DR.

SHAKUNTALA MISRA NATIONAL REHABILITATION

UNIVERSITY, LUCKNOW.
LAW FACULTY

SUBJECT:
PRIVATE INTERNATIONAL LAW

TOPIC:
WHAT JURISDICTION RELATED TO PRIVATE INTERNATIONAL LAW?

SUBMITTED TO: SUBMITTED BY:

Ms. Shipra Dubey Prasoon Kumar

(Faculty of Law) Prateek Pandey
D.S.M.N.R.U, Lucknow. Preeti Singh
Shubham Pal
Jyoti Yadav
B.Com. LLB. (Hons.)
4th Year, 8th Sem.

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 ACKNOWLEDGEMENT

The acknowledgement may go on like this. I would like to express my special thanks
of gratitude to my teacher.

Ms. Shipra Dubey who gave me the golden opportunity to choose and do this
wonderful project on the topic WHAT JURISDICTION RELATED TO PRIVATE
INTERNATIONAL LAW ?, which also helped me in doing a lot of Research and,
I came to know about so many new things I am really thank full to them.

Secondly I would also like to thank my parents and friends who helped me a lot.

I am making this project not only for marks but to also increase my knowledge and
skills.

THANKS TO ALL OF YOU.

PREETI SINGH
PRATEEK PANDEY
SHUBHAM PAL
PRASOON KUMAR
JYOTI YADAV

PRIVATE INTERNATIONAL LAW

 WORKING BIBILIOGRAPHY

The research work and its related material based on many types of sources such as
books, internet, notes. I use the some books of PRIVATE INTERNATIONAL
LAW. These names are –:

o Dr. F. E. Noronha, Universal Law Publication, (Private International Law in

India, Haryana, 2nd ed./2013)
o Jean G. Robert, Private International Law

I use the sum internet websites, these are following:-

https://www.springer.com/cda/content/document/cda.../9789462650312-
c2.pdf
www.lette.ca/docs/default-source/articles/private-international-
law.pdf?sfvrsn
https://unijuris.sites.uu.nl/wp.../The-Concept-of-Jurisdiction-in-
International-Law.pdf

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 TABLE OF CONTENTS

 COVER PAGE

 ACKNOWLEDGEMENT

 TABLE OF CONTENTS

 WORKING BIBILIOGRAPHY

 INTRODUCTION

 INTERNATIONAL TREATIES

 SOURCES

 CONCEPT OF JURISDICTION

 FORMS OF JURISDICTION

 CONCLUSION

 CERTIFICATE

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 INTRODUCTION

Its subject the impact of the rights guaranteed in the European Convention on
Human Rights on private international law. A necessary first step in such a
discussion is an introduction to private international law. It should be understood
from the outset that every country has its own system of private international law.
This also applies to the Contracting Parties to the European Convention on Human
Rights. Moreover, what is exactly understood as private international law even
differs from country to country. While every State has its own national rules on
private international law, many States are also party to international or bilateral
treaties regarding issues of private international law.1

Furthermore, the European Union Member States, which are all also
Contracting Parties to the European Convention on Human Rights, are bound by EU
rules on private international law.

It is, of course, impossible to discuss all the different rules of private

international law in this chapter, or to do justice fully to all the intricacies of private
international law. The aim of this chapter is merely to introduce the general notion
of private international law and some of its particularities to the reader who may be
less familiar with issues of private international law. Additionally, a first foray into
the discussion of the impact of the ECHR on private international law will be offered,
by discussing how private international law has traditionally dealt with fundamental
rights.

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 Private international law (also known as conflict of laws) is an area of the law
that operates whenever a civil dispute involves a foreign element. The key factor that
moves the operation of the private international law is the presence of foreign
element. As Collier provides that foreign element may pertain to a foreign residence,
domicile or nationality; or a place where a legal transaction or a contract has been
entered or performed; or a place where business entity is formed or operates; or an
event where damage is felt or has occurred. As such, it is very important to establish
that there is a foreign element before one talks of the application of private
international law. It is possible that a state can ignore the presence of foreign element
and treat the matter like purely domestic matters. However, leaving aside private
international law would inevitably pose serious trouble on individuals who rely on
foreign law because the act that created their right or privilege have been formed
under foreign law. It may also create difficulties in the enforcement and recognition
of judgment rendered by the forum state as the foreign court (Recognition forum)
may feel that the forum state did injustice by turning away the presence of foreign
element in the matter. Other justifications such as party’s choice (forum selection
clause and choice of law clauses), comity or friendly respect for other states would
also necessitate the application of private international law. Hence, not arguably, the
presence of foreign element in a civil dispute urges the forum state to address the
matter in a ‘special way’ than purely domestic matter.2

