PRIVATE INTERNATIONAL

LAW
 INTRODUCTION

• Law could be understood and classified in multiple ways.

For instance, it could be classified broadly as civil law and
criminal law; substantive law and procedural law;
commercial law and non-commercial law; statutory and
other laws; law as it is and law ought to be; etc
 PUBLIC AND PRIVATE
INTERNATIONAL LAW
• For our discussion, law could be viewed and classified broadly as
domestic law and international law.
• Here, the domestic law could be classified further as public law and
private law. Similarly, international law could be classified as public
international law and private international law
Public International Law• Public International law or law of nations. The
term international law was first coined by
Jeremy Bentham in his book Introduction to
Principles of Morals and Legislation in
1789.
• L. Oppenheim defines – “Law of nations or
international law is the name for the body of
customary and conventional rules which are
considered legally binding by civilized states
in their intercourse with each other”.
• In short, public international law is the collection
of rules and principles that maintains the
relations between states and/or between non-
state actors (such as individuals, international
organizations, corporations, non-governmental
organizations, civil society groups, etc.)
Private • Private international law or conflict of laws.
International Law The term private international law was first
coined by Joseph Story in his book
Commentaries on the Conflict of Laws in
1834. Here, the term private international
law is used in the UK whereas the American
uses the term conflict of laws.

• Cheshire defines – “Private international

law is a part of law which comes into play
when the issue before the court affects
some facts, events, transactions that is so
closely connected with a foreign system of
law as to necessitate recourse to that
system”.
 CONTD…..
• Dicey and Morris defines – “English
private international law is that branch of
law of England which consists of rules
which do not directly determines the
rights and liabilities of particular
persons but which determines the limits
of the jurisdiction to be exercised by
them.
• In short, private international law is the
collection of rules and principles that
comes into operation whenever a court is
faced with a claim involving foreign
element. Private international law is also
called as conflict of laws, international
private law, inter-municipal law, extra-
territorial recognition of rights
 CONTD….
• According to this definition, following may be the principles
of Private Int. Law:
 It is a branch of national law,
 It is administered by the courts of nation, or the land,
 It is generally administered over the individuals, whether
citizens or individuals, and
 There is always a foreign element in all these cases
Thus, Private International Law is the means to find out the
applicable law in case of a dispute that involves a foreign
element.
MONISM AND DUALISM
THEORIES
• Dualism – As per dualism theory,
international law and domestic laws are the
two different branches of laws having
their own origin and subjects with their
own institutional mechanism for regulation.
Triepel and Anzilloti are the major
proponents of this theory.

• Monism – As per monism theory,

international law and domestic laws are two
facets of the same phenomenon, with a
single object to secure the well-being of
individuals.
Kelson and Duguit are the major
proponents of this theory
Difference between public and private international law
Public international law is mostly
concerned with nations and not
individuals, while private
international law is concerned with
disputes between the individuals or
between individuals and states.
• The rules of public international
law are somewhat uniform for all
states, while each state has its
own private international law.
• Under private international law a
dispute can arise between the
nations of the same state (just as a
matrimonial dispute between two
Indians who celebrated their
marriage in London), while the
public international law is
concerned with the dispute
between two separate states.
• Public international law
gives rights and obligations
upon the states whereas
private international law
does not give rights and
obligations upon the
individuals,
• instead PIL guides which
court have jurisdiction and
what law should be applied
(whenever a foreign element
involved in a dispute); and
how to recognize/enforce
the foreign
judgments/foreign arbitral
awards.

A distinguished American Judge, Cardozo J, has described conflict of

laws as “one of the most baffling subjects of legal science and observed
that, the average judge when confronted with a problem in the conflict
of laws, feels almost completely lost, and like a drowning person, will
grasp at a straw.”
• The private international law comes into operation only
when a court is faced with a claim involving foreign
element/citizen.

