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NATURE AND SCOPE OF PRIVATE INTERNATIONAL LAW

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Conflict of laws or Private international law comes into operation whenever a
municipal court is
faced with a case involving a foreign element. It is only when this element is
present that
international law has a function to perform. Usually the cases that come for trail
before Indian
courts are those in which cause of action arises in India, whose parties are
Indians or domiciled in
India and the other elements of Which are also of domestic character. These are
occasions fat
Indian courts are also seized of cases having foreign elements. i.e., one or the
other elements of the
suits is connected with some foreign country for example an Indian tourist is
injured ina road
accident in London. It may be the place of business of one of the parties, for
example, an Indian
company agrees to purchase computer software from a company incorporated in New
york; or it
may be a foreign domicile, for example, an Indian women marries a man domiciled in
Iran.

Private international law is not a separate branch of law in the same sense as,
say, the law of
contract or of tort. It is all pervading.

“It starts up unexpectedly in any court in the midst of any process. It may be
sprung like a mine ina
plain common law action, in an administrative proceeding inequity, or in a divorce
case, or a
bankruptcy case, in a shipping case or a matter of criminal procedure. The most
trivial action of debt,
the most complex case of equitable claims, may be suddenly interrupted by the
zppearance of a
knot to be united only by Private International Law.”

Private International law though has an international aspect, is essentially a

branch of municipal law.
This is why every country has its own private international law. Private
international law though a
branch of municipal law, it doesn’t deal with any one branch of law, but is
concerned practically with

every branch of law and thus has a very wide ambit.

TKe need for private international law arises because different countries have
different systems of
law. Every country makes laws regarding property, succession, marriage, matrimonial
causes,
acoption, contract etc. Sometimes even within a country there may be different laws
applicable to
different places for example, laws of different states of the United States differ
from each other. If
there is no conflict between the laws of different countries, there would be no
need for Private
International Law. Since the laws of different countries differ, it becomes
necessary in every country
that there should be a branch of law which is given the name of Private
International Law or conflict

of laws.

Private International Law is always concerned with one or more of three questions,
namely:

(1) Jurisdiction of the court

(2) Recognition and enforcement of foreign judgements
(3) The choice of law.

Thus, the subject matter of Private International Law relates to every branch of
Private Law, but only
in connection with these three matters.

PUBLIC AND PRIVATE LAW:

—

It may be said that the conflict of laws is concerned much more with private than
the public law. It is
traditional that English books on the conflict 5f laws do not discuss topics as the
jurisdiction of
criminal courts to try crimes committed abroad, or the extradition of persons
accused of crime, or
mutual assistance between States in the conduct of criminal prosecutions, or the
immigration or
deportation of aliens.

PUBLIC LAW: % *
Public law is that part of law which is applicable to State in relation to its
subjects. The test of Public
law depends upon the nature of the parties to the relationship in question, if one
of the parties, i.e.,
the State, the relationship belongs to Public law. In modern times since the Stats
have drifted from
laissez-faire to welfare States, which have entered in trade and industry the scope
of public law has
greatly increased. In other words, all the acts done by the government officers in
furtherance of
their official duties are covered by the domain of Public law. Likewise the
criminal law, Constitutional!
law and administrative law are other forms of Public law.

PRIVATE LAW:

Private law is that part of the law which determines relationship between
individuals in their
ordinary private capacities. The law of contracts, the law of property, torts,
etc., are the examples of
Private law. The modern jurists like Kelson, Duguit do not recognise the difference
between public
and Private law. :

PUBLIC INTERNATIONAL LAW AND PRIVATE INTERNATIOANL LAW:

“Private International Law is a body of principles for determining questions of

jurisdiction, and
questions as to the selection of the appropriate law, in civil cases which present
themselves for
decision before the court of one State or country, but which involve ‘foreign
element’, i.e., which
affect foreign persons or fcreign things, or transactions that have been entered
into wholly or partly
in a foreign country, or with reference to some foreign system of law.”

“The objects of Private International Law are, first, to prescribe the conditions
under which the court
is competent to entertain a suit: secondly, to determine for each class of cases
the particular
territorial system of law by reference to which the rights of the parties must be
ascertained and
thirdly, to specify the circumstances in which :
(a) A foreign judgement can be recognised as decisive of the creditor by in a
dispute; and

{b) The right vested in the creditor by a foreign judgement can be enforced by
action in Englar d.”

According to Michael Akehurst, there appears to be little connection between Public

International
Law and the various municipal systems of Private International Law. Private
International Law is
different in each country; there is consequently no affinity between Private and
Public International
Law. Private International Law is essentially part of municipal law. Dicey calls it
as conflict of Laws
Since it deals with rules regulating cases in which municipal laws of different
States come into
Conflict. Such conflicts may arise in connections with domicile, marriage, divorce,
wills, validity of
Contracts, etc. It is also known as inter-municipal law, international comity, etc.
Only in exceptional
Circumstances do rules of conflict of laws become rules of International Law
proper, as for instance
When they are incorporated in international treaties.

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The permanent court of International justice observed in the Serbian Locus case,
that the rules of
Private International law inay be common to several States and may even be
established by
International conventions or customs, and in the latter case may possess the
character of tree
International law governing the relations between States. But apart from this it
has to be considered

that these rules from part of municipal law

According to Sir Robert Phillimore, rights arising under Public Inte:national law
are called absolute,
or rights statics juris, and their breach constitutes a casus belli and justifies
in the last resort a
recourse to war, whereas Private International law — the rules of which are founded
upon
conveniences, and intend te facilitate the intercourse between the subjects of
different States
confers no absolute rights.

Private International law is distinct branch of jurisprudence which has as its

major topic the body of
rules determining which territorial system of law controls Private law cases that
have roots in more
than one State, canton or province. Violations of Private International by a State
may also constitute
violations of Public International law if they are also breaches of treaties
agreeing to follow certain
practices in relation to the former. Public International law is a product not of
the relations of
private persons but of the relations of States to each other and to public
international organisations.

RANGE AND DIFFICULTY OF THE SUBJECT:

The interesting feature of the conflict of laws is that it is concerned with almost
every branch of
Private law. According to Baty, ‘there is a sweep and range in it which is almost
lyric in its
completeness. It is the fugal music of law’. The distinguished American judge
Cardozo J., said that it
is ‘one of the most baffing subjects of legal sciences’. And who also remarked that
‘the average
judge, when confronted by a problem in the conflict of laws, feels almost
completely lost, and, like a
drowning man, will grasp at a straw’. The subject is not only notoriously difficult
but also very
controversial judges differ, and so special do jurists. The result has sometimes
seemed unedifying
to those who look at the subject from the outside. “The realm of the conflict of
laws”, said by
Prosser an American writer that “is a dismal swamp filled with quaking quagmires,
and inhabited by
learned but eccentric professors who theorise about mysterious matters in a strange
and
incomprehensive jargon”.
“Although the conflict of laws is highl / controversial, the number of permutations
and combinations
arising out of any given set of facts is limited, and so is the number of possible
solutions. In any given
Case the choice of law depends ultimately on considerations of reason, convenience
and utility. In
the conflict of laws, to a greater extent than in most other subjects, there is
much to be learnt fram
the way in which similar problems have been solved in other countries with a
historical and cultural
back-ground and traditional similar to our own. Hence no apology is needed for the
occasional
citation of Scottish, American and common wealth cases, even ina students’ text
book.”

TECHNICAL TERMS:
Like any other legal subject, the conflict of laws has its technical terms or
jargon. The rules of the

conflict of laws are, traditionally, expressed in terms of juridical concepts or

categories and locating
elements or connecting factors.
In attempting to determine what law governs in the cases in which foreign elements
are involved,
the courts seek guidance from connecting factors, i.e., the factors which link an
event, a transaction
or a person to a country. |

Examples of such factors are:

Lexi loci contractus: the law of the place where the contract was made.

Lex loci solutions: the law of the place where the contract is to be performed.

Lex loci celebrations: the law af&the place where the marriage was celebrated. %
Lex loci delicti: the law of the place where the tort was committed.

Lexdomicilii: the law of the place where a person is domiciled.

Lexpatraie: the law of the nationality.

Lexsitus: the iaw of the place where the property is situated.

Lex loci actus: the law of the place where a legal act takes places.

Lexmonetae: the law of the country in whose currency a debt is expressed.

Lex loci disgrazine: the law of the place where a bill of exchange is dishounred.

The above terms are used in relation to Lexcausae. The lexcausae is a convenient
short hand

expression denoting the law which governs the question. It is used in contradiction
to the lexfori,
which always means the domestic law of the forum.

THE BASES OF CONFLICT OF LAWS:

Various reasons have been given from time to time to explain as to why municipal
courts apply
foreign law. Comity of nations was the earliest. Dutch jurist, John Voet, its
earliest protagonist, said
that one nation applies the law of another to show its regard towards it. It was at
one time supposed
that the doctrine of comity was a sufficient basis for the conflict of laws; and
even today references
to comity are sometimes found in English judgement (Travers V Holley 1953); and
Igra V Igra (1951).
\f, for example, first cousins domiciled in Portugal marry in England. Suppose that
such a marriage is
valid by English law but void by Portuguese !aw. The English court will hold this
marriage void, even if
the parties wished it to be valid. (This may be inferred from the court of Appeal
decision in
Sottomayor V De Barros (1877)). Clearly, this decision does not serve the interests
of the parties, but
it is based on comity partly to protect the interests of a foreign country and
partly in the expectation
that the favour will be returned.

The word ‘comity’ itself is incompatible with the judicial function, for comity is
a matter for
sovereigns, not for judges required to decide a case according to the rights of the
parties. Again, if
the word is given its normal meaning of courtesy it is scarcely consistent with the
readiness of

English courts to apply enemy laws in time of war. Moreover, if courtesy formed the
basis of the law
Private International law a judge might feel compelled to ignore the law of Utopia
on proof that
Utopian courts apply no law but their own, since comity implies a bilateral, not a
unilateral,
relationship. If, on the other hand, comity means that no foreign law is applicable
in England except
with the permission of the sovereign,.it is nothing more than a truism. The fact is
of course, that the

application of a foreign law implies no act of courtesy, no sacrifice of

sovereignty. It mearly derives
from a desire to do justice’.

Another basis for the application of foreign law that has been propounded is that
foreign law is
applied because it is necessary for the determination of the rights of parties.
Present laws of most
countries accept that municipal courts have jurisdiction to try suits having
foreign elements. Then it
follows that in such cases the courts should apply the relevant foreign law. Thus,
if an Indian court is
Called upon to adjudicate the rights of parties arising out of a contract entered
into in Singapore, the
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performance of which was to be made in Karachi, then for arriving at a complete and
just decision, it
is incumbent upon the Indian court tha: it should decide under the law of Singapore
or Pakistan

whichever is considered to be applicable.

Another important basis for the application of the foreign law is said to be demand
of justice. It
requires that the foreign law should be applied. The protagonists of this view say
that invariable
application of the lexfori would often lead to injustice. Suppose an Indian
marriage between two
members of the self respectors’ cult comes for consideration before an English
court and its validity
is challenged on the ground of lack of proper formalities of marriage. If English
law is applied the
marriage wili be void as among self-respector Hindus only ceremony of marriage that
is required is
exchange of garlands and rings between the bride and bridegroom. As per the demand
of justice the

English court should apply the Hindu law.

' The greatest difficulty that one faces in the application of this theory is as to
what is the meaning of

justice. According to graveson it is to a great extent a legal reflection of

ethical and moral values
conditioned by time, place and circumstances, much as the concept of reasonableness
in common

law is a reflection of contemporary social values.

Justice Chandrachud said that recognition is accorded “not as an act of courtesy

but an

consideration of justice”.

Whatever may be considered to be the basis of the application of foreign law, it is

now accepted
Principle that in a case having foreign elements, some appropriate foreign law is
applicable.

FUNCTIONS OF PRIVATE INTERNATIOANL LAW:

JURISDICTION:-
The law of procedure of every country lays down that in what matter which court
will have

jurisdiction. The procedural law also lays down rules for other matters of
procedure and'in some
systems of law these rules apply to all types of suits, to suits having foreign
elements. The Indian civil
Procedure code and the law of civil procedure of many other countries lays down
that the court shall

‘not proceed with the case unless the service of summons is made on the defendant.
This rule applies

to all defendants, including those who are living abroad. Looked at from this
aspect, the question of
jurisdiction is a fundamental question in all suits and legal actions. However, for
the following two
reasons it has specia! significance in Private International law.

First, in certain circumstances the court exercises jurisdiction in a case even

when the defendant is
absent. In a suit whose all elements are interval, the judgement rendered in the
absence of the
defendant. Such a judgement may also be enforceable when it has some foreign
elements so far as
the court that rendered the judgement is concerned. But, then, such a judgement may
not be

recognised elsewhere.
Secondly, these are certain matters in which the court cannot exercise jurisdiction
even though the
defendant is present, such as in a petition for dissolution of marriage or in a
suit relating to
immovable property situated abroad. The question of jurisdiction may arise before
the court in the

following two circumstances:

Prima aT
f 6)

(a) When a suit is *Sootor the court the question arises whether the court has
jurisdiction, or
(b) When the question before the court is of the recognition of a foreign judgement
or its
enforcement, the court may be called upon to determine whether the foreign court
that rendered
the judgement was a court of competent jurisdiction. Normallythe rules of
jurisdiction are based on
the principle that the court rendering judgement must be able to enforce it. Today
most of the
countries of the world.zre unanimous on the view that in respect of innovations the
court of that
place has jurisdiction where the property is situated. But in respect of movables
there is no such
unanimity. Similarly, in suits relating to personal matters tnere is no uniformity.

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENTS:-

The Private International Law has to determine circumstances in which and the basis
on which
foreign judgements are to be recognised. In some countries including India civil
procedure law lays
down detailed rule regarding the recognition and enforcement of foreign judgements.
Once the
court comes to the conclusion that the foreign judgement is a judjzement of
competent court, it
would not take into account the question whether the foreign law made a mistake on
matters of law
or facts. The question of the competency of the foreign court is determined by the
rules of Private
International Law. : .

CHOICE OF LAW:-

Once the court comes to the conclusion that it has jurisdiction, then in a conflict
of law case (case
having foreign element), the question that arises is: Under which law the suit
should be decided..??
Whether the law of the forum (inter¥al law) will apply or whether some foreign law
or foreign laws
will apply. This is known as the question of choice of law.

The action before a court, for instance, may concern a contract made or a tort
committed abroad or
the validity of a will made by a person who died domiciled abroad. In each case
that part of the
country’s law which consists of Private International Law directs what legal system
shally apply to
the case, i.e., to use a convenient expression, what system of interval law shall
constitute the
applicable law. For example, a wife files a petition for judicial separation in an
Indian court under
section 10 of Hindu Marriage Act on the ground of desertion. Both parties are
Indian domiciled
Hindus married in England, and while they went to New York the husband deserted her
there. The
Indian court has jurisdiction now the question is, which law should be applied: Law
of England, New
York or Indian..?? The question of choice of law is to be determined in all such
cases by Indian
Private !nternational Law. Private International Law merely informs as to which
systems of law,
foreign or domestic, will govern the matter. English Private International Law, for
instance, requires
that the movable property of a British subject who dies intestate domiciled in
Italy shall be
distributed according to Italian law. These rules for the choice of law, then,
indicate the particular
legal system by reference to which a.solution of the dispute must be reached. This
does not
necessarily mean that only one legal system is applicable, for different aspects of
a case may be
governed by diffictitt laws, as is the case with marriage where formal and
essential validity are
governed by different laws. The function of Private International Law is complete
when it has chosen
the appropriate system of law. Its rules do not furnish a direct solution of the
dispute. As said by
Cheshire this depart must of law resembles the inquiry office at a railway station,
where a passenger
May learn the platform at which his train starts.

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UNIFICATION OF PRIVATE INTERNATIONAL LAW: I
The need for Private International Law arises becaus® the interval laws of
different countries differ
from each other. The difference is not only in the internal laws of the different
countries, but also in
the Private International Laws of the different countries, on account of which
sometimes conflicting
decisions are pronounced by the courts of different on the same matter. Thus, the
need for the
unification of rules of Private International Law gises.
CIVIL AND COMMON LAW SYSTEMS:- .
There are two major systems of law, the common law and the civil law. These two
differ from each
other as to the rules of Private International Law. Germany, Switzerland and
Scandinavian countries
restrict the scope of Private International Law to problems of conflict of laws and
matters relating to
status of foreigners fall under a separation te branch called the law of
foreigners. Private
International Law of Soviet Union and of the People’s Democracies of Eastern Europe
include within
its abmit the rules of choice of law along with all the connecting factors such as
nationality or
domicile, the place where the contract was entered into or is to be performed.
However, the rules
relating to resolving of conflicts of jurisdiction are not included within the
rules of Private
International Law. They are considered to rejate to procedural law. The countries
of the common
law systems include the rules of jurisdiction as well as the rules of choice of law
within the scope of
Private International Law.

There are two.modes for the unification of Private International Law:-

(a) Unification of the interval laws of the countries of the world.
(b) Unification of the rules of Private International Law.

UNIFICATION OF INTERNAL LAW:-

The first step in the direction of the unification of internal laws was taken by
the Bern Convention of
1886. Since amended several times under which an International union for the
protection of the
rights of authors over their literary and artistic works was formed. Another
important example of
unification is the Warsaw Convention of 1929 as amended at The Hague, 1995, and
supplemented
by the Guadalajara Convention, 1961, which makes the international carriage of
persons or goods by
aircraft for reward subject to uniform rules as regards both jurisdiction and the
law to be applied. It
also provides that any agreement by the parties purporting to alter the rules on
these matters shall
be null and void. ,

The council of the League of Nations entrusted to the Institute for the Unification
of Private Laws-
UNIDROIT, established by the Italian government in Rome. An important result its
labours, in
conjunction with those of the Hague Conference, was the conclusion at the Hague in
1964 of a

_convention which establishes a uniform set of rules on international sales of

goods and also on the
formation of contracts for such sales. There is now a successor to the 1964
Convention, the United
Nations Convention on contracts for the International sale of goods (1980),
prepared under the
auspices of another body concerned with the unification of law, the United Nations
Committee on
International Trade Law- UNCITRAL.

UNIFICATION OF PRIVATE INTERNATIONAL LAW:-

Because of basic ideological differences among the countries of the world, it is
not possible to
achieve unification of all private laws. Therefore, another method of avoiding the
situation where
courts in different countries may arrive different results on the same matter is
the unification of the
rules of the Private International Law. Considering the importance of the
unification of rules of
Private International Law, several serious international efforts have been made in
this direction.
Attempts have been made in the Hague Conference on Private International Law to
reduce the
number of topics on which the rules for choice of law in different
countriegconflict, thus indicating
the common to the civilised world.

A step of great significance taken in 1951 was the drafting of a character designed
to place The
Hague Conference on a lasting footing by the established of a permanent bureau.
This character has
been accepted by many countries, including the United Kingdom, and the Bureau,
consisting of a
Secretary General and two Assistants Secretaries belonging to different countries,
was established at
The Hague. It’s chief functions are to examine and prepare proposals for the
unification of Private
International Law and to keep in touch with the council of Europe and with
governmental and non-
governmental organisations, such as the common wealth and the International Law
Association. The
Bureau works under the general direction of the standing government commission of
the
Netherlands, with the object of promoting the codification of Private International
Law. Active
consideration is now being given in the Hague conference to the preparation of a
world-wide
convention on jurisdiction and the recognition and enforcement of judgements.

In addition to the conventions mentioned above, many similar arrangements have been
made
between individual countries, as for example the bilateral conventions on civil
procedure concluded
by the United Kingdom with a large number of foreign States. An example of a
limited multilateral _
convention is that concluded in 1969 between the Benelux states- Belgium, the
Netherlands and
Luxemburg- which unified the rules of Private International Law on the more
important matters,
such as capacity and states, succession to property on death and the essential
validity of contracts.
International efforts in this regard have achieved only limited success.

INDIAN PRIVATE INTERNATIONAL LAW:-

Indian Private International Law is yet in its formative stage. Most of the rules
of Indian Private
International Law have been borrowed from, or are based on, English Private
International Law.

P ~abably, before the independence of India nothing else was possible. But, now
Indian courts have
an opportunity to develop own rules of Indian Private International Law.

It is well known that much before the advent of Mugna! rule in India, particularly
during the Gupta
and MauryianEmpires, India had a flourishing trade and commerce with countries far
and beyond,
across the high seas and through the inland routes. It seems to be evident that
many suits pertaining
to contracts and transactions relating to trade, commerce and other matters must
have come before
Indian courts. The Indian courts did not decide the matters entirely by reference
to Indian law. India
has a fairly developed law and custom of merchants and the suits were decided
thereunder. It is alsO
evident that during the Gupta and Mauryian Empires, law in India was territorial,
though usage and
Custom too had their place, sometimes supplementing law, sometimes over riding it.

V vith the establishment of the Mughal Empire in India on many matters rules of
Muslim law came to

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applicable. However, in most matters, if both the parties were Hindu, Hindu law was
applied if both
the parties were Muslim, Muslim law was applied. In person.l matters in the entire
area of the
family law, it was the personal law of the parties that was applied. Hindus were
governed by their
own Muslim personal law. Thus emerged the era of personal laws in India.

