Jurisdiction and Conflict of Law Assessment Answer

Introduction to Private International Law

Private international law, sometimes known as conflict of law, is that branch of law that deals with the ability of domestic courts to deal with foreign parties. The question that specific courts can hear specific matters dependent upon the facts of the dispute and the location of the parties. When any case is operating within the domestic scenario then, the domestic laws and courts have jurisdiction over them. Not all cases can be heard and decided by every court therefore, every court carries a specific ability to hear and decide the matter, also known as the jurisdiction of the courts. Suppose, a dispute arose between two persons belonging to the same country and had a dispute over the same subject matter then, the domestic laws and courts have all the territorial jurisdiction over the dispute. In case, the parties involve foreign parties or where the subject matter involves any foreign laws, in such a case the courts must determine two aspects whether the courts carry the jurisdiction to resolve the subject matter and second, whether the local laws of the country can be applied to the issue involved. The determination of these two aspects can render whether the domestic court can have jurisdiction over the matter of conflict of laws. According to the scholar, the term conflict of law involves two different terms that are conflict and law which indicates a dispute between laws of various other territories. That poses a challenge to resolving any issue, in proving an effective and efficient judgment, in recognition of the judgment and its enforceability. However, the laws of different countries are not actually in dispute with each other they are proper legislation of any country providing accurate relief whereas disagreement between parties of different countries poses a challenge for the courts to poss jurisdiction over the matters. The advent of globalization resulted in an increase in the number of transactions in international trade, which requires the movement of a person from one country to another, a change in investment, capital, and labour, and an increase in the number of resources between various countries. This resulted in courts of different countries dealing with the issue of other countries. This brings the term conflict of law into motion. Therefore, in this paper, the researcher will focus on the various ways namely, choice of jurisdiction, recognition of judgment, choice of law, and enforcement of the judgment through which an English court may acquire jurisdiction in conflict of law.

Scope and Objective of Private International Law

The purpose of the conflict of law is to define and extend the extraterritorial power of the states over the matter, to resolve disputes that involve foreign elements, and to provide justice regardless of the origin of the crime. While deciding whether the courts possess jurisdiction over the matter various principles are identified such as Lex fori which means the court will apply local laws or the laws that are followed in the territorial jurisdiction of the court, Lex Domicilli, which denotes that the party will be subject to the laws of the state where they dwell, lex Patriae, which denotes that the laws of the country will be applied, Lex Loci contractus, which denotes that the law of the state in where the contract was executed, will be applied, Delicit, which refers to the law of the state where the tort is committed ,and Lex Loci Solutionis, which refers to the law of the location where the contract was made, Lex Loci Celebrationis, which is utilised in family law cases and identifies the location of the marriage, Lex situs which means law of a state will be applied where the disputed property is situated. Therefore, a uniform legal system was required to regulate the conflict of law. EU passed a regulation in 2001 namely Brussels Regulation 1 to define the jurisdictions of the courts, to enforce and recognize the judgment of courts in different jurisdictions. EU has been also largely successful in resolving and providing a uniform set of governance for the matters related to conflict of law. These regulations are based upon the two EC regulations namely Rome 1 Regulation, and Rome II Regulation. Under this, a judgment made in one country is recognized and enforced in other countries that have acknowledged the EU regulation.

Jurisdiction in Conflict of Laws

The English courts can be given jurisdiction in cases involving conflicts of laws in a variety of ways, including jurisdiction based on the defendant's presence in England, the defendant's place of abode or domicile, the location of the property, jurisdiction based on contractual agreements, jurisdiction based upon the Brussels I regulation, jurisdiction based upon thee Lugano convention, and the jurisdiction based on the common laws. The most common form of choosing the jurisdiction by the English courts is the jurisdiction based upon the person being in England. The courts have the authority to exercise jurisdiction if the court noticed the defendant's presence in England. This is also known as a jurisdiction “in personam” and if the defendant is the domicile or resident of England then, also the English courts can acquire jurisdiction. However, the permanent place of the defendant or his home place is considered while acquiring the jurisdiction. However, if there is a disagreement over real estate in England, the English courts would have jurisdiction over the subject.

