How does the court determine whether it has jurisdiction over a claim?
Litigation & Dispute Resolution
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.