Extraterritorial Jurisdiction under American Law - Part I - Chapter 2.5 - 2.5.1 - Transnational Litigation and Commercial Arbitration - 3rd Edition
Joseph Lookofsky is Professor of Private and Commercial Law at the University of Copenhagen. He received his B.A. in Economics from Lehigh University, his J.D. from the New York University School of Law, and was admitted to the New York State Bar in 1971. He received his Danish law degrees (cand.jur. and dr.jur.) from the University of Copenhagen and joined the Law Faculty there in 1982. Professor Lookofsky has lectured on the CISG and other international commercial law topics for the Danish Bar Association (Advokatsamfund), the Duke University Law School in North Carolina, the University of Bologna (Facoltá di Giurisprudenza), the Albert-Ludwigs-Universität Freiburg (Institut für Ausländisches und Internationales Privatrecht), and the Cornell-Paris I (Sorbonne) Summer Institute of International & Comparative Law. He is also Secretary General of the Danish Committee for Comparative Law (Association Internationale des Sciences Juridiques.
Ketilbjorn Hertz is Senior Consultant with the Danish Ministry of Justice, which he joined in 1997, and in that capacity he has participated in the drafting of important legislation, including the Bill, which led to the adoption of the Danish Arbitration Act 2005 He received degrees from the University of Copenhagen, B.A. in law in 1991, cand.jur. in 1993, B.A. in French in 1998, and Ph.D. in law in 1998.
2.5. EXTRATERRITORIAL JURISDICTION UNDER AMERICAN LAW
2.5.1. Long-Arm Jurisdiction, State and Federal Courts, and Due Process of Law
Suppose plaintiff (A) seeks to commence legal proceedings in an American court — (e.g.) a court located within the State of New York — against a non-domiciliary (B), i.e., a defendant who resides outside New York State territory, (e.g.) in California or in Germany.
As in the case of similar regional or transnational litigation in European courts, we need first to ask whether the New York court has jurisdiction, that is to say, the power to enter a judgment which binds the foreign defendant or affects his or her interest in property. As noted previously, this kind of court power is sometimes referred to as jurisdiction to adjudicate;1 it is also sometimes referred to as juridical jurisdiction. In situations where the “long arm” of State law “reaches out,” so to allow its courts to exercise jurisdiction over defendants outside State territory, we can also describe the phenomenon as the exercise of extraterritorial jurisdiction.2
The United States functions as a federal system: a system based on the allocation and sharing of power between the fifty individual States and the Federal government in Washington. The exercise of (extraterritorial) juridical jurisdiction by American courts also reflects this sharing of power.
After the American Revolutionary War, but before the new American Constitution was signed in 1789, each of the original 13 “States” (then colonies) enjoyed full sovereign status. And although these entities — by agreeing to adopt the Constitution and thus granting certain powers to the new central government — relinquished some portion of their sovereignty, all powers not specifically granted by the Constitution to the Federal government were retained by the individual States.
CHAPTER 2 EXTRATERRITORIAL JURISDICTION
2.5 Jurisdiction under American Law2.5.1 Long-Arm; State & Federal Courts; Due Process World-Wide Volkswagen v. Woodson (1980) Notes, Questions & Commentary Helicopteros Nacionales v. Hall (1984) Notes, Questions & Commentary