How does the court determine whether it has jurisdiction over a claim?
Litigation (2nd edition)
Once a claim is filed with the court, Austrian courts examine on their own motion whether international, subject-matter and territorial jurisdiction exists. In doing so, the court solely relies on the information provided by the plaintiff in the claim, unless the court already knows that the provided data is incorrect.
The question of international jurisdiction of Austrian courts is either governed by European law (if the defendant is domiciled in another EU member state) or by the Austrian Jurisdictional Code (if the defendant is domiciled outside of the European Union).
If Austrian courts do have international jurisdiction, generally any natural or legal person can be sued before the courts of its domicile or legal seat. However, there are a number of alternative venues a plaintiff may choose in specific situations and for some types of disputes, exclusive jurisdiction of certain courts exists. As already set out above under question 3, in commercial matters district courts will be competent if the amount in dispute is lower than EUR 15,000, and regional courts if the amount in dispute exceeds EUR 15,000, or irrespective of the amount in dispute if certain matters, such as IP disputes, are concerned.
Under both, Austrian and European legal provisions, parties can – and often do – agree on a choice of forum in commercial matters. It is important to note that the validity of choice of forum clauses is restricted if consumers are involved.
The basic rule is that the claim is subject to the jurisdiction of the court that has jurisdiction over where the defendant is located, which in principle is determined by the domicile of the defendant, in the case of a natural person, and by the location of the principal office or business office if the defendant is a corporation (Id., Article 4). But there are additional jurisdictions for certain types of claims. For example, tort claims may be filed with the court that has jurisdiction over the place where the tort occurred (Id., Article 5(ix) and (xii)).
If the claim is subject to several jurisdictions, the plaintiff may choose where to file the claim. However, the court may transfer the litigation to another court of competent jurisdiction if it finds it necessary to avoid any substantial delay in litigation or to ensure fairness for the parties (Id., Article 17).
Parties entering into a contract may agree upon the court of first instance which has jurisdiction to settle disputes related to that contract (Id., Article 11(1)).
Regarding international jurisdiction, the Japanese court basically has jurisdiction over claims that are brought against persons domiciled or having residence in Japan (Id., Article 3-2(1)). There are also additional claims where the Japanese court has jurisdiction over them, such as actions for the performance of contractual obligations if the contractually specified place for the performance is within Japan, or if the contractually agreed governing law provides a place within Japan as the place for the performance ( Id., Article 3-3(i)).
Domiciliation of the defendant in Monaco is the main criteria determining jurisdiction in the Courts of the Principality but specific contractual provisions regarding jurisdiction are cases/situations enforced by the Courts.
The law (Article 6 Law n° 1448 of 28 June 2017) provides other cases/situation where Monegasque courts have jurisdiction:
- In the case of real rights in immovable property, tenancies of immovable property and rights in companies holding immovable property, where the immovable property is located in the Principality;
- In contractual matters, where the goods have been, or are to be, delivered or if the provision of services was performed in the Principality.
For consumer contracts referred to in article 70, where the claimant is the consumer and is domiciled in the Principality;
In the case of individual employment contracts, where the claimant is the employee and is domiciled in the Principality, where the employee habitually carries out his working activities, where he is a teleworker as per the conditions set out by the legislative provisions regarding Teleworking or where the employment contract was executed in the Principality;
- In matters relating to tort, where the tortious act occurred in the Principality or if the damage was suffered there:
- In succession matters, where the succession has been opened in the Principality or where an immovable asset belonging to the estate is also located in the Principality, as well as claims by third parties against an heir or executor and claims between heirs until the final division of the assets;
- In corporate matters, until the final liquidation of the company if it still has its registered office in the Principality;
- With respect of collective proceedings for settlement of assets and liabilities arising from the application of articles 408 to 609 of the Code of Commerce, where the commercial activity is carried out in the Principality;
- With regard to the enforcement, validity or release of seizure orders or arrestments granted in the Principality and generally all claims for interim or provisional relief, even where the Monegasque courts are not competent to hear motions regarding the substance;
- In cases regarding the enforcement of judgements and foreign deeds.
Jurisdiction in China is determined by two dimensionalities: grade jurisdiction (which level of the court will have jurisdiction) and territorial jurisdiction (which location of the court will have jurisdiction). The grade jurisdiction involves an analysis on the seriousness of the case. Factors, such as the amount at dispute and the nationality of the parties, will be taken into consideration when deciding seriousness of the case. Territorial jurisdiction is affected by the nature of the case and domicile and/or habitual residence of the parties. Usually, the court at the location of defendant's domicile and habitual residence has jurisdiction.
