Contents

Meaning, Nature and Scope of Private International Law...................................................................... 2

1. Definitions ................................................................................................................................... 2
2. Scope and Application of Private international law.................................................................... 3
Jurisdiction ...................................................................................................................................... 5
Recognition and Enforcement Foreign Judgements. ...................................................................... 6
Choice of Law .................................................................................................................................. 6
i. Lex Domicili ............................................................................................................................. 6
ii. Lex Loci Celebrationis.............................................................................................................. 7
iii. Lex Loci Contractus ................................................................................................................. 7
iv. Lex Loci Solutionis ................................................................................................................... 7
v. Lex Loci Delicit Commissi ........................................................................................................ 8
vi. Lex Situs .................................................................................................................................. 8
vii. Lex Fori ................................................................................................................................ 8
viii. Lex Patriae ........................................................................................................................... 7
3. Nature of Private International Law. .......................................................................................... 8
4. Difference between Public International Law and Private International Law. ........................... 9
5. Development of English Private International Law and Modern Theories............................... 10
6. Theories of Private International Law ....................................................................................... 11
Statute theory ............................................................................................................................... 11
International Theory ..................................................................................................................... 12
Territorial theory ........................................................................................................................... 13
Theory of Justice ........................................................................................................................... 14
7. Comity Of Nations ..................................................................................................................... 14
 LAW

Law

Public International Private International Public Law Private Law

International Law
Law Law

1. Meaning, Nature and Scope of Private International Law

Private International Law is a part of law which comes into play when the issue before the
courts affects some facts, events or transaction that is closely connected with a foreign system
of law.1

Private International law, therefore, is a system of law which has an international aspect but is
essentially a branch of municipal law. It is also known as conflict of laws. In the Indian context
it means a branch of law applied by Indian Courts whenever a dispute before it involves a
foreign element.

Foreign element min this context generally means a fact or an issue which has :-

a. Geographical or territorial connection other than the territory of the court

b. Citizenship
c. Domicile
d. Status of property
e. Contract
f. Tort

Definitions
Private international law refers to that part of the law that is administered between private
citizens of different countries or is concerned with the definition, regulation and enforcement
of rights in situations where both the person in whom the right inheres and the person upon
whom the obligation rests are private citizens of different nations.

1
Cheshire, Private International Law (8th Edition) p.5
According to Cheshire, “ Private International law is that part of law which comes into play
when the issue before the court affects some fact, event or transaction that is so closely
connected with a foreign system of law as to necessitate recourse to that system.”

According to Baty, “Private international law is the rules voluntarily chosen by a given state
for decision of cases which have a foreign complexion”

According to Cobbet, “ Private International Law is the body of rules for determining
questions as to the selection of an appropriate law, in civil cases which present themselves for
decisions before the courts of one state or country but which involve a foreign element i.e.e
which effect foreign persons or foreign things or transactions that have been entered into
wholly or partly in a foreign country or with reference to some foreign system of law.

Scope and Application of Private international law

The application of Private International Law can be discussed with the help of the following
illustration.

Illustration

An 18 year old Indian woman domiciled in the United States of America, gets married to an 18
Year old American Man in Jamaica. The issues surrounding the marriage that are to be
considered by a court

i. Whether the marriage is legal and void? (Capacity to Marry)

ii. Whether the process of marriage is applicable.

The laws that can apply to this illustration are the domicile laws of the US, Marriage law of
Jamaica and the Citizenship laws of the US as well as India.

“It starts unexpectedly in court and in the midst of any process. It may spring up like a mine in
plain common law action and in the administrative processing in equity or in a divorce case or
a shipping case may spring up a knot which is known as private international law. “

The study of the application and determination of the applicable set of laws that are in conflict
with each other and its appropriate application by the court of law is known as Private
International Law or Conflict of laws.

In light of this situation the domestic courts have to determine the following issues with issues
or cases with a foreign element and has to answer
 i. Circumstance to assume jurisdiction
ii. If it has jurisdiction, then what law is to be applied.
iii. Recognition and Enforcement of an foreign award

Broadly, therefore a situation of conflict of laws arises when :-

i. The laws of two or more countries with which the case is connected differ from
each other
ii. Conflicts can arise within the laws of the same country.

