PRIVATE INTTERNATIONAL LAW - CHC8C

UNIT- I

SCOPE OF PRIVATE INTERNATIONAL LAW:

The scope of Private international law is a Merger of two concepts that is private law and
international law.
Private law
It is a law voluntarily invoked by individuals or States who act in the capacity of an individual
by entering into a legal relationship.
International law is the law arising between different nationals or systems of law
India and other common law countries consider that, private international law is always
concerned with one or more of three questions namely Jurisdiction, Recognition and
Enforcement of Foreign Judgments and the Choice of Law. Therefore, the scope of Private
International Law can be explained with reference to the following three heads:
i) Jurisdiction of Courts and the Rules relating to Private International Law.
ii) The Choice of Law and
m) Recognition and Application of Foreign Law and Enforcement of Foreign Judgments.
It follows three important rules to be followed to bring a matter into the scope of Private
International law
• jurisdiction of courts
• choice of law
• recognition of foreign judgements

Jurisdiction of Courts
When a case comes for trial, the Court must look into the matter that, whether the case has been
filed as per the rules of procedure and also should see that whether it (the court) has power to
adjudicate upon (to try) the case in accordance with the rules of the private international law of
the country in which the court is situated/located. The Court may proceed to adjudicate upon
the case, if the defendant, whether a foreigner or not is present at the time of service of
writ/summons. Thus fundamental rule with regard to jurisdiction of courts is common in all
suits and legal actions and is applied to all defendants including to those, who are living abroad.

• Usually if foreign elements are involved sometimes codes are empowered by statute to
assumed jurisdiction if defendants are absent

1
• Just because the defendant is nearly present in the foreign Court it does not render jurisdiction
to it in cases like divorce etc

• if a defendant is domiciled in a member state of European community there are certain

different rules applicable for it

• Where the parties are of different nationals

• Place of contract performance

• Place of breach

are determinants to decide the case

⚫ The enforceability of foreign judgements are usually difficult. so is the place and how

the dispute will be resolved would be decided earlier and it is better to do so

⚫ The good neighbour policy is adopted where another country decides on behalf of

another country.

Choice of Law

• If a case is decided by English court as by its jurisdiction the next step is to decide the choice
of law which is whether it is in the same country or a foreign country

• For example

in English private international law the property of a British subject who dies in this
state on whose domiciled in Italy will be distributed according to Italian law. this is not a
straight jacket solution but different parts of cases can apply different laws.

• Owing to the foreign elements in the case the foreign law is a fact that must be considered
while deciding the case

• What the judge tries to do is that he creates a right nearly as possible or similar to the one
created under foreign law and enforces it or applies it

Recognition of Foreign Judgements and Decree

Usually no country is bound by the decision of another country. does and forcing them to do
the same is also difficult

• where for example, Litigation is held abroad but the defendant has assets in England or
another country it will be important to ascertain whether English law will allow for the
enforcement of a foreign judgement.

Provided, foreign countries must have jurisdiction to decide and then it will be enforced in the
English courts . This is usually not accepted by another country.

2
• Membership of the European Union list to specific rules for recognition of judgement from
courts of member states.

In case the foreign judgement is given by the court not competent to try, it would be given no
effect. The question whether a particular court is competent to try a particular case is
determined by the private international law. In India, the Code of Civil Procedure, 1908
provides for the provisions relating to the recognition and enforcement of foreign judgments.
that all those coming under these three categories come under the scope of private international
law.

Usually, a foreign judgement is enforced by filing a second suit in the domestic court to obtain
relief based on it; in some cases, however, the law allows the execution of the foreign
judgement, thus obviating the necessity of filing a second suit.

THEORIES OF PRIVATE INTERNATIONAL LAW

‘Private International Law’ is also known as the ‘Conflicts of law’. Globalization has led to an
increase in the business activities between various parts of the world and hence; people from
various parts of the world are interacting more often than ever before with each other; resulting
in legal relations between the citizens of different nations.

Therefore; private international law is the body of law which comes into play when there is a
conflict between the citizens of different countries, i.e conflicts related to more than a single
jurisdiction. The various theories of private international law are as follows :

➢ Statute theory
➢ International theory (the theory of Savigny)
➢ The territorial or acquired rights theory
➢ The local law theory
➢ The theory of justice

1. Statute theory:
• It is propounded by Bartolus in Italy in 13th century. It is the oldest theory and it is based
on written laws, customs, legislation.
• Italy was divided into many districts Genoa, Milan, Bologna, Venice, Florence, Pisa where
they pronounce and follow different law system.
• Grammatical construction of element to be considered to determine which statute to be
applied.

3
• Types:
i. Statuta personalia – deals with individuals
ii. Statuta realia – deals with things or properties
iii. Statuta mixta – deals with contracts.
• France was divided into countries and followed statute theory of Italy. Finally reached
Dutch, composed by Ulric Huber, propounded 3 principles:
i. Laws within a particular territory is applied to all subject over territory. It does not
have any operative force beyond that territory (Boundaries, people, sovereign –
subject matter)
ii. This law of the territory is applied irrespective of permanent residence of
individuals.
iii. Every sovereign accepts that law which has come into operation shall be in force
everywhere but does not cause prejudice to subjects of other sovereign.

Criticism:

• The theory appears to be very simple, but it is very difficult in its practical applications.
• The greatest difficulties is that to determine which statute is personal, real or mixed.

2. International theory:
• Propounded by Savigny, lies a Roman book called System of Modern Roman Law Vol.8
‘Concept of legal seat’. In Germany it was read by Boanbar. In England it was read by West
Lake. In Dutch it was read by Wharton.
• In the case which deals with law of persons domiciled.
• Cheshire says that cases are decided with legal system to which they most naturally belong
to.
• Savigny dismissed the statute theory as being incomplete and ambiguous. He advocated a
more scientific method based on the assumption that the problem is not to classify laws
according to their object; but to discover for every legal relation that natural seat in the
local law to which in its proper nature it belongs to. Each legal relation has its natural seat
in a particular or local law and it is that law must be applies when it differs from the law of
the forum. The principal determinants are as follows:
➢ The domicile of a person affected by the legal relation.
➢ The place where a thing and which is the object of a legal relation is situated.

4
 ➢ The place where a juridical act is done.
➢ The place where a tribunal sits.

Criticism:

• This theory states on the assumption that there is uniformity in the laws of the countries on
characterization of legal relations, while in fact it is not so.

3. Territoriality theory:
• It was main propounded by Dicey, Beale and its origin is from England.
• Based on statute realia(property). Law of territory based on cause of action lies in supreme.
Foreign law can be applied only to some extent allowed by the sovereign.
• The theory states that a judge cannot directly recognize or sanction foreign laws nor can he
directly enforce foreign judgments for it is his own territorial law which must exclusively
govern all the cases that require his decision.
• The courts of the sovereign state do not apply foreign law but merely recognize the
consequences of the operation of a foreign law.
• Arim John criticised that they narrow the scope of territorial law. It leads to a viscious
cycle. It is possible under rule of choice of law of a country it may happen that right which
is unrecognised by a foreign law may be enforced by court.
• In the case of Dalrymple v. Dalrymple, where the issue arose as to whether Miss Gordon
was the wife of Mr. Dalrymple. Sir William Scott said the cause being entertained in an
English Court, it must be adjudicated according to the principles of english law applicable
to such a case.

Criticism:

• The theory does not give room for us to try any case by reference to the law of the country
where the rights existed or originated.
• Dr. Cheshire has vehemently criticized this theory as being ‘unneccessary’; ‘untrue’ and
‘unhelpful’.
4. Local law theory:
• It was propounded by jurist belong to realist school of jurisprudence.
• Judge made laws as basis of new legislation – realism.

5
• Walter Wheeler Cook propounded extreme application of territorial law and states that “No
court even enforces foreign right as such”
• Kelson states that “apply the territorial law even when foreign element is involved, even
though right of a foreign country cannot be enforced, a similar judgment can be considered.
Laws thus incorporated by considering foreign judgments is called domestic rule of foreign
state”.
• This theory is a slight variation from the territorial theory.
• The gist of this theory is that the court recognizes and enforces a local right that is created
by its own law. But as the dispute in question has a foreign element the court would
necessarily apply the rule of the forum that would be applied in the case of a purely
domestic dispute. But for reasons of social expedience and practical convenience it takes
into account the laws of a foreign country in which the decisive facts have occurred.
• Enforce only lexfori (territorial law).

Criticism:

• This theory affords no basis for the system of private international law.
• The local law theory is based on judicial precedence in determining the outcome of a case.

5. Theory of justice:
• It was propounded by Graveson.
• Law – sociological, Ethical, legal issues addressed by every country. Every law must be
logical, reasonable, fair and ethical.
• The approach of English courts to private international law is pragmatic and ethical. It has
sociological, ethical and legal aspects towards the end of justice.
• According to Dr. Graveson, basis of public international law is
a) sociological, in the international need for fair treatment in the private transactions of
individuals,
b) ethically, in the desire of English courts to do justice and
c) legally, in the obligation of their oath in the office.
• In essence the rules of private international law in England are made from the precedents
with the ultimate view of doing justice.

Criticism:

6
• The application of generally sound principles in this as in other branches of law, may lead
at times to handle individual cases.

PRIVATE INTERNATIONAL LAW OR ‘CONFLICT OF LAWS’

Each Country’s legal system reflects their society’s values. As a result, the National laws and
the structure of domestic Judicial systems vary considerably from State to State. The term
‘conflict of laws’ is a general term to refer to disparities (conflicts) among laws, whether they
are municipal or international laws.

It is a part of the law of the state which comes into operation whenever there is a dispute before
the court which contains a foreign element.

The term, however, may be misleading as it refers to the resolution of conflicts between
competing systems rather than the ‘conflict’ itself. The term is used where the outcome of a
legal dispute depends upon the choice of law applied and the manner in which the common
law courts resolve this conflict.

PIL or Conflict of laws has been termed differently in different countries. In Germany,
Australia, Russia, Scotland, etc it is termed as ‘International Private Law’. It is also called as
Municipal laws in some countries. In the UK, US, Canada, etc the term ‘Conflict of laws’ is
used increasingly.

The conflict of laws may arise mainly in 3 areas –

1) Jurisdiction of the forum court

2) Choice of Law to resolve the dispute

3) Recognition and enforcement of a foreign judgement.

CODIFICATION OF PRIVATE INTERNATIONAL LAW

What is Codification?

Codification can at first have a very broad meaning: enacting a Written formulation of the law.
It stands in opposition to non-written law, such as custom. But custom itself is fashioned after
judicial decisions and contractual practices, which give it some kind of a written formulation.

