Private International Laws

Unit-1
Definitions: Private international law refers to that part of the law that is administered between private
citizens of different countries or is concerned with the definition, regulation, and enforcement of rights in
situations where both the person in whom the right inheres and the person upon whom the obligation rests
are private citizens of different nations. It is a set of rules and regulations that are established or agreed upon
by citizens of different nations who privately enter into a transaction and that will govern in the event of a
dispute.

 Cheshire- “PIL is that part of law which comes into play when the issue before the court affects some
fact, event or transaction that is so closely connected with a foreign system of law as to necessitate
recourse to that system”.
 Baty- “PIL is the rules voluntarily chosen by a given state for the decision of cases which have a foreign
complexion”.
 P Tandon- "Private international law is a body of principles determining questions as to jurisdictions
and questions as to selection of appropriate law, in civil cases which present themselves for decision
before a court of one state or country, but which involves a foreign element i.e, which effect foreign
persons or foreign or transactions that have been entered in a foreign country or with respect of foreign
system of law"
 Pitt Cobbet- "Private international law is the body of rules for determining questions as to selection of
appropriate law, in civil cases which present themselves for decision before the courts of one state or
country, but which involve a foreign element i.e, which effect foreign persons or foreign things or
transactions that had been entered into wholly or partly in a foreign country or with reference to some
foreign system of law."
Doctrine of Comity: The basis or foundation of Private international laws arises out of the need of
internationally compatible legislations. The doctrine of comity refers to mutual understanding between
various states, comity is nothing but the accepted rules which are mutually acceptable by different states and
apply the same with cooperation, giving ease to each other. The term 'comity' comes from the Latin word
'comitas', which means courtesy or politeness.

 In essence, it is a recognition by one country of the validity and effectiveness of the laws and judgments
of another country, even though they may conflict with its own laws and interests.
 This recognition is not based on a legal obligation, but rather on considerations of mutual respect,
cooperation, and goodwill.
 However, this doctrine is not absolute, and there are exceptions where a country may choose to disregard
the laws or decisions of another country.
 For example, a country may refuse to recognise the laws of another country if they violate its own
fundamental values, such as human rights or the rule of law. Additionally, a country may choose to
refuse recognition of a foreign judgment if it is contrary to its own public policy.
Theory Of Justice-The Theory of Justice was developed by Dr Graveson with the only basis of delivering
true justice. Ideally Dr Graveson also believes that his theory is not a straight jacket rule for every case
possible, but his main aim is to deliver pure justice keeping in mind precedents, having good conscience and
equity.

 In words of Graveson, “one of English legislative and judicial justice, based on what English statutes
say and what English judges do in cases to which the conflict of law applies. It is thus both pragmatic
and ethical.”
 According to him private international law has a threefold premise, namely- sociological, ethical and
legal. Sociologically, it calls for a need fair treatment of private transactions of individuals
internationally.
 Ethically, it speaks about the desire of English courts to do justice by looking at the training and
traditions of jurors, judges and lawyers in their day to day delivering of justice. Lastly, legally, it rests on
the terms of oaths of the judges.
 The main problem in this theory is that one must apply the laws of at least one foreign country, but none
is willing to concede to such laws. Giving down to foreign laws and enforcing them when resolving
disputes merely amounts to one sovereign losing his sovereignty in front of another.
Difference between Public International Law and Private International Law:

Unit-2

Unification of Private International Law

There is a primary need for the unification of private international law for two reasons. The private
international law principles that various nations have established are distinct from one another, just as the
domestic laws of various nations are. Consequently, the unification of legislation also occurs in two stages:

1. Unification of internal laws of the countries of the world.

2. Unification of the rules of private international law.
The Berne Convention of 1886, which established an international alliance for the preservation of authors’
rights over their literary and creative works, was the first step toward the unification of domestic legislation.
An international institute for the unification of private law was founded in Rome following World War One.
The institute presently enjoys close ties with the United Nations and the Council of Europe.

