KUMAR ADITYA MEHTA <2083117@kls.ac.

in>

Module 1- Private International Law

Anirudha Choudhury <anirudhachoudhury@kls.ac.in> Sat, Mar 30, 2024 at 8:46 AM
To: ballbofficial@kls.ac.in

Introduction
When there are issues between the local laws of various nations pertaining to private
transactions, private international law will be applied. This concept is also called the
‘conflict of laws’. This indicates a dispute or transaction involving one of the following:
the relevant jurisdiction, the appropriate court, the appropriate venue, the appropriate
renvoi (transfer of proceedings), the appropriate law, or the recognition or execution of a
foreign decision.

Private international law mostly derives from national laws. Each country has its own
laws, and the application of private international law differs from one jurisdiction to the
next. The phrase conflict of laws is more often used in the US, Canada, and the UK. A
wide range of subjects is covered by private international law, including (international)
contracts, torts (lex loci delicti), family issues, the recognition of judgements, child
adoption and kidnapping, real property (lex rei sitae), and intellectual property. The
International Institute for the Unification of Private Law (UNIDROIT) and the Hague
Conference on Private International Law (HCCH) have brought in treaties, model laws,
and other tools to control the domain of transnational conflicts in addition to the
regulations established by national authorities. Both the number of members and the
variety of state parties to the Hague Conventions have seen tremendous expansion.

At the national, regional, and international levels, private international law-making has
exploded as a result of globalisation. It has significantly boosted the actions of judges
and lawmakers alike in the field of private international law.

Concept of Private International Law

Conflict of laws
The collection of regulations or laws that jurisdiction applies to a case, transaction, or
other occurrences that have ties to more than one jurisdiction is known as ‘private
international law’. According to the 10th edition of Black’s Law Dictionary, it is also called
the ‘conflict of laws’. This body of law addresses three major issues:

1. Choice of law, which addresses the issue of which substantive laws will be applied in
such a case;
2. Foreign judgments, which deal with the rules by which a court in one jurisdiction
requires adherence to a ruling of a court in another; and
3. Jurisdiction, which addresses when it is appropriate for a court to hear such a case.
These problems can occur in any private law setting, but contract law and tort law are
where they frequently occur.

Private International Law

The principles of private law and international law have been combined to form private
international law. By engaging in any type of legal relationship, persons or states acting
in the role of individuals freely invoke private law. The law that develops between several
national (or municipal) legal systems is known as international law.

As Cheshire expressed, “Private international law, then, is that part of the law which
comes into play when the issue before the courts affects some facts, events or
transaction that is so closely connected with a foreign system of law as to necessitate
recourse to that system.”

The existence of several distinct municipal legal systems across the world is what gave
rise to private international law. National legal systems reflect variations in sociocultural
values, history, and tradition. The common law system in the United States is
distinguished by a significant focus on court decisions as a separate source of law.
Canada considers this common law system to be bi-jural since it integrates with Quebec’s
civil law system.

Foreign law or facts, factual circumstances, substance, components of a legal cause of

action, or fact patterns, which in one way or another are connected to a foreign legal
system or a foreign nation, may be considered a foreign element. Foreign law is when a
court decides a matter using a system of law that is distinct from the system of law that
the court would use in a strictly domestic case.

There is an odd juxtaposition in private international law. Despite the word ‘international’
being a part of its title, only the foreign component qualifies as international. Even
though it includes a global component, private international law is mostly a subset of
municipal law. Every nation has its own private international law for this reason. Private
international law, which is a subset of municipal law, deals with nearly every area of law
and has a very broad scope. It does not, however, focus on any one area of law.

History of Private International Law

Development in the 1100s

A fundamental tenet of conflict of laws, that ‘foreign law, in suitable occasions, should be
applied to foreign issues’, was first acknowledged by Western legal systems in the twelfth
century. Prior to then, personal law predominated, which meant that each person’s
relevant rules were determined by the community to which they belonged. The goal of
this corpus of law was initially to simply decide which jurisdiction’s law would be the most
equitable to apply. But, as time went on, the law began to prefer more precise
principles.
Development in the 1300s
Bartolus de Saxoferrato, a law professor, meticulously compiled these laws around the
middle of the fourteenth century, and his work was often quoted for the next several
centuries.

Development in the 1600s

The jurisprudence of conflict of laws was further developed in the seventeenth century by
several Dutch legal academics, including Christian Rodenburg, Paulus Voet, Johannes
Voet, and Ulrik Huber. They made two major conceptual advances:

Firstly, they argued that because countries are completely sovereign inside their
boundaries, they cannot be forced to apply international law in domestic courts.
Secondly, for international conflicts of law to function rationally, states must act with
courtesy while upholding the laws of others since doing so is in their shared best
interest.

