Download Conflict of Laws (Private International Law) Notes...
Private International Law Or Conflict of Laws Dr. Raju KD Assistant Professor Rajiv Gandhi School of Intellectual Property Law IIT Kharagpur
West Bengal
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Why you require Pvt.int.na.law Indian court is called upon to try the question of
succession to the property of a person who died in India leaving property in India and abroad. Petition of divorce presented by an Indian domiciled in India who had married an English woman in England. Custody of children in India of Indian parents domiciled abroad.
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Why you require Pvt. Int.n.law Suits connected with foreign country Question of succession
Question of validity of marriage Petition of divorce Custody of children
Supply of goods Torts committed on short visits Enforceability of foreign judgment - can a foreign
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Name Its three different names — conflict of laws, private
international law, and international private law — are generally interchangeable, although none of them is wholly accurate or properly descriptive. The term conflict of laws is primarily used in jurisdictions of the Anglo-Saxon legal tradition (United States, England, Canada, Australia, etc.); private international law is used in France (droit international privé) as well as in Italy, the Spanish-speaking and Portuguese-countries and Greece; international private law is used in Germany and the other German-speaking countries (internationales Privatrecht) © KDR/IIT KGP/RGSOIPL-2010
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Name Private International Law is used by Civil Law
countries. Name is first used by “Story” in 1834. Used by early authors like Westlake and Foote. Confusion between law of nations or public international law. It governs the relation between sovereign states. Some principles like ‘proper law’ principles are adopted in a private international law case when deciding a case. © KDR/IIT KGP/RGSOIPL-2010
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Conflict of laws Conflict of laws of two countries on the same subject. The very purpose of private international law is to
avoid conflict of laws.
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History Back to Greek law – equal application to foreigners
also. More significant developments can be traced to Roman law. Roman civil law (jus civile) being inapplicable to noncitizens. Special tribunals "applied" the "jus gentium." The jus gentium was a flexible and loosely-defined body of law based on international norms. © KDR/IIT KGP/RGSOIPL-2010
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History Contribution of Islamic law and jurisprudence. Muslim conquests and maritime explorations.
Islamic jurists developed elaborate rules for private
international law regarding issues such as contracts and property, family relations and child custody, legal procedure and jurisdiction, religious conversion, and the return of aliens to an enemy country from the Muslim world.
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Modern laws The modern conflict of laws is generally considered to
have begun in Northern Italy during the late Middle Ages and in particular at trading cities such as Genoa, Piza and Venice. Maritime law was also a great driver of international legal rules; providing for the enforcement of contracts, the protection of shipwrecked sailors and property, and the maintaining of harbours.
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England King constituted special courts for foreigners, the
staple courts and pie-powder courts. Court of admiralty – dealt with trade disputes happened outside the territory even in 14th century. Recognition of foreign judgments started in the England in 1607. Robinson v. Bland – 1790 – whether a contract made in France is valid even though it is void in England. J. Mansfield: the place where the contract is made, not where the action is brought. © KDR/IIT KGP/RGSOIPL-2010
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Two groups of thought 1. Conflict of Laws as a part of international law. 2. Domestic law
Comity of nations Jurisdiction of courts Recognition and enforcement of foreign judgments
The choice of law.
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Two major areas Private international law "sensu stricto" comprising
conflict of laws rules which determine the law of which country (state) is applicable to specific relations. Private international law "sensu lato" which comprises private international law "sensu stricto" (conflict of laws rules) and material legal norms which have direct extraterritorial character and are imperatively applied (material norms of law crossing the borders of State) usually regulations on real property, consumer law, currency control regulations, insurance and banking regulations. © KDR/IIT KGP/RGSOIPL-2010
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Application The court must first decide whether it has jurisdiction
and, if so, whether it is the appropriate venue given the problem of forum shopping. The next step is the characterisation of the cause of action into its component legal categories which may sometimes involve an incidental question (also note the distinction between procedural and substantive laws).
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Choice of law Each legal category has one or more choice of law rules
to determine which of the competing laws should be applied to each issue. A key element in this may be the rules on renvoi. Once it has been decided which laws to apply, those laws must be proved before the forum court and applied to reach a judgment. The successful party must then enforce the judgment which will first involve the task of securing crossborder recognition of the judgment. © KDR/IIT KGP/RGSOIPL-2010
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Choice of law application of the lex fori or local law. the court will apply the law of the forum (lex fori) to all procedural
matters (including, self-evidently, the choice of law rules); and it counts the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection, e.g. the law of nationality (lex patriae) or domicile (lex domicilii) will define legal status and capacity, the law of the state in which land is situated (lex situs) will be applied to determine all questions of title, the law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive, but the proper law has become a more common choice. © KDR/IIT KGP/RGSOIPL-2010
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Choice of Law Lex loci contractus: the law of the place where the contract was made; Lex loci solutionis: the law of the place where the contract is to be
performed; Lex loci celebrationis: the law of the place where the marriage was celebrated; Lex loci delicti: place where the tort was committed; Lex loci domicilli: the law of the place where a person is domiciled; Lex patriae: the law of the nationality Lex situs: the law of the place where the property is situated. Lex fori: the law of the forum(internal Law).
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Choice of law Which system of law must govern the case? Warsaw convention – 1929 amended in
The Hague convention – 1893 - 1955. International sale of goods – 1964 - 1980 Lugano Convention – 1988
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Subject matter Rules relating to jurisdiction of courts 2. Rules of choice of law 3. Rules relating to recognition and judgment of foreign judgments and decrees. 1.
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Different jurisdictions Law of the place of tort Place of celebration of marriage
Movables are subject to the law of the domicile of the
owner for the purpose of succession.
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Different theories Theory of acquired right: Dutch jurist Huber and later Dicey and Beale in USA.
Principle of territoriality Enforcement of right rather than foreign law. Dalrymple v. Dalrymple, (1811).
No support today. No protection of right without the recognition of law.
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Local law theory Walter Wheeler Cook The forum recognizes and enforces a local right.
Total exclusion of all foreign laws. If a foreign element is there, it does not necessarily
apply law of the forum. Social expediency and practical convenience.
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Rule selection or jurisdiction selection Forum policy – law of the forum Local law rules vs. international law
Jurisdiction selection Rule selection
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Factors Need of the interstate and international systems Relevant policies of the forum.
Policies of the interested states. Protection of justified expectations. The basic policies underlying the particular field of
law. Certainty, predictability and uniformity of result Ease in the determination and application of the law to be applied. © KDR/IIT KGP/RGSOIPL-2010
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Classification of the cause of action Allocation of the question raised by the factual
situation to apply a correct legal category. Law of the forum Law of citus Law of marriage Law of domicile
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Foreign element Ogden v. Ogden, 1908 Simonin v.s Mallac
Consent of marriage under French Law Bona vacantia – Re Maldonado’s Estate, 1954
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Thank you
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Private International Law Or conflict of laws Dr. Raju KD Assistant Professor Rajiv Gandhi School of Intellectual Property Law IIT Kharagpur
West Bengal
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Classification or characterization The first step in any case where a foreign element
involved, Determination of jurisdiction is important. Classification of the cause of action Objective is to find out the court and correct legal category. What choice of law to be applied? Whether the law of the forum? Law of the domicile? ©KDR/IIT KGP/RGSOIPL-2010
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Characterization As a breach of contract As a tort
Reference to which law the court is going to
characterize the factual situation. Objective is to reach a socially and just result.
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Characterization Indian court Inheritance to immovable property in India
Married woman domiciled in Tibet. Polyandrous marriage 2 husband and 3 children
Valid marriage – no marriage.
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Choice of law The question of what law applies is a question the
court answers by consulting the law of its own state; that is, it is a question of forum choice-of-law doctrine. the court proceeds to apply the forum’s substantive or internal law: the tort, contract, or other law that determines the parties’ substantive rights. The forum’s choice-of-law rules might also direct the application of another state’s law.
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Choice of forum If foreign law can never apply within the forum state,
then obviously the forum cannot apply foreign choiceof law rules.
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Choice Capacity to marry: lex domicilli Formalities and validity: lex celebrationis or lex
contractus or lex situs. Marriage is void or voidable: lex fori or lex causae Marriage by proxi
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Traditional approach The theory of territoriality. The traditional jurists are of the opinion that axiom of
territoriality, the principle that “the law of a state prevails throughout its boundaries and, generally speaking, not outside them.” only the law of the state where an event occurred can attach legal consequences to that event, and choice of law becomes largely a matter of determining the place of occurrence.
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Modern policy oriented approach Regarding this approach the experts have said that the
fundamental insight of modern theory is that the applicability of a law is a pure question of interpretation. As most legislation does not specify its territorial scope, it hints at filling the gaps by reference to a law's purpose. The solutions advanced by the policy-oriented approaches are essentially the same as those offered by the traditionalists, ©KDR/IIT KGP/RGSOIPL-2010
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Maltese marriage case Husband and wife domiciled in malta-time of
marriage acquired French domicil – land in France – succession of law according to law lex loci citus – Matrimonial rights are according to law of domicile Conflict of classification – Maltese or French? French court applied the matrimonial law of Malta. Classification of cause of action will decide every case.
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Cases Ogden v. Ogden, 1908 Frenchman domiciled in France
Married an English woman in London without
knowledge of parents Frenchman below 25 Father take him to France back and got annulled the marriage from French Court – want of parental consent French law. Frenchman married another girl in France. ©KDR/IIT KGP/RGSOIPL-2010
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Case English women approached High Court of England on
the ground of desertion and adultery. Petition dismissed on ground of want of jurisdiction 1906 - she married another English man named William Ogden Ogden filed a divorce petition on the ground that at the time of marriage, she was already married. The court passed a decree annulling the marriage The court said the marriage with the Frenchman was valid as the French Decree not recognized by English court. ©KDR/IIT KGP/RGSOIPL-2010
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Characterization Parental consent is a formality – lex loci celebrationis,
i.e. English Law Result – the women was married under English law and not married under French Law. First Stage – assessing factual situation Second Stage – connecting factor is characterized Third stage – characterization of proper law is made.
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Renvoi
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Renvoi French term means – sending back When a forum court refers the case to anther
jurisdiction many questions arises: How much of other jurisdiction of law applies? Does it include choice of law principles? Does it include only the jurisdiction’s internal law?
The question whether a forum should
consult the choice of law rules of other jurisdictions is called renvoi. ©KDR/IIT KGP/RGSOIPL-2010
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Renvoi Jurisdiction The court must first decide whether it has the
jurisdiction to hear the case (which will involve addressing the question of whether the plaintiff is attempting to manipulate the judicial system by forum shopping). Choice of law The court must analyse the case as pleaded and allocate each component to its appropriate legal classification, each of which will have one or more choice of law rules attached to it. ©KDR/IIT KGP/RGSOIPL-2010
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Renvoi Objective is to attain a uniform judicial determinations
irrespective of foreign or domestic forum. By using the law of the forum more accurate decision. Applying the chosen law The court will then apply the choice of law rules. The system of renvoi, which literally means "send back", is an attempt to prevent forum shopping. The next step is to see whether there is a reference solely to the relevant substantive provisions, or to the state's system of law as a whole which would include its choice of law rules. ©KDR/IIT KGP/RGSOIPL-2010 17
Renvoi Where the law of the forum provides that a juridical
event shall be governed by a certain foreign law, and that foreign law in turn remits it to the law of the forum to determine by its law, the situation arises which has been termed as renvoi. Choice of law the forum court might in the process decide what it means to apply the law of another state.
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Law what is meant by ‘law’ when a reference is made to foreign law; for example, does a reference to ‘Indian
law’ mean Indian internal law, or the whole of Indian law, including its conflict of laws rules? The word ‘law’ is ambiguous and a number of approaches have been suggested in this regard.
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Renvoi: jurists opinion Professor Schreiber: “When the Conflict of
Laws rule of the forum refers a jural matter to a foreign law for decision, is the reference to the corresponding rule of the Conflict of Laws of that foreign law, or is the reference to the purely internal rules of law of the foreign system; i.e., to the totality of the foreign law minus its Conflict-of-Laws rules. ©KDR/IIT KGP/RGSOIPL-2010
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Single renvoi A single renvoi forum always refers to the other law's
choice of law rules. If those rules would send the issue back to the forum court, the forum court will accept the first remission and applies its own laws. But, if both sets of laws operate with either no renvoi system or single renvoi systems, forum shopping will be a potential problem.
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Single renvoi when the court of the forum has a choice to apply the
foreign choice of law rules, accept the remission to its law by the foreign law and apply the law which it would have applied had the case been entirely domestic to the forum, or in the case of transmission, the domestic law of the third country. This requires proof of the choice of law rules of the foreign country but not of the foreign rules about renvoi. This is single renvoi. ©KDR/IIT KGP/RGSOIPL-2010
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Single renvoi A single renvoi forum always refers to the other law's
choice of law rules. If those rules would send the issue back to the forum court, the forum court will accept the first remission and applies its own laws. But, if both sets of laws operate with either no renvoi system or single renvoi systems, forum shopping will be a potential problem.
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Single renvoi If a Judge in country A is referred by his own rule of
the choice of a law to the ‘law’ of the country B, but the rule of the choice of law in B refers such a case to the ‘law’ of A, then the Judge in A must apply the internal law of his own country. Remission to its own law. Forgo’s case Bavarian national died intestate in France Whether his movable properties could be distributed according to Bavarian law or French law? ©KDR/IIT KGP/RGSOIPL-2010
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Single renvoi when the court of the forum has a choice to apply the
foreign choice of law rules, accept the remission to its law by the foreign law and apply the law which it would have applied had the case been entirely domestic to the forum, or in the case of transmission, the domestic law of the third country. This requires proof of the choice of law rules of the foreign country but not of the foreign rules about renvoi. This is single renvoi or remission. ©KDR/IIT KGP/RGSOIPL-2010
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Lex Fori
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Single renvoi
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Transmission If 3 countries are involved. Indian national - A
Domiciled in the US - B Dies intestate in UK leaving movables – C English law – law of the domicile – US law
The US private international law refer the case to law
of nationality - Indian law. Reference from B to C is known as transmission.
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Double renvoi or foreign court theory In this scenario, the forum court considers that it is
sitting as the foreign court and will decide the matter in exactly the same way that the foreign court would. In this system, there can never be more than two remissions, e.g. English forum refers to French law (a single renvoi system) so English law is applied (1st remission) and France accepts the remission (2nd and final). At present, only English law uses this approach.
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Double or multiple renvoi Double or Multiple renvoi is when the court of the
forum may resolve the issue in the same manner as a court of the legal system selected by its choice of law rules might resolve it had the foreign court exercised jurisdiction in the same case on the same facts. This method requires proof not only of the choice of law rules of the foreign country but also the foreign rules about renvoi.
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Application of renvoi Because the doctrine is considered difficult and its
results are sometimes unpredictable, its application has generally been limited to: the validity of wills and intestate succession (the validity of transfers of real property); and retrospective legitimation by the marriage of the natural parents (validity of divorce decrees). Although there are indications in some states that it might also apply to two issues in family law, namely the capacity to marry and the formal validity of marriage. ©KDR/IIT KGP/RGSOIPL-2010
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Double or multiple renvoi Double or Multiple renvoi is when the court of the
forum may resolve the issue in the same manner as a court of the legal system selected by its choice of law rules might resolve it had the foreign court exercised jurisdiction in the same case on the same facts. This method requires proof not only of the choice of law rules of the foreign country but also the foreign rules about renvoi.