Chinese law allows the parties of a contractual dispute or other property dispute to select in writing of the court for trial. The selection shall be within the scope of the courts which have actual connection with the dispute, i.e. the court of plaintiff’s domicile, place of contract performance, place of contract execution, and location of the subject matter. The selection shall not violate the provisions of statutes on grade jurisdiction. Disputes of real estate, disputes arising in port operations, and inheritance disputes are cases subject to exclusive jurisdiction which cannot be selected by parties’ agreement.
The courts have the obligation to verify ex officio their jurisdiction at the first court hearing. A first criteria is represented by the geographical area, the general rule for filing a claim is that the jurisdiction belongs to the court where the defendant is domiciled.
The court will also verify its material jurisdiction, one of the most important criteria being represented by the value of the claim’s object. For a case to be allocated to a tribunal in the first degree of jurisdiction, it must be of a value that exceeds RON 200.000 (approximately EUR 43,000). Therefore, if a Courthouse is invested with a claim that exceeds the capped value, the jurisdiction will be declined in the favour of the Tribunal.
Therefore, the court determines its jurisdiction by applying the procedural rules in this matter. In case of conflict of competence, the superior court will decide.
However, in some cases, the parties may expressly agree on the jurisdiction. When this agreement complies with the provisions of the law, the court cannot decline its jurisdiction.
If a claim before a Cypriot court is directed against a defendant not domiciled in Cyprus or has other “foreign elements” (e.g. if the facts giving rise to the dispute occurred outside Cyprus) the court will determine whether it has jurisdiction over the claim by applying either the provisions of the Recast Brussels I Regulation (Regulation EU No. 1215/2012) or the national rules concerning jurisdiction. Most commercial disputes fall within the scope of application of the Brussels I Regulation. Generally, the determining factor of jurisdiction under the Brussels I regime is the domicile of the defendant. Generally, the court will have jurisdiction where the defendant is domiciled in Cyprus, subject the provisions of the Recast Brussels I Regulation regarding exclusive jurisdiction, prorogation of jurisdiction and lis pendens. If the defendant is not domiciled in Cyprus the court may have jurisdiction over the claim pursuant to the provisions of the Recast Brussels I Regulation regarding exclusive jurisdiction (e.g if the claim concerns immovable property located in Cyprus, or the validity of a decision of the directors or the shareholders of a Cypriot company), special jurisdiction (e.g. if the claim concerns a civil wrong committed in Cyprus or a contractual obligation performed or due to be performed in Cyprus) and prorogation of jurisdiction (e.g. if the parties agreed that their dispute would be subject to the jurisdiction of the Cypriot courts).
In summary, the national rules concerning jurisdiction permit a Cypriot court to assume jurisdiction over a claim directed against a defendant not domiciled in Cyprus or having other “foreign elements” if the writ of summons is served on the defendant in Cyprus, if the defendant submits to the jurisdiction of the Cypriot court or (in respect of claims directed against defendants not domiciled in Cyprus) if the conditions set out in the Civil Procedure Rules for the granting of permission to serve the claim out of the jurisdiction are satisfied (generally these require a connection with Cyprus). Under the national rules, the court has a discretion to stay a claim over which it has jurisdiction if it is satisfied that the courts of another state are “clearly and distinctly” a more appropriate forum for the trial of the action.
If the Cypriot courts have jurisdiction over a claim, the question of which specific District Court has jurisdiction is determined with reference to the provisions of the Courts of Justice Law of 1960 regarding territorial jurisdiction.
Jurisdiction for the courts can be divided into subject-matter jurisdiction and territorial jurisdiction.
Regarding the competency of a court to hear cases of a particular type or cases, i.e. subject-matter jurisdiction, it is the principal rule that all cases are tried in the first instance by the district courts. Unless the parties have agreed otherwise, a party can request that cases of certain types, inter alia cases where business knowledge is of significant importance, are tried at the Maritime and Commercial High Court.
Moreover, if so requested by a party, the district court may decide to refer a case to the High Court in the first instance if the case consist of matters of principle or matters of general importance to the application and development of the law or has significant societal implications in general.
In principle, the court must ensure on its own initiative that it has territorial jurisdiction over the case. If the defendant does not object to the court’s jurisdiction and actively participate in the process, the court will in almost all cases consider itself to have territorial jurisdiction.
