Private International Law

CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW AND GOVERNANCE

TOPIC:

“Kinds of jurisdiction under private international law”

Submitted by:

Under the Supervision of:

Shivam Saket

Dr. Ajay Kumar Barnwal

CUSB1513125043

Assistant Prof. S.L.G. CUSB

(B.A.LLB., 9th SEM.)

1

CONTENT

SR.

TITLE

PAGE NO.

1.

Introduction

4

2.

History of Private International Law

5-6

3.

Development in England

7

4.

Evolution of Private International Law in India

7

5.

Concept of jurisdiction in Private international Law

8

6.

Meaning and Definition of Jurisdiction

9

7.

Types of Jurisdiction

10-11

8.

Kinds of Jurisdiction in Private International Law

11-13

9.

Rationale behind concept of jurisdiction

13-14

10.

Conclusion

15

11.

Bibliography

16

NO.

2

ACKNOWLEDGEMENT An enterprise of such a magnitude as this research on the topic “Kinds of jurisdiction under

private international law” could only fructify in such a short span of time due to the coalescing of able guidance and support of many learned and able persons, whose efforts and cooperation, I as the researcher, with a sense of gratitude, being duty bound too, acknowledge in no particular order. My deepest gratitude and thanks to the Hon’ble Prof. Dr. Ajay Kumar Barnwal, Asst. Professor, Central University of South Bihar, an eminent professor and scholar gave enough time and space for free exchange of ideas and, opinions greatly benefiting me in augmentation and critiquing of many of the opinions which find their place in this work. Despite the busy schedule and onerous academic responsibilities, he gave me ample time whenever he was approached for his invaluable guidance. I am highly indebted to the library staff to help me find the relevant books and journals, and other officials and office staffs, who have also extended their help whenever needed. I would like to extend my sincere thanks to all of my friends for their review and honest remarks. Last, but not the least my eternal gratitude is due, to my loving Parents whose constant unflinching support, blessings and encouragement both, temporal and emotional support, to meet any challenge with confidence including, of this purposive academic exercise.

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INTRODUCTION The term ‘Private International Law’ was coined by American lawyer and judge, Joseph Story, but was abandoned subsequently by common law scholars and embraced by Civil law lawyers.1 Private International Law or the conflict of laws is that branch of legal service, which is applied when two or more sets of legal systems are in conflict with each other over a given issue. It is a set of procedural rules that determines which legal system and which jurisdiction apply to a given dispute. Its three different names like conflict of laws, private international law, and international private law, are generally interchangeable, although none of them is wholly accurate or properly descriptive. The term conflict of laws is primarily used in jurisdictions of the Common Law legal tradition, such as in the United States, England, Canada, and Australia. Private international law (droit international prive2) is used in France, as well as in Italy, Greece, and the Spanish and Portuguese-speaking countries. International private law (internationals Privatrecht) is used in Germany (as well as Austria, Liechtenstein and Switzerland), Russia and Scotland. Within the federal systems where legal conflicts among federal states require resolution3. As in the United States and Australia, the term conflict of laws is preferred simply because such cases do not involve an international issue. Hence, conflict of laws is a general term to refer to disparities among laws, regardless of whether the relevant legal systems are international or inter-state. The term, however, can be misleading when it refers to resolution of conflicts between competing systems rather than "conflict" itself. Jurisdiction is an important factor for all justice delivery system, irrespective of geographical position. Jurisdiction limits the power of the Courts, however it also can be said that jurisdiction gives power to courts subject to jurisdiction. The concept of jurisdiction in private international law can be explained by convergence and cross functionality of question of law in a state.

