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Transnational Litigation

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Transnational Litigation

Professor: Unknown (Bermann materials referenced throughout) Semester: Spring 2017

Course Info

Transnational Litigation covers the procedural and jurisdictional framework governing civil disputes with international dimensions in U.S. courts. The course is organized around the lifecycle of transnational litigation — from obtaining jurisdiction over a foreign defendant, through service and discovery, to the ultimate recognition or enforcement of a judgment abroad or a foreign judgment in the United States.

A central tension runs throughout: the U.S. tradition of expansive jurisdiction, liberal discovery, and plaintiff-favorable procedures versus European and international norms favoring predictability, comity, legal certainty, and restraint. The course uses the Bermann casebook and engages extensively with EU law (Brussels Regulation, Rome I/II) as a comparative foil.

Topics Covered

Detailed Outline

I. Personal Jurisdiction Over Foreign Defendants

A. Due Process Framework

Specific jurisdiction — predicated on a nexus between the claim and the forum contacts:

  • Purposeful availment: D must voluntarily target the forum state, not merely place goods in the stream of commerce. McIntyre (2011) fractures the Court: Kennedy plurality requires purposeful targeting of the specific state; Breyer concurrence adds a volume threshold; Ginsburg dissent is broadest (awareness of stream-of-commerce destination suffices).
  • Even with minimum contacts, the exercise of jurisdiction may be unreasonable under the Asahi (1987) factors: burden on D, forum’s interest, P’s interest, efficient judicial resolution, shared social policies.
  • Yahoo! Inc. v. La Ligue (9th Cir. 2006): French NGOs purposefully availed California by serving the enjoining order there, but case dismissed on ripeness.

General jurisdiction — no nexus required; D must be “at home”:

  • Goodyear (2011): Foreign subsidiary of U.S. parent not subject to general jurisdiction in North Carolina merely because tires traveled through the stream of commerce there.
  • Daimler AG v. Bauman (2014): General jurisdiction restricted to where D is incorporated or has its principal place of business (the “essentially at home” test). Even imputing MBUSA’s California contacts to Daimler would not make Daimler “at home” in California. Converges U.S. general jurisdiction toward EU domicile-based model.
  • Helicopteros (1984): Negotiating contracts, purchasing helicopters, and pilot training in Texas do not rise to “continuous and systematic” contacts.

Transient (tag) jurisdiction: Burnham (1990) upholds personal service in the forum as constitutional regardless of International Shoe because it is a traditional category.

B. Reach of Process

  • FRCP 4(k)(1)(A): Federal courts borrow the forum state’s long-arm statute; FRCP 4(k)(1)(D): Federal jurisdiction authorized by federal statute (e.g., FSIA, Clayton Act, Securities Acts, RICO).
  • FRCP 4(k)(2): Fallback for defendants not amenable in any state — applies nationwide contacts, requires a federal claim (Swiss American Bank, 1st Cir. 1999; burden-shifting).
  • National contacts aggregation (Cryomedics; DeJames; Omni Capital): Without statutory authority for nationwide service, courts must look to state long-arm; statute required to aggregate contacts for foreign defendant with minimal contacts in any one state.

C. EU Jurisdictional Model: Brussels Regulation

  • Specific bases (Art. 3 white list): contract at place of performance (Art. 5.1); tort where harmful event occurred (Art. 5.3); multiple defendants where claims are closely connected (Art. 6).
  • Consumer/insurance protection (Arts. 7–15): systematically weaker parties may sue at their domicile; no waiver by boilerplate; post-dispute agreements only. Gruber (2005): business person cannot easily recharacterize as consumer.
  • General jurisdiction: exclusively domicile-based; curtails Art. 14 (French nationality) and underwear jurisdiction against member states.
  • Libel jurisdiction: Shevill (1995) — victim may sue at publisher’s establishment (full damages) or each state of distribution (local damages only); Martinez (2011) adds center of interest (usually habitual residence) as an additional base.

D. Attachment and Quasi-In-Rem Jurisdiction

  • Shaffer v. Heitner (1977): Quasi-in-rem jurisdiction subject to International Shoe minimum contacts; holding shares in a DE corporation insufficient contact.
  • No minimum contacts needed to enforce a prior judgment (Shaffer fn. 36); Shaffer fn. 37 leaves open whether property presence suffices when no other forum is available.
  • Grupo Mexicano (1999): Federal courts under FRCP 65 (equity tradition) cannot issue preliminary injunctions freezing assets to secure a future money judgment; not binding on state courts.
  • Mareva injunctions (UK): ex parte worldwide asset freeze; Anton Piller orders: ex parte disclosure of asset location.
  • Carolina Power & Light v. Uranex (N.D. Cal. 1977): Interim relief to attach debt pending arbitration permitted without personal jurisdiction.

