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Element: Havinc
Element: Havinc
Private international layyjs not a separate branch of law in the same sense as . say, the law of
.contract or of tort. It is all pervading.
"It starts up unexpectedly in any court in the midst of any process. It may be sprung like a mine in a
plain common law action, in an administrative proceeding inequity, or in a divorce case, or a
bankruptcy case, in a shipping case or a matter of criminal procedure. The most triviaj action of debt,
the most complex case of equitable claims, may be suddenly interrupted by the appearance of a
knot to be united only by Private International Law."
Private International law though has an international aspect, is essentially a branch of municipal law.
This is why every country has its own private international law. Private international law though a
branch of municipal law, it doesn't deal with any one branch of law, but is concerned practically with
every branch of law and thus has a very wide ambity
The need for private international law arises because different countries have different systems of
law. Every country makes laws regarding property, succession, marriage, matrimonial causes,
adoption, contract etc. Sometimes even within a country there may be different laws applicable to
different places for example, laws of different states of the United States differ from each other. If
there is no conflict between the laws of different countries, there would be no need for Private
International Law. Since the laws of different countries differ, it becomes necessary in every country
that there should be a branch of law which is given the name of Private International Law or conflict
of laws.
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Private International Law is always concerned with one or more of three questions, namely:
ur irt .
( 7 )^Rpfognition and enforcement of foreign judgements
( 3HTie choice of law .
Thus, the subject matter of Private International Law relates to every branch of Private Law, but
only
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PUBLIC LAW:
)
Public law is that part of law which is applicab
le to State in relation to its subjects. Thp tp <u nf Public
law depends upon the nature of the parties
to the relationship in question, if one of the parties, i . e .,
the State, the relationship belongs to
Public law. In modern times since the Stats have drifted from
) laisser -faire to welfare States, which have entered
in trade and industry the scope of public law has
greatly increased. In other words, all the
acts done by the government officers in furtherance of
i
the_ cjQmain of Public law. Likewise the criminal law. Constitutional
i law and administrative law are other forms of
Public law.
PRIVATE LAW:
Private law is that part of the law which determ
ines relationshipbetween individuals in their
ordinary private capacities. Jhe law of
contracts, the law of property, torts, etc., are the examples of
Private law. The modern jurists like Kelson, Duguit do
not recognise the difference between public
and Private law.
"The objects of Private International Law are, first, to prescribe the conditions under which the court
t l .^ 1 Is competent to entertain a suit: secondly, to determine for each class of cases the particular
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U territorial system of law by reference to which the rights of the parties must be ascertained and
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* thirdly, to specify the circumstances in which :
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( a ) A foreign Judgement can be recognised as decisive of the creditor by in a dispute; and
( b ) The right vested in the creditor by a foreign judgement can be enforced by action in Englan
d."
According ttCMichael
Akehurst)there appears to be little connection between Public International
Law and tho warinuc municipal systems nf Private International-Law. Private Interna
tional Law is
different in each country; there is consequently no affinity between Private and Public International
Law. Private International Law is essentially part of municipal law.(5?ce$lcalls it as conflict of Laws
since it deals with rules regulating cases in which municipal laws of different static rnme jntn
conflict. Such conflicts may arise in connections with domicile, marriage, divorce, wills, validity of
contracts, etc. It is also known as inter- municipal law, international comity, etc. Only ir. excepti
onal
circumstances do rules of conflict of laws become rules of International Law proper, as for instanc
e
when they are incorporated in international treaties.
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The permanent court of CD
International Justice observed In the Serbian Locus case, that the rules of
Private International law may be
common to several States and may even be established by
International conventions or customs, and In the
latter case may possess the character of tree
International law governing the relations between States. But apart from this It has
to be considered
that these rules from part of municipal i
law .
Private International lav/ is distinct branch of jurisprudence which has as its major topic the body of
rules determining which territorial system of law controls Private law cases that have roots in more
than one State, canton or province. Violations of Private International by a State mav lso constitute
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violations of Public International law if they are also breaches of treaties agreeing to follow certain
practices in relation to the former. Public International law is a product not of the relations of
private persons but of the relations of States to each other and to public international organisations.
is 'one of the most baffing subjects of legal sciences'. And who also remarked that 'the average
judge when confronted bv a problem in the conflict of laws, feels almost completely lost, and, like a
,
drowning man, will grasp at a straw'. The subject is not only notoriously difficult but also very
controversial -judges differ, and so special do jurists. The result has sometimes seemed unedifying
Prosser an American writer that "is a dismal swamp filled with quaking quagmires, and inhabited by
learned but eccentric professors who theorise about mysterious matters in a strange and
incomprehensive Jargon".
"Although the conflict of laws is highly controversial, the number of permutations and combinations
arising out of any given set of facts is limited and so is the number of possible solutions. In any given
,
case the choice of law depends ultimately on considerations of reason, convenience and utility. In
the conflict of laws, to a greater extent than in most other subjects, there is much to be learnt fram
the way in which similar problems have been solved in other countries with a historical and cultural
back-ground and traditional similar to our own. Hence no apology is needed for the occasional
citation of Scottish, American and common wealth cases, even in a students' text book."
TECHNICAL TERMS:
Like any other legal subject, the conflict of laws has its technical terms or jargon. The rules of the
conflict of laws are, traditionally, pyprewH in tprms of juridical concepts or categories and locating
elements or connecting factors.
In attempting to determine what law governs in the cases in which foreign elements are involved,
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the courts seek guidance
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fro m connecting factors, i. e., the factors
r a person to a which link an event , a transaction
° country.
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Examples of such fac tors
are :
I . Lexi loci contr
actus: the law of the place where the contract was
madp-T <
Lex loci solutions: the law of the place
where the contract is to be performed ''- 4
Lex loci celebrations: the law Q the place /
where the marriage was cclebraterj/ *'*
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Lex loci delicti the law of the place where the tort was
Lexdomicilil: the law of the place where a person is domidlec
Lexpatraie: the law of the nationality/*
committed;/
/
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Lexsitus: the law of the place where the property is situated
^
Lex loci actus: the law of the place where a legal act takes places.
Lexmonetae: the law of the country in whose currency a debt is expressed ?
Lex loci disgrazine: the law of the place where a bill of exchange is dishounred . ^
The above terms are used in relation to Lexcausae. The lexcausae is a converiie ^nt short hand
expression denoting the law which governs the question- Itis- used in contradiction to the lexfori,
which always means the domestic law of the forum.
V Igra (1951).
England. Suppose that such a marriage is
If , for example, first cousins domiciled in Portugal marry in
English court will hold this marriage void, even if
valid by English law but void by Portuguese law. The
inferred from the court of Appeal decision in
the parties wished it to be valid. (This may be
decision does not serve the interests of the parties, but
Sottomayor V De Barros (1877)). Clearly this
,
expectation
interests of a foreign country and partly in the
it is based on comity partly to protect the
that the favour will be returned. comity is a matter for
comity ' itself is incompatible with the judicial function, for
The word ' Again, if
sovereigns not for judges required to decide
a case according to the rights of the parties.
readiness of
,
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-ar-"! ,— for arrMnB a a complete and just decision, it
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il shou d' decide under the law of Singapore or Pakistan
^ requires thatT T°
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f r th npPl&
° ,° atlQILO f _tb e_f o tgjgn.Ia WJS said to be<ficmand of
re n aw si ouid be applied
* ' . ) It justice
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applicat ' o
. The
protagonists of this view sav that invariable
f xh
f thC SG rcspectors cult
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challenged on the ground of lack of
tomes for consideration before an English court and its validity
proper formalities of marriage. If English law is applied the
marriage will be void as among self
-respector Hindus only ceremony of marriage that is required is
exchange of garlands and rings between the
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bride and bridegroom. As per the demand of justice the
English courtshould apply the Hindu law.
The greatest difficuIty-thatoneJaces.in the application of this theory is as to what is the meaning of
justice. According to graveson it is to a great
extent a legal reflectionolglhicaLand moraLyaluss
,
—
CQnriitioned-byLtimp, plane nri rjp umstanrps, much as the concept of reasonableness in common
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law is a reflection of contemporary^ social values
Cv O .
Justice Chandrachud said that recognition is accorded "not as an act of courtesy but an
/•> consideration of justice".
Whatever may be considered to be the basis of the application of foreign law, it is now accepted
principle that in a case having foreign elements, some appropriate foreign law is applicable.
V
FUNCTIONS OF PRIVATE INTERNATIOANL LAW:
JURISDICTION:-
L The law of procedure of every country lays dowjLthatin-whaUnattecwhich court will have
.
jurisdiction _The procedural law also lays down rules for other matters of procedure and in some
systems of law these rules apply to all types of suits, to suits having foreign elements. The Indian civil
procedure code and the law of civil procedure of many other countries lays down that the court shall
not proceed with the case_unless the service of summons is made on the defendant. This rule applies
. . . ,
to all defendants, including those who are living abroad. Looked at from this aspect the
, question of
jurisdiction is a fundamental question in all suits and legal actions. However, for the following two
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1 reasons it has special significance in Private International law.
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whejUhejj&fendanLis
l j First , in certain circumstances the court exercises jurisdiction in a case even
) absent. In a suit whose all elements are interval, the judgement rendered in the absence of the
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defendant. Such a judgement may also be enforceable when it has some
the court that rendered the judgement is concerned- But, then, such
foreign elements|o_farjs
a judgemenynayjiot.be
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recognised elsewhere.
La
~ Secondly, these are certain matters
marriage or in a suit relating to
defendant is present, such as in a petition for dissolution of
^ immovable property situated abroad. The question of
jurisdiction r , ay arise before the court in the
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/> ^ a suit Is filed
( b) Whenjho
guestlon
before the court the question arises
whether the court has jurisdiction, or
^
before the court is of the
enforcement, the court may be called recognition of
ajoreicn judgement or its
upon to letcrmine
the judgement was a
)
court of competent jurisdiction
the principle that the court renderin
^whether the foreign court that rendered
. Normallythe rule s of jurisdict
-) ion are based on
g ludaement
c. (T
countries of the world re unanim
place has jurisdiction
^
must be able to enforce it Today most
ous on the view that in respect of
- . of the
innovations th court of that °
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where the property Is
unanimity. Similarly, in suits relating to persona
situated. But In respect of movables there
l matters there is no uniformity
.
^ is no such
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countries including India civiLproceduieJav/Jays _
l'* " down dgtajledju|&jegarding he-recognltiQn.and enfprcement
^ of foreign judgements. Once- tbe
,
¥ CHOICE OF LAW:-
Once the court comes to the conclusion that it has jurisdiction, then in a conflic
eT
f
t of lav/ case (case
having foreign element ), the question that arises is: Under which lav;
the suit shouldbe decided..??
y
Whether the law of the forum (
internal
law ) will apply or whether some foreign lav/ or foreign laws , .
will apply. This is known as the question of choice of law,,
<
/ - * -The action before a court, for instance, may concern a contract made or a tort committed abroad or
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the validity of a will made by a person who died domiciled abroad. In each case that part of the
country's law which consists of Private International Law directs what legal system shally apply to
the case, i.e., to use a convenient expression, what system of internal law shall constitute the
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applicable law. For example, a wife files a petition for judicial separation in an Indian court under
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Ijy J Hinffus married in England, and while thevw/enLtO-New_Yoriahe_hu5band desertedher theie- The
( Indian court has jurisdiction now the question is, which law should be applied: Law of England, New 3c
Private International Law. Private International Law merely informs as to which systems of law,
foreign or domestic, will govern the matter. English Private International Law, for instance, requires
c
that the movable property of a British subject who dies intestate domiciled in Italy shall be c
distributed according to Italian law. These rules for the choice of law, then, indicate the particular
legal system by reference to which a .solutio <
n of the dispute must be reached. This does not
necessarily mean that only one legal system applic
is able, for different aspects of a case may be <
Boverned by difficSGIt laws, as is
Eoverned by different laws.
the case with marriage where formal and essential validity are <
The function of Private IntemationaLLaw is complete when it has chosen
g_ a£gropriate systemofjaw
^ ‘,
. its rules do not furnish a direct solution of the dispute. As said by
rC tH S depart
! ,
must f aw resembles the inquiry
nray learn the platform ° office at a railway station, where a passenger
at which his train starts
.
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UNIFICATION OF PRIVATE NTERNATIONAL LAW:
'
noe or Private International Law arises becnus j the
' Inter nal laws of different countries differ
Wi
:
rom each oth(? o The dlffcrentcJs not only In the Internal laws of the different countries, but also In
3
t c Private International Laws of_ the d|
^ . ,on account of which sometimes conflicting
. ffcreni. £ounttlcs
decisions are pronounced by the courts of different on the same matter. Thus, the need for the
unification of rules of Private International Law lses.
