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Legislation and statutory interpretation.

Module A: Introduction to legislation.

Chapter 4: Geographical extent of legislation

Presumption and theories
The presumption is territoriality; extraterritoriality is the exception: realist theory. Liberal theory attempts to reverse this presumption.

Two types of extraterritorial legislation: One applying to the state’s own subjects abroad (e.g. on tax, serious crimes), and the other applying also to foreigners abroad aiming to protect the state’s interests. The “effects test” of such interests, as initiated by Learned Hand J in Alcoa (see at 443 and 444), gives three criteria of legitimacy of interest:
 * 1) The interest in question must affect the national commerce etc. of the legislating jurisdiction.
 * 2) The effect on national commerce must be substantial and foreseeable.
 * 3) The exercise of extraterritoriality must not be unreasonable.

Drafting practicalities
Drafting for extraterritoriality can be highlighted or embedded. Example of highlighted drafting: The Extraterritorial US Legislation (Sanctions against Cuba, Iran and Libya) (Protection of Trading Interests) Order 1996; of embedded drafting: Energy Act 2004 section 102(5).

To protect from extraterritoriality by blocking, legislate: See for example Council Regulation (EC) No 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom.
 * 1) against cooperating with foreign proceedings
 * 2) against enforcement of foreign judgments
 * 3) against complying with orders of foreign authorities
 * 4) against adherence to foreign extraterritorial legislation
 * 5) to claw back assets

Alternatively, apply the doctrines of effect, reasonableness and comity.

Consider constitutionality and international law. Question the necessity, constitutionality, and prevalence of extraterritorial legislation compared to other measures.