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Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law

Published online by Cambridge University Press:  27 February 2017

Harold G. Maier
Harold G. Maier*
Affiliation:
Vanderbilt University
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Extract

Historically, public international law and private international law have been treated as two different legal systems that function more or less independently. Public international law regulates activity among human beings operating in groups called, nation-states, while private international law regulates the activities of smaller subgroups or of individuals as they interact with each other. Since the public international legal system coordinates the interaction of collective human interests through decentralized mechanisms and private international law coordinates the interaction of individual or subgroup interests primarily through centralized mechanisms, these coordinating functions are usually carried out in different forums, each appropriate to the task. The differences between the processes by which sanctions for violation of community norms are applied in the two systems and the differences in the nature of the units making up the communities that establish those norms tend to obscure the fact that both the public and the private international systems coordinate human behavior, and that thus the values that inform both systems must necessarily be the same.

Type
Research Article
Information
American Journal of International Law , Volume 76 , Issue 2 , April 1982 , pp. 280 - 320
Copyright
Copyright © American Society of International Law 1982

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References

1 I would like to emphasize the importance of separating international law and comity for the purpose of analysis of the pending legislation. Comity is discretionary; international law is obligatory. Comity enjoins forbearance in the exercise of legitimate jurisdiction when another sovereign also has legitimate jurisdiction under international law. However, comity does not come into play at all unless a nation has a legitimate basis in international law for asserting jurisdiction in the first place.

Energy Antimonopoly Act of 1979 (Part 1): Hearings Before the Senate Comm. on the Judiciary, 96th Cong., 1st Sess. 779 (1979) (statement of Monroe Leigh). See Lorenzen, , Story’s Commentaries on the Conflict–of–Laws—One Hundred Years Later, 48 Harv. L. Rev. 15, 35–36 (1934)Google Scholar. For a discussion of this proposition in a broader context, see Nussbaum, , Rise and Decline of the Law-of-Nations Doctrine in the Conflict of Laws, 42 Colum. L. Rev. 191 (1942)Google Scholar.

2 Comity is a recognition which one nation extends within its own territory to the legislative, executive, or judicial acts of another. It is not a rule of law, but one of practice, covenience, and expediency. Although more than mere courtesy and accommodation, comity does not achieve the focus of an imperative or obligation. Rather, it is a nation’s expression of understanding which demonstrates due regard both to international duty and convenience and to the rights of persons protected by its own laws.

Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. 1971).

3 Cf. Paulsen, & Sovern, , “Public Policy” in the Conflict of Laws, 56 Colum. L. Rev. 969, 1016 (1956)CrossRefGoogle Scholar.

4 Although the term “comity” has ancient roots, its earliest uses in Roman jurisprudence did not reflect those territorial principles that support the modern rules of conflict of laws. See Wolfe, M., Private International Law 19–20 (2d ed. 1950)Google Scholar; Yntema, , The Comity Doctrine, 65 Mich. L. Rev. 9 (1966)CrossRefGoogle Scholar; Lorenzen, , Huber’s de Conflictu Legum, 13 Ill . L. Rev. 375, 375–77 (1918)Google Scholar. The use of the term to describe a theory for accommodating conflicting legal policies of to titorial sovereigns was developed by scholars in 17th-century Holland to resolve conflicts between the laws of the various Dutch provinces. Davies, , The Influence of Huber’s de Conflictu Legum on English Private International Law, 18 Brit. Y.B. Intl L. 49, 52 (1937)Google Scholar; Yntema, supra, at 20; Lorenzen, supra, at 16–17.

5 Yntema, supra note 4, at 26. Huber’s approach should be distinguished from that of the statutists who reasoned a priori from a conceptual classification of statutes as real, personal, or mixed to determine the extent of their extraterritorial recognition. Id. at 21–25.

6 Translated in Davies, supra note 4, at 56–67. A translation of the entire De conflictu legum is found in an appendix to this article. Id. at 64–78.

7 Id. at 59. It has been argued that Huber’s theory included the requirement that the forum recognize a customary jus gentium from which private international law principles could be derived. Yntema, supra note 4, at 28–30. Whether or not he viewed international custom as the authoritative source of private international law rules, it is clear that Huber’s basic principles represent a recognition that mutual tolerance and limited claim are essential functional components of a dynamic international economic and political order in a territorially divided world. In this sense, Huber’s attitude parallels that found in section 403, Tentative Draft No. 2, Restatement of Foreign Relations Law (Revised), discussed infra at page 300. See generally Lowenfeld, , Public Law in the International Arena: Conflict of Laws, International Law, and Some Suggestions for Their Interaction, 163 Recueil Des Cours 315 (1979 II)Google Scholar.

