The question in CC/Devas (Mauritius) Limited v. Antrix Corp. and Devas Multimedia Private Ltd. v. Antrix Corp. (consolidated for oral argument) is whether the exercise of personal jurisdiction over a foreign state under the FSIA requires satisfaction of the minimum-contacts test. The FSIA provides in 28 U.S.C. § 1330(b) that personal jurisdiction “shall exist” for every claim over which a district court has subject matter jurisdiction, which is to say claims from which a foreign state is not entitled to immunity.

The FSIA defines a foreign state to include many state-owned corporations. Lower courts have generally held that foreign states are not “persons” under the Fifth Amendment Due Process Clause and accordingly are not protected by constitutional limits on personal jurisdiction, including the minimum-contacts requirement. Private corporations, however, are entitled to due process protections, and lower courts have struggled to determine whether foreign state-owned corporations should be characterized as foreign states (with no due process protections) or as private corporations (with such protections). In this case, the Ninth Circuit interpreted the FSIA itself to require a showing of minimum contacts. Petitioners argue that neither the statute nor the Constitution imposes such a requirement.

Ingrid (Wuerth) Brunk has argued that foreign states are “persons” for due process purposes and that Article III also requires that federal courts have personal jurisdiction over them. If the Supreme Court agrees, it may also have to address whether the limits on personal jurisdiction applicable to federal courts under the Fifth Amendment are the same as those applicable to state courts under the Fourteenth, a question that has recently attracted attention in the lower courts.