Territorial Jurisdiction Global Legal Issues

Posted by Sohail Khatri  |  at  10:09 PM No comments

There are different forms of jurisdiction. Territorial jurisdiction refers to the competence of a court to decide a case on the basis of certain geographical area/territory. So, if a dispute arises in Karachi, the courts in Karachi would only have territorial jurisdiction, and the case cannot be filed in Islamabad or Lahore. Ordinarily, territorial jurisdiction lies where the defendant resides or carries on business or the cause of action has wholly or partly arisen or the immoveable property is situated (in case the matter relates to land etc.).
Note that the person who files a lawsuit is called plaintiff and the person against whom it is filed is called defendant. Thus, if a contract is signed at Lahore under which Mr. Ali has to deliver certain goods to Mr. Imran at Karachi and Mr. Ali resides at Rawalpindi, then Mr. Imran can file a suit against Mr. Ali for his failure to deliver the goods. This suit can be filed at any of the three places, that is, Lahore, Karachi or Rawalpindi.

Note that there is no question of any conflict of laws in this scenario since laws all over Pakistan are almost the same. However, things get complicated when we talk of a legal dispute in cyberspace because of the nature of the internet which transcends any geographical boundaries. Here, different countries, having different set of laws, may come into picture having certain linkage with the internet transaction. The issue of territorial jurisdiction becomes complicated when we try to find that the court of which country has the lawful jurisdiction to decide the internet dispute.
For example, an Australian firm having web site in English doing eCommerce does not indicate to its customers that it is an Australian firm. The web server hosting its site may be located in Canada, and people maintaining this site may be the residents of England. Assume a Pakistani buys certain goods from this Australian firm and is, later, unhappy with the goods received. He might want to file a lawsuit against the Australian firm. The border/boundary based system of jurisdiction in the physical world does not help this Pakistani in determining where to file the case. He may consider filing the case in any of the countries which have linkage or connection with the transaction, namely, Australia, England, Canada or Pakistan. Another example is of a defamatory message sent from England defaming a Canadian. The web site may be hosted in Sweden, and the ISP providing services may be located in Brazil. Again, four different countries having different set of laws are emerging in this transaction, that is, England, Canada, Sweden and Brazil. In all such matters the plaintiff has an option to choose the country/forum for filing his case. Obviously, the plaintiff would choose the forum whose laws are more favorable to him as compared to the defendant.

The relative ease with which the plaintiff in cyberspace can drag the defendant to the forum of the plaintiff’s choice is called forum shopping. So, if the law of evidence in Singapore suits the plaintiff and he can also establish cause of action or linkage of the internet transaction with Singapore, then the case may be legitimately filed there. One of the key tests that the courts have prescribed to determine territorial jurisdiction in cyberspace is to examine the level of interactivity, commercial nature and effects of the exchange of information.

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