Legal Definitions - jurisdictionis fundandae

Jurisdictionis fundandae is a Latin legal phrase that translates to "for the purpose of founding jurisdiction." It refers to the legal actions taken to establish a court's authority or power to hear a particular case, especially when there isn't an obvious or pre-existing connection between the parties or the subject matter and the court's geographical area.

This concept is particularly relevant in Scots law, where specific procedures might be used to create a basis for a Scottish court to hear a dispute involving parties or assets that are primarily located outside Scotland. Essentially, it's about creating a legal link to bring a case within the purview of a specific court.

• Example 1: Foreign Individual with Assets in Scotland

  Imagine a person who lives in Canada owes a significant sum of money to a Scottish business. The Canadian individual has no direct residence or business operations in Scotland, but they own a valuable piece of land in the Scottish Highlands. To pursue the debt in a Scottish court, the Scottish business might initiate a legal process to "arrest" or freeze that piece of land in Scotland. This act of attaching the asset within Scotland serves the purpose of jurisdictionis fundandae, providing the Scottish court with a legal basis to assert its authority over the dispute, even though the debtor is not resident in Scotland.

• Example 2: Foreign Company with Property in Scotland

  Consider a company based in Spain that breaches a contract with a Scottish supplier. The Spanish company has no registered office or primary operations in Scotland but owns a commercial property, such as a warehouse, in Glasgow. To sue the Spanish company in a Scottish court, the Scottish supplier might seek an order to attach or secure the Spanish company's warehouse in Scotland. This action is taken jurisdictionis fundandae – to create a jurisdictional link that allows the Scottish court to hear the case against the foreign company, based on its property located within Scotland.

• Example 3: Dispute Over a Ship in Port

  Suppose two shipping companies, one from Greece and one from Turkey, have a contractual dispute. The Greek company believes the Turkish company owes it money. The Turkish company's cargo ship is currently docked in a Scottish port. The Greek company could apply to a Scottish court to have the Turkish company's ship "arrested" while it is in Scottish waters. This arrestment of the ship, even though the core dispute is between two foreign entities, provides a basis jurisdictionis fundandae for the Scottish court to exercise jurisdiction over the matter, allowing the Greek company to pursue its claim in Scotland.