PRIVATE INTERNATIONAL LAW

COURSE CODE: T1489

CREDITS: 2

LECTURE BY –
RUSHIL CHANDRA, ASSISTANT PROFESSOR AT
SYMBIOSIS LAW SCHOOL, NAGPUR.
UNIT I – GENERAL PRINCIPLES
 WHAT IS INTERNATIONAL LAW?

• Public International Law and Private International Law

• International Commercial Law
• International Criminal Law
• International Arbitration
 WHAT IS THE NECESSITY OF PRIVATE INTERNATIONAL LAW?

• Let us understand this by the following examples first:

• 1. If an Indian male marries an Indian female OR an Indian citizen leased a property from another Indian
citizen OR 2 Indian citizens concluded a contract among themselves – then their legal relations will be
governed by the domestic laws of India. (Indian Personal Laws, Indian Contract Law, Indian Civil Code)
• 2. If an Indian male marries a French female OR a contract was concluded between an Indian and a French
citizen in Turkey OR a contract regarding the lease/sale or a real estate situated in Turkey. – Here, there is a
foreign element introduced in the relationship of the parties and this drives us to consider the elements of
other jurisdictions and not just the Indian law (the French and the Turkish laws as well). Like, we shall
have to find out whether the French female is capable to marry an Indian according to her laws of
nationality or not! In the subsequent example, we shall have to find out whether the contract being entered
into is valid according to the Turkish code or not.
• Now, the reason why we are so concerned with the applicability of these laws is that we wish to find which
court is competent to hear the case when a legal conflict arises between the parties to marriages or contracts
in the previously stated examples.

• Private International Law is often termed as the “Conflict of Laws”.

• In fact, it is taught as a subject under the heading “Conflict of Laws” in many Universities across the globe for
the very reason that it revolves around disputes between individuals from at least 2 different jurisdictions with
respect to Capability of the Court, Choice of Law and Enforceability of foreign judgments.
 PUBLIC INTERNATIONAL LAW AND PRIVATE
INTERNATIONAL LAW
• Similarity – Both exceed one territory in their application. And both of them share
International Treaties and Conventions as their major sources besides the peremptory
norms (Jus Cogens) – Customary International Law and International judicial bodies.
• Difference – Public International Law involves one nation State against another nation
State whereas Private International Law involves disputes between private persons from
two different jurisdictions (nation States). Further, Private International Law is
promulgated by the respective domestic Legislatures involves in the case.
INTERNATIONAL CONVENTIONS IN
JURISDICTION
• Brussels Convention
• Lugano Convention
• Codification attempt in Hague Conference
 CHARACTERIZATION

• Legal Relationship Identification – Step 1

• Connecting Factors – Step 2
• Choice of Law – Step 3
To the applied in the following manner in every case -
• Identify the legal relationship
• Determine the rights and obligations of parties
• Decide the remedies
CHARACTERIZATION

• When does it occur?

• When there is a foreign element involved in a case, then there must be characterization of
the factual situation
• In English law it is called “classification” and in French Law the same is called as
“Qualification”
THE ISSUE – NEED FOR CHARACTERIZATION

• Examples:
• Q1. A Nepali tribal woman has a property in India. She dies intestate. The case is filed in India upon
the devolution of property of this Nepali woman. By the virtue of the personal law (tribal laws) of
Nepal, Polyandry is permitted and therefore, the facts suggest that she has more than one husband
(say 2) and has 3 children.

• Does India recognize polyandry? (after confirming validity of marriage, the next question is-)
• If so, then the properties will go to the two husbands and the three kids
• If not, it will devolve on other legal heirs (her illegitimate children and then her siblings of first
degree)
VALIDITY OF MARRIAGE ON Q1.

• In Nepal its valid

• Is it valid in India?
• So, which matrimonial law do we apply here?? Do we apply the Indian Law or the Nepali
law? - this is exactly what characterization is – i.e. which law to apply – to govern a
given factual scenario/situation
• Municipal laws of succession will apply here
SECOND SCENARIO

• Q2. A Muslim man domiciled in India is in a polygamous marriage with a German

woman in who was living in England when they got married. The woman isn’t satisfied
with her marriage and now wants to get it a nullification decree from the court.
• As a general rule, polygamy is permissible under Muslim Law and hence valid in India
but the same is not valid in German or UK and hence a ground for divorce.
Q2. ON VALIDITY OF MARRIAGE

• Where it is a valid marriage or a void marriage

• So, due to the recognition of Sharia Law, this is a valid marriage in India and hence Indian
Courts wouldn’t grant a decree of nullity whereas in Germany or UK, she can get the decree
HYDE V. HYDE, 1866
&
BAINDAIL V. BAINDAIL, 1946– ENGLISH CASES

• In Hyde v Hyde, UK court held that a polygamous union of a man and a woman is not a
recognized union and hence not a marriage per se.
• In Baindail v. Baindail, the UK court though recognized a polygamous marriage while annulling
the second marriage
• [Prior to 1866 the scene was that say a Muslim man in India married a woman (any nationality)
but just 1 single woman & went to UK to settle down, then the UK courts of 1866 wouldn’t
have recognized his marriage as the personal law (Sharia) allowed for polygamy. This stance
was changed later – customs and personal laws of sects were recognized after 1946]
ISSUE AND COURT’S REASON