Choice of venue agreements between parties are with some exceptions generally accepted by the Danish courts, while for instance it is not possible to agree that a dispute shall be settled by the High Court or Supreme Court in the first instance.
Egyptian courts determine matters of jurisdiction by virtue of judgment that is issued either at the end of the case or at a preliminary stage, as such, matters of jurisdiction are reviewed with the case a whole. It is very common that parties disagree on jurisdictional issues and exchange memorials thereon.
The Egyptian court determines whether it has jurisdiction depending on a number of factors and provisions set out the Egyptian Civil and Commercial Procedures Law no. 13 for the year 1968. As a general rule Egyptian courts have jurisdiction if any of the parties is an Egyptian national. Another example would be that Egyptian courts have jurisdiction if the defendant is an Egyptian resident or has an Egyptian domicile. Further, Egypt has exclusive jurisdiction over disputes regarding any property situated in Egypt.
It should be noted that Egyptian courts usually deem that they have jurisdiction over disputed claims, unless either party provides evidence to the contrary. The Egyptian courts can also have jurisdiction over a claim even if such claim is subject to a foreign law.
When the court takes a decision on jurisdiction it inter alia considers whether:
(i) it has is a material jurisdiction over a claim, i.e. whether a dispute at hand is of commercial nature, but not purely a civil one with no involvement of companies and individual entrepreneurs;
(ii) it has a territorial jurisdiction over a claim.
If the court establishes that it has no jurisdiction over a claim, it refuses to commence proceedings or terminates them if a case has already been opened.
First of all, every claim must be filed before a competent court, which can be determined by
i) the amount in the controversy,
ii) by the nature of the case and the type of relief sought, which is also known as subject matter jurisdiction,
and iii) territorial jurisdiction.
Additionally, in order for the court to determine whether it has jurisdiction or not over a claim, it must observe if the parties submitted expressly or tacitly to such jurisdiction. There is express submission when the interested parties renounce to the venue that the law grants them, and they choose a specific forum or venue to bring an action. Usually, this submission is made in the contract or agreement celebrated between the parties. On the other hand tacitly submission happens when the plaintiff files a lawsuit before the judge believed to have jurisdiction, or when the defendant responds to the claim or files a counter-claim before the same judge. In those cases the court determines it has jurisdiction.
In domestic cases, the (territorial) jurisdiction (örtliche Zuständigkeit) of the German courts is regulated in sec. 12 et seq. ZPO. In international cases, the EU Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels Ia Regulation) applies.
Under both regimes, the general jurisdiction of the court depends on the place of residence of the defendant (sec. 12, 13 ZPO; Art. 4 Brussels Ia Regulation). Legal persons such as companies and associations can be sued at the place of their registered seat or the place of their central administration (sec. 17 ZPO; Art. 4, 63 Brussels Ia Regulation). In corporate and commercial litigation, defendants can also be sued on the basis of special jurisdiction (besondere Gerichtsstände), such as special jurisdiction at the place of performance in contractual matters (sec. 29 ZPO; Art. 7 no. 1 lit. a Brussels Ia Regulation), special jurisdiction at the seat of a corporation for certain corporate matters (sec. 22 ZPO) and special jurisdiction in tort (sec. 32 ZPO, Art. 7 no. 2 Brussels Ia Regulation). In capital market-related disputes, German domestic law provides for exclusive tort-based jurisdiction of the courts at the registered seat of the company that issued the security instrument in question.
Parties may also derogate from the general or special jurisdiction of the court by concluding a jurisdiction agreement. However, under domestic German law, such agreements are valid only if both parties are merchants, unless the jurisdiction agreement is concluded after the dispute has arisen (sec. 38 ZPO). Art. 25 Brussels Ia Regulation does not contain such a requirement but Art. 18 (1) Brussels Ia Regulation provides for special jurisdiction in consumer disputes at the place of residence of the consumer. As a consequence, in cross-border cases consumer can always sue the defendant before their “home court” and do not need to rely on jurisdiction agreements.
If a court lacks jurisdiction, it either dismisses the complaint or, upon the plaintiff’s request, refers the dispute to the competent court (sec. 281 (1) ZPO).
Generally in commercial disputes arising from contract, the parties will have agreed on the governing law in their contract, and the courts in Hong Kong will respect the parties’ choice as long as it is bona fide, legal and is not against public policy.
The choice of law will not be given effect if the choice is against public policy (e.g. gambling) or mandatory governing law in certain areas (e.g. employment, sale of goods and supply of services, real estate, insolvency and bankruptcy, financial services regulation) which are codified by Hong Kong statutes, or the performance of the agreement is illegal under the laws of the place of performance.
