MOHAMMAD IRFAN

BA.LLB 4TH YEAR

ASSIGNMENT ON PRIVATE
INTERNATIONAL LAW
NATURE AND SCOPE OF PRIVATE INTERNATIONAL LAW

INTRODUCTION:1
Private international law is a body of rules used to resolve legal disputes between private
individuals who cross international boundaries. Where a dispute is between two parties in
different countries with different legal systems, private international law helps a court determine
which country's substantive law will be used to decide the matter. Although it is called
'international law' it is in fact a body of domestic law, and each country has its own set of private
international law. It is distinguished from public international law, which is the law which
governs relations between States (nations).
Although private international law is a domestic body of law, a lot of work has been done by
various international bodies to try to harmonize private international law around the world. This
harmonization effort is designed to minimize the impact of international legal disputes and in so
doing to promote international trade and commerce.

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 with the definition, regulation, and enforcement of
rights in situations where both the person in whom the right inheres and the person upon whom
the obligation rests are private citizens of different nations.
It is a set of rules and regulations that are established or agreed upon by citizens of different
nations who privately enter into a transaction and that will govern in the event of a dispute. In
this respect, private International Law differs from public international law, which is the set of
rules entered into by the governments of various countries that determine the rights 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.

1 (http://libguides.library.qut.edu.au/c.php?g=427886.(last visited on 8th

march,2016))

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.
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 themselves 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 themselves 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 whether a given case involving foreign element :
Shall be adjudicated upon by its own domestic laws or by laws of some other state;
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 the determination of the issue or as to the
exercise of jurisdiction by Indian or foreign courts.

APPLICATION OF PRIVATE INTERNATIONAL LAW:

Usually the cases that come for trial before the municipal courts are those whose elements are
internal. Thus, the usual cases that come for trial before Indian courts are those in which cause of
action arises in India, whose parties are Indians or domiciled in India and the other elements of
which are also of domestic character.
Occasionally, Indian courts are also seized of cases having foreign elements, i.e. one or the other
element of the suits is connected with some foreign country. It may happen that an Indian court is
called upon to try the question of succession to the property of a person who died in India
(domiciled in India or abroad), who has left movable and immovable properties both in India and
abroad ; to decide a petition of divorce presented by an Indian domiciled in India who had
married an English woman in England, or who had married a French woman in Berlin; or to
determine a petition presented by an English domiciled parent for the custody of his child who
came to India with its mother as a tourist ; or to try a suit for breach of contract filed by a New
York domiciled plaintiff against a defendant domiciled in England in respect of a contract
entered into in Paris for the supply of goods to India; to determine a claim of a Pakistani
domiciled plaintiff against an Indian domiciled defendant for a tort committed by the latter in
Pakistan while he was there on a short visit; or to try a suit of an Indian domiciled plaintiff
against an Indian resident in India for the recovery of a debt taken by the latter in Bangladesh
and payable there. It is evident that all these cases have some foreign element.

Sometimes, yet another question arises in a municipal court. It is the question of recognition of a
foreign judgment or enforcement of a foreign decree. Suppose, an Indian wife files a petition for
maintenance under s. 125 of the Indian Criminal Procedure Code in an Indian court against her
Indian husband domiciled in New York. The husband takes the plea that the marriage had already
been dissolved by a decree of a New York court and therefore the applicant's claim is not
maintainable2.
The question is whether the Indian court will recognize the New York decree and give effect to it.
Or, A obtains a money decree against B from a Dacca court and files an execution application of
that decree in an Indian court against the Indian situated assets of the judgment-debtor. The
question here is, can a foreign decree be executed in India? Or, P an English mother who had
married B an Indian domiciled person at a London registry office files an application in an Indian
court for the custody of her child who had been brought to India earlier by the father in defiance
of custody order of the London court committing the custody of the child to her. The question
before the court is whether an order of the foreign court will be given effect to in India, and if so
to what extent?
Thus in respect of cases having foreign element, a domestic court may be called upon to
determine the following three questions:
In what circumstances the court will assume jurisdiction over cases having foreign
elements; (Choice Of Jurisdiction)
If the court answers the first question in affirmative, then whether it will determine the
case entirely under the Indian law, or will it apply the appropriate foreign law; (Choice of
Law) and
In what circumstances it will recognize a foreign judgment or when it will order the
execution of a foreign decree. (Recognition and Enforcement of Foreign Award.)
So long as international relations are based on the sovereign equality of nations, the municipal
courts are not bound to recognize or to give effect to a foreign' law or foreign judgment.

2 Under s.125, Cr. P.C the obligation exists only in respect of wife. Children
(legitimate or Illegitimate) and parents, the form wife includes a divorced wife who
has not remarried.

