Where America ends and the international order begins: interpreting the jurisdictional reach of the U.S. Constitution in light of a proposed Hague Convention on jurisdiction and satisfaction of judgments.

AuthorStrauss, Andrew L.
PositionSymposium: Could a Treaty Trump Supreme Court Jurisdictional Doctrine?

INTRODUCTION

Despite all of the attention given to personal jurisdiction in civil cases by the United States Supreme Court, the Court has never articulated a discrete approach to international jurisdiction. Rather, in cases with foreign plaintiffs or defendants such as Perkins v. Benguet Consolidated Mining Co.,(1) Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee,(2) Helicopteros Nacionales de Colombia, S.A. v. Hall,(3) and Asahi Metal Industry Co. v. Superior Court,(4) the Court has approached international jurisdiction as an ad hoc appendage to its doctrine of domestic jurisdiction. Specifically, the Court, as well as the legal community in general, has assumed that the U.S. Constitution prescribes America's international jurisdictional reach as if it were prescribing domestic jurisdiction among states within the United States. Thus, with minor variation,(5) the Court applies the constitutionally-derived minimum contacts test to international cases.

The moment is right for examining this assumption. As the topic of this Symposium suggests, the United States and other countries are now in the process of negotiating a Hague Convention which will prescribe personal jurisdiction in international cases. If the Constitution does, in fact, govern the international ambit of the United States' jurisdiction in these cases, there is a potential for conflict between the Constitution and the treaty. The existence of such a potential conflict would lead to the possibility that the treaty, at least in part, would be held invalid by United States courts.(6) This could both damage U.S. relations with its treaty-making partners(7) and undermine the treaty's purpose of promoting a coordinated and coherent international jurisdictional system. Such results would be particularly unfortunate at a time when the legal demands of the global economy have amplified the advantages of developing and maintaining a well-coordinated international jurisdictional system(8) These advantages are three-fold.

First, a mutually agreed-upon international jurisdictional system is integral to overcoming existing barriers to the satisfaction of foreign judgments--the major goal of the proposed Hague Convention. Clearly, in a world where defendants' assets may not be in the jurisdiction rendering judgment, if judgments cannot be satisfied across national borders, the efficacy of the international dispute resolution system is greatly impaired. National courts have refused to execute foreign judgments in cases in which they consider the foreign court to have asserted its jurisdiction too broadly.(9) Therefore, the greater the uniformity of principles of jurisdiction that can be agreed upon, the greater the range of cases about which the parties negotiating the proposed Hague Convention can reach agreement to require states to satisfy foreign judgments.

Second, a successfully functioning treaty regime would help reduce opportunities for forum shopping. If nations maintain the ability to determine their own jurisdictional realms autonomously while simultaneously failing to apply uniform choice of law rules, the outcome of cases will depend upon plaintiffs finding the forum that applies the most pro-plaintiff substantive law. This frustrates the goal of legal predictability and continues an international system which does not have the ability to coordinate which state's laws should apply in a given situation. A treaty-based system of international jurisdictional rules, while unlikely to eliminate the potential for forum shopping completely, would provide that it only occur to the extent that it is not inconsistent with the intended functioning of an ordered international system.

Third, such a treaty could correct the discriminatory way in which American citizens are subjected to overly-broad assertions of jurisdiction by European countries. These countries are already parties to a European jurisdiction and satisfaction of judgments treaty regime,(10) under which principles of jurisdiction are well-defined.(11) The Convention, however, requires that parties enforce judgments of other signatory states against domiciliaries of non party states like the United States even when those judgments result from domestic assertions of jurisdiction that are far broader than the limitations prescribed as between treaty parties.(12) Specifically relevant are Articles 14 and 15 of the French Civil Code which permit French courts to assert jurisdiction over foreign nationals whenever a French national is either a plaintiff or defendant in a suit.(13) Thus, if I, as an American domiciliary, am alleged to have committed a tort(14) in the United States against a French citizen, under the terms of the treaty, I could be sued in France. Likewise, German law provides that if the defendant has any property in Germany, then German courts would have unlimited personal jurisdiction over the defendant.(15) If I, therefore, happen to own a few shares of stock in German corporations,(16) German courts could assert unlimited personal jurisdiction over me. Moreover, British courts would be required to honor such a French or German judgment against any British assets that I might have.

