Private International Law

MOHAMMAD IRFAN BA.LLB 4TH YEAR

ASSIGNMENT ON PRIVATE INTERNATIONAL LAW NATURE AND SCOPE OF PRIVATE INTERNATIONAL LAW

INTRODUCTION:1 Private international law is a body of rules used to resolve legal disputes between private individuals who cross international boundaries. Where a dispute is between two parties in different countries with different legal systems, private international law helps a court determine which country's substantive law will be used to decide the matter. Although it is called 'international law' it is in fact a body of domestic law, and each country has its own set of private international law. It is distinguished from public international law, which is the law which governs relations between States (nations). Although private international law is a domestic body of law, a lot of work has been done by various international bodies to try to harmonize private international law around the world. This harmonization effort is designed to minimize the impact of international legal disputes and in so doing to promote international trade and commerce.

DEFINITION OF PRIVATE INTERNATIONAL LAW: Private international law refers to that part of the law that is administered between private citizens of different countries or is concerned with the definition, regulation, and enforcement of rights in situations where both the person in whom the right inheres and the person upon whom the obligation rests are private citizens of different nations. It is a set of rules and regulations that are established or agreed upon by citizens of different nations who privately enter into a transaction and that will govern in the event of a dispute. In this respect, private International Law differs from public international law, which is the set of rules entered into by the governments of various countries that determine the rights and regulate the intercourse of independent nations. Private international law has been defined as law directed to resolving controversies between private persons, natural as well as juridical, primarily in domestic litigation, arising out of situations having a significant relation to more than one state.

1 (http://libguides.library.qut.edu.au/c.php?g=427886.(last visited on 8th march,2016))

CHESHIRE “PIL is that part of law which comes into play when the issue before the court affects some fact, event or transaction that is so closely connected with a foreign system of law as to necessitate recourse to that system”. BATY “PIL is the rules voluntarily chosen by a given state for the decision of cases which have a foreign complexion”. P. TANDON “Private international law is a body of principles determining questions as to jurisdictions and questions as to selection of appropriate law, in civil cases which present themselves for decision before a court of one state or country, but which involves a foreign element i.e. which effect foreign persons or foreign or transactions that have been entered in a foreign country or with respect of foreign system of law" PITT COBBET “Private international law is the body of rules for determining questions as to selection of appropriate law, in civil cases which present themselves for decision before the courts of one state or country, but which involve a foreign element i.e. which effect foreign persons or foreign things or transactions that had been entered into wholly or partly in a foreign country or with reference to some foreign system of law." Private international law may be defined as the rules voluntarily chosen by a given state for the decision of cases which have a ‘foreign’ element or complexion. Thus, where two Englishmen make a contract in Portugal for the sale of goods situated in Lisbon, payment to be made in London, an English court would certainly recognize and apply Portuguese law as far as it affected the validity of the contract.

The private international law forms part of municipal laws of a state and is meant for purpose of deciding whether a given case involving “foreign’ element :  Shall be adjudicated upon by its own domestic laws or by laws of some other state;  Shall be subject of its courts of some other state. Thus, private international law deals with cases in which some relevant fact has a geographical connection with a foreign country and may on that ground raise a question as to the application of Indian or some other appropriate foreign law to the determination of the issue or as to the exercise of jurisdiction by Indian or foreign courts.

APPLICATION OF PRIVATE INTERNATIONAL LAW: Usually the cases that come for trial before the municipal courts are those whose elements are internal. Thus, 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. It may happen that 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), who has left movable and immovable properties both in India and abroad ; to decide a petition of divorce presented by an Indian domiciled in India who had married an English woman in England, or who had married a French woman in Berlin; or to determine a petition presented by an English domiciled parent for the custody of his child who came to India with its mother as a tourist ; or 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 contract entered into in Paris for the supply of goods to India; to determine a claim of a Pakistani domiciled plaintiff against an Indian domiciled defendant for a tort committed by the latter in Pakistan while he was there on a short visit; or to try a suit of an Indian domiciled plaintiff against an Indian resident in India for the recovery of a debt taken by the latter in Bangladesh and payable there. It is evident that all these cases have some foreign element.

