Private International Law
U N I T 0 1 Deepathanisha
Assistant professor of law
Overview
• Meaning international law
• Subject matter of private • Theories of private
international law international law
• Unification of private • Theories of
international law characterization
• Evolution of English & • Doctrine of renvoi
Indian private
Nature of Private International Law
• “Private international law is that part of the domestic legal system
which comes into operation whenever the court is confronted with
a dispute that comprises a specific and clear foreign element”
• “The raison d’être of private international law is the existence of a
number of municipal systems of law that differ critically from
each other in the rules by which they regulate the legal relations”
Cheshire, North and Fawcett
• Presence of foreign elements must be real and specific
• Private international law as a subject has a distinct flavour of its
own
• It guides the ascertainment of the legal system applicable to a
case
Private International Law
Or
Conflict Of Laws
• “Name of the subject is rather unfortunate because it is
difficult to conceive of a law that is both international and, at
the same time, private” – WN Hibbert
‘Private’ deals with the legal relations of individuals and not of states
‘International’ deals with conflicts of laws of different nations
• The phrase ‘conflict of laws’ originated from the work of
Ulrich Huber
• Story used the term ‘private international law’ for the first time
in his work ‘Commentaries on the Conflict of Laws’
Scope of Private International Law
In Indian and General Investment v Sri Ramchandra Mardaraja Deo
the court observed
‘the function of private international law is complete when it has chosen the
appropriate system of law’
• Identification of foreign element
Characterization of dispute
• Jurisdiction
Whether the court has jurisdiction to entertain the case?
Whether that court is the competent jurisdiction?
• Choice of law
What is applicable law?
• Enforcement of foreign judgments
whether court is bound to recognize & enforce the laws of another country?
Commonly used phrases
Phrase Meaning
Lex causae Law that governs the dispute
Lex domicilli Law in the place where person is domiciled
Lex fori Law of the forum
Lex loi actus Law of the place where the act was done
Lex situs Law of the place where the property is situated
Lex loci celebrationis Law of the place where marriage is performed
Lex loci contractus Law of the place where the contract was made
Lex loci solutionis Law of the place where contract was to be
performed
Lex patriae Law of the nationality of the person
Lex loci delicti Law of the place where tort or other wrong was
committed
forum non conveniens An inconvenient forum (power to decline
jurisdiction)
Development
• Era of the territorial law
Roman law applied to romans- provincial laws applied to provinces- law of nations
stunted growth- no application of foreign law
• Era of the personal laws
Post- Roman Empire- end of territoriality- 6th to 19th century saw personal laws at
high- people carried their laws with them- development- conflict of personal laws
• Era of feudalism and city-states
Territoriality gained ground- Germany, France, Spain, England.,- city-states
required uniformity in governance- increased trade & commerce- foundations of
pvt int law imminent
• Era of statutists
Increased trade & commerce- 13th century- need to recognize each other’s laws-
revival of Roman law- Bartolus propounded statute theory- dutch jurists called
conflicts with foreign elements as sovereign prerogative
Development (cont.,)
• Modern-era
Savigny- 19th century- rejected statute theory- uniform pvt int law- applicable
law is the place where the dispute belongs to- nationalism influenced pvt int
law- hence personal matters shall be decided by nationality
• English private international law
17th century- Calvin case- Weir’s case- notice of foreign law- foreign element
cases to admiralty court- willingness to enforce foreign judgments- increased
trade & commerce led to accept, apply & enforce foreign law
• Indian private international law
Pre- Mughal India- territorial laws in foreign element cases- British period-
personal laws largely applied- Indian courts at liberty to apply follow own rules
& adopt foreign rules according to our sense of justice, equity & good
conscience
Foreign law
Foreign law includes
• Law in the political sovereign’s territory of the foreign state
• Law in its political sub-division of foreign state
• Law that prevails in the territories of the foreign state
Why do we apply foreign law?
• Comity of nations
• Court’s duty to do justice
• Determination of rights of the parties
• Demand for justice
• Convenience of courts
Unification
• Brussels convention on the unification of rules regarding carriage by
sea
• Warsaw convention on the rules regarding carriage of persons &
goods by air
• 1951- Establishment of the permanent bureau of the Hague
Conference
Rules regarding family law
• 1964- the unification of rules regarding the international sale of
goods
• 1967 convention on the recognition of divorces & legal separation
• Convention on recognition & enforcement of foreign judgments in
civil & commercial matters
• Unification through bilateral and regional conventions & treaties
1. Statute theory
Theories of
2. International theory
private 3. Territorial & acquired theory
international 4. Local law theory
law 5. Theory of justice
Theories
1. Statute theory
• Propounded by Bartolus
• Classified statutes
Statuta personalia (based on domicile)
Statuta realia (territorial)
Statuta mixta (based on where action were done)
• Limitation
How to classify issues?
