PREFACE

This book has been prepared so as to provide general understanding on

the private international law. It is conceptual and theoretical oriented
manual. It aims at imparting underlying conceptual knowledge. It is user
friendly since it has been designed to attract attention and establish the
strategies in studying private international law with results desired. It
uses simple language as well as ideas grasping nature.
However this book should not be used as final and conclusive reference
during the pursuit of the private international law study. Hence students
and other stakeholders are needed to refer other literatures cited and
referred herein for further clarification and extensive knowledge
development.
 PRIVATE INTERNATIONAL LAW (P.I.L.)
LAW 302
COURSE OUTLINE

1. INTRODUCTION

Meaning of private international law

Theories of private international law

Basic concept under private law

The key features of private international law

2. DOMICILE

Meaning of domicile

Test of domicile

General principles guiding the concept of domicile

3. LAW OF MARRIAGE

Meaning of marriage under private law

Element of marriage that affected in private law

Theories of marriage under private law

4. PRIVATE INTERNATIONAL LAW ON TORT ( LAW ON TORT)

Meaning of tort

Choice of law on tort cases

Theories of tort under private law

5. PRIVATE INTERNATIONAL LAW ON CONTRACT ( LAW ON CONTRACT)

Meaning of contract

Theories governing the contract in private law

Proper choice of law on contract under private law

6. PRIVATE INTERNATIONAL LAW TO WILL ( LAW RELATING TO WILL)

Meaning of will under private law
Choice of law on will
Theories to determine the validity of will under private law
7. PRIVATE INTERNATIONAL LAW TO PROPERTY
Meaning of property
Choice of law on property under private law
Theories to determine the validity of transfer of property under private law
INTRODUCTION TO PRIVATE INTERNATIONAL LAW
MEANING
Refer to the set of rules, principles and guidelines used to solve private dispute which have
foreign element.
Private international law is there to regulate the relationship between individual person who are
from the different state or jurisdiction, thus to say it does not deal with public matters rather than
it there to govern and solve the problems when there is a conflicts between one jurisdiction and
another especially when it involve private individual.
The scope of private international law varies from country to country, however and each
jurisdiction has its own rules in solving this problems
Example
Suppose Tanzanian has entered into a contract with person from Kenya, the dispute rise under
their contract between this two parties due to failure of fulfilling primary objection of the
contract.
Questions
i. What are the laws to be applicable in solving this dispute?
ii. Which court will have jurisdiction to entertain and solving the dispute?
According to the nature of the example given you will discover that whenever there is conflict of
law in legal system or jurisdiction between parties of different state, private international law is
there to impose rules and principals in solving various private dispute.
FOREIGN ELEMENT
Is the element that refer or attract the application of the laws of more than one legal system in
solving the dispute which arise between private individual.
CONFLICT OF LAW
Is the set of procedural rules that determine which laws and jurisdiction to be applicable in
certain legal system in solving dispute between private individual of the different jurisdiction
Or
Is the set of rules or laws which jurisdiction applies to a case, transaction or other occurrence that
has connection to more than one jurisdiction.
Sometime phrase “conflict of law” and “private international law” are used interchangeably since
both of the two terms are used in solving dispute between the private individual from the
different jurisdiction or state.
The conflict of law occurred to the point that where there is a contradiction on legal system to be
applicable in solving private dispute.
The conflict of law is used to set up the procedural laws on solving the dispute between the
private individual of the different jurisdiction. As conflict of law denote a difference between the
laws of two or more jurisdiction with some connections to the case such that the outcome
depends on which jurisdiction laws to be used in solving an issue.
DIFFERENCE BETWEEN PRIVATE LAW (P.I.L) AND CONFLICT OF LAW
The difference between private international law and conflict of law is that
Conflict of law impose the procedures in solving the disputes which arise between private
individual of the different legal system or jurisdiction, in other way conflict of law may be
termed as procedural law
WHILE
Private international law consist of the principals, theories and rules of solving the disputes
between the private individual of the different jurisdiction, in other way the private law can be
termed as substantive law
DIFFERENCE BETWEEN PRIVATE AND PUBLIC INTERNATIONAL LAW
1.private international law is not part or branch of international law since it fall under municipal
law or national law as the law which applicable to particular country chosen by the parties in
solving their disputes are the laws of the certain jurisdiction
WHILE
Public international law must have features of universal, fall under treaties and charters as
applicable universally or worldwide.
Public international law deals with rules and principles agreed by various states to bind
themselves in various aspects which includes treaties, protocols and treaties
2. Private international law is only applicable to an individual parties in solving private disputes
BUT
Public international law is mostly applicable to the states, but in few circumstance may be
applicable to the individual as when an individual can be subjected to the public international
law as when he or she subjected with other public and not private person.
RATIONALE OF HAVING PRIVATE INTERNATIONAL LAW
The main reason of having private international law is to address or solve the main legal
problems that may arise due to the interaction of the people from the difference jurisdiction or
legal system
Also to regulate and enforce the rights of the private person who originated from the difference
jurisdiction in case of the disputes
