How would you know if the court should apply foreign or local law?

Question

I have a question about laws in general. If someone were to get arrested in the United States for charges on misappropriation of trade secrets committed in Canada, would the court apply international (Canadian Law) or local (American Law)? The company headquarters is based in Delaware, and the person works in the Canadian portion of the company, and the alleged crimes were committed in Canada. The person was detained in the US, as he/she was travelling there for personal reasons and was spontaneously arrested. The defendant would be a Canadian Citizen.

I've done some research, and one of the reasons I'm asking this is that there are quite big differences between the 2 laws. In Canada, trade secret crimes are judged under common law, whilst in the US, it is judged under Federal Criminal Law. This is a big difference for the defendant and their families, especially with regards to detention in prisons.

I've also searched the wikipedia page of "Doctrine of International Comity", and "Conflict of Laws", however I couldn't really understand any of it, so that's why I'm asking here hoping y'all can explain it in simpler terms.

This is what I think is an important section under the wiki page, and hopefully you can help me decode it into language suitable for a grade 9 student.

"Comity," in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

I really appreciate anyone helping me out. I don't want to come out as lazy and making you guys do the research, but I would really appreciate it if you put it in simpler terms.

Thanks again, Jess <3

Answer 1

I had time to type up the answer for comity for you. However it and conflict of laws likely won't apply as her area typically principles of public international law.

International Comity

AKA "comity of nations," this is easily described as mutual respect and deference from one country to the laws of another. If a case is decided in a foreign court, a US court will refrain from reopening that case. An example is when a petitioner is asking the court to review the foreign court's decision or state it is unenforceable, etc.

In deciding whether to recognize the foreign court's decision, a US court would consider:

• Did the foreign court have personal jurisdiction over the defendant?
• Was due process generally followed?
• Is there any presence of fraud in the obtaining of the judgment?
• Does the judgment offend the public policy of the US jurisdiction?

The US has not signed any international agreements that compel enforcement if certain requirements are met, such as the Hague Convention on Foreign Judgments in Civil and Commercial Matters or the Brussels regime.

Simply put, it just means that a judgment in one country has a decent likelihood of being held enforced by the US the more that one country's legal system is like its own - in other words, fair, just, bound by the rule of law, etc.

Answer 2

Criminal courts always apply only their own penal laws. See, e.g., The Antelope, 23 U.S. 66 (1825); Loucks v. Standard Oil Co., 120 N.E. 198 (N.Y. 1918) ("The courts of no country execute the penal laws of another."); Restatement (Conflict of Laws) (1934) § 427 ("no state will punish a violation of the criminal law of another state."). The cases are old, but the rule remains nearly absolute to this day.

If you are arrested (assuming it isn't on an international warrant followed by extradition to a different forum), then it is a criminal case and the laws of the arresting jurisdiction would be applied.

Choice of law applies only in civil cases.

Answer 3

It's up to the court informed by the arguments of the prosecution and the defence.

Answer 4

Just a bit of confusion: The U.S. uses the Common Law system (as do a number of countries around the world, serving more than 1 billion people). Common Law is subdivided into criminal and civil law (little "c" civil law). In the U.S. this is further divided into Federal, State, and Local law. Federal Criminal Law means that the United States Government handles the criminal case, as opposed to the New York Criminal Law. Big "C" Civil Law is a legal system used by most of the mainland European Nations and has it's own set of rules for criminal law and little "c" civil law.

In this citation, officials in Canada will contact officials in the United States Department of State, who will review the case with concern to the particular extradition treaty between Canada and the United States, and if finding that the accused is charged with an extraditable offense, will forward the request for warrent to the Department of Justice, who will arrest and conduct the hearing for the extradition. Upon successful hearing, the accused will be returned to Canada to face trial for the charges. The United States typically signs Dual Criminality treaties with other countries, which means that in order to enforce an extradition request, the charges must be a criminal offense in the United States. The United States also has anti-libel tourism laws, which means that it will not extradite for defamation cases if the defamation case is not applicable under U.S. jurisprudence (Defmation is notoriously difficult to pursue in the United States compared to other Common Law nations.).

Answer 5

First there is the question whether the person would be arrested and prosecuted in the USA at all. In many cases, the USA won't do that for crimes committed outside the USA (there are exceptions, and there may be cases like a hacker sitting on a computer in the USA causing damage in Canada, where it isn't immediately obvious whether the crime is committed in the USA or Canada or both). If the USA prosecutes you, they will prosecute you according to US law.

Canada might ask the USA for extradition. The normal way to treat this is that the country asked for extradition looks at the case, and decides whether the same case with the countries exactly swapped (like a US citizen in Canada damaging a US company instead of a Canadian citizen in the USA damaging a Canadian company) would be prosecuted in the USA according to US law. If that is the case, they will get hold of the person and extradite them. (There are a few exceptions).

PS. Interesting if the person were accused of something that isn't actually a crime in Canada. If the USA gets a request for extradition, they would check if it is criminal according to US law, they wouldn't necessarily check if it is a crime according to Canadian law, and I have no idea if you could blame the USA if they missed that and extradited him, or even if they knew and still extradited him. I suppose if Canada asks for your extradition when you didn't commit a crime according to Canadian law, you would have a reason to complain to Canada.