This Article has been written by A. Taibah Fathima, a 5th year BA.,LLB student from Government Law College, Villupuram, Tamil Nadu

ABSTRACT:

Litigation involving international, transnational, foreign, or comparative law frequently poses issues preliminary to considerations of the merits. In this regard, international cases are no different than cases in other fields of law. That said, resolution of preliminary issues in international cases sometimes implicates doctrines that either do not arise, or arise in a different way, in the purely domestic context. Such issues include: 

• Jurisdiction
• Preliminary issues such as immunities 
• Doctrines like act of state and forum non conveniens
• Comity
• Discovery and related procedures

 These are discussed in turn below, with emphasis on particular ways that they arise or are treated in international litigation.

INTRODUCTION:

The term “jurisdiction” can have various meanings in transnational cases. The Restatement (Third) of the Foreign Relations Law of the United States divides jurisdiction into three categories:

 (a) jurisdiction to prescribe, i.e., a country’s ability to make its law applicable to persons, conduct, relations, or interests;

 (b) jurisdiction to adjudicate, i.e., a country’s ability to subject persons or things to the process of its courts or administrative tribunals. The U.S. legal categories of personal jurisdiction and subject-matter jurisdiction help delineate the scope of U.S. courts’ jurisdiction to adjudicate;

 (c) jurisdiction to enforce, i.e., a country’s ability to induce or compel compliance or to punish noncompliance with its laws or regulations.

This chapter first lays out the five bases upon which countries may exercise their jurisdiction to prescribe. It then considers limitations on the exercise of extraterritorial jurisdiction.

THE NATURE OF JURISDICTION:

 In public international law, the concept of jurisdiction has traditionally had a strong link with the notion of sovereignty. Jurisdiction allows States to give effect to the sovereign independence which they are endowed with in a global system of formally equal States, through stating what the law is relating to persons or activities in which they have a legal interest. Sovereignty however not only serves as an enabling concept with respect to the exercise of jurisdiction, but also as a restraining device: it informs the adoption of international rules restricting the exercise of State jurisdiction. States may indeed well adopt laws that govern matters that are not exclusively of domestic concern, and thereby impinge on other States’ sovereignty. In essence, the laws of jurisdiction delimit the competences between States, and thus serve as the basic ‘traffic rules’ of the international legal order.

FORMS OF JURISDICTION:

Forms like prescriptive, enforcement, adjudicatory, and functional In the law of jurisdiction, most attention has been devoted to ‘prescriptive’ or ‘legislative’ jurisdiction. Such jurisdiction refers to the power of a State ‘to make its law applicable to the activities, relations, or status of persons, or the interests of persons in things, whether by legislation, by executive act or order, by administrative rule or regulation, or by determination by a court.’ Under the principle espoused by the Permanent Court of International Justice in the 1927 Lotus case, States are in principle free to exercise prescriptive jurisdiction over a given situation as they please, unless a prohibitive rule to the contrary could be identified. After Lotus, however, starting with the Harvard Research on International Law’s ‘Draft Convention on Jurisdiction with Respect to Crime’, it appears that the international community has embraced a more restrictive approach, by requiring that the asserting State rely on a permissive principle for the exercise of jurisdiction to be lawful. In this chapter, we will primarily focus on prescriptive jurisdiction, although in this Section the related forms of jurisdiction known as ‘enforcement’, ‘adjudicatory’, and ‘functional’ jurisdiction will be clarified. The most uncontested permissive principle of prescriptive jurisdiction, in light of the Westphalian underpinnings of the law of jurisdiction, may appear to be the territoriality principle. Pursuant to this principle, acts carried out in a State’s territory fall within that State’s jurisdiction. On closer inspection, however, territoriality is not as simple in application as it might seem, as crimes or other acts over which a State may desire to exercise jurisdiction may straddle borders: the act may be initiated in one State (‘subjective territoriality’), but completed, or cause effects in another (‘objective territoriality’). The criminal law’s classic approach of dealing with transboundary crime is to allow the exercise of jurisdiction by a State as soon as one of the constitutive elements of the crime has taken place in its territory. This may seem to be straightforward enough, but where crime has become de-territorialized, such as in cyberspace, the use of the constitutive elements-based territoriality principle becomes particularly challenging, however.Territoriality has also been relied on outside the criminal law, notably in competition law, where objective territoriality came to be known as the ‘effects doctrine’. The requirements of the territoriality principle have also been considered to be met where foreign airlines were obliged to surrender emissions allowances in respect of nonterritorial air mileage on the ground that the relevant aircraft departed from, or landed at a territorial airport. These liberal interpretations of territoriality in economic and environmental law have given rise to substantial international tension. Foreign nations adopted ‘blocking laws’ to prohibit their corporations from complying with discovery requests concerning alleged ‘extraterritorial’ anticompetitive acts,20 and threatened with legal action at the World Trade Organization.

The jurisdiction exercised by the judiciary is typically denoted by the terms ‘adjudicative’ or ‘adjudicatory’ jurisdiction, which refer to a State’s jurisdiction ‘to subject persons or things to the process of its courts or administrative tribunals, whether in civil or in criminal proceedings, whether or not the state is a party to the proceedings.’ Adjudicative jurisdiction thus refers to the jurisdiction of the courts rather than to the reach of a State’s laws, and pertains to the defendant’s anticipation of being hauled before the courts of the State in question.

