its a notes of private international law on proper law concept.

1. PROPER OF CONTRACT
A contract is a backbone of trade at a domestic or an international level. In India, the Indian
Contract Act, 1872 (ICA) forms the governing and foundational law in terms of regulation of
all forms of contract, however, one must also appreciate that the business contract between
individuals, institutions, companies, etc. have also grown beyond the boundaries of the ICA.
When contracts transcend national boundaries, the legal regime of a single country becomes
inadequate to regulate and control the implications of the international contracts.
Thus, when parties to a contract are from different countries, at least two systems of law
impinge upon the transaction and the rules and guidelines of private international law come
into play. Hence, there are multiple international conventions such as the United Nations
Convention on Contracts for the International Sale of Goods (CISG), or the clauses of
International Arbitration that play their role in the formation as well as governance of
contracts in India. In this article, we explore the challenges of choice of laws in the context of
international commercial contract and then briefly look at the practices prevailing in India
regarding the principles governing the choices of law.
Private International Law & contracts
When parties to a contract reside in different countries, different problems pose themselves
such as what law one or both the parties should follow or in which country the claim is
justiciable and in what way. Conflict of laws or private international laws is a set of laws or
guidelines that determine which legal systemor jurisdiction may apply in a dispute related to
contracts between parties. These rules typically apply when adispute has a ‘foreign’ element.
Thus, these laws and rules seek to reconcile the disparities among laws of different countries.
The conflict of laws may be seen at multiple levels, like, whether the court or the forum has
the power to decide the case presented before it, secondly, if the court or forum has the
jurisdiction, then which country’s law must be applied by the court or the forum to decide the
case, and thirdly, whether the courts have the ability to recognize and enforce a judgment
from a foreign forum or the court within its jurisdiction.
In a dispute related to contracts, as noted earlier, there may appear foreign elements, for
instance, in a case where an Indian businessman entered into a contract with its French
counterpart, and they decided that the goods will be delivered and paid for in the United

2. Kingdom. Consequently, however, one of the contracting parties breaches the contract, and
in an action brought in an Indian court, a question arises which country’s law should be
considered by the Court in deciding the case because laws of India, France and the UK might
be different in certain aspects. In that case, a general principle is that every international
contract (that is, a contract containing one or more foreign elements) has a governing law,
which is most often termed as the ‘proper law of the contract’.
The proper law of the contract, thus, helps in deciding the issues in a case. The parties have
the power to choose the proper law of the country with which the contract has the most real
connection. However, this may not entirely resolve the issue, because the idea of proper law
itself is ambiguous. It is possible that the law of a single country may not be adequate to deal
with the whole of the contract, since it may not deal with certain aspects of the contract.
Thus, some of the aspects may be subjected to one country’s law and some aspects of the
same contract may be subjected to other country’s law. Hence, the application of proper law
may itself become complicated for the courts and the forum.
Choice of the proper law
There has been a conflict persisting in the scholars whether the place of contracting or the
place of performance should be the criteria to determine which law should be applied to the
problem. But under Indian and English private international law the autonomy of the parties
in this matter has been recognized multiple times, which means the parties are deemed to
choose any law which could govern their contract. For international contracts, in the absence
of any domestic codification on that aspect, the Indian judiciary relies,for its persuasivevalue,
on the traditional common law position as enunciated in Vita Food Product Inc v Unus
Shipping Co.Ltd, wherein it was held by the Privy Council that the parties were free to choose
any governing law, irrespective of its connection with the contract, provided that the choice
was bonafide, legal and not contrary to public policy. Thus, The proper law of the contract
under the Indian private international law is determined on the grounds of justice, equity,
and good conscience.

