Personal jurisdiction over international defendants in the United States

Last updated August 20, 2019

Questions over personal jurisdiction over foreign defendants in the United States arise when foreign nationals commit crimes against Americans, or when a person from or in a different country is sued in U.S. courts, or when events took place in another country. Such cases arise when crimes are committed on the high seas or on international flights, when crimes are alleged to be committed by or against Americans in foreign countries (such as under the Foreign Corrupt Practices Act), or when crimes are committed by foreigners against Americans. The Internet also allows computer crime to cross international boundaries.^[1]

Personal jurisdiction is a court's jurisdiction over the parties to a lawsuit, as opposed to subject-matter jurisdiction, which is jurisdiction over the law and facts involved in the suit. If a court does not have personal jurisdiction over a party, its rulings or decrees cannot be enforced upon that party, except by comity; i.e., to the extent that the sovereign which has jurisdiction over the party allows the court to enforce them upon that party. A court that has personal jurisdiction has both the authority to rule on the law and facts of a suit and the power to enforce its decision upon a party to the suit. In some cases, territorial jurisdiction may also constrain a court's reach, such as preventing hearing of a case concerning events occurring on foreign territory between two citizens of the home jurisdiction.

The Foreign Corrupt Practices Act of 1977 (FCPA) is a United States federal law known primarily for two of its main provisions: one that addresses accounting transparency requirements under the Securities Exchange Act of 1934 and another concerning bribery of foreign officials. The Act was amended in 1988 and in 1998, and has been subject to continued congressional concerns, namely whether its enforcement discourages U.S. companies from investing abroad.

The Internet is the global system of interconnected computer networks that use the Internet protocol suite (TCP/IP) to link devices worldwide. It is a network of networks that consists of private, public, academic, business, and government networks of local to global scope, linked by a broad array of electronic, wireless, and optical networking technologies. The Internet carries a vast range of information resources and services, such as the inter-linked hypertext documents and applications of the World Wide Web (WWW), electronic mail, telephony, and file sharing.

Mechanism in public international law for exercising jurisdiction over an international defendant

There are several mechanisms in public international law whereby the courts of one country (the domestic court) can exercise jurisdiction over a citizen, corporation, or organization of another country (the foreign defendant) to try crimes or civil matters that have affected citizens or businesses within the domestic jurisdiction. Many of these jurisdictional "hooks" can even reach conduct that affected the domestic citizen when the citizen was beyond his or her domestic borders. There are five such doctrines:^[2]

Jurisdiction is the practical authority granted to a legal body to administer justice within a defined field of responsibility, e.g., Michigan tax law. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels; e.g. the court has jurisdiction to apply federal law.

A corporation is an organization, usually a group of people or a company, authorized by the state to act as a single entity and recognized as such in law for certain purposes. Early incorporated entities were established by charter. Most jurisdictions now allow the creation of new corporations through registration.

A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint. If the plaintiff is successful, judgment is in the plaintiff's favor, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.

The territorial principle is the most important and widely used. It is the idea that a state may claim jurisdiction over persons and events inside its own territory. So, foreign nationals committing crimes in the U.S. are subject to U.S. courts and U.S. laws.
The nationality principle holds that the government of a citizen can obtain jurisdiction over its citizen even when that citizen is abroad. For example, U.S. citizens are still required to pay federal taxes to the U.S. government when abroad and may be prosecuted for a failure to do so.
The passive personality principle is an interesting offshoot of the nationality principle. It looks to the nationality of the victim to determine jurisdiction, holding that a state may assert jurisdiction over persons and events outside a state's territory on the basis that its citizen has been harmed. In the case of United States v. Roberts, 1 F.Supp. 2d 601 (E.D. La. 1998), which had an unusual set of facts, the victim of a crime of sexual abuse of a minor (who was a U.S. citizen) had a case tried against her aggressor who was a citizen of the Caribbean island of Saint Vincent and the Grenadines. The crime took place on international waters on board a ship registered in Liberia and owned by a company incorporated in the Republic of Panama. None of the regular methods of jurisdiction, forum non conveniens, or comity would have worked. Id. The defendant was indicted by a federal grand jury in the Eastern District of Louisiana and the defendant's motion to dismiss for lack of personal jurisdiction was denied by the federal district court, which found jurisdiction under the passive personality principle.
The protective principle is one of national security and it holds that a state may have jurisdiction over a defendant accused of acts in pursuance of overthrowing the host state's government. See United States v. Yousef, 327 F3d 56 (2d Cir. 2003).
The universality principle (principle of universal jurisdiction) is closely aligned with the international law doctrine of peremptory norms ( jus cogens ). The principle holds that all states have jurisdiction over crimes that are universally recognized to be a crime against humanity. These have historically included piracy, slave-trading, torture, genocide, and perhaps terrorism.

