Dr.P.P.

Rao

UNIT-I

NATURE, SCOPE AND BASIS OF PRIVATE INTERNATIONAL LAW

Conflict of laws or Private international law comes into operation whenever a

municipal court is faced with a case involving a foreign element. It is only
when this element is present that international law has a function to
perform. Usually the cases that come for trail before Indian courts are those
in which cause of action arises in India, whose parties are Indians or
domiciled in India and the other elements of which are also of domestic
character. These are occasions that Indian courts are also seized of cases
having foreign elements. i.e., one or the other elements of the suits is
connected with some foreign country for example an Indian tourist is injured
in a road accident in London. It may be the place of business of one of the
parties, for example, an Indian company agrees to purchase computer
software from a company incorporated in New York; or it may be a foreign
domicile, for example, an Indian woman marries a man domiciled in Iran.

Private international law is not a separate branch of law in the same sense
as, say, the law of contract or of tort. It is all pervading.

“It starts up unexpectedly in any court in the midst of any process. It may be
sprung like a mine in a plain common law action, in an administrative
proceeding inequity, or in a divorce case, or a bankruptcy case, in a shipping
case or a matter of criminal procedure. The most 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 though has an international aspect, is essentially a
branch of municipal law. This is why every country has its own private
international law. Private international law though a branch of municipal
law, it doesn’t deal with any one branch of law, but is concerned practically
with every branch of law and thus has a very wide ambit.

The need for private international law arises because different countries have
different systems of law. Every country makes laws regarding property,
succession, marriage, matrimonial causes, adoption, contract etc.
Sometimes even within a country there may be different laws applicable to
different places for example, laws of different states of the United States
differ from each other. If there is no conflict between the laws of different
countries, there would be no need for Private International Law. Since the
laws of different countries differ, it becomes necessary in every country that
there should be a branch of law which is given the name of Private
International Law or conflict of laws.

Private International Law is always concerned with one or more of three

questions, namely:
(1) Jurisdiction of the court
(2) Recognition and enforcement of foreign judgements
(3) The choice of law.

Thus, the subject matter of Private International Law relates to every branch
of Private Law, but only in connection with these three matters.

TITLE

According to Cheshire the expression “Private International Law”, coined by

story in 1834, was adopted by the earlier English authors, such as West take
and Foote, and is used in most civil law countries. The chief criticism
directed against its is its tendency to confuse private international law with
the law of nations or public international law, as it is usually called.

An equally common title to describe the subject, and one used in the USA is
“The Conflicts of Laws”. This title is also misleading if it is used to suggest
that two systems of law are struggling to govern a case. In fact, the very
purpose of private international law is to avoid conflicts of law.

The fact is that no title can be found that is accurate and comprehensive,
and the two titles “Private International Law” and “The Conflict Of Laws” are
so well known to, and understood by, lawyers that no possible harm can
ensure from the adoption of either of them. The title, “Private International
Law” is most widely used throughout the world and in Cheshire’s view the
title “Conflicts of Laws” is preferable.

Both the above titles are subject to criticism and a few more titles have been
suggested but these have been so much criticised as cannot be accepted as a
title for the subject. They are:
(a)“International Private Law”,
(b)“International Municipal law”,
(c)”Comity”,
(d)”The Extra territorial Recognition of Rights”.
In spite of a number of criticisms, only the titles “Private International Law”,
and “The Conflicts of Laws” have been considered suitable for the subject.

PUBLIC AND PRIVATE LAW

It may be said that the conflict of laws is concerned much more with private
than the public law. It is traditional that English books on the conflict of
laws do not discuss topics as the jurisdiction of criminal courts to try crimes
committed abroad, or the extradition of persons accused of crime, or mutual
assistance between States in the conduct of criminal prosecutions, or the
immigration or deportation of aliens.

PUBLIC LAW
Public law is that part of law which is applicable to State in relation to its
subjects. The test of Public law depends upon the nature of the parties to the
relationship in question, if one of the parties, i.e., the State, the relationship
belongs to Public law. In modern times since the Stats have drifted from
laissez-faire to welfare States, which have entered in trade and industry the
scope of public law has greatly increased. In other words, all the acts done
by the government officers in furtherance of their official duties are covered
by the domain of Public law. Likewise the criminal law, Constitutional law
and administrative law are other forms of Public law.

