1. Jurisdiction
Dr. Eric Engle LL.M.

2. Jurisdiction - Overview
Territorial Jurisdiction
In Personam
Passive Personality Principle
Active Personality Principle
Protective Principle
In Rem
Forfeiture
Extra-territorial
Universal

3. Sovereignty: Principles
Sovereignty is the absolute exclusive power of one state to determine the legal rights and duties respecting all persons and property on its territory as well as the right of the state to adjudicate certain rights and duties of its subjects overseas and on territories ungoverned by any state.
Thus, conflicts of law are baked in to a globalizing world. This model only worked in the pre globalized world of autarchic states ruled by despots.

4. Two Principle Bases of Jurisdiction
1. Territory – the transaction took place on the territory of the state asserting jurisdiction
2. Personality
the person involved in the transaction is a subject of the state asserting jurisdiction
the person involved in the transaction is subject to the state asserting jurisdiction due to their presence on the state's territory

5. Personal Jurisdiction=In Personam
1. Territorial – transaction or person on Territory
2. In Personam–one party a subject of the state
Passive Personality Principle
Active Personality Principle
3. Protective Principle
Assure integrity of state's Instruments:
$, Passports, Bonds, etc.

6. In Rem Jurisdiction
In Rem Jurisdiction: the thing being litigated is on the territory of the state
Asset Forfeiture
Quasi in rem jurisdiction: a thing is on the territory of the state
Advantage to go after the thing instead of the person: Civil not Criminal standard of proof!

7. In terms of state power Jurisdiction to adjudicate (judicial)
Least invasion of foreign state's sovereignty
Jurisdiction to proscribe (legislative)
It might not interfere with foreign state's sovereingty at all!
Jurisdiction to enforce (executive)
Police with Guns.
Also the Army!
Greatest Invasion of Foreign State's Sovereignty

8. Exorbitant Jurisdiction = Extra-Territorial Jurisdiction
Ex orbitante jurisdiction is jurisdiction exercised where the territory of the state itself is not somehow implicated.
2 Types:
1. Extra-territorial Jurisdiction
Extra-territorial jurisdiction on the basis of national law
Passive personality principle
Active personality principle
Protective principle
2. Universal Jurisdiction
For violations of Jus Cogens. JC are the non-derogable rules of international law.

9. Jurisdiction: Defences / Principles
Act of State Doctrine
[C]ourts will not sit in judgment on the act of a foreign sovereign performed within the territories of that sovereign
Desire to avoid embarrassing foreign powers or risk causing hostile confrontations with foreign powers
Might be obligatory international law

10. Jurisdiction: Defences / Principles
Comity - "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation."
States may be obliged to extend comity to other states they recognize de jure
States may extend comity to states they recognize de facto (Taiwan)
States not obliged to extend comity to states they do not recognize
States might not be able to extend comity to criminal regimes (Nazis, Apartheid): jus cogens?

11. Jurisdiction: Defences / Principles
Forum Non Conveniens – inconvenient forum
An discretionary jurisdictional defense.
Precondition: existence of a foreign forum with jurisdiction to adjudicate.
If such a forum exists and would not refuse the suit for discretionary reasons, the court must then balance the competing interests of the foreign forum against those of its own judiciary and the interests of the parties.
Ordinarily the plaintiff's choice of forum will be respected, but compelling circumstances can cause a court to reject plaintiff's claim due to inconvenienceto the court or the defendant.
Essentially the inquiry of the court is whether the choice of forum by the plaintiff is oppressive to the defendant. If not, and if there are no compelling issues of judicial economy, the plaintiff's choice of forum will be respected.

12. Jurisdiction: Defences / Principles
Exhaustion of foreign / local / administrative remedies

13. Jurisdiction: Defences / Principles
The Political Question Doctrine: factors
commitment of the issue to a coordinate branch of government (legislature or executive)
absence of judicially manageable standards or impossibility of deciding the case without also making a policy determination
case requires unquestioning adherence to a political decision already made or that
court's decision risks potential embarrassment by creating multiple conflictingpronouncements from different branches of government
Each of these factors weighs in favor of determining the issue a non-justiciable “political question”.
unlike comity and perhaps the act of state doctrine, is not discretionary: rather it is founded on separation of powers.
THIS IS NOT THE INTERNATIONAL “POLITICAL OFFENCE” DEFENSE!

14. Jurisdiction: Defences / Principles
Res Judicata
Prescription (Statute of Limitations)
Political Act
Double Jeopardy
Nul crimen sine lege pravia / ex post facto law
Notice, Hearing, etc. etc.

15. Jurisdiction: Defences / Principles
Extradition: some countries do, others don't!
Immunity: Head of State, Ministers, Officers
Same principles apply whether crime or tort:
Look at what act and when:
What act: Official or Personal? Crime or jus cogens?
When: During Term of Office or after?
HoS, maybe Ministers: absolutely immune during term of office. All are immune for official acts during and after office.
Official Acts
Violations of jus cogens?

16. Jurisdiction and the Corporation
Is the corporation a private actor?
Or is the corporation an institution of state power?
Corporations originated as institutions of state governance. Thus, in theory, could be subject to international law as an emanation of the nation.
Acto iure imperii - immunity
Acto iure gestionis – no immunity

17. Jurisdiction and the Corporation
Which citizenship or citizenships is the corporation?
Real seat theory (centre d'interets vitaux)
Place of incorporation theory
EU Law follows modern tendency: Both

18. Jurisdiction: Defences / Principles
Extradition: some countries do, others don't!
Immunity: Head of State, Ministers, Officers
Same principles apply whether crime or tort:
Look at what act and when:
What act: Official or Personal? Crime or jus cogens?
When: During Term of Office or after?
HoS, maybe Ministers: absolutely immune during term of office. All are immune for official acts during and after office.
Official Acts
Violations of jus cogens?

19. Thank you for listening!
Any Questions?