B.A.LL.B.(HONS.

) 5 YEAR COURSE SEVENTH SEMESTER 2023-24

PRIVATE INTERNATIONAL LAW : Code No 1763 (2023-24) 1

Paper Fifth

Prof A.K.PAUL, M.Phil ( Mgt), M.B.A, M.Com, LL.B (CAL), LL.M, C.A.I.I.B, A.I.B Part 1(LONDON),

cert. Co-operation/Industrial Finance/ Rural Banking

Assistant Professor of Law , B.S.Anangpuria Institute Of Law , Faridabad

UNIT - 1

MEANING:

Private International Law can be described as a body of rules voluntarily chosen by a state and forming
part of its Municipal Law for the purpose of deciding :

(a) Whether a given case shall be adjudicated Upon by its own domestic laws or by some other system ,
as also

(b)The determination of the crucial factor , Viz whether its courts are competent to exercise Jurisdiction
over a particular case .

DEFINITION :

Private International Law or conflict of Laws is that part of legal Science which deals with a case
involving foreign element due to the existence of separate legal units of different states .A conflict Of
law occurs not because of reason of diversities of laws in different states which they apply to any
particular case involving foreign element but only when each state seeks to subject that case in
accordance with its own strict international laws .

NATURE OF PRIVATE INTERNATIONAL LAW /CONFLICT OF LAW :

Private International Law is not an act of Legislature ,a Satute or a code .It is simply a compendious term
used to describe the rules evolved in a legal system for dealing with cases involving issues having foreign
opic connection. The rules are mostly to be found in decided cases. Few of them are ,however ,found in
enacted legislations and some in international conventions.

SUBJECTMATTER OF PRIVATE INTERNATIONAL LAW / CONFLICT OF LAW :

Private International Law is not a separate branch of law in the same as , say ,the law of contract or
Torts. It is all pervading .It starts up unexpectedly in any court and in the midst of any process . It may
Spring like a mine in a plain Common Law action , in an administrative proceeding ,in equity, or in a
divorce case ,or in a bankruptcy case ,in a shipping case or in a matter of criminal procedure .The most
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trivial action of debt ,the most complex case of equitable claims ,may be suddenly interrupted by the
appearance of a knot to be united only by private international law .

Private International Law is a separate and distinct unit in the English legal system just as much as the
law of tort or of a contract , but it possesses this unity, not because it deals with one particular topic, but
because it is always concerned with one or more of three questions namely :-

 Jurisdiction of the English court ;

 Recognition and enforcement of foreign judgment
 The choice of Law

DIFFERENCE BETWEEN PUBLIC AND PRIVATE INTERNATIONAL LAW :

‘ Public International Law ‘ is different from ‘ Private International Law ‘ which is a law of different
states and which concerns mainly such matters between individuals as fall at the same time under the
jurisdiction of two or more different states .

Rules Of Private International Law have evolved to avoid the conflicts which arise due to conflicting
rules of municipal or state laws of different countries .

Public and private international law differ on many counts.

Firstly, while public law deals primarily with the states and to some extent with the individuals , private
law deals primarily with the individuals of two states (e.g. contracts of sale or service between persons
in different countries ).

Secondly , while rules of private law are part of the internal law of the state concerned , it is not so in
the case of public law .

Thirdly, while public law is applied uniformly to all the stakes , private law is enacted mainly through
legislation enacted by legislatures of different states, public law evolves largely through the consent of
the states by means of customs and treaties.

Private international law deals entirely with the relations of persons living under different legal by ,
when couples left England to be married in Scotland where the marriage laws were less stringent and
question arose whether the validity of marriage should be determined by English Law or by Scottish Law
.The English Courts held that the laws of Scotland should apply .

In some exceptional cases , rules of private international law may become rules of Public international
law when they are incorporated in the international treaties .

STAGES IN PRIVATE INTERNATIONAL LAW :

It is difficult to say in what form private international law existed in ancient India. India had a tries
thriving trade and commerce with countries far and beyond ,across high seas and through the inland
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routes much before Mughal rule in India specially during the Gupta and the Mauryan Empires. Many
suits relating to contracts and trade ,commerce and other matters must have come before Indian
courts. The Indian courts did not decide these matters solely by reference to Indian Law . Based on fairly
developed law and custom of merchants , suits were decided .Law in India was territorial during the
Gupta Empire and Mauryian Empire although usage and custom too had their places sometime
supplementing law and sometime overriding it .

Rules of Muslim law came to be applicable on many matters consequent upon establishment of Mughal
Empire . If both parties were Hindus , Hindu Law was applied and if both parties are Muslims ,Muslim
law was applied . In personal matters , the Personal Law of the parties was applied .The era Of Personal
Law in India thus emerged .

Various communities in India were governed by their personal laws in personal matters during British
period from its very beginning to its end . Inter –community or inter-religions marriages could be under
separate Statute , the Special marriage Acts ,18721923. Thus in the potential areas of conflict of
Communal Laws ,the conflict was avoided. This continues to be the situation even now . In personal
matters laws in India are not territorial but personal. India developed contacts not merely with the
countries of the British Empire but also with other countries during the British period .The rules of Indian
Private International Laws are based on the rules of English Private International Law .Indian Courts
have followed and adhered to English Precedents . In independent India nothing else was perhaps
possible .

After independence it is not at all necessary or logical to ape any country and follow its rules . We are
now in a position to develop the rules of PIL in conformity with the social needs and circumstances of
our society and in consonance with the ideas and notions of World justice .

CASE CHOICE OF JURISDICTIONS:

Meaning :

Jurisdiction refers to the power of a state to affect persons ,property and circumstances within its
territory ( its land ,its national airspace and its internal and territorial water ). It may be exercised
through Legislative ,Executive ,or Judicial actions .International Law particularly addresses questions of
criminal Law and essentially leaves civil jurisdiction to national control .

State Jurisdiction is the capacity of a state under International Law to prescribe and enforce the rules of
law .It is derived from the state sovereignty and constitutes its vital and central feature. Jurisdiction is
closely related , and stems from the principle of state sovereignty and sovereign equality and
independence of states from non-interference in its internal affairs .International Law sets little or no
limitations on the jurisdiction which a particular state may arrogate to itself. The general principle of
international law regarding State jurisdiction is that , unless Prohibited by international law , a state can
exercise jurisdiction without any limitation .
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Jurisdiction is used in its wide st sense to refer to the question of whether an English court will hear and
determine an issue upon which its decision is sought .There are now four separate sets of rules
determining the jurisdiction of English Courts (i) there are the rules under the European Community
Convention on Jurisdiction and the enforcement of Judgments in civil and commercial Matters (the
Brussels Convention ) (ii) Modified Conven tion ( Of Brussels Convention ) (iii) Rules Under the EC /EFTA
convention ( the Lugano Convention ) (iv) Traditional Rules

BASIS OF JURISDICTION :

There are some 198 states on the planet .International Law determines which state has jurisdiction in
which respects. In this regard four fundamental objectives should be borne in mind. The first is to
establish limits of jurisdiction that protects the independence and sovereign equality of states by
balancing each state’s interest in exercising jurisdiction to each state’s interest in exercising
jurisdiction to advance its own policies with each states interest in avoiding interference with its policies
resulting from the exercise of jurisdiction by foreign states . The second is to recognize the
interdependence of states by ensuring that effective jurisdiction exists to achieve certain objectives of
states. The third is to harmonize the rights of two or more states when they have concurrent jurisdiction
,which is when each of them has jurisdiction over the same matter .The fourth is to protect individuals
from unreasonable exercise of jurisdiction either by single states or by two or more states seeking to
impose conflicting or compounding obligation on the same matter .

