Categories of Jurisdictions
The question to be answered here is: in what circumstances does any given state confer jurisdiction on its courts? Is jurisdiction determined by the nationality of the parties or one of them,or their domicile,or their residence,or their presence within the country,or the place of performance of the obligation in issue? Every country answers the question in accordance with the view it takes of the fundamental purpose of its jurisdiction.
2.1 Territorial Jurisdiction vs.Personal Jurisdiction
Within civil law system,there exists territorial jurisdiction vis-à-vis personal jurisdiction,depending on the view a country takes of the vital purpose of its jurisdiction.The territorial jurisdiction (also territoriality principle) gives legal authority for a country to exercise jurisdiction in a case,due to location of the parties and the dispute,whose rationale is that a court of a given country possesses jurisdiction over any person,any object and any transaction within its territory.Most civil law countries,those of German law family in particular,follow the approach of territorial jurisdiction,where the principle “actor forum rei sequitur,” that is,the plaintiff must go to the defendant’s forum,is widely recognized.4 In other words,the defendant’s,not plaintiff’s,domicile,residence,or presence is the test for the competence of a court to entertain an action.
Personal jurisdiction indicates that a court of a given country possesses jurisdiction over a case if only the parties or one of the parties are its national(s).The rationale is that the primary task of the courts of a country is to serve its own nationals.This is the starting point of French law.5 French courts always have the jurisdiction where the plaintiff is of French nationality,even though the defendant may be an alien neither domiciled nor resident nor present in France,and even where the facts on which the claim is based have no relation to France.When an alien wishes to sue a French national the defendant can always demand that the action be brought in a French court.French here claims exclusive jurisdiction,even where the basic facts are not in any way concerned with France,and irrespective of the parties’ domicile and residence.Finally,if both parties are aliens,the rule is that French courts have no jurisdiction to entertain the action.
2.2 In Personam Jurisdiction vs.In Rem Jurisdiction & Long Arm Jurisdiction
Common law distinguishes between actions in rem and actions in personam.Though both terms are of Roman origin,their meanings differ from that of the same words in Roman and modern civil law.Common law lawyers call actions in personam all those actions which aim at settling the rights of the parties as between themselves,e.g.,an action for damages for breach of contract,an action for an injunction in a tort case,or an action for possession of tangible property.It makes no difference whether they spring from an obligation or from an ius in rem: the owner’s action for the delivery of chattels detained by the defendant,or for the recovery of land,or any proceedings aiming at settling questions of title as between the parties,are actions in personam.6 Generally speaking,in an action in personam a court of a common law country has jurisdiction if at the time when the writ is served the defendant is present in its territory.Mere physical presence is sufficient.He need not be domiciled or ordinarily resident in this country.
Actions in rem,on the other hand,are all those which aim at a decision effective for and against everybody.Some of these decisions are of a constitutive character insofar as they create a new legal situation or extinguish an existing one,such as a divorce decree,a decision for revocation of a patent,or an order of discharge in bankruptcy; others merely declaratory,such as a decision establishing the validity of a will,the nullity of marriage,or the character of a piece of land as part of a highway.An action in rem means that the right jurisdiction would be where the property actually is or where the parties are domiciled.7
In the United States jurisprudence,long arm jurisdiction is a statutory grant of jurisdiction to local courts over foreign (“foreign” meaning out-of-state) defendants.A state’s ability to confer jurisdiction is limited by the Constitution.This jurisdiction permits a court to hear a case against a defendant and enter a binding judgment against a defendant residing outside the state’s jurisdiction.That is,without a long arm statute,a state’s court may not have personal jurisdiction over a particular defendant.
Generally,the authority of a court to exercise long arm jurisdiction must be based upon some action of the defendant which subjects him or her to the jurisdiction of the court.In the United States,some states’ long arm statutes refer to specific acts,for example,torts or contract cases,which a court may entertain.Other states,like California,broadly grant jurisdiction “on any basis not inconsistent with the Constitution of this state or the United States.”
