"Defensive Territoriality": A New Paradigm for the Prosecution of Extraterritorial Business Crimes

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Georgia Journal of International & Comparative Law

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As we move to a global environment, more consideration needs to be given to issues of jurisdiction. In the criminal sphere, the question becomes: who should hold perpetrators of criminal activity accountable for their conduct? Should we look to the location where the crime is initiated, the country that is substantially affected by the criminality, the nationality of the perpetrator, the nationality of the victim, or all of these factors? Would it be a better course to consider international tribunals when more than one country has connection to the activity? In determining the appropriate jurisdiction in a global society a multitude of different factors need to be examined. Two variables are particularly important in extraterritorial jurisdiction questions. These are: (1) who is examining the issue of extraterritoriality, and (2) for what conduct.

This Article focuses on business crimes that occur outside this country. It limits the context for consideration of extraterritorial jurisdiction to business crimes. It also limits the perspective for examining the appropriate jurisdiction in that it considers conduct solely from the standpoint of whether the United States should be permitted to prosecute the alleged extraterritorial business crime. This is not a comparative piece, and as such it does not focus on how other countries might approach similar questions. It is important, however, to recognize that with the globalization of society, a national perspective often carries with it international implications.

This Article begins by defining the scope of the term "business crimes." In examining the extraterritorial reach of United States prosecutions, the focus is on congressional wording, executive action, judicial interpretation, and international bases of jurisdiction. It then turns to the conduct involved and the impact it can have on whether an extraterritorial prosecution will be permitted." It is argued here that in the limited context of business crimes, extraterritorial prosecutions should be limited to instances when the federal government is the victim of the crime and the conduct requires prosecution as protection of a governmental interest. Conduct merely having a substantial effect on individuals within the country should not be a sufficient basis for a United States prosecution of a business crime. A defensive approach to prosecuting extraterritorial criminal acts, as opposed to proceeding in a proactive or aggressive manner, is advocated here.


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Recommended Citation

Ellen S. Podgor, “Defensive Territoriality”: A New Paradigm for the Prosecution of Extraterritorial Business Crimes, 31 Ga. J. Int'l & Comp. L. 1 (2003).





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