There are various other ways also through which the courts can acquire jurisdiction such as if any contract is signed between two parties and they have chosen England as the place having jurisdiction over the matters of disputes, then also the courts can acquire the jurisdiction. A contract can also help decide and acquire jurisdiction by the English Courts. A contract are referred to as an agreement between two parties involving several questions such as where the contracting party should be doing their business and in case of a dispute which law should be applied to contracting parties. In such a scenario, the jurisdiction mentioned in the dispute governing clause will be prescribed the place of suing the parties. The dispute settlement clause will carry details about the location of the parties, and the law is applied to the contracting parties, detailing the obligation of the parties towards each other and various factors. The purpose of putting this jurisdiction clause in the commercial contract is to stipulate the choice of law in various jurisdictions. There are various instances when the court can acquire jurisdiction based upon common law principles for example, if theirs any tortuous act that takes place in England then, according to the common law English Law can acquire the jurisdiction. Additionally, the Brussels I rule, which says that courts have the authority to hear and decide cases involving members of the European Union (EU) says, might be used to establish jurisdiction by the courts.The regulation also lays down a certain set of norms which provides the court to have jurisdiction over disputes between the various EU countries related to cross-border matters. Lugano Convention is also a treaty that governs the jurisdiction power of the courts and states the matters decided by the English courts between EU and EU countries is enforceable. The two most crucial elements in international law are the choice of law and the choice of jurisdiction. People from several countries are involved in international trade and contracts, raising the issue of the applicable jurisdiction. International trade, therefore, created a situation where the law of one country will be applied to another, leading to a conflict of laws. As a result, conflict of law, often known as private international law, is the area of law that deals with legal disputes involving foreign parties or those involving trusts, wills, and other such matters. These cases are private in some jurisdictions and public in other countries therefore, these lawsuits involve foreign elements that are dealt with according to the laws of different nations. Therefore, these sorts of cases gave rise to two questions whether the state where the plea is filed can entertain the cases or not, and secondly, the law of which states should be applied to the case. Therefore, the choice of law, the choice of jurisdiction, and the enforcement of the judgment are some of the variables that can be determined to determine the jurisdiction of different courts. These three ways are focused on the best interest of the parties and foresee the convenience in the dispute resolution.

Identifying the Choice of Law

Courts encounter various challenges while dealing with the conflict of law and while deciding their jurisdiction. First, is the determination of the choice of law. After assessing the choice of law the court can ascertain whether the court has jurisdiction over the matter or not. The rule of choice of law involves the two staged processes that are applying the rule of lex fori which means the law of the forum to all the procedural matters and the second rule is establishing the factors that directly link the case with the state laws such as establishing the law of nationality also known as Lex Patriae or the law of domicile which is known as Lex Domicilli. These two principles define the legal status of the parties and their capacity to constitute the case in the respective jurisdiction. There is a specific law that is related to the law of land known as Lex Situs and the place of occurrence of the event which is known as Lex Loci Actus.

