Private International Law Notes

Private International Law

Three real and apparent exceptions: The apparent exception can be understood best by example. Inter state succession to movables. The English court wants to determine the domicile of the deceased to make a choice of law which will be applicable. According to English conflict of law rules, the deceased was domiciled in France. The court looks at the French COL and finds that the person was domiciled in England. This problem is associated with the doctrine of Renboi, which means reference back. The solution provided in Renboi is that he matter will be adjudicated, as it would have been decided by the French court. Or in other words, the English court in this case will decide the matter, as the French court would have. Re Annesley 1926 CH page 692- the outcome was called to be an anomalous one because the conflict of law of France. The French law said that the succession of the movable is determined by the nationality of the party. So the English though applied the French law in accordance to its conflict of law rules but it compared apples with oranges. To avoid French conflict of law, a better reason would be that the French law would be applicable because in their law, determination of domicile is not important but nationality is.

Characterisation The problem of characterisation, also known as qualification or …… as preferred by some continental Europe wroters.it was introduced independently but almost simultaneously by German jurist Kahn and French jurist Partin at the end of the 19 th century. Characterisation was introduced to American lawyers by Lorenzen in 1920 and to English lawyers like the Beckett in 1934. The nature of the problem of characterisation results from the fact that the rules which have been evolved to deal with the choice of law problems are expressed in terms of juridical concepts and connecting factors. When we say the juridical concepts and connecting factors, remember the examples. Two persons marry each other w/o taking the consent of their parents. There will be two concepts – formal validity or the capacity to marry in case of absence of consent of the parents.

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Generally speaking in the respect criticism of the contesting views due to reasonable causes in the PIL, it is the lex fori which comes in characterisation. If two persons, away from their legal system get married without the consent of their parents where the consent is required. They got married in another legal system, so when it comes to divorce or separation, one party may claim that the marriage is void. The question before the English court will be whether to call that requirement an essential validity or a formal validity. If it characterises it as an essential validity then the marriage becomes void and conversely, if they characterise it as a formal validity then the marriage will be valid. This juridical concept should be determined in a particular fashion – essential or formal. If that fashion is supported by a legal forum, then it is determining in ac certain way and a certain conclusion, lex fori is applicable. The lex cause is applied then it will be an essential validity of the marriage. Lex fori gives an option to decide either way. If we take the lex cause rule, the inevitable answer will be essential validity. The problem of characterisation as given applies to polymerous literature and much of it is theoretical. The reality is there are many theories as there are writer and the theories are no abstract that when applied to a given case, they can produce almost any result. Apart from that they appear to have no influence on the practice of the courts in England or in India. For this reason, no attempt will be made to summarised them in detail, though the main features of most of them will be outlined. What exactly is that is characterised? What are the man parts of any suit that are relevant even in a purely domestic situation? – Facts of the case, rule of law applicable, whether we characterise an issue and any one of these can become a first one to be characterised. The task which most of the writers set for themselves it that of determining which system of law should decide how legal rules and institutions should be characterised. To main schools of thoughts have emerged, one favouring lex fori and another favouring lex cause. The great variety of continental writers follow…like Kahn in thinking that with certain exceptions, the process of characterisation should be performed in accordance with the domestic law of the forum. If the forum has to characterise a rule or all institution of foreign law, it should inquire how the corresponding or most closely analogous rule or all institution of its own law is characterised and apply that characterisation to the foreign institution or rule. The principle argument put forward in favour of this view is that if the foreign law is allowed to determine in what situations it is to be applied, the law od the forum could lose all control over

the application of its own conflict rules and would no longer be master in its own home. This is the justification of the application of the law of the forum. Criticism 1. It may result in the forum refusing to apply the rule of foreign law in cases where it would be applicable if its nature were to be properly appreciated. 2. This view is said to breakdown where there is no clear analogy in the lex fori to an institution or rule of the foreign law. 3.

The contesting view – other continental writers think that the process of

characterisation should be performed by lex cause that is the applicable foreign law. Every legal rule takes the classification from the legal system to which it belongs. The argument advanced in favour of this view is that to say that the foreign law is to govern and then not apply its characterisation is tantamount to not applying it at all. this view is riddled with difficulties and few writers have adopted it. Criticism 1. This view argues in a circle. Before the process of characterisation has led to the selection of the legal system 2. Where there are two potential foreign law applicable, which one will be chosen cannot be determined by this mode.

18th July 2019 Just because something falls under the heading procedure does not mean all the provisions under it can be characterised as subject mater of procedural law. the problem with theories is that they assume that all legal systems characterise the laws as they are. Exception will come from actual analysis. As far as examples in English law is concerned, it is almost certain by English adjudications that the question whether interests in property are interest in movables or immovable must be determined by the lex situs. Lex fori will be applicable when the lex situs is not applicable. (lex situs is also an exception to lex fori in the sense that it indicates the applicability of a foreign law). lex situs is at a preliminary stage. That the English rule that a legacy to an attesting witness is void is a rule of essential validity and not form of the will. The English rule as to the burden of proof of testamentary capacity is a one of procedure and not a substantive rule. Little indication of the method used by the English court to reach its conclusions is given. To sum up the understanding of characterisation we take the first English case of

Re Cohn (1945) Ch 5 Two ladies, Mrs Oppenheim and Mrs Cohn, both germane domiciled in Germany but living in London, were killed in an airway during WW2 in London. In circumstances in which it could not be determined which of them died first. Mrs Cohn left a will in which Mrs Oppenheim would inherit her movable properties in case of her death. The fact is that both of them died in circumstances in which it was impossible to tell who died first. Since Mrs Cohn was domiciled in Germany, succession to her state was in case of movables governed by the law of Germany ( lex domicile). As the matter was before an English court, all questions of procedure, including those of evidence, were governed by the law of the forum (lex fori). Categories involved in this question 1. succession to movables – who died first? 2. procedures and evidence Section 184 Law of Property Act of 1925 states that where two persons die in circumstances rendering it uncertain which of them survived the other, such deaths will for all purposes affecting the title to property be presumed to have occurred in order of seniority. It is giving a presumption in those circumstances in which it is impossible to determine who died first. The parallel German law had the presumption that in such circumstances, both died simultaneously. The result was that Mrs Oppenheimer could take under the will only if the English presumption was applied. The court went on to characterise whether S 184 was substantive or procedural. Interestingly the English court did not characterise the issue of survivorship in abstract instead it looked first in the English provision and decided that it was inapplicable because it was not concerned with proof. “The fact proved in this case is that it is impossible to say whether or not Mrs Oppenheimer survived Mrs Cohn.” Proof stops there according to English law. Presumption is procedural but irrebutable presumption of law is substantive. “S 184 does not come into the picture at all. It is not a part of the law of evidence of the lex fori for the section is not directed to helping in the ascertainment of any fact but contains a rule of substantive law directing a certain presumption to be made in all cases affecting the title to the property.” S 184 determined as substantive. Having thus characterised the English rule as being part of the law of succession rather than the law of evidence, the judge then turned his attention to the German rule. This rule was contained in a legislation passed in 1939, which amended a

provision of German civil court. This provision was found entitled “general principles” and was found under the heading “natural persons” contained in Book 1 of the German civil court. The courts conclusion after looking at the provision was that the German law should also be characterised as falling under succession (substantive) rather than procedural and evidence. His reason was that its terms and the place in which the repealed article dealing with the same general subject matter was to be found made it clear that this was the correct characterisation.

19th July 2019 What are we to make of this method of solving the problem? In this case, what has the judge characterised? He has characterised Rule of Law and not the general issue. Each rule was characterised relating to succession but it does not mean that both the rules should have been characterised separately. In this case it was characterised separately. Criticism 1. it gives an idea that maybe the court proceeded that merely because the English rule was characterised as one that of succession it had to do the same with the German rule. 2. What would have happened if the relevant German rule would have been placed in the German civil court under the heading evidence. By this method the court would have decided that both the rules are inapplicable. 3. The court might have characterised the English rule as being part of the evidence. 4. The German rule was of clearly the same nature as the English rule. Why was it necessary for the English rule to characterise it separately. The English rule characterised it on the entirely reasonable ground that it was not intended to help the court to establish who in fact died first. But laid down the rule on the distribution of property in the cases in which it could not be determined who dies first. The German rule did exactly the same. So there was no reason to characterise the German rule differently. The advantage of this statement is that the problem which arose in this case could have been settled forever. Re Maldonado 1954 D 223 (CA) In this case a woman domiciled in Spain died intestate and without living relatives. She left movable property in England. Bona vacantia – ownerless property.

22nd July 2019 claimed by both the Spanish government and the British crown. This raised the question of the applicable law. Spanish law – it went to the Spanish state English law – escheated to the crown. This in turn depended on whether it came within he scope of the conflict rules which provides that succession to movable is governed by the law of the domicile of the deceased. Or whether its simply raised the question of ownerless property (Bona vacantia). In which case it would be governed by the rule that title to property is governed by the law of the place where the property is situated. Since the property was situated in England, the property would go to the English crown as per English laws. The COA held that since under Spanish law the Spanish state succeeded in such a situation as the final heir (Ultimus Heres), Spanish government was entitled to the movables in England. 

Whether there were two conflicting rules in this case? – There is a problem in the way the English court characterised the problem. We have no issue if the English court determines that the Spanish courts will have the property. But the English court did not contest the process, or characterised. At first sight, this decision might seem like an logical conclusion of English rule (lex domicile). However, the diff between English and Spanish rules was merely verbal. Most legal systems have a rule that the state takes the property of anyone who dies in the state without heirs. In view of this, one is entitled to question whether the approach adopted by the COA was sound (which again involved characterisation of the rule of law rather than an issue and which maybe regarded as an application of the theory that characterisation must be determined according to the lex cause).

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Is it desirable that the right to property in England should depend on a verbal formulation with no real contest? There was no contest whether to consider it an ownerless property or an heirless property. This approach gives rise to the same problem as discussed in Re…. in future cases involving countries other than Spain, lawyers in England will have to discover which theory is adopted by the lex domicili. Succession is different from Bona Vacantia. The main criticism is towards not having a clarity in future cases whether the question to be looked into heirless property or the property without any owner. In future cases involving jurisdictions other than Spain, the lawyers will have to discover the laws in those countries. Would it not be better for the English court to recognise that there is a functional difference between rules of law giving a relative of an interstate, the right to succeed and those giving such a right to the state or some other public authority or institute.

The former are intended to uphold the presumed wishes if he intestate. While the later are an expression of governmental power. If the court would have approached this methodology, the English court would then define the English conflict rule with greater precision by ruling that the concept of succession as used in the rule (Spanish rule) does not include a claim of the latter kind. In other words, we are not only criticising the method adopted by the English court to reach the conclusion. It also criticised the outcome. If the foreign rule were characterised as one of relating to being escheated to the state, then the English rule would have prevailed and the outcome of the case would also have been different. Adams v National Bank of Greece 1961 AC 255 (read from the material) In 1927, the bank in Greece issued mortgage bonds open for all nationals as well as foreign nationals to be paid in pounds, to mature in 1957. The bond in the terms in conditions also stated that it has to be paid in pound and applicable law would be the English law. WW2 happened. The succeeding bank provided for amalgamation rules that mortgage bond to be One of the bond holder wins the case. After three days, the Greek legislature amalgamates the bank and makes provision that all the amalgamation terms and condition are the applicable law relating to any matter. This was a deliberate attempt so the English law not applicable. The argument by the respondents was the contest here is between two concepts….. The decision was annulled by the court.

In essence, characterisation is a process of refining English conflict rules by expressing them with greater precision. If the relevant rules is, for example, succession to movables is governed by the lex domicili of the deceased, characterisation involves deciding precisely which issues should be governed by the lex domicili. Which issues – a particular case has diff issues, one issue can be which law will be applicable. When we say that this has only made it clear, then it means that Moreover, the term succession is simply a useful way of referring to the bundle of issues that are regarded as appropriate for determination by the lex domicili. So to say that the rider is, to believer that the term succession has an objectively defined meaning which exists independently of the purpose for which it is used is mere conceptualism. 23rd July 2019 Renvoi

The problem of renvoi arises whenever the rule of the conflict of laws referes to the law of a foreign country or the conflict rule of the foreign country…. the question to the law of first country or to the law of some third country. in case if first country – it is called renvoi by remission In the case of third country it is called renvoi by transmission. The adjudicating forum is unable to make a choice of the appropriate law which is applicable. (read from module) pg 42 The classic illustration – a British citizen who dies interstate domiciled in Italy leaving movables in England. The English court has to adjudicate. The English conflict of law rules refers to the law of the domicile. Therefore Italian law should be applicable. But he Italian conflict rule refers to the national law, which may for the moment be assumed to be English law. to understand the characteristic of envoi, here we have a patent conflict of conflict rules involving a reference back, that is renvoi by way of remission to the forum) . had this interstate been a German national, he would have had a patent conflict of conflict rules involving a reference on transmission to German law. Related conflict of conflict of law is when in the same facts he was domiciled in NY according to English rule. The NY CoL rule says that the person is domiciled in England. It is not an apparent conflict but a latent conflict because both the rules were in apparent agreement but differed in what constitutes domicile. This situation can be conceivably resolved the ambiguity in three different ways: a) the court might apply the domestic rule of the foreign country, that is the law of a foreign country applicable to a purely domestic situation arising therein, without regard to the elements which render the situation a conflict of laws situation for the foreign law. Thus in this case, the English court might (if it adopted this method of solution) apply the purely domestic rule of Italian law applicable to Italians, disregarding the fact that the interstate was a British citizen. This method requires proof of the domestic law of the foreign country but does not require proof of its conflict rules. b) single renvoi - if the conflict rule of the foreign country refers back to the law of the foum or onto the law of the third country, the court might accept the reference and apply the domestic law of the furm or the domestic law of the third country. this process is called “accepting the renvoi”. Thus in this case, the English court might (if it adopted this method of solution) the English court might apply the domestic law of English law disregarding the fat that the intestate was domiciled in Italy. This method requires proof of the conflict rules of the foreign country relating to succession but does not require proof of the freeing rules about renvoi. This method may conveniently be called the theory of partial or single renvoi.

