PRIVATE INTERNATIONAL LAW

UNIT 1. INTRODUCTION TO PRIVATE INTERNATIONAL LAW

(a) Definition
(b) Bases : comity, convenience and justice
(c) Difference between Public International Law and Private International Law

DEFINITION:

1) Cheshire: Private International Law comes into play when the issue before the court affects some facts,
events or transactions that is so closely connected with a foreign system of law as to necessitate recourse to
that system.
2) Dicey & Morris: Private International Law consists of rules which do not directly determine the rights &
liabilities of a person rather it determines the limits of jurisdiction & procedural questions to be exercised by
the courts & also the choice of law.
(rights of parties is as per the domestic laws and jurisdiction)

REASONS FOR APPLYING FOREIGN LAW

1. Comity of Nations: One nation applied the law of another to show its regard towards it. The earliest
proponent of this view was John Voet, a Dutch Jurist. The view taken by the earlier jurists is that Int Law
whether Pub/Pvt is based on comity and mutual respect among nations. However, modern jurists do not agree
with this view. As Cheshire says, “The application of foreign law implies no act of courtesy, no sacrifice
of sovereignty.” The reality is that Pvt Int Law deals with individuals and not sovereign states and therefore
foreign law will be applied if it is required to do so to achieve justice between the parties.

2. Necessity: the other explanation why the foreign law in applicable is because it is necessary for the
determination of rights of parties. In the example of the contract in China, if the court in Kolkata applied
Indian Law, it will not only be unjust but also unnecessary as it will defeat principle or the terms if the contract.
Similarly, if a court in Egypt applies Egyptian law on whether an adopted son by an Indian Hindu in India is
his legitimate child then also it will be unnecessary and unjust as Egyptian law does not recognise adoption.

3. Justice and Convenience: Graveson defines justice as follows, "It is to a great extent a legal reflection of
ethical and moral values conditioned by time, place and circumstances, much as the concept of reasonableness
in common law is a reflection of contemporary social values.” Graveson also propounded a subsidiary
principle to justice. He says that the court applies foreign law because its application is convenient, i.e., if
there are two possibilities the law will select one and follow it. Therefore, the rule of convenience is
supplementary to the principle of justice. For example, the courts will apply 'lex situs' in a property dispute
that is where the property is situated to decide the property related matter.

DISTINCTION BET PUB AND PVT INT 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.

UNIT 2. INTRODUCTION TO PRIVATE INTERNATIONAL LAW

(a) Unification of Private International Law

(b) Functions of Private International Law

UNIFICATION OF PIL (AVOIDING CONFLICT)

The lack of unanimity in the Private International Law of different countries can be reduced in two ways. The
first is to bring about unification of Internal Laws of various countries. For example, Laws regarding
aircraft and air carriage have been unified by International Conventions. It is one of the tasks of United Nations
Organisation to bring about uniform rules in matters of International importance.

The second is the unification of the rules of Private International Law. If the rules of private International
Law are unified, they will pass into the realm of Public International Law. The consequence will be that the
same Law will be applied irrespective of the country where the suit is instituted. A uniform code of Private
International Law applicable to all the States is highly desirable. Several attempts have been made to reduce
the conflict between different systems of Private International Law and evolve common rules in at least certain
very important areas (Hague Conferences on Private International Law). But so far, no noticeable result has
been achieved in this field.

Illustration: "X" an Italian national domiciled in India dies leaving movable properties in England. How will
the English Court distribute the movable property? English Private International Law requires this question to
be decided with reference to the lex domicile i.e. the Italian Law. If this case were to arise in a French Court,
the French Private International Law will direct the Court to decide the question with reference to the lex
patriae (law of nationality) i.e. the Italian Law.

Dictionary meaning of unification is “being united or made into a whole.”

A hundred years ago, many lawyers believed that the law of individual nations could, and would, eventually
become unified. In a well know speech made in 1888, Ernst Zitelmann advanced a case for “global law”.
According to his argument, because the formalities of legal provisions are common everywhere and the policy
goals are, or are going to be shared by every civilized nation, the law of every nation will in the end converge.

Now, it has been said earlier that the need for private international law arises because the internal laws of
different countries differ from each other. If the internal laws of the countries of the world lay down uniform
rules, probably there will not be any need for private international law. But then, difference is not only in the
internal laws of different countries but also in the private international laws of countries, on account of which
sometimes conflicting decisions are pronounced by the courts of different countries on the same matter. Thus,
the need for the unification of rules of private international law arises.

• There are two modes for unification of private international law:

1. Unification of the internal laws of the countries of the world, and
2. Unification of the rules of private international law

In 1951, a permanent bureau of Hague Conference was constituted to look after this issue. The purpose of the
Hague Conference on Private International Law (HccH) is to work for the broad unification of the rules of
private international law. HccH develops and supports international conventions in the domains of protection
of children, family and property relations, legal cooperation and litigation, as well as commercial and finance
law.

Today, the International Institute for Unification of Private Law (UNIDROIT) looks after this matter. It is an
independent intergovernmental organization with its seat in Villa Aldobrandini in Rome. And its purpose is
to study the needs and methods for modernizing, harmonizing and coordinating private, and in particular
commercial law, as between states and group of states and to formulate uniform law instruments, principles,
and rules to achieve those objectives. It was set up in 1926 as an auxiliary organ of the League of Nations.
The Institute was re-established in 1940 on the basis of multilateral agreement, the UNIDROIT Statute. As of
2014, UNIDROIT has 63 state members from over 5 continents.

BENEFITS DERIVED FROM UNIFICATION

• If such rules are unified then there would be no conflicting judgments on the matter involving foreign
elements by different courts.
• unification of laws will make the court proceedings less time consuming, as the courts will be aware
of what laws are applicable in a matter, and would not have to spend time in deciding the applicable
substantive law in the matter.
• as it is the era of globalization and people get involved in personal and commercial relationships often,
therefore, if there is unification then there would be less conflict at the first place, and if it is still there,
then it would be easy to settle the dispute quickly. Also, due to unification world can be brought up on
same platform. If states have contradictory rules, and benefits of avoiding the contradiction are large
enough then there will be an incentive for states to choose to unify their laws.
FUNCTIONS OF PIL

Functions of Private International Law

1. Jurisdiction:
• To prescribe the conditions under which the court is competent to entertain a suit containing a foreign
element
• This has to be examined from three angles: POV of
Plaintiff
Defendant
Subject matter of suit
• Common law rule: Anyone except enemy alien can invoke jurisdiction of the court.
2. Choice of law
• To choose the relevant foreign law by application of which the rights of parties are to be determined.
• Eg, Man of German nationality domiciled in England and Woman of Italian nationality domiciled in
Australia marries each other in New York. If validity of marriage is questioned which country’s law
will be applicable?. The Indian PIL requires court to decide validity of marriage by applying the law
of country where the marriage was celebrated, which is American law in this case/ This is called lex
cause.
• Function of PIL is complete when it has chosen appropriate system of law.
3. Recognition and enforcement of foreign judgements
• To specify the circumstances under which a foreign judgment can be accepted to decide the question
in dispute and to indicate when a foreign judgement can be allowed to be executed in this country.

UNIT 3. GENERAL PRINCIPLES: SUCCESSIVE STAGES IN A CONFLICT OF LAWS CASE

(a) Choice of Jurisdiction

(b) Basis of Jurisdiction
(c) Statutory provisions relating to jurisdiction in India

CHOICE OF JURISDICTION

The question of jurisdiction has to be examined from three angles, from the point of view of the plaintiff, the
defendant and of the subject matter of the suit. The common law rule is that any person unless an enemy alien,
can invoke the jurisdiction of the court and to exercise this
residence in the country is not necessary. The presence however transient so that the summons can be
personally served would be sufficient.

BASIS OF JURISDICTION

The subject of jurisdiction is a frontier zone in which Public International Law and Private International Law
are equally involved. Many of the rules discussed below, particularly those relating to the exemption from
jurisdiction are equally applicable in the case of public international law.

By jurisdiction is meant the power of a court to hear and adjudicate an issue on which a decision is sought.
Jurisdiction may pertain to person or to property. At common law, all persons in the world may invoke
jurisdiction of the English court except an alien enemy. A person may become amenable to the jurisdiction by
his mere presence within the territorial jurisdiction of the court. Physical presence in the sense that process
has been served on him personally is the only requirement for exercising jurisdiction, although he is a foreigner
in the course of transit to some other country and although the cause of action has no factual connection with
England. This still continues to be the basic principle of English law, with certain statutory modification. In
what are called actions in rem (proceedings against a ship or other chattel) jurisdiction depends upon the
presence of the res in England. Under certain circumstances, the court may exercise what is called "assumed
jurisdiction" against absent defendants. This assumed jurisdiction was introduced by the common Law
Procedure Act, 1825. In India, rules as to jurisdiction are found in the Code of Civil Procedure.

PERSONAL IMMUNITY

There is no limit to personal immunity. Even if the sovereign comes under an assumed name, and enters into
commercial or other ordinary transaction in the guise of an ordinary private person, no action can be
entertained against him, if he objects to jurisdiction. Waiver of jurisdictional immunity cannot be implied
against a sovereign. The waiver should be express and unequivocal.

PROPRIETARY IMMUNITY

Proprietary immunity extends to the following three cases:

(a) Where the sovereign is the admitted owner of the subject matter of the suit.

(b) Where the sovereign though not the owner, is in de facto possession or control of the subject matter through
its servants,

(c) Where the sovereign though not in possession, has an immediate right to possession.

STATUTORY PROVISIONS RELATING TO JURISDICTION IN INDIA

• Section 11 of the Foreign Marriages Act, 1969. The Act permits Indian diplomatic & consular officers
to perform the marriages of persons, one of whom is a citizen of India, abroad, but provides that no
such marriage can be performed if such a marriage is prohibited in the country where it is to be
performed. The Joint Committee of Parliament also gave explanation as to why this rule was enacted,
“it was done because permitting the performance of marriage prohibited in the country where it is
performed would have been contrary to international law or the comity of nations, and parliament
desired that a marriage performed under the Act have a high degree of international validity.

• Suits by a foreign state

Section 84 prohibits a foreign state from initiating a suit before a civil court in India unless it is for the
enforcement of a private right vested in its rulers, ambassadors, envoys or, in the case of a commonwealth
country, a high commissioner acting in a private capacity.

