Academic journal article Albany Law Review

Negotiating the Tort Long-Arm Provisions of the Judgments Convention

Academic journal article Albany Law Review

Negotiating the Tort Long-Arm Provisions of the Judgments Convention

Article excerpt


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)


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. …

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