INTRODUCTION

When there are issues between the local laws of various nations pertaining to private transactions, private
international law will be applied. This concept is also called the ‘conflict of laws’. This indicates a dispute
or transaction involving one of the following: the relevant jurisdiction, the appropriate court, the
appropriate venue, the appropriate renvoi (transfer of proceedings), the appropriate law, or the recognition
or execution of a foreign decision.

Private international law mostly derives from national laws. Each country has its own laws, and the
application of private international law differs from one jurisdiction to the next. The phrase conflict of laws
is more often used in the US, Canada, and the UK. A wide range of subjects is covered by private
international law, including (international) contracts, torts (lex loci delicti), family issues, the recognition of
judgements, child adoption and kidnapping, real property (lex rei sitae), and intellectual property.

Concept of Private International Law

PRIVATE INTERNATIONAL LAW OR CONFLICT OF LAWS

The term "Private International Law" was coined by Justice Story and was adopted by such famous
authors as Westlake and Foote. It has been used by most of French authors on this subject. The chief
drawback of this term is that it tends to confuse this branch of law with Public International Law or law of
nations. We have seen that the two are basically different from each other. It has been pointed out that the
term "Private International Law" ismisnomer as there is no international law in it but is mainly a branch of
law applied in disputes between individuals in municipal courts. It can be said however, that this branch of
law deals with international private relations or private law problems of international character.

Another term which is equally current is "conflict of laws". It means as a system of law to avoid or
minimise the conflict between different systems of laws as to which system should govern a case, then it
is misleading. There is no conflict in this sense. For example, English Court is seized of a case which
involves a French element as the transaction had taken place in France. It is misleading to think that there
is a struggle between French Law and English Law as to which should govern the case. It is English law
that governs the case. French law is looked into and applied by the English court only if the English Private
International Law directs the court to do so. There may be conflict between the particular rule of French
law and corresponding rule of English law and English Private International Law seeks to avoid that
conflict by choosing the French rule. Consequently, the decision will be the same whether the case arises
in a French court or an English court. This is the true position.

Private International Law

The principles of private law and international law have been combined to form private international law.
By engaging in any type of legal relationship, persons or states acting in the role of individuals freely
invoke private law. The law that develops between several national (or municipal) legal systems is known
as international law.

As Cheshire expressed, “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.”
The existence of several distinct municipal legal systems across the world is what gave rise to private
international law. National legal systems reflect variations in sociocultural values, history, and tradition.
The common law system in the United States is distinguished by a significant focus on court decisions as
a separate source of law. Canada considers this common law system to be bi-jural since it integrates with
Quebec’s civil law system.

Foreign law or facts, factual circumstances, substance, components of a legal cause of action, or fact
patterns, which in one way or another are connected to a foreign legal system or a foreign nation, may be
considered a foreign element. Foreign law is when a court decides a matter using a system of law that is
distinct from the system of law that the court would use in a strictly domestic case.

CASE LAWS
A Division Bench of the Bombay High Court in a case of divorce involving two conflicting legal systems,
Monica Variato vs. Thomas Varia stated that the principles of Private International Law are not universal.
They vary from State to State. What may be applicable in one State may not be applicable in another
State".

In 1952, Indian & General investment Trust Ltd. vs. Raja of Kholikhote, the High Court devoted
substantial part of the judgment to general principles of Private International Law

Nature of Private International Law

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 of Private International Law

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.

Need for Private International Law

When it has selected the proper system of law, private international law has served its purpose. Its
regulations do not directly resolve the conflict, and a French writer once compared this branch of law to
the information desk at a train station where a traveller may find out what platform a train departs from.
By definition, private international law only identifies the applicable law to be used in a case’s resolution.
The following are the duties of private international law:

What situations will provide the court jurisdiction over cases with foreign elements? (selection of a
jurisdiction)
Which law, the local municipal law or foreign law, shall the court apply in making such decisions?
When will it order the execution of a foreign decree or under what conditions will it recognise a foreign
judgement?
Specifically for India, it also involves Indian private international law codification.
In India, there are very few statutory provisions relating to private international law. In this nation, there is
no codification of private international law. Instead, it is dispersed among many statutes, including the
Civil Procedure Code, the Indian Contract Act, the Indian Succession Act, the Indian Divorce Act, the
Special Marriage Act, etc. A few norms have also developed as a result of court rulings.

Functions of Private International Law

Private international laws perform the following functions:

Private international law has traditionally been thought of as a set of impartial principles that designate
the relevant legal system and create international jurisdiction. Private international law may have a
specific advantage because it serves as an impartial arbitrator in international conflicts when the law,
culture, and fundamental principles are different. It controls and coordinates matters of the relevant law
and jurisdiction in a somewhat formal manner while respecting legal variety.
Private international law aids in establishing the case’s maintainability by indicating which courts have
jurisdiction to adjudicate the conflict, i.e. ‘jurisdiction’
Private international law aids in deciding the local or foreign laws to be applied in cases involving private
legal relationships and the existence of foreign content, i.e. ‘choice of law

Jurisdiction
The assessment of when the legislature of a given jurisdiction may legislate or the court of a given
jurisdiction may lawfully adjudicate an issue that has extra-jurisdictional aspects is one of the
fundamental questions addressed under the conflict of laws. This issue is ultimately decided by local law,
which may or may not take into account pertinent international treaties or other supranational legal
notions, as is the case with other elements of conflict of laws. Nevertheless, in contrast to the other two
subtopics of conflicts of law, the theory of jurisdiction has given rise to dependable global standards. This
is because jurisdiction deals with the most complex issue of whether or not it is ever legitimate for a
nation to employ coercive force, as opposed to just how it should.

In general, international law recognises five grounds of jurisdiction. An individual or an incident may be
subject to concurrent jurisdiction in more than one location, they are not mutually exclusive. The following
are those five grounds:

Territoriality: A nation has the authority to control anything that takes place inside its borders. The
territoriality concept enjoys the broadest support among jurisdictional grounds in international law
(subject to various complexities relating to actions that did not occur wholly in one country)
Passive personality: A country has jurisdiction over an event that injured one of its citizens.
Nationality (or active personality): A nation has jurisdiction over a wrong committed by one of its citizens.
Protective: A nation has the authority to resolve risks to its own security (such as by pursuing
counterfeiters of official documents).
Universal: Because a given behaviour is inherently condemned by the world community, a nation has
jurisdiction over it (such as violent deprivations of basic human rights). Of the five jurisdictional bases,
this is the one that generates the greatest debate.

