Jurisdictional

issues
Module II
1. Rules of Jurisdiction In India
2. International Conventions in Jurisdiction
1. Brussels Convention
2. Lugano Convention
3. Codification attempt in Hague Conference
Jurisdictional issues
• In PvtIL, jurisdiction means competency of the domestic courts
of any country to try the suit having the foreign element.
• Jurisdiction is multifaceted concept.
• Quid est in Territorio es estian de territoria
• Rules of jurisdiction determine when a court can hear a case.
• Plaintiff can file a suit in any court with whose territorial jurisdiction
cause of action has wholly or partly arisen.
• It is that court where suit is filed, which has jurisdiction to
decide whether it has jurisdiction to try a suit or not.
 Jurisdictional issues
• International jurisdiction—when a court is precluded from hearing a
case because of international elements.
• Fairness to the claimant and defendant.
• Respect for the rights of other countries must be considered along
with giving the opportunity to bring his claim in some
reasonable court.
Kinds of Jurisdiction in conflict of law
• Courts exercise jurisdiction in
actions relating to interparty
actions relating to property
actions relating to status

• Direct and Indirect

jurisdiction
• Direct jurisdiction:
Consensual, connected and
universal
• Connected: General special
exclusive and protective
Kinds of Jurisdiction in conflict of law
Direct and Indirect jurisdiction
• The issue whether a court has adjudicatory jurisdiction.
• Relevant at two different stages.
• The first stage concerns the proceedings before the court that renders
the original decision(rendering court). To determine jurisdiction to
decide the case(compétence directe)
• The second stage concerns the proceedings before the court
requested to recognize and/or enforce the, hereinafter the requested
court. (compétence indirecte).
Kinds of Jurisdiction in conflict of law
Connected Jurisdiction
• General Jurisdiction is based solely on links between the defendant and
the forum (Rationae Personae)
• it is not necessary for the facts of the claim to have any connection with
the forum.
• “Actor Sequitur forum rei” it requires a claimant to sue where the
property
is to be found.
• The links between the defendant and the forum are very strong.
• Special jurisdiction is based on links between the facts of the claim and
the forum.
• Depends on the subject matter where an obligation was to be
performed
Kinds of Jurisdiction in conflict of law
• Protective Jurisdiction:
Protecting the defendant is the root if the most well established
principle of jurisdiction.
• Exclusive Jurisdiction: if an international convention or any regulation
provides to agree where a case concerns a particular subject matter
the court of one country only adjudicate such case.
• When judgments given in excessive jurisdiction basis, the balance
between claimant and defendant interest is not even which
denies the justice
International Shoe Co. v. Washington
(1945)
• Facts: The plaintiff is the commissioner of the State of Washington, who is responsible
for assessing and contributing to unemployment fund. He filed a notice of the assessment of
the International Shoe co, who is manufacturer and seller of shoe clothing and footwear for
not paying the fund for three years.
• The company is a corporate body of state of Delaware and its main place of business is in
Missouri. Washington sued Defendant after Defendant failed to make contributions to an
unemployment compensation fund exacted by state statutes.
• The Washington statute said that the commissioner could issue personal service if Defendant was
found within the state, or by mailing it to Defendant if Defendant was not in the state.

Issues
1. Whether the state of Washington had the legal authority to exert personal jurisdiction over the
International Shoe Company, despite their lack of physical presence in the state?
1. Whether the exercise of jurisdiction by the state of Washington would violate the International
Shoe Company’s due process rights under the constitution?
International Shoe Co. v. Washington
(1945)
The court ruled that the Corporate party may be Subjected to the jurisdiction of
State court in case if it really has minimal interactions.
• The United States Supreme Court established a new doctrine concerning the
ability of a state to assert personal jurisdiction over a nonresident defendant.
• The Court held that a nonresident defendant must have “minimum contacts”
with the forum state in order for the state to have jurisdiction over the
defendant which replaced the “physical presence” standard, which required a
nonresident defendant to be physically present in the forum state in order for the
state to have jurisdiction over the defendant.
