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CHANAKYA NATIONAL LAW

UNIVERSITY

JURISDICTION OF COURTS UNDER


ENGLISH LAW
CONFLICT OF LAWS

Submitted to:
Dr. P.P. Rao

Submitted by:
Rajat Kashyap
Roll No- 1423
5th Year, 9th Semester

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Research Methodology

Aims and Objectives:

The aim of the project is to present a detailed study of Jurisdiction of Courts under English Law.

Scope and Limitations:

The project is basically based on the doctrinal method of research as no field work is done on
this particular topic. The whole project is made with the use of the secondary sources.

Method of Writing:

The method of writing followed in the course of this research paper is primarily analytical and
descriptive.

Mode of Citation:

The researcher has followed uniform form of citation throughout the course of this research
paper.

Sources of Data:

The following secondary sources of data have been used in the project-

1. Books
2. Websites

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Acknowledgement
It gives me incredible pleasure to present a research work on the case study of “Jurisdiction of
Courts under English Law”. I would like to enlighten my readers regarding this topic and I have
tried my best to pave the way for bringing more luminosity to this topic.

I am grateful to my faculty in charge Dr. P.P. Rao who has encouraged me to complete this
project. I would like to thank the librarian of CNLU for their interest in providing me ample
research material.

-Rajat Kashyap

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Table of Contents
INTRODUCTION ..............................................................................................................................5

CHOICE OF LAW ..................................................................................................................... 7


CHOICE OF LAW STAGE .......................................................................................................... 9
JURISDICTION OF THE COURTS ............................................................................................. 13
RENVOI ............................................................................................................................... 18
CONCLUSION ....................................................................................................................... 20
BIBLIOGRAPHY .................................................................................................................... 22

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INTRODUCTION

The private ordering and public regulation of private international law situations has never been
an easy task, and it is one to which legislatures generally have not paid a lot of attention.
However, our ‘open societies’ do no longer allow for this lack of interest. This is evident from
ongoing debates on a range of private international law matters that have attracted attention
beyond the originally somewhat secluded private international law scholarship and which
regularly receive media attention. These include, for example, private international law questions
regarding corporate social responsibility in relation to companies operating in other – developing
– countries, the free movement of workers, transnational child abduction, same sex marriages
and adoption and surrogate motherhood. The usual conflicts of interests underlying these types
of legal relationships and disputes arising from them gain complexity as a result of the
transnational dimension and raise pressing questions as to which (domestic) authority ought to
address these in a fragmented world with different applicable laws.

An intensely debated public interest case in which jurisdiction and the extraterritorial reach of
domestic private law was at stake is the Kiobel v. Royal Dutch Petroleum litigation. This class
suit concerned the question of whether the United States’ Alien Tort Statute allows for a cause of
action concerning human right violations against Nigerian citizens committed or supported by
Dutch, British, and Nigerian oil corporations in the Ogoni Niger River Delta. In short, the US
Supreme Court held that there was a presumption against the extraterritorial application of the
US Alien Tort Statute and that the present case did not sufficiently ‘touch and concern’ the
territory of the United States. It is needless to say that this rejection of the extraterritorial effect
of domestic law and the inherent rejection of jurisdiction has a tremendous impact on the
possibility to litigate human rights violations in the United States and to get private redress on
the basis of tort acts. 1

Related lawsuits regarding environmental pollution and its effect upon the local environment and
citizens have been brought in the Dutch and English courts, taking advantage of the international
jurisdiction system established in those countries, primarily by virtue of the Brussels I
Regulation. While these courts may be willing or are even obliged to accept international
jurisdiction, the resolution of these cases may be affected by the application of an apparently
innocent conflict rule, generally referring the subject-matter to the lex loci damni, i.e.the law of
the place where the damage is sustained as prescribed by the Rome II Regulation.In fact, in this
case the Dutch District Court did accept jurisdiction against the Dutch/English and Nigerian
defendants in relation to the environmental damage in Nigeria. 2 Applying Nigerian law as the
law where the damage occurred, the court rejected all claims against the Dutch/English mother
1 J. Basedow, ‘The Law of Open Societies – Private Ordering and Public Regulation of International Relations’,
360 R. des C. 9, at 82-133 (2013)
2 Kramer (n. 16), at 141-42.