1 Available at : www.wikipedia.com (last visited on Nov, 7, 2019). 2 3

Ibid Ibid

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History of Private International Law Till 12th Century there was nothing like Private International Law. It was only in 12th Century that the concept of private International Law began to emerge. The first instance of private International Law was traced to Greece. The Greeks dealt straight forward with multistate problems and did not create choice of law rules. Leading solutions varied between the creation of courts for international cases, and application of local law, on the grounds that it was equally available to citizens of all states4. It is the Roman law which witnessed the significant development of private International Law. No comprehensive system of private international law was developed in the Ancient Rome. Complete body of rules was developed for the Roman Citizens. The Roman Citizens were subject to Jus Civile and only applied where the dispute was between the citizens of the Romans. Whereas, the non-citizens were subject to a distinct body of law called the Jus gentium the law of the nations. Special tribunal was created to deal with the cases of noncitizens. The special officer to deal with any dispute in Rome involving a foreigner, even where the other party was a citizen of the Rome was called Peregrine praetors5. The Peregrine praetor did not select a jurisdiction whose rules of law should apply. Instead they applied the ‘Jus gentium’ based on an amalgamation of Roman and foreign law, particularly the Greek Law6. Thus the Peregrine praetors, created a new substantive law for each case, which is today the field of private international law known as a “substantive” solution to the choice of law issues.7 After the fall of Roman Empire, the territorial law of Rome was replaced by the personal law for 6th to 10th Century. Thus a Saxon was governed by Saxon law and Sabian was governed by Sabian law. It was 13th century which witnessed the emergence of rules of private international law. With the development of trade and commerce in the Northern Italy in the 13th Century, it was felt to refine the system of law which could adjudicate issues involving commercial transactions between traders belonging to different cities. The solution to solve

4

Ibid

5

Reid Mortensen, Richard Garnett and Mary Keyes, Private International Law in Australia 8 (LexisNexis

Butterworths, Australia, 2nd edn., 2011). 6

Available at : www.wikipedia.com. (last visited on Oct 15, 2019).

7

Supra note 4

5

the problems arising between parties to trade and commerce was the rules of Roman law known as Glossators. According to this theory law can be divided into two categories8  

Real statute and Personal statue.

The main purpose of real statute is to regulate things and the purpose of personal statute is to deal about personal matters. Real statutes were considered essentially as territorial while personal statutes were personal. The law of person would be applicable unless such personal law was opposed to the “Public Order” of the city. Bartolus was a great scholar amongst other during this period. However, this theory was not perfect as classification of ‘real’ and ‘personal’ was not unanimous amongst cities and the definition of ‘public order’ was not clear9. The reformation and rise of nationalism in the 16th Century decentralized political power in northern Europe, and municipal laws began to displace the supranational Roman and Canon Laws, Territorial law began to be widely accepted.

In the 19th Century the German jurist Friedrich Carl Van Savigny, propagated a new theory related to private international law. According to him, the object of Private International law is to establish the co-relation of a legal relationship with some territorial law. According to him every legal relationship must belong to some law and therefore the object of private international law is to find out the ‘seat’ of every legal relationship10. In the event there being a conflict between the territorial law and the law of the place to which legal relationship belongs, the latter should be applied.

8

Paras Diwan and Peeyushi Diwan, Private International Law Indian and English 54 (Deep & Deep

Publications, New Delhi, 14th edn., 1998). 9

SM Masuin Billah, “Origin and Development of Private International law”, available at: www.academia.edu (

last visited on Nov. 15, 2019). 10

www.academia.edu ( last visited on Nov., 15, 2019).

6

Development in England The conflict of laws has been of comparatively recent origin in England. Only a few traces can be traced back in the 17th Century. It was the 18th Century when the subject of conflict of laws was highlighted and gained prominence in England and Scotland. The 19th Century rapid growth of trade and commerce between England and the Continental Europe and British territories in foreign countries accelerated the growth of conflict of law rules11.The 18th Century was termed as the ‘embryonic’ period of private international law, a period which extended to at least the middle of the 19th century12. In the 19th Century the rapid growth of population, world wars and development in the means of communication further accelerated the growth of conflict of law Rules in England. It has not been easy for the conflict of laws to adapt itself to the changes in 20th Century in the social and commercial life which the 20th century has witnessed. Many of the 20th century rules were first laid down in the 19th century13.

Evolution of Private International Law in India Since India comprised of many states having distinct culture and religion, there has been conflict of personal laws in India during the British Law, as different laws were applicable on the people belonging to different religion. The judgment pronounced by the courts of princely states was considered as foreign judgments in the court system of British India. Hence, there was interstate conflict of laws prevalent during the British period. Even during the British period when the Indian traders traded outside India there were cases of commercial litigation having foreign element in it before the Indian courts. Since, India was a colony to the British, it applied almost all the rules of Britishers relating to Private International Law14. However, the irony of the situation is that, each after so many years of independence, the Indian legislation has failed to enact proper legislation in the field of private international law.