Choice of law
Courts go through a two-stage process when presented with a choice of law issue:

The law of the forum (lex fori) shall be used by the court in all procedural matters, including regulations
regarding the choice of law;
The laws with the strongest connections, such as the law of nationality (lex patriae) or the law of habitual
residence, are applied after taking into account the circumstances that connect or relate the legal
concerns to the laws of possibly relevant nations (lex domicilii).
The civil law counterpart of the common law lex domicilii test is the notion of habitual residency. The
plaintiffs’ capacity and legal standing will be established by the court. The court will decide which state’s
legislation (known as the lex situs) will be used to resolve all title-related disputes. When the issue is
substantive, the ruling law will frequently be the law of the location where the transaction occurs or of the
event that gave birth to the dispute (lex loci actus), but the appropriate law has become a more popular
option.

Difference between Private International Law and Public International Law

1)The body of laws known as public international law governs interactions between sovereign states and
other international personalities. On the other hand, private international law governs interactions
between Natural or Legal Persons from two separate States.
2)International conventions and treaties result in public international law regulations. On the other hand,
State legislation establishes the norms governing private international law.
2)International pressure and fear, such as the severing of diplomatic ties and the imposition of sanctions,
are used to enforce public international law. On the other hand, the relevant State executive is in charge of
enforcing private international law.
4)Public International Law does not have an established court. On the other hand, private international law
courts have predetermined rules.
5) For all States, Public International Law is the same. On the other hand, state law and private
international law are distinct.

Theories of Private International Law

The five main schools of thought in private international law. These theories include the Statute Theory,
International Theory, Territorial Theory, Local Law Theory and Theory of Justice. Each of these theories is
further explored, along with how it may be used in real life:

Statute theory

It can be argued that the statute theory is the most traditional theory of private international law. Bartolus
invented it in Italy in the 13th century. He is frequently cited as this theory’s founder. In order to reconcile
problems between the city states’ laws and the then-existing Italian law, he created the statute theory.
Depending on the legal subject, the statutes were separated into two sections called Statuta Personalia
and Statuta Realia.

Statutes pertaining to individuals (Statuta Personalia): These laws dealt with people and were applicable
to those who resided in a certain region. Even when these domiciled individuals travelled to other
territories, the laws of that particular area nevertheless applied to them.
Statutes pertaining to things (Statuta Realia): These statutes dealt with objects and were primarily
territorial in scope.
Mixed Statutes (Statuta Mixta): Bartolus added a third category to the statutes, nevertheless. Rather than
people or objects, this article dealt with acts. This sub-head would cover things like the creation of
contracts or agreements, for instance. These were applicable to all actions taken in the area that passed
the relevant legislation, even when litigation over those actions took place in another jurisdiction.

Use of Bartolus’s statute theory

While the aforementioned statutory idea appears to be clear-cut and uncomplicated in principle. However,
when the theory is used in practice, it reveals several real-world issues that do not exist in theory. It is
difficult to determine if anything falls under personalia or realia in such a situation. It fits well within the
laws dealing with individuals because it includes people and their private affairs. However, it also makes
land transferable, making it eligible to be covered by laws pertaining to objects. To solve this issue,
Bartolus distinguished between the two based on the linguistic structure of the legislation. If a person is
mentioned in the statute’s wording first, it is deemed to come under personalia. If an object is mentioned
first, it is said to be under realia.

Criticism of statute theory

The three maxims Ulric Huber, a Dutch jurist, established for the statute theory during the 17th century as
the law developed. He believed that these maxims might be used to create an all-encompassing
framework for settling legal disputes.

They were as follows:

The rules of a State are inviolable, but only inside the boundaries of its sovereign territory.
Everyone who enters a sovereign’s realm, whether temporarily or permanently, is considered one of his
subjects and is subject to his laws as a result.
Due to comity, however, each sovereign acknowledges that a law that has already been implemented in
the nation of its origin should continue to be in effect elsewhere, provided that doing so would not harm
the subjects of the Sovereign by whom its recognition is sought

International theory
Another term for this hypothesis is the Von Savigny theory. The older statute argument was categorically
rejected by the German jurist in his work on Conflict of Laws, which was published in 1849. The statute
theory, in his opinion, is unfinished and unclear.

Savigny argued for a more scientific approach, stating that the challenge is to identify the local law that, in
its natural nature, each legal connection belongs to rather than classifying laws according to their objects.
Each legal relationship has a natural seat in a specific local law, and when that law diverges from Forum
law, it is that local law that must be followed. In this situation, the seat refers to the location of the object
or, in the case of a person, where he is domiciled. This theory’s most notable strength is its attempt to
resolve each disagreement in light of its unique circumstances and the most pertinent body of law. It
encourages adherence to the rules of the legal system of which the parties or items in question are
logically a part.

Application of international theory

Savigny has outlined the four main factors that influence the natural seat. Which are:

The place of residence of a party to a legal relationship.

The location of an item that is the subject of a legal relationship.
The location where a legal act is performed.
The location of a Tribunal.
It is only normal for there to be some kind of contractual arrangement between the parties engaged in
every legal connection. Therefore, a legal remedy must be sought if any party to such an agreement
should suffer legal injustice.

Criticism of the international theory

The fundamental argument against this idea was that Savigny presupposed that the laws of all nations
were uniform. This hypothesis is less trustworthy since there isn’t as much homogeneity in the real world.
This is the case because it will be challenging to identify the natural seat of the legal relationship in the
absence of such consistency. For instance, a breach of a marriage contract may fall under contract law in
certain nations while being regarded as a tort in others. It might be difficult to determine the natural seat
of the continuing legal relationship in such circumstances.

Territorial theory

The territorial theory, also called the theory of acquired rights, was established when Dutch jurist Huber
first proposed it in the 17th century since it is based on the idea of territoriality. Common attorneys like
Dicey and Beale in England and the United States, respectively, developed it later.

In the simplest terms possible, the argument is that the courts of sovereign nations do not implement
foreign law but only acknowledge the effects of foreign law’s operation. This implies that national courts
only implement foreign law to the degree that the sovereign has given them permission to do so.

Application of territorial theory

In essence, it implies that a judge is not permitted to arbitrarily apply any foreign law or ruling to any
matter he is adjudicating. In all circumstances that call for his judgement, he must fundamentally apply
the law of his country.

The Acquired Rights or Territorial Theory seeks to balance the necessity for private international law with
the territoriality of the law. Sir William Scott used it in the case of Dalrymple v. Dalrymple (1902). The Hon.
Sir William stated that he was to take into account Miss Gordon’s overseas rights, regardless of whence
they originated. The idea, in particular, does not permit any court to consider any law other than the
fundamental law of the nation.