Different legal systems classify different issues into different
category
Theories (cont.,)
2. International Theory
Friedrich Carl Von Savigny
Every legal relationship has a natural seat in a
local law
Jurists should enable rules to trace that legal
relationship
• Limitation
Assumption of uniformity of laws in all countries
about characterisation of legal relations
Theories (cont.,)
3. Territorial or acquired rights theory
• The main proponent is Dicey
• Courts apply foreign law only to the extent permitted by sovereign
“English judges never enforce the law of another country but their
own, When they enforce a foreign law, what they enforce is the right
acquired under the foreign law & not the foreign law itself”
• Limitation
What about the choice of law rules within the municipal law of foreign
state
Theories (cont.,)
4. Local law theory
Realist school of jurisprudence
Important protagonist of this theory- Kelson
In cases involving foreign element, courts apply their
own law & adopt a foreign principle identical or
highly similar to their system
Hence, the court enforces not a foreign law but a right
a created by its own law
Theories (cont.,)
5. Theory of justice
• Main proponent is Graveson
• Sociologically- fair treatment in private
transactions of individuals
• Ethically- traditions & training of English judges
• Legally- judge’s oath
Principles of private international is founded on
the benchmarks of principle of justice
Characterisation
Characterisation
Method through which court assigns the nature and legal category of
claims
Inherent feature of all domestic and international judicial processes
• Characterisation by lex fori
• Characterisation by the lex causae
• Two-stage characterisation
Primary characterisation by lex fori & secondary characterisation lex causae
• Characterisation based on comparative law and analytical jurisprudence
Characterisation Based On Lex Fori
• Propounded by Bartin
• Law of the forum should determine the nature of relationship
• Based on sovereign necessity
• Supported by Chesire(England), Falconbridge(Canada), Lorenzen(US)
• Criticism:
• Mechanial application of lex fori- legal isolation
Characterisation (cont.,)
Characterisation Based On Lex Causae
• Despagnet and Wolff advocated the application of lex causae
• applicable law governing the legal facts determine their characterization
• Criticism: Suffers from a vicious circle issue
Characterisation Based On Comparative Law
• Rabel and Beckett advanced that analytical jurisprudence based on the
comparative study of laws should govern characterisation
• Criticism: Superficially attractive- heavy burden on judicial system- impractical
Two-stage Characterisation
• Falconbridge
• First stage- determined by lex fori
• Second stage- determined by lex causae (relevant foreign law & its
applicability
Connecting Factors
• Characterisation
• Connecting factors
• Renvoi
Connecting factors
• Identifying the applicable law to the dispute
• Function: To link legal categories to the applicable law
• Re Annesley case
Issues Common law Civil law countries
countries
material aspects of parties’ domicile parties’ nationality
marriage
succession to last domicile of the law of nationality of
movable property deceased the parties
Renvoi
Renvoi
“A question of renvoi arises where the choice-of-law rules of the forum refer an issue
to the courts of another country which, under its rules of choice of law, in turn, refers
the issue back to the law of the forum or on to the law of a third country.”
- Beaumont and McEleavy
• Forgo case
Forgo (Bavarian national) lived mostly in France & died, leaving substantial movable
property in France
The French court: For succession to movables, is applicable law is the law of the
nationality and refers to Bavarian law. Bavarian law provided for inheritance by
collateral relatives of the maternal lineage
However, under Bavarian conflict of law rules, the applicable law was the law of the
deceased’s domicile. Consequently, the Bavarian legal system remitted the matter
back to the French legal system.
Accepting the renvoi, the French court applied French law to the case and, as a
result, the entirety of the deceased’s property passed to the state & not to his
collateral relatives
Types of Renvoi
A, a British subject (UK citizen) domiciled in France, dies without a will. The English court
has to decide on the distribution of A’s movable property
First scenario
• English court (lex fori) applying its choice of law rules, decides that the law of the
domicile governs intestate succession to movables hence, the applicable law is the
French law
• The English court would interpret French law to mean the substantive law of France,
excluding its private international law rules
• In this scenario, there would be no application of renvoi
Second scenario: Single renvoi
• English court interprets the applicable French law (lex causae) to include its conflict
of laws
• The French choice of law refers the matter back to the law of nationality & the English
court would accept the remission back and apply English law.
