1. PRIVATE INTERNATIONAL LAW
JAYITA MOULICK

2. NATURE & SCOPE
Private international law /conflict of laws is that part of law which comes into operation whenever the court is faced with a dispute that involves an foreign element.
Foreign element means any fact relevant to the issues involved in the proceedings which has a connection with a territorial unit other than the territorial unit where the court is dealing with the proceedings.
Examples of foreign element:
Parties maybe citizens of a foreign country or
Domiciled in a foreign country

3. Dispute may relate to a contract between an Indian & a party living abroad or
Suit may relate to a tort committed by an Indian outside India.
Q. What will be applicable if there is a breach of contract between 2 foreigners made in India & to be performed in India?
Forum shopping – the foundation behind private international law is to do justice. It would be unjust if a dispute with a French element is decided by an Indian court applying only Indian laws. The result would have been different had a French court decided it applying French laws. If Indian courts apply only Indian laws & French courts apply only French laws & they are different, it may tempt a party to file suit in that court where he expects a favorable result.

4. Rules under Private International Law:
Does the Indian court have jurisdiction?
Is there a foreign judgment on the point, if there is, is it to be recognized & applied?
Which system of law is to be chosen?
If the court does not have jurisdiction it will not go into the matter.
If there is a foreign judgement, it is for the Indian court to decide whether it should be recognized & enforced.
If it decides to recognize & enforce a foreign judgement, no question of Indian law choosing a system of law arises.

5. HISTORICAL DEVELOPMENT
All the conditions essential for the development of private international law was present during the Roman empire. Each province of the Roman empire had its own law. To the Roman citizens the Roman law applied & the provincial law applied to the citizens of the provinces.
Disputes between citizens of the provinces & Roman citizens were decided by the Roman administrators called praetors by interpreting both the Roman law & the laws & customs of the provinces. Yet the Corpus Juris Civilis failed to incorporate application of foreign law.
Jus gentium- law of nations

6. During the 16th & 17th century, England had a flourishing overseas trade that had reached the stage wherein it was said that the sun never sets in the British empire. Although the situation was ripe for the English courts to entertain suits having a foreign element yet they were reluctant to do so. In Robinson v. Bland, it was observed that the general rule is that where the contract is made & not the place were the action is brought is to be considered in enforcing the contract.

7. During the Mughal rule in India, it was the personal laws of the parties that applied.
The Special Marriage Act 1954 & the Indian Succession Act 1925 regulated the inter community matrimonial & succession matters. Thus in most potential areas of conflict of communal laws, the conflict was successfully avoided.
During the British rule, the rules of Indian private international law was basically based ob the English law.

8. CHOICE OF JURISDICTION
Forum non conveniens – forum/ court not agreeing, it’s a common law legal doctrine whereby courts may refuse to take jurisdiction over matters where there is more appropriate forum available to the parties. Eg., a question may arise in a situation where an Indian court has jurisdiction under CPC but will decline to exercise jurisdiction if parties have in their contract agreed that disputes will be resolved by arbitration or the suit must be filed in a foreign court.

9. In England, excepting enemy alien, anyone can file a suit be they British subjects or foreigners, body corporates incorporated inside or outside England.
Who is an enemy alien does not depend on the nationality of the person but by the place where he is residing or carries on business in a country at war with England. If an enemy alien had filed a suit before the outbreak of war, he cannot appeal as his right is suspended.
An alien enemy can be sued & can defend himself & can file an appeal if an adverse order has been passed against him.

10. In India Sec 83 of CPC regulates the position regarding jurisdiction for aliens. Alien friends & alien enemies residing in India with the permission of the Central Govt. can file suits like any Indian citizen but alien enemies residing in India without such permission or alien enemies residing outside cannot file a suit. An alien enemy can defend a suit. If the plaintiff wasn’t an enemy alien when the suit was instituted but subsequently became one, his suit is maintainable.

11. JURISDICTION UNDER THE BRUSSELS CONVENTION
Jurisdiction refers to the question as to whether a court will hear & determine an issue upon which its decision is sought.
The rules on jurisdiction under the Brussels Convention are:
The matter is within the scope of the Convention (civil & commercial matter)
Defendant is domiciled in an European Community State( ie Austria, Belgium, France, Germany, Ireland, Italy, Portugal, Spain, UK etc)

12. The six original members of the European Economic Community(Belgium, Germany, France, Italy, Luxembourg, Netherlands) entered into a Convention on Jurisdiction & Enforcement of Judgments in Civil & Commercial Matters in 1968 (Brussels Convention) which came into force in 1973 & Protocols on Interpretation in 1971 which came into force in 1971.
The purpose is to provide for free circulation of judgments throughout the community inspiring business confidence. To achieve this aim there had to harmonization of the law of jurisdiction throughout the Community.

13. 1st there was the United Kingdom, Danish & Irish Accession Convention of 1978
2ndly, Greek Accession Convention of 1982
3rdly, Spanish & Portuguese Accession Convention of 1989
4thly, Austrian, Finnish & Swedish Accession Convention of 1996
Contracting States are those countries of Europe that has parties to the Brussels Convention.

14. Referrals to the Court of Justice – the Protocols of 1971 authorizes the Court of Justice of the European Communities to give a rule on the interpretation of the Brussels Convention & 4 Accession Conventions on the matters being referred to them by the national court.
The protocol contains 2 limitations as to when a national court can approach the Court of Justice
Preliminary ruling procedure
Courts which can request a ruling from the Court of Justice

15. English courts have to follow the principles laid down by the Court of Justice in any relevant decision:
It must follow the techniques of interpretation employed by the Court of Justice, the meaning of a provision must be understood in the light of its purpose & not by its literal meaning.
Must follow the general principles of interpretation in relation to the Convention laid down by the Court of Justice.

16. 3. Must follow more specific principle where the Court of Justice has identified the purpose underlying a particular provision & has laid down policy considerations to be taken into account & whether a particular provision is to be interpreted widely or narrowly.
The 1st of these principles relates to the determination of whose system of law is to be applied in order to define the words & concepts in the Convention.
Where a community meaning is given the Court of Justice will define the concept, giving it an independent meaning. It then has a common meaning throughout the Contracting States.

