미국법상 외국기업에 대한 인적 관할에 대한 검토

Under the U.S. law, in order to satisfy personal jurisdiction, a court should have either general jurisdiction or specific jurisdiction over a defendant. To determine whether a state or federal court has personal jurisdiction over a defendant, it needs to analyze two prongs: (1) the state law, especially its long-arm statutes, should authorize its courts to adjudicate against a non-resident party, and (2) such law must be consistent with the Due Process Clause of the 14th and 5th Amendments of the U.S. Constitution. Accordingly, if there is no such law or the law is in violation of the Due Process Clause, the court’s adjudicative power over a defendant cannot be established. Since the U.S. Supreme Court in International Shoe held that a state could assert in personam jurisdiction over a defendant when the defendant had ‘minimum contacts’ with the forum state and distinguished between general and specific jurisdiction, the Court has specified when such ‘minimum contacts’ exist and how to determine the existence of general and specific jurisdiction. In 2014, the Court addressed whether a court may exercise general jurisdiction, in Daimler, or specific jurisdiction, in Walden, over a non-resident defendant. The Court in Daimler held that even if its subsidiary had continuous and systematic contacts with the State of California, in or of itself, the state court may not assert general jurisdiction over the defendant, a German car manufacturer, unless the corporation’s affiliations with the state are so constant and pervasive as to render it essentially at home in the forum state. In Walden, also, the Court emphasized that the ‘minimum contacts’ should be based on the non-resident defendant’s contact with the forum state itself, not with a victim or a plaintiff who resides there. The Court ruled that as no part of the dependant’s course of conduct occurred in the forum state, specific jurisdiction over the defendant could not be exercised. The Court’s above decisions would have a significantly restrictive effect on the American courts to adjudicate claims against foreign defendants unless the foreign defendant’s activities within the forum state are sufficient enough to be considered “at home” (general jurisdiction) or the cause of action arises out of or relates to the foreign corporations’ activities in the forum state (specific jurisdiction).