II. Forum Selection Clauses

  • The Bremen v. Zapata Off-Shore Co. (1972): Forum selection clauses are prima facie valid and enforceable; heavy burden on challenger to show fraud in the clause itself, forum so unreasonable as to deny a day in court, or contrariness to public policy.
  • Carnival Cruise Lines (1991): Bremen extended to boilerplate consumer contracts.
  • Scope issues: narrow (breach of contract) vs. broad (all disputes arising out of and related to contract, including tort and antitrust claims).
  • Mandatory vs. permissive: IntraComm v. Bajaj (4th Cir. 2007) — specific language of exclusion required; growing tendency to treat as mandatory.
  • Choice of substantive law for clause interpretation: forum law presumptively applies (The Bremen itself assumed this).
  • Hague Choice of Court Convention: applies to business-to-business exclusive agreements (Art. 2); chosen court must exercise jurisdiction (Art. 5); other courts must dismiss or suspend (Art. 6); public policy escape.
  • EU law: Brussels Regulation Art. 23 requires writing or recognized trade usage; exclusive unless parties agree otherwise; Art. 25 (revised Brussels) makes forum selection trump lis pendens.
  • Richards v. Lloyd’s of London (9th Cir. 1998): Antiwaiver provisions of the Securities Acts do not void international forum selection clauses (federal common law under Bremen, which is federal procedural common law binding in diversity).
  • Mitsubishi v. Soler Chrysler-Plymouth (1985): Sherman Act claims encompassed in a valid arbitration clause in an international transaction are arbitrable.

III. Subject Matter Jurisdiction

A. Alienage / Diversity (28 U.S.C. § 1332)

  • Complete diversity required (Strawbridge); aliens on both sides destroys diversity (Hodgson v. Bowerbank; Verlinden 1983).
  • Dual nationals: only U.S. citizenship counts (Sadat v. Mertes, 7th Cir. 1980).
  • § 1332(c): Corporation is citizen of every state of incorporation and principal place of business (“nerve center,” Hertz v. Friend 2010).
  • Permanent resident aliens: treated as aliens but destroy diversity if domiciled in same state as opposing citizen (Antonier v. Miller).
  • § 1332(a)(3): Mixed cases (NY citizen, Italian alien vs. VA citizen, French alien) allowed; but pure alien-v.-alien is barred.

B. Arising-Under / Federal Question

  • Alien Tort Statute (28 U.S.C. § 1350): District courts have original jurisdiction over civil actions by aliens for torts in violation of the law of nations or a U.S. treaty.
    • Filartiga v. Pena-Irala (2d Cir. 1980): ATS implies a federal cause of action; state-sponsored torture violates customary international law (CIL), which is part of federal common law.
    • Sosa v. Alvarez-Machain (2004): ATS is jurisdictional but not stillborn; courts may recognize causes of action for violations of CIL norms of definite content and wide acceptance; arbitrary short-term detention does not qualify.
    • Kiobel v. Royal Dutch Petroleum Co. (2013): Presumption against extraterritoriality applies to ATS; tort must “touch and concern” the United States with sufficient force; practically eliminates ATS claims for purely foreign conduct by foreign defendants.
    • Kadic v. Karadzic (2d Cir. 1995): ATS applies to non-state actors for genocide and war crimes.
    • TVPA (Torture Victim Protection Act): codifies Filartiga cause of action; adds U.S. citizen Ps; requires state action; applies only to natural persons (Mohamad v. Palestinian Authority 2012).
    • FSIA is the sole basis for jurisdiction against a foreign state — ATS cannot supply an independent basis (Amerada Hess Shipping, 1989).
  • Foreign affairs federal common law: Republic of Philippines v. Marcos (2d Cir. 1986) — state law cause of action can “arise under” federal law when it turns on the interpretation of a foreign government executive order.
  • Treaty-based claims: Treaties are federal law but self-execution is required; Medellín v. Texas (2008) — Vienna Consular Convention not self-executing; Benjamin v. British European Airways (2d Cir. 1978) — Warsaw Convention Art. 17 creates liability.

C. FSIA as Jurisdictional Statute (28 U.S.C. §§ 1602–1611)

See FSIA section below.

IV. Venue Against Foreign Defendants

V. Forum Non Conveniens

  • Piper Aircraft Co. v. Reyno (1981): FNC will be applied if (1) foreign forum is manifestly more convenient and (2) the foreign forum can afford an adequate remedy. Disadvantageous change of law is not a significant factor unless the foreign remedy is “so clearly inadequate or unsatisfactory as to be no remedy at all.” Foreign plaintiff’s choice of U.S. forum gets less deference.
  • Gilbert private interest factors: access to evidence; compulsory process for witnesses; cost of obtaining attendance; other practical problems.
  • Gilbert public interest factors: court congestion; interest of the forum; local interest in having controversy resolved at home; unfairness of burdening citizens with jury duty in unrelated litigation.
  • Adequate alternative forum standard: De Melo v. Lederle Labs (8th Cir. 1986) — absence of contingency fees and punitive damages does not make Brazilian forum inadequate; In re Trinidad Maritime Disaster (2d Cir.) — damages ceiling not illusory.
  • Conditional dismissal: In re Union Carbide Gas Plant Disaster (2d Cir. 1987) — district court may condition FNC dismissal on D’s waiver of statute of limitations and jurisdictional defenses; may not require D to submit to U.S.-style discovery in foreign proceeding.
  • FNC is not federal common law binding on state courts (unlike Act of State doctrine).
  • EU: Owusu v. Jackson (2005) — Brussels Convention mandatory jurisdiction precludes FNC dismissal within the Brussels system; lis pendens rule gives priority to first court seised; no procedural remedy for defendant in inconvenient forum.

