Extraterritorial Jurisdiction under American Law - Part II - Chapter 2.5.2 - 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.
As in the World-Wide Volkswagen and Helicopteros cases,94 the constitutional Due Process issue is our main focus in Burger King, but it is worth emphasizing that the jurisdictional starting point in both these cases is the long-arm statute in the forum State concerned.
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Burger King Corporation v. John Rudzewicz
United States Supreme Court
471 U.S. 462 (1985)
The Burger King Paradigm:
Franchisee (in Michigan) contracts to license trademarks and service marks, etc. from Franchisor (in Florida). The contract provides, inter alia, that:
- payment of all required fees shall be made to Franchisor in Florida, and that
- the agreement shall be governed by the law of Florida.
When Franchisee fails to meet its obligations under the contract, inter alia, to make timely payment in Florida of franchise fees due, Franchisor initiates a lawsuit in Florida in a U.S. District Court, claiming not only breach of franchise (contract) obligations, but also tortious (delictual) trademark infringement. Franchisee contends that the application of Florida’s long-arm statute to gain jurisdiction over him would offend “traditional conception(s) of fair play and substantial justice.”
Framing the Issues under American Law:
Because the local Franchisor and the foreign Franchisee reside in different States, the U.S. Federal District Court in Florida has jurisdiction over the subject matter of this case.95 Whether the District Court can exercise extraterritorial (juridical) jurisdiction over the foreign Franchisee is a separate question, the answer to which depends, first of all, on whether the Florida long-arm statute can be applied to these facts.
CHAPTER 2 EXTRATERRITORIAL JURISDICTION
2.5.2 Jurisdiction in Contract CasesA. Supplementary Rules Burger King Corp. v. Rudzewicz (1985) Notes, Questions & Commentary Afram Export v. Metallurgiki Halyps (1985) Notes, Questions & Commentary B. Contract Jurisdiction Quasi in Rem Majique Fashions v. Warwick (1979) Notes, Questions & Commentary C. Forum Agreement M/S Bremen v. Zapata Off-Shore (1972) Notes, Questions & Commentary Volkswagenwerk v. Klippan GmbH (1980) Notes, Questions & Commentary