Determination of domicile * Permanent residence * Animus manendi * Duration of residence in a country — important factor for the determination of domicile earlier, Modern position is somewhat different and does not attach much importance to the duration of stay in a country as most important factor, importance is attached to animus manendi * Cases * IRC v Bullock (1976)1 (WLR) 1178 + White v. Tennant 8 S.€. $96(1883)eneral rules of damicile — Cheshire, North and Fayecett that nobody shatl be without a domicile d principl cannot have two domiciies, t domicte sigeifies connection with a in law does not necessarily connote a system th rules for all class of persons in thet territory. 9 presumption In favour of continuance of the existing fo) mination of domiclte is according to the law of the forum [Lex fori) cording to the laws ef a foreign country. ile of 2 country is determined on the basis of fex fort of thatesuntry dence must be voluntary in nature and mutt be of percen:Module: 5 - Domicile, Nationality and Citizenship Domicile it read of two components: A. Permanent Residence & B. Animus Manendi (Intention to ettle). Modes of Acquisition of Domicile: A. Domicile of Origin: It is related with the place of birth and mostly with the domicile of parents/father. B. Domicile by Choice: After attainment of the age of majority, it can be acquired through some conscious act done in that regard. C. Domicile by Operation of Law: (i) By acquisition of any territory by the respective goverment (ii) Domicile of wife after marriage: (a) Intended Matrimonial Home Theory- Prof. A.V. > Bicey tb) Bual Domicile Thess Poor Gs ce Cheeni y Indian Position on Domicile Significance g£gpomicile for succession of property Determin of Domicile for certain specific category of persons: Legitimate and illegitima, Id, Minor, Lunatic, Wife’s domicile during marriage.Determination of Permanent residence & Animus manendi Exception to the permanent residence Case: Sankaran Govindan Vs. Lakshmi Bharathi ATR 1974 SC 1764 Factors Relevant for determination of Animus Manendi: Tastes, habit, conduct, actions, ambitions, health, hopes, projects of the person etc. Due to the objective nature, permanent residence is considered as one of the most important criteria for determination of domicile. It is often determined on the basis of minimum statutory requirement as to the length, of stay prescribed under the concerned statute of any country. However the length of stay, requirement regarding determination of permanent residence is not absolute, It is subject to certain exceptions i.e. there are certain persons whose length of stay is not considered as relevant for ascertaining the minimum statutory requirement about that. The residence of those persons are n considered as voluntary one and due to that presumption goes against Aning; Manendi for determining domicile of any person. Those exe fs are: 1. Prisoners 2. Refugees! ersons seeking asylum 3. Fug/ from justi ug tive Debtors 5. Ambassadors: lomatic Agents/ Consular 6. Invali tled in some country due to some health reasons etc. - ffje of Choice: Fundamental Differences Domicile of Origin and Domi 1. Domicile of Origin comes into existence by operation of law, independently of the volition of the person and every person gets it on his/Her birth. Domicile of Choice is a domicile which is acquired by the free volition of the person concerned. 2; ‘There is very strong presumption in favour of continuance of domicile of origin and its hold is stronger as Compared to the domicile of choice. 3. Domicile of Origin cannot be abandoned easily, Since it is a creation of lay, it cannot be lost by mere abandonment. Until a domicile of choice is acquired, domicile of origin continues. Case: Bell Vs. Kennedy (1868) L.R.1, 307 Mr. Bell, had domicile of origin of Jamaica, He left that country with a view to acquire the domicile of Scotland, He reached Scotland, lived there for quite long time. but did not acquire official domicile there, After the death of his wife, dispute arose as to his domicile and it was held of Jamaica. 4, Domicilgadgigaaftigin is never lost, when a domicile of choice is acquired, it remains in abeyance’ As soon as, domicile of choice is abandoned, it immediately revives, ever with the country of domicile of origin is lost.Legal Provisions Regarding domicile in India Indian Succession Act 1925, Part 2, Domicile, Section 4 to 19. + SS. Law regulating succession to deceased person's immoveable and moveable property, respectively.— 56, One domicile only affects succession to moveables.- A person can have only one domicile for the purpose of the succession to his moveable property. + $7. Domicile of origin of person of legitimate birth. * $8. Domicile of origin of illegitimate child. + $11. Special mode of acquiring domicile in India. - minimum one year immediately preceding the time of his making such declaration of his desire to acquire domicile of India. * $15. Domicile acquired by woman on marriage + $16. Wife's domicile during marriage S. 17 and 18 — Domicile of Minor and lunaticConventions of the Hague Conference * Conventions of which India Is a party to the following four: + Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, 1961 * Convention on the Service Abroad of Judicial and Extrajudiclal Documents In Civil or Commercial Matters 1965 * Convention on the Taking of Evidence Abroad In Civil or Commercial Matters 1970 * Convention on Protection of Children and Co-operation In Respect of Intercountry Adoption * Convention of 15 June 1955 on the law applicable to international sales of goods — 8 Parties * Convention of 15 June 1955 relating to the settlement of the conflicts between the law of nationality and the law of domicile - 2 Parties * Convention of 25 November 1965 on the Choice of Court - 0 Parties * Convention of 30 June 2005 on Choice of Court Agreements - 32 Parties * Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters - 0 Parties * Convention of 25 October 1980 on the Civil Aspects of International Child Abduction - 101 PartiesUN Conventions on Private International Law * Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) (1958) * United Nations Convention on the Carriage of Goods by Sea (1978) * United Nations Convention on Contracts for the International Sale of Goods (1980) . paved Nations Convention on the Use of Electronic Communications in International Contracts * United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (2008) * United Nations Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention on Mediation) (2018) * UNCITRAL (United Nations Commission on International Trade Law) + UNCITRAL Model Law on International Commercial Arbitration (1985) + UNCITRAL Model Law on International Commercial Conciliation (2002) * UNCITRAL Model Law on Electronic Signatures (2001) + UNCITRAL Model Law on Electronic Commerce (1996) * UNCITRAL Model Law on Procurement of Goods, Construction and Services (1994) + UNCITRAL Model Law on Cross-Border Insolvency (1997) + UNCITRAL Modal Law on International Credit Transfers (1992)UNIDROIT - The International Institute for the Unification of Private Law + Set up in 1926 as an auxiliary organ of the League of Nations, the Institute was, following the demise of the League, re-established in 1940 on the basis of a multilateral agreement, the UNIDROIT Statute. * 63 members — India joined in 1950. + Conventions * Convention relating to a Uniform Law on the International Sale of Goods (1964) * Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods (1964) * UNIDROIT Convention on Stolen or illegally Exported Cultural Objects (1995) * Convention on International Interests in Mobile Equipment (2001) (including Protocols on Aircraft (2001) and Railway Rolling Stock (2007) and Space Assets (2012)) * Geneva Securities Convention (2009) * Convention providing a uniform law on the form of an international will (1973)Regional Harmonization + European Union (EU) * The Brussels Convention and the Lugano Convention - to "determine the international jurisdiction of their courts, to facilitate recognition and to introduce an expeditious procedure for securing the enforcement of judgments, authentic instruments and court settlements.” * Convention on the Law Applicable to Contractual Obligations (Rome Convention) * Commission on European Contract Law: Principles of European Contract Law * Inter-American Specialized Conferences on Private International Law (CIDIPs) harmonization and codification of Private International Law in the Western Hemisphere. 