International Litigation and the Quest for Reasonableness: Essays in Private International Law

By Andreas F. Lowenfeld | Go to book overview

4
Jurisdiction of Courts

A. INTRODUCTION: FOUR QUESTIONS AND A FRAMEWORK
The bases of judicial jurisdiction in civil actions are much less controversial than the subjects discussed thus far. Actor sequitur forum rei is the fundamental principle accepted virtually everywhere. Plaintiff follows the defendant to the latter's forum, i.e., to the defendant's domicile. Evidently jurisdiction founded on defendant's domicile is not sufficient, and the discussion here, as in other dicussions of the subject, will quickly turn to other bases, some controversial, some almost universally agreed. I want to raise four questions concerning jurisdiction of courts over non-residents.
1. The defendant's domicile seems to be the only place where no one asks, in an inquiry directed to jurisdiction, what the claim or cause of action is about. Putting aside claims concerning real property and actions arising out of family relationships--divorce, child custody, and the like--it seems that any kind of claim can be litigated at the defendant's domicile, regardless of where the events giving rise to the claim occurred.1 In short, judicial jurisdiction on the basis of defendant's domicile--or for a corporaU+0AD tion its principal place of business--is general jurisdiction, to use the term introduced in the United States by von Mehren and Trautman in the mid- 1960s.2

Should the domicile of the defendant be the only place for general jurisdiction, as was the view of the drafters of the Brussels Convention?3 Or should other bases of jurisdiction, such as presence or doing business in a given state, or even being personally served with process in that state, support jurisdiction in actions that have no link to the forum state, or no link to the presence or activity of the defendant in that state, as in the American, and I think the Anglo-American, view?

____________________
1
In some instances, to be sure, a contention may be raised that the plaintiff has chosen an inappropriate forum. It is rare, however, that the defense of forum non conveniens will succeed at the domicile or principal place of business of the defendant.
2
See Arthur T. von Mehren and Donald T. Trautman, "'Jurisdiction to Adjudicate: A Suggested Analysis'", 79 Harv. L. Rev. 1121 ( 1966). So far as I have been able to discover, the term has not caught on outside the United States, but the concept is reflected in numerous writings, as well as in the Brussels Convention, as discussed hereafter.
3
Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed at Brussels, Sept. 27, 1968. A convenient source for the Convention, as amended by the various treaties of accession, is [ 1990] OJ C189.

-46-

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