17. A reference to national law means that the Court of Justice is not defining the matter, it is saying that the concept means what the court 1st understood from the matter under national law.
The objectives of the Convention require that it should be given an uniform application throughout the European Community so it is settled law that the Court of Justice will interpret the Brussels Convention autonomously.

18. The 2nd general principle relates to the method of deciding upon what the community meaning should be. The Court of Justice when defining concepts considers 2 factors:
1st it looks at the objectives & the scheme of the Convention. According to its preamble the ultimate objective of the Convention is to simplify the formalities on recognition & enforcement of judgments within the community.
2ndly with some concepts the Court of Justice has referred to the general principles which has its roots in

19. in the body of national laws
in the body of national laws. A Community meaning doesn’t ignore national laws & reference to bilateral treaties between Contracting States which have been made before the Convention may help in ascertaining shared principles.

20. The matter must be within the scope of the Convention – when does the Brussels Convention apply?
The preamble indicates that the Convention is only concerned with the Contracting States. It will not apply where a dispute involves no foreign element or where the foreign element involves another part of UK.
The Brussels Convention will not affect other conventions on jurisdiction/enforcement/recognition which Contracting States have in the past or will in the future enter into.
The convention doesn’t apply in proceedings in Contracting States concerning recognition/enforcement of judgments given in non-Contracting States.

21. Civil & commercial matters - the Convention shall apply only in civil or commercial matters. No definition is given of civil & commercial matters, although Art. 1 says that it doesn’t include “revenue, customs or administrative matters”.
The following are excluded from the Convention:
Status/legal capacity of natural persons, rights in property arising out of matrimonial relationship, will & succession.
Bankruptcy, proceedings relating to winding up of insolvent companies.
arbitration

22. Whether the defendant is domiciled in a Contracting State:
Where the defendant is domiciled in a Contracting State the bases of jurisdiction under the Convention will apply
Where the defendant is not domiciled in a Contracting State, the traditional rules of jurisdiction of the court will apply
There are exceptions relating to bases of jurisdiction under Art. 16 of the Convention

23. Brussels Convention Title II – Jurisdiction
Where the defendant is domiciled in a Contracting State:
Art. 2 in Sec. 1 states that a defendant domiciled in a Contracting State is subject to the jurisdiction of the courts of that state.
If the defendant is to be sued in the courts of the Contracting State other than that of his domicile, Art. 3 provides that this can be done only by following rules in Sec. 2 to 6. this prevents national courts from using their traditional rules on jurisdiction against a defendant who is domiciled in a Contracting State.

24. Where the defendant is not domiciled in a Contracting State:
Art. 4 states that jurisdiction in the courts of each Contracting State shall subject to Art. 16, be determined by the law of that state. Eg an Englishman wants to sue a Californian domiciliary, in England, he would have to do so under the traditional English rules of jurisdiction.

25. Sec 2 – 6 (continuation)
Sec Special Jurisdiction
Art. 5 – a person domiciled in a Contracting State may be sued in another Contracting State:
In matters relating to a contract, in the courts for the place of performance of the obligation in question
In matters relating to maintenance in the courts for the place where the maintenance creditor is domiciled
In matters relating to tort, in the courts for the place where the harmful event occurred
Dispute arising out of operation of branch or agency, in the courts for the place in which the branch or agency is situated.

26. Trustee or beneficiary of a trust, in the courts of the Contracting State in which the trust is domiciled.
Art. 6- a person domiciled in a Contracting State may also be sued :
Where he is one of a number of defendants, in the courts for the place where any one of them is domiciled
As a third party in an action on a warranty/guarantee in the court which took hold of the original proceedings

27. On a counterclaim arising from the same contract on which the original claim was based, in the court in which the original claim is pending
Sec. 3 – Jurisdiction in matters relating to insurance
Art. 7- in matters relating to insurance, jurisdiction shall be determined by this Section.
Art. 8 – an insurer domiciled in a Contracting State maybe sued
In the courts of the States where he is domiciled, or

28. In another Contracting State, in the courts for the place where the policy-holder is domiciled, or
If he is a co-insurer, in the courts of a Contracting State in which proceedings are brought against the leading insurer.
Art. 9 – in respect of liability insurance/insurance of immovable property, the insurer may be sued in the courts for the place where the harmful event occurred.

29. Sec. 4 – Jurisdiction over consumer contracts
Art. 13
A contract for the sale of goods on instalment credit terms or
A contract for a loan repayable by instalment or for any form of credit, made to finance the sale of goods or
Any other contract for the supply of goods or a contract for the supply of services &
In the State of the consumer’s domicile the conclusion of the contract was preceded by a specific invitation addressed to him & the consumer took in that State the necessary steps for the conclusion of the contract.

30. Where a consumer enters into a contract with a party who is not domiciled in a Contracting State but has a branch or agency in one of the Contracting State, that party shall, in disputes arising out of the operations of the branch or agency, be deemed to be domiciled in that State.
Art. 14 – A consumer may bring proceedings against the other party to a contract either in the courts of the Contracting State in which that party is domiciled or in the courts of the Contracting State in which he himself is domiciled.

31. Proceedings maybe brought against a consumer by the other party to the contract only in the courts of the Contracting State in which the consumer is domiciled.
Sec. 5 – Exclusive jurisdiction
Art. 16- the following courts shall have exclusive jurisdiction regardless of domicile:
In proceedings which have as their object rights in rem in immovable property, the courts of the Contracting State in which the property is situated.

32. In proceedings which have as their object the validity of the constitution, nullity or dissolution of companies/other legal persons/associations of legal or natural persons, the courts of the Constructing State in which the company/legal person/association has its seat.
Sec. 6 – Prorogation of jurisdiction
Art. 17 – If the parties, one or more of whom is domiciled in a Contracting State, have agreed in writing that a court/courts of a Contracting State are to have jurisdiction to settle any dispute which have/may arise in connection with a particular legal relationship, that court/courts shall have exclusive jurisdiction.

