Personal jurisdiction is a court's jurisdiction over the parties, as determined by the facts in evidence, which bind the parties to a lawsuit, as opposed to subject-matter jurisdiction, which is jurisdiction over the law involved in the suit. Without personal jurisdiction over a party, a court's rulings or decrees cannot be enforced upon that party, except by comity; i.e., to the extent that the sovereign which has jurisdiction over the party allows the court to enforce them upon that party. A court that has personal jurisdiction has both the authority to rule on the law and facts of a suit and the power to enforce its decision upon a party to the suit. In some cases, territorial jurisdiction may also constrain a court's reach, such as preventing hearing of a case concerning events occurring on foreign territory between two citizens of the home jurisdiction. A similar principle is that of standing or locus standi, which is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.
International principles Since there is no world government which all countries recognize to arbitrate disputes over jurisdiction, sovereign powers can find themselves in conflict over which is the more appropriate venue to hear a case, or which country's laws should apply. These conflicts are sometimes resolved de facto by physical factors, such as which country has physical possession of a defendant or property, or sometimes by use of physical police or military force to seize people or property. A country with loose rule of law – for example an absolute monarchy with no independent judiciary – may arbitrarily choose to assert jurisdiction over a case without citing any particular justification. Such assertion can cause problems, such as encouraging other countries to take arbitrary actions over foreign citizens and property, or even provoking skirmishes or armed conflict.
In practice, many countries operate by one or another principle, either in written law or in practice, which communicate when the country will and will not assert jurisdiction: nationality principle – A country asserts jurisdiction over the conduct of its citizens, anywhere in the world. passive personality principle – A country asserts jurisdiction over acts committed against its citizens, anywhere in the world. protective principle – A country asserts jurisdiction over issues that affect its interests, such as conspiracies to overthrow its government, or resources critical to its economy (such as access to an international waterway) territorial principle – A country asserts jurisdiction over people, property, and events taking place on its own territory. treaty jurisdiction – An international treaty explicitly decides the issue. universal jurisdiction – A country asserts jurisdiction over certain acts committed by anyone, anywhere in the world. Usually reserved for exceptionally serious crimes, such as war crimes and crimes against humanity.
Different principles are applied by different countries, and different principles may be applied by the same country in different circumstances. Determination of whether or not a court has jurisdiction to hear a case is the first stage of a conflict of laws proceeding, potentially followed by choice of law to determine which jurisdiction's laws apply. Executive prosecutorial authority and foreign policy also play a role in scope and practical impact of jurisdiction choices.
Any assertion of jurisdiction based on anything other than the territorial principle is known as extraterritorial jurisdiction. Prosecution of a case against an out-of-territory defendant is known as assertion of long-arm jurisdiction.
When a person commits a crime in a foreign country against the laws of that country, usually the host country is responsible for prosecution. The Vienna Convention on Consular Relations requires that the host country notify the foreign embassy, potentially allowing the foreign country to assist in legal defense and monitor conditions of detention. (Most countries protect their citizens against foreign powers in general.)
Foreign diplomats enjoy diplomatic immunity in many countries based on the Vienna Convention on Diplomatic Relations or bilateral agreement, and foreign military personnel may be subject to the jurisdiction of their home country based on a status of forces agreement or Visiting Forces Agreement.
If a person is not physically present in the country which wishes to prosecute a case, that country may either wait until the person enters the national territory, or pursue extradition by legal or extralegal means, and with or without a general extradition treaty. Some countries (like China) prefer to prosecute their own citizens for crimes committed abroad rather than extradite them. Other countries defer to the host country.
When a crime is committed outside the territory of any country, such as in Antarctica, on watercraft in international waters, on aircraft in international airspace, and on spacecraft, jurisdiction is usually determined by the nationality of defendants or victims, or by the flag state of the vessel. This is determined by the admiralty law of the countries involved and in international agreements.
History in English and U.S. law
The concept of personal jurisdiction in English law has its origin in the idea that a monarch could not exercise power over persons or property located outside of his or her kingdom.Fundamental law in English constitutional history By John Wiedhofft Gough Pg. 52 To some degree, this was a de facto rule; the monarch's men could not arrest people or seize property outside the kingdom without risking physical conflict with the soldiers and police of other kingdoms. Slowly this principle was incorporated into written law, but problems arose in cases where property owners could not be sued because they had left the kingdom or had died and therefore were not present within the kingdom at the time they were being sued. To solve this problem, the courts created another type of jurisdiction, called quasi in rem, that is, jurisdiction over the land itself, even if the person who owned the land was not in the country. However, this jurisdiction was limited to the settlement of debts owed by the owner of the land.
