PRIVATE INTERNATIONAL LAW

STUDY MATERIAL: MODULE II

An analysis Choice of law or conflict of law

The terms ‘conflict of law’ and ‘choice of law’ are often used interchangeably in cases where a
dispute spans over two different jurisdictions. In India, the ‘choice of law’ principle is commonly
referred to as the ‘Indian Private International Law’.

In Indian private international law, parties are given the autonomy to choose the law they want to
apply, restrictions to choice, choice of law of parties may be expressed or implied, pre-
determined in nature and thus takes care of future disputes, avoids uncertainty and ambiguity.

Indian private international law is the law that is usually relied upon in deciding cases involving
foreign parties with conflicting laws from the Indian legal system. Under this law, both the
parties are given the autonomy and freedom to choose beforehand, while the contract is being
formed itself, which law they want to apply to settle any future dispute which may arise. The
choice made by the parties can be an expressed choice or an implied choice which will be
discussed below. However, there are certain restrictions which the parties must adhere to while
agreeing upon the law to be used to settle their disputes. These restrictions include the mandatory
rules of the domestic law governing the country where the dispute arises, the law of the country
with which the contract is most closely connected to the centre of gravity (the country in which
the elements of the contract are most closely grouped whose interests and policies are most likely
to be affected by the contract) and the convenience and business efficiency.

Expressed choice

An expressed choice quite literally means that the parties clearly state in writing the law they
intend on following in case of any future dispute in the agreement or contract itself.

Implied choice

From the explanation of Lord Simonds in his judgment in the case of Bonython v.
Commonwealth of Australia (1951), an implied choice can be defined as ‘the system of law by
reference to which the contract was made or that with which the transaction has its closest and
most real connection’.
In certain instances, the implied choice of the parties can also be ascertained by the courts if the
contract contains an arbitration clause. This is also known as the Choice of Forum.

When parties themselves have not decided on the choice of law

When the courts of law conclude that there is an absence of an expressed or implied choice from
the parties themselves in a contract, the onus of responsibility in deciding which law to apply
rests in their hands. In these circumstances, the courts adopt two approaches, the objective and
the subjective approach.

 The objective approach is where the courts reach a concrete conclusion, after a
thorough analysis of the contract that there has been no choice expressed or implied.
 The subjective approach is when the courts take into account the hypothetical will of
the parties and through this lens try and arrive at a law which they have reason to
believe the parties would have chosen as their choice of law.

Law of the country with which the contract is most closely connected

In the case of disputes arising in the field of contracts, the courts of law were of the opinion that
the solution to the question of the choice of law would be to apply the law of the country with
which the contract is most closely connected. This is decided by the courts based on the
following parameters-

1. The place or places of making the contract

2. The place or places of performance of the contract
3. The connection of the parties with the countries
4. The situs of any immovable property which is the subject matter of the contract
5. The country where the ship is registered, on which the goods are to be carried
6. The currency in which money due under the contract, has been paid
Despite these points of consideration, further questions can arise due to a conflict between the
interests of the parties and the interests of the country whose law is being applied (the governing
law). The final law that is to be applied to settle the dispute must be in the best interests of the
parties to the contract as well as the best interests of the country whose law is to be applied.

Forum shopping or choice of forum

Forum shopping or the plaintiff’s choice of forum is a process commonly practised in the USA
and is becoming an area of concern discouraged by the courts of law. In the federal system, each
state is governed by different procedural laws and sometimes even different substantive laws.
Thus, certain issues come under concurrent jurisdiction which means that the issue can be
resolved by more than one court, all equally competent in exercising their jurisdiction over the
issue. Thus, the plaintiff uses this choice available to him/her to his/her advantage and brings the
issue to that court which is likely to produce a verdict that will be most beneficial to the plaintiff
and most deleterious to the defendant. The factors governing the choice of forum vary and can
even include the kind of jury, whether local or federal, whichever is more likely to have a
favourable impact on the plaintiff.

Erie doctrine

The Erie doctrine is another factor that encouraged the process of forum shopping. Derived from
its namesake in the case of Erie Railroad Co. v. Tompkins (1938), this became a binding
principle by which federal courts which exercised diversity jurisdiction (wherein the plaintiff and
defendant belonged to different states) had the power to apply both federal procedural law as
well as the state substantive law. This gave the courts unfettered power to exercise whichever
law they chose whenever they saw it convenient which gave rise to arbitrary and unfavourable
judgments.

Private International Law vs. Conflict of law

A common definition of the above terms given by Professor Emeritus I.O Agbede has been
described as ‘physics of the law’ because it is concerned with the application of the law in space
and time. It is that part of the private law of a country that deals with cases having a ‘foreign
element’. These two terms are often used interchangeably in the sense that the term ‘conflict of
law’ is used by common law countries such as the USA, Canada, England, and Australia,
whereas the term ‘private international law’ is used by civil law countries such as France, Italy,
and Greece.

Three branches

The three branches which form the basis of conflict of law are-

Jurisdiction

This deals with the question of whether the court or forum to which the dispute is brought
exercises the competent authority or has the power to decide the case at hand. The five bases of
jurisdiction that are generally recognized in the case of international law are as follows-
 1. Territoriality- This is the strongest principle governing jurisdiction which states that
every country has the right to regulate and exercise power over all issues occurring
within its territorial borders.
2. Passive personality- A country is empowered to have jurisdiction in occurrences that
have led to the harm of its people or nationals.
3. Nationality/ active personality- When the country’s national self is the perpetrator of
any occurrence causing harm, that country is obligated to exercise its jurisdiction to
punish the wrongdoer.
4. Protective- A country has the right to exercise jurisdiction to protect its country from
all threats to its security.
5. Universal- The most common jurisdiction, which has been mentioned in this article is
universal jurisdiction by which a country has jurisdiction over certain acts based on
their intrinsic rejection by international communities.

Choice of law

After the court has proved that it exercises appropriate jurisdiction to handle the case at hand, the
next question that arises is which law is most suited to be applied to settle the dispute. The two
main components that govern the choice of law in a situation are as follows-

1. Lex fori- This refers to all the procedural matters governing the choice of law,
including the rules to be used to settle a particular issue.
2. Lex patriae- This refers to the nationality or habitual residence of the plaintiff
according to which the court will decide which law of which state is to be applied to
settle the dispute at hand.
For example, suppose a dispute has arisen between two individuals A and B, both belonging to
different countries. If A is the plaintiff and brings the case to a court in his own country, B can
challenge this action because B lives outside the jurisdiction of the court in A’s country. Once
the court of A’s country proves that it is competent to exercise jurisdiction over the matter, it
needs to decide whether it should follow the law governing A’s country or B’s country to solve
the dispute. These two options which the court needs to choose between is known as the choice
of law. According to lex fori, the court can apply either A’s country law or B’s country law.
According to lex patriae however, the court would have to apply the law of A’s country as A is
the plaintiff in this case.
Enforcement of foreign judgment

In certain instances where there exists no domestic law which can be applied to settle the dispute,
the court can, if it is within its jurisdiction to do so, recognize and enforce any judgment from an
external or foreign forum to the case at hand.

There are multiple types of foreign judgments which can be applied. Some examples are
judgments that concern bilateral or multilateral treaties or understandings or even unilaterally
agreed to treaties that do not contain an express international agreement.

Governing clause and jurisdiction clause

Governing clause

This clause is used to determine the legal rights and obligations of the parties, or in other words,
it deals with the substantive law which is to be applied to aid in the interpretation of a contract or
an agreement. It merely determines the law but contains no information on the procedure which
is to be used to apply such substantive law.

Jurisdiction clause

This has the effect of procedural law as it determines all the procedures which are to be followed
to settle a dispute, both to commence the proceedings as well as during the trial. It is also used to
determine which process of dispute resolution is to be adopted. For example, expert
determination, settlement by courts, or arbitration.

Domestic context – Indian Private International Law or Choice of Law

Indian courts also respect the choice of law principle as stated above and allow the applicability
of the governing law in place of local Indian law. However, similar to what was mentioned
above, there are a few caveats in the extent of applicability of a governing law that differs from
Indian law. The foreign law cannot derogate from the mandatory and overriding provisions of
Indian law nor can it conflict with Indian public policy as this would invalidate the conflict
entirely. The courts in India also use the expressed and implied choices in a contract to decide
which law applies to the case at hand.
Examples of case laws in Indian jurisprudence

Dholi Spintex Pvt. Ltd. v. Louis Dreyfus Company India Pvt. Ltd. (2020)

The issue, in this case, was whether an arbitration agreement between two parties is an
agreement that is independent of the substantive contract. The Court in this case laid re-emphasis
on the principle of non-interference of the Indian courts of law in matters of international
arbitration as Indian parties have every right to choose a foreign law as the law governing the
arbitration between them.

To answer the question at hand, the Court ruled that ‘an arbitration agreement/ clause does not
govern the rights and obligations arising out of the substantive contract and only governs the
manner of settling disputes between the parties.’

Rhodia Ltd. v. Neon Laboratories Ltd (2002)

The issue that arose, in this case, was whether contracts using a foreign choice of the law were
valid under Indian law and whether the opinion of the foreign law could be relied upon in
determining whether an Indian Court had jurisdiction in a particular matter related to the same.

The Court held that the application of choice of law is dependent on the question of law which
the parties choose to apply and not when a question regarding their nationality arises. Thus, it
was held that two Indian parties can indeed choose a foreign law to govern their contract. As
long as the law in question is bona fide in nature, it can be applied to the case at hand.

Ssangyong Engineering & Construction Co. Ltd. v. National Highways Authority of India
(NHAI) (2019)

In this case, the Supreme Court of India stated that in cases where an agreement is found to be in
contravention of the ‘fundamental principle of justice… prevalent concepts of good morals (or)
deep-rooted traditions of the commonwealth’, the same could be deemed to violate the public
policy of India. As a result of this reasoning, foreign law cannot be enforced in India if it
contravenes the public policy of the latter. Thus, the concept of choice of law ceases to be
recognized in cases where the object of the agreement is unlawful under Indian law and legal
proceedings.
The Indian scenario

India is a land of diversity where personal laws are formed based majorly on religions that differ
distinctly from one another and thus it proves even more problematic to apply a uniform law to
govern all aspects of international disputes as compared to countries abroad that have adopted a
unified civil code applicable to all its people.