33. Title III – Recognition & Enforcement
Art. 25 – for the purpose of the Brussels Convention, “judgment” means any judgment given by a court of a Contracting State.
Sec. 1 – Recognition
Art. 26
A judgment given in a Contracting State shall be recognized in the other Contracting States without any special procedures being required.
Any interested party who raises the recognition of a judgment as the principal issue in a dispute, may as per the procedures provided in Sec. 2 & 3 of this Title, apply for a decision that a judgment be recognized.

34. Art. 27 – a judgment shall not be recognized:
If such recognition is contrary to public policy in the State in which recognition is sought
Where it was given in default of appearance, if the defendant was not duly served with the document which instituted the proceedings
If the court of the State in which the judgment was given, in order to arrive at its judgment, has decided a preliminary question concerning the status/legal capacity of natural persons, rights in property arising out of matrimonial relationship, wills/ succession in a way that conflicts with a rule of private international law of the State in which the recognition is sought.

35. Section 2 – Enforcement
Art. 31 – a judgment given in a Contracting State & enforceable in that State shall be enforced in another Contracting State when, on the application of any interested party, the order for its enforcement has been issued there.
Sec. 3
Art. 46 – a party seeking recognition/enforcement of a judgment shall produce:
A copy of the judgment which establishes its authenticity

36. In case of a judgment given in default, the original/certified copy of the document which establishes that the party in default was served with the document instituting the proceedings.

37. CHOICE OF LAW:DOCTRINE OF RENVOI
Renvoi is a French word meaning send back/ return unopened. There are 2 types of renvoi: single & double
Single renvoi is called remission in English where legal systems of two countries are involved but if three countries legal systems are involved then its called transmission.
Once it is decided that a court has jurisdiction & what choice of law are applicable, the judge will apply the chosen law chosen if the chose law is English law, the judge is required to give effect to English internal law.eg., where a person dies intestate domiciled in England, here his property will be distributed by following the English internal laws relating to property. There is no requirement to give regard to private international law.

38. But if the application of law is that of a foreign country the situation becomes complex. The difficulty is to determine what is meant by “applicable law”?eg., X, a British subject, dies interstate, domiciled in Italy & an English court is required to decided how his movable property in England are to be distributed?
According to the English law for choice of law regarding intestate succession to movable property is governed by the law of domicile of the person concerned ie., in this case Italian law as being the law of X’s domicile at the time of death. But according to the Italian law it must be referred to the law of England as being the law of his nationality.

39. Now the question is what is the meaning of Italian law
Now the question is what is the meaning of Italian law? Does it mean Italian internal law regulating an intestate’s property or does it mean the whole of Italian law including private international law as recognized by Italy.
If the former is correct, a further difficulty is caused by the difference between English & Italian laws;
& if we refer to the 2nd meaning ie Italian private international law we find the issue referred back to English law.
The question is whether we are to ignore the divergent Italian law or to accept the reference back that it make to England? If we accept the reference back, are we stop finally at that point & to distribute X’s property according to the English internal laws?

40. Continuing with the eg.,
When such a situation is faced, owing to the difference in the private international laws of the two countries, there are 3 possible solution:
Take the “law of Italy” to mean the internal laws of Italy; or
Decide the case on the assumption that the doctrine of single renvoi is recognized by English law; or
Take the “law of Italy” to mean the law which an Italian judge would administer if he were faced with the matter ie the doctrine of double renvoi.

41. Apply internal laws only- the 1st solution which is generally correct is to read the expression “law of a country” as meaning only the internal laws of that country. If for eg., a man voluntarily abandons England & acquires a domicile in Italy where he permanently resides until his death, the natural inference is that he willingly submits himself to the internal law of that country where he has taken domicile.

42. Doctrine of single renvoi- the 2nd solution is apply the doctrine of single renvoi. For eg., if a judge in country A as per his country’s law has to refer to the law of country B, but the law of country B refers back such a case to the law of country A, then the judge in A must apply the internal laws of country A. For eg., X, a British national, dies intestate in Italy & an English court is required to decide how his movables in England are to be distributed. The English court is directed by its own private international law to refer this question of distribution to Italian law as being the law of the deceased’s domicile. So when it refers to the

43. Italian law on the area of distribution of movable property, the English court finds that the Italian law prefers the law of the deceased’s nationality & not of his domicile, & if for instance an Italian court had been hearing the matter in the first instance it would have resorted to the law of England. Thus the English court find itself referred back to English law as because it is the law of X’s nationality. Thus there is a renvoi/remission to English law.
So when the court accepts this remission & distributes the property as per English law, it would be true to say that the doctrine of renvoi is a part of English law & the Italian law has been allowed, although not to give a direct solution

44. ````````````````````````````````````````
to the problem but to indicate as to what legal system shall furnish the final solution.
Forgo’s case – Forgo, a Bavarian, died intestate in France, where he had lived since the age of 5yrs. The question before the French court was whether his movable property in France should be distributed according to the internal law of France or Bavaria. Collateral relatives were entitles to succeed by Bavarian law, but under French law the property passed to the French govt., & not to the collaterals. French private international law referred the matter to Bavarian law but Bavarian private international law referred it to French law. So the court of France accepted the remission & applied the succession law of France.

45. Doctrine of double/total renvoi/foreign court theory- this solution demands that an English judge, who is required by his own law to the legal system of a foreign country, must apply whatever the court in that foreign country would apply if for instance it were hearing the case. Eg.,[an English judge is imagining how a Belgian judge is going to decide the following matter] a British national dies domiciled in Belgium, leaving assets in England. A Belgian judge dealing with this matter would be required by the Belgian private international law to refer to the English law but then he would find that the case is referred back to him by the English law.

46. Now the Belgian judge might accept the remission & apply own internal laws of Belgium or he might reject the remission & apply the English law. What ever the Belgian judge would do would determine the decision of the English judge.
The English judge also has to see whether the doctrine of single renvoi is recognized by the particular foreign country’s law to which he is referred. For instance this doctrine of single renvoi is repudiated in Italy but acceptable in France. So if the issue in England court is about the validity of a will made by a British subject

47. domiciled in Italy, the English judge will reason as follows;
An Italian judge would refer the matter to English law. As being the national law of the person concerned. But the English law remits the question back to Italian law as being the law of his domicile. The Italian law doesn’t accept this remission, as it repudiates single renvoi. Therefore an Italian judge would apply English internal law. [the English judge will do the same ie., apply English law as he has understood the position that an Italian judge would do if the Italian judge has been faced with the matter.]
Yet the position in France would be completely opposite result as a court in France would accept the remission from England & would ultimately apply French internal laws because French law accepts single renvoi doctrine.

