Element: Havinc

NATURE AND SCOPE OF PRIVATE INTERNATIONAL LAW to
Conflict of laws or gliyalfiJnlfiinatiojal In

comes Into operation whenever a municipal court Is
f Wlt 1
^ ^
vplvjnc foreign element It Is only when this element Is present that
^
international law has a function to perform. Usually the cases that come for
trail before Indian
courts are those in which cause of
action arises In India, whose parties are Indians or domiciled in
India and the other elements ol vhich are also of domestic character. These
^ ...
are occasions (Sjt
Indian courts are also seized of cases havinc foreign elements I e , one or the other elements of
the
suits Is connected with some foreign country for example an Indian tourist is injured in a
road
accident in London. It may be the place of business of one of the partfcsrfor example, an Indian
company agrees to purchase computer software from a company incorporated in New york; or it
rnay be a foreign domicile, for example, an Indian women marries a man domiciled in
Irary
Private international layyjs not a separate branch of law in the same sense as . say, the law of
.contract or of tort. It is all pervading.
"It starts up unexpectedly in any court in the midst of any process. It may be sprung like a mine in a
plain common law action, in an administrative proceeding inequity, or in a divorce case, or a
bankruptcy case, in a shipping case or a matter of criminal procedure. The most triviaj action of debt,
the most complex case of equitable claims, may be suddenly interrupted by the appearance of a
knot to be united only by Private International Law."
Private International law though has an international aspect, is essentially a branch of municipal law.
This is why every country has its own private international law. Private international law though a
branch of municipal law, it doesn't deal with any one branch of law, but is concerned practically with
every branch of law and thus has a very wide ambity
The need for private international law arises because different countries have different systems of
law. Every country makes laws regarding property, succession, marriage, matrimonial causes,
adoption, contract etc. Sometimes even within a country there may be different laws applicable to
different places for example, laws of different states of the United States differ from each other. If
there is no conflict between the laws of different countries, there would be no need for Private
International Law. Since the laws of different countries differ, it becomes necessary in every country
that there should be a branch of law which is given the name of Private International Law or conflict
of laws.
</
Private International Law is always concerned with one or more of three questions, namely:
ur irt .
( 7 )^Rpfognition and enforcement of foreign judgements
( 3HTie choice of law .
Thus, the subject matter of Private International Law relates to every branch of Private Law, but
only
in connection with these three matters.
PUBLIC AND PRIVATE LAW:

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r )
)
Irlriir 66 that
t aamonal
thG COnfl Ct f laWS S concern
English books on
ina courts to try
'
° ' ed much more with private than the public
the conflict Of laws do not discuss topics
crimes committed abroad, or the extradi
mutual assistance between tion of
law. It is
as the jurisdiction of
persons accused of crime, or
States in the conduct of criminal prosecutions
deportation of alien , or the immigration or '
)
)
^
PUBLIC LAW:
)
Public law is that part of law which is applicab
le to State in relation to its subjects. Thp tp <u nf Public
law depends upon the nature of the parties
to the relationship in question, if one of the parties, i . e .,
the State, the relationship belongs to
Public law. In modern times since the Stats have drifted from
) laisser -faire to welfare States, which have entered
in trade and industry the scope of public law has
greatly increased. In other words, all the
acts done by the government officers in furtherance of
i
the_ cjQmain of Public law. Likewise the criminal law. Constitutional
i law and administrative law are other forms of
Public law.
PRIVATE LAW:
Private law is that part of the law which determ
ines relationshipbetween individuals in their
ordinary private capacities. Jhe law of
contracts, the law of property, torts, etc., are the examples of
Private law. The modern jurists like Kelson, Duguit do
not recognise the difference between public
and Private law.
PUBLIC INTERNATIONAL LAW AND PRIVATE INTERNATIOANL LAW

:
"Private International La w is a body of principles for determining question
II
s of jurisdiction, and
questiohs as to the selection of the appropriate law, in civil
cases which present themselves for
decision before the court of one State or country, but which involve foreign elemen , i
T ' t' .e., which
affect foreign persons or foreign things, or transactions that have been entered into wholly
or partly
(t | in a foreign country, or with reference to seme foreign system of law."
"The objects of Private International Law are, first, to prescribe the conditions under which the court
t l .^ 1 Is competent to entertain a suit: secondly, to determine for each class of cases the particular
'
U territorial system of law by reference to which the rights of the parties must be ascertained and
i
* thirdly, to specify the circumstances in which :
•
( a ) A foreign Judgement can be recognised as decisive of the creditor by in a dispute; and
( b ) The right vested in the creditor by a foreign judgement can be enforced by action in Englan
d."
According ttCMichael
Akehurst)there appears to be little connection between Public International
Law and tho warinuc municipal systems nf Private International-Law. Private Interna
tional Law is
different in each country; there is consequently no affinity between Private and Public International
Law. Private International Law is essentially part of municipal law.(5?ce$lcalls it as conflict of Laws
since it deals with rules regulating cases in which municipal laws of different static rnme jntn
conflict. Such conflicts may arise in connections with domicile, marriage, divorce, wills, validity of
contracts, etc. It is also known as inter- municipal law, international comity, etc. Only ir. excepti
onal
circumstances do rules of conflict of laws become rules of International Law proper, as for instanc
e
when they are incorporated in international treaties.
i
/y
)
k.
zr
I
The permanent court of CD
International Justice observed In the Serbian Locus case, that the rules of
Private International law may be
common to several States and may even be established by
International conventions or customs, and In the
latter case may possess the character of tree
International law governing the relations between States. But apart from this It has
to be considered
that these rules from part of municipal i
law .
According tc( SjTRobert Phillimore) rights arising under PublicInternational .

law are called absolute
or rights statics juris, and their breach constitutes
a casus belli and Justifies in the last resort a
recourse to war, whereas Private International law - the rules of which are founded upon
Qonyenjeficeiând. intend to facilitate the intercourse between the subjects of different States
confers no absolute rights.
Private International lav/ is distinct branch of jurisprudence which has as its major topic the body of
rules determining which territorial system of law controls Private law cases that have roots in more
than one State, canton or province. Violations of Private International by a State mav lso constitute
^
violations of Public International law if they are also breaches of treaties agreeing to follow certain
practices in relation to the former. Public International law is a product not of the relations of
private persons but of the relations of States to each other and to public international organisations.
RANGE AND DIFFICULTY OF THE SUBJECT:

The interesting feature of the conflict of laws is that it is concerned with almost every branch of
JPrivate law. According to Baty. 'there is a sweep and range in it which is almost lyric in its
completeness. It is the fugal music of law'. The distinguished American judge Cardozo Osaid thatjt ^
is 'one of the most baffing subjects of legal sciences'. And who also remarked that 'the average
judge when confronted bv a problem in the conflict of laws, feels almost completely lost, and, like a
,
drowning man, will grasp at a straw'. The subject is not only notoriously difficult but also very
controversial -judges differ, and so special do jurists. The result has sometimes seemed unedifying
Prosser an American writer that "is a dismal swamp filled with quaking quagmires, and inhabited by
learned but eccentric professors who theorise about mysterious matters in a strange and
incomprehensive Jargon".
"Although the conflict of laws is highly controversial, the number of permutations and combinations
arising out of any given set of facts is limited and so is the number of possible solutions. In any given
,
case the choice of law depends ultimately on considerations of reason, convenience and utility. In
the conflict of laws, to a greater extent than in most other subjects, there is much to be learnt fram
the way in which similar problems have been solved in other countries with a historical and cultural
back-ground and traditional similar to our own. Hence no apology is needed for the occasional
citation of Scottish, American and common wealth cases, even in a students' text book."
TECHNICAL TERMS:
Like any other legal subject, the conflict of laws has its technical terms or jargon. The rules of the
conflict of laws are, traditionally, pyprewH in tprms of juridical concepts or categories and locating
elements or connecting factors.
In attempting to determine what law governs in the cases in which foreign elements are involved,

I
©
the courts seek guidance
4
i
fro m connecting factors, i. e., the factors
r a person to a which link an event , a transaction
° country.
i
Examples of such fac tors
are :
I . Lexi loci contr
actus: the law of the place where the contract was
madp-T <
Lex loci solutions: the law of the place
where the contract is to be performed ''- 4
Lex loci celebrations: the law Q the place /
where the marriage was cclebraterj/ *'*
^
Lex loci delicti the law of the place where the tort was
Lexdomicilil: the law of the place where a person is domidlec
Lexpatraie: the law of the nationality/*
committed;/
/
'
*
Lexsitus: the law of the place where the property is situated
^
Lex loci actus: the law of the place where a legal act takes places.
Lexmonetae: the law of the country in whose currency a debt is expressed ?
Lex loci disgrazine: the law of the place where a bill of exchange is dishounred . ^
The above terms are used in relation to Lexcausae. The lexcausae is a converiie ^nt short hand
expression denoting the law which governs the question- Itis- used in contradiction to the lexfori,
which always means the domestic law of the forum.
BASES OF CONFLICT OF LAWS:

Various reasons_have beengiven from time to time to explain as to why municipal courts apply
foreign law. gfliity.qf flationpvas the earliest. Dutch jurist, John Voet, its earliest protagonist, said
0 ^
that one nation applies the law of another to show its regard towards it. It was at one time suppose
that the doctrine of comity was a sufficient basis for the conflict of laws: and even
to comity are sometimes found in English judgement (Travers V
Holley 1953 ); and
today referenc
Igra
es
d
V Igra (1951).
England. Suppose that such a marriage is
If , for example, first cousins domiciled in Portugal marry in
English court will hold this marriage void, even if
valid by English law but void by Portuguese law. The
inferred from the court of Appeal decision in
the parties wished it to be valid. (This may be
decision does not serve the interests of the parties, but
Sottomayor V De Barros (1877)). Clearly this
,
expectation
interests of a foreign country and partly in the
it is based on comity partly to protect the
that the favour will be returned. comity is a matter for
comity ' itself is incompatible with the judicial function, for
The word ' Again, if
sovereigns not for judges required to decide
a case according to the rights of the parties.
readiness of
,
norma l meanin g of courtesy it is scarcely consistent with the

the word is given its of the law
enemy laws In time of war . Moreover, if courtesy formed the oasis
English courts to apply that
judge might feel compe lled to ignore the law of Utopia on proof
Private Internationa ! law a
£xamiLyjrnplies aJ ilateraU
_ ) nQta_uni]a_ teraJ,
Utopian courts apply no law.but- theirLawn iflC ^ except
comity means that no foreign law is applicable in England
( relationship. If, on the other hand ,
course, thatjhfi.
ion of the soverei gn , it is nothing more than a truism. The fact is of
with the permiss .
nty. It mearly derives
foreign law implies no act of courtesy, no sacrifice of sovereig
application of a
from a desire to do justice* .
propounded is that foreign lawis

Another basis for the application of foreign law thathas been of most
© applied because it Is necessary for theQeterrnination of the
rights of parties) Present laws
having foreign elements. Then
it
countries accept that municipal courts have jurisdiction to try suits
follows that in such cases the courts should apply the relevant foreign law. Thus
, tfaalndianco_urt _Ls
in Singapore, the
called upon to adjudicate the rights of parties arising out of a contract- £ntered.into
u-
7

©
3 is incumbent uponthe
whichever is considered t
7f dVa
^
b
C
°
S
^ ?
Uft tha
.
~
i
"
'
-ar-"! ,— for arrMnB a a complete and just decision, it
*
il shou d' decide under the law of Singapore or Pakistan
^ requires thatT T°
^
f r th npPl&
° ,° atlQILO f _tb e_f o tgjgn.Ia WJS said to be<ficmand of
re n aw si ouid be applied
* ' . ) It justice
^
applicat ' o
. The
protagonists of this view sav that invariable
f xh
f thC SG rcspectors cult
'
is ° ^
challenged on the ground of lack of
tomes for consideration before an English court and its validity
proper formalities of marriage. If English law is applied the
marriage will be void as among self
-respector Hindus only ceremony of marriage that is required is
exchange of garlands and rings between the
^
bride and bridegroom. As per the demand of justice the
English courtshould apply the Hindu law.
The greatest difficuIty-thatoneJaces.in the application of this theory is as to what is the meaning of
justice. According to graveson it is to a great
extent a legal reflectionolglhicaLand moraLyaluss
,
—
CQnriitioned-byLtimp, plane nri rjp umstanrps, much as the concept of reasonableness in common
^
law is a reflection of contemporary^ social values
Cv O .
Justice Chandrachud said that recognition is accorded "not as an act of courtesy but an
/•> consideration of justice".
Whatever may be considered to be the basis of the application of foreign law, it is now accepted
principle that in a case having foreign elements, some appropriate foreign law is applicable.
V
FUNCTIONS OF PRIVATE INTERNATIOANL LAW:
JURISDICTION:-
L The law of procedure of every country lays dowjLthatin-whaUnattecwhich court will have
.
jurisdiction _The procedural law also lays down rules for other matters of procedure and in some
systems of law these rules apply to all types of suits, to suits having foreign elements. The Indian civil
procedure code and the law of civil procedure of many other countries lays down that the court shall
not proceed with the case_unless the service of summons is made on the defendant. This rule applies
. . . ,
to all defendants, including those who are living abroad. Looked at from this aspect the
, question of
jurisdiction is a fundamental question in all suits and legal actions. However, for the following two
- i
1 reasons it has special significance in Private International law.
• >
whejUhejj&fendanLis
l j First , in certain circumstances the court exercises jurisdiction in a case even
) absent. In a suit whose all elements are interval, the judgement rendered in the absence of the
|
1
*
^
(
defendant. Such a judgement may also be enforceable when it has some
the court that rendered the judgement is concerned- But, then, such
foreign elements|o_farjs
a judgemenynayjiot.be
i
recognised elsewhere.
La
~ Secondly, these are certain matters
marriage or in a suit relating to
defendant is present, such as in a petition for dissolution of
^ immovable property situated abroad. The question of
jurisdiction r , ay arise before the court in the
following two circumstances:
- i
kA .
/> ^ a suit Is filed
( b) Whenjho
guestlon
before the court the question arises
whether the court has jurisdiction, or
^
before the court is of the
enforcement, the court may be called recognition of
ajoreicn judgement or its
upon to letcrmine
the judgement was a
)
court of competent jurisdiction
the principle that the court renderin
^whether the foreign court that rendered
. Normallythe rule s of jurisdict
-) ion are based on
g ludaement
c. (T
countries of the world re unanim
place has jurisdiction
^
must be able to enforce it Today most
ous on the view that in respect of
- . of the
innovations th court of that °
)
. .. r
where the property Is
unanimity. Similarly, in suits relating to persona
situated. But In respect of movables there
l matters there is no uniformity
.
^ is no such
) , ' RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENTS

r) . \
\
The Private International Law has to determine
:-
circumstances in which and the basis on which
v foreign judgements are to be recognised. In some
*r
countries including India civiLproceduieJav/Jays _
l'* " down dgtajledju|&jegarding he-recognltiQn.and enfprcement
^ of foreign judgements. Once- tbe
,
Court comesto the conclusion that the foreign judgement Is a judgement

of competent court, it
would not take Into account th5Lguestipn_whethe Lheforeign
r- law made a mistake on matters of law
or facts. The question of the competency of the foreign
court is determined by the rules of Private
international Law. C.
¥ CHOICE OF LAW:-
Once the court comes to the conclusion that it has jurisdiction, then in a conflic
eT
f
t of lav/ case (case
having foreign element ), the question that arises is: Under which lav;
the suit shouldbe decided..??
y
Whether the law of the forum (
internal
law ) will apply or whether some foreign lav/ or foreign laws , .
will apply. This is known as the question of choice of law,,
<
/ - * -The action before a court, for instance, may concern a contract made or a tort committed abroad or
=
_
^
the validity of a will made by a person who died domiciled abroad. In each case that part of the
country's law which consists of Private International Law directs what legal system shally apply to
the case, i.e., to use a convenient expression, what system of internal law shall constitute the
f
applicable law. For example, a wife files a petition for judicial separation in an Indian court under
* -
Ijy J Hinffus married in England, and while thevw/enLtO-New_Yoriahe_hu5band desertedher theie- The
( Indian court has jurisdiction now the question is, which law should be applied: Law of England, New 3c
Private International Law. Private International Law merely informs as to which systems of law,
foreign or domestic, will govern the matter. English Private International Law, for instance, requires
c
that the movable property of a British subject who dies intestate domiciled in Italy shall be c
distributed according to Italian law. These rules for the choice of law, then, indicate the particular
legal system by reference to which a .solutio <
n of the dispute must be reached. This does not
necessarily mean that only one legal system applic
is able, for different aspects of a case may be <
Boverned by difficSGIt laws, as is
Eoverned by different laws.
the case with marriage where formal and essential validity are <
The function of Private IntemationaLLaw is complete when it has chosen
g_ a£gropriate systemofjaw
^ ‘,
. its rules do not furnish a direct solution of the dispute. As said by
rC tH S depart
! ,
must f aw resembles the inquiry
nray learn the platform ° office at a railway station, where a passenger
at which his train starts
.
L "
----- -• r
——
r
0
UNIFICATION OF PRIVATE NTERNATIONAL LAW:
'
noe or Private International Law arises becnus j the
' Inter nal laws of different countries differ
Wi
:
rom each oth(? o The dlffcrentcJs not only In the Internal laws of the different countries, but also In
3
t c Private International Laws of_ the d|
^ . ,on account of which sometimes conflicting
. ffcreni. £ounttlcs
decisions are pronounced by the courts of different on the same matter. Thus, the need for the
unification of rules of Private International Law lses.
>
CIVIL AND COMMON LAW SYSTEMS:-
^ V t i* 'A
Thero are two major systems of law, the common law and the civil law. These two differ from each —
! (
other as to the rules of Private International Law. Germany, Switzerland and Scandinavian countries ^
restrict the scope of Private International Law to pi oblems of conflict of laws and matters
relating to i u- J
status of foreigners fall under a separation to branch called the law of foreigners. Private
International Law of Soviet Union and of the People's Democracies of Eastern Europe include
within Ltv
~
-
~
L
*
its abmit the rules of choice of law along with all the connecting factors such as nationality or tji
{
domicile, the place where the contract was entered Into or is to be performed. However the
, rules "
L
relating to resolving of conflicts of Jurisdiction are not Included within the rules of Private t
International Law. They are considered to relate to procedural law. The countries of the
common
law systems include the rules of jurisdiction as well as the rules of choice of law within the scope of '6
Private International Law .
' There,are (fwo modjgforthe unit
the inteyal laws of.the countries of the world.
J^,(a) Unification _of
tb)TJnification of the rules of Private International Law.
I
UNIFICATION OF INTERNAL LAW: - __
laws was taken by the (Bern Conventionjbf
The first step in the dire.ctionflfJhe.unLficalion-OfJntemal ' '
which an Intern ationa l union for the protection of the

1886. Since amend ed severa l times under
was focmed. Another important example_of
riphts nf authors oveciheir- literary and-artistic-works
as amended at The Hague, 1995, and supplemented
unification is_the(Warsaw Convention)of 1929 by
by thefGuadalajarTconvention,)1961, which
makes the international carriage of persons or goods
as regards both jurisdiction and the law to be applied
It .
Tor
aircraft reward subjeetto uniform rules
purporting to alter the rules on these matters shall
also provides that any agreement by the parties
be null and void .
to the Institute for the Unification of Private
Laws-
The council of the League of Nations entrusted
CuNIDROIl) established by the Italian government
.
in Rome An important result its
laboursjn
) was the conclusion at the Hague inl9S4 of a

conjunction with those of theQHague Conference o onthe
convention which establishes a uniform set of
rules on international sales of goods andals
_d
There. is now a succe ssor to the 1964 Convention, the Unite
formation of contracts for such sales
under the
Nations Convention on contracts for the Internationa
l sale of goods_il580), prepared
on
body conce rned with the unifica tion of law, the United Nations Committee
auspices of another
^
International Trade Law- jNCITRAL
,
LAW:-
UNIFICATION OF PRIVATE INTERNATIONAL possible to
ideolog ical differe nces among the countries of the world, it is not
Because of basic

©
achieve unification of all
laWS ' Thcreforo another method of avoiding the situation where
courts in different r
^ les of *
' ,
V arriv diffcrcnt resu ls
the Privat 6 ntCrnational Law °
thc same matter is the unification
of the
> Considering the importance of the unification of rules of
Private Internaf SeV ra sor ous international efforts have been made In this direction.
AttemptsS hav
.
°
aVe Gen mad<? ln th H * * Conference on Private International Law to reduce the
n ° °BUO
ero tofjks on which the rules for choice of law In different countrl( conflict, thus Indicating
the common to the civilised world.
^
°t groat significance taken In 1951 was the drafting of a character designed to place The
been accepted by many countries, including the United Kingdom, and the Bureau, consisting of a
Secretary General and two Assistants Secretaries.belonging to different countries, was established at
The Hague. It's chief functions are to pyamine and prepare proposals for the unification of Private
International Law and to keep in touch with the council of Europe and with governmental and non-
governmental organisations, such as the common wealth and the International Law Assodation.JThe
Bureau works under the general direction of the standing government commission of the
NetheiJands, with the object of promoting the codification of Private International Law. Active
consideration is now being given in the Hague conference to the preparation of a world- wide
convention on jurisdiction and the recognition and enforcement of judgements.
In addition to the conventions mentioned above, many similar arrangements hav£imen.made

ro mnriuHnH
between individual countries, as for example the bilateral rnnvpnti' ? nn iwil prnrQd"
«~
Belgium. the Netherlands and

convention is.thatConcluded in 1969 between the Benelux states^-
matters,
Luxemburg- which unified the rules of Private International Law on the more important
validity of contracts.
such as capacity and states, succession to property on death and the essential
International efforts in this regard have achieved only limited success.
INDIAN PRIVATE INTERNATIONAL LAW:-

