Module 3 Jurisdiction

1. Choice of Law ,
2. Domicile : Nature, Kinds, residence and Domicile ,
Domicile under Indian Succession Act; Nationality,
Difference
between Domicile and Nationality, Procedures,
3. Jurisdiction of courts, Residence ,
4. Concept of Renvoi ,
 Choice of Law
• The choice of law in a contract is the provision
that allows parties to a contract to agree that a
particular country’s laws will be used to
interpret the contract, even if the contract was
executed in a different country.
• Furthermore, this Choice of law clause is
evident in cross-border contracts and the
primary purpose of such clause is to have a
prima facie agreement and avoid uncertainty
over the law that would govern any disputes
that may arise out of the relationship created by
the contract.
• Indian private international law is the law that is usually
relied upon in deciding cases involving foreign parties
with conflicting laws from the Indian legal system.
• Under this law, both the parties are given the autonomy
and freedom to choose beforehand, while the contract is
being formed itself, which law they want to apply to
settle any future dispute which may arise.
• The choice made by the parties can be an expressed
choice or an implied choice which will be discussed below.
• However, there are certain restrictions which the parties
must adhere to while agreeing upon the law to be used
to settle their disputes.
• These restrictions include the mandatory rules of the
domestic law governing the country where the dispute
arises, the law of the country with which the contract is
most closely connected to the center of gravity (the
country in which the elements of the contract are most
closely grouped whose interests and policies are most
likely to be affected by the contract) and the convenience
and business efficiency.
 Expressed choice Implied choice
An expressed choice quite literally means From the explanation of Lord Simonds in
that the parties clearly state in writing his judgment in the case of Bonython v.
the law they intend on following in case Commonwealth of Australia (1951), an
of any future dispute in the agreement or implied choice can be defined as ‘the
contract itself. system of law by reference to which the
contract was made or that with which the
transaction has its closest and most real
connection’.

