How does the court determine whether it has jurisdiction over a claim?
Three are three major lines of inquiry that a court conducts in order to determine whether it has jurisdiction. The first is determining whether it has the pecuniary jurisdiction to hear the claim. The second is whether it has the territorial jurisdiction to adjudicate upon the matter. The third, which is linked with the second, is to see whether the matter falls within the subject-matter jurisdiction of the court. Courts typically look at the place where the cause of action arose, where the defendant resides or conducts his business in determining whether they have territorial and subject-matter jurisdiction.
In the case of disputes whereby a defendant is domiciled in a Member State of the European Union, Maltese Courts would apply the provisions of Regulation (EU) No. 1215/2013 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).
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. In this regard, our 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.
Section 16 of the SCJA provides that the High Court has jurisdiction to hear and try any action in personam where: (a) the defendant is duly served with any originating process (whether within or without Singapore); or (b) the defendant submits to the jurisdiction of the High Court.
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.
The court determines whether it has jurisdiction over a claim analysing two elements: whether it has objective jurisdiction (ie jurisdiction over the dispute, there is a list of matters the hearing of which is exclusively attributed to commercial courts, including, amongst others, bankruptcy, unfair competition, antitrust, industrial property and intellectual property) and territorial jurisdiction (ie geographic jurisdiction).
Pursuant to the Spanish Civil Procedure Act, defendants can claim that the court before which the lawsuit has been filed lacks authority to hear the case by filing a motion to dismiss for lack of jurisdiction (or declinatoria). The motion must be submitted within the first ten working days within the time limit of twenty working days to respond to the lawsuit from the service of the lawsuit. Once the motion is filed, the time limit to respond to the claim and the main proceedings are automatically suspended until this motion is ruled on.
Under Article 10 of the Law Number 48 of 2009, the court is prohibited to deny adjudication of a case; however, there are issues to challenge the jurisdiction of the court over a certain case. Indonesian laws recognize 2 (two) types of judicial jurisdiction:
a. Absolute jurisdiction; and
b. Relative jurisdiction.
Absolute jurisdiction is a classification of authority that differs in 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 shall be declared inadmissible. To invoke absolute jurisdiction, Article 134 of the HIR stipulates the presiding judges must initiatively declare that they are incompetent to adjudicate the case at any stage of the proceedings.
Different from absolute jurisdiction, challenge against relative jurisdiction refers to the territorial jurisdiction. For example, if the claim is supposedly filed in the South Jakarta District Court but is then filed in the West Jakarta District Court, then the defendant may argue to challenge the relative jurisdiction of the South Jakarta District Court. Please note that this challenge shall only be submitted along with the defendant’s response towards the claim.
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 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).
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 he thinks has 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.
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.
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.
If a commercial contract contains an express choice of jurisdiction clause, the Hong Kong courts will usually honour such clause. In the absence of such choice, the Hong Kong courts have discretion to decide whether Hong Kong is the most appropriate jurisdiction for trial (i.e. whether the contract has a substantial connection to Hong Kong as a jurisdiction). The factors which the courts will consider include:
- the place of domicile or residence of the defendant;
- where the contract was entered into;
- the governing law of the contract;
- where the contract was performed;
- where the contract was breached; and
- where the assets (especially immovable assets or intellectual property) are located or registered.
With respect to tortious disputes, in general Hong Kong will be the appropriate forum for torts committed in Hong Kong. For torts committed outside of Hong Kong, the court will select the forum which has the most “real and substantial connection” to the action. To determine this, the courts may consider factors such as:
- the place of residence of the parties;
- the parties’ place of business;
- where loss was sustained;
- whether the relevant act is actionable in Hong Kong; and
- the availability of witnesses.
A Hong Kong court may of course decline jurisdiction when it decides an overseas court is more appropriate to hear the case.
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).