IjndianlPrivate International Law is yet in its formative stage. Most of the rules
of Indian Private
English Private International Law.
International Law have been borrowed from, or are based on,
, now Indian courts have
Probably, before the independence of India nothing else was possible. But
an opportunity to develop own rules of Indian Private International Law.
during the Gupta
It is well known that much before the advent of Mughal rule in India, particularly
beyond,
a nd MaurvianEmpires. India had a flourishing trade and commerce with countries far and
across the high seas and through the inland routes. It seems to be evident that many suits pertaining
to contracts and transactions relating to trade, commerce and other matters must have come before
Indian courts. The Indian courts did not decide the matters entirely by reference to Indian law:India ,
has a fairly developed law and custom of merchants and the suits were decided thereunder, jt is also
evident that during the Gupta and Mauryian Empires, law in India was territorial, though usage and
custom too had their place, sometimes supplementing law, sometimes over riding it.
)
With the establishment of the Mughal Empire
in India on many matters rules of Muslim law came to
Lv Scanned with CamScanner

i applicable. However, in most matters, If both
the parties were the parties were
I Muslim, Muslim law was applied. In person J mat ers the entire area of the
family law, it was the personal
law of the parties that was opp e werg governed by their
I own Muslim personal law.
Thus emerged the era of personal laws |nj|g
^
j
During the British period,
from Its beglm ng to Its end various communities in India were governed L*. .
?^
I by their personal law
in personal matter Thus though there was a possibility of conflict in personal
laws but such occasion of conflict was very
rare. This was so because a Hindu could not marry a Non-
^
Hindu under the Hindu law. In other
words Inter community relations were not possible. Such inter
community or inter religious marriages
could be performed in civil marriage from under a separate
form under a separate statute, the Special Marriage Act, 1872- 1928. Inter State and inter religious
marriages were made possible under the Act
by an amendment of 1923, this statute has now been
repealed and replaced by the Special
Marriage Act, 1954 under which on the satisfaction of certain
requirements as to capacity 'any person can
' perform a marriage . Once a marriage was performed
under the Special Marriage Act, parties cease to be govern
ed in most of the matters by the laws of
their respective community. In all matrimonial matters, including
matrimonial causes, they were
governed by the Special Marriage Act,
1954 and succession to their property was regulated by the
Indian succession Act, 1925. Thus in most potential areas of conflict commu
of nal laws, the conflicts
were avoided. This continues to be the situation even now . In the personal matters laws India is
in
not territorial but personal.
During the British period. India developed contacts

not merely with the countries of the British
Empire but also with other countries. The result was cases with the foreign elemen
ts did come for
adjudication before the Indian courts. Just as in other matters, so in the cases having
foreign
elements, the Indian courts decided mostly by applying rules propounded in English decisions. Thus
basically the rules of Indian private international law are based on the_rules of English private
internationalJaw- Now Indian courts are in a position to develop the rules of Private International
law in accordance with the social needs and circumstances of contemporary society and in
accordance with the ideas and notions of justice. But still the Indian courts are following the rules of
English private international law.
In a very.wldejnd.broad sense Indian law means all rules of law which Indian courts
apply when
which the courts determine the questions of jurisdiction and choice of law. Inj narrow sense, Indian
law means allsuch rules excluding the rules of private international law.
Sections 9 to 35 - A and 44-A of Indian civil proceduifiLCQdfiJ.908 deal with the aspects of jurisdiction.
In general, section 13 of the code deals with recognjtion and enforcement of foreign judgement in
particular. Indian courts have adopted and following the English
rules/principles relating to choice of
law in torts, contracts, marriage, status etc.
It has already been said that certain international efforts have been made
to bring uniform rules of
private international law with little succes
s. Even the conventions that have been entered into by
parties/states can be recognised or incorpo
rated in the municipal law as private international law,
though has an international aspect, is essentially a branch of municipal law. Thus, it can be

/
)
\c J
concluded that the inte
rnational conventions to become part of municipal law, specific adoption Is
required .
) TITLE:-
According to Cheshire the expression
adoptr j by
"Private International law", coined by story in 1834, was.
the earlicr.Enixlish authqrsf such ns West take and
^
countries. The chief criticism directed against lt Is
^ Foote. and is used In most civil law
« Its tendency to confuse private International law
with the Jaw_of nations or public International law,
..
as It Is usually called
An equally common title.to..describelhe

.
sufalect and one used In the USA is "TheXPJl lictsJ?tUw5,,•
^
case. In fact,Jhe very purpose of private International law
.
Is to avold conflicts of law
The fact is that no title can be found that is accurate and comprehensive
, and the two titles "Private
International Law" and "The Conflict Of Laws" are so well known to, and understood by, lawyers that
no possible harm can ensure from the adoption of
either of them. The title, "Private International
Law" is most widely used throughout the world and
in Cheshire's view the title "Conflicts of Laws" is
preferable .
Both the above titles are subject to criticism and a few more titles
have been suggested but these
have been so much criticised as cannot be accepted as a title for the subject They .are:
(apnternational Private Law",
( bPnternational Municipal law".
(c)"Comity",
(d)"The Extra territorialRecognltion of Rights
".
In spite of a number of criticism, only the titles "Private International Law
", and "The Conflicts of
Laws" have been considered suitable for the subject.

*****
*
2 - Classification or Characterization CH - 2. ©
* *,
mUC 1 c cl entis on how the issue is classified or characterized. Is it an
r, * 0 r
issue ul b "
C
. commission ol a ton ? I his may be labelled as classilicalion
0j
nee this has been determined, the next stage is
to ascertain the governing
which, depends on some connecting
factors, such as lex situs , the lex loci delicti, and so
forth.
At this stage, a second type of classilicalion has to be done in order to

idenlil\ the
legal characteristic of a particular rule. Problems may arise as to whether a
particular rule is
to be classified as a rule of substance or procedure. This type of classification may be labelled
as classification of a rule of law.
A. Classification of the Cause of action
Every' legal system arranges its rules under different categories which must form the
basis of a plaintiffs claim. These categories mav be concerned with tort, contract, property,
status, succession, etc. Before the forum can proceed to ascertain the lex causae , it has to
dgtermine the particular category into which the action falls. Does the action relate to the
formal validity of a marriage, intestate succession to movables, or some other category?
An action mav fall under more than one category, for example, an employee may be
able to sue his employer either in contract or tort; or the action may not fall under an^ of
them, such as the duty of a father to provide a dowry for his daughter under Greek law
lFhranlzges v Argentina ( 1960)J.
The crucial question therefore is how does the forum classify the cause of action? Is
the classification made according to a country’s internal law? It is obvious that this
classification process is very crucial to the outcome of cases: however English case- law does
nol ^-
.
i mrliiiw this process is dr should be conducted.
According to Cheshire and North , Private International Law:
“there can be little doubt that classification of the cause of action is in practice
effected on the basis of the law of the forum. But since the classification is required for a case
„
^
.
nT , ainin a foreiun element it
, should not necessarily be identical with that which would be •
appropriate in a purely domestic case”.

<M ©
It follows, therefore, that the judge must not rigidly conlmP him^lf »n the concepts or '
categories of a particular country
^ internal law.
B. Classification of a Rule of law
Once the legal category ot a given case has been identified, the next stage is to apply
the relevant choice of law rules in.ordec.tn identl£y_tlie exv _ cauxae. _ However, even
this
^
stage it may be necessary to classify a particular rule in order to determine whether it trrfhs ' 1
at
within one choice of law rule or another. This process can be better illustrated by examining
the choice of law rules. For instance, capacity to marry is governed by the law of each party ' s tacvO
ante -nuptial domicile, and the formal validity of marriage is governed by the law of the
.
^
phtce where the marriagejwas celebrated. A problem of characterization will arise if it is
doubtful whether a rule of the domicile of one party is the rule of capacity in which case it
will apply, or whether it is a rule of formality in which case it will not apply.
In other words, once the main legal has been determined, the next step is to
category
apply the correct choice of law rule in order that the governing law may be ascertained. The
correct rule will depend on some connecting factor, such as domicile, or the situation of
immovables, which links the question to a definite legal system. X, for instance, dies intestate
domiciled in France, leaving movables in England. Since he has been connected by domicile
with France, the operative rule for the choice of law is, therefore, that the question of intestate
"
succession must be governed by French law. However, at this stage the second process of
classification lias to be gone through. It may be necessary to identify the legal category into
which some particular rule falls, in order to discover whether it falls within a particular
category with regard to which the law selected by
choice of law rules is paramount. That law
.
has a certain sphere of control, i e„ it governs some
but not ail aspects of the. juridical
question as classified by the court. For instance, in an action brought

in England for breach of
matters of formal and essential
a contract made and performed in France, French law governs
validity, but all questions of procedure are subject to English law. French
A procedural rule is
relating to matters of substance, its
outside the sphere of control of the chosen French law
true nature must obviously be determined It must .
be ignored if it 1 procedural in character,
otherwise it must be applied. Likewise, an English domestic
rule is expected if it relates to
nature.
form or substance, but is applicable if it is procedural in

A IS
2 Procedural Rules: lex fori governus:

Ogden v Ogden (1908)
CM ©
0 relevant fh ’ • ^ undci stood that incases containing a foreimi element , although the
3
.
~T
~ •
selectcdjmd applied , it does not mean that all nuestinn < m- kim tv. -
is
ai£~ ClUSiVC y dctCrmincd bV thc lex comae. On the

. .
2
-
^
oretgn element, there are' trial of a tfase containing a
certain areas where the lex causae is paramount . There may be
other areas where the lex causae has
no application . For example, in all matters relating to
procedure, it is the lex fori
that governs: the lex causae is inapplicable.
A procedural rule of the foreign law will not be reco _

nized _ byjhe English Court, if it
.. ^
is at vanancc-with thp Fngijgh r |f jt means that a procedural rule is outside the control of
lex causae. Consequently, it is very important to determine whether a particular rule is a rule
c of procedural law or, a rule of substantive law. Here the judge has to make a classification
%
and determine whether the rule in question belongs to procedural law or substantive law.
3 Sometimes there may be conflict between the lex fori and the lex causae on this question of
. classification; lex fori may classify the rule as procedural, whereas, the lex causae may
3
classify it as substantive. The further question naturally arises as to which classification must
be adopted by judge.
This kind of problem is illustrated by the controversial case oWiiclen v Ogden.

3
3 Facts of the case: A 19 year old man domiciled in France, jnarried a woman domiciled in
2»
_
England wjdiniit nhtgining parenlaLconsent as required by Art. 148 of the French Code
. ,
( Below 25 years, a son cannot contract a

marriage without the consent of his father or mother
3
- Art. 148 ).
Q
marriage from a
After some time, .the husband obtained a decree of annulment . of.
,
.
O
- - manage void for the violation f Art. » 48 Subsequently the
° .
o frrr h rnprt holding flic
woman married an English man in England . This Fnglish
_
man after some time instituted . ^
3 _ _
presentacti.on.in an Eaglish.Court praying. fbr.a decree.
of nullity_ of; hi§ marriage onjhe
3 .
ground that at thejjm <LOf marriage .the woman.was
married to the,French man . The question
in violation of the requirement ot
3 raised was the validity of the marriage with
the Frenchman
3 parental consent.
_
The court classifie.d JheJjulc.. - ^
_
pf parental onscnt as. one relatingjo formality or
.
_
* rocedure. A 7
the w
^^
e took. gjacejnEnfilandjhe formal validity is
_
govemedby Enghsh
FrencVproceduraUujes areJnappiicable. Hence the court ignored the Frenchjmkof

3
r
1*7
(V) CM©
parcnial consent and held the marriage with the French man valid with the result that the
subseau ent marriage with the English man was void. This classification of the French rule of
parental consent as a matter relating to ceremony rather than substance, has been subject to
.
severe criticism It has been pointed out that the rule of parental consent is one which affects
the capacity of the husband to enter into the marriage relationship and therefore is a matter
relating to substantial validity.
i
!
!
i
i Scanned with CamScanner

3 I <r
3
3 .
3 Incidental Questions
» 3 A case involving private international law may place a subsidiary issue, as well as a
main question, before the court. Once the relevant choice of law rule has been applied and
law to govern the main issue is thereby determined , a further choice of law rule may be
required to answer the subsidiary question affecting the main issue.
-3
- 0 Sometimes categorization also raises the so-called jncidental Question , which is also
called a preliminary question and it arises because the main problem may not even if
. .. ,
resolved , answer the question to be determined hy the court . This problem may be explained
as follows.
If the main problem relates to succession, the issue will be resolved by resorting o the
rule settled in ( English aiid / lndian ) a country 's conflict of laws, that succession to immovable
o
property will be decided by applying the /e.v situs and lex domicilii, respectively. But this
answer may not resolve the issue before the court.
3 _
If, for example, under either thg /e.r situs or the lex domicilii, a wife is the person to
.
2 % _
^
%
inherit , a question may arise \ vhether_ a _ particular person was, in law , the wife of the
#
deceased - which mav raise the incidental question of-the _validity_ Qf the marriage of that
3 personJOther instances are: whether that marriage was bigamousor potentially bigamous,
3 and, therefore, invalid (as was the law in England in the past); is a particular person the
3 legitimate child of the deceased etc.
3 These are incidental questions in as much as they arise afterthe^ court has determined
3 the lex causae as far as the principal issue of succession is concerned . Moreover, these
questions might involve the application of different rules of law depending, for example, on
3
when , and where, the parties married , or the child was born . The rule of law to determine the
3
-
so called incidental question mav not he the same as the rule of law to determine the law
3 applicable to the question of succession to the property of the deceased . Whilst the lex causae
3 to determine the rule of succession would be the les situs or lex domicilii of the propositus.
3 whether ‘ X * was the wife of the deceased may depend upon theJaw of the place where the
D marriage was celebrated .
3 The problem seems to have arisen principally in cases where the question whether a
second marriage was or was not, valid.
0
>
>
)

tMB -® '
-
IJ
_
hi several decisions where the question has arisen, the courts have applied to the
incidental question the same law which was applicable to the principal questioj). at times
^
without dealing consciously with the question as a separate question. In brief, it ma>
that the following are the elements of an incidental question .
An incidental question properly so-called presumes the existence ot three facts. The
_
© main issue should under the ( English ) rules of private international law, be governed by a
_
foreign law. There should be a subsidjary question inyolvjng a foreign element which could
have arisen separately and which has its own independent choice of law rule. This choice of
law
rue should lead to a conclusion different from that which would have been reached hud
(D
^ the law governing the main question applied . Without these pre - requisites there is no
been
“ incidental question”.
The way in which the incidental question arises may be illustrated by the decisions
Lawrence v Lawrence, [1985] Fam 106 ( English decision ) and Schwebel v Ungar. ( 1963 ) 42
L) LR ( 2d ) 622 (Canadian decision ).
Lawrence V Lawrence.
'
ft c&
Facts:
The firsHiushandjind
his wife married in Brazil and lived there until 1970. In that
.
year the wife obtained a divorce in Nevada USA , which was not recognized in Brazil ; but the
next day she married the second husband in Nevada. Later, the second husband petitioned for
a declaration as to the validity of this second marriage.
An incidental question arose from the fact that , under Brazilian law, being that of the
wife’s domicile to which English choice of law rules referred capacity to marry, she lacked
capacity to marry' the second husband. On the other hand , the Nevada divorce was recognized
in England under English divorce recognition rules ( Recognition of Divorces and Legal
Separations Act 1971; now Family Law Act 1986, Part II ).
^
The Court of Appeal by a variety of reasoning, (upheld the validity of the second
^
marriage. The effect of this was to
expense of that of capacity to marry .
give ,
primacy to the divorce recognition issue at the
Schwebel v Ungar
, U>
^ ^
IQ
Th ,s decision a -<3)
— >rovidp^
^^
-**( onverso example of the incidental
Facts: ^ pr |h
2jjd 1vorce / recognition .
[ncsti n where the
.
A Jexyish husband
Qd vife, domiciled in Hungary , decided to
^^ settle in IsrncI . When
they were in Italy
n
-^^^- _
jsraeUhyuishand divorced his wife by “ ReC. Under
—
Hungarian law , the jaw
2!iheirdoinicilc. and under Italian law ihk was invalid hut it ,
\vas effective according
to Israeli
^
"
.»c » d ~ ami l >m They then acquired an Israeli domicile and whilst
dom
,
^ ^_
. efly the wifcjater visited Ontario
and married second husband who ultimately
petitionedthe Ontario Court for a _
decree of nullity cn thQ.gtautid.of_ his “ wife - s" bigamy.
,
The Canadian Court had not only to consider the question of the wife canacity to _
'
ilia try, governed under Ontario choice of rules by Israeli law, but also the question of the
validity of the wife’s divorce by “get”. Under the Ontario rules of private international law,
thg divorce would not be recognized but it would unde the kmelLmlgg. The Supreme Court
^
^
of Canada (upheld the validity of the second marr iage.) lt was . valid by the law of Israel , the -
law governing the capacity to marry, and this prevailed over the Ontario rule denying
recognition to the divorce. Here, capacity was ,
regarded as the main question, to which
divorce recognition was incidental.
Dcpccage
A - problem related to that of the incidental question Peking and Choosing)

is.that of (
rise to issues which involve
or depecagg. A case involving foreign elements may give
different choice of law rules .
_ - .
ifa husband and wife both domiciled inEngland .
^^
To take the simplest example
marriage mavJmeJoJKJgfoxed to
any dispute as validitv of their
English or —-
marry in France, then
cwn
,
~~
[ n facti if tlie dispute is as to thrjnrmal :
(<
,
validity pj liymajage ,
^ »
refettnce wiU ^^ wi ) 1 be dCtgfmiJ nren rHing to the English law as the antenuptial
^
oj ofjgPgE& .
dnmiciliaj
i
law of
^ the
\
to be analysed
the one general issue of the validity of marriage has
Here it is clear
arate sub
that
issues .-A similar_example i5-P _ in the law of the contract where
into two sep to govern different parts of theircontract

.
tn choose different laws
theparties are
—

H i- ©
laws or
In Ollier cases the question whether there are two issues referable to different
but one single issue is less easy to determine.
an_ iinjust and distorted

Although a failure to distinguish separate|ssyLes ma ,
^produce
resijjl /it might also he sajdjbat.the decision to pick and choose maybcmotivated by a dcsjre
U
^ avoidjhe application of a rule that jsjegarded as undesirable )
^ )
/
The mist commonly cited example relates to interspousal immunity in tot± If a
,
husband and wife, both domiciled in a foreign country, are involved.in.a.motor accident in
England in which theJiusband negligently injures. the- wife. this would be classified as a tort
problem to which the appropriate choice of law rules would be applied, pointing as a general
rule towards the application of English law, though with the possibility of this being
.
displaced in favour of the law of another country Let us assume, however, that although an
action will lie between husband and wife under English law, it .will not so lie under the law of
their domicile. Is it to be said that the question of interspousal immunity arising n a tort claim
is a tort issue or to adopt a more subtle categorization and suggest that the interspousal
immunity issue is a matter of status to be segregated from the tort context in which it arose
and be referred to the law of the domicile? ( Warren v Warren [ 1972] Qd R 386). The latter is
the better approach (Cheshire).
The problem can become more complex, as where the law of domicile would permit
'
the spouse to sue but, but its substantive tort rules would deny the wife recovery, for
example, because she was guilty of contributory negligence, whilst under the law governing
liability in tort a wife cannot sue her husband, apart from that, she has a good claim in tort. 1 f
, ,
_
one picks and chooses, then the law governing jhe ort issue may onjy be applied to .the.tort
.
questions of
issues of the wife’s claim, whilst the law of the domicile is applied to the
interspousal immunity. The result isjhat the wife can recover by picking and choosing
all issues,
d . fferent laws to govern different issues, though had any one law been applied to
she would have failed.

3
o
o
.
4 Renvoi
Application of ( lie lex causae: The Problem of Renvoi

'
o
^ cn an English Qourt refers an issue lo a foreign law it nearly always refers to the
.
icstic rules ol that law. In some instances, however, the court treats this reference to the
o
foreign law as a refereneejo thcconHict rules of that law. This is called
renvoi.
For example, in Ke 'Ross (1930), the testatrix, a British national , died domiciled in
_ _
Jtaly. Shejeft movable property. in.England and movablc and immoyable_propeity in Italy.
relation lo her English and Italian estates were valid by English domestic law of
succession, but inyajjdjbyjtalian dojtiestic law because she had not left half of the estates to
-o her son who contested the wills.
O
•
Under English conflict of laws, the essential validity of the wills was governed by
Italian law as law of the domicile . of the te ti-ix ( in relation to the movables), and the
lex
.
^
- 3 situs ( in relation to the immovables). Under Italian conflict of laws, this issue was
governed
English Court applied
by the domesticJaw of.the nationality of the testatrix. As a result, the
^
- 5
English domestic law and the wills were held to be valid.
Hence, the issue of renvoi arises when a rule of conflict of

laws refers to the Imv of a
have referred the question to
foreign country, but the conflict of the .foreign .countnovould
3 ion !, or the law of some other country Ue. .
the law ofthe first country. t.e., remiss
(
3
transmission ).
-O ( a ) Single orPartial Renvoi
Court accepts the reference hack from the-
single or Partial renvoi , the English
-3 i inHpr
country referred to bv the

English choice ofjaw-rule. For instance, if an
English Court is
-3 referred by its own choice

.
y X , but the choice of law
of law rules to the law of the countr “ ”
the English Court must apply its
-3 rules of “ X ” refers such case back to the English law then
adopted -ia. Some continental countries, but
-3 own domestic law to the « * -
•« «« : This form has heen .
it is not part nf F.
nglish law
-
,3 on )
Forgo’s case ( French Decisi
73
Forgo, a Bavar ian natio nal .
domic iled in France died intestate in France
leaving
the movable mopertiesjwere

-
Fn nrh Court had to decide how
5
"
movable pro ties thereof
£
s
to be distributed. According to French Private International Law, jhejaw. to be applied was
hiu or nationality, namely the Bavarian law
^
Bavarian law in what sense?
Bavarian law was taken in the wide sense of the whole law of Bavaria including
Bavarian Private International Law.
( Forgo was
illegitimate and under French law, collaterals would riot -succeed-to his
movable properties and so the properties would pass on to the French government; but tinder
Bavarian law, collaterals could succeed to the properties) .
According to Bavarian Private Interna
tional Law, succession to movables was _
governed by lex domicilii . So the Bavarian law
referred the question back to the French law .
This reference was accepted by the French Court nnH the French
law of succession was
applied, thus depriving the right of succession to Forgo
’s collateral relatives.
(b) Double Renvoi
• his is also known by the names of ‘Total renvoi or English

” doctrine of renvoi or the
.
ForeigpCou rtJheory. Under this double or total renvoi, the English Court which is referred
byJtjLCOnfjict rules to the foreign country, must apply
the law which a court in that foreign
_
country wfiuld.apply ifjLwere hearing the case. More
precisely it can be put that an English
Judge who is referred by his own law to a foreign system of
lawvshonld apply whatever law a
court in that foreign country would have applied if that courUve
.
re seized of the matter The
English judge is required to make an imaginary journey to the foreign
of that country .
.
land ar d sit in the court
The operation of this form of renvoi is illustrated in 8e hnes / ef ) _

^ '
Facts: The case was concerned with the validity of a will executed bv a woman named
,
Annesley. Anncsley was a British subject domiciled m

. .Francs at the time of her death. The
will she executed was valid by English law hut failed tn gntkt-y-the requirements of French
law.
I
Which law should be applied in deciding whether the will was valid or not? \

2)
Court held that French law should he applied . The indue reached that
_^
concluSiqnj -g |yjng foreign court theory. English Private
^ ^ International Law refers 1 the
JWe*tion ofyalidity of wjlls to the law of domicile. namcIv- FrcnclUaw -
^
llow would a French judge decide the question

?
J *c ^ oold find that according to the French law he. has to apply thcjiationalily. that is.
.
English law.Jn _other_words. the French judge

would find that he is referred to THEL English
law and the hnulish law refers the matter hack
tn the French Inw .
Foreign Court theory: Criticisms
This theory has enthusiastic supporters and detractors in England . 'Oicep strongly
supported this doctrine. But, Cheshire has voiced strong objections to . .
it Ir Cheshire’s view ,
this theoiy is “objectionable in principle, is based upon unconvincing authority and cannot be
said to represent the general rule of English law"
So far as English decisions are concerned there are decisions which expressly approve
the theory but according to Cheshire, these decisions are exceptions and can be confined to
certain areas. Cheshire maintains that as a rule when an English Court is referred by English
Private International Law to a foreitin system ol’ law ^ the court simply applies the internal law
of that legal system without bothering about its rules of Private International Law
-
Drawbacks of the Foreign Court theory
Cheshire points out the following objections to this theory:
( a) Foreign court theory doesfnopnecessarily assure uniform results. Uniform result will
^ be produced only if the theory is accepted by one country and rejected hv rhe other. 11'
Recognized by both , there will be an interminable reference forth and back, what
Cheshire calls “ International came of lawn tennis”.
b) Foreign court theory amounts to the complete surrender of the English .

rhoire r» f hm
t 1
rule. The effect of this theory is to substitute a foreign choice of law rule in preference
• to the English rule. The English rule is discarded/ since it does not meet with the
/
^ approYaljpf the foreign law maker.
jcFThc IbreigiLCOmt-docuine- is difficult to apply [his theory requires the F

,
. iu' lisli iud
> to ascertain what precisely will be done by the foreign judge. This
creates two serious
^
» IP

<T
^
-'
difficulties one is/ to ascertain whether partial renvoi iy accepted nr renudifttfli Pit * 1*-
foreign law . This is not an easy thing to do as it may be a controversial question and
the authorities and experts may not agree as to what actually is the position . Th£_
second difficulty is o ascertain the national law of the nropositiis)\ vhen the foreign
^ ^
law refersjjjg uestion to the natjonal law . In countries like England and America,
where there are several territorial systems of law within the same country, it is
meaningless to speak of national law.
Scope of this Theory'
Repypi ..applies to questions of (int estate

succession and essentiajkvalidity ol willj),
There is some authority to the ellect that it applies to (
^ ^
Pnarrjgge ) and that it should apply to
£ses inyolying PlejQjmmovable pro pert) . Renvoi does not, however, find a place in the
fields of contract or torL
,
'
,
In spite of the difficulties and inconsistencies involved in the application of the theory
of double renvoi, this doctrine was reiterated by the Privy Council in the case of Kolia e.
Nahas ([1941 ] 3 All E. R. 20) and also in the case of Re Full 's Estate (No. 3 ) ([ 1986] P 275.
[ 1965] 3 All E.R. 776).
Renvoi and Indian Law
Though there is no discussion of the theoretical basis of the decision, the Supreme
Court had clearly held the renvoi rule has no application in the field of contracts ( National
Thermal Power Corporation v. Singer Co., AIR 1993 SC 998).
-
The Supreme Court in Viswanathan (R) v. Riikun-ul Mulk Syed Abdul Wajid ( AIR
1963 SC I ) observed that every issue relating to lipmovable property is to be dealt with hy
.
the courts of the country where the property is situate, have the effect of ruling out the
application of renvoi in such cases.
S:Govindam v, Bbartj ( AIR 1964 Ker 244)
I 'nets: A an Indian went to England and staved for the period of 30 years lie had both
movable and immovable property situated in India as well as in England . He did not obtain
England so Indian domicile was still applicable . The property situated in
t|ie domicile of
Prcplnnd was sold after his death and the usufruct was deposited for the heirs in Indian Court.