• Suits by alien enemies

Section 83 CPC prohibits the initiation of suits by alien enemies. Though there is no prohibition on the
initiation of lawsuits against such persons. The nationals of enemy country residing in India can commence
suit only with the consent of the Indian government. This limitation is not extended to foreign corporations
enjoying legal personality under the law in which they were incorporated. Hence the secretary, director or
principal officer of such company may initiate a suit in India in the name of the corporation
 • Sovereign immunity

The doctrine of sovereign immunity was developed during an era of laissez-faire when state entry intro trading
was not envisaged. According to this doctrine, sovereign states are immune from the jurisdiction of the courts
in another country. Hence this doctrine prohibits a sovereign state from being made a defendant in the courts
of another without sovereign state’s consent. In Indian law, the doctrine of sovereign immunity is imbibed
from CPC, UN Privileges act and the diplomatic relations act.

• Section 86 CPC: incorporates doctrine of sovereign immunity and prohibits initiation of suits against
a foreign state without the consent of the central government. But the consent of CG is not required if
plaintiff initiates the proceedings in its capacity as a tenant of an immovable property which it claims
to hold in the foreign state.

It has been held by the Madras High Court that the provisions of section 83 differ from the Common Law
in cases where a friendly country is invaded and occupied by the enemy. A person residing in such a place
cannot be regarded as an enemy alien as the government of that country was not at war with India; the court
held that the word 'Government' must mean the government of the country recognized as such.“(Ohem
Abheong v Mahomed Rowther 1946)

UNIT 4. & 5. GENERAL PRINCIPLES : SUCCESSIVE STAGES IN A CONFLICT OF LAWS

CASE

a) Classification/characterization/categorization/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
d) Selection of lexcausae – Determination based on lexfori
e) Application of lexcausae
f) Three meanings of Lex Causae
g) Renvoi : Partial and Total Renvoi
h) Critical analysis of Renvoi

CHARACTERISATION, RENVOI, LEXFORI ETC

General principles

Successive stages involving application of PIL

• Jurisdiction: To establish that the court is competent to try the case.

• Classifying cause of action: To determine that the cause of action comes within which category (contracts,
torts, succession or matrimonial cause etc.)
• Selection of the lex cause: After classification of cause of action, the next step is to choose appropriate
foreign law or to select the lex cause. This selection is made as per rules of PIL.
• Application of lex causal: last step is to decide the case as per the chosen law. (Renvoi comes into picture)

Incidental questions
 • Characterisation also raises the so called incidental question, which is also called a preliminary
question. Such a question arises because the main problem may not, even if resolved, answer the
question to be determined by the court. If the main problem relates to succession, the issue will be
resolved by resorting to the rules settled in English and Indian conflicts of laws, that succession to
immovable and movable property will be decided by Lex situs and Lex domicili, respectively.
• But this answer may not resolve the issue before the court. If, for example, under either the lex situs
or the lex domicili, wife is the person to inherit, a question may arise whether a particular person was,
in law, the wife of the deceased, which may raise the incidental question of the validity of the marriage
of the person.

Conflict of classification

• Classification is done because choice of law is different for different categories.

• For eg, “X” domiciled in Russia dies living immovable properties in England. The widow claims share
in the properties & English court has to adjudicate. If the classification’s result was succession then
the lex situs (where the properties are situated) will be applicable, i.e., English law, but if the
classification reset is matrimonial right then it will be lex domiciii of husband, i.e., Russian law.

Maltese Marriage Case on conflict of classification

• Plaintiff, a widow, brought an action in French court for share in her deceased husband’s landed
property. The landed properties were situated in France.
• At time of marriage, both of them were domiciled in Malta (Country). After marriage they settled
down in France and acquired French domicile. Hence at time of death husband was domiciled in
France.
• For French court, the case included foreign element as at time of marriage both were domiciled in
Malta. As per both the laws, i.e., Maltese and French law, succession to land was governed by lex situs
(where the property is situated, that law will apply), and matrimonial rights were regulated by lex
domicil at the time of marriage.
• Now how will cause of action be classified? Did factual situation of case gave rise to question of
succession to land or a question of matrimonial rights? On this question there was a conflict between
Maltese law and French law.
French law: Succession
Maltese law: Matrimonial rights
• French court accepted Maltese law’s classification and applied the Maltese law, i.e, lex dimicilii at the
time of marriage.
• But English law does not follow this principle, English law will classify cause of action by applying
English law.

Selection of the lex Causae – conflicts of connecting factors

• Choice of law depends on some connecting factor such as domiciled, situation of the property, place
of celebration of marriage etc.
• Connecting factor may not be same in all systems of PIL (Maltese marriage case)
• Even if the connecting factor is same, meaning given to connecting factor may be different. Eg, French
and English law agree on same connecting factor, i.e., domicile. Now the conceptions of domicile are
diametrically opposite.
• According to English PIL, the English judge looks exclusively to the meaning given by English law
and the interpretation given by lex fori prevails.
Procedural rules: Lex fori

• If lex causae is determined, it is not necessary that all the questions will be decided according to the
lex causae. There may be other areas where lex causae has no application. for example, in all matters
of procedure, it is the lex fori that governs; lex causae is inapplicable.
• It is important for the judge to classify and determine whether the rule in question belongs to procedural
law or substantive law. Sometimes there may be conflict between the lex fori and lex causae on this
question of classification; lex fori may classify the rule as procedural, whereas the lex causae may
classify it as substantive.

Ogden v. Ogden

• A 19 year old man domiciled in France, married a woman domicile in England without obtaining
parental consent as required by article 148 of the French code. The role in article 148 provided that the
son who has not reached the age of 25 cannot contract a marriage without the consent of his father or
mother. After sometime the husband obtained a degree of annulment of marriage from a French court,
holding the marriage void for the violation of article 148. Subsequently, the woman married an English
man in England. the English man, after sometime instituted the present action in an English court,
praying for degree of nullity of his marriage, on the ground, that at the time of marriage, the woman
was married to the French man. The question raised was the validity of marriage with the French man
in violation of the requirement of parental consent.
• The court classified the role of parental consent as one relating to formality or procedure. As the
marriage took place in England, the formal validity is governed by English law and French procedural
rules are in applicable. Hence, the court ignored the rule of parental consent and held the marriage
with the man valid with the result that the subsequent marriage with the English man was void.
• It has been pointed out that the rule of parental consent is one which affect the capacity of the husband
to enter into the marriage relationship and therefore is a matter relating to substantial validity.

Application of the lex causae: problem of Renvoi

• Application of the lex causae is the last and final stage. This appears to be a simple thing, but in fact
is far from simple. The foreign law has to be proved by expert testimony before the court and experts
and textbooks may give conflicting views regarding the actual state of foreign law.
• The application of Lex causae brings about the doctrine of renvoi. Renvoi arises because of the
different interpretations that can be given to the lex cause or the chosen law.
• Understanding Renvoi with the case:

Single Renvoi

The single renvoi happens when the rules of the conflict of laws of a country alludes the "law" of foreign
country and the conflict rules of the foreign country alludes back the issue to the primary country and it is
chosen under the law of the principal country this procedure is additionally called remission or single renvoi.

For example, where a deceased benefactor, who was a French national, was routinely inhabitant in England
but domiciled in Spain, dies leaving moveable property in Spain, the court may need to consider which
authoritative discussion will apply to manage the property under succession laws.

Forgo case: To understand Single/partial/simple renvoi

• Forgo’s:
• Nationality: Bavarian
• Domicile: France
• Died intestate in France leaving behind movable properties. French court had to decide how to distribute
the movable properties.
• According to French Private International law, the law to be applied was the lex Patriae, i.e. law of
nationality which is the Bavarian law.
• But Bavarian law in what sense? In narrow sense or wider sense?
• Narrow sense would mean that dealing with Bavarian’s code relating to intestate succession to movable
properties. But Wider sense would mean applying Bavarian’s Private International law.
• Court took the wider approach and now, the Bavarian Private International law provides that succession
to movables was governed by the lex domicili which is the French law. And hence, the question was
referred back to the French law.
• So the French law of succession was applied which deprived the right of succession to Forgo’s collateral
relatives as Forgo was illegitimate and under French law, collaterals would not succeed to his movable
properties and so the properties would pass on to the French Government but under Bavarian law,
collaterals could succeed to the properties).
• Simple (single) renvoi may arise by remission and by transmission. The above Forogo’s case was of
remission. Sometimes, the private international law of the legal system to which the reference is made
may remit the question to the law of third country, this is called renvoi by transmission.
• English law does not recognise the concept of renvoi, meaning, they will not accept the remission back as
done by French court in Forgo’s case, nor it will recognise a transmission to the law of a third country.

Double renvoi (total renvoi), English doctrine of renvoi, foreign court theory

This is also known by the names of "Total renvoi" or English doctrine of renvoi or the foreign court
theory. According to this theory, an English judge who is referred by his own law to a foreign system of law,
should apply whatever law a Court in that foreign country would have applied if that Court were seized of the
matter. The English judge is required to make an imaginary journey to the Foreign land and sit in the Court
of that country.
Double renvoi is implemented by the forum court when no other pertinent law is determined to determine the
question. In this situation, the forum court considers that it is sitting as the foreign court and will choose the
matter as the foreign court would. In this framework, there can never be more than two remissions.

Double renvoi or total renvoi is otherwise called the “foreign courts doctrine". Dissimilar to Spain, a few
nations, for example, England and France right now accept renvoi twice. However in this framework there
can never be more than two remissions.

For example, let’s consider the accompanying case whereby a departed benefactor, an Irish national, routinely
occupant in Spain however domiciled in Italy, dies leaving moveable property in France. France, being the
law of the discussion (where the benefits are arrange) will look at the law of the deceased's habitual living
arrangement Spain and applies Spanish law. Spanish law watches the law of the deceased's nationality which
is Italy. Italy, as a jurisdiction that lone works a single renvoi framework, won't accept the Double Renvoi and
it is likely that for this situation France will apply Italian law.

• According to this theory, an English judge who is referred by his own law to a foreign system of law,
should apply whatever law court in that foreign country would have applied if that court was seized of
the matter. The English judge is required to make an imaginary journey to the foreign land and sit in
the court of that country.
• Example, Chaitanya
• Nationality: England (British)
• Domicile: Belgium
• Dies intestate in Belgium leaving assets in England
• English court has to decide as to how the assets are to be distributed.
• This theory requires the English judge to imagine that he is sitting in a Belgian court and decide the
case as would be decided by the Belgian court.
• Now what would be done by the Belgian judge if the case were to come before him? He would apply
the choice of law rule of Belgian Private international law and find that this question of succession is
to be decided by lex Patriae (nationality), i.e., English law (Nationality). He examines the English law
including private international law and finds that English private international law refers the question
back to Belgian law as lex domicili. Belgian law does not recognise partial renvoi and the reference
back will not be accepted. So, Belgian judge will apply internal law of England in distributing the
assets. The same thing should be done by the English judge according to the above theory.
• It is not what the law of a country regards the matter as but the law which the courts of that country
would apply had the case arisen there. Hence, the renvoi is total or double.
• Drawbacks of double renvoi
• Does not ensure uniform results always. Uniform result will be produced only if the theory is accepted
by one country and rejected by the other. If recognised by both, there will be an interminable (endless)
reference forth and back. (International game of lawn tennis)
• Complete surrender of the English choice of law rule
• Foreign court doctrine is difficult to apply, as it has to ascertain whether partial renvoi is accepted or
repudiated by the foreign law and to ascertain national law of the propositus when foreign law refers
the question to the national law.
• Double renvoi case: Collier v. Rivaz 1841
• British subject, died domiciled in Belgium, made a will being valid as per English law but not
Belgian law.
• If case was to appear in Belgian court, the English law will be applicable. The validity of the
will was tested by English law and the will was held valid.
Advantages of Renvoi

1. By retorting to foreign choice of law rules, the courts avoid a foreign internal law that has no
connection with the porositus.
2. Some times it promotes the reasonable expectations of the parties.
3. It is generally stated that the principal reason for resorting to total renvoi is to achieve uniformity in
terms of the resolution of the case, irrespective of the country in whose court the claim is transfer. It
prevents the forum shopping.