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English citizen dies intestate domiciled in Italy – English conflicts of law refers it to law of domicile – ie. Law of Italy –Italian conflicts of law refers it back to the national law-English law
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Application of renvoi Because the doctrine is considered difficult and its
results are sometimes unpredictable, its application has generally been limited to: the validity of wills and intestate succession (the validity of transfers of real property); and retrospective legitimation by the marriage of the natural parents (validity of divorce decrees). Although there are indications in some states that it might also apply to two issues in family law, namely the capacity to marry and the formal validity of marriage. ©KDR/IIT KGP/RGSOIPL-2010
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Applicability formal and intrinsic validity of wills cases of intestate succession
legitimation by subsequent marriage. formal validity of marriage Capacity to marry.
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Limitations Does not ensure uniform results. One of the country should reject the renvoi then only
it will work properly. Renvoi works only in commonwealth countries. If the foreign country rule is unacceptable – no application of renvoi. The judge referring the case must look into the foreign law. It depends on whether the single renvoi is recognised by the foreign country. ©KDR/IIT KGP/RGSOIPL-2010
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Re O’ Keefe Born in Calcutta – India Settled in Naples, Italy
British nationality Father – domiciled in Ireland at the time of her berth-
lived and died in Calcutta
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Collier vs. Rivaz, 1841 British subject Domiciled in Belgium at the time of death Executed various instruments according to Belgian law.
Some of the documents are not in accordance with Belgian law. The testator never acquired a domicile in Belgium – no
authorization. The question was whether the instruments could be probate in England. Held: the formal validity of a will cannot be denied if it satisfies either the internal law or the private international law.
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cases In Re Ross, 1930 Validity of a will – intestate succession to movables –
law of the foreign country. Immovable – private internationals of the country where the immovable's are situated. Movables – law of the situs where the title of the movables has been acquired.
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Thank you
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Private International Law Or conflict of laws Dr. Raju KD Assistant Professor Rajiv Gandhi School of Intellectual Property Law IIT Kharagpur
West Bengal
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Double Renvoi or foreign court theory Sir Herbert Jenner formulated the foreign court theory. The court sitting here decides from the persons skilled
in that law, and decides as it would if sitting in Belgium. Collier v. Revaz (1841)
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Double renvoi or foreign court theory In this scenario, the forum court considers that it is
sitting as the foreign court and will decide the matter in exactly the same way that the foreign court would. In this system, there can never be more than two remissions, e.g. English forum refers to French law (a single renvoi system) so English law is applied (1st remission) and France accepts the remission (2nd and final). At present, only English law uses this approach.
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Double or multiple renvoi Double or Multiple renvoi is when the court of the
forum may resolve the issue in the same manner as a court of the legal system selected by its choice of law rules might resolve it had the foreign court exercised jurisdiction in the same case on the same facts. This method requires proof not only of the choice of law rules of the foreign country but also the foreign rules about renvoi. Illustration
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Lex Fori
Or Single Renvoi ©KDR/IIT KGP/RGSOIPL-2009
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Double or multiple renvoi Double or Multiple renvoi is when the court of the
forum may resolve the issue in the same manner as a court of the legal system selected by its choice of law rules might resolve it had the foreign court exercised jurisdiction in the same case on the same facts. This method requires proof not only of the choice of law rules of the foreign country but also the foreign rules about renvoi. Illustration
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Application of renvoi the doctrine is considered difficult and its results are
sometimes unpredictable, its application has generally been limited to: the validity of wills and intestate succession (the validity of transfers of real property); and retrospective legitimation by the marriage of the natural parents (validity of divorce decrees). Although there are indications in some states that it might also apply to two issues in family law, namely the capacity to marry and the formal validity of marriage. ©KDR/IIT KGP/RGSOIPL-2009
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Applicability formal and intrinsic validity of wills cases of intestate succession
legitimation by subsequent marriage. formal validity of marriage Capacity to marry.
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Limitations Does not ensure uniform results. One of the country should reject the renvoi then only
it will work properly. Renvoi works only in commonwealth countries. If the foreign country rule is unacceptable – no application of renvoi. The judge referring the case must look into the foreign law. It depends on whether the single renvoi is recognised by the foreign country. ©KDR/IIT KGP/RGSOIPL-2009
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The foreign court theory suffers from ambiguity.
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Re O’ Keefe Born in Calcutta – India Settled in Naples, Italy
British nationality Father – domiciled in Ireland at the time of her berth-
lived and died in Calcutta
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Collirt vs. Rivaz, 1841 British subject Domiciled in Belgium at the time of death Executed various instruments according to Belgian law.
Some of the documents are not in accordance with Belgian law. The testator never acquired a domicile in Belgium – no
authorization. The question was whether the instruments could be probate in England. Held: the formal validity of a will cannot be denied if it satisfies either the internal law or the private international law.
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cases In Re Ross, 1930 Validity of a will – intestate succession to movables –
law of the foreign country. Immovable – private internationals of the country where the immovable's are situated. Movables – law of the situs where the title of the movables has been acquired.
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Thank you
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Foreign Law Element Application and Exclusion Dr. Raju KD Assistant Professor Rajiv Gandhi School of Intellectual Property Law IIT Kharagpur
West Bengal
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Deciding case Question of fact – to be proved Question of law – not required to be proved
Foreign element cases – same questions arises. Private international law differs. Foreign element – Courts apply foreign law – exclude
foreign law. Foreign law – question of law or question of fact?
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Application of foreign law Italy - Same way as that of the internal law – duty of
the court to know foreign law. Germany - question of law - Secondary nature –not in the same way as that of internal law – content of the foreign law should be established. French Law - Question of Fact – it is the duty of the court to ascertain it ex officio.
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Practices Russia – East Europe - – simple fact – parties to prove-
Duty of the court to found objective truth on the interest of the society. The court is obliged to strive to establish ex officio the substance of the foreign rules of law. All common law countries including India – taken it as a question of fact. Burden of proof is with the parties. By documentary evidence, oral, expert witnesses. ©KDR/IIT KGP/RGSOIPL-2010
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Other countries Common-law countries, Spain, Portugal, India and
some Latin American Countries take the view that the question of foreign law is a question of fact in the same manner as any other question of fact.
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Proof of foreign law England: the foreign law must be pleaded and proved
as a fact, by expert evidence In the absence of foreign law the court will apply English law. Bremer v. Freeman, (1857) PC 306 Concha v. Murrieta, 40 Ch D 543 ‘foreign law is to be ascertained by the evidence of experts skilled in such a law.’ Lawyers or academic Professors ©KDR/IIT KGP/RGSOIPL-2010
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Experts Evidence of roman Catholic Bishop was accepted to
prove the matrimonial law in Rome. Bank Director – any commercial matter. Diplomats – Notary – Non Lawyers
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Law in other countries S.4(1) of the English Civil Evidence Act 1972 permits
expert evidence on foreign law of persons suitably qualified to do so on account of their knowledge or experience. Canada: foreign statutes and judicial proceedings are admitted according to Article 2809 of the Civil Code in the Province of Quebec.
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India Indian evidence Act, 1872. S.38 of the Act provides that any official publication of
a foreign country containing its laws or law reports can be admitted in evidence. S.45 – any person specially skilled can give expert evidence on a subject. S.57 – Indian courts will take judicial notice of certain laws. S.78 – includes ‘public documents’ – legislative acts of any country. ©KDR/IIT KGP/RGSOIPL-2010
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India 57(2) – all public Acts passed by the Parliament of the
UK to be judicially noticed… 4. the course of proceedings of Parliament of the UK… S.84 – the court may presume the geniuses of every such record. Appropriate books or documents of reference.
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India Bombay High Court taken the view that judgment of the
highest court of the foreign country is best evidence as to the law of that country. Sugan chand Bhinkimchand v. Mangibai Gulabchand, 1942 Bomb. 185. Indian law the burden of proof is on the party setting the plea of foreign law. Palaniappa Chetty v. Nagappa chettiar, 1930 Mad. 146. Ceylon Civil Procedure Code – expert opinion – the court itself interpret the provisions of foreign law. Under Indian law, foreign law may be proved by expert evidence under S.45KGP/RGSOIPL-2010 of Indian Evidence Act. ©KDR/IIT
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Application of foreign law Technip SA v. SMS Holding (Pvt) Ltd. 2005, 5 SCC 465. - ‘it
is for the court to resolve the conflict by looking at the admitted text of the French law and the material on record to decide the proper application of the provisions. SEBI held that French law applied to the takeover of Coflexip and consequently SEAMEC by Technip for the purpose of determining when such takeover was effected. It found that the Technip had obtained control of Coflexip in July 2001 and had violated Regulations 10 and 12 of the Regulations thereby acquiring 58.24% of the shares/voting rights and control in SEAMEC in July 2001 without making any public offer. ©KDR/IIT KGP/RGSOIPL-2010
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Exclusion of Foreign law It is the duty of the party pleading foreign law is to
prove what the foreign law is. If he fails to do the court will apply lex fori. Against public policy or Ordre Public Foreign law is penal in nature Foreign law revenue in nature
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English court William and Humbert Ltd. v. W. & H Trade Marks
(Jersey) Ltd. (Dry Sack Sherry Trade mark case, (1085) 3 WLR 501. Class I – English courts will not recognize foreign confiscatory laws which discriminates on the grounds of race, religion or the like. Grave infringement to human right laws Class II – foreign laws confiscating property situated in a foreign country if they are penal in nature. ©KDR/IIT KGP/RGSOIPL-2010
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Exclusion of foreign law If the system of law offends the domestic law notions
of public welfare by applying the doctrine of ordre public. English courts won’t enforce foreign laws if it would be inconsistent with the fundamental public policy of English law. Indian courts also will not assist in the enforcement of foreign penal and revenue laws: - Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid AIR 1963 SC 1.
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Exclusion of foreign law US – penal laws cannot be executed. Pecuniary penalties for any violations of statutes for
the protection of revenue or municipal laws. Recognised in the Hague Convention on the Recognition and enforcement of Foreign Judgments in Civil and Commercial Matters 1971. Contracting states have agreed to recognise and enforce judgments of each other’s courts, but does not apply to any payment of customs duty, tax or penalty. ©KDR/IIT KGP/RGSOIPL-2010
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Exclusion Government of India v. Taylor, [1955] AC 491. HL held that revenue law cannot be enforced in UK.
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India A. 261 of the Indian constitution provides that full
faith and credit will be given throughout India to public acts, records and judicial proceedings of the Union and the states, and final judgments of civil courts throughout India can be executed anywhere in India.
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Public policy Fundamental concern to the state and society at large. No definite definition
Justice and morality are subjective and relative notions Vary from time to time and society to society Violative of natural justice will not be enforced or
given effect to. Foreign contacts violative of English ideas of morality
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Public policy It should be narrowly construed. J. Cardozo: the courts are not free to refuse to enforce a
foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors unless help would violate some fundamental principle of justice, some prevalent conceptions of good morals, some deep-rooted tradition of the common weal. Loucks v. Standard Oil Co 224 NY 99. ©KDR/IIT KGP/RGSOIPL-2010
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Public policy Kuwait Airways Corporation v. Iraqi Airways, (2002) AC
883. ‘Power to disregard a provision of foreign law must be exercised exceptionally and with the greatest circumspection.’ Foreign Awards (Recognition And Enforcement) Act 1961 refuse to enforce foreign awards violates Indian public policy, justice or morality. Shahnaz v. Rizwan, (1965) 1 Q.B. 390. – polygamous marriage - domiciled Indian Muslims – wife entitled to entire dower on dissolution of marriage-contract can be enforceable in India. ©KDR/IIT KGP/RGSOIPL-2010
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Summary The case concerned a polygamous marriage governed by Muslim law. The couple hailed from India. The issue was whether the wife could ask the Court to enforce a term of the marriage contract which stipulated the payment by the husband to the wife of a deferred Mahr in the event of his divorcing her. This
clause was enforceable under Muslim law. The Court treated this provision purely as a contractual term. The fact that the contractual term owed its existence to the couple’s polygamous marriage was not treated as a bar to enforcement. The Court did not have jurisdiction to make post-divorce financial arrangements at the time of the decision, given the polygamous nature of the marriage. This followed from its jurisprudence on polygamy. It was important not to classify the Mahr as some form of ancillary relief (say, in today’s practice, the provision of a lump sum, which seems to be the Mahr’s approximate function) although the case itself preceded the development of lump sum awards by English courts. This was because the courts had established that it was contrary to public policy to enforce rights under polygamous unions. ©KDR/IIT KGP/RGSOIPL-2010
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Public policy Matrimonial Proceedings (Polygamous Marriages) Act
1972 recognizes marriages in England. Recognition of Divorces and Legal Separation Act, 1972. Court refuse to enforce the Foreign Awards Act 1961, on the ground that the award violated Indian public policy. Renusagar Power Co. Ltd v. General Electric Co. AIR 1994, SC 860. ©KDR/IIT KGP/RGSOIPL-2010
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Other countries – public policy If money lent in a country where gambling was legal, it
can be recovered in an English court – Saxby v. Fulton [1909] 2 KB 208. Foreign law which offends human rights would not be accepted in England. Law which is disregard of international law will not be recognised. Marriage by proxy – recognised in Argentina – lex loci celebrationis – not opposed to English public policy. ©KDR/IIT KGP/RGSOIPL-2010
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India Foreign takeover regulations: French subsidiary-
Indian company – French law will apply. - Technip SA
v. SMS Holding (Pvt) Ltd. Disability from succession: - no person can benefit
from a crime committed by him. foreign revenue laws cannot be enforced in India.
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Cases Chenni v. Chenni, (1965) Marriage between uncle and niece
Contrary to public policy Prejudicial to international relations.
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Foreign revenue laws Income Tax, custom duty, stamp duty, municipal contribution, capital gains tax etc. Government of India v. Taylor, (1955) A.C. 491 Tax gathering is not a matter of contract but of authority and administration as between the state and those within its jurisdiction.
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Foreign Penal Laws Criminal law Confiscatory law was considered as penal law
Money claims are not penal, remedial in nature and
can be enforced Huntington v. Attrill, (1893) AC 150. It is the law of the forum to decide whether the law is penal or remedial in nature.
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Domicile In personal matters, lex patrie is the governing law in
the civil law countries. Lex domicilli is the governing law in common law countries. Absurd results. Domicile and citizenship – Person’s civil rights – political status.
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Domicile Root of the concept is the permanent home. Intend to make that place his permanent home is
important. If he is never stayed in that place – not domiciled. Dual citizenship but only one domicile. Domicile attaches to a place or a country or a part of a country. Place of birth - If the person is born in India – Indian personal law. ©KDR/IIT KGP/RGSOIPL-2010
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Domicile If a suit is filed in Italian court for the succession to the
property of an Indian who died domiciled in Italy. Italian Private International Law – Italian court decides the case on the basis of nationality of the deceased. If the suit is filed in the Indian court, the Indian court will decide the case on the basis of Italian law – the law of domicile of the deceased.
