This document discusses jurisdictional jurisprudence and cyberspace. It begins by defining jurisdiction and explaining how information technology has impacted traditional jurisdictional boundaries. It then examines the approaches taken by courts in the United States and India to determine jurisdiction for disputes arising from online transactions. Specifically, it analyzes different theories of personal jurisdiction that have been developed by US courts to determine when they have authority over non-resident defendants in internet-related cases. The document also briefly outlines the classification of subject matter jurisdiction, personal jurisdiction, and prescriptive jurisdiction in American law.
This document discusses jurisdictional jurisprudence and cyberspace. It begins by defining jurisdiction and explaining how information technology has impacted traditional jurisdictional boundaries. It then examines the approaches taken by courts in the United States and India to determine jurisdiction for disputes arising from online transactions. Specifically, it analyzes different theories of personal jurisdiction that have been developed by US courts to determine when they have authority over non-resident defendants in internet-related cases. The document also briefly outlines the classification of subject matter jurisdiction, personal jurisdiction, and prescriptive jurisdiction in American law.
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This document discusses jurisdictional jurisprudence and cyberspace. It begins by defining jurisdiction and explaining how information technology has impacted traditional jurisdictional boundaries. It then examines the approaches taken by courts in the United States and India to determine jurisdiction for disputes arising from online transactions. Specifically, it analyzes different theories of personal jurisdiction that have been developed by US courts to determine when they have authority over non-resident defendants in internet-related cases. The document also briefly outlines the classification of subject matter jurisdiction, personal jurisdiction, and prescriptive jurisdiction in American law.
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Attribution Non-Commercial (BY-NC)
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Baixe no formato PDF, TXT ou leia online no Scribd
Vol. 4 Number II 58-66,2009 Jurisdictional Jurisprudence and Cyberspace Golak Prasad Sahoo Law School, Banaras Hindu University, Varanasi- 221005, India Abstract The paper deals with Jufisdictional Jurisprudence and cyberspace, in general. In order to ?rotectthe democra.tic rights of citizens in the borderless world, courts allover are strugglingfor coming up wIth a coherent doctrme of personal jurisdiction for the internet transactions. Introduction: In the new millennium, the major coups of the 'Techno-Scientific Culture' have resulted a new pad of 'Information Revolution' which has touched socio-economic organizations and governmental structure of human beings. The chief foci of Information Technology are they defeat the geographical, legal and jurisdictional boundaries of a particular sovereign nation; and it is rightly said 'Netizens and web-sites are nowhere and all over the place'. In this context, the "Information Revolution' has created for itself one of the most debated questions i.e. of jurisdiction. Since jurisdiction is the 'sin qua non' of administration of justice, a judgment or order or decree is passed by the court without having the jurisdiction, such judgment, or order or decree can be said as "coram non-judice" -before a court which has no jurisdiction of the matter or before one who is ndt ajudge, and its invalidity can be set up whenever it is sought to be enforced as a foundation for a right even at the stage of execution or collateral proceeding. The laws r e l ~ ~ i n g to jurisdictional jurisprudence characterisiflg in the terms of the subject matter, territorial aspects, pecuniary and prescribe aspects have been diluted, and do not answer to the emerging issues posed by the cyberspace referring to the standard test laid down in the past nineteenth century doctrine. To meet the ends of justice, a new brand of jurisdictional j urisprudence has been emerged with startling results as there is little or no domestic legislative recognition of the need to evolve a distinct set of legislations for internet jurisdiction. Before appreciating the decisions of the various courts of the United States of America and India, the quintessential question remains;-What is the meaning and the connotations ofthe word 'Jurisdiction'? 'Jurisdiction', according to The Encyclopaedia America "is power or authority. It is usually applied to courts and quasi-judicial bodies describing the scope of their right to act. Jurisdiction in the sense of judicial power, often describes the general authority of a court to hear and determine controversies and to carry its judgement into effect. In this abstract sense it does not relate to particular case, but instead refers to the scope of courts, capacity to act within certain geographical boundaries and in connection with various kinds of legal controversies. In a more limited sense, jurisdiction means the power of a court to make valid and binding determination in particular controversy. This kind of jurisdiction relates solely to the court's authority in terms of the specific subject matter and property which are involved in the case under consideration." Encyclopaedia Britannica defines, ''jurisdiction in general, the exercise oflawful authority, especially by a court or a judge and so that extent or limits with which such authority is exercisable. It has