3. It has also been observed that such a choice of the proper law of the contract may either be
express or implied. The choice may be considered express when the contract contains an
explicit provision of the specific governing law, in a situation of conflict. Thus, ideally, parties
of different nations are required to provide the provision for proper law. However, it may not
be possible in every case.
On the other hand, when the contract does not contain any such explicit provision for the
proper law of contract, in that case, the principle as laid down by Lord Simonds in the case of
Bonython v. Commonwealth of Australia is referred which says that the proper law of the
contract is the systemof law by reference to which the contract was made or that with which
the transaction has its closest and most real connection. The idea that the contract was made
with a reference to a certain systemof law represents the implied choice of the parties as the
proper law governing the contract. The most prominent example of an implied choice can be
the choice of a governing forum by the parties, that is, the contract contained a clause
providing the court of the jurisdiction of a particular country. In international commercial
contracts, the arbitration clauses which stipulate the place for arbitration may provide the
choice of the proper law.
The validating laws
Similar to the idea of the implied choice of the proper law of the contract, where a contract
or a particular provision in the contract is valid under the law of one country but invalid under
the another country’s law, the court may infer the tacit choice of validating law on the basis
that the parties had intended their contract to valid from the beginning and not void. For
instance, in In re Missouri S.S. Co., there was an exemption clause in a contract that was void
under the law of Massachusetts,however, the same was valid in Englishlaw. Thus, it was held
that the English law was the proper law, as the parties must have intended that their contract
as well as the exemption clause in question must be valid. Thus, until there appears anything
contrary in the contract, the court will consider the proper law in the law which validates,
rather than invalidates the contract.
Restrictions on the power to choose the proper law:

4. There are many reasons for the power of choosing the proper law in the very beginning of the
contract, firstly, it gives the parties a feeling of certainty as to the governing law, secondly, in
domestic systems of law, the parties are largely free to choose the terms of their contract for
themselves, from which the power to choose the governing law automatically follows as an
apparent and rational expansion. However, there are some limitations as well to the power
of parties to choose the proper law such as:
Mandatory rules of domestic law- Some rules of the domestic law are not optional, but
mandatory, which means they are applicable irrespective of any agreement of the parties to
the contrary. For instance, the rules which render the contracts void on the ground of public
policy, etc. This is to say that if parties are allowed an unrestricted choice of the governing
law, there will be chances on evasion from mandatory rules of the country with which the
contract is most closely connected, whose purpose may be to protect the public interest or
to protect the interests of a particular class, such as employees or consumers. Moreover, in
the Vita Foods case, it was held by the court that the only general limitation on the choice of
the parties regarding the governing law is that it must be made with bonafide intention and
it must be legal.
The law of the country with which the contract is most closely connected- in some cases,
where the choice of proper law cannot be derived either expressly or impliedly from the
contract, then the law of the country with which the contract is most closely connected is
deemed the proper law. The court, in this regard, considers various factors such as the place
of making the contract, the place of performance of the contract, the connection of the
parties with the countries, the site of any immovable property which is the subject matter of
the contract, etc. However, it is sometimes hard to determine the close connection itself.
Convenience and business efficiency- When the interest of the parties is emphasized in the
contract, then the court evaluates the contract in terms of business efficiency and
convenience. For this, the court looks at multiple factors with varying relevances while
deciding these connections, for instance, the factors like the place of making the contract or
the placeof performance may not be as important as the place where the parties carried their
business or where they reside in. Moreover, in relation to the interest of the parties, the law
of that country with whom the party belongs will usually be the accurate law. However, it is

5. still not easy to answer the question that the law of which party must be preferred, in an
international contract.
PIL & Indian jurisprudence
Indian private international law is majorly governed by judiciary decisions in concrete cases.
The courts have generally adopted the Englishrules of private international law.The Supreme
Court in Delhi Cloth and General Mills v. Harnam Singh had to decide whether Indian private
international law gave the parties the freedom to choose whatever governing law from any
part of the world. The casepertained to the recovery of balancefrom the plaintiff who resided
in Pakistan and was in business with the defendant in India.
Justice Bose observed that the subjective theory may produce strange results because of the
unconnected law and it is possible that there must be difficulty in enforcing the law if it is
illegalor againstthe public policy. Similar observation was provided in the caseof British India
Steam Navigation Co Ltd v Shanmughavilas Cashew Industries, the court emphasized the law
laid down in ista Foods case and held that the choice of proper law must be bonafide and
legal, and not against public policy. And also observed that it may not be permissible to
choose a wholly unconnected law. Similarly, the Calcutta High Court in Rabindra N Maitra v
Life Insurance Corporation of India upheld the same principle and observed that there would
be no justification for a choice of an unconnected law in the contractual agreement between
international parties, unless the law is also the proper law.
However, it has been argued that the position has changed subsequently, and in the case of
National Thermal Power Corporation v Singer Company, the Supreme Court abandoned the
restrictive approach that confined the parties to make a choice of the governing law that was
unconnected to the contract. The parties were permitted to make a choiceof law even if there
was no geographical nexus between the obligation in the contract and the chosen law. Thus,
it implied that the parties became more autonomous in their choice of law. The court also
extended the autonomy by observing that the parties were free to choose different laws to
govern different parts of the contract. It also observed that the only limitation to the parties’
freedom to choose a governing law for their international commercial contract would be that
such choice was not bonafide or was opposed to public policy. Similarly, in Modi
Entertainment Network and Another v WSG Cricket Pte Ltd, the Supreme Court againclarified