They will be, strictly speaking within their rights and acting in accordance with the principle if
they decide every case in accordance with their domestic law, and ignore all foreign judgments.
The doctrine of sovereignly imposes no obligation on municipal courts to apply any other law.
But such are the facts of international life that hardly there is a country which claims to decide
cases having foreign elements entirely on the basis of its domestic law. Practically every country
of the world decides cases having foreign elements with reference to concerned foreign law.
Similarly, courts of most countries do accord recognition to foreign judgments. But there no
uniformity in the laws of the countries of the world as to in what circumstances municipal courts
assume jurisdiction over cases having foreign element or in what circumstances and in which
cases foreign law is to be applied or foreign judgments are to be given recognition.
It is the function and province of private international law to provide solution to these problems.
In the words of Cheshire private international law, then, is that part of law which comes into
play when the issue before the court affects some facts, events i or transaction that is so closely
connected with a foreign system of law as to necessitate recourse to that system.
In the words of Dicey and Morris, English private international law is that branch of law of
England which consists of rules which do not directly determine the rights and liabilities of
particular persons but which determines the limit of the jurisdiction to be exercised by the
English courts and also the choice of the body of law, whether domestic law of England or the
law of any foreign country by reference to which English courts are to determine different
matters brought before them for decision."3 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 though 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. The need for private international law arises because different countries have different
systems of law. Every country makes laws regarding marriage, matrimonial causes, adoption,
succession, contract, debts, torts and like matters. But, more often than not, laws of different
countries have different rules in respect of these matters. Sometimes even within a country laws
are different.

For instance, laws of different states of the United States differ from each other. Had it not been
so, there would not have been any need for private international law. Thus, if marriage means the
same thing all over the world and the rules of capacity and ceremonies of marriage are the same
in all countries, the question of conflict between the laws of two countries would not arise. And
if there is no conflict between the laws of different countries, there would be no need for private
international law.
Since the laws of different countries differ, it becomes necessary in every country that there
should be a branch of law which resolves these conflicts. It is this branch of law which is given
the name of private international law or conflict of laws. Broadly speaking, conflict of laws may
arise in the following two cases:
When the laws of two or more countries with which the case is connected differ from
each other.
The conflict may arise between the laws of the same country. This may happen:
o When laws of different states or provinces of a country differ from each other, just as
the laws of states of the U.S.A. or of the Soviet Union or of the provinces of Canada
differ from each other. This is a case of Conflict of territorial laws, Or
o When the laws of different communities in a country differ from each other. For
instance, in personal matters laws of Hindus, Muslims, Christians and Parsis differ
from each other in India. This is a case of conflict between the personal laws of
communities.
Whenever municipal courts are called upon to adjudicate upon a dispute, they render decisions
on the basis of their internal laws. Thus, an Indian court adjudicating upon a case it in accordance
with Indian law. But then the question is what do we mean - by internal law or Indian law?

From the point of view of private international law, the internal law of a country may be divided
under two heads.

 First, by internal law, or Indian law (i.e. internal law of India), we mean that body of
rules by which all matters relating to the rights and obligations of persons residing or
domiciled in India, and all disputes arising from contracts and transactions entered into in
India between such persons are decided. To distinguish it from the second type of law it
may be called "internal law". This internal law is obviously very important. Hoverer,
howsoever important this law may be, it has, from the point of view of private
international law, directly no significance.
Secondly, the second branch of Indian law is that which, though does not decide the
rights and obligations of parties, determines the territorial limit of Indian courts and lays
down as to whether a given case will be decided by reference to do the internal law of
India or by reference to relevant foreign law. This branch of law, which fixes the
territorial limits of the jurisdiction of Indian courts, comes into operation when a case
has some foreign elements. This is known as private international law.
In a very wide and broad sense Indian law means all rules of law which Indian courts apply
when they adjudicate upon a case, and in this sense it also include rules of private international
law, choice of law. In a under which the courts determine the questions of jurisdiction and
narrow sense, Indian laws all such rules between the rules of private international The distinction
country the broad narrow meaning of the internal law of a to forget must always be kept in view.
It is, therefore, evident that private international law is a branch of internal law of every country.
But private international is that branch of law by reference to which no adjudication can be
finally determined. Private International law, by its very nature, merely indicates the governing
law under which a cases is to be decided.
For Example, a court is called upon to determine the validity of marriage performed between an
Indian domiciled man and an 'English domiciled woman, the ceremonies of marriage were
performed in Paris. Private international law merely informs us that the question, as to capacity
to marriage is to be determined by the law of the domicile of the parties and the question of
performance of ceremonies is to be determined by the law of the place where the marriage was
solemnized.
On knowing this, they decide the case accordingly: if the question is of capacity court Fill the
matter will be determined by reference to Indian law or English law: whether or not, the court

will decide it by reference to French law. or, if the question is whether requisite ceremonies were
per-formed 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'.
In common parlance, foreign law means the law of a foreign country. But in private international
law foreign law has a technical meaning. 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. This may be the law of a country; or it may be the
law of a part of a country. For instance, a Quebec court may decide that the law applicable to the
case is the law of India or the law of Ontario. From the point of view of private international law,
for the court of Quebec, the law of Ontario is as much a foreign law as the law of India.

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 judgment, 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.

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:
Its subject matter always includes a foreign element;
One of its prime nature is the pursuit and application of the appropriate legal system and
Jurists have been more influential in this branch of the law than is typical with other legal
subjects.

REFERENCE:
BOOK:
1. Paras Diwan, Private International Law (Indian and English), (Deep & Deep
Publications, New Delhi, Fourth Revised and Enlarged Edition)
WEBSITES:
1. INTRODUCTION TO PRIVATE INTERNATIONAL LAW AVIALABLE AT :

https://www.linkedin.com/pulse/private-international-law-salauddin-saimum5989072056078135296 (Last Visited On 8th March, 2016)