It is unclear whether a state may exercise jurisdiction only where there is recognized basis for its
exercise or as asserted in case of S.S.LOTUS, in the absence of Prohibition on its exercise . Whatever the
identifying conceptual approach a state may be able to identify a sufficient nexus between itself and
object of its assertion of jurisdiction . In this regard ,various bases of Legislative Jurisdiction have been
identified particularly in the context of criminal Law .These are alternatives a state may have more than
one basis for exercise of jurisdiction in matter and more than one state may have basis for exercise of
jurisdiction over the same matter .

LIMITATIONS LIKE EFFECTIVENESS PRINCIPLE :

The principle of effectiveness is closely related to the development of emerging EU Law on remedies . Its
instrumental use has enabled the EU courts to restrict the principle of national procedural autonomy
when this was convenient in order to ensure the accomplishment of the aims set by EU competition law
enforcement and to establish EU-granted remedies ,the most notable one being the right to claim
competition law damages .The principle of effectiveness may also influence the design of injunctive
relief by the European commission which should be adequate to ensure not only that the results of the
violation of competition Law are reversed ,but also that there is no risk that the aims of competition Law
will be jeopardized in the future ( general deterrence ,specific deterrence and prophylactic /preventive
aims ). Left unbound , the principle of effectiveness may offer the opportunity to Competition
Authorities to expand their remedial discretion and to redesign market processes and outcomes in
accordance with the dominant interpretation of their statutory objectives. The point made is that
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,whatever one thinks of the appropriateness of an expansive view of remedial discretion which is not
,in our view , supported by the restrictive interpretation of the principle of effectiveness in E U Law ,
remedial discretion is naturally limited by the specific function exercised by the remedial process chosen
or more contentiously imposed by the nature of the dispute. Draw on Fuller’s account of the existence5
of various forms of social ordering , each of them emerging in specific circumstances / context and
having its own principles and limitations , it offers some reflections on the possible limits that the
essence of each idea type of social ordering sets to the expansive interpretative potential of the
principle of remedial effectiveness . The polycentric nature of Competition Law disputes calls for
flexibility in the choice of the adequate form of ordering aiming to achieve the objectives set by the
Legislator. This breaks with the classic view of the adjudication model and hints to the prevalence ,in a
significant number of cases with a pronounced polycentric element of what has been called the
““Structural adjudication “model, still distinct the from the model of regulatory governance .It explores
the nature of commitment decisions as an illustration of the difficulties of classification , without a
proper consideration of the functions and respective limits of each form of social ordering .It does this
by examining some recent cases , such as the ongoing Google Saga at the European Commission or the
Sky Scanner judgment of the U K Competition Appeal Tribunal (CAT).

RELEVANT CPC PROVISIONS REGARDING JURISDICTION (SS 15-20,83,84,86) :

The code of Civil Procedure ,1908

Part 1 Suits in General

Jurisdiction of the courts and Res Judicata ( A thing adjudicated is received as the truth )

Place of suing

Section 15 : Court in which suits to be instituted

Every suit shall be instituted in the court of the lowest grade competent to try it .

Section 16 : Suits to be instituted where subject –matter situate

Suits shall be instituted in the court within the local limits of whose jurisdiction the

Property is situate

Section 17 : Suits for immovable property situate within jurisdiction of different courts

Where a suit is to obtain relief respecting , or compensation for wrong to ,immovable

Property situate within the jurisdiction of different courts , the suit may be instituted in

any court within the local limits of whose jurisdiction any portion of the property is
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situate .

Section 18: Place of institution of suit where local limits of jurisdiction of courts are uncertain

Where it is alleged to be uncertain within the local limits of the jurisdiction of which of

two or more courts any immovable property is situate , any one of those courts may ,if

satisfied that there is ground for the alleged uncertainty ,record a statement to that

effect and thereupon proceed to entertain and dispose of any suit relating to that

property , and its decree in the suit shall have the same effect as if the property were

situate within the local limits of its jurisdiction .

Section 19: Suits for compensation for wrongs to person or movables

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 defendant 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 : Other suits to be instituted where defendants reside or cause of action arises

Section 83: When aliens may sue

Alien enemies residing in India with the permission of the Central Government , and

alien friends , may sue in any court otherwise competent to try the suit , as if they

were citizens of India , but alien enemies residing in India without such permission ,

or residing in a foreign country ,shall not sue in any such court .

Section 84 : When foreign States may sue

A foreign state may sue in any competent court :

Provided that the object of the suit is to enforce a private right vested in the Ruler

Of such State or in any officer of such State in his public capacity .

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Section 86: Suits against foreign Rulers , Ambassadors and Envoys

No foreign State may be sued in any court otherwise competent to try the suit

except with the consent of the Central Government certified in writing by a

Secretary to tal hat Government :

Provided that a person may ,as a tenant of immovable property , sue without

Such consent as aforesaid ( a foreign state ) from whom he holds or claims to

hold the property .

KINDS OF JURISDICTIONS:

There are three main types of judicial jurisdiction : Personal , territorial and subject matter

 Personal Jurisdiction is the authority over a person , regardless of their location .

 Territorial Jurisdiction is the authority confined to a bounded space ,including all those present
therein and events and events which occur there.

4 types of Jurisdiction

Exclusive Jurisdiction --- Only Federal courts have authority to hear , state courts cannot .

Concurrent Jurisdiction --- Federal or State Courts could hear .

Original Jurisdiction --- Court is the first one to hear case

Appellate Jurisdiction --- court can only hear a case on appeal

Article 111, Section of the constitution distributes the federal power between the supreme court’s
appellate and original jurisdiction , providing that the supreme court shall have original jurisdiction
in “all cases affecting Ambassadors , other public Ministers and Consuls” and in cases to which a
state is .

ACTIONS IN PERSONAM:

Action in personam Is an action in which judgment is sought against a person . The word

“in Personam“ derived from Latin word “in personem “ which means against a person . Judicial
Proceeding will be against a person and not against the property of that person . Action in personam
is also called “ Personal action “ .

ACTION IN REM :
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Action in rem is an action to determine title to property and the rights of the parties . Title and
rights are determined not merely among the parties to the law suit but also against all persons at
any time claiming an interest in that property .In rem is a Latin word which means “ in the thing
itself “.

ACTION UNDER ASSUMED DISCRETIONARY JURISDICTION :

Discretionary Jurisdiction is a circumstance where a court has the power to decide whether to hear
a particular case brought before it . An appellate court with discretionary jurisdiction is able to
delegate error correction to lower courts , while it focuses its limited resources on developing case
8Law properly.

INHERENT JURISDICTION SS10 AND 151 OF CPC :

The civil courts had inherent power to issue temporary injunctions in cases which were not covered
by the provisions of 0.39 civil procedure code … A Plaintiff of a suit in another jurisdiction could only
be restrained from proceeding … to the Indore court for staying that suit under SS. 10 and 151 code
of civil procedure .

``Manohar Lal Chopra VS Rai Bahadur Rao Raja Seth Hira Lal

Inherent Powers Of Courts – Temporary Injunction –Restraining party from proceeding with suit in
another state –Legality and propriety of Code Of Civil Procedure , 1908( V of 1908 ), SS94 (c) 151 :
0,39 r.1

CHOICE OF LAW :

Allocation Of Juridical Category to the foreign element case

If there are foreign elements to the case ,the forum court may be obliged i.e allocate the factual
basis of the case to its relevant legal classes and …of law rules to decide the Lex Causae i.e which
Law is is to be applied to each class … immovavles by definition , do not move and so the
identification of the Lex Situs will…

Choice of Law rules

Courts faced with a choice of Law issue have a two –stage process :

1. The Court will apply the Law of the forum ( Lex fori ) to all procedural matters ( including , self
evidently, the choice of Law rules ); and

2. It courts the factors that connect or link the legal issues to the laws of potentially relevant states
and applies the laws that have the greatest connection , e.g the law of nationality (Lex Pa triae) or
domicile (Lex domicilii) will define legal status and capacity ,the Law of the state in which land is
situated ( Lex Situs )will be applied to determine all questions of title , the law of the place where a
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transaction physically takes place or the occurrence that gave rise to the litigation ( Lex loci actus
)will often be the controlling Law selected when the matter is substantive , but the proper law has
become a more common choice .

