jurisdiction in personam in private international law

17 Saccharin Corporation v Chemische Fabrik von Heyden [1911] 2 KB 516 (CA). Emeritus Professor of Law, London School of Economics, [email protected]. Rules of jurisdiction determine when a court can hear a case. All it did was to put its valves into the stream of commerce, knowing that some would end up in California. However, it must be remembered that, in the case of the European Union, we have been considering only intra-EU casescases in which the defendant is domiciled in another Member State. 112 [2009] WASCA 53, (2009) 253 ALR 575 at [43]. . If no damages are awarded, the attorney gets nothing. In McIntyre Machinery v Nicastro,Footnote 32 a British company marketed its product, a scrap-metal-recycling machine, in the United States through an independent agent. Do not use an Oxford Academic personal account. Oxford University Press is a department of the University of Oxford. 8 Private International Law, 7th ed., p. 76. This is quite separate from the kind of jurisdiction we are going to discuss. Choose this option to get remote access when outside your institution. Hostname: page-component-7ff947fb49-j6tc7 At [37][38] Hasluck J appears to suggest that the imposition of a constructive trust should follow the finding of a breach of section 89(1) as consequential relief, relying on Muschinski v Dodds (1985) 160 CLR 583 at 613 for the bare proposition that a constructive trust can be imposed to preclude retention of beneficial ownership where that would be inequitable. In personam jurisdiction is one of the two forms of personal jurisdiction with the other being in-rem jurisdiction.. A court may exercise in personam jurisdiction over a person who resides in, maintains connections with, or is served notice of legal . However, it should be said that the rules of some other countriesfor example, those applied in France when EU law is not applicableare just as wide or even wider. Unlike in the European Union, in the US these limits apply to all defendants, not just those domiciled in another state. Two whistleblowers told Congress that IRS investigators recommended charging Hunter Biden with attempted tax evasion and other felonies, which are far more serious crimes than what the president . 02 January 2014. Here you will find options to view and activate subscriptions, manage institutional settings and access options, access usage statistics, and more. The principal place of business is the place where the most important business activities are carried out. 155 See Briggs (n 89) at 149 and Briggs, A, Recognition of Foreign Judgments: A Matter of Obligation (2013) 129 LQR 87 at 89Google Scholar; Dicey (n 5) at [14011]. The International and Comparative Law Quarterly It then explains . JURISDICTION This term represents the authority of a court, tribunal or other empowered person or persons LONG ARM STATUTE A law which provides a court in one jurisdiction with the power to have jurisdiction JURISDICTION IN REM Also known as jurisdiction over property. Could he sue the manufacturer in Austria? The defendants were the German manufacturer of the car (Audi), the importer into the United States (Volkswagen of America), the regional distributor (World-Wide Volkswagen) and the retail dealer (Seaway). Content may require purchase if you do not have access. See also Cheshire (n 5) at 485, which attempts to explain the cases on the basis that in exceptional circumstances the court might nevertheless enforce an equity against a third party, and that in the River Plate case it was justified because the third party's conduct was clearly unconscionable. If we were to compare these rules with those laid down in the Brussels Regulation, we would find that they were very similar. The rule for special jurisdiction in tort under EU law is set out in Article 7(2) of Brussels I (2012). jurisdiction Two cases are important on this issue. Cheng Shin filed a cross-complaint seeking indemnification from its co-defendants and from Asahi. 104 [2009] WASCA 53, (2009) 253 ALR 575 at [43][48]. It considers the objectives which these rules seek to achieve (protection of the rights of the parties and respect for the interests of foreign States) and the extent to which these objectives are attained. 50 ibid; Griggs (n 40) at [108]; supported by Dicey (n 5) at [23048]. 88 cf Dicey (n 5) at [23046]. English law applies the lex fori exclusively to determine whether an obligation exists which the court has jurisdiction to enforce. 