Recognition of foreign judgments under

Private international law - A Study

1. Introduction:

In this era of globalization, Private International Laws have become a necessity.

The need for Private International Laws arises when there is a foreign geographical
connection with the case, or there is some presence of the foreign element. This
foreign element can be anything ranging from a contract between two parties of a
different nationality to a tort committed with foreign influence. In such cases, the
concept of Private International Laws is also called ‘Conflict of Laws’. In such cases,
the court undertaking the case has to apply the principles of private international laws
along with the domestic laws. Almost all the nations have well-codified laws and a
system of conflict of laws.

For understanding, let us see this way that the world is divided into different
territorial units, with each unit being governed by its specific laws considering
contracts, sales of goods, torts, etc. A person who belongs to one such territorial unit
may travel to another unit and get engaged in the contract. When he comes back and
an issue regarding contract arises, then the court with jurisdiction has to apply
international private laws along with domestic laws.

2. Meaning of Private International Law:

Private international law can be broadly be defined as a branch of national law,

which is administered by the court of the particular nation or land in the cases which
have the presence of any foreign element.

Private International Law can also be understood from the functions it performs.
Broadly speaking it helps in determining the laws, foreign or domestic, to be used in
the case which arises out of private legal relationship along with the presence of some

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foreign material. Further, it also helps in determining the maintainability of the case,
telling about which courts have jurisdiction to settle the dispute.

3. Doctrine of Comity as the foundation:

The basis or Foundation of Private international laws arises out of the need of
internationally compatible legislations. It has also been suggested that the Private
International Laws are based on the Doctrine of Comity. The doctrine of comity refers
to mutual understanding between various states, comity is nothing but the accepted
rules which are mutually acceptable by different states and apply the same with
cooperation, giving ease to each other.

One of the finest examples of recognition of comity is Section 11 of the Foreign

Marriages Act, 1969. Through this Act, permission has been given to Indian
diplomatic officers and consular officers to conduct marriages of persons (out of
which should be an Indian Citizen) in a foreign land. It also provides that no such
marriage which is prohibited in that particular country cannot be conducted. As per
the Joint Committee of parliament, this rule was enacted to remove any problem of
incoherency with International laws and comity of nations. Doing so serves another
purpose, as desired by the parliament, marriages under this Act are more
internationally acceptable.

4. Traditional Rules for consideration:

 Lex Loci Celebrationis

This rule governs the formal validity of the marriage, the meaning of lex loci
celebrationis is ‘Law of the place where the marriage takes place’.

 Lex Domicili
Lex Domicili governs the capacity and validity of the marriage of two parties. Lex
domicili, which means the law of the domicile, at the time of death of a person also
helps in the succession of movable property.

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  Lex Situs
Lex situs help in governing the matters related to the transfer of movable property.
Lex situs which means the law of the place, not only helps in the succession of the
movable property but also helps in transfer of immovable property.

 Lex Fori
Lex Fori or Law of forum helps in the governance of the law of procedure.

 Lex Loci Deliciti

As the name suggests it means the law of the place where the damage occurred, this
rule concerns the commission of a tort. This is one of the important traditional rules.

 Proper Law of Contract

Contractibility or say the contracts between different parties regarding different issues
are concerned with applicable law also called proper law of contract.

5. Recognition and Enforcement of Foreign Judgments:

Code of Civil Procedure 1908, talks about recognition of foreign judgements. It

is present in Section 13 and Section 44A therefore it is necessary to analyse these
sections. Apart from this, it is necessary to know that Article 101 of the Limitation
Act, 1963 mentions that a suit on foreign judgement should be filed within 3 years
from the judgment’s date.

Section 13, Code of Civil Procedure –

This section deals with foreign judgments and mentions the instances where foreign
judgments will not be conclusive. Foreign judgments shall be conclusive in various
instances with the following exceptions:

 The foreign judgment will not be conclusive if the maintainability is

questionable when the judgment is given by a court which does not have
competent jurisdiction over the matter.
 The foreign judgment will not be conclusive in case, the decision of the court
was not based on the merits of the case.

