Private International Law (PIL)

DEFINITIONS:

By Cheshire - PIL is that part of the law which comes before play when an
issue before the court affects some facts, events, or transaction i.e., so closely
connected with a foreign system of law as to necessitate recourse to that
system.

By Dicey and Morris - PIL consists of rules which do not directly determine
the rights and liabilities of particular persons but which determines limits of
jurisdiction to be exercised by courts and also choice of law.

NEED FOR PIL:

PIL is required because every country has different systems of laws regarding
marriage, adoption, succession, torts, contracts, and like matters. Sometimes even
within a country, the laws are different. For example, Texas vis a vis Vegas.
Therefore if marriage means the same thing all over the world and the rules of
capacity and ceremony of marriage are the same in all countries, the question of
conflict of law between countries won’t arise. However, since that is not the case,
every country has a branch of law which resolves these conflicts. It is this branch
which is called PIL / Conflict of Laws.

PIL only indicates the governing law and jurisdictional/procedural questions. For
example, a court is called upon to determine the validity of a marriage performed
between an English-domiciled man and woman, the ceremonies of which are
performed in Vegas. PIL merely informs us that the question of capacity of
marriage will be determined by law domicile of parties but the question of
performance of ceremonies and validity will be determined by law of Vegas where
marriage was solemnized.

SUBJECT MATTER OF PIL:

Private International Law (PIL) 1

 1. In what circumstances the court will assume jurisdiction over cases having
foreign element.

2. If the answer to the above question is in affirmative, then whether the court
will determine the case entirely under Indian law or the appropriate foreign
law.

3. In what circumstances will it recognise a foreign judgement/execute a foreign

decree.

CHOICE OF JURISDICTION, CHOICE OF LAW, AND RECOGNITION &

ENFORCEMENT OF FOREIGN DECREE:
Unlike civil law countries, the common law countries include rules of jurisdiction
as well as choice of law within the scope of PIL. For example, Germany,
Switzerland, Finland, etc. They only focus on jurisdictional questions and when it
comes to foreigners and their choice of law, they have a separate law called the
law of foreigners.

1. Choice of Jurisdiction

Jurisdiction refers to the ability of a particular court to try and decide a particular
dispute. The procedural law of every country lays down that (in what matters
which court will have jurisdiction). These rules may apply to foreign law as well.
For example, summons will be issued under Order 5 CPC to Indian as well as
foreign parties; res judicata where a court will not have jurisdiction if a matter has
already been decided by a foreign court.

2. Choice of Law

It is the question as to which law will be applied to decide the suit - internal or
foreign. For example, a contract is entered in China between resident traders of
China and Singapore respectively for the supply of certain goods to Kolkata. Now
if a suit is filed in Kolkata then which law will apply - Indian, Chinese, or
Singaporean? Some rules are established in this regard in PIL - eg. immovable
property will be governed by laws where the property is situated (Lex Situs).

3. Recognition of Foreign Judgements

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 If a foreign judgement is from a competent court then the local municipal court will
be required to give effect to the same even if the foreign court determines a
dispute as per its own public policy. Local courts will not go into the merits of the
case and exceptions to this rule can differ in procedural laws.

WHY FOREIGN LAW IS APPLIED IN PIL DISPUTES?

Comity - Dutch jurist John Voet said that the comity of nations is as important
in PIL as it is in Public International Law. It means mutual regard and respect
among sovereign nations which is the basis of a just international order. For
example, the ‘Doctrine of Reciprocity’ is where nations recognise the
judgements passed by the courts of other nations in reciprocal obligations.
However, modern jurists do not agree with this view. According to Cheshire,
“The application of foreign law implies no act of courtesy, no sacrifice of
sovereignty.” In reality, the courts are required to do justice between the
parties and in doing so if foreign law is applicable the courts will apply the
same. Even if countries are at war / have placed sanctions on each other.

Necessity - Another basis of the application of foreign law is that it is

necessary for the determination of the rights of parties. So in the above
example of a Chinese contract, if Indian courts in Kolkata apply only Indian law
then the rights of the parties under the contract may totally get frustrated.

