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An Introduction to American “Long-arm Jurisdiction” and Its Use with the Foreign Corrupt Practices Act By 刘相文   Graham Adria   王涛 2019-04-15

 

 

We have noticed that Chinese legal observers are prone to use the term “long-arm jurisdiction” to broadly refer to a range of different types of jurisdictional concepts.[1] This is not in line with U.S. jurisprudence. American courts treat long-arm jurisdiction as a synonym for “specific jurisdiction,” a legal term of art in American civil procedure law.[2] Specific jurisdiction allows a court to exercise extraterritorial adjudicative jurisdiction over nonresident defendants in civil litigation.[3] The legal basis for specific jurisdiction is found in “long-arm statute” or “long-arm clauses” – hence the synonym.

 

We discuss specific jurisdiction in the context of the Foreign Corrupt Practices Act (“FCPA”), an American federal statute that regulates corporate bribery and false or inaccurate accounting, and includes civil liability and criminal penalties.[4] The FCPA is an important American statute that has global influence over the way multinational companies – Chinese, American, etc. – operate their businesses and run their legal compliance programs due to its extraterritorial provisions.[5] However, the dual civil and criminal elements have long been a source of confusion due to mistakes regarding applicable standards and tests, leading to misunderstandings about the statute, its reach, and its consequences.

 

This article will therefore examine the use of specific jurisdiction in federal courts, which are responsible for the FCPA.  First, we define extraterritorial jurisdiction. Second, we lay out the different ways in which extraterritorial jurisdiction manifests itself – prescriptive jurisdiction, adjudicative jurisdiction, and enforcement jurisdiction. Third, we detail what exactly specific jurisdiction is and how it developed. Finally, we describe the way in which the validity of specific jurisdiction is established in US courts: the “minimum contacts analysis” and “reasonableness inquiry.”

 

Extraterritorial Jurisdiction in the United States

 

   

 

1) 

Extraterritorial Jurisdiction

The term jurisdiction is defined as the authority to affect legal interests.[6] Extraterritorial jurisdiction is therefore the authority of a government entity – executive, legislative, or judicial – to affect legal interests beyond its territorial borders.[7] In the United States, which utilizes a federal system of government, extraterritorial jurisdiction can occur in a number of different ways due to the division of legal powers between different levels and branches of government. For instance, extraterritorial jurisdiction refers to a New York state court exercising jurisdiction over a resident of California.[8] However, for this article, we are concerned with how a federal court can exercise jurisdiction over nonresidents of the United States.

 

 

   

 

2)

The Three Types of Extraterritorial Jurisdiction

American courts have interpreted international law as allowing the United States to have some say over “conduct outside its territory which has or is intended to have substantial effects within its territory as well as conduct of its nationals even when they are outside its borders.”[9] Extraterritorial jurisdiction manifests itself in three different ways: prescriptive jurisdiction, adjudicative jurisdiction, and enforcement jurisdiction. However, these are not neat and discrete categories and while they are used by U.S. courts, these terms act more as an analytical tool to understand the extent and nature of extraterritorial jurisdiction.[10]

 

Prescriptive jurisdiction is the power to make and apply law to persons or things and is usually associated with the legislative branch of government.[11] For example, the United States Congress exercised extraterritorial prescriptive jurisdiction when it passed the FCPA with provisions that prohibit, among others, bribing foreign officials outside of the territory of the United States.

 

Adjudicative jurisdiction is the power to subject persons or things to judicial processes and is accordingly associated with the judicial branch of government.[12] The FCPA itself does not contain provisions granting a court extraterritorial adjudicative jurisdiction. However, the Securities and Exchange Act of 1934 (“Exchange Act”), which the FCPA is a part of, grants extraterritorial jurisdiction to federal courts for offenses occurring outside of the United States in certain circumstances.[13]

 

Enforcement jurisdiction is the power to compel compliance, or to punish noncompliance with the law, and is usually associated with the executive branch of government.[14] Unlike the previous two forms of jurisdiction, enforcement jurisdiction has remained largely subject to territorial limits. The most extreme form of enforcement jurisdiction–the government’s ability to physically coerce–generally cannot legally occur in a foreign country. A more moderate example of civil enforcement jurisdiction would be when a U.S. “court orders enforcement of a subpoena requiring the production of documents [from a nonresident] and threatens penalties for noncompliance with that subpoena.”[15]