In certain instances, the implied choice of the parties can also be

ascertained by the courts if the contract contains an arbitration
clause. This is also known as the Choice of Forum.
 When parties themselves have not
decided on the choice of law
• When the courts of law conclude that there is an
absence of an expressed or implied choice from the
parties themselves in a contract, the onus of
responsibility in deciding which law to apply rests in their
hands. In these circumstances, the courts adopt two
approaches, the objective and the subjective approach.
• The objective approach is where the courts reach a
concrete conclusion, after a thorough analysis of
the contract that there has been no choice
expressed or implied.
• The subjective approach is when the courts take into
account the hypothetical will of the parties and through
this lens try and arrive at a law which they have reason
to believe the parties would have chosen as their choice
of law.
 Law of the country with which the
contract is most closely connected
• In the case of disputes arising in the field of contracts, the courts of law were
of the opinion that the solution to the question of the choice of law would be
to apply the law of the country with which the contract is most closely
connected. This is decided by the courts based on the following parameters-
1. The place or places of making the contract
2. The place or places of performance of the contract
3. The connection of the parties with the countries
4. The situs of any immovable property which is the subject matter of the
contract
5. The country where the ship is registered, on which the goods are to be carried
6. The currency in which money due under the contract, has been paid
• Despite these points of consideration, further questions can arise due to a
conflict between the interests of the parties and the interests of the country
whose law is being applied (the governing law). The final law that is to be
applied to settle the dispute must be in the best interests of the parties to the
contract as well as the best interests of the country whose law is to be
applied.
 Forum Shopping Or Choice Of Forum
• Forum shopping or the plaintiff’s choice of forum is a process
commonly practiced in the USA and is becoming an area of
concern discouraged by the courts of law.
• In the federal system, each state is governed by different procedural
laws and sometimes even different substantive laws.
• Thus, certain issues come under concurrent jurisdiction which
means that the issue can be resolved by more than one court, all
equally competent in exercising their jurisdiction over the issue.
• Thus, the plaintiff uses this choice available to him/her to his/her
advantage and brings the issue to that court which is likely to
produce a verdict that will be most beneficial to the plaintiff and
most deleterious to the defendant.
• The factors governing the choice of forum vary and can even include
the kind of jury, whether local or federal, whichever is more likely to
have a favourable impact on the plaintiff.
 Erie Doctrine
• The Erie doctrine is another factor that encouraged
the process of forum shopping.
• Derived from its namesake in the case of Erie Railroad
Co. v. Tompkins (1938), this became a binding
principle by which federal courts which exercised
diversity jurisdiction (wherein the plaintiff and
defendant belonged to different states) had the power
to apply both federal procedural law as well as the
state substantive law.
• This gave the courts unfettered power to
exercise whichever law they chose whenever
they saw it convenient which gave rise to
arbitrary and unfavourable judgments.
 Three Branches
• The three branches which form the basis of conflict of law are-
1. Jurisdiction
This deals with the question of whether the court or forum to which the dispute is
brought exercises the competent authority or has the power to decide the case at
hand. The five bases of jurisdiction that are generally recognized in the case of
international law are as follows-
a) Territoriality- This is the strongest principle governing jurisdiction which
states that every country has the right to regulate and exercise power over
all issues occurring within its territorial borders.
b) Passive personality- A country is empowered to have jurisdiction
in occurrences that have led to the harm of its people or nationals.
c) Nationality/ active personality- When the country’s national self is the
perpetrator of any occurrence causing harm, that country is obligated
to exercise its jurisdiction to punish the wrongdoer.
d) Protective- A country has the right to exercise jurisdiction to protect
its country from all threats to its security.
e) Universal- The most common jurisdiction, which has been mentioned in this
article is universal jurisdiction by which a country has jurisdiction over
certain acts based on their intrinsic rejection by international communities.
2. Choice of law
The two main components that govern the choice of law in a
situation are as follows-
a) Lex fori- This refers to all the procedural matters governing the
choice of law, including the rules to be used to settle a
particular issue.
b) Lex patriae- This refers to the nationality or habitual residence
of the plaintiff according to which the court will decide which
law of which state is to be applied to settle the dispute at hand.
For example, suppose a dispute has arisen between two individuals A
and B, both belonging to different countries. If A is the plaintiff and
brings the case to a court in his own country, B can challenge this
action because B lives outside the jurisdiction of the court in A’s
country. Once the court of A’s country proves that it is competent to
exercise jurisdiction over the matter, it needs to decide whether it
should follow the law governing A’s country or B’s country to solve the
dispute. These two options which the court needs to choose between
is known as the choice of law. According to lex fori, the court can
apply either A’s country law or B’s country law. According to lex
patriae however, the court would have to apply the law of A’s
country as A is the plaintiff in this case.
3. Enforcement of foreign judgment
• In certain instances where there exists no
domestic law which can be applied to settle the
dispute, the court can, if it is within its
jurisdiction to do so, recognize and enforce any
judgment from an external or foreign forum to
the case at hand.
• There are multiple types of foreign judgments
which can be applied. Some examples are
judgments that concern bilateral or multilateral
treaties or understandings or even unilaterally
agreed to treaties that do not contain an
express international agreement.
 Jurisdiction clause Governing clause
This has the effect of procedural law as it This clause is used to determine the legal
determines all the procedures which are rights and obligations of the parties, or in
to be followed to settle a dispute, both to other words, it deals with the substantive
commence the proceedings as well as law which is to be applied to aid in the
during the trial. interpretation of a contract or an
agreement.
It is also used to determine which process It merely determines the law but
of dispute resolution is to be adopted. contains no information on the
For example, expert determination, procedure which is to be used to apply
settlement by courts, or arbitration. such substantive law.
 Examples Of Case Laws In Indian
Jurisprudence
Dholi Spintex Pvt. Ltd. v. Louis Dreyfus Company India Pvt.
Ltd. (2020)
• The issue, in this case, was whether an arbitration
agreement between two parties is an agreement that
is independent of the substantive contract.
• The Court in this case laid re-emphasis on the principle of
non-interference of the Indian courts of law in matters of
international arbitration as Indian parties have every right
to choose a foreign law as the law governing the
arbitration between them.
• To answer the question at hand, the Court ruled that ‘an
arbitration agreement/ clause does not govern the rights
and obligations arising out of the substantive contract
and only governs the manner of settling disputes
between the parties.’
Rhodia Ltd. v. Neon Laboratories Ltd (2002)
• The issue that arose, in this case, was whether
contracts using a foreign choice of the law were
valid under Indian law and whether the opinion of
the foreign law could be relied upon in determining
whether an Indian Court had jurisdiction in a
particular matter related to the same.
• The Court held that the application of choice of law is
dependent on the question of law which the parties
choose to apply and not when a question regarding
their nationality arises.
• Thus, it was held that two Indian parties can indeed
choose a foreign law to govern their contract. As
long as the law in question is bona fide in nature, it
can be applied to the case at hand.
Ssangyong Engineering & Construction Co. Ltd. v.
National Highways Authority of India (NHAI) (2019)
• In this case, the Supreme Court of India stated that
in cases where an agreement is found to be in
contravention of the ‘fundamental principle of justice
prevalent concepts of good morals (or) deep-rooted
traditions of the commonwealth’, the same could be
deemed to violate the public policy of India.
• As a result of this reasoning, foreign law cannot be
enforced in India if it contravenes the public policy
of the latter.
• Thus, the concept of choice of law ceases to be
recognized in cases where the object of the
agreement is unlawful under Indian law and legal
proceedings.
 Domicile
• Domicile, a legal term, refers to the permanent
or legal address of an individual, denoting their
place or country of residence.
• It is a crucial concept for legal matters such as
taxation, voting rights, and claiming benefits.
• Domicile signifies a person's true, principal, and
permanent home, distinguishing it from mere
residence.
• In essence, domicile is the place where an
individual has physically lived and considers their
home.
 Nature of Domicile

