PRIVATE INTERNATIONAL LAW By Sonali Renuse

CONFLICT OF LAWS
INTERNATIONAL PRIVATE LAW

 TYPES OF LEGAL SYSTEM
 CIVIL OR CONTINENTAL
 COMMON LAW LEGAL SYSTEM
 SCANDINIVIAN LEGAL SYSTEM
 CHARACTERISTIC FEATURES

 INTERNATIONAL LAW : PUBLIC AND PRIVATE
 PUBLIC : LAW OF NATIONS
 PRIVATE INTL LAW :
 BRANCH OF LEGAL SERVICE APPLIED
 WHEN THERE IS A CONFLICT BETWEEN TWO
OR MORE SETS OF LEGAL SYSTEM
 OVER A GIVEN ISSSUE

 COMMON LAW COUNTRIES : US, ENGLAND ,
CANADA , AUSTRALIA : CONFLICT OF LAWS
 FRANCE, ITALY, GREECE, SPANISH ,
PORTUGUESE SPEAKING COUNTRIES : PRIVATE
INTL LAW
 INTERNATIONAL PRIVATE LAW : GERMANY

 MUNICIPAL SYSTEM
 MUNICIPAL COURTS :
 COURTS
 LAW
 PARTIES
 FOREIGN ELEMENT ?
 EGS :

 PRIVATE :
 INTERNAL LAW
 PRIVATE INTL LAW
 FOREIGN ELEMENT EXISTS:
 CHOICE OF JURISDICTION
 CHOICE OF LAW
 RECOGNITION AND ENFORCEMENT OF
FOREIGN JUDGMENTS

 WHY FOREIGN LAW?
 COMITY
 FOR THE DETERMINATION OF RIGHTS
 DEMAND FOR JUSTICE

 CHARACTERIATION / CLASSIFICATION
 LEX FORI
 LEX CAUSAE
 PRIMARY/SECONDARY
 COMPARATIVE LAW & ANALYTICAL JURISPRUDENCE
 APPLICATION / EXCLUSION OF FOREIGN LAW

 DOMICILE
 AREAS :
 FAMILY LAW
 LAW OF PERSONS
 LAW OF PROPERTY
 LAW OF OBLIGATIONS: CONTRACT/TORTS
 PROCEDURE
 FOREIGN JUDGMENTS

 Private International Law is a merger of two
concepts: that of Private Law and of International
Law. Private law is the law that is voluntarily
invoked by individuals or States acting in the
capacity of an individual by entering into any sort
of legal relationship.
 International law is the law arising between
different national (or municipal) systems of law.
 In the words of Cheshire: “Private International
Law, then, is that part of the law which comes into
play when the issue before the courts affects
some facts, events or transaction that is so
closely connected with a foreign system of law as
to necessitate recourse to that system.”

 The reason behind Private International Law
is the existence in the world of a number of
separate municipal systems of law.
 National legal systems reflect differences in
history, tradition, and socio-cultural values.
The United States has a common law system
characterized by a strong emphasis on
judicial decisions as an independent source of
law. Canada combines this common law
system with civil law Quebec and considers it
bi-jural.

 Civil law systems trace their origins to Roman law and
traditionally rely on comprehensive codes for ordering
their legal materials.The legal systems of the world
consist of a variety of territorial systems, that is their
own municipal system, each dealing with the same
phenomena of life-birth, death, marriage, divorce,
bankruptcy, contracts, wills and so on-but in most
cases dealing with them differently. The moment that a
case is seen to be affected by a foreign element, the
court must look beyond its own internal law.
 Foreign element may be foreign law or facts, that is,
factual circumstances, factual content, factual
ingredients of a legal cause of action, fact patterns
which in one or more ways are linked to a foreign legal
system or a foreign country. It just means contact with
a foreign system.

 When it is said that cases having foreign
elements are to be determined by reference
to relevant foreign law, the question is what is
meant by ‘foreign law’. When a case is
decided by a court with reference to a system
of law which is different from a system of law
which the court will apply to a purely domestic
case, such law is called foreign law.

