JURISDICTION

MEANING OF JURISDICTION
• • The term ‘jurisdiction’ derived from Latin words: ‘juris’ means law and ‘dicto’
means speaking. So, ‘jurisdiction’ means speaking by law.
• Jurisdiction is the power or authority conferred by law upon courts to entertain a suit
and decide the dispute between the parties and render a valid judgement.
• Here the question is – whether a court will hear and determine an issue upon which its
decision is sought?.
• Rules relating to jurisdiction prescribes when a court will entertain a suit. Courts in
each country assume or decline jurisdiction as per applicable local law and they won’t
consider whether their actions in conformity with the rules of international law.
• The principal applicable law in India is Civil Procedure Code 1908 which contained
detailed provisions upon jurisdiction (when courts have or do not have jurisdiction) –
Section 16 to 20 CPC
• Coram non judice – means ‘not before a judge’. Any judgement or sentence passed by a
court which has no authority to try – is clearly in violation of the law and would be Coram
non judice. And the judgement will be treated as nullity
• Quid quid est in territorio es estian de territoria- every state has jurisdiction over
everything situated within and over every person present within its territory
There are two sets of questions that
arise
against whom
an action can
what types of actions can be filed be filed and
who

Action inter Actions

Actions related
parties or relating to
to property
personal actions status
 WHO CAN FILE SUITS

At Common Law, practically

 any one can file a suit in England,
 British subjects as well as foreigners,
 and body corporates, whether incorporated in
England or outside the country,
 provided that they enjoy legal personality
under the law under which they are
incorporated.
 SUITS BY ALIEN ENEMY
• The only persons who cannot adopt proceedings in English court are enemy aliens
• A person can only be regarded as an enemy if there is a state of war between the UK
and a foreign country: whether there is a state of war and whether the war has come to
an end, are not questions which a court determines on its own , but the issue is
conclusively determined by a certificate from the appropriate minister
• Who is an alien enemy??
• It depends not on the nationality of the person but by the place where he is residing oe
carrying on business, so a person voluntarily residing or carrying on business in a
country at war with the UK is regarded as an alien enemy
• The same applies to companies .
• A company incorporated in the Netherlands , which was occupied by Germany with
whom the UK was at war, was regarded as an alien enemy ; it could not resort to
English court unless permission was given by Royal License
Sovfracht v Van Udens Scheepvaart en Agentuur Maatschappij (1943)
• Where in a partnership fir, one of the partners holding a small share was an
enemy alien, the firm stood automatically dissolved on the outbreak of war, and
the remaining partners could file a suit against the creditors of the firm to recover
the assets of the firm as it would be against public policy to deny to British
subjects their right to recover the assets of the firm of which they were partners.
• A person regarded as an enemy cannot file a suit , but can do so if he is in the UK
with a Royal license. However , an alien enemy can be sued, and if he is sued, he
can defend himself, and file an appeal against any adverse order , final or
interlocutory
• If he had filed a suit before the outbreak of war, he cannot file an appeal if his suit
is dismissed as his right to do so suspended.
 AUSTRALIA AND CANADA
• Australia generally follows English law
• CANADA
• Canadian courts have, in the past, followed English law
but it has been suggested that they may no longer do so ‘as
there would seem to be little cause in a dispute otherwise
properly before the court for the status of the plaintiff
based on the plaintiff’s residence to be reviewed for the
purpose of determining whether to exercise jurisdiction
 POSITION IN INDIA
• In India , the position is regulated by section 83 of the CPC , 1908 , Which is based on The
Common Law.
• It is provided that alien enemies residing in India with the permission of the GOI can file
suits like any Indian citizen , but alien enemy residing in India without such permission or
alien enemy residing in foreign country , cannot file a suit
• Same is for an alien company
• A foreign company can sue in India
• An alien enemy can, however defend a suit
• Who is an alien enemy depends not on the nationality of the person but by the place where
he is residing or carrying on business. The same applies to corporations.
• So a person voluntarily residing or carrying on business in a country at war with India is
regarded as an alien enemy.
• A Pakistani citizen could file a suit after the war, and the proclamation of emergency had
come to an end
• Where a friendly country is invaded and occupied by the enemy. A person residing in such a
place cannot be regarded as an alien enemy as the government of that country was not at war
with India.
• Similarly, if an alien enemy had field a suit before the outbreak of war, the suit is maintainable
and can be heard even if he subsequently becomes an alien enemy. But he cannot file an appeal
if his suit is dismissed as his right to do so is suspended
• However, an alien enemy can be sued, and if he is sued, he can defend himself, and file an
appeal against any adverse order (may be final or interlocutory).
• Is five out of six partners of a firm were resident in Turkish territory when Turkey was at war
with India, the firm could not sue in Indian court – Haji Ali Jan v Abdul Jalil Khan 1920
• An alien enemy who is permitted by the GOI to stay in India can file a suit .
 IMMUNITY FROM SUIT
• In International law, foreign states are immune from being proceeded against in the
municipal courts of other countries. This principle is universally recognized.
• International Convention against Torture and Other Inhuman or Degrading treatment
or Punishment , 1984
• Under this convention, provides that no exceptional circumstances whatsoever whether war,
internal instability or emergency can justify the use of torture, and also provides that it is no
defense to such an act that it was ordered by an superior officer. (article 2)
• If a person has committed such an offence is within the jurisdiction of a contracting state, the
state must take necessary steps to prosecute him. Article 5
• Further all contracting states must, if requested to do so, extradite such person, and the
offence of torture is deemed to be an extraditable offence. Article 7
 ENGLAND
• Earlier Theory of Immunity
• The sovereign immunity has long been recognized at Common Law.
• It was held in the Cristina case (1938) the courts of a country will not implead a foreign
sovereign , that is, they will not by their process make him, against his will a party to legal
proceedings whether the proceedings involve process against his person to seek to recover
from specific property or damages
• They will not by their process, whether the sovereign is a party to the proceedings or not,
seize or detain property which is his or of which he is I possession or control .
• But this expresses to Absolute theory of sovereign immunity
• Even though the Government of Kelantan had entered into a mining concession which
contained an arbitration clause, government was entitled to sovereign immunity so that an
award against it could not be enforced in the English court
Duff Development Co Ltd v Government of Kelantan 1924