The territorial principle is a principle of public international law under which a sovereign state can prosecute criminal offences that are committed within its borders. The principle also bars states from exercising jurisdiction beyond their borders, unless they have jurisdiction under other principles such as the principle of nationality, the passive personality principle, the protective principle, and possibly universal jurisdiction.

The United States of America has separate federal, state, and local governments with taxes imposed at each of these levels. Taxes are levied on income, payroll, property, sales, capital gains, dividends, imports, estates and gifts, as well as various fees. In 2010, taxes collected by federal, state, and municipal governments amounted to 24.8% of GDP. In the OECD, only Chile and Mexico are taxed less as a share of their GDP.

Sexual abuse, also referred to as molestation, is abusive sexual behavior by one person upon another. It is often perpetrated using force or by taking advantage of another. When force is immediate, of short duration, or infrequent, it is called sexual assault. The offender is referred to as a sexual abuser or molester. The term also covers any behavior by an adult or older adolescent towards a child to stimulate any of the involved sexually. The use of a child, or other individuals younger than the age of consent, for sexual stimulation is referred to as child sexual abuse or statutory rape.

In the United States, the federal courts have recognized an important mechanism for acquiring jurisdiction over foreign defendants known as the effects doctrine. The effects doctrine is an offshoot of the territorial principle. Briefly, the effects doctrine says that if the effects of extraterritorial behavior or crimes adversely affect commerce or harm citizens within the United States, then jurisdiction in a U.S. court is permissible. The first case to establish the effects doctrine was United States v. Alcoa , 148 F.2d 416 (2d Cir. 1945) (Learned Hand, J.).

Commerce relates to "the exchange of goods and services, especially on a large scale". It includes legal, economic, political, social, cultural and technological systems that operate in a country or in international trade.

United States v. Alcoa, 148 F.2d 416, is a landmark decision concerning United States antitrust law. Judge Learned Hand's opinion is notable for its discussion of determining the relevant market for market share analysis and—more importantly—its discussion of the circumstances under which a monopoly is guilty of monopolization under section 2 of the Sherman Antitrust Act.

The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York, and Vermont, and the court has appellate jurisdiction over the district courts in the following districts:

The ALCOA case brought charges against a foreign consortium of aluminum traders and producers who had affected the price of raw aluminum and goods manufactured from aluminum in the United States through unfair trade practices of price fixing in violation of section 1 of the Sherman Antitrust Act ("every contract, combination ... or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal").^[3] The effects doctrine has also been incorporated into § 402 of the Restatement of Foreign Relations Law of the United States, Third: "a state has jurisdiction to prescribe law with respect to ... (c) conduct outside its territory that has or is intended to have substantial effect within its territory."

A consortium is an association of two or more individuals, companies, organizations or governments with the objective of participating in a common activity or pooling their resources for achieving a common goal.

Price fixing is an agreement between participants on the same side in a market to buy or sell a product, service, or commodity only at a fixed price, or maintain the market conditions such that the price is maintained at a given level by controlling supply and demand.

Raju case

In one case, the decision to allow jurisdiction in a U.S. court over claims of copyright infringement and cybersquatting was premised on an effects doctrine theory of jurisdiction. Graduate Management Admission Council v. Raju, 241 F.Supp.2d 589 (E.D. Va., 2003). The defendant in Raju was a citizen of India who sold "official" past Graduate Record Examinations (GREs) to U.S. customers that were of dubious origin and in violation of the plaintiff, copyright-holder Graduate Management Admission Council (GMAC). These exams were advertised and sold over the Internet.

Copyright infringement Intellectual property violation

Copyright infringement is the use of works protected by copyright law without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works. The copyright holder is typically the work's creator, or a publisher or other business to whom copyright has been assigned. Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement.

Cybersquatting, according to the United States federal law known as the Anticybersquatting Consumer Protection Act, is registering, trafficking in, or using an Internet domain name with bad faith intent to profit from the goodwill of a trademark belonging to someone else. The cybersquatter then offers to sell the domain to the person or company who owns a trademark contained within the name at an inflated price.