• Domicile, as a legal term, refers to an individual's

permanent or legal address, which is significant for
various legal purposes such as taxation, voting, and
claiming benefits.
• It represents the true, principal, and permanent home of a
person, where they have physically lived and consider as
their residence.
• The nature of domicile is such that it distinguishes between
a person's temporary residence and their permanent
home. In essence, domicile signifies a deeper connection to
a place compared to mere residence.
• Importance of Domicile:
1. Domicile in India is an essential requirement for acquiring
Indian citizenship.
2. Domicile plays an important role in the writing of Will,
intestate succession and succession planning.
3. The Indian Succession Act, 1925 provides that succession to
immovable property in India is to be regulated by the law of India
whenever a person has domiciled in India at the time of his death.
Hence, the concept of domicile is important while determining the
distribution of property after the death of a person.
• General principles of Domicile:
1. It is necessary to connect a person with some legal system to
regulate his legal relationships. Under both Indian and English private
international law, there are four general rules in respect of domicile
2. No person can be without a domicile.
3. No person can at the same time have more than one domicile.
4. An existing domicile is presumed to continue until it is proved that a new
domicile has been acquired.
5. Domicile denotes the connection of a person with a territorial system
of law.
 Case Laws
• In Mohammad Raza v. State of Bombay, AIR
1966 S.C. 1436, case the Supreme Court held
that the term domicile means a permanent
house
or place where the person concerned resides
with the intention of remaining for an indefinite
period.
• In Pradeep Jain v. Union of India, (1984) 3 S.C.C.
654, case the Court held that the domicile of a
person is in that country in which he either has
or is deemed by law to have his permanent
house.
 Kinds of Domicile
• There are three main types of domicile recognized under common
law and statutes:

1. Domicile of Origin: This is acquired at birth and is typically

based on the individual's place of birth or their parents'
domicile.
2. Domicile of Choice: This type of domicile is voluntarily chosen
by an individual, indicating a deliberate decision to establish a
new permanent residence.
3. Domicile by Operation of Law: This type of domicile is
determined by legal principles or rules, often in cases where
an individual cannot choose their domicile, such as minors or
individuals lacking mental capacity.
 Difference
Domicile Residency

