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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

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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.

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

  • The thing is though, nothing was committed in foreign territory (US), and he/she is a Canadian citizen. The US can just decided to arrest him/her and prosecute them only because its headquarters is in Delaware? How does that make sense? – Space Fruiticle Nov 17 '17 at 21:23
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    @Unicorn13601 the law is the law - it's not required to make sense. If he stole from a US citizen (company) he broke US law no matter where in the world this happened. The defence can argue that the law does not have extraterritoriality but if it does, he's sunk. – Dale M Nov 17 '17 at 21:26
  • He technically allegedly stole from a Canadian company though, as it was like "Bell Canada". The law is 18 USC 1832, which does have an extraterritoriality thing as follows: 18 USC 1831 and 1832 apply to conduct occurring outside the United States if: (1) the offender is a citizen or permanent resident alien of the United States, or an organization organized under the laws of the United States or a State or political subdivision thereof; or (2) an act in furtherance of the offense was committed in the United States. However, he is not a US citizen, nor did he do anything at all in the US. – Space Fruiticle Nov 17 '17 at 21:31
  • @Unicorn13601 Then that's the argument the defence should make - the prosecution will no doubt argue argue for point 2 - perhaps he accessed a server in the US? – Dale M Nov 17 '17 at 21:33
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    This sound like it's not hypothetical. If so, don't ask about it here. Ask your lawyer. – Dale M Nov 17 '17 at 21:39
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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.

  • Yet the law that he supposedly violated and was charged with stated otherwise, in that it only applies if he is an american citizen, and if any furtherance of the offense was committed in the US. Is this a special case then? – Space Fruiticle Nov 20 '17 at 22:29
  • No. If a U.S. offense was committed, the proper process is to extradite to a U.S. court on a U.S. issued arrest warrant. Otherwise, the arresting court's law is the only thing that applies. If he is not charged with violations of any Canadian law in a Canadian indictment that would probably be grounds to move to dismiss the charges in Canada. – ohwilleke Nov 20 '17 at 23:04
  • he has not committed anything in the US, perhaps probably a violation in Canada, meaning that the US had no reason to arrest him. Would you be able to pursue dismissal because nothing was done in the US? He was only traveling and was suddenly arrested for something he may have done in Canada... – Space Fruiticle Nov 20 '17 at 23:09
  • @Unicorn13601 If he did something in Canada, then it sounds like Canada has jurisdiction to enforce its own laws against him. – ohwilleke Nov 20 '17 at 23:13
  • sorry to continue bothering you, but since he did nothing in the US, we should pursue dismissal in the US? – Space Fruiticle Nov 20 '17 at 23:22
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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.).

  • Thank you for your answer. Specifically for a trade secret misappropriation case, it is considered to be a criminal offense in the US, whereas it's only a civil offense on Canada. If upon a successful hearing for extradition, and the 2 countries, according to the treaty, allows the accused to extradite back to Canada to face the charges, would the defendant still be facing criminal or civil charges? Sorry that was quite a long sentence, but the main thing is that if a charge is criminal in the US, but civil in Canada, would it be converted when extradited back to the home country? – Space Fruiticle Nov 21 '17 at 18:57
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    @Unicorn13601: Civil, I'd imagine. We only care about giving him back to the Canadians. Of course that all depends if he could be extradited at all for a civil offense which I don't know. Certainly not standing trial in a civil case is not going to help him and failure to follow court sanctions against you is a criminal offense so that will be enforced. – hszmv Nov 21 '17 at 23:56
  • Apparently extradition only applies to criminal cases, so after he is extradited to Canada, as long as the court approves, it would under civil offense inCanada right? Thanks again – Space Fruiticle Nov 22 '17 at 0:06

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