Private international laws and recognition of foreign judgements

Introduction

In this era of globalisation, 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.

Private International Laws

Private international laws can be loosely 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.

Functions

Private International Laws of the country help in the following way:

• They help 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 foreign material.

• It also helps in determining the maintainability of the case, telling about which courts
have jurisdiction to settle the dispute.

Basis and Doctrine of Comity

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.

Before we head onto recognition and enforcement of Foreign judgements it is important to understand
the traditional rules of Private International Law.

Traditional Rules

• 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.

• 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.
Recognition and Enforcement of Foreign Judgements

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 judgement’s date.

Section 13, Code of Civil Procedure

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

• The foreign judgement will not be conclusive if the maintainability is questionable when the
judgement is given by a court which does not have competent jurisdiction over the matter.

• The foreign judgement will not be conclusive in case, the decision of the court was not based
on the merits of the case.

• 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 judgement will not be conclusive.

• If it is found that proceedings did not consider the Indian laws applicable in that particular case,
then the foreign judgement will not be considered conclusive.

• For a foreign judgement to be conclusive it should be made sure that judgement does not go
against the spirit of Natural Justice. In such cases where the judgement goes against the Spirit
of Natural Justice then the judgement will not be considered as conclusive.

• The two other cases, where the judgement will not be considered as conclusive, are first: if the
judgement has been obtained by fraud, and second: if the judgement 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 judgement 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.

• 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.

Supreme Court Judgement and Arbitration Conciliation Act.

Judgement

Judgements 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 judgements regarding the issue of the recognition and enforcement of foreign judgements. I will
discuss one such important issue enunciated by the Supreme Court in one of its judgements.

Relying on the ratio of the judgement of the case of International Woollen Mills vs Standard Wool
(UK) (2001 5 SCC 265) the Supreme Court in one of the recent judgements 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
judgement 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 judgement of the English court which has decided the matter on
the basis of merit.

Even if the decision is an interlocutory order the judgement shall be given due weightage, the only
exception where such judgements cannot be accepted is when the judgements are in violation of Section
13 of Civil Procedure Code. Therefore on this basis, the court considered the judgement 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).

Arbitration and Conciliation Act

Arbitration and Conciliation Act is based on the UNCITRAL model, this model actually provides the
law-makers of various nations with a pattern using which the law-makers can legislate various laws
regarding arbitration. Arbitration and Conciliation Act of 1986 was a much-needed act considering the
amount of foreign direct investment in India. Due to the increase of foreign direct investment,
international commercial arbitration has shifted its focus to India-focused arbitration. With this change
providing foreign awards in the cases and judgements has become the subject of comprehensive
judgements of the Supreme Court. The law-makers in India have excellently drafted the act and have
taken due care. This is reflected in Part 2 of the Arbitration and Conciliation Act, where the act has
included New York Convention Awards in Chapter 1 of Part 2, and apart from New York Convention
the Part 2 in its Chapter 2 has also included Geneva Convention Awards.

Conclusion

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