Disadvantages of Renvoi

1. Application of domestic law of foreign country could defeat reasonable expectations of person
2. There are some practical difficulties involved in the application of renvoi.
3. Another difficulty is when foreign law refers to nationality; easy for unitary states, but problematic for
federal states.
4. Another practical problems with the doctrine that it generally requires detailed expert evidence about
the state of foreign law.

Non – apply Renvoi

The renvoi does not apply in the following cases:

1. In case of the autonomy of will, when the parts have chosen the law applicable to their contract. In the
absence of willpower manifestations, it is assumed that they agreed to choose the existing arrangement
for that contract in that specific system of law.
2. When applying the “locus regit actum”. In this case, the remission made by the conflicting norm
regards the law stipulations of the place where the act was completed regarding its outward form,
without taking into account the conflicting norms of the legal system in question
3. When the second degree renvoi does not allow the determination of the applicable law.

UNIT 6 GENERAL PRINCIPLES: PROOF OF FOREIGN LAW

(a) Proof of Foreign Law

(b) Grounds for exclusion of foreign law: Public policy, Revenue laws, Penal laws

PROOF OF FOREIGN LAW:

Evidence act-

Section 45 provides that expert evidence can be laid on what the foreign law in a given case is. Under section
45, a person who is specially skilled can give expert evidence on the subject. The flexibility of the language
gives considerable latitude to a court to decide who can be regarded as an expert.

S57 how courts take judicial notice

S84 presumption of genuineness of records, provides that “The court shall presume the genuineness of every
book purporting to be printed or published under the authority of the government of any country, and to contain
any of the laws of that country: and of every book purporting to contain reports of decisions of the court of
such country.”

S74 public documents . The following documents are public documents; (1) Document forming the acts or
records of the act (i) of the sovereign authority; (ii) of official bodies and Tribunals; and (iii) of public officers,
legislative, judicial and executive, of, or of foreign country; (2) Public records kept in any state of private
documents

S78 mode of proof of public documents where ‘public documents’ include the legislative acts of any country.

S82 special law about presumption of documents admitted in England without proof of seal or signature such
documents shall be admissible in India for the purpose for which they are admissible in England or Ireland.
There are several enactments in England under which documents are admissible in England without proof of
seal, stamp or signature.

Palaniappa Chetti vs Nagappa Chettiar heldt that although evidence of expert of a foreign country is usual
mode of proving foreign law, the court can itself interpret the provision of such law. Madras hc 1930

Suganchand Bhimkimchand v Mangibai Gulabchand 1942 held that a judgement of the highest court of the
foreign country is the best evidence as to its law.

GROUNDS FOR EXCLUSION OF FOREIGN LAW:

Circumstances may arise under which a foreign law which is normally applicable should be excluded and
instead the lex fori should be applied. This is done in the interest of public welfare or due to some other
overriding considerations for instance, there is the continental doctrine of ordre public under which any
domestic rule designed to protect domestic welfare must prevail over any inconsistent foreign rule. In English
law those foreign laws which are of penal or revenue nature or inconsistent with the fundamental policy of
English law are excluded.

1. Public policy refers to those matters regarded by the parliament and the court as involving fundamental
concerns of the state and the society at large. In Satya v Teja Singh 1975 SC it was held that any
contract opposed to the public policy cannot be enforced by the courts.
2. Penal laws contain some punishment for the breach of duties in respect to the state. A court will not
enforce the foreign penal law either directly or indirectly.

In Raulin v Fischer 1911 it was held that when a particular law contains a penal as well remedial
provision the court can only enforce remedial provision.

Huntington v Attrill 1893 NY court

The question of characterisation whether the law is penal or remedial is to be done by the court of the
forum that is Lex fori. The law with respect to personal liability of directors in a company was held to
be penal by the NY court and remedial by the Ontario Court.
 3. Revenue law of foreign court . the court can also not collect taxes of foreign countries irrespective of
the identities of the person as it is a matter of sovereign authority as held in Regazzoni v KC Sethia
1956.

In Govt of India v Taylor 1955 House of Lords UK:

• The govt of India purchased the business of one Delhi electricity supply and traction company, a
company registered in England but also carrying on business in India.
• Upon receipt of purchase money the company remitted to UK and went into voluntary liquidation
• The Indian commissioner of income tax derived and claimed capital gains tax for the liquidation in the
English courts. The argument was also advanced that the rule of exclusion on the ground of revenue
law is not applicable to commonwealth countries.
• Rejecting these arguments the House of Lords held that tax gathering is not a matter of contract but of
authority of the sovereign state and those within its jurisdiction.

In practice public policy is considered as a broad compass which in some countries also includes the penal
law, revenue law, etc.

As observed by Judge Burrough in 1824, judgement on Richardson v Mellish “I protest arguing

dynamically upon public policy as it is an unruly horse. Once you ride it you can imagine where it will
deliver you.” The Hague conference negotiated the context of multiple judgement negotiations in which
public policy was a key element.

UNIT 7. & 8. DOMICILE

(a) General principles

(b) Elements : Intention and residence
(c) Domicile of Origin
(d) Domicile of Choice
(e) Domicile of dependence
(f) Domicile of Corporation

Introduction

• It is universally recognised principle that questions affecting the personal status of a human being should
be governed constantly by one and the same law, this law is known as the personal law.
• So far as English, private international law is concerned, the following matters are governed by the
personal law
Essential validity of marriage
Divorce, nullity of marriage, etc
Effects of marriage on the proprietary rights of the husband and wife
Legitimacy, legitimation and adoption
Wills and intestate succession to movable properties.
• In India, England and other Commonwealth countries, the personal law is the law of domicile; but in the
most of the continental countries, it is the law of nationality.
Concept of domicile

It is different from nationality and residence. A person cannot get the domicile by residence alone, but the
long duration of residence may get him. A person can be regarded as domicile in a country although he never
resided in that country.

Nationality Domicile
Political status, owing to allegiance to a particular Civil status, by which personal rights and obligations
country are determined.
Quality of being the subject of a certain state and Relationship between individual and his permanent
consequently its citizen residence by origin or acquisition.
By birth or Naturalisation Choice by residence in a particular country with a
particular intention

GENERAL PRINCIPLES

1. No person can be without a domicile :

• Every person must, at all times, possess a domicile. This is based on the practical necessity of
connecting every individual with a system of law so that his legal relations may be regulated. A person
has freedom to change his domicile but he has no freedom to be without a domicile. Even when a person
is actually homeless the law attributes a domicile to him. Thus, every person has a legal domicile.
• In order to deal with the difficulty of ascertainment of a domicile of persons who are either incapable
of deciding matters for themselves, such as young children, or who are of roving disposition. English
courts have developed principles for the attribution of a domicile to every person. Thus, the law assigns
what is called a domicile of origin of every person at his birth.
• By operation of law; a domicile of origin is assigned to every person at the time of his birth, i.e. to a
legitimate child, the domicile of the father is assigned, to an illegitimate child the domicile of the mother
is assigned, and to a foundling the domicile of place where he is found or discovered, provided nothing
is contrary to it is present. This domicile of origin continues until a new domicile i.e. domicile of choice
is acquired by the person.

2. No person can have simultaneously two domiciles :

• A person cannot have at the same time more than one operative domicile. It is because law in fixing
domicile of a person connects him with a system of law and if a person is allowed to have more than
one domicile that purpose will be frustrated. Since the object of the law is insisting that no person shall
be without a domicile is to establish a definite legal system by which certain of his rights and obligations
may be governed, and since the facts and events of his life frequently impringe upon several countries,
it is necessary on practical grounds to hold that he cannot possess more than one domicile at the same
time.
• The Indian Constitution recognises only one domicile. It is exceptionally possible for a person to have
two domicile, such as when a person may retain his domicile of origin and may also acquire a domicile
of choice. Some countries recognise dual domicile.
• In some countries, the federal systems of government exist, there are two sets of government one federal
and the other state or region government. For the purpose of federal laws a person may have federal
domicile and for the purpose of regional laws he may have a regional domicile.
 • A very good illustration of this is provided in the United States. A resident in the USA is not normally
domiciled in the USA as such but in one of its states. Nevertheless, the doctrine of unity of domicile
one man, one domicile, maybe modified by federal legislation.

3. Domicile denotes connection with the territorial system of law :

• Domicile has reference to the system of law by which a person is governed, and when we speak of the
domicile of a country, we assume that the same system of law prevails all over that country.
• The English conception of domicile is based on a person’s relation with the territorial legal unit, and
no consideration of personal law resulting from adherence to a religious set, example, Hinduism, affects
the English ideas of domicile.
• The rule about domicile is evolved on account of the universal recognition that questions affecting the
personal status of a human being should be governed constantly by one and the same law, irrespective
of where he may happened to be or where the facts giving rise to the question may have occurred.
• In some countries it may happen that laws relating to succession and marriage might not be the same
all over the country, and the different areas in the state might have different laws in respect of these
matters. In that case, each area having a distinct set of laws would itself be regarded as a country for
the purpose of domicile.
• In India peculiar condition is there. Different legal rules apply to different classes of population
according to their religion, race or caste but nonetheless it is the territorial law of India that govern each
person domiciled there, not with standing that a Hindu law may apply to one case, Muslim to another.

4. Presumption is in favour of continuance of an existing domicile :

• Therefore the burden of proving a change lies in all cases on those who allege that a change of domicile
has taken place. This presumption may have a decisive effect, for if the evidence is so conflicting or
indeterminate that it is impossible to elicit with certainty what the residents intention is, the court will
decide in favour of the existing domicile.