VI. Service of Process Abroad

A. FRCP Framework

  • FRCP 4(e): Serving defendants within a U.S. judicial district (state law methods; personal service; authorized agent).
  • FRCP 4(f): Serving individuals in a foreign country:
    • (1) By any internationally agreed means (e.g., Hague Service Convention);
    • (2) If no international agreement: as prescribed by foreign country law (4(f)(2)(A)); as directed by letter rogatory (4(f)(2)(B)); or by personal service or registered mail with signed receipt unless prohibited by foreign law (4(f)(2)(C));
    • (3) Other methods not prohibited by international agreement — court discretion.
  • FRCP 4(h): Parallel provision for corporations.

B. Hague Service Convention

  • Central authority mechanism: requesting state sends request to central authority (U.S.: Dep’t of Justice) of the state addressed; central authority serves and certifies.
  • Art. 10 optional mechanisms: sending documents by postal channels, diplomatic/consular channels, or direct service — countries may opt out.
    • Circuit split on Art. 10(a) “send”: Bankston (8th Cir.) — “send” ≠ “serve”; Brockmeyer (9th Cir.) and Ackerman (2d Cir.) — “send” includes “serve.”
  • Exclusivity: Volkswagenwerk AG v. Schlunk (1988): Hague Service Convention is the exclusive means of service when the Convention is applicable, but “applicable” means the documents must actually be transmitted abroad. Service on a domestic alter ego (VWoA) under state law completed service domestically, so Convention was inapplicable.
  • Art. 13 sovereignty exception: state addressed may refuse to comply only if compliance would infringe its sovereignty or security; narrowly construed (Constitutional Complaint, Ger. Fed. Const. Ct. 1994 — U.S. service with punitive damages claim does not violate German sovereignty).
  • Service on OPEC: Prewitt Enterprises v. OPEC (11th Cir. 2003) — FRCP 4(f)(3) is available but court declines to use discretion out of comity with Austria’s immunity statute for OPEC.

C. Service Under FSIA (28 U.S.C. §§ 1608(a)–(b))

  • § 1608(a): Service on foreign state or political subdivision — hierarchy: (1) special arrangement; (2) applicable international convention; (3) mail to head of foreign affairs ministry; (4) diplomatic channels.
  • § 1608(b): Service on agency or instrumentality — (3) “reasonably calculated to give actual notice” (lesser standard).
  • Transaero (D.C. Cir. 1994): Armed forces are so closely bound with state structure that they are the “foreign state” itself for service purposes.

VII. Discovery Abroad

A. Hague Evidence Convention

  • Structure: Art. 1 — applies to “civil or commercial matters” (definitional variation across states); letter of request mechanism via central authority; Art. 2 — optional mechanisms (diplomatic/consular commissioners); Art. 10 — same compulsion as domestic; Art. 11 — domestic testimonial privileges available; Art. 12 — exceptions for sovereignty, security, or functions outside judiciary; Art. 23 — states may declare they will not execute requests for common-law style pretrial discovery.

B. Societe Nationale Industrielle Aerospatiale v. U.S. District Court (1987)

  • Hague Evidence Convention is not exclusive — FRCP provides independent means of discovery.
  • Why not exclusive: Art. 1 says “shall apply” (facilitate, not mandate exclusive regime); Art. 27 sets a floor, not a ceiling; U.S. would not have signed a treaty limiting FRCP; legislative history shows purpose was to “facilitate,” not restrict.
  • Three-factor case-by-case test: (1) particular facts of the case (nature and intrusiveness of the requests); (2) sovereign interests involved (e.g., French blocking statute — given some weight but not dispositive); (3) likelihood that Convention will be effective (requires expert testimony).
  • Valois of America v. Risdon Corp. (D. Conn. 1997): More intrusive request → use Convention; narrowly tailored request → use FRCP.
  • J. Blackmun dissent: Comity requires first resort to Convention (exhaustion before FRCP).

C. Foreign Blocking Statutes

  • Enacted by foreign states to counteract U.S. extraterritorial discovery (e.g., French blocking statute in Aerospatiale; UK anti-clawback statute; Swiss bank secrecy laws).
  • Rogers (1958) / Rest. 3d § 442 framework: (1) multi-factor prudential analysis on whether to issue production order at all; (2) in face of nonproduction, assess good faith, negotiations, and seek waiver before imposing sanctions; adverse inference drawing is appropriate sanction.
  • Richmark Corp. (9th Cir. 1992): Party invoking blocking statute must affirmatively show good faith in seeking permission to disclose.
  • In re Marc Rich (2d Cir. 1984): Civil contempt sustained even after Swiss seizure of documents; sanctions subject to negotiations with Swiss government.

