20 St. John's J. Legal Comment. 287

Saint John's Journal of Legal Commentary Spring 2006
Article
*287 EXTRATERRITORIAL CORPORATE CRIMINAL LIABILITY: A REMEDY FOR HUMAN RIGHTS VIOLATIONS?
Eric Engle [FNa1]
Copyright © 2006 St. John's University; Eric Engle
Introduction
I. History and Theory of Corporate Criminal Liability
A. History of Corporate Criminal Liability

*293 B. Legal Bases of Corporate Criminal Liability

C. Ultra Vires as a Basis of Corporate Criminal Liability under International Law?

D. Arguments Against Corporate Criminal Liability

E. Theoretical and Practical Explanations for the Rise of Corporate Criminal Liability

II. Extraterritorial Criminal Jurisdiction Over Criminal Enterprises In U.S. Law
*314 A. The Racketeering Influenced and Corrupt Organizations Act (RICO) [FN158]

B. Anti-Bribery Laws

Conclusion
[FNa1]. Professor of Law, University of Tartu, Estonia. J.D., St. Louis University School of Law; D.E.A., Universite Paris X (Théorie du Droit); D.E.A., Universite Paris II (Droit Fiscal); LL.M.Eur., Universität Bremen, Germany; Dr.Iur, Universität Bremen, Germany. Prof. Engle has taught courses on United States tort law and international human rights law at the Universität Bremen. His research interests are corporate law, human rights, and legal theory. The author thanks Annika Veldre for her support and encouragement, and especially thanks the editors and staff of St. John's Journal of Legal Commentary for augmenting the basic research which supports this article.

[FN1]. See Lena Ayoub, Note, Nike Just Does It - and Why the United States Shouldn't: The United States International Obligation to Hold MNCs Accountable for Their Labor Rights Violations Abroad, 11 DePaul Bus. L.J. 395, 400-01 (1999) (chronicling unfair labor practices perpetrated abroad by United States based multinational corporations); see also Barbara Crutchfield George & Kathleen A. Lacey, A Coalition of Industrialized Nations, Developing Nations, Multilateral Development Banks, and Non-Governmental Organizations: A Pivotal Complement to Current Anti-Corruption Initiatives, 33 Cornell Int'l L.J. 547, 550 (2000) (theorizing that "international business transactions carry the inherent threat and temptation for bribery and corruption").

[FN2]. For an account of corporate facilitation of and complicity with human rights abuses perpetrated by a corrupt political regime, see Sunita Doddamani, Note, Fighting for the Right to Hold Multinational Corporations Accountable: Indonesian Villagers Battle Oil Giant Exxon Mobil, 49 Wayne L. Rev. 835, 835- 38 (2003), detailing Exxon Mobil's employment of the security forces of the Indonesian military dictator General Suharto, which allegedly perpetrated human rights abuses against Achenese dissidents while protecting the company's facilities in Aceh, Indonesia.

[FN3]. See Michael B. Metzger, Corporate Criminal Liability for Defective Products: Policies, Problems, and Prospects, 73 Geo. L. J. 1, 47-48 (1984) (recounting early common law view that, inasmuch as a corporation lacked a mind with which to formulate requisite intent, and a physical form to perpetrate actus reus, a corporation could not be held criminally liable).

[FN4]. Leonard Orland, & Charles Cachera, Corporate Crime and Punishment in France: Criminal Responsibility of Legal Entities (Personnes Morales) under the New French Criminal Code (Nouveau Code Pénal), 11 Conn. J. Int'l L. 111, 117 (1995) (quoting 1 William Blackstone, Commentaries *476).

[FN5]. See Orland, supra note 4, at 114-17 (explaining traditional French model's rejection of vicarious imputation of criminal responsibility to corporations because culpability was viewed as unique to the individual and the model's influence on Western European nations such as Belgium and the Netherlands).

[FN6]. Literally, "corporations cannot commit crimes." Orland, supra note 4, at 115 n.23. This maxim is the genesis of the traditional French model. Inasmuch as the corporation lacks a mind with which to formulate a criminal intent, imputation of criminal liability to corporations was viewed as anathema to the principle that the guilty mind formed the basis for criminal law. Nor could a corporation commit the actus reus warranting criminal sanction. See Orland, supra, note 4, at 115-16. Interestingly, the ancien regime did recognize penal responsibility of corporations. However the bourgeois revolutions' individualist ideal abolished collective responsibility (e.g. 'corruption of the blood', the idea that descendants of a criminal are implicated in the ascendant's crime are unconstitutional in the U.S.). Orland notes that "before the French Revolution... criminal sanctioning of corporations was generally accepted on the continent" and the "the French Grande Ordonannce Criminelle of 1670 mentioned the subject in great detail;" however, "the French Revolution ideal of individualism... did away with the concept." Orland, supra note 4, at 115 (quoting Guy Stessens, Corporate Criminal Liability: A Comparative Perspective, 43 Int'l & Comp. L.Q. 493, 494 (1994)).

[FN7]. For an extensive discussion of corporate criminal liability in French law, see Orland, supra note 4 at 114-17. The authors note that beginning in the early 20th century the American model imputed criminal liability vicariously to the corporate entity for the culpable acts or omissions of its employees and contrasts this with the French model, which did not assign corporate liability for crime. Id. at 114-15. Each model respectively influenced the common law and the civil law. However, the U.S. model has since prevailed even in France. Id. at 115.

[FN8]. See Orland, supra note 4, at 116 (noting that German legal system has not recognized corporate criminal liability per se, but has implemented a system wherein administrative bodies may impose fines on corporations).

[FN9]. See Anita Ramasastry, Corporate Complicity: From Nuremberg to Rangoon An Examination of Forced Labor Cases And Their Impact on the Liability of Multinational Corporations, 20 Berkeley J. Int'l L. 91, 152 (2002) (noting that corporations can commit international crimes and can therefore be tried nationally).

[FN10]. See generally Sara Sun Beale & Adam G. Safwat, What Developments in Western Europe Tell Us About American Critiques of Corporate Criminal Liability, 8 Buff. Crim. L. Rev. 89, 107-16 (2004) (summarizing movement amongst various Western European nations towards adopting corporate criminal liability).

[FN11]. See William S. Laufer, Corporate Bodies and Guilty Minds, 43 Emory L. J. 648, 651-55 (1994) (discussing evolution of corporate criminal liability in United States).

[FN12]. See Beale, supra note 10, at 158-59 (noting that European advocates of corporate criminal liability posit that modern criminal sanctions are more apt to circumscribe the corporations' potential for harm); Metzger, supra note 3, at 47-48 (noting corporation's inability to be subjected to imprisonment as contributing to common law's rejection of corporate criminal liability).

[FN13]. See generally Beale, supra note 10, at 159 (detailing alternative European corporate criminal sanctions, including forced dissolution); Brent Fisse, Reconstructing Corporate Criminal Law: Deterrence, Retribution Fault, and Sanctions, 56 S. Cal. L. Rev. 1141, 1163 n.96 (1983) (enumerating corporate criminal sanctions provided for pursuant to United States federal law, including dissolution).

[FN14]. See Diane Marie Amann, Capital Punishment: Corporate Criminal Liability for Gross Violations of Human Rights, 24 Hastings Int'l & Comp. L. Rev. 327, 332 (2001). Amann also notes the possibility of criminal liability of a corporation in Sweden and Denmark. Id.

[FN15]. See Jordan J. Paust, The Other Side of Right: Private Duties Under Human Rights Law, 5 Harv. Hum. Rts. J. 51, 58 (1992) (noting that "individuals can be punished for human rights violations during times of war" and specifying that prior to and after Nuremberg "private individuals had been prosecuted for related violations of the law of war").

[FN16]. See generally Gail Partin, International Criminal Law, ASIL Guide to Electronic Resources for International Law, Aug. 8, 2005, http:// www.asil.org/resource/crim1.htm (noting that "most legal scholars agree that a recognizable body of international criminal law does exist," but that "the precise parameters of this body of law are often unclear, perhaps due to the rapid and complex developments of our global society").

[FN17]. See Ramasastry, supra note 9, at 153 (listing international crimes).

[FN18]. See Kenneth C. Randall, Universal Jurisdiction under International Law, 66 Tex. L. Rev. 785, 788 (1988) (defining the principle of universal jurisdiction as conferring upon every state "jurisdiction over a limited category of offenses generally recognized as of universal concern, regardless of the situs of the offense, and the nationalities of the offender and the offended").

[FN19]. See Ramasastry, supra note 9, at 153 (noting that nature of listed crimes generates universal jurisdiction).

[FN20]. United Nations Convention against Transnational Organized Crime, opened for signature Dec. 12, 2000, http://untreaty.un.org/English/notpubl/18- 12E.doc [hereinafter UN Convention]. The treaty has been signed by 147 states, including the United States. See United Nations Office on Drugs and Crime, Signatories to the UN Convention against Transnational Organized Crime and its Protocols, UN Convention Signatories, Nov. 8, 2005, http:// www.unodc.org/unodc/crime_cicp_signatures.html.

[FN21]. See UN Convention, supra note 20.

[FN22]. See Robert McLaughlin, Improving Compliance: Making Non-State International Actors Responsible for Environmental Crimes, 11 Colo. J. Int'l Envtl. L. & Pol'y 377, 393 (2000) (noting that the International Law Commission has found certain violations of the rules concerning environment may qualify as international crimes).

[FN23]. See Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 Yale L. J. 443, 447 (2001) (positing that trials of German industry leaders conducted by American courts sitting in occupied Germany evidenced "the willingness of key legal actors to contemplate corporate responsibility at the international level").

[FN24]. United States v. Krupp, IX Trials of War Criminals Before the Nuermberg Military Tribunals, at 1327 (1948).

[FN25]. See Ramasastry, supra note 9, at 108 (noting lengthy discussion of firm's involvement in and perpetration of war crimes and crimes against humanity in tribunal's decision).

[FN26]. See United States v. Krupp, IX Trials of War Criminals Before the Nuerenberg Military Tribunals, at 1412, 1416.

[FN27]. See Ramasastry, supra note 9, at 112 (citing Krupp as an exemplar of judicial attribution of criminal liability to corporations).