Development in the 1700s

Important questions in the area of conflict of laws have existed in the US at least since
the Constitution’s drafting in 1779. For instance, there was uncertainty over the body of
law that would be used by the newly established federal courts in instances involving
parties from various states (a type of case specifically subject to the jurisdiction of
federal courts as per Article III of the US Constitution). Over 100 cases dealt with similar
difficulties in the first two decades after the Constitution’s passage, while the phrase
“conflict of laws” was not then in use.

Development in the 1800s

The eighteenth century witnessed the beginnings of significant international cooperation
on the subject of conflict of laws in addition to domestic advancements in this area. Five
South American nations sent representatives to the first international conference on the
subject, which was held in Lima in 1887 and 1888 but failed to result in an enforceable
agreement. The First South American Congress of private international law, which took
place in Montevideo from August 1888 to February 1889, resulted in the first significant
multilateral accords on the subject of conflict of laws. Eight treaties were drafted by the
seven South American countries involved at the Montevideo conference, which essentially
embraced Friedrich Carl von Savigny’s theories and based their determination of
applicable law on four different forms of factual connections (domicile, location of object,
location of transaction, location of court).

Development in the 1900s

Soon after, Tobias Asser convened an international conference in the Hague, Netherlands,
in 1893. Thereafter, conferences were held in 1894, 1900, and 1904. These conferences,
like their counterparts in Montevideo, resulted in several multilateral agreements on
numerous themes related to conflict of laws. Subsequently, the frequency of these
gatherings decreased, with the following conventions taking place in 1925 and 1928. The
sixteen participating governments formed a permanent organisation for international
cooperation on conflict-of-laws matters during the seventh conference in The Hague,
which took place in 1951. The Hague Conference on Private International Law (HCCH) is
the name of the organisation nowadays. By the end of 2020, HCCH had 86 member
states.

In the latter part of the 20th century, as interest in the subject grew, the European Union
started to take steps to unify conflict of law jurisprudence across its member states. The
first of them was the 1968 Brussels Convention, which addressed the issue of jurisdiction
for disputes involving multiple countries. The Rome Convention, which addressed choice-
of-law guidelines for contract disputes among EU member states, came after this in
1980.

Development in the 2000s

The EU passed the Rome II Regulation to handle the choice of law in tort cases and
the Rome III Regulation to address the choice of law in divorce issues in 2009 and 2010,
respectively.

Sources of Private International Law

The domestic laws of the relevant nations regulate a large portion of private international
law. This means that Indian law may be used to determine, for instance, whether a
particular foreign ruling would be upheld in an Indian court. Treaties and conventions,
model laws, legal handbooks, and other instruments may also be utilised in the current
endeavour to develop a more unified system of private international law. There is
currently no well-defined body of private international law, although particular topics like
contracts or family law may have their own set of controlling laws. private international
law is often subject-specific and varies from country to country and jurisdiction to
jurisdiction.

International bodies and treaties

The main international organisations engaged in private international law are listed
below. Each of the following has a website where they provide updates on their
conventions, preserve older papers, and provide information about their current projects:

Conference at the Hague on Private International Law

(HCCH)
The Hague Conference on Private International Law (HCCH) is the international
organisation for cross-border cooperation and commercial concerns, and it has its roots
in a conference called by the Dutch government in 1893. It creates conventions (rather
than principles, recommendations, and model laws) in several areas of private law,
including subjects like intercountry adoption and child abduction as well as more modern
problems like jurisdictional and choice-of-law rules. The Hague Conference’s Statute on
Private International Law (entered into force on 15 July 1955) outlines the organisation and
goals of the conference.

The whole text, status, bibliographic data, and explanatory reports on the Hague
Conference’s work are all available online, including:

Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille
Convention) concluded at The Hague on 5 October 1961 and entered into force on 24
January 1965;
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial
Matters (Hague Service Convention) concluded at The Hague on 15 November 1965
and entered into force on 10 February 1969;
Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Taking of
Evidence Convention) concluded at The Hague on 18 March 1970 and entered into
force on 7 October 1972;
Convention on the Civil Aspects of International Child Abduction (Child Abduction Convention),
concluded at The Hague on 25 October 1980 and entered into force on 1 December
1983; and
Convention on Protection of Children and Co-operation in Respect of Intercountry
Adoption (Hague Adoption Convention) concluded at The Hague on 29 May 1993 and
entered into force on 1 May 1995.

The News and Events section on the official website provides the latest information on the
status of conventions. The archives on the website go back to 1997. The lists of Central
Authorities designated under various conventions are also maintained by the Hague
Conference.