8 Nygh, , The Territorial Origins of English Law, 2 Tasmanian L. Rev. 28, 40 (1968)Google Scholar. Lord Mansfield endorsed Huber’s version of the comity doctrine in Robinson v. Bland, 2 Bur. 1077, 1 W.B1. 234, 259 (1760), a case involving the enforcement of a foreign gambling contract, and in Holman v. Johnson, (1775) 1 Cowp. 341, a case concerning the applicability of British customs laws to a French sales contract. Mansfield’s view stressed the needs of commercial practicality and justice to the parties in international commerce. Id. at 343.

9 See Nadelmann, , Joseph Story’s Contribution to American Conflicts Law: A Comment, 5 Am. J. Legis. Hist. 230 (1961)CrossRefGoogle Scholar.

10 Story, J., Commentaries on the Conflict of Laws (Bigelow ed. 1883)Google Scholar [hereinafter cited as Story’s Commentaries].

11 Id. at 32.

12 Id. at section 7, 33–38.

13 See text at note 73 infra.

14 The tendency to treat comity as a political concept rather than as a tool for legal analysis is attributable to the opinion in Hilton v. Guyot, 159 U.S. 113 (1895), where the Supreme Court refused to enforce a French judgment because France would review a U.S. judgment de novo. The reciprocity principle adopted by the court was based on a political concept of comity that differed significantly from the concept of reciprocal interaction found in Huber’s comity principle and in Story’s second use of the term. The reciprocity principle as applied in Hilton can be logically justified only as requiring a political determination designed to discourage specified conduct by a foreign government. See Maier, , The Bases and Range of Federal Common Law in Private International Matters, 5 Vand. J. Transnat’l L. 133, 155–56 (1971)Google Scholar.

15 Professor Kurt Nadelmann called this “the internationalist approach with a safety valve.” Nadelmann, , Introduction to Yntema, supra note 4, 65 Mich. L. Rev. 1, 6 n.42 (1966)Google Scholar.

16 Story’s Commentaries, at 33. This pragmatic position should be distinguished from another view of comity, held by many continental writers, that rules of private international law were dictated by a. jus gentium whose content could be derived by analysis of first principles. See Yntema, supra note 4, at 21–25. It was this continental view of comity that was attacked by Samuel Livermore some 6 years before Story’s treatise was published. S. Livermore, Dissertations on the Questions Which Arise from the Contrariety of the Positive Law of Different States and Nations (1828). Although Livermore argued in support of the statutist classifications of laws as real, personal, and mixed to guide choice of law, he, like Story, also endorsed the pragmatic necessity of developing choice-of-law principles that would serve the interests of effective international commercial and social interaction. Id. at 28.

17 That this was Story’s intention was made clear by the fact that his entire treatise is based on the opinions and results in many conflict-of-laws cases, as well as on a survey of the writings of the civilian and common law scholars in the field, not a priori reasoning. Nadelmann indicates that Story mentions more than five hundred judicial decisions from common law courts in the first edition of the Commentaries, Nadelmann, supra note 9, at 237; and approximately seven hundred in the second edition, Nadelmann, , Bicentennial Observations on the Second Edition of Joseph Story’s Commentaries on the Conflict of Laws, 28 Am. J. Comp. L. 67 (1980)CrossRefGoogle Scholar. Much of the treatise is devoted to stating specific choice-of-law rules for application to various types of legal subject matter.

Story’s use of the term “comity” to characterize the legal relationship between private international decision making and the needs of the international system was not understood by continental scholars. The pragmatic elements of this use of the comity doctrine together with Story’s emphasis on the freedom of the forum to create choice-of-law policy and his occasional references to the need for international courtesy (see, e.g., Story’s Commentaries, section 618), suggested to some continental commentators that Story was advocating resort to a political rather than a legal approach to the resolution of private international law problems. Lorenzen, supra note 1, at 35.

18 3 J. H. Beale, A Treatise on the Conflict of Laws 1965 (1935). Beale did not, however, believe that the forum was controlled in its choice of law by public international law. See 1 id., §5.1. Rather, restraints on the forum’s freedom to create choice-of-law principles were grounded in Beale’s strict Austinian conception of the nature of law. Cheatham, , American Theories of Conflict of Laws: Their Role and Utility, 58 Harv. L. Rev. 361, 379–85 (1944)Google Scholar. Beale treated comity merely as descriptive of the duty to give effect to vested rights and rejected the attempt in Hilton v. Guyot, 159 U.S. 113 (1895), to equate comity with reciprocity. 1 J . H. Beale, supra, §6.1.

19 Beale recognized a vague relationship between the two bodies of law but made no effort to articulate the nature and extent of their interaction. On the question of extraterritorial jurisdiction, he wrote:

[F]or surely it is not a proper function of the Law of Nations to determine the punishability of an individual for an act done abroad: On the other hand, it is pointed out that the interests concerned are solely individual, and should be determined by that branch of international law which concerns individual rights.

