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Edited notes
CHAPTER TWO
JUDICIAL JURISDICTION
1
 Chapter Objectives
 The meaning of adjudicatory/judicial jurisdiction

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 The possible bases of assuming judicial
jurisdiction
 Why a court’s jurisdiction is limited despite
fulfilling a legal requirement to entertain a case

Edited notes
containing a foreign element?
 The concepts of general, special and exclusive
jurisdiction
 The nature of division of federal and state
jurisdictions
 How the Federal Constitution affects interstate
judicial jurisdiction
 How choice of judicial jurisdiction rules are related
to choice of law rules
2
 The approaches used by Ethiopian courts in the
absence of jurisdiction rules
2.1. MEANING

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 What is Jurisdiction?
 Jurisdiction is the power of courts to subject

Edited notes
particular persons or things to the judicial
process and to entertain a case. It can also
defined as the powers of a court to inquire
into facts, apply the law, make decisions and
declare judgments
 3 Elements of Jurisdiction
 Judicialjurisdiction
 Material Jurisdiction
 Local Jurisdiction
3
 i. Judicial jurisdiction; refers to the power of the courts
of a particular nation or state to render a judgment
binding on an individual or his property. In this case,

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we must first ask whether Ethiopia- some court in
Ethiopia –has the power to subject a particular person
or particular property to its judicial process. The

Edited notes
question, therefore, is whether a certain case can be
adjudicated in the courts of a given state.
 ii. Material jurisdiction; refers to the power of a court

to decide on the kind of case that is before it. It

usually involves the question of which layer or type of
court has the power to dispose the case. In the
Ethiopian context, it could be a question about
deciding whether a high court or woreda/first instance
court or, a state court or a federal court should see
the matter.
4
iii. Local jurisdiction; refers to a specific area within
a state where a case has to be tried. When
various courts of the same level or type are found

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within a country or a region, as for instance the
ten Federal First Instance Courts in Addis Ababa,
which of these should have the power to

Edited notes
adjudicate a certain case is determined by rules
on local jurisdiction.

5
 WHAT IS JUDICIAL JURISDICTION?

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 It refers to the power of the court of a particular state to render
a judgment binding on individual or his property.
 Arises when the case contains a foreign Element

Edited notes
 Why should a forum worry about the involvement of foreign
element in assuming judicial jurisdiction?
 why countries regulate the issue of judicial jurisdiction through
different rules?
 1. Avoidance of Forum Shopping
 Forum selection by the plaintiff may cause forum shopping for
the most favorable forum. Avoiding forum shopping possibilities
by the plaintiff, as it harms the interest of the defendant, is the
most important consideration that is taken to come up with rules
on judicial jurisdiction.
 The question of recognition of judgment by the recognition forum;
 the fear of retaliation (i.e. citizen or domiciliary of such forum state
who live out side the forum state);
6
 and the need to promote free flow of commerce may compel a state to
consider various interests implicated in a case
 2. Avoidance of Inconvenience to the
Defendant
 litigation in distant and new place for the

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defendant brings about a number of related
problems such as:-

Edited notes
 - Litigation becomes costly which requires

defendant huge amount of money to defend the

case.
 - local biases, the particular social context,

language, culture… will inevitably affect litigation

negatively.
 - The defendant may also find the task of

collecting evidence and calling witnesses

cumbersome in a faraway place/forum.
7
 3. Avoidance of Unnecessary fight over
Jurisdiction.
 If plaintiffs were with absolute freedom to select

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the forum, (if no rules regulating the manner they
choose the forum) defendants may move to
transfer the venue or enter the motion of

Edited notes
dismissal objecting jurisdiction. Thus, the fight
over forum can be the critical dispute in the case.
This reflects a belief that “an accused is more
concerned with where he will be hanged than
whether.”

8
 4. Avoidance of the possibility of denial of
Recognition and/or enforcement out of the
rendition forum.

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 Lack of judicial jurisdiction over a case results at

least in a denial of recognition and enforcement

(loss of practical value) of the judgment in

Edited notes
another forum, and even if a court of one state
takes jurisdiction over a case haphazardly, the
judgment it renders may not be recognized or
enforced in another forum just in case that is
required to be done.

9
2.2. THEORIES OF JUDICIAL
JURISDICTION

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 Why a court of a certain country should
assume judicial jurisdiction over a private
international law case? and on what grounds it

Edited notes
should do so will be answered by theorist of
judicial jurisdiction ?. Bases for the assertion
of judicial jurisdiction are different in both Civil
law and Common Law Legal System.
 Civil Law emphasizes the defendant's

domicile as a primary basis of jurisdiction,

 In the Common Law the physical presence of

the defendant within the territorial jurisdiction

of a forum suffices in order to assert 10
jurisdiction against him
VARIOUS THEORIES OF JURISDICTION

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 The Power Theory ( or Territorial
Theory ):- a court of a country assumes
judicial jurisdiction when it has the power

Edited notes
over the defendant to force him in to its
judicial process.
 Physical Presence of the Defendant at time

of summons in the territory of the court is

enough to assume judicial power over this
person. This theory that has wide acceptance
in the common law countries focuses on the
court’s ability to make the defendant submit
to its jurisdiction and pass a binding decision 11
on her/him.
 Power theory, thus, explains jurisdiction vis à vis
the relationship of the person or a thing to the
forum(subject matter or material). It disregards

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the relationships of the parties that the defendant
or both parties could be non-domiciliaries
(personal), and the relationship between the

Edited notes
underlying controversy and the forum - that the
claim may have arisen elsewhere(local).
 How should we understand ‘the presence of a

defendant in the territories of a given state’?

