Sucharita Manjunath, UPES Dehradun
Editor’s Note: Private International Law is the legal framework composed of conventions, protocols, model laws, legal guides, uniform documents, case law, practice, and custom, as well as other documents and instruments, which regulate relationships between individuals in an international context.
Private International Law is a merger of two concepts: that of Private Law and of International Law. Private law is the law that is voluntarily invoked by individuals or States acting in the capacity of an individual by entering into any sort of legal relationship.[i] International law is the law arising between different national (or municipal) systems of law.[ii]
In the words of Cheshire: “Private International Law, then, is that part of the law which comes into play when the issue before the courts affects some facts, events or transaction that is so closely connected with a foreign system of law as to necessitate recourse to that system.”[iii]
The reason behind Private International Law is the existence in the world of a number of separate municipal systems of law.[iv]National legal systems reflect differences in history, tradition, and socio-cultural values. The United States has a common law system characterized by a strong emphasis on judicial decisions as an independent source of law. Canada combines this common law system with civil law Quebec and considers it bi-jural.
Civil law systems trace their origins to Roman law and traditionally rely on comprehensive codes for ordering their legal materials.[v]The legal systems of the world consist of a variety of territorial systems, that is their own municipal system, each dealing with the same phenomena of life-birth, death, marriage, divorce, bankruptcy, contracts, wills and so on-but in most cases dealing with them differently. The moment that a case is seen to be affected by a foreign element, the court must look beyond its own internal law.[vi]
Foreign element may be foreign law or facts, that is, factual circumstances, factual content, factual ingredients of a legal cause of action, fact patterns which in one or more ways are linked to a foreign legal system or a foreign country. It just means contact with a foreign system.[vii]
When it is said that cases having foreign elements are to be determined by reference to relevant foreign law, the question is what is meant by ‘foreign law’. When a case is decided by a court with reference to a system of law which is different from a system of law which the court will apply to a purely domestic case, such law is called foreign law.[viii]
Private International Law suffers from a curious juxtaposition. In spite of the term ‘international’ being part of its nomenclature, the only international aspect is the foreign element. Private International Law, though has an international aspect, is essentially a branch of municipal law. This is why every country has its own private international law. However, Private International Law through a branch of municipal law, does not deal with any one branch of law, but is concerned practically with every branch of law and thus has a very wide ambit.[ix]
The function of Private International Law is complete when it has chosen the appropriate system of law. Its rules do not furnish a direct solution to the dispute, and it has been said by a French writer that this department of law resembles the enquiry office at a Railway Station where a passenger may learn the platform where a train starts.[x] Private International Law, by its very nature, merely indicates the governing law under which a case is to be decided[xi]. The role of Private International Law is to determine the following:
- In what circumstances the court will assume jurisdiction over cases having foreign elements? (Choice of Jurisdiction)
- Which law will the court apply in deciding such cases, the native municipal law or a foreign law? (Choice of law)
- In what circumstances it will recognize a foreign judgment or when it will order the execution of a foreign decree?
- Codification of Private International Law in India[xii].
Statutory provisions of Private International Law in India are very rare. The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract Act, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act, etc. In addition, some rules have also been evolved by judicial decisions.[xiii]
- Unification of Private International Law.
Need for the unification of Private International Law arises primarily because of two reasons. The internal laws of different countries differ from each other and the Private International Law rules adopted by different countries also differ from each other. Therefore unification of laws also takes place in two steps:
- Unification of Internal laws of the countries of the world.
- Unification of the rules of Private International Law.[xiv]
a. The first step in the direction of the unification of internal laws was taken by the Bern Convention of 1886 under which an international union for the protection of the rights of authors over their literary and artistic works was formed. After the First World War, an International Institute for the Unification of Private Law was established at Rome.[xv]
The Warsaw Conventions of 1929 which has been amended by the Hague Convention of 1955 is a very important landmark in that direction. This Convention provides for uniform rules relating to the carriage of goods and persons by air.
In the Brussels Convention of 1922-23, the unification of rules relating to the carriage to goods and persons by sea came into existence. Then came in the Geneva Convention on International Carriage of Goods by Road of 1956. The Geneva Conference of 1930 resulted in a Convention on the Uniform Law of Bills of Exchange.
b. On account of basic ideological differences among the countries of the world, it is not possible to achieve unification of all privacy laws. Therefore, another method of avoiding the situation where courts in different countries may arrive at different results on the same matter is the unification of all privacy laws.
In 1951, a permanent bureau of Hague Conference was constituted. This has been done under a Charter which has been accepted by many countries. There are numerous other Charters, Conventions and International Institutes working towards unifying Private International Law. But international Conventions can be part of municipal law only when the same has been recognized or incorporated in the municipal law.[xvi]
Formatted on February 27th, 2019.
[i] Steve headly, private law conference paper
[ii]Dr. F.E. Noronha, Private International Law in India: adequacy of Principles in Comparison with Common Law and Civil Law Systems p.33 (Universal Law Publishing Co. 2010).
[iii] Cheshire, Private International Lawp.5 (8th edition).
[iv]Cheshire, North and Fawcett, Private International Law p.4 (Oxford University Press 14th Edition 2008).
[v]Nigel Banks, Legal Systems, Artic Human Development Report 101,102(2004).
[vi] Supra note 4, at p.5.
[vii] Dicey & Morris, The Conflict of laws p.3(8th Edition).
[viii]Paras Diwan & Peeyushi Diwan, Private International Law:Indian and English p.39 (Deep & Deep Publications 4th Edition 1977)
[ix]R. Vishwanathan v. Syed Abdul Wajid,1stAIR,(SC 1963).
[x]Indian &General Investment Trust Ltd. v. Raja of Kholikhote, AIR, 508(Cal 1952).
[xi]Supra note 2, at p.32.
[xii]Private International Law is incorporated in the municipal legal systems of different nations and thereby becomes part of that legal system under different procedural as well as substantive laws.
[xiii]Y. Narasimha Roa v. Y. Venkata Lakshmi, 3 SCC, 451(1991).
[xiv]Supra note 8, at p.49.
[xv]The institute is now closely linked with the United Nations and the Council of Europe.
[xvi]Jolly George v. Bank of Cochin, AIR, 470 (S.C. 1980).