1 J. H. Beale, supra note 18, §1.9, at 43.

20 Cook, , The Logical and Legal Bases of the Conflict of Laws (1924)CrossRefGoogle Scholar, reprinted in AALS, Selected Readings on Conflict of Laws 71 (1956).

21 Restatement (Second) of Conflict of Laws (1971) [hereinafter cited as Restatement (Second) of Conflicts].

22 Restatement (Second) of Foreign Relations Law of The United States (1965) [hereinafter cited as Restatement (Second) of Foreign Relations Law].

23 In many respects, the Restatement (Second) of Conflicts is a refined and modernized version of the functionally important elements of Story’s comity doctrine. The format and approach taken by the Restatement directly parallel the organization and approach of Story’s Commentaries. Like Story and the legal theory of comity, the Restatement in its recommendations depends almost exclusively upon territorial relationships for initial guidance in choice-of-law decisions. See Reese, , American Trends in Private International Law: Academic and Judicial Manipulation of Choice of Law Rules in Tort Cases, 33 Vand. L. Rev. 717, 733–34 (1980)Google Scholar. Like the Commentaries, the Restatement begins with a statement of the more general values to be served in choice-of-law cases and then sets forth specific rules that reflect these values, drawn in large measure from the results in decided cases. The thrust of Story’s second category of comity considerations is revitalized in the elements of section 6 of the Restatement (Second) of Conflict of Laws.

24 Additional factors listed are the relevant policies of the forum; the relevant policies of other concerned states and the relative interests of those states in the determination of particular issues; the protection of justified expectations; the basic policies underlying the particular field of law; certainty, predictability, and uniformity of result; and ease in the determination and application of the law to be applied.

25 Restatement (Second) of Conflicts §6, Comment c.

26 Id., §6, Comment d.

27 Maier, , Coordination of Laws in a National Federal State: An Analysis of the Writings of Elliott Evans Cheatham, 26 Vand. L. Rev. 209, 242–47 (1973)Google Scholar

28 Reese, , Legislative Jurisdiction, 78 Colum. L. Rev. 1587, 1593 (1978)CrossRefGoogle Scholar.

29 In one sense, of course, all decisions about whether the forum’s law will govern a given event or specified parties is a choice-of-law decision. The principal distinction is that in nonregulatory choice-of-law cases the court will apply the law of a foreign jurisdiction if it finds that that jurisdiction has a greater interest in the transaction than the forum. In the regulatory cases, if the forum’s local law is inapplicable, the case is dismissed. Rarely will the court attempt to apply the regulatory system of a foreign nation.

30 See, e.g., Lowenfeld, supra note 7, at 328–29; Mannington Mills v. Congoleum Corp., 595 F.2d 1287, 1297–98 (3d Cir. 1979); United States v. Vetco, Inc., 644 F.2d 1324, 1330 (9th Cir. 1981).

31 There is a technical distinction between governmental interests analysis, generally associated with the late Professor Brainerd Currie, and other types of analysis designed to indicate which rule should govern a given issue. Generally, however, all modern choice-of-law methods seek to identify the state whose law is most appropriately applied, and that determination always involves answering the question, which body politic ought to influence most strongly the result in the case? In this sense, then, all modern choice-of-law methods involve some attempt to identify and weigh the interests of various political subdivisions having contact with a transaction or occurrence. For a description of the various approaches, see Reese, supra note 23; Westbrook, , A Survey and Evaluation of Competing Choice-of-Law Theories: The Case for Eclecticism, 40 Mo. L. Rev. 407 (1972)Google Scholar.

32 See, e.g., Order of United Commercial Travelers v. Wolfe, 331 U.S. 586 (1947). See also Allstate Ins. Co. v. Hague, 449 U.S. 302, 321 (1981) (Stevens, J., concurring).

33 See, e.g., Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959); Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429 (1978).

34 Home Insurance Co. v. Dick, 281 U.S. 397 (1930).

35 Wells v. Simonds Abrasive Co., 345 U.S. 514 (1953); Carroll v. Lanza, 349 U.S. 408 (1955).

36 Milwaukee County v. M. E. White Co., 296 U.S. 268 (1935).

37 The term “national federalism” is used to suggest the overriding importance of maintaining a viable national state while preserving values of local self-government appropriate to the political philosophy that supports the constitutional allocations of power. See generally Maier, supra note 27.

38 This same assumption operates in most transnational Choice-of-Law cases but without even the limited protection afforded to the system in interstate cases by the full faith and credit clause. See, e.g., Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963); Intercontinental Hotels Corp. (Puerto Rico) v. Golden, 15 N.Y.2d 9, 254 N.Y.S.2d 527, 203 N.E.2d 210 (1964).