Whenever municipal laws are called upon to adjudicate upon a dispute they render can render
decisions based on their own internal laws. Similarly, Courts are also not mandated to recognise
or to give effect to a foreign law or foreign judgement owing to the principle of sovereignty of
nations. Hence, municipal courts will be within their rights to deny recognition of foreign
awards. However, the practice is that foreign judgments are usually recognised by municipal
courts but the problem is that there is a lack of uniformity in this case.

Now there are two major systems of law, the common law system and the civil law system
which differ from each other as to the subject matter of private international law. For example
countries like Germany, Switzerland and some Scandinavian countries restrict the scope of
private international law to problems of conflicts of laws and matters relating to the status of
foreigners which include matters of nationality, domicile etc.

On the other hand Common law countries include the rules of jurisdiction as well as the rules
of choice of law within the scope of private international law. For example in India rules
relating to jurisdiction of court and rules relating to relating to recognition and enforcement of
foreign judgements are laid down in the CPC uet courts have all along considered the
jurisdiction and rules related to choice of laws to fall within the ambit of private international
laws. Therefore, under the common law systems the subject matters under private international
law are

i. Rules relating to jurisdiction of courts

ii. Rules relating to choice of law

And rules relating to recognition and enforcement of foreign judgements and decrees

Rules relating to Jurisdiction of Court

Even where all the elements of a suit are internal the question whether the court has jurisdiction
to try it often arises. The law of procedure of every country lays down that in what matters
which court will have jurisdiction. The procedural law also lays down rules for other matters
of procedure and in some systems of laws these rules to all types of suits to have foreign
elements as well as to suits having no foreign elements.

There are two question of jurisdiction may arise before the court in the following two
circumstances: -

a. When a suit is filed before the court the question arises whether the court has
jurisdiction or
b. When the question before the court is of the recognition of a foreign judgment or
its enforemcent the court may be called upon to determine whether the foreign court
that rendered the judgment was of competent jurisdiction.

Ordinarily, the rules of jurisdiction are based on the principle that the court rendering
judgement should be able to enforce it. If it doesn’t have jurisdiction it will most likely not
pronounce a judgment which it has no power to enforce.

Private International law therefore is a separate buyt a distinct unit in the Englis Legal system
and it deals with three questions.

i. Jurisdiction of an English Court

ii. Recognition and enforcement of a foreign judgement.
iii. Choice of Law.

Jurisdiction
The most basic common law rule is that English Courts have no jurisdiction to entertain an
action in personam. Unless the defendant has been personally served with a claim form in
England and Wales.

However, under private international law, it has to be treated separately

i. Certain courts are empowered by Statute to assume jurisdiction over absent

defendants.
ii. Secondly, there are certain types of action such as a petition for divorce where
the mere presence of the defendant in the country.
 iii. There is a separate legal regime for jurisdictional rules in the case of a defendant
who is domiciled in the EU.

Recognition and Enforcement Foreign Judgements.

According to English Private International law if the judgment has been made by a court of
competent jurisdiction then under English law, the English law, the court will recognise the
judgement as one of its own.

Matters related recognition and enforcement of foreign judgements and decrees is also the
matter which comes under the province of private international law. The private international
law has to determine circumstances in which and the basis on which foreign judgments are to
be recognised. Broadly, if a foreign judgement is a judgment of a court of competent
jurisdiction it will be accorded recognition. However, a foreign judgement may also be
impeached on the ground that it has been obtained by fraud or in violation of the principles of
natural justice.

In India it is covered under Section 13 of the CPC covers the recognition and enforcement of
foreign judgements. Courts may or may not accept the foreign judgement.

Courts don’t accept the foreign judgement where :_

i. The court is not competent

ii. Where the judgement is not pronounced on the merits of the case.
iii. Where it sustains a claim found on a breach of any law in force in India.
iv. Where it opposes the principles of natural justice.
v. Where the judgement is obtained by fraud
vi. Where an incorrect view International law.

Choice of Law
In case the court comes to the conclusion that it has jurisdiction then in a conflict of law cases
the question that arises is under which law the suit should be decided? Whether the law of the
forum will apply or whether some foreign law or foreign laws will apply. This is known as the
question of choice of law.