In the absence of choice, the court will decide the governing law by identifying the legal system which has the most “real and substantial connection” to the contract. Factors that may be taken into account include the place of intended performance, the domicile or residence of the parties, the currency of payment and choice of governing law in other related contracts.
In respect of tortious claims, Hong Kong will generally be the governing law applicable to torts committed locally. For torts committed outside of Hong Kong, the court will generally apply the “double actionability” rule: that the wrong must be actionable both under Hong Kong law and under the law of the jurisdiction in which the relevant acts took place. In cases where the “double actionability” rule would give rise to injustice, the court may determine that the governing law shall be the law of the jurisdiction which has the most significant relationship with the parties and the relevant acts committed.
The Royal Court will respect parties’ autonomy to submit to a jurisdiction of their choice. However, if the matter involves issues which can only be decided on properly by a Guernsey Court then the Royal Court is more likely to claim jurisdiction.
Jurisdiction over a claim is established based on the value of the subject matter i.e. pecuniary jurisdiction and where the defendant is situated or where the cause of action arises i.e. territorial jurisdiction.
The amount of pecuniary jurisdiction may be different from State to State. In Delhi, for example, vide notification dated 07.07.2018, the High Court of Delhi has authorised District Judges/Additional District Judges of respective districts to deal with commercial matters of value between INR 3 lacs to INR 2 crores.
If a proceeding can be initiated in multiple courts, it may be filed by the petitioner/plaintiff in any of those courts, unless the parties have conferred exclusive jurisdiction on one of such courts by way of an agreement.
In addition to this, jurisdiction may be conferred based on the subject matter of dispute to specific tribunals that may have been instituted specifically for the said subject matter.
Isle of Man
Legal entities present on the island can be served with claims and the court would have jurisdiction. The court also has power to order service out of the jurisdiction in certain instances (rule 2.41 and AK Investment CJSC v Kyrgyz  UKPC 7). Moreover there may be challenges to jurisdiction and arguments over convenient forum.
The courts in the Isle of Man (see for relatively recent examples, Deemster Corlett’s judgments in Cunningham v Ellis 27 January 2017 and Nolan v Dildar 10 January 2019) have adopted and applied the dicta of Lord Goff in Spiliada Maritime Corp. v Cansulex Ltd  AC 460 at 477 and take into account the following factors:
(a) which jurisdiction has the most real and substantial connection to the proceedings?
(b) which jurisdiction is the most convenient?
(c) which jurisdiction would be most costs effective?
(d) what is the availability of witnesses?
(e) what law governs any relevant transactions?
(f) in which jurisdictions do the parties reside or carry on business?
(g) will the parties obtain justice in the other jurisdiction?
Every court can determine ex officio if it has jurisdiction over a claim at any stage and level of the proceedings, as provided by Article 37 of the Italian Code of Civil Procedure.
The jurisdiction has to be determined according to the provisions in force at the moment of the submission of the claim, as set forth at Article 5 of the Italian Code of Civil Procedure, according to which any subsequent change in the factual or legal circumstances is irrelevant for this purpose.
At EU level, Reg. 1215/2012 establishes the rules applicable in the fields of jurisdiction and recognition and enforcement of judgments in civil and commercial matters.
Moreover, in relation to international private law, Law No. 218/1995 establishes the criteria for determining the existence of Italian jurisdiction (Articles 3-12).
The basis of jurisdiction is the amount of the claim or the nature of the action, as alleged in the complaint.
Taking into account what is stated in European Regulations or other international treaties or conventions applicable in Portugal, Portuguese courts have jurisdiction when the existence of any of the connecting factors foreseen in the Portuguese Civil Procedural Code is confirmed or when such jurisdiction is assigned by the parties through a pact.
Subsequently, all the rules of internal jurisdiction must be fulfilled and upon analysis of the file, the court should confirm that – in that particular case, the value of the process and the rules of territorial competence - jurisdiction cannot be questioned by any of the parties.
In general, Slovak general courts have jurisdiction over private disputes and other private matters that do not belong in the jurisdiction of other courts under the RCCP.
Jurisdiction of Slovak courts applies if a person against who/which a petition has been filed has primary residence or registered office in the Slovak Republic, and where property rights are involved, if such a person has property in the Slovak Republic.