Private international law comprises three major subject maters: Jurisdiction

(also known as Judicial Jurisdiction), Choice of Law, and Recognition and
Enforcement of Foreign Judgments. Jurisdiction, the focus of discussion in this case
comment, is the initial issue that addresses whether the forum state can hear and
adjudicate a matter containing foreign element. Often than not, jurisdiction over
cases containing foreign element is determined mainly depending on the degree of

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connections of the matter to the forum state, and other bases of judicial jurisdiction
such as forum selection clauses in international contract.

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 INTERNATIONAL TREATIES

The Hague Conference of Private International Law, an international

organization established in 1893, is the most prominent organization the field of
private international law and as such is responsible for many conventions concerning
issues of private international law. Over the years the Hague Conference has
developed conventions in the areas of international family law, international legal
cooperation and litigation, and international commercial law. It should be noted that
the European Community decided to accede to the Hague Conference of Private
International Law in 2006. In the field of international trade law and arbitration the
United Nations (UN) is an important player.3

In addition to multilateral treaties, there are also many bilateral treaties

between countries in the area of private international law. Such bilateral treaties only
operate between two countries and the precise content of such agreements varies.
One could say with regard to European countries that such bilateral treaties are
generally being replaced by multilateral conventions, but the varying contents of
bilateral agreements preclude them from becoming totally meaningless, as some
aspects of private international law issues between the two countries may fall outside
the scope of the multilateral conventions.4

3
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 SOURCES

Another particularity of private international law is the variety of its sources. Rules
of private international law can be found not only in the national legislation of States,
but also in international treaties and European law. The internationalization (and
Europeanization) of rules of private international law is becoming increasingly more
important for this area of law. For Member States of the EU, for example, the
European legislator is by now the most important legislator in the area of private
international law. This is due to what has been called the ‘Europeanization’ of
private international law. Many rules of private international law have traditionally
also been concluded between different States and laid down in international or
bilateral treaties. Finally, every State also has national legislation on private
international law.

Objectives:-

One of the main reasons for States to have a system of private international
law which will occasionally lead to the assertion of jurisdiction in a case with
international connections, the application of a foreign law, or the recognition and
enforcement of foreign judgments—is the reasonable and legitimate expectations of
the parties. Completely disregarding foreign laws and decisions, or even the
willingness to entertain international cases, would lead to injustices for the parties
involved in such international proceedings.

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 5
Another important objective of private international law is the international
harmony of decisions. This classic goal of private international law was first
introduced by von Savigny. It entails that countries should strive to reach the same
decisions in problems of private international law. This latter objective, however, is
difficult to achieve, as every country is, in principle, free to decide how to deal with
issues of private international law. This does not take anything away from the
importance of this notion. The international harmony of decisions is not an empty
vessel. The taking into account of foreign laws and decisions by States helps avoid
‘limping’ legal relationships, i.e., legal relationships that are recognized in one
country but not in another. One should not lose sight of the fact that rules of private
international law are also in the interest of the (forum) State, as it benefits from
stability with regard to cross-border legal relationships.

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 CONCEPT of JURISDICTION

Law of procedure of every country lays down that in what matters which the
court have jurisdiction. The concept of jurisdiction as exercised by States (or
regional organizations such as the European Union) is concerned. Such jurisdiction
is concerned with the reach of a State’s law: what link, if any, is required for a State
to apply its laws to situations and persons? Jurisdiction is an aspect of a State’s
sovereignty, as the right to prescribe and enforce laws is an essential component of
statehood. In the classic Westphalian understanding, this right has been limited to a
State’s territory, a limitation that at the same time ensures that no State intervenes in
another State’s affairs. This idea is no longer strictly applied, if it ever was.
Exceptions that allow for limited extraterritorial jurisdiction have been carved out,
and, moreover, the territoriality principle has been construed rather liberally. To be
true, some States employ a rather strict presumption that the legislature does not
normally intend to apply its laws extraterritorially, but such a presumption does not
limit the discretion of the legislature to do just that if it so desires.