[FN28]. United States v. Krauch, et. al, [The I.G. Farben Case], VIII Trials of War Criminals Before the Nuremberg Military Tribunals No. 10 (1952).

[FN29]. See Steven Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 Yale L.J. 443, 478 (2002) (positing that court, by focusing on firms themselves, acknowledged a corporate duty regarding human rights).

[FN30]. See Ramasastry, supra note 10, at 106 (commenting on corporation in Farber being used as instrument of individual actors).

[FN31]. See Amann, supra note 24, at 331-32 (highlighting that International Military Tribunal at Nuremberg found several Nazi security services criminally liable).

[FN32]. See id. (finding Nuremberg hearings opened door for artificial persons to be guilty of crime); see also International Council on Human Rights Policy, Beyond Voluntarism: Human Rights and the Developing International Legal Obligations of Companies, Clean Clothes Campaign, 2002, http:// www.cleanclothes.org/ftp/beyond_voluntarism.pdf (expanding idea of criminal liability from beyond states to individuals and corporations).

[FN33]. Joachim Vogel, Elemente der Straftat: Bemerkungen zur französischen Straftatlehre und zur Straftatlehre des common law, Goltdammer's Archiv für Strafrecht 127 (1998), (concluding that numerous criminal law systems hold directors and managers of corporations criminally liable for subordinates' actions).

[FN34]. Some Anglophone commentators think that the common law rule that a criminal must have both criminal intent (mens rea) and have undertaken a criminal act (actus reus) is also a principle of international law. See, e.g., Jeanne L. Bakker, The Defense of Obedience to Superior Orders: The Mens Rea Requirement, 17 Am. J. Crim. L. 55, 66 (1989).

[FN35]. International Council on Human Rights Policy, supra note 32, at 55 (clarifying that "international law is traditionally made by states and for states" and that "[i]t aims above all to bring some order to inter-state relations").

[FN36]. See Eric Engle, Alvarez-Machain v. United States and Alvarez-Machain v. Sosa: The Brooding Omnipresence of Natural Law, 13 Willamette J. Int'l L. & Dispute Res. 149, 153 (2005) (finding that "international law resembles the national legal structure of pre-codification civilian legal systems").

[FN37]. The two elements of all common law crimes are actus reus (an act) and mens rea (culpable intent). Some are willing to impose those concepts on international criminal law. While mens rea is a general principle of common law and thus is evidence of international practice, civil law criminal theory could be very different and must at least be consulted before making such pronouncements. See, e.g., Bakker, supra note 34, at 56.

[FN38]. See id. (explaining both war crimes and other crimes require act forbidden by law as well as guilty or culpable condition of mind).

[FN39]. See Ramasastry, supra note 10, at 153 (emphasizing higher burden of proof imposed on prosecution in criminal cases).

[FN40]. See United States v. Parness, 408 F.Supp. 440, 442 (1975) (arguing for new trial because "government's attorney knew or should have known about material evidence... [and] the government's attorney had failed to disclose or make such evidence available to them").

[FN41]. See, e.g., Bakker, supra note 34, at 66 (explaining that obedience to orders can manifest illegality when action is so obviously illegal).

[FN42]. See, e.g. United States v. Lee, 937 F.2d 1388, 1394 (1991) (holding that importation of fish from Taiwan, illegal under Taiwanese law, was basis of U.S. conviction because defendant knew or should have known that activity, illegal in Taiwan, would also be illegal in the U.S.).

[FN43]. See Prosecutor v. Furundzija, [1998] ICTY 3, P 245 (Dec. 10, 1998), available at http://www.worldlii.org/int/cases/ICTY/1998/3.html (acknowledging it is not required that accomplice share in mens rea of principal actor).

[FN44]. See Vietnam Ass'n for Victims of Agent Orange/Dioxin v. Dow Chemical Co., 373 F. Supp. 2d 7, 54-55 (2005) (citing several law review articles for traditional argument against imposing corporate liability).

[FN45]. See id. at 58 (commenting on need for corporate liability in today's society); see also Restatement (Third) Foreign Relations Law § 421(2)(e) (1987) (theorizing that "in general, a state's exercise of jurisdiction to adjudicate with respect to a person or thing is reasonable if, at the time of jurisdiction is asserted:... the person, if a corporation or comparable juridical person, is organized pursuant to the law of the state").

[FN46]. The maxim "actus non facit reum, nisi mens sit rea" was introduced into French Canadian law by the English. See Wallace Schwab & Roch Pagé, Locutions Latines Utilisées En Droit Positif Québécois, http:// www.obiter2.ca/B109AH.html (last visited Jan. 18, 2006). The text reads "cette maxime provient du Common law où on dit que l'intention et l'acte doivent être en concordance pour constituer un crime, (this maxim comes from Common law where it is said that the intention and the act must be in agreement to constitute a crime)." Id. Because Canadian criminal law is federal and essentially modeled on the common law, the appearance of mens rea and actus reus in Quebec case law is not especially strong evidence that these principles exist in civilian law and by extension international law. Id.

[FN47]. See, e.g., The Queen v. Parent, [2001] S.C.R. 761 (defining common law and statutory definition of provation and its effect in distinguishing between criminal charge of murder and manslaugher).

[FN48]. See, e.g.,Vogel, supra note 33 (comparing when mens rea is a requirement as oppose to exceptions where vicarious liability of superiors does not require liability in French and German criminal law systems).

[FN49]. For example, the term "mens rea"does not appear at all in monolingual French or German dictionaries of law. In a bi-lingual English-German law dictionary suggested translations of "mens rea" are "subjecktiver Tatbestand", and "Schuldbewusstsein." Dora Von Beseler & Barbara Jacobs-Wustefeld, Law Dictionary: Technical Dictionary of the Anglo-American Legal Terminology Including Commercial & Political Terms: German-English 1056 (1st ed. 1986).

[FN50]. See, e.g., Commission of the European Communities, Green Paper on Criminal-law Protection of the Financial Interests of the Community and the Establishment of a European Prosecutor, COM (01)715 final, Nov. 12, 2001, at 40 n.26, http://europa.eu.int/eur-lex/en/com/gpr/2001/com2001_0715en01.pdf (confirming the acceptance of criminal liability for corporations for all the Member States); see also Action Brought on 18 January 1999 by HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co. KG and Others against the Commission of the European Communities (HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co KG and Others v. Commission), 1999 J.O. (C 86) 24, available at http://europa.eu.int/eur-lex/pri/en/oj/dat/1999/c_086/c_ 08619990327en00240025.pdf (pleading "infringement of Article 6(2) of the European Convention on Human Rights and the principle of mens rea under Article 15(2) of Regulation No 17/62").

[FN51]. See Presbyterian Church of Sudan v. Talisman Energy Inc., 244 F. Supp. 2d 289, 316 (2003) (explaining mens rea requirement for corporate liability in international law).

[FN52]. See Black's Law Dictionary 459 (8th ed. 2004) (defining "de lege ferenda," a latin phrase meaning "from law to be passed" as "a proposed principle that might be applied to a given situation instead or in the absence of a legal principle that is in force"); Beck's Law Dictionary: A Compendium Of International Law, http://www.people.virginia.edu/~rjb3v/latin.html (last visited Jan. 18, 2006) (defining "lex lata" as "what the law is (as opposed to what the law should be)").

[FN53]. See generally Presbyterian Church of Sudan, 244 F. Supp. 2d at 315 (noting that Nuremburg trials were root in common law for imposing criminal liability against corporations).

[FN54]. See generally Jens David Ohlin, Is the Concept of a Person Necessary for Human Rights?, 105 Colum. L. Rev. 209, 227 (2005) (noting recognition of rights of corporations in tax realm and in other areas has spurred a push for domestic and international criminal liability for corporations).

[FN55]. See Mirjan Damaska, The Shadow Side of Command Responsibility, 49 Am. J. Cop. L. 455, 456 (2001) (commenting that international criminal law is more hospitable when it comes to the doctrine of complicity and other forms of vicarious liability); see also Kendel Drew and Kyle A. Clark, Twentieth Survey of White Collar Crime, 42 Am. Crim. L. Rev. 277, 280 (2005) (clarifying that the agency relationship is established for criminal liability purposes when employee acts within scope of employment).

[FN56]. See The American Law Institute, Restatement of the Law (Second) Agency, § 1 (1958) (defining agency as "the fiduciary relation which results from the manifestation consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act").

[FN57]. See Ramasastry, supra note 10, at 155 n.267 (describing how some common law systems have resolved issue of "imputing the acts of a natural person to a corporation" by "adopting vicarious liability").

[FN58]. See id. (defining attribution as "identification of the acts of those representing the corporate 'mind' or 'will' as acts of the corporation").

[FN59]. Mala prohibita are acts that are "crime[s] merely because [they are] prohibited by statute, although the act[s] [themselves are] not necessarily immoral." Black's Law Dictionary 971 (7th ed. 1999). Mala prohibita have also been defined as acts which are "made offenses by positive laws, and prohibited as such." Black's Law Dictionary 956 (6th ed. 1990).

[FN60]. See Ramasastry, supra note 10, at 155 n.267 (referencing H.L. Bolton (Eng'g.) Co. Ltd. v. Graham & Sons Ltd., 1 Q.B. (1957), for the United Kingdom's version of the identification principle known as "the directing mind doctrine").

[FN61]. See id. (describing how acts and mens rea of employee can become acts and mens rea of corporation).

[FN62]. See id. (explaining that civil law jurisdictions have enacted legislation providing for application of "specific penal laws to legal persons").

[FN63]. Mala in se are "act[s] that [are] inherently immoral, such as murder, arson, or rape," Black's Law Dictionary 971 (7th ed. 1999), while Mala in se are described as "[w]rongs in themselves" or "acts morally wrong" or "offenses against conscience," Black's Law Dictionary 956 (6th ed. 1990). For example, parking violations are mala prohibita; there is nothing inherently evil about a car being in a metered parking space but when the meter runs out, the act becomes wrongful by operation of positive law. In contrast, drunken driving is a mala in se; the act is inherently evil because the drunken driver cannot properly judge his speed or the distance of objects and, thus, kills people. Further, the mala in se and mala prohibita distinction parallels that of natural law and positive law. Because mala in se are evils so wrong that they are inscribed on the heart of all living beings, they are naturally recognized by all as wrongs, need not be declared by the legislator to be evil, and may be banned ex post facto. On the other hand, mala prohibita are only positive wrongs and, thus, are wrong merely by operation.