Under Act No. 97/1963 Coll. on international private and procedural law (hereinafter “AoIPPL”), the court shall verify its jurisdiction ex officio before it starts the proceeding on the merits, on the basis of facts that exist at the time of the motion filing. If those facts subsequently change, the court’s jurisdiction remains the same.
The international procedural law stipulates further manners of jurisdiction determination – e.g. if a claim involves real property situated in the Slovak Republic, the Slovak courts have exclusive jurisdiction.
In the event of international disputes, jurisdiction of the court is established:
- according to the EU regulations if the parties have their primary residence or registered office in the EU member state – in particular in accordance with Regulation (EU) No 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; or
- according to a bilateral or convention arrangement or AoIPPL (and where existing arrangements such as a bilateral or convention arrangement do not exist), if the parties do not have their primary residence or registered office in the EU member state.
However, the national and the EU laws admit also the option of choice of the country of court of competent jurisdiction by the parties.
An arbitration contract may exclude jurisdiction of a general court. If such a contract exists, the court does not verify its jurisdiction ex officio, therefore the defendant who challenges the general court’s jurisdiction needs to file a challenge in the court. Such a challenge may be filed by the defendant upon the first procedural action relating to the defendant at the latest. The court will disregard a challenge filed afterwards.
If a Slovak court is the court of competent jurisdiction, that court shall ex officio verify its factual, causal and functional jurisdiction. The court verifies its local jurisdiction only upon objection of the defendant upon the first procedural action assigned to the court.
As a member of the European Union, Sweden is bound by Council Regulation (EC) No. 1215/2012 of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (the Recast Brussels I Regulation). Sweden has also ratified the Convention of 13 October 2007 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Lugano Convention). The Recast Brussels I Regulation stipulates which member state’s courts has jurisdiction in cases where one or more parties are domiciled in different member state. The Lugano Convention provides in principle the same provisions, which are applicable where one or more of the parties is domiciled in any of the European Free Trade Association (EFTA) member states.
Both the Recast Brussels I Regulation and the Lugano Convention stipulate that the parties may in a prorogation or forum selection clause designate the jurisdiction in which a dispute between the parties is to be heard. Chapter 10 of the Code of Judicial Procedure contains a corresponding provision.
Two principal sets of rules determine whether the English court has jurisdiction over a civil dispute: (i) the European jurisdiction regime (including notably the Regulation 1215/2012 (the “Brussels Recast Regulation”)); and (ii) the traditional common law rules. Where the former applies, it takes precedence over the latter. The basic rule under the Brussels Recast Regulation is that a defendant should be sued in his country of domicile. However, there are certain exceptions to this rule and the English courts can also take jurisdiction pursuant to the Brussels Recast Regulation where, for example,
- the dispute is subject to an exclusive jurisdiction clause in favour of England;
- the dispute concerns land located in England;
- in contractual disputes, the obligation in question was or was supposed to be performed in England; and
- in tortious disputes, the harmful event occurred or may occur in England. In contrast, under traditional common law rules, jurisdiction is principally dependant on either (i) service of process (either within or outside of the jurisdiction); or (ii) submission to the jurisdiction by the defendant (by agreement or by appearance). Under the common law rules, the English court retains considerable discretion to decline jurisdiction over a defendant where it decides that there is a more appropriate forum to resolve the dispute. It is not yet entirely clear how Brexit will affect the legal regimes governing jurisdiction in the UK.
Bahraini law provides various basis for jurisdiction to be determined. The CCPL is the main reference in this respect, under which jurisdiction is determined geographically, based on the nature of the dispute/claim and the value thereof. Specific laws may regulate jurisdiction of specific nature, such as the BCDR Law for banking or international trade disputes exceeding 500,000 Bahraini Dinars in value.
The law provides that the defendant who challenges jurisdiction must present its motion orally on a preliminary basis, so that technically the court rules on its jurisdiction with priority. Yet, courts usually defer to rule on motions based on lack of jurisdiction jointly with the merits, so judges hear the merits of complaints and afterwards decide whether they have jurisdiction on the matter. This can be positive, particularly for plaintiffs when defending from a baseless motion for lack of jurisdiction, but it can definitively harm a defendant that presents a suitable motion and has the right to hear its case before a competent court, as it may force the defendant to hear the merits of the complaint notwithstanding the court lacking jurisdiction and ultimately the court deciding in that sense after hearing the merits of the case on a lengthy litigation.
Under Article 10 of Law Number 48 of 2009 on Judicial Power, the court is prohibited from denying adjudication of a case. However, the court’s jurisdiction may be challenged based on certain grounds.