6 conferences so far.TG 4 Uy CONVENTION peas REQUIREMENT OF LEGALISATION FOR FOREIGN PUBLIC DOCUMENTS (HCCH ©) ‘ay 1961 APOSTILLE CONVENTION) + The Apostle Convention facilitates the circulation of public documents executed in one Cn MM MN Mer nc Mr aC red cumbersome and often costly formalities of a full legalisation process (chain certification) SRE Me Me ee) Authority designated by the Contracting Party from which the public document emanates. Deen Rk oi ue ee tance * Legalization is a very time consuming, costly, chain verification process which is done away Poa ces OTe urn By 2) ) ay)Citizenship in Conflict of Laws Dispute zenship is a status of a person recognized as a member of any sovereign State This determination is very important ay it confers both civil and political rights in a person under the dominion of respective sovereign state. Citizenship also defined under the India Constitution, Part 2, Article 5 to 11 of the Indian Constitution. It confers citizenship on the basis of domicile of a person. “Th iled provisions of various modes of acquiring and termination of citizenship is explained in the Citizenship Act 1955. * By birth (x. a) By descent (s. 4) Dy registration (s. $) ation of any territory (s. 7A) zen of India Cardholders (s. 7B The Citizenship Act has been amended several times in the past years 1986, 1992, 2003, 2004, 2005, 2015, 2019. hCitizenship by Descent (Section-4) 1. Person bom outside India on or after 26" January 1950 and before 10 December 1992, shall be a citizen of India by descent, if his Father was a citizen of India by birth, the father of a person was a citizen of India by descent only, that person shall not be a citizen of India, unless— (a) his birth is registered at an Indian consulate within one year of its occurrence or the commencement of this Act, whichever is Inter. of, with the permission of the Central Government, after the expiry of the said period: or (by his father is, atthe time of his birth, in service under a Government in India: 2. Person born outside India on or after 10% December 1992, shall bea citizen of India by descent. if cther of his parents is a citizen of India by birth atthe time of his birth, either ofthe parents of @ person was a citizen of India by descent onl, that person shall not be a citizen of India, unless— (a) his birth is registered at an Tndian consulate whichever is Inter, of. with the pemnission of hin one year of its occurrence of on or after the 10th day of December, 1992, re Central Government, after the expiry of the said period: oF (b) cither of his parents is, atthe time of his birth, in service under a Government in India: Siren fam autide India on or after the commencement of the Citizenship (Amendment) Act, 2003 (6 of 2004), shall not be a Giizen of India. unless his bith is registered alan Indian consvlate in such form and in such manner, ax may be prescribed. "t PE ofts escurencs or the commencement ofthe Citizenship (Amendment) Act, 2003(6 of 2004) whichever is ater; of sion of the Central Government, after the expiry of the said period: at no such birth shall be re islered unless the parents of such person declare in such ribed, that the minor does oa form and in such manner as not hold the passport of another country. ° —Citizenship by naturalisation and Citizenship by incorporation of territory (Sections-6 & 7) 6. Citizenship by naturalisation—(1) Where an application is made in the prescribed manner by any person of full age and capacity {not being an illegal migrant) for the grant of a certificate of naturalisation to him, the Central Government may, if satisfied that the applicant is qualified for naturalisation under the provisions of the Third Schedule, grant to him a certificate of naturalisation: Provided that, if in the opinion of the Central Govemment, the applicant is a person who has rendered distinguished service to the cause of science, philosophy. art. literature, world peace or human progress generally. it may waive all or any of the conditions specified in the Third Schedule, 2) The person to whom a certificate of naturalisation is granted under sub-section (1) shall, on taking the oath of allegiance in the form specified in the Second Schedule, be a citizen of India by naturalisation as from the date on which that certificate is grante 7. Citizenship by Incorporation of territory.—If any territory becomes a part of India, the Central Government der notified in the Official Garette, specify the persons who shall be citizens of India by reason of their h that territory; and those persons shall be citizens of India as from the date to be specified in the order.Conflict of Laws in Family Disputes Matrimonial Disputes: Validity of Marriage and Divorce and matrimonial reliefs, Parentage, Custody of Children, Mentally ill persons. Validity of Marriage: Formal Validity of marriages and Essential Validity of marriages Formal Validity of marriages: Completion of all the formalities required for the marriages at the respective place- Lex Loci Celebrationis- Law of the place where the marriage was solemnized. Essential Validity of marriages: Legal Requirement. Lex domicilli- Law of domicile of the parties: There are two theories as to the applicability of governing Law of domicile regarding essential validity of marriages: 1, Dual Domicile Theory 2. Intended Matrimonial Home Theory Limping Marriage: jarriage, Same-Sex Marriage, Transexual Marriage, Polygamous Marriage, Marriage solemnized in one c hd divorce is obtained in another country.Dual domicile theory Dual domicile theory — Capacity should be determined by the domicile laws of each of the parties. The theory prescribes that a marriage is invalid unless, according to the domicile of both contracting parties at the time of the marriage, that each have capacity to contract the particular marriage. Arguments supporting this theory + Asa matter of principle, it identifies the legal system with which a Party has the closet legal connection- it is the legal system he/she has ‘belonged’ for a substantial period of his life. + Itcan be applied at least on the day that the marriage takes place, because it enables the validity of a marriage to be established prior to the ceremony. It can be used by officials concerned with administration and solemnization of marriage. + It puts the parties on an equal footing and does not prefer the husband’s law that of his wife. Disadvantage: It does not consider the laws of real home of the parties, more chances of rendering the marriage inv le to determination of validity by two separate set of laws. In certain cases, the different laws governing the acquisition or loss of domicile, se Ay bAMEPmed by the laws of a country he my have never visited.Intended matrimonial home theory The basic presumption is that capacity to marry is governed by the law of the husband’s domicile at the time of the marriage, for normally it is in the country of that domicile that the parties intend to establish their permanent home. This presumption, however, is rebutted if it can be inferred that the parties at the time of the marriage intended to establish their home and did in fact establish it there within a reasonable time. The most important advantage is that arguably marriage is an institution which most closely concerns the public policy and the social morality of the state where parties intend to live after marriage. The question of validity of marriage is therefore affected by the social, religious and other like reasons by the law of the place where partiés intend to settlé not from where they may belong. Disadvantage: * In certain circumstances it may be impossible to decide whether a marriage is valid or void at the tiy marriage if it is doubtful whether parties intend to settle at a place or not after m + Not equal, é ‘ent of parties as a normal rule husbands domicile becomes intended matrimo! ie law.Exceptions to dual domicile theory under English Law * In case of any matrimonial dispute between the parties where one of the party is domicile of England and another is of somewhere else and the marriage celebrated in England, the essential validity is governed by English Law. * Marriage celebrated abroad will be void if either of the party lacks the capacity to marry by the Law of country of celebration even if the parties have capacity by the law of their domicile. * A person whose divorce is recognised as valid under English law for making the parties free to remarry in the UK, capacity to marry in England will be governed by the English law, notwithstanding that the law of that persons domicile does not recognise the divorce as valid ang regards the previous marriage as still subsisting. ° If app/Zation of dual domicile theory is against the Public Policy, ri ied in that case.Formal and Essential Validity of marriages Case: McCABE v McCABE Court of Appeal (Civil Division) [1994] 1 FLR 410, [1994] 1 FCR 257 In this case an Irishman and Ghanaian woman were living together in London and when the Ghanaian woman became pregnant her great-uncle suggested them to marry in accordance with Akan customary law in Ghana. Both of them agreed and, as instructed by the great-uncle, the Irishman provided £100 and a bottle of gin. These were taken to Ghana where a ceremony took place at the appellant's father’s house before members of her fa . Part of the £100 was distributed to the family and some of the gin drunk as a blessing. The parties were very well intimated about the ceremony though neither was present. They continued to live together and had two children registered in each case as the Husband’s. In December 1988 they separated and the wife petitioned for divorce. The husband in answer alleged that no valid marriage had taken place.