This document discusses jurisdiction and choice of law in international legal cases. It begins by explaining that the plaintiff chooses where to file a case, but the court must have jurisdiction. There are several factors that influence a plaintiff's choice, such as convenience and procedural advantages. However, courts also have limits on jurisdiction to prevent unfair burdens. The document then contrasts approaches to jurisdiction between civil law and common law countries. It also discusses notification of parties, historical approaches to choice of law, and modern interest analysis approaches.

1. COURSE WORK –INTERNATIONAL HUMAN RIGHTS, REGIONAL AND
DEMESTIC PERSPECTIVES
MAXIMUM OF 3000 WORDS
FONT –TIMES NEW ROMAN 12, SPACING 2.0
Date of Submission; MARCH 7TH
It should be submitted through the portal
QUESTION
“Civil and political rights and economic, social and cultural rights are not fundamentally
different from one another. All rights are indivisible and interdependent.” Discuss.
Jurisdiction
As stated above, the first question in an international case potentially involving conflict-
of-laws problems is which court has jurisdiction to adjudicate the matter. Although the
plaintiff decides where to sue, the courts in that location may not have jurisdiction, or
they may have jurisdiction but be unwilling to exercise it, for reasons of forum non
conveniens (Latin: “inconvenient forum”), as may happen in some common-law
countries.
Rationale behind choice of jurisdiction
There are several factors that affect the plaintiff’s decision of where to file a case. One is
convenience. For example, a plaintiff is likely to want to sue in a jurisdiction that is
reasonably close to his home, particularly because witnesses and evidence may be more
readily available there. Legal questions also are important. A plaintiff may be more
likely to file suit in a jurisdiction that will afford him procedural and other advantages
and where the defendant has assets with which to satisfy an ultimate judgment.
Examples of likely procedural or substantive law advantages include the possibility of a
jury determination of damages in a tort case, the availability of punitive damages, the
ease of obtaining pretrial discovery of evidence (commonly used in the United States),
the possibility of suing on only a part of one’s claim to determine the likelihood of
success before committing resources to a suit on the entire claim (a common practice in
Germany), and advantageous exploitation of variations in liability standards.
However, the place of suit is not entirely up to the plaintiff. The chosen court must have
the power to entertain the case (jurisdiction to adjudicate). The jurisdictional grant will
usually be defined by statute. In addition, the exercise of jurisdiction may also be limited
(as a check on the statutory grant or on the judicial exercise of it) by constitutional
provisions or pervasive principles of law. In the United States this is the function of the
due process clause of the Fourteenth Amendment of the Constitution, which limits the
exercise of the jurisdiction of state courts to protect defendants against unreasonable

2. burdens. The Fifth Amendment similarly limits federal courts in asserting jurisdiction in
cases not based on state law. In addition, in common-law countries, provisions of law or
court decision-making practice may limit the exercise of jurisdiction to adjudicate for
any number of reasons, including the need to prevent local courts from becoming
clogged with litigation with which they have no concern (e.g., litigation between
foreigners concerning a claim that arose abroad), especially when it seems likely that the
courts of the forum state were chosen only as a means of gaining procedural- or
substantive-law advantages not available to the plaintiff in his home country’s courts
(so-called “forum shopping”). Especially in the United States, courts may consider
themselves to be a forum non conveniens in these circumstances and dismiss the action.
This occurred in Piper Aircraft v. Reyno, a suit filed in the United States on behalf of
Scottish parties whose relatives were killed in an airplane crash. The flight originated in
Scotland and was scheduled to end there; the aircraft was owned by a British entity; the
pilot was Scottish; and all of the relatives were Scottish. Only the defendants—the
airplane manufacturer (Piper) and the propeller manufacturer—had a connection to the
United States. Because the plaintiffs sought remedies that were not available—at least
not to the extent desired—under Scottish law, they decided to bring suit in the United
States, making this a clear case of forum shopping.
American courts may dismiss for forum non conveniens when the exercise of
jurisdiction would be unduly burdensome for the defendant. In many cases, dismissal
protects the foreign defendant as much as it protects the local court from unfair burdens
of foreign litigation. Courts likewise will not entertain actions concerning title to real
property located in another country; while their judgment would bind the parties before
them, the power to deal with the property itself (with effect as against all potential
claimants) belongs solely to the country of location (situs).
