CONFLICT OF LAWS

UNIT 1

Definition, Nature and Scope of Private International Law

Definition
Private International Law describes the body of law surrounding which law governs
when there is a conflict between citizens of different countries. In common law
jurisdictions, it is sometimes known as "conflict of laws."
Private international law refers to that part of the law that is administered between
private citizens of different countries or is concerned with the definition, regulation, and
enforcement of rights in situations where both the person in whom the right inheres and
the person upon whom the obligation rests are private citizens of different nations.
It is a set of rules and regulations that are established or agreed upon by citizens of
different nations who privately enter into a transaction and that will govern in the event
of a dispute. In this respect, Private International Law differs from public international
law, which is the set of rules entered into by the governments of various countries that
determine the rights and regulate the intercourse of independent nations.

As per Cheshire “Private international law, then, is that part of the law which comes
into play when the issue before the courts affects some facts, events or transaction that is
so closely connected with a foreign system of law as to necessitate recourse to that
system.”
According to Joseph Story, a prominent American jurist, “private international law is
concerned with determining which legal system should apply when parties from different
countries are involved in a legal dispute.”
As per P Tandon: "Private international law is a body of principles determining
questions as to jurisdictions and questions as to selection of appropriate law, in civil
cases which present themselves for decision before a court of one state or country, but
which involves a foreign element i. e. which effect foreign persons or foreign or
transactions that have been entered in a foreign country or with respect of foreign system
of law"
As per Baty “Private International Law is the body of law that governs relationships
between individuals or companies in different countries. PIL is the rules voluntarily
chosen by a given state for the decision of cases which have a foreign complexion “
Nature
The nature of Private International Law is complex and multifaceted, as it involves a
combination of national laws, international conventions, and principles of comity and
reciprocity. It is a dynamic and evolving field of law that is constantly adapting to the
changing demands of globalization and cross-border transactions. Private International
Law plays a crucial role in facilitating international trade, investment, and cooperation
by providing a framework for resolving disputes and enforcing contracts across borders.
Private international law doesn’t aim for or need everyone to agree on the same rules. It
remains a part of each country’s own laws.
Even with similarities and cooperation, the nature of private international law is quite
different from public international law in two key ways: it’s about rules for individuals
and businesses, not countries and its main purpose is to work within a country’s legal
system and courts.

SCOPE
The scope of Private International Law is broad and encompasses a wide range of legal
issues, including contract disputes, family law matters, property rights, and commercial
transactions. It also covers areas such as international arbitration, jurisdictional issues,
recognition and enforcement of foreign judgments, and choice of law rules. Private
International Law is essential for the functioning of the global legal system, as it ensures
that individuals and businesses can rely on a consistent and predictable set of rules when
engaging in cross-border activities. It is a vital tool for promoting legal certainty and
facilitating international cooperation in an increasingly interconnected world.
Private international law isn’t a separate type of law like contract or tort law. It’s a part of
the legal system that shows up unexpectedly in any court case involving things from
different countries. It can show up in common law cases, equity cases, divorce cases and
more. Even the simplest debt case or the most complex equitable claim might need
private international law to solve a problem. That’s what the scope of private
international law is!
Despite not being its own branch, private international law is distinct in the English legal
system, just like tort or contract law. It’s special because it always deals with three main
questions:
1. Does the English court have the right to handle the case?
2. Can foreign judgments be accepted and enforced in England?
3. Which legal system, English or foreign, should apply to the case?
Let’s look at each of these questions:

(a) Jurisdiction

The main rule in common law is that the English court can only hear a case against
someone who has been served a claim form in England or Wales. This rule applies
whether the case involves foreign aspects or not. But there are situations where the court
can have power over absent defendants, especially in foreign cases. Also, in some cases
like divorce, the defendant being in the country doesn’t automatically give the court
power. If the defendant lives in a European Union country, there are separate rules.

(b) Recognition

When a case has been settled in a foreign court but the defendant’s assets are mainly in
England, it’s important to know if English law will accept and enforce the foreign
judgment. If the foreign court had the right to decide the case, English law generally
treats the judgment like its own.