7
Since customary sources are scattered and difficult to assess, it is useful to codify them in order
to bring them into a coherent body.

The sources of codification are either international or domestic. Almost all branches of law can
be tackled in an international agreement: not only branches of international law itself, but also
various aspects of substantive domestic law, which have been submitted to a process of
unification or harmonization.

Codification of Private International Law:

Private international law can be codified either at the international or at the national
level. The codification of public international law can only occur through an interstate
agreement, but states are able to codify their own approach to foreign relations. Such is the
character of the Restatement Third Foreign Relations Law, which is a form of dusseres
Staatsrecht, but not a codification in the proper sense.

In view of the customary origin of international law, codifying that branch of law purports to
give a comprehensive and as complete as possible body of traditional solutions. The
International Law Commission in the field of "public" international law, and the Hague
Conference of private international law in the "private" sphere are institutions whose mission
is one of codification.

Since the days of the Justinian Codex iuris civilis up to the French, the German and the Swiss
"Civil Codes," codification has also had a more ambitious purpose. It attempts to compress the
whole of a branch of law into a comprehensive unit, a civil code, a penal code, a code of civil
or penal proceedings, a code of public health and so on. It does not attempt to encompass the
whole machinery of law, but only a part of it under the heading of a unifying idea.

The codification of international law, both public and private, has never been so extended.
What is called codification either at Geneva or at the Hague consists of choosing a specific
topic and bringing it into a written form. There does not exist either a thorough code of
international law patterned after a code civil, nor an international code of private international
law. The first codifications of civil law contained some rules of conflict.

This was the case with the Prussian Code of 1792 and the Code Napoleon of 1804, where a
small number of provisions of private international law were scattered within the articles of
substantive law. The Italian Civil Code of 1865 took a more deliberate approach through
preliminary provisions (disposizioni preliminari) on conflicts of law, drafted according to the
nationality principle under the influence of Mancin.A similar pattern was followed in the
German BGB, whose introductory law (Einführungsgesetz) contained basic rules of private
international law.

FRANcOIS RIGA UX The first and the second Italian Codice civile, as well as the German
Bürgerliche Gesetzbuch, codified in the same instrument rules of civil law and conflict of laws
rules. The recent Louisiana and Quebec conflict of laws rules were formally inserted in the
civil codes of those jurisdictions.

8
Consequently, codification has two different meanings which partially overlap.

I. One is formal. It produces a complete body of law, e.g. a civil or a penal code. Up to now
such an endeavor has not been done in the field of (public) international law, where codification
is always restricted to specific topics.

II. The second meaning is of a substantive nature and it draws a distinction between two
policies of codification: either fixing existing rules, for instance customary norms, or imagining
original answers to new problems.

National codes and international codification can equally look backward or forward. Some
codes have been blamed for their obsolete character. For instance the French Code procedure
civile has been labeled as being dead before having been born. The German BGB also met with
heavy criticism at the very moment when it entered into force.24 State legislatures also insert
special rules of conflict into specific statutes. This is a far cry from codification in the proper
sense, even if the legislative intent is to embody in a unique instrument the substantive and
conflict of laws aspects of a definite problem. While such special conflict of law rules are not
inserted in a codification, there is doubt whether according to the principle Specialia
generalibus derogant, they take precedence over the codified general rules of conflict. Another
problem is the concurrence between a state codification and rules of conflict embodied into an
international instrument. The solution will depend on the answer given in each jurisdiction to
the conflict between international and domestic law.

HAGUE CONVENTION

Hague convention is an intergovernmental organisation in the area of private international law

that develops several international conventions, protocols and principles. Also, it develops
several multilateral legal instruments. In the year 1893, first diplomatic session was held. It
was established by TMC Asser. The 7th session took place in 1951 where it gained the
permanent status. It is an intergovernmental organisation that works for progressive unification
of rules with regard to private international law. It came into force in 15th July, 1955. The
conference meets once in every 4 years in the session known as plenary session.

Main function of the Hague convention is to negotiate and draft multilateral treaties and
convention in different fields of private international law. Initially the members of Hague
convention were 43. Now it is developed to 85.

ORGANS

• Secretariat
• Special commission
• Standing government committee
• Council of diplomatic representatives

9
 ✓ Secretariat: It is a permanent bureau. Its role is to add new members (countries)
by voting. If majority is attained then new country becomes a member. It is
always in touch with other national organizations of different countries.
E.g. UNCITRAL, UNHCR, INTERNATIONAL BAR ASSOCIATION.
The secretary general is the head who is assisted by 2 deputy secretary generals.
Secretariat is responsible for publications of drafts of recommendations,
minutes of plenary session, reports, etc.

✓ Special commission: Recommendations for statutes and treaties are made here
which is discussed in plenary session. In plenary session, President of
Netherlands is appointed as leading delegate.

✓ Standing government committee: it sets the date for plenary session also
codifies the statutes, treaties, conventions, etc.

✓ Council of diplomatic representatives: budget is mostly fixed by them as they

represent the member nations.

The Hague convention has totally 40 conventions between 1954 to 2015 where various
conventions based on the areas of marriage, divorce, guardianship, etc are established.

DIFFERENCE BETWEEN PRIVATE INTERNATIONAL LAW AND PUBLIC

INTERNATIONAL LAW

S.No BASIS PUBLIC INTERNATIONAL PRIVATE INTERNATIONAL

LAW LAW

1. Consent It is based on the consent of all It is not based on the consent of the
the States or member countries States.
involved.

2. Object It regulates the relationship of It determines which law will apply

the States inter se and out of two conflicting national laws,
determines the rights and duties in a particular case having foreign
of the subject states at element.
international sphere.

3. Conflict of It does not involve the conflict It involves the conflict of laws.
Laws of laws.

4. Nature It is same for all the states. It may be different in each State.

10
 5. Sources It has sources in treaties, It has its sources in the municipal
customs or any other legal laws of the individual State to which
arrangements between member the litigant belongs.
countries.

6. Application It is applicable to both criminal It is applicable only to personal or

as well as civil cases. civil cases.

7. Subject It mainly deals with the States. It mainly deals with Individuals or
matter Private persons.

8. Municipal It is not a part of Municipal laws It is a part of Municipal laws of a

Laws of a State. State.

9. Jurisdiction It does not involve the question It determines the court which will
as to determination of have jurisdiction based upon the
jurisdiction. question at issue.

10. Scope It is universal in nature and It has minimal scope.

wider in scope.

UNIT - II

DOMICILE

Domicile can be referred to as a permanent home of an individual. Domicile is a legal term

used to refer to the permanent or legal address (place or country) of an individual. The
definition of the term Domicile was given by Lord Granworth in the case of WHICKER V.
HUME by the maxim “UNDE NON SIT DISCESSURUS SI MIHAL AVOCET,UNDE
CUM PROFECTUS EST PEREGRINARI VIDETUR” meaning A person is said to have a
domicile where, he recites permanently without any intention relocating, anywhere else on the
other hand, A person does not seize to have domicile in a country merely due to the reason of
temporary abode elsewhere.

PRINCIPLE:

I. Nobody can remain without a domicile.

II. No person shall have two domicile.

III.Domicile connects to single territorial law, which may be versatile in nature.

IV. Continuing existence is given more importance with regard to domicile.

11
KINDS OF DOMICILE:

1. Domicile of Origin

2. Domicile of choice

(a) Residence/ Habitual Residence

(b) Intention

3. Domicile of dependence

DOMICILE OF ORIGIN:

It is known as the strongest kind of domicile. The domicile is acquired with respect to the birth
place of an individual. This has a tenacious character.unless a person acquires any other kind
of domicile, his domicile of origin will prevail.

Udny V. Udny

A legitimate child will be having their fathers domicile as their domicile of origin. An
illegitimate child will be having their mothers’s domicile as their domicile of origin Posthumus
child will have their mother’s domicile as their domicile of origin. An adoptive child will
acquire adoptive parent's domicile.

Bell V. Kennedy

In this case Bell belonging to Jamaica goes to England for his business matters and often resides
in Scotland for the same business purpose. He was unsure about the settlement in England or
Scotland, so he was treated as a person with Jamaican domicile.

Ramsay V. Liverpool Royal Infirmary

Ramsay is of Scottish origin who lived in Liverpool for 36 years. He Neither changed his
domicile nor returned to scotland. He did not return to Scotland for occasions such as his
mother’s funeral. House of Lords Held: Prolonged residence did not show the intention to
change the domicile. Therefore the domicile of origin prevails.

IRC V. Bullock

A person with Canadian domicile marries an England woman, he has an intention to return
back to his home land in case his wife predeceased him.Therefore he did not change to a
domicile of any other kind and so this domicile of origin will prevail.

DOMICILE OF CHOICE

Any person who is not legally dependent on other (sui juris) can accrue domicile of choice.
After the enactment of The Domicile and Matrimonial Proceeding Act, 1973 a married
woman had a choice to acquire a domicile of her interest.

12
The domicile of choice of two types;

I. Residence,

II. Intention

Length of the residence plays a key role along with other factors. One should also prove, it is
their habitual residence and they don't want to settle anywhere else but return to their own
native country.

Michael Antony Rodrigues V. State of Bombay

A person born in Goa in 1918, he was relocated to Bombay in the year1927. His father has
atailoring business in bombay. This person gets his education done in Bombay and later takes
over his father’s business in the year 1936. In 1946, he joined the armed forces. He gives his
residential address to be his permanent address in his records, by which habitual residence is
proven. He is also enrolled in the local Bombay,s voters list. Considering all these series of his
acts he is given a valid domicile of choice.

Habitual Residence:

When a person makes multiple stays in different territories in other course of life, they
should prove a particular locality as their habitual residence to obtain it as their domicile of
choice.

Plummer V. IRC

Plummer resides in England for nine months and 3 months in Guernsey. On question
of domicile, Hoffman Justice held that despite the tax payer’s intention, she can get a Guernsey
domicile if she proves that to be her chief residence but she failed to do so. Therefore she
retained her English domicle.

Intention:

A person should have an intention to recite should not be influenced by any contingent
factors.

Creamer V. Creamer

A french woman will be marrying an englishman who is already married.so her intention to
stay in england is influenced by certain contingent factors, like divorce of husband from his
previous wife, her future relationship with her husband, etc. So her intention for domicile of
choice needn't be essentially validated.

Mark V. Mark

It says that the intention should be genuine and not for any other purpose.

