Judgments conventions and minimum contracts.

• Author: Borchers, Patrick J.
• Position: Symposium: Could a Treaty Trump Supreme Court Jurisdictional Doctrine?

INTRODUCTION

The United States is a member of international organizations whose business it is to negotiate private law conventions. The most prominent of these is the Hague Conference on Private International Law, but there are others including the Organization of American States (OAS), Unidroit(1) and UNCITRAL.(2) In recent years these organizations have paid increasing attention to the related problems of international judgment recognition and jurisdiction in civil matters.

The reasons for the increasing attention are multiple. The success of the 1958 New York Convention on International Arbitration(3)--to which the United States has been a party since 1970--allows relatively easy recognition of arbitration awards in the more than 100 signatory nations.(4) The odd consequence is that while it is often difficult to obtain foreign recognition of an American judgment, it is often easy to obtain recognition of an American arbitration award. European success with the Brussels(5) and Lugano(6) Conventions has shown that judgments conventions can work regionally, stirring optimism that a transregional convention might succeed.(7) Finally, and most importantly, the acceptance by the Hague Conference of the United States' proposal to negotiate a judgments convention has ensured that this task will be at the forefront of private law international efforts at least through the year 2001.(8)

All of this leads me to the topic of this year's meeting of the Section on Conflict of Laws of the Association of American Law Schools, which is: "Could a Treaty Trump Supreme Court Jurisdictional Doctrine?" The topic is intentionally stated in a provocative fashion to call attention to one of the significant difficulties facing the United States in attempting to enter into any international judgments convention. That significant difficulty is the messy state of American jurisdiction.

Successful judgments conventions adopt relatively clear jurisdictional rules. Article 5(3) of the Brussels Convention, for instance, provides for tort jurisdiction in "the place where the harmful event occurred."(9) The recently-concluded OAS convention on maintenance obligations(10) provides for jurisdiction in support matters in the support receiver's home state.(11)

Sensible though these jurisdictional rules might be, they are not entirely consistent with American jurisdictional doctrine. The Supreme Court cases of World-Wide Volkswagen Corp. v. Woodson(12) and Asahi Metal Industry Co. v. Superior Court(13) forbid tort jurisdiction in the injury state--at least in some cases. Kulko v. Superior Court(14) forbids jurisdiction in the support receiver's home state--at least in some cases. As those cases are purported interpretations of the Due Process Clause of the Fourteenth Amendment, there is a significant question as to whether and to what extent United States entry into a judgments convention that articulates conflicting rules could alter those jurisdictional norms.

Of course, it is not inevitable that such a conflict will come to pass. To the extent that any convention would provide for narrower jurisdictional rules than the articulated constitutional boundaries, no difficulty exists as state and federal governments need not exercise all of the jurisdiction that the Constitution would allow.(15) Moreover, the United States might succeed--referring now to the Hague negotiations--in negotiating a convention that never purports to require an American court to exercise in personam jurisdiction beyond the boundaries of the Supreme Court's minimum contacts rubric.(16) This might be accomplished by leaving critical areas--for example, tort jurisdiction--in a "gray zone" in which the assumption of jurisdiction and recognition of any judgment would be left to the national laws of the signatory nations.(17)

While this solution could work in principle, it has--in my view--some significant practical difficulties. Leaving important subjects such as tort jurisdiction in an unregulated gray zone could deprive any convention of a good deal of its usefulness, and might make other nations--already wary of United States institutions such as jury trials and punitive damages--reluctant to sign.(18) It may well be that United States insistence on negotiating around its domestic jurisdictional law makes it impossible to reach agreement. Moreover, even if a convention--whether negotiated under the auspices of the Hague Conference or another organization--apparently conforms to United States domestic jurisdictional law, the unstable state of domestic jurisdictional law makes it impossible to guarantee that a convention would never produce such a conflict.(19)

