Private law 1-6 Flashcards
subject matter of private int law
- rules relating to jurisdiction of courts
- rules of choice of laws
- rule relating to recognition and enforcement of foriegn judgement and decrees
basis of PIL: doctrine of comity
doctrine of comity, the practice of nations recognizing and *respecting each other’s laws, judicial decisions, and legal principles *
out of mutual respect rather than obligation. It is not a legally binding principle but is based on goodwill and reciprocity. The idea is that countries should assist each other in enforcing laws and legal judgments to maintain international harmony.
unless doing so would be against its public policy, a jurisdiction must recognise and implement court judgments and decisions made in other jurisdictions.
**However, comity is
granted only when the foreign law or judgment does not violate the
public policy, fundamental rights, or sovereignty of the home
country. **
The three main aspects of Private International Law are:
1. Jurisdiction – which country’s courts have the authority to hear and decide a case
2. Choice of Law – which country’s legal system will be applied to resolve the issue
3. Recognition and Enforcement of Foreign Judgments –
whether a judgment obtained in one country will be accepted and enforced in another
BASIS OF PIL- convenience
The objective is to determine which legal system is best suited to handle a case efficiently while minimizing legal uncertainty and costs for the
parties involved.
taking into account factors such as:
- The location where a contract was made or performed
- The country where the parties reside or conduct business - The place where a legal issue, such as a tort or accident, occurred
- The legal system most familiar to the parties
BASIS OF PIL 3. Justice
he concept of justice in Private International Law is reflected in:
- The application of laws that are most relevant and fair to the circumstances of the case
- The protection of rights and interests of individuals and businesses involved in cross-border disputes
- The recognition of foreign judgments that have been obtained through due process and fairness
- The prevention of forum shopping, where parties attempt to take advantage of more favorable laws in a particular jurisdiction
Justice also plays a role in personal matters such as marriage, divorce, and child custody, where courts strive to ensure that individuals’ rights are protected regardless of nationality or
residence.
Methods of Unification and benefits
Unification of Private International Law refers to efforts made at the international level to create consistent legal rules that can be applied across different countries
1. Bilateral and Multilateral Treaties
2. Model Laws -international organisations draft model laws that countries can adopt or modify to suit their legal systems. -
Example: The United Nations Commission on International Trade Law (UNCITRAL) has created model laws for international arbitration and e-commerce.
3. Regional Legal Frameworks
4. Judicial Cooperation and Harmonization- Courts in different countries cooperate to recognise and enforce
each other’s judgments and legal principles.
Benefits of Unification
- LEgal certainty and predictability
- Reduction of legal conflicts
- efficiency in proceedings
- Recognition and Enforcement of Judgments
- Facilitation of International Trade and Investment
BASIS OF JURISDICTION –
In PIL disputes any court which assumes jurisdiction over a case has to first decide the basic
question. jurisdiction
1. Domicile or Residence of the Parties - Many legal systems give jurisdiction to the courts of the country where the defendant resides or is domiciled.
2. Nationality of the Parties
3. Place Where the Cause of Action Arose (Lex Loci Delicti or Lex Loci Contractus)
4. Place of Performance of the Contract’
5. Choice of Forum Clause (Jurisdiction Agreement) if the contract already outlines a jurisdiction
6. Consent of the Parties (Prorogation of Jurisdiction)
7. Exclusive vs. Non-Exclusive Jurisdiction
8. Doctrine of Forum Non Conveniens - Even if a court has jurisdiction, it may refuse to hear a case if another country’s courts are better suited to handle it
10. Jurisdiction Over Property (In Rem Jurisdiction)
OGDEN CASE (Ogden vs. Ogden) –
In this case,** a French domiciled man and an English domiciled woman got married in London**,
The man was below the age of 25 years and at that time the French law required consent of the parents for marriage till their child attains the age of 25 years. The French man’s parents
therefore got the marriage annulled by the French Courts and subsequently he got remarried.