During the British period, from its beginging to its end various communities in
India were governed
by their personal law in personal matters. Thus though there was a possibility of
conflict in personal
laws but such occasion of conflict was very rare. This was so because a Hindu could
not marry a Non- .
Hindu under the Hindu law. In other words inter community relations were not
possible. Such inter
community or inter religious marriages could be performed in civil marriage from
under a separate
form under a separate statute, the Special Marriage Act, 1872-1928. Inter State and
inter religious
marriages were made possible under the Act by an amendment of 1923, this statute
has now been
repealed and replaced by the Special Marriage Act, 1954 under which on the
satisfaction of certain
requirements as to capacity ‘any person’ can perform a marriage. Once a marriage
was performed
under the Special Marriage Act, parties cease to be governed in most of the matters
by the laws of
their respective community. In all matrimonial matters, including matrimonial
causes, they were
governed by the Special Marriage Act, 1954 and succession to their property was
regulated by the
Indian successicn Act, 1925. Thus in most potential areas of conflict of communal
laws, the conflicts
were avoided. This continues to be the situation even now. In the personal matters
laws in India is
not territorial but personal. , :

During the British period, India developed contacts not merely with the countries
of the British
Empire but also with other countries. The result was cases with the foreign
elements did come for
adjudication before the Indian courts. Just as in other matters, so in the cases
having foreign
elements, the Indian courts decided mostly by applying rules propounded in English
decisions. Thus
basically the rules of Indian private international law are based on the rules of
English private
international law. Now Indian courts are in a position to develop the rules of
Private International
law in accordance with the social needs and circumstances of contemporary society
and in
accordance with the ideas and notions of justice. But still the Indian courts are
following the rules of
English private international law.

In avery wide and broad sense Indian law means all rules of law which Indian courts
apply when
they adjudicate upon a case, aid in this sense it also includes rules of private
international law, under
which the courts determine the questions of jurisdiction and choice of law. In a
narrow sense, Indian
law means al such rules excluding the rules of private international law.
Sections 9 to 35-A and 44-A of Indian civil procedure code, 1908 deal with the
aspects of jurisdiction.
In general, section 13 of the code deals with recognition and enforcement of
foreign judgement in
Particular. Indian courts have adopted and following the English rules/principles
relating to choice of
law in torts, contracts, marriage, status etc.

It has already been said that certain international efforts have been made to bring
uniform rules of
Private international law with little success. Even the conventions that have been
entered into by
Parties/states can be recognised or incorporated in the municipal law as private
international law,
though has an international aspect, is essentially a branch of municipal law. Thus,
it can be
LY

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concluded that the international conventions to become part of municipal law,

specific adoption is
required.

TITLE:-

According to Cheshire the expression “Private International Law”, coined by story

in 1834, was
adopted by the earlier English authors, such as West take and Footg, and is used in
most civil law
countries. The chief criticism directed against its is its tendency to confuse
private international law
with the law of nations or public international law, as it is usually called.

An equally common title to describe the subject, and one used in the USA is “The
Conflicts of Laws”.
This title is also misleading if it is used to suggest that two systems of law are
struggling to govern a
case. In fact, the very purpose of private international law is to-avoid conflicts
of law.

The fact is that no title can be found that is accurate and comprehensive, and the
two titles “Private
International Law” and “The Conflict Of Laws” are so well known to, and understood
by, lawyers that
no possible harm can ensure from the adoption of either of them. The title,
“Private International
Law” is most widely used throughout the world and in Cheshire’s view the title
“Conflicts of Laws” is
preferable.

Both the above titles are subject to criticism and a few more titles have been
suggested but these
have been so much criticised as cannot be accepted as a title for the subject. They
are:
(a)“International Private Law”,

(b)“International Municipal law”,

(c)”Comity”,

(d)” The Extra territorial Recognition of Rights”.

In spite of.a number of criticism, only the titles “Private International Law”, and
“The Conflicts of
Laws” have been considered suitable for the subject.

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In a conflict case much depends on how the issue is classified or characterized. Is
it an
issue Of breach Of contract or the commission ofa tort? This may be labelled as
classification
of cause of action. Once this has been determined, the next stage is Lo ascertaia
the governing
law which, depends on some connecting factors, such as lex situs, the lex loci
delicti, and so

forth.

At this stage. a second type of classification has to be done in order to: identify
the
legal characteristic of a particular rule. Problems may arise as to whether a
particular rule is
to be classified as a rule of substance or procedure. This type of classification
may be labelled

as classification of a rule of law.

“A. Classification of the Cause of action

Every legal system arranges its rules under different categories which must form
the
basis of a plaintiff's claim. These categories may be concerned with tort,
contract, property,
status, succession, efc. Before the forum can proceed to ascertain the /ex causae,
it has to
determine the particular category into which the action falls. Does the action
relate to the

formal validity of a marriage, intestate succession to movables, or some other

category?

An action may fail under more than one category, for example, an employee may be
able to sue his employer either in contract or tort; or the action may not fall
under any of
them. such as the duty of a father to provide a dowry for his daughter under Greek
law

| Phrantzges v Argentina (1 960)|.

The crucial question therefore is how does the forum classify the cause of action?
Is
the classification made according to a country’s internal Jaw? It is obvious that
this
classification process is very crucial to the outcome of cases: however English
case-law does

not show how this process is or should be conducted,

According to Cheshire and North, Private International Law:
“there can be little doubt that classification of the cause of action is in
practice
effected on the basis of the law of the forum. But since the classification is
required for a case
containing a foreign element, it should not necessarily be identical with that
which would be -

appropriate in a purely domestic case”.

(2) -4®

It follows. therefore, that the judge must not rigidly confine himself to the
concepts o

categories of a particular country’s internal law. '

B. Classification of a Rule of law

Onee the legal category of a given case has been identified. the next stage fs lo
apply
the relevant choice of law rules in order to identify the /ex causae. However. even
at this
Stage it may be necessary to classify a particular rule in order to determine
whether it falls
within one choice of law rule or another. This process can be better illustrated by
examining
the choice of law rules. For instance, capacity to marry is governed by the law of
each party's
ante-nuptial domicile, and the format validity of a marriage is governed by the law
of the
place where the marriage was celebrated. A problem of characterization will arise
if it is
doubtful whether a rule of the domicile of one party is the rule of capacity in
which case It

will apply, or whether it is a rule of formality in which case it will not apply.

In other words. once the main legal category has been determined, the next step is
to
apply the correct choice of Jaw rule in order that the governing law may be
ascertained. The
correct rule will depend on some connecting factor, such as domicile, or the
situation of
iimmovables, which links the question to a definite legal system. X, for instance,
dies intestate
domiciled in France, leaving movables in England. Since he has been connected by
domicile
with France, the operative rule for the choice of law is. therefore, that the
question of intestate
succession must be governed by French law. However, at this stage the second
process of
classification has to be gone through. It may be necessary to identify the legai
category into
which some particular rule falls, in order to discover whether it falls within a
particular
category with regard to which the law selected by choice of law rules is paramount.
That law
has a certain sphere of control, Ze, it governs some but not all aspects of the
juridical
question as classified by the court. For instance, in an action brought in England
for breach of
a contract made and performed in France, French law governs matters of formal and
essential
validity, but all questions of procedure are subject to English law. A French
procedural rule is
outside the sphere of control of the chosen French law relating to matters of
substance. its
true nature must obviously be determined. It must be ignored if it | procedural in
character,
otherwise it must be applied. Likewise, an English domestic rule is expected if it
relates to

form or substance, but is applicable if it is procedural in nature.

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It must be clearly understood that in cases containing a foreign element. although

the

Procedural Rules: /ex fori governus: Ogden v Ogden (1908)

relevant foreign law is selected and applied, it does not mean that all questions
arising for
decision are exclusively determined by the /ex canusae. On the trial of a vase
containing a
foreign element, there are certain areas where the /ex causae is paramount. There
may be
other areas where the /ex causae has no application. For example, in all matters
relating to

procedure. it is the Jey fori that governs: the lex causae is inapplicable.

A procedural rule of the foreign law will not be recognized by the English Court,
if-it
is at variance with the English rule. It means that a procedural rule is outside
the contro! of
lex causae. Consequently, it is very important to determine whether a particular
rule is a rute
of procedural law or, a rule of substantive law. Here the judge has to make a
classification
and determine whether the rule in question belongs to procedural law or substantive
law.

Sometimes there may be conflict between the /ex fori and the /ex causae on this
question of

. Classification; lex fori may classify the rule as procedural, whereas, .the /ex
causae may

classify it as substantive. The further question naturally arises as to which

classification must

be adopted by judge.

This kind of problem is illustrated by the controversial case of Ogden v Ogden.

Facts of the case: A 19 year old man domiciled in France, married a woman domiciled
in

England without obtaining parental consent as required by Art. 148 of the French
Code

(Below 25 years, a son cannot contract a marriage without the consent of his father
or mother

~ Art. 148).

After some time, the husband obtained a decree of annulment of marriage from a
French Co:rt holding the marriage void for the violation of Art. 148. Subsequently.
the
won cn married an Englishman in England. This English man after some time
instituted the
present action in an English Court praying for a decree of nullity of his marriage
on the
ground that at the time of marriage, the woman was married to the French man. The
question
raised was the validity of the marriage with the French man in violation of the
requirement of

parental consent.

The court classified the rule of parental consent as one relating to formality or
procedure. As the marriage took place in England, the formal validity is governed
by English

law and French procedural rules are inapplicable. Hence the court ignored the
French rule of
cu@)

parental consent and held the marriage with the French man valid with the result
that the

subsequent marriage with the English man was void. This classification of the
French rule of

parental consent as a matter relating to ceremony rather than substance, has been
subject to

severe criticism. It has been pointed out that the rule of parental consent Is one
which affects

the capacity of the husband to enter into the marriage relationship and therefore
is a matter

relating to substantial validity.

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3. Incidental Questions Che . 5-1)

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A case involving private international law may place a subsidiary issue. as well as
a

main question, before the court. Once the relevant choice of law rule has been
applied and
law to govern the main issue is thereby determined. a further choice of law rule
may be

required to answer the subsidiary question affecting the main issue.

Sometimes categorization also raises the so-called incidental question, which is

also
called a preliminary question and it arises because the main problem may not, even
if
resolved, answer the question to be determined by the court. This problem may be
explained

as follows.

If the main problem relates to succession, the issue will be resolved by resorting
o the
rule settled in (English and/Indian) a country’s conflict of laws, that succession
to immovable
property will be decided by applying the /ex situs and lex domicilii, respectively.
But this

answer may not resolve the issue before the court.

If, for example, under either the /ex situs or the lex domicilii, a wife is the
person to
inherit. a question may arise whether a particular person was, in law, the wife of
the
deceased, which may ‘aise the incidental question of the validity of the marriage
of that:
person. Other instances are: whether that marriage was bigamous or potentially
bSigamous,
and, therefore, invalid (as was the law in England in the past); is a particular
person the

legitimate child of the deceased ere.

These are incidental questions in as much as they arise after the court has
determined
the Jex causae as far as the principal issue of succession is concerned. Moreover,
these
questions might involve the application of different rules of law depending, for
example, on.
when, and where, the parties married, or the child was born. The rule of law to
determine the
so-called incidental question may not.be the same as the rule of law to determine
the law
applicable to the question of succession to the property of the deceased. Whilst
the /ex causae
to determine the rule of succession would be the /es situs or lex domicilii of the
propositus,
whether *X’ was the wife of the deceased may depend upon the law of the place where
the

marriage was celebrated.

The problem seems to have arisen principally in cases where the question whether a

second marriage was or was not, valid.

chy 3-(2D

In several decisions where the question has arisen, the courts have applied to the
incidental question the same law which was applicable to the principal question. at
times
(

without dealing consciously with the question as a separate question. In brief, it

may be said

that the following are the elements of an incidental question.

An incidental question properly so-called presumes the existence of three facts.

The
main issue should under the (English) rules of private international law, be
governed by a
foreign law. There should be a subsidiary question involving a foreign element
which could
have arisen separately and which has its own independent choice of law rule. This
choice of
law rue should lead to a conclusion different from that which would have been
reached had

the law governing the main question been applied. Without these pre-requisites
there is no
“incidental question”.

The way in which the incidental question arises may be illustrated by the decisions

Lawrence v Lawrence, [1985] Fam 106 (English decision) and Schwebel v Ungar, (1963)
42
DLR (2d) 622 (Canadian decision).

Lawrence v Lawrence

Facts:

The first husband and his wife married in Brazil and lived there until 1970. In
that
year the wife obtained a divorce in Nevada, USA, which was not recognized in
Brazil; but the

next day she married the second husband in Nevada. Later, the second husband
petitioned for

a declaration as to the validity of this second marriage.

An incidental! question arose from the fact that. under Brazilian law, being that
of the
wife’s domicile to which English choice of law rules referred capacity to marry,
she lacked
capacity to marry the second husband. On the other hand, the Nevada divorce was
recognized

in England under English divorce reccgnition rules (Recognition of Divorces and

Legal .
Separations Act 1971; now Family Law Act 1986, Part II).

The Court of Appeal by a variety of reasoning, upheld the validity of the second
marriage. The effect of this was to give primacy to the divorce recognition issue
at the

expense of that of capacity to marry.

Schwebel v Ungar
|
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= This decision provides a converse example of the incidental question, where the |
~esS capacity rule prevailed over that of divorce/recognition. t
i
Cs Facts:
a) A Jewish husband and wife, domiciled in Hungary, decided to settle in Israel.
When
Cy they were in Italy, en route to Israel, the husband divorced his wife by “get”.
Under
CC ; Hungarian law. the law of their domicile, and under Italian law this divorce
was invalid. but it
a ~ was effective according to Israeli law. They then acquired an Israeli domicile
and whilst so
aa ~3S domiciled the wife later visited Ontario and married second husband who
ultimately
eel ~ petitioned the Ontario Court for a decree of nullity on the ground of his
“wife’s” bigamy.
e 3 The Canadian Court had not only to consider the question of the wife’ capacity
to
C _ marry, governed under Ontario choice of rules by Israeli law, but also the
question of the
a » validity of the wife’s divorce by “get”. Under the Ontario rules of private
international law,
2 the divorce would not be recognized but it would under the Israeli rules. The
Supreme Court
y=) of Canada upheld the validity of the second marriage. It was.valid by the law
of Israel, the- .

“ 3 law governing the capacity to marty, and this prevailed over the Ontario rule
denying
a. recognition to the divorce. Here, capacity was.regarded as the main question, to
which
a > divorce recognition was incidental.
A S
eae s Depecage
SS = 3 A- problem related to that of the incidental question is that of “Picking
and Choosing”
ma 4 or depecage. A case involving foreign elements may give rise to issues which
involve
aL , 5 different choice of law rules.
~ 5 To take the simplest example, if a husband and wife, both domiciled in England,
an marry in France, then any dispute as to validity of their marriage may have to
be referred to
Ass English or French law. In fact, if the dispute is as to the formai validity of
the marriage,
™ i? reference will be made io French law as the law of the place of celebration,
and if the issue is
oo [> one of capacity, it will be determined according to the English law as the
ante-nuptial
aL» domiciliary law of the parties.

2
Le Here it is clear that the one general issue of the validity of marriage has to
be analysed
i) into two separate sub-issues. A similar example is provided in the law of the
contract where
We the parties are free to choose different laws to govern different parts of their
contract. .

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In other cases the question whether there are t'vo issues referable to different
laws o1

but one single issue is less easy to determine. °

Although a failure to distinguish separate issues may produce an unjust and

distorted
result, it might also be said that the decision to pick and chocse may be motivated
by a@ desire

to avoid the application of a rule that is regarded as undesirable.

The mist commonly cited example relates to interspousal immunity in tort. If a

husband and wife, both domiciled in a foreign country, are involved in a motor
accident in
England in which the husband negligently injures the wife. this would be classified
as a tort
problem to which the appropriate choice of law rules would be applied, pointing as
a general
rule towards the application of English law, though with the possibility of this
being
displaced in favour of the law of another country. Let us assume, however, that
although an
action will lie between husband and wife under English law, it will not so lie
under the law of ~
their domicile. Is it to be said that the question of interspousal immunity arising
na tort claim
is a tort issue or to adopt a more subtle categorization and suggest that the
interspousal
immunity issue is a matter of status to be segregated from the tort context in
which it arose
and be referred to the law of the domicile? (Warren v Warren [1972] Qd R 386). The
latter is
the better approach (Cheshire).

The problem cah become more complex, as where the law of domicile would permit
the spouse to sue but, but its substantive tort rules would deny the wife recovery,
for
example, because she was guilty of contributory negligence, whilst under the law
governing
liability in tort a wife cannot sue her husband, apart from that, she has a good
claim in tort. If

one picks and chooses, then the law governing the crt issue may only be applied to
the tort

issues of the wife’s claim, whilst the law of the domicile is applied to the
questions of

interspousal immunity. The result is that the wife can recover by picking and
choosing

different laws to govern different issues, though had any one law been applied to
all issues,
she would have failed.

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Application of the /ex causae: The Problem of Renvoi

When an English Court refers an issue to a foreign law, it nearly always refers to
the
domestic rules of that law. In some instances, however, the court treats this
reference to the

foreign law as a reference to the conflict rules of that law. This is called
renvoi.

For example, in Re Ross (1930), the testatrix, a British national, died domiciled
in
Italy. She left movable property in England and movable and immovable property in
Italy.
ler wilis in relation to her English and Italian estates were valid by English
domestic law of
succession, but invalid by Italian domestic law because she had not left half of
the estates to

her son who contested the wills.

Under English conflict of laws, the essential validity of the wills was governed by
Italian law as law of the domicile of the testatrix (in relation to the movables),
and the /ex
situs (in relation to the immovables). Under Italian conflict of laws, this issue
was governed
by the domestic law of the nationality of the testatrix. As a result, the English
Court applied

English domestic law and the wil!s were held to be valid.

IWence, the issue of renvoi arises when a rule of conflict of laws refers to the
law of a
foreign country, but the conflict of the foreign country would have referred the
question to

the law of the first country (i.e., remission), or the law of some other country
(/e.,

transmission).
(a) Single or Partial Renvoi

Under single or partial renvoi, the English Court accepts the reference back from
the
country referred to by the English choice of law rule. For instance, if an English
Court is
referred by its own choice of law rules to the law of the country “X”, but the
choice of law
rules of “X” refers such case back to the English law, then the English Court must
apply its
own domestic law to the case. This form has been adopted in some continental
countries, but
it is not part of English law.
Forgo’s case (French Decision)

Forgo, a Bavarian national domiciled in France died intestate in France leaving,

movable properties there. The French Court had to decide how the movable properties
were
to be distributed. According to French Private International Law, the law to be
applied was

the ley patriae. ie.. law of nationality, namely the Bavarian law.
Bavarian law in what sense?

Bavarian law was taken in the wide sense of the whole law of Bavaria including

Bavarian Private International Law.

(Forgo was illegitimate and under French law, collaterals would not succeed to his
movable properties and so the properties would pass on to the French government;
but under

Bavarian law, collaterals could succeed to the properties).

According to Bavarian Private International Law, succession to movables was

governed by /ex domicilii. So the Bavarian law referred the question back to the
French law.
This reference was accented by the French Court and the French law of succession
was

applied, thus depriving the right of succession to Forgo’s collateral relatives.

(b) Double Renvoi

This is also known by the names of “Total renvoi” or English doctrine of reavoi or
the
Foreign Court theory. Under this double or total renvoi, the English Court which is
referred
by its conflict rules to the foreign country, must apply the law which a court in
that foreign
country would apply if it were hearing the case. More precisely it can be put that
an English
judge who is referred by his own law to a foreign system of law, should apply
whatever law a
court in that foreign country would have applied if that court were seized of the
matter. The
English judge is required to make an imaginary journey to the foreign land and sit
in the court

of that country.
The operation of this form of renvoi is illustrated in Re Annesley

~ Facts: The case was concerned with the validity of a will executed by a woman
named
Arnesley. Annesley was a British subject domiciled in France at the time of her
death. The

will she executed was valid by English law but failed to satisfy the requirements
of French

law.

Which law should be applied in deciding whether the will was valid or not?
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The English Court held that French law should be applied. The judge reached that
conclusion by applying foreign court theory. English Private International Law
refers! the

question of validity of wills to the law of domicile, namely French law.

How would a French judge decide the question?

He would find that according to the French law he has to apply the nationality,
that is,
English law. In other words, the French judge would find that he is referred to the
English

law and the English law refers the matter back to the French law.
Foreign Court theory: Criticisms

This theory has enthusiastic supporters and detractors in England. Dicey strongly
supported this doctrine. But Cheshire has voiced strong objections to it. In
Cheshire’s view,

this theory is “objectionable in principle, is based upon unconvincing authority

and cannot be

said to represent the general rule of English law”,

So far as English decisions are concerned there are decisions which expressly
approve
the theory but according to Cheshire, these decisions are exceptions and can be
confined to
certain areas. Cheshire maintains that as a rule when an English Court is referred
by English
Private International Law to a foreign system of law. the court simply applies the
internal law

of that legal system without bothering about its rules of Private International
Law.
Drawbacks of the Foreign Court theory
Cheshire points out the following objections to this theory:

(a) Foreign court theory does not necessarily assure uniform results. Uniform
result will
be produced only if the theory is accepted by one country and rejected by the
other. If
recognized by both, there will be an interminable reference forth and back, what

Cheshire calls “International game of lawn tennis”.