• In the first case, there was a particular sect that followed its own customs and in those
customs polygamy was permitted so the marriage rites were performed duly BUT only in
consonance with that sect and this wasn’t recognized by the Court.
• [Both first marriage + Second marriage were not recognized by UK courts]

• In the second case, since with the passage of time, the UK courts having observed that people
from multiple cultures were performing more and more marriages so they decided to be
liberal and changed their stance around 1946. So, English courts recognized the first marriage
and thereafter annulled the second marriage on the grounds of bigamy. [First marriage was
recognized but second wasn’t].
3RD SCENARIO

• An Indian guy entered into a contract with a French guy but the contract was without
consideration. Thereafter the Frenchman committed a breach of the contractual
obligations.
• Can the Indian guy sue him for damages in India?
• Is it a valid contract in the first place? - In India its void as per S. 25
• In French Law the contract would still be recognized as legal but the remedy would be
for breach of contract through liquidated damages.
• So, which route to adopt?
4TH SCENARIO

• A British man enters into a contract for marriage with a French woman and later on
refused to marry her.
• Under English Law he committed a breach of contract while under French law it is
treated as a Tort
• So, the characterization or the classification or the qualification of the problem/scenario is
different in both the jurisdictions
SO, WHAT IS THE WAY OUT?

• Therefore, any court that has jurisdiction to decide

• Must determine if the given facts create a legal relationship or not
• If the legal relationship is recognized then the court must determine the types of rights
and obligations it creates
• Without this classification/characterization, the courts cannot move to the next step –
deciding damages, etc.
RECAP

• Steps involved-

• What is the Legal relationship

• If it is there then
• What kind of rights and obligations is that legal relationship creating
• Then remedies, damages, etc to be decided.
HOW DOES LAW DEFER FROM NATION TO
NATION?
• Municipal jurisdictions have their own Procedural and Substantive laws and rules
• Say, in India and UK the statutes of fraud or registration law related issues are under the
aegis of Procedural Laws whereas in Civil Law nations like Germany or France they fall
under Substantive Laws
• Now, with respect to say, capacity to marry. IF its about a minor getting married then –
• In UK its governed by Procedural Law i.e. lex loci celebrationis or the place where the
marriage was performed. Whereas in German or France it is treated as a part of
“capacity” purely !
CONFLICT IN VALIDITY UNDER DIFFERENT
JURISDICTIONS
• Marriage by proxy is valid under Pakistan, Argentina, Texas, Colorado, Montana
• Marriage by proxy is invalid under Germany and India
FARAH V. FARAH, 1993

• Ahmed Farah, a citizen of Algeria & Naima Mansur, a citizen of Pakistan

• Married and had their matrimonial residence in Virginia for many years.
• Ahmed and Naima belonged to different Muslim sects.
• They signed a proxy marriage from Nikah Nama as per the tenants of Ahamadiyya sect.
• The Nikah stipulated a deffered payment of $20,000 as the dower
• The proxy marriage took place in London wherein neither Ahmed or Naima were present.
FACTS CONTINUED…

• After a month they both visited Pakistan and Naima’s father held a celebration in the form of a
Reception in honour of the couple. - Rukhsati ceremony (giving away of the bride)
• The couple returned to Virginia and jointly bought a house. This was treated as their
matrimonial home where they lived. After a year they separated.
• Ahmed filed a petition to have the marriage declared as void while Naima filed for divorce.
Ahmed sought a decree was nullity to ensure that there is no need to pay the dower money.
Ahmed argued that the proxy marriage was not valid under English Law as they had failed to
follow the statutory requirements of the Marriage Act, 1949 rendering the marriage void ab
initio
CONTINUED…

• Necessary formalities under English Law:

• 15 days residence by either parties prior to their marriage in that jurisdiction
• Compulsory registration of the marriage in the jurisdiction where it took place.

• Since the marriage was not statutorily performed so there was no marriage certificate was
there.
NAIMA’S ARGUMENTS

• Since Rukhsati ceremony was completed in Pakistan so it is Pakistani Law that must be
used to determine the validity of the marriage and not the English Law
 VIRGINIA COURT’S OBSERVATIONS

• Rukhsati was not essential or valid ceremony to conclude a marriage

• Since Sharia law only requires the parties to put their signatures in Nikah Nama and as soon as that is done, the
marriage is concluded (no necessity for Rukhsati)
• Under Pakistani Law, the parties had failed to sign Nikah Nama at the same time and hence its not a valid marriage
under Pakistani Law as well
• Furthermore, Naima belonged to a sect that Pakistan does not recognize as a Muslim sect/valid Islamic Sect
• Since the marriage was actually “legally celebrated” in England and that there is no valid marriage certificate so not
valid under English Law either.
• Since the parties failed to undergo a common law marriage in Virginia after settling down so its not recognizable in
Virginia either.
CASE CONTINUED…