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company, concluding that the oil spills were the result of sabotage and that - in short - the mother
company had not neglegted its duty of care according to Nigerian law. However, it also held that
the Nigerian subsidiary was liable for one of the oil spills as it had violated its duty of care to
take measures to prevent sabotage. The mother company could not be held accountable for this
lack of the daughter company in accordance with Nigerian law. Though most claims were
rejected, the adoption of jurisdiction and the award of damages in relation to one of the claims
against the Nigerian Shell subsidiary have been regarded as a breakthrough. This case also lays
bare that the approach of a common law country like the United States differs from that of a civil
law country like the Netherlands. While in the United States the primary concern seems to be the
extraterritorial effect of the law, the approach of the Dutch was to formally assess its
international jurisdiction based upon the applicable jurisdiction rules and, as the second prong of
private international law analysis, determine the applicable law upon the conflict rules.
It is against this background that the interconnection of global governance and private
international law becomes evident and, thus, the interest in revisiting the foundations of the
discipline. One may safely say that never have private international law scholars and
practitioners been so closely involved with those focusing on corporate law, human rights and
environmental law. At the same time, this example shows that transnational litigation is truly
becoming globally connected, or, as it has been labelled in US doctrine, multipolar.10 A
somewhat similar restriction to the extraterritoriality of the US Securities Exchange Act was
made in the earlier class action securities case of Morrison v. National Australia Bank.11 This
may well result and to some extent has already resulted in a draw of cases from the United States
to Europe and to Canada.3

3 .A. Whytock, D.E. Childress III & M.D. Ramsey, ‘Forward: After Kiobel – International Human Rights Litigation
in State Courts and under State Law’, 3 UC Irvine Law Review 1, at 1-8 (2013); R.P. Alford, ‘The Future of Human
Rights Litigation after Kiobel, 89 Notre Dame Law Review, at 1749-1772 (2014).

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CHOICE OF LAW

Courts faced with a choice of law issue have a two-stage process:

1. the court will apply the law of the forum (lex fori) to all procedural matters (including, self-
evidently, the choice of law rules); and

2. it counts the factors that connect or link the legal issues to the laws of potentially relevant
states and applies the laws that have the greatest connection, e.g. the law of nationality (lex
patriae) or domicile (lex domicilii) will define legal status and capacity, the law of the state in
which land is situated (lex situs) will be applied to determine all questions of title, the law of the
place where a transaction physically takes place or of the occurrence that gave rise to the
litigation (lex loci actus) will often be the controlling law selected when the matter is substantive,
but the proper law has become a more common choice. 4

For example, suppose that A who has a French nationality and residence in Germany,
corresponds with B who has American nationality, domicile in Arizona, and residence in Austria,
over the internet. They agree the joint purchase of land in Switzerland, currently owned by C
who is a Swiss national, but they never physically meet, executing initial contract documents by
using fax machines, followed by a postal exchange of hard copies. A pays his share of the
deposit but, before the transaction is completed, B admits that although he has capacity to buy
land under his lex domicilii and the law of his residence, he is too young to own land under
Swiss law. The rules to determine which courts would have jurisdiction and which laws would
be applied to each aspect of the case are defined in each state's laws so, in theory, no matter
which court in which country actually accepts the case, the outcome will be the same (albeit that
the measure of damages might differ from country to country which is why forum shopping is
such a problem). In reality, however, moves to harmonise the conflictual system have not
reached the point where standardization of outcome can be guaranteed.
Generally, when the court is to apply a foreign law, it must be proved by foreign law experts. It
cannot merely be pleaded, as the court has no expertise in the laws of foreign countries nor in
how they might be applied in a foreign court. Such foreign law may be considered no more than
evidence, rather than law because of the issue of sovereignty. If the local court is actually giving
extraterritorial effect to a foreign law, it is less than sovereign and so acting in a way that is
potentially unconstitutional.

4 .A. Whytock, D.E. Childress III & M.D. Ramsey, ‘Forward: After Kiobel – International Human Rights Litigation
in State Courts and under State Law’, 3 UC Irvine Law Review 1, at 1-8 (2013); R.P. Alford, ‘The Future of Human
Rights Litigation after Kiobel, 89 Notre Dame Law Review, at 1749-1772 (2014).

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The theoretical responses to this issue are: 5

(a) that each court has an inherent jurisdiction to apply the laws of another country where it is
necessary to achieving a just outcome;

(b) that the local court creates a right in its own laws to match that available under the foreign
law. This explanation is sustainable because, even in states which apply a system of binding
legal precedents, any precedent emerging from a conflicts case can only apply to future conflicts
cases. There will be no ratio decidendi that binds future litigants in entirely local cases.6

Once the lex causae has been selected, it will be respected except when it appears to contravene
an overriding mandatory rule of the lex fori. Each judge is the guardian of his or her own
principles of ordre public (public policy) and the parties cannot, by their own act, oust the
fundamental principles of the local municipal law which generally underpin areas such as labour
law, insurance, competition regulation, agency rules, embargoes, import-export regulations, and
securities exchange regulations. Furthermore, the lex fori will prevail in cases where an
application of the lex causae would otherwise result in a fundamentally immoral outcome, or
give extraterritorial effect to confiscatory or other territorially limited laws.

