Author
Assoc Prof Yue Zhang
Organisation/Institution
Southeast University
Country
CHINA
Panel
International Law
Title
Is Long-Arm Jurisdiction Too Long in International Law? A study of U.S. practices targeting Chinese companies
Abstract
This article examines the U.S. government’s broad exercise of long-arm jurisdiction targeting Chinese companies and shows that long-arm jurisdiction, in practice, conflicts with principles of customary international law. The so-called “long-arm jurisdiction” not merely denotes the exterritorial application of U.S. domestic law, but involves specifically the legal capacity of the United States of America to make, enforce, and adjudicate on breaches of substantive rules of U.S. law. Exterritorial legislation, law enforcement, and the courts indeed supplement and coordinate with each other in practice, forming a tight chain of long-arm jurisdiction. The U.S. practices of exercising long-arm jurisdiction have aroused suspicion that the government has abused its power in regard to jurisdiction starting with the Foreign Corrupt Practices Act of 1977 and especially continuing with the Helms-Burton Act of 1996. One scholar regards such jurisdiction as “a judicial guerilla war in order to impose a well-thought-out political will to enhance American power by making law an instrument of foreign policy and promoting its economic interests.” Opposing the US practices, the European Union, Canada, Mexico, and other affected states and entities have taken claw-back measures to nullify these exterritorial laws. Numerous authors question the legality of long-arm jurisdiction by examining due process under the Fifth Amendment of the U.S. Constitution. Some authors argue the long-arm jurisdiction breaches treaty obligations of the United States within the WTO framework. Other scholars argue these practices violate principles of international law, such as sovereign equality and non-intervention. Ignoring criticism from international society and academic community, the “long arm” of U.S. jurisdiction has growing longer and reached out further extending over decades without setting plausible limits. As China’s international status continues to rise, U.S.-China relations face increasing tensions. Abusive U.S. practices of long-arm jurisdiction in China-related matters become more obvious. In recent years, the U.S. government has imposed sanctions to strike against over 200 Chinese companies mostly in three categories— high-tech enterprises, state-owned enterprises in military industry, and foreign trade enterprises. A well-known example is the U.S. targeting of Huawei Incorporation by accusing its CFO Meng Wanzhou of committing fraud under the Iran, North Korea, and Syria Nonproliferation Act of 2000. In this case, it seems entirely questionable whether exporting goods equipped with U.S. technology to Iran could be identified as seriously damaging U.S. interest. How far the long-arm jurisdiction could satisfy a test of “minimum contact” between U.S. interest and the alleged offensive behavior requires further examination from the perspective of international law. This article contributes to current debates over the legality in international law of the U.S. practices of long-arm jurisdiction. Literature abounds on whether or not long-arm jurisdiction is constitutional. However, whether such practices conform to international law requires ongoing consideration. Diverging from the approach of authors who discuss the legality issue under treaty obligations or the principles of sovereign equality and non-intervention, this article examines the legal issue by focusing on the principle of reasonableness in customary international law, which defines the outer limits of any practices of exterritorial jurisdiction. States may exercise such jurisdiction under permissive rules, including nationality jurisdiction, passive personality jurisdiction, protective jurisdiction, and universality jurisdiction. On this basis, this article further argues that the principle of reasonableness serves as an additional test to measure the outer limits of long-arm jurisdiction practices. In particular, this article focuses on the U.S. practices of targeting Chinese companies and examines reasonableness through but not limited to, the following aspects. First, how does a US interest connect to the activity being regulated, such as nationality, residence, or economic activity of a person principally responsible for the activity? Second, how is U.S. territory linked to the activity being regulated? For instance, to what extent does the activity take place within U.S. territory? And whether the activity has substantial, direct, and foreseeable effect upon or in U.S. territory? Third, what character has the activity to be regulated, and to what degree is the desirability of long-arm jurisdiction generally accepted? Forth, how important is long-arm jurisdiction to the U.S. and to the international political, legal, or economic system? Whether there exist justified expectations that might be protected or harmed by long-arm jurisdiction? Last but not least, how is long-arm jurisdiction likely to give rise to conflicting jurisdiction with other states?
Biography
Dr. Yue Zhang is an international law scholar. Yue currently works as an associate professor at Southeast University in China. She receives her doctoral degree from the University of Wisconsin-Madison in the United States in 2018 and completes her grant-holder fellowship at the Max Planck Institute for Comparative Public Law and International Law in Germany in 2019.
