Conflict of Laws: Jurisdiction, Proof, and Exclusion of Foreign Law

Vocabulary practice flashcards covering jurisdiction in conflict of laws, the service and submission doctrines, forum non conveniens, the proof of foreign law, and the traditional exclusionary rules against foreign revenue, penal, public, and expropriatory laws.

Jurisdiction

The authority of a court or tribunal to decide a case, acquired over acts committed in a defined territory, over certain types of cases (subject matter), or over certain persons.

Act 459, s. 47

The statutory provision of the Courts Act that imposes value-based limitations on District Courts in Ghana, capping their jurisdiction at 6,000 GHC in personal actions (contract or tort) or land actions.

Jurisdiction in Rem

A court's authority over a tangible thing or legal status situated within its borders, resulting in a judgment that bars indifferently any person in the world from asserting an inconsistent claim.

Jurisdiction in Personam

A court's authority over the personal rights and obligations of specific parties to a suit, resulting in a judgment that binds only those parties and does not affect the rights of third parties.

Tyler v Judges of Court of Registration (1900)

The case in which Holmes J articulated the distinction between an action in personam (binding an individual's person or claim) and a proceeding in rem (barring all who might object globally).

Physical Presence Rule

The jurisdictional principle in Ghana and common law where serving process on a defendant physically present in the forum—even fleetingly—confers personal jurisdiction over them regardless of where the cause of action arose.

Wachter v Harlley [1968]

A Ghanaian decision by Crabbe J holding that if a defendant is served within the court's jurisdiction, the court has personal jurisdiction in respect of any cause of action in personam, even if the tort (defamation/slander) occurred abroad in Switzerland.

HRH The Maharanee of Baroda v Wildstein [1972]

An English case establishing that a defendant temporarily visiting England for a horse race was properly served with process, upholding jurisdiction based on fleeting presence.

Colt Industries v Sarlie [1966]

An authority confirming that service of a writ on a French defendant staying for a single night in a London hotel was sufficient to establish the English court's jurisdiction.

Submission to Jurisdiction

A basis of jurisdiction where a defendant voluntarily submits to a forum either by contract (choice of forum clause) or by conduct (such as entering an unconditional appearance without moving to stay).

Conditional Appearance (Order 9, rr 7 & 8 of CI 47)

The procedure in Ghana's High Court Civil Procedure Rules requiring a defendant who wishes to dispute jurisdiction to file conditionally and apply within 14 days to set aside the writ or service.

Service Procured by Trickery

The doctrine establishing that personal service will be vacated or set aside if the defendant was fraudulently deceived or enticed into the jurisdiction specifically for the purpose of serving process (e.g., Tickle v Barton).

In Re Dulles Settlement Trust (No 2)

A case in which Denning LJ held that vigorously protesting jurisdiction does not amount to voluntary submission, whereas contesting a case on its substantive merits does.

Order 8 of CI 47

The High Court procedural rule governing extended jurisdiction (service out of the jurisdiction), requiring prior leave of the court to serve a notice of the writ on a non-resident defendant.

Lokko v Lokko [1989-90]

A Ghanaian case holding that attempting to issue and serve a writ directly on a defendant resident abroad without first obtaining leave of the court renders the writ incurably bad and null and void.

Forum Non Conveniens

The discretionary doctrine whereby a competent court declines jurisdiction or stays proceedings because another available forum is more suitable for the interests of all parties and the ends of justice.

Spiliada Maritime Corpn v Cansulex Ltd (1987)

The landmark House of Lords case laying down the modern test for forum non conveniens, placing the initial burden on the defendant to prove that another available forum is clearly and distinctly more appropriate.

Natural Forum

Defined in The Abidin Daver as the forum with which the action has the most real and substantial connection, taking into account expense, availability of witnesses, governing law, and places of residence or business.

Lis Alibi Pendens

A doctrine translating to 'dispute elsewhere pending', which allows a court to stay proceedings when concurrent actions concerning the same matter are litigated between parties in different jurisdictions.

Fattal v Fattal [1999-2000]

A Ghanaian case establishing that for a plea of lis alibi pendens to succeed, it must be proved that both the foreign and domestic actions are identical with respect to the parties and the reliefs sought.