5. Under English Common Law System, Domicile of a person is to be determined according to the
English concept of domicile and not in accordance with the foreign concept of domicile, subject
to certain statutory exceptions.
• English courts decide according to rules of English law whether certain facts do or do not constitute
domicile.

Elements: Intention and residence Intention & Residence

Domicile refers to a permanent place where a person dwells for a relatively long time. It establishes a legal
relation between an individual and a location. It may or may not be his residence as well. Residence, on the
other hand is a more temporary concept- referring to the place, i.e. a building or a structure where a person
lives. It is dependent upon the place an individual resides at. An individual may be residing at more than one
place, but occupies only one at a certain point of time.
Domicile is dependent upon the context in question. For instance, when it comes to deciding jurisdiction, a
person’s domicile is assumed to be his legal residence which he/she intends to make his/her permanent home.
Domicile depends upon two factors- residence and intention to dwell, i.e. “animus manendi”. Domicile, as a
broader concept, pervades residence as well, but unlike residence, its scope and significance are much more
widespread. Unlike residence,
which can be multiple, domicile will always be one at any point in time. Domicile decides personal rights,
duties and obligations
Domicile, involves “animus manendi”, i.e. the intention to remain, whereas residence is objective in nature.
Domicile and residence may not be the same place for an individual. The usage of the aforementioned terms
depends upon the statute in question. However, residence is a more flexible idea as compared to domicile as
“permanency of dwelling” is not considered absolute.

4 KINDS

1) Domicile of Origin

One of the basic principles that governs the law of domicile is that no individual can stay or exist without a
domicile. To give this principle a practical application, the law of domicile confers a domicile at birth of every
individual. This is known as a domicile or origin. It is not necessary that the domicile of origin is always the
person's country of birth. It is generally the person's father's domicile which conferred upon in case of a
legitimate child and the mother's domicile in case of an illegitimate child. A domicile of origin is of
fundamental significance and is retained until such time as there is clear evidence that another domicile has
been acquired.

Ramsay vs Liverpool royal infirmary

George Bowie died in England left a will which, according to English law was invalid, but according to
Scottish law was valid. The person was born in Scotland and his domicile of origin was Scotland. The question
was whether he was domiciled in Scotland or England at the time of death.

He was working as a commercial traveller in Scotland till the age of 37. Then he moved to England and lived
with his sister and brother in England. He did not work in England but lived on the bounty of his brother for
the last 36 years of his life, he lived in England, he never returned to Scotland, even not to attend his mother's
funeral. There was no evidence to show that George Bowie entertained any notion of returning to Scotland.

The house of lords held unanimously that George Bowie died Domiciled on Scotland. That long residence
failed to disclose any intention on his part to choose England as his permanent home. It was inferred that had
his English source of livelihood, exhausted, he would have returned to Scotland.

2) Domicile of Choice

There are two requisites for the acquisition of a domicile 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 Udny v.Udny, described the element as follows: "Domicile 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 domicile 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.
 3) Domicile of dependence

Formerly in English law there was three classes of dependent persons, for purposes of domicile-infants,
lunatics and married women. The last category, married women has now been freed from the dependent status
by the Domicile and Matrimonial Proceedings Act, 1973. So we are left with the first and the second.

It is necessary to avoid confusing domicile of origin with the domicile of dependence. As already stated, a
child acquires at birth a domicile of origin by operation of law. This will be the domicile of his father if born
during the father's lifetime and the child is legitimate. If illegitimate or born after the father's death, the child
gets the domicile of his mother. A foundling gets the domicile of origin of the country where it is found.
During the minority of the child, it is incapable of acquiring a domicile of choice but will be having the
domicile of the person on whom it is legally dependent.

This is the domicile of dependence. In a vast majority of cases the domicile of dependence and the
domicile of origin may be the same, but it is possible that these may be different. If the father of a minor
changes his domicile, the new domicile is automatically communicated to the minor. This new domicile
is the domicile of dependence: his domicile of origin always remains constant, it is the one given to him at the
time of his birth. In other words, when the domicile of a minor is changed as a result of change in his parent's
domicile or as a result of his legitimation or adoption, the new domicile which the minor gets in this way is
the domicile of dependency and not the domicile of origin. Hence it is not this domicile but the one which the
minor acquired at the time of birth which is capable of reviving in later life. The domicile of origin is
unaffected by the changes occurring in the parent's domicile during the minority of the child.

4) Domicile of Corporation

Questions concerning the status of an artificial legal person like a company or a corporation are governed by
the same law that governs the status of an individual, i.e., the law of domicile.
Where is a company domiciled? The company is domiciled in the country where it is incorporated. Every
individual on birth gets a domicile by operation of law, namely the domicile of origin.

So also, a company, the moment it 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 domicile by acquiring a domicile of
choice. This is not possible in the case of corporation. A corporation throughout its existence has only one
domicile - the place of incorporation. In short, A company is resident where its control and management abide:
it is domiciled where it is incorporated.
Nationality of a corporation: In conflicts of law cases the nationality of a corporation does not usually figure
as a relevant issue. According to English law a corporation is regarded as the national of the country where it
is incorporated.

Can a company have a dual residence?

Yes, if the central control & management of a company is so evenly divided between two or more countries
that it is difficult to identify any one country as the seat of control.

UNIT 9 & 10: Contracts:

a) Introduction
b) English concept of Proper Law of Contract: Theory of Intention and Theory of localization of contract
c) Cases where Proper Law is not the only law applicable
d) Position in India
e) Judgments of Indian courts

INTRODUCTION

Contracts are infinitely various and may present a multiplicity of connecting factors. For instance, a contract
may be made in one country, the place of performance may be in another country, the subject matter may be
situated in a third country and the parties may be domiciled in a fourth. Some countries go by the law of the
place of contracting while some prefer the law of the place of performance.

ENGLISH CONCEPT OF PROPER LAW OF CONTRACT: THEORY OF INTENTION AND THEORY

OF LOCALIZATION OF CONTRACT

English Private International Law evolved the principle of proper law of contracts which can be ascertained
by two theories namely
• Theory of Intention (Substantive Theory)
• Theory of Localisation of Contract (Objective Theory)

1) Theory of Intention: the proper law is the law which the parties intend to apply. Where the parties
have chosen the law under which their rights and obligations are to be determined, this chosen law
clearly is proper law of contract. Where the parties have not expressly chosen the law, their intentions
should be gathered by looking into the various relevant circumstances. This theory was propounded
by Dicey wherein he stated that the proper law of contract means the law or laws by which the parties
intended or fairly be presumed to have intended the contract to be governed.

2) Theory of Localisation: the proper law of contract is the law of the country in which the contract may
be regarded as localised. Localisation will be decided by grouping elements of the contract as reflected
in the formation and in its terms. Which country is the contract closely connected with? That country
will be the place of localisation. The country in which the elements of the contract are most densely
grouped should be regarded as the natural seat of the contract and the law of that country will be the
proper law of the contract.

WHEN PROPER LAW WILL NOT BE APPLIED IN CONTRACTS.

Dicey, Morris and Kelly articulate that parties choice of law is made in bad faith if it contradicts if it overwrites
mandatory norms of the legal system which has the closest connection with the contract. The decision of the
House of Lords in The Hollandia it was held that parties choice of Dutch law was not bonafide and legal
because they were overwriting mandatory Hague Bisby rules applicable in UK under English carriage of
goods by sea act 1971.

Renusagar Power Compqny Ltd vs General Electric Company 1994 SC. It was observed that in the matters of
international commercial arbitration, validity of party’s choice of law must be construed in view of public
policy of India
• Fundamental principles of justice
• Prevalent concept of good morals
 • Deep rooted traditions of the commonwealth.
• Added by 2019 Sangyong Engineering and construction company Ltd vs NHAI : most basic notions
of justice and morality.

Central Inland Water Transport Corporation Ltd vs Brojo Nath Ganguly. 1986 SC

Stronger party can’t take advantage of weaker party against public policy. The court refused to give effect to
a contract which permitted the employer to dismiss the employee without cause by giving 3 month notice or
payment in lieu. It was help that this contract was unconscionable and opposed to public policy and therefore
cannot be enforced.

POSITION IN INDIA AND JUDGMENTS OF INDIAN COURTS

The Rules to identify the applicable law for disputes arising out of contracts are governed by judicial dicta.

The doctrine of "Proper Law of Contracts" was developed in the case of Vita Food Products Incorporated Vs
Unus Shipping Company 1939 English case.

The defendant was a company incorporated in Nova Scotia. The plaintiff was a New York firm. They entered
into an agreement at Newfoundland by which the defendant agreed to carry a cargo of herrings in a Nov
Scotian ship and deliver them to the plaintiff at New York. The bills of lading were signed at Newfoundland
by agents. According to Newfoundland statute, the Hague rules should govern any contract of carriage from
that country and every bill of lading signed in the country should contain an express clause making the Hague
rule applicable. In this case they omitted to carry this clause and expressly proved that the contract should be
governed by the English law. The bill of lading and Hague rules both exempted the defendant company from
liability for negligence of the master of ship. During voyage the ship ran aground off the Nova Scotia coast
due to negligence. The cargo was damaged. The plaintiff sued defendants for damages. Defendants pleaded
exemption from liability and governed by Newfoundland laws. While plaintiff admitted the latter they said
bill was null and void as they did not incorporate Hague rules. Privy council said English law was the proper
law and failure to comply with Newfoundland statute did not make bills illegal and defendants were entitled
to the exemption because it was provided for in the bills. Even though the contract was most substantially
connected to Newfoundland laws, the English law was applied since it was the law chosen by the parties by
an express provision. The intention expressed was bonafide and legal and there is no reason to avoid the choice
on ground of public policy.

The Privy Council in this case formed the genesis of development of this doctrine in India with the decision
of the Calcutta High Court in Indian General Investment Trust Vs Raja of Thalikote (First Indian Judy on
Proper Law of Contracts) The proper law of contracts means the laws which a court is to apply in determining
the obligations under a contract. There is no rigid criteria like Lex Loci Contractus. The matter depends on
the of the intention of the parties to be seen from the facts of each case, the consideration terms of contract,
the situation of the parties and also the surrounding facts from which the intention of the parties can be
gathered.

The Supreme Court in National Thermal Power Corporation vs Singer Corporation 1992 SC it was observed
that the legal system by which the parties intended the contract to be governed or where there is no express or
implied intention, the system of law with which the transaction has the “closest and most real connection.”
Cheshire on the intention of the parties to contract and their autonomy found favour in defining the limits of
the parties express choice of law to govern their contract. According to him parties can “localise the contract”
and grouping the individual elements to find its centre of gravity. It is this centre of gravity with which the
contract is most substantially associated that would govern the contract. For example according to Cheshire if
the parties want to select English law to govern the contract they will have to localise the contract by grouping
the elements like Lex loci contractus, jurisdiction of court, currency of transaction, language of contract, seat
of arbitration, etc in a manner that the contract becomes more substantially associated with the law of England.
(Or any other legal system that the parties intend to choose)

Delhi Cloth and General Mills Company Ltd vs Harnam Singh in which the court applied Cheshires objective
interpretation of party autonomy as above. The parties had chosen law of Lyallpur however all the transactions
were to be done in India between Indian merchant and Pakistani merchant for sale of clothes. The court
rejected the contention that Pakistan courts had jurisdiction because the contract was localised in India.

