This article is written by Prateek Mudgal, Faculty of Law, Aligarh Muslim University. In this article, I have dealt with Private International Rules and traditional rules associated with it. The article also deals with the laws regarding the recognition and enforcement of foreign judgements with reference to recent case laws and judgements of the Supreme Court.
In this era of globalisation, Private International Laws have become a necessity. The need for Private International Laws arises when there is a foreign geographical connection with the case, or there is some presence of the foreign element. This foreign element can be anything ranging from a contract between two parties of a different nationality to a tort committed with foreign influence. In such cases, the concept of Private International Laws is also called ‘Conflict of Laws’. In such cases, the court undertaking the case has to apply the principles of private international laws along with the domestic laws. Almost all the nations have well-codified laws and a system of conflict of laws. For understanding, let us see this way that the world is divided into different territorial units, with each unit being governed by its specific laws considering contracts, sales of goods, torts, etc. A person who belongs to one such territorial unit may travel to another unit and get engaged in the contract. When he comes back and an issue regarding contract arises, then the court with jurisdiction has to apply international private laws along with domestic laws.
Private International Laws
Private international laws can be loosely defined as a branch of national law, which is administered by the court of the particular nation or land in the cases which have the presence of any foreign element.
Private International Laws of the country help in the following way:
- They help in determining the laws, foreign or domestic, to be used in the case which arises out of private legal relationship along with the presence of some foreign material.
- It also helps in determining the maintainability of the case, telling about which courts have jurisdiction to settle the dispute.
Basis and Doctrine of Comity
The basis or Foundation of Private international laws arises out of the need of internationally compatible legislations. It has also been suggested that the Private International Laws are based on the Doctrine of Comity. The doctrine of comity refers to mutual understanding between various states, comity is nothing but the accepted rules which are mutually acceptable by different states and apply the same with cooperation, giving ease to each other.
One of the finest examples of recognition of comity is Section 11 of the Foreign Marriages Act, 1969. Through this Act, permission has been given to Indian diplomatic officers and consular officers to conduct marriages of persons (out of which should be an Indian Citizen) in a foreign land. It also provides that no such marriage which is prohibited in that particular country cannot be conducted. As per the Joint Committee of parliament, this rule was enacted to remove any problem of incoherency with International laws and comity of nations. Doing so serves another purpose, as desired by the parliament, marriages under this Act are more internationally acceptable.
Before we head onto recognition and enforcement of Foreign judgements it is important to understand the traditional rules of Private International Law.
- Lex Loci Celebrationis
This rule governs the formal validity of the marriage, the meaning of lex loci celebrationis is ‘Law of the place where the marriage takes place’.
- Lex Domicili
Lex Domicili governs the capacity and validity of the marriage of two parties. Lex domicili, which means the law of the domicile, at the time of death of a person also helps in the succession of movable property.
- Lex Situs
Lex situs help in governing the matters related to the transfer of movable property. Lex situs which means the law of the place, not only helps in the succession of the movable property but also helps in transfer of immovable property.
- Lex Fori
Lex Fori or Law of forum helps in the governance of the law of procedure.
- Lex Loci Deliciti
As the name suggests it means the law of the place where the damage occurred, this rule concerns the commission of a tort. This is one of the important traditional rules.
- Proper Law of Contract
Contractibility or say the contracts between different parties regarding different issues are concerned with applicable law also called proper law of contract.
Recognition and Enforcement of Foreign Judgements
Code of Civil Procedure 1908, talks about recognition of foreign judgements. It is present in Section 13 and Section 44A therefore it is necessary to analyse these sections. Apart from this, it is necessary to know that Article 101 of the Limitation Act, 1963 mentions that a suit on foreign judgement should be filed within 3 years from the judgement’s date.
Section 13, Code of Civil Procedure
This section deals with foreign judgements and mentions the instances where foreign judgements will not be conclusive. Foreign judgements shall be conclusive in various instances with the following exceptions:
- The foreign judgement will not be conclusive if the maintainability is questionable when the judgement is given by a court which does not have competent jurisdiction over the matter.
- The foreign judgement will not be conclusive in case, the decision of the court was not based on the merits of the case.
- If the case was undertaken and the decision was taken based either on the misinterpretation or incorrect view of international law then also the foreign judgement will not be conclusive.
- If it is found that proceedings did not consider the Indian laws applicable in that particular case, then the foreign judgement will not be considered conclusive.
- For a foreign judgement to be conclusive it should be made sure that judgement does not go against the spirit of Natural Justice. In such cases where the judgement goes against the Spirit of Natural Justice then the judgement will not be considered as conclusive.
- The two other cases, where the judgement will not be considered as conclusive, are first: if the judgement has been obtained by fraud, and second: if the judgement has been given breaches any of the present Indian laws.