• There may exist a foreign element because the parties may be

citizens of a foreign country, or domiciled in a foreign
country, and the dispute may relate to their status or their
property situated in that country; or the dispute may relate to
a contract between parties living in 2 different countries; or a
suit may relate to a tort committed. In all such cases, there
exists a foreign element. 
 CASE 1

CASE 2
 CASE 5
CASE 3

CASE 4
 CASE 6

CASE 7
• For example: A, an Indian residing in the US marries B, a
Pakistani residing in the US. They earned enormous
properties in France. While returning from France they met
with an accident and died intestate without any children.
• Relatives of A field a suit for property before Indian court
and B’s relatives filed a suit for property before Pakistani
court and some relatives filed a suit before the US court.
• Now the question is, which court has jurisdiction to deal with
the case?; which law should be applicable?; and how such
judgement could be enforced in France to claim property?.
• An instance of the Indian Legislature recognizing the rule of
comity occurs in Section 11 of the Foreign Marriages Act,
1969. The Act permits Indian diplomatic & consular officers to
perform the marriages of persons, one of whom is a citizen of
India, abroad, but provides that no such marriage can be
performed if such a marriage is prohibited in the country where
it is to be performed.
• The Joint Committee of Parliament also gave explanation as to
why this rule was enacted, “it was done because permitting the
performance of marriage prohibited in the country where it is
performed would have been contrary to international law or the
comity of nations, and parliament desired that a marriage
performed under the Act have a high degree of international
validity.
• For instance, in the matter of Re Annesley , in this case there
was a British National domiciled in Italy and had some movable
property in England. He died without any will. Thus, the
question of conflict in this case was of succession of property.
• When the case came before the court of law, it was found that as
per English law lex domicli should be applied but as per
Italian law the rule to be applied was lex nationalis. The first
question which comes before the court is procedural law. The
Procedural Law is the domestic law of the land where the case
is filed. Thus, the dilemma is limited to the Substantive Law.
And, choosing of such a law is of paramount importance for
delivering justice.
• A simple example is the traffic rule providing which side of
the road a car shall drive on. Neither the right side rule in
continental Europe nor the left side rule in Japan and Britain
has proven to be superior. However, the coexistence of both
rules may be harmful to the facilitation of international
traffic.
•  If Company A operates in both the U.S. and Canada, and a
legal dispute arises, then private international law will
determine which country has jurisdiction over the dispute
and, consequently, which laws should be taken into account
when arguing the facts of the case. This will help the
company to understand if its Canada branch or its U.S.
branch should be involved in arguing the case
• In such situation private international
law comes into operation and
determines the following:
• 1. Choice of forum (i.e., competence
of the court to entertain a claim);
• 2. Choice of law (i.e., applicable
domestic law to determine the rights
of parties);
• 3. How to recognize and enforce
such foreign judgments.
Choice of forum
• The question of jurisdiction is a fundamental question in all
suits and legal actions. The question of jurisdiction before the
court may arise in the following two circumstances:
• 1. when a suit is filed before the domestic court, then the
court has to decide whether it has jurisdiction to try the suit
or not?