2~S
In India, theC 1 |
P PC ty
laws of ii„»
feared
° amongst heirs is to be administered according to the personal
, noth movable and immovable properties «iiiunted in India were
distributed accnnim a to internal law
Indian courts accepted the doctrine of
renvoi regarding the immovable pronert \
siluated in Enghnd and administered amongst
^ ^ heirs according to lex situs, that is, English
law.

f' l \
i> v
•
Substance and Prorprlnr ..

One of the eternal truths of every system
of private international law is that a distinction must be
madebetween substance and procedure betweenjjght and remedv
,
.
substan t nghts of the parties to an action may be governed by foreign

^ a law, but all matters
pertaming to procedure are governed exclusively hv the h w of M e fnrnm . ( British Linen Co v.
Drummond ( 1830), De la Vega v. Vianna(1830) ) .
joyser .
| In a
I
matter not raising issues of conflict of laws, Lush LJ explains in
_ ^ v Minors)the
meaning of procedure “die mode of proceeding bv which a lean ) right < <; enforced , as
djgtipguished from The law which gives or defines the right and which, by means of the I
i
proceeding the Court is to administer the machinery as distinguished from the product.”
comprises many.rules that would be unintelligiblaiaflJbrejgn judge and certainly unworkable by

machinery designed on different lines. A party to litigation in England must take the law of
procedure as he finds it. He cannot by virtue of some rule in his own country enjoy greater
advantages than other parties here ; neither must he be deprived of any advantages that English
law may confer upon a litigant it* the particular form of action ( De la Vega v Vianna 1830).
Importance of distinction between substance and procedure
Although the principle is certain and universal, its application can give rise to .considerai
difficulty, especially when trying to establish a test by which procedural rule can be
distinguished from a substantive one. Unless the distinction is made with clear regard to the
^
underlying purpose of private international law, the inevitable result will be to defeat that
purpose. So intimate is the connection between substance and procedure that to treat an English
rule as procedural may defeat thepolicy which demands the application of a foreign .substantive
^
law. A glaring exanTple to this is afforded by sectign LoQhe statute.QLErauds, which formerly
^^
provided that ncTactSorTshould be brought on certain unless there were evidenced by a note or
• memorandum signed by the party to be charged or by his lawfully authorized agent.
Lcroux v. Brou n fi 852)

It was held that the provisions of the statutejirepj;oceduraL (L therefore, applicable to cnntMrfs
_ _ ^
governed bytjifprejgnjaw. The case concerned an oral contract of employment,.concluded in
EjLanc_e_bet,ween an English employer and a French employee, whose employment was to be in
..
France. This precontract was fojmally valid by French law. When the employee sued to enforce
th e contract in the English court, the employer relied on section 4 of the statute
of Frauds unde
which, because the employment was to last more than a year, “ no action shallbe brought^ upon ^
any agreement unless the agreement . . .or some memorandum or note thereof,
shall be in
writing, and signed by the party to be charged therewith ” .

* lCihj§ Statutory provision had been regarded as a_ rujc of formal validity,
_ it would not
have been applicable because the formal validity of the contract was governed
by French
Jaw.
Although this decision might, possibly, be based on an intelligible principle of domestic
law ,
it is repugnant to the principles on which English private international law
is founded . That
law exists to fulfil foreign rights, not to destroy them . Willes J attacked the decision
in two
later cases C Williams v. Wheeler 1860, Gibson v. Holland 1865 , and evidently thought
that
in the circumstances the statutory rule should not have been treated as procedural.
A
The Court of Bbmwe took a somewhat different approach in Monterosso Shipping
Co.
Lid. v. International Transport Workers ' Federation. Lord Denning MR observed that:
_
“ h seems to me that tbe true distinction is between the existence of a contract (which is
substantive law ) and the remedies for the breach of it (which is procedural law). The right
course is to analyse the statute and see whether it negates the existence of a contract or not. If
there is no contract, but the statute says it cannot be enforced (except in writing or within a
stipulated period ), that is procedural law. It is governed by lex fori . It should be borne in
mind that the issue whether a rule is one of substance or procedure may . arise in more than
one context. The most common context, as illustrated by Leronx v. Brown, is the
determination of the nature of a rule of English law in circumstances where the governing
_
law is foreign . lLlhe English rule is prQ&eduraLitTs ap.plied notwithstanding the foreign
- ,
governing law. If the English rule is substantive, it is ignored and . the_ foceign law appljed.
The problems can , however, arise in circumstances where, although the. applicable law is
foreign , there is some doubt as to whether the rules of that country’s law are procedural ( and
to_ be ignored in ErmlamlLatLSubstantive ( and to be_applicd in EnclandY (eg. Harding v.
Wealands [2007] 2 AC 1 ).
Chase iVlanJuptan BA NK NA v. Israel - British Bank ( London) Ltd ( 1981 ) C/» 105
The plaintiff, a New York bank , sought to trace and recover in equity 2 Million pounds, paid by
rrpcinke tnahe- accouni-of - the. defendant bank . The issue was whether the plaintiff hank
was
entitled totrace the proceeds. Although the court held that there was no significant difference
between the two relevant laws, English and New York Law, on the to trace. Goulding J asked the
~
question- “ Whether the equitable righf of a person who pays money by mistake to trace and
claim such money under the law of New York is conferred by substantive law or is of a merely
procedural character. He concluded thatjhe view of an English Court . Would be that the New
York Bank had , under the New York law, an equitable interest as a Cestue Que trust which was
substantive in nature.
• Why did the judge ask the question as to the nature of the equitable right to trace?
Presumably , because if he baud found the New York rule to be procedural , he would
i \ England .
have been unwilling to apply it |

IV>
Tolofson v. Jcnsc (cananda ) and Lucas v. Gagon

_
The supreme CouctJield that when a court is considering a foreignjgvv»
it shouldjjcjegar
as procedural when it was clear hpvnnd doubt that it was procedural and
jphere exist any
doubt it should be considered as substantive.
is not
The older approach of England to give a wide interpretation to the term procedural
followed now. The law ip England today has been altered by the statute to a considerable
extent , the Contracts ( Applicable Laws) Act , 1990 , which gave effect in England to Rome
Convention of the Law Applicable to the Contractual obligations 1980, provides.that not ,
only the interpretation of a contract , but the assessment of damages for its breach, and the
applicable presumption would be governed by lex causae . Foreign Limitation Period
Act 198 -1, under which generally, unless contrary to public policy, the llimitation rule of lex
~ f )
causae willjbe followed^
Particular Issue
Generally under English law all the routine matters arising in the successive stages of
litigation must be governed as being the law .of forum , for e.g. service of process,
competency of witness, questions as to admissibility of evidence and the burden of proof etc.
It is necessary to consider separately certain issues whose classification as - subor&nate or

procedural raises difficulties. The following are some of the particular issues - limitation ,
evidence, parties, nature and extent ofjemedv. damages, judgments in foreign currency and
execution. Out of which discussion is made here in the issues -^limitation and parties. >
Limitation
England law distinguishes to\J kjnds of statute ef limitation, those wJnch.mereJy.bar a I

remedy and those which extinguish.a , r\shl (Philips v. Eyre, 1870). Statute of former kind is
'
procedural , while statute of latter kind is substantive. In general , the English law as to <
limitation of action had been as procedural ( Williams V. Jones) but section 3( , 17 and
27 »
25(3) of the limitation act 1980 are probably substantive since they expressly extinguish the
title of the former owner.
f
Sometimes a statute creates an entirely new right of action unknown to the common law and
t
at the same time imposes a shorter period of limitation than that applicable under the general
.
. law. E.g. Civil Liability (Contribution ) Act 1978
«
e

L
Sec. I of the act states

that where a person becomes entitled to a right to recove
contribution, it can be enforced within a r
limitation period of two years. At common law the
English Courts used the same distinc
tion between right and remedy in characterizing foreign
statute of limitation.
The Foreign Limitation Period Act 1984
It adopts tlie general pnnciple ubject to _ t —

_ an exception based on public policy that the
^
. ^
limitation rules of the lex causae are to be applied in actions in England. The act provides
that they must be deemed to conflict with
public policy Af their application would cause
under hardship to a party. English limitation
rules are not to be applied unless English law is
the lex causae. The applicable provision of the foreign
lex causae is defined to include both
procedural and substantive rules with
respect to a limitation period.1
English law as the lex fori does however determ

ine whether and the time at which
proceeding have been commenced within the time limit.
-
Under the Contracts. ( Applicable Laws) Act 19902, the lex causae
governs both the question
of limitation and prescription. These rules of the lex causae can only
be excluded if they are
.
formed to be manifestly contrary to public policy After the enactment
of these laws, English
courts have applied the rules of limitation of the lex cause /
fe
Case - ,(No. 11 (1996) 1 LI Rep 589 CCA.)

[ Statutory changes]
The decision of the Court of Appeal is instructive in this regard. This is a case
in which law
of Abu Dhabi was applied and held the suit was maintainable.. The suit
was based on
contract. Under that law the claim was not time-barred To give effect to the European
.
Community Convention on the Law Applicable to contractual Obligation
(1980) the ECA
was enacted. The 1984 act broadened the common law approach which
favored the
application of the domestic law of limitation .
.
Lmt (liniitation) of Action in India
In India, our courts have generally taken the view _tbat limitation only bares the remed
y
except in cases where the rule of prescription applies as when, if the time for an owner of
.
i
,
I
1
Sec sec. 4 of the Foreign I ml. Period Act 1984. <
"
Herein afterward ECA . I
) i
i

—
<2 «
G
c
is extinguished .
3
<
?n rSSflHSEfc•* ">
SSSSi
.
limitation
_ ^
The Sypieme Court. has - reiterated the distinction between the rules of limitation . Which
merely bar the remedy and the rules which extinguish the right , and observed that the lor mer
{
are procedural in character. - syndicate Bank V . Prabha D Nayak
As far as suit on contracts entered into outside 1 ndja aregconcerned , it is provided at sy t
rule of limitation i the country where the contract was entered into would be defense to a
. ^ £
^
contracts would be governed by the period of limitation. Prescribed under the act , and that no
suitjn India [s U ] velji Bharmal v . Samji Po a AIR 1952 Kuch 27. The discretion of courts
in India is thereof restricted. '
.
Article 112 of the schedule to the limitation. Act, 1963 provides that, the period of Imt ' .
( Except in the case of the exercise of the original jurisdiction of the Supreme Court ) Jfor the
suit filed by either the central or state govt , including the state of J & K. would be 30 years)
Lmt. (limitation ) Prescribed by local or Special Laws
Various-Acts. prescribed different rules of limitation , In specified situation and May also
provides that a suit should not be maintained unless notice of the proposed suit cet is ixJ) "'
_
maintainable unless notice of the proposed suit js giy.en-earliej; for e.g. Sec. 80 of CPC 1908.
It may be said that these provisions would apply if suits are filed in India.
Other statute prescribed special rules which are likely to involve a foreign element: include
the carriage by Air Act 1972 (which implements Warsaw convention and The Hague
protocol relating to carriage by air prescribed a period of limitation.
_
two yearl/Carrier's
act 1865 merchant shipping act 1958 and multimodal transportation qr goods act 1993
provides that a notice of loss is to be given within a specified period before filing a suit. The
rules prescribed under these laws must be followed , if a suit comes within the ambit of these
laws as these being special rules would preyaUgyer the general provisions .
Parties
_
It is for the lexJqri.lo determine whojhe proper parties, to the proceedings are Where
,
- .
whether a political party has legal personality , the English
however the question turns on
_ ,
i
court will accept the view onheJaw
S 27 of the limitation
act. 1963.
^
onhe coun in which the entity is established. A

09 h
business association created under Swiss law and

_ having ( though as a partnership it would
have such personality I English Law) legal personality under that law has been entitled to sue
J England ( (Oxnard Financing S.A v. Rahu ) 1998 I WLR 1465]. An Indian temple was also
held to be competent clamant. [ Dumper development Corp. v. Comm. Of Police for the
Metropolis 1991 1 WLR 1362 ]. The question needs to be considered in connection with the
identity of the parties to the action . The first is the determination of the appropriate person to
^
sue and the second concerns the identity of the person to be sued.
Proper Claimant
The first question is whether the name in which an action may be brought falls to be determined
exclusively.by the law of the forum on the ground that it is a mere matter of procedure. It is a
question that arises principally where the claimant is not the original owner of the subject matter
of the dispute, but has acquired it derivatively from the original owner, as for instance, in the
case of assignment of a debt or other intangible movable. In those cases where English Jaw
requires the assignee,to
,
_sue in the name of the been said ( Wolf v. Oxholm
assignor, it has
( 1817)) and indeed on one occasion held (Jeffery v. M ’taggart (1817)) that the requirement must
be observed in an action in this country ( England ), even though it is not necessary by the law
governing the transaction.
But on principle it is doubtful whether every rule that regulates the name in which an action must
be brought is merely procedural in character. Cheshire expresses his view that if for instance,
English law still regarded a contractual right as so essentially personal as to be actionable only at
_ .
the suit of the original contracting party, it would surelybenegationofiustice to enforce such a ,
rule; indiscriminately as being one of procedure,.and thus to defeat a claimant who had acquired a
contractual right derivatively under some legal system that regarded the transaction as valid.
One problem which can arise in determining who is a proper claimant is whether a person will be
permitted to sue in England in a representative capacity, relying on an appointment made under
•
foreign law.
Ltd 11980 013 1991
In this case Parker J refused to recognize his title to sue.

3°
Facts: The plaintiff was Lebanese. Because his brother had disappeared , he caused himself jo be
aggoimecLb a.courl in Beirut as his brother s judjciaLadmjnjstrator”. lcuhaLcapacity, he
^ ’ “ _
- _
sought to bring an action in F ngland on coiitract made between his brother and the defendants.
Justice Parker observed that, in such cases, there are conflicting principles to be examined: first,
that these courts should as a matter of comity, give effect to curator’s or tuteur’s right under
foreign law to sue in his own name; secondly, that municipal procedure should be applied . The
first principle prevails in the case of bankruptcy, receivership and the curatorsliip of the mentally
ill ; whilst the second holds sway in respect of an administrator of the property of a deceased or
absent person.
The appropriate defendant
The second question relates to the party sued. It has to

be decided whether a foreign rule
determining the identity of the party to be sued , or prescribing the
order in which parties must . be
sued , is one of substance or procedure.
In some foreign systems of law a defendant cannot be sued first .
For instance, in some foreign
systems a creditor cannot sue an individual partner without first
suing the firm and exhausting its
assets, or cannot sue a surety without first suing the principal debtor Such
. rules are in sharp
contrast to the rule of English law that any partner may be sued
alone for the whole of the
partnership debts, and that a surety may be sued without joining the
principal debtor. The
question is whether such a rule of foreign law is substantive
or procedural . If.the lex causae
regards the defendant as under no liability whatevemnless Qther person
- s are sued first, the rule is
substantive and must be appliedjnJ gHsh.pwceedings [General Steam
_ ^
Guillou ( 1843)]. If onjhe gther hand the lex causae regards the defend
Navigation
ant as liable but makes
,
Co. v.
the defendants’ liability conditional on other persons being

__
and is igaored-in Rnglish- proceedings.
sued first, then the rule is procedural
Ind jan position: Generally, who are proper

parties in a suit in India and in which cases a suit
" -
otiId fail for a non joinder of necessary parties
would always be determined by the lex fori.
I hese are laid down under CPC.
Under Indian law. a partnership can sue or be sued, at the
I Scanned with CamScanner

3) t
options of the plaintiff either in the name of the firm and by or againsl _all _ the partners
individually. ( As per 69 of the Indian Partnership Act, 1932, a firm which is not duly registered
cannot sue). The same rule applies if a suit is filed against the individual partners of a foreign
firm .
>
3
3
3
3
3
3
3
3
-3
'

. • e c
c
Proof of Foreign Ln \v <
Question nffî
<
Points or relevant foreign law should be proved by the parties. They arc treated as questions
QPg£U-g nscqucntly they should be pleaded and proved to the satisfaction of the judgec as
°
_ "
<By 9ther fact. The onus licsonTlic party who wishes to rely on a foreign law. He must state <
it in his pleadings and prove it at the trial by adducing evidence. If he docs not do so, the <
court will decide the case as it were a purely domestic ease.
<
As a rule, appellate courts will not disturb the findings of the fact by the trial judge, but this is
not so when the finding relates to a question of foreign law. I
Parkasho v. Singh (1968)- In this ease the erroneous decision given by the trial court on a
point of foreign law was reversed and it
was stated , “although the foreign law is a question of
Joel, it ;s a question ofjgct of peculiar kind. ”
_
Under English Law,.foreign law is treated as a question of fact of which the jiyige has no
judicial knowledge. It must be proved by •appropriate evidence*, i.e., by property qualified,
wjtnegg.’ An exception, however, applies in relation to Scottish Law. ( it docs not have to be
proved in the House of Lords, as the common forum of both England and Scotland, for their
lordship have judicial knowledge of Scottish Law)( Now the Supreme Court of England is
established ). In this context it is also to be mentioned here the British Law Ascertainment
Act,1859. As per this act ifthe foreign law involvedis ihe.law of “some british territory”, the
,
courLlias- the- powcr of ascertaining that law and applying it, although it has not been pleaded
orproved by.the parties.
Under English Law, foreignjaw must be proved by expert evidence. It cannot be proved by
.
simply placing the text of the foreign law before the court or by citing foreign decisions or
foreign text books. These can be done only by an expert witness, as part of his evidence, and
subject to the cross examination by the opposite party. The court can evaluate and interpret
the text of a foreign law or a foreign decision or the opinion of an academician only with the
assistance of an expert giving evidence before the court. When the judgements in the foreign
country in question conflict and there is no decision regarded as binding in that country, the
English court has to choose between them ( Re Duke of Wellington (1947) Ch.506).
fVho is competent witness?
No clear cut answer can be found from thejmglislid&cisions . The general principle is that r.o
person! is a competent witness unless he is a practising lawyer in the particular legal system
or unless he follows a calling in which he must necessarily acquire a practical working
knowledge of the foreign law . Practical experience would be a sufficient qualification. Thus,
not only a foreign judge or legal practitioner would be a competent witness, but also such
persons as anAmbassador and Embassy official , a reader in law, a Roman Catholic.Bishop
,
have been held to be competent . _

Position In India:
The proof of foreign law is provided forllhc Evidence Act 1872. Section 38 of Ihis act
.
provides Ihj\Lany official publication of a foreign country containing its laws or law reports
_ _
^ ^ j
adinittcd in cyidcncc. Section 45 providcs-thaLexpcrt evidence can be led on what Jhe
_
I? £OJftW..in.a givcn cnscjs; Under section 45, a person who is “specially skilled ” can be
give expert evidence on a subject. The flexibility of the language gives considerable latitude
to a court to decide who can be regarded as an expert. Under section 78, “ public documents”
include the legislative acts of any country. Under section 81, a court can presume to be
genuine official copies of British Parliamentary Statutes.
In a matter under section 45 of the Arbitration and Conciliation Act 1996, theJSupreme Court
held that Japanese lawxouldnoLbe.proved.bv affidavit eyjdencefcand evidencejhouldbie led ^
as in a trial. (Shin Etsu Chemical Co. Ltd v Aksh Optifibre Ltd, AIR 2005 SC 3766).
Both High Courts and the Supreme Court have often referred to decisions of English,
Australian.ancLAmerican Courts to set out the positions in the laws in those countries; this
has been done not in eases where foreign law was required to be proved as a fact in a private
dispute but as such decisions were of persuasive authority in applying Indian Law. Generally
this has been done in constitutional law and administrative law cases, and has also been done
in cases where bur statutes are based on the common law, or are similar to English statutes.
No such cases raise any issues of Conflict of Laws, jf a question of conflict of laws does
arise, expert evidence is to be produced . (Technip S.A v. SMS Holding (Pvt.) Ltd
. (2005) 5
SCC 465.)
1»
>
I