39 See, e.g., Conklin v. Horner, 38 Wis.2d 468, 157 N.W.2d 579, 584 (1968); Clark v. Clark, 107 N.H. 351, 354, 222 A.2d 205, 209 (1966); R. Leflar, American Conflicts Law 208 (3d ed. 1977).

40 See Cheatham, , Conflict of Law: Some Developments and Some Questions, 25 Ark. L. Rev. 9, 9–11 (1971)Google Scholar; Cheatham, & Maier, , Private International Law and its Sources, 22 Vand. L. Rev. 27, 97–98 (1968)Google Scholar; Cheatham, , Some Developments in Conflict of Laws, 17 id. at 193 (1963)Google Scholar.

As one writer puts it, identification of the policies supporting a rule of law “focuses not on the motive or intentions of the legislature but on community purposes or goals as disclosed by the problems that evoked the rule, its function in the network of existing community arrangements, and the beneficial consequences to the community of its implementation.” Ratner, , Choice of Law: Interest Analysis and Cost Contribution, 47 S. Cal. L. Rev. 817, 819 (1974)Google Scholar.

41 See Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963); Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99 (1954); Neumeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 286 N.E.2d 454 (1972).

42 The Restatement (Second) of Conflicts, section 10 points out that there may be special factors in an international case that indicate a different result from that which would be reached in a purely domestic decision.

43 Courts in the United States have been quite successful in avoiding conscious or unconscious parochialism. See Cheatham & Maier, supra note 40, at 42–43; Du, Bois, The Significance in Conflict of Laws of the Distinction between Interstate and International Transactions, 17 Minn. L. Rev. 361, 380 (1932)Google Scholar.

44 Private rights to recover are provided in the United States, for example, under both the securities statutes and regulations and the antitrust laws to encourage persons to serve as surrogates for government prosecutors by bringing private suits for violations.

45 Hacking, , The Increasing Extraterritorial Impact of U.S. Laws: A Cause for Concern Amongst Friends of America, 1 Nw. J. Int’l L. & Bus. 1 (1979)Google Scholar. The most recent flap over the extraterritorial application of U.S. antitrust laws is described in Gordon, E., Extraterritorial Application of United States Economic Laws: Britain Draws the Line, 14 Int’l Law. 151 (1980)Google Scholar.

46 See Steiner, H. & Vagts, D., Transnational Legal Problems 932–34 (1976)Google Scholar.

47 Restatement (Second) of Conflicts §9.

48 See, e.g., id., §§145, 149, 154, 188.

49 Id., §9, Comments f and h refer to both the nationality and territoriality principles. See also §53, Comments d and e. These references are virtually the only recognition in the conflicts Restatement that international system needs are a relevant consideration in determining the territorial scope of U.S. regulatory legislation.

The scholarly and judicial efforts devoted to demonstrating that public international law does not dictate the content of choice-of-law rules (see, e.g., Nussbaum, , Rise and Decline of the Law of Nations Doctrine in the Conflict of Laws, 42 Colum. L. Rev. 197–99 (1942)Google Scholar) may have obscured the relationship between the principles of choice of law and the international legal limitations on the assertion of jurisdiction in regulatory cases. It would be quite appropriate for the conflicts Restatement to recognize that no decision in private international law can be made without having an impact on the structure of the international legal climate and to state principles that would take that impact into account. This could clearly be done without implying that choice-of-law rules are dictated by the consent of nations. See McDougal, , The Impact of International Law upon National Law: A Policy Oriented Perspective, in M. McDougal et al., Studies in World Public Order 157, 185 (1960)Google Scholar.

50 The Over-the-Top, 5 F.2d 838 (D. Conn. 1925); Restatement (Second) of Conflicts §6(1) and Comment b; Cheatham, & Reese, , Choice of Applicable Law, 52 Colum. L. Rev. 959, 961 (1952)CrossRefGoogle Scholar.