Sometimes, yet another question arises in a municipal court. It is the question of recognition of a foreign judgment or enforcement of a foreign decree. Suppose, an Indian wife files a petition for maintenance under s. 125 of the Indian Criminal Procedure Code 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 maintainable2. The question is whether the Indian court will recognize the New York decree and give effect to it. Or, A obtains a money decree against B from a Dacca court and files an execution application of that decree in an Indian court against the Indian situated assets of the judgment-debtor. The question here is, can a foreign decree be executed in India? Or, P an English mother who had married B an Indian domiciled person at a London registry office files an application in an Indian court for the custody of her child who had been brought to India earlier by the father in defiance of custody order of the London court committing the custody of the child to her. The question before the court is whether an order of the foreign court will be given effect to in India, and if so to what extent? Thus in respect of cases having foreign element, a domestic court may be called upon to determine the following three questions:  In what circumstances the court will assume jurisdiction over cases having foreign elements; (Choice Of Jurisdiction)  If the court answers the first question in affirmative, then whether it will determine the case entirely under the Indian law, or will it apply the appropriate foreign law; (Choice of Law) and  In what circumstances it will recognize a foreign judgment or when it will order the execution of a foreign decree. (Recognition and Enforcement of Foreign Award.) So long as international relations are based on the sovereign equality of nations, the municipal courts are not bound to recognize or to give effect to a foreign' law or foreign judgment.

2 Under s.125, Cr. P.C the obligation exists only in respect of wife. Children (legitimate or Illegitimate) and parents, the form wife includes a divorced wife who has not remarried.

They will be, strictly speaking within their rights and acting in accordance with the principle if they decide every case in accordance with their domestic law, and ignore all foreign judgments. The doctrine of sovereignly imposes no obligation on municipal courts to apply any other law. But such are the facts of international life that hardly there is a country which claims to decide cases having foreign elements entirely on the basis of its domestic law. Practically every country of the world decides cases having foreign elements with reference to concerned foreign law. Similarly, courts of most countries do accord recognition to foreign judgments. But there no uniformity in the laws of the countries of the world as to in what circumstances municipal courts assume jurisdiction over cases having foreign element or in what circumstances and in which cases foreign law is to be applied or foreign judgments are to be given recognition. It is the function and province of private international law to provide solution to these problems. In the words of Cheshire “private international law, then, is that part of law which comes into play when the issue before the court affects some facts, events i or transaction that is so closely connected with a foreign system of law as to necessitate recourse to that system. In the words of Dicey and Morris, English private international law is that branch of law of England which consists of rules which do not directly determine the rights and liabilities of particular persons but which determines the limit of the jurisdiction to be exercised by the English courts and also the choice of the body of law, whether domestic law of England or the law of any foreign country by reference to which English courts are to determine different matters brought before them for decision."3 Private international law, though has an international aspect, is essentially a branch of municipal law. This is why every country has its own private international law. However, private international law though a branch of municipal law, does not deal with any one branch of law, but is concerned practically with every branch of law and thus has a very wide ambit. The need for private international law arises because different countries have different systems of law. Every country makes laws regarding marriage, matrimonial causes, adoption, succession, contract, debts, torts and like matters. But, more often than not, laws of different countries have different rules in respect of these matters. Sometimes even within a country laws are different.

For instance, laws of different states of the United States differ from each other. Had it not been so, there would not have been any need for private international law. Thus, if marriage means the same thing all over the world and the rules of capacity and ceremonies of marriage are the same in all countries, the question of conflict between the laws of two countries would not arise. And if there is no conflict between the laws of different countries, there would be no need for private international law. Since the laws of different countries differ, it becomes necessary in every country that there should be a branch of law which resolves these conflicts. It is this branch of law which is given the name of private international law or conflict of laws. Broadly speaking, conflict of laws may arise in the following two cases:  When the laws of two or more countries with which the case is connected differ from each other.  The conflict may arise between the laws of the same country. This may happen: o When laws of different states or provinces of a country differ from each other, just as the laws of states of the U.S.A. or of the Soviet Union or of the provinces of Canada differ from each other. This is a case of Conflict of territorial laws, Or o When the laws of different communities in a country differ from each other. For instance, in personal matters laws of Hindus, Muslims, Christians and Parsis differ from each other in India. This is a case of conflict between the personal laws of communities. Whenever municipal courts are called upon to adjudicate upon a dispute, they render decisions on the basis of their internal laws. Thus, an Indian court adjudicating upon a case it in accordance with Indian law. But then the question is what do we mean - by internal law or Indian law?

From the point of view of private international law, the internal law of a country may be divided under two heads.

