1.

Introduction to Private
International Law
Private International Law or Conflict of laws is the part of English law which comes
into operation whenever the court is faced with a claim that contains a foreign element.
By foreign element, it means a situation which makes it necessary for the court to
refer to or to examine a foreign system of law in order to give a proper decision.

(a) Definition:
In the words of Cheshire: “Private International Law, then, is that part of 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.”

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

It is a set of rules and regulations that are established or agreed upon by citizens of
different nations who privately enter into a transaction and that will govern in the
event of a dispute. In this respect, Private International Law differs from public
international law, which is the set of rules entered into by the governments of various
countries that determine the rights and regulate the intercourse of independent nations.

Private international law has been defined as law directed to resolving controversies
between private persons, natural as well as juridical, primarily in domestic litigation,
arising out of situations having a significant relation to more than one state.

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

Baty

Private international law is the rules voluntarily chosen by a given state for the
decision of cases which have a foreign complexion.

P Tandon

Private international law is a body of principles determining questions as to

jurisdictions. and questions as to selection of appropriate law, in civil cases which
present themselves for. decision before a court of one state or country, but which
involves a foreign element

(b) Bases : Comity, Convenience and Justice

Comity: Comity is an informal and non-mandatory courtesy that recognizes
legislative, executive, and judicial acts among political entities. It's based on the idea
that it mediates respect for the territorial sovereignty of all states with an interest in a
private international law matter. The doctrine of comity in private international law
states that a jurisdiction must recognize and give effect to judicial decisions made in
other jurisdictions, unless doing so would offend the public. Comity can be
particularly important in cases involving international trade, commerce, and
investment. In these cases, countries need to work together to ensure that their laws
and policies don't hinder the flow of goods and services across borders

Convenience: Convenience is a basic principle of private international law (PIL). PIL

also includes comity and the desire of courts to do justice. The doctrine of forum non
conveniens may justify the dismissal of an action if the court decides that another
forum is more convenient and will best serve the interests of justice.

Justice: According to Dr. Graveson's Theory of Justice, true justice is delivered by

considering legal precedents, good conscience, and equity. The application of the law
is key to ensuring justice prevails. In Indian private international law, the proper law
of a contract is determined on the grounds of justice, equity, and good conscience

(c) Difference between Public International

Law and Private International Law
Public International Law is distinct from Private international Law. Public
International Law is common to all nations. This is not true of Private International
Law which is different for different countries. Private International Law is a part of
Municipal Law of each State like the Law of Contracts, Law of Torts, etc but Public
International Law is a law between States which regulates the intercourse of sovereign
States/ Private International Law is undoubtedly, a part of the law of a State, i.e. a part
of the municipal law. But Public International Law need not necessarily be a part of
the municipal law. Whether and to what extent rules of Public International Law form
part of the Municipal Law of a State is a question on which there are acute differences
of opiniom. As a rule there is no international law in Private International Law;
private International Law is concerned with particular kinds of disputes between
individuals which arise in Municipal Courts-disputes which may fall under the
jurisdiction of two or more States at the same time. As the Municipal Laws of
different States are frequently in conflict with each other in respect of many issues a
system of rules hits been evolved by Municipal Laws to reduce such conflicts. Hence,
Private International Law is also termed as "Conflict of Laws". But as noted earlier,
the rules evolved to avoid or minimise these conflicts are not uniform: but are
different with different States. It must be noted however, that as majority of States
agree (by law-making treaties) to accept uniform rules to avoid conflicts of Municipal
Laws, what is now regarded as rules of Private International Law, to that extent,
would become International Law in the true sense. It must also be borne in mind that
it would not be correct to regard Public International Law and Private International
Law as totally unrelated. Some principles of law such as the rule of audi alteram
partem are common to both. Some rules of Private International Law have been
adopted by courts in settlement of disputes between States in the same way as some
rules of Public International Law are seen to have been applied by courts in deciding
cases involving foreign clement.

Private International Law / Law of

No. Public International Law
Conflicts
Conflict of laws, often called
Public International law is
Private International Law. Private
the body of legal rules,
International Law regulating
1) which applied between
relationship between Private
Sovereign States and other
persons (Natural or Legal) of two
International Personalities.
different States.
Public International law
rules are outcome of Private International law rules are
2)
International custom and framed by the State legislature.
treaties.
Public International law is
enforced by international Private International Law is
3) pressure and fear for example enforced by the concerned State
– breakage of diplomatic executive.
relations, sanctions etc.
In public International Law
In private International Law courts
4) there is no Predetermined
are predetermined.
Court.
Public International Law is Private International Law differ
5)
same for all the States. from state to state.

