Private International Law: Jurisdiction
Jurisdiction is on of three fundamental questions of PIL; whether court competent, has power to hear, determine claim
 Jurisdiction means competence of court to hear, decide case (Collier); can be for actions in rem, actions in personam
 Jurisdiction in personam: action brought against person to compel him to do particular thing, such as payment of debt or damages
for breach of contract, or to compel him not to do something (i.e. injunction)
 Action in personam designed to settle rights of parties b/w themselves, i.e. action for damages
 Four sets of rules governing existence of in personam jurisdiction of courts:
o Brussels regime rules (Brussels Convention on Jurisdiction & Enforcement of Judgments in Civil, Commercial Matters)
o Modified rules under European legislation Civil Jurisdiction and Judgment Act 1982, amended CJJ Order 2001
o Rules under Lugano regime, derived from Lugano Convention
o Rules under traditional regime, which apply in cases not regulated by other regimes (operative in Caribbean, En)
JURISDICTION UNDER TRADITIONAL RULES
Under traditional rules three bases jurisdiction:
 Defendant is present w/in jurisdiction at time of service of claim, and has been properly served
 Defendant has submitted to court’s jurisdiction
 There has been service of process, such as writ, out of jurisdiction under Order 11 of Rules of Supreme Court
Presence: local court has jurisdiction where there has been proper service of writ or other claim form on D present w/in jurisdiction
 Exception where person lured by some trick into jurisdiction
 Court may exercise in personam jurisdiction over individual or corporation
 Individuals: court has jurisdiction where individual present w/in jurisdiction, properly served w/ writ in action in personam
o Does not matter if only on fleeting visit, or if foreign national, domiciles elsewhere; as long as present in jurisdiction
 Colt Industries Inc v Sarlie (No 1): NY company obtained judgment in NY against Frenchman; sought to
enforce in En; process served on him at London hotel where he stayed for one night; En court had jurisdiction
 Maharanee of Baroda v Wildenstein: both Ps, D lived in Paris; shared interest in fine art, racehorses; D
proprietor of art galleries in London, Paris, NY; P bought from D in Paris painting he thought was original; later
learnt it was copy; P issued writ claiming rescission of contract, repayment of price; while D was visiting Ascot
Races in En, writ was served on him; D sought unsuccessfully to set aside writ; held law permitted P to serve
writ to D even though D was only fleetingly on British soil, such service not abuse of legal process
 Note: where court retains jurisdiction b/c of presence, it continues to have jurisdiction even if person leaves
 Corporations: com incorporated in Car must have registered office in that country; documents can be served at office
o S414(a) Companies Act of Barbados: notice or document may be served on company (a) by leaving it at, sending it by
telex or by prepaid post or cable addressed to registered office of company or (b) by personally serving any director,
officer, receiver, receiver-manager, or liquidator of company
o At CL foreign companies regarded as present if they have place of business in local Car country; necessary that com
must have done business not merely w/, but in Caribbean country (must have business operating)
 Humphrey v Jolly Roger Cruises Inc: tourist to Barbados, passenger on Jolly Roger, dies following boating
accident; NY court awarded judgment for over US $1million; question arose if US court had jurisdiction to hear
matter; P argued court did have jurisdiction, as D were present in NY thru representatives, who made bookings
for cruises on behalf of Jolly Roger; all agents court do was advertise business; court held travel agents could
not make bookings w/o reference to Jolly Roger and that arrangements as alleged by P b/w travel agents and D
were too tenuous to give D presence in NY; court concluded that travel agents were not agents or
representatives of D’s business; instead travel agents carrying on their own business; accordingly Barbados
court took view that NY court did not have jurisdiction in matter
 In addition to proving D corporation doing business in local country; P must also show that agent in local
country operated from fixed place of business for definite period of time; court adopt flexible approach
 Dunlop Pneumatic Tyre Company: authorizing agent to occupy stand at motor show for nine days
sufficient to found jurisdiction
 Presence by trickery: where P tricks D into coming into jurisdiction, or D brought w/in jurisdiction after being kidnapped,
service of writ or claim form on D will be set aside
o Watkins v North American Lands etc Co: dispute arose b/w respondent, com registered in En, and appellant Mr.