• Pakistan Federation was entitled to such immunity in respect of a liability under a contract
which specifically provided that disputes under the contract would be resolved by the
English Court. Court od appeal held that foreign state had resiled from its agreement to
submit to the jurisdiction of an English court , this could not be regarded as a submitting as
the agreement was inter partes, and not to the court Kahan v Pakistan federation 1951
C Czarnikow Ltd v Centrala Handlu Zagranicznego Rolimpex 1979 foreign corporate entities
set up and owned by a foreign state could be distinct in all respects from the state.
 MODERN THEORY OF RESTRICTED
IMMUNITY
• With increase in commercial activities , courts started distinguishing between acts of
sovereign state , the acta jure imperii (where the state enjoyed immunity )
• And the acts of a state of a commercial nature , the acta jure gestionis, where there was no
immunity
• The Philippine Admiral 1977- the Privy Council in an appeal from Hong Kong did not apply
sovereign immunity to proceedings in rem against a ship owned by a foreign state engaged
in trading activities,
• a member of American Air Force stationed in Britain could not adopt proceedings in an
English court against the Government of US for alleged negligence in the treatment he
received in the US military hospital in Britain – Littrell v USA 1995
• The House of Lords held that an American who was teaching in a US military base in Britain
could not file a suit for libel action against an officer of base who has listed several
complaints against the plaintiff , as the officer was discharging a part of the sovereign
functions of the US- Holland v Lampen Wolfe 2000
• PRESENT POSITION –
• The present position is now regulated by the English State Immunity Act 1978. government
immunity applies to governmental acts of a foreign state but does not extend to several
situations , for example,
• Where the state submits to jurisdiction
• Acts of commercial nature
• matters relating to a contract entered into or performed in England
• Contract of employment of individuals employed in England,
• Claims arising out of torts in England, etc.
• IMMUNITY OF FOREIGN HEADS OF STATE
The English State Immunity Act 1978- PRESENT OR FORMER Head of state enjoys
immunity
Exception – convention against torture, 1984
Criminally proceedings are adopted against a former head of state of Chile alleging such acts,
state immunity does not extend to him, he is liable to be extradited – R v Bow Street
Metropolitan Stipendiary Magistrate , ex p Pinochet Ugarte 2000

