Traditional Rules of

Jurisdiction in PIL
• Rules relating to Jurisdiction prescribe when a court will entertain a suit.

• Courts in each country will either assume jurisdiction or decline to do so after applying
the provisions of the applicable local law.

• Jurisdiction question attains importance when a foreign element is involved in any case
i.e. in conflict of law case.

• There are occasions when a court may conclude that in the circumstances of that
particular case, the dispute should be resolved in a foreign country by applying the rule
known as the forum non conveneins rule.
• Who Can file suits?

• At Common Law practically any one can file a suit in England, British subjects as well as
foreigners, and bodies corporate, whether incorporated in England or outside the country,
provided that they enjoy legal personality under the law under which they are incorporated.

• The only person who cannot adopt proceedings in an English court are enemy aliens.

• A person can only be regarded as an enemy if there is a state of war between the United
Kingdom and a foreign country.

• Who is an enemy is not dependent on the nationality of the person but by the place where
he is residing or carrying on business so as a person voluntarily residing or carrying on
business in a country at war with the UK is regarded as an alien enemy. (Porter v.
Freudenberg)
• Immunity from Suits.
• In Public International Law foreign states are immune from being proceeded against in
municipal courts of other countries.

• Head of states are also immune from any prosecution in any foreign state.

• In the case of R v. Christina it was held that:

• That 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
proceeding is against him in person or for the recovery of damages from him.
• The court shall not seize or detain the property of any foreign sovereign.

• This theory is called the theory of absolute theory of sovereign immunity.

• The Federation of Pakistan was entitled to immunity in respect of liability under a
contract which specifically provided that disputes under the contract would be resolved
by an English Court. (Kahan v. Pakistan Federation)

• The principle extended even to a corporate entity of the Spanish Government engaged in
commercial activity, as it was held that the functions of the corporate entity were those
of a department of state. (Baccus SRL v. Servicion Nacional Del Trigo, 1957)

• But this stance changed later and now only sovereign acts of government i.e. acta jure
imperii, are given sovereign imunity while the acts of commercial nature i.e. acta jure
gestionis are given no protection.

• In 1976 it was held by Privy Council that sovereign immunity did not apply to proceedings
in rem against a ship owned by a foreign state engaged in trading activities. (The
Philippine Admiral Case)
• Traditional jurisdiction Rules of England

Jurisdiction

In
In Rem
Personam
• Jurisdiction in personam means in cases concerning 2 parties and their issues inter se.

• In England courts assume jurisdiction if the defendant is present in the country and can
be served or has submitted to the jurisdiction of the court or with the leave of the court
has been served outside the country.

• English courts also have jurisdiction if there is an antecedent agreement between parties
that English courts would have jurisdiction and if the defendant himself has filed a
proceeding in England, the court can entertain a counter claim.

• A foreign corporation carrying on business in England, though not incorporated according

to English law , can be sued in England if the cause of action has arisen in England.
(Newby v. Von Oppen)
• At Common Law unless the defendant was within the jurisdiction of the court, an English
court could not entertain a suit and a plaintiff was required to follow the defendant to his
residence.

• Jurisdiction was later conferred on English courts to serve the defendants outside
England in appropriate cases by the Common Law Procedure Act, 1852.

• Such jurisdiction is called assumed jurisdiction and is used only in exceptional situation if
the plaintiff clearly satisfies the court that an English Court is the appropriate forum.
(Spillada Maritime Corpn v. Cansulex Ltd)

• An American Magazine, widely circulated in England contained material alleged to be

libelous of a Russian, the Russian could file a suit in England as he had a significant
connection with and a reputation to maintain ion England. (Berezovsky v. Micheals)
• In Roman Law an action in Rem was brought in order to vindicate a jus in rem i.e. a right of
ownership available against all persons, but the only action in rem known to English law is that
which lies in an Admiralty Court against a particular res namely a ship or against another res such as
cargo.

• In Common Law this jurisdiction enables courts to pronounce on things mainly ships and their cargo.

• For such judgments the ships must belong to a foreign country and must be in the territorial waters
of England. The action is brought against the ship and not any individual person.

• The court can order the sale of the ship or the cargo.The judgments operates in rem in the sense
that it divests the property in the ship from the owners and confers an absolute title on the
purchaser.

• Suit can be brought against the primary ship (one which collides) or against “another ship” of the
owner but not both.
• This Jurisdiction covers the following
• Claims to possession or ownership of ship, disputes between co-owners of ships, claims
regarding mortgage or charge of ship, seizure or forfeiture of the goods of ships etc.

• Such claims can only be enforced against the very ship to which the claim pertains.

• In addition certain claims can be enforced an other ship of which the owner is the
beneficiary.

• Claim for damages, loss of life, damage of goods, claim for dock charges, claim in respect
of construction, claim relating to hire of ship etc.