(c) Choice of Law

If the English court has the power to handle the case, the next question is about which
legal system, English or foreign, should apply. Private international law helps decide this.
For instance, if a British person dies in Italy without a will, Italian law might apply to
 distribute their belongings. These rules guide which legal system should be used.
Sometimes, different parts of a case might be governed by different laws.
In simpler words, private international law is like a guide at a train station. It helps figure
out which “train” of legal rules to use for a case involving different countries. It doesn’t
directly solve the case, but it points to the right rules. For example, if there’s a
disagreement about a contract made in France and the defence is that the French rules
weren’t followed, private international law says French law should decide the contract’s
validity. However, the specific French law needs to be explained by an expert witness.

HISTORICAL EVOLUTION OF PRIVATE INTERNATIONAL LAW

Private international law, also known as conflict of laws, is a branch of law that deals with legal
disputes between individuals or entities in different countries. It governs the rights and
obligations of parties involved in such disputes and seeks to provide a framework for resolving
conflicts that arise from the diversity of legal systems across the globe. The evolution of private
international law has been shaped by historical, political, and economic factors, as well as by the
need for a consistent and fair resolution of cross-border legal issues.

The origins of private international law can be traced back to ancient civilizations, where
different legal systems coexisted and interacted with each other through trade and diplomacy. As
international commerce and communication flourished, the need for a set of rules to govern legal
disputes between parties from different countries became evident. The development of private
international law was further spurred by the rise of nation-states and the expansion of
international trade, which created a greater need for a uniform legal framework to govern
cross-border transactions.

a. Rome:
The contribution of Roman legal system towards the evolution of Private International Law is the
rules of Origo and Domicilum i. e. law of natives and alien. A person had his Origo in the place
to which his father or mother (if he is illegitimate) belonged. Domicilium meant the relation
between a man and the urban community which he had chosen for his permanent residence.

Roman civil law (jus civile) being inapplicable to non-citizens, special tribunals had jurisdiction
to deal with multi-state cases. The officers of these specialized tribunals were known as the
praetor peregrini. The Praetor peregrini did not select a jurisdiction whose rules of law should
apply. Instead, they "applied" the jus gentium. The jus gentium was a flexible and
loosely-defined body of law based on international norms. Thus the praetor peregrini essentially
created new substantive law for each case. Today, this is called a "substantive" solution to the
choice-of-law issue.

b. After the fall of Roman Empire:

After the fall of Roman Empire law again became personal. In such system, the rule of law to
which the defendant belonged must prevail. So, there was no scope for the growth of Private
International Law.

c. 11th and 12th Centuries:

Gradual development of feudalism in North and growth of Italian cities in the South, in 11th and
12th century gave rise to the territorial nature of law. A large number of cities like Florence,
Bologna, Milan and Padua emerged. Each of these cities was subject to different system of laws
which were applicable to the residents therein.
d. 13th to 18th Century:

With the development of commerce and transaction dispute arose between individuals of two
cities of Italy. Jurists tried to solve those problems by focusing on rules of Roman law, who are
known as Glossators. However, the early Glossators were not so much successful to this end, but
the post-Glossators in 13th century were. The post Glossators discovered the Statute theory.
According to this theory law can be divided into two categories: I. Real Statute and II. Personal
Statute

The main purpose of real statute is to regulate things and the purpose of personal statute is to
deal about personal matters. Real statutes were considered essentially as territorial while
personal statutes were personal. The law of person would be applicable unless such personal law
was opposed to the “Public Order” of the city. Bartolus was a greatest scholar amongst other
during this period. However, this theory was not perfect as classification of ‘real’ and ‘personal’
was not unanimous amongst cities and the definition of ‘public order’ was not clear.

19th Century
The modern era of private international law began in the 19th century with the codification of
conflict of laws rules in various jurisdictions. Prominent legal scholars and practitioners, such as
Friedrich Carl von Savigny and Louis Renault, contributed to the development of private
international law as a distinct area of legal study and practice.
20th Century
The conferences were held in 1894, 1900, and 1904. These conferences, like their counterparts in
Montevideo, resulted in several multilateral agreements on numerous themes related to conflict
of laws. Subsequently, the frequency of these gatherings decreased, with the following
conventions taking place in 1925 and 1928. The sixteen participating governments formed a
permanent organisation for international cooperation on conflict-of-laws matters during the
seventh conference in The Hague, which took place in 1951.
The Hague Conventions of the early 20th century further refined and expanded the scope of
private international law, establishing rules for jurisdiction, recognition and enforcement of
foreign judgments, and choice of law in international disputes.
As interest in the topic increased in the later half of the 20th century, the European Union began
to take action to standardize conflict of law doctrine among its member states. The 1968 Brussels
Convention was the first of them, and it dealt with the question of jurisdiction in cases involving
several nations. Following this in 1980 was the Rome Convention, which dealt with rules of
choice-of-law for contract disputes across EU member states.