• Immunity of officers of foreign state

• it extends to officers of foreign state in respect of acts done by them in their official capacity
• It does not extend where the foreign state itself sues an officer for an act done by him, which
has caused harm to the state
• IMMUNITY TO FOREIGN STATE ENTITIES-
• They enjoy immunity only if it extends to which the proceedings relate to government acts
• Immunity to property of foreign states
• It extends to property so that it cannot be attached in execution , it extends to proceedings in
rem, the bank accounts of a diplomatic mission and property held by a foreign state as a
Bailee, or an agent.
• A foreign state cannot , however claim such immunity if the title of the foreign state to the
property is defective
• WAIVER OF IMMUNITY
• A foreign state can waive immunity by submitting to the jurisdiction of an English Court
• IMMUNITY OF FOREIGN DIPLOMATS AND OF INTERNATIONAL
ORGANISATIONS
• In England, immunity for suit is also enjoyed by foreign diplomats(English Diplomatic
Privileges Act 1964), foreign consuls (English Consular Relations Act 1968) and
international organizations. (like UN)
• The immunity also extends to their officers; such immunity doesn’t extend to proceedings by
the organization against the officer
 AUSTRALIA
• Australians have earlier followed English law aand applied the absolute theory of immunity
• After 1985, the position is regulated by a Commonwealth statute , the Foreign State Immunity
Act 1985, and thus the restrictive theory is applied
• A state enjoys no immunity if it has submitted to the jurisdiction of the court, and such
submission can be an earlier agreement
• Under the Australian statute , a foreign state enjoys ni immunity in respect of a commercial
contract , that is , a contract for supply of goods, loan, guarantee , indemnity , tort in Australia.
• A foreign state does not enjoy any immunity from execution against its property used for
commercial purpose
• Immunity can be waived
• Under Australian Diplomatic Privileges and Immunity Act 1967, Australian consular Privileges
and Immunity Act 1968, and the International Organization (privileges and Immunity) Act 1963
Diplomats , Consular offices, international organizations and their officers also enjoy immunity
 CANADA
• Canada earlier accepted the absolute theory of immunity ; later they adopted restrictive
theory
• The position is now regulated by statute, the Canadian State Immunity Act , 1982, under
which a foreign state does not enjoy immunity in respect of its commercial activity or torts
committed in Canada, or maritime matters , or any interest in property it may hold.
• The property of a foreign state also enjoys immunity except in respect of commercial
property
• Immunity can be waived
• Diplomats, consular , international organisations also enjoy immunity – Foreign Missions
and International Organisation Act 1991
 INDIA
• In India the question is governed by statutes, section 86 of the CPC. The UN(Privileges
and Immunities) Act 1947, the Diplomatic Relations (Vienna Convention ) Act 1972
• O foreign State may be sued in any court otherwise competent to try the suit except with
the consent of the Central Government certified in writing
• Before the consent is refused the Central Government must give the plaintiff a
reasonable opportunity of being heard
• Except with the consent of the CG , no decree can be executed against the property of
any foreign state
• Same is the immunity for foreign states, ambassadors, high commission of
Commonwealth countries and specified diplomatic personnel
• No ruler of foreign state or ambassador or high commission or specified diplomatic
personnel can be arrested under the CPC
• Suits against ruler of a foreign state should be in the name of the foreign state
• The immunity will not extend to insolvency proceedings , if a person is adjudicated as an
insolvent, the ruler of an Indian sate who is his creditor can be called upon to prove his claim.
• If he fails to do so , and the insolvent is discharged , the ruler will lose his right to recover the
amount from the insolvent
• The immunity extends to commercial activities of a foreign state as it is clear from section
86(2) , which covers trading activities
• Whether a corporation incorporated in a foreign state is distinct from the state so that it would
enjoy such immunity has to be determined with reference to the laws of that foreign state
• Section 86 does not apply to suits to recover rent from a foreign state in respect of property
belonging to the applicant
Immunity can be waived by a foreign state and such waiver can be presumed from conduct
Waiver of immunity in a previous suit does not amount to a waiver in a subsequent suit
Foreign diplomats and representatives of the UN , enjoy immunity from tax under the UN
(Privileges and Immunities) Act 1947 and the Diplomatic Relations (Vienna Convention ) Act
1972
 JURISDICTION
• In international law , courts of any country have jurisdiction over property situated within
the country and over person who are citizen of that country or domiciled there, who owe
commitment to that country.
• At common law , jurisdiction is exercised over property situated within the country , the
court can exercise jurisdiction in personam, this can be done if the defendant is not within
the jurisdiction of the court and is not a citizen of the country, if the cause of action , or part
of it, has arisen within the jurisdiction of the court
• In common law , jurisdiction in rem is also exercised in Admiralty matters .
 INDIA
Suits for compensation for wrongs done either to person or movables can be filed in the court
within whose jurisdiction the wrong was done, or the defendant actually or voluntarily resides
or carries on business or personally works for gain (CPC, S.19)
A corporation is deemed to carry on business as its sole or principal office in India , or in
respect of a cause of action arising in any place where it has a subordinate office , at such
place.
All high courts in India would have admiralty jurisdiction , it can , of course , be exercised
only by high courts whose jurisdiction extends over coastal waters.
Any ship, whether an Indian ship or a ship registered outside India, which is alleged to be the
ship which has caused the damage or loss or whose cargo is said to have damaged or lost, can
be proceeded against.
• The Carriage by Air Act 1972, gives statutory force to the Warsaw convention , and the
Hague protocol relating to international carriage by air.
• An action for damages against a carrier ha to be filed, at the option of the plaintiff either
where the carrier is ordinary resident or has his principal place of business or has an
establishment where the contract was made, or at the place of destination .
 IMMOVABLE PROPERTY