[FN64]. See Ramasastry, supra note 10, at 100 (including accomplice liability as one of three ways in which a corporation could be liable for violating international guidelines).

[FN65]. See Partin, supra note 16, at P 1 (declaring international criminal law as being derived from general principles of international law, customary law, and treaties).

[FN66]. See Andrew Clapham & Scott Jerbi, Categories of Corporate Complicity in Human Rights Abuses, 24 Hastings Int'l & Comp. L. Rev. 339, 342- 43 (2001) (positing that corporation could be accomplice in human rights violation if it violates customary international law principles).

[FN67]. See id. at 342 (noting that it is not necessary for accomplice to intend eventual, criminal result).

[FN68]. Id. at 345.

[FN69]. See Ramasastry, supra note 10, at 101 (denoting the three types of complicity for which multi-national corporations might be held liable).

[FN70]. See Clapham & Jerbi, supra note 66, at 342 (noting direct participation requires "intentional participation").

[FN71]. See id. at 342 (saying that "only knowledge of the foreseeable harmful effects" is required to be a direct participant).

[FN72]. See id. at 346 (identifying situations where complicity found by business receiving benefit from "human rights abuses" of another).

[FN73]. See id. at 347-48 (explaining that notion of silent complicity stems from expectation that companies alert proper authorities to known human rights abuses based on principle that "[s]ilence is not neutrality").

[FN74]. See id. at 348 (viewing silent complicity more as moral issue than as issue likely to be pursued and penalized by respective governing authority).

[FN75]. See generally Clapham & Jerbi, supra note 66, at 341 (working from premise that levels of complicity mirror levels of complicity likely to be attributed to offending corporation).

[FN76]. A causae sine qua non is a "[a] necessary cause; the cause without which the thing cannot be or the event could not have occurred." Black's Law Dictionary 211 (7th ed. 1999). It has also been described as "[a]n indispensable requisite or condition." Black's Law Dictionary 1385 (6th ed. 1990).

[FN77]. See Prosecutor v. Kunarac, Case Nos. IT-96-23-T, IT-96-23/1-T, P 391 (Int'l Crim. Trib. for Former Yugoslavia Feb. 22, 2001), available at http://www.un.org/icty/foca/trialc2/judgement/index.htm (last visited Jan. 18, 2006) (stating that "[t]he act of assistance need not have caused the act of the principal").

[FN78]. See Prosecutor v. Tadic, Case No. ICTY-94-1-T, P 688 (Int'l Crim. Trib. for Former Yugoslavia, May 7, 1997), available at http:// www.un.org/icty/tadic/trialc2/judgement/index.htm (last visited Jan. 18, 2006) (explaining that in order to be held responsible individual must know that they are assisting in commission of crime).

[FN79]. John Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002), vacated by 395 F.3d 978 (9th Cir. 2003). The court in John Doe I v. Unocal Corp., 395 F.3d 978 (9th Cir. 2003), later determined that this case would be reheard by the 9th Circuit en banc, and that the earlier decision will only be cited to the extent consistent with the en banc rehearing. Id.

[FN80]. See Unocal, 395 F.3d at 948 (finding that District Court "erred" in applying "active participation" standard).

[FN81]. See Clapham & Jerbi, supra note 66, at 342 (clarifying that neither identity of principal perpetrator nor proven guilt of principal perpetrator need be proven for corporation to be found criminally liable under theory of direct complicity).

[FN82]. See id. at 343 (noting crime itself need not be known to accomplice in order to be criminally liable).

[FN83]. See, e.g., Joel R. Paul, Symposium, Holding Multi-National Corporations Responsible Under International Law, 24 Hastings Int'l & Comp. L. Rev. 285, 293 (2001) (acknowledging that while multinational corporations may be held liable for intentional human rights violations, "it is uncertain whether corporations may also be held liable for silent complicity in human rights abuses").

[FN84]. See United States v. von Weizsaecker [The Ministries Case], XIV Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, at 621-22 (1949).

[FN85]. See Ramasastry, supra note 10, at 112-13 (holding that "the mere act of providing credit to finance criminal activities does not constitute a violation of customary international law, even where the bank had knowledge of the purpose for such financing").

[FN86]. Michael Anderson, Transnational Corporations and Environmental Damage: Is Tort Law the Answer?, 41 Washburn L.J. 399, 401 (2002).

[FN87]. See Cynthia A. Williams, Corporate Social Responsibility In An Era Of Economic Globalisation, 35 U.C. Davis L. Rev. 705, 769 (2002) (describing problem of "judgment proof" companies in third world held by or trading with solvent first world companies).

[FN88]. See, e.g., Case 286/98 P, Stora Kopparbergs Bergslags AB v. Commission, 2000 E.C.R. I-09925, para. 79 (2000) (stating that legal personalities of subsidiary companies are not sufficient to prevent liability of the parent company).

[FN89]. See Danielle Everett, New Concern For Transnational Corporations: Potential Liability For Tortious Acts Committed By Foreign Partners, 35 San Diego L. Rev. 1123, 1124-27 (1998) (noting that Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997), implies potential parent liability for tortious acts of subsidiaries and expressing concerns as to limits of such liability).

[FN90]. Anderson, supra note 86, at 402.

[FN91]. See Berthold Goldman, Multinational Enterprises, Justitia et Pace Institut de Droit international, Sept. 7, 1977, http://www.idi-iil.org/idiE/resolutionsE/1977_oslo_02_en.pdf (clarifying that "enterprises which consist of a decision-making centre located in one country and of operating centres, with or without the legal personality, situated in one or more countries should, in law, be considered as multinational enterprises").

[FN92]. See, e.g., Amann, supra note 14, at 333 (commenting that Chevron and Unocal were never prosecuted by the U.S. government or the State of California for human rights abuse in the third world).

[FN93]. See generally Kent Greenfield, Ultra Vires Lives! A Stakeholder Analysis Of Corporate Illegality (With Notes On How Corporate Law Could Reinforce International Law Norms), 87 Va L. Rev. 1279, 1279-92 (2001) (positing that decision to violate international laws should be based on costs of violating the law (citing Frank H. Easterbrook & Daniel R. Fischel, Antitrust Suits by Targets of Tender Offers, 80 Mich. L. Rev. 1155, 1168 n.36 (1982))).

[FN94]. See Greenfield, supra note 93, at 1329-30 (acknowledging that corporation's power is derived from the state).

[FN95]. See id. at 1329-30 (noting "a state has no authority to authorize anyone, including a corporation, to engage in acts that are illegal in another jurisdiction").

[FN96]. See id. at 1326-28 (concluding that interests of both the state and the corporation are better served by compliance with the law).

[FN97]. See Black's Law Dictionary 1525 (7th ed. 1999) (defining ultra vires as "unauthorized; beyond the scope of power allowed or granted by a corporate charter or by law").

[FN98]. See Greenfield, supra note 93, at 1280-81 (stating corporations are not authorized under charters to act unlawfully).

[FN99]. See id. at 1281-83 (noting that corporations are bound to act in accordance with, not only laws of the corporation, but with laws of the state).

[FN100]. See id. at 1282-83 (arguing that obligation to abide by law extends beyond jurisdiction of incorporation to foreign jurisdictions).

[FN101]. See id. at 1373 (interpreting doctrine of ultra vires as meaning "corporations have the duty, as a matter of domestic corporate law, to act lawfully even in foreign nations").

[FN102]. See Ramasastry, supra note 10, at 155 n.267 (discussing difficulties in finding requisite mens rea to commit crime for fictional entity).

[FN103]. See id. at 155 n.267 (stating that some jurisdictions attribute mens rea of employee to corporation).

[FN104]. See Christopher A. Whytock, Thinking Beyond the Domestic-International Divide: Toward a Unified Concept of Public Law, 36 Geo. J. Int'l L. 155, 193 n.5 (2004) (acknowledging domestic laws generally arise from constitutions and legislation while international law is from treaties and international custom).

[FN105]. See Dinah Shelton, Human Rights and the Hierarchy of International Law Sources and Norms: Hierarchy of Norms and Human Rights: Of Trumps and Winners, 65 Sask. L. Rev. 299, 322 (2002) (discussing peremptory norms as a source of customary international law).

[FN106]. See 1945 I.C.J. Acts & Docs 59, available at http:// www.yale.edu/lawweb/avalon/decade/decad026.htm#art59 (clarifying "the decision of the Court has no binding force except between the parties and in respect of that particular case").

[FN107]. Black's Law Dictionary 865 (7th ed. 1999) (defining jus gentium as "the law of nations").

[FN108]. 1945 I.C.J. 38, available at http:// www.yale.edu/lawweb/avalon/decade/decad026.htm#art38 (stating "the Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: ... the general principles of law recognized by civilized nations").

[FN109]. See George E. Edwards, International Human Rights Law Challenges to the New International Criminal Court: The Search and Seizure Right to Privacy, 26 Yale J. Int'l L. 323, 388-89 (2001) (stating "two elements must be present for a principle or rule of customary international law to exist: (1) state practice as proof of custom; and (2) opinio juris vel necessitatis (opinio juris)").

[FN110]. Id. at 389 (defining internal law of relevant states as proof of "state practice" element and explaining that opinio juris "requires an examination of a State's motives in engaging in a particular act or practice").

