Conflict of Jurisdictions
3.1 Reasons for Conflict
Where the facts and conditions upon which judicial action is founded in a particular case may properly be the subject of action of also the courts of another state,a conflict of jurisdictions is presented.Such conflicts may result where one of the parties is domiciled within or is a national of a foreign state; or where the transaction takes place in whole or in part within a foreign state; or where judicial action is sought in the local state with reference to rights or interests in property in a foreign state.As a matter of fact,conflict of jurisdictions in the context of international civil litigation is rather serious,which constitutes an obstacle for the accomplishment of international justice that private international law purports to safeguard.
The independent legislative jurisdiction enjoyed by every country is the underlying reason for conflict of jurisdictions.[1]Under the equality of sovereignty,every country has the authority to make its law independently free from any external meddling or interference,subject to the limit of international convention and custom.It is noted that there is no universally accepted international convention regulating the distribution of civil judicial competence except in very limited areas such as choice of forum,12 and immunity of foreign states,sovereigns,and diplomatic representatives.Nor does any such international custom exist.Thus every country virtually is at liberty to enact law generally applicable to persons or activities in its own interests.13 Under such a circumstance,conflict of legislations in the field of civil jurisdiction is almost inevitable.
The tremendous variety of the bases of civil jurisdiction adopted in different countries is the direct reason for conflict of jurisdictions.Starting with common law countries,there are clear similarities between Britain and other jurisdictions which historically have come under British influence.England,Australia,New Zealand,Canada and Hong Kong,all these common law jurisdictions base civil jurisdiction on the service of a writ on the defendant.14 This can be done where a defendant is transiently present within the jurisdiction.In certain specified circumstances,a writ can be served out of the jurisdiction.For instance,it is allowed under English law where,in a contractual dispute,the contract is governed by English law.15 The United States law,though,is distinctively different.Nearly all states have long-arm statutes which set out when process may be served on non-resident defendants.However,this jurisdiction is subject to constitutional limits set out in the due process clause of the United States Constitution.As a response to this,some long-arm statutes provide that jurisdiction may be exercised on any basis not inconsistent with the state or the United States Constitution.16 Many long-arm statutes,however,detail the circumstances in which jurisdiction can be asserted over a non-resident defendant.The United States Supreme Court allows general jurisdiction over any claim against defendant whenever there are continuous and systematic activities by the defendant within the forum or the defendant is physically present in the forum and served with process.It also allows specific jurisdiction in relation to claims that arise out of defendant’s activities within the forum; in such cases a minimum contacts test is applied.
Moving on to civil law jurisdictions,the same pattern of different rules in different countries emerges.For example,under the Belgian law,a plaintiff is allowed to proceed in Belgium if the defendant is domiciled or resident in Belgium.A second provision allows a plaintiff to proceed if there is a specified territorial connection with Belgium,such as this being the place of performance of an obligation.Under a third provision a plaintiff may sue in Belgium if he has a domicile or residence in that country.17 However,the defendant is allowed to decline this jurisdiction.Under the well-known Article 14 of the French Civil Code,a French national is able to bring an action in France against a foreign defendant.In contrast,under German law,there is the notorious basis of jurisdiction that the defendant has property in the forum state.18 Swiss law has a general rule on jurisdiction whereby jurisdiction lies with the Swiss judicial or administrative authorities at the defendant’s domicile.19 There are then special rules for particular types of cases.For instance,for contracts the action may be brought before the Swiss court for the place of performance of the contract.20 Under Article 3 of Greek Code of Civil Procedure of 1968 the Greek courts have international civil jurisdiction when they have territorial jurisdiction.
The position is different in Scandinavian States.There is jurisdiction in Sweden if the defendant resides or has its seat there.There are also particular rules for special types of cases.Thus,in disputes concerning debt obligations,a non-domiciliary may be sued at the place where property belonging to him is located.An action for damages in tort may be brought in Sweden if this is the place in which a tortious act occurred or had its impact.Finland takes a very wide jurisdiction based on “catch you where you can” and on the presence of property in the forum.21
Apparently,the independent legislative jurisdiction enjoyed by each country makes conflict of jurisdictions inevitable,and the considerable diversity in the rules on international civil jurisdiction in different countries further renders such conflicts rather common phenomena.
3.2 Solutions to Conflict(https://www.daowen.com)
Solutions to conflict of jurisdictions can be analyzed at two different levels: international level and national level.As regard to international level,the adoption of universally accepted conventions,undoubtedly,is the desirable approach which can harmonize the rules of international civil jurisdiction and eradicate the conflicts thoroughly.
