1. DISCOVER . LEARN . EMPOWER
UNIVERSITY INSTITUTE OF LEGAL STUDIES
SUBJECT : Private International Law
• PIL comes into operation whenever the court is faced with a claim
that contains a foreign element. It functions only when this element is
present and its objects are threefold:
• To prescribe the conditions under which the court is competent to entertain such a claim;
• To determine for each class of case the particular municipal system of law by reference to
which the rights of the [parties must be ascertained;
• To specify the circumstances in which a foreign judgment can be recognized as decisive of the
question in dispute
3. Definition of PIL
• “PIL is that part of law which comes into play when the issue
before the court affects some fact, event or transaction that
is so closely connected with a foreign system of law as to
necessitate recourse to that system”. …Cheshire
• “PIL is the rules voluntarily chosen by a given state for the
decision of cases which have a foreign complexion”. …Baty,
Polarized Law, p. 148
4. Examples of PIL Situation
• One of the parties may be foreign by nationality or domicil;
• A trader may be declared bankrupt in England having numerous creditors abroad;
• The action may concern property situated abroad or a disposition made abroad
of property situated in England;
• If the action is on a bill of exchange the foreign element may consist in the fact
that the drawing or acceptance or endorsement was made abroad;
• A contract may have been made in one country to be performed in another;
• Two persons may resort to the courts of a foreign country where the means of
contracting or of dissolving a marriage are more convenient than in the country
of their domicil.
5. Scope of PIL
• Private International law is not a separate branch of law in the same sense as the
law of contract or of tort , for example.
• It is all pervading.
• It starts up unexpectedly in any court and in the midst of any process. It may be sprung like a
mine in a plain common law action, in an administrative proceeding in equity, or in a divorce
case, or bankruptcy case, in a shipping case, or a matter of criminal procedure…The most
trivial action of debt, the most complex case of equitable claims, may be suddenly
interrupted by the appearance of a knot to be united only by PIL. …Frederic Harrison
6. Scope of PIL
• Nevertheless, PIL is a separate and distinct unit in the English
Legal System just as much as the law of tort or of contract,
but possesses the unity , not because it deals with a
particular topic but because it is always concerned with one
or more of three questions namely, jurisdiction, choice of
law and recognition of foreign judgment.
7. The Name of the Subject
• The expression “Private International Law”, was coined by
Story in 1834 in his book Commentaries in the Conflict of
Laws. Then it was adopted by early English writers such as
Westlake and Foote and is used in most civil law countries.
• The main criticism against this name is its tendency to
confuse with Public International Law, between which there
are obvious differences.
8. The Name of the Subject
• An equally common title to describe the subject is “ The Conflict of Laws”. This title is generally
used in USA.
• This is innocuous if it is taken as referring to a difference between the internal laws of two
countries on the same matter. For instance, a question arises whether the assignment in France
of a debt due from a person resident in England ought to be governed by English or by French
internal law, it may be said that this two legal systems are in conflict with each other in the sense
that they can each put forward claims to govern the validity of the assignment.
But the title is misleading if it is used to suggest that two systems of law are struggling to govern a
case. If an English court decides that the assignment must be governed by French law it does not
mean that English law is worsted in a conflict with the law of France. Rather it is because the
private international law of England suggest that it is expedient to refer the matter to French law.
9. The Name of the Subject
• In fact, the very purpose of private international law is to avoid conflicts of law,
and the one case where a genuine conflict arises is where two territorial systems,
differing in themselves, both seek to regulate the same matter, as, for example,
where the bequest of a Greek citizen dying domiciled in England is governed by
the law of his domicil according to the English doctrine but by the national law
according to the Greek view.
• Some other title which have been used to describe the subject are “ International
Private Law”, “Inter-municipal Law”, “Comity”, “Extra-territorial Recognition of
• However no name commands universal approval. Hence no title can be found to
be accurate and comprehensive.
10. The Name of the Subject
• Two titles “Private International Law” and “Conflict of Laws”
are so well known to and understood by lawyers that no
possible harm may ensue from the adoption of either of the
• The “Conflict of Laws” is preferable because it is unrealistic
to speak in terms of international law if the facts of the case
are concerned merely two countries.
