PRIVATE

INTERNATIONAL LAW
Jurisdiction of the Courts

VIVASVAN GAUTAM
ROLL NO 902
SECTION C
LLB 3 YEARS COURSE
Introduction
The first question in an international case potentially
involving conflict-of-laws problems is which court has
jurisdiction to adjudicate the matter. Although the plaintiff
decides where to sue, the courts in that location may not have
jurisdiction, or they may have jurisdiction but be unwilling to
exercise it, for reasons of forum non conveniens (Latin:
“inconvenient forum”), as may happen in some common-law
countries.

Rationale behind choice of jurisdiction

There are several factors that affect the plaintiff’s decision of
where to file a case.
One is convenience.
For example
a plaintiff is likely to want to sue in a jurisdiction that is
reasonably close to his home, particularly because
witnesses and evidence may be more readily available
there.
Legal questions also are important.
A plaintiff may be more likely to file suit in a jurisdiction
that will afford him procedural and other advantages and
where the defendant has assets with which to satisfy an
ultimate judgment.
Examples of likely procedural or substantive law advantages
include
 i. the possibility of a jury determination of damages in a
tort case, the availability of punitive damages,
ii. the ease of obtaining pre-trial discovery of evidence
(commonly used in the United States),
iii. the possibility of suing on only a part of one’s claim to
determine the likelihood of success before committing
resources to a suit on the entire claim (a common
practice in Germany),
iv. and advantageous exploitation of variations in liability
standards.

However, the place of suit is not entirely up to the plaintiff.

The chosen court must have the power to entertain the case
(jurisdiction to adjudicate).
The jurisdictional grant will usually be defined by statute. In
addition, the exercise of jurisdiction may also be limited (as a
check on the statutory grant or on the judicial exercise of it)
by constitutional provisions or pervasive principles of law.
In the United States this is the function of the due process
clause of the Fourteenth Amendment of the Constitution,
which limits the exercise of the jurisdiction of state courts to
protect defendants against unreasonable burdens.
The Fifth Amendment similarly limits federal courts in
asserting jurisdiction in cases not based on state law.
In addition, in common-law countries, provisions of law or
court decision-making practice may limit the exercise of
jurisdiction to adjudicate for any number of reasons, including
the need to prevent local courts from becoming clogged with
litigation with which they have no concern (e.g., litigation
between foreigners concerning a claim that arose abroad),
especially when it seems likely that the courts of the forum
state were chosen only as a means of gaining procedural- or
substantive-law advantages not available to the plaintiff in his
home country’s courts (so-called “forum shopping”).
Especially in the United States, courts may consider
themselves to be a forum non convenience in these
circumstances and dismiss the action.
This occurred in Piper Aircraft v. Reyno
i. A suit filed in the United States on behalf of
Scottish parties whose relatives were killed in an
airplane crash.
ii. The flight originated in Scotland and was scheduled
to end there; the aircraft was owned by a British
entity; the pilot was Scottish; and all of the relatives
were Scottish.
iii. Only the defendants—the airplane manufacturer
(Piper) and the propeller manufacturer—had a
connection to the United States.
iv. Because the plaintiffs sought remedies that were not
available—at least not to the extent desired—under
Scottish law, they decided to bring suit in the United
States, making this a clear case of forum shopping.

American courts may dismiss for forum non convenience

when the exercise of jurisdiction would be unduly
burdensome for the defendant.
In many cases, dismissal protects the foreign defendant as
much as it protects the local court from unfair burdens of
foreign litigation.
Courts likewise will not entertain actions concerning title to
real property located in another country; while their judgment
would bind the parties before them, the power to deal with the
property itself (with effect as against all potential claimants)
belongs solely to the country of location (situs).

