The opinion
LINDE, J.,
concurring.
I agree that the extended dealings between the parties described in the Court’s opinion bring this case within the interpretation given ORS 14.035 in State ex rel White Lbr. v. Sulmonetti, 252 Or 121 , 448 P2d 571 (1968), and subsequent cases. However, I doubt that the reach of "long-arm” jurisdiction under the statute is adequately defined by saying (1) that the statute means to reach as far as the Federal Constitution permits, and (2) that the Constitution permits whatever is fair. The effect of this approach is to direct the trial court and counsel, whenever a plaintiff has adequately alleged the doing of business or the commission of a tort, to engage in a constitutional dispute about the federal boundaries of state jurisdiction with little guidance from the United States Supreme Court *719 and by a standard of "fairness” which this court has described as "nebulous.” See Neptune Microfloc, Inc. v. First Florida Utilities, Inc., 261 Or 494, 497 , 495 P2d 263 (1972).
A nebulous formula like "fairness” serves only to homogenize the question of Oregon’s statutory policy, which is our responsibility, and the question of constitutional limitations, in which we are bound by federal standards. As the court points out, these are distinct questions. The case-by-case determinations of this court can in time outline a perimeter for the coverage of ORS 14.035, as stated in Neptune Microfloc, 261 Or at 497 , but they cannot be conclusive on the limits of "due process” so as to preclude parties from litigating the federal issue in each case.
The federal issue does not, of course, originate with the inclusion of the due process clause in the fourteenth amendment in 1868, 90 years after the formation of the Union. The reach of state jurisdiction and its limits is an issue inherent in any territorial division of legal and political authority, including our federal system. See Tharalson v. State Dep’t of Revenue, 281 Or 9, 20 , 573 P2d 298 (1978); State ex rel White Lbr. v. Sulmonetti, 252 Or at 128-133 , 448 P2d at 574-577 (O’Connell, J., dissenting). On a territorial view of jurisdiction, the limits of a state’s authority to reach persons or property beyond its borders would be conceived in terms of power, not of fairness. "Fairness” is superimposed as a standard only after the development of the doctrine that only a fair procedure could be "due process.” It finds expression in the phrase from International Shoe Co. v. Washington, 326 US 310 (1945), on which this court’s past opinions have relied, that a state’s assumption of jurisdiction must not "offend traditional notions of fair play and substantial justice. 1
*720 Perhaps even without a Civil War and a fourteenth amendment, the law of state jurisdiction within a multistate system like ours would have evolved to a search for "contacts” sufficient to justify the "fairness” of jurisdiction in the forum state. 2 But that "fairness” has not wholly displaced the older concepts of federalism appears in another phrase from Hanson v. Denckla, 357 US 235, 251 (1958), quoted in State ex rel Western Seed v. Campbell, 250 Or 262, 273 , 442 P2d 215 (1968), cert denied, 393 US 1093 (1969), that due process limitations "are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States.”
It is not particularly logical to treat power and fairness as a single issue, amenable to a single test. To the extent that the territorial principle retains independent force, it implies the existence of general criteria focused on the characteristics of states in a federation, not on the circumstances of particular litigants. "Fairness,” by contrast, purports to concern the propriety of the forum with respect to the relative positions of the litigants. But when "fairness” is used to describe the conditions under which the forum state *721 may constitutionally take jurisdiction of a claim against a defendant outside the state, those conditions will necessarily be stated as factors or patterns that make long-arm jurisdiction "fair” and therefore constitutional as a general rule for all similar cases, irrespective of the relative positions of the litigants in the particular case. There may be far less unfairness in asking a defendant in Vancouver, Washington, with full notice of the proceedings, to litigate a case in Multnomah County, Oregon, than to demand this of a defendant in Fort Lauderdale, Florida, as in White Lbr., but territorial notions of a prior "entry into” or "presence in” the jurisdiction may allow one and not the other. On the other hand, there is no obvious connection between a territorial conception of power and the question whether a defendant’s contacts with the forum state were "purposeful,” Hanson v. Denckla, quoted in Western Seed, 250 Or at 273 .
Justice Goodwin writing for the court in Western Seed and subsequently Justice Holman in White Lbr., 252 Or at 128 (concurring opinion), and Wakeman v. Davis, 271 Or 414, 417 , 532 P2d 796 (1975) (concurring opinion), have suggested that when an enterprise chooses to take advantage of a multistate market to sell its products (or for that matter, to obtain resources or capital), it may fairly expect to litigate in the state of the other party to the transaction. Insofar as the general constitutional test of "fairness” is concerned, I think this may well be correct. As I have suggested above, however, fairness to particular litigants is often an ad hoc rather than a categorical determination, and one that cannot be properly decided as a matter of Oregon law so long as we treat it as one that must always be litigated as an issue of federal constitutional law. To permit such ad hoc determinations of fairness requires a nonconstitutional element in ORS 14.035 corresponding to the doctrine of forum non conveniens. See Scoles, Oregon Conflicts: Three Cases, 49 Or L Rev 273, 278-280 (1970). It should be possible for an Oregon court to dismiss a case after allowing *722 plaintiff time to obtain jurisdiction in a more appropriate forum (perhaps involving a stipulation by defendant as to service of process, waiver of the statute of limitations, or other safeguards for plaintiff) irrespective of whether the Oregon court believes that its own exercise of jurisdiction would be unconstitutional.