131 ibid at 739, 741, relying particularly on Henderson v Bank of Hamilton (1894) 23 SCR 716. It was satisfied because, in addition to Ford's substantial contacts with Montana, the plaintiff was resident there and the accident occurred there. The US Supreme Court held that the Oklahoma courts had no jurisdiction over either World-Wide or Seaway. If the case had occurred in Europe, there would of course have been no problem: jurisdiction would clearly exist. 39 ibid at 255. For these reasons, plaintiffs in international cases will do all they can to get their case into an American court. Domicile is, as we have seen, the basis for general jurisdiction. 41 The Full Faith and Credit Clause of the Constitution (art IV, section 1). However, it has been interpreted more widely: indirect damage is also covered. All in all, it is probably fair to say that the EU does less to protect the defendant from the unfair assertion of jurisdiction than the United States, but it could also be said that the EU rules are clearer and give the parties greater certainty. 22 Helicopteros Nacionales de Colombia v Hall, 466 US 408, 414 (1984). Imagine a professional driver in Egypt, someone who drives tourists to see the pyramids, being sued in England after an accident in Egypt: how could he defend the claim by briefing counsel in England? It is demonstrated that the impact of the ECHR is limited to Article 6 (1) ECHR. Following successful sign in, you will be returned to Oxford Academic. It might be argued that such defendants do not need to defend because the resulting default judgment would not be enforced in Egypt. "corePageComponentGetUserInfoFromSharedSession": true, Ltd., 2014. It will perhaps be noticed that the English-law concept of a place of business comes very close to the EU-law concept of a branch, agency or other establishment in Article 7(5) of Brussels I (2012). If the English courts have jurisdiction over the anchor defendant on any ground, the other defendants can be brought in as necessary or proper parties. Added Corporate Author Edward Elgar Publishing. It is also interesting to consider what would have happened if Kainz had taken the bicycle to another Member State and the accident had occurred there. It first considers the space and time dimensions of private international law as well as three questions with which private international law is always concerned, namely: jurisdiction of the English court, recognition and enforcement of foreign judgments, and the choice of law. For example, if Asahi, a Japanese manufacturer, sells some valves to Cheng Shin, a Taiwanese company, for insertion into the latter's motorcycle tyres, and the tyres are then fitted to motorcycles made by Honda, another Japanese company, is Asahi subject to the jurisdiction of the courts of California if one of the motorcycles is involved in an accident in California due to a defect in the valve? It suggests explanations for the differences found. (b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim. The only relevant provision would be Article 7(2) of Brussels I. 18 See Dicey (n 5) at [23043] (citing Deschamps (n 6) at 863); Nygh, PE & Davies, M, Conflict of Laws in Australia (7th edn, LexisNexis Butterworths 2002)Google Scholar at [7.43]. Although of course a statute may always apply extraterritorially if Parliament's intention is sufficiently clearly demonstrated: Wanginui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581 at 601 per Dixon J. 159 Either where the plaintiff lost entirely in the foreign proceedings or where the plaintiff seeks to top up their damages award in subsequent English proceedings: Civil Jurisdiction and Judgments Act 1982, section 34; see Republic of India v India Steamship Co Ltd [1993] AC 410 and (No 2) [1998] AC 878. In multi-party cases, there must be complete diversity. This shows that, even in the United States, the place of the injury can be relevant. 11 Burnham v Superior Court of California, 495 US 604 (1990). July 19, 2022 12912 0 The article is written by Tejaswini Kaushal, a student at Dr. Ram Manohar Lohiya National Law University, Lucknow. When on the society site, please use the credentials provided by that society. Cambridge University Press (www.cambridge.org) is the publishing division of the University of Cambridge, one of the worlds leading research institutions and winner of 81 Nobel Prizes. It argued that there must be a causal relationship between its contacts with Montana and the accident. BMS did not challenge the jurisdiction of the California courts with regard to the claims of the California residents, but it did challenge it with regard to the claims of the non-residents. Since this is an outer limit, plaintiffs must also comply with the jurisdictional rules (generally known as long-arm statutes) laid down by the states, though in practice the outer limit may also become the rule. The result was a fire, which severely burned some of the family. The impact of the ECHR on jurisdiction in private international law is examined in this chapter. 