The Indonesian law recognizes 2 types of judicial jurisdiction:
a. absolute jurisdiction; and
b. relative jurisdiction.
Absolute jurisdiction is a classification of authority based on forums. For example, a violation of a military conduct by military personnel is to be adjudicated by the military court. Under such circumstances, if the claim is filed to a general court or religious court, the claim will be declared as inadmissible. To invoke absolute jurisdiction, Article 134 of the HIR stipulates that the presiding judges must initiatively declare that they are incompetent to adjudicate the case at any stage of the proceeding.
Different from absolute jurisdiction, a challenge against relative jurisdiction refers to jurisdiction based on territory. For example, if a claim is supposed to be filed in the South Jakarta District Court but is instead filed in the West Jakarta District Court, the defendant may challenge the relative jurisdiction of the South Jakarta District Court. Please note that this challenge can only be submitted with the defendant’s response towards the claim.
The jurisdiction of the Magistrate’s court and Sessions court is governed by the provisions under the Subordinate Courts Act 1948 (“SCA”) whilst the jurisdiction of the High Court is governed by the provisions under the Court of Judicature Act 1964 (“CJA”).
Generally, the courts’ jurisdiction is determined by a several factors such as the nature of claim, the amount of claim and the locality where the cause of action arises.
In order to determine whether or not a court is competent (has jurisdiction), it must go to the so-called "rules of competence” (jurisdiction and venue rules). Rules of Competence (jurisdiction), include three main factors, being the first one the subject matter of the action, the value of the claims, and the special position of any of the parties (in case some of them is a high ranking official, or judge, or religious leader, etc. the level of the trial court is elevated to assure more independence for the other party). These are called “Absolute Rules of Jurisdiction”. They cannot be waived by the parties and if violated, the entire process is void.
Regarding the subject matter, there are courts of special jurisdiction (civil, labor, family, etc.) and courts that will handle al kind of cases (they are called courts of common competence and are typically located in large rural areas).
In relation to venue, the criteria is territory. The general rule of venue depends on what the object of the action is. If it is a real estate, the competent court well be the one where the real estate is located. If the action is for money or any other object or right, then the competent court will be the one where the defendant has its domicile.
The courts of Appeals and the Supreme Court have common competence over all kinds of subjects but limited to a very broad territory (usually a Region). The Supreme Court is divided into four specialized chambers that exercise their jurisdiction over the entire Chilean territory. Civil and commercial matters are decide by the First Chamber.
The point of departure for a court in determining whether or not it has jurisdiction over a claim is 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). If the dispute falls within the material and temporal scope of that Regulation, and the defendant is domiciled in a Member State of the European Union, then the Court will determine jurisdiction in accordance with the rules of the Regulation.
In the case of disputes where the defendant is not domiciled in a European Union Member State, national rules of jurisdiction are applied by Maltese Courts. There are, however, exceptional instances where the rules of jurisdiction of the Regulation will apply nonetheless. Specifically, the rules relating to exclusive jurisdiction, exclusive choice of court agreements, submission to the jurisdiction, and rules protecting weaker parties will still be applied by Maltese Courts in order to determine jurisdiction, regardless of the domicile of the defendant.
With respect to Malta’s national rules of jurisdiction, the Code of Organisation and Civil Procedure provides that the civil courts of Malta shall have jurisdiction to try and determine all actions concerning the following persons:
(a) citizens of Malta, provided they have not fixed their domicile elsewhere;
(b) any person as long as he is either domiciled or resident or present in Malta;
(c) any person, in matters relating to property situate or existing in Malta;
(d) any person who has contracted any obligation in Malta, but only in regard to actions touching such obligation and provided such person is present in Malta;
(e) any person who, having contracted an obligation in some other country, has nevertheless agreed to carry out such obligation in Malta, or who has contracted any obligation which must necessarily be carried into effect in Malta, provided in either case such person is present in Malta;
(f) any person, in regard to any obligation contracted in favour of a citizen or resident of Malta or of a body having a distinct legal personality or association of persons incorporated or operating in Malta, if the judgment can be enforced in Malta;
(g) any person who expressly or tacitly, voluntarily submits or has agreed to submit to the jurisdiction of the court.
