2. The Establishment of Adjudicatory Jurisdiction over States
2.3 The General Rule of Jurisdiction in Domestic Level
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identify the sovereign authority through analyzing the conduct of the defendant. For example, French courts were announced that immunity was based on ‗the nature of the activity‘ in many cases.215 While in some cases French courts applied ‗the purpose of the activity‘ as the basis for determining immunity. As in the case Entreprise Pérignon v. Gouvernement des États-Unis,216 Court of Cassation pointed out,
―An act is …… regarded as an act of public power if its purpose is the performance of a public service.‖
As matter of fact, in a case where a State was sued, the court must deliberate both the identity and the conduct of that State in order to determine whether the defendant State is immune from its jurisdiction. In the event the defendant ―shall not invoke the immunity of jurisdiction‖, the court is justified in exercise of its jurisdiction in international level. Subsequently, the court will also need to determine whether it has an eligible general jurisdiction on the basis of the jurisdictional connections of the procedural law.
2.3 THE GENERAL RULE OF JURISDICTION IN DOMESTIC
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territory. Consequently, the territorial control lays the foundation of sovereign States to establish jurisdiction.
Once this proposition is accepted, it is ready for the venerable rule that a defendant ought to be sued where he is domiciled (actor sequitur forum rei218), for the State is in good position to restrict such a defendant within its territory. Similarly, it was provided in Roman law that where the subject-matter of a suit was property, the proper court should be the place where the property was situated.219 The plaintiff had a choice whether to bring his action at the forum domicilii rei or forum rei sitae.
The design of the rule of jurisdiction is not in an arbitrary way. Usually, it should be found on the territorial-based jurisdictional connections, especially in those civil law countries that were deeply influenced by Roman law tradition.
(1) The Jurisdictional Rule in Civil Law System
The State is territorially conceived in international law, and the authority of the courts, being derived from the sovereign power of the State, is limited to the same territorial boundaries.220 For practical purpose, the design of jurisdictional rule should guarantee that the court is in a position to adjudicate a dispute and to give a meaningful judgment. It is difficult to imagine that a court will hear a dispute between the alien plaintiff and the alien defendant221 concerning a breach of contract, if the transaction and the cause of action had not been entered into the court‘s territory, since the dispute bears no relation to the court. The rules of jurisdiction of the Roman law demand for the links between the territory where the court is situated and the parties or the facts. These links between the territory and the dispute are termed rationes jurisdictionis or ‗jurisdictional connecting factors‘.
(a) Domicile and Residence
The concept of domicile refers to a person resides in a country without any intention of at present removing from it permanently. It includes two principal respects: the intention of permanent residence and the facts of residence. The domicile is considered to be a permanent home. Every person should have a domicile, so even
218 Actor sequitur forum rei is a legal maxim in Latin. It states that the plaintiff should follow the forum of the property in suit, or the forum of the defendant's residence.
219 See: C. F. Forsyth, Private International Law: The Modern Roman-Dutch Law Including the Jurisdiction of the Supreme Court, p. 170.
220 See: C. F. Forsyth, Private International Law: The Modern Roman-Dutch Law Including the Jurisdiction of the Supreme Court, p. 169.
221 The alien plaintiff and the alien defendant mean these foreigners who are neither domiciled nor resident within the court‘s territory.
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a person may have no home indeed, but the law nonetheless attributes a domicile to him. Domicile is ‗an idea of law‘ with a bit abstract. While the notion of permanent home can be interpreted largely in the light of commonsense principles, the same is certainly not true of domicile.222 The term domicile, by virtue of its abstract, has been written in legal documents to very little purpose. Therefore, in some legal instruments it was gradually replaced by the term ‗residence‘.
As mentioned above, domicile is that place where one actually resides with the intention of always remaining there. As a simplified concept, residence refers to the objective aspect of domicile. It, including ordinary residence and habitual residence, are increasingly used both by legislature and by the judiciary.223 The term residence has different meanings in different branches of law. Essentially, the concept of residence only requires the fact of presence, the state of being found in a country, rather than the intention of permanent habitation, so it resolves the identification difficulties existed in ‗domicile‘.