 The physical presence of the defendant at the
place of the forum is not required to be for a long
period of time. A very interesting point relates to
the common law practice of establishing
jurisdiction over a transient defendant.." 12
 As an extension of the power theory, subjecting a
defendant who is on a mere sojourn to a court’s
jurisdiction as long as he is properly served with

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summon is deemed appropriate.
 Famous case (Grace V. McArthur) in which the

court pronounced in USA"… a defendant served

Edited notes
on an air plane flying over the state was reached
jurisdictionally even though the plane trip started
and was to end elsewhere, and did not even
include local landing.

13
 There arose once a very famous case in America that
involved the summoning of a defendant who was flying
from Mexico over the skies of the United States of

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America. The plaintiff had given defendant a writ while
on board flying over the American skies and the court
accepted this to maintain that it has jurisdiction. This
decision has led many to the conclusion that skywards

Edited notes
extension of power theory is feasible.
 Critics:-Exorbitant Jurisdiction- if the resources of the
defendant are found in another state other than the
forum state, the latter cannot ensure execution of its
judgment without reliance on the recognition of the
other state which is highly unlikely, since jurisdiction
founded on the notion of power theory is likely to be
regarded (especially by civil law countries) as an
exorbitant jurisdiction(in appropriate ).
14
However, this problem most of the time arise only for
international level in case of intra state most
federal laws adopt a solution to avoid lack of

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enforcement . For instance:- the 'Full Faith and Credit
Clause' under the US Constitution is designed to make
sure execution of judgments passed by different sister
states.

Edited notes
Cannot reach defendant leaving
jurisdiction of the state :-jurisdiction
cannot be extended so as to reach a
defendant who leaves the forum state
before he is actually served with a
summon.
Difficulty of Jurisdiction over
intangible properties :- 15
 THE MINIMUM CONTACT THEORY
 It is designed to Complement Power theory by avoiding its

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major deficiency which is not having the power to entertain
the matter if the defendant is not physically present at that
place. In such case the forum court will have jurisdiction if it
have minimum contact with the out come of the suit.

Edited notes
Operate only where assertion of jurisdiction through the
vehicle of the latter notion is impossible
 Famous case :International Shoe Co. V. Washington.
 In this case, the court holds that "… due process requires
only that in order to subject a defendant to a judgment in
personam, if he be not present within the territory of the
forum, we have certain minimum contacts with it such that
the maintenance of the suit does not offend traditional
notions of fair play and substantial justice“
 Doing of business, establishing domicile, place of cause of action
etc could be the basis for the existence of contact 16
THE FAIRNESS THEORY
 Fairness requires the forum state to try a case

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when it is convenient, fair and just to the parties.
In so doing, therefore, it asks questions like:
Would it be fair and convenient to the parties if

Edited notes
the case is tried here?
 Are witnesses accessible without much

inconvenience? Will the procedure and language

of the court cause huge difficulty on the part of
the defendant?
 Justification: Resolution of a dispute based on

fairness guarantees recognition elsewhere

17
 Critics:-its foundations or bases are rather vague
ones like efficiency, justice and fairness to which
terms giving a clear cut meaning when a dispute

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arises would be difficult. Therefore, practically
enforcing the theory may not be a simple task as
appealing the theory is. Proponents of the fairness

Edited notes
theory admit this fact . Nevertheless, they
maintained that fairness can be established by
consideration of three relational circumstances :

18
 1) The relationship between the litigants and the forum;
 Domicile and habitual residence as opposed to
temporary and casual presence

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 litigation capacity of the litigants. For example,
if a dispute involves an ordinary consumer, and
a manufacturer which engages in a multistate

Edited notes
activity, the latter's better litigation capacity in
the former’s forum may be assumed
 2) The relationship between the underlying controversy and
the forum;
 Accessibility of material evidence besides the
close and strong ties of the litigants with the
forum. The theory of fairness, thus, requires a
forum state to decline jurisdiction in favor of
the state where crucial evidences are available.
19
3) The controversies’ substantive relation to the forum
 The issue arises when the choice of law

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rules of the forum state would for one or
more reason be inoperative for the
resolution of the underlying controversy;

Edited notes
and even if it operates successfully,
whether the forum should undergo risk of
misinterpretation of foreign laws. when
the choice of law rules of the forum state
refers to a foreign law, the forum must
normally assume both additional burden
and run a greater risk of misinterpretation.

