1 3 in 1 Program (28 March to 2 April 2022)

Faculty of Law, Universitas Brawijaya

Private International Law From a

Comparative Perspective

Part I – International Civil Procedure

Session 2 – International Jurisdiction
 Instructor: Béligh ELBALTI (Osaka University)
2 International Civil Procedure
 Two main issues will be discussed here:
 International Jurisdiction of national courts

 Recognition and enforcement of foreign judgment

 The two subjects are closely interrelated:

 Jurisdiction in the international sense: jurisdiction to issue a judgment binding on the parties in other
countries.

 If a state adopts bases of jurisdiction that are considered excessively large (exorbitant
jurisdiction) its judgments will not be recognized and enforced abroad

 In many countries, the assessment of whether a foreign court is competent to render a judgment
between the parties (against a foreign defendant) will be either on the basis of or by reference to
its own rules international jurisdiction.

 During the preparation of litigation strategy, it is not sufficient to consider whether the courts of a
specific state has jurisdiction or not, but also it should be considered whether its future judgment
would be granted effect abroad  This is particularly the case when the foreign defendant does
not have (enough) assets in the jurisdiction where the judgment is to be issued.
3 Importance of the two subjects

 The effectivity of persons’ rights (individuals or companies)

engaged in cross-border activities would become illusory if:
Parties are not able to bring their disputes before
competent courts
If judgments rendered by those courts cannot be
recognized and enforced abroad when necessary
👉 Problem: Each country freely determines
① under which circumstances their courts will take
jurisdictions, and
②under which conditions foreign judgments can be
recognized and enforced
4 Status Quo
 Many experts have deplored the status quo of the regulation of
international jurisdiction and the recognition and enforcement of
foreign judgments at a global level:
The existence of exorbitant (excessive) jurisdictional rules: these
rules are the relics of an outdated conception of international
jurisdiction that places emphasis of the “sovereignty” of the state:
 in certain cases a dispute can be brought before a court that
is not necessarily the most appropriate one or sometimes have a
tenuous or no connection with the case
The disparity of the recognition and enforcement regimes: the
differences in the approaches and the requirements for the
recognition and enforcement of foreign judgments often result in
the refusal to recognize a perfectly valid judgment
5 Possible solutions
 At a Global Level: Create a worldwide framework for the exercise of international
jurisdiction and the recognition and enforcement of foreign judgments  efforts at
the Hague Conference on Private International Law  however, such efforts have
met only limited success:
 Adoption in 2005 of the Hague Convention on Choice of Court Agreements
(entered into force in 2015 between about 30 only) and in 2019 of the Hague
Convention on the Recognition and Enforcement of Foreign Judgments in Civil
and Commercial Matters (has not been entered into force yet)
 Efforts to create a general scheme for international jurisdiction are still going on
(see www.hcch.net).
 At a Regional Level: Certain regional efforts on the subject were successful: ex.
European Regulations on jurisdiction and the recognition and enforcement of foreign
judgments, notably Brussels I Regulation (and its 2012 recast in civil and commercial
matters; Brussels II bis Regulation on dissolution of marriage etc…)  so far no such
regional efforts are taken place in Asia
 At a Domestic Level: modernization of domestic law by following international
standards  codification of PIL rules (in the modern sense)
6 International Jurisdiction – Comparative Perspective
International jurisdiction consists of rules and principles
that determine the circumstances under which a court
will accept to hear an international dispute
The way international jurisdiction is organized depends on
the underlying conception that is adopted in the relevant
legal system
👉 Broadly speaking, we can distinguish between:
The Civil law conception of international jurisdiction
The Common law conception of international
jurisdiction
7 Civil law Countries
International jurisdiction, in a same fashion as domestic
territorial jurisdiction, aims at allocating international
disputes between different countries taking into
consideration
① Procedural convenience and
② The existence of a certain connection between the
parties or the dispute with the state.
8 Civil law Jurisdictions – The taking of Jurisdiction (1)
Jurisdictional rules in civil law countries are usually structured as follows:
General jurisdiction, usually based on the domicile of the defendant:
any dispute can be brought at the court of the domicile of the