In an attempt to bring some uniformity to resolve mainly commercial activities involving

international trade contracts, India became a member of the Hague Conference on Private
International Law. This ensured that the contractual obligations of the parties were fixed
beforehand to prevent any legal disputes in the future. This, however, still had its own set of
problems as it is not plausible to eliminate all possibilities of disputes arising between parties.

Mandatory rules of domestic law

The personal law of India forms a part of its domestic law which is one of the strongest
limitations to the power of the parties to exercise their choice of law. An example of these
mandatory rules is especially prevalent in the field of contracts, namely the rules which render
the contract void on the ground of public policy and the presence of certain provisions that
invalidate the same such as exemption clauses that protect the weaker party from major limiting
factors. The grey areas which might arise are always to be solved by ensuring that the intention
in choosing a particular law is bona fide.

AND/OR

Choice of law

In its choice of the applicable law, the court that exercises jurisdiction determines which law to
apply to a case that involves foreign parties, foreign transactions, or a number of foreign
elements. In a simple world, the court would always apply its own law, the law of the forum
(known in Latin as the lex fori). Indeed, some modern methodologies, particularly in the United
States, favour the lex fori approach.
Historical development
Classic theories of conflicts law were territorially oriented. The German jurist and legal
scholar Friedrich Karl von Savigny (1779–1861) sought to identify the law where, “according to
its nature,” the legal problem or relationship had its “seat.” Anglo-American law also sought the
territorially applicable law because, in the view of the American legal scholar Joseph Beale
(1861–1943), whose thoughts shaped much of American conflict-of-laws theory in the first half
of the 20th century, that is where the rights and obligations of the parties “vested.” This vested-
rights doctrine maintained that, once a right was created in one locale, its existence should be
recognized everywhere. Classic theories of conflicts law used a number of connecting factors to
determine the territorially applicable law. In matters of family law, Anglo-American law used
the parties’ domicile (narrowly defined). In civil-law countries, by contrast, a
person’s nationality was until recently the most important connecting factor. Because of the
influence of the Hague Conference on Private International Law, however, the reference is now
more commonly to the law of a person’s “habitual residence” (as it is in the law of jurisdiction).

For torts, American law traditionally looked to the law of the place of injury, whereas European
law referred either to it or to the law of the place where the wrongful conduct had occurred.
Some European systems referred to the law of either of these places; this was, and continues to
be, the plaintiff-favouring choice-of-law rule in Germany. For contracts, most legal systems
looked to the place of performance for breach but stipulated that the place of formation was a
more important connecting factor for questions of validity. These examples illustrate that rather
well-defined connecting factors can identify the applicable law in a predictable manner, subject
to exceptions in certain difficult cases.

Despite, or perhaps because of, their predictable results, these rules at times failed to serve the
interests of justice: they were inflexible, and they did not prevent important aspects of a
particular case from being overlooked. Such problems could have occurred in cases involving
the fortuitous commission abroad of a tort involving parties with a common domicile in the
forum or in another state (where the long-term effects of the tort would be felt) or the conclusion
of a contract in an unrelated state (for example, at a trade fair) between two or more parties, all
of whom conducted business in a common (but different) state. In both examples, the common
(“home”) law of the parties might serve the parties’ interests—and those of society—better than
the mechanical application of traditional tort or contract choice-of-law rules. Consequently,
courts and parties resorted to so-called “escape devices” that yielded better, more appropriate
results. Among these is the recharacterization of a set of facts—e.g., the recasting of a question
of contract as a tort or a tort question as one of family law. For example, what law governs the
question of whether spouses have the capacity to sue each other or whether they have immunity?
In a personal-injury case, is this a question of tort law (i.e., the law of the place of injury) or
family law (law of the state of the marital domicile)? If the two laws differ, the characterization
of the issue may produce different outcomes. The escape from rigid rules by means of
recharacterization resulted in a period of considerable uncertainty, especially in the United
States.
Contemporary developments
New approaches to choice of law, starting with the governmental-interest analysis developed by
the American legal scholar Brainerd Currie, began to emerge in the 1950s. Currie’s approach
sought to determine whether a “true” or “false” conflict exists between the law of the forum state
and that of the other involved state. A false conflict exists if the laws of both states do not differ;
if, though ostensibly different, both laws are designed to effectuate the same policy; or if one law
is construed to be inapplicable to cases such as the one before the court. If by these guidelines
the other state is determined not to have an interest, a false conflict exists, thus making the local
law of the forum the applicable choice of law.

In cases of “true conflict”—i.e., in cases in which both the forum’s law and another law claim
applicability—Currie called for the application of forum law. He rejected any evaluation or
weighing of the competing state interests, considering this to be a legislative, not a judicial,
function. Contemporary applications of interest analysis do undertake to weigh the relative
interest; an example is California’s “comparative impairment” approach. Overall, governmental-
interest analysis has had a significant influence on modern American conflicts law.

Another approach, known as the better-law approach, attempts to determine which of two
potentially applicable laws is better as a solution to the problem at hand. Not surprisingly, both
the governmental-interest and the better-law approaches tend to apply the lex fori, either because
the other law is deemed to be inapplicable (i.e., the other state is disinterested, or there is a so-
called “false conflict”) in view of the forum’s determination that it has the greater interest in
having its law applied or because forum law, according to the better-law approach, is deemed to
be better. American case law employing these approaches has tended to display a “homeward
trend”—i.e., one that favours the home forum.
Applications in the United States

The American Law Institute (ALI), a private association of lawyers, judges,

and law professors, drafts so-called “restatements” of specific areas of the law. Bearing some
resemblance to European codes in their form and structure, the ALI’s restatements synthesize all
U.S. state case laws on a particular subject, such as tort, agency, or contracts. As the laws
change, the ALI publishes new restatements. Although the material presented in them is not law,
many ALI restatements have proved so reliable that courts have been known to cite the
restatement instead of case law precedents. This has occurred, for example, with the restatements
of contract and of tort law.

The Restatement of the Law, Second: Conflict of Laws (1971–2005) not only updated its
predecessor document (which was promulgated in 1934 and reflected a bias toward vested-rights
thinking) but took a forward-looking stance by presenting recommended approaches, particularly
for tort and contract conflict-of-laws cases. Drawing upon all of the approaches that had been the
subject of academic discourse over the preceding quarter century, it called for the applicable law
to be the law of the place where the “most significant relationship” between the transaction (in
contract) or occurrence (in tort) and the parties is located. Furthermore, the Restatement
(Second) provides a number of connecting factors (“contacts”) to determine the place of the most
significant relationship, such as the place of the tort, the domicile of the parties, and so forth.
These contacts are to be evaluated in light of the “general principles” of section 6 of
the Restatement (Second). They include party expectations, societal interests—including the
policies underlying particular rules of law—ease in the administration of justice, and fairness,
among others. This approach, which some earlier contract cases had called the search for the
contract’s “centre of gravity,” has been very influential in the United States.

Nevertheless, several of its features can make its application somewhat uncertain. For example,
because the criteria provided by the Restatement (Second) are not ranked in order of priority,
different courts may assign different priorities, thereby contributing to different (divergent)
results. The Restatement (Second) also provides expressly that the choice-of-law determination
be made for each issue of the case; as a result, different laws may apply to different issues of a
case (a situation known as dépeçage [French: “break into smaller pieces”]). This “splitting” of a
case into its various component issues may promote just solutions for difficult international
cases, but the practice significantly increases the burden on courts and on the involved parties. In
addition, it diminishes the decision’s value as a precedent for later cases, even if they differ only
slightly. Finally, the general principles of the Restatement’s section 6 accommodate all doctrinal
schools—from interest analysis to the better-law approach—thus giving courts substantial
leeway. Predictability thus depends on the development of a consistent body of case law, yet its
orientation may differ from state to state.
Applications in EU member countries
European choice-of-law methodology has undergone similar changes, both in the law of
individual European states and within the EU—in the latter first as a result of the Rome
Convention and more recently as the result of EU legislation. In tort the EU’s Rome II
Regulation contains specific rules for a few torts but in general calls for the application of the
law of the place of injury, with exceptions in favour of the law of the parties’ common habitual
residence and, as an alternative, of a more closely connected law. In contract the Rome I
Regulation also provides specific choice-of-law rules for a number of contract types—for
example, seller’s law for contracts for the sale of goods in the absence of a contrary party
stipulation. In so doing, it translates the preceding Rome Convention’s reference to the law of the
party rendering the “characteristic performance” (e.g., selling the goods, providing the service)
into concrete rules. The Rome Convention’s underlying policy—application of the most closely
connected law—becomes the default rule when no specific rule applies. The Rome I Regulation
also provides special rules for consumer, insurance, and employment contracts.
Applications in other countries
In many countries around the world, including many that are civil-law oriented, recent legislation
similarly has made the determination of the applicable law more flexible. Many codifications,
such as in eastern Europe outside the EU, or legislative projects, such as in China, no longer
make reference to a single governing law in tort but also give weight to such alternatives as the
parties’ common domicile and other relevant factors.
Other considerations
Differences between the conflicts law of different countries may raise additional choice-of-law
questions, such as those pertaining to the renvoi (French: “send back”) principle. If the foreign
law, to which the forum’s conflicts rule refers, contains a conflicts rule that refers back to the law
of the forum, will the latter accept the reference and apply its own law? Similarly, if the foreign
law contains a conflicts rule that refers to the law of a third country, will the forum follow that
reference? The underlying question hinges on whether the forum’s reference to foreign law
includes that law’s conflicts rules in the first place. Many legal systems answer the question in
the affirmative and thereby resolve the two questions posed in the foregoing. But not all conflicts
systems utilize renvoi (most American courts do not), and even those legal systems that do use it
or have used it in the past exclude renvoi. This is now the case in EU conflicts law with respect
to tort and contract cases.

