Farhat Aya

Competent jurisdiction in tort

Introduction:

In a growing worldwide and interlinked world, the settlement of tort claims involving cross-border
features has become a top priority within the United States judicial system. Competent jurisdiction,
especially during a conflict of law, is a critical subject that needs careful study and examination. In
law, competence and jurisdiction refer to a court's authority to deal with certain issues. The legal
"ability" of a court to exercise jurisdiction over a person or a "thing" (property) that is the subject of a
claim is referred to as competence while jurisdiction is the power that a competent court has to hear
and decide a lawsuit in court. It may also be described as the authority granted to a court (making it
competent) to hear and decide cases and causes1. In the other hand, a tort is an act or omission that
gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.
In the context of torts, "injury" describes the invasion of any legal right, whereas "harm" describes a
loss in fact that an individual suffers2. In a nutshell, to get the clear picture of the whole concept, it s
about determining the right legal authority or court responsible for ruling on disputes associated with
claimed illegal actions in tort cases requires considering a range of issues, including conflict of law
considerations.

In a disagreement, legal certainty is critical for guaranteeing a predictable and orderly legal procedure.
It eliminates ambiguity and guarantees justice. Determining the competent jurisdiction improves the
recognition and enforcement of decisions across jurisdictions, eliminating duplication and disputes. It
also improves predictability and efficiency by allowing parties to know where to file or defend their
claims. This contributes to the maintenance of healthy international relations by respecting different
countries' sovereignty and legal systems. Legal convergence promotes nations to create comparable
norms and principles in problem areas, resulting in increased legal convergence and harmonization
and making cross-border legal issues more straightforward to resolve3. Especially In tort cases, finding
competent jurisdiction is important to apply the right laws, assure justice, and simplify legal
procedures.

The background of identifying competent jurisdiction in circumstances of conflict of laws in the

United States may be traced back to English common law concepts adopted by American
courts:Significant advancements include the First Judiciary Act of 1789 and the Erie doctrine in the 20
th century, which formed the function of federal courts in handling legal disputes. In addition, the
American Law Institute's (ALI) Restatements of the Law have played a substantial historical role in
defining the determination of competent jurisdiction in matters of conflict of law in the United States.
These Restatements serve as official secondary sources that aid in the clarification and harmonization
of legal concepts, mostly those concerning choice of law and jurisdictional difficulties. The expansion
of the jurisdiction of American courts has occurred, in large part, in tort cases. A plurality of the
United States Supreme Court jurisdictional cases since International Shoe Co. v.Washingtonn has
involved a tort of some kind. In retrospect, this is an unsurprising development. Probably no area of
substantive law has seen as much change over the last 50 years as has the law of torts. The double

1
www.britannica.com
2
www.law.cornell.com
3
www.britannica.com
Farhat Aya

effect of expanding boundaries of tort liability and in personam jurisdiction was bound to produce
factual and legal patterns unknown in any previous era4. To further understand this topic, we may pose
the following question:

How to determine competent jurisdiction in U.S. tort cases with conflicts of laws in the light of
potential hurdles?

I/ Determining competent jurisdiction in tort cases

Despite their distinctive nature, tort jurisdictional issues are analytically the same as others. For a court
to have jurisdiction, it must have statute, rule, or common law authority to hear the matter, and the
assertion of jurisdiction must not violate the Constitution. The first stage is often the interpretation of a
state's long-arm legislation. On other occasions, tort cases have created complex legislative
interpretation issues, compelling state courts to construe their long-arm legislation liberally. The
second phase involves determining the Supreme Court's constitutional bounds. Of course, this
generally entails employing the "minimum contacts" test5. As a result, our general explanation of the
minimum contacts test is particularly significant for the examination of tort problems regarding the
nature of the tort, in addition to other traditional factors. In this context, the first section of our
dissertation will explore the determination based on minimum contacts (A), followed by the
determination based on traditional factors (B).

A) Based on the minimum contacts

First of all, minimum contacts are a nonresident civil defendant’s connections with the forum state
(i.e., the state where the lawsuit is brought) that are sufficient for the forum state to assert personal
jurisdiction over that defendant which is about making sure that the court has the right to decide cases
involving certain people . Lack of minimum contacts violates the nonresident defendant’s
constitutional right to due process and “offends traditional notions of fair play and substantial justice”
(International Shoe Co. v. Washington, (1945))’’. Defendants’ minimum contacts can take the form
of general jurisdiction or specific jurisdiction. Some examples of minimum contacts include
conducting business within the state, incorporating in the state, and visiting the state6.