S
^ r <x y'
<
21-
*>3
Exclusion of foreign i:nv
In any system of conflict of laws including Indian system, the courts retain an overriding
power to_ refuse to enforce, and sometimes even refuse to recognise, rights acquired under
foreign law on grounds of public policy. The scope and extent of exclusion of foreign la w
varies from country to country. In countries following the constitutional system of law what
is excluded is what offends the domestic law notion of public welfare by applying the
^
doctrine of ‘order public’. The scope of order public is wider than that of public policy in
English law. Probably because of English courts invariably apply English domestic law in
many types of family proceedings such as those involving divorce, maintenance or the care or
adoption of children. Thus, foreign law is inapplicable in many important departments of
family law and in continental European countries, it is frequently excluded on the grounds of
‘public policy’. The danger of this vague doctrine is that it may be interpreted to embrace
such a multitude of domestic rule as to provide of a fatally easy excuse for the application of
the law of the forum and thus to defeat the underlying purpose of private international law.
Tire analogues English doctrine, though less unruly is indeed all above suspicion in this
respect.
Summarily stated, it withholds all recognition from any foreign law or judgment which is
repugnant to the distinctive policy of the English law, and it refuses to enforce any foreign
law which is of .penal, revenue or against ‘order public’ law nature. Further more
foreign
in other circumstances,
expropriatory laws will in some circumstances, not be recognis and
ed
ry rules of the forum may be
although recognises will not be enforced. Finally the mandato
law is excluded.
applied, with the result that, to that extent a foreign
_
The nature and scope of the public policy doctrine
was fully examined in the case of Kuwait
Airways Corpn. V. Iraq Airways Co. 2002

.
UIvHL 19 The case concerned the. seizure by
the Iragi invasion of Kuwait in 1990, of aircraft
the Iraqi Govt, in the immediate aftermath of
belomJng to the claimant company, and the effect of
an Iraqi govj, resolution transforming
of the aircraft to the defenda nt. Lord Nichol as described the norma working of
’
the owners hip
application of the laws of another country even
the conflict of laws, which often leads to the the
those laws are differen t from the laws of the forum. It was overwhelmingly
though
can never be required of an English court
normal position, but blind adherence to foreign law
foreign law will be disregarded when
and continued “exceptionally and rarely, ajirovision of

V
3« r
_
^
- ,
fumlnmcnlal requirements of justice ns administered by
Ll?'r§i]lt ivhol] n|ic|j
^ [Q
C.burl . A result of this character would be ncccptnblc to English Court . In the
entional phraseology, such a result would be contrary to public policy then the courts
beeline to enforce or recognise the foreign decree to whatever extent is required in the
circumstances.
In English domestic law it is now well settled that the doctrine of public policy should be
only be invoked on clear eases in which the harm to the public is substantially incontestable,
and does not depend upon the idiosyncratic inferences of a few judicial minds.. In the conflict
of law’s it is even more necessary that the doctrine should be kept within proper limits,
otherwise the whole basis of the system is liable to be frustrated. It is note worthy to mention
here that view of Justice Cardozo, that the courts arc not free to enforce foreign rights at the
pleasure of the judges, or to suit the individual notions of expediency or fairness. They do not
cloic their doors unless it would violate some fundamental principles of justice, some
prevalent conception of good morals some deep rooted tradition of the common weal.
Instances where fundamental policy is infringed
1. When fundamental principle of English justice is[ disregarded, c.g. violation of

the
party to
principles of natural justice is that no opportunity was given to the other
present his case.
.
2 When English conceptions of morality arc infring -
ed. E.g. a ^contract or some other
money to a prostitute
transaction which promotes sexual immoralitya contract to pay
as the price of prostitution etc .
good relations with foreign powers are affected, c.g. a
.
3 When the interest of UK or its
_ _
_
contract to gay money for revoluUpnary activity iiLa.&ien
(Uy country or a contract to
laws of friendly foreign country or a

import liquor in violation of the prohibition
contract to export prohibited commodity etc.
.
4 A gross infringement of human rights
. E.g. A german decree during the Nazi era
and consequentially leading to
depriving Jewish emigrants of their German nationality
constitutes so grave an infringement of
the confestication of their property which
to refuse to recognise it a law at all. Now a
human rights that the English Courts ought
protec ted under the European Convention on human Rights . In
day’s human rights are
to
rights has been used to cast light on public policy defence
recent years human
judgment.
recognise and enforcement of foreign

•3 '
IS
.
5 English courts will r <"; lt nf aiw slalu* cx irinl! un < <
" ° ° ‘
_
l !r a f re en la
and the
which is penal, j.c, discriminatory, c.g. the status of slavery or civil death
, Jews,
disability or incapacities which may be imposed on priests, nuns, Protestants
persons of alien nationality, person of certain ethnics groups and divorced persons
.
g.
Some of the disability or incapacity is obviously impose as a punishment. E.
Inability under some system of person divorced for adultery to remarry while the
innocent spouse remains single.
Foreign penal laws
It is an obvious principle that an act of sovereignty by one state cannot have any effect in the
territory of another state. The jpfliction. of penalty normally indicates the exercise of
sovereign power. Consequently, English Courts will not directly or indirectly enforce foreign
penal laws. It is necessary to bear in mind that a penal law in this context means a criminal
law imposing a penalty recoverable at the instance of a state or its duly authorised agent and
in the matter of classification, it is for the English court to decide according to its own
interpretation whether the foreign law in question is penal or not in character. It is not bound
by any different interpretation which may be placed by the; foreign law.
Huntington v. Atrill 1893 AC 150; PC
In this case the rule ‘the courts do not recognise penal law * was explained. The rule is ...
founded on the well recognised principle that crimes including all breaches of public law
punishable bv.pecuniary or otherwise, at the instance of the state govt , are local in this sense
that they are only cognisable jmd punishable in the country where they were committed.
Accordingly no proceeding, even in the shape of civilsuit, which has for its object the
enforcement by the state, whether directly or indirectly, of punishment imposed for such
breaches by the lex fori , ought to be admitted in the courts of another country.
Although this principle is almost universally accepted , modem state practice requires some
qualification of its more expansive formulations. There are a growing number of international
treaties under which states including UK, provide jnutual assistance in the conduct of
criminal prosecutions. For example, compulsory measures available under the laws of one
state may be exercised at the request of a foreign state to search and seize evidence or to

3^
4
freeze and con fi/s icatc the
^ profits of drug trafficking. International
reflected in English l aw n legislation
• such as
practice of such type is
crime (international Cooperation) Act 2003.
Huntington v. Atrill, the court held that New York Cptirt is
nolpenal but remedial in nature.
By provision of a New
York statute the director of a company were personally liable for
debts contracted by the company upon proof that false report of its financial conditions
been published. Sums so recovered were payable to the creditors in satisfaction of thj
The defendant was the director of a New York Company he had signed a certifjcal Mdueh
£-
Stated falsely that he whole of its capital stocks had been paid up. The plaintiff who had lent
— .
_ _ _ _
money .to the company.sued the defendant- for. the. recovery of. the.loan and obtained a
„
-
judgment. As the judgment remained unsatisfied, the plaintiff brought an action on it in
Ontario. The defence was that the New York law under which the New York judgment was
obtained was penal in nature and hence Ontario court could not enforce the judgment. In
support of this defence, reliance were placed on the fact that the New York Courts had
interpreted the above
^^ ^ ^ ^^ ^ ^
tute penql T e Priv ounci affimied he jmnciple that foreign
~
penal laws|are not bound by the view taken by foreign courts as to ~the~nature of law in
question. Whether the foreign law is penal ofeggt in character is 5»Mo be decided by the
English Court<,The Privy Council analysed the NewYork statute and held . that the statute was
not penal but remedial only.
Banco DeV
âyayspon Alfonso De Borbon Austria
In this case the foreign law was considered as penal and was refused enforcement in England,
-
Facts the King of Spain deposited certain securities with the West Minister Bank in
London. The king was expelled and a new Spanish republican^ govt , decreed that all.his
^
^
properties and rights, were ever situated should be confisticated and seized for the benefit of
Spanish state. In pursuance of this decree an action was brought in an English court by a
nominee of the state to recover the security from a bank. The action was dismissed holding
the Spanish decree tp.be penal in character.
AG of NEWZEALAND v. ORTIZ 1984 AC 1

This is a more recent case on the question of enforcement of the foreign penal law
. Lord
Denning regard a nwzeland statute as coming within the category of
public law father a penal
law. Facts - A maori carved door was removed from

newzeland without !, emission of the
for
SiSSSi “
appropriate authorities and jms
^
35
London. The attorney general of Newzeland alleged that the state was the owner of the door
,
and sought ah injunction in th Fn lish courts restraining the sale.

^ and. an ordered for delivery
^
°X ^^ -
£. 5P.r The basis of this claim was the newzeland statute which, in certain circumstances
provided for the forfeiture, without compensation of historic articles.
In thiscase at the first
instance judgment was given in favour of the plaintiff. The court of Appeal allowed an appeal
on the basis of the point of construction of the statute. It was held that statue only provided
the forfeiture of the historic article when the goods has been ceased by the appropriate
newzeland authorities and this has not happen dint he present case. But the court of appeal
_
went on to discuss the wider points of the nature of the newzealnd statute. It was held that
_
ne\yzeland.statute.,was a penal law and therdbre would not be enforced in England The
^
claim was made by the attorney general on behalf of the state. The cause of action concerned
a public right. The preservation of historic article with the govt, and vindication of the right
was sought through forfeiture of the article without compensation. As already stated above
lord Denning expressed himself in different terms he regarded the newzeland statute as
coming within the category of public law rather than penal law.
In this case the decision of court of appeal was upheld on the narrow point of construction o f
statute.
'
Foreign revenue laws '"y ‘ '
.
Lord Mansfield stated in the case of the holsman v Jhonson 1775
No epuntry even take notice of the revenue laws of another. Since then it was assumed that
English courts will not enforce foreign revenue laws .in this case the court was not directly
concerned with the case of foreign power swing in English court to recove: revenue. Doubts
were raised as to whether the principle would be accepted by the higher court in the modem
conditions. All such doubts had been put at rest by the decision of the House of Eafi!r | n/
Gov. Of India v. Taylor 1955. uUhis case the Govt. Of India claimed from a liquidator in
England a large sum of money due as capital gain tax under the following circumstances. The
Delhi electric company limited was a company incorporated in England but carrying on
business in India. In 1947 the company sold its business to the govt, of India the sale price
_j
\vas >ay/to the comp. In India and the amount was remitted to England after a few days. 2
__
year after this the company went into voluntary liquidation in England Taylor was appointed

6
at r'
^ °
^
c liquidator proceeding the Indian commissioner of income tax claims
l
_ _
""
j .5 lac. Of rupee duc ' to GOl as capital gain tax on the sale of company bus .
,
. incss
,
dator rejected this claim. House of lord held that for the goi
~ .
It was contended that the
of exclusion of foreign laws properly
applied only on penal laws and it was wrong to
extend it to revenue laws further whatever may have
been the rule in the past , there is
necessity for modification in the ease of the country belonging to the commonwealth ,
particularly in the case of taxes similar to those imposed in England . These arguments were
not accepted by House of Lords. It was unanimously held that the English courts will not
enforce the revenue law of other country. Tax gathering is not a matter of contract but of
authority and administration a:; between the state and those within its jurisdiction and it is
settled principle that English courts refuse to enforce any claim which in their view is a
manifestation of a foreign state sovereign authority.
A foreign revenue law is a law requiring a non contractual payment of money to the state or
-
some department or sub division thereof. It includes income tax, capital gain tax, custoih
duty, death duty, local rates or council tax, compulsory contribution to a state insurance
scheme and a profits levy. English courts will not enforce foreign revenue laws either directly
or indirectly. Where no enforcement either direct or indirect arises foreign revenue laws arc
freely recognised in spite of Lord Mansfield claim.
^" •
Foreign Expropriatory legislation >
^
To what extent foreign laws of expropriatory nature will be recognised by English courts is a
question one will find discussed in public international laws. Such laws are not directed
against a particular person as in Don Alfonsos case, but are general in nature exploring all
private properties to the state .
In determining the effect of a foreign expropriatory legislation, the English judge will look
into three factors, namely
(1) The interpretation o fjoreignjegislation.

(2) The situs of property at the time of legislation
(3) The question whether the foreign sovereign wasjn ctual possessionorcontrolôjfthe^
^
territories of the foreign state, the expropriatory law will
properties situated within the
I
be recognised and given effect to in England, althoughJhe propertyjn
^
question wa:t

%°f -J
later brought to England and was there during litigation. This is thgjrositignjaken
in
the important case of Luther v. Sagor.
But a foreign expropriatory law cai lot affect the ownership of properties in England at
the time of foreign legislation. I
Under a decree of nationalisation the society authorities seized plaintiffs timber which
,
was situated in Russia. Part of this timber was later brought to England and sold to the
defendant by a soviet agent. The plaintiff sued in England on the basis that the ownership
of the timber now in England was vested in him despite the Russian_ decree of
nationalisation. The court of Appeal rejected the plaintiff claim. Court, even where
In case of ‘ the rose mary case’ - Anglo Iranian Oil Co. V. Jaffrate 1953 1 WLR 246Jt
was held that the decision in Luther v. Sagor is not applicable toJthe confistication of the
properties belonging to an alien unless adequate compensation is paid.
Mandatory Rules - lu/>L 7* ^^

The concept of mandatory rules has only recently been introduced into English law.
Mandatory rules of the forum have been described as domestic rule which are regarded as
£0 important that as a matter of construction or policy they must apply in any action
before a court, even where the issues are in privilege governed by a foreign law selected
by a choice of law rules. The statutory and EC rules on choice of law in respect of trusts,
contracts and torts all have rules providing for the application of the mandatory rules of
the forum.
An example of English mandatory rules is provided by the controls on exemption clauses

contained in the unfair contractjeims fret 1977. The
fet
itself stipulates that in certain
chcumstaqcesJhese,controls jsbalLaPPly despite the parties choice of a foreign
law to
govern the contract. The concept of mandatory rules is a positive one, the concemTs
to
apj)ly particular domestic rules where the concern is that a foreign rule should not be
.
applied, and i.e. they are negative concepts. However the effect of the application of
mjmdatoryjules j)f. EnglishJ aw.is that fl.foreign domestic law, which would otherwise
govern under choice of law rules, is hot applied . To that
extent application of mandatory
regarded as an exclusionary concent. At the same time and this brings out the
essentially different nature
concern is to apply the mandatory rules of a foreign country, rather than those of the

lift I
forum. The statutory rules on choice of law for trusts and contracts provide for the
application of foreign
mandatory rules. Naturally, under the particular provisions it is not
a case of the exclusion of a foreign law, but of its application.
^
Exclusion of foreign law - Indian Approach ^ Uw

The principle that no court would enforce a foreign law or a judgment is doing so would
violate its concepts of public policy is also being followed in
. . .
Indian .
Renu Sagar Power
Co Ltd. V General Electric Co Technip SA v SMS Holding (Pvt Ltd) the Supreme
.
^
Court adopted the-same rule of English law.
.
L Renu Sagar case AIR 1994 SC 860
SAV
r
UCT 0 > L (L *
(
Indian Supreme Court has observed generally that.foreign revenue.laws would not be
,,
enforced. - Viswanathan R v. Ruknasd - ul - Mulk syed Abdu l Wazid AIR 1963 SC
*•) ^ ^

Qi
Domicile , Nationality and Residence
In England and most common law jurisdictions, the concept of domicile

is adopted to determine an individual’s personnel law. Personal ]aw may be_ _
defined ns the law of the country to which a person primarily belongs ,
especially for the purposes of many matters of family law and succession . In
other words, the personal law of an individual determines such matters as :
( 1) the essential validity of a marriage;
(2) the effect of marriage on the proprietary rights of husband and wife; C:>J
i
(3) wills of movables and succession to movables;
Sr-O
(4) Jurisdiction in divorce and nullity of marriage , and to a certain extent
, legitimacy of children and adoption etc .
!
For the purpose of the above matters, England regards the concept of *vs>
domicile as the decisive factor. In contrast, civil law jurisdictions regard
nationality as the decisive factor to determine an individual’s personal law.
This will create problems of Renvoi !r>
2A For instance in Re O' Keefe ( 1940) , where Miss O' Keefe , a British subject
of Irish origin , died intestate and domiciled in Italy. By English law the
distribution of her estate, which consisted of movable property, was subject to
X\ \
the law of her domicile, i.e., Itaty By Italian lav/, however, this was subject to
the law of her nationality which was British. Accordingly , it was held that the
> only part of the British empire, to which she could be said to have belonged , ^35 )
> was the part from which she had originated , namely Ireland. Therefore, Renvoi
> applied and her estate was distributed according to the law of Ireland.
)
In order to circumvent this problem of conflict between nationality and
> domicile, th concent of Habitual Residence has been selected as the decisive
"
b
b
h ?
Cr
b A

U 2-
_ _
fector to
_ _
ja\y in a number of international
conventions seeking to regulate issues of family law, in particular recognition of
divorces. An example of such conventions is the Hague Conventionjm Private
_
Il3ternational law which refers _ to habitual residence rather than domicile nr
nationality. Habitual Residence has also been used by the British Parliament in
various Acts, such as Sec 46(1) ( b) of the Family Law Act 1986 which provides
that a foreign divorce is recognized in England if it is effective under the law of
the country where it was obtained , and if at the date of the commencement of
the proceedings, either party to the marriage was habitually resident or
domiciled in , or was a national of that country
As to the meaning of the habitual residence, it was described by the

English court in Cruse Vs ChittumJ1974) where it was held that habitual.,
residence for the proposes of Sec 3 of the Recognition of Divorces and Legal
separations Act 1971 (now sec 46 of the Family Law Act 1986) meant ‘a regular
physical presence which must endure for some time’. It meant ‘something more
than ordinary residence something less than domicile’.
The concept of domicile is not uniform thorough out the world. To the
.
continental lawyer It means habitual residence , but in English Law it is
regarded as a person's permanent home. What this in fact means is not clear.
Lord Cranworth, in the case of Whicker v Hume (1858) , declined to clarify this
notion and said " if you do not understand your permanent home, I' m
afraid that no illustration drawn from foreign writers or foreign languages will
very much help you to it ".
The .meaning and definition of domicile were elucidated by the private

International law Committee in its first report in 1954 as follows:
\_ J "A person' sdomicile may be defined as meaning the country ( in the sense
territorial unit possessing its own system of law) in which he has his home and
a
intends toJive, .permanently. The law regards every personal as having
,
on him at
domicile, whether it be the domicile of origin which the law confers
2-

k»
I U3 0
acquire. The two

birth , or the domicile of choice which he may subsequently
requisites for the acquisition of a fresh domicile are ( 1) residence
.and ( 2 )
, .
be present 's
intention to remain permanently , and both these elements must
before a new domicile can be acquired . If a person , having acquired
a domicile *
regards his
of choice, abandons it without acquiring a fresh one, the Jaw ^ acquired ,
of choice is
domicile of origin as having revived
_
until a fresh domicile
". %
_ D _
even though he may never in fact have returned to his domicile of origin
is the
%
There are three types of domicile, the domicile j6f origiri . that
domicile which a person acquires at birth; the domicile of Choice; which
person of full age acquires by residing in a country other than that of his
qr her
a
*%w
origin , with the intention of settling there permanently; and the domicile ^
of
dependency which a person has by virtue of being dependent, generally a child *

under the age of 16 who has a domicile dependent cm that of father _
if
legitimate, and on that of the mother if illegitimate. Before considering these
,
w
three types of domicile it is important to note here the case Re Martin (1900).
tv
In this it was held that an individual’s domicile must be determined by English
law “ according to those principles applicable to domicile which are recognized
in this country (England ) and are part of its law". An exception to this rule may
_
be found in Sec 46 (5) of the Family Law Act 1986 which refers to domicile in a .
country in the context of that country's law.

*0’
Domicile of origin
The domicile of origin is the domicile a person acquires at birth , and

remains with that person thereafter until it is replaced by a domicile of
dependency or domicile of choice ( Bell vs Kennedy (1868) . The domicile of &
>
origin revives in the absence of any other domicile on the relevant day.
Hence, according to the House of Lords in Undy v Undy ( 1869 ) , “ no &

>
) person shall be without a domicile , and to secure this result the law
attributes
&
to every individual as soon as they are born the domicile of his or her father, if
I
i
the child is legitimate , and the domicile of the mother i illegitimate A
£ ” A
i
&
i n
•
i 3 *
t

Vs
Vs U <1
V3
c' . .
o
5*3
-0
>
_
posthumous child , i.e., a child born after his or her father's death , derives his
o r her domicile of origin from that of the mother. As for the domicile of origin of
a foundling, this is derived from the country where he or she is found.
V3
Furthermore, a domicile of origin is the domicile acquired at birth and
not the domicile of dependence as at the date of reaching the age of majority
£ ( Henderson v Henderson ( 1967) .
Domicile of Choice
Every independent person is capable of acquiring a domicile of choice by

Vs residing in a country, other than the country of origin , with the intention of
remaining there permanently. Both the elements of residence and intention
Vd must be satisfied |before English law can recognize a change of domicile.
Although these elements are considered separate, they are interrelated.
Proof of Domicile of choice
It is a well established rule that the onus of proving a change of domicile

lies on the party alleging .Conflicting views have been expressed in relation to
^3 - *
^
the standard of proof required. According to Sir Jocelyn Simon P clear evidence
is required to establish a change of domicile. In particular , to displace the
domicile of origin in favour of domicile of choice, the standard of proof goes
beyond a mere balance of probabilities ( Handerson v Handerson (1967 )).
Scarman J examined the issue in the case of In the Estate of Fuld ( No3)
( 1968 ) and stated what has to be proved js no mere inclination arising from a
"r passing fancy or thrust upon by an external or temporary pressure, but an
3 intention freely formed to reside in a certain territory indefinitely . All the
^ ,
elements of the intention must be shown to exist if the change is to be

established ’. He nevertheless rejected the view that the standard of proof must
be beyond reasonable doubt, and he concluded that two things are clear. First
,
7 0
- o ‘Unless the judicial conscience is satisfied by evidence ofehange, the domicile
of origin persists’. Secondly, ‘the question of domicile of choice is a
serious
3t 4