THE PRPBLEMS (SCOPE) UNDER PRIVATE LAW
AREAS WHERE PRIVATE LAW COVERS
 Jurisdiction
 Choice of law
 Enforcement and recognition of foreign judgment
JURISDICTION
Is the power of the court to determine and solving the matter brought before it, private
international law is there to regulate and answer the problem of jurisdiction to the court of law in
solving private dispute of the different legal system.
Also it determine which country or state has jurisdiction to entertain the matter of the private
international law.
CHOICE OF LAW
Under private international law every case has its own choice of law as well as the principles of
solving the disputes. The choice of law will depend with the nature of the case as to decide
which kind of municipal laws to be applicable over the dispute
Since each state or legal system has got its own way of solving dispute by using its own laws and
rules which are differ from other legal system.
ENFORCEMENT AND RECOGNITION OF FOREIGN JUDGMENT
The judgment provided by the one state to be recognized and enforced in other jurisdiction,
where by private international law is there to regulate the matter of enforcement of the foreign
judgment.
The private international law cover the aspect of the enforcement of judgment between private
individual of the different state of legal system.
RULES OR THEORIES OF PRIVATE INTERNATIONAL LAW
The rules or theories of private international law developed by Fredrick Karl, who was the
founder of private international law and try to identify it.
There are two theories which explain about the private international law on how it regulate,
enforce and control the private individual of the different jurisdiction such theories include the
following
i. LOCAL LAW THEORY
Local law theory provide that “a forum court may apply its own rule in protecting a rights even
by a faceable or temporary law”.
In local law theory a forum court once it has to protect the rights of the person, it must create a
temporary rules to protect a rights thus means a matter that to be protected is not exist in that
jurisdiction hence in order to protect that rights a court has to make an assumption that rights is
existing in its jurisdiction and assume it is there for the purpose of solving it.
According to the local law theory even if the forum court recognize and enforce a local rights in
the foreign element case, it does not essentially apply the rules that would govern an analogous
case that is of purely domestic character
PURPOSE OF LOCAL-LAW THEORY
The main purpose of the local law theory is to protect the sovereignty of the forum court, In
sense that forum court will not be forced to use a foreign laws in solving disputes rather than
court will use its own laws on solving the disputes,
Under local law theory the forum court does not have a specific choice of law and rules hence it
will make an assumptions in solving the problems of private in nature.
ii. A VESTED-RIGHTS OR ACQUIRED RIGHTS THEORY
A vested-rights theory provide that “once a right is created or vested to a person its existence
should be recognized everywhere”. According to this theory maintain that once a rights has been
vested to a person by laws of the different state that rights has to be enforced in every place as it
is.
This theory takes away sovereignty of the forum court in sense that the local law theory gives
powers on making the assumptions WHILE vested theory does not give chance to choose the
law to be used as it force other laws to be applicable in other jurisdiction even if the law will be
against that legal system.
This two theories brings out the foundations of the private international law and they not
preferred to be used since most of the matter brought to be solved have already developed with
rules and principals of solving that particular disputes.
SOURCES OF PRIVATE INTERNATIONAL LAW
 Constitution
  Statutes
 Cases laws
Why they regard this as the sources of private international law?, the reason is that private
international law solved by municipal laws as the municipal laws originated from constitution,
case laws and statutes of the particular country.
For stance in Tanzania we has an Act which refer to RESPROCAL ENFORCEMENT OF
FOREIGN JUDGMENT CAP 08, this Act is there to address and provide as well as to allow to
what extent the foreign judgment can be enforced in Tanzania.
Also the Act is used to register the judgment which has been decided and provided outside the
Tanzania jurisdiction refer to section 4 of the reciprocal enforcement of foreign judgment Act in
Tanzania.
INCIDENTAL QUESTION
Is the subsidiary or legal issues that arises in the connection with major case or the main issue of
the action in the law suit
Or
It is the question which normally demand the answers before the main question is solved. It is
not a main question in sense that there is main issue that has to be answered before the court of
law, so before the court has answer the main question there is a minor question that has to be
answered first before the major issue.
In private international law there may be a case which does not only demand answer to its main
question but also to the subsidiary one. Usually both man and subsidiary questions require their
own choice of law and rules.
EXAMPLE: suppose the main problems is the distribution of the deceased property among the
members, one of the among of the beneficiary is the woman who is claimed to be a wife of
deceased person
The main issue will be DISTRIBUTION OF THE PROPERTY and the incidental question in
this case may be
i. Whether that woman is the legal wife of the deceased person?
ii. Whether the marriage between that woman and deceased was valid?
Incidental question is like PRELIMINARY QUESTION which has to be solved first before
solving the main question.
Various legal scholars propose various solution to the incidental question
i. Wolff-lip stain & Robertson
Proposed that “the law applied in the case of the main issues should be the same as the law
applied to the subsidiary one”
 ii. Falconbridge,, Nussbaum & bras laurer
Proposed LEX FORI SOLUTION as to mean that “the law of the forum should be applied to
both instances”.
MORDEN OPINION
The modern opinion is that it is neither possible nor even needed to find one solution that fits all
instances of the incidental questions.