The minimum contacts test in tort cases reveals itself differently from one tort to another, depending
on the nature of each tort. Torts are classified into three types: personal injuries, property injuries,
and reputation injury.

Beginning with personal injury lawsuits, we get on to product liability cases. The application of the
minimum contact test is based on the stream of commerce test, this test determines whether a
defendant's activities show a purposeful desire to serve a specific market, and it is frequently
employed in instances involving foreign manufacturers or out-of-state firms, balancing plaintiffs' legal
remedies with defendants' due process rights. We can observe different perspectives taken by the
court: In Gray V.American radiator and standard and corp, it supported the application of the "stream
of commerce" theory to establish jurisdiction while in Anahi metal industry co V. superior court, the
Supreme Court was divided on the application of the test, resulting in a fragmented decision. So, the

4
DCOLES(E.F),HAY(P),BORCHERS(P.J),SYMEONIDES(S.G),Conflict of laws,West Group,Third
Edition,p354
5
DCOLES(E.F),HAY(P),BORCHERS(P.J),SYMEONIDES(S.G),Conflict of laws,West Group,third edition,354
6
www.law.cornell.com
Farhat Aya

interpretation and execution of the "stream of commerce" criteria varies among countries and
throughout time, and it is frequently a source of contention and litigation7.

For the intentional torts and negligence, the concept of purposeful availment is used to determine
personal jurisdiction in both torts, but the specific circumstances and actions that constitute purposeful
availment can vary depending on the nature of the case and the legal principles involved. Purposeful
availment is an intentional act by a party directed toward the forum state by which the party takes
advantage of the benefits and privileges of the laws of the state, which justifies the exercise of personal
jurisdiction by the forum state's courts over that party, this requirement is satisfied if the defendant "has
taken deliberate action" toward the forum state so is not required that a defendant be physically present
or have physical contacts with the forum, so long as his efforts are "purposefully directed" toward
forum residents. In intentional tort cases, purposeful availment often refers to the defendant's
deliberate activities that resulted in harm or injury within a certain jurisdiction. Assume, for example,
that a defendant in a certain state purposely defames or commits an intentional tort against a plaintiff.
In that situation, the conduct might be interpreted as a planned availment, justifying the court's
jurisdiction in that state. In negligence cases, however, deliberate availment frequently focuses on the
defendant's careless behavior or violation of a duty of care that caused injury inside a jurisdiction. The
defendant's conduct or omissions that produced the harm are considered deliberate availment, and the
court's jurisdiction in that state is established8.

Following that, there are property injuries that include both personal and real property. Firstly we
need to understand the meaning of each type of them: personal property is any movable thing or
intangible item of value that is capable of being owned by a person such as vehicles, electronics,
furniture, and other tangible movable goods. Whereas, real property involves immovable assets such
as land and the structures linked to it, such as buildings and homes. The determination of competent
jurisdiction in personal property and real property matters has similarities but also significant
variations. In all sorts of lawsuits, jurisdiction is frequently determined by the location of the property,
the home of the persons concerned, or the location of the cause of action. For instance, in deciding
jurisdiction over personal property, the location of the harm or the defendant's house is critical, as
demonstrated in MacPherson V. Buick Motor Co (1916). However, in real property issues, jurisdiction
is essentially based on the location of the property itself, also known as Rem jurisdiction. The location
of the contested land (Oregon), as stated in Pennoyer v. Neff (1877), was a significant component in
establishing jurisdiction, underlining the essential importance of property location in real property
disputes9.

Finally, for the reputation injury, in defining personal jurisdiction, the idea of "minimum contacts" is
as important as the other categories of torts. If the defendant's conduct, including the publication of
defamatory information, demonstrates a sufficient link or deliberate availment of jurisdiction, the court
may exercise jurisdiction over the defendant. So, jurisdiction is determined by the location of the
harm, the residence of the parties, and the publication and circulation of defamatory statements. The
plaintiff can file a lawsuit in the jurisdiction where they suffered the harm, such as if defamatory

