1 INTRODUCTION
The authority of a court to hear a case and resolve a dispute involving person, property and subject matter is referred as the jurisdiction of that court. It is the legislative function of the Government to enact laws and judicial and/or administrative function to enforce those laws. Thus, the principles of jurisdiction followed by a State must not exceed the limits which international law places upon its jurisdiction. 2. INTERNATIONAL LAW AND JURISDICTION IN CYBERSPACE
Jurisdiction is an aspect of state sovereignty and it refers to judicial, legislative and administrative competence. Although jurisdiction is an aspect of sovereignty, it is not 1
coextensive with it. International law circumscribes a state‟s right to exercise jurisdiction. jurisdiction . The internet today is making a complete mockery of the law….not just the traditional laws but even the so-called modern laws. The very basis of any justice delivery system, the jurisdiction, which gives powers to a particular court to accommodate a particular case, is itself being threatened 2
over the internet; leave alone the other traditional laws. 1. Meaning of Jurisdiction
Jurisdiction is the authority of a court to hear a case and resolve a dispute involving person, property and subject matter. These T hese principles of jurisdiction are enshrined in the constitution of a State and part of its jurisdictional sovereignty. All sovereign independent States possess jurisdiction over all persons and things within its territorial limits and all causes, civil and criminal, arising within these limits.
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2. Issues of Jurisdiction
The issue of jurisdiction has to be looked into from 2 perspectives: i.
1
Prescriptive Jurisdiction It describes a State‟s ability to define its own laws in respect of any matters it chooses. As a general rule, a State‟s S tate‟s prescriptive jurisdiction is unlimited and a State may legislate for any an y matter irrespective of where it occurs or the nationality of the persons involved.
Suryajyoti Gupta, “Civil and Criminal Jurisdiction in the Internet”, Indian Internet”, Indian Bar Review, Review , Vol. 29 (2002) p. 45; See also Lotus also Lotus Case, Case, (1927) PCIJ Ser A 2 Yashraj Vakil, “Jurisdictional Challenges – Cyber Crime Prosecutions”, The Lawyers Collective, Collective , February, 2005, p. 29 3 Lord Macmillan in Compania Naviera Vascongado v. Vascongado v. Steamship ‘Cristina’ [1938] [1938] AC 485
2 3. Enforcement Jurisdiction
A State‟s ability to enforce those those laws is necessarily dependent on the existence of prescriptive jurisdiction. However, the sovereign equality of States means that one State may not exercise its enforcement jurisdiction in a concrete sense over persons or events actually situated in another another state‟s territory irrespective of the reach of its prescriptive jurisdiction. That is, a State‟s enforcement jurisdiction within its own territory is presumptively absolute over all matters and persons situated therein. 3.
Jurisdiction under the Information Technology Act, 2000
The State legislative enactments primarily reflect its prescriptive jurisdiction. For example, the IT Act, 2000 provides for prescriptive jurisdiction as it States: “The provisions of this Act shall apply also to any offence or contravention committed 4
outside India by any person irrespective of his nationality.”
Further this Act shall apply to an offence or contravention committed outside India by any person if the act or conduct constituting the offence or contravention involves a computer, 5
computer system or computer network located in India.
It is the legislative function of the Government to enact laws and judicial and/or administrative function to enforce those laws. Thus, the principles of jurisdiction followed by a State must not exceed the limits which international law places upon its jurisdiction. 4.
International Law
International law governs relations between independent sovereign States. It is the body of rules, which are legally binding on States in their intercourse with each other. The rules are not meant only for the States but also for the international organizations and individuals. Furthermore, it attempts to regular the extent to which one State‟s enforcement jurisdiction impinges or conflicts with others. I. Types of International Law
International law can be studied under following 2 broad headings: a. Public International law International law is also referred to as „public international law‟ as it governs the relations of states. 4
The Information Technology Act, 2000; Section 75 (1) Ibid ; Section 75 (2)
5
3 b. Private International law Private international law is that body of law, which comes into operation whenever a municipal court is faced with a claim that contains a foreign element. The resolution of such private disputes is resolved through the law of `conflict of laws‟ – it it is that part of the private law of a country, which deals with cases having a foreign element. It is a necessary part of the law of every country because different countries have d ifferent legal systems containing different rules. ii. Extra-territorial Jurisdiction a.