CONNECTING FACTOR :

Lex fori to determine --

Lex Fori ( i.e. the law of the whole country / law of forum) Lex fori theory : Lex fori (Latin ,for the
law of a forum), refer to laws of the jurisdiction in whicha legal action is brought .When a Court
decides that it should by reason of the principles of conflict of law , resolve a given legal dispute by

reference to the laws of another jurisdiction .The lex causae the lex fori still govern

procedural matters .

The public policy of territorial sovereignity was always the principal consideration. Hence , the
forum court always claimed their right to apply their laws to determine whether any law suit
initiated in their jurisdiction allowed a remedy .,

Savigny , a proponent of the theory of Lex fori , was of the view that delictual liability was either
to criminal liability ,or else closely connected with the fundamental principles of public policy
applicable in the country of forum and therefore it should be governed entirely by Lex fori.

Selection Of Lex Causae through connecting factor ----

In conflict of laws , the choice of law rules for the tort are intended to select the Lex causae ( the
law which govern the dispute ) by which to determine the nature and scope of the judicial remedy
to claim damages for loss or damage suffered .

Procedure is governed by Lex fori, matters of substance are governed by the law to which the court
is directed by its choice of law rule (Lex causae).

Domicile is what is termed in International Private Law as the “ Connecting factor “or link between a
person and the legal system or rules that will apply to him in specific contexts such as the validity of
a marriage , matrimonial causes , legitimacy , succession and taxation .Connecting factors are facts
which tend to connect a transaction or occurrence with a particular law or jurisdiction .The following
are the examples of connecting factors :

1.Domicile , residence , nationality or place of incorporation of the parties

2. The place of conclusion or performance of the contract

3.The place where the tort or delict was committed

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4.The flag or country of registry of the ship

5.The ship owner’s base of operations .

Connecting factors are taken into consideration and weighed by courts and arbitrators , in
determining the proper law to apply in deciding the case or dispute .

APPLICATION OF LEX CAUSAE –THREE MEANINGS OF LEX CAUSAE :

Lex causae which is the law , the forum to resolve the particular case .

Lex Causae which is the Law the forum to resolve the particular case .It plays an important role in
sovereign powers of any government is to enact laws and to define the extent of their application .

(i) Lex causae is a convenient shorthand expression denoting the law ( usually but not necessarily
foreign) which governs the question.

(ii) Lex Causae ( Latin for Law of the cause ) , in conflict of laws .

(iii) Law chosen by the forum court from the relevant legal systems when it judges an international
or interjurisdictional case .

RENVOI ( PARTIAL AND TOTAL ):

Renvoi ( from the French meaning “send back “or “to return unopened “ )is a result of the choice of
law rules and it may be applied whenever a forum court is directed to consider the law of another
state.

Renvoi . A doctrine regarding choice of law in a case with a foreign element where the law of more
than one jurisdiction may be applicable .The question raised by this doctrine is whether , in applying
the law of a particular jurisdiction , the court must also apply the private international law of that
jurisdiction (governing choice of law ),even if this means that the rules applicable state that the case
must be decided by reference to the law of some other country .

Single or Partial renvoi :

Where the Court Of A accepts the renvoi and applies the domestic law of A . The English courts do
not apply single renvoi.

Double or Total renvoi :

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Where the court of A applies the law that the court of B would apply if the matter came before it
(which depends on whether the court of B , in turn , applies the doctrine of renvoi and will accept a
renvoi.) The English courts have applied total renvoi in relation to some issues, for example ,
succession , but not others ( Such as contract and tort.)

CRITICAL ANALYSIS OF RENVOI –INDIAN POSITION :

1 .An Englishman who is domiciled in Italy makes a contract there, for the breach of which a suit is
brought in India. The defence is lack of capacity . It may also be assumed that in English Law
capacity is governed by the Lex domicilii, in Italian Law by the Lex patriae ( Nationality) and in
Indian Law by Lex Loci contractus. According to West lake and Von Bar the law Of India , being the
law of forum, will apply , though Indian Law has no connection with the contract except that the suit
is brought in India .

2. Take another example : A suit is brought , in India for the execution of French- man’s
testamentary trust of immovable property situated in New York . According to the law of the forum

the Lex Situs governs the matter but according to the law of Germany , the law of nationality of the
testator governs the matter under the above theories the law of India will determine the case .

3.For example , two Indians domiciled in New York enter into a contract in Italy . For the breach of
this contract a suit is brought in a New York Court .The defence is lack of Capacity which of the three
laws , Indian ,NewYorkian or Italian should apply ? Suppose that renvoi is not accepted . It may
happen that the New York court may apply the Italian Law as the Lex Loci contractus. The Indian
court may apply the law of New york as domicilii and the Italian court , the law of India , as the Lex
patrie. Now assume that these countries accept the foreign court theory . In such a case the New
York court would refer the matter to the entire law of Italy ,it being the Lex loci contractus and
would find that the conflict of laws rule of Italy directs it to apply the Indian Law , the Lex patrie .
The New york court may thus ultimately apply the Indian law .Now suppose the matter is agitated
before an Indian court .The Indian Judge would refer the matter to the law of New York , being the
law of domicile , and there being directed to apply the Lex Loci contractus , would apply the Italian
Law .Now suppose , the suit is brought in an Italian court .The Italian judge applying the whole of
Indian Law would find that it is directed to apply the Law Of New York , the Lex domicilii. Thus we
find that no uniformity results from the application of the foreign court theory .

UNIT -11

CONCEPT OF DOMICILE :
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Domicile, refers to a place where a person has his /her permanent principal home to which he / she
returns or intended to return .

Domicile is a conception of law employed for the purpose of establishing a connection between an
individual and the legal system of a territory for certain legal purposes .

Element: Is a basic part . A substance that cannot be chemically changed or broken down into other
substances

Intention is an intangible fact .It is an act of mind and like other mental acts , it is difficult to prove .
For the purpose of acquisition of domicile the intention to reside at a place or in a country should
be to reside there permanently or for an unlimited time .The intention must be fixed and not fickled
and must be directed towards one particular place or country .

The Supreme court in Loicis De Raide V.Vol AIR 1991SC1986 said that a person who claim to have
established his domicile of choice must establish that he has formed an intention of making
permanent home in the country of residence and of residing there permanently.

Residence:

As domicile is different from nationality it is also different from residence. It is true that “ domicile
of choice” may be dependent on residence in choice “may be dependent on residence in certain
circumstances but residence and domicile need not necessarily coincide .

Whereas residence simply means living in a particular place , domicile means living there with intent
to make it a fixed and permanent home . A person may be a national of one state , domiciled in
another and residence in a third . Residence may be relevant for certain legal pinposes like the
purpose of jurisdiction , taxation etc .

KINDS OF DOMICILE:

1. Domicile of origin

2. Domicile of Choice

3.Domicile of Dependence

4. Domicile of corporation

Domicile Of origin :
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Every person must have a personal law and accordingly every one must have a domicile. He receives
at birth a domicile of origin .It remains his domicile ,whenever he goes outside unless and until he
acquires a new domicile . The new domicile, acquired subsequently ,i.e generally called a domicile of
choice . The domicile of origin is received by operation of law at birth and for acquisition of a
domicile of choice one of the necessary condition is the intention to remain there permanently .The
domicile of origin is retained and cannot be divested until the acquisition of the domicile of choice
.By leaving his country ,even permanently , one will not , in the eye of law , loose his domicile until
he acquires a new one . This position that the domicile of origin is retained until the acquisition of a
domicile of choice is well established and does not admit of any exception .