PRESUMPTION AGAINST EXTRATERRITORIALLY:

 The international law of jurisdiction is mainly developed through, and applied by domestic courts and regulators, with little guidance having been given by international courts. In some jurisdictions, the international law of jurisdiction has played a rather limited role in circumscribing the reach ratione loci of domestic laws. This is especially so in the United States, where courts hardly rely on international norms of prescriptive jurisdiction, but rather on the presumption against extraterritoriality. This presumption is a canon of statutory construction pursuant to which Congress normally intends to regulate domestically. It can only be rebutted by a clear congressional statement to the contrary. Like the international law of jurisdiction, the presumption appears to be equally geared toward protecting, in the words of the U.S. Supreme Court, “against unintended clashes between [U.S.] laws and those of other nations which could result in international discord”. In reality, however, the presumption is mainly a matter of judicial deference to the foreign policy prerogatives of the political branches, as Congress rather than the judiciary “is likely to have superior informational and technical expertise on how to make [a] determination” whether a statute should have extraterritorial application. This implies that the presumption is informed by constitutional law considerations regarding the separation of powers between the judiciary on the one hand, and the legislature on the other hand. In practice, the presumption has not been applied very consistently, with U.S. courts sometimes conjuring up Congressional intent where in reality such intent was doubtful. This has made the outcome of particular cases difficult to predict. The doctrine has not failed to criticize this state of affairs, and some authors have advanced an increasing role for international law principles of jurisdiction in determining the reach of U.S. law,  so far to little practical effect, however. In recent years, a rather strict interpretation of the presumption against extraterritoriality has led the U.S. Supreme Court to hold, in Kiobel, that the Alien Tort Statute, a statute that on its face allows foreigners to file civil claims against other foreigners in U.S. federal court, only applies to cases that ‘touch and concern’ the United States and to hold, in Morrison, that the U.S. Exchange Act did not apply to foreign securities fraud where the link with the U.S. was only tenuous (thereby apparently overruling some longstanding contrary Circuit practice).

JURISDICTIONAL REASONABLENESS:

As can be collected from the overview of permissive principles of prescriptive jurisdiction, States can invoke a variety of jurisdictional grounds to address one and the same situation. Moreover, a multitude of States can potentially claim jurisdiction on the basis of the perceived transboundary effects of just one act. Inevitably, this may give rise to international friction. Unfortunately, international law has not (yet) come up with a rule that could resolve conflicts arising from overlapping, prima facie lawful jurisdictional claims. There is no rule giving priority to the ‘most interested’ or ‘affected’ State, although it may appear logical to give the territorial State .

Heeding other States’ concerns

 Since the propriety of a jurisdictional assertion is determined by the State itself, with little to no international supervision, it is almost inevitable that the exercise of jurisdiction is prone to subjective, and even parochial interpretations. Still, as thanks to the rise of information and communication technology, regulators and courts have increasing contacts with their counterparts in other States through governmental networks, it may not be wishful thinking to submit that the emergence of this ‘global administrative space’ may result in greater understanding of all affected States’ legitimate concerns. In the field of antitrust law, the institutionalized contacts and dialogues, setting out duties of consultation, information- sharing, positive comity, and conditional reciprocity,  between transatlantic regulators have surely contributed to the decrease of regulatory conflicts, although the substantive convergence of antitrust laws may also be an explanatory factor. Where procedurally possible, States may also wish to file amicus curiae briefs with foreign courts to have their jurisdictional views heard. While exact causality cannot be established, these views may well influence the final determination made by the court hearing a transnational dispute. In the Vitamins litigation (2004), for instance the US Supreme Court averred that it is to be assumed that the US Congress takes ‘the legitimate sovereign interests of other nations into account’ when assessing the reach of US law, and avoids extending this reach when this would create a ‘serious risk of interference with a foreign nation’s ability independently to regulate its own commercial affairs’. Apparently influenced by a number of amicus curiae briefs filed by foreign governments, the Court went on to decline jurisdiction over an antitrust claim alleging separable foreign harm. This is a far cry from the Hartford Fire Insurance case (1993), in which the same court had held that foreign policies and laws should not be heeded by US courts when giving extraterritorial application to US antitrust law, unless the foreign State compels conduct which US law prohibits (or vice versa) .

CONCLUSION:

 One may be tempted to believe that many jurisdictional problems will lose their salience as soon as transnational or global governance problems are adequately dealt with at a multilateral level, e.g., when an international competition law regime is established, or when the International Civil Aviation Organization reaches agreement on aviation emissions caps, thereby obviating the need for unilateral, extraterritorial State action. At a theoretical level, that may well be true. In practice, however, individual States will continue to play the leading role in global governance in the face of the elusiveness of relevant multilateral agreements and centralized institutions. Even in respect of international crimes can the existing, permanent International Criminal Court only deal with a small number of atrocity cases. Accordingly, the unilateral exercise of jurisdiction by States, or regional organizations, will be there to stay, to ‘recast global problems in local terms’ in Buxbaum’s words.  One cannot deny that such unilateralism may well lead to abuse by economically and politically powerful States, who may tend to limit foreign operators’ market access in their own national rather than global interest.93 In addition, it could lead to regulatory chaos where numerous States start to exercise jurisdiction over one and the same situation, thereby increasing transaction costs for transnational operators.

REFERENCE:

• Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1
• International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). 
• Burnham v. Superior Court, 495 U.S. 604 (1990)
• Articles 99-107 UNCLOS
• universal criminal jurisdiction: L Reydams, Universal Jurisdiction (2003).
• Harvard Research on International Law, ‘Draft Convention on Jurisdiction with Respect to Crime’, (1935) 29 Am J Int’l L 439
• AJ Colangelo, ´A Unified Approach to Extraterritoriality´, (2011) 97 Va L Rev 1019, 1108; JH Knox, ‘A Presumption Against Extrajurisdictionality’, (2010) 104 Am J Int’l L 351, 372-373.