United Nations Commission for International Trade Law

(UNCITRAL)
The United Nations General Assembly founded the United Nations Commission for
International Trade Law (UNCITRAL) in 1966. It is the driving force behind some of the
most important work being done to gradually harmonise private international law. The
UNCITRAL website includes original materials and details on the status of recognised
instruments including

United Nations Convention on Contracts for the International Sale of Goods (CISG)
Convention on the Limitation Period in the International Sale of Goods, and
New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (also
known as the “New York” Convention)

UNCITRAL contributes to the harmonisation of international trade law by developing

model laws and legal guides that serve as a resource for domestic legislative drafters, in
addition to conventions and other comparable instruments that are adopted at the
international level by states. The UNCITRAL Model Law on the Procurement of Goods,
Construction, and Services with Guide to Enactment (1994) acts as the most important
illustration. Other UNCITRAL initiatives are targeted at private business parties, including
the well-known UNCITRAL Arbitration Rules and the UNCITRAL Notes on Organising Arbitral
Proceedings.
Six specialist working groups support UNCITRAL’s work. Each Working Group section
contains drafts and preparatory documents that reflect the progress towards a finished
document.

Working Group I- It has finished working on the following:

UNCITRAL Model Law on Public Procurement (2011)
Draft Guide to the Enactment of the UNCITRAL Model Law on Public Procurement (2012).
Working Group II- It is presently concerned with the arena of international arbitration
and conciliation.
Working Group III- It is presently concerned with online dispute resolution.
Working Group IV- It is presently concerned with the arena of electronic commerce.
Working Group V- It is presently concerned with the arena of insolvency law.
Working Group VI It is presently concerned with the arena of security interests.

International Institute for the Unification of Private Law

(UNIDROIT)
Since UNIDROIT’s founding in the League of Nations, the International Institute for the
Unification of Private Law (UNIDROIT) has worked to modernise, harmonise, and
coordinate private law, particularly commercial law, as between states and groups of
states and to formulate uniform legal instruments, principles, and rules to achieve those
objectives. The working languages of UNIDROIT, English and French, are both
represented on its website, which provides complete text and status details for
UNIDROIT Conventions such as the:

• Ottawa Convention on International Financial Leasing, 1988;

• Ottawa Convention on International Factoring, 1988;

• Rome UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, 1995;

• Cape Town Convention on International Interests in Mobile Equipment, 2001; and

• Cape Town Protocol to the Convention on International Interests in Mobile Equipment on Matters
Specific to Aircraft Equipment, 2001.

EU, CIDIPs, OHADA

For regional harmonisation, international bodies such as European Union (EU), Inter-
American Specialised Conferences on Private International Law (CIDIPs), and
Organisation pour l’harmonisation en Afrique du Droit des Affaires (OHADA) function to
implement and uphold private international law.

European Union (EU)

Through the creation of conventions, directives, and regulations, the EU harmonises the
private international law of its member countries. The following conventions play a
significant role in the functioning of the EU for ensuring regional harmony and efficient
functioning of private international law:

The Brussels Convention and the Lugano Convention– are intended to define the worldwide
jurisdiction of their courts, promote recognition and create an expedited mechanism
for ensuring the execution of judgments, genuine documents, and judicial settlements.
The Lugano Convention expanded the laws governing jurisdiction and the execution of
judgements beyond the borders of the European Union.
The Rome Convention– It states that a contract is regulated by the law that the parties
have agreed upon and that is evident from the contract’s terms or the specific facts of
the case.
Study Group on a European Civil Code– The Study Group on a European Civil Code is a
network of academics from throughout the EU engaged in comparative legal analysis
in the area of private law to produce a defined collection of European legal principles
covering the fundamentals of the law of contracts and the law of property.
Principles of European Contract Law from the Commission on European Contract Law– The
Principles of Contract Law were created by the Lando Commission, also known as the
Commission, and are intended to be used as general rules of contract law in the
European Communities when the parties have agreed to incorporate them into their
contract or to have their contract be governed by them.

Inter-American Specialised Conferences on Private International Law

(CIDIPs)
Inter-American Specialised Conferences on Private International Law, also known as CIDIPs, are
organised by the Organisation of American States and are instrumental in coordinating
and codifying private international law in the Western Hemisphere.

Organisation pour l’Harmonisation en Afrique du Droit des Affaires

(OHADA)
In October 1992, OHADA began the legal unification process in Africa with the assistance
of the heads of state of the sixteen OHADA nations. The Treaty on the Harmonisation of
Business Law in Africa, the first OHADA treaty, was signed in Mauritius in October 1993.
Information about the ongoing OHADA projects is shared on its website.

International Tribunals
International criminal tribunals are either permanent or temporary (ad hoc) courts
established to hear cases involving violations of international criminal or civil law.
Generally, the national courts are approached to settle the majority of private
international law cases but this isn’t an ideal and efficient option for either party.
Furthermore, International courts typically handle matters only between nations and not
private parties. The United Nations, therefore, assumed the charge of establishing
international tribunals for the purpose of prosecuting offenders under private
international law. There are a few regional courts and arbitration bodies that occasionally
handle claims from private parties. These courts frequently use a mix of the relevant
nation’s domestic law and some kind of international law.
The list below includes a handful of these courts established in different regions:

Africa
In Africa, OHADA is applicable and functioning which has established the tribunal courts
for corporate law issues in its member nations, and has also published a number of
model acts aiming to incorporate features of domestic laws to adjudicate matters of
private international law.

