Research On Extraterritorial Jurisdiction Of U.S.Compulsory Discovery Order

The discovery procedure in the U.S.Federal Rules of Civil Procedure originated from the English equitable discovery statutes.Over the years,discovery procedure has been widely used by U.S.courts to require foreign defendant and foreign nonparty who has a business presence or set up correspondent or settlement account in this country to present evidence located outside the country in domestic proceedings.China also inevitably conflicts with the extraterritorial jurisdiction of the U.S.compulsory discovery order,and has yet to develop a sound,effective measure to deal with it.To summarize the judicial practice of extraterritorial jurisdiction of U.S.compulsory discovery order,the U.S.discovery was initially established under strict territorial constraints.As the United States became an international financial center,courts began to expand the scope of special jurisdiction,making compulsory discovery procedure applicable to foreign nonparty beyond territorial limits;and using the principle of international comity as the standard for whether to compel discovery.This leads to the following questions,including: whether the expansion of the extraterritorial scope of discovery procedure in the United States by weakening the standard of special jurisdiction goes too far beyond the principle of territoriality in international law;whether the use of extraterritorial jurisdiction to circumvent the Hague Evidence Convention violates the international obligations assumed by the United States;and whether the tendency to formalize the analysis of international comity can avoid compulsory discovery order from infringing on the sovereignty of other countries and how China should respond.As to the extraterritorial jurisdiction of the U.S.compulsory discovery order,the views of scholars vary from country to country and remain inconclusive.Jurisdiction is an important tool and the primary limitation to extraterritorially compel discovery in the United States.From the theory of territorial jurisdiction,the traditional principle of territorial jurisdiction has shown to be inadequate in judicial practice,but territory is still an important basis for the extraterritorial jurisdiction of a state and an important criterion for judging whether the jurisdiction is excessive.There is no general limitation on national extraterritorial jurisdiction under international law,but extraterritorial jurisdiction should also satisfy the requirement of substantial connection and be limited to reasonable boundaries at the same time.The expansion of the U.S.extraterritorial application of person-centered special jurisdiction over foreign nonparty is also,objectively,an extension of jurisdiction outward from the territory by establishing a territorial connection between the foreign nonparty and the United States to establish jurisdiction.A foreign nonparty with a branch in the United States may be deemed to have a substantial geographic connection to the U.S.forum,but a foreign nonparty who merely maintains a correspondent or settlement account in the United States and transacts business in U.S.dollars does not have a substantial connection to the U.S.forum,and its inclusion would be an infringement of another country’s sovereign authority.In addition,U.S.special jurisdiction was first applied by the Court to actions arising out of the establishment of a nexus between an interstate defendant and the forum.The U.S.Constitution provides a series of extrinsic constraints that limit the jurisdictional powers of state courts to reasonable limits.When special jurisdiction is applied to compulsory discovery of foreign nonparty in international cases,there is an inherent lack of consideration of the identity of the nonparty,and extrinsic jurisdiction is no longer strictly bound,thus often leading to excessive jurisdiction.Therefore,the use of special jurisdiction as a basis to govern the compulsory discovery of foreign outsiders does not guarantee the reasonableness of extraterritorial jurisdiction.From the perspective of the Hague Evidence Convention,the optional nature of the Hague Evidence Convention is the main rationale for the U.S.to recuse itself from judicial cooperation in extraterritorial depositions.However,after reviewing the contracting history of the Convention;interpreting the text of the Convention;and analyzing the status of the Convention in U.S.substantive law as well as in judicial practice.The purpose of the convention can be interpreted as follows,the Convention aims to promote cooperation among States Parties in international mutual legal assistance,replace different national practices with consistent and clear provisions,and mitigate extraterritorial evidentiary conflicts.The Convention recognizes more flexible means of taking evidence extraterritorially that exist or may be developed in the future by States Parties,provided that the implementation of such means is agreed to by the State where the evidence is located.Therefore,U.S.compulsory discovery order against foreign nonparty should be excluded from the Convention,and U.S.courts should defer to the supreme law status of the Hague Evidence Convention in this country to fulfill its obligations.Based on the above analysis,China should actively take countermeasures instead of passively defending itself when it is involved in litigation.In response to the“improper extraterritorial application of foreign laws and measures”,China has promulgated and implemented the Measures for Blocking Improper Extraterritorial Application of Foreign Laws and Measures on January 9,2021,which should include the act of “providing information in China to foreign judicial or law enforcement agencies” into the scope of regulation,combined with anti-retaliation rules to block the extraterritorial application of U.S.discovery.Specifically,new provisions should be set up for the categorization and approval of extraterritorial submissions and implemented in conjunction with various sectoral laws;provisions for administrative remedies should be added to guarantee the fairness of the approval process and the reasonableness of the results;and finally,foreign judgments involving extraterritorial compulsory discovery should not be recognized and enforced.