Lloyd's Maritime and Commercial Law Quarterly
Jurisdiction over foreign corporations: a survey
Robert Drury*
This article presents the results of a survey of a range of jurisdictions into the circumstances in which their courts take jurisdiction over a foreign corporation. It seeks to ascertain whether there is any meaningful pattern to the approaches taken by these courts to the issues of general and specific jurisdiction by looking at the areas of branches and agents, the presence of assets and contracts. The conclusion is that the most useful analytical framework, and the one which yields the most meaningful pattern, is that which uses the three categories of the Common Law, the Civil Law and the law of the United States
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INTRODUCTION
When a commercial corporation decides to forego the comparative security of operating purely in its domestic market, it has many issues to consider. One of these may well be the extent of its exposure to the jurisdiction of foreign courts. It may wish to begin merely by exporting its products, believing that it will, in this way, minimize the contacts with foreign countries and insulate itself from the possibilities of being brought before a foreign court to answer for any defaults. Can it really be comfortable in this belief? Are there circumstances in which the making of a contract with a foreign purchaser, the circulation of its products or services in foreign climes or even the mere ownership of assets in the foreign country might expose it to the jurisdiction of a foreign court? If it goes further and appoints an agent of some kind in the foreign country, it might well expect that some issues arising from this relationship could be litigated before a foreign tribunal, but would be very surprised to discover that in some cases such a tribunal could actually take jurisdiction over a wide range of that corporation’s affairs that are unrelated to the agency. If it establishes a branch office abroad, it would naturally contemplate that matters connected with the operations of the branch in a foreign country would or could be litigated before the courts of that country. However, as in the case of agents, it might be very worried to learn that matters which it regarded as of solely domestic concern, such as the procedure for appointing its management organs or its dividend distribution policy, could, as a consequence, suddenly become the subject-matter of an action before a foreign court; yet such could be the case.
Of course, a well-drawn clause emblazoned over all of its contractual documents giving exclusive competence to the courts of the corporation’s “home” country might well