Both the domicile and the residence, as territorial factors, have played the legal effect of linking litigants and a court, thus providing a practical basis for the jurisdiction of a court.224
(b) Nationality
Nationality is the legal relationship between a person and a State.225 According to the international custom and principles of law generally recognized, it is for each State to determine under its own law who are its nationals.226 ‗Nationality affords the person the protection of the State and affords the State jurisdiction over the person‘,227 so the nationality constitutes an important ground for the court performing its jurisdiction.
A State may exercise the jurisdiction on the basis of nationality of the plaintiff or the defendant.228 The maxim holds that ‗actor sequitur forum rei‘ which means the
222 See: Dicey, Morris & Collins, The Conflict of Laws, 14th edition, Sweet & Maxwell (2006), p. 123.
223 See: Dicey, Morris & Collins, The Conflict of Laws, 14th edition, Sweet & Maxwell (2006), pp. 164~165.
224 See: 林欣：《论国际民事诉讼中当事人的住所与国籍》，载《法学研究》1989年第3期。
225 See: Vonk Olivier, Dual Nationality in the European Union: A Study on Changing Norms in Public and Private International Law and in the Municipal Laws of Four European Union Member States, Martinus Nijhoff Publishers (2012), pp. 19~20.
226 See: Article 1, Convention on Certain Questions Relating to the Conflict of Nationality Law, The Hague (12 April, 1930).
227 See: Kadelbach Stefan, ‗Part V: Citizenship Rights in Europe, Selected from Ehlers Dirk, European Fundamental Rights and Freedoms, Berlin: De Gruyter Recht (2007), pp. 547~548
228 See: 林欣：《论国际民事诉讼中当事人的住所与国籍》，载《法学研究》1989年第3期。
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plaintiff goes to the court of the defendant. Therefore, the common nationality between a court and a defendant underlies the standing reason for the court exercise its jurisdiction.
But the issue of State immunity is different. The essential structure of the actions regarding State immunity decides that the forum State and the defendant State cannot share the same nationality, so the jurisdictional principle ‗actor sequitur forum rei‘
has not been implemented here. In practice, in order to avoid the institution of State immunity, the plaintiff usually goes to the court of the defendant State to file a lawsuit.
In other respects of the action regarding State immunity, the effect of nationality on the determination of jurisdiction is faint and limited. In fact, reviewing the legislations on State immunity, no tangible provision demands for the court to establish its jurisdiction by the nationality.
(c) Loci Rei Sitae
Loci rei sitae refers to ‗the place where the property is situated‘, consisting of the location of object of the action and the location of the defendant‘s property. Generally speaking, a court would find it difficult to perform its jurisdiction, if there is no property to which the action is directed in its territory. In this case, even if the court exercised its jurisdiction according to other connections, it may be intractable to collect the evidence and to enforce its judgment later.
The Forum State
The Plaintiff The Defendant
State Different Nationalities No
Requirement
No Requirement
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The object of the action refers to the things to be settled in an action or the property to which an action is directed. Since the property is in dispute, the court where the property located may make it easy to ascertain the facts. So it is a reasonable choice that the proceeding is governed by the court where the property is located.
When it comes to the issues of State immunity, ‗the object of the action‘ lays the main foundations of a court in exercise of jurisdiction in international practice. This rule of jurisdiction is not merely a matter of Civil law system, even some Common law countries are also influenced by it. An obvious example is the US Foreign Sovereign Immunities Act of 1976. Its Article 1605 (a) (3) prescribes that,
―A foreign State shall not be immune from the jurisdiction of courts of the United States or of the States in any case:
……
(3) in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign State; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign State and that agency or instrumentality is engaged in a commercial activity in the United States.‖
The Article 1605 (a) (3) pointed out an important case in which the courts of US perform their jurisdiction over the foreign sovereign. The provision has been interpreted in an official document as follows:
―Rights in property taken in violation of international law are in issue.
