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24 Duke J. Comp. & Int'l L. 1 (2013-2014)

handle is hein.journals/djcil24 and id is 1 raw text is: DIRECT EFFECT JURISDICTION UNDER THE FOREIGN SOVEREIGN IMMUNITIES ACT: SEARCHING FOR AN INTEGRATED APPROACH JOHN C. BALZANO* Recent decisions by the United States Supreme Court as to the international reach of American antitrust and securities statutes have engendered significant debate about the appropriate extraterritorial application offederal law. Such debates have also slowly come to include some mention of the right application of state law beyond US. boundaries through long-arm statutes. The arguments of different commentators and jurists universally support careful consideration of the implications of prescribing a rule of US. law to foreign conduct, absent an appropriate basis in international law and practice. The time is now right, therefore, to consider how these debates affect a statute that combines federal and state law and potentially prescribes both of those sources of law abroad in the same action: The Foreign Sovereign Immunities Act (FSIA). This Article discusses the direct effect provision under FSIA's commercial activities exception. It argues that the jurisprudence interpreting the appropriate reach of that provision has become confusing and unworkable, and advocates a reinterpretation in light of the ongoing larger discussion about extraterritoriality in the federal and state law contexts. TABLE OF CONTENTS INTRODUCTION ................................................. 2 I. RELEVANT ASPECTS OF FSIA ..........................6 II. THE DEBATE OVER EXTRATERRITORIALITY................... 9 A. General Principles under International Law ......... . .................... 9 Copyright C 2013 by John C. Balzano. * Visiting Assistant Professor, Boston University School of Law (2012-June 2013). I would like to thank Alexandra Roberts, Orly Rachmilovitz, Jeffrey Cohen, Robert Sloane, Tamar Frankel, Lilian Faulhauber, Daniela Caruso, David Walker, James Fleming, William P. Marshall, Wendy Gordon, Anna Di Robilant, and David Seipp and others who expressed helpful views at the presentation of this paper at Boston University School of Law. The views expressed herein are my own and do not represent those of any of the organizations with which I am or was affiliated. I

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