Domicile of choice :

The domicile of origin continues until he acquires a domicile of choice in another country . upon
abandonment of a domicile of choice , he may acquire a new domicile of choice ,or his domicile of
choice ,he may acquire a new domicile of choice or his domicile of origin which remained in
abeyance , revives . The burden of proving a change of domicile is on him who asserts it .The
domicile of origin is more tenacious .Its character is more wondering , its hold stronger and less
easily shaken off. The burden of providing that a domicile of origin is abandoned is indeed much
heavier than in the case of a domicile of choice .No domicile of choice can be acquired by entering a
country illegally .The domicile of choice is a combination of residence and intention .Under English
Law ,before the coming into force of the Domicile and Matrimonial proceedings Act 1973 , a minor

lunatic and married Woman has no capacity to acquire a domicile of choice under certain
circumstances ( exception to section 16,Indian succession Act , 1925) .

DOMICILE OF DEPENDENCE ( MARRIED WOMEN’S POSITION IN INDIAN AND ENGLISH LAWS ):

A dependent person was unable to acquire a domicile of choice by his own Act . In general the
domicile of of choice by his own Act . In general the domicile of such a person is the same as , and
will change in accordance with the domicile of the person on whom he is dependent . At common
law , there were three categories of persons that were regarded as being subject to a domicile of
dependence , namely ,(I )married women (ii) children and (iii) the mentally disturbed .

At common law the rationale was that such persons lacked the capacity to acquire a domicile of
choice . The law on the subject was changed by the domicile and Matrimonial proceedings Act 1973
and these changes are :
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(i) Indian Laws :

The Indian Statutory Law does not follow English Law . The Indian Succession Act ,1925, Sections15
& 16 incorporated the general rule : on marriage the wife acquires the domicile of her husband and
during convertures her domicile is the domicile of her husband . Then it is laid down that wife can
acquire her own domicile in the following two cases :

(1) If the wife is living separate under a decree of the court, or

(2) If the husband is undergoing a life sentence.

(ii) English Laws :

In the English Case , one English woman,O’kefee, died intestate in NAPLES . Her domicile of origin
was Eire . She had been living in NAPLES for the last 47 years .The question of succession to her
movable property arose in an English court . Under the English Private International Law the matter
is governed by the law of domicile . Since English law applied the foreign court theory , it
proceeded to decide the matter as ITALIAN court would decide it .On this matter the Italian Court
applies the law of nationality . Since there is no ‘British’ law relating to succession, the court applied
the law of Eire , the law of her domicile of origin .It is true that the father of O’keefe was born Eire
in 1835,but at the age of 22he had left Eire for India and thereafter he lived in India .He died in
calcutta in 1885. O’keefe was born to him in India in 1860. From 1867 to 1890 she lived in various
places in England, France and Spain . In 1890 she settled down in Naples and lived there
continuously till her death – a continuous period of 47 years . Except that in 1878 she had made a
short tour of Eire with her father , she had no other links with Eire . She had never lost her British
nationality , though she had acquired a domicile of choice in Italy .

DOMICILE OF CORPORATION:

Under Private International Law , status, capacity etc of a company are determined by the law of its
domicile . Just as a natural person gets by operation of law , a domicile by birth , ,similarly an
artificial person gets a domicile at the time of its birth .This domicile of origin in the case of a
company is the country where it has been created i.e the place or country of its incorporation .Thus
a company formed under the English Companies Act , 1948, has an English domicile if it is
registered in England and a Scottish domicile , if registered in Scotland .Similarly , a company
incorporated under the Indian Companies Act , 1956 will have an Indian domicile . Conversely , the
Indian and English Private International laws take the view that a company (even if the predominant
shareholders in it are Indians and Englishmen) incorporated under a foreign law such as under the
law of Bangladesh , Pakistan or France , we have a Bangladesh , Pakistan or French domicile
irrespective of the fact as to Bangladesh , Pakistan and France.

CONCEPT OF STATUS:
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Under Private international law , status, capacity etc of a company are determined by the law of its
domicile just as a natural person gets , by operation of law , a domicile b y birth , similarly an
artificial person gets a domicile at the time of its birth .

Just as to determine the status , capacity etc of a natural person , his connection with a particular
system of law has to be known similarly to determine status , capacity , rights , liabilities and
obligations of an artificial person , it is necessary to know its connection with a particular system of
law .

INCIDENTS OF STATUS :

The incidence of tax depends on the residential status of the assesse Sec 5 specifies the income to
be included in the total income of a person when such person is “ resident “ort “ Not ordinarily
resident “or “Non resident “ .

a. Resident (i) Stay in India for a year is 182 days or more or

(ii)Stay in India for immediately 4 preceding years in 365 days or more and 60 days or

More in the relevant financial year

b. Resident not ordinarily resident

Resident ordinarily resident (ROR) if

(i)resident in at least 2 out of 10 years immediately previous years .

(ii) Stayed in India for at least 730 days in 7 immediately preceding years

If any individual fails to satisfy even one of the above conditions, he would be

Resident Not Ordinarily Resident ( RNOR)

c. NON-Resident (NR)

Neither (a) nor (b)

Taxability : Resident ---Tax in India on global income ( income in India as well as income earned

Outside India )

NR and RNOR--- Tax liability in India restricted to income they earn in India .

Need not pay tax in India on foreign income .May resort to

Double Taxation Avoidance Agreement (DTAA)

 16

WHAT LAW GOVERN STATUS :

Under Private International Law , Status , capacity . etc of a company are determined by the law of
its domicile . A company formed under the English Companies Act , 1948 , has an English domicile if
it is registered in England . Similarly , a company incorporated under the Indian Companies Act ,
1956 will have an Indian domicile .

Legal Status is the position held by something or someone with regard to law .It is a set of
privileges , obligations , powers or restrictions that a person or thing has which are encompassed in
or declared by legislation .

UNIVERSALITY OF STATUS :

Status is defined as the respect , admiration , and voluntary deference individuals are afforded by
others . Finally , the importance of status was observed across individuals who differed in culture ,
gender , age and personality , supporting the Universality of the status motive Universality. The
International Redcross and Red crescent Movement , in which all Societies have equal status and
share equal responsibilities and duties in helping each other , is worldwide .Analysis of the
fundamental of Universality . The text under the Fundamental Principle of Universality includes the
following elements :

(i) The movement is worldwide

(ii) All societies have equal status in the movement

(iii)All Societies share equal responsibilities and duties

Consequences of the fundamental principle of Universality :

(a)One of the objectives of the movement is to become universal since it is one of the Movement’s
strengths that it has a National Society in almost every country of the world .There are a number of
states which so far do not have a recognized National Society . However , this is to be seen as a

temporary situation : once obstacles preventing Societies of those states to be recognized are lifted
,the movement will become truly global;

(b) Solidarity between National Societies , which is the basis for co-operation between Societies ;

(c) With regard to decision making , all Societies carry one vote at the Federation’s General
Assembly , the council of Delegates and the conference , irrelevant of their size or wealth .
 17

IFRC: The International Federation Of Red Cross and Red Crescent Societies is the World’S largest
humanitarian network and is guided by seven fundamental Principles :

(1)Humanity (2)Impartiality (3)Neutrality (4)Independence (5) Voluntary Service (6)Universality

(7)Unity

CONCEPT OF NATIONALITY:

Nationality is the political status confirmed by the state on an individual or nationality is

membership of a nation or sovereign state , usually determined by the citizenship , but sometimes
by ethnicity or place of residence , or based on their sense of national identity .

The argument in favour of nationality that it is a definite and certain as acquisition or loss of
nationality does not depend merely on the intention of a person might not be quite often , clearly
ascertainable .On the otherhand , the advantage of domicile is that generally , a person has a free
choice to acquire it and therefore he might choose a system of law under which he is to live .
Further in the case of nationality , due to lack of uniformity in law of nationality or for other reasons,
there may be cases of statelessness or cases of double nationality .