United States District Court for the Eastern District of Virginia United States district court

The United States District Court for the Eastern District of Virginia is one of two United States district courts serving the Commonwealth of Virginia. It has jurisdiction over the Northern Virginia, Hampton Roads, and Richmond metro areas and surrounding locations with courthouses located in Alexandria, Norfolk, Richmond and Newport News.

The defendant never made an appearance on U.S. territory depriving the plaintiffs of one easy avenue of obtaining in personam jurisdiction over the defendant – the simple act of being able to serve process on the defendant while the defendant is visiting and within the territory of the United States (this would be the traditional territorial principle of jurisdiction at work, to use terms of international law). The defendant was not a citizen of a particular state. The court described the jurisdiction it exercised over Raju's conduct of selling illegal copies of the exams to potential purchasers in several states within the territory of the U.S. as "targeting" the U.S. market for U.S. purchasers. Under these circumstances, the court found that personal jurisdiction was proper under a theory of national jurisdiction: the defendant had targeted the U.S. at large from outside of the territory and intended to avail himself of the opportunity of selling test answers to a U.S. graduate school entrance test to his most likely customers: Americans.

A judgment was issued against the defendant Raju who defaulted by never making an appearance to the district court where he was being sued.

Additional cases

In a procedurally complicated case, Yahoo! Inc. v. La Ligue Contre Le Racisme et l'Antisemitisme (LICRA) , the 9th Circuit Court of Appeals held that it had personal jurisdiction over two French organizations who sued Yahoo! in a French court.^[4] The court found that all of the following acts, in combination, were sufficient contacts to create personal jurisdiction over the French organizations: sending letters to Yahoo!, suing Yahoo! and serving Yahoo! in California, and the suit resulting in orders that Yahoo!'s officers in California comply with French law.

Related Research Articles

Universal jurisdiction allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, country of residence, or any other relation with the prosecuting entity. Crimes prosecuted under universal jurisdiction are considered crimes against all, too serious to tolerate jurisdictional arbitrage.

Extraterritorial jurisdiction (ETJ) is the legal ability of a government to exercise authority beyond its normal boundaries.

The Alien Tort Statute, also called the Alien Tort Claims Act (ATCA), is a section of the United States Code that reads: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." Since 1980, courts have interpreted this statute to allow foreign citizens to seek remedies in U.S. courts for human-rights violations for conduct committed outside the United States.

The Foreign Sovereign Immunities Act (FSIA) of 1976 is a United States law, codified at Title 28, §§ 1330, 1332, 1391(f), 1441(d), and 1602–1611 of the United States Code, that establishes the limitations as to whether a foreign sovereign nation may be sued in U.S. courts—federal or state. It also establishes specific procedures for service of process, attachment of property and execution of judgment in proceedings against a foreign state. The FSIA provides the exclusive basis and means to bring a lawsuit against a foreign sovereign in the United States. It was signed into law by President Gerald Ford on October 21, 1976.

Forum shopping is a colloquial term for the practice of litigants having their legal case heard in the court thought most likely to provide a favorable judgment. Some jurisdictions have, for example, become known as "plaintiff-friendly" and so have attracted litigation even when there is little or no connection between the legal issues and the jurisdiction in which they are to be litigated.

Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. For instance, bankruptcy court only has the authority to hear bankruptcy cases.

False arrest is a common law tort, where a plaintiff alleges they were held in custody without probable cause, or without an order issued by a court of competent jurisdiction. Although it is possible to sue law enforcement officials for false arrest, the usual defendants in such cases are private security firms.

Forum non conveniens (FNC) is a mostly common law legal doctrine whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties. As a doctrine of the conflict of laws, forum non conveniens applies between courts in different countries and between courts in different jurisdictions in the same country. Forum non conveniens is not applicable between counties or federal districts within a state.

Criminal jurisdiction is a term used in constitutional law and public law to describe the power of courts to hear a case brought by a state accusing a defendant of the commission of a crime. It is relevant in three distinct situations:

to regulate the relationship between states, or between one state and another;
where the nation is a federation, to regulate the relationship between the federal courts and the domestic courts of those states comprising the federation; and
where a state only has, to a greater or lesser extent, a single and unified system of law, it is the law of criminal procedure to regulate what cases each classification of court within the judicial system shall adjudicate upon. People must be tried in the same state the crime is committed.

