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Article

Lianlian Liu

The issue of concurrent jurisdiction over cross-border crimes has become common in a globalizing world, while the rigid compliance with territoriality and active…

Abstract

Purpose

The issue of concurrent jurisdiction over cross-border crimes has become common in a globalizing world, while the rigid compliance with territoriality and active personality jurisdiction has created a legal vacuum for cross-border crimes in many situations. The jurisdiction dispute between mainland China and Taiwan over cross-border telecom fraud crimes is a good example. In recent years, the Ministry of Public Security of the People’s Republic of China cracked down a series of cross-border telecom fraud crimes against mainland residents and extradited suspects to mainland China. Given a certain proportion of Taiwan residents in criminal gangs, the Taiwan side raised jurisdiction objections, arguing that mainland China had no right to exercise jurisdiction over Taiwanese criminals. The essence of the jurisdiction dispute between two sides is the concurrence of Taiwan’s right to exercise active personality jurisdiction and the mainland’s right to exercise passive personality jurisdiction. The purpose of this paper is to analyze the connotation of different jurisdiction principles (namely, territorial, active personality, protective and passive personality jurisdiction) and reinterpret their prioritization of applicability from a jurisprudential perspective, and thus, enhance the theoretical basis for resolving the issue of concurrent jurisdiction over cross-border crimes.

Design/methodology/approach

By reviewing the historical trajectory of major jurisdiction principles since the 1920s, and studying the specificities of the case in this context, this paper argues that territorial jurisdiction and active personality jurisdiction have presumed priority but not an absolute priority for resolving the issue of concurrent jurisdiction. The applicability of protective and passive personality jurisdiction could precede the former provided the jurisdictions of territoriality or active personality are inadequate, incompetent or lack of motivation to combat crimes, which harm other jurisdictions.

Findings

The developmental trajectory and contemporary connotation of major jurisdiction principles suggests that the legitimacy of the mainland’s exercise of passive personality jurisdiction over Taiwan criminal suspects lies in the urgent need to recover mainland victims’ significant property loss, the incompetence of Taiwan in detecting and prosecuting telecom fraud crimes committed by Taiwanese residents and targeting mainland victims and that the mainland has guaranteed the Taiwan side’s right to be timely informed and fully participate in its exercise of criminal jurisdiction over crimes involving Taiwan suspects.

Originality/value

Current literature on jurisdiction doctrines mainly uses a historical or descriptive approach to reveal the attitudes of different countries toward jurisdiction principles, which helps little in resolving the issue of concurrent jurisdiction over cross-border crimes in an era of globalization. This paper uses an interpretative approach, reinterprets the contemporary connotation of different jurisdiction principles and redefines the criteria for determining their prioritization in the context of the specificities of a case. It is expected to update the academic literature for resolving concurrent jurisdiction, fill the legal vacuum for combating cross-border crimes created by rigid compliance with territorial jurisdiction, and meanwhile relieve concerns about abuse of extraterritorial jurisdiction as it provides concrete standards for weighting the applicability of jurisdiction principles.

Details

Journal of Financial Crime, vol. ahead-of-print no. ahead-of-print
Type: Research Article
ISSN: 1359-0790

Keywords

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Article

Chat Le Nguyen

The purpose of this paper is to examine the international standards for establishing national jurisdiction over the transnational crimes of money laundering and bribery…

Abstract

Purpose

The purpose of this paper is to examine the international standards for establishing national jurisdiction over the transnational crimes of money laundering and bribery and identify challenges to the adoption of those standards by different states in practice.

Design/methodology/approach

This paper, first, defines transnational money laundering and transnational bribery; then, it examines the legal bases and principles on which a state can claim criminal jurisdiction over these offences. This paper also discusses the application of jurisdictional conditions in a transnational context and how to deal with the problems arising from national claim of jurisdiction over these offences, for example, jurisdictional concurrence.

Findings

This paper argues that when the jurisdictional concurrence occurs, the involved states should consult one another by taking into account a number of relevant factors and take the “centre of gravity” approach to deciding which state or forum should prosecute eventually. States less able to establish jurisdiction over the offences are often those which have a weak legal basis and/or insufficient resources.

Originality/value

To the authors’ knowledge, this article would be the good guidance on how a state could claim jurisdiction over the offences of transnational money laundering and transnational bribery.

Details

Journal of Financial Crime, vol. 27 no. 4
Type: Research Article
ISSN: 1359-0790

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Article

Ankesh Jain

The purpose of this paper is to find out the jurisdictional power of the Competition Commission of India (CCI) in order to entertain the combinations taking place outside…

Abstract

Purpose

The purpose of this paper is to find out the jurisdictional power of the Competition Commission of India (CCI) in order to entertain the combinations taking place outside India having an impact on India.

Design/methodology/approach

The author has established, with the help of varied case laws, that CCI has jurisdiction over the combinations taking place outside India and it is supported by the “Effect Doctrine” and the “Doctrine of Minimum Contact”.

