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Printed By: Vishal R (vishal07) on Mon Jan 27 11:44:15 UTC 2020

 PRIVATE INTERNATIONAL LAW eBooks

Table of Contents
Full Content
Suggestive Questions
Memory Tickers

Unit I - Introduction
Meaning and Subject Matter of Private International
Meaning of Private International Law

Definition of Private International Law

Conflict of Laws – meaning
Nature of Private International Law
Scope of Private International Law
Need for Private International Law

Evolution of Private International Law in India

Theories of Private International Law
The Statutory Theory
In its original form in Italy

International Theory
Territorial Theory or Theory of Acquired Rights
The Local Law Theory
Theory of Justice
The American Revolution
Governmental interest analysis
Comparative impairment
Principles of Preference
Interpretation of Forum Policy
Choice of Law factors

Codification of Private International Law

Hague Convention
History
Method of Operation
Member States
Institutional Structure

Secretariat
Working of the Convention
Resolution by Seventeenth Session
Distinction Between Private and Public International Law

Unit II - Jurisdiction
Jurisdiction of Courts
Meaning of ‘Jurisdiction’
 Principles or basis on which the British Court assumes jurisdiction in the Private International Law or the conflict
of laws
The Principle of effectiveness
The principle of submission

Who can File an Action

English Law
Indian Law

Choice of Law
Domicile – Meaning
Definition of ‘Domicile’
Important cases related to Domicile
General Principles or rules in respect of Domicile
No person can be without a domicile

No person can have simultaneously two domiciles

Domicile denotes connection with a territorial system of law
Presumption is in favour of continuance of an existing domicile

Distinction Between Domicile And Nationality

Domicile of Independent Person
Domicile of Origin
Domicile of Choice

Doctrine of Renvoi
The Mutual Disclaimer Theory (Apply Internal Law only)
The Theory of Renvoi Proper (Doctrine of Single Renovi)
The Foreign Court Theory (Doctrine of total renvoi)
Criticism of the Doctrine of Renvoi
Issues to Which Renvoi, May Apply
Title to Foreign Land
Validity of bequests
Title to foreign movables
Status (family law issues)
International Conventions
Transmission
Example

Unit III - Judicial Attitude

Status
Definition of ‘Status’
Characteristics of Status
Conference by State
Matter of Public Interest
 Status is not acquired by the will of the party
Universality of Status

Marriage
Concept of Marriage
Indian Law

Conditions for Validity of Marriage

Governing Matters of Capacity to Marry
Consent of Parties
Non-age
Prohibited Degree

Dissolution of Marriage
Meaning of ‘Dissolution’
Meaning of Divorce
Grounds of Divorce
Indian Law
Indian Law regarding Divorce

Nullity of Marriage
Grounds for Void and Voidable Marriage
English Law
Void Marriage
Voidable Marriage

Indian Law
Void marriages
Voidable Marriage

Adoption
Introduction
Adoption Proceeding in England

Jurisdiction of English Courts

General Rules

Effect of an adoption order

Indian Law

Jurisdiction of Indian Courts

Effect of adoption
Recognition of adoptions made in designated countries (overseas adoptions)
Recognition of Foreign Adoptions
English Law
Indian Law

Adoption by Foreign Parents

The Hague Convention, 1993 on Inter-Country Adoptions
 Status of Guardian and Ward
Meaning of Guardian
Meaning of ‘Ward’
Guardianship and Custody
Choice of Law relating Guardianship in Private International Law
Jurisdiction of Guardianship in England
Jurisdiction of Guardianship in India
Recognition of Foreign Guardianship Orders in England
Recognition of foreign guardianship and custody orders in India

Unit IV - Contracts
Introduction
Elements of Contract
Offer and acceptance
Capacity to contract
Consideration
Matters affecting contractual obligations

Negotiable Instruments
Special Rules of Evidence
Types of Negotiable Instruments
English Law
Formalities

Indian Law
Formalities

Jurisdictional Issues Related to E-Contracts

Legal Principles on Jurisdiction in India

Private International Law Relating to Corporations

Domicile
Winding up of Companies
English Law
Indian Law

Nationality
Presence
English Law
Indian Law

Insolvency
English Law
Choice of Law
Foreign Bankruptcy
Indian Law
 Effect of Indian Insolvency

Unit V - Enforcement
Recognition and Enforcement of Foreign Judgments
Recognition of Foreign Judgments – Theories
Theory of comity
The obligation theory
Theory of Judicial reason or ideas of social value
The theory of harmony between judgment and law
The theory of harmony between foreign judgments and conflict Laws
Doctrine of acquired rights

Basis of Recognition of Foreign Judgments under English Law

The judgment must have been given by a court of competent jurisdiction

Judgments of foreign courts on domestic Status

Final and Conclusive Judgment

The judgment must be for a definite sum

Judgment Impeachable on Merit

Direct execution of foreign decrees

Judgment Extension Act, 1868

The Administration of Justice Act, 1920

Foreign Judgment (Reciprocal Enforcement) Act, 1933

Indian Law relating to direct execution of Foreign Judgments

Execution of decrees passed by Civil Courts in places to which this Code does not extend
Execution of decrees passed by Revenue Courts in places to which this Code does not extend

Foreign Arbitral Awards

Introduction

Enforcement at Common Law

Enforcement under the Arbitration Act 1950

Enforcement under the Arbitration Act 1996

Stay of Actions
Introduction

Stay Under English Law

Indian Law

The Proof of Foreign Law

Introduction

How Foreign Law is Proved

Witnesses who can Prove Foreign Law

The Role of the Court

Unit I - Introduction
 Course Outline of Unit I: Introduction
This Unit contains discussion on following topics :
Introduction - Scope of Private International Law - Theories of Private International Law - Conflict of Law or Private
International Law - Codification of Private International Law - Hague Conventions - Distinction between Public International
Law and Private International Law
Disclaimer: This subject content as provided under AIR Online Education Support Suite is only Study (Reference) Material for
supplementing your Academic Classroom (Text Book) Learning. These are not Text Books on the Law Subjects.

Meaning and Subject Matter of Private International

Meaning of Private International Law
‘Private International Law’ or ‘Conflict of Laws’ is a set of procedural rules that determines which legal system and which
jurisdiction applies to a given dispute. The rules typically apply when a legal dispute has a ‘foreign’ element such as a contract
agreed to by parties located in different countries, although the ‘’foreign’ element also exists in multi-jurisdictional countries1.
Private International Law is that part of English Law which comes into operation whenever the court is faced with a claim that
contains a foreign element.It is only when this element is present that private Internatonal Law has a function to perform. It has
three main objects :

First, to prescribe the conditions under which the court is competent to entertain such a claim.

Secondly, to determine for each class of case the particular municipal system of law by reference to which the rights of
the parties must be ascertained.

Thirdly, to specify the circumstances in which (a) a foreign judgment can be recognised as decisive of the question ; and
(b) the right vested in the judgment creditor by a foreign judgment can be enforced by action in England.

‘Private International Law’ is branch of jurisprudence arising from the diverse laws of various nations that applies when private
citizens of different countries interact or transact business with one another.
Private International Law refers to that part of the law that is administered between private citizens of different countries or is
concerned with the definition, regulation, and enforcement of rights in situations where both of the person in whom the right in
heres and the person upon whom the obligation rests are private citizens of different nations2. It is a set of rules and regulations
that are established or agreed upon by citizens of different nations who privately enter into a transaction and will be governed in
the event of a dispute.
Private International Law is 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 crucial factor viz., whether its courts are competent to exercise jurisdiction over a particular case.
Definition of Private International Law
According to Cheshire, “Private International Law is that part of law which comes into play when the issue before the court affects
some fact, event or transaction that is so closely connected with a foreign system of law as to necessitate recourse to that system.”
As per Graveson, “English Private International Law which deals with cases in which some relevant fact has a geographical
connection with a foreign country and may, on that ground, raise a question as to the application of English, or to the appropriate
foreign law to the determination of the issue or as to the exercise of jurisdiction by English or foreign courts.”
As per Dicey and Morris, “English Private International Law is that branch of law of England which consists of rules which do not
directly determine the rights and liabilities of particular persons but which determines the limits of the jurisdiction to be exercised
by the English Courts and also the choice of the body of law, whether domestic law of England or the law of any foreign country
by reference to which English Courts are to determine different matters brought before them for decision.
Conflict of Laws – meaning
‘Conflict of laws’ is a general term to refer to disparities among laws, regardless of whether the relevant legal systems are
international or inter-state. The term ‘Conflict of laws’ to denote the subject has equally gained wide circulation in jurisdictions of
the Common Law legal tradition and Dicey is its chief sponsor. Within the federal systems where legal conflicts among federal
States require resolution, as in the United States and Australia, the term ‘conflict of laws’ is preferred simply because such cases
do not involve an international issue. The term, however, can be misleading when it refers to resolution of conflicts between
competing systems rather than ‘conflict itself. The term ‘conflicts of law’ itself originates from situations where the ultimate
outcome of a legal dispute depended upon which law applied, and the common law courts manner of resolving the conflict
between those laws3.
The three branches of conflict of laws are:
i. Jurisdiction – whether the forum court has the power to resolve the dispute at hand.
ii. Choice of law – the law which is being applied to resolve the dispute.
iii. Foreign judgments – the ability to recognize and enforce a judgment from an external forum within the jurisdiction of
the adjudicating forum.
The term ‘Private International Law’ was coined by American lawyer and Judge Joseph Story in 1834 and its has since then been
adopted by a large number of jurists including Foelix, Weslake and Foote. But, it was abandoned subsequently by common law
scholars and embraced by civil law lawyers4.
Private International Law is primordially a branch of municipal law dealing with disputes of private character, though one of the
disputants may be sovereign state5.
Nature of Private International Law
The Private International Law is merely a foliage of municipal law of each State and is administered by Municipal Courts and not
by any International Judicial body. This is the reason why, every country has its own Private International Law. However, Private
International Law though a branch of municipal law, does not deal with any other branch of law, but is concerned practically with
every branch of law and thus has a very wide ambit.
Private International Law, by its very nature, merely indicates the governing law under which a case is to be decided. For example,
a Court is called upon to determine the validity of a marriage performed between an Indian domiciled man and an English
Domiciled woman, the ceremonies of marriage were performed in Paris. The Private International Law merely states that the
question as to capacity to marriage is to be determined by the law of the domicile of the parties and the question of the
performance of ceremonies is to be determined by the law of the place where the marriage was solemnized. On knowing this, the
court will decide the case accordingly; if the question is of capacity the matter will be determined by reference to Indian law or
English law; or, if the question is whether requisite ceremonies were performed or not, the court will decide it by reference to
French Law.
Scope of Private International Law
Private International Law is a separate and distinct unit in Common Law system just as much as the law of tort or of contract, but it
possesses this unity not because it deals with one particular topic, but because it is always concerned with one or all of jurisdiction,
choice of law and recognition and enforcement of foreign judgment6.
Although in India, rules related to jurisdiction of court and rules relating to recognition and enforcement of foreign judgments are
laid down in the Civil Procedure Code, yet Indian Courts have all along considered the jurisdiction of court and rules of choice of
law as falling within ambit of Private International Law7.
Need for Private International Law
According to Paras Diwan, the need for Private International Law arises because different countries have different systems of law.
Every Country makes laws regarding marriage, matrimonial causes, adoption, succession, contract, debts, torts and like matters.
But, more often not, laws of different countries have different rules in respect of these matters. Sometimes even within a country
laws are different.
Since the laws of different countries differ, it becomes necessary in every country that there should be a branch of law which
resolves these conflicts.
People migrate from one State to another. They contact each other to do business internationally. People marry each other of
different races, nations, and if there are conflicts they have to be resolved. For all this there should be some Rules of Private
International Law, to be followed by all the States8.

Evolution of Private International Law in India

During Ancient times, India was divided into Kingdoms. Later Gupta and Mauryian Empires consisted vast lands with different
local rulers. In Ancient India, trade and commerce flourished ,spreading to countries far and beyond, across the high seas and
through the inland routes. Suits relating to the contracts of local trade were filed in local courts and the suits of high cognigence
were filed in King’s Courts. India had fully developed law and custom based on Dharma. Indian literature contained a number of
evidences of delivery of judgments using the logic and wisdom. Though law was not recorded, there were ‘Dharma Shastras’
containing usages and customs. Kautilyas Artha Shastra contained some traces of Private International Law. Some ‘gruhya sutras’
contains the personal laws of marriage, inheritance, adoption and distribution as Hindu Law.
With the establishment of Delhi Sultanate and Mughal Empire in India, Muslim Law became applicable. Both Hindu Law and
Muslim Law was there in existence. In personal matters – in the entire area of family law – it was the personal law of parties that
applied i.e., Muslim law for Muslims and Hindu Law for Hindus. Thus emerged the era of personal laws in India.
Even in British period, various communities in India had their personal laws in personal matters. Thus Hindus and Buddhists were
governed by Hindu Law. Muslims by Muslim Law, Christians by Christian Law, Parsis by Parsi Law and Jews by Jewish Law.
But, there were no conflicts between those laws as the society was divided by cordial groups though there was a possibility of
conflict in personal laws. Marriages were within the communities as a Hindu could not marry a Non-Hindu, under Hindu law and
so on. In later period, though inter-community or inter-religious marriages could be performed in civil marriage under the Special
Marriage Acts, 1872-1928 Hindu Law was codified and followed by the Courts. In the most potential areas of conflict of
communal laws, the conflict was avoided.
During the British period, as India developed contacts with the different countries of the world, there came cases with foreign
elements for adjudication before the Indian courts. Indian court decided them 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.
Indian Courts have almost blindly, followed and adhered to English precedents.
Even in present-day India, in personal matters, laws are not territorial but personal. However, in Bengal Hindus are governed by
the Dayabhaga School of Hindu Law where Hindus of other areas are governed by Mitakshara School of Hindu Law.
During British rule, India had developed trade contracts not only with the countries of British Empire but also with other countries.
The result was cases with foreign elements did come for adjudication before the Indian Courts. The decision was taken based on
the decision of British Courts. Thus the rules of Indian Private International Law are similar to those of English Law.
Till the time of independence, Indian Courts have almost blindly, apishly, followed and adhered to English Precedents9.
But, after independence, India developed the rules of Private International Law in accordance with the social needs of modern
society and according to the International Conventions. However our law was built on the foundations of common law of England
and hence, mostly we are still following rules of English Private International Law with slight modifications wherever required.

Unification of International Law

Efforts for unification of the international laws of the various counties have been made through international conventions. They
are:
1. Berne Convention of 1886 under which an international union for the protection of the rights of authors over their
literary and artistic works was formed.
2. After the First World War, an International Institute for the Unification of Private Law was established at Rome. This
Institute has achieved some success in the field of unification of civil laws of different countries of the world namely-
a. The Warsaw Convention of 1929 on the International Carriage of persons of goods by aircraft for reward. It has
been amended by the Hague Convention of 1955.
b. In the Brussels convention of 1922-23, the unification of rules relating to carriage of goods and persons by sea
came into existence.
c. The Berne convention of 1924 on the carriage by rail.
d. The Geneva Convention on International Carriage of Goods by Road of 1957.

3. The Geneva Conference of 1930 producing the Uniform Laws of Bills of exchange and cheques and the like.
4. An important contribution has been made by the Rome Institute in conjugation with the Hague Conference in arriving
at a Convention in 1964 which establishes a uniform set of rules on international sales of goods and also on the formation
of contracts for such sales.

Some successful attempts at the unification of international level at regional level have also been made. For example, four
Scandinavian countries, Finland and, Denmark, Norway and Sweden who have signed conventions unifying several branches of
law, such as relating to Bankruptcy, res judicata and recognition of judgment and enforcement of decrees.
Unification of the Rules of Private International Law
Due to 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 at different results on the same
matter is the unification of the rules of 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.
i. The Hague Conferences of 1893, 1894, 1900 and 1904 that brought forth conventions on validity of marriages, effects
of marriage, divorce and separation, guardianship, interdiction, and Civil procedure. The Great Britain was not a party to
these conferences chiefly owing to the difficulties of agreement between common law and principles.
ii. The Hague Conference of 1951 which formulated convention on the International contracts for the sale of goods, the
regulation of conflicts between the law of nationality and the law of domicile, the recognition of the personalities of
companies, and Civil Procedure.

In 1964 came the convention on Uniform Law of International Sale of Goods and Uniform Law on the Formation of contract for
the International Sale of Goods.
On June 9, 1967 was adopted the convention on the Recognition of Divorces and Legal Separations. Then came the Convention
on the Recognition and Enforcement of Foreign Judgment in Civil and Commercial Matters.
The Other noteable Conventions are:
a. The United Nations Convention on the Recovery Abroad of Maintenance, New York, dated June 20, 1956;
b. Convention on Choice of Court, dated November 25, 1965 (not in force)
c. Convention on the Service Abroad of Judicial and Extra-judicial Documents in Commercial and Civil Matters, dated
November 15, 1965;
d. Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions, dated November 15,
1965;
e. Convention Abolishing the Requirements of Legalization of Foreign Public Documents, dated October 5, 1961;
f. Convention on the conflicts of Law relating to the Forms of Testamentary Disposition, dated October 5, 1961;
g. Convention on the Jurisdiction of the Authorities and the Law Applicable in the Matter of Protection of Minors, dated
October 5, 1961;
 h. Convention concerning the Recognition and Enforcement of Decisions involving Obligations to Support Minor
Children, dated April 15, 1958;
i. Convention on the Law Applicable to obligations to Support Minor Children dated October 24, 1956;
j. Convention concerning Recognition of the Legal Personality of Foreign Corporation, June 1, 1956 (not in force).
k. Convention to Regulate Conflicts between the Law of Nationality and the Law of the Domicile, dated June 15, 1955
(not in force).
l. The Convention on Civil Procedure, dated, March 1, 1954 etc.

These international conventions can be part of municipal law only when the same have been recognized or incorporated in the
municipal law.

Theories of Private International Law

The Statutory Theory
In its original form in Italy
The statutory theory is the most ancient theory. Its origin took place in thirteenth century in Italy. The statutory theory of private
international law was propounded by Bartolus, who may be called the father of statutory theory.
A ‘statute’ was a declaratory re-statement of old customary law of the city and its commercial community. In the middle ages
‘statute’ indicated any law, legislative or customary, in an Italian city state which was peculiar to it and contrary to general law
prevailing in Italy. Statutes contained new legal rules also. Originally, the theory aimed at solving the conflict between the laws of
various city States one side and the law of city States and the Italian law on the other side.
The statutory theory, as Prof. Beale remarks, supposes two independent laws, effective at the same time and place, and subject to a
possible choice between them. It seeks to determine disputes by the allocation of any issue to his category as either real (statute
realia) or personal (statute personalia).
A personal statute was the one which mainly concerned persons, real statute was the one which concerned things, and the mixed
statute was the one which concerned acts, such as formation of a contract, rather than a person or things.
If the dispute is real, it is governed by the lex fori (Law of territory), if personal, the personal law of the party. Personal statutes
applied to persons domiciled within the territories of the State enacting those statutes and they continued to govern such persons
when they went to another State or Territories. Mixed statutes applied to all acts done in the country enacting such statutes, even
when litigation in respect of such acts was filed in another jurisdiction.
It is for this reason that the theory is nomenclature as ‘statute theory’. Apparently under this theory it seems to be very easy to
provide a solution to any problem of conflict of laws, but in practice, it is not so easy.
Though the theory appears to be very simple in its practical application it presents great difficulties. The greatest difficulty lies in
the determination as to which statute is personal, real or mixed.
French version of the Theory: The political organisation of France at this period of history was such that a study of rules of choice
of law became imperative. Different French provinces had different systems of laws, called coutume. Provincial laws differed from
each other , and , owing to inter-provincial trade and intercourse between the people of different provinces, the provincial laws
were in constant conflict with each other.
International Theory
The International theory of Public International Law supposes a single set of principles binding on all nations, by which the need
of any choice between two independent systems is avoided. It leads to suggest that there exists a universal and customary body of
rules on the conflict of laws to which municipal laws should conform. The international theory is that the conflict of laws is a
single system of uniform principles designed to resolve conflicts arising from the fact that individual municipal systems are
inherently diverse10.
Fridich Carl Von Savigny, the founder father of the international theory said the solution of the problem did not lie in classifying
the laws on the basis of their object, but in the ability to find out the seat of each legal relationship, as each legal relationship has its
natural seat in some local law.
According to Cheshire, the merit of the international theory lies “in the light of all relevant circumstances, they attempt to decide
each case according to the legal system to which it seems most naturally to belong.”
The most damaging criticism of the international theory is that it starts on the assumption that there is uniformity in the laws of the
countries on characterization of legal relations while in fact it is not so. This theory does not hold much water, as evidently it is
impracticable by virtue of the fact that the principle of sovereignty restricted the absolute application of universal principle in
matters involving conflict of laws. Besides, individual countries, by virtue of their sovereign rights, can ignore principles of the
supposed system of internationalists on grounds of public policy or positive municipal statutes.
Territorial Theory or Theory of Acquired Rights
The territorial or acquired rights theory originated with the Dutch jurist Huber, but it was elaborated in early twentieth century by
Common Lawyers: by Dicey in England and by Beale in the USA. This theory is based on the principle of territoriality.D'Argentre
places undue emphais on the real statutes and thereby gave birth to the territorial theory. Territorial theory was also named as the
theory of acquired rights.
The territorial law asserts that no law can exist as such except the law of the land; but that it is a principle of every civilized law
that vested rights shall be protected, and therefore that in each country it is sought to find what rights have arisen anywhere and to
recognize them, applying in all else the law of the land. It is based on the concept of sovereignty in its international sense. Its
underlying import is that the courts of any country apply only the law of that country, and that the laws of other countries will be
admitted and applied only to the extent permitted by the sovereign before whose courts the dispute is brought.
The very meaning of the term 'territorial law' has been misconceived by the protagonists of the acquired right theory. They give it a
very narrow meaning. Territorial law also include the rules of choice of law. According to Beale foreign law under which rights are
acquired does not include within its ambit rules of choice of law. This results into enforcement of rights of an entirely different
nature, which may not exist under the foreign law.
According to territorial theory, extraterritorial effect is given, not to the foreign law itself, but merely to the rights acquired under
it. Under the rules of choice of law of a country it may happen that a right which is unrecognised or repudiated by a foreign law
may be enforced by the court of the forum.
The Local Law Theory
The Local Law Theory is an offset of jurists of the realist school of jurisprudence. The Local Law Theory was expounded by
Walter Wheeler Cook.
Cook explains the theory thus: “No court even enforces foreign right as such. Under our system of the conflict of laws, an
American court when asked to give damages for an alleged foreign tort (wholly committed on some other state) will ‘apply’ the
substantive law of the other State in question. Although it is often said that the substantive law of the other state ‘governs’ the case
the word “governs” is misleading: an American Court does not hand over the case to the law of the foreign State for decision. If it
allows recovery, it merely decides on the ‘ground of social convenience to give a right to damages’ as nearly homologous as
possible to the right given by the foreign law.”
The supporters of the local law theory hold that the court of the forum recognises and enforces a local right, in other words, a right
created by its own municipal system. The court applies its own rules to the total exclusion of all the foreign rules. But, since it is
required to adjudicate upon a case involving a foreign element, it does not necessarily apply the rule of the forum that would
govern an analogous case purely domestic in character, but, for reasons of social expedience and practical convenience, takes into
account the laws of the foreign country in question. In a sense local law theory is the extreme application of the doctrine of
territoriality11.
The Local Law theory, is criticised, as a futile exercise in pure intellectualism. This theory is more than a sterile truth, sterile
because it affords no basis for the systematic development of Private International law.It provides no guidance whatever upon the
limits within which he must have regard to the foreign law. The theory indeed marks a retrogression from the more scientific and
more satisfying thesis of savigny.
Theory of Justice
In the words of Gravesar, the theory is “one of English legislative and judicial justice, based on a consideration of what English
statutes say and what English judges do in cases to which the conflict of law applies. It is thus both pragmatic and ethical.”
In its pragmatic aspect it endeavors to explain the rules of English private international law as they appear, while from the ethical
stand-point it attempts to draw from judicial decisions the broad principles of justice as realized by the English judge in their own
environment of time and place.
The premises of this theory are three-fold: sociological, ethical and legal. Sociologically it rests on the international need for fair
treatment in the private transactions of individuals. Ethically it reflects the traditions and training of English lawyers, judges and
legislators and expounders of the justice of their day and age. Legally it rests on the terms of the judge’s oath.
The American Revolution
The major theoretical developments of private international law over the last few decades have been taken place in the USA. They
are:

i. Governmental interest analysis

Currie, the father of Governmental interest analysis proposed that the court should examine the policies expressed in the rules of
substantive law in apparent conflict and assess the interest of the respective States in having the policies embodied in their rules
applied in a fact situation not restricted to the one State. If, on careful assessment, the rules, policies and interests are found to be in
conflict, a ‘true’ conflict, then the law of the forum is to be applied.

ii. Comparative impairment

Boxster propounded the approach of comparative impairment in 1963. The essence of this approach is: “the comparative
impairment approach to the resolution of true conflicts attempts to determine the relative commitment of the respective States to
the laws involved. The approach incorporates several factors for consideration: the history and current status of the States’ laws:
the function and purpose of those laws.”

iii. Principles of Preference

Cavers advocates the approach of Principles of preference in 1933. He suggested that the courts should develop broad principles of
preference: “The court is to seek a rule for choice of law or a principle of preference which would either reflect relevant multi-state
policies or provide the basis for a reasonable accommodation of the laws conflicting purposes. A principle of preference would be
applicable to all cases having the same general pattern of law and fact and would identify a preferred result on choice-of-law
grounds. If the case could not thus be generated, the court should state the reasons leading it to prefer one result to the other on
choice-of-law grounds. In either case it should apply the law leading to the preferred result.”

iv. Interpretation of Forum Policy

Ehrenzweig, while criticizing both the traditional jurisdiction – selecting approaches and the recent governmental interests
analysis- he proposed that a court, in searching for the appropriate choice of law rule, should give preeminence to the law of the
forum-an approach described as “interpretation of forum policy.”

v. Choice of Law factors

There are two American approaches to choice of law problems under which the applicable law is determined by reference to a
variety of choice of law factors12. Reese is the architect of this approach.

Characterization
Characterization of a given factual situation is one of the necessary steps in the decision of a case having some foreign elements.
The alternative word for characterization is classification, which is preferred by some English writers. In French law it is called
qualification.
The problem of characterization is one of the most complicated problems of private international law. Such is the diversity in the
laws of various countries of the world that at times characterization appears to be an unsolvable problem.
Nature of the problems of characterisation/classification in the conflict of laws
The problem arises from three factors:
1. Different legal systems attach to the same legal term different meanings. The conception of domicile in common law
and civil law countries is a typical example.
2. Different legal systems may contain ideas and concepts completely unknown to one another, e.g., the English idea of
the trust has no exact counterpart in civil countries.
3. Different legal systems apply different principles for the solution of problems which, in general terms, are of a common
nature, e.g., in succession to the goods of a deceased person, the rights of the beneficiaries are in English law governed by
the law of the testator’s or intestate’s domicile, while in most continental countries, by the law of his nationality.13

Characterization / Classification in the English Courts

1. The definition of legal elements: The characterization of any set of facts which give rise to a legal problem presupposes
a definition of the concepts, principles and rules. On the question of definition the rule of English law is clear. The
English Court defines any element of law relevant to a case according to English concepts.
2. The characterization/classification of the issues involved (factual situation): once the relevant legal elements have been
defined, it is possible to characterize the entire issue presented by the facts of a case into its appropriate legal pigeon-hole.
The difference between the two processes is one of degree rather that of kind; for classification of the whole issue may be
regarded as merely carrying one stage further the definition of the legal elements involved in the issue.
3. The definition of the connecting factor: once the relevant legal element in a case have been discovered and the whole
issue allocated to its correct legal category within the legal system of the forum, it becomes possible by the application of
the appropriate principle to private international law of the forum to decide whether the question before the court shall be
decided by English or by some foreign system of law.
4. The determination of existence, incidents and legal consequences of transactions containing a foreign element: once the
court has carried out the two processes of definition and classification, it is no longer concerned with the general natural of
the matter before it: it has already determined that. The duty of the judge is then to refer, through the appropriate
principles of English private international law, to the legal system which governs the transaction, in order to determine –
i. Whether any right, liability, interest or status has come into existence and remains in existence under the law
which creates it and that which governs it as the date of action.
ii. What are the incidents attached to any right, liability, interest or status by the law under which it arose and that
which governs it at the date of action.
iii. Whether an situation has been created under the relevant foreign law to which English Court is asked to attach
legal consequences14.

Theories of characterization or classification

1. The Lex Fori theory [Characterization on the basis of the Lex Fori]

Characterization on the basis of the Lex Fori was first propounded in 1891 by the German Jurist, Franz Khan, and six years later
rediscovered by the French writer Bartin, having as its chief modern exponent the late Professor Niboyet of Paris.
Bartin suggests that the problem of characterization can be solved on the basis of the following two rules:
i. A court dealing with the question of characterization, must invariably (subject to a few exception) apply and decide the
 issue on the basis of internal law.
ii. Once the court has determined that the law applicable is of a particular country or place, then the court should apply
that law as it is applied in that country or place, and it should also adopt any subsidiary characterization as might be
suggested by the law of the country or place.

In this formulation Bartin starts on the fundamental assumption that the basis for application of foreign law is the sovereign’
willingness to restrict its own sovereignty.
This theory would classify any particular rule or institution according to the law administered by the court in purely internal affairs
of its own legal system, since classification is part of the municipal law of a country.
To the rule that characterization is to be made on the basis of lex fori, Bartin admits two exceptions:

Whether the property is movable or immovable is to be characterized on the basis of lex situs; this is because, he
says, this rule would best subserve the security of transactions affecting property. This should not mean, he asserts, that
the law of situs is given sovereign authority.

When a contract is entered into by correspondence the governing law would be determined by reference to that law
which postpones its formation longest.

Since in Bartins formulation, the rules of private international law and rules of internal law are parts of the same
system, there is a definite inter relation between the two, both are to be interpreted in relation to each other.15

2. The Universal Analytical Theory

The propounders of the Universal Analytical Theory are Sir Eric Beckett and Dr. Rabel. The Universal Analytical Theory
proceeds to classify all legal elements on a basis of general, comparative, analytical jurisprudence. Uniformity of classification
would thereby achieve in whatever court a question of characterization arose. This theory would cut at the root of the whole
problem through its attempt to find in all modern systems of law certain common factors which could apply as universal principles
of classification.
The most obvious objection to the application of this theory in practice is the impossibility of finding common principles
throughout the whole field of modern legal system.

3. The Lex Causae Theory

Despagnet and Martin Wolff have propounded the theory of Lex Causae.
According to Wolff, “....every legal rule takes its classification from the legal system to which it belongs. French law classifies
French legal rules, Italian law Italian rules, and an English court examining the applicability of French rules will have to take the
French classification into consideration. Of course, of English rule on conflict of laws can either expressly or implicitly forbid the
court to accept the foreign classification. Such exclusion may be based, for example, on principles of justice of morality. But this
will be a rare exception. To examine the applicability of foreign law without reference to its classification is to fail to look at
foreign law at all. Bartin and his followers shut their eyes to good portraits and rest satisfied with a collection of caricatures”
Despagnet says that when a judge, drawing inspiration from his own law and the principles of private international laws decides
that a foreign law should be applied to a particular judicial relationship, he must be understood as applying such law so far as it
organises and regulates such relationship.
Criticising the theory, Cheshire says, “If the law which is finally to regulate the matter (i.e., the Lex Causae) depends upon
classification how can a classification be made according to that law?”
Answering the criticism of Cheshire, Wolff says, “In my opinion the criticism does not hold good, but is based merely on the
peculiar way in which conflict rules are framed”. For example: if two persons are married to each other the court has to apply all
those rules operative at their first matrimonial domicile which according to the law there prevailing regulate the effect of marriage
on the property of spouses.

4. Theory Of Two Fold Characterization (The Dual Theory Of Lex Fori And Lex Causae)
The origin of this theory may be fathered on Prof. Cheshire and Dr. Reberton. Both the writers maintain that problem of
characterisation can best solved by dividing the process of characterization into Primary Characterization (for the lex fori) and
secondary characterization (for the lex causae). The term lex fori is used in its wider meaning by the protagonists of this theory. It
does not mean the domestic rules of the forum alone, but it includes the rules of private international law also.
This Dual theory of lex fori and lex causae would make the allocation of the legal issue to its correct legal category exclusively a
function of the lex fori. Having established this primary classification, the court could then, through the legal principles of its own
conflict of laws which connects the facts of the case with some foreign legal system, determine the judicial nature of any legal rule,
institution or transaction by such foreign system, known as the lex causae.16

5. Comparative Law Theory [ Characterization On The Basis Of Comparative Law]

Rabel and Beckett have propounded the view that characterization should be governed by the analytical jurisprudence on the basis
of comparative study of law. Beckett asserts that characterization must be based on analytical jurisprudence.
For the purpose of characterization, Beckett divided the cases into three classes, namely,
i. Cases not involving characterization of a rule or institution of internal law;
ii. Cases involving characterization of rules or institutions or internal law;
iii. Cases involving characterization of rules or institutions of foreign internal law.