In law, the enforcement of foreign judgments is the recognition and enforcement in one jurisdiction of judgments rendered in another ("foreign") jurisdiction. Foreign judgments may be recognized based on bilateral or multilateral treaties or understandings, or unilaterally without an express international agreement.

Long-arm jurisdiction is the ability of local courts to exercise jurisdiction over foreign defendants, whether on a statutory basis or through a court's inherent jurisdiction. This jurisdiction permits a court to hear a case against a defendant and enter a binding judgment against a defendant residing outside the jurisdiction concerned.

Ligue contre le racisme et l'antisémitisme et Union des étudiants juifs de France c. Yahoo! Inc. et Société Yahoo! France is a French court case decided by the Tribunal de grande instance of Paris in 2000. The case concerned the sale of memorabilia from the Nazi period by Internet auction and the application of national laws to the Internet. Some observers have claimed that the judgement creates a universal competence for French courts to decide Internet cases.

Personal jurisdiction in Internet cases refers to a growing set of judicial precedents in American courts where personal jurisdiction has been asserted upon defendants based solely on their Internet activities. Personal jurisdiction in American civil procedure law is premised on the notion that a defendant should not be subject to the decisions of a foreign or out of state court, without having "purposely availed" himself of the benefits that the forum state has to offer. Generally, the doctrine is grounded on two main principles: courts should protect defendants from the undue burden of facing litigation in an unlimited number of possibly remote jurisdictions, and courts should prevent states from infringing on the sovereignty of other states by limiting the circumstances under which defendants can be "haled" into court.

Territorial jurisdiction in United States law refers to a court's power over events and persons within the bounds of a particular geographic territory. If a court does not have territorial jurisdiction over the events or persons within it, then the court cannot bind the defendant to an obligation or adjudicate any rights involving them. Territorial jurisdiction is to be distinguished from subject-matter jurisdiction, which is the power of a court to render a judgment concerning a certain subject matter, or personal jurisdiction, which is the power of a court to render a judgment concerning particular persons, wherever they may be. Personal jurisdiction, territorial jurisdiction, subject-matter jurisdiction, and proper notice to the defendant are prerequisites for a valid judgment.

Heath v. Alabama, 474 U.S. 82 (1985), is a case in which the United States Supreme Court ruled that, because of the doctrine of "dual sovereignty", the double jeopardy clause of the Fifth Amendment to the Constitution does not prohibit one state from prosecuting and punishing somebody for an act of which they had already been convicted of and sentenced for in another state.

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), was a United States Supreme Court case involving the Alien Tort Statute and the Federal Tort Claims Act.

Frisbie v. Collins, 342 U.S. 519 (1952), was a decision by the United States Supreme Court, which held that kidnapping of suspects by State authorities is constitutional. The defendant was tried in Michigan after being abducted by Michigan authorities in Chicago, Illinois. The case was related to the previous case of Ker v. Illinois (1886). Both cases together created the Ker-Frisbie Doctrine, which is used to validate the reasoning behind seemingly illegal and unconstitutional extradition and abduction from other countries or from state to state, on the basis of a prosecution being brought against the individual.

In United States law, the federal government as well as state and tribal governments generally enjoy sovereign immunity, also known as governmental immunity, from lawsuits. Local governments in most jurisdictions enjoy immunity from some forms of suit, particularly in tort. The Foreign Sovereign Immunities Act provides foreign governments, including state-owned companies, with a related form of immunity—state immunity—that shields them from lawsuits except in relation to certain actions relating to commercial activity in the United States. The principle of sovereign immunity in US law was inherited from the English common law legal maxim rex non potest peccare, meaning "the king can do no wrong." In some situations, sovereign immunity may be waived by law.

References

↑ "Cybercrime: Public and Private Entities Face Challenges in Addressing Cyber Threats."United States Government Accountability Office June 2007.
↑ Damrosch, Henkin, Pugh, Schachter, and Smit, International Law: Cases and Materials, 3 Ed., West 1993, 1090.
↑ Alcoa, 148 F.2d at 416.
↑ 433 F.3d 1199

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[1] "Cybercrime: Public and Private Entities Face Challenges in Addressing Cyber Threats."United States Government Accountability Office June 2007.

[2] Damrosch, Henkin, Pugh, Schachter, and Smit, International Law: Cases and Materials, 3 Ed., West 1993, 1090.

[3] Alcoa, 148 F.2d at 416.

[4] 433 F.3d 1199