In the first half of the 20th century,international instruments dealing with private international law,including civil jurisdiction,were either bilateral or universal in character.Harmonization on a bilateral basis is,by and large,compatible with efforts to achieve harmonization on a worldwide basis.But out of the complicated reasons,international community has made little progress in harmonizing the jurisdictional rules on the worldwide basis during this period.
The second half of the 20th century witnessed the rise of a third type of international instrument,one multilateral in nature but regional rather than universal in scope.In 1968,the Brussels Convention changed fundamentally the role of international instruments in the area of jurisdiction and enforcement of foreign judgments by harmonizing the law respecting these matters on a regional basis.To the bilateral and the universal approaches to harmonization,a regional approach was thus added.The regional and universal approaches have,at least so far,proved to be incompatible where harmonization of the general law of jurisdiction to adjudicate and recognition and enforcement of foreign judgment is concerned.Put it in another way,once a regional harmonization of these matters is in place,the parties to the regional instrument have a greatly reduced incentive to harmonize the same area of law on a universal basis.22
Even assuming a regional approach is not incompatible with the universal harmonization,instruments harmonizing broad areas of the law of jurisdiction on a worldwide basis do not have a bright future.This is because there are wide diversities in the basis of jurisdictions among different countries,and it is extremely difficult to strike a meaningful compromise among those countries which have very different political,legal,economic and social backgrounds.This is not the case for the Western European countries,as they share a common legal tradition and a similar social and economic background; therefore,it is relatively easy for these countries to reach agreement on the rules of civil jurisdiction within the framework of EU.In contrast,the efforts to harmonize jurisdiction on a worldwide basis are always encountering tremendous difficulties.The abortion of the proposed Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters,inter alia,is an epitome.[2]In this light,it is almost certain that the adoption of a universally accepted convention regulating international civil jurisdiction is impossible in the foreseeable future.Thus mitigating conflict of jurisdictions has to resort to the efforts made at national level,which,though not as desirable as on a worldwide basis,is far more practical and feasible.
At the national level,the legislators and the judges of a country should adopt a position of enlightened self-interest rather than absolute self-interest; that is to say,when enacting or applying the law governing international civil jurisdiction,they should take the legislation and judicial practice prevalent in other countries into account and,endeavor to avoid or mitigate conflict of jurisdictions through international cooperation.
With regard to legislation,two principles in particular,are encouraged to be followed: First,the scope of exclusive jurisdiction should be minimized which is applicable merely to the matters that have the most significant influence on the interests of the forum.Given exclusive jurisdiction is most likely to pose conflict of jurisdictions,many scholars believe that it is understandable to limit its scope as strictly as possible.Second,the scope of jurisdiction by agreement should be expanded to provide greater certainty and predictability for parties involved in business-to-business agreements and transnational litigation.Jurisdiction by agreement is the reflection of party autonomy in the field of jurisdiction,which is proved to be an effective approach to harmonizing the jurisdictional rules between different countries and to improving certainty and predictability in international civil and commercial exchanges,thus countries are encouraged to recognize the validity of choice of forum agreement as long as it is not in violation of the mandatory rules of the forum.
In judicial aspect,the judges should take positive measures to mitigate conflict of jurisdictions within their discretion,and the doctrine of lis alibi pendens and the doctrine of forum non conveniens,among others,have been proved to be efficient and helpful.Until the 20th century was well begun,in common law system as well as civil law system alike the position was taken that lis alibi pendens principle applied only to domestic litigation.The arguments supporting the lis alibi pendens principle in international civil litigation became much stronger,as such litigation became more frequent.Nowadays,more and more countries,either of civil law or of common law system,take the position that when the parties are engaged in proceedings in courts of different countries,and when such proceedings are based on the same cause of action,irrespective of the relief sought,the court second seized shall suspend the proceedings if the court first seized has jurisdiction and is expected to render a judgment,unless the former has exclusive jurisdiction under its law.23
Forum non conveniens was traditionally a common law doctrine under which the courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties.Though many civil law countries still maintain their traditional hostility to the doctrine of forum non conveniens,more and more civil countries,including China,switch the positions,and come to evaluate it affirmatively,inasmuch as this doctrine has been proved to be an efficient means to solve conflict of jurisdictions in many cases.24 The introduction of the doctrine by the Supreme People’s Court of China into judicial practice will be discussed in the next chapter.