Domicile: It refers to a person's Residency: Residency, on the other hand,

permanent legal home or country of is where a person currently lives and
origin, representing their true, principal, spends their time, indicating a more
and permanent home. temporary arrangement compared to
domicile.
Domicile is more enduring and signifies a It is the individual's current physical
deeper connection to a place, often used location or place of abode.
for legal and tax purposes.
 Difference Between Domicile and
Citizenship
Domicile Citizenship
Domicile: It refers to a person's Citizenship: Citizenship is a political status
permanent home, indicating their true, that denotes a person's membership in a
principal, and permanent residence. nation, entailing certain rights and
privileges associated with that status.
Domicile is significant for legal matters It is about allegiance to a state and
such as taxation and voting rights, carries legal implications related to
representing a deeper connection to a nationality and rights within that country.
place compared to mere residence.
 Benefits of Citizenship
1. It can be retained for a lifetime
2. It can be passed to children
3. Citizens have all the rights, privileges, and responsibilities defined
by the law of their country, such as the right to vote, participate
in politics, work, access education, and obtain healthcare
4. Citizens need not fulfill any minimum stay requirements.
5. Citizens can call upon their country for assistance and protection,
and access any embassy, consulate when traveling abroad.
6. It gives stability and certainty.
7. According to Article 15 of the UN’s Universal Declaration of
Human Rights, citizenship guarantees nationality.
8. Citizenship gives the right to acquire the passport of the country.
Domicile Under the Indian Succession
Act,1925
• Under the Indian Succession Act, domicile is defined as a
permanent home or place where a person resides with the
intention of remaining there for an indefinite period.
• The Act regulates the succession to a deceased person's immovable
and movable property, with domicile affecting succession to
moveable property only.
• Specifically, Section 7 of the Indian Succession Act states that the
domicile of origin of every person of legitimate birth is in the
country in which they were born.
• Additionally, Section 12 clarifies that domicile is not acquired by
residence as a representative of a foreign government or as part of
their family.
• In summary, the Indian Succession Act outlines the significance of
domicile in matters of succession to property, distinguishing
between domicile of origin and acquired domicile by choice or
representation.
• The Indian Succession Act, 1925 provides that
succession to immovable property in India is
to be regulated by the law of India whenever
a person has domiciled in India at the time of
his death. In this article, we shall study the
Domicile of origin.
• Domicile of origin or domicile by birth comes
into existence as soon as the child becomes
an independent person by birth. There are
three cases of domicile acquired by the origin.
When a child takes birth, he is either
legitimate, or illegitimate, or posthumous.
Section 6: One Domicile Only Affects Succession to
Movables.
A person can have only one domicile for the
purpose of the succession to his moveable
property.
Section 7: Domicile of Origin of a Person of
Legitimate Birth:
The domicile of origin of every person of legitimate
birth is in the country in which at the time of his
birth his father was domiciled; or, if he is a
posthumous child, in the country in which his father
was domiciled at the time of the father’s death
• Illustration:
At the time of the birth of A, his father was
domiciled in England. A’s domicile of origin is in
England, whatever may be the country in which he
was born.
At the time of the birth of A, his father was dead
and domiciled in England, then A is posthumous
child A was in mother’s womb at the time of the
death of his father) A’s domicile of origin is in
England, whatever may be the country in which he
was born.
By the English Law, the posthumous child gets the
domicile of the mother at the time of the child’s
birth.
• Section 8 Domicile of Origin of an Illegitimate
Child: The domicile of origin of an illegitimate
child is in the country in which, at the time of
his birth, his mother was domiciled.
• Illustration: A mother whose domicile is
England gives birth to an illegitimate child in
India. Then the domicile of origin of the child
is in England.
• Section 19 Succession to Moveable Property in India, in
Absence of Proof of Domicile Elsewhere:
• If a person dies leaving moveable property in India, in the
absence of proof of any domicile elsewhere, succession to
the property is regulated by the law of India.
• The domicile of origin remains with an individual until
another has been acquired. In order to change it, there
must be an absolute removal from their present residence
coupled with an intention to reside in another place. A
mere intention to remove is not sufficient.
• Such an intention to remove must be brought into effect.
On moving to a new place he/she acquires a domicile of
choice and loses domicile of origin. But if such person
returns with an intention to reside in his/her prior
residence then he/she will get back his/her domicile of
origin.
 Kedar Pandey v. Narain Bikram sah,
AIR 1966 SC 160
• In this case, the Supreme Court has dealt with the
complexity of issues and held that an existing domicile is
presumed to be in existence until proved that a new
domicile has been acquired, because a person cannot be
without a Domicile. Hence, the burden of proving a change
in Domicile is variably upon the person who alleges that
there has been a change in the status of his Domicile. If the
evidence is not conclusive in nature, then the court
generally decided in the favor of the existing Domicile
which is the Domicile of Origin.
• In other words, what is required to be established is that
the person who alleges to have changes the domicile of
origin and had acquired a domicile of choice has voluntarily
fixed the habitation of himself and his family in the new
country, not for a special or temporary purpose but with
the intention of residing there permanently.
• In Yogesh Bhardwaj v. State of Uttar Pradesh ,
AIR 1991 SC 356 Case, the Court observed that
the domicile of origin can be transmitted through