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Cases Re Samara Re O’Keefe.
Protagonist of nationality : P.S. Mansini – speech
delivered in the University of Turin – 1851. Marriage in India – domicile – Technip SA v. SMS Holding (p) Ltd (2005) 5 SCC 465. There can be only one domicile in India – Pradeep Jain v. UOI, AIR 1984 SC 1420. Indian Succession Act, 1925. ©KDR/IIT KGP/RGSOIPL-2010
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Indian Succession Act, 1925. 5. Law regulating succession to deceased person's
immoveable and moveable property, respectively. -(1) Succession to the immoveable property in 3*[India] of a person deceased shall be regulated by the law of 3*[India], wherever such person may have had his domicile at the time of his death. (2) Succession to the moveable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death.
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Illustration A, having his domicile in 1*[India], dies in France,
leaving moveable property in France, moveable property in England, and property, both moveable and immoveable, in 1*[India]. The succession to the whole is regulated by the law of 1*[India].
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Illustration A, an Englishman, having his domicile in France, dies
in 1*[India], and leaves property, both moveable and immoveable, in 1*[India]. The succession to the moveable property is regulated by the rules which govern, in France, the succession to the moveable property of an Englishman dying domiciled in France, and the succession to the immoveable property is regulated by the law of 1*[India].
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Indian Succession Act 6. One domicile only affects succession to
moveables..-A person can have only one domicile for the purpose of the succession to his moveable property. Legitimate child - At the time of the birth of A, his father was domiciled in England. A's domicile of origin is in England, whatever may be the country in which he was born. Illegitimate - The domicile of origin of an illegitimate child is in the country in which, at the time of his birth, his mother was domiciled. ©KDR/IIT KGP/RGSOIPL-2010
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Indian Succession Act 9. Continuance of domicile of origin.-The
domicile of origin prevails until a new domicile has been acquired. 10. A man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin.
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India Movables – his domicile Immovable's – law of India
Indian Succession Act, 1925 – S.6 – 18 Constitution of India – Article 5 Whose parents are born in India.
Who had been ordinarily resident in India for at least 5
years before the commencement of the constitution. Indian courts uses the Indian Succession Act for the interpretation of the articles of Constitution. ©KDR/IIT KGP/RGSOIPL-2010
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Domicile of origin Common law – persons at birth. Father- legitimate
Mother – illegitimate Domicile of origin remains the same until obtains a
domicile of choice.
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India Kedar pandey v. Narain Bikram Sah, AIR 1966 SC 160. Child – domicile of father – legitimate – Mother – illegitimate. DP Joshi v. State of Madhya Bharat, AIR 1955 SC 334.
Central Bank of India v. Ram Narain, AIR 1955 SC 36 – intention to
reside for a long period. 25 years residence in India did not suffice – Jopp v. Wood – intention to return to Scotland. Yogesh Bharadwaj v. State of UP, AIR 1991 SC 356 The domicile of origin can be transmitted through several generations on member of which has ever resided for any length f time in the country of the domicile of origin.
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Wife Common law - Domicile of husband. Changed by law in 1973 in England
India - Follows common law Widow – remains of her late husband unless she
changes it.
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Domicile of choice Actual residence in pace with an intention to reside
permanently or indefinitely in that place. Inland Revenue Commissioner v. Bullock, [1976] 1 WLR 1178. Intention to make a place his permanent home. Length of residence is only a factor. Married a local woman or his wife and children with him. Established a business in a place Matrimonial in a place is an important factor. ©KDR/IIT KGP/RGSOIPL-2010
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India Sankaran Govindan v. Lakshmi Bharathi, AIR 1974 SC
1764. Thomas Edmund Teighmouth Shore v. Hugh Carcy Morgan (1935) ILR 62 Cal 869. – missionary who live 60 years in India and died in India – acquired domicile of choice in India.
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Thank you
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Domicile Dr. Raju KD Assistant Professor Rajiv Gandhi School of Intellectual Property Law IIT Kharagpur
West Bengal
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Domicile In personal matters, lex patrie is the governing law in
the civil law countries. Lex domicilli is the governing law in common law countries. Absurd results. Domicile and citizenship – Person’s civil rights – political status.
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Domicile Root of the concept is the permanent home. Intend to make that place his permanent home is
important. If he is never stayed in that place – not domiciled. Dual citizenship but only one domicile. Domicile attaches to a place or a country or a part of a country. Place of birth - If the person is born in India – Indian personal law. 9/14/2010
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Domicile If a suit is filed in Italian court for the succession to the
property of an Indian who died domiciled in Italy. Italian Private International Law – Italian court decides the case on the basis of nationality of the deceased. If the suit is filed in the Indian court, the Indian court will decide the case on the basis of Italian law – the law of domicile of the deceased.
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Cases Re Samara Re O’Keefe.
Protagonist of nationality : P.S. Mansini – speech
delivered in the University of Turin – 1851. Marriage in India – domicile – Technip SA v. SMS Holding (p) Ltd (2005) 5 SCC 465. There can be only one domicile in India – Pradeep Jain v. UOI, AIR 1984 SC 1420. Indian Succession Act, 1925. 9/14/2010
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Indian Succession Act, 1925. 5. Law regulating succession to deceased person's
immoveable and moveable property, respectively. -(1) Succession to the immoveable property in 3*[India] of a person deceased shall be regulated by the law of [India], wherever such person may have had his domicile at the time of his death. (2) Succession to the movable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death.
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Illustration A, having his domicile in 1*[India], dies in France,
leaving movable property in France, moveable property in England, and property, both moveable and immoveable, in [India]. The succession to the whole is regulated by the law of 1*[India].
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Illustration A, an Englishman, having his domicile in France, dies
in 1*[India], and leaves property, both moveable and immoveable, in 1*[India]. The succession to the movable property is regulated by the rules which govern, in France succession to the immoveable property is regulated by the law of 1*[India].
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Indian Succession Act 6. One domicile only affects succession to
movables..-A person can have only one domicile for the purpose of the succession to his moveable property. Legitimate child - At the time of the birth of A, his father was domiciled in England. A's domicile of origin is in England, whatever may be the country in which he was born. Illegitimate - The domicile of origin of an illegitimate child is in the country in which, at the time of his birth, his mother was domiciled. 9/14/2010
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Succession 7. Domicile of origin of person of legitimate
birth.- The domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled; or, if he is a posthumous child, in the country in which his father was domiciled at the time of the father's death. Illustration At the time of the birth of A, his father was domiciled in England. A's domicile of origin is in England, whatever may be the country in which he was born. 9/14/2010
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Succession 8. Domicile of origin of illegitimate child.- The
domicile of origin of an illegitimate child is in the country in which, at the time of his birth, his mother was domiciled.
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Indian Succession Act 9. Continuance of domicile of origin.-The
domicile of origin prevails until a new domicile has been acquired. 10. A man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin.
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Succession 10. Acquisition of new domicile.- A man acquires a
new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin. Explanation.- A man is not to be deemed to have taken up his fixed habitation in India merely by reason of his residing there in the civil, military, naval or air force service of Government, or in the exercise of any profession or calling.
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Succession 11. Special mode of acquiring domicile in India.-
Any person may acquire a domicile in India by making and depositing in some office in India, appointed in this behalf by the State Government, a declaration in writing under his hand of his desire to acquire such domicile; provided that he has been resident in India for one year immediately preceding the time of his making such declaration.
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India Movables – his domicile Immovable's – law of India
Indian Succession Act, 1925 – S.6 – 18 Whose parents are born in India. Indian courts uses the Indian Succession Act for the
interpretation of the articles of Constitution.
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Domicile of origin Common law – persons at birth. Father- legitimate
Mother – illegitimate Domicile of origin remains the same until obtains a
domicile of choice.
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India Kedar pandey v. Narain Bikram Sah, AIR 1966 SC 160. Child – domicile of father – legitimate – Mother –
illegitimate. DP Joshi v. State of Madhya Bharat, AIR 1955 SC 334. Central Bank of India v. Ram Narain, AIR 1955 SC 36 – intention to reside for a long period. Yogesh Bharadwaj v. State of UP, AIR 1991 SC 356 The domicile of origin can be transmitted through several generations on member of which has ever resided for any length f time in the country of the domicile of origin.
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Wife Common law - Domicile of husband. Changed by law in 1973 in England
India - Follows husband’s Widow – remains of her late husband unless she
changes it.
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India Section 15 : Domicile Acquired by woman on marriage
- By marriage a woman acquired the domicile of her husband, if she had not the same domicile before. Section 16: Wife's domicile during marriage - A wife's domicile during her marriage follows the domicile of her husband. Exception - The wife's domicile no longer follows that of her husband if they are separated by the sentence of a competent Court, or if the husband is undergoing a sentence of transportation. 9/14/2010
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Domicile of choice Actual residence in pace with an intention to reside
permanently or indefinitely in that place. Inland Revenue Commissioner v. Bullock, [1976] 1 WLR 1178. Intention to make a place his permanent home. Length of residence is only a factor. Married a local woman or his wife and children with him. Established a business in a place Matrimonial in a place is an important factor. 9/14/2010
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India Sankaran Govindan v. Lakshmi Bharathi, AIR 1974 SC
1764. Thomas Edmund Teighmouth Shore v. Hugh Carcy Morgan (1935) ILR 62 Cal 869. – missionary who live 60 years in India and died in India – acquired domicile of choice in India.
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Indian SC Domicile is a mixed question of law and fact and there is
perhaps no chapter in the law that has from such extensive discussion received less satisfactory settlement. There is no doubt attributable to the nature of the subject, including as it does, inquiry into tie animus of persons who have either died without leaving any clear record of their intentions, but allowing them to be collected by inference from acts often equivocal; or who, being alive and interested, have a natural tendency to give their bygone feelings a tone and colour suggested by their present inclinations. See Bell v. Kennedy (1868) L.R. 1 Se & Div. 30", 9/14/2010
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Cheshire One has to consider the tastes, habits, conduct,
actions, ambitions, health, hopes and projects of a person because they are all considered to be keys to his intention to make a permanent home in a place See the Speech of Lord Atkinson in Winens v. A.G. 1904 A.C. 287.
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General rule First, no person can be without a domicile. It is well
established that everyone must have a domicile. A person cannot choose to be without a domicile, even though he can choose to change his domicile. Every independent person must have a domicile, either of origin or of choice. Secondly, no person can at the same time for the same purpose have more than one domicile. Thirdly, an existing domicile is presumed to continue until it is proved that a new domicile has been acquired. 9/14/2010 KDR/IIT KGP/RGSOIPL-2010 24
Domicil The burden of proving a change of domicile rests with
the person asserting such a change. Fourthly, the courts in a specific country will apply local law in determining a person's domicile.
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Nationality and domicile Nationality represents a person’s political status Domicil represents his civil status
Nationality yield a predictable law Domicile yields an appropriate but frequently an
unpredictable law. Habitual residence or ordinary residence Physical presence with some degree of continuity. R v. Barnet London Borough Council, ex p shah, 1983. Settled for his ordinary purposes. 9/14/2010
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O’Keefe case British national Lived in Naples for 37 years – domicile - Italy
Died in Naples Domicile of origin was Eire Succession of movable property in England
There was no law relating to succession – applied the
law of Eire – domicile of origin
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1951 Hague conference In any suit, if there is any conflict between the laws of
two countries, One to nationality and on to domicile 1. Then the court would apply the domestic law of the domicile of the person concerned. 2. if there is a conflict between the laws of two countries both of which adhere to principle of domicile, then the domestic law of the country of the domicile of the person concerned would apply. 9/14/2010
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Hague principles 3. if there is a conflict between two countries following
the principle of nationality then the law of the nationality of the person concerned would apply. 1960 – Hague conference – which the deceased had closest contact. Accepted in 1960 Convention on guardianship and 1964 convention on Adoption Intention to live permanently and indefinitely.
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Indian and English law No person be without a domicile – Udny v. Udny, 1869. No person can have simultaneously two domiciles
Domicile denoted the connection between a person
and a territorial system of law. The presumption is always in favour of continuance of an existing system of law.
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Domicile of origin Acquired by operation of law Legitimate son-father
Illegitimate – mother Married – Matrimonial Proceedings Act, 1973 Sankaran Govindan Case
Re O’ Keefe
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Domicile of choice Acquisition of a fresh domicile are residence and
intention. Residence in the country of domicile of choice. Intention to live permanently. Physical presence in that country as an inhabitant of it. Intention can be inferred
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India In India, a person's domicile of origin prevails until he
acquires a new domicile. If a person is not insane, on reaching eighteen years of age he may acquire a domicile of choice in a country by fulfilling two conditions: residence in the country concerned and intention to live there permanently. Section 10 of the Indian Succession Act 1925 provides that a person acquires a new domicile by taking up his fixed habitation in a country which is not his domicile of origin. 9/14/2010
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Choice Jopp v. Wood, (1865) – it was held that a residence of
25 years in India did not suffice to give an Indian domicil His intention was to return to Scotland, his birth place. If there is more than one residence – chief residence – Plummer v. IRC, (1988) 1 All ER 97.
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India It was held by the Supreme Court of India in Central
Bank of India v Ram Narayan, 1955 SC 36. even though the defendant had the intention to move to India, he was still domiciled in Pakistan before he actually come to India. The period of residence need not be long, and brief residence will not necessarily negative the possibility of acquiring a domicile.
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India Michael Anthony Rodrigues v. State of Bombay, 1956.
Bom. 729. 1918 – Goan nationality came to Bombay in 1927. Tailoring business – 40 years. Michael never visited Goa. Joined Royal Indian Armed Forces in 1946 He acquired the domicile of choice in Bombay and abandoned the Goan domicile or origin.
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Intention The required intention is to reside in a country
permanently or for an unlimited time. The intention must be fixed but not fickle, and must also be directed towards one particular country. A person's intention can be gathered from all the events and circumstances of his life.
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Intention Kedar Pande v Narayan Bikram Shah 1966 SC 160. Whether Shah domiciled in India in 1949
Father – Nepal Born in Banaras – educated in India Mansions built by his father in 1938
1949 – Indian passport issued Partition suit in 1982 Contested 1957 elections to Ram Nagar Grama
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Employment The intention to reside permanently or for an
unlimited time in a country must be made voluntarily. A person is not deemed to have taken up his fixed habitation in India merely because of residing there in the civil, military, naval or air force service or in the exercise of any profession or calling. Explanation to Section 10 of the Indian Succession Act 1925.
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Abandoning Where a person stops residing in the country of the
domicile of choice and has no intention to reside there indefinitely, he abandons his domicile of choice. Mere intention to abandon, or mere residence in another country, will not suffice. The concept of revival of domicile of origin does not apply in India since a person's domicile continues until he acquires another one or his former domicile resumes.
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Jurisdiction of Courts
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Who can file suits? England - Subjects as well as foreigners, and body
corporate in England or outside? Enemy aliens – cannot file suit A foreigner can file a suit in India – Nizamuddin v Husseini AIR 1960 MP 212. A Pakistani can file a suit once the war is over – Gyasuddin v Allah Tala Wakf Mausuma AIR 1986 All. 39. An enemy alien permitted by the government to stay in India can file a suit. 9/14/2010
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Immunity Sovereigns Theory of absolute immunity –
The Cristina, [1938] AC 485 – damages cannot be
recovered from a foreign sovereign. Governmental corporations are also immune. Modern theory – Restricted immunity Acta jure imperri – acts of a sovereign state Acta jure gestionis – acts of a commercial nature.