UNIT –111

MARRIAGE

FORMAL VALIDITY BY LEX LOCI CELEBRATIONS :

The term ‘formalities’ includes such questions such as whether a civil ceremony or any ceremony at
all is required , the number of necessary witnesses , t he permitted hours during which the marriage
can be celebrated , whether publication of marriage is necessary , and so on .Now as a general
principle , the formal validity of a marriage is determined under the municipal Lex Loci celebrations.
On the date of ceremony ( the principle of Renvoi does not apply unless it will refer to a law that
will validate the marriage ) and the Lex domicilli of either party will be irrelevant and .This rule is
simple and easy to apply . It should be obvious to the parties wishing to marry that they should
comply with the local formalities.

English Private International Law system’s requirement that a marriage may be formally valid by
the principle of Lex Loci celebrations is imperative, which admits no alternative test . In the

continental Europe, however the test is facultative , the requirement is that the marriage should be
formally valid either by the Lex Loci celebrations or by the personal laws of the parties . Under the
French Law a marriage which is solemnized outside France should be formally valid either under the
law of the place where it is celebrated or by the personal law of the parties. The same is the position
 18

under the German Law countries , like Greece and Malta, lay down that compliance with the
personal law is necessary and obligatory , if the parties belong to the orthodox church, in the former
case , and to Roman Catholic Church in the latter case . In Poland and Czech Republic , however if
marriage is formally valid under the personal law of the parties , then the marriage is valid
irrespective of the fact whether it completes with Lex Loci celebrations. In China too, for the
substantive conditions of marriage , the applicable laws relate to the law of the place where the
marriage takes place or the personal nd law of the parties ( or both ). Likewise in Scotland a
marriage which is solemnized outside Scotland should be formally valid under the law of the place
where it is celebrated.

ESSENTIAL VALIDITY USUALLY GOVERNED BY LEX DOMICILI MATRIMONIAL CAUSES :

In every system of law for the validity of marriage the fulfillment of the two conditions is necessary :

(i) parties to marriage must have the capacity to marriage and have agreed to marry each other with
free consent and not under any sort of coercion or force . This is , in Private International law , called
the question of essential or material validity of marriage .

(ii)Parties must have performed necessary ceremonies and rites of marriage , which is , in Private
International law , known as question of formal validity of marriage.

Lex domicilli: The Law in force in country or place where a person is domiciled , or the law of
person’s domicile. For example, A and B, who are domiciled in England , in France . But certain
matrimonial dispute arises which needs to be determined or solved according to the principle of lex
domicilli, then the English law will be applicable rather than French law as England was the place
where both the parties were domiciled.

LAW OF PROPERTY – CHARACTERIZATION:

Whenever a court is called upon in a conflict of laws case to adjudicate any question relating to
ownership , possession or any another right in a property , its first task is to determine whether the
property in question is movable property or immovable property . It is now an accepted principle of
Private International law the only law that can effectively answer this question is the law of the
country where the property is in fact situate .According to Morri s “ Law …i deals in reality with
rights ;and the law of the country where a given tangible thing is in fact located can determine
whether the rights over such things , e.g.,land , or obligations connected with it , or the documents
which embody such rights or obligations , shall be treated as interests in movables or immovables.
Ordinarily , the determination of the question as to whether a particular property is movable or

immovable should present no difficulty . But the difficulties arise because different systems of law
characterize property differently . For instance , title-deeds, fixures, fish in a pond or the key of a
 19

house would appear to everybody to be movables but English Law classifies them as interests in
land .Similarly ,buildings erected for holding an exhibition and which cannot be removed without
losing their identity would appear to everybody as immovables , but in some American states and
Germany their owner is deemed to hold an interest in movables . Thus arises the question : if one
system of law characterizes property as movable , while the other characterizes it as immovable
,which system of law should have the final say ? This is one area of Private International Law where
we have near uniformity . English , Indian and most other private International Law take the view
that the final decision should be left to the law of the country where the property is situate , or to
the lex situs of property . If the lex situs characterizes it as immovable it should be treated as
immovable , and it should be so treated in every country in which any adjudication with respect to
them arises .

In English Private International Law it is well settled that if there is a conflict between the situs and
the lex fori as to whether a particular property is movable or immovable it is the lex situs which
determines the issue .The same seems to be the position in Indian Law .It is because , in the last
point of time situs of property is important , Morris says that ‘lex situs ‘ at the decisive moment
must control .

At the first stage of characterization once the lex situs of property characterizes it as movable or
immovable ,it is possible in the next stage to apply any further distinction of internal law .

TRANSFER OF TANGIBLE MOVABLES :

Transfer of tangible movables or particular assignment of movable means transfers inter vivos, such as
sale , gift , pledge . Transfer of movables is often called particular assignment of movables , as
distinguished from general assignment such as devolution of property on the death of a person i.e
Succession or distribution of assets in bankruptcy .

While there appears to be almost a universal acceptance of the principle that the lex situs governs all or
almost all matters relating to immovables , there is no such acceptance of any one principle relating to
movables, tangibles and intangibles .

The Domicile Theory :This is the oldest theory . The argument has been – the movables have no fixed
situs ; their situs can be shifted at any time by its owner . Therefore , the medieval Italian statutists
propounded the principle of mobila sequuntur personam. This doctrine had wide acceptance not merely
on the continent of Europe but also in England and the United States.

ASSIGNMENT OF INTANGIBLE MOVABLES:

At one time when the maxim mobilia sequuntur personam ruled the day , the lex domicilii was
suggested to be the law applicable to all aspects of assignment of intangible movables . At that time it
 20

was thought that intangibles have no situs. But later on an artificial situs or quasi –situs was ascribed to
the intangible movables for different legal purposes . This led to the propagation of the lex situs theory .
When the theory of proper law of contract came to be established , a theory of proper law of
assignment was propounded by some . In between these theories , the theory of lex loci actus has also
been propounded .Thus, there have been four theories of assignment of intangible movables . They are :
(a)The lex domicilii theory , (b)the lex situs theory , (c) the lex loci actus theory , and (d)the proper law
theory .

The Lex domicilii theory: This theory was propounded in the hey day of the maxim, mobilia sequuntur
personam. It has practically no advocates though at one time it has a galaxy of some prominent
advocates of which Story and Phillimore were at the top . Morris rightly says:” Domicile is a great
importance in family law ,but has little significance in commercial matters , except perhaps as an
element in determining the proper law of the transaction .

The Lex Situs theory :Those who have advocated the application of the Lex situs to the tangible
movables, also advocates of its application to the assignment of intangible movables : West lake and
Dicey were its main Protagonists. An assignment of a movable which cannot be touched , i.e of a debt ,
giving a good title thereto according to the Lex situs of the debt is valid .

The Lex loci actus theory: The Place , where the assignment is made or where the d ocument assigning
the debts is executed , is the governing factor and the assignment is governed by the law of that place.

The proper law theory : The modern theory is the theory of proper law. Cheshire explains the theory
thus : “ The clue is furnished by Foote, when he says that the assignment of a chose in action arising out
of a contract is governed by the proper law of contract.

SUCCESSION TESTATE AND INTESTATE (INVOLUNTARY ASSIGNMENT) RELEVANT PROVISION OF INDIAN

SUCCESSION ACT:

Succession means succeeding or following after . Testate means having made a will. Intestate means if
someone had not made a will at all or dying intestate i.e without leaving a will . Involuntary means done
without conscious control or done against someone’s will.

Succession Testate :

Testamentary succession to movables is also governed by the law of the country where the deceased
was domiciled at the time of his death . If a deceased person domiciled elsewhere dies leaving behind
assets in England , then a grant of probate in England is essential and so far as the administration is
concerned it is governed by the lex fori , but then all questions relating to beneficial succession must be
decided in accordance with the law of the domicile of the deceased . In other words, the executor must
 21

ascertain as to who are the persons entitled to succeed and in what proportion they would take the
property under the law of the domicile.

