On Wed, 21 Jan 2009 02:14:37 -0800
Steve Langasek <vorlon@debian.org> wrote:
No, he's saying that if you *commit a tort against someone located in
Utah*, you are subject to Utah state law. If you've committed a tort
against someone located in Utah, it is absolutely not true that you
have no connections with Utah.
The question of how *much* of a connection you must have to a state
in order to be subject to their law is a fuzzy one that does get
debated by courts.
>> We think it if the treaties between the nations allow for it. I
>> know it has happened in the past, I really can't speak with any
>> authority as to how often that happens and what sorts of law it
>> covers. But in the world of torts (which is what we are talking
>> about), I wouldn't be at all surprise to learn that I can bring a
>> tort suit against a foreign national in their own jurisdiction but
>> under *my* law. Understand the very important distinction between
>> a criminal case and a civil case, such as torts. Different
>> concepts, different policy objectives, different enforcement.
> As I understand it, if it is legal in Britain then you cannot touch
> me. End of story. Unless there exists a contract between you and me
> that our dealings are covered by US law, then as a British National
> resident in Britain, then any claim you make against me must be
> under English law.
Even if this is nominally true under British law, there is certainly
no reason for this to be the accepted norm under international law,
and therefore not grounds for dismissal of a case brought against you
in a US court. Just because you think you can *get away with*
committing torts against US citizens doesn't mean the tort does not
occur. Jurisdiction and enforceability are two different questions.
For comparison with other European countries: it's been discussed on
this list in the past (in connection with choice of venue clauses)
that French law guarantees its citizens the right to defend
themselves in their home court - but it does not say that the claim
has to be brought under French law.
This thread gets into two separate doctrinal areas that even
specialist lawyers can regard as arcane for edge cases: personal
jurisdiction and choice of law. I read some postings on this list out
of personal interest, but I have little to contribute to most of the
discussion. I have done work on these issues, however, so maybe I can
add some clarity, even if it wanders further off-topic from the
original inquiry.
When a court concludes that it has personal jurisdiction over a
defendant, it means this court, for this defendant, for this claim, has
proper authority to deliver a judgment that may be enforced against the
defendant. For non-criminal cases, the court's analysis generally will
focus on the defendant's "contacts" with the residents and territory
of the government of which the court is a part.
Two variations of a simple hypothetical fact pattern may illustrate
this. A New York resident is injured by a product manufactured and sold
by a German company in Germany and wants to sue that company in a New
York court for negligence in the manufacturing process. In variation 1,
the German company gets most of its revenue from export sales and the
New York resident bought the product in New York from a store
authorized by the German company to sell its products. In variation 2,
the German company is small and has no export sales; the New York
resident bought the product in Germany while on a visit; and the injury
occurred in Germany during that visit. The New York court is more
likely to find that it has personal jurisdiction over the German
company in variation 1 than in variation 2. (Even though, in both
variations, the claimed negligent manufacture took place in Germany.)
Once a court decides that it has personal jurisdiction and can hear this
case against this defendant, the court must determine what rules should
apply. This is governed by the doctrines of choice of law (or sometimes
called conflicts of law). If the German manufacturer did everything
right under German law, but New York law would require something more,
which standard should be used by the New York court? Or, in a different
type of case, if Microsoft is entitled under United States law to
incorporate a browser into its operating system, is the EU required to
follow that rule because the operating system and browser are
(hypothetically) created in the United States? In the libel example,
should the UK court apply its own strict rules or the much more liberal
standard of United States libel law to the New York author? If a French
citizen asks a United States court to find that a United States citizen
violated a French copyright in France, should French law apply both to
whether a violation occurred and to the amount of damages?