defendant
Specific jurisdiction allowing that dispute to be brought against a
foreign defendant in certain cases when, depending on the nature
of the dispute, certain connection is established between the dispute
and the forum (i.e. the court before which the proceeding is
brought)  E.g:
Dispute relating to a contract  place of Performance of the
contract
Dispute relating to tort  Occurrence of tort
Dispute relating to immovable  Location of the immovable
etc…
9 Civil law Jurisdictions – The taking of Jurisdiction (2)
The are also other rules that are based on different justifications and serve different
purposes:
Rules that are based on the will (autonomy) of the parties  Choice of court
agreements
👉 Allow the parties to select the competent court to hear their dispute
Rules that provide protection of the weaker parties  consumers and employees
👉 Provide easy access to justice to the weaker party:
◆ The weaker party can sue or should be sued only before the court of its
domicile (consumer)/place where the work is carried out (employee)
◆ Limit the role of party autonomy (effect of choice of court agreements) when a
weaker party is involved
 Rules that serve the protection of the public interest of the state  Exclusive
jurisdiction
👉 Two consequences: ① this category of the dispute can be brought only before
the courts of state concerned; ② any agreement of the parties to take the dispute
before a foreign court will be deemed null and void
10 Civil law Jurisdictions – The taking of Jurisdiction (3)
Existence of excessive jurisdictional rules based on outed
conception of international jurisdiction: nationality based jurisdiction
in France, property based jurisdiction (regardless of the value of the
property) in Germany, Austria and some Nordic countries, Jurisdiction
based on the domicile of the plaintiff (forum actoris) ect…
Emphasis on predictability and the importance of rigid and formal
rules that the court is required to apply as faithful as possible
👉 Once the court take jurisdiction on the basis of one of the admitted
grounds, it cannot refuse to exercise it  no court discretion is
allowed.
Courts usually lack power to prevent one of the parties to pursue the
same proceeding abroad: courts are not granted the power to
order injunctions against fraudulent or bad faith litigants.
11 Common law Conception of International Jurisdiction
Common law (judge-made law) conception of jurisdiction is based
on the so-called “power theory”
Jurisdiction, as an act of sovereignty:
Cannot be extended beyond the geographical limits of a state,
but
 Can be fully exercised within those limits:
👉 Common law courts consider that they have an inherent power
to take jurisdiction against any person (jurisdiction in personam) or
thing (jurisdiction in rem) found within their jurisdiction
（※）This conception, which originated in England, expresses the idea
that courts of the Monarch represent its power to subject to its
authority any person found within its domain
12 Common law Conception – Implications (1)
The jurisdiction can be taken as of right only within the geographical
limits of the jurisdiction against persons or things present within
jurisdiction  Presence based jurisdiction
👉 Jurisdiction over defendant who are not present can be exercised only
based on discretion of the court if the court is convinced it is appropriate
to do so (this is usually made on the basis of statutory law).
There are no detailed bases of jurisdiction in common law (things are
different under statutes), jurisdiction can be established only by serving
the process to the defendant  when the defendant is not present
within jurisdiction, a permission to serve the process outside jurisdiction is
usually required (again on the basis of statutory law)
If the defendant is found within jurisdiction, the service of the process
can be made against him even when the presence is temporary for a
very short period (tag jurisdiction)  here the service of the process is
sufficient to establish the jurisdiction of common law courts
13 Common law Conception – Implications (2)
Common law courts can also assume jurisdiction on the basis of the
consent of the defendant, who can agree or submit to the jurisdiction
of common law court although they are not present
Common law courts are entitled to refuse to exercise their
jurisdiction and decline it if it appears that there is another available
foreign court more appropriate to hear the dispute  forum non
conveniens
If a common law court is convinced that it is more appropriate to
hear the dispute (natural forum), it has the power to order injunction
against the other party who is willing to pursue the dispute before
another court  anti-suit injunction
 Those injunctions - when ordered - have serious implications if they
are not respected by the person against whom they were issued:
contempt of court, loss of the right of defense etc..