PRIVATE LAW
Private law is that part of the law which determines relationship between
individuals in their ordinary private capacities. The law of contracts, the law
of property, torts, etc., are the examples of Private law. The modern jurists
like Kelson, Duguit do not recognise the difference between public and
Private law.

PUBLIC INTERNATIONAL LAW AND PRIVATE INTERNATIOANL LAW

“Private International Law is a body of principles for determining questions of

jurisdiction, and questions as to the selection of the appropriate law, in civil
cases which present themselves for decision before the court of one State or
country, but which involve ‘foreign element’, i.e., which affect foreign persons
or foreign things, or transactions that have been entered into wholly or partly
in a foreign country, or with reference to some foreign system of law.”

“The objects of Private International Law are, first, to prescribe the

conditions under which the court is competent to entertain a suit: secondly,
to determine for each class of cases the particular territorial system of law by
reference to which the rights of the parties must be ascertained and thirdly,
to specify the circumstances in which :
(a) A foreign judgement can be recognised as decisive of the creditor by in a
dispute; and
(b) The right vested in the creditor by a foreign judgement can be enforced by
action in England.”

According to Michael Akehurst, there appears to be little connection between

Public International Law and the various municipal systems of Private
International Law. Private International Law is different in each country;
there is consequently no affinity between Private and Public International
Law. Private International Law is essentially part of municipal law. Dicey
calls it as conflict of Laws since it deals with rules regulating cases in which
municipal laws of different States come into conflict. Such conflicts may
arise in connections with domicile, marriage, divorce, wills, validity of
contracts, etc. It is also known as inter-municipal law, international comity,
etc. Only in exceptional circumstances do rules of conflict of laws become
rules of International Law proper, as for instance when they are incorporated
in international treaties.

The permanent court of International justice observed in the Serbian Locus

case, that the rules of Private International law may be common to several
States and may even be established by International conventions or
customs, and in the latter case may possess the character of tree
International law governing the relations between States. But apart from this
it has to be considered that these rules from part of municipal law.

According to Sir Robert Phillimore, rights arising under Public International

law are called absolute, or rights statics juris, and their breach constitutes a
casus belli and justifies in the last resort a recourse to war, whereas Private
International law – the rules of which are founded upon conveniences, and
intend to facilitate the intercourse between the subjects of different States
confers no absolute rights.

Private International law is distinct branch of jurisprudence which has as its

major topic the body of rules determining which territorial system of law
controls Private law cases that have roots in more than one State, canton or
province. Violations of Private International by a State may also constitute
violations of Public International law if they are also breaches of treaties
agreeing to follow certain practices in relation to the former. Public
International law is a product not of the relations of private persons but of
the relations of States to each other and to public international
organisations.

RANGE AND DIFFICULTY OF THE SUBJECT

The interesting feature of the conflict of laws is that it is concerned with

almost every branch of Private law. According to Baty, ‘there is a sweep and
range in it which is almost lyric in its completeness. It is the fugal music of
law’. The distinguished American judge Cardozo J., said that it is ‘one of the
most baffing subjects of legal sciences’. And who also remarked that ‘the
average judge, when confronted by a problem in the conflict of laws, feels
almost completely lost, and, like a drowning man, will grasp at a straw’. The
subject is not only notoriously difficult but also very controversial –judges
differ, and so special do jurists. The result has sometimes seemed unedifying
to those who look at the subject from the outside. “The realm of the conflict
of laws”, said by Prosser an American writer that “is a dismal swamp filled
with quaking quagmires, and inhabited by learned but eccentric professors
who theorise about mysterious matters in a strange and incomprehensive
jargon”.

“Although the conflict of laws is highly controversial, the number of

permutations and combinations arising out of any given set of facts is
limited, and so is the number of possible solutions. In any given case the
choice of law depends ultimately on considerations of reason, convenience
and utility. In the conflict of laws, to a greater extent than in most other
subjects, there is much to be learnt from the way in which similar problems
have been solved in other countries with a historical and cultural back-
ground and traditional similar to our own. Hence no apology is needed for
the occasional citation of Scottish, American and common wealth cases, even
in a students’ text book.”

