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The Exercise of Personal Jurisdiction over Some Foreign State Instrumentalities Must Be Consistent with Due Process

Abstract: The Fifth Amendment's Due Process Clause places limitations on courts' judicial power. Due process concerns arise when a forum exercises personal jurisdiction over a nonresident defendant for actions carried on outside the forum's territory. Those concerns are alleviated when the defendant has adequate "minimum contacts" with the forum. Although foreign states are presumed to be immune from the jurisdiction of U.S. courts, the Foreign Sovereign Immunities Act (FSIA) grants U.S. courts jurisdiction over foreign states under certain circumstances. Several FSIA exceptions to foreign state immunity extend to conduct that occurs outside of the U.S. Moreover, the jurisdictional nexus requirements associated with some of those exceptions do not necessarily satisfy due process requirements. seemingly, the exercise of personal jurisdiction under the FSIA would have to be consistent with the requirements of due process embodied in the "minimum contacts" test. However, in contrast to corporations, foreign states, like U.S. states, are not "persons" within the meaning of the Due Process Clause and thus are not entitled to its protections. Nevertheless, because the FSIA's definition of "foreign state" is broad, some entities that fall within its scope will be entitled to constitutional treatment different from that of a foreign state. This Comment argues that some foreign state instrumentalities are in fact "persons" entitled to a constitutional personal jurisdiction defense. Accordingly, even when a court has jurisdiction under the FSIA, the court's exercise of personal jurisdiction over an instrumentality that is created as a separate juridical entity not extensively controlled by a foreign state must be consistent with the requirements of the Due Process Clause, provided that such separate treatment does not result in fraud or injustice. The Due Process Clause of the Fifth Amendment to the U.S. Constitution limits courts' exercise of judicial power over "persons."1 One effect of this limitation is that non-resident entities that qualify as "persons" can generally be haled into court for actions carried on outside of the forum's territory only when they have sufficient "minimum contacts" with the forum.2 Conversely, entities that do not qualify as "persons" are not entitled to the protections embodied in the "minimum contacts" test.3 The distinction between persons and non-persons has unique applications with respect to U.S. courts' exercise of jurisdiction under the Foreign Sovereign Immunities Act of 1976 (FSIA),4 which permits plaintiffs to sue foreign states and their instrumentalities in U.S. courts.5 Although foreign states, like U.S. states, are not considered "persons" within the meaning of the Due Process Clause,6 courts presume that foreign state instrumentalities should be treated as juridical entities separate from foreign states.7 Thus, although foreign states are not "persons," foreign state instrumentalities that are not extensively controlled by a foreign state may be "persons" for due process purposes, provided that such separate treatment does not result in fraud or injustice.8 Instrumentalities that qualify as "persons" should be able to raise a personal jurisdiction defense when haled into a U.S. court.9 However, because the FSIA authorizes nationwide and worldwide service of process, making the relevant forum for a "minimum contacts" analysis of such instrumentalities the entire country,10 a court will lack personal jurisdiction over such an instrumentality only in limited circumstances. Such limited circumstances would arise if an instrumentality lacked "minimum contacts" with the U.S." when neither service of process nor the conduct underlying the action occurred in the U.S.12 Part I of this Comment describes the Due Process Clause's personal jurisdiction requirement, as well as the availability of the personal jurisdiction defense to various entities. Part II illustrates that not all constitutional protections are available to foreign defendants. …