Contemporary Challenges and Continuing Relevance
Edited by Franco Ferrari and Diego P. Fernández Arroyo
Chapter 9: Extraterritoriality in the public and private enforcement of U.S. regulatory law
This chapter examines an emerging differentiation in the extraterritorial application of federal statutes to private claims, on the one hand, and in public enforcement proceedings (both civil and criminal), on the other. It traces this phenomenon to two shifts. The first relates to a question requiring unilateral analysis: how to define the scope of a particular statute. In several areas of federal regulatory law, the geographic scope of statutes has been defined more narrowly in private claims than in proceedings initiated by public authorities. The second shift relates to a question requiring multilateral analysis: whether and how the determination to apply local law should account for the interests of other states. While public regulators routinely consider such interests, in private litigation the case-specific consideration of other states’ interests has fallen out of favour. As a result of these shifts, several US statutes are now less likely to be applied extraterritorially in private litigation than in public enforcement proceedings, diminishing the role of private enforcement in the transnational arena.
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