Choice of law is a procedure in litigation dealing with the conflict of the law among the parties and laws of different nations. The purpose of this process is to ascertain whether a specific court has jurisdiction over the matter or not. The procedural stage of choice of law involves the ascertainment of three basic characteristics such as jurisdiction, characterization, and the choice of relevant laws. Jurisdiction means ascertaining the factor that the court chosen by the parties has appropriate jurisdiction over the case or not. The forum so appointed on the case in any particular court has the power to hear and then, decide the matter. After the specification of the jurisdiction, the court then categorizes the cases according to the law that can be applied. Then is also known as legal classification. The choice of law is the most relevant step as this can give rise to various complications if the right law is not applied. The choice of law in common law is dependable upon the law of the domicile and in civil law is determined by the rule of lex patriae. Various other rules help the courts identify the place of jurisdiction. The stage of choice of law involves the assessment of various factors such as whether the assets of the company are situated within the country or outside the country, and whether the assets are movable or immovable. Choice of law can help determine the validity of the contract and also helps to determine whether the contract can be enforced on the parties. Choice of law is an important step because it involves the consideration of the aspect that the law is not the same at every place. There has been a tripartite classification for the choice of law containing implied, express and objective categorization of the choice of law. It is followed in various countries including UK and India. However, this classification does not include the recognition of the role of statutes and international conventions in the field of international trade. The role of statutes, express choice, implied choice of law, determination of the court or forum , and place of the contract. The particular statutes can be applied to particular cases. The parties may express that their case is governed by any specific law and has specific obligations under that particular law. However, certain laws can restrict the rights of the parties such as the rule of the bill of lading that governs the laws related to the place of shipment. Next, the express rule constitutes the provisions that the parties have specifically set out in the contract regarding the jurisdiction of the dispute. However, in case there is no express provision, the intention of both the defendant and plaintiff to file the case in a particular jurisdiction constitutes the implied choice of the law. However, there exist contracts that specifically undermine the place of the contract, the place where the performance of the contract will take place, and in case of the issue where the forum could be formed.

Competence of the Court

In spite of various factors to determine the choice of law, the jurisdiction is decided based on the competence of the courts to deal with the cases. Common law operates according to the general rule that the jurisdiction depends upon the origin of the court proceedings. Originally, there was no provision relating to the sending service notice in the case outside the jurisdiction, and any clause in the contract was left at the mercy of the court to decide whether the dispute was within its jurisdiction or not. However, the common law has undergone various amendments relating to the choice of jurisdiction and its intervention in commercial law. The English courts have adopted the test of clearly more appropriate forums. However, the jurisdiction of the courts also depends upon the consent and the place of work performed by the parties. Various common-law countries can sometimes restrict the jurisdiction of the local courts to deal with matters with the aspect of reducing the burden of various litigation of the courts. Especially, in the US the court may declare themselves as forum non conveniens and can, therefore, dismiss the case. For example, in the case of Piper Aircraft v. Reyno , a suit was filed before the court of the United States on behalf of some Scottish parties that were killed in an airplane crash. In this case, the aircraft was owned by a British company, however, the pilot was Scottish and the dead people were also Scottish. However, after observing the facts of the case and after the realization that the remedy sought was not provided under Scottish law the United States declared the case as a forum non conveniens. The court in the US also has the power to dismiss the cases based on forum non-conveniens to reduce the burden of unfair foreign litigations. However, civil law countries cannot dismiss the case based on forum non conveniens. The European Court of Justice under the Brussels I regulations has made it clear that the allocation of the cases under the EU laws is binding on the courts. However, there is also an exception to the same the Brussels II regulation has allowed the transfer or dismissal of the cases based on forum non conveniens. Article 1 of the Brussels Convention states that it deals with all sorts of civil and commercial matters. In the case of Preservatrice Fonciere TIARD v Netherlands , the state wants to lay on an assurance made by a private company of C. However, C objected that the state doesn't have the jurisdiction to impose the assurance as the subject matter was neither civil nor criminal. Similarly, in the case of Verein fur Konsumenteninformation v. Henkel , a statutory body related to consumer protection known as VFK in Austria initiated proceedings against a German National. It was objected that the Brussels convention did not apply to the VFK as it is working for the objective and welfare of the public and public bodies working for the welfare of the public according to their respective laws cannot be held accountable under the Brussels regulation. However, it was held that the VFK is a private body and the subject matter of the dispute is for the welfare of the private agency therefore, under the Brussels Convention it can be held liable. In federal countries such as the United States, the United Kingdom, Switzerland, and Canada it is necessary to have specific rules relating to the jurisdiction of civil cases. In case of the dispute among which law to be applied to the case in which the foreign parties are involved, or the transaction taking place is between the foreign parties, the law of the forum also known as the rule of Lex Fori is applied to the applied. In many of the Anglo- American law the jurisdiction is decided upon the basis of domicile in the matter of family disputes the jurisdiction is decided upon the basis of the residence of the parties. The Hague Conference on Private International Laws had a great influence on the principle of choice of jurisdictions such as it states that jurisdiction should be decided upon the basis of the habitual residence of the parties. Many civil law countries now decide the matter according to the nationality of the person.