In the United States, the exercise of personal jurisdiction by a court must both comply with Constitutional limitations, and be authorized by a statute. In the United Kingdom, the exercise of personal jurisdiction does not need a statutory basis, since the United Kingdom does not have a written constitution.
United States
The intersection of American federalism and the rules and theories of jurisdiction inherited from the common law of England has resulted in a highly complex body of law respecting personal jurisdiction in the United States. These rules limit both state and federal courts in their ability to hear cases.
Principles
Three fundamentals of personal jurisdiction constrain the ability of courts in the United States to bind individuals or property to its decisions: consent, power, and notice.Pennoyer v. Neff, 95 U.S. 714;
Consent The American legal system is an adversarial system. Civil actions cannot be initiated by third parties, nor by the court itself sua sponte, but must be filed by the aggrieved party who seeks redress, the plaintiff. Generally, the action is initiated in the jurisdiction where the event occurred, where the defendant can be served or where the parties have agreed to have the case located. The filing of a complaint or prayer for relief is a voluntary action by the plaintiff, and as a necessary corollary to this, the plaintiff impliedly consents to be bound by the judgment of the court.
The doctrine of consent also applies to the person against whom relief is sought, the defendant. When a defendant responds to a civil action and actively litigates its merits without raising a timely objection to personal jurisdiction, that omission is treated as the defendant's implied consent to the jurisdiction of the court.
Consent may also derive from a pre-litigation agreement by the parties, such as a forum selection clause in a contract (not to be confused with a choice of law clause). Doctrines such as claim preclusion normally prevent re-litigation of failed claims or defenses in alternative forums. Claim preclusion does not, however, prevent the refiling of a claim that was originally filed in a court that lacked personal jurisdiction over the defendant.
Power In cases where a defendant challenges personal jurisdiction, a court may still exercise personal jurisdiction if it has independent power to do so. This power is founded in the inherent nature of the State: sovereignty over secular affairs within its territory..
Notice The Fifth and Fourteenth Amendment to the United States Constitution preserve the right of the individual to due process. Due process requires that notice be given in a manner "reasonably calculated" to inform a party of the action affecting him. Originally, "Notice" (and the power of the State) was often exercised more forcefully, the defendant in a civil case sometimes being seized and brought before the court under a writ of capias ad respondendum. Notice in such a case is inferred from consent of the defendant to go with the officer. Nowadays, when exercising power over an individual without consent, notice is usually given by formal delivery of suitable papers to the defendant (service of process).
Historical background: territorial jurisdiction Originally, jurisdiction over parties in the United States was determined by strict interpretation of the geographic boundaries of each state's sovereign power. In Pennoyer v. Neff, the Supreme Court discussed that though each state ceded certain powers (e.g. foreign relations) to the Federal Government or to no entity at all (e.g. the powers that are eliminated by the protections of the bill of rights), the states retained all the other powers of sovereignty, including the exclusive power to regulate the affairs of individuals and property within its territory.Pennoyer, 95 U.S. at 722. Necessarily following from this, one state's exercise of power could not infringe upon the sovereignty of another state. Thus, Constitutional limitations applied to the validity of state court judgments.
Three types of jurisdiction developed, collectively termed territorial jurisdiction because of their reliance upon territorial control: in personam jurisdiction, in rem jurisdiction, and quasi in rem jurisdiction. Some sources refer to all three types of territorial jurisdiction as personal jurisdiction, since most actions against property (in rem jurisdiction) bear, in the end, upon the rights and obligations of persons.See e.g., Friedenthal, Kane & Miller, Civil Procedure, ¶ 3.14 at 150 (Minneapolis: West Publishing 1985) (quoting Shaffer v. Heitner, 433 U.S. 186, 207, fn. 22 (1977)). Others continue to recognize the traditional distinction between personal jurisdiction and jurisdiction over property, even after Shaffer v. Heitner (discussed below).See e.g., Blacks Law Dictionary, 6th ed., 1144 (Minneapolis: West Publishing 1990).
In personam jurisdiction referred to jurisdiction over a particular person (or entity, such as a company). In personam jurisdiction, if held by a state court, permitted that court to rule upon any case over which it otherwise held jurisdiction. Under territorial jurisdiction, pure in personam jurisdiction could only be established by serving notice upon the individual while that individual was within the territory of the state.95 U.S. at 724.