primarily a territorial signification, but where its power are otherwise limited, it is rather a mater of competence and in system of law based on codes this distinction is more clearly evident than it is in English and U.S. law". - 58 - Halsbury's Laws of England clearly acknowledges jurisdiction as, "Where, by reason of any limitation imposed by a statute, charter or commission, a court without jurisdiction to entertain any particular claim or matter, neither the acquiescence nor the express consent of parties can confer jurisdiction upon the court, nor can consent give a court jurisdiction" . The apex court of India observed, "a defect of jurisdiction strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties." The Hon'ble High Court, Bombay held that "the jurisdiction of the court would be ousted, if there was a bar to the maintainability of the suit" . In wider sense the expression jurisdiction does not mean the power to do or order the act impugned but generally the authority of the judicial official to act in the terms of subject matter, the prescriptive matter, the pecuniary and the territorial aspects. A court may be given exclusive jurisdiction in respect of a particular subject mater by the Sovereign, or the constitution or statute, and it may prescribe restrictions/constraints in respect of the pecuniary or the territorial aspects. Therefore, the court need not always have an unfettered and uncircumcised authority to deal with even with a particular subject matter. However,jurisdiction to entertain the suit is different from the point of maintainability of the suit. The court may have jurisdiction to entertain a suit in relation to the grievances made by the plaintiff yet the suit as field may not be maintainable for various reasons. Similarly a suit may be otherwise maintainable, yet the court in which the suit is instituted may not have jurisdiction to entertain the same. Cyberspace andJ urisdiction On the threshold of the twenty first century, the 'knowledge capitalism' is the guiding stars in the spectrum of social, economic and political fields, and by virtue of new inventions and innovations, it drafts history of e-era in realm of post- modernisation. In a country like ours there is a novel saying that, 'Ubi jus ebi remedies'- there is a right and there is a remedy. In the last two decades, the pervading impact of information technology being a transnational character poses a serious threat to the administration of justice. At this juncture a fundamental question crops up which courts would have jurisdiction to adjudicate disputes between the parties transacting on the internet? A widely recognised view which is gaining ground reality is that the existing law of jurisdiction is redundant for the cyber world and an entirely different set of rules is required to govern the jurisdiction over the internet which is free from the shackles of geographical borders. Position in America According to the U.S. constitution, the lawsuits can be brought either in a state or of federal court. Provided that the state in which the court is located must have a long-arm statute which allows the court to assert jurisdiction over non-resident defendant. Although these statutes will differ from state to state, Fifth and Fourteen Amendments of the U.S. Constitution lay down the outer limits for the courts while asserting jurisdiction. This means that before asserting jurisdiction over the non-resident defendant, the court has to comply with the provisions laid down in Fifth and Fourteen Amendments Due process Clouse. Before moving further, it is pertinent that the United States has not codified the law of jurisdiction. Due to this, Courts (mainly Supreme Court) have evolved the various theories to measure the legitimate exercise of judicial power over the parties to the litigation. In view of above, it is necessary to study the history of the development of the American law of jurisdiction. From early times, in United States the law of jurisdiction has been classified as follows;- Subject matter of jurisdiction It is the cause, the object and the thing is dispute. The authority of a court to decide a particular type of case is called subject mater jurisdiction and is set by the federal or state constitution or by the statute ofthe state. Personal jurisdiction Personal jurisdiction is concerned with the power of the court to decide a case between the parties. For a court to exercise jurisdiction, there must be a statutory or Common Law Source of jurisdiction, which does not surpass the limitations imposed by constitutional dues process. Personal - 59- jurisdiction may be ( a) General or (b) Specific; (a) General jurisdiction equates to 'continuous and systematic contacts' with the forums, whether or not the contacts are related to suit. It would allow the forum to assert jurisdiction for any cause of action. Or (b) A specific jurisdiction may arise from even a few contacts with the forum related to the suit. It would permit the forum to assert jurisdiction only to adjudiCation a dispute to which the contacts are related. Prescriptive jurisdiction PresGriptive jurisdiction is the exercise of state authority to regulate local conduct, transactions and activities. The very first U.S. Restatement, laid down in the 1934, mentioned some simple mechanical rules for choosing what law to apply in case of inter jurisdictional litigation. In such cases the substance of the claim will determine the application of the rule, e.g. in a wrong related to 'torts' the first restatement provided that the law of the place where wrong is committed will be applicable. Thus, the last event necessary to make a wrongdoer liable for the alleged tort