The use of a long arm statute is usually constitutional where the defendant has certain minimum contacts with the forum state and there has been reasonable notice of the action against him or her.Since the 1960s,several states have enacted one of the two types of long arm statutes: (a) the first type enumerates fact situations that submit an individual/corporation to the forum’s jurisdiction; (b) the second type extends the forum’s jurisdiction to the extent of the constitutional limitations (of the 14th amendment).(https://www.daowen.com)
It should be noted that the U.S.practice of “long-arm jurisdiction” which the Chinese government condemns refers to a different concept,as is reflected in the White Paper on “The Facts and China’s Position on China-US Trade Friction” released by the Chinese government in September 2018.In this document,a subsection titled “long-arm jurisdiction and sanctions against other countries based on US domestic laws” under the main section titled as “the trade bullyism practices of the US administration”,contains the following paragraph:8
“Long-arm jurisdiction” refers to the practice of extending one’s tentacles beyond one’s borders and exercising jurisdiction over foreign entities based on one’s domestic laws.In recent years,the US has been extending its “long-arm jurisdiction” to wider areas including civil torts,financial investment,anti-monopoly,export control and cybersecurity.In international affairs,the US has frequently requested entities or individuals of other countries to obey US domestic laws,otherwise they may face US civil,criminal or trade sanctions at any time.
In another White Paper released by the Chinese government on “China’s Position on the China-US Economic and Trade Consultations” in June 2019,9 the reference to “long-arm jurisdiction” therein bore the same meaning as discussed above.As such,the U.S.practice of “long-arm jurisdiction” which the Chinese government vehemently condemns refers specifically to the U.S.practice of unilaterally imposing sanctions on foreign entities and citizens based on the extraterritoriality of domestic U.S.law without any reasonable basis or justification in international law.Relevantly,trenchant criticisms and protests against the U.S.practice of long-arm jurisdiction do not come from China alone.As one author describes,the U.S.A.has,through its long-arm jurisdiction,“imposed huge fines and astronomical sums on foreign banks and companies,extracting from them confidential information,and thereby violating principles of sovereignty and non-intervention in the domestic jurisdiction of other States”.10
Even though the term “long-arm jurisdiction”,on a plain reading,vividly describes the American unreasonable or unjustified use of extraterritoriality of domestic law,applying a legal term that has its specific meaning in its originating country to describe a different scenario may breed misunderstanding and even misjudgment.For this reason,and with the clarification provided by the foregoing discussion,it is hoped that the Chinese government would express its position with accurate legal terminology.The inaccurate use of legal terms by the Chinese authorities reflects China’s present lack of capacity to ably engage in international legal affairs through the use of accurate and professional legal language.11
2.3 Exclusive Jurisdiction vs.Non-exclusive Jurisdiction
In international civil procedure,exclusive jurisdiction exists where the court of a given country has the power to adjudicate a case to the exclusion of the courts of all other countries.The parties may not submit to the jurisdiction of the court of another country in matters to which the rules of exclusive jurisdiction apply.Generally,countries tend to provide exclusive jurisdiction over the matters that have direct bearing on their fundamental political or economic interests,such as the disputes concerning the immovables,the natural resources,etc.
For the matters that do not have fundamental influence on the forum state,most countries provide non-exclusive jurisdiction which means either domestic courts or foreign courts may exercise jurisdiction.This situation may lead to forum shopping,as parties will try to have their lawsuit heard in the court that they perceive will be the most favorable to them.
2.4 Statutory Jurisdiction vs.Jurisdiction by Agreement
For actions that concern the social and economic stability and development,laws of most countries generally provide the details of the jurisdiction of its courts,excluding the parties’ choice in various areas which is called “statutory jurisdiction.” However,for other matters,most legal systems allow the parties to grant jurisdiction to any court by agreement,whether before or after the dispute has arisen.But different countries may grant different scope to the jurisdiction by agreement.