51 Restatement (Second) of Conflicts §9, Comment b.

52 Restatement (Second) of Foreign Relations Law §3, Comment j .

53 Restatement (Second) of Conflicts §6(2), Comment c.

54 The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1802).

55 Restatement (Second) of Foreign Relations Law, Preface, at xii.

56 Id., §2(2).

57 Id., §6.

58 Id., §7. This distinction between jurisdiction to enforce and jurisdiction to prescribe is not entirely satisfactory because the categories sometimes overlap. For example, if a court issues a subpoena duces tecum to a corporate party, ordering that corporation to require its wholly owned foreign subsidiary to produce documents whose production would violate the laws of the country in which the papers are located, it is not clear whether the issuance of the subpoena is an exercise of jurisdiction to enforce or jurisdiction to prescribe. Some U.S. courts have distinguished the issuance of the subpoena from the issuance of a contempt order to enforce it, holding that although the subpoena may be a valid exercise of jurisdiction to prescribe a rule of conduct for the domestic corporate party, issuance of a contempt citation against that party for its foreign subsidiary’s failure to produce the documents amounts to enforcing the subpoena in a foreign country and therefore violates international jurisdictional rules. See, e.g., First Nat’l City Bank v. Internal Revenue Service, 271 F.2d 616 (2d Cir. 1959); In re Application of Chase Manhattan Bank, 297 F.2d 611 (2d Cir. 1962). Other courts have held that the power to issue the subpoena carries with it the power to issue the contempt citation and that the latter action is controlled solely by judicial discretion, not by international jurisdictional requirements. See, e.g., State of Ohio v. Arthur Anderson & Co., 570 F.2d 1370 (10th Cir. 1978); In re Westinghouse Electric Corp. Uranium Contracts Litigation, 563 F.2d 992 (10th Cir. 1977). At least one court has held that issuance of the subpoena is the exercise of enforcement jurisdiction but that jurisdiction to enforce the subpoena depends upon jurisdiction to prescribe the underlying cause of action in connection with which the evidence is sought. See FTC v. Compagnie de Saint–Gobain-Pont-à-Mousson, 636 F.2d 1300 (D.C. Cir. 1980).

59 Restatement (Second) of Foreign Relations Law §8. Although cases involving jurisdiction to regulate normally arise in the context of an attempt to enforce those regulations, even bare prescription may raise international legal issues. In some instances the prescription of a rule without jurisdiction to do so may adversely affect foreign states by forcing their nationals to consider the rule’s potential applicability when planning their activities. Id., Comment b; Mann, , The Doctrine of Jurisdiction in International Law, 111 Recueil des Cours 1, 38 (1964 I)Google Scholar.

60 Restatement (Second) of Foreign Relations Law §9.

61 Id., §9(2)(b).

62 This distinction between jurisdiction to enforce and jurisdiction to prescribe is familiar in U.S. interstate conflict-of-laws cases. The fact that a state can apply its own rule without violating due process does not mean that some other state must necessarily give that rule full faith and credit in its own courts. Conversely, the fact that a state may apply the rule from some other jurisdiction without violating due process does not mean that the full faith and credit clause requires the application of that. rule. Cf. Kirgis, , The Roles of Due Process and Full Faith and Credit in Choice of Law, 52 Cornell L. Rev. 94 (1976)Google Scholar.

63 Under the Restatement, a state always has jurisdiction to regulate the conduct of its own nationals wherever that conduct may occur. Restatement (Second) of Foreign Relations Law §30(a). Furthermore, a state may regulate all conduct that takes place within its borders and exercise jurisdiction over any conduct outside its territory that causes substantial and directly foreseeable effects within its borders if the conduct and effects are generally recognized by other nations as elements of a crime or tort. Id., §§17–18. The Restatement also adopts the protective principle that permits a nation to exercise jurisdiction over events occurring abroad to protect “its security as a state” if the conduct in question is generally regarded as a crime by the world community. Id., §33. Since actions abroad that have effects within the United States are covered by sections 17 and 18 and all nationals are subject to U.S. jurisdiction under section 30(a), the protective principle appears to have relevance only when foreigners act outside the United States with intent to injure U.S. security interests but without achieving any effect within this country. These principles are virtually identical to those adopted in the Harvard Research in International Law, 29 AJIL, Supp. 435, 445 (1935), which, in turn, relied heavily on the opinion in the S.S. Lotus case, [1927] PCIJ, ser. A., No. 10.

64 Restatement (Second) of Foreign Relations Law §37.

65 Id., §39.

66 Metzger, , The Restatement of Foreign Relations Law of the United States: Bases and Conflicts of Jurisdiction, 41 N.Y.U. L. Rev. 7, 18–20 (1966)Google Scholar.

67 Unlike the situation in U.S. municipal law, the reasonableness concept inherent in section 40 is not relevant to whether prescriptive or enforcement jurisdiction exists ab initio. Professor Willis Reese suggests that in determining whether a state in the United States can exercise either judicial or legislative jurisdiction, the general criteria of fairness to the parties and the relationship of the assertion of jurisdiction to the federal system’s needs should apply. See Reese, supra note 28. Reese argues that two sets of general policies should be considered to serve systemic needs. One set of policies requires essential fairness to the parties. Among the considerations that give rise to fairness issues are whether the parties have relied on a specific rule of law or legal system in creating their relationships or planning their actions and whether the parties had legitimate expectations that certain functional results would flow from their relationships. Legislative jurisdiction should not exist when its exercise would defeat either of these expectations. The second set of policies addresses whether jurisdiction is consistent with the needs of the system’s political units. The most important systemic value, Reese argues, is that a state should not “without good reason apply its law in disregard of the substantial interests of some other state or states.” Id. at 1608. In any event, a state usually has legislative jurisdiction if its own interests would be served by the application of its law. See also Reese, , Limitations on Extraterritorial Application of Law, 4 Dalhousie L. Rev. 589 (1978)Google Scholar.