European Union
In the European Union (EU), the European Court of Justice (ECJ) is the highest court for
disputes involving the application of EU Community law, as opposed to the national law
of individual member states. Furthermore, the European Union enters into international
agreements with other subjects of international law, such as international organisations
and nations, as a subject of public international law. With regard to the judgement,
interpretation, and application of international treaties to which the EU is a party, the
European Court of Justice is uniquely qualified. Additionally, the Court may interpret
foreign agreements reached by the EU as acts of the institutions, particularly during the
preliminary referral phase.

Council of Europe
In the Council of Europe, the European Human Rights Court (EHRC) has authority. If a
person feels their rights have been violated in accordance with the European Convention
on Human Rights, they may file a petition. EHRC acts as the primary judicial forum
where people can file complaints about violations of their rights under the Convention.
Cases occasionally include family law.

Scope of Private International Law

Although it has gained popularity in the UK, the United States and Canada are where the
phrase ‘conflict of laws’ is most frequently used. According to some scholars from nations
that apply conflict of laws, the term private international law is unclear since this body of
law only includes domestic laws when a country is bound by treaties. It does not include
laws that apply internationally (and even then, only to the extent that domestic law
renders the treaty obligations enforceable). The distinction between private and public
law in civil law regimes is where the phrase ‘private international law’ originates. The
phrase ‘private international law’ under this type of legal system does not indicate an
established body of international law. Rather, it refers to those parts of domestic private
law that deal with international matters.

It’s important to note that although conflicts of laws often deal with international
problems, local law is the relevant law. This is because, unlike public international law
(more commonly referred to as simply international law), conflict of laws regulates how
individual countries internally handle the affairs of people who have connections to
multiple jurisdictions rather than how countries relate to one another. Undoubtedly, just
like in other situations, international agreements to which a nation is a party may have
an impact on domestic law.

Moreover, issues involving conflict of laws frequently arise in wholly domestic contexts,
relating to the laws of different states (or provinces, etc.) rather than laws of foreign
countries, in federal republics where significant lawmaking occurs at the subnational
level, particularly in the United States.

Need for Private International Law

When it has selected the proper system of law, private international law has served its
purpose. Its regulations do not directly resolve the conflict, and a French writer once
compared this branch of law to the information desk at a train station where a traveller
may find out what platform a train departs from. By definition, private international law
only identifies the applicable law to be used in a case’s resolution. The following are the
duties of private international law:

1. What situations will provide the court jurisdiction over cases with foreign elements?
(selection of a jurisdiction)
2. Which law, the local municipal law or foreign law, shall the court apply in making such
decisions?
3. When will it order the execution of a foreign decree or under what conditions will it
recognise a foreign judgement?
4. Specifically for India, it also involves Indian private international law codification.

In India, there are very few statutory provisions relating to private international law. In
this nation, there is no codification of private international law. Instead, it is dispersed
among many statutes, including the Civil Procedure Code, the Indian Contract Act, the Indian
Succession Act, the Indian Divorce Act, the Special Marriage Act, etc. A few norms have also
developed as a result of court rulings.

Functions of Private International Law

Private international laws perform the following functions:

1. Private international law has traditionally been thought of as a set of impartial

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

Jurisdiction
The assessment of when the legislature of a given jurisdiction may legislate or the court
of a given jurisdiction may lawfully adjudicate an issue that has extra-jurisdictional
aspects is one of the fundamental questions addressed under the conflict of laws. This
issue is ultimately decided by local law, which may or may not take into account
pertinent international treaties or other supranational legal notions, as is the case with
other elements of conflict of laws. Nevertheless, in contrast to the other two subtopics of
conflicts of law, the theory of jurisdiction has given rise to dependable global standards.
This is because jurisdiction deals with the most complex issue of whether or not it is ever
legitimate for a nation to employ coercive force, as opposed to just how it should.

In general, international law recognises five grounds of jurisdiction. An individual or an

incident may be subject to concurrent jurisdiction in more than one location, they are not
mutually exclusive. The following are those five grounds:

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

Laws have also been adopted by nations to resolve jurisdictional conflicts between sub-
national organisations. For instance, in the United States, the Due Process Clause of the
Fourteenth Amendment governs the minimal contacts rule, which limits the scope to
which one state may exercise jurisdiction over residents of other states or events that
occurred in other states.

Choice of law
Courts go through a two-stage process when presented with a choice of law issue:

The law of the forum (lex fori) shall be used by the court in all procedural matters,
including regulations regarding the choice of law;
The laws with the strongest connections, such as the law of nationality (lex patriae) or
the law of habitual residence, are applied after taking into account the circumstances
that connect or relate the legal concerns to the laws of possibly relevant nations (lex
domicilii).