In some countries, there is occasional evidence of parochialism when courts have determined
that if the foreign law cannot be proved to a "satisfactory standard", then local law may be
applied. Similarly, judges might assume in default of express evidence to the contrary that the
place where the cause of action arose would provide certain basic protections, e.g. that the
foreign court would provide a remedy to someone who was injured due to the negligence of
another. Finally, some American courts have held that local law will be applied if the injury
occurred in an "uncivilized place that has no law or legal system." See Walton v. Arabian
American Oil Co., 233 F.2d 541 (2d Cir. 1956). If the case has been submitted to arbitration
rather than a national court, say because of a forum selection clause, an arbitrator may decide not
to apply local mandatory policies in the face of a choice of law by the parties if this would defeat
their commercial objectives. However, the arbitral award may be challenged in the country
where it was made or where enforcement is sought by one of the parties on the ground that the
relevant order public should have been applied. If the lex loci arbitri has been ignored, but there
was no real and substantial connection between the place of arbitration and the agreement made
by the parties, a court in which enforcement is sought may well accept the tribunal's decision.
But if the appeal is to the courts in the state where the arbitration was held, the judge cannot
ignore the mandatory provisions of the lex fori.

5
Kramer (n. 16), at 141-42.

6J. Basedow, ‘The Law of Open Societies – Private Ordering and Public Regulation of International Relations’,
360 R. des C. 9, at 82-133 (2013)

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CHOICE OF LAW STAGE

Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when
it is necessary to reconcile the differences between the laws of different states, and in the United
States between individual federated states. The outcome of this process is potentially to require
the courts of one jurisdiction to apply the law of a different jurisdiction in lawsuits arising from,
say, family law, tort or contract.

1. Jurisdiction. The court selected by the plaintiff must decide both whether it has the jurisdiction
to hear the case and, if it has, whether it is the most convenient forum (the forum non conveniens
issue relates to the problem of forum shopping) for the disposition of the case. Naturally, a
plaintiff with appropriate knowledge and finance will always commence proceedings in the court
most likely to give a favourable outcome. This is called forum shopping and whether a court will
accept such cases is always determined by the local law.

2. Characterization. The court then allocates each aspect of the case as pleaded to its appropriate
legal classification. Each such classification has it own choice of law rules but distinguishing
between procedural and substantive rules requires care.

3. The court then applies the relevant choice of law rules. It should be noted that in a few cases,
usually involving Family Law, an incidental question can arise which will complicate this
process.

The Choice of Law Stage7

The "traditional approach" looks to territorial factors, e.g. the domicile or nationality of the
parties, where the components comprising each cause of action occurred, where any relevant
assets, whether movable or immovable, are located, etc., and chooses the law or laws that have
the greatest connection to the cause(s) of action. Even though this is a very flexible system, there
has been some reluctance to apply it and various "escape devices" have developed, which allow
courts to apply their local laws (the lex fori) even though the disputed events took place in a
different jurisdiction. The parties themselves may plead the case either to avoid invoking a
foreign law or to agree the choice of law, assuming that the judge will not of his or her own

7
R. Michaels, ‘Territorial Jurisdiction after Territoriality’, in P.J. Slot and M. Bulterman (eds.), Globalisation and
Jurisdiction (2004) 105, at 113-15.

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motion go behind the pleadings. Their motive will be pragmatic. Full-scale conflict cases take
longer and cost more to litigate. However, the courts in some states are predisposed to prefer the
lex fori wherever possible. 8 This may reflect the belief that the interests of justice will be better
served if the judges apply the law with which they are most familiar, or it may reflect a more
general parochialism in systems not used to considering extraterritorial principles of law. One of
the most common judicial strategies is to skew the characterization process. By determining that
a claim is one involving a contract instead of tort, or a question of family law instead of a
testamentary issue, the Court can change the choice of law rules.

The rules of private international law which are explained herein below are incidental to law and
do not decide the law. In other words these are connecting rules which help the courts to decide
which law law should be applied when a party is a foreign party.