D. 28 U.S.C. § 1782 — Assistance to Foreign Tribunals

  • Federal courts may order a person in the district to give testimony or produce documents for use in a “foreign or international tribunal” on application of “any interested party.”
  • Intel v. AMD (2004): (1) No foreign discoverability requirement; (2) proceedings need only be contemplated; (3) AMD qualifies as interested party in EU Commission investigation; (4) EU Commission DG Comp qualifies as “foreign or international tribunal” even at investigatory stage.
  • Courts split on whether § 1782 extends to private arbitral tribunals.
  • [Service of Process in Foreign Countries (28 U.S.C. § 1696)|28 U.S.C. § 1696]: Service of foreign tribunal documents in the district.

VIII. Parallel Litigation

A. International Forum Non Conveniens and Lis Pendens

  • FNC is a discretionary procedural tool; EU’s Brussels system replaces it with mandatory lis pendens: first court seised must determine its own jurisdiction first; all subsequent courts must stay (Gasser v. MISAT 2003, lis pendens prevails over forum selection clause).
  • Revised Brussels Regulation Art. 31: forum selection clause now trumps lis pendens; Art. 25 makes designated court presumptively exclusive.

B. Antisuit Injunctions

Standards diverge across U.S. circuits:

  • Liberal (Kaepa, 5th Cir. 1996): injunction if parallel proceeding is inefficient, offends public policy, would yield inconsistent judgment, or is vexatious.
  • Conservative (Laker Airways, D.C. Cir. 1984): injunction only when (1) foreign proceeding would directly interfere with the court’s exercise of jurisdiction, or (2) proceeding offends forum’s substantive public policy; mere duplication insufficient.
  • Intermediate (Quaak, 1st Cir. 2004): counter-antisuit injunction granted where Belgian blocking order imposed crushing penalties as a practical assault on the U.S. court’s jurisdiction.
  • EU: Turner v. Grovit (2004) — Brussels Regulation prohibits any member state court from issuing antisuit injunctions against proceedings in another member state.

IX. Sovereign Immunity and the FSIA (28 U.S.C. §§ 1602–1611)

A. Structure and Scope

  • FSIA defines sovereign immunity as a matter of subject matter jurisdiction (28 U.S.C. § 1330): district courts have jurisdiction over foreign states only insofar as they are not immune under §§ 1605–1607. Because SMJ is not waivable, FSIA immunity is not waivable.
  • Personal jurisdiction follows automatically for any claim that survives the immunity analysis, provided service is made under § 1608.
  • FSIA is the sole basis for jurisdiction over foreign states (Amerada Hess Shipping, 1989) — ATS cannot circumvent FSIA.
  • Verlinden (1983): FSIA is constitutional; suits against foreign sovereigns arise under federal law from the outset.
  • Altmann (2004): FSIA applies retroactively.
  • Dole Food v. Patrickson (2003): “Majority of whose shares” means only direct state ownership; indirect subsidiary of state instrumentality is not itself an instrumentality; instrumentality status determined at time suit is filed.
  • Samantar v. Yousuf (2010): FSIA does not cover individual officers in their personal capacity; common-law immunity governs (status immunity vs. conduct immunity).

B. Exceptions to Immunity (§ 1605)

§ 1605(a)(1) — Explicit or Implicit Waiver: Foreign state has waived immunity explicitly or by implication.

§ 1605(a)(2) — Commercial Activity Exception:

  • Three nexus prongs: (i) commercial activity carried on in the U.S.; (ii) act performed in the U.S. in connection with commercial activity elsewhere; (iii) act performed outside the U.S. in connection with commercial activity outside the U.S. but causing direct effect in the U.S.
  • Argentina v. Weltover (1992): Nature-of-the-act test (not purpose): if a sovereign acts as a private player in the market, the activity is commercial. Issuance of Bonods was commercial; rescheduling was “in connection with” that commercial activity; direct effect in U.S. satisfied by New York payment obligation.
  • Saudi Arabia v. Nelson (1993): Wrongful arrest and imprisonment claim not “based upon” commercial activity; the gravamen of Nelson’s claim was the police brutality and imprisonment, not the recruitment in the U.S. Tort exception § 1605(a)(5) also unavailable (no U.S. nexus for conduct); forum selection clause to Saudi courts cut off commercial activity exception.

§ 1605(a)(3) — Expropriation Exception:

  • Rights in property taken in violation of international law must be present in U.S. in connection with a commercial activity by the foreign state, or owned and operated by an instrumentality engaged in U.S. commercial activity.
  • Zappia Middle East Constr. Co. (2d Cir. 2000): No expropriation unless state takes property directly; no veil-piercing for government instrumentalities (strong presumption of separateness).
  • Must establish: (i) rights in property are at issue; (ii) property was “taken”; (iii) taking violated international law; (iv) requisite U.S. nexus.