On procedural issues, a court will always apply its own law. There is no agreement, however, on
which issues are procedural and which are substantive. Time limitations (statutes of limitations),
for example, are considered substantive in civil-law countries but procedural in certain other
countries and in many states of the United States.
Recognition and enforcement of judgments
Judgments are sovereign acts that have no force beyond the jurisdiction of the court that renders
them. Thus, if assets for satisfying a judgment in favour of a creditor are unavailable locally,
recognition and enforcement of the judgment will need to be sought in a state in which
the debtor does hold assets. Within the United States, recognition and enforcement of sister-state
judgments are mandated by the full faith and credit clause of the federal Constitution and
are facilitated procedurally in many states by uniform state laws. For EU member-states the
Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial
Matters (1968) and its successor, the Council Regulation on Jurisdiction and the Recognition and
Enforcement of Judgments in Civil and Commercial Matters (2000; Brussels I), perform a
similar function by mandating the automatic recognition and enforcement of EU member-state
civil and commercial judgments in all other member states, subject only to few exceptions.
Another EU regulation, the Council Regulation concerning Jurisdiction and the Recognition and
Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility
(2003; the Brussels II Regulation), does much the same for divorce and custody decrees.

Internationally, the recognition of a judgment is a matter of national law, although it is

sometimes dealt with in bilateral or multilateral treaties (except in the United States, which is not
party to any judgments-recognition treaty). National legal systems will ordinarily recognize a
judgment rendered in a foreign country (sometimes on the condition of reciprocity), provided
that the rendering court had jurisdiction (as measured by the standards of the recognizing court),
that the judgment debtor had received notice sufficient to enable him to defend, and that the
foreign judgment does not offend the public policy of the recognizing state. Most systems do not
allow a review of the foreign judgment on the merits (a so-called révision au fond [French:
“review of the background”]). However, when a court rejects a foreign judgment on the basis of
public policy, it will necessarily have considered substantive or procedural aspects of foreign law
and, because of its disapproval of them, refuse to accept the outcome of the case. A German
court, for example, will refuse to recognize an American punitive damage judgment because,
according to the German view, punitive damages exceed the purview of tort law, which seeks
compensation but not punishment. Similarly, an American court may refuse to recognize an
English judgment for damages because English substantive and procedural law (e.g., the burden
of proof in defamation) violates U.S. constitutional-law principles.

In composite jurisdictional systems such as those of the United States and the EU, where a
central norm establishes jurisdictional limits for the constituent units, alleged jurisdictional
defects must be raised directly (on appeal within the particular constituent unit’s system) when
both parties are before the court. They cannot be raised collaterally—i.e., as a defense against
recognition of the judgment in another constituent unit. The effect of the first court’s judgment
(and of issues necessarily bound up with it) on the immediate parties, when not appealed or when
affirmed on appeal, becomes res judicata (Latin: “the matter is adjudicated” or “a thing
adjudged”) and is not open for reexamination in a second forum (nor in the original forum after a
period fixed by the statute of limitations has expired). The scope of a judgment’s res judicata
effect (the recognition of a judgment as a bar to the initiation of a new suit all over again) is
ordinarily that which attaches under the law of the rendering state. Exceptions may apply when
the judgment is rendered by default (i.e., the defendant is not before the rendering court), when
certain effects are unknown in the law of the recognizing country, or perhaps also when a
judgment goes beyond the res judicata effect that the latter’s law would accord.
International criminal law

Criminal law is part of public law and is not subject to the individual’s disposition (in the way
that parties can choose the applicable law by contract in their private transactions), its sphere of
application is determined by public international law, which defines the reach of
state sovereignty. Prosecution and court proceedings are almost never governed by foreign laws.
The most important issue is therefore whether a state’s authorities may commence criminal
proceedings in cases involving foreign persons or elements.

According to the generally recognized principle of territoriality, the country where the offense
was committed is competent to investigate and adjudicate it, because that country’s authorities
are responsible for preserving law and order in its territory. Territoriality may be modified in two
ways. First, countries may claim jurisdiction over offenses committed by their citizens abroad.
Second, public international law recognizes the jurisdiction of all countries over certain universal
crimes, including genocide and piracy. A number of bilateral and multilateral
conventions facilitate the obtaining of evidence, provide legal aid, or ensure the extradition of
offenders. In the EU the Europol Convention provides for judicial and police cooperation in
criminal matters. See also international criminal law.

AND/OR
How India has approached customary international law
An important report on “India and international law” by the parliamentary committee on external
affairs was recently presented to the Lok Sabha. Among other things, the report discusses how
Indian courts have dealt with international law. The committee observed that India follows the
principle of “dualism”, that is, international law does not automatically get incorporated into the
domestic legal regime. An act of Parliament is necessary to transform international law into
municipal law as recognised by Article 253 of the Indian Constitution. However, the committee
believes that the Supreme Court has digressed from the principle of dualism and moved towards
monism by holding that customary international law (CIL), unless contradictory to domestic law,
is part of the Indian legal regime even without an enabling legislation enacted by the Parliament.
CIL refers to international law norms derived from a custom that is a formal source of
international law.
India has indeed moved away from the principle of dualism towards monism by judicially
incorporating not just CIL but also international treaties including those treaties that India has not
signed. As regards customary norms, the Supreme Court in Vellore Citizens Welfare Forum v.
Union of India held that CIL which is not contrary to the municipal law shall be deemed to have
been incorporated in India’s domestic law. This principle has been affirmed in subsequent
decisions. The apex court in Research Foundation for Science v. Union of India, relying on the
Vellore Citizen case, declared that the precautionary principle, an environmental law concept, is
part of CIL and thus part of Indian law.
Several facets of this judiciary-led transition from dualism to monism require elucidation. First,
the apex court incorporating CIL as part of the domestic legal regime is consistent with the
practice of other common law countries. However, the sticky part is the ease with which CIL is
accepted as part of Indian law. For instance, the Supreme Court’s willingness to readily accept
the precautionary principle as part of CIL flies in the face of international law debates where the
acceptance of this principle as a customary norm remains contested. Determination of whether a
particular provision indeed constitutes a binding customary norm under international law
requires the double requirement of state practice (the actual practice of the states) and opinio
juris (belief that the custom is part of the law). The apex court rarely conducts such an analysis.
Second, the apex court hasn’t been consistent in incorporating CIL. In a 2021 case, Mohamad
Salimullah v. Union of India, the court appallingly refused to rule against the deportation of
Rohingya refugees to Myanmar despite the principle of non-refoulment being part of CIL. The
principle of non-refoulment prohibits a country from returning refugees to countries where they
face a clear threat of persecution. But curiously the court did not incorporate this principle into
Indian law.
Third, international law-making is often critiqued for democratic deficit. Arguably, judicially
incorporating international law without parliamentary scrutiny legitimises such a democratic
deficit. Accordingly, judicial incorporation of international law is questioned because it amounts
to the judiciary riding roughshod over the Parliament. The committee too feels that this could
become a bone of contention between the judiciary and the other organs of the state.
Fourth, the bright side of judicial incorporation is the progressive development of law when the
executive and the parliament for ideological or political persuasions fail to enact laws
transforming a liberal international legal norm into domestic law. India’s spectacular failure to
enact a refugee law incorporating the principle of non-refoulment is a classic example of this.
The apex court squandered the terrific opportunity in the Mohamad Salimullah case to
incorporate non-refoulment as part of the Indian legal regime.
The committee’s recommendation that the executive should take note of the vacuum in domestic
legislation on customary norms in international law and develop adequate domestic laws is an
important one. However, this should not mean expanding domestic law that rejects binding
customary norms in international law. On the contrary, India should enact domestic laws that are
harmonious with CIL. The judiciary, on its part, should demonstrate greater analytical rigour in
interpreting and applying CIL as part of the Indian legal regime

AND/OR

Personal laws cannot be in conflict with Constitution: Law Commission

The Law Commission in its consultation paper released on Friday said that personal laws, by
virtue of being enacted as laws, cannot be codified in a way that contradicts the Constitution.

The Commission, however, clarified, that certain issues such as polygamy, nikah halala,
settlement of a Parsi wife's property for benefit of children, and the law on adultery are presently
sub judiced before the Supreme Court, hence, comprehensive changes on some of these have not
been suggested at this stage.

The Commission said that in the absence of any consensus on a uniform civil code the best way
forward may be to preserve the diversity of personal laws but at the same time ensure that
personal laws do not contradict fundamental rights guaranteed under the Constitution of India.

"In order to achieve this, it is desirable that all personal laws relating to matters of family must
first be codified to the greatest extent possible, and the inequalities that have crept into codified
law, these should be remedied by amendment," the Commission added.

The Commission asserted that codification of discriminatory custom regardless of how

commonly acceptable they may be, can lead to crystallisation of prejudices or stereotypes.

The consultation paper discussed the introduction of new grounds for 'no fault' divorce
accompanied by corresponding changes to provisions on alimony and maintenance, rights of
differently-abled individuals within marriage, the thirty-day period for registration of marriages
under Special Marriage Act; uncertainty and inequality in age of consent for marriage,
compulsory registration of marriage, bigamy upon conversion etc.

Under the Hindu Law, the paper among other issues, discussed problems with provisions like
restitution of conjugal rights, and suggested the inclusion of concepts such as 'community of
property' of a married couple, abolition of coparcenary, rights of illegitimate children etc. There
are further suggestions for addressing self-acquired property of a Hindu female.

Under Muslim Law, the paper discussed the reform in inheritance law through codification of
Muslim Law on inheritance, while ensuring that the codified law is gender just. The paper also
discussed the rights of a widow, and the changes application to general laws such as introduction
of community of (self acquired) property after marriage, inclusion of irretrievable breakdown of
marriage as a ground for divorce.

Under Parsi Law, there are suggestions related to protecting married women's right to inherit
property even if they marry outside their community.

The paper also suggested expansion of the Juvenile Justice (Care and Protection) Act, 2015, to
make it into a robust secular law that can be accessed by individuals of all communities for
adoption. There are suggestions for amending the guidelines for adoption and also to alter the
language of the Act to accommodate all gender identities.