 

 

   

 

3) 

Specific Jurisdiction

 

For a U.S. court to have adjudicative jurisdiction in civil matters, it must have both subject-matter jurisdiction and personal jurisdiction. Subject-matter jurisdiction concerns a “court’s competence to adjudicate a particular category of cases.”[16] For example, only a federal court can hear a case relating to federal legislation, such as the FCPA. Personal jurisdiction refers to the authority of a court to hear cases concerning a particular person.

 

Historically, U.S. courts were only able to hear civil matters concerning residents within their own forum. This is called general jurisdiction. The rise of inter-state commerce and travel created issues as courts would be limited in their ability to adjudicate situations that occurred in their territorial limits but involved a nonresident defendant who left the forum. To fix this gap, laws began to be passed that allowed a court to exercise personal jurisdiction over nonresident defendants when there was some connection to a court whose territory gave rise to the dispute. This became known as specific jurisdiction.

 

 

The first long-arm statute was introduced in Illinois in 1955. Since then, every US state and the federal government have introduced a long-arm statute or long-arm clause. The extent of this jurisdiction varies considerably. It can be very broad, such as the California Code of Civil Procedure and the Federal Rules of Civil Procedure, both of which allow for jurisdiction to the limit allowed by the constitution.[17] Others, such as the New York Consolidated Laws, Civil Practice Law and Rules, are quite narrow and delineate specific situations where it would apply.[18] Some federal statutes, including the Exchange Act, contain their own rules for establishing specific jurisdiction through the use of a long-arm clause.[19]

 

When it comes to a federal court, the statutory basis for specific jurisdiction can either come from a federal or state long-arm statute or long-arm clause located in an individual statue.[20] First, a federal court will look to the relevant federal statute that gives rise to the legal issue to determine whether it explicitly allows for specific jurisdiction. If the federal statue does not specifically provide for jurisdiction over nonresidents, the forum state’s personal jurisdiction rules will apply.[21] As the Exchange Act contains a long-arm clause that specifically allows for “worldwide service of process and permits the exercise of personal jurisdiction to the limit of the Fifth Amendment,” civil litigation involving the FCPA is not governed by state long-arm statutes.[22]

 

 

   

 

4) “Minimum Contacts” and “Reasonableness”

 

The exercise of specific jurisdiction in the U.S. is subject to the due process protections found in the Fifth and Fourteenth Amendments that protect people from being “deprived of life, liberty or property without due process of law.”[23] The crucial question when it comes to specific jurisdiction is whether the defendant has “purposefully avail[ed] itself of the privilege of conducting activities within the forum…, thus invoking the benefits and protections of its laws, such that [the defendant] should reasonably anticipate being haled into court there.”[24]

 

As set forth by the Supreme Court in International Shoe v. Washington, the leading case on specific jurisdiction, and its progeny, due process requires that if a defendant is “not present within the territory of the forum, he [must] have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.”[25] The test to determine this consists of two components: the “minimum contacts analysis” and “reasonableness inquiry.”

 

i)  Minimum Contacts Analysis

The minimum contacts analysis assesses the extent of a defendant’s links with the jurisdiction in which the case is filed. To establish the minimum contacts necessary to satisfy due process, the plaintiff must show that his “claim arises out of, or relates to, the defendant’s contacts with the forum . . . [and that] the defendant purposefully availed itself of the privilege of doing business in the forum and could foresee being haled into court there.”[26] Alternatively, if a statute, such as the FCPA, relies on a long-arm clause[27] that specifically allows for global jurisdiction, the court will conduct its minimum contact analysis regarding overall contact with the United States as a whole.[28] If a federal court is relying on a state long-arm statute for extraterritorial jurisdiction, it would be looking for contact with that specific state.

