Private International Law

Chapbert

Application of Put until law

Whenever there's a foreign element in
a domestic case sometimes the court
will have to determine

C Jurisdiction court
of
ii
If it does have jurisdiction will the
case bedeeded awarding to domestic
law or foreign law

iii when will domesticjudge recognize

a
foreign judgement
Under the doctrine
of soverign equality
of nations courts ofthe
one country are not
bound to
follow judgements of
foreign countries
There is no uniformity in the laws
the world regarding when
of
the domestic
court can assume jurisdiction over cases
having a foreign element
Cheshire
Private International law is the partof
law which comes into play when
the issue before the court affets some
facts events or transaction that is so
connected with a foreign system
closely to
law as necessitate recourse to
of
that system

Put Int 4 law is basically a branch of

law
municipal of every country
The need for private international law
arises because different countries have
different systems of law
When can
conflictof laws arise
when a case involves 2
legal
systems that differ
 when a case involves 2 laws
the same legal system that
of
conflict

What is Indian law

Indian law rules of law used for

narrow sense
adjudication
Indian law includes put.int't law
wide sense

Nature private international law

of it
indicates the governing law under which a

case is to be decided

Subject matter international law

of private
Common law systems
differ Civil law systems
for
 Civil law systems
Restrict scope
Germany Switzerland
Scandinavian international law
countries
of private
to

laws
problems of conflict
and problems of status
of
of foreigners
comes under the branch laws of foreigners

Soviet Union Peoples Restrict scope

Democracies of
of Eastern international law to
private

Europe
conflict of laws and
include rules relating to conflicts of
jurisdiction left to procedural law

Common law systems

Common law
systems tend to include the
rules of jurisdiction as well as rules
of choice of law within the scope
of
private international law
 Although in India rules relating to
jurisdiction of court and rules relating
to recognition and enforcement of
foreign judgements are laid down
in the Civil Procedure code yet
Indian courts have all along consider
the jurisdiction court and rules of
of
choice of law to be within the ambit
international law
of private
Here in India

Rules relating GmId n

to recognition p c of courts
andenforcement
of foreign decrees
Rules relating to
choiceof law

Note It may happen that in a case the quest

of jurisdiction is decided in favour of one
system of law and the question of choiceof law is
decided in favour another system of law
of
 Jurisdiction court
of
one case
Choice of law

Jurisdiction of court
Law
of procedure of every country lays
down in what matters court will have
jurisdiction
Sometimes could enercises
jurisdiction in the
absence of the defendant but such
judgements may not be recognised
elsewhere

its
Sometimes court can't enercise
jurisdiction when defendant is absent
a when a suit is filed before the court it
matterswhether the court has jurisdiction
b when the question before the court is
of the recognition of a foreign court
Normally the court that is capable of
enforcing its judgement has jurisdiction
over the matter

In case immovable property

of will lie with court
jurisdiction
where the property is situated

movable property
In case
there is ofno such unanimity
matters
in case
of personal
Civil systems courts with
nationalizhane
Common law Mudskish
systems domicile have
jurisdiction
Sometimes the question
of jurisdiction is
not just related to jurisdiction
of local
courts it may be whether the foreign
 court had junsch on n the internat nal
is to apply to it
sense
if res judicata

Choice of law

After the court decides that it has

jurisdiction the rent question is
which system of law should be
applied
Example 0 O
n n
Burmese Chinese
Resident
Resident
Trader Trader

shipped
Kgoods
Calcutta

Court of
Calcutta
which law should the court
apply Indian law
Chinese law
Burmese law
 It is not the province of private Cnt't law
to say which rules of foreign law
are to be applied once that law is
indicated by its choice law rules
of
Note If is not necessary that the suit
will be governed only by one systemof
law It can happen that on different
aspects of the suit different systems
law apply
of
Enample
of formal validity
19min
ten celebrations
Adjudication in question of capacity to
respect ofmarriage marry
en domicili

questions relating to
procedure cen fori
Reasons
for Application of foreign law
Principle of Comity of Nations
It is necessary
for the determination
ofnights of
parties

To satisfy the demand

of justice
Historical Developments and Theories
Private international law
of
Era of territorial law Roman Empire disputes
between Romans and aliens was decided by
a different branch
of law so there was
no chance
forprivate international law to
grow

