Presence Rule – Civil Jurisdiction

It is to be noted that when we are concerned with “conflict cases”, there exists some highly crucial matters regarding the fact that if state possesses jurisdiction over the defendant in accordance with the “due process of law”, or if the court holds jurisdiction upon “the subject matter”, and if the requirements needed for the due process concerning the service and notice have finally met. It is worth mentioning that not all the issues are sorted by the connection of “jurisdiction and due process”. Yet it has to be noted that the requisites for “due process” influences the entire jurisdiction principles. In this regard there exists two pivotal issues such as the establishment of “reasonable grounds” and rules that are to be employed while establishing “reasonable levels for due process” while trying to formulate service and providing notice. It isn’t possible to discuss one and not the other because of the fact there remains a highly close link between these two and it can’t be overlooked. That is why when we are concerned with cases involving conflict, there remains a continuous series of cause and effect among the above mentioned two ideologies. We shall now try to highlight the laws which are concerned with the “court's jurisdiction”.

Moreover, it is noteworthy that the case of “Buchanan” didn’t succeed because of the fact that there had been insufficient “jurisdiction and due process”. Furthermore, there existed no intention of the court to grant notice towards the “overseas defendant”. Furthermore, the verdict given by the during the case “Maharanee of Baroda v Wildenstein” was aimed at the jurisdiction of the courts in the United Kingdom when they have to deal with the cases where there exists no important links with the UK. The courts get the physical authority when the defendants are physically present. Furthermore, a sophisticated notion distinct from only physical existence, necessitates an increased complexity and usually requires the defendant's established residence, unless such residence is transitory or impractical. However, the presence is not enough to establish jurisdiction; however, justifying the requirement of a temporary presence as a necessary condition presents difficulties.

This is one of the established rules that any person who is living in a country, whether only for a short or a longer period of time, shall be subject to the country’s jurisdiction, as it has been stated in the principle of “Transient Presence”. It should be mentioned here that during the case “Peabody v. Hamilton”, the court affirmed its jurisdiction regardless of the fact that the defendant being “transient” traveling from “Nova Scotia to New York”. Moreover, the laws permitting the methods of service rather than personalized delivery on the people who are living only for a short period of time in the country has been deemed adequate to establish the court's jurisdiction over the defendant. It has to be mentioned here that during “Durfee v Durfee”, the D was living in “Rhode Island” when he was given a legal notice via an established mail while conducting he was doing business in “Massachusetts”, and afterwards the defendant was consequently considered to have been properly summoned before the court. Now, if we consider that the short term residence or presence can be recognized as the grounds for "Jurisdiction", then this requirement is satisfied by the above mentioned situation. But still it has been questioned various times that whether or not the service that has been computed reasonably to be sent to the defendant but because of some issues it doesn’t reach him shall be

considered enough when dealing with situations of this nature. In this regard, it is worth mentioning that when we concerned with situations where the main objective of the claimant for suing the D is to get into a position where he/she shall have benefit over him/her by making sure that he is not able to defend himself properly unless he has decided to extend his residence for an indefinite period of time, the courts have given the permission to use “transient presence rule” as the grounds for JR. In most of the cases, it is treated as a matter of “technicality” instead of “justice”. Furthermore, during the case “Nebraska”, a perspective resembling the above mentioned one was used by “Justice Holmes”. In this case, it was established that the intentions of the claimant didn’t matter until he had committed something illegal. Moreover, during the case “Kentucky” a much more appropriate perspective was adopted by the court. The court during this case was of the view that “it isn’t always the truth or falsity of the representation that leads to the fraud, but the undisclosed intentions lying in the appellant's mind which prompted him to make the representation”.

During civil litigation, the jurisdictional constraints might rise when we are concerned with cases involving fraud or coercion. While a court might posses jurisdiction when they are dealing with matters of such nature, it may opt not to exercise it as a matter of policy. Now, if a decision has been given by the court while relying upon “jurisdiction” all other nations have to support the concerned decision. As per the “Restatement of Conflicts”, it has been stated that fraud has a negative impact upon jurisdiction due to the fact that it results in the prevention of a claimant from the benefits that he/she might have because of his behaviour. It is to be noted that when the D has been taken into a nation by reliance upon force, the courts are not able to use “jurisdiction”. However, laws regarding such cases remain uncertain. Furthermore, in cases where the defendant was brought into the country by fraudulent means and is also culpable of negligence or other legal transgressions, the “Restatement” doesn’t explicitly deal with the jurisdictional question pertaining to the cases dealing with fraud.