Civil-law countries generally do not dismiss actions for reasons of forum non
conveniens. The European Court of Justice has held expressly that the allocation of
jurisdiction by EU law (namely, the Brussels I Regulation) is binding on national courts.
As an exception, the Brussels II Regulation permits dismissal or transfer for forum non
conveniens reasons in child-custody cases. (See below Recognition and enforcement of
judgments.)
Each country determines the jurisdiction of its courts to entertain a civil law suit. In
federal countries or unitary systems with strong traditions of regional or provincial
jurisdiction (e.g., the United States, the United Kingdom, Canada, and Switzerland), it
becomes necessary to have rules to determine in which jurisdiction a civil suit may be
brought. In some countries (e.g., Germany and Austria) the central (national) law
governs, while in others the constituent states may determine the jurisdiction of their
courts themselves (e.g., the United States). Although state-court jurisdiction is a matter
of state law in the United States, federal constitutional law, particularly the Fourteenth
Amendment’s due process, equal-protection, and privileges-and-immunities clauses,
limits the assertion of state-court jurisdiction.

3. Most countries allow the parties to agree to the jurisdiction of a court. Consent may take
the form of an express agreement in the initial business contract or at the time the
dispute arises. Alternatively, consent may be the result of conduct. The plaintiff’s
consent appears from the filing of the action. The defendant’s consent may be presumed
when, rather than objecting to the court’s jurisdiction, the defendant confesses judgment
or appears and begins to litigate the controversy. Even when both parties consent to a
court’s jurisdiction, the court in a common-law country may still decline to hear the
case—for example, when neither of the parties nor the controversy has a connection to
the country in which the court is located. In most cases, however, a court’s jurisdiction is
not an issue unless and until the defendant objects to it.
Differences between civil-law and common-law countries in the absence of a choice by
the parties
Traditionally, civil-law and common-law countries have followed different approaches
in determining which court has jurisdiction in a civil action when the parties have not
agreed on or submitted to the forum. Civil-law countries start from the premise that there
is one principal place where a suit can be filed: the domicile of an individual or the seat
of legal persons such as a corporation (“general jurisdiction”). In addition to these
general bases of jurisdiction, a suit ordinarily may be brought in the courts of the place
to which the suit has a special connection—e.g., where a tort was committed or where its
effects were felt, where the alleged breach of a contract occurred, or, if title to real
property is involved, where the property is located (“specific jurisdiction”). Increasingly,
countries have limited the exercise of jurisdiction (and have prohibited parties from
varying these limitations by agreement) for the protection of weaker parties, such as
employees and consumers. Such a pattern has emerged, for example, in the procedural
law of the EU.
Courts in common-law countries, particularly the United States, also assert jurisdiction
on these bases but additionally will exercise jurisdiction simply on the basis of physical
power over the person of the defendant. Thus, a court in the United States has
jurisdiction over a defendant if he has been served with the documents commencing the
suit in the territory of the state in which the court is located, even if he was there only
temporarily or while in transit (“transient jurisdiction”). The United Kingdom and
Ireland also exercise jurisdiction on this basis. U.S. law also provides for jurisdiction
over a company when it has been connected in some ongoing way with the state, even if
the particular dispute does not arise out of that connection. Thus, a court is authorized to
assert jurisdiction when the defendant is “doing systematic and continuous business”
within its state, even if the dispute arose elsewhere.
Most countries provide some bases of jurisdiction for the benefit of local plaintiffs.
French law, for example, grants jurisdiction if the plaintiff possesses French nationality,
and German statutory law permits a local plaintiff to sue an absent defendant on the
basis of any property the defendant may have in Germany, regardless of whether the
litigation is related to the property or even to Germany in any other way (though modern
German court decisions have given provision a more limited reach). Rules such as these,
which favour plaintiffs (“transient jurisdiction” also falls into this category), are known

4. as “exorbitant” rules of jurisdiction. Within the EU they have been abrogated in cases in
which the defendant is habitually resident within the EU. However, EU member-states
may retain exorbitant jurisdictional bases of national law in cases involving non-EU
defendants. Internationally—i.e., beyond the EU—these rules, as well as the American
“doing business” jurisdictional rule, are a source of considerable tension. The Hague
Conference on Private International Law sought to formulate an international convention
on jurisdiction and judgment recognition. The effort was abandoned when the
differences proved too large to bridge. Instead, a much more limited convention on
choice of court agreements was adopted in 2005 and proposed for adoption by member
states and others.