6. that Indian private international commercial law permits the choice of any legal systemeven
if the legal system does not have any connection with the contractual obligation in question.
However, in thesejudgments, there stillpersists anambiguity about the meaning of ‘bonafide
and opposed to public policy’ since there can be wide parameters for adjudicating these
requirements. Thus, it has been argued that although the Indian private international
commercial law corresponds with the globalbest practices on the subject, stillthe ambiguities
regarding these terms makes it unpredictable and uncertain for the courts to apply these
principles efficiently.
2. Until the middle of the 19th century, the courts applied the law of the place where the
contract was made, the lex loci contractus, to decide whether the given contract was valid.
Unfortunately, it was open to abuseand at the sametime produced difficulties in cases where
the contract required each party to perform its obligations in a different country. As a result,
English common law developed a test to determine which system of private law would be
used to construe the contract. The test determined what is known the proper law of the
contract. Therefore, the Doctrine of Proper Law emerged. Until 1991 the flexible rule in
England which governed most issues was known as the ‘proper law of contract’. This rule was
the system of law by reference to which a contract was made. In the absence of choice the
parties had the power to select the law which was to govern their contract. This is the
principle of party autonomy, where there is an express selection of the proper law. In a
Conflicts lawsuit, one or more state laws will be relevant to the decision-making process. In
cases where the laws have substantive differences, the choice of which law to apply will
produce a different judgment. Therefore, each state produces a set of rules to guide the
choice of law. One of the most significant rules which the law applied in any given situation
was the proper law. This is the law which seems to have the closest and most real connection
to the facts of the case.
The choice between conflicting rules of more than one jurisdictions is developed in four areas
of law. The capacity of the parties to a contract, the availability and nature of the remedy, the
formal validity and the substansive validity. The determination of the validity of a contract
has been dealt by three principal rules. The lex loci contractus, the lex loci solutionis and the

7. party autonomy rule. The validity is determined by the law of the place where the contact
was made. Therefore, in such a case the key factor is the place. A commentator, Adkinds,
referred to the principle of lex loci contractus which was defined by the courts to be the
presumed content of the parties to contract with reference to local law. Hence, the rule has
been examined in several early cases. Generally, it was presented as an unuseful rule. [1] The
doctrine of the lex loci contractus was qualified in the middle of the eighteenth century.
However, the decisions in Chatenay [2] and Lloyd [3] reduced the importance of the lex loci
contractus and the doctrine was finally displaced. It is doughttful whether this doctrine even
served as a presumption in contemporary law.
To begin with, the proper law of the contract was the main system of law applied to decide
the validity of most aspects to the contract including its formation, validity, interpretation,
and performance. However, this did not denied the power of the parties to agree that
different aspects of the contract shallbe governed by different systems of law. In the absence
of such express terms the court had not divided the proper law unless under certain
circumstances. Hence, very important was the general rule of the lex fori which applied the
provisions of the proper law as it is when the contract is to be performed.
Taking an overview of the proper law of contract, parties were free to enter into whatever
agreement for whatever choice of law they liked. As a result, this injected an element of
certainty. Express choice and implied choice were valid and conclusive. However, there was
an issue when the courts had to construe a contract to ascertain choice. In situations where
there was no choice made, then the proper law of contract was emerging. Originally, the
proper law of contract was to ascertain the presumed intention of the parties by construing
the contract. However, this led to confusion. Therefore, in Boissevain v Weil [5] the goal was
to identify the system of law with which the transaction has its closest connection or most
real connection.
Historically, the expression “the proper law” was peculiar to the law of England. Literally, the
term simply denoted the appropriate legal systemwithout answering the important question
of how you find that system or how you identify it. The conflict of laws was concerned
whether that system can be more closely defined and whether they could eliminate general
phrases and find a specific formula. However, one comes to the result to the conflict of laws

