Extraterritorial Effect Research Articles

The Swiss Legislation on Business and Human Rights: A Reform Needed Towards Harmonization with EU Law

AbstractThis article examines the disparities between the (existing and planned) business and human rights (BHR) legislations in Switzerland and the European Union (EU). More specifically, (i) the key differences that exist between the Swiss and EU BHR legislations are identified, and (ii) the proposed amendments to the Swiss BHR legislation to reach the desired harmonization with the EU framework are put forward. The Swiss BHR legislation, implemented in stages on 1 January 2021 and 1 January 2023, encompasses provisions related to ‘transparency on non-financial matters’, ‘transparency in raw material companies’, and ‘due diligence and transparency in relation to minerals and metals from conflict-affected areas and child labor’. The EU BHR legal framework, however, has undergone a major overhaul, with the recent adoption of the Corporate Sustainability Reporting Directive (CSRD) and the Directive on Corporate Sustainability Due Diligence (CSDDD) that introduce additional obligations. These EU regulations have (or will have) important extraterritorial effects, including on Swiss undertakings operating—directly or indirectly—in the EU. To prevent Swiss companies from being subject to a diverse array of regulations (with an increased risk of sanctions in case of non-compliance), a reform of the Swiss BHR legislation is needed to ensure harmonization with EU BHR legislation. This article also serves as a resource if full equivalence between them is sought.

Identifying and quantifying the extraterritorial effects of sanctions

We identify the extraterritorial effects of trade sanctions and provide quantitative evidence that they are strong. Additionally, we show that the estimates of the primary effects may be significantly biased if the aforementioned extraterritorial effects are not taken into account. In the context of the U.S. embargo on Cuba, we confirm the presence of large and significant extraterritorial effects that vary across Cuba’s trade partners – most non-sanctioning states trade less with Cuba while its economic allies and states in close proximity to it trade more. Moreover, our complementary general-equilibrium analysis establishes that the U.S.’s sanctions have inflicted large welfare losses on Cuba but very small effects on the rest of the world. As such, our analysis sheds new light on the significance (in terms of effectiveness) of extraterritorial sanctions and suggests that the motives for the opposition of third countries to such sanctions may be more political and legal than economic.

A comparative analysis: health data protection laws in Malaysia, Saudi Arabia and EU General Data Protection Regulation (GDPR)

Purpose General Data Protection Regulation (GDPR) of the European Union (EU) was passed to protect data privacy. Though the GDPR intended to address issues related to data privacy in the EU, it created an extra-territorial effect through Articles 3, 45 and 46. Extra-territorial effect refers to the application or the effect of local laws and regulations in another country. Lawmakers around the globe passed or intensified their efforts to pass laws to have personal data privacy covered so that they meet the adequacy requirement under Articles 45–46 of GDPR while providing comprehensive legislation locally. This study aims to analyze the Malaysian and Saudi Arabian legislation on health data privacy and their adequacy in meeting GDPR data privacy protection requirements. Design/methodology/approach The research used a systematic literature review, legal content analysis and comparative analysis to critically analyze the health data protection in Malaysia and Saudi Arabia in comparison with GDPR and to see the adequacy of health data protection that could meet the requirement of EU data transfer requirement. Findings The finding suggested that the private sector is better regulated in Malaysia than the public sector. Saudi Arabia has some general laws to cover health data privacy in both public and private sector organizations until the newly passed data protection law is implemented in 2024. The finding also suggested that the Personal Data Protection Act 2010 of Malaysia and the Personal Data Protection Law 2022 of Saudi Arabia could be considered “adequate” under GDPR. Originality/value The research would be able to identify the key principles that could identify the adequacy of the laws about health data in Malaysia and Saudi Arabia as there is a dearth of literature in this area. This will help to propose suggestions to improve the laws concerning health data protection so that various stakeholders can benefit from it.