The civil law counterpart of the common law lex domicilii test is the notion of habitual
residency. The plaintiffs’ capacity and legal standing will be established by the court. The
court will decide which state’s legislation (known as the lex situs) will be used to resolve
all title-related disputes. When the issue is substantive, the ruling law will frequently be
the law of the location where the transaction occurs or of the event that gave birth to the
dispute (lex loci actus), but the appropriate law has become a more popular option.
The doctrine of comity
According to the legal concept known as the doctrine of comity, unless doing so would be
against its public policy, a jurisdiction must recognise and implement court judgments
and decisions made in other jurisdictions. The doctrine of comity is primarily utilised in
interpreting international treaties, the theoretical frameworks which are developed within
the nation, and the insights which can be gained from the analysis of Treaties and Model
Law cases have wider implications for the use of comity in other contexts.

Comity, a notion with roots in the Middle Ages, is still relevant today since it aids in
achieving one of the law’s main goals: the swift, fair, and complete settlement of
disputes. In private international law, comity has long been acknowledged as a basic
norm. Courts may nevertheless employ the theory of comity in interpreting international
treaties and using their discretion under them, even when private international law
standards are enacted in such instruments. With governments’ interdependence
constantly increasing in the modern world, this strategy looks even more rational.

Unification of Private International Law

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

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

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

A crucial step in that direction is the Hague Convention of 1955, which revised the 1929
Warsaw Conventions. This Convention establishes consistent regulations for the air
transportation of people and cargo.

The laws governing the transportation of people and commodities by water were unified
in the Brussels Convention of 1922-23.

The laws governing the transportation of people and commodities by water were unified
in the Brussels Convention of 1922-23. The Geneva Convention on International Road Carriage
of Goods of 1956 followed. The Convention on the Uniform Law of Bills of Exchange was the
outcome of the Geneva Conference in 1930.

2. It is impossible to unify all privacy laws due to fundamental ideological differences

among the nations of the globe. Therefore, unifying all privacy laws is another way to
prevent situations where courts in various nations may reach conflicting conclusions
on the same issue.
A permanent Hague Conference Bureau was established in 1951. This was accomplished
in accordance with a Charter that many nations have ratified. Many further Charters,
Conventions, and International Organisations are attempting to harmonise private
international law. International conventions, however, may only be a component of
municipal legislation if they have been acknowledged or included in it.

Theories of Private International Law

The five main schools of thought in private international law. These theories include the
Statute Theory, International Theory, Territorial Theory, Local Law Theory and Theory of
Justice. Each of these theories is further explored, along with how it may be used in real
life:

Statute theory
It can be argued that the statute theory is the most traditional theory of private
international law. Bartolus invented it in Italy in the 13th century. He is frequently cited
as this theory’s founder. In order to reconcile problems between the city states’ laws and
the then-existing Italian law, he created the statute theory. Depending on the legal
subject, the statutes were separated into two sections called Statuta
Personalia and Statuta Realia.

Statutes pertaining to individuals (Statuta Personalia): These laws dealt with

people and were applicable to those who resided in a certain region. Even when these
domiciled individuals travelled to other territories, the laws of that particular area
nevertheless applied to them.
Statutes pertaining to things (Statuta Realia): These statutes dealt with objects
and were primarily territorial in scope.
Mixed Statutes (Statuta Mixta): Bartolus added a third category to the statutes,
nevertheless. Rather than people or objects, this article dealt with acts. This sub-head
would cover things like the creation of contracts or agreements, for instance. These
were applicable to all actions taken in the area that passed the relevant legislation,
even when litigation over those actions took place in another jurisdiction.

Use of Bartolus’s statute theory

While the aforementioned statutory idea appears to be clear-cut and uncomplicated in
principle. However, when the theory is used in practice, it reveals several real-world
issues that do not exist in theory. It is difficult to determine if anything falls under
personalia or realia in such a situation. It fits well within the laws dealing with individuals
because it includes people and their private affairs. However, it also makes land
transferable, making it eligible to be covered by laws pertaining to objects. To solve this
issue, Bartolus distinguished between the two based on the linguistic structure of the
legislation. If a person is mentioned in the statute’s wording first, it is deemed to come
under personalia. If an object is mentioned first, it is said to be under realia.

Criticism of statute theory

The three maxims Ulric Huber, a Dutch jurist, established for the statute theory during
the 17th century as the law developed. He believed that these maxims might be used to
create an all-encompassing framework for settling legal disputes.

They were as follows:

The rules of a State are inviolable, but only inside the boundaries of its sovereign
territory.
Everyone who enters a sovereign’s realm, whether temporarily or permanently, is
considered one of his subjects and is subject to his laws as a result.
Due to comity, however, each sovereign acknowledges that a law that has already
been implemented in the nation of its origin should continue to be in effect elsewhere,
provided that doing so would not harm the subjects of the Sovereign by whom its
recognition is sought.