Status
Status is relevant for a wide array of issues. Self-evidently, unless the proposed litigant has legal
personality, there will be no jurisdiction. It will also be relevant to immigration, entitlement to
social security and similar benefits, family law, contract, etc. The choice of law rule is the law of
the domicile (lex domicilii) if the forum is common law, or law of nationality (lex patriae) or
habitual residence if the forum is civil law applies to determine all question of status and its legal
attributes. The lex fori determines the domicile, nationality or habitual residence, and applies that
law to establish an in rem set of rights and capacities. Thus, under some laws, the status of
illegitimate affects the rights of inheritance in the case of an intestacy, etc. As to corporations,
the choice of law rule is the law of incorporation (the lex incorporationis) for all matters of
capacity,9

Lex Domiclii

The lex domicilii is the Latin term for "law of the domicile" in the Conflict of Laws. Conflict is
the branch of public law regulating all lawsuits involving a "foreign" law element where a
difference in result will occur depending on which laws are applied.
When a case comes before a court and all the main features of the case are local, the court will
apply the lex fori, the prevailing municipal law, to decide the case.

But if there are "foreign" elements to the case, the forum court may be obliged under the Conflict
of Laws system to consider:

8Kramer (n. 16), at 141-42.


9J. Basedow, ‘The Law of Open Societies – Private Ordering and Public Regulation of International Relations’,
360 R. des C. 9, at 82-133 (2013)

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# whether the forum court has jurisdiction to hear the matter or not;
# it must then characterize the issues, i.e. allocate the factual basis of the case to its relevant legal
classes; and

# then apply the choice of law rules to decide the lex causae, i.e. which law is to be applied to
eachclass.

The lex domicilii is a common law choice of law rule applied to cases testing the status and
capacity of the parties to the case. The civil law states use a test of either lex patriae (the law of
nationality) or the law of habitual residence to determine status and capacity.

Lex Situs

The term lex situs (Latin) refers to the law of the place in which property is situated for the
purposes of the Conflict of laws. For example, property may subject to tax pursuant to the law of
the place of the property or by virtue of the domicile of its owner. Conflict is the branch of public
law regulating all lawsuits involving a "foreign" law element where a difference in result will
occur depending on which laws are applied. When a case comes before a court and all the main
features of the case are local, the court will apply the lex fori, the prevailing municipal law, to
decide the case. But if there are "foreign" elements to the case, the forum court may be obliged
under the Conflict of Laws system to consider:

# whether the forum court has jurisdiction to hear the case (see the problem of forum shopping);
# it must then characterise the issues, i.e. allocate the factual basis of the case to its relevant legal
classes; and

# then apply the choice of law rules to decide which law is to be applied to each class.
The lex situs is a choice of law rule applied to identify the lex causae for cases involving title to,
or the possession and use of property.

In law, there are two types of property.

# Real property is land or any permanent feature or structure above or below the surface.
Ownership of land is an aspect of the system of real property or realty in common law systems
(immovables in civil law systems and the Conflict of Laws).

# All other property is considered personal property or personalty in common law systems
(movables in civil law systems and the Conflict of Laws), and this property is either tangible or
intangible, i.e. it is either physical property that can be touched like a computer, or it is an
enforceable right like a patent or other form of intellectual property. 10

10 Kramer (n. 16), at 141-42.

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The term ulex sits is applied only to immovable property and lex loci rei sitae ought to be used
when referring to the law of the situs of movable property but this distinction is less common
today and is ignored for the purposes of the Conflict pages on the Wikipedia. Land has
traditionally represented one of the most important cultural and economic forms of wealth in
society. Because of this historical significance, it is vital that any judgment affecting title to or
the use of the land should be enforceable with the minimum of difficulty. Hence, compliance
with the lex situs should produce a judgment in rem.

The choice of law rules are as follows:

# immovables, by definition, do not move and so the identification of the lex situs will not
present a problem in the majority of cases; · because movables may be portable, the lex situs is
the law of the state in which the personalty is resident at the time the case is heard.

Lex Fori

In Conflict of Laws, the Latin term lex fori literally means the "law of the forum" and it is
distinguished from the lex causae which is the law the forum actually applies to resolve the
particular case. Sovereignty comes into being through a process of recognition by the
international community in which a de facto state is formally accepted as a de jure state and so
becomes the legitimate government with territorial control over a defined area of land and all the
people who reside within its borders. One of the most important sovereign powers of any
government is to enact laws and to define the extent of their application.