Findings

Merger and Acquisition is a buzzword for the growth of international trade and all the countries want to secure their interest. By looking at that, it is argued and suggested in this paper that CCI can take jurisdiction on the above combination when it has any impact on the Indian economy.

Research limitations/implications

There is a scarcity of data available in the public domain and, with the CCI being in its nascent stage, it is suggested that how and in which situations the Commission will invoke its jurisdiction.

Social implications

This research will help in protecting the interest of the domestic conglomerates and small businesses in India, as there will be a check system established by the CCI on all the combinations having an impact on the Indian market and economy.

Originality/value

This paper has tried to establish the extra‐territorial jurisdiction of the Competition Commission of India, which was not available to any authority in India prior to the enactment of the Competition Act in 2002. It will help the Indian economy and market to grow in a structured manner and protect it from the combinations taking place outside India having an adverse impact.

Details

Journal of Financial Crime, vol. 19 no. 1
Type: Research Article
ISSN: 1359-0790

Keywords

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Article

Tyler W. Hodgson

The purpose of this paper is to explore the development of the common law test for asserting criminal jurisdiction over financial crimes. Historically, the British courts…

Abstract

Purpose

The purpose of this paper is to explore the development of the common law test for asserting criminal jurisdiction over financial crimes. Historically, the British courts at the turn of the twentieth century strongly advocated the territoriality principle to strictly limit the assumption of criminal jurisdiction to crimes which occurred entirely within the jurisdiction. With the rapid advance of telecommunications technologies during the latter half of the century, such a narrow approach to jurisdiction became unworkable, as the majority of financial crimes assumed multi‐jurisdictional aspects.

Design/methodology/approach

This paper traces the gradual liberalization of criminal jurisdiction over financial crime within the common law until the eventual emergence of the much more permissive comity theory of jurisdiction, which sanctions the assumption of criminal jurisdiction over any conduct which causes harmful consequences or effects in the territory of the country seeking to prosecute an accused.

Findings

While this is a welcome and necessary development in an age of global money laundering and organized crime, it is argued in this paper that unless a consistent and rational manner of prioritizing the claims of competing jurisdictions over the same criminal conduct is adopted, there is a risk that the first jurisdiction to be in a position to make an arrest may not necessarily be the correct or most appropriate one. As the double jeopardy principle operates to bar multiple prosecutions for the same criminal conduct, it is recommended that the doctrine of forum non conveniens, a familiar and developed concept in civil law, be applied to criminal prosecutions to maximize prosecutorial efficiency.

Originality/value

The paper is of value in discussing factors to be considered by law enforcement agencies in determining the most prudent sequence of legal proceedings that may be brought in different jurisdictions.

Details

Journal of Financial Crime, vol. 15 no. 3
Type: Research Article
ISSN: 1359-0790

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Book part

Lisa Hajjar

Utopia, a term first coined by Sir Thomas More in the sixteenth century, referred to a place of unattainable social perfection. But the appeal of a concept that embraces…

Abstract

Utopia, a term first coined by Sir Thomas More in the sixteenth century, referred to a place of unattainable social perfection. But the appeal of a concept that embraces rather than mocks the imagination has broadened its meanings and uses. In the early twentieth century, Anatole France wrote, “Out of generous dreams come beneficial realities. Utopia is the principle of all progress, and the essay into a better future.” In contemporary vernacular, utopia has come to refer not only to imagining perfection but cures for imperfection. By this definition, any struggle for rights could be conceived as utopian to the extent that it represents a desire to make the world a better place for the would-be beneficiaries. The utopianism of rights envisions conditions in which human dignity can be ensured and vulnerability minimized.

Details

Studies in Law, Politics and Society
Type: Book
ISBN: 978-1-84950-252-8

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Article

Norman Mugarura

The paper aims to argue the case for the introduction of a global anti‐money laundering (AML) court. The proposed court as an institution can engender a rule‐based ethos…

Abstract

Purpose

The paper aims to argue the case for the introduction of a global anti‐money laundering (AML) court. The proposed court as an institution can engender a rule‐based ethos as well as an environment for the transposition of AML regimes and requisite global changes into the society.

Design/methodology/approach

The paper was written by exploiting the significance of the court system to the development of any society. In particular, the paper draws on a pivotal role played by the European Court of Justice in enhancing economic integration of European member countries. Another example utilised by this paper was the dispute settlement mechanism (DSM) in the WTO. The DSM evolved an effective framework for settling international trade disputes and fundamentally helped to streamline the system. This paper is of the contention that the court would ease the adoption of global AML regimes and consequently ease the co‐existence of countries in relation to global AML initiatives.

Findings

The paper has delineated that any global initiatives either on money laundering (ML) or otherwise will have to reside in a form of institutional framework for them to work effectively. Short of that, it is possible that there will be enormous challenges for global AML regimes to function properly as envisaged.

Research limitations/implications

The author is cognizant of the fact that states are still mandated to veto his prepositions based on the principle of sovereignty of nations. States can also refuse to lend their support – in its various dimensions to the proposed court.