 A crucial step in that direction is the Hague Convention of 1955, which revised the 1929 Warsaw
Conventions. This Convention establishes consistent regulations for the air transportation of people and
cargo.
 The laws governing the transportation of people and commodities by water were unified in the Brussels
Convention of 1922-23.
 The laws governing the transportation of people and commodities by water were unified in the Brussels
Convention of 1922-23. The Geneva Convention on International Road Carriage of Goods of
1956 followed. The Convention on the Uniform Law of Bills of Exchange was the outcome of the
Geneva Conference in 1930.
 It is impossible to unify all privacy laws due to fundamental ideological differences among the nations of
the globe. Therefore, unifying all privacy laws is another way to prevent situations where courts in
various nations may reach conflicting conclusions on the same issue.
 A permanent Hague Conference Bureau was established in 1951. This was accomplished in accordance
with a Charter that many nations have ratified. Many further Charters, Conventions, and International
Organisations are attempting to harmonise private international law. International conventions, however,
may only be a component of municipal legislation if they have been acknowledged or included in it.
Functions of Private International Law
Private international laws perform the following functions:

1. Private international law has traditionally been thought of as a set of impartial principles that designate
the relevant legal system and create international jurisdiction. Private international law may have a
specific advantage because it serves as an impartial arbitrator in international conflicts when the law,
culture, and fundamental principles are different. It controls and coordinates matters of the relevant law
and jurisdiction in a somewhat formal manner while respecting legal variety.
2. Private international law aids in establishing the case’s maintainability by indicating which courts have
jurisdiction to adjudicate the conflict, i.e. ‘jurisdiction’
3. Private international law aids in deciding the local or foreign laws to be applied in cases involving
private legal relationships and the existence of foreign content, i.e. ‘choice of law’.

Unit-3

General Principles

Choice of Jurisdiction- The locus delicti is the place of the tort. Jurisdiction is the first issue that has to be
addressed. The first question is, can the court which has a foreign element before it addresses that foreign
element.

 As stated above, the first question in an international case potentially involving conflict of-laws
problems is which court has jurisdiction to adjudicate the matter.

 Although the plaintiff decides where to sue, the courts in that location may not have jurisdiction, or they
may have jurisdiction but be unwilling to exercise it, for reasons of forum non-conveniens (Latin:
“inconvenient forum”), as may happen in some common-law countries.
 The first issue of the court qualified to adjudicate the issue in the foreign case which may theoretically
include conflict-of-laws issues is the issue of jurisdiction of the particular case.

 Even though the complainant may choose where to bring a lawsuit, but the court may not accept the case
as they may not be having the jurisdiction to try the case, may be the curt is unwilling to exercise its
jurisdiction or for reasons of ‘forum non-conveniens’ (Latin: "inconvenient forum"), as it happens in
some of the common law countries

Basis of Jurisdiction-

1. Territoriality: A nation has the authority to control anything that takes place inside its borders. The
territoriality concept enjoys the broadest support among jurisdictional grounds in international law
(subject to various complexities relating to actions that did not occur wholly in one country)
2. Passive personality: A country has jurisdiction over an event that injured one of its citizens.
3. Nationality (or active personality): A nation has jurisdiction over a wrong committed by one of its
citizens.
4. Protective: A nation has the authority to resolve risks to its own security (such as by pursuing
counterfeiters of official documents).
5. Universal: Because a given behaviour is inherently condemned by the world community, a nation has
jurisdiction over it (such as violent deprivations of basic human rights). Of the five jurisdictional bases,
this is the one that generates the greatest debate.

