UNIT II

Jurisdiction
The geographic area over which authority extends; legal authority; the authority to hear
and determine causes of action
 Jurisdiction refers to the inherent authority of a court to hear a case and to declare
a judgment. When a plaintiff seeks to initiate a suit he or she must determine
where to file complaint. The plaintiff must file suit in a court that has jurisdiction
over the case. If the court does not have jurisdiction, the defendant may challenge
the suit on the ground, the suit may be dismissed, or its result may be overturned
in subsequent action by one of the parties in the case. English law somehow says
that The jurisdiction of a court operates in two dimensions:
A) Jurisdiction over a persons (known as jurisdiction in personam); and
B) Jurisdiction over subject matters
English law widely followed "defendant presence rule". In Every case, a court must have
jurisdiction over both the defendant and the cause of action (subject matter) before it may
hear the case and resolve any dispute. If a court cannot exercise effective jurisdiction
over a defendant, it may be unable to order the enforcement of any decree issued as a
consequence of the action. Source: Conflict of laws, Dr, Charles Wild, Second Edition,
Old Bailey Press London, 2005, pg.6)
Subject matter of jurisdiction
 Exercise of jurisdiction by national courts in matters ingrained with foreign
element.
 The rules determining the jurisdiction of national courts
 The jurisdictional competence of national courts
 Actions in rem
 Actions in personam
 Limitation on exercise of jurisdiction
 Challenging jurisdiction
Principle/Rule of Jurisdiction
1. Jurisdiction in personam (Jurisdiction over the parties/Person)
a) Lex Partie (Country of citizenship/Nationality)
b) Lex domicile (Country of Domicile)
2. Jurisdiction in rem (Jurisdiction over the Property/things)
a) Lex Situs Rule (Where the property is situated)
Paras Diwan/Peeyushi Diwan:- Nationality is a basis of jurisdiction in most of the
countries of civil law system. Domicile has been the basis of jurisdiction in the common
law system. The modern tendency is to substitute ordinary residence or habitual residence
as basis of jurisdiction for domicile and nationality. In modern international conventions,
habitual residence is being accepted as an alternative basis of jurisdiction.

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 Action in personam
 An action inter partes (parties)
 A lawsuit seeking a judgment to be enforceable specifically against an
individual person.
 Design to settle the right of parties as between themselves
 An in personam action can affect the defendant's personal rights and interests
and substantially all of his/her property.
 It is based on the authority of the court, or jurisdiction, over the person as an
individual rather than jurisdiction over specific property owned by the person.
 Jurisdiction in personam: action brought against person to compel him to do
particular thing, such as payment of debt or damages for breach of contract, or
to compel him not to do something (i.e. injunction)
 Action in personam designed to settle rights of parties between themselves, i.e.
action for damages
 For Example Muluki Ain - Where it is required to issue a summons, process
(Italayanama), notice of time-limit or letter of clarification on any case to any
person staying or residing abroad or to enquire such a person into any matter
the following provisions shall apply:
 If it is expedient to issue a summons, process, notice of time-limit or letter to a
person residing outside Nepal, it shall be issued and served in accordance with
the provisions contained in the rules framed by the Government of Nepal in
this respect.
 A failure to serve the summons so issued and to inquire the relevant person
into the matter shall not preclude the office from trying and adjudging the case
in accordance with law…………………1
 In serving a summons, process, notice of time-limit or letter issued by a court
outside Nepal, it shall be served only on the basis of reciprocity in accordance
with the provisions contained in the rules framed by the Government of Nepal
in this respect …………………2
(No. 34 of Court Management)
 In appointing an attorney by a foreign national who has not
immovable property in the territory of Nepal in a case which has
been filed in any office in Nepal and in which attorney may be
appointed in accordance with law, appointment of attorney by such
foreign national shall be entertained only if such foreign national or
person furnishes a bail of an amount equivalent to the punishment