Gotheb said that

“There is really no problem of the incidental question but as many problems as there are cases I
which incidental question can rise”.
THREE MAIN ELEMENT OF INCIDENTAL QUESTION
There are rules which helps to identify and understand whether there is incidental question or not
as this rules or element came in way of presumption.
i. Main issue is govern by the foreign law.
As the main question is solved by the foreign rule. Foreign law means the law of the different
country other than the law of the court which has jurisdiction, hence the main issue will be
solved by the law of the different country other than the law of the country with jurisdiction.
EXAMPLE
Suppose there is a dispute concerning the validity of marriage on the court of Tanzania, but the
parties to the dispute are domicilian of Kenya. The main issue will be validity of marriage and
applicable law will be Kenyan law as law of different jurisdiction to be applicable in other
jurisdiction.
According to element number one the main issue will be governed by the foreign law, Kenyan
law will be applicable over the dispute of validity of marriage under Tanzania since the main
issue will be the validity of marriage.
ii. Subsidiary question choice of law rule will lead to a different conclusion than that of
the main question.
The law which will be applied in solving the minor question, if it was the same law as those laws
which will be used to solve the main question the answer will be different this is because this
concept involves the use of the laws from more than one jurisdiction hence if the same law will
be applicable it will cause to an wrong judgment.
iii. Subsidiary question involves a foreign element and is such that it could have arisen
on its own and has its own choice of law rules.
This means that incidental question arise when court face with the main case and it has to answer
the minor question. An incidental question rise as an independent question with its own
principles it does not need to occur as an incidental questions as it can stand on its own way as
new case or fresh case.
RELEVANT CASES
i. Lawrence Vs Lawrence (1985)
A woman previously married in Brazil, got divorce in US this divorce was not recognized in
Brazil. The woman then married another man in US she did so in fact next day after divorce,
sometime later the second husband filed a petition to decide on the validity of second marriage
under Brazilian law the woman lack the capacity to marry, but under English private
international law US divorce was recognized
So incidental question was arising from this dilemma in this case, the court of appeal in fact
decided to recognize the validity of the second marriage. This effect meant the court gave more
importance to divorce recognition than capacity to marry for different judicial approach.
ii. Schwebel Vs ungar (1963)
A Jewish married couple domiciled in Hungary decide to move and live in Italy. During their trip
to the Israel, in Italy the husband divorced by the way of “get” a short divorce document. While
Israel law recognize the “get” divorce the Hungarian and Italian did not do so, both two parties
acquired Israel domicile and wife later went to Ontario and married second time.
The woman and new husband consulted rabbi beforehand who told them that this way
completely legal, after they have lived few year together before issues in marriage started to
occur and second husband of this woman partition to Canadian court to issue decree of nullity of
their marriage on the ground of bigamy of his wife before Canadian court.
Issues
i. Wife capacity to marry under the Israel law, chosen by the Ontario’s choice of law
rules
ii. Whether the divorce by “get” was valid?

iii. Knan Vs marriage registrar (1968)

