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Private International Law: Jurisdiction

Jurisdiction is on of three fundamental questions of PIL; whether court competent, has power to hear, determine claim
Jurisdiction means competence of court to hear, decide case (Collier); can be for actions in rem, actions in personam
Jurisdiction in personam: action brought against person to compel him to do particular thing, such as pament of debt or damages
for breach of contract, or to compel him not to do something (i!e! in"unction)
#ction in personam designed to settle rights of parties b$w themsel%es, i!e! action for damages
&our sets of rules go%erning e'istence of in personam "urisdiction of courts:
o (russels regime rules (Brussels Convention on Jurisdiction & Enforcement of Judgments in Civil, Commercial Matters)
o )odified rules under *uropean legislation Civil Jurisdiction and Judgment Act 1982, amended CJJ Order 21
o +ules under Lugano regime, deri%ed from !ugano Convention
o Rules under traditional regime, which apply in cases not regulated by other regimes (operati%e in Caribbean, *n)
,nder traditional rules three bases "urisdiction:
-efendant is present w$in "urisdiction at time of ser%ice of claim, and has been properl ser%ed
-efendant has submitted to court.s "urisdiction
/here has been service o& process, such as writ, out of "urisdiction under 0rder 11 of +ules of 2upreme Court
Presence: local court has "urisdiction where there has been proper ser%ice of writ or other claim form on - present w$in "urisdiction
*'ception where person lured b some tric3 into "urisdiction
Court ma e'ercise in personam "urisdiction o%er individual or corporation
Individuals: court has "urisdiction where indi%idual present w$in "urisdiction, properl ser%ed w$ writ in action in personam
o -oes not matter if onl on fleeting %isit, or if foreign national, domiciles elsewhere; as long as present in "urisdiction
Colt "ndustries "nc v #arlie $%o 1&' 45 compan obtained "udgment in 45 against &renchman; sought to
enforce in *n; process ser%ed on him at London hotel where he staed for one night; *n court had "urisdiction
Ma(aranee of Baroda v )ildenstein' both Ps, - li%ed in Paris; shared interest in fine art, racehorses; -
proprietor of art galleries in London, Paris, 45; P bought from - in Paris painting he thought was original; later
learnt it was cop; P issued writ claiming rescission of contract, repament of price; while - was %isiting #scot
+aces in *n, writ was ser%ed on him; - sought unsuccessfull to set aside writ; held law permitted P to ser%e
writ to - e%en though - was onl fleetingl on (ritish soil, such ser%ice not abuse of legal process
#ote: where court retains "urisdiction b$c of presence, it continues to ha%e "urisdiction e%en if person lea%es
orporations: com incorporated in Car must ha%e registered office in that countr; documents can be ser%ed at office
o #*1*$a& Companies Act of Bar+ados' notice or document ma be ser%ed on compan (a) b lea%ing it at, sending it b
tele' or b prepaid post or cable addressed to registered office of compan or (b) b personall ser%ing an director,
officer, recei%er, recei%er6manager, or liquidator of compan
o #t CL foreign companies regarded as present if the ha%e place of business in local Car countr; necessary that com
must have done business not merely w', but in aribbean country (must have business operating)
,ump(re- v Joll- .oger Cruises "nc' tourist to (arbados, passenger on Joll +oger, dies following boating
accident; 45 court awarded "udgment for o%er ,2 71million; question arose if ,2 court had "urisdiction to hear
matter; P argued court did ha%e "urisdiction, as - were present in 45 thru representati%es, who made boo3ings
for cruises on behalf of Joll +oger; all agents court do was ad%ertise business; court held tra%el agents could
not ma3e boo3ings w$o reference to Joll +oger and that arrangements as alleged b P b$w tra%el agents and -
were too tenuous to gi%e - presence in 45; court concluded that tra%el agents were not agents or
representati%es of -.s business; instead tra%el agents carring on their own business; accordingl (arbados
court too3 %iew that 45 court did not ha%e "urisdiction in matter
In addition to pro%ing - corporation doing business in local countr; P must also show that agent in local
countr operated from fi'ed place of business for definite period of time; court adopt fle'ible approach
/unlop 0neumatic 1-re Compan-' authori8ing agent to occup stand at motor show for nine das
