2. NATURE AND SCOPE OF PRIVATE
INTERNATIONAL LAW
The usual cases that come for trial before Indian courts are those in
which cause of action arises in India, whose parties are Indians or
domiciled in India and the other elements of which are also of
domestic character. Occasionally, Indian courts are also seized of
cases having foreign elements, i.e. one or the other element of the suits
is connected with some foreign country.
For e.g. (i) an Indian court is called upon to try the question of
succession to the property of a person who died in India (domiciled in
India or abroad), or who has left movable and immovable properties
both in India and abroad, or (ii) to decide a petition of divorce
presented by an Indian domiciled in India who had married an English
woman in England, or (iii) to try a suit for breach of contract filed by a
New York domiciled plaintiff against a defendant domiciled in
England in respect of a defendant domiciled in England in respect of a
contract into in Paris for the supply of goods in India. It is evident that
all these cases have some foreign element.
N.B: Domicile: the country that a person treats as their permanent home,
or lives in and has a substantial connection with.
3. Sometimes, question arises in municipal court, about
recognition of a foreign judgement or enforcement of a
foreign decree.
For e.g. an Indian wife files a petition for maintenance
under Sec. 125 Cr.PC in an Indian court against her Indian
husband domiciled in New York. The husband takes the
plea that the marriage had already been dissolved by a
decree of a New York court and therefore the applicant’s
claim is not maintainable.
The question is whether the Indian court will recognize the
New York decree and give effect to it? In each such
instances the question before the court is whether an order
of the foreign court will be given effect to it in India, and if
given so, to what extent?
4. Thus in respect of cases having foreign element, a
domestic court may be called upon to determine
the following three questions:
1. In what circumstances the court will assume
jurisdiction over cases having foreign elements?
2. If the court assumes such jurisdiction, then
whether it will determine the case entirely under
the Indian law, or will it apply the appropriate
foreign law?
3. In what circumstances it will recognize a foreign
judgement or when it will order the execution of a
foreign decree?
5. About the name of the subject:
The doctrine of sovereignty imposes no obligation on municipal
courts to apply any other law. But practically every country of the
world decided cases having foreign elements with reference to
concerned foreign law judgements. But there is no uniformity, that
in what circumstances and in which cases foreign law is to be
applied or foreign judgements are to be given recognition.
For the branch of law, where conflicting factors arise in relation
to which part of a nation’s law is to be applied in a case which
have issues concerned with two-nations law, scholars of England
have named it as “Private International Law” – commonly used in
the continent of Europe. Later, in United States, the name adopted
was “Conflict of Laws”. But both these names are not accurate for
this branch of law, even though both are commonly used; perhaps
the most appropriate name would have been “Choice of Law”, as it
more aptly describes what a court does in cases with a foreign
element.
6. Because International law is a law between states which
is generally not enforceable in domestic matters.
And conflict of laws – may arise within the same
country if different units or parts of the country follow
different systems of law.
Again, there is no conflict of laws in deciding cases
with a foreign element; the rules merely assist a court in
choosing which law is to be applied to a given dispute.
i.e. why both terms are said to be inaccurate, and are
commonly used.
7. Issues that arise in the Conflict of Laws:
The rules of conflict of laws are not wholly separate branch of
law. They come up in most cases where there is a foreign
element, whether the dispute relates to a contract, a tort, or the
validity of a marriage or a will.
The American Judge, Cardozo J, has described conflict of laws
as “one of the most baffling subjects of legal science”.
The rules in Conflict of Laws involves three main questions:
1. Does Indian courts have jurisdiction?
2. Is there a foreign judgement on the point, and if there is, is
it to be recognized and enforced?
3. Which system of law is to be chosen?
N.B: - Baffling: impossible to understand; perplexing
8. Though it is generally said that the court is
applying a foreign law, that is not, strictly, accurate;
it is giving effect to a right or claim as recognized
in a particular foreign system of law; what it is
enforcing is the Indian rule of Conflict of Laws
under which such a claim or right is to be
recognized and applied.
9. Here are some illustrations:
In most countries, procedural law issues are decided by
the Lex fori; no question of applying the rules of a foreign
law will arise if the issue that arises is categorised by our
court as purely procedural. Again in most countries, foreign
penal and tax laws are not given effect to; so a court will not
go into the question of choosing a system of law if it
categorises the issue as involving a penal or revenue issue,
if it does, it may refuse to go into the question whether the
act is criminal under a foreign law, or a tax is due under a
foreign law.
N.B:- Lex fori: law of the land or law of the country were case
is brought before.
10. NEED FOR RULES OF CONFLICT OF LAWS
If domestic laws in different countries or jurisdictions were
the same, there would be no need to have rules of Conflict
of Laws. And even if the domestic laws differed, if there is
uniformity in different conflict of laws rules, some
problems such as ‘renvoi’ would not arise.
Solutions to this includes:
1. To adopt uniform rules of domestic law in fields which
are likely to raise disputes involving a foreign element.
For e.g. (i) Hague Rules on Carriage of Goods by Sea
(ii) Warsaw Convention on Carriage by Air
(iii) UNIDROIT (International Institute for the
Unification of Private International Law )
11. 2. Countries to adopt international conventions.
A few international conventions adopted and enacted by India
are as follows:
(a)Carriage of Goods by Sea Act 1925
(b)Carriage by Air Act 1972
(c)Arbitration and conciliation Act 1996
(d)UNICITRAL model Law on Arbitration
(e)Several Maritime Conventions
Reasons for recognition and application of foreign laws
includes: to avoid in injustice, for convenience, to determine the
rights of the parties, and to promote comity of nations.
The importance of Conflict of Laws is likely to increase in
India, because of:
(1)Growth of international trade and commerce
(2) More Indians are settling abroad
(3)Conflict in personal laws, and so on.
The principle source of conflict of laws are, the decisions of
courts, and as there are relatively few decisions of Indian courts,
it becomes necessary to consider decisions of foreign courts. And
our courts must take into consideration, our notions of substantial
justice and public policy.