28 See Murakami (SGCA) (n 24) at [20][21] citing Yeo (n 10) at [1.17]. The author is now Justice White of the Supreme Court of New South Wales. Kainz, an Austrian, bought one of its bicycles in Austria. Formatted Contents Note There was no evidence that either World-Wide Volkswagen or Seaway had any contacts with Oklahoma, or that any car they had soldexcept the plaintiffs vehiclehad ever gone there. 152 ibid (Ch) at [28], [29] (emphasis added). 34 Re Smith (n 8), cited in Nygh (n 18) at [7.43]. 107 (n 5) at [23048] (citations omitted). This right may be invoked by both plaintiffs and defendants in international civil proceedings. Although it might be recalled that the rule predates Duke v Andler and the Supreme Court relied on its predecessor in that case at 739. It thus confers general jurisdiction. 3 In the United States, there exist two separate court systems in every state: state courts and federal courts. They are modelled on the rules in the Brussels Regulation though since they apply as UK lawnot EU lawthey are unaffected by Brexit.Footnote 5. in personam. The jurisdiction of a country's court to interfere and intervene in disputes pending in a foreign jurisdiction. The EU rule in Article 8(1) of the Brussels Regulation (2012) (discussed below) would not have helped, because this applies only if there are multiple defendants, not multiple plaintiffs.Footnote 35 Since BMS was not domiciled in California, there would be no question of general jurisdiction. 14 Colt Industries Inc v Sarlie (No 1) [1966] 1 WLR 440 (CA). (Log in options will check for institutional or personal access. JSTOR is a digital library of academic journals, books, and primary sources. The US Constitution applies equally to all states and to citizens of all states. Total loading time: 0 124 See Dicey (n 5) at [14R020]. Drawing on nearly 1500 cases decided by courts in these countries and numerous national statutes, this book covers the four cornerstones of private international law: jurisdiction, choice of law . This is hardly surprising since they were modelled on them. This is a sound principle and the US Supreme Court has gone to considerable lengths to uphold it. 129 (n 5) at 485, citing Duke v Andler (n 13); Fall v Eastin 215 US 1 (1909). The first is Bristol-Myers Squibb Company v Superior Court of California, San Francisco County.Footnote 33 Bristol-Myers Squibb (BMS) was a US pharmaceutical company incorporated in Delaware with its headquarters in New York. When founded in 1952, the International and Comparative Law Quarterly (ICLQ) was unique. In the EU, the criterion for general jurisdiction is the domicile of the defendant.Footnote 7 Nationality is irrelevant. 12 Daimler AG v Bauman, 571 US 117, 137 (2014). 94 (n 8) at 208 (on the authority of Waterhouse v Stansfield). 42 The actual text of Article 14 appears to be limited to contracts. Render date: 2023-07-01T09:04:48.767Z Under EU (and English) law, jurisdiction would exist. 96 The power was first enacted in the Statute of Elizabeth 13 Eliz c 5. The crucial difference, however, is that in EU law this confers only special jurisdiction: it applies only as regards a dispute arising out of the operations of the branch, agency or other establishment. View all Google Scholar citations Most countries divide jurisdiction into two categories: general jurisdiction (sometimes called all-purpose jurisdiction in the US) and special jurisdiction (specific jurisdiction in the US). The latter had attended conventions in the United States (but never in New Jersey); it held US patents for its recycling technology; its US distributor structured its advertising and sales efforts in accordance with its direction and guidance wherever possible; however, no more than four of its machinesperhaps only the one which caused the accidenthad ended up in New Jersey. BMS had quite extensive contacts with Californiafor example, research facilities and sales representativesbut these were unrelated to the claim. Each system is complete in itself. A lawsuit seeking a judgment to be enforceable specifically against an individual person. International Shoe v Washington, 326 US 310 (1945). This refers to authority, power, a right or judgment 63 Indeed, when one reads up to the first sentence of the first full paragraph on page 843 of the report (n 6), it seems as if Parker J is about to conclude that England is forum non conveniens. 