ACTOR SEQUITUR FORUM REI: A THEORITICAL STUDY

The actor sequitur forum rei principle is the primary basis for determining the relative competence of civil courts in countries that adopt civil law systems. In this article, the role of the actor sequitur forum rei will be examined theoretically by analyzing theories related to personal jurisdiction, categorization of jurisdiction, and procedural justice theory. The analysis results indicate that actor sequitur forum rei is founded on the theory of power and is classified as a "connected" jurisdiction with a general nature, as jurisdiction is linked to the defendant's domicile. It enables the defendant to be sued in the forum of their domicile at any time and for any reason. Additionally, according to procedural justice theory, actor sequitur forum rei is shown to provide the defendant with protective aspects.


INTRODUCTION
The concept of the jurisdiction (English: jurisdiction; Latin: ius-dicere, juris-dictio) 1 is closely related to the existence of a set of legal rules and the authority to take action on behalf of the law. 2 This authority includes the power to create, apply, and enforce laws within territorial boundaries. In the study of international relations and politics, the concept of jurisdiction is closely linked to the concept of state sovereignty. 3 In legal studies, particularly in the study of law in Indonesia, the concept of jurisdiction can have various meanings, namely: power, authority, competence, and jurisdictional area, with a gradation of essence between them. For example, the terms power and authority are more commonly used in the study of public law, particularly constitutional law, and administrative law, as one of the instruments that state authorities or public legal entities possess to carry out their functions. 4 Meanwhile, the terms competence and jurisdictional area are more commonly interpreted in the study of procedural law. The term absolute competence specifically refers to the jurisdiction of a court to adjudicate certain types of cases. In contrast, relative competence is the territorial jurisdiction of a court to adjudicate a case based on the presence of a subject or the location of the object of the case. 5 Without a legitimate authority or jurisdiction, the court's law enforcement, through its verdicts, will not receive legitimacy. Personal jurisdiction refers to a court's authority to hear a case based on the legal status of the parties involved, which in Indonesian legal doctrine -as derived from Dutch legal doctrine -is known as relative competence. 6 The concept of court jurisdiction is necessary to determine the appropriate forum in a multi-forum legal system. Hence jurisdiction is a structural concept used to allocate cases, set boundaries, and regulate the relationships between various forums. 7 In the process of enforcing civil law in court, personal jurisdiction becomes a crucial issue in two aspects: (1) in the context of national civil procedural law; and (2) in the context of international civil law if there are foreign elements in the civil legal relationship. In the context of national civil procedural law, personal jurisdiction -or relative competence -is used to determine which first instance court has the authority to adjudicate and decide the case. 8 On the other hand, if there are foreign elements in the civil legal relationship, personal jurisdiction becomes an issue in international civil law and is used to determine which court of which country has jurisdiction to adjudicate and decide the case. 9 Personal jurisdiction is determined by the legal doctrine adopted, international conventions on international civil law that are binding on contracting states, and national civil procedural law regulations in a country.
The principle of actor sequitur forum rei serves as the basis standard for civil law countries to determine the personal jurisdiction of courts in civil cases. This article aims to identify and find the theoretical foundation of the actor sequitur forum rei principle. Therefore, the research questions to be addressed are: (1) What is the theoretical basis of the principle of actor sequitur forum rei the basis of personal jurisdiction of courts?; and (2) how does the theory of justice contribute to providing a foundation for the principle of actor sequitur forum rei?

METHODS
The research conducted to answer the problem statement is doctrinal legal research using a conceptual approach through a literature review. The research was conducted by gathering and documenting secondary data through the exploration of primary legal materials such as regulations or legal instruments relevant to the discussion, in this case, Regulation (EU) No. 1215/2012 on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 10 Principles of 6 In Dutch legal doctrine, the term "relatieve competentie" is used to refer to the authority of a court based on territorial jurisdiction, which is then received as "kompetensi relatif" in Indonesian legal doctrine as "relative competence." In this writing, the terms personal jurisdiction, relative competence, and authority will be used interchangeably, referring to the same meaning. See: Marieke van Hooijdonk dan Peter Eijsvoogel, Litigation in the Netherlands, Wolters Kluwer, The Hague: 2012, p. 19. 7 Scott Dodson, "Jurisdiction and Its Effects", The Georgetown Law Journal, Vol. 105, 2017, p. 621. 8 M. Yahya Harahap, Hukum Acara Perdata: Tentang Gugatan, Persidangan, Penyidikan, Pembuktian dan Putusan Pengadilan, Sinar Grafika, Jakarta: 2005 In international civil law, there are three main issues, namely: (1) which country's court has jurisdiction to hear and decide on a case; (2) which country's law applies to determine the rights and obligations of the parties; and (3)  Transnational Civil Procedure 11 , and Rules of Transnational Civil Procedure 12 ; and secondary legal materials in the form of expert opinions contained in reference books, legal academic journals, and research reports. The data collected was then analyzed using content analysis to sort and link its relevance to the discussion to obtain an answer to the problem statement. Conclusions will be drawn from the results of the analysis to determine which theory underlies actor sequitur forum rei so that the principle is theoretically justified.