7
DCOLES(E.F),HAY(P),BORCHERS(P.J),SYMEONIDES(S.G),Conflict of laws,West Group,Third Edition,
pages 365 and 357
8
DCOLES(E.F),HAY(P),BORCHERS(P.J),SYMEONIDES(S.G),Conflict of laws,West Group,Third Edition,
pages 360,361 and 363
9
DCOLES(E.F),HAY(P),BORCHERS(P.J),SYMEONIDES(S.G),Conflict of laws,West Group,Third
Edition,pages 366 and 367
Farhat Aya

statements were published and disseminated in a specific state. The residence of both the plaintiff and
defendant can also influence jurisdiction, with the plaintiff often choosing to file in their state of
residence. In libel and slander cases, the jurisdiction in which the defamatory words were written or
circulated is frequently an important factor to examine10. In New York Times Co. v. Sullivan, the case
that has had a lasting impact on First Amendment protections, there was jurisdictional concerns since
it included a lawsuit brought in Alabama state court by L.B. Sullivan against The New York Times, a
New York-based newspaper. The assessment of whether Alabama had jurisdiction over The New
York Times posed fundamental problems concerning the boundaries of jurisdiction, particularly when
the defendant is based in another state. The Supreme Court's ruling made it clear that the location of
the injury (in this case, Alabama) was insufficient to establish jurisdiction in defamation suits.

B) Based on traditional factors

In the context of determining competent jurisdiction in tort litigation, the traditional connecting factors
of locus delicti, domicile, residence, and nationality represent the personal connections or affiliations
of the parties involved.

First of all, Locus delicti is a Latin phrase that translates to "the place where a wrongful or injurious
act occurred."It refers to the geographical location of the tortuous act or improper behavior that caused
harm or injury to a person or property. The significance of this idea comes from its important role in
establishing which court has jurisdiction over a specific tort case. Each state in the United States has
its court system, and a court's jurisdiction is normally confined to events that take place inside its
geographical bounds. As a result, the court in the country where the tort happened is frequently
regarded as the correct venue for the lawsuit. This is founded on the legal idea that a court has
jurisdiction over issues that occur within its jurisdiction. In proceedings in personam, jurisdiction over
the person of the defendant is chiefly based on the territorial theory11. The jurisdiction of the court
over the person of the defendant may be obtained by service of process upon the defendant within the
territory of the state in whose court the suit is brought. If the defendant is not within the territory at the
time of service the court does not obtain jurisdiction. An illustration of this is Buchanan v. Rucker,
decided in the King's Bench in 1808.

Secondly, domicile and residence are essential factors when deciding competent jurisdiction in tort
lawsuits involving conflicts of laws in the United States because it indicates a person's permanent legal
home, domicile is frequently used as a fundamental foundation for jurisdiction, giving a strong link to
a particular jurisdiction whereas residence might sometimes be crucial, especially when the tort arises
in the defendant's home state12. As an example, in Calder v. Jones (1984), in which the defendant, a
Florida-based National Enquirer journalist, was sued in California for defamation. The Supreme Court
ruled that California had jurisdiction because the tort was intentionally intended for a California
citizen, emphasizing the role of residence in establishing jurisdiction when a tort is directed at a certain
state.

While nationality is not necessarily a major consideration, it can determine whether a court can
exercise jurisdiction over a foreign defendant. In the context of nationality, it’s important to mention
Alien Tort Claims Act (ATCA), also known as Alien Tort Statute, U.S. law, originally a provision of
10
DCOLES(E.F),HAY(P),BORCHERS(P.J),SYMEONIDES(S.G),Conflict of laws,West Group,Third
Edition,pages 369 and 371
11
www.lsd.law.com
12
www.cambridge.com
Farhat Aya

the Judiciary Act of 1789,that grants to U.S. federal courts original jurisdiction over any civil action
brought by an alien (a foreign national) for a tort in violation of international law or a U.S. treaty. (A
tort is any wrongful act not involving a breach of contract for which a civil suit can be brought.)
Beginning in the 1980s, the Alien Tort Claims Act (ATCA) was used as the basis of suits against
individuals for violations of international human rights law; from the mid-1990s it was also used
against corporations for complicity in human rights violations and for environmental crimes13.

In conclusion, the minimum contacts test determines whether the defendant has enough contacts with
the forum state to ensure that the assertion of jurisdiction is fair and reasonable. It has become the
principal tool for establishing jurisdiction in tort cases, putting the defendant's dealings with the forum
state ahead of their traits. While domicile, residence, and nationality can help inform the minimal
contacts analysis, they are less relevant on their own because jurisdiction is now based on whether a
defendant's activities have developed a meaningful relationship with the forum state. Also, the lack of
free will, as shown in contract cases when parties freely engage in agreements, makes determining
competent jurisdiction in tort cases a personalized process. Contract law gives parties the freedom to
pick the prevailing law and jurisdiction through commercial agreements. In tort disputes, however, the
plaintiff is frequently the person injured without any previous agreement.