48. Objections to the doctrine- the doctrine of double revoi is mainly applicable in England, N. America & Australia. The main point of objection is that the doctrine objectionable in principle, is based on unconvincing authority & cannot be said to represent the general rule of England law.
The total renvoi doctrine does not ensure uniform decisions – those who favour renvoi desires that the same decision shall be given on the same disputed facts irrespective of the country in which the case is heard. In truth, the doctrine of renvoi will produce this uniformity only if it is recognized in one of the countries concerned & rejected in the other. Eg., the law of the domicile, to which the English judge is referred, requires that the case is to be

49. decided exactly as the English court would decide it, what is the judge to do on finding that by English law his decision is to be exactly what it would be in the country of the domicile? When will the process of passing the ball from one judge to another stop? There is nothing apparent as to how this circle can be broken.
Uniformity will be attained if the law of the domicile repudiates the doctrine of total renvoi, ie., if instead of seeking guidance from a foreign judge, it provided that the national English law shall govern the matter, for in this case English internal law will apply & harmony will prevail.

50. It seems difficult to justify that a particular doctrine will work (total renvoi doctrine) only if the other country rejects it. The fact is that uniformity of decisions is unattainable on any principle/doctrine with regard to matters that are determined in some countries by the law of nationality & in others by the law of the domicile.
The doctrine of double renvoi signifies the virtual surrender of the English rules for choice of law- if one removes the technicality of this doctrine, it is nothing but a substitution of the foreign law for the English choice of law. Eg., British subject who dies intestate domiciled in Italy, the English law selects the law of Italy as the governing law but the Italian law selects the English law.

51. So when the English judge refers to what the Italian judge would have done, the English judge applies the internal rules of England & thus shows preference for the Italian law. The English law is dropped as it does not meet with the approval of the law-makers of Italy. Moreover the application of foreign country’s law maybe unacceptable for public policy issues in England.
The English principle, for instance, that an intestates movables shall be distributed according to the law of his last domicile is founded on the reasoning that rights of succession should depend on the law of the country where the deceased established his permanent home.

52. Thus if the reference to the law of his domicile is means a reference to the internal laws including private international law of that country, then not only is the policy of English law reversed but the probable intention of the person concerned(deceased person) is ignored & flouted. He may for instance have refrained from making a will having been content with the local laws of intestacy believing that law would be applicable in the event of his death, but it does not.

53. Total renvoi is difficult to apply- this doctrine makes the English judge as ascertain as a fact the precise decision that the foreign would give. This has 2 difficulties: 1st he must ascertain what view prevails in the foreign country with regard to the doctrine of single renvoi. 2ndly, where the foreign law (which the English judge refers) selects the national law of the person concerned, the English judge must ascertain what is meant by national law.
The chosen law that emerges from an application of the doctrine depends on whether single renvoi is recognized by the law of the domicile. If the court of the domicile would

54. accept the remission made to it by English law, it would then determine the case according to its own internal laws; otherwise it would apply the internal law of England. This dependence of the rights of the parties on the attitude of the law of the domicile towards the renvoi doctrine is a cause of acute embarrassment as it becomes difficult to obtain reliable information/suggestions because of lack of uniformity of expert witnesses on in the process.

55. Next difficulty that may arise is to ascribe a definite meaning to the expression “national law”. When the private international law of a country to which the English judge is to refer, selects the nationality of a person as the concerning factor, it becomes necessary to correlate the national law with internal law by which the issue before the court may be determined. This is a simple matter when the person is a national of some country like Sweden, which has a unitary system of territorial law. There is a single body of internal laws applicable throughout the territory of Sweden. The position is different where the country of nationality if a country like India/Britain(one law in England & one in Scotland) where there are several systems of territorial law.

56. Facts
Re O’keefe case – the question before the English court was the way in which the movables of X, a spinster who dies intestate, were to be distributed. X’s father was born in 1835 in Ireland but at the age of 22 he went to India & except for various stays in Europe lived there throughout his life & died in Calcutta in X was born in India in 1860; from 1867 to 1890 she lived in various places in England, France & Spain; but in 1890 she settled down in Naples & resided there until her death 47yrs later in About the year 1878 she had made a short tour in Ireland with her father. She never lost her British nationality but was domiciled in Italy.

57. The English court as per the Private International law of England selected the law of her domicile. But had an Italian judge been hearing the matter, he would have referred to her law of the country of which she was a national ie., Britain. Italian judge would have rejected any remission made to him by the English court as single renvoi is not recognized in Italy. Now which system of internal law out of those having some relation to X, would be regarded by the Italian court as applicable? Whether it was the law of England/Ireland/India? Which of these systems are to be selected by the court of Italy(if Italian judge would have been hearing the matter)?

58. The expert witnesses agreed that the choice of law would be the law of the country to which X “belonged” at the time of her death. She certainly didn’t belong to England for applying English internal law, for she had spend not much time in England. She might perhaps by reason of her birth in Calcutta, be regarded as belonging to India, but she had not been in India for 70yrs. It can also be believed that she belonged to Italy as she had continuously spend the last 47yrs of her life in Italy. But the judge reverted to X’s domicile of origin & held that she belonged to Ireland because that was the country where her father was domiciled at the time of her (X’s) birth although she was born in India.

59. In the result therefore, the succession to her property was governed by the law of her country which she had never entered except during one short visit sixty yrs before her death; Ireland was not even a separate political unit until 62yrs after her death; she was ignorant of the succession laws of Ireland. The reasoning on which such a remarkable result is reached are interesting.
1st the judge is required by the English law to the law of the domicile, then he allows the law of the domicile to

60. be supplanted by the law of the nationality;
then upon discovering that the law of the nationality is meaningless, the judge throws himself back on the domicile of origin & thus determined the rights of the parties by the legal system which is neither the national law nor the law of the domicile as required by the English private internal law. So the judgment seems to be superfluous.