Civil-law countries generally do not dismiss actions for

reasons of forum non conveniens.
The European Court of Justice has held expressly that the
allocation of jurisdiction by EU law (namely, the Brussels I
Regulation) is binding on national courts.
As an exception, the Brussels II Regulation permits dismissal
or transfer for forum non conveniens reasons in child-custody
cases.
Each country determines the jurisdiction of its courts to
entertain a civil law suit.
In federal countries or unitary systems with strong traditions
of regional or provincial jurisdiction (e.g., the United States,
the United Kingdom, Canada, and Switzerland), it becomes
necessary to have rules to determine in which jurisdiction a
civil suit may be brought.
In some countries (e.g., Germany and Austria) the central
(national) law governs, while in others the constituent states
may determine the jurisdiction of their courts themselves
(e.g., the United States).
Although state-court jurisdiction is a matter of state law in the
United States, federal constitutional law, particularly the
Fourteenth Amendment’s due process, equal-protection, and
privileges-and-immunities clauses, limits the assertion of
state-court jurisdiction.
Most countries allow the parties to agree to the jurisdiction of
a court. Consent may take the form of an express agreement in
the initial business contract or at the time the dispute arises.
Alternatively, consent may be the result of conduct. The
plaintiff’s consent appears from the filing of the action.
The defendant’s consent may be presumed when, rather than
objecting to the court’s jurisdiction, the defendant confesses
judgment or appears and begins to litigate the controversy.
Even when both parties consent to a court’s jurisdiction, the
court in a common-law country may still decline to hear the
case—for example, when neither of the parties nor the
controversy has a connection to the country in which the court
is located.
In most cases, however, a court’s jurisdiction is not an issue
unless and until the defendant objects to it.
Differences between civil-law and common-law countries in
the absence of a choice by the parties
Traditionally, civil-law and common-law countries have
followed different approaches in determining which court has
jurisdiction in a civil action when the parties have not agreed
on or submitted to the forum.
Civil-law countries start from the premise that there is one
principal place where a suit can be filed: the domicile of an
individual or the seat of legal persons such as a corporation
(“general jurisdiction”).
In addition to these general bases of jurisdiction, a suit
ordinarily may be brought in the courts of the place to which
the suit has a special connection—e.g., where a tort was
committed or where its effects were felt, where the alleged
breach of a contract occurred, or, if title to real property is
involved, where the property is located (“specific
jurisdiction”).
Increasingly, countries have limited the exercise of
jurisdiction (and have prohibited parties from varying these
limitations by agreement) for the protection of weaker parties,
such as employees and consumers.
Such a pattern has emerged, for example, in the procedural
law of the EU.
Courts in common-law countries, particularly the United
States, also assert jurisdiction on these bases but additionally
will exercise jurisdiction simply on the basis of physical
power over the person of the defendant.
Thus, a court in the United States has jurisdiction over a
defendant if he has been served with the documents
commencing the suit in the territory of the state in which the
court is located, even if he was there only temporarily or
while in transit (“transient jurisdiction”).
The United Kingdom and Ireland also exercise jurisdiction on
this basis. U.S. law also provides for jurisdiction over a
company when it has been connected in some ongoing way
with the state, even if the particular dispute does not arise out
of that connection.
Thus, a court is authorized to assert jurisdiction when the
defendant is “doing systematic and continuous business”
within its state, even if the dispute arose elsewhere.
Most countries provide some bases of jurisdiction for the
benefit of local plaintiffs. French law, for example, grants
jurisdiction if the plaintiff possesses French nationality, and
German statutory law permits a local plaintiff to sue an absent
defendant on the basis of any property the defendant may
have in Germany, regardless of whether the litigation is
related to the property or even to Germany in any other way
(though modern German court decisions have given provision
a more limited reach).
Rules such as these, which favour plaintiffs (“transient
jurisdiction” also falls into this category), are known as
“exorbitant” rules of jurisdiction. Within the EU they have
been abrogated in cases in which the defendant is habitually
resident within the EU.
However, EU member-states may retain exorbitant
jurisdictional bases of national law in cases involving non-EU
defendants. Internationally—i.e., beyond the EU—these rules,
as well as the American “doing business” jurisdictional rule,
are a source of considerable tension.
The Hague Conference on Private International Law sought to
formulate an international convention on jurisdiction and
judgment recognition.
The effort was abandoned when the differences proved too
large to bridge. Instead, a much more limited convention on
choice of court agreements was adopted in 2005 and proposed
for adoption by member states and others.
Both civil-law and common-law countries have special rules
governing suits for judgments in rem (Latin: “with respect to
the thing”), which concern proprietary legal rights.
Unlike actions for judgments in personam (Latin: “with
respect to the person”), which concern personal legal rights
and may seek money damages or injunctions to do or not to
do an act, an in rem action seeks a judgment that produces
effects of its own on a legal relationship.
Examples include actions to quiet title to land, to foreclose a
mortgage on land (by selling it), and to remove a party’s
interest that encumbers title to land. In common-law
countries, family-status actions (e.g., divorce or the creation
of an adoptive family-child relationship) have been likened to
in rem actions;
For example,
In divorce proceedings, particularly in the United States,
the domicile of each spouse localizes the status and
permits the court at the domicile to assert divorce
jurisdiction.
At the same time, residence of varying length (from
several weeks to several months) may take the place of—
or may presumptively equal—domicile for divorce-
jurisdiction purposes.
In contrast, civil-law countries have not likened divorce
jurisdiction to in rem proceedings.
They provide for divorce, including the possibility of ex parte
divorce (i.e., only the petitioner is before the court), on the
basis of a close relationship to the forum state—e.g., residence
of a specified length of time.
Central to the continued divergence of these jurisdictional
approaches is the applicable law:
A court following an in rem approach to status matters
will always apply its own law.
In contrast, courts in civil-law countries treat the action as in
personam and make a choice-of-law determination that
focuses on personal connecting factors such as the nationality
or marital residence of the parties.
Because civil-law courts make choice-of-law decisions with
reference to the particular parties and their case, jurisdictional
standards can be more liberal in those countries than in
common-law countries, where less-restrictive standards would
lead to forum shopping.