Justice and Convenience - It is the demand of justice that requires the

application of foreign law. For example, if courts in Egypt apply Egyptian law to
decide whether a son adopted by an Indian Hindu in India is his legitimate
child or not then it will be completely unjust as the Egyptian law does not
recognise adoption.

8/1/24

Graveson defines ‘justice’ as follows: “It is to a great extent a legal reflection of

ethical and moral values conditioned by time, place, and circumstances much as
the concept of reasonableness in common law is a reflection of contemporary
social values.” Graveson also propounded a subsidiary principle to justice. He
says that the court applies foreign law because its application is convenient i.e.,
out of two or more possibilities the law will select one and will follow the same. For

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 example, deciding a dispute with respect to property based on lex situs (where
the property is situated) is a matter of convenience as it is based on where the
property is actually located.

DIFFERENCE BETWEEN PUBLIC AND PRIVATE INTERNATIONAL LAW

PUBLIC INTERNATIONAL LAW PRIVATE INTERNATIONAL LAW

Deals with individuals and not

Deals with transactions
SCOPE states, but their disputes have a
between states
foreign element

Treaties, conventions,
Jurisdiction, choice of law,
international agreements,
SUBJECT MATTER recognition, and enforcement of
international judicial bodies and
foreign judgements
customs

Customs, treaties, precedents,

general principles of Municipal laws and local
SOURCES
international law, and writings of procedural laws
jurists

BASIS FOR Convenience - Cheshire;

Comity of nations
RECOGNITION Comity - John Voet

CONSEQUENCES Sanctions, non-recognition

Voluntary consent and other

ENFORCEMENT Domestic courts and police
diplomatic measures

International courts and

ADJUDICATION Domestic courts
tribunals

UNIFORMITY Uniform Not uniform

9/1/24 & 10/1/24

UNIFICATION OF PRIVATE INTERNATIONAL LAW

There are two modes of unification:

1) INTERNAL: Unification of internal laws of the countries of the world.

The first step in the direction of unification of internal law was the Bern
Convention of 1886 which protects literary and artistic works.

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 After WW1, the International Institute for Unification of Private Law was
established in Rome to unify the civil laws of different countries.

The Warsaw Convention of 1929 provides for uniform rules relating to the
carriage of goods and persons by air. It was amended by the Hague
Convention in 1955.

At the regional level, a successful attempt has been made by the Scandinavian
countries - Finland, Denmark, Norway, and Sweden - who have signed
conventions unifying several branches of PIL such as bankruptcy, res judicata,
and recognition of judgements and decrees.

In the USA every state has its own private law. To solve the conflicts arising
between these laws, guidelines were passed in the form of “Restatement of
Private International Law”. Although this is not binding on any state yet the
courts resort to it to resolve conflicts of law.

CEDAW Convention, after India became the signatory, the Indian SC in the case of
Vishakha v. State of Rajasthan 1997 referred to the CEDAW Convention to pass
the guidelines for POSH. The Indian Parliament subsequently passed the POSH
Act in 2013 with international law being reflected in its objects and reasons.

2) EXTERNAL: Unification of the rules of private international law - eg. air and
space law; 12 nautical mile rule

Only after 1951 serious efforts were started for the unification of PIL across the
world. The Hague Conference led to the establishment of a permanent bureau.
This has assisted sections from different parts of the world. They want to promote
the codification of PIl.
In 1964 through this bureau proposals related to the unification of rules of PIL
relating to adoption were accepted.

Some other conventions which have unified the rules are the Convention on
Choice of Court 1965; the UN Convention on Recovery Abroad on Maintainance
(1956 New York); the Convention on Jurisdiction, Applicable Laws and
Recognition of Decrees relating to Adoptions 1965; the Convention on Conflicts of
Law relating to Forums of Testamentary Disposition 1961.

Private International Law (PIL) 5

 Regional and Bilateral Attempts

1. Inter-Scandanavian Convention (1929-1933) series of convention

2. The Benelux Convention unified the rules of PIL

However international conventions can be a part of municipal law only when the
same has been recognised and incorporated in the municipal law.