While the first two maxims i.e. any rule of the nation has absolute authority and that
people must abide by it, can be accepted, several academics and legal experts from
throughout the world have criticised the last axiom. The Statute Theory lacks a scientific
foundation and provides no firm footing upon which a sound and logical system can be
built, according to Cheshire & North’s private international law. One can’t expect every
country’s legislation to fit him or his means, according to the third maxim. While
homosexual marriage is legal in certain nations, it is not in others. The third maxim thus
becomes nonsensical and useless.

International theory
Another term for this hypothesis is the Von Savigny theory. The older statute argument
was categorically rejected by the German jurist in his work on Conflict of Laws, which
was published in 1849. The statute theory, in his opinion, is unfinished and unclear.

Savigny argued for a more scientific approach, stating that the challenge is to identify
the local law that, in its natural nature, each legal connection belongs to rather than
classifying laws according to their objects. Each legal relationship has a natural seat in a
specific local law, and when that law diverges from Forum law, it is that local law that
must be followed. In this situation, the seat refers to the location of the object or, in the
case of a person, where he is domiciled. This theory’s most notable strength is its
attempt to resolve each disagreement in light of its unique circumstances and the most
pertinent body of law. It encourages adherence to the rules of the legal system of which
the parties or items in question are logically a part.

Application of international theory

Savigny has outlined the four main factors that influence the natural seat. Which are:

The place of residence of a party to a legal relationship.

The location of an item that is the subject of a legal relationship.
The location where a legal act is performed.
The location of a Tribunal.

It is only normal for there to be some kind of contractual arrangement between the
parties engaged in every legal connection. Therefore, a legal remedy must be sought if
any party to such an agreement should suffer legal injustice.

When determining the domicile of a person who is subject to a legal relationship, one
should place more emphasis on the residence of the parties to the contract, the location
of the contract’s performance, the location of the breach, and the location of the court
i.e. the place where the dispute will be resolved. The lex situs controls the contract if real
property is the issue of the dispute, even if it differs from the domicile of either party or
both parties.

Criticism of the international theory

The fundamental argument against this idea was that Savigny presupposed that the laws
of all nations were uniform. This hypothesis is less trustworthy since there isn’t as much
homogeneity in the real world. This is the case because it will be challenging to identify
the natural seat of the legal relationship in the absence of such consistency. For instance,
a breach of a marriage contract may fall under contract law in certain nations while being
regarded as a tort in others. It might be difficult to determine the natural seat of the
continuing legal relationship in such circumstances.

This approach also ignores the common law system and the influences of ethnicity,
religion, and culture on the laws of other nations. India, for instance, is a nation rich in
ethnic and cultural characteristics. Therefore, a country with such a diverse population
has laws that vary greatly from region to region and even from village to village.

Territorial theory
The territorial theory, also called the theory of acquired rights, was established when
Dutch jurist Huber first proposed it in the 17th century since it is based on the idea of
territoriality. Common attorneys like Dicey and Beale in England and the United States,
respectively, developed it later.

In the simplest terms possible, the argument is that the courts of sovereign nations do
not implement foreign law but only acknowledge the effects of foreign law’s operation.
This implies that national courts only implement foreign law to the degree that the
sovereign has given them permission to do so.

Application of territorial theory

In essence, it implies that a judge is not permitted to arbitrarily apply any foreign law or
ruling to any matter he is adjudicating. In all circumstances that call for his judgement,
he must fundamentally apply the law of his country.

The Acquired Rights or Territorial Theory seeks to balance the necessity for private
international law with the territoriality of the law. Sir William Scott used it in the case
of Dalrymple v. Dalrymple (1902). The Hon. Sir William stated that he was to take into
account Miss Gordon’s overseas rights, regardless of whence they originated. The idea, in
particular, does not permit any court to consider any law other than the fundamental law
of the nation.

The argument makes sense when seen from the perspective that no stranger is
permitted to enter your home and rule or direct you. An analogy that illustrates this point
is when a visitor to Mr X’s home instructs Mr X on how to conduct himself. The principle
prevents foreign laws from dictating how Mr X should behave or conduct himself within
his own country. It shows respect for the nations where laws are being sought to be
implemented, and since it is the judge’s own nation, it is legitimate for him or her to
exercise that privilege there.

Criticism of the territorial theory

Dr Cheshire has harshly criticised this specific notion, calling it “unnecessary,” “untrue,”
and “unhelpful.” Currently, it also doesn’t receive much support that’s noteworthy. Even
though different countries’ laws tend to be distinct from one another, it becomes very
difficult to compare them. Many nations, like Nigeria, where the British formerly held
sway for a very long time, still adhere to English law, making their legal system
compatible with the British. However, this is not feasible in every other country. Foreign
rulings and their application constitute a component of the legal system and cannot be
disregarded.