Both civil-law and common-law countries have special rules governing suits for
judgments in rem (Latin: “with respect to the thing”), which concern proprietary legal
rights. Unlike actions for judgments in personam (Latin: “with respect to the person”),
which concern personal legal rights and may seek money damages or injunctions to do
or not to do an act, an in rem action seeks a judgment that produces effects of its own on
a legal relationship. Examples include actions to quiet title to land, to foreclose a
mortgage on land (by selling it), and to remove a party’s interest that encumbers title to
land. In common-law countries, family-status actions (e.g., divorce or the creation of an
adoptive family-child relationship) have been likened to in rem actions; for example, in
divorce proceedings, particularly in the United States, the domicile of each spouse
localizes the status and permits the court at the domicile to assert divorce jurisdiction. At
the same time, residence of varying length (from several weeks to several months) may
take the place of—or may presumptively equal—domicile for divorce-jurisdiction
purposes. In contrast, civil-law countries have not likened divorce jurisdiction to in rem
proceedings. They provide for divorce, including the possibility of ex parte divorce (i.e.,
only the petitioner is before the court), on the basis of a close relationship to the forum
state—e.g., residence of a specified length of time. Central to the continued divergence
of these jurisdictional approaches is the applicable law: a court following an in rem
approach to status matters will always apply its own law. In contrast, courts in civil-law
countries treat the action as in personam and make a choice-of-law determination that
focuses on personal connecting factors such as the nationality or marital residence of the
parties. Because civil-law courts make choice-of-law decisions with reference to the
particular parties and their case, jurisdictional standards can be more liberal in those
countries than in common-law countries, where less-restrictive standards would lead to
forum shopping.
Notification of parties
Fundamental fairness requires that the defendant receive notice sufficient to afford him
an opportunity to defend. In common-law countries this notice is effected by “service of
process” on the defendant; similar procedures exist in civil-law countries. Service on the
defendant in person is considered ideal; alternatively, “substituted service” (e.g., even by
publication) is a last resort when the whereabouts of the defendant are unknown.
International cases pose special problems. Countries often cooperate bilaterally, either
on the basis of express agreements or as a matter of practice, in aiding each other’s
courts to effect service on the defendant. A very effective multilateral mechanism is the
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in

5. Civil or Commercial Matters, to which some 50 countries, including the United States,
China, Russia, and all the EU states, are party. It provides for a “Central Authority” in
each member state that receives service requests from other convention states and
executes them according to its own national procedures.
Choice of law
In its choice of the applicable law, the court that exercises jurisdiction determines which
law to apply to a case that involves foreign parties, foreign transactions, or a number of
foreign elements. In a simple world, the court would always apply its own law, the law
of the forum (known in Latin as the lex fori). Indeed, some modern methodologies,
particularly in the United States, favour the lex fori approach.
Historical development
Classic theories of conflicts law were territorially oriented. The German jurist and legal
scholar Friedrich Karl von Savigny (1779–1861) sought to identify the law where,
“according to its nature,” the legal problem or relationship had its “seat.” Anglo-
American law also sought the territorially applicable law because, in the view of the
American legal scholar Joseph Beale (1861–1943), whose thoughts shaped much of
American conflict-of-laws theory in the first half of the 20th century, that is where the
rights and obligations of the parties “vested.” This vested-rights doctrine maintained
that, once a right was created in one locale, its existence should be recognized
everywhere. Classic theories of conflicts law used a number of connecting factors to
determine the territorially applicable law. In matters of family law, Anglo-American law
used the parties’ domicile (narrowly defined). In civil-law countries, by contrast, a
person’s nationality was until recently the most important connecting factor. Because of
the influence of the Hague Conference on Private International Law, however, the
reference is now more commonly to the law of a person’s “habitual residence” (as it is in
the law of jurisdiction).