• 2. when the recognition of a foreign judgment or its

enforcement comes before the domestic court, then it has to
decide whether the foreign court that rendered the judgment
had competent jurisdiction to decide the case.
• Every country has their own procedural laws, which provides what
matters and which court will have jurisdiction (whenever a foreign
citizen involved in a case). Some countries may apply the same
procedure for all types of suits (i.e., suits having foreign elements
as well as suits having no foreign elements).
• In respect of immovable property, it is universally agreed that – the
court of the place where the property is situated has jurisdiction.
But in respect of movables there is no such unanimity. Similarly
there is no such unanimity for personal matters
• The basis or foundation of the rules of conflict of laws is
principally the need to do justice. It would be unjust if a dispute
with, say, a French element is decided by an Indian court applying
only the rules of law in force in India merely because it is an
Indian court which is deciding it.. The result would have been
different had a French court decided it applying the rules of
French law.  S A vs. SMS Holding (P) Ltd. (2005) 5 SCC 465
• Sometimes more than one court may claim jurisdiction. In contractual
disputes, the court of the place – where the contract was entered into,
or where the contract is to be performed or where the breach took
place.
• - For instance, a contract was entered into between a Burmese resident
and a Chinese resident at Dacca to supply certain quantity of rice to be
shipped to Calcutta. Presume that a breach occurred , where should the
parties file the case and which court will get jurisdiction to decide the
dispute: Burma court, Chinese court, Bangladesh court, India court?
• Stephens vs.Falchi it was correctly held by the court that “Whether or
not the conditions are such as to require the application of the rules of
law of another country is a question that must be decided by court
under their own law” (1938] 3 DLR 590)
Choice of law
• Once the court decides its jurisdiction then the question will arise under
which law should be decided? Whether the law of the forum (i.e.,
internal law) will apply? Or whether some foreign law(s) will apply?
This is called question of choice of law.
• – A wife files a suit in an Indian court for judicial separation under
Sec. 10 of the Hindu Marriage Act on the ground of dissertation. Here
both the parties are Indian married in England. While they went to
Japan the husband disserted her. Now the Indian court has
jurisdiction to try the suit. Which law should be applied Indian,
English or Japan?
• It is not necessary that suit will be decided by only one system of law and
on different aspects of the suits, different systems of law apply. For
instance, in case of marriage (question of formal validity by lex
celebrationis, question of capacity to marry by lex domicili, and all maters
relating to procedure by lex fori).
RECOGNITION AND ENFORCEMENT OF FOREIGN
JUDGEMENTS
• The private international law decides recognition and enforcement
of foreign judgements and awards.
• – For instance, an Indian wife files a petition for maintenance under
Sec. 125 Cr.P.C. in an Indian court against her Indian husband
domiciled in New York. The husband takes the plea that the marriage
had already been dissolved by a decree of a New York court and
therefore the applicant’s claim is not maintainable. The question here
is – whether the Indian court will recognize the New York decree
and give effect to it?.
• – A obtains a money decree against B from a French court and files
an execution application of that decree in an Indian court against the
assets of the judgement debtor which is situated in India. The
question here is – can a foreign decree be executed in India?
 REASON TO APPLY PRIVATE
INTERNATIONAL LAW
• As per Article 2(1) of the UN Charter, every state are sovereign equal.
• Further, as per Article 35 of the VCLT, without the consent of a state no
obligation in any treaty may arise (pacta tertis nec nocent nec procent).
• However, as per Article 26 of the VCLT, every international treaty binds only
the parties and only they should perform in good faith (pacta sunt servanda).
• Then why municipal courts apply foreign law, though they never consented to it.

• Why do Municipal courts apply Foreign laws?

