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21 Hastings Int'l & Comp. L. Rev. 177 (1997-1998)
The Five Bases of Extraterritorial Jurisdiction and the Failure of the Presumption against Extraterritoriality

handle is hein.journals/hasint21 and id is 195 raw text is: The Five Bases of Extraterritorial Jurisdiction and the Failure of the Presumption Against Extraterritoriality By WADE ESTEY* I. Introduction Jurisdiction may be divided into two general types, territorial and ex- traterritorial. Reasonable assertion of either form of jurisdiction involves the determination of whether the exercise of jurisdiction by a legislative, executive, administrative or judicial body is proper given the activity in question.1 There is little debate that a nation may exercise territorial jurisdiction over and thus promulgate laws regulating persons, things or transactions within the nation's territory2 There is controversy, however, as to when the assertion of extraterritorial jurisdiction comports with international law. This controversy has grown, particularly since World War IM It is clear the problems and conflicts of extraterritorial jurisdiction will con- tinue to expand as the economies of the world become increasingly inter- twined, and as governments attempt to extend the reach of their own laws to exert specific economic or political agendas. Although there is growing conflict abroad over the proper scope of extraterritorial jurisdiction, this conflict is belied by the fact that under U.S. law, the presumption against extraterritoriality assumes that all laws are prima facie territorial and should not be applied extraterritorially ab- sent a clear congressional mandate. The presumption against extraterrito- riality ignores whether extraterritorial application is proper and has gener- ally allocated the determination of extraterritorial application of a given statute to the courts through a series of exceptions to the presumption. This Note reviews various statutory and case law applications of ex- traterritorial jurisdiction and the inherent flaws of the current presumption against extraterritoriality in the United States, progressively revising the * Member, Class of 1998. B.A., American University of Paris, 1987. 1. RESTATEMENr (IRD) OF FOREIGN RELATIOOS LAW § 401 (1986). 2. ROGER AU:oRD, The Extraterritorial Application ofAntitrust Laws, 33 VA. L INT'LL. 1, 5-6 (1992). See also RES'rATEMENT (HIRD), supra note 1, at § 402 cmt. c.

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