Statutory provisions relating to jurisdiction in India-

The general provisions are contained in the Code of Civil Procedure, 1908. Jurisdiction and Place of Suing
(SS-15 to 20),

• Pecuniary jurisdiction (Section 15)

• Territorial jurisdiction (Section 16 -20)
o Suits related to immovable property (Section 16 to 18)
 Section 16 states that the suit related to immovable property shall be instituted where
such immovable property is situated.
 Section 17 Cases in which the immovable property is situated within the local limits
of the jurisdiction of different courts.
 Section 18 A place of an institution when the jurisdiction of courts is uncertain o
Suits related to Movable property (Section 19)
 Other suits (Section 20)
 Subject-matter jurisdiction -Section 83: Section 84: Section 86:

Successive Stages in a Conflict of Laws case

1. JURISDICTION: In any legal proceedings it is of the utmost importance to ensure that the court that
you approach has jurisdiction to deal with the case. This part of the law, namely, the law of procedure, is
dealt with in other courses and will not further be dealt with in this course.

2. THE CLASSIFICATION OF THE LEX CAUSAE: Once it is established that the court has
jurisdiction to hear a case, then the facts before the court must be categorized under one of the known
categories of Private law. We must therefore ascertain whether we have to do with Law of Persons, Law
of Marriage, Law of Matrimonial Property, Law of Things, Law of Succession, etc. This process is
known as categorization, classification or characterization and can sometimes create problems.

Example: A and B became engaged in France and B terminated the engagement in South Africa without
just cause. The question now arises whether one has to do with Law of Contract or with Law of Delict.
According to French law the illegal termination of an engagement is regarded as a delict while in South
African law such a termination is regarded as breach of contract.

3. THE CHOICE OF THE LEX CAUSAE: After classification the applicable legal system must by
chosen by application of a connecting factor. There exist different connecting factors eg: the locus
contractus, the domicile of a party, the place where immovable property is situated (lex situs) etc. With
regard to the choice of the lex causae the rules of the forum are decisive. The forum will, therefore,
indicate the lex causae according to its own rules of classification.

EXAMPLES: (i) If a problem is characterised as matrimonial property law, then domicile is the
connecting factor which then refers us to the lex domicilii matrimonii as lex causae.

(ii) If a problem is classified as formal validity of a marriage then the lex loci celebrationis will be the
connecting factor and therefore the place where the marriage was concluded will be decisive.

(iii) If a problem deals with the status of a person then domicile is normally the connecting factor and the
lex domicilii will then determine the lex causae. It must be noted that the meaning and the content
(interpretation) of the connecting factor must be determined by the lex fori.
4. Application of lex causae- The final step in the choice of law process is the application of the lex
causae. If the lex causae is South African law, the court applies the internal South African law and the
case is then dealt with accordingly. If, however, the lex causae is a foreign system, then one or more of
problems may arise.

Renvoi:

The Doctrine of Renvoi is the process by which the Court adopts the rules of a foreign jurisdiction with
respect to any conflict of laws that arises. The idea behind this doctrine is to prevent forum shopping and the
same law is applied to achieve the same outcome regardless of where the case is actually dealt with.
“Renvoi” originates from the French “send back” or “return unopened”. The “Convention of Renvoi” is the
procedure by which the Court embraces the principles of a foreign law as for any contention of law that
emerges.

Types of Renvoi

1. Single Renvoi- Nations, for example, Spain, Italy, and Luxembourg work a “Single Renvoi” framework.
In single renvoi, a judge of a country is faced with conflicting rules of his country and sends the case to
the foreign country but according to the law of that country, the case is referred back to his country and
his country accepts sub reference and applies the law of his country.

 In re Ross

The testatrix was a British national, who was domiciled in Italy and had written a will leaving the land in
Italy and the movables both in Italy and England. Where will was valid in England but not in Italy because
she had not left half of her property to her son.

Where the Court had applied the law regarding where the property is situated. The movables in Italy because
the testatrix (the person who writes the will) holds the Italian domicile. As a result, the Judge had applied the
Italian law with respect to the immovable property situated in Italy. As Italy did not accept the renvoi based
issue was decided in accordance with English law.

 Forgo case
A Bavarian national died in France, where he had lived since the age of 5. Where under the Bavarian law the
collateral relatives were entitled to succeed, but under the french law the property will be passed to the
French government but not to the family members.