This theory has been criticized as given below:

This theory is vague and impractical, as there are very few principles of universal application and very little measure
of agreement as what they are.

Morris says this view is superficially attractive, because judicial technique in conflict cases should be more
cosmopolitan and less insular than in domestic cases.

The study of comparative law is capable of revealing differences between domestic laws, but of hardly of resolving
them.

6. The Autonomous Theory

Wolff postulates a simple principle of classifying every legal rule according to the legal system to which it belongs. According to
his theory, where a foreign rule has to be classified by the English Court, it should be done with reference to the whole foreign
legal system.

Codification of Private International Law

Codification can at first have very broad meaning: enacting a written formulation of the law17. It stands in opposition to non-
written law, such as custom. But custom itself is fashioned after judicial decisions and contractual practices, which gives it some
kind of a written formulation.
Since customary sources are scattered and difficult to assess, it is useful to codify them in order to bring them into a coherent
body. The sources of codification are either international or domestic. Almost all branches of law can be tackled in an international
agreement: not only branches of international law itself, but also various aspects of substantive domestic law, which have been
submitted to a process of unification or harmonization.
Private international law can be codified either at the international or at the national level. The codification of public international
law can only occur through an interstate agreement, but states are able to codify their own approach to foreign relations. In view of
the customary origin of international law, codifying that branch of law purports to give a comprehensive and as complete as
possible body of traditional solutions18.
The International Law Commission in the field of "public" international law, and the Hague Conference of private international
law in the "private" sphere are institutions whose mission is one of codification. The codification of international law, both public
and private, has never been so extended. What is called codification either at Geneva or at the Hague consists of choosing a
specific topic and bringing it into a written form. There does not exist either a thorough code of international law patterned after a
code civil, nor an international code of private international law. It produces a complete body of law, e.g. a civil or a penal code.
Up to now such an endeavor has not been done in the field of (public) international law, where codification is always restricted to
specific topics.
The second meaning is of a substantive nature and it draws a distinction between two policies of codification: either fixing existing
rules, for instance customary norms, or imagining original answers to new problems. National codes and international codification
can equally look backward or forward. Some codes have been blamed for their obsolete character. For instance the French Code
has been labeled as being dead before having been born. The German BGB also met with heavy criticism at the very moment
when it entered into force.
When drafting conflict of law rules, a state legislature is addressing its own judiciary, supposing they have jurisdiction in the case
at hand, because a state legislator is not a universal lawgiver. It faces a choice: either delineating the scope of application of its sole
substantive law or deciding what law, domestic or foreign, is applicable to the case. Some examples are in favor of the first choice:
under the wording of Article 3, section 3, of the French Civil Code, "the laws concerning status and capacity of persons govern
French citizens even residing abroad." However, in spite of the "unilateral" formulation of the conflict rule, the provision has been
applied analogically by submitting aliens to their own national law.

Hague Convention
"Both personal and commercial situations which are connected with more than one country are becoming increasingly common in
the modern world. These may be affected by differences between the legal systems in those countries. With a view to resolving
these differences, States have adopted special rules known as ‘Private International L.aw’ rules. The statutory mission of the
Conference is to work for the ‘progressive unification’ of these rules. This involves finding internationally-agreed approaches to
issues such as jurisdiction of the courts, applicable law, and the recognition and enforcement of judgments in a wide range of
areas, from commercial law and banking law to international civil procedure and from child protection to matters of marriage and
personal status.
Over the years, the Conference has, in carrying out its mission, increasingly become a centre for international judicial and
administrative co-operation in the area of private law, especially in the fields of protection of the family and children, of civil
procedure and commercial law.
Located in The Hague, The Netherlands, the Hague conference on Private International Law is an inter-governmental organization
with 81 Members: 80 States and 1 Regional Economic Integration Organization.
History
The First Session of the Hague Conference on Private International Law was convened in 1893 by the Netherlands Government on
the initiative of T.M.C. Asser (Nobel Peace Prize 1911). Prior to the Second World War, six Sessions were held (1893, 1894,
1900, 1904, 1925 and 1928). The Seventh Session in 1951 marked the beginning of a new era by the preparation of a Statute
which made the Conference a permanent intergovernmental organization. The Statute entered into force on 15 July 1955. Since
1956, regular plenary sessions have been held every four years.
Method of Operation
The principal method used to achieve the purpose of the Conference consists in the negotiation and drafting of multilateral treaties
or Conventions in the different fields of private international law (international judicial and administrative co-operation; conflict of
laws for contracts, torts, maintenance obligations, status and protection of children, relations between spouses, wills and estates or
trusts; recognition of companies; jurisdiction and enforcement of foreign judgments). After preparatory research has been done by
the secretariat, preliminary drafts of the Conventions are drawn at the Special Commissions made up of governmental experts. The
drafts are then discussed and adopted at a Plenary Session of the Hague Conference, which is a diplomatic conference.
The secretariat of the Hague Conference maintains close contacts with the Governments of its Member States through National
Organs designated by each Government. For the purpose of monitoring the operation of certain treaties involving judicial or
administrative co-operation, the Permanent Bureau enters into direct contact from time to time with the Central Authorities
designated by the States Parties to such treaties.
Member States
The following 43 States are Members of the Conference: Argentina, Australia, Austria, Belgium, Canada, Chile, China, Croatia,
Cyprus, the Czech Republic, Denmark, Egypt, Finland, France, the Federal Republic of Germany, Greece, Hungary, Ireland,
Israel, Italy, Japan, Latvia, Luxembourg, The former Yugoslav Republic of Macedonia, Malta, Mexico, Morocco, the Netherlands,
Norway, Poland, Portugal, Romania, the Slovak Republic, Slovenia, Spain, Suriname, Sweden, Switzerland, Turkey, the United
Kingdom of Great Britain and Northern Ireland, the United States of America, Uruguay and Venezuela.
States which have participated in one or more of the earlier sessions of the Conference may become members of the organization
by accepting the Statute. Other States must be admitted by vote. Admission is decided upon by a majority of Member States voting
on a proposal made by one or several of them19.
Institutional Structure
Plenary Sessions meet every four years in ordinary diplomatic session. In case of need, as occurred in 1966 and 1985, an
Extraordinary Session may be held. The Plenary Sessions discuss and adopt the draft Conventions (and sometimes
Recommendations) prepared by the Special Commissions and take decisions on the subjects to be included in the agenda for the
Conference's work. Decisions are taken by a majority of the votes cast by the delegations of Member States which are present at
the vote. Non-Member States invited to participate on an equal footing with Member States also have the right to vote. Under a
tradition which has been followed since the First Session, the President elected for the Plenary Session has always been the leading
Delegate of the Netherlands.
Secretariat
The activities of the Conference are organized by a secretariat - the Permanent Bureau - which has its seat at The
Hague and whose officials must be of different nationalities.

The Secretary General is assisted by three other lawyers: two Deputy Secretary Generals and one First Secretary.

The Permanent Bureau's main task is the preparation and organization of the Plenary Sessions and the Special
Commissions.

Its members carry out the basic research required for any subject that the Conference takes up. They also maintain
and develop contacts with the National Organs, experts and delegates of Member States and the Central Authorities
designated by the States Parties to the Hague Conventions on judicial and administrative co-operation, as well as with
international organizations and, increasingly, respond to requests for information from users of the Conventions.

Working of the Convention

Between 1893 and 1904 the Conference adopted seven international Conventions, six of which have been
subsequently replaced by more modern instruments.

From 1951 to 1993 the Conference adopted 32 international Conventions.

Until 1960 the Conventions were drafted only in French; since then they have been drawn up in French and English.

Among the texts which have been the most widely ratified are, the Conventions on Civil Procedure, on Service of
Process and on Taking of Evidence Abroad, the Convention Abolishing the Requirement of Legalisation for Foreign
Public Documents, the Convention on the Conflicts of Laws Relating to Testamentary Dispositions, the Conventions
dealing with maintenance obligations, the Convention on the Recognition of Divorces and Legal Separations and the
 Conventions on the Protection of Minors and on the Civil Aspects of International Child Abduction.

Some of the Hague Conventions deal with the determination of the applicable law, some with the conflict of
jurisdictions, some with the recognition and enforcement of foreign judgments and some with administrative and
judicial co-operation between authorities, and some combine one or more of these aspects of private international law.

From time to time, Special Commissions are held at The Hague to monitor the practical operation of Hague
Conventions, including the Hague Service and Evidence Conventions, the Hague Child Abduction Convention and the
new Adoption Convention.

The main topic for the Seventeenth Session held in May 1993 was the preparation of a convention on intercountry
adoption. Participation in this Session and the preparatory Special Commission meetings was open to certain non-
Member States of the Hague Conference invited for that purpose. The Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption entered into force on 1 May 1995.

The Conference has also become active in operational activities. In 1991 a Member of the Secretariat took part in a
mission of Experts which advised the Romanian Government on the implementation of the Convention on the Rights of
the Child regarding intercountry adoption, in 1992 the Hague Conference collaborated with UNICEF in the drafting of
a new law on child protection and adoption of children at the request of the Government of Albania and in 1993 it took
part in a mission organized jointly with UNICEF and UNHCR for the protection of the rights of unaccompanied
children in former Yugoslavia.

Resolution by Seventeenth Session

Resolution adopted by the Seventeenth Session of the Hague Conference on Private International Law in the presence of the
Ministers of Justice and High Representatives of the Member States of the Hague Conference meeting at The Hague, 19 May 1993
on the occasion of the celebration of the Centenary of the Conference considering that according to its Statute, the Conference's
purpose is to work for the progressive unification of the rules of private international law, Considering the unique, broad and
important work accomplished by the Conference and the effectiveness of its working methods confirmed by the fact that since the
Seventh Session in 1951 thirty-one Conventions have been drawn up, confirming that the Conference's mission is to facilitate both
the relationships between private parties across international borders and international legal transactions, recognizing that the
Conference also is developing into a worldwide centre in the service of international judicial and administrative co-operation in the
field of private law, and particularly in the area of child protection, considering however that it is essential that the Conference
continue to be effectively supported by its Member States within their Countries and in other international organizations,
Distinction Between Private and Public International Law
S.NO PUBLIC INTERNATIONAL LAW PRIVATE INTERNATIONAL LAW
Public International law is the body of legal rules, which Conflict of laws are often called Private International Law.
1 are applied between Sovereign States and other Private International Law regulates relationship between
International Personalities Private persons (Natural or Legal) of two different States.
Public International law rules are outcome of Private International law rules are framed by the State
2
International custom and treaties. legislature.
Public International law is enforced by international
Private International Law is enforced by the concerned
3 pressure and fear for, example – breakage of diplomatic
State executive.
relations, sanctions etc.
In public International Law there is no Predetermined
4 In private International Law courts are predetermined.
Court.
5 Public International Law is same for all the States. Private International Law differ from state to state.

Meaning of Foreign Law

For the purpose of PrTNivate International law the expression “foreign system of law” means a distinctive legal system prevailing
in a territory other than that in which the court functions. It includes the law existing in a state under a foreign political
sovereignty, and also the law prevailing in a subdivision of the political state of which the forum is part.
A case decided from a system of law which the court will apply to a purely domestic case, such law is called foreign law. This
may be the law of a country, or may be the law of a part of a country. For example, Quebec court may decide that law applicable
to the case is the law of India. From the point of view of Private International law, for the court of Quebec, the law India is a
foreign law20.
Reasons for application of foreign law

1. Comity of Nations
John Voet, Dutch Jurist , said that one nation applies the law of another to show its regards towards it. Time and again this view
has been taken by the English and Indian Courts, both private and public international laws as well as relations among nations are
based on comity.

2. Imparting justice
The function of the court is to impart justice between the parties and in doing so, if they feel that a foreign law is applicable, they
do so irrespective of the fact whether the other countries reciprocate or not and irrespective of the fact whether the other country is
at war with the country whose law is applied.

3. Determination of rights of the parties

In our contemporary world, 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.

List of references
Sr.No Details
1 V. C. Govindaraja - The Conflict of Law in India
2 Paras Diwan - Private International Law
3 Setalvad - Conflict of Laws.
4 S.K.Kapoor - Private International Law

1. Dr. S.R.Myneni, “Private International Law”, 1st Edition (2013) , Asia Law House
2. Dicey and Morris , “The Conflict of Laws” 8th Edition, Sweet & Maxwell publication
3. Supra N1
4. North P M & Cheshire G C, “Private International Law”, Butterworths, New Delhi, 13th edn. 2004.
5. Supra N2
6. Atul M Setalwad, “Conflict of Laws”, Lexis Nexis, New Delhi, 2007.
7. Paras Diwan and Peeyushi Diwan, “Private International Law” 4 th Edition (1998) Deep and Deep publication
8. Supra N1
9. Supra N7
10. Supra N4
11. Supra N2
12. Supra N1
13. Paras Diwan and Peeyushi Diwan, “Private International Law” 4th Edition (1998) Deep and Deep publication
14. Paras Diwan : Private International Law, fourth revised & updated edition
15. Dr. S.R. Myneni : Private International Law
16. Paras Diwan : Private International Law, fourth revised & updated edition
17. Supra N4
18. Arthur Kuhn, “Comparative Commentaries on Private International Law”, 1st Edition (1937) Macmillan Company
19. www.hcch.ne
20. Paras Diwan : Private International Law, fourth revised & updated edition.

Unit II - Jurisdiction

Course Outline of Unit II: Jurisdiction

This Unit contains discussion on following topics :
Jurisdiction - Choice of Law - Domicile - Residence - Renvoi - Forum Convenience

Disclaimer: This subject content as provided under AIR Online Education Support Suite is only Study (Reference) Material for
supplementing your Academic Classroom (Text Book) Learning. These are not Text Books on the Law Subjects.

Jurisdiction of Courts
Meaning of ‘Jurisdiction’
In the broadest sense jurisdiction connotes constitutional , legislative executive and judicial jurisdiction1.
‘Jurisdiction’ means the authority which a court has to decide matters that are litigated before it or to take cognizance if matters
presented in a formal way for its decision.
Jurisdiction is the power to hear and determine the particular case involved; the power of a Court or a judge to entertain an action,
petition or other proceeding; legal power of hearing and determining controversies. The term jurisdiction imports authority to
expound or apply the laws, and excludes the idea of power to make the laws; means
 i. The right to adjudicate on a given point,
ii. The local extent within which the court can and does do exercise the right when ascertained.

In private international law jurisdiction means competency of the domestic courts to hear actions and render decisions in matters in
which they are called upon to do so. In private international law most of the countries consider the question of jurisdiction as
pertaining to procedural law2.
In private international law, two types of questions arise:
i. Against whom an action can be filed, and who can file an action and
ii. What type of action may be filed.

The actions that may be filed in a court of law may be divided under three heads;
i. Action inter partes or personal action,
ii. Actions relating to property, and
iii. Action relating to status. In the last category of action are included suits and petitions in matrimonial causes,
guardianship, custody, adoption and legitimacy.
The question of jurisdiction in private international law is different from the question of jurisdiction in public international law.
In private international law jurisdiction means competency of the domestic courts to hear actions and render decisions in matters in
which they are called upon to do so. In private international law most of the countries consider the question of jurisdiction as
pertaining to procedural law. In an entirely internal suit the question of jurisdiction arises in a different manner. Ordinarily, a suit is
to be filed in that within whose jurisdiction the cause of acion arose.This is the place element of jurisdiction. Another question that
arises is as to which court, among the heirarchy of courts, can entertain a suit of that nature. This is the valuation element of the
jurisdiction.
Principles or basis on which the British Court assumes jurisdiction in the Private International
Law or the conflict of laws
The general doctrine of English law is the exercise of civil jurisdiction, in the absence of an Act of Parliament, must in all cases be
founded upon the principle of effectiveness or the principle of submission.

1. The Principle of effectiveness

The principle of effectiveness implies that a judge is precluded from pronouncing a judgment if he cannot enforce it within his
own territory. The elementary truth, as stated by Holmes J, is that the foundation of jurisdiction is, ‘Physical power’ is the guiding
factor at common law, although there are certain exceptional circumstances in which statutory jurisdiction may be assumed over
persons who are abroad and thus not within the power of the court. A power in this context means the physical power that exists
when the property which is subject matter of the legislation is in England or when the de cujus is present in England at the time of
the service of the writ, and generally speaking, it is true to say that an English court does not consider itself competent to
adjudicate upon a claim if neither of these elements is present. In such a case the maxim is ‘actor sequitur forum rei’ and the
plaintiff has no alternative but to sue the defendant in the country where he happens to be.

2. The principle of submission

The principle of submission signifies that in a limited number of cases a person may voluntarily submit himself to the judgment of
a court to whose jurisdiction he would not otherwise be subject. If he does so he cannot afterwards say that the judgment of the
court is not binding upon him. Such submission may even be inferred from conduct.
Where private international law directs that some foreign court shall have exclusive jurisdiction, the principal of submission, has
no application. For instance, a husband or wife domiciled abroad is not permitted at common law to institute a suit in England for
the dissolution of marriage, since divorce jurisdiction resides exclusively in the court of the domicile. Again, it is not always
possible in given circumstances to ascertain with certainty from the reported decisions what acts constitute a submission to the
authority of the court.
Who can File an Action?
Jurisdiction of courts deals with two items
i. Against whom an action can be filed and who can file an action and
ii. What types of actions may be filed.

English Law
The general rule is that all persons may invoke or may become subject to the jurisdiction of the English Courts even though they
are foreign by nationality or by domicile even though the cause of action has arisen abroad or is otherwise intimately connected
with the foreign country. However under English Law, except the alien enemy, any person can file an action or other proceedings
in any English Court3.
At Common Law , ‘alien enemy’ means any person who voluntarily resides or who carries a business in an enemy or enemy
occupied territory during a war in which the United Kingdom is engaged.
Indian Law
In India, except the alien enemies, all others can file a suit or other proceedings in an Indian Court. The same is the position of a
foreign corporation.
Section 83 of the Code of Civil Procedure lays down that 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 country. As per the
explanation to the section every person residing in a foreign country the Government of which is at war with India and carrying on
business in that country without a licence in that behalf granted by the Central Government, shall, for the purpose of this section
(i.e., Sec. 83), be deemed to be an alien enemy residing in a foreign country. It is necessary that India must be in war with that
country.
The term alien enemy includes not only the citizens of the enemy country but also citizens of India as well as of neutral countries
who are voluntarily residing in that enemy country.
In Ali Jan v. Abdul Zallil Khan [AIR 1920, Lah., 4] it has been held that the test of ‘alien enemy’ under Indian Law is that either a
person has his residence in an enemy country or that he carries on business in enemy country; nationality is of no consequence.
The residence must be voluntary; a prisoner of war cannot be called an alien enemy.
In Prem Pratap Singh v. Jagat Pratap Kunwar [AIR 1944 All 97], it was observed that residence need not be permanent one though
it should not be fleeting or casual residence. Just because a person has been interned by the Government of India, he does not
become an alien enemy.
Section 85 of the Civil Procedure Code provides facilities to foreign ruler to prosecute or defend suits through recognized agents
specially appointed in that behalf. The section does not require that notice should be given to the opposite party before a certificate
is granted. When the consent of the Government is sought to sue a ruler, the latter can ask the government for permission to be
represented by an agent in the section.
Section 85 reads as under:
1. “The Central Government may, at request of the Ruler of a foreign State or at the request of any person competent in
the opinion of the Central Government to act on behalf of such Ruler, by order, appoint any persons to prosecute or
defend any suit on behalf of such Ruler, and any persons so appointed shall be deemed to be the recognized agent by
whom appearances, acts and applications under this code may be made or done on behalf of such Ruler.
2. An appointment under this section may be made for the purpose of a specified suit or of several specified suits, or for
the purpose of all such suits as it may from time to time be necessary to prosecute or defend on behalf of such Ruler.
3. A person appointed under this section may authorize or appoint any other person to make appearances and applications
and do cats in any such suit or suits as if he were himself a party thereto.”

Choice of Law
Once the court comes to the conclusion that it has jurisdiction then in a conflict of laws i.e. cases having foreign element, under
which law the suit shall be decided whether by law of Forum (i.e. internal law) or whether some foreign law will apply. This is
known as choice of law. Suppose Indian courts come to conclusion that it has a jurisdiction on to try the case then the quest before
it would be reference to law of which country or place the suit would be decided.
If the suit is filed for damages for breach of contract entered into by Burmese resident trader & Chinese resident trader in Dhaka
for supplies to reach to Calcutta the quest before court then is which law is to be applied ;Law of Burma or Law of China or Law
of Bangladesh or Law of India.
Ex. A wife files a petition for judicial separation in an Indian Court u/s 10 of Hindu Marriage Act on the ground of desertion. Both
the parties are Indian domicile but they got married in England , while they went to Japan the husband deserted her there.Does the
Indian Court have jurisdiction to try the suit? The quest of Choice of law is to be determined in all such quest cases of Indian
private international law. It is not a province of private international law to say which rules of Foreign law are to be applied.
Action before English Court may be –
1. Contract made or tort committed abroad.
2. Validity of the will trade by a person who died domiciled abroad.

Application of Foreign Law (Jurisdiction)

Introduction
A court which adjudicates a case, is required to determine two sets of questions: question of fact and question of law. In a case
having some foreign element that some set of questions usually arise.i.e., the question of law, and the question of facts
Foreign law as a question of fact
In respect of the application of foreign law is: whether the question of application of foreign law is a question of law or a question
of fact. The common law countries take the view that the question of foreign law is a question of fact in the same manner as any
other question of fact. In determining the question of fact, the parties may prove is by evidence, oral, documentary or of expert
witness and the burden of proving the foreign law lies exclusively on the parties.4
English law relating to foreign law as question of fact
The established rule is that knowledge of foreign law even of the law obtaining in some other part of the common law world, is not
to be imputed to an English Judge even though the foreign law is notorious, it has been said that the court cannot take judicial
notice of it.
Before 1972, it was an established rule of English private international law that a rule of foreign law could not be proved by
referring to a judgment of foreign court or by referring to a foreign judgment in which the meaning and effect of foreign law is
explained.
After enacting the civil evidence act, 1972, the application of foreign law has been altered. Section 4 of the act lays down that if
any question of foreign law has been determined in civil and criminal proceeding at the court of first instance.
Witness who can prove foreign law
English law takes the view that no witness can speak to a question of law as a fact and that all he can do is to express his opinion.
The rule is that he must be experts. The question as to who is a sufficient expert has not been satisfactorily resolved by the English
decisions.
The role of the court
When an expert witness is called by either party and he in his testimony tenders a copy of foreign statute, rules or decisions of
court or refer to a book of law, then such material becomes part of evidence, and the court is free to pursue it. However, the court
is entitled to look into such documents only to the extent it has been cited by the party or his witness.
Indian law regarding foreign law as question of fact
The Indian law accepts the English law and lays down that the foreign law is question of fact. Section 45 of the Evidence Act,
1872 provides that:
“ when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger
impressions, the opinions upon that point of persons specially skilled in such art foreign law; science or art, or in questions as to
identity of handwriting or finger impressions are relevant facts.” In Indian law the burden of proof is on the party setting the plea
of foreign law.
The Suganchand Bhikimchand v Mangibhai Gulabchand [1942 Bom.185]
It has been pinioned that a judgment of the highest court of a foreign country is the best evidence as to the law of that foreign
country.

Exclusion of Foreign Law ( Limit of application of foreign law)

Under certain circumstances, private International law of a country applies foreign law. However the application of foreign law is
excluded due to :
i. Ordre Public i.e. Public Policy.
ii. Being penal law.
iii. Revenue law.

Thus, under the English private International laws, the application of otherwise applicable foreign law may be excluded under the
following heads:
i. Foreign law is against the public policy;
ii. Foreign law is penal law;
iii. Foreign law is revenue law; and
iv. Mandatory rules.

Public Policy
Meaning
According to Graveson, ‘Public Policy’ is an indefinite concept which indicates those matters regarded by parliament or the court
as clearly of fundamental concern to the State and Society at large.
Public policy is equivalent to the ‘policy of the law’. It is applicable to the spirit as well as the letter. Whatever tends to injustice of
operation, restraint of liberty, commerce and natural or legal rights, obstruction of justice, violation of statute, against good morals
is against public policy.
Foreign law repugnant to the English Public Law
The English law relating to preclusion of foreign law by operation of doctrine of public policy is formulated by Dicey and Morris
thus, “the court will not enforce or recognise a right, power, capacity, disability or legal relationship arising under the law of a
foreign country, if the enforcement or recognition of such right, power, etc would be in consistent with the fundamental public
policy of English law”.
It is well established principle that any action brought in England is subject to the English doctrine of public policy.
The areas where the doctrine of public policy has been applied
i. International relations
 ii. Trading with an alien enemy
iii. Contracts in restraint of trade
iv. Liability of permanent maintenance of illegitimate children

English Ideas of Justice and Morality

For English courts the overriding test of fairness and honesty is the English conception. Transactions denied enforcement under
the principles of justice and morality fall into three main groups:
i. Contracts tainted with immorality in a wide sense: it cannot be doubted that a contract or other transaction which is
objectionable in English eyes on the ground that it tends to promote immorality will not receive judicial recognition in
England, though it may be innocuous according to its foreign lex causae.
ii. Acts contrary to English ideas of Justice: justice in this connection at times bears a wider meaning of natural justice,
and applies particularly in the recognition and enforcement of foreign judgement.
iii. Foreign Confiscation and requisition of a property : with regard to the recognition of title to property based on a foreign
confiscatory decree, English Court generally adhere to the territorial concepts of State power i.e. that a foreign state has
authority to deal with all matters within its territory, but (apart from questions of the personal law) not beyond.

Foreign Penal Laws

‘Penal law’ imposes punishment for an offence against the State or some division thereof. The imposition of a penalty reflects the
exercise by a state of its sovereign power. Penalty is a fine or other exaction imposed by the State for some violation of public
order of criminal complexion.
Enforcement of Foreign Penal Law
From very beginning the English courts have taken the view that the foreign penal law cannot be enforced. The common law has
always considered crimes as entirely local and cognizable and punishable exclusively in the country where they are committed.
Recognition of Foreign Penal Laws
Although enforcement of foreign penal laws will not be allowed, the English courts are not precluded from taking notice of foreign
penal laws under the doctrine of public policy.
Mandatory Rules
Mandatory rules of the forum are domestic rules which are regarded as so important that as a matter of construction or policy they
must apply in any action before a court of the forum, even where the issues are in principle governed by a foreign law selected by a
choice of law rule.
English Law of Extraterritorial Operation
Unless an English statute expressly or by necessary implication is intended to operate outside England, it will be given a strictly
territorial effect certain statutes e.g.,
1. Wills Act, 1861;
2. Bills of Exchange Act, 1882;
3. Merchant Shipping Act, 1894;
4. Bankruptcy Act, 1914 -26;
5. Foreign Judgment (Reciprocal Enforcement) Act, 1933;
6. Matrimonial Causes Act, 1950
-- Deals expressly with problems of private international law and certain provisions of choice of law or of jurisdiction.

Foreign Revenue Laws

‘Revenue law’ is a law requiring a non-contractual payment of money or kind in favour of the State or some department or
subdivision thereof. Thus, laws imposing income-tax, custom duty, stamp duty, succession duty, municipal contribution, capital
gains tax, compulsory contribution to the State insurance scheme and a profit levy have been held to be revenue laws.
Enforcement of Revenue Laws
Ever since Lord Manfield’s remarks in Holman v Johnson, [(17750 1 Cowp 341)], that no country takes notice of the revenue laws
of another’ it has been traditional view that no action for the recovery of a tax, public or local, including such forms as customs,
excise and death duties, or other monetary imposition levied by a foreign State with a foreign Municipal authority.
Indirect Enforcement
The rule that no action lies to recover foreign taxes is not affected by the identity of the claimant or by the form in which the action
is brought. In every case the substance of the claim must be scrutinised, and if it then appears that it is really a suit brought for the
purpose of collecting the debts of a foreign revenue it must be rejected.
The indirect enforcement of foreign revenue laws under the cover of foreign judgments is excluded by the Administration of
Justice Act, 1920 and the Foreign Judgements (Reciprocal enforcement Act, 1933).
Recognition of foreign Revenue Laws
For a long time the observation of Lord Mansfield “ No country ever takes notice of the revenue laws of another” was accepted by
courts. The dictum gradually eroded and by now it was totally washed away.
As regard foreign currency legislation e.g., foreign exchange control, although such regulations may be accompanied by a sanction
of criminal law, that fact does not per se preclude their recognition in England unless it gives to the foreign law the character of
confiscatory legislation.
Indian Law
In India rules relating to jurisdiction in action inter partes are laid down in Sec.19 and 20 of the Civil Procedure Code. Sec. 19 is
confined to suit for compensation for wrongs to person or movables. Under Sec.20, the Indian courts can exercise jurisdiction in
inter partes actions in the following four circumstances:
1. When the permanent or temporary residence of the defendant is within the jurisdiction,
2. If the defendant is engaged in some business within the jurisdiction,
3. If the defendant is working for gain within the jurisdiction,
4. If the cause of action, wholly or in part, arises within the jurisdiction.

It is submitted that the Indian court should not construe strictly the requirement of residence in Private International Law cases, nor
should it exercise jurisdiction over persons on whom process has not been served just because cause of action arises within
jurisdiction. It is well established rule of Indian Law and International Law that if the defendant is resident within the jurisdiction
the court will have jurisdiction to entertain the suit.
There has been a consistent view of Indian courts that if the defendant is carrying on business personally or through an agent, then
the Indian Courts have jurisdiction, irrespective of the fact whether cause of action did not arise within the jurisdiction or that the
defendant was not present within the jurisdiction. In Haveli Shah v. Khan Sahib Shaikh Painda Khan [AIR 1926 PC 88] where the
cause of action against the defendant residing in Punjab arose in Perisa but the defendant carried on business in Quetta (then in
India), the Privy Council held that the defendant could be sued in Quetta.
Submission to jurisdiction
If a person is outside the jurisdiction, the court will have jurisdiction on him only if he submits to the jurisdiction of the court. In
case the defendant does not submit to the jurisdiction of the court, then the judgement delivered in his absence would be null and
void (Shaik Athama Sahib v. Davud Sahib [(1909) 32 Mad 469]).
If the defendant puts up appearance in the court, then the appearance to amount to submission, must be unconditional; he must
unequivocally submit to the jurisdiction of the court. Only full participation by the defendant in the proceedings amounts to
submission to jurisdiction. The waiver of objection to the jurisdiction of the court also amounts to submission to jurisdiction. In
Bahrein Petroleum Co. Ltd v. P.J. Pappu [AIR 1966 SC 634] the Supreme Court observed that it is possible to say that long and
continued participation by the defendant in the proceedings without any protest may, in an appropriate case, amount to a waiver of
objection to jurisdiction.
Against whom suit may not be filed: Jurisdictional immunity
Although as a general rule an action can be filed against any person who is present within the jurisdiction, there are certain persons
who enjoy jurisdictional immunity and therefore, suits cannot be filed against them. The following enjoy jurisdictional immunity:
1. Foreign state, its head and its departments;
2. Persons entitled to diplomatic immunity; and
3. Officials of international organisations including United Nations and its organs.

Foreign State and the Foreign Sovereign : The rule of immunity of foreign state and its head has been derived from the English
law maxim 'par in parem non habet imperium' and from the rules of public international law. The principle of sovereign immunity
is now an internationally recognized principle. The immunity from jurisdiction of the foreign sovereign exists in respect of his
person and property. The personal immunity of the sovereign is almost unlimited. If the question before the court is not of the
jurisidictional immunity of the sovereign but of the existence of sovereignty in some other connection, the court is not bound by
the statement of the foreign office or commonwealth office that foreign government concerned is not recognized by the Crown. In
such a situation actual facts are decisive. The jurisdictional immunity does not extend to the sovereign of the State which is not
recognized by the Crown. However, if the foreign state is recognized provisionally or de facto that is enough to confer immunity.
Indian law of jurisdictional immunity is primarily based on English law, though in some minor details it makes some departure
from it. Sec. 84 to 87A of the Civil Procedure Code deal with this matter. Sec. 84A(1)(a) defines, "Foreign State" as "any state
outside India which has been recognized by the Central Government". Sub-section(2) of Sec. 87A lays down:
Every court shall take judicial notice of the fact:
1. That a state has or has not been recognized by the Central Government;
2. That a person has or has not been recognized by the Central Government to be the head of a State.

The Indian Law has been codified. Sec.86, Civil Procedure Code confers jurisdictional immunity to (a) ruler or head of a foreign
state,(b)ambassador or envoy of a foreign state, (c) High Commissioners of the Commonwealth States, and (d) members of the
staff or retinue of the head or ruler of the foreign state, ambassador, envoy or High Commissioner, as the Central Government may,
by general or special order specify in his behalf. These persons cannot be sued in any court in India except with the consent of the
Central Governement certified in writing by a Secretary to the Government. The jurisdictional immunity extends to all civil actions
as well as to execution proceedings. The aforesaid person cannot be arrested under any provision of the Code of Civil Procedure.
The Central Government will give consent only in the following cases:
1. When the foreign state, etc has instituted a suit in the court against the person desiring to sue,
2. When the foreign state by itself or with another trades within the local limits of the jurisdiction of the court,
3. Went the foreign state is in possession of immovable property situated within those limits and is to be sued with
reference to such property or for money charged thereon, or
4. When the foreign state has expressly or impliedly waived the privilege accorded to it.