Practical implications

It has to be noted that creating global AML regimes that are not going to work is not good enough and in case it amounts to a wastage of scarce resources that would better be utilised somewhere else.

Social implications

ML in its various manifestations has far reaching consequences for lives of people wherever it is committed and should be accorded the seriousness it deserves.

Originality/value

The paper has been written based on the appreciation of the need to create enforcement mechanisms of engendered global AML/combating financing of terrorism (CFT) regimes. There are so many regimes masquerading as global, having been constituted with the mandate that give them a global reach and yet, they do not live up to their expectation.

Details

Journal of Money Laundering Control, vol. 14 no. 1
Type: Research Article
ISSN: 1368-5201

Keywords

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Article

Mohammad Mahabubur Rahman, Fariduddin Ahmed, Mohammad Osiur Rahman and Azizul Hoque

The purpose of this paper is to focus on how law, together with the internet, has created a new environment in the legal arena; and how the USA as a high‐tech nation…

Abstract

Purpose

The purpose of this paper is to focus on how law, together with the internet, has created a new environment in the legal arena; and how the USA as a high‐tech nation relying upon previous territorial experience is making a new pathway for all the concerned persons and organizations to overcome the problems that have come out of cyber peculiarity.

Design/methodology/approach

This article is based on keen observation and intensive analysis of the US case laws and practices. This article concentrates on the study of the American cases as a representative type of hi‐tech nations for searching the influences of traditional territorial concept on the settlement of internet cases.

Findings

In spite of the inevitability of a distinct set of laws and legal principles to be adopted for cyber offences, the traditional territorial law can provide elements for cyber‐legal issues. As for being a pioneer hi‐tech nation, the US courts, whether federal or provincial, are very much inclined to decide the internet cases on the basis of territorial concept by applying the principles of traditional territorial notions.

Originality/value

The judges, lawyers, jurists, governments, public authorities, local authorities, statutory bodies and all other persons and institutes concerned from around the world shall find indications to chalk out the framework of solution for cyber disputes from the US practices.

Details

Journal of International Trade Law and Policy, vol. 10 no. 2
Type: Research Article
ISSN: 1477-0024

Keywords

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Book part

Ellen S Podgor

This article begins by exploring the development of extraterritoriality in the United States. It notes the expansion of extraterritorial provisions within federal criminal…

Abstract

This article begins by exploring the development of extraterritoriality in the United States. It notes the expansion of extraterritorial provisions within federal criminal legislation and how these provisions permit prosecutors to proceed with criminal actions for conduct occurring outside this country. It also reflects on the use of an “objective territorial principle” by the judiciary, that permits criminal prosecutions whenever the conduct of the actor has a substantial effect in the United States. As an alternative to using “objective territoriality,” this article advocates for using a “defensive territoriality” approach. This article stresses the benefits of using a “defensive territoriality” approach to decide whether to prosecute an extraterritorial crime.

Details

Studies in Law, Politics and Society
Type: Book
ISBN: 978-1-84950-209-2

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Article

Georgios I. Zekos

Aim of the present monograph is the economic analysis of the role of MNEs regarding globalisation and digital economy and in parallel there is a reference and examination…

Abstract

Aim of the present monograph is the economic analysis of the role of MNEs regarding globalisation and digital economy and in parallel there is a reference and examination of some legal aspects concerning MNEs, cyberspace and e‐commerce as the means of expression of the digital economy. The whole effort of the author is focused on the examination of various aspects of MNEs and their impact upon globalisation and vice versa and how and if we are moving towards a global digital economy.

Details

Managerial Law, vol. 45 no. 1/2
Type: Research Article
ISSN: 0309-0558

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Article

Mohammad Mahabubur Rahman, Mohammad Aktaruzzaman Khan, Nour Mohammad and Mohammad Osiur Rahman

The purpose of this paper is to focus on existing law, the legal system and jurisprudence circling round territorial concepts.

Abstract

Purpose

The purpose of this paper is to focus on existing law, the legal system and jurisprudence circling round territorial concepts.

Design/methodology/approach

This paper is an opinion piece based on current and recent analysis of legal principle.

Findings

After the emergence of the internet as well as cyberspace, human activities are not confined solely to the physical world. They have been extended to a very different and peculiar non‐physical world. This world is everywhere and at the same time it is nowhere; and necessarily it is difficult to prescribe rules and enforce the same regarding cyberspace for its everywhere and nowhere proposition. The elementary concept of jurisprudence e.g. title, ownership and possession, etc. cannot be considered in the way we usually understand in case of real world. However, cyberspace has to be controlled by a legal framework that involves new ideas, leading to a new challenge in existing legal philosophy exclusively based on territorial concept.

Originality/value

Traditional territorial jurisprudence has to be revised in the light of cyber necessities arising out of high technological development. Moreover, certain new institutions have to be established in order to apply new principles in dispute settlement of cyber matters. This paper both identifies the need and options for the future.

Details

International Journal of Law and Management, vol. 51 no. 5
Type: Research Article
ISSN: 1754-243X

Keywords

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