For torts, American law traditionally looked to the law of the place of injury, whereas
European law referred either to it or to the law of the place where the wrongful conduct
had occurred. Some European systems referred to the law of either of these places; this
was, and continues to be, the plaintiff-favouring choice-of-law rule in Germany. For
contracts, most legal systems looked to the place of performance for breach but
stipulated that the place of formation was a more important connecting factor for
questions of validity. These examples illustrate that rather well-defined connecting
factors can identify the applicable law in a predictable manner, subject to exceptions in
certain difficult cases.
Despite, or perhaps because of, their predictable results, these rules at times failed to
serve the interests of justice: they were inflexible, and they did not prevent important
aspects of a particular case from being overlooked. Such problems could have occurred
in cases involving the fortuitous commission abroad of a tort involving parties with a
common domicile in the forum or in another state (where the long-term effects of the
tort would be felt) or the conclusion of a contract in an unrelated state (for example, at a
trade fair) between two or more parties, all of whom conducted business in a common

6. (but different) state. In both examples, the common (“home”) law of the parties might
serve the parties’ interests—and those of society—better than the mechanical application
of traditional tort or contract choice-of-law rules. Consequently, courts and parties
resorted to so-called “escape devices” that yielded better, more appropriate results.
Among these is the recharacterization of a set of facts—e.g., the recasting of a question
of contract as a tort or a tort question as one of family law. For example, what law
governs the question of whether spouses have the capacity to sue each other or whether
they have immunity? In a personal-injury case, is this a question of tort law (i.e., the law
of the place of injury) or family law (law of the state of the marital domicile)? If the two
laws differ, the characterization of the issue may produce different outcomes. The escape
from rigid rules by means of recharacterization resulted in a period of considerable
uncertainty, especially in the United States.
Contemporary developments
New approaches to choice of law, starting with the governmental-interest analysis
developed by the American legal scholar Brainerd Currie, began to emerge in the 1950s.
Currie’s approach sought to determine whether a “true” or “false” conflict exists
between the law of the forum state and that of the other involved state. A false conflict
exists if the laws of both states do not differ; if, though ostensibly different, both laws
are designed to effectuate the same policy; or if one law is construed to be inapplicable
to cases such as the one before the court. If by these guidelines the other state is
determined not to have an interest, a false conflict exists, thus making the local law of
the forum the applicable choice of law.
In cases of “true conflict”—i.e., in cases in which both the forum’s law and another law
claim applicability—Currie called for the application of forum law. He rejected any
evaluation or weighing of the competing state interests, considering this to be a
legislative, not a judicial, function. Contemporary applications of interest analysis do
undertake to weigh the relative interest; an example is California’s “comparative
impairment” approach. Overall, governmental-interest analysis has had a significant
influence on modern American conflicts law.
Another approach, known as the better-law approach, attempts to determine which of
two potentially applicable laws is better as a solution to the problem at hand. Not
surprisingly, both the governmental-interest and the better-law approaches tend to apply
the lex fori, either because the other law is deemed to be inapplicable (i.e., the other state
is disinterested, or there is a so-called “false conflict”) in view of the forum’s
determination that it has the greater interest in having its law applied or because forum
law, according to the better-law approach, is deemed to be better. American case law
employing these approaches has tended to display a “homeward trend”—i.e., one that
favours the home forum.
Applications in the United States
The American Law Institute (ALI), a private association of lawyers, judges, and law
professors, drafts so-called “restatements” of specific areas of the law. Bearing some

7. resemblance to European codes in their form and structure, the ALI’s restatements
synthesize all U.S. state case laws on a particular subject, such as tort, agency, or
contracts. As the laws change, the ALI publishes new restatements. Although the
material presented in them is not law, many ALI restatements have proved so reliable
that courts have been known to cite the restatement instead of case law precedents. This
has occurred, for example, with the restatements of contract and of tort law.