41 See also Re Hawthorne, Graham v Massey (1883) LR 23 Ch D 743 where the question was not competition between a holder of a prior equitable interest and a third party purchaser, but simply a dispute between two parties as to title to foreign land. See also at [23048] citing Griggs (n 40) at [112]. 161 Dicey (n 5) at [14R020], 673 n 74. With regard to the United Kingdom, we will consider only the rules applied in English courtsnot Scottish or Northern Irish courtsand only those rules concerning international cases, not those applied in intra-UK cases, that is cases concerning conflicts of jurisdiction among the three UK jurisdictions: England and Wales (one unit for these purposes), The rules applicable in intra-UK cases are quite different from those applied in international cases. In view of this, it might be more appropriate to compare the English rules of international jurisdiction with the rules in force in the individual Member States of the EU, rules which do not apply when the defendant is domiciled in another Member State. He was injured in the accident and his wife (riding behind him) was killed. 110 Hasluck J noted that the defendants may have declined to appear in order to avoid being held to have submitted to the jurisdiction for the purposes of subsequent enforcement proceedings: [2010] WASC 69 at [23]. 9 Norris (n 6) as applied in Deschamps (n 6). Render date: 2023-07-01T09:04:41.736Z Title Jurisdiction and private international law / Patrick J. Borchers. 22 Which gives rise to the difficult distinction between situations where the lex situs does not recognize the interest and positively excludes it: see Part IIIB below. Jurisdiction simpliciter non-resident defendant attornment. See also Schnaider v Jaffe (1916) 7 CPD 696 (Cape of Good Hope Provincial Division) at 7001, cited in Damberg v Damberg (2001) 52 NSWLR 492 (CA) at [140], and Dicey (n 5) at [9025][9029]. The accident happened in Montana and the victim was a resident of Montana. For discussion of characterization (in the context of constructive trust claims) see Grupo Torras SA v Al Sabah (No 5) [2001] CLC 221 (CA) at [121][122]. 25 Garnett, R, Substance and Procedure in Private International Law (Oxford University Press 2012)Google Scholar at [3.26]. 95 The defendants did not plead foreign law. 6 Eg Norris v Chambres (1861) 29 Beav 246, 54 ER 621; Deschamps v Miller [1908] 1 Ch 856 (Ch); Hicks v Powell (1869) 4 Ch App 741. Compare Dicey (n 5) at [30092], [30093]. After the tort is committed, Y becomes domiciled in Spain. Singapore August 23 2010 Introduction Section 6 of the International Arbitration Act allows the Court to stay legal proceedings in favour of international arbitration. It might be thought that the place of incorporation could be too tenuous a connection to justify general jurisdiction, since companies are sometimes incorporated in corporate havens like Panama, Liechtenstein or Delaware, even where all the company's activities will take place in somewhere entirely different. They were marketing their product in the whole of the United States; so they could not complain if they were sued in Oklahoma. The case concerned one of its products, a drug called Plavix. hasContentIssue false, UNILATERAL AND MULTILATERAL RULES OF JURISDICTION, This is an Open Access article, distributed under the terms of the Creative Commons Attribution-NonCommercial-ShareAlike licence (, Copyright The Author(s), 2021. In a case decided at the beginning of the twentieth century, a trade stand at a cycle show, occupied by a German company for nine days, was held to be sufficient.Footnote 16 In this case, the trade stand was manned by employees of the company; however, if a foreign company does business in England through an independent agent, that can also confer general jurisdiction,Footnote 17 though in this case there are further requirements mainly concerning the extent of the agent's authority.Footnote 18. See below. Table of Contents In Shami v Shami (n 3) at [37] Deputy Judge David Donaldson QC suggests that the Supreme