Upon knowing this, the English woman/wife moved the English Courts for a decree of nullity of her marriage on the ground of husband’s desertion and adultery. The said Petition was dismissed for want of jurisdiction. Nonetheless, she remarried in 1906 to an English man, Mr. William Ogden.
Mr. Ogden found out about her previous marriage and filed a suit for a decree of nullity of his
marriage on the ground of bigamy by his wife. In this 2nd proceeding, the court passed a decree annulling the 2nd marriage and refused to recognize the decision of the French Court. Therefore,
parental consent was characterized as a matter of formalities and procedures governed by lex loci celebrationis.
the result is the English woman remained married in eyes of English law but
unmarried in the eyes of French Law
the law of the place of celebration”. It’s a legal principle that determines the validity of contracts and marriages based on the laws of the place where they were made.
IN RE COHN (1945) (OPPENHEIMER CASE) –
Mrs. Cohn and Mrs. Oppenheimer were mother and daughter domiciled in Germany but
residing in England.
During an air raid in London, both of them died and the question was who
died first or who survived the other. Oppenheimer was entitled to the property under Mrs. Cohn’s will.
The German and English laws differed as to the presumption of death.
English law, the presumption is the younger person survives the older, whilst in
German law the presumption is that they died simultaneously.
It was argued that since this is a matter of
proof,it should be determined by the lex fori, i.e., the English Courts. However, Justice Uthwatt
said that the law of the domicile will apply and not the English law and therefore, Mrs. Cohn’s relatives will be entitled to her estate.
lex fori= where the case is beign heard
MALTESE MARRIAGE CASE (Anton vs. Batolo 1891)
In this case, a widow claimed a share in her husband’s property situated in Algeria. The husband also died domiciled in Algeria. However, both of them got married in Malta and were domiciled in Malta at the time of their marriage.
under French Private International law, successionof land lex situs (where the property is situated)and
the matrimonial right was governed by matrimonial domicile (at the time of marriage reside).
Under French law, as it existed then, wife was not entitled to any share in the husband’s property.
But under the Maltese law, she was entitled to the share and also right of survivorship in the assets left by her husband.
The French Court held that the Maltese law
will apply and therefore, the widow’s claim was upheld. The Court therefore, laid emphasis on
matrimonial property over succession
LEX FORI and LEX CAUSAE
STAGE 1= Lex fori is essentially, required to decide
procedural questions. For example – the prescribed period in the law of limitation
STAGE 2= lex causae refers to the substantive law required to decide the dispute. Generally, this law
is of a foreign jurisdiction/country and is not the same as lex fori.
Statutory Provisions Relating to Jurisdiction in India
- Section 9 – Courts to Try All Civil Suits Unless Barred - A civil court has jurisdiction to try all suits unless they are expressly barred by law.
- Section 15 – Suits to be Filed in the Lowest Competent Court - A suit must be instituted in the lowest court that has jurisdiction
over the matter. - Section 16 – Suits Relating to Immovable Property - A suit related to immovable property should be filed in the court
within whose territorial limits the property is located. - Section 19 – Suits for Compensation for Wrongs to Person or
Movable Property - In cases of personal injury or damage to movable property, the
suit can be filed where the wrong was committed or where the defendant resides. - Section 20 – Other Cases Where Defendant Resides or
Conducts Business - If the defendant resides, carries on business, or works for gain in
a particular place, a suit may be instituted in the court of that place.
Successive Steps to be taken as per English Law
● Step1:Jurisdiction
○ Court must determine whether it has jurisdiction or not
● Step2: Classification/Characterization of LEX CAUSAE
○ The next step is to classify the cause of action and place it in the appropriate legal .
○ The court has to check the cause of action comes within the of contract/torts/cause etc.
○ This is an essential step unless the classification is made, it will not be to apply the
rule of Private International Law for the choice of law
● Step3:Selection of Lex Causae
○ Next is to choose the appropriate foreign law or to choose the lex causae.