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  If the case was undertaken and the decision was taken based either on the
misinterpretation or incorrect view of international law then also the foreign
judgment will not be conclusive.
 If it is found that proceedings did not consider the Indian laws applicable in that
particular case, then the foreign judgment will not be considered conclusive.
 For a foreign judgment to be conclusive it should be made sure that judgment
does not go against the spirit of Natural Justice. In such cases where the
judgment goes against the Spirit of Natural Justice then the judgment will not
be considered as conclusive.
 The two other cases, where the judgment will not be considered as conclusive,
are first: if the judgment has been obtained by fraud, and second: if the
judgment has been given breaches any of the present Indian laws.

Section 44A:

Section 44A deals with the execution of judicial decrees of courts of

reciprocating territories. Before we further delve into the section, it is important to
understand about the reciprocating territories. Reciprocating territories are those
countries or territories outside India which have been considered officially by a
gazette as reciprocating territories for the purpose of this section i.e 44A. The courts
of these territories whose decrease would be admissible are called Superior Courts.
The section apart from defining the reciprocating territories also define the meaning of
Decrees: which is referred to any judicial order or judgment by the superior courts, in
very simple language.

The key points of section 44A are as follows:

 Whenever a certified copy of a decree from superior courts, established in the

reciprocating territory, is filed in the district court then the same decree should
be executed as if it had been passed by the district court.

 Along with a certified copy of the decree, a certificate which mentions the
extent to which satisfaction or adjustment of the decree has been given. The
certificate should be a conclusive proof which mentions adjustment and
satisfaction.
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  While executing decrees as per the mentioned procedure the court must not let
it violate the clauses mentioned under Section 13 of Code of Civil Procedure,
1908.

6. Supreme Court of India and Arbitration and Conciliation Act:

Judgments of the Supreme Courts and High courts play an important role in
giving a clear finishing and proper interpretation of various laws. Similarly in this case
too the Supreme Court has given certain quality judgments regarding the issue of the
recognition and enforcement of foreign judgments. I will discuss one such important
issue enunciated by the Supreme Court in one of its judgments.

Relying on the ratio of the judgment of the case of International Woollen Mills
vs Standard Wool (UK) (2001 5 SCC 265) the Supreme Court in one of the recent
judgments has mentioned Section 13 Civil Procedure Code and Section 44A Civil
Procedure Code while deciding the case of Alcon Electronics Private Limited vs
Celem SA and another (2017 2 SCC 253). In this case, the Supreme Court ruled out
that the judgement of an English Court, which was being enforced in India, is a
judgment which is wholly based on the merit of the cases. The Supreme Court noted
down that in order to respect the principles of comity of the nations, which is the
foundation of Private International Law, the court must admit/accept the judgment of
the English court which has decided the matter on the basis of merit.

Even if the decision is an interlocutory order the judgment shall be given due
weightage, the only exception where such judgments cannot be accepted is when the
judgments are in violation of Section 13 of Civil Procedure Code. Therefore on this
basis, the court considered the judgment to be conclusive. Mentioning section 44A of
the Civil Procedure Code, the court also mentioned that execution of decrees of
reciprocating territories is permissible and England is a reciprocating territory, which
means that decrees passed by English Courts are admissible according to section 44A
(if decrees do not violate section 13 of Civil Procedure Code).

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7. Conclusion:

Private International law has become a necessity in this era of Globalization.

Nations are connected with one another. It is now evident how nations work for
economic prosperity through economic cooperation. In such pursuit of material
wealth, it becomes very obvious that there will be clashes between parties engaging in
the contract, not only in the contract but also other legal issues may arise. For such
issues, it becomes necessary to take help of Private international law.

As discussed in various statutes of Indian Laws have taken into consideration

the need for the comity of the nations, which forms the foundation basis of Private
International Laws. Various countries follow the traditional rule, whereas few
members of the European Union follow Unified Private International Laws. there are
various benefits that arise out of the use of Unified Private International Laws. The
law-makers and legislators should focus on rectifying the discrepancies and the
incoherency within the domestic law, in order to pave the way for a much larger
system of the Unified Private International Laws.