 

While it is well-established in U.S. jurisprudence that a court may exercise personal jurisdiction over a nonresident defendant who causes an effect in the forum by an act committed elsewhere, courts have recognized that “this is a principle that must be applied with caution, particularly in an international context.”[29] Defendants must have “followed a course of conduct directed at . . . the jurisdiction of a given sovereign, so that the sovereign has the power to subject the defendant to judgment concerning that conduct.”[30] The effects in the United States must “occur as a direct and foreseeable result of the conduct outside the territory” and the defendant “must know, or have good reason to know, that his conduct will have effects in the [forum] seeking to assert jurisdiction over him.”[31]

 

In SEC v. Straub (2016),[32] the Securities and Exchange Commission (“SEC”) claimed that three executives of a Hungarian telecommunications company had violated the FCPA by bribing the Macedonian government. The SEC alleged that the defendants were able to conceal a bribery scheme by, among other things, maintaining inaccurate books and records and submitting false securities law certifications in connection with the company’s SEC filings. The Southern District Court of New York found that specific jurisdiction existed because the defendants purposefully availed themselves of a U.S. securities exchange to conceal their alleged wrongdoing. Specifically, in the course of preparing the SEC filings, the company’s CEO had provided signed management misrepresentation letters to an outside auditor in connection with its audit of the company’s financial disclosures, which were then filed with the SEC. Neither party disputed that the defendants had “followed a course of conduct directed at the society or economy existing within the jurisdiction of the United States, so that the United States has the power to subject Defendants to judgment concerning that conduct.”[33]

 

ii)Reasonableness Inquiry

If a court determines that a defendant has sufficient minimum contacts within the forum, specific jurisdiction will be established unless “a compelling case that the presence of some other considerations would render jurisdiction unreasonable.”[34] Factors at this second step include “(1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; and (3) the plaintiff’s interest in obtaining convenient and effective relief.”[35] In civil litigation with an international element, the focus of the reasonableness inquiry tends to focus on the burden of nonresident defendants to litigate in the United States.

 

In SEC v. Sharef (2013),[36] the Southern District Court of New York dismissed an FCPA case for the lack of specific jurisdiction as the case would be unreasonable. . The defendant, a seventy-four-year-old former executive of a German manufacturing company’s Argentine subsidiary, allegedly encouraged others to pay bribes to the Argentine government and falsify financial statements but had not himself authorized or paid bribes nor had any involvement in the falsification of the company’s financial statements. The court held the defendant’s contacts with the United States were “far too attenuated” to satisfy due process, and even if they were sufficient, haling the defendant into a U.S. court would have been “unreasonable” given his “lack of geographic ties to the United States, his age, his poor proficiency in English, and the forum’s diminished interest in adjudicating the matter.”[37]

 

Conclusion

In summary, specific jurisdiction is a narrow concept applying to a precise aspect of American civil procedure law – the exercise of extraterritorial adjudicative jurisdiction. We feel that its colloquial usage can make it a confusing term for more casual observers of U.S. law. Embracing the more precise language of U.S. jurisprudence, here and in general, would enable Chinese legal observers to have more informed discussions about the nature and extent of U.S. law and how it applies to China.

 

注:

 
 

[1] 比如:2018年10月22日,《新京报》快讯称,全国人大常委会二审国际刑事司法协助法草案,对比一审稿,二审稿制定了有关“抵制外国‘长臂管辖’”条款,显然,作者认为“长臂管辖”包括美国对刑事案件的管辖权。再比如:2017年8月23日,当外交部发言人华春莹被问及对美国财政部宣布新一轮针对中国和俄罗斯的实体制裁有何看法时,她指出,反对任何其他国家根据其自己的国内法对中方实体或个人实施“长臂管辖”,显然,华女士认为长臂管辖包括美国行政机关对外国实体的处罚。

 

[2] Specific jurisdiction was coined in a 1966 (see von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harvard Law Review 1121, 1144–1163 (1996) and later adopted by the US Supreme Court, see Daimler AG v. Bauman, 571 U.S. 117, 127, 134 S. Ct. 746, 754, 187 L. Ed. 2d 624 (2014). This is also sometimes referred to as “case linked” jurisdiction. See Bristol-Myers Squibb Co. v. Superior Court, 582 U. S. ____, 4 (2017) (Sotomayor, J., dissenting).