The territorial theory effectively contradicts the goal of private international law as a field
of study because if it were feasible to resolve every dispute using solely territorial law,
then this discussion would not be necessary. However, it is generally known that
territorial law does not always suffice to resolve legal disputes.

Local law theory

The territorial idea has been expanded into the Local Law theory, which was put out
by Walter Wheeler Cook. Cook emphasised that governing laws should not be developed
from the logical arguments of philosophers or lawyers, but rather by looking at prior
court rulings. In essence, he emphasised the value of precedents. Cook asserts that each
court must effectively create its own set of laws based on earlier rulings. Contrary to
territorial theory, it considers the laws of the relevant foreign nation out of social need
and practical convenience.

Application of local law theory

The local law states that there is absolutely no reason for any court to reverse a decision
made based on local law just because there is a difference with foreign law. Even though
the etymologies of all the overlapping rules are not the same, they are all somewhat
cohesive in their interpretation and application, and this cannot be denied. Because a
nation’s law serves as its ultimate compass, relying on precedents might be considered a
legitimate basis for enforcing the law.

Criticism of local law theory

This local law theory, in the opinion of Cheshire, North, and Fawcett, does not provide a
foundation for the system of private international law. Because it is a technical dispute
that neither clarifies nor resolves anything to tell an English judge who is going to
consider a matter with a foreign element that whatever conclusion he makes, he must
impose only the law of the Forum. It offers absolutely no guidance about the parameters
in which he must take the foreign law into account. However, while precedents can be a
useful tool for resolving disputes, they shouldn’t be the primary consideration for making
judgments in the future. If a precedent is impeding justice and not living up to its full
potential, it should not be enforced any longer. A court should also be prepared to
overturn precedent if it later determines that it was the cause of an injustice.

The law must adapt in order to keep up with human evolution. Therefore, it is impossible
for any legislation to always be true if it is based just on prior cases. The ability of higher
courts to overturn prior rulings from lower courts is a prime illustration of this. In several
cases, courts have overturned earlier rulings in light of new information and logical
concerns that have emerged as time has passed.

Theory of Justice
As Dr Graveson, the founder of the theory of justice once expressed, “One of English
legislative and judicial justice, based on what English statutes say and what English
judges do in cases to which the conflict of law applies. It is thus both pragmatic and
ethical.” Dr Graveson created the theory of justice intending to provide genuine justice
as its only tenet. Ideally, according to Dr Graveson, his theory shouldn’t be applied as a
rigid rule in every situation. Rather, his major goal is to administer pure justice while
taking previous decisions, morality, and equality into consideration. Graveson
acknowledges that his hypothesis is not flawless because there are numerous situations
that are impossible to describe using absolutes, and because empirically formed rules in
this area of law, like those in other areas of the law, can occasionally result in very
difficult specific cases. It leads to the key conclusion that no one theory can adequately
address the issue of what constitutes the theoretical underpinnings of private
international law.

The main problem in this theory is that one must apply the laws of at least one foreign
country, but none is willing to concede to such laws. Giving down to foreign laws and
enforcing them when resolving disputes merely amounts to one sovereign losing his
sovereignty in front of another.

Cheshire and others point out that such a subjection of one’s sovereignty occurs by free
will and is not the result of coercion. However, one has no option when it comes to
matters of private international law. Because it includes the interests of many parties
who are at odds with one another, it is known as ‘private international law’. Therefore, it
is imperative that some kind of foreign law be used to address such conflict of interest
matters.

Private International Law in India

In India, private international law is applicable and is particularly pertinent in marriage

cases. In situations where private international law is relevant, the party must first
accept the Indian court’s jurisdiction. Hence, the jurisdiction is decided upon with the aid
of some personal jurisprudence rules, which serve as the linking principles that assist the
courts in deciding which law should be used to determine the case’s merits. The foreign
party must next go to the court that has jurisdiction, i.e., accept that court’s selection.
The foreign court must accept the decision after it has been made before it may be
implemented in the foreign state. Every nation has its own norms and laws regarding the
recognition and execution of foreign decrees and directives. Hence, the principles of
English private law are similar to the personal law regulations in India.
Indian Private law and marital issues
After India gained independence in 1947, laws governing foreign marriages were first
debated in August of that year. Therefore, the desire to pass such laws was made in
the 23rd Report by the Law Commission of India. Though the Special Marriage Act of 1954
was up for debate in Parliament, it was suggested that it should also apply to unions
performed outside of India even when all of the persons involved were Indian citizens.