24th July 2019 c) Total or double renvoi – Practice determines whether the court adopted which method. The court might decide the case in exactly the same way as it would be decided by the foreign court. Thus in case of a British citizen dying intestate domiciled in Italy leaving movables in England, the English court would decide the case as it would be decided by the Italian court. If the Italian court would refer to the English law and interpret that reference to mean English domestic law, then the English court would apply English domestic law. If on the other hand the Italian court would refer to the English law and interpret that reference to mean English conflict of law, and would “accept the renvoi” from English law and apply Italian domestic law, then the English court would apply Italian domestic law. The method requires proof not only of the conflict rule of the foreign country relating to succession but also of the foreign rules about renvoi. In spite of its greater complexity seems to represent the present doctrine of the English courts at least in certain context. The third method is complex but represents the present doctrine of the English court because takes into consideration all the aspect that might be involved towards one particular consideration. The third method is a total rule. Historically, the questions of the validity of the will and succession led to the foothold of rule of renvoi in in English law. but later also helped in cases of determining the validity of marriages. Difficulties in the application of the total renvoi Pg 48 Unpredictability of result – the doctrine makes everything depend on “the doubtful and conflicting evidence of foreign experts”. Moreover, it is peculiar that this theory of renvoi that it requires proof not only of the foreign choice of law rules but of the foreign rules of renvoi. In continental European countries, the decided cases of renvoi at least of courts of first instance are not binding as authorities to be followed and doctrine changes from decade to decade. The difficulty is not confined only ott he judge. It also confronts lawyers advising his clients for he ahs to investigate not only the relevant domestic rule but also 1. the choice of rule of the foreign law 2. the prevailing theory of renvoi in the foreign country 3. the domestic rules of the foreign law it can be said that the lawyer cannot advise with confidence to his client. He cannot tell what evidence of foreign law may have been collected on the other side. th

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b) National law of British citizen: (from the module) which refers to the law of the domicile has been the conflict between English law which…….. US of America and c) circulas inextricablis is to make the decision turn on whether the foreign court rejects the renvoi doctrine or adopts a theory of single or partial renvoi. If there is a situation where even a foreign court adopts the doctrine of total renvoi, logically speaking there will be no solution resulting in circulas inextricablis. But academically it has been emphasised that this difficulty, unlike the first two is more academic than practical. The justification of the statement lies in the fact that once the domestic forum assumes itself to be the foreign forum even by the practice if total renvoi, the forum will look into the matter as foreign forum in fiction, whether it will avoid the CoL rule or look into the CoL rule and adopt total renvoi. The chances of ending up in a perpetual circle is lesser if we look at total renvoi in practical sense. Still the difficulty cannot be entirely written off. It depends on many factors including the foreign expert’s evidence and the approach taken by the forum applying the total renvoi doctrine. Adjudications which maybe related with Renvoi If we look at the procedure adopted and the conflict existing… not looked at the problem as the problem of renvoi… or the three problems we discussed but he problems suggest that it is a problem of renvoi. Collier v Rivaz pg 43 T, a British subject of Irish domicile of origin and subsequent and subsequent English domicile of choice, died domiciled in Belgium in the English sense but not in Belgian sense….. as required by Article 13 of the code Napoleon ( since repealed).it required the person to take permission from relevant authority established according to Code Napoléon in Belgium. He left a will and 6 codicils. A will and 2 codicils were executed in the form required by Belgium domestic law. 4 codicils were executed in the form reqired by the English domestic law but not in the form required by the Belgian domestic law. the question before the court was whether to apply the English or the Belgian law for the executions of the will and the codicil. The wills ns the codicils were also executed in a particular fashion. The intention of the testator was also split in this case. Evidence given that by the Belgian law, the succession to foreigner’s property in these situations were governed by the laws of their own country (Belgian law suggests application of the law of the country of nationality of the person) . The eventual outcome was the English court admitted the will and all 6 codicils to probate. Though renvoi was not mentioned but he problem was one of renvoi and the

method

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suggested/discussed above. Sir H. Jenner admitted these codicils to probate remarking that “ the court sitting here to determine it must consider itself sitting in Belgium under the peculiar circumstances of this case.” In this he did not consider whether the Belgian court would accept the renvoi or not. Though this case was disapproved in another case, that is Premer v Freeman (1857), but the method adopted in Premer v Freeman and the analysis of the outcome done was not as clear as we want it to be as far as the problem of renvoi is concerned. Re Ross T, a British subject of English domicile of origin dies domiciled in Italy, leaving movables in England and Italy both, and immovable in Italy. By her will, T gave her property in England to her niece, X and her property in Italy to her Grandnephew, Y with ….. to his mother, X for life. T’s only son, A claimed that by Italian domestic law, he was entitled to one half of her property. Generally, it would have been subject to Italian law if English CoL is applicable. The validity of his will was governed by Italian law as law of her domicile in respect of her movables and Italian law in respect of immovable (lex situs). (At that point in time the Italian law provided that you cannot will away the entire property if you have a son.) The Italian referred to the law of nationality. Evidence was given that Italian courts would refer to English law in respect of T’ movables and immovable and would not accept the renvoi. The outcome was that the English domestic law applied and A’s claim was rejected. 1. application of total renvoi 2. first method of resolving the problem of renvoi has been applied

26th July 2019 Re Annesley 1926 CH 692 T, A British subject of English domicile of origin died domiciled in France in the English sense, but not in the French sense. The problem again was statutory because she had not obtained permission from the authority to establish her domicile in France as required by A13 of the code Napoleon. She left a will, which purported to dispose off all her property. By French law, T could only dispose off one third of her property because she left 2 children surviving her. The evidence given in the case was that the French court would refer to English law as T’s national law and would accept the renvoi back to French law. Therefore French domestic law was applied and T’s will was disposed only till 2/3rd of her property. Re O’Keefe CH 124

T, a British subject was born in India in 1870, acquired Italian domicile of choice and lived there until her death intestate till 1937. She left two sisters of the whole blood and a brother and a sister of the half blood. T’s father was born in 1835 in County Claire (Ireland) and T’s domicile of origin was consequently in that part of Ireland, which in 1935 was called Ire and is not called the republic of Ireland. Therefore, the conflict is between English and Italian law. Evidence was given that the Italian courts would refer the succession to T’s movables to the law of the country to which she belonged at the time of her death. By some understanding the court has construed the Italian conflict of law rule relating to nationality as T belonging to Ire. Although T had never been to Ireland and was not a citizen except for a short tour in 1878. As the law of the Ire was applied, the brother and sister of half blood were entitled to share equally with the two sisters of the whole blood. This adjudication can be criticised if not on the method applied but on the question of nationality and domicile.

Substance and Procedure Pg 51 Substance and procedure determines in the initial stages in any case about which law will be applicable. Generally lex fori is applicable. In cases of substantive law, lex cause is applicable. But this is easier said than done. CrPC is generally considered as statute book consisting of procedural rules. But it has some rules in it that are to be considered as substantive right associated with the litigant. Example – S 96 right to first appeal. S 61 whole of the salary of the person cannot be attached. Its characterisation would mean that if the English court is the executing court, when it comes to execution proceeding, are they procedural or substantive? Generally speaking they are procedural. If the same English forum would be asked in a matter involving foreign element. The judgement debtor is a person belonging to Indian domicile and the property to be attached is also situated in India. Let us assume that according to English law any property can be attached (contrary to Indian law). For this matter, the English court will have to characterise as to which property can be attached hence substantive law (lex cause). While procedure is governed by the lex fori, matters of substance are governed by the law to which the court is directed by its choice of law rule (lex cause). The difficulty is applying this rules lies in discriminating between rules of procedure and rules of substance. It has to be kept in mind that the distinction is by no means clear-cut. In drawing the distinction, regard should be had in each case to the purpose for which the distinction is being used and to the consequences of the decision in the instant context. The primary object of this rule is to obviate the inconvenience of conducting a trail of a case containing foreign elements in a manner with which the court is unfamiliar. If therefore, it is possible to apply a foreign rule or to refrain from applying an English rule without causing nay such inconvenience, those rules should not necessarily for the purpose of this rule be

classified as procedural. The distinction has to be made in a way that a particular rule does not have to be called necessarily procedural. 27th July 2019 ……and in what order. Thus, if lex cause provided that only the mortgage debts are to be satisfied primarily out of the mortgage property. This does not prevent the forum from ordering the satisfaction of such debt out of the debtor’s property generally (because the lex cause here has chosen the word primarily, that is to say as far is possible). Where the executing court moves beyond the mortgage property, if the question before the court is in what order? Then the court will apply lex fori because the lex cause is silent. But there is a contrasting rule as well. If the lex cause provided that only the mortgage property was liable for the debt, this would amount to a rule of substance to the effect that by the lex cause, the debtor was under no personal liability and such a rule would be applied by the forum because it is a rule of substance. When both the parties were entering into the mortgage agreement, they determined their rights and liabilities in advance and the rule supports the substantive right in the hands of both. Apart from the applicability of lex fori and lex cause, this distinction of substance and procedure also determines whether amendment, if any, will be applicable with retrospective effect. To understand the applicability, some legal concepts such as parties to the suit, evidence, rules relating to limitation, particular rules are being characterised as substance or procedure. Limitation law is generally called procedural is because it bars the remedy. Extinguishment of right – law relating to adverse possession by prescription. The second situation is clearly substantive because there is a creation and extinguishment of rights. the latter will be classified as substantive and hence lex cause will be applicable. As far as substance and procedure is concerned, the questions that might relate to remedy, generally is a matter of procedure to be determined by the lex fori. Thus, if the claimant is by lex cause entitled to only to damages but if by English law entitled to specific relief, the latter type of remedy is available in England. Conversely, an English court will not grant specific relief, where to do so is contrary to the principles of English law (certain types of reliefs are not granted as a matter of right in the name of being against the public policy, like injunction is a remedy available in specific relief in India as well as England. An injunction granted in a case of specific service that results in specific performance of the contract, will not be granted as this

impliedly results in the specific performance of the contract (in context of service with negative stipulations). Specific performance is almost impossible. 29th July 2019 If a remedy is discretionary under the English law, it cannot be demanded as a matter of right even if it is provided as a matter of right in Lex Causae. Parties – pg 53 However there is no reason why an entity which is considered as a legal person under the law of the country where it belongs, should not be able to participate in English proceeding even though it has not been expressly incorporated. There are two cases Bumper development corporation v commissioner of police for metropolis 1991an Indian temple which was recognised as having legal personality under Indian law was permitted to sue in English proceedings not withstanding the fact that the temple which was “little more than a pile of stones” lacked the basic characteristics of legal person under English law. Who are the parties to the proceedings is determined by the lex fori and the status of the parties to the proceedings will be determined by the lex causae. Oxnard Financing SA v Rahn 1998 Vol 1 WLR pg 1465 CA It was decided that a partnership which though not a corporation had legal personality under Swiss law could be sued in England either by reference to the partnership name or by reference to the names of its members. Evidence It is the lex fori which governs the court. Ex – whether a witness is competent or not, whether certain matters require to be proved in writing or not, whether certain evidence prove certain facts or not. That is to be determined by the law of the country where the question arises. ……. (pg 54) Admissibility – Witnesses – pg 56 Always read the provision before coming to a conclusion (even when you remember this word by heart). 30th July 2019 Burden of proof The courts have been almost unanimous in saying that during the framing of the issues, the burden of proof is considered to be tentative and can be reconsidered at

the evidence stage of the trial. This is considered tentative because it is based on contrasting pleading of the parties and lil bit on the documents that the claim. Also because BOP might ultimately determine the outcome of the case. Another example in our domestic legal system – When we talk about proved, disproved and not proved in the IEA, if we begin with whether an issue related to evidence has been proved in the court or not, that depends on our understanding of framing of issues and who has the onus of proving. If the onus is on the plaintiff then it will be considered proved on the basis of leading evidence. In defence evidence, the defendant will have the chance of disproving it. If the onus was on one of the party and he did not lead the evidence accordingly, the curt will decide on the basis of evidence on record by the plaintiff. Those

aspects

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affects/determines the outcome of the case. Generally, burden is determines while framing of the issues on the basis of the pleading of the parties. Although there is some authority for the proposition that at common law, question relating to the BOP are matters for the lex fori, but there is much to be said for treating them as substantive because the outcome of the case can depend on where the burden lies. As Lorenzen, one of the leading writers on the subject says, “the statement that courts should enforce foreign substantive rights but not foreign procedural laws, has no justifiable basis if the so called procedural law would normally affect the outcome of the litigation.” Restatement - BOP is a matter of lex fori but where the primary purpose of the rule as to BOP in the lex causae is to affect the decision of the issue rather than to regulate the conduct of the trial, it will be applied in preference to the rule in the lex fori. Examples – this principle ahs been applied in many context including American cases on the Burden of proving and disproving, contributory negligence. In the case of a contact, the law governing the contract under the Rome convention on the law applicable to contractual obligation 1980, given effect in England under Contracts (Applicable Law), 1990 applies to the extent that it contains, in the law of contract as opposed to the law of procedure, rules which determines the BOP. In case of a probate petition relating to he state of the deceased in a civil matter, might have some overlap with public matter, only where the procedural aspects of Indian succession act are exhausted then only Indian contract act can apply in a probate manner.