On the issue of custody and guardianship laws, statutory or customary, the Commission
suggested that the 'best interest of the child' has to remain the paramount consideration in
deciding matters of custody regardless of any prevailing personal law in place.

"Although the sixth schedule provides exemptions and exemptions to states in the North East and
tribal areas, we suggest that efforts of women's organisations in these areas be acknowledged and
relied upon in this regard to suggest ways in which family law reform could be aided by the state
even when direct intervention may not be possible," the Commission added.

(This story has not been edited by Business Standard staff and is auto-generated from a
syndicated feed.)
 PARTIES AUTONOMY
Party Autonomy in India

The roots of the word Arbitration lie in the principle of 'party autonomy'. The word means to
have 'freedom to opt' or 'parties at will'; and the jurisprudence of arbitration has long embraced
this concept. This principle is the guiding grundnorm for arbitration laws across various
jurisdictions. Parties have absolute freedom to determine the conditions by which the arbitration
agreement will be governed. Furthermore, the parties will be free to choose inter alia the place of
arbitration, laws to govern the substance of the dispute and laws to govern the procedure of the
arbitration based on mutual agreement between the parties.

It is significant to highlight that Article 19 of the UNCITRAL Model Law embodies the
principle of 'party autonomy' by stipulating that parties are free to agree on the procedure to be
followed by the arbitral tribunal in conducting the proceedings. The Arbitration and
Conciliation Act, 1996 (the Act) provides specific provisions stipulated under Section 2(6),
making it clear that parties are free to authorize any person, including an institution, to determine
the issue between the parties. Section 2(8) provides the parties, liberty to choose the rules and
regulations. Furthermore, as per Section 19(2) the parties can agree on the procedure to be
followed by an arbitral tribunal.

DEVELOPMENT OF PARTY AUTONOMY AS GRUNDNORM OF ARBITRATION

"Unless otherwise agreed by the parties"

A well-established principle of party autonomy is that parties are free to choose any of the
conditions in the arbitration agreement to resolve their disputes irrespective of any place, law,
rules, and procedures to follow. It is regarded as the "brooding and guiding spirit" of
arbitration.1 The legal position is such that the parties to an arbitration have the autonomy to
decide not only on the procedural law, but also the substantive law.2 Arbitration agreement is the
core element which reflects the autonomy of the parties3, including appointment and
organization of arbitral tribunal4, deciding the place of arbitration5 and so on. To fully establish
the principle of party autonomy, the following issues must be addressed which are discussed in
detail herein below:

1. AGREEMENT OF PARTIES FOR FOREIGN SEAT OF ARBITRATION

Earlier, there was an eclipse on this principle of party autonomy in India because Indian courts
had ruled that if both parties are Indians, then arbitration will occur in India.6

However, in 2008 there was a shift in favor of autonomy of the parties when the question before
the apex court arose as to whether arbitration between two subsidiaries of Malaysian companies
in India would be an international commercial arbitration or domestic arbitration7. The court in
the said case held that the arbitration in such case will be treated as domestic, as per Section
28 of the Arbitration and Conciliation Act, and thus the arbitration is validly conducted in
India. This decision, however, was dissented from being followed, under the misconception that
Indian parties cannot contract out of Indian Law8.

Thereafter in 2017, a three-judge bench of the hon'ble apex court in Centrotrade Minerals and
Metal v. Hindustan Copper9, re-emphasized upon the principle of party autonomy in arbitration.
The court held that the 'party-autonomy' is virtually the backbone that permits parties to adopt
the foreign seat as the proper arbitration law. In arbitration, the decks have been cleared to give
effect to party autonomy by widely accepting it as a guiding spirit.

Furthermore, in Bharat Aluminum Co. v. Kaiser Aluminum Technical Services10, it was held
that party autonomy being the indispensable and directing element of arbitration, arbitrators are
permitted to elect to apply three specific laws to their entire agreement: (1) appropriate law of
agreement, (2) appropriate law of the arbitration agreement, and (3) appropriate law of the
conduct of arbitration, which is in lawful speech known as "curial law". Besides determining
procedural law, the arbitration agreement can mandate the choice of substantive law as well.

Further, in PASL Wind Solution v. GE Power Conversion11, the Supreme Court upheld the
principle of party autonomy and held that two Indian parties could choose foreign seats of
arbitration irrespective of the fact that both parties are Indian. Moreover, the foreign award
passed by the arbitrator will be enforceable under part II of the Act.

2. EMERGENCY AWARD - INTERIM RELIEF

In the recent case of Amazon Investment Holdings LLC v. Future Retail Limited & Ors.12, the
hon'ble Supreme Court recognized the validity of an emergency award made in India
under Section 17 of the Arbitration and Conciliation Act 1996. As per agreement between
parties, the Rules of Singapore International Arbitration Center (SIAC) were to govern the
arbitration proceedings, while the seat of arbitration was in India. The Amazon group sought an
emergency award from SIAC. The emergency award so granted was put to enforcement before
the single-judge bench of the Delhi High Court which approved and ordered enforcement of the
emergency award. A stay of execution was obtained later by the Future Group, in appeal to the
division bench. Nevertheless, Amazon approached the Supreme Court, which decided in favor of
Amazon Group, based on the following reasoning:

 According to Section 17(1) of the Act, an emergency arbitrator's award is enforceable in

court under Section 17(2), and an emergency arbitrator's award is an order under that
section.
 A request to implement an emergency arbitrator's award made under Section 17(2) of the
Arbitration Act would not be appealable under the Arbitration Act.
The Supreme Court's decision in Amazon v. Future marks the beginning of a significant trend in
Indian arbitration that puts party autonomy at the forefront. Pertinently, the choice of parties
would enable an emergency arbitration award made in an arbitration seated in India to be
enforced by Indian courts like that of a court decree. Additionally, the parties can anticipate that
the enforcement process should be less arduous and more solid because such an emergency
award would be conclusive and non-appealable. This decision is a welcome development since it
aligns the Indian arbitration industry with the global standards with respect to recognition of
emergency awards and their enforcement.

And/Or

APPLICABILITY IN INDIA

To get a deeper understanding of the applicability of the Act with vis-à-vis the seat of
arbitration, it is necessary to look at the following decisions of the Supreme Court. In 2002, a 3-
Judge Bench of the Supreme Court in Bhatia International v. Bulk Trading SA8, held that Part I
of the Act will apply to international commercial arbitrations, both in and outside India, unless
the parties to the agreement, expressly or impliedly, exclude the applicability of any or all
provisions of Part I of the Act.9 The rationale behind this decision of the Supreme Court was that
Section 2(2) of the Act, although adopted from the UNCITRAL Model Law, omits the word
“only”.10 This, according to the Supreme Court, indicated the intention of the legislature to give
scope to the international commercial arbitrations, both in and outside India, to be
included.11 Following this, the Supreme Court upheld Bhatia principle12 i.e. the principle of
express or implied exclusion, in numerous cases like Venture Global Engg. v. Satyam Computer
Services Ltd.1, Videocon Industries Ltd. v. Union of India, Yograj Infrastructure Ltd. v. Ssang
Yong Engg. and Construction Co. etc.
However, in 2012, in the landmark judgment of BALCO v. Kaiser Aluminium Technical
Services Inc. a 5-Judge Constitutional Bench of the Supreme Court overruled the Bhatia
principle as it was deemed extremely erroneous and was derogating from the Indian law.The
Supreme Court held that the absence of the word “only” in Section 2(2) of the Act, as opposed to
Article 1(2) of the Model Law, does not nullify the “territoriality principle” i.e. only the courts of
the country where the seat of arbitration is located will have the jurisdiction over such arbitral
proceedings. Thus, it was held that Parts I and II of the Act are mutually exclusive of each other
and only when the seat of arbitration is in India, Part I of the Act will apply to those international
commercial arbitrations.Although the BALCO regime has set the precedent in its favour; it is
imperative to note that the decision of BALCO only applies to arbitral agreements post 6-9-2012,
before which the Bhatia principle is applicable. Thus, this has led to the existence of two parallel
regimes, thereby, causing chaos in the status of the Indian law on arbitration.
The seat, although not defined in the Act, is the “centre of gravity” or the “central point” of
arbitration. The seat is also determinative of the applicability of the Act as well as of the
“territoriality principle”. Thus, it is imperative to understand the difference between basic terms,
such as “seat”, “venue” and “place”. These terms can have a lot of different meanings when used
in different contexts. However, in the context of the 1996 Act, while “seat” and “place” have the
same meaning, “seat” and “venue” do not. In other words, under international commercial
arbitration, while the “seat” may be in India, the “venue” can be anywhere in India or outside
India without any implication on the applicability of either of the parts. Thus, while the “seat” of
arbitration is determinative of the applicability of the Act, the “venue” is irrelevant in that regard.
Lastly, it is also imperative to note that Sections 20(2) and (3) gives the parties freedom to
choose the seat of arbitration. However, the Supreme Court in BALCO case27 held that the
provisions regarding “courts” under Section 2(1)(e) of the Act have to be read along with Section
20 of the Act because the “courts” have supervisory control over the arbitral proceedings.28 This
not only creates chaos but also leads to ambiguity on the extent to which a party has the
autonomy to choose the seat of arbitration.

Can Indian parties choose a foreign seat?

The correct choice of the seat of arbitration ensures a systematic and efficient proceeding.
Most parties prefer to be free with such choices to get an “arbitration-friendly” jurisdiction. By
now, it is clear that Part I of the Act includes arbitrations that are seated in India and Part II of
the Act includes arbitrations that are seated outside India. It is also clear that the Act includes
provisions under which an Indian party and a foreign party can have a foreign seat of arbitration.
However, there is still no clarity about whether Indian parties can choose a foreign seat of
arbitration.
To resolve the ambiguity around the existence of “party autonomy”, it is necessary to look at
the ages-long debate over whether Indian parties to a proceeding have the autonomy/freedom to
choose a foreign seat, despite the prevailing precedents on the applicability of Parts I and II of
the Act. This is because an arbitration agreement is also an autonomous agreement that can be
governed by any proper law distinct from lex loci contractus and lex arbitri. Thus, various High
Courts in India have attempted to highlight and address the issue.