20
 2.4.CATEGORIES OF JUDICIAL JURISDICTION

 Three basic categories:

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 Jurisdiction in personam
 Jurisdiction in rem
 Quasi-in-rem jurisdiction
 1. Judicial jurisdiction in personam ( claim against the person)

Edited notes
 Personal Jurisdiction is the power of a court to impose its
decision on the parties to an action. Personal jurisdiction
arises where a plaintiff brings an action against an
individual in a given forum state so that the rights and
interests of the parties themselves be decided and in
such a case, only individual has the right to be heard in a
defense although it may concern the right of possession
of a property. Personal jurisdiction, or jurisdiction in
personam, can result in a judgment imposing a personal
liability or obligation upon the defendant in favor of the
plaintiff or, more generally, diminishing the personal 21
rights of a party in favor of another party.
 Thereexist two different ways a court of a
forum state can follow to check if it has got

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personal jurisdiction over the matter before it.
1. General jurisdiction( dispute-
blind type):-Thus, when the forum state looks

Edited notes
at and bases itself on the relationship between the
defendant and the forum to establish judicial
jurisdiction in personam, the court is said to be
exercising General Jurisdiction. The grounds which
used by the courts to ascertain the existence of
relation between the forum and the defendant differs
from country to country. However, most them take
into consideration nationality, domicile, habitual
residence and consent. 22
 2. Specific jurisdiction(alternative):-When a court of the
forum state exercises judicial jurisdiction by looking at the
nexus between the forum and the nature of the dispute, it is
said to be exercising special/specific/ alternative

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jurisdiction. From plaintiffs’ point of view, special
jurisdiction is a kind of jurisdiction that widens their
alternatives to sue the defendant. Different connecting

Edited notes
factors for different types of legal transactions such as Place
of conclusion of marriage, place of tortuous act, place of
formation/ performance of a contract.
3. Exclusive jurisdiction:-refers to power of a court to
adjudicate a case to the exclusion of all other courts.
- employment contracts are most of the time reserved by
states as their exclusive jurisdiction
 Long arm personum jurisdiction;- the ability of local courts
to exercise jurisdiction over foreign defendant. This
jurisdiction permits a court to hear a case against a
defendant and enter a binding judgment against a
23
defendant residing outside the jurisdiction.
 2. Judicial jurisdiction in rem ( claim of right over a
property) usually involves an action against a thing, or res.
Theoretically and often formally, the action is against the

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thing and a relief is sought with respect to a thing itself,
though a human person is named as a defendant in the
litigation

Edited notes
In rem jurisdiction gives a court the authority to determine
title to an object or real property. It is most often
implicated when possible claimants are unknown. It is
usually invoked when courts are asked to determine the
rights of all people concerning some property. For example,
in rem jurisdiction would apply to a case in which someone
has found a diamond ring and has initiated an action to
determine to whom the ring belongs.
 The court where the property situate in most states will have
exclusive jurisdiction.
 Exception: Movable property in transit at place of 24
destination
 3. . Quasi-in-rem jurisdiction- The common law world
sometimes adopts a different classification which adds a third
class, quasi in rem jurisdiction, to the above mentioned

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types. In case of quasi in rem jurisdiction the true
object of the case is inpersonum. However the forum
court didn’t have connection to ascertain inpersonum

Edited notes
jurisdiction over the defendant in this case if the
defendant has properties at forum the forum court uses
its in Rem jurisdiction over property to "force" a litigant over
whom the court has no personal jurisdiction to appear in court
by attaching property that belongs to the litigant. It applies only
when a litigant has property within a state. The court in that
state may take control of that property and force the litigant to
submit to jurisdiction of that court if the litigant wants to get his
or her property back. In this way, the court can obtain
jurisdiction over that party even if the court would normally have
no personal jurisdiction over that party.
• 25
 For example: John, a resident of Kenya , and
Abebe, a resident of Ethiopia , get into a car
accident in Sudan. Abebe sues John in Ethiopia .

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Normally, absent other facts, the Ethiopian court
would have no personal jurisdiction over John
because John is not a resident of Ethiopia(General

Edited notes
jurisdiction) and the accident did not happen in
Ethiopia(specific jurisdiction). However, suppose
John owns a farm in Ethiopia. In such a case, the
court could assert jurisdiction over the farm. In
essence, the court would be saying to John,
"Either appear before our court in Ethiopia or we
will seize your farm and use it to satisfy Joan's
lawsuit against you." This is a classic exercise
of quasi in rem jurisdiction 26
2.3. DOMICILE, HABITUAL RESIDENCE,
NATIONALITY AND CONSENT OF PARTIES
AS BASIS OF JUDICIAL JURISDICTION

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1. Domicile as Ground of Judicial Jurisdiction
 Definition: A domicile is a person’s true and

Edited notes
permanent home, the place where he
intends to remain, and to which he plans on
returning if he leaves. Domicile is generally
understood as the cumulative value of two
elements:
 The fact of residence (the fact of physical
presence with some continuity), and
 The intention of remaining at a certain
place (or the non existence of any
27
intention to make a domicile elsewhere).
 Principles of Domicile
I. No person can be without a domicile. This
rule springs from the practical necessity of

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connecting every person with some system of
law by which a number of his legal relationships
may be regulated.

Edited notes
II. No person can at the same time have
more than one domicile.
A person may have more than one place of
residence. It is, however, an absolute legal
impossibility for an individual to have more than
one place of domicile

28
III. An existing domicile is presumed to
continue until it is proved that a new
domicile has been acquired. Hence the

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burden of proving change of domicile rests
with those who assert it. Unless the judicial
conscience is satisfied by the evidence of change,

Edited notes
the domicile of origin persists.
IV. Domicile is one of the connecting factors to
determine both jurisdiction and applicable
law. Hence the question where a person is
domiciled is determined by applying the law
of the forum.