Court misinterpreted the Californian judgment and thus proceeded on a premise of dubious accuracy. This article consists of a comparative study of the basic principles underlying the rules of jurisdiction in private international law in commercial cases in the law of the European Union, the United States and England. Diversity of citizenship exists where the parties are citizens of different US states or one party is a citizen of a US state and one is a citizen of a foreign State. The difference between this case and the Bristol-Myers Squibb case is that in the latter case the plaintiffs were not resident in the state of the forum and they had not suffered injury there. Lord Campbell LC dismissed the appeal: Norris v Chambres (1861) 3 De GF & J 583, 45 ER 1004 at 5845. It held that the courts of California had no jurisdiction over the claims of the non-resident plaintiffs.Footnote 34 It also said that the mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California did not allow the state to assert specific jurisdiction over the non-residents claims. By assumed jurisdiction is meant the taking of jurisdiction by the English court under the provisions of Rules of the Supreme Court, Order 11, rules 1 and 2, (hereafter referred to as R.S.C. 105 The defendants not having pleaded otherwise. In the United States, on the other hand, the defendant must always have a connection with the state of the forum. U.S Constitution, supporting by. This means while exercising jurisdiction over a defendant, the due process clause of the. In the United States, it is still the law that a court may obtain general jurisdiction over a natural person if he is served with a writ within the territory of the state in question, even if he is only there on a temporary visit.Footnote 11 This ought to be reconsidered one day: this form of jurisdiction (transient jurisdiction, sometimes also called tag jurisdiction) should be limited to claims arising out of, or related to, the defendant's activities in the state in questionin other words, to cases of specific jurisdiction. Because everything depends on the discretion of the court, the defendant cannot be certain in advance what the outcome will be. Since the car was neither designed nor manufactured there, and had not been sold to the plaintiff there, Ford claimed that the courts of Montana had no jurisdiction. 137 Edinger, E, Is Duke v Andler Still Good Law in Common Law Canada? (2011) 51 CanBusLJ 52 at 62Google Scholar. Moreover, it is interpretated by the CJEU, which is the court of all the Member States. One could thus argue that the court should have applied the rule that, in the absence of proof of foreign law, the lex fori applies. As to the first question, this article argues that the orthodox English approach is anachronistic. International Legal Materials. In the US, an award of costs normally covers only court fees. Barrister, Stout Street Chambers, Wellington, New Zealand, [email protected]. In the case of corporate defendants, it has now been settled that general jurisdiction lies only in a state where the defendant is essentially at home.Footnote 12 Save in exceptional cases, this means either the place of incorporation or the principal place of business.Footnote 13 So the test for corporate defendants is much the same as in the European Union. Consequential, indirect harm does not count. Indeed, this is how Cheshire and Yeo explain the results in Norris and Deschamps themselves: see n 45 above. In both the European Union and in Englandbut not in the United Statesthe rules concerning multi-party cases have an important effect on the way these jurisdictional rules apply in practice. This was the issue in Asahi Metal Industry v Superior Court of California,Footnote 30 decided by the US Supreme Court in 1987. Ord. 43 Smith Kline & French v Bloch [1983] 2 All ER 72, 74 (CA). 21 Re Courtney (n 7) at 250. 162 Briggs (2013) at (n 155) 89, arguing that section 34 Civil Jurisdiction and Judgments Act 1982 allows and requires this. Since London iswith the possible exception of New Yorkthe most expensive venue in the world for litigation, he may not be able to afford to do this. The reason, it is suggested, is not that American rules of jurisdiction are excessively wide, but rather that the advantages enjoyed by plaintiffs under American civil procedure are so much greater than those in Europe. 21 Hanson v Denckla, 357 US 235, 253 (1958). The original plaintiff, Gary Zurcher, was the person riding the motorcycle. 