National Corporate Law in a Globalised Market

National Corporate Law in a Globalised Market

The UK Experience in Perspective

Corporations, Globalisation and the Law series

David Milman

In this timely book, David Milman considers how UK corporate law has been affected by the forces of globalisation, arguing that this is not a new development, but rather is part of an historical continuum. He examines corporate law regulatory strategy in general, treatment of foreign shareholders and multinational groups, aspects of private international law and issues connected with cross border insolvency.

Chapter 6: Cooperation with foreign courts and overseas regulators

David Milman

Subjects: law - academic, company and insolvency law, private international law


EXTRATERRITORIALITY 1 It is somewhat ironic, bearing in mind the constructive theme of this chapter, but we must first address the concept of the aggressive extraterritorial application of national law. In a globalised economy, domestic courts will increasingly be called upon to deal with parties or assets located in foreign jurisdictions. A range of strategies has emerged to combat this problem. One controversial methodology is to apply directly English law beyond the shores of this jurisdiction – that is, in an ‘extraterritorial’ fashion. This is a vexed issue in international law generally.1 The legal device of extraterritoriality is used extensively by the US courts, but only where sanctioned by Act of Congress.2 A few examples will show the potential for usage of this strategy in English law. The general principle is that provisions in the Companies Acts do not apply extraterritorially.3 This reflects the general stance of English law.4 So, for For general discussion of the problems associated with extraterritoriality, see A.V. Lowe [1988] RabelsZ 163 and S. Dutson (1997) 60 MLR 668. 2 The RICO (Racketeer-Influenced and Corrupt Organisations) Act is perhaps the most celebrated example of an Act of Congress that is used extraterritorially. On the extraterritorial effect of the Sarbanes-Oxley Act 2001, see J. Friedland (2004) 25 Co Law 162. The US courts will not, however, adopt an extraterritorial stance where the legislature has not given a lead – see Maxwell Communications Corp v Société Générale [2000] BPIR 764. 3 Ex parte Blain (1879) 12 Ch...

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