POSITIONS IN THE US, ENGLAND AND EUROPE, INDIA

Amit Sachdeva proposes for an objective yet flexible inter-governmental treaty to govern the
jurisdictional aspects. However, before that, he discusses the traditional positions in certain
jurisdictions which the courts have been using:

POSITION IN THE US
Overview of Personal Jurisdiction:
Courts must establish a significant connection between the defendant, the plaintiff, or the
subject matter (res) and the forum (the state or jurisdiction in which the court sits). The concept
of personal jurisdiction has evolved over time due to societal changes and technological
advancements. Two main bases for a US court to exercise jurisdiction: territoriality and
jurisdiction over out-of-state defendants:
(A) Territoriality:

Physical presence within a state's borders establishes a basis for personal jurisdiction.
Even brief physical presence suffices for jurisdiction. Constitutional due process is
satisfied when the defendant is physically present in the forum state.
(B) Jurisdiction over Out-of-State Defendants:
Courts can exercise jurisdiction over out-of-state defendants if two conditions are
fulfilled (i) presence of a statutory authority granting power and, (ii) fulfilment of
constitutional due process. The court must determine if there is a legislative grant of
authority allowing jurisdiction over the defendant. The due process clause of the
Constitution limits the exercise of personal jurisdiction over non-residents. The court's
authority may be based on federal or state statutes or long-arm statutes. The exercise of
jurisdiction must comply with constitutional limitations, including the requirement of
minimum contacts.
These principles were enough for the 19th century, but in the middle of 20th century, the courts
relaxed the rule to include “virtual presence” also.
Minimum Contacts Test:
Introduced in International Shoe v. Washington, the minimum contacts test requires that
defendants have sufficient connections with the forum state. Courts must consider both the
quantity and nature of the defendant's contacts with the state and their relation to the claims. A
caveat of ‘Reasonable Anticipation’ was added to the Minimum Contacts Test in the case of
Cybershell Inc. vs Cybershell. The defendant must have purposefully availed themselves of
conducting business in the forum state, and the exercise of jurisdiction must be reasonable.
Foreseeability of being haled into court in the forum state is crucial.
Effects Cases:
Jurisdiction may be based on the principle that the defendant knew their actions would harm
the plaintiff, making it reasonable to anticipate being sued in the jurisdiction where the injury
occurred.
Summary of ‘Minimum Contacts’ Based Jurisdiction in the US:

• there must be ‘‘some act by which the defendant purposefully avails [itself] of the
privilege of conducting activities with the forum state’’;
• the plaintiff must show ‘‘either that the defendant’s contacts with the forum are
continuous and systematic, or that the suit arises out of or is related to those contacts’’;
• the defendant’s conduct and connection with the forum state must be such that ‘‘he
should reasonably anticipate being haled into court there’’; and
• the exercise of personal jurisdiction must be ‘‘reasonable’’.
Personal Jurisdiction in Cyberspace:
US courts adapt traditional jurisdiction principles to cases involving the internet. The nature
and quality of commercial activity over the internet determine the likelihood of personal
jurisdiction. Courts categorize internet activities into active websites, websites permitting
exchange of information, and passive websites. Jurisdiction over internet activities is
determined by the level of interactivity and commercial nature of the exchange of information.
A sliding scale test measures the degree of interactivity of the website. Courts balance the
requirement of minimum contacts and reasonableness against the universality of web access.

Judicial Decisions:
1. International Shoe v. Washington: Established the minimum contacts test for personal
jurisdiction.
2. Pennoyer v. Neff: Introduced the concept that due process constrains states' exercise of
personal jurisdiction over non-residents.
3. Insect Systems case: Example of a case where specific jurisdiction was assumed by the
court, contrary to the generally accepted position in the United States regarding passive
websites.