§ 1605(a)(4) — Rights in Property in the U.S.: Rights in property in the U.S. acquired by succession or gift, or rights in immovable property in the U.S.

§ 1605(a)(5) — Non-Commercial Tort Exception:

  • Personal injury, death, or damage to/loss of property occurring in the U.S. due to tortious act or omission by foreign state or its employees acting within scope of employment.
  • Tort must occur “wholly” in the U.S. (conduct and at least injury).
  • Exclusions: intentional torts (malicious prosecution, libel, misrepresentation); acts of discretionary function involving social, economic, and political policy judgment.
  • De Letelier v. Republic of Chile (D.D.C. 1980): Political assassination is not a discretionary act.

§ 1605(a)(6) — Arbitration Award Exception: U.S. must be the place of arbitration, or award must be subject to a U.S. treaty governing enforcement, or the underlying claim could have been brought under FSIA.

§ 1605A — State-Sponsored Terrorism Exception (formerly § 1605(a)(7)):

  • Requirements: (i) defendant state designated as state sponsor of terrorism; (ii) claimant or victim was a U.S. national at the time; (iii) act occurred on defendant state’s territory and claimant offered reasonable opportunity to arbitrate.
  • Cicippio-Puleo v. Republic of Iran (D.C. Cir. 2004): Original § 1605(a)(7) and Flatow Amendment did not create a private right of action against a foreign government itself; Congress then amended to create § 1605A providing explicit private right of action.

C. Attachment and Execution (28 U.S.C. §§ 1609–1611)

  • § 1609: Foreign government property is presumptively immune from attachment.
  • § 1610(d): Prejudgment attachment for securing judgment is permitted only with foreign state’s explicit waiver; categorically excludes quasi-in-rem jurisdiction.
  • § 1610(a): Post-judgment attachment allowed by court order where (1) immunity from attachment waived; (2) commercial activity exception underlies the judgment and property was used for that commercial activity; (3)–(5) other specific grounds.
  • § 1611: Special categories immune from attachment (e.g., central bank property).
  • A foreign state can lose immunity from suit yet retain immunity from execution of the resulting judgment.

X. Act of State Doctrine

  • Rule: No U.S. court will pass upon the validity of official public acts taken by a foreign government in its own territory. Underhill v. Hernandez (1897).
  • Constitutional underpinnings: Banco Nacional de Cuba v. Sabbatino (1964) — doctrine arises from separation of powers; judicial deference to executive authority in foreign affairs; requires contextual balancing, not absolute rule.
  • Dunhill formal test: Alfred Dunhill of London v. Republic of Cuba (1976, plurality) — act of state only if supported by “statute, decree, order, or resolution” of the foreign state; Cuba’s mere refusal to reimburse is not a formal act.
  • Kirkpatrick escape: W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp. (1990) — illegal acts (bribery) under foreign law are not official public acts and the doctrine does not apply.
  • Second Hickenlooper Amendment: Prevents courts from declining to hear cases involving post-1959 property confiscations in violation of international law (exception: if President determines Act of State doctrine is required in a particular case — reversal of Bernstein letter presumption).
  • International Ass’n of Machinists v. OPEC (9th Cir. 1981): Act of State shields OPEC states from antitrust challenge for oil price-fixing; treating disposition of natural resources as sovereign act.
  • Doctrine is federal common law binding on state courts through Supremacy.
  • A purely commercial act within the meaning of FSIA is not necessarily a formal act of state (but even purely commercial acts can create foreign affairs sensitivity warranting abstention).

XI. Choice of Law in Transnational Litigation

A. American Approaches

  • Rest. 1st (1934): Territorialism — localize the act; rigid rules by category (where contract was made; where tort occurred); predictability-focused.
  • Interest analysis (Currie): Apply forum law when it has a legitimate interest; restrained interpretation; comparative impairment analysis. Babcock v. Jackson (N.Y. 1963) — New York has interest in loss-allocation rules between NY domiciliaries even when accident occurs in Ontario; Ontario has regulatory interest in standard of care.
  • Rest. 2d (1971): Most significant relationship test (§ 6 principles; § 145 tort contacts — place of injury, domicile/nationality, place of conduct, center of relationship). Presumptive default rules with overcoming facts.
  • Choice of law clauses: Rest. 2d § 187 — (1) issue could have been resolved by explicit contract provision → enforce; (2) mandatory rule issue → enforce if reasonable nexus, and not fundamentally contrary to the policy of a state with materially greater interest.
  • Nedlloyd Lines v. Seawinds (Cal. 1992): Choice of HK law encompasses all aspects of the relationship the parties expected to be governed, including breach of fiduciary duty.