Watkins, its general manager in US; appellant was US citizen; R com commenced litigation in US, but unknown to A
issued writ against him in which it claimed to recover monies had, received by him as trustee for com and retrained,
converted to his own use, inter alia; R invited A to En to discuss, possibly settle matter; when A arrived, R served writ;
A sought to set aside, arguing he was induced; court set aside writ; abuse of process to induce by fraud
General points:
 Note: rules on in personam jurisdiction purely procedural; courts not concerned w/ connections of parties to local country; mere
service of writ or claim form on D gives relevant courts power to hear, determine actions (may be foreigner only passing thru and
cause may have not factual connection to country) – but countries still have discretion whether or not to hear case; by
applying doctrine of forum non conveniens, court may refuse to hear case where trial in local court is inappropriate

Reserve true: court may have jurisdiction, but person not present in jurisdiction (can serve thru order 11 of SC Rules)
Submission: D, who otherwise not subject to jurisdiction of local court, is subject if he voluntarily submits to jurisdiction; submission
is deemed to have occurred where:
 Counterclaims: action commenced by P against D; P deemed to submit to any counterclaims instituted by D in that action
o United Bank of the Middle East v Clapham: D guarantors of loan to United Arab Emirates company of which they were
directors, shareholders; bank, registered in United Arab Emirates, issued writ against D claiming certain sum of money,
sought summary judgment in En; D argued bank had earlier taken over company’s assets wrongfully, managed business
to exclusion of com, sought to have com joined as counterclaimants against bank; held that by coming to En to sue, bank
had submitted to jurisdiction of En court; accordingly court had jurisdiction to deal w/ any counterclaim connected w/
bank’s claim
 D who acknowledges service, contests case on its merits is deemed to have submitted to jurisdiction of court
o Boyle v Sacker: P granted ex parte order to serve writ on D, Russian; substituted service was effected by serving writ on
his solicitors in London; D represented by counsel argued case on merit; held that D submitted to jurisdiction of court
since case was argued on merit
 D submits to jurisdiction of court where he instructs attorney to accept service on his behalf or where he acknowledges service but
does not apply to court to decide that it has no jurisdiction (accepting by default – places active burden on D)
 Submission to jurisdiction by agreement; if contract contains provision, which elects forum as place of litigation, D deemed to
have submitted to jurisdiction of court (British Aerospace plc v Dee Howard Co)
 Note: where D appear for sole purpose of contesting jurisdiction, he not deemed to have submitted to jurisdiction of court
o Re Dulles’ Settlement No2: proceeding commenced in En on behalf of infant against father who was resident in US;
included claim for maintenance; father, who was legally represented in court, contested jurisdiction; question arose if this
representation amounted to submission to jurisdiction; held he had not submitted; Denning LJ: not see how anyone can
fairly say man voluntarily submits to jurisdiction, when he at all times vigorously protesting that it has no jurisdiction; if
he remains silent, court assumes he rejects jurisdiction, not difference if he goes to court and protests to that effect
o Foreign and Commonwealth (Reciprocal Enforcement) Acts in Barbados: S11(2)a: “for purposes of this section court of
country of original jurisdiction shall subject to subsection 3 be deemed to have jurisdiction… (a) in case of judgment
given in action in personam (i) if judgment debtor, being D in original court submitted to jurisdiction by voluntarily
appearing in proceedings otherwise than for purpose of protecting or obtaining release of property, to contest jurisdiction
o Hunter v Crowch: D argued Florida court did not have jurisdiction since his appearance was solely of purpose of
protesting against jurisdiction of court; Adam J: regarded protest against jurisdiction as meaning D submitted to
jurisdiction (argument: if you argue in local court that they do not have jurisdiction have you not accepted jurisdiction)
 Conditional appearance: distinction b/w appearance solely to protest jurisdiction and entry of conditional appearance