Interplay of International Law and Cyberspace: State Sovereignty Violation, Extraterritorial Effects, and the Paradigm of Cyber Sovereignty

Abstract Information and communication technology (ICT) threats, involving malicious use of ICTs, pose substantial risks to global security and stability. These threats, emanating from State and non-State actors, endanger economic growth, societal well-being, and human safety. The existing international legal framework struggles to adequately confront these challenges, resulting in issues concerning State sovereignty, cyber-attacks on critical infrastructure, and the emergence of cyberspace sovereignty. Cyber-attacks targeting key infrastructure can undermine sovereignty by aiding another State’s territorial control. The enforcement of cyberspace legislation, whether regional or intra-State, can infringe upon other States’ sovereignty due to cross-border repercussions. Despite the presence of numerous international and regional regulations, enforcement remains lacking. The concept of cyberspace sovereignty has arisen with technological advancements, signifying a need for digital realm sovereignty. Yet, this form of sovereignty is narrower compared to territorial sovereignty. This article delves into the nexus between international law, State sovereignty, and ICT threats, along with the progression of cyberspace sovereignty. Through qualitative analysis of primary and secondary sources, it examines the application of existing international law in the digital landscape. By scrutinizing these intricacies, the paper endeavors to comprehend the contemporary challenges posed to international law and explore potential resolutions.

Consensus and Compulsion: The Extra-territorial Effect of Chinese Judicial and Specially-Invited Mediation in Common Law Countries

This article conducts exhaustive research on case law in major common law jurisdictions (Australia, Canada, Hong Kong, New Zealand, Singapore, the UK, and the US) regarding the recognition and enforcement of Chinese judicial mediation decisions (MTS). In contrast to the rich literature criticizing the systematic deficiency of Chinese judicial mediation where an adjudicator plays the dual role of mediator and judge in the same case and the consequent injustice to the parties, the deficiency is not an issue currently in recognition and enforcement of MTS in common law jurisdictions. Why is this so and what would be the future trend? Answering these questions, this article explores the recent expansion from judicial mediation to Specially-Invited Mediation at the people's courts in China and discusses whether the features of Specially-Invited Mediation impact the recognition and enforcement of MTS at the common law jurisdictions. It also addresses controversies on applicable law, challenges to the enforceability of civil liability clauses, debates on the finality of MTS, and recognition and enforcement of MTS under China's judicial assistance agreements, the Hague Choice-of-Court Convention, the Hague Judgments Convention, and the Singapore Mediation Convention.

基于国内法的域外效力对《外国公司问责法案》的检视

基于国内法的域外效力对《外国公司问责法案》的检视

Extraterritorial Effects of the Digital Markets Act - The ‘Elusive Long Arm’ of European Digital Regulation

Extraterritorial Effects of the Digital Markets Act - The ‘Elusive Long Arm’ of European Digital Regulation

Administrative Law without Borders

An international conference, entitled “Administrative Law without Borders” was organised by the Faculty of Law, University of Košice in the municipality Veľká Třňa, which is situated in the very heart of the Slovak area of the Tokaj wine region. The conference was organised under the research project “Extraterritorial effects of foreign administrative decisions in the European Union”, which has been supported by the Scientific Agency VEGA. The Košice-based research team, under the leadership of Associate Professor Radomír Jakab, has been dealing with various problems arising from mutual recognition of foreign administrative decisions for several years, and the conference, as organised on 19th and 20th October 2023 in the Tokaj Wine Region, represents one of the major academic meetings organised under the umbrella of this academic endeavour.

Simulation of the Spatial Flow of Wind Erosion Prevention Services in Arid Inland River Basins: A Case Study of Shiyang River Basin, NW China

Wind erosion is a key global environmental problem. As an important protective measure to provide services to the ecosystems in wind-eroded areas, the wind erosion prevention service is of great significance to the management of wind and sand hazards and ecological environment restoration in the wind-eroded areas and the neighboring areas. Taking the Shiyang River basin as the study area, the quality of supplies for wind erosion prevention services was estimated using the RWEQ model for the years 2005, 2010, 2015, and 2020; the trajectories of air masses at wind speeds higher than the sand-causing wind speeds were simulated based on the forward trajectory module of the HYSPLIT model for a 24 h period; the spatial simulation of the flow of wind erosion prevention services on a daily scale with Minqin Station as the sand source was carried out; and the beneficiary areas of wind erosion prevention services were identified. Based on the RWEQ model, the spatial patterns of potential wind erosion, actual wind erosion, and wind and sand stabilization services were obtained, and the supply areas were divided. From 2005 to 2020, the wind erosion prevention service flow in the Shiyang River basin was distributed along a northwest–southeast direction, with a radial decrease from the center to the periphery, and with an extremely strong extraterritorial effect. The amount of wind erosion in the basin has a variable downward tendency over time and a spatial distribution pattern of high in the north and low in the south. The area of higher sand fixation is distributed in the eastern oasis area and desert junction zone. The HYSPLIT model was used to simulate the transport paths of wind and sand within 24 h during 2005–2020, the transmission paths of the wind erosion prevention service flow were obtained to be 59–134, and the flows were 2.55 × 104–3.85 × 106 t, displaying a changing trend of first decreasing, then increasing, and then decreasing. Gansu Province, Ningxia Hui Autonomous Region, and Inner Mongolia Autonomous Region are the most important areas benefiting from the wind erosion prevention service flow in the Shiyang River basin. The wind erosion prevention service flows in the basin benefit 47 cities in 9 provinces.