B. Constitutional Limits

  • Home Insurance v. Dick (1930): Texas cannot apply its insurance statute to a Mexican contract with no contacts in Texas; deprivation of property without due process.
  • Allstate Ins. Co. v. Hague (1981, plurality): A state may apply its own law if it has “significant contact or significant aggregation of contacts, creating state interests, such that choice of law is neither arbitrary nor fundamentally unfair.”
  • Phillips Petroleum Co. v. Shutts (1985): State cannot apply its own law to claims of non-residents arising out of non-forum transactions; forum’s interests must actually be furthered by applying forum law.

C. European Framework (Comparative)

  • Rome I Regulation (contracts): Applies to contractual obligations in civil and commercial matters. Party autonomy first (law chosen by parties); in absence of choice, seller’s habitual residence (Art. 4.1(a)) or consumer’s habitual residence when professional directs activities there (Art. 6.1). Consumer mandatory rules protect consumer even if parties chose another law.
  • Rome II Regulation (non-contracts/tort): General rule — law of the country where the damage occurs (Art. 4.1); exception for common habitual residence (Art. 4.2); manifestly closer connection escape (Art. 4.3). Does not apply to defamation/privacy (remains national law).
  • European civil law culture favors certainty and predictability via codified rules; American common law favors flexibility and individual justice — a running comparative tension throughout the course.

XII. Extraterritorial Application of U.S. Statutes

A. Antitrust

  • Alcoa (2d Cir. 1945): Sherman Act applies to agreements made abroad if intended to affect and did affect U.S. imports (effects doctrine).
  • Timberlane Lumber Co. (9th Cir. 1976): Tripartite test — (1) effect on U.S. commerce; (2) magnitude of burden; (3) comity-based reasonableness of prescriptive jurisdiction.
  • Hartford Fire Ins. Co. (1993): Sherman Act applies to foreign conduct that produces substantial effect in the U.S.; no true conflict unless foreign law requires what U.S. law prohibits; comity-based abstention overruled.
  • FTAIA (Foreign Trade Antitrust Improvement Act, 15 U.S.C. § 6a): Sherman Act does not apply to foreign commerce unless conduct has “direct, substantial, and reasonably foreseeable effect” on domestic commerce or U.S. export commerce.
  • F. Hoffmann-La Roche v. Empagran (2004): FTAIA excludes claims by foreign plaintiffs suffering foreign injury independent of any domestic effect; comity-based territorialization.
  • Ahlström (ECJ 1988): EU uses implementation doctrine (where cartel was implemented in Europe), not pure effects test.

B. Securities

  • Morrison v. National Australia Bank (2010): § 10(b) of the Exchange Act applies only to transactions in securities listed on domestic exchanges or domestic transactions in other securities (domestic-transaction test); effects test rejected; characterizes this as prescriptive (not subject-matter) jurisdiction question.

C. Employment

  • EEOC v. Aramco (1991): Title VII does not apply to U.S. employer’s employment of U.S. citizen in Saudi Arabia absent clear expression of extraterritorial intent; Congress overturned by amendment.
  • Schooner Charming Betsy canon: Statutes should not be interpreted to violate international law if another construction is possible.

XIII. Recognition and Enforcement of Foreign Judgments

A. Framework

  • Full Faith and Credit (28 U.S.C. § 1738): Mandatory recognition of sister-state judgments; contravention of public policy is no defense (Fauntleroy v. Lum 1908); FFC does not extend to foreign-country judgments.
  • International Comity: Recognition of foreign-country judgments is discretionary, governed by state law in federal diversity cases (after Erie; Johnston v. Compagnie Générale Transatlantique 1926); federal courts may apply federal foreign affairs preemption where state law recognition would disrupt U.S. foreign relations.

B. Hilton v. Guyot (1895)

  • Traditional comity standard: A court of competent jurisdiction; full and fair opportunity to litigate after notice or voluntary appearance; under a system of jurisprudence likely to secure impartial administration of justice.
  • Reciprocity requirement: Foreign judgments from countries that give reciprocal effect to U.S. judgments are conclusive; otherwise only prima facie evidence (France did not give conclusive effect → French judgment only prima facie in U.S.).

C. Uniform Foreign-Country Money Judgments Recognition Act (UFCMJRA)

  • Applicability: Final, conclusive, enforceable foreign money judgment (§ 3); excludes taxes, penalties, and family law.
  • Mandatory non-recognition (§ 4): System lacking impartial tribunals or due process; no personal or subject matter jurisdiction.
  • Permissive non-recognition (§ 4): Insufficient notice; fraud; repugnant to public policy of state or U.S.; conflicts with another final judgment; brought contrary to dispute resolution agreement; tag jurisdiction plus serious inconvenience; substantial doubt about court’s integrity; specific proceeding incompatible with due process.
  • Personal jurisdiction safe harbors (§ 5): Not refused for lack of personal jurisdiction if D was personally served in foreign country; voluntarily appeared (not to contest jurisdiction); agreed to submit before dispute; domiciled or incorporated in foreign country; had business office and claim arose from that office; operated motor vehicle or aircraft.
  • UFCMJRA drops the reciprocity requirement of Hilton.