• Since UK didn’t recognize proxy marriages so no marriage certificate was issued by the
authorities concerned.
• During the trial, various testimonies were presented and it was made clear that under
Islamic Law & Pakistani Law, Nikah was valid and completed as soon as the proxy
marriage was completed (as soon as both the agents put their signatures in the Nikah
Nama).
THEORIES FOR CHARACTERIZATION

• Methodologies employed by judges when there is a foreign element present in a case

• Characterization can be done using the following methods:

• By Lex Fori
• By Lex causae
• Theory of two-fold characterization
• Characterization based on comparative law
 LEX FORI THEORY

• First and foremost – suggested by Bartin:

1. Characterization should be done based on the internal laws irrespective of the presence of a foreign element.
In other words, whenever a matter reaches a court of law, the classification/characterization of the factual
situation must be done based on the laws of that municipal forum i.e. legal relationship, validity of laws, etc
have to be done by applying the Lex Fori of the jurisdiction. If no such legal relationship/corresponding law
exists under the municipal law then it must be done on the basis of analogy
2. Once the court determined the applicable law, it must then apply it just as it would be applicable in that
country.
BASIS OF LEX FORI THEORY

• This theory assumes that application of foreign law is based on the willingness
of the sovereign to restrict its own sovereignty.
• Logic behind analogy – say a case involving a situation which the local
jurisdiction of your country doesn’t recognize then the court shall have to
apply the law/legal concepts which are in close resemblance with/ most
similar to the laws of your own jurisdiction. (eg: Regime Des Bens) – once the
law applicable if identified then the courts would apply that law as it would be
applicable in the other jurisdiction.
 EXPLANATION

• A property is situated in London and the matter has been initiated before the Indian Courts.
• Now, the Indian judges would be inclined to apply the Indian laws + PIL rules of Inda
• While applying the PIL rules of India, since the rules suggest the application of the English law, Indian courts
would simply apply the English law because the property is situated in London.
• So, the Indian judge would apply the English Law in the same manner as he/she would have applied in England.
• If the Indian courts have identified that French Law has to be applied then they should apply the French Law as it
would have been applied in France. In other words they should not Indianize the French Law – the forum will be
Indian but the law applied will be French/English
PROBLEMS WITH LEX FORI THEORY

• Assume this theory is applied in case.

• Situations might arise that the law of the forum would be applied even though that forum
has nothing to do with the causation at hand
• Eg: - A (English) and B (Japanese) get married in Germany. Thereafter they bought a
matrimonial home in U.S.A. While they are on a tour to India, there were incidents of
domestic violence and the couple decided to file for a divorce.
• Now, both have submitted to the Indian jurisdiction but in no way is India related to this
case.
WHAT WILL THE INDIAN COURT DO?

• First – Apply the Indian PIL rules to determine which law to apply
• If by chance the Indian PIL rules say, apply Indian law (though this might not happen but just for
the sake of the example) – then Indian law can be applied for a marriage that took place in
Germany
• Now this is the problem with this theory !

• The assumption behind this theory is that a judge can only be well versed in the Indian Law here
rather than Japanese Law or German Law and thus its only reasonable that the judge applies the
Indian PIL rules.
 THEN, WHY IS BARTIN STRESSING ON THE
APPLICATION OF LEX FORI?
• Bartin points out that a judge is well versed only in the laws and rules of his own forum. If the judge must use
foreign law then he will be groping in the dark.
• Lorenzen, however, is of the view that this theory is actually based upon the concept of sovereignty of nations. He
observed that the system of characterization by the law of the forum is a necessary complement to the PIL that the
forum has adopted. Both are expressions of its sovereignty and the limitations that the nation is ready to accept.

Based on these arguments by Bartin and Lorenzen, this theory holds that before determining which law to apply
(foreign or domestic), reference must always be made to the law of the forum before which the parties have filed the
matter.
CRITICISMS OF LEX FORI THEORY

• Wolf and Beckett – A universal application of this theory would result in application of
neither the law of the forum not lex causae but of the law which is of neither.
• So, lets say, the judge’s approach is that first I shall apply the Indian PIL rules then if
those rules suggest that some other jurisdiction’s laws have to be applied then I shall
apply the laws of that jurisdiction. So, Japanese Law is being tried to be applied by the
Indian courts – trying to fit a square peg into a circular hole -
NOTORITY IN OGDEN V. OGDEN

• Minor marriage is valid without parental consent in England

• As the condition is only pertaining to the formal validity, it was recognized as valid in
England
• Whereas in France, the same was treated as material validity (substantive law
requirements) and hence held invalid
• In England, the procedural validity was looked into after application of lex loci
celebrationis while in France substantive validity was looked into by applying the rules of
nationality.
LEX LOCI THEORY – NOT PROPER

• Bartin’s theory was criticized as it actually lead to undesirable results. It apparently

distorts foreign rules and institutions as well as completely breaks down when no analogy
between the internal and the foreign rules exist.
• Therefore, no nation has accepted Bartin’s theory in its entirety.
LEX CAUSAE THEORY

• This theory was propounded by Despagnet and Martin Wolf.