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Jurisdiction Nationality – civil law countries Domicile – common law countries
Against whom an action can be filed Who can file an action. What type of action may be filed.
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Actions against whom? Actions inter partes – action in personam. Payment of damages, breach of contract, tort, action
for recovery of debt. If the defendant is present within the jurisdiction. When the court assumes jurisdiction against an absentee defendant. When the defendant submits to the jurisdiction.
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Civil Procedure Code 1907 S.15 - Every suit shall be instituted in the Court of the
lowest grade competent to try it. 16. Suits shall be instituted in the Court within the local limits of whose jurisdiction the property is situate. Suit can be filed either in the court within whose jurisdiction the property situated or the defendant actually and voluntarily resides or carries on business.
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Different jurisdictions 17. Suits for immovable property situate within jurisdiction of different Courts.
Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Court, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate
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CPC 18. Place of institution of suit where local limits of
jurisdiction of Courts are uncertain. Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction
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CPC 19. Suits for compensation for wrongs to person or
movables. Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts. 9/14/2010
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S.20 Other suits to be instituted where defendants
reside or cause of action arises. the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain. the cause of action, wholly or in part, arises.
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S.83 Alien - Every person residing in a foreign country, the Government of any country which is at war with
India and carrying on business in that country without a licence in that behalf granted by the Central Government, shall, for the purpose of this section, be deemed to be an alien enemy residing in a foreign country.
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S.84 foreign state – Immunity A foreign State may sue in any competent Court:
Provided that the object of the suit is to enforce a private right vested in the Ruler of such State or in any officer of such State in his public capacity.
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S.86 86. Suits against foreign Rulers, Ambassadors and
Envoys. No foreign State may be sued in any Court otherwise competent to try the suit except with consent of the Central Government certified in writing by a Secretary to that Government: Provided that a person may, as a tenant of immovable property sue without such consent as aforesaid 2[a foreign State] from whom he holds or claims to hold the property. 9/14/2010
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Immunity No foreign state head or ambassadors or high
commissioners or diplomatic personnel can be arrested under the CPC. Immunity did not extend to insolvency proceedings. It does not applicable to probate proceedings. Immunity extends to trading activities. Rent suit is not immune from CPC. Foreign states and diplomats enjoy exemption from taxation. 9/14/2010
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Thank you
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Jurisdiction of courts Dr. Raju KD Assistant Professor Rajiv Gandhi School of Intellectual Property Law IIT Kharagpur
West Bengal
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Jurisdiction Territorial jurisdictions National law
Principle of allegiance – all citizens owe allegiance to
their state and it is their duty to obey its laws and orders wherever they might be. Nationality is the basis of jurisdiction in civil law countries. Domicile – commonwealth countries Foreign sovereigns, personnel of the diplomatic missions and international organizations. ©KDR/IIT KGP/RGSOIPL-2010
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English law English court have jurisdiction if the defendant is
served with process. Irrespective of he is a foreigner or was casually present in England. Even a tourist in transit - when the defendant is present within the jurisdiction - when the court assumes jurisdiction against an absentee defendant. - when the defendant submits to the jurisdiction. ©KDR/IIT KGP/RGSOIPL-2010
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Early case Gurdial Singh v. Raja of Faridkot, (1894) 22 Cal. 222. The Privy Council held that: ‘being properly territorial and
attaching, with certain restrictions, upon every person permanently or temporarily resident within the territory, does not follow a foreigner, after his withdrawal thence, and living in another state. Nor to the courts of state in which the cause of action has arisen, nor in cases of contract to those of the locus solutionis, should resort be hard by the plaintiff, but to the courts of the state in which the defendant resides, the courts of the latter state having jurisdiction in all personal actions. ©KDR/IIT KGP/RGSOIPL-2010
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In that case, A filed a suit against B in the court of the Native State of Faridkot, claiming Rs. 60,000 alleged to have been misappropriated by B, while he was in A's service at Faridkot. B did not appear at the hearing, and an ex parte decree was passed against him. B was a native of another Native State Jhind. In 1869, he left Jhind and went to Faridkot to take up service under A. But in 1874, he left A's service and returned to Jhind. The present suit was filed against him in 1879; when he neither resided at Faridkot nor was he domiciled there. On these facts, on general principles of International Law, the Faridkot court had no jurisdiction to entertain a suit against B based on a mere personal claim against him. The decree passed by the Faridkot court in these circumstances was an absolute nullity. When A sued B in a court in British India, against B on the judgment of the Faridkot court, the suit was dismissed on the ground that Faridkot court has no jurisdiction to entertain the suit. The mere fact that the embezzlement took place at Faridkot, was not sufficient to give jurisdiction to the Faridkot court would have had complete jurisdiction to entertain the suit and to pass a decree against him.
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Jurisdiction Action lies in the court within whose jurisdiction the
defendant resides and if the defendant has left the jurisdiction the court cannot try the suit even if the cause of action arose within the jurisdiction.
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Rule of territoriality Private International Law same as that of in England. Kasinath v. Anant, (1899) Bom. 407
Recovery of share on the profits from a property
outside its jurisdiction. Defendant also residing outside the jurisdiction. No jurisdiction to entertain the suit according to CPC. .
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Early positions 239. Srinivas v. Venkata Varda Ayyangar, (1906) 29
Mad. Defendant was in Madras to practice as an apprentice to a Vakil of the High Court. At the time of suit he was within the jurisdiction of the court. ‘resident or present in the country’ at the time of suit. Mere presence of the defendant is sufficient.
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Pvt. Int.n. law Patna High Court observed that ‘the court has no
jurisdiction to entertain a suit against a foreigner who did not permanently or temporarily reside within its jurisdiction or who had not submitted to its jurisdiction. Suresh Narayan Sinha v. Akhauri Balbhadra Prasa, 1957 Pat. 256. Indian courts have jurisdiction if the cause of action partly or wholly arises in India.
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Who can file suits? England - Subjects as well as foreigners, and body
corporate in England or outside? Enemy aliens – cannot file suit A foreigner can file a suit in India – Nizamuddin v Husseini AIR 1960 MP 212. A Pakistani can file a suit once the war is over – Gyasuddin v Allah Tala Wakf Mausuma AIR 1986 All. 39. An enemy alien permitted by the government to stay in India can file a suit. ©KDR/IIT KGP/RGSOIPL-2010
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Jurisdiction Nationality – civil law countries Domicile – common law countries
Against whom an action can be filed Who can file an action. What type of action may be filed.
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Submission to jurisdiction Express agreement or by conduct Conduct: voluntarily appears as a defendant.
Foreigner defendant files an affidavit and appears
through counsel to argue the case on merit. When the foreigner-defendant moves to set aside a default judgment. Carrying on business in England is amount to submission of jurisdiction. Submission by contract – express not implied. ©KDR/IIT KGP/RGSOIPL-2010
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Indian law If the person is outside its territories, the court will
have jurisdiction only when if he submits to the jurisdiction of the court. If the judgment delivered in his absence would be null and void. Appearing in the court and pleading the case is sufficient – Ramanathan chetiar v. Kali Muthu Pillai, (1914) 37 mad. Bahrein Petroleum Co. Ltd. v. P.J. Pappu, 1966 SC 634 – continued participation in litigation. ©KDR/IIT KGP/RGSOIPL-2010
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Jurisdiction Fernandes v. Ray, 21 Bom. 373. – Political agent of Kolhapur State
On the way to London – stayed in Bombay for 5 days Whether 5 days stay confer jurisdiction on the court. If the process is served on him – court have the
jurisdiction.
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Actions against whom? Actions inter parties – action in personam. Payment of damages, breach of contract, tort, action
for recovery of debt. If the defendant is present within the jurisdiction. When the court assumes jurisdiction against an absentee defendant. When the defendant submits to the jurisdiction.
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Common law If the cause of action, fully or partly within the
jurisdiction of the court. Jurisdiction in personam – even the court can exercise jurisdiction in the absence of defendant.
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Civil Procedure Code 1908 S.15 - Every suit shall be instituted in the Court of the
lowest grade competent to try it. 16. Suits shall be instituted in the Court within the local limits of whose jurisdiction the property is situate. Suit can be filed either in the court within whose jurisdiction the property situated or the defendant actually and voluntarily resides or carries on business. Wrong done to person or movables – whose jurisdiction the wrong was done, or the defendant actually and voluntarily resides or carries on business or personally works for gain. ©KDR/IIT KGP/RGSOIPL-2010
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Different jurisdictions 17. Suits for immovable property situate within jurisdiction of different Courts.
Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Court, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate
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CPC 18. Place of institution of suit where local limits of
jurisdiction of Courts are uncertain. Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction
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CPC 19. Suits for compensation for wrongs to person or
movables. Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts. ©KDR/IIT KGP/RGSOIPL-2010
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S.20 Other suits to be instituted where defendants
reside or cause of action arises. the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain. the cause of action, wholly or in part, arises. Rule 20 – substituted service. Rule 26 – service of summons through political agents. ©KDR/IIT KGP/RGSOIPL-2010
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S.20 When the permanent or temporary residence of the defendant is within the jurisdiction, 2. If the defendant is engaged in some business within the jurisdiction, 3. If the defendant is working for gain within the jurisdiction, 4. If the cause of action, wholly or in part, arises within the jurisdiction. 1.
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Carries on business Frontier Bank v. Smt. Prakash Wati Bahl, ILR 1950
Punjab. Deposited money at Dera Ismail Khan, headquarters – Pakistan. Transfer to Delhi Branch failed. Explanation II to S. 20 C.P.C. H. Ahmed & Co. v. Kohinoor Glass Factory Ltd. 1961 A.P. 470 (F.B). If the defendant carry on business, jurisdiction to entertain the suit. ©KDR/IIT KGP/RGSOIPL-2010
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Cause of action Gurudayal Singh v. Raja of Faridkot, (1894) 22 cal. 222. Action lies in the court within whose jurisdiction the
defendant resides and if the defendant has left the jurisdiction the court cannot try the suit even if the cause of action arose within the jurisdiction. Patna High Court held that the court has no jurisdiction to entertain a suit against a foreigner who did not permanently or temporarily reside within its jurisdiction or who had not submitted to its jurisdiction. ©KDR/IIT KGP/RGSOIPL-2010
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Contract ABC Laminart Pvt Ltd v. AP Agencies, Salem AIR 1989
SC 1239. Contract was made Was to be performed Money under it was payable Where the breach occurred If a defendant not resident in India had submitted to the jurisdiction of the court. Admiralty jurisdiction ©KDR/IIT KGP/RGSOIPL-2010
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S.83 Except alien enemy, all others ca file suit or
proceedings in an Indian Court. An alien friend may sue in any Indian court. An alien enemy residing in a foreign country cannot sue in Indian courts. An alien enemy residing in India with the permission of the Government of India can sue – Angelina v. Joseph George Reittsteck, 1917 All. 374.
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S.84 foreign state – Immunity A foreign State may sue in any competent Court:
Provided that the object of the suit is to enforce a private right vested in the Ruler of such State or in any officer of such State in his public capacity. Rahimatoola v. Nizame of Hyderabad, (1958) A.C. 379.
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S.86 86. Suits against foreign Rulers, Ambassadors and
Envoys. No foreign State may be sued in any Court otherwise competent to try the suit except with consent of the Central Government certified in writing by a Secretary to that Government: Provided that a person may, as a tenant of immovable property sue without such consent as aforesaid 2[a foreign State] from whom he holds or claims to hold the property. ©KDR/IIT KGP/RGSOIPL-2010
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Consent of Central Government Consent of the Central Government is mandatory –
S.86(3). Such consent can only be granted according to S.86(2). No consent can be refused without giving a reasonable opportunity to the applicant. The Government should show cogent reason for refusing permission. Consent must be obtained before the institution of the suit. ©KDR/IIT KGP/RGSOIPL-2010
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Exceptions Immunity does not extend to award under Arbitration,
proceedings under labour laws insolvency proceedings Probate proceedings
Recovery of rent Rulers of Indian states are not exempted from income
tax.
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Immunity No foreign state head or ambassadors or high
commissioners or diplomatic personnel can be arrested under the CPC. Diplomatic persons. Immunity not extends to trading activities. Rent suit is not immune from CPC. Foreign states and diplomats enjoy exemption from taxation.
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Immunity Sovereigns Theory of absolute immunity –
The Cristina, [1938] AC 485 – damages cannot be
recovered from a foreign sovereign. Governmental corporations are also immune. Modern theory – Restricted immunity Acta jure imperri – acts of a sovereign state Acta jure gestionis – acts of a commercial nature.
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Cases Rahimtoola v. Nizam of Hyderabad, (1958) AC 397. The principle of sovereign immunity is not founded on
any technical rules of law. It is founded on broad considerations of public policy, international law and comity. The Christina, (1938) AC 485 – The courts of the country will not impeach a foreign sovereign. Immunity is not granted if the state is not recognised.
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Foreign sovereign Person and property. Mighell v. The Sultan of Johore, (1894)
Indian provisions 84-87A. Recognition de facto or de jure has the same effect,
German Democratic Republic v. Dynamic Industrial Undertaking Ltd., 1972 Bom. 27. Prior permission under S.86 is mandatory for filing a suit against an immune person under S.86.
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Indian law Diplomatic Relations (Vienna Convention) Act, 1972. Act made on the basis of Vienna Convention on
Diplomatic Intercourse and Immunities of 1961. Vienna Convention of 1967 was included as an annex.
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England State Immunity Act, 1978 Act of commercial nature - no immunity
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Hague Convention on Choice of Court, 1965
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Hague Convention, 1965 Convention applies to agreements on the choice of a
court in civil and commercial matters. Nationality of the parties are irrelevant. Designated courts according to domestic law. Decisions of the chosen court must be recognised and enforced in all contracting states. None of the common law countries are implemented the Convention but follows the same principles. Members of the Convention - 0 ©KDR/IIT KGP/RGSOIPL-2010
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Brussels Convention
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Brussels Convention, 1968. EC Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters. Labour, torts and contract of employment are excluded. Maintenance cases are fell within the Convention. with the goal of increasing economic efficiency and promoting the single market by harmonizing the rules on jurisdiction and preventing parallel litigation. It does not include revenues, customs or administrative matters.
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Objective It set out uniform rules for the assumption of jurisdiction by Member States in civil and
commercial cases. In addition, the Convention laid down uniform rules relating to the recognition and enforcement of civil and commercial judgments among the Member States. Free circulation of judgments throughout the Community. ©KDR/IIT KGP/RGSOIPL-2010
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Regulations Regulation 1346/200018 relating to insolvency proceedings; • Regulation 1347/200019 (commonly referred to as Brussels II) which
deals with jurisdiction over and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses; Regulation 44/200120 which is concerned with jurisdiction over, and the recognition and enforcement of judgments in civil and commercial matters. This is a revised and updated version of the Brussels Convention that replaces the 1968 original.