2. Introduction to Private
International Law
(a) Unification of Private International Law
Need for unification of Private International Law arises primarily because of two
reasons. The internal laws of different countries differ from each other and the Private
International Law rules adopted by different countries also differ from each other.
Therefore unification of laws also takes place in two steps:

1. Unification of Internal laws of the countries of the world.

2. Unification of the rules of Private International Law.

The first step in the direction of the unification of internal laws was taken by the Bern
Convention of 1886 under which an international union for the protection of the rights
of authors over their literary and artistic works was formed. After the First World War
an International Institute for the Unification of Private Law was established at Rome.
The Warsaw Conventions of 1929 which has been amended by the Hague Convention
of 1955 is a very important landmark in that direction. This Convention provides for
uniform rules relating to carriage of goods and persons by air. In the Brussels
Convention of 1922-23 the unification of rules relating to carriage to goods and
persons by sea came into existence. Then came in the Geneva Convention on
International Carriage of Goods by Road of 1956. The Geneva Conference of 1930
resulted in a Convention on the Uniform Law of Bills of Exchange.

On account of basic ideological differences among the countries of the world, it is not
possible to achieve unification of all private laws. Therefore, another method of
avoiding the situation where courts in different countries may arrive at different
results on the same matter is the unification of all private laws. In 1951, a permanent
bureau of Hague Conference was constituted. This has been done under a Charter
which has been accepted by many countries. There are numerous other Charters,
Conventions and International Institutes working towards unifying Private
International Law. But international Conventions can be part of municipal law only
when the same have been recognised or incorporated in the municipal law.

(b) Functions of Private International Law

The functions of Private International Law are threefold namely:-

(a) Jurisdiction: To prescribe the conditions under which the court is competent to
entertain a suit containing a foreign element;

(b) Choice of Law: To choose the relevant foreign law by the application of which
the rights of parties are to be determined, and

(c) Recognition and Enforcement of Foreign Judgments: To specify the

circumstances under which a foreign judgment can be accepted to decide the question
in dispute and to indicate when a foreign judgment can be allowed to be executed in
this country.

The question of jurisdiction has to be examined from three angles; from the point of
view of the plaintiff, from the point of view of the defendant and from the point of
view of the subject matter of the suit. The common law rule is that any person, unless
he is an enemy alien, can invoke the jurisdiction of the court. To exercise jurisdiction,
residence in the country is not necessary. The presence, however transcient so that the
summons has been personally served on him, would be sufficient. There are some
cases, as provided by statutory provisions in England or India whereby jurisdiction
may be exercised over even absent defendants. There are certain persons and certain
subject matters which are exempted from the jurisdiction of municipal courts, for
example, foreign sovereign and their representatives and properties of sovereigns. The
question of jurisdiction is not confined to the competence of the court in which the
case is. instituted. The question of jurisdiction may come in another form i.e, the
competence of a foreign court whose judgment is sought to be made binding on the
opposite party. In order to be binding the foreign court should have jurisdiction to try
that case.

If the court decides that it possesses jurisdiction, the next question is that of choosing
the appropriate law. The particular case before the court may have contact with one or
more foreign systems of law, c.g. a marriage between a man of German nationality
domiciled in England and woman of Italian nationality domiciled in Australia, the
marriage ceremony taking place in New York. A question as to the validity of this
marriage arises in an Indian Court. The point of contact with a foreign system of law
is termed as connecting factor. Here the connecting factor of nationality brings in
German Law and Italian Law. The connecting factor of domicile attracts English Law
and Australian law. The connecting factor of the place of marriage attracts American
Law. Of these different foreign laws, which law is to be selected by the Indian Court?
The question is answered by rules of Private International Law. The Indian Private
International Law requires the court to decide formal validity of marriage by applying
the law of the country where the marriage was celebrated. In this case the American
law. The law thus indicated or chosen is called lex causae.

It must not be assumed that only one foreign law will be indicated as the lex causae. It
is possible that different aspects of the same case may be governed by different
foreign laws. For example in the above case, essential validity of marriage is
governed by law of the country where the parties were domiciled at the time of
marriage-the English law and Australian Law.

It is important to note that the function of private international law is complete when
it has chosen the appropriate system of law. Private International Law does not
provide a direct solution to the points of dispute in the case. The task of private
international law, in this context, has been appropriately compared with that of an
inquiry office at a railway station where a passenger can ascertain the platform at
which his train arrives. Take for example a case in an English Court which involves a
contract made in France. If the defence set up is that the formalities for making a
contract are not complied with, private international law provides that the formal
validity of a contract is to be determined by the law of the place where the contract
was made; i.e. French Law. The function of private international law is over when it
has indicated the French law as the lex causae. It is for the, party to prove the relevant
rules of the French law for the Court to apply - the same, and decide the dispute.