-SiI
r
1
!
matter not to be lightly inferred from slight indications or casual words’.
Scarman J ’s approach seems to be the preferred one, for it was endorsed by the
Court ' of Appeal in Brown V Brown ( 1982 ) and it is also the approach
recommended by the Law Commission Report No. 168 on the reform of the law
of domicile. ( Important proposals for the reform of the law of domicile made by
the Law Commission in 1987 reflecting in part reforms adopted in a number of
Commonwealth Countries overseas but unfortunately they were rejected by the
c\
o-
Cs
G
C
V
—
~
-
-
Government in 1996 for England and Wales.) In Scotland the law in relation to
the domicile of persons under the age of 16 years has been reformed (Family
; Law (Scotland) Act, 2006) .
I
Residence
!
! C*
It has been defined as ‘physical presence in that country.aS an.inhabilant of . it
-
.
( IRC v. Duchess of Portland , 1982 ) So, residence is more than mere physical <&S
presence and , therefore , does not cover the situation where, for example , nr*
presence in a particular country is for the purpose of holiday-making. A person
can acquire a domicile in a country, if he orjshe has the necessary intention ,
after residence for even part of a day. ( Miller v Teale ( 1954) 92 C.L.R 406) . The
1 length of residence is not important, in itselfj it only important as evidence of
intention. Thus an immigrant can acquire a domicile in a country immediately .
after arrival there. “It may be conceded that if the intention of permanently
residing in a place exists, residence in pursuance of that intention , however
short will establish a domicile” ( Bell v Kennedy) (1868) . In order to be resident
in a country a person need not own or rent a house there It is sufficient to live
in a hotel, ( Levene v IRC [1928] A.C. 217, Matlon v Matlon (1952 ) or in a house
of a friend , (Stone V Stone (1958) 1 W . L. R. 1287) , or even in a military
camp
( Willar v Willar , 1954 S.C.144) .
However, it has been held that a domicile of choice cannot normally C:

be
established by illegal residence , ( Puttick V Attorney General [
1980 ]
Fam. 1German terrorist in England on false passport ) but the court
enjoys a
e-
£
s JU
IL
margin of discretion as to whether the clement of illegality precludes the
acquisition of a domicile of choice ( Mark v Mark [2004 J 3 W .L.R . 64 ) .
It has been suggested that the distinction between an inhabitant and a

person casually present is of limited value in cases of dual or multiple
residence, and that a person who retains a residence in his domicile of origin
can acquire a-domicile of choice in a new country only if the residence
^ ^
established -in that country was his."Chief residence! ( Plummer v IRC (1988) ). It
.
seems better to regard questions of this sort, as to the quality of residence, as

primarily relevant in considering whether the propositus has the intention of
permanent or indefinite residence. (In the Law Commission’s proposed
C‘ '
statutory reformulation of the rules as to domicile, the term “ presence” was

used in place of “ residence”.)
Intention
_
The intention which is required for the acquisition of a domicile of choice (often
referred to as the animus manendi) is the intention to_ reside permanently or for
an unlimited timeJn.a.particular_country. “It must be residence fixed not for
<3 _
a limited period or particular purpose, but general and indefinite in its future
contemplation “ (Udny v Udny (1869 ) ) . If a person intends to reside in a
countrv for a fixed period, the intention necessary to acquire a domicile there is
lacking, however long the fixed period may be. (Attorney General v Rowe
( 1862 )) . The same is true when a person intends to reside in a country for an
,
I
indefinite time (eg., Until passing an examination) but clearly intends to leave
the country at some time (Jopp v Wood ( 1865) ) .
What may be deduced form these principles is that the burden of proving
a. change of domicile is an extremely heavy one . Indeed this is so, if one
examines two leading House of Lords decisions, namely Winans v Attorney
General ( 1904 ) and Ramsay v Liverpool Royal Infirmary (1930) , where it
—I 3
-—
£
»
-
-
appears that there is almost an irrebuttable presumption against a change of
domicile.
r 7

Domicile of Corporations
corporation. is.domiciled in its place of incorporation, (for purposes

^
other than those of the Civil Jurisdiction and Judgments Acts 1982 and
1991) . S* Inc
_ }ts
Unlike an individual, it cannot chnngP that domicile even if it carries j3n all
,
an
S
business elsewhere. This concept describes a certain type of link between pri
individual or a company, and a country for the purposes of the Brussel
s
an
Convention 1968. Under sections 41 to 46 of the Civil Jurisdiction
or a
Judgments Act , 1982 domicile is equated with the State where a person go
corporation is resident and the nature and circumstances of their
residence
de
apply in
indicate a substantial connection with the State. Similar provisions
the context of the Lugano Convention.
‘Hi cc
U
01
Domicile and Nationality Contrasted
Until the beginning of the nineteenth century, domicile

was universally
of laws. The change ^ 2
regarded as the personal law for purposes of the conflict
started in France with r,
from domicile to nationality on the continent of Europe
the promulgation of the Code Napoleon in 1804. a
is more stable than domicile because

The advocates of nationality claim that it
the formal consent of the State of the
nationality cannot be changed without if
.
nationality The principle achieves stability
, but by the sacrifice of a man’s
new
personal freedom to adopt the legal system
of his own choice.
S
It is also claimed that nationality is easier
involves a
to ascertain than domicile because it
formal act of naturalization and does not dejpend on
the subjective
^ 1
intentions of the person concerned. This

is undoubtedly true, though there l
may be difficult cases of double nationality

or of statelessness.
*5 3
Since the object of referring matters of
status and capacity to the personal law
\
system for legal purposes , nationality
is to connect a person with one legal
federal or composite State containing
breaks down altogether in the case of a
>
more than one country.
)
>

DOMICILE - INDIAN LAW
Indian Statutory Provisions Regarding Domicile
Section 5 of the_ Indian SuccessiQnJAct.of l 925 reflects the well - known

. >
principle of English Private International Law that the succession to the

movable properties of a deceased person is regulated by the law of the country
where he was domiciled at the time of his_ death, The Indian Succession Act
goes on to make some provisions for determining domicile , but there is no
definition of domicile anywhere in the Act . Most of the rules regarding domicile
containing in the act are simply codifications of the settled principles of English
Law . For instance, section 6 of the Act provides that a person can have only
one domicile for the purpose of succession to his movable property. Section 7
and 8 of the . Act codify theJEnglish rule as to domicile of origin and section 10
deals with acquisition of _domicile_ofchoice. Section 10 along with tfje
—
explanation and illustrations clearly adopts the basic English rule which
requires the combination of factum ( residence) and animus ( intention ) to
acquire domicile of choice.
&
^Sankaran Govindan v Lakshmi Bharathi ( AIR
. 1964 Kerala 244 , Appeal
AIR 1974 SC1964 )
In this casejdispule.aroseaS-to„the_prQp£rties_qLa_ propositus jvere to_h<?

divided and in . that connection it became necessary to decide the place where
the
observed that strong evidence was necessary to displace the domicile of origin
by a domicile of choice and held that there was no sufficient evidence to
"
establish that the propositus chose the English domicile and decided to make
England his . home . On appeal , the Supreme Court held that the
permanent
propositus acquired an English domicile on the ground that the intention of the
propositus was not to return to India and the letters written by him were not
containing a real expression . Kerala High Court relied on those letters and held
that he had not acquired the English domicile .

Domicile in the Constitution of India
According to Artjde 5 pf the Constitution of India, “domicilejn India “ is one of
__ .
the conditions to be satisfied
for having Indian
citizenship at the
the
commencement of The Constitution. The term domicile is not defined in
has b
Constitution. In several cases coming under Article 5, the Supreme Court
a v
adopted and reiterated the principle of English Law for determining whether
:
particular person had a domicile in India. *% 1
Abdul Samad v State Of West Bengal (AIR 1973 SC 505)
P
In This case Supreme Court observed that the tenn domicile used in Article 5 e
! ^
his
*0
meant the place which a person had fixed as habitation for himself and s
family not for a mere special and temporary purpose but with a present P
intention of making it his permanent home. Vo o
r
Domicile and Citizenship b
Domicile and citizenship are wholly distinct concepts, thejormer refers to a E

person’s civil rights, the latter to his political status (Joshi (D. P.) v State of *0
Madhya Bharat AIR 1995 SC334 ) . F
I *» 0
P
Domicile and Residence n
50 E
Though etymologically, both domicile and residence have the same meaning of
domicile, and are related concepts, they are not the same. In the field of the *0
Conflict of laws, they have wholly different connotations (Union of India v Dudh a
Nath Prasad AIR 2000 SC 525) .
>
L]
It may be concluded that in India, whilst there have been few decisions on the
t question of domicile in the context of an i.ssue raising a problem in conflict of & §
I
laws, the question has been often considered in the light of the provisions of 9
> > a
) the Constitution relating to citizenship , and rules made by several states
relating to admission to educational institutions, both of which require a
> consideration of the question of a person’s domicile. In contrast to the federal fl n
) > 1
A)
tl
> >
> »
4
13 3 t

countries in India (vvhich is not a federation in strict
s* system of courts and many all-India laws, there can

sense) there is a common
only be one domicile
throughout India but in intra-India conflict of laws situation this position may
m
be differed (Joshi ( D . P.) v State of Madhya Bharat AIR 1995 SC334 , Kamalabai
v Devaram Sona Bodgujar AIR 1995 Bom.300).
It has also to be borne in mind that in India, the Indian Succession Act
1925 lays down detailed provisions relating to domicile, and though these
provisions do not apply to either Hindus and Muslims, and not only apply ,
even in the case of Christians and Parsis if a question arises as to the
^ r
succession to the movables of such persons, courts have frequently applied the
provisions or the principles incorporated in the provisions, which were based
on the Common Law, in other contexts. Sections 6 to 18 lay down detailed
rules relating to domicile , and they, or rather , the principles on which they are
based , have been applied by Indian Courts even to Hindus and Muslims.
Domicile of Dependent Persons
Formally in English law there were 3 classes of dependent persons for the
-
purposes of domicile infants, lunatics and marriedjwomen. The last category ,
married woraen have now been free^from the dependent status after the
^
Domicile and Matrimonial Proceedings Act, 1973.
It is necessary to avoid confusing domicile of origin with domicile of

dependence. Achild acquires at birth a domicile of origin, by operation of law.
,
This will be the domicile of his father if born during the father’s life time and
child
the child is legitimate. If illegitimate or born after thejather ’s death the
gets the domicile of his mother. A foundling gets the domicile of
origin of the.
, incapable of
country whejre it is found.. During the minority of the child it is
of the person on
acquiring a domicile of choice, but will be having the domicile
of dependence. In a vast
whom it is legally dependent. This is the domicile .
and the domicile of origin may be
majority of cases, the domicile of dependence
be different . If the father of a minor
the same, but it is possible that these may
- -%
•C, -
vXfe
rrv
. 1°

the
changes his domicile th *» d0ip-IClle- Isautornatically communicatedjo
—^
' ^
of origin
-
minor. This new d Pi. dependence; his domicile. The

always _
s constant; U is_the _one given to him at the time of his birth
occurring in the parent s
’
domicile of origin is unaffected by the changes
is
domicile during the minority of the child . When the domicile of a minor
of his
changed as a result of change in his parent’s domicile or as a result
way is
legitimation or adoption , the new domicile which the minor gets in this
the domicile of dependency and not the domicile of origin . Hence it is not
this
is
domicile but the one which the minor acquired at the time of birth which
capable of reviving in later life.
If a child is born illegitimate and later legitimated , what is the position?
When legitimated, the child automatically acquires the domicile of his So

father, I3ut this is only the domicile of dependency^ which the child gets from
the date of legitimati on . Its domicile of origin continues to be that which was
communicated at the time of its birth, i . e . , the domicile of its mother , assuming
,
that the domicile of the father and mother were different at the time of its birth .
Unity of domicile between a minor and its parents
The domicile of dependence changes as the parent acquires a new

domicile . As between a living father and his legitimate child there is a
of domicile, even though they may be residing, in different
necessary unity ,
_
countries. This is often expressed as absolute rule , so that the unity cannot be
disrupted by the will of the father . This rule of unity of domicile was retained
even in cases where the parents were separated and were in different countries , C.
the child living with the mother. In such cases the minor’s domicile of
dependence changes with the change in his father’s domicile creating a lot of
hardships. To avoid this, the_ Domicile and Matrimonial Proceedings Act of
1973 has introduced changes in the above doctrine of Unity of domicile * >
According to the Act where thejiarents are live , but living separate the child ’s
_
domicile will be that of the mother and no home with the father . But the child
li

2-
^
_
loses the mother ’s domicile, if the child changcs home and lives with the father .
On doing so, the child again gets the domicile of the father . It is to be noted
that this statutory provision only relates to the domicile of dependence and
_
does not affect_the domicile oLorigin of the child . Now what is the position , if
the father on the death of his wife leaves the children to the care of the
- grandparents and goes out to another country and acquires a fresh domicile of
choice? Situations like this are not covered by the above statutory provision .
They are governed by common law rules according to which the children will
get the new domicile acquired by the father. The common law rule of the
unlimited capacity of the father to change the domicile of his minor child , has
been described as the manifestation of parental authority and responsibility.
What is the effect of father’s death during the minority of the child?
- The child acquires upon the death of his father , the domicile of his
mother. Any new domicile which is subsequently acquired by the
mother is
of
automatically communicated to the minor child as the new domicile
c. dependence. It is necessary to affirm once again that the changes of domiciles
of the parent which are communicated to the minor child have nothing
to do
with the child’s domicile of origin.
Lunatics
As with other children , an insane child also has a domicile of origin

communicated at the time of birth. A mentally disordered person cannot
which
acquire a domicile of choice and , as a general rule, retains the domicile
or she had when .
becoming mentally incapable Since such person cannot
;
exercise any will , he or she can neither acquire or lose a domicile and
nor can
mentaIly
the domicile be changed by a person taking-chargeof or caiingIor- the.
^
.
for the
disordered person. Precisely which persons are “ mentally disordered ”
.
purpose is quite unclear The cases were under long obsolete rules
as to
, the special
“ lunatics” and had the Law Commission’s proposals been accepted
to form the intention
rules would apply to an adult lacking the capacity
IU

1
*
' 43
Jr
necessary for acquiring a domicile . Such persons would be domiciled in the

&
country with which they were for the time being most closely connected . When
that capacity was restored , - hey would retain the domicile held immediately
%
J
before it was restored , but could of course then acquire a new domicile under
th? rules applying to adults generally .
Domicile of married women %

Under English Common Law, the domicile of a married woman was the *
same as and changed with the domicile of her husband. This rule was
considered as absolute admitting of no exceptions, whatever be the
circumstances. Historically, the rule was based upon the ancient maxim_Qf the ' rj
common law that husband and wife were one and the same person in the eye <r -
O
of law. The above rule of unity of domicile of husband and wife had been
,
subject to vigorous criticism. Lord Deving characterized this rule as ‘‘the last
barbarous relic of a wife ’s servitude” (Gray v Formosa ( 1963)) .
This rule has been abolished in England by section 1 of the Domicile and
,
Matrimonial Proceedings Act of 1973. This provides that the domicile of a

married woman at any time on or after January 1st 1974 , “ shall instead of
^
S)
being the same as her husband’s by virtue only of marriage , be ascertained
with reference to the same factors as in the case of any other individual
S)
capable of having an independent domicile”. The married woman retains her
^
own domicile and is capable of acquiring a fcesh domicile independent of that

^
.
*0
. of her husband during the subsistence of the marriage . Now there is no
distinction between a married woman and a married man as regards the *0
acquisition and loss of domicile.
-a
%
Domicile of dependence - Indian law
-A
The provisions of the Indian_gq_ ccqssion Act^.1925 , broadly embody

the V
English principles and have been followed in India , even though
^ ^
they do not r
apply to the preponderant majority of Indians.
4
1 4
13 *i
*
law rules. In
Indian decisions have also generally followed the common
been held that
State of Bihar v . kumar Amar Singh ( AIR 1955 SC 282 ) , it has
had migrated to
the domicile of a wife remained Indian even though she
.Y v venkata
Pakistan , as her husband . remained in India. In Narasimharao
criticized the
lakshm i . Y , ( 1991 ) 3 SCC 451 ) the Supreme Court has severely
described it as a
common law rule about the domicile of married woman and
tyrannical and servile rule.
The Law .Commission of India in its 65 report

th had recommended the
and separation
enactment of a law for the recognition of foreign divorces
orders , a married woman should have an independent domicile
.
IH
J|
JURISDICTION OF COURTS AND FOREIGN JUDGMENTS
Jurisdiction of courts under English law
Jurisdiction of English courts in commercial disputes

under traditional
rules.
I
Whether an English court has power to hear a case in a matter which must
be decided according to principles of English law. However , the position is
complicated by the fact that there are now two sets of rules determining the
*
jurisdiction of English courts. In the majority of cases, jurisdiction is
governed by what may be called the new rules. These rules derive from the
^6
Brussel Convention on Jurisdiction and the enforcement of judgments in
civil and commercial matters of 1968 and subsequent E C Conventions
based upon it. They apply to cases involving EEC / EFTA based defendants,
! but only in civil and commercial mattery In cases falling outside the scope
,
of the new rules , the jurisdiction of English courts is determined by what

may be called traditional or old rules.
Old rules
Where the defendant is not domiciled within the EEC / EFTA but present in
England , then jurisdiction in personam is assumed when the writ is served
on his person in case in
case of a corporation , or either on the individual partner present in England
1 or on the partnership firm in case of partnership. Where the defendant is
not present in England , the English court has [ power to hear the case if he
voluntarily submits to the jurisdiction , or if the plaintiff obtains leave to
_
serve the writ on him outside th£-iurisdiction und < the
rules of the Supreme Court.
v-2
Order 11 R - 1( 1 ) provides for a multiplicity of instances under which leave of
! the court may be obtained . The burden is on the plaintiff to show that the
dispute comes under any one of the heads provided in reference to an
individual, a writ maybe served on any individual who is present in England,
t 3
i

v- S.
uy
however , short his visit maybe for insinncc - flviaharani

'
of Baroda v .
3
Wildenstei ( 1972 ) .
Facts; the plaintiff , an Indian nrinccss in France , broupht an actiqp

residing
against a US art dealer , also residing in France . for breach of contract

for
sale in France of a painting which turned out to be a forgery . The

writ was
served on the defendant during n short visit to Ascot races.

with a
The Court of Appeal held that the defendant had been properly served ^
Corporations
corporationjg
By virtue of Sec- 691 and 725 of the Company ’s Act 1985, a
deemed present in England for the p\irpose of serving a writ
in three
situations:
only carries
• A company registered in England is present here even if it
on business abroad (S.725)
• If the company is incorporated outside England but has a place of
business here (S.691)
• Jf no such address is filed , or if the person named dies or for any

^
T*
3
reason the writ cannot be served , the writ mavbe served on tine
T company by sending it to any
The above provisions give rise to the question of when a foreign

J company is said to have established a place of business in England.
This question can only be answered by examining the activities of the
defendant company in England , g) .
^korfiiJ
South India Shipping
(1985)
Corporation limited v. Export Import Bank of
Facts: The plaintiff a com panv incorporated in India brought n H îim

,
against the defendant bank which was incnrpnrnted in korea where its
main business was conducted . However, the bank rented an officg_Jn
London for the purposes of gathering information and maintaining

$0
Public relations with other banking and institution^11--

United Kingdom and Europe . No banking transactions wfrp concluded
6
^
from the London office , nor was the office registered a P^ ace •
business under Companies Act , 1948 then in force. The \vrit vvgi5 __ —
served at the office in London
established a
• The defendant contended that as they had not
place of business in Great Britain the writ was not duly served .
• The court of appeal held •air
established a place of business in great BritainJfliCcarrigd on
part for its business activities here , and that it was not
necessary for those activities to either a substantial part of > . or
_
more than incidental to. the main object of the company
Accordingly the defendant was duly served with the wrk for it had
established a place of business here and it was immaterial that the
defendant did not conclude any banking transactions from the London office
nor has banking dealings with the general public.
Jurisdiction under the new rules
Where the (defendant is domicileWithin the EEC / EFTA , the English court
must ignore the traditional rules and assume jurisdiction in accordance
with the provisions of either the Brussels Convention or the Lugano
Convention .
As a general basis of jurisdiction , the essential criteria is the domicile of the

defendant. The courts of the member state in which the defendant is
domiciled will have jurisdiction to entertain a dispute within the scope of the
conventions.
> Alternative bases of jurisdiction are provided by virtue of the provisions on

special jurisdiction i .e. in relation to contract , tort , maintenance, matters
relating to insurance , consumer contracts, etc.
,

S3 S®
• ’
In such cases, the plaintiff is

Riven the choice lo brine his action either in
the courts of the member state where the defendant is domicile or in ( he
*
.
courts of the member-Statc designated by these provisions.

,
so g provisions on exclusive jurisdiction under Article 16
come into operation. The effect of such basis of jurisdiction is that the
designated courts of the member state will have exclusive jurisdiction and
2
*
»
2
the courts of the defendant will have to decline jurisdiction . Such exclusive
jurisdiction arnlies in relation to issues of immovable property , companies
and associations, intellectual property , enforcement of iudgcmeuts ^ ctc.
•*>
- 3
Additionally and subject to Art. 16, further provisions for exclusive
jurisdiction apply in relation to jurisdiction agreements and defendant’s
submission to the jurisdiction of a member state other than that of his
domicile.
By virtue of Art .
IS of the convention, the courts of a contracting state
before whom a defendant enters an appearance shall have jurisdiction . This
t 3
is so, except where his appearance was solely to contest the jurisdiction , or
where aunther . mnrt has exclusive jurisdiction under Art . 16. However, by
only mentioning Art. 16, Art. 18 seems to prevail over an agreement
^3 conferring jurisdiction under Art. 17.
-3
*3
Jurisdiction within UK
Sec.16 of the Civil Jurisdiction and Judgements Act , 1982 allocates

mrisdictionwithin the UK. This is set out in Schedule 4 of the Act and it
applies a modified form of the provisions on jurisdiction in the Brussels
convention. According to Sec 16, the modified rules apply if the following
three conditions are satisfied:
• The issue must concern allocation of within the UK;

jurisdiction
The subject matter of the proceedings must be within the scope of

the
•
1
1968 Convention;

(
• The defendant must .

h H^;.iled in the UK . or the disputemusL£.°me
_
withinthe scpg of Art . ifi of the rnnv ntjnp
,
^
It may be concluded that the rules relating to jurisdiction are numerous.
There are four different sets of rules under the Brussels / Lugano system , i .e.
the rules contained in the Brussels I regulation , the EC / Denmark
t agreement , the Brussels convention and the Lugano Convention . There are
also rules contained in a modified version of Brussels I regulation ( the
modified regulation ) and traditional English rules on jurisdiction. The rules
can be classified broadly as under-
Jurisdiction Under the Brussels / Lugano System
(A) The BrusselsrI Regulation
In broad terms, the rules on jurisdiction contained in the Brussels I

RegulatiorLaoplv where:
(a) The matter is within the scope of the Regulation (_ a civil and
.
commerciaLmattsi) ; and -
( b) The defendant is domiciled in a European Community Member State,
apart fir* Denmark (i.e. in Austria, Belgium, The Czech Republic,
Finland , France, Hungary, Greece , Ireland , Italy, Portugal, Romania ,
I Netherlands, Spain , Sweden and UK). And even if the defendant is not
_ _
sn domiciled , certain provisions in the regulation will still apply1 eg. _
where the case involves title.tCLiandin.a member state cr where there
,
is an agregment-conferring-jurisdiction- on- the- courts-of a member

state..
( B ) The EC / Denmark Agreement
In broad terms , the rules on jurisdiction contained in the EC / Denmark

Agreement apply where:
_^
(a) The matter is within the scop QOhe Brussels_ I _ Regulation c [ vn and
commercial matter) ^

6 -0
( b) The defendant is domicile in Denmark . Even if the defendant is not

so domiciled , certnin nmyjsfc
eg -
_ _ Ln Penmarlc or -whcre-thereJs_Bn
WjTere the case involves title to land _ _ .
— — ——
agreement conferring . jurisdiction on the courts of Denmark. The
EC / Denmark agreement applies by international law the provisions of
the Brussels I Regulation , with minor amendments.
( C )The Brussels Convention
In broad terms the rules on jurisdiction contained in the Brussels

Convention are applied where:
(a ) The matter is within the scope of the convention (a civil and

commercial matter) ; and
-
( b) The defendant is domiciled in. one. aLthe t&rritoriea-oLthe _ contracting
states which fall within the territorial scope of the Brussels
,
-
Convention and arp. excluded from-the- Regulatiom The territories in
.
question are (in relation to France) the French overseas territories .

