SEMINAR PAPER

JURISDICTION AND OF COURTS

PRESENTED BY

MRUDULA UPENDRA JOSHI

2nd year llm 1st Semister
ROLL NO. 1512

GUIDE
DR. VIKAS BHATNAGAR
TEACHING FACULTY
MARATHWADA MITRAMANDALS SHANKARRAO CHAVAN LAW
COLLEGE
DECCAN GYMKAHANA PUNE

INDEX

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2)
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4)

1)

PREFACE.
MEANING OF THE CONCEPT OF JURISDICTION.
JURISDICTION OF COURTS IN PRIVATE INTERNATIONAL LAW.
IMPORTANCE OF JURISDICTION IN PRIVATE INTERNATIONAL LAW

MEANING OF THE CONCEPT OF JURISDICTION.

Jurisdiction (from the Latin ius, iuris meaning "law" and dicere meaning "to speak") is the
practical authority to interpret and apply the law, or to govern and legislate. It is granted to a
formally constituted legal body, such as a court, or to a political leader. It grants authority to deal
with and make pronouncements on legal matters and, by implication, to administer justice.
Jurisdiction has defined areas of responsibility, e.g. Michigan tax law. Areas of jurisdiction apply
to local, state, and federal levels, e.g. the court has jurisdiction to apply federal law. Colloquially it
is used to refer to the geographical area to which such authority applies, e.g. the court has
jurisdiction over all of Colorado. The legal term refers only to the granted authority, not to a
geographical area. 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.

2) JURISDICTION OF COURTS IN PRIVATE INTERNATIONAL LAW.

Conflict of laws, also called private international law, the existence worldwide, and within
individual countries, of different legal traditions, different specific rules of private law, and
different systems of private law, all of which are administered by court systems similarly subject to
different rules and traditions of procedure. The law of the conflict of laws pertains to the
resolution of problems resulting from such diversity of courts and law. Each countrys legal system
reflects its societys values. As a result, national laws and the structure of domestic judicial systems
vary considerably from country to country. Nevertheless, many kinds of legal situations or events,
such as marriage, decedents estates, torts, and business transactions, often are not confined to a
single country or even to a single jurisdiction within a country. The courts of each involved
country may claim jurisdiction over the matter, and the laws of each involved country may be
applicable under certain circumstances. When such conflicts, or differences, exist, procedures need
to be in place to resolve them; the term conflict of laws (sometimes also conflicts or conflicts law)
describes the body of law of each country or state that is designed to resolve problems arising from
the differences between legal systems. Conflict of laws is a term used primarily in the United
States, Canada, and, increasingly, the United Kingdom. In most other countries (and historically in
the United Kingdom), the term private international law is used. The latter term derives from
the civil-law distinction between private and public law, whereby private law addresses the legal
relationships between and among individuals, corporations, and even the state in its relations with

individuals and corporations when it is not acting in a governmental capacity (for example, in the
conclusion of contracts), while public law deals with the law governing state institutions as well as
the latters governmentale.g., regulatoryrelations with private parties. Private international
law thus emphasizes the differences between national legal systems: although the term private
international law may aptly describe the subject matter, it may also mislead by suggesting that
there is an international body of rules to bridge differences between legal systems. This is
emphatically not the case. The term conflict of laws refers primarily to rules that are solely national
in origin and are explicitly not part of international law (except insofar as countries have concluded
treaties concerning them).
Conflicts law must address three principal questions. First, when a legal problem touches upon
more than one country, it must be determined which court has jurisdiction to adjudicate the matter.
Second, once a court has taken jurisdiction, it must decide what law it should apply to the question
before it. The rules governing the court may direct it to apply its own law or call for the application
of the law of another country. Third, assuming that the court ultimately renders a judgment in
favour of the plaintiff, conflicts law must address the enforcement of the judgment. In the event
that the defendant has insufficient assets locally, recognition and enforcement of the judgment
must be sought in a country where assets do exist.
Jurisdiction
As stated above, the first question in an international case potentially involving conflict-of-laws
problems is which court has jurisdiction to adjudicate the matter. Although the plaintiff decides
where to sue, the courts in that location may not have jurisdiction, or they may have jurisdiction
but be unwilling to exercise it, for reasons of forum non conveniens (Latin: inconvenient forum),
as may happen in some common-law countries.
Rationale behind choice of jurisdiction
There are several factors that affect the plaintiffs 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 ones 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 standards.
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 (as a check on the statutory
grant or on the judicial exercise of it) by constitutional provisions or pervasive principles of law. In
the United States this is the function of the due process clause of the Fourteenth Amendment of the
Constitution, which limits the exercise of the jurisdiction of state courts to protect defendants
against unreasonable burdens. The Fifth 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 countrys courts (so-called forum shopping). Especially in the United States, courts
may consider themselves to be a forum non conveniens in these circumstances and dismiss the
action. This occurred in Piper Aircraft v. Reyno,1 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 defendantsthe airplane manufacturer (Piper) and
the propeller manufacturerhad a connection to the United States. Because the plaintiffs sought
remedies that were not availableat least not to the extent desiredunder Scottish law, they
decided to bring suit in the United States, making this a clear case of forum shopping.
American courts may dismiss for forum non conveniens when the exercise of jurisdiction would be
unduly burdensome for the defendant. In many cases, dismissal protects the foreign defendant as
1 Piper Aircraft v. Reyno, 454 U.S. 235 (1981).