would be considered. In absence of clear rules and regulations, the courts in the United States of America have devised new jurisprudence in order to resolve rivalry grievances of the parties in cyber jungle. Prior to the mid- nineties, there were very few decisions by U.S. Courts on competence over the Internet disputes. Since 1995, there has been a true explosion of cyber space litigation. American courts have used various tests to determine whether they have jurisdiction over the Internet disputes. Some courts have simply applied traditional rules while other has tried to devise new tests to accommodate the peculiarities of the medium. (a) Pennoyer Theory The traditional law of personal jurisdiction in the United State is reflected in the landmark decision of the US Supreme Court. In the Year 1877, Penn oyer laid down the fundamental principles that "every state possesses exclusive jurisdiction and Sovereignty over persons and the property within its territory and no state can exercise direct jurisdiction and authority over person and property within its boarder. Due to these laws one state could not infringe the laws of another state because that other state is also a sovereign power". However, off late during 18th and early 19th . centuries, the federalist model of jurisdiction upon which Pennoyer theory was founded no longer reflected political and commercial reality. After the second world wars, there was an exponential growth of industrialization, urbanization, modernisation and 'computerization in the all walks of life. The expansion ofthe United States, international Commerce after the world wars and the increasing ease of travel across the state lines created problems when state could not assert jurisdiction over entities that established connections with the state. The interstate movement of goods and persons compelled the states to provide a way for their citizens to sue non-residents in local court. Unfortunately, Pennoyer Test could not stand the test oftime, as it has the effect of prohibiting the states form exercising personal jurisdiction over persons and things physically located outside of its territorial limits. Due to this, and to keep a pace with the changing needs ofthe society, the state started to enact long arm statutes, which permitted the local courts to exercise personal jurisdiction over non residents-defendants. Provided the exercise of jurisdiction did not violate the 14th Amendment of the US Constitution. (b) Minimum Contact Theory Now States wanted to give its citizens an option to sue non-residents in local courts. The impact if these changes could be seen in a landmark judgment in which the United Supreme Court upheld a Massachusetts Statutes, deeming that non-residents using the roads of Massachusetts consented to be used in that state. After analysing the perspective of natural person, the court held that a state may sue a non-resident foreign corporation provided the corporation has "minimum Contact Test" with the forum state and provided that exercise of jurisdiction does not violate the "principle offair play and justice". This case permits the exercise of jurisdiction in the light of "virtual" presence of defendant within a sate. Furthermore, the minimum contacts principles developed by Supreme Court in International Shoe Co. v. Washington, Office of Unemployment - 60- Compensation and Placement et al. Accordingly principle", the court held that, the e-mail, Web it analysed the distinction between specific and page, and forum message were both directed at general jurisdiction. Historically, personal Arizona and allegedly caused foreseeable harm juris,diction could only satisfy due process ifthe to EDIAS. The defendant, in the instant case foreign defendant was present within the operated a computer Bulletin board system from jurisdiction or consented to jurisdiction. However, their home California. They loaded on their U.S. Supreme Court by this case Cleared the mist . bulletin board images depicting bestiality, oral sex, that was gathered around in 'in rem jurisdiction incest etc. Access to these files was limited to the and personam jurisdiction', by making it clear that members who were given password after they paid there must be certain relationship between non- a membership. Subsequently, an undercover agent residents property and law suit. The factual matrix was accepted as an agent. When the agent of the instant case; A New York Volkswagen dealer downloaded explicit pertaining oral sex, sold a car t6 New York residents. The New York incest, bestiality etc. in Memphis in Tennessee couple relocated to Oklahoma where they met with which violated moral standard laid down in an automobile accident that injured the wife and Teimessee District. The defendant belonging to child. The purchaser filled a suit in Okalahoma the resident of California vehemently objected that under its'long-arm statute claiming defective that-act did not occur in the territorial jurisdiction automobile design". The Supreme Court held that Tennessee rather California. The Sixth Circuit the defendant corporation did not have minimum relying on the "effects test" delivered ajudgment contacts with state of Oklahoma because they that Tennessee court is enough competent to limited their sales, advertisements and business entertain the matter within the New York only. The sole fact that then (d) Purpose/ulAvailment Theory product sold was readily movable in commerce did not subject to the defendants jurisdiction of courts outside the area of where they conducted business. The court held that foresee ability has never been a sufficient benchmark for personal jurisdiction under Due process Clause. (c) Effects