SIMAD UNIVERSITY FACULTY OF LAW Chapter two

There are three elements of jurisdiction local jurisdiction
material jurisdiction
and judicial jurisdiction
Material jurisdiction rules basically resolves the question which level or hierarchy of court should exercise jurisdiction over certain specific matters.
On the other hand, local jurisdiction refers to the specific area, within a state, in which a case is to be tried.<br>

Cont.. The other element of jurisdiction, which is the subject of extensive discussion under the present course, is judicial jurisdiction
It refers to the power of the court of a particular state to render a judgment binding an individual or his property. Obviously, a state's power to assert jurisdiction may not be challenged if a case is entirely between and amongst its residents or domiciliaries, and for a claim or controversy that arose locally.<br>

Cont.. Of course, there is no specific rule under international law which puts limitation on a state's right to assert jurisdiction over civil cases involving non-domestic element. However, the non-existence of legal restraint could not yet free a state to ignore the issue of involvement of foreign element and the resulting competing interest that may ensue from.
The question of recognizability of judgment by the recognition forum; the fear of retaliation (i.e. citizen or domiciliary of such forum state); and the need to promote free flow of commerce may compel a state to consider various interests implicated in a case. Thus, the involvement of foreign elements in a case is likely to make determination on jurisdiction more complex than one may otherwise expect.,It should be noted once again that the problem of judicial jurisdiction may arise both at international and in the interstate level.<br>

Theories or Bases of Judicial Jurisdiction Under this section, only the major theories of judicial jurisdiction are discussed. The bases for the assertion of judicial jurisdiction are different in both Civil law and Common Law Legal System. Generally speaking, the Civil Law emphasizes the defendant's domicile as a primary basis of jurisdiction, both at the international and within a given nation.<br>

Cont.. Whereas in the Common Law the physical presence of the defendant within the territorial jurisdiction of a forum suffices in order to assert jurisdiction against him. However, this does not mean that the theories of jurisdiction are expressible only in terms of domicile or physical presence (power). There are other developments in both legal systems, such as, consent and fairness theories of jurisdiction. The following paragraphs would, therefore, discuss the various theories of jurisdiction.<br>

The Territorial Power or Power or Territorial Theory The power theory has its root in the historical Common Law theory of jurisdiction which began with the concept of physical power exercised by arresting and physically bringing the defendant before the court. The physical seizure of the defendant in civil proceeding is, of course, long abandoned, but its residuum is that if the defendant physically appears in the territorial area of the court, that court can assert jurisdiction merely by serving him a summon. Power theory, thus, explains jurisdiction vis à vis the relationship of the person or a thing to the forum. It disregards the relationships of the parties that the defendant or both parties could be non-domiciliaries, and the relationship between the underlying controversy and the forum - that the claim may have arisen elsewhere.<br>

Cont… The anomaly of this theory is that a person in transient or who inadvertently enters into the territorial jurisdiction of a court would be subject to its jurisdiction. An extended version of the power theory is reflected in the famous case (Grace V. McArthur) in which the court pronounced "… a defendant served on an air plane flying over the state was reached jurisdictionally even though the plane trip started and was to end elsewhere, and did not even include local landing."<br>

The Minimum Contact Theory Minimum contacts is a term used in the US of Civil procedure to determine when it is appropriate for a court in ones tate  to assert Personal Jurisdiction over a defendant from another state. The US court  has decided a number of cases that have established and refined the principle that it is unfair for a court to assert jurisdiction over a party unless that party's contacts with the state in which that court sits are such that the party "could reasonably expect to be haled into court" in that state. This jurisdiction must "not offend traditional notions of fair play and substantial justice". A non-resident defendant may have minimum contacts with the forum state if they 1) have direct contact with the state; 2) have a contract with a resident of the state; 3) have placed their product into the stream of commerce such that it reaches the forum state;] 4) seek to serve residents of the forum state; 5) have satisfied the Calder effects test; or 6) have a non-passive website viewed within the forum state.<br>

The Fairness Theory The fairness theory approaches the problem of judicial jurisdiction from various perspectives. In a simple parlance, a theory of jurisdiction based on fairness requires the forum state to try a case when it is convenient, fair and just to the parties. The major justification which its proponents expound rests on the assumption that resolution of a dispute based on fairness guarantees recognition elsewhere because the world shares fairness as a common value, and that a judgment which reflects a measure of fairness has high normative value in compelling a state to extend recognition<br>

Domicile, Residence, Nationality as a basis of Judicial Jurisdiction Domicile is a legal concept whose definition is no where or rarely found in legislations.
domicile is generally understood as the cumulative value of two elements: the fact of residence, and the intention of remaining at a certain place
This theory also places the nationality of the person as a basis for jurisdiction.<br>

Jurisdiction based on consent/submission This theory has it that the people bringing a suit have the sheer willingness of submitting to its judgment , submission simply means accepting the courts jurisdiction.<br>

General and Special Jurisdiction The use of the term „general jurisdiction‟ is better understood by contrast to the concept 
of limited or special jurisdiction. A court of limited jurisdiction is one which is restricted only to those classes of cases specifically listed under legislations, constitution or other legal sources of the sovereign establishing the court. However, a court of general jurisdiction is one that is conferred with jurisdiction over any cases except those which supply exclusive jurisdiction of another court or that given to the court of limited jurisdiction<br>

Exclusive Jurisdiction Matters which fall under exclusive jurisdiction are normally those which by their nature posses insurmountable difficulties of enforcement procedure mainly due to the involvement of third parties interest in the local forum, or that certain crucial evidences are accessible only in one state, or because of the need of the local forum to handle certain cases which it thinks require strict surveillance by itself<br>

Discussion questions What are the justifications behind local, material and judicial jurisdiction?
 
Discuss the five possible ways of establishing jurisdiction.
 
The theory of Territorial Power is criticized for its inability of responding to today‟s life style. Do you agree? Justify.
 
It is argued that we would be better off if the Minimum contact and Fairness Theories together establish judicial jurisdiction. How is it possible?
 
Although from the legal track point of view a court of a given country can entertain a case containing a foreign element, there are other non-legal practical considerations that deny a court of its power of entertaining same. Discuss.
 
Discuss the concepts of general, special and exclusive jurisdiction.
 
Do you think that the rules judicial jurisdiction in interstate cases and international cases are the same? Justify.<br>