National Jurisdiction and Global Business Networks

On November 1, 2007, Professor Buxbaum delivered the ninth annual Snyder Lecture at the University of Cambridge in the Lauterpacht Centre for International Research.

It is a great honor for me to deliver the ninth Snyder Lecture. I have had the pleasure of attending many of the previous lectures delivered in Bloomington by members of the Cambridge faculty. I have also had the pleasure of hearing from those of my students who were given the opportunity to conduct research at the Lauterpacht Centre as Snyder Fellows. Our faculty is very grateful for Earl Snyder's generosity in supporting these intellectual exchanges between our schools, and I personally am very grateful for this opportunity to address you.

I will speak today about the exercise of jurisdiction by U.S. courts over global business networks. There are many ways in which the activities of U.S. courts intersect, and have long intersected, with international business activity, and so this topic calls up in part the procedural issues that are the bread and butter of international civil litigation. U.S. courts regularly assert personal jurisdiction over foreign corporations on the basis of their activities in the United States; they apply U.S. law to foreign conduct that is seen to harm certain interests within the United States; they enforce agreements that send cross-border contract disputes over into the transnational arbitration system.

But while some of those practices are mundane and, at least in theory, unobjectionable, others are problematic, and from time to time a specific case or group of cases will trigger a resurgence of attention to the role that U.S. courts play in the international arena. I would point to the Uranium litigation of the mid-1970s¹ and the spate of Alien Tort Claims Act cases that began in the mid- to late 1990s² as examples of this. In this first decade of the 21st century, litigation involving international competition and securities regulation has further fueled concern regarding that role. The current wave of cases suggests that the context of cross-border economic litigation has changed in several important ways. First, as a result of the continuing increase in crossborder business activity, there is simply much more pervasive involvement of domestic courts in the regulation of international business, even in the ordinary functions such as establishing personal jurisdiction over a foreign defendant or recognizing a foreign judgment. Second, with the recent proliferation of non-national courts—regional, ad-hoc, international, and also arbitral tribunals—there are new points of overlap and conflict between their roles and the role of domestic courts. Third, as I will argue, many of the economic injuries arising from business activity today are properly situated at the global level. By this I mean that they are not merely aggregations of individual localized harms, but are enabled by the increasing connectedness and interdependence that characterize our economic markets. Finally, both litigants and judges are increasingly conscious of the impact that local litigation has on global regulatory processes—and attentive to the advantages and disadvantages of using such litigation as an instrument of regulation.

What I would like to explore is whether these changes—particularly the increasingly global aspect of business networks and the harms they can cause—demand a shift in, or augmentation of, the paradigm that we use to think about and articulate the proper role of domestic courts. I will not argue that the global nature of business networks requires a correspondingly global view of jurisdiction in domestic courts. Rather, I will argue that it requires a more textured view of those courts' sphere of engagement. In order to establish a conceptual framework for the discussion, I borrow some concepts—in particular, the idea of scalar analysis—from the literature on political geography.³ That work provides a lens through which to consider "how the territorial extent of a legal entity does and should compare to the scale of the problems that it considers."⁴ Political geographers therefore deal in part with the rescaling of problems in the globalized world: addressing, for instance, ways in which "issues...