 Private International Law suffers from a curious juxtaposition. In
spite of the term ‘international’ being part of its nomenclature, the
only international aspect is the foreign element. Private
International Law, though has an international aspect, is essentially
a branch of municipal law. This is why every country has its own
private international law. However, Private International Law
through a branch of municipal law, does not deal with any one
branch of law, but is concerned practically with every branch of law
and thus has a very wide ambit.
 The function of Private International Law is complete when it has
chosen the appropriate system of law. Its rules do not furnish a
direct solution to the dispute, and it has been said by a French
writer that this department of law resembles the enquiry office at a
Railway Station where a passenger may learn the platform where
a train starts.
 Private International Law, by its very nature, merely indicates the
governing law under which a case is to be decided

 The role of Private International Law is to
determine the following:
1. In what circumstances the court will assume
jurisdiction over cases having foreign
elements? (Choice of Jurisdiction)
2. Which law will the court apply in deciding such
cases, the native municipal law or a foreign
law? (Choice of law)
3. In what circumstances it will recognize a
foreign judgment or when it will order the
execution of a foreign decree?

 Codification of Private International Law in
India
 Statutory provisions of Private International
Law in India are very rare. The rules of Private
International Law in this country are not
codified and are scattered in different
enactments such as the Civil Procedure
Code, the Contract Act, the Indian Succession
Act, the Indian Divorce Act, the Special
Marriage Act, etc. In addition, some rules
have also been evolved by judicial decisions.

3. Unification of Private International Law.
 Need for the unification of Private
International Law arises primarily because of
two reasons. The internal laws of different
countries differ from each other and the
Private International Law rules adopted by
different countries also differ from each other.

 Therefore unification of laws also takes place in
two steps:
1. Unification of Internal laws of the countries of the
world.
2. Unification of the rules of Private International
Law.
 a. The first step in the direction of the unification
of internal laws was taken by the Bern Convention
of 1886 under which an international union for the
protection of the rights of authors over their
literary and artistic works was formed. After the
First World War, an International Institute for the
Unification of Private Law was established at
Rome.

 The Warsaw Conventions of 1929 which has
been amended by the Hague Convention of 1955
is a very important landmark in that direction. This
Convention provides for uniform rules relating to
the carriage of goods and persons by air.
 In the Brussels Convention of 1922-23, the
unification of rules relating to the carriage to
goods and persons by sea came into existence.
Then came in the Geneva Convention on
International Carriage of Goods by Road of 1956.
The Geneva Conference of 1930 resulted in a
Convention on the Uniform Law of Bills of
Exchange.

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

PRIVATE INTERNATIONAL LAW By Sonali Renuse

 Till 12th century : nothing like PIL
 12 th century : began to emerge
 Greece : equally applicable to citizens of all
states
 Roman Law:
 For Romans : Jus Civile: dispute between
citizens
 Non citizens : ius /jus gentium :
amalgamation of roman laws and foreign
laws
 This created PIL

 Fall of roman empire : personal law: 6th to
10th century
 Saxon by saxon law
 Sabian by sabian law wherever they go
 Modern conflict of laws: 12th century
Northern Italy : feudal law replaced the
personal law
 13th century : development of trade and
commerce
 Traders of different countries
 Glossators

 Real statute : territorial
 Personal statute : personal
 Personal law: should not be opposed to
public order of the city
 No unanimity amongst the cities
 16th century : northern europe : territorial
laws were widely accepted
 19th century : savigny :
 Object of PIL is to find the seat of every legal
relationship

 Conflict : territorial law and law of place:
latter be applied

 Recent origin
 Suprising to know despite a trading nation it
did not feel the need for private
international law
 Beyond seas : Admiralty Courts
 17th century : few traces
 18th century : gained importance in England
and Scotland
 19th century : trade commerce flourished
 2oth century :