Marriage registrar refused to allow plaintiff to marry in Malta on the basis that divorce by talq
cannot be recognized in Malta. In case of Maltese law, the divorce must be accompanied by
court judgment however according to the Indian law the law of domicile of plaintiff recognize
the divorce by talq
Hence the case was with drawn
THE DOCTRINE OF RENVOI
The word renvoi id French term which means “send back” or “return unopened”
Refer to the process by which the court adopt the rules of the foreign jurisdiction with respect to
any conflict of laws that arises.
Or
Is the legal doctrine which applies when court is faced with conflict of law and must consider the
law of another state. When the court adopt the rule of foreign jurisdiction or adopt the rules of
different jurisdiction in solving a private dispute is what we term as renvoi.
PURPOSE OF RENVOI
To prevent a forum shopping and the same law is applied to achieve the same outcome
regardless of the where the case is actually dealt with. It’s when a forum court is used to solve
the foreign case, thus means not by forum court to take the law in the foreign country in solving
the problems.
This doctrine allow to send back the authority and to accept in solving the dispute. Renvoi
embrace the use of foreign law of the foreign jurisdiction
Boys Vs Chaplin (1971)
The doctrine of renvoi originated from the FORGO CASE
A Bavarian national died in France where had lived since the age of 5 where under the Bavarian
law the collateral relatives were entitled to succeed, but under the French law the property will
be passed to the French government but not to the family member.
HELD
The French court held that it would decide the matter by applying the Bavarian law however the
sate contended that the Bavarian court would apply French law, and French ought to do so. The
case was ruled for the French state, and the reference here was to the Bavarian guidelines of the
contention.
TYPES OF RENVOI
Basically there are two types of renvoi which are
 Single renvoi
 Double renvoi
SINGLE OR PARTIAL RENVOI
Is the type of renvoi which refer to another jurisdiction choice of law rules. Under single renvoi
the forum court will consider whether their own domestic law is the applicable law or if the
applicable law is that of another jurisdiction.
Where other rules (jurisdiction) may return to the forum court, the process of returning the issue
to the forum court to settle dispute basing on the forum law rules, this concept of retuning is
what we call it as renvoi
EXAMPLE
Suppose chale lives in Tanzania, he married Hanna then moved to Kenya, while they are in
Kenya they separate each other, Hanna went to the court for the distribution of matrimonial
property after divorce.
The forum court which is Kenyan court will consider its own domestic law to be applicable or
choose the law of other jurisdiction which is the law of Tanzania as it will send the issue to
Tanzania court where by Tanzania court may return the issue to the forum court to solve such
kind of dispute.

DOUBLE OR TOTAL RENVOI

Is the type of renvoi which involve the applicability of the foreign rules laws of the jurisdiction
of more than two different countries in solving the private individual dispute.
Or
Is the type of renvoi which refer by its conflicts rules to the foreign country, most apply the law
which a court in that foreign country would apply if it were hearing the case. Some of the
jurisdiction does not allow the application of double renvoi such as Italy and other.
It is that form of Renvoi in which the foreign law returns to a third state law and not to the law of
the judicial forum. In this form a forum court acts in the exactly way a foreign court would if it
was faced with the same case.
The court makes a virtue journey to a foreign court and attempts to learn how that foreign court
would handle the matter in similar circumstances.
Assume the fact that a Sudan citizen who usually reside he and died in Tanzania with a movable
property in Kenya. A Kenyan court being a court of forum has to decide on inheritance of his
movable property;
By application of its PIL rules will refer to the national law of the deceased (Sudan laws) which
in turn refers to the Tanzanian Succession Law as the law of the deceased domicile to govern the
same.
Here there is double Renvoi Kenya --- Sudan ----- Tanzania
In Re Annesley (1926)
The testatrix, a British national died domiciled in France according to English law, but domiciled
in the England according to French law. Her will was valid by English domestic law but invalid
by French domestic law,
For she had failed to leave two third of her property to her children. Under English choice of law
rules the essential validity of will was governed by French law as the law of her domiciled at the
time of her death
HELD
The court applied the total renvoi theory and held that, the will was governed by French
domestic law for the various reasons.
i. The English court took the reference to French law to mean that the case must be
decided as the French court would decide it
ii. According to the French conflict rules, the succession was govern by English law as
the law of the testatrix’s nationality.
iii. French court would apply the conflict rules of that law, that us it would account and
apply the French domestic law.

N.B
Renvoi applies to the question of intestate succession and essential validity of the will. There is
some authority to the effect that it applies to the marriage and that it should apply to cases
involving tittle to the immovable property.
Topic 2
LAW OF A PERSON OR DOMICILE
The word domicile came from the word “domicilium” which means inhabitant person, who has
permanent resident in certain state.
Refer to the place where a person has permanently resign and choose to be abide with the law of
that place.
According to the Oxford dictionary of Law, a person can be said to be domiciled in a country
which he treats as his permanent home, and to which he has the closest legal attachment. A
person cannot be without a domicile and cannot have two domicile at once. At birth, he acquires
a domicile of origin which is normally his father’s domicile. He retains his domicile of origin
until (if ever) he acquires a domicile of choice in its place. In England, it has long been settled
that questions affecting status are determined by the law of the domicile of the Porosities, and
such questions are those affecting family relations and family property.
There are currently two main classes of domicile namely the domicile of origin and domicile of
choice. The domicile of origin is acquired at birth, and in this case, could be the domicile of the
father or that of the mother, according as he is legitimate or illegitimate
Under private international law on the issue of conflict of law, domicile is the connecting factor
in solving dispute since the domicile attach to the person, domicile is being regarded as
connecting factor in sense that under private international law there is possibility of applying the
laws of more than one country so it attach to the person at the time when the person agreed to be
abide with specific laws for the permanent life.
The concept of domicile does not mean that a person change his or her nationality, but it means
that a person choose to be abide with the law of certain state without change nationality of that
particular country.
Domicilian is the person who has permanently resign and choose to be abide with the law of that
place.
As this concept is applicable when a person is only choose to be subjected to the certain laws and
rules of the certain state but he or she remain with his or her nationality.
IMPORTANCE OF DOMICILE
Under private international law there is always the conflicts of laws in solving private individual
disputes which arise between people from the different jurisdiction. The doctrine of domicile is
important because
It establish the connection between a person and law, since no person can live without being
subjected to any kind of certain legal system.