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CIVIL AND COMMON LAW SYSTEMS:-
^ V t i* 'A
Thero are two major systems of law, the common law and the civil law. These two differ from each —
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other as to the rules of Private International Law. Germany, Switzerland and Scandinavian countries ^
restrict the scope of Private International Law to pi oblems of conflict of laws and matters
relating to i u- J
status of foreigners fall under a separation to branch called the law of foreigners. Private
International Law of Soviet Union and of the People's Democracies of Eastern Europe include
within Ltv
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its abmit the rules of choice of law along with all the connecting factors such as nationality or tji
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domicile, the place where the contract was entered Into or is to be performed. However the
, rules "
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relating to resolving of conflicts of Jurisdiction are not Included within the rules of Private t
International Law. They are considered to relate to procedural law. The countries of the
common
law systems include the rules of jurisdiction as well as the rules of choice of law within the scope of '6
Private International Law .
' There,are (fwo modjgforthe unit
the inteyal laws of.the countries of the world.
J^,(a) Unification _of
tb)TJnification of the rules of Private International Law.
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UNIFICATION OF INTERNAL LAW: - __
laws was taken by the (Bern Conventionjbf
The first step in the dire.ctionflfJhe.unLficalion-OfJntemal ' '
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International Trade Law- jNCITRAL
,
LAW:-
UNIFICATION OF PRIVATE INTERNATIONAL possible to
ideolog ical differe nces among the countries of the world, it is not
Because of basic
)
With the establishment of the Mughal Empire
in India on many matters rules of Muslim law came to
In a very.wldejnd.broad sense Indian law means all rules of law which Indian courts
apply when
which the courts determine the questions of jurisdiction and choice of law. Inj narrow sense, Indian
law means allsuch rules excluding the rules of private international law.
Sections 9 to 35 - A and 44-A of Indian civil proceduifiLCQdfiJ.908 deal with the aspects of jurisdiction.
In general, section 13 of the code deals with recognjtion and enforcement of foreign judgement in
particular. Indian courts have adopted and following the English
rules/principles relating to choice of
law in torts, contracts, marriage, status etc.
It has already been said that certain international efforts have been made
to bring uniform rules of
private international law with little succes
s. Even the conventions that have been entered into by
parties/states can be recognised or incorpo
rated in the municipal law as private international law,
though has an international aspect, is essentially a branch of municipal law. Thus, it can be
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concluded that the inte
rnational conventions to become part of municipal law, specific adoption Is
required .
) TITLE:-
According to Cheshire the expression
adoptr j by
"Private International law", coined by story in 1834, was.
the earlicr.Enixlish authqrsf such ns West take and
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countries. The chief criticism directed against lt Is
^ Foote. and is used In most civil law
« Its tendency to confuse private International law
with the Jaw_of nations or public International law,
..
as It Is usually called
The fact is that no title can be found that is accurate and comprehensive
, and the two titles "Private
International Law" and "The Conflict Of Laws" are so well known to, and understood by, lawyers that
no possible harm can ensure from the adoption of
either of them. The title, "Private International
Law" is most widely used throughout the world and
in Cheshire's view the title "Conflicts of Laws" is
preferable .
Both the above titles are subject to criticism and a few more titles
have been suggested but these
have been so much criticised as cannot be accepted as a title for the subject They .are:
(apnternational Private Law",
( bPnternational Municipal law".
(c)"Comity",
(d)"The Extra territorialRecognltion of Rights
".
In spite of a number of criticism, only the titles "Private International Law
", and "The Conflicts of
Laws" have been considered suitable for the subject.
2 - Classification or Characterization CH - 2. ©
* *,
mUC 1 c cl entis on how the issue is classified or characterized. Is it an
r, * 0 r
issue ul b "
C
. commission ol a ton ? I his may be labelled as classilicalion
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nee this has been determined, the next stage is
to ascertain the governing
which, depends on some connecting
factors, such as lex situs , the lex loci delicti, and so
forth.
Every' legal system arranges its rules under different categories which must form the
basis of a plaintiffs claim. These categories mav be concerned with tort, contract, property,
status, succession, etc. Before the forum can proceed to ascertain the lex causae , it has to
dgtermine the particular category into which the action falls. Does the action relate to the
formal validity of a marriage, intestate succession to movables, or some other category?
An action mav fall under more than one category, for example, an employee may be
able to sue his employer either in contract or tort; or the action may not fall under an^ of
them, such as the duty of a father to provide a dowry for his daughter under Greek law
lFhranlzges v Argentina ( 1960)J.
The crucial question therefore is how does the forum classify the cause of action? Is
the classification made according to a country’s internal law? It is obvious that this
classification process is very crucial to the outcome of cases: however English case- law does
nol ^-
.
i mrliiiw this process is dr should be conducted.
“there can be little doubt that classification of the cause of action is in practice
effected on the basis of the law of the forum. But since the classification is required for a case
„
^
.
nT , ainin a foreiun element it
, should not necessarily be identical with that which would be •
Once the legal category ot a given case has been identified, the next stage is to apply
the relevant choice of law rules in.ordec.tn identl£y_tlie exv _ cauxae. _ However, even
this
^
stage it may be necessary to classify a particular rule in order to determine whether it trrfhs ' 1
at
within one choice of law rule or another. This process can be better illustrated by examining
the choice of law rules. For instance, capacity to marry is governed by the law of each party ' s tacvO
ante -nuptial domicile, and the formal validity of marriage is governed by the law of the
.
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phtce where the marriagejwas celebrated. A problem of characterization will arise if it is
doubtful whether a rule of the domicile of one party is the rule of capacity in which case it
will apply, or whether it is a rule of formality in which case it will not apply.
In other words, once the main legal has been determined, the next step is to
category
apply the correct choice of law rule in order that the governing law may be ascertained. The
correct rule will depend on some connecting factor, such as domicile, or the situation of
immovables, which links the question to a definite legal system. X, for instance, dies intestate
domiciled in France, leaving movables in England. Since he has been connected by domicile
with France, the operative rule for the choice of law is, therefore, that the question of intestate
"
succession must be governed by French law. However, at this stage the second process of
classification lias to be gone through. It may be necessary to identify the legal category into
which some particular rule falls, in order to discover whether it falls within a particular
category with regard to which the law selected by
choice of law rules is paramount. That law
.
has a certain sphere of control, i e„ it governs some
but not ail aspects of the. juridical
0 relevant fh ’ • ^ undci stood that incases containing a foreimi element , although the
3
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selectcdjmd applied , it does not mean that all nuestinn < m- kim tv. -
is
3 Sometimes there may be conflict between the lex fori and the lex causae on this question of
. classification; lex fori may classify the rule as procedural, whereas, the lex causae may
3
classify it as substantive. The further question naturally arises as to which classification must
be adopted by judge.
2»
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England wjdiniit nhtgining parenlaLconsent as required by Art. 148 of the French Code
. ,
O
- - manage void for the violation f Art. » 48 Subsequently the
° .
o frrr h rnprt holding flic
woman married an English man in England . This Fnglish
_
man after some time instituted . ^
3 _ _
presentacti.on.in an Eaglish.Court praying. fbr.a decree.
of nullity_ of; hi§ marriage onjhe
3 .
ground that at thejjm <LOf marriage .the woman.was
married to the,French man . The question
in violation of the requirement ot
3 raised was the validity of the marriage with
the Frenchman
3 parental consent.
_
The court classifie.d JheJjulc.. - ^
_
pf parental onscnt as. one relatingjo formality or
.
_
* rocedure. A 7
the w
^^
e took. gjacejnEnfilandjhe formal validity is
_
govemedby Enghsh
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(V) CM©
parcnial consent and held the marriage with the French man valid with the result that the
subseau ent marriage with the English man was void. This classification of the French rule of
parental consent as a matter relating to ceremony rather than substance, has been subject to
.
severe criticism It has been pointed out that the rule of parental consent is one which affects
the capacity of the husband to enter into the marriage relationship and therefore is a matter
relating to substantial validity.
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3 Incidental Questions
» 3 A case involving private international law may place a subsidiary issue, as well as a
main question, before the court. Once the relevant choice of law rule has been applied and
law to govern the main issue is thereby determined , a further choice of law rule may be
required to answer the subsidiary question affecting the main issue.
-3
- 0 Sometimes categorization also raises the so-called jncidental Question , which is also
called a preliminary question and it arises because the main problem may not even if
. .. ,
resolved , answer the question to be determined hy the court . This problem may be explained
as follows.
If the main problem relates to succession, the issue will be resolved by resorting o the
rule settled in ( English aiid / lndian ) a country 's conflict of laws, that succession to immovable
o
property will be decided by applying the /e.v situs and lex domicilii, respectively. But this
answer may not resolve the issue before the court.
3 _
If, for example, under either thg /e.r situs or the lex domicilii, a wife is the person to
.
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inherit , a question may arise \ vhether_ a _ particular person was, in law , the wife of the
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deceased - which mav raise the incidental question of-the _validity_ Qf the marriage of that
3 personJOther instances are: whether that marriage was bigamousor potentially bigamous,
3 and, therefore, invalid (as was the law in England in the past); is a particular person the
3 legitimate child of the deceased etc.
3 These are incidental questions in as much as they arise afterthe^ court has determined
3 the lex causae as far as the principal issue of succession is concerned . Moreover, these
questions might involve the application of different rules of law depending, for example, on
3
when , and where, the parties married , or the child was born . The rule of law to determine the
3
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so called incidental question mav not he the same as the rule of law to determine the law
3 applicable to the question of succession to the property of the deceased . Whilst the lex causae
3 to determine the rule of succession would be the les situs or lex domicilii of the propositus.
3 whether ‘ X * was the wife of the deceased may depend upon theJaw of the place where the
D marriage was celebrated .
3 The problem seems to have arisen principally in cases where the question whether a
second marriage was or was not, valid.
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hi several decisions where the question has arisen, the courts have applied to the
incidental question the same law which was applicable to the principal questioj). at times
^
without dealing consciously with the question as a separate question. In brief, it ma>
that the following are the elements of an incidental question .
An incidental question properly so-called presumes the existence ot three facts. The
_
© main issue should under the ( English ) rules of private international law, be governed by a
_
foreign law. There should be a subsidjary question inyolvjng a foreign element which could
have arisen separately and which has its own independent choice of law rule. This choice of
law
rue should lead to a conclusion different from that which would have been reached hud
(D
^ the law governing the main question applied . Without these pre - requisites there is no
been
“ incidental question”.
The way in which the incidental question arises may be illustrated by the decisions
Lawrence v Lawrence, [1985] Fam 106 ( English decision ) and Schwebel v Ungar. ( 1963 ) 42
L) LR ( 2d ) 622 (Canadian decision ).
Lawrence V Lawrence.
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Facts:
The firsHiushandjind
his wife married in Brazil and lived there until 1970. In that
.
year the wife obtained a divorce in Nevada USA , which was not recognized in Brazil ; but the
next day she married the second husband in Nevada. Later, the second husband petitioned for
a declaration as to the validity of this second marriage.
An incidental question arose from the fact that , under Brazilian law, being that of the
wife’s domicile to which English choice of law rules referred capacity to marry, she lacked
capacity to marry' the second husband. On the other hand , the Nevada divorce was recognized
in England under English divorce recognition rules ( Recognition of Divorces and Legal
Separations Act 1971; now Family Law Act 1986, Part II ).
^
The Court of Appeal by a variety of reasoning, (upheld the validity of the second
^
marriage. The effect of this was to
expense of that of capacity to marry .
give ,
primacy to the divorce recognition issue at the
Schwebel v Ungar
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Th ,s decision a -<3)
— >rovidp^
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-**( onverso example of the incidental
Facts: ^ pr |h
2jjd 1vorce / recognition .
[ncsti n where the
.
A Jexyish husband
Qd vife, domiciled in Hungary , decided to
^^ settle in IsrncI . When
they were in Italy
n
-^^^- _
jsraeUhyuishand divorced his wife by “ ReC. Under
—
Hungarian law , the jaw
2!iheirdoinicilc. and under Italian law ihk was invalid hut it ,
\vas effective according
to Israeli
^
"
.»c » d ~ ami l >m They then acquired an Israeli domicile and whilst
dom
,
^ ^_
. efly the wifcjater visited Ontario
and married second husband who ultimately
petitionedthe Ontario Court for a _
decree of nullity cn thQ.gtautid.of_ his “ wife - s" bigamy.