The competence of the English courts to hear and decide the matter depends upon the nature of the action or dispute. The nature of the actions can of two kinds either action in personam or action in rem. Action in personam is determined based on the defendant's presence in England. If the defendant is present in England at the time of committal of the offence he is liable to pay damages or he can be refrained from doing something that is against the law. Actions in rem refer to the actions against ships or aircraft present in England. Certain actions are also known as actions quasi in rem. These are the cases that are mostly related to marriage, divorce, and its nullity. These are quasi as they involve the determination of the status of the person and the statutory law that can be applied to him. To determine whether the action is action in personam several factors will be assessed such as the presence of the person, his submission to the court, the court’s power to send service in international jurisdiction, and the nature or actions of the company. However, action in rem is just the actions against the ships or aircraft, and a claim can be made against the owner of the ships if there exists any formal defect in the ship. This law is specified under the Supreme Courts Act 1981 . In 1998, the House of Lords in the case of the Republic of India v. Indian Steamship Company Ltd. held that the shipowner is liable to submit against the jurisdiction for any case against the ship. Jurisdiction according to the actions in personam deals with all sorts of actions whether they are under contract, tort, or under any common law except the acts of ships and aircraft. If the defendant is present in England, if the action started in England, if the defendant submits before the English courts, or in cases where the court allows to serve the defendant to the court then the claim is governed under the principle of action in personam. The action in personam and the jurisdiction are governed by the Civil Jurisdiction and Judgment Act 1982 which was incorporated in the United Kingdom Laws as per the Brussels Convention also known as the EC Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1998 also the Civil Jurisdiction and Judgemnet Act 1991 was enacted under the Lugano Convention or Convention of 1989 on the theme of Free Trade. According to the Civil Jurisdiction and Judgment Act 1991, the defendant’s presence in England at the time of serving the notice is an important factor to determine the jurisdiction, this also includes the traveler who has come to England for a casual trip will also be included in the element of presence. In the case of Colt Industries v. Sarlie, a company in New York got the decision of the court in New York against French men Who had stayed in a London Hotel for one night and was held to be enforceable. It was decided by the court that they had jurisdiction over the man as he stayed in the London Hotel. Similarly, in the case of Maharanee of Baroda v Wildenstein it was observed that both the parties to the contract are from France however, the contract was executed in England. The dispute here arises on the legality of the jurisdiction of England. Here, the question arises of the choice of the law as the contract involves a foreign element. English courts decided that they have jurisdiction over the contract because the contract was performed in England. This principle of presence is also known as exorbitant however it emphasizes the domicile of the person rather than his presence in the state. This principle was more emphasized about the EU and UK domiciliaries by the Civil Jurisdiction Act 1982. It focused on the residential status of a person. However, this principle is not exercisable over the person who has been kidnapped. However, in the above case of Maharanee of Borada v. Wildenstein, despite the courts' declaration that they have the authority to hear and adjudicate the case, the issue of the judgment's recognition and execution remains. It was noticed that Article 220 of the Treaty of Rome and the set of rules laid down in Article 25 of the Brussels Regulations state that the EU member of states has the right to choose of law, exercise their jurisdiction and recognize their judgment in the other EU states.