Theory When a defendant targets a particular forum, he may be called to answer his or her actions in that forum. The court asserted its jurisdiction on the principle that when the defendant knew that her action would be injurious to the plaintiff, and then she must reasonably anticipate being sued into the court where the injury occurred. The "Effects Principle" is of particular importance in cyber space because conduct in cyber space often has effects in various jurisdictions. A case centred on that an allegation that New Mexico published allegedly defamatory business statements about an Arizona company. The plaintiff was a former distributor of the defendant. The defendant, which has no Arizona presence, sent e-mail to some customers and other known distributors, and posted information relating to the termination of the supplier/distributor relationship, which the plaintiff contended as defamatory on its Web site in the New Mexico. While endorsing the "effects The concept of "purposeful availment" is that person by conducting activities within a state enjoys certain benefits and privileges of that state and with these privileges certain obligation, also arises which bears nexus with the activities within the state which require them person to answer litigations in that state. A principal theory advanced to justify that a non-resident defendant has sufficient minimum contacts with a forum relates to whether or not the defendant has purposefully availed himself or herself of the benefits of doing business in the jurisdiction. Parties who reach out beyond one state and "creates continuing relationships and obligations with the citizens of another state are subject to relations and sanctions in the other states for consequences of their activities. However, the United Courts held that the doctrine of minimum contacts would apply to contracts of electronic nature. The factual matrix of the instant case as- Richard Patterson, located in Texas, entered into an electronic shareware registration agreement with CompuServe that permitted the use by Richard Patterson of the services of CompuServe for the marketing and sale of his Internet navigation product. When CompuServe later marketed and sold its Internet Navigation Software, an Intellectual Property - 61 - dispute arose between Patterson and CompuServe, and CompuServe filled a declaratory suit to clear its name in Ohio. In the first Instance, this suit was on the ground that CompuServe did not have personal jurisdiction to bring this suit. On appeal, this decision was reversed on the' following grounds. a. Patterson had entered into a written albeit electronic contract with CompuServe that expressly provided that it was entered into and governed by Ohio Law. b. Patterson exclusively used CompuServe to advertise market and his product. c. Patterson derived benefits from the marketing relationship with Co.:upuServe, which income flowed through CompuServe in Ohio to Patterson. Thus, the court in Ohio therefore, assumed jurisdiction over the dispute because of the repeated contact (telephone calls and sending mails) that Patterson had with CompuServe, within the territory of Ohio, evidenced by Patterson's repeated efforts at sending mail and software products to CompuServe for distribution. Furthermore, the court held that as the cause of action for the dispute arose in Ohio as it was the result of the exclusive marketing arrangement through CompuServe based in Ohio. Moreover, the Ohio long arm statute allows and Ohio Court to exercise jurisdiction over'a non-resident "transacting business" in the state to the full extent allowed by the due process clause of the fourteenth Amendment to the U.S. constitution. (e) Active and Passive Theory To understand the scope and scale of this theory mentioned above, it is necessary to examine a landmark case i.e. Webber v. Jolly wherein local court is not competent to assert the jurisdiction over the foreign national. The factual matrix of this case runs as "the plaintiff, Eileen Weber, was resident in New Jersey, USA and made inquiries of the. local travel agent about hotel accommodation in Italy. The defendant (Jolly) ran a hotel Chain in Italy (Europe), and had its principal place of business in Valdagno, Italy. Jolly did not conduct any business in New Jersey. However, it did provide photographs of hotel rooms, descriptions of hotel facilities, in formation about number of rooms and telephone numbers on the internet. Ms Weber booked a stay at one of Jolly hotels through the travel agent and was injured during her stay at the hotel. On her return to USA, She sought to. sue the. hotel Chain in a USA court for failure to keep promises. A threshold question was whether the courts had jurisdiction over jolly based on the facts that they advertised on the Internet and that this advertising could be viewed in New Jersey"; The Judge looked at' several before rejecting Miss Weber's claim' for jurisdiction on the grounds that the connections with New Jersey were simply too tenuous to uphold. solidified cornerstones principles are emerged to assert the jurisdictiort in the Internet on the ground of active and passivetransactions. (a) The first category includes' cases where defendants actively do business on the internet. (b) The Second Category deals with the situation where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction in determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the web site. (c) Third category involves passive web sites e.g. sites that merely provide information or advertisement to users. Position in India To formulate whether the jurisdiction of the courts is exclusive or non-exclusive, in the internet setting, one must involve the jurisdictional principles as highlighted in the CPC. Jurisdiction of Civil courts in India-(Sections. 