• The Court further elaborated that the “minimum contacts” standard requires that
the defendant must have purposefully availed themselves of the benefits of
the forum state. In other words, the defendant must have established
some deliberate connection with the forum state.
Mbatha Vs. Cutting A20A1303

• The case is dealing with conflict of laws pertaining to

divorce and division of matrimonial property when the
spouses are domiciled in separate jurisdictions.
• The case decided by Georgian Court of Appeal with
respect to competing claims from a couple who married
in New York and had their matrimonial domicile in South
Africa.
• The wife, domiciled in Georgia, USA, argued for the
application of the matrimonial property regime of
South Africa – their only temporary common
matrimonial domicile.
• In determining the applicable law, the Court upheld the
traditional approach, which favours lex situs for real
property and lex domicilii for personal property
Jurisdiction Rules
under English and
Indian laws
When can English courts can
claim Jurisdiction?
• Under English law certain customary practices follow against whom an action can be filed?
• When the defendant is present in that particular territorial limits
• When the courts assumes jurisdiction
• When any act/deed/will/contract/obligation/liability affected with in the said territorial limits.
• Where the relief is sought against the person or corporation domiciled within the territorial limits
of jurisdiction
• Where action for the administration of the estate of a person died domiciled
• Action to enforce/rescind / dissolve annual contract
• Where an injunction is sought within the territorial jurisdiction.
• Action sought on the basis of “Torts”
• Specific legislation
• Where the writ proceeding of the defendant who is outside the territorial limits.
Determination of Jurisdiction in India
• Indian law has generally opposed the application of foreign
judgements on the ground that the foreign forum did not
possess sufficient jurisdiction under the personal law governing
the parties.
• The Indian Succession Act and the Hindu Succession Act only govern
the devolution of immovable property situated in India irrespective
of the domicile of the person who owned the property.
• The Acts extend only to the Indian territory and do not have extra-
territorial application.
• Under the CPC, 1908 any suit for the partition of immovable property
must be filed in the court within whose local jurisdiction the
property is located.
Case Laws
• In Duggamma v. Ganesha Keshayya, it was held that the decision of a foreign court concerning
title to Indian property would be devoid of legal effects.
• Harmindar Singh v. Balbir Singh held that disputes concerning any immovable property have to be
decided not just by the laws of the country where the land is situated, “but also by the courts of
that country.”
• Even if the parties had submitted to the jurisdiction of the foreign court, the foreign verdict
is enforceable only to the extent it applies to property situated outside India.
• In Contrast, the Indian courts have upheld the disposition of overseas family property by
foreign courts.
• Even in cases concerning other matrimonial disputes such as divorce, the Supreme court has held
that the forum must have jurisdiction as per the law under which the parties married.
• For instance, foreign courts have been barred from annulling marriages between Indians.
• The Indian courts generally disfavoured the adjudication of matrimonial disputes by foreign
courts on the ground of lack of jurisdiction.
Law relating to the Jurisdiction in
India
• In India,
• Section 19 and Section 20 of CPC directing the territorial jurisdiction.
• Sec 19: deals with interparty actions includes compensation for the
wrong doing either to person or thing(movable property)
• “Territorial Jurisdiction means where the defendant resided or where
a person carries occupation or personally works for gain within the
local limits of jurisdiction of another court, the suit may be
instituted at the option of the plaintiff in either of the courts.
Determination of Jurisdiction in India
• This section is confined to torts committed in India and to defendant
is residing in India.
• It does not include suits in respect of foreign torts.
• Such cases are covered by Section 20 (Interparty suits)
• Section 20: Every suit shall be instituted in court within the
local limits of whose jurisdiction
• Temporary or permanent residence within the territorial jurisdiction
or cause of action wholly or partly occurred.
• Where the defendant personally works for gain within
such jurisdiction.