TECHNICAL TERMS

Like any other legal subject, the conflict of laws has its technical terms or
jargon. The rules of the conflict of laws are, traditionally, expressed in terms
of juridical concepts or categories and locating elements or connecting
factors.
In attempting to determine what law governs in the cases in which foreign
elements are involved, the courts seek guidance from connecting factors, i.e.,
the factors which link an event, a transaction or a person to a country.
Examples of such factors are:
Lexi loci contractus: the law of the place where the contract was made.
Lex loci solutions: the law of the place where the contract is to be performed.
Lex loci celebrations: the law of the place where the marriage was celebrated.
Lex loci delicti: the law of the place where the tort was committed.
Lexdomicilii: the law of the place where a person is domiciled.
Lexpatraie: the law of the nationality.
Lexsitus: the law of the place where the property is situated.
Lex loci actus: the law of the place where a legal act takes places.
Lexmonetae: the law of the country in whose currency a debt is expressed.
Lex loci disgrazine: the law of the place where a bill of exchange is
dishounred.
The above terms are used in relation to Lexcausae. The lexcausae is a
convenient short hand expression denoting the law which governs the
question. It is used in contradiction to the lexfori, which always means the
domestic law of the forum.

THE BASES OF CONFLICT OF LAWS

Various reasons have been given from time to time to explain as to why
municipal courts apply foreign law. Comity of nations was the earliest. Dutch
jurist, John Voet, its earliest protagonist, said that one nation applies the
law of another to show its regard towards it. It was at one time supposed
that the doctrine of comity was a sufficient basis for the conflict of laws; and
even today references to comity are sometimes found in English judgement
(Travers V Holley 1953); and Igra V Igra (1951). If, for example, first cousins
domiciled in Portugal marry in England. Suppose that such a marriage is
valid by English law but void by Portuguese law. The English court will hold
this marriage void, even if the parties wished it to be valid. (This may be
inferred from the court of Appeal decision in Sottomayor V De Barros (1877)).
Clearly, this decision does not serve the interests of the parties, but it is
based on comity partly to protect the interests of a foreign country and partly
in the expectation that the favour will be returned.
The word ‘comity’ itself is incompatible with the judicial function, for comity
is a matter for sovereigns, not for judges required to decide a case according
to the rights of the parties. Again, if the word is given its normal meaning of
courtesy it is scarcely consistent with the readiness of English courts to
apply enemy laws in time of war. Moreover, if courtesy formed the basis of
the law Private International law a judge might feel compelled to ignore the
law of Utopia on proof that Utopian courts apply no law but their own, since
comity implies a bilateral, not a unilateral, relationship. If, on the other
hand, comity means that no foreign law is applicable in England except with
the permission of the sovereign, it is nothing more than a truism. The fact is
of course, that the application of a foreign law implies no act of courtesy, no
sacrifice of sovereignty. It mearly derives from a desire to do justice’.

Another basis for the application of foreign law that has been propounded is
that foreign law is applied because it is necessary for the determination of
the rights of parties. Present laws of most countries accept that municipal
courts have jurisdiction to try suits having foreign elements. Then it follows
that in such cases the courts should apply the relevant foreign law. Thus, if
an Indian court is called upon to adjudicate the rights of parties arising out
of a contract entered into in Singapore, the performance of which was to be
made in Karachi, then for arriving at a complete and just decision, it is
incumbent upon the Indian court that it should decide under the law of
Singapore or Pakistan whichever is considered to be applicable.

Another important basis for the application of the foreign law is said to be
demand of justice. It requires that the foreign law should be applied. The
protagonists of this view say that invariable application of the lexfori would
often lead to injustice. Suppose an Indian marriage between two members of
the self respectors’ cult comes for consideration before an English court and
its validity is challenged on the ground of lack of proper formalities of
marriage. If English law is applied the marriage will be void as among self-
respector Hindus only ceremony of marriage that is required is exchange of
garlands and rings between the bride and bridegroom. As per the demand of
justice the English court should apply the Hindu law.