sufficient to found "urisdiction
Presence by tric*ery: where P tric3s - into coming into "urisdiction, or - brought w$in "urisdiction after being 3idnapped,
ser%ice of writ or claim form on - will be set aside
o )at2ins v %ort( American !ands etc Co' dispute arose b$w respondent, com registered in *n, and appellant )r! 9at3ins,
its general manager in ,2; appellant was ,2 citi8en; + com commenced litigation in ,2, but un3nown to # issued writ
against him in which it claimed to reco%er monies had, recei%ed b him as trustee for com and retrained, con%erted to his
own use, inter alia; + in%ited # to *n to discuss, possibl settle matter; when # arri%ed, + ser%ed writ; # sought to set
aside, arguing he was induced; court set aside writ; abuse of process to induce b fraud
:eneral points:
4ote: rules on in personam "urisdiction purel procedural; courts not concerned w$ connections of parties to local countr; mere
ser%ice of writ or claim form on - gi%es rele%ant courts power to hear, determine actions (ma be foreigner onl passing thru and
cause ma ha%e not factual connection to countr) ; but countries still have discretion whether or not to hear case+ b
appling doctrine of forum non conveniens, court ma refuse to hear case where trial in local court is inappropriate
+eser%e true: court ma ha%e "urisdiction, but person not present in "urisdiction (can ser%e thru order 11 of 2C +ules)
Submission: -, who otherwise not sub"ect to "urisdiction of local court, is sub"ect if he %oluntaril submits to "urisdiction; submission
is deemed to ha%e occurred where:
ounterclaims: action commenced b P against -; P deemed to submit to an counterclaims instituted b - in that action
o 3nited Ban2 of t(e Middle East v Clap(am' - guarantors of loan to ,nited #rab *mirates compan of which the were
directors, shareholders; ban3, registered in ,nited #rab *mirates, issued writ against - claiming certain sum of mone,
sought summar "udgment in *n; - argued ban3 had earlier ta3en o%er compan.s assets wrongfull, managed business
to e'clusion of com, sought to ha%e com "oined as counterclaimants against ban3; held that b coming to *n to sue, ban3
had submitted to "urisdiction of *n court; accordingl court had "urisdiction to deal w$ an counterclaim connected w$
ban3.s claim
- who ac3nowledges ser%ice, contests case on its merits is deemed to ha%e submitted to "urisdiction of court
o Bo-le v #ac2er' P granted e' parte order to ser%e writ on -, +ussian; substituted ser%ice was effected b ser%ing writ on
his solicitors in London; - represented b counsel argued case on merit; held that - submitted to "urisdiction of court
since case was argued on merit
- submits to "urisdiction of court where he instructs attorne to accept ser%ice on his behalf or where he ac3nowledges ser%ice but
does not appl to court to decide that it has no "urisdiction (accepting b default ; places acti%e burden on -)
2ubmission to "urisdiction b agreement; if contract contains pro%ision, which elects forum as place of litigation, - deemed to
ha%e submitted to "urisdiction of court (Britis( Aerospace plc v /ee ,o4ard Co)
4ote: where - appear for sole purpose of contesting "urisdiction, he not deemed to ha%e submitted to "urisdiction of court
o .e /ulles5 #ettlement %o2' proceeding commenced in *n on behalf of infant against father who was resident in ,2;
included claim for maintenance; father, who was legall represented in court, contested "urisdiction; question arose if this
representation amounted to submission to "urisdiction; held he had not submitted; /enning !J: not see how anone can
fairl sa man %oluntaril submits to "urisdiction, when he at all times %igorousl protesting that it has no "urisdiction; if
he remains silent, court assumes he re"ects "urisdiction, not difference if he goes to court and protests to that effect
o 6oreign and Common4ealt( $.eciprocal Enforcement& Acts in Bar+ados' 211(<)a: =for purposes of this section court of
countr of original "urisdiction shall sub"ect to subsection > be deemed to ha%e "urisdiction? (a) in case of "udgment
gi%en in action in personam (i) if "udgment debtor, being - in original court submitted to "urisdiction b %oluntaril
appearing in proceedings otherwise than for purpose of protecting or obtaining release of propert, to contest "urisdiction
o ,unter v Cro4c(' - argued &lorida court did not ha%e "urisdiction since his appearance was solel of purpose of
protesting against "urisdiction of court; Adam J: regarded protest against "urisdiction as meaning - submitted to
