What Is Jurisdiction in Private International Law

  • Beitrags-Autor:
  • Beitrags-Kategorie:Allgemein

When a case is brought before a court of a court, the first question is whether that court has jurisdiction to decide the case. Such a power is called competence. The rules of jurisdiction vary from country to country, making it difficult to deal with a controversy or dispute that is of interest to more than one country. Suppose a plaintiff (P) suffers bodily injury in country A as a result of the negligent conduct of defendant (D), who is a citizen of country B. In this example, P would choose the courts of country A to sue D, since the incident occurred there. On the other hand, D will prefer the courts of his country of residence, country B. Whether P or D succeeds in its claim to jurisdiction depends on the jurisdictional rules of countries A and B. The U.S. Supreme Court refused. He noted that there are two alternatives: either the damage must come from the contacts – a causal criterion – or it must relate to them.

This last criterion is not causal. She was satisfied because the plaintiff lived there in addition to the essential contacts between Ford and Montana and the accident had occurred there. The difference between that case and Bristol-Myers Squibb was that in the latter case the plaintiffs did not reside in the Forum State and had not suffered any prejudice there. This shows that even in the United States, the location of the infringement may be relevant. Of course, if the case had occurred in Europe, there would have been no problem: the jurisdiction would clearly exist. To varying degrees, the rules of private international law developed in Ireland will differ from those developed in other States and, in fact, there are probably as many systems of private international law as there are States and therefore national legal systems. The rules applicable in UK cases differ considerably from those applicable in international cases. They are based on the rules of the Brussels Regulation, but are not affected by Brexit, as they are considered British law and not EU law. Footnote 5 For a list of treaties and conventions governing the jurisdiction of the International Court of Justice in contentious cases, see the „Treaties“ section. The International Institute for the Unification of Private Law (UNIDROIT) is an independent intergovernmental organization based in Rome. UNIDROIT was founded in 1926 to examine the possibilities of harmonising and coordinating the private law of States and to prepare for the progressive adoption by the various States of uniform rules of private law. To this end, the first advantage is the American system of contingency fees.

Footnote 44 For example, a person who has been harmed in a tort case may – if they have a strong record and receive substantial damages – use the services of a first-class lawyer, even if they have no resources. Footnote 45 The second advantage is that the U.S. system of pre-trial disclosure, which is much more extensive than that of England or Europe, can greatly facilitate the gathering of evidence. This is particularly useful in cases of product liability. Third, the fact that jury trials apply in civil cases can result in much higher damages, particularly in cases of personal injury. For these reasons, plaintiffs in international cases will do everything in their power to bring their case before a U.S. court. The accused, on the other hand, will fight tooth and nail to prevent this. In both the European Union and England – but not the United States – the rules on cross-party cases have an important influence on how these jurisdictional rules are applied in practice. In the EU, Article 8(1) of Brussels I (2012) provides: 3 In the United States, each state has two separate judicial systems: state courts and federal courts.

Each system is autonomous. In the federal system, procedural courts are called „federal district courts“, interlocutory courts are the various circles of the Federal Court of Appeals, and at the top is the Supreme Court of the United States. State systems will vary from state to state, but there will also be court-level courts, intermediate courts of appeal, and a state high court. There is no appeal from the highest state court to the U.S. Supreme Court unless it is a question of federal law – including constitutional law. Subject to minor exceptions, the common law is the law of the state. Most areas of civil law – for example, contracts, tort, property, succession, marriage and divorce – are largely governed by state law. The decisions of the U.S. Supreme Court, which we will discuss shortly, have all been appealed (by certiorari) from a state Supreme Court to the U.S.

Supreme Court. This was possible because it was a constitutional question: was the assertion of jurisdiction by the courts of the state concerned consistent with the Fourteenth Amendment? Whether a case can be brought in state or federal court depends on what Americans call „subject matter jurisdiction.“ It is completely independent of the type of jurisdiction we are going to discuss. In general, all cases can be brought in state court, unless there is a provision that gives federal courts exclusive jurisdiction over the subject matter of the case. However, a case may only be brought before a federal court if a specific provision so provides. The two most important situations in which federal courts have jurisdiction ratione materiae are when the case is based on federal law and when there are differences in citizenship. Diversity of citizenship exists when the parties are citizens of different U.S. states or a party is a citizen of a U.S. state and a citizen of a foreign state. If both parties are citizens of foreign states, there is no diversity. In multi-stakeholder cases, there must be complete diversity.

This means that no party on one side can be a citizen of the same state as a party on the other. If state and federal courts have jurisdiction over the matter, the plaintiff chooses in the first instance, but if he decides to bring the case in state court, the defendant may (under certain conditions) have him transferred to federal courts if he wishes. 5Declarations made under article 36 of the Statute of the Permanent Court of International Justice and still in force shall be considered, as between the Parties to this Statute, as acceptance of the compulsory jurisdiction of the International Court of Justice for the remainder of the period to be made and in accordance with its conditions. The rules of jurisdiction determine when a court may hear a case. We deal with international jurisdiction – when a court is excluded from hearing a case because of international (or, in a federation, intergovernmental) elements. Important considerations in formulating the rules of jurisdiction are fairness to the plaintiff and defendant and respect for the rights of other countries. Footnote 6 The applicant must be given an opportunity to present his or her claim in a reasonable court; Otherwise, he would be deprived of the right to be heard. On the other hand, the defendant should not be compelled to defend the claim in an inappropriate court. If a court in another country can legitimately claim that it has a prior right to hear the case, this must also be taken into account. The trick is to find a way to balance these different considerations. This is usually done by balancing the relationship or connection between the forum and the defendant (sometimes the plaintiff) on the one hand and the events giving rise to the action on the other.

The California Supreme Court adopted a „sliding scale“ approach, in which the strength of the required connection between the location and the specific claim was relaxed if the defendant had extensive contact with the forum, even if these were not related to the claim. On that basis, it held that the rights of non-residents were competent. The U.S. Supreme Court rejected this approach, calling it „a vague and false form of general jurisdiction.“ It ruled that California courts lacked jurisdiction over the claims of non-resident plaintiffs. Footnote 34 It was also stated that the mere fact that other plaintiffs had prescribed, received and taken Plavix in California did not allow the State to assert its specific jurisdiction over non-resident claims. This result seems regrettable. Given that the issue must have been the same in all trials – if Plavix was harmful – it is inappropriate that it should have to be retried in every state where potential victims lived. (a) the interpretation of a contract; (b) any question of international law; (c) The existence of a fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of reparation for a breach of an international obligation. This means that if a co-defendant (the „main defendant“) is sued in the courts of his domicile, those courts automatically have jurisdiction over all the other defendants, provided that the claims against each of them are sufficiently closely connected, even if those other defendants have no connection with the court. As far as England is concerned, the broad scope of English rules of international jurisdiction is explained by their unilateral nature.