○ Selection is indicated by choice of law rule of Private International Law
● Step4: Application of Lex Causae
○ Laststepistodecide the case by applying the chosen law.
○ Issuescanarise with doctrine of renvo
Against Whomcase can not be filled (Immunity)
Generally
○ Foreign state, its head and its department
○ Persons entitled to diplomatic immunity
○ International Organizations
● Sovereignty immunity is not given to those States which is not recognized will not get the
immunity
DIPLOMATIC IMMUNITY:
according to vienna conventions, A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative
jurisdiction, except
1. a real action relating to pvt immovable property not on behalf of state
2. action relating to succession, as the legatee, heir, executor as a private person
3. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions
Renvoi
- sending back or return unopened- whole imaginary process of transfer of case into the
nal decision making forum is called renvoi. The idea: doctrine is to prevent forum shopping and the same law is applied to achieve the same outcome regardless of where the case is actually dealt with.
When reference is from country A to county B then back to Country A
basically the judge sends it to a foreign country but that country sends it back and hence the judge applies his own country ke laws
APPLIED IN:
Spain, Italy, and Luxemburg
Forgo Case
Forgo, a bavarian national, died interstate in france, where he had lived since the age of 5. Question before the french court was whether his movables in frrance be distributed as per internal laws of france or bavarian.
■ Under Bavarian law the collateral relatives were entitled to succeed, but under the french law the property will be passed to the French government to exclusive to collateralAccording to French PIL,
the French Court referred the matter to the Bavarian Court based on lex patriae (nationality).
However, as per Bavarian PIL, this matter was governed by lex domicilii, so the Bavarian Court
referred the matter back to the French Court. (remission). The French court applied its internal
law and forego being an illegitimate child, his relatives/ successors were deprived of property.
single renvoi
DOUBLE RENVOI
English doctrine of renvoi.
○ In this scenario, the forum court considers itself to be sitting as the foreign court and will decide the matter as the foreign court would.
double renvoi refers to a situation whereby the forum court attempts to resolve an issue by closely replicating how a foreign court would operate, and decide on the matter on hand the way a foreign court would, in order to reduce the possibilities of remissions
Collier v. Revaz “the court sitting here
(U.K.) decides from the person’s skilled in that law, and decides as it would if sitting in Belgium.”
Re Annesley Case:
■ An English woman was domiciled in France for 58 years at the time of her death as per English law. But as per french law, she was domiciled in England as she never received the authorisation required by french law at the time.
■ Before her death, she made a will, where the will was valid as per English law, but it was not valid as per the French law because she did not leave 2/3rd of her estate to the youngsters.
■ French law states that 2/3rd of the property goes to their heirs.
■ English court held that the validity of the disposition should be determined by french law- reference to law of a country=reference to FRENCH country’s internal law.
APPLICATION PROCESS:
1. English court applies renvoi so -
thinks as french judge.
French law applies lex patrea- considering she was english national- applies english law,
so goes back to what english law would do-
which is domicili law- so then RENVOI is accepted by france= and thus french internal law applied- and WILL IS INVALID
double renvoi
Difficulty with renvoi
constant remission= circulus inextricabulus- vicious circle
The theory has been criticized on the following grounds:
1. If the foreign country also adopts renvoi then no solution is possible as it will lead to a
circulus inextricabilis which Cheshire calls as “an international game of lawn tennis”.
2. It is very difficult to interpret the law of a third country especially when there are no clear
pronouncements on the subject.
3. The doctrine goes against the aim of PIL which is to bring uniformity of laws
CLASSIFICATION BASED ON DUAL CLASSIFICATION BY CHESHIRE
It leads to a vicious circle. It also does not explain why one foreign rule will apply over the
other. Therefore, cheshire proposes theory of two-fold classification –
1. Primary characterization based on lex fori
2. Secondary characterization based on lex causae
based on the allocation of factual situations to the correct legal
category, while secondary characterization is an application of the proper law.