INTESTATE SUCCESSION :

Intestacy is governed by the Administration of Estates Act 1925 as amended by various statutes . The
statutory rules governing the distribution of an intestate’s estate are based upon the principle that
those who die intestate would, had they made a will, have made provision for certain classes of near
relations and would have preferred some relations to others ,e.g children would be provided for equally.

WILLS –FORMAL AND ESSENTIAL VALIDITY:

Will: A disposition or declaration by which the person making it ( the testator )provides for the
distribution or administration of property after his death . It is always revocable by him .

Formal Validity :

India has not enacted anything like English Statutes of 1861and 1963. Therefore , it seems that the
general rule enacted in S.5(2), succession Act 1925 would apply to formal validity of wills. It appears
that wills executed in India in respect of movables situated in India will be valid if they comply with the
lex fori . An Indian Muslim has power to make an oral will and if a will is made in respect of movables
situated in India then its formal validity will be judged under Muslim Law i.e the personal law of the
deceased ( the law of his nationality ) , even if he died domiciled abroad .But in respect of a will of
foreigners domiciled abroad , the formal validity determined by the Lex domicilii of the testator at the
time of his death – this is because of the provision in S 5(2), Succession Act , 1925.

Material or essential validity:

Under India Private International Law the same rules apply to material validity as they apply to formal
validity . The material validity of the will of a foreigner will be governed by the law of his domicile at the
time of his death .Under Muslim Law ,a Muslim cannot bequeath more than one-third of his property ;if
an Indian Muslim bequeathes one-half of movables situated in India and if the validity of his will comes
into question before an Indian court, then such a bequeath will not be valid , even if the Muslim died
domiciled in England . Similarly, whether an Indian Hindu can bequeath his coparcenary interest will be
determined by Hindu Law if the question of validity of his will in respect of Indian assets comes before
an Indian Court .

Before 1956 , a Hindu could not bequeath his undivided interest in the Mitakashara coparcenary
property , but now under S. 30 Hindu Succession Act , 1956, he can do so .

LEX DOMICILII TO MAKE WILL (MOVABLES GENERALLY):

 22

The Law of the place of person’s domicile. The same consideration apply to the interpretation or
construction of will of movables under Indian Law as they apply under English Law .The succession Act ,
1925, Chapter six contains provisions relating to construction of wills. The cardinal rule of construction
of wills is to give effect to the intention of the testator . In case of ambiguity , the court would apply

that law with which the deceased has most intimate connection , and this can be law of the place where
he made the will or the law of the country where he was domiciled at the time he made the will. If the
testator has indicated some law, then the will, will be interpreted according to that law . The court shall
try to give effect to the intention of the testator so far as it is possible .

LEX SITUS IN CASE OF IMMOVABLES :

The law of the place where property is situated .The general rule is that lands and other immovable are
governed by the lex situs .

The English and Indian Private International Laws follow the principle that succession to immovables is
governed by lex situs. Under English Law the general rule is that all aspects of succession , intestate or
testamentary , are regulated by the lex situs .

When a person dies leaving immovable properties , then it is the lex situs and the lex situs alone which
decides matters relating to capacity to make will, revocation of will, power of disposition , the validity of
disposition and like matters .The law of domicile or nationality of the testator has absolutely nothing to
do with any of these matters .The Wills Act , 1963 giving effect to the Fourth Report of the Private
International Law committee and to the Draft Convention on the Formal Validity Of Wills made at the
Hague in 1961, lays down that will be formally valid if it conforms to the interl nal law in force in the
country where it was executed or in the country where , at the time of its execution or of the testator’s
death , he was domiciled or had his habitual residence ,or in a state of which , at either of those times ,
he was a national .The Act applies to wills executed on or after January 1,1964.

The Indian Private International Law is substantially the same . Section 5(1), Indian Succession Act , 1925
runs as under :

“ Succession to the immovable property in India of a person deceased shall be regulated by the law of
India , wherever such person may have had his domicile at the time of his death .”Provisions relating to
construction of wills are laid down in SS. 74 to 111 , Succession Act ,1925.

UNIT --!V

COMMERCIAL CONTRACTS:

Every commercial activity is ordinarily preceded by a contract .The main problem of Private International
Law is of determining the law governing the contracts .
 23

Commercial contract law and legal definition –A Commercial contract refers to a legally binding
agreement between parties in which they are obligated to do or restrain from doing particular things .
commercial contracts can be written , verbal ,or implied in a formal or an informal manner .As for
examples ,Bills Of Sale , Property Rights , Purchase order , Construction Contract , Products sold ,
Promissory Note , Leases & Mortgages etc .

VALIDITY OF CONTRACT :

Formal Validity ---

Article 9 of the Rome Convention , 1991 deals with formal validity .It deals with the validity of contracts
between person coming from different jurisdiction i.e this Article deals with validity of the contract as
based on the applicable jurisdictions.

By virtue of Article 9(1), where a contract is concluded between persons who are in the same country ,
then it is formally valid if it satisfies either the formal requirements of the governing law ,or the formal
requirements of the law of the country where the contract is concluded . However if the contract is
concluded between persons who are not in the same country then according to Article 9(2) it is formally
valid if it meets the formal requirements of either the governing law or the law of any of the countries
in question .With regard to the traditional English rules a contract would be formally valid if it complied
with the requirements of either the proper law or the lex loci contractus .

The concept of formal validity , however , does not cover the issue of what may be required for an act
to be valid against third parties , that is ,the requirement that a retention of title clause , for example
,must be registered before it can be valid against a third party , will not be treated as an issue of formal
validity under the convention .

Material or essential Validity ----

Article 8 deals with material validity .It has two clauses . Under the Convention material validity means
existence and validity of a contract or its terms [ Article 8(1) ]and existence of consent [Article 8(2)]
specially in cases where silence constitute consent .

Article 8 (1) provides for application of what is called “the putative proper law “ in order to determine
the existence and validity of a contract or any of its terms .Questions such as whether a party had been
induced to enter into a contract by misrepresentation , duress, or undue influence , or whether the
contract was void because of mistake are determined by applying the applicable law of the contract .

Article 8 (2)contains a safeguard in relation to consent

CAPACITY TO CONTRACT :
 24

There is a lack of authority : the three different tests governing capacity to enter into a contract have
been suggested .These are lex domicilii, lex loci contractus and proper law .Some judicial dicta exists in
favour of lex loci too.

The issue of capacity comes into play where one of the parties to the contract lacks power to make or be
bound by a contract . Article 8 (2)of the Rome Convention on the Law applicable to contractual
Obligation , 1980 applicable to the members of the European Union excludes the question of capacity of
corporations altogether from the ambit of the Convention .The convention has a total of 33 articles ,

and a preamble. In relation to the status or legal capacity of natural persons , the exclusion is qualified ,
for it is made subject to Article 11which provides that :

In a contract concluded between persons who are in the same country , a natural person who would
have capacity under the law of that country may invoke his capacity resulting from another laws only if
the other party to the contract was aware of this incapacity at the time of the conclusion of the contract
or was not aware thereof as a result of negligence .

Article 11 only applies to contracts concluded between persons who are in the same country , and has
the effect of allowing a natural person who would have capacity under the law of that country to invoke
his or her incapacity resulting from another law .This is subject to the requirement that , at the time of
the conclusion of the contract , the other party was either aware or, as a result of negligence , unaware
of this incapacity .

Article 11embidies a narrow rule which is aimed at protecting parties who have contracted with a
natural person under an incapacity from being caught unawares by this .In certain circumstances it
protects such a party by imposing a limitation on the right of natural person under incapacity to invoke
his own in capacity .This limitation will apply where certain stringent conditions are fulfilled which are as
follows :

(i)There is a contract which is concluded between persons who are in the same country .