,
The Canadian Court had not only to consider the question of the wife canacity to _
'
ilia try, governed under Ontario choice of rules by Israeli law, but also the question of the
validity of the wife’s divorce by “get”. Under the Ontario rules of private international law,
thg divorce would not be recognized but it would unde the kmelLmlgg. The Supreme Court
^
^
of Canada (upheld the validity of the second marr iage.) lt was . valid by the law of Israel , the -
law governing the capacity to marry, and this prevailed over the Ontario rule denying
recognition to the divorce. Here, capacity was ,
regarded as the main question, to which
divorce recognition was incidental.
Dcpccage
English or —-
marry in France, then
cwn
,
~~
[ n facti if tlie dispute is as to thrjnrmal :
(<
,
validity pj liymajage ,
^ »
refettnce wiU ^^ wi ) 1 be dCtgfmiJ nren rHing to the English law as the antenuptial
^
oj ofjgPgE& .
dnmiciliaj
i
law of
^ the
\
to be analysed
the one general issue of the validity of marriage has
Here it is clear
arate sub
that
issues .-A similar_example i5-P _ in the law of the contract where
husband and wife, both domiciled in a foreign country, are involved.in.a.motor accident in
England in which theJiusband negligently injures. the- wife. this would be classified as a tort
problem to which the appropriate choice of law rules would be applied, pointing as a general
rule towards the application of English law, though with the possibility of this being
.
displaced in favour of the law of another country Let us assume, however, that although an
action will lie between husband and wife under English law, it .will not so lie under the law of
their domicile. Is it to be said that the question of interspousal immunity arising n a tort claim
is a tort issue or to adopt a more subtle categorization and suggest that the interspousal
immunity issue is a matter of status to be segregated from the tort context in which it arose
and be referred to the law of the domicile? ( Warren v Warren [ 1972] Qd R 386). The latter is
the better approach (Cheshire).
The problem can become more complex, as where the law of domicile would permit
'
the spouse to sue but, but its substantive tort rules would deny the wife recovery, for
example, because she was guilty of contributory negligence, whilst under the law governing
liability in tort a wife cannot sue her husband, apart from that, she has a good claim in tort. 1 f
, ,
_
one picks and chooses, then the law governing jhe ort issue may onjy be applied to .the.tort
.
questions of
issues of the wife’s claim, whilst the law of the domicile is applied to the
interspousal immunity. The result isjhat the wife can recover by picking and choosing
all issues,
d . fferent laws to govern different issues, though had any one law been applied to
she would have failed.
o
^ cn an English Qourt refers an issue lo a foreign law it nearly always refers to the
.
icstic rules ol that law. In some instances, however, the court treats this reference to the
o
foreign law as a refereneejo thcconHict rules of that law. This is called
renvoi.
For example, in Ke 'Ross (1930), the testatrix, a British national , died domiciled in
_ _
Jtaly. Shejeft movable property. in.England and movablc and immoyable_propeity in Italy.
relation lo her English and Italian estates were valid by English domestic law of
succession, but inyajjdjbyjtalian dojtiestic law because she had not left half of the estates to
-o her son who contested the wills.
O
•
Under English conflict of laws, the essential validity of the wills was governed by
Italian law as law of the domicile . of the te ti-ix ( in relation to the movables), and the
lex
.
^
- 3 situs ( in relation to the immovables). Under Italian conflict of laws, this issue was
governed
English Court applied
by the domesticJaw of.the nationality of the testatrix. As a result, the
^
- 5
English domestic law and the wills were held to be valid.
it is not part nf F.
nglish law
-
,3 on )
Forgo’s case ( French Decisi
73
Forgo, a Bavar ian natio nal .
domic iled in France died intestate in France
leaving
5
"
£
s
Scanned with CamScanner
to be distributed. According to French Private International Law, jhejaw. to be applied was
hiu or nationality, namely the Bavarian law
^
Bavarian law in what sense?
Bavarian law was taken in the wide sense of the whole law of Bavaria including
Bavarian Private International Law.
( Forgo was
illegitimate and under French law, collaterals would riot -succeed-to his
movable properties and so the properties would pass on to the French government; but tinder
Bavarian law, collaterals could succeed to the properties) .
According to Bavarian Private Interna
tional Law, succession to movables was _
governed by lex domicilii . So the Bavarian law
referred the question back to the French law .
This reference was accepted by the French Court nnH the French
law of succession was
applied, thus depriving the right of succession to Forgo
’s collateral relatives.
(b) Double Renvoi
Facts: The case was concerned with the validity of a will executed bv a woman named
,
Which law should be applied in deciding whether the will was valid or not? \
Court held that French law should he applied . The indue reached that
_^
concluSiqnj -g |yjng foreign court theory. English Private
^ ^ International Law refers 1 the
JWe*tion ofyalidity of wjlls to the law of domicile. namcIv- FrcnclUaw -
^
J *c ^ oold find that according to the French law he. has to apply thcjiationalily. that is.
.
This theory has enthusiastic supporters and detractors in England . 'Oicep strongly
supported this doctrine. But, Cheshire has voiced strong objections to . .
it Ir Cheshire’s view ,
this theoiy is “objectionable in principle, is based upon unconvincing authority and cannot be
said to represent the general rule of English law"
So far as English decisions are concerned there are decisions which expressly approve
the theory but according to Cheshire, these decisions are exceptions and can be confined to
certain areas. Cheshire maintains that as a rule when an English Court is referred by English
Private International Law to a foreitin system ol’ law ^ the court simply applies the internal law
of that legal system without bothering about its rules of Private International Law
-
Drawbacks of the Foreign Court theory
( a) Foreign court theory doesfnopnecessarily assure uniform results. Uniform result will
^ be produced only if the theory is accepted by one country and rejected hv rhe other. 11'
Recognized by both , there will be an interminable reference forth and back, what
Cheshire calls “ International came of lawn tennis”.
t 1
rule. The effect of this theory is to substitute a foreign choice of law rule in preference
• to the English rule. The English rule is discarded/ since it does not meet with the
/
^ approYaljpf the foreign law maker.
> to ascertain what precisely will be done by the foreign judge. This
creates two serious
^
» IP
^ ^
law refersjjjg uestion to the natjonal law . In countries like England and America,
where there are several territorial systems of law within the same country, it is
meaningless to speak of national law.
^ ^
Pnarrjgge ) and that it should apply to
£ses inyolying PlejQjmmovable pro pert) . Renvoi does not, however, find a place in the
fields of contract or torL
,
'
,
In spite of the difficulties and inconsistencies involved in the application of the theory
of double renvoi, this doctrine was reiterated by the Privy Council in the case of Kolia e.
Nahas ([1941 ] 3 All E. R. 20) and also in the case of Re Full 's Estate (No. 3 ) ([ 1986] P 275.
[ 1965] 3 All E.R. 776).
Though there is no discussion of the theoretical basis of the decision, the Supreme
Court had clearly held the renvoi rule has no application in the field of contracts ( National
Thermal Power Corporation v. Singer Co., AIR 1993 SC 998).
-
The Supreme Court in Viswanathan (R) v. Riikun-ul Mulk Syed Abdul Wajid ( AIR
1963 SC I ) observed that every issue relating to lipmovable property is to be dealt with hy
.
the courts of the country where the property is situate, have the effect of ruling out the
application of renvoi in such cases.
I 'nets: A an Indian went to England and staved for the period of 30 years lie had both
movable and immovable property situated in India as well as in England . He did not obtain
England so Indian domicile was still applicable . The property situated in
t|ie domicile of
Prcplnnd was sold after his death and the usufruct was deposited for the heirs in Indian Court.
In India, theC 1 |
P PC ty
laws of ii„»
feared
° amongst heirs is to be administered according to the personal
, noth movable and immovable properties «iiiunted in India were
distributed accnnim a to internal law
Indian courts accepted the doctrine of
renvoi regarding the immovable pronert \
siluated in Enghnd and administered amongst
^ ^ heirs according to lex situs, that is, English
law.
joyser .
| In a
I
matter not raising issues of conflict of laws, Lush LJ explains in
_ ^ v Minors)the
meaning of procedure “die mode of proceeding bv which a lean ) right < <; enforced , as
djgtipguished from The law which gives or defines the right and which, by means of the I
i
proceeding the Court is to administer the machinery as distinguished from the product.”
Although the principle is certain and universal, its application can give rise to .considerai
difficulty, especially when trying to establish a test by which procedural rule can be
distinguished from a substantive one. Unless the distinction is made with clear regard to the
^
underlying purpose of private international law, the inevitable result will be to defeat that
purpose. So intimate is the connection between substance and procedure that to treat an English
rule as procedural may defeat thepolicy which demands the application of a foreign .substantive
^
law. A glaring exanTple to this is afforded by sectign LoQhe statute.QLErauds, which formerly
^^
provided that ncTactSorTshould be brought on certain unless there were evidenced by a note or
• memorandum signed by the party to be charged or by his lawfully authorized agent.
France. This precontract was fojmally valid by French law. When the employee sued to enforce
th e contract in the English court, the employer relied on section 4 of the statute
of Frauds unde
which, because the employment was to last more than a year, “ no action shallbe brought^ upon ^
any agreement unless the agreement . . .or some memorandum or note thereof,
shall be in
writing, and signed by the party to be charged therewith ” .
governing law. If the English rule is substantive, it is ignored and . the_ foceign law appljed.
The problems can , however, arise in circumstances where, although the. applicable law is
foreign , there is some doubt as to whether the rules of that country’s law are procedural ( and
to_ be ignored in ErmlamlLatLSubstantive ( and to be_applicd in EnclandY (eg. Harding v.
Wealands [2007] 2 AC 1 ).
Chase iVlanJuptan BA NK NA v. Israel - British Bank ( London) Ltd ( 1981 ) C/» 105
The plaintiff, a New York bank , sought to trace and recover in equity 2 Million pounds, paid by
rrpcinke tnahe- accouni-of - the. defendant bank . The issue was whether the plaintiff hank
was
entitled totrace the proceeds. Although the court held that there was no significant difference
between the two relevant laws, English and New York Law, on the to trace. Goulding J asked the
~
question- “ Whether the equitable righf of a person who pays money by mistake to trace and
claim such money under the law of New York is conferred by substantive law or is of a merely
procedural character. He concluded thatjhe view of an English Court . Would be that the New
York Bank had , under the New York law, an equitable interest as a Cestue Que trust which was
substantive in nature.
• Why did the judge ask the question as to the nature of the equitable right to trace?
Presumably , because if he baud found the New York rule to be procedural , he would
i \ England .
have been unwilling to apply it |
only the interpretation of a contract , but the assessment of damages for its breach, and the
applicable presumption would be governed by lex causae . Foreign Limitation Period
Act 198 -1, under which generally, unless contrary to public policy, the llimitation rule of lex
~ f )
causae willjbe followed^
Particular Issue
Generally under English law all the routine matters arising in the successive stages of
litigation must be governed as being the law .of forum , for e.g. service of process,
competency of witness, questions as to admissibility of evidence and the burden of proof etc.
procedural , while statute of latter kind is substantive. In general , the English law as to <
limitation of action had been as procedural ( Williams V. Jones) but section 3( , 17 and
27 »
25(3) of the limitation act 1980 are probably substantive since they expressly extinguish the
title of the former owner.
f
Sometimes a statute creates an entirely new right of action unknown to the common law and
t
at the same time imposes a shorter period of limitation than that applicable under the general
.
. law. E.g. Civil Liability (Contribution ) Act 1978
«
e
The decision of the Court of Appeal is instructive in this regard. This is a case
in which law
of Abu Dhabi was applied and held the suit was maintainable.. The suit
was based on
contract. Under that law the claim was not time-barred To give effect to the European
.
Community Convention on the Law Applicable to contractual Obligation
(1980) the ECA
was enacted. The 1984 act broadened the common law approach which
favored the
application of the domestic law of limitation .
.
Lmt (liniitation) of Action in India
In India, our courts have generally taken the view _tbat limitation only bares the remed
y
except in cases where the rule of prescription applies as when, if the time for an owner of
.
i
,
I
1
Sec sec. 4 of the Foreign I ml. Period Act 1984. <
"
Herein afterward ECA . I
) i
i
G
c
is extinguished .
