exorbitant jurisdiction

The usual jurisdiction of a court comprises the land, air, territorial waters and sea bed constituting the territory or country in which the court sits. Generally speaking, the court has jurisdiction over all those persons and property within the jurisdiction of the court. The exorbitant jurisdiction of English courts extend beyond these boundaries provided sufficient connection is made between the claimant and intended defendant and/or property which are to be made the subject matter of legal proceedings.

It is this extended reach of courts that make available the Courts of England to commence proceedings – often the commercial motivation is to sue in a jurisdiction where the defendant has assets, whether or not it is domiciled in England. In commercial disputes there is usually little preventing a defendant issuing proceedings in another jurisdiction and subsequently enforcing that judgment in England against assets located in England.

Exorbitant/Extraterritorial Jurisdiction of English Courts

In England, the disputes over which courts may exercise exorbitant jurisdiction are set out in Civil Procedure Rules, Part 6, Practice Direction 6b (CPR 6BPD). Jurisdiction of English courts is invoked by service of the claim form, particulars of claim and other specified court documents initiating the proceedings (i.e. originating process). Generally speaking, permission of the court is required to serve proceedings outside the jurisdiction if the defendant resides outside the European Union. The Civil Procedure Rules set out connecting factors to England, which brings such matters within the exorbitant jurisdiction of English Courts. They include:

1. Contracts (a) entered into within the jurisdiction by the intended defendant or its agent residing in the jurisdiction; (b) governed by English law, (c) an English jurisdiction clause, (d) where the breach has taken place in the jurisdiction.
2. Claims against persons (corporate and individuals) domiciled within England. ‘Domiciled’ in this context takes its meaning from English private international law.
3. Claims against foreign persons to refrain from committing some act within the jurisdiction.
4. Interim remedies for proceedings commenced or about to be commenced in the European Union.
5. Enforcement of a judgment or arbitral award.
6. Claims for infringement of intellectual property rights within the jurisdiction, including copyright, patent, trade mark, and design infringement.
7. Claims for declarations that no contract exists where, if the contract was found to exist, in limited circumstances.

The so-called ‘long arm jurisdiction’ of countries increases the likelihood that the court of several countries will have jurisdiction over any particular dispute, granting English and foreign companies (as claimants) a choice as to the court in which to pursue its claim – concurrent jurisdiction. As a consequence of this potential multiplicity of jurisdictions in which the dispute may be heard, the practice of forum shopping and principles of forum non conveniens has developed in the court in England to prevent disputes that have no connection to England from being heard by them.