The first category involves cases where the property in question or any property exchanged for such property is present in the US, and where such presence is in connection with a commercial activity carried on in the US by the foreign State, or political subdivision, agency or instrumentality of the foreign State. The second category is where the property, or any property exchanged for such property, is (i) owned or operated by an agency or instrumentality of a foreign State and (ii) that agency or instrumentality is engaged in a commercial activity in the US.
Under the second category, the property need not be present in
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connection with a commercial activity of the agency or instrumentality.‖229
It demonstrates that ‗property in the US‘ underlies the cornerstone for the courts of US performing its jurisdiction.
In fact, the place where the property is situated, namely loci rei sitae, is a very important connection for a court to establish its jurisdiction appropriately in an international proceeding.
(d) Cause of Action
A court in exercise of jurisdiction in the light of the cause of action is also a common phenomenon. Normally, a cause of action is a series of facts or circumstances that give rise to a litigation. There are many specific causes of action such as statutory causes of action, creation or breach of contract and torts, etc.
As to the commercial transactions, often involving contract business, a court would take contract-based action as the cause of action to determine jurisdiction. A widely accepted practice is that the court where a contract was performed had the competence in commercial transaction proceedings. The European Convention on State Immunity of 1972 elucidated the legitimacy of the exercise of jurisdiction by courts of the country where the contract is performed. Its Article 4 (1) provides that,
―Subject to the provisions of Article 5, a Contracting State cannot claim immunity from the jurisdiction of the courts of another Contracting State if the proceedings relate to an obligation of the State, which, by virtue of a contract, falls to be discharged in the territory of the State of the forum.‖
The prerequisite of a Contracting State performing the jurisdiction is that the performance of the contract, a kind of cause of action, located in the territory of the State.
(2) The Jurisdictional Rule in Common Law System
The contemporary legal systems of the world are generally divided into two basic systems: the Common law and the Civil law. The Common law system is different from the Civil law system in many respects. The most important feature of Common law system is that Common law is characterized by case law developed by judges, when giving decision in individual cases that have precedent effect on the future
229 HR Rep No. 94-1487, Jurisdiction of United States Courts in Suits Against Foreign States, 94th Cong. (9 September 1976) at 19 (reprinted in 1976 USCCAN 6604, 6618).
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cases.230 As a matter of fact, judicial practice plays an important role in the development of Common law. The Justice Oliver Wendell Holmes in his book The Common Law had pointed out: ‗The life of law has not been logic; it has been experience.‘231 Influenced by the long-term judicial experience, Common law developed a set of distinctive rules of procedure. On the issue of jurisdiction, the Common law system has shaped its own jurisdictional rules different from the Civil law system.
English law is the typical example in Common law system. According to the English law, the jurisdictional rules are classified as the jurisdiction in personam and the jurisdiction in rem, respectively, corresponding to different forms of action.
An action in personam232 aims to settle the right of the parties between themselves.
For example, an action for possession of tangible property, an action for damages for breach of contract, or an action for an injunction in tort case. The most obvious feature of the jurisdictional rules in actions in personam is their strictly procedural character, which implied that the courts have not been concerned with the connection that the parties to the dispute have with England. Anyone may invoke or submit to the jurisdiction, provided only that the defendant has been present in England and served with a claim form. For instance, the courts may perform the judicial authority, even if a foreign defendant who is only transiently in England and the cause of action may have no factual connection with England.
An action in rem233, originated in Roman law, was designed to vindicate a jus in rem, for example such as ownership available against all persons. Distinguished from in personam, the action in rem directs to property or ‗the entire world‘ instead of a specific person.