(ii)Contract between an individual or corporation and a natural person .

(iii)The person under an incapacity is a natural person .

Article 11 provides that such natural person can invoke that incapacity against the other party , if the
other party was aware of it at the time of conclusion of the contract or not aware of it by reason of his
own negligence . The burden of proof in this regard lies on the party under incapacity .

The limitation of Article 11 is a narrow one because it only effects the rights of a person under incapacity
when that person seeks to invoke his own incapacity .It does not prevent him from upholding the
contract .
 25

Article 11 has been described by Cheshire & North as an unusual Article because it engrafts a special
rule dealing with one aspect of capacity onto national rules of Private International Law rules .

PROPER LAW IS USUALLY ACCEPTED AS GOVERNING :

The proper Law of the contract means that law which the English or other court is to apply in
determining the obligations under the contract --- It may be that the parties have in terms of their
agreement expressed what law they intend to be governed by , and in that case prima facie their
intention will be effectuated by the court .But in most cases they do not do so .The parties may not have
thought of the matter at all. Then the court has to impute an intention to determine for the parties the

proper law which , as just and reasonable persons , they ought or would have intended if they had
thought about the question when they made the contract …

The term “Proper Law “ of a contract means the law or laws by which the parties to a contract intended ,
or may fairly be presumed to have intended , the contract to be governed ; or in other words, the law or
laws to which the parties intended or may fairly be presumed to have intended , to submit themselves .
The general presumption of English courts in the 17th and 18th centuries was that a plaintiff must intend
to get his action decided according to English Law .For this purpose , it was essential that the plaintiff
must bring his action before the courts of England. By 19th century ,the idea of properlaw was hardly
distinguished from that of proper jurisdiction .

According to Dicey , Morris and Collins , the proper law of the contract , means the law chosen by the
parties , the choice being either expressly made in the contract or to be inferred from the terms and
nature of the contract and the general circumstances of the case , and if no choice could so inferred , by
the law which the contract had the closest and most real connection .

According to Halsbury’s Law Of England , the Proper law of contract is determinable in three ways :-

(i)by express selection by the parties ;

(ii)by inferred selection from the circumstances ; or

(iii) by judicial determination of the system of law with which the transaction has the closest and the
most real connection .

Theories of Proper Law Of contract :

There are two theories regarding the Proper Law of contract :-

(i) Subjective Theory , and

(ii) Objective Theory

 26

Subjective Theory : Subjective theory of proper law of contract was supported by Dicey .According to

him , the proper law of contract is the law which the parties have intended or

presumed to have intended .

Objective theory : Objective theory of proper law of contract was supported by Westlake.According to

him , the proper law of contract is that law which the contract has the “ most real

connection .”

DISCHARGE OF CONTRACT :

The normal mode of discharge of contractual obligation is the performance of the contract .But the
discharge of obligation may also take place by impossibility of performance , by accord and satisfaction ,
by novation or by change in legislation . By whatever manner the discharge of obligations may take
place , it is , as a general rule , governed by the proper law .Therefore , whether or not a contractual
obligation has been extinguished by performance or by impossibility of performance or by accord or
satisfaction is governed exclusively by the proper law of the contract .

In Jacobs v. Credit Lyonnais the question was whether the contract was discharged by impossibility of
performance . The Proper law of the contract was English Law and the lex loci solutionis was French law
.The Court held that the matter is governed by English Law .

Similarly ,in Mount Albert v. Australasian etc . Assurance society Ltd . the contract was governed by the
law of New Zealand while the debt was payable in the state of Victoria. By a Victorian Law the rate of
interest was reduced . It was held that the proper law being that of New Zealand , the obligation was not
discharged under the law of Victoria .It should be noted that lex situs of the debt has nothing to do with
the discharge of the debt which is governed by the proper law of the contract under which it arises .

DOCTRINE OF “ PROPER LAW “ OF CONTRACT :

English Law accepted the doctrine of the proper law of contract as early as 1760 in Robinson v. Bland or
at any rate in 1796 with the decision in Gienar v.Mayer . However , the fact of the matter is that , in the
words of Graveson , “ until the ninetenth century the idea of proper law was hardly distinguished from
that of the proper jurisdiction ;the questions of choice of law and choice of jurisdiction were confused
.In modern English law it is fully established that if parties have expressly chosen the proper law of their
contract , the contract will be governed by that law .

TORTS :
 27

IMPORTANCE OF PRIVATE INTERNATIONAL LAW IN THE FIELD OF TORTS SUCH AS DRUGS

,ENVIRONMENTS, TRANSPORT AND SATELLITE COMMUNICATION:

Importance Of private International Law in the field of torts such as :

(i)Drugs

In Distillers Co.(Bio Chemicals)Ltd . V.Thompson (1971) 1 All ER 694, the plaintiff lodged an action in
England on the ground that he suffered deformity and defective vision on account of sale of a drug by
the defendants , a company incorporated in England through their New South Wales agents on account
of their negligence not to warn the consumer that the drug has harmful effect on the foetus of the
unborn child during the first three months of pregnancy . The drug was purchased and consumed by the
plaintiff’s mother resulting in his deformity and loss of vision .The Privy Council held it is not necessary
or sufficient that every ingredient of the cause of action should have occurred within the jurisdiction ,
that the last ingredient i.e .that which completed the cause of action , should have occurred within

the jurisdiction , what was necessary was that the act or omission on the part of the defendant which
gave the plaintiff his cause of complaint should have been performed within the jurisdiction . In the
present case according to Lord Pearson , the act complained of was the failure to give a warning that the
drug would be harmful if taken during the first three months pregnancy .Since this warning was not
communicated to the consumers in New South Wales where the drug was taken ,the cause of action
arose in New South Wales . Lord Pearson was of the view that the cause of action arose within the
jurisdiction if the act as the part of the defendant which gives the plaintiff his cause of complaint had
occurred within the jurisdiction.

(ii) Environments :

Proper Law or Social Environment Theory :

It has been observed that the place of commission of the tort will be the basis of liability . If the tortious
act is justifiable under law of the place where it was committed such tort is not actionable in England
.However ,after 1945 , many writers and decisions have questioned the appropriateness of having the
place of commission as the exclusive basis of liability . As Lord Denning M.R.has observed , the problem
of choice of law in tort constitutes one of the most vexed questions in Private International Law
.Dr.Morris has advocated , in the several articles , for the development of a proper law of tort , in which
the place of commission need not be a decisive factor of liability . This idea also found support in a
decision of the supreme court of Nova Scotia in Abbot Smith V. Governor of the University of Toranto ,
Prof . Kahnferud had also advocated for the law of social environment . The Second restatement of
conflict of of laws of American Law Institute has also advocated a doctrine of Proper law .

(iii)TRANSPORT :
 28

Boys V. Chaplin ;(1969) 2 All E R 1085

Facts :

The plaintiff, a passenger on a motorcycle was injured through the negligence of the defendant whose
car had hit the motorcycle . The plaintiff and defendant were British soldiers stationed in Malta .

Judgment:

The court modified the test in Phyllips V.Eyre on whether a court can assume jurisdiction over a tort that
occurred in another country by requiring “ double actionability “. Originally the subject matter had to be
actionable in both the foreign and local jurisdiction . However , Boys V. Chaplin stated that it only had to
be “ civilly actionable” under the law of forum ; where the lex fori had a much closer connection with
the dispute ,the lex loci delicti limb of the “ double actionablity” rule could be disapplied .

According to Dicey & Morris, ” a particular issue between the parties ---may be governed by the law of
the country which , in respect to that issue , has the most significant relationship with the occurrence
and the parties .

( iv ) SATELLITE COMMUNICATION :

A communications satellite is an artificial satellite that relays and amplifies radio telecommunications
signals via transponder , it creates a communication channel between a source transmitter and a
receiver at different locations of Earth .