15 to 20) (1) Pecuniary jurisdiction: It limits the power of the court to hear cases up to a pecuniary limit only. As S.6 provides "nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject matter of which exceeds the pecuniary limits of its ordinary jurisdiction." (2) Subject matter jurisdiction: Sections 16 to - 62- 18 deal with suits relating to immovable property. Clauses (a) to (e) of section-16 deal with the following five kinds of suits, viz; (a) 'suits for recovery of immovable property; (b) suits for partition of immovable property; (c) suits for foreclosure, sale or redemption in case of mortgage of or charge upon immovable property; (d) suits for determination of any other right to or interest in immovable property; (e) Suits for torts to iinmovable property. What will happen if the property is situate within the jurisdiction of more than one court? Section 17 of the Code provides for this contingency. It says that where a suit is to obtain a re lief respecting, or damage for torts to, immovable property situate within the jurisdiction of different courts, the suit can be filed in the court within the local limits of whose jurisdiction any portion of the property is situate provided that the suit is within the pecuniary jurisdiction of such court. This provision is intended for the benefit of suitors and to prevent mUltiplicity of suits. A case may, however, arise where it is not possible to say with certainty that the property is situating within the jurisdiction of the one or the other of several courts. In such a case, one of these courts, if it is satisfied that there is such uncertainty, may after recording a statement to that effect proceed to entertain and dispose of the suit. Section 19 of CPC states "Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendants resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the said courts." Section-20 of CPC states "every suit shall be instituted in a court within the local limits of whose jurisdiction- (a) the defendant, or each of the defendants where there are more than one, at the time of commencement of the suit, actually and voluntarily resides, or caries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, as aforesaid acquiesce in such institution; or . ~ .. (c) the cause of action, wholly or in part arise. (Explanation-I. A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause arising at any place where it has subordinate office, at such place.) Cause of Action and Contractual Obligation The expression "cause of action" signifies that bundle of facts or infringement of rights which the petitioner must prove, if traversed, or entitle it to ajudgment in his favour by the court. One can find a better answer to aforesaid plea in relation to cause of action by referringto a decision of the Apex Court in the case of Oil and Natural Gas Commission V. Utpal Kumar Basu and others. It was a case where the petitioner learnt about tenders being invited for a particular project at Hazira in Gujarat from advertisements appearing in the Times of India in circulation in West Bengal by reading it at Calcutta, submitted its offer from Calcutta, made representations and also sent fax messages from Calcutta and received reply thereto at Calcutta. A writ petition was filed before the Calcutta High Court on the plea of part of cause of action having arisen at Calcutta. In view of the aforesaid facts, holding lack of jurisdiction on the part of Calcutta High Court, which it had assumed by passing impugned order, while allowing the appeal, the Supreme Court laid down in the following terms; ' .... merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not in our opinion, constitute facts forming an integral part of the cause of action. So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action.' Where the cause of action arises from contract, and the parties have not effectively - 63 - selected the governing substantive law, the relevant criteria in choice-of-Iaw analysis are (l) the place of contracting, (2) the place of negotiation of the contract, ,(3) the place of performance, (4) the location of the subject IJ;latter of the contract and (5) the location of the p ~ i e s . Criteria of Accepting foreign judgment A foreign judgment is not conclusive in certain circumstances in Indian. In this context, S-13 of the Code of Civil Procedure is relevant and reads; . A foreign judgment shall be conclusive as to any mater thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title exoept- (a) where it has not been pronounced by a court of competent jurisdiction, (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of the international law or a refusal to recognize the law of India in cases in which such law is applicable, (d) where the proceedings in which the judgment was obtained are opposed to Natural justice (e) Where it has been obtained by fraud (t) Where it sustains a claim founded on a breach of any law in force in India. The aforesaid clauses from (a) to (t) underlines under what conditions a foreign judgment shall be taken as conclusive. It was observed by the Supreme Court in Smita Conductors Ltd. V. Euro Alloys Ltd. that a foreign award cannot be recognized or enforced if it is contrary to (1) fundamental policy of Indian law; or (2) the interest of India; or (3) justice or morality. It is obligatory to know that provisions as contained in S. 13 and S.14, CPC would apply when a suit is brought on a foreign award. Under S.14, CPC "the Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such jUdgment was pronounced by a