British Indian steam Navigation Company Ltd vs Shanmughabilas Cashew Industries 1990 SC there was a
bill of lading between India and England companies which the parties said was the proper law but the court
said it wasn’t as the localisation was in India.

The above cases do not represent the current position on the subject of proper law.

In the case of National Thermal Power Corporation vs Singer Corporation 1992 SC the court accepted the
party’s selection in favour of a neutral legal system and emphasised that such selection would be disregarded
only if:
o It is not bona fide
o It is illegal
o It is in contravention to public policy

This view was expanded in Mody Entertainment Network Ltd vs WSG Cricket Private Ltd wherein the court
confirmed the parties right to select any law including a neutral legal system as the governing law. In this case
the cricket match was played in Kenya and broadcasted in India through a license given to the appellant by
the BCCI. However, the parties chose English law as the governing law, which was upheld by the court even
though it was unconnected Ito the surrounding facts of the case. (2003 SC) Therefore in this case subjective
interpretation of Dicey is followed as party’s intention and autonomy is respected.

UNIT 11 & 12 : Torts

(a) International Conventions

(b) Different theories: Lex fori, Lex Loci Delicti, Commissi
(c) The Proper Law of Tort
(d) Maritime and Aerial Torts
(e) Position in India

THEORIES

Tort may be defined as an injury or wrong committed with or without force to the person or property of
another, and such inury may arise by either the nonfeasance, malfeasance or misfeasance of the wrongdoer.
When an action is brought upon a tort committed in a foreign country, the quester arises which law should
govern the liabilities which come under 3 theories:
1. Lex Fori theory

Was proposed by Savigny who was of the view that tortious liability was closely connected to criminal liability
or fundamental principles of public policy applicable in the country of the forum and therefore it should be
governed by Lex fori. However the English courts have never followed this view and Cockburn CJ observed
that it would lead to the most “inconvenient and startling consequences” since a defendant would be held
responsible if his act is actionable according to the lex fori even though it is possible it is innocent according
to the law of the country where the act was committed. If this were the sole deciding factor then the plaintiff
would be free to chose forum most favourable.

2. Lex Loci Delecti Commissi theory:

The civil liability arising out of torts derives its worth from the law of the place where it is committed and its
character is determined by that law. It would be natural that the law of the country where the injurious act was
committed should govern liabilities. The law of the country where the alleged tort was committed is the law
to be owed obedience to at the decisive moment and it is by this law that his liability should be assessed.

In the case of Bata v Bata where defamatory letters were written by the defendant in Zurich and posted in
London where it was published, the court of appeal held that the cause of action arose in London as publication
is the material element that completes the Tort of libel and accordingly that will determine the Lex Loci Delecti
Commissi. According to Cheshire, Lex Loci Delecti Commissi is applied because it is the law of the country
which is most directly affected by the defendant’s tortious activity and it is also applied to give effect to the
reasonable expectations of the parties. This theory is criticised by Kahn and further analysed by Morris.
According to Kahn if the tort is committed at a ‘chance place’ then why should that law be applied.

Philips v Eyer 1870:

Edward eyer was an English man serving as the governor in Jamaica when an insurrection took place in the
year 1865. He proclaimed martial law and suppressed it by force. The plaintiff Phillips was arrested during
the insurrection, handcuffed, put on board a ship and taken away to England. The legislative council of
Jamaica passed an act of indemnity saving governor Eyer from any liability for what he did to suppress the
revolt. Upon governor Eyer’s return to England, Phillips instituted an action for tort of assault false
imprisonment etc. governor Eyer pleaded the act of indemnity in his defence. This plea was sustained by the
court and it was held that an act committed on a foreign land, if valid by the law of that land, cannot be
questioned elsewhere in civil liability cases. Wills J observed that civil liability arising out of a wrong derives
its worth from the law of the place and its character is determined by that law. The judgement was given in
favour of the defendant on the ground that the acts were justified according to the lex loci delicti. Whatever is
a justification in the place where the thing is done ought to be a justification where the case is tried.

THE PROPER LAW OF TORT

Proper Law theory or Social Environment Theory:

The main proponent is Morris and it is also followed by Lord Denning in several English judgements. It is
that law with which the act complained of has most significant connection. It enables the court to adjudge
liability arising out of foreign tort according to the social environment in which the act was committed. The
effect would be that in most cases the Lex Loci Delicti would be proper but the court has the freedom to move
away in appropriate cases and avoid the unjust results in the mechanical application. This theory provides
flexibility and takes into consideration the social factors involved.

The Phillips v Eyre case is about a legal claim by two British subjects who were residents in Jamaica,
Alexander Phillips and Dr Robert Bruce sued Eyre and two other people involved in their matter in England.
The claim was made for civil wrongs, including assault, battery, and false imprisonment. Phillips asserted that
he was brutally tortured on 4 November 1865 before being released. In addition, It was alleged that these
wrongs caused the plaintiff severe pain, disability and sickness. Due to the Indemnity Act, Phillips and Bruce
could not sue Eyre in the Jamaican courts. Eyre’s defence was that he was not liable for his actions in Jamaica
because of the 1865 Jamaican Act of Indemnity, which grants him and two others immunity from prosecution.
Despite this, Cockburn CJ concluded that the Jamaican legislature did have the power to pass an Act of
Indemnity and that Eyre was not liable for his actions due to this immunity. Philips appealed against the
decision in this case. The final verdict was delivered by Wiles J on the basis that since the conduct was not
actionable in Jamaica and that the Indemnity Act in Jamaica legally justified the conduct, then Eyre is
exempted from liability for his actions.

According to Morris if we adopt the proper law of tort, we can choose the law which has the closest and the
most real connection with the chain of acts and circumstances in the particular tort. This theory is judicially
accepted in US cases of Babcock vs Jackson (1963) and Kilberg v North East (1960) In the UK, this theory
has been formulated in Phillips v Eyre 1870. And reaffirmed in Boys v Chaplin 1960.

In the case of Boys v Chaplin the plaintiff boys and the defendant Chaplin were members of Her Majesty’s
Armed Forces and were stationed on duty in Malta. The plaintiff suffered injuries in a road accident due to
the defendant’s negligence in Malta. Both the parties were ordinarily residing in England and therefore the
action for tort was filed in English court, negligence being a tort both under English law and Maltese law.
under the Maltese law Boys was entitled to 53 pounds. But English law has multiple heads of assessment of
damages and therefore boys was entitled to 2250 pounds as per English law. The court held that was a matter
of substantive law and not procedural law and therefore English law will apply. Out of the 5 judges of the
House of Lords the desenting judge was Diplock J boys was entitled to 53 pounds as damages. House of Lords
overruled Machado v Fontes 1897 wherein a defamatory publication was made in Brazil by Fontes who was
sued in England by Machado under the then Brazilian law. Such publication was not an actionable tort
however the English court proceeded against the defendant as it was a tort in England and compared this tort
with likelihood of criminal prosecut in Brazil.

In boys v Chaplin the proposition laid down a century ago in Phillips v Eyer that is the Double Actionability
test was followed.

1. An action on a foreign tort will be maintainable if it is actionable both under English law as well as
the foreign country where the tort was committed.
2. Lex loci delecti commissi will apply as a general rule however if the tort is committed in more than
one country, the courts can apply the closest connection test based on proper law or social environment theory
as highlighted in several decisions of Lord Denning.

There are three man tests to ascertain the place of the tort:

1. The country where the defendant did the harmful act

2. The country where the harm is caused
3. The country where the law is most favourable to the person wronged.
The basis upon which the location of a tort is determined may vary from tort to tort such as in the case of
defamation the place of commission is the place of publication but in case of negligent manufacture and
distribution and consumption it may be the place of manufacture.

Coupland v Arabian Gulf Oil Co: QBD 1983

The plaintiff employee, injured whilst working for the defendant in Libya, sued in contract and tort. The judge
held that Libyan law was the proper law of the contract, but that this was of no relevance to the claim in tort
which could proceed here if the plaintiff could satisfy the double actionability rule. The defendant argued that
the English double actionability rule should not be applied because there was a Libyan contract.

Hodgson J said: ‘It is clear that the ordinary rule in tort is that the law of the place where the action is being
brought – the lex fori – is the law to be applied. To find an exception to that rule one has to find as issue,
which is decided differently by the two jurisprudences, which is capable of being segregated and which can
then be decided by an application of what, in effect by the back door, is the proper law of that issue. But before
one can do that one has to have some substantial difference between the two systems of law. In this case (as I
have demonstrated) the only possible candidate for segregation would be the rule in Libyan law that social
security benefits are not deductible from an award of general damages. But that contention is not advanced by
Mr Hartley Booth for the plaintiff (and properly so it seems to me), for that rule is, in my judgment, a rule for
the quantification of damage and not a rule dealing with a head of damage. And if it is a rule dealing with the
quantification of damage, then it is for the law of this country to prevail.’

MARITIME TORT

A distunction should be made between the torts committed in the maritime belt and those in the open sea. In
the case of torts committed within the maritime belt the locus delicti is deemed to be littoral State and the rule
in Phillips v Eyre as modified in Boys v Chaplin applied. As regards to torts committed in the open sea outside
the maritime belt no country can claim to apply its own law and the question is what law should govern. In
case of maritime torts which is a tort committed in high seas, on a ship/vessel there may be two possibilities:

1. The act is internal which is it is confined to a single ship. For example, assault by member of a crew on
a passenger on that ship. In this case the law of the flag ship will apply which is the state whose flag is
flown in the ship. Governed by Indian law and if an action is brought in English Court, then the rule laid
down in Phillips vs Eyer as modified in Boys v Chaplin will apply.

2. The act is external to a ship for example negligent navigation resulting in collusion with another ship or
damage to another property. In such cases the matter will be governed by the convention on high seas
concluded in Geneva in 1958. If the country is not a party to the Convention, then the general maritime
law will apply. The Bombay high court admiralty division has original jurisdiction over general maritime
law matters.