29
 Types of Domicile
Domicile of Birth or Origin Domicile of birth.

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 which is a domicile assigned by law to a child

when he is born.
Domicile of dependency(by the operation of

Edited notes
the law), which means that the domicile of
dependent persons (children under sixteen and
mentally disordered persons) is dependent on,
and usually changes with, the domicile of
someone else, e.g. the parent of a child

30
 Domicile of Choice A domicile of choice:- refers
to any domicile acquired by the individual himself.
Domicile of choice may be the person’s domicile of

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birth, if he chooses to remain once he reaches an age
to choose, or it may be any other domicile chosen by
the individual. These three factors must co-existe

Edited notes
 Physical presence- At the place of domicile.

 Capacity – the individual must be of legal age, and

have freedom of choice.

 Intent- the individual must have intent to change his

or her current residence to another state or

jurisdiction. The individual must intend to make this
new residence his or her permanent residence. It is
not the intent to never to move again rather it is the
lack of present intent to make another place our
domicile. 31
 Issue ;- where do you think will be the domicile of soldiers or
diplomates.
 Domicile of a corporate or business organization Dilemma:

Place of Registration(artificial person as domiciled in its place of

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

incorporation, even if it carries on business elsewhere) the

corporation is likely to be familiar with that state's law, arguably
more familiar than an individual domiciliary would be, because the

Edited notes
corporation presumably based its incorporation decision in part on
the state's substantive law.
or Place of principal Business (principal place of business as its
domicile.) The latter view seems to be the widely accepted one in
the common law system while the first one dominates in civil law
countries.
 Is it necessary that a business organization should acquire
only one place of domicile?
 Expanded the concept of domicile:
 corporation acquires an extra domicile for branches if

it satisfies certain criteria imposed by the host state in

addition to domicile at place of registration. 32
DOMICILE AS GROUND OF
JURISDICTION CONTD…

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 Justification for Domicile as a basis of jurisdiction:
 Convenience and familiarity. A person is unlikely
to be inconvenienced when sued in his domicile

Edited notes
forum in which he is most connected.
 Benefit burden rationale. A famous dictum goes
"…the state which accords him privileges and
affords protection to him and his property by
virtue of his domicile may also exact reciprocal
duties[ by claiming jurisdiction on him]“
 Assuming judicial jurisdiction on the basis of a
person’s domicile is advantageous for a plaintiff
particularly when the defendant is temporarily
outside of the forum. The rule saves plaintiff 33
from chasing the defendant wherever he is.
 Critics of domicile as ground of jurisdiction
 It disregards the significance of a convenient
forum in the administration of justice.

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Convenience to party depends on accessibility of
witnesses, and the connection of the underlying
controversy to the forum
 Identifying the intention of the a person to live

Edited notes
permanently in a certain place is a very difficult
task as it depends on the mind set up of the
person.

34
DOMICILE AS GROUND OF
JURISDICTION CONTD…

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 New Developments
 Habitual Residence replacing domicile as
ground of judicial jurisdiction in EU parties to

Edited notes
Hague Convention on Jurisdiction and Foreign
Judgments in Civil and Commercial Matters.
What differentiate habitual residence from
domicile is the former focus on the
pervious activities of the person which can
be easily traceable while the latter take
into consideration future plan of a person.
 Habitual residence it can be understood as
“permanent and usual centre of interests of a
person chosen by the person.” 35
2. Nationality as ground of Judicial Jurisdiction
CONTD…

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 Justification: as the state has extended protection and
benefits to the person he reciprocally has duty of loyalty
allegiance to submit himself to jurisdiction of his national
courts

Edited notes
 Does not depend on the subjective intentions of the individual.
 The advocates of nationality claim that it is more stable than
domicile because nationality cannot be changed without the
formal consent of the State of new nationality.
 Critics:- Nationality and place of Domicile or Habitual
residence could be different it making jurisdiction at place of
nationality inconvenient for defendant
- The principle of nationality achieves the purpose of
stability, but by the sacrifice of a man’s freedom to adopt the
legal system of his own.
- There may be difficult cases of double nationality or of 36
statelessness.
CONSENT/SUBMISSION

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3.Jurisdiction based on consent/submission
 Earlier Times: The parties did not have had any

control over place of trial they had to go but only

Edited notes
to the statutory place of trial.
 Current understanding: The parties’ consent or

choice as to the place of trial is regarded as a

major basis for the assertion of judicial
jurisdiction. An individual or corporate defendant
may actually consent to personal jurisdiction,
thereby creating a basis of power though she/he/it
is neither present nor domiciliary of the forum

37
CONSENT/SUBMISSION CTD…
 Consent by Plaintiff established by bringing of

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action in a forum court
 Consent by defendant established:
 1. By prior consent (forum selection clause in contract)

Edited notes
it involves two opposed and competing forces. The
first is the need to enforce parties’ agreement through
efficient and effective procedures, provided it is valid
and fulfills all formal requirements. The second and
opposing force is the public concern for protecting
persons in inferior bargaining position from economic
coercion. In an employment contract, the 'employee',
and in consumer contract the consumer are usually
regarded as a weaker party. And the national laws of a
state will provide device to strike the balance.
38
 Forum selection clause:
 Must have some connection with selected forum either:
 Place of contract

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 Place of performance
 Domicile
 Forum selection by parties may be held in two ways

Edited notes
in one hand parties may stipulate a clause that say a
certain specific court will have the power to
entertain the case in other hand they may put it in
that way that the plaintiff have the freedom to
choose any court to entertain the matter. Jurisdiction
to particular court or any court selected by plaintiff?
Jurisdiction to any court contrary to procedural due
process of the law. lack of notice to the defendant.
 Parties are not allowed to outset exclusive
jurisdiction of a certain state court by their
agreement.
39
 E.g. Insurance, cases which relate with immovable
properties,.
  2. Agreement after cause of action arises
 3. Consent by appearance and defense of
subject matter of the case. Exception: Special

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appearance to contest jurisdiction is not consent
if he merely argues that the court has no
jurisdiction over him.