The Indian law lays down that even when a foreign Ruler is sued, the suit is to be in the name of the foreign state whose ruler he
is, though the Government of India may direct that the Ruler may be sued in the name of an agent or in any other name.

Domicile – Meaning
Definition of ‘Domicile’
According to Tomlin’s Law Dictionary, ‘Domicile’ is the place where a man has his home.
As per Halsbury’s laws of England. “A person’s domicile is that country in which he either has or is deemed by law to have his
permanent home. Domicile is generally identified with home, but whereas a person may have no home or more than one, law
requires him to have a domicile and one only”.
The early concept of domicile was linked with the place where the person had his permanent home. Therefore the basic fact from
which conception of domicile is evolved has reference to the place where the person has his permanent home5. The concept of
domicile has its origin in the necessity to determine the system of law where by his personal status of human being should be
governed. If, therefore, the place where the person has his permanent home is a part of a particular country, the system of law
governing the personal status of a human being in that country would be the system of law whereby that person would also be
governed. This result is expressed also by stating that person has his domicile in the country where he has his permanent home
lies, Hence, Cheshire states – “Domicile denotes the relation between a person and a particular territorial unit possessing its own
system of law.”
Domicile is the concept employed by English law to establish the legal relationship between an individual and the legal system
which in the view of English Courts can most justly claim to constitute the personal law of that individual. The adoption of
domicile in English law as the personal law of an individual is based on the sound reasoning that the law of the community in
which a person lives and makes his home is the one most appropriate to govern his personal status and relationship as a permanent
member of that community.
In the English private international law the concept of domicile is different from the notion of permanent home. A person can
acquire a domicile at a place only if he resides there permanently or indefinitely with an intention to live there permanently and
indefinitely6.
Based on domicile is the principle of individual liberty, an individual is free to establish his domicile at any place in the world.
The national boundaries are not a hindrance in his choice of domicile. This implies that a person may have his nationality in once
country and domicile in another. This also implies that though a person may be stateless he cannot be without a domicile . He must
be domiciles at some place [Michael Anthony Rodrigues v. State of Bombay and others, AIR 1956 Bom 729].
A marries B and establishes his matrimonial home at Jaipur. After some time a son C is born to him. Jaipur is the domicile of A ,
Jaipur is the domicile of B , as in Indian law the domicile of wife is her husband’s domicile. Jaipur is also the domicile of C, as C
is dependent of A. C’s domicile will remain Jaipur so long as he remains a minor. If A changes his domicile, the domicile of B and
C also changes .
The 19th century witnessed the rise of nationalism on the European continent and soon it began to be propogated that law of
nationality should govern all personal matters. The arch protagonist of this view was Italy's P.S.Mansini. In his famous speech of
1851, delivered at the University of Turin, he propounded his thesis and spoke with vigour and conviction in favour of law of
nationality. According to his thesis laws are made for an ascertained number of people and not for a specified area. The greatest
responsibility of a sovereign are his subjects. When laws are made, then not only the moral and material qualities and needs of
subjects but also the climate and fertility od the land is taken into consideration.
Important cases related to Domicile
In Ramsay v. Liverpool Royal Infirmary [(1910) AC 588], a person died leaving behind a will which formally was valid under
Scottish law, though invalid by law of England. The testator was born in Glasgow in 1845 and thus had a Scottish domicile of
origin. From 1892 till his death in 1927 he lived in Liverpool England. During these 37 years he never went to Scotland. Only fact
that still connected him with Scotland was that he often said that he was very proud to be a Glasgow man. As against this, he on
several occasions, refused to go to Glasgow. He did not go to attend the funeral of his mother at Glasgow and arranged for his own
burial at Liverpool. The House of Lords unanimously held that it was not proved that he made Liverpool his permanent home and
therefore he continued to have his Scottish domicile of origin.
In Jayaswal Shipping Company v. SS Leelavati [AIR 1954 Cal 415, 420], it has been held that “Domicil” is a legal term whose
contours have often been found to be vague in jurisprudence. In England, the English and Scottish domiciles are different. The
existence of ‘one system of law’ is a valid criterion for determining the area of domicile. The whole of the Indian Union should be
regarded as the area of domicile where in ‘one system of law’ prevails with Indian Parliament holding all residuary powers of
legislation in spite of the existence of different State statutes on specified subjects.
General Principles or rules in respect of Domicile
Under English and Indian Private International Law, the following are the general principles/rules of ‘domicile’.

1. No person can be without a domicile

Every person must, at all times, possess a domicile. This is based on the practical necessity of connecting every individual with a
system of law so that his legal relations may be regulated. A person has freedom to change his domicile but he has no freedom to
be without a domicile (Udny v. Udny [(1869) LR 1 SC and Div. 441]). Even when a person is actually homeless the law attributes
a domicile to him. Thus every person has a legal domicile.
In order to deal with a difficulty of ascertainment of a domicile of persons who are either incapable of deciding matters for
themselves, such as young children, or who are of a roving disposition. English Courts have developed principles for the
attribution of a domicile to every person. Thus, the law assigns what is called a domicile of origin of every person as his birth. The
domicile will stick to him till he adopts another domicile so much so that if a person leaves his country of origin with an intention
to live in another, nevertheless his domicile of origin adheres to him until he actually acquires another (Kedar Pandey v. Narayan
Bikram [AIR 1966 SC 160]).
On his birth a person acquires the domicile of his father in case he is a legitimate child and domicile of his mother in case he is
illegitimate.

2. No person can have simultaneously two domiciles

A person cannot have at the same time more than one operative domicile. It is because law in fixing domicile of a person connects
him with a system of law and if a person is allowed to have more than one domicile that purpose will be frustrated (Udny v. Udny
[(1869) LR 1 SC and Div. 441]). Since the object of the law is insisting that no person shall be without a domicile is to establish a
definite legal system by which certain of his rights and obligations may be governed, and since the facts and events of his life
frequently impringe upon several countries, it is necessary on practical grounds to hold that he cannot possess more than one
domicile at the same time.
The Indian Constitution recognizes only one domicile (Pradeep Jain v. Union of India [AIR 1984 SC 1420]), It is exceptionally
possible for a person to have two domiciles, such as when a person may retain his domicile of origin and may also acquire a
domicile of choice. Some countries recognized dual domicile.

3. Domicile denotes connection with a territorial system of law

The English conception of domicile is based on a person’s relation with a territorial legal unit, and no consideration of personal law
resulting from adherence to a religious set.
The rule about domicile is evolved on account of the universal recognition the questions affecting the personal status of a human
being should be governed constantly by one and the same law, irrespective of where he may happen to be or where the facts giving
rise to the question may have occurred.
In some countries it may happen that laws relating to succession and marriage might not be the same all over the country, and that
different areas in the State might have different laws in respect of these matters. In that case, each area having a distinct set of laws
would itself be regarded as a country for the purpose of domicile.
In a country like United Kingdom, domicile of United Kingdom has no meaning. A person is either domiciled in England, Wales
or Scotland. The same is true about the United States, Canada, Australia. In India the position is different. A person may be
domiciled in India. But that would not be enough. It would also be necessary to find to which community he belongs , as in India
personal laws differ from community to community7.

4. Presumption is in favour of continuance of an existing domicile

In both the Indian and the English private International laws there is a presumption in favour of the continuance of an existing
domicile. The burden of proving a change lies in all cases on those who allege that a change of domicile has taken place (Casdagli
v. Casdagli [(1919) A.C. 145]). This presumption may have a decisive effect, for if the evidence is so conflicting or indeterminate
that it is impossible to elicit with certainty what the residents intention is, the court will decide in favour of the existing domicile.
The House of Lords, in Winans v. A.G [(1904) AC 287] took the view that the domicile of origin continues to exist till the end.
Distinction Between Domicile And Nationality
1. ‘Nationality’ is membership or condition or status of belonging to a State of Nation, either by birth or naturalization
whereas ‘domicile’ is the permanent place or dwelling or home of the person concerned.
2. Nationality depends apart from naturalization, on the place of birth or on parentage; domicile is constituted by residence
in a particular country animo manendi.
3. By virtue of which a person becomes the subject of some particular country, binding him by the tie of natural allegiance
is considered by his political status or nationality, while by virtue of which he enjoys the character of a citizen of some
particular country as such is possessed of certain municipal rights, and subject to certain obligations is considered as his
 civil status or domicile. The civil status of a person is, thus, governed universally by one single principle viz., that of a
domicile.

Domicile of Independent Person

Domicile of an independent natural person may be divided into;
i. Domicile of origin
ii. Domicile of choice

Domicile of Origin
A domicile of origin is that which every infant has upon attaining majority, being the domicile of parent at that time. Domicile of
origin is also called ‘Domicile of Nativity’ as every person at birth acquires a domicile of origin. It continues to exist so long as he/
she does not acquire another domicile. The moment a person gives up his domicile of choice, his domicile of origin revives
(Harrison v. Harrison [(1953) 1 W.L.R 865]). Since domicile of origin is attributed to every person at birth by operation of law, the
basis of domicile of origin is paternity or maternity.
According to English Private international law a legitimate child born during the lifetime of father has his domicile in the country
in which his father was domiciled at the time of his birth. A legitimate child born after the death of his father has domicile in the
country in which the mother was domiciled at the time of his birth (Somerville v. Somerville [(1801) 5 Ves. 750]). The domicile of
origin is not dependent upon the place where a child is born, not on the place where its father or mother reside, but on the domicile
of the father or mother , as the case may be.
Domicile of origin is a creature of law and no person can give it up totally8. For the revival of the domicile of the origin it is
necessary that the domicile of the choice should be abandoned voluntarily.
In an Indian case, Sankaran Horindan v. Lakshmi Bharti [AIR 1964 Ker. 244], One Krishnan domiciled in India went to England
for higher education in 1925. After some time his parents declined to give him any further financial support. With the help of an
English friend , Miss Hopeworth he completed his studies in 1939 and set up his private practice in medicine in Sheffield. He
earned a fortune. He purchased a mansion in Sheffield where he shifted his practice. In 1950 Krishnan died in England. Krishnan
lived in England for 30 years and during this period he not for once he came to India. But in his letters to his friends he expressed
his intention of returning to India . On these facts the Kerela High Court came to the conclusion that Krishnan did not abandon his
domicile of origin.
Domicile of Choice
Any independent person may acquire a domicile of choice. Whether a person has capacity to acquire a domicile of choice is
determined by the law of his existing domicile. For the acquisition of domicile of choice the following two conditions must be
satisfied:
1. Residence in the country of domicile of choice
2. Intention to live in the country of domicile of choice permanently (Gour Gopal v. Sipra Roy [AIR 1978 CAL. 163]).

“Residence” is an elastic term of which no exhaustive definition is possible. The word ‘residence’ has a time element in it, but it
does not necessarily mean that a person must have been residing in the same home or at the same place for a considerably long
period. If a person leaves the place of his present domicile with a view to settle in another country, then the moment he sets his
foot in that country he acquires a domicile there (Matalon v. Matalon [(1952) p. 233]).
“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 fickle and must be directed towards one particular place or country.
A person ‘A’ who leaves the country of his domicile of origin with a view to settle in country X, Y, or Z does not have an intention
to acquire domicile in any one of these countries. But a person who decides to spend the rest of his life in a country X is a person
who acquire domicile in that country.
Residence
Residence is a wide term of which no exact definition is possible ‘Domicile’ may mean place where a person eats, drinks and
sleeps or where his family or servants eat, drinks and sleeps or where his family or servants eat, drink and sleep. It has also been
construed to mean ‘dwell permanently or for a considerable time.
Residence in a country is prima facie evidence of domicile, the presumption of domicile in favour or residence becomes stronger
with the length of residence. However, mere long residence is not enough for acquisition of domicile, nor does the brief residence
negative domicile.
A person may be resident in a country even though he is living in hotel and staying there for a particular purpose e.g., for
conducting business, taking part in legal proceeding, etc.
If a person leave the place of his present domicile with a view to settle in another country, then the moment he set his foot in that
country he acquires a domicile there.9
Intention
The acquisition of domicile of choice taken when a person resides in a country with an intention of remaining there permanently.
Intention is an intangible fact. It is an act of mind and it is difficult to prove.
For the purpose of acquisition of domicile intention to reside at a place or in a country should be to reside there permanently or for
an unlimited time. The weight of authority in English law defines the mental element necessary for the acquisition of a country of
residence.
The intention must be bona fide in the sense of being genuine and not pretended for some other purpose, such a getting a divorce
to which one would not be entitled by the law of the true domicile.
Distinguish between domicile of origin and Domicile of choice
When compared, following are the differences between the domicile of origin and domicile of choice:
1. The domicile of origin comes into existence by operation of law, independently or violation of a person and every
person gets it on birth on the other hand, the domicile of choice is a domicile which is acquired by the free volition of the
person concerned.
2. There is the strongest possible presumption in favour of the continuance of domicile or origin. As contrasted with a
domicile of choice its character is more enduring, it holds stronger and less easily shaken off. In fact, almost
overwhelming evidence is required to shake it off.
3. Domicile of origin cannot be abandoned easily as done in the case of domicile of choice. Since the domicile of origin is
a creature of law and not of free will, domicile of origin cannot be lost by mere abandonment.
4. If the domicile of origin is displaced as a result of the acquisition of domicile of choice, the rule of English law is that it
is merely placed in abeyance for the time being.10

Domicile of Dependents [Domicile of dependence by persons under disability]

The domicile of dependence, or the domicile conferred on persons legally dependent is one which arises by operation of law. It
applies particularly to children and mentally disordered persons and married women.
A child’s domicile of origin
child acquires at birth a domicile of origin by operation of law viz., if legitimate and born in his father’s lifetime, the domicile of
his father, if illegitimate or born after his father’s death, the domicile of his mother.
Domicile of minor
For the purpose of domicile the minority in Indian law continues till a person attains the age of 28 years, while in English law,
under Section 3 of the Domicile and Matrimonial Proceedings Act, 1973, minority terminates on the attainment of 16 years or on
marriage.
Domicile of Married Women
In English law, a married woman is to be treated as capable of acquiring a separate domicile; though in the vast majority of cases
she and her husband will, independently, acquire the same domicile. It is quite possible for happily married spouses to have
separate domiciles.
In the Indian law, section 15 and 16 of Succession ACT, 1925 provides, the general rule thus; on marriage the wife acquires the
domicile of her husband and during covertures 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.

Domicile of a Corporation
A corporation is a body corporate legally authorized to act as a single person. It is an artificial person established for prescribing in
perpetual succession certain rights, which, if conferred on natural person, would fail in process of time.11
Residence
No exhaustive definition is possible of the elastic term "Renvoi". It is differently construed in accordance with the purpose and the
context in which it is used. In Kumud v. Jotindranath [(1911) 38 Cal. 394], the Calcutta High Court said that it means 'the place
where a person eats, drinks and sleeps, or where his family or servants eat, drink and sleep'. It has also been construed to mean
'dwell permanently or for a considerable time'. The word 'residence' has a time element in it, but it does not necessarily mean that a
person must have been residing in the same home or at the same place for a considerably long period. No duration of residence is
necessary for acquiring domicile. Residence in a country is prima facie evidence of domicile, the presumption of domicile in
favour residence becomes stronger with the length of residence. However, mere long residence is not enough for acquisition of
domicile, nor does the brief residence negative domicile.

Doctrine of Renvoi
Once it is decided that a court has jurisdiction, the court is required to apply the law of a particular country or place. The problem
of renvoi arises is connection with the application of ‘law of a country’ (Collier v. Rivaz [(1841) 2 Curt. 855]). Then, what do we
mean by the ‘law of a country’?
The ‘law of a country’ means the internal law of a country in a narrow sense i.e., excluding the rules of a private international law
or in a broad sense including the rules of private international law.
Thus, the ‘law of a country’ or place means:
 a. Internal law of that country; or
b. The whole law of that country ie., the internal and the rules of private international law.

(If the rules of private international law of a country direct that its municipal law, or internal law applies, then that law would
apply).
Suppose A, a British subject whose domicile of origin was English, died intestate domiciled in France, leaving movable property
in England. The general principle of English private international law is that in the case of a deceased intestate, distribution must
be made according to the law of the deceased’s domicile at the date of his death. Distribution according to French Law is therefore
indicated. The question now arises, shall distribution be made according to French internal law as applied to the distribution of
French movables of French subjects domiciled in France, or shall it be to French law in the wider sense, which includes French
private international law? The results of the answer may well differ in the two cases. French law in fact governs distribution of
movables by the deceased’s nationality, and accordingly, the applicable of French Law on these facts in its wider sense would
result in a remission or renvoi to English Law.
The problem of renvoi arises in those cases where the rules of private international law either refer back to the law of the forum or
refer to law of a third country. For the former situation, the French word is 'renvoi' and the English word is 'remission'. For the
latter situation, the English term is 'transmission'.
The principal theories of Renvoi are the following :
The Mutual Disclaimer Theory (Apply Internal Law only)
Von Bar and West lake propounded the mutual proponents theory by assuming that all rules of private international law are in
reality rules by which one state, for the purpose of administration of private law, defines its own jurisdiction and the jurisdiction of
foreign States12. This theory expresses that ‘the law of country’ as meaning only the internal rules of that law.
Von Bar propounded the following propositions:
1. “Every country shall observe the law of its own as regards the application of foreign laws.
2. Provided that no express provision to the contrary exists, the court shall respect:
a. The provisions of a foreign law which disclaims the right to bind its nationals abroad as regards their personal
statute and desires that the said personal statute shall be determined by the law of the domicile or by the law of
the place where the act in question occurred:
b. The decision of the two or more foreign systems of law, provided it be certain that one of them is necessarily
competent, which agrees in attributing the determination of a question to the same system of law.”

This theory has been adopted in those cases such as contract, where the parties are allowed expressly to choose the law to govern
their relationship.
The only difference between Von Bar and Westlake is that Westlake seems to apply his theory to all cases where the difference in
the rules of two countries amounts to mutual disclaimer, Von Bar seems to restrict his theory to cases where personal statutes are
involved.
This theory has been adopted in two early English decisions by a court of first instance in Humilton v. Dallas [1875, LRI Ch. D
257] and by the Privy Council in Bremer v. Freeman [1857, 10 Moo. P.C. 306], and later in a multitude of decisions.
The Theory of Renvoi Proper (Doctrine of Single Renvoi)
The doctrine of renvoi has two aspects i.e., renvoi in its narrow sense or renvoi proper (remission) and in wider sense
(transmission)
Bentwitch, who accepted the theory or renvoi in its narrow sense advanced the arguments of renvoi proper thus: “The renvoi is, in
principle, a reference back not to the whole law of the foreign country including its different rules of private international law, but
simply in its internal law. Suppose a case where the lex fori (hereinafter called A) submits the matter to the lex domicilii/ (herein
after B), and B refers the matter back to A as the law of nationally, A accepts the renvoi, and applies its own law. If we regard first
principle, we see that what happened is this. Law is primarily sovereign over all matters occurring within the territory, and so A
would ordinarily apply to succession. A, from motives of international comity and to secure a single system of succession, resigns
its ordinary jurisdiction to B. But B, by reason of its special juristic conceptions, does not take advantage of the sacrifice by
accepting jurisdiction. A’s primary jurisdiction consequently is properly exercised and there is no ground for A to decline to accept
the renunciation of B, since it thereby puts into operation its fundamental principle of regulating every matter within the territory.”
As per the doctrine of single renvoi, if a judge in country A is referred by his own rule of the choice of a law to the ‘law’ of
country B, but the rule of the choice of law in B refers such a case to the ‘law’ of A, then the judge in A must apply the internal
law of his own country.
The operation of this famous but regrettable doctrine, which demands that a reference to the law of a country shall mean a
reference to the whole of its law, including its private international law, is best explained by the following example: X, a British
subject dies inter-state, domiciled in Italy, and an English court is required to decide the mode in which his movables found in
England shall be distributed.
The application of renvoi in its proper or narrow form would always, like the mutual disclaimer theory, lead to the application of
the law of the forum, wherever there is a conflict between the two foreign laws. The theory of renvoi in its proper sense is based on
the assumption that the rules of private international law in each country are based on the principle of comity which implies a
mutual agreement among the states for the application for each other’s laws.
The Foreign Court Theory (Doctrine of total renvoi):
In 1841, an English Judge Sir Herbert Jenner formulated the foreign court theory thus : “The court sitting here decides from the
person skilled in that law, and decides as it would if sitting in Belgium (Collier v. Rivaz [(1841) 2 Curt. 855]).”
The foreign Court theory (Cheshire) is also called the ‘doctrine of total renvoi (Dicey), or the ’doctrine of total renvoi (Dicey), or
the ‘doctrine of double renvoi’, (Robel) or ‘English doctrine of renvoi’.
The Foreign Court theory demands that an English judge, who is referred by his own law to the legal system of a foreign country,
must apply whatever law a court in that foreign country would apply if it were hearing the case.
Dicey, throughout his life, subscribed vigorously to his theory, Griswold, a moderate American just says, “When a court is referred
by its own conflicting rule to a foreign law, it should, as a matter of course, look to the entire foreign law as the foreign court
would administer it.”
According to Lorenzen, the doctrine of renvoi is an expedient to which the court resort in order to justify the application of their
own law, it is probable that in the case of transmission the courts might interpret a reference to the law of a third country as a
reference to the rules of conflict of laws of that country.
Criticism of the Doctrine of Renvoi
The doctrine of renvoi has been criticized not only on historical and logical grounds but also on the ground of principle. The
following are the criticism of the theory of renvoi:
i. If the foreign country also adopts the doctrine of renvoi, then logically no solution is possible as a perpetual circulus
inextricabilis would be the result. It is difficult to approve a doctrine which is workable only if other countries reject it.
ii. The doctrine is hardly conducive to the aim of private international law viz., to bring uniformity of laws.
iii. The doctrine of renvoi is not only expedient for the application of the lex fori, but it may result in the application of as
many laws as there are states before the courts of which the matter might be agitated.
iv. The doctrine of renvoi, in whatever form it is expressed, will produce uniformity only if, it is recognized in one of the
countries concerned and rejected in the other – not if it is recognized in both. If, for example the lex domicilii, to which
the English judge is referred, ordains that the case is to be decided exactly as the national (English) court would decide it,
what is the judge to do upon finding that by English law his decision is to be exactly what it would be in the country of the
domicile? Where a halt is to be called to the process of passing the ball from one judge to another? There is no apparent
way in which this inextricable circle can be broken – this international game of lawn tennis be terminated.
v. The foreign court theory involves nothing less than a substitution of the foreign for the English choice-of-law rules.
vi. This theory humors both the nature and the genesis of a rule for the choice of law. The material fact is that such a rule
is based upon substantial grounds of national policy.

Issues to which Renvoi, May Apply

The exceptional cases in which the doctrine of renvoi has been considered to be useful are the following:

1. Title to Foreign Land

The country in which immovable property is situated has, by the very nature of things, a permanent and exclusive physical control
over it. It would, therefore, be a realistic approach to determine the title to such property by the application of the whole of the law
of the situs of the property.

2. Validity of bequests

Where the essential validity of will are intestate succession to movables is determinable by the law of a foreign country; the view
that would be taken of the matter by the foreign judge, if we were hearing the case, must be adopted.

3. Title to foreign movables

The doctrine of renvoi should be equally applicable to movables property situated abroad. But since the situs of movables can
always be changed, the argument is not so strong as in the case of foreign immovables13.

4. Status (family law issues)

As to the status of marriage it has been suggested that the status of marriage which is recognized by the lex domicilii should be
recognized everywhere. The one area of family law where there is clear authority for the application of renvoi is that of the
recognition, at common law, of legitimation by subsequent marriage. There is also-some authority for the application of the
doctrine of renvoi to matrimonial property issues, and to both formal and essential validity of marriage.
In relation to children, the applicable law in terms of 1980 Hague Convention includes its rules of private international law.

5. International Conventions

The doctrine of renvoi was an expedient through which the nations of the world could come together for framing international
convention14. This importance of renvoi has been lost in our contemporary world.
 6. Transmission

Morris advocates the application of the doctrine to certain cases of ‘transmission’. He says, “where the foreign law referred to by
the English Court refers to a second foreign law and the second foreign law would agree that it was applicable, the case for
applying the second foreign law is strong.”
Example
Armitage v. A.G. [1906 P. 135]
Here, the husband was domiciled in New York. His wife obtained a divorce in South Dakota upon a ground which was sufficient
neither by New York, nor by English internal law. The evidence showed however, that a court in New York, had it been seized of
the case, would have recognized the South Dakotan decree as valid. The English Court, on the basis of the foreign court theory
held that the validity of the decree must also be recognized in England.

Jurisdictional immunity [against whom suit may not be filed]

The general rule is that an action can be held against any person who is present within the jurisdiction, there are certain persons
who enjoy jurisdictional immunity and therefore suits cannot be filed against them.

1. Foreign State and the Foreign Sovereign

The rule of immunity of foreign state and its head has been derived from the English law maxim ‘par in parem non habet
imperium’ the principle of sovereign immunity is not founded on any technical rules of law; it is founded on broad considerations
of public policy, international law and comity.
The principle of sovereign immunity is now an internationally recognised principle.

2. Diplomatic Representatives and their staff

]The representatives in the UK of a foreign state are sent on the understanding that they shall have an immunity from the civil and
criminal jurisdiction of the local courts which reflects that enjoyed by the sovereign whom they represent.
The diplomatic privileges act 1708 which was declaratory though not exhaustive of the common law, provided in accordance with
this principle that all ‘writs and process’ against a foreign ambassador or other public minister should be null and void.
The persons entitled to privileges are:

diplomatic agents

members of the administrative and technical staff

members of the service staff.

3. International Organization and their representatives

The international organization has led to the statutory extension by the Diplomatic Privileges (Extension Acts 1944 to 1950), to the
leading members of delegations of the immunities from jurisdiction accorded to ambassadors
The official staff of such representative and his family may also be conferred his immunity. The act also empowers the Crown to
confer in the like manner upon specified subordinate officers and servants of the organization immunity in respect of their official
acts and functions.15

List of references
Sr.No Details
1 V. C. Govindaraja - The Conflict of Law in India
2 Paras Diwan - Private International Law
3 Setalvad - Conflict of Laws.
4 S.K.Kapoor - Private International Law
5 Dr S R Myneni - Private International Law

1. Paras Diwan and Peeyushi Diwan, “Private International Law” 4 th Edition (1998) Deep and Deep publication
2. Dr. S.R.Myneni, “Private International Law”, 1st Edition (2013) , Asia Law House
3. Supra N1
4. Dr. S.R. Myneni : Private International Law
5. North P M & Cheshire G C, “Private International Law”, Butterworths, New Delhi, 13th edn. 2004.
6. Dicey and Morris , “The Conflict of Laws” 8th Edition, Sweet & Maxwell publication
7. Supra N1
8. Sec.9 Indian Succession Act 1925
 9. Dr. S.R. Myneni : Private International Law
10. Dr. S.R. Myneni : Private International Law
11. Dr. S.R. Myneni : Private International Law
12. Supra N1
13. Supra N5
14. Supra N6
15. Dr. S.R. Myneni : Private International Law

Unit III - Judicial Attitude

Course Outline of Unit III: Judicial Attitude

This Unit contains discussion on following topics :
Cases involving Private International Law - Marriage - Divorce - Adoption - Guardianship and Maintenance

Disclaimer: This subject content as provided under AIR Online Education Support Suite is only Study (Reference) Material for
supplementing your Academic Classroom (Text Book) Learning. These are not Text Books on the Law Subjects.

Status
Definition of ‘Status’
‘Status of an individual’ means the legal position of the individual in or with regard to the rest of the community. The rights,
duties, capacities and incapacities which determine a person to a given class, constitute his status. Status includes the sum total of
man’s personal rights and duties or, of his capacity for rights and duties1.
In English Law status is a person’s legal condition in society, either absolute or in relation to another person, which is conferred by
and at the will of the State of the person’s domicile, in the case of domestic status, or on the same or some other basis, such as
residence of mere presence, in other types of status and carries with it the rights, duties, capacities, incapacities, powers and
disabilities, or any combination of them, such legal condition and its incidents being generally unchangeable at the mere will of the
person or persons subject to the status. The status of an individual used as a legal term, means the legal position of the individual in
or with regard to the rest of the community.
Characteristics of Status
The Chief characteristics of status are as follows:

i. Conference by State

Status can only be conferred on an individual by the state in certain forms, such as the status of husband and wife, or of adoption
and adopted child, conferment by the state to predicate upon some voluntary act of the individual concerned e.g., as the result of a
marriage ceremony or a petition for adoption or legitimation.

ii. Matter of Public Interest

Status is a matter of public or social interest. Whether or not the condition of status will be imposed as the result of the private
contract depends on the public interest in the relation intended to be created by the contract. In other words, the interest and
concern of the society of which individual form part determine whether or not status will be imposed or conferred as a result of
private contract.

iii. Status is not acquired by the will of the party

Status being a concept of social law, cannot be acquired, varied or divested at the mere will of the parties concerned. Except in
those cases in which the duration of a status is legally determined. E.g., in infancy, or conviction, the legal determination of a
status always requires some legal or administrative organ of the State.

iv. Universality of Status

The most important feature of Status is its universality i.e., it applies to all uniformly.
This principle of universal recognition has led the English courts, for example, to accept the status of a child legitimated under the
law of a foreign domicile for many years before the principle of legitimation by subsequent marriage of the child’s parents was
introduced into English law by the Legitimacy Act 1926; to recognize the status of husband and wife between parties who could
dissolve their marriage by consent and registration and to recognize the validity of foreign divorce decrees on grounds which
formed no part of the English law of divorce.