The concept of domicile is not uniform throughout the world. Lord cranworth in the case of
winker Vs Hume (1858) 7 HL 124 state that “by domicile we mean, the permanent home and if
you do not understand your permanent home, am afraid that No illustration drawn from foreign
writers will very much help you to it”.
N.B
The concept of law of domicile is limitation only on the matter of private international law
TYPES OD DOMICILE
There are various types of domicile such as
 Domicile of origin
 Domicile of choice
 Domicile of dependent person
 Domicile by operation of law

i. DOMICILE OF ORIGN
It is a domicile of a person which attach to him or her from the time of his birth. The domicile of
origin is kind of domicile which a person acquire at birth, and remain with that person thereafter
until it is replaced by other types of domicile.
Harrison v. Harrison, [1953]1 WLR 865,
Harrison was born in England with English domicile of origin. When he reached 18 (the age of
majority at which an independent domicile could be acquired was then 21) his parents
immigrated to South Australia and acquired a domicile there, leaving him in England. Under the
rules explained above, Harrison acquired South Australian domicile of dependence. When he
was 20 he migrated to New Zealand, intending to remain there permanently and married a New
Zealander.
Shortly thereafter he returned to England, where he turned 21. His wife petitioned the English
court for a divorce and at that time the English court could have exercised jurisdiction. When
Harrison turned 21 he lost his South Australian domicile of dependence. As he had not yet
acquired a New Zealand domicile of choice (because he had not resided there since turning 21)
his English domicile revived.
According to the house in udny Vs udny (1869) “no person shall be without a domicile, and to
secure this result the law attributes to every individual as soon as they are born the domicile of
his or her father, if the child is legitimate and the domicile of mother if it is illegitimate”
In Henderson Vs Henderson (1967) “a domicile of origin is the domicile acquired at birth and
not the domicile of the dependency as the date reaching the age of majority”.

EXAMPLE
Chale lives in Tanzania, since he was born his domicile will be the laws and rules of Tanzania
since he have interest to be abide by the law of Tanzania. If the person does not choose to move
from original country he will be automatic acquire the domicile of origin.
ii. DOMICILE OF CHOICE
Is the type of domicile occur when person choose to be domicile of the certain state. Domicile of
choice is the opposite of the domicile of origin as person denies his domicile of origin and
choose the laws of another state apart from his laws of origin to govern him.
Every independent person is capable of acquiring a domicile of choice by the residing in the
country than the country of origin with intention of remaining there permanently. Under domicile
we are mainly look on three important elements
 Residence
 Intention
 Permanent living
In the case of bell Vs Kennedy (1808) LR, SC Div 307
It was held that new domicile is not acquired until there is not only a fixed intention of
establishing permanent residence, but until also the intention has been carried out by actual
residence there. Residence of any duration provided that there is an intention to stay permanently
that will suffice. But such residence must be acquired lawfully and not in contravention of public
policy or any law. And a person can have two residences but he must have the chief residence.
ASSUMPTION OF REVIVAL
If the person does not choose the domicile, he will remain with domicile of origin. As a person
might abandon the domicile of origin until he or she choose the domicile of the choice of the
particular country.
iii. DOMICILE OF DEPENDENCY PERSON
Is the domicile of people whom in the law do not have a capacity of their own such as children,
people with mental disorder. The domicile of such person depends on, and changes with the
domicile of the person on whom they are legally.
In the case of Attorney General for Alberta v. Cook, [1926] AC 444
Where a wife was separated by her husband by court order in Alberta but the husband domicile
of origin was in Ontario and this meant that the wife had a domicile of dependence in Ontario.
So she instituted the divorce proceedings in Alberta. It was held that the courts in Alberta have
no jurisdiction to entertain the case as the case was only maintainable in the
Ontario where her husband had domicile. Separation even by the court does not annul marriage
and therefore, it does not change the domicile of dependence by the wife.
Domicile of dependent child
The domicile of dependent child has been divided into various categories such as
Legitimate child, a child who is legitimate will acquire the domicile of his father at the time of
his birth and during the life time of the father. Thus means at the time of the birth father was
domicilian of Tanzania therefore the child will be domicilian of Tanzania, if the father dies child
will take the domicilian of mother
Illegitimate child, a child who is an illegitimate will acquire the domicile of the mother at the
time of his birth as his or her domicile of the origin.
Domicile of foundling child, a child that has been found on state or in the country due to the
displacement or civil war, the domicile of that kind of child will be the domicile of the country to
which he or she found and become his domicile of the origin.
Domicile of person with mental disorder, the domicile of a person with mental illness is being
determined at the place before him or her become of his unsound mind. As to mean the last place
of the country of the domicile will be the domicile of the origin.
iv. DOMICILE BY OPERATION OF LAW
Refer to the domicile of married woman, where by married woman by virtual marriage acquired
the domicile of her husband. It is rule that “a married woman acquired the domicile of her
husband in sense that the assumption is that when she married she will follow and acquire the
resident of her husband”.
PRINCIPLES/ RULES WHICH GOVERN THE LAW OF DOMICILE
 i. No body shall be without a domicile at any time.
As it is settled principles that no one shall be without domicile and in order to make this effective
the law assigns domicile of origin to every person at birth. Domicile is governed by residence so
every person must have at least the domicile of origin, if the person does not choose to be bound
with the laws of particular country the domicile of origin will be applicable.
ii. A person cannot be subjected to two different legal system at the same time.
As to mean that person cannot have two domicile, since the object of the law insisting that a
person shall not be without a domicile for the purpose of establish definite legal system which
certain of his rights and obligations may be governed. As a person must choose one domicile so
as to obtain and regulate his or her status. Where by it is important to clarify in clear way the law
of domicile of the particular states.
iii. The domicile of the person connect a person with single system of territorial law.
This rule means that when domicile established it is automatically connected with specific law of
the certain legal system.
iv. Domicile of a person is to be determine according to the law of forum or
according to local law.
Always the law of forum is the one which is used to determine the domicile of person, where by
there is certain factors which are used to determine or establish the concept of domicile of person
such as
 Intention
 Tenacity
 Residence