Edited notes
 4. A claimant who is abroad sues a defendant in
the local forum. And in return if the defendant
raise counter claim against the plaintiff the
latter will take the step of the plaintiff for that
claim.
 Advantage :
 It enables parties to escape the harshness or
the inconvenience of statutory place of trial.
 minimizes, at least potentially, the cost of
litigation, and other related factors. 40
2.5. LIMITATIONS ON THE EXERCISE OF JUDICIAL JURISDICTION

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 Defendant may challenge the Plaintiff’s
choice of forum because of three major
grounds for a declining of jurisdiction:

Edited notes
 1) Forum non convenience(Inappropriate
forum)
 2) Pendency Similar proceedings on foot
elsewhere)and
 3) Austere clauses (Parties agreed on another
forum as suitable prior to the dispute in issue)
 Remedy: Seek to stay, dismiss( decline), or
transfer proceedings

41
FORUM NON CONVENIENCE

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1. Inappropriate forum doctrine
 A general discretionary power for a court to decline to

exercise the jurisdiction it possesses because it is not the

Edited notes
most suitable court to hear the case but some foreign court
is.
 Forum court is not convenient or appropriate to hear and determine
the matter brought before it if the action had the most real n
substantial connection with another forum by evaluating it in regard
to certain factors such as availability of witnesses, the convenience
of the place to the parties, the r/n b/n the case and the law to be
applied.
 The exact formulation of the test differs from one
country to another, reflecting different degrees of
judicial comity.
 However, the underlying purpose of the doctrine is
similar in each case – to ensure that a matter doesn’t 42
proceed in a forum with which it lacks genuine
connection.
 CONTD…

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 Defendant need to show: Vexatious (unjustified trouble & harassment)
& Oppressive, Abuse of Process, and No injustice to Plaintiff. must prove
the forum court will be in appropriate and the other court will be appropriate.
 Onus/burden of proof always on the Defendant

Edited notes
 Focus: moral proprietary of proceeding rather than territory law
area,
 Stay/dismissal rarely granted
 Dismissal does not entail a res judicata effect (claim preclusion (when we
require identical parties and same cause of action) or issue preclusion (where an
issue necessarily determined in an earlier litigation may be given a preclusive
effect )) nor does exclude it. (We have inconsistent practices). Courts
may at their own discretion allow reinstitution of the same action
when, for instance, the defendant cannot be subjected to the
jurisdiction of the convenient forum, or that the period of
limitation for the action has lapsed in the calculation of that
forum 43
 Objectives of Forum Non convenience doctrine:

CONTD…
Antidote to Excessively Wide Bases of Jurisdiction:- there

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will be different courts with their own connecting factor to
have jurisdiction over a certain case. in this situation
through doctrine of forum inconvenience the courts which

Edited notes
assert jurisdiction over the case and which will result
unfairness to the parties will lose it’s power by its own
initiation.
 Providing Flexibility:- most private international laws
provide for courts specific number of connection which will
be used as abase for jurisdiction and this connection may
not be able to create the expected convenience to the
parties. Which means the laws are defeating their own
purposes. in order to avail this problem FNC will give the
courts a discretion to evaluate the convenience of the
court in case by case bases and it may get the appropriate
forum for the given case. 44
 Preventing Forum Shopping and vexatious:- by restricting
the plaintiff into a convenient forum.
 Critiques against FNC:-
 Greater potentiality for abuse by courts
exercising their discretion. A judge may attach

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much weight to some factors with intent to affect
the interest of one of the parties.
 A judge might be persuaded of his courts

Edited notes
unsuitability less by the circumstance of the case
than by his own overcrowded calendar.
 The doctrine permits an additional and lengthy
hearing before the final trial.
 The plaintiff's problem is further complicated by
uncertainty as to what makes a forum
appropriate.

45
 PENDENCY (LIS ALIBI PENDENS)
 Meaning:Pendency refers to a situation where parallel proceeding
involving the same parties and cause of action are continuing in

04/24/2025
two different states at the same time.
 Objective: to prevent inconsistent judgements
 No uniformity as to the basis for pendency rule:

Edited notes
A. Forum Non Convenience doctrine
an important part of the doctrine of FNC. Under English law, a
considerable weight is given to pendency factors if the foreign forum
has made substantial progress in the proceeding, which action started
first being irrelevant.
CRITICS:- exposure to unrestricted courts discretion.
B. The First Seized Approach
This approach requires the courts of the forum to defer to the courts of a
foreign state if the latter are first seized of the proceedings .when is a
court deemed to be seized of proceedings? the moment when the
document instituting the proceeding is filed with a local court or, the
moment when this document is served on the defendant.
Critics;-which court is first seized may be an accident of timing.
- actions may be started contemporaneously. 46
 C. Recognition Prognosis: a court declines
jurisdiction if the action abroad is likely to lead to a
judgment which is recognizable under its law.

