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

By Andreas F. Lowenfeld | Go to book overview

3
More on Jurisdiction to Prescribe: Of Effects and Balancing

The discussion in Chapter 2 of the Insurance Antitrust case before the U.S. Supreme Court may have left the reader in a somewhat dissatisfied state. It is not just that the approach of the Restatement that I have been espousing fell one vote short. More important for our inquiry, the majority accepted effects jurisdiction without any discussion, and by defining 'conflict' in terms of black and white, the majority avoided having to say anything about balancing of competing interests, which is most needed--as well as sharply debated--with respect to the gray areas.


A. EFFECTS JURISDICTION AND ITS DISCONTENTS

Simply defined, effects jurisdiction is an assertion by a state that its law applies (or may apply) to regulate conduct that has or is intended to have effect within its territory, even when the conduct itself takes place outside its territory. The assertion may be made in court, or by governmental order, and it may be made on private as well as public initiative. Since by definition the challenged conduct takes place in some other state, effects jurisdiction may well involve competing interests, and jurisdiction should not be exercised without some thought. But I have never understood why effects jurisdiction has become as controversial as it has become, why the European Court of Justice, for example, though it seems to accept the effects principle, carefully avoids saying so.

Actually effects jurisdiction is not controversial in the context, for instance, of shots fired from state B into state A.1 Nor, I think, would there

____________________
1
The paradigm case, easily talked about, is actually hard to find in the law reports. One example is Simpson v. The State, 92 Ga. 41 ( 1893), sustaining conviction under the law of Georgia of a man who, while standing on the bank of the Savannah River which formed the boundary between South Carolina and Georgia, fired two shots at a man in a boat on the Georgia side of the river's main channel. In fact the shots did not hit the man in the boat, but, as the court said, 'the balls did strike the water in close proximity to him within this State, and therefore it is certain that they took effect in Georgia': id. at 42.

As early as 1826, the British Parliament adopted the following statute: 'Where any Felony or Misdemeanour . . . shall be begun in one county and completed in another, such Felony of Misdemeanour may be dealt with, inquired of, tried, determined and punished in any of the said Counties, in the same Manner as if it had been actually and wholly committed therein': 7 Geo. IV, c. 64, s. XII, quoted also in Jennings, n. 6 infra, at 157.

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