History and Evolution of Private International Law- (Including India)..

1. Introduction:Private international law is that part of the law of any State which comes into operation when a court is called upon to determine a suit containing a foreign element. Such a foreign element may exist, for instance, because a contract has been made or is to be performed in another State or because the recognition of a divorce obtained by persons domiciled abroad may arise. „Because the courts of the other State may also be asked to exercise jurisdiction in the suit, or because the laws of that other State may be different to those of Ireland, in determining the proceedings before it, an Irish court may be confronted with a conflict of laws1.‟ Such conflicts are resolved by applying the rules of private international law. To varying degrees „the rules of private international law which have been developed in Ireland will be different to those developed in other States and indeed there are probably as many systems of private international law rules as there are States and therefore national legal systems‟2. First of all, I would stress that we all know that Roman Law – Greek and Roman political and legal genius – has been the very foundation and framework of European legal development. Both Greece and Rome had developed domestic and international commercial activities, supported by equally developed and sophisticated laws and rules in all or in most public and civil law matters. They, of course, covered also relationships and cases with foreign elements. The question may be asked: Do we see in that distant legal world a milestone of what we are talking about? A milestone around which legal thinking generated comparative substantive or conflict of laws ideas and rules to serve the respective needs of Greek and Roman antiquity? The answer is “yes” and “no”? The “yes” answer is very strong. Both Greece and Rome developed and constantly improved domestic substantive law instruments and forensic practice. These laws and practice were applied also with respect to cases with a foreign element. The “Jus peregrini” also was substantive Roman law. These propositions are well evidenced by the works of, e.g., Aristotle and Plato, and the vast body of laws and regulations represented by the Roman “Corpus IurisCivilis.” As to the substantive law structures, the mutual learning and influencing process – as a result, the harmonizing effect – was very strong. Private International Law has developed as a system very recently. Judicial decisionshave contributed largely in shaping this branch of law but it is also influenced bycontinental thoughts. It is necessary to focus on its historical development before anyserious discussion on Private International Law issues.

1 2

http://www.dfa.ie/home/index.aspx?id=366- Oct 5th / 2013 Ibid-1

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„Adequacy of principles of private international law cannot be understood unless we know from where principles and concepts have originated and how they developed from centuries.3 In course of it‟s evolution, jurists also sought to analyze the foundations of private international law in order to provide its concepts and rules which could explain its working. In this project, the relevancy of studying the historical background, namely the so called Historical method in legal research is given by reference to several well known legal and other researchers like Julias stone, benzamine Cardozo, C.K Allen, Pauline.V Young. The limitations of the historical methods are also given. The historical and political circumstances in which conflictual questions arise are briefly discussed. There after historical evolution is narrated in ancient Roman and medieval period.4 Specifically wherever due to historical ,political circumstances and legal systems came to overlap each other or were forced to take cognizance of another legal system or came to conflict, each other, then private international law said to have arisen. In West, Conflict of Laws first arose in Roman empire which spread over Southern Europe,North Africa and West Asia when Roman Magistrates were called upon to settle the disputes between the people of different nationalities.5 Theoretical thinking and systematic formulation of the subject was done in Europe in the Middle ages, particularly by the Italians. In England subject was developed in 19th century and thereafter, the country became an Empire. Many Theories have evolved providing a rational explanation to its rules.6 The private international aw of the Continental countries have an earlier history. We would survey of historical antecedents of the private international law of the Continental Europe, and India. 2. History of Private International Law:The first instances of conflict of laws in the Western legal tradition can be traced to Greek law. Ancient Greeks dealt straightforwardly with multistate problems, and did not create choice-of-

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Private international Law in India- by F.E.Noronha, p.g 16. Benjamin Corodozo,The nature of judicial process, Universal Publication Pvt Lmt-P-36 5 C.KAllen,TheLawinMaking,1997http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA14&lpg=PA14&dq= C.K+Allen,+The+Law+in+Making,+1997&source=bl&ots=xeVkHucgip&sig=sxCndAPWS1J-t8eCK2KX4cWpos&hl=en&sa=X&ei=m1zUsnwBIaJrgeTv4HYCQ&ved=0CDkQ6AEwAw#v=onepage&q=C.K%20Allen%2C%20The%20Law%20in% 20Making%2C%201997&f=false-Oct 4th /2013 6 Pauline V.Young, Scientific Social Surveys and Research, p-148http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA15&lpg=PA15&dq=Pauline+V.Young,+Scientific+So cial+Surveys+and+Research,+p148&source=bl&ots=xeVkHuchms&sig=lEHYLfUKM6AfPcv3VNMYZhWWbMQ&hl=en&sa=X&ei=iG5zUvNOIGNrQeYzIGgAQ&ved=0CCgQ6AEwAA#v=onepage&q=Pauline%20V.Young%2C%20Scientific%20Social %20Surveys%20and%20Research%2C%20p-148&f=false-Oct 6th /2013 4