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Countries experience
 Countries like England, U.S.A, and Germany
recognize the Lis Pendis rule and their courts
have got the power to order a stay of

Edited notes
proceeding. On the other hand, in France, Italy
and The Netherlands, pendency of a suit in a
foreign court does not bar the forum from
exercising jurisdiction.
 What is the position adopted in the Ethiopian

legal system?
 Article 8 sub article 2 of the Civil Procedure
Code provides: Pendency of a suit in a foreign
court shall not preclude the courts in Ethiopia
47
from trying a suit founded on the same cause of
action.
 The Procedure code has made it clear that we belong to the
second category of countries pointed above. Some writers,
however, have voiced their concerns about the exclusion of this
principle, especially when one sees that its rationale is a strong.

04/24/2025
that is why the draft private international rule take different
stand on this regard.
Section 6: Pendency
 30. Jurisdiction of the court first seized

Edited notes
1. Where proceedings involving the same or similar questions
of law or fact and between the same parties are brought in the
Ethiopian and foreign courts the Ethiopian courts shall of its own
motion stay its proceedings until such time as the jurisdiction of
the foreign court first seized is established.
2. Where the jurisdiction of the foreign court first seized is
established the Ethiopian court shall decline jurisdiction in favor
of that court.
3. The provisions of this Article shall not be applicable where
actions come within the exclusive jurisdiction of Ethiopian courts
4. For the purpose of this section “the court first seized” shall
mean the court before
which the action is first instituted and a file number is given 48
thereto.
Critiques against Pendency
 * If the foreign judgment is not recognizable, the
parallel proceedings will be allowed to continue. But

04/24/2025
this will create additional expense and inconvenience
to the parties.
 * It is not easy to predict whether a foreign judgment
will be recognized in the forum. There is a particular

Edited notes
difficulty with certain defenses, such as public policy,
which can only properly be considered after the
foreign judgment has been granted.
 * What happens if subsequently it turns out that the
foreign judgment cannot be recognized? German law,
somehow, avoids this problem by adopting a
procedure of initially suspending rather than
dismissing local proceedings. Dismissal will only take
place once it is apparent that the plaintiff no longer
has a need for domestic legal protection. Swiss courts
also have adopted a procedure of only suspending 49
proceedings and do not decline jurisdiction
OUSTING JURISDICTION BY AGREEMENT

 When parties opted for selection of forum,

 Justification:- the court found that enforcement of the

04/24/2025
clauses would be in accord with the ancient concepts of
freedom of contract.
 The court found such clauses indispensable in international

Edited notes
contracts, trade and commerce.
 Requirements: -Prima facie validity of clauses.

-The forum selection clause must be fair

and reasonable.
Mixed state court reaction:-As far as the effect of ousting
clause (i.e. negative implication of forum selection clause) is
concerned, the Common Law and Civil Law countries stand in
different positions. in the former case the court has
discretionary power to decline its jurisdiction or to proceed
with the trial. However, while doing so it must take in to
consideration certain reiquiments to protect the sanctity of
contract. In Civil Law jurisdictions, a local court cannot try a
case where there is a foreign choice of jurisdiction. by the 50
parties from exercising their jurisdiction.
The declining of jurisdiction is compulsory.
Under German law, for instance, the effect of
a foreign choice of jurisdiction agreement is

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the ex officio dismissal of the local claims as
inadmissible.

Edited notes
Although most states now enforce forum
selection clauses, a few still rely on the old
ouster "rational, that courts should not be
ousted.
Related Actions
Related actions are defined, as per Art 40
sub Art 3, as those actions which are closely
connected that it is expedient to hear and
determine them together to avoid the risk of
irreconcilable judgments resulting from 51

separate proceedings.
 For countries who adopt forum non
convenience doctrine, cases for related

04/24/2025
action doesn’t pose that much problem as
the judges are free to address it through it.
However, for other states it needs to have

Edited notes
separate rules to be regulated.
 Art 31 of draft proclamation stipulate two

solutions for the court.1. to stay

proceeding :- if the foreign court first sized
the case.
 2. if the foreign court has jurisdiction on both

the related cases and if consolidation of the

cases is possible as per the law of the foreign
state, the forum court may decline her
jurisdiction up on the application of the 52

parties.
 The Requirement of Full Faith and Credit
In almost every legal system, there is a well
settled guarantee against re litigation of matters

04/24/2025
which are already determined by a competent
court in prior litigation. The question as to which
matters are deemed to be determined in prior

Edited notes
litigation, and whether the parties and the cause
of action in both forums should be identical is
addressed by the res judicata rules of the
respective state.
Justification:-
 Minimize the judicial energy devoted to

individual cases,
 Establish certainty and respect for court

judgments,
 Protection of the defendant from being vexed 53
by multiple litigation.
Exceptions
 fraud, duress, evasion of the parties,

04/24/2025
 violation of due process requirements,

 lack of jurisdiction

 repugnance of the sister state judgment to

Edited notes
the local policy of the recognition state

54
 READING ASSIGNMENT

 Under Ethiopia legal system which law

making body(either federal or regional) is

04/24/2025
empowered to enact conflict of laws in
general and judicial jurisdiction rules in
particular? And by comparing Ethiopian

Edited notes
laws with other country experiences make
your recommendations on, which law making
body will be more appropriate to enact laws
on this area?

55
INTERSTATE CHOICE OF JURISDICTION
 the choice of jurisdiction rules resolves the question

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which state, provided states are empowered to exercise
concurrent jurisdiction over federal matters, or which
federal court among those established in various parts of
the federation, should assert judicial jurisdiction.