(b) Foreign court theory amounts to the complete surrender of the English choice of
law
rule. The effect of this theory is to substitute a foreign choice of law rule in
preference
to the English rule. The English rule is discarded since it does not meet with the

approval of the foreign law maker.

(ce) The foreign court doctrine is difficult to apply. This theory requires the
English judge

to ascertain what precisely will be done by the foreign judge. This creates two
serious
difficulties - one is to ascertain whether partial renvoi is accepted or repudiated
by the
foreign law. This is not an easy thing to do as it may be a controversial question
and
the authorities and experts may not agree as to what actually is the position. The
second difficulty is to ascertain the national law of the propositus when the
foreign
law refers the question to the national law. In countries like England and America.

where there are several territorial systems of Jaw within the same country. it is

meaningless to speak of national law.

Scope of this Theory

Renvoi applies to questions of intestate succession and essential validity of

wills.
There is some authority to the effect that it applies to ‘marriage’ and that it
should apply to
cases involving title to immovable property. Renvoi does not, however, find a place
in the

fields of contract or tort.

In spite of the difficulties and inconsistencies involved in the application of the

theory
of double renvoi, this doctrine was reiterated by the Privy Council in the case of
Kotia v.

Nahas ({1941] 3.All E.R. 20) and also in the case of Re Full’s Estate (No. 3)
([1986] P 275.
[1965] 3 All E.R. 776). :

Renvoi and Indian Law

Though there is no discussion of the theoretical basis of the decision, the Supreme
Court had clearly held the renvoi rule has no application in the field of contracts
(National

Thermal Power Corporation v. Singer Co., AIR 1993 SC 998).

The Supreme Court in Viswanathan (R) v. Rukun-ul-Mulk Syed Abdul Wajid (AIR
1963 SC 1) observed that every issue relating to immovable property is to be dealt
with by
the courts of the country where the property is situate, have the effect of ruling
out the

application of renvoi in such cases.

S. Govindam v. Bharti (AIR 1964 Ker 244)

acts: 4 an Indian went to England and stayed for the period of 30 vears. He had
both
movable and immovable property situated in India as well as in England. He did not
obtain
the domicile of England so Indian domicile was still applicable. The property
situated in

England was sold after his death and the usufruct was deposited for the heirs in
Indian Court.
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In India. the property amongst heirs is to be administered according to the

personal

laws of the deceased. Both movable and immovable properties situated in India were

distributed according to internal law.

Indian courts accepted the doctrine of renvoi regarding the immovable property

situated in England and administered amongst heirs according to /ex situs, that is,
English
law.
SS J

Substance and Procedure

Rares)

One of the eternal truths of every system of private international law is that a
distinction must be

made between substance and procedure, between right and remedy.

bert, ; ; ;
The substan¢f rights of the parties to an action may be governed by a foreign law,
but all matters
pertaining to procedure are governed exclusively by the iaw of the forum. (British
Linen Co v.

Drummond (1830), De la Vega v. Vianna(1830) ) .

, In a matter not raising issues of conflict of laws, Lush LJ explains in Poyser v.

Minors the

meaning of procedure “the mode of proceeding by which a legal right is enforced, as

distinguished from the law which gives er defines the right and which, by means of
the

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proceeding the Court is to administer the machinery as distinguished from the

product.”
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The field of procedure constitutes perhaps the most technical part of any legal
system, and it
comprises many rules that would be unintelligible to a foreign judge and certainly
unworkable by
machinery designed on different lines. A party to litigation in England must take
the law of
procedure as he finds it. He cannot by virtue of some rule in his own country enjoy
greater
advantages than other parties here ; neither must he be deprived of any advantages
that English
law may confer upon a litigant is the particular form of action (De la Vega v
Vianna 1830).

Importance of distinction between substance and procedure

We

Although the principle is certain and universal, its application can give rise to
considerateZ,
difficulty, especially when trying to establish a test by which procedural rule can
be
distinguished from a substantive one. Unless the distinction is made with clear
regard to the
underlying purpose of private international law, the inevitable result will be to
defeat that
Purpose. So intimate is the connection between substance and procedure that to
treat an English
rule4 as procedural may defeat the policy which demands the application of a
foreign substantive
law. A glaring example to this is afforded by sectign 4 “ft statute of Frauds,
which formerly
Provided that no action should be brought on certainzunless there were evidenced by
a note or
ned by the party to be charged or by his lawfully authorized agent.

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a a en oa

it was held thai the provisions of the statute are procedural and, therefore,
applicable to contracts
8Overned bydforeign law. The case concerned an oral contract of employment,
concluded in
France between an English employer and a French employee, whose employment was to
be in
France. This oral contract was formally valid by French law. When the employee sued
to enforce
the contract in the English court, the employer relied on section 4 of the statute
of Frauds, under

Which, because the employment was to last more than a year, “no action shall be
brought upon

any agreement...... unless the agreement...or some memorandum or note thereof,

shall be in
Writing, and signed by the party to be charged therewith”.
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e If this statutory provision had been regarded as a rule of formal validity, it

would not
have been applicable because the formal validity of the contract was governed by
French
law.

Although this decision might, possibly, be based on an intelligible principle of

domestic law,
it is repugnant to the principles on which English private international law is
founded. That
law exists to fulfil foreign rights, not to destroy them. Willes J attacked the
decision in two
later cases C Williams v. Wheeler 1860, Gibson v. Holland 1865, and evidently
thougnt that
in the circumstances the statutory rule should not have been treated as procedural.

io

BR
The Court of Bidtédate took a somewhat different approach in Monterosso Shipping
Co.
Ltd. y. International Transport Workers’ Federation. Lord Denning MR observed that:

“ It seems to me that the true distinction is between the existence of a contract

(which is
substantive law) and the remedies for the breach of it (which is procedural law).
The right
course is to analyse the statute and see whether it negates the existence of a
contract or not. If
there is no contract, but the statute says it cannot be enforced (except in writing
or within a
stipulated period), that is procedural law. It is governed by lex fori. It should
be borne in
mind that the issue whether a rule is one of substance or procedure may. arise in
more than
one context. The most common context, as illustrated by Leroux v. Brown, is the
determination of the nature of a rule of English law in circumstances where the
governing
law is foreign. If the English rule is procedural, it is arplied nothwithsianding
the foreign
governing law. If the English rule is substantive, it is ignored and the foreign
law applied.
The problems can, however, arise in circumstances where, although the applicable
law is
foreign, there is some doubt as to whether the rules of that country’s law are
procedural (and

to be ignored in England) or substantive (and to be applied in England) (eg.

Harding v.
Wealands (2007] 2 AC 1).

Chase Manhattan BANK NA y. Israel- British Bank (London) Ltd (1981) Ch 105
The plaintiff, a New York bank, sought to trace and recover in equity 2 Million
pounds, paid by
" mistake te the account of the defendant bank. The issue was whether the plaintiff
bank was
entitled to trace the proceeds. Although the court held that there was no
significant difference
between the two relevant laws, English and New York Law, on the to trace, Goulding
Jj asked the
question- “ Whether the equitable right of a person who pays money by mistake to
trace and
Claim such money under the law of New York is conferred by substantive law o1 is of
a merely
procedural character. He concluded that the view of an English Court. Would be that
the New

York Bank had, under the New York law, an equitable interest as a Cestue Que trust
which was
substantive in nature.

e Why did the judge ask the question as to the nature of the equitable right to
trace?
Presumably, because if he haud found the New York rule to be procedural, he would
have been unwilling to apply it is England.

Nm ee PB MR PLR OPV PQ

~~ —_— ~ Lay tn
Tolofson v. Jense (cananda) and Lucas y. Gagon

The supreme Court held that when a court is considering a foreign law, it should be
regarded
as procedural when it was clear beyond doubt that it was procedural and if there
exist any

doubt it should be considered as substantive.

The older approach of England to give a wide interpretation to the term procedural
is not
followed now. The law is England today has been altered by the statute to a
considerable
extent, the Contracts (Applicable Laws) Act, 1990, which gave effect in England to
Rome
Convention of the Law Applicable to the Contractual obligations 1980, provides that
not
only the interpretation of a contract, but the assessment of damages for its
breach, and the
applicable presumption would be governed by lex causae. Foreign Limitation Period
Act1984, under which generally, unless contrary to public policy, the Ilimitation
rule of lex

causae will be followed.

Particular Issue

Generally under English law all the routine matters arising in the successive
stages of
litigation must be governed as being the law of forum, for e.g. service of process,
ccmpetency of witness, questions as to admissibility of evidence and the burden of
proof etc.
ee
It is necessary to consider separately certain issues whose classification as:
subskdinste’ or
procedural! raises difficulties. The following are some of the particular issues —
limitation,
evidence, parties, nature and extent of remedy, damages, judgments in foreign
currency and
execution. Out of which discussion is made here in the issues —limitation and
parties.

Limitation

England law. distinguishes tow kinds of statute of limitation, those which merely
bar a
remedy and those which extinguish a right (Philips v. Eyre, 1870). Statute of
former kind is
procedural, while statute of latter kind is substantive. In generai, the English
law as to
limitation of action had been as procedural (Williams V. Jones) but section 3(2),
17 and
25(3) of the limitation act 1980 are probably substantive since they expressly
extinguish the

title of the former owner.

‘
Sometimes a statute creates an entirely new right of action unknown to the common
law arid
at the same time imposes a shorter period of limitation than that applicable under
the general

law. E.g. Civil Liability (Contribution) Act 1978.

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Sec. | of the act states that where a person becomes entitled to a right to recover
contribution, it can-be enforced within a limitation period of two years. At common
law the
English Courts used the same distinction between right and remedy in characterizing
foreign
statute of limitation.

The Foreign Limitation Period Act 1984

It adopts the general principle, subject to an exception based on public policy

that the
limitation rules of the lex causae are to be applied in actions in England. The act
provides
that they must be deemed to conflict with public policy &f their application would
cause
under hardship to a party. English limitation rules are not to be applied unless
English law is
the lex causae. The applicable provision of the foreign lex causae is defined to
include both
procedural and substantive rules with respect to a limitation period.!

English law as the lex fori does however determine whether and the time at which
proceeding have been commenced within the time-limit.

Under the Contracts. (Applicable Laws) Act 19907, the lex causae governs both the
question
of limitation and prescription. These rules of the lex causae can oniy be excluded
if they are
formed to be manifestly contrary to public policy. After the enactment of these
laws, English
courts have applied the rules of limitation of the lex caus?

Case — Arab Monetary Fund’s V. Hashim (No. 11 (1996) 1 LI Rep 589 CCA.)
[Statutory changes]

The decision of the Court of Appeal is instructive in this regard. This is a case
in which law _

of Abu Dhabi was applied and held the suit was maintainable. The suit was based on
contract. Under that law the claim was not time-barred. To give effect to the
European
Community Convention on the Law Applicable to contractual Obligation (1980) the ECA
was enacted. The 1984 act broadened the common law approact which favored the
application of the domestic iaw of jimitation.

Lmt.(limitation) of Action in India

In India, our courts have generally taken the view that limitation only bares the
remedy
except in cases where the rule of prescription applies as when, if the time for an
owner of

' See sec. 4 of the Foreign Imt. Period Act 1984,

” Fderein afterward ECA.

property to file a suit for possession has expired, his right to the property is
extinguished.?
Under s. 3 of the act it is incumbent upon the court to dismiss a suit if it is
barred by

limitation,

The Supreme Court has reiterated the distinction between the rules of limitation.
Which
merely bar the remedy and the rules which extinguish the right, and observed that
the former
are procedural in character. -- syndicate Bank V. Prabha D Nayak

As far as suit on contracts entered into outside India are concerned, it is

provided that such
contracts would be governed by the period of limitation. Prescribed under the act,
and that no
rule of limitation iq the country where the contract was entered into would be
defense to a
suit in India [s.11] velji Bharmal v. Samji Pod AIR 1952 Kuch 27. The discretion of
courts

in India is thereof restricted.

Article 112 of the schedule to the limitation. Act, 1963 provides that the period
of Imt.
(Except in tlie case of the exercise of the original jurisdiction of the Supreme
Court) for the
suit filed by either the central or state govt. including the state of J&K would be
30 years.

Lmt. (limitation) Prescribed by local or Special Laws

Various Acts prescribed different rules cf limitation. In specified situation and

May also
provides that a suit should not be maintained unless notice of the proposed suit
pet is Ue?”
maintainable unless notice of the proposed suit is given earlier for e.g. Sec. 80
of CPC 1908.
It may be said that these provisions would apply if suits are filed in India.

Other statute prescribed special rules which are likely to involve a foreign
element: include
the carriage by Air Act 1972 (which implements Warsaw convention and The Hague
protocol relating to carriage by air prescribed a period of limitation. Geto year,
Carrier’s
act 1865, merchant shipping act 1958 and multimodal transportation of goods act
1993
provides that a notice of loss is to be given within a specified period before
filing a suit. The
rules prescribed urder these laws must be followed, if a suit comes within the
ambit of these
laws, as these beiig special rules would prevail over the general provisions.

Parties

It is for the lex fori to determine who the proper parties to the proceedings are.
Where
however the question turns on whether a political party has legal personality, the
English
court will accept the view of the law of the county in which the entity is
established. A

S. 27 of the limitation act, 1963.

business association created under Swiss law and having (though as a partnership it
woul.
have such personality ] English Law) legal personality under that law has been
entitled to su
| England [(Oxnard Financing S.A v. Rahu) 1998 | WLR 1465]. An Indian temple was
alsc
held to be competent clamant. [Bumper development Corp. v. Comm. Of Police for the

Metropolis 1991 1 WLR 1362]. The question needs to be considered in connection with
the
identity of the parties to the action. The first is the determination of the
appropriate person to

sue and the second concerns the identity of the person to be sued.

Proper Claimant

The first question is whether the name in which an action may be brought falls to
be determined
exclusively by the law of the forum on the ground that it is a mere matter of
procedure. It is a
question that arises principally where the claimant is not the original owner of
the subject matter
of the dispute, but has acquired it derivatively from the original owner, as for
instance, in the
case of assignment of a debt or other intangible movable. In those cases where
English law
requires the assignee to sue in the name of the assignor, it has been said (Wolf v.
Oxholm
(1817)) and indeed on one occasion held (Jeffery v. M’taggart (1817)) that the
requirement must

be observed in an action in this country (England), even though it is not necessary

by the law
governing the transaction.

But on principle it is doubtful whether every rule that regulates the name in which
an action must
be brought is merely procedural in character. Cheshire expresses his view that if
for instance,
English law still regarded a contractual right as so essentially personal as to be
actionable only at
the suit of the original contracting party, it would surely be negation of justice,
to enforce such a
rule indiscriminately as being one of procedure, and thus to defeat a claimant who
had acquired a

contractual right derivatively under some legal system that regarded the
transaction as vé lid.

One problem which can arise in determining who is a proper claimant is whether a
person will be
permitted to sue in England in a representative capacity, relying on an appointment
made under
foreign law,

KCamouh vy. Assosciated Electrical Industries International Ltd [1980 O13 199]

Im this case Parker J refused to recognize his title to sue.

Facts: The plaintiff was Lebanese. Because his brother had disappeared, he caused
himself to be

appointed by a court in Beirut as his brother's “judicial administrator”. In that

capacity, he

sought to bring an action in England on contract made between his brother and the
defendants.

Justice Parker observed that, in such cases, there are conflicting principles to be
examined: first,
that these courts should as a matter of comity, give effect to curator’s or
tuteur’s right under
foreign law to sue in his own name; secondly, that municipal procedure should be
applied. The
first principle prevails in the case of bankruptcy, receivership and the
curatorship of the mentally
ill; whilst the second holds sway in respect of an administrator of the property of
a deceased or

absent person.

The appropriate defendant

The second question relates to the party sued. It has to be decided whether a
foreign rule
determining the identity of the party to be sued, or prescribing the order in which
parties must, be |
sued, is one of substance or procedure.

In some foreign systems of law a defendant cannot be sued first. For instance, in
some foreign
systems a creditor cannot sue an individual partner without first suing the firm
and exhausting its
assets, or cannot sue a surety without first suing the principal debtor. Such rules
are in sharp
contrast to the rule of English law that any partner may be sued alone for the
whole of the
partnership debts, and that a surety may be sued without joining the principal
debtor. The
question is whether such a rule of foreign law is substantive or procedural. If the
lex causae
regards the defendant as under no liability whatever unless other persons are sued
first, the rule is .
substantive and must be applied in English proceedings [General Steam Navigation
Co. v.
Guillou (1843)]. If on the other hand the lex causae regards the defendant as
liable, but makes

the defendants’ liability conditional on other persons being sued first, then the
ruie is procedural

and is ignored in English proceedings.

Indian position: Generally. who are proper parties in a suit in India and in which
cases a suit
Would fail for a non-joinder of necessary parties would always be determined by the
lex fori.
These are laid down under CPC. Under Indian law. a partnership can sue or be sued,
at the
ad

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individually. (As per 69 of the Indian P

cannot sue). The s

firm.

artnership Act, 1932, a firm which is not duly registered

ame rule applies if a suit is filed against the individual partners of a foreign

ame of the firm and by or against all the partners —

~~
'S
Proof of Foreign Law

/
uestion of fact:

Points of relevant foreign law should be proved by the parties. They are treated as
questions
of fact; consequently they should be pleaded and proved to the satisfaction of the
judge as
any other fact. The onus lies on the party who wishes to rely on a foreign law. He
must state
it in his pleadings and prove it at the trial by adducing evidence. If he does not
do so, the

court will decide the case as it were a purely domestic case.

As arule, appellate courts will not disturb the findings of the fact by the trial
judge, but this is
not so when the finding relates to a question of fcreign law.

Parkasho v. Singh (1968)- In this case the erroneous decision given by the trial
court ona
point of foreign law was reversed and it was stated, “although the foreign law is a
question of

Jact, it is a question of fact of peculiar kind.”

Under English Law, foreign law is treated as a question of fact of which the judge
has no
judicial knowledge. It must be proved by ‘appropriate evidence’, i.e., by property
qualified
witness.’ An exception, however, applies in relation to Scottish Law. (it does not
have to be
proved in the House of Lords, as the common forum of both England and Scotland, for
their
lordship have judicial knowledge of Scottish Law)( Now the Supreme Court of England
is
established). In this context it is also to be mentioned here the British Law
Ascertainment
Act,1859. As per this act if the foreign law involved is the law of “some british
territory”, the

court has the power of ascertaining that law and applying it, although it has not
been pleaded

or proved by the parties.

Under English Law, foreign law must be proved by expert evidence. It cannot be
proved by
simply placing the text of the foreign law before the court or hy citing foreign
decisions or
foreign text books. These can be done only by an expert witness, as part of his
evidence, and
subject to the cross examination by the opposite party. The court can evaluate and
interpret
the text of a foreign law or a foreign decision or the opinion of an academician
only with the
assistance of an expert giving evidence before the court. When the judgements in
the foreign
country in question conflict and there is no decision regarded as binding in that
country, the
English court has to choose between them ( Re Duke of Wellington (1947) Ch.506).

Who is competent witness?

No ciear cut answer can be found from the English decisions. The general principle
is that no
personf is a competent witness unless he is a practising lawyer in the particular
fegal system
or unless he follows a calling in which he musi necessarily acquire a practical
working
knowledge of the foreign law. Practical experience would be a sufficient
qualification. Thus,
not only a foreign judge or legal practitioner would be a competent witness, but
also such
persons as an Ambassador and Embassy official, a reader in law, a Roman Catholic
Bishop

have been held to be competent.

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Position in India:

th
The proof of foreign law is provided for |the Evidence Act 1872. Section 38 of this
act
provides that any official publication of a foreign country containing its laws or
law reports
can be admitted in evidence. Section 45 provides that expert evidence can be led on
what the

foreign law in a given case is. Under section 45, a person who is “specially
skilled” can e_

give expert evidence on a subject. The flexibility of the language gives

considerable latitude
to a court to decide who can be regarded as an expert. Under section 78, “public
documents”
include the legislative acts of any country. Under section 81, a court can presume
to be
genuine official copies of British Parliamentary Statutes.

In a matter under section 45 of the Arbitration and Conciliation Act 1996, the
Supreme Court
held that Japanese law could not be proved by affidavit evidence, and evidence
should be led
as ina trial. (Shin Etsu Chemical Co. Ltd v Aksh Optifibre Ltd, AIR 2005 SC 3766).

Both High Courts and the Supreme Court have often referred to decisions of English,
Australian and American Courts to set out the positions in the laws in those
countries; this
has been done not in cases where foreign law was required to be proved as a fact in
a private
dispute but as such decisions were of persuasive authority in applying Indian Law.
Generally
this has been done in constitutional law and administrative law cases, and has also
been done
in cases where our statutes are based on the common law, or are similar to English
statutes.
No such cases raise any issues of Conflict of Laws. If a question of conflict of
laws does

arise, expert evidence is to be produced, (Technip S.A v. SMS Holding (Pvt.) Ltd.
(2005) 5
SCC 465.)
Exclusion of foreign iow |

'

In any system of conflict of laws including Indian system, the courts retain an
overriding
power to refuse to enforce, and sometimes even refuse to recognise, rights acquired
under
foreign law on grounds of public policy. The scope and extent of exclusion of
foreign law
varies from country to country. In countries following the constitutional system of
law what
is excluded is what offends the domestic law notion of public welfare by applying
the
doctrine of ‘crder public’. The scope of order public is wider than that of public
policy in
English law.-Probably because of English courts invariably apply English domestic
law in
many types of family proceedings such as those involving divorce, maintenance or
the care or
adoption of children. Thus, foreign law is inapplicable in many important
departments of
family law and in continental European countries, it is frequently excluded on the
grounds of
‘public policy’. The danger of this vague doctrine is that it may be interpreted to
embrace
such a multitude of domestic rule as to provide of a fatally easy excuse for the
application of
the law of the forum and thus to defeat the underlying purpose of private
international law’.