3
<
?n rSSflHSEfc•* ">
SSSSi
.
limitation
_ ^
The Sypieme Court. has - reiterated the distinction between the rules of limitation . Which
merely bar the remedy and the rules which extinguish the right , and observed that the lor mer
{
rule of limitation i the country where the contract was entered into would be defense to a
. ^ £
^
contracts would be governed by the period of limitation. Prescribed under the act , and that no
suitjn India [s U ] velji Bharmal v . Samji Po a AIR 1952 Kuch 27. The discretion of courts
in India is thereof restricted. '
.
Article 112 of the schedule to the limitation. Act, 1963 provides that, the period of Imt ' .
( Except in the case of the exercise of the original jurisdiction of the Supreme Court ) Jfor the
suit filed by either the central or state govt , including the state of J & K. would be 30 years)
Various-Acts. prescribed different rules of limitation , In specified situation and May also
provides that a suit should not be maintained unless notice of the proposed suit cet is ixJ) "'
_
maintainable unless notice of the proposed suit js giy.en-earliej; for e.g. Sec. 80 of CPC 1908.
It may be said that these provisions would apply if suits are filed in India.
Other statute prescribed special rules which are likely to involve a foreign element: include
the carriage by Air Act 1972 (which implements Warsaw convention and The Hague
protocol relating to carriage by air prescribed a period of limitation.
_
two yearl/Carrier's
act 1865 merchant shipping act 1958 and multimodal transportation qr goods act 1993
provides that a notice of loss is to be given within a specified period before filing a suit. The
rules prescribed under these laws must be followed , if a suit comes within the ambit of these
laws as these being special rules would preyaUgyer the general provisions .
Parties
_
It is for the lexJqri.lo determine whojhe proper parties, to the proceedings are Where
,
- .
whether a political party has legal personality , the English
however the question turns on
_ ,
i
court will accept the view onheJaw
S 27 of the limitation
act. 1963.
^
onhe coun in which the entity is established. A
sue and the second concerns the identity of the person to be sued.
Proper Claimant
The first question is whether the name in which an action may be brought falls to be determined
exclusively.by the law of the forum on the ground that it is a mere matter of procedure. It is a
question that arises principally where the claimant is not the original owner of the subject matter
of the dispute, but has acquired it derivatively from the original owner, as for instance, in the
case of assignment of a debt or other intangible movable. In those cases where English Jaw
requires the assignee,to
,
_sue in the name of the been said ( Wolf v. Oxholm
assignor, it has
( 1817)) and indeed on one occasion held (Jeffery v. M ’taggart (1817)) that the requirement must
be observed in an action in this country ( England ), even though it is not necessary by the law
governing the transaction.
But on principle it is doubtful whether every rule that regulates the name in which an action must
be brought is merely procedural in character. Cheshire expresses his view that if for instance,
English law still regarded a contractual right as so essentially personal as to be actionable only at
_ .
the suit of the original contracting party, it would surelybenegationofiustice to enforce such a ,
rule; indiscriminately as being one of procedure,.and thus to defeat a claimant who had acquired a
contractual right derivatively under some legal system that regarded the transaction as valid.
One problem which can arise in determining who is a proper claimant is whether a person will be
permitted to sue in England in a representative capacity, relying on an appointment made under
•
foreign law.
Ltd 11980 013 1991
Facts: The plaintiff was Lebanese. Because his brother had disappeared , he caused himself jo be
aggoimecLb a.courl in Beirut as his brother s judjciaLadmjnjstrator”. lcuhaLcapacity, he
^ ’ “ _
- _
sought to bring an action in F ngland on coiitract made between his brother and the defendants.
Justice Parker observed that, in such cases, there are conflicting principles to be examined: first,
that these courts should as a matter of comity, give effect to curator’s or tuteur’s right under
foreign law to sue in his own name; secondly, that municipal procedure should be applied . The
first principle prevails in the case of bankruptcy, receivership and the curatorsliip of the mentally
ill ; whilst the second holds sway in respect of an administrator of the property of a deceased or
absent person.
options of the plaintiff either in the name of the firm and by or againsl _all _ the partners
individually. ( As per 69 of the Indian Partnership Act, 1932, a firm which is not duly registered
cannot sue). The same rule applies if a suit is filed against the individual partners of a foreign
firm .
>
3
3
3
3
3
3
3
3
-3
'
<By 9ther fact. The onus licsonTlic party who wishes to rely on a foreign law. He must state <
it in his pleadings and prove it at the trial by adducing evidence. If he docs not do so, the <
court will decide the case as it were a purely domestic ease.
<
As a rule, appellate courts will not disturb the findings of the fact by the trial judge, but this is
not so when the finding relates to a question of foreign law. I
Parkasho v. Singh (1968)- In this ease the erroneous decision given by the trial court on a
point of foreign law was reversed and it
was stated , “although the foreign law is a question of
Joel, it ;s a question ofjgct of peculiar kind. ”
_
Under English Law,.foreign law is treated as a question of fact of which the jiyige has no
judicial knowledge. It must be proved by •appropriate evidence*, i.e., by property qualified,
wjtnegg.’ An exception, however, applies in relation to Scottish Law. ( it docs not have to be
proved in the House of Lords, as the common forum of both England and Scotland, for their
lordship have judicial knowledge of Scottish Law)( Now the Supreme Court of England is
established ). In this context it is also to be mentioned here the British Law Ascertainment
Act,1859. As per this act ifthe foreign law involvedis ihe.law of “some british territory”, the
,
courLlias- the- powcr of ascertaining that law and applying it, although it has not been pleaded
orproved by.the parties.
Under English Law, foreignjaw must be proved by expert evidence. It cannot be proved by
.
simply placing the text of the foreign law before the court or by citing foreign decisions or
foreign text books. These can be done only by an expert witness, as part of his evidence, and
subject to the cross examination by the opposite party. The court can evaluate and interpret
the text of a foreign law or a foreign decision or the opinion of an academician only with the
assistance of an expert giving evidence before the court. When the judgements in the foreign
country in question conflict and there is no decision regarded as binding in that country, the
English court has to choose between them ( Re Duke of Wellington (1947) Ch.506).
fVho is competent witness?
No clear cut answer can be found from thejmglislid&cisions . The general principle is that r.o
person! is a competent witness unless he is a practising lawyer in the particular legal system
or unless he follows a calling in which he must necessarily acquire a practical working
knowledge of the foreign law . Practical experience would be a sufficient qualification. Thus,
not only a foreign judge or legal practitioner would be a competent witness, but also such
persons as anAmbassador and Embassy official , a reader in law, a Roman Catholic.Bishop
,
provides Ihj\Lany official publication of a foreign country containing its laws or law reports
_ _
^ ^ j
adinittcd in cyidcncc. Section 45 providcs-thaLexpcrt evidence can be led on what Jhe
_
I? £OJftW..in.a givcn cnscjs; Under section 45, a person who is “specially skilled ” can be
give expert evidence on a subject. The flexibility of the language gives considerable latitude
to a court to decide who can be regarded as an expert. Under section 78, “ public documents”
include the legislative acts of any country. Under section 81, a court can presume to be
genuine official copies of British Parliamentary Statutes.
In a matter under section 45 of the Arbitration and Conciliation Act 1996, theJSupreme Court
held that Japanese lawxouldnoLbe.proved.bv affidavit eyjdencefcand evidencejhouldbie led ^
as in a trial. (Shin Etsu Chemical Co. Ltd v Aksh Optifibre Ltd, AIR 2005 SC 3766).
Both High Courts and the Supreme Court have often referred to decisions of English,
Australian.ancLAmerican Courts to set out the positions in the laws in those countries; this
has been done not in eases where foreign law was required to be proved as a fact in a private
dispute but as such decisions were of persuasive authority in applying Indian Law. Generally
this has been done in constitutional law and administrative law cases, and has also been done
in cases where bur statutes are based on the common law, or are similar to English statutes.
No such cases raise any issues of Conflict of Laws, jf a question of conflict of laws does
arise, expert evidence is to be produced . (Technip S.A v. SMS Holding (Pvt.) Ltd
. (2005) 5
SCC 465.)
1»
>
I
In any system of conflict of laws including Indian system, the courts retain an overriding
power to_ refuse to enforce, and sometimes even refuse to recognise, rights acquired under
foreign law on grounds of public policy. The scope and extent of exclusion of foreign la w
varies from country to country. In countries following the constitutional system of law what
is excluded is what offends the domestic law notion of public welfare by applying the
^
doctrine of ‘order public’. The scope of order public is wider than that of public policy in
English law. Probably because of English courts invariably apply English domestic law in
many types of family proceedings such as those involving divorce, maintenance or the care or
adoption of children. Thus, foreign law is inapplicable in many important departments of
family law and in continental European countries, it is frequently excluded on the grounds of
‘public policy’. The danger of this vague doctrine is that it may be interpreted to embrace
such a multitude of domestic rule as to provide of a fatally easy excuse for the application of
the law of the forum and thus to defeat the underlying purpose of private international law.
Tire analogues English doctrine, though less unruly is indeed all above suspicion in this
respect.
Summarily stated, it withholds all recognition from any foreign law or judgment which is
repugnant to the distinctive policy of the English law, and it refuses to enforce any foreign
law which is of .penal, revenue or against ‘order public’ law nature. Further more
foreign
in other circumstances,
expropriatory laws will in some circumstances, not be recognis and
ed
ry rules of the forum may be
although recognises will not be enforced. Finally the mandato
law is excluded.
applied, with the result that, to that extent a foreign
_
The nature and scope of the public policy doctrine
was fully examined in the case of Kuwait
It is an obvious principle that an act of sovereignty by one state cannot have any effect in the
territory of another state. The jpfliction. of penalty normally indicates the exercise of
sovereign power. Consequently, English Courts will not directly or indirectly enforce foreign
penal laws. It is necessary to bear in mind that a penal law in this context means a criminal
law imposing a penalty recoverable at the instance of a state or its duly authorised agent and
in the matter of classification, it is for the English court to decide according to its own
interpretation whether the foreign law in question is penal or not in character. It is not bound
by any different interpretation which may be placed by the; foreign law.
In this case the rule ‘the courts do not recognise penal law * was explained. The rule is ...
founded on the well recognised principle that crimes including all breaches of public law
punishable bv.pecuniary or otherwise, at the instance of the state govt , are local in this sense
that they are only cognisable jmd punishable in the country where they were committed.
Accordingly no proceeding, even in the shape of civilsuit, which has for its object the
enforcement by the state, whether directly or indirectly, of punishment imposed for such
breaches by the lex fori , ought to be admitted in the courts of another country.
Although this principle is almost universally accepted , modem state practice requires some
qualification of its more expansive formulations. There are a growing number of international
treaties under which states including UK, provide jnutual assistance in the conduct of
criminal prosecutions. For example, compulsory measures available under the laws of one
state may be exercised at the request of a foreign state to search and seize evidence or to
_ _ _ _
money .to the company.sued the defendant- for. the. recovery of. the.loan and obtained a
„
-
judgment. As the judgment remained unsatisfied, the plaintiff brought an action on it in
Ontario. The defence was that the New York law under which the New York judgment was
obtained was penal in nature and hence Ontario court could not enforce the judgment. In
support of this defence, reliance were placed on the fact that the New York Courts had
interpreted the above
^^ ^ ^ ^^ ^ ^
tute penql T e Priv ounci affimied he jmnciple that foreign
~
penal laws|are not bound by the view taken by foreign courts as to ~the~nature of law in
question. Whether the foreign law is penal ofeggt in character is 5»Mo be decided by the
English Court<,The Privy Council analysed the NewYork statute and held . that the statute was
not penal but remedial only.
Banco DeV
^ayayspon Alfonso De Borbon Austria
In this case the foreign law was considered as penal and was refused enforcement in England,
-
Facts the King of Spain deposited certain securities with the West Minister Bank in
London. The king was expelled and a new Spanish republican^ govt , decreed that all.his
^
^
properties and rights, were ever situated should be confisticated and seized for the benefit of
Spanish state. In pursuance of this decree an action was brought in an English court by a
nominee of the state to recover the security from a bank. The action was dismissed holding
the Spanish decree tp.be penal in character.
_
went on to discuss the wider points of the nature of the newzealnd statute. It was held that
_
ne\yzeland.statute.,was a penal law and therdbre would not be enforced in England The
^
claim was made by the attorney general on behalf of the state. The cause of action concerned
a public right. The preservation of historic article with the govt, and vindication of the right
was sought through forfeiture of the article without compensation. As already stated above
lord Denning expressed himself in different terms he regarded the newzeland statute as
coming within the category of public law rather than penal law.
In this case the decision of court of appeal was upheld on the narrow point of construction o f
statute.
'
Foreign revenue laws '"y ‘ '
.