Meaning of Extra-territorial Jurisdiction
The public international law reflects the juxtaposition of States (as a legal person) and subjects their jurisdictional sovereignties to certain limitations, i.e. there is a „general prohibition in international law against the extra-territorial extra-territorial application of domestic laws‟.
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b. Sources of Extra-territorial Jurisdiction
It has been recognized under international law that a State may assert extra-territorial jurisdiction under certain circumstances. Following are the sources of these extra-territorial 7
jurisdictions :
Territorial Principle
A State‟s territory for jurisdictional purposes extends to its land and dependent territories, airspace, aircraft, ships, territorial sea and, for limited purposes, to its contiguous zone, continental shelf and Exclusive Economic Zone (EEZ). The principle as adopted by the national courts has been that all people within a State‟s territory are subject to national law, save only for those granted immunity under international law. The territorial principle has following 2 variants: •
‘Objective’ territorial principle , where a State exercises its jurisdiction over all
activities that are completed within its territory, even though some element constituting the crime or civil wrong took place elsewhere; a nd
5
U.S. v. Aluminium v. Aluminium Co. of America, America , 148 F 2d 416 (1945) Supra note 1 note 1
7
4
•
‘Subjective’ territorial principle, where a State asserts its jurisdiction over matters
commencing in its territory, even though the final event may have occurred elsewhere.
Nationality Principle
It is for each State to determine under its own law who are its nationals. Any question as to whether a person possesses the nationality of a particular State shall be determined in 6
accordance with the law of that State. In Nottebohm In Nottebohm Case (Liechtenstein v. Guatemala), v. Guatemala), it was held that „the nationality serves above all to determine that the person, upon whom it is conferred, enjoys the rights and is bound by the obligations, which the law of the State in question grants to or imposes upon its nationals‟. Under the garb of nationality principle, a State may exercise jurisdiction over its own nationals irrespective of the place where the relevant acts occurred. A State may even assume extra-territorial jurisdiction.
Protective Principle
A State relies upon this principle when its national security or a matter of public interest is in issue. A state has a right to protect itself from acts of international conspiracies and terrorism, during trafficking, etc. 7
In Attorney-General In Attorney-General of the Government of Israel v. Eichmann, v. Eichmann, the District Court of
Jerusalem held: “The State of Israel‟s „right to punish‟ the accused derives, in our view, from two cumulative sources – sources – (I) (I) a universal source (pertaining to the whole of mankind), which vests the right to prosecute and punish crimes of this order in every State within the family of nations; and (ii) a specific or national source, which gives the victim nation the right to try any who assault its existence.”
Passive Personality Principle
It extends the nationality principle to apply to any crime committed against a national of a State, wherever that national may be. It in a way provides that the citizen of one country, when
6 7
Nottebohm Case (Liechtenstein v. Guatemala), v. Guatemala), (Second (Second Phase), ICJ Rep (1955) 4 Attorney-General of the Government of Israel v. Eichmann, v. Eichmann, 36 36 ILR (1961) 5
5 he visits another country, takes with him for his “protection” the the law of his own country and subjects those, with whom he comes into contact, to the operation of that law. Though the principle may be referred to as a controversial one, because it extends the „arm of national laws further even in the foreign territories‟, nevertheless, the principle has been adopted as a basis for asserting jurisdiction over hostage takers.
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Effects Principle
It is an extra-territorial application of national laws where an action by a person with no territorial or national connection with a State, has an effect on that State. The situation is compounded if the act is legal in the place where it was performed. The „effects doctrine‟ is primarily a doctrine to protect American business interests and is applicable where there are restrictive trades or anti-competitive agreements between 9
corporations. In Hartford Fire Insurance Co. v. v. California, the question was whether the London insurance companies refusing to grant reinsurance to certain US businesses, except on terms agreed amongst themselves are violative of the US anti-trust laws and tried in the United States. The US Supreme Court held that the US court did have jurisdiction and that there exists no conflict between domestic and foreign law.
Universality Principle
The canvass of the universality principle is quite vast. A State has jurisdiction to define and prescribe punishment for certain offences recognized by the community of nations as of universal concern. It includes acts of terrorism, hijacking of aircraft, genocide, war crimes etc. A state may assert its universal jurisdiction irrespective of who committed the act and where it occurred. The perspective is broader as it was deemed necessary to uphold international legal order by enabling any State to exercise jurisdiction in respect of offences, which are destructive of that order. 5.
