Transnational Law Outline

Professor Melissa Durkee, Transnational Law, Spring 2017
 
 
INTRODUCTION
 
The transnational legal system is highly decentralized and only loosely coordinated. There is no centralized ‘‘transnational government’’ that oversees the system’s parts.
 
Three sets of questions
What are the applicable rules? Do national laws, international laws, or private rules apply?
What transnational dispute resolution methods are available and most appropriate? National courts? How do service of process and discovery work? When are international courts available? Mediation or arbitration?
If the other party does not voluntarily comply with a dispute resolution outcome, how might that outcome be enforced?
Transnational law= all law which regulates actions or events that transcend national frontiers; governs transnational activity and disputes arising out of international activity
Transnational legal system
National legal systems
International legal systems
Private ordering
Confusing, often in conflict
More than one nation may claim to govern the same transnational activity
National law may be inconsistent with international law
Some individuals/businesses may prefer to govern their behavior not according to a particular nation's law but rather according to contractually agreed upon rules that may or may not be consistent
Civil Law vs. Common Law
Differences around history, sources, and role of the judge
Rome vs. England
Legislation/codes vs. rules from court decisions
But not black and white
Judge has leading role vs. attorneys
International law= the law made among nations by treaty, through custom, or in the form of general principles common to the world's major legal systems
Applying foreign law
US courts presumed competent
Expert testimony relied on heavily
Contract terms, choice of law clauses
Chevron Ecuador
In 1993, residents of Lago Agrio region of Amazon sued Texaco, Inc. in US District of NY alleging extensive environmental damage and personal injuries from oil extraction (dismissed, should be settled in Ecuador courts)
Chevron acquired Texaco
Plaintiffs won in Ecuador court; Chevron sought injunction against enforcement anywhere in the world (court order for Argentina, Brazil, and Canada)
Chevron initiated arbitration proceedings in 2009 pursuant to bilateral investment treaties: treaties between two nations that give each other's investors certain protections
Plaintiffs filed request in the Inter-American Commission on Human Rights in February 2012 (organ of Organization of American States)
 
NATIONAL LAW
 
What is a presumption?
A canon of construction that guides interpretation of an ambiguous statute.
 
Rebuttable Presumptions (Presumption=acceptance of a conclusion until it is shown to be false)
 
That Congress does not intend for a U.S. statute to apply extraterritorially
That Congress does not intend for a statute to violate international law
 
 
Presumption Against Extraterritoriality
 
Justice Scalia: “the presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the case.” (Morrison)
 
When does this presumption apply?
A federal statute would apply if the conduct occurred in the U.S. 

The question is whether to apply the statute to conduct that occurred outside of the U.S. 

Not when the question is whether to apply private law (torts, contracts, property law).
Assuming the presumption applies, what does it require? 

Court must determine whether Congress clearly intended that the statute apply extraterritorially. 

If yes: presumption rebutted. If no: statute applies only to domestic conduct. 

 
Aramco, Morrison:
• Presumption not rebutted if language:
is ambiguous;
– does not speak directly to the question presented here; – is boilerplate.
• Additional considerations:
Did Congress mention foreign nations; make any provision for foreign proceedings or enforcement; address conflicts of laws?
• Applying the statute: Which extraterritorial facts are relevant?
Look at the focus of the statute.
• E.g., focus of Title VII of the Civil Rights Act was domestic employment (Aramco); and focus of Exchange Act is location of purchase and sale of securities (Morrison).
 
 
Policy Reasons for Presumption Against Extraterritoriality
 
“[P]rotects against unintended clashes between our laws and those of other nations which could result in international discord.” Aramco 

Reflects the “common sense notion that that Congress generally legislates with domestic concerns in mind.” Smith v. U.S., 507 U.S. 197 (1993) 

Provides “a stable background against which 
Congress can legislate with predictable effects.” Morrison 

 
 
Presumption Against Violating International Law
 
Presumption: A federal statute should not be interpreted extraterritorially in such a way as to violate international law, unless congress’s intent is clear.
 
When does this presumption apply?
Just like presumption against extraterritoriality:
Federal statute would apply if the conduct occurred in the U.S. 

The question is whether to apply the statute to conduct that occurred outside of the U.S. 

Especially consider cases in which the presumption against extraterritoriality has already been rebutted. 
Assuming the presumption applies, what does it require? 

Court must determine whether applying the statute in this way violates international law. 

If yes: ask whether congressional intent to supersede international law is clear
–  Intent clear? Go ahead and violate international law. 

–  Intent not clear? Don’t do it. 

 
Charming Betsy Canon
“an act of congress ought never to be construed to violate the law of nations if any other possible construction remains”
 
What might violate international law?
Consider any relevant international law.
In particular, consider customary international limitations on jurisdiction to prescribe: (5 circumstances below)
 
Customary international law: a rule of CIL exists when a sufficiently large number of nations follow that rule out of a sense of legal obligation Rules relevant here govern “prescriptive jurisdiction”: authority of a nation “to make its law applicable to the activities, relations, or status of persons, or the interests of persons in things, whether by legislation, by executive act or order, by administrative rule or regulation, or by determination of a court”
 
Prescriptive Jurisdiction
 
 Five Sources of Subject-Matter Jurisdiction in International law: 
 
1) Territorial (& effects test): The person place or thing is within the State’s territory. It has long been recognized as a basis for jurisdiction.  Conduct is outside territory, but substantial effects within. (e.g., price fixing).
 
2) Nationality: The person is a national of the state, no matter wher