• 1. Comity
• 2. Directed by the internal Law or out of necessity
• 3. Demand of Justice
• V . Simond – In the end and in the absence of authority binding the
house , the question is simple- What does justice demand in such a case
as this?( National Bank of Greece and Athens V Metliss) 1954
• Lord Reas- to my mind the best way to approach this question is to
consider the consequence s of a decision in either sense. (Starkowski v
Attorney General ) 1954
• Chandrachud – Recognition is accorded “ not as an act of courtesy but
on consideration of justice
 PIL DOCTRINES
• Lex domicili – law of the place of residence of the parties
• Lex situs – law of the place where the property is situated
• Lex contractus – law of the place where the contract is made
• Lex causae – law that governs the disputes
• Lex fori – law of the forum (i.e., the law in force in the country hearing the dispute)
• Lex actus – law of the place where the act was done or the transaction was complete
• Lex celebrations – law of the place where a marriage is performed
• Lex delicti – law of the place where the tort or other wrong was committed
• Lex solutions – law of the place where the contract was to be performed or the debt
is to be paid
• Lex monetae – law of the country in whose currency a debt or monetary obligation
is expressed
• Lex fori – law of the forum
• Lex loci actus – the law of the place where the act was done or the
transaction was completed
• Lex loci celebrationis - the law of the land (lex loci) where the
marriage was celebrated
• Lex loci contractus – place where the contract was made
• Lex loci solutionis- contract to be performed or the debt paid
• Lex rei situs – place where property is situated (same as lex situs)
• Lex patriae – law of the nationality of the person
• Lex Propositus – person whose rights and obligations are
being considered
Origin and Development of PIL
• Roman citizen came with the ambit of Jus Civile , while inhabitants of provinces of Roman Empire
were governed by their own provincial system. During this period there were some concepts of PIL
evolved, such as lex domicili and lex situs
• Between 6th to 10th century (i.e., after the fall of Roman Empire) wherever a person go he carried
his personal law along with him. As a result, parties themselves specified which law need to be
applied for their transactions.
• In 11th and 12th century, feudalism emerged in France, Germany, Spain, England and in other
countries. – hence there was no place for the application of personal laws.
• Only in 13th century, the real beginning for the development of PIL happened – when the Italian
city-states (such as Genoa, Pisa, Bologna, Venice, etc.) started interacting through trade and
commerce. Each of these states adopted their own laws and these laws differed from each other.
• Originally those laws conceived to provide solution to the hhhconflict among the laws of Italian
city-states; and later provided solution to the conflict between the laws of Italian city-states and
other city-states.
• Bartolus (propounded the statue theory) and he classified the statutory laws under three heads:
statutes relating to person, statutes relating to things, and mixed statutes
• In 16th century, the statute theory has been developed by French jurists Dumoulin and
D’ Argentre. These jurists says that if there is any doubt about a matter as to which
category a subject should fall, it should be treated to fall in statutory law pertaining to
things.
• In 17th century, the Dutch jurists Grotius said that it depended upon the will of the
sovereign as to what solution should be provided to any problems including the problem
of conflict of laws. This led to the emergence of doctrine of territoriality of laws.
• In 19th Century, German jurist Savigny says that the object of PIL is to establish the co-
relation of a legal relationship with some territorial law.
• In the event of a conflict between the territorial law and the law of the place to which
legal relationship belongs the later should be applied.
• After the second world war, the Soviet Union and its allies influenced the development
of PIL. As a result the capitalist and socialist legal system – their economic and other
relations gradually started.
• Meanwhile PIL also started development slowly not only in Rome but also in other parts
of the world.
 English Law

• All suits before the English courts, the rules of English law was applied. Hence no conflict of laws or
conflict of rules arose.
• In 16th century, a rule of English law also laid down that English courts had no competence to take
cognizance of foreign suits. At that time, England had some special courts (Court of Admiralty) alone
entertained the complaints of foreigners or to hear disputes relating to trade and commerce. In such
cases, courts applied the law of merchants which was a universal law and not the law of any country.
• At the end of 16th century common law courts also started entertaining foreign suits or suits having
foreign elements. Court at Westminster could entertain all transitory actions. But English courts refused
to apply foreign law in all such cases. The court always applied only law of merchants.
• In 17th century, initially the English courts showed willingness to take evidence of foreign law – later
they also showed willingness to recognize and enforce foreign judgments. By that they become
compelled to take cognizance of foreign laws in PIL situations.
• In 18th century, due to increasing trade, commerce and intercourse with many people lead to give
importance to law of contract (usually where the contract is made) and not the place where the action is
brought to enforce the contract. Then individual judges started to apply rules governing foreign tort.
• In 19th century, in 1863 when James I become King of England and Scotland, the question arose –
whether English law could be recognized in Scotland. Answer to that question – whether the rule of
English law which prevented foreigners from becoming owners of land would apply to Scots also.
Though the courts answered in negative but the question of PIL arose
• Hence, 18th century often regarded as “the embryonic period” for the development of PIL.
• Whereas 19th century could be considered starting period for “full-fledged” development phase of PIL
 Ancient period, Gupta and Mauryian Emperors had trade and commerce with
countries far and beyond – high seas. India had fairly developed law and customs
of merchants and suits were decided thereunder.
During their period, law in India was territorial but usage and custom had their
place by sometimes supplementing law, sometimes even overriding it.
Mughal period, that is after the establishment of the Mughal Empire in India on
many matters rules of Muslim law came to be applicable. However, if both the
parties were Hindus, Hindu law applied; and if both the parties were Muslims,
Muslim law applied.
Indian Law
In personal matters (i.e., the entire area of family law): Hindus were governed by
Hindu law and Muslims were governed by Muslim law. Hence it is often
considered as the era of personal laws in India.
During British period, from the beginning to end various communities in India
were governed by their personal law in personal matters.
Hindus were governed by Hindu law, Muslims by Muslim law, Christians by
Christian law, Parsis by Parsis law, Jewish by Jewish law.
Inter-religious marriages could be performed through separate statute (Special
Marriage Acts 1872). In such situations personal law ceased to exist.
In all matrimonial causes, they were governed by the Special Marriage Act and
succession to their properties was regulated by the Indian Succession Act, 1925.