113 Cheshire (n 5) at 480; Pattni v Ali [2007] 2 AC 85 at [21] (PC). The US Supreme Court was badly split on this issue and no clear answer emerged from the decision.Footnote 31 Four judges said that it would be sufficient for the defendant to put its products into the stream of commerce knowing that some would end up in California; another four said that more was needed. While riding it in Germany, he had an accident which, he claimed, was due to a defect in the bicycle. That means for the purpose of determining whether the Israeli court had jurisdiction the catch-all provision in section 4(3)(c) applies, which provides that where an action is neither in rem nor in personam the question is whether the foreign court had jurisdiction recognised by the law of the registering court. This chapter provides an overview of the definition, nature, and scope of private international law. 109 Whether as a matter of substance or procedure. 16 Although on a jurisdictional challenge this will only need to be established to the standard of a good arguable case: Canada Trust Co v Stolzenberg (No 2) [2002] 1 AC 1 (HL) at 13. You do not currently have access to this chapter. 36 Cheshire (n 5), citing Beale, JH, Equitable Interests in Foreign Property (1906) 20 HLR 382CrossRefGoogle Scholar at 390. See also Schumacher v Summergrove Estates Ltd (n 1). Subject to minor exceptions, common law is state law. Even a small, family-run hotel might be unable to do this. In the EU and in England, it depends solely on such links: as long as the claim is connected with the territory of the forum, it does not matter if the defendant had no connection at all with that territory. If you are a member of an institution with an active account, you may be able to access content in one of the following ways: Typically, access is provided across an institutional network to a range of IP addresses. 87 (n 7) at 259. We use cookies to distinguish you from other users and to provide you with a better experience on our websites. In Bier v Mines de Potasse d'Alsace,Footnote 23 the CJEU interpreted this as covering both the place where the damage occurred and the place of the event which gives rise to and is at the origin of that damage.Footnote 24 However, in the subsequent case of Dumez v Hessische Landesbank,Footnote 25 the CJEU held that this applies only to harm directly suffered as a result of the wrongful act. Before 1873, Chancery had a doctrine equivalent to forum non conveniens (see Doss v Secretary of State for India (187475) LR 19 Eq 509 and White (n 23) 1045). It was incorporated in New York and distributed Volkswagen products to dealers in New York, New Jersey and Connecticut. 167 ibid at [26], [28] (emphasis added). in"unction) 133 cf Gordon (n 11), who generally endorses the result. jurisdiction in Singapore is entirely statutory, 13. the common law position as supplemented by statute in England. The American theory that for the courts of a state to have jurisdiction over a defendant from another state (or a foreign country) the defendant must perform some act by which he purposefully avails himself of the privilege of conducting activities within the forum state is excellent as a starting point, but its application in practice needs clarification. The basis of. In view of this, it is even more remarkable that the constitutional restrictions imposed by the US Supreme Court apply to all defendants, even those domiciled in (or citizens of) a foreign State. 136 Carpenter v Strange 141 US 87 (1890), cited in ibid at 10. "useRatesEcommerce": true This was Germany; so he could not sue in Austria. Details Author Borchers, Patrick J. Turning to the other two systems, we can see that there is a significant difference of approach between US and EU law. It might be wondered why there is so much criticism of the American system by lawyers in Europe. C2.P1In this chapter, and prior to Exit Day, the private international law of jurisdiction in civil and commercial matters was governed in part by a number of European Regulations and other instruments. Special jurisdiction is jurisdiction to hear a particular kind of claim. It said that this would have been the case only if the car in question had been either designed or manufactured in Montana or sold to the plaintiff there. 157 Edinger (n 137) 69 at 75; see also Pitel, SGA, Enforcement of Foreign Non-monetary Judgments in Canada (and Beyond) (2007) 3 JPIL 241Google Scholar.
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