"urisdiction (argument: if ou argue in local court that the do not ha%e "urisdiction ha%e ou not accepted "urisdiction)
onditional appearance: distinction b$w appearance solel to protest "urisdiction and entr of conditional appearance
o onditional appearance: - admits court has "urisdiction under its own law and that it is w$in court.s discretion to
e'ercise "urisdiction; if - enter conditional appearance he agrees to submit to "urisdiction in e%ent that court does not
e'ercise its discretion to refuse to e'ercise "urisdiction (1igerair "nc v #umrall)
Service out o& the ,urisdiction: court has "urisdiction where there has been ser%ice of process out of "urisdiction under 0rder 11 of
+ules of 2C; such ser%ice referred to as e7 8uris
)ain principle of 0rder 11 of +ules of 2C: ser%ice out of "urisdiction matter of lea%e determined b "udicial discretion, not a right
0rder 11 r<: pro%ides that ser%ices of notice of writ out of "urisdiction permissible w$ lea%e of court in certain cases; (1) where
relief sought against - domiciled, resident in forum; (<) where P see3s in"uncti%e relief; (>) where - is a necessar, proper part
to action; (@) certain contract actions; (A) certain tort actions
-here relie& sought against person domiciled or resident w'in ,urisdiction
Order 11 r$2&$1&$c&' in action begun b writ relief is sought against person domiciled or ordinaril resident w$in "urisdiction
.e !iddell5s #ettlement 1rusts' both husband, wife domiciled, resident in *n; wife too3 four children to 45 to reside w$ her;
husband obtained order directing wife to bring them bac3 to *n; process ser%ed upon her in 45; she failed to obe order,
subsequentl, writ issued sequestrating her propert in *n; wife appealed; appeal dismissed; held: although wife not in *n, court
had full "urisdiction to ma3e order as relief had been sought against person domiciled, ordinaril resident w$ "urisdiction
-here plainti&& see*s in,unctive relie&
Order 11 r2$1&$i&' pro%ides that ser%ice of notice of writ out of "urisdiction permissible when in action begun b writ in"unction
sought ordering - to do, refrain from doing anthing w$in "urisdiction, whether or not damages also claimed in respect of failure
to do or doing that thing
/o fall w$in rule, in"unction must be sought +ona fide in genuine dispute concerning whether some action b - in local
"urisdiction in question should be mandated or prohibited )atson and #ons v /ail- .ecord $9lasgo4 !td&
#ecessary or proper party
Lea%e also granted =if action begun b writ being properl brought against person dul ser%ed w$in "urisdiction, person out of
"urisdiction is necessar or proper part theretoB Order 11 r2$1&$8&
ertain contract actions
Lea%er permissible where action begun b writ bought against - not domiciled, ordinaril resident w$in "urisdiction, to enforce,
rescind, dissol%e, annul or otherwise affect contract or to reco%er damages or obtain other relief in respect of breach of contract,
being in either case, a contract that: (1) was made w$in "urisdiction, (<) was made b or thru agent trading, residing w$in
"urisdiction on behalf of principal trading, residing out of "urisdiction, or (<) is b its terms, implications go%erned b laws of
(arbados $Ord 11 r2$1&$f&
o Leave granted where contract substantially made w'in ,urisdiction; place of con formation determined b local law
o 9here parties present, contract made where parties signed rele%ant document or indicated consent; matter not if one,
both foreigners (,enr- v 9eopresco "nternational !td)
o 9here contract made b post, contract made where letter of acceptance posted (Adams v !indsell)
o Instantaneous communication, tele', contract made where acceptance of offer recei%ed (Entores v Miles 6ar East Corp)
o #ote: if contract made in countr of local court, but contains foreign "urisdiction clause, normall lea%e not granted
o Leave granted where contract made thru agent trading, residing w'in ,urisdiction on behal& o& principal
o 2ufficient that agent was means of communication to his principal abroad; matter not that agent did not ha%e authorit to
conclude contract
%ational Mortgage and Agenc- Co of %e4 :ealand !td v 9osselin' London agent of - (elgian firm, emploed
for purpose of obtaining orders, sent -.s price list to P; P in turn sent order b agent, accepted thru post b -.s
firm; held that ser%ice properl allowed out of "urisdiction on -.s firm as contract made thru agent in *n for he
negotiated its terms; irrele%ant that agent not actuall made contract