Some laws will apply to all the land and its peoples. Others will be of more limited application.
These laws will be applied through different bodies and institutions. Some will be formally
constituted as courts. Other bodies will exercise specific functions within quasi-judicial,
adminsitrative, religious or other frameworks. When a lawsuit is instituted and the court has
accepted that it has jurisdiction, the parties will normally expect the local laws to apply,
reflecting a presumption of territoriality ? that each state is sovereign within its own borders and
the laws of no other state or international body will apply extraterritorially or supranationally. If
foreign laws did apply, the state would be less than sovereign within its own borders. However,
as social mobility has increased and the internet encourages people to trade across national
boundaries, a need to recognise the relevance and importance of foreign laws to dispute
resolution has arisen. Hence, within the precise limits set by the lex fori, local courts may
sometimes apply one or more foreign laws as the lex causae if the local politics, public policy
and the dictates of justice require it. For a more complete explanation, refer to the pages on
characterisation, and choice of law. 11

11.A. Whytock, D.E. Childress III & M.D. Ramsey, ‘Forward: After Kiobel – International Human Rights Litigation
in State Courts and under State Law’, 3 UC Irvine Law Review 1, at 1-8 (2013); R.P. Alford, ‘The Future of Human
Rights Litigation after Kiobel, 89 Notre Dame Law Review, at 1749-1772 (2014).

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JURISDICTION OF THE COURTS

"Jurisdiction" is a word susceptible of several different meanings, but in the present account it is
used in its widest sense to refer to the question of whether an English court will hear and
determine an issue upon which its decision is sought. The position is complicated by the fact that
there are now four separate sets of rules determining the jurisdiction of English courts. First,
there are the rules under the European Community Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters (the Brussels Convention). Second,
there are the rules contained in a modified version of the Brussels Convention (the Modified
Convention). Third, there are the rules under the ECIEFT A Convention (the Lugano
Convention).Fourth, there are the traditional rules.

I. Jurisdiction Under The Brussels Convention

In broad terms, the rules on jurisdiction contained in the Brussels Convention apply where:
(a) The matter is within the scope of the Convention (a civil and commercial Matter), and
(b) The defendant is domiciled in a European Community State (i.e. in Austria, Belgium,
Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands,
Portugal, Spain, Sweden and the United Kingdom), I Even if he is not, certain provisions in the
Convention will stil1 apply, e.g. where the case involves tide to land in a Contracting State or
where there is an agreement conferring jurisdiction on the courts of a Contracting State,
Jurisdiction under the Convention depends on a specified connection with the forum, eg that the
defendant is domiciled there, Furthermore, if a Contracting State is allocated jurisdiction under
the Convention, the courts 1l1 that State have no discretion to decllI1e to take jurisdiction, at
least not in cases where the alternative forum is another Contracting State.

Jurisdiction Under The Modified Convention12

The Civil Jurisdiction and Judgments Act 1982 applies a modified version of the Brussels
Convention in cases where:

(a) The matter is within the scope of the Convention (a civil and commercial matter) and;
(b) The defendant is domiciled in the United Kingdom or the proceedings are of a kind
where jurisdiction is allocated regardless of domicile, e.g. the case involves title to land
in part of the UnitedKingdom,
(b) The defendant must be domiciled in the United Kingdom or the proceedings must be of a
kind mentioned in Article 16 of the 1968 Convention. The Modified Convention is only

12
R. Michaels, ‘Territorial Jurisdiction after Territoriality’, in P.J. Slot and M. Bulterman (eds.), Globalisation and
Jurisdiction (2004) 105, at 113-15.

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concerned in Brussels Convention cases with proceedings where jurisdiction is allocated
to the United Kingdom under Article 2 (the defendant is domiciled in a Contracting
State) or
(c) under Article 16 of the 1968 Convention (exclusive jurisdiction regardless of domicile).
With both of these articles the Convention confers international jurisdiction (i.e. on the
United Kingdom) and not local jurisdiction (i.e. on a part of the United Kingdom). Where
the Convention assigns jurisdiction to the courts in the United Kingdom under other
articles, it is necessary to regard it as allocating jurisdiction to the courts in a part of the
United Kingdom. In general, there is no problem where Article 5 applies, as this is
designed to give local jurisdiction. Most of the heads of Article 5 are phrased in terms of
the courts for a "place" in a Contracting State having jurisdiction. For example, Article
5(3) refers to the courts for the place where, the harmful event occurred; ascertaining the
"place" where the harmful event, occurred inevitably pinpoints a part of the United
Kingdom whose courts are to have jurisdiction. Where Articles 17 and 18 apply, as has
already been seen, there may be more difficulty in allocating jurisdiction to a part of the
United Kingdom.

The requirement under section 16(I)(b) that the defendant be domiciled in the United Kingdom
causes the usual definitional problems. In principle, a person is domiciled in England, Scotland,
or Northern Ireland, not in the United Kingdom. Section 41(2) of the 1982 Act solves this
difficulty by defining for the purposes of the Act whether an individual is domiciled in the
United Kingdom.13

This is only so if:

(a) he is resident in the United Kingdom; and

(b) the nature and circumstances of his residence indicate that he has a substantial connection
with the United Kingdom.

