Towards the Fifth Restatement of U.S. Foreign Relations Law: The Future of Adjudicative Jurisdiction Under Public International Law

The Fourth Restatement of Foreign Relations Law concludes that adjudicative jurisdiction is not a concern of public international law. This Chapter surveys recent developments in international adjudication in courts around the world and considers whether they could lead the next Restatement to alter this position. Engaging in this thought experiment provides an opportunity to survey current cutting edge developments in courts’ use of power around the world and helps understand what is at stake in this debate. It raises questions about the foreign-relations implications of private international law and the overlap between public and private international law. These questions also implicate the influence of the Restatement itself. In the end, I must acknowledge a variation on the Observer Effect: The fact that the Fourth Restatement holds that adjudicative jurisdiction is not governed by public international law may itself affect the likelihood of future developments in perceptions of international law limits on adjudicative jurisdiction. This influence is particularly likely within the United States, but evolution in the view of international law limits is unlikely here in any event. The new frontier of expansions in adjudicative jurisdiction is most likely to be found outside of U.S. courts, and future objections to such jurisdiction may come from states, parties, and courts outside of the United States. The central claim of this Chapter is that change that will push the Restatement to alter its position is more likely to follow from breaches of commonly understood limits on such jurisdiction than from courts abiding by those limits. While U.S. courts historically have been notorious offenders on this front, future breaches are most likely to come from courts outside the United States. There would be three steps that could affect such change: First, some courts would start asserting adjudicative jurisdiction more aggressively. Recent developments around the world suggest such aggressive assertions of jurisdiction are beginning to appear and more may be imminent. For example, global forum shopping has led courts to find creative ways to exert adjudicative jurisdiction over foreign parties in the context of international human rights cases and global securities settlements. In addition, new international commercial courts around the world may extend their jurisdiction even to parties who have not consented, for example in the context of joining non-contracting third parties to a contract dispute between two consenting parties. Alone, such jurisdictional power grabs would be insufficient to change public international law. The Reporters cite a lack of both opinio juris (the belief that public international law governs adjudicative jurisdiction) and state practice (states’ restraining their exercise of adjudicative jurisdiction to obey that public international law). Thus, the second step would be other countries or foreign nationals objecting to expansive exertions of adjudicatory power because they violate international law. Third, something must be done about it. Foreign courts would have to refuse to enforce judgments that exceeded international law limits on adjudicative jurisdiction for that reason. As even better evidence, the rendering court might circumscribe its jurisdiction in response to those objections. The Chapter first briefly describes the debate that the Restatement has sparked regarding the status of adjudicative jurisdiction under public international law. Second, it considers current developments in adjudicative jurisdiction. Third, it discusses how those developments could translate into state practice and expressions of opinio juris that might affect the international law status of adjudicative jurisdiction. A brief fourth part raises questions for the future and concludes.