Important Maxims with regard to Choice of Law.

i. Lex Domicili
Tbe lex domicilli is the Latin term for “law of the docmicile” 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.

The lex domicilli is a common law choice of law rule applied to cases testing the status and
capacity of the parties to the case.

ii. Lex Patriae

The term Lex patriae is Latin for the law of nationality in the Conflict of Laws. The lex
patriae is a civil law choice rule to test the status and capacity of the parties.

iii. Lex Loci Celebrationis

The lex loci celebrationis is the latin term for law of the place where the marriage is celebrated.
Conflict is the branch of public law regulating all lawsuits involving a foreign law element
where a difference in the result will occur depending on which the laws are applied.

Lex loci Celebrations is the choice of alw rule applied to cases testing the validity for a
marriage.

iv. Lex Loci Contractus

The lex loci contractus is the latin term for the law of the place where the contract is made.
The lex loci contractus is one of the possible choice of law rules applied to cases testing the
validity of a contract.

v. Lex Loci Solutionis

The Lex Loci Solutionis is the Latin term for law of the place where the relevant performance
of a contract occurs. It is the possible choice of law rule which applies to cases testing the
validity of a contract and in tort cases.
 vi. Lex Loci Delicit Commissi

The Lex Loci Delicit Commissi is Latin for the term for law of the place where the tort is
committed. It is one of the possible choice of law rules which applies to cases arising from an
alleged tort.

vii. Lex Situs

The term Lex Situs referes to the law of the place where the property is situtated for the
purposes of conflict of laws. It is the choice of law rule app,ied to identify the lex causae for
cases involving title to, or the possession and use of property.

viii. Lex Fori

Lex Fori means the law of the forum and it is distinguished from the lex causae which is the
law of the forum actually applies to resolve the particular case.

Nature of Private International Law.

1. The term Private International Law was coined by American Jurist John Story. It is
also known as conflict of laws. It consists of a body of rules which determines
whether the local/ foreign law is to be applied if so which system of foreign law.
2. It is a branch of legal system that are in conflict with each other. It is a set of
procedural rules that determines which legal system and which jurisdiction is to be
applied to the dispute.
3. James Facewet laid down that PIL Sets out procedural law rules relevant to
substantive law applicable to
a. Relationship between the parties.
b. Appropriate forum to resolve their disputes
c. Effect to be given to foreign judgement.

Narashima Rao v. Venkatalaxmi (1991) 3 SCC 4

Both the parties who were Hindus got married as per Hindu rites in India. The Husband filed
for divorce in the US and obtained a decree for divorce. His wife filed a complaint for bigamy
in Indian Court. The question here is has the husband committed bigamy or is the foreign
divorce decree valid.

In this judgement rendered was such that while in India it was a bigamous marriage. Whereas
in the US it is a valid marriage. The irretrievable breakdown of marriage is not recognised
under the HMA and hence divorce granted by a foreign court cannot be held as valid.

It is to be remembered that the laws of one country can have no intrinsic force except the
territorial limits and jurisdiction of the country. It can only bind

a. Its own subject

b. Those within the jurisdiction as long as they reside within that jurisdiction.

Difference between Public International Law and Private International Law.

Sl. No Public International Law Private International Law

1. Public international law is a body of Private international law is a procedural

rules applied in the conflict of rule applied in the conflicts between private
Sovereign States. citizens.
Public international law is also Private international law is also known as
known as the Law of Nations Conflict of Laws
Public international law is state law Private international law is corporate
international law
Public international law are the Whether the international private laws are
outcome of International customs framed by the State Legislature
traditions and treaties
The types of laws are enforced These types of laws are enforced by the
where there is international pressure State executive
or fear
In public international laws the Where in private international law the
courts are not pre-determined courts are pre determined.
 Public international laws are similar Whether the private international law may
to all states. differ from state to state.

Development of English Private International Law and Modern Theories

In England in the 16th Century the intra national conflicts was inevitable owing to the existence
of different legal systems within the territory of a single nations. The King established a court
to deal with the issues of foreigners whom he had invited to England and hence entitled to their
protection.