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law rules. Leading solutions varied between the creation of courts for international cases, or application of local law, on the grounds that it was equally available to citizens of all states. „More significant developments can be traced to Roman law. Roman civil law (Jus Civile) being inapplicable to non-citizens, special tribunals had jurisdiction to deal with multistate cases. The officers of these specialized tribunals were known as the “Praetor Peregrini”.7 The Praetor Peregrini did not select a jurisdiction whose rules of law should apply. Instead, they "applied" the "Jus Gentium." The Jus Gentium was a flexible and loosely-defined body of law based on international norms. Thus the Praetor peregrini essentially created new substantive law for each case. Today, this is called a "substantive" solution to the choice-of-law issue.8 „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, Pisa and Venice. The need to adjudicate issues involving commercial transactions between traders belonging to different cities led to the development of the theory of “Statuta”, whereby certain city laws would be considered as StatutaPersonalia "following" the person whereby it may act, and other city laws would be considered as StatutaRealia, resulting in application of the law of the city where, e.g., the res would be located (cf. lexsreisitae)9. 3. Ancient Roman Law:Roman Law is regarded as the foundation of Civil Law system or Continental Law. Though it cannot be said that any Theory of Private International Law or Conflict of Laws developed in Private International Law, The Roman Law, the condition, circumstances and problems and questions arising in leading to such theory were very present in period Roman imperial period. 10 Roman jurisprudence given birth to certain basic concepts, principles, rules and approaches as follows:a) Concept of Domicile, which thereafter, in Common Law, became the “connecting factor” for determination of Personal Law, i.e status, capacity and the like as a contrasted with Nationality and Citizenship which are the connecting factors of Civil Law.11 b) The Rule of “ LexSitus” that immovable property is governed by Law of Place where it is situated.12 7

Supra-6 Conflict of Laws-Encyclopedia Britannica- http://www.britannica.com/EBchecked/topic/333023/conflict-of-lawsOct 3rd / 2013 9 Supra-5 10 For history of Rome and Civil Law, Andrew Borkowski, Text Book on Roman Law. P-363.7th Edition. 11 Paras Dian and PeeyushiDiwan-Private International Law-4th edition-P-59 12 R.H Gravson, The Conflict of Laws, London-Sweet nad Max Well Limited,6 th edition 1969, p-30http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA15&lpg=PA15&dq=Pauline+V.Young,+Scientific+So cial+Surveys+and+Research,+p148&source=bl&ots=xeVkHuchms&sig=lEHYLfUKM6AfPcv3VNMYZhWWbM 8

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c) The personal Law:- In terms of which in areas personal to subject like family law: Succession, Marriage, the individual would be governed by the law of his place of origin and community to which he belongs and carried that law with him whenever he want.13 „The contribution of Roman legal system towards the evolution of Private International Law is the rules of Origin and Domicilum i. e. law of natives and alien. A person had his Origin in the place to which his father or mother (if he is illegitimate) belonged. Domicilium meant the relation between a man and the urban community which he had chosen for his permanent residence. Roman civil law ( jus civile) being inapplicable to non-citizens, special tribunals had jurisdiction to deal with multi-state cases. The officers of these specialized tribunals wereknown as the Praetor Peregrini14. The Praetor peregrine did not select a jurisdiction whoserules of law should apply. Instead, they "applied" the Jus Gentium. The Jus Gentium was aflexible and loosely-defined body of law based on international norms. Thus the praetor peregrine essentially created newsubstantive lawfor each case. Today, this is called a"Substantive" solution to the choice-of-law issue15‟. a. Ancient Era„All the conditions that could be said to be essential for the development of rules of private international law were present during the Roman Empirehas its own law. To the Roman citizens the Roman law applied and to the citizens of provinces, the provisional law applied.Disputesbetween Romans were decided under the Roman Law. But the disputes between citizens of provinces ( who were aliens of Romans) were decided by a different law, called law of nations.16 This seems to be the reason that, despite ideal conditions for the development of private international law during the Roman Empire. Thus, the Corpus JurisCivilis does not contain even a word on the application of foreign law in any situation. 

