Negotiating the tort long-arm provisions of the Judgments Convention.

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

1. INTRODUCTION

   The United States is engaged in negotiating a judgments-recognition convention under the auspices of the Hague Conference on Private International Law.(1) The questions that press upon our negotiators(2) are what form of treaty to strive for and what concessions of United States interests are appropriate in order to obtain international agreement. There is already a consensus that the treaty should state what bases for personal jurisdiction a court may exercise in order to render a judgment entitled to recognition and enforcement.(3) There is likely to be a "white list" of approved jurisdictional bases and a "black list" of other bases that signatories agree not to use.

   United States jurisdictional doctrine, as developed by the Supreme Court, creates problems for our negotiators with regard to both the white and the black lists. The Supreme Court has held unconstitutional bases for jurisdiction that appear on the white list of the Brussels Convention on Jurisdiction and Judgments,(4) which is in force in the European Union.(5) Conversely, the Court has approved bases for jurisdiction that are blacklisted in the Brussels Convention.(6) Whitelisting a basis for jurisdiction that our Supreme Court has held a violation of due process creates probably insuperable constitutional difficulties and could prevent the United States from becoming a signatory of the new convention. Blacklisting jurisdiction that the Court has approved does not encounter constitutional difficulties, but there is likely to be political objection to depriving United States plaintiffs of jurisdiction over foreign defendants that otherwise would be available.

   This Article focuses on the problems of reaching agreement on both white list and black list provisions relevant to tort actions. Part II discusses bases for tort jurisdiction whitelisted in the Brussels Convention that the Supreme Court has declared inconsistent with due process.(7) Part III examines whether a treaty can trump the Court's due process rulings.(8) Part IV focuses on bases for tort jurisdiction that have passed due process muster, but that have been blacklisted in the Brussels Convention.(9) Part V concludes that United States courts cannot enforce treaty provisions whitelisting bases for jurisdiction that violate due process.(10) The United States should agree to limit jurisdiction in libel cases and to blacklist general jurisdiction based on either doing business or service on a transiently-present defendant.(11)

2. JURISDICTION WHERE HARM OCCURS

   Article 5(3) of the Brussels Convention provides for jurisdiction "in matters relating to tort . . . in the courts for the place where the harmful event occurred."(12) The Court of Justice of the European Communities is the final authority on construction of the Convention.(13) In the famous case of Handelswekerij G. J. Bier B.V. v. Mines de Potasse d'Alsace S.A.,(14) the Court of Justice gave Article 5(3) a literal interpretation, holding that a Dutch grower whose seedbeds were damaged by discharges of saline wastes into the Rhine in France could sue the polluter in Holland.(15) The court held that "the plaintiff has an option to commence proceedings either at the place where the damage occurred or the place of the event giving rise to it."(16) The only statement in the opinion related to foreseeability is "[l]iability in tort . . . can only arise provided that a causal connexion can be established between the damage and the event in which that damage originates."(17)

   Compare the result in Bier with that in Asahi Metal Industry Co. v. Superior Court,(18) in which our Supreme Court denied California courts jurisdiction over the maker of a defective tube valve that had killed and maimed Californians in California.(19) The claim rejected was for contribution and indemnity asserted by the tube manufacturer who had settled the suits for injury and death.(20) Under the Brussels Convention, there would have been jurisdiction not only under Article 5(3), but also under Article 6(2), which allows "third party proceedings[] in the court seised of the original proceedings."(21)

   Moreover, in Asahi there were four votes to shrink the stream of commerce to a pathetic trickle.(22) Justice O'Connor, joined by Justices Powell and Scalia and Chief Justice Rehnquist, stated that Asahi did not have the constitutionally required "minimum contacts" with California.(23) Although Asahi could foresee that thousands of tubes containing its valves would be sold in California each year, Asahi had not "purposefully directed" its actions toward California.(24) Asahi delivered the valves to the tube manufacturer in Taiwan, and it was the tube manufacturer that shipped twenty percent of its tubes to California.(25) Stating that Asahi did not have minimum contacts with California is another way of saying that even California residents could not sue Asahi in California to recover for the injury and death that Asahi's defective product inflicted there.

   It should come as no surprise that European enterprises are not delighted with Bier's expansive reading of the Brussels Convention's tort long-arm provision.(26) Professor Peter Schlosser of the University of Munich, "one of Europe's foremost scholars in the field of international and comparative civil procedure,"(27) has stated that the European negotiators participating in the judgments project would not have "major objections" to inserting Asahi's "purposeful availment" requirement into the new convention's tort long-arm provision.(28)

   Our negotiators should oppose any provision that will shield from suits in United States courts those foreign manufacturers whose products cause harm in the United States and who could foresee that their products would reach our shores in the ordinary course of commercial distribution. I hope that a majority of our Supreme Court will not shield such manufacturers from suit by injured Americans when the manufacturers take the precaution of relinquishing control over the distribution of their products.

   The constitutional issue that Asahi poses for our negotiators is whether they can agree to tort long-arm provisions that incorporate the broad sweep that the European Court of Justice has given to Article 5(3) of the Brussels Convention,(29) or the generous third-party reach of Article 6(2).(30) Can a convention permit United States courts to exercise tort long-arm jurisdiction beyond the limits that our Supreme Court has read into the Due Process Clause?

3. CAN A CONVENTION OVERCOME DUE PROCESS OBJECTIONS TO JURISDICTION?

   There are three ways that United States courts might have their jurisdictional reach augmented as a result of a convention. First, the Supreme Court, confronted with the fact that other legal systems consider reasonable what has here been condemned, will rethink its position and overrule cases such as Asahi and World-Wide Volkswagen Corp. v. Woodson,(31) that limit the jurisdiction of United States courts far more than the Brussels Convention limits the jurisdiction of European Union courts. Professors Carol Bruch(32) and Friedrich Juenger(33) have suggested the possibility of such a change in due process doctrine triggered by evidence of what others regard as reasonable.

   If the Supreme Court does abandon its attempts to impose more limits on jurisdiction than are required by basic concepts of civilized adjudication, it will be a salutary development. It would be unwise to rely on such a change of position by a Court enamored of inventing jurisdictional doctrine that mocks the realities of modern travel and communication.(34)

   A second way in which a judgments-recognition convention might extend the jurisdictional reach of United States courts is for the Supreme Court to adopt an international standard when ruling on the validity of foreign judgments--a standard reflecting basic concepts of natural justice and more flexible than the restraints that the Court has imposed on United States courts. Professors Willis Reese(35) and Hans Smit(36) have recommended such an international jurisdictional standard, divorced from the peculiarities and restraints of any single...