such as Caledonia and Mayotte, and (in relation-to Netherlands)
Aruba.- Even if the defendant is not so domiciled, certain conventions
in the provision will apply, eg. where the case involves title to land in
one of the French overseas territories or Aruba, or where there is an
agreement conferring jurisdiction on the courts of one of the French
overseas territories or Aruba.
( D )The Lugano Convention
In broad terms, the rules on jurisdiction contained in the Lugano

Convention are applied in the UK and in European Community Member
State where:
(a) The matter is within the scope of the convention ( a civil and
commercial matter) ; and
or
( b) The defendant is domiciled in an EFTX state (i.e. Ireland, Nonvay
, certain
Switzerland ) . Even if the defendant is not _ so„ domiciled

where the case
provisions in the convention will still apply , eg .
is an agreement
involves title to land in an EFTA state or where there
. Fu£ - • —
conferring jurisdiction on the courts of an EFTA state
Comm unity
_^ _
states Q b-S£2
£n
also possible for non - EFTA / European
parties to the cohvention . The terms of the Lugano
'
Convention have %
been aligned with those of the Brussels I Convention
.
Stays . Injunctions , Lis Alibip_gg 1
Prevention of Forum Shipping:

and Jurisdiction Clauses
%
by - passing his natural
Forum shopping can be defined_ja.s a “ plaintiff
would give him
forum and bringing-hia action . in _some_alienJoDiiruwhich
,
relief or benefits which would not be available to

hurt in the natural
forum” . (Boys v Chaplin , 1971)
to
impac t of the Englis h law rules on jurisdiction, whether in the
The
clearly allows plaintiffs to forum
context of the old rules or the new rules , T
shop.. Jo circumvent this end under the older
_
rules, English Cour sJaave
^ *
stay an action brought in the
been lent a discretionary power either to SO
ings when it is appropriate to do
English Court or restrain foreign proceed ,
S3
so. This power rnayb/eyr ^
invoked on the grounds of the forum non
mnvenience . lis albi penden s or exclusive jurisdiction agreements .
~ ~ (3)
(Section 49 , 3, Supreme Court Act,
1981 ) ^
ST
Stays of English proceedings
*u
/o W"
will proceed
If the defendant has been properly served the Ênglish court
with a case unless the defendant proves that England is not the natural
forum and that there is another available forum which is clearly and V*
distinctlymore appropriate for the trial of the action . In such a case the v
court will exercise its discretion to stay the proceedings.
r
In order for a stay to be granted the defendant has to base his reqnpct ^
pne of three grounds : r
^
r
• Firstly, l commenced in a
-
foreign forum the-detendanldaims that the anti 1

,
ought to be
I

.England-is-fomm non convenience .
— —
tried in the foreign forum _ rnther than in England , that is ,
,
• Secondly , the defendant applies for the English action to be stayed

,
because procccdings _havc nlrcndy been instituted in the foreign

forum , that is. li alibi pendens
• Thirdly , the defendant wishes the English action to be stayed

Srs»* that disputes of the type are
subject to the exclusive jurisdiction of a particular country
Forum Non Convenience
e
‘•Nsi*
The doctrine of forum non convenience whilst it has been applied in
_ _
SCQtland and_ in the United States for a number of years has nat h£en. _ _
accepted in England until recently. The English discretion to stay is _ no.w
e.
indistinguishable from the Scottish doctrine of forum non convenience.
dr
gSpiliada Maritime Corporation v. Cansulex Ltd /. (
. zz
The law was exhaustively considered and restated by the House of Lords in
, 3 this case , where (ord Gofpkiving the unanimous judgment of the law lords
set out a number of principles on which the discretion should be exercised .
Mere, it is essential to note that the decision on the exercise of the discretion
is essentially one for the judge at the first instance, and an appellate court
should not interfere merely because it would give different weight to the
factors involved .
_
The basic principle is that a staY-WilLQnlyj3£.grant£d.on the.ground of forum
non convenience where the^court-iS- satisfied that there.ia_-Some other
available forum having jurisdiction which is the appropriate; forum for trial
,
of the action , that is in which the case maybe tried more suitably for the
«
interests of all the parties and the ends of justice.
.
This is the most important of the principles and sums up the whole basis of
'
the forum non conveniens discretion. Lord Goff , however, did lay down a
number of other subordinate principles - which have br;en frequently followed .
He referred to a two stage enquiry. The first stage is concerned with whether

*
there is another available fnrUm
which is
Srr
< r
English forum ; the second stage with
requirements nf justice
ian
^
t
The spiliada test which states that a stay will
only be granted on the ground
of forum non convenient where the defendant can
prove that there is a more t
appropriate forum where the action maybe tried more suitably for the
t
interests of all the parties and the encls of justice. Such factors as
convenience , availability of witnesses , the law governing the relevant
transaction ancj the places where the parties~ reside or carried on business
Depriving the plaintiff of a legitimate or juridical advantage would not, as a

general rule , deter the English court from granting a stay if it was satisfied
that substantial justice as between the parties would be obtained in the
natural forum. c-
Under the new rules the doctrine of forum non coneviens does not seem to
operate unless the conflict is between the court of a contracting state and
that of a rio contracting state^
v''
- Re
^
^
^
Harrods ( Buenos Aires) Ltd ( 199 ljjf
In tliis case an action was brought for inter alia , the winding up of an
C.
Cs
c.
English incorporated _CQmpany. The company’s registered office was in
Ss
England but its business was carried on , and it was managed and controlled
. _
exclusively in Argentina The Brussels conyention applied by virtue of the
Vs
company’s domicile in England . However the defendant argued that the

V
English proceedings should be stayed because Argentina was the most
appropriate forum for the trial of the actiorp He also claimed that article 2 of
the
_
convention did not have awids,nian datory effect where thej 1y rnnfbct _
^
,
was between the courts of a convention countrvjmdjhe_rm ^ rjsj'f a non

convention i country. The _Court _pf Appeal unexpectedly upheld this
argument
~~
^ TTd granted
_
a stay ofdie EnglLsh.proceedings. A fundamenta
l distinction l
was drawn between casesjwhere the alternative forum was in a contracting -

J
state and as the convention wasmtended and designed to repatriations v
L
1
only between convention countries the court held that it retained its
discretion under section 49 of the 1982 net to stay or dismiss the actions on
the ground of forum non conccnvicns where the more appropriate forum
was in a non contracting state. This decision has been widely criticized for
having misinterpreted the conventiOh and _ for creating uncertainty in the
law. (Cheshire and North , Private International Law )
Lis Alibi Pendens
In some instances proceedings between the same parties arising out of the
same dispute are simultaneously pending in the English court and the
_ _
courts of another country. This is referred to as a case for lis alibi pendens.
Under the (traditional rules ) the English courLjrnaybHIasked_e[therj^by the
_
defendant to the English proceedingS-tQ-Stav the- action in England , or by
_
the plaintiff to the English proceedings to grant aniniunctipniIgstraining.tbe
foreign proceedings.
Where the defendant to the English proceedings applies for a stay on the
ground of lis alibi pendens, the English court, in addition to forum non
conveniens must take into account
more expense and inconvenience tp the_ parties and may also lead to two
conflicting judgments.
ft
In cases where the concurrent proceedings are in the courts of the united
ft
ft _
kingdom on one hand and the courts of another EC or EFTA state on the
- -
* ^
ground of forum non conveniens.on similar
- -
other, the ew rules)give no discretion to.a courMo stay proceedingsjQii.the
grounds.(Article- 21 as redrafted
^
I in thc Lugano and San Sabastian conventions provides that in such cases “
any court other than the court first seized shall of its own motion stay its
proceedings. until such time as the jurisdiction of the court first seized is
* established ”. Once the jurisdiction is established M any court other than the
court first seized shall declinejurisdiction in favour of that court”. It should
be noted that while article 21 is limited to concurrent proceedings in
^
contracting state there is no requirement that either party should be

ts
domiciled in a contracting state (Overseas Union Insurance Ltd v . New
Hampshire Insurance Company , 19 2 ) .
^
^cause
nyention allows a court to stay its proceedings where
the
nnr the uomc bat related is pending in another state_ first

_
^
f article 22 (3) “ Related Proceedings”
are
seized of th 6
proceedinggg h» ch ^ ° jt js expedient to hear them
that
.
^ ^ eclosely connected
p
T ~ ^ separate
t< eth & from
risk of irreconcilable judgments resulting
^
proceedings.
have
convention applies where two contracting states
^ _
- 1 iansdlfrllPn fryer the Jjame jca.se. The court first seized has
jurisdiction .
Foreign Jurisdiction Clauses
Where the have argued in a binding contract to submit their

parties
a
disputes to a foreign jurisdiction, the English court will not in general allow
any of the parties to resile from their earlier agreed choice of jurisdiction. In
1
other words if one of the partners contrary to their agreement brought a.n A
action to the English court then the proceedings will normally be stayed for
the English court will not in general allow a breach of contract. This is so
even if part of the a reement between the parties is void .
^^ ^^
Trendtex Trading Coloration v. Credit Suisjjgf (1981)
Where an assignment of a cause of action took,place in Switzerland and tine
agreement included an exclusive jurisdiction
_
clause in favour of the Swiss
courts, the house of lords granted a stay and.. held - that. although an
_ „
k
assignment of a cause of action is void in EnglantLas.heing against public

-
policy, this did not render the whole.agreement void accordingly
the choice
of jurisdiction clause was still for a stay to be refused in these
circumstances, the plaintiff will have to show that either the
whole 7~ •
agreement i£ id or that the jurisdiction clause itself is void .
^
fa jlvlackender v. Feldi^^ l 967)
)
>
.
v
7" »
-
k
.
V
k
.>
»

. -
I
u
3
i >5
Where a contract of insurance wns made in London between the plaintiffs ,
Uoyd ’s underwriters , and the defendants , diamond merchants , the policy
contained an exclusive jurisdiction clause in favour of the Belgian courts
. .
and was exclusively governed by Belgian law . Some diamonds were lost in
Italy and the plaintiffs refused ' to pay and brought an action in the English
'
Italy ,
court claiming that the defendant had smuggled the diamonds into
and that the contract was void
ion ;e . Accordingly , the jurisdiction clause was also void . The
court of appeal applied English domestic law and formed that
non -
'
the
disclosure rendered a contract voidable and not void ab initio . Therefore
jurisdiction clause was valid and a stay was granted ..
-> s Oral agreement on jurisdiction

v
"
^
Hamed El Chiaty v . Thomas Cook Ltc ( 1992)
^
It seems that an oral agreement on jurisdiction is as effective
one .
as a written
-Jt
company , contracted with the V

«3 Facts: The plaintiff , an Egyptian tourist
defendants , an international travel . company
registered and based in _ _ >
*3
. . ,
nt agreed to
England,, to construct a cruise ship. In return the defenda
finance the vessel of the ship and to charter it for use
on their package
~
whereby it was agmed_that
tours. A series of written contracts were made
were _<dlentJaa tn the
the proper law of the contract was Egyptian , hnt they
during
choice of jurisdiction . The defendants claimed , however , that
_
negotiations
— the—parties_ hacL ocally
. _ agreed that any djgmiteLS shpuld_Jbe
,
Riihjert to the jurisdiction of _ the Egyptian courts . On the failure of the

defendants to supply the agreed minimum number of tourists . the . plaintU
Is
,
brought an action in the Englislx court . Upholding.thC-defendants argument

,
-
Hirst - J held that the oral agreement on jurisdictiQn waa

_ _yalid _ an.d
accordingly a stay was granted .
agreed
The English court has discretion to refuse a stay where parties have
shew tbiat
to submit disputes to a foreign jurisdiction if the plaintiff can

m L3 ^C.- n
'
-T ,
justice cannot be obtained in the agreed forum . ( Carvalho v . Hull Blyth

-
.
) (Angola ) Ltd . 1979 )

a
%
1
'
)
Where the parties _ _
have agreed to refer their disputes .to.-the-courtsjof
' a
Contracting state then their agreement is governed _by Article _ -17 which was} C;
significantly amended by both the 3an Sabastian and Lugano jconventions _— e,
Article 17 ( 1) which was amended ^

in identical terms , provides that if the
parties, one or more of whom is domiciled in a contracting state , have
agreed that a court or the courts of a contracting state are to have
jurisdiction to settle any disputes which have arisen or which may arise in
connection which a particular legal relationship, that court or _thQSC-C ui:ts °
shall have exclusive jurisdiction , provided that the jurisdiction clause is.
In writing or evidenced in writing ; or S

In a form which accords with practices which,,the parties have
, ,
s
established hetween themselves ( this provision was not in the Si
Brussels Convention ) ; or
*
International trade or commerce in a form which accords with a usage
i
of which the parties are on ought to have heen aware and which in
.
_
such trade or commerce is widelv known to and regularly observed by
—
of the type involved particular trade or
,
*c
commerce concerned ( the words after aware in courts were added by
the San Sabastian and Lugano conventions) . Similar provisions are
made for jurisdiction clauses in relation to trust instruments
under
article 17(2) . <
Article 1 (3) imposes two limitations on the
^ ,
UmitationjjpElies. in relation to article 16 of the

agreement. The first
tha
^ _
convention to the effect
jumdictionagreement shall have no legal force if i
_ _ r r t to . -. - -
^wordg ^
exclude the coj ts contm
^ g£
by^ vntuejifarticlqj
states hjgh haveexclusive jurisdtohon
nature. Second ^ ln the
limitation
, article 16 is of an
V
applies when thejurisdictign
over writing
-X agreementJ
_
contrary to provisions of article 12 or £
article i * In
agreement shall have no legal such cases, the
force.

r^%
T\vo further qualifications on the effectiveness oLiurisdiction clauses are

contained in article 17 f 4 ) and ( 5) If the jurisdiction agreement was
concluded for the benefit of only one of the parties , then by virtue of
to bring proceedings in any
it* other court which has" jurisdiction under the convention . So because the
agreement is only for the benefit of one party that party is given the right
to wave that benefit. Article 17 ( 51 is confined to mattecS- rclatiOfL-to
.
a . .
individual contract ofiemplr yment This is a new qualification introduced
* by the San Sabastian convention and Lugano convention , but alas in
legal
slightly different terms. The agreement on iurisdiction arilLQnly- have..
-
*0
in
court of
rrO 5 (1) . The
the defendants * domicile or those courts specified in article
*3 latter alternative is only available under the san Sabastian
convention.
4 of the civil
A similar version article 17 contained in schedule
- ^3
r
cases where the
jurisdiction and judgments act 19S2, which deals with
ent that the
defendan t is domiciled within the UK omits the requirem
3
jurisdiction agreement must be in writing.
«
Restraining Foreign Proceedings
the plaintiff goes shopping

Where the appropriate forum is England and
- J' abroad , the defendant can apply for an
injunction to restrain foreign
will be heldJn
J- proceedings, and if the plaintiff declines to comply with he
contempt of court.
3 injunction would be
As a gepral rule the applicable test is that an
_
granted Jf_tke prQceedmgsîD_Jhe foreign courts are vexations and
oppressive -to the „ defendants and the injunctions would not unjustly
^
, ,
to him in the foreign forum .
This seems so, unless^the plaintiffs only remedy is available in that

-a forum . Under the ( new rules), the English court has hkld that an exclusive
jurisdiction clause between parties under article 17 allows tbp c°urt to
^
4 1
.

grant an injunction. (Continental Bank NA v . Akakos Compania Naviera fs
SA & Others 1994 ) IV
Recognition and Enforcement of Foreign Judgments
'
5*
Introduction :
Due to the UK’s accession to both the Brussels and Lugano conventions,
there are currently two sets of rules in relation. to re <
— .
enforcement.of foreign judgments depending on where the judgment in

%
question was rendered . If it was Tendered_
within EC / EFTA States then
_ %
the issue would be exclusively govern ed bv- Civil jurisdiction^ and
—
%
Judgments -Act-Sch. IV 1982, 191 .. However, if the
—
judgment was
rendered outside the states, then the traditional common law rules, as
_
amended and reinforced by statute, would apply.
%
Before moving on to examine both sets of rules it is essential to know the
distinction between recognition and enforcement.
s,
- _ ^ — -^
Whilst a foreign judgment must be recognized before it can be
enforced , not e_verVL recognized judgmen.t n ed to he nfarced.
.
Recognition simply means that the English courts take note of the
result of the judgment. Hence, if English law recognizes a foreign

divorce decree, this simply means that it will consider the couple as
unmarried. However, there may be an order ancillary to such a decree
which may be capable of enforcement, sucfTas an order that the
^
husband should pay maintenance to the wife. It may be noted that

there are special rules on the recognition of foreign matrimonial *k
judgments. 4k
Foreign judgments have been recognized and enfor edjjyjhe English

. .
courts since the 17* centup This was initially based on

^ 1'
^ riT
oHcomityj However, this , theory .has been.superseded hv t e firotrimj)
H
1
1»
fqfobligatiog) which was stated in Schibsby v. Westenholz (1870) ^ linthe 1'
following terms. .. ’the true principle on which the judgments v

of foreign

pf°
tribunals are enforced in England is . .. . that the judgment of a court of

competent jurisdiction over the defendant to pay the sum for which
judgment is given , which the courts in this country are bound to
enforce; and consequently that anything which negatives that duty , or
forms a legal excuse for not permitting it is a defence to the action .
*
Since 1982 , a plaintiff who has obtained a foreign judgment for a debt
can only bring an action in England for the debt and can no longer
bring fresh proceedings on the original cause of action . A plaintiff
seeking to enforce a foreign judgment in England may either sue on
the obligation created by the judgment , or plead the judgment Res
Judicata in proceedings which raise the same issue.
Under the_ J dmjnistration of justice act 1920)_a.person yho obtained, a
^ _
judgment in any part of the commonwealth may apply to the high
_
court to have the judgment registered . Registration is however,
^
discretionary.
_ _ __
Under the (foreign judgments ; ( reciprocal
registration oLa-foreign ,
!1
judgment in England is
^nforcements) act 193
^
as of right _and__ not
discretionary, and the successful litigant can make his application at
any time within six years.
-X
, _ Requirementsunder the old rules:
The foreign court must have been jurisdictionally competent to try the
action. Competence is tested in the context of residence of the
defendant in, and / or his submission to, the foreign court.
Where the plaintiff seeks enforcement at common law or under the
1933 act rather than mere recognition , the judgment must be for a
fixed sum of money , final and conclusive and not rendered in matters
^
of foreign revenue, penal or other public laws, provided that it is not
inconsistence with the provisions of the protection of Trading Interests
Act , 1980. One main distinguishing feature , however, under the 1920
act is that the judgment must have been rendered by a superior COUJT *
Defences: ,
The defences which may be raised by the defendant against the

enforcement of a foreign judgment are fraudf pnhlic policy, natural

u
C,
c
does not c
> justice , and breach of section 32 CJJA _i gg& This section
,
affect judgments required to be enforced and rccogn

ized under either <
Brussels or Lugano conventions .
4-
C
t
(
EC / EFTA Judgments
any judgment given by a
i
The provisions of the conyentions appjyjg, ^ <

the
court or tribunal of contracting.state1 _
reganiless. pf whether or not ^
injuncf _ ,
defendant is dnmir.iled _ in _ a contracting-state , including
. —
etc and provided that the
specific performance, writs of executions,
_
jUiigIJient-was nQtmade ex parte, ^
_ must be recogmzed m all _

A judgment given in a contracting jjtate ,
procedures required . In,

other contracting states without any special
,
_
relation to enforcement, however^ s] lL udgmsnt-musl
_
beenforced
^^
application of any interested
in another contracting state when , on the
party , JLt has bPfm declared enforceable there .
Mechanism for enforcement

The procedure_for_ the enforcement _ of_ judgments in the Uk is a two
^
stage process . ( Firs the plaintiff.makes. an ex parte application for an
order_ of _enforcement. At this stage , the defendant _does_ not have. the
right to be jieard . (Secondly} once the judgment is authorized , notice of
registration is served on the defendant who has right to appeal .
.
Defences
2.7.-& 28 qf_ thg Brussels convention provide for a number of
_
ences 2_if qny pf_tliein_is_ established , IhenJhe judgment, will not be
j
^ ^
recognized . As recognition is prerequisite for enforcement . Article 34

expressly states that these defences apply equally to enforcement. A
_
_
j . W;
l
^ defe'ndant may.wise one or more seven defences such as public
,
policy, non -reconciliation^ [ack of jurisdiction etc A further four

_
| 1 defences majtbeJnvokedwhereJhe judgment is sought to be enforced
within EFTA states.

Recognition and Enforcement within UK
1
—
A judgment rendered in _pnc.parljof tlie. UK ma . bc(enforcgdJ n
\ another
- ,
part if it meets the requirements of (Section lS of

Enforcement can only be made by the
^ ^ the _ 1982 Act .
way of registration under
Schedule 6 of the Act ( for money or in -
^ SP Judgement . Section initially
^’ ? ) 18 defines “Judgment “ in a wide
manner and then gives a detailed list of the judgment it does not
cover. (Section 19 \applies inflation to (recognition-of judgment kvithin
theUK.
,
—=
' •J'
C S»
—^

.
Cl
I
TV
cv.
ni
Jurisdiction - Indian Law i vo
"
_^
In India the Code of Civil Procedure 1903 contains detailed provisiwsja jng do asio3he-Il P
>
court has, or docs not have jurisdiction. It is not, therefore, absolutely necessary to consider the
rules at common law, as applied in England. A reference is, however, made to these rules, where
*7
appropriate, as the provisions of the Code are based on the Common Law and as many Indian
decisions refers to the decisions of English Courts.
Issues pertaining to Conflict of Laws arise in the comparatively few cases in which a suit has a
,
^
foreign element, namely, whether and when foreigners and foreign corporations can sue, or be
sued in an Indian court, and who enjoy immunity from suits.
_
A question which also arises in a situation when an Indian court hayinsjurisdiction will decline iI *G
to exercise it, for example, if parties have, under their contract agreed that all fePtitgs between
V
them will be resolved by arbitration, or that .
suit which may be filed inus . be filed in a
any i v
specific foreign court There are also occasions when a court may conclude that in the T*
circumstances of that particular case, the dispute should be resolved in a foreign court by
applying the rule known as the forum non conveniens rule.
Suits hv Enemy Aliens
The only persons who cannot adopt proceeding in an English Court are enemy
.
aliens In India
the position
^
is regulated by Section 8?) of CPC 1908, which is based on the principles
of
.
Common Law Alien enemies residing in India or outside India have to take _
the pennission from
.
the Government of India to file a suit The explanation to
the section provides that every person
residing in foreign country the government
of which is at war with India, and
carrying on
business.in.that.country wilhouta license from the Government of
India is to be deemed, for the
purpose of this section, to be arTalien
^ enemy?) An alien enemy
Because, section 83 only bans alien enemies from
can^however defend a suit.
invoking the jurisdiction of the
court, and
d* -
there is no provision in the Code which bans ^
such persons from defendin
g suits filed against
I them.
7T"
-*
.
« I
I _ J
X%

PT\
Who is nn alien enemy?
What has to be considered is whether the plaintiff was an alien enemy when the suit was
instituted, and if he.was. not, the suit is maintainable and can be heard when if he.subsequently
b* becomes an enemy alien.f Prern Pratap v. Jagat Pratap Kunwar AIR 1944 All 97, Feroza Begum
v. Dewan Daulat Rai Kapoor AIR1975 Del 1.)
If a plaintiff becomes an enemy alien during the pendency of the suit and his property vested in
.
the custodian of-Enemy Property, the suit did not abate (S.N.Banerjee v. B.C. Chakraborty AIR
1976 Cal 267). An enemy alien who is pennittgd by.thejGovernment of India to stay in India can
file a suit ( Angelina Reiffsteck v. Joseph George Reijfsteck (1917) ILR 39 All 377).
p» Immunity from Suits '

LLS^
<
courts of other countries. In this regard the following are International Conventions:
r* a) United Nations Convention on Privileges and Immunity of the United Nations (1946).
b) Vienna Convention on Diplomatic Relations (1946).
These Conventions provide for immunity to the United Nations and its agencies and diplomats.
In India the question is governed entirely by statutes, namely, S. 86 of the CPC (1908), the
United Nations (Privilege and Immunities) Act, 1947 and the Diplomatic Relations (Vienna
Convention) Act, 1972. The 1947 Act confers immunity from suits to the United Nations and its
agencies such as the World Health Organization (WHO) and some of its personnel (in respect of
official acts). Under the Diplomatic Relations (Vienna Convention) Act, 1972 gives statutory
_
effect in India to the Convention, under which specified diplomats eniov immunity from suits .in
India.
The principle provision is, however, S. 86 of the CPC 1908, which enacts the principles of ,
International Law relating to sovereign immunity in a modified form.