• They hold that every PIL rule takes classification from the legal system to which it
belongs. So if its French Law then it will classify as per French Law and therefore if say
the English Courts are examining he applicability of French rules then they must take
French Classifications into account.
• Only in cases where there is either explicit or implicit laws forbidding the application of
foreign classification, a judge can make use of the law of the forum.
THEORY OF TWO-FOLD CHARACTERIZATION

• A mashup of both the previous theories

• Primary Classification – Lex Fori
• Secondary Classification – Lex Causae
• If there is more than one Lex Causae, use Lex Fori – if only one Lex Causae then use Lex
Causae

• Criticism – Too mechanical and artificial in its application

CHARACTERIZATION BASED ON COMPARATIVE
LAW
• Propounded by Rabel and Beckett
• Characterization must be based on the analytical jurisprudence on the basis of
comparative study
• Whenever there is a confusion as to the application of the foreign or domestic rules, the
idea is – that to perform their jobs properly, the judges must apply law in a way that it
appreciates all the rules of all legal systems
HOW TO GO ABOUT IT?

• According to Beckett: case can be divided into 3 types –

• Without any characterization of a rule – apply internal law – apply lex fori
• Involving characterization of a rule – apply the ordinary principles of private international
law based as supported by the internal law
• Involving characterization w.r.t. foreign rules and the jdge after having applied the
Internal Law feels that its in fact a foreign law which is better suited to the situation at
hand then characterization must be done based on the analysis of both the internal and the
external or foreign law.
CRITICISM

• Vague and Impractical

• NO uniform methodology
• No uniform PIL rules
• Domestic laws of different jurisdictions cannot be compared with one another
• No judge is supernaturally intelligent and all knowing
RENVOI

• First stage – based on the factual situation, legal characterization of the particular issue will
be done
• Stage 2- what is the connecting factor i.e. the “seat” of the legal relationship
• Stage 3 – Identify what is the proper law based on which justice is to be rendered in the given
set of factual situation

• While identifying the proper law to be applied, certain issues might arise so, if such issues
arise then we will be going on to the concept of Renvoi to ensure that the problem is resolved
WHEN TO APPLY RENVOI

• In the last stage of characterization, we identify the connecting factor i.e. we are supposed
to choose a law of a particular nation to apply for rendering justice.
• This raises a question – What comprises the law of a nation??

• Procedural Laws + Substantive Laws – Internal Laws

• Procedural Laws + Substantive Laws + Private International Law of that Nation – internal
+ External laws
EXAMPLE

• Suppose a case with a foreign element presents itself before an Indian court
• Therefore, due to a foreign element present in the case, the Indian private international
law rules will be applied
• Say, the last stage of characterization reveals that the French Law has to be applied
• Now, Q = What is French Law? - Does it mean the internal laws of France? i.e.
procedural + substantive laws only or does it mean Internal laws + PIL i.e. procedural +
substantive laws of France + PIL rules of France ?
• So there are in fact two scenarios.
IN A NUTSHELL

• The laws of a country/place = Internal Laws of that country OR the whole law off that
country i.e. including the rules of PIL. If the PIL of that country directs that only its
municipal law applies then we apply the that only
• Now, sometimes it so happens that the PIL rules of that country might either
1. Refer back to the law of the forum (single renvoi)
2. Refer forward to a third country (double renvoi)
EXPLANATION

• Say, there is a case in India having elements of French and German law. Now if the Indian
PIL rules give way to the application of French Law then French Law will be considered
AND AT THE SAME TIME
• Say, French PIL says apply the French Law then French Law will simply be applied
• If however, the French PIL says apply the Indian Law then it will be a referral back to the
Indian forum and the Indian Law will apply
• If, the French PIL says apply the German Law then it is referred forward to the laws of a
third country i.e. Germany and the German Law is applied by the Indian Courts.
SINGLE RENVOI (X>Y>X)

• Say, Indian Courts apply the PIL rules of India

• Then in the 3rd stage of characterization if the Indian courts identify that they must apply
the French Law as it is the proper law then while applying the French law, the Indian
courts refer to the PIL rules of France
• Now, it so happens that the French PIL rules say that in such a scenario Indian law has to
be apply not the French law then it will be a reversal back to the Indian Law and the
Indian courts will apply the Indian law
• This is called a Single Renvoi
DOUBLE RENVOI (X>Y>Z)

• Indian Courts apply the Indian PIL rules

• And in the 3rd stage of characterization the Indian PIL says that the proper law of the
forum is the French Law then the Indian Courts apply the French PIL
• But the French PIL says apply the German Law
• Therefore, the Indian Courts will apply the German Law
• This is called Double Renvoi or Transmission
SO, IN TOTO THERE ARE 3 SCENARIOS FOR
APPLICATION OF LAWS
• 1st scenario = Indian PIL says apply French Law and French PIL says apply French law –
then French Law shall apply
• 2nd scenario = Indian PIL says apply French law and French PIL says the correct forum is
India and application of Indian Law – therefore a reversal back to Indian law is observed
– then Indian Law will apply (Single Renvoi)
• 3rd scenario = Indian PIL says apply the French Law and the French PIL says apply the
German law – then the Indian courts will apply the German Law (Double Renvoi)
CASES WHERE RENVOI CAN BE APPLIED

• Morris points out that “as a purely practical matter, it would seem that a court should not
undertake the onerous task of trying to ascertain as to how a foreign court would decide
the question, unless the situation is an exceptional one and the advantages of doing so
clearly outweigh the disadvantages”

• In most scenarios – the balance of convenience lies in interpreting the reference to foreign
law to mean its domestic rules.
• Paras Diwan also is of the same view
THEREFORE, FINAL PROCESS

• If there is a foreign element involved in a case

• Go through the process of characterization
• If you are able to go through all the stages of characterization and are able to identify a
proper law
• Then apply that proper law
• BUT if you are coming to some exceptional situation where you are unable to identify the
proper law then in such situation invoke the concept of renvoi
CHARACTERIZATION

• When does it occur?

