Extraterritorial Jurisdiction - Chapter 2.1 - Transnational Litigation and Commercial Arbitration - 3rd Edition
Joseph Lookofsky is Professor of Private and Commercial Law at the University of Copenhagen. He received his B.A. in Economics from Lehigh University, his J.D. from the New York University School of Law, and was admitted to the New York State Bar in 1971. He received his Danish law degrees (cand.jur. and dr.jur.) from the University of Copenhagen and joined the Law Faculty there in 1982. Professor Lookofsky has lectured on the CISG and other international commercial law topics for the Danish Bar Association (Advokatsamfund), the Duke University Law School in North Carolina, the University of Bologna (Facoltá di Giurisprudenza), the Albert-Ludwigs-Universität Freiburg (Institut für Ausländisches und Internationales Priv atrecht), and the Cornell-Paris I (Sorbonne) Summer Institute of International & Comparative Law. He is also Secretary General of the Danish Committee for Comparative Law (Association Internationale des Sciences Juridiques.
Ketilbjorn Hertz is Senior Consultant with the Danish Ministry of Justice, which he joined in 1997, and in that capacity he has participated in the drafting of important legislation, including the Bill, which led to the adoption of the Danish Arbitration Act 2005 He received degrees from the University of Copenhagen, B.A. in law in 1991, cand.jur. in 1993, B.A. in French in 1998, and Ph.D. in law in 1998.
In establishing bases for jurisdiction in the international sense, a legal system cannot confine its analysis solely to its own ideas of what is just, appropriate, and convenient. To a degree it must take into account the views of other communities concerned. Conduct that is overly self-regarding with respect to the taking and exercise of jurisdiction can disturb the international order and produce political, legal, and economic reprisals.1
2.1.1. Jurisdiction to Adjudicate
The jurisdictional inquiry is often complex: even within the framework of a single national or federal legal system, we find various distinct subdivisions of the larger jurisdictional question. But when we consider jurisdiction in a comparative or transnational context, the problems abound: not only because different legal systems conceive and speak of jurisdiction in different ways, but also because we sometimes have little or no basis for a given comparison, simply because there is no foreign analogue to a given system’s rule. Fortunately, however, we do share a considerable measure of common juridical ground, and the natural starting point for a transnational analysis of the jurisdiction problem is to seek out this comparative common core.
When a court in State X is asked to decide a given dispute — for example, a commercial dispute arising between two private contracting parties A and B — that court must first determine whether it has jurisdiction to adjudicate. In the most fundamental sense, a court which has such jurisdiction has the authority and the power to decide the case brought before it.
2.1 Introduction2.1.1 Jurisdiction to Adjudicate 2.1.2 Bases of Jurisdiction: a Comparative Survey A. Territorial Jurisdiction Based on Domicile B. Specific Jurisdiction in Contract and Tort C. Jurisdiction by Consent D. Nationality-, Property- and Presence-Based Jurisdiction