Private International Law

01.Definition of private international law

Private international law refers to that part of the law that is administered between private citizens of
different countries or is concerned withthe definition, regulation, and enforcement of rights in situati
ons where both the person in whom the right inheres and the person upon whomthe obligation rests
are private citizens of different nations.
It is a set of rules and regulations that are established or agreed upon by citizensof different nations
who privately enter into a transaction and that will govern in the event of a dispute. In this respect, p
rivate InternationalLaw differs from public international law, which is the set of rules entered into by
the governments of
various countries that determine therights and regulate the intercourse of independent nations.
Private international law has been defined as law directed to resolving controversies between
private persons, natural as well as juridical, primarily in domestic litigation, arising out of situations
having a significant relation to more than one state.
Cheshire
PIL is that part of law which comes into play when the issue before the court affects some fact, event
or transaction that is so closely connected with a foreign system of law as to necessitate recourse to
that system.
Baty
PIL is the rules voluntarily chosen by a given state for the decision of cases which have a foreign
complexion.
M. P Tandon:
"Private international law is a body of principles determining questions as to jurisdictions and
questions as to selection of appropriate law, in civil cases which present them selves for decision
before a court of one state or country, but which involves a foreign element i. e. which effect foreign
persons or foreign or transactions that have been entered in a foreign country or with respect of
foreign system of law"
Pitt Cobbet
"Private international law is the body of rules for determining questions as to selection of
appropriate law, in civil cases which present them selves for decision before the courts of one state or
country, but which involve a foreign element i. e, which effect foreign persons or foreign things or
transactions that had been entered into wholly or partly in a foreign country or with reference to
some foreign system of law."

Private international law may be defined as the rules voluntarily chosen by a given state for the
decision of cases which have a foreign element or complexion.
Thus, where two Englishmen make a contract in Portugal for the sale of goods situated in Lisbon,
payment to be made in London, an English court would certainly recognize and apply Portuguese law
as far as it affected the validity of the contract.
The private international law forms part of municipal laws of a state and is meant for purpose of
deciding weather a given case involving foreign element (i) shall be adjudicated upon by its own
domestic laws or by laws of some other state; and (ii) shall be subject of its courts of some other
state.
Thus private international law deals with cases in which some relevant fact has a geographical
connection with a foreign country and may on that ground raise a question as to the application of
Indian or some other appropriate foreign law to they determination of the issue or as to the exercise
of jurisdiction by Indian or foreign courts.

02.Is Private InternationaI Law is the distinct part

of Law?
PIL is a separate and distinct unit as much as the law of tort or of contract, but
possesses the unity , not because it deals with a particular topic but because it is
always concerned with one or more of three questions namely, jurisdiction, choice
of law and recognition of foreign judgment.
PIL does not give a final decision. It is comparable with a railway inquiry room. By
approaching the inquiry room you can only a ascertain the platform from which a
particular train leaves. It is the train that reaches you to your destination not the
enquiry room.
Comity,convenience and the desire of courts to do justice form the basis of Private
International Law. We can not say it as a ful-fledged law. The main aim of Private
International Law is the desire of the courts to do justice. It is quite distinct than law.
It is essentially a system of indicating choice, choice of jurisdiction, choice of law
and rules for recognition and enforcement of foreign judgement of a foreign court.
Private International law only decide the rule of choice and then indicate the
convenient law that is to be applied. It does not contains the basic feature of law.
There is no conclusiveness and imperative obligation to take a single and particular
view in PIL like the real law. The degree of boundness, obligation is somehow very
low in case of PIL. The very purpose of private international law is to avoid conflicts
of law.
PIL is regarded as law and the reason somehow is that it is a part of municipal law of
a particur state. It varies from state to state. States legislative action is essential for
the evoluation of PIL.

So we may say that PIL is a distinct part of law which meanwhile contain the notion
of law and justice. Somehow the essence of law is present in PIL though it is very
distinctive one.