o Leave granted where contract wherever made has local law as applicable law+ law that go%erns con termed proper
law of con; court generall regard law chosen b parties as go%erning law
o ;ita 6oods 0roduct "nc v 3nus #(ipping Co !td' Lord 9right: proper law is law which parties intended to appl
o %ational C(emsearc( Corps v /avidson' law of this countr committed to principle of unfettered freedom of con; where
parties e'press intention that particular legal sstem shall go%ern rights, obligations that intention must pre%ail
o ontract w' ,urisdiction clause: where contract contains clause to effect that CC shall ha%e "urisdiction
o 3nter4eser .eederei 9m+, v :apata Off<#(ore Co' P, :erman com, agree to tow -.s oil rig from Louisiana to Ital;
agreement referred all disputes to London Court of Justice; tug forced to ta3e refuge in &lorida; each part alleged other
in breach of agreement; P sued - for damages in *n contending oilrig being towed was not of seaworth condition,
as3ing for lea%e to ser%e - in ,2; court granted permission saing it was polic to hold parties to their agreement
ertain actions in tort: ma grant lea%e to ser%e writ out of "urisdiction for tort committed w$in "urisdiction Ord11r2$1&$(&
"bstacle o& discretion: not onl must P show case falls w$in 0rder 11, must also show case fit, proper for courts to allow ser%ice out
Court has discretion+ P must demonstrate to court.s satisfaction that case appropriate for lea%e to ser%e process out of "urisdiction
(ias against granting permission to ser%e out of process
o Ba(amas "nternational 1rust Compan- !td v !is2 )-c2(off' court should be careful before writ to be ser%ed out of
"urisdiction? put foreigner, who owes not allegiance, thru incon%enience, annoance; court ought to be e'ceedingl
careful before it allows writ to be ser%ed out of "urisdiction
.ood &aith: for court to grant lea%e under 0rd 11, P must act in good faith; must be full, fran3 disclosure of rele%ant facts, particulars
in cases where application is made e7 parte
/orum conveniens: before court grants lea%e under 0rder 11, P must pro%e court is appropriate forum for hearing matter
Court ta3es account of: (1) whether le7 fori or foreign law is go%erning law; (<) whether foreign court also has "urisdiction; (>)
whether proceedings pending in foreign court; (@) location of e%idence, witnesses; (A) whether real purpose of proceedings is to
%indicate P.s legal rights, responsibilities or merel to humiliate -
Sub,ect matter ,urisdiction
/hree tpes of cases where competence of Caribbean court to hear, determine matter limited b sub"ect matter of dispute
%ctions based on public law: where public law of foreign countr assert so%ereignt of foreign power, court will not be
competent to ad"udicate rele%ant claim; local courts do not enforce such laws, parties cannot acquire rights under them
o #ancris v Bo4en' - submitted to "urisdiction of :renada CC; court held that it had no competence o%er sub"ect matter
b$c nature of action for reco%er of penalt or ta' for protection of foreign re%enue
0ocambi1ue rule: forum has no "urisdiction in actions directl in%ol%ing determination of title to, right to possess immo%able
propert in foreign countr, nor would it assume "urisdiction in actions for damages for trespass to such propert
o Britis( #out( Africa Co v Compan(ia de Mocam+i=ue' P, Portuguese com, sued -, *n com for damages in trespass to its
land in 2outh #frica; - disputed P.s right to possession of land; C0L held that it had no "urisdiction to hear action
o *'ception: where dispute outside rule.s scope, case will not raise question of sub"ect matter "urisdiction; court will hear
matter on personal "urisdiction
9here title to foreign land merel incidental to main dispute .e .oss concerned, in part, immo%able propert in
Ital; court e'ercised "urisdiction b$c main issue was, %alidit of will
9here personal obligation e'ists b$w parties, court of equit will e'ercise "urisdiction; .a>elos v .a>elos
husband fraudulentl bought land in :reece w$ w.s mone; *n court ordered husband to con%e propert to w
Local actions: in local action, foreign courts ha%e no "urisdiction to determine if rights gi%en under local laws ha%e been
infringed; forum has no competence o%er cause of action based on foreign law gi%ing purel local rights
1-+urn 0roductions !td v Conan /o-le' concerned w$ e'istence, %alidit of copright law; held that disputes arising under foreign
copright law fell e'clusi%el w$in "urisdiction of courts of countr that created rights under C+ laws