The analogues English doctrine, though less unruly is indeed all above suspicion in
this

respect.

Summarily stated, it withholds all recognition from any foreign law o: judgment
which is
repugnant to the distinctive policy of the English law, and it refuses to enforce
any foreign
law which is of penal, revenue or against ‘order public’ law nature, Further more
foreis:n.
expropriatory laws will in some circumstances, not be recognised and in other
circumsiances,
although recognises will not be enforced. Finally the mandatory rules of the forum
may be

applied, with the result that, to that extent a foreign Jaw is excluded.

The nature and scope of the public policy doctrine was fully examined in the case
off Kuw ait

————

Airways Corpn. V. Iraq Airways Co. 2002 UKE 19} 7 The case concerned the seizure by
rene eae perenne

the | Iraqi Govt. in the immediate aftermath of the Iraqi invasion of Kuwait in
1990, of aircrafi

belonging to the claiinant company, and the effect of an Iraqi govt. resohition
transforming
the ownership of the aircraft to the defendant. Lord Nicholas described the norma!
working of
the conflict of laws, whick often leads to the application of the laws of another
country even
though those laws are different from the laws of the forum. It was overwheimingly
the
normal position, but blind adherence to foreign law can never be required of a0
English eo uri

and continued “exceptionally and rarely, a provision of foreign law will be

disregarded when
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it would to a result wholly alien to fundamental requirements of justice as

administered by

L464 LUGE

English Court”. A result of this character would be acceptable to English Court. In

the
conventional phraseology, such a result would be contrary to public policy then the
courts
will decline to enforce or recognise the foreign decree to whatever extent is
required in the

circumstances. lLimitahon
Law abbled will cove hanm to the yudgee
In English domestic law it is now well settled that the doctrine of public policy
should be

only be invoked on clear cases in which the harm to the public is substantially
incontestable,

and does not depend upen the idiosyncratic inferences cf a few judicial minds.. In
the conflict

of laws it is even more necessary that the doctrine should be kept within proper
limits,

otherwise the whole basis of the system is liable to be frustrated. It is note

worthy to mention

t@uteownv

here that view of Justice Cardozo, that the courts are not free to enforce foreign
rights at the
pleasure of the judges, or to suit the individual notions of expediency or
fairness. They do not
close their doors unless it would violate some fundamental principles of justice,
some

prevalent conception of good morals some deep rooted tradition of the common wealth
+ ash

Instances where fundamental policy i is infringed -

J. When fundamental principle of English justice is disregarded, e.g. violation of
the
: i principles of, natural justice | is that no opportunity was given to the other
party to
present Chis case, TO MOM | nde Ww Ow Cove
2. When English conceptions of morality are infringed. E-g]- a-contract or some
other
transaction which promotes sexual immorality, a contract to pay money to a
prostitute
as the price of prostitution ete. agounst } bublic bol Oley

J
3. When the interest of UK or its good relations with foreign powers are affected,
e. g. a

contract to pay money for revolutionary activity ina friendly country or a contract
to
import liquor in violation of the prohibition laws of friendly foreign country or a
contract to export prohibited commodity etc.

4. A gross infringement of human rights. /E.g.) A german decree during the Nazi era
depriving J ewish emigrants of their German nationality and consequentially leading
to
the confestication of their property which constitutes so grave an infringement of
human rights that the English Courts ought to refuse to recognise it a law at all.
Now a
day’s human rights are protected under the European Convention on human Rights. In

recent years human rights has been used to cast light on public policy defence to

recognise and enforcement of foreign judgment.

SO WWNHHAKWHRUBH UU YUL USO

5. English courts will give effect to the result of any status expiring under a
foreign law
- ; € which is penal, i.e. discriminatory, e.g. the status of slavery or civil
death and the
\ “ “\ ~ disability or incapacities which may be imposed on priests, nuns,
Protestants, Jews,
persons of alien nationality, person of certain ethnics groups and divorced
persons.
Some of the disability or incapacity is obviously impose as a punishment. E.g.
Inability under some system of person divorced for adultery to remarry while the

innocent spouse remains single) 2 OM pay ich Cann dl seywaray.

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Foreign penal Jaws /

It is an obvious principle that an act of sovereignty by one state cannot have any
effect in the

territory of another state. The infliction of penalty normally indicates the

exercise of

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sf CLL) . sos
sovereign power. Consequently, English Courts will not directly or indirectly
enforce forei gn

penal laws. It is necessary to bear in mind that a penal law in this context means
a criminal
law imposing a penalty recoverable at the instance of a state or its duly
authorised agent and
, in the matter of classification, it is for the English court to decide according
to its own

) interpretation whether the foreign law in question is penal or not in character.

It is not bound

by any different interpretation which may be placed by the foreign law.

!
an

~
rnc

In this case the rule (‘the courts do not recognise penal law’| was explained. The
rule is
founded on the well recognised principle that crimes including all breaches of
public iaw
punishable by pecuniary or otherwise, at the instance of the state govt. are local
in this sense
that they are only cognisable and punishable in the country where they were
committed.
Accordingly no proceeding, even in the shape of civil suit, which has for its
object the
enforcement by the state, whether directly or indirectly, of punishinent imposed
for such

breaches by the lex fori, ought to be admitted in the courts of another country.

Although this principle is almost universally accepted, modern state practice

requires some
qualification of its more expansive formulations. There are a growing number of
international
treaties under which states including UK, provide mutual assistance in the conduct
of
criminal prosecutions. |For example)| compulsory measures available under the laws
of one

state may be exercised at the request of a foreign state to search and seize
evidence or to

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> SS h ee EOS ek eee i i Laer
hk dee bi ae RR Ba al Pe ala all |
A ( tne ecascd 4h
They dow oy % el yo ML) @ ww Wag Cl OAnd al
~ Te LA, —_ -- a

‘al, . ~ . . . .
freeze and conf¢sticate the profits of drug trafficking. International practice of
such type is

reflected 1 in engis' law in legislation such as crime (international Cooperation)

Act 2003.
[Oink CA ly n hou made }

cee

Ya Septem v. Ae ill, {the court held that New York Coit is 5 not penal but remedial
in nature.
By provision of a New York statute the director ofa company were personally liable
for

debts contracted by the company upon proof that false report of its financial
conditions had
been published. Sums so recovered were payable to the creditors in satisfaction of
their debt.
The defendant was the director of a New York Company he had signed a certificate
which
stated falsely that he whole of its capital stocks had been paid up. The plaintiff
who had lent
money to the company sued the defendant for the recovery of the loan and obtained a
judgment. As the judgment remained unsatisfied, the plaintiff brought an action on
it in
Ontario. The defence was that the New York law under which the New York judgment
was
obtained was penal in nature and hence Ontario court could not enforce the
judgment. In
support of this defence, reliance were placed on the fact that the New York Courts
had
interpreted the above pte RPE The Privy Carat nae peinciple that foreign
penal laws| are not botnd by the vie taken by foreign courts as to the nature of
law in

question. Whether the foreign law is penal orsnet in character is f4-to be decided
d by the

English’ Court, The Privy Council analysed the New York statute and held that the
statute was

not pend but remedial only.

bp f,,° ,
Teno Pya) vo} 04 Love OO lL

Sit Sad lara q

\ Banco D De e Vijeaya v. Vv. Don Alfonso De Eien “Austria jf

CSE Pee eer

niccaanish er —
In this case the foreign law was considered as penal and was refused) enforcement
in England, |

Facts — the King of Spain deposited certain securities with the West Minister Bank
in
London, The king was expelled and a new Spanish republican govt. decreed that all
his
properties and rights, were ever situated should be confisticated and seized for
the benefit of
Spanish state. In pursuance of this decree an action was brought in an, English
court by a

nominee of the state to recover the security from a bank. The action was dismissed
holding

f A 4)
the Spanish decree to be penal in character. Directly Related to cartockiss sf

oO
for © ui fy) pen »,() (ou 4

4
This is a more recent case on the question of enforcement of the foreign penal law.
Lord

Denning regard a nwzeland statute as coming within the category of public law
rather a penal

law. [Facts ~ A maori carved door was 1 moved from newzeland without permission of
the

—_ =

eperepeee authorities and was eventually offered | for sale by the 1" defendant by
auction in

Wn Ch { 4 ad ‘ebbe
t

fepal) rat eare cen

- 1 ) ie a lha. 9 force
London. The attorney general of Newzeland alleged that the state was the owner of
the door
and sought an injunction in the English courts restraining the sale and an ordered
for delivery
of the door. The basis of this claim was the newzeland statute which, in certain
circumstances
provided for the forfeiture, without compensation of historic articles. In this
case at the first
instance judgment was given in favour of the plaintiff. The court of Appeal allowed
an appeal
on the basis of the point of construction of the statute. It was held that statue
only provided
for the forfeiture of the historic articie when the goods has been ceased by the
appropriate
newzeland authorities and this has not happen dint he present case. But the court
of appeal
went on to discuss the wider points of the nature of the newzealnd statute. [twas
held.that
newzeland statute was a penal law and thercfore would not be enforced in England.
The
claim was made by the attorney general on behalf of the state. The cause of action
concerned
a public right. The preservation of historic article with the govt. and vindication
of the right
was sought through forfeiture of the article without compensation. ‘As already
stated above
lord Denning expressed himself in different terms he regarded the newzeland statute
as

coming within the category of public law rather than penal law.

In this case the decision of court of appeal was upheld on the narrow point of
construction of .

a A . } we a
, beep . AAR ‘tin aad COMM
statute, A\V { ~ + @\ x

boda pr LANs es MoT Penal

f
ws Bovow ALPVORON *
Us (eve: 4 RAT)
Vey 5

id) own | il) 4, mOVICRAN | hoot. 07

Foreign revenue laws Owrome bayed on statue pro Iron Infos jp? ob aN

pects A ——
[Lord anata in the case ofithe holsman y. Jhonson 1775. /

> Tot we Loon’ OF NOFTCe -

No country even take notice of the revenue laws of another. Since then it was
assumed that

English courts will not enforce foreign revenue laws .in this case the court was
not directly
concerned with the case of foreign power swing in English court to recover revenue.
Doubts

were raised as to whether the principle would be accepted by the higher’court in

the modern

conditions. All such doubts had been put at rest by the decision of the -|House of
Lords in

. Gov. Of India v, Taylor. 1955) i in this case the Govt. Of India claimed from a
liquidator in

England a large sum of money due as capital gain tax under the following
circumstances. The

Delhi electric company limited was a company incorporated in England but carrying
on

business in India. In 1947 the company sold its business to the govt. of India the
sale price
pal
was ay/to the comp. In India and the amount was remitted to England after a few
days. 2

year after this the company went into voluntary liquidation in England Taylor was
appointed

PY

: - j {
5 nf QMUMAe AW Wok Cal Orteadile WwW Up LO *

—) . m

ANY
V ]
S

40 action of Soverpy stale -

a
eS
9
a
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Oa
eq! ¢
~
al
Coy
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a
3
cS
a
r
ey
el
el.
—.
~
os
.
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e—
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“AMA ba wy Are wd for ¥ {LL Ds uy ET A f

as liquidator. In the liquidator proceeding the Indian commissioner of income tax
claims
about 11.5 lac. Of rupee due to GOI as capital gain tax on the sale of company
business.
Liquidator rejected this claim. House of lord held that for the goi. It was
contended that the
rule of exclusion of foreign laws properly applied only on penal laws and it was
wrong to
extend it to revenue laws further whatever may have been the rule in the past,
there is
necessity for modification in the case of the country belonging to the
commonwealth,
particularly in the case of taxes similar to those imposed in England. These
arguments were
not accepted by House of Lords. It was unanimously held that the English courts
will not

enforce the revenue law of other country. Tax gathering is not a matter of contract
but of

authority and administration a3 between the state and those within its jurisdiction
and it is

settled principle that English courts refuse to enforce any ‘claim which in their
view is a

manifestation of a foreign state sovereign authority.

A foreign revenue law is a law requiring a non contractual payment:of money to the
state or
some department or sub-division thereof. It includes income tax, capital gain tax,
custorn
duty, death duty, local rates or council tax, compulsory contribution to a state
insurance
scheme and a profits levy. English courts will not enforce foreign revenue laws
either directly
or indirectly. Where no enforcement either direct or indirect arises foreign
revenue laws arc
freely recognised in spite of Lord Mansfield claim. ' dul ¢ e ay ex ¢ lurton TO p i
ax

bul nes Sey AROVELE WY VeVEMME

Foreign Expropriatory legislation “ V U

To what extent foreign laws of expropriatory nature will be recognised by English

courts is a
question one will find discussed in public international laws. Such laws are not
directed
against a particular person as in Don Alfonsos case, but are general in nature
exploring all

Private properties to the state.

In determining the effect of a Aoreign expropriatery legislation, the Faglish judge

will look

4“ A 5 |

into three factors, namely » * roljedy si puabe@

‘ \

(1) The interpretation of foreign legislation.

(2) The situs of property at the time of legislation

(3) The question whether the foreign sovereign was in aciual possession or control
of the
properties situated within the territories of the foreign state, the expropriatory
law will

be recognised and given effect to in England, although the property in question was

u Ll of 4
aw t HOLA

V )
later brought to England and was there during litigation. This is the position
taken in
(

the important case of Luther y. Sagor. |

But a foreign expropriatory law cannot affect the ownership of properties in

England at

the time of foreign legislation.

Under a decree of nationalisation, the society authorities seized plaintiff's

timber which
was situated in Russia. Part of this timber was later brought to England and sold
to the
deferdant by a soviet agent. The plaintiff sued in England on the basis that the
ownership
of the timber now in England was vested in him despite the Russian decree of

nationalisation. The court of Appeal rejected the plainiiff claim. Court, even
where

In case of ‘the rose mary case’ — Anglo Iranian Oil Co. V. Jaffrate 1953 1 WLR 246
it

was held that the decision in Luther vy. Sagor is not applicable to the
confistication of the
properties belonging to an alien unless adequate compensation is paid.

wa
sO f

\ Mandatory Rules — a fOr ¥{ } ey )

The concept of mandatory rules has only recently been introduced into English law.
Mandatory rules of the forum have been described as domestic rule which are
regarded as
so important that as a matter of construction or policy they must apply in any
action
before a court, even where the issues are in privilege govemed by a foreign law
selected
by a choice of law rules. The statutory and EC rules on choice of law in respect of
trusts,

contracts and torts all have rules providing for the application of the mandatory
rules of

the forum.

An example of English mandatory rules is provided by the controls on exemption

clauses

-——————

contained in the lunfair contract terms Act [1972. The fet itself stipulates that
in certain
i .
circumstances these controls shall apply despite the parties choice of a foreign
law to
govern the contract. The concept of mandatory rules is a positive one, the concern
is to
apply particular domestic rules where the concern is that a foreign rule should not
be
applied, and i.e. they are negative concepts. However the effect of the application
of
mandatory rules of English law is that a foreign domestic law, which would
otherwise
govern under choice of law rules, is not applied. To that extent application of
mandatory
rules can be regarded as an exclusionary concept. At the same time and this brings
out the
essentially different nature of mandatory rules, there can be circumstances where
the

concern is to apply the mandatory rules of a foreign country, rather than those of
the

SH AAAADABAPENDANAHANIANANANANAMMANHA®S
Moxdatory Rules

forum. The Statutory rules on choice of law for trusts and contracts provide fer
the
application of foreign mandatory rules, Naturally, under the particular provisions
it is not

4 case of the exclusion of a foreign law, but of its application.

Exclusion of foreign law — Indian Approach

The principle that no court would enforce a forei gn law or a judgment is doing so
would

4 cu
Violate its concepts of public policyis also being followed in Indit(In Renu Sagar
Power

Co. Ltd. V. General Electric Co. Technip SA y. SMS Holding (Pyt. Ltd) the Supreme
Court adopted the same mule of English law. \

Renu Sagar case AIR 1994 SC 860 | See LE

Techuiip CAv CHS toler g CP. U2 CQon x) 5S ,

Indian Supreme Court las observed generally that foreign revenue laws would not be
enforced. {Viswanathan R v. Rukne=}~ ul — Mulk syed Abdujl Wazid AIR 1963 SC

. fp
7
- | f ore, (ot nox s
; )4 nt She (TUBKLED rev ee
te . rove / ~
f ~Y
—~F . \ satel Op
ROA SOvevan w oid ot
7 -|
ee f VU f f Of Y ue
co Nn #4 5
a, , (ects (aks JU
Cpe P--X i () ted
wv \ L/ | JS VV ,
= oo ’ 4 hA
n expr:
A o Ne/
a .
= ) os }o tren.
notional cane
x Law tRe lace ~ teoble ove b , . ed).

a he " place 4 cout J qos

KH. Plece of doniteile . |

A - Comal low Jrashebon Nationality and Sere

XK — Nedrena tity Y decidue aor

“H - Country's Loo.

In England and most common law jurisdictions, the concept of domicile

HnVAIHANHS®

is adopted to determine an individual’s personnel law. Personal law may be

aes personne os

\
t

defined as the law of the country to which a person primarily belongs,

“udodddu

especially for the purposes of many matters of family law and succession. In

other words, the personal law of an individual determines such matters as :

_Q) the essential validity of a marriage;

(2) the effect of marriage on the proprietary rights of husband and wife;
Z

ec

(3) wills of movables and succession to movables;

(4) jurisdiction in divorce and nullity of marriage , and to a certain extent

, legitimacy of children and adoption etc .

For the purpose of the above matters, England regards the concept of
domicile as the decisive factor. In contrast, civil law jurisdictions regard
nationality as the decisive factor to determine an individual’s personal law.

This will create problems of Renvoi

For instance in|Re O'Keefe (1940)h where Miss O'Keefe, a British subjeci

of Irish origin, died intestate and domiciled in Italy. By English law the

7
gCuecteeos

distribution of her estate, which consisted of movable property, was subject to

the law of her domiciie, i.e., Italy. By Italian law, however, this was subject to
the law of her nationality which was British. Accordingly, it was held that the
only part of the British empire, to which she could be said to have belonged,
was the part from which she had originated, namely Ireland. Therefore, Renvoi

applied and her estate was distributed according to thelaw of ireland |

In order to circumvent this problem of conflict between nationality and

domicile, the concept of Habitual Residence has been selected as the decisive
=> Denvei ene a DW oa problem, and) One Wan ba golitton
7) Froblem wath, docu le Cure? miQerelle ba neeble °

A
4

PADDODIEPPUEDIGIDPHEAQCPPIFHNVOVNNE

ebb bh ak Oo Bae poUUG

tf
ood

= a

|
bi

at
2
—
=>

=!

Cesdssssssds

hewuseddd

r Gomicile ts creating cela problem.

Ke powleide | “epee dna Ot Ort. -

wn Demers i vpaloone Gy prowesple |

ar

factor to determine an individual's personal law in a number of international

conventions seeking to regulate issues of family law, in particular recognition of
divorces. An example of such conventions is the Hague Convention on Private
International law which refers to habitual residence rather than domicile or
nationality. Habitual Residence has also been used by the British Parliament in
various Acts, such as| Sec 46(1) (| of un] Femi baw Ae 1986}eich provides
that a foreign divorce is recognized in England ifit is effective under the law of
the country where it was obtained, and if at the date of the commencement of

the proceedings, either party to the marriage was habitually resident or

domiciled in , or was a national of that country

As to the meaning of the} habitual residenc, it was described by the

English court in{ Cruse Vs Chittum (1974) | where it was held that habitual

residence for the proposes of Sec 3 fof the Recognition of Divorces and Legal
Separations Act}1971 (now /sec 46Jof the Family Law Act 1986) meant ‘a regular

Physical presence which must endure for some time’. It meant ‘something more
than ordinary residence something less than domicile’.

The concept of domicile is not uniform thorough out the world. To the
continental lawyer, It means habitual residence, but in English Law it is
regarded as a person's permanent home. What this in fact means is not clear.
Lord Cranworth, in the case of Whicker v Hume (1858)} declined to clarify this
motion and said " ...... if you do not ‘understand your permanent home, I’m
afraid that no illustration drawn from foreign writers or foreign anguages will

very much help you to it".

The meaning and definition of domicile were elucidated by the private

\2n ternational law Committee jn its first report in]1954 [as follows:

"A person's domicile may be defined as meaning the country (in the sense

territorial unit possessing its own system of law) in which he has his home and
intends to live permanently. The law regards every personal as having a
domicile, whether it be the domicile of origin which the law confers on him at

Hajne Converbso Cu privedle Ont lau.

SS

Hlabitnal Piidence— “tors New prince le ovr lvecl).

dV
aeetasye] cecce Dl) trent eee"

pont

Posthumous child, i.e.. a child born after his or her father’s death, derives his

or her domicile of origin from that of the mother. As for the domicile of origin of

a foundling, this is derived from the country where he or she is found.