several generations no member of which has
ever resided for any length of time in the country
of the domicile of origin. The character of the
domicile of origin is more tenacious, and its hold
stronger and less easily shaken off.
• In Central Bank of India v. Ram Narain, AIR 1955
SC 36 case, the Court held that the domicile of
origin, which the law attributes to him , adheres
till he acquires another domicile; the domicile of
origin adheres to him even if he has left the
country with the intention of never returning
there till he has acquired a domicile elsewhere by
settling in that place with the requisite intention.
 Legitimatization of a Child in Other
Countries:
• To determine an illegitimate child’s domicile, the
illegitimate child is first legitimized by a statute. For
this purpose, the parent whose relationship is required
to be made legitimate must be domiciled in a state
that permits such an act. If a father is a resident of a
state that permits legitimization by recognition, the
fact that the mother and child are domiciled elsewhere
will not affect the act of legitimating. Such a
legitimization will be recognized in every state.
However, if the domicile of the father at the time of
the act of recognition is not of the state that
implements the act which confers a legitimate status
to the child, then the father’s subsequent removal to
the latter state will not confer a legitimate status to
the child.
 NATIONALITY
Nationality is a bond that connects a person to a
state. It gives the person membership in that state,
a claim to the state's protection, and obligations to
the state's laws.
Nationality can be acquired in three ways:
1. Birth: By being born on a state's territory
2. Descent: By being descended from a
state's national
3. Naturalization: Through the process
of naturalization
 Nationality by Birth
• Being born in a country qualifies you to be a
national of the respective country. This is usually
referred to as Jus Soli. It is a Latin term, its literal
translation is “right of soil”.
• The states which follow the principle of jus
soli, allow the individual to acquire the
citizenship of that particular state on the virtue of
being born on the state’s territory. This is
provided despite the citizenship or the
immigration status of the respective individual’s
parents.
 By descent from a State’s National
• This is known as the principle of Jus Sanguinis. It
is derived from a Latin term. It literally translates
to “Right of Blood”. It means that the citizenship
of the parent is the pre-determinant of the
child’s citizenship.
• The countries which follow this principle provide
citizenship on the basis of birth provided that the
individual’s parents were legally settled citizens
of the respective country. This ensures that the
citizenship passes from the parent to the child.
 By Naturalization
• The process by which a foreign citizen becomes
eligible to acquire the nationality or citizenship of
any country. It usually requires the individual
seeking the same to fulfil certain requirements
and perform certain protocols to be eligible for
the same.
• The rules and protocols for naturalization vary
from country to country. The most common
element can be the requirement of a promise to
obey and uphold the country’s law and respect
the constitution.
 Nationality by Marriage
• Individuals need not keep renewing their visa
and burning a hole into their pockets for the sake
of love. Foreign individuals have the opportunity
to be a permanent citizen of the state where
your significant other might be. This is known as
a citizenship marriage.
• The Hague Convention on Conflict of
Nationality Laws (1930) laid down certain
provisions regarding nationality by marriage.
Chapter 3 of the same talks about the
Nationality of married women.
• The main articles of these laws are:
• Article 8: On the occasion of marriage, if the wife’s
national laws cause her to lose her nationality, the
consequence of the responsibility completely befalls upon
the wife to acquire the nationality of the husband.
• Article 9: If the national laws require her to lose her
nationality when she acquires the nationality of her
husband through marriage. The consequence of the act
shall be on the condition of her acquiring her
husband’s new nationality.
• Article 10: If the situation where a husband is naturalized,
the change in the wife’s nationality is not possible until
and unless without her full consent.
• Article 11: In case of marriage dissolution, the wife shall
be ineligible to recover her previous nationality. She can
only do so in accordance with the respective country’s
laws. If the wife is successful in regaining her previous
nationality, then the nationality acquired by virtue of
marriage shall be deemed void.
 Nationality by Adoption
• This is also referred to as inter country or transnational adoption.
This is very similar to any normal adoption procedure, just in an
international context. By the virtue of this measure, an individual or
a couple can be deemed legal parents of a child belonging to a
foreign nation.
• There are certain protocols to be followed before this can be
granted. The individual or couple will have to be eligible. The
eligibility criteria for the child are:
• The parents (either Couple or individual) must be permanent
citizens of a state, either by birth or via naturalization.
• The child must be under 18 years of age.
• The child must be a permanent citizen of the state from where he is
being adopted.
• The child must be under the legal custody of some guardian in
his/her state.
 Nationality by Cessation
• The literal meaning of cessation is the process of ending
or bringing to an end.
• When we talk about nationality by cessation, we refer
to the cessation clauses which were expressed in
the conference of Plenipotentiaries held in 1951. This
conference laid that an individual must not be provided
refugee status any longer than it is absolutely required. This
had to come to a halt in accordance with the terms and
conditions of the statues.
• The cessation of refugee status thus comes into play when
the refugees have successfully availed the protection of
their country of origin or any other country of which they
are nationals of now. Article 1F of the convention
addresses these conditions in which an individual is no
longer eligible to enjoy the benefits of refugee protection.
 Loss of
Nationality