In personal matters, personal laws were applied during British regime. A Hindu living
in Bengal is governed by the Dayabhaga school of Hindu law. He will be continued to
be governed by that school wherever he goes

Indian courts decided PIL issues by applying rules propounded in English decisions.
Thus, basically the rules of Indian PIL are based/borrowed on the rules of English PIL.

Post-independence period, it is not at all necessary or logical to follow other

countries PIL. And we are in a position to develop our own PIL according to our social
needs and circumstances.

The courts in India are now at liberty to lays down and follow our own rules with
regard to PIL with our own sense of justice, equity and good conscience. Still Indian
courts follow English PIL only
 UNIFICATION OF PIL
• It could be possible to unify the PIL in two ways:
• 1. UNIFICATION OF THE INTERNAL LAWS OF THE COUNTRIES
• Example: BERNE CONVENTION 1886 (unified rules on literary and artistic works);
• WARSAW CONVENTION 1929 (unified rules on carriage of goods and persons by air);
• BRUSSELS CONVENTION 1922 (unified rules on carriage of goods and persons by sea);
• GENEVA CONVENTIONS ON INTERNATIONAL CARRIAGE OF GOODS BY ROAD 1956 ;
• GENEVA CONVENTION ON THE UNIFORM LAW OF BILL OF EXCHANGE 1930; HAGUE
CONVENTION 1964 (unified rules on international sale of goods).
• 2. UNIFICATION OF THE RULES OF PRIVATE INTERNATIONAL LAW.
• Example:
• The International Institute for the Unification of Private International Law at Rome (UNIDROIT) and
• The United Nations Commission on International Trade Law (UNCITRAL) involves mainly in the
unification of rules of PIL.
• UNCITRAL have drafted Model Law on Arbitration.
• Hague Rules on Carriage of Goods by Sea,
• the Warsaw Convention on Carriage by Air were adopted. In India, the Carriage of Goods by Sea Act
1925, the Carriage by Air Act 1972, and the Arbitration and Conciliation Act 1996 was adopted.
• Apart from this there are various regional and bilateral conventions have been
created to unify the rules of PIL. Mostly the countries tried to unify the rules of PIL on
marriage, divorce, succession, adoption, guardianship, and essential validity of
contracts (Scandinavian countries, US and Soviet Union, Eastern and Western
European Countries, European Union involved in this process).
• Some International Conferences persuaded as many countries as possible to adopt
uniform rules of domestic law in fields which are likely to raise disputes involving a
foreign element.
• Arbitration and Conciliation Act 1996 gives statutory force to Geneva and New
York conventions on international arbitrations.
• India also adopted several international conventions relating to maritime law
(limiting liability of ship owners and on consequences of oil pollution). Because its
trade and commerce are increasing at the global level.; people are moving from India
and settles abroad, hence succession problem may arise; similarly rules on agricultural
lands, tenants, divergence between laws in force in different states in India
• Apart from there are various regional and bilateral conventions have been created to
unify the PIL. Example, four Scandinavian countries unified the Bankruptcy, res
judicata, and recognition of judgments and enforcement of degrees.
• US follows the Restatement of PIL but it is not a codified PIL rules and
Americans not bound by it. The Restatement merely contains simple and
reasonable analysis of the accepted rules of PIL. Soviet Union also unified some
civil laws with Eastern European and also with Western European countries.
• BILATERALLY SOME COUNTRIES UNIFIED THE RULES OF PIL.
• The Inter-Scandinavian conventions 1929-1933 between Norway, Denmark,
Finland and Iceland unified the rules of PIL on marriage, adoption, and
guardianship. Denmark and Norway unified rules on domicile; Sweden and
Finland personal law matters are regulated by nationality
• The 1951 convention between Benelux countries Netherlands, Luxembourg
and Belgium unified the rules of PIL in personal matters (such as capacity,
divorce, succession, and essential validity of contracts. US and Canada have
made Uniform commercial Code
• Soviet Union and Peoples democracies of Eastern Europe unified rules of
PIL relating to family law and succession.; and The 1951 Convention of the
Carriage of Goods by Rail is another milestone.
 THEORIES OF PRIVATE
INTERNATIONAL LAW
• Following are the major theories of PIL:

• STATUTE THEORY
• TERRITORIAL THEORY/THEORY OF
ACQUIRED RIGHTS
• INTERNATIONAL THEORY
• LOCAL LAW THEORY
• THEORY OF JUSTICE
 STATUTE THEORY
•In 13th century, the statute theory was evolved and that
period is often considered as renaissance of Roman law. And
it is the most ancient theory in PIL
•Originally this theory started to resolve conflict between
the laws of various Italian city-states; Later it tried to
resolve the conflict between the laws of Italian city-states
and the laws of other states.
•For instance, whenever dispute arose between the citizens
of Italian city-states then the courts applied only the
Roman law; whenever dispute arose between the citizen of
Italian city-states and the citizens of provinces of Roman
empire, then courts followed lex domicili and lex situs.
•These doctrines considered as starting point of PIL
•During this period, the Italian city-states (such as Genoa,
Pisa, Milan, Venice, Florence, etc.) have started trade and
commerce not merely with each other – but also with other
countries (such as Syria, Arabia, Spain, and France)
•To conduct trade and commerce these Italian city-states
and other countries adopted a statute (called the law of
merchant). It gave way for the development of PIL.
• Bartolus classified these statutes into three:
• Statute concerning person (statuta personalia). These statutes applied to
persons domiciled within the territories of the state enacting those statutes
and they continued to govern such persons when they went to another state or
territories. Personal statutes dealt with the status, capacity of parties, etc.
• Statutes concerning things (statute realia). Here the real statute concerned
with things and these statutes were essentially territorial. Real statute deals
with movable, immovable properties, etc
• Mixed statutes (statuta mixta). Mixed statutes concerned with acts (such as
formation of a contract) rather than a person or things.