 Plaintiff lent money to X in Paris 300 pounds
 X lost to plaintiff immediately in gaming with
additional 372 pounds
 X gave : bill of exchange payable in England
 France : money lost at play : recovered as a
debt of honour before the Marshals of France
 X died : plaintiff bought a suit
 3 counts :
 Bill of exchange , money lent and money
received

 Held :
 Bill of exchange : void
 Recovery of money won at play : no action
for recovery
 Entitled to recover loan
 A claim contrary to public policy in England
cannot be pursued
 Remaining law : same French and English

 National laws are the primary sources of
Private International Law, but is also
embodied in :
 Treaties
 conventions
 model laws
 legal guides,
 and other instruments that regulate
transactions

 General statutes : specifying extra territorial
operation
 CPC : section 1 and 44 A
 Limitation Act 1963:
 Hindu Marriage Act 1955 : applies to Hindus
outside India

 Statutory Theory: Personal law may be applied
if it is not opposed to public policy or public
order.
 International Theory: There are rules of conflict
of laws which are universal and common to
various legal systems of the world.
 The Territorial or Acquired Rights Theory:
Courts of sovereign state do not apply foreign
law but merely recognize the consequences of
the operation of a foreign law. This theory tries
to reconcile the territoriality of a law and the
need for private international law

 Dutch jurist : Huber
 Earlier Dicey in England and Beale in US talk
about it
 A judge cannot directly recognise or sanction
foreign law nor can he directly enforce foreign
judgments
 Why ?
 Territorial laws
 What about the right ?
 Judge protects rights
 . Dr. Cheshire has vehemently criticized this
theory as being, ‘unnecessary’, ‘untrue’, and
‘unhelpful

 French widow claims a share of English
husband’s land
 Is it a question of succession or mutual rights
of husband and wife ?
 If mutual rights : french law
 If succession : english law

 Local Law theory: This theory is a slight
variation from territorial theory. The gist of this
theory is that the court recognizes and enforces
a local right that is created by its own law. But
as the dispute in question has a foreign element
the court would necessarily apply the rule of the
forum that would be applied in the case of a
purely domestic dispute. But for reasons of
social expedience and practical convenience it
takes into account the laws of a foreign country
in which the decisive facts have occurred.
Cheshire has observed that this theory is a
‘sterile truism’. Sterile because it affords no
basis for the development of a system of Private
International Law.

 The Theory of Justice: The approach of English
courts to private international law is pragmatic
and ethical. It has sociological, ethical and legal
aspects towards the end of justice. According to
Dr. Graveson, the basis of Public International
Law is sociologically, in the international need
for fair treatment in the private transactions of
individuals, ethically, in the desire of English
courts to do justice; and legally, in the
obligation of their oath in office. In essence the
rules of Private International Law in England are
made from the precedents with the ultimate
view of doing justice.

 Public International law is the body of legal rules, which
applied between Sovereign States and other International
Personalities.
 Conflict of laws, often called Private International Law.
Private International Law regulating relationship between
Private persons (Natural or Legal) of two different States.
 Public International law rules are outcome of International
custom and treaties.
 Private International law rules are framed by the State
legislature.

 Public International law is enforced by international pressure and
fear for example – breakage of diplomatic relations, sanctions
etc.
 Private International Law is enforced by the concerned State
executive.
 In public International Law there is no Predetermined Court.
 In private International Law courts are predetermined.
 Public International Law is same for all the States.
 Private International Law differ from state to state.