Notification of parties
Fundamental fairness requires that the defendant receive
notice sufficient to afford him an opportunity to defend.
In common-law countries this notice is effected by “service of
process” on the defendant; similar procedures exist in civil-
law countries. Service on the defendant in person is
considered ideal; alternatively, “substituted service” (e.g.,
even by publication) is a last resort when the whereabouts of
the defendant are unknown.
International cases pose special problems. Countries often
cooperate bilaterally, either on the basis of express
agreements or as a matter of practice, in aiding each other’s
courts to effect service on the defendant. A very effective
multilateral mechanism is the Hague Convention on the
Service Abroad of Judicial and Extrajudicial Documents in
Civil or Commercial Matters, to which some 50 countries,
including the United States, China, Russia, and all the EU
states, are party.
It provides for a “Central Authority” in each member state
that receives service requests from other convention states and
executes them according to its own national procedures.

Choice of law
In its choice of the applicable law, the court that exercises
jurisdiction determines which law to apply to a case that
involves foreign parties, foreign transactions, or a number of
foreign elements.
In a simple world, the court would always apply its own law,
the law of the forum (known in Latin as the lex fori). Indeed,
some modern methodologies, particularly in the United States,
favour the lex fori approach.

Historical development
Classic theories of conflicts law were territorially oriented.
The German jurist and legal scholar Friedrich Karl von
Savigny (1779–1861) sought to identify the law where,
“according to its nature,” the legal problem or relationship had
its “seat.”
Anglo-American law also sought the territorially applicable
law because, in the view of the American legal scholar Joseph
Beale (1861–1943), whose thoughts shaped much of
American conflict-of-laws theory in the first half of the 20th
century, that is where the rights and obligations of the parties
“vested.”
This vested-rights doctrine maintained that, once a right was
created in one locale, its existence should be recognized
everywhere.
Classic theories of conflicts law used a number of connecting
factors to determine the territorially applicable law. In matters
of family law, Anglo-American law used the parties’ domicile
(narrowly defined).
In civil-law countries, by contrast, a person’s nationality was
until recently the most important connecting factor.
Because of the influence of the Hague Conference on Private
International Law, however, the reference is now more
commonly to the law of a person’s “habitual residence” (as it
is in the law of jurisdiction).
For torts, American law traditionally looked to the law of the
place of injury, whereas European law referred either to it or
to the law of the place where the wrongful conduct had
occurred.
Some European systems referred to the law of either of these
places; this was, and continues to be, the plaintiff-favouring
choice-of-law rule in Germany.
For contracts,
most legal systems looked to the place of performance
for breach but stipulated that the place of formation was
a more important connecting factor for questions of
validity.
These examples illustrate that rather well-defined connecting
factors can identify the applicable law in a predictable
manner, subject to exceptions in certain difficult cases.
Despite, or perhaps because of, their predictable results, these
rules at times failed to serve the interests of justice: they were
inflexible, and they did not prevent important aspects of a
particular case from being overlooked.
Such problems could have occurred in cases involving the
fortuitous commission abroad of a tort involving parties with
a common domicile in the forum or in another state (where
the long-term effects of the tort would be felt) or the
conclusion of a contract in an unrelated state (for example, at
a trade fair) between two or more parties, all of whom
conducted business in a common (but different) state.
Consequently, courts and parties resorted to so-called “escape
devices” that yielded better, more appropriate results.
Among these is the recharacterization of a set of facts—e.g.,
the recasting of a question of contract as a tort or a tort
question as one of family law.
For example,
 What law governs the question of whether spouses have
the capacity to sue each other or whether they have
immunity?
In a personal-injury case, is this a question of tort law
(i.e., the law of the place of injury) or family law (law of
the state of the marital domicile)? If the two laws differ,
the characterization of the issue may produce different
outcomes.
The escape from rigid rules by means of recharacterization
resulted in a period of considerable uncertainty, especially in
the United States.

