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50 Stan. J. Int'l L. 53 (2014)
The Extraterritoriality of EU Data Privacy Law - Its Theoretical Justification and Its Practical Effect on U.S. Businesses

handle is hein.journals/stanit50 and id is 61 raw text is: THE EXTRATERRITORIALITY OF EU DATA PRIVACY LAW - ITS THEORETICAL JUSTIFICATION AND ITS PRACTICAL EFFECT ON U.S. BUSINESSES DAN JERKER B. SVANTESSON Due to its extraterritorial effect, the European Union's trailblazing data privacy law has long been a major concern for U.S. businesses. With the proposal for a new EU data privacy framework with potential penalties of up to two percent of an offending enterprise's annual worldwide turnover, and with the European Union at the same time expanding the extraterritorial reach of its data privacy law, such concerns are justified indeed This Article examines the extraterritoriality of current and proposed EU data privacy law and analyses whether reference to international law can either strengthen or weaken those claims of extraterritoriality. In doing so, this Article demonstrates that international law lends support to the approach to extraterritoriality adopted in the EU data privacy law. At the same time, however, the examination of EU law highlights that, from the perspective of extraterritoriality, the current EU Directive is dysfunctional in its unnecessary complexity, and the proposed EU Regulation is in desperate need ofrefinement. Finally, the Article presents a doctrine of market sovereignty, established by reference to the effective reach of market destroying measures, as a mechanism for determining the extraterritorial reach of jurisdictional claims. Professor and Co-Director, Centre for Commercial Law, Faculty of Law, Bond University (Australia). Researcher, Swedish Law & Informatics Research Institute, Stockholm University (Sweden). Professor Svantesson is the recipient of an Australian Research Council Future Fellowship (project number FT120100583). The views expressed herein are those of the author and are not necessarily those of the Australian Research Council. The author wishes to thank the Stanford Journal of International Law's editorial team for their assistance, as well as Dr. Chris Kuner, Professor Graham Greenleaf, Professor Lee Bygrave, Emeritus Professor John Farrar, Assistant Professor Maureen Klar and Assistant Professor Danielle Ireland-Piper for their valuable feedback on an earlier draft, and conversations about extraterritoriality. 53 50 STAN. J. INT'L L. 53 (2014)

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