Marriage
Concept of Marriage
According to Tomlin’s Law Dictionary, Marriage is a civil and religious contract, whereby a man is joined and united to a woman,
for the purpose of civilized society. It is generally the conjunction of a man and woman, in a constant society, and agreement of
living together; until the contract is dissolved by death or breach of faith, or some notorious misbehavior, destructive of the end for
which it was intended. It is one of the rights of human nature and was instituted in the state of innocence, for preservation thereof;
and nothing more is requisite to a complete marriage, by the law of England than a full, free, and mutual consent between parties,
not disabled to enter into that state by their near relation to each other, infancy, pre-contract or impotency.
Under the English domestic law marriage is defined as a voluntary union for life between one man and one woman to the
exclusion of all others2. The essential character of the kind of marriage over which English Courts will exercise civil jurisdiction is
based on monogamy. In Sowa v. Sowa [(1961) p.70], before the solemnization of his polygamous marriage a Ghanian promised
his wife that he would, after the marriage undergo another ceremony converting his potentially polygamous marriage into a
monogamous marriage. But he did not fulfill his promise. The English Court held that the marriage remained a polygamous union.
If the personal law of a person does not permit him to practice polygamy, then a polygamous marriage contracted by such a person
at a place where polygamy is allowed, will not be recognised in England3.
A marriage does not fail to quality as monogamous merely because neither party is a Christian. The essential character of the kind
of marriage over which English courts will exercise jurisdiction is based on monogamy and not on the religious beliefs of the
parties. All that is necessary is that a union should possess that quality of exclusiveness which the essential feature of a marriage in
the Christian sense.
In Brinkley v. A.G. [(1890) LR 15 PD 76], it was observed that a marriage solemnized in Japan according to the local forms,
between a British subject and a Japanese woman has been held as valid in England, upon proof that by the law of Japan marriage is
the union of one man and one woman to be exclusion of all others.
In The Sinha Peerage Claim [(1946) All ER 348], a marriage contracted by a Hindu in Bombay according to Arya Samaj faith was
held to be monogamous for the purpose of English law not withstanding the fact that he might get converted to orthodox Hinduism
at a later date with freedom to take a second wife.
One of the important questions under the private international law is : under which law should marriage be characterized as
monogamous or polygamous ? In Lee v. Lau [(1964) 2 All. E.R. 248], the court said that it is for the latter to determine the nature
and incidents of the union, and then it is for the lex fori to decide whether the marriage is polygamous or monogamous. Thus if a
Pakistani domiciled Muslim marries in England at a Registry office he contracts a monogamous marriage [Maher v. Maher (1951)
p.342].
In Ali v. Ali [(1966) 2 W.L.R 620] two Indian domiciled Muslims whose marriage was potentially polygamous, acquired a
domicile of choice in England, though parties continued to adhere to Islam. The court observed that since the law of domicile did
not permit polygamy, the potentially polygamous marriage has got converted in monogamous union so much that it was competent
for the English Court to dissolve it or to provide any other matrimonial relief.
The next question under the private International law is how far do English courts accord recognition to the wife of a polygamous
union? In Alhaji Mohammed v. Knott [(1968) 2 W.L.R 1446] it was settled that the husband wife status of polygamous married
person would be recognised in English law. English decision also appear to lay down that spouses of a potentially polygamous
marriage cannot be guilty of criminal conspiracy Mawji v. The Queen [(1957) A.C. 126], and the wife or wives of a citizen of the
UK and the colonies are entitled to claim citizenship thereof.
One of the prime question relates to mutual rights of succession of the spouses of polygamous unions. It appears to be the position
in English Law that the surviving spouse of a polygamous marriage can succeed to the property of the other spouse in case of
intestacy, irrespective of the fact whether the marriage was potentially polygamous or factually polygamous, and irrespective of
the fact whether the intestate died domiciled in England or abroad [Coleman v. Shang (1961) A.C. 481].
Indian Law
In India each religious or quasi religious community has its own personal law. In personal matters or matters pertaining to family,
India has no national or regional law. In India there is no national law pertaining to family. Hindus, Muslims, Christians, Parsis
and Jews have their own separate personal law. Among Hindus there two schools namely, Dayabhaga which prevails in Bengal,
Assam, Tripura and Manipur and the Mitakshara which has four sub schools prevails in rest of India. Among Muslims there are
sects namely, Sunnies and Shias. The Christian, Parsi etc., have no schools or sub-schools4.
The personal laws differs from community to community and it seems inevitable that in India there is no one concept of marriage.
India is also a country where different types of marriages prevail and where personal law of a person is not determined by his
domicile or his nationality but by his membership of the community to which he belongs.
Among Hindus, marriage is a sacrament act and consider it as permanent, indissoluble and eternal. However, in modern Hindu law
marriage has become monogamous and a dissoluble union and ceased to be sacramental union.
Muslims consider marriage as a contract. Muslim marriage (Nikah) has been defined as “a civil contract which has for its object
the procreation and legalizing of children”5. The shia Muslims recognize two types of marriages; permanent marriage and
temporary marriages (muta). The wife of muta marriage can neither claim maintenance from her husband, nor can she inherit his
property. A Shia Muslim cannot contract a valid permanent marriage with a non-muslim. Sunnis do not recognize muta marriage.
In India, the Christian marriages are performed under the Christian Marriage Act, 1872 under the Act a marriage may be
performed before a marriage registrar or it may be solemnized by a minister of religion licensed under this Act. If a Christian male
or female, wants to perform a marriage with a non-Christian, the marriage can be performed only under the Christian Marriage
Act, otherwise such a marriage will be void.
The Parsis consider their marriage as a Contract. The Parsis are those who profess Zoroastrian religion. The Parsis marriage is a
monogamous union, so much that a Parsi by changing his domicile or religion cannot contract another marriage under the Parsi
Law or under any other law in the life time of his or her , wife or husband , whether a Parsi or not6. The marriage and matrimonial
causes among Parsis are regulated by the Parsi Marriage and Divorce Act, 1936, as amended by the Act of 1988 . Under the Act, a
marriage can be performed only between two Parsis and for every such marriage the religious ceremony of ‘ashirbad’ is necessary
[Section 3(b)].
In Private International Law, the question first arose in Khambatta v. Khambatta [AIR 1935 Bom. 5]. In this case, an Indian
domiciled Muslim male married a Scot domiciled woman in Scotland before a Marriage Registrar in 1905. Subsequently parties
came to India and the wife embraced Islam. In 1922, the husband pronounced divorce on his wife. The court gave the declaration
of divorce. Then she underwent a ceremony of civil marriage with one khambatta under the Special Marriage Act, 1872. After ten
years of marriage, the wife petitioned for a declaration of nullity of her marriage with khambatta. She pleaded that her Scottish
marriage has not been dissolved by any court of law, her second marriage being bigamous was void. The court was called upon to
decide whether the marriage was governed by the law applicable at the time of the marriage or was governed by the law
applicable after conversion. It was held that it would be law after conversion that would govern the marriage. Therefore, the court
came to the conclusion that the first marriage was validity dissolved.
Thus, it can be understood that the position of India is that, with the exception of Muslims, polygamy is not allowed to any people.
In the laws of all communities of India the marriage is a contract. In whatever form the marriage may be performed or whatever
concept of marriage may prevail anywhere, the status and obligations arising out of marriage should be accorded recognition all
over the world, unless it is repugnant to some pronounced principles of public policy.
Conditions for Validity of Marriage
For the validity of marriage, the fulfillment of two conditions is essential:
i. Parties to marriage must have capacity to marry. 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. This is, in private international law, called the
question formal validity of marriage.

A marriage to be valid must be valid formally and materially. If any of the two requirements is not fulfilled the marriage is void.
The most difficult problem in regard to validity of marriage is the problem of characterization : By reference to which law the
formal and material validity of the marriage is to be judged? The courts of one country consider a matter relating to marriage as a
matter of formal validity, while the courts of another country consider the same matter as of material validity.
In Ogden v. Ogden [(1908) p. 46], the parental consent was characterized by French law as relating to material validity, while the
English law was relating to formal validity, with the unhappy consequence that the lady was considered as married in England and
divorced in France.
The fact of the matter is that in early English decisions, the courts did not make much of a distinction between material validity
and formal validity of marriage and both were determined by the lex loci celebrationis.
In Brook v. Brook [(1858) 3 Sm& G 481], a distinction was made for the first time. It seems to be established that the material
validity of the domicile of each party at the time of marriage i.e. by the pre marriage domicile , and the formal validity of the
marriage is determined by the lex loci celebrationis. It is submitted that the policy of law of every country should be to lean in
favour of the validity of every marriage, and courts of every country should be very slow to apply a law which renders the
marriage invalid.
Governing Matters of Capacity to Marry
i. Consent of Parties

Consent of parties to marriage has been characterized as a matter of essential validity of marriage, and therefore governed by the
ante-nuptial domicile of parties (Way v. Way [(1950) p. 71]).If there is any mistake on marriage it will be considered that there is
no consent of parties and that the marriage is void as the party has no capacity to marry. In Mehta v. Mehta [(1945) 2 All E.R
690], the marriage was held void since the ceremony that woman underwent was in fact a ceremony of marriage though she
thought it was of betrothal.

ii. Non-age

At what age a person acquires capacity to marry differs from country to country. The Marriage Act, 1949 (of England) lays down
that a marriage between persons either of whom is under the age of sixteen shall be void.
In Pugh v. Pugh [(1951) P 482], a British Officer, domiciled in England but stationed in Austria, married a Hungarian girl in
Austria in 1946. The girl, whose domicile of origin was Hungary had gone to Austria with her parents to escape from the Russian
advance. She was only 15 years of age and, therefore, if her capacity was to be governed by English domestic law, the marriage
was rendered void by the age of Marriage Act which prohibits a marriage ‘between persons either of whom is under the age of 16.
By both Hungarian and Austrian law the marriage was valid. The court held the marriage to be a nullity on the ground that all
persons domiciled in the United Kingdom wherever the marriage might be celebrated were affected by the Act, and, by the law of
the husband’s domicile it was a marriage which he could not lawfully enter.

iii. Prohibited Degree

Every country lays down the degree of prohibited relationship, and a marriage in violation of them is invalid. There is a great
variation in these degrees in the various countries of the world. Since 1839 and also as per Sec. 1 of Marriage Act, 1949 (of
England) marriages within prohibited degrees of consanguinity and affinity have been considered void under English Law.
In Mette v. Mette [(1859) I S W & Tr 416], a German, domiciled in England, married in Germany, after the death of his wife, his
wife’s half-sister who has domiciled in Germany. The marriage was valid by German law, but void by English law. The English
Court held the marriage as void.

Formal Validity of Marriage

English law – Principle of ‘Locus regit actum’
It is a well established rule of English Private international law that a marriage to be formally valid must comply with the local law
– locus regit actum i.e. that an act is governed by the law of the place where it is done.
What ceremonies should be performed is entirely for the local law to indicate. Thus, if Local Law recognizes marriages by
cohabitation or repute or of it is constituted per verba de praesenti, or proxy, or if religious ceremony is essential, then a marriage
performed according will be recognized as valid.
Exceptions to the Principle ‘ Locus regit actum’
There are, however, certain exceptional cases in which English law recognises the validity of marriage not withstanding a failure to
observe the formalities of the Lex Loci celebrationis. These exceptions to the general principles may be grouped as follows:

i. Where no local form exists [ common law marriages performed abroad]

In the days of colonization there was usually no specified local form of marriage which settlers and colonisers could comply, and
English ecclesiastical courts applied the principle of constitutional law that settlers took with them only so much of the common
law as was appropriate to their new situation.

ii. Where the local form is inappropriate

Where the existing local form is inappropriate to a Christian type of marriage, the marriage is valid at common law. Such a case
may arise when parties, on at least of whom has an English domicile, wish to marry in a country where only available form is that
of a polygamous marriage, or some uncivilized form of union which the English courts do not regard as constituting a marriage of
any kind.7

iii. Marriage “within the lines”

At common law a marriage may validly be performed in disregard to local form if solemnised within the lines of an army on active
service by a person, such as a chaplain, appointed for that purpose by the commanding officer.

iv. Foreign Marriages Acts, 1892 and 1947

The foreign Marriages Act, 1892 provides that, “ All Marriages between parties of whom one at least is a British subject
solemnised in the manner in this act provided in any foreign country or place by or before a marriage officer within the meaning of
this act shall be as valid in law as if the same had been solemnized in UK with a due observance of all forms required by law.

v. Marriages celebrated on Merchant Ships

In Private International law the theory is that the ship is a floating portion of the country whose flag is carried, it has been thought
that a marriage solemnised on a merchant ship on the high seas to be formally valid must comply with the law of the ships port of
registry; the law of the ships port of registry would be sufficient to indicate the law of that Portia of the country the flag of which it
flies.

vi. Marriages of Members of his Majesty’s Forces Serving Abroad

Foreign territory under the act includes, inter alia, ships which are in water of any foreign territory – A marriage performed in
compliance with the norms as prescribed will be valid whether the armed forces are on active service or in the occupation of
foreign territory after conclusion of hostilities.

vii. Marriages in Foreign Embassies [ Consular Marriages]

According to the Foreign Marriage Act, 1892 -1947, any marriage between parties one of whom at least is a United Nations
national, solemnized before a marriage officer in a foreign country in the manner prescribed by the Act, shall be as valid as if it
had been solemnized in the UK with a due observance of all forms required by law.
Indian law
It is an established principle of Indian Private International Law that a marriage to be formally valid must comply with the Lex
Loci celebrationis.
In India two forms of marriages are available:
a. Under the personal law of the community; and
b. Under the special Marriage Act, 1954.
The marriage under personal law may be performed in accordance with the ceremonies laid down by the personal law of the
parties of the same community.
Consular Marriage
In India the Foreign Marriage Order, 1964 and the Foreign Marriage Act, 1969 deal with Consular Marriages. The Act lays down
that a consular marriage may be performed aboard when one of the parties to the marriage is an Indian national at the official
house of the ,marriage officer appointed under the Act with open doors between the prescribed hours, in the presence of at least
three witnesses in any form which the parties may choose to adopt, but in no case a marriage will be complete and binding on the
[arties unless each party declares to the order in the presence of the marriage officer and witnesses, in any language understood by
the parties.

Matrimonial Causes
‘Matrimonial causes’ are actions for nullity of marriage, divorce, judicial separation, restriction of conjugal rights (which have
been now abolished).
In England
In england, before 1857, the jurisdiction over matrimonial causes was exercised by the ecclesiastical courts. Then divorce was
unknown. The jurisdiction of the ecclesiastical courts extended to all Christians and there was no problem of conflict of laws. The
Chruch was not concerned with the domicile or nationality of the parties.
In the rapidly advancing English society of 18th and 19th centuries the need for divorce was so pressing that its recognition
became imperative. Now ,consolidated in matrimonial causes act, 1973 and which has been supplemented by the domicile and
matrimonial proceeding act, 1973.
At Common Law
Until 1972, the rule of English law was that the parties to a polygamous marriage were “not entitlted to the remedies, the
adjudication or the relief of the matrimonial law of England”
All this has changed now with the enactment of Mtrimonial Causes Act, 1973. Section 47(1) of the Act provides that: “ A court in
England and Wales shall not be precluded from granting matrimonial relief or making a declaration concerning the validity of a
marriage by reason only that either party to the marriage is, or has during the substance of the marriage been, married to more than
one person.
In India
In India, the matrimonial causes are of recent growth. Muslim law has recognised divorce, but it never had anything akin to other
matrimonial causes. Divorce has not been recognised in some Hindu Communities by custom, as they consider Hindu Marriage
has been a sacramental union. India did not have anything like matrimonial causes before the advent of the British rule. Following
are the enactment:
a. The Indian Divorce Act, 1869
b. The Parsi Marriage and Divorce Act, 1865
c. The Parsi Marriage and Divorce Act, 1936
d. The Dissolution of Muslim Marriage Act, 1939
e. The Hindu Marriage Act, 1955.8

Dissolution of Marriage
Meaning of ‘Dissolution’
Dissolution means ’a break up of any constituted body of persons’ or ’the taxation of any tie, bond or binding power’. As applied
to marriages, ‘dissolution’ means ‘a divorce’. The word ‘dissolution’ relates to the marriage, bond itself, whereas the word
‘divorce’ relates to the parties to the marriage bond; and it is apt to refer to ‘divorce’ when speaking of parties and ‘dissolution’
when speaking of the bond.
Meaning of Divorce
‘Divorce’ is a judicial act by which the marriage relation is either dissolved or partially suspended. ‘Divorce’ is nothing more nor
less than another name for dissolution of marriage, whether the same results from act of parties or is a consequence of proceedings
at law and it would be wrong to regard the two terms as not being synonymous with each other unless the legislature makes a
direction to the contrary9.
Grounds of Divorce
The modern English law recognizes only one ground of divorce, viz. the marriage has broken down irretrievably10. What
constitutes such break down is laid down in sub-section(2) of Section 1 of Matrimonial Causes Act 1973, the following facts will
constitute such breakdown:
a. That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent
b. That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the
respondent
 c. That the respondent had deserted the petitioner for a continuous period of atleast two years immediately preceding the
presentation of the petitioner
d. That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the
presentation of the petition and the respondent consents to a decree being granted
e. That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the
presentation of the petition.

These grounds appear to be a fair blending of the three traditional fault grounds viz. Adultery, cruelty, desertion , with the modern
theories of consent and breakdown of marriage.
Indian Law
In British India, the Indian Divorce Act, 1869 recognized only one ground of divorce. A husband can seek divorce on the ground
that his wife has been guilty of adultery; a wife can seek divorce on the ground that her husband has converted to another religion
and married a second wife, or has been guilty of incestuous adultery or of bigamy with adultery, or of marriage with another
woman with adultery, or of rape, sodomy or bestiality or adultery coupled with such cruelty as without adultery would have
entitled her to a divorce mensa et toro or of adultery coupled with desertion, without any reasonable excuse for two years or
upward.
Under the Hindu Marriage Act, 1955, the grounds for divorce are the following:
i. Adultery
ii. Desertion
iii. Cruelty
iv. Conversion to another religion
v. Incurable insanity or mental disorder
vi. Virulent leprosy
vii. Veneral disease in a communicable form;
viii. Renunciation of the world; and
ix. Presumption of death (i.e., seven years’ unheard absence) wife alone can use for divorce on the ground of
a. Another wife of the husband’s pre-Act polygamous marriage being alive;
b. The husband has been guilty of rape, sodomy or bestiality;
c. Cohabitation between the parties has not taken placer for one year or upwards after the passing of an order
awarding maintenance to the wife under section 125, Criminal Procedure Code, 1973, or under Section 18, Hindu
Maintenance and Adoption Act, 1956, and
d. The marriage of the wife was solemnized before the attained the age of fifteen years and she had repudiated the
marriage after attaining that age but before attaining the age of eighteen years.

Divorce under Muslim Law is largely non-judicial. This may be divided into two heads:
a. unilateral divorce by husband
b. Divorce at the instance of the wife but with the consent of the husband.

The former is called Talak. No particular form is required. It may be oral or in writing . The intention to divorce must be clear and
unequivocal. While pronouncing divorce on his wife, the Muslim husband need not mention any reason or cause, non is
necessaryunder Muslim Law. Muslim marriage may also be dissolved at the instance of the wife, provided the husband consents to
it11.
Indian Law regarding Divorce
All the matrimonial statutes in India except the Divorce Act, 1869, contain the concept that domicile or nationality of either party
is not relevant for the purpose of jurisdiction in any matrimonial cause.
Under Indian Divorce Act, 1869, a petition is in any matrimonial cause may be present to the District Court or the High Court in
any matrimonial cause on the basis of the residence of the parties within the jurisdiction or that the parties last resided together
within the jurisdiction of the court, or for dissolution of marriage, the parties are domiciled in India at the time of the presentation
of the petition.
Nullity of Marriage
Traditionally the law of nullity of marriage is concerned with the impediments to marriage. Under the Hindu Marriage Act 1955 a
boy below the age of 18years and a girl below the age of 15 years cannot marry, but if marriage is performed in violation of
condition, the marriage is valid, though some punishment can be imposed on the party guilty of violating the same.
A void marriage is void ab initio i.e. from its inception , no legal consequence flow from it. On the other hand , the voidable
marriage is valid till it is avoided on the petition of one of the parties to the marriage (Ross Smith v. Ross Smith [(1963) A.C. 280
p. 314]). A void marriage is called a marriage because two persons have undergone the ceremony of marriage. But since the
marriage between the two was impossible because of destructive impediments two persons could not become husband and wife
just by undergoing the ceremony of marriage. This implies that avoid marriage does neither confer the status of husband and wife
on the parties to the marriage – not does it confer a status of legitimacy on the children of such marriage (De Reneville v. De
Reneville [(1948) p. 100]). In the case of a void marriage , no decree of court is necessary. When a court passes a decree of nullity
it merely declares the marriage as void; it is not the decree which renders the marriage void , but the decree is merely a judicial
declaration of an existing fact. A void marriage can neither be approbated not it can be ratified.
A voidable marriage , is a perfectly valid marriage so long as it is not avoided. On the death of either party the marriage becomes
unimpeachable (De Reneville v. De Reneville [(1948) p. 100]). So long as a voidable marriage is not avoided, all legal
consequences flow from it.
Grounds for Void and Voidable Marriage
English Law
English law of nullity of marriage has been codified, consolidated and reformed by the Nullity of Marriage Act 1971, provisions of
which with some minor modifications have been re-enacted in the Matrimonial Causes Act 1973.
Void Marriage
Under the modern English Law grounds of void marriage are:
a. The parties are within the degrees of prohibited relationship
b. Either party is under the age of 16 years
c. The parties have intermarried in disregard of certain requirement as to the formation of the marriage
d. At the time of the marriage either party was already lawfully married
e. The parties are not respectively male or female (Corbett v. Corbett [(1970) 2 All E.R. 33.]).
f. A polygamous marriage was entered into outside England and Wales, between parties, either of which was, at the time
of the marriage, domiciled in England and Wales.
Voidable Marriage
Under the modern English law the grounds of voidable marriages are :
a. The marriage has not been consummated owing to the incapacity of either party to consummate it
b. The marriage has not been consummated owing to the willful refusal of the respondent to consummate it
c. Either party to the marriage did not validly consent to it , whether in consequence of duress, mistake unsoundness of
mind or otherwise.
d. At the time of the marriage either party , though capable of giving a valid consent, was suffering from mental disorder
e. At the time of the marriage the respondent was suffering from venereal disease in a communicable form
f. At the time of marriage the respondent was pregnant by some person other than the petitioner.

Indian Law
Various Indian matrimonial statutes lay down different grounds of void and voidable marriages, though some of the grounds in
the statues are common.
Void marriages
The Indian divorce Act lays down the following grounds of void marriages:
a. Respondent was impotent at the time of the marriage and at the time of the institution of the suit;
b. Parties are within the prohibited degrees of consanguinity or affinity
c. Either party was a lunatic or idiot at the time of marriage
d. The former husband or wife of either party was living at the time of the marriage and the marriage with such former
husband or wife was then in force.
Voidable Marriage
Under the Hindu Marriage Act 1955 the grounds of voidable marriage are :
a. Since the solemnization of the marriage it has not been consummated owing to the impotence of the respondent
b. The respondent was at the time of the marriage pregnant by some person other than the petitioner
c. The consent of either party to the marriage was obtained by coercion or fraud
d. That at the time of marriage the respondent was incapable of giving valid consent in consequence of unsoundness of
mind

Judicial Separation
Judicial Separation is separation of husband and wife under orders of court which puts an end to cohabitation but not to the
marriage itself.
An English decree of judicial separation entitles the petitioner to live apart from the respondent, but does not dissolve the married
status of the parties. It is permanent in the sense that it remains in operation unless and until a discharge of the decree is ordered.
Grounds for Judicial Separation
English Law: As per section 17 (1) of Matrimonial Causes Act, 1973, the following are the grounds for judicial separation:
i. That the respondent had committed adultery and the petitioner finds it intolerable to live with the respondent;
ii. That the respondent has behaved in such as way that the petitioner cannot reasonably be expected to live with the
respondent;
iii. That the respondent has deserted the petitioner for a continuous period of law years immediately preceding the
presentation of the petitioner.
iv. That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding
the presentation of position and the respondent consents to a decree being granted; and
v. That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the
presentation of petition.
On any one of these set of facts being established in court will grant a decree of judicial separation.
Indian Law
In India, the grounds and variant as per the matrimonial statutes:
Under the Divorce Act, 1869
Section 27 of the Act Provides that, “No decree shall hereafter be made a divorce a mensa et thoro but the husband or wife may
obtain a decree of judicial separation on the ground of adultery or cruelty or desertion without reasonable excuse for two years or
upwards and such a decree shall have effect of divorce a mensa et thoro under the existing law and such other legal effect as
hereafter mentioned.
Under the Parsi Marriage and Divorce Act, 1936
According to Section 34 of the Act, a Parsi husband or wife can obtain a decree of judicial separation on any one or more grounds
on which he or she can obtain divorce.
Under Special Marriage Act, 1954
Section 23 of the Act lays down that either party to the marriage may present a petition for judicial separation on any ground on
which he may present a petition for divorce under section 27(1) of the act as per section 23 (1) (b), A petition for judicial
separation may also be presented on the ground of failure to comply with a decree for restitution of conjugal rights.
Under Hindu Marriage Act, 1955
Section 10 of the act states that the grounds of judicial separation are the same as the fault grounds of divorce.
Under Muslim Law
There is no recognition of judicial separation under Muslim Law.
Recognition of Foreign Decrees of Judicial Separation
English Law
Under the recognition of divorces and Legal Separations Act, 1973, the basis for the recognition of judicial separation and
divorces are the same. Hence, the recognition of foreign decrees of judicial separation follows the procedure similar to that the
recognition of foreign decrees of foreign divorce.
Indian Law
Indian Courts have applied the general provisions of recognition laid down in section 13 of the Civil Procedure Code to foreign
decrees in matrimonial causes. If a decree in a matrimonial cause has been passed by a court of competent jurisdiction, the Indian
court will recognise it, unless it is impeached on any one of the grounds laid down in section 13 of the Civil Procedure Code.

Enforcement of Foreign Maintenance Orders

English Law
On granting a decree of divorce, nullity or judicial separation or at any time thereafter the English Court may make a variety of
financial provision order. The court has power to order periodical payments, which may be regarded as foreign judgment in
personam.

1. Recognition Under The Maintenance Orders (Facilities For Enforcement) Act, 1920

The Maintenance Orders (Facilities for Enforcement) Act, 1920 makes provisions for the reciprocal enforcement of maintenance
orders made in England and Northern Ireland and the countries of Commonwealth overseas, as well as in those countries to which
the Act may be extended.
 2. Recognition Under Colonial And Other Territories (Divorce Jurisdiction) Acts, 1920 -1950

The Colonial and other Territories (Divorce Jurisdiction) Acts, 1920 -1950 provide facility for the execution in England and
Northern Ireland of orders of alimony, maintenance, custody etc of the children, costs in the suit or damage against the co-
respondent, made by the court of colonies or other countries to which these statutes extend, in matrimonial proceedings between
the parties domiciled in England or North Ireland and resident in the colony or the country concerned.

3. Recognition Under The Maintenance Order Act, 1950

The maintenance Order Act, 1950 is designated to facilitate the enforcement of maintenance orders, made in other parts of the
United Kingdom, in England, Scotland or Northern Ireland.

4. Recognition Under the Maintenance Order (Reciprocal Enforcement) Act, 1972

There is a reciprocal machinery in the maintenance orders (Reciprocal Enforcement) Act, 1972, similar to that contained in the
1920 Act for the recognition of maintenance orders made in any foreign reciprocating country. A foreign provisional order made
in the absence of the defendant resides and that court has discretion as to whether or not to confirm the order.
Although registration of certified foreign order is mandatory under the 1972 Act itself, there are a number of grounds on which it
can be refused under the version implementing the 1973 Hague Convention on the recognition of maintenance orders, including
that ‘registration is manifestly contrary to the Public Policy.

Adoption
Introduction
‘Adoption’ is an act by which relations of paternity and affiliation are recognized, as legally existing between persons not so
related by nature; the act of adopting12. According to Abbout Law Dictionary ‘adoption’ is “The legal act whereby an adult person
takes a minor into the relation of child, and thereby acquires the rights and incures the responsibilities of a parent in respect to such
minor.”
The sole object of adoption is to provide a child to the childless. It is a means by which the family line was prevented from
extinction and made to continue.
Adoption Proceeding in England
England had known de facto adoptions in the latter half of the nineteenth century, though a formal law of adoption was enacted for
the first time the Adoption of Children Act, 1926 by introducing the familiar Roman Law concept of adoption; before which date
English Courts did not recognize the relationship. A comprehensive Adoption Act, 1950 was passed in 1950, which was further
modified and consolidated by the Adoption Act 1958. Then came the Adoption Act of 1968 whose main purpose was to give
effect to the Hague Convention on Adoption of Children, 1965, to which England is a party and ultimately it was replaced by the
consolidating legislation of the Adoption Act, 1976.
Adoption and Children Act, 2002 modernized the legal framework for domestic and inter country adoption. It largely replaces the
Adoption Act, 1976, and incorporated most of the provision of the Adoption (Inter-Country Aspects) Act, 1999, providing
statutory basis for the regulation of intercountry adoption, strengthening existing safeguards, introducing some new ones, and
enabling the United Kingdom to ratify the 1993 Hague Convention on Protecting of Children and Co-operation in respect of inter-
country Adoption13.
Jurisdiction of English Courts
The jurisdiction of the English Court to make an adoption order and the law to be applied by the Court depend on two different
sets of legislative rules, namely general rules and convention rules (for Hague Convention Adoption).
General Rules
Ordinarily, an English Court has jurisdiction to make an adoption order if:
i. The applicant is domiciled in England or Scotland; and
ii. The applicant and the child reside in England.

In exceptional circumstances the Court can make an adoption order even when the applicant and the child are not residents in
Great Britain14.
In terms of the Adoption and Children Act, 2002, an application for an adoption order may be made by a couple or by one person
only, subject to satisfaction of one of two conditions. In the case of adoption by a couple, an order may be made where both have
attained 21 years or if one of the couple is the mother or father of the child and is at least 18 years of age, and the other has
attained 21 years.
In the case of adoption by one person only, an order may be made if he has attained 21 years and is not married or a civil partner,
or if he is the partner of a parent of the person to be adopted.
In Re B(S) (an infant) [(1968) Ch. 204], where the mother of a Spanish domiciled child wanted to give it in adoption to an English
domiciled couple to whom she had entrusted the custody and possession of the child when it was eight days old. For the proposed
adoption consent of the father of the child was not obtained. The applicant prayed that the requirement of the consent of the father
may be dispensed with as he had not cared for the child at all from its birth.
Effect of an adoption order
Whenever an adoption order is made in respect of a child, its effect is
a. To extinguish all rights, duties and obligations and liabilities of parents or guardians of the child in relation to its future
custody, maintenance and education
b. To vest all such rights, duties, obligations and liabilities in the adopter as if the child were a child born to the adopter in
lawful wedlock.
If the adopter is a citizen of the United Kingdom and colonies and the child is not, then the child becomes the citizen of the United
Kingdom and Colonies from the date of adoption order.
Indian Law
Among Hindus the object of adoption was to confer spiritual benefit on the adopter and his ancestors. In Hindu Law adoption has
been spoken of as ‘new birth’. This theory itself involves the principle of a complete severance of the child adopted from the
family in which he is born and complete substitution into the adoptive family, as if he were born in it. Consideration of the
intimate connection, which primitive Hindu Laws established between the funeral offerings and ceremonies and behalf of the dead
and the right of succession to his property, will show that ceremonially the adopted son only becomes new born in the family of his
adoptive father, so as to be qualified to provide efficaciously the offerings of which the dead have need, by first dying in the family
of his birth, out of which he is given by his natural to his adoptive parent, and in which his offerings will be no longer efficacious
or desired. The adopted son has in his new family precisely the same status and rights of a natural born son.
Under the modern Hindu Law every Hindu, male or female has the capacity to make an adoption if he or she is a major and of
sound mind. A married male can adopt only with the consent of his wife. A married woman cannot adopt even with the consent of
her husband. It is because when both husband and wife are alive primarily it is for the husband to exercise the right of adoption. A
Hindu can adopt a male child if the adopter has no Hindu son, son’s son or son’s son’s son. The child adopted must be below
fifteen years in age15.
Jurisdiction of Indian Courts
The Hindu Adoptions and Maintenance Act, 1956, lays down that the adopter as well as the child should be Hindus. If one of the
parent ceases to be a Hindu, then the other parent or in case the other parent is dead, the guardian may give the child in adoption.
When a parent gives the child in adoption no adoption order is necessary. Hindus consider adoption as part of private law. The
necessary ceremonies of adoption must be satisfied. The Act does not lay down any requirement of residence, domicile or
nationality. A parent who is a Hindu can give the child who is also a Hindu to any person if he is a Hindu, irrespective of the fact
whether he is an Indian National or alien, or domiciled in India or abroad.
It is only when the child is given in adoption by the guardian, that a Court of law comes into picture. A guardian cannot give the
child in adoption without the prior permission of the court. The permission can be accorded only by that Court within whose
jurisdiction the child ‘ordinarily resides’. The court will not accord the permission for the proposed adoption unless it comes to the
conclusion that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the
child having regard to the age and understanding of the child. In no other case the ‘residence’ or ‘ordinary residence’ of the child
in India is necessary.
Under Hindu Law once an adoption is made it is final and irrevocable. It cannot be cancelled by the adopter or the natural parent.
Nor can the adopted child renounce his adoptive parents and return to his natural family.
Effect of adoption
Under the Hindu law for all the intends and purposes an adopted child is like a natural child . It is removed from its natural family
and is transplanted in the adoptive family, so much so that all its ties with the natural family are severed , except that he cannot
marry any female in its natural family whom he could not have married before its adoption. On the other hand, all ties in the
adoptive family come into existence as if he is a natural child. Under the Hindu Law once an adoption is made it is final and
irrevocable. It cannot be cancelled by the adopter or the natural parent. Nor can the adopted child renounce his adoptive parents
and return to his natural family16.
Recognition of adoptions made in designated countries (overseas adoptions)
In adoption of a child affected in a country or territory outside the British Islands which is included in the United Kingdom’s list of
designated countries, as set out in the Adoption (Designation of Overseas Adoptions) Order 1973, and which is affected under the
law in force in that place, is known as an overseas adoption.
Overseas adoption orders being those of a description specified in the 1973 order, are recognised automatically in England, and
have the same incidents and effects as if they were made in England. Overseas adoptions do not result in the automatic granting of
British Citizenship to the adopted child. An application for British Citizenship must be submitted in respect of the child and
registration as such is at the discretion of the Secretary of State.
Recognition of Foreign Adoptions
English Law
Despite the fact that England did not recognize adoptions in its domestic law till 1926, it has accorded recognition to foreign
adoption if the adopter and the child were domiciled in the same country, the law of which permits adoptions. English courts have
recognized such adoptions wihout any hesitations since English law has been wedded to the doctrine under which personal statute
is governed by the lex domicilii, only reservation has been that of public policy.
The Adoption Act 1968, lays down rules for the recognition of foreign adoption. “Nationality” and “habitual residence” are the
connecting factors under the Act. The High Court or the Court of Session has the power to pass orders that an oversea adoption or
a determination of it shall cease to be valid in Great Britain on the ground that the adoption or determination is contrary to public
policy or that the authority, which purports to authorize adoption or make determination , was not competent to entertain the
case17.
Provision for the registration of adoption is made. The Registrar General is required to register adoption in the Adopted Children's
Register under the Adoption Act 1958 Pugh v. Pugh [(1951) P 482].In the case of a convention adoption, he is required to make an
entry to that effect.
Indian Law
There is no statutory law of recognition of foreign adoptions, in India, However, in C.C. Natraju v. C.S. Subbaraya [(1949) 54
CW N.200 P.C.], one Shadashive Chettiar died domiciled in Pondicherry. His wife Vassavambal who continued to be domiciled
there made an adoption to herself and to her husband of a male child aged three years. The question of validity of this adoption
came before the Madras High Court and an appeal was preferred to the Privy Council. It was established under Hindu Law as it
prevailed in Madras province such an adoption was not valid as the window had no capacity to adopt to herself.
The Indian law is to take the view that an adoption valid by ‘lex domicilii’ of the adopter will be recognized in India, whether the
adoption is made in the country of the adopter’s domicile or in some other company.
Adoption by Foreign Parents
In India there is no separate statutory law for inter-country adoptions. The question regarding the validity of inter-country adoption
was first debated In re Rasikal Chhanganlal Mehta [AIR 1982 Guj. 193], whereby the court held that inter-country adoptions under
Sec.9(4) of the Hindu Adoptions and Maintenance Act, 1956 should be legally valid under the laws of both the countries. The
adoptive parents must fulfill the requirements of law of adoption in their country and must have the requisite permission to adopt
from the appropriate authority thereby ensuring that the child would not suffer in immigration and obtaining nationality in the
adoptive parents country.
In Anokha v. State of Rajasthan [AIR 2004 SC 2820], the Apex Court had held that the guidelines would not be applicable where
the child is living with his or her biological parents and who have agreed that he or she is to be given in adoption to a foreign
couple known to them. The Court in such cases has to deal with the application under Section 7 of the Guardians and Wards Act,
1890 and dispose of the same after being satisfied that the child is being given in adoption voluntarily with the parents being aware
of the implications of adoption, i.e., that the child would legally belong to the adoptive parents’ family; that the adoption is not
induced by any extraneous reasons such as the receipt of money etc; that the adoptive parents have produced evidence in support
of their suitability; and finally that the arrangement would be in the best interest of the child.
The Hague Convention, 1993 on Inter-Country Adoptions
The Hague Convention on the Protection of Children and Co-operation in respect of Inter-country Adoption, 1993 was ratified by
the Government of Indian on 6th June, 2003 and signed by the United Kingdom on 12 January, 1994. The purpose of the
Convention is to establish safeguards to ensure that inter-country adoptions take place in the best interests of the child and with
respect for his fundamental rights as recognized in international law, to establish a system of co-operative among contracting States
to ensure that those safeguards are respected and thereby prevent abduction, the sale of, or traffic in children; and to secure the
recognition in Contracting States of Adoptions made in accordance with the Convention.
The convention applies where a child who is habitually resident of one Contracting State (The State of Origin) has been, is being
or is to be moved to another Contracting State (the Receiving State), either after his adoption in the state of origin by a person or
persons habitually resident in the Receiving State, or the purposes of such an adoption in the Receiving State or in the State of
Origin.
There is no express mention of choice of law in the 1993 Hague Convention. Instead, the convention sets out the reciprocal
obligations resting respectively upon the authorities in the State of Origin and in the Receiving State. The success of the
convention mostly depends a large extent on effective collaboration between the two States.
Article 5 of 1993 Hague Convention determines the duties of the Receiving state in adoption. It provides that a convention
adoption can proceed only if the competent authorities in that State have determined that the prospective adoptive parents are
eligible and suited to adopt, and have been counseled as may be necessary, and that the child is or will be authorized to enter and
reside permanently in the Receiving State18.
Thus, the State of Origin takes the responsibility for ensuring that children are made ‘adoptable’ (i.e., when all the legal
requirements are met) while the Receiving States take the responsibility for the suitability of the applicants and in the event of
only where both agree that the adoption should proceed can be finalized.