3. General Principles : Successive

Stages in a Conflict of Laws case
Navigating a conflict of laws case involves several critical stages, particularly when
determining jurisdiction—the authority of a court to hear and decide a case. These
stages are foundational in ensuring that a legal dispute is adjudicated fairly and in
accordance with relevant laws. Here, we'll explore the general principles involved in
these successive stages, focusing on the context of India for specific statutory
provisions.

(a) Choice of Jurisdiction

Definition

The choice of jurisdiction involves determining which country's or state's courts have
the authority to hear a case involving cross-border elements. This decision is crucial
for the parties involved, as it can significantly impact the applicable law, procedural
requirements, and overall outcome of the case.

Process

 Identifying the Relevant Courts: Initially, it's necessary to identify the courts that potentially
have jurisdiction over the dispute based on various connecting factors.
 Applying Jurisdictional Rules: Jurisdictional rules, which may vary significantly from one
jurisdiction to another, are then applied to determine which court is most appropriate for
hearing the case.

(b) Basis of Jurisdiction

Definition

The basis of jurisdiction refers to the legal grounds upon which a court claims its
authority to adjudicate a dispute. These grounds can include the domicile or residence
of the parties, the location where a contract was executed or a tort occurred, or the
presence of assets within the jurisdiction.

Types of Jurisdiction

 Personal Jurisdiction: Relates to the court's authority over the parties involved in the dispute.
 Subject Matter Jurisdiction: Concerns the court's authority to hear the type of dispute
presented.
 Territorial Jurisdiction: Involves the geographical area within which a court has authority.

(c) Statutory Provisions Relating to Jurisdiction in India

India's approach to jurisdiction in conflict of laws cases is governed by a mixture of

statutory provisions and judicial principles. Some key statutes include:

1. The Code of Civil Procedure, 1908 (CPC):

 o Section 20: Deals with territorial jurisdiction, specifying that a suit shall be instituted
where the defendants reside or work for gain, or where the cause of action, wholly
or in part, arises.
o Section 16 to 19: Provide for cases related to immovable property, marriage, wills,
and other matters that specify where a suit can be filed.

2. The Indian Penal Code, 1860 (IPC):

o Addresses the jurisdiction of criminal courts in India and includes provisions for
crimes committed outside India under certain conditions.

3. The Arbitration and Conciliation Act, 1996:

o Offers an alternative dispute resolution mechanism, detailing how arbitration

proceedings should be conducted, including the aspect of international commercial
arbitration and its jurisdiction.

4. The Special Marriage Act, 1954, and The Hindu Marriage Act, 1955:

o These acts provide for jurisdictional aspects concerning marriage, divorce, and other
family matters, often involving NRIs (Non-Resident Indians) or parties from different
states or countries.

4. General Principles : Successive

Stages in a Conflict of Laws case
(a)
Classification/characterization/categorizatio
n/allocation of juridical category to the
foreign element case

(b) Incidental Question and Time Factor in

private International law

(c) Selection of lexcausae – Conflict of

Connecting factors
The lex cause has to be ascertained by applying the correct choice of law rule. The
choice of law rule will depend on some connecting factor, such as domicil, situation
of the property, place of celebration of marriage etc. The decisive connecting factor
may not be the same in all systems of Private International Law. As explained earlier,
when a man of West German nationality domiciled in Russia dies leaving movable
properties in England, the decisive connecting factor in English Private International
Law is domicile but in the eye of Italian private International Law, it is nationality.
Even when the connecting factor is the same, the meaning given to the connecting
factor may be different in two legal systems. For example, in the above case, let us
suppose that French and English Law agree on the connecting factor ie. domicile.
When you go to the next step and try to ascertain the place of domicile you will find
that the English and French conceptions of domicili are diametrically opposite.
Consequently, the place of domicile according to English Law may be Russia, but
according to French Law it may be some other country. When a conflict like this
arises, it is necessary to decide which of the differing conceptions about the
connecting factor should be accepted. According to English Private International Law
the English judge looks exclusively to the meaning given by" English Law and the
interpretation given by lex fori prevails.

The selection of the lex causae, or the law governing the cause, is a pivotal step in
Private International Law (PIL) when addressing cross-border disputes. This process
involves determining which jurisdiction's substantive law will apply to a particular
case. The challenge often lies in the conflict of connecting factors, where multiple
jurisdictions could potentially apply based on different aspects of the case (such as the
location of the property, the domicile of the parties, the place of contract formation, or
the site of a tortious act). Here's a closer look at how the selection of lex causae is
approached and how conflicts of connecting factors are resolved.

