Extraterritorial Jurisdiction vis-a-vis Sovereignty in Tackling Transnational Counterfeits: Between a Rock and a Hard Place?

摘要

Transnational counterfeiting has grown tremendously with the increasing interdependence of global economy. The process of illicit financial flow has outpaced the growth of mechanisms for global governance, and the resultant deficiency produces a regulation vacuum where cross-border crime can thrive. It is necessary to consider the effect of service process of foreign defendants getting evidence. As illustrated in the Gucci case, the US courts face great challenges in addressing extraterritorial jurisdiction. In the context of extraterritorial discovery, it remains unresolved how to prioritise competing jurisdictional claims. Remediation is compromised owing largely to sensitivities over national sovereignty. The broad interpretation of sovereignty makes the Bank of China (BoC) operate behind a firewall that keeps it immune from the jurisdiction of US courts, leaving brand owners vulnerable. A deadlock arises between the proper exercise of extraterritoriality and a critical response to the current increasingly complex cross-border counterfeiting. At stake are fundamental questions of conflict of laws. A valid nexus is indispensable to justify a US court applying the Federal Rules of Civil Procedure (FRCP) 45. Given the unviable course of action via the Hague Evidence Conventions, it is argued that greater legal protections for US entities via subpoenas are a more feasible solution. In response to the global challenge, more multipronged approaches should be adopted to combat the transnational counterfeiting crime.