13
Evidence of Intention:

All the efforts of a person and his dealing in ordinary course of life can be considered or
supported as an evidence of intention for his/her domicile of choice.

Kedar Pandey V. Narayan Bikram shah

Narayan’s father will be having a Nepal’s domicile, but narayan would have moved to
Ram Nagar in India in his young age, even after partition Narayan stayed in Ram Nagar. He
acquired many immovable property in Ram Nagar. He was also enrolled in local voter’s list of
Ram Nagar constituency considering all this series of his act, he is given a domicile of choice
with valid evidence of intention.

Abandonment of Domicile of Choice

Mere intention to abandon or mere residence in another country is not enough for abandonment
of domicile of choice. Thus a person should give up domicile in a residing country and declare
that he have no intention to stay there indefinitely.

Case of goods of Raffene:

A widow that is Madam Raffen, the wife of a french navel officer, she had England as a
domicile of origin and france as domicile of choice. She decided to get back to England. On
the way to england, she died and her domicile of France was retained.

Domicile of Dependence:

I. Infants,

II. Lunatics,

III. Married women (After the year 1973, married women does not come under this

category).

They do not have the capacity to choose their domicile on their own. Therefore, they take the
domicile of the person whom they legally depend on.

I. Domicile of Infants:

Law commission in Britain during 1980’s had an issue whether the,

● Domicile of children should be with respect of their parents.

● Whether domicile of children depend on their habitual residence

● Whether the domicile of children is associated to the country to which they are closely
connected.

14
Domicile of children is more closely associated with the domicile of parents but where the
parents are weekend, they can have an Independent domicile.

After certain developments, mainly 3 rules suggested domicile of children;

1. If a child is gonna reside with both the parents, its domicile will change accordingly with
their parent's domicile. But the domicile of parents is not the same then the child would take
mother’s domicile.

2. If a child is living with a single parent, then the child will take that parent’s domicile
respectively.

3. The cold should be domicile to a country which it is closely connected to.

Married women:

After the enactment of The domicile and Matrimonial Proceedings Act,1973, married
women are not dependent.

Ships: Law of flag will govern the domicile of the ships.

Company: where the company is established, that will be the domicile of that company.

RESIDENCE

The requirement of residence in a country for the purposes of the law of domicile is physical
presence in that country as an inhabitant of it. Residence is regarded as being a question of fact.
Older cases adopted a presumption in favour of domicile that grew in strength with the length
of the residence and was hard to be rebutted. However, in more recent cases less weight has
been attached 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.

In the English case Jopp v. Wood[14], 25 years residence in India and in the Indian case S.P.
Ghosh v. Deputy Collector[15], 10 years residence in England was not considered enough.

Civil duties for a resident in a country includes matters like voting, paying taxes, etc.

The main differences between domicile and residence is that:

1. Domicile is mainly for matters relating to property ,but residence related to day to day
life. assets, liabilities,etc

15
 2. Domicile is a wider concept than residence and residence is only a part of the
requirements needed to prove one’s domicile and intention to domicile. .

RENVOI
‘SEND BACK OR RETURN OPEN’

Doctrine of Renvoi is a legal doctrine which is applied when a court is faced with a conflict of
law & must consider the law of another state referred to as private international law rules. The
doctrine of renvoi is the process by which court adopts rules of foreign jurisdiction with respect
to any conflict of law arises.

A judge sends a suit filed in his or her court to a foreign country as judge feels they do not
have proper jurisdiction to trial the suit. But as per the other foreign country’s private
international law, they may also do not have proper jurisdiction to try the case. So, they send it
back to the original country from where they received it. After getting back reference from the
foreign country, the original country applies its own municipal rules to solve the issue in
relevance with theKinds
foreign law.
of renvoi:

• Single renvoi
• Double renvoi
• No Renvoi

1.Single Renvoi :A ----→ B , B ---→ A

Only 2 countries involved. Countries like spain, Italy and Luxemberg mostly follows this.

IN Re Ross Case, 1930 – Testator is a British national, domiciled in Italy. Testator writes will
where she transfers all her movable and immovable properties to her distant relatives excluding
her son. Son files a suit in English court as per England conflict of law. Here it applies 2
principles, (Lex domicilii to deal with movable properties and Lex Situs to deal with
immovable properties). As per principle of Lex Domicilii the place where the testator has his
or her domicile at the time of death has the jurisdiction to trial the disputes arising out of
intestate succession. Therefore, England sent this case to Italy. As per Italy conflict of law only
the country where the testator holds his or her nationality can decide upon intestate succession.
Therefore, Italy send the case back to England. England with reference from Italy deals with
the case as though the properties were located in England. Judgement is not given in favour of
the son.

Forgo Case – a testator is a Bavarian national who died in France. As per France law, property
goes to the government. As per Bavarian law, property goes to the collateral relatives. Conflict
of law arises that bavarian law should be used for trial. But as per France, French law should
be used for trial. Relatives approached the Prince court to give solution. Case ruled for french
laws and reference here was given to bavarian guidelines of contentions.

16
Re Annesley case – English woman was domiciled in France for 58 years. She died in France.
Before her death she made a will that is valid under English law and invalid under French law,
because she didn’t leave 2/3 of her estate to children. According to French law, 2/3 of properties
goes to legal heirs where the French court did not issue any authorization certificate that she
was domiciled in France. English private international law referred the question of validity of
will in the law of domicile namely French law. French law was taken in wider sense including
French private international law as it applied law of nationality (English law) & English law
would refer the matter back to French law. Partial renvoi is accepted by French law and
therefore, the reference would be accepted and the French internal law would be applied. Thus,
English court applied the French law and held the will to be invalid.

Double Renvoi :

Three countries involved. A ---→ B, B ----→ C, C --→ B, B----→ A

Countries like England, France accepts double renvoi.

Ex. A testator an Irish national is an habitual resident of Spain, domiciled in Italy, holds a
property in France and also died in France. France will examine the law of deceased’s habitual
residence and applies Spanish law. Spanish law applies law of deceased’s nationality. Italy
doesn’t follow double renvoi. Therefore, France will likely apply Italian law.

No Renvoi : Countries like Denmark, Greece and USA do not accept renvoi.

APPLICATION OF RENVOI
The scope of doctrine of renvoi is very limited because of its unpredictability. It is applied in
case of validity of wills and intestate succession, transfer of property, retrospective legitimacy
and marriage, validity of divorce decree, etc...

The Doctrine of Forum Conveniens and Forum Non-Conveniens

Generally, the function of a legal body is to adjudicate the legal issues brought before them
which falls within its jurisdiction. Jurisdiction may be of various types – Territorial, original,
appellate, pecuniary etc. Territorial jurisdiction of the court is considered on the basis of the
place where the cause of action arises wholly or partly. In some cases, one or more courts may
have territorial jurisdiction over an issue. In such cases, the doctrine of forum conveniens is
invoked. The place where this adjudication takes places is known as the ‘Forum’ and choosing
a Forum according to the convenience of both parties is known as ‘Forum Conveniens’.

It must be remembered that the principles of PIL will apply to adjudication only in the absence
of a contract to the contrary.

• FORUM CONVENIENS:

17
 ➢ A jurisdiction decided on the basis of convenience of all the parties involved and
procedures to be followed is referred to as Forum Conveniens.
➢ Under this doctrine, the jurisdiction may be held with one country but the suit can
be transferred to a foreign country or a foreign jurisdiction may be invoked for the
sake of convenience.
• FORUM NON-CONVENIENS:
➢ This is a common law doctrine, that allows a forum to dismiss a civil action though
the forum has proper jurisdiction to try it.
➢ Here, an alternative, appropriate and more convenient forum is fixed.
➢ It may be fixed by the court itself or may even be invoked by the defendant.
➢ A court will not invoke this doctrine where –
a) There is no other forum to hear the case
b) Other forum would not favour the plaintiff monetarily
c) Other forum’s judicial system is grossly inadequate

The difference between Forum conveniens and Forum Non-conveniens is :

Under forum conveniens, before the institution of proceedings, it is transferred to a foreign

jurisdiction.

Under forum non-conveniens, the case is already initiated in one forum, it is then dismissed
and shifted to a foreign jurisdiction for a better convenience.

English and US Law:

This doctrine is an English common law doctrine followed by the English courts.

In the US, similar law is followed in the name of ‘Transfer’. Transfer can happen only in 2
situations:

a) Transfer when the case is commenced in an otherwise proper forum

b) Transfer when the case is commenced in the wrong forum
Out of the above 2, the first instance is more closely connected to Forum Conveniens.

Primary principles to be followed when choosing Forum:

1. Plaintiff should think from shoes of defendant
2. Defendant should not retaliate

18
General factors to decide Forum Conveniens:
1. Strength of the plaintiff case.
2. Possible hardship from Defendant side.
3. Cost and convenience of legal proceedings.
4. Location and availability of witness and other related evidence.
5. Availability of adequate alternative forums for the Plaintiff.
6. Ample use of judicial resources.
7. Whether all the issues may be disposed or solved in a single proceeding.
8. Whether it is mandatory to follow Lex Fori (law of the land) in that particular case.
9. Whether judgement could be enforced.
10. Whether defendant would genuinely prefer the same forum as a convenient forum
11. If defendant objects the forum, to be checked whether the objections are merely
tactical.

English Case Law:

Spiliata Maritime Corp v. Cansulex (1987) AC 460
This case held that the natural forum is that forum with which the proposed action has the most
real and substantial connection. In other words, it is the forum best suited to try the case for the
interest of all the parties involved and to achieve the ends of justice. The interests of all parties
and ends of justice can be decided by the courts. This case also listed few relevant factors in
determining the most real and substantial connection, they are:
a) Convenience of parties
b) Expenses involved
c) Laws governing details of the transactions etc.

Indian Case Law:

Horlicks v Heinz India, Delhi HC, 2009
In the context whether an Indian court could choose to not exercise jurisdiction on basis of the
doctrine of Forum Inconveniens when the second court is also an Indian court, the court
concluded that the principle of Forum non-conveniens applies to Foreign forums and Indian
courts can apply the principle either to a foreign forum or while exercising jurisdiction under
Art. 226 of the Constitution.

19
 UNIT - III

MARRIAGE IN JUDICIAL ATTITUDE

Marriage is an important social institution. It is process by which the union of men and women
is legalised and procreation of children is thereafter legalised. All countries in the world
acknowledge the greatness and importance of marriage and pass several legislations to regulate
the institution of marriage. Marriage is the nucleus so the family. Marriage is dealt with
different laws with different rules in various jurisdictions.