Presumptions There are, generally speaking, three types of presumptions: 1. presumption of fact 2. rebuttable presumption of law

3. irrebuttable presumption of law In order to determine if presumptions are rules of substance or rules of procedures, it is necessary to distinguish between the three types of presumption. Presumption of fact arise when on proof of certain basic fact, the trial of fact may but need not find the existence of a presumed fact. Presumption of fact may have no effect, strictly speaking according to law, on the outcome. The presumption of fact does not have any legal effect at all. so we do not consider it here. It will be classified as lex fori. So far as presumptions of law are concerned, there might be situations where specific law, like the Rome Convention to contracts, that the special law determines the presumption. And as far as the special rule is concerned, will be considered as substantive and not procedural. However, this kind of rule in special law does not create any distinction wrt rebuttable and irr-rebuttable presumption of law and appears to apply in both categories, generally is substantive. However, the distinction does need to be observed in considering the position at common law. Ir-rebuttable presumptions of law – when on proof of the basic facts, the trier of facts must find the presumed fact in any event. Section 184 law of property act 1925 – where it is uncertain who died first. It would be presumed that death occurred in the order of seniority. Trier (sequence or the number of) of facts that maybe proved here in a trial. It has to be classified as substantive. It is now generally agreed that even for the purposes of domestic law (as well as for Conflict of laws), ir-rebuttable presumption of law is a rule of substance. 31st July 2019 The difficulty is more than the previous two presumptions. It has been divided into two sub categories. One has to be declared as substantive and the other part is open. Rebuttable presumptions of law arise when on the proof of basic facts; the trier of fact must find the proved fact unless the contrary is proved. For the purposes of conflict of laws, they must be sub divided into those that apply only in certain context and those which apply in all kinds of cases. This subdivision might not be found in domestic law. Example of the first type – cases of trust, advancement, satisfaction and particular example is the presumption contained in S 2 of the perpetuities and accumulations act 1957. The presumption is to the effect that a female under the age of 12 or over the age of 55, cannot have a child. It is a rebuttable presumption because it can be disproved. This is the category of certain cases of particular facts and circumstance. These are so closely connected with the substantive rights of the affected parties that they are generally categorised as rules of substance. Then the other type – the presumption of fact which apply in all kinds of cases – marriage, legitimacy and death. It is uncertain whether such presumptions are rules of substance or rules of procedure. In conflict of law cases, it is still left open

to be determined by the court whether it will consider it substance or procedure. We will go about it on the practice of the court in domestic law. it will depend on the proof of basic facts. Question of benefit to the family as to perpetuities is a substance. Cases such as marriage, legitimacy, death are rebuttable presumption have not been for certain been categorised as substantive or procedural. In cases involving presumptions of marriage, the courts have generally applied lex causae as the applicable law here. Whenever the law is proved,….. but where the matter is related to cohabitation, the right of the parties. The basic rule and acts is diverse, in such cases the court has considered and applied, the law of the forum. There is certainty only in this particular example. Statutes of limitation is the last sub category- when the question is about statute of limitation, the statute and its roots are considered to be procedural and hence lex fori is applied. But we are aware that even statute of limitation is of two types. One provision may result in the bar if remedy and another resulting in the extinguishment of right. The rule only barring the remedy, is considered one of procedural. The right is terminated wrt a property. Here the word immovable is not used. 1st August 2019 English cases Baschet v London Illustrated Standard 1900 Vol CH 73 (nature of remedy) A, the owner of a French copyright, brings an action against X in England claiming various remedies for infringement. In France, A could not have obtained an (interim) injunction against X. in England, A can claim an injunction against X. Temporary injunctions are procedural in nature so he can obtain those injunctions in an English court. Injunction are not available in cases where the injunction which would result in specific performance of a contract having negative stipulations. In this case, it would be considered substantive and not procedural. English court would never grant such an injunction (even if it is lex causae) because it has another nature of having a remedy which cannot be provided without following the principles of natural justice; and interim injunction is granted in prima facie facts of the case. This example is an exception to calling interim injunction as procedural ( it is substantive here). Phrantes v Argenti (nature of remedy) A and X are domiciled in Greece. A is the daughter of X. A, who as just been married, claims that by Greek law X is under an obligation to provide her with a dowry. It is found by the English court that this remedy is dependant on the discretion of the court in Greece. And that discretion of the court has also to be exercised keeping in

mind the economic status of the father, the dependency and obligation of the father towards other children. The case was dismissed by the English forum because the nature of the remedy is discretionary and procedural. Because the so called substantive part 1 (it is not substantive) of the Greek law was discretionary, so the nature of remedy suggests that lex fori will be applicable. In this context the English court found that the claimant is remediless and that is why it was dismissed. Remediless in the sense that there is no parallel in the English legal system which could have given relief in this case. She has a remedy before the Greel court. Banque Enternational Commerce de Petrograt v Goukassow 1923 KB CA A company, which was incorporated in Russia, is dissolved by a Russian decree. This decree is recognised in England so tat according to English law the company ceases to exist. The decree is not recognised in France so that the company continues to exist. Matter is about the recovery of debt and the matter of recovery of debt is determined by French law but the forum is English court. The case is not maintainable in English forum because the party does not exist. When a suit comes before the court in a purely domestic (Indian) scenario, there are preliminary enquiries done by a court even before the summons are sent (Order VII Rule 11). The court in an adversarial system requires 1. Jurisdiction 2. Reliefs claimed by the party/causes of action 3. Whether it is barred by any law in force. No decree is passed in favour or against. In this case the outcome is that the suit will not be maintained in England in the name of the company to recover a debt governed by French law. For the status of the party, the lex causae is Russian law (company incorporated in Russia and dissolved by Russian decree). The French law is lex causae only for the recovery of the debt. O’Callaghn v Thomond 1810 (English forum) pg 53 Person Y in Ireland obtains a judgement against X which he subsequently assigns to A. By an Irish statute such assignments are permitted and the assignee are entitled to sue in their own names. By English law, an assignee can only sue the debit by joining the assignor as a party to the action. A sued X in his own name, whether it will be sustained? There is no assignment of a debt when there is no remedy in a court. Both substantive so the English forum allows A to sue in his own name. (missing parts)

1

English forum in this case did look upon the law in Greece.

2nd August 2019 The Mary Moxham 1874 X’s ship damages A’s pier in Spain because of the negligence of the master and the crew; torts case. Les luci dalecti (the place where the tort was committed). By Spanish law the master and the crew is liable for the damage but X is not. By English law, the master, crew and X are all liable under joint and severable liability. A wants to claim against X as well. Would there be a claim against X in English forum? NO because as far as parties in this case is concerned, it is related to liabilities. Something which affects the rights and liabilities. In English law if he is not charged then the proceeding in itself becomes bad in law. X cannot be sued in England because both the rules of law relates to rights and liabilities so both substance so lex causae. Kamouh v Associated industries international ltd 1980 K had a claim against A and co for 100,000 pounds. In Nov 1973, K left is residence in Paris and disappeared. In Feb 1974, a court in Lebanon appointed X as administrator of K’s property, K being declared as absentee under laws of Lebanon. In Lebanese law, X could peruse K’s claim suing on his own name. in English law, unless an absent claimant is presumed dead, there is no way in which another can sue on his behalf. X’s claim will be dismissed in England. The issues where related to procedure hence English law will be followed. Bristow v Sequeville 1850 A sues X in England to recover 200 pounds paid by A to X for shares in a projected foreign company. To prove payment of 200 pounds, A tenders unstamped receipts given in Prussia. By Prussian law, such receipts are inadmissible in evidence. In English law, they are admissible. The receipts are admissible because the admissibility of evidence is lex fori. Fitz Patrick v International R Y 252 NY 127 Both parties belong to NY. A sues X in NY for personal injuries inflicted by X upon A in Ontario. By NY law, A can only succeed if he can prove that he was not guilty of contributory negligence. By Ontario law, X liability is reduced if her can show that A was guilty of contributory negligence. Claimant has to prove two things according to NY law, that injury and the no contributory negligence on his part. According to laws of Ontario, the claimant has to prove only the first part and the BOP will shift on X. Here the BOP is affecting the outcome only in the sense that it is heavier on the claimant in NY law than in Ontario law. So the outcome will be affected thus lex causae will be applicable therefore Ontario law.

Re Cohn case (discussed in characterisation) Both the rules, English and German, were substantive because they had the element of being considered as a presumption. British Linen Company v Drummond 1830 Person X is indebted to A under a contract governed by Scots law. By Scottish law, A’s right is extinguished after 40 years. By English law, A’s remedy is barred after 6 years. After 10 years, A sues X in England. The action fails. Statute of limitation, lex fori is applicable. The Foreign Limitation Period Act 1984 The general rule - barring one exception that is public policy, all claims under FLPA relating to statute of limitation, the foreign law will be applicable. Same scenario, the remedy will be available after 10 years but in the same scenario, if the Scottish law is applicable, will the claimant’s claim be allowed after 25 years? NO, the reason of barring of remedy is under inconvenience is caused to the court as well as the defendant although the Scottish law allows it. Lex fori.

3rd August 2019

Jurisdiction in Claims in Personam Jurisdiction whether provided by the domestic law of the country. the emphasis is towards the exercise of jurisdiction which includes the determination plus the conduct of the proceedings. Case which falls within conflict of laws, the exercise of jurisdiction is directly connected to the efficacy of the outcome. In a purely domestic scenario when we look at a particular adjudication form the POV of execution we find that the court that passes the directly is the executing court. We find in our purely domestic system that many a times the property in question is outside the jurisdiction of the court like in case of attachment of property where it has to go through the district court of another jurisdiction for the purpose of efficacy. Jurisdiction of the court in the case of immovable property in a domestic scenario, it is said that the court having jurisdiction where the property is situated is the proper jurisdiction. There is not much of a problem in domestic scenario because of the existence of cohesive rules. The decree of the order is executed by the court which passed the decree.

So there are situations in executions of order or decree where there have been transfer of decree for execution due to efficacy. That is how even the question in conflict of law cases is approach. Mostly by the domestic rule of the legal system in question and at times with a particular statute that provides for the exercise of jurisdiction. Such statute arise out of Brussels and Lugarno convention relating to exercise of jurisdiction and execution of judgments relating to civil matters. These conventions were directed to the determination of the jurisdiction of domestic courts relating to civil and commercial matters of the parties domiciled in contracting states. England was party to the conventions and it also passed an enactment of 1982 with the ratification of the convention. The statute will be applicable where the parties are domiciled in contacting parties of the convention. When one party is not a contracting party, then the 1982 act will not be applicable but common law rules. The English enactment is civil jurisdiction and judgement act 1982 to implement the obligations under the Brussels and Lugarno conventions. What do you mean by claims in personam? Positively – as a claim brought against a person to compel him to do something for example, the payment of a debt, specific performance of a contract, damage to be paid for tort or breach of contract or to compel him not to do something where sought in a civil proceedings. Negatively – any claim which is not an admiralty claim in rem. Admiralty claims are also of two types – maritime claims against property which are evoked before the territorial jurisdiction of an English court, a probate claim or an administration claim (has an overlap with the public law of a particular country) The specific exclusions that might be considered as a matter falling within civil or commercial matters but are excluded in claims in personam. Proceeding for divorce or judicial separation or for a declaration of nullity in marriage or a proceeding in bankruptcy or regarding the custody of minors or to set aside an arbitral award. Statutorily speaking these matters are excluded because the conventions have excluded them and therefore they are not included in the 1982 statute. They have been determined for the purposes of looking at the rules of either the convention or the 1982 enactment where the questions of jurisdiction can be answered in a certain way. So we go on to determine how it can be said that jurisdiction can be exercised by an English forum. Rule 22Part one talks about HC Jurisdiction to entertain claim in personam only if the defendant is served….. if the HC or the courts functioning under the jurisdiction of the HC issue a process and it can be served upon the defendant then the court has jurisdiction.

Part two – where a claim relates to civil or commercial matters.. the HC has jurisdiction to entertain in accordance with the provision of the conventions The second part proposes to fully implement the object and purposes of the convention in the cases of conflict law issue. The Part one is more of a common law rule which fills wherever the convention is silent. If a conflict of law issue is under consideration and it does not fall under the ambit of the convention (or the enactment), then in those matters having issue of CoLs if the court is capable of affecting the service of process on the defendant then it will exercise jurisdiction. Whether the defendant is the within he territorial jurisdiction? If he is not then if the service of the process can be effected on him or not? ----> yes. The vis e versa is also true. The common law practice as far as service of process is concerned. Includes the procedure followed by the court issuing the summons. There are two stages- 1. Issuance of the process and 2. Service completes the entire process If completed the defendant has to appear and defend his rights. In two circumstances the English court can exercise jurisdiction 1. matters falling under the conventions (and the enactment). Regional agreements between EEC and EU members. The efficacy of the conventions in terms of jurisdiction, avoids many of the problems related to the CoL once the jurisdiction is established. 2. In case of non contracting parties (or either party), the common law rules before the coming of civil jurisdictions rules determines whether the English forum will determines the jurisdiction or not.