Showing this substantial connection is made easier by the introduction of a presumption


under section 41(6), according to which, where an individual (a) is resident in the United
Kingdom, or in a particular part; and (b) has been so resident for the last three' months or
more, the requirement as to a substantial connection is presumed to: have been fulfilled,
unless the contrary is shown. With corporations, section 42(3) basically provides that a
corporation has its seat in the United Kingdom if (a) it was incorporated and has its registered
office in the United Kingdom; or (b) its central management and control is exercised in the
United Kingdom.

13J. Basedow, ‘The Law of Open Societies – Private Ordering and Public Regulation of International Relations’,
360 R. des C. 9, at 82-133 (2013)

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Jurisdiction Under The Lugano Convention

In broad terms, the rules on jurisdiction contained in the Lugano Convention are applied in the
United Kingdom and in other European Community States where:
(a) The matter is within the scope of the Convention (a civil and commercial matter), and
(b) The defendant is domiciled in an EFTA State (i.e. Iceland, Norway or Switzerland). Even if
he is not, certain provisions in the Convention will still apply, e.g. where the case involves title
to Land in all EFTA Stare or where there is an agreement conferring jurisdiction on the courts of
an EFTA State,

When does the Lugano convention apply?

The Lugano Convention applies in relation to jurisdiction in the situation where the matter is
within the scope of .the Convention and the defendant is domiciled in a Contracting State (or
Article 16 or 17 gives jurisdiction to a Contracting State). This is the same as under the Brussels
Convention and presents no problem for EFT A Contracting States. However, Member States of
the European Community are Contracting States to both the Lugano Convention and the Brussels
Convention. Given that there are differences between the two Conventions, Member States of the
European Community need to know which Convention to apply. Article 54B of the Lugano
Convention deals with this. The effect of this provision, as far as EC Contracting States are
concerned, is that if a defendant is domiciled in an EC Contracting State the Brussels Convention
will still apply in matters of jurisdiction. However, if the defendant is domiciled in an EFT A
Contracting State The Lugano Convention will apply. The latter convention will also apply if
Articles 16 or 17 confer jurisdiction on the courts of an EFT A Contracting State. The provisions
in the Lugano Convention on lis pendens and related actions will apply if there are concurrent
proceedings in an EC Contracting State and an EFT A Contracting State.

Under Indian Law14

In India, rules relating to Jurisdiction in action inter parties are laid down in sections 19, 20 of
the code of Civil Procedure, 1908.

Section 19 is confined to suit for compensation for wrongs to person or movables. That section
reads as:

Suits for compensation for wrongs to person or movable Where a suit is for compensation for
wrong done to the person or to movable property, if the wrong was done within the local limits
of the jurisdiction of one Court and the defendant resides, or carries on business, or personally

14
R. Michaels, ‘Territorial Jurisdiction after Territoriality’, in P.J. Slot and M. Bulterman (eds.), Globalisation and
Jurisdiction (2004) 105, at 113-15.

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works for gain, within the local limits of the jurisdiction of another Court, the suit may be
instituted at the option of the plaintiff in either of the said Courts.

This section confined to torts committed in India an d to defendants residing in India. It does not
include within its ambit the suits in respect of foreign torts. Such cases are covered by section 20,
which overlaps this section. This section deals with inter partes suits.

This section reads as follows:

Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits
of whose jurisdiction

(a) The defendant, or each of the defendants where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or personally
works for gain; or

(b) Any of the defendants, where there are more than one, at the time of the commencement of
the suit actually and voluntarily resides, or carries on business, or personally works for gain,
provided that in such case either the leave of the Court is given, or the defendants who do not
reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such
institution; or

(c) The cause of action, wholly or in part, arises.

The explanation to this section says that a corporation shall be deemed to carry on business at its
sole or principal office in India or, in respect of any cause of action arising at any place where it
has also a subordinate office, at such place.

Thus, it is submitted that Indian Courts should not construe strictly the requirement of residence
in private international law cases, nor should it exercise jurisdiction over persons on whom
process has not bee served just because cause of action arises within jurisdiction. The Indian
rules of Private International Law are identical to the rules of English Private International Law.
Submission to the Court. Under English Law, A person may submit to the jurisdiction of the
Court either under an express agreement or by conduct. If a person to the court submits to the
jurisdiction then the court gets the jurisdiction to try the action and a decree or an order is passed
in such action will be valid internationally. The submission to jurisdiction cannot bring those
cases within the jurisdiction, which are otherwise outside the jurisdiction. A person may submit
to the court either by his/her conduct (conduct which is voluntary) or by a contract (by way of
express stipulation in the contract). 15

15B. de Sousa Santos, ‘Law: A Map of Misreading. Toward a Postmodern Conception of Law’, 14 Journal of Law
and Society 279, at 281(1987).