Communications satellites are used for television , telephone , radio , internet and military applications .
There are 2,134 communications satellites in Earth’s orbit , used by both Private and government
organizations .Many are in geostationary orbit 22,200 miles (35,700 Km ) above the equator , so that
the satellite appears stationery at the same point in the sky , so the satellite dish antennas of ground
stations can be aimed permanently at that spot and do not have to move to track it.

The high frequency radio waves used for telecommunications links travel by line of sight and are
obstructed by the curve of the Earth. The Purpose Of communications satellites is to relay the signal
around the curve of the Earth allowing communication between widely separated geographical points
.communication satellites use a wide range of radio and micro wave frequencies. To avoid signal
interference , international organizations have regulations for which frequency ranges o” bands” certain
organizations are allowed to use .The allocation of bands minimizes the risk of signal interference.
 29

The importance of Private International Law in the field of torts such as satellite communication can not
be overemphasized . There was no scope for the development of rules of Private International Law .The
emergence of rules of rules Private International Law becomes imminent .The rules of Private
International Law could not develop before the seventeenth century .

In the beginning of the seventeenth century , although the English Courts could entertain suits having
foreign elements , they were reluctant to entertain them .In Mostyn V. Fabrigos Lord Mansfield also
propounded rules governing a foreign tort .In the words of Cheshire the eighteenth century may be
termed as “ the embryonic Period “ of Private International Law –a period which extended to at least
the middle of the next century .

The nineteenth century can justly take the credit for a period in which rules of Private International Law
start taking shape .The rules of Indian Private International law are based ( sometimes bodily borrowed )
on the Rules of English Private International Law .But now after independence it is not at all necessary
or logical to ape any country and follow its rules .Now we are in a position to develop the rules of Private
International Law in accordance with the social needs and circumstances of our contemporary society .

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENT :

NEED FOR RECOGNIZING FOREIGN JUDGMENT :

Indian Law :

Recognition of Foreign Judgment in India

Legislative Provisions Of Private International Law :

Under Indian Law , execution of decrees , whether foreign or domestic is governed by the
provisions of the Code of Civil Procedure ,1908( CPC) ( as am ended from time to time).

Under the Indian law there are two ways of getting a foreign judgment enforced ;

Firstly by filing an execution petition under section 44A of the CPC ,( in case the conditions
specified therein are fulfilled );

Secondly by filing a suit upon the foreign judgment / decree.

Under Section 44A of the CPC, a decree of any of the superior courts of any reciprocating
territory are executable as a decree passed by the domestic court .Therefore in case the decree
does not pertain to a reciprocating territory or a superior court of the reciprocating territory ,
as notified by the Central Government in the Official Gazette , the decree is not directly
executable in India . In case the decree pertains to a country which is not a reciprocating
 30

territory then a fresh suit will have to be filed in India on the basis of such a decree or judgment
, which may be construed as a cause of action for the said suit . In the fresh suit , the said
decree will be treated as another place of evidence against the defendant .

ENFORCEMENT OF FOREIGN JUDGEMENT :

A foreign judgment ,which is conclusive under section 13 of the Code Of Civil Procedure , can be
enforced in India in the following ways :

1.By instituting a suit on such foreign judgment :

A foreign judgment may be enforced by instituting a suit on such foreign judgment . The
general principle of law is that any decision by a foreign court , tribunal or quasi-judicial
authority is not enforceable in a country unless such decision is embodied in a decree of a court
of the country . In such a suit , the court cannot go into the merit of the original claim and it
shall be conclusive as to any matter thereby directly adjudicated upon between the same
parties .Such a suit must be filed within a period of three years from the date of judgment.

2. Execution Proceedings:

A foreign judgment may also be enforced by proceedings in execution in certain specified cases
mentioned in section 44A of the code .The said section Provides that where a certified copy of a
decree if any of the superior courts of any reciprocating territory has been filed in a District
Court the decree may be executed in India as if it had been passed by the District Court. When
a foreign judgment is sought to be executed under Section 44A, it will be open to the judgment
–debtor to take all objections ,which would have been open to him under section 13 if a suit
had been filed on such judgment. The fact that out of six exceptions there has been due
compliance with some of the exceptions is of no avail. The decree can be executed under
Section 44A only if all the conditions of section 13(a) to (f) are satisfied.

LIMITATIONS IN RECOGNIZING AND ENFORCEMENT ( Ss 13, 14, 44 Of CPC AND S 41 OF INDIAN

EVIDENCE ACT) :

In Law ,the enforcement of foreign Judgments is the recognition and enforcement in one
jurisdiction of judgments rendered in another ( “foreign” ) jurisdiction .Foreign judgments may
be recognized based on bilateral or multilateral treats or multilateral treaties or understandings
or unilaterally without an express international agreement .
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In field of recognition However enforcement is usually limited to civil and commercial matters
.Foreign judgments in public law are rarely enforced although there is no international law
reason against it .

Execution of Foreign decrees in India and the LIMITATION related to the same :

Limitations in the civil procedure code with respect to Execution of foreign judgments in India –

Globalization and inter-connectivity in the world has brought with itself an increase in
transnational transactions between individuals and corporations belonging to different states
Often , it so happens that the court exercising jurisdiction over the case is different from the
one where the relief granted is to be is to be executed . Therefore , an increase in the number
has led to a formidable question on the enforcement and execution of a judgment passed by a
foreign court within the territory of India .

The indian Civil procedure code provides for the execution of decrees and judgments passed by
foreign courts .Although , at the time of adoption of the code no such need to execute foreign
decrees was felt as India was under the domination of the imperialistic state of Britain .

However ,later in the 20th century when the British Colonists started withdrawing from India ,
changes were made to reciprocate the policy contained in the Foreign Judgments ( Reciprocal
Enforcement) Act , 1933 which allowed for the decrees passed in India to be executed in United

Kingdom and vice-versa. Significant changes were brought in the civil procedure code after
India declared itself as a “ Republic “ by severing all its ties with the crown.

THE CODE OF CIVIL PROCEDURE, 1908 :

Section 13: When foreign judgment not conclusive

A foreign judgment Shall be conclusive as to any matter thereby directly adjudicated upon
between the same parties or between parties under whom they or any of them claim litigating
under the same title except ---

(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) it appears on the face of the proceedings to be founded on an incorrect view of international
law or a refusal to recognise the law of [India ] in cases in which such law is applicable .
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(d) where the proceedings in which the judgment was obtained 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]

Section 14 : Presumption as to foreign judgments

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.

Section 44 : Execution of decrees passed by Revenue courts in places to which this code does not
extend

The State Government may, by notification in the Official Gazette , declare that the decrees of any
Revenue Court in any part of India to which the provisions of this Code do not extend , or any class of
such decrees may be executed in the state as if they had been passed by Courts in that state .

INDIAN EVIDENCE ACT , 1872 :

Section 41 : Relevancy of certain judgments in Probate , etc . Jurisdiction

“ A final judgment, order or decree of a court exercising probate ( relating to will), matrimonial ,
admiralty ( war claims) or insolvency jurisdiction which confers upon or takes away from any person any

legal character , or declares any person to be entitled to any such character or any specific thing
absolutely , is relevant “.

It deals with judgments in rem i.e a kind of declaration about t he status of a person (e.g. that he is an
insolvent or married or not ),and is effective against every body whether he was a party to the
proceeding or not . A judgment in personam , on the other hand , means a judgment between the
parties (e.g. in a tort or contract action ),which binds only the parties and is not relevant in any
subsequent case or proceeding .

It further lays down that:

(i) such judgment is conclusive proof that any legal character , which it confers , accrued at the time
when such judgment came into operation ;
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(ii) that any legal character to which it declares any person to be entitled or not , accrued or ceased at
the time mentioned in the judgment ;

(iii) that anything to which it declares a person to be entitled was that person’s property at the time at
which the judgment declares it to be his .

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