The Principle of Submission

Next, the principle of Jurisdiction in English Courts is submission. Submission can be made through the express agreement or the defendant's conduct. However, there are four possible scenarios as defendant accepts the service of the court, the defendant himself pleas to the merit of the case, the defendant enters into a contract with another party to submit to the court, or a claimant who is in another country sues defendant in any other foreign country. The court can also exercise his extraterritorial jurisdiction such as Rule 6.2 of Civil Procedure By sending a service notice, the court is able to possess jurisdiction over the absent defendant in accordance with UK rules. The House of Lords noted in Seaconsar Far East Ltd v. bank Markazi Fomhouri Islami Iran , that if the claimant submits sufficient written evidence and the court thinks that the problem is sufficiently severe, the court may exercise its jurisdiction. The House of Lords again stated that the contract between the shipping company and its defendant in Kuwait is governed by English law; as a result, the court can exercise jurisdiction over the matter, make a decision, and enforce its judgment in Amin Rasheed Shipping Corporation v. Kuwait Insurance Co., This is just one example of how the English Courts can obtain jurisdiction in many cases involving contracts. According to the Civil Jurisdiction and Judgements Act of 1982, the English Courts may take action or acquire jurisdiction. Under sections 41 to 6 of the act it is observed that if any claim is made against a person who is currently in any foreign nation but is the domicile of England then, the court can acquire jurisdiction. Next, in the case of Rosler v. Hilbery, it was assumed that the injunction should be granted by the courts as a remedy under its authoritative jurisdiction. The courts exercising their authority under the Civil Jurisdiction and Judgement Act of 1982 also have the authority to offer the claimant temporary reliefs. However, if the jurisdiction is to be acquired in the matters of dispute in the contract then certain factors are to be ascertained by the court which is the contract must have been made within the jurisdiction, the contract was made within England, was made by any agent who resides in England, the contract bears a clause of jurisdiction to be England or the contract is governed by the common law. The offeror from England made an offer to the individual resident in the Netherlands by a telex message, and the offeree recognized and accepted the offer through a telex message; as a result, the contract was deemed to have been made in England in the case of Entores v. Miles Far East Corporation.

Special Jurisdiction

There are various other claims such as related to a tort that comes under the category of special jurisdiction. This special jurisdiction clause is governed under Article 7(5) of the Brussels I regulation and is applicable to a special category of disputes arising among various agencies, branches, or other organizations. However, English courts do not recognize special jurisdiction they are known as general jurisdiction. Article 7(2) of the Brussels Regulations deals with special matters related to delict, quasi-delict, and tort claims. nder the case of Bier v. Mines de Potasse d’Alsace, the European Court of Justice held that in the cases of claims related to tort, the court of the place where the dispute arises would be having jurisdiction. Next, in the case of Kainz v. Pantherwerke , a Germany-based company that manufactures and sells bicycles in Austria. One of the boys in Austria, who was riding the bicycle fell from the bicycle and sustain injuries, he claimed that he fell from the bicycle due to some manufacturing defect in the bicycle and therefore, sued the selling company in Austria. The European Union's Court of Justice, however, ruled that the Austrian business cannot be held accountable because the Austrian company was just selling the bicycle however, the German court will be having jurisdiction because the product was manufactured in Germany. Next, a US pharmaceutical corporation headquarters in New York was the subject of the case Bristol - Myers Squibb Company v. Supreme Court of California, San Francisco County was sued for selling a drug named Palvix, which was alleged to damage the health of many people including residents and non-residents of California. Therefore, both the residents and non-residents sued the company in California however, the company was not domiciled in California, it was just selling the products in California. Hence, the question was raised that the selling company situated in California could be held liable for the claims of both the resident and non-resident of California. The US Supreme Court ruled that the firm will only be liable for claims made by California residents and not for claims made by non-residents in accordance with Article 8 of the Brussels Regulation. However, another that was observed in this case was that the company was not situated in California so the court will not be able to possess its general jurisdiction however, the EU rule will apply and the Court can possess the jurisdiction according to the rule of special jurisdiction of Brussels regulation.