61. Re Ross case- A testatrix, a British subject, who was domiciled in Italy, both in the English & Italian sense, disposed of her property by a will which excluded her son from the list of beneficiaries. This exclusion was justifiable by English internal law, but contrary to Italian internal law which required that ½ of the property should go to the son as his legitima portion (rightful owner). She left land in Italy & movable property both in England Italy.

62. The Judge with regard to the movables that in accordance with the English law the claim of the son to his legitima portio must be determined by Italian law as being the law of the testatrix's domicile. He then considered the question ‘what is meant by the law of domicile? Does it refer to municipal law or does it include its laws of private international law?
In the conclusion the judge applied English internal law & disallowed the claim of the son. This is the conclusion that an Italian judge would have reached. Italian judge would have referred to the law of the nationality & would have rejected the remission made to him by English law. As regards the land(immovable property), the English law referred to Italian law as the law where the land is situated.

63. An expert evidence showed that if an Italian court would have faced the matter, he would again turn to the law of the nationality ie England & would adopt English internal laws applicable to immovable property situated in England & belonging to an English testator. So the English judge applied the same reasoning (which an Italian judge would have done if he would have faced the matter) & the claim of the son failed.

64. Re Askew case – an English marriage settlement made on the marriage of X, a British subject domiciled in England, to his 1st wife, Y, it was provided that X, if he married again, might revoke in part the settled trust & make a new appointment to the children of such subsequent marriage. Some time before 1911, X, who had long being separated from Y, acquired a German domicile. In 1911, having obtained a divorce from a competent German court, he married Z in Berlin. Some time before the divorce a daughter had been born to X & Z in Switzerland. In 1913, X exercised his power of revocation & made a new appointment in the trust in favour of his daughter.

65. If we keep aside the laws of private international law, then when the English court faces an issue relating to the validity of this appointment in the trust in favour of the daughter, its clear that the daughter wasn’t a child of ‘subsequent marriage’, for the only marriage subsisting at the time of her birth was that between X & Y. So the daughter cant possibly be a child of a non-existing marriage.

66. The English judge insisted that the validity of the appointment dependent on whether daughter was legitimate. The daughter could not claim legitimacy under the Legitimacy Act 1926 since at the time of her birth her father was married to someone other than her mother. By English private international law the daughter’s legitimacy depended on whether German law, being that of her father’s domicile both at the time of her birth & also at the time of her marriage to Z, recognized legitimation by marriage. In such a case, German private international law referred the law to the law of the father’s nationality. Single renvoi was accepted in Germany.

67. If for instance a German court was facing the matter, it would 1st refer to English law, & then on finding a remission made by English law to the law of the domicile, & would accept this & apply German internal law. In other words, if the English reference to the law of the domicile meant a reference to the private international laws of the domicile (ie Germany), the daughter would be legitimate. So the judge applied the private international law of Germany & decided in favour of legitimacy of the daughter & the validity of the appointment in her favour in the trust.

68. Scope of Renvoi: Applicability & Inapplicable of Renvoi
Contracts -Renvoi doctrine is not applicable to contracts. Its accepted that no sane businessman or his lawyer would choose the application of renvoi. This objection has been confirmed by the Rome Convention on the Law Applicable to Contractual Obligations.
Validity of bequests- where the essential validity of a will/intestate succession to movables is determinable by the law of a foreign country, the view that would be taken of the matter of the foreign judge, if he were hearing the case, must be adopted.[Applicable]

69. Claims to foreign movables [applicable]- issues relating to right to foreign movables, the court will apply private international law of the country where the movables are situated.
Family issues [applicable]- relating to family issues, clear authority for application of renvoi is present specially relating to recognition of legitimation by subsequent marriage.

70. MODULE IV: DOMICILE
It is universally accepted that questions affecting personal status of a human should be governed constantly by one & the same law irrespective of where he may happen to be or where facts giving rise to the question may have occurred.
Now the question is what is the scope of this “personal law” & should its criterion be domicile or nationality? In England its settled that questions affecting status (relating to family relations & property) are determined by the law of domicile of the person concerned, eg., essential validity of marriage, effect of marriage on the property rights of husband & wife, jurisdiction in divorce, wills relating to movable property, intestate succession to movable property & inheritance by a dependant.

71. The concept of domicile is not uniform throughout the world
The concept of domicile is not uniform throughout the world. There are 2 main classes of domicile: domicile of origin that is automatically acquired by birth , that is the domicile of his father(if legitimate)/mother(if illegitimate).
Domicile of choice which every person of full age is free to acquire in substitution for that which he at present possesses. The acquisition of domicile by choice requires not only residence in a territory but also an intention by the person concerned to remain there permanently.

72. There are 5 general rules regarding domicile:
It is a settled principle that nobody shall be without a domicile, & in order to make this effective the law assigns what is called a domicile of origin to every person at his birth, namely to a legitimate child the domicile of the father, to an illegitimate child the domicile of the mother & to a foundling the place where he his found. This domicile of origin prevails until a new domicile has been acquired. So if a person leaves the country of his origin with an intention of never returning to it again, still his domicile of origin

73. adheres to him until he actually settles with the requisite intention in some other country.
A person cannot have 2 domiciles. Since the object of the law in insisting that no person shall be without a domicile, is to establish a definite legal system certain rights & obligations of his are governed & since the facts & events of his may affect several country’s legal system, it is necessary on practical grounds to hold that he cannot posses more than one domicile at the same time.

74. Domicile signifies connection with a territory subject to a single system of law. In the case of a federation, where the legislative authority is distributed by the particular state in which the person concerned has established his home. A resident in the USA for instance, is not normally domiciled in the USA, but in one of its states.
Nevertheless, the doctrine of unity of domicile ie., one man one domicile, maybe modified by federal legislation. Thus the family law in Australia provides that proceedings for a decree for dissolution of marriage maybe instituted if either party to the marriage is domiciled in Australia, thus an Australian domicile is created even though the concerned person might be technically domiciled in Sydney.

75. The fact that domicile signifies connection with single system of territorial law doesn’t imply a system that prescribes identical rules for all classes of persons. It might be that in a country like India where different law applies to different classes of persons according to their religion, race or caste, but still it is the territorial law of India that governs each person domiciled in India, notwithstanding that Hindu law may apply to Hindus or Muslim law to Muslims.

