A Research On The Presumption Against Extraterritoriality In The Foreign-related Civil Litigation In The United States

After determining American domestic provisions as the applicable law,if the courts within the territoriality of the United States(hereinafter “U.S.courts”)find the scope of such provisions may not reach that of foreign-related civil relations,is it lawful to apply such provisions in these situations? Some of them have made it illegal to determine the aforementioned practice through the presumption against extraterritoriality(hereinafter “the presumption”).Since the late 1980 s,with the EEOC v.Arabian American Oil Co.(An anti-discrimination case by employees)as a symbol,firstly the U.S.Supreme Court,and then some courts at the U.S.federal and state level have applied the presumption strictly,limiting some provisions in U.S.statutes without a clear indication regarding their spatial extent to domestic application.Lack of knowledge about the presumption,Chinese litigants who participate in such civil litigation less on this ground to raise defenses.Based on such defenses,these litigants can have a weapon responding to a lawsuit in such courts.In order to further explore the tendency of strict application of the presumption in some courts mentioned above after the late 1980 s,the research begins with how such presumption strictly applied by U.S.courts in order to hold the claims by the plaintiffs granted or not.It can also provide advisements for Chinese litigants to deal with the application of provisions in the foreign-related civil litigation in U.S.courts,especially in the patent infringement litigation.This paper will focus on judicial precedents in the U.S.federal courts' in judicial practices and analyze the application of the presumption in such civil litigation.The thesis is divided into five parts:The first part introduces the intension,basic rules and evolution of the presumption in the foreign-related civil litigation in the U.S.On the basis of discussing the origin and meaning of the presumption,this part expounds the evolution of the presumption in these judicial precedents by analyzing the reasons for the application of the presumption and the specific rules of the presumption presumed in the Restatement(Fourth)of Foreign Relations Law of the United States.The second part is the analysis of the scope of applicable provisions and methods of the application of the presumption in such civil litigation.This part first analyzes the scope oflegal provisions to which the presumption may apply.Then,taking the practices from the U.S.federal court system allowing the U.S.state court system to apply the presumption as a clue,the thesis probes into whether the provisions should be applied only in which the U.S.has sovereignty or other places over which the U.S.has some measure of legislative control with the case-by-case judgment.The third part explores the standard and application process of the presumption in such civil litigation.This part focuses on the application process of the presumption and the order of the process from the reasons applying the presumption.First,it explores the connotation of the clear indication criteria in the first step of such process from these judicial precedents and the materials that can be proved to meet such criteria.Second,it explores the determination of the focus of the provision in the second step of the process and asks whether what the focus regulates occurred within the U.S.The fourth part is an empirical analysis of the presumption against in such civil litigation in the light of the judicial precedents of the Supreme Court of the United States applying the presumption after 2010.In such judicial precedents,the view of presumption by the Supreme Court of the U.S.is not accepted by the U.S.federal legislature for the inconsistence of the congressional intent,and some U.S.federal courts have chosen to limit or avoid the application of such precedents.When searching for the materials for judging the focus of provisions,the Supreme Court of the U.S.takes a different approach between civil actions brought by victims of the racketeering or corrupt activity and the patent infringement,and materials for the patent infringement shall be more abundant.The fifth part is the enlightenment to Chinese litigants.This part is based on the logic and practice of the application of the presumption in such civil litigation and points out that these litigants should be aware of the thinking and logic of the application of provisions by the American judicial system towards the presumption.For one thing,if the Chinese plaintiffs do have the need to settle disputes through U.S.courts,they should file civil complaints from provisions met with the clear presentation criteria and,in the absence of such criteria,should rethink the application of the law of the U.S.judiciously.For another,the Chinese defendants need to focus on ascertainment of U.S.domestic statute and the logical loophole in the reasons applying the presumption.