21st Century
In 2009 and 2010, the European Union passed the Rome II Regulation, which addressed choice
of law in tort proceedings, and the Rome III Regulation, which addressed choice of law in
divorce matters.

The future of private international law is likely to be shaped by the continued evolution of global
legal systems and the increasing complexity of cross-border legal transactions. As technology
and communication continue to break down barriers between countries and cultures, the need for
a common framework for resolving international legal disputes will become even more crucial.
Private international law will need to adapt to these changes by developing innovative methods
for resolving conflicts, promoting international cooperation, and ensuring a fair and just
resolution of cross-border disputes.

Conclusion
In conclusion, the evolution of private international law has been driven by historical, political,
and economic factors, as well as by the need for a coherent and effective framework for
resolving international legal disputes. From its origins in ancient civilizations to its modern
incarnation as a complex and dynamic field of legal study, private international law continues to
play a crucial role in regulating cross-border transactions and promoting international
cooperation. As the world becomes increasingly interconnected, the importance of private
international law in ensuring a fair and just resolution of international legal disputes will only
continue to grow.
Hague Conference

The Hague Conference on Private International Law (HCCH) is an intergovernmental

organization in the field of private international law, established in 1893. The main objective of
the HCCH is to work towards the harmonization and unification of rules in the field of private
international law. The HCCH aims to provide a framework for international cooperation and
collaboration in resolving legal disputes that involve parties from different jurisdictions.
The HCCH plays a vital role in facilitating cross-border legal transactions and ensuring the
smooth functioning of international legal systems. The organization is responsible for developing
and promoting conventions and protocols that address various issues related to private
international law, such as jurisdiction, recognition and enforcement of judgments, and access to
justice.
One of the key functions of the HCCH is to draft and adopt international conventions that
establish uniform rules and procedures for resolving legal disputes across borders. These
conventions are designed to promote legal certainty and predictability in international legal
transactions, and to facilitate the effective resolution of disputes between parties from different
countries.
The HCCH convenes regular diplomatic conferences where member states can come together to
discuss and negotiate international conventions and protocols. These conferences provide a
platform for member states to exchange views and experiences on issues related to private
international law, and to work towards the development of uniform rules and standards in this
area.
The HCCH has a diverse membership of over 80 countries, as well as numerous
non-governmental organizations and other entities. Member states of the HCCH are required to
adhere to the organization's conventions and protocols, and to work towards the promotion of
uniform rules and procedures in the field of private international law.
The HCCH also provides a platform for the exchange of information and best practices in the
field of private international law. The organization publishes various publications, reports, and
studies on issues related to private international law, and organizes seminars, conferences, and
other events to promote dialogue and cooperation among member states.
Overall, the HCCH plays a crucial role in promoting legal certainty and predictability in
international legal transactions, and in facilitating the resolution of legal disputes that involve
parties from different jurisdictions. The organization's work contributes to the development of a
more coherent and efficient international legal system, and to the promotion of international
cooperation and collaboration in the field of private international law.

Broadening horizon of Private International Law:

1. WTO and Commercial Transactions

Private International Law, also known as Conflict of Laws, is a crucial aspect of the legal system
that governs relationships between private entities across different countries. With the increasing
globalization of the world economy, the need for a well-established framework for resolving
conflicts between parties from different jurisdictions has become more pronounced. The World
Trade Organization (WTO) plays a significant role in broadening the horizon of Private
International Law by facilitating trade among member countries and creating a more predictable
and transparent system for resolving disputes.
One of the key contributions of the WTO to Private International Law is the establishment of a
set of rules and principles that govern trade relations between member countries. These rules,
known as the WTO agreements, provide a comprehensive framework for resolving disputes
related to international trade and investment. By creating a uniform set of rules that apply across
different jurisdictions, the WTO helps to reduce uncertainty and promote stability in international
business transactions.
Moreover, the WTO's dispute settlement mechanism serves as an important forum for resolving
conflicts between member countries. This mechanism allows parties to bring disputes before a
neutral panel of experts who can provide an impartial and binding decision. By providing a fair
and efficient process for resolving disputes, the WTO helps to ensure that private entities can
engage in cross-border transactions with confidence and security.
In addition, the WTO promotes transparency and predictability in international trade through the
publication of its rulings and reports. These documents provide valuable guidance to parties
involved in cross-border transactions, helping them to understand their rights and obligations
under the WTO agreements. By increasing transparency and predictability, the WTO helps to
reduce the likelihood of disputes arising between parties from different jurisdictions.