❖ ENGLAND –
➢ England recognises 2 kinds of marriage

1. Lex Loci Celebrations

2. Applying polygamous marriage if it is allowed by that particular person laws

involving parties to marriage

Validity of marriage requires Formal and Essential Validity. Formal validity represents
ceremonies and rights of that marriage. Essential validity represents capacity to marry.

➢ REQUIREMENTS TO CONSTUTITE A VALID MARRIAGE

1. All the formalities with regard to the marriage should be complied.

2. Legal Capacity of the parties.

3. Free consent

4. Consummation of marriage

➢ Case laws –

Hyde v. Hyde – Declared the marriage to be union between 2 people to live with each other
for uncertain period of time excluding others

Tazanowska v. Tazanowska – Lex Loci Celebrations weren’t followed but personal laws
are followed. Hence marriage is valid.

Apt v. Apt – some countries accept the proxy marriage. Ex. Argentina. In this case, women
in England is represented with proxy in Argentina. This marriage held valid in Argentina
but not in England.

Ogden v. Ogden – Parental consent is valid in France but not in England.

➢ EXCEPTIONS TO LEX LOCI CELEBRATIONs

1. Foreign Marriages Act, 1947

2. Military marriages under foreign marriages Act 1892

20
 3. Common law marriages done until 1753

4. Marriage on Board (Travel)

5. Consular Marriages

R. Millis Case – As per common law marriage party should agree in presence of clergymen.
Later due to many changes in practical scenario if the marriage is not witnessed by clergymen
it is still held to be valid.

❖ POSITION IN INDIA –

India is a nation with unity and diversity. Personal laws of the parties are taken into
consideration. It also includes foreign country accepting a local law should also accept that
marriage.

a) HINDU –
✓ Marriages are considered based on Hindu Marriage Act 1955.
✓ Hindu marriages are considered to be merely sacramental and contractual in nature.
Hindu Marriage Act considers only monogamous marriages.
✓ Section 5 of the act prescribes essentials of valid marriage. (i.e.) Minimum age,
consent, capacity to marry and enter into contract of marriage

b) MUSLIMS –
✓ Muslim marriages differ on Sunni and Shia laws. Muslim marriages are considered
to be a polygamous civil contract up to 4 wives the marriage is valid.
✓ Marriages more than 4 are considered to be irregular but not void one.
✓ In case of Shia law, if there is a change of religion after marriage, the marriage is
considered to be void.
✓ A Muslim male has a capacity to marry female of any set of Muslims as well as
Christians or Jewess but not with a fire worshipper or idol worshipper.
✓ A Muslim female cannot enter into marriage with the Non Muslim.
✓ The Shia Muslim recognises 2 types of marriages –temporary (muta) and permanent
marriage. The wife of muta marriages can not claim maintenance from her husband
nor can she inherit his property.

c) CHRISTIANS –
✓ Christian’s marriage are governed by the Christian Marriage Act 1872.
✓ The marriage may performed before a marriage registrar or it may be solemnized
by the minister of religion licensed under this act.
✓ If a Christian male or female wants to perform a marriage with a Non Christian, the
marriage can be performed only under Christian Marriage Act otherwise such
marriage is void.

d) PARSI AND JEWS:

✓ The Parsi considers the marriage as a contract. It is monogamous marriage.

21
 ✓ The marriage and matrimonial; causes among the parsis are regulated by Parsi
marriage and Divorce Act, 1936.
✓ Under the act, a marriage can be performed only between 2 Parsis and for every
marriage the religious ceremony of ashirbad is necessary.
✓ The marriage among Jews is a monogamous union and a contract.
✓ A written contract called katuba between the parties to marriage is essential.

e) SPECIAL MARRIAGES ACT, 1954:

✓ Inter-caste, intercommunal, inter religious marriages can be performed only under
this Act.
✓ Under this act, any 2 persons may opt to perform a civil marriage.
✓ Once the parties choose to marry under the Act, all the matrimonial matters are
regulated by the act.
✓ Marriage under this act is strictly monogamous.

f) FOREIGN MARRIAGES ACT, 1969:

✓ In India, the Foreign Marriages Act, 1969, provides facility for an Indian National
or a national of another country or with a person domiciled in another country.
✓ Marriage under this act is a monogamous union and can be performed only one a
civil marriage.
✓ Any marriage performed abroad may also be registered under this act, provided one
of them should be Indian National.

❖ POSITION IN AUSTRALIA-

➢ It is similar to English law.

➢ However, English law does not recognise Proxy marriage.
➢ Australia, does not accept but recognises proxy marriages if the other party agrees.

❖ POSITION IN CANADA-

➢ It is similar to English law as well.

➢ However, marriage requires Parental consent.

DIVORCE

Whether marriage is valid, then only divorce occurs?

Divorce along with matrimonial causes.

1. Divorce position in England:

• Statute (Matrimonial Proceedings Act, 1857)

22
 Women cannot initiate divorce by this act. But after this act, women can file domicile
and divorce petition.
• Divorce for judicial separation.
• Validity for marriage:
3 rules to determine
(i) Either of party has domiciled in England.
(ii) Either of them have habitual residence in England for 1 year before they die.
(iii) Either of party die in England.
• In order to apply for divorce - 2 things are followed:
(i) Either party should be domiciled in England.
(ii) Habitual residence in England for 1 year period.
• Once divorce is done, matrimonial things relief :
(i) In application of matrimonial relief, decree of divorce is granted by applying English
law of judicial separation.
(ii) In question of nullity, “lex loci celebrationis” (the law of the land (lex loci) where
the marriage was celebrated) law of “antenuptial” (a contract made between two people
before they marry, agreeing on the distribution of their assets in the event of divorce)
domicile,legal capacity or consent of parties are considered.
(iii) Questions related to impotence or willful refusal to consummate are decided by
applying English domicile law or law of domicile of petitioner.
• Reliefs:
English courts grant financial relief as well as pass order in personam by attaching an
immovable property in a foreign country as a matrimonial relief. Similarly, when a foreign
judgments is delivered by attaching an immovable property then English courts may facilitate.

2. Divorce position in Australia:

• Australian Family Law Act, 1975 - divorce cases are decided.
• Criteria for divorce petition are:
(i) Either of the party should be Australian citizen, resident or domiciled in Australia.
(ii) By deciding the validity of the marriage, again the parties should be Australian
citizen or residence or domiciled or present in Australia.
• Relief:

23
 Similar to England. Financial relief or by order of foreign country is given in matter of
relief and also passes other matrimonial relief as deemed to be fit by Australian courts.

3. Divorce position in Canada:

• Canadian Divorce Act, 1985
• Requirement for divorce petition is “Either of party domiciled or residence or citizen in
Canada for atleast period of 1 year”.
• Relief:
(i) Enough flexibility is extended to foreign courts.
(ii) Relevant factors like which country initiated the proceedings first.
(iii) Which country provides better relief, enforceability of judgment by foreign courts
are considered by Canadian courts in giving matrimonial relief.

Jurisdiction of divorce:
I. English law:
➢ Statute - Domicile and Matrimonial Proceedings Act,1973
English court can assume jurisdiction only on two grounds :-
a) Domicile –
Section 1of the Act which abolishes wife`s dependent domicile. Since the Privy
Council decision in Le Mesurier v.Le Mesurier (1895), which was confirmed by the
House of lords in Indyka v. Indyka (1969) that English court has jurisdiction to
entertain a petition for divorce – if parties are domiciled in England at the time of
commencement of proceedings. In the respect of jurisdiction of English courts some
fundamental changes have been effected by the Domicile and Matrimonial
Proceedings Act, 1973 and now lays down that the court will have jurisdiction to
entertain the petition of divorce – if either of the parties to the marriage is domiciled
in England on the date when proceedings are begun (Section 5(2)). Now that the
wife can have her own separate domicile.
Once the court has jurisdiction to entertain the petition its jurisdiction cannot be
defeated by subsequent change of husband’s domicile, but the court will retain
jurisdiction to entertain any cross petition that may be filed subsequently for a
different form of relief (suppose, the petition is filed for divorce, the respondent
may cross petition for judicial separation or vice versa) – (Section 5(5))

24
 b) Habitual residence –
With the Hague Conventions adopting “Habitual residence” as a second basis
jurisdiction, the English law is now giving it full reception. The English court has
jurisdiction to entertain a petition for divorce – if either party to the marriage was
habitually resident in England throughout the period of one year ending on the date
when the proceedings are begun. According to the Law Commission it can be
proved “by evidence of a course of conduct which tends to show substantial links
between a person and his country of residence”. The above two basis jurisdiction
are applicable to all the grounds of divorce including the dissolution of marriage on
the basis of presumption of death.

II. Indian Law:

➢ Although the matrimonial law in India differs from community to community, the
jurisdiction rules differ only slightly.
➢ The matrimonial law of all communities, except Muslims and the Jews is now statutory
laws. The outstanding feature of all statutes is that in all causes the jurisdictional basis
is the same.
➢ Indian Divorce Act, 1869 –
A petition is in any matrimonial cause may be present to the District Court or the High
Court - on the basis of the residence of the parties within the jurisdiction or that the parties
last resided together within the jurisdiction of the court (section 3(3)), or for dissolution of
marriage – the parties are domiciled in India at the time of the presentation of the petition.
In petition of nullity are that such a petition can be presented only if the marriage was
solemnized in India and further that the petitioner was resident in India at the time of the
presentation of the petition “Taylor v. Wenkenbasch (1937)”. In respect of a petition for
judicial separation or restitution of conjugal rights, the additional requirement is that at the
time of the presentation of the petition the petitioner must be residing in India.

➢ The Parsi Marriage and Divorce Act, 1936-

It stipulates for the establishment of special courts know as Parsi Chief Matrimonial
Courts at Calcutta, Bombay and Madras and such other places as the government may
think fit. The courts established at any place other than Bombay, Calcutta and Madras
are known Parsi District Matrimonial Courts. The parsi matrimonial courts are assisted

25
 by seven delegates all of which must be Parsis. The jurisdictional requirement for all
matrimonial causes are same, they are:
(i) In the parsi matrimonial court within the limits of whose jurisdiction the defendant
resides at the time of the institution of the suit,
(ii) (if the defendant is not residing in India), in the Parsis matrimonial court within
whose jurisdiction parties last resided together,
(iii)(with the permission of the court) ata place where the plaintiff is residing or at a
place where the parties last resided together irrespective of the fact whether the
defendant resides in India or not.
Thus, the main basis of jurisdiction is ‘residence’ which has been used in a broad sense. The
Act applies not merely to Indian Parsis but also to all Zoroastrians (including from Iran) who
are either temporarily or permanently residing in India “Sri Jamsedji v. Jijabai 11 Bom”.