DISCUSSION
Relational Theory, Power Theory, and Instrumental Theory.
Relational Theory, Power Theory, and Instrumental Theory In essence, no specific theory can comprehensively explain adjudicatory authority, and it is more likely a combination approach of existing theories. 13 The theories regarding adjudicatory authority have developed from traditional societal relationships to more complex social relationships within the context of a sovereign state.
Three theories have been developed to explain adjudicatory authority: relational theory, power theory, and instrumental theory. 14 The relational theory was developed from feudal traditional societal relationships. According to relational theory, adjudicatory authority arises from the context of the relationship between lords and tenants. In this relationship, the tenant pledges loyalty to the lord, and in return, the lord provides protection and justice to the tenants. 15 When the lords united and formed a hierarchical system led by a king, the monarchy system began to emerge, where state authority gained its justification in power theory to maintain and ensure societal order and security. 16 This power theory is supported by Jean Bodin, Thomas Hobbes, 17 and John Austin. 18 In the next stage, deviating from the social contract developed by Thomas Hobbes, which required the formation of order and security through the people giving authority to the state; 19 John Locke -and likewise, Jeremy Bentham -who held instrumental and utilitarian views, believed that the social contract to create order within society was not built on an agreement between the people and the ruler, but rather on free individuals within the society. These individuals make explicit or 190 Jurnal Bina Mulia Hukum Volume 7, Number 2, March 2023 implicit agreements by forming legislative and executive bodies that exercise state power. 20 The instrumental theory is one of the bases for democratic countries to exercise their power based on the rule of law. However, the two previous theories -relational theory and power theory -still play a role in some aspects.
The problem arising from the three theories of adjudicatory authority is when faced with a case that is connected to more than one legal system. Based on the strictly applied relational theory, if one party has a social, political, and economic relationship with a forum, but the other party has no relationship with that forum at all, can that forum be said to have authority over both parties? In this case, the relational theory will only work if the parties have the same connection to a forum. In other words, a "lord" has the authority to decide only for their own "tenant". 21 Based on this proposition, the relational theory is unable to provide a basis for adjudicatory authority when disputes involve parties of different nationalities (multistate situations).
A similar issue is faced by instrumental theory as well. The instrumental theory, which emphasizes consent, never assumes that individuals make agreements (social contracts) with more than one community; except in the same community, agreements to settle a dispute occur within different courts' jurisdiction. 22 Based on the strict application of instrumental theory, the state court only has the authority to adjudicate parties who are citizens themselves because they are deemed to have made agreements to submit and be bound by the legal system in that country, while with foreigners -because they come from outside the system -instrumental theory considers that there is no such agreement. Instrumental theory, outside the concept of social contracts as a basis, provides a specific basis in the court's jurisdiction based on a choice of court agreement.
The power theory appears more capable of explaining the relationship between a forum and parties with different nationalities or domiciles. Simply put, the power theory only requires that the defendant is within the forum's territory. In contrast, the forum will have jurisdiction over the plaintiff when the plaintiff files a lawsuit through the forum, and thus, the plaintiff is deemed to have voluntarily submitted to the forum's power. 23

The Three Categories of Jurisdiction
These theories form the basis for determining the court's jurisdiction, along with the facts of the existing legal relationship, such as contracts, torts, bankruptcy, marriage, adoption, and custody.
The jurisdiction regime of a civil case can be grouped into three categories: (a) "consensual" jurisdiction; (b) "connected" jurisdiction; and (c) "universal" jurisdiction. 24

a. Consensual Jurisdiction
A court upholds consensual jurisdiction -without considering the fact of any connection between the subject matter of the dispute or the parties involved with a particular forumwhen the parties voluntarily submit themselves to the jurisdiction of the relevant court.
Submission to the jurisdiction of a court is made in two ways: (1) by explicitly agreeing to a forum selection clause (choice of forum); or (2) by an implicit agreement that arises when in a lawsuit, one of the parties (the defendant) does not immediately object to the jurisdiction of the court that is examining the dispute. 26 Although "consensual" jurisdiction is formed based on the agreement of the parties to choose a particular court forum, there are limitations that prevent the parties from agreeing to a forum for certain cases. These limitations can take the form of the type of case (ratione materiae) that is not within the jurisdiction of the selected court but rather the jurisdiction of another court; or a prohibition on choosing a forum based on the principle of exclusive jurisdiction, such as disputes over property rights (ius in rem) over an immovable property falling within the jurisdiction of the court located where the property is situated (forum rei sitae). Similarly, there may be a prohibition on making forum selection agreements to protect weaker parties in imbalanced legal relationships, such as consumer and labor disputes. 27