II/ Challenges for determining competent jurisdiction in tort cases

Competent jurisdiction in tort cases might face several obstacles, including both discretionary and
strategic factors. Discretionary challenges involve the use of doctrine such as forum non conveniens.
Furthermore, courts may struggle to strike a careful balance between legal principles and societal
norms when considering public policy in jurisdictional judgments. On the strategic front, forum
shopping remains a significant concern, with removal and remand judgments contributing to the
complication. Therefore, initially, we'll discuss discretionary considerations (A), and then move to
strategic considerations (B).

A) Discretionary considerations

Discretion is the power of a judge, public official or private party to act according to the dictates of
their own judgment and conscience within general legal principles. In criminal and tort law, discretion
is the ability to judge between right and wrong, which is sufficient to hold one liable for one's own
conduct. For example, a judge may have discretion over the amount of a fine; a prosecutor may have
discretion when prosecuting a criminal case. Unfortunately, it can be abused when the judicial action
is arbitrary, fanciful, or unreasonable14.

First of all, forum non conveniens as a discretionary factor refers to a court's discretionary ability to
deny exercising jurisdiction if another court, or forum, might hear a case more conveniently.
Dismissing a lawsuit based on forum non conveniens is not a res judicata bar and so does not prevent a
plaintiff from submitting their case in a more appropriate location. This notion may be raised by either
the defendant or the court on its initiative. Even if a plaintiff brings a case in an inconvenient forum, a
court will not dismiss the case for forum non conveniens unless there is another forum that might hear
the case and perhaps collect damages. Furthermore, courts are unlikely to grant a forum non
conveniens judgment when the legal system of the alternative forum is extremely inadequate. For

13
www.britannica.com
14
www.law.cornell.com
Farhat Aya

example, an American court would not grant a forum non conveniens dismissal where the alternative
forum was Cuba15.

Determining competent jurisdiction in tort matters involving a conflict of laws may be a complicated
and challenging task, made more difficult by the discretionary character of doctrine. It permits courts
to dismiss cases when they consider a different forum would be more suitable, although the
discretionary nature of this decision can lead to confusion. As numerous prospective forums may
compete, parties may find themselves in disagreement about which forum genuinely serves their
interests best. The court's duty entails a delicate balancing act, evaluating the convenience of the
parties, the location of key witnesses, and the interests of justice, where this subjectivity can lead to
conflicts and extended legal battles. Moreover, when a case is dismissed for forum non conveniens, it
might cause delays when the action is submitted in another jurisdiction, which is particularly
detrimental in tort cases where quick resolution is typically critical. For instance, in Reyno v. Piper
Aircraft Co. (1981) where In the Piper Aircraft case, a tragic plane accident occurred in Scotland, and
the victims' families, who were not US citizens, brought a product liability claim in California against
Piper Aircraft Company, a Pennsylvania-based aircraft manufacturer. Because of Piper's sales and
distribution activities in the state, the plaintiffs asserted that California was a proper forum. Piper
Aircraft requested dismissal of the complaint under the forum non conveniens concept, claiming that
the issue should be heard in Scotland, where the accident happened. They contended that the essential
witnesses, evidence, and events were all in Scotland and that the Scottish court system was better
prepared to deal with the matter. By the end, the Court concluded that the Scottish forum was more
suitable for the tort case, leading to the change in competent jurisdiction16.

For the public interest consideration, it’s one of the most common exceptions/defenses used by States,
although there is not a uniform definition of public interest under international law provisions or
customary international law. Using the public interest as a defense or argument in defining competent
jurisdiction can be problematic since the idea of public interest is subjective and vague, it is difficult to
define and consistently execute. Furthermore, public interest might change over time, and its meaning
can differ between different parties, courts, or jurisdictions. Balancing the public interest against the
interests of the parties involved can be tough and what serves the public interest may not be in the best
interests of the litigants. Also, Different interpretations of public interest across courts might result in
incompatible rulings, especially in instances with international aspects, misleading the selection of the
proper jurisdiction even more. Disagreements among the parties are likewise common, given that
plaintiffs, defendants, and other parties may have different takes on what is genuinely a challenge17. In
Lauritzen v. Larsen, a Danish seaman named Erik Lauritzen was injured while working aboard a
Danish vessel in U.S. territorial waters. Lauritzen, a non-U.S. resident, filed a personal injury lawsuit
in a U.S. court against the vessel's owner, Peter Larsen, who was also a Danish citizen. Ultimately, the
U.S. Supreme Court held that the public policy of the United States supported the jurisdiction of the
U.S. court in this case, based on the interest in safeguarding the rights of seamen working within U.S.
territorial waters.

