Serving process outside the country, taking evidence abroad, recognizing and enforcing a foreign judgment, defenses to recognition, suing a foreign state and the exceptions to its immunity, and forum objections.
The Foreign Sovereign Immunities Act makes a foreign state immune from the jurisdiction of federal and state courts except as the statute itself provides, and it is the sole basis for obtaining jurisdiction over a foreign state. A foreign state includes its political subdivisions and its agencies and instrumentalities. Exceptions cover waiver, commercial activity, certain expropriations, property in the United States, some domestic torts, and arbitration.
Forum non conveniens permits a court with jurisdiction to dismiss where an adequate alternative forum exists and the balance of private and public interest factors strongly favors trial there. An alternative forum is adequate where the defendant is amenable to process and the remedy is not so unsatisfactory as to be no remedy at all. A foreign plaintiff's choice of forum receives less deference than a domestic plaintiff's.
A foreign state loses immunity where the action is based upon commercial activity carried on in the United States, upon an act performed here in connection with commercial activity elsewhere, or upon an act outside the United States in connection with commercial activity elsewhere that causes a direct effect here. Commercial character is determined by the nature of the conduct rather than its purpose, following the market-player test in Weltover.
A foreign money judgment that has been recognized is enforceable in the same manner as a judgment of a sister state. Execution follows the procedure of the state where the enforcing court sits, and the creditor must domesticate the judgment separately in each state where assets are located. Post-judgment discovery is broad and reaches third parties. Currency conversion and interest are governed by the forum's own rules rather than by the rendering court's.
Under the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, a judicial authority in one party state sends a letter of request to a designated central authority in another, which has its own courts obtain the evidence. Execution follows the requested state's procedures unless a special method is asked for and is not incompatible. Article 23 lets a state refuse requests aimed at pre-trial discovery of documents, and most have.
Where the Service Convention does not govern, three routes remain. Service may be completed domestically on an agent, which takes the case out of the treaty entirely. A letter rogatory may be sent through diplomatic channels to a foreign court, which is reliable and slow. Or the court may order an alternative means under Federal Rule of Civil Procedure 4(f)(3), provided it is not prohibited by international agreement and satisfies due process.
Under the uniform recognition act, a court may not recognize a foreign money judgment where the rendering system does not provide impartial tribunals or procedures compatible with due process, or where the foreign court lacked personal or subject matter jurisdiction. A longer list of discretionary grounds covers notice, fraud, public policy, conflicting judgments, breach of a forum agreement, seriously inconvenient forum, and doubts about the integrity of the court.
The Supreme Court held in Aérospatiale that the Evidence Convention does not displace the Federal Rules for discovery sought from a party subject to the court's jurisdiction, and that no first-resort requirement applies. Where compliance would violate foreign law, courts apply a comity analysis weighing the importance and specificity of the request, where the material originated, the availability of alternatives, and the competing national interests.
The Convention on the Service Abroad of Judicial and Extrajudicial Documents applies whenever there is occasion to transmit a document abroad for service and the address of the person to be served is known. Each party designates a central authority that receives requests, serves the document by its own methods or by a requested method, and returns a certificate. The Convention also permits postal and consular channels unless the destination state has objected.
A court may exercise general jurisdiction over a defendant only where it is essentially at home in the forum, which for a corporation ordinarily means its place of incorporation and principal place of business. Specific jurisdiction requires purposeful availment of the forum, a claim arising out of or relating to those contacts, and an exercise of jurisdiction consistent with fair play and substantial justice. A federal long-arm rule fills a narrow gap.
The Uniform Foreign-Country Money Judgments Recognition Act, a uniform act adopted state by state, applies to a foreign-country judgment that grants or denies recovery of a sum of money and that is final, conclusive and enforceable under the law of the country that rendered it. Judgments for taxes, fines and penalties and most domestic relations judgments are excluded. A recognized judgment is conclusive to the same extent as a sister state's judgment.