After the fall of Roman Empire:

After the fall of Roman Empire law again became personal. In such system, the rule of law to which the defendant belonged must prevail. So, there was no scope for the growth of Private International Law. With the fall of Roman Empire, begins the era of personal laws, which covers roughly a period four centuries, from 6th to 10th century17. This ended the territoriality of Roman Law. The implication of law becoming personal was that whenever a person went, Q&hl=en&sa=X&ei=iG5zUvNOIGNrQeYzIGgAQ&ved=0CCgQ6AEwAA#v=onepage&q=Pauline%20V.Young%2C%20Scientific%20Social %20Surveys%20and%20Research%2C%20p-148&f=false- Oct 4th/ 2013 13 Private international Law in India- by F.E.Noronha, p.g 16. 14 Infra-15 15 http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law- Sep 28th/ 2013. 16 ParasDiwan- Private International Law- Fourth edition.P.g no- 53 17 Ibid

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he carried his law with him. Thus a Saxon was governed by Saxon law and Sabian was governed by Sabian law, where ever he might go. Only under one exception that same criminal law applies. „To all persons, Sometimes, Parties themselves specified the law by which their transactions would be governed. It is likely that in such type of situation some cases of conflict of personal laws might have arisen. But no coherent picture is discernible18. 

In 11th and 12th centuries:-

„Gradual development of feudalism in North and growth of Italian cities in the South, in 11th and 12thcentury gave rise to the territorial nature of law. A large number of cities likeFlorence,Bologna, Milan and Padua emerged. Each of these cities was subject todifferent system of laws which were applicable to the residents therein.19 „The 11th and 12th centuries witness the exit of era of personal laws and replacement by era of Feudalism in North of Alps and of the city sates to South Alps. It is a remarkable historical development that two diverse tendencies put the application confined only to era of personal laws to an end.20 During this period in England, France , Germany and Netherlands and other countries feudalism came into existence21‟. b. The Medieval Era:Statutists and Glossators:In 476 A.D with the fall of Rome to the Barbarians, an Era of personal law commenced in terms of which the members of each tribe were governed by their respective laws and they lived under their own wherever they might be.22 „During the Middle Ages(476-1453 A.D), Feudalism prevailed in Europe which made law again territorial. As a part of renaissance i.e., revival of classical Graeco- Roman culture of Northern Italy very particularly Bologna as also Ravenna, Pavia and Verona scholars began to re-study Justian‟s forgotten “Digest of Civil Law” by glossing over the ancient text and writing their nothings or glosses in the margins thereof (the word “Glossa” in Latin means “a difficult word).23‟ The scholars known as Glossators and their 13th century successors known as post-glossators evolved their own solution to the problem arising through the conflict of laws among the city sates of Italy.24

18

Ibid-12 Supra- 11 20 Supra-12 21 Supra-16 22 R.H.Graveson, Vol-1, p-586 23 Infra-21 24 EugenF.Scoles,-Peterhey,ConflictoflawsP-8http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA17&lpg=PA17&dq=Eugene+F.Scoles,+Peter+hey,+Co nflict+of+laws+P-8.&source=bl&ots=xeVkHudfmp&sig=ZtUYlChl-Qgta7v19

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During the 12th and 13th centuries in the city states of Italy like Florence, Venice, Genoa, Milan though nominally the Roman Law was still in force, yet each of them developed their characteristic local laws called “Statuta”.25 Two basic questions arose frequently:a) Whether the statutes of a City States are applicable to foreigners . b) Whether the effects of Statute extend outside it‟s territory and whether they are applicable to persons originally from its territory but now residing else where. 

13th to 18th Century:

With the development of commerce and transaction dispute arose between individuals of two cities of Italy. Jurists tried to solve those problems by focusing on rules of Roman law, who are known as Glossators. However, the early Glossators were not so muchsuccessful to this end, but the post-Glossators in 13thcentury were. The post Glossatorsdiscovered the Statute theory. According to this theory law can be divided into twocategories: I. Real Statute and II. Personal Statute. This was aslo the age of revival of Roman Law.26In middle ages the word „statute‟ meant any law or custom which prevailed in any city of Italy contrary to Italian Law. The main purpose of real statute is to regulate things and the purpose of personal statuteis to deal about personal matters. Real statutes were considered essentially as territorialwhile personal statutes were personal. The law of person would be applicable unless such personal law was opposed to the “Public Order” of the city. Bartolus was a greatestscholar amongst other during this period. However, this theory was not perfect asclassification of „real‟ and „personal‟ was not unanimous amongst cities and thedefinition of „public order‟ was not clear27. 4. Origin and Development of Private International Law in England:

Medieval Era:-

„Although from very beginning England had several systems of law and hence the possibility of conflict of laws and need for their resolution could have existed, but for several historical reasons, the rules of private international law could not develop before the 17th century.28 The dominant reason for this state of affairs was the steam- rolling rule that to all suits before the

02Pvrd_N83I&hl=en&sa=X&ei=pXFzUqfeHs2TrgeumoGgDA&ved=0CCsQ6AEwAA#v=onepage&q=Eugene%2 0F.Scoles%2C%20Peter%20hey%2C%20Conflict%20of%20laws%20P-8.&f=false- Oct 7th/ 2013 25 Private international Law in India- by F.E.Noronha, p.g 17 26 Supra-12. 27 Origin and Development of Private International Law- by S.M MasumBillah- 15th Jan 2010.http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law 28 Supra-26

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English courts, the rules of English law applied. Thus in the middle ages there never arose a case of conflict of jurisdiction. „The comparative geographic isolation of England from the continent was an obstacle inshaping private international law in UK. It is true that in England there were two sets of legal rules one was equity administered by chancery courts and another was common lawadministered by common law courts. But this conflict should not be confused with theconflict of choices of law. Equity and Common law were two sets of legal rulesapplicable in the same country.When Scotland was unified with England a new situation arose. England was influenced by AngloSaxon Law while Scotland was influenced by Roman law. Then there weresome obvious conflict of laws with the unification of Scotland and England. The problemof this kind was firstly arisen in Calvin’s Case.29 In some cases, English courts showed their willingness to take evidence of foreign law. In seventeenth century drew blank in development of private international law. In seventeenth century a rule of English Law also laid down that English courts had no competence to take cognizance of foreign suits. At that time England had some special courts which entertained thecomplaints of foreigners or to hear disputes relating to trade or commerce. In the latter case courts applied the Law of Merchants which was a universal law and not the law of any country.30 In that case the English courts had torecognize and apply the laws of Scotland. From that time Private International law inEngland has been developed by judicial decisions from case to case and situation tosituation.The first treatise on Conflict of Laws was written by famous jurist Joseph Story (1779-1845).31 Westlake and Dicey followed him. The main concern of their writings is attaining justice in a given case involving foreign element. To be able to do justice in a case theyhave formulated the Rules of Conflict of Laws. Thus in the beginning of the seventeenth century, although the English courts could entertain suits having foreign elements, they were reluctance to entertain them. At this time they showed their willingness to enforce foreign judgments. 

Modern Era:

In the eighteenth century the British Empire had reached the dimensions on which, „sun never sets‟. The various constituent parts of the empire had different laws. With the ever growing trade, commerce and intercourse among the peoples of the empire, there was a spate of cases having foreign element. But, as usual, English courts took time to face the realities squarely.32

29

Calvin;s case- Coke, Sir Edward. "Calvin's Case, or the Case of the Postnati-and Calvin‟s case Wikipedia.http://en.wikipedia.org/wiki/Calvin's_Case 30 Supra-31 31 Infra-16 32 Ibid

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The nineteenth century can justly take the credit international law start taking shape.33

for a period in which rules of private

5. Private International Law in France:-medieval era:„Statute theory was carried to France in 16thCentury. It was refined and developed there by the jurists. The famous jurists of this time are Dumoulinand D‟Argentre. By the end of 16thcentury with the fall of feudalism and rise of sovereign national state, the conceptof national statute developed in Europe. Then the territorial nature of law came to bewidely accepted.34 6. Netherlands: Development by Huber in 17th Century:-medieval era:Dutch jurists specially, Max Huber refined statute theory. Huber formulated threemaxims of Private International Law: • The laws of the state have force only within the territorial limits of thesovereignty of the state. • All persons within such territory are bound by the laws of the sovereign. • By reason of comity, every sovereign admits that the consequences of theoperation of a law in a foreign country shall be recognized by the courts of thecountry unless such consequences will not prejudice the subjects of the sovereign by whom its recognition is sought the formulations of Max Huber have been named as theory of acquired rights. 35 And theseformulations have practical influence on the development of conflict of laws in Englandeven today. 7. The Hague Conference:The Hague Conference on Private International Law is an intergovernmental organization in Hague which is charged with the progressive unification of the rules of private international law. It was the first international body established in Hague in the year 1893. It is the most leading intergovernmental organization in the field of private international law. It has drawn up to 38 international treaties or conventions to overcome legal obstacles faced by individuals and companies in cross-border relations and transactions.36 The great man behind this was tobias Asser, the only Dutch citizen so far to receive the Nobel Prize (1911).37 Hague Convention has produced Seven Conventions, in the field of marriage, divorce, marital property relations, protection of children and Civil procedure. 38