Era Personal lanes After the fall of the

of
Roman Empire territoriality ended and
Samons and serbians for example were
gove ned
by their own lanes wherever they wen
The only cases where you were NOT governed
by the law of your country was
Criminal law
Cannon law

Era of Feudalism and City States

In feudalism there is no place for personal
laws Feudalism does not tolerate the
of anyapplicat
foreign law on
Era of Statutists In this
13ᵗʰ century
century trade and commerce between city states
had reached its zenith In the interest of
trade and commerce city states recognize
each other's laws

In this stage Roman law was twice

d The glassators hung the rules of
private international law on certain
doubtful rules of corpus juris
Bartolie's Statute Theory This theory
meant to solution to the
was provide
conflict of laws of Italian city states 2
between laws and other city
states
of Italy
a Statutes
relating to person
b Statutes relating to things
c Mined statutes
note statute in the middle ages meant
any law or custom which prevailed in
any city of Italy contrary to Italian
law
 Dumoulin and D Argente both
accepted division of statutes into
two Dumoulin enaggerated the scopeof
personal laws and D Argentre was
partial to territoriality of laws

Modern Era
Freidrick Carl von Savigny propagated
a new theory The entire civilized world
should adopt one uniform system of private
international law
According to him every legal
relatio ship
should belong to some law and
therefore the object of private
inte national
law is to
find out
the seat of
every legal relationship
Evolution ofEnglish private
international law
In the beginning private international law
could not develop in England because ofthe
rule that all soils before the English courts
must be ruled by English law

In 17ᵗʰ century
although the English courts
could entertain suits having foreign element
were reluctant to entertain them
they

Gradually and slowly rules of private

international law began to emerge such
contracts torts
as
of legitimacy ele

Evolution of Indian Private

International Law
During Gupta and Maurya empires trade and
commerce flourishing During this
was period
law in India was territorial
In the MughalEmpire
many mallets
rules of muslim law became applicable
In personal matters the entire area of
family law for instance it was personal
law of the parties that applied

During the British period various communi

ties were ruled by their personal law in
personal matters However the special
Marriage Act 1872 1928 made it so that
parties ceased to be governed in most
matters the law their respective
by of
community

This continues to be the situation even now

in personal matters laws in India are not
territorial but personal

During the Britishperiod India developed contacts

not merely with the countries of the British
umpire but also with other countries the
result was cases with foreign elements did
come for adjudication before the Indian courts
 indian courts decided them mostly by applying
rules propounded in English decisions

law
Theories of Private international

1 Statute Theory
2 International theory
3 Territorial theory
4 Local law
theory
5 Theory
of justice
09 form
1 Statute Theory French version
Dutch version
17th 18ᵗʰcentury developmen
of the theory

Originatform
Considering the object of law statutes
were classified under 2 heads
Bartolus added a third kind
a Statutes
Splatonalia
to
relating person
b thingsstatutalia
Statutes relating to
c Mined statutes
 Real statutes were essentially territorial
Personal statutes applied to persons
do iciled
within the territories of the state
enacting those statutes
Mined statutes applied to all acts done
in the country enacting such statutes
even when litigation in respect
of such
in another
albs was filed jurisdiction

Charles Dumoulin 2 Bertrand

FarmhousesThe endeavour the French
of
jurists was to make the statute theory applica
ble to each and
every legal relations

Dumoulin Governing law of a contract

was the one intended
by the parties to be
applicable

D Argentine Favoured the territoriality of

law Whenever there was doubt about
whether a rule was real personal or mined
it should be treated as real
 Dutchression
Frisian Ulric Huber
Laws of each statute operate within
its territory and are applicableto
territorial all its subjects but beyond its
territorial boundaries they have no
operative force
Lanes state are applicable
of a
to all those persons who are
territoriality within the realm
irrespective of
the fact whether they are
perma ent
residents or casual visitors

By comity every sovereign accepts that

Entraterritorial a law which had come into operate
effect on in its country shall
of origin
its force everywhere provide
conifgantum retain
of it does not cause any prejudice to the
pressure
international subjects of the sovesign by whom its
commerce
recognition is sought