Selection of Lex Causae

Definition

Lex causae refers to the law that the court identifies as governing the substantive
issues of a case involving foreign elements. The choice of lex causae is guided by
choice of law rules, which are designed to select the most appropriate legal system or
jurisdiction's law that should apply to the dispute.

Process

1. Identifying Relevant Connecting Factors: The first step involves identifying the connecting
factors that link the legal issue to specific jurisdictions. These factors might include the
domicile or nationality of the parties, the location where a contract was signed or performed,
or where a tort occurred.
2. Applying Choice of Law Rules: Courts then apply choice of law rules to determine which
jurisdiction's law should govern. These rules vary by jurisdiction but typically aim to select
the law with the closest and most significant connection to the case.
3. Selection of Lex Causae: Based on this analysis, the court selects the lex causae, which will
be applied to resolve the substantive legal issues of the case.

Conflict of Connecting Factors

Challenges
Conflicts arise when different connecting factors point towards the application of
different jurisdictions' laws. Resolving these conflicts requires careful analysis to
determine which connecting factor should be given precedence.

Resolution Methods

 Most Significant Relationship Test: Courts often use the "most significant relationship" test
to determine which jurisdiction has the closest connection to the dispute. This involves a
qualitative assessment of the connections.
 Interest Analysis: Some jurisdictions employ interest analysis to resolve conflicts, focusing on
which jurisdiction has the most significant interest in the outcome of the case.
 Escape Clauses: Escape clauses allow courts to deviate from strict choice of law rules if
applying them would lead to an unjust or inappropriate result.

Case Law Example

 Auten v. Auten (1954): This New York case is notable for its application of the "center of
gravity" or "most significant relationship" test in a contract dispute. The court considered
various factors, such as the place of contracting, negotiation, and performance, to determine
which state's law had the most significant connection to the contract.

Conclusion

The selection of lex causae in the presence of conflicting connecting factors is a

nuanced process that requires balancing legal principles with the specifics of each
case. By focusing on the jurisdiction with the most significant connection or interest
in the dispute, courts aim to apply the most appropriate and fair legal system's law.
This approach respects the complexities of international legal disputes and seeks to
ensure justice is served in a globally interconnected world.

(d) Selection of lexcausae – Determination

based on lexfori

(e) Selection of lexcausae – through the

connecting factor

5. General Principles : Successive

Stages in a Conflict of Laws case
(a) Application of lexcausae

(b) Three meanings of Lex Causae

(c) Renvoi : Partial and Total Renvoi
The doctrine of Renvoi is one of the very important and vital subjects of Private
International Law, or Conflict of Laws. Because sometimes court sees that the issue
will be decided ni accordance with the law of another country, it is the time when
doctrine of renvoi plays its role in solving the problem.

Renvoi is a technique for solving problems which arise out of differences between the
connecting factor used by English law and that of the law to which the English
connecting factor leads.

Renvoi is a French word, which literally means "to send back" or "return".

Re Ross case A British national and domiciled in Italy. She died in Italy and left there
movable and immovable property as well as some movable property in England. She
had made a will about her movable and immovable property in Italy and England.
This will was valid in English law but invalid in Italian law as she did not leave half
of the property for her son. As she was domiciled in Italy, the English court referred
the case to Italian court. Under English conflict of laws the issue was governed by the
law of the domicile of the testatrix (Italian law). However, under Italian conflict of
laws, the issue was governed by the nationality of the testatrix (English law). Hence,
the Italian court referred the issue back to the English court, which held that the will
was valid.

Forgo case Forgo, an illegitimate Bavarian national, was born with a domicile in
Bavaria, but lived most of his life in France without ever acquiring a "domicile"under
French law. He left movable property in France but no relatives except for some
remote collateral relatives of his mother. These could not succeed him under French
law, and under French law the property, being ownerless, would go to the French state.
Under Bavarian law they could succeed. The French Private international law the law
to be applied was the lex patriae. i.e. law of nationality namely the Bavarian law.
Bavarian Law was taken in wide sense of the whole law of Bavaria including
Bavarian Private International law. According to Bavarian Private International law
succession to movable property (intestate) was governed by the law of the place (lex
situs). This reference was accepted by the French court and the French Law of
Succession was applied, thus depriving the right of succession to Forgo's collateral
relatives.

TOTAL OR DOUBLE RENVOI

Total or double renvoi is also known as "foreign court theory". Cheshire and North
defines total renvoi in these words: "This demands that an English judge, who is
referred by his own law to the legal system of a foreign country, must apply whatever
law a court in that foreign country would apply if it were hearing the case."The
English judge is required to make an imaginary journey to the Foreign land (lex
causae) and sit in the court of that country.