Criticism of the territorial theory

Dr Cheshire has harshly criticised this specific notion, calling it “unnecessary,” “untrue,” and “unhelpful.”
Currently, it also doesn’t receive much support that’s noteworthy. Even though different countries’ laws
tend to be distinct from one another, it becomes very difficult to compare them. Many nations, like Nigeria,
where the British formerly held sway for a very long time, still adhere to English law, making their legal
system compatible with the British. However, this is not feasible in every other country. Foreign rulings and
their application constitute a component of the legal system and cannot be disregarded.

Local law theory

The territorial idea has been expanded into the Local Law theory, which was put out by Walter Wheeler
Cook. Cook emphasised that governing laws should not be developed from the logical arguments of
philosophers or lawyers, but rather by looking at prior court rulings. In essence, he emphasised the value
of precedents. Cook asserts that each court must effectively create its own set of laws based on earlier
rulings. Contrary to territorial theory, it considers the laws of the relevant foreign nation out of social need
and practical convenience.
Application of local law theory
The local law states that there is absolutely no reason for any court to reverse a decision made based on
local law just because there is a difference with foreign law. Even though the etymologies of all the
overlapping rules are not the same, they are all somewhat cohesive in their interpretation and application,
and this cannot be denied. Because a nation’s law serves as its ultimate compass, relying on precedents
might be considered a legitimate basis for enforcing the law.

Criticism of local law theory

This local law theory, in the opinion of Cheshire, North, and Fawcett, does not provide a foundation for the
system of private international law. Because it is a technical dispute that neither clarifies nor resolves
anything to tell an English judge who is going to consider a matter with a foreign element that whatever
conclusion he makes, he must impose only the law of the Forum. It offers absolutely no guidance about
the parameters in which he must take the foreign law into account. However, while precedents can be a
useful tool for resolving disputes, they shouldn’t be the primary consideration for making judgments in the
future. If a precedent is impeding justice and not living up to its full potential, it should not be enforced any
longer. A court should also be prepared to overturn precedent if it later determines that it was the cause of
an injustice.

Theory of Justice
As Dr Graveson, the founder of the theory of justice once expressed, “One of English legislative and
judicial justice, based on what English statutes say and what English judges do in cases to which the
conflict of law applies. It is thus both pragmatic and ethical.” Dr Graveson created the theory of justice
intending to provide genuine justice as its only tenet. Ideally, according to Dr Graveson, his theory
shouldn’t be applied as a rigid rule in every situation. Rather, his major goal is to administer pure justice
while taking previous decisions, morality, and equality into consideration. Graveson acknowledges that his
hypothesis is not flawless because there are numerous situations that are impossible to describe using
absolutes, and because empirically formed rules in this area of law, like those in other areas of the law,
can occasionally result in very difficult specific cases. It leads to the key conclusion that no one theory can
adequately address the issue of what constitutes the theoretical underpinnings of private international
law.

The main problem in this theory is that one must apply the laws of at least one foreign country, but none is
willing to concede to such laws. Giving down to foreign laws and enforcing them when resolving disputes
merely amounts to one sovereign losing his sovereignty in front of anothe

Introduction of Renvoi

The Doctrine of Renvoi is one of the significant and fundamental subjects of Private International Law or
Conflict of Laws. Again, the Court sees that the issue will be chosen as per the law of another nation, it is
when regulation of renvoi assumes its job in taking care of the issue. It’s a method to take care of the
cases in which there exists a foreign element.

Meaning of the Renvoi

The Doctrine of Renvoi is the process by which the Court adopts the rules of a foreign jurisdiction with
respect to any conflict of laws that arises. The idea behind this doctrine is to prevent forum shopping and
the same law is applied to achieve the same outcome regardless of where the case is actually dealt with.

“Renvoi” originates from the French “send back” or “return unopened”. The “Convention of Renvoi” is the
procedure by which the Court embraces the principles of an foreign law as for any contention of law that
emerges.
Types of Renvoi
Under the watchful eye of a judge resort to the principle of renvoi, there is an answer to the use of internal
law in particular. In any case, if there was no space for use of internal law, at that point the judge may
apply the best possible kind of renvoi.

Single Renvoi
Nations, for example, Spain, Italy, and Luxembourg work a “Single Renvoi” framework. For instance, where
a deceased benefactor, who was a French national, was an occupant in England yet domiciled in Spain
leaving moveable property in Spain, the Court may need to consider which authoritative discussion will
apply to manage the property under progression laws.

In single renvoi, a judge of a country is faced with conflicting rules of his country and sends the case to
the foreign country but according to the law of that country, the case is referred back to his country and
his country accepts sub reference and applies the law of his country.

In re Ross
Facts

The testatrix( the person who writes the will) was a British national, who was domiciled in Italy and had
written a will leaving the land in Italy and the movables both in Italy and England. Where will was valid in
England but not in Italy because she had not left half of her property to her son.

Judgment
Where the Court had applied the law regarding where the property is situated. The movables in Italy
because the testatrix (the person who writes the will) holds the Italian domicile. As a result, the Judge had
applied the Italian law with respect to the immovable property situated in Italy. As Italy did not accept the
renvoi based issue was decided in accordance with English law.

Forgo case
Facts
A Bavarian national died in France, where he had lived since the age of 5. Where under the Bavarian law
the collateral relatives were entitled to succeed, but under the french law the property will be passed to the
French government but not to the family members.

Judgment
The French Court held that it would decide the inquiry by applying Bavarian law however the State
contended that the Bavarian Courts would apply French law, and the French Courts ought to do otherwise.
The case was ruled for the French state, and the reference here was to the Bavarian guidelines of
contention.

Double or total renvoi

Countries like Spain, England, and France follow double renvoi. For instance, let’s consider the
accompanying case whereby a deceased benefactor, an Irish national, residing in Spain, however,
domiciled in Italy, died and left some immovable property in France. France, being the law of the gathering
(where the advantages are arranged) will analyze the law of the person who died. Spanish law watches
the law of the deceased nationality which is Italy. Italy, as a ward that just works a solitary renvoi
framework, won’t acknowledge the Double Renvoi and almost certainly, right now will apply Italian law.

Re Annesley Case
Facts
An English woman was domiciled in France for 58 years at the time of her death. According to the
principles of English law, she was domiciled in England. Before her death, she made a will, where the will
was valid as per the English law, but it was not valid as per the French law because she did not leave 2/3rd
of her estate to the children. According to the French law 2/3rd of the property goes to their heirs. Where
the France Court did not issue any authorization certificate that she was a French domicile which was
necessary for the acquisition of domicile.

Judgment
The Court said that it had applied the French law as she was holding the French domicile at the time of her
death. Based on that, the English Courts refer the matter to the French law as the law of domicile and the
French law also referred the same back to England as single renvoi is recognized in France. Therefore, the
French Court would accept the Remission and have applied the Internal law.