Status of Guardian and Ward

The relationship of guardian and ward, when created constitutes one of the status i.e., the legal position with rights and duties.
Meaning of Guardian
A guardian, in the popular sense is one who guards, preserves, or secures. Guardian is a generic term, which applies in legal usage
to person whose duty it is to protect the rights, whether of person or property , of some other person, his ward, who as in the case
of minors is conclusively presumed to be incompetent to manage his affairs.
Guardian means a relation or other person to whom the care, nature or custody of any child falls by natural right or recognized
usage, or who has accepted or assumed directly the care, nature or custody of any child, or in case of dispute the holder of a
certificate of guardianship from a competent court.
According to Sec.4(2) of Guardians and Wards Act, 1890 (Act 8 of 1890), ‘guardian’ means a person having the care of the person
of a minor or of his property, or of both his person and property.
Both under the Indian Law and English Law a natural person below the age of 18 years in known as minor. The law of
guardianship and custody is concerned with minors. Law of guardianship implies the exercise of parental control and care over
child by parents or in their absence, by the guardian.
The entire law of guardianship may be divided into guardianship and custody. In the English domestic and Indian domestic law,
there exists a clear distinction between guardianship and custody. But in private international law this distinction is not yet
recognized , either in respect of of jurisdiction or in respect of choice of law.
Meaning of ‘Ward’
‘Ward’ means a minor for whose person or property, or both there is a guardian. ‘Ward’ is a person, who by reason of minority
lunacy or other incapacity is under the protection or control of a guardian.
When the child during its minority loses its father or both parents, or when the parents have been found unfit to retain custody of
their child, most legal systems provide for the appointment of a person of full age and understanding to stand in the position of
father of the child and to safeguard his personal and proprietary interests. In English Law such a person is known as a ‘guardian’
and the child under his care as a ‘ward’. Guardian may be appointed by deed or will of the child’s father by agreement between the
child’s parents, or depending on circumstances, by the Court.
Guardianship and Custody
‘Guardianship’ is the condition or fact of being a guardian.
The word ‘custody’ means ‘care keeping’ charge of a minor. The word ‘custody’ denotes rights and duties in relation to an infant
regarded as an indivisible whole, that is to say, the charge of the infant’s person coupled with the right to determine the manner of
the infant’s upbringing.
A natural person below the age of eighteen years is a minor. The law of guardianship and custody is concerned with minors. Law
of guardianship implies the exercise of parental control and care over children by parents or in their absence or when they are
incapable of exercising it, by the guardian19.
Choice of Law relating Guardianship in Private International Law
Parental control can be exercised only in accordance with the law of the place where it is purported to be exercised. A foreign
parent desiring to exercise his parental control over the child in India can do so only in accordance with the Indian Law. On the
other hand, whether or not parent child relationship exists will be determined by the law of domicile of the parent. It is an
established rule of English private international law that a parent domiciled abroad can exercise his parental control over a child in
England, whether born of polygamous or monogamous marriage only in accordance with English law, whenever the English courts
have jurisdiction to pass an order in respect of a child [Johnstone V. Beatie (1843) 10 Cl. & F. 42].
Jurisdiction of Guardianship in England
An infant present in England is within the Queen’s allegiance. He is entitled to special protection owned by the Queen as parens
partiae to infants and entitled to the protection of the royal courts. The English Court therefore, possesses jurisdiction to appoint a
guardian or to make an order as to custody, not only where the infant is a British subject but also where, though an alien, he is
domiciled or merely resident in England.
In re D[(1943) Ch. 305], a minor of German Nationality, whose parents were believed to be in a Nazi Concentration Camp was
brought to England and kept in a hostel. From the hostel it was removed and detained by some of the relatives of the child. The
court exercised jurisdiction in appointing the guardian on the basis of the presence of the child within the jurisdiction.
In Mckee v. Mckee [(1951) 1 All ER 942], a child was brought to Ontario in violation of the order of a California Court under
which custody was committed to mother. In the Welfare of the Child the Ontario Court exercised jurisdiction and committed
custody to the father. This decision was upheld by the Privy Council. Now, the English Courts exercise jurisdiction over a child
who is ordinarily resident, though not present.
Jurisdiction of Guardianship in India
In India, the Chartered High Court have all along exercised the same jurisdiction as English Courts in respect of guardianship.
Clause 37 of the Charter of the Supreme Court at Bombay and Clause 25 of the Charter of the Supreme Court at Calcutta and the
Supreme Court of Madras also authorized the Courts to appoint guardians and keepers for infants and their estates, according to
the order and course observed in that part of Great Britain [(1861) 9 HLC 440].
The nationality as a basis of jurisdiction has some practical utility. The main object of passing orders on the basis of nationality is
that they may not be effective in those cases were the child is outside the jurisdiction.
Recognition of Foreign Guardianship Orders in England
In Stuart v. Bute , it was said that the decisions does not imply that foreign guardians would be totally ignored in England and
would be regarded as strangers who could not do anything even if their ward was kidnapped. In the absence of a guardian
appointed by English Courts, foreign guardian would be recognized in England. In case the position of a foreign guardian is not
contested in England, he would be allowed to exercise his powers.
As regards the foreign guardian ‘s’ power over the ward’s property situated in England, the guardians power of disposal should be
regarded by the law of the country to which he owes his appointment as guardian. The English Courts adhere to the principles of
welfare of children.
Recognition of foreign guardianship and custody orders in India
In respect of recognition and enforcement of recognition and enforcement of foreign guardianship and custody orders, the Indian
law is similar to that of English law. The Indian Courts have been decided on the basis of English Precedent.
In Marggarate Maria Pulparampil Nee Feldman v. Dr. Chacko Pulparampil [AIR 1970 Ker 1], an Indian Christian domiciled in
Indian went to West Germany for higher studies and married there a German domiciled woman. Two children were born of this
marriage. But the marriage broke down and the mother obtained a decree of divorce from a German Court and also an order of
custody of children in her favour. He reached India with children defying the order of the German Court. The mother reached India
and filed an application for custody of children. The Kerala High Court said that the court would recognize the German order of
custody and give effect to it, as to do so would be in the Welfare of the Children.

Foreign Custody Orders

English Law
The children act 1989 introduced major changes in the law relating to children. Significant change in the English law was apparent
with the introduction of legislation governing the recognition and enforcement of orders falling under part I of the family law act
1989 and made elsewhere in the United Kingdom and with two international convention given the force of law in England by the
means of the child abduction and custody act, 1985 , which provide for the recognition of custody orders granted in, or custody
rights under the law of , a number of foreign countries.
Recognition of foreign orders regarding custody
Common Law Rules
The Child Abduction and custody act, 1985 and its convention apply to a relatively restricted number of countries. Hence, the
common law rules apply in the case of all orders made in other ‘Non-Convention’ countries outside the UK.
According to common law, no automatic recognition or enforcement isgiven to a foreign custody order. Even though a custody
order has been made by a foreign court, the English judge can still make such order as he thinks is in the best interest of the child;
for national status is merely on of the factors which the judge in exercising his discretion will take into consideration.
In Osman v Elasha [(2000) Fam 62]
The court of Appeal held that the welfare principle is not an absolute standard and said “What constitute the welfare of the child
must be subject to the cultural background and expectations of the jurisdiction striving to achieve it”.
After 1980 Hague and Council of European Conventions
The English law does not start from any a priori assumptions about what is best for any individual child. It looks at the child and
weighs a number of factors in the balance. Only if the decision is so plainly wrong that he must have given far too much weight to
a particular factor is the appellate court entitled to interfere.
Under Indian Law
The question often comes, before the Indian Courts recognition and enforcement of foreign order. The court followed the common
law in this regard. In Mrs. Kuldeep Sidhu v Charan Singh [AIR 1989 Punjab & Haryana 103], it seems that marriage is broken
down and mother obtained custody order in her favour from a Canadian court. Armed with the Canadian order, mother came to
India and wanted the custody of the children from grandfather. On their refusal to do so, she filed proceeding in Indi. Mother was
given custody by the order of the court.

List of references
Sr.No Details
1 V. C. Govindaraja - The Conflict of Law in India
2 Paras Diwan - Private International Law
3 Setalvad - Conflict of Laws.
4 S.K.Kapoor - Private International Law

1. Dr. S.R.Myneni, “Private International Law”, 1st Edition (2013) , Asia Law House
2. Paras Diwan and Peeyushi Diwan, “Private International Law” 4 th Edition (1998) Deep and Deep publication
3. Dicey and Morris , “The Conflict of Laws” 8th Edition, Sweet & Maxwell publication
4. Supra N2
5. Mulla, “Mohammedan Law” 17th Edition p. 255
6. Section 4(1) Parsi Marriage and Divorce Act 1936
7. Dr. S.R.Myneni, “Private International Law”, 1st Edition (2013) , Asia Law House
8. Dr. S.R.Myneni, “Private International Law”, 1st Edition (2013) , Asia Law House
9. Supra N1
 10. Section 1(1) of the Matrimonial Causes Act 1973
11. Tyabji, “ Mohammedan Law”, 4th Edition , p. 176
12. Supra N1
13. Supra N1
14. North P M & Cheshire G C, “Private International Law”, Butterworths, New Delhi, 13th edn. 2004.
15. Supra N1
16. Supra N2
17. Supra N2
18. Supra N14
19. Supra N1

Unit IV - Contracts

Course Outline of Unit IV: Contracts

This Unit contains discussion on following topics :
Contract - Negotiable Instruments - E - Contracts - Private International Law relating to Corporations - Jurisdiction over
Corporations - Insolvency Jurisdiction and effects of Foreign Insolvency Proceedings

Disclaimer: This subject content as provided under AIR Online Education Support Suite is only Study (Reference) Material for
supplementing your Academic Classroom (Text Book) Learning. These are not Text Books on the Law Subjects.

Introduction
Formation of a valid contract depends upon various elements like: there must be an offer which is accepted by the other party with
his free consent it means the consent should not be vitiated by the elements like fraud, misrepresentation, undue influence,
coercion or mistake, lawful consideration, and the capacity of the parties to make the contract1.
It is not necessary that the law of different countries on any of these elements may be the same. The rules and regulations of
different countries regarding the formation of a valid contract may differ from each other and here arises the conflict of laws on
this aspect also. Basically, the problem which arises in this connection is regarding the governing law i.e., whether it should be the
law as intended by the parties, or lox-loci contractus, or some other law, is to be the governing law in such cases.
Elements of Contract
Offer and acceptance
The elements which are necessary for the formation of a valid contract are offer and acceptance, but there are different rules in this
regard in different countries. For example, as in English law and Indian law, when the contract between the parties is made
through post, the communication of acceptance, and thus the contract, is completed when the letter of acceptance is posted. The
contract is considered as binding even in a situation when the letter of acceptance is delayed, or even lost in transit. But in some
countries like Sweden, Norway, Denmark and Germany the contract is not considered as completed until or unless the offeror has
received the letter of acceptance.
Capacity to contract
One of the principles, is the “lex loci contractus”, where the governing law determines the capacity of the parties to contract. This
principle was applied in some old English decisions and also accepted by some eminent jurists and writers in their works. Another
test to determine the capacity of the parties is “Lex domicilii” that means law of the place of which the parties have domicile. This
is also not proved to be so satisfactory. Because this can be a big barrier in the field of trade and commerce, as a person would then
carry the incapacity with him, wherever he goes, e.g., it would be unreasonable if a person over eighteen years of age should be
able to escape liability for the price of goods sold and delivered to him in a London shop on the ground that he is still an infant by
his lex domicilii2.
Consideration
The question of consideration is decided by different rules in different systems of law. There are various rules in different systems
of law in this regard, like the presence of consideration is needed for the validity of a contract in India, England and U.S.A., while
an agreement is valid even without consideration, in some other systems of law, like Scotland, Germany and France. Only an
expression to bind oneself in clear words is required in the later systems of law. The distinction between the different systems
regarding the doctrine of consideration can be better understood with the help of an example i.e., like in India, consideration by the
promisee or any other person is recognized as valid consideration Chinnaya v. Ramaya [(1882) 4 Mad 137], while in English Law
the consideration should be furnished by the promisee and no one else. Since it is a matter connected with the creation of a
contract, which, as has been noted above, is governed by section 2(d), the Indian Contract Act, 1872, will be the proper law
applicable to the creation of contract.
Matters affecting contractual obligations
With respect to the contractual obligations, it is considered that if a contract has been lawfully entered into, then the law of a
particular place is the proper law, but there are certain problems in this regard. One of them is: what should be considered as the
proper performance of the contract so that the promisor can be discharged from his contractual obligations by such performance.
There can be all the possibilities that in the matter of performance of any particular contract lex loci solutionis and the proper law
may not be the same. In such situation, which law will be applicable is to be determined by the courts.

Commercial Contract
Meaning of ‘Commercial’
Normally, every activity which is carried on with a motive of gain on making money shall be treated as commercial.
Meaning of ‘Contract’
According to Tomlin’s Law Dictionary, contract is “An enforceable covenant or agreement between two or more persons, with a
lawful consideration or cause”.
As per Story, “Contract is a deliberate engagement between competent parties, upon a legal consideration to do or to abstain doing
some act”.
Concept of contract in Public International Law
The nations of the world have been trading with each other. In the early stages of the international trade and commerce, there came
into existence a body of rules, compendiously called the law of merchants, which regulated most of the aspects of international
trade and commerce.
Since the international law trade and commerce give rise to problems of conflict of laws, it was inevitable that a body of
conflictual rules should be developed and regulate the commercial activities whenever they have a foreign element.
There have been attempts at developing uniform law applicable to all international contracts at international level, though not with
much success. In 1939 the Institute of International Law at Rome prepared a draft relating to the contracts for the sale and
purchase of movable property.
Again at the sixth Hague Conference three drafts were prepared on the unification of relating to sale and purchase of movable
property, but none could be adopted. The 1956 Hague Conference considered the question as to the law applicable to international
contracts relating to sale and purchase of tangible movables, but again, the conference could not reach to any agreement.
In the Ninth Hague Conference held in 1960 some agreements have been arrived at on some aspects of international contracts. In
the 1964 Hague Conference a convention relating to international sale and purchase of goods has been passed. These international
agreements touch the problem only on the fringe, and therefore solution to the problem of conflict laws in commercial contracts
has to be found by the private international law of each individual country.
How a contract is formed, the laws of the world differ. Laws of the world also differ as to what effect is to be given to the
obligation or obligations arising out of valid contract. However, the theory that is gaining almost world – wide support and
acceptance is the theory of proper law of the contract.

Proper law of Contracts

Theory of Proper law of Contracts
English Law, until fairly recently applied the proper law of the contract, which was a succinct expression to describe the law
governing many of the matters affecting a contract.
According to Lord Wright, “The proper law of the contract means that law which the English Court is to apply in determining the
obligations under the contract. English law in deciding these matters has refused to treat as conclusive any rigid or arbitrary criteria
such as lex loci contractus or lex loci solutionis and has treated the matter as depending on the intention of parties to be ascertained
in each case on a consideration of the term of the contract, the situation of the parties, and generally of all the fact”.
Dicey formulated the rules of proper law of contract thus: “The term ‘proper law of contract’ means the law or laws by which the
parties 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”.3
Presumptions in determining the proper law of contracts
1. The Lex loci contractus

The initial presumption, based on the normal character of a contract containing no foreign element, is in favour of the law of the
place where the contract is made.

2. The lex loci solutionis

Although equally as strong as the presumption in favour of the law of the place of contracting is that in favour of the law of the
place of performance.

3. The lex situs of immovables

Where immovable are the subject matter of a contract, a presumption exists that the proper law of contract is the lex situs of the
immovables. This, however, is no more than a presumption and should be distinguished from the law which governs the
conveyance of immovables, which is always the lex situs.
 4. Law of the flag

The presumption that the proper law is that of the flag operates in the case of all maritime contracts. The presumption is
particularly strong in the case of contracts made during the course of the voyage, such as bottomry bonds.
Present status
The Judicial tendency of not giving much weigh to presumptions became evidence from the decision of the Assunzione [(1954)
P150]. This trend continues, and it may be now taken that the courts have abandoned the approach of presumptions. Thus, the
position that emerges is that the lex loci contractum lex loci solutionis or the law of the flag are no longer regarded as
presumptions.
Thus the position that emerges is that the lex loci contractum lex loci solutionis or the law of the flag are no longer regarded as
presumption, but they are, like any other facts to the proper law of the contract and should be looked upon as such.

Formal Validity (Form of Contract)

Under Traditional English Common Law Rules
It is a general principle of English law that the formal validity of a contract is determined by the lex loci contractus. Cheshire’s
view is that even now juristic opinion subscribe to the view that compliance with the lex loci contractus is sufficient for the formal
validity of the contract.
The Giuliano and Lagarde Report provide that the formal validity includes “every external manifestation required on the part of a
person expressing the will to be legally bound, and in the absence of which such expression of will would not be regarded as
effective.
It would be best if the concept of formal validity were to be given an independent community meaning. If it is left to the national
laws to determine whether the issue is one of formal validity, the English courts will need to take a broader view of the concept
than they have in the past.4
Under the Rome Convention
Article 9 of the Rome Convention deals with the issue of formal validity of contracts a rule for unilateral acts intended to have
legal effect and special rules for consumer contracts in respect of immovable property.
The General Rules
i. The contract is concluded between persons who are in the same country

Article 9(1) of the Rome Convention provides that: “A contract concluded between persons who are in the same country is
formally valid if it satisfies the formal requirements of the law which governs it under this convention or of the law of the country
where it is concluded.
ii. The contract is concluded between persons who are not in the same country

Article 9(2) of the Rome Convention provides that, “A contract concluded between persons who are in different countries is
formally valid if it satisfies the formal requirements of the law which governs it under this convention or of the law of one of those
countries.
iii. Acts intended to have legal effect

Article 9(4) of the Convention is concerned with formal requirements in respect of acts intended to have legal effects, such as an
offer or notice of termination and is analogous to Article 9(1) in that it refers, as alternatives, to the law applicable under the
Convention of the law of the Country where the act was done.
The special rules for particular contracts
i. Consumer Contracts

Article 9(5) of the convention provides that the formal validity of a consumer contract is governed by the law of the country in
which the consumer has his habitual residence.
ii. Immovable Property

Article 9(6) of the Convention provides that: “Notwithstanding Para 1 to 4 of this Article i.e. Article 9, on contract the subject
matter of which is a right in immovable property or a right to use immovable property shall be subject to the mandatory
requirements of form of the law of the country where the property is situated if by that law those requirements are imposed
irrespective of the country where the contract is concluded and irrespective of the law governing the contract”.5

Material Validity
Under Traditional English Common Law Rules
Some contracts made by parties having capacity may not be enforced in law. In English and Indian law a contract to commit
criminal offence, a contract in the nature of champerty, a contract in restraint of trade and a wagering contract are unenforceable in
law. These and like matters relate to ‘material or essential validity of the contract.’ However, laws of different countries differ as to
factors which render contract materially invalid.
Material validity of the contract is governed by proper law of the contract. The House of Lords, in Kahler v Midland Bank Ltd.,
[(1950) AC 24], held that, “the courts in this country will not compel the performance of a contract if by its proper law
performance is illegal. It further held that a wagering contract will not be enforceable if its proper law in English law, even though
it is recoverable in some other country with which it has close contact.
In regard to material validity of the contract, it appears that role of lex loci contractus has been totally ruled out. A contract which
is materially void by its proper law will not be enforced by English Courts even if it is valid under the lex loci contractus. A
contract which is materially valid by its proper will be held valid in England, even if it is materially in valid by the lex loci
contractus.
Under Rome Convention
Article 8 of the Rome Convention is entitled ‘Material validity’ and contains two provisions:

Meaning of Material validity

Material validity covers a wide variety of different issues. Section 8 of the Rome Convention covers both the existence and validity
of a contract and the existence of consent. The intention is that not only are issues of material validity in the English sense covered,
but also issues relating to formation of the contract. The intention is that not only are issues of material validity in the English
sense covered, but also issues relating to formation of contract.

The Putative applicable law

Article 8(1) of the Rome Convention states that, “the existence and validity of a contract, or of any term of a contract, shall be
determined by the law which would govern it under this convention if the contract or term were valid”.

The Safeguard in relation to consent

As per Article 8(2) of the Rome Convention, “nevertheless a party may rely upon the law of the country in which he has his
habitual residence to establish that he did not consent if it appears from the circumstances that it would not be reasonable to
determine the effect of his conduct in accordance with the law specified in the preceding paragraph.”6

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 satisfsction; by novation or by change in legislation.

i. By performance
According to Article 10(1)(b) of the Rome Convention, the obligation of contract must be performed. Regarding the manner of
performance, Article 10(2) of the Rome Convention provides that, “In relation to the manner of performance and the steps to be
taken in the event of defective performance regard shall be had to the law of the country in which performance takes place”7

ii. By impossibility of performance

A contractual obligation has been extinguished by impossibility of performance is governed exclusively by the proper law of
contract. In Jacob v Credit Lyonnais [(1884) 12 QBD 589], the question was whether the contract was discharged by impossibility
of performance. The proper law of contract was English law and the lex loci solutionis was French law. The court held that this
matter is governed by English law.

iii. By Novation
Novation consists of two elements:

Discharge of original debtor, and

His substitution by another.

Novation does not in any sense mean transfer of property. The discharge of the original debtor by novation is governed by the
proper law, whether the substitution is by legislation or by a voluntary act.8
iv. By outbreak of war

The outbreak of war affects certain type of contracts and either abrogates or suspends the obligations and liabilities arising under
them. Whether or not a contract has been abrogated or suspended by the outbreak of the war does not depend upon the situs of the
debt, but, it seems, upon the proper law of the contract.
v. By legislation

The discharge of contractual obligation by legislation, the proper law of the contract governs the discharge. In Employees’
Liability Assurance Co. v Sedgwick Collins & Co. [(1927) AC 95], ‘annulment’ of rights under insurance policy by the soviet
legislation was held valid, the law of the Soviet Union being the proper law.

Negotiable Instruments
The Negotiable Instruments, such as bills of exchange, cheques, hundis and promissory notes have been of great importance ever
since the human beings started with trade and commerce. Negotiable Instruments are a special type of contracts which, in the days
of ever increasing international trade and commerce and intercourse are of particular interest and significance to international law.
Since a negotiable instrument represents a debt, it is regarded as a species of tangible property. The greatest importance of the
negotiable instrument lies in the fact that they are negotiable9.
The outstanding feature of a negotiable instrument is that the series of contract, which are entered into by the drawer, the acceptor
and the endorser of bill of exchange, or by the maker or endorser of the promissory note, gives rights to several rights and
liabilities, of these several parties, and these rights and obligations of parties are different and distinct from each other.
In the absence of a contract to the contrary, the liability of the maker or drawer of a foreign promissory note, bill of exchange or
cheque is governed in all essential matters by the law of the place where he made the instrument. The respective liability of the
acceptor and endorser, in such cases will be governed by the law of the place where the instrument is payable.
For example: If a bill of exchange was drawn by A in California where the rate of interest was 25% it was accepted by B, payable
in Washington, where the rate of interest was 6% and the bill was endorsed in India and was dishounoured. On an action on the bill
being brought against B in India, B would be liable to pay interest @ 6% only, but if A was charged as drawer, A would be liable
to pay interest @ 25%.
When a foreign instrument made is payable in a place different from that at which it is made or endorsed, the law of place where
the instrument is made payable would determine what constitutes dishonour and what notice of dishonour is sufficient10.
If the instrument is made, drawn, accepted or endorsed abroad, but it is in accordance with the law of India, any subsequent
acceptance or endorsement thereon, India will not be regarded as invalid, because the agreement as evidenced by such an
instrument is invalid according to the law of such foreign country.
The negotiable instruments are a special type of contract to which the proper law doctrine cannot be applied the same way as it is
applied to ordinary mercantile contracts. The negotiable instruments have to be in a form which indicates with dead certainty the
rights and liabilities that it embodies. The proper law of negotiable instrument can be either the lex loci contractus or the lex loci
solutionis.
Special Rules of Evidence
Presumption as to negotiable instrument: For deciding cases in respect of rights of parties on the basis of a bill of exchange, the
Court is entitled to make certain presumptions until the contrary is proved. They are:
a. That the negotiable instrument was made or drawn for consideration and every party who made itself bound in respect
thereof did so for consideration
b. That the negotiable instrument was drawn on the date shown on the face of it
c. That the bill of exchange was accepted before its maturity
d. That the negotiable instrument was transferred before its maturity
e. That an instrument which has been lost was properly stamped

Types of Negotiable Instruments

Various types of negotiable instruments, for the purpose of private international law are:

Bills of exchange

Cheques

Promissory notes

Bank notes

Bearer debentures

dividend warrants

English Law
The Bills of Exchange Act 1882, defines a bill of exchange as “an unconditional order in writing, addressed by one person to
another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or
determinable future time, a sum certain in money to , or to the order of , a specified person or to bearer” [Sec.4].
The Bills of Exchange Act 1882, does not make any provision relating to capacity. In general principle, the capacity to take a bill
should be governed by the lex loci contractus.
Formalities
The original instrument is formally valid if it complies with the formal requirements of the place of issue and the supervening
contracts are formally valid, if they comply with the law of the place where such contracts are made. Thus acceptance will be
formally valid if it complies with the law of the place where it was made; endorsement is formally valid if it complies with the
formal requirement of the place where endorsement was done; and acceptance supra protest is valid if it complies with the formal
requirements of the place where it was made.
The ‘place of issue’ or the ‘country of issue’ is the place where the instrument is first handed over to the holder, and not the place
where it is written and signed11.
In the case of Koechlin v. Kestenbaum Bros [(1927) 1 KB 616 on appeal (1927) 1 K.B 889], a bill was , drawn in Paris to the order
of P, signed and endorsed by X’s son with his authority, but without any indication on the face of the bill of such authority. This
form of endorsement and signature were valid by the French Law but not by English Law. The English Court held that the French
Law governed the formalities and , therefore, the bill was valid.
In the case of Alcock v. Smith [(1892) 1 Ch. 238], a bill of exchange drawn by and upon the an English firm and payable in
England to the order of A was endorsed and delivered in Norway by A to B. While the bill was with B it was seized by a
judgement – creditor and was sold through judicial sale by auction in Norway. The sale was valid by the law of Norway and
passed a valid title to the auction-purchaser, but it was not valid by English Law. The Court of appeal upheld the validity of the
transfer by applying Norwegian law, as the lex loci actus. Norway was also the lex situs of the bill.
Indian Law
The Negotiable Instrument Act 1881 deals with the Indian conflict of laws rules relating to negotiable instruments. There rule are
not exhaustive and have to be supplemented by the general rules of Private International law. The negotiable instruments Act
1881, is silent on the question of capacity to enter into the main and supervening contracts under the negotiable instruments. But in
the case of T.N.S. Firm v. Mohammed Husain [65 M.L.J.458], it was held that the capacity to enter into the main and supervening
contracts under a negotiable instrument is governed by the lex loci actus.
Formalities
The Negotiable Instruments Act 1881, is silent on the formalities. However Section 136 lays down that in instrument made outside
India will be valid as to the formal validity if it is valid as to form under the Indian Law, even if it is invalid under the foreign law.
Under the Indian law the governing law of the formalities is the lex loci actus, even though there is no direct Indian Authority12.
Section 136 of the Negotiable Instruments Act , 1881, lays down the rule that the invalidity of an instrument under foreign law
does not render it invalid as to the subsequent contracts entered into in India provided the instrument is formally valid under the
Indian Law. The provision of the section is confined to persons who become parties to the instrument by acceptance or
endorsement in India. It would not cover a case where a person sought to be made liable on the instrument had become party to it
in any other country.
The Indian Law makes a distinction between the liability of the maker or drawer and acceptor and endorser. In the former case it is
the lex loci actus, that is the law of the place where the instrument is made, which governs the material validity of the instrument,
while in the latter case it is the lex loci solutionis, i.e. the law of the place where the instrument is made payable which governs
the essential validity.
Sec.135 of the Negotiable Instruments Act 1881, deals with dishonor and notice of dishonor specifically.
Illustration: A bill of exchange drawn and endorsed in India, but accepted payable in France, is dishonored. The endorsee causes, it
to be protested for such dishonor, and gives notice thereof in accordance with the law of France, though not in accordance with the
rules contained in respected of bill which are foreign. The notice is sufficient.
The Negotiable Instruments Act , 1881 does not deal with the transfer of negotiable instruments. It is submitted that the lex situs
principle would apply to the transfer of negotiable instruments.