Operating AI systems in the electricity sector under European’s AI Act – Insights on compliance costs, profitability frontiers and extraterritorial effects

Artificial intelligence (AI) brings great potential but also risks to the electricity industry. Following the EU's current regulatory proposal, the EU Regulation for Artificial Intelligence (AI Act), there will be direct, potentially adverse effects on companies of the electricity industry in Europe and beyond, as well as those active in the development of AI systems. In this paper, we develop a replicable framework for estimating compliance costs for different electricity market agents that will need to comply with the numerous requirements the AI Act imposes. The electricity systems of Austria, Greece and Switzerland are used as case-studies. We estimate annual, aggregated costs for electricity market agents ranging from less than one million to almost 200 million Euros per country, depending on compliance costs scenarios. Results suggest that a profit growth of 10% through AI utilization is needed to offset the highest added compliance cost of the AI Act on electricity market agents. Eventually, we further show how to assess the regional differences of these costs added to system operation, providing spatially disaggregated compliance costs estimates that consider the structural differences of the electricity industry within 26 Swiss cantons.

Challenges of sanctions lists screening and the impact of sanctions triggered by conflict zones

This paper emphasises the importance of sanctions policy and the role of different sanctions regimes triggered by various conflict zones today and in past decades. Based on examples of sanctions against Iraq, the Russian Federation and Venezuela, it highlights the difference between traditional embargo-style sanctions and recently introduced sectoral sanctions specifically targeting specific economic sectors. The paper also discusses coordination efforts between different sanctions regimes towards a global sanctions policy through the experience of the sanctions against the Russian Federation, as well as a new human rights sanctions regime. On the other hand, different political considerations can also lead to a clash of sanctions regimes. The paper discusses the impact of divergent international relations with Iran on sanctions when the United States withdrew from the Iran nuclear deal in 2018, reinstating secondary sanctions against Iran and causing legal and economic challenges for companies within the European Union (EU). Based on the recent preliminary ruling of the Court of Justice of the EU in the Bank Melli v Telekom Deutschland GmbH case, the paper points out the main considerations regarding the blocking statute activated by the EU in order to protect enterprises within the EU from the extraterritorial effect of foreign sanctions laws. In addition, the paper features the possible criminal as well as civil law liability for sanctions violations in different jurisdictions, highlighting some examples such as sanctions law offences by BNP Paribas. In the light of the possible penalties and financial losses caused for companies, the paper sets out a comprehensive decision matrix for experts and decision makers who want to evaluate whether another entity is sanctioned or has sanctioned ownership in a certain jurisdiction. Finally, it elaborates which technical add-on features a sanctions list screening software should possess in order to detect and manage sanctioned entities.

Forest protection in the EU's renewable energy directive and nature conservation legislation in light of the climate and biodiversity crisis – Identifying legal shortcomings and solutions

Forests ecosystems have an indispensable value for global climate and biodiversity protection. Alongside manifold other functions, forests ecosystems are important suppliers of raw materials in a post-fossil world. However, without effective legal restrictions, the increasing demand for woody biomass for energy production counteracts effective forest conservation in Europe and third countries. Against this background, this article assesses the governance effects of the EU Renewable Energy Directive and the EU nature conservation legislation, particularly the directives forming the Natura 2000 network, and the proposed Nature Restoration Law. To this end, a qualitative governance analysis is applied. In a first step the sustainability criteria of the Renewable Energy Directive are assessed regarding intra- and extraterritorial effects and their ability to avoid typical governance problems. Thereafter, to investigate achievable steering effects, EU nature conservation legislation is analysed. The legal analysis shows that typical governance problems reoccur, rendering the effectivity of the assessed command-and-control regulations too low to protect forest ecosystems in line with international climate and biodiversity targets. Only the proposed Nature Restoration Law might unfold a larger legal steering effect in the future, if a number of shortcomings are addressed. However, as typical governance problems can never be fully avoided, it remains necessary to reduce pressures on forest ecosystems by additional market-based instruments These instruments should be applied on European policy level to induce sufficiency in the private transport sector and in relation to consumption patterns for energy and food.