33

Ibid http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law-27th Sep/2013 35 The Indian High Court, 1861. 36 Hague Conference-http://www.dfa.ie/home/index.aspx?id=366- Sep29th/ 2013 37 Ibid-26 38 THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW-Current problems and Perspectives-By HANS VAN LOON.- http://www.ehu.es/cursosderechointernacionalvitoria/ponencias/pdf/2002/2002_1.pdfSep23rd/2013. 34

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First, while Asser was certainly a visionary, he was by no means doctrinaire. He strongly believed in the need to overcome legal obstacles to the internationalmobility of people and commerce. But he also recognized the reality of certainlegal differences – of traditions and cultures – among different nations. In his view then, unification of private international law should not aim at creating one uniform “world private law”. Rather, it should lead to the building of bridges between different legal cultures – in other words, towards unity in diversity. Second, Asser cared almost as much about the process to reach the results – the negotiation process – as about the end product – the treaties. Therefore, he paid much attention to the careful, rigorous preparation of the negotiations, but also to the need to listen, to persuade rather than to use force, to keep all delegates involved.39 These two characteristics of Asser's approach – his aiming at unification while respecting legal diversity, and his caring for the right proportions of rigour and flexibility in the negotiation process – have remained guiding principles of the work of the Conference for more than a century now. They are as valid today, I believe, as they were in 1893. The key to harmony, however, of the first generation of Hague Conventions – the principle of nationality – turned out to be a vulnerable one. The idea, as originally formulated by Pasquale Mancini, was that Italian or Spanish citizens would be followed by their Italian or Spanish law, wherever they went, as part of their cultural heritage and their personal freedom: their national law would always determine if and under what conditions they could obtain a divorce, have custody over their children, etc. However, this cosmopolitan nationality concept could not resist the upcoming nationalism at the time. It did not take long before States started to denounce the Hague Conventions of the first generation.40 8. Germany: Development by Von Savigny in the 19th Century: „German Jurist Von Savigny made a definite break from the previous approaches to thesubject and formulated a new theory of Private International Law. Savigny has rejected both the statute theory and territorial theory of Private International Law. Savigny‟sformulations can be briefly stated as follows: 

Each legal relation has its natural seat in a particular local law and it is thatlaw which must be applied when it differs from the law of the court. Thisis the „natural law‟ concept of law predominantly considered to be theconnecting factor of modern Private International Law.



There are rules of private international law which are universal andcommon to all legal systems.

39

http://www.ehu.es/cursosderechointernacionalvitoria/ponencias/pdf/2002/2002_1.pdf- Sep29th /2013- by Hans Van Loon.- P- 25 40 Ibid-p-25

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The second proposition of Savigny has been subjected to criticism because it is not possible that Private International Law of different countries entails universalizedcharacteristics. But his contention on the natural seat of each legal relation made to therules of Private International Law is more scientific and accurate41.‟ 9. Evolution in India:ANCIENT PERIOD:It is difficult to say that private international law existed in ancient India. It is well-known that much before the advent of the Mughal rule in India, particularly during the gupta and mauryian empires, India had a flourishing trade and commerce with countries far and beyond, across the high seas and through the inland routes. It seems evident that many suits pertaining to contracts and transactions relating to trade, commerce and other matters must have come before Indian courts. It is also evident that during the Gupta Empire and mauryian empire, law in India was territorial, though usage and custom too had their place, sometimes supplementing law, sometimes even over riding it42. 

Medieval era:

with the establishment of the Mughal Empire in India on many matters rules of Muslim law came to be applicable however, in most matters, if both the parties were Hindus, Hindu law applied and if the both the parties were Muslims then Muslim law applied. In personal matters, in the entire area of family law, it was personal law of the parties that applied. Hindus were governed by the Hindu Law and Muslims were governed by Muslim Law. Thus emerged the era of personal laws in India43. 