WTO Agreements
● Agreement on Agriculture
● Agreement on the Application of Sanitary and Phytosanitary (SPS) Measures
● Agreement on Textiles and Clothing
● Agreement on Technical Barriers to Trade (TBT)
● Agreement on Trade-Related Investment Measures (TRIMs)
● Agreement on Implementation of Article VI of the General Agreement on Tariffs and
Trade 1994 (Anti-Dumping Agreement)
● Agreement on Implementation of Article VII of the General Agreement on Tariffs and
Trade 1994 (Customs Valuation Agreement)
● Agreement on Pre-shipment Inspection (PSI)
● Agreement on Rules of Origin
● Agreement on Import Licensing Procedures
● Agreement on Subsidies and Countervailing Measures
● Agreement on Safeguards
● General Agreement on Trade in Services (GATS)
● Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
● Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU)
● Trade Policy Review Mechanism (TPRM)
● Agreement on Trade in Civil Aircraft
● Agreement on Government Procurement

Furthermore, the WTO's efforts to promote free trade and reduce barriers to international
commerce have also had a significant impact on Private International Law. By encouraging
member countries to liberalize their trade policies and adopt more open and predictable trade
regimes, the WTO helps to create a more hospitable environment for cross-border transactions.
This, in turn, can help to reduce conflicts between parties from different jurisdictions and
promote greater legal certainty in international business transactions.

Moreover, the WTO's focus on promoting the rule of law and ensuring compliance with
international legal standards also contributes to the development of Private International Law. By
upholding the principles of non-discrimination and equal treatment among member countries, the
WTO helps to create a more level playing field for private entities operating in the global
marketplace. This can help to reduce conflicts between parties from different jurisdictions and
promote a more harmonious and cooperative relationship among member countries.

The WTO operates the global system of trade rules and helps developing economies build their
trade capacity.

Global rules of trade provide assurance and stability. Consumers and producers know they can
enjoy secure supplies and greater choice of the finished products, components, raw materials and
services they use. Producers and exporters know foreign markets will remain open to them.

This leads to a more prosperous, peaceful and accountable economic world. Decisions in the
WTO are typically taken by consensus among all members and they are ratified by members’
parliaments. Trade frictions are channelled into the WTO’s dispute settlement process, where the
focus is on interpreting agreements and commitments and how to ensure that members’ trade
policies conform with them. That way, the risk of disputes spilling over into political or military
conflict is reduced.

By lowering trade barriers through negotiations among member governments, the WTO’s system
also breaks down other barriers between peoples and trading economies.

At the heart of the system – known as the multilateral trading system – are the WTO’s
agreements, negotiated and signed by a large majority of the world’s trading economies, and
ratified in their parliaments.
These agreements are the legal foundations for global trade. Essentially, they are contracts,
guaranteeing WTO members important trade rights. They also bind governments to keep their
trade policies transparent and predictable which is to everybody’s benefit.

The agreements provide a stable and transparent framework to help producers of goods and
services, exporters and importers conduct their business. The goal is to improve the welfare of
the peoples of the WTO’s members.