➢ The Hindu Marriage Act, 1995 –

Applies to all Hindus. It is also not necessary that they should be Indian nationals (section 2).
The domicile has significance in respect of those Hindus who are outside India.

➢ The Special Marriage Act, 1954-

Domicile is important only in respect of those Indian Citizens who are outside India. Again the
jurisdictional rules no difference is made between matrimonial causes. Under the Act a petition
for dissolution of marriage, nullity of marriage, judicial separation or restitution of conjugal
rights may be presented to the District court within the local limits of whose jurisdiction:
a. The marriage was solemnized,
b. The parties last resided together,
c. The respondent, at the time of presentation of petition resides and
d. The petitioner is residing at the time of presentation of petition, in a case where the
respondent is, at the time residing outside the territories to which the Act extended
has not been heard of being alive for seven years.
The Special Marriage Act, 1954 contains special jurisdictional rules in respect of the wife’s
petition – the District court may entertain a petition by a wife domiciled in the territories to
which this Act extends for nullity of marriage or for divorce if she is resident in the said
territories and has been ordinarily resident therein for a period of three years immediately
preceding the presentation of the petition and the husband is not resident in the said territories
(section 31(2)). It is submitted that the last provision would apply to those cases where two

26
Indian domiciled persons solemnized their marriage in abroad but after sometime their
marriage fails and wife alones comes to India. In a such case, she cannot file a petition under
the main jurisdictional rules but she can do under this special provision. It is in this context that
one can understand the significance of the words, ‘husband is not resident’ in India.

➢ Dissolution of Muslim Marriage Act, 1939-

A legal action for divorce can be filed by the wife alone on any one of the grounds laid
down under the act the Act does not contain any jurisdictional rule and matter is therefore
regulated by the general provisions of the Civil Procedure Code.
A suit for restitution of conjugal rights can also be filed by any wife or husband.
Similarly, a suit for a declaration that the marriage is null and void or a suit for jactitation
of marriage can be filed under ,the Special Relief Act, 1963 such suits provisions of S.20
of the Civil Procedure Code. This means that the suit can be filed in a court within whose
jurisdiction the defendant is residing at the time of filing of the suit or the cause of action
arises.
Since a Muslim marriage is a contract, the cause of action arises, it has been held, at the place
where the marriage is solemnized “Nizamuddin v. Hussani,1960 – a suit for restitution of
conjugal rights”. It has also been held that a suit can be filed at a place where the parties are
residing “Jahoor Ahmed v. Tehrabi,1954” or where the matrimonial misconduct was
committed. In the most of the cases the courts have assumed jurisdiction on the basis of
residence of the defendant or on the basis of accrual of the cause of action. Thus, it has been
held that a suit for restitution of conjugal rights can be filed at a place where their violation
occurred “Smt. Chandanwant kaur v. Sukhdev Singh 1956” or at a place where the defendant
is residing “Nusserwanjee v. Elenora 1914 – where both parties are residing”. The same is the
position of the suit for jactitation of marriage “Bhagwan Ghanshayandas v. Charlotte 1959”
or a suit for declaration that the marriage is null or void “Sophy v. Shiva Prasad 1945”.

Important cases:
➢ Arthur Flowers v. Minnie Flowers 32 All. 203
the parties were residing at Hyderabad, where the husband also worked. The Husband
used to go to Meerut for official visits, on some of which the wife also accompanied.
Subsequently, he filed a petition for judicial separation at a Meerut Court on the ground
of adultery of his wife. Declining to exercise the jurisdiction, a full bench of Allahabad

27
 High Court said “a mere casual visit to a place for a temporary purpose with no intention
of remaining is not dwelling and where a party has fixed residence out of jurisdiction,
an occasional visit within jurisdiction will not suffice to confer jurisdiction by reason
of residence”.

➢ Murphy v. Murphy 1921 Bom. 211

a case under the Divorce Act, 1869. After the marriage, the parties lived together in a
Bombay hotel for the greater portion of a month; then the husband was on leave from
the active service in Mesopotamia. After that he left Bombay to join his service. Parties
had not established a matrimonial home at any place whatever and the living at the
Bombay hotel was all the living together that the parties had. On these facts, the
Bombay High Court said that since parties have no residence anywhere else, their stay
together in Bombay, howsoever temporary was the place where they resided together.

➢ Christopher Neelkantam v. Annie Neelkantam 1959 Raj.133

where an Indian domiciled Christian solemnized his marriage with an English
domiciled woman in London. His wife refused to accompany him to India, when he left
England for India. On arriving in India, the husband instituted divorce proceedings
against his wife in a Rajasthan Court said that the court has jurisdiction since the
petitioner was domiciled in India.

➢ Indyka v. Indyka 1969 –

in this Indyka test may be formulated thus, if there is a real and substantial connection
between the party, obtaining divorce and the country of the court which dissolved the
marriage, then the foreign decree of divorce would be recognized. In this case two
persons domiciled in Czechoslovakia got married in 1938. In 1946 the wife, who had
remained in Czechoslovakia and was resident there, obtained a decree of divorce from
a Czech Court. In Mather v Mahoney 1968 a further extension of this rule was made by
laying down that if the court of the place where one of the parties has a substantial
connection recognizes a decree of divorce passed by a foreign court, then the English
Courts too would recognize it.

28
 ADOPTION

POSITION IN ENGLAND:
According to The English Adoption Act,
• No adoption can be made without an adoption order from competent A count
• No 2 persons can simultaneously adopt a child unlesss they are husband and wife.
• The person should have completed 21 years of age to make an adoption.
• Before an adoption, the child should be in possession of the adopter atleast for a period
of 3 months before adopting.
• The consent of parent or guardian of child is necessary. If either one spouse is applying
the consent of other spouse is important.
• No adoption can be made unless the court finds the adoption to be for welfare of the
child.

Exception: The consent of the parent can be neglected if it is proven that the parent did not
exhibit reasonable care for the child.

JURISDICTION IN ADOPTION:
Jurisdiction of English Courts:
The following conditions apply to England & Scotland where the courts have jurisdiction in
cases of adoption if:
• The applicant if domiciled in England or Scotland
• If the applicant and the child reside in England

Case Law: Re:B(s) an infant

Mother of a spanish domiciled child wanted to give her child in adoption to English domiciled
parents. Consent of the father was not obtained, however he did not give due care to the child.
The mother had already given the child in possession to English parents when the child was 8
days old. The applicant of adoption order plead to ignore the consent of the father, as he did
not exhibit due care. The Court made the adoption valid entrusting the welfare of the child.

Adoption Order:
Mostly all England adoptions are based on the adoption order.
This has 2 main effects:
• It extinguishes the rights, duties, obligations and responsibilities of parents or guardians
in relation to future custody, maintenance and education.

29
 • It passes all such rights and obligations to the adoptive parents as if the adopted child
is born out of lawful wedlock.
Main Acts/Statutes/ Legal provisions for Adoption in England:
1. Adoption Act,1958.
2. Adoption Act, 1968

POSITION IN INDIA
Under Hindu Law:
The major legislations regarding and governing Adoption under Hindu law are:
1. Hindu Adoption & Maintenance Act,1956
2. Guardians and wards Act, 1890
Conditions for adoptions:
i.Both the adoptive parents and the natural parent should be Hindus.
ii.If one parent ceases to be Hindu or if the other parent is dead, then the guardian may give the
child in adoption.
iii.In India adoption order is replaced by certain ceremonies as per the religion.
iv.The act does not discuss about domicile or nationality of adoptive parents.
v.If a child is given in adoption by a guardian, they need to get permission from the court. If one
parent is alive then ceremonies are enough for giving adoption.
vi.The court will consider the welfare of the child in validating the adoption of the child.
Effect of adoption:
• The main effect of adoption is that all rights and obligations are transferred.
• Similar to England's approach, the child is removed from the natural family &
transplanted with an adoptive family. It also the follows the Sapinda relations when
done so.
Case Law: Re Sister Gemma
A French domicile lady wanted to adopt a destitute child. Entrusting the welfare of the child,
the court allowed the adoption.

GUARDIANSHIP AND MAINTENANCE

In Spite of the birth of a child out of legal wedlock or not, the welfare of the cold should be
considered primarily and maintained accordingly. Guardianship and maintenance are such
concepts that help in attaining it. Presently, countries started to consider the welfare of the child
as more essential than the parental rights. A person who is under 18 is considered as minor
under the Indian Laws and the English Laws. Minors are the subject matter of the Guardianship
and the Maintenance. Even the parties to the Matrimonial cases also receive maintenance in
certain circumstances.

30
GUARDIANSHIP:

Law of guardianship implies exercise of parental control and care over children by parents or
in their absence or when they are not capable of exercising it, by the guardian. Matters include:
It includes matters relating to;

● Guardianship

● Custody

● Maintenance

● Education

● Care and control and access to them.

In short, all the aspects of upbringing the children.

Guardianship V. Custody:

The distinction between guardianship and custody under English Domestic Law and Indian
Domestic Law particularly under Muslim Law exist. But there is no such difference or
recognition made under the private international law.

Doctrine of Parens Patriae:

Parens Patriae the public policy power of the state to intervene against an abusive/negligent
parent, legal guardian or an informal caretaker and to act as the parent of any child, individual
or animal who is in need of protection.This principle is expressed in the English and Indian
Domestic Laws, as it is welfare under its jurisdiction. English Law extends this to all subjects
in spite of Jurisdiction in some circumstances.

I. JURISDICTION:

Let us see how the courts assume jurisdiction in various cases and scenarios.

★ Nationality

★ Domicile

★ Place of residence

NATIONALITY:

Except English Law, other continental countries recognise Nationality as a basis for
determining Jurisdiction.

Re Tarunchandra Ghose (1930):

31
In the Presidency High Court, have all along executed the jurisdiction in matters of appointing
guardians or committing custody of the minor, irrespective of the fact whether the child or his
property was outside jurisdiction. Presently, Article 225 of the Constitution retains this in India.

DOMICILE:

The English Court will have jurisdiction in regard to British Subjects resident abroad, only if
the infant is domiciled in England. As far as, in India, we didn't consider domicile as
jurisdiction in any judgment.

PRESENCE AND RESIDENCE:

The English Courts have exercised the jurisdiction over minors present within the jurisdiction
even though they were foreign nationals or ordinarily resident abroad. Here, the crown as
Parens Patriae of all children present within the realm owes a duty to protect them and to look
after their welfare.

