At ALI’s Annual Meeting on Monday, May 22, members voted to approve the Tentative Draft No. 3 of the Jurisdiction portion of the Foreign Relations Law Restatement.* New content reviewed and approved at this meeting includes the following in the Jurisdiction draft (Reporters Memorandum – edited).
Tentative Draft No. 3 includes an introductory Section on categories of jurisdiction, two Sections on the exercise of prescriptive jurisdiction by the United States, three Sections on jurisdiction to adjudicate in criminal cases, two Sections on jurisdiction to enforce in general, and one additional Section on the recognition and enforcement of foreign judgments.
Part I. Section 101 addresses Categories of Jurisdiction. It continues the approach of the Third Restatement of recognizing three categories of jurisdiction—to prescribe, to adjudicate, and to enforce.
Part II. Includes a revised Section 203 on the Presumption Against Extraterritoriality, in light of the U.S. Supreme Court’s recent decision in RJR Nabisco, Inc. v. European Community, and Section 204 on Reasonableness in Interpretation.
Part III. Chapter 2 includes three Sections on Jurisdiction to Adjudicate in Criminal Cases. Section 311 addresses the Presence of the Defendant, which is required for a criminal trial as a matter of U.S. domestic law, although not as a matter of customary international law. Section 312 covers Extradition, which is the principal means by which the United States acquires the presence of a defendant who is not already in the United States as well as the process by which the United States sends criminal suspects located in the United States to others countries for trial. Section 313 covers Mutual Legal Assistance in Criminal Matters, discussing aspects of the Mutual Legal Assistance Treaties and domestic laws that the United States uses to acquire evidence from other countries in criminal cases and to answer other countries’ requests for evidence.
Part IV addresses Enforcement. Chapter 1 covers Jurisdiction to Enforce in General—that is, the authority of a state to exercise its power to compel compliance with law. Consistent with the approach that Part II took with respect to prescription, Section 401 addresses U.S. practice with respect to enforcement jurisdiction, while § 402 addresses the customary international law governing jurisdiction to enforce. Both U.S. practice and customary international law distinguish between enforcement in a state’s own territory, which is unproblematic, and enforcement in the territory of another state, which requires the consent of that other state.
Part IV. Chapter 2 covers Recognition and Enforcement of Foreign Judgments in the United States, including Section 420 on Judgments Denominated in Foreign Currency.
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*All approvals by membership at the Annual Meeting are subject to the discussion at the Meeting and usual editorial prerogative.