v. There is always presumption in favor of continuance of an existing domicile

Refer to udny vs udny (1869), where by the case has establish two principles of domicile, to
mean that if the person had earlier choose the domicile of a particular country and not change his
or her domicile there is always favor of continuance existence of that particular domicile.
N.B
The rules of domicile are there to govern the concept of domicile and not to determine the
domicile of a person. Determination of the domicile of a person is at the hand of the court, as
forum court determine rules of domicile of a person
If the law of domicile of a particular person is not known then the court will use forum law or
local law to determine such domicile.
Topic 3
THE LAW OF MARRIAGE UNDER PRIVATE INTERNATIONAL LAW
Introduction
In each jurisdiction has got its own concept and meaning of marriage, where by the concept,
rules and formalities of marriage varies from one legal system to another.
In issue of marriage under private international law the rules of marriage has been categorized
into two which are
 Rules on validity of marriage
 Rules on the formalities of marriage
RULES ON VALIDITY OF MARRIAGE
Essential validity
Refer to the element that will make the marriage to be valid. The essential validity of marriage is
governed the various law under private international law.
The formal validity of marriage is governed by the law of the place of the celebration of that
marriage, as where the marriage has taken place.
Lex loci celebration- the law of the country where the marriage has been celebrated.
Lex domicilium- the law of the country of domicile or nationality
Lex fori- the law of the country in which proceedings affect the validity of marriage
Lex patriae- of one or other of the parties with choice of law or the law of habitual residence.
In the case of Sotomayor Vs De Barros (1877) No. 1 3 P.D 1
RULES ON FOMALITIES OF MARRIAGE
On formalities of marriage under private international law we are dealing with formal procedures
on how the marriage is constructed. The formalities of marriage is govern by Lex domicilium,
Lex fori and Lex loci celebration.
GENERAL RULE
The general rule is that the law of domicile is the one which allow members to form a marriage
under private international law.
THEORIES ON LAW OF MARRIAGE UNDER PRIVATE LAW
The theories on the law of marriage under private international law are used to determine kind of
domicile to be used over the marriage matters on the parties of the different jurisdiction.
Whereby there are two theories on the law of marriage under private law.