Collier vs Rivaz A British subject who died domiciled in Belgium made a will which
was valid according to English law, but not according to Belgian Law. At that time
the validity of the will should be tested by the law of the place where the testator was
domiciled at the date of his death. If the case were to arise in a Belgian Court, that
court would apply the English law as the law of nationality. The validity of the will
was tested by English Law and the will was held valid.

Re Annesley Annesley an English woman left a will; according to English law, she
died domiciled in France but, according to French law, she had not acquired a French
domicile because of a failure to comply with registration formalities. The
testamentary dispositions were valid by English law but invalid by French law
because she had failed to leave two thirds of the property to her children. English
Private International law referred the question of validity of will in the law of
domicile, namely, French law. French law was taken in wide sense including French
Private International law. French Private International law would have applied law of
nationality, i.e. English Law and the English law would refer the matter back to
French Law. Partial renvoi is accepted by the French law and therefore that reference
would be accepted the French Internal law would be applied. Thus, the English court
applied the French law and held the will to be invalid.

ADVANTAGES OF RENVOI Firstly, on resorting to foreign choice of law rules,

the court avoids a foreign internal law that has no connection with the propositus.
Secondly, it is argued that it promotes the reasonable expectation of the parties. It
might be argued that this was the case in Re Annesley but it is difficult to imagine
how the same could have been said of the result in Re O'Keefe. Thirdly, it is argued
that renvoi produces a degree of uniformity of the decision, terms of the governing
law at least, in cases where English choice of law rules put the premium in this, that is,
where the lex situs is applied on the basis of effectiveness. Moreover, it is arguable
that such degree of uniformity is not achieved by the single renvoi doctrine. Against
this, it must be observed that, in a world in which different connecting factors are
used, then such a degree of uniformity is probably unattainable. Moreover, it is
arguable that such a degree of uniformity is not achieved by the single renvoi doctrine;
if both country A and country B adopt connecting factors of domicile and nationality
respectively and then both adopt the partial renvoi doctrine, then the result wil differ
according to where the case si litigated. Fourthly, In respect of the total renvoi
technique, while, ni principle. it should produce uniformity of decisions, it can, in
practice, be applied only by one country because, if the lex cause were also to apply it,
then there would be no way out of the revolving door. The experience since 1945 is
that uniformity of decision making is more likely to be achieved by the implementing
of internationally agreed conventions. It is also argued that the technique of renvoi
can be manipulated to avoid applying an inappropriate foreign rule, however, the
same object can be achieved by the development of appropriate public policy rules.

DISADVANTAGES O F RENVOI

It has been argued that the study of the cases indicate that English court concludes by
subordinating its own choice of law rules to those of another country. Against this,
however, it can be argued that this would not happen in those cases where the foreign
rule offended some particular rule of public policy.

Secondly, its opponents argued that the application of the doctrine required to
familiarise himself with a) The foreign internal law b) The relevant choice of law
rules c) The policy, if any of the foreign law towards the doctrine law towards the of
single renvoi. This limitation of the doctrine of renvoi is that it normally involves
calling detailed expert evidence as ot the state of foreign law; normally, parties wil
seek ot avoid such acourse.

Thirdly, the opponents of renvoi argued that having regard to the fact that nationality
is the connecting factor most connecting factor most commonly employed ni the civil
law world, the English courts out itself ni a position of being unduly influenced by
nationality when there is no concept of English nationality having regard to the states
of U.K.

6. General Principles: Proof of

Foreign Law
(a) Proof of Foreign Law
Definition of Foreign Law:

Foreign laws refer to the laws of a foreign country, or of any other state (Black's Law
Dictionary). It'is the law of any jurisdiction having a different system of law from that
considering the issue (David Walker, The Oxford Companion to Law, (1980) p 479).
They are laws enacted and in force in a foreign state or country.

Question of fact: Foreign law is usually not binding on the court where an issue is for
consideration as anything which is not deemed to be law in a country is a fact and
must be proved as a fact. The courts do not judicially take notice of foreign laws. It is
referred to as "jus receptum". The onus (burden of proof) lies on the party who relies
on a foreign law. One exception in English law is introduced by British law
Ascertainment Act of 1859. According to this Act, if foreign law involved is the law
of "some British territory" the court has the power of ascertaining that law and
applying it, although it has not been pleaded or proved by the parties.

