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Washington Law Review

Abstract

The Fifth Amendment's Due Process Clause places limitations on courts' judicial power. Due process concerns arise when a forum exercises personal jurisdiction over a nonresident defendant for actions carried on outside the forum's territory. Those concerns are alleviated when the defendant has adequate "minimum contacts" with the forum. Although foreign states are presumed to be immune from the jurisdiction of U.S. courts, the Foreign Sovereign Immunities Act (FSIA) grants U.S. courts jurisdiction over foreign states under certain circumstances. Several FSIA exceptions to foreign state immunity extend to conduct that occurs outside of the U.S. Moreover, the jurisdictional nexus requirements associated with some of those exceptions do not necessarily satisfy due process requirements. Seemingly, the exercise of personal jurisdiction under the FSIA would have to be consistent with the requirements of due process embodied in the "minimum contacts" test. However, in contrast to corporations, foreign states, like U.S. states, are not "persons" within the meaning of the Due Process Clause and thus are not entitled to its protections. Nevertheless, because the FSIA's definition of "foreign state" is broad, some entities that fall within its scope will be entitled to constitutional treatment different from that of a foreign state. This Comment argues that some foreign state instrumentalities are in fact "persons" entitled to a constitutional personal jurisdiction defense. Accordingly, even when a court has jurisdiction under the FSIA, the court's exercise of personal jurisdiction over an instrumentality that is created as a separate juridical entity not extensively controlled by a foreign state must be consistent with the requirements of the Due Process Clause, provided that such separate treatment does not result in fraud or injustice.

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