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Where as the Indian Law of submission, it closely follows English Law. If a person is outside the
jurisdiction, the court will have the jurisdiction on him only if he submits to the jurisdiction of
the court. In case, the foreign defendant does not submit to the jurisdiction of the court, then the
judgment delivered in his absence would be null and void. Mere appearance in the court amounts
to submission.

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RENVOI

The Doctrine of Renvoi is a legal doctrine which applies when a court is faced with a conflict of
law and must consider the law of another state, referred to as private international law ("PIL")
rules. This can apply when considering foreign issues arising in succession planning and in
administering estates.

The word “Renvoi” comes from the French “send back” or “return unopened”. The “Doctrine of
Renvoi” is the process by which the court adopts the rules of a foreign jurisdiction with respect
to any conflict of law that arises. The idea behind the doctrine is that it prevents forum shopping
and the same law is applied to achieve the same outcome regardless of where the case is actually
dealt with. The system of Renvoi attempts to achieve that end. 16

Single Renvoi

Countries such as Spain, Italy, and Luxembourg operate a “Single Renvoi” system. This system
refers to another jurisdiction’s choice of law rules. Where the matter arises in a jurisdiction such
as Spain, Italy or Luxembourg (A), those jurisdictions will consider whether their own domestic
law is the applicable law or if the applicable law is that of another jurisdiction (B). Where B’s
rules might return the issue to A, (the original forum court), the court will accept the first
remission and apply its own domestic laws.

For example, where a testator, who was a French national, was habitually resident in England but
domiciled in Spain, dies leaving moveable property in Spain, the court may need to
consider which legislative forum will apply to deal with the property under succession laws.

In this case, Spain being the law of the forum, i.e. where the property is situate, applies the law
of the deceased’s nationality, namely France and applies French law. French law observes the
law of the deceased’s habitual residence which is England. England however examines the
domicile of the deceased, which is Spain.

As two transfers took place, (from Spain to France and from France to England), Spain,
operating the Single Renvoi system, will not accept it back. Accordingly, the Spanish court being
the law of the forum, will apply the law where it was last left in the chain of referral i.e. with the
law of England and Wales.

Where both countries operate with either no renvoi system or single renvoi systems, there is a
potential problem.

16B. de Sousa Santos, ‘Law: A Map of Misreading. Toward a Postmodern Conception of Law’, 14 Journal of Law
and Society 279, at 281(1987).

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Double Renvoi

Unlike Spain, some countries such as England and France currently accept renvoi twice.
However in this system there can never be more than two remissions.

For example, lets consider the following case whereby a testator, an Irish national, habitually
resident in Spain but domiciled in Italy, dies leaving moveable property in France.

France, being the law of the forum (where the assets are situate) will examine the law of the
deceased’s habitual residence Spain and applies Spanish law. Spanish law observes the law of
the deceased’s nationality which is Italy. Italy, as a jurisdiction that only operates a single renvoi
system, will not accept the Double Renvoi and it is likely that in this case France will apply
Italian law.17

No Renvoi

Countries such as Denmark, Greece and the US do not accept renvoi.

Brussels IV – The EU Regulation On Succession (No 650/2012)

This new EU Succession law, effective from 17 August 2015 attempts harmonisation of
succession for all member states in determining the forum that applies to Succession law.
Ireland, UK and Denmark have opted out of this regulation, although interestingly the regulation
will still have an affect on how these countries will deal with signatory states and how signatory
states will deal with the non signatory states. 18

In relation to the Doctrine of Renvoi, the regulation attempts to provide that in all EU Member
States (other than Ireland, UK and Denmark), the doctrine is abolished other than in the case of
third party states. It also provides for testators to designate the law of their nationality as
applying to the whole of their estate. The regulation will only affect deaths on or after 17 August
2015 however an individual may elect the law under their will now to apply after that date.

17 J. Basedow, ‘The Law of Open Societies – Private Ordering and Public Regulation of International Relations’,
360 R. des C. 9, at 82-133 (2013)
18 B. de Sousa Santos, ‘Law: A Map of Misreading. Toward a Postmodern Conception of Law’, 14 Journal of Law

and Society 279, at 281(1987).