On the Public Morality Exception Rule Under the WTO: The Case of China-US Cultural Products Market Access as an Example

As the first of all exceptions in the GATT and GATS agreements, the public morals exception has been invoked by many countries in practice to justify their trade restrictive measures. The WTO rulings in the US Gaming case and the US-China Cultural Products Market Access case have made important contributions to the development of the public morality exception, but the concept of "public morality" and the extraterritorial effects of this rule have not been clarified. By considering these issues, the article proposes to adopt a "restricted domestic approach" to the definition and application of the public morality exception rule and to strictly limit the extraterritorial effects of the rule. This paper uses the research methods of comparative study and case study.

Extra-territoriality and the UK Insolvency Act 1986

AbstractThis paper considers whether UK corporate insolvency law and the UK Insolvency Act 1986 have extra-territorial effect post-Brexit, and whether – and to what extent – it is for the courts or the legislature to extend any extra-territorial effect. It does not deal with ‘inward recognition’, ie the recognition of foreign judgments and orders in the UK.Brexit has left something of a vacuum and provisions which might otherwise have applied extra-territorially, at least within the EU, may now have been deprived completely of extra-territorial effect. But all is not lost and Brexit here presents opportunities. There is room for clarifying that particular provisions which might otherwise have discriminated between EU application and application vis-à-vis the rest of the world can now be given a uniform global interpretation. Courts should, however, proceed incrementally in extending the extra-territorial scope of UK corporate insolvency law.A bolder reform would be to enact legislation that specifies the exact extent to which the UK Insolvency Act applies extra-territorially. Legislation obviously depends on parliamentary time and requires detailed drafting but also provides the opportunity for the UK to showcase that it remains at the forefront of international insolvency developments.

Greening consumer welfare

The present paper seeks to provide a global perspective on commercial greenwaching practices by first identifying its principal characteristics and forms. Then, it examines some prevalent issues susceptible to harm the greening consumer welfare, with views of suggesting solutions in support of a more global policy-making perspective which the latest European reforms on sustainability reflect. A holistic reform is proposed, stepping beyond the traditional framework and rationale of consumer protection rules. The paper advocates the need for some further consideration regarding the extraterritorial effect of EU law, as well as the introduction of costs and benefits redistribution, EU credits transfer and tolerance schemes into the circular economy. It also propones the enhancement of auto- regulation, transparency and reporting to strengthen the accountability of businesses in the context of their professional diligence.

The Digital Personal Data Protection Bill 2022 in Contrast with the EU General Data Protection Regulation: A Comparative Analysis

The European Union’s General Data Protection Regulation (GDPR) is considered to be the most comprehensive & strong privacy and data protection law in the world, which doesn’t only regulate within the territory of EU but also has an extraterritorial effect. GDPR has influenced privacy & data protection legislation of many nations. India is ready with the draft Digital Personal Data Protection Bill, 2022 (DPDP Bill) which is the latest in a series of draft legislations presented and removed since mid-2018. In this article we discuss the key differences between the GDPR & DPDP Bill by analysing the different approaches and methods prescribed in both the legislations to understand their scope & applicability, concerned parties, classification of personal data, legal basis for data processing, children’s rights, reporting breach, cross-border data transfer, penalties, etc. In conclusion, we can say that the GDPR is relatively more detailed in its instructions, whereas the DPDP Bill establishes certain fundamental concepts. The DPDP Bill offers a glimpse of hope for balancing the interests of data subjects while acknowledging the practical challenges that businesses may encounter.