Conclusion

Justice Story propounded the term “Private International law” and the term was adopted by various other authors such as Westlake and Foote. It is termed used for conflict between two laws of different states having the same subject matter. Therefore, this branch of law deals with problems having international elements. The term is also known as conflict of law. However, this is a bit wider term that emphasises solving the conflicts arising between different states. For example, a dispute arises between two people, one belonging to England and the other belonging to France. Conflict may therefore develop over the issue of where the lawsuit should be heard and which state court should have jurisdiction. Lex Domicilli, a Latin word that means "the law of the person's domicile," is another element that helps to ascertain court whether they can decide on any dispute. Lex Domicilli is the most common principle applied by the English Court to assess jurisdiction over various matters. The next, principle is Lex Loci Celebrationis, it is majorly applied in matrimonial cases and it is referred to s the law of the palace whether the marriage has been performed. The choice of forum or courts in such matters depends upon various factors such as where the marriage took place, where the couple resided, or where the issue arouse. Hence, jurisdiction in such cases is dependable upon the factual merits of the cases. Next, a principle known as Lex Loci Contractus governs the contract and dispute arising in the contract involving the foreign subject matter or foreign parties. This principle is used to assess the validity and legality of the contracts. Lex Loci Solutionis is the principle dealing with the place where the dispute occurs. For example, two-person contracts in Germany through the means the E-mail and decided to meet in Africa. Therefore, according to the applicability of the principle the forum having jurisdiction is Africa because the performance was decided to take place in Africa. Next, the principle is related to the disputes of property and states that where the property is situated the court of that place will have jurisdiction. This principle is known as Lex Situs. Various other principles are Lex Fori and Lex Causae, in which the government of the state has the sovereign power to make specific laws and extend the jurisdiction of the courts. Another law, Lex Patriae is based upon the nationality of the person in dispute. If the person is a national of England then, the English Courts will have jurisdiction over them. The Hague Convention, Treaty of Rome, European Union Convention or Lugano Convention, Brussels I Regulation, and Brussels II Regulation are the various others conventions that are based upon these principles and allow the member states to possess jurisdiction over various foreign disputes. These conventions and treaties allow the courts to hear, decide, and enforce their judgment. These conventions also help the courts in providing recognition of their judgment. Hence, these are various principles according to which the English Courts may acquire jurisdiction in various matters related to conflict of law. In a variety of international cases, the choice of law has been very easy with the help of these principles. It is observed that the UK courts have unilateral rules and are very restrictive however, various other countries such as US and EU states follow multilateral rules. Such as the rule of the presence of exorbitant is the rule under unilateral that is followed by the UK and not by the rest of the countries. 

Bibliography

Cases

Amin Rasheed Shipping Corporation v. Kuwait Insurance Co. [1983] UKHL J0707.

Bier v. Mines de Potasse d’Alsace [1976] ECJ 21.

Bristol - Myers Squibb Company v. Supreme Court of California [2017] U.S. 582.

Colt Industries v. Sarlie [1966] EWCA Civ J0607.

Entores v. Miles Far East Corporation [1955] EWCA Civ 3.

Kainz v. Pantherwerke [2014] EU 7.

Maharanee of Baroda v Wildenstein [1972] 2 QB 283. 

Piper Aircraft v. Reyno [1981] 454 U.S. 235.

Preservatrice Fonciere TIARD v Netherlands [2003] 1 ECR 4867.

Republic of India v. Indian Steamship Company Ltd [1993] A.C. 410.

Rosler v. Hilbery [1925] 1 Ch 250. 

Seaconsar Far East Ltd v. Bank Markazi Fomhouri Islami Iran [1993] 159 N.R. 139.

Verein fur Konsumenteninformation v. Henkel [2002] ECR 167.

Legislations

Brussels Regulation I 2012

Civil Jurisdiction and Judgment Act 1982

Civil Procedure Rules 1998

European Parliament and Council Regulations (EC) 593/ 2008

European Parliament and Council Regulations (EU) 1215/2012

Hague Conference on Private International Law 1893

Lugano Convention 2007

Supreme Courts Act 1981

Treaty of Rome 1957

Website

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