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Applicability The Brussels Regime covers legal disputes of a civil or
commercial nature (article 1). Article 4 preserves the traditional rules for defendants who are not domiciled in a member state. That is, if a defendant is domiciled elsewhere, then the Regime does not apply and the national court hearing the case is left to determine jurisdiction based on the traditional rules otherwise governing such questions in their legal system.
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Domicile In general, it is the domicile of the defendant that
determines which of these instruments applies in a given case.
Article 52 of the Convention – courts of the
contracting parties have the jurisdiction to decide the question of domicile. Mere presence of the defendant is not sufficient domicile. The Convention will apply only when a foreign element is involved. ©KDR/IIT KGP/RGSOIPL-2010
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Sue in any Member country A Member can sue in another court of the Member. If
the parties are brought case in different jurisdictions, the first court will ceased of the matter. The Tatry Case – EU Court of Justice – ‘the second court must decline jurisdiction only to the extent of the proceedings and parties before it.’
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Jurisdiction under Lugano Convention, 1988 Lugano Convention on Jurisdiction and Enforcement
of Judgments. 6 members of the EC trading partners of European Free Trade Association (EFTA). Members: UK, Denmark, Iceland, Norway, Liechtenstein , Sweitzerland, Civil and commercial matters. Defendant is domiciled in EC. Lugano Convention is parallel to the Brussels Convention. ©KDR/IIT KGP/RGSOIPL-2010
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Convention It is a parallel and amended version of the Brussels
Convention. If the defendant is domiciled on any contracting state, have the jurisdiction. Any EC Member state is a party to Brussels Convention, it will apply in matters of jurisdiction. If the defendant is domiciled in an EFTA Contracting State, Lugano Convention will apply.
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Convention on choice of court agreements, 2005
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Application Parties – Singed – EU, US Ratified – Mexico
Convention shall apply in international cases to
exclusive choice of court agreements concluded in civil or commercial matters. Recognition and enforcement of foreign judgments
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India
Hague Conference eon Private International Law since
2008. 1. Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents [12] 2. Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters [14] 3. Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters [20] 4. Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption [33] ©KDR/IIT KGP/RGSOIPL-2010
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Thank you
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Foreign Judgments Dr. Raju KD Assistant Professor Rajiv Gandhi School of Intellectual Property Law IIT Kharagpur
West Bengal
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Theories of recognition of J. Theory of comity No foreign judgment can be recognised unless there is
reciprocity. Lot of practical problems. Obligation theory - adjudication by a foreign court becomes a legal obligation, which can be enforced in any country. Doctrine of obligation – no problem of reciprocity.
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Other theories Grounds of judicial reason or ideas of social value or
both. Every judgment must be recognised in the interest of justice. Theory of acquired rights – since the foreign judgment implies an acquisition of a right, it should be enforced.
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Enforcement English courts have been enforcing foreign judgments
from the seventeenth century. Early decisions have favoured the theory of comity. Later the court supported the theory of obligation. Early cases a foreign judgment was treated as a primary evidence of rights and liabilities of the parties. Bur in 1870 – HL – held that a foreign judgment of a court of competent jurisdiction was conclusive and could not be re-examined on merits. KDR/IIT KGP/RGSOIPL-2010
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England A plaintiff who had obtained a judgment from a
foreign court has the option either to bring an action on the foreign judgment or to sue on the original cause of action. First judgment will be merely treated as a primary evidence of tights and liabilities of the parties. Godard v. Grey (1870) 6 QB 139. - foreign judgment of a court of competent jurisdiction was conclusive and could not be re-examined on merits.
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Foreign judgment
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Recognition in India S.13 of CPC Indian courts absorbed the comity theory and
obligation theories to be the basis of the enforcement of foreign judgments. J. Shah in Viswanathan v. Abdul Wazid, 1963 SC 1 – held that ‘though the rules of private international law are different in different countries, yet on the basis of comity certain rules are applied practically by all the countries.’
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India Foreign judgments are recognized and enforced under
the statutory provision contained in the CPC. S.13 – ‘A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title.’
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Exceptions a) where it has not been pronounced by a Court of
competent jurisdiction;
(b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of 1[India] in cases in which such law is applicable;
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Exceptions (d) where the proceedings in which the judgment
was obtained are opposed to natural justice; (e) where it has been obtained by fraud; (f) where it sustains a claim founded on a breach
of any law in force in 1[India].
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S.14 – presumption The Court shall presume upon the production of any
document purporting to be a certified copy of a foreign
judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving
want of jurisdiction. KDR/IIT KGP/RGSOIPL-2010
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s.44 A ‘the decrees of foreign courts which can be executed
are the decrees of superior courts of a reciprocating territory as if it is the decree of the court executing the decree.
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Indian law A foreign judgment creditor can bring an action on a
foreign judgment. Res – judicata can be applied in foreign judgments. Indian court cannot impeach a foreign judgment on the ground of error on internal law or an error of fact or procedural error. The foreign judgment should operate as res judicata in the country where it has been delivered.
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Competent jurisdiction The court must have the jurisdiction to deal the case. Gurdayal Singh v. Raja of Faridkote, (1894) AC 670. The PC held that ‘in a personal action… a decree
passed in absentem by a foreign court, to the jurisdiction of which the defendant has not in any way submitted himself is by international law an absolute nullity.’
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Judgments in personam Personal jurisdiction depends upon the right of the
court to summon the defendant. Jurisdiction of personal action depend upon the presence of the defendant within the jurisdiction. Mallappa Yellappa v. Raghavendra Sham Rao, ILR (1938) Bom. 16. 6 cases in which foreign court may have jurisdiction: 1. if the defendant is subject of the foreign country. 2. if the defendant is served with the process while temporary present within the foreign country. KDR/IIT KGP/RGSOIPL-2010
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Factors 3. if the defendant is a resident in the foreign country
when action has begun against him. 4. if the defendant in his character as plaintiff in the foreign action has selected the forum where the judgment was given against him. 5. if the defendant voluntarily appeared before the foreign court; 6. If the defendant has contracted to submit to the jurisdiction of the foreign court. KDR/IIT KGP/RGSOIPL-2010
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Action in rem A proceeding against a ship or other chattel in which
the plaintiff seeks either to have the res judicata to him in property or possession, or to have it sold under the authority of the court, and the proceeds, or part thereof, adjudicated to him, in satisfaction of his pecuniary claims. Taylor v. Judge of the Court of Registration.
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Action in rem Judgments in rem are conclusive. Judgment in rem against tangibles – ship – admiralty
jurisdiction. Judgment of divorce is a judgment in rem – controversial? A res is a tangible thing within the jurisdiction of the court. A judgment in rem is a judgment under (a) possession or property in a thing is adjudicated to a person, (b) the sale of a thing is decreed in satisfaction of a claim againstKDR/IIT the KGP/RGSOIPL-2010 thing itself. 18
In -Rem (c) the status is adjudicated upon, such as a decree of
nullity or divorce; (d) property is ordered to be sold by way of administration in bankruptcy or on death. Difference: res – binds all persons claiming an interest in the property inconsistent with the judgment even though pronounced in their absence. In personam – merely determines the rights of litigants inter se. KDR/IIT KGP/RGSOIPL-2010
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Rem Jurisdiction in rem accorded universal recognition,
even if the defendant is neither a resident of the foreign country nor has submitted to the jurisdiction of its courts.
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Immovable property
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Ex-parte decree Exparte decree of the foreign Court cannot be presumed to
be on merit by the aid of Section 114(e) of Evidence Act. Where ex parte judgment passed granting decree for money but nothing indicated whether any documents were looked into or whether merits of the case considered. Such judgements will not be enforceable in India. For more details kindly visit: M/s International Woollen Mills Vs.M/s Standard Wool (U.K.) Ltd. AIR 2001 SC 2134 – 2001(5)SCC 265 – 2001 (3) Rec Civ R 158 – 2002 (1) Mad LW 28 – 2001(2) LR 1765 – 2001(20 Cur CC 148 – 2001 (2) Civil Court C 448 – 2001 (44) All LR 354 – 2001 (3) All Mah LR 554 KDR/IIT KGP/RGSOIPL-2010
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conclusiveness Where the judgment was not on merit and the
judgment was given ex parte only on the basis of pleadings and documents of the plaintiff – Defense filed before Hongkong Court not taken into consideration – Held the judgment being not on merit did not have force of law For execution of such decree prior permission of Central Govt. was necessary. AIR 1990 Bom.170 – Algemene Bank Nederland NV Vs. Satish Dayalal Choksi. KDR/IIT KGP/RGSOIPL-2010
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Merits A foreign judgment cannot be re-opened on merit to
its logical conclusion. S.13(b) of CPC – a foreign judgment shall not be conclusive if it has not been given on the merits of the case. Court cannot sit in appeal over a foreign judgment. Judgment must be on merit. A compromise judgment is not on merit – GuidmetlaChnia v. Kota venkata Subba Rao, 1946 Mad. 296. KDR/IIT KGP/RGSOIPL-2010
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Judgment opposed to natural Justice A foreign judgment cannot be implemented if it is
contrary to natural justice. Defendant is not served with notice – Procedural irregularities Audi alteram partem Judge personally interested in the case
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Divorce decree Foreign divorce decree where husband and wife were
Hindus and governed by Hindu Marriage Act. When suit for judicial separation and maintenance was pending in Indian Court, husband obtained decree of divorce from the Court in USA though wife did not submit to the jurisdiction of USA, held, such decree obtained by husband was not enforceable in India [AIR 2003 Del. 175 – Smt.Anubha Vs. Vikas Aggarwal and Others]
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Judgment opposed to Public Policy The court will decline to enforce a foreign judgment if
it is opposed to public policy. Foreign judgment awarding perpetual maintenance to illegitimate child would not be enforced – Re Macartney [1921] 1 Ch 522. Agreement obtained by undue influence. Judgment vitiated by fraud
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Against Indian Law Acceptance
of foreign judgement when not contradictory to principle of law laid down by Indian legislature. If such foreign judgement is contrary to Indian law it will not be acceptable AIR 2003 Cal.105 Murari Ganguly and others Vs.Kanailal Garai and others.
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Indian constitution Article 261 – final judgments or orders delivered or
passed by the civil courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law. Reciprocal enforcement of foreign judgments (S.44A(1)] Foreign judgments can be executed only in District courts.
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Hague Convention The Hague Convention on the Recognition and
Enforcement of Judgments in Civil and Commercial Matters, 1971.
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30
Thank you
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KD Raju
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Direct execution of foreign decrees Ordinarily foreign decrees cannot be executed directly. To fie a suit for enforcement.
Executed directly on the basis of reciprocity. Direct execution in certain cases
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2
Indian courts From April 1, 1951 – CPC is applicable to all states of
the Indian Union. (A. 261 – 3) of the Indian Constitution provides “ Final judgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law.” S.43 and 44 of CPC – (CPC Amendment, 1951) – execution of decrees and orders of civil and revenue courts. KDR/IIT KGP/RGSOIPL-2010
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S. 43, 44, and 45 1. execution of decrees by Indian court. 2. execution of decrees in any court formed by the
Indian court outside India. 3. S.44-A - reciprocal enforcement of foreign decrees – Decrees of the superior courts of the United Kingdom and other foreign countries with which India has reciprocal arrangement. certified copy to be produced to the Indian court.
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Foreign decrees Such a certificate will be conclusive proof . Can be executed in District Courts only S.44 A-1
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Draft convention on the recognition and enforcement of foreign judgments in civil and commercial matters
Concluded 1 February 1971 Entered into force 20 August 1979
(1) the status or capacity of persons or questions of
family law, including personal or financial rights and obligations between parents and children or between spouses; (2) the existence or constitution of legal persons or the powers of their officers; (3) maintenance obligations, so far as not included in sub-paragraph (1) of this Article; KDR/IIT KGP/RGSOIPL-2010
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Exceptions (4) questions of succession; (5) questions of bankruptcy, compositions or
analogous proceedings, including decisions which may result therefrom and which relate to the validity of the acts of the debtor; (6) questions of social security; (7) questions relating to damage or injury in nuclear matters. This Convention does not apply to decisions for the payment of any customs duty, tax or penalty. KDR/IIT KGP/RGSOIPL-2010
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Application A.3 - This Convention shall apply irrespective of the
nationality of the parties. A decision rendered in one of the Contracting States shall be entitled to recognition and enforcement in another Contracting State under the terms of this Convention – (1) if the decision was given by a court considered to have jurisdiction within the meaning of this Convention, and (2) if it is no longer subject to ordinary forms of review in the State of origin. KDR/IIT KGP/RGSOIPL-2010
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A.5 Recognition refused in following cases: (1) if recognition or enforcement of the decision is
manifestly incompatible with the public policy of the State of enforcement. (2) if the decision was obtained by fraud in the procedural sense;
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Res-judicata (3) if proceedings between the same parties, based on
the same facts and having the same purpose – a) are pending before a court of the State addressed and those proceedings were the first to be instituted, or b) have resulted in a decision by a court of the State addressed, or c) have resulted in a decision by a court of another State which would be entitled to recognition and enforcement under the law of the State addressed. KDR/IIT KGP/RGSOIPL-2010
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A. 7 Recognition or enforcement may not be refused for the
sole reason that the court of the State of origin has applied a law other than that which would have been applicable according to the rules of private international law of the State addressed. Nevertheless, recognition or enforcement may be refused if, to reach its decision, the court of the State of origin had to decide a question relating either to the status or the capacity of a party or to his rights in other matters excluded from this Convention. KDR/IIT KGP/RGSOIPL-2010
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A.8 there shall be no review of the merits of the decision
rendered by the court of origin. Jurisdiction A.9- In questions relating to the jurisdiction of the court of the State of origin, the authority addressed shall be bound by the findings of fact on which that court based its jurisdiction, unless the decision was rendered by default.
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Jurisdiction – A.10 The court of the State of origin shall be considered to
have jurisdiction: (1) if the defendant had, at the time when the proceedings were instituted, his habitual residence in the State of origin, or, if the defendant is not a natural person, its seat, its place of incorporation or its principal place of business in that State; a commercial, industrial or other business establishment, or a branch office, and was cited there in proceedings arising from business transacted by such establishment or branch office; KDR/IIT KGP/RGSOIPL-2010
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Jurisdiction (3) if the action had as its object the determination of
an issue relating to immovable property situated in the State of origin; (4) in the case of injuries to the person or damage to tangible property, if the facts which occasioned the damage occurred in the territory of the State of origin, and if the author of the injury or damage was present in that territory at the time when those facts occurred;
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Jurisdiction (5) if, by a written agreement or by an oral agreement
confirmed in writing within a reasonable time, the parties agreed to submit to the jurisdiction of the court of origin disputes which have arisen or which may arise in respect of a specific legal relationship, unless the law of the State addressed would not permit such an agreement because of the subject-matter of the dispute;
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Recognition and enforcement The party seeking recognition or applying for
enforcement shall furnish – (1) a complete and authenticated copy of the decision; (2) if the decision was rendered by default, the originals or certified true copies of the documents required to establish that the summons was duly served on the defaulting party; (3) all documents required to establish that the decision fulfills the conditions of sub-paragraph (2) of the first paragraph of Article 4, and, where appropriate, of the second paragraph of Article 4; KDR/IIT KGP/RGSOIPL-2010
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Procedure (4) unless the authority addressed otherwise requires,
translations of the documents referred to above, certified as correct either by a diplomatic or consular agent or by a sworn translator or by any other person so authorized in either State.