POSITION IN ENGLAND AND EUROPE

Traditional Rules in England:
1. Basis of Adjudicative Jurisdiction: The traditional English rules for personal
jurisdiction adhere to territoriality.
2. Two Sets of Rules: There are two distinct sets of rules governing jurisdiction in English
courts:
(A) Traditional Rules: Still applicable in many cases.
(B) Convention Rules: Replacing traditional rules in a growing number of cases.
 3. Criteria for Jurisdiction: Under traditional rules, an English court may exercise
jurisdiction when:
(C) The defendant is present within England and served with the writ.
(D) The defendant submits to the court's jurisdiction.
(E) The defendant is served with the writ outside England at the court's discretion.
4. Shift in Approach: Previously, jurisdiction was based on factors like location of assets,
nationality, or presence of the defendant. Now, mere presence within England, even for
a short period, makes a person liable to the court's jurisdiction.
5. Substituted Service: The court may allow substituted service in certain cases.
The Brussels (I) Regulation:
1. Background: The traditional jurisdiction rules underwent substantial modification
with the implementation of the EC Treaty.
2. Regulation 44/2001: This Regulation, effective from March 1, 2002, governs
international jurisdiction within EC Member States. It replaced the Brussels
Convention.
3. Aim: The Regulation aims to provide clear and predictable rules to ensure freedom,
security, justice, and the functioning of the internal market.
4. Domicile Jurisdiction: The general rule is jurisdiction based on the defendant's
domicile. However, exceptions exist under Arts 3 to 7.
5. Special Jurisdiction for Consumers: The Regulation provides flexible jurisdiction
rules favoring weaker parties, particularly in consumer contracts.
6. Additional Jurisdiction Rules: Art.5 provides special jurisdiction rules for contracts
and torts based on the place of performance or occurrence of the harmful event.
7. Choice of Court Clause: The Regulation recognizes party autonomy in choosing a
court. However, a lis pendens provision exists, barring other courts from assuming
jurisdiction once proceedings are initiated.
8. Precedence of Lis Pendens: The European Court of Justice (ECJ) gave precedence to
lis pendens over choice of court agreements, emphasizing the mandatory nature of
Art.2 of the Regulation.
Personal Jurisdiction in Cyberspace:
1. Limited Cases: England has seen limited cases regarding jurisdiction in cyberspace,
primarily involving defamation and cybercrimes.
2. Basis for Jurisdiction: English courts assert jurisdiction based on the publication of
defamatory material within their jurisdiction, as it constitutes the place where the
harmful event occurred.
3. Publication in Cyberspace: Material published on the internet can lead to multiple
causes of action in various jurisdictions, raising the possibility of forum non
conveniens.
4. Contracts in Cyberspace: Contracts entered into through cyberspace are likely to be
treated similarly to traditional contracts, with little reason for a more favorable
treatment under current legal trends.
 5. ECJ's Stance: The ECJ's objective of European harmonization suggests that any
treatment of e-contracts should align with existing regulations, rather than offering
preferential treatment for technological advancements.
6. Implications: Allowing a more flexible jurisdiction regime for e-contracts may lead to
parties circumventing the Regulation's spirit, merely by opting for cyberspace as the
contracting "place."

POSITION IN INDIA
Principle of Lex Fori:
1. India adheres to the principle of lex fori, where the law of the forum governing all matters
of procedure.
2. Ramanathan Chettier v Soma Sunderam Chettier established that Indian legal
proceedings are governed by the law of the forum where they are instituted.

Jurisdiction under the Code of Civil Procedure 1908:

1. The Code does not provide separate rules for international private disputes regarding
personal jurisdiction.
2. Territorial jurisdiction is addressed under Sections 16 to 20 of the Code, covering pecuniary
limits, subject matter, and territory.

Rules Based on Nature of Suit:

- Suits are categorized into three classes:
1. Suits concerning immovable property must be filed within the local limits where the
property is situated.
2. Suits for wrongs to persons or movable property may be instituted where the wrong
occurred or the defendant resides, carries on business, or personally works for gain.
3. Suits of any other kind fall under Section 20, which provides for jurisdiction based on
defendant's residence, business, or the cause of action.

Rules Enforcing Agreement of Parties:

1. Indian law recognizes and gives effect to agreements between parties to confer
jurisdiction on one court to the exclusion of others.
2. However, party autonomy is subject to limitations, and courts consider factors like the
balance of convenience and interests of justice.
Personal Jurisdiction in Cyberspace:
1. Limited cases have been decided regarding personal jurisdiction in cyberspace by Indian
superior courts.
2. Indian courts apply a minimum contacts approach similar to that of the United States,
coupled with the proximity test of the Code.
3. The Indian legal system tends to modify domestic rules to suit international situations.
i) Case I: If the contract contains a choice of court clause, Indian courts typically
honor it, subject to considerations of forum non conveniens.
ii) Case II: If the contract does not stipulate an agreed forum, Indian courts apply
Section 20 of the CPC, considering factors such as defendant's domicile and
proximity of cause of action.
4. In e-contracts, determining the place of conclusion of the contract may not be
straightforward due to complexities in communication of offer, acceptance, and revocation.
5. Indian courts do not decline jurisdiction solely because a contract is entered into through
the internet. They examine factors like defendant's domicile and proximity to cause of
action.
6. However, the plaintiff must demonstrate that courts elsewhere do not have a better basis of
jurisdiction, as Indian courts may analyze jurisdiction from the standpoint of forum non
conveniens and anti-suit injunctions.

Judicial Decisions and Holdings:

1. Ramanathan Chettier v Soma Sunderam Chettier: India accepts the principle of lex fori,
where the law of the forum governing all matters of procedure. The law of the forum in which
legal proceedings are instituted governs all matters of procedure.
2. Bhagwan Dass Case: The place of conclusion of the contract is relevant for determining
jurisdiction. However, in cases of e-contracts, determining the place of conclusion may be
challenging due to complexities in communication of offer, acceptance, and revocation.