8. where the term “the proper law” is most generally known and is given the widest and most
significant scope. It is in this context that in the early part of the century Westlake defined it
as the law of the country with which the contract has its most real connection. [6] In 1940,
John Morris, embraced and adopted this formula, when together with Cheshire he published
an article entitled The Proper Law of the Contract. [7] Mainly, he devoted to a criticismof Vita
Food Products Inc. v. Unus Shipping Co. Ltd [8] , a decision rendered by Lord Wright on behalf
of a Judicial Committee including Lords Atkin, Russell of Killowen, Macmillan and Porter.
By 1950, it was generally established in England by decisions of the House of Lords as well as
in France, Germany and Switzerland, and other countries, that an express choice of law by
parties was valid and conclusive. The same applied to an implied choice, affected through a
jurisdiction clause. However, the problem was whether in the absence of an express or
implied choice the presumed intention of the parties had to be ascertained by construing the
contract. In 1949, Lord Denning stated that the question whether the contract to repay is
valid depends on the proper law of the contract, and that depends not so much on the place
where it was made or on the intention of the parties as on the place with which it has the
most substantial connection. [9] In 1951, Viscount Simonds accepted this formulation.
In 1961, Lord Denning introduced a limitation in that and he seemed to suggest a merger
between implied choice and proper law. Lord Denning said that in the absence of an express
clause the test is simply with what country the transaction has the closest and most real
connection [10] and the point became even more confused. The issue was solved by Lord
Diplock in Amin Rasheed Shipping Corp. v Kuwait Insurance Co. [11] , where he described the
proper law of a contract as the substantive law of the country which the parties have chosen
as that by which their mutually legally enforceable rights are to be ascertained.
However, it is quite clear that John Morris’s distinction between express selection, implied
selection, the closest and most real connection, is correct if the last-mentioned solution
means that in the words of Lord Wright, the court has to impute an intention or to determine
for the parties what is the proper law which, as just and reasonable persons, they ought to or
would have intended if they had thought about the question when they made the contract.
[13] As a result, England had an embracing subjective formula which, broadly, was covering

9. almost all questions arising in the life of a contract. Therefore, we must not be misled into
thinking that the acceptance of a form of words solves all problems.
Furthermore, one of the most controversial issues in the area of English contract law was the
intention of the parties which was identified by the courts. English law in order to identify an
action as a contact looks at the intention of the parties. This is the forst element of the
formation of the contracts that it is examined by the courts. However, the most difficult
aspect of identifying the intention of the parties……………………………………… is a term used to
describe the idea of intention as commonly understood – the internal motivation of an
individual. It is simple common sense that this will be very difficult to prove to the standard
expected by a court of law: in matters relating to contract (and indeed any context outside of
the criminal law) this standard of proof is the balance of probablities, or whether one can be
more than 50% sure (on balance) that the evidence produced proves the conclusions that are
being sought to be drawn from it. Clearly it is very difficult to be this sure of the internal
psychological workings of another human being.By contrast, the notion of objective intention
is used to describe the idea that one can infer the parties’ intentions from their actions. In
other words, the question that is asked to determine objective intention is not “what was
going on inside the heads of the parties” but “what a reasonable, ordinary observer of their
behaviour would think their intention was”. The position of this hypothetical external
observer is, in effect, that of a court trying to determine the intentions of the parties and it is
therefore this objective conception of intention which is used as the legal test. A case which
illustrates this ideanicely is that of Smith v. Hughes. This is a caseof the ninentheenth century
where the objective intention applied.
Moreover, the case of Amin Rasheed expressed the two views which determine the proper
law of a contract. Those views are the subjective one and the objective one. The subjectivist
view is part of Lord Diplock’s view in which he said that English conflict rules accord to the
parties to a contract awide liberty to choose the lawby which their contract is to be governed.
[15] From this, it would appear that a subjectivist view prevails where the parties have
expressly chosen the law to govern their agreement, or, at least, the proper law can be
inferred or implied. On the other hand, the objectivist view was expressed by Lord
Wilberforce in the same case, where in the absence of a choice of law he said that it is