[FN111]. The problem of ultra vires in international law is complicated by the fact that ultra vires is both a common law principle of corporations and of public entities. The indifferent application of a legal theory to a private artificial legal person and a public one is essentially contrary to civilian legal theory, which sees a strict split between interpretations of private and public laws and definitive attributions of powers and limitations to artificial persons based on their status as public or private. Under classic international law, a corporation would not be recognized as having any legal personality because states are the only subjects of international law. Thus, in the corporate sense, ultra vires could have no application in the international arena. Furthermore, international law has long recognized that a state is liable internationally for its acts regardless of its internal legal order and will be held responsible for its wrongs even if those wrongful acts were also, in the internal order, legal and constitutional. Therefore, ultra vires really had no place in the international system. For an example of a common law lawyer who, citing to the Inter-American Court of Human Rights, reaches the correct result - that ultra vires, as to states, is irreleevant to the question of state liability to other states see Theodor Meron, State Responsibility for Violations of Human Rights, 83 Am. Soc'y Int'l L. Proc., 372, 375-76 (1989). To read Mizushima Tomonori, a Japanese civil law legal scholar's view that ultra vires does not apply to states because a state can be liable internationally even for those acts which it undertakes in violation of its own laws see Mizushima Tomonori, Holland and Hart Private International Law Award: The Individual as Beneficiary of State Immunity: Problems of the Attribution of Ultra Vires Conduct, 29 Denv. J. Int'l L. & Pol'y 261, 277-78 (2001).

[FN112]. See Susan-Jacqueline Butler, Models Of Modern Corporations: A Comparative Analysis Of German And U.S. Corporate Structure, 17 Ariz. J. Int'l & Comp. L. 555, 568 (2000) (stating German law has no equivalent to the ultra vires doctrine).

[FN113]. See Michael Grunson & Uwe H. Schneider, The German Landesbanken, 1995 Colum. Bus. L. Rev. 337, 376 (1995) (noting while ultra vires is not recognized for German corporations, the German Supreme Court has applied the doctrine twice when certain public law entities acted outside their function as defined by law).

[FN114]. See Raymond Guillien et al., Lexique de Termes Juridiques 384 (4th ed. 1978).

[FN115]. See Gerard Cornu, Vocabulaire juridique 847 (6th ed. 1996).

[FN116]. The general principles of law are like axioms and postulates of the law. They are true of any civil law jurisdiction. Thus, for example, the principle of legality implies nul crimen sine lege (there can be no crime where there is no law); the principle of equality implies that all persons are equal before the law; the principle of self defense means that one has the right to an attorney. Aside from international law and vestigial through the maxims of equity, general principles of law simply do not exist as a source of law in the common law. The nearest parallel in the U.S. is the idea of "fundamental rights;" however, the overlap between "fundamental rights" and "general principles of law" is only partial. For comparison, see Restatement (Third) of Foreign Relations Law of the United States § 102 (4) (1987), which allows common general principles of law to be invoked to supplement the rules of international law.

[FN117]. See generally James A. Fanto, The Transformation of French Corporate Governance and United States Institutional Investors, 21 Brook. J. Int'l L. 1, 29-67 (1995) (discussing structure and transformation of French corporate governance).

[FN118]. See Greenfield, supra note 93, at 1373 (proposing that if ultra vires were applied, a shareholder could sue a corporation for breaking the law of a foreign country).

[FN119]. The German Aktiengesellschaft (AG) is similar to a corporation or to the French SNC (Société en nom Collectif). The AG and SNC find their equivalent in the archaic but still existing "joint stock company." They are partnerships with limited liability, but alienable shares. For a discussion on AG see David J. Berger, Guidelines for Mergers and Acquisitions in France, Nw. J. Int'l L. & Bus. 484, 500-01 (1991). For an explanation of the nature of the AG and tracing its origins to early British joint stock companies see Ingrid Lynn Lenhardt, Eighth Annual Corporate Law Symposium: Limited Liability Companies: The Corporate And Tax Advantages of Limited Liability Company: A German Perspective, 64 U. Cin. L. Rev. 551, 551 (1996).

[FN120]. Société Anonyme avec Responsabilité Limité (SARL), an anonymous association with limited liability, is, in other words, a corporation. The SARL is one French equivalent of the corporation. For further explanation of the nature of a SARL see Berger, supra note 119, at 495-96.

[FN121]. See Greenfield, supra note 93, at 1372-73 (explaining application of ultra vires in international sense would allow shareholder to hold corporation to contractual obligation even if the host government was unwilling to do so).

[FN122]. See Greenfield, supra note 93, at 1373-74 (suggesting ultra vires would offer remedy against corporations who violate international customary law, decreasing abuses of human rights).

[FN123]. "A principle created to apply to a given situation, rather than from existing precedents; law created for changing circumstances." Black's Law Dictionary 438 (7th ed. 1999).

[FN124]. "Existing law. The principle that a court should decide based on actual law and not on how it thinks the law ought to be." Id.

[FN125]. See Comment, Herald Co. v. Seawell: A New Corporate Social Responsibility?, 121 U. Pa. L. Rev. 1157, 1157 (1973) (proposing there is lack of social responsibility in corporate realm).

[FN126]. See Dodge v. Ford Motor Co., 170 N.W. 668, 684 (Mich. 1919) (positing that business corporation is organized and carried on primarily for profit of stockholders).

[FN127]. Milton Friedman, Capitalism and Freedom 133 (Univ. of Chicago Press 1971) (1962) (advancing notion that corporation has sole responsibility of increasing profits of shareholders).

[FN128]. See id. at 133 (stating corporations must "stay within the rules of the game" when seeking to increase its profits); see also Greenfield, supra note 93, at 1281-82 (emphasizing often overlooked requirement that articles of incorporation require charter corporations only for lawful purposes).

[FN129]. Herald Co. v. Seawell, 472 F.2d 1081 (10th Cir. 1972).

[FN130]. See id. at 1095 (acknowledging that defendant corporation, not unlike other corporations, has duty to its employees over and above maximizing profit).

[FN131]. See Robert Wai, Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization, 40 Colum. J. Transnat'l L. 209, 261 (2002) (suggesting that progressive corporate practices may become more common because they make good business sense rather than out of altruism).

[FN132]. Cf. Claire Moore Dickerson, How Do Norms and Empathy Affect Corporation Law and Corporate Behavior?: Human Rights: The Emerging Norm Of Corporate Social Responsibility, 76 Tul. L. Rev. 1431, 1459 (2002) (suggesting that directors face lower risk of liability for human rights violations in U.S. courts than for violating duties to shareholders, but holding out hope that there is growing trend for liability for human rights violations).

[FN133]. See id. at 1432 (noting that, in actual behavior, corporations are moving beyond the classic model of limited social responsibility and that "[a]s a matter of conduct, multinationals recognize the rights of persons other than shareholders").

[FN134]. "The doctrine holding an employer or principal liable for the employee's or agent's wrongful acts committed within the scope of the employment or agency." Black's Law Dictionary 1313 (7th ed. 1999).

[FN135]. See id. at 632 (defining rule).

[FN136]. See V.S. Khanna, Corporate Liability Standards: When Should Corporations be Held Criminally Liable?, 37 A. Crim. L. Rev. 1239, 1246 (2000) (explaining strict liability imposes liability on corporation for acts or omissions of its agents, whenever these acts or omissions result in harm); see also Symeon C. Symeonides, Choice of Law in the American Courts in 2001, 50 Am. J. Comp. L. 1, 78 (2002) (holding that through adoption of strict liability laws, Texas has expressed interest in protecting its consumers while simultaneously regulating products in stream of commerce).

[FN137]. See Kyle Rex Jacobson, Doing Business with the Devil: The Challenges of Prosecuting Corporate Officials Whose Business Transactions Facilitate War Crimes and Crimes Against Humanity, 56 A.F. L. Rev. 167, 214 (2005) (noting that recognition of corporate criminal and civil liability, has allowed victims of human rights abuses to better vindicate rights).

[FN138]. See Michael K. Block, Optimal Penalties, Criminal Law and the Control of Corporate Behavior, 71 B.U.L. 395, 397-98 (1991) (arguing that optimal penalties for corporate criminal liability set at level which reflects costs to society forces economic agents to internalize total cost of activities rather than force society to bear costs of harm).

[FN139]. See id. at 398 (stating that calculating fines based on harm to society promotes the most efficient result).

[FN140]. See Jeffrey Nesteruk, Bellotti and the Question of Corporate Moral Agency, 1988 Colum. Bus. L. Rev. 683, 687-89 (1988) (positing that corporations are incapable of exercising moral freedom because they are ultimately controlled by their structures).

[FN141]. See Demian Betz, Holding Multinational Corporations Responsible for Human Rights Abuses Committed by Security Forces in Conflict Ridden Nations: An Argument Against Exporting Federal Jurisdiction for the Purpose of Regulating Corporate Behaviour Abroad, 14 DePaul Bus. L.J. 163, 164 (2001) (advancing theory that investments of multinational corporations are politically neutral and should not influence behavior of sovereign nations).

[FN142]. See generally Dickerson, supra note 132, at 1432-33 (noting both Nike and Wal-Mart have adopted codes of conduct to articulate concern and regulate the working conditions of developing country workers); Ramasastry, supra note 10, at 93-94 (examining history of corporate liability for forced labor and arguing that MNCs should be either criminally or tortuously liable for egregious abuses of human rights).

[FN143]. See Ratner, supra note 29, at 464-65 (explaining deterrence rationale, as applied to corporate criminal liability, places incentives to curb human rights violations on party with greatest ability and interest in addressing corporate conduct).

[FN144]. See Lawrence Friedman, In Defense of Corporate Criminal Liability, 23 Harv. J. L. & Pub. Pol'y 833, 840-41 (2000) (citing Kant for proposition that "the state must punish individuals who violate the law because they have violated the law and only because they have violated the law - without regard, that is, for the consequences that might flow from the imposition of punishment").

[FN145]. See Deana A. Pollard, Wrongful Analysis in Wrongful Life Jurisprudence, 55 Ala. L. Rev. 327, 340 (2004) (referring to Restatement of Torts for the proposition that main purposes of tort litigation is giving compensation, indemnity, or restitution for harm, determining rights, deterring wrongful conduct and vindicating parties).

[FN146]. See John C. Coffee, Jr., Does "Unlawful" Mean "Criminal?": Reflections on the Disappearing Tort/Crime Distinction in America Law, 71 B.U.L Rev. 193, 231 (1991) (stating traditional concept that tort law serves to compensate while criminal law serves to punish and positing that perhaps distinction can be correlated with decline in private enforcement of criminal law).