On February 23, 1959, the Rajasthan Court heard the case of Christopher Andrew
Neelakantan vs. Mrs Anne Neelakantan. According to a Judgement made by Justice Modi, a
person residing in India who marries an English lady in England (probably in accordance
with national law) is eligible for a divorce under the Special Marriage Act of 1954, which
establishes the legal divorce process in India. As was made obvious in the Judgement of
the case that was exactly cited above by the Rajasthan panel, equity considers the intent
rather than the form.

The primary goal of the law is to provide relief or redress to the party who has been
wronged, and if there is a technicality that prevents granting that party remedy, the law
is sometimes referred to as being useless or aimless.

Issues with the applicability of Private International Law

in India
Government neglects the nation’s smallest unit i.e. a family, and if it continues due to the
aforementioned problems, it will halt the country’s development. Consequently, there
may be anomalies in the couples’ addresses, a multiplicity of their IDs, and the precise
location of their dwellings may be undiscoverable. Disputations impose strain on the
transportation system as well as the legal system. Even today, lawmakers don’t seem to
be promoting equality for both spouses, and the legislation isn’t developed enough to
address their problems. Foreigners come to India for their weddings and then depart
from the Indian state. In such cases, a woman may get cheated on moving abroad or an
innocent husband may get extorted similarly. The court must provide legal support to
such victims yet the law typically does not give such a scenario enough emphasis due to
conflict in the validity of laws functioning trans-nationally.

Marriage validity on an international level

There should be legislation to ensure that weddings performed there have a high level of
international legitimacy. This might be accomplished by giving the wedding officer the
authority to decline to solemnise a wedding that, in his opinion, violates the law. The
passport office and any other agencies that need it, including those where the foreign
national dwells/has citizenship of or is domiciled, must be notified about the wedding.
According to the premise of this citation, once a marriage is declared legal, it stays such
until it is dissolved by the parties’ mutual agreement or, if the parties believe that they
are at fault, by bringing a lawsuit in the jurisdiction where the party who was wronged
lives. The law of the land protects the party who chooses to leave India for a foreign
country because they value it more highly, and the alternate spouse continues living his
or her life normally because the first marriage had no legal standing. This is why
marriages solemnised in India must possess international validity to address the issues of
this nature that Indians currently face.
Provisions for the reciprocal recognition of marriage
When a foreigner or NRI travels to India and marries an Indian, they are considered to
have succumbed to Indian law. In India, if a dishonest or malicious individual breaks the
law, others will suffer the consequences. Therefore, the law is uniform in many areas,
including Intellectual Property Rights (IPR), Alternate dispute Resolution (ADR), and
cyber legislation. Every nation is expected to maintain diplomatic relations and recognise
weddings that are held abroad.

Research strategy for issues surrounding Private

International Law
Private international law is that area of law that determines how disputes involving
nationals of various nations are resolved. When looking into a private international law
issue, one will often be asking one or more of the following three questions:

1. Which court should have jurisdiction to resolve the conflict?

2. Which legislation should be used?
3. How should a foreign ruling be put into effect?

The following stages are beneficial when looking into a private international law issue:

1. To start, ascertain if the jurisdictions in issue have a conflict of laws policies by looking
at each one separately.
2. Determine if the subject of the dispute is covered by a treaty or convention.
3. Use supplementary sources.
4. Examine the laws of other countries and jurisdictions.

Difference between Private International Law and Public

International Law
1. The body of laws known as public international law governs interactions between
sovereign states and other international personalities. On the other hand, private
international law governs interactions between Natural or Legal Persons from two
separate States.
2. International conventions and treaties result in public international law regulations. On
the other hand, State legislation establishes the norms governing private international
law.
3. International pressure and fear, such as the severing of diplomatic ties and the
imposition of sanctions, are used to enforce public international law. On the other
hand, the relevant State executive is in charge of enforcing private international law.
4. Public International Law does not have an established court. On the other hand,
private international law courts have predetermined rules.
5. For all States, Public International Law is the same. On the other hand, state law and
private international law are distinct.

Difference Between Public International Law and Private International Law / Law of Conflicts

No. Public International Law Private International Law / Law of Conflicts

1) Public International law is the body
of legal rules, which applied between
Sovereign States and other
International Personalities.
Conflict of laws, often called Private
International Law. Private International Law
regulating relationship between Private
persons (Natural or Legal) of two different
States.

2) Public International law rules are Private International law rules are framed by
outcome of International custom and the State legislature.
treaties.

3) Public International law is enforced Private International Law is enforced by the

by international pressure and fear for concerned State executive.
example – breakage of diplomatic
relations, sanctions etc.

4) In public International Law there is In private International Law courts are

no Predetermined Court. predetermined.

5) Public International Law is same for Private International Law differ from state to
all the States. state.

--
Anirudha Choudhury,
Assistant Professor, KIIT Law School,
Bhubaneswar, Odisha.
Mobile-9861020916

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KIIT School of Law,

Kalinga Institute of Industrial Technology,

Bhubaneswar, Odisha

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