International Law and State Law
This dichotomy underlines the fact that there is a „tug-of„tug -of-war‟ war‟ between the State law and the international law. Opposed to this „dualistic‟ view is the „monistic doctrine‟, which states that
8
See, International Convention Against the Taking of Hostage, 1979 Hartford Fire Insurance Co. v. California, v. California, 113 113 S. Ct 2891 (1993)
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6 it is international law, which determines the jurisdictional limits of the personal and territorial competence of States. I.
Application of International Law by Courts
In practice, it is the application application of „statutory elements‟ of both the State and international laws, which help the municipal courts to arrive at a decision. In R. In R. v. Bow v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 10
3), 3), the House of Lords examined whether Augusto Pinochet, the ex-President of Chile, who ruled Chile from September, 1973 to March, 1990 was eligible under the State Immunity Act, 1978 as the Kingdom of Spain had asked for his extradition. Against the Division Court order, the Crown Prosecution Service and the Kingdom of Spain appealed in respect of the determination that Pinochet was entitled to immunity from proceedings as a former Head of State. 11
Earlier, in Ex in Ex parte Pinochet Ugarte (No. 1), 1), the House of Lords ruled that Pinochet did not enjoy immunity from extradition proceedings because no immunity arose under customary international law in respect of acts of torture and hostage taking and also no personal immunity arose under the State Immunity Act, 1978. International law has come out as a dynamic law. It has evolved over time and is far more international community centric now than it was fifty years ago. The traditional principles of international jurisdiction that have been developed and adopted over a period of time are now being extended over to cyberspace to formulate new idiom of cyber jurisdiction. Jurisdiction in Cyberspace
In simple terms, cyber jurisdiction is the extension of principles of international jurisdiction into the cyberspace. Cyberspace has no physical (national) boundaries. It is an ever-growing exponential and dynamic space. With a „click of a mouse‟ one may access any website from anywhere in the world. Since the websites come with „terms of service‟ agreements, privacy policies and disclaimers – subject to their own domestic laws, transactions with any of the websites would bind the user to such agreements. And in case of a dispute, one may have recourse to the „private international law. In case the “cyberspace offences” are either committed
10
R. v. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No.3 ), ), [1999] 2 WLR 827 House of Lords 11 Ex parte Pinochet Ugarte (No. 1), [1998] 1), [1998] 3WLR 1456
7 against the integrity, availability and confidentiality of computer systems and telecommunication networks or they consist of the use of services of such networks to commit traditional offences, then one may find oneself in the legal quagmire.
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The question is not only about multiple jurisdictions but also of problems of procedural law connected with information technology. The requirement is to have broad based convention dealing with criminal substantive law matters, criminal procedural questions as well as with international criminal law procedures and agreements. I.
Convention on Cyber crime rd
The Convention on Cybercrime was opened at Budapest on 23 November, 2001 for signatures. It was the first ever-international treaty on criminal offences committed against or with the help of computer networks such as the Internet. The Convention deals in particular with offences related to infringement of copyright, computer-related fraud, child pornography and offences connected with with network security. It also covers a series of procedural powers such as searches of and interception of material on computer networks. Its main aim is to pursue “a common criminal policy aimed at the protection of society against cybercrime, inter alia alia by adopting appropriate legislation and fostering international co-operation.” co-operation.” ii.
Extraditable Offences
Extradition procedures are designed not only to ensure that criminals are returned from one country to another but also to protect the rights of those who are accused of crimes by the requesting country. Thus, sufficient evidence has to be produced to show a prima a prima facie facie case against the accused and the rule of specialty protects the accused from being tried for any crime other than that for which he was extradited. In Daya In Daya Singh Lahoria La horia v. Union v. Union of India,
13
the Supreme Court observed that: “A fugitive 14
brought into this country under an Extradition Decree can be tried only for the offences mentioned in the Extradition decree and for no other offences and the criminal courts of India will have no jurisdiction to try such fugitive for any other offence.” o ffence.” 12 13
Gray v. American Radiator & Standard Sanitary Corp., 22 III 2d 432 (1961)
Daya Singh Lahoria v. Union v. Union of India, (2001) 4 SCC 516 14 The Extradition Act, 1962; Section 21 provides that if a person is brought into India under an extradition decree, he cannot be tried in respect of an offence, which does not form part of the decree.
8 “There is no rule of international law which imposes any duty on a State to surrender a fugitive in the absence of extradition treaty. The law of extradition, therefore, is a dual law. It is ostensibly a municipal law; yet it is a part of international law also, inasmuch as it governs the relations between two sovereign States over the question of whether or not a given person should be handed over by one sovereign State to another sovereign State. This question is decided by national courts but on the basis of international commitments as well as the rules of international law relating to the subject.”
