美国金融监管法律域外管辖的扩张及其国际法限度

The Expansion of U.S. Extraterritorial Jurisdiction of Financial Regulation Law and Its International Law Limits

针对域外管辖的主张和行使,存在着相应的国际法原则和习惯国际法规则。2008年金融危机爆发以来,基于维护本国金融体系安全之考虑,美国和欧盟大幅度扩张其金融监管法律的域外管辖。迫于国际金融市场竞争压力,就如何实施此类域外管辖法律,美国各监管机构选择了不同路径。概而言之,对于场外衍生品金融监管倾向于采取"替代遵从"标准,而对于商业银行自营业务和覆盖基金业务则仍坚持美国标准。美国单边主张并行使金融监管域外管辖的做法受到其他国家抵制。美国学者提出的少边主义国际化方案不足以解决美国单边域外管辖在国际法上的合法性和合理性问题。根据不同领域中市场集中度和金融实力之现状,中国应有选择地与美国开展双边磋商,以降低金融监管法律域外管辖的负面影响。

There are some principles of international law and rules of customary inter- national law with respect to the assertion and exercise of extraterritorial jurisdiction. Since the outbreak of the financial crisis in 2008, the extraterritorial jurisdiction of US financial regulation law has been expanded substantially. To ensure the safety of their financial systems, the U. S. and the EU have expanded the scope of application of their financial regulation laws. Under the pressure of competition from international financial market, different regulatory authorities in U.S. have adopted different ways for implementing these laws. They prefer to apply the stand- ard of ＂substantive compliance＂ in the regulation of OTC derivative products, but insist on ap- plying the American standard in the regulation of banks propriety trading and covered funding This unilateral assertion and implementation of financial regulation is widely boycotted by other countries and the minilateralist internationalization of domestic law proposed by some pundits cannot solve the problems of legitimacy and reasonableness under international law faced by US unilateralism. Based on the relative market concentration and finance power in different fields, China should selectively carry out bilateral negotiation with US, so as to reduce the negative im- pacts of extraterritorial jurisdiction of financial regulation law.