Lord Mansfield stated in the case of the holsman v Jhonson 1775
No epuntry even take notice of the revenue laws of another. Since then it was assumed that
English courts will not enforce foreign revenue laws .in this case the court was not directly
concerned with the case of foreign power swing in English court to recove: revenue. Doubts
were raised as to whether the principle would be accepted by the higher court in the modem
conditions. All such doubts had been put at rest by the decision of the House of Eafi!r | n/
Gov. Of India v. Taylor 1955. uUhis case the Govt. Of India claimed from a liquidator in
England a large sum of money due as capital gain tax under the following circumstances. The
Delhi electric company limited was a company incorporated in England but carrying on
business in India. In 1947 the company sold its business to the govt, of India the sale price
_j
\vas >ay/to the comp. In India and the amount was remitted to England after a few days. 2
__
year after this the company went into voluntary liquidation in England Taylor was appointed
_ _
""
j .5 lac. Of rupee duc ' to GOl as capital gain tax on the sale of company bus .
,
. incss
,
dator rejected this claim. House of lord held that for the goi
~ .
It was contended that the
of exclusion of foreign laws properly
applied only on penal laws and it was wrong to
extend it to revenue laws further whatever may have
been the rule in the past , there is
necessity for modification in the ease of the country belonging to the commonwealth ,
particularly in the case of taxes similar to those imposed in England . These arguments were
not accepted by House of Lords. It was unanimously held that the English courts will not
enforce the revenue law of other country. Tax gathering is not a matter of contract but of
authority and administration a:; between the state and those within its jurisdiction and it is
settled principle that English courts refuse to enforce any claim which in their view is a
manifestation of a foreign state sovereign authority.
A foreign revenue law is a law requiring a non contractual payment of money to the state or
-
some department or sub division thereof. It includes income tax, capital gain tax, custoih
duty, death duty, local rates or council tax, compulsory contribution to a state insurance
scheme and a profits levy. English courts will not enforce foreign revenue laws either directly
or indirectly. Where no enforcement either direct or indirect arises foreign revenue laws arc
freely recognised in spite of Lord Mansfield claim.
^" •
Foreign Expropriatory legislation >
^
To what extent foreign laws of expropriatory nature will be recognised by English courts is a
question one will find discussed in public international laws. Such laws are not directed
against a particular person as in Don Alfonsos case, but are general in nature exploring all
private properties to the state .
In determining the effect of a foreign expropriatory legislation, the English judge will look
into three factors, namely
later brought to England and was there during litigation. This is thgjrositignjaken
in
But a foreign expropriatory law cai lot affect the ownership of properties in England at
the time of foreign legislation. I
Under a decree of nationalisation the society authorities seized plaintiffs timber which
,
was situated in Russia. Part of this timber was later brought to England and sold to the
defendant by a soviet agent. The plaintiff sued in England on the basis that the ownership
of the timber now in England was vested in him despite the Russian_ decree of
nationalisation. The court of Appeal rejected the plaintiff claim. Court, even where
In case of ‘ the rose mary case’ - Anglo Iranian Oil Co. V. Jaffrate 1953 1 WLR 246Jt
was held that the decision in Luther v. Sagor is not applicable toJthe confistication of the
properties belonging to an alien unless adequate compensation is paid.
£0 important that as a matter of construction or policy they must apply in any action
before a court, even where the issues are in privilege governed by a foreign law selected
by a choice of law rules. The statutory and EC rules on choice of law in respect of trusts,
contracts and torts all have rules providing for the application of the mandatory rules of
the forum.
applied, and i.e. they are negative concepts. However the effect of the application of
mjmdatoryjules j)f. EnglishJ aw.is that fl.foreign domestic law, which would otherwise
govern under choice of law rules, is hot applied . To that
extent application of mandatory
regarded as an exclusionary concent. At the same time and this brings out the
essentially different nature
concern is to apply the mandatory rules of a foreign country, rather than those of the
^
Court adopted the-same rule of English law.
.
L Renu Sagar case AIR 1994 SC 860
SAV
r
UCT 0 > L (L *
(
Indian Supreme Court has observed generally that.foreign revenue.laws would not be
,,
*•) ^ ^
(2) the effect of marriage on the proprietary rights of husband and wife; C:>J
i
(3) wills of movables and succession to movables;
Sr-O
(4) Jurisdiction in divorce and nullity of marriage , and to a certain extent
, legitimacy of children and adoption etc .
!
For the purpose of the above matters, England regards the concept of *vs>
domicile as the decisive factor. In contrast, civil law jurisdictions regard
nationality as the decisive factor to determine an individual’s personal law.
This will create problems of Renvoi !r>
2A For instance in Re O' Keefe ( 1940) , where Miss O' Keefe , a British subject
of Irish origin , died intestate and domiciled in Italy. By English law the
distribution of her estate, which consisted of movable property, was subject to
X\ \
the law of her domicile, i.e., Itaty By Italian lav/, however, this was subject to
the law of her nationality which was British. Accordingly , it was held that the
> only part of the British empire, to which she could be said to have belonged , ^35 )
> was the part from which she had originated , namely Ireland. Therefore, Renvoi
> applied and her estate was distributed according to the law of Ireland.
)
In order to circumvent this problem of conflict between nationality and
> domicile, th concent of Habitual Residence has been selected as the decisive
"
b
b
h ?
Cr
b A
_ _
fector to
_ _
ja\y in a number of international
conventions seeking to regulate issues of family law, in particular recognition of
divorces. An example of such conventions is the Hague Conventionjm Private
_
Il3ternational law which refers _ to habitual residence rather than domicile nr
nationality. Habitual Residence has also been used by the British Parliament in
various Acts, such as Sec 46(1) ( b) of the Family Law Act 1986 which provides
that a foreign divorce is recognized in England if it is effective under the law of
the country where it was obtained , and if at the date of the commencement of
the proceedings, either party to the marriage was habitually resident or
domiciled in , or was a national of that country
The concept of domicile is not uniform thorough out the world. To the
.
continental lawyer It means habitual residence , but in English Law it is
regarded as a person's permanent home. What this in fact means is not clear.
Lord Cranworth, in the case of Whicker v Hume (1858) , declined to clarify this
notion and said " if you do not understand your permanent home, I' m
afraid that no illustration drawn from foreign writers or foreign languages will
very much help you to it ".
\_ J "A person' sdomicile may be defined as meaning the country ( in the sense
territorial unit possessing its own system of law) in which he has his home and
a
intends toJive, .permanently. The law regards every personal as having
,
on him at
domicile, whether it be the domicile of origin which the law confers
2-
be present 's
intention to remain permanently , and both these elements must
before a new domicile can be acquired . If a person , having acquired
a domicile *
regards his
of choice, abandons it without acquiring a fresh one, the Jaw ^ acquired ,
of choice is
domicile of origin as having revived
_
until a fresh domicile
". %
_ D _
even though he may never in fact have returned to his domicile of origin
is the
%
There are three types of domicile, the domicile j6f origiri . that
domicile which a person acquires at birth; the domicile of Choice; which
person of full age acquires by residing in a country other than that of his
qr her
a
*%w
origin , with the intention of settling there permanently; and the domicile ^
of
i 3 *
t
-0
>
_
posthumous child , i.e., a child born after his or her father's death , derives his
o r her domicile of origin from that of the mother. As for the domicile of origin of
a foundling, this is derived from the country where he or she is found.
V3
Furthermore, a domicile of origin is the domicile acquired at birth and
not the domicile of dependence as at the date of reaching the age of majority
£ ( Henderson v Henderson ( 1967) .
Domicile of Choice
Scarman J examined the issue in the case of In the Estate of Fuld ( No3)
( 1968 ) and stated what has to be proved js no mere inclination arising from a
"r passing fancy or thrust upon by an external or temporary pressure, but an
3 intention freely formed to reside in a certain territory indefinitely . All the
^ ,
3t 4
1
!
matter not to be lightly inferred from slight indications or casual words’.
Scarman J ’s approach seems to be the preferred one, for it was endorsed by the
Court ' of Appeal in Brown V Brown ( 1982 ) and it is also the approach
recommended by the Law Commission Report No. 168 on the reform of the law
of domicile. ( Important proposals for the reform of the law of domicile made by
the Law Commission in 1987 reflecting in part reforms adopted in a number of
Commonwealth Countries overseas but unfortunately they were rejected by the
c\
o-
Cs
G
C
V
—
~
-
-
Government in 1996 for England and Wales.) In Scotland the law in relation to
the domicile of persons under the age of 16 years has been reformed (Family
; Law (Scotland) Act, 2006) .
I
Residence
!
! C*
It has been defined as ‘physical presence in that country.aS an.inhabilant of . it
-
.
( IRC v. Duchess of Portland , 1982 ) So, residence is more than mere physical <&S
presence and , therefore , does not cover the situation where, for example , nr*
presence in a particular country is for the purpose of holiday-making. A person
can acquire a domicile in a country, if he orjshe has the necessary intention ,
after residence for even part of a day. ( Miller v Teale ( 1954) 92 C.L.R 406) . The
1 length of residence is not important, in itselfj it only important as evidence of
intention. Thus an immigrant can acquire a domicile in a country immediately .
after arrival there. “It may be conceded that if the intention of permanently
residing in a place exists, residence in pursuance of that intention , however
short will establish a domicile” ( Bell v Kennedy) (1868) . In order to be resident
in a country a person need not own or rent a house there It is sufficient to live
in a hotel, ( Levene v IRC [1928] A.C. 217, Matlon v Matlon (1952 ) or in a house
of a friend , (Stone V Stone (1958) 1 W . L. R. 1287) , or even in a military
camp
( Willar v Willar , 1954 S.C.144) .
e-
£
s JU
IL
Scanned with CamScanner
margin of discretion as to whether the clement of illegality precludes the
acquisition of a domicile of choice ( Mark v Mark [2004 J 3 W .L.R . 64 ) .
established -in that country was his."Chief residence! ( Plummer v IRC (1988) ). It
.
Intention
_
The intention which is required for the acquisition of a domicile of choice (often
referred to as the animus manendi) is the intention to_ reside permanently or for
an unlimited timeJn.a.particular_country. “It must be residence fixed not for
<3 _
a limited period or particular purpose, but general and indefinite in its future
contemplation “ (Udny v Udny (1869 ) ) . If a person intends to reside in a
countrv for a fixed period, the intention necessary to acquire a domicile there is
lacking, however long the fixed period may be. (Attorney General v Rowe
( 1862 )) . The same is true when a person intends to reside in a country for an
,
I
indefinite time (eg., Until passing an examination) but clearly intends to leave
the country at some time (Jopp v Wood ( 1865) ) .
What may be deduced form these principles is that the burden of proving
a. change of domicile is an extremely heavy one . Indeed this is so, if one
examines two leading House of Lords decisions, namely Winans v Attorney
General ( 1904 ) and Ramsay v Liverpool Royal Infirmary (1930) , where it
—I 3
-—
£
»
-
-
appears that there is almost an irrebuttable presumption against a change of
domicile.
r 7
>
&
^Sankaran Govindan v Lakshmi Bharathi ( AIR
. 1964 Kerala 244 , Appeal
AIR 1974 SC1964 )
establish that the propositus chose the English domicile and decided to make
England his . home . On appeal , the Supreme Court held that the
permanent
propositus acquired an English domicile on the ground that the intention of the
propositus was not to return to India and the letters written by him were not
containing a real expression . Kerala High Court relied on those letters and held
that he had not acquired the English domicile .
:
particular person had a domicile in India. *% 1
Abdul Samad v State Of West Bengal (AIR 1973 SC 505)
P
In This case Supreme Court observed that the tenn domicile used in Article 5 e
! ^
his
*0
meant the place which a person had fixed as habitation for himself and s
family not for a mere special and temporary purpose but with a present P
intention of making it his permanent home. Vo o
r
Domicile and Citizenship b
> >
> »
4
13 3 t
It has also to be borne in mind that in India, the Indian Succession Act
1925 lays down detailed provisions relating to domicile, and though these
provisions do not apply to either Hindus and Muslims, and not only apply ,
even in the case of Christians and Parsis if a question arises as to the
^ r
succession to the movables of such persons, courts have frequently applied the
provisions or the principles incorporated in the provisions, which were based
on the Common Law, in other contexts. Sections 6 to 18 lay down detailed
rules relating to domicile , and they, or rather , the principles on which they are
based , have been applied by Indian Courts even to Hindus and Muslims.