In the Elizabethan age, English traders began expanding their commercial activities beyond the
seas and therefore, it was obvious that they would suffer inability to redress in respect of
transactions effected abroad. A remedy ultimately became available to them in the Court of
Admiralty.

By the end of the 16th Century, the common law courts had begun to compete for this
jurisdiction. The technical difficulties that formerly stood in their way had disappeared for the
jury no longer relied on their knowledge by on the testimony of witnesses.

The rules of private international law in England developed in the seventeenth century. In 1863
King James I became the King of England and Scotland and the question then arose whether
the rule of English Law which prevented foreigners from becoming owners of land would apply
to the Scots as well. In the Calvin Case2 the question was answered in the negative.

In some cases, English courts showed their willingness to take evidence of foreign law and
courts also showed their willingness to recognise to foreign judgements. These, however, were
stray decisions. In the later half of the 17th century English courts had no competence to take
cognizance from foreign suits. At that time England had special courts that entertained the
complaints of foreigners or to hear disputes relating to trade and commerce.

In the 18th century the British Empire had reached the dimensions of “the sun never sets.” The
various constituent parts of the Empire had different laws. With the ever growing trade,
commerce and intercourse among the peoples of the empire there was a spate of cases having
foreign elements. In Robinson v. Bland3, Justice Mansfield said “The general rule is that the

2
(1608) 7 Rep 2a
3
(1760) 2 Burr 1077
place where the contract is made and not the place where action is brought is to be considered
in expounding and enforcing the contract but this rule admits of an exception when the parties
at the time of making of the contract had a view to a different kingdom”

In Mostyn and Fabrigos4 Mansfield L.J propounded the notion of what is today known as the
proper law of contract and torts

Theories of Private International Law

1. Statute theory
2. International theory
3. Territorial theory and the theory of acquired rights
4. Local law theory
5. Theory of justice

Statute theory
This is the oldest theory of private international law. Developed by Italian scholars at Italian
universities in the period of Renaissance of Roman Law. Under this theory statutes were
classified under two heads

I. Statutes concerning person (Statuta personalia)

II. Statutes concerning things (Statuta realia)
III. Statutes concerning both persons and things (Statuta Mixta)

Later on a third type was added called “statuta mixta” which was known as mixed statutes.

Sl No. Statua Personalia Statuta Realia Statuta Mixta

1. statute which concerned persons. concerned things mix of both person
and thing.
2. Applied to persons domiciled in Territorial in nature Mixed statutes
the territories of the state enacting applied to all
those statutes and continued to personal statues of
govern persons when they went to Milan and applied to
different territories all acts done in the
country enacting
such statutes.

4
(1774) Cowp 161
The main issue with this statute lied with the determination of what statute to apply. For
example the English Rule of primogeniture5, whether to apply personal or real statutes.

The French had different laws for different provinces called coutume. Provincial laws differed
from the others and owing to inter provincial trade between the people of different provinces,
the provincials’ laws were in constant conflict with each other. Thus emergence of the rules of
choice of law become inevitable.

. D’Argente propounded the theory of territoriality of law. According to the him whenever
there is a doubt as to whether a rule was real or personal or mixed it should be treated as real.
He held the view that personal statutes were those that dealt with ther status, capacity of parties
or with property in chattels.

Huber in the Dutch Version of the theory, he propounded three principles

a. The laws of each state operate within its territory and are applicable to all its subjects
but beyond its territorial boundaries, they have no operative force.
b. Laws of a state are applicable to all those persons who are within the realm irrespective
of the fact whether they are permanent residents or casual visitors.
c. By comity every sovereign accepts that a law which had come into operation in its
country of origin shall retain its force everywhere, provided it does not cause any
prejudice to the subjects of the sovereign by whom recognition is sought.

The first two principles embody the doctrine of territoriality. Under the third principle an extra
territorial effect is given to the law by the application of comitas gentium.

