Harmony and Dissonance in Extraterritorial Regulation

This paper contains four comments that were delivered by a panel on extraterritorial regulation at the 2011 Annual Meeting of the American Society of International Law. The panelists took as their jumping-off point the 2010 decision in Morrison v. National Australia Bank, in which the Supreme Court addressed for the first time the extraterritorial application of the Securities Exchange Act’s anti-fraud provision. Discarding forty years’ worth of precedent developed in the lower courts, the Court held that Section 10(b) applied only to transactions taking place within the United States. The panelists discuss the case and its implications for cross-border securities litigation; the Court’s interpretation of the presumption against extraterritoriality and its consequences for effects-based regulation; and the role of international comity in global economic regulation