• When there is a foreign element involved in a case, then there must be characterization of
the factual situation
• In English law it is called “classification” and in French Law the same is called as
“Qualification”
FORUM NON-CONVENIENCE

• Expense + injustice = inconvenience

• Spiliada Rules (Spiliada Maritime Corporation v. Consulex Ltd.)
• Appropriate Forum – more suitable for the interests of the parties + more suitable for
meeting the ends of justice
• The burden of proof is upon the Defendant to show that another forum is available
• Available = The Claimant must be able to begin the proceedings against the Defendant in
the other forum as of right, either because the case galls within the jurisdiction regularly
exercised by the courts of the country OR as a result of the jurisdiction clause.
• Mac Shannon Case, [1978] A.C. 795 + Connelley v. RTZ Corp. PLc. [1998] A.C. 854
WHEN THE MATTER TRANSMITS FROM X TO Y

• Then the Defendant has to argue before the Court that the convenient forum / appropriate
forum for delivering justice to the parties is Y instead of X.
• The argument must be based on two-fold logic :
1. In terms of expenses incurred – say X is more expensive a forum and its laws would
result into a lengthier proceedings as compared to Y’s hence Y is a more appropriate
forum
2. In terms of justice – for meeting the ends of justice, Y is more appropriate a forum.
WHAT DOES RENVOI DO?

• If actually reverts the matter back to the courts of first instance

• OR
• Transmits the matter to another jurisdiction and another forum and apply its laws while
sitting in its own jurisdiction (courts)
SITUATIONS IN WHICH YOU HAVE TO USUALLY
APPLY RENVOI
• In case of “Title to Foreign Lands”
• Lex Situs is always preferred in cases of immovable properties situate in foreign jurisdiction –
by the very nature of things, a permanent and exclusive physical control over the property is
necessary. It would, therefore be a more realistic approach to determine the title of such a
property by the application of the law of the situs of the property (Re Ross case)

• Any jurisdiction that ignores lex situs would be brutum fulmen (ineffectual judgment) – held
in Re Ross case.
SITUATIONS IN WHICH YOU HAVE TO USUALLY
APPLY RENVOI
• Title to Foreign Movables:
• It has been suggested that the doctrine of renvoi should be equally applicable to movable
properties situated abroad.
• But since the situs of movables can always be changed, the argument is not so strong as
in case of foreign immovables.
• So we choose the lex domicilii of the person to whom the movables belong to the proper
law for adjudication in a matter
SITUATIONS IN WHICH YOU HAVE TO USUALLY
APPLY RENVOI
• Formalities of Wills:
• Doctrine of renvoi is preferred in all matters of wills
• Cheshire suggests that a grant of probate to wills should not be denied on the ground of
formal invalidity if the instrument is formally valid as per the rules of PIL

• Don’t go for the place where the will was made rather go for the jurisdiction where the
will was executed – if the internal laws of that place recognize the will then so be it.
MORRIS CRITICIZES CHESHIRE ON WILLS

• Morris has doubted the expediency of this indulgence.

• The Wills Act, 1962 (English Act) excludes the application of the doctrine of renvoi to the
formal validity of wills, even in respect of immovable properties.

• It leans very favorably in respect of formal validity of wills by making a will formally
valid if it complies with the formalities of the internal law of the place of execution, of
the domicile of the testator, of the habitual residence of the testator or the nationality of
the testator.
SITUATIONS IN WHICH YOU HAVE TO USUALLY
APPLY RENVOI
• Status of marriages:
• It has been suggested that the status of marriages should be recognized by lex domicili
and lex loci celebrationis everywhere
• In view of the special favour shown all over the world w.r.t. the institution of marriage
and for the sake of uniformity in the rules of PIL, the view that is generally considered is
that the change in the status of parties to marriage effected outside the country of
domicile of the parties should be recognized everywhere else if it is recognized by the
country of the domicile of the parties.
SITUATIONS IN WHICH YOU HAVE TO USUALLY
APPLY RENVOI
• The American Restatement of Conflict of Laws favours the application of lex domicilii in
all matters of status – marriage, contracts, capacity, etc.

