International litigation

International litigation, sometimes called transnational litigation, is the practice of litigation in connection with disputes among businesses or individuals residing or based in different countries.

The main difference between international litigation and domestic litigation is that, in the former, certain issues are more likely to be of significance — such as personal jurisdiction, service of process, evidence from abroad, and enforcement of judgments.

Although there are differences among the jurisdictional statutes of many American states, they all are subject to the due process requirements imposed by the Constitution of the United States. As a result, most American lawyers who are familiar with general principles of jurisdiction in one or more states of the US are able to guide their clients through jurisdictional issues in connection with disputes among litigants from different states.

The situation is different with respect to jurisdictional principles in the international context. The first difference concerns long-arm jurisdiction, which is the statutory grant of jurisdiction to local courts over out-of-state defendants. A long-arm statute authorizes a court in a state to exercise jurisdiction over an out-of-state defendant. Without a long-arm statute, the courts in a state might not have personal jurisdiction over an out-of-state defendant. A state's authorization to exercise jurisdiction is limited by the federal Constitution. The use of a long-arm statute is usually considered constitutional where the defendant has certain minimum contacts with the forum state and there has been reasonable notice of the action against that defendant.

Second, many countries take the view that American concepts of long-arm jurisdiction are too broad, and courts of such countries will not recognize judgments from American courts based on the exercise of American long-arm jurisdiction.

Looking at the issue from the non-American perspective, courts in some countries exercise jurisdiction based upon principles that American courts would consider unfair and repugnant to American law.

For example, in some countries, such as England and Israel, a court may exercise jurisdiction over a defendant that is considered to be a "necessary or proper" party in a case against a local defendant. It is not clear that such a jurisdictional basis would be upheld by American courts when the non-US judgment-creditor seeks to enforce in the United States.

In every lawsuit, the plaintiff must effect service of process upon the defendant(s). In the international context, the issue of service of process is more complex.

In the United States, service of process is routinely carried out by private lawyers or their agents. In contrast, many other countries consider the activity of serving process in a judicial proceeding to be one appropriate only for the government or an arm of the government.

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