No Renvoi
Some countries like Denmark, Greece and the US do not accept double renvoi.

DOMICILE

Domicile is a legal concept. It is a connecting factor which links a person with a particular legal system.
The concept has played a significant role within the English conflict of laws since the middle of the 19th
century. A tentative definition of 'domicile' would be 'permanent home'
Lord Cranworth in Whicker vs. Hume stated that 'By domicile we mean home, the permanent home, 'And
if you do not understand your permanent home, I'm afraid that no illustration drawn from foreign writers or
foreign languages will very much help you do it."

RULES REGARDING DOMICILE

(a) No person can be without a domicile.
(b) A person cannot at the same time have more than one domicile (at least, no more than one for the
same purpose)
(c) An existing domicile is presumed to continue until it is proved that a new domicile has been acquired.
(d) The question of where a person is domiciled is determined solely in accordance with English law and
(e) The relevant standard of proof is the civil standard of proof.

There are three forms of domicile:

(a) Domicile of origin, which is the domicile attributed at the time of birth;
(b) Damicile of choice, which is the domicile a competent person may acquire during his lifetime, and
(c) Domicile of dependency, which means that the domicile of the dependent person is dependent on the
conduct of another.

DOMICILE OF ORIGIN

Domicile of origin is assigned by law to a child when it is born. The domicile of a legitimate child is the
domicile, of whatever sort, his father had at the time of the child's birth. An illegitimate child takes its
domicile of origin from its mother's domicile at the time of its birth but this is somewhat artificial, as the
issue of legitimate status may itself depend on domicile. The domicile of origin acts as a fall back,
whenever there is no other domicile, it comes to fill the gap. It avoids assuming the continuance of an
abandoned domicile.

Udny vs Udny
Colonel Udny was born in Leghorn in 1779 (where his father held a consular post) with a Scottish domicile
of origin. He joined the Guards in 1797 and acquired a property in London, where he lived with his family
until 1844. He then left for France to avoid pressing creditors but did not acquire a domicile of choice. At a
later date, he fathered a child and then married the mother. In proceedings before the Scottish courts, the
question arose as to whether the child was legitimated per subsequens matrimonium.

In giving judgment for the House of Lords, Lord Westbury stated as follows

It a settled principle of law that no man shall be without a domicile, and to secure this "It is result the law
attributes to every individual, as soon as he is born, the domicile of his father if he be legitimate this has
been called the domicile of origin and is involuntary."

In considering the particular nature of the domicile of origin, Lord Westbury further noted:

as the domicile of origin is the creature of law, and independent of the will of the party, it would be
inconsistent with the principles, of which it is by law created and ascribed, to suppose that it is capable of
being by the act of the party entirely obliterated and extinguished.

DOMICILE OF CHOICE

Every person who is over the age of majority, and is not mentally incapable, is regarded by English law as
able to acquire a domicile of choice by residing in a country with the present intention of making it his
permanent home. There are two requirements (a) the fact of residence (factum) and (b) intention to reside
(animus).

Winans vs. AG

William Winans was born in Maryland. He built railways in Russia and also constructed gunboats against
England. He, then, became affected with tuberculosis and being advised by doctors to reside in England
and lived there all his life at various places until his death. Question dealt was whether he had the
intention of making England his permanent home. House of Lords held that there was no evidence to
show that Mr. Winans had abandoned his domicil of origin. There was no intention from winans to stay in
England other than getting treatment for his disease.

PRISONERS

The essence of imprisonment is that the individual is deprived of his personal freedom to move from
place to place. In these circumstances, the prisoner will continue to retain the domicile that he possessed
before his imprisonment.

REFUGEES

It is difficult to say the same with regard to refugees who flee the country of their birth out of necessitous
circumstances. They may lodge a hope in their minds to return to the country of origin when it becomes
safe to do so. It may be said that there is a presumption against the change of domicil in such cases. It
may equally be said that what is dictated by necessity in the first instance afterwards becomes a matter
of choice.

FUGITIVES FROM JUSTICE

A fugitive from justice may acquire a domicile of choice if it is clear that he intends to establish links with
his new country, it is open to argument as to whether the mere flight from justice raises a presumption in
favour of the acquisition of a fresh domicile. In certain instances, there may be value in examining
whether the individual has remained in a particular country long after he could have returned home in
safety. Where there is evidence that England is being used as a staging post in circumstances where the
fugitive may move again to avoid extradition, then a domicile of choice is not acquired.

DOMICILE OF DEPENDENCE

At birth, a child receives two domiciles, origin and dependence, which are initially, in the vast majority of
cases, the same. The domicile of origin will be overlaid by the domicile of dependence. While the domicile
of origin remains constant throughout life, the domicile of dependency changes with the domicile of the
person on whom the child is domiciliary dependent.

As per English law, there were three categories of persons that were regarded as being subject to a
domicile of dependence, namely:

a) married women;

(b) children; and

(c) Lunatic.

As per common law, the rationale was that such persons lacked the capacity to acquire a domicile of
choice. The law on the subject was changed by the Domicile and Matrimonial Proceedings Act 1973 and
these changes will be considered below.

MARRIED WOMEN

As per English, rule was that a married woman acquired the domicile of her husband and her domicile
would change with that of her husband. This rule has now been abolished in England by section 1 of "The
Domicile and Matrimonial Proceedings Act of 1973 which states that the domicile of a married women at
any time on or after January 1, 1974 shall instead of having the husband's, shall chose her domicile as
that a independent person.

Lord Advocate vs. Jaffrey

A husband and wife were domiciled in Scotland. The husband left to live in Queensland with the consent
of his wife. He contracted bigamous marriage in Queensland. The wife remained in Scotland where she
died. Proceedings were brought in Scotland to determine the domicile of the wife. On appeal to the House
of Lords, it was ruled that the wife was domiciled in Queensland, even though she had never visited there.