Dutch jurists laid down the rule

that every state was free to
lay down
 its own rules of pn

17ᵗʰ 218ᵗʰ Century Development french 9German

This theory was not one single turists
uniform theory
Gration's doctrines of public international
law contributed to the formation ofthe
new dutch theory
But two things seem to be common
to all statutists
They all enamine individual
rule itself and consider the question
whether it is restricted in its
application to the state which
enacted if
They all try to evolve principles
which are meant to apply super
nationally superprovincially
super locally
2 International theory

Savigny System of Modern Roman law

he rejected the statute theory as well
as the territorial theory

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

Thus he said that the seat of a thing

was the place where it was situated
the seal of the legal relationship of the
cap city
of a person was the place where he
was domiciled

Criticisms International theory

of
C Assumption that there is uniformity in

the caves of the countries

Illustration In country A breach of
breakontract
is a tort In some it a
 marriage

3 Territorial Theory Theory ofAcquired

Rights
Courts country apply foreign law only
of a

to the extent to which theyare permitted

to do so the sovereign
by
Under private internationallaw courts do not
apply foreign law or enforce foreign
judgements but they merely recognise
and enforce the rights acquired under foreign
law

Criticisms
meaning of the term territorial law has
been misconceived
territorial law is not only confined to laws
of a sovereign state having operation within
its territory but they also include rules
of choice of law
The theory is futile if its supposed
object is to indicate what legal system
 gov gal

It is possible that under the rules of

choice of law of acountry it may
happen that a right which is unrecogni
red or repudiated by a foreign law
may be enforced by the court of the
forum

4 Local law Theory

It is an offset ofthe realist school of
jurisprudence

No court even enforces foreign rights as

such Under our system of the conflict of
lanes an American court when asked to
an alleged foreign tort
give damages for
committed on some otherstate will apply
the substantive law of the state in
question Although it is often said that
the substantive law of other state
case the word governs is
governs the
misleading an American court does not
hand over the case to the law of the foreign
5 Theory of Justice
This theory is one of English legislative
and judicial justice
sociological fair treatment
Premises
ethical
legal
English traditions
Judges oath
 Characterization
Classification a given factual situation
is a
of in decision
necessary step the of a

case having some foreign elements

The problem of characterisation

8 Husband I
Husband 2
a Husband 3
y amid
cartridges

IFmoveable

propertyin
India

If union is characterised as valid her husbands and

children get her property upon her death
If union is not recognised her brothers will get her
property upon her death
 2 goes to Uk
I married
Muslim womanof
man German
domiciled Domicile
in India

files am
alreadyhas to declare
a wife in uhhh
marriage as
India

11pmme
English
court

IfGerman English court recognises polygamous

marriage performed in India declaration is made

But German woman filed petition in Indian

if
court the court won't declare her marriage as
well and void b c polygamous unions are valid
under muslim law
 3 0 Enters into a 0
A contract in Paris A
Indian French
man

Contract to be
performed in
India
but there is no

comedian

commits breach
of
contract

0 marriage 0
4 A contract M
Indian
Frenchlady
domiciled in France

Later refuses to
perform themarriage

emoffatant IFrenchcourt
characterines characterizes
breach ofpromise it as a fort
marriage
a breach of contract
 Any court which assumes jurisdiction over a
case involving some foreign element has at the first
instance to determine whether a given factual situatio
gives rise to rights or imposes obligations or creates
a legal relation or an institution or an interest
in a thing The basic question is in reference to
which law the court is going to characterise the factual
situation so that it is able to reach a socially desirable
result

Well Recognised Ruler

i Questions
of capacity ten domicili
Ii Questions
of formality ten loci celebrations khakis
9 Questions
of immoveables ten situs

Theories Characterization
of
a Characterization should begoverned ten fori
by
b Characterization should bemade under ten causal
C Characterization should be done in two Primary
stages
Secondary
tencausal
d Characterization should be based on comparative law and
analytical jurisprudence
a Characterization should be governed
by ten fori
Bartin in this field it almost impossible to arrive at a
conclusion better decide all cases by Confort
Barton's two rules

i whenthere is a case with aforeign element the court

should determine it on the basis
of characterization made
in its internal law If there is no corresponding rule in
its internallaw it should be on basis ofthe closestanalogy

9 One