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A.14. The procedure for the recognition or enforcement of
foreign judgments is governed by the law of the State addressed so far as this Convention does not provide otherwise.
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Resjudicata A.20 If two States have concluded a Supplementary Agreement
pursuant to Article 21, the judicial authorities of either State may dismiss an action brought before them or may stay such an action when other proceedings between the same parties, based on the same facts and having the same purpose, are pending in a court of another State and these proceedings may result in a decision which the authorities of the State in which the first mentioned action was brought would be bound to recognize under the terms of this Convention. KDR/IIT KGP/RGSOIPL-2010
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Ratification Article 27 This Convention shall be open for signature by the
States represented at the Tenth Session of the Hague Conference on Private International Law and Cyprus, Iceland and Malta. It shall be ratified and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands.
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India is a party Statute of the Hague Conference on Private International
Law [01] Convention of 5 October 1961 Abolishing the Requirement of Legalization for Foreign Public Documents [12] Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters [14] Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters [20] Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption [33] KDR/IIT KGP/RGSOIPL-2010
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Arbitration Arbitration proceedings are governed by the law of the
seat of the arbitration. Indian Arbitration Act 1899 – Bombay, Calcutta and Madras. Arbitration Act of 1940. 1961 – Foreign Awards (Recognition and Enforcement) Act 1961. New York Convention on the Enforcement of Foreign Arbitral Awards. KDR/IIT KGP/RGSOIPL-2010
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Legislations 1996 – Arbitration and Conciliation Act Based on the UNCITRAL Model Law on Arbitration
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Enforcement of foreign awards Part – II of Act. – New York Convention S.44 - "foreign award" means an arbitral award on
differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force hi India. S.46 – binding nature - Any foreign award which would be enforceable under this Chapter shall be treated as binding for all purposes on the persons as between whom it was made.
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Evidence S.47 - (a) the original award or a copy thereof, duly
authenticated in the manner required by the law of the country in which it was made; (b) the original agreement for arbitration or a duly certified thereof; and (c) such evidence as may he necessary to prove that the award is a foreign award.
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Non-enforcement (2) Enforcement of an arbitral award may also be
refused if the Court finds that – (a) the subject-matter of the difference is not capable of settlement by arbitration under the law of India; or (b) the enforcement of the award would be contrary to the public policy of India. Explanation.- Without prejudice to the generality of clause (b), it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption. KDR/IIT KGP/RGSOIPL-2010
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Family Law -Pvt. Int.na.Law Dr. Raju KD Assistant Professor Rajiv Gandhi School of Intellectual Property Law IIT Kharagpur
West Bengal
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Summary Marriage Matrimonial causes
Legitimacy and legitimation Adoption Guardianship and custody of minor children
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Marriage Concept of marriage Contract
Sacrament Hyde v. Hyde, (1866) LR 1 P&D 130 – marriage through
a contract is a contract sui generis. Held that a marriage was a voluntary union for life of one man with one woman to the exclusion of others. Polygamous marriage Harvey v. Farnie, 1880 – cannot be recognized. Ali v. Ali, 1966 KDR/IIT KGP/RGSOIPL-2010
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Hague Convention The Hague Convention on the Celebration and
Recognition of the Validity of Marriage 1978. India not adopted it. Celebration of marriages Christians – contract Roman Catholics church– sacrament Muslims – contract Hindus - sacrament Chinese Buddhist - contract KDR/IIT KGP/RGSOIPL-2010
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Validity English courts against polygamous marriages. Harvey v. Farnie, 1880. – AC recognised that
polygamous marriages could not be recognised. Validity is determined by lex celebrationis and characterization of monogamous or polygamous by lex fori. Lendrum v. Chakravarti, 1929 S.L.T 96 – marriage solemnized in Glasgow church between Hindu belonging to monogamous sect in India with a scot woman domiciled in Scotland was held valid. KDR/IIT KGP/RGSOIPL-2010
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Polygamy Ali v. Ali, (1966) 2 W.L.R 620. – personal law permits
polygamy – he cannot validly take a changes his domicile to England. Nachimson v. Nachimson, (1930) – among shia Muslims is governed celebrationis. The crucial question is which law monogamous or polygamous.
KDR/IIT KGP/RGSOIPL-2010
second wife if he Mutta marriages by the lex loci will decide it is
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Which law? Matrimonial domicile? A monogamous marriage at the inception cannot join a
polygamous sect . – Mehta v. Mehta (1945) 2 All E.R. 690. Sofia v. Shive Prasad, (1946) Cal. 484. – Indian hindu already married - married second wife in Paris – French law not recognised polygamy – came to India-wife filed a petition for nullity of marriage - marriage at the time not valid. Baindail v. baindail, Indian domiciled Hindu already having a wife in India, married an English girl. English girl filed an application for nullity – granted. KDR/IIT KGP/RGSOIPL-2010
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England Matrimonial Proceedings (Polygamous Marriages)
Act, 1972 – permits to give matrimonial relief to parties of marriage whose system allow polygamous marriages. Alhaji Mohammed v. Knott, (1968) 2 W.L.R 1446. Polygamous married persons would be recognized in English Law. entitled to maternity benefit and widow is entitled to benefits under the national insurance schemes. KDR/IIT KGP/RGSOIPL-2010
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S.494 IPC Whoever, having a husband or wife living, marries in
any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
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Hindu Hindu law Dayabhaga
Mitakshara Polygamy – Muslims Polyandry – Lahaul Valley bordering Tibet.
Some communities in South India. Hindu Marriage Act, 1955 Christian Marriage Act, 1872.
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Other systems Parsi Marriage and Divorce Act, 1936 prohibits
polygamous marriage after changing his domicile. Parsis - monogamous Special Marriage Act, 1954 – contract. Jews – monogamous – contract – Katuba
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Conversion Khambatta v. Khambatta, - Muslim married to Scot
women – 1905 in Scotland. Came to India and the wife embraced Islam. 1922 – husband pronounced divorced in India Wife Married under special marriage act, 1872. After 10 years – wife petitioned for nullity of marriage – Scottish marriage was not dissolved by any law. Second marriage is bigamous and void. Law after conversion – first marriage validly dissolved. KDR/IIT KGP/RGSOIPL-2010
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Conversion Nurjahan v. Tisanco, 45 CWN 1047. Two Russian Christians married in Berlin.
Lived together many years in Europe. 1938 wife came to India and the husband went to
Scotland. 1940 – wife converted to Islam. Thrice offered the husband to become Muslim. Refused the acceptance by husband. Wife initiated dissolution of marriage in Indian court. KDR/IIT KGP/RGSOIPL-2010
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Conversion Indian court held that parties were not domiciled in India – dismissed
the suit. No spouse can, on converting to another religion, impose his new religion on the other. Aiyasaabibi v. Subodh Chandra, (1945) 2 Cal. 405 – allowed wife’s petition. – law after conversion. Saeeda Khatun v. Ovedia, (1945) 49 CWN 754. Jews domiciled in India No matrimonial relief to a convert – spouse under new personal law. No law under which a marriage performed under one personal law can be dissolved under another personal law.
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Dissolution of marriage Both parties change their religion, then they will be
governed by new personal law Khambatta v. Khambatta, 1935 Bom. 5 One of the spouse changes religion – no matrimonial relief under new law S.13(1)(ii) – one of the spouses ceased to be Hindu by converting to another religion. Muslim - Apostasy – complete and immediate dissolution of marriage. KDR/IIT KGP/RGSOIPL-2010
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Special Marriage Act Conditions relating to solemnization of special marriages. - Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:-
(a) neither party has a spouse living; (b) neither party is an idiot or a lunatic; (c) the male has completed the age of twenty-one years and the female the age of eighteen years; (d) the parties are not within the degrees of prohibited relationship; and (e) where the marriage is solemnized outside the territories to which this Act extends, both parties are citizens of India domiciled in the said territories. KDR/IIT KGP/RGSOIPL-2010
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Foreign marriages Foreign Marriages Act, 1969 Facility for Indian national to marry abroad with
another Indian national or a national of another country. Or domiciled in another country. Monogamous Civil marriage Marriage is valid under lex loci celebrationis – S.17
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Validity of marriages Validity must be formal and material 1. capacity to marry
2. performed necessary ceremonies Problem of characterization: Which law will be applied for judging material
validity? Material validity Formal validity
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Material validity If the courts of two countries consider the validity of a
marriage at the same time. Odgen v. Odgen, (1908) – parental consent. French law – marriage not valid English Law – valid Functional test – what is the purpose of putting any requirement. To test whether the requirement is only a formality or integral part of public or social interest. KDR/IIT KGP/RGSOIPL-2010
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Validity Domicile of parties? Matrimonial home? England – under English law One of the parties is domiciled in England – English law Both parties are domiciled abroad – lex loci celebrationis. Apt v. Apt, (1947) – Argentinean domiciled in Germany
married a Jew resident in England through proxy. Not valid according to English law – lex loci celebrationis – valid.
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Materiality English law – no such differentiation between material
validity and formal validity. According to lex loci celebrationis. Material validity according to the law of the domicile of each party at the time of marriage. Pre-marriage domicile and lex loci celebrationis will determine the formal validity.
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English law Capacity to marry – domicile of each party Brook v. Brook, (1877) – prohibited degrees of
relationship – valid in Denmark – HL said the marriage is void because the parties lacked capacity to marry under ante-nuptial marriage. Sottomayor v. De Barros, 1877 – Portugal – prohibited degrees of relationship – valid in England - void.
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Consent of parties Essential validity H v. H, (1954) – Hungarian domiciled girl married her
cousin in Hungary who domiciled in France. Parties never lived together. Husband – France Wife – England English court for nullity of marriage Void for lack of consent. Lacked consent under pre-nuptial domicile. KDR/IIT KGP/RGSOIPL-2010
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Indian law Capacity is determined by personal laws. Lex loci celebrationis
Hindu Marriage Act – any two Hindus can perform
marriage. All communities – personal laws Foreign Marriage Act, 1969
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Formal validity Lex loci celebrationis Personal laws
Ceremonies according to local laws Special marriage act Civil marriage
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Thank you
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26
Matrimonial Reliefs in Pvt. Int.Law
Rajiv Gandhi School of Intellectual Property Law Indian Institute of Technology, Kharagpur
[email protected]
KDR/IIT KGP/RGSOIPL/-2010
1
Matrimonial Causes English law – 1857 – matrimonial causes – jurisdiction
– ecclesiastical courts. Divorce was unknown Jurisdiction extend to all Christians Church was not concerned with domicile or nationality of parties. Jurisdiction based on residence of parties.
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Matrimonial causes Act Matrimonial Causes Act, 1857 Indissolubility of marriage was repudiated.
Jurisdiction shifted to civil courts. Matrimonial Causes Act, 1973 Matrimonial Proceedings Act,1973
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Indian law Indian Divorce Act, 1869.
Parsi Marriage and Divorce Act, 1865. Parsi Marriage and Divorce Act, 1936. Special Marriage Act, 1872, 1923, 1954
The Hindu Marriage Act, 1955 Dissolution of Muslim Marriage Act, 1939.
Foreign Marriage Act, 1969.
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Jurisdiction English Law Domicile or habitual residence
Abolishes wife’s dependent domicile Domiciled in England at the time of proceedings–
Indyka v. Indyka, (1969) 1 AC 33. Habitually resident in England for 1 year. Substantial link between his residence and country.
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Validity De Barros v. De Barros (No 1), (1877) 3 PD 1. The law of the country where the marriage is
solemnized. Personal capacity to marry according to domicile Valid in accordance with the country where the marriage took place.
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Lex loci celebrationis Marriage where it is performed Where the poxy was appointed
Man domiciled in Ireland – woman domiciled in
Ghana – married according to the tribe ceremonies in Ghana – both parties in England – English court held: consent of parties needed according to the lex loci celebrationis.
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Foreign marriages Ogden v. Ogden, [1908] p46 (CA) Woman domiciled in England
Married a French man in England Annulled the marriage in France for want of parental
consent. Husband married another woman Petition for dissolution in English Court. English woman married another man Second marriage of English woman annulled on the ground of bigamy. KDR/IIT KGP/RGSOIPL/-2010
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India Domicile of origin or nationality is not relevant
for jurisdiction. Last resided together Domiciled in India at the time of filing the petition. Nullity of marriage - Only if the marriage was solemnized in India. Restitution or judicial separation – the petitioner must be resident of India at the time of presentation of petition. KDR/IIT KGP/RGSOIPL/-2010
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India Main basis is residence It is also not necessary that they should be Indian
nationals. Lex loci celebrationis Noor Jehan Begum v. Eugene Tiscenko, AIR 1941 Cal 582. Foreign Marriage Act 1969, S.23 – lex loci celebrationis.
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Foreign Marriage Act 1969 Marriage between two persons outside India - one
Indian citizen . If its prohibited by law of the country where it is performed or it is inconsistent with international law or the comity of nations. The matrimonial proceedings in India should be according to the Special Marriage Act 1954.
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Foreign marriage- relief Cannot be granted: Parties not domiciled in India before marriage
Domiciled in India when the wife presented the
petition Ordinarily residing in India for the last 3 years before the petition was presented.
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Hindu Where the marriage was solemnized Parties last resided together
Respondent at the time of presentation of petition
resides The petitioner is residing at the time of presentation of petition.
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Special marriage Act S.31.2 the District Court may, by virtue of this sub-section,
entertain a petition by a wife domiciled in the territories to which this Act extends for nullity of marriage or for divorce if she is resident in the said territories and has been ordinarily resident , therein for a period of three years immediately preceding the presentation of the petition and the husband is not resident in the said territories. Husband and wife are in two countries KDR/IIT KGP/RGSOIPL/-2010
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Temporary living Suit can be filed in a court within whose jurisdiction the
defendant resides at the time of filing of the suit – Muslims. Jagir Kaur v. Jaswant Singh, - residence includes both permanent dwelling and temporary living at a place, but it does not include ‘ a casual stay in or a flying visit to a particular place. Murphy v. Murphy, 1921 Bom 211. Tara v. Jaspal Singh, (1946) 1 Cal. 604. – stayed in Darjeeling for a week. Clarance v. Raicheal, 1964 Mys. 67. KDR/IIT KGP/RGSOIPL/-2010
15
Choice of law Once decided the jurisdiction – personal law of the
parties. Lex fori Special marriage Act will apply in case if some foreign element is involved. Christopher Neelkantam v. Annie Neelkantam, 1959 Raj. 133.
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Foreign marriages Act 1969 S.18 – provisions of Special Marriage Act, 1954. S.23 – lex loci celebrationis.