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 which can be imposed on him or her in accordance with law if his or
her claim is sustained or claim or accusation made against him or her
is sustained or furnishes a guarantee by a person who has an
immovable property in the territory of Nepal in consideration for
such bail. (No 66)
 Four sets of rules governing existence of in personam jurisdiction of courts:
o Brussels regime rules (Brussels Convention on Jurisdiction & Enforcement
of Judgments in Civil, Commercial Matters)
o Modified rules under European legislation Civil Jurisdiction and Judgment
Act 1982, amended CJJ Order 2001
o Rules under Lugano regime, derived from Lugano Convention
 If the technical object of the suit is to establish a claim against some particular
person…….or to bar some individual claim or objection, so that only certain
persons are entitled to be heard in defense, the action is in personam, although it
may concern the right to, or the possession of, a tangible thing (Tylor v. Judges of
the court of Registration (1900)
 The foundation of the jurisdiction is physical presence (English Law, Justice
Holmes)
 Once the court has asserted its power by service of process upon the defendant
personally, it is not rendered incompetent by his subsequent departure from the
country.(presence short of residence founds jurisdiction)
Additional points:
Personal Jurisdiction is based on territorial concepts. That is, a court can gain personal
jurisdiction over a party only if the party has a connection to the geographic area in which
the court sits. Traditionally, the concept was taken only after the presence of the
defendant in the state. Since the late nineteenth century, notions of personal jurisdiction
have expanded beyond territorial concepts, and courts may gain personal jurisdiction over
defendants on a number of grounds. However, the territorial basis remains a reliable route
for establishing personal jurisdiction. Geographical area is taken the first basis to claim
jurisdiction of the person.
In respect of actions inter parties the court may have jurisdiction in the following
situations:
1. When the defendant is present within the jurisdiction
2. When the court assumes jurisdiction against an absentee defendant
3. When the defendant submits to the jurisdiction

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 Source:- Paras Diwan, Peeyushi Diawn, Private International Law Indian and
English, Fourth revised and updated edition, Deep &Deep Publication, New Delhi,
1998, pg.183)

Action in rem
 A right against all person
 Absolute protection of ownership
 In Roman law an action in rem was one brought in order to justify a jus in rem,
 It is a right acquired by one over a thing belonging to another- a jus in re aliena
 An-act, proceeding or right available against the world at large, as opposed to
in personam.
 A right to property is a right in rem.
 The judgment in rem in which it results may equally well result from certain
other actions in personam. E.g. A marriage, for instance, is not strictly a res
but it has always been treated as savoring of a res ( Salsem v. Administrator of
Austrian Property, (1927)
IMMOVABLE PROPERTY
 The general rule governing real or immovable property is that such property is
subject to the laws of the place within which it is situated.
 Therefore, the lex loci rei sitae/lex situs, the law of the place where it is situated,
governs the disposition of immovable property, whether by deed, descent or in any
other mode.
 This universal rule includes all rules which govern the descent, alienation, and
transfer of such property and the validity, effect, and construction of wills and
other conveyances.
Movable (personal) property
Issues:
 Transfer of tangible movables
 Transfer of intangible movables
General concept
 Opposed to real property or real estate
 In common law systems, personal property may also be
called chattels or personality.
 In civil law systems, personal property is often called movable property or
movables – any property that can be moved from one location to another.
 This term is in distinction with immovable property or immovables, such as land
and buildings.

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  Generally, jurisdiction on movable property, applies law of the owner’s domicile
 But some cases it depends on the nature of movable property. For example issue
of transaction of estate carries law of the nation-situs rule
 For intellectual property- where the property is registered
 Tangible-sometimes where the property belongs and sometimes where the owner
belongs
 Intangible- law of the country where the company registered and sometimes nature
of the damaged
Theories for transfer of movable property
 The Domicile theory (Lex domicilii) Oldest theory
 The Lex Situs theory (Lex Situs-Morris)
 The Lex actus theory (Lex Loci actus- (Where the transfer takes place)
 The proper law theory (Newest theory-Cheshire)
JURISDICTION AND IMMUNITIES
Immunity from jurisdiction
Persons who may claim exclusion from jurisdiction (Against whom suit may not be filed)
Basic concepts
1. Sovereigns and Sovereign states
(An equal has no power over an equal)
The basic rule is a foreign sovereign or sovereign foreign state is immune from
the jurisdiction of the domestic courts, though the court would take jurisdiction
if the sovereign submitted thereto.
1. Ambassadors and other diplomatic officers
I. Diplomatic agents
II. Members of the administrative and technical staff
III. Iii Members of the service staff
IV. 4. Consular
V. 3. International organization and their represntatives
VI. 4. Special agencies
Exception: Voluntarily invoke of jurisdiction
Persona non grata
Diplomatic Privilege and Immunities of the Foreign States and Representatives
Act, 2027 (1970) of Nepal
Section 10. Immunity from Criminal, Civil and Administrative Jurisdictions of
Nepal to the Diplomatic Agent: (1) Except in the cases provided hereunder, a
Diplomatic Agent shall enjoy immunity from all criminal civil and administrative
jurisdictions:

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 (a) A real action relating to private immovable property situated in the territory
of the Foreign State for the purpose of the Mission.
(b) An action relating to succession in which the diplomatic agent is involved as a
private person and not on behalf of the Foreign State.
(c) An action relating to any professional or commercial activity exercised by the
Diplomatic Agent outside his/her official functions.
(2) A Diplomatic Agent is not obliged to give evidence as a witness.
(3) No measures of execution may be taken in respect of a Diplomatic Agent
except in the cases coming under Sub-section (a), (b) and (c) and provided that
the measures concerned can be taken without infringing the inviolability of
his/her person or of this/her residence.
(4) Notwithstanding anything contained in this Section, the initiation of the
proceedings by a Diplomatic Agent shall preclude him/her from invoking
immunity from jurisdiction in respect of any counter claim connected with the
principal claim.
-!)= s'6g}lts k|ltlglwnfO{ g]kfn s'6g}lts k|ltlglwnfO{ g]kfn s'6g}lts k|ltlglwnfO{ g]kfnsf]
kmf}Hbf/L, b]jfgL tyf k|zf;sL sf] kmf}Hbf/L, b]jfgL tyf k|zf;sLo clwsf/ o clwsf/ If]qaf6 pGd'lQm
M -!_ s'6g}lts k|ltlglwnfO{ b]xfosf d'2fdfldnfdf afx]s ;a} kmf}Hbf/L, b]jfgL tyf k|zf;sLo clwsf/
If]qaf6 pGd'lQm x'g]5 M– -s_ lgof]usf] lgldQ ljb]zL /fHosf] tkm{af6 /fv]sf]df afx]s s'6g}lts
k|ltlglwsf] g]kfnleqsf] lghL crn ;DklQsf] ;DaGwdf p7]sf] d'2fdfldnf, -v_ ljb]zL /fHosf] xsdf
geO{ s'6g}lts k|ltlglwsf] JolQmut x}l;otdf pQ/flwsf/ ;DaGwdf p7]sf] d'2fdfldnf, / -u_
s'6g}lts k|ltlglwn] cfˆgf] cf}krfl/s sfo{ eGbf aflx/ s'g} Joj;fo jf Jofkf/ ;DaGwL sfd
u/]sf]af6 p7]sf] d'2f dfldnf . -@_ s'6g}lts k|ltlglwnfO{ ;fIfL aSg s/ nfUg] 5}g . -#_ s'6g}lts
k|ltlglw pk/ pk–bkmf -!_ sf] v08 -s_, -v_ / -u_ cGtu{tsf] d'2f dfldnfdf afx]s c?df km};nfsf]
sfof{Gjogsf] ;DaGwdf s'g} sf/jfxL rnfOg] 5}g / sf/jfxL rnfpg kfpg]df klg s'6g}lts
k|ltlglwsf] JolQmut jf cfjf;sf] cgltqmDotfnfO{ eË ul/g] 5}g . -$_ o; bkmfdf h] ;'s} n]lvPsf]
eP tfklg pko{'Qm clwsf/ If]qaf6 pGd'lQm kfpg] s'6g}lts k|ltlglwnfO{ cfkm"n] rnfPsf]
d'2fdfldnfsf] l;nl;nfdf k|ltjfbLsf] bfjL lhsL/sf] ;DaGwdf To:tf] pGd'lQm x'g] 5}g . _
Exception from immunity: the issue of private international law,
Basic Key points
• A foreign state is not immune as respects any proceedings relating to a
commercial transaction entered into by state
• In the case of contracts of employment, there is no immunity in respect of
proceedings between the state and an individual where the contract is made (place
of the contract)
• In case of patents, trademarks and similar rights belonging to the state,
infringement of those rights as well as copyrights