b. Connected Jurisdiction
Connected jurisdiction is a category of court jurisdiction over a dispute that generally applies in all countries. 28 It is recognized that, in the absence of any barrier that renders jurisdiction invalid, the court will have authority where there is a connection between the court's jurisdictional area and the subject matter or parties (subjects) of the dispute. 29 It should be emphasized that the connection is substantial. A lack of substantial connection may lead to the potential for parallel proceedings with another court, creating uncertainty and inefficiency in resolving the dispute. To avoid parallel proceedings (as the jurisdictional system is based on an open territorial principle), it is necessary to identify the basis for the legitimacy of a Exclusive connected jurisdiction generally applies when the forum state strongly connects to the disputed subject matter. 30 Some types of cases that use exclusive connected jurisdiction include: (i) cases concerning rights in rem over immovable property, which falls under the jurisdiction of the forum where the property is located; (ii) cases concerning the status of a legal entity and the validity of its actions, which fall under the jurisdiction of the forum where the legal entity was established according to the law; (iii) cases related to registration on a public register, which fall under the jurisdiction of the forum where the register is held; and (iv) cases concerning intellectual property rights, which fall under the jurisdiction of the forum where the intellectual property is registered. 31 This jurisdiction is "mandatory" and does not allow disputing parties to agree to choose another forum.
Exclusive connected jurisdiction has been accepted as a universal principle in the Principles of Transnational Civil Procedure, which states that the court where the movable property is located has jurisdiction over cases concerning the status of rights in rem over the property. 32 Therefore, the court's jurisdiction in cases concerning the movable property is not based on the domicile or residence of the defendant but rather on the location of the movable property.
In Indonesia, which still applies dualism in regulating Civil Procedure Law, there are differences in the regulation of court jurisdiction in cases involving the movable property. 33 Article 118 paragraph (3) of the HIR, which applies in Java and Madura, regulates that if the defendant's domicile is known and the case involves movable property, the competent court is the court where the defendant's domicile is located (forum rei). The court where the movable property is located will only have jurisdiction if the defendant's domicile is unknown. Meanwhile, Article 148 paragraph (5) of the RBg, which applies outside Java and Madura, stipulates that the court with jurisdiction in disputes involving immovable property is the court where the immovable property is located (forum rei sitae), regardless of whether the defendant's domicile is known or not. In an effort to renew Indonesia's Civil Procedure Law towards achieving unified regulations, 34 it is necessary to adopt universally applicable principles, including the principle of exclusive jurisdiction of the court where the immovable property is located in the case to be examined relates to the status of the immovable property. 30

2) General or Specific Connected Jurisdiction
General Connected jurisdiction will have the consequence that the forum state will have the authority to examine all cases involving an individual. The place of residence of an individual will be a significant connecting factor determining general jurisdiction so that the court whose jurisdiction covers an individual's place of residence will have the authority to examine all cases related to that individual that place them as a defendant in a case. 35 This general jurisdiction is recognized in Article 4(1)  In a contract, the forum state where the contract is performed will have jurisdiction to adjudicate the case. It is based on the assumption that the place of contract performance is where the delivery of goods occurs or the service is provided. 41 As for claims based on unlawful acts, the forum state where the loss occurs will have jurisdiction over the case. In consumer contracts, between consumers and business actors, and employment contracts, between employees and employers, the parties' positions are not equal, for which protection is provided through the determination of protective connected jurisdiction. The regulation of protective connected jurisdiction has been adopted in Regulation (EU) No. 1215/2012. Protective connected jurisdiction in this regulation is also applied to disputes arising from insurance relationships to protect the insured party. 44 If a consumer wishes to sue a business actor, the consumer can sue in the forum state where the business actor is domiciled or in the forum state where the consumer is domiciled. The forum state where the branch office of the business actor is located is also considered as the domicile of the business actor, while for the consumer to be able to sue in the forum state where the consumer is domiciled, it is required that the business actor has a branch office there or intentionally markets its products within the territory of the forum state where the consumer is domiciled. 45 Jonathan Hill, Op.Cit., p. 52. 44 Regulation (EU) No. 1215/ 2012  1215/2012, which regulates protective connected jurisdiction, is also applied to disputes arising from insurance relationships to protect the insured party. 49

