Some Big Picture Observations Regarding Extraterritorial Applications of Law as the World Watches th
Time certainly flies. It seems just the other day I was writing this post about the grant of cert in the f-cubed securities litigation on application of US law with respect to fact patterns involving mainly overseas acts, but some US impacts and facts. The main point of that post was to suggest that the 2d Circuit opinion seemed to lack depth of knowledge of class action law outside the US. The post also expressed my hope hope that the briefs would educate our high court on class action law in other nations. (As it turns out, the briefs do include sections addressing some conflict of law issues as between national approaches to class action law. However, the sections are relatively brief and superficial, perhaps because of page limits.)
Today’s post offers a few big picture observations on the issues regarding "extraterritorial" application of laws. The issues are being argued here in the context of securities claiming. So, the party and amicus briefs to some large degree focus on parochial arguments about what is and is not good for the US securities industry and others who interact with that system. One hopes the Court will look at the broader picture. On that topic, Kevin LaCroix at the D & O Diary has a very helpful post collecting examples of the "extraterritorial" issue in certain other substantive settings that are on the short term horizon for the Court.
And, of course, the range of issues is not limited to the Court’s short term case list. One can readily go back through prior posts on this blog to see fact patterns and "extraterritorial" issues that will over time arise for tort, insurance and bankruptcy law. Think about, for example, the melamine contamination cases arising from acts China, personal jurisdiction issues from product liability cases involving goods that travel the world, corporate "demergers" in Australia where decisions are driven by future tort claim possibilities, an Australian mass tort defendant that in a decade has thrice changed its global home to try to achieve perceived short-term benefits from local laws, and the billions of dollars of insurance coverage that vanish when insurers use UK schemes of arrangement to avoid past promises made in insurance policy contracts. All of those situations involve fact patterns with many actions overseas, and impacts in the US and throughout the world
Consider also the rule to "be careful what you wish for in litigation" Defeating application of US law now may produce short-term happiness for some parties, but it’s hardly the end of the story. In the f-cubed case, briefs have been filed by, for example, other governments and global investors. These are constituencies that are not going to disappear, and so there will be litigation somewhere over the merits, it’s just a question of where and when the issues will be litigated. Moreover, litigation financing funds can and will flow globally – the capital of the US plaintiff’s bar is no longer the dominant weapon it once was (but neither is the weapon gone), and so business groups need to confront the reality that they could end up litigating cases all over the world. In a related vein, we’ve seen US examples of court systems competing to attract litigation. Court system competition inevitably will happen on an international level, On those possibilities, see this interesting article by Prof. Hannah Buxbaum as she explores possible competition between international legal systems. She has written extensively on international law issues, and is guest blogging this week at the Conglomerate blog due to the f-cubed topic. One of the Professor’s articles is cited in at least one of the briefs.
One final thought. So many important issues, and so relatively little attention ill be given to them in terms of terms of oral argument and pages of briefs. Brevity of course has value at times, but perhaps outcomes would be better with more time to hear more depth about laws and legal systems around the world? On time and attention, I’ll mention that I happened to be in London a few year back during the week the intermediate appellate court was hearing oral argument on pleural plaques issues. The court held oral arguments every day for a week. I stopped by to watch and listen to part of the argument and heard extensive discussion of US "asbestos law" and its lessons and implications. Maybe SCOTUS could learn something more from the "more time" approach ? And, some day, courts in other nations also will be hearing about these issues; how will they handle the subjects?