The greatest difficulty that one faces in the application of this theory is as to
what is the meaning of justice. According to graveson it is to a great extent a
legal reflection of ethical and moral values conditioned by time, place and
circumstances, much as the concept of reasonableness in common law is a
reflection of contemporary social values.

Justice Chandrachud said that recognition is accorded “not as an act of

courtesy but an consideration of justice”.

Whatever may be considered to be the basis of the application of foreign law,

it is now accepted principle that in a case having foreign elements, some
appropriate foreign law is applicable.
FUNCTIONS OF PRIVATE INTERNATIOANL LAW

JURISDICTION

The law of procedure of every country lays down that in what matter which
court will have jurisdiction. The procedural law also lays down rules for
other matters of procedure and in some systems of law these rules apply to
all types of suits, to suits having foreign elements. The Indian civil procedure
code and the law of civil procedure of many other countries lays down that
the court shall not proceed with the case unless the service of summons is
made on the defendant. This rule applies to all defendants, including those
who are living abroad. Looked at from this aspect, the question of
jurisdiction is a fundamental question in all suits and legal actions.
However, for the following two reasons it has special significance in Private
International law.

First, in certain circumstances the court exercises jurisdiction in a case even

when the defendant is absent. In a suit whose all elements are interval, the
judgement rendered in the absence of the defendant. Such a judgement may
also be enforceable when it has some foreign elements so far as the court
that rendered the judgement is concerned. But, then, such a judgement may
not be recognised elsewhere.

Secondly, these are certain matters in which the court cannot exercise
jurisdiction even though the defendant is present, such as in a petition for
dissolution of marriage or in a suit relating to immovable property situated
abroad. The question of jurisdiction may arise before the court in the
following two circumstances:
(a) When a suit is filed before the court the question arises whether the court
has jurisdiction, or
(b) When the question before the court is of the recognition of a foreign
judgement or its enforcement, the court may be called upon to determine
whether the foreign court that rendered the judgement was a court of
competent jurisdiction. Normallythe rules of jurisdiction are based on the
principle that the court rendering judgement must be able to enforce it.
Today most of the countries of the world are unanimous on the view that in
respect of innovations the court of that place has jurisdiction where the
property is situated. But in respect of movables there is no such unanimity.
Similarly, in suits relating to personal matters there is no uniformity.
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENTS

The Private International Law has to determine circumstances in which and

the basis on which foreign judgements are to be recognised. In some
countries including India civil procedure law lays down detailed rule
regarding the recognition and enforcement of foreign judgements. Once the
court comes to the conclusion that the foreign judgement is a judgement of
competent court, it would not take into account the question whether the
foreign law made a mistake on matters of law or facts. The question of the
competency of the foreign court is determined by the rules of Private
International Law.

CHOICE OF LAW

Once the court comes to the conclusion that it has jurisdiction, then in a
conflict of law case (case having foreign element), the question that arises is:
Under which law the suit should be decided..?? Whether the law of the forum
(interval law) will apply or whether some foreign law or foreign laws will
apply. This is known as the question of choice of law.

The action before a court, for instance, may concern a contract made or a
tort committed abroad or the validity of a will made by a person who died
domiciled abroad. In each case that part of the country’s law which consists
of Private International Law directs what legal system shally apply to the
case, i.e., to use a convenient expression, what system of interval law shall
constitute the applicable law. For example, a wife files a petition for judicial
separation in an Indian court under section 10 of Hindu Marriage Act on the
ground of desertion. Both parties are Indian domiciled Hindus married in
England, and while they went to New York the husband deserted her there.
The Indian court has jurisdiction now the question is, which law should be
applied: Law of England, New York or Indian..?? The question of choice of
law is to be determined in all such cases by Indian Private International Law.
Private International Law merely informs as to which systems of law, foreign
or domestic, will govern the matter. English Private International Law, for
instance, requires that the movable property of a British subject who dies
intestate domiciled in Italy shall be distributed according to Italian law.
These rules for the choice of law, then, indicate the particular legal system
by reference to which a solution of the dispute must be reached. This does
not necessarily mean that only one legal system is applicable, for different
aspects of a case may be governed by difficult laws, as is the case with
marriage where formal and essential validity are governed by different laws.
The function of Private International Law is complete when it has chosen the
appropriate system of law. Its rules do not furnish a direct solution of the
dispute. As said by Cheshire this depart must of law resembles the inquiry
office at a railway station, where a passenger may learn the platform at
which his train starts.