c. Universal Jurisdiction
Traditionally, in public international law, certain crimes allow the perpetrator to be prosecuted in any country's court. This principle of universal jurisdiction applies to crimes such as piracy on the high seas 50 and now also to other types of international crimes, such as war crimes and crimes against humanity. 51 However, it appears that universal jurisdiction has not yet had a significant impact on issues of international civil law, although the concept of universal jurisdiction has been proposed in the preliminary draft of The Hague Conference on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters,52 suggesting that national courts, in certain circumstances, may exercise jurisdiction in civil cases if there is a violation of international law, even if there is no close connection between the case and the forum state. 53 The application of universal jurisdiction provides an opportunity for national courts that do not have factual connections to the case to declare that they have jurisdiction if a violation of international law is unacceptable in the context of civilized nations. In adjudicating civil law, a violation of international law may occur if the competent court has denied justice, such as denying access to justice, discriminatory treatment in the judicial process, intervention in the judicial process, or bias. In such situations, another national court based on universal jurisdiction may declare jurisdiction over the case and have the power to examine and decide it, even if the court has weaker connections to the case than the court that denied justice. 54

Redirection to Procedural Justice Theory
The determination of jurisdiction or authority of a court in a civil case also has an explanation based on the theory of procedural justice. The concept of justice refers to Aristotle's idea, which is divided into two types, namely "distributive justice" and "corrective justice". Distributive justice is 196 Jurnal Bina Mulia Hukum Volume 7, Number 2, March 2023 related to the distribution of outcomes or resources among members of a social group according to their benefits and sacrifices, while corrective justice is related to restoring fairness when injustice occurs. 55 Referring to what was developed by Aristotle, the concept of procedural justice is related to the procedures in which social groups (including governments, private institutions, and families) apply the requirements of corrective and distributive justice to a specific case. 56 In the context of modern states, procedural justice is related to the adjudicative method, where legal norms are applied. 57 Furthermore, if focused on the civil justice system, procedural justice determines the conditions under which corrective justice norms in a case must be applied fairly. 58 In the civil justice system, the adjudicative law enforcement procedure in court is based on the civil procedural law that systematically regulates jurisdiction, the process of pleading and counter-pleading, evidence, verdict, and legal remedies for a higher court. The jurisdiction of the court that complies with the statutory provisions established by the authorities is one of the requirements for obtaining legitimate authority. Without legitimate authority, the entire process has no legal force. Such a view is solely based on the theory of power. On the other hand, procedural justice theory suggests that the process must involve the participation of the litigants in the entire law enforcement process. With such participation, the litigants are bound by the court's verdict and will comply voluntarily. 59 Christopher Peters analogizes the participation of the litigants in the adjudication process in court to the formation of laws by the legislature. In the context of procedural justice theory, the court's personal jurisdiction is a necessary authority that must be accessible to the parties involved to allow them to participate in the adjudication process.
The availability of jurisdiction to the parties enables them to argue their respective positions and strengthen their arguments while proving their case. This, in turn, provides the judge as the adjudicator with sufficient information about the case being adjudicated, allowing the judge to make rational and legally sound decisions to enhance the accuracy of the ruling on the substantive issue being sought. Thus, three aspects of procedural justice are achieved through the participation of parties: first, providing equal opportunities for the parties to express their opinions and prove them 55 J.A. Smith dan W.D. Ross (Eds.), The Works of Aristotle, Vol. V, Oxford University Press, Oxford: 1949, p. 1131b25-1132b20. 56 Lawrence B. Solum, "Procedural Justice", Southern California Law Review, Vol. 78, No. 1, 2004 Christopher J. Peters, "Adjudication as Representation", Columbia Law Review, Vol. 97, No. 2, 1997, p. 347. Actor Sequitur Forum Rei: A Theoritical Study in the adjudicative forum; 61 second, based on the arguments and evidence presented by the parties, the judge will be able to accurately decide on the substance of the issue; and third, with participation and high accuracy in the ruling, the decision gains legitimacy to bind the parties and create obligations for them to comply with it. 62