much as it protects the local court from unfair burdens of foreign litigation. Courts likewise will
not entertain actions concerning title to real property located in another country; while their
judgment would bind the parties before them, the power to deal with the property itself (with effect
as against all potential claimants) belongs solely to the country of location (situs).
Civil-law countries generally do not dismiss actions for reasons of forum non conveniens.
The European Court of Justice has held expressly that the allocation of jurisdiction by EU law
(namely, the Brussels I Regulation) is binding on national courts. As an exception, the Brussels II
Regulation permits dismissal or transfer for forum non conveniens reasons in child-custody cases.
(See below Recognition and enforcement of judgments.)
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). Although state-court
jurisdiction is a matter of state law in the United States, federal constitutional law, particularly the
Fourteenth Amendments due process, equal-protection, and privileges-and-immunities clauses,
limits the assertion of state-court jurisdiction.
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.
Alternatively, consent may be the result of conduct. The plaintiffs consent appears from the filing
of the action. The defendants consent may be presumed when, rather than objecting to the courts
jurisdiction, the defendant confesses judgment or appears and begins to litigate the controversy.
Even when both parties consent to a courts jurisdiction, the court in a common-law country may
still decline to hear the casefor example, when neither of the parties nor the controversy has a
connection to the country in which the court is located. In most cases, however, a courts
jurisdiction is not an issue unless and until the defendant objects to it.
4) IMPORTANCE OF JURISDICTION IN PRIVATE INTERNATIONAL LAW

Jurisdiction has traditionally been considered in international law as purely a question of the rights
and powers of states. Conceived in this way, the rules on jurisdiction serve the important function
of delimiting (while accepting some overlap of) state regulatory authority the question of when a
person or event may be subject to national regulation a function which is shared with the cognate
discipline of private international law. This article suggests that the idea and the rules of
jurisdiction in international law require reconceptualisation in light of three developments. The
first is the growing recognition that in a range of circumstances the exercise of national jurisdiction
may, under international law, be a question of duty or obligation rather than right. The second
development is the increased acceptance that such jurisdictional duties may in some circumstances
be owed not only to other states but also to private parties, particularly through the emergence and
strengthening of the doctrines of denial of justice and access to justice. The third development is
the widely recognised phenomenon known as party autonomy, under which private parties in civil
disputes have the power to confer jurisdiction on national courts and to determine themselves
which law governs their relationships. In combination, these developments suggest the necessity of
rethinking the concept of jurisdiction in international law, to reflect the more complex realities of
an international legal order under which states possess both jurisdictional rights and obligations
and are no longer the exclusive actors.

Suggested Readings:
Diecy, Morris & Collins : Conflict of Laws (14 th edn) 2005
Cheshire and North: Private International Law 2006
A.M.Setalvad: Conflict of Laws, 2nd Edn(2006)
Ruth Hayward: Conflict of Laws (4th edn) 1999