03.Utility of Private International Law

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

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

2. one of its prime nature is the pursuit and application of the appropriate legal
system and
3. jurists have been more influential in this branch of the law than is typical with
other legal subjects.
Mr. Justice J.C. Shah (as he then was, afterwards C.J.I.) as late as 1963 in R.
Vishwanathan v. Syed Abdul Wajid gives an enlightening explanation of what
Private International Law is It is not the law governing relations between States. It
is simply a branch of the Civil Law of the State evolved to do justice between
litigating parties in respect of transactions or personal status involving a foreign
element. Its rules in the very nature of things differ from State to State, but by the
comity of nations, certain rules have been recognised as common to civilized
jurisdictions. Through part of the judicial system of each State, these common rules
have been adopted to decide disputes involving a foreign element and enforce
foreign judgment, often as a result of International Conventions.
A Division Bench of the Bombay High Court in a case of divorce involving two
conflicting legal systems, Monica Variato v. Thomas Varia stated that the
principles of Private International Law are not universal. They vary from State to
State. What may be applicable in one State may not be applicable in another
State .
In 1952, Indian & General investment Trust Ltd. v. Raja of Kholikhote, the
High Court devoted substantial part of the judgment to general principles of Private
International Law:
The name Private International Law is rather unfortunate because it is difficult to
conceive of a law which is both International and at the same time private. It is
called private inasmuch as it deals with the legal relations of individuals and not
of States; it is International, inasmuch as its rules are enforced by Courts, and in
that respect it is a branch of the ordinary law of the land.

05.What is foreign law?

Foreign law is the law of any other country apart from the law of the country where
an issue is for consideration.
Foreign law is law referenced or cited by a court that comes from a country other
than that in which the court sits. Foreign law is usually not binding on the court
siting it, and citation to foreign law as persuasive can be controversial. However, in
some circumstances, a court may be called upon to determine the meaning of a
foreign statute, such as when one is incorporated into the language of a contract
before the court.

Foreign law is the law of any jurisdiction having a different system of law from that
considering the issue.(David Walker, The Oxford Companion to Law, (1980) p 479)
According to Blacks Law Dictionary, Foreign laws refer to the laws of a foreign
country, or of any other state. In conflict of laws, the legal principles of
jurisprudence which are part of the laws of any other state . Foreign laws are
additions to our own laws and in that respect are called jus receptum
Foreign laws are those laws enacted and in force in a foreign state or country. The courts do not
judicially take notice of foreign laws and so they must be proved as facts.Such proof varies according
to circumstances.

Foreign law may arise in an Bangladeshi court where some foreign element is
involved in the case and the Bangladeshi rules of conflict of laws and international
private law direct that some issue in the case must be determined by foreign law.

06.How foreign law proved?

When foreign law is applicable by virtue of the conflict of laws rules of the forum,
there are several methods by which that law can be made known to the court:
( 1 ) by judicial notice,
(2) by pleading and proof and,
(3) by presumption.
These methods are governed by the lex fori . It is well established that knowledge
of foreign law is not to be imputed to a judge. It is also a basic principle that the
judge can only apply local law: foreign law when relevant operates not as law but as
fact.
The courts will not take judicial notice of foreign law or statutes unless authorized to
do so by statute.
Foreign law is generally determined by the court as a question of fact. The party
who wishes to rely on a foreign law must therefore plead it. It is a basic rule
of procedure that parties are bound by their pleadings and a party may not give
evidence on matters not pleaded.
A judge cannot decide a case containing foreign elements according to his personal
knowledge of the foreign law. It appears that even if the judge had previously lived
and practiced in that other country, his knowledge is irrelevant.