Edited notes
 Under several federal states, the choice of jurisdiction
rules is governed by Civil Procedure Codes or Conflicts of
Law Rules..
 whether each government, state and federal, is free to
determine the bases of judicial jurisdiction by its own
procedural rules or conflicts of law rules, or whether state
courts, at least in exercising concurrent jurisdiction over
federal matters, are bound to respect the bases of judicial
jurisdiction that are followed by federal courts.
 But, considerations of pragmatic factors, risks of parallel
litigation, distance litigation, and the like, seems to
support for a uniform enactment of choice of jurisdiction 56
rules.
 The FDRE Constitution is not much clear as to
whether the HPR is authorized to enact the
bases of judicial jurisdiction for the assertion

04/24/2025
of jurisdiction over federal matters.

Edited notes
57
 The authority of the HPR to enact choice of
jurisdiction rules is difficult to ascertain. Art.
55 sub Art. 2 of the FDRE Constitution

04/24/2025
provides "the HPR shall enact civil laws which
the House of Federation deems necessary to
establish and sustain one economic

Edited notes
community". This provision may be invoked
to justify the attempt of the HPR to enact
uniform choice of jurisdiction rules. But, in
order to do so, one needs to create strong
nexus between choice of jurisdiction rules
and their indispensability for the '… necessity
to establish one economic community'

58
Jurisdiction Related Basic Constitutional
Guarantees
 The most common constitutional guarantees

04/24/2025
that are contemplated in several federal
constitutions pertain to: Equal treatment of
non-residents in regards to legislation and

Edited notes
judicial proceedings. and, protection against
subsequent re litigation of a matter which is
already determined in prior litigation by a
sister state(full faith and credit clause).
 The FDRE Constitution seems to provide no

essential difference from the contemplations

made under other federal constitutions. It
has retained the virtue of the principle of
equal treatment as regards to the right of
59
access to justice of citizens, and all that
concerns judicial proceeding under art 37.
 The requirement of notice and the
opportunity to defend or appear. which
adopted by USA constitution. However, the

04/24/2025
fact that the requirement of notice and the
opportunity to defend is not accorded
constitutional significance in other federal

Edited notes
sates may not necessarily mean that such
states are free to disregard it. It is well
founded that any deprivation of property,
liberty or life be preceded by appropriate
notice and opportunity to defend as would be
required in the circumstances of the case of
justice.

60
2.6. JUDICIAL JURISDICTION OF
ETHIOPIAN COURTS

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
. Ethiopia does not have laws on conflict of laws has a direct impact on the manner
our court’s handle the issue of judicial jurisdiction. Proclamation No. 25/1996, the
Federal Courts Proclamation, has incorporated some provisions pertinent to private
international law.

Edited notes
 Procl.25/96
 Federal Courts Jurisdiction : Art. 5 (2) suits between persons permanently residing in
different Regions(envisages inter-state conflicts situations); Art. 5 (4) cases to which
a foreign national is a party(concerned with international conflicts cases.).
Accordingly, the law has made it clear that both types of conflict cases belong to the
federal courts’ jurisdiction.
 Justification :
 Avoid local prejudice:- protect an out-of-state defendant from local bias that could
possibly be encountered in a state court against him/her.
 To help formulate national rule of conflict of laws:-
 Quality of justice:- The high quality of justice that federal courts most of the
time deliver (in relative terms) constitutes another reason for granting federal courts
61
diversity jurisdiction.
 Moving to the more specific provisions,
Article 11 is concerned with first instance
civil jurisdiction of the Federal High Court.

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The provision makes:
 -cases regarding private international law

(Sub 2(a)) and,

Edited notes
 -application regarding the enforcement of

foreign judgments or decisions (Sub 2(c)) an

exclusive province for Federal High Courts.
 The crucial point to note is that, though the

law has enabled us to know which courts

(federal or regional, supreme or high courts)
have the power to entertain private
international law cases in Ethiopia, we do not
have specific rules that guide the Federal 62
High Court to exercise judicial jurisdiction.
JURISDICTION UNDER FEDERAL
DRAFT CONFLICT OF LAW

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 General and special Jurisdiction
Two Understandings:

Edited notes
1. In reference to the scope of jurisdiction of
a court
 A court of limited jurisdiction is one which is
restricted only to those classes of cases
specifically listed under legislations, constitution
or other legal sources of the sovereign
establishing the court
 A court of general jurisdiction is one that is
conferred with jurisdiction over any cases except
those which supply exclusive jurisdiction of
63
another court or that given to the court of limited
jurisdiction.
 CONTD…
 In USA, for example, state courts are courts of

04/24/2025
general jurisdiction whereas federal courts are
regarded as courts of limited jurisdiction.
 In some other states, neither federal nor state

Edited notes
courts are identified by general or limited
jurisdiction. A typical example of such tradition is
found in Switzerland, and the Federal Democratic
Republic of Germany. In Switzerland, general
jurisdiction, both internationally and in the
interstate matter, lies in the court in which the
defendant is domiciled, be it a federal or state
court.
64
 CONTD…
2. In reference to the grounds of jurisdiction

04/24/2025
 Basic Place of Jurisdiction
 Default place of Jurisdiction in Normal circumstances unless
another place is indicate by law.