11

Lawrence Collins, Dicey and Morris on The Conflict of Laws 6 (Stevens & Sons Limited, London, 11th edn., 1987). 12 Ibid 13 Supra note 15 14 Supra note 14

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Concept of Jurisdiction in Private International Law The jurisdiction of courts is at stake, we must distinguish what can be called international jurisdiction on the one hand from subject-matter jurisdiction on the other hand, international jurisdiction encompasses personal jurisdiction and jurisdiction in rem. Personal jurisdiction is jurisdiction over a person, most importantly over a defendant. Jurisdiction in rem was once understood to be jurisdiction over a thing based on its presence in the court’s territory. Today, in rem jurisdiction is also understood ultimately to be jurisdiction over a person, the presence of the thing merely provides the basis for the jurisdiction. Subject matter jurisdiction on the other hand is, in principle, not about international jurisdiction. Instead, it determines the subject matters about which a court is entitled to adjudicate. Nonetheless, subject matter jurisdiction can determine international limits of jurisdiction as well. This is the case, for example, when US federal courts derive their subject matter jurisdiction from the applicability of a federal statute (so-called federal question jurisdiction). In this case, courts have sometimes translated the territorial limits of the applicable federal statute into subject matter jurisdiction limits of the court. The US Supreme Court has recently suggested, however, that this should be treated as a question of substance (Morrison v National Australia Bank15). The issue whether a court has adjudicatory jurisdiction can become relevant at two very different stages in an international litigation. The first stage concerns the proceedings before the court that renders the decision, hereinafter called the rendering court. The rendering court will not hear a case, much less render a decision, unless it determines that it has jurisdiction to do so. If it renders a decision despite the lack of jurisdiction, an appellate court may declare the decision void. The second stage concerns the proceedings before the court, often in a different state, requested to recognize and/or enforce the rendering court’s decision, hereinafter the requested court (Recognition and enforcement of judgments). The requested court will not recognize or enforce the decision of the rendering court unless it determines that the rendering court had jurisdiction. Although they are sometimes treated as though they were similar, the issue of jurisdiction as a requirement for adjudication is analytically different from the issue of jurisdiction as a requirement for recognition. The first is governed by the law of the rendering state, the second by the law of the requested court. Neither the rendering court, nor the recognizing court, is necessarily bound to the standards of the other. In French law, the first is called direct jurisdiction, the second indirect jurisdiction.

15

Morrison v National Australia Bank, 561 U.S. 247, 254 (2010)

8

Meaning and Definition of Jurisdiction Jurisdiction (from the Latin ius, iuris meaning "law" and dicere meaning "to speak") is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility16. The term is also used to denote the geographical area or subject-matter to which such authority applies. Jurisdiction draws its substance from public international law, conflict of laws, constitutional law and the powers of the executive and legislative branches of government to allocate resources to best serve the needs of its native society. Literal meaning of jurisdiction is “the extent of the power to make legal decisions and judgements.” Whereas legal definition varies from state to state and law to law. Jurisdiction can be defined as the limit of a judicial authority or the extent to which a court of law can exercise its authority over suits, cases, appeals etc. The rationale behind introducing the concept of jurisdiction in law is that a court should be able to try and adjudicate only in those matters with which it has some connection or which fall within the geographical or political or pecuniary limits of its authority. However meaning of meaning of Jurisdiction changes state by state. 

Indian Approch

In 1921 Calcutta High Court judgment in the case of Hriday Nath Roy v. Ram Chandra17 explained the meaning of the term ‘jurisdiction’ in a detail. The bench observed: ‘An examination of the cases in the books discloses numerous attempts to define the term ‘jurisdiction’, which has been stated to be ‘the power to hear and determine issues of law and fact;’ ‘the authority by which three judicial officers take cognizance of and decide cause;’ ‘the authority to hear and decide a legal controversy;’ ‘the power to hear and determine the subject-matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them; ’‘the power to hear, determine and pronounce judgment on the issues before the Court;’ ‘the power or authority which is conferred upon a Court by the Legislature to hear and determine causes between parties and to carry the judgments into effect;’ ‘the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution.’

16 17

(Available at) http://www.legalservicesindia.com/article/508/Jurisdiction last visited on Nov., 1,2019 Hridy Nath Roy V. Ramchandra AIR 1921 Cal 34

9

Types of Jurisdiction In India, there are mainly 5 types of jurisdiction which can be classified as follows: 

Subject-matter jurisdiction:

It can be defined as the authority vested in a court of law to try and hear cases of a particular type and pertaining to a particular subject matter. For example, District Forums established under the Consumer Protection Act, 1986 have jurisdiction over only consumer-related cases. It cannot try criminal cases. 