International Theory
The founder of the theory was Savigny. In 1849 Fredrich Carl Von Savigny published in his
book System of Modern Roman law. It intituled as the book on Conflict of Laws rejected the
statute theory as well as the territorial theory. Rejecting the statute theory Savigny suggested
that the solution of the problem did not lie in classifying the laws on the basis of their object.
But in the ability to find out the seat of each legal relationship as each relationship has its

5
the right of succession belonging to the firstborn child, especially the feudal rule by which the
whole real estate of an intestate passed to the eldest son.
natural seat in some local law. Therefore , even if the law of the forum is the law of the place
which which is seat of legal relationship it will be the latter which will be applicable.

The main postulate of Savigny’s formulation is that every legal relation has a seat. The task of
the jurist is to find this out on the assumption he developed many rules to enable one to find
out the seat of legal relations,.

The international theory has been criticised on many counts. The most damaging criticism of
this theory is that it starts on the assumption that there is uniformity in the laws of the countries
on the characterization of legal relation while in fact it is not so.

The merit of the theory lies in this that protagonists of the theory attempt to decide each case
in the light of all relevant circumstances, according to the legal system to which it seems most
naturally to belong. The theory has been dubbed as pure metaphor.

Territorial theory
The territorial theory has been placed emphasis on the real statutes and thereby gave birth to
the territorial theory. Courts of a country according to them, apply foreign law only to the extent
to which they are permitted to do so by the sovereign. This aspect of theory makes it resemble
the theory of comity. By some jurists the territorial theory was also named as the theory of
acquired rights.

Apart from Dutch Jurists, Dicey in England and Beale in the US are its main protagonists.
According to them courts of a country are ordinarily bound to apply the law of their own law.
They cannot enforce the foreign judgements either. This principle applies to private
international law and the protagonists of this assert that under private international law, courts
of not apply foreign law or foreign judgements but they merely recognise and enforce the rights
acquired under foreign law.

Local Law Theory

The local law theory is an offset of jurists of the realist school of jurisprudence. In a sense it is
the extreme application of the doctrine of territoriality. In the words of its American pro
pounder cook, “No court even enforces foreign rights as such. Under our system of the conflict
of laws an American court when asked to give damage for an alleged foreign tort will apply
the substantive law of the other state in question. Although it is often said that the substantive
law of the other state governs the case the word governs is misleading.
The pro-pounders of this theory maintain that when the courts of forum have to decide a case
having foreign elements they always apply their own law, though in doing so they adopt and
enforce as their own law of a rule of a decision identical or at least highly similar through not
identical, in scope with a rule of decision found in the system of law in force in another state
or country with which some or all of the foreign elements are connected, the rule so which
selected being in groups of cases, and the rule of decision which the given foreign state or
country would apply not to the very group of facts now before the courts of the forum.

Theory of Justice
The theory of justice is based of off English Legislative and judicial justice. Based on a
consideration of what English statutes say and what English judges do in cases to which the
conflict of law applies. According to him its premises are threefold:-

i. Sociological
ii. Ethical
iii. Legal.

Sociologically rests on the international need for fair treatment in the private transactions of
individuals. Ethically it reflects the traditions and training of English Lawyers, judges and
legislators as expounders of the justice to deal with parties fairly. Legally it resorts on the terms
of the judge’s oath.

Comity Of Nations

Comity of nations has been explained as the most appropriate phase to express the true
foundation and extent of the obligation of the laws of one nation within territories of another .
Comity thus serves as not only a theoretical but also a legal justification for the resolution of
conflict of laws problems.

The recognition which one nation allows within its territory to the legislative, executive or
judicial acts of another nation having due regard both to international duty and convenience
and to the rights of its own citizens or of other persons who are under the protection of its laws.

The rise of nation states and the emphasis on absolute territorial sovereignty completed a
fracturing of law into subunits based on territory and undermined claims of universal law or
the authority of Canon or Roman law to resolve transnational disputes. Without an overarching
law of sovereign to provide a rule of decision in cases crossing national boundaries on
accounting of why courts should not always just apply their own law in transnational cases
became necessary.

Ulrich Huber

While International comity may have its earliest reference in Roman Law, the Doctrine began
in the same time as nation states emerged in Europe. The birth of nation states beget the more
completely conceptualized view that a sovereign’s laws were limited to its territorial
boundaries. Under this account, though a sovereign enjoyed absolute legal control over all
things, persons and transactions within its territory. As Hugo Grotius explained sovereignty
was not subject to the control of any other power so as to be annulled at the pleasure of another
human will.

