AJIL Unbound

By: Devika Hovell | August 26, 2016 |

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Law abhors a vacuum. Lawyers (including international lawyers) have constructed their profession around the fiction that such a thing is impossible.[1] Where gaps emerge in a legal framework, lawyers face the task of filling it, compromised by the additional hurdle of having to pretend there was no gap in the first place.

The challenge has intensified with the ever-widening and deepening accountability gap that has accompanied the growth of global governance. In the period between H.G. Wells’ writing of The New World Order and the drafting of Security...

By: Carlos M. Vázquez and Ingrid Wuerth | August 09, 2016 |

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AJIL Unbound is pleased to publish this Agora on the U.S. Supreme Court’s June 2016 decision in RJR Nabisco v. European Community[1] concerning the extraterritorial applicability of the Racketeer Influenced and Corrupts Organizations Act (RICO).[2] The suit, which was brought by the European Community and twenty-six of its Member States, alleged that RJR Nabisco participated in a global money-laundering scheme in violation of RICO. The defendant argued that RICO does not apply extraterritorially and that the courts lacked subject matter jurisdiction because the...

By: Paul B. Stephan | August 09, 2016 |

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In RJR Nabisco v. European Community, the Court added an exclamation point to a long term trend in its jurisprudence.[1] It believes, this trend indicates, that private civil suits pose specific foreign relations issues, at least when the targets are foreign transactions and actors, to which the Court will respond by erecting barriers. To this general point the case adds an unsurprising, but still important codicil: These problems don’t go away when foreign states take advantage of the U.S. civil litigation system by acting as plaintiffs.

The Court...

By: William S. Dodge | August 09, 2016 |

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For the past twenty-five years, the presumption against extraterritoriality has been the Supreme Court’s principal tool for determining the geographic scope of federal statutes.[1] In 2010, Morrison v. National Australia Bank[2] used the presumption to decide the scope of Section 10(b) of the Securities Exchange Act, which prohibits securities fraud. Morrison approached the question in two steps. First, it looked for a “clear indication of extraterritoriality” to rebut the presumption and found none.[3] Second, it looked to see if application of the...

By: Anthony J. Colangelo | August 09, 2016 |

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The judge-made presumption against extraterritoriality has recently become a motley patchwork of eccentric and sometimes contradictory doctrines seemingly stitched together for one, and only one, mission: to deprive plaintiffs the right to sue in U.S. courts for harms suffered abroad. It lumbers along, blithely squashing precedent, principle, statutory text, and legislative intent—all to heed its abiding and single-minded obsession. The Supreme Court has so far mangled the scope of the Securities Exchange Act[1] and the Alien Tort Statute (ATS),[2] and, in RJR...

By: Pamela K. Bookman | August 09, 2016 |

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Last year in the Stanford Law Review, I described an emerging trend in U.S. courts: litigation isolationism.[1] Through developments in personal jurisdiction, forum non conveniens, international comity, and the presumption against extraterritoriality, I argued, courts have developed increasingly strong tools for avoiding transnational litigation. Decisions advancing litigation isolationism often fail to accomplish their stated goals—typically promoting separation of powers, avoiding interstate friction, and protecting defendants from the inconvenience of U.S....

By: Hannah L. Buxbaum | August 09, 2016 |

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Introduction

In RJR Nabisco, Inc. v. European Community[1], the Supreme Court addressed the extraterritorial application of U.S. law for the third time in six years—in this case examining the geographic scope of the Racketeer Influenced and Corrupt Organizations Act (RICO).[2] The decision consolidates and in certain respects expands upon the test for analyzing extraterritoriality issues that the Court had introduced in Morrison v. National Australia Bank[3] and refined in Kiobel v. Royal Dutch Petroleum.[4] It also provides further...

By: Carlos M. Vázquez | August 09, 2016 |

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In response to the 1991 Supreme Court decision resuscitating the presumption against extraterritoriality [hereinafter “PAE” or “presumption”], EEOC v. Arabian American Oil Co. (Aramco),[1] Larry Kramer described the presumption as an anachronism—a throwback to the strict territorialist approach to choice of law that prevailed before the mid-Twentieth Century but has been mostly abandoned since then.[2] The title of his scathing article, Vestiges of Beale, referred to Joseph Beale, the Harvard Law professor and reporter of the First Restatement...

By: Stephanie Francq | August 09, 2016 |

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The decision of the Supreme Court in RJR Nabisco v. European Community is the culmination of sixteen years of litigation, preceded by years of investigation. From a European perspective, the decision can only be read as a disappointment: “we” tried, “we” lost. But beyond the frustration with the outcome, this European take on the RJR decision will focus on two questions: (i) why did the European Community decide to bring proceedings in the United States in the first place; and (ii) what would happen in the reverse scenario, if a foreign public authority...

By: James Thuo Gathii, Henry J. Richardson, III, and Karen Knop | August 02, 2016 |

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This symposium on Third World Approaches to International Law (TWAIL) is the second to result from an open call.[1] In the first TWAIL symposium, contributors addressed international criminal law, international humanitarian law, and the use of force.[2] The three contributions to this symposium on “Theorizing TWAIL Activism” reflect conceptually on actors including contemporary third-world grassroots feminist activists, third-world international lawyers in the postwar decolonization period, and TWAIL scholars themselves.   

As Obiora Chinedu Okafor writes in the...