It has previously been indicated that the traditional common law procedure and
practice is to treat foreign law as if it were a fact." This view may be based on the
theoretical premise that anything which is not deemed to be law must be a fact.
One therefore frequently encounters the statement that foreign law is a fact,
although it would be more correct to say that foreign law is treated like a fact.
If foreign law is deemed to be a fact or is treated like a fact, the logical
consequences would be that:
1. Foreign law must be pleaded like a fact;
2. Foreign law must be proved like a fact;
3. Foreign law questions go to the jury in appropriate cases;
4. If facts are not considered on appeal, foreign law cannot be considered on
appeal; and
5. The holding of a court on questions of foreign law in one case is not evidence in
other cases involving the same foreign law problems; and holdings of appellate
courts on foreign law do not have the force of stare decisis.
All these views have been taken in the long history of common law and modern
code procedure. But the application of these views has undergone legislative or
judicial change in many respects in most jurisdictions.
Unwritten foreign law may be proved by the oral testimony of expert witnesses. The
testimony may include the unwritten law as collected from the reported decisions of
the foreign courts and the treatises of learned men; it may also be proved by
printed and published books of reports of decisions of the courts of foreign
countries.
Pfleuger v. Pfleuger case
Where an objection is raised before trial to the omission to plead foreign law, the
defect cannot be cured by judicial notice.
it would appear that in most instances and where exceptional circumstances do not
prevail, a party relying upon foreign law should be prepared by his pleadings and his
proof to establish the foreign law upon which he relies at the trial. The court in the
first instance, may refuse, in the sound exercise of its discretion, to take judicial
notice of foreign law. In such a case, the rules that developed when proof of the law
in all cases was required will apply: the party having the affirmative of the issues
on the merits will be required to introduce his proof of the foreign law and to
sustain his burden of proving it or be defeated, unless he can be aided by any of
the presumptions discussed above. In view of the fact that the presumptions
available to the court may afford only temporary relief from

proving the foreign law, and may, even if they are successful, result in an
objectively incorrect result because of the substitution of the law of the forum, it
would appear that the safest approach is to be ready with proof.

07.Who may be called as a witness to prove foreign law?

The proposition that foreign law must be proved like a fact has led to the English
view that foreign law must be proved by witnesses.
Foreign laws may be proved by the testimony of witnesses acquainted with such
laws. (Frith v. Sprague )
Where the case turned on foreign written law--statutes, codes, proclamations or
decrees, and the like-that law was to be proved in the first instance by copies of the
statutes or decrees themselves; oral testimony alone of the foreign written law was
insufficient.
According to the common law rules, a copy of the foreign statute was required to be
authenticated by exemplification, the testimony of a witness who had examined the
original, or by the certification of a judicial officer of the foreign jurisdiction.
Unwritten foreign law may be proved by the oral testimony of expert witnesses.
Under the English view knowledge acquired by study is not sufficient qualification
for an expert witness on foreign law. He must have had experience as a judge or
advocate in the foreign jurisdiction or have held an office or position which caused
him to familiarize himself with the law to which
he testifies.
The criterion for qualification is that the witness is "skilled" in the foreign law;he
must have familiarized himself with the foreign law. Standards which do not affect
the qualifications of the witness but do go to the weight of his testimony include the
fact he is not entitled to practice in the particular foreign country and his lack of first
hand observation and residence there.

08. Distinction between public international law and

private international law
I. As to consent:
Public international law based on the consent of the state.
Private international law is not based on the consent of the states.
II. As to object:
Public international law regulates relation ship of states inter se and
determine rights and duties of the subject states at international sphere.

Private international law determines as to which law will apply of two

conflicting in a particular case having foreign element.
III. As to conflict of laws:
Public international law does not involve in conflicts of laws.
Private international law involves in the conflicts of laws.
IV. As to nature:
Public international is same for all the states.
Private international may be different in various states.
V. As to sources:
Public international law has its sources in treaties, custom etc. etc.
Private international law has its sources in the legislation of the individual
state to which the litigant belongs.
VI. As to application:
Public international law applicable to criminal as well as civil cases.
Private international law is applicable to civil cases only, which present
themeselves for accession of courts of the state.
VII. As to subject:
Public international law deals with the states.
Private international law deals with the individuals.
VIII. As to municipal law:
Public international law is not part of municipal law but Private International
law is a part of municipal law.
IX. As to jurisdiction:
Public international law does not involves determination on the question of
determination.
Private international law determines court which will have jurisdiction to
decided issue in question.
X. As to scope:
Public international law has wider scope. it is of universe character.
Private international law has lessor scope.