o Conditional appearance: D admits court has jurisdiction under its own law and that it is w/in court’s discretion to
exercise jurisdiction; if D enter conditional appearance he agrees to submit to jurisdiction in event that court does not
exercise its discretion to refuse to exercise jurisdiction (Tigerair Inc v Sumrall)
Service out of the jurisdiction: court has jurisdiction where there has been service of process out of jurisdiction under Order 11 of
Rules of SC; such service referred to as ex juris
 Main principle of Order 11 of Rules of SC: service out of jurisdiction matter of leave determined by judicial discretion, not a right
 Order 11 r2: provides that services of notice of writ out of jurisdiction permissible w/ leave of court in certain cases; (1) where
relief sought against D domiciled, resident in forum; (2) where P seeks injunctive relief; (3) where D is a necessary, proper party
to action; (4) certain contract actions; (5) certain tort actions
Where relief sought against person domiciled or resident w/in jurisdiction
 Order 11 r(2)(1)(c): in action begun by writ relief is sought against person domiciled or ordinarily resident w/in jurisdiction
 Re Liddell’s Settlement Trusts: both husband, wife domiciled, resident in En; wife took four children to NY to reside w/ her;
husband obtained order directing wife to bring them back to En; process served upon her in NY; she failed to obey order,
subsequently, writ issued sequestrating her property in En; wife appealed; appeal dismissed; held: although wife not in En, court
had full jurisdiction to make order as relief had been sought against person domiciled, ordinarily resident w/ jurisdiction
Where plaintiff seeks injunctive relief
 Order 11 r2(1)(i): provides that service of notice of writ out of jurisdiction permissible when in action begun by writ injunction
sought ordering D to do, refrain from doing anything w/in jurisdiction, whether or not damages also claimed in respect of failure
to do or doing that thing
 To fall w/in rule, injunction must be sought bona fide in genuine dispute concerning whether some action by D in local
jurisdiction in question should be mandated or prohibited Watson and Sons v Daily Record (Glasgow Ltd)
Necessary or proper party
 Leave also granted “if action begun by writ being properly brought against person duly served w/in jurisdiction, person out of
jurisdiction is necessary or proper party thereto” Order 11 r2(1)(j)
Certain contract actions
 Leaver permissible where action begun by writ bought against D not domiciled, ordinarily resident w/in jurisdiction, to enforce,
rescind, dissolve, annul or otherwise affect contract or to recover damages or obtain other relief in respect of breach of contract,
being in either case, a contract that: (1) was made w/in jurisdiction, (2) was made by or thru agent trading, residing w/in
jurisdiction on behalf of principal trading, residing out of jurisdiction, or (2) is by its terms, implications governed by laws of
Barbados (Ord 11 r2(1)(f)
o Leave granted where contract substantially made w/in jurisdiction; place of con formation determined by local law
o Where parties present, contract made where parties signed relevant document or indicated consent; matter not if one,
both foreigners (Henry v Geopresco International Ltd)
o Where contract made by post, contract made where letter of acceptance posted (Adams v Lindsell)
o Instantaneous communication, telex, contract made where acceptance of offer received (Entores v Miles Far East Corp)
o Note: if contract made in country of local court, but contains foreign jurisdiction clause, normally leave not granted
o Leave granted where contract made thru agent trading, residing w/in jurisdiction on behalf of principal
o Sufficient that agent was means of communication to his principal abroad; matter not that agent did not have authority to
conclude contract
 National Mortgage and Agency Co of New Zealand Ltd v Gosselin: London agent of D Belgian firm, employed
for purpose of obtaining orders, sent D’s price list to P; P in turn sent order by agent, accepted thru post by D’s
firm; held that service properly allowed out of jurisdiction on D’s firm as contract made thru agent in En for he
negotiated its terms; irrelevant that agent not actually made contract
o Leave granted where contract wherever made has local law as applicable law; law that governs con termed proper