court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction." Also, under S.44A CPC, there is a provision for execution of decrees passed by courts in reciprocating territory. Information Technology and Criminal Procedure Code. (S. 75 and S. 179) One of the interesting provisions of S. 75 of IT Act-2000 which contemplates for offences or contraventions committed outside India. According to this Section, this Act shall apply to an offence or contravention committed outside India by any person if the act or conduct . constituting the offence or contravention involves a computer, computer system or computer network located in India. . Though India is not one of the signatories to the cyber crime convention, but it has adopted principle of universal jurisdiction to cover both the cyber contraventions and cyber offences under the Act. It has been argued that from the point of view of application, it would be extremely difficult to enforce the jurisdiction of Indian Courts on cyber criminals belonging to different nationalities. Moreover, the Extradition Treaties, which India has signed so far, do not cover 'cyber crime' as an extraditable offence. On the same footing S. 179 of Cr. P.C. defines, when an act is an offence by reason of anything which has been done and of a consequence which has ensued, if the thing has been done in one local area and the consequence has ensued in another local area. In this case, the consequence means only such consequence as is a necessary ingredient of the alleged offence. For instance, 'A' is wounded within the local jurisdiction of court 'X' and dies within the local jurisdiction of court 'Y'. The offence of culpable homicide committed against 'A' may be inquired into and tried by court 'X' or Court 'Y'. Section 179 contemplates a situation wherein the accused has done an act, prescribed consequence has followed such act, and that the accused is being tried for the offence as result of both the act and the consequence. Case laws: Position in India In India, there are a large number of cases where Courts have exercised jurisdiction over non- resident defendants. Recently, Justice Sanjay Kishan Kaul in a hotly contested matter on - 64- selected the governing substantive law, the relevant criteria in choice-of-Iaw analysis are (1) the place of contracting, (2) the place of negotiation of the contract,.(3) the place of performance, (4) the location of the subject matter of the contract and (5) the location of the p ~ i e s . Criteria of Accepting foreign judgment A foreign judgment is not conclusive in certain circumstances in Indian. In this context, S-13 of the Code of Civil Procedure is relevant and reads; . A foreign judgment shall be conclusive as to any mater thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title exoept- (a) where it has not been pronounced by a court of competent jurisdiction, (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of the international law or a refusal to recognize the law of India in cases in which such law is applicable, (d) where the proceedings in which the j udgment was obtained are opposed to Natural justice (e) Where it has been obtained by fraud (f) Where it sustains a claim founded on a breach of any law in force in India. The aforesaid clauses from (a) to (f) underlines under what conditions a foreign judgment shall be taken as conclusive. It was observed by the Supreme Court in Smita Conductors Ltd. V. Euro Alloys Ltd. that a foreign award cannot be recognized or enforced if it is contrary to (I) fundamental policy of Indian law; or (2) the interest ofIndia; or (3) justice or morality. It is obligatory to know that provisions as contained in S. 13 and S.14, CPC would apply when a suit is brought on a foreign award. Under S.14, CPC "the Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such jUdgment was pronounced by a court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction. " Also, under S.44ACPC, there is a provision for execution of decrees passed by courts in reciprocating territory. Information Technology and Criminal Procedure Code. (S. 75 and S. 179) One of the interesting provisions of S. 75 ofIT Act-2000 which contemplates for offences or contraventions committed outside India. According to this Section, this Act shall apply to an offence or contravention committed outside India by any person if the act or conduct constituting the offence or contravention involves a computer, computer system or corilputer network located in India. Though India is not one of the signatories to the cyber crime convention, but it has adopted principle of universal jurisdiction to cover both the cyber contraventions and cyber offences under the Act. It has been argued that from the point of view of application, it would be extremely difficult to enforce the jurisdiction of Indian Courts on cyber criminals belonging to different nationalities. Moreover, the Extradition Treaties, which India has signed so far, do not cover 'cyber crime' as an extraditable offence. On the same footing S. 179 of Cr. P.C. defines, when an act is an offence by reason of anything which has been done and of a consequence which has ensued, if the thing has been done in one local area and the consequence has ensued in another local area. In this case, the consequence means only such consequence as is a necessary ingredient of the alleged offence. For instance, 'A' is wounded within the local jurisdiction of court 'X' and dies within the local jurisdiction of court 'Y'. The offence of culpable homicide committed against 'A' may be inquired into and tried by court 'X' or Court 'Y'. Section 179 contemplates a situation wherein the accused has done an act, prescribed consequence has followed