Territoriality is a foundational principle of international order, and U.S. laws have always operated on a territorial basis. However, when U.S. 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 a conception of the extraterritoriality doctrine only reveals half of the picture, because U.S. courts may indirectly apply U.S. law beyond U.S. borders through extraterritorial court orders without relying on 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.
Under Equity Extraterritoriality, U.S. courts first obtain jurisdiction over a person, then indirectly exercise extraterritorial authority by ordering the person to take certain actions outside of the courts' territorial jurisdiction, or dispose of properties located outside of the courts' territorial jurisdiction. Importantly, to Equity Extraterritoriality—which covers everything that happens in litigation other than jurisdiction, including provisional orders, discovery orders and post-judgment orders—there is hardly any application of territoriality principles, causing problems typically associated with extraterritoriality, such as causing a diplomatic strain. This contradicts U.S. law's general respect for territoriality, as well as the application of territoriality principles to limit judicial and legislative jurisdiction. This paper provides a brief overview of Equity Extraterritoriality's historical development, explores the problems posed by Equity Extraterritoriality"s extraterritorial reach and under-development, and proposes a conflict-of-laws-based solution to apply territoriality principles so as to curb the worst excesses of Equity Extraterritoriality.
S. Nathan Park,
28 Duke Journal of Comparative & International Law
Available at: https://scholarship.law.duke.edu/djcil/vol28/iss1/3