In Illinois, the source of our long-arm statute and the doctrine of its expansive scope, see Western Seed, 250 Or at 270-271, the state supreme court in fact approves such a dismissal of cases without a conclusion whether the Constitution would permit the state to assert jurisdiction. See, e.g., Adkins v. Chicago, R. I. & P. R.R., 54 Ill 2d 511, 301 NE2d 729 (1973), cert. denied, 424 US 943 (1976), cf. Cotton v. Louisville & N.R.R., 14 Ill 2d 144, 152 NE2d 385 (1958). 3 Elsewhere the procedure has been codified. 4 These solutions, and *723 the underlying distinction between "fairness” as the presence of constitutional prerequisites and fairness of the choice of forum in the actual case, are described in Morley, Forum Non Conveniens: Restraining Long-Arm Jurisdiction, 68 NW U L Rev 24 (1973). Once it is recognized that fairness is properly a matter of Oregon law before it becomes, in a different sense, a synonym for federal constitutional limits, a procedure to assure fairness can be provided by a statute or perhaps a rule of the Council on Judicial Procedure, or possibly by further consideration of the standards implicit in ORS 14.035. However, the last of these possibilities has not been briefed in this case. Accordingly, I concur in the decision.
See Myers v. Brickwedel, 259 Or 457, 462-464 , 486 P2d 1286 (1971); State ex rel White Lbr. v. Sulmonetti, 252 Or 121, 124 , 448 P2d 571 (1968); *720 State ex rel Western Seed v. Campbell, 250 Or 262, 272 , 442 P2d 215 (1968), cert. denied, 393 US 1093 (1969); cf. Enco, Inc. v. F.C. Russell Co., 210 Or 324, 335-336 , 311 P2d 737 (1957).
The question whether there are or are not fixed limits to state jurisdiction is begged by the ambiguity of the quoted formula from International Shoeit&eli: Does the phrase mean that state jurisdiction must satisfy "fair play and substantial justice,” which are "traditional notions” with changing content, or does it mean that state jurisdiction must satisfy the traditional notions of what constitutes fair play and substantial justice, even though circumstances change?
By contrast, the need to harmonize different national laws on jurisdiction among members of the European Economic Community led to a convention that bases jurisdiction in civil and commercial matters primarily on the domicile of the defendant, although contract actions may be brought where the contract is to be performed, and there are special rules for insurance and other claims. See Bartlett, Full Faith and Credit Comes to the Common Market: An Analysis of the Provisions of the Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 24 Int’l & Comp L Q 44 (1975).
The Illinois court held that discretion to retain jurisdiction or dismiss under forum non conveniens lies initially with the trial court, presumably within the usual limits. It is not clearly established whether Oregon courts have similar discretion, although Homer v. Pleasant Creek Mining Corp., 165 Or 683, 703-704 , 107 P2d 989 (1940), reh. den. 109 P2d 1044 (1941), seems to hold that they do. Other states also have adopted the same solution by judicial decision. See, e.g., Cray v. General Motors Corp., 389 Mich 382, 395 , 207 NW2d 393 , 59 ALR 3d 127 (1973); Silver v. Great American Ins. Co., 29 NY2d 356, 360-361 , 278 NE2d 619 , 328 NYS2d 398 (1972); Werner v. Werner, 84 Wash 2d 360, 371, 526 P2d 370 (1974); Developments in the Law — State-Court Jurisdictions, 73 Harv L Rev 909, 1008-1009 (1960).
A number of jurisdictions have adopted the Uniform Interstate and International Procedure Act which provides in section 1.05:
When a court finds that in the interest of substantial justice [an] action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any conditions that may be just.
See, e.g., Ark Stat Ann § 27-2502 (Supp 1975); Mass Gen Laws Ann ch 223A, § 5 (Supp 1977-1978). California has enacted a similar provision. See Cal Civ Pro Code § 410.30 (1973). The California Supreme Court has described this statute as a codification of the fomm non conveniens doctrine which had been "established in California by judicial decision.” Archibald v. Cinerama Hotels, 15 Cal 3d 853, 857, 544 P2d 947 , 126 Cal Rptr 811 (1976). Wisconsin has enacted a more detailed fomm non conveniens statute. It provides:
(1) Stay on initiative of parties. If a court in this state, on motion of any party, finds that trial of an action pending before it should as a matter of substantial justice be tried in a forum outside this state, the court may in conformity with sub. (3) enter an order to stay further *723 proceedings on the action in this state. A moving party under this subsection must stipulate consent to suit in the alternative forum and waive right to rely on statutes of limitation which may have run in the alternative forum after commencement of the action in this state. A stay order may be granted although the action could not have been commenced in the alternative forum without consent of the moving party.
(3) Scope of trial court discretion on motion to stayproceedings. The decision on any timely motion to stay proceedings pursuant to sub. (1) is within the discretion of the court in which the action is pending. In the exercise of that discretion the court may appropriately consider such factors as:
(a) Amenability to personal jurisdiction in this state and in any alternative forum of the parties to the action;
(b) Convenience to the parties and witnesses of trial in this state and in any alternative forum;
(c) Differences in conflict of law rules applicable in this state and in any alternative forum; or
(d) Any other factors having substantial bearing upon the selection of a convenient, reasonable and fair place of trial.
Wis Stat Ann § 801.63 (1977).