Section 19 of CPC
• Where a suit is for compensation for wrong done to the person or to
movable property, if the wrong was done within the local limits of the
jurisdiction of one Court and the defendant resides, or carries on
business, or personally works for gain, within the local limits of the
jurisdiction of another Court, the suit may be instituted at the option
of the plaintiff in either of the said Courts.
• Illustrations
• (a) A, residing in Delhi, beats B in Calcutta. B may sue A either in
Calcutta or in Delhi.
• (b) A, residing in Delhi, publishes in Calcutta statements defamatory
of B. B may sue A either in Calcutta or in Delhi.
Section 20 of CPC
• Subject to the limitations aforesaid, every suit shall be instituted in Court
within the local limits of whose jurisdiction-
• (a) the defendant, or each of the defendants where there are more than
one, at the time of the commencement of the suit, actually and voluntarily
resides, or carries on business, or personally works for gain; or
• (b) any of the defendants, where there are more than one, at the time of
the commencement of the suit actually and voluntarily resides, or carries
on business, or personally works for gain, provided that in such case either
the leave of the Court is given, or the defendants who do not reside, or
carry on business, or personally work for gain, as aforesaid, acquiesce in
such institution; or
• (c) the cause of action, wholly or in part, arises.
 Sec 21 of
• cpc
No objection as to the place of suing shall be allowed by any appellate or
Revisional Court unless such objection was taken in the Court of first instance
at the earliest possible opportunity and in all cases where issues or
settled at or before such settlement, and unless there has been a
consequent failure of justice.
• No objection as to the competence of a Court with reference to the pecuniary
limits of its jurisdiction shall be allowed by any Appellate or Revisional
Court unless such objection was taken in the Court of first instance at the
earliest possible opportunity, and in all cases where issues are settled, at
or before such settlement, and unless there has been a consequent failure
of justice.
• (3) No objection as to the competence of the executing Court with reference to
the local limits of its jurisdiction shall be allowed by any Appellate or Revisional
Court unless such objection was taken in the executing Court at the
earliest possible opportunity, and unless there has been a consequent
failure of justice.
Submission to the jurisdiction
• A party can submit to jurisdiction by an express/implied term
incorporated either in contract or agreement.
• If a person voluntarily appears and submits to the jurisdiction of the court
even if he is outside jurisdiction at the time of issuing summons.
• If the foreigner comes before the court as a plaintiff in case of defendant.
• If the foreigner files an affidavit and appears through the counsel
to argue the case.
• When a foreign defendant moves to set-aside a default judgment and
simultaneous applies for an order that the plaintiff delivers a statement of
claim.
• Carrying on business in India may amount to submission.
Submission to the jurisdiction
• Shalig Ram v. Firm Daulataram Kundanmal (AIR 1967 SC 739)
• It was held that “A person who appears in obedience to the process of
a foreign court and applies for leave to defend the suit
without objecting to the jurisdiction of the court when he is not
compellable by law to do so must be held to be voluntarily
submitted to the jurisdiction of such court
When can court does not
entertain jurisdiction?
• Foreign States Theory of Absolute and Restricted Immunity
In re Christina case
• Diplomatic Representations
• International Organisations and their representatives
Immunity from suits to foreigners in
India
• In private international law, foreign states are immune from being proceeded against in
the national courts of other countries.
• However, there is exception against same under the International Convention against
Torture and other Inhuman or Degrading Treatment or Punishment.
• A “foreign state” means any state outside India recognized by the Central
Government.
• In India, the sovereignty of foreign states is generally recognized.
• Exception is carved out under Section 86 of the Code of Civil Procedure, 1908
• where any person may sue a foreign state in any court with the consent of the Central
Government.
• The provision starts with the general rule, that no foreign state may be sued in any
court, and then carves out the exception of the consent of Central Government by a
Certificate in writing by the Secretary of the State.
• Another exception carved out is that a tenant of an immovable property may sue the
foreign state from which he holds the property.
In re Christina case
• By a decree dated June 28, 1937, the respondents, the Spanish Republican Government,
requisitioned all ships registered at Bilbao.