• Lorenzen has suggested that marriage status should be recognized if it satisfied either the
law of the place where it was performed or the law of the domicile of the parties.
SITUATIONS IN WHICH YOU HAVE TO USUALLY
APPLY RENVOI
• International Conventions:
• Sometime back, the doctrine of renvoi was an expedient means through which nations of
the world could come together for framing international conventions.
• This importance of renvoi has been lost in our contemporary world.
• So, as of now there is no uniform structure
SITUATIONS IN WHICH YOU HAVE TO USUALLY
APPLY RENVOI
• Transmission:
• As far as transmission is concerned, Morris advocates the application of the doctrine to certain
cases of transmission only.
• He says that “the foreign law referred to by the English courts refers to a second foreign law,
and the second foreign law would agree that it was applicable, the case for applying the second
foreign law is strong”
• It also covers the scenario wherein if two or more country’s PIL rules suggest the application of
the laws of a third country then there should be no doubt as to application of the law of that third
country
MORRIS’S VIEW CONTINUED

• Morris proceeds to say that if the second foreign law would not agree that it is applicable,
then there seems to be no reason why it should be applied.
• Thus, if a German national domiciled in Italy died leaving behind movables in England,
and the Italian and German Laws agree that German domestic law is applicable because
the propositus at the time of his death was a German national then the English courts
should apply German internal laws to the matter at hand.
• On the other hand, if a Danish national domiciled in Italy dies leaving behind movables in
England and if the Italian law will apply the law of nationality and Danish law would
apply the law of the domicile, neither law recognizing any renvoi from the other it seems
that the English court should go on by its own laws and apply Italian domestic law.
MORRIS SUGGEST THAT THE DOCTRINE HAS NO
PRACTICAL UTILITY
• One would be heartily inclined to agree with Lorenzen when he says, it may reasonably be
hoped that, when the doctrine with all its consequences is squarely presented to the higher
English Courts, they will not hesitate to reject the decisions of the courts that have lent
colour to renvoi in English Law. (In appeal cases)

• Happily there is no Indian case which directly supports (indirectly yes) the doctrine of
renvoi and it may be hoped that out courts would not be tempted to apply the doctrine just
because they have found favour in certain decisions of English courts and with some
eminent English writers like Dicey and Westlake.
LANDMARK CASES ON RENVOI

• Re Ross
• Forgo’s Case
• Collier v. Rivaz
• Re Duke of Wellington
JURISDICTION

• Even when dealing with purely domestic matters, the question of jurisdiction of the courts
still comes into picture
• Jurisdiction = the competency / authority of any court to deal with a particular subject
matter.
• As per S. 15 – S. 25 of the CPC, 1908 jurisdiction has been discussed under the head –
“the place of suing”
• S. 15 – Every suit shall be instituted in the lowest grade court which is competent to deal with the case
• S. 16 – Suit to be filed in the court within the local limits of whose jurisdiction the property is situated.
• S. 17 – Suits for immovable property situate within jurisdiction of different courts then all courts have the
cognizance to try the case means in any court the case may be filed.
• S. 18 – Place of institution of suit where the local limit of the jurisdiction of the courts are uncertain
• S. 19 – Suits for compensation for wrong to person or movable
• S. 20 – Other suits to be instituted where the defendant resides or cause of action arises.
JURISDICTION CAN BE DIVIDED INTO 3 BROAD
PARTS
• Against whom the action may be filed ?
-position in English Law & Indian Law
• Submission to Jurisdiction (voluntary submission of the Defendant)
- Position under English law and Indian Law
• Jurisdictional Immunity (diplomatic or sovereign immunities)
- Position under English Law and Indian Law
 CONTINUED

• Who may file a suit ? (who is the Plaintiff)

• Action in Respect of Property

- English and Indian view points
SO, WHAT ALL IS COVERED UNDER
“JURISDICTION” AS A CONCEPT OF LAW ?
• The Area, boundaries, vires of a legal authority
• Jurisdiction is an area which covers Constitutional Law, Public + Private International
Law
• The legislative and executive jurisdiction falls more perfectly into the realm of private
international law as it actually talks about the territorial limits of the State
• Legislative Jurisdiction, Executive Jurisdiction and jurisdiction of municipal courts all
fall under the territorial theory. Every State has jurisdiction over everything situated
within and over every person present within its territories.
• When extra territorial effect is given to laws – the main question is how does PIL view
these laws ?
• Generally they are not given effect
• By allegiance, a citizen has to obey his State’s laws no matter where he is and by same
scheme all persons within a jurisdiction also have to owe allegiance to the State they
reside in.
• (So – you have to respect your Parent nation’s law + you have to owe allegiance to the
law of the nation in which you reside – no matter how short your visit is)
ALLEGIANCES

• Common law nations – follow the principle of Lex Domicilii

• Civil Law Nations - follow the principle of Lex Patriae

•
MODERN TENDENCY OF COURTS

• Look at the Ordinary / Habitual Residence of the individual and take that has the basis of
jurisdiction instead of domicile or nationality

• For internal cases jurisdiction is based on territorial basis plus pecuniary basis
• While for international cases there is a further question - can Indian Courts try the cases
involving foreign elements?
• Once this question is answered in the affirmative- only then can they move on to the
questions of territorial or pecuniary jurisdictions.
THEREFORE, THE TWO MOST IMPORTANT
QUESTIONS
• What types of actions may be filed ?

• Against whom can an action be filed ?

WHAT TYPES OF ACTIONS MAY BE FILED ?