10. necessary to seek the system of law with which the contract has its closest and most real
connection. It is clear from the above that neither view is generally applicable.
In order to ascertain the proper law, first we need to take the subjectivist approach, where
the parties have expressly chosen a law to govern their agreement. In Vita Food Products Inc.
v Unus Shipping Co. Ltd., Lord Wright said that provided the intention expressed is bona fide
and legal, and provided there is no reason for avoiding the choice on grounds of public policy’
the intention of the parties as to the choice of law prevails. [17] Three points with respect to
the parties’ choice of law are. First, they can choose a law which has no obvious connection
with the contract and still be bona fide and legal. Second, if the choice of law was made for
the specific purpose of avoiding the consequence of the illegality then it is not bona fide and
legal.Thirdly, there is no reported Englishcaseinwhich a choice of law clausehas been struck
down by the courts.
In common law the most well established area of choice of law is the contract choice of law.
The issue of whether the choice of law rules for contract should be codified was of high
concern. The codification could bring the advantage of accessibility to the law and an
opportunity to put all together to an instrument. On the other hand, the existence of the
danger of loss of flexibility it shouldn’t have been underestimated. Generally, the common
law choices of law rules have worked well. However, it is underlined that the three stages
followed in order to determine the proper laws of contract produce issues that need to be
considered.
However, when there is no express nor implied choice of law then the court has to impute an
intention or to determine for the parties the proper law which, as just and reasonable
persons, they ought to or would have intended if they had thought about the question when
they made the contract. [19] The factors which help the court determine the proper laws of
the contract are those with which the transaction had its closest and most real connection.
In the situation where the contract does not contain an express selection of law to be applied
to the contract, the court may take into consideration some other factors in order to
determine whether the parties have impliedly agreed the system of private law that would

11. apply to disputes. There are some situations which show implied choice by the parties. Those
can be the selection of jurisdiction of court of which proceedings would be brought,
arbitration clauses, references to regulations of a particular country, the currency in which
sums are to be paid under the contract or the form of the documents. Also,the languageused
in a contractual document give guidance as to whether the parties have impliedly agreed to
a system of law to govern the contract.
In the absence such express or implied agreements, English common law will determine the
proper law of the contract to be the system of private law which the transaction has the
closest and most real connection. This is an objective test to be ascertained by all the
circumstances of the case. Amongst the factors that a court will consider in determining the
systemof law that has the closest and most real connection are the place of the contract was
made, the place of performance of the obligations arising under the contract, the place of
incorporation of the incorporated entities to the contract, place where any security to taken,
and whether the contract is associated with another contract that does contain a choice of
law. That system of law is known as the lex contractus, namely the law used to resolve
substantive disputes between the parties in respect to the particular contract, and will apply
from the time that the contract was formed. In rare cases, it may be appropriate for a court
to order that more than one system of law applies to a contract, where the nature and type
of obligations are distinct and severable from the remainder of the obligations.
Concluding, at the emergence of the doctrine of the proper law of contract it became
apparent that there was recognition of party autonomy and a selection of proper law.
However, it is important to say that neither Dicey’s subjective position nor Westlake’s
objective position prevailed absolutely. Thus, it is appropriate to mention that the law dealing
with determination of proper law of contract has borrowed from both positions. The
situations where the parties to a contract have expressly stipulated that a particular law is to
govern the contract that law is considered to be the proper law of the contract. In Vita this
was reaffirmed by the Privy Council. After an express choice of law by the parties the extent
to which the courts can give effect to this choice must be determined. Basically, it must be in
good faith and legal. Further, a situation may arise where the parties have not expressly
indicated a choice of law, In this situation it is highly possible for the parties to have made an
implied selection of law. However, in the event that the parties’ intention, express or implied

12. cannot be ascertained, the close and real connection test must be determined in order to
identify the proper law of the contract.