The overlapping assertions that result from multiple States’ invocation of

permissive principles of jurisdiction may almost unavoidably result in international
friction. This friction may be mitigated by a ‘rule of reason’, which instructs courts
and regulators to balance the interests and connections of the case with the different
States involved. This rule of reason has obvious drawbacks, notably the impropriety
of unelected courts weighing political and economic interests, and the pro-forum
bias which they may exude. Still, when transnational networks of judges and
regulators are established, the ensuing mutual understanding may positively impact
on the application of the rule of reason. It is further proposed in this chapter to infuse
the rule of reason with a subsidiarity dimension: ‘bystander’ States should only

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exercise jurisdiction by default, i.e., where the State with the strongest nexus fails to
assume its regulatory responsibilities to the detriment of the global interest.

PRIVATE INTERNATIONAL LAW

 NATURE OF JURISDICTION

In public international law, the concept of jurisdiction has traditionally had a

strong link with the notion of sovereignty. Jurisdiction allows States to give effect
to the sovereign independence which they are endowed with in a global system of
formally equal States, through stating what the law is relating to persons or activities
in which they have a legal interest. Sovereignty however not only serves as an
enabling concept with respect to the exercise of jurisdiction, but also as a restraining
device: it informs the adoption of international rules restricting the exercise of State
jurisdiction. States may indeed well adopt laws that govern matters that are not
exclusively of domestic concern, and thereby impinge on other States’ sovereignty.
In essence, the laws of jurisdiction delimit the competences between States, and thus
serve as the basic ‘traffic rules’ of the international legal order.6

The law of jurisdiction has mainly relied on the territorial dimension of

sovereignty when devising permissive and prohibitive rules: a State’s jurisdictional
assertions that pertain to acts carried out in its territory are in principle lawful, while
assertions that pertain to acts done outside its territory are suspect, and even
presumptively unlawful. This emphasis on territoriality is a reflection of the
persistent Westphalian bent of the international legal order: a system of territorially
delimited nation-States that have full and exclusive sovereignty over their own
territory, and no sovereignty over other States’ territory. The centrality of
territoriality in the law of jurisdiction need however not be a logical necessity.
Ultimately, territoriality is historically contingent. It rose only to prominence in the
17th century owing to the centralization of administrative power within the State, as

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well as the rise of the science of cartography that allowed for more certain borders
to be drawn. In pre-modern times, sovereignty was conceived of in a more tribal or
community sense: people were subject to the laws of the community or tribe to which
they belonged, rather than those of the territory on which they resided at a given
moment. Community-based conceptions of jurisdiction have recently made a
normative return in the literature, especially in the work of Paul Schiff Berman, who
has drawn attention to individuals’ identification with transnational communities
rather than with territorially-bound States, and who on that ground advocated an
overhaul of the obsolete territory-based jurisdictional scheme. While it is true that
the steady increase in global communication, and especially the explosion of the
Internet has allowed spatially remote individuals to connect, and has restricted the
role of the State, it remains no less true, however, that States have not surrendered
just yet. States continue to consider territoriality as the most straightforward and
certain way of delimiting competences between them. As a result, jurisdictional
analyses remain centered on territorial connections, even where such connections
become increasingly artificial, e.g., in the case of essentially non-territorial
cyberspace, or global climate change.

PRIVATE INTERNATIONAL LAW

 FORMS OF JURISDICTION

In the law of jurisdiction, most attention has been devoted to ‘prescriptive’ or

‘legislative’ jurisdiction. Such jurisdiction refers to the power of a State ‘to make its
law applicable to the activities, relations, or status of persons, or the interests of
persons in things, whether by legislation, by executive act or order, by administrative
rule or regulation, or by determination by a court.’12 Under the principle espoused
by the Permanent Court of International Justice in the 1927 Lotus case, States are in
principle free to exercise prescriptive jurisdiction over a given situation as they
please, unless a prohibitive rule to the contrary could be identified.