The Restatement of the Law, Second: Conflict of Laws (1971–2005) not only updated its
predecessor document (which was promulgated in 1934 and reflected a bias toward
vested-rights thinking) but took a forward-looking stance by presenting recommended
approaches, particularly for tort and contract conflict-of-laws cases. Drawing upon all of
the approaches that had been the subject of academic discourse over the preceding
quarter century, it called for the applicable law to be the law of the place where the
“most significant relationship” between the transaction (in contract) or occurrence (in
tort) and the parties is located. Furthermore, the Restatement (Second) provides a
number of connecting factors (“contacts”) to determine the place of the most significant
relationship, such as the place of the tort, the domicile of the parties, and so forth. These
contacts are to be evaluated in light of the “general principles” of section 6 of the
Restatement (Second). They include party expectations, societal interests—including the
policies underlying particular rules of law—ease in the administration of justice, and
fairness, among others. This approach, which some earlier contract cases had called the
search for the contract’s “centre of gravity,” has been very influential in the United
States.
Nevertheless, several of its features can make its application somewhat uncertain. For
example, because the criteria provided by the Restatement (Second) are not ranked in
order of priority, different courts may assign different priorities, thereby contributing to
different (divergent) results. The Restatement (Second) also provides expressly that the
choice-of-law determination be made for each issue of the case; as a result, different
laws may apply to different issues of a case (a situation known as dépeçage [French:
“break into smaller pieces”]). This “splitting” of a case into its various component issues
may promote just solutions for difficult international cases, but the practice significantly
increases the burden on courts and on the involved parties. In addition, it diminishes the
decision’s value as a precedent for later cases, even if they differ only slightly. Finally,
the general principles of the Restatement’s section 6 accommodate all doctrinal
schools—from interest analysis to the better-law approach—thus giving courts
substantial leeway. Predictability thus depends on the development of a consistent body
of case law, yet its orientation may differ from state to state.
Applications in EU member countries
European choice-of-law methodology has undergone similar changes, both in the law of
individual European states and within the EU—in the latter first as a result of the Rome
Convention and more recently as the result of EU legislation. In tort the EU’s Rome II
Regulation contains specific rules for a few torts but in general calls for the application
of the law of the place of injury, with exceptions in favour of the law of the parties’
common habitual residence and, as an alternative, of a more closely connected law. In
contract the Rome I Regulation also provides specific choice-of-law rules for a number

8. of contract types—for example, seller’s law for contracts for the sale of goods in the
absence of a contrary party stipulation. In so doing, it translates the preceding Rome
Convention’s reference to the law of the party rendering the “characteristic
performance” (e.g., selling the goods, providing the service) into concrete rules. The
Rome Convention’s underlying policy—application of the most closely connected law—
becomes the default rule when no specific rule applies. The Rome I Regulation also
provides special rules for consumer, insurance, and employment contracts.
Applications in other countries
In many countries around the world, including many that are civil-law oriented, recent
legislation similarly has made the determination of the applicable law more flexible.
Many codifications, such as in eastern Europe outside the EU, or legislative projects,
such as in China, no longer make reference to a single governing law in tort but also give
weight to such alternatives as the parties’ common domicile and other relevant factors.
Other considerations
Differences between the conflicts law of different countries may raise additional choice-
of-law questions, such as those pertaining to the renvoi (French: “send back”) principle.
If the foreign law, to which the forum’s conflicts rule refers, contains a conflicts rule that
refers back to the law of the forum, will the latter accept the reference and apply its own
law? Similarly, if the foreign law contains a conflicts rule that refers to the law of a third
country, will the forum follow that reference? The underlying question hinges on
whether the forum’s reference to foreign law includes that law’s conflicts rules in the
first place. Many legal systems answer the question in the affirmative and thereby
resolve the two questions posed in the foregoing. But not all conflicts systems utilize
renvoi (most American courts do not), and even those legal systems that do use it or
have used it in the past exclude renvoi. This is now the case in EU conflicts law with
respect to tort and contract cases.
On procedural issues, a court will always apply its own law. There is no agreement,
however, on which issues are procedural and which are substantive. Time limitations
(statutes of limitations), for example, are considered substantive in civil-law countries
but procedural in certain other countries and in many states of the United States.