15
www.law.cornell.com
16
www.leidenlawblog.com
17
www.jusmundi.com
Farhat Aya

B) Strategic considerations

In this context, we will focus on the forum shopping and the removal (also known as remand). The
term "strategic" emphasizes the calculated and planned character of these considerations, underlining
how they are part of a wider legal strategy used by parties to affect the course and outcome of
litigation.

Forum shopping is process by which a plaintiff chooses among two or more courts that have the power
-- technically, the correct jurisdiction and venue -- to consider the plaintiff's case. This decision is
based on which court is likely to consider the case most favorably. In some instances, a case can
properly be filed in two or more federal district courts as well as in the trial courts of several states --
and this makes forum shopping a complicated business. It often involves weighing a number of
factors, including proximity to the court, the reputation of the judge in the particular legal area, the
likely type of available jurors, and subtle differences in governing law and procedure. In tort cases,
forum shopping refers to a range of strategies in which parties attempt to gain a legal advantage by
picking a certain jurisdiction or court. "Plaintiff-friendly forums," in which plaintiffs seek jurisdictions
recognized for acceptable legal standards or high-damage decisions to maximize the opportunity for
recovery, are examples of common forms of forum shopping18. In the case of Anderson v. Crestwood
(2009), the plaintiffs, who were victims of toxic contamination, filed their lawsuit in West Virginia, a
state known for having plaintiff-friendly laws and sympathetic juries in environmental tort cases. This
choice of forum was strategic, as it increased their chances of obtaining a more favorable verdict and
substantial damages.

In contrast, "defendant-friendly forums" are chosen to take advantage of jurisdictions with strict
liability rules or with a history of siding with defendants. In General Electric Co. v. Byrne (2004), the
defendant, General Electric, faced asbestos-related lawsuits in various states. The company sought to
have the cases heard in Mississippi, which was perceived as a defendant-friendly forum. The choice of
forum aimed to benefit the defendant by taking advantage of Mississippi's legal climate, including less
favorable rulings for plaintiffs19.
Also, to ease the litigation process, "convenience-based forum shopping" entails selecting a forum
near essential witnesses, evidence, or the plaintiff's location. This type of forum shopping can be
observed in In re Toyota Motor Corp. Unintended Acceleration Litigation, Toyota strategically chose
the Central District of California as the forum for consolidated product liability claims due to its
convenience. Toyota's U.S. headquarters and essential documents and witnesses were located there,
making it a convenient forum for the company, highlighting the convenience-based forum shopping
tactic20.
Finally, removal to federal court jurisdiction as a form of forum shopping is a process codified in Title
28 of the U.S. Code, sections 1441 through 1455. It allows a defendant charged in state court to apply
having their case removed to federal court in certain circumstances. Most commonly, the basis for
applying for removal is that the case involves a constitutional question, or the plaintiff and defendant
reside in different states and the total damages involved in the case total more than $75,000. While
removal is a valid procedural tool for defendants involving federal concerns or diversity of citizenship,

18
www.law.cornell.com
19
www.law.cornell.com
20
www.law.cornell.com
Farhat Aya

it can be abused. Defendants may seek removal strategically to take advantage of possibly more
favorable federal procedural rules and standards, which might compromise the case's fairness. If done
incorrectly, this strategy can lead to disagreements between parties, delays, and cases bouncing back
and forth between state and federal courts21. Meanwhile, in Foster v. Peddicord (1987), a car accident
involving residents of Missouri and Iowa led to a jurisdictional conflict. The plaintiff filed in a
Missouri state court, but the defendant sought removal to federal court based on diversity jurisdiction.
This resulted in back-and-forth disputes between state and federal courts over jurisdiction.
Summing up, determining competent jurisdiction in tort matters involving conflicts of law in the
United States is a multi-dimensional procedure that is dependent on the nature of the tort as well as a
variety of conventional elements. The significance of the form of the tort itself, reveals how different
sorts of torts, from product liability to intentional torts, are subject to shifted jurisdictional concerns,
frequently using the minimum contact test as a guiding concept. The obstacles included discretionary
concerns such as the delicate balancing act of forum non conveniens and the subjective and dynamic
character of public interest as a defense. Also, addressed the strategic concerns of forum shopping, in
which litigants tactically choose locations to their benefit, presenting shapes such as plaintiff-friendly,
defendant-friendly, and convenience-based forums. in addition to the complexity of removal to federal
court, which when abused may result in jurisdictional conflicts and back-and-forth legal fights. So,
competent jurisdiction in tort cases is a strategic and contentious task, requiring a delicate balance
between tort nature, conventional factors, and discretionary challenges to shape litigation direction.

21
www.law.cornell.com