The jurisdiction exercised by the judiciary is typically denoted by the terms

‘adjudicative’ or ‘adjudicatory’ jurisdiction, which refer to a State’s jurisdiction ‘to
subject persons or things to the process of its courts or administrative tribunals,
whether in civil or in criminal proceedings, whether or not the state is a party to the
proceedings.’27 Adjudicative jurisdiction thus refers to the jurisdiction of the courts
rather than to the reach of a State’s laws, and pertains to the defendant’s anticipation
of being hauled before the courts of the State in question. As prescriptive and
adjudicative jurisdiction do not coincide, States may have legitimate prescriptive
jurisdiction over a situation on the basis of a permissive principle, but lack
adjudicative jurisdiction, e.g., because the defendant has no contacts with the State,
or because the parties to a private contract have chosen another adjudicative forum.
The principles of adjudicatory jurisdiction have been well-developed in the conflict
of laws (private international law).

In Europe, in civil and commercial matters, adjudicatory jurisdiction is mainly

tied to the place of domicile or residence of the defendant.28 The United States, for

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its part, historically had more liberal rules of adjudicatory jurisdiction. ‘Minimum
contacts’ of the defendant with the forum sufficed for a finding of personal
jurisdiction, and even ‘tag’ jurisdiction, on the basis of the defendant’s transitory
presence in the forum, was accepted. More recently, however, the U.S. Supreme
Court has required that the defendant be essentially ‘at home’ in the forum state,
thereby narrowing the gap with Europe.7

‘Functional jurisdiction’, finally, is a term that is mostly used in the law of the
sea, where, in essence, it refers to coastal States’ limited jurisdiction over the
activities in ‘their’ maritime zones (the territorial sea, the contiguous zone, the
exclusive economic zone, and the continental shelf), and, to a limited extent, to any
State’s jurisdiction over certain activities on the high seas, such as piracy and the
trade in slaves. Such jurisdiction is in the first place geared towards protecting
coastal States’ own legitimate interests, although exceptionally also towards
protecting common concerns. It involves both a prescriptive and an enforcement
component, which do however not necessarily coincide, e.g., the coastal State may
adopt laws and regulations relating to innocent passage through the territorial sea in
respect of a considerable number of activities, but it may only enforce those laws
there (whether criminally or civilly) in limited circumstances.

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 CONCLUSION

We may find that One may be tempted to believe that many jurisdictional
problems will lose their salience as soon as transnational or global governance
problems are adequately dealt with at a multilateral level, e.g., when an international
competition law regime is established, or when the International Civil Aviation
Organization reaches agreement on aviation emissions caps, thereby obviating the
need for unilateral, extraterritorial State action. At a theoretical level, that may well
be true. In practice, however, individual States will continue to play the leading role
in global governance in the face of the elusiveness of relevant multilateral
agreements and centralized institutions. Even in respect of international crimes can
the existing, permanent International Criminal Court only deal with a small number
of atrocity case.8

Accordingly, the unilateral exercise of jurisdiction by States, or regional

organizations, will be there to stay, to ‘recast global problems in local terms’ in
Buxbaum’s words. One cannot deny that such unilateralism may well lead to abuse
by economically and politically powerful States, who may tend to limit foreign
operators’ market access in their own national rather than global interest. In addition,
it could lead to regulatory chaos where numerous States start to exercise jurisdiction
over one and the same situation, thereby increasing transaction costs for
transnational operators. Therefore, a rule of reason may be called for, requiring
States to defer to other States that have a stronger regulatory interest in, or nexus to
the situation. It has been argued in this chapter, however, that such deference should
not be unconditional. It should hinge on the ability and willingness of the most

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interested State to genuinely address the situation in ways that serve the interest of
the international community (even if such ways are not exactly those that the
extraterritorially regulating State had in mind).9

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 CERTIFICATE

The project entitled, WHAT JURISDICTION RELATED TO PRIVATE

INTERNATIONAL LAW Submitted to Faculty of Law of, Dr. Shakuntala Mishra
Rehabilitation University, Lucknow. Related to Subject PRIVATE
INTERNATIONAL LAW, as a part of internal assessment is based on my original
work carried out under the guidance of Ms. SHIPRA DUBEY.

The research work has not be submitted elsewhere for award of any degree. The
material borrowed from other sources and incorporated in the thesis has been duly
acknowledged.

DATE:

(SIGNATURE OF STUDENTS)

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