Perumal Nadar v. Ponnuswami, AIR 1971 SC 2352 Capacity to marry depend on law of a person’s
domicile. Bhagwan Ghamshamdas v. Charlotte Zingg (1959) ILR 1 Cal 4. Indian married a Srilankan, within 1 year of dissolution of marriage in violation of S15 then. KDR/IIT KGP/RGSOIPL/-2010
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Recognition of foreign divorce English Law- Recognition of Divorces and Legal
Separations Act, 1971. Joao Gloria Pires v. Ana Joaquina Pires, 1967 Goa 113. Marriage in Goa – husband got divorce decree from Ugandan Court – Whether the decree can be implemented in Goan court. Opposed to public policy?
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cases Teja Singh v. Satya, 1970. Divorce decree pronounced by court of domicile will
be accorded recognition universally and should be recognised in India. Husband was not domiciled in Nevada. Hogan Bhai v. Hariben, 1985 Guj 187. Not recognized.
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Law commission –
th 65
report
Recognition of decrees granted in the
country of domicile of the parties should continue. The country of domicile recognises the decree, India will recognize. Will not recognize if other party don’t have notice of proceedings. No opportunity of hearing. Contrary to public policy. Obtained by fraud. KDR/IIT KGP/RGSOIPL/-2010
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Nullity of marriage Void and voidable Age rule
Voidable – valid marriage Void – no legal consequences flow from it Destructive impediment.
Validity of marriage – legitimacy of children.
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Nullity Can be granted if the marriage solomnised in India The petitioner was resident in India when the petition
was presented Restitution – petitioner in in India at the time of filing the petition
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Void marriages Impotency Lunatic or idiot
Prohibited degrees of relationship Former husband or wife living – marriage in force Muslims – lack of proper ceremonies
Marrying sisters – neither void nor valid –irregular.
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Voidable marriages Marriage not consummated Pregnant at the time of marriage
Coercion or fraud Incapable of giving valid consent Recurrent attack of insanity or epilepsy
Domicile as well as residence were considered as the
basis of jurisdiction.
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Validity of marriage Ecclesiastical courts applied the law of
celebrations. De Renevile v. De Reneville, (1948) p. 100 Domiciled French man with woman domiciled in England Court held: if she is domiciled in England. It will depend on the question whether the marriage was void or voidable. Void – court have jurisdiction Voidable – no jurisdiction. KDR/IIT KGP/RGSOIPL/-2010
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India Formal validity of marriage will be determined by
lex loci celebrationis. Material validity by personal law of parties. There is no case in India on the recognition of foreign nullity decrees. Recognition of Divorces and Legal Separations Act, 1971. 13 of CPC. Satya v. Teja Singh
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Polygamous marriages The Matrimonial Proceedings (Polygamous
Marriages) Act, 1972. Declaration of marriage valid or void Legitimacy of children Nullity of marriage Judicial separation Maintenance
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Custody Kuldeep Sidhu v. Charan Singh, AIR 1989 (P&H)
103. Indians married in India but settled in Canada Father came to India with two children Mother came to India with an order of custody of children from a Canadian Court. Indian court allowed custody.
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28
Thank you
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Adoption, custody and guardianship Dr. Raju KD Assistant Professor Rajiv Gandhi School of Intellectual Property Law IIT Kharagpur
West Bengal
KDR/IIT KGP/RGSOIPL-2008
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Adoption "Adoption" means the process through which the
adopted child is permanently separated from his biological parents and become the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship (Juvenile Justice Act, 2000 amended in 2006) Guardians and Wards Act, 1860 Children’s Act, 1960 Juvenile Justice Act, 1986 KDR/IIT KGP/RGSOIPL-2008
2
Adoption Hindu Adoption and Maintenance Act, 1956 – Hindu
male or female has the capacity to make an adoption, major and of sound mind. Marred male can adopt only with consent of wife. married woman cannot adopt even with the consent of husband. It is the right of the husband to exercise the right of adoption. Married woman can adopt a child if the other spouse ceased to be a Hindu. KDR/IIT KGP/RGSOIPL-2008
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Female S. 8 - Capacity of a female Hindu to take in
adoption.- Any female Hindu (a) who is sound mind, (b) who is not a minor, and (c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. Has the capacity to take a son or daughter in adoption. KDR/IIT KGP/RGSOIPL-2008
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Adoption ``There cannot be a valid adoption (under the Hindu
Adoption and Maintenance Act 1956) unless the adopted child is transferred from one family to another.
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Indian law Only Hindu law recognised adoption. Adopter as well as child should be Hindu.
The Act does not lay down any requirement of
residence, domicile or nationality. Nobody can adopt without the permission of the court. Jurisdiction – child ordinarily resides (s.9) Re Sister Gemma, 1970 Mad. 263 – court held that French lady can adopt a destitute child – welfare of the child is most important. KDR/IIT KGP/RGSOIPL-2008
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Personal law No statute dealing with other than Hindus on
adoption. Adoption is not known to Mahomedan law. If a custom permits adopts in a particular area, it is recognised. (j&K).
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Christians There is no specific statute enabling or regulating
adoption among Christians in India. In the past persons who wished to adopt a minor child usually approached the Court under the provisions of the Guardians and Wards Act of 1890 and an order of guardianship in respect of the minor child is obtained. Customary law was reconised by courts. Sohan Lal V. A.Z. Makuin (AIR 1929 Lahore 230)
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Christians Philip Alfred Malvin V. Gonsalvis, (see 1999 (1) KLT
292 = AIR 1999 Ker. 187) wherein a Single Bench of the High Court of Kerala held that it is an admitted fact that Christian Law does not prohibit adoption. Maxin George v. Indian Oil Corporation Ltd [2005 (3) K.L.T 57]. – foster son is not adopted son unless the formalities of adoption takes place.
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Foreign adoptions Rights of Child Resolution adopted by the United
Nations General Assembly on November 20, 1959 and Guidelines formulated by Expert group and adopted by the Economic and Social Council of the United Nations its 20th session and also through adoption of Children Bill, 1980 relating to Inter-Country adoption legislation. Under the Adoption of Children Bill, 1980 giving in and taking in child for adoption was made unlawful. Clauses 23 and 24 of the said bill were most relevant in this respect. KDR/IIT KGP/RGSOIPL-2008
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Recognition of foreign adoptions English practice is that it will recognize the adoption if
the adopter and the child is from the same country which recognised the adoption. Personal status is determined by lex domicilii. Re Valentine’s Settlement, (1965) Ch. 831 (C.A). South Rhodesian adopted a girl child and a boy domiciled in south Africa. Adoption not valid in Rhodesia. The court held that the adoption must be recognized in adopter’s country. KDR/IIT KGP/RGSOIPL-2008
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India The law is yet to develop C.S. Natraja v. C.S. Subbaraya, (1949) 54 PC.
PC held that widow had no capacity to adopt at that
point of time according to Madras law. PC held that the matter of adoption to be determined according to the law of domicile of both child and adopter. They were in Pondicherry – according to French Law. Adoption valid according to lex domicilii. KDR/IIT KGP/RGSOIPL-2008
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1995 guidelines - 2006 Lakshmikant Pandey v. Union of India, 1984, 1986 and 1987 – SC
formulated guidelines for inter-country adoption. Laxmikant Pandey Vs. Union of India [AIR1984 SC469]. para 8 of the judgment that, " while supporting Inter-Country adoption, it is necessary to bear in mind that the primary object of giving the child in adoption being the welfare of the people, great care has to be exercised in permitting the child to be given in adoption to foreign parents, lest the child may be neglected or abandoned by the adoptive parents in the foreign country or the adoptive parents may not be able provide to the child a life of moral and material security or the child may be subjected to moral and sexual abuse or forced labour or experimentation for medical or other research and may be placed in worse situation than that in his own country .” KDR/IIT KGP/RGSOIPL-2008
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SC on adoption " if a child is to be given in Inter-Country adoption, it
would be desirable that it is given in such adoption before it completes the age of 3 years.“ The Bombay High Court in Re Jay Kevin Salerno [AIR1988 BOM139] iterated that " where the custody of a child is with an institution, the child is kept in a private nursing home or with a private party for better individual care of the child, it does not mean that the institution ceases to have the custody of the child."
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1995 Guidelines The object of the guideline is to implement the
judgments in L.K. Pandey vs. Union of India and Others between 1984 and 1991 and various other court orders from time to time and to take all other measures necessary for the promotion of in-country adoption of children as well as welfare of children in general.
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Guidelines The goal is to find a family for as many orphan
children as possible and to safeguard their interests as visualized in the UN Convention on Child Rights and Hague Convention on Inter-country Adoption (both ratified by India). Ministry of Social Justice & Empowerment – Ministry The Central Adoption Resource Authority (hereinafter called CARA) functions as a nodal body and the Central Authority for adoption matters.
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Procedure The Supreme Court of India has laid down that every
application from a foreigner/NRI/PIO (as applicable) desiring to adopt a child must be sponsored by a social or child welfare agency recognised or licensed by the Government or a Department of the Foreign Govt. to sponsor such cases in the country in which the foreigner is resident.
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Criteria for Foreign Prospective Adoptive Parents (FPAP) Married couple with 5 years of a stable relationship, age, financial and
health status with reasonable income to support the child should be evident in the Home Study Report. Prospective adoptive parents having composite age of 90 years or less can adopt infants and young children. These provisions may be suitably relaxed in exceptional cases, such as older children and children with special needs, for reasons clearly stated in the Home Study Report. However, in no case should the age of any one of the prospective adoptive parents exceed 55 years. Single persons (never married, widowed, divorced) up to 45 years can also adopt.
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Criteria for FPAP Age difference of the single adoptive parent and child
should be 21 years or more. A FPAP in no case should be less than 30 years and more than 55 years. A second adoption from India will be considered only when the legal adoption of the first child is completed. Same sex couples are not eligible to adopt
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Procedure The applicants will have to contact or register with an
Enlisted Foreign Adoption Agency (EFAA)/ in their country. Home study report (HSR). Adoption application dossier On receipt of the documents, Recognised Indian Placement Agency (RIPA) will make efforts to match a child who is legally free for inter-country adoption with the applicant. KDR/IIT KGP/RGSOIPL-2008
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Procedure If a child is declared as free for inter country adoption
– clearance from ACA is required. Non objection certificate from CARA. Filing of petition in court - RIPA shall file a petition for adoption/guardianship in the competent court (district court). RIPA – has to apply for passport and visa.
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Hague convention CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT
OF INTERCOUNTRY ADOPTION – 1993 – in force – 1995. A. 14 - Persons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State, shall apply to the Central Authority in the State of their habitual residence. KDR/IIT KGP/RGSOIPL-2008
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Recognition A.23 - An adoption certified by the competent
authority of the State of the adoption as having been made in accordance with the Convention shall be recognized by operation of law in the other Contracting States. Article 24 The recognition of an adoption may be refused in a Contracting State only if the adoption is manifestly contrary to its public policy, taking into account the best interests of the child. KDR/IIT KGP/RGSOIPL-2008
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Hague provisions Adoption will takes place only after the competent
authorities of the ‘state of origin’ have determined that the child is adoptable. Consent of the parents, if the child is mature enough, to be consulted. Competent authorities of the receiving state to give consent. Adoption will take place only before the age of 18. It should not be contrary to public policy or at the interest of the child. KDR/IIT KGP/RGSOIPL-2008
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Recognition Adoption includes recognition of the legal parent-
child relationship. Parental responsibility Termination of the pre-existing legal relationship between child, mother and father.
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Child Indian Law – natural person below the age of eighteen
years is known as minor – Indian Majority Act, 1875. Guardianship and custody together – A foreign patent desiring to exercise his parental control over the child in India can do so only in accordance with Indian law. If an English parent domiciled outside can exercise the guardianship and custody of children in England under English law. KDR/IIT KGP/RGSOIPL-2008
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Jurisdiction Basis:
Nationality is the basis of family law matters. Clause 37 of the Charter of the SC at Bombay and Clause 25 of the Charter of the SC at Calcutta authorized the court to appoint guardians. Courts where the ordinary residence of children have jurisdiction. Lalita v. Paramatma Prasad, 1940. Chimallal v. Rajaram, 1937 Bom.
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Jurisdiction Surinder Kaur /sandhu v. Harbux Singh Sandhu, 1984
SC 1224. Welfare of children is of paramount importance. The state which was intimate contact with the issues have the jurisdiction. The mere presence of the child in India would not give jurisdiction of Indian court. English courts apply the English domestic law rather than apply the law of domicile or nationality. India apply Guardians and Wards Act, 1890. KDR/IIT KGP/RGSOIPL-2008
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Recognition of foreign Orders English courts taken the view that if the child is in
England the interest of child is important and even the court can change the foreign orders according to circumstances. Staurt v. Bute, (1861) 9 HLC 440. English courts will scrutinize the foreign guardianship orders strictly. In Re H, 1966 English court given custody of child to Father in New York. KDR/IIT KGP/RGSOIPL-2008
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India Margrett v. Chakoo, 1970 Ker. 1. Indian married German lady and later on he flew back
to India with two children. Kerala High Court recognized the order of German court and given custody of the children to the German mother. Elizabeth Dinshow v. Arvind, ILR (1984) SC also taken the same view.
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Guardianship application by foreign Nationals to be appointed as Guardian of Indian Children the Karnatak High
Court held that the Court is bound to exercise the jurisdiction in favour of the child once it is satisfied that the order. it is likely to make. is for the welfare of the child. Society of Sisters of Charity St. Gerosa Convent and others vs, Karnataka State Council for child Welfare A.I.R. 1992 Kant 263 Para19-20.
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Personal laws: Guardianship Hindu Minority and Guardianship Act, 1956 Guardians and Wards Act, 1890
Father is the natural guardian of Hindu child. If father is not taking care of the child – mother Customary mohammadan law applied in India.
Minor boy – up to 7 – mother Girl – up to the age of puberty
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Foreign orders Usually Indian courts will give effect to foreign orders
if it is not prejudicially affect the interest of the child.
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Thank you
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Dr. KD Raju Rajiv Gandhi School of Intellectual Property Law Indian Institute of Technology, Kharagpur
[email protected]
Property Movables – lex domicilii Immovable – lex situs
Movables – tangibles and intangibles Movables – choses in possession & choses in action. choses in possession – car, horse, tv etc.
choses in action – stock and shares, patents, right to
recover a debt…..
Movable or immovable According to the law of the place where the property
is. If there is a conflict between the lex fori and lex situs on whether th property is movable immovable, lex situs will determine. Re Berchtold, (1923) 1 Ch.192. Freehold interest in England was declared as immovable property. Hungarial law – movable property
Movable or immovable Re Cutliffe,(1940) Ch. 565. Stock of a British Company.
Dex domicilii – ontario Lex situs – England Stock was characterized as immovable
property according to lex situs.
Movable v. Immovable Exhibition building – US and Germany considered as
interest in movable property. English law consider it as an interest in land. Tangible and intangible things
India General Clauses Act,1897 – S.3(26) - "Immovable
property" shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth. S.3(36) "Movable property" shall mean property of every description, except immovable property. S.3 (TP Act) : " immovable property" does not include standing timber, growing crops or grass;
India Nachiyappa Chettiyar v. Muthu Karuppan Chettiyar,
1946. Capacity to alienate immovable property is to be determined by applying the law of the place where the property is situated. Indian courts don’t have jurisdiction over immovable property situated outside india, but an action in personam against the defendant within the jurisdiction on contractual right is possible.