* Grounds: Formal Validity of marriage: Publicity of the marriage as formality under Ghanaian law was not completed, Essential Validity of marriages: Consent * The judge, after hearing the evidence of the parties and their witnesses and of two experts on Ghanaian law, decided that in one essential respect, i.e. publicity outside the family circle and representation of the other side by an appropriate proxy, the formalities of an Akan customary marriage had not been complied with, and consequently that a valid marriage had not been performed. * The appellant appealed against the judge's decision and the respondent cross- appealed against the judge's finding that he had consented to the marriage. * Decision: Allowing the appeal on the evidence, it was held by the appellate court that the essential components of a valid marriage under Akan customary law are the consent of each party to the marriage and the consent of each family. Publicity represented the evidence necessary to authenticate the ceremony; while the presence Proxy was neither a requirement nor a necessary formality.Essential Validity of marriages Capacity to marry: Law of Domicile: Age, Monogamy, Consent etc. Case: Bhagwan Ghanshamdas Vs. Charlotte Zingg (1959) ILR | Cal 4 A Hindu _man, whose marriage was dissolved under Hindu Marriage Act, 1955 married another woman in Sri Lanka within few months of the dissolution of the marriage. This second marriage was challenged on the ground of being violative of the then section-15 of the Hindu Marriage Act, 1955 by which prohibited a person to remarry within a year of dissolution. Held: In this case, the party lacked the capacity for the marriage which is governed by law of domicile i.e. Hindu Marriage Act, 1955 and the second marriage was held as void under the same.Smt. Satya vs. Teja Singh, AIR 1975 SC 105 Ms. Satya was married to Teja Singh according to Hindu rites. Both were citizens of India and domiciled in India at the time of their marriage. Two children were born to them and in 1959, Teja Singh went to USA for higher studies in Forestry in which he obtained a Doctorate. After becoming affluent he did not return to India but filed a tition for divorce in the court of the State of Nevada in USA which was granted to ‘im. Thereafter his wife filed a suit for maintenance in the Jalandhar Court. Teja Singh resisted the suit on the basis of divorce decree by Nevada court. Satya ceased to be his wife and hence was not entitled to maintenance from him. The trial court allowed the wife’ suit and ordered the husband to pay her maintenance, The matter then went to the High Court of Punjab and Haryana which applied the old English rule that during marriage, the domicile of the wife followed that of the husband without exception. Thus, according to the High Court, since both Teja Singh and his wifg/would be considered as domiciled in Nevada, and hence the divorce Nevada Court was valid. The matter then reached before the SupremeThe Supreme Court observed: “From 1960 to 1964 the respondent was living in Utah and since 1965 he has been in Canada. It requires no great persuasion to hold that the respondent went to Nevada as a bird-of-passage, resorted to the Court there solely to found jurisdiction and procured a decree of divorce on a misrepresentation that he was domiciled in Nevada. True, that the concept of domicile is not uniform throughout the world and just as long residence does not by itself establish domicile, brief residence may not negative it. But residence for a particular purpose fails to answer the qualitative test for the purpose being accomplished the residence would cease. The residence must answer ‘ a qualitative as well as quantitative test’, that is, the two elements of factum at animus must concur. The respondent went to Nevada forum-hunting, found a convenient jurisdiction which would easily purvey a divorce to him and left it even before the ink on his domiciliary assertion was dry. Thus, the decree of the Nevada Court lacks jurisdiction. It can receive no recognition in our Courts.” “Such decrges offend against our notions of. substantial justice. In the result we peal with costs set aside the judgment of the High Court and restore trial court.”Y. Narasimha Rao And Ors vs Y. Venkata Lakshmi And Anr(1991) 3 SCC, 451 Narasimha Rao and Venkatal Lakshmi were married at Tirupati on February 27, 1975 and they separated in July 1978. Appellant had first obtained employment in Chicago and thereafter in Oak Forest and Greenville Springs and ultimately in the Charity Hospital in Louisiana at New Orleans where he continued to be employed. The appellant Narasimha Rao filed an application for dissolution of marriage in 1978 in the sub court of Tirupati averring that he was a resident of New Orleans, Louisiana, USA and that he was a citizen of India. Meanwhile he filed another application of dissolution of marriage in the Circuit Court of St. Louis, Missouri, USA. In the petition he, besides alleging that he had been a resident of the State of Missouri for ninety days or more immediately preceding the filing of the petition, stated that his wife Alas had deserted him for one year or more by refusing to continue to Veep with him in the United States and particularly in the State of Missouri.However, from the averments made in the petition at the Sub Court of Tirupati, Narasimha Rao and Venkatalakshmi had last resided together at New Orleans, Louisiana and never in the State of Missouri. Venkatalakshmi filed a reply in the Missouri Court without prejudice to the contention that she was not submitting to the jurisdiction of the foreign court. The Circuit Court of St. Louis Country Missouri, USA, assumed jurisdiction on the ground that Narasimha Rao had been resident in the state of Missouri, ninety days before commencing action in the court. The Missouri Court passed a decree for the dissolution of marriage on February 19,1980 in the absence of Venkatalakshmi only on the ground that the marriage was ‘irretrievably broken’ and he remarried afterwards. The petition at Tirupati was digmissed as Narasimha Rao did not pursue it.° Venkatalakshmi filed a criminal complaint against him and his new wife for the offence of bigamy. They, however, argued for their discharge in view of the decree for the dissolution of marriage passed by the Missouri Court. ° The Magistrate discharged Narasimha Rao and his second wife on grounds that there was no prima facie case against them. But on revision, the High Court set aside the order of the Sub Court holding that a photostat copy of the Missouri decree was not admissible evidence. Aggrieved by the decision of HC, an appeal was filed before SC. * The SC noted that the Missouri Court had no jurisdiction to entertain the petition according to the Hindu Marriages Act 1955 (grounds for assuming jurisdiction by a court under the Act) which the parties were married. Further, irretrievable breakdown of marriage was not a ground recognized under the Hindu Marriages Act for dissolution of marriage and therefore, a decree on Ty could not be accepted as valid under $.13 of the CPC. heaNarasimha Rao had stated that he was a resident of Missouri State when records showed that he was only a bird of passage there and was ordinarily a resident of the State of Louisiana. He had, if at all, only technically satisfied the requirement of residence of ninety days with the sole purpose of obtaining the divorce. Relying on Smt. Satya Vs. Teja Singh (1975) ISCC 120, the Supreme Court said that it was possible to dismiss this case on the narrow ground that Narasimha Rao had played a fraud on the foreign court by representing to it incorrect jurisdictional facts. It had already