An international body should to be set up to resolve jurisdictional questions raised by the US’s growing habit of prosecuting people in other countries for breaches of American law, the International Bar Association conference heard.
Speakers at a discussion on the US’s ‘long arm of justice' raised concerns about the US's attitude to extra-territorial jurisdiction, noting that a listing on a US stock exchange is sufficient to make a foreign-owned company liable for prosecution in the US for crimes outside its territory.
Another concern is that the US’s double jeopardy rule does not recognise convictions overseas, raising the possibility of prosecutions of individuals who have already served sentences deemed too light by the US authorities.
‘This is significantly different from how the UK would look at jurisdiction,’ Amanda Pinto QC of Andrew Mitchell Chambers said. 'This is a very real problem for the rule of law. Certainty is being undermined by what is happening.'
A high-profile example of the US's attitude to jurisdiction was the prosecution of FIFA executives arrested in May last year. James Klutz, a member of FIFA’s governance board, said there had been ‘a sigh of relief that somebody was doing something’.
Mary Butler, a federal prosecutor in the Department of Justice’s (pictured) asset forfeiture and money laundering section, said that civil confiscation was the main route taken to recover looted assets. However she said that US wire transfers can bring offences under US jurisdiction. ‘The concern is that the US should not be a safe haven, that our financial system should not be used to facilitate or promote crimes around the world.’
However Charles Duross, a former US prosecutor now with Washington DC firm Morrison & Foerster, said there are limits to the US's powers to prosecute foreigners for alleged offences committed overseas. He cited the ongoing case of US v Hoskins, where a US district court ruled that a non-resident foreign national cannot be charged with conspiracy to violate the Foreign Corrupt Practices Act unless they acted as an agent of a ‘physical concern’. However Duross noted that the Department of Justice has taken an appeal to a higher court.
Duross said that the increasing use of extra-territorial prosecutions raised the need for an international agreement, for example through a neutral panel - though he admitted that he did not see the US subjecting itself to such a panel ‘any time soon’.