Modern era (Pre-Independence period):

During the British period, from its very beginning to its end various communities in India were governed by their personal laws in personal matters. During the British period , India developed contacts not merely with the countries of British Empire but also with the other countries. The result was cases with foreign elements did com adjudication before the Indian courts. Just as in other matters, so in cases having foreign elements, Indian courts decided them mostly by applying rules propounded in English decisions. Thus, basically the rules of Indian Private International law are based on the rules of English Private International law. Indian court have almost blindly, apishly, followed and adhered to English precedents. Probably in a dependent India nothing else was possible44

41

http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law-oct 7th/2013 Infra-32 43 ParasDiwan- private International law- 4th edition- p.g n0-66. 44 Supra-37 42

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Warren Hasting‟s regulationof 1772 and Character of 1774: Diversity of Lexfori.45 „Modern Indian law begins in Bengal with warren hasting‟s regulation of 1772, where in section 23 for Civil Law to Be applied in the Bengal mofussil prescribed application of Hindu and Mohammedan laws to Hindus and other religious usages or institutions.46 Thus in 1772, Warren Hastings transformed the principle of personality of laws from it‟s simple form of separate jurisdictions, as under the character of 1753, into the sophisticated and complicated system whereby the LexFori rather than jurisdiction was diversified. Unfortunately, It was not immediately adopted by the British Parliament. The Regulating Act, 1773 and the Charter of 177447 empowered and the newly established Supreme Court at Calcutta to apply English law if suited to Indian conditions. In 1781, the Act of 1773 was amended by the Act of Settlement.48This amendment compares with the warren Hastings regulation of 1772 in that on certain areas of legal relationship, the Supreme Court of Calcutta had a diversified LexFori. It was required to apply to Hindus and Muslims their respective laws on matter relating to inheritance, succession, contract and dealing between party and party.49 In 1781, the Bengal chief Justice Sir Elijah Impey added “ Succession to the matters of personal law and these matters were re-enacted in Lord Cornwallis regulations of 1793. This legislation was adopted in Bombay mofussil in 1799, in Madras mofussil in 1802 and Oudh in 1803.50 In 1861, when the jurisdiction of Supreme Court and mofussil Courts was amalgamated into original and appellate jurisdictions respectively of the High court which also inherited their 45

Secretary of State vs Administrator General of Bengal, (1868) 1 BLR (OC) 95.http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA22&lpg=PA22&dq=Secretary+of+State+vs+Administr ator+General++of+Bengal,+private+international+law&source=bl&ots=xeVkHlegoj&sig=IsryPgA3qhayNBCZNE KmCuZO26I&hl=en&sa=X&ei=cBZyUsy1FMjbkgW0Eg&ved=0CCgQ6AEwAA#v=onepage&q=Secretary%20of %20State%20vs%20Administrator%20General%20%20of%20Bengal%2C%20private%20international%20law&f= false- 0ct 25th/2013 46 Ibid 47 Infra-14 48 The Indian High Court Act, 1861.http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA22&lpg=PA22&dq=Secretary+of+State+vs+Administr ator+General++of+Bengal,+private+international+law&source=bl&ots=xeVkHlegoj&sig=IsryPgA3qhayNBCZNE KmCuZO26I&hl=en&sa=X&ei=cBZyUsy1FMjbkgW0Eg&ved=0CCgQ6AEwAA#v=onepage&q=Secretary%20of %20State%20vs%20Administrator%20General%20%20of%20Bengal%2C%20private%20international%20law&f= false-oct 8th/2013. 49 Ibid 50 M.TierAkolda, Evolution of Personal Laws in India and Sudan, Journal of Indian Law institute, Vol-26http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA21&lpg=PA21&dq=M.Tier+Akolda,+Evolution+of+P ersonal+Laws+in+India+and+Sudan,+Journal+of+Indian+Law+institute,+Vol26&source=bl&ots=xeVkHufcjp&sig=JoFkEBB3A9NnVPFoL6wFHoBirP4&hl=en&sa=X&ei=LHhzUpLXFMaBr QeC8YHoCw&ved=0CCoQ6AEwAA#v=onepage&q=M.Tier%20Akolda%2C%20Evolution%20of%20Personal% 20Laws%20in%20India%20and%20Sudan%2C%20Journal%20of%20Indian%20Law%20institute%2C%20Vol26&f=false- Oct 22nd/ 2013.