 Dual domicile theory

 Intended matrimonial home theory
DUAL DOMICILE THEORY
According to dual domicile theory allow the use of domicile of each party to applicable in
determining the validity of marriage. The dual domicile rule stem from the traditional theory that
capacity to marry is governed by the ante nuptial domicile of each party.
It effect that a marriage will only be valid if it is so by law of domicile of each contracting party
at the time of marriage the parties to have a capacity to contract the particular marriage.
MERIT OF DUAL DOMICILE THEORY
i. It preserve equality between the parties by looking to the law of domicile of each
party to the marriage
ii. As matter of principles, it identifies the legal system which party has a closet legal
connection
iii. It pits the parties on an equal footing and does not prefer the husband law that of his
wife.
In Re Paine (1940)
Where the wife, a British subject and domiciled in England visited Germany, where she married
her deceased sister’s husband a Germany subject this marriage was void in England but valid in
Germany. The couple lived in England until their respective death
Issue was whether the surviving daughter was legitimate for the purpose of succession?
Held the court had to decide the validity of marriage as judge applied the dual domicile rule and
held that the marriage was void, since the ante nuptial domicile of the wife attached incapacity
on her to contract such marriage.
INTENDED MATRIMONIAL HOME THEORY
According to this theory, the law of the country in which parties intended to establish their
matrimonial home after marriage is the one to be used in determining the capacity or validity of
the marriage of the parties.
This theory does not explain or touch about the individual domicile in assumption that, when
people got marriage they will intend to settle down. It is more relevant when parties to marriage
came from the different domicile as parties may came with agreement the intended matrimonial
place after entering into a marriage contract
The law of domicile of intended matrimonial home is considered as the law of domicile of
husband since the wife will depend on her husband.
ISSUE OF SOVEREIGNTY OF THE STATE
The issue of state sovereignty over the marriage under private international law is that the public
interest will be protected by any means.

Topic four
CHOICE OF LAW ON TORT
INTRODUCTION
The question of choice of law in tort is a difficult and complicated one. Its Difficulty stems from
the many types of torts which exist, such as negligence, Assault, defamation, and the various
kinds of scenarios in which a claim
In relation to a particular tort may arise. Moreover, unlike contracts, where disputes can be
anticipated and a choice of law clause to this effect may be inserted by the parties, tort injuries
are most unexpected and parties are hardly.
Likely to give advance thought to any choice of law. Until injuries occur and
The injured party decides to pursue a claim for compensation, the issue of
Choice of law in tort will not arise.
A critique of the tort rule needs must have a structure; the one that has been chosen reflects the
development of the rule since its formulation. There shall be considered first the application of
the Lex loci delicti, then the application of the Lex fori.
(1) What is the locus delict
(2) When is an "act" not justifiable
 (3) The applicability of the rules of the Lex loci delicti quantifying compensation. (4) Pleading
the foreign law. Under the second head fall the topics:
The Lex fori as the Lex causae.

Topic Five
CHOICE OF LAW IN CONTRACT UNDER PRIVATE LAW
The choice of law in a contract under private international law are very briefly since the rules are
very clear in showing the rules which regulate the principles of the contract formation between
the parties who are from the different jurisdiction.
A choice of law clause or proper law clause
Is the term of a contract in which the parties of the different jurisdiction specify that any dispute
arising under the contract shall be determined in accordance with the law of the particular
jurisdiction.
A choice of law or governing law provision in a contract allows the parties to agree that
particular state’s laws will be used to interpret the agreement even if they lived in or the
agreement was signed in other jurisdiction.
In the case of Sabah Shipyard (Pakistan) ltd. v Pakistan [2002] APP.LR. 11/14,
There was a contract between the plaintiff and the respondent for the production of electricity in
Karachi. In the power purchase agreement, the government of Pakistan guaranteed to indemnify
the plaintiff in case of anything. When there was delay in providing services by the plaintiff, the
electricity authority of Karachi treated that as breach of the contract instead of giving an
extension of time for the giving of services. The plaintiff applied to an arbitrator in Singapore
who ruled in favor of the plaintiff and awarded damages. The government of Pakistan went to
court alleging that it did not accept the decision of an arbitrator to bind Pakistan as it has state
immunity.
There was clause in the agreement which empowered the parties to refer the dispute to be
adjudicated in England in case of conflicts. While the issue was thus pending, the plaintiff
applied in the court of England to stay proceedings and to claim for the relief.
The court held that though the laws of Pakistan provide immunity and exclusion of the courts of
England from entertaining the case, the Courts have authority to adjudicate under the contract
and agreement as between the parties.
LEX LOCI CONTRACTUS
Lex loci contractus is the Latin term which stand for the “law of the place where the contract was
made”.
In the choice of law over the contract if the dispute has character of the foreign element, the
forum court as the conflict of laws system will consider some of the factors like
Whether the forum court has jurisdiction to entertain such matter
The choice of law rules to decide which laws is to be applicable to each class such as
 Lex loci contractus
 Lex loci solution
 Lex domicilium
 And proper law
The issue of formal validity of contract is answered by the rules of Lex loci contractus as the law
of the place where the contract was made. In assumption that when parties made a contract they
be in conformity in place when they made that a particular contract.
Example
Chale from china entered into a contract with chuga from England, as before this two parties to
enter into an agreement so as to form a contract they must consider the place for the formation of
that contract for the purpose of determining the dispute over the contract.
In the case of Owens v. Hagen beck - Wallace Shows Co,
The parties entered into the contract of employment with a circus who travelled around the
country which was executed in Indiana; the permanent headquarters of the circus company was
Illinois; the parties provided that all questions were to be decided according to the law of Florida.
The court held that Florida had no connection with the contract—and so the choice of the law
was not validity
PROBLEMS OF A CONTRACT UNDER PRIVATE LAW
The problems on the contract between parties from the different jurisdiction or legal system, this
problem may arise on the contractual dispute in terms of the
 Violation of the terms under the contract
 When it occur one party find the difficult in the performance of agreed term under the
contract
 Problems in interpretation of clauses on the contract
 When there is a breach of a contract