Furthermore /a domicile of origin is the domicile acquired at birth and

| not the domicile of dependence as at the date of reaching the age of majority) )

{Henderson v Henderson (1967). / Boy When w o¢ bop 4 on baw x,

~dowd eel ¢ a

Domicile of Choice ~~

Every independent person is capable of acquiring a domicile of choice by

ZL... : . ; “Sint >

residing in a country, other than the country of origin, with the intention of
Both the elements of residence and intention

remaining there permanently.

must be satisfied before English law can recognize a change of domicile.

Although these elements are considered Oe they are interrelated.

o&- Shidiy ro w eMnOon . Sx~
Proof of Domicile of choice

It is a well established rule that the onus of proving a change of domicile

jies on the party alleging it. Conflicting views have been expressed in relaticn to
the standard-of proof-required. According to ‘Sir Jocelyn ‘Simon P} Pjclear
evidence
is required to establish a change of domicile. In particular, to displace the
domicile of origin in favour of domicile of choicefthe standard of proof goes

anderson (1967 })).[7

(Handerson v H

ul

beyond a4 mere balance of probabilities

. . . i | ) No
Scarman J examined the issue in the case of In the Estate of Fuld ‘No3)]~ PD

(1968 ) And stated what has to be proved ‘is no mere inclination arising from a Den
;

: Passing fancy or thrust upon by an external or temporary pressure, but an pom

A

intention freely formed to reside in a certain territory indefinitely . All the /

}

elements of the intention must be shown to exist if the change is to be

0}

©stablished’. He nevertheless rejected the view that the standard of proof mus

be beyond reasonable doubt, and he concluded that two things are clear. First,

“unless the judicial conscience is satisfied by evidence of change, the domicile

©f origin persists’. Secondly, ‘the question of domicile of choice is a serious/

STAN ARE or yzo\

[ «

nN A f~ + bom

Povowred abl rook SUG Ge tled/ uy LS tate “Ltd [Ve

Y

/ ,; ;
matter not ‘to be “lightly inferred from sigh indications or casual words’.

| Scarman J J'lapproach seems to be the preferred one, for it was endorsed by the

“Court of Appeal imj-Brown V Brown} (1982) and it is also the approach

recommended by the Law Commission Report No. 168 on the reform of the law
SEE

of domicile. (mportant proposals for the reform of the law of domicile made by
[

Commonwealth Countri 1es overseas but vorate they were r

a {ely A Or orn

rajected by the |
Government in 1996 for England and Wales.) In Scotland the law in relaticn to

the domicile of persons under the age of i6 years has been reformed (Family

Law (Scotland) Act, 2006). GI foe gd ence Cannot eth domucale'

GQ} . bsuad .
Residence . Ome): 4 MYT CMAMOY, TL! A &
cen ate ntor YD HOE hey m7 than Wwe oho Yer
It has been defined as ‘physical presence in that country ¢ as an inhabitant of it
pee never SION tts tents erences
(IRC v. Duchess of Portland, 1982) | So, residence is more than mere physical
presence. and, therefore, “does not cover the situation where, for example,

presence in a particular country is for the purpose of holiday-making. A person

Can acquire a dornicile in a country, if he or she has the necessary intention,
after residence for even part of a day. (Miller v Teale (1954) 92 C.L.R 406). The
length of residence is not important in itself; it only important as evidence of

intention. Thus an immigrant can acquire a domicile in a country immediately

after arrival there. “It may be conceded that if the intention of permanently

residing in'a place exists, residence in pursuance of that intention, however

_Short will establish a domicile” (Bell Vv Kennedy) /(1868). In order to be

resident
in @ country a person need not own or vent a house there It is sufficient to live

} [1928] A.C. 217 ||Matlon v v Matlon (1952) or in a house

ina hotel/(Levene. v IRC]

Ofa friend|(Stone Vv “Stone{1958) 1 W.L.R. 1287), or even in a military camp

(Willar v ; Willar 54 S.C.144))_

* However, it has been held that a domicile of choice cannot normally be

€Stablished by illegal residence, | (Puttick V “Attorney General] [1980]

Fam.1German terrorist in England on false passport) but the court enjoys a

?
u
HAA to A
~~ } | |
or 4 abe { Lun 4 7) A {4 “) ij ra Oty
| Vr é lig ; , A fp 4 ie ~t.,
ee: ~ OW bs | { Wit fp /
Ws -
—_ C bac f Ly 1OUL@e oe ( } ( (i wf } "A fof) f Le
( > (ent v ¢ 5 Vu GM 7 On a ey ce TN eld vem 4p Stow Thee
n Me WG ‘ | i _f ‘ A Vs
fi . BAK Py, O CLUS 3, Ce Sy
margin of discretion as “to whether the element of illegality precludes the ©, ~)
acquisition of a domicile of choice|(Marlk Vv Mar rk }200: 4| 3 W.L.R. 64). jeds £
, ———— Seng)"
/¥

It has been suggested that the distinction between an inhabitant and a

person casually present is of limited value in cases of dual or multiple
residence, and that a person who retains a residence in his domicile of origin
can acquire a domicile of choice in a new country only if the residence
established in that country was his “Chief residence” (Plummer rv IRC](1988)). It
seems better to regard questions of this sort, as to the quality of residence, as
primarily relevant in considering whether the propositus has the intention of
permanent or indefinite residence. (In the Law Commission’s proposed

statutory reformulation of the rules as to domicile, the term “presence” was tf

4

. > Pre L & ef o€

used in place of “residence”.) peguaed

Sonlen y" ve pewad) (Or. pathol boar?

Intention fs Poe shoul > Ibe th ~ tae (Nor ITC NY N) the Ce

The intention which is required for the acquisition of a domicile of choice (often

rk ‘

referred to as the animus manendi) is the intention to reside permanently or for

an unlimited time in a particular country. “It must be a residence fixed not for
a limited period or particular purpose, but general and indefinite in its future

contemplation “\ Udny v Udny (11869 )) . If a person intends to reside in a

country for a fixed period, the intention necessary to acquire a domicile there is

an eet atta NN el ag

lacking, however long the fixed period may be. (Attorney | General v Rowe.

(1862)). The same is true when a person intends to reside in a country for an

indefinite time (eg., Until passing an examination) but clearly intends to leave

the country at some time\(Jopp v VW/ood \(1865)) .

What may be deduced form these principles is that the burden of proving
a change of domicile is an extremely heavy one. Indeed this is so, if one

€xamines two leading House of Lords decisions, namely|Winans v Attorney]

General (1904) and \Ramsay “v_ Liverpool | Royal Infirmary (1930), where it
appears that there is almost an irrebuttable presumption against a change of

domicile.
t> \ SP 8 ‘ Le) were a A A 4
ee pr vin wen mae cary , 4 re fab Li Fe
Osowat the y » dowrulle »
\ V "
W °
, @AAS AWA.

Domicile of Corporations

A corporation is domiciled in its place of incorporation (for purposes

other than those of the Civil Jurisdiction and Judgments Acts 1982 and 1991).
Unlike an individual, it cannot change that domicile, even if it carries on all its
business elsewhere. This concept describes a certain type of link between an

individual or a company, and a country for the purposes of the Brussels

Convention 1968. Under jsections 41 to 46] of the Civil Jurisdiction an

Judgments Act, 1982 domicile is equated with the State where a person or a
corporation is resident and the nature and circumstances of their residence
indicate a substantial connection with the State. Similar provisions apply in

the context of the Lugano Convention. . .

Domicile and Nationality Contrasted

Until the beginning of the nineteenth century, domicile was universally

regarded as the personal law for purposes of the conflict of laws. The change
‘from domicile to nationality on the continent of Europe started in France with

the promulgation of the Code Napoieon in 1804.

The advocates of nationality claim that it is more stable than domicile because
nationality cannot be changed without the formal consent of the State of the
new nationality. The principle achieves stability, but by the sacrifice of a man’s

personal freedom to adopt the legal system of his own choice.

It is also claimed that nationality is easier to ascertain than domicile because it

involves a formal act of naturalization and does not depend on the subjective
intentions of the person concerned. This is undoubtedly true, though there

may be difficult cases of double nationality or of statelessness.

Since the object of referring matters of status and capacity to the personal law
is to connect a person with one legal system for legal purposes, nationality
breaks down altogether in the case of a federal or composite State containing

more than one country.

Lf, LBL Le kh vel OOD ele

—~A Te RnR Ra QHNHRHKRrRAMNDH KR wo

™ meimra ir OH
DOMICILE - INDIAN LAW
Indian Statutory Provisions Regarding Domicile

| Section 5 of the Indian Succession Act of 1925 reflects the well-known

principle of English Private International Law that the succession to the
movable properties of a deceased person is regulated by the law of the country
where he was domiciled at the time of his death. The Indian Succession Act
goes on to make some provisions for determining domicile, but there is no
definition of domicile anywhere in the Act. Most of the rules regarding domicile

containing in the act are simply codifications of the settled principles of English

Law. For instance, [section 6}of the Act provides that a person can have only

one domicile for the purpose of succession to his movable property. Section 7

and 8 of the Act codify the English rule as to domicile of origin and section 10

deals with acquisition of domicile of choice. [Section 10) along with the

explanation and illustrations clearly adopts the basic English rule which

requires the combination of factum (residence) and animus (intention) to

acquire domicile of choice.

i ara
(Sackaran Govindan. v Lakshmi Bharathi (AIR 1964 Kerala 244, Appeal)

me

AIR1974 SC1964)

In this case dispute arose as to the properties of a propositus were to be

- divided and in that connection it became necessary to decide the place where
the propositus was domiciled at the time of his death. The Kerala High Court
observed that strong evidence was necessary to displace the domicile of origin
by a domicile of choice and held that there was no sufficient evidence to
establish that the propositus chose the English domicile and decided to make
England his permanent home. On appeal, the Supreme Court held that the
propositus acquired an English domicile on the ground that the intention of the
Propositus was not to return to India and the letters written by him were not
_ Containing a real expression. Kerala High Court relied on those letters and held

that he had not acquired the English domicile. Constrru oN of(gar-s 4 +o || Cn sN

Oy ; }
SC wee C nels Laud

VY
We apn —_—_

Vor) - Troved Re’ vont Re aN Dour | - - ew

}

—-

o A ; ,
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Domicile in the Constitution of India

According tol Article 5 ff the Constitution of India, “domicile in India “is one of
the conditions to be satisfied for having Indian citizenship at the
commencement of The Constitution. The term domicile is not defined in the
Constitution. In several cases coming under Article 5, the Supreme Court has
adopted and reiterated the principle of English Law for determining whether a

particular person had a domicile in India.

Abdul Samad Vv v State Of West 1 Bengal (AIR 1973 SC 505) ) |

In This case ° Supreme Court observed that the term domicile used in Articie §

meant the place which a person had fixed _as_habitation. for{himself)and his
family) not for a mere special and temporary purpose but with a present

intention of making it his permanent home. (a thot +t fA @ \ YRE CENT INTE tr

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Domicile and citizenship are wholly distinct concepts,| the former refers to a
person’s civil rights, the latter to his political status Joshi (D.P.) v State of

Madhya Bharat AIR 1995 '$C334).

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Domicile and Residence

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Though etymologically, both domicile and residence have the same meaning of
domicile, and are related concepts, they are not the same. In the field of the

Conflict of laws, they have wholly different connotations (Union of India v Dudh
Nath Prasad AIR 2000 SC 525).

It may be concluded that in India, whilst there have been few decisions on the
question of domicile in the context of an issue raising a problem in conflict of
laws, the question has been often considered in the light of the provisions of
the Constitution relating to citizenship, and rules made by several states
relating to admission to educational institutions, both of which require a

consideration of the question of a person’s domicile. In contrast to the federal

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countries in India(which is not a federation in strict sense) there is a common

system of courts and many all-India laws, there can only be one domicile
throughout India but in intra-India conflict of laws situation this position may
be differed (Joshi (D.P.) v State of Madhya Bharat AIR 1995 SC334, Kamalabai
v Devaram Sona Bodgujar AIR 1995 Bom.300).

It has also to be borne in mind that in India, the Indian Succession Act
1925 lays down detailed provisions relating to domicile, and though these
provisions do not apply to either Hindus and Muslims, and not only apply,
even in the case of Christians and Parsis if a question arises as to the
succession to the movables of such persons, courts have frequently applied the
provisions or the principles incorporated in the provisions, which were based
on the Common Law, in other contexts. Sections 6 to 18 lay down detailed
rules relating to domicile, and they, or rather, the principles 0n which they are

based, have been applied by Indian Courts even to Hindus and Muslims.
Domicile of Dependent Persons

Formally in English law there were 3 classes of dependent persons for the
Purposes of domicile —- infants, lunatics and married women. The last category,
tmeurricd women, have now been free from the dependent status after the

Donnicile and Matrimonial Proceedings Act, 1973.

It is necessary to avoid confusing domicile of origin with domicile of

Gependence. A child acquires at birth a domicile of origin, by operation of law.

’ This will be the domicile of his father if born during the father’s life time and

the child is legitiniate. If illegitimate or born after the father’s death the
child
ets the domicile of his mother. A foundling gets the domicile of origin of the
Country where it is found. During the minority of the child, it is incapable of
Acquiring a domicile of choice, but will be having the domicile of the person on
whom it is legally dependent. This is the domicile of dependence. In a vast
IMajority of cases, the domicile of dependence and the domicile of origin may be

the same, but it is possible that these may be different. If the father of a minor
changes his domicile, the new domicile is automatically communicated to the
minor. This new domicile is the domicile of dependence; his domicile of origin
always remains constant; it is the one given to him at the time of his birth. The
domicile of origin is unaffected by the changes occurring in the parent’s

domicile during the minority of the child. When the domicile of a minor is

changed as a result of change in his parent’s domicile or as a result of his oc

legitimation or adoption, the new domicile which the minor gets in this way is oe
the domicile of dependency and not the domicile of origin. Hence it is not this ed
domicile but the one which the minor acquired at the time of birth which is -|
capable of reviving in later life.
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If a child is born illegitimate and later legitimated, what is the position? cl
When legitimated, the child automatically acquires the domicile of his cf
father. But this is only the domicile of dependency, which the child gets from exif
the date of legitimation. Its domicile of origin continues to be that which was oi
communicated at the time of its birth, i.e., the domicile of its mother, assuming ~

that the domicile of the father and mother were different at the time of its birth.

Unity of domicilc between a minor and its parents

The domicile of dependence changes as the parent acquires a new

domicile. As between a living father and his legitimate child there is a
necessary unity of domicile, even though they may be residing in different
countries. This is often expressed as absolute rule, so that the unity cannot be
C.isrupted by the will of the father. This rule of unity of domicile was retained
€ven in cases where the parents were separated and were in different countries,
the child living with the mother. In such cases the minor’s domicile of
dependence changes with the change in his father’s domicile creating a lot of
hardships. To avoid this, the Domicile and Matrimonial Proceedings Act of
1973 has introduced changes in the above doctrine of Unity of domicile.
According to the Act where the parents are live, but living separate the child’s

Aomniicile will be that of the mother and no home with the father. But the child
loses the mother’s demicile, if the child changes home and lives with the father.
On doing so, the child again gets the domicile of the father. It is to be noted
that this statutory provision only relates to the domicile of dependence and
does not affect the domicile of origin of the child. Now what is the position, if
the father on the death of his wife leaves the children to the care of the
grandparents and goes out to another country and acquires a fresh domicile of
choice? Situations like this are not covered by the above statutory provision.
They are governed by common law rules according to which the children will
get the new domicile acquired by the father. The common law rule of the
unlimited capacity of the father to change the domicile of his minor child, has_

been described as the manifestation of parental authority and responsibility.

What is the effect of father’s death during the minority of the child?

The child acquires upon the death of his father, the domiciie of his
mother. Any new domicile which is subsequently acquired by the mother is
automatically communicated to the minor child as the new domicile of

dependence. It is necessary to affirm once again that the changes of domiciles

of the parent which are communicated to the minor child have nothing to do

with the child’s domicile of origin.

Lunatics

As with other children, an insane child also has a domicile of origin

Communicated at the time of birth. A mentally disordered person cannot
acquire a domicile of choice and, as a general rule, retains the domicile which
he or she had when becoming mentally incapable. Since such person cannot
exercise any will, he or she can neither acquire or lose a domicile; and nor can
the domicile be changed by a person taking charge of or caring for the mentally
} s isordered person. Precisely which persons are “mentally disordered” for the

Purpose is quite unclear. The cases were under long obsolete rules as to
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necessary for acquiring a domicile. Such persons would be domiciled in the
country with which they were for the time being most closely connected. When
that capacity was restored, they would retain the domicile held immediately

before it was restored, but could of course then acquire a new domicile under

the rules applying to adults generally.

Domicile of married women

Under English Common Law, the domicile of a married woman was the

same as and changed with the domicile of her husband. This rule was

considered as absolute admitting of no exceptions, whatever be the

circumstances. Historically, the rule was based upon the ancient maxim of the
common law that husband and wife were one and the same person in the eye
of law. The above rule of unity of domicile of husband and wife had been

subject to vigorous criticism. Lord Deving characterized this rule as “the last

barbarous relic of a wife’s servitude” (Gray v Formosa (1963)).

This rule has been abolished in England by section 1 of the Domicile and
Matrimonial Proceedings Act of 1973. This provides that the domicile of a
married woman at any time on or after January 1% 1974, “shall instead of
being the same as her husband’s by virtue only of marriage, be ascertained
with reference to the same factors as in the case of any other individual
capable of having an independent domicile”. The married woman retains her
. own domicile and is capable of acquiring a fresh domicile independent of that
of her Fusband during the subsistence of the marriage. Now there is no

distinction between a married woman and a married man as regards the

acquisition and loss of domicile.

Domicile of dependence — Indian law

The provisions of the Indian succession Act, 1925, broadly embody the

English principles and have been followed in India, even though they do not

apply to the preponderant majority of Indians.

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Indian decisions have also generaily followed the common law rules. In
State of Bihar v. kumar Amar Singh (AIR 1955 SC 282), it has been held that
the domicile of a wife remained Indian even though she had migrated to
Pakistan, as her husband remained in India. In Narasimharao.Y v venkata
lakshmi . Y, (1991) 3SCC 451) the Supreme Court has severely criticized the

common law rule about the domicile of married woman and described it as a

tyrannical and servile rule.

The Law Commission of India in its 65t report had recommended the
enactment of a law for the recognition of foreign divorces and separation

orders, a married woman should have an independent domicile.

JURISDICTION OF COURTS AND FOREIGN JUDGMENTS

Jurisdiction of courts under English law

Jurisdiction of English courts in commercial disputes under traditional

rules.

Whether an English court has power to hear a case in a matter which must
be decided according to principles of English law. However, the position is
complicated by the fact that there are now two scis of rules determining the
jurisdiction of English courts. In the majority of cases, jurisdiction is
governed by what may be called the new rules. These rules derive from the
Brussel Convention on Jurisdiction and the enforcement of judgments in
civil and commercial matters of 1968 and subsequent E C Conventions
based upon it. They apply to cases involving EEC / EFTA based defendants,
but only in civil and. commercial matters. In cases falling outside the scope

of the new rules, the jurisdiction of English courts is determined by what

may be called traditional or old rules.

Old rules

Where the defendant is not domiciled within the EEC/EFTA but present in
England, then jurisdiction in personam is assumed when the writ is served
on his person in case of an individual, on its principle place of business in
case of a corporation, o1 either on the individual partner present in England
or on the partnership firm in case of partnership. Where the defendant is
not present in England, the English court has [power to hear the case if he
voluntarily submits to the jurisdiction, or if the plaintiff obtains leave to

serve the writ on him outside the jurisdiction under order 11 R-1(1) of the
rules of the Supreme Court.

Order 11 R-1(1) provides for a multiplicity of instances under which leave of

the court may be obtained, The burden is on the plaintiff to show that the
dispute comes under any one of the heads provided in reference to an

individual, a writ maybe served on any individual who is present in England,

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however, short his visit maybe for instance- Maharani of Baroda v.

Wildenstein (1972),
Facts; the plaintiff, an Indian princess residing in France, brought an action
against a US art dealer, also residing in France , for breach of contract for

sale in France of a painting which turned out to be a forgery. The writ was

served on the defendant during a short visit to Ascot races.

The Court of Appeal held that the defendant had been properly served with a

writ and accordingly it had jurisdiction to hear the case.

Corporations
By virtue of Sec- [691 land 25 of the Company’s Act 1985, a corporation is

deemed present in England for the purpose of serving a writ in three

situations;

e A company registered in England is present here even if it only carries

on business abroad(S.725)
If the company is incorporated outside England but has a place of

business here (S.691)

If no such address is filed, or if the person named dies or for any

reason the writ cannot be served, the writ maybe served-on the
company by sending it to any place of business established by the
company in great Britain (S.695)

The above provisions give rise to the question of when a foreign

company is said to have established a place of business in England.

This question can only be answered by examining the activities of the

defendant company in England.

South India Shipping Corporation limited v. Export Import Bank of

korea (1985)
Facts: The plaintiff, a cempany incorporated in India brought a claim
against the defendant bank which was incorporated in korea where its

main business was conducted. However, the bank rented an office in

London for the purposes of gathering information and maintaining

public relations with other banking and financial institutions in the
United Kingdom and Europe. No banking transactions were concluded
from the London office, nor was the office registered as a place of

business under Companies Act, 1948 then in force. The writ was

served at the office in London.

e The defendant contended that as they had not established a

place of business in Great Britain the writ was not duly served.

e The court of appeal held that a company is said to have

established a place of business in great Britain if it carried on
part for its business activities here, and that it was not
necessary for those activities to either a substantial part of, or

more than incidental to, the main object of the company

Accordingly the defendant was duly served with the writ for it had
established a place of business here and it was immaterial that the

defendant did not conclude any banking transactions from the London office

nor has banking dealings with the general public.