5th August 2019 Article 16,17 and 21 of the Brussels Convention are important provisions that talk about jurisdiction. Characteristic of Rule 22 is part of the material. Matters where the 1982 enactment don’t apply where either or both the parties are not domiciled in the contracting state. There are two kinds of situation 1. Domestic Conflict of Law rule or the common law rule where the conventions and the enactment does not apply. 2. Where the conventions and the enactment applies. Rule 22 - It has taken into consideration the Brussels and Lugarno convention as well as the 1982 enactment.

General understanding w.r.t jurisdiction in England If a defendant can be legally served with a process in England, then the English court has jurisdiction. Rule 22 expresses the general principle. Serve of process is the foundation of court’s jurisdiction to entertain a claim in personam. When the process can legally be served on the defendant then the court has jurisdiction. Conversely, it is also true to say that where the process of the court cannot be served upon the defendant then the court can exercise no jurisdiction. Hence in proceedings in personam, the rules as to service define the court’s jurisdiction. Prior to the Civil Jurisdiction and Judgements Act 1982 coming into force, the position in England broadly was that the high court had jurisdiction over 1. persons who were present in England at the time of service of process. 2. In certain specified cases, over persons who were outside England. In the latter case, it was generally necessary for the permission of the court to be obtained for issue of process and its service outside jurisdiction. In each case the exercise of court’s jurisdiction was subject to discretion. The position following the incorporation of the conventions is substantially different. The mere presence of the defendant in England is no longer a basis of jurisdiction if he is domiciled in another contracting state. Where the conventions confer jurisdiction on the English court, its discretion not to exercise is severely curtailed. The origin of the 1968 convention lay in the notion that the ideals of the European Economic Community would be furthered by the greater facilitation of the enforcement of judgements between the member (contracting) states. But the 1968 and 1982 conventions also provide a detailed set of rules dealing with the circumstances in which courts in the contracting states may exercise jurisdiction in matters within the scope of the conventions. By contrast the ‘68 and ‘82 convention lay down a very elaborate system of jurisdictional rules to which the court in which the action is originally brought must adhere. This is a system of direct rules of jurisdiction. The primary basis of jurisdiction under the conventions over those domiciled in a contracting state is the domicile of the defendant.

6th August 2019 European court in Effer SpA v Cantler case no. 38/31 1982 ECR 25 The court emphasised that the rules on jurisdiction in the 1968 convention were designed in part to confer jurisdiction on national court which was best qualified to

determine a dispute. However, the application of the rules may lead to a claim that being subject to the jurisdiction of the court which does not have the closest connection with the dispute. Nevertheless, it is generally accepted that the jurisdictional rules of the 1968 convention and the Lugarno Convention are not subject to discretion in the national court to stay an action on the basis that the courts of some other contracting state are the more appropriate forums. Article 1 of the 1968 convention excludes certain matters from the scope of the conventions Matters which have been excluded Art 1 para 2 excludes 4 general categories – status of natural persons, bankruptcy, social security, and arbitration. These categories are excluded for two main reasons – social security fell within the borderline of civil and public law. Secondly, to exclude those cases where there was a great disparity between the contracting states in relation to both substantive law and private international law, particularly there were other conventions in force or in draft. It was thought that to bring these areas within the scope of the 1968 convention might interfere with the unification process being pursued in the European communities or at the international level. 1. Status and legal capacities of natural persons The most important criteria excluded by this provision in divorce but it also excludes judgments relating to violability and nullity of marriage, judicial separation, death, status and legal capacity of minors, custody and adoption of children, guardianship. They are only excluded if the proceedings deemed directly with these questions. If they arise only in an incidental fashion, a case will not be excluded from the scope of the convention. It also excluded matters relating to wills and succession because it was thought that the divergence in laws, especially in the relevant rules of private international law among the 1968 convention contracting states, was so great that it could be premature to include them before the rules of private international law have been unified. Took into consideration the Hague Convention to private international law. the expression “will and succession” covers all cases of testate and intestate including disputes as to validity or interpretation of wills.

7th August 2019 2. bankruptcy It induces the proceedings relating to the winding up of insolvent companies or other legal persons, reason of such inclusion was the great disparities in

national practice between the contracting states and also because of its proximity to public law and also because a draft bankruptcy convention was being negotiated and considered by the contracting states. ( disparity, proximity and drfat convention) 3. Social security This was excluded because in some countries it was a matter of public law and in others it fell within the borderline area of private law and public law. as a matter of fact, in some countries the matters relating to social security were within the jurisdiction of ordinary courts and in others within the jurisdiction of administrative tribunals and sometime, both. 4. Arbitration it was excluded because of the international instruments dealing with the subject which were in force or in contemplation.

Two adjudications of the European courts Mark rich & co A. G v Societa Italiana P. A (Atlantic Emperor) 1989 The case was sent to he European court by way of reference from the UK court. Italian sellers sold a cargo of crude oil to Swiss buyer. The contract was made by the exchange of telexes, one of which (from the Swiss buyers) contained a provision for the applicability of English law and London Arbitration in case of dispute. The Italian sellers did not reply to this telex. Following delivery of the crude oil, the buyers alleged that the oil had been contaminated with water. The claimants will be the Swiss buyers. They would like to initiate arbitration in the ordinary court of England for jurisdiction since the Italian are contending. They find that the Italian sellers sued first in the Italian courts claiming a declaration that they were not liable to the buyers and denied that they were bound by the arbitration clause contained in the telex. The Swiss buyers commenced and arbitration claiming damages and sought an English proceedings the appointment of an arbitrator. The Italian sellers argued that under Article 21 of the 1968 convention they were entitled to stay because the Italian proceedings had priority. This is on the basis of the Italian proceedings being the prior suit. In the first reference form the UK court, on the 1968 convention, the European court (Case C -190/89 1991 vol 1 3855) held that by excluding arbitration from the scope of the 1968 convention in the ground that it was already covered by international conventions, the contracting states intended to exclude arbitration in its entirety including proceedings brought before national courts. The appointment by a court of an arbitrator was covered by the exclusion because it was a measure adopted by the state as part of the process of setting arbitration proceedings in motion.

8th Aug 2019 (When the Italian sellers asserted that there is no existence of an arbitration agreement, it becomes a preliminary issue. Here it did not become a preliminary issue.) This (non applicability of the 1968 convention) was so even if the judicial proceedings necessarily involved the question of the existence or validity of an arbitration agreement. The test for determining whether the proceedings were outside the scope of the exclusion was the nature of the subject matter of the proceedings. If the subject matter of the proceedings was the appointment of an arbitrator, the fact that the court had to resolve a preliminary issue did not justify the application of the convention and it would be contrary to the principle of legal certainty for the applicability of the convention to vary according to whether there was a preliminary issue. The actual ruling in this case was the narrow one that the exclusion of arbitration in Article 1 (4) extends to proceedings before a national court concerning the appointment of an arbitrator even if the existence or validity of an arbitration agreement is a preliminary issue in that litigation. Compare this with another European Court adjudication Van Uden Maritime BE v Decoline C-391 95/95 (1998) ECR Vol I 7091 One of the questions in this case was whether the jurisdiction of national court to order provisional measures in support of arbitration was within the scope of the 1968 convention or excluding because of Art 1(4). The European court held that proceedings to obtain provisional measures in aid of arbitration were not excluded. The court said that the critical question was the nature of the rights which the proceedings sought to protect. Where the subject matter of the application for provisional measures related to a question which fell within the scope ratione matrix (subject matter) of the 1968 convention. The convention was applicable even if arbitration proceedings had been or were to be commenced on the substance of the case. The court also said that where the parties had validly excluded the jurisdiction of the courts in disputes arising under a contract and had referred the dispute to arbitration, there were no courts which had jurisdiction under the convention as to the substance of the case. Consequently it can be said that both cases emphasise that the exclusion of arbitration from the scope of 1968 convention depends on the subject matter of the proceedings.

13th August 19

Why is the understanding different? This understanding of domicile has to be based on some common understanding of domicile which is acceptable to the contracting states. The concept of domicile is in existence almost everywhere. Domicile– what is the common law position? The case with domicile is similar to application of conflict of law rules. Two cases – cases where conventions and enactment are applicable and where they are not applicable (in which case the common law of Britain is applicable) ……..to determine whether a person is domiciled in one of the contracting states or in particular contracting state and such question. In the former case, it will be preliminary enquiry to determine the application of the convention and the enactment. In the latter case, it will be both a matter of jurisdiction and the application of the relevant law. ….. this was so because among other reasons, it was thought that a new uniform law would be in a better position to define rather than an jurisdiction and judgement conviction. Among the original contracting states, the domicile of an individual was close to the notion of habitual residence, although its meaning differed between the states. Similarly in case of corporations, the 1968 convention assimilated domicile to the seat of the corporation. But the original contracting states again had differing approaches to the determination of the seat. Consequently, the 1968 convention limited itself in providing in A 52 and 53 (1968) rules regulating what law would determine the domicile of an individual or corporation for the purposes of the convention. Lugarno convention has identical provision. Article 52 of the 1968 convention provides that in order to determine whether a party is domiciled in the contracting state whose courts are ceased of the matter, the court has to apply its internal law. for applicability of the lex fori (we can say) two requirements are to be set aside – 1. The claimant has to be domiciled in the state where he has brought the action and 2. the court is ceased of the matter then the court will determine the domicile of both the parties through its internal law. If the parties are not domiciled in the state whose courts are ceased of the matter then in order to determine whether the party is domiciled in another contracting state, the court is to apply the law of that other state. The second part is an exception to the general rule, that is lex fori. Even the first part is an exception to the general rule because the forum is English. The common law understanding of domicile in the UK before the 1982, would have produced serious imbalance because the traditional concept of domicile with its emphasis on permanent home would have excluded many persons settled but not domiciled in the UK from the provisions of the 1968 convention and included many persons settled outside but domiciled within the UK. Permanent home does not mean owing a residence and then living them. It has heavy reliance on intention also called animus mantaer.

Accordingly, it was agreed in the negotiations for accession to the convention that the UK and the Republic of Ireland would include in their legislations for the purposes of the convention a definition of domicile, which would reflect more the concept of domicile understood in the original contracting states. This was effected in the jurisdictions and judgements act 1982 by a definition of domicile of individuals based on a combination of residence in and substantial connection with the UK. By this enactment, there are two understandings of domicile within the UK. What are the differences? 1. there is no question of the need for a permanent home in the 1982 act. 2. The concept of domicile of origin has no role under the 1982 act. 3. Under the Act, it will be possible for a person to have more than one domicile whereas at common law, it is not possible. At common law the question where a person is domiciled depends on English law as the lex fori. Whereas under the convention scheme, the UK court must apply the law of another contracting state to determine whether a party is domiciled in that state.

Forum non convenience and jurisdiction agreements Jurisdiction agreement has been facilitated in the 1968 and 1982 instruments. The questions related to jurisdiction has been determined through domicile od the defendant and other method. The determination is settled in the case of contracting states. But is becomes a problem in cases where the conventions do not apply. Will it be tolerable that two courts of similar jurisdiction are trying matters between the same

parties

at

the

same

time?

14th August 2019 Forum Non Conveniens and Jurisdiction Agreements The understanding is not dependant on the conventions but the jurisdiction of the courts of the contracting parties. Here we don’t have settled rules. The jurisdiction id determined in the case where the court says it is the natural forum or where it is a forum conveniens. The court does not interfere until the question of jurisdiction is such that it might transpire that there was no jurisdiction. Forum conveniens was the practice in England. Forum non-conveniens was developed in Scotland which was successively admitted by the English courts. The doctrine of forum non conveniens is that some other forum is more appropriate in the sense of more suitable for the ends of justice was developed by the Scottish courts in the 19th centaury and was also adopted with some modifications in the

USA. The Scots rule is that the court may decline to exercise jurisdiction after giving consideration to the interests of the parties and the requirements of justice on the ground that the case cannot be suitably tried in the Scottish court not full justice be done there but only in another court. In distinction to this forum non conveniens, for conveniens has always been a relevant factor in exercise of the discretion to grant permission to serve out of the jurisdiction but until 1984, the English courts refused to accept that he jurisdiction to stay actions commenced against defendants who were sued in England as of right court be based on forum non conveniens grounds. Until the decision of house of lords in the Atlantic Star case 1984 AC Appeal, a defendant who sought to stay off English proceedings had a heavy, very heavy burden. The end result in inquiry of the court is the same (Whether the court will exercise jurisdiction or not, but the approach changes a lot). In the domestic scenario for the sake of uniformity and clarity, forum conveniens can be admitted and be in place. Before the case (Atlantic Star), in the case of Saint Pierre v South American Stores Ltd. 1936 Vol 1 KB 382 CA, Lord Justice Scot restated the principles on which the court acted. The effect of this was that a stay would only be granted if the continuance of the action would work an injustice in the sense that it would be vexatious or oppressive and if the stay would not cause any injustice to the claimant. The case although shifted a little bit from forum conveniens still there was a heavy burden on the dependant to get a stay from the forum ceased of the matter. In the Atlantic Star case, the majority of the HOLs held that although a plaintiff should notlightly be denied the right to sue in an English court, the words “oppressive and vexatious” should in future be interpreted more liberally in considering whether a stay should be granted. The court should take into account, the advantage to the plaintiff and any disadvantage to the defendant. The economic status will be taken into account in both the cases. In another case, Mac Shannon v Rockware Glass Ltd. 1978 AC 795, a friendly constituted HOLs went considerably further when all except Keith were in facvour of discontinuing the use of the words “oppressive or vexatious” all together. In this decision, Lord Diplock related the governing principle as being that in order to justify a state, two conditions had to be satisfied. One positive and another negative. 1. the defendant had to satisfy the court that there was another forum to whose jurisdiction he was amenable, in which justice would be done between the parties at substantially less inconvenience and expense. 2. The stay was not to deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of the English court. The second condition, though there is a shift from the first condition, the positive one is still in favour of the plaintiff.