UNIFICATION OF PRIVATE INTERNATIONAL LAW

The need for Private International Law arises because the interval laws of
different countries differ from each other. The difference is not only in the
internal laws of the different countries, but also in the Private International
Laws of the different countries, on account of which sometimes conflicting
decisions are pronounced by the courts of different on the same matter.
Thus, the need for the unification of rules of Private International Law arises.

CIVIL AND COMMON LAW SYSTEMS

There are two major systems of law, the common law and the civil law. These
two differ from each other as to the rules of Private International Law.
Germany, Switzerland and Scandinavian countries restrict the scope of
Private International Law to problems of conflict of laws and matters relating
to status of foreigners fall under a separation to branch called the law of
foreigners. Private International Law of Soviet Union and of the People’s
Democracies of Eastern Europe include within its abmit the rules of choice of
law along with all the connecting factors such as nationality or domicile, the
place where the contract was entered into or is to be performed. However,
the rules relating to resolving of conflicts of jurisdiction are not included
within the rules of Private International Law. They are considered to relate to
procedural law. The countries of the common law systems include the rules
of jurisdiction as well as the rules of choice of law within the scope of Private
International Law.

There are two modes for the unification of Private International Law:
(a) Unification of the interval laws of the countries of the world.
(b) Unification of the rules of Private International Law.

UNIFICATION OF INTERNAL LAW

The first step in the direction of the unification of internal laws was taken by
the Bern Convention of 1886. Since amended several times under which an
International union for the protection of the rights of authors over their
literary and artistic works was formed. Another important example of
unification is the Warsaw Convention of 1929 as amended at The Hague,
1995, and supplemented by the Guadalajara Convention, 1961, which
makes the international carriage of persons or goods by aircraft for reward
subject to uniform rules as regards both jurisdiction and the law to be
applied. It also provides that any agreement by the parties purporting to alter
the rules on these matters shall be null and void.

The council of the League of Nations entrusted to the Institute for the
Unification of Private Laws- UNIDROIT, established by the Italian
government in Rome. An important result its labours, in conjunction with
those of the Hague Conference, was the conclusion at the Hague in 1964 of a
convention which establishes a uniform set of rules on international sales of
goods and also on the formation of contracts for such sales. There is now a
successor to the 1964 Convention, the United Nations Convention on
contracts for the International sale of goods (1980), prepared under the
auspices of another body concerned with the unification of law, the United
Nations Committee on International Trade Law- UNCITRAL.

UNIFICATION OF PRIVATE INTERNATIONAL LAW

Because of basic ideological differences among the countries of the world, it

is not possible to achieve unification of all private laws. Therefore, another
method of avoiding the situation where courts in different countries may
arrive different results on the same matter is the unification of the rules of
the Private International Law. Considering the importance of the unification
of rules of Private International Law, several serious international efforts
have been made in this direction. Attempts have been made in the Hague
Conference on Private International Law to reduce the number of topics on
which the rules for choice of law in different countries conflict, thus
indicating the common to the civilised world.

A step of great significance taken in 1951 was the drafting of a character

designed to place The Hague Conference on a lasting footing by the
established of a permanent bureau. This character has been accepted by
many countries, including the United Kingdom, and the Bureau, consisting
of a Secretary General and two Assistants Secretaries belonging to different
countries, was established at The Hague. It’s chief functions are to examine
and prepare proposals for the unification of Private International Law and to
keep in touch with the council of Europe and with governmental and non-
governmental organisations, such as the common wealth and the
International Law Association. The Bureau works under the general direction
of the standing government commission of the Netherlands, with the object
of promoting the codification of Private International Law. Active
consideration is now being given in the Hague conference to the preparation
of a world-wide convention on jurisdiction and the recognition and
enforcement of judgements.