been held in Smt. Satya ys. Teja Singh that residence did not mean a temporary residence or that which was intended to be permanent for future as well. With regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts_jn this country and is, therefore, unenforceable. The Court directed the ih. Nin ffiai2 i proceed with the matter pending before him according to law.Neerja Saraph vs Jayant V. Saraph 1994 SCC (6) 461, JT 1994 (6) 488 Neeraja Sarpah, a young Indian educated girl having with an M.A. and a B.Ed. degree to her credit was employed as a teacher was married to Jayant Sarpah, a Doctor in Computer Hardware and employed in the United States. The marriage was performed on 6.8.1989 and Neeraja was to join him after giving up her job. She ultimately resigned in November, 1989. But from December things started getting cold. And when father of appellant wrote a letter in January 1990 to the respondent-husband about the sufferings of her daughter, it did not bring forth any favourable response In June 1990, Jayant’s brother came to India carrying two letters. One was a petition for annulment of marriage in a US Court and the other was a letter from Jayant’s father expressing regret for what had happened. However, there was no offer of compensation for the wrong done to Neeraja. Necgaiy sucd Jayant and the suit was decreed in her favour for about twenty two laf OYpces.Jayant filed an appeal against this in the High Court. The High Court stayed the implementation of the decree and, subject to Jayant depositing a sum of rupees one lakh or one hundred thousand rupees within onc month of the order, permitted Necraja to withdraw 50% of the said amount. Jayant’s father expressed his financial helplessness which prompted Neeraja to appeal to the Supreme Court, The Supreme Court ordered Jayant to immediately deposit a sum of rupees three lakhs with the Registrar of the concerned High Court from which Neeraja would be entitled to withdraw rupees one lakh without any security. The remaining rupees two lakhs or two hundred thousand rupees were to be deposited in a nationalized bank in a fixed deposit. The interest accruing on it was to be paid to Necraja every month pending final decision of the High Court on the appeal against the initial money decree. The Supreme Court also stated that in case the proceedings were not decided within a reasozagle time Neeraja would have the option to move an application for withdrawal of anyAgfer amount.The Supreme Court opined that this was a problem pertaining to Private International Law and not easy to resolve but with change in social structure and rise of marriages with NRIs the Union of India may consider enacting a law like the Foreign Judgements (Reciprocal Enforcemnt) Act, 1933 which safeguard the interests of Indian woman. It also opined that, the rule of domicile replacing the nationality rule in most of the countries for assumption of jurisdiction and granting relief in matrimonial matters has resulted in conflict of laws. This yA rule is not necessary to be gone into. — Ey*The Supreme Court suggested feasibility of a legislation by incorporating certain provisions to safeguard the interests of women: *no marriage between a NRI and an Indian woman which has taken place in India may be annulled by a foreign court. ¢ Provision may be made for adequate alimony to the wife in the property of the husbands in India and abroad. ¢ The decree granted by Indian Courts may be made executable in foreign courts both on principle of comity and by entering into reciprocal agreements like Section 44-A of the Civil Procedure Code which makes a foreign decree executable as it would have Lf a decree passed by the court. EasConvention of 25 October 1980 on the Civil Aspects of International Child Abduction * The terminology of the Convention is highly offensive, labeling the removal of children from a country by their own parents as “abduction”. This misrepresents the situation when a parent (usually the mother) leaves a country with their children following divorce or separation from the other parent. The taking parent in most cases moves to another country to either protect themselves, the child, or both. The Law Commission Report No. 263 on The Protection of Children (Inter- Country Removal and Retention) Bill, 2016 acknowledges that the parents act in the best interest of the child, and they leave with the child out of over- whelming love for it, and not to harm the child. The Convention shows no recognition of the role played by domestic violence i ling a mother to go back to her country of origin. The Convention wil the effect of pushing woman back into a violent relationship in a fo land in pursuit of their children.* Under the Convention, the fate of the child hinges on the place where it was ‘habitually resident’ before it was brought to India. But this fails to take into account the needs and best interests of the child. A child’s security, happiness and welfare, are not determined by the place of its residence. * It has been observed that foreign courts and governmental authorities are biased against awarding custody to Indian parents, or to parents wishing to return to India. * SC in Nithya Anand Raghavan vs State Of NCT Of Delhi on 3 July, 2017, reversed the Delhi HC judgment. The High Court inter alia directed the mother to produce her daughter Nethra and to comply with the order dated 08.01.2016 passed by the High Court of Justice, Family Division, Principal Registry, United Kingdom (UK). Mother moved to India due to alleged violent behavior of father.Conflict of Laws and Mentally Ill Persons In modern parlance. the terms like idiot and lunatic are considered as very much derogatory. The usual terms now used are mentally ill persons, or mentally deficieAt person. All types of mental illness are not the part of our discussion because law also does’ not consider them as relevant for exemption from any liability, The discussion will be focused only in relation to those category of mentally ill the persons, who are unable to look after themselves as well as their property due to their mental illness, The question that needs the attention of this branch of Jaw in relation to these category of, persons is mainly in the situations when there are multiple connecting factors involved in the same dispute: E.g.:, When such person is present in or is domiciled in some other count has some ancestral property in some other country and the question is the appointment of his guardian or curator of his property. Which il) have jurisdiction in such matters and how the orders passed by the f one country can be executed in another country?Management of property of mentally ill persons in India UN Convention on the Rights of Persons with Disabilities and its Optional Protocol, 2006. It was opened for signature on 30th March 2007 and came into force on 3rd May, 2008. India is a signatory to this Convention and in order to bring the national and local mental laws in adherence to the provisions of this Convention it repealed the Mental Health Act, 1987 and the Persons with Disabilities (Equal Protection of Rights and Full Participation) Act, 1995. Currently the provisions relating to the jurisdiction and management of property of the persons with mental illness are covered under the Mental Healthcare Act, 2017 and Rights of Persons with Disabilities Act, 2016.International Position There is only one international convention on this subject ic. the Hague Convention on international protection of Adults 2000. The Convention is similar,in its structure to the Convention on Jurisdiction, Applicable Lav, Recognition, Enforcement and Co-operation im respec of Parental Responsibility and Measures for the Protection of Children 1996 but has been adapted to meet the specific needs of vulnerable adults. It provides rules on jurisdiction, applicable Jaw and international recognition and enforcement of protective measures. The Convention also establishes a mechanism for co-operation between the authorities of Contracting States. The Convention applies to “the protection in international situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests. An adult is defined as a person who has reached the age of 18 years; however, the Convention also apples to measures of protection, taken in respect of an q who had not reached the age of 18 years at the time the measures wereManagement of property of mentally ill persons in India UN Convention on the Rights of Persons with Disabilities and its Optional Protocol, 2006. It was opened for signature on 30th March 2007 and came into force on 3rd May, 2008. India is a signatory to this Convention and