Much of the analysis in court decisions on the basis for jurisdiction over parties not resident in the United States has been on the extent to which they have business contacts with the jurisdiction. This focus on “long-arm” jurisdiction and its concern with fairness overlooks another concept under which jurisdiction may be obtained: service of a summons on a person who is physically present in the jurisdiction but who otherwise has no contacts with it. Is this type of jurisdiction—known as transitory or “tag” jurisdiction—alive and well in international cases, in which extraterritorial jurisdiction has frequently been based on elaborate balancing tests? 

Until recently, the answer to this question might well have been, “Probably not.” For example, in Schaffer v. Heitner, the Supreme Court stated, “ . . . all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.” The Restatement (Third) of Foreign Relations Law of the United States states: “Tag jurisdiction, i.e. jurisdiction based on service of process on a person only transitorily in the territory of the state, is not generally acceptable under international law.”

Not too long ago, however, the Supreme Court of the United States answered this question with a generally firm, “Yes.” In Burnham v. Superior Court of California, the Supreme Court held that physical presence alone is a sufficient basis upon which a court may exercise jurisdiction over a natural person. A plurality of justices, in an opinion written by Justice Antonin Scalia, declared:

The short of the matter is that jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of “traditional notions of fair play and substantial justice.” That standard was developed by analogy to “physical presence,” and it would be perverse to say that it could not be turned against that touchstone of jurisdiction.

The plurality opinion thus concluded that due process did not require a connection or “minimum contacts” between the defendant and the forum in “tag” jurisdiction situations. This chapter examines the applicability of this physical presence rule to international litigation, with respect to both nonresident individual and corporate defendants.