This depends on a number of factors, including:
a. Value of the claim;
b. Nature of the claim;
c. Agreement between the parties, for example, the contract may contain a ‘jurisdiction clause’ which provides that the contract is to be governed by the laws of Ireland;
d. Other factors, e.g., where the damage occurred, where the contract was concluded etc.
While the material jurisdiction of the court seized (e.g. of the commercial court) is examined by the court ex officio, the territorial jurisdiction is examined only upon objection of the defendant party (except in cases of mandatory territorial jurisdiction). Territorial jurisdiction is set forth in national (Code of Civil Procedure) and international civil procedure law (mainly the Lugano Convention and the Swiss Federal Code on International Private Law ), whereby agreements on the territorial jurisdiction are generally accepted and are also customary in commercial contracts.
In Chile, the court determines if it has jurisdiction over a claim by following the rules of “Competence”, which is defined as the power of each judge or court to adjudicate those matters which the law has placed within its sphere of authority.
The court's competence is often defined by the subject matter in litigation, its economic value and the venue or location.
The subject matter will determine whether the civil courts, family courts, criminal courts or labour courts will have jurisdiction to deal with the matter.
The domicile of the defendant, main office of a company, location of real estate, and location where a contract is executed are several of the bases for determining the appropriate judicial district for filing a claim.
Once a case commences in a competent court, all others lose their competence as to that case. Chilean legislation allows the question of competence to be raised by the defendant and decided by the court right away.
The court will ex officio determine whether it has jurisdiction as soon as the administrative fee is paid. Generally, the court will examine the statement of claim to establish if anything therein indicates that the court does not have jurisdiction. If in doubt, the court would normally issue a remedial injunction to the claimant to provide opportunity to argue on the jurisdiction issue. Eventually, the court will rule on its jurisdiction based on international legislation or treaties applicable or, in the absence thereof, national sources of law.
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 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.
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.
Geographic jurisdiction is determined by the defendant’s place of residence. In most instances, jurisdiction by subject matter is self-evident, such as in banking disputes. If a claim has been rejected by two tribunals for lack of jurisdiction, a special tribunal of the Ministry of Justice determines which tribunal must hear the case.
Challenges to a court’s or tribunal’s jurisdiction on the basis of an agreement to submit disputes to the courts of another jurisdiction or to arbitration must be lodged before filing defences or other motions. Once a defence or motion is filed, the defendant is deemed to have accepted the tribunal’s jurisdiction.
This is usually decided as part of the preparatory phase of the case based on written arguments from the parties. Jurisdiction issues may also be heard and determined at the main hearing if this is considered expedient due to their connection to the claims to be determined or other circumstances.
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”.
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. However, 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)).
The jurisdiction of the court will depend on whether the rules in the recast Brussels Regulation apply or the fallback position of the English common law (or other regulation for specialist matters). The recast Brussels Regulation applies to “civil and commercial” matters, and so covers most commercial disputes before the court. The court will generally have jurisdiction where the defendant is domiciled in England and Wales (subject to lis pendens or the exclusive jurisdiction of other EU courts). The court will also have jurisdiction where there is an exclusive jurisdiction clause in favour of England and Wales, or a close connection to England and Wales (e.g. if the dispute concerns land in England), or certain other connecting factors are met (such as where the defendant is domiciled in the EU and the contract in dispute was due to be performed in England or the tort took place there). Very briefly, the common law rules allow the court to take jurisdiction if the claim form is served on the defendant whist they are physically present in England and Wales, if the defendant submits to the jurisdiction voluntarily or if the court gives permission under one of the specific heads for permission (which depend upon showing a connection to England). The court retains considerable discretion under the common law to refuse jurisdiction if England is not the most appropriate forum. The position could change substantially after BREXIT depending upon what deal the UK and EU strike.
"Jurisdiction" has two sides to it under the Danish Administration of Justice Act: Subject-matter jurisdiction and territorial jurisdiction.