Recognition and enforcement of judgments
Judgments are sovereign acts that have no force beyond the jurisdiction of the court that
renders them. Thus, if assets for satisfying a judgment in favour of a creditor are
unavailable locally, recognition and enforcement of the judgment will need to be sought
in a state in which the debtor does hold assets. Within the United States, recognition and
enforcement of sister-state judgments are mandated by the full faith and credit clause of
the federal Constitution and are facilitated procedurally in many states by uniform state
laws. For EU member-states the Brussels Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters (1968) and its successor,
the Council Regulation on Jurisdiction and the Recognition and Enforcement of
Judgments in Civil and Commercial Matters (2000; Brussels I), perform a similar

9. function by mandating the automatic recognition and enforcement of EU member-state
civil and commercial judgments in all other member states, subject only to few
exceptions. Another EU regulation, the Council Regulation concerning Jurisdiction and
the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters
of Parental Responsibility (2003; the Brussels II Regulation), does much the same for
divorce and custody decrees.
Internationally, the recognition of a judgment is a matter of national law, although it is
sometimes dealt with in bilateral or multilateral treaties (except in the United States,
which is not party to any judgments-recognition treaty). National legal systems will
ordinarily recognize a judgment rendered in a foreign country (sometimes on the
condition of reciprocity), provided that the rendering court had jurisdiction (as measured
by the standards of the recognizing court), that the judgment debtor had received notice
sufficient to enable him to defend, and that the foreign judgment does not offend the
public policy of the recognizing state. Most systems do not allow a review of the foreign
judgment on the merits (a so-called révision au fond [French: “review of the
background”]). However, when a court rejects a foreign judgment on the basis of public
policy, it will necessarily have considered substantive or procedural aspects of foreign
law and, because of its disapproval of them, refuse to accept the outcome of the case. A
German court, for example, will refuse to recognize an American punitive damage
judgment because, according to the German view, punitive damages exceed the purview
of tort law, which seeks compensation but not punishment. Similarly, an American court
may refuse to recognize an English judgment for damages because English substantive
and procedural law (e.g., the burden of proof in defamation) violates U.S. constitutional-
law principles.
In composite jurisdictional systems such as those of the United States and the EU, where
a central norm establishes jurisdictional limits for the constituent units, alleged
jurisdictional defects must be raised directly (on appeal within the particular constituent
unit’s system) when both parties are before the court. They cannot be raised
collaterally—i.e., as a defense against recognition of the judgment in another constituent
unit. The effect of the first court’s judgment (and of issues necessarily bound up with it)
on the immediate parties, when not appealed or when affirmed on appeal, becomes res
judicata (Latin: “the matter is adjudicated” or “a thing adjudged”) and is not open for
reexamination in a second forum (nor in the original forum after a period fixed by the
statute of limitations has expired). The scope of a judgment’s res judicata effect (the
recognition of a judgment as a bar to the initiation of a new suit all over again) is
ordinarily that which attaches under the law of the rendering state. Exceptions may apply
when the judgment is rendered by default (i.e., the defendant is not before the rendering
court), when certain effects are unknown in the law of the recognizing country, or
perhaps also when a judgment goes beyond the res judicata effect that the latter’s law
would accord.
International criminal law

10. Criminal law is part of public law and is not subject to the individual’s disposition (in
the way that parties can choose the applicable law by contract in their private
transactions), its sphere of application is determined by public international law, which
defines the reach of state sovereignty. Prosecution and court proceedings are almost
never governed by foreign laws. The most important issue is therefore whether a state’s
authorities may commence criminal proceedings in cases involving foreign persons or
elements.
According to the generally recognized principle of territoriality, the country where the
offense was committed is competent to investigate and adjudicate it, because that
country’s authorities are responsible for preserving law and order in its territory.
Territoriality may be modified in two ways. First, countries may claim jurisdiction over
offenses committed by their citizens abroad. Second, public international law recognizes
the jurisdiction of all countries over certain universal crimes, including genocide and
piracy. A number of bilateral and multilateral conventions facilitate the obtaining of
evidence, provide legal aid, or ensure the extradition of offenders. In the EU the Europol
Convention provides for judicial and police cooperation in criminal matters. See also
international criminal law.
Max Rheinstein
Ulrich M. Drobnig
Peter Hay