in order to bring the national and mental laws in adherence to the provisions of this Convention it repealed | Health Act, 1987 and the Persons with Disabilities (Equal Protection of Rights and Full Participation) Act, 1995. Currently the provisions relating to the jurisdiction and management of property of the persons with mental illness are covered under the Mental Healthcare Act, 2017 and Rights of Persons with Disabilities Act, 2016.Position under UK and Indian Law UK Law The Mental Health Act, 1983 Jurisdiction of English Courts: English courts exercise jurisdiction in cases where such person is in England or has some property in England. Recognition of Orders of Foreign Courts: As discussed above that the English courts exercise jurisdiction in ‘cases where such person is in England or has some property in England and likewise it recognized the orders of only those legal systems which exercises jurisdiction on the same principle. Indian Law The Lunacy Act, 1912 was the earlier legislation whi also repealed by the Mental Healthcare Act, 2017. th was repealed by the Mental Health Act, 1987 and it is There is not even a single decision on the effect of a foreign order appointing a guardian or curator or the power of such persons over the property situated in India. High Courts have wide power to intervene and they do so in such matters under the inherent power of the courts,The question before an English court was regarding the way in which the movables of X were to be distributed, a spinster who died intestate. X’s father was born in 1835 in Ireland, a part of the Great Britain then, but at the age of 22, he moved to India and except for various visits to Europe, lived there without having applied for a domicile, died in Calcutta in 1885. X was born in India in 1860, from 1867 to 1890, she lived in various places in England, Germany and Spain. But in 1890, she settled down in Naples, Italy and resided there without applying for a domicile, until her death 47 years later in 1937. She could never lose her British nationality though. Given the following situations, answer the questions below: Conflict of law rule for movable property in UK, India and Ireland is Law of domicile and in Italy is law of Nationality respectively. Ireland, India and Italy do not accept renvoi. UK follows double renvoi. Republic of Ireland separated from Great Britain in 1949, * Assuming the position of a Judge in English Court, adjudicate on the issue giving reasons for your answer. You must support your answer with cases. + What would be the judgment of an Italian court in this case? Give reasons for your answer.* A was domiciled in New York, in 1986, he moved to London for an unspecified indefinite period. Before moving to London, he sold his house and other movables in it and stated his willingness to change his domicile to another city. Later on, in 2005 he wrote to his real estate agents in Boston to find him a house and expressed his willingness to permanently settle there. However before he could return, he died in London, intestate. The administrators of his estate took out letter for distribution of his property in New York which was challenged in the New York Court by some petitioners, who would have gained a share in his property. The petitioners relied on the argument that A was a domi of Boston at the time of his death as he had made such expressions and the property should be distributed according to the laws applicable in Boston. The court dismissed the petition and applied New York laws. Was the court right or wrong in doing so? Give reasons in support of your answer.Conflict of Laws in Torts In Common law torts means civil wrongs to a person, to property, or to a person’s reputation, for example, negligent acts causing injury or death, conversion, trespasses to property and defamation. Conflict of laws problems can arise in the field of torts in a number of situations. To take just two examples, the problem can arise if the act causing injury is committed outside the country and proceedings are brought in the country, or if the act is committed outside the country but the effect of the act is experienced in the country. Two systems of law can, in theory, be chosen as the applicable law in a case of tort, the Jex fori, and the /ex /oci delicti commissi but either of the solutions are not wholly satisfactory, However in most of the situations, the application of the /ex loci delicti commissi is the fairest SjInternational Conventions General: + The Hague Convention on the Law Applicable to Traffic Accidents 1971 + The Hague Convention on the Law Applicable to Product Liability 1973 Conventions on Maritime Law: * Brussels Convention on the Unification of Certain Rules in Respect of Collisions 1910 + International Conventions on the Limitation of Liability of Maritime Claims 1976 Conventions Relating to Oil Pollution: + International Convention on Civil Liability for Oil Pollution Damage 1992 * Intern al Convention on the Establishment of an International Fund for Compensation for Of@llution Damage 1992Position in England under Common Law Under Common Law, it was settled principle that a tort committed outside England was actionable if the act was wrongful at both the places i.e. where it was committed and under the English law as well. English Law was, however, radically altered by the enactment by Parliament after the enactment of Law Reform (Miscellaneous Provisions) Act 1995, under which different choice of law rules were introduced. General Rules laid down in the case of Phillips v Eyre (1870) LA 6QB I, pp 28- 29: As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in Englgad; ...Secondly, the act must not have been justifiable by the law of the place ‘1 was done.‘ Statutory Reform in England The problem created by the Common Law regarding choice of law in the case of torts was resolved with the enactment of The Law Reform (Miscellaneous Provisions) Act 1995. The general rule for the choice of law in the Act is that the law applicable is the law of the country where the ‘events’ constituting the tort occur; and if such events occur in different countries, the law to be applied is: (a) For a cause of action in respect of personal injury caused to an individual, or death resulting from personal injury, the law of the country where the person injured was when the injury took place; (b) For a cause of action in respect of damage to property, the law of the country where the property was when the damage took place; (c) In any other case, the law of the country in which the most significant element or elements of those events occurred. ys general rule may be displaced if it is found in a given case, after a comparison of the facto! necting a tort with the cou whose law is to be chosen under the general rule, cand ‘tors; connecting the tort with another country, that it is ‘substantially more ta’ ¢o determine the latter as the applicable law; in such cases, that law may be ——_—_,Poplar v. Bourjois. Inc. (298 N.Y. 62, 67) * Aday or two after Christmas, 1940, as Myrtle Poplar was showing her sister perfume: and cosmetics which her husband had given her, she pricked her finger on the point o a silvery metal star that adorned the gift box in which they were contained. A seriou: infection developed, she became gravely ill, and the infected finger had to be amputated. Following an unsuccessful suit in Maryland for breach of warranty against the Baltimore department store where the article had been purchased, she filed < suit against Bourjois, Inc. to recover for her injuries for the loss of her services and for medical expenses before the Supreme Court , Appellate Division, New York City.. * Bourjois was a producer of perfumes, cosmetic: bought a large quantity of boxes from L manufactured them according to the former's s} claimed that defendant Bourjois' carelessness rendered the and limb". For its part, Bourjois denied the charge of negli eider, charging it with liability over, sand kindred articles. In 1940, it orscheider Schang Co., Inc., which pecifications. article "dangerous igence and impleadecCourt applied the law of the place where the wrong occurred — that is, plaintiff was injured and the harmful force took effect — in the State of Maryland. Law provided that no recovery may be had against manufacturers for injuries caused to third persons with whom they have no direct dealings unless they are “manufacturers or compounders of articles or substances which in themselves are imminently and inherently dangerous" when defectively made. As a general proposition, liability for negligence turns upon the foreseeability of any harm resulting from