contract-law international liability tort product-liability
Personal liability forum shopping: When does US personal liability law apply? When can its application be excluded?
<p>I am interested in the possibilities of forum shopping in regard to personal injury claims. (Tort and contract.)</p>
<p>For the sake of argument, let's assume a manufacturer M that manufactures electronics equipment. M is domiciled, operates and manufactures outside the United States. There are no obvious connections to the United States—though M may be using US banking institutions (e.g. PayPal) or US service providers (e.g. Amazon) for its website.</p>
<p>When may M or its officers or employees be liable for personal injury under US law? When can such liability be categorically excluded?</p>
<p>To get this question started I have a few possible scenarios:</p>
<ol>
<li>Devices delivered to non-US customers at an address outside the US. -&gt; No link to the US. US law should not apply, right?</li>
<li>Devices delivered inside the US. -&gt; US law will apply.</li>
</ol>
<p>That seems like common sense, but what about some tricky situations:</p>
<ol start="3">
<li>Devices delivered outside the US to US citizens living abroad or travelling.</li>
<li>Devices delivered to a non-US address but bought by a US resident that then has the device shipped to the US by a third party himself. (Mail forwarding.)</li>
<li>Devices sold to a non-US customer, delivered to a non-US address. The customer then sells the device on to customers in the US.</li>
</ol>

<h2>When a court/tribunal says it does</h2>

<p>US law applies when the court/tribunal hearing the dispute (which may be US or foreign) decides, after hearing both side’s arguments, that it does. <strong>This is not decided in advance.</strong></p>

<p>As a practical matter this is only an issue when the parties make it an issue. If both parties agree that it does or doesn’t (or it’s clearly obvious) then it does or doesn’t. Courts/tribunals decide <em>disputes</em> - if the applicable law is not in dispute then they don’t get involved.</p>

<p>These things are also not all or nothing - a dispute might need to use international maritime law for the shipping elements, French contract law because it’s a French contract, US insurance law because it’s a US insurer, Australian Consumer Law because it’s a consumer contract in Australia and Queensland security of payment law because it’s a building dispute in Queensland.</p>

<p>The question is essentially one of specific personal jurisdiction of a court over a defendant, and interpretation of the relevant &quot;long arm statute&quot;.</p>
<p>&quot;General jurisdiction&quot; covers cases where you can be sued over any conduct arising anywhere in the world because you are &quot;at home&quot; there. This is basically the domicile of an individual, or the headquarters of a corporation.</p>
<p>&quot;Specific jurisdiction&quot; covers cases where general jurisdiction over the defendant is not available in that court, but specific facts of the case link it to the place where a lawsuit is brought.</p>
<p>The hard cases tend to be in your category 5 and depend upon what the foreseeable next destination of the goods will be. If you sell to a non-U.S. distributor, knowing that the goods will be shipped 100% to California, your company may still have liability for product liability. If you don't know where the goods will be sold and aren't willfully blind to the reality, you probably won't be accountable in U.S. courts for the harm, but could be sued in your own country by U.S. based plaintiffs.</p>
<p>Also, under the law of sales in the U.S., the seller to a U.S. person has liability for defective goods causing harm, even if the seller simply resold good purchased from a manufacturer without changing them or making them more dangerous in any way, and the seller, in turn, may have recourse to be indemnified up the supply chain until reaching you, on a breach of warranty theory.</p>
<p>The bottom line analysis is whether the conduct of the defendant is such that the defendant has &quot;purposefully availed itself&quot; of the laws of the state in a manner creating a foreseeable risk that it would be held to account in the courts of that state. (Federal court jurisdiction in the U.S. is analyzed on a state by state basis in civil cases even though this isn't a constitutionally required limitation.)</p>
<p>Generally if there is a foreseeable likelihood that harm will be caused by the defendant or its goods in a state, it is likely that jurisdiction will be present.</p>
<p>Generally, the presence of an affiliated entity with the true defendant (e.g. a parent company or sister company) is insufficient to exercise jurisdiction.</p>
