Conflict of law

Judicial Jurisdiction

Introduction

 Jurisdiction of courts is the power of courts to subject a

particular persons or things to a judicial process.

 If a court does not have jurisdiction, it is not authorized to hear

and determine the dispute.

 Any judgment that is made with out having a jurisdiction will

be nothing more than a piece of paper.
 Components of Jurisdiction of Courts

 Jurisdiction of courts has three components

i. Judicial jurisdiction;
 whether Ethiopia (some court in Ethiopia) has the power to
adjudicate a certain case or not
ii. Material jurisdiction;
 which level or layer of court has the power to dispose the case. a high
court/first instance court, a state court/a federal court
iii. Local jurisdiction;
 Which a specific area of court from the same level or type of courts
has the power to adjudicate the case
 Of these three elements of jurisdiction, the primary concern of private
international law or conflict of laws is the first one, i.e., judicial
jurisdiction
 Why Courts Nee to Ascertain Judicial Jurisdiction

1. Avoidance of Forum Shopping

 Forum Shopping: is when a plaintiff goes for the more favorable
forum disregarding the defendant’s interest
 Rules on judicial jurisdiction, by requiring some kind of defined
contact between the plaintiff/the cause of action and the forum,
ascertain that plaintiff cannot shop the forum in a manner that suits
his interest and circumscribe the rights of the defendant.
2 . Avoidance of Inconvenience to the Defendant
 Rules on judicial jurisdiction help defendants avoid inconvenience
in the form of distant litigation.
 Rules regulating judicial jurisdiction, therefore, help defendants to
avoid cost, cultural, language, evidence…problems that could have
otherwise been artificially created by plaintiffs.
3. Avoidance of Unnecessary fight over Jurisdiction
 If plaintiffs have absolute freedom to select the forum, defendants
may move to transfer the venue or enter the motion of dismissal
objecting jurisdiction.
 It also help courts by focusing them on important points of
disagreement other that jurisdictional issues
4. Avoidance of the possibility of denial of Recognition and/or
enforcement out of the rendition forum
 Lack of judicial jurisdiction over a case results denial of recognition
and enforcement in another forum,
 In almost all countries of the world, one of the criteria for
recognition/ enforcement of a foreign given judgment is the exercise
of a valid jurisdiction by the court
 Classification of Judicial Jurisdiction
Non-personal jurisdiction/
Personal Jurisdiction jurisdiction in rem
 Is jurisdiction over persons  Here the action is against the
 Can result in a judgment thing and a relief is sought
imposing a personal liability or with respect to a thing itself,
obligation upon the defendant though a human person is
in favor of the plaintiff named as a defendant in the
 diminishing the personal rights litigation.
of a party in favor of another  No personal liability or
party obligation results from such a
 Example, a successful tort proceeding.
action resting on personal  Example: the plaintiff seeks
jurisdiction subjects all of the ownership over a certain
defendant’s nonexempt assets thing/property in which case
to execution. she is asserting the title against
anybody.
 Mechanisms of Checking Personal Jurisdiction
Special/specific/
General Jurisdiction alternative jurisdiction

 It is when the forum state looks at  When the forum state exercises
and bases itself on the relationship judicial jurisdiction by looking at
between the defendant and the
the nexus between the forum and
forum to establish judicial
jurisdiction in personam the nature of the dispute,
 The grounds in which the relation  From plaintiffs’ point of view, it
ship established includes widens their alternatives to sue the
nationality, domicile, habitual defendant.
residence and consent.
 It is dispute-blind type of
jurisdiction, based on affiliations
between the forum and one of the
parties without regard to the
nature of the dispute.
 Theories on Judicial Jurisdiction

Power Theory(Minimum Contact

Theory) Fairness Theory
 A court of a country assumes  A court should assume
judicial jurisdiction when it has jurisdiction only if doing so
the power over the defendant to provides a convenient, fair and
force him in to its judicial process.
just forum to the parties.
 The physical presence of the
 Assumption: a fair decision
defendant (even transient
given by any court will be
defendant) in the territories of a
state gives the courts of that state recognized and given effect
the power to adjudicate the matter anywhere in the world.
as long as he is properly served
with summoned
 Personal Jurisdiction in the Common Law

