S Nathan Park, ‘Equity Extraterritoriality’

When US jurisprudence speaks of extraterritorial application of its laws, it is usually assessing whether the legislature or the court has jurisdiction over persons, properties and conducts outside of the territorial borders of the United States. This paper argues that such conception of extraterritoriality doctrine only reveals half of the picture, because US courts have many other opportunities to apply the US law beyond the US borders through extraterritorial court orders, without necessarily referencing extraterritorial jurisdiction. I term such exercise of extraterritorial power ‘Equity Extraterritoriality’, because the court’s power to make such extraterritorial orders stems from the equity tradition. This paper suggests that the extraterritoriality doctrine in the US law is more properly imagined as a tree with two branches, one growing out of the common law, and the other out of equity; and that the focus on extraterritorial assertion of jurisdiction is more properly conceived as ‘Common Law Extraterritoriality’.

These two branches are currently growing in opposite directions, as Common Law Extraterritoriality and Equity Extraterritoriality contradict each other: Common Law Extraterritoriality discourages extraterritorial application of US laws, while Equity Extraterritoriality places no meaningful limit on extraterritoriality. Yet this contradiction is under-explored because Equity Extraterritoriality has received little attention relative to Common Law Extraterritoriality, causing confusion in the territoriality doctrine and allowing parties to obtain extraterritorial orders under Equity Extraterritoriality that they ordinarily could not. In order to resolve this contradiction, this paper first traces the historical development of Equity Extraterritoriality from 17th century English law to the present so as to observe how these two branches of extraterritoriality doctrine began to split. Then the paper surveys the doctrinal problems caused by Equity Extraterritoriality’s under-development, and propose a comity-based conflict of laws test to harmonize the contradiction between Common Law and Equity Extraterritoriality.

Park, S Nathan, Equity Extraterritoriality (August 18, 2016).

First posted 2016-08-19 11:28:11

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