• Actions Inter-Party : Personal actions like breach of contracts, torts, loans or obligations
- Rights of parties between themselves are adjudicated. Many related to obligations payment
of damages for breach of contracts, torts or actions for recovery or loan amounts.
- Here the point to remember is that all actions inter-party are binding only on the parties to
the transaction.
- Actions related to properties.
- Actions related to statuses – marriages, custody, guardianship, adoption, legitimacy,
contracts, etc.
AGAINST WHOM THESE ACTIONS MAY BE
FILED?
• English View Point –
• As long as summons are served upon a person (what we call is summons, they call it as
process – so as long as process is served upon a person) then English Court can assume
jurisdiction even if he is a foreigner or casually present as a tourist or a person in transit.
• Even if subject matter is in no away connected with Englan, if process is served English
Court has jurisdiction. But if unable to serve process even if a matter closelty connected
to England, their courts cannot try it
• Thus, in respect of actions inter-party English Courts have jurisdiction if :
- Defendant present within jurisdiction
- Court assumes jurisdiction against absentee defendant – Order 11 CPC
- Defendant submits to jurisdiction
PRESENCE WITHIN JURISDICTION

• If the defendant is present within a jurisdiction + summons have been served upon him by the
courts then the Courts will have jurisdiction over his case

• Watkins v. North American Land Co. – If the Defendant brought within the jurisdiction by fraud
or force and then summons were served then it is not a valid summons and the same shall have to
be quashed.

• Maharanee of Baroda v. Wildenestein – Mere presence in jurisdiction is enough and there is no

need to have a residence
WATKINS CASE ENSURES THAT -

• It ensures that someone is not kidnapped from some part of the world and then brought
into England and then summons are served upon them
• So, their presence in England must be VOLUNTARY
• This is based on the rule that whoever is present within the realm be it a citizen or a
foreigner is deemed to have allegiance to the sovereign.
MAHARANEE OF BARODA CASE

• The Maharani had purchased a painting from the Defendant in 1965 while she was
visiting Paris.
• The painting was delivered to her home in Paris.
• She had brought the painting to England and asked two art experts for their reviews on it
• The experts deemed it to be a fake – not painted by Bonchure (as claimed by the Def)
• The maharani then brought a writ against the Defendant claiming rescission of the
contract of sale and payment of the price + unliquidated damages.
MAHARANEE’S RESIDENCE WAS IN BOTH PARIS AND
ENGLAND – THOUGH THE USED TO STAY MOSTLY IN PARIS

• The summons were served on the Defendant when he came to England in 1970 to attend
the Ascot horse race.
• Defendant applied for stay of action as it was difficult for him to defend himself in
England.
• Both the parties to the suit lived in Paris but they visited England occasionally to look
after their horses as they both were into betting on horse races
• English Courts opined that the case can be tried quickly and fairly in England.
RAZELOS V. RAZELOS

• In this case it was held that even if the defendant leaves his country after serving of process the
court will continue to have jurisdiction over him.

• For instance, A Ukrainian Man and a Mexican man entered into a money lending transaction
and disputes arose while they were in France. Let us suppose the Mexican filed the case in
England. The Ukrainian was on his way to Delhi in flight while the case was filed. The flight
made a pit stop in England. During this stop summons were served upon the Ukrainian, even
then the English Courts will have jurisdiction.
• The summons or the process must be served by the plaintiff or his agent
SUBSTITUTED SERVICE

• Substituted service is permissible if and only if :

• Defendant went outside the jurisdiction to evade serving of summons
• Went outside for some other reason but had knowledge of issue of writ before he went
outside the jurisdiction
• Summons can be served on anyone / their agents in their principal place of business – in
all these scenarios the notice is deemed to have been served upon the Defendant.
AGAINST WHOM ACTION CAN BE FILED

• English Courts can have jurisdiction if the Defendant has been served with the process –
even if he is a foreigners or casually present as a tourist pr person in transit.
• Even if the subject matter is in no way connected with England, if the process is served
then the English Courts have jurisdiction.
• But if unable to serve the process even if a matter is closely connected to England then
the courts cannot try it.
THEREFORE IN RESPECT OF ACTION INTER
PARTIES
• English Courts have jurisdiction if:
• The Defendant is present within their jurisdiction.
• The Defendant voluntarily submits to the jurisdiction of the Court.
PRESENCE WITHIN JURISDICTION

• If the Defendant is present within the jurisdiction and the summons are served, the Court
shall have jurisdiction over the case.
• Watkins v. North American Land Co. and Maharani of Baroda v. Wildenestein
IF THE DEFENDANT IS NOT PRESENT IN THE ENGLISH
TERRITORY(ABSENT) CAN THE COURTS STILL HAVE
JURISDICTION ?