Voluntary loss Involuntary

of citizenship loss of
citizenship
 Loss of Nationality
Also known as loss of citizenship, this refers to the situation wherein a
citizen stops or ceases to be a lawful citizen of the country. This term
is an umbrella shelter for both:
1. Voluntary loss of citizenship: Means relinquishing one’s
nationality. The prime focus here is on the voluntary part.
Almost all the countries have set-up their own set of rules for
the formal relinquishment of their citizenship. There are
countries which do not allow that as well, they tend to trap their
nationals in an endless loop of administrative red-tapism.
2. Involuntary loss of citizenship: States have certain provisions
regarding nationality. If a citizen fails to adhere to these then
his/her citizenship can be cancelled. It can happen due to a lot
of things like someone failing to retain their citizenship.
However involuntarily losing one’s citizenship, is not immediate,
it has to undergo a series of actions to revoke someone’s
citizenship.
 By Expatriation
• An expatriate refers to a person who is residing in
any other country rather than his native country.
• Expatriation is a voluntary right which a citizen of a
country can exercise on the basis of his discretion
if required.
• It means renouncing the nationality and allegiance of
a country without any constitutional consequences.
• Generally, this term refers to the professional and
skilled working-class (for private entities or
government organisations) or even artisans who
work outside their homeland.
• The main theme here is that it is voluntary, and
the decision rests on the conscience of the citizen.
Loss of nationality by Substitution
• Some states have the provision of providing and
taking away the nationality on the basis of
substitution. This happens when an individual
loses the nationality of one state (his nation)
and is able to attain the citizenship of another
state.
• Different states have different protocols. Some
states will cancel your citizenship if you acquire
a job in a foreign nation without following
government sanctions.
 Domicile Nationality
Domicile, or lex domicilii, is a connecting Nationality, also known as lex patriae,
factor that links a person with a particular refers to the relationship between a
legal system based on the place where person and a nation, and it is usually
they have established their permanent determined by the country of birth or the
home. country of origin of the person's
ancestors.
Domicile is a concept of private Nationality implies obedience and
international law that identifies a person, allegiance to the state, and it is a political
in cases having a foreign element, with a status that grants certain rights and
territory subject to a specific legal obligations, such as the right to vote, to
system. A person acquires a domicile in a work, or to receive consular protection
country based on their intention to set up abroad.
residence there permanently, both animo
et facto, meaning intention and fact of
residence.
Domicile is not just a place of residence Nationality is relatively easy to establish
but a place of habitual residence, and it and is often used as a connecting factor in
can be of origin, choice, or dependence. private international law to determine
the applicable law in matters related to
personal status, such as marriage,
capacity, and personality.
 Domicile Nationality
Domicile is a legal concept that focuses on Nationality is a political concept that
the relationship between a person and a focuses on the relationship between a
legal system. person and a state.
Domicile, is more complex to establish Nationality is relatively easy to establish
and is used as a connecting factor in and is often used as a connecting factor in
private international law to determine private international law to determine the
the applicable law in matters related to applicable law in matters related to
property, succession, and torts. personal status.
 Indian Citizenship Act on the loss of
Nationality
• Section 10 of the Citizenship Act, 1955
talks about the deprivation of citizenship.
• This article states that any Indian citizen by
naturalisation or by the virtue of Article 5 of
the Constitution or by registration under
any other circumstances other than clause
(b).
 Following the provisions laid down under this section, the
Central Government is authorised to deprive an Indian
national of his citizenship, if the following conditions apply:

• When the nationalisation or the registration certificates

were obtained by unlawful means- fraud, false
representation, hiding any piece of evidence related to
these.
• That citizen by means of his expression is proven to be
disloyal towards the spirit of the Indian Constitution and
the established laws itself.
• If a citizen, during a war, tried or tries to or unlawfully
communicate with an enemy or was by any means related
to them.
• Associated in any business or under his senses assisted
an enemy.
• If within five years of the period after naturalisation, the
individual had been sentenced for a period of at least
two years.
• The citizen has been a foreign Indian National, for a continuous
period of seven years. If during that period, he was not enrolled
as a student with any educational institution or a part of
Government service in an International Organisation.
• The Centre shall not deprive any individual of citizenship until
and unless they are confirmed that this is conducive for the
Public good.
• Before an order is passed under this section, it is mandatory
for the government to inform the person against whom the
order is passed. This must be in writing. If the order falls under
the jurisdiction of sub-section (2). Then this case has to be
referred to a committee of Inquiry under this section.
• The Central Government must refer this case to the Committee
of Inquiry, which must have a chairman (a person who has
held a judicial office for at least a decade) in collaboration with
two other members appointed by the Central Government.
• The Inquiry Committee must submit its report to the Central
Government. The further orders shall be guided by such
reports as it was ordered under this section.
 The concept of Double Nationality or
Dual Nationality
• When more than one country regards an individual as its citizen, it
is called dual citizenship. Dual citizenship occurs because different
countries have set-up varied methods for granting citizenship.
• A person who holds dual citizenship generally enjoys the rights
of citizenship of both countries. These rights can be:
1. Right to hold passports.
2. Right to vote.
3. Right to residence.
4. Right to work.
5. Right to enter the country, etc.
• The person is not just entitled to enjoy the rights, he is obliged to
conduct certain duties like:
1. National civil service.
2. Subject to the taxation system of the country, etc.
 The Nottebohm Case (Liechtenstein
v.
Guatemala)
• Brief Summary: After World War II broke, Nottebohn, a citizen
of Guatemala, in Germany for over three decades applied for
Liechtenstein citizenship.
• Facts: Nottebohn, a natural citizen of Guatemala, in Germany for 34
years, also had business ties with the state. After the outbreak of
World War II applied for Liechtenstein citizenship, even though he had
no ties with it. The application was approved by Liechtenstein but it
was to be waived off after three years.
• After this approval, Nottebohn travelled to Liechtenstein. Upon his
return, he was denied entry because he ceased being a German
citizen. His Liechtenstein was not honoured, collaterally causing
Liechtenstein to file a suit in the International Court to force
Guatemala to recognise Nottebohm as one of its nationals.
• Guatemala challenged the validity of Nottebohm’s citizenship and
the right of Liechtenstein to file a suit on the accused grounds.
• Issues: Can nationality be disregarded by other states
in cases where it is clear that it was a mere device.
The nationality that is provided to an individual has to
be the concern of the conferring nation?
• The judgement: It was held by the honourable Court
that the issues regarding citizenship are the sole
concern of the nation which grants it. This is
supposed to be generally accepted. However, this
also does not imply that other states do have to
unquestioningly accept the granting state’s
designations. As in this particular case, there exists no
relationship between Liechtenstein and Nottebohm,
thus the change of nationality here was merely an act
guided by the fear of war. Thus, under these
circumstances, Guatemala was not obliged to
recognize it.
 The Pros Of Dual Nationality
• The benefits: Dual citizenship can provide a citizen with certain benefits.
It depends upon the laws of the nation-states. They get to vote, they get
to be a part of multiple social service programmes, eligible to hold
multiple offices in both states.
• Multiple Passports: The process of getting your passport can be a long
and tedious task, full of multiple runs to the passport office and lots of
red-tapisms. Thus marking this benefit as the most important one.
This lets the traveller evade questions related to the purpose of the
trip, reasons for a long-stay. This can be very beneficial for frequent
flyers, businessmen and students.
• Property Ownership: You can hold estates thus opening
multiple alternate earning sources which can be financially
beneficial.
• Political Security: In case of a violent break out in one of the countries,
you still have a back-up option to rely on. You can rush to this safe-
house with your family for their safekeeping.
• Healthcare Benefits: Some countries have excellent medical facilities
in addition to insurance facilities being amongst the other perks. Thus
you and your family stand at an advantage.
 The Cons Of Dual Nationality
• Taxation laws might be a problem: usually if you have multiple citizenships, you
are entitled to pay taxes to both the countries. This might increase your
expenses by tonnes.
• Scepticism issues: you might face trouble in the run for the post of a political
office. In some instances, you might be asked to forfeit your dual citizenship,
in order to attain the office.
• It can be very expensive: in some nations, the price of the passports can be
very costly, thus burning a hole in your pocket.
• Security issues: the governments of some nations are afraid of the maybe
consequences of dual nationality. They fear that it can possibly change
the majority of a nation and thus having the potential to shift the political
environment of a nation.
• Might not be allowed: many countries support dual nationality, many are against
it. The countries you want to be a citizen of can be of contradicting views. There
is even a bigger risk that, if your nation is against dual nationality, it might even
revoke your nationality in the due process of your application of nationality for
some other country.
• It is a time-taking process: usually processes like these involve a lot of
paperwork and undertake a lot of time. All of these processes can be very
frustrating for the applicant and he/she might even give up the idea unless it is
very necessary or in worst cases indulge themselves in illegal activities to attain
their means.
 Jurisdiction of Foreign Courts
• Jurisdiction of foreign courts in private international law refers to the
power of a foreign court to hear and determine a case with a foreign
element.
• The jurisdiction of foreign courts is a complex issue that varies from
country to country and is subject to international conventions and
treaties.
• In private international law, the jurisdiction of foreign courts is
determined by the rules of jurisdiction of the forum court, which may
include the defendant's domicile, the place of the tort, the place of the
contract, or the location of the property in dispute.
• The rules of jurisdiction may also depend on the nature of the dispute,
such as contractual or tortious claims.
• The recognition and enforcement of foreign judgments are also essential
aspects of the jurisdiction of foreign courts.
• The recognition and enforcement of foreign judgments
depend on the rules of private international law of the forum
court and the international conventions and treaties.
• The recognition and enforcement of foreign judgments may
be subject to certain conditions, such as the jurisdiction of the
foreign court, the res judicata effect of the judgment, and the
public policy of the forum court.
• The jurisdiction of foreign courts in private international law
is a complex and evolving area of law that requires careful
consideration of the rules of jurisdiction, the recognition and
enforcement of foreign judgments, and the international
conventions and treaties.
• The jurisdiction of foreign courts is an essential aspect of
private international law that ensures the protection of the
rights of the parties and the respect for the interests of
foreign States.
• When a court considers a case with foreign elements,
it must determine if it has jurisdiction to hear the case.
If the court does have jurisdiction, it must then:
1. Characterize the issues
2. Allocate the case's factual basis to its relevant legal classes
3. Apply the choice of law rules to determine which
law applies to each class
• When creating jurisdiction rules, important
considerations include:
1. Fairness to the claimant and defendant
2. Respect for the rights of other countries
3. Giving the claimant the opportunity to bring their claim
in a reasonable court
Private international law governs the choice of law to apply
when there are conflicts in the domestic law of different
countries related to private transactions
• In private international law, courts determine the choice of law by
considering various factors and principles to decide which legal system's
laws will govern a transnational matter. The process involves analyzing
the circumstances of the case and applying relevant legal doctrines. Here
are the key ways courts determine the choice of law in private
international law:

1. Party Autonomy: Courts often respect the principle of party

autonomy, allowing parties to choose the governing law in their
contracts. This expressed choice can be clearly stated in writing or
implied from the circumstances of the agreement.

2. Implied Choice: In cases where parties have not explicitly chosen the
applicable law, courts may infer an implied choice based on the nature
of the contract, the place of performance, or other relevant factors.