76. There is a presumption in favour of the continuance of an existing domicile. Therefore a burden of proving a change in domicile lies on the person who allege that a change has occurred. If it is impossible to determine with certainty what the resident’s(concerned person) is, then the court will decide in favour of the existing domicile.
The standard of proof necessary to rebut the presumption is adopted in civil cases is that which requires the intention of the concerned person to be proved on the balance of probabilities but not beyond reasonable doubt as is required in criminal cases.

77. There is a heavy burden of proof of loss of domicile of origin when the displacement of a domicile of origin by a domicile of choice is alleged, then the standard of proof goes beyond a mere balance of probabilities. In such a situation, the court regards the intention in favour of retaining the domicile of origin as an almost irrebuttable presumption. Two things are clear- 1st that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists; & 2ndly, that the acquisition of a domicile of choice is a serious matter not to be inferred from casual words.

78. The 5th rule is that subject to certain statutory exceptions, the domicile of a person is to be determined according to the English law on domicile & not the foreign concept of domicile.

79. Acquisition of domicile of choice- The 2 requisites for the acquisition of fresh domicile (that is of choice) are residence & intention. It must be proved that the person in question established his residence in a certain country with the intention of remaining there permanently. The ‘intention’ may either precede or succeed the establishment of the ‘residence’.
a)Residence- residence & intention are separate but inter related concepts. Residence in a country for the purposes of the law of domicile is physical presence in that country as an inhabitant of it. Eg., a Russian millionaire who owned 20 houses round the world & used his 2 houses in England as mere stop -overs while on trips was held as not to be resident in England.

80. Residence & intention are inter-related as residence is a fact, from which intention maybe inferred. Whatever weight is given to the length of residence it is undeniable that time is not the sole criterion of domicile. Long residence doesn’t constitute nor does brief residence negative, domicile. The residence must satisfy a qualitative & quantitative test. In Jopp v. Wood it was held that a residence of 25yrs in India didn’t suffice to give Indian domicile because of his alleged intention ultimately to return to Scotland, the land of his birth.

81. Again, Brevity of residence is no obstacle to the acquisition of a domicile if the necessary intention exists. If a man clearly intends to live in another country permanently for eg., where an emigrant having wound up his affairs in the country of his origin, flies off with his family to Australia, his mere arrival there will satisfy the element of residence. White v. Tennant- A man abandoned his home in State X & took his family to a house in State Y, about half a mile from X, intending to live there permanently. Having deposited his belongings, he & his family returned to country X, in order to spend a night with a relative. He fell ill & died there. It was held that his domicile at death was in Y.

82. It is possible for a person to be resident in several countries at the same time. In such a case of dual/multiple residence, a domicile of choice can only be acquired in a country if this can be shown to be the chief residence.
b)Requisite intention-
(The nature of the intention)
An intention to reside permanently- the acquisition of domicile of choice requires an intention by the concerned person to remain permanently in the territory in which he resides. In Udny v. Udny it was held that intention can be

83. can be inferred from residence for an unlimited time
can be inferred from residence for an unlimited time. A conditional intention will not suffice for acquiring domicile of choice. In Cramer v. Cramer a woman with a French domicile of origin who came to England intending to remain there & marry a Englishman, who was already married, did not acquire an English domicile of choice. Her intention to remain was conditional on both herself & her proposed husband obtaining divorces & on their relationship continuing.

84. Unlikely contingencies-In cases where the termination of residence is dependent on the occurrence of a contingency this will not prevent the acquisition of domicile unless the contingency is itself unambiguous & realistic.
If a contingency is not sufficiently clear to be identified then it cannot operate to prevent the acquisition of domicile of choice. In Re Furse case, evidence that the person concerned had a Rhode Island domicile of origin, would leave England where he had lived for 40yrs, if he was no longer able to live an active physical life on his farm in England, was not fatal to a change of domicile & was held

85. that the person concerned had acquired an English domicile of choice
that the person concerned had acquired an English domicile of choice. So a vague possibility that in some undefined circumstances a person might decide to move to another country does not deprive him from acquiring a domicile of choice.
But if the contingency can be identified, it has to be asked whether there is a substantial possibility of the contingency happening, if there is, this will prevent the acquisition of a domicile by choice. In IRC v. Bullock case, where a husband intended to return to Canada to live permanently if his wife predeceased him, it was held that the husband

86. did not acquire an English domicile of choice, since there was a real possibility in view of their ages of this happening.
Attitude towards contingencies- it has been held several times that the present residence of a man is not to be equated with domicile if he contemplate some remote/uncertain event, whose occurrence at some indeterminate time in the future might cause him to leave his country of residence. If this possibility is present in his mind, even an intention to reside indefinitely in the country is said to be ineffective.

87. In Bowie(or Ramsay) v. Liverpool Royal Infirmary, George Bowie who had left a will that was formally valid if his domicile at death was Scottish but invalid if it was English. He was born in Glasgow in 1845 with a Scottish domicile of origin. He gave up his employment as a commercial traveler at the age of 37yrs & refused to do anymore work during the remaining 45yrs of his life. But even the idle must be fed so after residing with his mother & sister in Glasgow, he moved his residence to Liverpool in 1892 in order to live on the bounty of his brother. At 1st he

88. lived in lodgings but moved to his brother’s house when the brother died 21yrs later, & resided there with his sole surviving sister until she died in he remained there until his own death in Thus George lived in England for the last 37yrs of his life. During that time he left the country only twice for tourism purpose. Though he often said that he was proud to be a Glasgow man, he refused on several occasions to return to Scotland, even for the purpose of attending his mother’s funeral. On the contrary he

89. he had expressed his determination never to set foot in Glasgow again & has arranged his own burial in Liverpool. Thus evidence was completely lacking of any intention to disturb a long a uninterrupted residence in England. Nevertheless the House of Lords held that George died domiciled in Scotland. The Lordships denied that his prolonged residence disclosed an intention to choose England as his permanent home. Rather they concluded that if his English source of supply failed he would have retreated to Glasgow. So he didn’t get England as his domicile of choice.