the careless conduct, not upon the foreseeability of the exact nature and extent of the injury which does in fact ensue. if Bourjois owed a duty to ultimate purchasers and could be held liable to plaintiffs for marketing the box in a defective condition, it would likewise be liable for all the proximate results of its negligence, including infection and amputation of the finger. It would be legally inconsequential that the amputation was less clearly to be foreseen than a simple scratch or pin prick. urjois box may not be regarded as inherently dangerous, a menace to health and life.In so acting, the court of appeals applied the law of the state of New York, thus deviating from the traditional choice of law rule governing torts. In lieu of the traditional rule, the court adopted the "center of gravity" or "grouping of contacts" theory, which requires the court of the forum state to examine the contacts which each of the involved states have with the parties, and also the effect which the litigation of this particular legal issue will have in the respective states. The court of the forum must then apply the law of that state which has the most "significant” contacts or relatiBabcock v Jackson 12 NY2d 473 (19630 * The plaintiff, the defendant, and the defendant's wife, all residents of the city of Rochester, New York, had started from Rochester in defendant's automobile on a trip which was to take them through Ontario, Canada. In Ontario, with the defendant driving and plaintiff a passenger, the automobile went out of control and crashed into a stone wall. The plaintiff suffered serious personal injuries as a result of this car accident. * Upon return to New York state, the plaintiff instituted suit to recover damages for her personal injuries. While the action was pending, the defendant died from injuries received in the accident and his executrix was substituted. The plaintiff claimed that the defendant was negligent in the operation of his automobile. The defendant moved to dismiss the complaint on the ground that the i ‘ute barred recovery. Since New York law did not bar recovery, question was presented.* "the owner or driver of a motor vehicle, other than a vehicle operated in the business of carrying passengers for compensation, is not liable for any loss or damage resulting from bodily injury to, or the death of any person being carried in the motor vehicle" (Highway Traffic Act of Province of Ontario [Ontario Rev. Stat. (1960), ch. 172] The New York Supreme Court granted the defendant's motion and dismissed the complaint on the basis of Ontario law, thus applying the traditional rule that the place where the tort occurred governs choice of law questions concerning torts. The irmed, but the court of appeals reversed the isionIn so acting, the court of appeals applied the law of the state of New York, thus deviating from the traditional choice of law rule governing torts. In lieu of the traditional rule, the court adopted the "center of gravity" or "grouping of contacts" theory, which requires the court of the forum state to examine the contacts which each of the involved states have with the parties, and also the effect which the litigation of this particular legal issue will have in the respective states. The court of the forum must then apply the law of that state which has the most "significant” contacts or relati= _ Determination of properliw= inoue » When a case comes before a court & all the main features of the case are local, the court will apply the lex fori, ie., the prevailing municipal law, to decide the case. But if there are foreign elements to the case, the forum court may be obliged under the conflict of laws system to consider: v Whether the forum court has jurisdiction to hear the case ¥ The forum court then characterizes the legal issues in the case & allocate it to relevant legal classes / Then apply the choice of law to decide which law is to be applied to each class. Az...International conventions on determination of proper law of contract » The Hague Convention on the Law Applicable to International Sales of Goods (the Hague Convention) 1955 » The Rome Convention on the Law Applicable to Contractual Obligations (the Rome Convention) 1980 » The Vienna Convention on Contracts for the International Sale of Goods (the Vienna Convention) 1980 » Conventions on the International Contracts for the Sale of Goods « The United Nations Convention on International Contracts for the Sale of Goods 1980. + The Hague Convention on the Law Applicable to International Contracts for the Sale of Goods 1986 * The UNIDROIT Convention on Agency in the International Sale of Goods. ee inciples on Choice of Law in International Commercial Contractsin Meaning of ‘Proper law’ Proper law of the contract means the law chosen by the parties, the choice being either expressly made in the contract or to be inferred from the terms & nature of the contract, & if no choice could be inferred, then choosing the law with which the contract had the closest or real connection. Az...— a Implications of proper law » Ifacontract is valid where it was made, it is generally valid everywhere ~ Ifa contract is void where it was made, it is void everywhere » The agreement will not be valid in the forum country if it violates the law of the forum country Ifa contract is made in one state but its contents specifies that it is to be carried out in another state, two places come into significance:E Old or classical approach for determination of proper law of contract In an attempt to resolve the above multiplicity of issues or connecting factors, various theories have were propounded. © The earliest theories are the Lex loci contractus or the law of the place where the contract is made, this theory gave birth to lex loci solutionis or the law of the place of performance of the contract. © This system prevailed in the USA reflected in Restatement 1 which was later replaced with proper law of contract. ° Where the two theories produced a road block to finding a solution, intention pf the parties was applicable.Issues with traditional approach » Intention of the parties regarding choice of laws. Party autonomy has no role to play. » Goes against modern approach of choice of law based on most significant connection with the transaction test. © Proposes choice of laws based on two systems of laws which may render the contract invalid. |Importance of determination of proper law of contract pe © It is of great importance for the parties to know what law governs the contract that they have made, because the law (for example, of sale and agency) differs from country to country. Even where it is clear that the applicable law is that of another county, the contents of that law still have to be proved to the judge in the ordinary way by expert witnesses or some other admissible evidence. © It is often very difficult to decide whether a particular contract is to be governed by the law of one country or that of another. For example, a contract to work for a French employer in France may be made in England; IS FRENCH OR ENGLISH LAW TO APPLY?: If the contract states clearly that-one or-either of the coniictinge -prevail, this will be prima fide evidence that the law mentioned is to govern the contract; but if no such clause is included, the Court will endeavour to ascertain the intention of the parties, and effect will be given to that intention as far as possible. The law intended by the parties is often referred to as The proper law of the contract’. This must not be confused with the expression ‘forum’, which refers to the place where jurisdiction would be exercised in a particular case. For example, where a Japanese person is sued in England on a contract made in Italy which provides that German law would apply, the forum/place is England, whereas the applicable/proper law would be that of Germany. In very simple words, in the circumstances of this example, an English Court will hear the case, and will applyerman law to resolve the contract dispute.j PROPER LAW OF CONTRACT — MODERN APPROACH The proper law doctrine, according to the Halsbury's Laws of England, is determinable in the three ways, namely (i) _ by express selection by the partie: (ii) by inferred selection from the circumstances; or (iii) by judicial determination of the system of law with which the transaction has the closest and the most real connection. The following factors are considered by the Court when deciding this issue: The place or places of making the contract; » The place or places of performance of the contract; The connection of the parties with the countries; The situs of any immovable property