Jurisdiction under the new rules

Where the defendant is domicile within the EEC/EFTA, the English court
must ignore the traditional rules and assume jurisdiction in accordance

with the provisions of either the Brussels Convention or the Lugano

Convention.

As a general basis of jurisdiction, the essential criteria is the domicile of the

defendant. The courts of the member state in which the defendant is

domiciled will have jurisdiction to entertain a dispute within the scope of the

conventions.

Alternative bases of jurisdiction are provided by virtue of the provisions on

special jurisdiction i.e. in relation to contract, tort, maintenance, matters

relating to insurance, consumer contracts, etc.

In such cases, the plaintiff is given the choice to bring his action either in

the courts of the member state where the defendant is domicile or in the

courts of the member state designated by these provisions.

This is so unless the provisions on exclusive jurisdiction under Article 16

come into operation. The effect of such basis of jurisdiction is that the
designated courts of the member state will have exclusive jurisdiction and
the courts of the defendant will have to decline jurisdiction. Such exclusive
jurisdiction applies in relation to issues of immovable property, companies

and associations, intellectual property, enforcement of judgements, etc.

Additionally and subject to Art. 16, further provisions for exclusive

jurisdiction apply in relation to jurisdiction agreements and defendant’s

submission to the jurisdiction of a member state other than that of his

domicile.

By virtue of Art. 18 of the convention, the courts of a contracting state

before whom a defendant enters an appearance shall have jurisdiction. This
is so, except where his appearance was solely to contest the jurisdiction, or
where another court has exclusive jurisdiction under Art. 16. However, by

only mentioning Art. 16, Art.18 seems to prevail over an agreement

conferring jurisdiction under Art. 17.

Jurisdiction within UK

Sec.16 of the Civil Jurisdiction and Judgements Act, 1982 allocates

jurisdiction within the UK. This is set out in Schedule 4 of the Act and it
applies a modified form of the provisions on jurisdiction in the Brussels

convention. According to Sec 16, the modified rules apply if the following

three conditions are satisfied:

e The issue must concern allocation of jurisdiction within the UK;

e The subject matter of the proceedings must be within the scope of the

1$68 Convention;
e The defendant must be domiciled in the UK, or the dispute must come

within the scpe of Art. 16 of the convention.

lt may be concluded that the rules relating to jurisdiction are numerous.

There are four different sets of rules under the Brussels/Lugano system, i.e.
the rules contained in the Brussels | regulation, the EC/Denmark
agreement, the Brussels convention and the Lugano Convention. There are
also rules contained in a modified version of Brussels I regulation(the
modified regulation) and traditional English ruies on jurisdiction. The rules

can be classified broadly as under-

Jurisdiction Under the Brussels/Lugano System
(A) The Brussels-I Regulation

In broad terms, the rules on jurisdiction contained in the Brussels I

Regulation apply where:

(a) The matter is within the scope of the Regulation ( a civil and
commercial matter) ; and-

(b) The defendant is domiciled in a European Community Member State,

apart from Denmark (i.e. in Austria, Beigium, The Czech Republic,
Finland, France, Hungary, Greece, Ireland, Italy, Portugal, Romania,
Netherlands, Spain, Sweden and UK). And even if the defendant is not
so domiciled, certain provisions in the regulation will still apply, eg.
Where the case involves title to land in a member state or where there
is an agreement conferring jurisdiction on the courts of a member

state.

(B) The EC/Denmark Agreement

In broad terms, the rules on jurisdiction contained in the EC/Denmark

Agreement apply where:

(a) The matter is within the scope of the Brussels I Regulation(a civil and

commercial matter)

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(b) The defendant is domiciled in Denmark. Even if the defendant is not
so domiciled, certain provisions in the regulation will still apply, eg.
Where the case involves title to land in Denmark or where there is an
agreement conferring jurisdiction on the courts of Denmark. The
EC/Denmark agreement applies by international law the provisions of

the Brussels I Regulation, with minor amendments.

(C)The Brussels Convention

In broad terms the rules on jurisdiction contained in the Brussels

Convention are applied where:

(a) The matter is within the scope of the convention(a civil and
commercial matter); and

(b) The defendant is domiciled in one of the territories of the contracting

states which fall within the territorial scope of the Brussels
Convention and are excluded from the Regulation. The territories in
question are (in relation to France) the French overseas territories,
such as Caledonia and Mayotte, and (in relation to Netherlands)
Aruba. Even if the defendant is not so domiciled, certain conventions
in the provision will apply, eg. where the case involves title to land in
one of the French overseas territories or Aruba, or where there is an

agreement conferring jurisdiction on the courts of one of the French

overseas territories or Aruba.

(ID)The Lugano Convention

In broad terms, the rules on jurisdiction contained in the Lugano

Convention are applied in the Uk and in European Community Member

State where:

(a) The matter is within the scope of the convention( a civil and

commercial matter); and

(b) The defendant is domiciled in an EFTA state (i.e. Ireland, Norway or

Switzerland). Even if the defendant is not so domiciled, certain

provisions in the convention will still apply, eg. where the case
involves title to land in an EFTA state or where there is an agreement
conferring jurisdiction on the courts of an EFTA state. Further, it is
also possible for non-EFTA/European Community states to become

parties to the convention. The terms of the Lugano Convention have

been aligned with those of the Brussels I Convention,

Prevention of Forum Shipping: Stays, Injunctions, Lis Alibipendens,

and Jurisdiction Clauses

Forum shopping can be defined as a “plaintiff by-passing his natural

forum and bringing his action in some alien forum which would give him

relief or benefits which would not be available to him in the natural

forum”. (Boys v Chaplin, 1971)

The impact of the English law rules on jurisdiction, whether in the

context of the old rules or the new rules, clearly allows plaintiffs to forum
shop. To circumvent this end under the older rules, English Courts have
been lent a discretionary power either to stay an action brought in the
English Court or restrain foreign proceedings when it is appropriate to do
so. This power tmaybe invoked on the grounds of the forum non

convenience, lis albi pendens or exclusive jurisdiction agreements.

(Section 49 ,3, Supreme Court Act, 1981)

Stays of English proceedings

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If the defendant has been properly served the,English court will proceed
with a case unless the defendant proves that England is not the natural

forum and that there is another available forum which is clearly and
distinctly more appropriate for the trial of the action. In such a case the

court will exercise its discretion to stay the proceedings.

In order for a stay to be granted the defendant has to base his request on

one of three grounds:

e« Firstly, although proceedings have not been commenced in a

foreign forum the defendant claims that the action ought to be

tried in the foreign forum rather than in England , that is ,

england is forum non convenience.

Secondly, the defendant applies for the English action to be stayed

because proceedings have already been instituted in the foreign
forum, that is, li alibi pendens

Thirdly, the defendant wishes the English action to be stayed

because the parties have agreed that disputes of the type are

subject to the exclusive jurisdiction of a particular country

Forum Non Convenience

The doctrine of forum non convenience whilst it has been applied in

Scotland and in the United States for a number of years has not been
accepted in England until recently. The English discretion to stay is now

indistinguishable from the Scottish doctrine of forum non convenience.

Spiliada Maritime Corporation v. Cansulex Ltd

The law was exhaustively considered and restated by the House of Lords in
this case, where lord Goff giving the unanimous judgment of the law lords
set out a number of principles on which the discretion should be exercised.
Mere, it is essential to note that the decision on the exercise of the discretion
is essentially one for the judge at the first instance, and an appellate court

Should not interfere merely because it would give different weight to the
factors involved.

The basic principle is that a stay will only be granted on the ground of forum
men convenience where the court is satisfied that there is some other
available forum having jurisdiction which is the appropriate forum for trial

of the action, that is in which the case maybe tried more suitably for the

interests of all the parties and the ends of justice.

‘This is the most important of the principles and sums up the whole basis of
the forum non conveniens discretion. Lord Goff, however, did lay down a
number of other subordinate principles which have been frequently followed.

He referred to a two stage enquiry. The first stage is concerned with whether
there is another available forum which is clearly more appropriate than the

t
English forum ; the second stage with the requirements of justice.

The spiliada test which states that a stay will only be granted on the ground
of forum non convenient where the defendant can prove that there is a more
appropriate forum where the action maybe tried more suitably for the
interests of all the parties and the ends of justice. Such factors as
convenience, availability of witnesses, the law governing the relevant

transaction, and the places where the parties reside or carried on business

are to be taken into consideration.

Depriving the plaintiff of a legitimate or juridical advantage would not, as a

general rule, deter the English court from granting a stay if it was satisfied

that substantial justice as between the parties would be obtained in the

natural forum.

Under the new rules the doctrine of forum non coneviens does not seem to

operate unless the conflict is between the court of a contracting state and

that of a non contracting state.

Re Harrods (Buenos Aires) Ltd (1991)

In this case an action was brought for inter alia, the winding up of an
English incorporated company. The company’s registered office was in
England but its business was carried on, and it was managed and controlled
exclusively in Argentina. The Brussels convention applied by virtue of the
company’s domicile in England. However the defendant argued that the
English proceedings should be stayed because Argentina was the most
appropriate forum for the trial of the action. He also claimed that article 2 of
the convention did not have a wide mandatory effect where the only conflict
was between the courts of a convention country and the courts of a non
convention country. The Court of Appeal unexpectedly upheld this argument
and granted a stay of the English proceedings. A fundamental distinction
was drawn between cases where the alternative forum was in a contracting

state and as the convention was intended and designed to regulate relations

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only between convention countries the court held that it retained its
discretion under section 49 of the 1982 act to stay or dismiss the actions on
the ground of forum non concenviens where the more appropriate forum
was in a non contracting state. This decision has been widely criticized for
having misinterpreted the convention and for creating uncertainty in the

law. (Cheshire and North, Private International Law)

Lis Alibi Pendens

in some instances proceedings between the same ‘parties arising out of the
same dispute are simultaneously pending in the English court and the
courts of another country. This is referred to as a case for lis alibi pendens.
Under the traditional rules the English court maybe asked either by the
defendant to the English proceedings to stay the action in England, or by
the plaintiff to the English proceedings to grant an injunction restraining the

foreign proceedings.

Where the defendant to the English proceedings applies for a stay on the
ground of lis alibi pendens, the English court, in addition to forum non
conveniens must take into account that declining to grant a stay will involve
more expense and inconvenience to the parties and may also lead to two

conflicting judgments. .

In cases where the concurrent proceedings are in the courts of the united
kingdom on one hand and the courts of another EC or EFTA state on the
other, the new rules give no discretion to a court to stay proceedings on the
ground of forum non conveniens or similar grounds. Article- 21 as redrafted
in the Lugano and San Sabastian conventions provides that in such cases “
any court other than the court first seized shall of its own motion stay its
proceedings until such time as the jurisdiction of the court first seized is
established”. Once the jurisdiction is established “ any court other than the
court first seized shall decline jurisdiction in favour of that court”. It should
be noted that while article 21 is limited to concurrent proceedings in

contracting state there is no requirement that either party should be

domiciled in a contracting state (Overseas Union Insurance Ltd v. New

Hampshire Insurance Company, 1992 ).

Article 22 of the convention allows a court to stay its proceedings where the
cause of action not the same but related is Spending in another state first
seized of the matter. By virtue of article 22 (3) “Related Proceedings” are
proceedings which are closely connected so that it is expedient to hear them
together to avoid the risk of irreccncilable judgments resulting from separate

proceedings.

Article-23 of the convention applies where two contracting states have

exclusive jurisdiction over the same case. The court first seized has

jurisdiction.
Foreign Jurisdiction Clauses

Where the parties have argued in a binding contract to submit their

disputes to a foreign jurisdiction, the English court will not in general allow
any of the parties to resile from their earlier agreed choice of jurisdiction. In
other words if one of the partners contrary to their agreement brought an
action to the English court then the proceedings will normally be stayed for
the English court will not in general allow a breach of contract. This is so

even if part of the agreement between the parties is void.

Trendtex Trading Corporation v. Credit Suisse (1981)

Where an assignment of a cause of action took place in Switzerland and the

agrecment included an exclusive jurisdiction clause ir. favour of the Swiss
courts, the house of lords granted a stay and held that although an
assignment of a cause of action is void in England as being against public
policy, this did not render the whole agreement void accordingly the choice
of jurisdiction clause was still von “So, for a stay to be refused in these
circumstances, the plaintiff will have to show that either the whole

agreement is void or that the jurisdiction clause itself is void.

Mackender v. Feldia (1967)

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Where a contract of insurance was made in London between the plaintiffs,
Lloyd’s underwriters, and the defendants, diamond merchants, the policy
contained an exclusive jurisdiction clause in favour of the Belgian courts
and was exclusively governed by Belgian law. Some diamonds were lost in
Italy and the plaintiffs refused”to pay and brought an action in the English
court claiming that the defendant had smuggled the diamonds into Italy,
and that the contract was void for illegally and voidable for the defendants
non — disclosure. Accordingly, the jurisdiction clause was also void. The
court of appeal. applied English domestic law and formed’ that non-
disclosure rendered a contract voidable and not void ab initio. Therefore the

jurisdiction clause was valid and a stay was granted.

Oral agreement on jurisdiction

Hamed El Chiaty v. Thomas Cook Ltd (1992)

It seems that an oral agreement on jurisdiction is as effective as a written

one.

Facts: The plaintiff, an Egyptian tourist company, contracted with the

defendants, an international travel company registered and based in>
England, to construct a cruise ship. In return the defendant agreed to
finance the vessel of the ship and to charter it for use on their package
tours. A series of written contracts were made whereby it was agreed that
the proper law of the contract was Egyptian, but they were silent as to the
choice of jurisdiction. The defendants claimed, however, that during
negotiations the parties had orally agreed that any disputes should be
Subject to the jurisdiction of the Egyptian courts. On the failure of the
defendants to supply the agreed minimum number of tourists, the plaintiffs
brought an action in the English court. Upholding the defendants argument,
Hirst — J held that the oral agreement on jurisdiction was valid amd

accordingly a stay was granted,

‘The English court has discretion to refuse a stay where parties have agre ed

to submit disputes to a foreign jurisdiction if the plaintiff can show that

justice cannot be obtained in the agreed forum. (Carvalho v. Hull Blyth

(Angola) Ltd. 1979) |

Where the parties have agreed to refer their disputes to the courts of a
Contracting state then their agreement is governed by Article 17 which was
significantly amended by both the San Sabastian and Lugano conventions.
Article 17(1) which was amended in identical terms, provides that if the
parties, one or more of whom is domiciled in a contracting state, have
agreed that a court or the courts of a contracting state are to have
jurisdiction to settle any disputes which have arisen or which may arise in
connection which a particular legal relationship, that court or those courts

shall have exclusive jurisdiction, provided that the jurisdiction clause is:

- In writing or evidenced in writing ; or

- In a form which accords with practices which the parties have

established between theinselves ( this provision was not in the
Brussels Convention ) ; or

- International trade or commerce in a form which accords with a usage

of which the parties are or ought to have been aware and which in
such trade or commerce is widely known to and regularly observed by
parties to the contract of the type involved particular trade or
commerce concerned (the words after aware in courts were added by
the San Sabastian and Lugano conventions). Similar provisions are
made for jurisdiction clauses in relation to trust instruments under
article 17(2).

Article 17(3) imposes two limitations on the agreement. The first

limitation applies in relation to article 16 of the convention to the effect
that a jurisdiction agreement shall have no legal force if it purports to
exclude the courts of contracting states which have exclusive jurisdiction
by virtue of article 16. In the words, article 16 is of an over writing
nature. Second limitation applies when the jurisdiction agreement in
contrary to provisions of article 12 or article 15. In such cases, the

agreement shall have no legal force.

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Two further qualifications on the effectiveness of jurisdiction clauses are

contained in article 17 (4) | and (5). If the jurisdiction agreement was
concluded for the benefit of only one of the parties, then by virtue of
article 17 (4), that party shall retain the right to bring proceedings in any
other court which has jurisdiction under the convention. So because the
agreement is only for the benefit of one party that party is given the right
to wave that benefit. Article 17 (5) is confined to matters relating to
individual contract of employment. This is a new qualification introduced
by the San Sabastian convention and Lugano convention, but alas in
slightly different terms. The agreement on jurisdiction will only have legal
force if jt is entered into after the dispute had arisen, or if it is invoked by
the employee as plaintiff in order to seize courts other than the court of
the defendants’ domicile or those courts specified in article 5 (1). The

latter alternative is only available under the san Sabastian convention.

A similar version article 17 contained in schedule 4 of the civil

jurisdiction and judgments act 1982, which deals with cases where the
defendant is domiciled within the UK omits the requirement that the

jurisdiction agreement must be in writing.

Restraining Foreign Proceedings

Where the appropriate forum is England and the plaintiff goes shopping
abroad, the defendant can apply for an injunction to restrain foreign
proceedings, and if the plaintiff declines to comply with he will be held in

contempt of court.

As a genvral rule the applicable test is that an injunction would be

granted if the proceedings in the foreign courts are vexations and
oppressive to the defendant and the injunctions would not unjustly
deprive the plaintiff advantages available to him in the foreign forum.
This seems so, unless the plaintiff's only remedy is available in that
forum. Under the new rules, the English court has held that an exclusive

Jurisdiction clause between parties under article 17 allows the court to

grant an injunction. (Continental Bank NA v. Akakos Compania Naviera

SA & Others 1994)

Recognition and Enforcement of Foreign Judgments

Introduction :

Due to the UK’s accession to both the Brussels and Lugano conventions,
there are currently two sets of rules in relation to recognition and
enforcement of foreign judgments depending on where the judgment in
question was rendered. If it was rendered within EC/EFTA States then
the issue would be exclusively governed by the Civil jurisdiction and
Judgments Act-Sch. IV 1982, 1991. However, if the judgment was
rendered outside the states, then the traditional common law rules, as

amended and reinforced by statute, would apply.

Before moving on to examine both sets of rules it is essential to know the

distinction between recognition and enforcement.

- Whilst a foreign judgment must be recognized before it can be

enforced, not every recognized judgment need to be enforced.
Recognition simply means that the English courts take note of the
result of the judgment. Hence, if English law recognizes a foreign
divorce decree, this simply means that it will consider the couple as
unmarried. However, there may be an order ancillary to such a decree
which may be capable of enforcernent, such as an order that the
husband should pay maintenance to the wife. It may be noted that
there are special rules on the recognition of foreign matrimonial
judgments.

Foreign judgments have been recognized and enforced by the English

courts since the 17 century. This was initially based on the ground
of comity. However, this theory has been superseded by the doctrine
of obligation which was stated in Schibsby v. Westenholz (1870) in the

following terms...’the true principle on which the judgments of fo.eign

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tribunals are enforced in England is .... that the judgment of a court of
competent jurisdiction over the defendant to pay the sum for which
judgment is given, which the courts in this country are bound to
enforce; and consequently that anything which negatives that duty, or
forms a legai excuse for not permitting it is a defence to the action’,
Since 1982, a plaintiff who has obtained a foreign judgment for a debt
can only bring an action in England for the debt and can no longer
bring fresh proceedings on the original cause of action. A plaintiff
seeking to enforce a foreign judgment in England may either sue on
the obligation created by the judgment, or plead the judgment Res
Judicata in proceedings which raise the same issue.

Under the administration of justice act 1920, a person who obtained a

judgment in any part of the commonwealth may apply to the high
court to have the judgment registered. Registration is however,
discretionary.

Under the foreign judgments (reciprocal enforcements) act 1933,

registration of a foreign judgment in England is as of right and not
discretionary, and the successful litigant can make his application at
any time within six years.

Requirements under the old rules:

The foreign court must have been jurisdictionally competent to try the
action. Competence is tested in the context of residence of the
defendant in, and/or his submission to, the foreign court.

Where the plaintiff seeks enforcement at common lew or under the

1933 act rather than mere recognition, the judgment must be for a
fixed sum of money, final and conclusive, and not rendered in matters

of foreign revenue, penal or other public laws, provided that it is not

inconsistence with the provisions of the protection of Trading Interests
Act, 1980. One main distinguishing feature, however, under the 1920
act is that the judgment must have been rendered by a superior court.
Defences:

The defences which may be raised by the deferdant against the

enforcement of a foreign judgment are fraud, public policy, natural

justice, and breach of section 32 CJJA 1982. This section does not
affect judgments required to be enforced and recognized under either

Brussels or Lugano conventions.

EC/EFTA Judgments

The provisions of the conventions apply to any judgment given by a

court or tribunal of contracting state, regardless of whether or not the
defendant is domiciled in a contracting state, incliding injunctions,
specific performance, writs of executions, etc and provided that the
judgment was not made ex parte.

A judgment given in a contracting state must be recognized in all

other contracting states without any special procedures required. In
relation to enforcement, however, such a judgment must be enforced
in another contracting state when, on the application of any interested

party, it has been declared enforceable there.