Hope vs. Hope (1965)

II.CHOICE OF LAW:

In English Courts, when the question arises in deciding jurisdiction,they don't follow the law
of domicile and nationality.

Johnstone vs. Beathie (1843)

In India, though we don't have questions relating to choice of law, we apply lex fori ie., in
addition to the Guardians and Wards Act,1890; the personal law of the child is also considered.

III. RECOGNITION AND ENFORCEMENT OF FOREIGN GUARDIANSHIP

ORDERS:

Initially, the English Courts, did not recognise the foreign orders regarding Guardianship.

Principle:

“Welfare of children is paramount consideration.”

Here orders relating to children are not final and can be changed at the discretion of court on
change of circumstances.

In Stuart vs. Bute (1861) The foreign guardianship was recognised. The Court held that there
was but one subject which ought to be kept strictly in view and that was the interest of the
infant. The practice of non-recognising the foreign orders is still not abandoned completely. In
India, we are in the primitive stage.Though we have some precedents, those has been rendered
on the basis of the English precedent.

32
In Margrett Vs. Chakoo (1970), the Kerala High COurt on referring the decisions made in
some English precedents, recognised the German order of custody in order to ensure the
welfare of the children.

MAINTENANCE:

In a matrimonial case, the supplementary proceedings usually take place to give relief to the
part and their children based on the circumstances.

Matters Included: Broadly speaking it includes;

● Financial Provisions

● Children of the family

● Children of the either party

● Custody of the children

● Education of the ChildrenIn English Law, they have The Matrimonial Cause Act,1973. It
has 44 sections

and 4 parts of which,

➔ Part 2 - Financial Relief for the parties to marriage adn children of the family.

➔ Part 3 - Protection , Custody, etc. of children.

In India, we have two proceedings:

★ Proceedings for maintenance and alimony of spouse.

★ Proceedings for maintenance custody of children.

I. JURISDICTION:

In English Law, if it has jurisdiction for main proceedings, then it has jurisdiction for ancillary
proceedings.

Harten Vs. Harten (1957)

The Court said that it would exercise jurisdiction over the children who were abroad, as it
considered this to be an exceptional cases.

Domicile and Matrimonial ProceedingsAct, 1973; As per this Act, the English Court can
now exercise jurisdiction on and application for an order for financial provision on the ground
of wilful neglect to maintain by either of the spouse of children.

II. CHOICE OF LAW:

33
The English Private International Law is applied to the parties irrespective of the domicile in
any ancillary proceedings. The application of foreign law may be necessary in some situations
when it is under;

➔ The Maintenance orders (Facilitate for Enforcement) Act,1970, application of foreign law
may be necessary.

➔ The Maintenance (Reciprocal Enforcement) Act,1972.

III. ENFORCEMENT OF FOREIGN MAINTENANCE ORDERS:

At Common Law, the foreign maintenance orders were enforced if they were enforced if they
were final and conclusive.

Harrop Vs. Harrop (1920),

But as the Common Law provisions were not sufficient to meet all situations, they were
supplemented by several statutes.

➔ The Maintenance Orders( Facilities for Enforcement ) Act,1920.

➔ The Colonial and other Territories (Divorce Jurisdiction)Acts, 1920 - 1950.

➔ The Maintenance Orders Act,1950

➔ The Maintenance Orders ( Reciprocal enforcement) Act, 1972.

The Act of 1972 can be extended to any county in the by an order in council which accords
reciprocal treatment to the United Kingdom.

CONCLUSION:

Though we guarantee guardianship on the basis of jurisdiction based on domicile, the scope
and objective can be extended if the minor's nationality and place of residence were taken into
consideration ,unless they become a demerit to that minor.

As well as, the courts should start recognising and give effect to more foreign custody or
guardianship, if it would increase the standard of welfare of that child concerned. To conclude,
though the parents are departed due to any reasons, the maintenance of their children should
be ensured as well as the other spouse who is dependent on the other.

34
 UNIT-4

E-CONTRACTS

Electronic Contract refers to a contract that takes place through e-commerce, often without the
parties meeting each other. If refers to commercial transactions conducted and concluded
electronically. A customer drawing money from an ATM machine. An example of electronic
contract. Another instance of e contract is when a person orders some product from an online
shopping website.

Validity of E-Contracts

Under English law Nothing in Indian contract Act, 1872 protibets the enforceability of
electronic agreements if such agreements possess all the essentials of a valid contract. Feel
Consent is a quintessential characteristic of a valid contract. When a contract transcends
beyond boundaries the legal regime of a single country becomes inadequate to regulate and
control the implementations of the international contract.

Example: a contract may be made in one country, the place of performance maybe in another

country and the subject matter may be situated in the third country the parties to the contract
may be domiciled in the fourth country. In such instances it is difficult to find out which law is
to be applied to govern the rights and liabilities of the parties to the contract. Some countries
apply the laws based on the place of contract formation and some countries will apply the law
as to the place of performance.

Under Indian and English private international law the parties are to choose proper law of any

country which could govern their contract. In the case of Vita food product inc v. Unus
shipping Co Limited it was held by the privy Council that the parties were free to choose any
governing law irrespective of its connections with the contract, provided that the choice was
Bonafide, legal and not contrary to public policy.

The choice of law i.e., the decision as to which country is to be applied will be either implied
or Express in the contract.

Express means the contract itself contains the explicit provisions of the specific governing law
in a situation where there is a conflict. In case the contract doesn't contain any specific
provisions then the country between which there is a closest and real connection with the
contract is taken into consideration. This was held in the case of Jonathan v. the
Commonwealth of Australia.

Implied

When the intention regarding governing law is not expressly stated, intention to be inferred
from the terms and nature of the contract, circumstances and the inferred intention determines

35
the proper law of contract. The court should find out the implied intention to govern the contract,
in the absence of such implied intention the court has to find out the intention. The major task
of the court is that they have to find the intention under which the reasonable man and a prudent
man under the same circumstances would have did, the judges should have placed himself in
the place of the reasonable man and find out the intention of the parties.

Similarly,if a contract or a particular provision of a contract is valid under the law of one
country and invalid under the law of another country. Then the country which validates the
contract or provision can take into consideration the contract. This is because the court will
consider the proper law which validates rather than invalidates the contract.

NEGOTIABLE INSTRUMENTS

Negotiable instruments are written contracts whose benefits could be passed on from its
original holder to new holder. In other words negotiable instruments are documents which
promise payments to the assignee or a specific person. These instruments are Transferable
signed documents which promises to pay the bearer or holder the sum of money when
demanded or at any time in the future.

The English law and the Indian law adopts the general principle that liability of each separate
contracting party is governed by the law of place where a separate contract is made. The party
has no right to select their own proper law. It has to be noted that both in English law and Indian
law regarding Negotiable Instruments have been codified; in England, the Bill of Exchange
Act, 1882 and India, the Negotiable Instrument Act 1881. This codification covers conflict of
laws rules in relation to Negotiable Instruments. But the statutory provision in England as well
as in India is not exhaustive. Therefore in regard to matters not covered by statutory provisions
the general principles of Private International Law should be applied.

Position in England

The basic rules of law on the subject in England are:

1. An instrument is negotiable if it is negotiable by an established custom of the mercantile

world in England, or by English law,

2. The essential features of such an instrument are that it can be transferred by endorsement
and delivery, or mere delivery, and if the instrument is in the hands of the holder, his rights are
not affected by any defects in the title of a prior transferor or holder.

3. The rights of the parties are to be determined by applying the provisions of the Bills of
Exchange Act, 1882 to the extent to which it applies"

● When a bill drawn in one country is negotiated, or accepted, or is payable in another country,
its validity as to form is determined by the law of the place where it issued, and the validity of
the subsequent contracts of acceptance, endorsement and acceptance under protest are
determined by the law where the subsequent contract is made.

36
● This general rule is subject to two exceptions, i.e., a bill would be valid even if is not stamped
in accordance with the place where it is issued, and between parties who negotiate, or hold or
become parties to it in the United Kingdom, it would be valid if it conforms to the formal
requirements of the law in the United Kingdom.

● A negotiable instrument is often regarded as a single contract, but as the (English) Bills of

Exchange Act, 1882 makes clear, it is a series of consecutive contracts, governing, for instance,
its issue, its acceptance, indorsement, etc; this is also how they are regarded on the Continent
and in the United States."

Position in Australia

● The position is broadly the same in Australia, where the law is codified in the Australian
Bills of Exchange Act, 1909 and, after 1 July, 1987, by the Australian Cheques Act, 1986."

● Negotiability is determined by Australian law, which includes the custom of merchants in

Australia.

● There is no specific provision relating to the capacity to make a bill of exchange in the Bills
of Exchange Act, but the Cheques Act provides that capacity is governed by the law of the
place where the contract is made.

● The other rules are broadly the same as in English law except that, in the case of cheques, it
is provided that the construction and effect of a cheque has to be determined by the law of the
place where it is to be performed, that is, the place where it is payable."

● As far as cheques are concerned, the necessity for presentment, and the sufficiency of
presentment, is determined in accordance with the law of the place where it is payable.

Position in Canada

The law is broadly the same as in England, and the Canadian Bills of Exchange Act 1890, is
modelled on the English Act. There are few Canadian decisions. It has been held that if a Bill
is payable in another country, the law of that country determines the validity of the presentment.

Position in India

● The position is regulated by the Negotiable Instruments Act, 1881 which though enacted
earlier than the Act in England, has substantially the same provisions.

● Promissory notes, bills of exchange and cheques are negotiable instruments under the Act,
and the same rules apply to distinctively Indian negotiable instruments such as hundis."

● A promissory note, bill or cheque made in India, and payable in, or drawn on, a person in
India is an 'Inland Instrument, and all other instruments are 'Foreign Instruments'.

● A foreign bill must be protested for dishonour if such protest is required by the law of the
place where the bill was drawn.

37
● Subject to a contract to the contrary, the liability of a maker or drawer of a foreign promissory
note, bill of exchange or cheque, in all essential matters is determined in accordance with the
law of the place where it was made or drawn, and the liability of the acceptor and endorser by
the law of the place where it is payable. The statutory illustration to that section is instructive:
if a bill is made in a place where the rate of interest is 25 percent, and is accepted and payable
where the rate of interest is six percent, and is dishonoured, the acceptor is liable to pay six
percent interest, and the drawer, 25 percent.

● Where a bill is payable at a different place from where it is made, or endorsed, the low of the
place where it is payable determines what constitutes dishonour and what notice of dishonour
is sufficient.

