Subjective Territoriality Principle Essay
The subjective territoriality principle permits the State to exercise jurisdiction over acts performed abroad, but which are originated within its territory. While this is a less-disputed jurisdictional principle, it is ill equipped to address non-criminal matters. With regard to business conduct involving multiple States, reliance on the subjective territoriality lead to relocation of the businesses to lax jurisdictions, the so-called “forum shopping”.
The objective territorial jurisdiction enables the application of State’s law to a conduct that occurs within its territory but initiated outside the country. In criminal jurisprudence this comprises the notion that responsibility arises in the location where the harm is done. In this sense, the before-mentioned Lotus judgment rests on the objective territorial principle. The objective territoriality principle, applied within the context of Competition Law, came to be known as the “effects doctrine” .
(b) The Effects Doctrine
The effects doctrine was developed as an extended form of the objective territorial principle, in the context of the United States’ (US) antitrust legislation. It shifts emphasis from the territory of the State where an act or omission has occurred,
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The initial apprehension against extraterritoriality has shifted towards a more receptive approach, as the principle is increasingly perceived as an effective vehicle to promote and protect national interests abroad . The new interpretation of the effects doctrine and the protective principle gave rise to the “positive sovereignty” principle, which departs from a negative understanding of the law of jurisdiction. Pursuant to positive sovereignty, the unilateral exercise of jurisdiction by a State is permissible with regard to a conduct that may be on aggregate harmful, not only to a State in question but to the interests of the global community
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