3 meanings of LEX CAUSAE
In Private International Law (Conflict of Laws), Lex Causae refers to the law applicable to a dispute after the forum court has determined which jurisdiction’s legal system should govern the issue. It has three key meanings:
1. Lex Causae as the Substantive Law of the Chosen Jurisdiction
- It refers to the substantive legal rules of the foreign legal system that govern the dispute (e.g., contract law, tort law, property law).
- Example: If an Indian court decides that French law applies to a contract dispute, then French contract law (not Indian law) will determine the case.
2. Lex Causae as Including the Foreign Conflict of Laws Rules (Renvoi)
- In some cases, Lex Causae may include the foreign jurisdiction’s conflict-of-laws rules, which might refer the case back to the law of another country (Renvoi Doctrine).
-Example: If an Indian court applies French law to an inheritance
dispute, it must decide whether to consider only French inheritance rules or also French conflict of laws rules.
**3. Lex Causae as Determined by Conflict of Laws Rules **
- IThis meaning arises when courts apply their own rules to decide
which country’s law governs the case. - Example: If an Indian court follows Indian conflict of laws rules
to decide whether French or Indian law applies to a marriage
dispute, the chosen law becomes the lex causae. .
Thus, Lex Causae determines the substantive law that applies to a dispute, but its scope depends on whether renvoi or procedural aspects are considered.
Incidental Question (Preliminary Issue)
For example: - A case regarding inheritance may require the court to determine whether the deceased’s marriage was valid before deciding on the distribution of assets. If the marriage itself involves a foreign element (e.g., marriage in France but dispute in India), the validity of the marriage becomes an incidental question.
Example:
A French citizen dies in India, leaving property to an adopted child.
The Indian court may first need to determine whether the adoption
was valid under French law before applying Indian inheritance laws.
- Time Factor in Private International Law
The time factor is significant in determining which version of a law applies when laws change over time. Courts must decide whether to apply the law that was in force:
- At the time when the legal relationship was formed
(retroactive
application).
- At the time when the case is being decided (prospective
application).
Different countries follow different approaches:
- Lex fori approach: The court applies the Law in force at the time of the trial.
- Vested rights doctrine: The law that was in force at the time the legal relationship was created applies.
- Modern approach: Courts** balance fairness and practicality** to decide which law should apply.
collier v rivas
- british subject died domiciled in belgium with will valid under english law but invalid in belgian law assets in england
- so here,
- foriegn element= domiciled in belgium
- jurisdiction= will+ nationality in ENGLAND
- classification of cause of action= testamentary will
- Selection of lex causae= Lex domicili
- Application of lex causae=
english judge hallucinates beign the belgian judge=
then “belgian judge” will apply lex patrae per PIL–> which is nationality law–> goes to english court–> which will then apply apply lex domicili–> goes BACK to belgium –> belgium DOESNT accept Double renvoi = so england internal laws apply
in Re ross-
British subject dies in ITALY- movable property in england with will leaving nothing to her son. Acc to italian law, son is entitled to share in property so is the case valid?
Foriegn element= Italian domicile
Jurisdicition= english court - assets in england
Classification of cause of action= will
Selection of lex causae= lex domicili
Application of lex causae -
1. bro pretends to be italian judge—> italian judge will find that per italian PIL- lex patrae applies–> goes back to english court–> finds that lex domicili applies and then when he is REFERRED BACK to italian law, ITALY reject this reference and reference not accepted so english law will apply per internal law and will was found to be valid
Elements of an incidental question
(1) a principal or main question governed by English
conflict rules by the law of country A; and
(2) a subsidiary or incidental question in the same case,
which could arise on its own and is governed by the law of country B.
Also (3) the application of the law of A must produce a result different from that which would follow from the application of
the law of B.
In only a very few cases has this situation arisen.
Schwebel v Ungar
** H1 and W were Jews domiciled in Hungary.** They both left Hungary for Israel but en route obtained a divorce in Italy. They both arrived in Israel where W acquired a domicile. She then went to Ontario and there married H2 who was domiciled in Ontario.
