The proposed Hague Convention provides the United States with a guarantee that U.S. judgments in commercial and civil matters involving at least one foreign party will be recognized and enforced among the signatory countries. It requires the courts that render the judgments to have proper jurisdiction over the parties and the controversies based on a list of accepted and prohibited grounds for the exercise of jurisdiction. Among the prohibited grounds are transient and "doing business" general jurisdiction. Pursuant to the Hague convention, Congress would have to pass implementing legislation proscribing these prohibited bases of jurisdiction in both federal and state courts. Yet, Congress possesses no constitutional authorization to regulate in this area with respect to the states in spite of its commerce and treaty powers. Under the Supreme Court's current interpretation of the Tenth Amendment and the principles of federalism, it is likely that any such implementing legislation would be found unconstitutional. The alternative is to leave the states to develop their own jurisdictional law in light of the Hague Convention and under the guidance of the Constitution. The purported benefits of the Hague Convention might just entice the states to abandon transient and "doing business" jurisdiction, allowing the United States to meet all of the obligations of the Hague convention and become a signatory.
Khoi D. Nguyen,
Invisibly Radiated: Federalism Principles and the Proposed Hague Convention on Jurisdiction and Foreign Judgments,
28 Hastings Const. L.Q. 145
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol28/iss1/4