Document Type

Article

Publication Title

New York University Journal of International Law and Politics

Volume

56

Publication Date

2024

Keywords

transnational litigation, civil procedure, litigation isolationism, personal jurisdiction, extraterritoriality, forum non conveniens, international comity, conflict of laws, private international law, transnational forum shopping

Abstract

In recent suits around the world against U.S. tech giants-e.g., litigation in Canada against Twitter (now X), in Kenya against Facebook, and in Europe against Google-plaintiffs urge foreign courts to adapt concepts like specific personal jurisdiction in flexible ways to allow litigation to proceed. In their defense, the U.S. companies are reusing the argument that similarly situated defendants successfully deployed in U.S. courts over the last few decades-that the cases are too foreign and do not belong in these courts. But these defendants have lost their home court advantage. They find themselves in courts with closer ties to the disputes at issue, and with stronger claims to both judicial jurisdiction and the authority to apply local substantive law. These companies then find themselves subject to liability-and potentially to remedies with worldwide effect. As specific jurisdiction concepts develop around the world and adjust to modern technological realities, the United States finds itself on the narrower and more old-fashioned end of the spectrum. These trends showcase the importance of comparative law in understanding and developing both U.S. and foreign law in the transnational dispute resolution system-themes that have informed Linda Silberman's scholarship for decades.

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