To conclude the Atlantic star and Mac Shannon case, the HOLs declined to adopt the doctrine of forum non conveniens as a part of English law. However, in the latter decisions it was recognised that the reformulation in these decisions of the principles on which the English court acted was not far removed in practice from the doctrine of forum non conveniens. 16th August 2019 The shift from forum conveniens (if there is juridical advantage to the plaintiff then there is nothing wrong in it; discussed in Atlantic Star and Mac Shannon; how HoLs has changed its perspective of giving the advantage to the plaintiff) The shift has been accommodating; many a times the practice becomes obsolete and change is required – that is the diff between forum convenience understanding and the forum non convenience understanding. Lord Diplock takes the ultimate lead which shifts the English understanding from forum convenience to forum non convenience 1984 Abidin Deiver. When the case was decided, Lord Diplock had changed his stand radically and said that “as a result of successive decisions of HoLs commencing with the Atlantic Star case, judicial chauvinism (if something is in practice, our first instinct is to stick to it) has been replaced by judicial comity to an extent which I think the time is now right to acknowledge frankly his, in the field of law with which this appeal is concerned, indistinguishable from the Scottish doctrine of forum non convenience.” Applicability of forum non convenience, usage and where it does not apply Rules w.r.t forum non convenience 1. Principle subject matter examined under this rule may be described as the circumstances in which an English court has the discretion to exercise, or not to exercise, or to adjudicate upon a foreign court’s exercise of jurisdiction. 2. This understanding does not consider the cases where the answers to these questions (relating to jurisdiction) are derived from a contractual agreement, which designates the country or countries whose courts are to have jurisdiction to determine disputes (that is in cases where there are jurisdictional agreements between the parties). 3. Though the common law material treated under this rule covers a wide range of legal situations, the threads which links them is that because of the wide jurisdiction exercisable by the English court, recourse to the concept of natural forum for the litigation represents the principled and even handed means of deciding whether jurisdiction should be exercised. (This understanding has been introduced in some of the English cases because we are hovering between the old and the new doctrines where the issues are related to jurisdiction.) If the English court has been seized with jurisdiction by the service of process on the defendant who wishes to have the dispute the

dispute resolved in another forum, may apply for a stay of proceedings. The success of this application will depend in large measure upon the defendant showing that a foreign court is more appropriate than England for the trial of the proceedings. (There is no diff between natural and more appropriate, but when it comes to states, the English forum supports the more appropriate forum. The difference is that the word natural forum has a universal them to it; both the plaintiff and the defendant can use it equally in both contesting proceedings). If the claimant requires the permission of the court to serve process on the defendant out of the jurisdiction in order to institute the proceedings, the question whether the permission will be given or set aside upon application by the defendant will depend in part upon the claimant showing England to be most appropriate forum for the trial. If the proceedings is brought to the English court but the defendant in that action applies to the English court for an injunction to restrain his opponent from continuation of that action, it will normally be necessary though not sufficient condition for the grant of that injunction that England be the most appropriate forum for the trial. th

17 August 2019 Spilaita Maritime v Consulex Ltd. (1987) Appeal cases 460 This is considered as the leading case wrt most appropriate and natural forum. The common law rules were defined and this case referred to the English court as being distinctly or clearly as more appropriate than the competing forum or to another forum which prima facie is more appropriate for the trial of action. The test as laid down in this case directed attention to the question whether one court was clearly more appropriate than another and not to a search for a natural forum as such. But it must be acknowledged here that the terminology of the natural forum has become irresistible when it comes to determining which forum is a more appropriate forum. This convenient shorthand is now routinely used by the courts in comparing the relative strengths of connection between a court and a dispute. Finally in this case, the HoLs decided that Lord Diplock’s formulation in previous cases had given two great a prominence to legitimate personal or juridical advantage to the plaintiff in the continuance of the proceedings. The basic principle is that stay will only be granted on the ground of forum non convenience where the court is satisfied that there is some other available forum having competent jurisdiction which is the appropriate forum for the trial of the action that is in which the case can be tied more suitably for the interests of all the parties. Lis Alibi Pendens Literally means “a loss suit pending elsewhere”. Lis Alibi Pendens is something of a different nature but does it overlap with forum no convenience.

Forum non convenience main inquiry is on the determination of one proper jurisdiction. Lis Abili Pendens also does that but with the legal authority to avoid contradicting adjudications. We avoid is by applying it as a principle not to allow two proceedings with respect of two parties to continue in two different jurisdictions. But this is not Res Subjudice because the established set of rules in missing in case of Lis Abili Pendens. LAP is more driven by a legal principle in the municipal legal systems well as public and private international law systems. Section 10 CPC is Res Subjudice. There are special rules in the Lugarno convention and the 19.. convention for simultaneous action which are pending in states between the parties and involving the same or related cause of action. Although it was once thought that there were special factors in cases of LAP, it is now clear that the existence of simultaneous proceedings in simply an additional factor relevant to the determination of the appropriate forum. FNC does two things – 1. Determines jurisdiction 2. It aids the grant of stay of proceedings. LAP concerns itself only with the second part. Another difference between LAP and Res Subjudice is LAP when asserted before a particular forum, mostly the assertion is for an injunction against already existing prior proceeding or one against a future proceeding in another forum. In the case of Abidin Deiver, Lord Diplock said that where proceedings were pending in a foreign court between the parties and the defendant in the foreign proceedings commenced proceedings in England as plaintiff, then the additional inconvenience or expense which must result from allowing two sets of legal proceedings to be pursued concurrently in two different jurisdictions where the same facts would be in issue an the testimony of the same witness is required could only be justified if the would be plaintiff in England could establish objectively by cogent evidence that there was some personal or juridical advantage that would be available to him only in an English action and which was of such importance that it would cause injustice to deprive him of it. Thence only the English forum would grant injunction to stay proceedings in another forum.

20th August 2019 The proceedings have a character of moving forward in reverse. Now it has been confirmed that the principles enunciated in Spilaita maritime case apply whether or not there are other proceedings already pending in the alternative forum. Sometimes the foreign proceedings maybe of no relevance at all. For e.g. if one party has commenced the proceedings for the purpose of demonstrating the existence of a competing jurisdiction like that in the cases of negative deceleration or if the proceedings have been started and have had some impact on the dispute between the parties then this may have some relevance/ factor when considering

whether the foreign jurisdiction provides the appropriate forum. (The second aspect is that maybe proceedings have progressed to an advanced state. If that would have not been the case, then the English forum may have been the appropriate forum. But since it has happened, then the facts have significantly changed). The boarder understanding of principle non convenience is also applicable while determining the jurisdiction issues under Lis Alibi Pendens being asserted by either of the parties. Date of Seasin It is relevant because it is also a factor in determining the jurisdiction of a particular court where there is existence of competing jurisdiction in different countries. The understanding of Date of Seasin is different in different countries. Understanding in our legal system. As far as a civil matter is concerned it is understood that the court is seized of the matter when it issues the process of service to the defendant. In France, Italy Germany, Netherlands, an action is considered pending only from the date of service of proceedings. In other such as England and Belgium, an action in some purposes at least regarded as pending once proceedings are issued. Most of the conventions when they talk about Lis Alibi Pendens or Forum Non Convenience and the question is relating to which court proceedings are subsequent., when the court was seized to the court. This matter was taken to ICJ in Zelgar v Saliritri The European court held in this case that a common concept of Lis Pendens cannot be derived form national practice. Instead a court which has to consider whether to order stay of its proceedings must resolve the question according to the rules of the national law of each country whose court are alleged to be seized. The court first seized is the one before which the requirements for proceedings to be definitively pending are first fulfilled and those requirements are to be determined in accordance with the national law of each of the courts concerned. Jurisdiction agreements This understanding part of forum non convenience as well as independent of it. Rule 32 and its four clauses talks about jurisdiction agreement and both the situations that is the cases where the 68 and 82 conventions are applicable, the form and effect of jurisdiction agreement and also in case where no convention is applicable, English forum determines its own jurisdiction considering jurisdiction agreement between the parties and whether it talks about an exclusive jurisdiction or non exclusive jurisdiction. The relevant rules deals with the common case where parties to a contract in international trade or commerce agree in advance o the forum which is to have jurisdiction to determine disputes which may arise between them. three queston may arise in connection with such clauses

1. the contract may purport to confer jurisdiction on the English courts and the claimant may seek to invoke that jurisdiction. Whether the plaintiff maybe allowed o invoke the jurisdiction of the English forum will be determined in part by whether the 1968 convention or the Lugarno convention applies to the agreement. Of these conventions apply, it is to be kept in mind by the forum bound by the convention that the convention regulates the form of the jurisdiction agreement and to some extent even the content of the agreement. Clause 1 of the rule determines the entitlement of an English court to exercise jurisdiction on the basis of such agreement. 2. The contract may purport to confer jurisdiction upon the courts of another country and yet a claimant may commence or seek to commence proceedings in England. Whether the court will permit the action to proceed as a matter of common law and this aspect is examined in clause 2 of the rule. The clause 3 talks about whether the English court is obliged by the conventions to dismiss the action as per the requirement of 68 and Lugarno convention. 3. The third question relates with where the proceeding maybe brought in case of breach of an agreement – English or other foreign court? the principles which govern such proceedings maybe restrained by injunction are examined in clause 4 of the rule. It is simpler to say that a particular agreement is governed by the particular agreement and that determines the jurisdiction of the court. It becomes complex when we analyse jurisdiction agreements and find that the question is not about exclusive jurisdiction. (The jurisdiction agreement may have more than one jurisdiction). A lot of times jurisdiction agreements don’t form part of the contract itself but through another agreement though generally they form part of the contract. There are some international treatise that relate to enforcement and applicability of laws on particular contracts like Rome convention on the law applicable to contractual obligation. In England, it has been ratified and included in Contracts (Applicable Law) Act 1990. 21st August 2019 As far as the jurisdiction agreement is concerned, the chosen court maybe a court in the country of one or both of the parties or it maybe a neutral forum. The jurisdiction clause may provide for a submission to the courts of a particular country or to a court identified by a formula in a printed standard form such as a bill of lading referring disputes to the courts of carrier’s principle place of business. Further some jurisdiction clauses provide for the courts of a particular country to have non exclusive jurisdiction that is they confer jurisdiction on the courts of one or more countries without prejudice to the rights of the parties to sue in any other court which may have jurisdiction.

A jurisdiction agreement is invariably part of a wider contract. The rules governing the choice of law is not contained in the …. Which gives effect to the Rome convention on the law applicable to contractual obligations of 1980. The rules of the convention are not to apply to the agreements on the choice of court. Consequently, the English court is not required by the Rome convention to apply its rules (contract applicable law 1990) to jurisdiction agreements. But as a matter of common law, normally a jurisdiction agreement, like arbitration agreements which are also excluded under the Rome conventions, is governed by the law applicable to the contract of which it forms a part. Accordingly, as a matter of common law principles of conflict of laws, the law which governs the contract will also generally govern the agreement on the choice of court. This means that this law governs the construction and the interpretation of the agreement. It will also, in principle at least, govern the original validity of the agreement. It is a question of interpretation governed by the law applicable to the contract, or more accurately the law governing the jurisdiction agreement whether a jurisdiction clause is exclusive or non exclusive, whether proceedings are to be brought in a particular forum or simply confers jurisdiction on the court of a particular country. Some authorities on the matter suggest that he clause must provide in terms that the jurisdiction of the chosen court be exclusive but the true question is whether on its proper construction the clause obliges the parties to resort to the relevant jurisdiction, whether the word exclusive is used or not. Where the court finds that the agreement is for the non exclusive jurisdiction of the designated court, it cannot be argued that the institution of proceedings is a breach of contract and any application for a stay of proceedings in favour of that foreign court will be determined on the basis of the law laid down in Spilaita case.

Tharsis Sulpher Co v Societe Des Metaux 1889 Vol. 58 QB 435 A, an English company and X, an American company enter into a contact which provides that the parties submit to the jurisdiction of the high court in England and that person N of London should be the agent of X to accept service of process in its behalf (service of process within the jurisdiction). A brings an action against X for breach of contract and the court has jurisdiction in the case. Common law rule was also applied in this case. 22nd August 2019 Chaparral 1968 A, a Japanese company and X, a US company enter into as contract whereby A’s truck will tow excess oil rig from US to Italy. The contact provides that any dispure arising must be treated before the London Court of justice but does not make any provision of service related. The tow and .. are forced to take refuge in Tampa Bay,

Florida, US. Each alleged that it was the others fault. X brings an action in Florida and A brings an action in Florida. It was held by the english court that the court ay assume jurisdiction and gove permission to serve process n X in the US. Eleftheria 1970 A and co are the holders of bill of lading in respect of plywood shipped from Romania to England on-board a Turkish ship. The bills of landing provide that the disputes shall be decided in turkey in accordance with Turkish law. A and co bring action in rem against the ship claiming damages for breach of contact. Most of the evidence is available in England but Turkish law defers materially from English law I relevant respects. It was held by the English court that the factors tending to rebut and reinforce the prima facie case for stay are nicely balanced. So ultimately the English court stays the action in turkey. Analysis 1. it has not gone with the jurisdiction agreement in the BOL 2. Non applicability of the Turkish law and stayed the action on the basis of more appropriate forum They have done something more closely connected with the Spilaita case, although it is prior to that.