CHILDREN

The general rule at common law was that, upon birth, a legitimate child acquired the domicile of its father,
while an illegitimate child acquired the domicile of its mother. As a dependent domicile, this would change
with that of the parent, so that a legitimate child born to a father domiciled in Italy would acquire a
domicile of origin and dependence in Italy but, if the father then acquired a domicile of choice in France,
the child would then acquire a domicile of dependence in France. The operation of the rules is not without
difficulty because the question of whether a child is legitimate or not is itself referred to the lex domicilii
so that, in such circumstance, it will be necessary to come to a conclusion on the validity of the marriage
of the parents. In respect of particular cases concerning children, the position can be summarised as
follows:
(a) After the mother of an illegitimate child has died, or both parents have, in the case of a legitimate child,
the child will continue with the domicile of dependence until he is capable of acquiring an independent
domicile;
(b) A child is capable of acquiring an independent domicile when reaching the age of 16 or if he marries
under that age,
(c) In cases of a legitimate child whose the parents are living apart and where the child has a home with
the mother, then the child will acquire the domicile of the mother and, in such a circumstance, if he lives
with the father he will acquire the domicile of the father,
(d) In situations where the father dies, the domicile of the child will normally follow that of the mother,
save in those situations where the mother leaves the child with a relative when moving to a new country
(e) In the case of an adopted child, such a child will treated as if he were the natural child of his adopted
parents. Thus, from the date of adoption, if not earlier, he will have the domicile of his parents.

LUNATIC

As with other children, an insane child also has a domicile of origin communicated at the time of birth. Is a
lunatic capable of acquiring a domicile of dependence? It is an agreed principle that the domicile of a
lunatic cannot be changed either by himself, as he cannot have the requisite intention) or by the person to
whose care he has been entrusted. If a person becomes a lunatic after becoming a major and after
acquiring a domicle of choice he retains this domicil during the period of lunacy, as a general principle.
This is so because he is incapable of either acquiring a fresh domicil or of losing an existing domicil. It
has been suggested if a person is insane continuously both during his infancy and after he reaches the
age of 16, his domicil will change with that of his father. On the other hand, if a person becomes a lunatic
after the age of 16 the domicil he had at that time could not be changed as to allow this would do great
damage to the "interests of others". This distinction has been characterized by Cheshire as irrational. The
correct solution, according to him, would be that the court of protection should be entitled to change the
lunatic's domicile if this appears to be for his benefit.
This solution cannot be seriously objected to as the paramount consideration should be the interest of
the lunatic and not the interests of others.

CONTRACT

The contact in conflict of laws involves many transactions in trade and commerce. The contracts are
more complex when there is an involvement of foreign element; it is difficult to determine the rights and
liabilities of the parties. For instance the contract may be signed in one country, the subject matter of the
contract in another country, the place of the performance in another country and the domicile of the
contracting parties may be in another country, so in that case there is a involvement of four different laws
of four different countries involved in the contract, so there is a conflict of laws exist there to determine
which of the following law can be applied to determine the rights and liabilities of the parties in the
contract. The nature of problem in contractual obligation is ascertaining the proper law due to diverse
connecting factors.

FORMATION OF CONTRACT:-

The formation of contract contains the essentials such as the offer, acceptance, consideration, legal
object, capacity but should not contain any vitiating factors such as fraud, mistake, misrepresentation etc.
the agreement can be seen in two ways i.e. factum of the agreement(offer and acceptance) and reality of
the agreement(personal laws of the parties).

The validity of contract is of two types formal and essential validity:-

FORMAL VALIDITY:-
The concern in this is not with procedural formalities such as status of fraud but with non- procedural
formalities such as a contract for the conveyance or creation of a legal estate in land having to be in a
deed. It is likely that compliance with either the lex loci contractus or the putative proper law will suffice to
formally validate the contract.

ESSENTIAL VALIDITY
The proper law determines whether the contract or its terms, including exemption clauses, are valid and
effective. If a contract made in England is procured through pressure which amounts to duress, it is
voidable by the innocent party:

INTERPRETATION:-
Whereas interpretation of the terms of a contract is usually governed by its proper law, it is permissible for
the contracting parties themselves to nominate one legal system to govern the contract and to specify
that another system be used to interpret it, i.e. 'the parties may well contemplate that different parts of
their contract shall be governed by different law'.

PERFORMANCE OR DISCHARGE OF OBLIGATIONS:

The proper law is to determine whether the parties obligations have been discharged.

CAPACITY:-
The three possibilities are,
Capacity can be governed by;
(1) the lex domicilii of each contracting party (unreasonable); or
(ii) the proper law of the contract or
(iii) the lex loci contractus (which may be entirely fortuitous).

CONNECTING FACTORS:-

Two connecting factors have been appropriate to govern the law of a contract, viz;
(i) Lex loci contractus (law of the place where the contract was made);
(ii) Lex loci solutionis (law of the place where performance of the contract was due.)
However, each of these connecting factors has its limitations.

DOCTRINE OF PROPER LAW:-

The law chosen by the parties is often referred to as the proper law of the contract' and this choice can be
express or implied. If there is no choice then governed by the most closely connected test. Thus the law
by which the contract is intended to be governed is called proper law contract.
Article 3 (1) of the convention says: "A contract shall be governed by the law chosen by the parties. The
choice must be express or demonstrated with reasonable certainty by the terms of the contract or the
circumstances of the case. By their choice the parties can select the law applicable to the whole or a part
only of a contract."

Choice is of two types express and implied choice. Both are mentioned in Article 3. In express choice the
parties themselves choose the proper law like lex domicille, lex loci contractus etc.. Whereas in implied
choice it is determined from the terms of the contract, nature, circumstances then the proper law is
determined.
The term 'proper law' was clearly defined in Indian General Investment Trust vs. Raja of Kholikote as "the
proper law of contract means the law which the court is to apply in determining the obligation under the
contract".

The matter of ascertaining proper law depends on the intentions of the parties to be ascertained in each
case on consideration of:
a) the terms of the contract,
b) the situation of the parties and generally on
c) all surrounding facts from which the Intention of the parties is to be gathered.

ADVANTAGES AND DISADVANTAGES OF PROPER LAW DOCTRINE:

The Parties have the ultimate freedom and no restriction to select the law in which their
rights and liabilities will be governed unless it is legal and done with bonafide intention and
not chosen to avoid any public policy.
The Biggest disadvantage is that when the law is not expressly stated, intention has to be presumed or
imposed upon the parties which introduce an element of uncertainty in the proper law.

EXPRESS CHOICE

In Vita Food Products Inc. vs. Unus Shipping Co. Ltd. (1939) In this case, even though the contract is
mostly connected with just one country, the court chose to go with the law in which the parties have
chosen expressly and mentioned despite it has no connection with the contract. Lord Wright an English
jurist said that: 'where there is an express statement by the parties to select the law of contract, it is
difficult to see other criteria to determine proper law provided that the intention expressed is bona fide and
legal, and provided there is no reason for avoiding the choice on grounds of public policy' the intention of
the parties as to the choice of law prevails'.