_
S. 86 (1) as originally enacted, conferred immunity from suits to foreign rulers and “chicfs of
_
Indian states,jmjd.prQYided thatJhey_CQuld_ not be sued without the consent of ovemincntof
v.
India..The word “ruler” also applied to Heads of State in a Republic. ( Mirza Ali Akbar Kashavi
United Arab Republic AIR 1966 SC 230)

as
S. 86 as it stands today, provides as under -
the suit except with the
‘No foreign state may be sued in any court otherwise competent to try
consent of the Central Government certified in writing by a Secretary to that
Government .
_
Provided that person may, as a tenant of immovable property, sue without
^
aforesaid a foreign statefrom which he holds or claims to hold the property.’
such consent as
in granting
S. 86(2 ) sets out the factors to be taken into consideration by the Central Government
nodecrce can
consent .S. 86(3) provides that except with the consent of the Central Goyemment^ ^
I conferredtoruler s
be executed.against the prqperty of any foreign state^The same immunity is
,
of foreign states, ambassadorsjiigh commissioners and specified diplomatic personnel

_
{86(4)} . _
diplomats can be
No ruler of a foreign.state or ambassadors or high Commissioners or specified
arrested underthe CPCj86(5)}
Suits by and against mlers of a foreign state should be in the name of the
. . 87).
foreign state (S
the person
‘Foreign state’ means a state recognized by the Central Government and ‘ruler’ means
that a
so recognized by the central Government; and a court must take judicial notice of the facts
.).
foreign state or the ruler, has or has not, been recognized by the Central Government (S. 87-A
Section 86 shall not apply in cases of application of special enactments like .Carriage by Air Act
1972.
Jurisdiction - General Provisions

In International Law, courts of any country have jurisdiction over property situated within the
country and over persons who are citizens of that country or domiciled there, who owe allegiance
to that country.
Suits Relating to Immovable Property

(Section ) _
ld prgvides that suits for Jhe poss ssioiuofJmmoyable property Qahe partition of
^
^ ^
^
I
I ^ movable property or the partition of immovable property, or relating to the mortgage of such
property, or relating to the mortgage of such property, or for wrom isjo such property, can be
--
fc
A
_.
•

--
L
f*
i » >£ >
filed in.the courtjy,jthinjyjioscJurisdiction the property is situated. Property in this :section means
Lt* property situated in India .
L The only exception to this rule, which may have the effect of enabling a suit to be filed in respect
UP* of foreign immovable property, js in cases.where a person holds propertyon behalf of another,
H P* and relief can be obtained through the personal nhedjence of the defendant . The suit can be filed
J2* in the court within whose jurisdiction the property is situated , or the defendant actually and
voluntarily resides or carries on business or personally works for gain.
All other suits can be filed within whose jurisdiction, the defendant or some of the defendants
actually and voluntarily reside or carry on business or personallyjwork for gain, or the cause of
Cp» action wholly or in part, has arisen.
If one or more of the defendants do not reside or carry on business within jurisdiction, the suit
>
_
can only be filed . against such .defendants either _ if the court grants leave or such defendant
L
E*
F*
,
submits to jurisdiction. (Section 20) -

.
L Corporations
l. A corporation is deemed to cany on business at its sole or principle office in India, or in respect
of a cause of action arising in any place where it has a subordinate office at such place.
-nr
t
rf
TS ** A company incorporated outside India which has established a palace of business in India is
required tn file with the Registrar of Companies, the name of a person and address where process
can be served on it, and service can beeffected on such person and at such place. {Section
592( l )(d)The Companies Act, 1956}
-
If. in applying these rules, if it is necessary toserve a defendant not withia the jurisdiction ofthe
rft
r%
Court, the provisions of the Code permit service outside such jurisdiction and even outside India
(QrderV CPCpService abroad can - also be effected through a specified authority in a foreign
C
country if the country has been notified by the Central Government. (O V R 26A). Under
Sectio
.
_
issued by a
.
29 Code of Civil Procedure 1908, Indian Courts must effect service of summons
,. .
tft thp entries party lo ^
e
NT
;v
r
*
*
- .
Hggug Qpnvcntion on Service Abroad 1965 (Notification of the Central Government dated 28
November 2008) .
Special Provision - Jurisdiction
Apart from the Code of Civil Procedure 1908, certain statutes enact special rules relating to
jurisdiction in specified cases. Such special provisions relate to admiralty matters, international 4
J
i
carriage by air and matrimonial matters.
.dmirnlitv Jurisdiction rn»

The_ Letters Patent of the Chartered High Courts of Bombay, Calcutta and Madras, which were
FL *l
,
_
the successors of the old Supreme Court in these cities, and which exercised original civil
jurisdiction, conferred on those High Courts the _ admir.altyJurkdictiQn in.rem _ exercisedby
L i
i English Court of Admiralty.
The question whether at present High Courts possess admiralty jurisdiction has now been
concluded by decision of Superme Court in MV Elisabeth Vs. Hanvan Investment and Trading
_ _
Pvt. Ltd. Goa (AIR 1993 SC 1014), which held that alLHigll-Cflurts-in India were Superipr
-
b
Courts of Record having original and appellate jurisdiction, and have.inherent and plenary
,
powers. It held that “Unless expressly or impliedly barred, and subject to the appellate or
discretionary jurisdiction of this Court, the High Courts have unlimited jurisdiction, including the c
.
jurisdiction to determine their own powers ” The Court relied upon its earlier judgment, Narcsh L
Shridhana Mirajakar V State of Maharashtra (AIR 1967 SC 17). The mode of.proceeding in
admiralty matters is regulated by rules made by the Courts. The usuaLomeedure is to apply for
the assert of a ship, or its cargo and the proceeds of the sale of a ship or cargo, within the
; jurisdiction of the Court,
International Carriage hv Air
The Carriage by Air Act 1972, givesstatutoryJbrce jn India to the

Warsaw Convention and the
Hague Protocol relating to international carriage by air.
International Carriage means carriage
_
^ t en.twpj:qunhies who are signatories to the Conventionjj
^ ^ ^ ^^
pj dthou L
L «
b
b-
i

>• 3*
>»
ci
journey, andjilsp^covers a situation if such stop is in a country which is nnt n signatory to the
,
Convention.
An action for damages against a carrier has to be filed at the option of the plaintiff either where
the carrier is ordinarily resident or has his principal place of business orJiasjarLcstablishment
=<* .
where the contract was made, or at the place of destination If there has been a successive
,
carriage, unless the first carrier has expressed assumed liability, the suit can only be filled against
the carrier who performed the carriage during which the accident delay occurred.
- a
Guardianship Proceedings
•* _
Under the Guardians and Wards Act 1890, an application fpr the.appointment.of a
guardian of
ily
the person of the minor can be made in the Court within whose jurisdiction the minor ordinar
* resides, and in the case of the appointment of the guardian of the property of minor
, either in the
Court within whose jurisdiction the property is situated or the minor resides (S.9 of
the Act). The
same rules will apply in the cases of Hindus.
,3 Matrimonial Matters
s* In India different laws apply to marriage and divorce depending upon the religion
of the person,
nce with the provisions of
£ and Courts exercise jurisdiction to grant matrimonial relief in accorda
the applicable law.
Restraining Foreign Proceedings
£ Indian Courts undoubtedly have jurisdiction, if the defendant is

within jurisdiction, to restrain
r: him from filing or continuing proceedings injforeign Courts.

Although the Indian Court cannot
compliance by proceeding against
£t directly.compeLcompliance with any such order, it can /Ensure
the dcfendant. in_ contempt if he violates the order. A Court would
, however, only do so ifit came
us oroppressive and wovdd
I
fl
j
to the conclusion that proceedingsjnthe foreign Court were vexatio

£t not do so if the proceed ings could be better conduc ted in a foreign Court. It, would
Court jf jt :ameJ oJhe
,
concl -i
^
fl
I
appropriate cases, stay suits within jurisdiction in an
Indian j
^
t that proceeding in the foreign court would better serve the ends of justice . This was do ^ I
cases by the High Courts.

)
In Oil and_ Na( ural Gas Commission v Western Co. of North America {AIR 1987 SC 674) jthe
/
_
i
__
SuflcnneCgurt restrained an American company_from proceeding witha suit Ttledinjjew York
s_eekin£ jQ.cpofirm awards made in India in a dispute governed by. Indian law2 as Indian Courts
_
had exclusive jurisdiction to consider the validity of such awards under the Arbitration Act 1940.
The Supcrme Court reiterated the position in a later judgment ( Modi Entertainment Network v
WSG Cricket Pte Ltd. AIR 2003 SC 1177) laid down the approach of the Court in such cases as
under:
“The essence of the ultimate objection is to enquire how best the interests of justice will be
served; whether grant of the auto suit injunction is necessary in the interests of justice.”
The basic approach of the Court is to ensure justice. The Court was considering a matter where
tile parties had agreed that disputes that may arise between them would be decided by a chosen
court and the observation, though made in that context, are, it is submitted, relevant in
determining when a Court ought to stay Indian proceedings on the ground of forum non
!
conveniens.
The court laid down the rules as under .
The court will grant anti-suit injunction bearing in mind the following principles: -
.
1 The defendant against whom injunction is sought, must be amenable to the personal
.
jurisdiction of the court;
2. If the injunction is declined, the ends.of justice would be defeated and injustice would be
.
perpetrated; and
_ _
3. T]ie principje of. comity- respectjbr the court in„which. the. commencement or
, , ,
fc;
continuance of action/ proceeding is sought.to be restrained- must be borne in mind
4. In a case where more forums than one are available, thej:QurtJii _exereise of its discretion
IIi
io^grant .anti-suit . injunction^wilLexaipine as to which is
(forum conveniens) having regard to the convenience of
_
the more _appropriate forum -
the parties and may grant anti -
:
!
S-uit injunction in regard to the proceedmgs
.which are oppressive or vevato or .. *

non Conveniens { Modi Entertainment Network v Jf'SG Cricket Ptc Ltd, AIR 2003 SC
1177).
No question can arise of exercising the forum non conveniens principle can arise unless the
^
necessary facts arc properly pleaded. { Mayat(z (UK ) Ltd v Own s and Parties, Vessel MV
Fortune Express AIR 2006 SC 1828).
These rules laid downby.theJSupremjeJIfourt after considering the decisions in England and
other Common Law Countries arc the rules that Indian Courts will apply_in bqth fqrumjton
-
Conveniens and in anti suit injunction situations.
Stay of Suits because of Forum Selection
As far as cases where parties have agreed that any disputes that may arise between them will be
resolved by the courts of a particular country are concerned, the law has now in India been
settled.
Agreements to refer any_ dispute that _ _ _

may arisejQ the courts of a country to which one of the
parties belongs, or the courts of a third or •neutral country*, are valid as they do not vinl
ifafrer
sections 23 or 28 of the ^
Indian Contract Act 1872: the rules of the CPC 1908 and the principle
_
that parties cannot by consent confer iurisdiction.on a court.which does.not.haye jurisdiction, do
not apply to courts outside India.
If the dispute relates to a contract, and the contract contains a clause providing that disputes that
may arise wiil be decided by a specified court, the approach of the court will depend on whether
such a specified court is specified as the court with exclusive jurisdiction or not.
In a number of cases, the High Courts held that even if the clause conferred exclusive
jurisdiction on a foreign court, the Indian court jetained
,
a discretion to decide whether it would
fc Mhe proceedings in India, and the factors
^^ it would consider were essentially whether the court
in India would , on balance, be a more or less Convenient court. In Modi
Entertainment Network
case, the Supreme Court has reviewed the law and the latest decisions in England and other
common law countries, and laid down the applicable principles.

e
21
fjuriticitio n clause . in a
contract ,.thej> asis
Where jurisdiction or a court is on the basis o . .
invoked .
-
the rccitalsjherc m , in regard to the exclusive or

of jurisdiction clause in contract
a
,
exclusive jurisdiction of the court of the choice of the parties jirc
not determ}n UYS.bttU6
^ lspSi ,
as to the nature of jurisdiction agreed to between the parties arises
factors, and when a question
true interpretati on of the contract on the facts and in the
the court has to decide the same on a
circumstances of each ease.
a
A couit of natural jurisdiction will not ordinarily refuse to
-
grant an anti suit injunction against
defendant before it where parties have agreed to submit to the

exclusive jurisdiction of a court
including a foreign court, a forum of their choice in regard to the
commencement or continuance
of proceedings in the court of choice, save in exceptional cases for
good and sufficient reasons,
contracting party to be
with a view to prevent injustice in circumstances such as which permit a
the circumstances or
relieved of the burden of the contract; or since the date of the contract
subsequent events have made it impossible for the party seeking injunction to
prosecute the
because
case in the court of their choice because the essence of the jurisdiction does not exist or
of a vis major or face majeure and the like.
The burden of establishing that the forum of choice is a forum non conveniens or the proceedings
therein are oppressive or vexatious, would teonjhe party so contending to aver and prove _ins
_
same. { Unique Pharmaceutical Laboratories Ltd v State Freight International Co (LLCO (2005)
6 Bom CR 829}.
The rules regarding jurisdiction clauses apply of course, only to disputes under the contract.
Proceedings under the MRTP Act, 1969, cannot be staved because of a jnricHirtinn c]ause in a
contract, which contract is alleged to offend the provisions of the Act. { Man Roland Drucki
machinen AG v Multicolour Offset Ltd AIR 2004 SC 3344}
Recognition and Enforcement nfPWmn judgments

: Tntlinn Law
1872» deals with the effect of judgments in rem.

r^§ — —
_
Section J 3: A foreign judgment is conclnsivr 3s tQjmyjTiattcLdirectly decided in it between the
.
same •arties or parties claiming under them except where the judgment:
( 0 Has not been pronounced by a court of competent jurisdiction:
(2) Has not been given on the merits of the case

or a
(3) Where, on the face of it, it is founded on an incorrect view of international law
refusal to recognize (where it is applicable) Indian law:
(4) Where it was delivered in proceedings which were opposed to natural ,

justice;.
(5) Has been obtained bv fraud: or
(6) Sustains a claim founded on a breach ofindianJaw.

presumed that the judgment has
If a certified copy of the judgment is produced, it will be
ry is established from
been pronounced by a court of competent jurisdiction unless the contra
. Secticnl 4 says that a
the record, or it is established that the court had no jurisdiction
the expression in the Indian
judgment would be a public document within the meaning of
ed copy u/s 78 of that Act v/ould
Evidence Act, 1872. The usual method of produc a certifi
ing
court along with a certificate of an
be to have it certified by the appropriate officer of the
,
officer of the Central Government as required u/s 86.
Section 44A
which can be executed are the.decrees of
_
Under this section, the decrees of foreign courts
superior courts of a ‘reciprocating territory as if it
* ‘ is the decree of the court executing the
temtQlies tifkd-10-be-as-such-by-the-Caitral
decree. ‘Reciprocating territodesLmeans. ^
in countries which on a reciprocal basis exsew
, te.
Gove rnme nt and mean s decree s of courts
Most count ries of the Comm onwe alth have been so notified. In
the decrees of Indian courts .
are available to resist
the
availa ble under sectio n!3
any such execution, the defences
execution_oLthS-decr££^

n *
Sgglwnm oflndianEvulety;?
__
1 « 7 / Jtidnmenls iniguuc
^
It is onc of group of sections providing where a Judgm ent otacou rLis
rclevanLevidenccJn
I
r
, a judgment of
a competent
livil that is
Kmlings .
declares any person to be
court which confers upon any person nny legal character, or which
person but absolutely, such
entitled to nny specific thing, not as against any specified
character, or the title of any such
judgments arc relevant when the existence of any such legal
person to any such thing is in issue. >
.
This s«tion Jtasto be read with section 44 which
provides that ?judgmentjvould.not. be
deliveredjUvasjota,compctenLcgur> .
i
conclusive u/s 45 ifU wss shown thet the courny .

hicli
or that it had been obtained by fraud or collusion.

is to file JL civil suit based on the
The mode of giving efficacy to a foreign judgment
judgment except in few cases where u/s 44A of CPC
,
1908, a foreign judgment can be
executed on the basis of reciprocity.
ft third pnrty. For example a person who
A cann
of an American court divorcing X from
married * X * could not contend that an earlier order
Reddy v Kamini Reddy AIR 2002 Kant
her then husband was not enforceable. ( Deva Prasad
356).
the result of an adjudicating process
A decision of French regulating authorities which is not
g Pvt Ltd (2005)5 SCC 465)
cannot be enforced as a judgment. ( Technip SA v SMS Holdin
An interlocutoi leroj jn.c I®

niam v
is not a foreign judgment which can be enforced u/sjjj, { Ramakrishna Balasubrama
Ms Priya Garesan AIR 2007 Mad 10) .
tion.
It is the adjudication of the suit that can be enforced, not the reasons given for adjudica
( Brijlal Ramjidas v Govindram Gordliandas Seksaria AIR 1947 PC 192)
The only defences to a suit on a foreign judgment were those set out in section 13 and if .
.
those defences are not attracted, the judgment should be enforced ( Roshanlal Kuthalia v RB
Mohan Singh Oberoi AIR 1975 SC 824)

These observations have to be read in the context; the general rule excluding the enforcement
b'
of certain claims based on foreign penal or revenue laws would, of course, be applied if the
rules are attracted: likewise judgments opposed to public policy would not be enforced.

c — .
Law of Property
& H5
^^
t?/ V ere the immovable properly is situated outside the
Immovable property
EC / EFTA States, the old traditional rules apply to the effect
.
mat English courts have nolurisdiction to try a v action for the old rules
^
jurisdiction under the '
detcrn\in.itiQn Qf _Litlc. to. or the light to possession of, any

,
immovable property situated outside England irrespective of

__
!be parties domicile and residence. Such an action must be
.
trieclin the courts of the lexsiti' s
This rule is subject to s 30 _CIIA 1982 whereby English
*
courts haye juiisdictiaruto entertain proceedings for trespass
to, or any other tort affecting, immovable.property_ situated
c*
outside England.
~
CTwo exceptions )toithis rule are applicable in relation to the
enforcement of a personal-obligation to the plaintiff and in
relation to the administration of trusts _or_ cslal ?s in England . In
.
such cases, English courts have the power to try the action
5 =
though the property is situated oulci le Zr gland. *
c
Where the immovable ’ property is situated within the Jurisdiction imdur the
^
,
exclusive jurisdiction toIhe courts of the place where the Q

property is situated.
.
This exclusive jurisdiction does r ot, however , cover c
disputes which have as their object tenancies of immovable
property concluded for temporary use for a maximum period
of six consecutive months. Insuch instances and subject to
some qualifications, the courts of the Contracting State in
which the defendant is domiciled shall also have jurisdiction.
c
As a general rule, the law of the place where the property is Choice of law
situated determines questipnS -oLbothformal ana essential C
validity of transactions relating to immovable property. .i
The lex situs means the whole of that law including its
conflict of laws. Therefore the doctrine of renvoi operates in
this context.
Un1ess a _ person has capacity to transfer or to take
immovable property by the lav/ of the place where the
property is situated, the transfer v. ill not he valid.
Here the question relates to the obligations of the parties under Validity of the
a contract, the object of which is to transfer immovable contract to transfer
property. immovable property

1
&
Choice of Law in Tort
IVhcrc a tort is found to have been committed in England,

English law applies, and where it is
found to have been
committed abroad, the rule in Phillip iLEure applies.
^
English courts, when determining
the place of tort in the Place of tort
choice of law context, have applied the same basic test used in
relation to the old Order IT r l(l)(h) on urisdiction, whichJs
^
the question of where in substance the cause of action arose. _
- -
t 1,0 Uci * £04
In relation to nT
variousways to the ^ nee
at a tort was held to have been
committed in the place where the goods ^
\
j
were manufactured,
^
In relation to( efamatiop,> the tort has been held to be
committed in the country where the statement was published.
^
As for fraudulent misrepresentation made by
^
instantaneous communications, the toit has been held to be
committed in the place where the message was received and
f
I
j
Yj
u.
acted upon.
In the context of inducing a preach of contract) the tort was
said to have been committed in the place where the breach of
contract and the resulting damage occurred.
Where a tort is committed abroad , the double-actionability

_ .
_ action; 1. and it
must r othave been justifiable by the law of the place where it
.
The ftfle in. Phillips v
Eyre
was committed.
the_effect_ that.th(LicrlinusLalsQ-be civilly actionable. in.the

. ,
place where it was committed..

An exception to the general rule seems to have been
adopted in favour of the application of the proper law of tort,
though great uncertainty surrounds its nature and extent.
For. mu; ion; Scope of the double-

-01 actionability rule
same defendant in both jnricdirhVn <;
Equally, the plaintiff must be the same in both
jurisdictions.
In relation to ontractual defer: reDmninst claims in tort, the
^
law is far from clear and settled. Such defences may sometimes
be used so as to negate liability in tort.

-
c
c
<
Certainty, clarity and justice were the main reasons for calls for
reform.
<
In 19S4, the Law Commission published its Consultation Paper
No 87, whereby recommendationS-as-tQ_ reform v ete _
proposed . The main proposal was that the first of the ^rule
two possible
‘
models for reform.