Continental Bank NA v Aeakos Compania Navaria A and Co, an American bank with the branch in London, lends money to X and Y. There is a ship, Z, of Seminarian and Liberian company owned and managed by Greek nationals who guarantee the loan, the loan agreement provides that the English court is to have jurisdiction over all disputes arising from it. X, Y and Z bring proceedings in Greece for damages for breach of business morality. A and Co then instates proceedings in England and applies for anti-suit injunction that is the stay of proceedings in Greece. 1968 convention will be applicable as both Greece and England are parties. It was held that the English court has jurisdiction by reason of Art 17 of the 1968 convention and the English court granted the injunction. Foreign Judgements Three questions in CoLs 1. Jurisdiction 2. Choice of law 3. Foreign judgements ( last page of the material on CPC) Recognition of the foreign judgement does not mean that enforcement is guaranteed.

In India recognition is automatic (Section 14 or fulfilment of the conditions of 13). Presumption in favour of foreign judgement. Enforcement (section 44A)- it is nowhere written that a foreign judgment will to be enforceable but it seems to facilitate enforcement. It is about reciprocity that is the old understanding of the doctrine of comity. The doctrine of comity has not ceased to exit but it has given way to doctrine of obligation in England but same has not happened India. Section 13 demonstrates the doctrine of obligation. But courts in India are not doing that. But we do not execute the foreign judgment to appease the foreign court in order for the foreign court to do the same. To say that a recognised foreign judgment is executable in India by way of an action brought in the court – common law Action in case of Summary suit (Order 37) is allowed in England. 26th August 19 Distinction between recognition and enforcement in the English legal system In England, the foreign judgement has no direct operation. Exception to this statement - 1968 and 1982 conventions. But still the conventions can be challenged on the ground of being against public policy. In India – S 44A CPC Common law rule – no direct operation for both recognition and enforcement. Thus it cannot be immediately be enforced by execution. This follows from the circumstance that operation of legal systems is in general territorially circumscribed. Nevertheless, a foreign judgement maybe recognised or enforced in England. The plain statement is while the court must recognise every foreign judgement which it enforces, it need not enforce every foreign which it recognises. No matter how attractive the statement is, it raises a question. Is there a diff between recognition and enforcement of a foreign judgement? The answer of course is in affirmative but the understanding is a thin one. Because the understanding is based on 1. The type/characteristic of the judgement or decree, 2. Who is using the foreign judgement and for what purpose, 3. The type of action which has been brought here relying on the foreign judgement. We have to analyse the situations with examples to understand this. In the first place, the person in whose favour the judgement is pronounced, may seek to have the judgement executed or otherwise carried out as against the person against whom it is given, when this the case, it is said that the claimant is seeking to enforce the judgement. 1. The case is not different when the plaintiff in the original or foreign proceedings being subsequently made a defendant in English proceedings in the same or related mater sets off the foreign judgment by way of counter claim or other gross proceedings of a positive sort. Not every type of judgement is capable of

enforcement in this way. A judgement dismissing a claim or a counter claim is not capable of enforcement unless it orders the unsuccessful party to pay cost as it frequently does. Nor is a declaratory judgement capable of enforcement……. Pg 79 (454)…………the unsuccessful party to the lis should pay the other costs. 2. The person in whose favour a judgment is given in a foreign country may seek on its basis merely to resists a claim here in the same or a connected matter. In this type of case, the type of judgment involved is largely immaterial. For instance, a may sue X in England for a debt and X successfully defends the action by showing that the matter has already been litigated in a foreign court which has found that the alleged debt does not exist and has in consequence given a judgment for X. in such a case, the situation indeed is that a party to English proceedings is relying directly upon a foreign judgment. But he is doing so merely to establish in negative proposition and seeks that recognition alone be accorded to that judgment. There is no question of enforcement. This is an example of a decree whose mere recognition is sufficient for the realisation of the rights of the party. The difference also lies on the basis of whether the judgement creditor is bringing an action in lieu of the foreign judgement. If he is then, it will be for enforcement or he is using it for defence ( as in the case of the second example). 3. the party against who a judgement is given, may seek to use that judgement or the fact that he has satisfied that judgment to resist a further claim by the party in whose favour the judgement was given. For example, a claimant may have brought proceedings in a foreign court but have obtained a judgement for less that what he had sought. If he brings a second set of proceedings upon the same claim, the defendant may seek to rely on the foreign judgement in support of either of two answers of the claim. He may seek recognition of the judgement if it contained a discrete ruling in his favour dismissing part of the claim just as in the previous example. But he may also rely upon the existence or the satisfaction of the judgment as a bar to further proceedings on the same claim (res juducata) or on a separate claim but which should have been advanced, if at all, in the proceedings in a foreign court. This example also involves the recognition of the foreign judgement but its effect is to treat the foreign judgement as a final adjudication wrt the issues which arose between the parties. Automatic enforcement is not applicable in the Indian legal system unless there is a reciprocal arrangement with a foreign legal system – Section 44A Thus an action has to be brought which would require proof of judgement (section 86 of the IEA). Presumption of proof of foreign judgment – certified copy, representative of the registry, central government of both countries recognises the authenticity of such certification done by consulates generally. The basis of enforcement and recognition –

English courts have recognised and enforced foreign judgements as far back as form 17th century onwards. It was at one time supposed that the basis of this enforcement was to be found in the doctrine of comity. This is to say that the English judges believed earlier that the law of nations requires the courts of one country to assist those of any other and they feared that if the foreign judgements were not enforced in England then the English judgement would not be enforced aboard, this theory was later superseded by the doctrine of obligation which was stated by justice Blackburn in the case Godard v Gray. “We think that the true principle on which the judgements of foreign tribunals are enforced in England is that the judgement of a court of competent jurisdiction over the defendant imposes a duty or obligation on the defendant to pay the sum for which judgement is given, which the courts in this country are bound to enforce and consequently that anything which negatives that duty of forms a legal excuse for not performing it is a defence to the action”

27th August 2019 Later on in the case of Adams v Cape Industries plc 1990 CH 433, Justice scot accepted Blackburn’s restatement of the obligation doctrine as the basis on which English court would recognise and enforce foreign judgements in personam. However, the COA accepted that the obligation doctrine was purely theoretical since it has no practical; value in identifying the foreign judgements which give rise to the obligation. The COA accepted that at common law foreign judgements were enforced not through considerations of comity but on the basis of the principle that a legal obligation arises to satisfy the judgement of a court of competent jurisdiction. But in later passage it also expressed that view that some notion of comity lay behind the recognition of judgements but this cannot be comity on an individual nation to nation basis for our courts have never thought it necessary to investigate what reciprocal rights of enforcement are conceded by the foreign country or to limit their exercise of jurisdiction to that which they would recognise in others. These two judgements successively are talking about the limitations of doctrine of comity, the advent of doctrine of obligation and the new position is based on some modern understanding of doctrine of comity and broader understanding of doctrine of obligation.

Enforcement of foreign judgement at common law The enforcement is not automatic. How is it enforced in England? Summary suit is allowed to be initiated by the plaintiff only when certain conditions are fulfilled (order 37 – 1. The claim must be with respect to recovery of a debt, 2. It must be based on the debt (bundis, promissory notes or a written doc)

Whether a person can file a summery suit for enforcement of a foreign judgement? It is not entertained as a matter of practice. But in England it can be done as summary judgement. A judgement creditor seeking to enforce a foreign judgement in England cannot do so by direct execution. He must bring an action on the foreign judgement. But he can apply for summary judgement under what is now Part 24 of the Civil Procedure rules 1998. On the ground hat the defendant has no real prospect of successfully defending the claim and if his application is successful, the defendant will to be allowed to defend at all (similar to how in summary suit in India, the defendant is not allowed to defend he suit as a matter of right, he can only file a leave to defend. Of the leave is allowed, the summary suit becomes a normal suit although it goes on under summary suit). The speed and simplicity this procedure coupled with the tendency of English judges narrowly to circumscribe the defences that maybe pleaded to a claim on a foreign judgement means that foreign judgements are in practice enforceable at common law much more easily than they are in many foreign countries, like India. There are limited defences in case of execution of foreign judgements in India - S 13 CPC. Three adjudications 1. Interdeso SA v Nullifier 1992 Vol. 1 Lawyers reports A and co, a French company obtained a judgement in France for damages to be assessed against X and Co, an English company. X and Co.’s appeal in France fails and judgment is entered for 7 million francs. A and Co registers the judgement in England (registration of a foreign judgement is as executable and enforceable). X and Co institute a special form of procedure before the Court of Appeal (COA) in Paris to set aside the judgement on the ground that it was obtained by fraud. Similarly, X and Co also sought to set aside the registration in England on the ground that recognition would be contrary to public policy. Registration is confirmed because X and co has a remedy in the French court. And no stay of enforcement can be ordered because the application to the court of appeal in Paris is not an ordinary appeal (1st appeal) within the meaning of Art 30 of Procedural Rules of France. 2. Petereit v Babcock International Ltd 1990 LWR 350 A, the receiver of a German company, obtains a judgement against X and Co, an English company. X and Co. appeal against the judgement. A registers the judgement in England. The court stays execution conditionally on X and Co. providing security pending the outcome of appeal in Germany.

3. Case no. 49 of 84 – Debaecker and Bluvier v Bouwman 1985 ECR 1779 A, A Belgian, sues in Belgium X, an English man who has left his residence without leaving a forwarding address. Substituted service pursuant to Belgian law is affected on X at a Belgian police station. Subsequently, X informs A’s lawyer of his new address but service is not affected at the new address and A obtains a judgement in default (ex parte judgement). In considering whether service was affected on X in sufficient time for him to arrange for his defence, the English court may take into account the fact that A was informed of X’s new address and also the fact that X contributed to the failure of the document originating the proceedings to reach him. (There was fault on both the parties.) On this basis only the English court will go forward in deterring the executability of the judgement obtained in default. (It could have been challenged on the basis of fraud, as the new forwarding address was already available before the passing of the judgement in default) 28th August 2019 4. Roshan lal Kuthalia v R B Mohan Singh Oberoi AIR 1975 SC 824 The SC in this judgement observed that the only defence is to a suit of foreign judgement were those set out in Section 13. And if those defences are not attracted then the judgement should be enforced. ( other defences on the basis of facts and law of the case will not be available) 5. Moloji Nursing Rao v Shankar Saran AIR 1962 SC 1737 The SC held that the test to ascertain whether the court was a foreign court had to be determined on the date of the decree. A decree of a court in Gwalior of 18th Nov 1948 could be enforced in the State of UP as a judgement t of a foreign court as at that time the Gwalior court was a foreign court. The court also held that the rights conferred under Section 13 of the court to resist the enforcement of the foreign judgment was a substantive right which was not taken away by a subsequent enactment of the constitution of India under which Gwalior became a part of india. The ultimate outcome of the case was that the judgement of the Gwalior court was not enforced as the court did not have jurisdiction (under Section 13). (Defendant / Judgement debtor – raising objection under CPC Order 21 is not allowed.) Article 261 of the constitution – decree of Indian courts are executable throughout India. The J credit was talking about its applicability. SC said that the Article 261 is not retrospective. Proof of judgement Narsimha Rao v Ventaka Lakshmi 1991 SCC 451

A foreign judgement can be proved by producing a certified copy which could be a Photostat copy provided that it was duly certified under S 86 of IEA 1872. Anything coming from the registry for the court is the certified copy of an order (can be done by the authorised person and not necessarily the registrar). Under S 86, the consulate should also certify. Badat and Co v east India Trading Company AIR 1964 SC 538. There are three reqirements laid down in the IEA for the proof of a foreign judgement. 1. there must be certificate by the legal keeper of the document in the foreign court 2. a certificate by Indian consular authorities 3. proof of the character of the document under foreign law. the last requirement can be established by direct or circumstantial evidence and may even be presumed by the court as provided in S 86 of IEA Conclusiveness of the foreign judgement Section 14 goes on to provide for recognition. It can be challenged only under the 6 grounds under S 13. Section 11 CPC talks about the conclusiveness of e prior judgement. Many times the litigation in India is considered to have its applicability. But there are some aspects of section 13 which require the application of other provisions of the CPC. Vishwanath v Syed Abdul Wajid AIR 1963 SC 1 Section 13 of the CPC provides that a foreign judgment shall be conclusive except in the cases set out in the section. This is based on the principle of sanctity of judgements competently rendered. The rule of res judicata as embodied in section 11 of the CPC is applicable to the decisions of Indian courts in India and is also based on the same principle (of conclusiveness of a prior judgement), but the scope and application of the two provisions is not identical. The principle differences and similarities are under S 11 the principle would apply only of the earlier proceeding is decided before the second suit is instituted. Res judicata under S 11 would also include constructive Res Judicata (obvious point not raised earlier cannot be realised consecutively) so that even issues which might have been made a ground of attack or defence in the formal proceedings cannot be adjudicated in afresh suit where as under S 13 only the issues actually decided are conclusive. Further under both section 11 and 13, the court must be competent court, but the competency of the court for the purposes of res judicata has to be determined only with reference to the provisions of Indian law while in the case in the foreign judgements, the competence has to be determined both by the provisions of law that apply to that court and the principles of international law.