Furthermore, the case of “The Maharanee of Baroda v Wildenstein” is mainly concerned with the ruling given by the “English Court of Appeal” regarding the jurisdiction of the “English” courts in matters lacking significant ties to England. It is worth mentioning that this judgment took place earlier than the time when the ideology of “Forum Non Conveniens” was updated and even before the ruling by the HL in the case “Spiliada Maritime Corp v Cansulex Ltd”. However, the legal ideology asserting that the presence within a jurisdiction assures validity irrespective of its brevity or transience remains firmly established. However, the patients residing within a country who are either “parties or witnesses” in a lawsuit are exempted from being served with legal documents during the course of proceedings and for a reasonable period of time thereafter, allowing them sufficient time to depart from the respective country. Moreover, this policy has been widely explained and expansion has been made in it to ensure that it encompasses people participating in “depositions” and other legal proceedings. Furthermore, it can’t be denied that the concept of “inconvenient forum” has presented a number of restrictions while establishing “presence” as the ground for Jurisdiction when concerned with the “non-residents”. Even though

where we are concerned with presence, especially when the defendant is “transient”, in practice, it has proven ineffective.

Moreover, the unrestricted implementation of the “transient jurisdiction rule” is currently considered invalid. However, the criticism that this rule faced from Ehrenzweig has resulted in sparking a roundtable debate upon the topic of jurisdiction over non-residents who are living for a shorter period of time in the respective country, under the subject of "Transient jurisdiction". It is worth noting that the Ehrenzweig's argument has supported by nearly all the panel members, yet they ultimately acknowledge that despite its limitations, the rule is deeply entrenched and unlikely to be overturned in the foreseeable future, if ever. A prominent member of the panel “Schlesinger” has shared his view as per which there has been a single attorney who has been willing to take the financial risk of mounting a direct challenge against the principle while representing their client. Over the course of time, this rule has been a victim of questions upon its validity but these days we have seen a number of prominent legal scholars challenging its validity. The extraordinary capacity for the development and adaptation has been illustrated across several domains over the past 35 years. It is to be noted that when prominent legal scholars in the academic journals and professional publications mount a concerted critique against an outdated doctrine, it often results in a subsequent alteration or adjustment to the rule. But still the criticism made by “Ehrenzweig" remains most prominent so far. But there exists one challenge which appears when we are trying to determine how to circumscribe the principle that presence can establish jurisdiction, thereby protecting the jurisdictional rights of both “plaintiffs and defendants” to the extent feasible under objective criteria. However, the provision that have been proposed stipulates that merely the presence of a defendant in a country, without additional links, would no longer automatically result in jurisdiction upon its courts. Rather, the jurisdiction would be entirely dependent upon the defendant's elusiveness, such that locating them in a state with a more appropriate basis of jurisdiction would be challenging.

As a result, it is stated that we might need to do a reevaluation of the fact that whether the time to terminate the “transient presence rule” entirely and take away its privilege of being the base for “Jurisdiction”. Furthermore, the notion of "doing of an act," has been formed approximately 35 years earlier during “Hess v. Pawlosky”, would effectively deal with numerous cases that are concerned with “transient presence”. As for now, “domicile” continue to serve as a logical grounds for the “jurisdiction” when we are dealing with cases involving “non-residents”.

Furthermore, the verdict given by the during the case “Maharanee of Baroda v Wildenstein” was aimed at the jurisdiction of the courts in the United Kingdom when they have to deal with the cases where there exists no important links with the UK. It is worth mentioning that this judgment took place earlier than the time when the ideology of “Forum Non Conveniens” was updated and even before the ruling by the HL in the case “Spiliada Maritime Corp v Cansulex Ltd”. While this is no longer regarded a valid law, the rule as per which the “jurisdiction” isn’t

invalidated solely due to the fact that a short or “transient presence” within the jurisdiction stays valid.