Personal jurisdiction over foreign defendants in state courts is limited by state statutes and by the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, which the Supreme Court has interpreted to require that defendants have “minimum contacts” with the forum state. Personal jurisdiction in federal courts extends in most cases only as far as the jurisdiction of the state courts of the state in which they sit. However, in limited situations governed by Federal Rule of Civil Procedure 4(k)(2) and some federal statutes, personal jurisdiction in federal courts may extend beyond the limits of state court jurisdiction. Personal jurisdiction in federal courts is limited by the Fifth Amendment’s Due Process Clause, the scope of which remains unclear. Whether customary international imposes general limits jurisdiction on jurisdiction to adjudicate is also unclear.
A Primer on Personal Jurisdiction
Personal jurisdiction (or “authority to adjudicate”) refers to the authority of a court to make a binding determination with respect to a person or a thing. In personam jurisdiction refers to the authority to determine the rights or obligations of a person (including a business). In rem jurisdiction refers to the authority to determine ownership…
Continue ReadingForeign States are “Persons”: CC/Devas v. Antrix Amicus Brief
The Supreme Court may soon resolve an important constitutional question: whether foreign states are “persons” entitled to Fifth Amendment due process. For those who engage seriously with the text, history, and structure of the Constitution, there is a ready answer: yes, foreign states are “persons.” The scope of the “process” to which foreign states are…
Continue ReadingAll I Want for Christmas (Forum Selection Clause Edition)
As the holidays approach, TLB editors have prepared lists of things that they wish courts in the United States would do differently on the subject of transnational litigation. In this post, I revisit one of my favorite subjects—forum selection clauses—to identify some reforms that would make my Christmas exceptionally merry. 1. Stop Asserting Personal Jurisdiction…
Continue ReadingArbitration Enforcement and Consent
This Term, the Supreme Court will hear a case that could have profound ramifications for international arbitration: CC/Devas (Mauritius) Ltd. v. Antrix Corp. Ltd. The petitioners are seeking to enforce an arbitration award they won against a state-owned company in India. The district court enforced the award, relying on the New York Convention and the…
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