In addition to the conventions mentioned above, many similar arrangements

have been made between individual countries, as for example the bilateral
conventions on civil procedure concluded by the United Kingdom with a large
number of foreign States. An example of a limited multilateral convention is
that concluded in 1969 between the Benelux states- Belgium, the
Netherlands and Luxemburg- which unified the rules of Private International
Law on the more important matters, such as capacity and states, succession
to property on death and the essential validity of contracts. International
efforts in this regard have achieved only limited success.

INDIAN PRIVATE INTERNATIONAL LAW

Indian Private International Law is yet in its formative stage. Most of the
rules of Indian Private International Law have been borrowed from, or are
based on, English Private International Law. Probably, before the
independence of India nothing else was possible. But, now Indian courts
have an opportunity to develop own rules of Indian Private International
Law.

It is well known that much before the advent of Mughal rule in India,
particularly during the Gupta and Mauryian Empires, India had a
flourishing trade and commerce with countries far and beyond, across the
high seas and through the inland routes. It seems to be evident that many
suits pertaining to contracts and transactions relating to trade, commerce
and other matters must have come before Indian courts. The Indian courts
did not decide the matters entirely by reference to Indian law. India has a
fairly developed law and custom of merchants and the suits were decided
there under. It is also evident that during the Gupta and Mauryian Empires,
law in India was territorial, though usage and custom too had their place,
sometimes supplementing law, sometimes over riding it.

With the establishment of the Mughal Empire in India on many matters

rules of Muslim law came to applicable. However, in most matters, if both
the parties were Hindu, Hindu law was applied if both the parties were
Muslim, Muslim law was applied. In personal matters in the entire area of
the family law, it was the personal law of the parties that was applied.
Hindus were governed by their own Muslim personal law. Thus, the era of
personal laws in India emerged.

During the British period, from its beginning to its end various communities
in India were governed by their personal law in personal matters. Thus
though there was a possibility of conflict in personal laws but such occasion
of conflict was very rare. This was so because a Hindu could not marry a
Non-Hindu under the Hindu law. In other words inter community relations
were not possible. Such inter community or inter religious marriages could
be performed in civil marriage from under a separate form under a separate
statute, the Special Marriage Act, 1872-1928. Inter State and inter religious
marriages were made possible under the Act by an amendment of 1923, this
statute has now been repealed and replaced by the Special Marriage Act,
1954 under which on the satisfaction of certain requirements as to capacity
‘any person’ can perform a marriage. Once a marriage was performed under
the Special Marriage Act, parties cease to be governed in most of the matters
by the laws of their respective community. In all matrimonial matters,
including matrimonial causes, they were governed by the Special Marriage
Act, 1954 and succession to their property was regulated by the Indian
succession Act, 1925. Thus in most potential areas of conflict of communal
laws, the conflicts were avoided. This continues to be the situation even now.
In the personal matters laws in India is not territorial but personal.

During the British period, India developed contacts not merely with the
countries of the British Empire but also with other countries. The result was
cases with the foreign elements did come for adjudication before the Indian
courts. Just as in other matters, so in the cases having foreign elements, the
Indian courts decided mostly by applying rules propounded in English
decisions. Thus basically the rules of Indian private international law are
based on the rules of English private international law. Now Indian courts
are in a position to develop the rules of Private International law in
accordance with the social needs and circumstances of contemporary society
and in accordance with the ideas and notions of justice. But still the Indian
courts are following the rules of English private international law.

In a very wide and broad sense Indian law means all rules of law which
Indian courts apply when they adjudicate upon a case, aid in this sense it
also includes rules of private international law, under which the courts
determine the questions of jurisdiction and choice of law. In a narrow sense,
Indian law means al such rules excluding the rules of private international
law.
Sections 9 to 35-A and 44-A of Indian civil procedure code, 1908 deal with
the aspects of jurisdiction. In general, section 13 of the code deals with
recognition and enforcement of foreign judgement in particular. Indian
courts have adopted and following the English rules/principles relating to
choice of law in torts, contracts, marriage, status etc.

It has already been said that certain international efforts have been made to
bring uniform rules of private international law with little success. Even the
conventions that have been entered into by parties/states can be recognised
or incorporated in the municipal law as private international law, though has
an international aspect, is essentially a branch of municipal law. Thus, it
can be concluded that the international conventions to become part of
municipal law, specific adoption is required.