Generally, the appellate courts do not disturb the findings of fact by the trial court but
this position is different with respect ot foreign law. In Parkasho vs. Singh (1968
p.233 at 250) the trial court's finding was reversed as an erroneous decision on a point
of foreign law stating that, "it is a question of fact of peculiar kind". Mode of Proof:
When foreign law is applicable by virtue of the conflict of laws rules of the forum,
there are several methods by which that law can be made known to the court: (1) by
judicial notice, (2) by pleading and proof and, (3) by presumption. These methods are
governed by the lex fori. The courts will not take judicial notice of foreign law unless
authorized to do so by the statute. Foreign law when relevant operates as fact and not
as law. Therefore the party who relies on a foreign law must plead it and prove by
evidence. Ajudge cannot decide a case containing foreign elements according to his
personal knowledge of the foreign law. Even if the judge had previously practiced the
law of that other country, his knowledge is irrelevant. The consequences of treating
foreign law as fact would be that:
 1. Foreign law must be pleaded like a fact;
2. Foreign law must be proved like a fact;
3. Foreign law questions go to the jury in appropriate cases;
4. If facts are not considered on appeal, foreign law cannot be considered on appeal; and
5. The holding of a court on questions of foreign law in one case is not evidence in other cases
involving the same foreign law problems; and holdings of appellate courts on foreign law do
not have the force of stare decisis. In (Pfleuger vs. Pfleuger case); where an objection is
raised before trial to the omission to plead foreign law, the defect cannot be cured by judicial
notice nor by presumption but should be pleaded and proved just like a fact.

Competent witness

No clear-cut answer is given by English decisions. Where the case turned on foreign
written law - statutes, codes, proclamations or decrees was to be proved in the first
instance by copies of the statutes or decrees themselves; oral testimony alone of the
foreign written law was insufficient.

According to the common law rules, a copy of the foreign statute was required to be
authenticated by exemplitication, the testimony of a witness who had examined the
original, or by the certification of a judicial officer of the foreign jurisdiction. The
Judge can only apply local law. The court can evaluate and interpret the text of a
foreign law or foreign decision or the opinion of an academician only with the
assistance of expert evidence before it. Unwritten Foreign law may be proved by oral
testimony of expert witnesses subjected to cross examination. The testimony may
include the unwritten law as collected from the reported decisions of the foreign
courts and the treatises of learned men.

The general principle is that, the witness should have practical experience (a foreign
judge, legal practitioner, ambassador, embassy official, a reader in law, a Roman
Catholic Bishop have been held to be competent) in that particular legal system which
caused him to familiarize himself with the law to which he testifies. Personal
knowledge of the foreign law of a judge is not sufficient. In "Frith vs. Sprague" (14
Mass.Rep.455) ti was held that Foreign laws may be proved by the testimony of
witnesses acquainted with such laws.

(b) Grounds for exclusion of foreign law:

Public policy, Revenue laws, Penal laws
There can be no doubt that the forum controls the cases that come before it and the
forum must have power to reject suits, both domestic and foreign, which offend
against some fundamental principle of its operation. The general principle was clearly
expressed by Lord Parker in Dynamit Actien Gesellschaft vs. Rio Tinto Zinc; where
the learned judge stated: Whenever the courts of this country are called upon to decide
as to the rights and liabilities of the parties to a contract, the effect on such a contract
of the public policy of this country must necessarily be a relevant consideration.
Every legal decision of our courts consists of the application of our own law to the
facts of the case as ascertained by appropriate evidence. One of these facts may be the
state of some foreign law, but it is not the foreign law but our own law to which effect
is given ... As has often been said, private international law is really a branch of
municipal law and obviously there can be no branch of law in which the general
policy of such law can be properly ignored. There is some authority for the view that,
in England, there are three forms of legislation that will not be enforced by English
courts:

(a) Foreign revenue laws; (b) Foreign penal laws; and (c) Fundamental public laws.

7. Domicile
There are three kinds of domicil - (a) domicil of origin, (b) domicil of choice and (c)
domicil of dependence. Domicil of origin is assigned by law to a child when it is born.
In other words it is the domicil which is communicated to a person by operation of
law at the time when that person is born. It is the domicil of the father if the child is
legitimate, if illegitimate it is the domicil of the mother. If a foundling, it is the
domicil of the place where it is found. Domicil of choice is the domicil which any
independent person of full age is free to acquire by his voluntary act. Domicil of
dependence is the domicil of dependent persons such as infants and married women.
The domicil of dependence is dependent on and changes with, the domicil of some
one else.

