The FSIA's Service Requirements and Due Process

• Author: Ernesto Sanchez
• Pages: 281-292

281

THE F SIA’S SER V IC E REQ UI R EM ENT S A N D

DUE PROCES S

§ 25.1 INTRODUCTION

e FSIA integrates concepts of personal and subject matter jurisdiction so that courts have

personal jurisdiction in any case where the statute authorizes subject matter jurisdiction and

proper service is made. Courts, however, have disagreed as to the extent to which the FSIA’s

service guidelines conform to procedural due process—dened as one’s constitutional right to

be adequately notied of charges or legal proceedings against him or her, to have an opportunity

to be heard at these proceedings, and to the resolution of the disputes underlying these charges

and proceedings by an impartial person or panel.1

§ 25.2 PERSONAL JURISDICTION IN U.S. COURTS OVER

NONRESIDENTS

In general, a person may submit to a state’s authority in a number of ways. One means of doing

so is explicit consent,2 exemplied by a defendant’s appearance in court, regardless of the power

of the forum state or a plainti to serve process.3 is concept is consistent with the FSIA’s

provision that an appearance by a defendant does not confer personal jurisdiction with respect

to any claim not arising out of any transaction or occurrence enumerated in the statute’s excep-

tions to immunity from subject matter jurisdiction (i.e., a defendant’s appearance in defense of

a claim falling under one of these exceptions will result in personal jurisdiction).4 e FSIA’s

provisions for special service arrangements negotiated by parties also have the eect of waiving

rights to contest personal jurisdiction akin to how forum selection clauses can waive rights to

contest venues the clauses specify.5

Citizenship or domicile—or, by analogy, a corporation’s location of incorporation or princi-

pal place of business—also reects an intent to submit to the corresponding U.S. state’s powers.6

1. See Goldberg v. Kelly, 397 U.S. 254, 267 (1970); see also U.S. C. amends. V (stating that no person shall be

deprived of “life, liberty, or property” without due process of law), XIV, § 1 (stating that no U.S. state shall deprive a

person of “life, liberty, or property” without due process of law).

2. J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780, 2787 (2011).

3. See Insurance Company of Ireland v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 703 (1982).

4. 28 U.S.C. § 1330(c); cf. Skeen v. Federative Republic of Brazil, 566 F. Supp. 1414, 1416 (D.D.C. 1983) (in case

where defendant declined to enter special appearance and authorized counsel only to request that court dismiss case sua

sponte (i.e., on its own, a response to reply memorandum for sole purpose of contesting jurisdiction qualied as appear-

ance equivalent to motion to dismiss).

5. See 28 U.S.C. § 1608(a)(1), (b)(1); see also, e.g., Nat’l Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 316 (1964)

(“[P]arties to a contract may agree in advance to submit to the jurisdiction of a given court.”); Petrowski v. Hawkeye-

Security Co., 350 U.S. 495, 495-96 (1956) (ruling that a stipulation of the parties that each of them voluntarily submits

to the jurisdiction of the court without service of process, the same as if personal service had been obtained by each

against the other, waives any right to assert a lack of personal jurisdiction).

6. Nicastro, 131 S. Ct. at 2787 (citation omitted).

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