The French Court held that it would decide the inquiry by applying Bavarian law however the State
contended that the Bavarian Courts would apply French law, and the French Courts ought to do otherwise.
The case was ruled for the French state, and the reference here was to the Bavarian guidelines of contention.

2. Double or total renvoi- Countries like Spain, England, and France follow double renvoi. Total or
double renvoi is also known as "foreign court theory". Cheshire and North defines total renvoi in these
words: "This demands that an English judge, who is referred by his own law to the legal system of a
foreign country, must apply whatever law a court in that foreign country would apply if it were hearing
the case. "The English judge is required to make an imaginary journey to the Foreign land (lex causae)
and sit in the court of that country.
Collier vs Rivaz
A British subject who died domiciled in Belgium made a will which was valid according to English law, but
not according to Belgian Law. At that time the validity of the will should be tested by the law of the place
where the testator was domiciled at the date of his death. If the case were to arise in a Belgian Court, that
court would apply the English law as the law of nationality. The validity of the will was tested by English
Law and the will was held valid.
Re Annesley
An English woman was domiciled in France for 58 years at the time of her death. According to the
principles of English law, she was domiciled in England. Before her death, she made a will, where the will
was valid as per the English law, but it was not valid as per the French law because she did not leave 2/3rd
of her estate to the children. According to the French law 2/3rd of the property goes to their heirs. Where the
France Court did not issue any authorization certificate that she was a French domicile which was necessary
for the acquisition of domicile.
The Court said that it had applied the French law as she was holding the French domicile at the time of her
death. Based on that, the English Courts refer the matter to the French law as the law of domicile and the
French law also referred the same back to England as single renvoi is recognized in France. Therefore, the
French Court would accept the Remission and have applied the Internal law.

No Renvoi- Countries like Denmark, Greece and the United States do not accept Renvoi

Critical Analysis of Renvoi

After looking into the definition, types, points of interest of Renvoi. Critically it can be said that it does not
make a difference to all cases. Renvoi does not discover a spot in the fields of contract or tort and anyways if
there is no Renvoi the court has to apply Internal laws. Despite logical fallacies, this foreign court doctrine
has British and American scholar’s support. Fundamental rules of choice of law are hindered under the
obsession of this Doctrine of Renvoi. Basically, this Renvoi Doctrine has been relied upon to enable Utopian
courts to enforce rights acquired in Ruritania. The rights cannot exist outside the territory of the Law system
that created it unless it is recreated by Foreign law.

Even when a court intends to apply the Renvoi Doctrine it must rely on foreign experts’ information to what
the foreign law is. This need creates an element of inefficiency and oddness in the court’s procedure. This is
also dangerous for a court to apply alien laws of which he does not have elementary ideas as certain degree
of distortion is ordinally unavoidable in applying foreign rule. Thus, it appears that no forum can be relied
upon to apply substantive foreign country law in an entirely consistent manner. This problem is complex
when the court seeks to apply foreign choice of law rules. All these reasons often raise the judges to employ
either foreign or domestic law to their personal view whichever is the better fit. The court ends up
introducing its own doctrine of public policy in the guise of interpreting foreign choice of law.

Proof of Foreign Law

It is clear that the relevant foreign law on some particular matter must be proved, like other matters of which
no knowledge is imputed to the judge, “by appropriate evidence, ie by properly qualified witnesses”, unless
both parties agree to leave the investigation to the judge and to dispense with the aid of witnesses. This is, by
no means a universal law though. By German, Belgian and Netherlands law, for instance, foreign law is
regarded as law, not fact, and is commonly ascertained by personal research by the court itself. The method
of proof by way of expert witnesses has been criticised on the basis that it can involve a vast amount of oral
and written evidence, leading to inordinate delay and expense. A fortiori, it cannot be proved by referring to
a decision as to the law of the foreign country in question given in the courts of some other foreign country.
Nor can it be proved by the assertion of an opinion as to the effect of the foreign law without reference to the
relevant authorities.