Special regime for the recognition of decisions on financial penalties: complex analysis

The 'smoldering effect' of integration has inevitably resulted in widening the scope of matters in which the Member States of the European Union cooperate with each other. One such area is also the area of criminal matters, including the matter of mutual recognition on financial penalties. The aim of the article is systematically describe the specific regime for the recognition and enforcement of decisions on financial penalties under Council Framework Decision 2005/214/JHA. To this end, we analyze historical bases for an adoption of the regime on the territory of the European Communities; the current legal framework of the special regime at European Union level; the purpose and scope of Council Framework Decision 2005/214/JHA; the nature of the special regime; the transposed measure in the Slovak Republic and the nature of the decisions issued under Council Framework Decision 2005/214/JHA in terms of their extraterritorial effects. In particular, we performed textual analyses of relevant laws, legal literature and case-law of CJEU and ECtHR. Based on the synthesis of knowledge, the prospects for evolution of the special regime are assessed in conclusion.

Extraterritorial effects of territorial self-government decisions

As a result of expanding globalisation, states in various cases, in order to protect different interests and by reference to different principles, increasingly abandon rigid adherence to the principle of non-interference in the internal affairs of other States in the area of prescriptive jurisdiction and reciprocally accept the extension of the effects of individual legal acts issued by another State on their territory. In the conditions of the European Union, this acceptance concerns civil, criminal and administrative matters. It is individual administrative acts that are of particular interest from the point of view of the possibility of acquiring extraterritorial effects, because for several of tchem no specific recognition procedure is required. The aim of this paper is to characterize administrative acts with extraterritorial effects. Then to define the basic regimes for recognition and enforcement of administrative acts and to present examples of their application in the conditions of the Slovak Republic. Lastly to identify examples of administrative acts of local self-government authorities with extraterritorial effects and, following the examples thus identified, to present the regimes of their recognition and enforcement.

Fishery legislative reform towards Japan’s Fukushima nuclear wastewater discharge into the sea—A Chinese perspective

Japan’s discharge of Fukushima nuclear wastewater into the sea will have a profound and far-reaching impact on the marine environment and the fishing industry. Although Japan did not discharge nuclear wastewater directly into China’s waters, the wastewater flowed into the sea and infringed upon China’s rights and interests in pelagic fishing, as the nuclear-contaminated water is fundamentally different from discharges from normal nuclear plants. After the People’s Republic of China was founded, the Central Government and people’s governments of all levels started to manage fishery. However, the fishery management measures at this stage were primarily targeted the fishing industry itself, particularly the marine fishing industry. Several problems of China’s existing fishery legislation do not cope effectively with Japan’s nuclear sewage discharge. China’s fishery legislation keeps pace with the development pace of international laws, but it has not enacted specific regulations on certain types of marine pollution, such as nuclear sewage pollution. The Fisheries Law of the People’s Republic of China needs to produce an extraterritorial effect indirectly through other laws and regulations. China’s existing domestic laws only stipulate the rights of coastal countries. In this context, China’s fishery legislature should find a way forward, including changes in management standards; facilitating the formation of a complete extraterritorial effect by China’s fishery legislation a complete extraterritorial effect; improving supporting administrative legislation system; and facilitating the digitalization of fishing management to monitor Japan’s nuclear sewage discharge and its resultant harm, etc.

Legal Approach to International Cooperation on Cloud Storage of Personal Information

The development of information technology has accelerated the process of globalization and has also internationalized the issue of personal information storage and protection. Personal information can be stored in a cross-border cloud based on the development of Internet technology. However, the separation of the controlling place and the storage place of personal information has brought new challenges to the international regulation of personal information protection. For example, the conflict of legislation, law enforcement, judicial jurisdiction, and the exercise of cyber sovereignty between different countries, etc. In order to strengthen international cooperation on the safety of personal information, it is recommended to promote the sharing of cloud storage of personal information by establishing international self-regulatory organizations, constructing a safety line for the protection of the private rights of information, creating the principle of confirming interests before the usage of information and strengthening the mechanism of punitive compensation in malicious commercial use, etc. It is important to further improve domestic unified legislation and clarify the extraterritorial effects of domestic laws. And introduce data controller standards under the principle of international comity to break the inherent territorial jurisdiction principle. Besides, it is also very necessary to establish and improve the graded and classified management and early warning mechanism for the commercial use of personal information stored abroad. Finally, it is important to take an active part in international negotiations and strive for the right to make international rules on personal information protection.