which is the subject matter of the contract; The country where the ship is registered, on which the goods are to be carried; and The currency in which money due under the contract, has been paid._———E \ ‘OR THE INT! — SALE OF GOODS (CIS The CISG is a hard-law instrument applicable to the international sale of goods. It is binding on parties, judges and arbitrators when the conditions set out in the instrument itself, and particularly in its article 1, paragraph 1, are met. When is a sale International? - A sale of goods is defined as “international” when the contracting parties have their places of business in different States. If parties have more than one place of business, the place of business is that which has the closest relationship to the contract and its performance. No other test, for example, regarding the nationality of the parties or to the civil or commercial character of the parties or of the contract is required to determine the internationality of the sales contract.Applicability of the CISG to International Sales (Article 1 paragraph 3) — two ways in which the CISG applies directly to international sales contracts: (a) when the parties’ respective places of business, as determined under the CISG, are in different contracting States; and (b) when PIL rules lead to the application of the law of a contracting State. The latter case includes situations in which the law of a contracting State applies because the parties have selected it in the contract. International sales contracts may fall outside the scope of the CISG when ~ a. the type of sales contract is not covered under the Convention (art. 2) or b. in the case of “mixed contracts”, in which the provision of labour or services is predominant (art. 3) c. Article 6 - Opting outConvention © 1, Article 2, paragraph (a) - Consumer goods sold for personal, family, or houschold use: It relates to sale of goods to buyers who acquire them for personal, family, or household use; in most countries, such sales are characterized as consumer transactions and are governed by specific rules, often of a mandatory nature, © 2. Article 2, paragraphs (b) and (c) - sales by auction or on execution or otherwise by authority of law: It may raise issues regarding the formation of the contract and the seller's consent. 3. Article. 2, paragraphs (d)-(f) - based on the nature of the goods: sales of shares and other securities, as well as money, sales of ships, vessels, or aircraft, and contracts for the sale of electricity, are excluded from the scope of the Convention, However, the supply of gas and oil and other energy sources are not excluded from the scope of the CISG by article 2 © 4. Assembly contracts for the supply of goods to be manufactured or produced wherein the buyer provides a “substantial part of the materials necessary for such manufacture or production” » 5. Mixed Contracts where provisions of labor or other services are predominant.(Article 3) © 6. Contracts imposing liability on the seller for death or personal injury caused by the goods. (Article 5) » 5. Contracts where the parties specifically agree to “opt out” of the convention or where they choose to be ound by some other law. (Article 6) * Note - Consumer sales were excluded from the CISG because consumer protection laws are so specific to every country that it would have been very difficult to harmonize them. Further, consumer sales are usually domestic in nature. awiting What matters are governed by the CISG?> Article 4 - the CISG governs two of the most important matters that arise in contracts of sale of goods - (a) whether and when a contract has been concluded. (b) the rights and obligations of the seller and buyer arising from the contract. Domestic law notions such as consideration are not relevant for the CISG. Rights and obligations of third parties are not governed by the CISG. Not concerned with validity of contract(art. 4, para. (a)). Under the CISG, validity is to be distinguished from formation of the contracts. the effect of the contract on the property in the goods sold (art. 4, para. (b)). The question of how and when the property passes from the seller to the buyer is to be decgled by the applicable domestic law.y the parties = Inyorder-to.ac Emphatic Unambiguous Bona fide Legal and not opposed to public policy. Implies that the selected legal system will be valid even in cases the law chosen has no significant connection with the contractual transaction or formation. Syy inferred sele © Supreme Court in National Thermal Power Corporation vs Singer Company, 1993 AIR 998, Quoted with approval Dicey Rule laying down the proposition that in the absence of any express statement about the governing law, the inferred intentions of the parties determine that law. © The intention of the parties has to be discovered based on sound idea of business, convenience and language of the contract itself. For example selection of some specific jurisdiction for resolution of disputes arising out of a contract can be an indication by the parties of the system of laws followed by those courts.. © Supreme court laid down in British India Steam Navigation Co Ltd vs. Shanmughavilas Cashew Industries, 1990 SCR (1) 884, that parties by their act had submittedf®the jurisdiction of the Indian Courts but not to the choice of law clause aygfff-blc as under the Bill of Lading, therefore applicability of Indian e circumstances;Continued..... » Ifno choice had been made by the parties, the law to be applied is the law with which the contract has the most real and substantial connection. (Delhi (Cloth & General Mills Co. v. Harnam Singh, AIR 1955 SC 590.) » Parties can select different systems of law for different parts of a contract, that is, * 1, one to govern their right and obligation, * 2. another to govern any arbitration that may arise between them, and ° 3. the third for procedure for such arbitration.Continued. The term ‘proper law’ was clearly defined in Indian General Investment Trust v. Raja of Kholikote (AIR 1952 Cal 508) as: 1. “the proper law of contract means the law which the court is to apply in determining the obligation under the contract’. 2. In deciding these matters, there are no rigid or arbitrary criteria such as lex loci solutionis or lex loci concratcus. 3. The matter depends on the intentions of the parties to be ascertained in each case on consideration of: a) the terms of the contract, b) the situgfion of the parties and generally on c) all surrounding facts from the Intention of the parties is to be gathered.”Indian position on proper law of contract There is no statute on the subject of choice of law in contracts in India. Indian courts follow and apply the Common law rules relating to the proper law of a contract. It has been observed in British Indian Steam Navigation Co. Ltd v. Shanmughamavilas Cashew Industries (1990) 3 SCC 481 by the Supreme Court that the law so chosen must, however, have some connection with the contract,’ but there was no such qualification made in a later decision [National Thermal Power Corporation v. Singer Company 1992 (3) SCC 551](in which the Court cited with approval Vita foods Inc. v. Unus Shipping Co. Ltd,) and stated that ‘the choice must be accepted if it was bona fide and not opposeyto public policy’“Conflict of Laws relating to Wills Conflict of Laws in cases of wills comes into picture when the dispute attracts multiple connecting factors like, testator was national of some another country, domiciled in some another country, habitual resident of some third country, will was made in some different country and finally died in some another jurisdiction. There are certain principal questions, which the courts face in such dispute as, did the deceased have capacity to make the will? Which law will determine the validity and interpretation of the will? In England and some other common law countries including India, a distinction is usually made between succession to movables which is governed by /ex domicilli and succession to immovables are governed by the /ex situs (Sankaran Govindan Vs, Lakshmi Bharathi AIR 1974 SC 1764). In many systems of Law there is no such distinction, and a unified system is now applieggto all the properties of the deceased i.e. to accommodate the wishes of the up to a greater possible extent.International Convention on Wills The Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions, 1961: This Convention was concluded to establish common provisions on the conflicts of laws relating to the form of testamentary dispositions. The Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons, 1989: It clarifies succession law for those who have