(a) General principles

There are four general rules (a) No person can be without a domicil

This rule is based upon the practical necessity of connecting every person with some
legal system by which questions affecting his family relations and family properties
are to be determined. It is a settled principle" said Lord Westbury in the leading case
of Udry & Udny (see below), “that no man shall be without à domicil, and to secure
this result the law attributes to every individual as soon as he is born, the domicil of
his father, if the child is legitimate, and the domicil of the mother if illegitimate. This
has been called the domicil of origin and is involuntary". The domicil of origin
prevails until a new domicil has been acquired. But the moment a person loses his
acquired domicil, the domicil of origin springs back to him. No person can be legally
without a domicil, but he may not have any home at all in any country whatsoever. He
may be a wanderer, or a sea man with no house except his cabin

(b) A person cannot have more than one domicil at a time A person cannot have
two domicils simultaneously. The object of this rule is the same as that of the first one,
i.e. to connect a person with a definite legal system. Domicil signifies connection with
a territory subject to a single legal system of law - what is some times called a "law
district". In a federal state where the legislative authority is distributed between the
Central and State legislatures, the law district is, generally, the State where the
concerned person has established his home. For example, a resident in U.S.A. is not
normally domiciled in the U.S.A. as such but in one of its States. The position is same
in India although, there is no dual citizenship unlike the case in U.S.A. At one time it
was thought that there can only be one Indian domicil and no State domicil. The
Indian Supreme Court has held that an Indian citizen does possess a State domicil in
the state where he has set up his home. In D.P. Joshi v. State of Madhya Pradesh
(1955 S C.R. 1215 at 1223), the question arose whether "there can be such a thing as
Madhya Bharat domicile apart from Indian Domicile”. Venkitarama lyer, J., for the
majority quoted with approval the following statement from the Halsbury's Laws of
England. ”Where that State comprises more than one system of law, a domicil is
required in that part of the State where the individual resides" and went on to say
“Under the Constitution, the power to legislate on succession, marriage and minority
has been conferred under entry 5 in the concurrent list on both the Union and the State
legislature and it is therefore quite conceivable that until the Centre intervenes and
enacts a uniform code for the whole of India each State might have its own laws on
those subjects and then there could be different domiciles for different States. We do
not therefore, see any force in the contention that there cannot be a domicil of Madhya
Bharat under The Constitution”. The doctrine of one man-one domicil can however be
modified by Central legislation. For certain purposes, a citizen of a Federal State may
be invested with domicil in the whole country-an Indian domicil, Australian domicil,
etc, and for other purposes he may have particular State domicil.

(c) Presumption in favour of an existing domicil:

An existing domicil is presumed to continue until it is proved that a new domicil has
been acquired. Hence the burden of proving a change of domicil lies invariably on
those who allege that a change has occurred. If the evidence adduced is conflicting or
is not convineing then court has to decide in favour of existing domicil. Strong proof
would be required in order to displace a domicil of origin by a domicil of choice. It
has been said that when displacement of domicil of origin by domicil of choices is
alleged, "The standard of proof goes beyond a mere balance of probabilities." •

(d) Domicil is determined according to English low:

In a case involving foreign element, the question as to where a person is domiciled is

to be determined according to English concept of domicil and not according to the
foreign concept. In other words, for purposes of English Private International Law,
domicil means domicil in the English sense. Thus in the eye of English law, a person
domiciled in England may acquire a domicil of choice in France if he satisfies the
English rules, although he may fail to satisfy the French rules.

(b) Elements : Intention and residence

8. 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. Atentative definition of
'domicile' would be "permanent home'

Lord Cranworth ni 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 wil very much help
you do it.'
(a) Domicile of Origin
Domicile of origin si 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 ni 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 is a settled principle of law that no man shall be without a domicile, and to
secure this 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 si by law created and
ascribed, to suppose that it is capable of being by the act of the party entirely
obliterated and extinguished."

In these circumstances, the House of Lords held that, even if Colonel Udny had
acquired a domicile of choice in England, he had abandoned it by departing for
France and, at that point, his Scottish domicile of origin revived.

(b) Domicile of Choice

There are two requisites for the acquisition of a domicil of choice. They are residence
and intention. It must be proved that the person in question has established his
residence in a particular country with the intention of remaining there permanently.
These two elements - factum and animus - must concur.