• A steamship which was registered at that port, and which was not in Spanish territorial waters at
the date of the decree, arrived at Cardiff on July 8, 1937.
• By virtue of the decree the agent of the Spanish Republican Government took possession of the
ship, whereupon the appellants, the owners of the ship, issued a writ against the vessel and
all persons claiming an interest therein whereby the owners sought to obtain possession.
• The respondents claimed immunity from the proceedings and moved to set aside the writ.
• Held, that as the Spanish Republican Government were the only persons claiming an interest in
the ship adverse to the plaintiffs, they were and were intended to be impleaded by the plaintiffs;
that by reason of the requisition the ship was in actual possession of the Re- publican
Government for public purposes; and that the proceedings, which were directed to taking
a Spanish ship out of the possession of the recognized Govemment of Spain, could not
be maintained since to admit such proceedings would be in breach of the established
principles of international law that the courts would not implead a foreign sovereign
without his consent or seize or detain property which was his or of which he was in
possesion or control. Judgment of the Court of Appeal affirmed.
State Immunity Act 1978
held certain principles
• No direct actions can be filed against foreign sovereigns
• Claims with respect to seizure and detaining of property
• No suit can be filed against the agent of foreign State
• No suit can be filed against the department of a foreign State
• Jurisdictional immunity can be claimed when foreign sovereign is not
recognised as Defendant
• 84-87(A) provides procedural formalities regarding filing of case
against Foreign Sovereign
Who can file Suits in Indian
Courts in civil cases having foreign
element?
• In India, the locus standi of suits filed by foreigner and foreign state is
governed by section 83 and 84 of the code of civil procedure.
• A foreigner can sue an Indian in India before a competent court.
• A foreign company can sue an Indian company in India before a competent
court.
• An alien enemy can defend a suit.
• A foreign State may sue an Indian person in India for the private wrong.
• A foreigner can sued in India before a competent court.
When can a Government may give
permission to sue foreign State?
• If the foreign State has instituted a suit in the court against the
applicant.
• If the foreign state, by itself or another, trades within the local limits
of the Indian court.
• If the foreign state’s immovable property, in respect of which the
applicant want to sue is situated in India.
• If the foreign state has waived privilege of Section 86.
• The bar in the section is not only against suing, but also against
execution of any decree against the property of a foreign state.
Waiver of Privilege
• It is recognised by the Indian courts that permission from central government may not be required in every
case as there may waiver of privilege by foreign state-owned entities either expressely or implied.
• In the case of Ethiopian Airlines vs. Ganesh Narain Saboo the Hon’ble Supreme Court of India observed
that under specific statutes there may be a waiver of foreign state immunity as it was found that the
Consumer Protection Act, 1986 and the Carriage by Air Act, 1972 being specific statutes would supersede
the general statute of Code of Civil Procedure, 1908.
• The Court held that Carriage by Air Act, 1972 was passed to give effect to the Warsaw Convention, 1929, to
which Ethiopia is also a party. In effect reading of the Warsaw Convention, 1929 and the Carriage by Air Act,
1972 makes it evident that these provisions apply to Airlines of any nationality.
• With such reasoning the Hon’ble Supreme Court made it clear that the implication of the Convention and
the Act were as below:-
• The Central government had already given consent under Section 86 by having enacted the Carriage by Air
Act, 1972.
• The Foreign State of Ethiopia had impliedly waived privilege by signing the Warsaw Convention, 1929.
Other
Internationa
l1. Brussels Convention
International Conventions in Jurisdiction

conventions
2. Lugano Convention
Multilateral and Unilateral International
Jurisdictions
• Multilateral jurisdiction • Unilateral instruments
• Determines the relations among a number of • Applies in one country only :
different countries all of which have adopted the • It determines when the courts of that country have
instrument.
jurisdiction and when judgments from other
• There should be a common court to interpret the countries will be recognized and enforced in that
instrument. country.
