Procedure & Substance

• The exceptions to Private International Law rules are:

• Penal
• Revenue &
• Procedural Laws

• Dicey said that all matters of procedure are governed by the domestic law of the
country to which the Court wherein any legal proceedings are taken belongs. (lex fori).

• The term lex causea means law applied to the case. It is generally the law of the foreign
country. But if lex causea is procedural in nature, then only lexfori would apply.
• Now the question is to how can one differentiate between procedural and substantive
laws.
• There are no hard and fast rules to determine the same. However courts in various
decisions have laid down some guidelines.

• In McKain v RW Miller, The High Court of Australia said that, the essence of what is
procedural may be found in those rules which are directed to governing or regulating the
mode of conduct of court proceedings.

• Supreme Court of Canada in Alverta ltd v. Wickman has proposed a test to determine
procedural and substantive law. The rule is that is the foreign law too inconvenient to
apply? If the answer is no then it is substantive or else procedural.
• Law of Limitation:
• At common law rules, rules of limitation were regarded as procedural and English courts
applied their own rules of limitation to all disputes even if they involved a foreign
element.

• This was based on the conclusion that rules of limitation merely barred the remedy and
not the right.

• In Huber v. Steiner, an English court held that the rights and merits of contract would be
determined in accordance with foreign law but rules which affect remedy are determined
by lex fori applying the above provision.

• In Harris v. Quine an English court gave relief in a claim governed by the laws of Isle of
Manx, disregarding a judgment of Manx court holding that the claim was time barred
because it was not time barred in England.
• The position of common law regarding limitation law are as follows.
• If both lex causae and lex fori regard the rule of limitation as procedural, the suit will be
dismissed if it is time barred under lex fori but will be allowed if not time barred under
lex fori.

• If lex cause regards the rule of limitation is substantive the action will fail if brought
after the period has expired. But if suit is in time in lex causea and beyond time in lex
fori, it will fail again.

• If both lex cause and lex fori regard it as substantive then the suit will fail if is beyond
time under both the systems but allowed if not time barred in lex causa.

• If the lex causea regards a rule of law as procedural and lex fori regards it as
substantive then suit will never be time barred.
 LEX CAUSA LEX FORI RESULT
PROCEDURAL PROCEDURAL NOT ALLOWED IF TIME BARRED UNDER LEX
FORI.
ALLOWED ONLY IF NOT TIME BARRED
UNDER LEX FORI.

SUBSTANTIVE PROCEDURAL ALLOWED IF BROUGHT BEFORE TIME

BARRED IN LEX CAUSA & LEX FORI.
NOT ALLOWED IF BROUGHT AFTER TIME
BARRED IN LEX CAUSA & LEX FORI.
NOT ALLOWED OF BROUGHT AFTER TIME
BARRED IN LEX CAUSA BUT BEFORE TIME
BARRED IN LEX FORI
NOT ALLOWED IF BROUGHT BEFORE TIME
BARED IN LEX CAUSA BUT AFTER TIME
BARRED IN LEX FORI

SUBSTANTIVE SUBSTANTIVE ALLOWED IF NOT TIME BARRED IN LEX

CAUSA
NOT ALLOWED IF TIME BARRED IN LEX
CAUSA

PROCEDURAL SUBSTANTIVE ALWAYS ALLOWED

• But the Law in England changed with the Foreign Limitation Period Act, 1984.

• Under this act the rules of limitation of lex causea are to be applied unless they conflict
with public policy.

• LIMITATION IN INDIA
• It is governed by Limitation Act, 1963.

• Section 3 empowers the courts to dismiss a suit if it is time barred

• Section 11 of the Act governs the contracts entered into in foreign countries but
subject to suits in India.
• 11. Suits on contracts entered into outside the territories to which the Act extends.—(1)
 Suits instituted in the territories to which this Act extends on contracts entered into in
the State of Jammu and Kashmir or in a foreign country shall be subject to the rules of
limitation contained in this Act.
• (2) No rule of limitation in force in the State of Jammu and Kashmir or in a foreign
country shall be a defence to a suit instituted in the said territories on a contract entered
into in that State or in a foreign country unless—(a) the rule has extinguished the
contract; and
• (b) the parties were domiciled in that State or in the foreign country during the period
prescribed by such rule.
• Parties to Proceedings and their capacity to sue or be sued
• In India generally who are the proper parties to suit and whether the suit will fail for non-
joinder of necessary parties would always be determined by the lex fori.

• Partnership
• Under CPC, a partnership can sue or be sued, at the option of the plaintiff either in the
name of the firm and by or against all the partners individualy. The same rule applies if a
suit is filed against the individual partners of a foreign firm.

• Corporate Bodies
• Whether a group of persons have legal personality is generally determined by the
appropriate foreign law. In Bumper Development Corpn v. Commissioner of Police of the
Metrolpolis a temple in Tamil Nadu, enjoying legal personality in Tamil Nadu was held to
be entitiled to sue in England. In Arab Monetary Fund v. hashim, a monetary fund
established in Abu Dhabi was held to be entitled to sue in England.
• Representative Proceedings
• This issue involves consideration of two settled priciples:
• i. the courts should as a matter of comity give effect to the curator’s right under foreign
law to sue in his own name;
• Ii. Municipal procedure should be applied.
• Applying the principle of comity certain representatives appointed abroad have been
held entitled to sue in England courts
• Trustee in banckruptcy
• Liquidators of a company incorporated abroad
• Receivers appointed by a foreign court
• Administrators of enemy alien property
• Curators of mentally deficient person if the mentally deficient person is joined as co-
plaintiff suing through a next friend.
• Following representatives appointed abroad have been held not entitiled to sue in
England courts:
• Representatives of the estates of the estates of deceased persons.
• Judicial administrators appointed abroad of ‘absent persons’; the court observed that
there were no corresponding provisions in English law enabling an administrator to be
appointed of absent persons.
• Procedure during the hearing of the suit
• Hearing of the Suit: All the formal rules relating to the hearing are decided by the lex
fori. Issues relating to summoning of parties are witness are also governed by lex fori.

• Facts in issue: When it is a question of substantive law then it is determined by lex

causea. The distinction is made on the ground what a party has to establish to succeed
(substantive) and how it is to be established (procedural)
• Admissibility of Evidence
• The lex fori determines what evidence is admissible
• Rules such as hearsay is governed by lex fori
• Whether a document can be regarded as an authentic will be decided by the court
applying its own rules.
• But it has been held in England that extrinsic evidence can be admitted to interpret a
document as that is a matter of substantive law to be decided by the lex causea.
Witnesses: The competence of witness and when and to what extent privilege attaches to
communication would be determined by applying lex fori.

Burden of proof: Lex Fori

Estoppel: It is not clear if estoppel is procedural or substantive. However a principal

cannot deny that an agent had authority should be determined by lex causea.
• Set off & Counter Claim
• Set-off is a rule of procedural law governed by lex fori.
• Counter Claim is governed by lex causea.

• Enforcement of Judgments
• Liability of a defendant may be determined by lex causea but the way how the judgment
or liability would be imposed is determined by lex fori.

• Damages: Remoteness of Damage: In common law remoteness of damage and claims in

tort are governed by proper law.
• Heads of Damage: It is also governed by proper law.
• Interest
• In common law whether or not interest is payable is determined by lex causea but the
amount of interest is determined by lex fori.