Presence in federal states and complex countries

In cases which turn upon the presence of the defendant within the jurisdiction of the foreign court, and where this question arises within the context of a federation, it appears[1] that he must be present within the State if sued in the State court, and present within the federation if sued in a federal court. To the extent that the rule depends upon the territorial power of the summoning court, this makes some sense, even if it may appear to lead to capricious results. But it is important to note the limits of this principle. If the defendant is sued in the court in city A when, as a matter of local law, he should have been sued in the court in city B, this raises only a question of local, as distinct from international jurisdiction; and any such error does not affect the question whether the defendant was present within the jurisdiction of the courts of the country. On the other hand, if one asks whether a person who is present in Texas is present in the United States, there is surely only one answer possible, and the answer is no different if proceedings are brought against him in New York. If there is anything in this reasoning, it would suggest that the court in Adams v Cape Pic had taken a false step, even on a matter of obiter dicta.

Defendant agreeing to accept the adjudication of the foreign court: voluntary submission

As an alternative to his being present, the defendant may agree to accept the adjudication and judgment of the foreign court by submitting to its jurisdiction. If he did, he is in principle bound to accept and abide by that court’s decision on the merits.

The explanation is easy. The defendant will not have been present within the territorial jurisdiction of the foreign court, with the result that the principles of comity and territoriality referred to above do not require him to abide by the judgment. But if he has made an agreement with the claimant - and all the instances examined under the rubric of submission are cases of agreement with the claimant - to settle their differences before, and to abide by the judgment of, the foreign court, his counterparty may hold him to that agreement and enforce it (or its consequences) against him. The English court may enforce the parties’ mutual agreement to abide by the judgment of the court, and no great issue of principle arises.[2]

With that short introduction, it is necessary to distinguish three versions of submission by (or agreement of) a defendant to the jurisdiction of the foreign court.

  • [1] The court in Adams v Cape did not need to decide the point, but inclined to support the propositions set out here, at 557. What is said here about presence within a country will apply, mutatis mutandis, to the alternative jurisdictional basis of submission. 2 If the point is going to be important, say if it will be argued that even if sued in a federal court it is not enough to be present somewhere within the federation, because under the foreign system the territorial jurisdiction of a federal court is also restricted, evidence will need to be put before the court to vouch for the point being made: Heiser v Islamic Republic of Iran [2019] EWHC 2074 (QB). 3 A different principle may operate if it be alleged that the defendant submitted by contract to the court for city A, and not to the court for city B, where he was sued: SA Consortium General Textiles v Sun & Sand Agencies Ltd [ 1978] QB 279; JSC BTA Bank v Tiirkiye Vaktflar Bankasi TAO [2018] EWHC 835 (Comm). 4 Although it is in an entirely different context, see Brightman LJ in Federated Homes Ltd v Mill Lodge Properties ¿.it/ [1980] 1 WLR 594: ‘I find the idea of the annexation of a covenant to the whole of the land but not to a part of it a difficult conception fully to grasp.' 5 For a thoughtful objection to the use of ‘submission' as a component of the law (though not generally to the results of cases which used it in their reasoning), see Dickinson (2019) 135 LQR 294.
  • [2] Penn v Baltimore (1750) 1 Ves Sen 444. 2 Whether the contractual submission is to courts generally, or to a specific court, in a country is a matter of construction. If the latter, and the claim is brought in a different court, the clause will not constitute submission, but the defendant’s voluntary appearance still may. See SA Consortium General Textiles v Sun & Sand Agencies Ltd [1978] QB 279; PJSC Rosgosstrakh v Starr Syndicate Ltd [2020] EWHC 1557 (Comm). 3 The same is true if the contract stipulates that the defendant will accept service at an address within the jurisdiction. 4 PJSC Rosgosstrakh v Starr Syndicate Ltd [2020] EWHC 1557 (Comm); Viccava Partners Ltd v Picard [2016] UKPC 5, [2016] 1 All ER (Comm) 891. 5 For the difficulty, PJSC Rosgosstrakh v Starr Syndicate ¿/¿/[2020] EWHC 1557 (Comm). 6 Vizcaya Partners Ltd v Picard [2016] UKPC 5, [2016] 1 All ER (Comm) 891, [56], citing SA Consortium General Textiles v Sun and Sand Agencies Ltd [1978] QB 279, 303 (a case on Section 4(2)(a) (iii) Foreign Judgments (Reciprocal Enforcement) Act 1933).
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