Formally in English law there were 3 classes of dependent persons for the
-
purposes of domicile infants, lunatics and marriedjwomen. The last category ,
married woraen have now been free^from the dependent status after the
^
Domicile and Matrimonial Proceedings Act, 1973.
This will be the domicile of his father if born during the father’s life time and
child
the child is legitimate. If illegitimate or born after thejather ’s death the
gets the domicile of his mother. A foundling gets the domicile of
origin of the.
, incapable of
country whejre it is found.. During the minority of the child it is
of the person on
acquiring a domicile of choice, but will be having the domicile
of dependence. In a vast
whom it is legally dependent. This is the domicile .
and the domicile of origin may be
majority of cases, the domicile of dependence
be different . If the father of a minor
the same, but it is possible that these may
- -%
•C, -
vXfe
rrv
. 1°
—^
' ^
of origin
-
that the domicile of the father and mother were different at the time of its birth .
_
countries. This is often expressed as absolute rule , so that the unity cannot be
disrupted by the will of the father . This rule of unity of domicile was retained
even in cases where the parents were separated and were in different countries , C.
the child living with the mother. In such cases the minor’s domicile of
dependence changes with the change in his father’s domicile creating a lot of
hardships. To avoid this, the_ Domicile and Matrimonial Proceedings Act of
1973 has introduced changes in the above doctrine of Unity of domicile * >
According to the Act where thejiarents are live , but living separate the child ’s
_
domicile will be that of the mother and no home with the father . But the child
li
What is the effect of father’s death during the minority of the child?
- The child acquires upon the death of his father , the domicile of his
mother. Any new domicile which is subsequently acquired by the
mother is
of
automatically communicated to the minor child as the new domicile
c. dependence. It is necessary to affirm once again that the changes of domiciles
of the parent which are communicated to the minor child have nothing
to do
Lunatics
for the
disordered person. Precisely which persons are “ mentally disordered ”
.
purpose is quite unclear The cases were under long obsolete rules
as to
, the special
“ lunatics” and had the Law Commission’s proposals been accepted
to form the intention
rules would apply to an adult lacking the capacity
IU
subject to vigorous criticism. Lord Deving characterized this rule as ‘‘the last
barbarous relic of a wife ’s servitude” (Gray v Formosa ( 1963)) .
This rule has been abolished in England by section 1 of the Domicile and
,
1 4
13 *i
*
Scanned with CamScanner
law rules. In
Indian decisions have also generally followed the common
been held that
State of Bihar v . kumar Amar Singh ( AIR 1955 SC 282 ) , it has
had migrated to
the domicile of a wife remained Indian even though she
.Y v venkata
Pakistan , as her husband . remained in India. In Narasimharao
criticized the
lakshm i . Y , ( 1991 ) 3 SCC 451 ) the Supreme Court has severely
described it as a
common law rule about the domicile of married woman and
tyrannical and servile rule.
IH
J|
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JURISDICTION OF COURTS AND FOREIGN JUDGMENTS
Old rules
Where the defendant is not domiciled within the EEC / EFTA but present in
England , then jurisdiction in personam is assumed when the writ is served
on his person in case in
case of a corporation , or either on the individual partner present in England
1 or on the partnership firm in case of partnership. Where the defendant is
not present in England , the English court has [ power to hear the case if he
voluntarily submits to the jurisdiction , or if the plaintiff obtains leave to
_
serve the writ on him outside th£-iurisdiction und < the
rules of the Supreme Court.
v-2
Order 11 R - 1( 1 ) provides for a multiplicity of instances under which leave of
! the court may be obtained . The burden is on the plaintiff to show that the
dispute comes under any one of the heads provided in reference to an
individual, a writ maybe served on any individual who is present in England,
t 3
i
Corporations
corporationjg
By virtue of Sec- 691 and 725 of the Company ’s Act 1985, a
deemed present in England for the p\irpose of serving a writ
in three
situations:
only carries
• A company registered in England is present here even if it
on business abroad (S.725)
• If the company is incorporated outside England but has a place of
business here (S.691)
T*
3
reason the writ cannot be served , the writ mavbe served on tine
^korfiiJ
South India Shipping
(1985)
Corporation limited v. Export Import Bank of
against the defendant bank which was incnrpnrnted in korea where its
main business was conducted . However, the bank rented an officg_Jn
London for the purposes of gathering information and maintaining
Accordingly the defendant was duly served with the wrk for it had
established a place of business here and it was immaterial that the
defendant did not conclude any banking transactions from the London office
nor has banking dealings with the general public.
Where the (defendant is domicileWithin the EEC / EFTA , the English court
must ignore the traditional rules and assume jurisdiction in accordance
with the provisions of either the Brussels Convention or the Lugano
Convention .
*
.
come into operation. The effect of such basis of jurisdiction is that the
designated courts of the member state will have exclusive jurisdiction and
2
*
»
2
the courts of the defendant will have to decline jurisdiction . Such exclusive
jurisdiction arnlies in relation to issues of immovable property , companies
and associations, intellectual property , enforcement of iudgcmeuts ^ ctc.
•*>
- 3
Additionally and subject to Art. 16, further provisions for exclusive
jurisdiction apply in relation to jurisdiction agreements and defendant’s
submission to the jurisdiction of a member state other than that of his
domicile.
By virtue of Art .
IS of the convention, the courts of a contracting state
before whom a defendant enters an appearance shall have jurisdiction . This
t 3
is so, except where his appearance was solely to contest the jurisdiction , or
where aunther . mnrt has exclusive jurisdiction under Art . 16. However, by
only mentioning Art. 16, Art. 18 seems to prevail over an agreement
^3 conferring jurisdiction under Art. 17.
-3
*3
Jurisdiction within UK
^
It may be concluded that the rules relating to jurisdiction are numerous.
There are four different sets of rules under the Brussels / Lugano system , i .e.
the rules contained in the Brussels I regulation , the EC / Denmark
t agreement , the Brussels convention and the Lugano Convention . There are
also rules contained in a modified version of Brussels I regulation ( the
modified regulation ) and traditional English rules on jurisdiction. The rules
can be classified broadly as under-
(a) The matter is within the scope of the Regulation (_ a civil and
.
commerciaLmattsi) ; and -
( b) The defendant is domiciled in a European Community Member State,
apart fir* Denmark (i.e. in Austria, Belgium, The Czech Republic,
Finland , France, Hungary, Greece , Ireland , Italy, Portugal, Romania ,
I Netherlands, Spain , Sweden and UK). And even if the defendant is not
_ _
sn domiciled , certain provisions in the regulation will still apply1 eg. _
where the case involves title.tCLiandin.a member state cr where there
,
— — ——
agreement conferring . jurisdiction on the courts of Denmark. The
EC / Denmark agreement applies by international law the provisions of
the Brussels I Regulation , with minor amendments.
-
Convention and arp. excluded from-the- Regulatiom The territories in
.
(a) The matter is within the scope of the convention ( a civil and
commercial matter) ; and
or
( b) The defendant is domiciled in an EFTX state (i.e. Ireland, Nonvay
, certain
Switzerland ) . Even if the defendant is not _ so„ domiciled
S3
so. This power rnayb/eyr ^
invoked on the grounds of the forum non
mnvenience . lis albi penden s or exclusive jurisdiction agreements .
~ ~ (3)
(Section 49 , 3, Supreme Court Act,
1981 ) ^
ST
Stays of English proceedings
*u
/o W"
will proceed
If the defendant has been properly served the ^English court
with a case unless the defendant proves that England is not the natural
forum and that there is another available forum which is clearly and V*
distinctlymore appropriate for the trial of the action . In such a case the v
court will exercise its discretion to stay the proceedings.
r
In order for a stay to be granted the defendant has to base his reqnpct ^
pne of three grounds : r
^
r
• Firstly, l commenced in a
-
e
‘•Nsi*
The doctrine of forum non convenience whilst it has been applied in
_ _
SCQtland and_ in the United States for a number of years has nat h£en. _ _
accepted in England until recently. The English discretion to stay is _ no.w
e.
indistinguishable from the Scottish doctrine of forum non convenience.
dr
gSpiliada Maritime Corporation v. Cansulex Ltd /. (
. zz
The law was exhaustively considered and restated by the House of Lords in
, 3 this case , where (ord Gofpkiving the unanimous judgment of the law lords
set out a number of principles on which the discretion should be exercised .
Mere, it is essential to note that the decision on the exercise of the discretion
is essentially one for the judge at the first instance, and an appellate court
should not interfere merely because it would give different weight to the
factors involved .
_
The basic principle is that a staY-WilLQnlyj3£.grant£d.on the.ground of forum
non convenience where the^court-iS- satisfied that there.ia_-Some other
available forum having jurisdiction which is the appropriate; forum for trial
,
of the action , that is in which the case maybe tried more suitably for the
«
interests of all the parties 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. Lord Goff , however, did lay down a
number of other subordinate principles - which have br;en frequently followed .
He referred to a two stage enquiry. The first stage is concerned with whether
^
^
^
Harrods ( Buenos Aires) Ltd ( 199 ljjf
In tliis case an action was brought for inter alia , the winding up of an
C.
Cs
c.
English incorporated _CQmpany. The company’s registered office was in
Ss
England but its business was carried on , and it was managed and controlled
. _
exclusively in Argentina The Brussels conyention applied by virtue of the
Vs
L
Scanned with CamScanner
1
only between convention countries the court held that it retained its
discretion under section 49 of the 1982 net to stay or dismiss the actions on
the ground of forum non conccnvicns where the more appropriate forum
was in a non contracting state. This decision has been widely criticized for
having misinterpreted the conventiOh and _ for creating uncertainty in the
law. (Cheshire and North , Private International Law )
In some instances proceedings between the same parties arising out of the
same dispute are simultaneously pending in the English court and the
_ _
courts of another country. This is referred to as a case for lis alibi pendens.
Under the (traditional rules ) the English courLjrnaybHIasked_e[therj^by the
_
defendant to the English proceedingS-tQ-Stav the- action in England , or by
_
the plaintiff to the English proceedings to grant aniniunctipniIgstraining.tbe
foreign proceedings.
Where the defendant to the English proceedings applies for a stay on the
ground of lis alibi pendens, the English court, in addition to forum non
conveniens must take into account
more expense and inconvenience tp the_ parties and may also lead to two
conflicting judgments.
ft
In cases where the concurrent proceedings are in the courts of the united
ft
ft _
kingdom on one hand and the courts of another EC or EFTA state on the
- -
* ^
ground of forum non conveniens.on similar
- -
other, the ew rules)give no discretion to.a courMo stay proceedingsjQii.the
grounds.(Article- 21 as redrafted
^
I in thc Lugano and San Sabastian conventions provides that in such cases “
any court other than the court first seized shall of its own motion stay its
proceedings. until such time as the jurisdiction of the court first seized is
* established ”. Once the jurisdiction is established M any court other than the
court first seized shall declinejurisdiction in favour of that court”. It should
be noted that while article 21 is limited to concurrent proceedings in
^
T ~ ^ separate
t< eth & from
risk of irreconcilable judgments resulting
^
proceedings.
have
convention applies where two contracting states
^ _
- 1 iansdlfrllPn fryer the Jjame jca.se. The court first seized has
jurisdiction .
action to the English court then the proceedings will normally be stayed for
the English court will not in general allow a breach of contract. This is so
even if part of the a reement between the parties is void .
^^ ^^
Trendtex Trading Coloration v. Credit Suisjjgf (1981)
Where an assignment of a cause of action took,place in Switzerland and tine
agreement included an exclusive jurisdiction
_
clause in favour of the Swiss
courts, the house of lords granted a stay and.. held - that. although an
_ „
k
^
fa jlvlackender v. Feldi^^ l 967)
)
>
.
v
7" »
-
k
.
V
k
.>
»
and was exclusively governed by Belgian law . Some diamonds were lost in
Italy and the plaintiffs refused ' to pay and brought an action in the English
'
Italy ,
court claiming that the defendant had smuggled the diamonds into
and that the contract was void
ion ;e . Accordingly , the jurisdiction clause was also void . The
court of appeal applied English domestic law and formed that
non -
'
the
disclosure rendered a contract voidable and not void ab initio . Therefore
jurisdiction clause was valid and a stay was granted ..