Under section 40, these same elements are considered in determining whether already existing jurisdiction should be exercised, not whether the decision maker has jurisdiction to prescribe or enforce the rule in question. If one examines section 40 of the Restatement in light of Professor Reese’s categories, it becomes clear that subsection (b) and, to some degree, subsection (c) primarily reflect considerations that Reese would characterize as issues of fairness to the parties. Subsections (a), (c), and (d) clearly fall within the category of systemic considerations. The states’ territorial concerns and the nationality of the persons involved reflect state interests that are directly related to assumptions of sovereign authority and responsibility inherent in the international system. Enforcement within the territory of another state raises considerations directly related to the international system’s structure. Subsection (e) reflects practical considerations. There is no need for a state to attempt an enforcement that would not accomplish its policy goals, regardless of its jurisdictional authority. Other methods of achieving the same result may well be more reasonable. See Restatement (Second) of Foreign Relations Law §40, Comment e, at 119. Cf. Lowenfeld, supra note 7, at 326–27.

68 Restatement (Second) of Foreign Relations Law §40, Reporter’s Note 2, at 120–21.

69 Cf. Restatement (Second) of Conflicts §9, Comment b, distinguishing the court’s authority to apply a given legal rule from the question whether the legislature intended that the rule apply to the persons or events in the case.

70 Restatement (Second) of Foreign Relations Law §40, Reporter’s Note 2, at 120–21.

71 See Williams, G., International Law and the Controversy Concerning the Word “Law”, 22 Brit. Y.B. Int’l L. 146, 153 (1945)Google Scholar.

72 See Reese, supra note 23, at 733.

73 549 F.2d 597 (9th Cir. 1976).

74 Id. at 613. The court drew up a list of several elements to be considered to determine the reasonableness of exercising jurisdiction. Id. at 614, esp. n.31.

75 595 F.2d 1287 (3d Cir. 1979).

76 Id. at 1296. The court expanded the list of contacts and political considerations adopted in Timberlane. Id. at 1298.

77 617 F.2d 1248 (7th Cir. 1980).

78 494 F.Supp. 1161 (E.D. Pa. 1980).

79 Note, , Foreign Nondisclosure Laws and Domestic Discovery Orders in Antitrust Litigation, 88 Yale L.J. 612 (1979)Google Scholar; Note, , Discovery of Documents Located Abroad in U.S. Antitrust Litigation: Recent Developments in the Law Concerning the Foreign Illegality Excuse for Non-Production, 14 Va. J. Int’l L. 747 (1974)Google Scholar. Pre-Restatement cases are discussed in Note, , Limitations on the Federal Judicial Power to Compel Acts Violating Foreign Law, 63 Colum. L. Rev. 1441 (1963)Google Scholar.

80 In United States v. First Nat’l City Bank & William T. Loveland, 396 F.2d 287 (2d Cir. 1968), and State of Ohio v. Arthur Andersen, 570 F.2d 1370 (10th Cir. 1978), there was no showing that any foreign criminal prohibition would in fact be violated. In United States v. Field, 532 F.2d 404 (5th Cir. 1976), the evidence sought was oral testimony about foreign banking records from a witness already before the court.

81 FTC v. Compagnie de Saint-Gobain-Pont-à-Mousson, 636 F.2d 1300 (D.C. Cir. 1980).

82 Westinghouse Electric Corp. v. Rio Algom Ltd., 480 F.Supp. 1138, 1148 (N.D. Ill. 1979).

83 644 F.2d 1324 (9th Cir. 1981), as amended Oct. 22, 1981, cert, denied, 50 U.S.L.W. 3465 (1981).

84 553 F.2d 996 (5th Cir. 1977).

85 16 U.S.C. §1362(13) (1976).

86 553 F.2d at 1002.

87 Section 40 has greater relevance to attempts to extend registration requirements and other regulatory measures to foreign broker dealers or foreign issuers, but there is a paucity of case law on this subject. For a review of the issues involved and an examination of the relationship to the antifraud cases, see Hacker, & Rotunda, , The Extraterritorial Regulation of Foreign Business Under the U.S. Securities Laws, 59 N.C. L. Rev. 643 (1981)Google Scholar. See also Report on Proposed SEC Rules, 21 Rec. N.Y.C. B.A. 240 (1966).

88 Schoenbaum v. Firstbrook, 405 F.2d 200 (2d Cir. 1968), on rehearing, 405 F.2d 215 (2d Cir. 1968).

89 SEC v. Kasser, 548 F.2d 109 (3d Cir. 1977); Bersch v. Drexel Firestone, 519 F.2d 974 (2d Cir. 1975); Travis v. Anthes Imperial Ltd., 437 F.2d 515 (8th Cir. 1973); Leaseco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326 (2d Cir. 1972).