• It is recognized in international law that courts have jurisdiction in respect of issues relating
to immovable property situated in the country. Neither in india or England courts directly
exercise jurisdiction over property locsted outside the country
• ENGLAND-
• By a statutory change made in 1982, suit for trespass or other torts relating to foreign land
can be entertained in an English court
• A suit be maintained for specific performance of a contract relating to immovable property
• Under English matrimonial causes Act 1973, court has jurisdiction to give directions relating
to any property belonging to husband and wife , the court can give such directions relating to
the immovable property belonging to a party outside England, provided that the court can
make the direction effective by an order in personam against the defendant.
 AUSTRALIA AND CANADA
• Australia
• Apply common law rules evolved in England
• In matrimonial matters, if Australian court hs jurisdiction in personamagainst the parties , it
can give directions relating to the immovable property of the couple outside jurisdiction

• Canada
• Same as England
• Actions in personam are maintainable if the defendant is amenable to the jurisdiction of the
court and the claim arises from a contract, trust or fraud
• INDIA
• SAME AS England
• Section 16 of CPC, 1908 – JURISDICTION CONFEREED BY THAT SECTION ON Indian
courts is confirmed to property situated in India
• Relief in a suit can be filed either by the personal obedience of the defendant, the duit can be
filed either in the court within whose local limits the property is situated or the defendant
actually and voluntarily resides or carries on business or works for gain
• Courts in india will not entertain suits in respect of property situated outside India
• An award relating to immovable property located outside India cannot be filed in an indian
court
 JURISDICTION OVER FOREIGN INTANGIBLE
PROPERTY