Immovable property India, England, US and most of the European
countries – law of the situs. Italy, spain, Sweden, Finland and Germany – nationality. Convenience and expediency Nelson v. Bridport, (1845) 8 547 “the incidence of real estate, the right of alienating or limiting it, and the course of succession to it, depends entirely on the law of the country where the estate is situated.”
Lex situs Entire law of the country? Only private international law
Indian dies leaving behind immovables in
Spain. Under internal law of Spain A is the heir. Under Hindu law B is the heir. Spanish court will apply the law of nationality, i.e – Hindu law – B is the heir. Indian court – lex situs – law of Spain – A is the heir. Such situation Renvoi applies.
Jurisdiction British
south Africa Co. v. Companhia de Mocambique, 1893. Action of trespass was brought against the defendants in English court on land and mines in South Africa. English court has no jurisdiction to entertain an action on immovable properties in foreign land. Neelkant v. Vidya, 1930 AC 188. British Indian courts don’t have jurisdiction to entertain an action in respect of a mortgage of immovable property situated in foreign court.
Capacity Governed by the lex situs. – Bank of Africa Ltd.
v. Cohen, (1909) 2 Ch. 129. Any restriction on foreigners – conveyance in foreign country is not valid. US – age – 21 India – age – 18 Indian domiciled in US cannot convey any property in US at 18 – invalid.
Contracts If two Indians enter into a contract in India for
conveyance of a house in London. Formaly valid if it is in accordance with – lex loci contractus. Contractual rights can be determined in the place of courts of proper law of contract for breach of contract.
Exceptions to lex situs The court of equity have exercised the jurisdiction of
ordering specific performance of contracts relating to foreign land whenever the defendant has been present within the jurisdiction. Archer v. Preston. Visit to England he was asked to specific perform the contract – land in Ireland. The British court of equity always act in personam. Fraud Fiduciary relation – land situated outside – trust – trustee is within the jurisdiction of the court.
India Proviso to - S. 16 of CPC Provided that a suit to obtain relief respecting, or
compensation for wrong to, immovable property held by or on behalf of the defendant, may where the relief sought can be entirely obtained through his personal obedience be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.
India Mahadev v. Ramchandra, 1922 Bom. Even if the land is situated outside India, if the relief
can be obtained in Indian through the personal obedience of the defendant, court have jurisdiction. The court will not pass a decree if it cannot be effectively enforced in India by personal obedience.
Assignment of tangible movables Transfer inter vivos – sale, gift, pledge etc. Lex domicilii – oldest theory
Situs can be shifted any time. – abandoned. Sale of a ship in voyage Domicile of the assignor or Lex actus (actual situs) of
the assignment.
Lex situs Most favoured theory In Re Anzinani, (1930) 1 Ch. 407 The law of the country were the movable is situate. Supporters – Savigny, Westlake, Dicey, Foote, Schminthoff and Wolf. Pledges or lien – lex situs Theory breaks down only when the goods are in transit.
Proper law theory lex actus – transfer of movables – transfer has the
most real connection. Apply to goods in transit.
Transfer Contractual questions – proper law of contract. Proprietary questions – if there is a dispute between parties
as to the title of the property, which law should govern the matter? Inglish v. Usherwood, (1801) English merchant purchased goods from Russia and shipped to England – goods in transit – Merchant became bankrupt – Russian asked the Captain of the ship to return the goods – valid according to Russian law – goods will be passed to the consignee when the goods passed to the merchant – not in accordance with English law. English court held that Russian law should be applied.
Gifts Which law applies to gifts? Lex situs – proper law Cheshire – proper law theory Morris – lex situs Donations Mortis causa – S.191 of the Indian
Succession Act, 1925. English law – lex situs In Re Korvine’s Trusts, (1921) 1 Ch.343. – domiciled in soviet Union, resident in England made gift of his movables in England. – gift was void according to lex domicilii – English court applied lex situs.
Commercial transactions Lex situs is practically not applicable. Shifting situs
Lex domicilii has been rejected in commercial
transactions. Law of the locus where the ship is to unload. Ship in High Seas or aircraft – law of the flag.
Thank you
KDR/IIT KGP/RGSOIPL/-2008
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Dr. KD Raju Rajiv Gandhi School of Intellectual Property Law Indian Institute of Technology, Kharagpur
[email protected]
Law of Succession Civil law countries – law of nationality at the time of
death. India – personal laws Succession to immovables – lex situs – Sankaran Govindan v. Lakshmi Bharati, AIR 1974 SC 1764. Succession Movables – lex domicilli – Umyal Achi v. Lakshmi Achi AIR 1945 FC 25. If a person leaving behind immovable property in England – internal law
Indian succession Act, 1925 S.5 - Succession to the immovable property in India of
a person deceased shall be regulated by the law of India, wherever such person may have had his domicile at the time of his death. (2) Succession to the movable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death.
Administrators Functions under English law: 1. collection of assets
of the deceased. 2. payment of debts 3. distribution of residue among the heirs.
Civil law v. common law Civil law countries – will is considered as a public
document. Common law countries – as a secret. Administration and succession are two different things in English law. English law – no one can distribute the property without the authorization of the court. - probate of the will Obtaining letters of administration is mandatory.
will In testamentary successions, the court will uphold
wishes of the testator as far as possible. Deceased made a will and appointed an executor – executor may obtain the probate of the will. Deceased made a will and not appointed an executor – court may appoint an executor. When the deceased had died intestate, then the court may grant letters of administration.
Presence of the property English courts usually exercise jurisdiction in granting
administration if the property is in England. Choice of law: In the Goods of Hill, (1870) 2 P&D. 89 ‘court of the country of the domicile of the deceased makes a grant to a party who then comes to England and satisfies the court about his authorization to administer the property.
Administration Administration of the estate of the deceased person is
governed by lex fori. Administrator is liable to account. Make payment of debts.
Indian law Indian Succession Act, 1925 Indian law follows English law
S.270 - basis of jurisdiction – 1. at the time of death
the deceased had a fixed pace of abode. 2. If movable or immovable property of the deceased is within the jurisdiction of the district judge.
Indian law Indian courts have taken the view that a grant of probate
can be made of a will executed abroad by a person who is neither domiciled here nor a national of India, if the testator left some immovable or movable property in India. Katyankutty Padaji v. Gaurikutty, 1953 TC 352. Indian courts didn’t have jurisdiction to appoint an administrator on the basis that the deceased was domiciled in India.
Personal laws Probate is only compulsory to Christians. S.218 lays down that if heirs do not apply for administration
of the property the creditor of the deceased can apply for administration of the estate. Domicile or nationality of the deceased is immaterial. The heir will be decided according to whether the deceased is a Hindu or a Muslim.
Indian succession Act 218(a) - If the deceased has left a widow,
administration shall be granted to the widow. If the widow is a lunatic or committed adultery or remarried – not eligible. The husband surviving his wife has the same right of administration of her estate as the widow has in respect of the estate of her husband.
domicile Where the deceased has left property in India, letters of administration shall be granted according to
the foregoing rules, notwithstanding that he had his domicile in a country in which the law relating to testate and intestate succession differs from the law of India.
Indian law If the property is in India – lex fori S.222 – a probate shall be granted to an executor
appointed by the will. If will is probated outside India and the property is in India, Indian court will give administration of the property to the foreign administrator or his representative in India.
Intangible property Trademark – succession to intangible property created
by a stature is to be governed by the law of the country where it was created. Blackwood & Sons v. AN Parasuram, AIR 1959 Mad 410.
Immovable property Succession to immovable property is by lex situs of
immovable property. Vishvanathan v. syed Abdul Wazid, 1963 SC 1.
will Personal laws apply to different communities. Testamentary succession – succession Act applies to all
communities except Muslims. 5 (2) Succession to the moveable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death. Application of this provision has excluded if the deceased is a Hindu, Mohammadan, Buddhist, Sikh or Jain.
Pvt.intn.law Indian succession Act provisions won’t affect the pvt.
Int.n.law principles. If a foreign court determines succession of an Indian who leaving behind immovable's in India and the foreign court applies any law other than his personal law, Indian courts will not recognize the foreign decree.
The Hague Convention 1989 The Hague Convention on La Applicable to the Succession to the
Estates of Deceased Persons 1989. Applies to the succession of the estates of deceased persons except testamentary and matrimonial property rights. Succession is governed by the law of the country where the deceased habitually resides for the last 5 years. More connected with the place – nationality.
Hague convention 1989 A person can designate any system of law applicable to
the succession of his estate. The law means not the conflict of law. A state may only refuse to apply the applicable law under the Convention if the applicable rules are manifestly contrary to public policy. Only Netherlands implemented this Convention.
Hague Convention 1961 The Hague Convention on the Conflict of Laws
Relating to the Form of Testamentary Dispositions 1961. India not implemented Testamentary disposition is to be regarded as valid if it complies with the internal law. Public policy – non implementation
UNIDROIT convention 1973 UNIDROIT International Convention Providing a Uniform
Law on the Form of an International Will 1973. Objective is to the international validity of a will. UK implemented this convention by enacting the Justice Act 1982. India has not implemented this convention
Will convention A single person to designate to deal with all
international wills. The will has to be in writing It will be valid wherever it is made, assets located, nationality, domicile or residence of the testator. A will signed in presence of signatories will be valid in all contracting states.
Thank you
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PVT Int. Law
Tort in private international law The traditional approach starts with lex loci and
considers the site of conduct. Lex loci Commissi Theory – civil liability arising out of a wrong derives its birth from the law of the place. – Philips v. Eire, (1870) L.R. 4 Q.B. 225. Obligatio theory –Holmes . J.
Theories Lex loci delicti commissi governs,
Indian standing in the border pushes a rock which rolls down and dashes against the car parked in the Pakistan side.
Cheshire - tort occurred in both countries Civil law countries -Where the tort has been committed.
3possible solutions
1. there should be of the place where the act commenced . – Holmes. J. 2. the tort may be deemed to be complete
in the country where the law is most favourble to the plaintiff. - Cook 3. tort is completed in the country where the harm ensues. - Beale In the case of defamation the harm is in the nature of non-physical. Lex loci commissi Damage in more than one country.
Bata v. Bata, (1948) W.N. 366.
Defamatory letters ere written by the defendant in Zurich. Posted in London and harm to reputation.
CL – held that the tort of libel was completed in London. It is not necessary that the cause of action fully occurred within the jurisdiction – P.C in Distillers Co. (Bio-chemicals) Ltd. v.
Thompson,(1971) 1 All E.R. 694. Tort
Morris – proper law – most significant connection which the chain of acts. US proper law theory has been accepted – Babcock v. Jackson (1963) 12 NY. England – Boys v. Chaplin, (1968) 2 QB 1.
Proper law or Social enviro nment theory
Action in personam – action on tort is act in personam – mere presence of the defendant within its jurisdiction is sufficient. When the tort is complete it is actionable
in England.
Locus delicti – even if the damage was occurred in another place. Phillips v. Eire, (1870) LR 6 QB 1. Tow conditions: 1. the wrong must be of such a character that it would have been
actionable if committed in England. 2. The act must not have been justifiable by the law of the place where it was done. Choice of The wrong complained of must be wrong law not only under the lex loci delicti commissi but also under the lex fori.
Locus delicti First rule – the wrong alleged would have been
actionable in England when it is committed. Monroe (George) Ltd. v. American Cynamid and Chemical Corporation, (1944) 1 KB 432. Medicine manufactured in US. Act or omission happened where? – South Wales No warning with regard to the use of expectant mother in the first three months of pregnancy. Cause of action takes where the mother purchased the drug.
Second rule Not justifiable according to the lex loci delicti. Philips v. Eire Machado v. Fontes Machado sued fontes in English court for a libel published
in Brazil. Brazilian law – not actionable in civil law but actionable in criminal proceedings. Main defence was that the publication was not actionable in Brazil. Two conditions are satisfied and actionable in England.
Boys v. Chaplin Both of them were Her Majesty’s Armed Forces were
stationed in Malta. Plaintiff suffered injury due to road accident on account of the negligence of the defendant. Both of them returned to England and the plaintiff sued the defendant. The act was actionable under English as well as Maltese law. No compensation for pain and sufferings under Maltese law.
Double actionability rule A wrongful act committed out of England is actionable
in England only if it is actionable in lex loci delicti commissi and hold that Mechado v. Fontes was wrongly decided.
Maritime and aerial torts Tots committed in High Seas. E.g: assault by a member of the crew on another or on
a passenger or torts committed by a passenger . Governed by the flag of the ship. If the tort is committed in an Indian ship, Indian law will apply. But if the action for tort is initiated in England, The rule in Boys v. Chaplin would apply. Action for negligence outside the ship will be dealt by the maritime law of England.
Aerial torts On board on aircraft. No law dealing with aerial torts.
Law of the country where the aircraft is registered Locus delicti If the aircraft is above the High Seas, the general
maritime law will be applied or English law will be applied. Warsaw Convention Chicago Convention
India CPC – ‘where the wrong was done’ Within the jurisdiction of the court were the
defendant resides or carries on business. Cause of action arise. Wrongful act has taken place or where its effect are experienced.
Restitution To prevent unjust enrichment. Contract that has failed.
Whenever there are fiduciary duties of which a breach
has been committed. Restitution is ordered by a court whenever a person has derived an unjustified advantage which it is his duty to restore. Indian Contract Act 1872, SS. 64 and 65.
Restitution There is no statutory provisions with regard to
restitutionary claims arising outside India. There is no provision on limitation as to foreign claims. England law applied is proper law of the obligation. If it is related with a contract - applying ‘proper law of contract.’ If an obligation arising in connection with a transaction relating to immovable property is usually determined by lex citus.
Restitution In other cases – determination by applying the law of
the place where the enrichment occurs. The present practice in England is that the law applied where the obligation have the closest and most real connection. Baring Bips & Co Ltd v. Cunningham District Council (1997) CLC 108. UK – proper law of the contract In the case of Insurance – law of insurance.
India Indian Contract Act, 1872 – if a person avoids a
voidable contract, he must restore any benefit he has received under the contract he has avoided or compensate the other party. Void – return of all advantages.
Trusts England – Recognition of Trusts Act Passed in 1987 to
give effects to the Hague Conference on Private International Law Applicable to Trusts and n their Recognition, 1986. Hague Convention Trust created inter-vivos Trusts for specified purposes charitable trusts Created by judicial decisions
Trusts Oral trusts and trusts created by statutes are outside
the purview of the convention. Choice of law – by the settler. Substantive law – not conflict of laws If the country where there is no law of trust – governed according to the law applicable in the absence of choice. Not opposed to public policy.
Absence of express provision A.7 - Where no applicable law has been chosen, a trust
shall be governed by the law with which it is most closely connected. In ascertaining the law with which a trust is most closely connected reference shall be made in particular to – a) the place of administration of the trust designated by the settlor; b) the situs of the assets of the trust; c) the place of residence or business of the trustee; d) the objects of the trust and the places where they are to be fulfilled.
Choice of law Proper law of contract – most real connection. – Arab
Monetary Fund v. Hashim [1996]. Place of residence Place of business Where the enrichment occurred Where the obligation arises Place where the property situate – lex citus
Thank you
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