In Atlas Export Industries v. Kotak & Co., although there were not only two Indian parties
but also a third foreign party, the Court held that a mere choice of a foreign seat of arbitration
cannot by itself nullify an agreement between the parties. Following this, in Sasan Power
Ltd. v. North American Coal Corpn. (India) (P) Ltd., where both parties were companies that
were incorporated in India, the Madhya Pradesh High Court had to address whether these Indian
parties could choose a foreign seat of arbitration. Here, it was held that two Indian parties have
the autonomy/freedom to choose a foreign seat of arbitration.
Further, various recent judgments support the stance of Atlas Export
Industries case and Sasan Power case. In GMR Energy Ltd. v. Doosan Power Systems India (P)
Ltd., the parties had agreed upon the Singapore International Arbitration Centre (SIAC) as the
seat of arbitration. GMR Energy Limited sought a decree of permanent injunction, restraining
Doosan from holding the arbitration in Singapore. However, the Delhi High Court rejected this
claim and held that Indian parties were free to choose a foreign seat of arbitration.
Further, in GE Power Conversion India (P) Ltd. v. PASL Wind Solutions (P) Ltd. the parties
had agreed upon Zurich as the seat of arbitration and the governing laws to be the Swiss law
under the arbitration clause in the agreement between them. It was observed that the intention of
the parties to choose Zurich as the seat of arbitration was reflected by the said clause. The
Gujarat High Court, giving primacy to the party autonomy, held that the Act had no provisions
that could restrain Indian parties from freely choosing a foreign seat of arbitration.Further,
in Dholi Spintex (P) Ltd. v. Louis Dreyfus Co. India (P) Ltd., the Delhi High Court held that
Indian parties are free to choose a foreign seat of arbitration as long as doing so is not against the
principles of justice and morality. Further, it was held that for the autonomy to be granted to the
Indian parties, they must ensure that the substantive contract must have a foreign component.
However, the Bombay High Court in Addhar Mercantile (P) Ltd. v. Shree Jagdamba Agrico
Exports (P) Ltd. took a contradictory stance. Here, the arbitration clause in the agreement laid
that the seat of arbitration will be either India or Singapore, and the laws governing the
proceeding will be English laws. It was held that the arbitration can be validly conducted in India
because it was provided in the arbitration clause of the agreement. Having said that, it is
imperative to note that the Court did not hold that the arbitration could not be conducted in
Singapore. It was, in fact, held that had the arbitration been conducted in Singapore, the English
law would have applied. Thus, whether Indian parties to a proceeding have the
autonomy/freedom can choose a foreign seat or not, was not even addressed in this case.
The decision of the Bombay High Court was based on the decision in TDM Infrastructure
(P) Ltd. v. UE Development India (P) Ltd In TDM case it was held that it was impermissible for
Indian parties to derogate from the Indian law as it was “part of the public policy of India.”
Further, it was held that the seat of arbitration was located in India and the proceedings were to
be dealt with as per Section 28 of the Act. Here, the key issues that the Court had to deal with
were whether the petitioner was Indian by nationality and whether the arbitration in question was
international commercial arbitration. Section 28 of the Act has nothing to do with the seat of the
arbitration, it only addresses the substantive law to be used to resolve a dispute. There were no
observations made about whether Indian parties to a proceeding have the autonomy/freedom to
choose a foreign seat. Thus, it can be seen that the decision of the Bombay High Court in cases
like Addhar Mercantile case and Sah Petroleums Ltd. v. Seven Islands Shipping Ltd. was based
on a misinterpretation of the decision in TDM case.
Section 28 of the Act highlights the intention of the legislature to ensure that Indian parties to
an arbitral proceeding do not derogate from the Indian law. However, it is imperative to note that
as per Section 2(2) of the Act, being a provision under Part I of the Act, Section 28 of the Act
only applies to the arbitrations seated in India. Thus, the decision in TDM case has nothing to do
with whether the Indian parties can/cannot choose a foreign seat of arbitration, thereby clearing
that the Indian parties choosing a foreign seat of arbitration is not against public policy.
 Moreover, as shown above, in Addhar Mercantile case, it was held that had the arbitration
been conducted in Singapore, the English law would have applied. It was not held that the
arbitration could not have been conducted in Singapore. Thus, the Bombay High Court did not
hold that Indian parties were not autonomous/free to choose a foreign seat of arbitration, and this
question was left unaddressed.

MODULE:II(b)
Inherent Powers Of Court Under Code Of Civil Procedure 1908

The inherent power of the court is that which is inherent in a court by the very fact of its
being empowered to exercise any jurisdiction at all so that it comes within the express sense of
the law of within the consequences that may be gathered from it.

Scope: the Code of Civil Procedure is not exhaustive. Since laws are general rules, they cannot
regulate for all time to come so as to make express provision against all inconveniences, which
are infinite in number, and to foresee all cases that may possibly happen with a view to
provisions for all contingencies and for all the times.

The purpose of the law is to secure the ends of justice. The laws are not ends in themselves but
are only a means for securing justice. If the ordinary rules of procedure results in injustice in any
case and there is no remedy, it is the duty of the court to over-ride those rules for achieving the
ends of justice.

Hence the framers of the code of Civil Procedure provided section 151, giving:
Inherent powers can be used only if the ordinary rules of procedure result in injustice in any case
and there is no other remedy, they can be broken for the ends of justice.

The inherent powers can be exercised where abuse of process of Court resulted from the mistake
of the Court or by the officers of the court.

Object: the object of inherent power of the court is to do justice and to undo wrong in case of
abuse of process of court fraud or misrepresentation by a party upon the court or where there is
absence of rule of procedure in the circumstances of a particular cases.

Section- 151: savings of inherent powers of Court- nothing in this code shall be deemed to limit
or otherwise affect the inherent powers of the court to make such orders as may be necessary for
the ends of justice or to prevent abuse of the process of the court.

When Can A Court Exercise Inherent Powers?

In the following circumstances, and cases a Court can exercise its inherent powers:

1. Section 151 does not confer a new power to the court, but makes a statutory recognition
of inherent power of the court to do certain things ex debito justice. The inherent power
can be involved only for the attainment of the ends of a substantial justice.
2. Section 151 provides only an extra-ordinary procedure, and action under this section, it is
not in any sense obligatory.
3. Section 151 could only be involved where no other remedy is available. It does not confer
any substantive right on parties but is only meant to get over the difficulties arising from
rules of practice.
4. To consolidate suits and appeals including appeal to his Majesty in council, now the
Supreme court, even without the consent of the parties.
5. To order joint trial of suits.
6. To ascertain whether the proper parties are before it.
7. To entertain the application of a third person to be made a party.
8. To allow a defence in forma pauperis.
9. To say the drawing up of the court�s own orders or to suspend their operation, it the
necessities of justice so require.
10. To apply the principles of res judicata to cases not falling under Section 11 C.P.C.
11. To add a party.
12. To punish summarily by imprisonment contempt of courts.
13. To transpose parties.
14. To refuse permission to a co-plaintiff to withdraw from a suit in a case when he does not
ask permission to institute a fresh suit on the same cause of action or impose terms upon
him.
15. To stay proceedings to its own order in view of an intended appeal.
16. To decide question of jurisdiction though a result of its inquiry it may turn out that the
court has no jurisdiction over the suit.
17. To restore a suit dismissed for default in cases not provided for by a rule 9 of order 9.
18. To order a refund of court-fee paid by inadvertence.
19. To stay a suit where it does not come within section 10 (Res subjudice).
20. To grant temporary injunction where it does not fall under Order 39.
21. To reconstruct its record where they are lost by accident; etc, etc.

When Cannot A Court Exercise Inherent Power?

1. The object of Sec. 151 is to provide justice and to undo wrong in case of abuse of process
of Court of fraud or misrepresentation by a party upon the court, or where there is
absence of rule of procedure in the circumstances of a particular case. By involving the
inherent powers, a court should not cause damage to this object
2. The inherent powers cannot be involved where there is specific provision in the code.
3. The code cannot exercise inherent power to grant interim relief which properly ought to
be granted only by the decree after determination of the points in controversy.
4. To compel parties to submit to medical examination or blood test.
5. To appoint a commissioner to seize account-books in the possession of the plaintiff.
6. To consider or review an order.
7. To set aside an ex parte decree.
8. To strike a defence.
9. To restore suit dismissed for default for non-payment of court-fee under Rule 11(d) of
Order 7.
10. To refund court-fee on a review application when the review is granted on a ground other
than mistake of law fact; etc. etc.

AND/OR

 CHOICE OF JURISDICTION
Forum non conveniens – forum/ court not agreeing, it’s a common law legal doctrine
whereby courts may refuse to take jurisdiction over matters where there is more
appropriate forum available to the parties. Eg., a question may arise in a situation where
an Indian court has jurisdiction under CPC but will decline to exercise jurisdiction if
parties have in their contract agreed that disputes will be resolved by arbitration or the
suit must be filed in a foreign court.

 In England, excepting enemy alien, anyone can file a suit be they British subjects or
foreigners, body corporates incorporated inside or outside England.Who is an enemy
alien does not depend on the nationality of the person but by the place where he is
residing or carries on business in a country at war with England. If an enemy alien had
filed a suit before the outbreak of war, he cannot appeal as his right is suspended.An alien
 enemy can be sued & can defend himself & can file an appeal if an adverse order has
been passed against him.

 In India Sec 83 of CPC regulates the position regarding jurisdiction for aliens. Alien
friends & alien enemies residing in India with the permission of the Central Govt. can file
suits like any Indian citizen but alien enemies residing in India without such permission
or alien enemies residing outside cannot file a suit. An alien enemy can defend a suit. If
the plaintiff wasn’t an enemy alien when the suit was instituted but subsequently became
one, his suit is maintainable.