BASIS OF JURISDICTION
In PIL disputes any court which assumes jurisdiction over a case has to first
decide the basic question i.e., in reference to which law the court is going to
characterize the factual situation so that it is able to reach a socially desirable and
just result. For example, the following are some well-recognised rules:

1. Capacity is governed by lex domicilii (common law country)

2. Formalities and procedures are governed by lex loci (Eg. where marriage is
performed is lex loci celebrationis; where a contract is entered is lex loci
contractus)

3. Immovable property - lex situs

11/1/24

Ogden v. Ogden: A French domicile man and an English domicile woman got
married in London. At that time as per French law, the consent of parents was
necessary to marry till the age of 25 years. The French man was below the age of
25 and therefore his parents got the marriage annulled by the French courts.
Subsequently, the French man got remarried. Once the English woman/the wife
got to know about this, she filed proceedings before the English HC for divorce on
the grounds of adultery and desertion. This petition was dismissed by the Court.
Nonetheless, the English woman remarried to one Mr. William Ogden. After some
time, Mr. Ogden found out about her earlier marriage and therefore moved the
English courts to declare the second marriage as a nullity on the grounds of
bigamy. In this second proceeding, the Court nullified the second marriage on the
ground that parental consent was a matter of lex loci celebrationis and therefore
the Court did not recognise the French decree. As a result of this, tragically the

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 English woman remained unmarried in the eyes of French law but married in the
eyes of English law.

In Re Cohn 1945: In this case, Mrs. Cohn and Mrs. Oppenheimer, mother and
daughter respectively, were both domiciled in Germany. Mrs. Cohn has a will in
favour of Mrs. Oppenheimer. While they were residing in the U.K., they died in air
raids in London. The question before the courts was who died first or who
survived the other. As per the English law, the presumption is that the younger
person survives the older person and therefore Mrs. Oppenheimer survived Mrs.
Cohn. However, as per German law, the presumption was that both of them died
simultaneously. It was argued that the question of presumption is a question of
procedure and proof and therefore it should be determined by lex fori (i.e., the law
of the forum, the forum being the English courts). However, Hon’ble Mrs. Justice
Uthwalt rejected this argument and held that the law of the domicile will apply in
this case and therefore Mrs. Cohn’s relatives will be entitled to her estate.

Maltese Marriage Case Anton v. Batolo 1891: In this case, a widow claimed a
share in her husband’s property situated in Algeria (French colony). The husband
and the wife at the time of their marriage were domiciled in Malta. As per the
French PIL, succession was governed by lex rei situs, and the right of husband
and wife on the property was governed by ‘matrimonial domicile’, i.e., where the
couple intended to reside at the time of marriage. As per the French law, the wife
was not entitled to any share in her husband’s property. However, under Maltese
law, she was entitled to a share and right of survivorship. It was held that the
Maltese law would apply and not the French law and therefore the widow’s claim
was upheld.

15/1/24

JURISDICTION IN DOMESTIC LAW

1. S/9 CPC (Subject-matter jurisdiction)

Suits of civil nature v. civil suits - suits of civil nature include socio-religious
questions (Vaishno Devi Shrine case)

Private International Law (PIL) 7

 Express and implied bar

2. S/6 CPC (Pecuniary jurisdiction)

Pecuniary limits cannot be exceeded

3. S/20 CPC (Territorial jurisdiction)

Plaintiff will decide the jurisdiction ‘dominus litus’

Where the defendant or each of the defendants place of business, residence,

works for gain at the time when cause of action arises

cause of action arises (wholly or in part)

16/1/24
CHARACTERISATION OF DISPUTE
‘Characterization’ means classification of a given factual situation in one of the
applicable legal systems in cases having foreign element.
Essentially, it means how do you classify disputes in particular categories
It is important because every dispute has some procedural aspects and
substantive aspects
Based on:

1. Lex Fori - domestic country - helpful in determining the procedural aspects -

eg. court fee, limitation act

2. Lex Causae - foreign country - helpful in determining the substantive aspects

- deals with the merits of the case - eg. contract

3. Dual Theory -

etc.
Stage 1 - Characterise the dispute based on lex fori

Stage 2 - Characterise the dispute based on lex causae

Give example of Ogden case where the English courts wrongly did not recognise
the French decree and applied lex fori instead of lex causae.