Finally, although rare, the present lack of a coordinated treaty regime also allows for negative conflicts of jurisdiction where no state has the authority or willingness to assert jurisdiction over a dispute.(17) A treaty regime could coordinate jurisdictional responsibilities so that some forum would always be available to hear any legitimate dispute.

Because the advantages of participating in a coordinated jurisdictional system are significant, it would be unfortunate if the Constitution were to be interpreted to stand in the way of their realization. I do not believe that such an interpretation is required. My thesis is that the Framers of the Constitution understood international jurisdiction between the nation-states of the world to be allocated by the international order, and only meant the Constitution to prescribe domestic jurisdiction among the fifty states within the United States and between those states and the federal system. I have argued elsewhere that consistency with the paradigm of state sovereignty (which provides the conceptual foundation for the international system), requires that the global order define the ambit of nation-state jurisdiction.(18) In this Article, I argue that this paradigmatic approach is specifically embodied in the United States Constitution.

To set the stage, Part I.A. discusses the basic principles used by American courts to determine which law is applicable when domestic and international law are in conflict.(19) With this background in mind, Part I.B turns to the specific problem of how an American court would resolve a conflict between a treaty governing international jurisdiction and U.S. law, particularly the Constitution.(20) Part I.B closes by explaining why constitutional provisions would be considered supreme over provisions of a jurisdictional treaty. The remainder of the Article explains that no such conflict should be seen to exist since the Constitution does not prescribe international jurisdiction. The foundation for this argument is laid out in Part II.A where I identify the fundamental constitutional principles for determining where U.S. constitutional law ends and international law begins.(21) My claim is that these principles, derived from the basic paradigm of state sovereignty, provide that domestic law regulates private actors and the state's internal organs of administration, while international law regulates relations between nation-states. Part II.B applies these principles to jurisdiction.(22) After briefly defining jurisdiction as being about the allocation of authority between constituent units of an organizational system, Part II.B broadly demonstrates that while the Constitution prescribes jurisdiction among the fifty states of the United States, it defers to international law to prescribe jurisdiction among the nation-states of the world. Part III.A conducts a brief historical review of cases to show that this was well understood during the "era of territorial jurisdiction."(23) Part III.B discusses the transition to the present era of contacts jurisdiction, and explains that contacts jurisdiction has obscured the basic purpose of jurisdiction. As a result, people today erroneously assume that the Constitution governs international jurisdiction.(24) Contacts jurisdiction has come to be viewed as not about allocating authority among states, but about protecting the rights of defendants from over-assertions of authority by the state, a subject that can easily be misconstrued as a matter for domestic regulation.(25) The Article explains how contacts jurisdiction has appeared to lose its jurisdictional function both because it allows for states to have overlapping jurisdictional realms, and because the Supreme Court, in proclaiming the domestic doctrine of contacts jurisdiction, resorted to a formulation which denied that the doctrine affected the allocation of authority between states.

  1. RESOLVING CONFLICTS BETWEEN U.S. AND INTERNATIONAL LAW

    A. The Doctrine of Dualism

    The usual starting point for resolving conflicts between domestic legal doctrine and international treaty law is the doctrine of dualism as it has been adopted in the United States.(26) Dualism posits that domestic (or "municipal law," as it is often called) and international law are two completely separate systems of law.(27) As such, each has its own law making, enforcement, and adjudication systems.(28) American courts, as agents of the American system, are limited to applying American law. By long-standing authority, however, "[i]nternational law is part of our law,"(29) and when appropriate, it is incorporated into, or becomes a part of, American federal law.(30) In fact, Article VI of the United States Constitution defines "treaties"...

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