Reconciling Transnational Jurisdiction: A Comparative Approach to Personal Jurisdiction over Foreign Corporate Defendants in US Courts
Author: Gerlinde Berger-Walliser
The U.S. Supreme Court, in a series of recent cases, has restricted personal jurisdiction over corporate defendants―and foreign corporations in particular. The Court’s restrictions are―although a peripheral concern―motivated by an interest for international comity and an effort to bring US jurisdiction rules more in line with other nations’ laws. However, an in-depth comparative analysis between the EU Brussels Regulation and U.S. Supreme Court opinions reveals that the Supreme Court’s decisions remain deeply grounded in the traditional US paradigm of personal jurisdiction. Predictability appears to have different meanings to the EU legislator and the U.S. Supreme Court. For the Supreme Court, predictability comes at the price of restricting both general and specific jurisdiction to limit exposure of the alien defendant to fewer potential forums. The Brussels Regulation, in contrast, provides an exhaustive list of special heads of jurisdiction. It takes into account the interests of defendants, plaintiffs, and the forum state. The Regulation’s use of clearly defined connecting factors, combined with European rejection of judicial discretion, could serve as a model to mitigate the shortcomings of the current US regime.