Distinguish between Public and private

international law

09. Definition of marriage

Marriage means the act of uniting a man and woman for life and it is highest
recognized valid legal union of a man and woman for life.
Marriage is a contract both civil and religious, by which the parties engage to
live together in mutual affection and fidelity, till death shall separate them.
Marriage was instituted by God himself for the purpose of preventing the
promiscuous intercourse of the sexes, for promoting domestic felicity, and for
securing the maintenance and education of children.
According to Blacks Law Dictionary,
Marriage, as distinguished from the agreement to marry and from the act of
becoming married, Is the civil status of one man and one woman united in law for
life, for the discharge to each other and the community of the duties legally
incumbent on those whose association is founded on the distinction of sex.
Edvard Westermarck defines marriage as "a relation of one or more men to one or
more women that is recognized by custom or law"
The anthropological handbook Notes and Queries (1951) defined marriage as "a
union between a man and a woman such that children born to the woman are the
recognized legitimate offspring of both partners."
The highest-profile cases to be decided by the U.S. Supreme Court ascertain the
definition of marriage. U.S. v. Windsor challenges the federal definition of marriage
as a legal union between one man and one woman

The legal union of a couple as spouses. The basic elements of a marriage

are: (1) the parties' legal ability to marry each other, (2) mutual consent of the
parties, and (3) a marriage contract as required by law.
In the English common law tradition from which our legal doctrines and concepts
have developed, a marriage was a contract based upon a voluntary private
agreement by a man and a woman to become husband and wife.

Hague Marriage Convention

The Hague Convention that harmonizes different marriage laws, the Convention on
the Celebration and Recognition of the Validity of Marriages, was concluded at The
Hague on 14 March 1978 and entered into force on 1 May 1991. Article 9 of the
Convention holds that, A marriage validly entered into under the law of the State of
celebration or which subsequently becomes valid under that law shall be considered
as such in all Contracting States, subject to the provisions of this Chapter.In short,
one Contracting State must recognize a marriage legally performed in another
contracting state. Currently only three states (Australia, Luxembourg, and the
Netherlands) have ratified the Convention.Another three (Egypt, Finland, and
Portugal)
have
signed
it
A contract made in due form of law, by which a free man and a free woman
reciprocally engage to live with each other during their joint lives, in the union
which ought io exist between husband and wife. By the terms freeman and
freewoman in this definition are meant, not only that they are free and not slaves,
but also that they are clear of all bars to a lawful marriage.
To make a valid marriage, the parties must be willing to contract, able to contract,
and have actually contracted.They must be willing to contract. Those persons,
therefore, who have no legal capacity in point of intellect, to make a contract,
cannot legally marry.

10.Distinctions between legitimation and Adoption

01.Adoption, properly speaking, refers only to persons who are strangers in
blood.
Legitimation, refers to persons of the same blood.
Where one acknowledges his illegitimate child and takes it into his family
and treats it as if it were legitimate, it is not properly an adoption but a
legitimation. (Blythe v. Ayrcs, 90 Cal. 532, 31 Pac. 915, 19 L R. A. 40. )
02. Legitimation means that a person who has not been born to married
parents acquires the status of legitimacy as a result of some act.
On the other hand, Adoption involves the extinction of the parental links

between the child and the biological parents and the creation of similar links
between the child and the adoptive parents.
03.Legitimation is a legal process by means of which a child born illegitimate
is made legitimate. Adoption is a process whereby a person assumes the
parenting for another and, in so doing, permanently transfers all rights and
responsibilities, along with filiations, from the biological parent or parents.
04. In case of legitimation, the parent will complete their marriage and
recognize their child. On the other hand in case of Adoption, The parent will
only recognize their child.
05. Marriage is essential pre-condition for a valid legitimation but in case of
adoption in English Private law marriage tie is not obligatory to take
adoption. A women or man can take adoption by completing judicial
formalities without marriage relationship.