Its Functions

The WTO’s overriding objective is to ensure trade flows as smoothly and predictably as possible
and to help its members use trade as a means to raise people's living standards. It does this by:

1. administering trade agreements

2. acting as a forum for trade negotiations
3. settling trade disputes
4. reviewing national trade policies
5. building the trade capacity of developing economies
6. cooperating with other international organizations

In conclusion, the World Trade Organization plays a crucial role in broadening the horizon of
Private International Law by providing a comprehensive framework for resolving disputes
related to international trade and investment. Through its dispute settlement mechanism,
transparency initiatives, and promotion of free trade, the WTO helps to create a more predictable
and secure environment for cross-border transactions. By upholding the principles of
non-discrimination and equal treatment among member countries, the WTO contributes to the
development of a more harmonious and cooperative relationship among parties from different
jurisdictions.
Overall, the WTO's efforts to promote the rule of law and ensure compliance with international
legal standards help to strengthen the foundations of Private International Law in the global
economy.
TRANSACTIONS THROUGH CYBER SPACE

The United Nations Commission on International Trade Law (UNCITRAL) Model Law on
Electronic Commerce is a set of guidelines and regulations that aim to facilitate electronic
commerce transactions across international borders. The Model Law provides a framework for
countries to enact legislation that is compatible with international standards, in order to promote
the growth of e-commerce and ensure a level playing field for businesses operating online.
One of the key objectives of the UNCITRAL Model Law on E-commerce is to provide legal
certainty and predictability for electronic transactions. By establishing clear rules and standards
for electronic contracts, signatures, and records, the Model Law helps to prevent
misunderstandings and disputes between parties engaged in e-commerce transactions. This in
turn helps to build trust and confidence in online transactions, which are essential for the growth
of e-commerce.
Another important aspect of the UNCITRAL Model Law on E-commerce is its emphasis on
promoting the use of electronic signatures. Electronic signatures are a key tool for verifying the
identity of parties to a transaction and ensuring the integrity of electronic documents. The Model
Law helps to establish the legal validity of electronic signatures, making them equivalent to
handwritten signatures in the eyes of the law.
The Model Law also addresses the issue of electronic contracts, providing guidance on how
contracts can be formed, concluded, and enforced in electronic form. By establishing rules for
the formation and validity of electronic contracts, the Model Law helps to ensure that electronic
transactions are legally enforceable and provide a secure legal framework for online commerce.

In addition to providing guidelines for electronic signatures and contracts, the UNCITRAL
Model Law on E-commerce also addresses issues related to the use of electronic records. The
Model Law sets out standards for the retention and storage of electronic records, ensuring that
they are accessible, reliable, and tamper-proof. This helps to prevent the loss or alteration of
electronic records, and provides a clear framework for the management of electronic documents
in e-commerce transactions.
Furthermore, the Model Law also addresses issues related to electronic payment systems,
providing guidance on the use of electronic means for making and receiving payments in
e-commerce transactions. By setting out rules for the use of electronic payment systems, the
Model Law helps to promote the development of secure and efficient payment methods for
online transactions, which are essential for the growth of e-commerce.

Part I discusses the general provisions relating to e-commerce, by legislating the principles of
“non-discrimination”, “technological neutrality”, and “functional equivalence”. Following are
the principles of Model law on e-commerce:

● The principle of non-discrimination– It ensures that any document would not be

denied its legal validity, effect, and enforceability solely on the basis that it is in
electronic form.
● The principle of technological neutrality– It mandates the adoption of such
provisions that are neutral with respect to the technology used. This will further
enhance the pace up of international monetary transactions with the advancement in
technology.
● The functional equivalence principle- Functional equivalence, as the name
suggests, is equal treatment to all on the service front. It means both the transactions,
traditional as well as technological, that means, paper bound and electronic cannot be
challenged on their validity or effectiveness.

Overall, the UNCITRAL Model Law on E-commerce is an important tool for countries seeking
to develop a legal framework that supports and promotes the growth of electronic commerce. By
establishing clear rules and standards for electronic transactions, the Model Law helps to
facilitate cross-border e-commerce transactions and provide a secure legal framework for online
commerce. As more countries adopt and implement the Model Law, it is expected to play a key
role in promoting the growth of e-commerce and ensuring a level playing field for businesses
operating online.