^
Hamed El Chiaty v . Thomas Cook Ltc ( 1992)
^
It seems that an oral agreement on jurisdiction is as effective
one .
as a written
-Jt
nt agreed to
England,, to construct a cruise ship. In return the defenda
finance the vessel of the ship and to charter it for use
on their package
~
whereby it was agmed_that
tours. A series of written contracts were made
were _<dlentJaa tn the
the proper law of the contract was Egyptian , hnt they
during
choice of jurisdiction . The defendants claimed , however , that
_
negotiations
— the—parties_ hacL ocally
. _ agreed that any djgmiteLS shpuld_Jbe
,
-T ,
1
'
)
Where the parties _ _
have agreed to refer their disputes .to.-the-courtsjof
' a
Contracting state then their agreement is governed _by Article _ -17 which was} C;
of which the parties are on ought to have heen aware and which in
.
_
such trade or commerce is widelv known to and regularly observed by
—
of the type involved particular trade or
,
*c
commerce concerned ( the words after aware in courts were added by
the San Sabastian and Lugano conventions) . Similar provisions are
made for jurisdiction clauses in relation to trust instruments
under
article 17(2) . <
Article 1 (3) imposes two limitations on the
^ ,
tha
^ _
convention to the effect
jumdictionagreement shall have no legal force if i
_ _ r r t to . -. - -
^wordg ^
exclude the coj ts contm
^ g£
by^ vntuejifarticlqj
states hjgh haveexclusive jurisdtohon
nature. Second ^ ln the
limitation
, article 16 is of an
V
applies when thejurisdictign
over writing
-X agreementJ
_
contrary to provisions of article 12 or £
article i * In
agreement shall have no legal such cases, the
force.
a . .
individual contract ofiemplr yment This is a new qualification introduced
* by the San Sabastian convention and Lugano convention , but alas in
legal
slightly different terms. The agreement on iurisdiction arilLQnly- have..
-
*0
in
court of
rrO 5 (1) . The
the defendants * domicile or those courts specified in article
*3 latter alternative is only available under the san Sabastian
convention.
4 of the civil
A similar version article 17 contained in schedule
- ^3
r
cases where the
jurisdiction and judgments act 19S2, which deals with
ent that the
defendan t is domiciled within the UK omits the requirem
3
jurisdiction agreement must be in writing.
«
4 1
.
Due to the UK’s accession to both the Brussels and Lugano conventions,
there are currently two sets of rules in relation. to re <
— .
rendered outside the states, then the traditional common law rules, as
_
amended and reinforced by statute, would apply.
%
Before moving on to examine both sets of rules it is essential to know the
distinction between recognition and enforcement.
s,
- _ ^ — -^
Whilst a foreign judgment must be recognized before it can be
enforced , not e_verVL recognized judgmen.t n ed to he nfarced.
.
Recognition simply means that the English courts take note of the
1»
Since 1982 , a plaintiff who has obtained a foreign judgment for a debt
can only bring an action in England for the debt and can no longer
bring fresh proceedings on the original cause of action . A plaintiff
seeking to enforce a foreign judgment in England may either sue on
the obligation created by the judgment , or plead the judgment Res
Judicata in proceedings which raise the same issue.
Under the_ J dmjnistration of justice act 1920)_a.person yho obtained, a
^ _
judgment in any part of the commonwealth may apply to the high
_
court to have the judgment registered . Registration is however,
^
discretionary.
_ _ __
Under the (foreign judgments ; ( reciprocal
registration oLa-foreign ,
!1
judgment in England is
^nforcements) act 193
^
as of right _and__ not
discretionary, and the successful litigant can make his application at
any time within six years.
-X
, _ Requirementsunder the old rules:
The foreign court must have been jurisdictionally competent to try the
action. Competence is tested in the context of residence of the
defendant in, and / or his submission to, the foreign court.
Where the plaintiff seeks enforcement at common law or under the
1933 act rather than mere recognition , the judgment must be for a
fixed sum of money , final and conclusive and not rendered in matters
^
of foreign revenue, penal or other public laws, provided that it is not
inconsistence with the provisions of the protection of Trading Interests
Act , 1980. One main distinguishing feature , however, under the 1920
act is that the judgment must have been rendered by a superior COUJT *
Defences: ,
injuncf _ ,
defendant is dnmir.iled _ in _ a contracting-state , including
. —
etc and provided that the
specific performance, writs of executions,
_
jUiigIJient-was nQtmade ex parte, ^
_
relation to enforcement, however^ s] lL udgmsnt-musl
_
beenforced
^^
application of any interested
in another contracting state when , on the
party , JLt has bPfm declared enforceable there .
^
stage process . ( Firs the plaintiff.makes. an ex parte application for an
order_ of _enforcement. At this stage , the defendant _does_ not have. the
right to be jieard . (Secondly} once the judgment is authorized , notice of
registration is served on the defendant who has right to appeal .
.
Defences
2.7.-& 28 qf_ thg Brussels convention provide for a number of
_
ences 2_if qny pf_tliein_is_ established , IhenJhe judgment, will not be
j
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—^
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In India the Code of Civil Procedure 1903 contains detailed provisiwsja jng do asio3he-Il P
>
court has, or docs not have jurisdiction. It is not, therefore, absolutely necessary to consider the
rules at common law, as applied in England. A reference is, however, made to these rules, where
*7
appropriate, as the provisions of the Code are based on the Common Law and as many Indian
decisions refers to the decisions of English Courts.
Issues pertaining to Conflict of Laws arise in the comparatively few cases in which a suit has a
,
^
foreign element, namely, whether and when foreigners and foreign corporations can sue, or be
sued in an Indian court, and who enjoy immunity from suits.
_
A question which also arises in a situation when an Indian court hayinsjurisdiction will decline iI *G
to exercise it, for example, if parties have, under their contract agreed that all fePtitgs between
V
them will be resolved by arbitration, or that .
suit which may be filed inus . be filed in a
any i v
specific foreign court There are also occasions when a court may conclude that in the T*
circumstances of that particular case, the dispute should be resolved in a foreign court by
applying the rule known as the forum non conveniens rule.
The only persons who cannot adopt proceeding in an English Court are enemy
.
aliens In India
the position
^
is regulated by Section 8?) of CPC 1908, which is based on the principles
of
.
Common Law Alien enemies residing in India or outside India have to take _
the pennission from
.
the Government of India to file a suit The explanation to
the section provides that every person
residing in foreign country the government
of which is at war with India, and
carrying on
business.in.that.country wilhouta license from the Government of
India is to be deemed, for the
purpose of this section, to be arTalien
^ enemy?) An alien enemy
Because, section 83 only bans alien enemies from
can^however defend a suit.
invoking the jurisdiction of the
court, and
d* -
there is no provision in the Code which bans ^
such persons from defendin
g suits filed against
I them.
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-*
.
« I
I _ J
X%
What has to be considered is whether the plaintiff was an alien enemy when the suit was
instituted, and if he.was. not, the suit is maintainable and can be heard when if he.subsequently
b* becomes an enemy alien.f Prern Pratap v. Jagat Pratap Kunwar AIR 1944 All 97, Feroza Begum
v. Dewan Daulat Rai Kapoor AIR1975 Del 1.)
If a plaintiff becomes an enemy alien during the pendency of the suit and his property vested in
.
the custodian of-Enemy Property, the suit did not abate (S.N.Banerjee v. B.C. Chakraborty AIR
1976 Cal 267). An enemy alien who is pennittgd by.thejGovernment of India to stay in India can
file a suit ( Angelina Reiffsteck v. Joseph George Reijfsteck (1917) ILR 39 All 377).
courts of other countries. In this regard the following are International Conventions:
r* a) United Nations Convention on Privileges and Immunity of the United Nations (1946).
b) Vienna Convention on Diplomatic Relations (1946).
These Conventions provide for immunity to the United Nations and its agencies and diplomats.
In India the question is governed entirely by statutes, namely, S. 86 of the CPC (1908), the
United Nations (Privilege and Immunities) Act, 1947 and the Diplomatic Relations (Vienna
Convention) Act, 1972. The 1947 Act confers immunity from suits to the United Nations and its
agencies such as the World Health Organization (WHO) and some of its personnel (in respect of
official acts). Under the Diplomatic Relations (Vienna Convention) Act, 1972 gives statutory
_
effect in India to the Convention, under which specified diplomats eniov immunity from suits .in
India.
The principle provision is, however, S. 86 of the CPC 1908, which enacts the principles of ,
_
Provided that person may, as a tenant of immovable property, sue without
^
aforesaid a foreign statefrom which he holds or claims to hold the property.’
such consent as
in granting
S. 86(2 ) sets out the factors to be taken into consideration by the Central Government
nodecrce can
consent .S. 86(3) provides that except with the consent of the Central Goyemment^ ^
I conferredtoruler s
be executed.against the prqperty of any foreign state^The same immunity is
,
Suits by and against mlers of a foreign state should be in the name of the
. . 87).
foreign state (S
the person
‘Foreign state’ means a state recognized by the Central Government and ‘ruler’ means
that a
so recognized by the central Government; and a court must take judicial notice of the facts
.).
foreign state or the ruler, has or has not, been recognized by the Central Government (S. 87-A
Section 86 shall not apply in cases of application of special enactments like .Carriage by Air Act
1972.
I
I ^ movable property or the partition of immovable property, or relating to the mortgage of such
property, or relating to the mortgage of such property, or for wrom isjo such property, can be
--
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_.
•
filed in.the courtjy,jthinjyjioscJurisdiction the property is situated. Property in this :section means
Lt* property situated in India .
L The only exception to this rule, which may have the effect of enabling a suit to be filed in respect
UP* of foreign immovable property, js in cases.where a person holds propertyon behalf of another,
H P* and relief can be obtained through the personal nhedjence of the defendant . The suit can be filed
J2* in the court within whose jurisdiction the property is situated , or the defendant actually and
voluntarily resides or carries on business or personally works for gain.
All other suits can be filed within whose jurisdiction, the defendant or some of the defendants
actually and voluntarily reside or carry on business or personallyjwork for gain, or the cause of
If one or more of the defendants do not reside or carry on business within jurisdiction, the suit
>
_
can only be filed . against such .defendants either _ if the court grants leave or such defendant
L
E*
F*
,
L Corporations
l. A corporation is deemed to cany on business at its sole or principle office in India, or in respect
of a cause of action arising in any place where it has a subordinate office at such place.
-nr
t
rf
TS ** A company incorporated outside India which has established a palace of business in India is
required tn file with the Registrar of Companies, the name of a person and address where process
can be served on it, and service can beeffected on such person and at such place. {Section
592( l )(d)The Companies Act, 1956}
-
If. in applying these rules, if it is necessary toserve a defendant not withia the jurisdiction ofthe
rft
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Court, the provisions of the Code permit service outside such jurisdiction and even outside India
(QrderV CPCpService abroad can - also be effected through a specified authority in a foreign
C
country if the country has been notified by the Central Government. (O V R 26A). Under
Sectio
.
_
issued by a
.
29 Code of Civil Procedure 1908, Indian Courts must effect service of summons
,. .
tft thp entries party lo ^
e
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Hggug Qpnvcntion on Service Abroad 1965 (Notification of the Central Government dated 28
November 2008) .
Special Provision - Jurisdiction
Apart from the Code of Civil Procedure 1908, certain statutes enact special rules relating to
jurisdiction in specified cases. Such special provisions relate to admiralty matters, international 4
J
i
carriage by air and matrimonial matters.
_
the successors of the old Supreme Court in these cities, and which exercised original civil
jurisdiction, conferred on those High Courts the _ admir.altyJurkdictiQn in.rem _ exercisedby
L i
i English Court of Admiralty.
The question whether at present High Courts possess admiralty jurisdiction has now been
concluded by decision of Superme Court in MV Elisabeth Vs. Hanvan Investment and Trading
_ _
Pvt. Ltd. Goa (AIR 1993 SC 1014), which held that alLHigll-Cflurts-in India were Superipr
-
b
Courts of Record having original and appellate jurisdiction, and have.inherent and plenary
,
powers. It held that “Unless expressly or impliedly barred, and subject to the appellate or
discretionary jurisdiction of this Court, the High Courts have unlimited jurisdiction, including the c
.
jurisdiction to determine their own powers ” The Court relied upon its earlier judgment, Narcsh L
Shridhana Mirajakar V State of Maharashtra (AIR 1967 SC 17). The mode of.proceeding in
admiralty matters is regulated by rules made by the Courts. The usuaLomeedure is to apply for
the assert of a ship, or its cargo and the proceeds of the sale of a ship or cargo, within the
; jurisdiction of the Court,
b
b-
i
Convention.
An action for damages against a carrier has to be filed at the option of the plaintiff either where
the carrier is ordinarily resident or has his principal place of business orJiasjarLcstablishment
=<* .
where the contract was made, or at the place of destination If there has been a successive
,
carriage, unless the first carrier has expressed assumed liability, the suit can only be filled against
the carrier who performed the carriage during which the accident delay occurred.