PROPER LAW ON CONTRACT

It is a very important to determine the proper law of the contracts by the parties who enter into an
agreement. There are rules of proper law of the contract which is used to solve the dispute of the
contract as proper law chosen by the parties which can
 Express choice
 Implied choice
N.B
In the absence of the choice of proper law of the contract the determination is made through the
court to judge the validity of the contract so as it can solve the dispute which has problem of
agreement in nature.
EXPRESS CHOICE
Express choice means there are specific or express provision which specified law to the contract.
Under express choice, parties to the contract may be governed by the law of the specific country
as the choice of law that want to govern their contract.
Express choice is differ from the formal validity since the formal validity is there to govern the
whole validity of the contract but on the express choice parties they just state basing on their
reasons that they agreed to be the contract which will binds those parties.
IMPLIED CHOICE
Where there was no express selection of the proper law, the courts were prepared to infer that
there had been an implied choice of law by reason of the. Presence of particular contractual
terms.
When the parties have not used express words, their intention may be inferred from the terms
and nature of the contracts and from the general circumstance of the cases. Implied choice has
been stated in the case of Bonwth Vs common wealth Australia (1971)
“A system of law by reference to which the contract has it close and most connection”
As it sometimes known as Bonwth’s formalities, under implied choice the court put into the
shoes to determine the law to be used by looking on transaction and factors that has real
connection to the contract.
The court will determine the formal validity of the contract in solving the dispute arise between
the parties through an “EXCLUSIVITY AGREEMENT”
An exclusivity agreement is the one used to determine if the contract is governed by a particular
law as connection by the court.
Court may determine through looking on the other ways which can be
 The phrase of the contract
 The factor to the contract
 The terms to the contract
SUGGESTION AS TO WHAT THE PROPER LAW OF THE CONTRACT IS
There are two connecting factors that has been suggested as being appropriate to govern the law
of the contract
 Lex loci contractus
 Lex loci solution as place where the performance of contract was due

Some of the key principles are

a. The rights and duties of the parties with respect to an issue in contract are determined by the
local law of the state which with respect to that issue has the most significant relationship to the
transaction and the parties.
b. In the absence of effective choice of law by the parties, the principles which can be taken into
consideration in order to determine the choice of law include:
i. The place of where the contract was concluded (Lex Loci Contractus);
ii. The place of negotiation of the contract;
iii. The place of performance of the contract (Lex Loci Solutionis). Normally if the place of
performance is not made, then, the place where the contract was made is the place of
performance. Parties are given ability to choose their own law but such law should not be
repugnant to governmental interests, illegal or against public policy
Topic 6
SUCCESSION IN PRIVATE INTERNATIONAL LAW
SUCCESSION
Is the way to which property pass from one person to another after the death of the legal owner.
When person dies the transmission of the property from the deceased person to another person,
as another person to have control over the property as well as ownership is what we termed as
succession.
Under municipal law the issue of succession is governed by the law which refer to the probate
and administration of estate law.
SUCCESSION UNDER PRIVATE LAW
Under private international law the matter of succession fall under private issues. Where we
cannot look on the single law to govern it since all matters under private or international law
are govern by the municipal law.
Also succession involve inheriting a little or a rights to property through a will as when deceased
dies testate or without leaving will at all.
SUCCESSION CAN BE
 Testator or testate
 Interstate or intestacy
TESTATOR or TESTATE SUCCESSION
This is the form of succession occurred when a deceased person (testator) die by leaving a will.
A person is said to die as testate in the circumstance when he or she left a will.
INTERSTATE or INTERSTACY
It is kind of the succession occurred when deceased person die without leaving a will as an
intestacy. A person is said to die intestacy in the way that he or she does not leave a will at all.
A WILL
It is a document in which a person describe how to distribute his or her property after the death.
During the formation of will there must be a requirement of the witness, when the person make
will before his death.
How does law govern will?