JURISDICTION UNDER PRIVATE INTERNATIONAL LAW

Jurisdiction under private international law is a complex and often contentious issue that arises
when a legal dispute involves parties from different countries. Private international law, also
known as conflict of laws, deals with determining which country's laws should apply to a given
dispute and which country's courts have the authority to hear the case. Understanding jurisdiction
under private international law is crucial for resolving cross-border disputes and ensuring that
justice is served in an international context.
One of the key principles in jurisdiction under private international law is the concept of
territoriality. This principle holds that a country's laws and courts have jurisdiction over actions
that take place within its borders. However, in cases involving multiple countries, determining
which country's laws should apply can be more complicated. Courts may consider factors such as
the parties involved, the location of the dispute, and any applicable international treaties or
agreements.
Another important aspect of jurisdiction under private international law is the principle of
comity. This principle holds that courts in different countries should respect each other's
jurisdiction and decisions. For example, if a court in one country issues a judgment in a case
involving parties from different countries, other countries may recognize and enforce that
judgment as long as it does not violate their own laws or public policy.
In some cases, parties may agree to resolve disputes through arbitration rather than through the
courts. Arbitration is a form of alternative dispute resolution in which parties agree to have a
neutral third party, known as an arbitrator, make a binding decision on the dispute. Arbitration
can be a more efficient and cost-effective way to resolve cross-border disputes, as parties can
choose the law that will apply and the location where the arbitration will take place.
In private international law, jurisdiction refers to the authority of a court to hear and decide cases
that involve parties from different jurisdictions or that cross national borders. This area of law is
essential in resolving disputes that have an international element, such as contracts, torts, or
family law matters.

Here’s a general overview of key concepts related to jurisdiction under private international law:

1. Jurisdiction Clauses: Contracts between parties from different countries often include
clauses specifying which court or legal system will have jurisdiction in the event of a
dispute. Courts usually uphold these clauses as long as they are clear and agreed upon by
both parties.
2. General Jurisdiction: A court may have general jurisdiction if a party has substantial
connections with the forum state, such as residence or business operations. For instance, a
court in a country where a defendant lives or where a business is conducted might claim
general jurisdiction over disputes involving that party.
3. Specific Jurisdiction: This type of jurisdiction refers to a court’s authority to hear a case
because the legal issue arises from activities or transactions that occurred in the forum
state. For example, if a company conducts business or commits a tort in a particular
country, that country’s courts might have specific jurisdiction over related claims.
4. Forum Non Conveniens: This principle allows a court to decline jurisdiction if it
believes that another forum would be more appropriate for the case. It is used to avoid
cases where litigation in the current forum would be unduly burdensome or inconvenient
compared to another forum.

Overall, jurisdiction under private international law is a complex area that requires careful
consideration of a variety of factors. By understanding the principles of territoriality, comity, and
arbitration, parties can navigate the complexities of cross-border disputes and ensure that justice
is served in an international context. It is crucial for legal professionals and policymakers to stay
informed about developments in private international law in order to effectively address the
challenges of globalization and international commerce.
CHOICE OF LAW
Choice of law under private international law refers to the process of determining which laws
should apply to a particular legal issue when there is an international element involved. This
issue arises when parties involved in a legal dispute come from different countries or when the
legal issue itself has international implications. The choice of law rules are crucial in ensuring
that conflicts are resolved in a fair and just manner, taking into account the interests of all parties
involved.
One of the key principles in choice of law is the principle of party autonomy, which allows the
parties to choose the applicable law in their contracts or agreements. This principle gives parties
the freedom to select the law that they believe will best suit their interests and needs. However,
this choice is subject to certain limitations, such as public policy or mandatory laws that may
override the parties' choice. In cases where the parties have not made a choice of law, the courts
may apply other rules to determine the applicable law
Another important principle in choice of law is the principle of closest connection, which looks
at various factors such as the nationality of the parties, the place of performance, and the location
of the subject matter of the dispute to determine the most appropriate law to apply. This principle
aims to ensure that the law applied has the closest connection to the legal issue at hand, in order
to provide a fair and just resolution.
Furthermore, the concept of renvoi, which refers to the situation where a court applies the
choice of law rules of another country, can also come into play in choice of law issues. This can
complicate matters further, as it involves determining which country's choice of law rules should
apply in a given situation. However, most legal systems have specific rules to deal with renvoi,
in order to prevent endless loops of cross-references to different legal systems.
Principle of Lex Loci: The law of the place where the legal relationship or event took place may
be considered.

Judicial Discretion:
In some cases, courts may exercise discretion in determining which law to apply, particularly if
the choice of law rules lead to unjust or undesirable results. Courts may also consider whether
the application of a particular law would contravene the public policy of the forum.