IMPLIED CHOICE

When the intention regarding governing law is not expressly stated, intention to be inferred from the terms
and nature of the contract, circumstances and the inferred intention determines the proper law of
contract. The court should find out the implied intention to govern the contract, in the absence of such
implied intention the court has to find out the intention. The major task of the court is that they have to
find the intention under which the reasonable man and a prudent man under the same circumstances
would have did, the judges should have placed himself in the place of the reasonable man and find out the
intention of the parties

LIMITATIONS:-

The limitation over determining the proper law is explained with Mandatory rules and most closely
connected test.

MANDATORY RULES:-

Article 3(3) of the convention speaks about mandatory rules. The purpose of this provision is to prevent
evasion of mandatory rules of law. This can be of any rules based on public policy or invalidate provision.

MOST CLOSELY CONNECTED TEST:-

In the absence of an expressed or an implied choice of law, the contract shall be governed by the law of
the country with which it is most closely connected as per Art.4 (1) of the convention.
 The factors which help the court determine the proper law of the contract are those with which the
transaction had its 'closest and most real connection".

The following factors are considered by the Court when deciding this issue:
1. The form of the contract
2. The place where the contract was concluded.
3. The place where the contract is to be performed.
4. The parties place of residence and business.

CASE WHERE THE PROPER LAW IS NOT THE ONLY LAW APPLICABLE

The increasing tendency today in English law is to follow the view that all aspects of contract should be
governed by proper law in the objective sense i.e., the law of the country with which the contract is most
substantially connected. The subjective theory of proper law (proper law is the law chosen by the parties,
irrespective of existence of connection with the contract) is not gaining ground. The view expressed by
Cheshire that "the courts should, and do have a residual power to strike down, for good reason, choice of
law clauses totally unconnected with contract," has a good deal of supporters. Be that as it may, it should
be borne in mind that there are a few areas in the law of contracts where some other law than the proper
law becomes relevant. The more important these are stated below among:

(a) FORMAL VALIDITY

In earlier times jurists advocated the exclusive application of Lex loci contractus (the law of the place
where the contract is made) to determine the formal validity of contracts.
According to this view, local formalities are compulsory, and if a contract fails to satisfy the formalities
prescribed by the law of the place where the contract is made the contract is unenforceable. But now the
generally accepted view is that compliance with local formalities is not compulsory and its absence by
itself will not affect the enforceability of contract. Nevertheless, lex loci contractus still remains important
because, as regards formal validity, the observance of formalities prescribed by it will be sufficient.

In other words, compliance with the local from is sufficient, though in other respects the contract may be
totally unconnected with the place where the contract is made. Thus the proper law of a particular
contract may be Indian law; but the contract might have been made in Germany. In such a case the
contract is formally valid if it complies with the forms prescribed by the German law. Failure to comply
with the formalities required by the Indian contract act will not render the contract void. Thus the contract
is formally valid if it satisfies either the formalities of lex loci contractus or the formalities of the proper
law.

(b) ILLEGALITY:

It is not possible to decide the question of illegality of a contract by referring exclusively to proper law; it
may be necessary to take into account other legal systems also. For example, an English court will not
enforce a foreign contract regarded as immoral, although it may be perfectly valid according to the proper
law. Same is the case when a foreign contract offends against an English rule of public policy. It may be
said that in the matter of illegality of contract, in addition to proper law. Thelex fori, Thelex loci contractus
and The lex loci solutionis (the law of the place of performance) are relevant and should be taken into
consideration.

HERE, WE MUST EXAMINE THE FOLLOWING FIVE PRINCIPLES:

(1) ILLEGAL TO PROPER LAW:

A contract that is illegal by its proper law cannot be enforced in England. This is so even if the illegality is
based upon the revenue laws of that legal system.

(2) CONTRARY TO ENGLISH PUBLIC POLICY:

A foreign contract, through valid by its proper law, will not be enforced in English if the contract violates a
fundamental public policy of English law, as lex fori, English courts have on this ground, refused
enforcement of champertous contracts involving collusive and corrupt arrangements for divorce,
contracts involving trading with the enemy and contracts for breaking the law of a friendly country. The
modern tendency, however, is to confine the doctrine of public policy within narrow limits in private
international law cases. As pointed we out by Cheshire, it is only rarely that contracts valid under proper
law are denied enforcement in England as being contrary to the public policy of the lex fori.

When a foreign contract is merely void but not illegal by the English lex fori, can it be enforced in an
English court? For instance, wagering contracts are void in English law, but not illegal. The position is that
if the contract is valid by its proper law, it is enforceable in England notwithstanding its infringement of the
English law, as lex fori. Thus money won at play or lent for play is recoverable in England, if the same is
recoverable by the law of the place where it was won or lost.

(3) ILLEGAL BY LEX LOCI CONTRACTUS

According to Cheshire: a contract that is valid by its proper law does not become unenforceable in
England merely because it is illegal according to the law of the place where the contract is made. The
same position is taken by Morris; but Graveson: expresses the view that "English law will, probably not
enforce a contract illegal by the law of the place of making". So far as judicial opinion is concerned, there
are dicta strongly supporting both the views. On practical consideration, however, the view taken by
Cheshire is more acceptable, because in the modern conditions of commerce, it is inadvisable to apply
rigidly the lex loci contractus in determining the question connected with the enforceability of contracts.

(4) ILLEGALITY BY LEX LOCI SOLUTIONIS (LAW OF THE PLACE OF PERFORMANCE)

If a contract is illegal by the lex loci solutionis, can it be enforced in an English court? When the lex loci
solutionis and the proper law are the same, there is no difficulty and the contract is clearly unenforceable.
But when the lex loci solutionis and the proper law are different the question is not susceptible of a clear
cut answer.

TORTS

When an action is brought upon a tort committed in a foreign country, the question arises as to may say,
there are three theories: They are (i) theory of lex forl, (ii) theory of lex delicti and (iii) theory of proper law
of tort. We may examine briefly eachof these three theories.

LEX FORI: LAW OF THE FOREM

The theory that liability in tort should be governed by lex foris of German origin, advocated by Savigny in
1849. Although not adopted by English law as such, it has, as will be seen. profoundly influenced the
development of English law. The fundamental defect of the theory is that a defendant would be held
responsible if his act is actionable according to the lex fori, although it is quite innocent according to the
law of the country where the act was committed. Moreover, if the lex fori were the sole deciding factor, the
plaintiff would be free to choose a forum most favourable to him and this may encourage what is called
forum-shopping.

LEX LOCI DELICTI COMMISSI:

The lex loci delicti commissi is the Latin term for "law of the place where the tort was committed in the
Conflict of Laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law
element where a difference in result will occur depending on which laws are applied. When a case comes
before a court and all the main features of the case are local, the court will apply the lex fori, the prevailing
municipal law, to decide the case. But if there are "foreign" elements to the case, the forum court may be
obliged under the Conflict of Laws system to consider:

• whether the forum court has jurisdiction to hear the case

• it must then characterise the issues, i.e. allocate the factual basis of the case to its relevant legal
classes; and
then apply the choice of law rules to decide the lex causae, ie, which law is to be applied to each class of
issue or to the case as a whole.