• This is known as single renvoi or partial renvoi or renvoi proper
• Case: Forgo’s case
Types of Renvoi (cont.,)
Third scenario: Double renvoi
• English court interprets the lex causae to include its conflicts of laws and rules
of renvoi
• English court would attempt to evaluate the situation from a French judge’s
perspective
• The French court would refer the issue to English law as the law of nationality.
While English law would refer the issue back to French law as the legal system
of the deceased’s domicile
• France’s legal system would accept the English remission. The English court
would then apply French internal law
• This is known as double or total renvoi or foreign court theory
• Cases
• Re Annesley case
• Re Ross case
Types of Renvoi (cont.,)
In judicial practice, the doctrine of renvoi is mostly invoked in matters
concerning title to foreign land, formalities of a will & the status of
marriage
Criticisms
• Impractical & imposing a high threshold on the judiciary
• “If the court is misinformed as to foreign law or fails to interpret foreign law
accurately, total renvoi may lead to a grotesque result or a miscarriage of
justice” -Falconbridge
• Constant remission of the matter will result in circulus inextricabulus
• Difficult for the judge to assume the shoes of a foreign court
• When multiple legal systems are involved, it would create a maze of systems
contradicting each other
• Applying renvoi could lead to a duality of opinion on the same issue
Cases In Other Jurisdictions
Neilson v Overseas Projects Corporation of Victoria
• In this 2005 case, we saw revival of renvoi in international torts
• Nelson filed a claim against Overseas Projects Corporation (OPC) for damages
sustained due to OPC’s negligence in China
• Australian choice of law rules: the law of the place of harm (lex loci delicti)
governed the claim. U/ Chinese law, claim is barred by limitation period
• The Australian High Court: U/ Article 146 of the General Principles of Civil Law
of the Peoples Republic of China (PRC) the law of the place where the
infringement occurred should be applied.
• Article 146 also provides that where both parties are nationals of the same
country, their own country’s law may be applied.
• The High Court referred back to the law of Australia, meaning that Australia’s
limitations period applied, and Neilson triumphed
Renvoi under Indian Private International Law
National Thermal Power Corporation v Singer Company
• (NTPC) entered into a contract with the Singer Company(British entity) to supply
equipment & projects in India. A dispute arose & Singer sought arbitration under
the International Chamber of Commerce (ICC) rules in London, as provided in the
contract.
• Singer won the arbitration and was granted an award by the ICC tribunal
• Singer then sought to enforce the award in India under the Indian Foreign Awards
Act
• NTPC argued that the whole case should be retried in India under the Indian
Arbitration Act
• Supreme court of India: Parties have the freedom to choose the law governing an
international commercial arbitration agreement. They may choose the substantive
law & procedural law governing the conduct of the arbitration
• ‘Proper law’ refers to the substantive principles of the domestic law of the chosen
system & not to its conflict of laws rules. The law of contract is not affected by
the doctrine of renvoi
Renvoi under Indian Private International Law
• Jose Paulo Coutinho v Maria Luiza Valentina Pereira (2019)
Issue
Whether succession to the property of a Goan situated outside
Goa in India will be governed by the Portuguese Civil Code 1867
as applicable in the State of Goa or the Indian Succession Act
1925
The petitioner argued that since Portuguese law was applicable,
the principles of private international law should apply. He
invoked the doctrine of renvoi to apply foreign law to the citizens
of Goa.
Held
The argument was not sustained by the court. Renvoi not applied
Renvoi- Conclusive Points
• Besides the previously mentioned judicial statements, no dispute has arisen
before the Indian courts on the application of renvoi in the field of family
law or non-contractual matters
• Judicial statements have traced the rationale of the subject to comity and
the promotion of justice as founded on English notions of private
international law
• Despite an increased number of cases, private international law in India is
not backed by explicit legislation. The principles of English law have
traditionally guided the courts.
Previous year Questions
1. Meaning of private international law
2. Definition, need & scope of private international law*
3. Nature & scope of conflict of laws
4. Historical development of private international law*
5. Subject matter of private international law
6. Difference between public & private international law
7. Characterization
8. Theories of private international law*
9. Do you think unification of private international law is essential in the
globalized world*
10. Doctrine of renvoi* * Part B questions
Only for reference
do not replicate