D. Public Policy and Substantive Grounds for Non-Recognition

  • Defamation: Telnikoff v. Matusevitch (Md. 1997) — UK defamation judgment not recognized; lack of actual malice standard violates Maryland public policy. Bachchan v. India Abroad Publications (N.Y. 1992) — UK libel judgment refused on First Amendment grounds.
  • SPEECH Act (2010): Federal statute preventing recognition of foreign defamation judgments from jurisdictions with speech protections less favorable than the U.S. Constitution or relevant state constitution; burden on judgment creditor to show compliance.
  • Southwest Livestock & Trucking (5th Cir. 1999): Texas Recognition Act grounds are exclusive; 52% interest rate not itself listed.
  • Society of Lloyd’s v. Ashenden (7th Cir. 2000): International due process standard (not American due process) applies to civilized legal systems like the UK.

E. Foreign Judgment Jurisdiction Challenges

  • Evans Cabinet v. Kitchen Int’l (1st Cir. 2010): Recognition court applies F2 constitutional standards (minimum contacts) to assess F1’s personal jurisdiction in a Canadian default judgment; if D did not appear, default judgment is open to jurisdictional challenge.
  • Somportex v. Philadelphia Chewing Gum (3d Cir. 1971): D who appeared and contested jurisdiction in English proceeding is bound by issue preclusion.

F. New York Convention and Arbitral Awards

  • Applies to recognition and enforcement of foreign arbitral awards; errors of law do not vitiate enforcement; public policy exception available; Art. 3 — recognition forum uses its own procedures.
  • Friendship, Commerce, and Navigation Treaties may elevate foreign judgments to status of sister-state judgments (Vagenas v. Continental Gin Co., 11th Cir. 1993).

Key Doctrines

Key Cases

Exam Approach

Work through the following checklist in order. Each step identifies the threshold question, the governing standard, and the key statute or case.

1. Personal Jurisdiction Over a Foreign Defendant

(a) General jurisdiction — Is D “at home” in the forum?

  • Natural test: incorporated or principal place of business (Daimler).
  • Exceptional case: continuous and pervasive contacts such that the forum is functionally equivalent to home (Goodyear).
  • Do not conflate piercing the veil for jurisdiction with piercing for liability.

(b) Specific jurisdiction — Does D have purposeful contacts with the forum related to the claim?

  • Purposeful availment — did D target the specific state? (McIntyre — apply Kennedy, Breyer, or Ginsburg standard depending on facts).
  • Nexus — does the claim arise out of or relate to those contacts?
  • Reasonableness — does exercise of jurisdiction comport with traditional notions of fair play and substantial justice (Asahi balancing)?

(c) Transient jurisdiction — Was D personally served in the forum? (Burnham).

(d) Federal court: FRCP 4(k) reach — Is there a federal statute authorizing nationwide service (FSIA § 1330; Clayton Act; RICO)? If not, fall back to state long-arm. Use FRCP 4(k)(2) if D is not amenable in any state.

2. Subject Matter Jurisdiction

(a) Diversity/alienage (§ 1332): Complete diversity? Dual nationals treated as U.S. citizens. Permanent resident aliens destroy diversity with co-domiciliaries.

(b) Federal question / arising under (28 U.S.C. § 1331): Does the complaint satisfy the well-pleaded complaint rule? ATS (§ 1350) — alien P, tort, violation of law of nations or U.S. treaty; post-Kiobel: sufficient U.S. connection required.

(c) FSIA (§ 1330): Is D a “foreign state” or “agency/instrumentality”? Does claim fall within an exception to immunity (§§ 1605–1607)? If yes → SMJ and PJ exist provided service made under § 1608.

3. Forum Selection Clause

Apply The Bremen framework:

  • Is the clause mandatory or permissive?
  • Is it enforceable? Challenge only by: (i) fraud in the clause itself; (ii) forum so unreasonable as to deny a day in court; (iii) contrary to public policy.
  • Is the clause broad enough to cover this claim?
  • Does it bind non-signatories?
  • Check Hague Choice of Court Convention applicability (business-to-business; exclusive agreement; not on the excepted list).

4. Forum Non Conveniens

(a) Adequate alternative forum: Can D be served there? Does it provide some remedy (even if less favorable)?

(b) Private Gilbert factors: access to evidence; compellable witnesses; cost; practical problems.

(c) Public Gilbert factors: court congestion; local interest; jury duty burden; applicable law familiarity.

(d) Deference to plaintiff’s choice: strong for U.S. plaintiff in U.S. home forum; lesser for foreign plaintiff (Piper).

(e) Conditional dismissal: Impose conditions (waiver of SOL and jurisdictional defenses) but do not extend jurisdiction to supervise foreign proceedings.

5. Service of Process Abroad

(a) Is Hague Service Convention applicable? — Does service require transmission of documents abroad (i.e., D is foreign and domestic agent/alter-ego service unavailable)? (Schlunk — if service can be completed domestically on alter ego, Convention inapplicable.)

