able to exculpate themselves when business decisions go wrong and losses are suffered. But the question is who will be the driving force in the Russian corporate context: the executive director or the board of directors? This paper examines two strands of domestic compliance regulation: anti-corruption compliance and the 2014 Code of Corporate Governance. It shows that while there are grounds for the possibility that in Russia the executive directors will be the drivers of compliance, the greater likelihood is that the board of directors will be collectively responsible. Important incentives for the day-today management of the companies will therefore most likely be missed.

Preventive Anti-Corruption Measures in Public Procurement: Issues and Challenges

The lack of integrity and corruption affects human rights, has important implications on the market and represents an issue in Public Procurement. Non-transparent economic interests supported by lobbies may influence legislation, its implementation, the competition and finally the economic growth and competiveness of the market itself.One increasingly popular way for States to prevent bribery committed overseas is adopting measures with extraterritorial implications or to assert direct extraterritorial jurisdiction in specific instances. These measures may have local preferences implications.A community of values is growing in the wider context of transnational and international bodies such as OECD, UN, and single Member States, to promote a joint system against corruption, but still needs clear means of actions.How to ensure integrity, accountability and transparency of public authorities and economic operators across Countries?The paper investigates two different profiles linked to the same phenomena with a comparative approach. The legal boundaries of lobbying as joint to conflicts of interest and corruption, on one side; the effects of some extraterritorial legislation, such as the US and the UK anti-bribery models, on the other. It analyses the role of private and public preventive anti-corruption measures as a mean of action.

Sovereignty-Plus in the Era of Interdependence: Towards an International Convention on Combating Human Rights Violations by Transnational Corporations

This paper argues that the classical rules that restrain the exercise by States of their extraterritorial jurisdiction may have to be reinterpreted in the light of the growing interdependency between States, which results from increased trade and investment flows. The traditional understanding is that, when a State adopts regulations that seek to influence situations located outside its national territory, it competes with the sovereignty of the territorially competent State, and that such regulations therefore should only be allowed in the most exceptional circumstances, since they may run counter to the principle of sovereign equality of States. However, if the adoption by the State of origin of the investor of extra-territorial regulations in fact facilitates the role of the host State in regulating that investor, thus ensuring that the investment will contribute to human development and will benefit local communities, this enhances, rather than restricts, the exercise by the host State of its sovereignty. To the extent that it serves universal values, unilateral action may thus contribute to the achievement of the goals set by the international community: the regulation of transnational corporations becomes a global public good, to which each State should contribute in accordance with its ability.Against this background, this paper examines the question of the jurisdiction of States over the activities of transnational corporations. It argues that the duty of the host State to regulate corporations operating on its territory could be more easily discharged if home States of transnational corporations made a more principled use of extraterritorial regulation. These two sovereignties are not as much competing with each other than they are mutually supportive: the adoption of a new international instrument allocating responsibilities to control transnational corporations could codify in treaty form what is already, arguably, emerging customary international law. The paper also argues that, until a consensus emerges about the desirable division of tasks between the host State and the home State in controlling investors, the adoption by the home State of extraterritorial legislation addressed directly to the parent company, but imposing on that company to exercise control on its subsidiaries, may be the best route forward.

Extraterritoriality and Territorial Extension in EU Law

This paper examines the global reach of EU law in the context of current debates about the rise of the EU as a global regulatory power. Challenging recent claims to the contrary, its findings are that the enactment of extraterritorial legislation by the EU is extremely rare. Nevertheless, the EU makes frequent recourse to a legislative technique that I term territorial extension, in order to gain regulatory traction over activities that take place abroad. This technique not only leads to the EU governing transactions that are not centered upon the territory of the EU, but it also enables the EU to influence the nature and content of third country and international law. Nevertheless, it is inaccurate to say that the EU thereby seeks to export its own norms. EU legislation which engages in territorial extension is generally characterized by an international orientation revealing the EU to be engaged in action-forcing contingent unilateralism rather than the exportation of norms. The EU seeks to galvanize third country or global action to tackle transboundary problems and to pursue objectives that have been internationally agreed upon. The importance to the EU of this international orientation is clear from the criticisms that the EU has made of extraterritoriality and territorial extension in United States law.

International Child Sex Tourism: Enhancing the Legal Response in South East Asia

AbstractSouth East Asia has earned the dubious reputation of being the world's prime child sex tourism destination. While a number of commentators have analysed extra-territorial legislation in the home countries of travelling child sex off enders, this article assesses the laws in the South East Asian destination countries in order to stimulate debate and action on much-needed reform. Unfortunately, few provisions in national legislation specifically address child sex tourism as a distinct form of sexual exploitation. To enhance the legal response to this abhorrent crime, it is recommended that national legislation directly address child sex tourism. Further, given the transnational nature of the crime, the Association of South East Asian Nations (ASEAN) should urgently adopt a multinational approach that synchronises national legislation and complies with, or exceeds, the minimum standards prescribed by international law.