• It decide when persons from those countries will • It does not decide when persons from that country
be subject to the jurisdiction of the courts of other will be subject to the jurisdiction of the courts of
countries, or when judgments from that country other countries, or when judgments from that
will be recognized and enforced in other countries. country will be recognized and enforced in other
• The Brussels instruments fall into this category : countries.
• The effect of unilateral instruments are
• They are law in all the Member States, and often rather one-sided.
• the Court of Justice of the European Union • The jurisdictional rules are laid down in their own
(“CJEU”) has jurisdiction to interpret them. and courts, there is a tendency to extend.
• the rules for the recognition and enforcement of
judgments do not apply to their own judgments
Need for Unification of Private
international law
• Unification of internal laws of countries of the world
• Unification of rule of private international law
• Bern convention of 1886 which CREATED an international union for
the protection of the rights of authors over their literary and
artistic works was formed.
• After first world war an institution of for the unification of private law
was established in Rome. The Warsaw conventions of 1929 which
has been amended by the Hague Convention of 1955.
• The convention provides for uniform rules relating to carriage of
goods and persons by air.
Need for Unification of Private
international law
• Statutory provisions have extended the courts' powers when the
defendant is outside the jurisdiction.
• In deciding whether to exercise that discretion, the courts are able to
take into account a number of considerations, including
the appropriateness of England as the forum
The Brussels
Convention and its
Successor
Instruments
The Brussels Convention 1968
• The Convention was adopted on 27 september 1968.
• Fifty years have passed
• The Convention have its successor instruments —
the revised versions of the Convention,
the Brussels I Regulation of 2000 2 and
the Brussels I Regulation of 2012 3
(“Brussels 2012”).
Application of Brussels Convention in determining
jurisdiction
• The scope of the convention (civil or commercial) matter.
• Defendant is domiciled in a European Community State(any of 27
countries).
• Even if defendant is not domiciled certain provisions of Convention will
apply (Agreement conferring jurisdiction on contracting parties)
• Jurisdiction under the convention depends on a specified connection with
the forum. (domicile of defendant).
• If a contracting state is allocating jurisdiction, the courts of that States have
no discretion to take jurisdiction on the ground of domicile at least not in
cases where the alternative forum is in another contracting state
Bases of Jurisdiction and
recognition and enforcement
• The defendant is domiciled is subjected to the jurisdiction of that
State
• If the defendant is to be sued in the courts of a country, other than
that of its domicile country, this can be done only by the virtue of
determining jurisdiction.
• The national Courts are not to apply traditional rules
for determining the jurisdiction and cause of action
Bases of Jurisdiction and
recognition and enforcement
• If the defendant is domiciled in another Member State, the same
rules apply to determine both issues whether a court of a
Member State has jurisdiction as well as whether the judgment
of that court will be recognized and enforced in other Member
States.
• The Brussels instruments is not allowed courts of member state to
determine for itself whether the court of origin actually
had jurisdiction under the rules of EU instrument. It must trust that
court.
General Jurisdiction
• In the EU, the criterion for general jurisdiction is the domicile of the
defendant and Nationality is irrelevant.
• In the case of a natural person (individual), domicile is determined by
the law of the Member State in which it is claimed that the person
is domiciled.
• In the case of companies and other legal persons, there is a uniform
(EU-law) concept of domicile statutory seat, its central
administration or its principal place of business
Special Jurisdiction Art 5
• A person domiciled in a Contracting State may be sued in another Contracting State

[Link] matters relating to a contract, in the courts for the place of performance of
the obligation in question;
[Link] matters relating to maintenance, in the courts for the place where the
maintenance creditor is domiciled or habitually resident;
[Link] matters relating to tort, delict or quasi-delict, in the courts for the place where
the harmful event occurred;
4.a civil claim for damages or restitution which is based on an act giving rise to
criminal proceedings, in the court seized of those proceedings, to the extent that that
court has jurisdiction under its own law to entertain civil proceedings;
5 dispute arising out of the operations of a branch, agency or other establishment, in the
courts for the place in which the branch, agency or other establishment is situated.