JURISDICTION UNDER THE BRUSSELS CONVENTION

Jurisdiction refers to the question as to whether a court will hear & determine an issue upon
which its decision is sought.The rules on jurisdiction under the Brussels Convention are:The
matter is within the scope of the Convention (civil & commercial matter)Defendant is
domiciled in an European Community State( ie Austria, Belgium, France, Germany, Ireland,
Italy, Portugal, Spain, UK etc.,

 The six original members of the European Economic Community(Belgium, Germany,

France, Italy, Luxembourg, Netherlands) entered into a Convention on Jurisdiction &
Enforcement of Judgments in Civil & Commercial Matters in 1968 (Brussels
Convention) which came into force in 1973 & Protocols on Interpretation in 1971 which
came into force in 1971.The purpose is to provide for free circulation of judgments
throughout the community inspiring business confidence. To achieve this aim there had
to harmonization of the law of jurisdiction throughout the Community.

 1st there was the United Kingdom, Danish & Irish Accession Convention of 1978
2ndly, Greek Accession Convention of 19823rdly, Spanish & Portuguese Accession
Convention of 19894thly, Austrian, Finnish & Swedish Accession Convention of
1996Contracting States are those countries of Europe that has parties to the Brussels
Convention.

 Referrals to the Court of Justice – the Protocols of 1971 authorizes the Court of Justice of
the European Communities to give a rule on the interpretation of the Brussels Convention
& 4 Accession Conventions on the matters being referred to them by the national
court.The protocol contains 2 limitations as to when a national court can approach the
Court of JusticePreliminary ruling procedureCourts which can request a ruling from the
Court of Justice
 English courts have to follow the principles laid down by the Court of Justice in any
relevant decision:It must follow the techniques of interpretation employed by the Court of
Justice, the meaning of a provision must be understood in the light of its purpose & not
by its literal meaning.Must follow the general principles of interpretation in relation to
the Convention laid down by the Court of Justice.

 Must follow more specific principle where the Court of Justice has identified the purpose
underlying a particular provision & has laid down policy considerations to be taken into
account & whether a particular provision is to be interpreted widely or narrowly.The 1st
of these principles relates to the determination of whose system of law is to be applied in
order to define the words & concepts in the Convention.Where a community meaning is
given the Court of Justice will define the concept, giving it an independent meaning. It
then has a common meaning throughout the Contracting States.

 A reference to national law means that the Court of Justice is not defining the matter, it is
saying that the concept means what the court 1st understood from the matter under
national law.The objectives of the Convention require that it should be given an uniform
application throughout the European Community so it is settled law that the Court of
Justice will interpret the Brussels Convention autonomously.

 The 2nd general principle relates to the method of deciding upon what the community
meaning should be. The Court of Justice when defining concepts considers 2 factors:1st it
looks at the objectives & the scheme of the Convention. According to its preamble the
ultimate objective of the Convention is to simplify the formalities on recognition &
enforcement of judgments within the community.2ndly with some concepts the Court of
Justice has referred to the general principles which has its roots in the body of national
laws. A Community meaning doesn’t ignore national laws & reference to bilateral
treaties between Contracting States which have been made before the Convention may
help in ascertaining shared principles.

 The matter must be within the scope of the Convention – when does the Brussels
Convention apply?
The preamble indicates that the Convention is only concerned with the Contracting
States. It will not apply where a dispute involves no foreign element or where the foreign
element involves another part of UK.The Brussels Convention will not affect other
conventions on jurisdiction/enforcement/recognition which Contracting States have in the
past or will in the future enter into.The convention doesn’t apply in proceedings in
Contracting States concerning recognition/enforcement of judgments given in non-
Contracting States.

 Civil & commercial matters - the Convention shall apply only in civil or commercial
matters. No definition is given of civil & commercial matters, although Art. 1 says that it
 doesn’t include “revenue, customs or administrative matters”.The following are excluded
from the Convention:Status/legal capacity of natural persons, rights in property arising
out of matrimonial relationship, will & succession.Bankruptcy, proceedings relating to
winding up of insolvent companies.arbitration

 Whether the defendant is domiciled in a Contracting State:

Where the defendant is domiciled in a Contracting State the bases of jurisdiction under
the Convention will applyWhere the defendant is not domiciled in a Contracting State,
the traditional rules of jurisdiction of the court will applyThere are exceptions relating to
bases of jurisdiction under Art. 16 of the Convention

Brussels Convention Title II – Jurisdiction

Where the defendant is domiciled in a Contracting State:Art. 2 in Sec. 1 states that a

defendant domiciled in a Contracting State is subject to the jurisdiction of the courts of that
state.If the defendant is to be sued in the courts of the Contracting State other than that of his
domicile, Art. 3 provides that this can be done only by following rules in Sec. 2 to 6. this
prevents national courts from using their traditional rules on jurisdiction against a defendant
who is domiciled in a Contracting State.

 Where the defendant is not domiciled in a Contracting State:

Art. 4 states that jurisdiction in the courts of each Contracting State shall subject to Art.
16, be determined by the law of that state. Eg an Englishman wants to sue a Californian
domiciliary, in England, he would have to do so under the traditional English rules of
jurisdiction.

 Sec 2 – 6 (continuation)Sec Special JurisdictionArt. 5 – a person domiciled in a

Contracting State may be sued in another Contracting State:In matters relating to a
contract, in the courts for the place of performance of the obligation in questionIn matters
relating to maintenance in the courts for the place where the maintenance creditor is
domiciledIn matters relating to tort, in the courts for the place where the harmful event
occurredDispute arising out of operation of branch or agency, in the courts for the place
in which the branch or agency is situated.

 Trustee or beneficiary of a trust, in the courts of the Contracting State in which the trust is
domiciled.Art. 6- a person domiciled in a Contracting State may also be sued :Where he
is one of a number of defendants, in the courts for the place where any one of them is
domiciledAs a third party in an action on a warranty/guarantee in the court which took
hold of the original proceedings
 On a counterclaim arising from the same contract on which the original claim was based,
in the court in which the original claim is pendingSec. 3 – Jurisdiction in matters relating
to insuranceArt. 7- in matters relating to insurance, jurisdiction shall be determined by
this Section.Art. 8 – an insurer domiciled in a Contracting State maybe suedIn the courts
of the States where he is domiciled, or

 In another Contracting State, in the courts for the place where the policy-holder is
domiciled, or
If he is a co-insurer, in the courts of a Contracting State in which proceedings are brought
against the leading insurer.Art. 9 – in respect of liability insurance/insurance of
immovable property, the insurer may be sued in the courts for the place where the
harmful event occurred.

 Sec. 4 – Jurisdiction over consumer contracts

Art. 13A contract for the sale of goods on instalment credit terms orA contract for a loan
repayable by instalment or for any form of credit, made to finance the sale of goods
orAny other contract for the supply of goods or a contract for the supply of services &In
the State of the consumer’s domicile the conclusion of the contract was preceded by a
specific invitation addressed to him & the consumer took in that State the necessary steps
for the conclusion of the contract.

 Where a consumer enters into a contract with a party who is not domiciled in a
Contracting State but has a branch or agency in one of the Contracting State, that party
shall, in disputes arising out of the operations of the branch or agency, be deemed to be
domiciled in that State.Art. 14 – A consumer may bring proceedings against the other
party to a contract either in the courts of the Contracting State in which that party is
domiciled or in the courts of the Contracting State in which he himself is domiciled.

 Proceedings maybe brought against a consumer by the other party to the contract only in
the courts of the Contracting State in which the consumer is domiciled.Sec. 5 – Exclusive
jurisdictionArt. 16- the following courts shall have exclusive jurisdiction regardless of
domicile:In proceedings which have as their object rights in rem in immovable property,
the courts of the Contracting State in which the property is situated.

 In proceedings which have as their object the validity of the constitution, nullity or
dissolution of companies/other legal persons/associations of legal or natural persons, the
courts of the Constructing State in which the company/legal person/association has its
seat.Sec. 6 – Prorogation of jurisdictionArt. 17 – If the parties, one or more of whom is
domiciled in a Contracting State, have agreed in writing that a court/courts of a
Contracting State are to have jurisdiction to settle any dispute which have/may arise in
connection with a particular legal relationship, that court/courts shall have exclusive
jurisdiction.
  Title III – Recognition & Enforcement
Art. 25 – for the purpose of the Brussels Convention, “judgment” means any judgment
given by a court of a Contracting State.Sec. 1 – RecognitionArt. 26A judgment given in a
Contracting State shall be recognized in the other Contracting States without any special
procedures being required.Any interested party who raises the recognition of a judgment
as the principal issue in a dispute, may as per the procedures provided in Sec. 2 & 3 of
this Title, apply for a decision that a judgment be recognized.

 Art. 27 – a judgment shall not be recognized:

If such recognition is contrary to public policy in the State in which recognition is
soughtWhere it was given in default of appearance, if the defendant was not duly served
with the document which instituted the proceedingsIf the court of the State in which the
judgment was given, in order to arrive at its judgment, has decided a preliminary question
concerning the status/legal capacity of natural persons, rights in property arising out of
matrimonial relationship, wills/ succession in a way that conflicts with a rule of private
international law of the State in which the recognition is sought.

LUGANO CONVENTION
The Lugano Convention 2007 is an international treaty negotiated by the EU on behalf of its
member states (and by Denmark separately because it has an opt-out) with Iceland, Norway and
Switzerland. It attempts to clarify which national courts have jurisdiction in cross-border civil
and commercial disputes and ensure that judgments taken in such disputes can be enforced
across borders. The UK has applied to accede to the convention as an independent member now
that it has left the EU. This would require the agreement of all signatories, but the EU has
recommended that member states to say no to the UK’s accession.

