Personal jurisdiction over international defendants in the United States

Last updated August 08, 2024

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]

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]

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.

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.).

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."

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.

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

Jurisdiction is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple levels.

Personal jurisdiction is a court's jurisdiction over the parties, as determined by the facts in evidence, which bind the parties to a lawsuit, as opposed to subject-matter jurisdiction, which is jurisdiction over the law involved in the suit. Without personal jurisdiction over a party, a court's 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. A similar principle is that of standing or locus standi, which is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.

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 in the United States Code that gives federal courts jurisdiction over lawsuits filed by foreign nationals for torts committed in violation of international law. It was first introduced by the Judiciary Act of 1789 and is one of the oldest federal laws still in effect in the U.S.

Forum non conveniens (FNC) is a mostly common law legal doctrine through which a court acknowledges that another forum or court where the case might have been brought is a more appropriate venue for a legal case, and transfers the case to such a forum. A change of venue might be ordered, for example, to transfer a case to a jurisdiction within which an accident or incident underlying the litigation occurred and where all the witnesses reside.

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), was a United States Supreme Court case that determined that the policy of United States federal courts would be to honor the Act of State Doctrine, which dictates that the propriety of decisions of other countries relating to their internal affairs would not be questioned in the courts of the United States.

In law, comity is "a principle or practice among political entities such as countries, states, or courts of different jurisdictions, whereby legislative, executive, and judicial acts are mutually recognized." It is an informal and non-mandatory courtesy to which a court of one jurisdiction affords to the court of another jurisdiction when determining questions where the law or interests of another country are involved. Comity is founded on the concept of sovereign equality among states and is expected to be reciprocal.

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.

Lauro Lines s.r.l. v. Chasser, 490 U.S. 495 (1989), is the touchstone case in which the United States Supreme Court laid out the law of interlocutory appeals for United States federal courts.

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.

The act-of-state doctrine is a principle in international law whereby acts done by a state in its own territory cannot be challenged by the national courts of another state.

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. Many ATS claims were filed after the Second Circuit ruling in Filártiga v. Peña-Irala created a new common law cause of action for torture under the ATS: "For purposes of civil liability, the torturer has become—like the pirate and slave trader before him—hostis humani generis, an enemy of all mankind." The Court in Sosa does not find there is a similar cause of action for arbitrary arrest and detention. They wrote that finding new common law causes of action based on international norms would require "a substantial element of discretionary judgment", and explain that the role of common law has changed since ATS was enacted meaning the Court will "look for legislative guidance before exercising innovative authority over substantive law".

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.

Tolling is a legal doctrine that allows for the pausing or delaying of the running of the period of time set forth by a statute of limitations, such that a lawsuit may potentially be filed even after the statute of limitations has run. Although grounds for tolling the statute of limitations vary by jurisdiction, common grounds include:

Mavrix Photo, Inc. v. Brand Technologies, Inc., 647 F.3d 1218, is a case in American intellectual property law involving personal jurisdiction in the context of internet contacts.

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

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