 First, by internal law, or Indian law (i.e. internal law of India), we mean that body of rules by which all matters relating to the rights and obligations of persons residing or domiciled in India, and all disputes arising from contracts and transactions entered into in India between such persons are decided. To distinguish it from the second type of law it may be called "internal law". This internal law is obviously very important. Hoverer, howsoever important this law may be, it has, from the point of view of private international law, directly no significance.  Secondly, the second branch of Indian law is that which, though does not decide the rights and obligations of parties, determines the territorial limit of Indian courts and lays down as to whether a given case will be decided by reference to do the internal law of India or by reference to relevant foreign law. This branch of law, which fixes the territorial limits of the jurisdiction of Indian courts, comes into operation when a case has some foreign elements. This is known as private international law. In a very wide and ‘broad sense Indian law means all rules of law which Indian courts apply when they adjudicate upon a case, and in this sense it also include rules of private international law, choice of law. In a under which the courts determine the questions of jurisdiction and narrow sense, Indian laws all such rules between the rules of private international The distinction country the broad narrow meaning of the internal law of a to forget must always be kept in view. It is, therefore, evident that private international law is a branch of internal law of every country. But private international is that branch of law by reference to which no adjudication can be finally determined. Private International law, by its very nature, merely indicates the governing law under which a cases is to be decided. For Example, a court is called upon to determine the validity of marriage performed between an Indian domiciled man and an 'English domiciled woman, the ceremonies of marriage were performed in Paris. Private international law merely informs us that the question, as to capacity to marriage is to be determined by the law of the domicile of the parties and the question of performance of ceremonies is to be determined by the law of the place where the marriage was solemnized. On knowing this, they decide the case accordingly: if the question is of capacity court Fill the matter will be determined by reference to Indian law or English law: whether or not, the court

will decide it by reference to French law. or, if the question is whether requisite ceremonies were per-formed when it is said that cases having foreign elements are to be determined by reference to relevant foreign law, the question is what is meant by 'foreign law'. In common parlance, foreign law means the law of a foreign country. But in private international law foreign law has a technical meaning. When a case is decided by a court with reference to a system of law which is different from a system of law which the court will apply to a purely domestic case, such law is called foreign law. This may be the law of a country; or it may be the law of a part of a country. For instance, a Quebec court may decide that the law applicable to the case is the law of India or the law of Ontario. From the point of view of private international law, for the court of Quebec, the law of Ontario is as much a foreign law as the law of India.

UTILITY OF PRIVATE INTERNATIONAL LAW: Private international law explores cross-border legal relationships. The discipline investigates core legal issues pertaining to international communication, such as the criteria for resolving conflicts of law arising under contracts. Teaching and research in private international law comprise various areas, such as the international law of obligations, international family and inheritance law, international property law and international civil procedure law. Other issues examined relate to personal legal status as well as the theory, concepts and methods of private international law.  Private international law plays a vital role to develop the existing legal systems of the different states. It helps to understand various legal orders all over the world.  By the proper recognition and enforcement of foreign judgment, PIL broaden the domain of states legal arena.  Private International law helps to develop international legislation and international law association.  Private international law develops the notion of international harmony of decisions.  PIL ensures the stability with regard to cross-border legal relationships.

NATURE OF PIL:

Private international law is the area of law that comes into play whenever a court is faced with a question that contains a foreign element, or a foreign connection. The presence of such a foreign element in a legal matter raises a number of questions and it is the function of private international law to provide an answer to these questions and to ensure just solutions. It is concerned with all legal relationships between private entities and thus includes, for example, family law and the law of contracts and obligations. These laws differ from country to country.  PIL is a branch of municipal law. PIL is essentially a system of Indicating choice, choice    

of jurisdiction, choice of law and recognition of a foreign judgment. PIL contains the following basic nature: Its subject matter always includes a foreign element; One of its prime nature is the pursuit and application of the appropriate legal system and Jurists have been more influential in this branch of the law than is typical with other legal subjects.

REFERENCE: BOOK: 1. Paras Diwan, Private International Law (Indian and English), (Deep & Deep Publications, New Delhi, Fourth Revised and Enlarged Edition) WEBSITES: 1. INTRODUCTION TO PRIVATE INTERNATIONAL LAW AVIALABLE AT :

https://www.linkedin.com/pulse/private-international-law-salauddin-saimum5989072056078135296 (Last Visited On 8th March, 2016)