• Whenever process/summons is served upon the Defendant, the British Court

automatically assumed that it has jurisdiction over the matter.
• Say, the Defendant is absent from England and it is impossible to serve a process upon
him.
• Not even substituted service is possible.
• In such a situation, the English Courts shall assume jurisdiction if certain situations are
met.
ASSUMED JURISDICTION

• Around 19th Century the situation of common law was that if the Defendant was outside the
territorial confined of England, then no summons could be served upon them
• So, even if lex situs was England, they were unable to apply the English law because the
Court could not have jurisdiction if the Defendant was absent from the territory (outside its
jurisdiction)
• To resolve this issue – rules were made from time to time which were later on consolidated as
Order 11 of the SC Rules of England.
• It is to be remembered that the Court is not bound to entertain action even if it listed under
Order 11 of SC rules.
• Order 11 - SERVICE OF PROCESS ETC. OUT OF THE JURISDICTION
JURISDICTION CAN BE ASSUMED IN THE
FOLLOWING CASES
• When the Subject Matter is within its jurisdiction

• When any action, deed, will, contract, obligation, liability affecting land within the
jurisdiction, when it is sought to be set aside or enforced in an action.
CASE LAWS

• Cassey v. Arnott : It was observed that this particular jurisdiction of the Courts was very
wide, but it will come into play only when it affects the land directly and not the values
alone.
• Kaye v. Sutherland : In this case, a claim was made by a tenant of a farm to recover
compensation for improvement, and it was allowed, even though the Defendant fell
outside the Court’s jurisdiction. [directly affecting the land]
• Agnew v. Usher : In this case, it was held that the claim will not include an action for
recovery of rent. [ since it will not directly affect the land]
• Levene v. Inland Revenue Commissioner: Held that, residence must be habitual and
distinct from temporary/casual stay.
Say, a person was in an English hotel for sometime and before the summons were served,
he returned to his home country then in such cases, we cant say that since he was
temporarily residing in England so the courts can have jurisdiction – he should be having
habitual residence in England.
IN CASE OF BREACH OF CONTRACTS MADE IN
OR OUTSIDE ENGLAND

• If the performance of the contract has to happen in England then English Courts shall
always have jurisdiction - provided that the Defendant was not domiciled or ordinarily
resident in Scotland)
ACTION BEGUN IN COURT PROPERLY BROUGHT
AGAINST PERSON
• If there are more than one Defendants in a particular case and one of the main Defendants
in present in England and the rest are scattered outside England.
• Now, the process is served only upon that one person who was present in England then
even though the rest of the Defendants are outside the territory of England, the English
Courts can assume jurisdiction over them.

• Now, there are some pre-requisites for applicability of this rule:

PRE-REQUISITES – FOR ASSUMING
JURISDICTION
• William v. Cartwright: In this case it was observed that, the three main conditions for
application of this rule are –
1. The action was properly brought against the Defendant who was the main party to the
suit.
2. The process must have been duly served upon the main Defendant.
3. Other defendants who are outside England must be either necessary or proper parties.
STATUTES THAT GRANT JURISDICTION TO THE
BRITISH COURTS
• If the action is brought under the following:
1. Carriage by Air Act, 1961
2. Carriage by Road Act, 1965
3. Merchant Shipping (Oil Pollution) Act, 2006
4. Nuclear Installation Act, 1965

Then the British Court shall have jurisdiction over the matter.
CARRIAGE BY AIR ACT

• Based on Warsaw Convention of 1929 – amended in 1955

• Relates to International carriage of goods or passengers by air
• Action for damages can be brought at one of the following places:
1. Before the court at the place of destination.
2. Before the court at the ordinary place of residence of the carrier / principal place of
business / has an establishment by which contract was made.
3. Can bring action both against the airline as well as the actual carrier also.
CARRIAGE OF GOODS BY ROAD ACT

• Based on Geneva Convention of 1956

• Relates to International carriage of goods by roadways
• Action for damages can be brought at one of the following places:
1. Where the Defendant has principal place of business / branch / agency / ordinarily
resident
2. Place where the goods were taken over by the carrier or the designated destination.
MERCHANT SHIPPING (OIL POLLUTION) ACT

• Based on Brussles Convention of 1969

• Civil Liability imposed on the owner of the ship from which there has been consistent oil
leakage
• Also provides for compulsory insurance against liability / oil pollution based damage as
well as direct action against the insurer.
• Case can be filed in courts of contracting state or state in which damage was caused.
CARRIAGE BY RAIL ACT

• Three different Berne Conventions are involved here –

1. 1961 – for Goods
2. 1961 – for Passengers
3. 1966 – liability for death or injury
(No action can be brough in UK unless in accordance with there three conventions)
• Applies only for international carriages.
• Liability has been fixed on the railways operating the line where the accident took place.
NUCLEAR INSTALLATION ACT

• Based on the Paris Convention of 1960

• Fixes the liability on the operations (including foreign ones) and the jurisdiction in courts of
contracting parties where the nuclear incident happened.
• If the incident happened partly within the territory of the contracting party and partly outside its
territory, then the jurisdiction of the contracting party prevails.
• If unable to determine the area of damage with certainty then the jurisdiction lies with the court
where the operator (of nuclear installation) is situated.
• In case of contract which has a specific terms that state that the jurisdiction lies in a particular
court, then the same will be followed.
IN CASE OF DAMAGE OR LOSS OF LIFE DUE TO
COLLISION OF SHIPS
• English Courts shall have jurisdiction if:
1. Defendant’s habitual place of residence is England / his place of business is in England.
2. Collision occurred within inland port / limits of English port
3. Action is arising out of same collision already proceeding in court
4. Defendant agreed to submit to the jurisdiction of British Court