• Major problem with this classification is: how one could identify which statute
is personal, real, mixed?.
• For instance, a law which regulates one’s capacity to transfer land be classified
as personal because it concerns persons or as real because it affects land. •
• To resolve the problem, Bartolus made the distinction between the two. A
statute is real if ‘things’ are mentioned first. It is ‘personal’ if persons are
mentioned first.
• According to Cheshire- “The truth is, of course , that the
problem is insoluble. Should, for instance a law which regulates
one’s capacity to transfer land be classified as personal because
it concerns person , or as real because it affects land?”
FRENCH VERSION OF THE
THEORY
• In 16th century, Charles Dumoulin and
Bertrand D’ Argente developed the
statute theory according to the social
conditions of France.
• Different French provinces had
different systems of law( called as
coutume). The provincial laws differed
from each other in case of inter-
provincial trade and inter-course
between the people of different
provinces.
• As a result, the provincial laws were in
constant conflict with each other. It
made PIL inevitable in France..
• Dumoulin developed the PIL to govern the law of
contract. D’Argentre developed the theory of
territoriality of law. He says that whenever there
was a doubt as to whether a rule was ‘real or personal
or mixed’, it should be treated as real.
• Though a statute might seem to be ‘personal’ but in
fact it may be ‘real’. For instance, the child would
inherit the property of his father. This means that
though the statute appears to be ‘personal’, in fact it
is ‘real’
• In 17th century, Dutch jurists Huber and Voet
sought to provide solution to the problem of
conflict of laws in following ways:
• – Laws of each state operate within its
territory and are applicable to all its
subjects, but beyond its territorial
boundaries, they have no operative force
• Laws of a state are applicable to all those
persons who are within the realm irrespective
of the fact whether they are permanent
residents or casual visitors.
• – Laws which came into operation in its
country of origin shall retain its force
everywhere, provided it does not cause any
prejudice to the subjects of the sovereign by
whom its recognition is sought.
• They said that “every state was free to lay
down its own rules of PIL and its courts will not
apply any foreign law or foreign rules
• In 18th century, Hugo Grotious’s came out with
the concept of law of nature and law of nations.
• He says that public international law itself can
provide solution for the private international law
disputes. And he understands that public and
private international law are co-related with each
other.
• As a result, his theory influenced the development
of PIL. He said whatever difference there might be
in the form and contents of the statutory theory,
few things seems to be common to all theorists
that:
• – 1). they all examine the individual legal rule itself
and consider the question –whether it is equally
valid extraterritoriality?; and
• – 2). they all try to evolve principles which are
meant to be just, serve justice.
 TERRITORIAL
THEORY
• Territorial theory was propounded by Dutch jurist D’Argente, According
to him, courts of a country apply foreign law only to the extent to which
they are permitted to do so by sovereign (this theory resembles the theory
of comity).
• Some jurist named this theory as theory of acquired rights
• Dicey in England and Beale in the US are also the supporters of this
theory. According to them, courts of a country are ordinarily bound to
apply the law of their own country. The courts can neither recognize nor
apply the foreign law, nor they enforce foreign judgments
• They viewed that under PIL courts do not apply foreign law or enforce
foreign judgments, but they merely recognize and enforce the rights
acquired under foreign law. It means that – under PIL foreign acquired
rights are protected and enforced, and not the foreign law.
• Major criticism upon this theory is that:
• Arminjon has criticized that the term ‘territorial law’ is not confined to
internal laws of a sovereign state but it also include the rules of choice of
law/PIL. Bale viewed that as per the logic of acquired rights theory
foreign law under which rights are acquired that include the rules of
choice of law.
• Cheshire says that the territorial theory is futile if it has been revealed
that it is more than one foreign law that the rights has been acquired. It is
possible under the rules of choice of law of a country it may happen that
a right which is unrecognized or repudiated by a foreign law may be
enforced by the court of the forum.
• For instance,
• a French widow claims a share of her husband’s property in England.
This claim raises a question either of succession or of mutual property
rights of husband and wife (recognized under foreign law). Suppose,
when the question comes before the English court then it classifies the
matter as mutual property rights of spouses, then he must enforce
whatever rights are granted to a widow by the French law. But, if the
question comes before the French court then it would have been
classified as one relating to succession. This means that the English court
would be enforcing a right which is not recognized by French law.