Private International Law (PIL) 8

 17/1/24
Lex Fori - Bartin (main propounder)
Lex Causae - Despagnet and Martin ‘Wolff’ (main propounders and criticizers of
Lex Fori)
Dual Theory - Cheshire (main propounder) and criticizers are Dicey and Morris

CLASSIFICATION BASED ON LEX FORI

Bartin was of the view that in PIL it is not possible to arrive at any conclusion on
the basis of the rules of law of nations for the simple reason that there are no such
rules. Therefore, in all cases, characterization is to be made on the basis of Lex
Fori i.e., the law of the country where the court adjudicates the case also known
as ‘internal law’. Bartin recognised only two exceptions to this theory:

1. Lex Situs for property because it affects the security of transactions.

2. Lex Loci Contractus where the contract is entered into by correspondence to

the governing law which is a foreign law.

Reasons for support:

1. That PIL rests on the notion of sovereignty and the internal laws are an
extension to the same.

2. Practical reasons i.e., the judges are trained in the internal law and therefore
should decide the issue based on the rules of the forum. If they apply foreign
law they will be venturing into darkness.

However, this theory has been criticized by Despagnet and Martin ‘Wolff’ who
propounded the theory of Lex Causae. According to them the analogy to the
internal law is more apparent than real. For example, the English law characterizes
the question of parental consent as extrinsic or related to the formal validity of
marriage, while French law considers it intrinsic or related to material validity. This
means that the matter is governed by Lex Loci Celebrationis in English law while
domicile/nationality will apply in French law. According to Bartin, this matter will be

Private International Law (PIL) 9

 characterized based on the internal law as one related to formalities and it will
result in socially undesirable result like Ogden v. Ogden 1908.

CLASSIFICATION BASED ON LEX CAUSAE

According to ‘Wolff’, “every legal rule takes its classification from the legal system
to which it belongs (foreign law)”. So French law will classify French rules, and an
English court examining the applicability of French rules will have to take the
French classification into consideration. Rare exceptions to this rule may be based
on justice and morality. Otherwise, it will be (criticism for Bartin) “shutting your
eyes to good portraits and remaining satisfied with a collection of caricatures.”

However, this theory has been criticized by Cheshire as follows:-

1. “If the law which finally regulates the matter (lex causae) depends upon
classification, how can a classification be made according to that law?” It
therefore leads to a vicious circle like in the Maltese marriage case.

2. If there are more than one lex causae i.e., two or more foreign laws are equally
applicable then which of those laws will apply or will be preferred over the
other?

CLASSIFICATION BASED ON DUAL CLASSIFICATION BY CHESHIRE

Cheshire divides characterization into two stages:

1. Primary characterization based on lex fori

2. Secondary characterization based on lex causae

Primary characterization is based on the allocation of factual situations to the

correct legal category, while secondary characterization is an application of the
proper law. The theory of two-fold classification has been criticized as artificial
and too mechanical by Dicey and Morris. For example, Cheshire characterizes
parental consent as primary classification while Robertson maintains that it is
governed by secondary classification.

Private International Law (PIL) 10

 Eg. an English woman marries in Greece and according to Greek law, the presence
of a priest is mandatory. However, in the case of English law, the presence of a
priest is not mandatory. Therefore, when the English courts apply this theory for
them according to lex loci celebrationis the absence of a priest is a mere
irregularity and hence does not hold the marriage void. Therefore the English
courts would not be able to move to the next stage of application of lex causae
because the marriage at the primary stage of lex fori is okay. Hence the
classification is artificial and too mechanical.

23/1/24
MODULE 4

(c) and (d) - Ogden case

(e) - Cohn’s case
(b) - Maltese marriage case

‘Renvoi’ = remission (by Cheshire) /transmission (by Dicey)

Remission here means ‘referring the matter back’ - if internal law is applied then it
is partial renvoi and if the judge juxtaposes himself as judge of the country which
remitted, eg, in contract law cases (lex contractus), it is total renvoi
Transmission here means ‘referring the matter to a third country’

‘Renvoi’ means remission or transmission. The doctrine of ‘Renvoi’ in PIL arises

when the matter is referred back to the law of the forum (remission) or to the law
of a third country (transmission).

According to Dicey, a patent conflict of rules involving a reference back to the

forum is called remission by a patent conflict of rules invoking reference to a third
country is called transmission.