AERIAL TORTS

Aerial tort is a tort committed on the board of an aircraft. Graveson defines an aircraft to include any
mechanical device capable of flight. In case of an aerial tort the following possibilities may arise:
 1. If the aircraft is flying over high seas or territorium nullius and the flag of the aircraft has to be
considered.
2. If the aircraft is flying over territory of another country, then Lex loci delecti commissi will apply
and the tort is actionable in that country.
3. According to Kahn the aircraft is connected to the country where it is registered and its connection
with the countries over which it flies is fleeting. (Everchanging) and therefore it is difficult to prove
the precise location and moment when the tort is committed.

The matter of aerial tort is now governed by the Warsaw Convention on air transport 1929-59, the Chicago
convention on international civil aviation 1944 which corresponds to carriage by air act 1961 and civil aviation
act 1949 in English law. Lord Dennings proper law theory in torts is suited to maritime and aerial torts. In
India section 19 of CPC is the applicable law.

UNIT 13 & 14 : Marriage and Matrimonial Causes

a) Nature of English marriage

b) Christian marriage
c) Attitude towards polygamous unions, same-sex relationships and transsexual marriages
d) Formal validity of marriage
e) Essential validity of marriage
f) Divorce and other matrimonial relief

ENGLISH MARRIAGE AND CHRISTIAN MARRIAGE

Under the English law the requirement of marriage is as follows:

1. It is a voluntary union between man and women

2. It should be monogamous
3. It must not be for a limited period.

The concept of Christian marriage was defined in the landmark case of Hyde v Hyde 1866 in which Lord
Penzance observed “I conceive that marriage, as understood in Christendom, may for this purpose be defined
as the voluntary union for life of one man and one woman to the exclusion of all other”.

The facts of the case – Hyde the petitioner was an English man who embraced Mormon faith (Christ centred
faith in some parts of USA). He went to Utah (USA) and married a Mormon Lady according to Mormon faith
in which polygamy was allowed. After cohabiting with her for 3 years and having children he renounced the
Mormon faith, came back to England and was excommunicated from Mormon faith due to his strong criticism
of the same. His wife married another man in Utah and therefore he moved the English court for divorce on
the ground of adultery.

The court held – that Mormon marriage was potentially polygamous and UK is adapted to Christian values
which only apply monogamy. It was held that the parties to a polygamous marriage are not entitled to any
relief or adjudication under the English law.

Under the English law, marriage is considered as a special kind of contract as it is a voluntary union based on
the consent of both the parties. It cannot be rescinded by mutual agreement of parties and can be dissolved
only by a formal or public act in Cheni v Cheni 1962 the marriage took place in Egypt between 2 Jews as
potentially polygamous. If there was no child born within 10 years of marriage, the husband can remarry. (In
this case the child was born) The wife approached the English court for matrimonial relief. The court
recognised this change and held that at the time of the marriage it was potentially polygamous but it became
monogamous after the birth of child and therefore the wife was entitled to matrimonial relief as per the English
law.

The English law follows the rule of Lex Loci Celebrationis.

The nature of marriage may change due to several reasons and they may fall as exception to Hyde v Hyde
rule. For example:
1. Change of religion

2. Change of domicile

Example Ali v Ali

Both the parties were domiciled in India and entered into a potentially polygamous marriage in India. They
later moved to UK and husband acquired English domicile. Before the English court the husband filed a
petition for divorce on the ground of desertion by the wife. It was held that the husband’s acquisition of English
domicile and residence in England prevented him from having a second wife and therefore the marriage
became monogamous in nature and he was entitled to relief by the English court. This judgement lays down
the proposition that if the husband changes his domicile from a country which permits polygamous to one
which does not, this change of domicile also changes to character of marriage and renders it monogamous. In
Baindail v Baindail, 1946 a similar view was taken.

3. Subsequent ceremony in monogamous form

4. Subsequent events which will change the nature of marriage according to Lex loci celebrationis.
Example Cheni case.

As per Lex loci celebrationis if a woman domiciled in England marries a Muslim man in India, the marriage
would be polygamous.

POLYGAMOUS MARRIAGE

Such marriages are excluded from the concept of English marriages. The exclusion embraces not only actual
polygamous unions wherein the husband actually having more than one wife but also potentially polygamous
marriages. If the husband is entitled by the relevant law to have more than one wife at a time his marriage is
regarded as polygamous although in fact he only has one wife. This is because the marriage is potentially
polygamous in the sense that the husband can at any time exercise his right to have a plurality of wives. Thus
a Muslim marriage in India is polygamous although the husband has only one wife.

An important consequence of excluding polygamous marriage from the concept of English marriage is that
an English court will not grant any matrimonial relief to the parties of a polygamous marriage as laid down in
Hyde v Hyde.
In Baindail v Baindail a domiciled Indian of Hindu faith married an Indian woman in India according to Hindu
rites. As Hindu law recognised polygamy at that time, the marriage was polygamous in nature. While his
Indian wife was still alive, he married an English woman. In England by a civil form of marriage describing
himself as a bachelor to the registrar of marriages. On discovering the previous marriage in India, the English
woman petitioned before an English court for a decree of nullity on the ground that her husband was already
married when he married her. the question arose what was the status of this man at the time he married the
English woman? The court held that the husband was a married man at the time of the English marriage. The
court said that English law does not refuse recognition of polygamous marriage for all purposes. Thus the case
established these marriages would be recognised by English court for some purposes. The status of
polygamous husband would be recognised so that he cannot contract a monogamous marriage in England
subsequently.

ATTITUDE TOWARDS LGBTQ & TRANSEXUAL PERSONS RIGHT OF MARRIAGE:

In UK the Matrimonial Causes Act 1973 did not expressly cover same sex marriage in Talbot v Talbot 1967,
the court extended the prohibition where one spouse was post operative transexual with the observation that
‘marriage is a relationship which depends on sex and not gender’.

Wilkinson v Kitginger

Both the parties were professors in Canada domiciled in England and legally married in Canada in 2003.
However on their return to UK their marriage was not recognised and therefore the couple filed a petition in
the HC for recognition and that a civil partnership is a lesser substitute. The HC in 2006 held that this union
cannot be granted the status of marriage. Justice Potter observed that marriage is an age old institution and has
a long standing definition and acceptance as a relationship between a man and a woman. He also observed
that the couple are recognised as a civil union/partnership and will get all the right under Civil Partnership Act
2004.

Same sex marriage as of today is legal throughout UK. It was recognised in England and Wales and Scotland
in 2014 and Northern Ireland in 2020. UK is 27th country in the world to grant such recognition. The SC of
India in Supriyo v UOI 2023 the five udge bench held that right to marry is a statutory right and not a
fundamental right therefore same sex marriage can only be recognised by the law of the parliament.

THE FORMAL VALIDITY:

Governed by Lex Loci Celebraitonis, the law of the place where the marriage was celebrated. The place
governs the act. The rule is of absolute nature. Every marriage must be tried according to the law of the country
in which it took place and if it is good by the law, it is good all the world over. It includes such questions as
to whether a civil ceremony or a religious ceremony or whether a ceremony at all is required what should be
the number of witnesses, the permitted time when the ceremony can be conducted and similar matters.

ESSENTIAL VALIDITY

• The capacity of the parties to enter into a valid marriage is a matter relating to essential validity. Age,
prohibited degrees of consanguinity and affinity, previous marriage, physical incapacity are all
impediments of this. It is governed by each party’s ante nuptial domicil.
 • In the sphere of English conflict of laws, since the decision of House of Lords in 1861 in Brook v.
Brook, (1861) 9 HL Cas 193. it is well established that a distinction has to be made between formalities
and essentials of marriage -and that the latter which includes capacity is governed by the law of
domicile of the parties. In Brook v. Brook, the marriage was solemnised in Denmark between a man
and his deceased wife's sister, both of English domicile. According
• to the law of Denmark, the marriage was valid. According to the law of England, as it stood then, the
parties were within prohibited degrees of relationship and hence the marriage was void.

• The question in issue was whether the lex loci celebrationis would prevail over the domiciliary
prohibition as to capacity. The point was debated before very eminent Law Lords and in an exhaustive
judgment it was held that the marriage was void, as under the law of England such a marriage was
void. Lord Campbell, L.C. at p. 207 in that case stated:

• "There can be no doubt of the general rule that a foreign marriage, valid according to the law of a
country where it is celebrated, is good everywhere. But, while the forms of entering into the contract
of marriage are to be regulated by the lex loci contractus, the law of the country in which it is
celebrated, the essentials of the contract depend upon the lex domicilii, the law of the country in which
the parties are domiciled at the time of marriage, and in which the matrimonial residence is
contemplated.

• Although the forms of celebrating the foreign marriage may be different from those required by the
law of the country of domicile, the marriage may be good everywhere. But if the contract of marriage
is such, in essentials, as to be contrary to the law of the country of domicile, and it is declared void by
that law, it is to be regarded as void in the country of domicile, though not contrary to the law of the
country in which it was celebrated", and at p. 212 the Lord Chancellor further observed:

• "It is quite obvious that no civilised State can allow its domiciled subjects or citizens, by making a
temporary visit to a foreign country to enter into a contract, to be performed in the place of domicile,
if the contract is forbidden by the law of the place of domicile as contrary to religion, or morality or to
any of its fundamental institutions." The other Lords, Lord Cranworth and Lord St. Leonards also
enunciated the same principles. Ever since that decision the principle has been applied in England to
varying situations.

• English law governing marriage and matrimonial reliefs is the Matrimonial Causes Act 197 in the case
of Starkowski v Attorney General 1953. Two roman Catholics domiciled in Poland were married in
may 1947 in an Austrian church without a civil ceremony. Austrain law did not recognise such
marriage but after a few weeks an Austrian legislation validated such marriages retrospectively
provided they were registered. Marriage was registered after the parties acquired English domicile in
1949. In 1950 the wife married another man in England and the question before the court was whether
the second marriage of wife was valid? The court held that Austrian marriage was valid through
retrospective law and therefore the second marriage bigamous and valid.

DIVORCE AND OTHER MATRIMONIAL RELIEF:

1) S47 of Matrimonial Causes Act 1973 provided for several matrimonial relief in case of polygamy such as:
a. divorce
b. decree of nullity
 c. judicial separation
d. financial relief including to children

2) Judicial separation is recognised by the courts since 1858. The principle is that the parties can live
separated but their marriage is not dissolved and it is decided as per the English law on principle of
separation from bed and board.

3) Nullity of marriage is governed by S11 of matrimonial causes act and it is concerned with the validity of
the marriage unlike a divorce which dissolved a marriage validity created. For eg in English law if the
party is below minimum age of marriage is already married then the marriage will be void. In Scotland if
there is no consent then the marriage is void ab initio.