- a
Guardianship Proceedings
•* _
Under the Guardians and Wards Act 1890, an application fpr the.appointment.of a
guardian of
ily
the person of the minor can be made in the Court within whose jurisdiction the minor ordinar
* resides, and in the case of the appointment of the guardian of the property of minor
, either in the
Court within whose jurisdiction the property is situated or the minor resides (S.9 of
the Act). The
,3 Matrimonial Matters
s* In India different laws apply to marriage and divorce depending upon the religion
of the person,
nce with the provisions of
£ and Courts exercise jurisdiction to grant matrimonial relief in accorda
the applicable law.
In Oil and_ Na( ural Gas Commission v Western Co. of North America {AIR 1987 SC 674) jthe
/
_
i
__
SuflcnneCgurt restrained an American company_from proceeding witha suit Ttledinjjew York
s_eekin£ jQ.cpofirm awards made in India in a dispute governed by. Indian law2 as Indian Courts
_
had exclusive jurisdiction to consider the validity of such awards under the Arbitration Act 1940.
The Supcrme Court reiterated the position in a later judgment ( Modi Entertainment Network v
WSG Cricket Pte Ltd. AIR 2003 SC 1177) laid down the approach of the Court in such cases as
under:
“The essence of the ultimate objection is to enquire how best the interests of justice will be
served; whether grant of the auto suit injunction is necessary in the interests of justice.”
The basic approach of the Court is to ensure justice. The Court was considering a matter where
tile parties had agreed that disputes that may arise between them would be decided by a chosen
court and the observation, though made in that context, are, it is submitted, relevant in
determining when a Court ought to stay Indian proceedings on the ground of forum non
!
conveniens.
The court will grant anti-suit injunction bearing in mind the following principles: -
.
1 The defendant against whom injunction is sought, must be amenable to the personal
.
2. If the injunction is declined, the ends.of justice would be defeated and injustice would be
.
perpetrated; and
_ _
3. T]ie principje of. comity- respectjbr the court in„which. the. commencement or
, , ,
fc;
continuance of action/ proceeding is sought.to be restrained- must be borne in mind
4. In a case where more forums than one are available, thej:QurtJii _exereise of its discretion
IIi
io^grant .anti-suit . injunction^wilLexaipine as to which is
(forum conveniens) having regard to the convenience of
_
the more _appropriate forum -
the parties and may grant anti -
:
!
S-uit injunction in regard to the proceedmgs
.which are oppressive or vevato or .. *
No question can arise of exercising the forum non conveniens principle can arise unless the
^
necessary facts arc properly pleaded. { Mayat(z (UK ) Ltd v Own s and Parties, Vessel MV
Fortune Express AIR 2006 SC 1828).
These rules laid downby.theJSupremjeJIfourt after considering the decisions in England and
other Common Law Countries arc the rules that Indian Courts will apply_in bqth fqrumjton
-
Conveniens and in anti suit injunction situations.
As far as cases where parties have agreed that any disputes that may arise between them will be
resolved by the courts of a particular country are concerned, the law has now in India been
settled.
If the dispute relates to a contract, and the contract contains a clause providing that disputes that
may arise wiil be decided by a specified court, the approach of the court will depend on whether
such a specified court is specified as the court with exclusive jurisdiction or not.
In a number of cases, the High Courts held that even if the clause conferred exclusive
jurisdiction on a foreign court, the Indian court jetained
,
a discretion to decide whether it would
fc Mhe proceedings in India, and the factors
^^ it would consider were essentially whether the court
in India would , on balance, be a more or less Convenient court. In Modi
Entertainment Network
case, the Supreme Court has reviewed the law and the latest decisions in England and other
common law countries, and laid down the applicable principles.
fjuriticitio n clause . in a
contract ,.thej> asis
Where jurisdiction or a court is on the basis o . .
invoked .
-
The burden of establishing that the forum of choice is a forum non conveniens or the proceedings
therein are oppressive or vexatious, would teonjhe party so contending to aver and prove _ins
_
same. { Unique Pharmaceutical Laboratories Ltd v State Freight International Co (LLCO (2005)
6 Bom CR 829}.
The rules regarding jurisdiction clauses apply of course, only to disputes under the contract.
Proceedings under the MRTP Act, 1969, cannot be staved because of a jnricHirtinn c]ause in a
contract, which contract is alleged to offend the provisions of the Act. { Man Roland Drucki
machinen AG v Multicolour Offset Ltd AIR 2004 SC 3344}
_
Section J 3: A foreign judgment is conclnsivr 3s tQjmyjTiattcLdirectly decided in it between the
.
same •arties or parties claiming under them except where the judgment:
Section 44A
which can be executed are the.decrees of
_
Under this section, the decrees of foreign courts
superior courts of a ‘reciprocating territory as if it
* ‘ is the decree of the court executing the
temtQlies tifkd-10-be-as-such-by-the-Caitral
decree. ‘Reciprocating territodesLmeans. ^
in countries which on a reciprocal basis exsew
, te.
Gove rnme nt and mean s decree s of courts
Most count ries of the Comm onwe alth have been so notified. In
the decrees of Indian courts .
are available to resist
the
availa ble under sectio n!3
any such execution, the defences
execution_oLthS-decr££^
Sgglwnm oflndianEvulety;?
__
1 « 7 / Jtidnmenls iniguuc
^
It is onc of group of sections providing where a Judgm ent otacou rLis
rclevanLevidenccJn
I
r
, a judgment of
a competent
livil that is
Kmlings .
declares any person to be
court which confers upon any person nny legal character, or which
person but absolutely, such
entitled to nny specific thing, not as against any specified
character, or the title of any such
judgments arc relevant when the existence of any such legal
person to any such thing is in issue. >
.
This s«tion Jtasto be read with section 44 which
provides that ?judgmentjvould.not. be
deliveredjUvasjota,compctenLcgur> .
i
The only defences to a suit on a foreign judgment were those set out in section 13 and if .
.
those defences are not attracted, the judgment should be enforced ( Roshanlal Kuthalia v RB
Mohan Singh Oberoi AIR 1975 SC 824)
Law of Property
& H5
^^
t?/ V ere the immovable properly is situated outside the
Immovable property
EC / EFTA States, the old traditional rules apply to the effect
.
mat English courts have nolurisdiction to try a v action for the old rules
^
jurisdiction under the '
such cases, English courts have the power to try the action
5 =
though the property is situated oulci le Zr gland. *
c
Where the immovable ’ property is situated within the Jurisdiction imdur the
^
,
Here the question relates to the obligations of the parties under Validity of the
a contract, the object of which is to transfer immovable contract to transfer
property. immovable property
In relation to nT
variousways to the ^ nee
at a tort was held to have been
committed in the place where the goods ^
\
j
were manufactured,
^
In relation to( efamatiop,> the tort has been held to be
committed in the country where the statement was published.
^
As for fraudulent misrepresentation made by
^
instantaneous communications, the toit has been held to be
committed in the place where the message was received and
f
I
j
Yj
u.
acted upon.
In the context of inducing a preach of contract) the tort was
said to have been committed in the place where the breach of
contract and the resulting damage occurred.
Marriage
Where one of the parties docs not voluntarily consent to the Meaning and
marriage . the marriage will be_dcclarcd invalid.
, definition
The union must be of one biological man and-one
biological woman, otherwise it will be void.
_
ceremony; or where the husband toa potentially polygamous
marriage acquires a domicile in.a couiUry_ which_does nQ _t
permit polygamy.
Where a marriage was celebrated in a polygamous form,
but neither party can under their personal law take another
spouse, then the marriage will be regarded as monogamous.
>
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prr,cral rule, th*« « ddrrr.ir.r l by ?! r \* w ‘ t r '
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a aaStofi
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to ;
«a
ss^^ ssSssffisSs
.iggT
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3 c :iia !j5d.
^ .
(J»tmmr. kttmrf , surround ? th <» b*u* of t ick of
pmrfol errrarr-t Caw U*< teres fc> cUwi/y such an bsu« i >
aneri Ibrsv.
Hie Incidental The c».aa Jnati(so pi <a>«* U** tfTwtfrat** that tbe incidental
*
1 jrstion <f »nJir>edor* r»r« attract a r*«<fumoI ru!*. Each c*3i ti.
gt
^wwn llmi
_
in England at.the time.cf the proceedings.
_
Pirties_ tpJhe_rnarriagQ_were.domiciled or.habitually.resident
- and legal separation
*ft I
.
*
on£ of essential validity, and therefore subject to the law o
domicile.
R . In relation to physical defects or incapacity, the position is
unclear. Such defects have been classified as issues of form in
some instances, and as issues of capacity in others. rvi
Recognition of foreign Where a decree is granted elsewhere within the British Isles,Jt
livorces, legal will be recognised unless not granted by axQurt
eparations and
nnulments Whore a decree is granted.elsewhere h.y
.
_ _means_of
.
eilher_of _the parties
»
Wj v reside!
domiciled or a national of that country.
.ecognition of extra- An extra-judicial divorce, if pronounced in England, will not
ldicial divorces be recognised by English courts.
If, on the other hand, it was granted abroad,Jhen it wiilbe
recognised if it is effective underJbeJaw of the countryjffngre
. . ^
<
it was obtained . and at that date, each-partyLtQ_ihO-Xr,ani?ge
.
WhtTP the parties have made an express choice of law The commonlaw
_
provision in their contract , this will normaIly h£ upKcicl _ approach
_
provided itls made bona fide and lepaljjtnless it _is_ against
public policy_or unless this lav / was chosenJo evade the
,
This Act implements the Rome Convention of 1980. It came The Contract'
into force on 1 April 1991. ( A > plicableT.a\v) Act
_ _
Where the parties have made a choice of law in their
contract, this will _be upheld unless, where all the other ^ l^^/
^
relevant elements are connected with one country only, that LA c y
_
_ e , however, the subject matter ofjhe contract is a
-
ngnt m immovable property then the contract is presumed a , (, u J
^
be most closely connected with ^ the lex situs
.
to ' T '
v . Contracts for the ca rriage goods arg.pL sumed to be
^ ^ ^
hjhe_country which the carrier
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hasJusprindpaLplaaLoibusiness iji ®
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? . valid if it
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. FormaWaUdity of contracts for rip* t •
:
i i pfacmBlteffiHSTtoJbe i \ ;
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i performance .’ ; T 1;
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c )Capacity
d)Cfl'«cl and construction ofa contact
e )Diichaife
Law of Obligations Olllegalily
ilContracts governed by English law
( Contracts and Torts) ii )Coninici!not governed by English law
8 Remidics and Damage!
.
A Choice or last in contrncl
B. Choice of law in Tort
'Indian law
I General contracts
2 .Specific contracts
Choice of law in contract
Choice of law In Tort
Os
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• jfitutnvci'Gi ,
-
ilw aiioion under Specific Relief ActJ 963.
9 t*ar£ r noe in Indian law
^
bJTangible movables
i )Lex situs rule
ii)Exception to the lex situs rule
c(Intangible Movables
i (situs of intangibles
ii )Choice of law rules
•Attainability
CMfi»tt oflawj Rut« Relating t 0 Ch;id itn
•Validity of the ,assignment: Contractual questions
•Effect of the assignment: Proprietary
•Logtish Uw d )Govemmental Expropriation questions
1 Imroducncjn 3 . Matrimonial Property of Property
Vt
2 Legiumar. and Legituiuci&n a )Applicable law
3Adoption i )Movable property i
ii)Mutability or immutability * * 1
iiillnimovable property
I
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.
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bJAntenupiiil Contracts
CjMatrimonial Propcnv rights and divorce
^aSuccession
) Introduction
bJWills
i )Movables
•Choice of law
•Capacity
•Formal Validity
•Essential Validity
•Construction
•Revocation
-
Foreign Immovables Choice oflaw
•Capacity
•Formal Validity
•Essential Validity
•Construction
•Revocation
c) Intestate Succession
i ) Movables
t •
iillmmovables
d )Renvoi in succession cases
e)lncidenlal question
•Indian law
I . Movables and Immovables
a )Tangible movables
b )lnlangible movables
c )Shares and Bonds
d )Negotiablc Insttuments
2 Actions of foreign governments regarding property
3 Effect of marriage on property rights
4.Intestate Succession
a )General rules
b ) Law applicable to persons
i )Christians
ii ) Hindus
iii )Muslims
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5.Testamentary Succession
a )General rules
b ) Law applicable to persons
i ) Hindus
ii ) Muslims
iii )Chrisiians
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