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 • The state has no immunity in case of proceedings, relating to its interest in other
immovable or movable property by way of succession
• In the case of state, which is a member of a corporate unincorporated body, or
a partnership, which has members other than states and which is incorporated or
constituted under law or has its principal place of business in country.
• There is no immunity as regards proceedings for V.A.T, customs, or rates on
commercial transactions
• There is no jurisdiction if the state has submitted to the jurisdiction of the courts
Six possible Exceptional cases for Immunities: The Conditions where
Jurisdiction may apply for the foreign sovereign
(In the eight edition of the Dicey’s conflict of laws)
• An action in rem against a ship owned or requisitioned by a sovereign by a
sovereign should be stayed even if the ship is used for ordinary commercial
purposes
• Trust funds may be distributed among beneficiaries even if a foreign sovereign is
entitled to an interest therein.
• The foreign sovereign may be made liable if he were himself a trustee.
• No court has held that a foreign sovereign can object to an action against a
company in which he owns a share.
• It is possible that the court might assume jurisdiction to entertain an action against
a foreign sovereign in respect of immovable property situated in England and
owed by him in private capacity.
• The doctrines of waiver may be considered as an exception to the rule.
See: Vienna Convention on Diplomatic Relations, 1961
Vienna Convention on Consular Relations 1963
Diplomatic Privilege and Immunities of the Foreign States and Representatives
Act, 2027 (1970) of Nepal
Section 11. Tax exemption to the Diplomatic Agent: A Diplomatic Agent shall be
exempt from all taxes and dues, personal or real, national, local or municipal
except,
(a) Indirect taxes of a kind which are normally incorporated in the price of goods
or services.
(b) Taxes and dues on private immovable property, situated within the territory
of Nepal, unless he/she holds it on behalf of the Foreign State for the purpose of
the Mission.
(c) Estate (property), succession or inheritance tax (duty) levied to the
Diplomatic Agent. Provided that, in the event of the death of a member of a
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 mission, no tax shall be levied on a movable property of the deceased, except
which is prohibited at the time of his/her death, the presence of which was due
solely to the presence there of the deceased as a member of the Mission or as a
member of the family of a member of the Mission.
(d) Tax on private income to the Diplomatic Agent having its source in Nepal,
(e) Capital tax on the investments made by the Diplomatic Agent in commercial
under takings in Nepal.
(f) Taxes or charges (Fees) levied for specific service rendered,
(g) Court fee, Registration fee, Stamp duty and Record (to get duplicate copy) fee
with respect to the immovable property. -!!= s'6g}lts k|ltlglwnfO{ s/ 5'6 M s'6g}lts
k|ltlglwnfO{ b]xfodf n]lvP afx]s JolQmut jf ;DklQdf nfu]sf] ;a} /fli6«o, • :yfgLo s/ tyf b]o
-8\o"h_ 5'6 x'g]5 M– -s_ ;fwf/0ftof j:t' jf ;]jfsf] df]ndf g} ;dfj]z ul/g] lsl;dsf] ck|ToIf s/,
-v_ lgof]usf] lgldQ ljb]zL /fHosf] tkm{af6 /fv]sf]df afx]s s'6g}lts k|ltlglwsf] g]kfnsf] lghL
crn ;DklQdf nfu]sf] s/ tyf b]o, -u_ s'6g}lts k|ltlglwnfO{ JolQmut ¿kdf nfUg] ;DklQ tyf
pQ/flwsf/ s/, t/ s'g} s'6g}lts k|ltlglw jf lghsf] kl/jf/sf] ;b:osf] pkl:yltsf] sf/0fn] To:tf
JolQmsf] g]kfndf ePsf] lghsf] d[To' x'Fbf lgsf;L ug{ dgfxL eO/x]sf] afx]s c? rn ;DklQsf]
;DaGwdf ;f] s'6g}lts k|ltlglwsf] d[To' ePklg To:tf] s/ nufOg] 5}g . -3_ g]kfndf ePsf] ;|f]tåf/f
s'6g}lts k|ltlglwnfO{ k|fKt lghL cfodf nfUg] s/, -ª_ g]kfndf s'6g}lts k|ltlglwn] s'g} Jofkf/df
nufPsf] k"FhLdf nfUg] s/, -r_ s'g} vf; ;]jf k|bfg ul/P jfkt nfUg] s/ jf b:t'/, / -5_ crn
;DklQsf] ;DaGwdf sf]6{ kmL, /lhi6«]zg b:t'/, l6s6 b:t'/ tyf gSsn b:t'/ ._
Limitations on Jurisdiction
• Foreign immovables
• Foreign intellectual property rights
• Foreign taxes
• The rights and liabilities arising under a foreign penal or other public law
• Discovery of documents outside the jurisdiction

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