230 See: http://www.duhaime.org/LegalDictionary/C/CommonLaw.aspx, visited on 16th November, 2016.
231 See: Oliver Wendell Holmes Jr., The Common Law, 1st edition, Macmillan (1882), p. 1.
232 The action in personam is equal to the action against the person.
233 The action in rem is equal to the action against the thing.
Jurisdiction in
Personam Presence Service
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As some articles mentioned, the distinction between action in personam and action in rem is fundamental to determine where to file a lawsuit and how to serve a defendant. Technically, the action in rem must be filed where the property is situated and is only enforceable there.234 However, the only ‗action in rem existed in English law is that which lies in an Admiralty court against a particular ship or its cargoes.‘235
It must be admitted that currently traditional rules of jurisdiction still have an important effect on the litigation. But as to the field of State immunity, many of Common law countries enacted the statute laws which established the general rules of jurisdiction. To a certain extent, they offset the influence of traditional jurisdictional rules.
The US constructed the rules of jurisdiction over a defendant State in the Foreign Sovereign Immunities Act of 1976. The Article 1605 provides the general conditions the US courts exercise of its jurisdiction. Subject to the tradition of Common law system, it distinguished two cases in determining the jurisdiction according to the classification between action in personam and action in rem. On one hand, it regarded a defendant foreign State as a person; on the other hand, it set out the action against ship or cargoes separately. In spite of this, it did not observe traditional means to design the jurisdictional rules strictly. Indeed, the general rules of jurisdiction in Foreign Sovereign Immunities Act, to some degree, were influenced by the thought of Civil law system. An obvious example is in the commercial activity, the Article 1605 (a) (2) provides that,
―in which the action is based upon a commercial activity carried on in the United States by the foreign State; or upon an act performed in the United States in connection with a commercial activity of the foreign State elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign State elsewhere and that act causes a direct effect in the United States.‖
Firstly, Article 1605 (a) (2) clarified that the exception to immunity, ‗a foreign State engages in a commercial activity‘, underlay the competent jurisdiction of US courts in international level. Then, it demonstrated that the territorial links with the US established the foundation for US courts performing the jurisdiction in domestic
234 Henry Campbell Black, Black’s Law Dictionary, 2nd edition, West Publishing Company (1910), p. 606.
235 Cheshire, North & Fawcett, Private International Law, 14th edition, Oxford University Press (2008), p.
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level. Here, it shook off the constraints of the traditional jurisdiction in personam of Common law system, and emphasized the significance of territory for the determination of jurisdiction.
Besides, in this Article ‗a direct effect‘ is also used as a basis for US courts performing jurisdiction. It can be seen as a strategy for expanding jurisdiction. By this means, on the issue of State immunity relating to the commercial activity, US courts was granted a wide discretionary power to determine whether to exercise jurisdiction via interpreting what is ‗a direct effect‘. But this long arm jurisdiction does not comply with the principles of the design of jurisdiction, whether in Civil law system nor in Common law system. It embodies a kind of unilateralism on the issue of jurisdiction.
Also, UK formulated the rules of competence over a defendant State in its State Immunity Act of 1978. The Act did not simply divide the legal proceedings into action in personam and action in rem. In fact, it sets up various jurisdictional rules according to different exceptions to immunity. Although these rules are sketchy, most of them share one thing in common: pay attention to the function of territorial connections in determining jurisdiction. For instance, pursuant to Article 3 (1) of State Immunity Act, a State is not immune as respects proceedings relating to,
―(a) A commercial transaction entered into by the State; or
(b) An obligation of the State which by virtue of a contract (whether a commercial transaction or not) falls to be performed wholly or partly in the United Kingdom.‖
The Article 3 (1) (b) demonstrates that a contract to be performed in the territory of UK is necessary for UK courts exercising jurisdiction.
But the influences of Common law tradition have not disappeared. In Admiralty proceedings, especially the action against ships used for commercial purposes, UK courts have the competent jurisdiction over a foreign State, if
―(a) an action in rem against a ship belonging to that State; or
(b) an action in personam for enforcing a claim in connection with such a ship, if, at the time when the cause of action arose, the ship was in use or intended for use for commercial purposes.‖
In its wording, the Article 10 (2) does not mention the territorial factors. Actually, it conveys very traditional Common law thoughts on the issue of jurisdiction.