11. Jurisdiction in case of Bangladesh perspective

In the context of private international law jurisdiction implies competency of
the domestic courts to hear actions and render decisions in matters invoking
foreign elements, in which they are called upon to do so, Usually the
question of jurisdiction can be classified into three broad categories, i.e..
relating to subject matter, pecuniary and local limits.
In suits having foreign elements the preliminary question is whether the
Bangladeshi courts have jurisdiction to try the suit. If the answer to this is in
the affirmative, then the next question relating to jurisdiction will arise in the
same way as they arise in an internal suit.
RULES AS TO FORUM
I. Pecuniary Jurisdiction
Sections 15 to 20 of the Code of Civil Procedure, 1908 regulate the forum for
the institution of suits. As per section 15, which refers to pecuniary
jurisdiction of the court, every suit shall be instituted in the court of lowest
grade competent to try it.
In a leading case of Fazle Karim vs. Naderuzzaman, 10 DLR 632 it was
held that, if a subordinate court and a superior court are vested with
concurrent jurisdiction, the case has to be instituted in the subordinate court.
Rules as to Nature of Suit
Based on the subject matter the suits may be divided into three classes;

(a) suits in respect of immovable property;

(b) suits for torts to person or movable property;
(c) suits of other kinds.
A. Suits of Immovable Property
Sections 16 to 18 of the CPC deal with suits relating to immovable property.
Six kinds of suits relating to immovable property that are enumerated in
section are:
(I) suits for recovery of immovable property;
(ii) suits for partition of immovable properly;
(iii) suits for foreclosure, sale or redemption in case of mortgage of or charge
upon immovable property;
(iv) suit for determination of any other right to interest in immovable
property:
(V) suits for tort to immovable property; and
(vi) suits for recovery of movable property actually under distraint and
attachment.
These suits must be filed within the local limits of whose jurisdiction the
properly is situated.
The explanation of these section makes it clear that the section was not
designed to deal with cases Involving a foreign land. The explanation says
that the property in this section means property situated in Bangladesh. This
section favours the institution of the suit at a place where the subject matter
or the property is situated. Suits for Wrongs to Person or
Movable Property
Section 19 of CPC is confined to the suit for compensation for wrongs to
persons or movables. 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 he instituted at the option of the plaintiff in either of the
said courts.

Residence
It Is considered a well established rule of Bangladeshi law that if the
defendant is resident within the jurisdiction the court will have the
jurisdiction to entertain the suit. The courts have deliberated on the question
of what will constitute residence in a large number of cases. In some cases
depending upon the circumstances even a very short stay is construed as
sufficient for residence to confer jurisdiction on the court.

In Kashinath v. Anant, the presence of the defendant at the time of the

institution of the suit was considered enough for the court to assume
jurisdiction. In this case the defendant had left the place where he had been
residing and was proceeding on a months leave to London. He reached
Bombay and was waiting there to leave for London, In the meanwhile the
plaintiff liled a suit and also had the process served on the defendant.
Tyabji J. held in this case that the residence is to be used in a broad sense.
As far as the courts jurisdiction is concerned, it is a settled law that if a
person has no settled abode or residence, then he is deemed to be resident
at the place where he is. He held that since the defendant had left his earlier
residence and had not established residence anywhere else he could he
deemed to he a residence of the place where he was at the time of the
institution of the suit.

The Code of Civil Procedure, 1908 contains the rules regarding. who can he
brought to trial in a forum in India. The Code provides for this in a negative
form. Le.. against whom action cannot be flied. It also contains the rules in
respect of the persons who can bring a suit against foreigners. They are
discussed here under two headings. (A) against whom action may not be Ii
led. (B) who may bring (he suit.