Mechanism for enforcement

The procedure for the enforcement of judgments in the Uk is a two

stage process. First, the plaintiff makes an ex parte application for an
order of enforcement. At this stage, the defendant does not have the
right to be heard. Secondly, once the judgment is authorized, notice of
registration is served on the defendant who has right to appeal.
Defences

Art 27 & 28 of the Brussels convention provide for a number of

defences , if any of them is established , then the judgment will not be
recognized . As recognition is prerequisite for enforcement. Article 34
expressly states that these defences apply equally to enforcement. A
defendant may raise one or more seven defences, such as public
policy, non-reconciliation , lack of jurisdiction etc . A further four
defences may be invoked where the judgment is sought to be enforced

within EFTA states

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Recognition and Enforcement within UK

A judgment rendered in one part of the UK may be enforced in another

part if it meets the requirements of Section 18 of the 1982 Act.
Enforcement can only be made by the way of registration under
Schedule 6 of the Act (for money judgements) or Schedule 7(for non-
money judgements). Section 18 initially defines “Judgment “in a wide
manner and then gives a detailed list of the judgment it does not

cover. Section 19 applies in relation to recognition of judgments within

the UK.
Jurisdiction- Indian Law

In India the Code of Civil Procedure 1908 contains detailed provisions laying down
as to when &
court has, or does not have jurisdiction. It is not, therefore, absolutely
necessary to consider the
rules at common law, as applied in England. A reference is, however, made to these
rules, where
appropriate, as the provisions of the Code are based on the Common Law and as many
Indian

decisions refers to the decisions of English Courts.

Issues pertaining to Conflict of Laws arise in the comparatively few cases in which
a suit has a
foreign element, namely, whether and when foreigners and foreign corporations can
sue, or be

sued in an Indian court, and who enjoy immunity from suits.

A. question which also arises in a situation when an Indian court having

jurisdiction will decline
to exercise it, for example, if parties have, under their contract, agreed that all
disputes between
them will be resolved by arbitration, or that any suit which may be filed musi be
filed in a
specific foreign court. There are also occasions when a court may conclude that in
the
circumstances of that particular case, the dispute should be resolved in a foreign
court by

applying the rule known as the forum non conveniens rule.

Suits by Enemy Aliens

The only persons who cannot adopt proceeding in.an English Court are enemy aliens,
In India
the position is regulated by Section 83 of CPC 1908, which is based on the
principles of
Common Law. Alien enemies residing in India or outside India have to take the
permission from
the Government of India to file a suit. The explanation to the section provides
that every person
residing in foreign country the government of which is at war with India, and
carrying on
business in that country without a license from the Government of India is to be
deemed, for the
purpose of this section to be an alien enemy. An alien enemy can, however defend a
suit.
Because, section 83 only bans alicn enemies from invoking the jurisdiction of the
court, and
there is no provision in the Code which bans such persons from defending suits
filed against

them.

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Who is an alien enemy?

What has to be considered is whether the plaintiff was an alien enemy when the suit
was

instituted, and if he was not, the suit is maintainable and can be heard when if he
subsequently
becomes an enemy alien.( Prem Pratap v. Jagat Pratap Kunwar AIR 1944 All 97, Feroza
Begum
v. Dewan Daulat Rai Kapoor AIRI975 Del 1.)

If a plaintiff becomes an enemy alien during the pendency of the suit and his
property vested in
the custcdian of Enemy Property, the suit did not abate (S.N. Banerjee v. B.C.
Chakraborty AIR
1976 Cal 267). An enemy alien who is permitted by the Government of India to stay
in India can
file a suit. (Angelina Reiffsteck v. Joseph George Reiffsteck (1917) ILR 39 All
377).

Immunity from Suits ©

In International Law foreign states are immune from being proceeded against in the
municipal

courts of other countries. In this regard the following are International

Conventions:

a) United Nations Convention on Privileges and Immunity of the United Nations

(1946).

b) Vienna Convention on Diplomatic Relations (1946).

These Conventions provide for immunity to the United Nations and its agencies and
diplomats.

In India the question is governed entirely by statutes, namely, S. 86 of the CPC

(1908), the
__ United Nations (Privilege and Immunities) Act, 1947 and the Diplomatic Relations
(Vienna
= Convention) Act, 1972. The 1947 Act confers immunity from suits to the United
Nations and its
agencies such as the World Health Organization (WHO) and some of its personnel (in
respect of
official acts). Under the Diplomatic Relations (Vienna Convention) Act, 1972 gives
statutory
_ effect in India to the Convention, under which specified diplomats enjoy immunity
from suits in
India.
4 The principle provision is, however, S. 86 of the CPC 1908, which enacts the
principles cf

E. International Law relating to sovereign immunity in a modified form.

S. 86 (1) as originally enacted, conferred immunity from suits to foreign rulers

and “chiefs” of
__ Indian states, and provided that they could not be sued without the consent of
goverment of
4 India. The word “ruler” also applied to Heads of State in a Republic. (Mirza Ali
Akbar Kashavi v.
"United Arab Republic AIR. 1966 SC 230)
}
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S. 86 as it stands today, provides as under -

‘No foreign state may be sued in any court otherwise competent to try the suit
except with the

consent of the Central Government certified in writing by a Secretary to that

Government :

Provided that a person may, as a tenant of immovable property, sue without such
consent as

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aforesaid a foreign state from which he holds or claims to hold the property.’

c&

S. 86(2) sets out the factors to be taken into consideration by the Central
Government in granting ce

consent. S. 86(3) provides that except with the consent of the Central Government,
no decree cau o
be executed against the property of any foreign state. The same immunity is
conferred to rulers |

of foreign states, ambassaders, high commissioners and specified diplomatic

personnel {86(4)}.

| co

No ruler of a foreign state or ambassadors or high Commissioners or specified

diplomats can be ya

arrested under the CPC {86(5)}. Ge

Suits by and against rulers of a foreign state should be in the name of the foreign
state. (S. 87). o

e~

‘Foreign state’ means a state recognized by the Central Government and ‘ruler’
means the person

i.

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so recognized by the central Government; and a court must take judicial notice of
the facts that a

foreign state or the ruler, has or has not, been recognized by the Central
Government (S. 87-A).

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/

Section 86 shall not apply in cases of application of speciai enactments like

Carriage by Air Act
1972.

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Jurisdiction - General Provisions

In International Law, courts of any country have jurisdiction over property

situated within the

country and over persons who are citizens of that country or domiciled there, who
owe allegiance

to that country. ‘
Ge
Suits Relating to Immovable Property ce
Section 16 provides that suits for the possession of immovable property or the
partition of
immovable property or the partition of immovable property, or relating to the
mortgage of such ce
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property, or relating to the mortgage of such property, or for wrongs to such

property, casa be

2219097
filed in the court within whose jurisdiction the property is situated. Property in
this section means

property situated in India.

The only exception to this rule, which may have the effect of enabling a suit to be
filed in respect
of foreign immovable property, is in cases where a person holds property on behalf
of another,
and relief can be obtained through the personal obedience of the defendant. The
suit can be filed
in the court within whose jurisdiction the property is situated, or the defendant
actually and

voluntarily resides or carries on business or personally works for gain.

All other suits can be filed within whose jurisdiction, the defendant or some of
the defendants

actually and voluntarily reside or carry on business or personally work for gain,
or the cause of

action wholly or in part, has arisen.

If one or more of the defendants do not reside or carry on business within

jurisdiction, the swit
can only be filed against such defendants either if the court grants leave or such
defendant

submits to jurisdiction. (Section -20)

Corporations

A corporation is deemed to carry on business at its sole or principle office in

India, or in respect

of a cause of action arising in any place where it has a subordinate office at such
place.

A company incorporated outside India which has established a palace of business in

India is
required to file with the Registrar of Companies, the name of a person and address
where process
can be served on it, and service can be effected on such person and at such place.
{Section-
592(1)(d)The Companies Act, 1956}

If, in applying these rules, if it is necessary to serve a defendant not within the
jurisdiction of the
Court, the provisions of the Code permit service outside such jurisdiction and even
outside India.
(Order V CPC) Service abroad can also be effected through a specified authority in
a foreign
country if the country has been notified by the Central Government. (O V R 26A).
Under Section
29, Code of Civil Procedure 1908, Indian Courts must effect service of summons
issued by a
foreign Court as if it is that of an Indian Court; this section applies to the
countries party to the
Hague Convention on Service Abroad 1965. (Notification of the Central Government
dated 28

November 2008).
Special Provision — Jurisdiction

Apart from the Code of Civil Procedure 1908, certain statutes enact special rules
relating to
jurisdiction in specified cases. Such special provisions relate to admiralty
matters, international

carriage by air ad matrimonial matters.

Admirality Jurisdiction

The Letters Patent of the Chartered High Courts of Bombay, Calcutta and Madras,
which were
the successors of the old Supreme Court in these cities, and which. exercised
original civil

jurisdiction, conferred on those High Courts the admiralty jurisdiction in rem

exercised by

English Court of Admiralty.

The question whether at present High Courts possess admiralty jurisdiction has now
been
concluded by decision of Superme Court in M V Elisabeth Vs. Harwan Investment and
Trading
Pvt. Ltd. Goa (AIR 1993 SC 1014), which held that all High Courts in India were
Superior
Courts of Record having original and appellate jurisdiction, and have inherent and
plenary
powers. It held that “Unless expressly or impliedly barred, and subject to the
appellate or
discretionary jurisdiction of this Court, the High Courts have unlimited
jurisdiction, including the
jurisdiction to determine their own powers.” The Court relied upon its earlier
judgment, Naresh
Shridhana Mirajakar V State of Maharashtra (AIR 1967 £C 17). The mode of proceeding
in
admiralty matters is regulated by rules made by the Courts. The usual procedure is
to apply for

the assert of a ship, or its cargo and the proceeds of the sale of a ship or cargo,
within the

jurisdiction of the Court.

International Carriage by Air

The Carriage by Air Act 1972, gives statutory force in India to the Warsaw
Convention and the
Hague Protocol relating to international carriage by air. International Carriage
means carriage

between two countries who are signatories to the Convention with or without a stop
during the

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journey, and also covers a situation if such stop is in a country which is not a
signatory to the

Convention.

An action for damages against a carrier has to be filed at the option of the
plaintiff either where
the carrier is ordinarily resident or has his principal place of business or has an
establishment
where the contract was made, or at the place of destination. If there has been a
successive
carriage, unless the first carrier has expressed assumed liability, the suit can
only be filled against

the carrier who performed the carriage during which the accident delay occurred.

Guardianship Proceedings

Under the Guardians and Wards Act 1890, an application for the appointment of a
guardian of
the person of the minor can be made in the Court within whose jurisdiction the
minor ordinarily
resides, and in the case of the appointment of the guardian of the property of
minor, either in the
Court within whose jurisdiction the property is situated or the minor resides (S.9
of the Act). The

same rules will apply in the cases of Hindus.

Matrimonial Matters

In India different laws apply to marriage and divorce depending upon the religion
of the person,
and Courts exercise jurisdiction to grant matrimonial relief in accordance with the
provisions of

the applicable law.

Restraining Foreign Proceedings

Indian Courts undoubtedly have jurisdiction, if the defendant is within

jurisdiction, to restrain
him from filing or continuing proceedings in foreign Courts. Although the Indian
Court cannot
directly compel compliance with any such order, it can @nsure compliance by
proceeding against
the defendant in contempt if he violates the order. A Court would, however, only do
so if it came
to the conclusion that proceedings in the foreign Court were vexatious or
oppressive and would
not do so if the proceedings could be better conducted in a foreign Court. It,
would, in
appropriate cases, stay suits within jurisdiction in an Indian Court if it came to
the conclusion
that proceeding in the foreign court would better serve the ends of justice. This
was done in some

cases by the High Courts.

a a ae ~
7

In Oil and Natural Gas Commission vy Western Co. of North America (AIR 1987 SC 674)
the
Superme Court restrained an American company from proceeding with a suit filed in
New York
seeking to confirm awards made in India in a dispute governed by Indian law, as
Indian Courts
had exclusive jurisdiction to consider the validity of such awards under the
Arbitration Act 1940.
The Superme Court reiterated the position in a later judgment (Modi Entertainment
Network v
WSG Cricket Pte Ltd. AIR 2003 SC 1177) iaid down the approach of the Court in such
cases as

under:

Wee
“The essence of the ultimate objectica is to enquire how best the interests of
justice will be

served; whether grant of the auto suit injunction is necessary in the interests of
justice.”

The basic approach of the Court is to ensure justice. The Court was considering a
matter where
the parties had agreed that disputes that may arise between them would be decided
by a chosen
court and the observation, though made in that context, are, it is submitted,
relevant in

determining when a Court ought to stay Indian proceedings on the ground of forum
non

conveniens.
The court laid down the rules as under:
The court will grant anti-suit injunction bearing in mind the following
principles:-

1. The defendant against whom injunction is sought, must be amenable to the

personal

jurisdiction of the court;

2. Ifthe injunction is declined, the ends of justice would be defeated and

injustice would be

perpetrated; and

3. The principle of comity- respect for the court in which ihe commencement or

continuance of action/ proceeding is sought to be restrained- must be borne in

mind.

4. Inacase where more forums than one are available, the court in exercise of its
discretion
to grant anti-suit injunction will examine as to which is the more appropriate
forum
(forum conveniens) having regard to the convenience of the parties and may grant
anti-

suit injunction in regard to the proceedings which are oppressive or vexatous or

forum

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non Conveniens (Modi Entertainment Network v WSG Cricket Pte Ltd, AIR 2003 S
1177).

No question can arise of exercising the forum non conveniens principle can arise
unless the

necessary facts are properly pleaded. (Mayate (HK) Ltd v Oungs and Parties, Vessel
M™

Fortune Express AIR 2006 SC 1828).

These rules laid down by the Supreme Court after considering the decisions in
England and

cther Common Law Countries are the rules that Indian Courts will apply in both
forum non

Conveniens and in anti-suit injunction situations.

Stay of Suits because of Forum Selection

As far as cases where parties have agreed that any disputes that may arise between
them will be
resolved by the courts of a particular country are concerned, the law has now in
India been

settled.

Agreements to refer any dispute that may arise to the courts of a country to which
one of the
parties belongs, or the courts of a third or ‘neutral country’, are valid as they
do not violate either
sections 23 or 28 of the Indian Contract Act, 1872; the rules of the CPC 1908 and
the principle
that parties cannot by consent confer jurisdiction on a court which does not have
jurisdiction, do
"not apply to courts outside India.

If the dispute relates to a contract, and the contract contains a clause providing
that disputes that
may arise will be decided by a specified court, the approach of the court wili
depend on wheilaer

such a specified court is specified as the court with exclusive jurisdiction or

not.

In a number of cases, the High Courts held that even if the clause conferred
exclusive
jurisdiction on a foreign ccurt, the Indian court retained a discretion to decide
whether it would
stay the proceedings in India, and the factors it would consider were essentially
whether the court
an India would, on balance, be a more or less Convenient court. In Modi
Entertainment Network
case, the Supreme Court has reviewed the law and the latest decisions in England
and other

Common law countries, and laid down the applicable principles.

Where jurisdiction of a court is invoked on the basis of juridcition clause in a
contract, the basis
of jurisdiction clause in a contract, the recitals therein , in regard to the
exclusive or non-
exclusive jurisdiction of the court of the choice of the parties, are not
determinative but relevant
factors, and when a question as to the nature of jurisdiction agreed to between the
parties arises,
the court has to decide the same on a true interpretation of the contract on the
facts and in the

circumstances of each case.

A court of natural jurisdiction will not ordinarily refuse to grant an anti-suit

injunction against a
defendant before it where parties have agreed to submit to the exclusive
jurisdiction of a court
including a foreign court, a forum of their choice in regard to the commencement or
continuance
of proceedings in the court of choice, save in exceptional cases for good and
sufficient reasons,
with a view to prevent injustice in circumstances such as which permit a
contracting party to be
relieved of the burden of the contract; or since the date of the contract the
circumstances or
subsequent events have made it impossible for the party seeking injunction to
prosecute the
case in the court of their choice because the essence of the jurisdiction does not
exist or because

of a vis major or face majeure and the like.

The burden of establishing that the forum of choice is a forum non conveniens or
the proceedings
therein are oppressive or vexatious, would be on the party so contending to aver
and prove the
same. {Unique Pharmaceutical Laboratories Ltd v State Freight International Co
(LLCO (2005)
6 Bom CR 829}. .

The rules regarding jurisdiction clauses apply of course, only to disputes under
the contract.
Proceedings under the MRTP Act, 1969, cannot be stayed because of a jurisdiction
clause in a
contract which contract is alleged to offend the provisions of the Act. {Man Roland
Drucki
macl inen AG v Multicolour Offset Ltd AIR 2004 SC 3344}

Recognition and Enforcement of Foreign Judgments: Indian Law

Section13 and 14 of the CPC 1908, deal with the enforcement of foreign judgments,
section 44A
deals with the execution of some foreign judgments and section 41 of the Indian
Evidence Act,

1872, deals with the effect of judgments in rem.

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Section 13: A foreign judgment is conclusive as to any matter directly decided in
it between the

same parties or parties claiming under them except where the judgment:

(1) Has not been pronounced by a court of competent jurisdiction;

(2) Has not been given on the merits of the case

(3) Where, on the face of it, it is founded on an incorrect view of international

law or a

refusal to recognize (where it is applicable) Indian law;

(4) Where it was delivered in proceedings which were opposed to natural justice;

(5) Has been obtained by fraud; or

(6) Sustains a claim founded on a breach of Indian law.

If a certified copy of the judgment is produced, it will be presumed that the

judgment has
been pronounced by a court of competent jurisdiction unless the contrary is
established from
the record, or it is established that the court had no jurisdiction. Secticnl4 says
that a
judgment would be a public document within the meaning of the expression in the
Indian
“Evidence Act, 1872. The usual method of producing a certified copy w/s 78 of that
Act would

be to have it certified by the appropriate officer of the court, along with a

certificate of an
officer of the Central Goverment as required u/s 86.

Section 444A

Under this section, the decrees of foreign courts which can be executed are the
decrees of
superior courts of a ‘reciprocating territory’ ‘as if it is the decree of the court
executing the
decree. ‘Reciprocating territories’ means territories notified to be as such by the
Central
Government and means decrees of courts in countries which on a reciprocal basis,
execute
the decrees of Indian courts. Most countries of the Cominonwealth have been so
notified. In

any such execution, the defences available under sectionl13 are available to resist
the
execution of the decree.
a

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Section 41 of Indian Evidence Act, 1872 / Judgments in rem :-

It is one of group of sections providing where a judgment of a court is relevant

evidence in
other civil proceedings. It deals with judgments in rem, that is, a judgment of a
competent
court which confers upon any person any legal character, or which declares any
person to be
entitled to any specific thing, not as against any specified person but absolutely;
such

judgments are relevant when the existence of any such legal character, or the title
of any such
person to any such thing is in issue.

This section has to be read with section 44, which provides that a judgment would
not be

conclusive w/s 45 if it was shown that the court which delivered it was not a
competent court,
or that it had been obtained by fraud or collusion.

The mode of giving efficacy to a foreign judgment is to file a civil suit based on
the

judgment, except in few cases where ws 44A of CPC 1908, a foreign judgment can be
executed on the basis of reciprocity.

A foreign judgment cannot be impeached by a third party. For example, a person who
married ‘X’ could not contend that an earlier order of an American court divorcing
X from

her then husband was not enforceable. (Deva Prasad Reddy v Kamini Reddy AIR 2002
Kant
356).

A decision of French regulating authoritics which is not the result of an

adjudicating process

cannot be enforced as a judgment. ( Technip SA v SMS Holding Pvt Ltd (2005)5 SCC
465) .

An interlocutory order of a foreign court awarding temporary custody of a minor to

the father

is not a foreign judgment which can be enforced u/s 13. (Ramakrishna

Balasubramaniam v
Ms Priya Ganesan AIR. 2007 Mad 10).

It is the adjudication of the suit that can be enforced, not the reasons given for
adjudication.
(Brijlal Ramjidas v Govindram Gordhandas Seksaria AIR 1947 PC 192)

The only defences to a suit on a foreign judgment were those set out in section 13,
and if

those defences are not attracted, the judgment should be enforced. ( Roshanlal
Kuthalia vy RB
Mohan Singh Oberci AIR 1975 SC 824)

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These observations have to be read in the context; the general rule excluding the
enforcement

of certain claims based on foreign penal or revenue laws would, of course, be

applied if the

rules are attracted; likewise judgments opposed to public policy would not be
enforced.

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Law of Property

Where the immovable property is situated outside the

EC/EFTA States, the old traditional rules apply to the effect
that English courts have no jurisdiction to try a.1 action for the
determination of title to, or the 1ight to possession of, any
immovable property situated outside England irrespective of
the parties domicile and residence. Such an action must be
tried in the courts of the lex sift's.

This rule is subject to s 30 CJJA 1982 whereby English

~ courts have jurisdiction to entertain proceedings for trespass

to, or any other tort affecting, immovable property situated

outside England.

Two exceptions to this rule are applicable in relation to tiie

enforcement of a personal obligation to the plaintiff and in
relation to tiie administration of trusts or esta‘ ’s in England. In
such cases, English courts have the power to try the action

tnough the property is situated outci te E> sian.

Where the immovable’prozerty is situated witnin the

EC/EFTA States, Article 16 of the Conventions allocates
exclusive jurisdicticii to the courts of the place where the
property is situated.