law of con; court generally regard law chosen by parties as governing law
o Vita Foods Product Inc v Unus Shipping Co Ltd: Lord Wright: proper law is law which parties intended to apply
o National Chemsearch Corps v Davidson: law of this country committed to principle of unfettered freedom of con; where
parties express intention that particular legal system shall govern rights, obligations that intention must prevail
o Contract w/ jurisdiction clause: where contract contains clause to effect that HC shall have jurisdiction
o Unterweser Reederei GmbH v Zapata Off-Shore Co: P, German com, agree to tow D’s oil rig from Louisiana to Italy;
agreement referred all disputes to London Court of Justice; tug forced to take refuge in Florida; each party alleged other
in breach of agreement; P sued D for damages in En contending oilrig being towed was not of seaworthy condition,
asking for leave to serve D in US; court granted permission saying it was policy to hold parties to their agreement
Certain actions in tort: may grant leave to serve writ out of jurisdiction for tort committed w/in jurisdiction Ord11r2(1)(h)
Obstacle of discretion: not only must P show case falls w/in Order 11, must also show case fit, proper for courts to allow service out
 Court has discretion; P must demonstrate to court’s satisfaction that case appropriate for leave to serve process out of jurisdiction
 Bias against granting permission to serve out of process
o Bahamas International Trust Company Ltd v Lisk Wyckhoff: court should be careful before writ to be served out of
jurisdiction… put foreigner, who owes not allegiance, thru inconvenience, annoyance; court ought to be exceedingly
careful before it allows writ to be served out of jurisdiction
Good faith: for court to grant leave under Ord 11, P must act in good faith; must be full, frank disclosure of relevant facts, particulars
in cases where application is made ex parte
Forum conveniens: before court grants leave under Order 11, P must prove court is appropriate forum for hearing matter
 Court takes account of: (1) whether lex fori or foreign law is governing law; (2) whether foreign court also has jurisdiction; (3)
whether proceedings pending in foreign court; (4) location of evidence, witnesses; (5) whether real purpose of proceedings is to
vindicate P’s legal rights, responsibilities or merely to humiliate D
Subject matter jurisdiction
Three types of cases where competence of Caribbean court to hear, determine matter limited by subject matter of dispute
 Actions based on public law: where public law of foreign country assert sovereignty of foreign power, court will not be
competent to adjudicate relevant claim; local courts do not enforce such laws, parties cannot acquire rights under them
o Sancris v Bowen: D submitted to jurisdiction of Grenada HC; court held that it had no competence over subject matter
b/c nature of action for recovery of penalty or tax for protection of foreign revenue
 Mocambique rule: forum has no jurisdiction in actions directly involving determination of title to, right to possess immovable
property in foreign country, nor would it assume jurisdiction in actions for damages for trespass to such property
o British South Africa Co v Companhia de Mocambique: P, Portuguese com, sued D, En com for damages in trespass to its
land in South Africa; D disputed P’s right to possession of land; HOL held that it had no jurisdiction to hear action
o Exception: where dispute outside rule’s scope, case will not raise question of subject matter jurisdiction; court will hear
matter on personal jurisdiction
 Where title to foreign land merely incidental to main dispute Re Ross concerned, in part, immovable property in
Italy; court exercised jurisdiction b/c main issue was, validity of will
 Where personal obligation exists b/w parties, court of equity will exercise jurisdiction; Razelos v Razelos
husband fraudulently bought land in Greece w/ w’s money; En court ordered husband to convey property to w
 Local actions: in local action, foreign courts have no jurisdiction to determine if rights given under local laws have been
infringed; forum has no competence over cause of action based on foreign law giving purely local rights
Tyburn Productions Ltd v Conan Doyle: concerned w/ existence, validity of copyright law; held that disputes arising under foreign
copyright law fell exclusively w/in jurisdiction of courts of country that created rights under CR laws