PRIVATE Priyanka Vaidyanath

INTERNATIONAL LAW
SYLLABUS
Introduction to Private International Law
General Principles: Successive stages in a Conflict of Laws Case
General Principles: Proof of foreign law
Domicile
Contracts
Torts
Marriage and Matrimonial cases
Legitimacy, legitimation and adoption
Property
Recognition and enforcement of foreign judgments
UNIT – 1 INTRODUCTION TO
PRIVATE INTERNATIONAL
LAW
Definition
Bases: Comity, Convenience and justice
Difference between Public International Law and Private international Law
Unification of private international law
Functions of private international law
 INTRODUCTION
Private international law is that part of English law which comes into operation whenever
the court is faced with a claim that contains a foreign element. It is only when this element
is present that private international law has a function to perform.
It has three main objects.
 First, to prescribe the conditions under which the court is competent to entertain such a claim.
 Secondly, to determine for each class of case the particular municipal system of law by reference to which the
rights of the parties must be ascertained.
 Thirdly, to specify the circumstances in which (a) a foreign judgment can be recognized as decisive of the
question in dispute; and (b) the right vested in the judgment creditor by a foreign judgment can be enforced by
action in England.
DEFINITION
Private international law is that part of law which comes into play when the issue
before the courts affect some fact, event or transaction that is so closely connected
with a foreign system of law as to necessitate recourse to that system - Cheshire
Private international law is the body of rules for determining questions as to
selection of appropriate law, in civil cases which present themselves for decision
before the courts of one country, but which involve a foreign element – Pitt Cobbet
 SCOPE OF PRIVATE
INTERNATIONAL
(a) Jurisdiction of the English court.
LAW
 The main rule in common law is that the English court can only hear a case against someone who has been
served a claim form in England or Wales. This rule applies whether the case involves foreign aspects or not.
But there are situations where the court can have power over absent defendants, especially in foreign cases.
Also, in some cases like divorce, the defendant being in the country doesn’t automatically give the court
power

(b) Recognition and enforcement of foreign judgments.

 When a case has been settled in a foreign court but the defendant’s assets are mainly in England, it’s important
to know if English law will accept and enforce the foreign judgment. If the foreign court had the right to
decide the case, English law generally treats the judgment like its own

(c) The choice of law.

 If the English court has the power to handle the case, the next question is about which legal system, English or
foreign, should apply. Private international law helps decide this. For instance, if a British person dies in Italy
without a will, Italian law might apply to distribute their belongings. These rules guide which legal system
should be used.
 BASIS OF PRIVATE
INTERNATIONAL LAW
The basis of the rules of conflict of laws is principally the need to do justice
May seen unjust if a dispute with French element is decided by an Indian Court applying
only the rules of India merely because it is an Indian Court.
This step of choice of law is also necessary to avoid ‘forum shopping’ , where a party may
rush and file proceedings in the court where he expects a more favourable result
It is also practical - if the disputes relates to immovable property situated in France ,
enforcing a decision of an Indian court may not be possible if the Indian courts have applied
rules of law different from those applied in France.
Doctrine of comity of nations : accepted rules of mutual conduct between state and state
which each state adopts in relation to other states and expects other states to adopt in
relation to itself.
 Indian parliament recognising the rule of comity occurs in section 11 of the Foreign Marriage Act, 1969. The
Act permits Indian diplomatic and consular officers to perform marriage of persons one of whom is a citizen
of India, abroad, but provides that no such marriage can be performed if such marriage is prohibited in the
country where it is to be performed. The Joint Committee of Parliament explained that it was done because
permitting the performance of a marriage prohibited in the country where it is performed would have been
contrary to international law or the comity of nations, and parliament desired that a marriage performed under
the Act had a high degree of international validity

There lies a sight contradiction between “the intention to preserve justice” and “comity of
nations” but latter is preferred over the former
 DIFFERENCE BETWEEN PUBLIC
INTERNATIONAL LAW AND PRIVATE
INTERNATIONAL LAW
Aspect Public International Law Private International Law