[FN147]. See Beth Stephens, Conceptualizing Violence: Present and Future Developments in International Law: Panel I: Human Rights & Civil Wrongs at Home and Abroad: Old Problems and New Paradigms: Conceptualizing Violence under International Law: Do Tort Remedies Fit the Crime?, 60 Alb. L. Rev. 579, 585 (1997) (outlining moral underpinnings of international tort/crime distinction and noting that international crimes involve entire community while torts only affect parties involved).

[FN148]. See Friedman, supra note 144, at 852 (discussing modern corporation's unique position as entity separate from its managers and employees and arguing that corporation can therefore be held criminally responsible for its conduct in same manner as individual wrongdoer).

[FN149]. See Ramasastry, supra note 10, at 153 (explaining that criminal sanctions are greater deterrent than civil sanctions for corporate criminal liability because criminal sanctions have much more stigmatizing side effects than do civil sanctions).

[FN150]. Id. at 153 (advancing universality principle as granting jurisdiction to national court regardless of where offense occurred or of the nationality of defendant).

[FN151]. See Joseph F.C. DiMento, Gilbert Geis and Julia M. Gelfand, Corporate Criminal Liability: A Bibliography, 28 W. St. U.L. Rev. 1, 2 (2000) (noting that corporations almost always have more assets than individuals and therefore from a restitution perspective are better able to compensate victims).

[FN152]. See George B. Shephard, Time and Money: Discovery Leads to Hourly Billing, 1999 U. Ill. L. Rev. 91, 98 (1999) (explaining that broad discovery standards actually hurt many potential litigants because they raise cost of litigation and therefore deny many vulnerable groups legal recourse).

[FN153]. See Beth Stephens, Corporate Liability: Enforcing Human Rights Through Domestic Litigation, 24 Hastings Int'l & Comp. L. Rev. 401, 411 (2001) (noting that most countries have "loser pays" policy in that prevailing party can be compensated for legal fees by the loser).

[FN154]. See Eric Engle, Corporate Social Responsibility (CSR): Market-Based Remedies for International Human Rights Violations?, 40 Willamette L. Rev. 103, 120-21 (2004) (commenting that while codes of conduct or corporate self-regulation alone will not spur reform of corporate human rights abuses, when combined with binding civil or criminal law they can be used to promote higher standards of conduct).

[FN155]. See 18 U.S.C. §§ 1963-1964 (2005) (enumerating both civil and criminal remedies for violation of the Racketeering Influenced and Corrupt Organizations Act); see also 17 CFR § 240.10b-5 (2003) (listing civil causes of action).

[FN156]. See James Nicholas Boeving, Aggression, International Law, and the ICC: An Argument for the Withdrawal of Aggression from the Rome Statute, 43 Colum. J. Transnat'l L. 557, 607 (2005) (noting that punitive damages are not available in international civil litigation).

[FN157]. See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 18 (Tex. 1994) (explaining that tort law recognizes compensation and not punishment as its objective and therefore, punitive damages are reserved only for most exceptional cases).

[FN158]. 18 U.S.C. §§ 1961-1968 (2005).

[FN159]. See Wiwa v. Royal Dutch Petroleum, No. 96 Civ. 8386, 2002 U.S. Dist. LEXIS 3293, at *66-67 (S.D.N.Y Feb. 22, 2002) (holding that even though RICO is silent on extraterritorial application, it is clear that foreign corporation is not shielded from liability merely because of location).

[FN160]. See 18 U.S.C. § 1963 (2005) (listing possible criminal penalties, such as fines and imprisonment for violation of RICO); 18 U.S.C. § 1964 (2005) (enumerating possible civil remedies implicit in RICO).

[FN161]. See 15 U.S.C.A. § 78dd-3 (2005). Subsection (e) lists the criminal penalties and subsection (d) provides for injunctive relief as a civil remedy to the FCPA. 18 U.S.C. § 1963-1964 (2005). RICO's criminal penalties are provided for in § 1963 and a civil remedy is listed in § 1964. Notably, a "defendant can be both criminally and civilly liable under Rule 10-b." Securities Fraud, 37 Am. Crim. L. Rev. 941, 946 (2000).

[FN162]. See Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922, 923 (1970) (proclaiming that it is "the purpose of this act to seek the eradication of organized crime in the United States...").

[FN163]. 18 U.S.C. § 1962(c) (2005).

[FN164]. See Sedima S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 495-96 (1985) (discussing pattern of racketeering as sufficient to establish claim under RICO).

[FN165]. See Sedima, 473 U.S. at 496 (noting that plaintiff must allege each of these elements in order to state a claim).

[FN166]. See Procter & Gamble Co. v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 15 (2d Cir. 1989) (defining "enterprise" for RICO purposes).

[FN167]. 18 U.S.C. § 1961(3) (2000).

[FN168]. 18 U.S.C. § 1961(4) (2000).

[FN169]. See United States v. Angelilli, 660 F.2d 23, 30-33 (2d Cir. 1981) (discussing broad definition of "enterprise" as encompassing governmental entity due to lack of contrary legislative intent).

[FN170]. See 18 U.S.C. § 1962(c) (2000). The act prohibits racketeering activities by "any person employed by or associated with any enterprise..." Id.

[FN171]. Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 344 (2d Cir. 1994).

[FN172]. See Discon, Inc. v. NYNEX Corp., 93 F.3d 1055, 1064 (2d Cir. 1996) (applying Riverwoods to NYNEX Group and its three subsidiary corporations), rev'd on other grounds, 525 U.S. 128 (1998).

[FN173]. See Cedric Kushner Promotions v. King, 533 U.S. 158, 165-66 (2001) (suggesting that in such a situation the two would qualify under RICO as distinct entities).

[FN174]. See 18 U.S.C. § 1962(c)-(d) (2000). Subsection (d) makes it unlawful to conspire to violate the other provisions of the section. Id.

[FN175]. See 18 U.S.C. § 1961(5) (2000) (providing definition of "pattern of racketeering activity" for purposes of RICO Act).

[FN176]. See H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 237- 39 (1989) (noting "it is not the number of predicates but the relationship that they bear to each other or to some external organization" that is relevant for RICO purposes).

[FN177]. See Procter & Gamble Co. v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 15 (2d Cir. 1989) (specifying complaint must independently allege both an enterprise and pattern of racketeering activity).

[FN178]. De Falco v. Dirie, 923 F. Supp. 473, 477 (S.D.N.Y. 1996) (citing H.J. Inc., 492 U.S. at 240).

[FN179]. 18 U.S.C. § 1961(1)(A)-(B) (2000) (outlining crimes qualifying as "racketeering activity").

[FN180]. See 18 U.S.C. 1951(b)(2) (2005). Extortion is defined by the act as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." Id. It seems logical that an act of extortion could be furthered through the use of these other crimes listed as predicate acts.

[FN181]. 18 U.S.C. § 1951 (2000) (codifying federal crime of racketeering).

[FN182]. See 18 U.S.C. § 1951(a) (2000) (requiring this element specifically).

[FN183]. Id. Specifically, "whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both." Id.

[FN184]. 18 U.S.C. § 1962(c) (2000).

[FN185]. 18 U.S.C. § 1962(d) (2000). This conspiracy provision applies to all of the provisions of subsections (a), (b), or (c). Id.

[FN186]. See Salinas v. United States, 522 U.S. 52, 65 (1997) (clarifying that § 1962(d) omitted requirement of an overt act).

[FN187]. See United States v. Zichettello, 208 F.3d 72, 99 (2d Cir. 2000) (holding that it is not necessary that conspirator knows of all acts done in furtherance of conspiracy for RICO charge).

[FN188]. See, e.g., Orion Tire Corp. v. Goodyear Tire & Rubber Co., 268 F.3d 1133, 1137 (9th Cir. 2001) (examining facts under RICO, state law, and foreign law claims).

[FN189]. See United States v. Paone, 782 F.2d 386, 393 (2d Cir. 1985) (explaining that RICO predicate acts may be acts "chargeable by state law" and that, particularly in this case, all were New York state offenses).

[FN190]. United States v. Bagaric, 706 F.2d 42, 62 (2d Cir. 1983), abrogated on other grounds by, Nat'l Org. for Women v. Scheidler, 510 U.S. 249 (1994).

[FN191]. See, e.g., United States v. Coonan, 938 F.2d 1553, 1564-65 (2d Cir. 1991) (striking down defendant's argument regarding Double Jeopardy clause because Congress' intention in using state law to define predicate acts in RICO was for generic definitory purposes rather than specific procedural history).

[FN192]. United States v. Carillo, 229 F.3d 177, 186 (2d Cir. 2000).

[FN193]. See Paone, 782 F.2d at 393 (concluding that the court is "satisfied that Congressdid not intend to incorporate the various states' procedural and evidentiary rules into the RICO statute" and that "[t]he statute is meant to define, in a more generic sense, the wrongful conduct that constitutes the predicates for a federal racketeering charge"); see also Coonan, 938 F.2d at 1564 (alluding to Paone and its progeny). But see Peters v. Welsh Dev. Agency, No. 86 Civ. 2646, 1991 WL 172950, at *7 (N.D. Ill. Aug. 29, 1991) (asserting that allowing state law charges as predicate acts extends bounds of RICO too far).

[FN194]. See Orion Tire Corp. v. Goodyear Tire & Rubber Co., 268 F.3d 1133, 1137 (9th Cir. 2001) (opening possibility of using foreign law for predicate offenses).

[FN195]. See id. at 1137 (theorizing that Chinese law may be considered when interpreting intentions of RICO statute).

[FN196]. See N. S. Fin. Corp. v. Al Turki, 100 F.3d 1046, 1051 (2d Cir. 1996) (ascertaining whether Congress, under RICO, intended federal courts to extend jurisdiction over international controversies because RICO statute is textually silent regarding extraterritoriality).

[FN197]. See Alfadda v. Fenn, 935 F.2d 475, 479 (2d Cir. 1991) cert. denied, 419 U.S. 1105 (1975) (noting proposition that foreign corporations are not immune from RICO liability because they are not located within the United States (citing United States v. Parness, 503 F.2d 430 (2d Cir. 1974))).

