DRAFT OHADAC MODEL LAW RELATING TO PRIVATE INTERNATIONAL LAW

Article 6

General scope of jurisdiction

1. The Caribbean courts have jurisdiction for proceedings initiated in Caribbean territory between Caribbean nationals, between foreigners, as well as between foreigners and Caribbean nationals, in accordance with the provisions of this law and of the international Treaties and agreements to which the Caribbean is party.

2. Foreigners have access to the Caribbean courts in the same manner as nationals and are entitled to effective judicial protection. No deposit or security, however called, may be required of a claimant or intervening party, whether on grounds of his foreign status or on account of his absence of domicile or residence in the territory.

3. Choice of forum agreements are licit when the dispute is international in nature. A dispute is international in nature when it includes an element of foreign status corresponding to those referred to in Article 1 §2.

116. Article 6 opens Part II of the model law by beginning a Chapter One devoted to the scope of the jurisdiction of the Caribbean State234. The term jurisdiction refers to the sovereign prerogative enabling the State or its organs to settle disputes and, in this instance, to settle disputes in civil and commercial matters, as the title indicates. This is the power to judge, as confirmed by §3. That paragraph admits the legality of choice of forum clauses for disputes of an international nature; as the case may be, that legality either moves the border that the Caribbean courts' power to judge may not cross closer, thus erasing their jurisdiction, or on the contrary moves that border further away, thus increasing their jurisdiction.

Thus liable to be moved by choice of forum provisions, that border is in principle drawn by §1, which proceeds to perform a twofold determination of the power to judge, that is, ratione personae and ratione loci.

117. Caribbean judges are authorised to exercise the power to judge in relation to any person, whether or not a Caribbean national. This settles an issue concerning the situation of foreigners; §2 then goes on to further specify that solution. By neutralising the opposition between citizens and foreigners, the text begins by providing a foundation for universal jurisdiction in relation to persons.

118. But that jurisdiction is restricted in space: the dispute to be settled must “occur in Caribbean territory”. The solution is realistic. The territory is precisely the space in which the authority of the State enjoys the monopoly of compulsory enforcement. In exchange for the relinquishment of private justice and of the individual use of brute force, the modern State has undertaken to ensure public justice and to guarantee its effectiveness, through organised constraint if need be; thus, among sovereign prerogatives, the power to judge and the power of constraint are associated. All in all, by requiring a territorial connection, Article 6 indicates that, except in the case of choice of forum, a lawsuit escapes Caribbean jurisdiction when none of its elements locates the dispute in Caribbean territory, since in that case not only does the quarrel not disturb the course of Caribbean social life, but the decision handed down would not be able to benefit from the action of the Caribbean enforcement organs.

119. However, a dispute occurring in the territory will not necessarily be settled by the Caribbean courts. By defining the scope of jurisdiction, the territorial connection makes it possible to submit both domestic and international disputes to Caribbean judges. The former are not exposed to any competing jurisdiction and must be settled by the Caribbean courts. The latter, on the other hand, arise from situations that may develop in contact with several legal orders, each of which is endowed with a judicial and coercive system which is able to resolve them; consequently, such international disputes are exposed to competition between jurisdictions. This puts the Caribbean in a position where it must determine what share of international litigation it judges advisable to entrust to its own courts and what share may be left to foreign courts without jeopardizing the interests of the parties or the civil peace in the life of the societies which it controls. Thus, §1 warns that the jurisdiction to be exercised by the Caribbean courts shall be implemented according to the system of international jurisdiction “established by this law and by the international treaties and agreements to which the Caribbean is party”. It follows that in practice an international dispute having a territorial connection with the Caribbean will not (except in the event of a choice of forum) fall under Caribbean jurisdiction unless legal or contractual grounds to that effect can be verified.

120. Universal jurisdiction is thus reduced by the interlocking effect of territorial connection and of the system of international jurisdiction. §2 guarantees that litigants shall not come up against any restriction on account of their foreign status; those who are not Caribbean nationals will have access to Caribbean jurisdiction on the same terms as Caribbean citizens and will therefore be entitled to effective judicial protection on an equal footing. Equality of treatment between nationals and foreigners obviously condemns the old cautio judicatum solvi which, in some States, may have been required in one or another form of foreigners alone, suspected as such of being inclined to initiate reckless lawsuits and later evading the payment of the related costs by retreating to their country235; in the era of globalisation, such a portrayal of foreign litigants is anachronistic, to say the least. In order to highlight the value of such equality of treatment and to place it under the aegis of the principle of non-discrimination, as reaffirmed by human rights conventions, persons having no domicile or residence in the Caribbean are also mentioned; their access to justice shall not be hindered, any more than that of foreigners.

§2 does not specify whether this implies that any litigant, even if a non-domiciled, non-resident foreigner, is called upon to receive “legal aid” if impecunious. It is conceivable that national solidarity would support only litigants who reside in the territory or are domiciled there, inasmuch as they alone contribute to national prosperity and to the funding of public services. Since the text is silent on this point, each State adopting the model law may choose the terms on which legal aid may be granted, within the limits set by the principle of non-discrimination and the right to effective judicial protection.

121. §3 imposes on universal jurisdiction, thus circumscribed, an additional and occasional limitation resulting from private intent. It does in fact admit the legality of choice of forum clauses for disputes of an international nature236. In so doing, it does not make any distinction according to whether the clause, by designating a foreign court, restricts Caribbean jurisdiction, or, by designating a Caribbean one, rather extends it. Nevertheless, it does not follow that the model law raises private choices or the autonomy of private individuals to the rank of principle and reduces the jurisdictional grounds set forth by it or by treaty law to a subsidiary level. Article 10 will show, for instance, that although arising from the law, the exclusive jurisdiction referred to in Article 9 or the jurisdiction in matters of personal and family law dealt with in Article 13 thwarts choice of jurisdiction clauses. In other words, the autonomy of private individuals is sanctioned only when the subject matter of the dispute is such that the coming to terms of the private interests is not under the control of publica utilitas, i.e. the public interest. To each his sphere. The autonomy of the parties may prevail only when expressed in areas in which they may freely dispose of their interests.

122. §3 does not mention that restriction; it remains on a general plane. Neither does it indicate the conditions to which the validity of a choice of forum agreement is subject; those that are specific to jurisdiction clauses are found in Articles 10 and 12, whereas the others pertain to the ordinary rules governing agreements. On the contrary, §3 clearly marks that the legality it proclaims concerns only provisions referring to a dispute of an international nature. And the importance of such a specification is highlighted somewhat insistently by a reference to the definition of internationality in Article 1, §2237 which must, therefore, be referred to. The model law obviously does not presume to rule on the legality or illegality, whether absolute or relative, of voluntary extensions of the scope of jurisdiction in domestic law; such a matter pertains to the private judicial law of each State and comes up within the framework of a homogeneous judicial organisation, not in the event of a plurality of jurisdictional orders. A jurisdictional clause that has international disputes in mind aims especially at preventing the disadvantages of that plurality and of the diversity of the judicial offers resulting from it; foremost among these is the devastating risk of providing the quickest party with the judge most convenient for it from a procedural viewpoint and most favourable as regards the substance of the case. Those are in fact dangers specific to private international relationships as defined in Article 1, §1.

123. Thus, for international disputes, Article 6 sets up a system acknowledging the universal jurisdiction of the Caribbean, with no discrimination between persons, circumscribed by the requirement of a territorial connection and exercised according to the legal and treaty-based rules of international jurisdiction, subject to choice of forum agreements in matters where the parties may freely dispose of their interests. The following two provisions impose other limitations of different origin on Caribbean jurisdiction.


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