Jurisdiction, Standing and Choice of Law

The idea that the parties to a contract can choose any forum and any jurisdiction's law is a very common misconception. Before a court can hear a case, it must have two things: 1) Jurisdiction and 2) Standing. Jurisdiction means that the court has the legal right to impose its judgment on the defendant. In other words, it has both jurisdiction over the person of the defendant and over the subject matter of the dispute. Before a court will have jurisdiction, there must normally be some connection between the defendant and the geographical area covered by the court's authority. If the suit is a contract dispute, jurisdiction might be established if the defendant signed the contract within the court's area, or if a portion of the business to be conducted under the contract was conducted within the court's geographical area.

Standing means that the plaintiff has the right to bring suit in a particular court. Standing often involves the existence of a statute, which says who has a right to bring a particular type of suit, and in what court such a lawsuit can be filed. Their may also be constitutional standing requirements. In the U.S. the constitution requires that their be an actual controversy, and that the plaintiff is a person actually injured in the controversy. In other words, a person cannot sue simply because they dislike the law. If either jurisdiction or standing are absent, then a court cannot act.

Likewise, there must be some rational for the choice of law. There must be a connection between the contract and the law to be applied. The parties cannot pick the law of a jurisdiction, which does not have any connection to the contract. If the contract will be carried out in Japan and China, the law of either country might be a possible choice, but the parties could not pick the law of Poland to govern the contract.

Finally, the choice of law will have no relevance in a criminal action. Again if the contract is being performed in Japan and China, and the contract picks the law of China, this does not mean that an act which is criminal in Japan will be overlooked, because it is not criminal in China. Likewise, even if the Japanese court in not considering a criminal prosecution, the court may decide to apply its own law, if it deems the contract to be an illegal contract in Japan, or if it believes that application of Chinese law will violate Japanese public policy.

The point is that there is often much less choice involved in the choice of law and forum than students often believe from reading their textbook.

		January 19, 2005 *Jurisdiction, Standing and Choice of Law*
	The idea that the parties to a contract can choose any forum and any jurisdiction's law is a very common misconception. Before a court can hear a case, it must have two things: 1) Jurisdiction and 2) Standing. Jurisdiction means that the court has the legal right to impose its judgment on the defendant. In other words, it has both jurisdiction over the person of the defendant and over the subject matter of the dispute. Before a court will have jurisdiction, there must normally be some connection between the defendant and the geographical area covered by the court's authority. If the suit is a contract dispute, jurisdiction might be established if the defendant signed the contract within the court's area, or if a portion of the business to be conducted under the contract was conducted within the court's geographical area. Standing means that the plaintiff has the right to bring suit in a particular court. Standing often involves the existence of a statute, which says who has a right to bring a particular type of suit, and in what court such a lawsuit can be filed. Their may also be constitutional standing requirements. In the U.S. the constitution requires that their be an actual controversy, and that the plaintiff is a person actually injured in the controversy. In other words, a person cannot sue simply because they dislike the law. If either jurisdiction or standing are absent, then a court cannot act. Likewise, there must be some rational for the choice of law. There must be a connection between the contract and the law to be applied. The parties cannot pick the law of a jurisdiction, which does not have any connection to the contract. If the contract will be carried out in Japan and China, the law of either country might be a possible choice, but the parties could not pick the law of Poland to govern the contract. Finally, the choice of law will have no relevance in a criminal action. Again if the contract is being performed in Japan and China, and the contract picks the law of China, this does not mean that an act which is criminal in Japan will be overlooked, because it is not criminal in China. Likewise, even if the Japanese court in not considering a criminal prosecution, the court may decide to apply its own law, if it deems the contract to be an illegal contract in Japan, or if it believes that application of Chinese law will violate Japanese public policy. The point is that there is often much less choice involved in the choice of law and forum than students often believe from reading their textbook.