The law of a country for doctrine of ‘renvoi’ means:

Private International Law (PIL) 11

 1. Internal law of that country, or

2. The whole law of that country including PIL

As per the rules of PIL of that country, that country may:

1. Refer back to the law of the forum

2. Refer forward to a third country

In the Forgo case a Bavarian national, domiciled in France, died in France and left
properties in France. The French court referred the matter to the Bavarian court
applying the principle of lex patriae (i.e., the law of nationality). However, the
Bavarian court referred the matter back to the French court on the basis of lex
domicilii. Unlike Bavaria, French law did not recognise succession on collaterals
for an illegitimate child i.e., Forgo. The French court applied the ‘doctrine of partial
renvoi’ and decided the matter as per its own law, resulting in no succession to
collaterals to Forgo’s properties.

CRITICAL ANALYSIS OF ‘RENVOI’

The doctrine of renvoi has been applied in several cases. In Re Ross 1930, an
English woman domiciled in Italy, left her property by will to her relatives,
excluding her only son. After her death, the son brought an action in English court
to claim his share in the property as to what he would be entitled under Italian law.
The English court proceeded to determine the question “as an Italian judge would
have”. Therefore, the English court decided the issue based on lex patriae and
allowed the claim of the beneficiaries under the will as against the only son.

As explained by Sir Herbert Jenner (1841) Collier v. Revaz “the court sitting here
(U.K.) decides from the person’s skilled in that law, and decides as it would if
sitting in Belgium.”

The theory has been criticized on the following grounds:

Private International Law (PIL) 12

 1. If the foreign country also adopts renvoi then no solution is possible as it will
lead to a circulus inextricabilis which Cheshire calls as “an international game
of lawn tennis”.

2. It is very difficult to interpret the law of a third country especially when there
are no clear pronouncements on the subject.

3. The doctrine goes against the aim of PIL which is to bring uniformity of laws.

4. Transmission to a third country may result in application of multiple law

systems and it causes a difficulty especially in complex commercial
transactions involving multiple jurisdictions.

27/1/24

RELEVANT PROVISIONS IN THE INDIAN EVIDENCE ACT (IEA)

S/45 - which is about foreign expert (skilled in foreign law)

S/57 - taking judicial notice of foreign laws particularly U.K. - refer to

appropriate books/docs

S/38 - record of law published under foreign government - law books

published also included

S/84 - presumption of genuineness - burden of proof on defendant

S/74 - public docs and mode of proof - commonwealth and foreign

S/78 - mode of proof

S/82 - presumption of documents admitted in England without proof of

seal/signature - anything admissible in English and Irish courts, will be also
admissible in India - Suganchand Bhinki M. Chand v. Mangibai Gulabchand
1942 Bombay HC was held that a judgement of highest court of foreign
country is the best evidence as to its law.

Palaniappa Chetti v. Nagappa Chettiar 1930 Madras HC - was held that

although evidence of an expert on a point of law of a foreign country in the
usual mode of proving foreign law, the court should itself interpret the foreign
law if the facts so require.

Private International Law (PIL) 13

 30/1/24
EXCLUSION OF FOREIGN LAW
When it is in conflict with:

1. Public policy - eg. same sex marriage, adoption matters

2. Revenue law - sovereign function - neither interfere in any other country’s tax
law nor let anyone escape our country’s tax

3. Penal law - eg. S/494

The exclusion of foreign law is on 3 main grounds:

1. Public Policy

2. Revenue Law

3. Penal Law

Public Policy refers to those matters regarded by the parliament and the courts as
involving fundamental concerns of the state and society at large. In the case of
Satya v. Teja Singh 1975 SC it was held that the court cannot enforce a contract
which is opposed to the notion of public policy. In the words of Judge Durrough in
the case of Richardson v. Mellish 1824 (U.K.) “I protest arguing dynamically upon
public policy. It is an unruly horse and once you ride it, you can’t imagine where it
will deliver you.” In October 1996, the Hague Conference negotiated the context of
multiple judgement conventions in which public policy was a key element.

Penal Law contains some punishment for the breach of duty in relation to the state
as held in Raulin v. Fischer 1911 (U.K.) - a court will not enforce foreign penal laws,
either directly or indirectly if such law contains both penal as well as remedial
provisions, then the court will only enforce the remedial nature of the law.