15
Despite the treaty, a State may refuse extradition. In Hans Muller of Nuremberg v. 16
Superintendent Presidency Jail, Cal ., ., the Court held that even if there is a requisition and a good cause for extradition, the government is not bound to accede to the request, because Section 3 (1) of the Indian Extradition Act, 1903 (based on Fugitive Offenders Act, 1881 of the British Parliament) gives the government discretionary powers. Extradition is usually granted for an extraditable offence regardless of where the act or acts constituting the offence were committed. The extraditable offences are: Murder or other willful crime against a Head of State or Head of Government or a member of their family, aircraft hijacking offences, aviation sabotage, crimes against internationally protected persons including diplomats, hostage taking, offences related to illegal drugs, or any other offences for which both contracting states have the obligation to extradite the person pursuant to a multilateral international agreement. 17
In R In R v. Governor v. Governor of Braxton Prison and another, ex parte Levin, a Russian hacker has hacked in the US territory using a Russian computer but because as his activities constituted various crimes under British law and the conduct had effect within the American territory. He was arrested in England and extradited to the US. It is possible that a criminal commits offences under other legislation whe re jurisdiction is not statutorily defined. There the court takes a flexible approach suitable for the fact situation in 18
the case. In R v. v. Governor of Pentonville, ex parte Osman, Osman, the court held that while it is possible to hold that the act of appropriation might have occurred in more than one jurisdiction
15
Ibid. Hans Muller of Nuremberg v. Superintendent v. Superintendent Presidency Jail, Cal ., Cal ., AIR 1955 SC 367 17 R v. Governor v. Governor of Braxton Prison and another, ex parte Levin , [1996] 3 WLR 657 18 R v. Governor v. Governor of Pentonville, ex parte Osman, Osman , (1989) 3 All ER 701 16
9 (that is perilously close to accepting that a crime might occur in more than one place) the jurisdiction was conferred to the jurisdiction with with most significant link. In the modern world, extradition works on a host of bilateral and multilateral treaties on extradition. Extradition is a procedure that may be appropriate for any crime (generally serious crimes), the treaties generally limit the number of extradition crimes. It is perhaps not fair to say that always formal extradition is required, for example, between England and Ireland a wanted person may be arrested in one state sent to another on the basis of a warrant and backed in the extraditing state.
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iii. Cybercrimes – Cybercrimes – Are Are they Extraditable Offences?
The Convention on Cybercrime has made cybercrimes extraditable offences. The offence is extraditable if punishable under the laws in both contracting parties by imprisonments for more 20
than one year or by a more severe penalty. The aforesaid provision applies to extradition 21
between parties for the criminal offences established in accordance with other provisions of this Convention, provided that they are punishable under the laws of both parties concerned by deprivation of liberty for a maximum period of at least one year, or by a more severe penalty. 6. PERSONAL JURISDICTION IN CYBERSPACE
Introduction
E-commerce is 24/7 commerce. It is an online activity involving exchange of goods and services for a consideration (money). Such activity may lead to disputes, which could be: (a) municipal (domestic) or (b) international. The question is how to resolve these disputes keeping in view the complexity of online activity. From the point of identifying the jurisdiction, it is important to know the nature of the 32
dispute and for that purpose the following questions are necessary : I. What has happened? ii. Where did it happen? And iii. Why did it happen?
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Backing of Warrants Act, 1965 in UK; Extradition Act, 1965 in Ireland The Convention on Cyber crime; Article 24 21 Ibid ; Article 2-11 20
10 The answers would provide not only the necessary information related to the business model of the website but also the extent of commercial interaction between the service provider (website owner) and the user. The traditional principles of domestic and international jurisdiction that have been developed and adopted over a period of time are now being extended to cyberspace to formulate a new idiom of cyber jurisdiction. This adoption would maintain continuity of established law and practice even in the realm of online activities.
1.
