The Rise of Extraterritorial Regulation

by William S. Dodge

Most of the discussion so far has been about the constitutional parts of Kal’s book, which is appropriate given its title. But the part I found most fascinating has nothing to do with the Constitution. In Chapter 4, Kal tries to explain why the United States began aggressively to apply its regulatory statutes extraterritorially after World War II and not before. He makes a number of important points. First, it was not simply a matter of more transborder effects because of economic interdependence. The global economy was more integrated in 1909 when the Supreme Court decided American Banana than in 1945 when the Second Circuit decided Alcoa. Kal identifies a number of other factors that explain the timing, including the rise of the regulatory state (you need regulations before you can apply them extraterritorially), the decline of formalism in legal thought, and a post-war order in which legal conflict did not lead to military conflict.

I would put more emphasis than Kal does on changes in legal thought, particularly the effect of changes in the conflict of laws, which justified departures from territoriality to judicial minds. Kal downplays the impact of American conflicts law, stating that it “simply reflected prevailing international legal concepts rather than the reverse.” (p. 100). This may be true for the nineteenth and early twentieth centuries, when the Supreme Court had a tendency to adopt and even constitutionalize international concepts of jurisdiction. But conflicts thinking remained an important influence on extraterritoriality from Alcoa to Timberlane, even as American conflicts parted ways with international law. Timberlane certainly does not illustrate the effect of international law on American conflicts—if anything, it illustrates the reverse. A decade ago, I tried to trace the impact of conflicts thinking on extraterritoriality, which those who are interested can find here.

While Kal does a good job of explaining why extraterritorial regulation based on effects did not develop earlier, he is less explicit on why it was initially only the United States that asserted it. American hegemony is not the answer. In the post-war world, the United States would have been no more inclined to go to war with Britain over an issue of extraterritorial regulation than Britain was inclined to go to war with the United States. The answer, I think, lies in a point that Kal makes at several other points in the book (pp. 95, 113-14, 229) but not in this context, the presence of foreign assets in the United States. The ability of any nation to apply its law extraterritorially depends critically on rules of personal jurisdiction and the enforcement of judgments—what I have called the “structural rules of transnational law.” Smaller countries like the U.K. had less ability to enforce antitrust judgments against foreign companies, and so were less likely to regulate them in the first place.

Of course, the United States is no longer the only big country in the regulatory game. For many years the EU has been enforcing its competition law extraterritorially, and China has blocked or conditioned three mergers involving foreign firms in just the first year of its Antimonopoly Law’s operation. The future of extraterritorial regulation is likely to look quite different from the past.

http://opiniojuris.org/2009/07/28/the-rise-of-extraterritorial-regulation/

One Response

  1. I’ve enjoyed the exchanges so far. And congratulations Kal. As others have said, it’s a very nice book and I’ve enjoyed reading it.  Since few comments have been posted so far, I thought I would get things started and comment on Bill’s post.  Sorry for the comment’s length.

    Bill, I believe, as you do, that a connection exists between what you refer to as the structural rules of transnational law and the rise of extraterritorial regulation.  The presence of foreign assets in the United States certainly would seem to make it easier for non-U.S. extraterritorial regulation to have teeth.  But I’m skeptical that this explains the phenomenon as much as you suggest — particular the more recent rise of extraterritorial domestic regulation.  At the very least, it appears to beg the question of why the structural rules changed to make extraterritorial regulation more attractive.  And there are many instances where foreign assets exists in the United States and enforcement of judgments is possible, yet other nations have been reluctant to follow the U.S.-lead (at least, until recently) into extraterritorial regulation.  Canada is an example.  Conversely, the U.S. has pushed ahead with extraterritorial regulation even when the chances of judgment enforcement are small.

    I would not so quickly toss out then that hegemony, in some form, provides part of the answer.  I also tend to agree with what Peter and Dave suggest — although maybe for different reasons — that there exists a closer interplay between international law and extraterritorial domestic regulation. 

    To my mind, the rise of U.S. extraterritorial regulation seems in considerable part a result of internal domestic political struggles.  After the end of the Cold-War, the initial optimism for international law and its institutions (once used as a tool for combatting communism) faded and was replaced by greater pessimism.   In the 1990s, with the focus on globalization, international law — as a tool for the U.S. to solve global problems and to project influence — was often criticized by politicians, lawyers and activists as lacking.  The attack came from both the left and the right of the political spectrum.  Conservative-thinking scholars attacked international law (outside the neo-liberal, free trade rule context) as a threat to democratic sovereignty.  More progressive and liberal thinkers felt that international law was too slow and inadequate to provide remedies to pressing global problems. In the global governance debates, international law as traditionally conceived (state-state consent) was often viewed, and still viewed, as antiquated and outdated to solve the problems of a modern, globalized world.

    In this context, many groups that had previously focused on the international seemed to look inwards to find solutions to global challenges.  The rise of ATS claims and domestic climate change regulation (both extraterritorial in nature) seem to follow this path.  Unable to get traction or move as quickly as different interest groups would like with international treaties and state-to-state negotiation, human rights and environmental rights activists found it easier to exert influence from the sub-state level.  Under the Bush administration, for some groups, courts  were a more receptive forum to employ extraterritorial laws as a means of pressing progressive agendas than the executive branch.  In part this was because of the leaders in the human rights and environmental rights movement were trained in American law schools and felt more comfortable asserting claims in federal courts, rather than attempting to use international law.  Concepts from the legal realists, and the attack of formal, territorial rules — as you indicate and the changes that Kal details – created a fertile environment that made it easier for these groups to advance these kind of claims.

    Changes in other countries in part may follow a similar trend.  As non-state actors, human rights and environmental groups etc. gained greater influence on the international plane, they also were able to push domestic politics in certain countries.  The leaders of those groups often had strong American connections, with training in American law.  And again in that context, extraterritorial laws seemed — at least in the short term — to provide an easier way to reach goals, exert influence, and make for change.  Legitimacy became less as a problem, as the U.S. had regularly advanced the legitimacy of extraterritorial regulation.

    As you know, I’m somewhat critical of these developments.  And I don’t think this conflicts directly with what you say.  But I tend to think there’s more to it than just the changing structural rules and conflicts scholarship. The interplay between the domestic and the international might be more important in understanding the rise of extraterritoriality than has been emphasized.  Anyway, just a thought (or perhaps a ramble).  I’d be interested in yours and others reactions.   

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