The Role of Actor Sequitur Forum Rei Principle
The Actor Sequitur Forum Rei principle is the main basis for determining the relative competence of civil court jurisdictions in countries that adopt the civil law system, such as Germany, France, the Netherlands, and Indonesia. This principle uses the domicile or residence of the defendant as a reference to determine the competent court forum to examine and adjudicate the lawsuit. The use of domicile or residence as a reference is based on the legal concept that it signifies where a person (legal subject) is always present to exercise their rights and obligations, even if in reality, they are physically absent from that place. 63 The defendant's presence within a court's jurisdiction is an important factor in determining the court's jurisdiction over the defendant. It also applies to courts in common law countries with different standards or criteria. While courts in civil law countries use domicile or residence as a reference, common law systems apply the doctrine of the defendant's physical presence to determine jurisdiction. Traditionally, courts in England have followed the doctrine that anyone can petition an English court to declare its jurisdiction in an in personam case against a defendant who is physically present in the court's territorial jurisdiction, even if the defendant is just passing through (fleeting the stay) without intending to make that place his or her domicile or residence. 64 The English court will assert jurisdiction as long as the writ of summons is properly served on the defendant. In this case, it is not required that the plaintiff or defendant have any particular connection to the territorial jurisdiction of England as long as the defendant is physically present within that jurisdiction. 65 As a balancing mechanism against the doctrine of physical presence applied by English courts, the defendant is allowed to raise an objection using the doctrine of forum non-conveniens by arguing and proving that: (a) there is another more appropriate forum and justice can be more easily and inexpensively achieved; and (b) pursuing jurisdiction in another forum will not prevent the plaintiff from obtaining the justice that should be obtained if the lawsuit were filed in an United Kingdom's 198 Jurnal Bina Mulia Hukum Volume 7, Number 2, March 2023 court. 66 In its development, the doctrine of forum non-conveniens was reformulated by establishing three questions to test objections based on the doctrine, namely: (a) is there another forum?; (b) is the UK forum or foreign forum more appropriate?; and (c) if UK is not the appropriate forum, are there justice interests that require the plaintiff not to be required to pursue litigation in a foreign forum? 67 In the last two statements, the court must balance various existing factors while applying these criteria that may differ from one case to another. 68 Based on the series of theories that have been proposed, the principle of actor sequitur forum rei finds its basis as personal jurisdiction in civil cases according to the power theory. However, there is some influence on certain aspects based on the relational theory. In the view of the power theory, the actor sequitur forum rei places the presence of the defendant who resides within a country's territory under the power of that country. Through the courts of that country, the plaintiff seeks to have that power exercised over the defendant or their assets. 69 Meanwhile, by filing a lawsuit in the defendant's place of residence, the plaintiff has submitted to the authority of that court. On the other hand, actor sequitur forum rei makes the forum where the defendant resides a jurisdiction that the plaintiff can always use -generally and under any circumstances -and simultaneously, the defendant cannot evade a lawsuit filed in the forum where they reside. 70 The actor sequitur forum rei principle also has a protective aspect for the defendant. The principle requires the plaintiff to "come to" the forum where the defendant resides or is domiciled, so there is a burden that the plaintiff must bear as the initiating party. In contrast, for the defendant, this principle allows them to become more "accustomed" to the forum, meaning they have a better understanding of the laws, traditions, and language that apply in the forum. The costs are lower because the defendant does not have to attend a forum outside their residence or domicile. In terms of jurisdiction categories, actor sequitur forum rei is a "connected" and general jurisdiction category, which means that in all types of cases and at any time, the defendant can always be sued in the forum where they reside or are domiciled, and the defendant cannot argue that the court does not have personal jurisdiction over them.

CLOSING
The actor sequitur forum rei principle serves as the foundation for a court's jurisdiction in civil cases. This principle is based on the theory of power, which focuses on the defendant's presence in Actor Sequitur Forum Rei: A Theoritical Study to the authority of that forum. The theory of power provides a basis, especially when the parties involved are subject to different legal jurisdictions.
The defendant's domicile or place of residence serves as a substantial connection for the principle of actor sequitur forum rei to determine the competent forum. The jurisdiction of this forum falls under the category of connected and general jurisdiction so that in almost all types of civil cases, the defendant can be sued in the court whose jurisdiction includes the defendant's domicile or place of residence. The principle of actor sequitur forum rei also has a basis in the theory of justice, specifically procedural justice, which requires parties to easily access the forum and present their arguments and evidence in the case.
The role of the principle of actor sequitur forum rei as the basis for determining the jurisdiction of a court in civil cases can be maintained because it has a theoretical foundation in both the theory of power and the theory of procedural justice. However, exceptions need to be regulated in certain situations to realize procedural justice. For example, to protect the weaker party in a civil legal relationship, such as the relationship between consumers and businesses or employees and employers, it is necessary to regulate that the court where the weaker party is located has jurisdiction over disputes in that legal relationship. It provides easier access to justice through the judiciary for the weaker party.