[FN198]. See N. S. Fin. Corp., 100 F.3d at 1051 (expressing lack of definitive precedent regarding amounts of activity necessary for RICO subject matter jurisdiction).

[FN199]. See id. at 1051-52 (reiterating that extraterritorial jurisdiction is possible, but must meet standards of "conduct" and "effects" test).

[FN200]. United States v. Noriega, 746 F. Supp. 1506, 1516 (S.D. Fla. 1990) (concluding RICO applied extraterritorially).

[FN201]. Jose v. M/V Fir Grove, 801 F. Supp. 349 (D. Or. 1991).

[FN202]. See id. at 357 (asserting that unless Congress made its intentions clear within statutory language, it would not be considered to extend extraterritorially and emphasizing because RICO is silent on the matter, it should not be considered to extend extraterritorially).

[FN203]. Extraterritorial jurisdiction may be established under RICO claims, but delicate prerequisites must first be solidified. There are two tests that have been developed to examine whether jurisdiction may be extended extraterritorially: the "effects" test and the "conducts" test. See generally N. S. Fin. Corp. v. Al Turki, 100 F.3d 1046, 1052 (2d Cir. 1996).

[FN204]. See United States v. Bowman, 260 U.S. 94, 97-98 (1922) (advocating broad statutory interpretation in federal criminal cases regarding offenses not necessarily confined to local territory, such as those that may make the United States vulnerable by acting on the high seas or in foreign countries).

[FN205]. See United States v. Layton, 509 F. Supp. 212, 217-18 (N.D. Cal. 1981) (advancing that extraterritorial jurisdiction may be inferred by courts when statutes represent vulnerabilities to the United States if only construed as permitting domestic jurisdiction).

[FN206]. N. S. Fin. Corp., 100 F.3d at 1052 (recognizing that there is little caselaw within the circuit regarding extraterritorial application using RICO and that, accordingly, the court relies on precedent from international securities and antitrust matters).

[FN207]. Id. at 1052 (suggesting that substantive law must be carefully scrutinized by courts to determine whether each particular statute suggests extraterritorial jurisdiction).

[FN208]. See 18 U.S.C. § 1961(1)(D) (2005) (including "fraud in the sale of securities" in definition of "racketeering activity" for purposes of RICO).

[FN209]. See Itoba Ltd. v. LEP Group PLC, 54 F.3d 118, 121-22 (2d Cir. 1995) (holding that although the Securities Exchange Act itself does not express extraterritorial jurisdiction, courts have surmised that it does based upon jurisdictional tests).

[FN210]. The court in Alfadda held that the possibility for RICO to extend extraterritorially should be extended because the act is based upon a pattern of racketeering activity, which may include securities or antitrust violations. Both securities and antitrust violations must surpass either the "conduct" or the "effects" test for application of extraterritorial jurisdiction. Accordingly, RICO must, at least, pass these tests. See Alfadda v. Fenn, 935 F.2d 475, 479 (2d Cir. 1991).

[FN211]. See N. S. Fin. Corp. v. Al Turki, 100 F.3d 1046, 1052 (2d Cir. 1996) (qualifying use of securities and antitrust violations as RICO predicates because tests regarding former acts were developed specifically with them in mind and noting that because RICO is a different statute with different congressional intent, it must be approached differently).

[FN212]. Psimenos v. E.F. Hutton & Co., 722 F.2d 1041, 1046 (2d Cir. 1983) (quoting Bersch v. Drexel Firestone, Inc., 519 F.2d 974, 993 (2d Cir. 1975)).

[FN213]. Consol. Gold Fields PLC v. Minorco, S.A., 871 F.2d 252, 261-62 (2d Cir. 1989).

[FN214]. See Itoba Ltd. v. LEP Group PLC, 54 F.3d 118, 122 (2d Cir. 1995) (highlighting two jurisdictional tests).

[FN215]. See Alfadda, 935 F.2d at 479 (opening possibility that extraterritorial jurisdictional tests will be used as predicates for securities and antitrust violations in RICO violations). But see N. S. Fin. Corp., 100 F.3d at 1052 (distingushing line between intent for extraterritorial jurisdiction with securities and antitrust violations and intent in RICO).

[FN216]. Psimenos, 722 F.2d at 1046 (quoting Bersch, 519 F.2d at 993).

[FN217]. See Bersch v. Drexel Firestone, Inc., 519 F.2d 974, 987 (holding that jurisdiction will not be taken when acts in country are "merely preparatory or take the form of culpable nonfeasance and are relatively small in comparison to those abroad").

[FN218]. See Leasco Data Processing Equip. Corp. v. Maxwell, 468 F.2d 1326, 1334-35 (2d Cir. 1972) (recalling that defendants made telephone calls and mailed fraudulent statements within the U.S.).

[FN219]. See Psimenos v. E.F. Hutton & Co., 722 F.2d 1041, 1046 (2d Cir. 1983) (upholding jurisdiction where fraudulent acts were committed in Greece and contracts executed in New York).

[FN220]. Id. at 1043.

[FN221]. Id. at 1044 (highlighting that trading contracts were often executed in New York).

[FN222]. Id. at 1043 (recalling that defendant was Delaware corporation with its principal place of business in New York).

[FN223]. Id. at 1046 (finding potential use of United States commodities markets as place to commit improprieties persuasive in determining jurisdiction).

[FN224]. Psimenos v. E.F. Hutton & Co., 722 F.2d 1041, 1047 (2d Cir. 1983) (holding foreigners have standing to bring claims of breach of U.S. securities laws).

[FN225]. Id. at 1024.

[FN226]. Mormels v. Girofinance, S.A., 544 F.Supp. 815, 817 n.8 (1982) (noting proposition that "securities cases and principles are used as persuasive aids to interpretation of the C[ommidities] E[xchange] A[ct]") (citing Miller v. New York Produce Exchange, 550 F.2d 762, 769 n.4 (2d Cir. 1977), cert denied, 434 U.S. 823, 54 (1977) and CFTC v. J.S. Love & Assoc. Options Ltd., 422 F. Supp. 652, 660 (S.D.N.Y. 1976))

[FN227]. ITT v. Vencap, Ltd., 519 F.2d 1001, 1017 (2d Cir. 1975).

[FN228]. N. S. Fin. Corp. v. Al-Turki, 100 F.3d 1046, 1051 (2d Cir. 1996) (quoting Consol. Gold Fields PLC v. Minorco, S.A., 871 F.2d 252, 261- 62 (2d Cir. 1989)).

[FN229]. N. S. Fin. Corp., 100 F.3d at 1052 (citing United States v. Aluminum Co. of Am., 148 F.2d 416, 443-44 (2d Cir. 1945)); see Hartford Fire Ins. Co. v. California, 509 U.S. 764, 798 (1993) (rejecting argument that international comity prevents U.S. courts from taking jurisdiction over overseas parties who conspire to restrain illegally interstate or foreign commerce in the United States).

[FN230]. Nat'l Bank of Canada v. Interbank Card Ass'n., 666 F.2d 6, 8 (2d Cir. 1981).

[FN231]. Madanes v. Madanes, 981 F. Supp. 241, 250 (S.D.N.Y. 1997).

[FN232]. Teleology, or final causality, is the ultimate reason for a thing's becoming. The final cause of a child, for example, is an adult. Likewise, the teleology of a law is its ultimate purpose. When we know a law's reason, the goal it seeks to accomplish, in addition to its historical or textual interpretation, we can understand that law in its proper context. Merriam-Webster Online defines teleology as "the fact or character attributed to nature or natural processes of being directed toward an end or shaped by a purpose." Merriam-Webster Online Dictionary, http://www.m-w.com/dictionary/teleology (last visited Jan. 20, 200).

[FN233]. See United States v. Pac. & Arctic Ry. & Navigation Co., 228 U.S. 87, 106 (1913) (upholding jurisdiction for violations of Sherman Antitrust Act and Interstate Commerce Act on shipping routes outside of the U.S.).

[FN234]. See Alfadda v. Fenn, 935 F.2d 475, 477-80 (2d Cir. 1991) (stating that foreign violation of Securities Exchange Act and RICO may serve as basis of subject matter jurisdiction even though these statutes are silent as to extraterritorial application).

[FN235]. See id. at 480. (holding that securities fraud violation may serve as predicate act justifying RICO claim)

[FN236]. Literally, the Latin phrase a maiore ad minus, a simili, a pari means "from the greater to the lesser, similarities or differences." Sir Edward Coke, A Commentarie Upon Littleton, http:// www.la.utexas.edu/research/poltheory/coke/coke.pa01.c01.s03.html (last visited Jan. 20, 2006). In other words, the greater includes the lesser. Thus, if the substantive offense has extraterritorial effect then RICO also has extraterritorial application, at least as to that offense.

[FN237]. Cuban Liberty and Democratic Solidarity (LIBERTAD or Helms-Burton) Act of 1996, Pub.L. 104-114, 110 Stat. 785 (codified as amended in 22 U.S.C. §§ 6021-6091).

[FN238]. 22 U.S.C. § 6082 (a) (2005) (providing civil remedy for U.S. nationals whose property was confiscated by Cuban Government and then sold to third party).

[FN239]. 22 U.S.C. § 6082 (a)(3)(C) (2005) (delineating recovery scheme which triples initial damages available in earlier section).

[FN240]. See S. Kern Alexander, Trafficking in Confiscated Cuban Property: Lender Liability Under the Helms-Burton Act and Customary International Law, 16 Dick. J. Int'l L. 523, 561 (1998) (positing that United States has extended extraterritorial reach under Helms-Burton to such extent that it violates international law.)

[FN241]. See Melysa Sperber, Foreign Corrupt Practices Act, 39 Am. Crim. L. Rev. 679, 680-81 (2002) (commenting that 1998 Amendments to FCPA broadened the Act's jurisdiction to allow prosecution of foreign offenders).

[FN242]. Id. at 686 (stating that FCPA prohibits bribery of foreign government officials in order to obtain or retain business).

[FN243]. Id. at 687 (finding that FCPA covers any act person, foreign or national, who commits bribery within U.S.).