• But the term “ private International Law” is most widely used
throughout the world, significantly in England, in European
11. The Characteristics of PIL
• In conclusion, the Insolvency and Bankruptcy Code, 2016, is a progressive legislation that is intended to
improve the efficiency of insolvency and bankruptcy proceedings in India. The new legislation provides for
the early detection of financial distress and a time bound process for resolution. However, many details on the
IBC's PIL is a branch of municipal law.
• PIL is essentially a system of Indicating choice, choice of jurisdiction, choice of law and recognition of a
• PIL does not give a final decision. It is comparable with a railway inquiry room. By approaching the inquiry
room you can only ascertain the platform from which a particular train leaves. It is the train that reaches you
to your destination not the enquiry room.
• need to be worked out in the regulations, and its success will depend to a large extent on how quickly a high
quality cadre of insolvency resolution professionals will emerge and on whether the time bound process for
insolvency resolution will be adhered to in practice.
12. The basis of PIL
Comity: Reciprocity of two friendly states. But comity is a
phrase which is grating to the ear, when it proceeds from the
decision of a court of justice.
Convenience: For the sake of convenience and expediency
resort is made to PIL
Justice: Graveson says: the basis of PIL is sociologically, in the
international nature of human affairs; ethically, in the desire
of English courts to do justice; and legally, in the obligation of
their oath in office.
13. The basis of PIL
• Justice is broadly a legal reflection of ethical or moral values
conditioned by time, place and circumstances.
• Graveson pointed out: Anything lesser than the basis of
justice will not be sufficient and anything greater than the
baisi of justice is not possible.
14. The Three Principal Questions of PIL
• Choice of Jurisdiction: has the court jurisdiction to deal with
the specific issue?
• Choice of Law: By what system of law should the specific
issue be decided?
• Recognition and enforcement of foreign judgment: By what
tests will the English courts decide whether the judgment of
a foreign court should be recognized or enforced in England
15. Choice of Jurisdiction
•The court decides the jurisdiction first. It is
decided on the basis of the claim of the
petitioner or plaint of the plaintiff.
•Either explicitly or implicitly the jurisdiction has
to be decided.
16. Choice of Law
• The court is to decide, after determination of the jurisdiction, which
of the laws connected with the dispute would be applicable. It may be
that different aspects of dispute are to be determined by different
choice of law. For example, in the question of validity of a marriage
there may arise three question:
• Had the parties capacity to marry?
• Were there any prohibitions for solemnizing their marriage?
• Was the marriage celebrated according to the prescribed
• The first and second questions may be determined by one law and
the third question may be determine by the law of the place where
the marriage was celebrated.
17. The Choice of Law
• An Example: If a suit is filed for damages for breach of
a contract entered into between a Burmese resident
trader and a Chinese resident trader in Dhaka for the
supply of certain quantity of rice to be shipped to
Calcutta. Now presume that the suit was filed in a
Calcutta Court. The question before the Calcutta Court
then is: which law is to be applied: Law of Burma, Law
of China, Law of Bangladesh or Law of India.
18. Recognition of Foreign Law
• There may be situation to take into account foreign law on a point for
decision. The reasons are two fold:
• Firstly; The invariable application of local law may lead to injustice.
Suppose that a person engaged in English litigation is required to
prove that she the lawful widow of a man who has just died, the
marriage ceremony having taken lace many years ago. The marriage
ceremony though regular according to the law of the place where it
was performed, perhaps did not satisfy the requirements of English
law but nevertheless to apply English law to such a union and thereby
to deny the validity of the marriage, would be nothing but a travesty
19. Recognition of Foreign Law
• 2ndly, To consider only the law of a particular country might well be to
reverse the legal obligations of the parties as fixed by the law to
which their transaction both in fact and in intention was originally
• For instance, a promise made by an English man in Italy and to be
performed there , if valid and enforceable by Italian law, would not be
held void by an English court merely because it was unsupported by
20. Private International Law
• “Though attained adulthood in the UK and other western countries ,
the subject of PIL is still in its infancy in our country. Literature,
textual, judicial and legislative, is rather scanty and litigation under
this head is minimal and less diversified than in western countries.
Therefore, whenever the judges or lawyers are called upon to deal
with disputes in this branch of law, they have almost always relied
upon the exposition of the principles of law as laid down in