Ranjan Sir – Section 13 can be used constructively to invoke Section 11 in case additional claims are raised at the time of execution of the foreign judgement in India. Foreign judgements cannot be challenged on merits by virtue of its conclusivity Thus its conclusions on the assessment of evidence or the reliability of the witnesses cannot be assailed. Kohiman v PMK Idrosekutty AIR 1958 Kerala 126 The plaintiff came to the Colombo court where he got a. ex parte decree. In India he filed for execution while the defendant went to Colombo court and got the decree to be set aside. Another time the plaintiff got the judgements on merits in Colombo and again filed for executions in India, the defendant claim res judicata. An ex parte judgement of a combo court was set aside and consequently a suit in India to enforce a judgement was dismissed. Later when the Colombo court decreed the suit on merits and the decree holder filed the suit in India to enforce the second judgement, it was held that the contention that the suit was barred by res judicata ought to have been urged in the Colombo court and as that was not done that contention could not be a defence to the Indian suit to enforce the second judgement. Shankaran Govindan V Lakshmi Bharti AIR 1974 SC 1764 The SC w.r.t to fraud – it is not generally possible to allege that a foreign judgement has been obtained by fraud except in cases when fresh evidence has becomes available which was not produced before the foreign court. 29th August 2019 Indian Adjudications on foreign court and its jurisdictions Sardar Gurdayal Singh v Raja of Faridkote (1894) PC “The PC in this judgment laid down that the CPC (Indian) requires that the court which has pronounced the judgement must be competent court i.e. it must have jurisdiction over the subject matter and the defendant in the international law sense.” “That it may have jurisdiction under its own law is irrelevant.” – this is contentious because many times while giving recognition or enforcement to a foreign judgement the Indian court discusses those points in its own understanding and not necessarily in the international law understanding. So we can say that broadly the foreign court would have jurisdiction if the defendant were the citizen of the state whose court pronounced the judgement or a resident of

that state or had voluntarily submitted to the jurisdiction of that court or had adopted the proceedings as the plaintiff and had himself selected the forum. Brijlal Ramji Das v Govindram Govardhan Das AIR (1947) PC 192 If in a foreign country the proceedings are transferred form a lower court to a higher court and the latter hears it, it is matter for that court to decide whether the transfer was proper. It is not open in proceedings in India to enforce a judgement of that court to contend that the transferee court was not a competent court because the transfer was improper in the law of that country. On residence of the defendant (ancillary to the jurisdiction aspect) Narsimha Rao v Ventaka Lakshmi case A defendant is regarded as a resident of that country if he is habitually resident there, not temporarily resident for the purpose of obtaining a divorce from that court. (intention of habitual residence is diff from residence to obtain divorce) Vitthal Bhia Patel v Rambhai Bhimbhai AIR 1942 BOM A foreign court would have jurisdiction is the defendant was resident at the time of institution of the suit or is carrying on business there through an agent but the fireg court has no jurisdiction if the Power of Attorney in favour of the agent had been revoked before the suit was instituted. Note – relate this adjudication with the jurisdiction of an English court in case of claims in personam Submission to Jurisdiction Gang Prasand V Ganeshi Lal AIR 1924 Allahabad 161 If a defendant has appeared before that (foreign) court, he cannot question its jurisdiction as he had submitted to jurisdiction. (one things has to be remembered that the question that whether there has been a submission to jurisdiction may be of question of fact or question of law or a mix of both because the relevant aspect of amount of proof required will be diff in both. If it is a question of law purely, the defendant appears and question on law, then he has not submitted to the jurisdiction) V S Iyyar v J B Moga (1912) AIR Mad 24 To constitute a submission to a jurisdiction, to make a foreign court a competent court, it must be a voluntary submission, not a submission to save property from seizure. A N Meera v K M Mahdu Meera AIR (1926) Mad 259 If a person carries on business through an agent resident within the jurisdiction or has executed a power of attorney in favour of a person resident there, he has submitted to jurisdiction.

A. Sheik Atan Sahib V Davut Sahib (1903) Mad 469 – a defendant is regard as having submitted to the jurisdiction of the court if he seeks to leave to defend a summary suit B. Wazir Sahu v Munshi Das AIR 1941 Patna 109 – or the defendant moves the foreign court to set aside an order directing service on him outside jurisdiction C. Subramaniya Iyar v Annasami Iyer AIR 1948 Mad 203 – or the defendant appears and participates in a commission to take evidence appointed by the foreign court. ---------------------x------------------------------------x------------------------------x--------------------30th August 2019 Domicile Read the rules in the module The first common law rule on domicile talks about permanent home. Domicile is not defined in the Brussels and Lugarno convention and the civil jurisdictions and the judgements act of England defines it but the understanding is very diff. The first common law rule heavily relies on the permanent residence or home. The notion lies at the root of the concept of domicile. Permanent home aids in the determination of domicile. Winasse v Attorney General 1904 Appeal Cases 287 By domicile, we mean home, the permanent home and if you do not understand your permanent home, I am afraid no illustration drawn form foreign writers or foreign languages will very much help you to it. A person maybe said to have his home in a country if he resides in it without any intention of at present removing from it permanently or for in indefinite period. But a person does not cease to have his home in a country merely because he is temporarily resident elsewhere. Forming an intention of leaving the country does not cease to have his home in it until he acts according to that intention. While the notion of permanent home can be explained largely in the light of common sense principles, the same is not true in case of domicile. The distinctive feature of domicile is that it is an idea of law which diverges from the notion of permanent home in two principle respects. First, the elements which are required for the acquisition of a domicile go beyond those required for the acquisition of a permanent home. In order to acquire a domicile of choice in a country, a person must intent to reside in it permanently or indefinitely. A person who intends to reside for 10 years and no more will not acquire a domicile although he has his home there during the entire period. Again, a person cannot acquire a domicile of choice in a country in which he has never been physically

present but he may well have his permanent home in it if he establishes his family here and intends to join them shortly. Domicile differs form permanent home. The law in some cases says that a person is domiciled in a country whether or not he has his permanent home in it. A person may in fact have a permanent home in one country but be domiciled in anther because the law denied him/her the capacity of acquiring a domicile. Thus children under 16 and mentally discorded people maybe domiciled in countries in which they do not have their permanent home. Bell v Kennedy 1868 LR Vol. 1 307 T, descendent of a Scottish family, domiciled (of origin) in Jamaica. In 1837, he leaves Jamaica and comes to Scotland. By 1838, he hasn’t made up his mind whether to settle in Scotland, England or elsewhere. In 1939, he is domiciled in Jamaica although his home is not there. His domicile of origin continued till he decided on another even though he had moved out of Jamaica with the intention of not living there anymore. This satisfied two rule – one person can only have one domicile at a time and two, that no one can be without a domicile. O’Keefe case The domicile was ultimately attributed was that of Republic of Ireland. Our understanding of domicile in common, can help us criticise O’Keefe because it did not follow common law but we can sympathise with the adjudication because the law of Italy referred to nationality so they stuck to domicile of origin. O’Keefe is not a good example to understand domicile but it tells us that we do not abandoned the principles of acquisition of domicile. It has been frequently laid down that no person can be w/o a domicile. This rule is based on the practical necessity of connecting every person with some system of law by which a number of his legal relationships may be regulated. Where a person is infant homeless, the law nevertheless attributes a domicile to him in accordance with the rules contained in the COL rules and the domestic law of the country. If a person who has his permanent home in a country, he is considered to be domiciled in it. If he has no home but resides in a country with the intention of residing in it permanently, again he is domiciled in it. What if he was no home and no intention to reside in a country in which he is present physically? Then he has his domicile of origin. If he has his home in the country of his domicile of origin, he continues to be domiciled there until he acquires a domicile of choice in another country. Having acquired a domicile of choice, he retains the domicile of choice until he abandons it. Upon such abandonment, he may acquire a new domicile of choice. If he does not,

his domicile of origin revives. These rules insure that no person of full age and capacity can be without a domicile. An existing domicile is presumed to continue until it is proved that a new domicile has been acquired. “The burden of proving a change of domicile lies on those who assert it. This presumption varies in strength according to the kind of domicile, which is alleged to continue that is it is weakest when the domicile is one of dependency (due to underage or disability) and strongest when the domicile is one of origin for its character is more enduring, its hold stronger and less easily shaken off.” – Winasse v AG Note - domicile of dependency is not a kind of domicile; there are only two kindsorigin and choice.

31st August 2019 The conflicting view expressed on standard of proof required to rebut the presumption is given in the case of State of Fult 1968 P 675 Justice Carman said “the adopted standard is that adopted in civil proceedings proof in civil proceedings and not criminal proceedings (balance of probability is applicable). Two things are clear – unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists and secondly that the acquisition of the domicile of choice is a serious matter, not be lightly inferred from slight indications or casual works.” On the other hand according to Sir Joslin Simon “the standard of proof goes beyond the mere balance of probabilities and there is no doubt that the burden of proving that the domicile of origin has been lost is a very heavy one.” The reconciliatory note was struck in an Australian case in Re Cartier 1952 SASR “The change of a domicile of origin must be proved beyond reasonable doubt while a change of domicile of choice maybe proved on the balance of probabilities.” Domicile of Origin Common Law Rule 9 (pg 110) – domicile of origin is dependant on birth but is not dependant on place of birth. The domicile of origin is a distinctive feature of the concept of domicile. It is attributed to every person at par by operation of law. This domicile does not depend on the place where the child is born nor on the place where his/her mother or father reside but on the domicile of the appropriate parent at the time of birth. One exception to the statement that it is not attributed to the place of birth – the child the whereabouts of whose parents are not known.

Domicile of origin changes only in one case and that is adoption. The domicile of origin may be transmitted through several generations, no member of which has every resided for any length of time in the country of origin.it is generally accepted that a legitimate child born during the lifetime of his father, has his domicile of origin in the country in which his father was domiciled at the time of his birth. but are not divorced, different considerations apply. Refer to pg 110 – you’ve missed some notes. 3rd September 2019 Domicile of origin is a domicile capable of revival throughout his life. Its identification could be rendered unduly difficult if it dependant upon proof. Perhaps many years after the death of both of his parents of the date upon which they began to live apart. It is generally assumed, although there is no authority on the point, that a posthumous legitimate child takes his mother’s domicile at birth. Further, the rule as to domicile of origin of a foundling (whereabouts of parents is not known) is also generally accepted, although there is no authority. The rule also applies to a child who is not strictly speaking a foundling, but nothing is known about the domicile of his parents is not known or can be known. The domicile of a minor child maybe changed as a result of adoption or legitimation or of a change in his parents domicile. In case of adoption the child acquires a new domicile of origin as in law he is child of people in wedlock. But in other cases where the child gets in this way is a domicile of dependency and not a domicile of origin. If the child later in life, acquires a domicile of choice and then abandons it w/o acquiring another domicile, the domicile of origin will revive determined according to the present rule (rule 9) and the not the domicile of dependency through his/her parents. Difference between the Domicile of origin and Domicile of choice 1. On standard of proof 2. Abandonment –if a person leaves the country of his domicile of choice, intending never to return. He will cease to the domcicle of that country and unless he takes domcile of choice in aother country, his domcile of origin will revive. Grant v Grant A, domicile of English origin, goes to India, has a legitimate son P, who while resident in India, has a legitimate son C, who while a resident in India has a legitimate son D. all A, B and C intended to retire to England at the age of 60 but they all died in India before reaching that age. Q- What is the domicile of origin of D. It

will be England because A left England but never abandoned it. B born and lived in India but by birth had the domicile of origin in England without taking the domicile of choice in India. C had the same circumstance as his father. Therefore, D has the domicile of origin in England but nothing stops him from acquiring the domicile of choice of India. Re McKenzie 1951 Vol. 51 SRNSW 293 D an illegitimate child is born in London hospital (assumption as mother disappeared). Nothing is known about the mother’s domicile. Therefore his domicile of origin is English. Henderson v Henderson D is born in England, the legitimate son of F, who is domiciled in Scotland. Before D at the age of 14, F acquires a domicile of choice in England. His domicile of origin will be Scottish and the domicile from 14-16 will be English.

Domicile of Choice It is emphasised with the word “acquisition”. Every independent person can acquire a domicile of choice by a combination of residence and intention of permanent or indefinite residence but not otherwise. For the purpose of this rule, residence means very little more than physical presence. But it does means something more. Thus, person is not resident in a country were he is casually or as a traveller. The residence in a country for the lae od domicile is physical presence in that country as an inhabitant of it. A person’s state of mind maybe relevant to the issue whether he is present in a country as a traveller or as an inhabitant. But subject to this point, residence maybe established without any mental element. That is to say there is no requirement of animus residendi. The distinction between presence as a traveller and presence as an inhabitant helps to reconcile the conflicting views which have been expressed on the question, whether a solider is a resident in the barracks in which he is stationed. If we say so, it is submitted that the answer depends on the circumstances of each case, since the solider may approx. that to a traveller or an inhabitant. Question as to the quality of residence is relevant in considering whether the prepositors (from whom the origin is traced) have the animum menendi (intention).

5th September 2019 Animus Menendi – the intention of indefinite and permanent residence. It is not as a matter of law necessary that the residence should be long in the point of time. Residence for a few days for even part of a day is enough. How can we leally say that

it is enough? Only when it is coupled with animus menendi. Indeed an immigrant can acquire a domicile immediately after upon arrival in the country in which he wishes to settle. The duration of residence is not important in itself but is important as an evidence to animus menendi. A person spending short period of time in a house he owns, maybe held not to be resident there. It has been held that a domicile of choice cannot be acquired by illegal residents. The reason for this rule is simple – the court before which we are trying to prove the acquisition of domicile of choice, may o allow the acquisition of intention because it is in defiance of the law which the court is required to administer. As far as the intention is concerned, the intention which is required for the acquisition of the domicile. The intention required to reside permanently, it must be a residence fixed, not for a limited period or a particular purpose but general and indefinite in its future contemplation. This intention must be directed exclusively towards one country. Thus a person who leaves the country of his domicile, with the intention of settling in one of several other countries, does not acquire a domicile in any of those countries.

