The question explored in this Note is whether, under the direct effect clause of the Foreign Sovereign Immunities Act commercial activities exception, a foreign sovereign must have minimum contacts with the United States in order for a U.S. court to assert personal jurisdiction over the entity. Examining personal jurisdiction over foreign states under the direct effect clause requires exploring the interaction between constitutional law and principles of international law. The minimum contacts analysis highlights the tension between applying constitutional due process protection to a foreign state, while simultaneously asserting jurisdiction over its commercial activities. Denying jurisdiction over a foreign sovereign under the Due Process Clause may defeat the intent of the FSIA’s immunity exceptions created to provide relief for U.S. plaintiffs injured by foreign states. Deciding questions of personal jurisdiction over foreign entities requires identifying the goals of foreign sovereign immunity, why the FSIA established exceptions to that immunity, and what constitutional protections the United States should provide to foreign states.
Jacqueline M. Fitch, If the Shoe Fits: Rethinking Minimum Contacts and the FSIA Commercial Activity Exception, 75 Wash. & Lee L. Rev. Online 123 (2019), https://scholarlycommons.law.wlu.edu/wlulr-online/vol75/iss2/3