However, proof of foreign law, including Scots and Northern Irish law, is rendered easier by section 4(2) of
the Civil Evidence Act 1972. It provides that, when any question of foreign law has been determined in civil
or criminal proceedings in the High Court, the Crown Court, certain other courts or in appeals therefrom, or
in proceedings before the Judicial Committee of the Privy Council on appeal from courts abroad, any
finding made or decision given in such proceedings shall, if reported in citable form, be admissible in later
civil proceedings as evidence of the foreign law. Indeed, the foreign law shall be taken to be in accordance
with such finding or decision unless the contrary is proved, provided it does not conflict with another finding
of foreign law adduced in the same proceedings.

Grounds for exclusion of foreign law: Public policy, Revenue laws, Penal laws

Under Indian laws, the foreign law may be proved with the help of expert opinion and the court also take
judicial notice of such documents that containing foreign law and which are published under the authority of
that particular government. But the application of foreign law may be excluded in these following four cases

1. Public Policy- An eminent scholar stated public policy as the complex concept that refers to those matters
regarded by the Parliament and the Court as one the fundamental concerns of the State and the society at
large. In India, the Court can not recognise or enforce that contract in which the fact of the contract opposed
the concept of public policy. Similarly, an Indian Court does not recognise any right of an individual which
is against the public morality.

2. Foreign Penal Laws- A penal law is the law which contains some punishment for the breach of duties in
respect to the State. A court will not enforce the foreign penal laws both directly and indirectly. Also, when
a particular law is both which contains penal as well as remedial provisions in that case also the court will
only enforce the law which are of remedial nature not the penal one.

3. Foreign Revenue Law- It can also be seen on the same footing as the foreign penal laws. The revenue
law of foreign court can neither impose the burden nor confer a benefit on subjects of any other states. The
court can also not able to collect taxes of foreign countries irrespective of the identity of the person. Only the
court can entertain the foreign revenue laws for any other legal purposes but will not enforce it.

4. Mandatory rules- This concept is of positive nature. The impact of enforcement of mandatory rules is
that a foreign domestic law which used to govern under choice of law is not applied. Apart from these four
exclusions the court will not enforce the foreign laws where the scope of principle is not clear.

Domicile- Domicile is a general legal concept, which describes the country where you consider your ‘roots’
are or where you have your permanent home. The domicile of a person or an individual is generally
applicable to the whole country and not only to a part of it. Domicile is what is termed in international
private law as the “connecting factor” or link between a person and the legal system or rules that will apply
to him in specific contexts, such as the validity of a marriage, matrimonial causes, legitimacy, succession
and taxation.

General principles of Domicile

1. No person can be without a domicile: This rule is based upon the practical necessity of connecting
every person with some legal system by which questions affecting his family relations and family
properties are to be determined. Domicile of origin prevails until a new domicile has been acquired. But
the moment a person loses his acquired domicile his acquired domicile, the domicile of origin springs
back to him.
2. A person cannot have more than one domicile: At any given time through dual citizenship is
permitted by several countries. Main object of this rule is the same as that of the first time to connect a
person with a definite legal system. Domicile signifies connection with a territorial subject to a single
legal system of law.
3. Presumption in favour of an existing domicile: An existing domicile is presumed to continue until it is
proved that new domicile has been acquired. Hence the burden of proving a change of domicile lies
invariable on those who allege that a change has occurred. If the evidence adduced is conflicting or is
not convincing, then court has to decide in favour of existing domicile.
4. Domicile is determined according to English law: In a case involving foreign element, the question as
to where a person is domiciled is to be determined according to English concept of domicile and not
according to foreign concept. In other words, for the purpose of English Private International Law,
domicile means domicile in English sense. Thus, in the eye of English law, a person domicile in England
may acquire a domicile of choice in Frances if he satisfies the English rules, although he may fail to
satisfy the French rules.