Other considerations
Differences between the conflicts law of different countries
may raise additional choice-of-law questions, such as those
pertaining to the renvoi (French: “send back”) principle.
If the foreign law, to which the forum’s conflicts rule refers,
contains a conflicts rule that refers back to the law of the
forum, will the latter accept the reference and apply its own
law?
Similarly, if the foreign law contains a conflicts rule that
refers to the law of a third country, will the forum follow that
reference?
The underlying question hinges on whether the forum’s
reference to foreign law includes that law’s conflicts rules in
the first place.
Many legal systems answer the question in the affirmative and
thereby resolve the two questions posed in the foregoing.
But not all conflicts systems utilize renvoi (most American
courts do not), and even those legal systems that do use it or
have used it in the past exclude renvoi.
This is now the case in EU conflicts law with respect to tort
and contract cases.
On procedural issues, a court will always apply its own law.
There is no agreement, however, on which issues are
procedural and which are substantive.
Recognition and enforcement of judgments
Judgments are sovereign acts that have no force beyond the
jurisdiction of the court that renders them. Thus, if assets for
satisfying a judgment in favour of a creditor are unavailable
locally, recognition and enforcement of the judgment will
need to be sought in a state in which the debtor does hold
assets.
Within the United States, recognition and enforcement of
sister-state judgments are mandated by the full faith and credit
clause of the federal Constitution and are facilitated
procedurally in many states by uniform state laws.
For EU member-states the Brussels Convention on
Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters (1968) and its successor, the Council
Regulation on Jurisdiction and the Recognition and
Enforcement of Judgments in Civil and Commercial Matters
(2000; Brussels I), perform a similar function by mandating
the automatic recognition and enforcement of EU member-
state civil and commercial judgments in all other member
states, subject only to few exceptions.
Another EU regulation, the Council Regulation concerning
Jurisdiction and the Recognition and Enforcement of
Judgments in Matrimonial Matters and the Matters of Parental
Responsibility (2003; the Brussels II Regulation), does much
the same for divorce and custody decrees.
Internationally, the recognition of a judgment is a matter of
national law, although it is sometimes dealt with in bilateral or
multilateral treaties (except in the United States, which is not
party to any judgments-recognition treaty). National legal
systems will ordinarily recognize a judgment rendered in a
foreign country (sometimes on the condition of reciprocity),
provided that the rendering court had jurisdiction (as
measured by the standards of the recognizing court), that the
judgment debtor had received notice sufficient to enable him
to defend, and that the foreign judgment does not offend the
public policy of the recognizing state.
Most systems do not allow a review of the foreign judgment
on the merits.
However, when a court rejects a foreign judgment on the basis
of public policy, it will necessarily have considered
substantive or procedural aspects of foreign law and, because
of its disapproval of them, refuse to accept the outcome of the
case.
A German court, for example, will refuse to recognize an
American punitive damage judgment because, according to
the German view, punitive damages exceed the purview of
tort law, which seeks compensation but not punishment.
Similarly, an American court may refuse to recognize an
English judgment for damages because English substantive
and procedural law (e.g., the burden of proof in defamation)
violates U.S. constitutional-law principles.
In composite jurisdictional systems such as those of the
United States and the EU, where a central norm establishes
jurisdictional limits for the constituent units, alleged
jurisdictional defects must be raised directly (on appeal within
the particular constituent unit’s system) when both parties are
before the court.
They cannot be raised collaterally—i.e., as a defense against
recognition of the judgment in another constituent unit.
The effect of the first court’s judgment (and of issues
necessarily bound up with it) on the immediate parties, when
not appealed or when affirmed on appeal, becomes res
judicata (Latin: “the matter is adjudicated” or “a thing
adjudged”) and is not open for re-examination in a second
forum (nor in the original forum after a period fixed by the
statute of limitations has expired).
The scope of a judgment’s res judicata effect (the recognition
of a judgment as a bar to the initiation of a new suit all over
again) is ordinarily that which attaches under the law of the
rendering state.
Exceptions may apply when the judgment is rendered by
default (i.e., the defendant is not before the rendering court),
when certain effects are unknown in the law of the
recognizing country, or perhaps also when a judgment goes
beyond the res judicata effect that the latter’s law would
accord.