• It has been held in England that an English court would not entertain a suit challenging the
validity of a foreign copyright
• Australian court will also not go into validity of a foreign patent, copyright etc.
• Suits for infringement of foreign intangible property can however , be maintained wherever
the infringement takes place
• India- it is a territorial concept, infringement of foreign intangible property can be
entertained by courts
• The Hague Convention on the Choice of a Court , 1965
• The Convention enables parties to decide in advance that any dispute that may arise between them will be
decided in the court of a particular country . And if such agreement has been entered into, such a court
would have jurisdiction to entertain the suit, and any judgement passed by such court , would be
recognized and enforced by the courts of member state.
• The European Union (covering the European territory of all member states except Denmark), Denmark, Mexico,
Singapore and the United Kingdom are parties to the convention. China, Montenegro, Ukraine and the United
States signed the convention, but did not ratify.
• This Convention shall apply to agreements on the choice of court concluded in civil or commercial matters in
situations having an international character.
• It shall not apply to agreements on the choice of court concluded in the following matters -
• (1) the status or capacity of persons or questions of family law including the personal or financial rights or
obligations between parents and children or between spouses; 
(2) maintenance obligations  
(3) questions of succession; 
(4) questions of bankruptcy,
(5) rights in immovable property
• This Convention shall apply whatever the nationality of the parties
 ENGLAND
• In England courts assume jurisdiction if the defendant is present in the country, and can be served
, or has submitted to the jurisdiction , or with the leave of the court , served outside the country
• They also have jurisdiction if by an agreement between parties that English courts would have
jurisdiction
• Foreign companies- a company is regarded as being present if it has established a fixed place of
business and carried on servants or agents or a representative
• Or raises funds in England, or has an office where activities incidental to its main business are
carried on even if a substantial part of the business of the company is not done at that office
• If a party is served and argues the matter , he is regarded as having submitted to the jurisdiction of
the court , if he acknowledges service and contests jurisdiction , he has not submitted to the
jurisdiction
 AUSTRALIA
• Australian courts exercise jurisdiction over a defendant who is domiciled in Australia or is
present in Australia , however short period for which he may be present
• A court has jurisdiction if the defendant has submitted to the jurisdiction by-
• When he has agreed in advance in express terms that dispute between him and other party
shall be decided by a court within the forum
• By appearing in the proceedings and contesting the proceedings on merits
• by bringing the proceedings himself as a plaintiff in that court
• COMPANY- require foreign companies carrying on business in Australia to register and
indicate the name of a person who can be served with notice on behalf of a company ; it can
be sued in Australia as long as its name is on the register
• Foreign companies can be sued in Australia If they carry on business in Australia ;
 ADMIRALITY JURISDICTION
• England – English admiralty court act 1861- claims for possession , ownership , question
between co owners, mortgage, charge, damage done by ship . Loss of life or personal injury ,
loss or damage of goods carried on by ship , etc
• Australia – Admirality Act 1988
• Cnanda – Federal Court Act 1985
• India- Merchant Shipping Act 1985
 COURTS WILL DECLINE JURISDICTION
OR GRANT AN ANTI SUIT INJUNCTION
• Courts in common law countries can decline to do so when proceedings between parties are
pending , or proposed to be filed in a foreign court, and if it is found that the dispute may
more conveniently be tried in the courts of a foreign country which has jurisdiction , they
may decline to exercise jurisdiction
• ENGLAND
• Traditionally English courts were reluctant to decline to exercise jurisdiction by staying
proceedings to exercise jurisdiction by staying proceedings pending in English courts, and
relegate parties to foreign court on the ground that proceedings in another court would be
more just or convenient
• The rule of FORUM NON CONVENIENCE was developed in the Scottish law , and then
in US and much later recognized in England
• The basic rule is that the court must determine in which court the case could be tried in the
interest of all parties and in the interest of justice
• Common law countries have developed a test – there is another available forum which is
prima facie the more appropriate forum, unless there are special circumstances so that justice
requires that the action should be tried in England only
• At times the test applied is so ascertain which is natural forum , that is the forum with which
the dispute has the most real and substantial connection
• Where the proceedings are pending before another forum in a foreign court , is only one
factor to be considered in determining which is the more appropriate forum ,
• A number of factors are taken into consideration.
• English courts have , of course , no jurisdiction to restrain a foreign court from entering , or