• The Lugano Convention provides for the recognition and enforcement of a wide
range of civil and commercial judgments between the EU and EFTA states. It's an
international agreement and other states may join subject to approval of the present
parties to the agreement.It attempts to clarify which national courts have jurisdiction
in cross-border civil and commercial disputes and ensure that judgments taken in such
disputes can be enforced across borders.Lugano is a multi-lateral treaty that sets out a
regime governing where court proceedings should be commenced and how
judgments from national courts should be enforced in other contracting States. The
contracting States to Lugano are the EU, Denmark and certain EFTA states (namely
Iceland, Norway and Switzerland).
• On 4 May 2021 in a major blow to the UK legal sector, the EU Commission
officially recommended that European Union (EU) Member States do not give
 consent for the UK to join the Lugano Convention on Jurisdiction and the
Recognition and Enforcement of Judgments in Civil and Commercial Matters
2007. The Commission took the view that as the UK has chosen to opt out of the
European Economic Area (EEA) and the European Free Trade Association (EFTA)
the UK should not be afforded special privileges and further, UK membership
would offend the principles of the Single Market.
• What is the Lugano Convention?
• The Lugano Convention is a multilateral treaty between the EU and three out of
the four members of the EFTA (Switzerland, Norway and Iceland). It provides a
framework similar to the Recast Brussels Regulation, a piece of EU legislation
that provides Member States with a regime to govern the allocation of jurisdiction
and enforcement of judgments in cross-border civil and commercial disputes.
Closer to its predecessor the 2001 Brussels Regulation, the Lugano Convention
allows parties to litigation to have judgments recognised and enforced in the
national courts of its members. Similarly, EU or EFTA domiciled defendants
(aside from Liechtenstein) can only sued outside of their home state in very
limited circumstances, and where parties chose to submit to the exclusive
jurisdiction of a national court of a member, other members’ national courts are
typically required to accept it. Although a quite prescriptive Regulation, it does
provide parties to a dispute with some certainty.
• The UK’s accession
• Due to the UK’s decision to leave the EU, the UK ceased to be a member of both
the Lugano Convention and the Recast Brussels Regulation at the expiry of the
transition period at 11pm on 31 December 2020. Matters relating to jurisdiction
and the applicable law governing any dispute now fall to be considered under the
common law. Therefore, the UK placed a request for re-accession to the Lugano
Convention as an individual member on 8 April 2020. Article 72 of the
Convention requires unanimous consent to re-join the Convention from its
Members following an application. This looked likely when Switzerland, Iceland
and Norway provided formal notification of their intent to support the UK’s
request for accession.
• However, the EU Commission remained silent on the issue and with the end of the
transition period looming, in November 2020 a cross sector group wrote to the
European Council seeking their approval for the UK’s application. Despite this,
over one year after the UK’s application, in a non-binding recommendation on 4
May 2021, the EU Commission stated:

For the European Union, the Lugano Convention is a flanking measure of the internal
market and relates to the EU-EFTA/EEA context. In relation to all other third countries
the consistent policy of the European Union is to promote cooperation within the
framework of the multilateral Hague Conventions… In view of the above, the
 Commission takes the view that the European Union should not give its consent to the
accession of the United Kingdom to the 2007 Lugano Convention.
Hague Convention

Without the protections of the Lugano Convention, outside of the common law, the UK
only has the Hague Convention on Choice of Courts Agreements 2005 to fall back on.
However, the Hague Convention only applies where there is an exclusive contractual
jurisdiction (choice of court) clause and agreements with asymmetrical jurisdictional
clauses – commonly seen in financial documents – do not fall within the remit of the
Hague Convention. Of particular note, the Hague Convention does not apply to the
following:

 Claims for personal injury brought by or on behalf of natural persons;

 Tort or delict claims for damage to tangible property that do not arise from a contractual
relationship.

There is also uncertainty whether the Hague Convention will apply to any contracts
entered into before 1 January 2021. This is because the Hague Convention only applies in
the UK to agreements entered into after the UK acceded to the Convention. However,
there are serious questions as to when the UK actually acceded. The UK’s stance is that
in October 2015 the UK acceded to the Hague Convention by virtue of being an EU
Member State, a position currently reflected in domestic law (The Civil Jurisdiction and
Judgments (Hague Convention on Choice of Court Agreements 2005) Regulations
2015).Conversely, the EU’s view is that the EU joined as a unit and that the UK only
falls under the Hague regime once it becomes a signatory in its own right. In light of this,
the UK redeposited its instrument of accession to the Hague Convention in September
2020 to ensure that the Hague Convention was in force on 1 January 2021. This creates a
legal grey area for disputes arising from agreements signed prior to 1 January 2021 bu t
after October 2015. In practice, because of the Hague Convention’s position in domestic
law, English courts will likely apply the Hague Convention to applicable agreements
entered into from October 2015, although this is not certain.

What next?

When the Hague Convention doesn’t apply, UK consumers and businesses involved in
litigation with a European element will be reliant on domestic law. In respect of
jurisdiction and enforcement of judgments, this is the common law regime, which can be
challenging to navigate and costly for those not regularly engaged in cross border
litigation. Jurisdictional challenges and related satellite litigation are becoming
increasingly common.
Notably, the EU Commission’s recommendation was not binding on the European
Council and the final decision rests with the 27 EU Member States. Given that the loss of
rights endorsed in the Convention will be reciprocal for EU and Lugano nationals in the
UK, there is a possibility the EU Member States will ultimately provide their suppor t for
the UK’s accession to the Convention but that is unlikely to be a swift process.

CHOICE OF LAW: DOCTRINE OF

RENVOI

 Renvoi is a French word meaning send back/ return unopened. There are 2 types of
renvoi: single & doubleSingle renvoi is called remission in English where legal systems
of two countries are involved but if three countries legal systems are involved then its
called transmission.Once it is decided that a court has jurisdiction & what choice of law
are applicable, the judge will apply the chosen law chosen if the chose law is English law,
the judge is required to give effect to English internal law.eg., where a person dies
intestate domiciled in England, here his property will be distributed by following the
English internal laws relating to property. There is no requirement to give regard to
private international law.

 But if the application of law is that of a foreign country the situation becomes complex.
The difficulty is to determine what is meant by “applicable law”?eg., X, a British subject,
dies interstate, domiciled in Italy & an English court is required to decided how his
movable property in England are to be distributed?According to the English law for
choice of law regarding intestate succession to movable property is governed by the law
of domicile of the person concerned ie., in this case Italian law as being the law of X’s
 domicile at the time of death. But according to the Italian law it must be referred to the
law of England as being the law of his nationality.

 Now the question is what is the meaning of Italian law

Now the question is what is the meaning of Italian law? Does it mean Italian internal law
regulating an intestate’s property or does it mean the whole of Italian law including
private international law as recognized by Italy.If the former is correct, a further
difficulty is caused by the difference between English & Italian laws;& if we refer to the
2nd meaning ie Italian private international law we find the issue referred back to English
law.The question is whether we are to ignore the divergent Italian law or to accept the
reference back that it make to England? If we accept the reference back, are we stop
finally at that point & to distribute X’s property according to the English internal laws?

 Continuing with the eg.,When such a situation is faced, owing to the difference in the
private international laws of the two countries, there are 3 possible solution:Take the “law
of Italy” to mean the internal laws of Italy; orDecide the case on the assumption that the
doctrine of single renvoi is recognized by English law; orTake the “law of Italy” to mean
the law which an Italian judge would administer if he were faced with the matter ie the
doctrine of double renvoi.

 Apply internal laws only- the 1st solution which is generally correct is to read the
expression “law of a country” as meaning only the internal laws of that country. If for
eg., a man voluntarily abandons England & acquires a domicile in Italy where he
permanently resides until his death, the natural inference is that he willingly submits
himself to the internal law of that country where he has taken domicile.

 Doctrine of single renvoi- the 2nd solution is apply the doctrine of single renvoi. For eg.,
if a judge in country A as per his country’s law has to refer to the law of country B, but
the law of country B refers back such a case to the law of country A, then the judge in A
must apply the internal laws of country A. For eg., X, a British national, dies intestate in
Italy & an English court is required to decide how his movables in England are to be
distributed. The English court is directed by its own private international law to refer this
question of distribution to Italian law as being the law of the deceased’s domicile. So
when it refers to the

 Italian law on the area of distribution of movable property, the English court finds that
the Italian law prefers the law of the deceased’s nationality & not of his domicile, & if for
instance an Italian court had been hearing the matter in the first instance it would have
resorted to the law of England. Thus the English court find itself referred back to English
law as because it is the law of X’s nationality. Thus there is a renvoi/remission to English
law.So when the court accepts this remission & distributes the property as per English
law, it would be true to say that the doctrine of renvoi is a part of English law & the
 Italian law has been allowed, although not to give a direct solution to the problem but to
indicate as to what legal system shall furnish the final solution.Forgo’s case – Forgo, a
Bavarian, died intestate in France, where he had lived since the age of 5yrs. The question
before the French court was whether his movable property in France should be
distributed according to the internal law of France or Bavaria. Collateral relatives were
entitles to succeed by Bavarian law, but under French law the property passed to the
French govt., & not to the collaterals. French private international law referred the matter
to Bavarian law but Bavarian private international law referred it to French law. So the
court of France accepted the remission & applied the succession law of France.

 Doctrine of double/total renvoi/foreign court theory- this solution demands that an

English judge, who is required by his own law to the legal system of a foreign country,
must apply whatever the court in that foreign country would apply if for instance it were
hearing the case. Eg.,[an English judge is imagining how a Belgian judge is going to
decide the following matter] a British national dies domiciled in Belgium, leaving assets
in England. A Belgian judge dealing with this matter would be required by the Belgian
private international law to refer to the English law but then he would find that the case is
referred back to him by the English law.

 Now the Belgian judge might accept the remission & apply own internal laws of
Belgium or he might reject the remission & apply the English law. What ever the Belgian
judge would do would determine the decision of the English judge.The English judge
also has to see whether the doctrine of single renvoi is recognized by the particular
foreign country’s law to which he is referred. For instance this doctrine of single renvoi is
repudiated in Italy but acceptable in France. So if the issue in England court is about the
validity of a will made by a British subject

 Domiciled in Italy, the English judge will reason as follows;

An Italian judge would refer the matter to English law. As being the national law of the
person concerned. But the English law remits the question back to Italian law as being the
law of his domicile. The Italian law doesn’t accept this remission, as it repudiates single
renvoi. Therefore an Italian judge would apply English internal law. [the English judge
will do the same ie., apply English law as he has understood the position that an Italian
judge would do if the Italian judge has been faced with the matter.]Yet the position in
France would be completely opposite result as a court in France would accept the
remission from England & would ultimately apply French internal laws because French
law accepts single renvoi doctrine.