Territorial jurisdiction:

Under this type of jurisdiction, geographical limits of a court’s authority are clearly delineated and specified. It cannot exercise authority beyond that territorial/geographical limit. For example, if a certain offence is committed in Madhya Pradesh, only the courts of law within the boundaries of Madhya Pradesh can try and adjudicate upon the same unless otherwise provided for in a particular piece of legislation. 

Pecuniary jurisdiction:

Pecuniary means ‘related to money’. Pecuniary jurisdiction tries to address whether a court of law can try cases and suits of the monitory value/amount of the case or suit in question. For example, consumer courts have different pecuniary jurisdictions. A district forum can try cases of value upto twenty lakh rupees only. 

Original jurisdiction:

It refers to the authority of a court to take cognizance of cases which can be tried and adjudicated upon in those courts in the first instance itself. It is different from appellate jurisdiction in the sense that in case of the latter, the courts rehear and review an already decided matter whereas in case of the former the cases are tried for the very first time. For example, the High Court of Allahabad has original jurisdiction with respect to matrimonial, testamentary, probate and company matters. 

Appellate jurisdiction:

It refers to the authority of a court to rehear or review a case that has already been decided by a lower court. Appellate jurisdiction is generally vested in higher courts. In India, both the High Courts and the Supreme Court have appellate jurisdiction to hear matters which are brought in the form of appeal before them. They can either overrule the judgment of the lower court or uphold it. At times they can also modify the sentence.

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Some of the other types of jurisdiction include: 

 



Concurrent jurisdiction: A situation in which more than one court of law has the jurisdiction to try certain matters. Sometimes, this type of jurisdiction is also referred to as ‘co-ordinate jurisdiction’. Admirality jurisdiction: Jurisdiction pertaining to mercantile and maritime law and cases. Probate jurisdiction: Matters concerning the administration of an estate belonging to a dead person and its guardianship come under probate jurisdiction. For example, cases involving administration and execution of the will of a deceased person. Summary jurisdiction: It refers to the authority of a court to try matters in accordance with the summary procedure. Such cases take form of summary trials in order to speedily resolve a dispute.

Kinds of Jurisdiction in Private International Law In context of Private International Law the kind of jurisdiction slightly differ from approaches of jurists as well as nation to nation, but although features, meaning and objectives are same. According to Dr. Cheshire there are four kinds of Jurisdiction in private international law. These Kinds are as below:1. Civil Jurisdiction:The civil jurisdiction deals with claims made pursuant to the court’s inherent jurisdiction and other jurisdictions vested in the court pursuant to legislation. Such matters are dealt with at trial or by way of chamber hearings18. 2. Criminal Jurisdiction:Criminal jurisdiction is a term used in constitutional law and public law to describe the power of courts to hear a case brought by a state accusing a defendant of the commission of a crime. It is relevant in three distinct situations:  

To regulate the relationship between states, or between one state and another; Where the nation is a federation, to regulate the relationship between the federal courts and the domestic courts of those states comprising the federation; and Where a state only has, to a greater or lesser extent, a single and unified system of law, it is the law of criminal procedure to regulate what cases each classification of court within

18

( Available on) www.courts.sa.gov.au/OurCourts/SupremeCourt/Pages/Civil-Jurisdication.aspx (Last visited on Nov. 15,2019)

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the judicial system shall adjudicate upon. People must be tried in the same state the crime is committed. 3. Action in personam:In personam is a Latin phrase meaning "against a particular person". In a lawsuit in which the case is against a specific individual, that person must be served with a summons and complaint to give the court jurisdiction to try the case, and the judgment applies to that person and is called an "in personam judgment19". In opinion of Dr. Cheshire, an ‘action in personam’ is designed to settle, the right of the parties as between themselves, whether it relates to an obligation or as in the case of wrongful detention of property. In Tyler V. Judges of Court of registration20 Court held , that if the technical object of suit is to establish acclaim against some individual or particular person in that case there will exist ‘Action in personam’ In personam is distinguished from in rem, which applies to property or "all the world" instead of a specific person. This technical distinction is important to determine where to file a lawsuit and how to serve a defendant. In personam means that a judgment can be enforceable against the person wherever he/she is. On the other hand, if the lawsuit is to determine title to property (in rem) then the action must be filed where the property exists and is only enforceable there. 4. Action in Rem:In rem jurisdiction ("power about or against 'the thing21”) is a legal term describing the power a court may exercise over property (either real or personal) or a "status" against a person over whom the court does not have in personam jurisdiction. Jurisdiction in rem assumes the property or status is the primary object of the action, rather than personal liabilities not necessarily associated with the property. The object of such action is to establish claim against the whole community; for example , to attach the property of a debtor, a lien over immovable goods. Action of Rem can be said as umbrella principle , because there are three more jurisdiction lies under the concept of Action in Rem Jurisdiction. These are:

Right to possession over property

In such kind of jurisdiction Court having power to decide the matter regarding tile suit between two or more individual of two or more different states. 

Admirality action

19

(Available at) https://en.wikipedia.org/wiki/In_personam (last visited on Nov., 15,2019) Tyler V. Judges of Court of registration 179 U.S. 405 (1900) 21 Garner, Bryan (2006). Black's Law Dictionary. St. Paul, MN: Thompson/West. p. 362. 20

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The Admiralty action in rem will concern when the claims and ship are put within the Admiralty Jurisdiction, an adequate and secure place for the claimants to ask for compensation. If the defendant does not provide enough security as compensation, the court may sell the “res” in order to achieve the satisfaction for the claim. Claimants take advantage of the action in rem, rather action in personam, because an action in rem is more easy and convenient to institute. It is more difficult, in an action in personam, to summon the defendant via writ outside the jurisdiction unless the defendant is a resident of EU or EFTA countries. Besides, the processes to find the rightful shipowner, the defendant, are very complicated and time consuming due to the complex and inconsistent ship registration in different countries. An action with respect to a bareboat ship will frequently encounter this problem. 

Action affecting status.

According to Cheshire Action affecting status is directly associated with status of individual in society, whether it is related to marriage status or status regarding economics. So, in such of jurisdiction court simply decide cases related to marriage, legitimacy of child, lunacy, bankruptcy etc.

Rationale behind concept 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 the possibility of a jury determination of damages in a tort case, the availability of punitive damages, the ease of obtaining pretrial discovery of evidence (commonly used in the United States), 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), and advantageous exploitation of variations in liability standards22.

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 by constitutional provisions 22

A.V. Dicey. Conflicts of Laws (Allahabad : Central Law Publications) 2006

13

or pervasive principles of law. In the United States this is the function of the due process clause of the 14th amendment of the Constitution, which limits the exercise of the jurisdiction of state courts to protect defendants against unreasonable burdens23. The 5th 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. Reyno24, a suit filed in the United States on behalf of Scottish parties whose relatives were killed in an airplane crash. 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. Only the defendants the airplane manufacturer (piper) and the propeller manufacturer had a connection to the United States. 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 shopping25. 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). 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.

23

Ibid Piper V. Reyno (1981) U.S. 235 25 Ibid 24

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CONCLUSION Conflict of laws is a general term to refer to disparities among laws, regardless of whether the relevant legal systems are international or inter-state. The term, however, can be misleading when it refers to resolution of conflicts between competing systems rather than "conflict" itself. Jurisdiction is an important factor for all justice delivery system, irrespective of geographical position. Jurisdiction limits the power of the Courts, however it also can be said that jurisdiction gives power to courts subject to jurisdiction. The concept of jurisdiction in private international law can be explained by convergence and cross functionality of question of law in a state. 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

by constitutional provisions or persuasive principles of law.

BIBLIOGRAPHY

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Books 1.Paras Diwan. Private International Law (New Delhi Sultan Chand and Sond) 1998. 2. Cherishre and Norths. Private International Law (Lucknow- Eastern Book Company) 2008. 3.A.V. Dicey. Conflicts of Laws (Allahabad : Central Law Publications) 2006. 4. Dr. Sai Ramani Garimella (Allahabad : Central Law Publications) 2006. 5. V.C. Govindaraj Private International Law (New Delhi Sultan Chand and Sond) 1998.

Websites 1. http://www.wekipedia.org. 2. http://www.indiankanoon.com. 3. http://www.manupatra.com. 4. http://www.sconline.com. 5. http://www.advocatekhoj.com.

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