 

[3] 美国证券交易委员会就《反海外腐败法》项下提出的指控也适用民事诉讼规则。

 

[4] 15 U.S.C. §§ 78dd-1 to 3 The anti-bribery provisions prohibit payments that are made with “corrupt intent” to obtain or retain business and are made to “foreign officials” operating in their “official capacity.” The FCPA applies to “domestic concerns” (real and legal US persons); US “issuers” (US and foreign public companies listed on American stock exchanges or that are required to file reports with the Securities and Exchange Commission (SEC)); and foreign individuals and businesses commit FCPA prohibited behavior, fully or in part, within US territory–“territorial jurisdiction.” The false or inaccurate accounting provisions are narrower, only applying to US “issuers.”

 

[5] 15 U.S.C. § 78m.

 

[6] Blakesley, Christopher L., “United States Jurisdiction over Extraterritorial Crime,” J. Crim. L. & Criminology 73, 1109 (1982).

 

[7] Ibid.

 

[8] 例如:域外管辖可以指纽约州法院对一名加利福尼亚居民行使管辖权,也可以指美国证券交易委员会对中国某公司执行行政处罚,还可以指美国国会立法要求对来自中国的投资加强审查。

 

[9] F.T.C. v. Compagnie De Saint-Gobain-Pont-a-Mousson, 636 F.2d 1300, 1316 (D.C. Cir. 1980).

 

[10] Hartford Fire Ins. Co. v. California, 509 US 764, 813 (1993) (Scalia, J., dissenting).

 

[11] Colangelo, 1310 citing Hartford Fire Ins. Co. v. California, 509 US 764, 813 (1993) (Scalia, J., dissenting).

 

[12] Ibid.

 

[13] 15 U.S.C. § 78aa(b)(2) (2010).

 

[14] Colangelo, 1310.

 

[15] Although this may sound like prescriptive justice, US courts treats this as a form of enforcement jurisdiction, see F.T.C. v. Compagnie De Saint-Gobain-Pont-a-Mousson 493 F. Supp. 286 (D.D.C. 1980)

 

[16] Wachovia Bank v. Schmidt, 546 U.S. 303, 316 (2006).

 

[17] California Code of Civil Procedure § 410.10 (2003) and Federal Rules of Civil Procedure §4(k), see Long-Arm Statutes: A Fifty-State Survey for a full list of the different rules and leading cases http://euro.ecom.cmu.edu/program/law/08-732/Jurisdiction/LongArmSurvey.pdf.

 

[18] New York Consolidated Laws, Civil Practice Law and Rules § 302 (2003).

 

[19] 15 U.S.C. § 78aa(b)(2)(2010)“The district courts of the United States . . . shall have jurisdiction of an action . . . alleging a violation of the antifraud provisions of this chapter involving–(2) conduct occurring outside the United States that has a foreseeable substantial effect within the United States.”

 

[20] Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 128 (2d Cir. 2013).

 

[21] Ibid.

 

[22] Alki Partners, L.P. v. Vatas Holding GmbH, 769 F. Supp. 2d 478, 487–88 (S.D.N.Y. 2011).

 

[23] The Fifth Amendment contains the Due Process Clause which is applicable to the federal government. The Fourteenth Amendment applies the Due Process Clause to states.

 

[24] Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474–475 (1985)).

 

[25] 326 U.S. 310, 316 (1945).

 

[26] Metro Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567-68 (2d Cir. 1996).

 

[27] In this case, found in the Exchange Act.

 

[28] Alki Partners, 769 F. Supp. 2d 478-88.

 

[29] Leasco Data Processing Equip. Corp. v. Maxwell, 468 F.2d 1326, 1341 (2d Cir. 1972).

 

[30] J. McIntyre Machinery, Ltd. v. Nicastro, 131 S.Ct. 2780, 2789 (2011).

 

[31] Leasco, 468 F.2d at 1341.

 

[32] 921 F. Supp. 2d 244, 249 (S.D.N.Y. 2013).

 

[33] Ibid. at 254.

 

[34] Burger King, 471 U.S. at 477.

 

[35] Metro. Life, 84 F.3d at 568.

 

[36] 924 F. Supp. 2d 539, 540 (S.D.N.Y. 2013).

 

[37] Ibid. at 548.

 
 

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