Friend of Letters Blogatory Ingrid Brunk has a good post at the Transnational Litigation Blog about the oral argument in Devas v. Antrix, the case that asks whether it’s necessary, when seeking to confirm an arbitral award against a foreign state, to prove some connection between the foreign state and the United States. That could be so either because the foreign state is a “person” entitled to due process, or because the arbitration exception to FSIA immunity has some requirement of a connection.

There is a lot that’s of interest in the case, and several heavy hitters have filed amicus briefs. Does the “minimum contacts” test of International Shoe and its progeny apply at all in cases governed by the Fifth Amendment rather than the Fourteenth Amendment? Does the FSIA’s arbitration exception have, or imply, some sort of minimum contact or nexus requirement? My own big-picture view, which has little to do with the way the case has was argued,¹I haven’t read the amicus briefs, so perhaps one of the amici is thinking along similar lines. is that it doesn’t make any sense to require minimum contacts in any case seeking recognition and enforcement of a foreign money judgment or an arbitral award for damages. The main reason judgment creditors or award creditors seek recognition and enforcement in the United States is to try to satisfy the judgment or award by looking to assets in the United States.²That’s not the only reason, and there are classes of cases for which it’s not even the main reason. We ought to dust off the unpopular notice of quasi in rem jurisdiction and say that when you’re seeking to enforce a judgment or award by looking to property in the United States, the courts have jurisdiction to the extent of the property. Otherwise the United States becomes a haven for judgment and award debtors to stash their property.

I find quasi in rem jurisdiction fascinating, and the aversion to it hard to understand. Some older posts on the issue that you might find interesting are one on AHAB v. Standard Chartered Bank (D.C. 2014), one on Harvardsky Prumyslovy Holding, A.S. v. Kozeny (N.Y. App. Div. 2018), and one on Desiano v. Envision Foods (Mass. Super. Ct. 2017).

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  I haven’t read the amicus briefs, so perhaps one of the amici is thinking along similar lines.
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  That’s not the only reason, and there are classes of cases for which it’s not even the main reason.