Civil Procedure - Personal Jurisdiction - D.C. Circuit Dismisses Suit against National Port Authority of Liberia for Lack of Personal Jurisdiction

Harvard Law Review, April 2013 | Go to article overview

Civil Procedure - Personal Jurisdiction - D.C. Circuit Dismisses Suit against National Port Authority of Liberia for Lack of Personal Jurisdiction


The rise of the Internet and the rapid pace of globalization have spurred a "proliferation of transnational litigation." (1) Foreign litigants have flocked to the United States, (2) raising questions about the authority of federal courts to assert jurisdiction over foreign defendants. (3) Recently, in GSS Group Ltd. v. National Port Authority, (4) the D.C. Circuit dismissed a suit against the National Port Authority of Liberia (NPA) brought under the Federal Arbitration Act (5) and the Foreign Sovereign Immunities Act of 1976 (6) (FSIA). The court decided that the NPA was entitled to Fifth Amendment due process protections and lacked sufficient contacts with the United States to support the exercise of personal jurisdiction. (7) Commenting on the NPA's entitlement to due process protections, the concurrence suggested that the constitutional right to contest personal jurisdiction should not extend to foreign defendants and Congress should be free to set its own jurisdictional standards. But denying Fifth Amendment protections to foreign defendants is not necessary to afford Congress such flexibility. The Supreme Court has yet to address whether the Fifth Amendment offers foreign defendants the same protections against federal courts sitting in cases arising under federal law that the Fourteenth Amendment does against state courts. Within the existing due process framework, courts could develop a standard for personal jurisdiction under the Fifth Amendment that accounts for the federal government's unique role in international affairs and strengthens Congress's ability to determine whether foreign defendants may be sued in American courts.

The NPA is a public corporation organized under the laws of Liberia and wholly owned by the Liberian government. (8) On June 9, 2005, the NPA entered into a contract with GSS Group, Ltd. (GSS), a construction company headquartered in Israel, for the construction and operation of a container park in Monrovia, Liberia. (9) Several months later, a new Liberian government declared the contract "null and void ab initio" for failing to comply with the country's competitive bidding process. (10) Invoking the contract's binding arbitration clause, GSS submitted the dispute for arbitration in London. (11) The NPA refused to participate, and the arbitrator held it in breach. (12)

Following the decision, GSS filed suit in the United States District Court for the District of Columbia to confirm the arbitral award pursuant to the Federal Arbitration Act and under the FSIA's jurisdictional provisions. (13) The NPA moved to dismiss, arguing among other things that the Due Process Clause of the Fifth Amendment prevented the court from exercising jurisdiction because the NPA lacked sufficient minimum contacts with the United States. (14) GSS offered three responses: (1) "the NPA may not claim any due process protections because it is a foreign instrumentality"; (15) (2) nonresident aliens are not entitled to due process protections; (16) and (3) "foreign state-owned corporations ... should receive no due process protections." (17) GSS did not argue that the NPA had sufficient contacts with the United States to satisfy the Fifth Amendment. (18)

Judge Friedman granted the NPA's motion to dismiss. He noted that while the FSIA provided an adequate statutory basis for establishing personal jurisdiction over the NPA, the "question remains whether the Constitution permits the exercise of personal jurisdiction." (19) Answering in the negative, Judge Friedman rejected each of GSS's arguments against the applicability of Fifth Amendment protections to the NPA. Although "foreign sovereign nations are not among the 'person[s]' afforded rights by the Fifth Amendment," that exclusion only extends to a foreign instrumentality when it is "legally indistinguishable" from the foreign sovereign. (20) GSS failed to allege such a connection between Liberia and the NPA. (21) GSS's argument that nonresident aliens should not receive due process protections fared no better.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Civil Procedure - Personal Jurisdiction - D.C. Circuit Dismisses Suit against National Port Authority of Liberia for Lack of Personal Jurisdiction
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.