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CONCLUSION

The role of private international law in contemporary society, dig up the many open debates
concerning the challenges of private international law as a governance tool. To kick off,
Christopher Whytock’s article on ‘Faith and Skepticism in PIL: Trust, Governance, Politics, and
Foreign Judgments’ deals with a baseline of private international law, i.e. tolerance towards the
legal divergence to the extent that legal pluralism is taken for granted by private international
law. However, the examination of the grounds of refusal for the recognition of foreign judgments
laid down by recent legislation in the United States and the EU shows that despite the similarities
between both systems, there is room for divergence, which can be traced back to different
political approaches. Geert Van Calster also elaborates on those different approaches when
addressing ‘The Role of PIL in Corporate Social Responsibility’ in his contribution. It is clear
that while human rights seem a priority of modern societies, there is a clash between the values
defended at the home-base country and those practised abroad. In an attempt to fill this gap,
resort is made to codes of conduct and tort litigation, but the juridification of the international
society is putting too many constraints to aligning the ‘global society’ with global commons.
As highlighted by Yuko Nishitani, the debate is also intense as regards ‘Global citizens and
family relations’. However, the open society cannot help but empowering citizens and
acknowledge private autonomy as a means to pay due respect to each individual’s core values in
capital matters such as religion and culture. Multiculturalism is a feature of the open society and
as such, it is modifying many assumptions on values and basic standards of conduct. Migration
policies involving the political decision of either integrating or assimilating migrants are behind
the conflict of laws issue, as well as other ramifications of the need to grant social peace in a
given territory such as the one which is pushing States to take into account non-State law as a
consequence of legal pluralism arising from migration. Thereby, private international law norms
and techniques are being re-shaped with a view to reaching a compromise between the different
values at stake.

Private international law pays due respect to the policies behind labour and consumer markets as
well. While some countries put emphasis on access of individuals to those markets and thus the
protective principle is confined to ex-post litigation, others adopt a proactive approach and take
advantage of conflict of laws to put workers and consumers on an equal footing with their
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counterparts. The latter is the case in EU private international law as shown in the contribution
by Laura van Bochove on ‘Overriding mandatory rules as a vehicle for weaker party protection
in European PIL’. For it is not only about implementing a weaker-party-oriented conflict rule but
also protecting labour and consumer rights as public commons. In similar terms, Aukje van Hoek
addresses the role of private international law in relation to employment law in her article ‘PIL:
An appropriate means to regulate transnational employment in the EU?’ This author highlights
the inconsistencies of a factual approach in determining the applicable law to a contract of
employment. It makes practitioners draw up a large-scale map of the case at hand but in the end,
it misses the full picture by not taking into account the collective dimension of labour relations.
To conclude, the contributions in the present issue show that private international law is itself the
topic of a vibrant debate which helps to unveil the political considerations underlying human
behaviour and thus fine-tune private international law techniques to address particular global
governance challenges. Because, as Boaventura de Sousa Santos pointed out, law is not only
about normativity, but also ‘imagination, representation and description of reality’.

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BIBLIOGRAPHY
• A.S.Bell, Forum Shopping and Venue in Transnational Litigation, Oxford Private Int'l L
J., 1-5, (2003).
• Adrian bridggs, the conflict of law, 189 (2nd ed, oxford univ. Press, 2008).
• Pm North & Jj Fawcett, Cheshire and North's Private International Law, LexisNexsis
Butterworths, 605- 614, ( 13TH ED ,1999).
• System des heutigen roemische Rechts (1849), Vol.8, pp. 275. et seq. Or see J.D. Mc
Clean, Morris : The Conflict of Law, 14th Ed, 277-78 (Universal Law Publication, 2004).
[Morris]
• John Humphrey Carlile Morris, The Conflict of Laws, 287, (Stevens, 1971).
• Paras Diwan & Peeyushi Diwan, Private International Law, 551-552, (Deep & Deep
Publications, New Delhi, 1998).
• Ehrenzweig, Treatise on the Conflict of Laws, 211; Currie. Selected Essays on: Conflict
of Laws, Chapter 1
• Lawrence Collins, Essays In International Litigation and The Conflict of Laws, 379-382,
(Oxford University Press, 1996).
• Craig Scott, Torture as Tort: Comparative Perspectives on the Development of
Transnational Human Rights Litigation, 320-21, (Hart Publishing, 2001).
• Joseph H. Beale, Bartolus on the Conflict of Laws, Baker, 287, (Voorhis & Co. 1935).
• Abla J & Licence En Proit, Conflict Of Laws, Ch.6, 93, (Cavendish Pub. Ltd, 2002).
• Jason Chuah & Richard Earle, Statutes and Conventions on Private International Law,
235, (Routledge Cavendish, 2004).

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