Public Policy Considerations:

Even if a choice of law is determined, a court may refuse to apply it if it conflicts with the
fundamental public policy of the forum jurisdiction. This ensures that the application of foreign
law does not undermine essential values or principles of the local legal system.

Understanding the choice of law is essential for parties involved in international transactions or
disputes, as it affects the rights and obligations under the law that will be applied.

Overall, choice of law under private international law is a complex and intricate area of law that
requires careful consideration and analysis. It is crucial in ensuring that conflicts are resolved in
a fair and just manner, taking into account the various interests and needs of the parties involved.
By understanding the various principles and rules that govern choice of law, legal practitioners
can navigate through the complexities of cross-border legal disputes and provide effective and
efficient solutions for their clients.

UNIT II
DOMICILE

DOMICILE OF CORPORATION

Criteria for Domicile

● Incorporation: The domicile is often determined by the place of incorporation. This is

the state or country where the corporation is legally established and registered.
 ● Principal Place of Business: While the place of incorporation is a primary factor, the
principal place of business (where the main office or operational activities are centered)
can also impact the determination of domicile, especially for practical and legal purposes.

2. Legal and Regulatory Implications

● Jurisdiction: The domicile determines the jurisdiction in which the corporation is subject
to legal processes and regulatory oversight.
● Taxation: The corporation’s domicile affects its tax obligations, including income tax,
sales tax, and other local taxes. Different jurisdictions have different tax laws and rates.
● Compliance: Corporations must adhere to the laws and regulations of their domicile,
including corporate governance, reporting requirements, and other legal obligations.

3. Changing Domicile

● Re-domiciliation: Corporations may change their domicile through a process known as

re-domiciliation or migration. This involves transferring the legal registration from one
jurisdiction to another. This process can be complex and requires compliance with the
laws of both the original and the new jurisdiction.
● Effectiveness: Re-domiciliation can affect the corporation’s tax status, regulatory
requirements, and legal standing, and it often involves significant administrative and
legal procedures.

5. International Considerations

● Cross-border Operations: For multinational corporations, determining domicile can

involve multiple jurisdictions. The corporation might be incorporated in one country but
operate in several others. In such cases, the corporation must navigate the legal and tax
implications of each jurisdiction.
● Treaties and Agreements: International treaties and agreements may influence the
treatment of domicile for tax and legal purposes. For instance, bilateral tax treaties can
impact how corporations are taxed in different jurisdictions.

6. Examples
 ● Incorporation in a Specific State: A corporation incorporated in Delaware, USA, is
considered domiciled in Delaware, regardless of where its principal place of business is
located.
● Headquarters vs. Incorporation: A corporation may be incorporated in one state or
country but have its headquarters or principal place of business in another. For legal and
regulatory purposes, both the place of incorporation and the principal place of business
may be relevant.

In summary, the domicile of a corporation is a crucial concept that affects its legal standing,
regulatory compliance, and tax obligations. Understanding where a corporation is domiciled
helps in navigating its legal environment and ensuring compliance with applicable laws and
regulations.

DOMICILE OF A FUGITIVE

The concept of domicile of a fugitive refers to the legal status or location of a person who is
evading law enforcement and is wanted for arrest or legal action. The term "domicile" in this
context involves understanding where the fugitive is considered to have their legal residence or
where they might be subject to legal processes.

Key Aspects of the Domicile of a Fugitive:

1. Legal Definition:
○ Domicile: For legal purposes, a fugitive’s domicile is the place where they are
legally considered to reside or where they have their primary residence. This is
relevant for issues like extradition, legal jurisdiction, and enforcement of criminal
charges.
2. Extradition:
○ Request for Extradition: If a fugitive has fled to another jurisdiction, the
government seeking their arrest may request extradition from the jurisdiction
where the fugitive is currently residing. The domicile of the fugitive can impact
 the extradition process, as some jurisdictions have specific requirements or
limitations for extradition.
○ International Extradition: In international cases, treaties between countries
determine the process for extraditing fugitives. The domicile of the fugitive can
affect the ease and likelihood of extradition.
3. Jurisdiction and Enforcement:
○ Jurisdiction: The jurisdiction where the fugitive is found might have legal
authority over their arrest and potential prosecution, depending on the nature of
the crime and the legal agreements between jurisdictions.
○ Enforcement: Law enforcement agencies need to know the fugitive’s domicile or
current location to effectively pursue and arrest them. This may involve
cooperation between local, national, and international agencies.
4. Legal Implications:
○ Charges and Prosecution: The fugitive’s domicile may impact where legal
proceedings are initiated, especially if they are arrested in a different jurisdiction
than where the crime was committed.
○ Legal Protection: The fugitive might seek legal protection or asylum in their new
domicile, which could complicate legal proceedings and extradition efforts.
5. Practical Considerations:
○ Finding the Fugitive: Locating a fugitive involves investigative efforts to
determine their current domicile. This might include tracking financial
transactions, social media activity, and other indicators of their location.
○ Cross-Border Issues: For fugitives moving between countries, international
cooperation and information sharing are crucial for law enforcement to track and
apprehend them.
6. Case Examples:
○ High-Profile Cases: Notable fugitive cases often involve extensive efforts to
locate and apprehend the individual across multiple jurisdictions. Examples
include international fugitives involved in large-scale crimes or high-profile cases
like Edward Snowden or Julian Assange.
 ○ Domestic Cases: Within a single country, fugitives may move between states or
regions, complicating efforts to apprehend them. This often involves coordination
between state and federal authorities.

Summary

The domicile of a fugitive is a critical factor in law enforcement and legal proceedings, affecting
extradition, jurisdiction, and the enforcement of criminal charges. It involves understanding
where the fugitive is currently residing or has their primary residence, and coordinating efforts to
locate and apprehend them. The legal and practical implications of a fugitive’s domicile can be
complex, especially in cases involving multiple jurisdictions or international borders.

DOMICILE OF FUGITIVE IN INDIA

In India, the concept of domicile for a fugitive involves several legal and practical considerations
related to their residence, jurisdiction, and the enforcement of legal actions.

1. Legal Framework
● Criminal Procedure Code (CrPC): Governs the procedures for arrest, investigation, and
prosecution of criminals within India.
● Extradition Act: Pertains to the extradition of individuals accused of crimes to and from
India.

2. Domestic Legal Process

● Inter-State Coordination:
○ Law enforcement agencies in different states collaborate to apprehend fugitives.
○ State police from where the crime was committed coordinates with the state
police where the fugitive is found.
● Role of Central Agencies:
○ Central Bureau of Investigation (CBI): May assist in high-profile or complex
cases involving fugitives across states.
3. Extradition

● Domestic Extradition:
○ If a fugitive is in another state within India, local police work with the originating
state to effectuate the arrest.
● International Extradition:
○ India seeks extradition based on bilateral treaties or international agreements.
○ The fugitive’s domicile in the foreign country affects the extradition process.
○ Compliance with legal requirements in both India and the foreign country is
necessary.

4. Jurisdictional Considerations

● Original Jurisdiction:
○ Typically, the state where the crime was committed holds jurisdiction over the
prosecution.
● Local Jurisdiction:
○ If a fugitive is found in a different state, local authorities are involved in the
arrest, with coordination from the originating state.

5. Law Enforcement Cooperation

● Inter-State Cooperation:
○ Involves coordination between state police forces for tracking and apprehending
fugitives.
● Central Agencies:
○ Central agencies like the CBI and Enforcement Directorate (ED) may be involved
in major cases.

6. Practical Challenges

● Tracking:
○ Law enforcement uses methods such as monitoring financial transactions, social
media, and intelligence reports.
 ● Legal Protections:
○ Fugitives may challenge their arrest or extradition in the jurisdiction where they
are located.

7. Notable Cases

● Nirav Modi: Accused of financial crimes, faced international extradition efforts.

● Vijay Mallya: Involved in financial misconduct, sought extradition from the UK.

8. Key Takeaways

● The domicile of a fugitive is critical in determining jurisdiction and the enforcement of

legal actions.
● Coordination between state and central authorities, as well as international cooperation, is
essential for handling fugitives effectively.
● Understanding the procedural aspects of extradition and jurisdiction is important for
managing fugitive cases.

Summary

Understanding the domicile of a fugitive in India involves knowing how it impacts jurisdiction,
legal processes, and enforcement actions. Coordination between various legal and law
enforcement agencies is crucial for successfully apprehending and prosecuting fugitives.