Jurisdictional Issues Related to E-Contracts

As the internet is a unique market place in terms of market penetration, any computer, anywhere in the world, connected to the
internet can access a web site and may conclude, though that site, an e-contract. The nature of the internet as a world wide web of
linked networks and computers also, from time to time, could give rise to issues pertaining to jurisdictions13. When, for instance,
an Indian company accepts an offer from an American company over the internet to render certain service in Singapore and the
ISP of the Indian Company (and its server) is in London and that of the American Company is in Colombo, the determination of
the choice of law would indeed be a challenging task, leading to consequences not intended by the contracting parties.
The dispute resolution mechanism based on territoriality faces a great number of challenges when used to settle the disputes arising
on the internet. The internet is international in character and a person can have access to it from almost any place on the earth,
hence, multi-jurisdictional. On the internet, digital data may travel through various countries and, hence, different jurisdictions in
order to reach its destination.
Basically, cyberspace is regulated by the power exercised by its operators or users of World Wide Web leading freedom as to
choice of rules and enforcing them in cyberspace which is independent of any territorial government. Hence, the preliminary issue
is how the traditional territory based jurisdiction principle can be applied in the cyberspace.
According to Briggs, the fundamental importance to determine jurisdiction is to enable the parties to predict the magnitude of their
liability and consider the legal and practical expense of defending a dispute in a specific jurisdiction. In order to determine the
jurisdiction of a dispute between parties located in different jurisdictions, geography or location of the parties or the place where
their commercial activities take place are used as factors connecting the parties, their contract or their dispute to a particular
jurisdiction according to international private law rules14.
The internet is network of networks, some of the networks are closed networks, not linked to other computers or networks while
many of them are widely connected capable of rapidly transmitting information without direct human participation or control and
also having the automatic ability to reroute the information if links are damaged. Messages on the internet, if required, travel
through many routes. Internet is totally indifferent to the physical location of the machines between which the information is
transmitted and there is no physical link between an internet address and a physical jurisdiction. One major and direct issue
challenging legislators is that while most laws are based on territorial nexus, the internet denies the concept of territoriality15.
With the advent of the internet, cross-border transactions have increased and also the disputes arising out of these transactions,
raising more complex and numerous questions of jurisdiction and applicable law.
Private International Law or conflict of laws is the body of law that strive for resolving issues that arise out of the presence of a
foreign component in legal relationships. Globally, Private International Law is referred to resolve questions as to jurisdiction,
applicable law and enforcement of foreign judgments. Generally, Private International Law is a part of the municipal law and
essentially aims to regulate conduct between private parties. It assumes international character because of the existence of a foreign
element in legal relationships. Cross-border movement of persons and goods, for business and other purposes existing for
hundreds of years is the primary catalyst of private disputes comprising foreign elements.
The following issues arise in the context of Private International Law:
1. Jurisdiction to adjudicate a dispute at a particular location (i.e., the forum or situs);
2. Applicable law to the dispute; and
3. Enforcement of judgments in courts in foreign jurisdictions

Many of the transactions on the Internet are international in nature and possibly involve many jurisdictions having connection with
a particular dispute in case a dispute arises. In such cases, if every court in possibly every country will assume jurisdiction over
that dispute, it would certainly result in hampering trade.
The whole concern with internet jurisdiction starts with the presence of multiple parties located in various parts of the world
having merely a virtual connection with each other. Traditionally, two areas are required to be determined to decide upon the
jurisdiction– firstly, the place where the defendant resides, or secondly, where the cause of the action arises. However, due to
extra-territorial nature of internet, both of these are challenging to establish with any certainty. Even a childishly simple transaction
can create a mind-boggling issue of jurisdiction on the internet.
Legal Principles on Jurisdiction in India
The Indian jurisprudence with regard to jurisdiction over the Internet is almost non –existent. Hence, there has been very less
development of Private International Law rules in India. Furthermore, there have been few cases in the Indian courts where the
need for the Indian courts to assume jurisdiction over a foreign subject has arisen. Such jurisprudential development would,
however, become essential in the future as the Internet sets out to shrink borders and merge geographical and territorial restrictions
on jurisdiction16.

Private International Law Relating to Corporations

Most domestic systems of law confer artificial or legal personality on certain entities, of which the corporations are the most
obvious and common instance. Once an entity is considered to be a legal person, it is natural and logical to attribute it the most of
the characteristics of a natural person. The private international law is too as much concerned with the artificial person as with
natural persons. 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 the status , capacity, rights, liabilities and obligations of an artificial person, it is necessary to know
its connections with a particular system of law. It is also necessary to know the domicile, nationality and residence of a company
as they are as much connecting factors as in the case of natural person.
Domicile
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.
Apart from the companies, in some countries certain institutions, foundations and bodies are regarded as juristic persons. For
example ,in some European countries unincorporated partnerships are clothed with legal personality. In Indian Law Hindu idols,
Hindu Maths and certain religious and charitable institutions and foundations are regarded as juristic persons. It is submitted for
the purpose of private international law such bodies and foundations and institutions should also be recognised as juristic
person17.
Ordinarily every company functions subject to the following two limitation on its capacity:
a. The limits of the capacity of a company are laid down in its constitution. No company has the capacity to go beyond
these limitations and in case it does soemthing in access of its powers, the doctrine of ultra vires applies.
b. The limits on the capacity of a company may also be imposed by the laws of the place where it is functioning.

Subject to these limitations, the law of the domicile of the company governs not only matters relating to its constitution and
dissolution but also all the internal matters.
Winding up of Companies
English Law
It appears to be settled law that just as company’s incorporation is determined by the law of its domicile so also its dissolution and
winding up as well as the amalgamation of the companies (National Bank of Greece and Athens v. Metliss [(1958)A.C. 509]).
In respect of companies registered in England, the English court has jurisdiction to wind it up, even though the company is formed
to carry on business abroad, or consists of entirely or dominantly of foreigners.
Under Section 398 the Companies Act 1948,an unregistered company includes a company incorporated outside the United
Kingdom Like any other unregistered company it may be wound up in any of the following circumstances:
a. If the company is dissolved
b. If the company has ceased to carry on business
c. If the company is carrying on business only for the purpose of winding up its affairs
d. If the company is unable to pay its debts
e. If the court is of the opinion that it is just and equitable that the company should be wound up.

The winding up of a company is governed by the English Law. The result of the winding up order is the termination of Company’s
beneficial interest in its property. Once a winding up order is made, no action or proceeding against the company can be continued
or filed without the leave of the court.
Indian Law
Under the Indian Companies Act 1956, the Indian Courts have jurisdiction to entertain winding up proceedings in respect of the
following two categories of the companies :
a. When a company has been incorporated in India, and
b. When it is an unregistered company

In respect of the former the Indian Courts have jurisdiction irrespective of the fact that the entire business of the company is
carried on abroad, or that all its members are foreigners. In such winding up proceedings, Indian as well as foreign creditors can
prove their debts (Rajah of Vizianagram v. Official Receiver and Liquidator [AIR 1962 SC 500]). Part X of the Indian Companies
Act deals with the winding up of the unregistered companies.
The foreign companies fall within the meaning of unregistered companies. A bank incorporated in a foreign country is an
unregistered company and winding up proceedings can be filed in India.
In Mohan Lal v. Chawla Bank Ltd [AIR 1949 All. 778], before petition of India, a company incorporated under the Indian
Companies Act 1913, had its registered office in North Western Frontier Province and a branch of office in the United Provinces.
After partition it got itself registered as a foreign company. It was obvious, it was so held, that for the purpose of Sec. 582 its
position was that of an unregistered company.
A foreign company carrying on business in India can be wound up as an unregistered company under Sec. 582 of the Act. Sec
Section(4) of Sec. 588 lays down the circumstances in which a foreign company may be wound up. These are :
a. If the company is dissolved , or has ceased to carry on business or is carrying on business only for the purpose of
winding up its affairs
b. If the company is unable to pay its debts
c. If the court is of the opinion that it is just and equitable that the company should be wound up.

It appears that the Indian Court will have jurisdiction to entertain a petition for the winding up of an unregistered company only if
it has “place of business” in India. An Indian Court may decline to exercise jurisdiction over a foreign company if it has no assets
situated in India.
The winding up of the company under the Indian Companies Act is entirely governed by the Indian Law. The Court has powers
by the way of winding up order or by any subsequent orders to direct that ‘all or any part of property, movable or immovable,
belonging to the company or held by trustees on its behalf shall vest in the official liquidator by his official name and thereupon
the property or part thereof specified in the order shall vest accordingly. [Section 588(1)]
Nationality
The nationality of a corporation is seldom relevant in cases of conflict of laws. A company is regarded as the national of the
country in which it is incorporated (Rajah of Vizianagram v. Official Receiver and Liquidator [AIR 1962 SC 500]) Under the law
of the most of the Continental countries a corporation is national of the country where its centre of management exists.
Presence
English Law
It is well established rule of private International Law that whatever suit is filed against a defendant, process should be served on
him. Ordinarily a person can be served with the process when he is within the jurisdiction of the Court. For the purpose of service
of process mere presence of the defendant within the jurisdiction of the court is enough. Thus, it is in respect of service of process
that the location of the place of presence of the company is required.
In this respect the rules of Indian and English private International Laws are the same. It is a well established rule of common law
that exercise of jurisdiction depends upon service and if the defendant is ‘found’ within the jurisdiction he can be served with the
process. This equally applies to companies.
In Dunlop Pneumatic Co. v. Action Gesellschaft Motor etc. co [(1902) 1 K.B. 342], a stand was occupied by a foreign motor car
company at a nine day cycle show. It was held that the company was present in England. It should be noted that it is immaterial
whether the cause of action arose in England or elsewhere. The Companies Act 1948, section 407 makes it obligatory for foreign
corporation to file with the Registrar of Companies the name and address of a person authorised to accept service of process on
behalf of the company.
Indian Law
Order 29, Civil Procedure Code deals with suits by and against the companies. Rule 2 of the order lays down the method of
effecting service on corporations. In Hyderabad Municipality v. Hakumal [1928 Sind 11], it was held that in Rule 2(b) of Order 29,
the place where the corporation carries on business is the principal place of business of the company. The mode of service and on
whom it may be effected has now been laid down in the Companies Act 1956, in the same term as it exists under the English
Companies Act.
Sec.592 provides that the foreign corporation which establish a place of business in India shall, within thirty days of the
establishment of the place of business, deliver to the registrar of companies for registration , inter alia, the name , the address the
names and the addresses of one or more persons resident in India , authorised to accept on behalf of the company service of
process and any notices or other documents required to be served on the company’, and the full address of the office of the
company in India which is to be deemed its principal place of business [Sec. 592 (1)(e)]
Insolvency
Adjudication of a person as insolvent or bankrupt confers a status of bankruptcy or insolvency on him and accords him protection
from his creditors. When a person is unable to pay his debts, proceedings may be filed in a court of law by that person himself or
by his creditor for his adjudication as insolvent or bankrupt. Once a person is adjudicated as insolvent, a disabling status is
conferred on him. He cannot henceforth deal with his property till he is discharged by the court. From the date of his adjudication
as an insolvent and till his discharge, his entire property vests in the administrator. In private International law, insolvency is
referred to as a general or universal assignment of property, since insolvency implies disposal of entire assets of the insolvent
among his creditors. The concept of bankrupy is recognised practically all over the world.
English Law
The modern English Law of bankruptcy is statutory law and is contained in the Bankruptcy Act 1914-1926. Under the Bankruptcy
Act a petition for bankruptcy may be filed by the debtor himself or by any of his creditors. When the former files a petition, the
jurisdiction of the court is much wider. When a creditor files a petition for adjudicating the debtor as insolvent, the jurisdictional
rules are somewhat narrow. An English court can exercise jurisdiction when the following two preliminary conditions are
satisfied:
a. There must be an act of bankruptcy
b. There must be a debtor

Before the Bankruptcy Act 1914 the English Court gave a narrow definition to the term ‘debtor’. Under the Bankruptcy Act 1914,
the term debtor has been widened to include any person, whether British subject or not , whether domiciled in England or not , who
at the time of the commission of any of the aforesaid acts of bankruptcy : [Section 1(2)]
a. Was personally present in England
b. Ordinarily resided or had a place of residence in England, or
c. Was carrying on business in England, personally or by means of an agent or manager or
d. Was member of a firm or partnership which carried on business in English

The jurisdiction of the court is wider when the debtor files a petition for his adjudication as bankrupt than the jurisdiction of the
court when the creditor files a petition. Thus any person who is a debtor within the meaning of the term may file a petition for
adjudication of himself as bankrupt. The filing of petition for adjudication of himself as bankrupt is by itself an act of bankruptcy .
No creditor can file a petition for the adjudication of his debtor as bankrupt unless the debtor either is domiciled in England and
comes under the definition of debtor or has within a year before the date of the presentation of the petition , fulfilled one or the
other conditions necessary for constituting him a debtor.
Choice of Law
Whenever English Court exercises jurisdiction in a petition for adjudication of a person as bankrupt, it applies English Law
concerning the administration of assets of the bankrupt, such as distribution of assets among the creditors, the priorities among the
creditors inter se, the rules of double proof in case of partnerships, set-off and every matter of procedure including limitation18.
The result of an English adjudication of bankruptcy of a debtor is that all his property vest in the administrator known as trustee in
bankruptcy. All property of a bankrupt situated in England vest in the trustee; but the vesting of properties situated abroad, the
position is not simple. Whether or not the property situated abroad would pass to the English trustee in bankruptcy, would
ultimately depend upon the view the local law takes of the English bankruptcy order, despite the fact that in theory the property
situated there also vests in the English trustee.
Foreign Bankruptcy
The rule of English law is that foreign adjudication in bankruptcy does not in any way hamper the jurisdiction of English Court to
adjudicate a debtor bankrupt provided it has jurisdiction to entertain the petition. There is a school of thought which propagates the
theory of unity of bankruptcy It postulates that the adjudication of bankruptcy should be in one jurisdiction and adjudication by
that jurisdiction should be respected all over the world.
Norther Ireland and Scotland are not considered to be foreign countries in bankruptcy adjudication in as much as the title of trustee
in bankruptcy appointed in England, Scotland and Northern Ireland extend to all movables and immovables of the debtors
wherever situated in any one of these parts of Great Britain.
In re Anderson [(1911) 1 K.B. 896], a domiciled Englishman was declared insolvent by in proceedings to a New Zealand court in
proceedings to which he was a party. The debtor was entitled to a reversionary interest in some English money, but by some
oversight the reversionary interest was not disclosed in the New Zealand proceedings. Six years later the debtor was adjudged
bankrupt in English proceedings. The English Court held that the New Zealand trustee was entitled to the reversionary interest in
preference to the English trustee.
The Court observed “The adjudication in New Zealand being a valid adjudication according to the law of New Zealand, passed the
right to movable property of the bankrupt in any country to his official assignee in bankruptcy in New Zealand. If he had not been
a party to the adjudication, if it has been made against him in his absence, other considerations might very well have applied”.
Thus the trustee in bankruptcy appointed in a foreign adjudication is recognized in England. The English law , making a distinction
between movables and immovable, recognizes that debtors movables situated in England vest in the foreign trustees.
The English court recognizes foreign trustee’s right to sue in his own name to recover debts of the debtor situated in England,
provided that he has the right so to sue by the law of the country of his appointment (Macaulay v. Guarantee Trust Co. of New
York [(1927) 44 T.L.R 99]).
In solomons v. Ross [(1764)1HY BL. 131], it was held that if a creditor of the debtor attaches property of the debtor in England
after the commencement of foreign bankruptcy proceedings, the foreign trustee will be entitled to the attached property. This
decision has not been followed by the House of Lords Galbraith v. Grimshaw [(1910) A.C. 508], which held that the Scottish
trustee was not entitled to debtor’s debt situated in England which an English Judgment creditor was in process of garnishing at the
time of judgment-debtor’s adjudication as bankrupt in Scottish proceedings. It is interesting to note that the title of the trustee
would have prevailed over the judgment-creditor had the garnishee proceedings been commended in Scotland or had the
bankruptcy proceeding been commenced in England. But the house of Lords took the view that neither Scottish nor the English
doctrine of relating back applied.
The recognition of the title of the foreign trustee over English movables does not preclude the English court from adjudicating the
debtor once again a bankrupt in English proceedings, though English court would not ordinarily exercise jurisdiction in such a
case.
Indian Law
The Indian law of insolvency is contained in two statutes: the Presidency Town Insolvency Act, 1909 and the Provincial
Insolvency Act, 1920. The Indian Law is primarily based on English law. The former statute is applicable only in the towns of
Bombay Calcutta and Madras, while the latter applies to the rest of the country
The Indian statutes specifically lay down that an act of insolvency committed by an agent may constitute an act of insolvency of
the principal (Theophile v. Solicitor General [(1950)A.C. 186]). Obviously every act of the agent cannot be imputed to the
principal; it will depend upon the circumstances of each case for the exercise of the jurisdiction by the court there must be a debtor
who, under the Provincial Insolvency Act: [Sec. 11]
i. Ordinarily resides within the jurisdiction of the court, or
ii. Carries on business within the jurisdiction of the court, or
iii. Personally works for gain within the jurisdiction of the court, or
iv. Is, on being arrested or imprisoned, in custody within the jurisdiction of the court

Under the Provincial Insolvency Act, a petition for insolvency can be filed only in the District court, though the State Governments
have power to entrust jurisdiction to any court subordinate to be District court, Provided, of course, aforesaid two conditions of the
exercise of the jurisdiction are satisfied. The presidency Towns Insolvency Act confers jurisdiction on the High Courts of Calcutta,
Bombay and Madras. A single judge of the High Court is competent to hear the petition. Here also the aforesaid two conditions
for the assumption of jurisdiction should be satisfied.
Just as under the English law, so under the Indian law (both the statutes) the court’s jurisdiction is much wider when a debtor files
a petition for his adjudication as insolvent than when a creditor files such a petition, inasmuch as, in the former case, the filing of a
petition by itself amounts to an act of insolvency.
However, before a debtor is allowed to the petition the following conditions should also be satisfied:
a. His debts should amount to five hundred rupees, or
b. He should under arrest or imprisonment in execution of the decree of any court for the payment of money, or
c. An order of attachment in execution of such decree should have been made, and should be subsisting against his
property.

Effect of Indian Insolvency

In regards to the vesting of the property in the administration in insolvency, there is a slight difference between the provisions of
the presidency. Towns Insolvency Act and the Provincial Insolvency Act. Under the former On the making of order of
adjudication, the property of the insolvent whenever situate shall vest in the official assignee and shall become divisible among the
creditors and thereafter except as directed by this Act, no creditor to whom the insolvent is during the pendency of the insolvency
proceedings, have any remedy against the property of the insolvent in respect of the debt or shall commence any suit or other legal
proceedings except with leave of the court and so much terms as the court may impose. Under the Provincial Insolvency Act the
property of the insolvent vests in the court or in the receiver.
An order of adjudication of insolvency relates back and takes effect from the date of the presentation of the petition.[T.N.S. Firm
v. Mohammed Husain [65 M.L.J.458] It is obvious that under both the statutes all the properties of insolvent, whenever situated, in
India or abroad, vest in the original assignee or the receiver with effect from the date of the presentation of the petition. So far as
the question relates to the assets situated in India there is no difficulty : all properties, movables as well as immovables vest in the
official assignee (under the Provincial Insolvency Act, as we have seen, the properties vest in the court or the receiver; but, for the
sake of convenience, we would use in these pages only one word, the official assignee). But in respect of assets situated abroad, the
position is the same as under English law: movables situated abroad vest in the official assignee, while the immovables properties
vest in him only ideally.
In B.N.Lang v. Jasvantlal [AIR 1926 Bom. 271], the Bombay High Court said that all the properties of the insolvent, wherever
situated, vest in the official assignee, though it is a different matter whether he will be able to take possession of them, particularly
when properties are situated in a foreign country. In this case in execution of a decree passed by a foreign court one of the creditors
has got attached certain properties of the insolvent by the order of the court. The official assignee applied for the vacation of the
attachment order on the plea that this property should be set free so that it is also available for rateable distribution among all
creditors. The court accepted the prayer and released the property from attachment. It was observed that all the properties of the
insolvent vest in the official assignee and the court should not bother itself as to how the official assignee would be able to get
possession of the foreign situated assets.
Foreign Discharge in Bankruptcy
Apart from the orders of discharge passed in the Scottish and Northern Irish bankruptcy proceedings which are recognised and
given effect to in England, the position of foreign orders of discharge in bankruptcy is different. The doctrine adhered to is that a
foreign discharge in bankruptcy is neither an order nor a judgement and therefore the question of according it recognition as an
order or judgment of the court does not arise. The English courts take the view that if the discharge is valid by the proper law it
will be ineffective in England.
It is obvious that a foreign discharge in bankruptcy cannot be given a greater extra-territorial effect than it has in the country where
it has been pronounced. Similarly, a foreign discharge will not be effective in England unless it amounts to extinction of debt in the
foreign country; if the foreign discharge merely bars the remedy and does not extinguish it, and then it will not be a discharge
effective in England.
Creditors’ Petition
Whenever a creditor wants to file a petition in addition to the aforesaid two conditions for the assumption of the jurisdiction, the
following requirements should also be satisfied:
i. The debt owning by the debtor to the creditor, or if two or more creditors join in the petition, the aggregate amount of
debts owning to such creditors, amount to five hundred rupees, and
ii. The debt is liquidated some payable either immediately or at some certain future time, and
iii. The act of insolvency on which the petition is grounded has occurred within three months before the presentation of
the petition.19

Discharge in Insolvency
The direct purpose of the order of discharge is to enable the insolvent to once again start his normal activities free from the
liability to pay his pre-insolvency debts. Section 44(2) of the Provincial Insolvency Act, lays down, “…an order of discharge shall
release the insolvent from all debts provable under this act.” As far as the effect of the order of the Indian insolvency court is
concerned, it amounts to the discharge of all debts and outstanding liabilities of the debtor provable in insolvency. This order
would be effective throughout India.20

List of references
Sr.No Details
1 V. C. Govindaraja - The Conflict of Law in India
2 Paras Diwan - Private International Law
3 Setalvad - Conflict of Laws.
4 S.K.Kapoor - Private International Law

1. Mulla, “The Indian Contract Act” 15th Edition (2015) Lexis Nexis publication
2. Cheshire’s, “Private International Law”, ed.8th, (1970) Oxford University Press
3. Dr. S.R. Myneni : Private International Law
4. Dr. S.R. Myneni : Private International Law
5. Dr. S.R. Myneni : Private International Law
6. Dr. S.R. Myneni : Private International Law
7. Dr. S.R. Myneni : Private International Law
8. Dr. S.R. Myneni : Private International Law
9. Dicey and Morris , “The Conflict of Laws” 8th Edition, Sweet & Maxwell publication
 10. www.taxdose.com
11. Dr. S.R.Myneni, “Private International Law”, 1st Edition (2013) , Asia Law House
12. Sec.134 Negotiable Instruments Act.
13. Vivek Sood, “Cyber Law Simplified” (2001), Tata Mcgraw Hill Publishing Co. Ltd., New Delhi.
14. Adrian Briggs, “The Conflict of Laws”, Claredon, Oxford, 2002.
15. S.K. Verma and Raman Mittal, “Legal Dimensions of Cyber Space”, (2004), Indian Law Institute, New Delhi
16. Rahul Matthan, “The Relating to Computers and the Internet” (ed. 2000), Buttersworth, India
17. Paras Diwan and Peeyushi Diwan, “Private International Law” 4 th Edition (1998) Deep and Deep publication
18. Paras Diwan, “ Private International Law” , 4th Edition (1998) , Deep & Deep Publication
19. Dr. S.R. Myneni : Private International Law
20. Dr. S.R. Myneni : Private International Law

Unit V - Enforcement

Course Outline of Unit V: Enforcement

This Unit contains discussion on following topics :
Enforcement of Foreign Judgments and Decrees - Enforcement of Foreign Arbitral Awards Evidence and Procedure - Stay of
Proceeding - Proof of Foreign Laws

Disclaimer: This subject content as provided under AIR Online Education Support Suite is only Study (Reference) Material for
supplementing your Academic Classroom (Text Book) Learning. These are not Text Books on the Law Subjects.

Recognition and Enforcement of Foreign Judgments

The English courts have , from early times, accorded recognition to foreign judgments, though direct effect could not be given to
them. Today, most of the countries of the Commonwealth , including India and the United States give recognition to foreign
judgments1.
Recognition of Foreign Judgments – Theories
On the recognition of foreign judgments, the following theories have been propounded:

i. Theory of comity

The theory of comity is the oldest theory. According to Black’s Law Dictionary, the term ‘comity’ means, reciprocity, courtesy,
compliance, respect, a willingness to grant a privilege, not as a matter of right, but out of defence and goodwill.
‘Comity’ means general reciprocity. Under this rule a Court or State yields as a favour what cannot be claimed as a right. The
Court, out of favour and good will extend to foreign laws an effect which they would not otherwise have (Gever v. Aguilar [(1798)
7 Term Rep. 681]).
Comity is not a rule of law, but one of practice, convenience and expediency, It is something more than mere courtesy which
implies only defence to the opinion of others, since it has a substantial value in securing uniformity of decision and discouraging
repeated litigation of same question. But its obligation is not imperative. Comity persuades but it does not command. It declares,
not how a case shall be decided, but how it may with propriety be decided.

ii. The obligation theory

The theory of comity has been supplanted by a far more defensible principle that has been called “the doctrine of obligation”. This
doctrine, which was laid down in 1842 is that, where a foreign court of competent jurisdiction has adjudicated a certain some to be
due from one person to another, the liability to pay that sum becomes a legal obligation that may be enforced in this country by an
action of debt (Schibsby v. Westenholz [(1870) L.R 6 O.B 155]).
The criticism against the theory of obligation is that it brings a fictitious contract into play and cannot justify the recognition of
divorce decrees and other judgments in rem.
The theory obligation has come in for criticism in that it fails to reveal the policy considerations underlying the rules on
recognition and enforcement. It is more concerned with explaining in theoretical terms which foreign judgments should be
recognized and enforced.

iii. Theory of Judicial reason or ideas of social value

H.E. reads has propounded the view that foreign judgments are recognized on “ the ground of judicial reason or ideas of social
value or both”. Theoretically this view appears to be sound, as every judgment is recognized in the interest of justice.

iv. The theory of harmony between judgment and law

Von Bar has propounded the doctrine of harmony between judgment and law. He says that a judgment in a lex specialis, a law
regulating one single case. He maintains, in order to maintain harmony between conflict rules and respect for foreign judgments,
the courts of a given country ‘should in principle, and as far as possible, decide on such actions as are to be decided under the
Municipal Law of the Country. The theory is being criticized that it over-simplify the matter and is unsatisfactory.

v. The theory of harmony between foreign judgments and conflict Laws

Pillet says that courts recognize a foreign judgment only if the judgment has been rendered in accordance with its rules of conflict
of laws. The greatest objection to this theory is that it reduces the number of enforceable judgments below a reasonable limit.

vi. Doctrine of acquired rights

This theory holds the view that since a foreign judgment implies as acquisition of a right, it should be enforced. As soon as
plaintiff appears in a court on the basis of foreign judgment, the court presumes that he has acquired a right, though defendant is
free to rebut that presumption by establishing that for one reason or another that judgment can not be enforced. What the defendant
does is not to establish that the right has not been acquired under the judgment, but he asserts that, for some reason, the judgment
cannot be enforced.
Basis of Recognition of Foreign Judgments under English Law
The English courts have been enforcing foreign judgments from the 17th century onward. The early English decisions have
favored the theory of comity. Later on English courts advocated the theory of obligation2. But, the obligatory theory fails in those
cases where the question is not of enforcement of foreign judgments but their recognition. Hence, a wider basis of recognition and
enforcement of foreign judgments was propounded by Lord Brougham.
In the Modern English Law, foreign judgments have never been directly executable at common law. English Law has all along
required that the judgment creditor should bring an action on foreign judgment. Foreign judgments are directly executable only
under certain statute. This also has been a remarkable development in the English private International law that the domestic
doctrine of merger of cause of action in the judgement is not applied to foreign judgments (Hall v. Odber [(1809) 11 East 118]).
This means that the plaintiff who had obtained a judgement from a foreign court has the option either to bring an action on the
foreign judgement or to sue on the original cause of action.
The condition under which foreign judgments may be enforced are as follows:
The judgment must have been given by a court of competent jurisdiction
Both English and Indian Law provide that no foreign judgment can be enforced or recognized which has been pronounced by a
court having no jurisdiction in the cause. The competency of the foreign court is determined by the rules of the forum or by the
law of the country where the foreign court is situated.
The essential for the effectiveness of a foreign judgment in England is that the adjudicating court should have had jurisdiction in
the international sense over the defendant. A foreign court may give a judgment which, according to the system of law under
which it sits is conclusively binding upon the defendant, but unless the circumstances are such as in the eye of English Law justify
the court in having assumed such jurisdiction, the judgment does not create a cause of action that is actionable in England.
Judgments of foreign courts on domestic Status
English Courts concede to the courts of a party’s domicile almost exclusive jurisdiction over all matters of purely domestic status,
such as marriage, diverse nullity of voidable marriages, legitimacy and legitimation.
In Phillips v. Batho [(1913) 3KB 25], an Indian Court granted a decree of divorce between two persons domiciled in India, and at
the same time awarded damages against the co-respondent who had left India before proceedings were instituted.
Final and Conclusive Judgment
English Courts will not entertain an action on a foreign judgment unless that judgment is final and conclusive in the court which
pronounced it. A judgment is not regarded as final and conclusive unless the matter is completely settled and disposed off, so far
as the court pronouncing the judgment is concerned. If any further order is required for the enforcement of the judgment, and on
application for such an order the original judgment is liable to be varied it does not satisfy this test3.
The requirement of the final and conclusive nature of a foreign judgment has particular reference to cases of the award of alimony
or maintenance by foreign courts, since such amounts are usually capable of variation. Where such is the case in the English court
will not enforce the foreign judgment. If, however, the foreign court has no power to vary installments of maintenance or alimony
already accrued due, that part of a judgment relating to arrears may be served from the remainder, and made the subject of an
English Action.
The judgment must be for a definite sum
The English Courts will not enforce a foreign judgment which is purely in personam unless it is for a fixed and definite sum of
money expressed or convertible into English currency.
Judgment Impeachable on Merit
In English private international law that a foreign judgment cannot be impeached on merits or cannot be re-opened on merit to its
logical conclusion by laying down that even when the foreign judgment is based on the mistaken notion of English law or that it is
based on mistaken notion of its own law (Pemberton v. Huges [(1899) 1 Ch. 781]).
English law takes the view that if the foreign court is of competent jurisdiction in the international sense, then that is enough
competence in any other sense, is not regarded as material. This means that an action will be on a foreign judgment even though it
is judgment delivered by a court which according to its own internal law, has no jurisdiction (Pemberton v. Huges [(1899) 1 Ch.
781]).
Direct execution of foreign decrees
Ordinarily foreign judgments cannot be executed directly in England. If a decree-holder wants to execute a foreign decree he has,
to file a suit on judgement. In modern law most of the countries allow direct execution of foreign decrees if there are reciprocal
agreements between the countries for their direct execution. However, in certain cases direct execution of foreign judgments is
possible, under certain statutes. Under the following statutes, the foreign judgments can be directly executed.

i. Judgment Extension Act, 1868

From the point of view of Private International Law, Scotland and Ireland are considered to be foreign countries, and prior to 1868,
a judgment of a court of Scotland or Ireland could be enforced by a suit on such judgment. By the Judgment Extension Act, 1868
the judgment rendered by the superior courts of England. Ireland and Scotland have been made directly enforceable in any part of
the United Kingdom. The Act applies to the judgments of superior courts only.Under the Judgment Extension Act, 1868 only the
judgments which are for ‘any debt, damage or Costs’ are made enforceable. The Act provides that courts in Scotland, Northern
Ireland and England keep a register in which a certificate affirming that a judgement has been obtained in either of the two other
countries may be entered. By registration a judgement is ‘extended’ in a country where its execution is sought and the effect of
registration is that decree is treated as if it is decree of the registering court. This implies that judgments so registered cannot be
impeached on merit or on any other ground. A certificate cannot be registered more than 12 months after the date of the judgement
without obtaining the leave of the court.

ii. The Administration of Justice Act, 1920

This Act enables judgments to be enforced in the United Kingdom by registration in the superior courts of England, Northern
Ireland or Scotland if pronounced by the superior Court of any part of the commonwealth i.e., British dominions, protectorates and
mandated territories.
A person who had obtained the judgment may within 12 months apply for the said registration, whereupon the court may, if in all
the circumstances of the case they think it just and convenient that the judgment should be enforced in the U.K. order the
judgment to be registered. Thus registration lies wholly within the discretion of the court.
A Judgment cannot be registered unless it is one under which a sum of money is made payable. The registration of judgment
would not be allowed, if
a. The original court acted without jurisdiction,
b. The judgment debtor did not voluntarily submit to the jurisdiction of the adjudicating court, unless he was carrying on
business or was ordinarily resident within that jurisdiction,
c. The judgment debt was not served and did not appear in the original proceedings,
d. The judgment was obtained by fraud,
e. An appeal is pending, or
f. The original cause of action was one which, for reasons of public policy or for some other similar reason, could not
have been entertained in England.

Registration is effective only in respect of execution. The Act does not operate automatically, but only extends to the various parts
of the British Empire when brought into operation on a reciprocal basis by order in Council.

iii. Foreign Judgment (Reciprocal Enforcement) Act, 1933

This Act applies the principle of registration of foreign judgments in the English courts on a basis of reciprocal treatment to the
courts of Commonwealth Country i.e., British dominions, Mandated territories and Protectorates and to those of foreign countries
in the international sense. Like the Administration of justice Act, 1920, it can only come into operation by Order in Council in
respect of any particular country but convention have already been made in respect of France, Belgium and India.
The registration of a foreign judgment may also be set aside if the court is satisfied that the matter adjudicated upon had already
been the subject of a final and conclusive judgment by a court of competent jurisdiction in the matter. The Act specifies the
circumstances in which foreign court shall be deemed to have jurisdiction.
No action can be filed on a judgment which is registrable under the Act, The effect of registration is that the judgment registered
has the same force and effect as if it was the judgment of the registering court, but only in respect of its execution.
Indian Law relating to direct execution of Foreign Judgments
In Order to be a foreign State for the purpose of holding the judgments pronounced by its courts as foreign judgments absolute
independence of that State is not necessary. The only thing that is needed to hold it a foreign State is that it should have an
independent civil, criminal and fiscal jurisdiction. If it had that, it could be considered to be a foreign State notwithstanding the
fact that it was under the protection, suzerainty or paramountcy of another superior power.
As per Section 2(5) and 2(6) of the Code of Civil Procedure Act, 1908 ‘foreign judgment’ means the judgment of a foreign court’;
which means’ a court situated outside India and not established or continued by the authority of the Central Government.
Execution of decrees passed by Civil Courts in places to which this Code does not extend
Any decree passed by any Civil Court established in any part of India to which the provisions of this Code do not extend, or by any
Court established or continued by the authority of the Central Government outside India, may, if it cannot be executed within the
jurisdiction of the Court by which it was passed, be executed in the manner herein provided within the jurisdiction of any Court in
the territories to which this Code extends.
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 have
been passed by Courts in that State.