3. Objective and Subjective Approaches: Courts may adopt either an

objective or subjective approach when parties have not indicated a
choice of law. The objective approach involves analyzing the contract
to determine if there is no expressed or implied choice, while the
subjective approach considers the hypothetical intent of the parties.
4. Connection with the Contract: Courts may consider various factors to
determine the law most closely connected to the contract, such as the place of
contracting, the place of performance, the parties' connections with specific
countries, and the subject matter of the contract.

5. Theories of Choice of Law: Different theories guide courts in determining the

applicable law, such as the Lex Loci Contractus theory, which focuses on the
law under which the contract was made, and the Lex Loci Solutionist Theory,
which prioritizes the place where the contract was executed.

6. Freedom of Contract: The principle of freedom of contract allows parties in

international contracts to agree on the governing law, promoting clarity
and predictability in resolving disputes.

7. Judicial Discretion: When parties have not chosen the applicable law, courts
have the discretion to decide based on legal principles and theories of
private international law.

In summary, courts determine the choice of law in private international law by

considering party autonomy, implied choices, objective and subjective approaches,
the connection with the contract, various theories of choice of law, freedom of
contract, and judicial discretion. These factors help ensure a fair and consistent
application of the law in cross-border disputes.
 Foreign Jurisdiction Clauses In India
• The law about the enforcement of foreign jurisdiction clauses in India has been
piloted under the Code of Civil Procedure,1908 (C.P.C) and the Indian Contract
Act,1872 (ICA).
• Section 20 of CPC brings forth as to where the suit can be initiated in case of
disagreement.
• The Section lays out for personal jurisdiction, i.e., each suit shall be instituted
in court inside the native limits of whose jurisdiction the explanation for action
arises.
• Apropos to the foundation of exclusive and natural jurisdiction clauses, in Modi
Entertainment Network v. W.S.G. Cricket Pte. Ltd (2003) the Hon’ble Supreme
Court vindicated that parties can choose any courts of natural jurisdiction or a
foreign court of their choice as a neutral forum and have the dispute resolved per
se to the law applicable to that foreign court, notwithstanding the courts under
the ambit of CPC lacking such jurisdiction.
• Moreover, a court may exercise its power of granting anti-injunction suit
provided that:
1. The defendant shall be under personal jurisdiction;
2. Justice is denied if an injunction is not granted;
3. The rule of comity applies.
The Hon’ble Supreme Court in PASL Wind Solutions
Private Limited v. GE Power Conversion India Private
Limited (2021) sustained that the parties to an arbitration
agreement have the autonomy to determine not solely
on the procedural law to be followed however
additionally the substantive law. Therefore, two Indian
parties can opt for a remote seat of arbitration. Delhi
High Court bracing to uphold clause conferring
jurisdiction on foreign court in BHEL Ltd v. Electricity
Generation Incorporation (2017) held that where the
background for jurisdictional clause citing for the specific
forum had been enunciated, the court shall give effect to
it. Here, scarcity of your time isn’t a legitimate ground to
confer territorial jurisdiction to.
 Concept of Renvoi
• The term "renvoi" comes from the French word meaning "send
back" or "to return unopened".
• In a conflict of laws situation, the doctrine of renvoi is the
process by which a court adopts the rules of a foreign
country. It's an attempt to resolve disputes that contain any
foreign elements.
• The doctrine of renvoi implies that the rules of conflict of laws
include the rules of conflict of laws of the foreign state or
country. According to this theory, "the law of a country"
means the whole of its law.
• When a court has a matter with an international element, it
will apply the PIL rules of the jurisdiction in which it is
located. If the applicable law is that of another jurisdiction, the
court must decide whether to apply the other jurisdiction's
domestic law or its own PIL rules.
 Types of Renvoi
1. 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 Forgo case

Facts Facts
The testatrix( the person who writes A Bavarian national died in France,
the will) was a British national, who where he had lived since the age of 5.
was domiciled in Italy and had written Where under the Bavarian law the
a will leaving the land in Italy and the collateral relatives were entitled to
movables both in Italy and England. succeed, but under the french law the
Where will was valid in England but property will be passed to the French
not in Italy because she had not left government but not to the family
half of her property to her son. members.
Judgment Judgment
Where the Court had applied the law The French Court held that it would
regarding where the property is decide the inquiry by applying Bavarian
situated. The movables in Italy law however the State contended that
because the testatrix (the person who the Bavarian Courts would apply
writes the will) holds the Italian French law, and the French Courts
domicile. As a result, the Judge had ought to do otherwise. The case was
applied the Italian law with respect to ruled for the French state, and the
the immovable property situated in reference here was to the Bavarian
Italy. guidelines of contention.
As Italy did not accept the renvoi based
issue was decided in accordance with
English law.
2. 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.