If an instrument is made, drawn, accepted or endorsed outside India, but in accordance

with the law of India, it is to be regarded as valid in India notwithstanding the fact that the
agreement evidenced by such instrument is invalid according to the law of the country where
it was entered into."

CORPORATIONS

Main difference between a company and a corporate is the size. corporate/ corporation is
generally large in size, where as a company is small in size comparatively. A corporation is a
legal entity. Corporations has unlimited liability. In a corporation shareholders are held liable
and in a company the board members are usually held liable.

Essentials / conditions to constitute a corporation:

1. Whether the corporation had been validly incorporated.

2. Identity - Legal entity

3. Defined members

4. Defined shareholders

5. Defined officers

6. Defined rights and liabilities of members

7. Existence of business operation

8. Internal management and procedure

9. valid businesses among corporate players and outsiders.

Same as an individual, a corporation's domicile will help with the jurisdiction. A corporation
should have only one domicile and can have many residences. The domiciled place can be
identified by seeing where that corporation is paying its taxes.

38
Position in England

Taxation is given a key part in determining domicile and residence. A foreign corporation if
made to pay any taxes in a country then it assumes the status of a resident in that country. A
corporation can have only one domicile (home branch/ headquarters) but can have multiple
residences (branch offices).

The Enactment of English The Foreign Corporation Act, 1991

Once a corporation pays any tax to England it becomes resident of England there by submitting
itself to the jurisdiction of England.

The winding up of Foreign Company

The English court can wind up a company incorporate in another country as unregistered
company, if;

1. There is a sufficient connection between the company and England which may but need to
consist of assets in the country.

2. There is a reasonable possibility if the winding up order is made for the benefit of those who
have applied for it.

3. There are one or more persons interested in distribution of assets over whom the English
court can assist jurisdiction.

Re Jovarishesteo manufacturer (1944):

Held: English court has jurisdiction to wind up a foreign company when its directors used to
transact a business of a company from a hotel in London.

Position in Australia:

There are two major legal provisions in Australia.

1. CommonWealth Corporation Act, 2001.2. Australian foreign Corporation (applications of

laws) Act, 1989. In Australia, primary importance is given for place of incorporation for
jurisdiction.

Winding up:

1. A foreign corporation could be wound up whether it is registered or not.

2. An order can be passed in respect of wound up under law of incorporation.

3. If a winding up is ordered by Australian Court, all the creditors are ranked equally and no

special preferences for local creditors.

39
Re Sherlock (1991 AIR 156)

A foreign company wound up by an Australian Court which has been held that has no
jurisdiction to order a person residing outside Australia to appear before it for its examination.

Position In India:

The domicile of origin in case of a company or corporation is the company where it is registered,
ie., place of company of incorporation. Company’s registered in India will have Indian
domicile. According to the Indian Income Tax Act, a company registered outside India but
having its management and control in India is considered as an Indian company for the
purposes of corporate taxation. Domiciles of shareholders have no connection with the
domicile of corporations.

Technip S A V. C M S holding

● Questions as to status or corporation are to be decided according to law of domicile or

incorporation, subject to certain exceptions including domestic public policy.

● Corporation is a pure artificial body and can act only in accordance with its law of creation.

● Therefore, if it is a corporation, it can be so only by virtue of law by which it was incorporated

and the law of its incorporation can decide on creation and dissolution of corporate status unless
it is contrary to public policy.

INSOLVENCY

When an insolvent debtor has creditors in more than one jurisdiction ie., more than one country
the situation is referred to as a cross border insolvency. In other words, assets of debtors which
may be used to pay creditors may be situated in a foreign country. Therefore, one sovereign
country may tie up with another by means of bilateral agreements or the country's existing
international arrangements.

Eg: UNCITRAL Model law, to find a solution for cross border insolvency.

The ministry of corporate affairs through its insolvency law committee on cross border
insolvency (ILC) assists the implementation of IBC. After a report submitted by ILC India was
suggested to adopt UNCITRAL Model Law.

Aspects of Cross Border Insolvency:

● To protect the interest of domestic and foreign corporations.

● Value of assets of a debtor.

● Uniformity in insolvency laws and practices in different jurisdictions.

● Cooperation and coordination among court and other judicial authorities in various

40
jurisdiction and domestic laws applicable therein.

● Section 234 of Insolvency and Bankruptcy Code,2016, empowers the central government
to enter into bilateral agreements with forcing jurisdiction to resolve cross border jurisdiction.

● Section 235 empowers the adjudicating authorities to issue letter of request with courts of
the country with which bilateral agreements have entered into under Section 234 with an aim
to address the fate of assets with corporate sectors which are located outside India.

UNCITRAL Model Law (1997):

This stipulates the legislative guidance for states' cross border insolvency. The world bank as
acknowledged International aspects of International proceedings and has observed that laws of
International Insolvency should provide for rules with respect to;

● Choice of law,

● Jurisdiction,

● Recognition Of foreign Judgements.

International is another body to encourage adoption of Model Laws for an effective means of
reducing the difficulties in resolving CBI.

Four main principle of Model Law

1. Access: Object of model law is to provide direct access to domestic courts to the foreign
creditors and/or professionals thereby enabling them to participate/commerce the insolvency
proceedings against any concerned debtors.

2. Recognition: The Model law recognises foreign proceedings in the domestic country of any
country. It enables domestic countries to determine the relief to be granted in accordance with
foreign proceedings.

3. Cooperation: Model law aims at bringing out effective cooperation between insolvency
professionals and Courts of various jurisdiction. It aims to ensure coordination so as to
efficiently manage the conduct of concurrent proceedings in different jurisdictions.

4. Coordination:Aim of Model Lawis to asset countries to mold their insolvency laws in a

modern, harmonized and fair framework as to address the instances of CBI. However, Model
law respects the differences in domestic law and primarily focuses on improving cooperation
and coordination between countries instead of attempting to unify the domestic laws.

Jet Airways India v. SBI

Along with Domestic Insolvency proceedings of Jet Airways in India the Dutch

administration sought to initiate parallel proceedings in Dutch Courts similar to the U.S.A and
the U.K dispute in MCC, there was no pre existing legislation in India that laid down effective
procedures to overcome cross border dispute. Initially the country adopted territorial approach

41
completely ignoring Dutch proceedings declaring it to be nullity in law. However, in an appeal
in NCLAT, the tribunal permitted the first cross border Insolvency proceedings with main
Insolvency proceedings occurring in India and governed by domestic laws after securing the
cooperation between Dutch bankruptcy administrators. The cooperation between jurisdiction
was once again obtained through an agrees protocol found on the model of pure universalism.

UNIT V

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENTS

The “recognition” of a foreign judgment occurs when the court of one country accepts a judicial
decision made by the courts of another “foreign” country, and issues a judgment in substantially
identical terms without rehearing the substance of the original lawsuit. Enforcement, by
contrast, is the implementation of the judgment. Once a foreign judgment is recognized, the
party who was successful in the original case can then seek its enforcement in the recognizing
country.

Hague convention on Choice of Court Agreements, 2005 sets out the principal provisions of
jurisdiction in personam. It permits parties to agree in advance with regard to civil and
commercial matters and doesn't encourage other private matters which could be adjudicated in
particular countries.

The basis of recognition and enforcement of foreign judgement was based on the 'principle of
comity'. This principle meant that the courts of one country should help the courts of other
countries. For instance, if the judgements of English courts are not enforced in any country, the
judgements emanating from that country should be denied enforcement in England. Similarly,
if the other country enforces English judgements, then England must enforce the judgements
of that particular country. However, this theory was found to be inadequate. It was replaced by
the theory of 'obligation' propounded by Baron Parke. It means that when a foreign court of
competent jurisdiction had adjudicated a certain sum to be due from one person to another, the
liability to pay that sum becomes a legal obligation. This legal obligation becomes enforceable
in another country.

• Position in England:

- English courts have recognised foreign judgements since 17th century.

- It feels it to be a duty or obligation to maintain smooth relation with other sovereigns.

- it follows certain conditions:

a) Foreign court must have jurisdiction to decide that case

b) Judgement obtained by Fraud of party or court cannot be enforced. It will be started afresh.

42
In Magan Bhai v Maniben [1985 Guj 187], the court refused to recognise a Mexican decree of
divorce which was obtained by fraudulent misrepresentation of his domicile and residence by
the husband.

c) Judgement opposing public policy cannot be enforced.

Eg. Foreign judgements awarding perpetual maintenance on illegitimate child. (Re macartney
case, 1921)

d) Judgement contrary to natural justice, not enforced by English courts. It includes- when the
defence is not served with any notice, no adequate opportunity to represent was given, if the
judge was interested in the subject matter of the suit.

In the case of Crawley v. Issacs (1867) 16 L.T. 529 at 531,

Bramwell J., has aptly said: "If the proceedings be in accordance with the practice of the foreign
court, but that practice is not in accordance with justice, this court will not allow itself to be
concluded by them"

e) Foreign judgements as Res Judicata.

(Same case cannot be decided by 2 courts simultaneously, even if they have jurisdiction)

If a case has already been tried by courts of competent jurisdiction elsewhere other than
England, it will not be tried again in English courts.

f) Foreign judgements in rem. They are conclusive and will be enforced in England, provided
that proceedings are regarded as proceedings in Rem in that foreign country.

-In the case of Godadrd v. Gray (1870), it was firmly held that a foreign judgement given by
competent court is conclusive and final and cannot be re-examined in England on merits.
However, inspite of this rule, the rule of non-merger survives in England. That is, a foreign
judgement can be re-examined in the English courts on the original cause of action.

• Position in Australia-

- Australia follows English common laws.

-Hence, the provisions on Enforcement of foreign judgements is also similar but only if the
judgements are recognised by the Foreign Judgements Act of 1991 and the difference is with
regard to judgements obtained by Fraud.

- On contrary to English law, it relies on first decision.

• Position in Canada-

-It is similar to English law, except they have a test for recognising foreign judgements.

43
- The test is that the judgement would be recognised if there was real and substantial connection
between court that pronounced the judgement and subject matter of judgement or the
defendant.

- They don't enforce 4 types of judgements:

A) Obtained by Fraud

B) Against natural justice

C) Against public policy

D) Doing so would amount to enforcement of foreign penal or revenue or other public law.

• Position in India-

-A foreign judgment in India can be enforced in the following ways:

1) Decrees from Courts in "reciprocating territories" can be enforced directly by filing before
an Indian Court an Execution Decree.

2) Judgments from "non-reciprocating territories," such as the United States, can be enforced
only by filing a law suit in an Indian Court for a Judgment based on the foreign judgment.