Pursuant to Swiss procedural law, a distinction has to be made between the so-called subject matter jurisdiction and the territorial jurisdiction of the court. While the subject matter jurisdiction is typically subject to mandatory law, the territorial jurisdiction (especially in commercial matters) is often regulated by non-mandatory rules of law only. In the latter case, the places of jurisdiction provided in the applicable statutes may be altered by party agreement (most customarily done by means of including a jurisdiction clause in the contract in question). Alternatively, the plaintiff may also choose to file its claim with a court that does not have territorial jurisdiction (be it on the basis of the law or a jurisdiction clause) and it is then up to the defendant to timely raise a jurisdictional objection. Should it not do so, the defendant will be deemed to have accepted the jurisdiction of the court seised.
Given the mandatory nature of the subject matter jurisdiction, the court will examine its subject matter jurisdiction ex officio based on the applicable (cantonal) statutes. The territorial jurisdic-tion of the court on the other hand will only be further examined in cases where it is (exceptional-ly) subject to a mandatory rule of law or in cases where the opposing party objects to the territorial jurisdiction of the court. The rules on territorial jurisdiction of Swiss courts are specified in the CCP as far as domestic cases are concerned. In international matters, the international civil procedural law rules apply (i.e. the PILA and/or international treaties on jurisdiction ratified by Switzerland, most importantly the Lugano Convention). The aforementioned sets of rules also de-scribe the formal requirements that agreements on jurisdiction have to satisfy in order to be val-id.
The jurisdiction over a claim constitutes a procedural prerequisite and is examined by the court ex officio according to the rules provided in the GCCP and the relevant EU regulation under consideration of: a) its subject matter competence and b) the territorial competence of the courts. The parties may agree, explicitly or tacitly, on the prorogation of the territorial competence.
The court determines on its own accord (ex officio) whether it has jurisdiction. Normally this happens based on the written arguments from the parties in the preparatory phase, but the court can also determine jurisdiction as part of the main hearing in some cases where it is deemed more efficient.
Because of the adversarial tradition of judicial proceedings in Luxembourg, the exceptions of incompetence are to be raised by the defendant at the very beginning of the trial, in limine litis. Only some of the exceptions of incompetence may be raised ex officio by the court seized. Consequently, the NCCP distinguishes between two categories of exceptions of incompetence: the absolute (Article 261 NCCP) and the relative ones (Articles 259 and 260 NCCP).
On the one hand, the absolute exceptions of incompetence cover all rules of substantive jurisdiction. These rules aim to organise the structure and hierarchy of the courts, in order to ensure the coherence of the judicial organisation. These exceptions, because of their public policy nature, may be raised by the defendant and must be raised ex officio by the court incompetently seized. These rules cover the assumptions in which the applicant has made its case before a court of an order, of a nature or of a degree different from that determined by law.
On the other hand, the relative exceptions to jurisdiction sanction rules of jurisdiction that are considered less fundamental for the purpose of maintaining the judicial organisational coherence. Their infringement can consequently only be raised by the defendant.
To hear a claim, courts in the United States must have both subject matter jurisdiction (authority to hear cases of a particular type) and personal jurisdiction (power over a particular person).
Federal courts are courts of limited jurisdiction; thus a party seeking adjudication of his or her claims in a federal forum must establish a basis for federal subject matter jurisdiction. Federal subject matter jurisdiction is established for two types of cases: (1) cases “arising under” federal law, where a cause of action is derived directly from a federal law or implicates a significant federal interest and requires determination of a federal question; or (2) diversity jurisdiction, where parties are “diverse” in citizenship (meaning that no plaintiff shares the same state citizenship with any defendant) and the amount in controversy exceeds $75,000.
State courts are courts of general jurisdiction, and thus have subject matter jurisdiction over all cases, including commercial disputes.
Federal and state courts must also have personal jurisdiction over the defendant. According to the U.S. Supreme Court, to establish personal jurisdiction, the plaintiff must present facts demonstrating: (1) proper service; and (2) that the defendant has “certain minimum contacts with [the State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” The Supreme Court has recognized two variations of personal jurisdiction: (1) “general” (or “all-purpose”) jurisdiction where the defendant’s affiliations with a state are so “continuous and systematic” to render them “essentially at home in the forum state”; and (2) “specific” (or “case-linked”) jurisdiction, where the suit “arises out of or relates to the defendant’s contacts with the forum”.
CCP sets out the rules governing jurisdiction of courts in relation to commercial domestic disputes. In principle, courts of the place of defendant’s domicile have jurisdiction over the dispute. If the defendant is not domiciled in Iran, courts of its temporary place of residence in Iran will have jurisdiction. If no such temporary residence can be identified, courts of the place where the defendant has an immovable property will have jurisdiction. Finally, if the defendant owns no immovable property in Iran, the plaintiff may bring the action in the courts of its own domicile.