[FN244]. See Kathleen A. Lacey & Barbara Crutchfield George, Crackdown on Money Laundering: A Comparative Analysis of Feasibility and Effectiveness of Domestic and Multilateral Policy Reforms, 23 Nw. J. Int'l L. & Bus. 263, 265 (2003) (noting international economic impact of corrupt business practices).

[FN245]. Hecht v. Commerce Clearing House, 897 F.2d 21, 23 (2d Cir. 1990) (quoting 18 U.S.C. § 1964(c) (1988)).

[FN246]. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 497 (1985) (holding that injuries proximately caused by forbidden conduct under RICO are compensable).

[FN247]. See First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 769 (2d Cir. 1994) (explaining "proximate" or "legal" cause required in RICO cases).

[FN248]. See Beck v. Prupis, 529 U.S. 494, 505-06 (2000) (concluding, in congruence with common-law tort principles that recovery under RICO is limited to injuries caused by conduct forbidden by RICO).

[FN249]. See De Falco v. Dirie, 923 F. Supp. 473, 476 (S.D.N.Y. 1996) (explaining how to satisfy injury to business or property requirement for RICO violation).

[FN250]. Hecht v. Commerce Clearing House, 897 F.2d 21, 23-24 (2d Cir. 1990) (defining proximate cause).

[FN251]. See 18 U.S.C. § 1964 (2005) (listing civil remedies such as treble damages).

[FN252]. See 18 U.S.C. § 1963 (2005) (listing criminal penalties such as forfeiture).

[FN253]. RICO provides:

[FN254]. See 18 U.S.C. § 1964(a) (2005) (specifying that "whoever violates any provision of section 1962 of this chapter... shall be fined under this title or imprisoned not more than 20 years (or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment), or both...").

[FN255]. See Volkher Behr, Punitive Damages in American and German Law - Tendencies Towards Approximation of Apparently Irreconcilable Concepts, 78 Chi-Kent L. Rev. 105, 106 (2003) (stating that in German law, punitive damages are seen as function of criminal law because they punish the wrongdoer as opposed to compensating the plaintiff).

[FN256]. Punitive damages are not recognized in French law. See C. civ. § 1382 (1995). Secton 1382 requires the tortfeasor to simply "make reparation [s];" thus, it suggests that the tortfeasor is liability for only compensatory damages. Additionally, German civil law only requires a tortfeasor to "indemnify" the plaintiff. See §§ 249-255 BGB. It defines "indemnity" as "restor[ing] the condition, which would exist if the circumstance causing the indemnity had not occurred." Punitive damages for torts are a specificity of the common law. For an explanation of the evolution of punitive damages in torts see Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 283-99 (1989) (O'Connor, J., dissenting).

[FN257]. See N.S. Fin. Corp. v. Al-Turki, 100 F.3d 1046, 1052 (2d Cir. 1996) (noting that extraterritorial application of RICO is "delicate work" due to comity concerns).

[FN258]. See 18 U.S.C. § 1964(c) (2005) (allowing for treble damages).

[FN259]. See N.S. Fin. Corp., 100 F.3d at 1052 (expressing comity concerns over application of criminal aspects of RICO due to treble damages).

[FN260]. The Germans regard such claims as criminal, and not civil, because they lead to the overcompensation of plaintiffs. See Behr, supra note 255, at 108. "Thus, to this day, American punitive damage awards are not enforced in Germany." Id.

[FN261]. See George L. Priest, Lawyers, Liability, and Law Reform: Effects on American Economic Growth and Trade Competitiveness, 71 Denv. U. L. Rev. 115, 147 (1993) (noting sexual assault case where German court refused to enforce punitive damages on public policy grounds, but awarded medical expenses and pain and suffering damages).

[FN262]. See 18 U.S.C. § 1964(a) (2005). "Whoever violates any provision of section 1962 of this chapter... shall be fined under this title or imprisoned not more than 20 years (or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment), or both...." Id.

[FN263]. 56 Fed. Appx. 40 (2d Cir. 2003).

[FN264]. 18 U.S.C. § 981 (2005).

[FN265]. See Approximately $25,829,681.80 in Funds, 56 Fed. Appx. at 41 (holding that court had jurisdiction over funds in controversy).

[FN266]. See U.S. v. Approximately $25,829,681.80 in Funds, No. 98 Civ. 2682, 1999 U.S. Dist. LEXIS 18499, at *13-14 (S.D.N.Y. 1999) (using RICO analogy to establish jurisdiction over forfeiture action at bar).

[FN267]. See supra text accompanying notes 79-80 (discussing RICO in the context of ATCA).

[FN268]. 226 F.3d 88, 93-94 (2d Cir. 2000) (discussing trial level proceeding).

[FN269]. See id. at 92-93 (describing facts of case).

[FN270]. See id. at 108 (remanding case for further proceedings).

[FN271]. See id. at 101 (citing PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 74 (2d Cir. 1998)).

[FN272]. See Doe v. Unocal Corp., 110 F. Supp. 2d 1294, 1303 (2000) (stating plaintiff's allegation of RICO violation).

[FN273]. See id. at 1295-1303 (describing Unocal's relationship with Burmese security forces that utilized forced labor).

[FN274]. See Forti v. Suarez-Mason, 672 F. Supp. 1531, 1549 (N.D. Cal. 1987) (discussing recognition and application of equitable tolling of statutes of limitations with respect to federal claims where it is in the interest of justice), pet. for extradition sub nom. In re Requested Extradition of Suarez-Mason, 694 F. Supp. 676, 679-80 (N.D. Cal. 1988) (granting Argentina's request for respondent's extradition on thirtynine murder charges, also granting extradition on forgery charge, but denying petition for writ of habeas corpus), reconsideration granted in part and denied in part, 694 F. Supp. 707, 712 (N.D. Cal.1988) (granting leave to file Second Amended Complaint including allegations of "Disappearance and Presumed Summary Execution" and "Torture or other Cruel, Inhuman or Degrading Treatment").

[FN275]. Organization of American States: Inter-American Convention Against Corruption, Mar. 29, 1996, 35 I.L.M. 724 [hereinafter Inter-American Convention] (creating treaty among Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guyana, Haiti, Hondura, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Pery, Suriname, Uruguay, and Venezuela).

[FN276]. Argentina-Brazil-Bulgaria-Chile-Slovak Republic-Organization for Economic Cooperation and Development: Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Dec. 18, 1998, 37 I.L.M. 1 [hereinafter Convention Combating Bribery] (stating its purpose to criminalize bribery because it undermines both good governance and economic development, as well as, distorts international competitive conditions).

[FN277]. See Breton Woods Project, http:// www.brettonwoodsproject.org/project/index.shtml (last visited Jan. 20, 2006) (stating "Bretton Woods Project operates as a networker, information-provider, media informant and watchdog to scrutinize and influence the World Bank and International Monetary Fund."); see also International Covenant on Economic, Social and Cultural Rights art. 2(1), Dec. 16, 1966, available at http:// www.unhchr.ch/html/menu3/b/a_cescr.htm (providing each state party will "take steps, individually and through international assistance and co-operation" to achieve rights recognized by Covenant). See generally Dinah Shelton, Protecting Human Rights in a Globalized World, 25 B.C. Int'l & Comp. L. Rev. 273, 304-05 (2002) (suggesting that in accordance to International Covenant on Economic, Social and Cultural Rights art.2(1), voting in World Bank or International Monetary Fund for human rights programs promoting regression would violate voters' obligations).

[FN278]. See Alejandro Posadas, Combating Corruption Under International Law, 10 Duke J. Comp. & Int'l L. 345, 347 (2000) (discussing World Bank Group's involvement in combating corruption under international law).

[FN279]. See id. at 399-400 (stating that World Bank and International Monetary Fund took active roles against corruption in mid 1990's only after emergence of anti-corruption initiatives).

[FN280]. Foreign Corrupt Practices (FCPA) Act of 1977, Pub. L. No. 95- 213, 91 Stat. 1494 (1977) (amending Securities Exchange Act of 1934 so that those individuals paying foreign officials and other foreign persons are required to maintain accurate records).

[FN281]. 17 C.F.R. § 240.17a-3 (2005) (mandating that national securities exchange members shall keep current employment records including any arrests or indictment for bribery).

[FN282]. See Posadas, supra note 278, at 346 (reiterating Security Exchange Commission's contention that unaccountably distributing money abroad through "secret slush funds" contravenes United States securities law, which requires public companies to file accurate financial statements).

[FN283]. Partnership Agreement Between the Members of the African, Caribbean and Pacific Group of States of the One Part, and the European Community and its Member States, of the Other Part, Signed in Cotonou on 23 June 2000, Chapter 1 art. 1, art. 3,) (stating "good governance, which underpins the ACP-EU Partnership, shall underpin the domestic and international policies of the Parties and constitute a fundamental element of this Agreement. The Parties agree that only serious cases of corruption, including acts of bribery leading to such corruption, as defined in Article 97 constitute a violation of that element.").

[FN284]. See Ndiva Kofele-Kale, The Right to a Corruption-Free Society as an Individual and Collective Human Right: Elevating Official Corruption to a Crime Under International Law, 34 Int'l Law. 149, 155-56 (2000) (arguing that Article Three of Convention Combating Bribery proscribes intentionally receiving undue advantage from foreign public officials).

[FN285]. Convention Combating Bribery, supra note 276 (criminalizing bribery of foreign public officials).

[FN286]. See Morgan & O'Grady, supra note 243 (advancing that regardless of whether companies are publicly traded, they are prohibited from bribing foreign officials to gain or retain business).

[FN287]. See Sperber, supra note 241, at 686 (furthering it is also illegal to bribe foreign government officials for purpose of directing business to another person under FCPA).

[FN288]. See id. at 699 (delineating penalties for bribing foreign officials and citing example as those who willfully violate FCPA accounting provisions may be punished by fines up to $ 1,000,000 and may be jailed for up to ten years).

[FN289]. See id. at 700 (warning that a likely result of a violation of the FCPA is debarment before several government agencies).

[FN290]. See Scientific Drilling Int'l, Inc. v. Gyrodata Corp., No. 90- 1077, 1999 U.S. App. LEXIS 20790, at *8 (Fed. Cir. Aug. 30, 1999) (explaining that Congress created enforcement scheme for FCPA and gave Attorney General authority to file actions for injunctive relief, civil, or criminal penalties).