90 Des Brisay v. Goldfield Corp., 549 F.2d 133 (9th Cir. 1977); Bersch v. Drexel Firestone, 519 F.2d 974 (2d Cir. 1975).

91 Continental Grain (Australia) v. Pacific Oilseeds, Inc., 592 F.2d 409 (8th Cir. 1979); United States v. Cook, 573 F.2d 281 (5th Cir. 1978); SEC. v. Kasser, 548 F.2d 109 (3d Cir. 1977).

92 Continental Grain (Australia) v. Pacific Oilseeds, Inc., 592 F.2d 409 (8th Cir. 1979).

93 Bersch v. Drexel Firestone, 519 F.2d 974 (2d Cir. 1975).

94 SEC v. Kasser, 548 F.2d 109 (3d Cir. 1977); Bersch v. Drexel Firestone, 519 F.2d 974 (2d Cir. 1975).

95 Restatement of Foreign Relations Law of the United States (Revised), Tent. Draft No. 2 (1981) [hereinafter cited as Tent. Draft No. 2]. This draft is summarized in 75 AJIL 987 (1981).

96 Id., ch. 1, Jurisdiction, Introductory Note, at 89–93.

97 Id., §403, Reporter’s Note 10.

98 Mcdougal, M., Lasswell, H., & Vlasic, I., Law and Public Order in Space 748 (1963)Google Scholar.

99 Tent. Draft No. 2, §403, Comment b.

100 Reese, supra note 23, at 733–34.

101 See, e.g., Tent. Draft No. 2, §403, Reporter’s Notes 5 and 6.

102 See McDougal, supra note 49, at 209.

103 See McDougal, , The Hydrogen Bomb Tests and the International Law of the Sea, 49 AJIL 356, 358 (1955)CrossRefGoogle Scholar.

104 345 U.S. 571 (1953).

105 Id. at 577; see Windward Shipping v. American Radio Ass’n, 415 U.S. 104 (1973).

106 345 U.S. at 582 (emphasis added).

107 Ibid.

108 Id. at 583–92. The Court’s suggestion that it arrived at its decision by adding up relevant contacts seems to be purely makeweight. See id. at 592. Such a rationale does not comport with the thrust of the bulk of the opinion and would ignore the very policies that Justice Jackson emphasizes in the opinion’s earlier portions.

109 Id. at 593.

110 Id. at 592.

111 See, e.g., McCulloch v. Sociedad National de Marineros, 372 U.S. 10, 19 n.9 (1963).

112 358 U.S. 354 (1959).

113 Id. at 383 (emphasis added).

114 Compare Currie, , The Silver Oar and All That, 27 U. Chi. L. Rev. 1, 74 (1959)Google Scholar.

115 358 U.S. at 384 (emphasis added).

116 Ibid.

117 The Lauritzen rationale was substantially perverted in Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306 (1970), where the Supreme Court, in an opinion by Justice Douglas, weighed contacts to find that a Greek seaman injured in the port of New Orleans on board a Greek flag vessel owned by a Greek corporation could recover under the Jones Act because the corporation’s controlling shareholder was a United States domiciliary and the ship made regular runs between Greece and the United States. The Court’s reasoning in Rhoditis does not weaken the validity of the Lauritzen rationale for application in the regulatory cases. The majority in Rhoditis was clearly concerned with effectuating the compensatory policies of the Jones Act. It made no effort to analyze the potential effect of the choice-of-law decision on the international maritime system. The significant contacts analysis from Rhoditis was adopted in Antypas v. Cia. Maritima San Basilio, S.A., 541 F.2d 307 (2d Cir. 1976), also a Jones Act case.

118 148 F.2d 416 (2d Cir. 1945).

119 Id. at 443.

120 Ibid.

121 Id. at 443–44.

122 353 U.S. 138 (1957).

123 372 U.S. 10 (1963).

124 Id. at 16–17.

125 iId. at 21.

126 Ibid. McCulloch was decisive in Incres Steamship Co. v. International Maritime Workers Union, 372 U.S. 24 (1963), a similar case decided the same day.

127 372 U.S. at 19.

128 415 U.S. 104 (1974).

129 Id. at 112–13 (emphasis added).

130 Id. at 113 n.13.

131 Cf. text at note 109.

132 Republic of Mexico v. Hoffman, 324 U.S. 30 (1945); Ex parte Peru, 318 U.S. 578 (1943); Maier, , Sovereign Immunity and Act of State: Correlative or Conflicting Policies?, 35 U. Cin. L. Rev. 556 (1966)Google Scholar.

133 Letter from Acting Legal Adviser Jack B. Tate to Acting Attorney General Philip B. Perlman, May 19, 1952, 26 Dep’t State Bull. 984 (1952).