Submission to jurisdiction
Another method for the courts to assume jurisdiction in matters involving the
foreign elements is through submission to jurisdiction by the persons
concerned.
Against Whom Action May Not Be Filed
A. Jurisdictional Immunity
There is a general rule that a suit can be brought against any foreign
national. Notwithstanding this general condition there are certain persons
who have been granted immunity from this general rule Law of jurisdictional
immunity is codified in the Code of Civil Procedure, 1908 in Bangladesh
which entails certain modifications from the usual practice. The Code confers
jurisdictional immunity to:
(a) a ruler of a foreign State;
(h) any ambassador or enjoy of a foreign Slate;
(c) any High Commissioner of a Commonwealth country; and
(d) any such member of the staff of the foreign State or the staff or retinue of the

ambassador, envoy of a foreign Stale or of the High Commissioner of a

Commonwealth country as the central government may. by general or special order,
specify in this behalf.(sec-86)
These persons cannot be sued in any court in Bangladesh except with the consent
of the government certified in writing by a secretary to the government.
It has been held that the power of the government to grant sanctions for suits
against foreign States must he exercised in accordance with the principles of natural
justice . It is necessary that consent should have been obtained before the
institution of the suit. The jurisdictional immunity extends to all civil actions as well
as to execution proceedings. The jurisdictional immunity to the foreign sovereign
exists not merely in respect of his person but also in regard to his property. In this
respect no distinction is made between the public property and the private property
of the sovereign.
Foreign documents
According to the broader aspect of section 82 of the Evidence Act,1872 any court of
Bangladesh has the jurisdiction to presume the genuineness of foreign documents.

Definition of Foreign Judgement

Foreign Judgment means a judgment given by a court in a foreign state in a
civil matter, and includes a judgment for the payment of compensation or
damages to an injured party even though it may not have been given in a
civil matter.
According to section 2(6) of the Code of Civil Procedure,1908"foreign
judgment" means the judgment of a foreign Court.
Foreign Judgment means a judgment of a foreign court. . In other words, a
foreign judgment means adjudication by a foreign court upon a matter
before it. Thus judgments delivered by courts in England, France, Germany,
USA, etc. are foreign judgments.
According to Blacks Law Dictionary,
Foreign judgement means a decree,judgement or order of a court in a state,
country or judicial system different from that where the judgement or its
effect is at issue.
Convention on the recognition and enforcement of foreign
judgments in civil and commercial matters was adopted on1 february

1971 which evaluate and prescribe the proper recognition and enforcement
of foreign judgement across the world.
Bangladesh Government always adopts a very conservative approach
towards the enforcement of foreign judgment awards. Any bilateral
agreement only apply to the recognition and enforcement of judgments
made in proceedings started if it has been
ratified and enacted by notification in the gazette by the Bangladesh
Government. The common laws of Bangladesh have no direct operation on a
foreign judgment provided the foreign Court had jurisdiction to give the
judgment, the judgment will be conclusive in Bangladesh and enforceable,
unless it does not fulfill the criterions outlined by the law for
enforcement. However, the judgment creditor must first bring an action on
the foreign judgment in the local Courts. The judgment creditor cannot sue
upon the original cause of action unless the judgment is not enforceable or
entitled to recognition in Bangladesh.
Recognition
According to Blacks Law Dictionary,
Recognition means the confirmation that an act done by another person
was authorized . The formal admission that a person, entity or thing has a
particular status, especially a nations act in formally acknowledging the
existence of another nation or national government.
In private International law recognition means the acceptance or
confirmation of foreign laws to avoid conflicts in different legal matters.
Recognition is one of the most important criteria to solve domicile problems,
contractual obligation problems, legitimacy, jurisdiction problems etc. under
the ambit of private international law.