[FN291]. Id. at *7 (dismissing Gyrodata Corp's counterclaim because FCPA does not grant private cause of action).

[FN292]. See id. at *7-*8 (explaining that legislative history of FCPA gives credence both to permitting private claims, as well as prohibiting them, and, therefore, it does not assist discovery of congressional intent).

[FN293]. See id. at *7 (acknowledging that defendant's legislative history argument is not conclusive as FCPA's legislative also offers equal support for opposite contention).

[FN294]. See id. at *8-*9 (finding that lack of creation of explicit private cause of action under FCPA is conclusive evidence that Congress meant to exclude such right).

[FN295]. Scientific Drilling Int'l, Inc. v. Gyrodata Corp., No. 90-1077, 1999 U.S. App. LEXIS 20790, at *8 (Fed. Cir. Aug. 30, 1999) (explaining irreconcilability of private cause of action under FCPA due to its explicit text granting right to bring suit to Attorney General).

[FN296]. United States Foreign Sovereign Immunities Act of 1976 § 1603(d)- (e) (1988), available at http:// www.law.berkeley.edu/faculty/ddcaron/Documents/RPID20Documents/rp04039.html (defining international commercial activity as "regular course of commercial conduct or a particular commercial transaction or act" where the United States has substantial contact with another nation).

[FN297]. See Adler v. Federal Republic of Nigeria, 219 F.3d 869, 871 (9th Cir. 2000) (holding that illegal contract was actionable pursuant to Foreign Sovereign Immunities Act because it constituted commercial activity), amended by No. 98-55456, 2000 U.S. App. LEXIS 20687, at *4 (9th Cir. Aug. 17, 2000) (noting definition of "commercial activity" in previous case was erroneous since Supreme Court ruled that "question is not whether the foreign government is acting... with the aim of fulfilling uniquely sovereign activities").

[FN298]. Id. at 876-77 (explaining that doctrine of unclean hands "closes the doors of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behaviour of the defendant").

[FN299]. See Time Warner Cable of NYC v. Kline Davis and Mann, Inc., No. 00 Civ. 2897, 2000 U.S. Dist. LEXIS 18280, at *9-*10 (S.D.N.Y. 2000) (stating statutory damages are punitive and are, thus, legal, not equitable, remedies).

[FN300]. See Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 244 (1933) (explaining that fundamental principle of equity jurisprudence is that plaintiffs have "clean hands" before coming into court).

[FN301]. See Scientific Drilling Int'l, Inc. v. Gyrodata Corp., No. 90- 1077, 1999 U.S. App. LEXIS 20790, at *7-* 8 (Fed. Cir. Aug. 30, 1999) (acknowledging that one can opt to use legislative history of FCPA to support existence of private rights of action under FCPA).

[FN302]. Id. at *7 (citing H.R. Rep. No. 95-640, at 10 (1977)).

[FN303]. Id. at *8 (arguing that FCPA is for Securities and Exchange Commission and Justice Department to enforce with no right to a private cause of action (citing 123 Cong. Rec. 38, 778 (1977)).

[FN304]. Id. at *8-*9 (stating that FCPA's structure, which consists of detailed enforcement schemes, tends to negate possibility of implicit remedies).

[FN305]. Id. at *8 (finding that lack of explicit private remedy implies that no private right was intended).

[FN306]. Expressio unius is defined as a "canon of construction holding that to express or include one thing implies the exclusion of the other." Black's Law Dictionary 265 (2d pocket ed. 2001).

[FN307]. See Daniel Pines, Amending the Foreign Corrupt Practices Act to Include a Right of Private Action, 82 Cal. L. Rev. 185, 216 (1994) (explaining that government agencies have failed to enforce the vague terms of FCPA and that a possible solution would be to create private cause of action for general public for violations of Act).

[FN308]. In a similar context, Robert J. Liubicic describes the former Secretary of Labor's recognition that private enforcement via private action may be more effective since it relies on the self interest of the corporation and argues that corporations can be encouraged to compete against each other through the pointing out of their competitors' human rights violations. See Robert J. Liubicic, Corporate Codes Of Conduct And Product Labelling Schemes: The Limits And Possibilities Of Promoting International Labor Rights Trough Private Initiatives, 30 Law & Pol'y Int'l Bus. 111, 121-22 (1998).

[FN309]. See Sperber, supra note 241, at 692 (explaining that the DOJ and SEC are "solely responsible" for enforcing FCPA).

[FN310]. See Lamb v. Phillip Morris, Inc., 915 F.2d 1024, 1027-30 (6th Cir. 1990) (explaining that private action is not recognized under FCPA as it is inconsistent with its legislative scheme, it is not in congressional intent behind enactment of FCPA, and the FCPA provides adequate means of redress in the private realm).

[FN311]. See Envtl. Tectonics v. W.S. Kirkpatrick, Inc., 847 F.2d 1052, 1063-64 (3d Cir. 1988) (allowing evidence of violations of the FCPA admissible for evidence of racketeering); see also United States v. Young & Rubicam, Inc., 741 F. Supp. 334, 339 (D. Conn. 1990) (holding, as valid, violations of the Travel Act based upon violations of FCPA); Korea Supply Co. v. Lockheed Martin Corp., 90 Cal. App. 4th 902, 909 (Cal. Ct. App. 2001) (finding permissible private unfair competition claims based upon allegations of FCPA violations).

[FN312]. 28 U.S.C. § 1350 (2001) (giving US district courts original jurisdiction for torts committed in violation of laws of nations or treaties by aliens and allowing civil suit for damages against individuals under actual or apparent authority of foreign nations that subject individuals to torture or extrajudicial killing).

[FN313]. See Christopher J. Duncan, The 1998 Foreign Corrupt Practices Act Amendments: Moral Empiricism or Moral Imperialism?, 1 Asian-Pac. L. & Pol'y J. 16, *1-*5 (2000) (stating that objection stems from different customs and values in other nations, such as gift giving in Asian countries).

[FN314]. See Inter-American Convention, supra note 198, at 724, 729-30 (providing agreement, among Central and South American countries, to establish measures preventing corruption, including bribery, and allowing each member state to establish jurisdiction for offenses committed in its territory or offenders located in its territory).

[FN315]. See Convention Combating Bribery, supra note 273, at 1, 4 (providing criminal penalties among agreeing countries for bribery of foreign officials in international business transactions).

[FN316]. See Sperber, supra note 241, at 696 (noting that European Union has adopted "Convention on the Fight Against Corruption Involving Officials of the European Communities or Officials of Member States of the European Union," prohibiting bribery of public officials within European Union).

[FN317]. But see Philip M. Nichols, Outlawing Transnational Bribery Through The World Trade Organization, 28 Law & Pol'y Int'l Bus. 305, 306 (1997) (describing that problem with current international laws against bribery is that most countries have laws prohibiting payment of bribes to its officials, but only two countries make it illegal to make transactional bribes).

[FN318]. See Sperber, supra note 241, at 695-96 (describing that objective of UN resolutions is to have its member states criminalize payment of bribes and to deny tax deductibility of bribes).

[FN319]. See H. Lowell Brown, Extraterritorial Jurisdiction Under the 1998 Amendments to the Foreign Corrupt Practices Act: Does the Government's Reach Now Exceed its Grasp?, 26 N.C. J. Int'l L. & Com. Reg. 239, 297-302 (2001) (explaining that 1998 FCPA amendments give US extraterritorial jurisdiction, but such jurisdiction must be exercised with reasonableness, taking into account foreign states interests).

[FN320]. SEC v. Montedison, S.p.A., Lit. Release No. 15164, 1996 WL 673757 (D.D.C. 1996).

[FN321]. 15 U.S.C. §§ 78a, 78dd-1, 78dd-2, 78ff (1998).

[FN322]. See Montedison, 1996 WL at (explaining the charges against Montedison were, among other things, falsifying documents to artificially inflate company's financial statements).

[FN323]. See Symposium, International Business Law: E-Commerce and the Impact of Globalization on the Law, 8 New Eng. Int'l & Comp. L. Ann. 19, 27-30 (2002) (outlining six basis for establishing jurisdiction of extranationals under international law, several of which bear resemblance to the concept of long arm jurisdiction).

[FN324]. See H. Lowell Brown, Extraterritorial Jurisdiction Under the 1998 Amendments to the Foreign Corrupt Practices Act: Does the Government's Reach Now Exceed its Grasp?, 26 N.C.J. Int'l L. & Com. Reg. 239, 289 (2001) (acknowledging that not all payments to officials are prohibited by the FCPA but rather only payments intended to secure markets or gain other improper advantages are prohibited).

[FN325]. See 15 U.S.C. § 78m (1998) (outlining accounting standards for persons and businesses involved in secutities exchange).

[FN326]. See SEC v. World-Wide Coin Invs., Ltd., 567 F. Supp. 724, 747 (N.D. Ga. 1983) (commenting that the FCPA gives the SEC greater involvement in all activities of the corporation).

[FN327]. See Barbara Crutchfield et al., Responsibilities of Domestic Corporate Management Under the Foreign Corrupt Practices Act, 31 Syracuse L. Rev. 865, 880 (1980) (positing that the "SEC may be changing from an agency that chiefly regulates the securities markets to a wide-reaching federal corporations commission").

[FN328]. See 69 Am Jur 2d SECURITIES REGULATION--FEDERAL § 577 (finding "the Exchange Act registration requirements apply, generally, to publicly-traded securities and require current information to be available to the marketplace in which such securities are traded").

[FN329]. Brown, supra note 324, at 258-59 (acknowledging that Congress must address issue of bribery internationally if it were to have any effect).

[FN330]. See Diane P. Caggiano, The Foreign Corrupt Practices Act: The Case for Multilateral Cooperation, 5 N. Eng. Int'l & Comp. L. Ann. 277 (1999), available at http://www.nesl.edu/intljournal/vol5/caggiano.htm (delineating the criticisms of the FCPA such as problems with enforcement, cost of compliance, vagueness, among others).

[FN331]. For the health of the republic.
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