 Meaning :
 Once an Indian court concludes it has
jurisdiction to decide a matter and the
matter involves a foreign element :
 It has to address itself what is known as
characterisation

 Validity of marriage ? Capacity to marry :
parties domicile
 Validity of performance of marriage : place
where marriage took place
 Succession to property ?
 Movable : domicile of the deceased
 Immovable : lex situs

 Issue to be determined is it procedural or
substantive?
 Matters of procedure : lex fori
 All these questions require the court to
characterise the appropriate nature of the
dispute
 Characterisation : most of the times is
straightforward
 It raises problems
 The INCIDENTAL QUESTION

 THREE STAGE PROCESS
 CHARACTERISATION OF THE RELEVANT ISSUE
 SELECTION OF RULE OF CONFLICT OF LAWS
WHICH LAYS DOWN CONNECTING FACTOR FOR
THAT ISSUE
 IDENTIFICATION OF THE SYSTEM OF LAW
 CATEGORY TO WHICH THE ISSUE BELONGS
 IMMOVABLE : SITUS
 APPROPRIATE SYSTEM OF LAW

 CATEGORISATION IS A TECHNIQUE

 IN GENERAL : LEX FORI
 TWO EXCEPTIONAL CASES WHERE COURT
APPLIES FOREIGN LAW
 COHN V COHN
 SUCCESSION TO MOVABLES IN ENGLAND OF A
WOMAN WHO WAS DOMICILED IN GERMANY
 AIR RAID ON ENGLAND
 BOTH DIED
 PROPOSITUS AND ANOTHER YOUNGER
GERMAN WOMAN

 PROPOSITUS HAD MADE A WILL : HER
MOVABLES TO OTHER WOMAN ( PROVIDED SHE
SURVIVED HER)
 ENGLISH CONFLICT OF LAW: MOVABLES:
DOMICILE ,HENCE GERMAN LAW
 WHO DIED FIRST ?
 ENGLISH PRESUMPTION : YOUNGER PERSON
SURVIVED THE OLDER
 GERMAN PRESUMPTION : DIED
SIMULTAENOUSLY

 IS IT RULE OF EVIDENCE OR PROCEDURE?
 IF YES : LEX FORI APPLIES: ENGLISH LAW
 IF A RULE OF SUCCESSION : LEX CAUSEA
APPLIES : GERMAN LAW
 COURT APPLIED GERMAN LAW : GERMAN
CODE : SUCCESSION

 RE MALDONADO
 A WOMAN DOMICILED IN SPAIN DIED
 HER MOVABLES IN ENGLAND
 SHE HAD NO HEIRS
 HER PROPERTY TO SPANISH STATE OR ENGLISH
STATE?
 COURT : SPANISH LAW: COZ ITS RELATED TO
SUCCESSION
 CRITICISED COZ FOREIGN LAW WAS APPLIED
INSTEAD OF CATEGORISING THE ISSUE BEFORE
THE COURT

 H : DOMICLED IN FRANCE
 W1 : WOMAN DOMICILED IN ENGLAND
 MARRIED
 MARRIAGE IN ENGLAND
 FRENCH COURT ANNULED THE MARRIAGE ON THE
GROUND OF WANT OF CONSENT
 PARENTAL CONSENT WAS NOT OBTAINED AS PER
ART 148 OF THE FRENCH CODE
 ENGLISH WOMAN WENT THROUGH CEREMONY OF
MARRIAGE IN ENGLAND WITH AN ENGLISHMAN

 ENGLISHMAN : ASKS FOR DEGREE OF NULLITY
: SHE IS STILL MARRIED TO A FRENCHMAN
 QUESTION : VALIDITY OF FRENCH MARRIAGE ?
 TWO CONNECTING FACTORS :
 HUSBAND DOMICILED IN FRANCE AND
MARRIAGE SOLEMNISED IN ENGLAND

 ENGLISH PRIVATE INTERNATIONAL LAW: 2
RULES :
 CAPACITY OF HUSBAND : FRENCH LAW
 FORMAL VALIDITY OF MARRIAGE CEREMONY :
ENGLISH LAW
 EXTRA TERRITORIAL RECOGNITION
 CRITICISM :
 SAME PERSON ABLE TO MARRY AGAIN IN
FRANCE BUT NOT IN ENGLAND

 48 YEARS BEFORE OGDEN V OGDEN
 SIMONIN V MALLAC
 2 DOMICILED FRENCH : CAME TO ENGLAND:
WENT THROUGH CEREMONY OF MARRIAGE IN
ENGLISH FORM
 RETURNED TO PARIS AFTER 2/3 DAYS
 WIFE ASKED FOR DECREE OF NULLITY :
GROUND : LACK OF PARENTAL CONSENT