Elements: The two requisites for a fresh domicile are residence and intention. It must be proved that the
person in question established his residence in a certain country with the intention of remaining there
permanently. Such an intention, however unequivocal it may be, does not per se suffice. These two elements
of residence and intention must concur, but this is not to say that there must be unity of time in their
concurrence. The intention may either precede or succeed the establishment of the residence.

Residence- Residence in a country for the purposes of the law of domicile is physical presence in that
country as an inhabitant of it. The requirement of residence is easy to establish. Residence is regarded as
being a question of fact and one can be resident in a place where one has no right to be.

Older cases adopted a presumption in favour of domicile that grew in strength with the length of the
residence and was hard to rebut. However, more recent cases have attached less weight to the length of
residence, and have taken the view that, although a material consideration, it is rarely decisive.

Whatever weight is given to the length of residence it is undeniable that time is not the sole criterion of
domicile. Long residence cannot constitute nor does brief residence negative domicile. Everything depends
on the attendant circumstances, for they alone disclose the nature of the person’s presence in a country. In
short, the residence must answer ‘a qualitative as well as quantitative test.”
An Intention to Reside Permanently
The acquisition of a domicile of choice requires an intention by the propositus to remain permanently in the
territory in which he resides. The essence, therefore, of these and many other similar statements is that the
intended residence must not be for a limited period, whether the limitation whether the limitation is
expressed in terms of time or made dependant on the occurrence of a contingency, such as the
accomplishment of a definite task, that will occur if at all during the life of the propositus.

It is also clear that a conditional intention would not suffice. In Cramer v. Cramer, a woman with a French
domicile of origin who came to England intending to remain here and marry an Englishman, who was
already married, did not acquire an English domicile of choice. Her intention to remain was conditional on
both herself and her proposed husband obtaining divorce and their relationship continuing. It would, no
doubt, have been different if she had intended to remain here come what may, but that was not her intention.

1. Domicile of Origin- By operation of law, every person acquires a domicile of origin at birth which can
never be extinguished. Even if a person obtains a new domicile via choice or by dependence, the
domicile of origin is never completely lost; it merely lies dormant in the background and revives itself if
gaps in acquiring and losing domicile emerge.

Domicile of origin has no necessary connection with the place where the child is born, and it is
theoretically possible for persons to enjoy a domicile of origin for several generations even if none of the
persons has resided in such country for any appreciable length of time.

2. Domicile of Choice- Intention and Residence

3. Domicile of Dependence- Domicile of dependents: Which means that the domicile of the dependent
person/s is dependent on, and usually changes with, the domicile of someone else? The object of
determining a person’s domicile is to connect that person with some legal system for certain legal
purposes. In general, at Common Law, dependents, that is, married women, minors and mentally
deficient persons were regarded as incapable of acquiring a domicile on their own, and their domicile
followed that of the person they were regarded as being dependent on. The Common law rule provided
that wives are dependents of their husbands, minors the dependents of the parent through whom the
minor derives his domicile of origin, the father in the case of legitimate children born whilst he was alive
and the mother in the case of both illegitimate children and legitimate children born after the death of the
father.

i. Domicile of Married Women: Under English common law, the domicile of a married woman
was the same as and changed with the domicile of her husband
ii. Domicile of Legitimate Children in India: At common law, where legitimating by subsequent
marriage was effective, a legitimated child is to be treated as if it was legitimate
iii. Domicile of Illegitimate Children: At common Law, in the other Common Law countries, and
in India, the domicile of an illegitimate child was that of his mother.

4. Domicile of Corporation- Corporate domicile refers to a place where a company’s affairs are
discharged. It is also known as the legal home of a corporation because the place is considered by law as
the centre of corporate affairs. Corporate domicile is a place where a company’s principal affairs of
business are maintained. A corporation is considered a citizen of both its state of incorporation and the
state of its principal place of business. Corporate domicile helps in ascertaining the legal status of a
corporation. Corporate domicile also helps in ascertaining taxes on companies.