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Scholars International Journal of Law, Crime and Justice (SIJLCJ)
Volume-3 | Issue-09 | 309-314
Review Article
Transplanting Legal Context without the Law: Double Criminality in Meng Wanzhou’s Extradition Case
Sean D. Yates
Published : Sept. 28, 2020
DOI : 10.36348/sijlcj.2020.v03i09.007
Abstract
Law is often transplanted from one place to another. Law is inextricably linked to its social context. In the new location, it will operate differently because the legal context changes. The law undergoes a transformation. In its new context, it might fulfill its intended purpose or satisfy a different one. In the extradition case of Meng Wanzhou, CFO of the Chinese private company, Huawei, the Canadian Court applied the double criminality test. This involved transferring the social context of the requesting jurisdiction, as it attached to the alleged conduct constituting the offence, to judge whether the domestic offence requirements could be satisfied. The social context may include background law comprising the sociolegal landscape. However, the law creating the offence is not transplanted for this purpose, as only the local law is relevant, not that of the foreign jurisdiction. This article reviews the application of the test and questions whether the deciding Court went too far by using foreign law, that creating US Sanctions against Iran, which does not exist in Canada, to satisfy a required element of the local offence. The article posits that the legal element of the transplanted ‘context’ shifted from passive background context to playing a performative role in the Court’s decision that the double criminality test had been satisfied. It is suggested that further study of the previous work of legal comparatists might help identify the role of transplanting law and context in this aspect of the extradition process.
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