The foreign judgment is considered evidentiary. The time limit to file such a law suit in India
is within three years of the foreign judgment.

Indian laws-

- S. 13& 14 of CPC deals with foreign judgement enforcement.

- S. 44A of CPC deals with execution of some foreign judgements.

- S. 41 of Indian Evidence Act, 1872 deals with effect of Judgement in rem.

S. 13 of CPC-

•A foreign judgement is conclusive as to any matter directly decided between same parties.

Exceptions:

A) Judgements not pronounced by courts of competent jurisdiction

B) Judgements not given on merits of the case

C) When found on the face or visibly that it's an incorrect view of international law or refusal
to recognise Indian law.

D) Cases against Natural justice

E) Obtained by Fraud

44
F) Sustains a claim founded on breach of Indian law.

S. 44A of CPC-

• U/s 44A, decrees of foreign courts which can be executed are the decrees of superior courts
of a reciprocating territory.

• Reciprocating territory means those notified by Central Govt. Most countries of

commonwealth have been so notified.

In case of R.I. Ltd. vs. I.G Ltd it was held by Hon'ble Supreme Court that "Where People's
Republic of Bangladesh was declared as the reciprocating territory for the purpose of section
44A, the decree passed by courts of district and subordinate judges in Bangladesh specified as
superior courts could be filed and executed under section 44A"

S. 41 of IEA, 1872- Judgements in Rem

• S. 41 is one of the group of sections providing when a judgement of court is relevant evidence
in other civil proceedings.

• It is a well established principle of PIL that a judgement propounded by a court of competent

jurisdiction in an action in rem, is accorded universal recognition.

In D. T. Kaymer v. P. Viswanathan (1916 P.C. 121)- a suit was filed against the defendant in
England and he duly entered appearance to answer the claim made against him. When certain
interrogatories were served on him, he refused to answer them and on this defence was struck
off and judgment was passed against English court. When this judgment was sought to be
enforced in India the defendant pleaded that the judgment was not on merits and hence was not
enforceable. The Privy Council held that the merits of the case were not investigated and the
judgment was not on merits. It may be noted, however, that the enquiry is only to see whether
the foreign judgment has been given on the merits of the case. It does not mean the Indian court
can reopen the whole case and examine the correctness or otherwise of the decisions arrived at
by the foreign court. Certainly, the court cannot act as a court of appeal.

ENFORCEMENT OF FOREIGN ARBITRAL AWARD AND PROCEDURE

Enforcement of foreign arbitral award:

Introduction:

The United Nations Convention on the Recognition and Enforcement of foreign arbitral
awards has been ratified by India on 13 July, 1960. New York Convention, Geneva protocol
that provides on arbitration clauses of 1923 and then Geneva convention on the execution of

45
foreign arbitral awards of 1927 it ceases of the effect between the member of the New York
convention legislature to implement the the New York Convention Act enacted in India in
1967. Prior to the enactment of the Arbitration and Conciliation Act, 1996, the law annulment
of domestic and enforcement of foreign awards were governed by the India Arbitration Act.

➢ What is enforcement?

Under New York convention, an award issued by any contracting state can be freely
enforced in other such contracting states including India, once a final award is passed by the
arbitral tribunal the party in whose favour they can apply to the Indian Courts of law to pass
the awards as a decree of the courts of law having the same enforce-ability as that only other
decree passed by such court. Under Section 49 of the Arbitration and Conciliation Act, 1996.
Execution proceedings for the enforcement of the decree/award are initiated under Section 36
and 74 and Order XXI of the Civil Procedure Code 1908.

➢ What is Foreign Award?

As defined under Section 44, part II of the Act and elaborated under Article1(3) of the
Convention, the state would only recognize or enforce awards made in foreign states on the
basis of reciprocity that it will apply the provision of the convention on where the disputes
between the parties arises out of legal relationships which are considered commercial by the
state making the declaration or in pursuance of an arbitration agreement for which the I st
schedule of the convention applies.

➢ Requirements for enforcement of foreign awards: (Section 47 of the Arbitration and

Conciliation Act, 1996)

⚫ Original award or a duly authenticated copy in the manner required by the country where
it is made.

⚫ Original agreement or duly certified copy.

⚫ Evidence necessary to prove the award is a foreign award.

R.M. Investment & Trading Ltd v. Boeing co and Anr 1994 AIR 1136

The court held that relationships between petitioner and respondent should be in
commercial nature.

Procedure for Enforcement of foreign arbitral award:

Under the Arbitration and Conciliation Act, 1996, there are two avenues available for
the enforcement of foreign awards in India i.e New York Convention (Section 44 to 52) and
Geneva Convention(Section 53 to 60).

Before entering into conventions, the natural rules of procedure governing enforcement
of foreign arbitral award falls into one of the following categories.

⚫ Specific provisions governing rules of procedure.

46
⚫ One rule of procedure is used for all foreign awards

⚫ Employment of same rules of procedure as pertains to enforcement of foreign judgement.

⚫ Enforcement of same rules of procedure as pertains to enforcement of domestic awards.

The ultimate goal of parties concerned in International Commercial Arbitration is that

when losing party fails to carry out the award, the winning party will take steps to enforce it
without delay. The losing party my hope that it will be challenge the award with hope that it
will be set aside. A state may not be willing too give credit to awards rendered by foreign
arbitral tribunal or those based on some foreign legal procedure. The ultimate sanction for non-
performance of an award is execution by court proceedings varies from country to country.

The procedure for enforcement of foreign arbitral award in India is same as for the
procedure prescribed by the New York Convention. The country must be a signatory of the
New York Convention and award shall be made in the territory of another contracting state
which is reciprocating territory - Section 44 of the Arbitration and Conciliation Act, 1996.

As per now once application is filed, the other party has to opportunity to file an
objection against enforcement on grounds recognized under Section 48 of the Arbitration and
Conciliation Act, 1996:

a) The parties to agreement referred in section 44, under some incapacity or agreement not
valid under law to which parties have subjected or failing any indication under the law of
country where award was made.

b) Party against whom award is invoked was not given proper notice of appointment of
arbitrator or proceedings.

c) Award deals with a difference not contemplated by or falling within the terms of
submission to arbitration or it contains decisions on matters beyond the scope.

d) Composition of arbitral authority or arbitral procedure was not in accordance with

agreement with of parties.

e) Award has not yet become binding on the parties or has been set aside or suspended by a
competent authority of a country.

f) Subject matter of difference is not capable of settlement by arbitration under law of India.

g) Enforcement of award would be contrary to public policy of India.

Centrotrade Minerals & Metals v. Hindustan Copper Ltd (2006) II SCC 245

An award is said to be in conflict with public policy of India if affected by fraud or

corruption or contravenes fundamental policy of India law or conflicts with nations of morality
or justice.

47
 Section 49 provides that where the court is satisfied that the foreign award is
enforcement under this chapter, the award shall be deemed to be a decree of that court. The
procedure established under the New York Convention is more or less same in Geneva
Convention. Section 57 and 58 of the Arbitration and Conciliation Act, 1996 (Geneva
Convention) discusses about the procedure for enforcement of foreign arbitral award which is
already discussed under section 44 and 48 of the New York Convention.

➢ Appeal:

The procedure for appeal has been discussed under the section 50 and section 59 of the
Arbitration and Conciliation Act, 1996

ONGC Ltd v. Saw pipe (2003) 5 SCC 705

The supreme court has laid down that there is no need to take separate proceedings, one
for deciding enforceability of the award to make it a rule or decree of the court and other to
take up execution thereafter.

Venture Global Engg v. Satyam Computer Services Ltd (2008) 4 SCC 190

Indian law was held to be not applicable for enforcement of foreign award.

Renu Sagar Power co v. General Electrical Corp 1994 Supp (1) SCC 644

Several requirement for a foreign arbitral award to be enforceable under the Arbitration
and Conciliation Act, 1996 are commercial transaction, written agreement and it should be
valid and not ambiguous.

Bhatia International v. Bulk Trading SA & Anr (2002) 4 SCC 105

Non Conventional award will be enforceable in India under the Common law on
grounds of Justice, equity and good conscience.

STAY OF PROCEEDINGS

⚫ Due to multiplicity of suits, sometimes results in injustice - with view to avoid injustice
and inconvenience, the domestic law of country lays down rules for stay of actions pending
before it for a remaining party, from proceeding further with his action that he had filled
in a foreign country.

⚫ Lis Alibi Pendens (Suit pending elsewhere) - the court has inherent jurisdiction to stay an
action in England or to restrain by injunction of the institution or continuance of
proceedings in a foreign country to prevent simultaneous legal proceedings in different
countries regarding the same cause of action. But this jurisdiction to stay action is
discretionary and will be exercised only with extreme caution.

⚫ Questions arises in following situations:

48
1. Plaintiff in England is also plaintiff in foreign proceedings.

2. Plaintiff in English proceedings is the defendant in the foreign jurisdictions and vice versa.

⚫ Stay of Action under Indian law:

Section 10 of the Cpc deals with Stay of Suits - is applicable only to domestic cases, not in case
of double proceedings with one case in India and other in a foreign country. In case of
simultaneous proceedings in foreign court, the pendency of suit in a foreign court does not
preclude the court in India from trying a suit founded on same cause of action. However, the
Indian court has granted stay when foreign proceedings is pending under inherent jurisdiction
by virtue of section 151 of Civil Procedure Code, 1908.

⚫ Stay of Proceedings in Arbitration Agreement:

Under Indian law, Section 34 and 36 of Arbitration and Conciliation (Amendment)

Act,2015 deals with enforcement of arbitral awards with setting aside an Award by court.

PROOF OF FOREIGN LAW

Foreign law - law of foreign country. It is the law of jurisdiction having a different
system of law from that considering the issue the courts do not judicially take notice of foreign
laws. Jus reception onus of proof lies on party who relies on foreign law.

⚫ Mode of proof:

When foreign law is applicable by virtue of conflict of laws rule of forum, there are
several methods by which that laws can be made known to court,

1) By judicial notice

2) By pleading and proof

3) By presumption

These methods are governed by lex fori the consequences of treating foreign law as fact,

➢ Foreign law must be pleaded like fact

➢ Foreign law must be proved like fact

➢ Foreign law questions go to jury in appropriate cases.

➢ If not considered on appeal foreign law cannot be considered on appeal.

⚫ Competent witness:

49
 Witness should have practical experience in that particular legal system which caused
him to familiarize himself with law to which he testifies. Personal knowledge of foreign law
of judge is not sufficient.

50