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Academic Articles Awards > Cross-border Issues

Heisenberg’s Uncertainty Principle, Extraterritoriality and Comity

John DeQ Briggs and Daniel S. Bitton, The Sedona Conference Journal, Vol. 16, 2015

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Readers’ vote will close on February 15, 2016. Readers’ vote will allow you to nominate 1 article for each of the Awards, i.e., 10 Academic articles, 10 Business articles, and the best Soft Laws. The readers’ short-list of Academic and Business Articles will be communicated to the Board together with the 20 articles nominated by the Steering Committees. The Board will decide on the award-winning articles. Results will be announced at the Awards ceremony to take place in Washington DC on the eve of the ABA Antitrust Spring Meeting on April 5, 2016.

Few if any other legal systems in the world involve circumstances where powerful courts are called upon by private parties to exercise extraterritorial jurisdiction over foreign companies, individuals, and conduct. For many people, including even relatively sophisticated judges, lawyers, and academics, this proposition is seen as unremarkable. The bench and the bar in this country seem to accept the fact of this extraordinary power as if it were an obvious adjunct to “American Exceptionalism.” But in nearly all other countries, the exercise of extraterritorial jurisdiction is more rare, and nearly always at the behest of a government acting through its executive branch or its legislature. Foreign courts seem to show more restraint in the exercise of their power, which is in any case more limited than that enjoyed by American courts. This might be changing. As the People’s Republic of China (PRC), along with other powerful countries, observe the American legal system, “learn” from it, and mimic it to their advantage, American or other firms whose conduct outside China can be claimed to have some perceptible effect on Chinese commerce will come to be treated in much the same way that our system treats Asian and European companies. Indeed this is already happening.It is the purpose of this article to begin to explore this area and to try to come up with a workable understanding of what comity means or should mean or might mean and, in the end, to propose some possible courses of action that might bring to this issue the attention we believe it deserves, to rein in somewhat the largely uncabined extraterritorial jurisdiction of American courts, and to bring the exercise of judicial extraterritoriality more into line within international norms.

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