 FRENCH LAW: CAPABLE OF MARRIAGE BUT
WERE REQUIRED TO ASK ADVICE OF PARENTS
 PARENTS IF AVERSE: REPEATEDLY ASK EACH
MONTH FOR THREE MONTHS
 AT THE END OF 4TH MONTH : MARRIAGE CAN
TAKE PLACE, DESPITE DISAPPROVAL
 IT DIDN’T RENDER THEM INCAPABLE OF
MARRIAGE
 MARRIAGE VALID

 A case may involve: main question and a
subsidiary issue
 Once choice of law is made to answer main
question
 Choice of law needs to be done for subsidiary
issue as well
 Eg:
 A claims right to intestate succession to H’s
immovables in Italy.
 English conflict of law: immovables: lex situs

 So it means Italian Law
 A is recognised a H’s widow?
 Coz may be Italian courts do not recognise
H’s divorce from his first wife
 Main issue: intestate succession
 The incidental question : validity of marriage
?

 Main issue? Governed by foreign law
 Subsidiary issue? Own independent choice of
law
 Solution ? Can main issue and subsidiary issue
be governed by same law?
 Variety of solutions :
 Law governing main issue
 Law of the forum nature of individual case
 Policy of the forum

 Lawrence v Lawrence :
 First husband and wife : married in Brazil
and lived there till 1970
 1970 : wife obtained divorce in Nevada, USA
 ( not recognised in Brazil)
 Next day she married someone in Nevada
 Second husband : validity of second marriage
 Incidental question : Brazilian Law: Her
capacity to marry : English Domicile
 Nevada divorce recognised in England
 Court upheld the validity of second marriage

 Divorce recognition over her capacity to
marry
 Canadian Court : converse example
 Schwebel v Ungar :
 Jewish Husband –Wife : domiciled in Hungary
 Decided to settle in ITALY
 In Italy : en route to Israel: husband divorced
his wife by gett
 Hungarian Law, Italian Law: divorce invalid
 Israeli Law : valid

 Then they acquired Israel Domicile
 Wife visited Ontario : married a second
husband : second husband petitioned Ontario
court for decree of nullity : Bigamy
 Ontario court : not only wife’s capacity to
marry but also the validity of wife’s divorce
by Gett
 Upheld second marriage
 Chose capacity over divorce recognition

 Problem related to the incidental question is
picking and choosing
 Sometimes applying one law to all issues
would fail
 Different laws to differ issues
 Hence pick and choose
 Cautious : shouldn’t result in forum shopping

 The word “Renvoi” comes from the French
“send back” or “return unopened”.
 The “Doctrine of Renvoi” is the process by
which the court adopts the rules of a foreign
jurisdiction with respect to any conflict of
law that arises.

 The idea behind the doctrine is that it
prevents forum shopping and the same law is
applied to achieve the same outcome
regardless of where the case is actually dealt
with. The system of Renvoi attempts to
achieve that end.

 (b) in international commercial arbitration,—
 (i) the arbitral tribunal shall decide the dispute
in accordance with the rules of law designated
by the parties as applicable to the substance of
the dispute;
 (ii) any designation by the parties of the law or
legal system of a given country shall be
construed, unless otherwise expressed, as
directly referring to the substantive law of that
country and not to its conflict of laws rules;
 (iii) failing any designation of the law under
clause (a) by the parties, the arbitral tribunal
shall apply the rules of law it considers to be
appropriate given all the circumstances
surrounding the dispute.

 One might feel jurisdiction of the court is
decided and choice of law is made, the job
of the judge might come to an end
 However it isnt so
 Apply law ?
 Which law ?
 Internal or conflict of law
 Or entire law along with conflict of law rules

PRIVATE INTERNATIONAL LAW By Sonali Renuse

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