such act, and that the accused is being tried for the offence as result of both the act and the consequence. Case laws: Position in India In India, there are a large number of cases where Courts have exercised jurisdiction over non- resident defendants. Recently, Justice Sanjay Kishan Kaul in a hotly contested matter on - 64- jurisdiction examined the entire conspectus of the law in different jurisdictions. The case, India TV (Independent News Service Ltd) Vs. India Broadcast Live LIC & Ors related to the domain name Indiatvlive.com registered and used by the defendants as a domain name for video streaming of Indian television channels. After the commencement of the action in the Delhi High Court, the defendants filed a 'Reverse Domain name Hijacking' action in Arizona against India TV. The court was concerned with two issues, viz, (a) Exercise of jurisdiction over the defendants located in the US, (b) Whether an injunction ought to be granted restraining the defendants from proceeding with the suit filed in the United States? On this issue the Court followed the principles laid down in Modi Entertainment Network and another. In the said case the Hon'ble Supreme Court of India had held as, 'The courts in India like the courts in England are courts of both law and equity. The Principles governing grant of injunction-an equitable relief- by a court will also govern grant of anti-suit injunction which is but a species of injunction. When a court restrains a party to a suit! proceeding before it from instituting or prosecuting a case in another court including a foreign court, it is called anti-suit injunction. It is a common ground that the courts in India h;;tve power to issue anti-suit injunction to a whom it has personal jurisdiction in an appropriate case. This is because courts of equity exercise jurisdiction in personam. However, having regard to the rule of comity, this power will be exercised sparingly because such an injunction though directed against a person, in effect causes interference in the exercise of jurisdiction by another court.' From the above discussion the following principles emerge; (1) In exercising the discretion to grant an anti- suit injunction the court must be satisfied of the following aspects; (a) the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the court. (b) If the injunction is declined, the ends of justice will be defeated and injustice will be perpetuated; and (c) the of comity- respected for the court in which the commencement or continuance of action! proceeding is sought to be restrained-must be borne in mind. (2) In a case where more forums than one are available, the court in exercise ofits discretion to grant anti-suit injunction will examine as to which is the appropriate forum having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings ;which are oppressive or vexatious or in a forum non- convenience. (3) The burden of establishing that the forum of choice is a forum of choice is a forum non- convenience or the proceedings therein are oppressive or vexatious would be on the party so contending to avert and prove the same. In so far as the position in this country is concerned, there is no 'long arm' statute as such which deals with jurisdiction as regards non- resident defendants. Thus, it would have to be seen whether the defendant's activities have a sufficient connection with the forum state (India); whether the cause of action arises out of the defendant's activities within the forum and whether the exercise of jurisdiction would be reasonable. The above review also establishes the manner in which the judiciary in India is pro-active and even in the absence of clear statutory provisions, the attempt is to uniform the law and to strike the right balance rather than alienate India from the rest of the world. Conclusion The Internet operates in an environment which allows infringements to take place with no clear and convenient jurisdiction in which the right- holder can file suits. The challenge to the legal community posed by such an environment is currently being dealt with at the national and international level. There has been an ongoing effort to form new rules that would apply to the online environment. Some very interesting beginnings have been made in the area of adjudication through the internet itself. Domain name disputes are being settled by online arbitration under the Uniform Domain Name Disputes Resolution policy adopted on August 26, - 65 - 1999 by The Internet Corporation for Assigned Names and Numbers (ICANN), which has been a through success. Moreover, the disputes pertaining to the sam,e have also been successfully settled by its Alternative Disputes Resolution (ADR) service providers. The ,Internet is a place where the infringer is neither domiciled nor has his place of business or property within national territory, the right holder has no choice but to enforcy judgment obtained within national territory in a foreign country. At regional 'level, there are proceedings for recognition of foreign judgment, but they are sometimes rather tedious and time consuming. Consequently steps should be taken towards creating an international convention for the recognition of foreign judgments, applicable throughout the world. To conclude, technology reconstructs societies, alters its concern and law is an instrument through which these altered concerns need to be regulated, managed and facilitated. To protect the democratic rights of the citizens in the borderless world, the courts around the world are struggling to come up with a coherent doctrine of personal jurisdiction for the internet transactions. 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