Scope Governs interactions between states and Deals with the legal conflicts involving
international entities private individuals / entities across
different states
Applicability Applies to matters like human rights, diplomacy Applicable to issues like jurisdiction,
state sovereignty choice of law and enforcement of
foreign judgments
Subject of regulation Focuses on state conduct in global arena Focuses on private matter involving
individuals, corporations and their legal
disputes
Sources of law Customary international law, treaties and general National laws, conventions and
principles of law principles of comity
Formation of rules Established through international conventions and by individual states’ legislative body
agreements
Enforcement mechanism Rely on diplomatic measures, economic Determined by national courts and
sanctions , international courts and tribunals executive enforcement
Aspect Public international Law Private International Law
Adjudication Cases may be heard in international Cases are usually heard by
courts/ tribunals domestic courts
Individual standing Individuals generally lack direct Directly impacts individuals and
standing to bring claims entities involved in cross-border
disputes
Role of state Focuses on states rights, obligations Deals with private rights and
and international cooperation obligations , guided by international
norms
Uniformity Strives for uniform application of Address conflicts of law across
international norms diverse legal systems
Objective Promotes global peace, security and Provides predictability and fairness
cooperation in cross – border legal disputes
Institutional framework Includes international Primarily relies on domestic legal
organisations, treaties and systems and international
diplomatic negotiations conventions
Direct impact on states Directly affects states in their Directly impacts individuals and
relations with one another entities engaged in international
transactions
UNIFICATION OF PRIVATE
INTERNATIONAL LAW
The need for unification arises because the internal laws of different countries differ from
each other and private international law rules adopted by different countries are also
different from each other.
Unification takes place in two steps:
 1. unification of internal laws of the countries of the world
 2. unification of the rules of private international law

Unification of private international law is a task undertaken by the ‘Institute for the
Unification of Private International Law’ UNIDROIT.
While the codification and the progressive development is of international law is taken care
of by International Law Commission.
the objective of the Institute may be to achieve the widest measure of harmonization
possible in the absence of unattainable uniformity of rules
The first instance was taken by the Bern Convention of 1886 – under which an international
union for the protection of the rights of the authors over their literary artistic works were
formed.
On account of basic ideological differences among the countries of the world, it is not
possible to achieve unification of all private laws, therefore another method of avoiding the
situation where courts in different countries may arrive at different results on the same
matter is the unification of all private laws.
 CODIFICATION OF PRIVATE
INTERNATIONAL LAW
Codifications of private international law has the same characteristics and fulfils objectives
similar to those of general codification but concerns normative aspects that regulate cases
containing elements of foreign law.
The primary objection against the codification of the rules is that they prevent the
appropriate treatment of specific cases according to justice and equity.
Interest of justice becomes subordinate to the needs of certainty
Different levels of development of the legal systems of the countries participating in the
unification process hamper the adoption of adequate rules for all thereby reducing the
effectiveness of the process
NEED FOR RULES OF
CONFLICT OF LAWS
If the provisions of domestic laws in different countries or jurisdictions are the same
there would be no need to have eules of conflict of laws since there would exist no
conflict. But this is not the case in reality
Two progressive solutions can be apprehended for the situation in hand:
1. to persuade as many countries as possible to adopt uniform rules of domestic laws in
fields which are likely to raise disputes involving a foreign element.
 An attempt of this has been made by few ad hoc conferences resulting in the establishment of UNIDROIT
and UNCITRAL( United Nation Commission on International Trade Law) – arbitration rules

2. larger number of international conventions adopting uniform conflict of law rules

 There are a few international conventions which adopt a uniform rule of law in specified situations which
have been given statutory force in India. [ Carriage of Goods by Sea Act 1925, The Arbitration and
Conciliation Act 1996]
 FUNCTIONS OF PRIVATE
INTERNATIONAL LAW
Private international law, also known as conflict of laws, deals with legal issues that involve more than one country. Its primary functions include:

Determining Jurisdiction: It helps decide which country's laws and courts have authority in cases involving multiple jurisdictions. This is crucial when
parties from different countries are involved in legal disputes.

Conflict Resolution: Private international law provides frameworks for resolving conflicts between different legal systems. It establishes rules for
determining which country's laws apply in cross-border disputes.

Choice of Law: It helps determine which country's laws should govern a particular legal issue when multiple jurisdictions are involved. For instance, in
contracts or property disputes spanning different countries, it specifies which laws to apply.

Recognition and Enforcement: It addresses the recognition and enforcement of foreign judgments and legal documents in other countries. This is
essential to ensure legal decisions from one jurisdiction are respected and executed in another.

International Contracts: Private international law governs international contracts, addressing issues like contract formation, interpretation, and
enforcement across borders.

Family Law Matters: It deals with conflicts related to marriage, divorce, child custody, and inheritance when these matters involve individuals or assets
across different countries.

Commercial and Corporate Law: It helps resolve disputes in commercial and corporate matters involving entities or transactions that span multiple
jurisdictions.

Treaty Interpretation: Private international law helps interpret international treaties and agreements concerning legal matters between countries.

Overall, the functions of private international law aim to create consistency and clarity in legal interactions across borders, ensuring fairness,
predictability, and effective resolution of disputes involving multiple jurisdictions.