134 Ibid.

135 See National City Bank v. Republic of China, 348 U.S. 356 (1955).

136 Victory Transport Inc. v. Comisaria General, 336 F.2d 354, 360 (2d Cir. 1964), cert, denied, 381 U.S. 934 (1965).

137 Section 1602 of the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§1330, 1602–1611, attempts to regularize the process for determining immunity and to eliminate ad hoc political determinations by the State Department in which immunity issues were resolved on a case-by-case basis. Under the Act, immunity is determined by the judiciary. The substance of this congressional mandate was prepared by the Department of State. The procedures and rules laid down in the Act are to operate until a multinational agreement can create an international system reflecting the comparative interests of world community members in a single codified accommodation. Letter of Transmittal from Secretary of State William Rogers and Attorney General Richard Kleindienst to the Speaker of the House of Representatives, Jan. 16, 1973 (copy in author’s files).

138 See text at note 5 supra.

139 376 U.S. 398 (1963).

140 Id. at 421.

141 Id. at 423.

142 Ibid.

143 Id. at 428.

144 Id. at 430–33.

145 Id. at 433.

146 Id. at 437.

147 Id. at 438.

148 Id. at 447 (White, J., dissenting).

149 Id. at 459 (White, J., dissenting).

150 425 U.S. 682 (1976).

151 Id. at 703–05.

152 Id. at 725–28. The Department of State in an amicus brief had supported a commercial act exception to the act of state doctrine similar to the commercial act exception in the Tate letter for sovereign immunity cases. See also Letter from Monroe Leigh, Legal Adviser, to the Solicitor General, Nov. 26, 1975, id. at 706–11.

153 407 U.S. 1 (1971).

154 Id. at 2.

155 Id. at 8–9.

156 Id. at 20–24 (Douglas, J., dissenting).

157 46 U.S.C. §185.

158 417 U.S. 506 (1974); see Maier, , The Three Faces of Zapata: Maritime Law, Federal Common Law, Federal Courts Law, 6 Vand. J. Transnat’l L. 387, 390–97 (1973)Google Scholar.

159 417 U.S. at 508 n.1.

160 48 Stat. 881 (1934), as amended, 15 U.S.C.A. §§78a–78hh.

161 17 C.F.R. §240.10b–5.

162 346 U.S. 427 (1953).

163 417 U.S. at 516–17.

164 Id. at 517 n .11. Agreements to arbitrate will probably not be given effect to prevent private actions in U.S. courts under the antitrust laws. See, e.g., Applied Digital Technology v. Continental Casualty Co., 576 F.2d 116 (7th Cir. 1978); Hunt v. Mobil Oil Corp., 410 F.Supp. 10 (S.D.N.Y. 1975), aff’d, 550 F.2d 58 (2d Cir. 1976), cert, denied, 434 U.S. 984 (1977).

165 A von, Mehren, Choice of Law and the Problem of Justice, 41 L. & Contemp. Prob. 27, 28 (1977)Google Scholar.

166 Collins, , Traffic in the Traffickers: Extradition and the Controlled Substances Import and Export Act of 1970, 83 Yale L.J. 706, 722–23 (1974)Google Scholar.

167 See Maier, supra note 27, at 246–47.

168 Tent. Draft No. 2, ch. I, Introductory Note, at 88.

169 See, e.g., Akehurst, , Jurisdiction in International Law, 46 Brit. Y.B. Int’l L. 145, 185–86 (1973)Google Scholar.

170 See, e.g., Westinghouse Electric Corp. v. Rio Algom, 480 F.Supp. 1138, 1148 (N.D. Ill. 1979), discussed in text at note 82.

171 See, e.g., United States v. Vetco, 644 F.2d 1324, 1333 (9th Cir. 1981), discussed in text at note 83.

172 Compare Lowenfeld, supra note 7, at 329.

173 Cf. Tent. Draft No. 2, §403, Reporter’s Note 6; R. Falk, The Role of Domestic Courts in the International Legal Order 36 (1964); Ongman, , “Be No Longer a Chaos”: Constructing a Normative Theory of the Sherman Act’s Extraterritorial Jurisdictional Scope, 71 Nw. L. Rev. 733, 761–62 (1977)Google Scholar; 35 Ali, Proc. 433 (1958) (comments by Sir Hartley Shawcross).

174 See Maier, supra note 27, at 252–56.

175 Lowenfeld, supra note 7, at 329.

176 Professor Lowenfeld specifically includes system needs in his list of elements to be considered in making transnational jurisdictional decisions. See id. at 328–29.

177 See Jessup, P., Transnational Law 5 (1956)Google Scholar.

178 Huber, U., De conflictu legum, translated in Davies, supra note 4, at 59 Google Scholar.