__
^
Ododel prevides tha tâs a ggne ral juJe^the,t pUcableJa y
exception in favour of the proper law. ^ ^
> tod el > rov > r the proper law of the tsic
rule, ie the law of the country where
had the closest and most real connection at the time of the
occurrence ot the =
These recommendations were rp-pxnminpc hy tha Law
^
Commission in their Report No 193, where a modified version
of Model 1 was proposed . If adopted it will promote
uniformity and discourage forum shopping.
Under the modi ed prc~, jcaUm case cf pc vonal in / or
^
( jdamage to propertyjthe applicable
. !iw lslKriaw~onEeplar >
where the person or propcrty was whenJnjury or daflpg
^
^
accrued In cease of deatj£)it is the law of the place where the *

deceased waT when thefatal injury was inflicted. In all other
cases, the applicable law is the law of the territory in which the
most significant elements in the sequence cf events occurred. \
As an exception, the applicable law is the law cf the place
with which the tort has the most substantial connection.
I

V*
Marriage
Where one of the parties docs not voluntarily consent to the Meaning and
marriage . the marriage will be_dcclarcd invalid.
, definition
The union must be of one biological man and-one
biological woman, otherwise it will be void.
Polygamous marriages when celebrated in a country which Polygamy

allows polygamy have come to be recognised in English law
_
for most pujp Qses^.such as matrimonial relieLproprietary
1 rights arising out of a contractual claim, legitimacy of children,
social security, and succession.
A potentially polygamous marriage can become monogamous Change in the nature

on the happening of an event, such as the birth of a child, of the marriage
where subsequent legislation which prohibits polygamy is
adopted in the country of the place of celebration; where the
polygamous ceremony was folic .yed_ b y_.a monogamous
.
_
ceremony; or where the husband toa potentially polygamous
marriage acquires a domicile in.a couiUry_ which_does nQ _t
permit polygamy.
Where a marriage was celebrated in a polygamous form,
but neither party can under their personal law take another
spouse, then the marriage will be regarded as monogamous.
. As a general rule, capacity to marry is governed by the ante - Capacity to marry

nuptial domicile.QLeach.oHhe parties imrnediateiy.befbre.the
marriage.
Three exceptions have been adopted:
• The validity of a marriage celebrated in England between
persons of.whom. the. one has.an .English, andjhe otl >er a
foreign,.domicile is not affected by any incapacity which,
voii^ h i'
though.existing under the law of such foreign domicile .

.
does not exist -Under the law of England
9 Where the validity of a divorce or annulment is recognised
in England , the fact tharsOClrdivorceofahnulment is not
^ ^
recognise elsnwhere-WiU-aoLprprlnrie either papy tnjho
-
-
marriage from re marrying in England or cause the re

, -
manjaggj)f.either pjtrlyTtQ be treated as ."
Jnvalid
• -
Where the prohibition on re marriage in the ~country pf
domicile is penal in nature, then the Eh£lteK court will
ignore it.

\ V
>
>
A * •» -
prr,cral rule, th*« « ddrrr.ir.r l by ?! r \* w ‘ t r '
' l /
» crlrbraTifwv, but subject to tbxre crcrptfcra.

• cnrrcular rumagr*.
£ *
^tifcrjo. xnir. -*
• CT »Ti*iC*t r j n.^rjv?t
« En g frrciKl >
£
Characterisation Th* cmrrat ruk is flat 1
a aaStofi
^
to ;
«a
ss^^ ssSssffisSs
.iggT
^^
3 c :iia !j5d.
^ .
(J»tmmr. kttmrf , surround ? th <» b*u* of t ick of
pmrfol errrarr-t Caw U*< teres fc> cUwi/y such an bsu« i >
aneri Ibrsv.
Hie Incidental The c».aa Jnati(so pi <a>«* U** tfTwtfrat** that tbe incidental
*
1 jrstion <f »nJir>edor* r»r« attract a r*«<fumoI ru!*. Each c*3i ti.
gt
^wwn llmi

5
*(!
• Matrimonial Causes and Financial
Relief
The English :ourt wi

pjgccedjngaJoiLdivQrctLQr. judidaLseparation-iiLeithet oL the Jurisdiction indivorce
_
in England at.the time.cf the proceedings.
_
Pirties_ tpJhe_rnarriagQ_were.domiciled or.habitually.resident
- and legal separation
) cot Stay of the

l/ W\ appears thatproceedines for diynrrpnr nujlify in rpspprf -nfthp
.
proceedings
^ 1 1^^
* marriage are pending elsewhere in the British Isles; jhe
'
*ft I
.
Partjes tQ he marriage have co-habited after its celebration; the

' place of *
residence at the date of those_proceedingsjvas-that-of
.
\ other jurisdictiQn than inJhe-British Isles: and either party was

. -
habihrallyjggjdeniin that jurisdiction for one year ending with

the date on which they last resided there together.
A discretionary stay may he granted hy thp English rnnrl
'
t- where it appears that anv matrimonial proceedings capable of
HA) affecting tTtp* valirbfy_ pf thy Tn -. rriagpiruquestion-are pending
Jrr j / i.n another jurisdiction^The applicable test is that of the
hpiliada.
Neither divorce nor judicial separation proceedings provoke.a Choice of law
Englishhw^
An English court has jurisdiction to entertain proceedings _for Jurisdiction in nullity

nullity, if either party was habitually resident for one year_or
domiciled in England , or if either of the parties died before
that date and either was at death domiciled in England or had
been habitually resident for one year ending with the date of
the death.
_ _ _
A nullity decree may declare ajnamage eithenvoid or . - -
voidable.
The applicable law in nullity suits dependsjon the Choice of law

classification of the relevant issue, ie whether ifiTan issueof
formal validity or an issue of essentiaTvallchty .
Lack of parental consent has been classified as an issue of
fonjh
Tp rplatinn
_
i
to defects affecting consent, _sach asiraud,

duress, mental illness, and so forth, the weight of judicial

\
q\ g
)
a
!
I opinion seems to favour reference
of the issue of consent as
)
*
on£ of essential validity, and therefore subject to the law o
domicile.
R . In relation to physical defects or incapacity, the position is
unclear. Such defects have been classified as issues of form in
some instances, and as issues of capacity in others. rvi
Recognition of foreign Where a decree is granted elsewhere within the British Isles,Jt
livorces, legal will be recognised unless not granted by axQurt
eparations and
nnulments Whore a decree is granted.elsewhere h.y
.
_ _means_of
.
eilher_of _the parties
»
Wj v reside!
domiciled or a national of that country.
.ecognition of extra- An extra-judicial divorce, if pronounced in England, will not
ldicial divorces be recognised by English courts.
If, on the other hand, it was granted abroad,Jhen it wiilbe
recognised if it is effective underJbeJaw of the countryjffngre
. . ^
<
it was obtained . and at that date, each-partyLtQ_ihO-Xr,ani?ge
.
was domiciled in that country, or either party was domiciled

in that country and the other was domicilecLin-a-cauntry
whictTrecognises such decree, provided that neither party was
habitually resident in the UK for one year immediately
preceding that date.
rounds for non- A foreign decree may be refused recognition on policy

cognition grounds, such as want of proper notice, want of opportunity to
take part, the absence of an official document, or contrary to *
rtancial relief after Where the foreign decree is entitled to be recognised in
'erseas decrees _
England, either party to the mamag§jnflay apply_ to . the court
for an order for financial relief under the Matrimonial and
Family Proceedings Act 1984, provided that either party tnjh»
marriage was habitually resident in England
for one year
ending with the date of the application; domiciled in England;
or had a beneficial interest in property situated in England.
Prior to making the order, the court must consider
all the
relevant circumstances of the case and be satisfied
would be appropriate to make such an order.
that it

( ru
\ '
Clioice of Law in Contract
WhtTP the parties have made an express choice of law The commonlaw
_
provision in their contract , this will normaIly h£ upKcicl _ approach
_
provided itls made bona fide and lepaljjtnless it _is_ against
public policy_or unless this lav / was chosenJo evade the
,
provisions of an applicable lav£

Wherejhe parties have not clnsen a law but a forum / there
may be strong indications to apply the law of that forum
unless the contract is closely conr.ccted with another law.
' ^ I In the absence of any choice rf law or forum, the English
ccmLappliea-tl\2_ proper law of the co:..‘ met, ie the lajwjvith
rV® | -
which the contract h. <; it ; rlpsest and most real connection.
^
Ifjhe dispute relates to the formation of the contract,_Uic
court applies the ^ putative proper law/ ie the would-be proper
law had the contract been effectively created.
This Act implements the Rome Convention of 1980. It came The Contract'
into force on 1 April 1991. ( A > plicableT.a\v) Act
_ _
Where the parties have made a choice of law in their
contract, this will _be upheld unless, where all the other ^ l^^/
^
relevant elements are connected with one country only, that LA c y
choice prejudices the application.ci.that.country's mandatory

rules,-
Where no such choice of law is made, the contract will be
governcd.by thc-law of the country with which.itis_most
closely connected.
It is to be presumed that the contract is most closely
conm. ‘ ie COUn TV W PrP f
thejrharacteristic performance_oHhe ortr
, .
t
.
^ ^^
residence at the time of the conclusion nfthp contract.
wper
"
_
_ e , however, the subject matter ofjhe contract is a
-
ngnt m immovable property then the contract is presumed a , (, u J
^
be most closely connected with ^ the lex situs
.
to ' T '
v . Contracts for the ca rriage goods arg.pL sumed to be
^ ^ ^
hjhe_country which the carrier
/1
l
$ «
hasJusprindpaLplaaLoibusiness iji ®
business of the consignor. 1
These presumptions may to rebutted if it appears that

the
contract is more closely connected with another country.

i
Special rules on choice of law are also made in relation to
consumer contracts and individual employment contracts.
In general , the application of _ the law identified by: the

Convention must not restrict the application of the mandatory
rules of the forum which cannot be derogated from by-
contract
Equally, the application of the proper law may be refused
if it is manifestly incompatible with the . public policy of the
forum.
i
Material validity Issues of material validity are to be_goyemed by the law which
would govern the contract had the latter been validly created. .{ •.
j
Formal
- -
-
validity
it.'
. v; V
: '
? . valid if it
* •
' ’ or ::v.i cc'ui . irv or !ho v.idgntifedbfjhe
^
I?: m
:
*
:
nm
- p; rV \-pEer-
^ ^ 4hefc2
o cl;; V
^ '
)
l
^ ^ ^ lLdlty qf
'
^ ^^ SS sumer ira i iAubjSff'to

-
= V- *
’
^:
'
'
"*
. FormaWaUdity of contracts for rip* t •
:
i i pfacmBlteffiHSTtoJbe i \ ;
:
fia :
i performance .’ ; T 1;
rM > : >-
1 '
. VV ' \i - •• •
- • • \\ ; , y ;
.
:> y i
-V \

.
COM I K roi i.AU'S
e ) Da mages
( l '. Sn - .
tt ft ESI II.UX T PlA V' j
Judgements in I nreign currency
^
gjF.vecution
5. Proof offorcign la«
l or coincidence sale, it o planned to tuxangc the contemrsubjcci of conflict of h Exclusion of foreign law
Ian.dprivale internalion;ti Ian in six primate unite Each unit contains a detailed chaptci V Domicile.Nauonalii > and Residence
-
plan comprising of various sub topics. In this course it is also proposed to pul focus on
Indian Private International Ian rules
ajDomicile of Origin
b ) Domieile of Dependence
cjDomici 'e of Choice
-
I 'nil 1 iJProof of Domicile of Choice
ii ) Residency
Introduclion iiijlntention
1 Nature and Scope of Private International Ian djAbandonment of Donveile
a! Title of the subject elDistinclion between Nationality Domicile
2 Public Ian and Privale law -
f ) Domicile. Nationality and Residence Indian Ian
3 Public International Ian and Private International Ian
4 Ranee and Difficulty of the subject
5
#i
Technical Terms
Bases of Conflict ol Ians
-
Unit Ill
7 Functions of Private International Ian Jurisdiction of Courts and Foreign Judgements

aUurisdiclion
bt Recognition and Enforcement of Foreign Judgements
c )Choice ol law . -
A Jurisdiction of CourlS English law
X Unification of Private International law -
B. Jurisdiction of Courls lndian law
alCml and Common law systems .
C Recognition and Enforcement of Foreign Judgements
blUnifi cation oflntemal Ians
ciUnification of Pnvate International Ian A. Jurisdiction of C.ourts- English Ian
9 Indian Private International law
I Jurisdiction of English Courts in Commercial Disputes under Iradttional
l 'nil ll- Rules
Preliminary Topics
.
ajDefendar t picsent within thejurisdiction
Individuals
I Classification or Charecicrisation
a Classification of the Cause of action
^
iijCotporations
Classification of a Rule of Ian
b i. * iii )Partnerships
2 Incidental question viJSubmission to the jurisdiction
a. Elements of an Incidental question bJDefendant out side the jurisdiction
ijJurisdiclion and General rules
a Depecaec
2 Renvoi ii )Contract
a. Doctrine of Single Renvoi iiilTort
h. b ) Doctrine ofTotnl Renvoi / Foreign Court Theory ivjProperty
3 Substance and Procedure 2.Jurisdiction under ilte New rules
a a il .imitation
b b ) E » idence
. ajDonncile •
bjlnlerpretation ol the New rules
'
c cJPames cjScope of the New rules

d . Nature and Extent of remedv djGeneral basts of jurisdiction
eJSpecial jurisdiction
• .v
c
V
JtA gfnTFTM yl'Silil -
1
i T/ ' k U ij "'
' Jk ^
^ ^ * -=-
1
jv
- •-
> »
". ",
#

QComract .
C Recognition nd Enforcement of Foreign Judgements
*
s)Maintenancc
h )Ton •. English law
i )Civil claims in criminal proceedings I.Introduction
j (Branch or Agency 2.Recognition and Enforcement at Common law
li(Trusts a (Requirements for recognition and enforcement
( (Jurisdiction in matters relating to insurance b(Jurisdiction of the foreign court
m (Exclusive jurisdiction c (Residence
n)lmmovable property d )Submission
o)Companies and Associations eJFurther requirements for enforcement
p)Public registers i)At Common law
qjlntellectual property ii)The Foreign Judgements(Reciprocal Enforcement )Act.l933
r)Enforcement of judgements ((Defences
sJSubmission iJFraud
tjlunsdiction within UK ii) Contrary to natural justice
iiiXTontrary to public policy
3 .Prevention of Forum Shopping: Stays. Injunctions. Lis Alibi Pendens, and iv)Seaion 32 of civil Jurisdiction and Judgment Act. 1982
Jurisdiction Clauses g)E C and EFTA Judgments
a )Forum Shopping i)Mechanism for enforcement
b)Stay of English proceedings iijDefuses
i)Forum non conveniens iii)Recognition and Enforcement within U K.
ii (Lis alibi pendens
iii ) Foreign jurisdiction clauses •Indian law
c )Restraing foreign proceedings
I Statutory Provisions on India
B. Jurisdiction of Courts- Indian law a ) Enforcement of Foreign judgements ( Sections 13 <L 14 of CPC)
1.Suits by Alien enemies b) Execution of Foreign Judgments (Section 44 - A of CPC )
2 Immunity from suits c) Effect of foreign Judgments (S.4I of Indian Evidence Act )
3 Secuon S6 of CPC and International law
4 Statutory provisions relating to jurisdiction in India 2. Indian Decisions
ajCeneral provisions a)General
b)Special provisions bJProof of Foreign Judgement
i)Admiraltyyjurisdiction cjConclusiveness of Foreign Judgement
ii) International carriage by air d)When Foreign court has jurisdiction
liiJMatnmomal matters . e)Judgements on merits
((Judgements which disregarded International law or Applicable law
SJurisdiction oflndian courts: Immovable property
6 Jurisdiction in personam -Position in India g)Judgements contrary to Natural Justice
a (Jurisdiction to restrain the defendant from filing or continuing proceedings in h(Judgements obtained by fraud
foreign cour i) Judgements sustaing claims founded on breach oflndian law
7 Jurisdiction in rem j) Judgements opposed to Public policy
k)Fo:eign exchange laws
-
8 Decline to exercise jurisdiction or grant anti suit injunction
3.Recognition and Enforcement of Foreign Awards ( The Arbitration and
9. Forum selection and Arbitration clauses
Conciliation Act,1996'
I
1
c )Capacity
d)Cfl'«cl and construction ofa contact
e )Diichaife
Law of Obligations Olllegalily
ilContracts governed by English law
( Contracts and Torts) ii )Coninici!not governed by English law
8 Remidics and Damage!
.
A Choice or last in contrncl
B. Choice of law in Tort
'Indian law
I General contracts
2 .Specific contracts
Choice of law in contract
Choice of law In Tort
'English law '( English law

.
1 Introduction
» )Piopc law doctrine
b)llarmomsation
Introduction
2 At Common law
a)Gencral rules
c )Rome Convention b)Whcre a ton takes place
{ (Miscellaneous questions arising in ton claims
2 Rome Convention General Considerations
aJScope of the Convention d)Dcfamation Negligent misstatement
((Exclusions e)Maritimc Torts
iijUmversal application OTorts alleging infringement of IPRs
bjlntcrpr elation 3 . Statutory Reform
c (Exclusion of renvoi
4 Reliefs
3 Determining the applicable law
Mndianlaw
alApplicable law chosen by (he parties
I Jurisdiction of Indian Couits
i(Express choice
2. Applicable law
b )Choice demonstrated with reasonable certainty
3. Where a tort lakes pkace
i)Dispule-resolution clauses 4 IPRs
ii )Standatd forms SMaritime and Aerial Torts
ru)Previous course of dealing
ivJExpress choice of law' in related transactions
vJReference to particular rules
vi )Oiher considerations
Unit V -
c )Tbe distinction between implied choice and no choice
dlSplittmg the applicable law Family lasv
e)Changing the applicable law
4 Applicable law in the absence of choice
5 Limits of the applicable lass
.
A Marriage and Matrimonial Relieves
B. Conflict of Ians Rules Relating to Children
a)Mandator> rules
b)Public policy
6 Consumer contracts and Individual contracts cf employment
Marriage and Matrimonial Relieves

7 Particular aspects of the contract
a)Material validity •English law
b)Formal validity
Os
4
' 1/
• jfitutnvci'Gi ,

v *
CO
ajEru' lish adoptions
1 Nature ol mamase blRecognition of foreign adoption?
2 I omul validm of the marriage i (Convention adoptions
alMjrruges m enemy territory
blMamagcs on ships
tiJOvcrscas adoptions
( Recognition at Common law
A- OPresumption of mamaec ^
4 . Guardianship
3 Capaciti to mam a )General rule
a Consent ct parties
5 Pel' garaom mamages bJJurisdiction of English Courts
c)Foreign Maintenance and Guardianship Orders
'
-
0 bame sex relationships and Transsexual marriages
Doorce and other marnmomal relief
"Indian lair
|
* adi« n
Legitimation
( . Legitimacy and
1 Cc«ce
^ . marmge
of
2 Fonnal \ a’iwir> a )Legitimacy
3 Presumption of mamace bJPresumption of marriage
4 Capaco\ to marry cJPresumption of Legitimacy
atSatu&xy position dJLegitimation
bOmtians 2.Adoption
C )Hmd*3 3 . Guardianship
aJForeign Guardianship Orders
cjroregn mimaes
5 Corse* of panto
e Potyrzmoas mamages
7 Divorce and ether marnmomal reliefs -
Unie VI
alFrnS Courts
tCnsnan law
-
c>Kini law
IjMslim law
Lasv of Property
ejSperu! Marriage Act 1954 •English law
ffore:pi Marriage AaJ 969 I . Movables and Immovables
tJsrodctioa 2.Transfers intervivos
lilxisdLCXion of High Court
- ajlmmovables
-
ilw aiioion under Specific Relief ActJ 963.
9 t*ar£ r noe in Indian law
^
bJTangible movables
i )Lex situs rule
ii)Exception to the lex situs rule
c(Intangible Movables
i (situs of intangibles
ii )Choice of law rules
•Attainability
CMfi»tt oflawj Rut« Relating t 0 Ch;id itn
•Validity of the ,assignment: Contractual questions
•Effect of the assignment: Proprietary
•Logtish Uw d )Govemmental Expropriation questions
1 Imroducncjn 3 . Matrimonial Property of Property
Vt
2 Legiumar. and Legituiuci&n a )Applicable law
3Adoption i )Movable property i
ii)Mutability or immutability * * 1
iiillnimovable property
I
*
!
.
\
iJ
^4 i
bJAntenupiiil Contracts
CjMatrimonial Propcnv rights and divorce
âSuccession
) Introduction
bJWills
i )Movables
•Choice of law
•Capacity
•Formal Validity
•Essential Validity
•Construction
•Revocation
-
Foreign Immovables Choice oflaw
•Capacity
•Formal Validity
•Essential Validity
•Construction
•Revocation
c) Intestate Succession
i ) Movables
t •
iillmmovables
d )Renvoi in succession cases
e)lncidenlal question
•Indian law
I . Movables and Immovables
a )Tangible movables
b )lnlangible movables
c )Shares and Bonds
d )Negotiablc Insttuments
2 Actions of foreign governments regarding property
3 Effect of marriage on property rights
4.Intestate Succession
a )General rules
b ) Law applicable to persons
i )Christians
ii ) Hindus
iii )Muslims
5.Testamentary Succession
a )General rules
b ) Law applicable to persons
i ) Hindus
ii ) Muslims
iii )Chrisiians
rO
t
••
*
»

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NATURE AND SCOPE OF PRIVATE INTERNATIONAL LAW to

Conflict of laws or gliyalfiJnlfiinatiojal In

in connection with these three matters.

PUBLIC AND PRIVATE LAW:

PUBLIC INTERNATIONAL LAW AND PRIVATE INTERNATIOANL LAW

According tc( SjTRobert Phillimore) rights arising under PublicInternational .

RANGE AND DIFFICULTY OF THE SUBJECT:

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BASES OF CONFLICT OF LAWS:

norma l meanin g of courtesy it is scarcely consistent with the

propounded is that foreign lawis

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following two circumstances:

) , ' RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENTS

Court comesto the conclusion that the foreign judgement Is a judgement

which an Intern ationa l union for the protection of the

) was the conclusion at the Hague inl9S4 of a

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In addition to the conventions mentioned above, many similar arrangements hav£imen.made

Belgium. the Netherlands and

INDIAN PRIVATE INTERNATIONAL LAW:-

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During the British period. India developed contacts

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An equally common title.to..describelhe

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At this stage, a second type of classilicalion has to be done in order to

A. Classification of the Cause of action

According to Cheshire and North , Private International Law:

appropriate in a purely domestic case”.

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question as classified by the court. For instance, in an action brought

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2 Procedural Rules: lex fori governus:

ai£~ ClUSiVC y dctCrmincd bV thc lex comae. On the

A procedural rule of the foreign law will not be reco _

This kind of problem is illustrated by the controversial case oWiiclen v Ogden.

( Below 25 years, a son cannot contract a

FrencVproceduraUujes areJnappiicable. Hence the court ignored the Frenchjmkof

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A - problem related to that of the incidental question Peking and Choosing)

into two sep to govern different parts of theircontract

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an_ iinjust and distorted

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Application of ( lie lex causae: The Problem of Renvoi

Hence, the issue of renvoi arises when a rule of conflict of

country referred to bv the

-3 referred by its own choice

the movable mopertiesjwere

movable pro ties thereof

• his is also known by the names of ‘Total renvoi or English

The operation of this form of renvoi is illustrated in 8e hnes / ef ) _

Annesley. Anncsley was a British subject domiciled m

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llow would a French judge decide the question

English law.Jn _other_words. the French judge

Foreign Court theory: Criticisms

Cheshire points out the following objections to this theory:

b) Foreign court theory amounts to the complete surrender of the English .

jcFThc IbreigiLCOmt-docuine- is difficult to apply [his theory requires the F

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