The lex loci delicti commissi is one of the possible choice of law rules applied to cases arising from an
alleged tort. For example, suppose that a person domiciled in Australia and a person habitually resident in
Albania, exchange correspondence by e-mail that is alleged to defame a group of Kurds resident in Turkey.
The possibly relevant choice of law rules would be:

*)the lex loci solution is might be the most relevant but this might be difficult because three laws might
equally apply, i.e. the parties themselves corresponded from two states but the damage was not
sustained until the correspondence was published in Turkey;

*)he proper law which is the law which has the closest connection with the substance of the wrong
alleged to have been committed; and

*)the lex fori which might have public policy issues if, say, one of the paris was an infant or there was the
possibility of multiple jurisdictions having involve ent over a world-wide internet issue.

THE PROPER LAW OF THE TORT

The theory of the proper law of the tort acquired an increasing degree of continence. Inboard terms, it was
argued that in most instances one would not need to! yond the place of the wrong, but in certain cases
one should choose the law which, on policy grounds, seems to have the most significant connection with
the chain of circumstances in the particular situation. It was argued that such an approach wo flexible and
it was claimed the experience with the doctrine of the proper law had shown that the concept w workable.
Facts and be more contract

Further, it was argued that the expansion in the forms of tortious action in i post-war period made it an
appropriate model because of its inherent flexibility. The law the State which had the most significant
relationship with the occurrence and the parties determine their rights and liabilities. Thus, in a typical
case, the law choser would be denestent on the social environment and this would be determined by
weighing a number of fa (a) the place of the injury;
(b) the domicile and nationality of the parties,
(c) incorporation and the place of business; and
(d) the place where the event ceten, occurred. such as: place of die wijtury

MARRIAGE

FORMAL VALIDITY: THE PRINCIPLE OF LOCUS REGIT ACTUM:

It has been settled since 1725, that formalities of marriage are governed by lex loci celebration is, law of
the place where the marriage was celebrated. The maxim is locus regit actum, i.e.the place governs the
act. In the words of Cheshire "there is no rule more firmly established in private international law than that
which applies the maxim locus regit actum to the formalities of marriage". If a marriage is good by the law
of the country where it is effected, it is good all the world over even though the ceremony would not be
recognised in the country where the parties are domiciled.

FORMAL VALIDITY OF MARRIAGE:

In order to determine the formal validity of marriage the English court will apply Lex loci celebrationis (law
of the place where marriage was celebrated). A marriage which is formally valid according to the law of
the place where marriage was celebrated would be declared valid by the English court even though it is
invalid according to English law.

DISTINCTION BETWEEN FORMAL VALIDITY AND ESSENTIAL VALIDITY:

The statement made above that a marriage good by the lex loci celebrationis is good all the world over is
correct only with regard to formal validity. Essential validity of marriage is governed be entirely different
principles. Therefore the question whether a particular requirement relates to formal validity or essential
validity is supremely important.

EFFECT OF CHANGES OF CHANGES IN LEX LOCI CELEBRATIONIS

The formalities required by the lex loci celebrationis may be altered by change introduced in law. It seems
clearly that the lex loci at the time of celebration of marriage once for all
determine formal validity, the married status unaffected by changes introduced subsequently.
Otherwise the relationship between parties will remain insecure.
Although a marriage valid by lex loci celebrationis at the time of marriage will not be invalidated by
subsequently changes in that law, the conversey may not be correct. A marriage which does not comply
with the formalities prescribed by the lex loci at the time of marriage may be validated by subsequently
retrospective changes in the lex loci. Though originally invalid by the local law, if such marriages are
validated by retrospective changes in the local law, the principles locus regit actum is satisfied.

Starkowski vs. Attorney General.

Two Roman Catholic domiciled in Poland were married in May 1947 in Roman Catholic Church in Austria
without a civil ceremony. After a few weeks, an Austrian legislation validated such marriages
retrospectively. So, the marriage was registered in 1949 by which time the parties had acquired an English
domicile. By 1950, the wife married another man in England. The issue before the House of Lords was
whether the second marriage in England was valid, this depend upon the validity if the Austrian marriage.
The Austrian marriage was valid and therefore the English marriage was bigamous void. The Court
accepted the retrospective Austrian legislation.

EXCEPTION TO THE RULE OF LOCUS REGIT ACTUM:

There are certain exceptions to the rule that a marriage which does not satisfy the formal requirement of
lex loci celebrationis is invalid. Under the following circumstances a marriage is regarded as valid even
though it has failed to observe the formal requirements of lex loci celebrationis.

a) THE TWO STATUTORY EXCEPTIONS:

By virtue of the foreign marriages act of England, a marriage solemnised before a marriage officer in a
foreign country would be valid if one of the parties is a British subject.

b) MARRIAGE OF MEMBERS OF BRITISH FORCES SERVING ABROAD:

A marriage of a member of British armed force serving in a foreign country will be formally valid if it was
celebrated by the Chaplin serving with the force or by the authorised commanding officer.

c) THE COMMON LAW EXCEPTION: COMMON LAW MARRIAGES:

If there is an insuperable difficulty in following of lex loci celebrationis, (for eg: Christian parties wishing to
marry in a heathen country, or a Mohammed country or in a desert or uninhabited island etc.) the marriage
will be regarded as formally valid, if the marriage is celebrated in accordance with the requirement of
English common law. The requirement of English common law is:

1. The parties should take each other as husband and wife.

2. An episcopal ordained priest should perform the ceremony.

d) MARRIAGE ON THE HIGH SEA:

A view has been expressed that the absence of an ordained priest would be fatal to the formal validity of a
marriage at sea, unless it is a marriage of necessity. This would imply that if there are circumstances
which would justify the marriage being celebrated on board the ship without waiting for the ship to reach a
port, the marriage may be regarded as valid even in the absence of an ordained priest. This appeared to be
the present position with regard to the marriage at the sea.

Marriage on board British warship are how regulated by section 22 of the Foreign Marriage Act, as
amended by the Act of 1947.

ESSENTIAL VALIDITY OF MARRIAGE OR CAPACITY TO MARRY:

The legal capacity to marry deals with the matter such as consanguinity and affinity, bigamy and lack of
age. Consideration is given later to the law to govern matters of consent and physical incapacity.

The capacity of the parties to enter into a valid marriage is, no doubt, a matter relating to essential validity.
All impediments to marriage such as lack of age, prohibited degrees of consanguinity affinity, previous
marriage, and physical incapacity in fact all impediments other than purely formal ones come under this
topic.

