International Litigation and the Quest for Reasonableness: Essays in Private International Law

By Andreas F. Lowenfeld | Go to book overview

2
The Limits of Jurisdiction to Prescribe

Having opened up so many subjects in the first chapter, I hope to explore them one by one in the succeeding chapters. I want to start with a search for the limits, if any, of national jurisdiction over transnational activity.


A. LOOKING FOR A NEUTRAL TERM

Everyone understands that a state has jurisdiction over activities carried out wholly within that state, i.e., where both conduct and effect are confined to the state that exercises jurisdiction to apply its law. All other exercise of jurisdiction seems to be referred to as extraterritorial jurisdiction, with more than a hint that 'extraterritorial' means 'exorbitant', if not 'illegal'. I think it is unfortunate that the term 'extraterritorial jurisdiction' has acquired this pejorative cast.

A great many activities involve conduct in more than one state; others involve conduct in one state and effect in another. To suggest that such activity may or should be carried out without reference to the law of any state is to suggest a kind of Antarctica,1 a no man's land greater than any of us would tolerate for a world inhabited by people, not penguins. Whether one thinks of export/import transactions, of shipping or aviation or telecommunications, of investment across frontiers, or of myriad other activities, it is inconceivable that law is simply excluded. Of course there will be overlap, inconsistent values, even direct conflict. It is our task to sort these out, to devise some rules, or at least guidelines, that can help in distinguishing between genuine and spurious interests, promote accommodation between public and private interests, and between interests of different states.

I believe the search for appropriate limits on the exercise of jurisdiction

____________________
1
See Antarctica Treaty signed at Washington, Dec. 1, 1959, 12. U.S.T. 794, T.I.A.S. 4780, 402 UNTS 71. For a recent decision of the U.S. Supreme Court, holding that the widow of a member of an American scientific expedition could not recover under the U.S. Federal Tort Claims Act for a fatal injury sustained by her husband in Antarctica on account of the U.S. government's alleged negligence, see Smith v. United States, 507 U.S. 197 ( 1993). The statute excluded claims 'arising in a foreign country', 28 U.S.C. § 2680(k), but though Antarctica is not a country, the Court held that the Tort Claims Act made the United States liable 'under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred', 28 U.S.C § 1346(b), and there is no such law.

-15-

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