HISTORICAL AND

COMPARATIVE
INTRODUCTION TO
CONFLICT OF LAWS
BY
ALISHA NANAVATI – ROLL NO-5
ADITYA PATEL- ROLL NO-4
 INTRODUCTION OF PRIVATE INTERNATIONAL
LAW

• According to Dicey and Morris,

“Private International law is that part of law which comes into play when the

issue before the court affects some facts, events or transaction that is so closely

connected with a foreign system of law as to necessitate recourse to that

system”.
 THEORIES OF PRIVATE INTERNATIONAL
LAW

• To justify the existence of Private International Law as a separate Branch of

Study there are the different views of different writers and jurist for that

there are different theories underlying the application of Private International

law.
 Statute Theory

Theory of Theories of private

justice international law International
Theory

Local Theory Territorial Theory

 STATUTE THEORY

• 13th Century Italian – Bartolus , “Father of Statute Theory”.

• Aimed:- solving the conflict between the law of various city states on one
side and the law of city states and the Italian Law on other side.

• A Statute was a declaratory re-statement of older customary law of city and its
community.
 Statute theory

Statuta Statuta Statuta

Personalia Realia mixta
 FRENCH VERSION THEORY

Charles Dumoulin Benrtrand D’Argentre

• He was in the favour of • Whereas
the personal statue. D’Argentre was in
the favour of Real
Statute.
 DUTCH VERSION OF THE THEORY

• In 17th Century it was developed by Dutch Jurist Ulrich Huber who gave

new strides to this theory.

• He gave Three principle to solve the problem of conflict of law.

 PRINCIPLES

Sovereign will also act

The laws of each Irrespective of the by way of comity that
States operates within facts whether they are rights acquired within
its territory-but no permanent or the limit of govt. retain
operative force temporary residence their force everywhere
laws of state at so far as they not cause
beyond territory. prejudice or right of
applicable to all,
such government
 CRITICISM OF STATUTE THEORY

• The Statute theory seems very simple but in practical it is not easy because
it is difficult to determine the nature of disputes i.e. whether it relates to
things or land.

• If it is land disputes between two parties than what to consider first land or
the parties.

• Bartulous clarify that the real statute should be considered first when a case
involve things.

• But still it is very difficult to distinguish

 INTERNATIONAL THEORY

• Founder of this theory was Fridrich Carl

Von Savigny.

• On 1849 he published the 18th volume of his

book “System of Modern Roman Law”.

• It was opposite to Statute theory.

• According to Savigny, “Every legal seat of a thing was the place
where it is situated; the seat of the legal relationship of the capacity
of a person was the place where he was domiciled.

• He stated that in case having a foreign element the same legal

relationship have to expect the same decision whether the judgment
is pronounced by the State or that State.

• This theory was supported by:-

(1)Von Bar- Germany

(2) Westlake- England

(3) Wharton-US
 CRITICISM

• This theory States that there is uniformity of law of the different countries
but there is problem of conflicts of law.

• It is impracticable because the Doctrine of Soverignty restricted the

absolute application of universal principles.

• There is no one legal system in International sphere.

 TERRITORIAL THEORY

• It is also known as theory of Acquired

Rights.

• The main Protagonists of this theory are-

(1) A. V. Dicey-England

(2) Prof. Beale- United

State

(3) Huber-Dutch
• According to them the court of states are ordinarily bound to apply

the territorial laws/municipals laws.

• They further says that the municipal court cannot apply the foreign

law and also cannot recognize the foreign Judgment.

 CRITICISM

• The Territorial theory has given a very narrow meaning to term

“Territorial law”.

• The fact is that the term “Territorial law” is not confined to

the laws of sovereign State having operation within its territory,
but it also includes the rules of choice of law.
 LOCAL THEORY

• It was expounded by Walter Wheeler

Cook.
• It is application of the Doctrine of the
Territoriality.
• According to Cook the “ No court can
apply any other law and also cannot
enforce the right and obligation created
by the other laws.
• In case having foreign element the local
laws should be applied.
 THEORY OF JUSTICE

• According to Gravenson,

“ Anything lesser than the basis of justice is not sufficient and

anything greater than basis of justice is not possible.
 PRE-INDEPENDENCE PERIODP

PRIVATE INTERNATIONAL LAW IN

INDIA

POST-INDEPENDENCE PERIOD
 PRE-INDEPENDENCE PERIODP

• During the British period, from its very beginning to its end various
communities in India were governed by their personal laws in personal
matters.

• The result was cases with foreign elements did com adjudication before the
Indian courts. Just as in other matters, so in cases having foreign elements,
Indian courts decided them mostly by applying rules propounded in English
decisions.
 POST-INDEPENDENCE PERIOD

• 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 and in accordance with the ideas
and notions of world justice