 Objections to the doctrine- the doctrine of double revoi is mainly applicable in England,
N. America & Australia. The main point of objection is that the doctrine objectionable in
principle, is based on unconvincing authority & cannot be said to represent the general
rule of England law.The total renvoi doctrine does not ensure uniform decisions – those
 who favour renvoi desires that the same decision shall be given on the same disputed
facts irrespective of the country in which the case is heard. In truth, the doctrine of renvoi
will produce this uniformity only if it is recognized in one of the countries concerned &
rejected in the other. Eg., the law of the domicile, to which the English judge is referred,
requires that the case is to be decided exactly as the English court would decide it, what
is the judge to do on finding that by English law his decision is to be exactly what it
would be in the country of the domicile? When will the process of passing the ball from
one judge to another stop? There is nothing apparent as to how this circle can be
broken.Uniformity will be attained if the law of the domicile repudiates the doctrine of
total renvoi, ie., if instead of seeking guidance from a foreign judge, it provided that the
national English law shall govern the matter, for in this case English internal law will
apply & harmony will prevail.

 It seems difficult to justify that a particular doctrine will work (total renvoi doctrine)
only if the other country rejects it. The fact is that uniformity of decisions is unattainable
on any principle/doctrine with regard to matters that are determined in some countries by
the law of nationality & in others by the law of the domicile.The doctrine of double
renvoi signifies the virtual surrender of the English rules for choice of law- if one
removes the technicality of this doctrine, it is nothing but a substitution of the foreign law
for the English choice of law. Eg., British subject who dies intestate domiciled in Italy,
the English law selects the law of Italy as the governing law but the Italian law selects the
English law.

 So when the English judge refers to what the Italian judge would have done, the English
judge applies the internal rules of England & thus shows preference for the Italian law.
The English law is dropped as it does not meet with the approval of the law-makers of
Italy. Moreover the application of foreign country’s law maybe unacceptable for public
policy issues in England.The English principle, for instance, that an intestates movables
shall be distributed according to the law of his last domicile is founded on the reasoning
that rights of succession should depend on the law of the country where the deceased
established his permanent home.

 Thus if the reference to the law of his domicile is means a reference to the internal laws
including private international law of that country, then not only is the policy of English
law reversed but the probable intention of the person concerned(deceased person) is
ignored & flouted. He may for instance have refrained from making a will having been
content with the local laws of intestacy believing that law would be applicable in the
event of his death, but it does not.

 Total renvoi is difficult to apply- this doctrine makes the English judge as ascertain as a
fact the precise decision that the foreign would give. This has 2 difficulties: 1st he must
ascertain what view prevails in the foreign country with regard to the doctrine of single
 renvoi. 2ndly, where the foreign law (which the English judge refers) selects the national
law of the person concerned, the English judge must ascertain what is meant by national
law.The chosen law that emerges from an application of the doctrine depends on whether
single renvoi is recognized by the law of the domicile. If the court of the domicile would
accept the remission made to it by English law, it would then determine the case
according to its own internal laws; otherwise it would apply the internal law of England.
This dependence of the rights of the parties on the attitude of the law of the domicile
towards the renvoi doctrine is a cause of acute embarrassment as it becomes difficult to
obtain reliable information/suggestions because of lack of uniformity of expert witnesses
on in the process.

 Next difficulty that may arise is to ascribe a definite meaning to the expression “national
law”. When the private international law of a country to which the English judge is to
refer, selects the nationality of a person as the concerning factor, it becomes necessary to
correlate the national law with internal law by which the issue before the court may be
determined. This is a simple matter when the person is a national of some country like
Sweden, which has a unitary system of territorial law. There is a single body of internal
laws applicable throughout the territory of Sweden. The position is different where the
country of nationality if a country like India/Britain(one law in England & one in
Scotland) where there are several systems of territorial law.

 FactsRe O’keefe case – the question before the English court was the way in which the
movables of X, a spinster who dies intestate, were to be distributed. X’s father was born
in 1835 in Ireland but at the age of 22 he went to India & except for various stays in
Europe lived there throughout his life & died in Calcutta in X was born in India in 1860;
from 1867 to 1890 she lived in various places in England, France & Spain; but in 1890
she settled down in Naples & resided there until her death 47yrs later in About the year
1878 she had made a short tour in Ireland with her father. She never lost her British
nationality but was domiciled in Italy.

 The English court as per the Private International law of England selected the law of her
domicile. But had an Italian judge been hearing the matter, he would have referred to her
law of the country of which she was a national ie., Britain. Italian judge would have
rejected any remission made to him by the English court as single renvoi is not
recognized in Italy. Now which system of internal law out of those having some relation
to X, would be regarded by the Italian court as applicable? Whether it was the law of
England/Ireland/India? Which of these systems are to be selected by the court of Italy(if
Italian judge would have been hearing the matter)?

 The expert witnesses agreed that the choice of law would be the law of the country to
which X “belonged” at the time of her death. She certainly didn’t belong to England for
applying English internal law, for she had spend not much time in England. She might
 perhaps by reason of her birth in Calcutta, be regarded as belonging to India, but she had
not been in India for 70yrs. It can also be believed that she belonged to Italy as she had
continuously spend the last 47yrs of her life in Italy. But the judge reverted to X’s
domicile of origin & held that she belonged to Ireland because that was the country
where her father was domiciled at the time of her (X’s) birth although she was born in
India.

 In the result therefore, the succession to her property was governed by the law of her
country which she had never entered except during one short visit sixty yrs before her
death; Ireland was not even a separate political unit until 62yrs after her death; she was
ignorant of the succession laws of Ireland. The reasoning on which such a remarkable
result is reached are interesting.1st the judge is required by the English law to the law of
the domicile, then he allows the law of the domicile to

 Be supplanted by the law of the nationality;

then upon discovering that the law of the nationality is meaningless, the judge throws
himself back on the domicile of origin & thus determined the rights of the parties by the
legal system which is neither the national law nor the law of the domicile as required by
the English private internal law. So the judgment seems to be superfluous.

 Re Ross case- A testatrix, a British subject, who was domiciled in Italy, both in the
English & Italian sense, disposed of her property by a will which excluded her son from
the list of beneficiaries. This exclusion was justifiable by English internal law, but
contrary to Italian internal law which required that ½ of the property should go to the son
as his legitima portion (rightful owner). She left land in Italy & movable property both in
England Italy.

 The Judge with regard to the movables that in accordance with the English law the claim
of the son to his legitima portio must be determined by Italian law as being the law of the
testatrix's domicile. He then considered the question ‘what is meant by the law of
domicile? Does it refer to municipal law or does it include its laws of private
international law?In the conclusion the judge applied English internal law & disallowed
the claim of the son. This is the conclusion that an Italian judge would have reached.
Italian judge would have referred to the law of the nationality & would have rejected the
remission made to him by English law. As regards the land(immovable property), the
English law referred to Italian law as the law where the land is situated.

 An expert evidence showed that if an Italian court would have faced the matter, he would
again turn to the law of the nationality ie England & would adopt English internal laws
applicable to immovable property situated in England & belonging to an English testator.
So the English judge applied the same reasoning (which an Italian judge would have done
if he would have faced the matter) & the claim of the son failed.
 Re Askew case – an English marriage settlement made on the marriage of X, a British
subject domiciled in England, to his 1st wife, Y, it was provided that X, if he married
again, might revoke in part the settled trust & make a new appointment to the children of
such subsequent marriage. Some time before 1911, X, who had long being separated
from Y, acquired a German domicile. In 1911, having obtained a divorce from a
competent German court, he married Z in Berlin. Some time before the divorce a
daughter had been born to X & Z in Switzerland. In 1913, X exercised his power of
revocation & made a new appointment in the trust in favour of his daughter.

 If we keep aside the laws of private international law, then when the English court faces
an issue relating to the validity of this appointment in the trust in favour of the daughter,
its clear that the daughter wasn’t a child of ‘subsequent marriage’, for the only marriage
subsisting at the time of her birth was that between X & Y. So the daughter cant possibly
be a child of a non-existing marriage.

 The English judge insisted that the validity of the appointment dependent on whether
daughter was legitimate. The daughter could not claim legitimacy under the Legitimacy
Act 1926 since at the time of her birth her father was married to someone other than her
mother. By English private international law the daughter’s legitimacy depended on
whether German law, being that of her father’s domicile both at the time of her birth &
also at the time of her marriage to Z, recognized legitimation by marriage. In such a case,
German private international law referred the law to the law of the father’s nationality.
Single renvoi was accepted in Germany.

 If for instance a German court was facing the matter, it would 1st refer to English law, &
then on finding a remission made by English law to the law of the domicile, & would
accept this & apply German internal law. In other words, if the English reference to the
law of the domicile meant a reference to the private international laws of the domicile (ie
Germany), the daughter would be legitimate. So the judge applied the private
international law of Germany & decided in favour of legitimacy of the daughter & the
validity of the appointment in her favour in the trust.

 Scope of Renvoi: Applicability & Inapplicable of Renvoi

Contracts -Renvoi doctrine is not applicable to contracts. Its accepted that no sane
businessman or his lawyer would choose the application of renvoi. This objection has
been confirmed by the Rome Convention on the Law Applicable to Contractual
Obligations.Validity of bequests- where the essential validity of a will/intestate
succession to movables is determinable by the law of a foreign country, the view that
would be taken of the matter of the foreign judge, if he were hearing the case, must be
adopted.[Applicable]
 69 Claims to foreign movables [applicable]- issues relating to right to foreign movables,
the court will apply private international law of the country where the movables are
situated.Family issues [applicable]- relating to family issues, clear authority for
application of renvoi is present specially relating to recognition of legitimation by
subsequent marriage.

 .