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respective laws, a new twist was added to variation of subject –matter. Before 1861, personal laws and their subject-matter varied from supreme court to mofussil courts. In 1861, however, the variation could be seen in the original and appellate jurisdiction of High Court.51 10. Genesis of Private International Law in India: There has been a genesis and evolution both in Civil law countries traceable to Roman Law and in the common law countries from the 18th century52. In India, from the commencement of British rule 1772, there has been an evolution of rules to regulate inter-personal conflict of laws considering the personal of different communities in India.53 Indian, however has had an older development of Private International Law peculiar to historical, political and social circumstances. Before Independence and till the recognition of states, India was a federation between British India and native Indian Princely States, having distinct legal systems. As a result, conflictual questions often arose in the area of law and administration of justice particularly the recognition and enforcement of “foreign judgments because at that time a judgment passed in princely state was “foreign” to court system of British India which we have now inherited. The best refection of this is seen in the provisions of section 13 of Civil procedure Code of 1908 dealing with recognition of foreign judgments. India thus had inter-state Conflict of laws and abundant preindependence case law of the Indian high courts deals with it.54 Having attained Independence , the growth of true Indian law on the principle and subordinate questions of private international law is inevitably hampered. Conflict of Laws again arose soon after the Independence with the formation of Pakistan , the abrupt vivisection of common legal system and the resultant effects on the pending litigation and the rights of Indian‟s divided population. Genesis and evolution of Private International Law in India has got really taken place. It is rather the narration of how English rules of private International Law have been applied in Indian conflict cases. The evolution was going in England. This continued even after Independence.55

51

Supra-48 http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law- Oct/5th 2013 53 supra-24 file:///E:/files/Academics/9th%20sem/conflict%20of%20laws/pri%20int%20law/Private%20international%20law% 20in%20India%20%20adequacy%20of%20principles%20in%20comparison%20...%20%20F.%20E.%20Noronha%20-%20Google%20Books.htm- Sep 27th/2013 54 Supra-50 55 Ibid 52

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

Modern era:

But now after independence it is not at all necessary or logical to ape any country and follow its rules. Now we are in a position to develop the rules of private international law in accordance with the social needs and circumstances of our contemporary society and in accordance with the ideas and notions of world justice.56 11. Theories of Private International contemporary Times):-

Law(

Theories

and

Developments

in

Doctrinal matter in Private International Law was virtually monopolized by Civil Law thinkers. In Civil Code Nations, Private International Law is a part of the Code. Over nearly 200 centuries, therefore, the development of the Law in this field in Civil Law Nations consisted of new provisions formulated in civil new codes or their re-formulation in new or revised codes.57 It is only in the recent times that theoretical analysis of common law problems has been taken over by the common law jurists particularly Americans58. a) Statutory Theory: The statute theory is probably the most ancient theory. In it‟s original version, it is a product of the 13th century Italian theories. It was propounded by Bartoluswho may be called the father of this theory.Personal law may be applied if it is not opposed to public policy or public order.59 b) International Theory: There are rules of conflict of laws which are universaland common to various legal systems of the world. This theory rejected the statute theory as well as the territorial theory.Savigny said, solution of the problem did not lie in classifying the loss on the basis of their object, but in the ability to find out the seat of each legal relationship, as each legal relationship has its natural seat in some local law.60 Therefore, even if the law of the forum is the law of the place which is the seat of legal relationship, it will be the later which will be applicable . The international treaty has been criticized on many counts. „The most damaging criticism of this theory is the its starts on the assumption that there is uniformity in the loss of the countries on the characterization of legal relations, why in fact it is not so. For instance, reach of marriage promise is regarded as breach of contract in some countries while in some it is regarded as a tort. In such a situation, it may be difficult to find out the natural seat of the legal relationship. Then, in our contemporary 56

Supra-32 Infra- 50 58 Ibid 59 Ibid 60 Supra-44 57

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world there are still more than one international systems, of which the important ones are, The common law system and civil law system.61 c) The Territorial or Acquired Rights Theory: Territorial and Vested rights Theory was originally formulated by the Dutch jurist Ulrich Huber(1635-1694) in his book “De Conflict Legam”. Later it was elaborated by Dicey in England and by Beale in U.S.62 As expounded in Holland‟s jurisprudence, this theory is based on the principle of territoriality of administration of law, that judges can only enforce the law and recognize the judgment of their own legal system to which they belong or circumscribed by the territory.Courts of sovereign state donot apply foreign law but merely recognize the consequences of the operationof a foreign law. This theory tries to reconcile the territoriality of a law andthe need for private international law. Dr. Cheshire has vehemently criticizedthis theory as being, „unnecessary‟, „untrue‟, and „unhelpful‟.63 d) Local Law theory: „Local Law Theory is expounded by Walter Wheeler Cook in his book “Logical and Legal Basis of Conflict of Laws 1942”. This theory is fully founded on Common Law genius namely that Law is not deducted from logical reasoning of any philosophers and jurists, any inherent principle but simply an observationof what judges have done in the past in order to prophecy how they will probably act in the future.64 This theory is a slight variation from territorial theory.The gist of this theory is that the court recognizes and enforces a local rightthat is created by its own law. But as the dispute in question has a foreignelement the court would necessarily apply the rule of the forum that would beapplied in the case of a purely domestic dispute.65 But for reasons of socialexpedience and practical convenience it takes into account the laws of aforeign country in which the decisivefacts have occurred. Cheshire hasobserved that this theory is a „sterile truism‟. Sterile because it affords no basis for the development of a system of Private International Law.66