(b) If applicable, use Convention: Central authority mechanism (Art. 1); consider Art. 10 alternatives if forum state and state addressed both permit.

(c) If no Convention: FRCP 4(f)(2) or (3) alternatives; assess risk of judgment non-recognition.

(d) Foreign state defendant: Use FSIA § 1608(a) hierarchy: special arrangement → applicable international convention → mail to foreign affairs ministry → diplomatic channels.

6. Discovery Abroad

(a) Hague Evidence Convention applicable? — “Civil or commercial matter”? Has the state addressed reserved Art. 23 (no pretrial discovery)?

(b) Aerospatiale case-by-case test:

  • Factor 1: Particular facts — how intrusive/burdensome are the requests? Narrowly tailored requests → FRCP more likely appropriate.
  • Factor 2: Sovereign interests — is there a blocking statute? Party invoking blocking statute must affirmatively demonstrate good faith (Richmark).
  • Factor 3: Likelihood Convention will be effective — expert testimony required.

(c) Sanctions for nonproduction (Rogers / Rest. 3d § 442): Issue production order first; assess good faith; adverse inference most appropriate sanction.

(d) § 1782 assistance: Is applicant an “interested person”? Is there a “foreign or international tribunal”? Proceedings need only be contemplated (Intel v. AMD); no foreign discoverability requirement.

7. FSIA Analysis

(a) Is D a “foreign state,” political subdivision, or agency/instrumentality? — Direct majority share ownership for instrumentality (Dole Food); determined at time suit is filed.

(b) Has D waived immunity (§ 1605(a)(1))? Explicit (contract, treaty, prior litigation); implicit (filing counterclaim, commercial activity in U.S.)?

(c) Commercial activity exception (§ 1605(a)(2)):

  • Characterize the activity: nature of the act, not its purpose (Weltover).
  • Identify which of the three nexus prongs applies (U.S. commercial activity; act in U.S. in connection with foreign commercial activity; foreign act with direct effect in U.S.).
  • Nelson: Identify the “basis” of the claim — is it the commercial recruitment or the sovereign police action?

(d) Expropriation exception (§ 1605(a)(3)): Rights in property? Taking? Violation of international law? U.S. nexus (commercial activity)?

(e) Non-commercial tort exception (§ 1605(a)(5)): Tort wholly occurring in U.S.? Not an intentional tort? Not a discretionary function?

(f) Arbitration exception (§ 1605(a)(6)): U.S. arbitral seat, or U.S. treaty on enforcement?

(g) State-sponsored terrorism (§ 1605A): Designated state? U.S. national claimant/victim?

(h) Attachment: § 1610 post-judgment — commercial activity nexus required; § 1611 special immunities (central bank).

8. Act of State Doctrine

(a) Is there an official public act by a foreign government in its own territory?

(b) Is it a formal act — statute, decree, order, resolution? (Dunhill). A commercial act is not automatically a formal act of state.

(c) Is it a legal act under foreign law? If illegal (bribery), doctrine does not apply (Kirkpatrick).

(d) Does the Second Hickenlooper Amendment apply? Post-1959 expropriation in violation of international law → doctrine does not apply (unless President sends letter).

(e) Are there foreign affairs sensitivity concerns? Courts retain discretion to abstain even beyond formal test.

9. ATS / TVPA Analysis

(a) ATS (§ 1350): Alien plaintiff? Tort only? Violation of law of nations with definite content and wide acceptance (Sosa)? Is defendant a state actor (required for some norms) or non-state actor (for genocide/war crimes, Kadic)? Does the claim “touch and concern” U.S. territory with sufficient force to rebut the presumption against extraterritoriality (Kiobel)? Is the defendant a foreign state (if so, FSIA preempts, Amerada Hess)?

(b) TVPA: Torture or extrajudicial killing? Natural person defendant? State action? Exhaustion of foreign remedies?

10. Recognition and Enforcement of Foreign Judgment

(a) Is the judgment final, conclusive, and enforceable in the rendering country? (UFCMJRA § 3).

(b) Mandatory refusal?: Rendering court lacked PJ (test: UFCMJRA § 5 safe harbors; F2 constitutional minimum contacts standards) or SMJ; system lacks impartial tribunals or due process.

(c) Permissive refusal?: Insufficient notice; fraud; public policy (Telnikoff, SPEECH Act for defamation); conflicting judgment; brought contrary to arbitration or forum selection agreement; tag jurisdiction plus serious inconvenience; doubtful integrity.

(d) Issue preclusion on jurisdictional question?: If D appeared and litigated jurisdiction in F1, issue preclusion may bar re-litigation in F2 (Somportex); default judgment leaves jurisdictional challenge open.

(e) Reciprocity: UFCMJRA drops Hilton’s reciprocity requirement; traditional Hilton rule may still apply in states that have not adopted UFCMJRA.

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