In India the matrimonial laws differ from community to community. The rules regarding dissolution of
marriage and other matrimonial causes are contained in their separate personal laws. Residence is the main
basis of jurisdiction for all matrimonial causes under the various personal laws in India. Like English law,
when Indian court decides that it has jurisdiction to entertain a petition for divorce, it will apply the personal
of the parties as lex fori. The residence means the place where the parties have set up a matrimonial home or
the place where parties already have a permanent home or abode where they live or lived together. In case
where the parties have not set up any matrimonial home nor do they have any permanent abode or home, it
will be the place where they stay or stayed together, however short duration of stay might be or might have
been.

Regarding the recognition of foreign decrees of divorce we have to look into the general provisions relating
to the recognition of the foreign judgements and decrees contained in the Section 13 of the CPC.

UNIT 15 & 16 : Legitimacy, Legitimation and Adoption

a) Legitimacy
b) Law governing legitimacy
c) Adoption in common law and Indian law
d) Recognition of foreign adoption

LEGITIMACY

The term 'legitimacy' is derived from the latin word, 'legitimare.

Legitimacy means the status acquired by a person who is born in lawful wedldck, (i.e. born of parents whose
marriage was valid at the time of his birth). If the marriage is void, the children born out of it are considered
to be illegitimate. Legitimation means that a child who is illegitimate, at the time of birth acquires the status
of a legitimate person as a result of some act that occurs after the date of its birth, such as the subsequent valid
marriage of its parents. The distinction between legitimate child and a legitimated child is also important under
certain situations. The question whether a person is born legitimate or has been legitimate or adopted becomes
relevant not only in the field of succession but as well as areas as domicile, nationality, and the custody of
minor children.
LAW GOVERNING LEGITIMACY

In a case involving foreign element, where the question is whether a person is born legitimate or not by
reference to which law is this question to be decided? In English domestic law before the legitimacy act, 1959,
the established rule was that no child could acquired the status of unless born out of parent, whose marriage
was valid at the time of its birth. But many countries, including Scotland had long recognise the doctrine of
putative marriage under which a child could be legitimate, even though his parents were not validly married.
Legitimation is the legal process of making an ill legitimate child legitimate. There are two principal methods
of legitimation, which are common to most of the legal systems of the world. They are legitimation by
subsequent marriage or legitimation by the recognition given by the child’s father.

ADOPTION IN COMMON LAW FOREIGN ADOPTION

The legal system of different countries differ widely asked to the object underline adoption. The method by
which adoption is to be made. The condition to be satisfied for valid adoption and consequently adoption may
give rise to complicated problems in private international law. In Roman law and Hindu law, adoption was
not conceived as a mode of legitimate ill legitimate children, but their aim was to mitigate the hardship of the
child by legally providing them with children.
Under the various English adoption act is no adoption can be made without an adoption order from a
competent court and the court will not pass an adoption order unless it is satisfied that the propose adoption
is for the welfare of the child. Before an application for adoption is made to the court, the child must have
been in the care and custody of the proposed adopter continuously at least for a period of three months.
In England, section 426 of the adoption act of 1968, provide rules for recognition of foreign adoption and
grounds on which recognition may be denied. These sections also provide grounds for the announcement in
England of an adoption granted in a convention country.

ADOPTION IN INDIA

In India, adoption is recognised only by Hindu law. The principles of Hindu law regarding adoption have been
codified by the Hindu adoption and maintenance act 1956. No adoption order by a court is necessary, unlike
in the case of English statutes, the only thing that is necessary is that the necessary ceremonies of adoption
must have been performed. Under the modern Hindu law, every Hindu, male or female has a capacity to make
an adoption if he or she is a major and is of sound mind. A married male can only adopt with the consent of
his wife and a married woman cannot adopt even with the consent of her husband. Under Hindu law, once an
adoption is made, it is final bookable. It cannot be cancelled by the adopter or the natural parent, nor can the
adopted child renounce his adopted parents and return to his natural family.

UNIT 17: Property

a) Distinction between movables and immovables

b) What law determines whether the property is movable or immovable
 c) Jurisdiction in the case of immovable property: The Mocambique Rule
d) Exceptions to the Mocambique rule
e) Succession to immovable property
f) Transfer of tangible movables
g) Transfer of intangible movables
h) Position in England and India

DISTINCTION:

MOVABLE IMMOVABLE
Can be easily shifted/moved from one Cannot be Moved from one place to
place to another. another.
Includes Vehicles, electronics, jewellery, Includes real estate like housing, land,
etc factory, etc
Registration is not compulsory Registration is Compulsory
Transfer is easy with less formalities Transfer is complex
Can be pledged as security Can be mortgaged
Transfer can take place orally or in writing Transferred only by writing
Rights Include possession, use, transferand Rights include ownership, letting out onrent lease
incumber et, right to transfer, use,
incumber, partition etc.

Movable property is defined under section 2(9) of Defined under section 3 of Transfer of Property act
the Registration act as including sanding timber, ad does not include standing timber, growing crops
growing crops and grass, fruit upon and juice in or grass. It includes things found on or attached to
trees and property of every description except for earth as well as deep within the earth.
immovable
property.

Governed by Lex Domicili Governed by Lex Situs.

Following various judicial pronouncements immovable properties also include right to collect rent for
immovable, hereditary office, eight to ferry and fishery, interest of mortgage in immovable property, factory,
walls, etc. Judicially recognised movable properties include promissory notes issued by government, royalty,
standing timber, grass, etc.

JURISDICTION IN THE CASE OF IMMOVABLE PROPERTY: THE MOCAMBIQUE RULE

Immovable property is governed by the principle of lex situs as a general rule. A foreign court does not have
jurisdiction to make orders relating to land in another jurisdiction. This is popularly known as the Mocambique
rule as propounded in the land mark case of British South Africa Company v Companhia de Mocambique
1893. The House of Lords laid down the rule that an English court has no jurisdiction to adjudicate upon the
right of property in or the right to possession of foreign immovables even though the parties may be resident
or domiciled in England. the plaintiff company alleged that it was in possession of large tracts of land in South
Africa and the defendant company wrongfully trespassed and took possession of those lands. The plaintiff
company prayed for a declaration that it was in lawful possession of lands and an order of injunction against
the defendant and a large sum of money as damages. The court of appeal took the view that such an action is
maintainable before English courts. The house of lords reversed the decision of the court of appeal and held
that the English court has no jurisdiction to entertain a suit with respect to foreign immovables.

THE EXCEPTIONS TO THE MOCAMBIQUE RULE AS OBSERVED BY LORD HERSHELL ARE AS

FOLLOWS:

1. With respect to any contract made or equity between the persons in this country, respecting lands in a
foreign country, particularly in the British Dominian, this court will hold the same jurisdiction as if
they were situate in England
2. In the exercise of the undoubted jurisdiction of the courts, it may become necessary incidentally to
investigate in the determination of title to foreign lands

First exception: Action founded on personal obligation

The essential condition for the exercise of jurisdiction is that the defendant should personally be subject to the
jurisdiction of the court. The court can pass a decree, which though personal in form, will indirectly affect
land abroad. It however must be possible for the defendant to carry out the direction given in the English
decree in the place where the property is situated. There must also be some personal equity running from the
plaintiff to the defendant in other words there must be a privity of obligation between the plaintiff and
defendant and it must arise from the transaction as between them.

Second Exception: Questions affecting foreign land incidentally arising in an English action

In the case of administration of trust or estate of a deceased person, if the property includes immovables or
movables in England as well as immovables situated in a foreign country, the English court has jurisdiction
to determine questions affecting the foreign immovable property for the purposes of administration.

In personam obligation or incidental title.

The application and scope of Mocambique rule in modern day private int law was discussed in a more recent
judgement Griggs Group Ltd v Ross Evans 2004 UK HC which held that in personam jurisdiction on property
abroad has existed for 250 years and the first exception to the Mocambique rule. The result of this exception
is that the jurisdiction is not over the property but over the person, even though the result is to alter the
ownership of foreign land.

Note: However when right in rem in immovable property is involved that is right against the whole world and
not inter se between the parties, will be governed by the Mocambique rule and not the exception.

This is also highlighted in Brussels Convention Art 16(1). In so far as the second exception is concerned it
will apply if in the determination of the right in rem turns out to be merely incidental to the main proceedings.
The party will however, prove that the right of property over the foreign land in question does not form the
foundation of the claim but is merely incidental thereto.
In the case of Singh v Singh, 2009 Australian SC it was held that it is important that the relief framed should
fall in the second exception otherwise Mocambique rule will apply. In this case the facts are as follows:

1. Two brothers residing in Australia were involved in a property dispute for the immovable property
situated in Malaysia.
2. One brother x was supposed to hold this property on trust for the other, but instead he transferred it to
his own wife and daughter.
3. Brother Y for whom the property was held on trust brought proceedings in Western Australia against
x and his wife and daughter to prevent them/injunct them from further alienating the property and also
the transfer of property back to him.
4. The majority decision held that the case does not concern with the mocambique rule itself. The
respondents claim falls with in second exemption to the rule. The respondent asks for a relief in
personam against the defendant and the court will act upon the judicial conscience. The jurisdiction is
not over the property but over the person of the defendant that is brother x and his wife and daughter.
5. It is therefore a general rule of private int law that a foreign court does not have jurisdiction to pass
any order over a foreign land but is restricted to those proprietary claims in rem that form the gravamen
of the claim.

Therefore, as per recent jurisprudence the Mocambique rule has become an exception and the exception has
become the rule. Succession to immovable property, the equitable doctrine of actions regarding immovable
property situated in foreign country is based on the rule of lex citis.

In India the law is given in Section 16 CPC- proviso re instituted either in court property situate or local limits
within defendant actually resides. Thus in matters relating to immovable property the suit is to be instituted in
the court within the local limits of whose jurisdiction the property is situated. In the matter of choice of law,
the Indian courts have followed the principle that in matters relating to immovables the governing law is lex
situs.

SUCCESSION TO IMMOVABLE PROPERTY:

The equitable doctrine of actions regarding immovable property situated un foreign country is based on the
rule of Lex Situs. In India the law is given in Sec 16 of CPC.

Mahadev v Ramchandra It was held that even if the proviso to sec 16 is considered to be not applicable to
cases where land is situated outside India, the English rule relating to jurisdiction in personam applies in India.
Relief can be obtained through personal obedience of the defendant. This was a suit for mean profits of land
in foreign country of the defendant who was residing within the jurisdiction of the Bombay hc.

The explanation to section 16 talks about immovable property situated in India. Reason why courts have
applied India pvt int law instead of proviso to sec 16 in deciding the question of immovable property on
foreign land.

Similar to English pvt int law as the general rule in both the laws is that all aspects of succession intestate or
testamentary are regulated by the Lex situs. This is very clear under the English wills act and also Indian
succession act 1925.
Section 5(1) ISA states that succession to immovable property in India of a deceased person shall be regulated
by the Indian law, wherever such person may have had his domicile at the time of his death.

