Extraterritoriality refers to the application of a nation’s law to persons, conduct, or property outside its own territory. Customary international law allows nations to regulate extraterritorially on a number of different bases, including effects, nationality, and universal jurisdiction. Nations generally limit the extraterritorial application of their laws to a greater extent than customary international law requires. For example, the United States applies a presumption against extraterritoriality to federal law and sometimes imposes additional limitations as a matter of prescriptive comity. Some U.S. states have their own presumptions against extraterritoriality, which may differ from the federal presumption.
A Primer on Extraterritoriality
[Updated September 1, 2025] Extraterritoriality refers to the application of a state’s law beyond the state’s borders. Although the word “extraterritorial” often has negative connotations, international law permits a great deal of extraterritorial regulation. In a world where trade, information, crime, and lots of other things regularly cross borders, states often have an interest in…
Continue ReadingToshiba ADR Investors in a Catch-22
A recurring challenge in defining the geographic scope of U.S. securities law is how to characterize non-exchange-based transactions in American Depositary Receipts (ADRs). Under the Supreme Court’s Morrison test, such transactions have to qualify as “domestic” to trigger the application of U.S. law. If they don’t, the assumption is that investors would have to litigate…
Continue ReadingExtraterritorial Application of State RICO Statutes
Over the past decade, the U.S. Supreme Court has twice addressed the extraterritorial application of the federal RICO statute. In RJR Nabisco, Inc. v. European Community (2016), the Court held that RICO’s criminal provisions apply extraterritorially to the same extent as the predicate acts on which RICO charges are based, whereas RICO’s civil cause of…
Continue ReadingNew Paper on Extraterritorial Application of the Wire Fraud Statute
I have written before about a circuit split over when the federal wire fraud statute applies extraterritorially. The lower federal courts disagree about how much use of U.S. wires is required to make an application of the statute “domestic.” The Second Circuit has held that use of U.S. wires must be a “core component” of…
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