Lord Westbury in Udiy vUdny, described the element as follows: Domicil of choice is
conclusion of inference which the law derives from the fact of a man fixing
voluntarily his sole or chief residence in a particular place with the intention of
continuing to reside there for an unlimited time. It must be a residence not for a
limited period or a particular purpose, but general and indefinite in its future
contemplation". The required intention is the intention to reside in a country
permanently and indefinitely. This intention is absent if the concerned person
contemplates some event in future on the happening of which he entertains the idea of
changing his residence. It has been affirmed by the House of Lords more than once
that the present residence of a man is not to be equated with domicil if he
contemplates even some remote or uncertain event whose occurrence at some
indeterminate time in the future might cause him to leave his country of residence. If
this possibility is present in his mind even to reside in the country indefinitely is
regarded as not sufficient. This extreme view can be illustrated by taking two House
of Lords' decisions. (a) Winans v. A.G (1904) A.C. 287: Winan's domicil of origin
was Maryland in the U.S.A. and he was born in the U.S.A. Till the age of 26, he was
engaged in his father's business in the U.S.A. Then he left U.S.A. for Russia and for
about 10 years he was employed by the Russian Govt. in building warships to be used
against England. He, then, became afflicted with tuberculosis and being advised by
doctors to reside in Brighton in England, he first rented rooms in Brighton and later
took on lease two houses there. Till his death after a period of about 38 years, he
resided in England although he spent considerable parts of every year to visit Russia
and Germany. But he never set his foot on the U.S.A. after he left it in his youth. He
died in England leaving a huge fortune. The question arose as to where he was
domiciled at the time of his death. The fact was that Mr. Winans for the last thirty-
eight years of his life, had principally resided in England and this raised a strong
presumption in favour of English domicile. But residence, however long without the
requisite intention is not enough for a person to acquire a domicil of choice and the
crucial question was whether he had the intention of making England his permanent
home. There was no direct evidence as to what his real intention was. So, the court
had to examine the details of

(c) 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 1of "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 a
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.

Puttick vs. AG The petitioner a German National and domicile of Origin was arrested
in Germany and charged with the number of serious offence. While on bail, she
absconded and using illegally obtained a passport of another German national came to
England and married an Englishman in 1975. The question before the court was
whether she had acquired an English domicile. It was held that rule of unity of
domicile of husband and wife had been abolished by Domicil and matrimonial
proceedings act 1973 and therefore, she did not acquire domicile in England. The
court further that she did not and could not acquire domicile in England as she was
staying in England to avoid it trial in Germany and not a set up a permanent home.
The illegal entry and residence according to the court barred her from acquiring and
English domicile of choice. The Indian statutory law does not allow English law. The
Indian Succession act, 1925, Section 15 and 16 incorporate the general rule: on
marriage the wife acquires the domicile of her husband during the coverture her
domicile is the domicile of her husband. Then it is laid down that wife acquire her
own domicile in the following two cases: (1) If wife is living separately under the
degree of the court, or

(2) If husband is undergoing a life sentence.

Prem Pratap vs. Jagat Pratap A German domicile women married a domiciled
Indian and setup matrimonial home in India. After some time the husband left the
wife. The wife filed a suit for maintenance in Indian Court. The main defence of the
husband was that on abandonment of the wife by him, the wife's pre-marriage
domicile had revived and therefore the court has no jurisdiction to entertain the
petition. Rejecting this plea, the court observed that during coverture domicile of the
wife remains that of the husband.

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 tlie mother of an illegitimate child has died, or both parents have, ni 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 fi 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 o t h e r 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
wil change with that of his father. On the other hand, fi aperson 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.

(d) Domicile of Corporation

One of the important question status of the artificial legal person like a company or
corporation are governed by the same law that governs the status of an individual. i.e.
The law of domicil. The company is domiciles in the country where it is incorporated.
Every individual on birth gets a domicile by operation of law, namely the domicile
origin. So also, a company, the movement is brought into existence is given a
domicile of origin. i.e. the country of incorporation. But there is one difference. An
individual can change his domicil by acquiring domicile of choice. This is not
possible in the case of corporation. The Corporation throughout its existence has only
one domicile- the place of incorporation.

NATIONALITY OF CORPORATION In conflict of laws cases the nationality of

corporation does not usually figure as relevant issue. According to English law a
corporation is regarded as the national of the country where it is incorporated.

PRESENCE We have seen that and English Court gets jurisdiction over a person by
his mere presents. The same principal applies to artificial persons like corporations. It
is not necessary that a corporation should be resident or domiciled or incorporated
within the jurisdiction. The question therefore is when can a corporation be said to be
present ni the jurisdiction. The answer is 'by doing business'. The only way ni which
artificial entry can show its presence is by transaction of business. The business must
have been done in England not merely done with England. This is ascertained by
examining whether an agent have been employed in England with authority to enter
into transaction binding on the Corporation. If he only receives. offers in England
which he transmits abroad for acceptance there is no business done in England. It is
also necessary that agent must have operated at a fixed place of business for a definite
period of time, ti does not matter that place of business is temporary or that the time
of business is very short.

RESIDENCE Residence of corporations is very important as the basis of liability for

income tax is residence, not domicile. It becomes necessary to determine whether a
foreign Corporation is resident in England. Residence depends upon control. A
company or corporation is regarded as resident in the country where the centre of
control exist, i.e. the place from where its affairs are controlled. The place of
incorporation is not at all decisive; it is only one of the factors to be taken into
consideration in determining where the centre of control is located.