Jurisdiction of Courts, Want of Jurisdiction, Exclusive Jurisdiction, Forum Non-Conveniens, Foreign Jurisdiction Clauses.
16 August 2020
Jurisdiction of courts is dealt in every case brought before the courts but understanding the concept has not always been an easy exercise. It is misunderstood as either indicating the authority of the court or the power of the court. The topic is more complex when the subject matter is whether the court lacks jurisdiction and this could be either because the court does not have jurisdiction over the subject matter of the dispute or because the jurisdiction to settle disputes have been granted to a foreign court. This exposition seeks to offer an understanding of the concept of jurisdiction by analysing the laws which grants authority and power to the courts and recommends that jurisdiction of courts should be defined as both authority and power of courts. It addresses the topic of lack of jurisdiction by dividing it into patent lack of jurisdiction and latent lack of jurisdiction and uses case laws to show patent lack of jurisdiction is incurable whereas latent lack of jurisdiction can be cured by inaction or consent of parties. It then critically analyses the judicial decisions on foreign jurisdiction clauses and posits that such clauses can never oust the jurisdiction of courts. However, it disagrees with the judicial attitude of treating them as arbitration clauses. Since such clauses cannot oust the jurisdiction of the courts, there is no need for them to be regarded as arbitration clauses in order to escape the application of section 28 of Contract Act 1872.
SALR Article No. 03
Ref No.: SALR/JOURNAL/1stV/FI/Aug-003