• Under the Pakistani law a Muslim wife is not entitled to maintenance

after divorce. Yet English courts have power to pass a maintenance order
against a Pakistani domiciled husband residing in England who had
divorced his wife. Hence, the theory of vested rights is practically
defective and inadequate
 INTERNATIONAL
THEORY
• International theory was propounded by Savigny (in his book ‘System of
• Modern Roman Law’ in 1849). This theory rejected both the Statute
theory as well as the territorial theory.
• Rejecting the statute theory, Savigny said that the solution of the problem
did not lie in classifying the laws on the basis of their object, but in the
ability to find out the “seat of each legal relationship”, as each legal
relationship has its natural seat in some local law (‘law of the forum’
is called as ‘the seat’).
• Savigny maintained that in a case having foreign element “the same legal
relations have to expect the same decision whether the judgment is
pronounced in this state or that state”. He says that the application of
foreign law is not based on comity but on the benefit that it brings to all
concerned.
• He viewed that every legal relation has a seat . And said that the seat of a
thing was the place where it was situated; the seat of the legal relationship
of the capacity of a person was the place where he was domiciled.
• Savigny’s theory was further developed by German jurist Von
Bar and Zitelmann, England jurist Westlake, American jurist
Wharton, Holland jurist Jitta, and Rabel.
• Major criticism upon this theory is that it assumes that there
is uniformity in the laws of the countries on characterization
of legal relations while in fact it is not so.
• Further, in our contemporary word we have two systems of
laws: common law system and civil law system that often
complicates the problem more.
 LOCAL LAW THEORY
• Cook and Kelson are the major proponents of this theory. It is the
extreme application of the doctrine of territoriality
• Walter Wheeler Cook maintains that “no court applies any other law
but its own, nor enforces any right or obligation other than that created
by its own law”. Hans Kelson viewed that “the true meaning of the
rules of privat international law is that the law of a state directs its
organs to certain cases norms which are norms of the state’s own law,
but which have the same contents corresponding norms of another
state’s law”.
• When the courts of forum have to decide a case having foreign
elements, they always apply their own law. In doing so, the courts
adopt and enforce an identical rule, or at least highly similar rule (as
that of their own law).
• The rule which is incorporated into the law of the forum,
may be called as domestic rule’ of the foreign state – as
distinguished from its rule applicable to cases involving
foreign elements. Here, the forum enforces not a foreign right
but a right created by its own law.
 THEORY OF JUSTICE
• Graveson is the major proponent of this theory. This theory rests merely to
secure fair treatment in the private transactions of two different nationals.
Usually the domestic courts apply their own laws and do not have interest to
apply any other law. As far as PIL cases are concerned the courts of forum
have to apply foreign law. But the countries often believe that when you
apply a foreign law one sovereignty subordinates his sovereignty to the other.
• Application of foreign law is necessary for determining rights of parties.
Invariable application of the lex fori (domestic law of the place where the
action is tried) would often lead to injustice
• For instance, when an Indian marriage conducted according to Hindu rituals.
If its validity is challenged (before the English court) on the ground of lack
of proper formalities of marriage. Here, if the English law applied the
marriage will be void because English law requires exchange of garlands and
rings between the bride and bridegroom
• A contract was entered into in Singapore and the performance of which was
to be made in Karachi, if the Indian court called upon to adjudicate the
dispute, then the Indian court should decide the dispute either by law of
Singapore or Pakistan otherwise (though the rights arising under the contract
resemble the contract as per Indian law), otherwise if the Indian courts
applies only Indian law, then the rights arising under the contract may be
totally frustrated
• Here, the demand of justice requires that in the first case the English court
should apply the Hindu law, in the second case, the Indian court should apply
either Singaporean law or Pakistani law. Otherwise injustice may occur
• Cheshire says that “the application of foreign law implies no act of courtesy,
no sacrifice of sovereignty”. Here the question of subordinating one’s
sovereignty does not arise as the sovereign enforces foreign law by its own
free choice.
• The age of absolute sovereignty has gone in the era of globalisation. At
present, trade and commerce, movement of natural persons have
increased across the border, and nations become much more inter-
dependent. As a result, states are in the interest of mutual inter-course,
co-operation and applies foreign laws.
• The reality is that the function of courts is to do justice between the
parties and, in doing so, if they feel that a foreign law is applicable and
consequently apply it. So, when a court applies foreign law, it applies it
because it has been directed to do so by its own internal law and
moreover it does so, to secure justice.