Revenue Law of foreign court can neither impose the burden nor confer a benefit
on subjects of any other state. As held in the case of Regazzoni v. K.C. Sethia

Private International Law (PIL) 14

 1956 (U.K.) the court can also not collect taxes of foreign countries irrespective of
the identity of the person.

In some countries, public policy is a broad concept encompassing the revenue

laws as well as the penal laws.

31/1/24
Judgements

1. Govt of India v. Taylor 1955 U.K. (by House of Lords) -

In this case, the Govt of India purchased business of Delhi Electricity Supply
and Traction Company, a company registered in England but carrying out
business in India.

On the receipt of purchase of money the Company remitted to England and

went into voluntary liquidation.

The Indian Commissioner of Income Tax claimed capital gains tax from sale of
business.

House of Lords rejected the argument and held that tax gathering is not a
matter of contract but of authority and administration as between the
sovereign state and its subjects within its jurisdiction.

2. Huntington v. Attrill 1893 N.Y., U.S.A. -

The question which the court should characterize is whether the particular law
is penal or remedial.

The court held that it is to be decided based on lex fori.

3. Wholl v. Oxhome 1817 U.K. -

The English Court enforced a contract which was void by its proper law. It is
because English courts disregard foreign discriminatory legislations rendering
a contract void.

Under the Bills of Exchange Act 1882, a bill of exchange subject to foreign law
can be enforced in England even if it is void under the foreign law due to

Private International Law (PIL) 15

 insufficient stamping.

DOMICILE
“Everlasting home” - Cheshire
Lord Cranworth in Whicker v. Hume 1858 observed “By domicile we mean home,
permanent home.”
But then what is home?

“If you do not understand your permanent home, I am afraid that no illustrations
from foreign writers will help you.”
In 1863, Moorhouse v. Lord 1863, Lord Cranworth observed “The present intention
of making a place a person’s permanent home can exist only where he has no
other idea than to continue there, without looking for any event which may change
his residence.”

1/2/24
Ramsay v. Liverpool Royal Infirmary (IMPT)-

A person was born in Scotland, Glasgow in 1845 and therefore had a Scottish
domicile. He shifted to Liverpool, England in 1892 and died there in 1927
without ever going back to Scotland.

He made a ‘will’ which was valid as per the Scottish law but invalid as per the
law of the U.K.

He did not even attend the funeral of his mother at Glasgow and arranged for
his own burial at Liverpool.

He often used to say that he was very proud to be a Glasgow man and
connected with Scotland.

The House of Lords held that he never made Liverpool his permanent home
and therefore he continued to have Scottish domicile of origin.

As per lex domicilli the will was valid as per Scottish law.

Private International Law (PIL) 16

 Winas v. A.G. (1904 House of Lords)

Under both Indian and English PIL the following principles of domicile apply:

1. No person can be without a domicile.

2. No person can have 2 domiciles simultaneously (exception - federal systems

like U.S.A. and Australia).

3. Domicile denotes the connection of a person with a territorial system of law.

(IMPT)

4. The presumption is in favour of the continuance of an existing domicile.

5. The burden of proof of a change in domicile lies on the person who alleges it.
(Casdagli v. Casdagli 1919 U.K.; Abdul Samad v. State of West Bengal 1963
SC).

The Indian SC and the Constitution also recognise only one domicile for the
purposes of PIL - Pradeep Jain v. UOI 1984 SC. In India, the primary domicile is
the Indian domicile and the secondary domicile is the state domicile. The state
domicile may prevail only for certain purposes, for example, marriage laws.

6/1/24
2 TYPES OF DOMICILE
(Both of these apply to independent persons only)

1. Origin -

domicile of father (and not birthplace) (and domicile of mother in case of

illegitimate child)

As per English PIL, if the child is born after father’s death, he will get mother’s
domicile; but as per Indian law, it does not matter if the father is dead or alive

‘Revival’ - at a time when there is no domicile of choice, the domicile of origin

revives - it is criticized by Cheshire but is largely accepted today

Private International Law (PIL) 17

 Founding domicile - where the child is found (in case of orphan) - it will
change if before attaining majority, the parents are found

2. Choice

two things have to be seen together - intention and residence

Private International Law (PIL) 18