The Eleftheria

A leading English shipping authority holding that the court has discretion to stay proceedings brought in breach of a foreign jurisdiction clause and should grant a stay unless the plaintiff shows strong cause.

Fan Milk Ltd v State Shipping Corporation [1971]

A Ghanaian case holding that reasonableness determines whether a foreign choice of forum clause should be honored; the court retained jurisdiction because both parties were Ghanaian, goods were delivered in Ghana, and English law did not differ significantly.

Foreign Law as a Question of Fact

The core rule under common law and Section 1(2) of Ghana's Evidence Decree establishing that the existence and content of foreign law must be pleaded and proved by evidence rather than treated as domestic law.

Judicial Notice (NRCD 323, Section 9)

A statutory rule governing the judicial acceptance of facts that are either generally known within the territorial jurisdiction or readily determinable by resort to indisputable sources; traditionally unavailable for foreign law at common law.

Section 40 of the Evidence Decree (NRCD 323)

The statutory presumption that if a foreign law is not pleaded and proved, the law of that foreign state is presumed to be identical to the law of Ghana.

In Re Canfor (Decd.); Canfor v Kpodo [1968]

A Ghanaian case where a widow's claim to letters of administration and two-thirds of an estate failed because she did not formally plead or prove the Togolese marriage law under which she was married in Lomé.

Godka Group of Companies v PS International Ltd [1999-2000]

A decision holding that foreign law must be proved by evidence and that merely presenting a judge with the text of foreign legislation to draw conclusions does not satisfy the legal standard of proof.

Expert Witness on Foreign Law (NRCD 323, s. 67)

An individual qualified by reason of special skill, experience, or training to adduce oral or affidavit evidence regarding the meaning, interpretation, and application of a foreign legal system.

Bristow v Sequeville (1850)

An authority showing that having legal training in one system (Roman law in Saxony) does not automatically qualify a practitioner as an expert in another related jurisdiction (Prussian law).

Tsikata's Paradox

The phenomenon identified by Fui Tsikata where a Ghanaian court requires formal expert evidence to apply an English rule under choice-of-law principles, yet may freely consult English sources on its own motion to determine Ghanaian common law.

Foreign Revenue Laws Exclusion

The exclusionary rule tracing back to Holman v Johnson providing that domestic courts will not directly or indirectly enforce taxes, customs duties, capital gains, or fiscal claims of a foreign state.

Government of India v Taylor [1955]

A House of Lords decision establishing that unpaid capital gains taxes owed to the Indian government could not be admitted or paid from the assets of an English company undergoing voluntary liquidation.

Foreign Penal Laws Exclusion

The rule precluding domestic courts from entertaining proceedings or executing judgments whose object is the enforcement of punishments or pecuniary penalties for offenses against the public law of a foreign state.

Huntington v Attrill (1893)

The Privy Council decision by Lord Watson establishing that the penal exclusion applies strictly to suits vindicating state-imposed punishments or penalties, not to remedial civil suits brought by individuals to enforce personal rights.

Attorney-General of New Zealand v Ortiz [1984]

A case where the UK courts refused to enforce a New Zealand statute confiscating exported historic Maori carvings without compensation, categorizing the measure as an unenforceable penal or public law.

Residual Public Law Exclusion

A broad exclusionary category derived from Dicey that bars domestic courts from enforcing foreign sovereign public laws analogous to revenue and penal laws, including exchange controls and state security rules.

Public Policy Exception

A fundamental conflict-of-laws doctrine permitting a forum court to exclude an otherwise applicable foreign law if its application leads to a result contrary to essential domestic justice, morality, or international comity.

Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 & 5)

A House of Lords decision refusing on public policy grounds to recognize an Iraqi government resolution confiscating Kuwaiti aircraft, because the law constituted a gross violation of international law and human rights.

Lex Situs Rule in Expropriation

The rule that a foreign state's expropriatory, requisition, or nationalization decree will be recognized only in respect of property located within that foreign state's territory when the law was enacted.

Bank voor Handel en Scheepvaart v Slatford [1953]

A case demonstrating that foreign expropriatory legislation has no extraterritorial reach, refusing to enforce a decree by the Dutch government-in-exile purporting to confiscate property situated in England.