In conflict of laws jurisdiction is central to contract. This jurisdiction i considered in respect of

two parallel jurisdictional frameworks i.e., Council Regulation 1215/2012 and secondly

through common law rules. Historically, the jurisdiction was subject to the Brussels

Convention. It was further replaced by the Council Regulation EC 44/2001 which is known as

Brussels Regulation. However, it was replaced by the Brussels Regulation (Recast). However,

there are certain exceptions exist where a foreign state is immune from English court’s

jurisdiction in pursuant to the State Immunity Act 1978 per section 1(1). This has also been

expressed by Lord Atkin in the Cristina [1938] AC 485. That the court would not implead a

foreign sovereign where there is a case of specific property or damage. However, this immunity

is limited in case of the ECHR as held in the case of Aladsani v UK [2001] that in respect of

immunity of sovereign Article 6(1) of ECHR would be relevant. Yet, this limitation is subject

to legitimate aim and proportionality. It is because state immunity is generally accepted per

rules of international law. This was confirmed by HOL in Jones v Minister of Interior of

Kingdom of Saudi Arabia [2007] 1 AC 270 where the British nationals alleged that they were

subject to torture and thus claimed immunity.

In respect of jurisdiction, state immunity is limited in three ways, Firstly, when a state submits

to the English court’s jurisdiction in pursuant to section 2(1) of the Act. Immunity cannot be

exercised where there is commercial transaction or state is subject to certain obligation per

section s.3(1). In cases of contract of employment immunity cannot be exercised as well per

jurisdiction in lieu of section 4(1) of the Act.

The issue of jurisdiction also comes into view where someone is present or has presence in

jurisdiction. This was expressed by court in Maharanee of Baroda v Wildenstein [1972] 2 QB

283. There is one exception to it where the defendant came in jurisdiction fraudulently.

Otherwise, the case of jurisdiction is based on presence as also confirmed in Chellaram v

Chellaram (No.2) [2002] 3 All ER 17.

Regarding company or partnership, the jurisdiction can be exercised where there is place of

business. Following section 1139(1) of the Companies Act 2006 if a company is registered in

England, it can be sent by post. if a party to contract submits to the jurisdiction, the court will

have jurisdiction to entertain the matter such as commencing action as a claimant. In case of

jurisdiction out of service the English court cannot exercise it because it is appropriate.

However, in certain cases jurisdiction can be exercised in inappropriate cases as English court

exercised jurisdiction in case of Maharanee of Baroda.

Apart from that, the issue of jurisdiction also arises where there is a case of choice of forum.

Usually, English court did not stay proceedings in case of issue of forum or jurisdiction.

However, after the case of Spilada, this conventional approach had transformed. It caused

dramatic change in respect of interpretation of foreign jurisdiction clause. However, issues

arise when there is a case of wilful exercise of discretion of parties to contract.

if there is question of preliminary jurisdiction, the rule of forum non conveniens will apply, but

it depends on the subject matter and context of the dispute. In commercial cases the general

rule is that law of country will apply as stipulated in the contract. if this is not the case and

parties are in different countries, then execution may take place in a different state, the case of

governing law will become problematic leading to dispute of parties per choice of law.

It has been argued that forum non conveniens allows a party to ask court to transfer the case to

another jurisdiction which is more conveinent. The term forum non conveniens was established

as doctrine in the 19th century and came into effect in 1960s in England. Yet, there is an

exception to it and may not apply or ask court to transfer case in convenient forum when there

is an element of injustice or doctrine seems to be abusive considering the procedure. Similarly,

in Spilada Maritime Corp v Cansulex Ltd Lord Goff said that “In cases where jurisdiction has

been founded as of right…the defendant may now apply to the court to exercise its discretion

to stay the proceedings on the ground which is usually called forum non conveniens”.

It means that parties can exercise right of forum non conveniens where it is a matter of right.

Moreover, the stay of proceedings will be granted if there is case of availability and court acting

in respect of the interest of justice. Similarly, in Abidin Daver Lord Diplock accepted the ruling

of Lord Goff which was also acquiesced by Lord Kinnear in the case of Sim v Robinow. This

liberalised view can be ordained in commercial and other cases of litigation in both UK and

USA. The main focus of the test of forum non conviens is principle of natural justice as well

as to give effect to law of country which is hosting proceedings. This can be further entailed

from El Amria and Eleftheria. Moreover, in Donohus v Armco Inc, Lord Bingham laid down

the test. The test was first established in British Aerospace v Dee Howard which was also

followed in Donohue. The test was essentially if matter was beyond foreseeability convenience,

the said was followed, which was further modified in Donohue that allowed flexible approach.

Essentially, the test is now broad one.

However, in cases where there is foreign element involved and governing law is other than

UK, the problem arises as happened in several cases. It has been argued that court would apply

controlling factors including nature of applicable law, evidence in support of it, convenience

for partes to have trial. Yet, it is up to policy justifications. Similarly, this baffled approach can

be observed in the case of Import Export v Compania Sud where the arguments favoured for

Trai in Chile, yet the UK court did not grant stay or stayed proceedings.

Court also considers factors of suitability and accessibility per forum and other practical issues

and difficulties regarding choice of forum as also confirmed and articulated by court on

Muhammad v Bank of Kuwait. In the said case the issue was of legal aid which was denied to

party in Kuwait which became a ground for the court to consider the matter and deny stay of

proceedings. Another factor is ease of trail for court to transfer proceedings. In European Asian

Bank V Punjab and Sindh Bank and Rockware glass V MacShannon, court considered the

principle of administration of justice that led the court to decide the applicable law to

proceedings. In essence, flexibility of matter is case in point. As in the referred case witnesses

were in Soctland and resided there, thus the court found the foreign court as relevant one by

considering convenience of parties to case. The said view was further practiced in the case of

Trendtex Trading V Credit Suisse, though there were two foreign jurisdictions, yet the court

viewed convenience of parties and considered English court’s jurisdiction. In essence, the

doctrine of jurisdiction is subject to rules and circumstances as there are certain matters are

considered. In fact, it is flexible area of law.