WHICH LAW SHOULD GOVERN THE CAPACITY TO MARRY? RIVAL THEORIES:

With regard to the capacity to marry, there are two theories:

a) DUAL DOMICILE THEORY:

According to this theory, a marriage is invalid unless according to the law of domicile of both the parties
at the time of marriage, they have the capacity for marriage. In orderto determine the capacity of parties
to a marriage, the law of anti-nuptial domicile of both the parties have to be considered by the English
court. If they have capacity as per the law of domicile before their marriage, the marriage will be declared
valid.

For e.g., the marriage between an uncle and a niece, Jews by religion, uncle being domiciled in Russia and
the niece being domiciled in England at the time of marriage. According to the dual domicile theory, the
marriage is invalid since the parties do not have the capacity to marry by English law, although by Russian
law such marriages are allowed.

b) INTENDED MATRIMONIAL HOME THEORY:

According to this theory, the capacity to marriage should be governed by the law of the country where the
parties at the time of marriage intended to establish their matrimonial home and actually established their
matrimonial home.

ENGLISH LAW:

When we examine the decisions of English court, we could see that the English court have given
recognition to both the theories. However, most of the English cases strongly support the duel domicile
theory.

Brook vs. Brook, (1961) a marriage was celebrated in Denmark between a domiciled English man and his
deceased wife's sister also of English domicile. Marriage between a man and hid deceased wife's sister
was legal by Danish law but was illegal by English law at that time. The House of Lords applied the dual
domicile theory and held that the marriage was invalid.

Case law: Mette vs. Mette,

In this case, an English domiciled man married his deceased wife's sister of German domicile. The
marriage was celebrated in Germany, and after the marriage, they settled at England. The marriage was
valid by German law but invalid by English law. The court held that the marriage was invalid according to
both the theories.

THE BASIS OF RECOGNITION OF FOREIGN JUDGMENTS:

The basis of recognition and enforcement of foreign judgment was based on the 'principle of comity'.
English judges in the older cases believed that the law of nations required the courts of one country to
assist the courts of other countries- feared that if foreign judgments were not enforced in England, English
judgments would not be enforced abroad. Comity, surely is an inadequate basis, an uncertain ground and
gives rises to difficulties. It means that the judgments of English courts are not enforced in a country in a
country; the judgments emanating from that country should be denied enforcement in England
irrespective of other considerations. Again if the judgments of English courts are enforced in a country, on
the principle of comity, the judgments from that country should necessarily be enforced by English courts
and there would be no "Scope for any defense against those judgments except possibly the want of
jurisdiction". To carry enforcements of foreign judgments to such lengths is obviously against the
elementary notions of justice. The theory of comity replaced by a more defensible principle "the doctrine
of obligation"- means when a foreign court of competent jurisdiction had adjudicated a certain sum to be
due from one person to another, the liability to pay that sum becomes a legal obligation. This legal
obligation can be reinforced in England by an action before the proper court. BARON PARKE' expounded
this theory in 1842 as "where a court of competent jurisdiction has adjudicated a certain sum of money to
be due from one person to another, a legal obligation arises to pay that sum on which an action of debt to
enforce the judgment may be maintained thus the judgments of foreign and colonial courts are supported
and enforced". (William v. Jones-1845, 13 M & w 633)- Once the foreign judgment is proved. the burden
lies on the defendant to show why he should not perform that obligation. The
foreign judgment in other words, invests the creditor with a new right and imposes on the debtor a new
obligation. The doctrine of obligation has 2 merits when compared to the principle of comity. 1" the
question of reciprocity is completely eliminated. If A is under legal obligation to B by virtue of foreign
judgment, it is not necessary to examine how a judgment of an English court is treated in that foreign
country. An obligation, once recognized by English law must be enforced irrespective of the substantive
rules of law under which it has been created. 2d there is no difficulty in prescribing the defenses against a
foreign judgment. Existence of an obligation being the basis of liability, any ground which negatives the
obligation can be pleaded in defense.

ENFORCEMENT OF FOREIGN JUDGMENT UNDER THE INDIAN LAW:

In the Indian law, foreign judgments are recognized and enforced under the provisions of the civil
procedure code. Section 13 of the Civil Procedure Code provides that if certain conditions are satisfied. "a
foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the
same parties under the same title". In view of this statutory provision, it is not judgment in India, although
Indian judges, following English decisions have referred to both the comity and obligation doctrines.
Except in certain specified cases (sections 44 and 44A) foreign judgment cannot be enforced by direct
execution in India. It can be enforced only by the institution of a suit upon the judgment, as in England.
Before independence, judgments of the court in the Indian native states were considered as foreign
judgments in British India and consequently could be enforced in British India only by a suit on the
judgment.

Section 44 of the code as it stood before (1947) provided that the government of India may by notification
in the Official Gazette declare that a decree of any civil or revenue court of any Indian state might be
executed in British India as if it has been passed by the courts in British India. From 1951 the Civil
Procedure Code has been extended to all the states of the Indian union and by virtue of clause (3) of
Article 261 the Constitution of India, final judgments and orders passed by civil courts established in any
part of the territory of India shall be capable of execution anywhere within the territory of India.

Consequently, sections 43 & 44 have been modified by the amendment act of 1951. The modified sections
43 & 44 provide for direct execution of decrees and orders of civil and revenue courts situated in any part
of India to which the provisions of civil procedure code do not apply. Section 45 provides for the direct
execution of decrees of Indian courts in territories outside India by courts established by the authority of
the central government.

Section 44- A relates to the reciprocal enforcement of judgment given by courts in foreign countries. This
section has been modeled on the analogous provision in the Foreign Judgments (Reciprocal
Enforcement) act referred to Above (1915). Under section 44-

Section 44 - A relates to the reciprocal enforcement of judgment given by courts in foreign countries. This
section has been modeled on the analogous provision in the Foreign Judgments (Reciprocal
Enforcement) act referred to Above (1915). Under section 44 - A decrees of the superior courts of the
United Kingdom and other foreign countries with which India has reciprocal agreements are enforceable
in India as if they are decrees of Indian courts.

The foreign countries with which India has reciprocal arrangements for direct execution of decrees is
called reciprocating territory. Explanation 1 to section 44 -A defines reciprocating territory as-
"Reciprocating territory" means any country or territory outside India which the central government may by
notification in the official gazette, declare to be a reciprocating territory for the purposes of this section;
and "superior court"

with reference to any such territory means such courts as may be specified in the said notification."
Foreign decrees can be directly executed under section 44 - A only in district courts".