U.S. Approach to Personal Jurisdiction
It is important to understand the traditional principles of jurisdiction, like personal jurisdiction, local state‟s long-arm long-arm statute and the due process clause of the US Constitution to know how these principles have been used by various courts to resolve e-commerce related disputes. Computer crimes because of their transitional nature involve certain difficult jurisdictional questions. Suppose a hacker operating from a computer in country A, enters a database in country B, and after routing the information through several countries causes a consequence in C. here at least three jurisdictions are involved and who shall try him? The dilemma was described very appropriately by La Forest, J., in Libman v. v. The Queen, Queen,
22
in
following words: “one is to assume that the jurisdiction lies in the country where the crime is planned or initiated. Other possibilities include the impact of the offence is felt, where it is initiated, where it is completed or again where the gravamen or the essential element of the offence took place. It is also possible to maintain that any country where any substantial or any part of the chain of events constituting an offence takes place may take jurisdiction.
I. Personal Jurisdiction a.
Meaning of Personal Jurisdiction
Personal Jurisdiction is the competence of a court to determine a case against a particular category of persons (natural as well as juridical). It requires a determination of whether or not the person is subject to the court in which the case is filed.
22
Libman v. The v. The Queen, (1985) Queen, (1985) 21 CCC 3d 206
11 Personal jurisdiction jurisdiction looks into an issue from the point of „physical presence‟, whether the person was a resident or a non-resident. If he is a resident, then there is no doubt about his being subject to municipal municip al (domestic) laws. The problem arises, if he is a nonresident, what laws would be applicable – applicable – municipal municipal laws of the state where he is residing or municipal laws of the state whose laws he has transgressed?
Types of Personal Jurisdiction
It may be further classified into following 2 types:
General Jurisdiction
The “general” jurisdiction subjects a person to the power of the applicable court with respect to any cause of action that might be brought. It has historically relied on very close contacts of the person with the state, such as residency or domicile within the state, physical presence in the state at the time of service of process, or some other substantial “continuous and systematic” contact with the forum state.
Specific Jurisdiction
The “specific” jurisdiction, refers to the power power of the applicable court with respect to a particular cause of action based upon up on some set of “minimum contacts” with the forum state that relate to that cause of action.
ii.
Enactments of long-arm Statute
The principle „long„long-arm statute‟ authorizes the courts to claim personal jurisdiction over a non-resident defendant whose principal business is outside the state on the ground that their action (tortuous or any other) other) falls within
the nature of activity required to qualify qualify for
jurisdiction. iii. Due Process of Law 23
The „due process of law‟ as given in the US Constitution limits the powers of the courts to exercise traditional notions of fair play and substantial justice. The US Constitution provides
23
th
The US Constitution; 5 Amendment
12 that “……no state shall…..deprive any person of life, liberty libe rty or property without due process of 24
law.”
iv.
Establishing Personal Jurisdiction
The credit to establish ground rules for establishing personal jurisdiction for the nonresident lies with the US Supreme Court judgment in International Shoe Co. v. v. State of 25
Washington, Office of unemployment Compensation and Placement et al. It held that a court‟s exercise of personal jurisdiction over a non-resident defendant is proper if that defendant has had certain „minimum contacts‟ with the forum state such that th at the maintenance of the suit does not offend „traditional notions of fair play and substantial justice.‟ It established the following 3 criteria for establishing “minimum contacts”: (I). (I).
the defendant must “purposeful avail” himself of the privilege of doing business with the forum state,
(ii).
the cause of action arises from defendant‟s activities in the forum state, and
(iii).
the exercise of jurisdiction would be fair and reasonable.
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The „minimum contact‟ principle laid the foundation of state‟s jurisdiction over other state‟s subject. It advocated establishment of „minimum contacts‟ to give rise to obligations between the defendant and a nd the forum state. Primarily, it d oes not look into the issue whether the contacts were sufficient or insufficient to establish “purposeful availment”. The International Shoe Company’s Case Case was decided in the year 1945 and at that time there were no state long-term statutes. Long-arm statute statute went a step ahead of „minimum contacts‟ to look into whether the contacts were sufficient to establish “purposeful availment”, like: i.
Purposefully and successfully solicitation of business from forum state resident‟s
ii.
Establishment of contract with the forum state resident‟s
iii.
Associated with other forum state related activity
iv.