61

Supra-32 F.Scoles& peter Hay, Conflict of laws, ch-2, p-5-14.http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA17&lpg=PA17&dq=Eugene+F.Scoles,+Peter+hey,+Co nflict+of+laws+P-8.&source=bl&ots=xeVkHudfmp&sig=ZtUYlChl-Qgta7v02Pvrd_N83I&hl=en&sa=X&ei=pXFzUqfeHs2TrgeumoGgDA&ved=0CCsQ6AEwAA#v=onepage&q=Eugene%2 0F.Scoles%2C%20Peter%20hey%2C%20Conflict%20of%20laws%20P-8.&f=false- Oct26th/ 2013 63 Supra-32 64 Ibid 65 Supra-32 66 Dicey, Conflict of Laws( 5thedi), p-43, General Pronciple No-V.http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA14&lpg=PA14&dq=C.K+Allen,+The+Law+in+Makin g,+1997&source=bl&ots=xeVkHucgip&sig=sxCndAPWS1J-t8eCK2KX4cWp-os&hl=en&sa=X&ei=62

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e) The Theory of Justice: The approach of English courts to privateinternational law is pragmatic and ethical. It has sociological, ethical and legalaspects towards the end of justice. According to Dr. Graveson, the basis of Public International Law is sociologically, in the international need for fair treatment in the private transactions of individuals, ethically, in the desire of English courts to do justice; andlegally,in the obligation of their oath inoffice. In essence the rules of Private International Law in England are madefrom the precedents with the ultimate view of doing justice.67 f) The American Revolution:The major theoretical developments of private international law over the last few decades have taken place in the U.S.A. Indeed they have been described as a new American revolution.68 A variety ways of tackling choice of law problems has been put forward in the USA, they tend to have a similar basic characteristic- and analysis of the issues arising in a particular case with a concern devicethe appropriate rule for this more narrowly formulated problem as compared with the far more broadly based conventional choice of law rules. This analysis of issues in individual cases requires the court to examine the particular substantive rules of law in conflict in the case, to identify the policies at issue and to resolve any conflict so identified by choice of law rules appropriate to that narrowly defined conflict.69 12. Conclusion: In my general Sense, The Conflict of laws (or private international law) is a set of procedural rules that determines which legal system and which jurisdiction apply to a given dispute. The rules typically apply when a legal dispute has a "foreign" element such as a contract agreed to by parties located in different countries, although the "foreign" element also exists in multijurisdictional countries such as the United Kingdom, the United States, Australia and Canada. The term conflict of laws itself originates from situations where the ultimate outcome of a legal dispute depended upon which law applied, and the common law courts manner of resolving the conflict between those laws. In civil law, lawyers and legal scholars refer to conflict of laws as private international law. Private international law has no real connection with public international law, and is instead a feature of local law which varies from country to country.The Hague Conference on Private International Law, though it has a history of well over a century, has been going through a rapid and profound development in recent years. This reflects the m1zUsnwBIaJrgeTv4HYCQ&ved=0CDkQ6AEwAw#v=onepage&q=C.K%20Allen%2C%20The%20Law%20in% 20Making%2C%201997&f=false- Oct /27th 2013 67 http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law- by S M Masum Billah15 January 2010.. 68 See kegel (1964) II Hague Recueil 95. 69 http://www.cambridge.org/us/academic/subjects/law/private-international-law/confluence-public-and-privateinternational-law-justice-pluralism-and-subsidiarity-international-constitutional-ordering-private-law- By Alex Mills- Confluence of Private International Law.

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changing character of private international law, which is no longer a discipline regarding the life and business of the elite, butof everyone. The challenge is to respond to new needs quickly and adequately,preserving the well-tested working method, adopting them where necessary, andto maintain the high and highly practical ideals of promoting legal security, theorderly and efficient settlement of disputes and the rule of law, while respectingthe diversity of legal traditions. In my general sense, Conflict of Laws has become a veritable playpen for judicial policy makers. The courtsare saddled with a cumbersome and unwieldy body of conflict laws that createsconfusion, uncertainty and inconsistency as well as complication of the judicial task. Theapproach has been like that of a misguided guided judge, who treated a case, not having proper knowledge about private international laws, will definitely be big loss to the advocate and the party in obtaining justice but not to the Judge.

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