Regardless of the foregoing, if the claim is over an immovable property, courts of the place where the property is located will have jurisdiction.
Moreover, where there is a contractual dispute, the plaintiff may also bring its claim before courts of the place where the agreement has been concluded or the place where contractual commitments must be fulfilled.
Finally, if parties to a contract agree to refer their disputes to arbitration in commercial cases (except in bankruptcy, which is not arbitrable as it is in exclusive jurisdiction of courts), courts must decline their jurisdiction.
As mentioned above, public civil courts have general jurisdiction to hear commercial disputes. In practice, however, certain branches of Tehran civil courts have emerged as specialised branches with respect to specific matters such as bankruptcy or intellectual property.
There are also a number of other bodies established by law to hear specific disputes. For instance, disputes arising in relation to capital markets (eg, among issuers, investment advisors, investors, brokers and the regulator) must be resolved by the arbitral tribunal of the Securities Exchange Organisation.
Dutch courts have international jurisdiction if there are legal provisions to this effect or if the parties have selected a Dutch court as the forum for hearing any disputes arising between them. Brussels I Recast (EU Regulation) contains the most important set of rules regarding international jurisdiction. If no international treaty (including Brussels I Recast) applies, the national rules laid down in the DCCP determine whether the Dutch courts have international jurisdiction and accordingly, whether a defendant can be made subject to a lawsuit in the Netherlands. These rules are very similar to the international jurisdiction rules of Brussels I Recast.
The rules of international jurisdiction have, in contrast to the rules on conflict of laws, a public policy nature. This means not only that the court must ex officio determine whether it has international jurisdiction, but also that the court must conduct its assessment regardless of whether it relies on facts other than those on which the parties based their claim or defense.
In order to avoid that the Dutch court will accept jurisdiction on the basis of a tacit choice of forum, the defendant can lodge a motion to dismiss for lack of jurisdiction. This motion must be lodged prior to the statement of defence on the merits or ultimately together with the statement of defence.
In commercial litigation, the court’s jurisdiction is generally determined by the defendant’s domicile. However, concurring jurisdiction in addition of the defendant’s domicile, may have, i.e., at the plaintiff’s choice: (i) the judges where payment is to be made or the obligation is to be performed; (ii) the judges where the contract was executed; (iii) the judges to which the defendant expressly submitted under the contract; (iv) the judges where real estate subject of the complaint is located; and (v) the judges where the damages were caused, in complaints seeking indemnification or reparations.
Jurisdiction is not an easy issue to be covered in a few paragraphs. The general rule is that jurisdiction is for the court in which the defendant is located. However, there are many other rules and exceptions when it comes to jurisdiction.
Articles 20 to 24 of the Civil Procedures Law cover the issue of international jurisdiction.
Article 20 stipulates that, except for real estate matters, the UAE Courts have jurisdiction to hear actions brought against UAE citizens and against expatriates having an address or place of residence in the country.
Article 21 states that the UAE Courts have jurisdiction to hear an action against a foreigner with no address or place of residence in the country if he has a chosen address in the country, or if the action relates to assets or estate located in the UAE, if the action relates to an obligation executed or to be executed in the UAE, or to a death which occurred in the UAE, or to a bankruptcy declared in a UAE court,
The UAE Courts will also have jurisdiction over an action brought by a wife with an address in the country against a husband who previously had an address in the country, and over an action relating to support in respect of a parent, wife, minor, child in guardianship, affiliated child or personal or financial guardianship, if the party requesting the support has an address in the UAE.
If one of the defendants has an address or a place of residence in UAE then the UAE Courts will have jurisdiction to hear the action.
Articles 25 to 41 of the Civil Procedures Law tackle the issues of jurisdiction of the UAE Courts according to the subject matter, value and the domestic jurisdiction of the courts.
Having in mind that there is no special judicial body to hear commercial disputes, the possible questions of competence refer to the jurisdiction, standing (legal interest) and territorial competence of the court. In terms of jurisdiction, according to the Civil Procedure Code. ’ Everyone shall have the right to apply to the court in the manner prescribed by this Code for the protection of their rights and legitimate interests provided by the Constitution, laws and other legal acts or under the contract’. Thus, either the legislation or the contract entitles the plaintiff the right to apply to the court. In what concerns the territorial jurisdiction, the competent court is that of the domicile of the defendant, with the exception of contractual jurisdiction and exclusive jurisdiction (for example disputes about ownership of the real estate, claims from delict relationship etc.).