Substantial enough connection with the forum state
24
th
Ibid ; 14 Amendment International Shoe Co. v. State v. State of Washington, Washington, Office of unemployment Compensation Compensation and Placement et al , 326 U.S. 310, 316 (1945); See also Hess also Hess v. v. Pawloski, Pawloski, 274 274 US 352 (1927) 26 Ibid. 25
13 Once the court determined that sufficient „minimum contacts‟ existed to exercise specific jurisdiction over the defendant, the court then would have to consider whether it was reasonable to subject the non-resident defendant to the personal jurisdiction of the forum to the extent that federal constitutional requirements of due process will allow. States as an established law in identifying identifying “minimum contacts” to claim personal jurisdiction over a non-resident. Forum State Targeting
Another trend that has been emerging is that the courts now increasingly taking cognizance of the commercial involvement of the residents of the forum state. The earlier concept of „general interaction‟ has given way to „specific interaction‟ for the purpose of invoking „specific personal 27
jurisdiction‟. For example, in Millennium Enterprises Inc. v. v. Millennium Music, LP, the plaintiff, which operated music stores in Oregon under the name “Music Millennium” claimed that defendant violated its trademark in that name by operating in South Carolina under the name “Millennium Music.” Defendant‟s website allowed visits to purchase purchase compact disks, join a discount club, and request franchising information, but no residents of Oregon had made any purchases via the website or engaged eng aged in any online communication with the defendant. The Th e court rejected the view that potential interactivity is sufficient to satisfy due process. It held that there must be an addition to some “deliberate action” within the forum state, consisting of either transaction with residents of the forum state or other conduct purposefully directed at them. The cour t opined, “Until transactions with Oregon residents are consummated through defendant‟s website, defendants cannot reasonably anticipate that they will be brought before this court”.
27
Millennium Enterprises Inc. v. Millennium v. Millennium Music, LP, 33 F. Supp. 2d 907 (D.Or.1999)
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7. Indian Approach to Personal Jurisdiction 28
It is within the power of the Indian courts to grant injunction or anti-suit injunction to a party over whom it has personal jurisdiction, in an appropriate case. This is because courts of equity exercise jurisdiction in personam. personam. This power is to be used sparingly as though it is directed against a person, but may cause interference in the exercise of jurisdiction by another court. 101
More so, as the courts have to observe the rule of comity
which states that “the recognition
which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its law.” Keeping in view the nature of the online commerce involving business-to-business (B2B) or business-to-consumer (B2C) contracts, it is important that the issue of personal jurisdiction should be looked into from all possible sources: (a) forum of choice, (b) Civil Procedure Code, 1908, (c) choice of law, and (d) Criminal Procedure Code. These sources do not constitute mutually exclusive categories. In fact they are dependent upon each other.
I.
Jurisdiction Based on Forum of Choice
In fact, the parties may themselves agree beforehand that for resolution of their disputes, they would either approach any of the available courts of natural jurisdiction or to have the disputes resolved by a foreign court of their choice as a neutral forum according to the law applicable to that court. Thus, it is open for a party for his convenience to fix the jurisdiction of any competent court to have their their dispute adjudicated by that court alone. In other words, if one or more courts have the jurisdiction to try any suit, it is open for the parties to choose any one of the two competent courts to decide their disputes. In case parties under their own agreement expressly agree that their dispute shall be tried by only one of them then the parties can only file 29
the suit in that court alone to which they have so agreed. 30
In Hakam In Hakam Singh v. Gammon v. Gammon (India) Ltd ., .,
the Supreme Court held that: “where two courts or
more have, under the Code of Civil Procedure, jurisdiction to try a suit or proceeding, an agreement between the parties that the dispute between them shall be tried in one of such courts 28
When a court restrains a party to a suit/proceeding before it from instituting or prosecuting a case in another court 101 including a foreign court, it is called anti-suit injunction. Hilton v. Guyot v. Guyot 115 115 US 113,163-164 (1995) 29 Shriram City Union Finance Corporation Ltd. v. Rama v. Rama Mishra, Mishra, (2002) 9 SCC 613 30 Hakam Singh v. Gammon v. Gammon (India) Ltd ., ., (1971) 1 SCC 286
15 is not contrary to public policy. Such an agreement does not contravene Section 28 of the Indian Contract Act, 1872.” ii.
Jurisdiction Based on Code of Civil Procedure, 1908
In all civil matters, the Code of Civil Procedure (CPC), 1908, basically formulates the Indian approach to jurisdiction. Under CPC, one or more courts may have jurisdiction to deal with a subject matter having regard to the location of immovable property, place of residence or work of a defendant or place where cause of action has arisen. Where only one court has a jurisdiction, it is said to have exclusive jurisdiction; where more courts than one have jurisdiction over a subject matter, they are called courts of available or natural jurisdiction. The jurisdiction of the courts to try all suits of civil nature is very expansive as is evident from the provisions of 31
CPC.
a. Basis of Jurisdiction
To formulate whether the jurisdiction of the courts is exclusive or non-exclusive, in the Internet setting, one must involve the following jurisdictional principles as highlighted in the CPC: i.