Defences that can be raised to an action for the enforcement of a foreign

judgment at common law
A. Disregard of English ideas of Natural Justice
Where a foreign judgment has been given in a manner contrary to English ideas of natural justice, the English Courts will not
enforce it. Contrary to natural justice, when applied to foreign judgments, relates to the alleged irregularities in procedure adopted
by the adjudicating court and has nothing to do with the merits of the case.
In Crawley v Isaacs [(1867) 16 LT 529 at 531], it was held that, “ if the proceeding be in accordance with the practice of the
foreign court, but that practice is not in accordance with natural justice, this court will not allow it to be concluded by them. The
courts are vigilant to see that the defendant had not been deprived of an opportunity to present his side of the case. The maxin
‘audi alterem partem’ i.e. no man should be condemned the unheard is considered to be of universal, not merely of domestic
application.4
It would always be violation of natural justice:

If the defendant was not served with any notice of the proceedings

If the defendant was not given adequate opportunity to present his case; or

If the judge was personally interested in the subject- matter of the suit.

i. When the defence is not served with any notice

Where a judgment is pronounced against an absent defendant who has not been served with any notice of the proceedings, that
judgment is opposed to natural justice.
Sec.2 (9) (c) of the Administration of Justice Act, 1920 provides, no foreign judgment may be registered under the Act, if the
defendant was not duly served with the process of the court and did not appear. Section 4 (1)(a)(iii) of the foreign judgments
(Reciprocal Enforcement) Act, 1933 provides that the registration of a foreign judgment under the Act will be set aside ‘if the
judgment-debtor, being the defendant in the proceedings, did not receive notice thereof in sufficient time to enable him to defend
and he did not appear.
In Rudd v Rudd [(1924) P72], the English Court disregarded a decree of divorce obtained by a husband in Washington State,
where he had acquired a domicile of choice leaving that no adequate notice of the proceeding has been served on the wife.
According to section 13(d) of the Code of Civil Procedure, 1908, 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 where the proceeding in which the judgment was obtained are opposed to natural justice.

ii. No adequate opportunity to represent was given

This principle is applied in the English case Jacobson v Frachon [(1928) 138 LT 386], the Court of Appeal held that French
Judgment cannot be impeached on the ground as the plaintiffs had not been prevented from presenting the case before the French
Court even though the expert did not hear their evidence. By the French Law, it appeared the French Court was not bound by the
report of the expert and could reject, if found it accurate. In India, Section 13(d) of the Code of Civil Procedure, 1908 provides – A
foreign judgment shall not be conclusive which the proceedings in which the judgment was obtained are opposed to natural justice.
In Veenakalia v Dr. Jatindranath Kalia [AIR 1996 Del. 54], the husband filed a divorce petition in a foreign court. Since wife had
no means to contest the case in a foreign court, she could not do so. An exparte decree of divorce was passed in favour of the
husband. It was held that the foreign decree was nullity as it was violative of the rule of natural justice.

iii. If the judge was interested in the subject-matter of the suit

In domestic law, if the judge is himself personally interested in the subject matter of the suit then the judgment is void being
contrary to the principle of natural justice. This principle when applied to the foreign judgments creates practical difficulty.
Cheshire says that is merely seems to confuse that which was reasonably clear in a way so as to create undesirable uncertainty in
the field of recognition.

B. Judgment Vitiated by fraud

In English domestic law is that a judgment obtained by fraud may be impeached. A party is free to bring an independent action to
set aside a judgment obtained by fraud. Fraud is an extrinsic collateral act, which vitiated most solemn proceedings of the court of
justice.
An unsuccessful party cannot bring an action to get a judgment set aside on the ground that the court made a mistake of fact or
law, but it can bring an independent action on the ground that in passing the judgment the court was under fraud.
A foreign judgment can also be equally impeached on the ground of fraud. Just as it is a good ground of appeal against an English
judgment that has been obtained by fraud, so it is a good defence to an English action for the enforcement of a foreign judgment
that the foreign judgment itself was obtained by fraud.
In Vadala v Lawes [(1890) 25 Q B D 310], the principle was stated in these words; “if the fraud upon the foreign court consists in
the fact that the plaintiff has induced that court by fraud to come to a wrong conclusion, you can reopen the whole case even
though you will have in this court to go into the very facts which were investigated, and which were in issue in the foreign court”.
In Magan Bhai v Maniben [1985 Guj 187], the court refused to recognise a Mexican decree of divorce which was obtained by
fraudulent misrepresentation of his domicile and residence by the husband.

C. Disregard of English Public Policy

In English and Indian Private International Law, the established rule is that a foreign law which is against the public policy will not
be enforced or recognised. Public Policy is used in a general sense to include English ideas of morality, domestic and commercial,
and principle of English law that foreign judgment of a penal or revenue nature will not be enforced.5
The concept that a foreign judgment which is contrary to public policy cannot be enforced has been recognized statutorily in
England. However, section 13 of Code of Civil Procedure 1908, does not recognize this as a separate head, but it seem to be
covered under clause (f) in section 13.
In Indian law, section 13 of the Code of Civil Procedure, 1908 provides that Foreign Judgment shall not be conclusive where-
a. It has not been pronounced by a court of competent jurisdiction;
b. It has not been given on the merits of the case;
c. It appears on the face of the proceedings to be founded as a incorrect view of international law or a refusal to recognise
the law of India in cases in which such law is applicable;
d. The proceedings in which the judgment was obtained are opposed to natural justice;
e. It has been obtained by fraud;
f. It sustains a claim founded on a breach of any law in force in India.

Enforcement Under The Administration Of Justice Act 1920 And The

Foreign Judgments (Reciprocal Enforcement) Act 1933.
The provisions of the Administration of Justice Act 1920 whereby judgments given in Commonwealth countries may be registered
and enforced in England apply equally to arbitral awards. The foreign judgments (Reciprocal Enforcement) Act 1933 now also
extends to foreign arbitral awards. However, a foreign arbitral award, which is registrable under the act, unlike other judgment,
does not have to be enforced under the Act. The claimant, if he so chooses, can, instead, seek enforcement of the arbitration award
at common law or by recourse to section 66 of the Arbitration Act,1996.6

Enforcement under the Arbitration (International Investment Disputes)

Act, 1996
The Arbitration (International Investment Disputes) Act, 1996 implements a convention made at Washington in 1965 which
established an International Centre for the settlement of investment disputes between Contracting States and the nationals of other
Contracting States. Subject to the written consent of the parties, the Centre’s arbitration tribunal has jurisdiction to settle any legal
dispute arising out of such an investment. An arbitral award made by the Centre’s tribunal, if registered in the High Court, has, as
respects the pecuniary obligations which it imposes, the same force and effect as if it had been a judgment of the High Court. There
is discretion to stay English proceedings in breach of an agreement to submit to the centre’s arbitration.

Stays of English proceedings and restraining foreign proceedings

The power to stay English proceedings is derived from the court’s inherent jurisdiction, which is preserved by statute, and from
statutory provision on arbitration. The power is exercised in three situations:
a. Where the doctrine of forum non conveniens applies
b. Where there is a foreign choice of jurisdiction clause
c. Where there is an agreement on arbitration

Each of these three situations will be examined as follows:

Forum Non Conveniens
i. Development of the doctrine of forum non conveniens in English law
The discretionary power to allow service of a claim form out of the jurisdiction is exercised on the basis of forum conveniens.
There is also a discretion to stay actions on the basis of forum conveniens. There is also a discretion to stay actions on the basis of
forum non conveniens in certain specific situations. These are as follows: cases involving the administration of estates and trusts;
and cases where there are concurrent proceedings in respect of a marriage, for instance for divorce, taking place both in England
and outside the jurisdiction7
Whilst there has been such a power in Scotland and the US for a number of years, it is only recently that a general doctrine of
forum non conveniens has been accepted in England. Final acceptance by the House of lords hat a doctrine of forum non
conveniens is applied when exercising the discretion to stay English proceedings came in The Abidin Daver [1984] AC 398]
(Lords Edmund-Davis, Keith and Templeman concurred with Lord Diplock). Lord Diplock explained that “judicial chauvinism
has been replaced by judicial comity” to the extent that it was now time to acknowledge that the English discretion to stay was
indistinguishable from the Scottish doctrine of forum non conveniens. This view has been endorsed by the House of Lords in the
leading case on stays of action, [Spiliada Maritime Corp. V Cansulex Ltd [1987] AC 460].

ii. The principle on which the discretion to stay is exercised

The law was exhaustively considered and restated by the House of Lords in Spiliada Maritime Corp. v Cansulex Ltd, where Lord
Goff, giving the unanimous judgment of the Law Lords, set out a number of principles on which the discretion should be
exercised.
The basic principle
The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there
is some other available forum, having jurisdiction, which is the appropriate forum for trial of the action, ie in which the case may
be tried more suitably for the interest of all the aprties and the ends of justice.
This is the most important of the principles and sums up the whole basis of the forum non conveniens discretion.
The two stage inquiry

The first stage: Another available forum which is clearly more appropriate
The burden of proof is on the defendant to show that there is another available forum which is clearly or distinctly more
appropriate than the English forum.
The other available forum must be clearly or distinctly more appropriate than the English forum. It is not enough just to show that
England is not the natural or appropriate forum for trial. Neither is it enough to establish a mere balance or convenience in favour
of the foreign forum.
In cases where there is no clearly more appropriate forum abroad, ie. Where either there is no country which is the natural forum
or England is the natural forum, the courts will ordinarily refuse a stay of proceedings.

The second stage: the requirement of justice

Lord Goff has said that: if there is some other available forum which prima facie is clearly more appropriate for the trial of the
action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should
nevertheless not be granted.

iii. Multiplicity of proceedings

If litigation involving the same parties and the same issues is continuing simultaneously in two different countries, this is referred
to as case of lis alibi pendens. In such cases the issue facing the English court is not simply that of deciding to which of the
alternative for a claimant should have to go to bring his action. Instead, the choice is between, on the one hand, trial in England
plus trial abroad and, on the other hand, trial abroad in case if stay is granted.
The weight to be attached to the factor of multiplicity of proceedings will depend on the circumstances of the case. It is not a
decisive factor in the sense of automatically making a foreign forum clearly more appropriate and shifting the burden of proof to
the claimant to justify trial in England. It does not matter, in principle, whether the action was commenced first in England or
abroad; this is merely an accident of timing.8
Foreign jurisdiction clauses
If parties have agreed on trial in a European Community or EFTA State, article 17 of the Brussels Convention or Lugano
Convention may be applicable, according to which the European Community or EFTA Contracting State on which jurisdiction has
been conferred by the parties is given exclusive jurisdiction. What we are concerned with here, however, are cases where Article
17 is not applicable, for example where the parties have agreed on trial in New York.

i. The exercise of jurisdiction to stay

An English court will be most reluctant to permit service out of the jurisdiction in the face of an argument by the parties to submit
their disputes to the exclusive jurisdiction of a foreign court. In the situation where the English court has undoubted jurisdiction
over actions properly instituted here, there is an inherent discretion in the court to disregard an express foreign jurisdiction clause.

ii. Reliance on, escape from, exclusive jurisdiction clauses

The impact of a foreign jurisdiction clause on service out of the jurisdiction under order 11 of the Rules of the Supreme Court and
on stays of action in such that a defendant who does not wish to face trial in England will seek to rely on such a clause wherever
possible, whereas a claimant who wishes to bring his action in England will seek to escape from such a clause.
Arbitration agreements
Section 9 of the Arbitration Act, 1996 substantially gives effect to Article II of the New York Convention on the Recognition and
Enforcement of Arbitral Awards (1958). It applies to all written arbitration agreements, including “domestic arbitration
agreements” Section 9 applies even if the seat of the arbitration is outside England and Wales or Northern Ireland or no seat has
been designated or determined. Section 9 will doubtless also apply regardless of whether the arbitration agreement is governed by
English or foreign law.
The question whether arbitration agreement is null and void is a matter for the law governing the arbitration agreement. The same
law governs the question whether a contract contains an arbitration clause. [Marc Rich & Co. AG v Societa Italiana Impianti PA,
the Atlantic Emperor[1989] 1 Lloyd’s Rep. 548]
The question whether the arbitration agreement is incapable of being performed relates not to whether one of the parties can
satisfy any award that may be made but rather to whether the agreement can be performed up to the stage of an award being
made.[The Rena K [1979]1 QB 377]

Foreign Arbitral Awards

Introduction
A foreign arbitral award is on a similar footing to a foreign judgment in that it may be enforced in England in a variety of ways. An
action may be brought at common law to recover the sum awarded. Statutory provision is also made for the enforcement of
foreign arbitral awards9.
It has been held that an action to enforce an arbitration award is an independent cause of action. Accordingly, time runs, not from
the date of the original breach of contract which had been the subject of the arbitration, but from the date of the failure to honour
the arbitration award.
Enforcement at Common Law
The basic elements for the successful enforcement of a foreign arbitration award in England are that the parties submitted to
arbitration, that the arbitration was conducted in accordance with the submission and that the award is both final and valid by the
law of the country in which it was made (Norske Atlas Insurance Co. Ltd v. London General Insurance Co. Ltd [(1927) 43 TLR
541]).
There must be a valid submission to arbitration; the validity of such agreement is determined by the proper law of the arbitration
agreement. This law will also determine whether the arbitration agreement has been rendered void by subsequent illegality. The
proper law of the arbitration agreement is usually the same as the law governing the contract as a whole. The parties can choose
the law governing the contract (or indeed the arbitration itself); in the absence of an express choice there is a strong inference that
the contract (and thus the arbitration agreement) is governed by the law of the place where the arbitration is to take place.
The actual arbitration proceedings, in the absence of an express choice of the law to govern the arbitration proceedings, will be
governed by the law of the place of arbitration. That law will determine whether the award is valid, though whether the arbitrator
has jurisdiction is a matter for the arbitration agreement and its proper law. The award, to be enforceable in England, must, like a
foreign judgment, be final and conclusive. (Dalmia Dairy Industries Ltd v. National Bank of Pakistan [(1978) 2 Lloyd’s 223])
However, the fact that the foreign award is not enforceable in the place where it was made until it has been confirmed by a court
probably does not prevent its enforcement in England, provided the law of the place of arbitration regarded the award as final
(Dalmia Dairy Industries Ltd v. National Bank of Pakistan [(1978) 2 Lloyd’s 223]).
A foreign arbitral award which does not fall within the various statutory provisions for recognition and enforcement based on
international conventions may be enforced either by an action on the award at common law, or by recourse to section 66 of the
Arbitration Act 1996, which provides that, with leave of the court, an award may be enforced in the same manner as a judgment or
order of the court to the same effect. This discretionary procedure is not restricted to domestic English awards but is available for
the enforcement of foreign awards, though the award will have to satisfy the other requirement for enforcement in the 1996 Act.
Leave to enforce an award will not be given where the tribunal lacked substantive jurisdiction to make the award.
Where enforcement of a foreign arbitral award is in issue, the discretion is likely to be exercised with considerably more caution.
Enforcement under the Arbitration Act 1950
Provision is made for the enforcement of certain foreign arbitral awards by Part II of the Arbitration Act 1950, which Act
consolidates the Arbitration Acts 1889 to 1934.
Part II of the Arbitration Act 1950 applies to foreign arbitral awards made in pursuance of an arbitration agreement to which the
1923 Protocol applies and made between persons who are subject to the jurisdiction of different countries, both of which, by
reason of their reciprocal provisions, have been declared by Order in Council to be parties to the 1927 Convention. The award
must also have been made in such a country.
An award, however, is not to be enforceable unless it satisfies certain conditions. It must have
a. Been made in pursuance of an agreement for arbitration valid by the law by which it was governed;
b. Been made by the tribunal provided for in the agreement;
c. Been made in conformity with the procedural rules obtaining in the country where the arbitration was held;
 d. Become final in the country in which it was made;
e. Been in respect of a matter which may lawfully be referred to arbitration under English law;

and its enforcement must not be contrary to the public policy or the law of England (Masinimport v. Scottish Mechanical Light
Industries Ltd [(1976) SLT 245]).
An award is not deemed final it proceedings for testing its validity are pending in the country in which it was made. Moreover, an
award is not to be enforceable if it does not deal with all the questions referred to the arbitrator or exceeds the scope of the
arbitration agreement, or if the party against whom enforcement is sought was not given sufficient notice of the arbitration
proceedings or was under some legal incapacity and was not properly represented10.
Enforcement under the Arbitration Act 1996
The 1996 Act provides for the recognition and enforcement and the United kingdom of ‘’New York Convention awards”, ie
awards made, in pursuance of a written arbitration agreement, in a foreign country which is a party to the New York Convention.
The relevant date for ascertaining whether a foreign country is a party to the convention is the date when proceedings to enforce
and award are begun. If a State is a party to the New York Convention are that date, an arbitration award made in that State will be
a New York Convention award (provided, of course that the award was made in pursuance of a written arbitration agreement),
even though the State was not a party at the date when the arbitration award was made. An award is treated as “made” at the seat
of the arbitration, regardless of where it was signed, dispatched or delivered to any of the parties. Moreover, unless otherwise
agreed by the parties, where the seat of the arbitration is in England and Wales or Northern Ireland, any award in the proceedings
shall be treated as made there, regardless of where it was signed, dispatched or delivered to any of the parties. The “seat of the
arbitration” means the juridical seat of the arbitration (Hiscox v. Outhwaite [(1992)1 AC 562]). This can be designated by the
parties to the arbitration agreement, any institution or person authorized by the parties, or the arbitral tribunal if authorized by the
parties. In the absence of any such designations, it is determined having regard to the parties’ agreement and all the relevant
circumstances. This ensures that, as far as English law is concerned, every arbitration has a seat.
A New York Convention award is recognized as a binding on the persons as between whom it was made, and may accordingly be
relied on by these persons by way of defence, set off or otherwise in any legal proceedings in the United Kingdom. In order for an
award to be recognized or enforced the person wishing to do so merely has to produce the award and the original arbitration
agreement or certified copies, and a certified translation if either is in a foreign language.
The court has a discretion to refuse enforcement if the defendant proves any of the following:
a. That a party to the arbitration agreement was under some incapacity. The question of capacity is to be governed by the
law applicable to that party under English contract choice of law rules. Furthermore, enforcement of the award can be
refused whichever party to the arbitration agreement lacked capacity;
b. That the arbitration agreement was invalid under the law to which the parties subjected it, ie the law chosen by the
parties. Failing nay indication of such law, validity is to be determined by the law of the country where the award was
made;
c. That the defendant was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or
was otherwise unable to present his case;
d. That the award deals with a difference not contemplated by or not falling within the terms of the submission to
arbitration or contains matters beyond the scope of the submission to arbitration;

There is a further discretion to refuse recognition or enforcement of the award which may be exercised by the court either on the
application of a party to the arbitration agreement by the court of its own motion. Recognition of enforcement may be refused if
the award is in respect of a matter which is not capable of settlement by arbitration, or if it would be contrary to public policy to
recognize or enforce the award. Whether a matter is capable of settlement by arbitration would appear to be determined by English
law as the law of the country where recognition or enforcement is sought11.
Applying this definition, the enforcement of an award arrived at after arbitration had applied “internationally accepted principles of
law governing contractual relations” (the lex mercatorial) has been held not to be against public policy. It is consistent with this
definition that an award will be refused enforcement on public policy grounds where it is based on a contract which is indisputably
illegal. Thus an award was refused enforcement on these grounds where it referred on its face to an illegal object to the enterprise
(exporting carpets out of Iran) which the English courts viewed as contrary to public policy. If the English court would not directly
enforce the contract because of illegality neither will it enforce an arbitration award based on such a contract. It is more difficult
where the arbitration has considered the allegation of illegality and has rejected it. Prima facie the award will be enforced, but in an
appropriate case the English court may inquire into the issue of illegality, despite the decision of the arbitrator.

Recognition and enforcement of judgments under the Brussels and Lugano

Conventions
The Brussels Convention
The Convention was signed in Brussels on September 27, 1968 and on February 1, 1973, the Convention entered into force with
respect to the original Member States of the Community - Belgium, West Germany, France, Italy, Luxembourg, and the
Netherlands. The original six Member States of the European Community (EC) signed the Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters (Brussels Convention) in Brussels on September 27, 1968.
Thus was laid the foundation of a uniquely European body of procedural law. It has radically altered the manner in which
judgments may be recognized and enforced in the EC, wholly replacing the convoluted system of bilateral recognition and
enforcement treaties existing between Member States.
Under Brussels Convention, a judgment rendered in one Member State is automatically recognized and enforceable in all other
Member States, with some limited exceptions. For this reason, the Convention has been described as the European equivalent of
the United States Constitution's Full Faith and Credit Clause.
A judgment rendered in one Member State is to be given "automatic" recognition in all other Member States. This rule, however, is
subject to the qualification that a State need not recognize a judgment if, among other things, the judgment is:
A court may refuse to recognize a foreign judgment under the Brussels Convention in five situations. Article 27 provides:
A judgment shall not be recognized:
1. If such recognition is contrary to public policy in the State in which recognition is sought;
2. Where it was given in default of appearance, if the defendant was not duly served with the document which instituted
the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defence;
3. If the judgment is irreconcilable with a judgment given in a dispute between the same parties in the State in which
recognition is sought;
4. If the court of the State of origin, in order to arrive at its judgment, has decided a preliminary question concerning the
status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills or succession
in a way that conflicts with a rule of the private international law of the State in which the recognition is sought, unless the
same result would have been reached by the application of the rules of private international law of that State;
5. If the judgment is irreconcilable with an earlier judgment given in a non-Contracting State involving the same cause of
action and between the same parties, provided that this latter judgment fulfils the conditions necessary for its recognition
in the State addressed.12

The Lugano Convention

In 1988, the Member States of the EC and the Member States of the EFTA13 concluded a convention in Lugano, Switzerland on
jurisdiction and the enforcement of judgments in civil and commercial matters known as the Lugano Convention, the agreement
was intended to ensure the free movement of judgments among Member States of the EC and the EFTA. The Convention
rapporteurs note:
Because of the magnitude of trade between the EEC Member States and EFTA, it was to be expected that the need would arise for
a judgment given in a Community Member State to be enforced in an EFTA country, or for a judgment given in an EFTA member
country to be enforced in a Member State of the European Communities.
The Lugano Convention therefore has the remarkable effect of establishing a basic text on jurisdiction and the recognition of
foreign judgments applicable in the whole of Western Europe.
The history of the Lugano Convention begins in 1973 when Sweden first indicated its interest in some form of agreement with the
EC for the recognition of judgments. Little happened until 1981 when Switzerland expressed similar interest.
A draft convention was produced relatively quickly after preparatory proceedings commenced in 1985, and the Convention was
opened for signature following a diplomatic conference held in Lugano between September 12 and September 16, 1988. The
Lugano Convention is based substantially on the Brussels Convention, and the two conventions share many identical provisions.
The agreements nevertheless "remain separate Conventions," and application of the Lugano Convention is limited by its terms to
specific situations. Article 54B of the Lugano Convention addresses the interrelationship between that Convention and the
Brussels Convention.
Article 54B notes that the Lugano Convention "shall not prejudice the application" of the Brussels Convention, but that it shall
apply "in matters of recognition and enforcement, where either the State of origin or the State addressed is not a member of the
European Communities.14

Stay of Actions
Introduction
In our contemporary world with easy means of communication and intercourse and with very wide and open jurisdictional rules , it
has become possible for litigants to file legal proceedings on the same or substantially same subject-matter and between the same
parties in more than one jurisdiction. The multiplicity of suits sometimes results in injustice. With a view to avoid injustice and
inconvenience in such cases the domestic laws of practically every country lay down rules for stay of actions pending before it or
for restraining a party-from proceeding further with his action that he had filed in a foreign country15.
The general rules for stay of actions have existed from the very beginning under the general law. But under the general rules the
courts have exercise very wide discretion; in no case are they bound to stay actions. With the coming into force of the international
convention on arbitration, for the first time it was accepted that in certain circumstances the court has no discretion but to stay
suits.
Stay Under English Law
Under English law the matter has three aspects:
i. Stay of English proceedings when proceedings are already Pending in a foreign court or restraining proceedings in
foreign court when proceeding are pending in an English court,
 ii. Stay of English proceedings when no proceedings are pending in a foreign court; and
iii. restraining the enforcement of foreign judgements.

This first case is cove red by that is called, the doctrine of lis alibi pendens. The doctrine applies to two situations:
a. when the same plaintiff files two actions, one in English court and the other in a foreign court; and
b. when the plaintiff in the English action is a defendant in a foreign action files by the defendant or vice versa. The
doctrine of lis alibi pendens comes into application only when two simultaneous actions are pending, one in an English
court and the other in a foreign court, when both the actions are between the same parties, and when same or similar
issues are involved and the same or similar relief is sought in both action.

In an old English case it was observed: “Where a plaintiff sues the same defendant in respect of the same cause of action in two
courts, one this country and another abroad, there is a jurisdiction in the court of this country to act in one of the three ways-to the
party so suing to his election, to stay all proceedings in this country or to stay all proceedings in the foreign country”.
In this context, it should be noted that ‘staying of foreign proceeding’ does not mean the same thing as staying domestic
proceedings. It means restraining the plaintiff by an injunction from prosecuting the proceeding in the foreign country. This does
not mean that the foreign court is asked to stay proceedings pending before it.
The jurisdiction to stay proceeding in all the aforesaid three cases is exercised reluctantly and sparingly. Just because a person has
started two proceedings, one in a domestic court and the other in a foreign court is no reason to stay the domestic proceedings
(Peruvian Guano Co. . Bockwoult [(1883) 23 Ch D. 225]) .
The criterion that English Court have developed for stay of proceedings of any type -when two simultaneous suits are pending in
two courts or only one action is pending which is sought to be stayed- is that it must be proved to be vexatious or oppressive in
point of fact (St. Pierre v. South American Stores Ltd [(1936) 1 K.B 382]).
The court also exercise jurisdiction for stay of action in those cases where the parties have under a contract stipulated to confer
jurisdiction on the courts of a particular country and in contravention to that stipulation a party can file an action in the court of
another country. In the Fehmarn [(1958) 1 W.L.R 159] the court observed: “It is well established that, where there is a provision in
a contract for providing that disputes are referred to foreign tribunal, then prima facie, this court will stay proceedings instituted in
the country in breach of such agreement and will only allowed them to proceed when it is satisfied that it is just and proper to do
so.” It should be kept in view that the ground on which stay is granted is not that the continuance of the suit would be vexatious or
oppressive but that courts make people to abide by their contracts.
In Mac-shannon v. Rockware Glass Ltd [(1886) 1 W.L.R 286], the House of Lords has laid down the following two conditions
necessary for the stay of action:
a. The defendant must satisfy the Court that there is another forum to whose jurisdiction he was amenable in which justice
could be done at substantially less inconvenience and expenses, and
b. The say would not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him
in England.

Indian Law
The object of this provision is to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon
two parallel litigation in respect of the same cause of action, the same subject-matter and the same relief and to obviate the
possibility of two contradictory verdicts by one and the same court in respect of the same (Balkrishna v. Kishanlal [AIR (1889) 11
All. 148]).
Suit may also be stayed on the ground of Constructive res judicata (Life Pramaceuticals (Private) Ltd v. Bengal Medical Hall [AIR
(1971) Cal 345]). Under section 10 it is the second suit which is to stayed and the court has no power to stay the previous suit. It is
also evident that if conditions laid down in section 10 are fulfilled the court has no option but to stay the second suit. In this regard
Indian law differs from English law where the court is invested with a very wide discretion.
Section 10, Civil Procedure Code applies to purely domestic suits. In respect to international case Explanation to Section 10 merely
lays down as under: “The pendency of a suit in a foreign court does not preclude the courts in India from trying a suit founded on
the same cause of action.” Section 10, Civil Procedure Code does not deal with the courts power of staying a domestic suit when a
suit is pending in a foreign court or the courts power of restraining by injunction or otherwise a suit pending in foreign court. The
Explanation merely lays down that if a suit is pending in a foreign court, the Indian courts can proceed with the subsequently filed
suit in the Indian court. However, the Indian courts have exercised the power of staying domestic suit when a suit is pending in a
foreign court or of restraining a foreign suit pending there under the inherent power under s. 151, Civil Procedure Code (Jethabhai
Versey & Co. v. Amarchand [AIR (1924) Bom.90]).
The Indian courts exercise jurisdiction for stay of action in those cases where under the terms of a contract parties have agreed to
refer all their disputes to the courts of a particular country and are the parties in contravention of that term file a legal proceeding in
the court of another country16.

The Proof of Foreign Law

Introduction
The established rule is that knowledge of foreign law, even of the law obtaining in some other part of the common law world, is
not to be imputed to an English judge (Nelson v. Bridport [(1846) 8 Beav 547]). Even though the foreign law is notorious, it has
been said that the court cannot take judicial notice of it. Unless the foreign law with which a case may be connected is pleaded by
the party relying thereon, then it is assumed that it is the same as English Law. The onus of proving that it is different, and proving
what it is, lies on the party who pleads the difference. If there is no such plea, or if the difference is not satisfactorily proved, the
court must give a decision according to English Law, even though the case may be connected solely with some foreign country,
and the law of that foreign country is applicable according to English choice of law rules. Foreign law is, therefore, treated as a
question of fact but it is “a question of fact of a peculiar kind”. To describe it as one of fact is no doubt opposite, in the sense that
the applicable law must be ascertained according to the evidence of witnesses yet there can be no doubt that what is involved is at
bottom a question of law (Warner Bros v. Nelson [(1937) 1 KB 209]).
How Foreign Law is Proved
It is clear that the relevant foreign law on some particular matter must be proved, like other matters of which no knowledge is
imputed to the judge, “by appropriate evidence, ie by properly qualified witness”, unless both parties agree to leave the
investigation to the judge and to dispense with the aid of witnesses (Nelson v. Bridport [(1846) 8 Beav 547]). This method of proof
by way of expert witnesses can involve a vast amount of oral and written evidence, leading to inordinate delay and expense.
Subject to section 4(2) of the Civil Evidence Act 1972, foreign law cannot be proved, for instance, by citing a previous decision of
an English court in which the same foreign rule was in issue, or by merely presenting the judge with the text of the foreign law and
leaving him to draw his own conclusions, or by referring to a decision in which a court of the foreign country has stated the
meaning and effect of the law in question (Beatty v. Beatty [(1924) 1 KB 807]).
Proof of foreign law , including Scots and Northern Irish Law , is rendered easier by Sec. 4(2) of the Civil Evidence Act 1972. It
provides that , when any question of foreign law has been determined in civil or criminal proceedings in the High Court, the Crown
Court, certain other courts or in appeal therefrom, or in proceedings before the Judicial Committee of the Privy Council on appeal
from courts abroad, any finding made or decision given in such proceedings shall, if reported in citable form, be admissible in later
civil proceedings as evidence of the foreign law (Phoenix Marine Inc v. China Ocean Shipping co [(1999) CLC 478]). Indeed , the
foreign law shall be taken to be in accordance with such findings or decision unless the contrary is proved, provided it does not
conflict with another finding of foreign law adduced in the same proceedings17.
Witnesses who can Prove Foreign Law
It is obvious that no witness can speak to a question of law as a fact and that all he can do is to express his opinion. The rule is,
therefore, that he must be an expert. The question as to who is a sufficient expert in this matter has not been satisfactorily resolved
by the English decisions. Though no doubt the court has a discretion in the matter, the general principle has been that no person is
a competent witness unless he is a practicing lawyer in the particular legal system in question, or unless he occupies a position or
follows a calling in which he must necessarily acquire a practical working knowledge of the foreign law. In other words, practical
experience is a sufficient qualification18.
The Role of the Court
The evidence of the expert may exceptionally be given by affidavit, but it is usually given orally, and he is of course open to cross-
examination. Although he must state his opinion as based on his knowledge or practical experience of the foreign law, he may refer
to codes, decisions or treatises for the purpose of refreshing his memory, but in such an event the court is at liberty to examine the
law or passage in question in order to arrive at its correct meaning. Even if the expert witness is uncontradicted by other expert
testimony, the court may examine the texts in order to reach its own conclusions on the foreign law, though were the expert
evidence is uncontradicted, the court should be reluctant to reject it (Sharif v. Azad [(1967) 1 QB 605]), unless it is absurd.
However, the power to reject the expert’s opinion is not confined to instances of absurdity in at least one situation, namely where
the English court interprets a foreign statute in accordance with English rules of construction, there being no evidence that
different rules would govern the foreign court’s interpretation (Macmillan Inc v. Bishopsgate Investment Trust Plc [(1999) CLC
478]). Essentially the judge’s finding is an to statutory interpretation and as such is one of law. The court should not examine texts
which have not been relied on by the expert or by counsel. Again, if there is a conflict of testimony between the expert witnesses
on either side, the court must place its own interpretation on the foreign law in the light of all the evidence given (Trimbey v.
Vignier [(1834)]). The evidence of one expert may be accepted as a whole over that of another but is, nevertheless, not accepted on
a particular issue. It may be necessary to find the proper construction of a particular foreign provision by inference from the
evidence of one or both of the experts, applying the rules of construction under the foreign law. In all cases, in fact, it is the right
and duty of the court to examine and criticize the evidence.