Section 44A deals with the execution of judicial decrees of courts of reciprocating territories. Before we further delve into the section, it is important to understand about the reciprocating territories. Reciprocating territories are those countries or territories outside India which have been considered officially by a gazette as reciprocating territories for the purpose of this section i.e 44A. The courts of these territories whose decrease would be admissible are called Superior Courts. The section apart from defining the reciprocating territories also define the meaning of Decrees: which is referred to any judicial order or judgement by the superior courts, in very simple language.
The key points of section 44A are as follows:
- Whenever a certified copy of a decree from superior courts, established in the reciprocating territory, is filed in the district court then the same decree should be executed as if it had been passed by the district court.
- Along with a certified copy of the decree, a certificate which mentions the extent to which satisfaction or adjustment of the decree has been given. The certificate should be a conclusive proof which mentions adjustment and satisfaction.
- While executing decrees as per the mentioned procedure the court must not let it violate the clauses mentioned under Section 13 of Code of Civil Procedure, 1908.
Supreme Court Judgement and Arbitration Conciliation Act.
Judgements of the Supreme Courts and High courts play an important role in giving a clear finishing and proper interpretation of various laws. Similarly in this case too the supreme court has given certain quality judgements regarding the issue of the recognition and enforcement of foreign judgements. I will discuss one such important issue enunciated by the Supreme Court in one of its judgements.
Relying on the ratio of the judgement of the case of International Woollen Mills vs Standard Wool (UK) (2001 5 SCC 265) the Supreme Court in one of the recent judgements has mentioned Section 13 Civil Procedure Code and Section 44A Civil Procedure Code while deciding the case of Alcon Electronics Private Limited vs Celem SA and another (2017 2 SCC 253). In this case, the Supreme Court ruled out that the judgement of an English Court, which was being enforced in India, is a judgement which is wholly based on the merit of the cases. The Supreme Court noted down that in order to respect the principles of comity of the nations, which is the foundation of Private International Law, the court must admit/accept the judgement of the English court which has decided the matter on the basis of merit.
Even if the decision is an interlocutory order the judgement shall be given due weightage, the only exception where such judgements cannot be accepted is when the judgements are in violation of Section 13 of Civil Procedure Code. Therefore on this basis, the court considered the judgement to be conclusive. Mentioning section 44A of the Civil Procedure Code, the court also mentioned that execution of decrees of reciprocating territories is permissible and England is a reciprocating territory, which means that decrees passed by English Courts are admissible according to section 44A (if decrees do not violate section 13 of Civil Procedure Code).
Arbitration and Conciliation Act
Arbitration and Conciliation Act is based on the UNCITRAL model, this model actually provides the law-makers of various nations with a pattern using which the law-makers can legislate various laws regarding arbitration. Arbitration and Conciliation Act of 1986 was a much-needed act considering the amount of foreign direct investment in India. Due to the increase of foreign direct investment, international commercial arbitration has shifted its focus to India-focused arbitration. With this change providing foreign awards in the cases and judgements has become the subject of comprehensive judgements of the Supreme Court. The law-makers in India have excellently drafted the act and have taken due care. This is reflected in Part 2 of the Arbitration and Conciliation Act, where the act has included New York Convention Awards in Chapter 1 of Part 2, and apart from New York Convention the Part 2 in its Chapter 2 has also included Geneva Convention Awards.
Private International law has become a necessity in this era of Globalisation. Nations are connected with one another. It is now evident how nations work for economic prosperity through economic cooperation. In such pursuit of material wealth, it becomes very obvious that there will be clashes between parties engaging in the contract, not only in the contract but also other legal issues may arise. For such issues, it becomes necessary to take help of Private international law.
As discussed in various statutes of Indian Laws have taken into consideration the need for the comity of the nations, which forms the foundation basis of Private International Laws. Various countries follow the traditional rule, whereas few members of the European Union follow Unified Private International Laws. there are various benefits that arise out of the use of Unified Private International Laws. The law-makers and legislators should focus on rectifying the discrepancies and the incoherency within the domestic law, in order to pave the way for a much larger system of the Unified Private International Laws.
- Foreign Marriages Act, 1969
- The Limitation Act, 1963
- Arbitration and Conciliation Act of 1986
- International Woollen Mills vs Standard Wool (UK) (2001 5 SCC 265)
- Alcon Electronics Private Limited vs Celem SA and another (2017 2 SCC 253)
Unification of Private International Law, available at https://www.lawctopus.com/academike/unification-private-international-law/#:~:text=Traditional%20rules%20of%20Private%20International%20Law&text=Essential%20validity%20of%20marriage%20or,by%20Lex%20domicli%20of%20parties.&text=Succession%20to%20immovable%20property%20is,fori%20i.e.%20law%20of%20forum.
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