Pecuniary
ii.
Subject-matter
iii.
Territory and
iv.
Cause of action
Pecuniary jurisdiction limits the power of the court to hear cases up to a pecuniary limit only. “Nothing shall operate to give any an y Court jurisdiction over suits the amount or value of th e subject 32 matter of which exceeds the pecuniary pecuniar y limits of its ordinary jurisdiction.” jurisdiction.” 33
Jurisdiction also depends on where the subject-matter of the suit is situated, where a suit 34
is for compensation for wrong done to the person or to movable property, or where defendants reside or cause of action arise.
35
Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant
31
The Code of Civil Procedure, 1908; Section 9 Ibid ; Section 6 33 Ibid ; Section 16 34 Ibid ; Section 19 35 Ibid ; Section 20 32
16 resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the said Courts.
36
Further CPC provides that every suit shall be instituted in a Court within the local limits of whose jurisdiction – jurisdiction – (a)
the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b)
any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personality works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; or
(c)
37
The cause of action, wholly or in part arises.
A corporation shall be deemed to carry on business at its sole or principal office in India 38
or, in respect of any cause arising at any place where it has h as subordinate office, at such place. 39
In Gupta Sanitary Stores v. Union v. Union of India,
while interpreting the expression „carries on
business‟ the court summed up the legal position in the following terms: “I take the test to be this: What is the nature and purpose of the activity in question? If it is commercial in character, the suit can be filed at the principal place of business or principal office, and also at the place 40
where the cause of action arises wholly or in part. In most cases where the business is not of a commercial nature, the suit must be filed against the government at the place where the cause of action arises wholly or in part. For example, if the contract is entered into at Calcutta, the Courts 41
at Calcutta will have the jurisdiction.” jurisdiction.”
36
Supra note 107 note 107 Supra note 108 note 108 38 Ibid ; Explanation 39 Gupta Sanitary Stores v. Union v. Union of India, AIR India, AIR 1985 Del.122 (FB) 40 Ibid ; see also Shri Ram Rattan Bhartia v. Food v. Food Corporation of India, India , AIR 1978 Delhi 183 (FB) 41 Nalanda Ceramic v. N.S. v. N.S. Chaudhary & Co., Co., AIR 1977 SC 2142 37
17
b.
Cause of Action and Contractual Obligations
The expression „cause of action‟ signifies that bundle of facts, which the petitioner must prove, if traversed, to entitle it to a judgment in its favour by the court. In Oil & Natural Gas 42
Commission v. Utpal v. Utpal Kumar Basu & Others, the petitioner learnt about tenders being invited for a particular project at Hazira in Gujarat from advertisements appearing in the Times of India in circulation in West Bengal by reading it at Calcutta, submitted its offer from Calcutta, made representations and also sent fax messages from Calcutta and received reply thereto at Calcutta. A writ petition was filed before the Calcutta High Court on the plea of part of cause of action having arisen at Calcutta. In view of the aforesaid facts, holding lack of jurisdiction on the part of Calcutta High Court, which it had assumed by passing impugned order, while allowing the appeal, the Supreme Court laid down in the following terms: “merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not in our opinion, constitute facts forming an integral part of the cause of action. So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta, would not constitute an integral part of the cause of action.” Where the cause of action arises from contract, and the parties have not effectively selected the governing substantive law, the relevant criteria in a choice-of-law analysis are: (a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the location of the parties. iii.
Choice of Law
Because on its own assessment of the contractual obligations involved, a Court will apply the choice of law rules to determine “what law should be applied?” The two choices are: (a) either to apply the law of the forum (lex (lex fori), fori), or (b) to apply the law of the site of the transaction, or occurrence that gave rise to the litigation in the first place (lex (lex loci). loci). The modern theory of Conflict of Law recognizes and, in any event, prefers the jurisdiction of the state, which has the most intimate contact with the issues arising in the case. Ordinarily jurisdiction must follow upon 43
functional lines.