Subject-matter jurisdiction regards the type of court that should hear the case. That could be whether or not the case should be heard by a District Court or if the case instead should be referred to the Maritime and Commercial Court if the dispute is about EU trade mark or EU design over which the Maritime and Commercial Court has exclusive jurisdiction. The court ex officio determines whether it has subject-matter jurisdiction and can consider this issue throughout the entire case as the scope of the case may of course change during the preparations.
Territorial jurisdiction regards if a case can be heard by a Danish court and if so to which court the writ of summons should be filed. According to the Danish Administration of Justice Act paragraph 248 the court should ex officio determine its competence. This rule applies in situations where the case is governed by the exclusive jurisdiction of the courts of another EU-/EFTA country. In practice the main rule is different from the Danish Administration of Justice Act. In the majority of cases, the court does not ex officio determine if the court is competent if the defendant participates actively in the process and does not object to the jurisdiction. Therefore, the defendant must object if the defendant believes that the case should be heard by a different court. Otherwise the court considers itself competent to hear the case.
Once a claim is filed, French courts verify ex officio whether they have international, territorial (as to the place) and subject-matter jurisdiction.
French courts will primarily determine whether they have jurisdiction pursuant to the EU Regulation no. 1215/2012 dated 12 December 2012 (“Brussels I” Regulation recast), which applies to the European member States’ courts’ jurisdiction in relation to civil and commercial matters, when the defendant resides in a member state. Most commercial disputes fall within the scope of the Brussels I Regulation.
The basic jurisdiction rules under the Brussels I Regulation are similar to the French domestic rules. When there is a valid jurisdiction clause, French courts must apply it. In the absence of such clause, the general rule is that the courts of the country where the defendant resides have jurisdiction. The Brussels I Regulation also provides special jurisdiction rules, which apply to contractual and tortious claims and offer an additional option to the claimant:
- for contractual obligations, the courts having jurisdiction are the courts of the country of the place of performance of the obligation in question (i.e. for a sale, the place of delivery; for a provision of service, the place of provision);
- for non-contractual claims, the courts of the country where the harmful event occurred have jurisdiction.
In specific subjects, such as contracts of intermediaries, French courts may apply international conventions, which provide for special jurisdiction rules.
When a dispute falls outside the scope of the Brussels I Regulation and the international conventions, French courts determine whether they have jurisdiction pursuant to the rules of the French Code of Civil Procedure (see below).
If French courts do not have jurisdiction on the basis of the rules of the French Code of Civil Procedure, the French Civil Code provides for a special forum based on the nationality of the parties (i.e. French courts generally have jurisdiction over disputes involving a French party).
Jurisdiction over purely domestic claims is governed by the rules of the French Code of Civil Procedure.
As a principle, in commercial disputes, parties are entitled to choose the courts through a jurisdiction clause. Such a clause is valid provided that the parties are traders and that the clause appears explicitly in the parties’ convention.
In the absence of such jurisdiction clause, the courts of the place where the defendant lives have jurisdiction.
There are special rules applying to contractual and tortious claims.
In some specific subject-matters, only the courts sitting in certain cities have jurisdiction. For instance, disputes relating to anti-competitive practice can only be heard by the Commercial Courts of Bordeaux, Fort-de-France, Lille, Lyon, Marseille, Nancy, Paris and Rennes. All appeals are heard by the Paris Court of Appeal.
- The Commercial Court has jurisdiction to hear disputes between traders (defined as those who perform commercial acts as their usual activity), credit institutions, disputes regarding commercial companies and disputes concerning commercial deeds (such as promissory notes and bills of exchange) between parties of any kind. The Commercial Court also has jurisdiction over proceedings relating to economic difficulties of commercial companies.
- When one of the parties is not a trader, civil courts (Tribunal d’instance and Tribunal de grande instance) normally have jurisdiction.
- In principle, parties may not derogate from the rules of material jurisdiction in the context of a domestic dispute. By exception, traders may opt for civil courts even if Commercial Courts normally have 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.