* Under **Ontario conflict rules W had capacity to marry H2 since her capacity to marry was governed by Israeli law at the time of the marriage. Since Israeli law recognised the Italian divorce, it regarded her as a single woman.
But by Ontario conflict rules that divorce was not recognised since at the time it was obtained the parties were still domiciled in Hungary,
whose courts had not granted it and did not recognise it**.
Therefore, in the eyes of the Ontario court W was still married to H1 and H2 under the law of his domicile, Ontario, had no capacity to marry her.
The court, applying Israeli law (governing the principal issue) and ignoring Ontario law
(governing the subsidiary issue) held the marriage valid.
WINANS v AG
domicile of oriign= USA
went to russian, employed by russian govt to build warships against england - contracts tubercolosis- is reccomended by doctors to stay in coastal city of brighton england, dies in england
never went back to usa.
If domiciled in England: His worldwide assets would be liable for English estate duty.
If domiciled in the United States: Only his assets situated within England would be subject to the duty.
Court held that he was only domiciled in england out of necessity and never intended to make that his place of domicile and so invokes the test proposed by** Wickens, V.C.,** which questions whether the individual would have, under a deliberate determination, chosen to make the new location their permanent home. HELD: NO
so domiciled in USA
Sankaran govindanan v Lakshmi bharati
left india to study in england and acquired british citizenship- had assets in india and passed instestate in england- dispute arose over succession
The Supreme Court examined the concept of domicile, noting that domicile is a combination of residence and the intention to reside permanently in a place. The Court observed that Dr. Krishnan, despite acquiring British citizenship, maintained ties with India and had expressed intentions to return. but his intentions to return were not substantiated and likely only stated intention to return to protect his indian property
So court decided not to apply english conflict of rules- because it would probably refer case back to india and decided to apply his domicili as english and governed assets by english internal law.
PROOF OF FOREIGN LAW
When a legal dispute involves a law from another country, the court handling the case must determine what that foreign law says and how it applies. This process is called proof of foreign law. Instead, they require evidence and
expert testimony to understand and apply foreign legal principles
correctly.
1. Why courts need proof of foreign law
2. Who is responsible for proving foreign law
3. How foreign law is proven in court
4. The challenges involved in proving foreign law
5. What happens if foreign law cannot be proven
How Foreign Law is Proven in Court
- Expert testimony Courts often rely on legal experts—usually lawyers, professors, or
judges from the relevant country—to explain the foreign law. - Foreign legal documents - These must often be
officially translated and authenticated. - Official certificates
- Judicial notice
- International treaties and conventions
CHALLENGES
1. - Translation issues
2. Conflicting expert opinions
3. Changing laws
4. Lack of access
5. Differences in legal systems : A judge trained in common law
may struggle to understand concepts from a civil law or religious
law system, making expert explanations crucial.
What Happens if Foreign Law Cannot Be Proven
- Applying the law of the forum (lex fori)
If foreign law cannot be determined, some courts apply their own domestic law instead - Presuming foreign law is similar to domestic law- This approach is taken when the legal principles in question are likely to be universal, such as basic contract law concepts.
- Dismissing the case or ruling against the party that failed to
prove foreign law
B. GROUNDS FOR EXCLUSION OF FOREIGN LAW
- Public Policy = Courts will not apply a foreign law if it goes against the fundamental moral, social, or legalprinciples of the forum country.
Ex= Recognition of polygamous marriages
Foreign laws permitting child labor or forced labor. - Revenue Laws
A long-established principle in international private law is that
courts do not enforce the tax or revenue laws of another country.
This is based on the idea that taxation is a matter of national
sovereignty, and one country should not assist another in collecting its taxes - Penal Laws
Another well-established rule in international private law is that
courts do not enforce the penal laws of another country. Penal laws refer to laws that impose punishment for crimes, including fines, imprisonment, and other penalties.