90. Evidence of intention- the following has been regarded as relevant criterion of intention:
Acquiring citizenship by naturalization
Retention of old citizenship
Purchase of house
Where income is earned
Purchase of burial ground
Directions in a will as to burial in a particular country
Long period of residence in a country
Not learning the language of the country in which the person concerned is living
Not acquiring bank account in that country
Remaining in that country even after spouse has died

91. Domicile of Origin & Domicile of Choice Contrasted
Tenacity of the domicile of origin- there is the strongest possible presumption in favour of the continuance of a domicile of origin. As contrasted with the domicile of choice, it has been held that its character is more enduring, its hold stronger & less easily shaken off. Decisions in Bowie v. Liverpool Royal Infirmary & Cramer v. Cramer, shows that the burden of proving a change of domicile from one of origin to one of choice was a heavy one.

92. Revival of the domicile of origin- if the domicile of origin is displaced as a result of acquisition of domicile of choice, the rule of English law is that it is merely placed in abeyance for the time being. It remains in the background ever ready to revive & to fasten upon the person concerned immediately after he abandons his domicile of choice.
Eg., X, had a domicile of origin of Scotland but lived all his life in England, developed a dislike for UK, leaves the country determined never to return again. He acquires a domicile of choice of Peru. After residing there for 40yrs, he leaves Peru & takes up temporary residence in New York, being undecided whether to settle permanently in California or Virginia.

93. the result is that immediately from his departure from Peru his Peruvian domicile ceases abruptly but his Scots domicile of origin revives & remains attached to him unless he has acquired a domicile of choice in some other country. During the period of indecision in New York there must be some personal law applicable to him. This might be either Peruvian or Scottish law. In the USA where the doctrine of revival is not accepted, USA would apply law of Peru. The doctrine of revival has been rejected in Australia & New Zealand.

94. Domicile of Dependent Persons
Children
A child’s domicile of origin- a child acquires at birth a domicile of origin by operation of law, if legitimate & born in his father’s lifetime, the domicile of the father, if illegitimate or born after the death of the father, the domicile of the mother. A foundling is domiciled in the country where he is found. A domicile of origin once acquired remains constant throughout life.

95. Effect of a change in the parent’s domicile- a child under 16yrs is unable to acquire a domicile of choice by his own act but there is nothing to prevent the acquisition of a domicile of choice for him by one of his parents. The rule is that the domicile of a legitimate child automatically changes with any change that occurs in the domicile of the farther. This unity of domicile is not destructible at the will of the father. The domicile is not terminated if the father wants to create a separate domicile for his son, for instance by setting him up in business abroad.
At one time, as between a living father & legitimate child, there was an unity of domicile even though they may have resided in different countries & even after divorce & the

96. mother had custody. But this practice has now been altered by the Domicile & Matrimonial Proceedings Act Where both parents are alive but living separately, the child’s domicile is that of the mother if the child is living with her & not with the father, until he ceases to live with the mother & starts living with the father, then he will get the domicile of the father. A child who has his mother’s domicile continues to retain it even after her death unless he starts living with the father.

97. The domicile that a child acquires by reason of his father/mother moving to another country is a domicile of choice/quasi choice, & his domicile of origin continues to be that imposed upon him at birth. This rule may become important at a later stage in his life. For eg., a father domiciled in England at the time of his son’s birth, later acquires a domicile of choice in France& retains it until after his son reaches 16yrs of age. At the age of 25yrs, the son acquires a domicile of choice in Italy but later abandons Italy permanently & dies without acquiring another permanent home(another domicile). In these cases, the English

98. the English domicile will revive at the loss of the son’s Italian domicile & English law will govern testamentary/intestate succession to his movable property.
Married Women
The abolition of dependency- until 1974 the rule was that the domicile of the husband was attached to his wife immediately on marriage & it was retained by her for the duration of the marriage.
This rule was abolished by abolished by the Domicile & Matrimonial Proceedings Act Now a married women can choose her domicile like any other person, although

99. in majority of cases she & her husband acquires the same domicile.
Transitional problems- the 1973 Act also deals with the transitional problem of the domicile of dependence of a wife acquired before A woman married before 1973 who acquired her husband’s domicile on marriage, is to be treated as retaining that domicile as a domicile of choice (if it was not the wife’s own domicile of origin; this happens if the husband & wife are born in different countries) until it is changed by acquisition of a new domicile of choice or she can also revive her domicile of origin/birth on or after 1st Jan 1974.

100. Domicile in India The Indian Constitution recognises only one domicile
Domicile in India The Indian Constitution recognises only one domicile. In India, the concept of domicile does not do away with the concept of the subsidiary domicile e.g. domicile of States. Laws in India are silent as regards the position of married women in respect of her domicile after marriage. Since our laws have not been amended like the English Laws, our courts still consider married women as dependents.
However the Indian Succession Act 1925 has to a great extent codified principles of Private International Law

101. relating to domicile in India. Under Sec
relating to domicile in India. Under Sec. 16 the wife’s domicile no longer follows that of the husband if they are separated by a competent court. But the Act is limited both as it relates to only cases of succession & excludes Hindus, Muslims, Sikhs, Buddhists or Jains.
Be it pre/post independence, the Indian judiciary still considers the domicile of the married women to be that of the husbands.
Now after the 1976 Marriage Laws Amended Act, Sec. 19 of Hindu Marriage Act & Sec. 31 of the Special Marriage Act has now made it possible to file for any matrimonial relief on the basis of residence of any of the parties & not domicile.

102. MODULE VI: CHOICE OF LAW IN CONTRACTS
United Nations Convention on Contracts for International Sale of Goods 1980 (CISG)
The CISG can be considered as among the most well known private international law as recognized by nations & organizations as it is widely accepted & ratified by countries around the world.
CISG applies to contracts of sale of goods between parties whose places of business are in different States & governs issues involving the formation of a contract for the sale of goods & the rights & obligations arising there from.

103. Its provisions address a multitude of issues often raised in international commercial contracts;
everything from how an offer/acceptance maybe made,
how to resolve problems of non-conformity of goods, remedies & damages for breaches of contracts. It is a self executing treaty & is part of the domestic law of each Contracting State. Yet parties may choose to avoid application of the Convention or to vary from any of its provisions in their private contracts.