This exclusive jurisdiction coes rot, however, cover

disputes which have as their object tenancies of immovable

property concluded for temporaty use for a maximum period |

of six corsecutive months. In such instances and subject to

some qualifications, the courts of the (Contracting State in
which the defeadant is domiciled shall also have jurisdiction.

As a general rule, the law of the place where the property is

situated determines questions of both formal and essential
validity of transactions relating to inamovable property.

The lex situs means the whole of that law including its
conflict of laws. Therefore the doctrine of renvoi operates in
this context.

Unless a person has capacity to transfer or to take

immovable property by the law of the place where the
property is situated, the transfer v. iil not be valid.

relates to the obligations of the parties under

Here the quescion

f whicn is to transfer immovable

a contract, the object o

property.

Immovable pro erty |

jurisdiction under the |
old rules Cc

Jurisdiction under theo

newruales |

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Choice of Law in Tort

Where a tort is found to have been committed in England,

English law applies, and where it is found to have been
committed abroad, the rule in Phillips v Eyre applies.

English courts, when determining the place of tort in the

choice of law context, have applied the same basic test used in
relation to the old Order 11 r 1(1)(h) on jurisdiction, which is
the question of where in substance the cause of action arose.

In relation to negligence, the test has been applied in

various ways to the effect that a tort was held to inave been
committed in the place where the goods were manufactured,
or where they were marketed without adequate warnings.

In relation to defamation, the tort has been held to be

committed in the country where the statement was published.

As for fraudulent misrevrescntation made by

in. tantaneois communications, the tort has keen held to be
committed in the place where the message was received and
acted upon.

Tn the context of inducing a breach of contract, the tort was

said to have been committed in the place where th2 breach of
contract and the resulting damage occurred.

Where a tort is committed abrocd, the double-actionability :

rule applies, ie the act must be actionable in England, and it

must rot have been justifieole by the law of the place where it
was committed.

The second limb of the rule was subsequently modified to

the effect ihat the tort raust also be civilly actionable in the
place where it was committed.

An exception to the general rule seems to have been

adopted in favour of the application of the proper law of tort,
though great uncertainty surrounds its nature and extent.

For the rule to apply, the tort must be actionable against the
same defendant in both jurisdictions.

Equally, the plaintiff must be tne same in both

jurisdictions.

In relation to contractual defer. es against claims in tort, the

Jaw is far from clear and settled. Such de‘ences may sometimes
be used so as to negate liability in ‘ort.

‘Place of tort

Tue tale in Phillips v

Eyre

Scope of the double-

actionability rule
‘eform

Certainty, clarity and justice were the main reasons for calls for
reform.

In 1984, the Law Commission published its Consultation Paper

No 87, whereby recommendations as to reform were
proposed. The main proposal was that the first of the rule
should be abolished and from that stemmed two possible
models for reform.

Model 1 provides that, as a general rule, the applicable law

is the law of the country wher the tort was committed, and an
exception in favour of the proper law.

Model 2 provides for the proper law of the tort as the basic
tule, ie the law of the country where the tort and the parties
had the closest and most real connection at the time of the
occurrence of the tort.

These recommendations were re-examined by the Law

Commission in their Report No 193, where a modified version
of Model 1 was proposed. If adopted it will pron:ote
uniformity and disccurage forum chopping.

Under the modied prov coal, in case cf peesonal injary or

damage to property the applicable law is the law of the place
where the person or property was when injury or damage
accrued. In case of death, it is the law of the place where the
deceased was when the fatal injury was inflicted. In all other
cases, the applicable law is the law of the territory in which the
most significant elements in the sequence of events occurred,

As an exception, the applicable law is the law cf the place

with which the tort has the most substantial connection.
Marriage

Where one of the pariies does not voluntarily consent to the _Meaning and
marriage, the marviage will be declared invatid. definition

The union must be of one biological man and one

biological woman, otherwise it will be void.

Polygamous marriages when celebrated in a country which Polygamy

allows polygamy have come to be recognised in English law
for most purposes, such as matrimonial relief, proprietary

| rights arising out of a contractual claim, legitimacy of children,

"social security, and succession.

A potentially polygamous marriage can become monogamous Change in the lature

on the happening of an event, such as the birth of a child, of the marriage
where subsequent legislation which prohibits polygamy is
adopted in the country of the place of celebration; where the
polygamous ceremony was fulic.ved vy a monogamous
cere_nony; or where the husband to a potentially polygamous
marriage acquires a domicile in a country which does not
permit polygamy.
Where a marriage was celebrated in a polygamous form,
but neither party can under their personal law take another
spouse, then the marriage will be regarded as monogamous.

As a general rule, capacity to marry is governed by the ante- | Capacity to marry

nuptial domicile of each of the parties immediately before the
marriage.

Three exceptions have been adop‘ed:

° The validity of a marriage celebrated in England between

persons of whom the one has an English, and the other a
foreign, domicile is not affected by any incapacity which,
though existing under the law of such foreign domicile,
does not exist under the law of England.

¢ Where the validity of a divorce or annulment is recognised

in England, the fact that such divorce or annulment is not
recognised elsewhere will not preclude either party to the
marriage from re-marrying in England or cause the re-
marriage of either party to be treated as invalid.

¢ Where the prohibition on re-marriage in the country of

domicile is penal in nature, then the English court will
ignore it.
Formal validity of
marriage

Characterisation

The incidental
question

As a general rule, this is determined by the law of place of

celebration, but subject to three exceptions:

® consular marriages;

2 marriages of members of the British forces serving abroad;

* common law marriages.

The general rule is that characterising the relevant issue is

subject to English law.

Capacity to marry is characterised as an issue cf essential

validity, and is therefore subject to the dual-domicile rule,
whereas the form of the marriage ceremony is characterised as
an issue of formality, and is therefore subject to the law of the

. place of celebration.

Controversy, however, surrounds the issue of lack of

~ parental consent. Case law seems to classify such an issue as

one of form.

The examination of case law illustrates that the incidental

question does not attract 2 mechanical rule. Each case is
decided on its own facts.

TT ET? T YT TTS?

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i
Matrimonial Causes and Financial
Relief

The English court will have jurisdiction to entertain

Proceedings for divorce or judicial separation if either of the
parties to the marriage were domiciled or habitually resident
in England at tie time cf the proceedings.

A mandatory stay has to be granted by the English court if it

appears that proceedings for divorce or nullity in respect of the
Same Marriage are pending elsewhere in the British Isles; the
parties to the marriage have co-habited after its celebration; the
place of residence at the date of those proceedings was that of
other jurisdiction than in the British Isles; and either party was
habitually resident in that jurisdiction for one year ending with
the date on which they last resided there together.

A discretionary stay may be granted by the English court

Where it appears that any matrimonial proceedings capable of
affecting the validity of the mariage in question are pending
in another jurisdiction. The applicable test is that of the
Spiliada.

Neither divorce nor judicial separation proceedings provoke a

choice of law question. English courts have always applied
English law.

An English court has jurisdiction to entertain proceedings for

nullity, if either party was habitually resident for one year or
domiciled in England, or if either of the parties died before
that date and eithe: was at death domiciled in England or had
been habitually resident for one year ending with the date of
the death.

A nullity decree may declare a marriage either void or

voidable.

The applicable law in nullity suits depends on the

classification of the relevant issue, ie whether it is an issue of
formal validity or an issue of essential validity.

Lack of parental consent has been ciassified as an issue of

form.

In relation to defects affecting consent, such as fraud,

duress, mental illness, and so forth, the weight of judicial

Jurisdiction in divorce
and legal separation

Stay of the
proceedings

Choice of law
Jurisdiction in nullity

Choice of law
<ecognition of foreign
livorces, legal
eparations and
nnulments

ecognition of extra-
idicial divorces

rounds for non-

cognition

raancia) relief after

rerseaS Gecrees

opinion seems to favour reference of the issue of consent as

one of essential validity, and therefore subject to the law of
domicile.

In relation to physical defects or incapacity, the position is

unclear. Such defects have been classified as issues of form in
some instances, and as issues of capacity in others.

Where a decree is granted elsewhere within the British Isles, it

will be recognised unless not granted by a court.

Where a decree is granted elsewhere by means of

proceedings, it shall be recognised in England if it is effective
under the law where it was obtained and at the relevant time
either of the parties to the marriage was habitually resident,
domiciled or a national of that country.

An extra-judicial divorce, if pronounced in England, will not

be recognised by English courts.

If, on the other hand, it was granted abroad, then it wiil be

recognised if it is effective under the law of the country where
it was obtained and at that date, each party to the marriage
was domiciled in tuat country, or either party was dorriciled
in that country and the other was domiciled in a country
which recognises such decree, provided that neither party was
habitually resident in the UK for one year immediately
preceding that date.

A foreign decree may be refused recognition on policy

grounds, such as want of proper notice, want of opportunity to
take part, the absence of an official document, or contrary to

' public policy.

Where the foreign decree is entitled to be recognised in

England, either party to the marriage may apply to the court
for an order for financial relief under the Matrimonial and
Family Proceedings Act 1984, provided that either party to the
marriage was habitually resident in England for one year
ending with the date of the application; domiciled in England;
or had a beneficial interest in property situated in England.
Prior to making the order, the court must consider all the
relevant circumstances o: the case and be satisfied that it
would be appropriat2 to make such an order.
Choice of Law in Contract

Where the parties have made an express choice of law

provision in their contract, this will normally be upheld
provided it is made bona fide and legal unless it is against
public policy or unless this lav7 was chosen to evade the
provisions of an applicable lav.

Where the parties have not chosen a law but a forum, there
taay be strong indications to apply the law of that forum
unless the contract is closely conr.ected with another law.

In the absence of aiy choice ef law or forum, the Englisn

court applies the proper law of the co:.tract, ie the law with
which the contract has its closest and most real connection.

If the dispute relates to the formation of the contract, ‘I:

court applies the putative proper law, ie the would-be proper

law had the contract been effectively created.

This Act impiemenis tie Rome Conveniion of 1980. it care

into force on 1 April 1991.

Where the parties have made a choice of law in their

contract, this will be upheld unless, where all the other
relevant elements are connected with one country only, that
choice prejudices the application cf that country’s mandatcry

rules.

Where no such choice of iaw is made, the contract will be

governed by the law of the country with which it is most

closely connected.

It is to be presumed that the contract is most closely

connecied with the country where the party who is to effect
the characteristic performance of tiie contract has his habitual
residence at the time of the conclusion of the contract.

Where, however, the subject-matter of the contract is a

right in immovable property, then the contract is presumed to
be most closely connected with the lex sifus.

Contracts for the carriage of goods are presumed te be

most closely connected with the country in which the carrier
has his prir.cipal place of business yrovided that this country is
also the place of loading, dischaige, or ine principal place of
business of the consignor.

These presumptions may Fe reoutted if it appears that the

contract is more closely connected with another country.

The common law

approach -

Ture Contract?
(Applicable Law) Act
3950
Material validity

Formal validity

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“consequences of breach,

Special rules on choice of law ar

e also made in relation to

consumer contracts

and individual employment contracts.

In general, the @pplication of the law identified by the

Convention rust not restrict the application of the mandatory
rules of the forum which cannot be derogated from by
contract, .

Equally, the application of the pro

if ‘t is manifestly incompatible with

forurn,

per law may be refused

the pubtic policy of the

Issues of material validity are to be governed by the law which

_ would govern the contract had the latter been validly created.

Issues of formal valicity ere determined as fo

Waere the parties are resident in the same country,
_ contract is formally valid if it meets the requirements of :
ae either the law of that country or the |

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LIC TOL Law

(UNIT WISE SUBILCT: PLAN)

For convenier + Woe planned to wrrange the contenysubjcct of conflict of

Private inte! Jaw in sty primary units Fach unit contains a detailed chapter

plan comprising of various sui-topies. In this course it ts also proposed to put

focus on
Indian Private International law rules

Unit-1

Introduction

Nature and Scope of Private Intemational law

a) Title of the subject

Public law and Private law
Public International law and Private Intemational fa
Range and Ditticulty of the subject
fechnical Terms
Bases of Conflict of
Functions of Private Intemational law
alJurisdiction
b) Recogmition and Enforcement of Foreign Judgements
c)Chaice of law
Unification of Private International law
aCivil and Common taw systems
b Unification of Internal laws.
eWUnification of Private Intemational law '
Indian Private Intemational law

ewe

Ws,

Unit-IL
Preliminary Tapics
1. Classitication or Charecterisation
a. Classification of the Cause of action
b Classification ofa Rule of law ‘
2 Incidental question
a Elements of an Incidentai question
a. Depecage
2) Renvoi
a. Doctrine of Single Renvoi
b_ b) Doctrine of Total Renvoi/ Foreign Court Theory
3. Substance and Procedure
L a adlamitation
b b)Rvidenve
ve c)Parties . '
d. Nature and Extent of remedy

7 Domicile.Nationality and Residency

a)Domucile of Origin
b)Domicile of Dependencs
¢)Domierz of Choice
i)Proof of Domiciie of Choice
ii)Residency
iii)IMtention
d)Abandonment of Domeile
e)Distinction between Nationality Domicile
NDomicile. Nationality and Residence- Indian law

Unit-1
Jurisdiction of Courts and Foreign Judgements
A. Jurisdiction of Courts-English law

B. Jurisdi n of Courts-Indian law

C. Recognition and Enforcement of Forei:

en Judgements

A. Jurisdiction of Courts-English law

1 Jurisdictica of Fnghsh Courts in Commer

Rules
a)Defendrt pi
Individuals
ii)Comporations
iii)Partnerships
vi)Submission to the jurisdiction
b)Defendant out side the jurisdiction
iMurisdiction and Genere! rules
i)Contract
iti)Tort
iv)Propery
2.Jurisdiction under the New rules
a)Domicile *
b)Interpretation of the New rules
c)Scope of the New rules
d)General bas:s of jurisdiction
e}Special jurisdiction

Disputes under Traduional

at within the jurisdiction

IL

g)Maintenance

h)Ton

i)Civil claims in criminal proceedings

J)Branch or Agency

k) Trusts

Jurisdiction in matters relating to surance

m)Exclusive jurisdiction
n)lmmevable propeny

o)Companies and Associations

p)Public registers

q)lntellectual property

r)Enforcement of judgements
s)Submission

UJursdiction within UK

3. Prevention of Forum Shopping: Stays. Injunctions. Lis Alibi Pendens, and

Jurisdiction Clauses
a)Forum Shopping
b)Stay of English proceedings
1)Forum non conveniens
u)Lis alibi pendens
11) Foreign jurisdiction clauses
c)Restraing foreign proceedings

B. Jurisdiction of Courts- Indian law

1.Suits by Alien enemies
2 Immunity from suits
3 Section 86 of CPC and International law
4 Statutory provisions relating to jurisdiction in India
a)General provisions
b)Special provisions
Admiralty jurisdiction
11) Intemational carriage by air
1)Matrimonial matters
5 Jurisdiction of Indian courts: Immovable propery
6 Jurisdiction in personam —Position in India
a)Jurisdiction to restrain the defendant from filing or continuing proceedings in
foreign cour
7 Jurisdicuion im rem
+ § Decline to exercise jurisdiction or grant anti- suit injunction
9 Forum selection and Arbitration clauses

C. Recognition and Enforcement of Foreign Judgements

* English law
| Introduction
2 Recognition and Enforcement at Common law
a)Requirements for recognition and enforcement
bMurisdiction of the foreign court
c)Residence
d)Submission
e)Further requirements for enforcement
i)At Common law
it)The Foreign Judgemenis(Reciprocal Enforcement)Act. 1933
f)Defences
1)Fraud
‘ti) Contrary to natural justice
lii}Contrary to public policy
iv)Section 32 of civi! Jurisdiction and Judgment Act, 1982
g)E C and EFTA Judgments
i)Mechanism for enforcement
ii)Defuses
iii)Recognition and Enforcement within U.K.

“Indian law

| Statutory Provisions on India

a) Enforcement of Foreign judgements (Sections 13 & 14 of CPC)
b) Execution of Foreign Judgments (Section 44 - A of CPC)
' c) Effect of foreign Judgmeats (S.41 of Indian Evidence Act)

2. Indian Decisions
a)General
b)Proof of Foreign Judgement
c)Conclusiveness of Foreign Judgement
d)When Foreign couri has jurisdiction
e)Judgements on merits
fJudgements which disregarded Intemational law or Applicable law
g)Judgements contrary to Natural Justice
h)Judgements obtained by fraud
i) Judgements sustaing claims founded on breach of Indian law
J) Judgements opposed to Public policy
k)Foreign exchange laws
3.Recognition and Enforcement of Foreign Awards (The Arbitration and
Conciliation Act, 1996
Unit

Law of Gbligations
(Contracts and Torts)

A. Choice of law in contract

B. Choice of law in Tort

Choice of law in contract

* English law
1 Introduction
a)Propes law doctrine
b)Harmonisation
c)Rome Convention
2.Rome Convention: General Considerations
a)Scope of the Convention
i)Exclusions
ti)Universal application
b)Interpretation
c)Exclusion of renvoi
3. Determining the applicable law
a)Applicable law chosen by the parties
i)Express choice
b)Choice demonstrated with reasonable certainty
i)Dispute-resolution clauses
ii)Standard forms
fii)Previous course of dealing
iv)Express choice of law in related transactions
v)Reference to particular rules
vi)Other considerations
¢)The distinction between implied choice and no choice
d)Splitting the applicable law
e)Changing the applicable law
4.Applicable law in the absence of choice
5.Limits of the applicable law
a)Mandatory rules
b)Public policy :
6 Consumer contracts and Individual contracts of employment
7.Particular aspects of the contract :
a)Material validity on
b)Formal validity

c)Capacity
d)Effect and construction of a contract
e)Discharge
Nlllegality
i)Contracts governed by English law
ii)Contracts not governed by English law
8.Remidies and Damages

*Indian law
1 General contracts
2.Specific contracts

Choice of law in Tort

*English law
1 Introduction
2. At Common law
a)General rules
b)Where a tort takes place
¢)Miscellancous questions arising in tort claims
d)Defamation. Negiigent misstatement
e)Maritime Torts
Torts alleging infringement or IPRs
3.Statutory Reform
4 Reliefs
*Indianlaw
| Jurisdiction of Indian Courts
2.Applicable law
3.Where a tort takes pkace

4.IPRs
SMaritime and Aerial Torts _

Unit -V

Family law

A. Marriage and Matrimonial Relieves

B. Conflict of laws Rules Relating to Children

Marriage and Matrimonial Relieves

*English law
vevetUUGTUUUU

| Nature of marriage

2.Formal validity of the marriage

a)Marniages in enemy territory
b)Marriages on ships
c)Presumption of marriage
3.Capacity to marry
4 Consent of parties
5 Polygamous marriages
6 Same-sex relationships and Transsexual marriages
7 Divorce and other matnmonial relief

*Indian law
| Concept of marrage
2.Formal validity
3 Presumption of marnage
4 Capacity te marry
a)Statutory position
b)Christians
c)Hindus,
d)Muslims
e)Foreign marriages
5 Consent of panies
6 Polygamous marriages
7 Divorce and other matrimenial reliels
a)Family Courts t
b)Cristian law
“e)Hindu law
d)Muslim law
e)Special Marriage Act.1954.
{Foreign Marriage Act.1969
8 Jurisdiction
ijJurisdiction of High Court
ii)Jurisdiction under Specific Relief Act,1963.
9.Maintenance in Indian law

ConMict of laws Rules Relating to Children

*English baw *
| Introduction
2. Legiumacy and Legitimation

3.Adoption

UPEUECUUTEL

a)English adoptions

b)Recognition of foreign adoptions

i)Convention adoptions
ii)Overseas adoptions
iii)Recognition at Common law

4.Guardianship

a)General rule
b)Jurisdiction of English Courts

c)Foreign Maintenance and Guardianship Orders

*Indian law

1 .Legitimacy and Legitimation

a)Legitimacy
b)Presumption of marriage
c)Presumption of Legitimacy
d)Legitimation

2.Adoption

3.Guardianship
a)Foreign Guardianship Orders

Unit-V1

*English law
1.Movables and Immovables
2.Transfers intervivos
2)lmmovables
b)Tangible movables
i)Lex situs rule
ii)Exception to the lex situs rule
c)Intangible Movables
i)situs of intangibles
ii)Choice of law rules
*Assainability

*Validity of the assignment: Contractual questions

*Effect of the assignment: Proprietary questions
d)Governmental’ Expropriation of Property

3.Matrimonial Property
a)Applicable law i;
i)Movable property
ii)Mutability or immutability
iii)Immovablé property

Law of Property
bjAntenuptial Contracts

¢)Matrimonial Property rights and divorce

4 Succession
a) Introduction
byWills
i)Movables
*Choice of law
*Capacity
*Formal Validity
*Essential Validity
“Construction
*Revocation
Foreign Immovables-Choice of law
"Capacity
*Formal Validity
“Essential Validity
“Construction
“Revocation
c) Intestate Succession
i)Movables
ii)Immovables
d)Renvoi in succession cases
e)Incidental question

“Indian law
1. Movables and Immovables
a)Tangible movables
b)Intangible movables
¢)Shares and Bonds
d)Negotiable Instruments
2 Actions of foreign governments regarding property
3.Effect of marniage on property rights
4 Intestate Succession
a)General rules
b)Law applicable to persons
i}Christians
ii)Hindus
iii)Muslims
5.Testamentary Succession
a)General rules
b) Law applicable to persons
1) Hindus
1i)Muslims
ii)Chnistians