08 September 2013

Do American criminal laws apply to conduct abroad?

In Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869, Justice Scalia, writing for the Court, wrote that "[i]t is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." This is known as the Extraterritoriality Canon. A statute presumptively has no extraterritorial application (statuta suo clauduntur territorio, nec ultra territorium disponunt, p. 268 of Justice Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts).

I previously wrote about this canon here and here.

In Kiobel v. Royal Dutch Petroleum, Chief Justice Roberts's majority opinion relied primarily on this canon in concluding that the Alien Tort Statute does not apply to the alleged conduct:
We therefore conclude that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption. "[T]here is no clear indication of extraterritoriality here," Morrison, 561 U. S., at ___ (slip op., at 16), and petitioners' case seeking relief for violations of the law of nations occurring outside the United States is barred.
Morrison was about civil laws--but what about criminal violations? Late last month, the Second Circuit ruled that he presumption against extraterritoriality applies:
Section 10(b) and its implementing regulation, Rule 10b-5 [of the Securities Exchange Act of 1934], do not apply to extraterritorial conduct, regardless of whether liability is sought criminally or civilly. Accordingly, a defendant may be convicted of securities fraud under Section 10(b) and Rule 10b-5 only if he has engaged in fraud in connection with (1) a security listed on a U.S. exchange, or (2) a security purchased or sold in the United States.
For more on this case, see here.
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