List of references
Sr.No Details
1 V. C. Govindaraja - The Conflict of Law in India
2 Paras Diwan - Private International Law
3 Setalvad - Conflict of Laws.
4 S.K.Kapoor - Private International Law

1. Paras Diwan and Peeyushi Diwan, “Private International Law” 4 th Edition (1998) Deep and Deep publication
2. North P M & Cheshire G C, “Private International Law”, Butterworths, New Delhi, 13th edn. 2004.
3. Dicey and Morris , “The Conflict of Laws” 8th Edition, Sweet & Maxwell publication
4. Cheshire and North’s Private International Law thirteenth edition
5. Cheshire and North’s Private International Law thirteenth edition
 6. Cheshire and North’s Private International Law thirteenth edition
7. Cheshire and North’s Private International Law thirteenth edition
8. Cheshire and North’s Private International Law thirteenth edition
9. Supra N3
10. Dr. S.R.Myneni, “Private International Law”, 1st Edition (2013) , Asia Law House
11. Supra N3
12. Michigan Journal of International Law
13. The Member States of the EFTA are Austria, Finland, Iceland, Norway, Sweden, and Switzerland. The 1988 Lugano
Convention is presently in force among France, Italy, Luxembourg, the Netherlands, Norway, Portugal, Sweden,
Switzerland, and the United Kingdom
14. Michigan Journal of International Law
15. Supra N1
16. Supra N1
17. Supra N2
18. Supra N3

Unit I - Introduction
Long Questions
1. Discuss the scope of Private International Law.
2. Define and discuss the Theories of Private International Law.
3. Define and explain with examples, the meaning of Codification of Private International Law.
4. Write a brief note on Hague Convention.
5. What do you mean by Conflict of Laws or Private International Law? Explain in brief.
6. Give a detail account of the Development and History of Private International law.
7. What is asignment of intangible movables? Explain the kinds and theories of asignment of intangible movables.
8. What are the conditions validating contract under Private International law. Explain the subjective and objective theories of
contract.
9. “Since laws of different countries differ, it becomes necessary in every country that rules should be developed to resolve
these conflicts”. Discuss the nature and scope of Private International Law in the light of above statement.
Short Notes
1. Distinction between Public International Law and Private International Law.
2. Give an interdiction to Private International Law
3. Subjective and objective theories of contract
4. Concept of private International law
List of references
Sr.No Details
1 V. C. Govindaraja - The Conflict of Law in India
2 Paras Diwan - Private International Law
3 Setalvad - Conflict of Laws.
4 S.K.Kapoor - Private International Law

Unit II - Jurisdiction
Long Questions
1. Discuss the scope of Private International Law.
2. What is Jurisdiction? What are the kinds of jurisdiction in Private International law?
3. What is the connecting factor? Discuss the concept of lex causes.
4. Explain the concept of domicile? What are its elements and kinds.
5. What is the legitimation, how is it different from legitimacy? Give suitable examples.
6. Discuss the concept of “Doctrine of Renovi”. Give suitable illustrations.
 7. How Domicile of Dependents are decided under Private International Law. Explain.
8. Discuss the rules of choice f law regarding the frmal validity of a marriage.
9. How jurisdiction is determined under Private International Law?
Short Notes
1. Theory of Renvoi.
2. Immunity of Property of Foreign Sovereign.
3. Money of Account and Money of Payment.
4. Rule in Travers Vs Hooley
5. Recognition of Foreign Adoption.
6. Application or exclusion of foreign law.
7. Suits of property
List of references
Sr.No Details
1 V. C. Govindaraja - The Conflict of Law in India
2 Paras Diwan - Private International Law
3 Setalvad - Conflict of Laws.
4 S.K.Kapoor - Private International Law

Unit III - Judicial Attitude

Long Questions
1. Explain the principles followed under English & Indian Private International Law regarding succession to immovable
properly.
2. What are the conditions to be fulfilled for enforcement of Foreign Judgments?
3. To what extent do Indian Courts recognise foreign decree of Divorce? Discuss.
4. What is classification? Explain the basis for classification.
5. Enumerate the rules in respect of Foreign Adoption.
6. How domicile of dependents are decided under Private International Law? Explain.
Short Notes
1. Public Policy as a limit on the application of Foreign Laws.
2. Money of account and money of payment.
3. Discuss maintenance as under Private International Law.
4. Discuss the rules relating to Divorce under International Law.
List of references
Sr.No Details
1 V. C. Govindaraja - The Conflict of Law in India
2 Paras Diwan - Private International Law
3 Setalvad - Conflict of Laws.
4 S.K.Kapoor - Private International Law

Unit IV - Contracts
Long Questions
1. Explain the theories of proper law of contract.
2. Examine the conditions of actionability of foreign tort.
3. Explain the Recognition of Foreign Adoption.
4. Critically examine the Recognition of Judicial Separation in Conflict of Laws.
5. Discuss the Jurisdiction over Corporations and critically examine the Insolvency Jurisdiction and effects of Foreign
Insolvency Proceedings.
Short Notes
1. Public Policy as a limit on the application of Foreign Laws.
 2. Negotiable Instrument
3. E-Contracts
4. Private International Law Relating to Corporations
5. Jurisdiction over Corporations
List of references
Sr.No Details
1 V. C. Govindaraja - The Conflict of Law in India
2 Paras Diwan - Private International Law
3 Setalvad - Conflict of Laws.
4 S.K.Kapoor - Private International Law

Unit V - Enforcement
Long Questions
1. Examine the conditions of actionability of foreign tort.
2. Explain the Recognition of Foreign Adoption.
3. Critically examine the Recognition of Judicial Separation in Conflict of Laws.
4. Under what circumstances a Foreign Court will be recognized to be a court of competent jurisdiction. Explain the defences
against foreign judgement.
5. What are the conditions to be fulfilled for enforcement of Foreign Judgements?
6. Discuss International Arbitration and critically examine the enforcement of Foreign Arbitral Award.
Short Notes
1. Odgen Vs Odgen.
2. Rule in Travers Vs Hooley.
3. Rahimtoola Vs Nizam of Hyderabad (1958) A.C. 379.
4. Phillips V. Eyre.
5. Recognition of Foreign Adoption.
6. Stay of Proceedings under International Law
7. Foreign Laws
List of references
Sr.No Details
1 V. C. Govindaraja - The Conflict of Law in India
2 Paras Diwan - Private International Law
3 Setalvad - Conflict of Laws.
4 S.K.Kapoor - Private International Law

Unit I - Introduction
Let us Recapitulate points dissussed in this module:
The term ‘Private International Law’ was coined by American lawyer and Judge Joseph Story in 1834
Private International Law is primordially a branch of municipal law dealing with disputes of private character, though one of
the disputants may be sovereign state
The Private International Law is merely a foliage of municipal law of each State and is administered by Municipal Courts
and not by any International Judicial body
Private International Law though a branch of municipal law, does not deal with any other branch of law, but is concerned
practically with every branch of law and thus has a very wide ambit
Private International Law, by its very nature, merely indicates the governing law under which a case is to be decided
Private International Law is a separate and distinct unit in Common Law system just as much as the law of tort or of contract
In public International Law there is no Predetermined Court
Public International Law is same for all the States
Conflicts of laws are often called Private International Law. Private International Law regulates relationship between Private
persons (Natural or Legal) of two different States.
‘Private International Law’ or ‘Conflict of Laws’ is a set of procedural rules that determines which legal system and which
jurisdiction applies to a given dispute.
‘Private International Law’ is branch of jurisprudence arising from the diverse laws of various nations.
According to Cheshire, “Private International Law is that part of law which comes into play when the issue before the court
affects some fact, event or transaction that is so closely connected with a foreign system of law as to necessitate recourse to
that system.”
The term ‘Conflict of laws’ to denote the subject has equally gained wide circulation in jurisdictions of the Common Law
legal tradition and Dicey is its chief sponsor.
‘Conflict of laws’ is a general term to refer to disparities among laws, regardless of whether the relevant legal systems are
international or inter-state.
The term ‘conflicts of law’ itself originates from situations where the ultimate outcome of a legal dispute depended upon
which law applied, and the common law courts manner of resolving the conflict between those laws.
The three branches of conflict of laws are:
a. Jurisdiction
b. Choice of law
c. Foreign judgments
According to Paras Diwan, the need for Private International Law arises because different countries have different systems
of law
India had fully developed law and custom based on Dharma
Indian literature contained a number of evidences of delivery of judgments using the logic and wisdom
During British rule, India had developed trade contracts not only with the countries of British Empire but also with other
countries
After independence, India developed the rules of Private International Law in accordance with the social needs of modern
society and according to the International Conventions.
The statutory theory is the most ancient theory.
The statutory theory of private international law was propounded by Bartolus, who may be called the father of statutory
theory
A ‘statute’ was a declaratory re-statement of old customary law of the city and its commercial community
In the middle ages ‘statute’ indicated any law, legislative or customary, in an Italian city state which was peculiar to it and
contrary to general law prevailing in Italy
A personal statute was the one which mainly concerned persons
Real statute was the one which concerned things
The mixed statute was the one which concerned acts, such as formation of a contract, rather than a person or things.
The International theory of Public International Law supposes a single set of principles binding on all nations, by which the
need of any choice between two independent systems is avoided.
Fridich Carl Von Savigny, the founder father of the international theory said the solution of the problem did not lie in
classifying the laws on the basis of their object, but in the ability to find out the seat of each legal relationship, as each legal
relationship has its natural seat in some local law
According to Cheshire, the merit of the international theory lies “in the light of all relevant circumstances, they attempt to
decide each case according to the legal system to which it seems most naturally to belong.”
The territorial law asserts that no law can exist as such except the law of the land.
According to territorial theory, extraterritorial effect is given, not to the foreign law itself, but merely to the rights acquired
under it.
The Local Law Theory was expounded by Walter Wheeler Cook.
The supporters of the local law theory hold that the court of the forum recognizes and enforces a local right, in other words,
a right created by its own municipal system
In the words of Gravesar, the theory is “one of English legislative and judicial justice, based on a consideration of what
English statutes say and what English judges do in cases to which the conflict of law applies. It is thus both pragmatic and
ethical.”
The premises of theory of justice are three-fold: sociological, ethical and legal
The major theoretical developments of private international law over the last few decades have been taken place in the USA.
They are
 a. Governmental interest analysis
b. Comparative impairment
c. Principles of Preference
d. Interpretation of Forum Policy
e. Choice of Law factors
Boxster propounded the approach of comparative impairment in 1963
Cavers advocates the approach of Principles of preference in 1933
There are two American approaches to choice of law problems under which the applicable law is determined by reference to
a variety of choice of law factors
Codification can at first have very broad meaning: enacting a written formulation of the law.
Since customary sources are scattered and difficult to assess, it is useful to codify them in order to bring them into a
coherent body
The sources of codification are either international or domestic.
Private international law can be codified either at the international or at the national level.
The codification of international law, both public and private, has never been so extended
The First Session of the Hague Conference on Private International Law was convened in 1893 by the Netherlands
Government on the initiative of T.M.C. Asser.
The activities of the Conference are organized by a secretariat - the Permanent Bureau - which has its seat at The Hague and
whose officials must be of different nationalities
Between 1893 and 1904 the Conference adopted seven international Conventions, six of which have been subsequently
replaced by more modern instruments
Public International law is the body of legal rules, which are applied between Sovereign States and other International
Personalities
List of references
Sr.No Details
1 V. C. Govindaraja - The Conflict of Law in India
2 Paras Diwan - Private International Law
3 Setalvad - Conflict of Laws.
4 S.K.Kapoor - Private International Law

Unit II - Jurisdiction
Let us Recapitulate points dissussed in this module:
‘Jurisdiction’ means the authority which a court has to decide matters that are litigated before it or to take cognizance if
matters presented in a formal way for its decision
In the broadest sense jurisdiction connotes constitutional , legislative executive and judicial jurisdiction
Jurisdiction is the power to hear and determine the particular case involved.
The term jurisdiction imports authority to expound or apply the laws, and excludes the idea of power to make the laws;
means
a. The right to adjudicate on a given point
b. The local extent within which the court can and does do exercise the right when ascertained
In private international law jurisdiction means competency of the domestic courts to hear actions and render decisions in
matters in which they are called upon to do so.
In private international law most of the countries consider the question of jurisdiction as pertaining to procedural law.
In private international law, two types of questions arise:
a. Against whom an action can be filed, and who can file an action and
b. What type of action may be filed
The general doctrine of English law is the exercise of civil jurisdiction, in the absence of an Act of Parliament
The actions that may be filed in a court of law may be divided under three heads:
a. Action inter partes or personal action
b. Actions relating to property, and
 c. Action relating to status. In the last category of action are included suits and petitions in matrimonial causes,
guardianship, custody, adoption and legitimacy
The principle of effectiveness implies that a judge is precluded from pronouncing a judgment if he cannot enforce it within
his own territory.
The principle of submission signifies that in a limited number of cases a person may voluntarily submit himself to the
judgment of a court to whose jurisdiction he would not otherwise be subject
Where private international law directs that some foreign court shall have exclusive jurisdiction, the principal of submission,
has no application
Jurisdiction of courts deals with two items:
a. Against whom an action can be filed and who can file an action and
b. What types of actions may be filed
At Common Law, ‘alien enemy’ means any person who voluntarily resides or who carries a business in an enemy or enemy
occupied territory during a war
In India, except the alien enemies, all others can file a suit or other proceedings in an Indian Court.
The term alien enemy includes not only the citizens of the enemy country but also citizens of India as well as of neutral
countries who are voluntarily residing in that enemy country
Action before English Court may be –
a. Contract made or tort committed abroad
b. Validity of the will trade by a person who died domiciled abroad
According to Tomlin’s Law Dictionary, ‘Domicile’ is the place where a man has his home.
As per Halsbury’s laws of England. “A person’s domicile is that country in which he either has or is deemed by law to have
his permanent home.
Domicile is generally identified with home.
The early concept of domicile was linked with the place where the person had his permanent home
The concept of domicile has its origin in the necessity to determine the system of law where by his personal status of human
being should be governed.
Cheshire states – “Domicile denotes the relation between a person and a particular territorial unit possessing its own system
of law.”
In the English private international law the concept of domicile is different from the notion of permanent home
Based on domicile is the principle of individual liberty, an individual is free to establish his domicile at any place in the
world
Under English and Indian Private International Law, the following are the general principles/rules of ‘domicile’
a. No person can be without a domicile:
b. No person can have simultaneously two domiciles:
c. Domicile denotes connection with a territorial system of law:
d. Presumption is in favor of continuance of an existing domicile:
‘Nationality’ is membership or condition or status of belonging to a State of Nation, either by birth or naturalization whereas
‘domicile’ is the permanent place or dwelling or home of the person concerned
Nationality depends apart from naturalization, on the place of birth or on parentage; domicile is constituted by residence in a
particular country animo manendi.
Domicile of an independent natural person may be divided into;
a. Domicile of origin
b. Domicile of choice
A domicile of origin is that which every infant has upon attaining majority, being the domicile of parent at that time
Domicile of origin is also called ‘Domicile of Nativity’ as every person at birth acquires a domicile of origin.
The moment a person gives up his domicile of choice, his domicile of origin revives.
According to English Private international law a legitimate child born during the lifetime of father has his domicile in the
country in which his father was domiciled at the time of his birth
A legitimate child born after the death of his father has domicile in the country in which the mother was domiciled at the
time of his birth
 Domicile of origin is a creature of law and no person can give it up totally.
Any independent person may acquire a domicile of choice.
For the acquisition of domicile of choice the following two conditions must be satisfied:
a. Residence in the country of domicile of choice
b. Intention to live in the country of domicile of choice permanently
“Residence” is an elastic term of which no exhaustive definition is possible
The word ‘residence’ has a time element in it, but it does not necessarily mean that a person must have been residing in the
same home or at the same place for a considerably long period
“Intention” is an intangible fact.
Once it is decided that a court has jurisdiction, the court is required to apply the law of a particular country or place
The problem of renvoi arises is connection with the application of ‘law of a country’
The ‘law of a country’ or place means:
a. Internal law of that country; or
b. The whole law of that country i.e., the internal and the rules of private international law
The doctrine of renvoi has two aspects i.e., renvoi in its narrow sense or renvoi proper (remission) and in wider sense
(transmission)
In 1841, an English Judge Sir Herbert Jenner formulated the foreign court theory thus: “The court sitting here decides from
the person skilled in that law, and decides as it would if sitting in Belgium
The foreign Court theory (Cheshire) is also called the ‘doctrine of total renvoi (Dicey), or the ’doctrine of total renvoi
(Dicey), or the ‘doctrine of double renvoi’, (Robel) or ‘English doctrine of renvoi’
The doctrine of renvoi has been criticized not only on historical and logical grounds but also on the ground of principle.
The exceptional cases in which the doctrine of renvoi has been considered to be useful are the following:
a. Title to Foreign Land:
b. Validity of bequests:
c. Title to foreign movables:
d. Status (family law issues):
e. International Conventions:
f. Transmission:
The doctrine of renvoi was an expedient through which the nations of the world could come together for framing
international convention.
Morris advocates the application of the doctrine to certain cases of ‘transmission’.
List of references
Sr.No Details
1 V. C. Govindaraja - The Conflict of Law in India
2 Paras Diwan - Private International Law
3 Setalvad - Conflict of Laws.
4 S.K.Kapoor - Private International Law

Unit III - Judicial Attitude

Let us Recapitulate points dissussed in this module:
‘Status of an individual’ means the legal position of the individual in or with regard to the rest of the community.
The rights, duties, capacities and incapacities which determine a person to a given class, constitute his status.
In English Law status is a person’s legal condition in society, either absolute or in relation to another person, which is
conferred by and at the will of the State of the person’s domicile.
The status of an individual used as a legal term, means the legal position of the individual in or with regard to the rest of the
community.
The Chief characteristics of status are as follows:
a. Conference by State:
b. Matter of Public Interest:
 c. Status is not acquired by the will of the party:
d. Universality of Status:
Status is a matter of public or social interest.
Status being a concept of social law, cannot be acquired, varied or divested at the mere will of the parties concerned.
The most important feature of Status is its universality i.e., it applies to all uniformly.
According to Tomlin’s Law Dictionary, Marriage is a civil and religious contract, whereby a man is joined and united to a
woman, for the purpose of civilized society.
Under the English domestic law marriage is defined as a voluntary union for life between one man and one woman to the
exclusion of all others.
The essential character of the kind of marriage over which English Courts will exercise civil jurisdiction is based on
monogamy
The essential character of the kind of marriage over which English courts will exercise jurisdiction is based on monogamy
and not on the religious beliefs of the parties
In personal matters or matters pertaining to family, India has no national or regional law.
In India there is no national law pertaining to family. Hindus, Muslims, Christians, Parsis and Jews have their own separate
personal law.
The personal laws differs from community to community and it seems inevitable that in India there is no one concept of
marriage
In modern Hindu law marriage has become monogamous and a dissoluble union and ceased to be sacramental union
Muslims consider marriage as a contract.
Muslim marriage (Nikah) has been defined as “a civil contract which has for its object the procreation and legalizing of
children”.
The shia Muslims recognize two types of marriages; permanent marriage and temporary marriages (muta).
The wife of muta marriage can neither claim maintenance from her husband, nor can she inherit his property
A Shia Muslim cannot contract a valid permanent marriage with a non-muslim
Sunnis do not recognize muta marriage.
In India, the Christian marriages are performed under the Christian Marriage Act, 1872
If a Christian male or female, wants to perform a marriage with a non-Christian, the marriage can be performed only under
the Christian Marriage Act, otherwise such a marriage will be void.
The Parsis consider their marriage as a Contract.
The Parsis are those who profess Zoroastrian religion.
The marriage and matrimonial causes among Parsis are regulated by the Parsi Marriage and Divorce Act, 1936, as amended
by the Act of 1988.
For the validity of marriage, the fulfillment of two conditions is essential:
a. Parties to marriage must have capacity to marry
b. Parties must have performed necessary ceremonies and rites of marriage
A marriage to be valid must be valid formally and materially.
Governing matters of capacity to marry:
a. Consent of Parties;
b. Non-age;
c. Prohibited Degree.
Dissolution means ’a break up of any constituted body of persons’ or ’the taxation of any tie, bond or binding power’
As applied to marriages, ‘dissolution’ means ‘a divorce’
‘Divorce’ is a judicial act by which the marriage relation is either dissolved or partially suspended
‘Divorce’ is nothing more nor less than another name for dissolution of marriage.
Grounds of divorce:
a. Adultery
b. Cruelty
 c. Desertion
In British India, the Indian Divorce Act, 1869 recognized only one ground of divorce
Under the Hindu Marriage Act, 1955, the grounds for divorce are the following:
a. Adultery
b. Desertion
c. Cruelty
d. Conversion to another religion
e. Incurable insanity or mental disorder
f. Virulent leprosy
g. Venereal disease in a communicable form
h. Renunciation of the world; and
i. Presumption of death (i.e., seven years’ unheard absence)
Divorce under Muslim Law is largely non-judicial. This may be divided into two heads:
a. Unilateral divorce by husband.
b. Divorce at the instance of the wife but with the consent of the husband.
Unilateral divorce by husband is called Talak.
A void marriage is void ab initio i.e. from its inception , no legal consequence flow from it.
A voidable marriage , is a perfectly valid marriage so long as it is not avoided.
Adoption’ is an act by which relations of paternity and affiliation are recognized, as legally existing between persons not so
related by nature; the act of adopting
According to Abbout Law Dictionary ‘adoption’ is “The legal act whereby an adult person takes a minor into the relation of
child, and thereby acquires the rights and insures the responsibilities of a parent in respect to such minor.”
The sole object of adoption is to provide a child to the childless.
Adoption and Children Act, 2002 modernized the legal framework for domestic and inter country adoption
Ordinarily, English Court has jurisdiction to make an adoption order if:
a. The applicant is domiciled in England or Scotland; and
b. The applicant and the child reside in England.
Among Hindus the object of adoption was to confer spiritual benefit on the adopter and his ancestors.
In Hindu Law adoption has been spoken of as ‘new birth’.
Under the modern Hindu Law every Hindu, male or female has the capacity to make an adoption if he or she is a major and
of sound mind
The Hindu Adoptions and Maintenance Act, 1956, lays down that the adopter as well as the child should be Hindus
The relationship of guardian and ward, when created constitutes one of the status i.e., the legal position with rights and
duties
A guardian, in the popular sense is one who guards, preserves, or secures.
‘Ward’ means a minor for whose person or property, or both there is a guardian.
‘Ward’ is a person, who by reason of minority lunacy or other incapacity is under the protection or control of a guardian.
The word ‘custody’ means ‘care keeping’ charge of a minor.
A natural person below the age of eighteen years is a minor.
The nationality as a basis of jurisdiction has some practical utility
Parental control can be exercised only in accordance with the law of the place where it is purported to be exercised
A foreign parent desiring to exercise his parental control over the child in India can do so only in accordance with the Indian
Law
The law of guardianship and custody is concerned with minors
List of references
Sr.No Details
1 V. C. Govindaraja - The Conflict of Law in India
2 Paras Diwan - Private International Law

3 Setalvad - Conflict of Laws.

4 S.K.Kapoor - Private International Law

Unit IV - Contracts
Let us Recapitulate points dissussed in this module:
Formation of a valid contract depends upon various elements like:
a. Offer;
b. Acceptance;
c. Free Consent;
d. Lawful Consideration; and
e. Capacity of the parties to make the contract.
The rules and regulations of different countries regarding the formation of a valid contract may differ from each other and
here arises the conflict of laws on this aspect also.
The principles, of “lex loci contractus”, where the governing law determines the capacity of the parties to contract.
The test to determine the capacity of the parties is “Lex domicilii” that means law of the place of which the parties have
domicile.
The question of consideration is decided by different rules in different systems of law.
The Negotiable Instruments, such as bills of exchange, cheques, hundis and promissory notes have been of great importance
ever since the human beings started with trade and commerce.
Various types of negotiable instruments, for the purpose of private international law are:
a. Bills of exchang
b. Cheques
c. Promissory notes
d. Bank notes
e. Bearer debentures
f. Dividend warrants
The Bills of Exchange Act, 1882, does not make any provision relating to capacity.
The ‘place of issue’ or the ‘country of issue’ is the place where the instrument is first handed over to the holder, and not the
place where it is written and signed.
The Negotiable Instrument Act 1881 deals with the Indian conflict of laws rules relating to negotiable instruments.
The negotiable instruments Act 1881, is silent on the question of capacity to enter into the main and supervening contracts
under the negotiable instruments
The Negotiable Instruments Act, 1881 is silent on the formalities.
The Indian Law makes a distinction between the liability of the maker or drawer and acceptor and endorser.
Sec.135 of the Negotiable Instruments Act 1881, deals with dishonor and notice of dishonor specifically.
The Negotiable Instruments Act, 1881 does not deal with the transfer of negotiable instruments
As the internet is a unique market place in terms of market penetration, any computer, anywhere in the world, connected to
the internet can access a web site and may conclude, though that site, an e-contract
The nature of the internet as a world wide web of linked networks and computers also, from time to time, could give rise to
issues pertaining to jurisdictions.
The internet is international in character and a person can have access to it from almost any place on the earth, hence, multi-
jurisdictional.
Private International Law or conflict of laws is the body of law that strive for resolving issues that arise out of the presence
of a foreign component in legal relationships.
Private International Law is referred to resolve questions as to jurisdiction, applicable law and enforcement of foreign
judgments.
Private International Law is a part of the municipal law and essentially aims to regulate conduct between private parties.
The following issues arise in the context of Private International Law:
 a. Jurisdiction to adjudicate a dispute at a particular location
b. Applicable law to the dispute; and
c. Enforcement of judgments in courts in foreign jurisdictions
The whole concern with internet jurisdiction starts with the presence of multiple parties located in various parts of the world
having merely a virtual connection with each other.
The Indian jurisprudence with regard to jurisdiction over the Internet is almost non-existent.
Under Private International Law, status, capacity etc of a company is determined by the law of its domicile.
Under the Companies Act 1948, an unregistered company includes a company incorporated outside the United Kingdom.
Like any other unregistered company it may be wound up in any of the following circumstances:
a. If the company is dissolved
b. If the company has ceased to carry on business
c. If the company is carrying on business only for the purpose of winding up its affairs
d. If the company is unable to pay its debts
e. If the court is of the opinion that it is just and equitable that the company should be wound up.
The winding up of a company is governed by the English Law
Under the Indian Companies Act 1956, the Indian Courts have jurisdiction to entertain winding up proceedings in respect of
the following two categories of the companies:
a. When a company has been incorporated in India, and
b. When it is an unregistered company
The foreign companies fall within the meaning of unregistered companies.
The winding up of the company under the Indian Companies Act is entirely governed by the Indian Law.
The nationality of a corporation is seldom relevant in cases of conflict of laws.
Order 29, Civil Procedure Code deals with suits by and against the companies
Adjudication of a person as insolvent or bankrupt confers a status of bankruptcy or insolvency on him and accords him
protection from his creditors.
The modern English Law of bankruptcy is statutory law and is contained in the Bankruptcy Act 1914-1926.
Before the Bankruptcy Act 1914 the English Court gave a narrow definition to the term ‘debtor’.
The filing of petition for adjudication of himself as bankrupt is by itself an act of bankruptcy.
The Indian law of insolvency is contained in two statutes:
a. The Presidency Town Insolvency Act, 1909
b. The Provincial Insolvency Act, 1920
However, before a debtor is allowed to the petition the following conditions should also be satisfied:
a. His debts should amount to five hundred rupees, or
b. He should under arrest or imprisonment in execution of the decree of any court for the payment of money, or
c. An order of attachment in execution of such decree should have been made, and should be subsisting against his
property
Under the Bankruptcy Act a petition for bankruptcy may be filed by the debtor himself or by any of his creditors.
An English court can exercise jurisdiction when the following two preliminary conditions are satisfied:
a. There must be an act of bankruptcy
b. There must be a debtor
List of references
Sr.No Details
1 V. C. Govindaraja - The Conflict of Law in India
2 Paras Diwan - Private International Law
3 Setalvad - Conflict of Laws.
4 S.K.Kapoor - Private International Law

Unit V - Enforcement
Let us Recapitulate points dissussed in this module:
The English courts have, from early times, accorded recognition to foreign judgments, though direct effect could not be
given to them.
On the recognition of foreign judgments, the following theories have been propounded:
a. Theory of comity;
b. The obligation theory;
c. Doctrine of acquired rights
d. Theory of Judicial reason or ideas of social value;
e. The theory of harmony between judgment and law; and
f. The theory of harmony between foreign judgments and conflict Laws.
The English courts have been enforcing foreign judgments from the 17th century onward.
The theory of comity is the oldest theory.
According to Black’s Law Dictionary, the term ‘comity’ means, reciprocity, courtesy, compliance, respect, a willingness to
grant a privilege, not as a matter of right, but out of defence and goodwill.
‘Comity’ means general reciprocity.
The theory of comity has been supplanted by a far more defensible principle that has been called “the doctrine of
obligation”.
The criticism against the theory of obligation is that it brings a fictitious contract into play and cannot justify the recognition
of divorce decrees and other judgments in rem.
H.E. reads has propounded the view that foreign judgments are recognized on “the ground of judicial reason or ideas of
social value or both”.
Von Bar has propounded the doctrine of harmony between judgment and law. He says that a judgment in a lex specialis, a
law regulating one single case.
Pillet says that courts recognize a foreign judgment only if the judgment has been rendered in accordance with its rules of
conflict of laws
The obligatory theory fails in those cases where the question is not of enforcement of foreign judgments but their
recognition.
In the Modern English Law, foreign judgments have never been directly executable at common law.
Foreign judgments are directly executable only under certain statute.
Both English and Indian Law provide that no foreign judgment can be enforced or recognized which has been pronounced
by a court having no jurisdiction in the cause
English Courts will not entertain an action on a foreign judgment unless that judgment is final and conclusive in the court
which pronounced it.
Ordinarily foreign judgments cannot be executed directly in England.
A Judgment cannot be registered unless it is one under which a sum of money is made payable
The registration of judgment would not be allowed, if
a. The original court acted without jurisdiction
b. The judgment debtor did not voluntarily submit to the jurisdiction of the adjudicating court, unless he was carrying on
business or was ordinarily resident within that jurisdiction
c. The judgment debt was not served and did not appear in the original proceedings
d. The judgment was obtained by fraud
e. An appeal is pending, or
f. The original cause of action was one which, for reasons of public policy or for some other similar reason, could not
have been entertained in England
Registration is effective only in respect of execution.
No action can be filed on a judgment which is registrable under the Act
In Order to be a foreign State for the purpose of holding the judgment pronounced by its courts as foreign judgment absolute
independence of that State is not necessary
A foreign arbitral award is on a similar footing to a foreign judgment in that it may be enforced in England in a variety of
ways.
 Statutory provision is also made for the enforcement of foreign arbitral awards.
There must be a valid submission to arbitration; the validity of such agreement is determined by the proper law of the
arbitration agreement.
The actual arbitration proceedings, in the absence of an express choice of the law to govern the arbitration proceedings, will
be governed by the law of the place of arbitration
Where enforcement of a foreign arbitral award is in issue, the discretion is likely to be exercised with considerably more
caution.
An award is not deemed final it proceedings for testing its validity are pending in the country in which it was made.
The “seat of the arbitration” means the juridical seat of the arbitration.
Applying this definition, the enforcement of an award arrived at after arbitration had applied “internationally accepted
principles of law governing contractual relations” (the lex mercatorial) has been held not to be against public policy.
The multiplicity of suits sometimes results in injustice.
Under English law the matter has three aspects:
a. Stay of English proceedings when proceedings are already Pending in a foreign court or restraining proceedings in
foreign court when proceeding are pending in an English court
b. Stay of English proceedings when no proceedings are pending in a foreign court; and
c. Restraining the enforcement of foreign judgments.

Suit may also be stayed on the ground of Constructive res judicata.

Under section 10 it is the second suit which is to stayed and the court has no power to stay the previous suit.
Section 10, Civil Procedure Code applies to purely domestic suits.
Proof of foreign law, including Scots and Northern Irish Law, is rendered easier by Sec. 4(2) of the Civil Evidence Act 1972.
No witness can speak to a question of law as a fact and that all he can do is to express his opinion.
The evidence of the expert may exceptionally be given by affidavit, but it is usually given orally, and he is of course open to
cross-examination.
The court should not examine texts which have not been relied on by the expert or by counsel.
In Mac-shannon v. Rockware Glass Ltd1 the House of Lords has laid down the following two conditions necessary for the
stay of action:
a. The defendant must satisfy the Court that there is another forum to whose jurisdiction he was amenable in which
justice could be done at substantially less inconvenience and expenses, and
b. The say would not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him
in England.
1. (1886) 1 W.L.R 286

List of references
Sr.No Details
1 V. C. Govindaraja - The Conflict of Law in India
2 Paras Diwan - Private International Law
3 Setalvad - Conflict of Laws.
4 S.K.Kapoor - Private International Law

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