Exclusive Jurisdiction
• In disputes concerning the in land and tendencies in land, exclusive jurisdiction
is held by courts where ownership of and rights the land is situated.
• In disputes concerning the validity of the constitution, the nullity or the
dissolution of legal persons or their decisions, exclusive jurisdiction is held
by courts where the legal person has its seat as determined by the rules of
private international law.
• In disputes concerning the validity of entries in public registers, exclusive
jurisdiction is held by the courts of the member state in which the register
is kept.
• In disputes concerning the registration or validity of patents, trade marks,
designs, or other registrable rights, the courts of the member state in which the
registration has been applied for or registered.
• In disputes concerning the enforcement of judgments, the courts of the member
state in which the judgment has been or is to be enforced
Exclusion of Jurisdiction under
Brussels Convention
The Convention shall not apply to:
1. Civil Matters
• the Status or legal capacity of natural persons,
• rights in property arising out of a matrimonial relationship,
• wills and succession;
2. bankruptcy,
proceedings relating to the winding-up of insolvent companies or other legal persons,
judicial arrangements,
compositions and analogous proceedings;
3. social security;
4. arbitration.
Lugano Convention
The Lugano Convention is a multilateral treaty.
Concluded between the EU and three out of the four members of the EFTA
(Switzerland, Norway and Iceland).
It provides a framework similar to the Brussels Regulation with a regime to
govern the allocation of jurisdiction and enforcement of judgments in cross-
border civil and commercial disputes.
The Lugano Convention allows parties to litigation to have judgments
recognised and enforced in the national courts of its members.
It applies to EU or EFTA domiciled defendants can only sued outside of their
home state in very limited circumstances.
If Parties chose to submit to the exclusive jurisdiction of one national court of
a member, other members’ national courts are typically required to accept
it for meeting certainty.
Belgium v. Switzerland on the
Interpretation and Application of the
Lugano Convention
• Belgium initiated by
proceedings in the ICJ ICJ
against Swizterland in a dispute raising issues of
private international law and of the relationship between public international law
and
private international law.
• Facts: On December 2009, Belgium initiated proceedings against Switzerland in respect of a dispute
concerning the
interpretation and application of the Lugano Convention on jurisdiction and the enforcement of
judgments in civil and commercial matters before ICJ.
• With respect to dispute concerning the alleged misconduct of the Swiss shareholders in Sabena,
the former Belgian airline now in bankruptcy.
• The Swiss shareholders SAirgroup (formerly Swissair) and its subsidiary SAirLines, also now in
bankruptcy, and the
Belgian shareholders in Sabena entered contract agreement for financing and joint management
of Sabena.
• These contracts provided for the exclusive jurisdiction of the Brussels courts and for the
application of Belgian Law.
• Proceedings were first initiated by the Belgian Shareholders before the Brussels courts for
contractual liability and tort.
• The Brussels Court found its jurisdiction on the basis of art. 17 and 5(3) of the Lugano Convention
but rejected the claims for damages brought by the Belgian shareholders.
• The Court of Appeal of Brussels by a partial judgment upheld the Belgian court’s jurisdiction over
the dispute.
Belgium v. Switzerland on the
Interpretation and Application of the
Lugano Convention by ICJ
• In the mean time, the Swiss shareholders submitted to the
Zurich courts an application for a debt-restructuring moratorium
In a decision rendered on 30 September 2008, the Swiss Federal
Court rejected the
application of the Lugano Convention on this
matter and declined to stay its
proceedings on the basis that the Swiss courts had exclusive jurisdiction
because of the territoriality principle and the procedural nature of the
dispute.
• According to Belgium, the refusal by the Swiss Courts and more
particularly the
Federal Supreme Court to apply the Lugano Convention and
consequently the
refusal to recognize the future Belgian decision and to stay
their
proceedings, violate various provisions ofthe Lugano Convention
and
“the rules of general internationallaw that govern the exercise
of State authority, in particular in the judicial domain”.