A person who is determined to spent the rest of his life in a country clearly has the necessary intention even though he does not consider his determination to be irrevocable. However, it is rare for the animus menendi to exist in this positive form. That is to say more frequently the person resides in a country without any intention of leaving it and it is emphasised here that such a state of mind may suffice for the acquisition of domicile of choice. The fact that a person contemplates that he might move is not decisive. Thus a person who intends to reside in a country indefinitely maybe domiciled there although he envisages the possibility of returning one day to is native country. a new domicile is not acquired until there is not only a fixed intention of establishing a permanent residence in some other country but until also this intention has been carried out by the actual residence there. 1. Gulpenkin v Gulpenkin (1937) 44 ALLER 613 B, whose domicile of origin is Turkish, resides in England without any intention of residing anywhere else is domiciled in England. 2. Doucet v Geoghegan (1878) Vol 9 D, whose domicile of origin is French, resides in England, intends to reside in England for an indefinite time but hopes when he has made his fortune to be able to return to France. He is domiciled in England.

6th September 2019 3. Jopp v Wood 1865 D whise domicile of origin is Scottish, goes as a trader to india. He intends ultimately to return to Scotland. His domicile is Scottish. 4. Winans v attorney general 1904 AC 287 P, whose domicile of origin is in New jersey. From 1850-60 he works in Russia as a railway contractor. Between 1860-1893 he spends his substantial part of each year in England for the sake of his health. From 1893 until his death in 1897, he lives exclusively in England in spite of his anti- British schemes and sentiments. He has not returned to the US since his departure therefrom in 1850. He retains his domicile in New Jersey. 5. Haskel D, domicile of origin is English. For the last 30 years of his life, he lives principally in Scotland but retains two houses and business interests in England. He makes a Scottish will (it means that a will in accordance with the testation laws of Scotland) disposing off his land in Scotland, and an English will disposing the rest of his property. There is evidence that he did not wish to acquire a Scottish domicile, as it would restrict his freedom of testation. 6. Ramsay v Liverpool 1930 D’s domicile of origin is Scottish. After retiring from work, he lives with his family in Glasgow. When the family moves to Liverpool, he goes with them and lives with them for the rest of his life, partly in lodgings and partly in a house, together with other members of his family. He declares that he does not wish to return to Glasgow. But in his will (which is formally valid by scots but not by English law) he describe himself as a Glasgow man. He will be domiciled in Scotland at the time of his death. 7. IRC v Pullock 1976 WLR 1178 D was born in Nova Scotia in Canada with a Nova Scotia domicile in 1910. He came to live in England in 1932 and joined the Royal Air Force, he intended to return to Canada at the end of his service. In 1946, he married an English woman. Although D had hoped to persuade her, she was unwilling to leave England. D resolved to live in England so long as his wife was alive but to return to Nova Scotia on her death. He did not survive his wife. He retained in domicile in Canada throughout.

Rule 11 – any circumstance which is evidence of a person’s residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice in that country. Comments on page 114 In these two factors, the fact of residence rarely causes any difficulty. Residence in a country is in itself some evidence Rule 12 on page 116 and the commentary 9th September 2019 Rule 12 on page 116 and the commentary Thus a person who resides in a country to escape rule against accumulation, or to achieve freedom of testation, or to institute or escape from matrimonial proceedings, may acquire a domicile there. Such cases are allowed because acquisition of domicile is a civil litigation and here there is no overlap with public law. How are these classes of (seven) persons been formed? – According to law.

11th September 2019 Continuation from last class.

16th September 2019 If when the marriage was solemnised it was not a valid marriage, but later on the marriage is validated by retrospective effect? It seems almost true that he question, whether the status of husband d and wife has been acquired must be determined once and for all by reference to the law od the place of celebration as it stood at the time when the parties went through the ceremony of marriage. According tot his view, the verdict of that law at that time, whether in favour of or adverse to the acquisition of a married status will be unaffected by a later change in its provisions. The simple reason for this assertion is that otherwise the relationship between the parties will always remain insecure. However, this conclusion was not fully accepted by the HOL (in star Kovisky case) which held that a marriage void at the time of its celebration maybe validated by a subsequent and retroactive change in the law of the place of celebration.

Facts and decision of the case H and W, both Polish by nationality and domicile, were married in Austria on May 19, 1945. The marriage was void by Austrian law since the ceremony was religious. On June 12 of the same year, a daughter, Barbara, was born to them. as from June 30 of the same year, Austrian legislation retrospectively validated religious marriages subject to their registration in a public register. In 1949, by which time H and W had both acquired a domicile in England, their marriage was registered in Austria so that by Austrian law the parties were then regarded as having been lawfully married since May 19, 1945. In 1950, W and X went through a ceremony of marriage in Croidon and had a son, Christopher, born just before this marriage. The son Christopher brings the case of his legitimation to the court in England which then reaches the HOLs. If the marriage between H and W was still valid in 1950, W and X were bigamously married (bigamous marriage is void). On the other hand, if it was void, Barbara was illegitimate and Christopher had been legitimated by the ceremony of 1950. The crucial question was whether the validity of the marriage was to be determined according to the state of Austrian law on May 19 or June 30 when the retrospective law came into force. It was held that the latter was the appropriate date. The outcome was that he first marriage was valid and Christopher was illegitimate. There were two other arguments 1. The status of parties domiciled in England can scarcely be altered by the law of the country with which they are no longer connected – this was ruled out by the HOL on the ground that the Austrian legislation dealt with formalities rather than status of the parties 2. The parties to a void marriage will be unable to rely on their unmarried status if the ceremony remains liable to validation. The problem is that we raise certain discussion with a twist in these facts. If the marriage of W and X would have preceded the retrospective validation of the marriage between H and W, so it is suggested that the validation would not have been recognised so as to nullify the second marriage which was wholly valid when entered into. Similarly, if an English court had granted a decree of nullity in relation to the first marriage, the validity of that decree ought not to be affected by a later act of registration. Further, if the marriage between W and X came after the retrospective validation of the earlier marriage, but W was domiciled at the time of her second marriage in a country which did not recognise the effect of the validation, then the second marriage ought to be regarded as valid.

The Two Juridical Concepts Form and Capacity 17th September 2019 The statement that a marriage good by the law of the place of celebration is good world over is accurate only if confined to the question of formal validity. The question of essential validity or capacity is the matter of personal law of the parties (lex domicile). Some matters seen clearly to be formal in character such as whether a religious or a civil ceremony is required, the questions of the time and place of the ceremony, the need for witnesses, the requirement of registration of the marriage, the requirement of prior notification of the marriage ceremony and the requirement of the pre-nuptial blood test – they all relate to form. Then there are the cases on the identification of the place of ceremony. One case is that of Apt v Apt (1947) Vol 2 AllER 677. Now it has been established in tis case that a rule which permits a marriage by proxy must be classified as formal since it is concerned with the manner in which the marriage ceremony may be performed. It was held in this case that if a woman domiciled and resident in England executes a Power of Attorney appointing person X to act as her representative in the celebration of a marriage between her and Y in a country where marriage by proxy is recognised and the ceremony is in fact performed the formal validity of the marriage cannot be impugned. It was also made clear that marriage ceremony solemnised in such a manner though not possible in England is not regarded as contrary to English public policy. To add to the understanding we must not forget the outcome of the McCabe v McCabe where the COA upheld the formal validity of a foreign (Ghana, by sending a bottle of Gin) marriage under customary law where neither spouse where present as both were in England. The expert said that it is valid under Akhan law. \ There may be a few cases also related to marriage in foreign consulates and embassies. Ratwan v Ratwan 1973 FAM Pg 35 In 1951 the husband domiciled in Egypt married Iqbal in Egypt in a polygamous union. Then in 1952, he married a petitioner, Marie who is domiciled in England in the Egyptian consulate in Paris in a polygamous union and the matrimonial homes was established in Egypt. In 1953, the husband divorced Iqbal by Talaq. In 1956, the husband and Marie came to live in England and acquired a domicile in England. In 1970, the husband obtained a talaq divorce from Marie in the Egyptian consulate in London and then Marie petitioned the English court for divorce. This situation raises a lot of questions and not everything was considered in a logical way by the English court. It was held that the talaaq divorce in the Egyptian consulate could not be recognised in England because the fiction of extra territoriality does not apply. This talaaq in Egyptian consulate was considered a kind of divorce in England but not

recognised. Two questions had to be examined – (i) whether the parties had the capacity and (ii) whether the marriage was valid. 1. Justice Bruce Cumming decided that although Marie was incapable by English law of entering into a polygamous marriage, she was capable by Egyptian law, the law of the intended matrimonial home. As to formal validity of the marriage the court held that the place of marriage was to be held to be France and not Egyptian territory. Then the court went to apply the French law. The court held that marriage to be formally valid in absence of decisive law in France to reverse this marriage. While this case provides for the view that a marriage abroad in a foreign country or a consulate must comply with the formalities of the receiving state (where the consulate is situated). There remains a problem in England if marriage in foreign diplomatic premises. There are some authorities for the view that such marriages are formally valid. Domiciliary or nationals of that foreign state. Foreign marriage act 1892 amended by foreign marriage act – British forces serving abroad, consular marriage are statutory exceptions and there is one common law exception.

Taczanowska v Taczanowaski 1957 Vol 2 All ER Two polish nationals domiciled in Poland were married in Italy in 1946 in a military camp. The husband being a member of the allied occupation forces in Italy. The ceremony did not comply with the formal requirements of Italian law. English conflict of law rules said that if the matter were to be before the Italian courts, they would apply the rules of the domicile, that is polish law for determining the question of the formal validity of the marriage between the parties. This is an example of renvoi (of transmission) but he problem was that the marriage was also not formally valid under polish law. it was held valid in England as an exception to the general rule of reference to the law of the place of celebration. Nevertheless it seems to be have been assumed that the English courts would have regarded the marriage to be formally valid had polish law so regarded it (renvoi of transmission). If one person is a member of her majesty’s armed forces and his/her marriage has taken place in a foreign country, section 22 of the foreign marriage act, 1897 says that such marriage will be held valid. Exception w.r.t consular marriages. Common law exception – British subjects marrying elsewhere in the presence of a priest by exchanging vows and in case of unavailability of the priest. (read this from the module)

18th September 2019 Capacity to Marry pg 139 The choice of law is considered to be that of lex domicile when we talk about the capacity to marry (determined by consanguinity, affinity etc.) Our attempt towards getting the legal certainty. Two theories Dual domicile theory – when the question relates to capacity, this domicile theory will say that the parties must be capacitated by both their domiciles, no matter where they get married. Intended matrimonial theory says that if the parties intent and actually do settle in a particular country after their marriage, then that country’s law will be applicable for capacity. Prima facie, the second one seems to be more certain. The traditional and still prevalent view is that the capacity to marry is governed by what may conveniently be called dual domicile theory. This prescribes that a marriage is invalid unless according to the law of the domicile of both contracting parties at the time of marriage, they each have capacity to contract that marriage. This general understanding is said to be true whether the incapacity is absolute one (age) or a relative one (consanguinity or affinity). A hypothetical situation – a marriage between a man of Jewish faith domiciled in Egypt and a woman of the same faith domiciled in England. The woman being his niece and the intended matrimonial home as well as the place of celebration is Egypt. Will it be a valid marriage? According to the dual domicile doctrine, it will be invalid. It will be valid in terms of the place of celebration and the intended matrimonial home. But it can be valid according to the dual domicile doctrine as the moment she leaves England to get married and settle in Egypt, her domicile will change to that of Egypt. (It will not be the case if the woman is a minor – Pranav) What are the merits and the demerits of the two rival theories? It can be argued that the doctrine of dual domicile is inferior to that of the intended matrimonial home, because marriage is an institution that closely concerns the public policy and the social morality of the state. However, the general laws which dictates its incidents vary considerably between different countries and where a domiciles in one country, marries a man domiciled in another, the question naturally arises, what state is to control the incident of capacity. One clear answer might be the state in which the parties set up their home because a choice of law rule commands little respect if it framed without regard to its impact on the social life of the community that will be most intimately affected by its

operation. This reason is simple. When we are talking about the validity of marriage including their personal capacity. The acceptance of the community where they are to be living is important. In support to the argument that it is the law enforceable where they live which should assess the propriety or the impropriety of the marriage, one might take the example of an extreme case of an absolute capacity. The only contrary argument to this is that- It is not only about the conscious of the society where she is living but also the place where she comes from. When one turns to the disadvantages to the intended matrimonial homes theory then several objections of practical matter maybe advanced against it. It may be objected that any rule is undesirable, which renders it impossible to decide whether a marriage is valid or void at the time of its celebration or where it is very doubtful whether the parties genuinely intended o set up their matrimonial home in a certain country. Delay to live together in the intended matrimonial home or to actually go to live in the country then how will it be determined the question of intended matrimonial home at the time of celebrations. There are two solutions to this (but they have their own problem) – 1. The question whether a marriage is void for incapacity; unless it arises incidentally in the course of some other proceedings, it will be required that a suit for declaration of nullity should be instituted. It is suggested that by this time it will be known whether the parties acted on the alleged intention or the alleged intention was fulfilled or not. Problem - If the marriage is void ab initio then the parties will never institute the suit for nullity 2. It is not true that the status of the parties will remain indeterminate for if the place of their future home is doubtful. It is presumed to be in the domicile of the husband at the date of their marriage. Problem – it is a discriminatory rule on the basis of gender. It is not easy to find merit in a discriminatory rule which refers the issue of the wife’s capacity to marry to the husband antenuptial domicile.