In addition to introducing the topic of our Section Meeting, my purpose in this Article is to argue that the United States could (and, if so required to obtain agreement, should) enter into judgments conventions with mandatory jurisdictional rules that are potentially broader than those apparently allowed for under current minimum contacts jurisprudence. In Part I, I explore the relationship of constitutional doctrine to foreign relations.(20) In Part II, I explore aspects of the Supreme Court's jurisdictional jurisprudence that make it amenable to redefinition in the context of an international judgments convention.(21)

1. FOREIGN AFFAIRS AND CONSTITUTIONAL LIMITATIONS

   United States participation in an international judgments convention could cause a collision between two of the oddest constitutional doctrines. One is the Constitution's treatment of foreign affairs, the other is the notion that the Due Process Clause acts as a significant limitation on the jurisdictional reach of American courts.

   Taking foreign affairs first, the Constitution clearly ascribes some significant foreign affairs powers to various branches of the federal government. For example, Article I gives Congress the power "[t]o regulate Commerce with foreign Nations,"(22) "[t]o establish an uniform Rule of Naturalization,"(23) to "regulate the Value . . . of foreign Coin,"(24) "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,"(25) "[t]o raise and support Armies" and other branches of the military,(26) and "[t]o declare War."(27) Article II gives the President several important foreign affairs powers and duties, including making him the "Commander in Chief of the Army and Navy of the United States,"(28) giving him the power to "appoint [with Senate advice and consent] Ambassadors,"(29) and the power "to make Treaties, provided two thirds of the Senators present concur."(30) The Constitution also expressly excludes states from most of the major functions of foreign affairs, including the making of treaties, setting duties on imports and exports, and war activities.(31)

   While these listed constitutional functions surely include many of the important elements of foreign affairs, they are far from exhaustive.(32) Moreover, their division between the legislative and executive branches is seemingly random.(33) Apparently because of this "spotty"(34) treatment, the Supreme Court eventually came around to the conclusion that the Constitution had assumed a pre-existing right of the federal government to conduct foreign affairs even beyond the scope of the powers expressly delegated to it.(35) As a result, both the President and the Congress particularly the Senate as a result of its advice and consent role in treaties and appointments--have an unwritten "Foreign Affairs Power" of almost mystical quality that inevitably alters the constitutional calculus in international matters.(36)

   The second constitutional oddity--the notion that the Due Process Clause limits the jurisdictional reach of courts--may reach back as far as the Supreme Court's 1877 decision in Pennoyer v. Neff.(37) The imposition of direct constitutional limits on in personam jurisdiction was not conclusively established, however, until 1915(38) and the question of how--if at all--strong jurisdictional restraints can be squared with the rest of constitutional law is a continuing subject of debate.(39) Several commentators have argued that the Supreme Court should abandon the notion that the Due Process Clause sets strong, territorially-based limits on jurisdiction.(40) It is not necessary, however, for present purposes to accept this more radical position. Rather, it is sufficient to note that all agree that constitutional limits on jurisdiction--especially in its current "minimum contacts"(41) incarnation--is an uncertain and malleable doctrine.(42) It is, moreover, a notion apparently unknown outside the United States, which one author--writing from a Western European perspective described as "rather fantastic."(43)

   Even giving each of these doctrines its full measure, there are good reasons to think that the constitutional limitations on jurisdiction will not present serious obstacles to an international judgments convention. In times past, it was seriously argued that treaties stood on equal footing to the Constitution.(44) It seems settled, however, that treaties are subject to constitutional limitations. Although dictum, the Supreme Court's discussion of a bird migration treaty in Missouri v. Holland(45) clearly implied that the treaty would be invalid if it encroached upon state authority or violated any affirmative constitutional command.(46)

   While Holland did establish the principle that treaties which pass over constitutional lines cannot be enforced, it also reflected a perhaps-more-important principle of judicial deference to the political branches in foreign affairs matters. The bird migration treaty was, in fact, upheld in Holland, notwithstanding a plausible--particularly given the more constricted...