 The following are the primary bases of power for personal jurisdiction
in common law countries:
1. Presence/ transient jurisdiction:
 The fulfillment of the two elements i.e., the physical presence of the
defendant and serving her/him with a proper summon suffices for a
court to establish personal judicial jurisdiction.
2. Domicile:
 If a defendant is a domiciled or incorporated, in the forum, the court of
the forum state can adjudicate over the matter.
3. Agency:
 a defendant can be subjected to a jurisdiction of a court if she/he
designated a local person to be his agent for some specific task.
3. Consent/Submission:
 A person may consent to personal jurisdiction, thereby creating a
basis of power though she/he/it is neither present nor domiciliary
of the forum.
 This may arise from express agreement or conduct. There are the
following possibilities:
i. The defendant contracts to submit:
 It could be through including a choice of jurisdiction clause or
agreement after disagreement
ii. The defendant pleads to the merits:
 If the defendant pleads to the merits of the case, such as by disputing
liability for breach of contract, he thereby submits
 If a person, however, appears before a court of law for the sole
purpose of objecting the jurisdiction of the forum, it is never
regarded as submission.
iii. A claimant who is abroad sues a defendant in the local
forum.
 This gives the court jurisdiction over a counterclaim by the
defendant if it arises out of a matter which is related to the claim.
 Bases of special jurisdiction (in personam) in the
common law
 Two points need to considered here
1. If a court has sufficient ground to assume general jurisdiction in
personam, it would not consider this second item (i.e. special
jurisdiction).
2. There does not exist a uniformly applicable jurisdictional base for all
kinds of conflict matters to establish specific jurisdiction. The bases
that are often used for contractual disputes, for example, are different
from
Example
 For contractual disputes:
 Generally speaking, place of conclusion of a contract or/and place of
performance of a contract give a court valid jurisdictional base to
exercise specific jurisdiction.
 Tort/extra-contractual liability:
 There are two alternatives available and a third one, in some
countries, that considers the two grounds together.
i. Some states rely on place where injury occurred (tort act is
committed) as a connecting factor.
ii. Other states, attach importance to the place where the result of
the injury has occurred (place of result of tort).
 Matrimonial cases
 A case pertaining to the determination of marital status or
divorce, the role of domicile is so pertinent
Personal Jurisdiction in the Civil Law Legal System

 The transient rule of jurisdiction does not exist in the civil law
system.
 The Continental law system generally uses three bases for
establishing general jurisdiction in personam.
1. Nationality:
 Some civil law countries establish general jurisdiction in personam
if the defendant (or one of the parties) is a national of the forum
state
 The advocates of nationality claim that it is more stable and
ascertain than domicile because nationality cannot be changed
without the formal consent of the State of new nationality.
2. Domicile:
 Some civil law countries use domicile for general jurisdiction
purpose.
 The understanding of the concept of domicile in some of these
states is different from the one in the common law. In France,
for example, domicile means ordinary residence but a person
can have only one residence under French law.
3. Consent:
 In a similar fashion to that in common law countries, civil law
countries recognize consent as a jurisdictional base.
 The consent given could be express or implied
Bases of special jurisdiction (in personam) in the Civil
law countries

 Contractual disputes: the place where the contract is

performed
 Extra contractual liability: the most widely accepted rule
is that the country where the tort action took place will have
specific jurisdiction.
 matrimonial matters; in the civil law system is almost
similar with the common law approach and is based on the
domicile of the parties.
 Jurisdiction over Things (In Rem
Jurisdiction)
 The rules and solutions here in under in connection with jurisdiction
over property/things have applicability in both civil and common
law legal systems and there does not exist any substantial difference
to be examined separately.
 As a matter of general principle, a court exercises jurisdiction over a
thing when that property is found within the territorial limits of the
forum state.
 Immovable property: the universally recognized rule of jurisdiction
is the situs rule /exclusive jurisdiction/.
 Tangible movable (chattels) things:
 Subject to jurisdiction of the place where such is located.
 However, this rule may not be applied if the thing is casually within
the state or in transit. Some countries provide as an alternative
ground the place of domicile of the defendant in such situations.
 Intangible property:
 Poses a difficulty to which no a clear cut solution is provided.
 According to some, if the intangible interest is represented in a
document (a good example could be a negotiable instrument) the
state where the document is located has jurisdiction.
 Where such representing document cannot be present, however,
considering the relationship between the person and the forum
would be important.
 Limitations on the Exercise of Jurisdiction

 Jurisdiction may be limited by a number of factors like

constitutional considerations, treaty provisions and public
international law rules.
 Besides, there could be other self imposed limitations by the forum.
 Examples
1. Forum Non-Convenience Doctrine
 Forum non-convenience: A general discretionary power for a court
to decline jurisdiction on the basis that the appropriate forum for
trial is abroad and adjudication at the local forum is inappropriate.
2. Lis Pendis/pendency
 As there is a possibility for a case to be submitted to different courts in
different countries, a plaintiff might institute a fresh case in a court
while that same case is being litigated in a court of another country.
 Taking this in to account, courts of some states have a discretionary
power to grant a stay until the outcome of the case in the other court is
known.
3. Jurisdictional Immunity
 As instance, Persons that undertake diplomatic activities and personnel
of international organizations are exempted from suit in the host state.
• This is, therefore, a limitation that emanates from a binding law or
agreement.
 Assignment(Individual)
Find attached paper: Rationalizing Judicial
Jurisdiction in Ethiopia, Samuel Teshale
Read and review the paper by not more than 2 pages