Edited notes
 Special Jurisdiction
 Based on special nature of the dispute
To protect weaker party; and for procedural expediency.
 Exclusive Jurisdiction
 No other place can claim jurisdiction other than the place
indicated as exclusive
 Cannot be ousted by agreement of parties

65
CASE OF ETHIOPIA UNDER DRAFT PROC…

04/24/2025
 Classification
 General Jurisdiction (Basic place of jurisdiction)
 Special jurisdiction

Edited notes
 Exclusive Jurisdiction

1. General Jurisdiction (Art.9)

 Place of defendants domicile ( Art.9(1))
 Intrastate dispute jurisdiction of Federal High Court
(art.9(2))

66
Full faith and credit clause
Immunities and privileges clause
Full faith and credit clause
Immunities and privileges clause
Full faith and credit clause
Immunities and privileges clause
Full faith and credit clause
Immunities and privileges clause
Full faith and credit clause
Immunities and privileges clause
2.

Special Jurisdi ction

( Art.18 -32)

 Based on Nature of the Subject Matter ( Art 10)

04/24/2025
 Based on Nature of Action (Art.11)- joint defendant,
third party (guarantor), or consolidated actions
 Concerning marital rights and duties (art.12)

Edited notes
 Concerning filiations ( Art.13)
 Concerning guardianship ( Art.14)
 Concerning succession ( Art.15)
 Movable
 Immovable
 Limitation of liability ( Art.16)
 Insurance ( Art.17)
 Consumer Contracts ( Art.23)
67
3. EXCLUSIVE JURISDICTION
( ART.26)

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 Claims in rem on Immovable
 situs of immovable
 Business organization

Edited notes
 Seat of organization
 Entry in public registry
 Place of registry
 Patent/ trade mark etc
 Place of registration of patent or trade mark
 Proceeding relating to Enforcement of Judgment
 Place judgment given or Place judgment to be
enforced
68
2.7.PRACTICE OF ETHIOPIAN COURTS
IN ON JUDICIAL JURISDICTION

04/24/2025
Three different approaches , these are:
 Approach 1. Silence regarding judicial
jurisdiction

Edited notes
 Approach 2: Recourse to Civil Procedure Code
 Approach 3: Recourse to general jurisprudence

Approach 1. Silence regarding Judicial

Jurisdiction
 Case of Verginella V. Antoniani,
 Abebech Wolde V. Estate of Signor Konstantinov Escrapino
 Nediya Chartes V. Estate of Antonio Chartes
 The court ignored totally issue of judicial jurisdiction and went to
choice of law.
 We are not saying court lacked judicial jurisdiction in all these cases 69
but it must be raised clearly and established.
 CONTD…
Approach 2: Recourse to the Civil Procedure

04/24/2025
Code
Courts or parties have made recourse to the Civil

Edited notes
Procedure Code by:
 Applying the provisions referring to cases containing
foreign elements directly to establish judicial
jurisdiction … e.g Art 20 Dff residing abroad
 Applying the rule for local jurisdiction to
determine judicial jurisdiction. ( Art.19 ff)
 Dr. Henry Colombo V. Andrel Lewis Herald
 W/ro Astraid Debahian Jerahian V. Estate of Mr. George
Jerahian
 Brigadier General Tafesse Ayalew V.Clarville A.J Co.
70
and Mr. Robert William
 CONTD…
Approach 3: Recourse to General Jurisprudence

04/24/2025
Hallock V. Hallock
The court commented: as there is no codified

Edited notes
law on Private International Law in Ethiopia, the
question of jurisdiction has to be decided by
having recourse to the system “most common
in the European continent”. “general principles
of jurisprudence accepted in other countries”
 Brigadier General Tafesse Ayalew V.Clarville A.J Co.
and Mr. Robert William
 W/ro Aynalem Demoz V. Peter Beckensil

 both courts made reference to Sedler’s

71
Material
 CONTD…
EVALUATION AND RECOMMENDATIONS

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First observation
Domicile as the ground for judicial jurisdiction
because the Civil Code provisions are there to

Edited notes
serve Private International Law purposes
 (e.g. Marry Shatto V.Theodore Shatto). Nowadays,
however, Private International Law instruments are
shifting towards habitual residence as a substitute for
domicile.
 Recommendation: Better to use Habitual Residence
as ground

72
 CONTD…
Second Observation

04/24/2025
 Many Judgments made with total disregards of

the issue of judicial jurisdiction.

Edited notes
 Problem:
 a)denial of recognition and enforcement of the
judgment in other states, and
 b) failure to safeguard the forum’s public policy.
 Recommendation
 Clearly raise the issue of Judicial jurisdiction and
establish its existence before proceeding to choice of
law

73
 CONTD…

04/24/2025
Third Observation
 Reference to provisions of Civil Procedure code on

Local Jurisdiction to Cases of conflict of laws

Edited notes
 Problem:
 Thecivil procedure was not intended for conflict of
laws cases but meant to apply only to domestic
disputes
 The policy behind provisions differ
 Recommendation
 Better to devise separate rule for conflict of laws

74
 CONTD…
Fourth Observation

04/24/2025
 In the absence of legislation Many courts

proposed a resort to general jurisprudence to

establish Judicial Jurisdiction.

Edited notes
 Earlier general reference to practice of other

countries but recently relying on Sedler’s Book

 Problem
 Ifno guideline prepared for the courts to which
country's practice should we refer? Possible
inconsistency among court practice.
 Wastage of Judicial Resource

75