104. Important terms:
When a case comes before a court & all the main features of the case are local, the court will apply the lex fori, ie., the prevailing municipal law, to decide the case. But if there are foreign elements to the case, the forum court may be obliged under the conflict of laws system to consider:
Whether the forum court has jurisdiction to hear the case
The forum court then characterizes the legal issues in the case & allocate it to relevant legal classes
Then apply the choice of law to decide which law is to be applied to each class.

105. The lex loci contractus (law of the place where contract is made)is one of the possible choice of law applied to cases testing the validity of a contract. eg., a person domiciled in Canada & a person habitually resident in France make a contract by & agree to meet in New York to record a music album; the relevant choice of rules would be either of the following:
The lex domicilii (law of domicile regulating all suits having foreign element to end different results will occur depending on which law will apply) law of habitual residence to determine the capacity of the parties to enter into contract
The lex loci contractus ( law of place where contract is made) which would be difficult to establish since neither part left his own jurisdiction(contract was made through s)

106. The lex loci solutionis (law of place where performance occurs)might be the most relevant since New York is most closely connected to the substance of the obligation under the contract
The proper law(chosen by the parties)
The lex fori (law of country where action is brought) which might have public policy issues if for eg., one of the parties was a minor.

107. Implications of law:
If a contract is valid where it was made, it is generally valid everywhere
If a contract is void where it was made, it is void everywhere
The agreement will not be valid in the forum country if it violates the law of the forum country
If a contract is made in one state but its contents specifies that it is to be carried out in another state, two places come into significance:

108. Locus celebrate contractus (where it was signed) &
Locus solutionis (where it is to be performed)
The laws of the locus celebrate contractus state shall govern all matters concerning the mode of constructing the contract including the meaning & factors & validity of the contract.
The laws of the locus solutionis state will apply to the performance or execution of the contract.

109. Determining lex loci contractus: sometimes it is difficult to determine in which state the contract was signed, eg., if the contract was signed at sea, moving train or if the details of the contract signing was not well documented, then the court uses any of the following factors to determine the applicable state:
residence/domicile of the signatory state
Main place of business of the signatory parties
State in which the business was incorporated
State nominated for arbitration proceeding in case of conflict
Language used to write the contract
State where completion of the contract is specified to occur…ect

110. The Rome Convention –Applicable Law to Contractual Obligations.
On 19th June 1980 in Rome the European Union, ratified a unified system for the application of contractual obligations that would be followed for the European Economic Community & its members. The Rome Convention was convened to create at least a harmonized & unified body of law within the European Union. The Convention came into force on 1st April 1991.

111. Art. 1 – Scope of the Convention
The Convention applies to contractual obligations that are subject to the involvement of different countries.
Contractual obligations apply to all contracts except for
Wills & successions
Property rights within the context of matrimony
Duties based on family relationship
Parentage
marriage
Obligations towards illegitimate children

112. Cases that question status/legal capacity of people
Contracts that include obligations under bills of exchange/promissory notes/other negotiable instruments
Arbitration agreements
Creation/incorporation/personal liability of officers of companies
Constitution of trust/relationship between settlers/trustees/beneficiaries
Contracts of insurance.

113. Art. 1 defines the scope of the Convention which includes all choice of law issues that involve contractual obligations. Under Art. 10 it is stated that once choice of law is selected, the lex causae (ie., laws chosen by the forum court from among the relevant legal system to arrive at its judgment of an international) will then govern the following:
The interpretation of the case & the law
Performance, but in regard to the manner of performance & the steps that must be taken in case of ineffective performance, the lex loci solutionis(the law of the place in which performance takes place) must be taken into consideration.

114. Within the limits of the powers given to the forum court by its procedural law, the consequences of breach, including the assessment of damages as governed by law
The various ways of extinguishing obligations & limitations of actions
Consequences of nullity of contract.

115. Meaning of ‘Proper law’
Proper law of the contract means the law chosen by the parties, the choice being either expressly made in the contract or to be inferred from the terms & nature of the contract, & if no choice could be inferred, then choosing the law with which the contract had the closest connection.

116. Proper law under Rome Convention
Express Selection- Art. 3 expresses the general rule that the parties to a contract have a freedom of choice over the Applicable Law. This can be expressed either in words/terms of the contract/circumstances of the case. This choice may apply to the whole/just a part of the contract & the choice can be revoked.
This article states that a contract shall be governed by the law chosen by the parties. The choice must be expressed with certainty in the terms of the contract/circumstances of the case. By their choice the parties can select the law applicable to the whole/part of the contract.

117. The parties may at any time agree to subject the contract to a law other than that which previously governed it. Any variation by the parties of the law to be applied made after the conclusion of the contract shall not prejudice adversely the rights of third parties.
The fact that parties have chosen a foreign law, whether or not accompanied by a choice of foreign tribunal, shall not, where all the other elements relevant to the situation at the time of the choice are connected with one country only, prejudice application of rules of laws of that country which cannot be derogated from by contract, which are called ‘mandatory rules’.

118. The important aspect of Art
The important aspect of Art. 3 is that the contacting parties can clarify the scope & limitation of the contract within the context of a particular law. The advantage in this is that both parties get a chance to establish a sense of harmonization by referring to a certain set of laws throughout the course of the contract.

119. Proper law..continued
Implied Selection- In implied selection there is the absence of express choice & the applicable contract is subject to the laws that are closely associated to the case. Art. 4, states that to the extent that the law applicable to the contract has not been chosen in accordance with Art. 3, the contract shall be governed by the law of the country with which it is most closely connected. Nevertheless, a severable part of the contract which has a closer connection with another country may by way of exception be governed by the law of that other country.

120. It shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of conclusion of the contract, his habitual residence, or, in the case of a body corporate or unincorporated, its central administration. However if the contract is entered into in the course of that part’s trade or profession, that country shall be the country in which the principal place of business is situated or, where under the terms of the contract the performance is to be effected through a place of business other than the principal place

121. of business, the country in which that other place of business is situated.
The subject matter of the contract is a right in immovable property or a right to use immovable property it shall be presumed that the contract is most closely connected with the country where the immovable property is situated.