The fragmentation of nation states and complete territorial sovereignty bought in conflict of
laws between nations and as a result of which without an overarching law or sovereign to
provide a decxion in cases crossing national boundaries the conflict of law jurisprudence began.

Huber laid down three axioms of conflict of laws which he expounded in the first chapter of
his dissertation. Huber in his first axiom laid down that the laws of each state have force within
the limits of that government and bind all subjects.

Huber’s second axiom detailed that the people are held to be subject to a sovereign authority
who are found within its boundaries whether they are there permanently or temporarily

Huber’s third axiom permitted courts to recognise and enforce the laws of another sovereign
state out of comity.

Justice Joseph Story

He introduced the principle of comity to American Jurisprudence. Like Huber Story viewed
Comity as means of recoiling notions of absolute territorial sovereignty and thus the laws
within a nation’s territory and the conflict of laws brought through travel and commerce
between several states.

The country itself was built on the unification of states and hence different states have different
laws. Story writes to no part of the world is it of more interest and importance than to the United
States since the Union of a national government with already that of 26 distinct states and in
some respects independent states necessarily creates very complicated private relations and
rights between the citizens of those states.
According to Story, It has been argued that Story was the first American scholar
“to develop and consistently hold the doctrine of the complete territorial
jurisdiction of law.” As with Huber, this territorial conception of law had
important outcomes for Story’s conflicts theory.66 Like Huber, Story detailed
that:

“An essential attribute of every sovereignty is that it has no

admitted superior and that it gives the supreme law within its
own dominions on all subjects appertaining to its
sovereignty. What it yields, it is its own choice to yield, and
it cannot be commanded by another to yield it as a matter of
right.
Story also echoed Huber by stating that “whatever extra-territorial force laws are to have,
is the result not of any original power to extend them abroad.

He reiterated the first principle which according to him was that every nation possesses an
exclusive sovereignty and jurisdiction within its own territory. The direct consequence of this
rule is that the laws of every state affect and bind directly all property whether real or personal
within the territory.

Secondly, another maxim or proposition is that no state or nation can by its laws directly affect
or bind property out of its own territory or bind persons not resident therein whether they are
natural born subject

From these two maxims he derived a third that, whatever force and obligation the laws of one
country have in another depends solely upon the laws and municipal regulations of the latter
that is to say upon its own proper jurisprudence and polity.

Therefore, in conclusion, the Comity Doctrine as proposed by Justice Story was that the court
of one sovereign might apply the laws of another sovereign due to the mutual interest and
nullity of the sovereign interests at the issue in conflict. The decision was for each sovereign
to make on its own terms through mutual interest.

Hilton v. Guyot

A French Court had issued a decision against Hilton and others. Which they had unsuccessfully
appealed in France. During the French litigation, Hilton and the others who were US Nationals
residing in New York who ran a business in New York, removed their assets from France.,
Guyot sought to enforce the French judgement against them in the US by filing an action in
New York Federal District court. The district court permitted enforcement of the French
judgement against them in the US by filing an action in a New York Federal district court. The
district court permitted the enforcement on the ground that foreign judgements should be given
the same weight as domestic judgements. An appeal to the US Supreme Court followed.

In resolving the issue the court discussed Story’s comity doctrine as well as various domestic
and international legal materials and restated comity as follows:

“Comity in the legal sense is neither a matter of absolute obligation on the one hadn nor
of mere courtesy and good will upon the other. But it is the recognition which one nation allows
within its territory to the legislative, executive or judicial ats of another nation having due
regard both to international duty and convenience and to the rights of its own citizens or other
persons who are under the protection of its laws.”

After stating this principle, the Court went on to details the various types of judgement that
should be generally entitled to recognition in other jurisdictions. Ex title to a ship or moveable
property within the custody of a court, status affecting persons etc.

The Hilton judgement ultimately replaced the theory propounded by Story with a notion of
comity generally requiring the application of foreign law without the consideration of
sovereign interests subject to the requirement of reciprocity in the area of recognition and
enforcement of foreign judgement.