Regulating the electronic marketplace through extraterritorial legislation: Google and eBay in the line of fire of French judges

If the Internet is not the cause of the current normative crisis suffered by states, it is one of the best examples of the regulatory difficulties experienced by public authorities, whose legitimacy to regulate behaviour is seriously challenged. This said, it is an illusion to think that cyberspace is beyond the reach of states. Furthermore, the problem raised by the regulation of the Internet lies more in the fact that too many laws claim to be applicable rather than too little. Indeed, national tort laws have been used at the international level to frame conducts on the electronic marketplace, and in particular, the conduct of intermediaries such as Google or eBay. Through the study of French case law, this paper thus seeks to give an example of the danger of overregulation that is likely to appear in cyberspace owing to the application of extraterritorial legislation, especially when the application of national law amounts to intermediaries' liability.

No Hiding Place: Child Sex Tourism and the Role of Extraterritorial Legislation

No Hiding Place: Child Sex Tourism and the Role of Extraterritorial Legislation

No hiding place: child sex tourism and the role of extra-territorial legislation

* 1. Introduction * 2. Introducing the Cases * 3. Tracing the Street Children * 4. Buying Girls in Manila * 5. The Community Benefactor * 6. On the Holiday Island * 7. A Conflict of Interests * 8. Tangled Responsibilities * 9. The Violence of the 'Child-Lovers' * 10. Reign of Terror in Iloilo * 11. The Silence of the Authorities * 12. A Network of Corruption * 13. The Teacher and the Thai Boy * 14. Escape of a DAngerous Man * 15. A Culture Clash * 16. The Ambassador and the Street Boys * 17. Escape to Japan * 18. The Case of the United Kingdom * 19. Conclusion and Recommendations * 20. Some Reflections

Rex v. Neumann.

78Jurisdiction — Offence Committed Outside the Territory of the State — Colonial Parliaments — Legislative Competence — Power to Enact Extraterritorial Legislation — High Treason — Allegiance — Dual Allegiance — Enemy Alien in Armed Forces — Superior Allegiance — Change of Nationality in Wartime — Duty of Allegiance to Local State — Termination of Allegiance — Capture as Prisoner-of-War by Enemy Forces — Survival of Allegiance to Local State — Sovereignty — British Commonwealth of Nations — Position of Crown — Union of South Africa — Whether Possessing Sovereignty and Majestas in the Technical Sense — Right of State to Self-preservation — Law of Union of South Africa.

Co-operative Committee on Japanese Canadians v. Attorney-General for Canada.

International Law — Relation to Municipal Law — Interpretation of Orders in Council giving Power to Deport Nationals — Deprivation of Nationality.International Law and Municipal Law — Statutes — Interpretation of — Extra-territorial Legislation — Law of Canada.Jurisdiction — Territorial — Extra-territorial Effect of — Deportation — Whether Cause for Invalidity — Law of Canada.Naturalization — Revocation of — Law of Canada.Nationality — Loss of — Denaturalization — Naturalized Citizens of Canada of Japanese Race — Law of Canada.Nationality — Deprivation of — Deportation of Nationals — Deportation to Country not the Country of Origin-British Nationals “of Japanese Race” — Extra-territorial Effect of Deportation Order — International Law and Municipal Law — Interpretation of Orders-in-Council.Aliens — Deportation — Extra-territorial Effect of Deportation Order.British Commonwealth of Nations — Relationship between Case Legislatures at Westminster and in Dominions — Doctrine on Invalidity of Dominion Statutes for Repugnancy — Whether Applicable since Statute of Westminster to Regulations made under Authority of Prior Dominion Statutes — Colonial Laws Validity Act, 1865 (U.K.) — Deportation — Whether Exercisable against non-Aliens — Extra-territorial Effect of Legislation — Naturalization — Revocation of — International Law — Applicability in Construction of Municipal Legislation-Law of Canada — Deportation and Denaturalization of Canadian Nationals of Japanese Race.

Rex v. Offen.

British Dominions — Position of — Union of South Africa — Powers of Extraterritorial Legislation — British Dominions as Mandatories.53Mandates — “C” Mandates — Mandated Territory of South-West Africa — British Dominions as Mandatories — Power of Parliament of Union of South Africa to Legislate for Mandated Territory — British Dominions and Extraterritorial Legislation — Power of Union Parliament to Cede British Possession to Mandated Territory.