important connections with more than one country. It provides choice-of-law rules for intestacy, and, for those who write wills, it specifies the testator's permissible choice of law. The UNIDROIT Convention on providing a Uniform Law on the Form of an International Wills, 1973: The states and countries adopting the Treaty agree to recognize the validity of Wills executed in other states or countries that have adopted the Treaty as well, provided that the Will complies with the requirements of the Treaty. The Treaty is broken down into 16 articles — which entails the process that thf contracting parties (the countries and states) need to undertake. not implemented any of these conventions.Indian Position on Conflict of Laws relating to Wills Law regulating succession (0 deceased person's immoyeable and moveable property, respectiv (Section 5): Sucvession to the immoveable property in India, of a person deceased shall be regulated jaw of India, wherever such person may have had his domicile at the time of his death. prepeny ofa person deceased is eee by the law of the h. Illustrations his domicile at the time of his deat jomicile in ‘[India], dies in France, leaving moveable property in France, . . | property d immoveable, in ‘[India]. The succession to the cession to the moveable avhich such person ha »raperty, both moveable an iby the law of India. jan, having his domicile in France, dies in [India], and leaves property, moveable an IndiaJ. The succession to the moveable property is regulated by the 7 in France, the succession to the moveable property of an English }) France, and the succession to the immoveable property is regulated |Conflict of Laws in Corporations Important Connecting Factors in any conflict of law dispute relating to corporations: * Domicile of a corporation — place of incorporation ° Residence of a corporation — central management and control is situated * Status of corporation — incorporation, existence, dissolution — law of place of incorporation. Well settled principle, Indian courts cannot have jurisdiction on any of the above matters if place of incorporation outside. * Capacity and rules regarding internal management of corporations - law of place of incorporation. ¢ Winding up of a foreign company — + ‘There is sufficient connection between company and the assets of companies in India. + If reasonable possibility of benefit to those who have applied for winding up. + If one or more than one person interested in the distribution of assets of the company over whom the courts can exercise jurisdiction. oe bs* Domicile of juridical person +The issues related to the domicile of legal persons can be even more complicated than for natural persons. Companies today operate in ways that can make it very difficult to determine nationality. * It is quite common that a company can be established under the laws of country A, have its centre of control in country B and do its main business in country C. ribunals/courts have usually refrained from engaging in substantive investigations of a company’s control and they have usually adopted the test of incorporation or seat rather than control when determining the nationality of a juridical person. * There should be legal personality * Most commonly used criteria is incorporation or the main seat of business. + Tribunals/courts refuse to lift corporate veil where incorporation is the criteria.Position in India * Companies Act 2013 * Foreign companies can sue and can be sued in India, if courts have jurisdiction, Foreign companies which have established a place of business in India are required to register under the companies Act and designate a person and a place for service on the foreign company. + For tax purposes — residence of company under Income tax Act 1961, Section 6(3). S (3) A company is said to be a resident in India in any previous year, if— (i) itis an Indian company; or (ii) its place of effective management, in that year, is in India. Explanation —For the purposes of this clause "place of effective management” means a place where key management and commercial decisions that are necessary for the conduct of business of an entity as a whole are, in substance made. * Disputes of business and contractual obligations, terms of contract, closest connection test.Indian Position on Conflict of Laws relating to Wills Law regulating succession to deceased person's immoveable and moveable property, respectively (Section 5): (1) Succession to the immoveable property in India, of a person deceased shall be regulated by the law of India, wherever such person may have had his domicile at the time of his death. (2) Succession to the moveable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death. Illustrations (i) A, having his domicile in [India], dies in France, leaving moveable property in France, moveable : ; property in England, and property, both moveable and immoveable, in [India]. The succession to the whole is regulated by the law of India. (i) A. an Englishman, having his domicile in France, dies in '[India], and leaves property, both moveable and immoveable, in "[IndiaJ. The succession to the moveable property is regulated by the rules which govern, in France, the succession to the moveable property of an Englishman dyin; domiciled in France, and the succession to the immoveable property is regulated by the law of India. =* Conflict of Laws in Property Property is classified as movable and immovable in conflict of laws all over the world. 1, Immovable Property: Contracts Relating to Immovable Property, Matrimonial Property 2. Movable Property: A, Tangible Movable Property: Negotiable Instruments, Stolen Antiquities and Objects of Art, Finder of goods , International sales of goods B. Intangible Movable Property: Simple debts, Certain categories of shares and bonds, Assignment, Assignment of a trust fund, Mere Right to Sue, Copyright, Garnishee Orders The law that determines whether a property is movable or immoval ‘ ble is the law of the place where the property is situated. It is for the lex fori to determine the situs or location of property. =Conflict of Laws in Immovable Property The general rule is that all questions that arise relating to immovable property situated abroad are to be determined by applying the /ex situs. This rule is based on the fact that applying any other system of law may be ineffective if the situs does not recognize the rights created by that other system. The only exception to this general rule is that some purely contractual situations which can be determined by the /ex fori where the order of the court can be made effective against the defendant in personam. There appears to be no international convention on this subject. As the choice of law depends upon the situs of the property therefore application of Renvoi becomes necessary in such cases.English Position & Indian Law on Immovable Property English Position: As a general rule All rights over, or in relation to, an immovable(land) are governed by the law of the country where the immovable(land) is situated. Nature and Incidence of Rights in Immovable Property are also governed by Lex Situs. The general rule of Lex Situs does not apply to the purely contractual aspects and they are governed by the proper Jaw of the contract. Matrimonial Property: Another exception to the general rule that all matters relating to foreign immovable property are to be dealt with by lex situs is to be found in the case of matrimonial property. Case: Holmes Vs Holmes [1989] 3 All ER 786 (CA) Indian Law: Indian Courts follow the Common Law rules relating to both i.e. Transfers as well as contracts relating to immovable propertyjegotiable Instruments ' F ; nd fInternational Convention: United Nations Convention on International Bills ee Ln Pf International Promissory Notes (Framed by UNCITRAL): To bring uniformity in International Bills of Exchange and International Promissory Notes Hosition in Eugland: Bills of Exchange Act 1882 Hfesition in India: Sections 104, 135, 136, 137 of the Negotiable Instrumeits Aci 1881 & Recommendations of the Law Commission of India tolen Antiquities and Objects of Art Huternational Conventions: 1. International Convention on the Means of Prohibiting and Preventing the Hist Import, Export aud Transfer of Ownership of Cultural Property 1970 (Adopted by UNESCO): Ninety-two countries, including Canada and the United Kingdom have signed the convention, some with 5 Bf India does uot appear to have done so. 3. The Convention on Stolen or Illegally Sapeaay Oviects 1995 (Adopted by UNIDROIT): Twelve countri ade fad Tadin docs at appear MU DROID: Twelve countries appear to have adopted