42 43
Oil & Natural Gas Commission v. Utpal v. Utpal Kumar Basu & Others, (1994) Others, (1994) 4 SCC 711 Surinder Kaur v. Harbax v. Harbax Singh, Singh , AIR 1984 SC 1224-1226
18 44
In National Thermal Power Corporation v. v. The Singer Company, the Supreme Court held that: “The expression „proper law of a contract‟ refers to the legal system by by which the parties to the contract intended their contract to be governed. If their intention is expressly stated or if can be clearly inferred from the contract itself or its surrounding circumstances, such intention determines the proper law of the contract. Where, however, the intention of the parties is not expressly stated and no inference about it can be drawn, their intention as such has no relevance. In that event, the courts endeavor to impute an intention by identifying the legal system with which the transaction has its closest and most real connection. The expressed intention of the parties is generally decisive in determining the proper law of the contract. The only limitation on this rule is that the intention of the parties must be expressed bona fide and fide and it should not be opposed to public policy.” In the absence of an express statement about the governing law relating to commercial contract between the parties belonging to different countries, the inferred intention of the parties determines that law. The true intention of the parties, in the absence of an express selection, has to be discovered by applying “sound ideas of business, convenience and sense to the language of the contract itself”. In such a case, selection of courts of a particular particular country as having jurisdiction in matters arising under the contract is usually an indication of the intention of the parties that the system of law followed by those courts is the proper law by which they intend their contract to be iv.
Jurisdiction based on the Criminal Procedure Code, 1973
The Cr.P.C. lays down that the ordinary place of trial and inquiry is the court in whose 45
jurisdiction the crime has been committed. However, the subsequent provisions of the Cr.P.C. dilute the strict necessity of territorial jurisdiction. The place of commission of an offence is uncertain, the offence is continuing or it has been committed partly in one and an d partly in another anothe r or it is several acts in several places, a court 46
having jurisdiction in any place may try the case.
47
An offence can be tried where the consequence ensues. These provisions are very relevant with regard to computer offences, in which the place of commission is very difficult to locate. 44
National Thermal Power Corporation v. The v. The Singer Company , Company , AIR 1993 SC 998 The Criminal Procedure Code, 1973; Section 177 46 Ibid., Section Ibid., Section 178 45
19 In case of offence by letters or telecom messages, ju risdiction lay with the court where the 48
message was sent or received. Thus, this provision shall be resorted to in case of offences involving an e-mail. Further the Cr.P, C. provides that no sentence or order of a criminal court can be set aside for wrong jurisdiction. v.
49
Criteria of Accepting Foreign Judgment
A foreign judgment is not conclusive in certain circumstances in India. In this context, the 50
Code of Civil Procedure, 1908 provides that: “A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title exceptWhere it has not been pronounced by a court of competent co mpetent jurisdiction; (a)
Where it has not been given on the merits of the case;
(b)
Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;
(c)
Where the proceedings in which the judgment was obtained are opposed to natural justice;
(d)
Where it has been obtained by b y fraud;
(e)
Where it sustains a claim founded on a breach brea ch of any law in force in India.” 51
In Smita Conductors Ltd. v. v. Euro Alloys Ltd ., ., the Supreme Court observed that, a foreign award cannot be recognized or enforced if it is contrary to (a) fundamental policy of Indian law; or (b) the interests of India; or (c) justice or morality. 52
Once it is held that an award is a foreign award, the provisions of Foreign Awards (Recognition and Enforcement) Act, 1961 would apply and where the conditions for enforcement of such an
47
Ibid., Section Ibid., Section 179 Ibid., Section Ibid., Section 182 49 Ibid., Section Ibid., Section 462 50 The Civil Procedure Code, 1908; Section 13 51 Smita Conductors Ltd. v. Euro v. Euro Alloys Ltd., (2001) Ltd., (2001) 7 SCC 728 52 The Foreign Awards Act, 1961 defines „foreign award‟ as an award made on or after 11-10-1960 11 -10-1960 on differences arising between people out of legal relationships, whether contractual or not, which are considered to be commercial under the law in force in India. 48
20 award exit, the court shall order the award to be filed and shall proceed to pronounce judgment granting award and upon the judgment so pronounced, decree shall follow.
Conclusion..
Jurisdiction is an aspect of state sovereignty and it refers to judicial, legislative and administrative competence. Although jurisdiction is an aspect of sovereignty, it is not coextensive with it. International law circumscribes a state‟s right to exercise jurisdiction. The very basis of any justice delivery system, the jurisdiction, which gives powers to a particular court to accommodate a particular case, is itself being threatened over the internet. In this chapter, three legal systems – American, European and Indian, which have been examined, provide a maze of legal principles to understand the dynamics behind personal jurisdiction in their respective jurisdiction.
21
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