continuing proceedings before it
• If courts have jurisdiction over the plaintiff in the foreign proceedings, the court may issue
an injunction restraining him from filing or continuing proceedings in a foreign court
• The basic rule an English court is required to follow before issuing an anti suit injunction is
that the English court must have sufficient interest in the matter
 QUEBEC
• In Quebec, until the decision of the Supreme Court of Canada of October 31, 2013, there
was a jurisprudential conflict within the Quebec Court of Appeal on this question. The
majority had given a restrictive interpretation to the notion of damage, the purely economic
damage being excluded systematically.
• The relevant provision is paragraph 3 of Art. 3148 of the Civil Code of Quebec which reads
(in part), as follows:
• « Art. 3148. In personal actions of a patrimonial nature, a Quebec authority has jurisdiction
where (...)
• (3) a fault was committed in Quebec, damage was suffered in Quebec, ... »
• In many cases, the Quebec Court of Appeal had to interpret the word « damage » used in
Art. 3148. The majority had given a restrictive interpretation to the word.
 EUROPE
• In the European Union, the Brussels Rules I and II Bis contain the rules of jurisdiction common to the
member states of the European Union. It facilitates the obtaining of judgments within the European Union.
• Therefore, under Art. 5.3 of the Brussels I Rule, the Court having jurisdiction will be that of the place
where “the wrongful act occurred or risks occurring”.
• The Cour de justice des communautés européennes (CJCE) in its judgment of November 30, 1976, in the
case of Handelskwekerij G.J. Bier BV v. Mines de potasse d’Alsace SA, aff. C-21/76, ruled that the “place
where the wrongful act occurred”, means the place where the wrongful act occurred, as well as, the
place where the damage was suffered. If these are two distinct places, the Plaintiff will have the choice
to file his lawsuit in one or the other jurisdiction.
• The Lugano convention contains rules of jurisdiction between the member countries of the European Union
and the member countries of the European free trade association (Switzerland, Norway, Iceland and
Liechtenstein).
• its article 5 stipulates: “in delictual or quasi-delictual matters, the defendant domiciled on the territory
of a contracting State, may be sued before the Court of the place where the wrongful act occurred”.
 FRANCE
• In France, where there is an international conflict of jurisdictions with a country outside of the
European Union, the Courts have ruled that, by extrapolation the French territorial rules of
jurisdiction are to be used to determine international jurisdiction. The First Civil Chamber of the
Cour de Cassation in its judgment of October 30, 1962 (Case No 61-11.306), ruled that “the
international jurisdiction is determined by extension of the internal rules of territorial jurisdiction”
• The internal rules applicable to an international situation are as follows: Articles 14 and 15 of the
Civil Code give a jurisdictional privilege to Plaintiffs and Defendants who are French citizens:
• “the foreigner even when he is not a resident in France can be sued before the French
Courts for the execution of obligations agreed to in France with Frenchmen; he may also be
sued before the French Courts for obligations contracted in a foreign country in favour of
Frenchmen” and “A Frenchman may also be sued before a Court in France for obligations
he contracted in a foreign country in favour of a foreigner”.
• The two articles therefore give jurisdiction to a French judge.
• “A Plaintiff may choose, in addition to the jurisdiction of the domicile of the Defendant:
• –in contractual matters, the jurisdiction of the place of the effective delivery of the object or
the place where the service was to be performed;
• –in delictual matters, the jurisdiction of the place where the wrongful act was committed or
the jurisdiction of the place where the damage was suffered;
• –in mixed matters, the jurisdiction of the place where the immoveable is situated;
• –in alimony matters or obligations arising from marriage, the jurisdiction of the place where
the creditor of the obligations resides.”
therefore, in dilectual matters, the Plaintiff may choose either the Court of the place where the
Defendant is domiciled or the Court of the place where the wrongful act was committed or the
Court of the place where the damage is suffered.
 GERMANY
• German law doesn’t contain any particular rule concerning international jurisdiction.
• It was left to the Courts to clarify the situation. German jurisprudence has established that the rules
of international jurisdiction are the transposition of the internal rules of jurisdiction.
• The principal internal rules applicable to an international situation are as follows:
• Art. 12 of the Code of Civil Procedure provides as a general rule, that the competent Court is
the Court where the Defendant has his residence.
• Art. 29 of the Code of Civil Procedure provides that in a contractual relationship, the
competent Court is that of the place where the obligation is to be performed.
• According to Art. 32 of the Code of Civil Procedure, in case of extra-contractual liability, the
competent Court is that where the wrongful act was committed. However, nothing in those rules
gives jurisdiction to the Court of the place of the residence of the person who has suffered a damage.