In Vishwanathan v Syed Abdul Wazid 1963 SC it was observed that succession to immovables is governed
by the Lex situs of immovable property. This rule also applies to construction of wills (s74-104SA) and
doctrine of election (s180-190 SA) The draft convention on the formal
validity of the wills made at Hague in 1961 lays down that the will will be formally valid if it confirms to the
internal law of the country where it is executed or the testator was domiciled or a national.

For the succession of movable property, the law of the domicile applies under the English law and Indian law.
Sec 5(2) SA Movable- tang/intang.

TRANSFER OF MOVABLE PROPERTIES, TANGIBLE AND INTANGIBLE:

Mobilia Sequuntur Personam

With reference to transfer of movables affected by the act of parties there exists 4 theories for the choice of
law to govern the transfer of movable properties.

1. Lex Domicili- this is the oldest theory on the reasoning that movable property has no fixed situs, and the
situs can be shifted anytime by the owner that is the property will follow the person (Mobilia Sequuntur
Personam). Therefore, it is the domicile of the person that will therefore determine the principles of
transfer of such property. However, Graveson points out that the defect in this theory is its complete
unpredictability in a world where men of commerce call for certainty.

2. Lex loci actus theory: in Alcock v Smith 1892 Justice Kay observed that as to personal shattles, it is settled
that validity of transfer will depend on the law of the country on which the transfer takes place and not the
law of the domicile. This theory is disregarded by majority of the jurists including Cheshire and Graveson.
Cheshire illustrates that if an Englishman grants lien over his furniture in London to another Englishman
and the document is executed in Edinburgh, it is unthinkable that Edinburgh (Scotland) will be the
governing land just because the execution takes place there.

3. Lex situs: with respect to transfer of goods advocates that the law applicable must be the law of the country
where the movable property is situated. In Re Anzinani 1930 Justice Maugham observed that business
could not be carried out if Lex situs is not applied specially in contractual transactions. However Graveson
criticises this theory particularly if goods are in transit and their situs is casua, fleeting or not known.

4. Proper Law Theory: According to Cheshire the law that may be chosen to govern questions arising out of
the transfer of the movables is the law of the country with which the transfer has "The Most Real
Connection"(Similar to Proper Law of Contract Theory). However, Cheshire admits that lex situs will be
a more suitable theory in so far as a third party is concerned. Morris is in favour of applying this theory to
goods in transit. The above theories also apply to the assignment of intangible movables.

In the case of Ravindra N Mitra vs LIC 1964 Calcutta High Court where the father assigned his life
insurance policy to his son in Bombay, the sum assured also being payable in Bombay and the policy taken
prior to partition of India, the court held that the government of Pakistan cannot confiscate the policy
irrespective of the fact that the premiums were paid at the Dhakka branch. The court applied the proper
law theory and held that the Indian law will apply.
 In so far as shares are concerned the English and the Indian Rule is that the Lex situs will apply, i.e., the
place where the register of shares is kept. (London and South American Trust vs British Tobaco Company
1927) & (In Re Indian Bank) The Indian Companies act lays down the procedure for transfer of shares
and the transfer is complete if the registration of the transfer of shares certificate is in the name of the
transferee in the share register.

UNIT 20: Recognition and Enforcement of foreign judgments

a) Need for recognizing foreign judgments

b) Limitations in recognition and enforcement

c) Indian legislations applicable: The Code of Civil Procedure and the Indian Evidence Act

NEED FOR RECOGNITION OF FOREIGN JUDGEMENTS:

1. Old English cases such as Gever v Aguilar stated that the need for recognising judgements is the theory
of comity of nations. Cheshire criticises this theory because it excludes all the defences and goes
against natural justice. Furthermore to apply theory of comity good relations and reciprocity between
the countries is necessary which may be difficult in a multi polar global order.

2. The theory of obligation was recognised in several English judgements later for instance in Williams
v Jones 1845 and Godart v Grey 1870. Justice Blackburn observed that the judgement of a court of
competent jurisdiction over the defendant imposed a duty or obligation on him to appear and the courts
in this country are bound to enforce. This theory makes the defences under the domestic law available
to the defendant. It is criticised because it is difficult to follow in divorce cases and judgements in rem.
(13 cpc w s14&44A)

3. H E Reads has propounded the theory of judicial reasons or ideas of social value to recognise foreign
judgements. Theoretically this view holds good as every judgement is recognised in the interest of
justice. However, practically it is difficult to apply as the question of recognition based on justice
would require detailed examination on a case by case basis.

INDIAN LAW ON RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENT.

CPC Section - Sec 13/14/44A

Evidence Act - Sec 45/57/74/78/82/84

The doctrine of obligations as discussed above is the backbone of recognition and enforcement of foreign
judgements in India as enshrined in Section 13/14/44A CpC. This theory is based on the premise that the
judgement debtor owes an obligation to Decree holder under the law of the state which passed the decision
for this reason, a foreign judgement cannot have an automatic effect in India. Instead the judgement constitutes
the cause of action which must be recognized and enforced by fresh legal proceedings in India.
The doctrine of reciprocity has limited effect wherein section 44a permits certain foreign judgement of
superior courts notified by the Central Govt. to have automatic effect. Judgements even from these countries
must be pronounced on the principles of competent jurisdiction, which includes:

1. Nationality or Habitual Residence of The Judgement Debtor

2. Express or Implied Submission of Judgement Debtor
3. Cause of Action in Foreign Jurisdiction

India is not a signatory to HCCCA or the judgements convention The Hague Choice of Code Convention &
Agreements 2005, these conventions harmonise the law on recognition and enforcement of foreign judgements
in civil and commercial matters by enabling interested parties to know in advance the grounds on which a
foreign decision maybe recognized in another contracting state. HCCCA has been recognized in the
EU/UK/Singapore/Mexico.

A judgement is said to be not given on merits If evidence is not recorded, trial is not held properly,
reasonable opportunity of hearing is not given to any party or if it is given ex parte without due service. Ellis
v M Henry 1871 and Gajanan Sheshadari v Shanta Bai 1939 Bom However if a judgement is not on merits,
the court does not reopen the case. If it can be gathered from the foreign judgement that judicial mind was
applied and the procedure according to which the suit has been decreed is proper, then the defendant cannot
take the defence under section 13 B.

Natural justice: judgement opposed to this if the defendant was not served the notice/summons of the
proceedings. Not given adequate opportunity to present his case. Not given proper reasons in the foreign
judgement. Can prove that the judge was biased Prawly v Issacs 1861 Edulji Burjogi v Manik ji Patel.

Fraud: Extrinsic collateral act which vitiates the solemn proceedings in a court of justice. In Sama Reyer v
Annamalai 1884 it was observed that a foreign judgement can be impeached for fraud or collision. Sakaran v
Laksmi Kerala hc observed that judgement of English court was vitiated by fraud however the SC overruled
this judgement by relying on several English and Canadian judgements on fraud including Mac Donalds v
pier. 1963

Judgement contrary to international law or Indian law: this ground overlaps with clause f of section 13
which lays down that foreign judgement is not conclusive if it sustains a claim founded on breach of Indian
law. In Pires v Pires 1967 it was held that a judgement in breach of a law of the states cannot be enforced
under section 13. In this case confirmation of foreign decree was sought from a court in Goa for divorce. The
marriage was Roman Catholic marriage and the Portuguese court at that time laid down that such marriage
was indissoluble union. It may be noted that the head of public policy is not expressly given as a defence in
section 13 cpc unlike English law. However it is implicit in section 13 clause f.

S.13 CPC: When foreign judgment not conclusive

• A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the
same parties or between parties under whom they or any of them claim litigating under the same title
except-
• (a) where it has not been pronounced by a court of competent jurisdiction
• (b) where it has not been given on the merits of the case
• (c ) where it appears on the face of the proceedings to be founded on an incorrect view of international
law or a refusal to recognize the law of India in cases in which such law is applicable
• (d) where the proceedings in which the judgment was obtained are opposed to natural justice
• (e ) where it has been obtained by fraud
• (f) where it sustains a claim founded on a breach of any law in force in India.

S. 13 (f)

• Clause (f) of section 13 of the CPC 1908 provides that a foreign judgment which sustains a claim founded
on a breach of a law in force in India would not be enforced. This clause can therefore only apply if the
judgment is founded on a cause of action that has either arisen in India or has a close link with India.
• What renders a foreign judgment unenforceable is a breach of an Indian law. An obvious example would
be a judgment awarding damages for the breach of a contract to be performed in India which was illegal
under some Indian law. A judgment awarding damages for the breach of a contract which has no
connection with India cannot contravene clause (f) even if its terms would have been prohibited by some
law in India.
• It has been held by the Supreme Court of India that a marriage governed by the Hindu Marriage Act 1955
can only be dissolved on the grounds mentioned in the Act. A foreign divorce decree based on some other
ground would be violative of clause (f) and would therefore be unenforceable in India.

S.14, CPC Presumption as to foreign judgment

The Court shall presume upon the production of any document purporting to be a certified copy of a foreign
judgment, that such judgment was pronounced by a court of competent jurisdiction, unless the contrary
appears on the record; but such presumption may be displaced by proving want of jurisdiction

S. 44A, CPC Execution of decrees passed by Courts in reciprocating territory

• (1) Where a certified copy of a decree of any of the superior courts of any reciprocating territory has been
filed in a District Court, the decree may be executed in India as if it had been passed by the District Court.
• (2) Together with a certified copy of the decree shall be filed a certificate from such superior court stating
the extent if any to which the decree has been satisfied or adjusted and such certificate shall, for the
purposes of such proceedings under this section shall be conclusive proof of the extent of such satisfaction
or adjustment.
• (3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the
proceedings of a District Court executing a decree under this section, and the District Court shall refuse
execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any
of the exceptions specified in clauses (a) to (f) of section 13.

Explanation 1 – Reciprocating territory means any country or territory outside India which the Central
Government may by notification in the Official Gazette declare to be a reciprocating territory for the
purposes of this section; and superior courts with reference to any such territory means such Courts as
may be specified in the said notification.
Explanation 2 – Decree with reference to a superior court means any decree or judgment of such Court
under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a
like nature or in respect of a fine or other penalty.
The Indian Evidence Act 1872

• The Indian Evidence Act supplements the CPC by providing rules regarding the admissibility of evidence
in matters pertaining to the recognition and enforcement of foreign judgments. Section 41 of the Indian
Evidence Act specifies that judgments, orders, or decrees of any court of justice shall be presumed to be
pronounced by a court of competent jurisdiction unless the contrary appears on the record.
• Section 13 of the Indian Evidence Act deals with the relevancy of judgments in subsequent proceedings.
It states that judgments of foreign courts are relevant if they are based on the same facts and the matters
in issue have been directly and substantially in issue in the former proceeding.