Two New Articles On “Morrison v. National Australia Bank”

Readers may be interested in two new articles posted on SSRN analyzing the U.S. Supreme Court decision in Morrison v. National Australia Bank [pdf], which held that U.S. law prohibiting securities fraud does not apply to investment deals occurring outside the country, even if those investment deals have a domestic effect.

The first by Linda Silberman (New York University School of Law) is entitled “Morrison v. National Australia Bank: Implications for Global Securities Class Actions”, Swiss Yearbook of Private International Law 2010/NYU School of Law, Public Law Research Paper No. 11-41. The abstract reads:

The recent U.S. Supreme Court decision in Morrison v. National Australia Bank has had a significant impact on the extraterritorial reach of the U.S. Securities Laws as well as a limitating global class actions. Other countries have begun to fill a perceived gap with respect to such class actions, as the recent Converium case in the Netherlands and the Imax decision in Canada illustrate. In addition to thosse developments, the article discusses various post-Morrison developments in the United States, including the recent Dodd-Frank legislation, the possibility of bringing claims in the United States under foreign law, lower court interpretations of Morrison, including off-exchange case law. The author concludes with a call for increased regulatory cooperation as well as the need for an international treaty.

The second by Michelle K. Fiechter is entitled “Extraterritorial Application of the Alien Tort Statute: The Effect of Morrison v. National Bank of Australia, Ltd. on Future Litigation” , Iowa Law Review, Vol. 97, No. 2, 2011. The abstract reads:

In Morrison v. National Bank of Australia, Ltd., the Supreme Court issued an opinion holding that when addressing issues of prescriptive jurisdiction, courts are to presume that Congress only writes laws for domestic application. This Note takes a look at the Alien Tort Statute, a statute that courts have been applying extraterritorially since 1789. This Note addresses what effect, if any, the Morrison decision will have on ATS litigation. Because the presumption against extraterritoriality is a rebuttable one, this Note argues that the context in which the First Congress enacted the Alien Tort Statute provides enough evidence to overcome the presumption of domestic application. Therefore, Morrison will have little, if any, effect on the future of the ATS.

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