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Title: Ehsan Kabir Solicitor | Choice of Jurisdiction

1
CHOICE OF JURISDICTION

Ehsan Kabir Solicitor

2
NATURE SCOPE

Private international law /conflict of laws is
that part of law which comes into operation
whenever the court is faced with a dispute that
involves an foreign element.
Foreign element means any fact relevant to the
issues involved in the proceedings which has a
connection with a territorial unit other than the
territorial unit where the court is dealing with
the proceedings.
Examples of foreign element
Parties maybe citizens of a foreign country or
Domiciled in a foreign country

Dispute may relate to a contract between an
Indian a party living abroad or
Suit may relate to a tort committed by an Indian
outside India.
Q. What will be applicable if there is a breach
of contract between 2 foreigners made in India
to be performed in India?
Forum shopping the foundation behind private
international law is to do justice. It would be
unjust if a dispute with a French element is
decided by an Indian court applying only Indian
laws. The result would have been different had a
French court decided it applying French laws. If
Indian courts apply only Indian laws French
courts apply only French laws they are
different, it may tempt a party to file suit in
that court where he expects a favorable result.

Rules under Private International Law
Does the Indian court have jurisdiction?
Is there a foreign judgment on the point, if
there is, is it to be recognized applied?
Which system of law is to be chosen?
If the court does not have jurisdiction it will
not go into the matter.
If there is a foreign judgement, it is for the
Indian court to decide whether it should be
recognized enforced.
If it decides to recognize enforce a foreign
judgement, no question of Indian law choosing a
system of law arises.

5
HISTORICAL DEVELOPMENT

All the conditions essential for the development
of private international law was present during
the Roman empire. Each province of the Roman
empire had its own law. To the Roman citizens the
Roman law applied the provincial law applied to
the citizens of the provinces.
Disputes between citizens of the provinces
Roman citizens were decided by the Roman
administrators called praetors by interpreting
both the Roman law the laws customs of the
provinces. Yet the Corpus Juris Civilis failed to
incorporate application of foreign law.
Jus gentium- law of nations

During the 16th 17th century, England had a
flourishing overseas trade that had reached the
stage wherein it was said that the sun never sets
in the British empire. Although the situation was
ripe for the English courts to entertain suits
having a foreign element yet they were reluctant
to do so. In Robinson v. Bland, it was observed
that the general rule is that where the contract
is made not the place were the action is
brought is to be considered in enforcing the
contract.

During the Mughal rule in India, it was the
personal laws of the parties that applied.
The Special Marriage Act 1954 the Indian
Succession Act 1925 regulated the inter community
matrimonial succession matters. Thus in most
potential areas of conflict of communal laws, the
conflict was successfully avoided.
During the British rule, the rules of Indian
private international law was basically based ob
the English law.

8
CHOICE OF JURISDICTION

Forum non conveniens forum/ court not agreeing,
its a common law legal doctrine whereby courts
may refuse to take jurisdiction over matters
where there is more appropriate forum available
to the parties. Eg., a question may arise in a
situation where an Indian court has jurisdiction
under CPC but will decline to exercise
jurisdiction if parties have in their contract
agreed that disputes will be resolved by
arbitration or the suit must be filed in a
foreign court.

In England, excepting enemy alien, anyone can
file a suit be they British subjects or
foreigners, body corporates incorporated inside
or outside England.
Who is an enemy alien does not depend on the
nationality of the person but by the place where
he is residing or carries on business in a
country at war with England. If an enemy alien
had filed a suit before the outbreak of war, he
cannot appeal as his right is suspended.
An alien enemy can be sued can defend himself
can file an appeal if an adverse order has been
passed against him.

In India Sec 83 of CPC regulates the position
regarding jurisdiction for aliens. Alien friends
alien enemies residing in India with the
permission of the Central Govt. can file suits
like any Indian citizen but alien enemies
residing in India without such permission or
alien enemies residing outside cannot file a
suit. An alien enemy can defend a suit. If the
plaintiff wasnt an enemy alien when the suit was
instituted but subsequently became one, his suit
is maintainable.

11
JURISDICTION UNDER THE BRUSSELS CONVENTION

Jurisdiction refers to the question as to whether
a court will hear determine an issue upon which
its decision is sought.
The rules on jurisdiction under the Brussels
Convention are
The matter is within the scope of the Convention
(civil commercial matter)
Defendant is domiciled in an European Community
State( ie Austria, Belgium, France, Germany,
Ireland, Italy, Portugal, Spain, UK etc)

The six original members of the European Economic
Community(Belgium, Germany, France, Italy,
Luxembourg, Netherlands) entered into a
Convention on Jurisdiction Enforcement of
Judgments in Civil Commercial Matters in 1968
(Brussels Convention) which came into force in
1973 Protocols on Interpretation in 1971 which
came into force in 1971.
The purpose is to provide for free circulation of
judgments throughout the community inspiring
business confidence. To achieve this aim there
had to harmonization of the law of jurisdiction
throughout the Community.

1st there was the United Kingdom, Danish Irish
Accession Convention of 1978
2ndly, Greek Accession Convention of 1982
3rdly, Spanish Portuguese Accession Convention
of 1989
4thly, Austrian, Finnish Swedish Accession
Convention of 1996
Contracting States are those countries of Europe
that has parties to the Brussels Convention.

Referrals to the Court of Justice the Protocols
of 1971 authorizes the Court of Justice of the
European Communities to give a rule on the
interpretation of the Brussels Convention 4
Accession Conventions on the matters being
referred to them by the national court.
The protocol contains 2 limitations as to when a
national court can approach the Court of Justice
Preliminary ruling procedure
Courts which can request a ruling from the Court
of Justice

English courts have to follow the principles laid
down by the Court of Justice in any relevant
decision
It must follow the techniques of interpretation
employed by the Court of Justice, the meaning of
a provision must be understood in the light of
its purpose not by its literal meaning.
Must follow the general principles of
interpretation in relation to the Convention laid
down by the Court of Justice.

3. Must follow more specific principle where
the Court of Justice has identified the purpose
underlying a particular provision has laid down
policy considerations to be taken into account
whether a particular provision is to be
interpreted widely or narrowly.
The 1st of these principles relates to the
determination of whose system of law is to be
applied in order to define the words concepts
in the Convention.
Where a community meaning is given the Court of
Justice will define the concept, giving it an
independent meaning. It then has a common meaning
throughout the Contracting States.

A reference to national law means that the Court
of Justice is not defining the matter, it is
saying that the concept means what the court 1st
understood from the matter under national law.
The objectives of the Convention require that it
should be given an uniform application throughout
the European Community so it is settled law that
the Court of Justice will interpret the Brussels
Convention autonomously.

The 2nd general principle relates to the method
of deciding upon what the community meaning
should be. The Court of Justice when defining
concepts considers 2 factors
1st it looks at the objectives the scheme of
the Convention. According to its preamble the
ultimate objective of the Convention is to
simplify the formalities on recognition
enforcement of judgments within the community.
2ndly with some concepts the Court of Justice has
referred to the general principles which has its
roots in

in the body of national laws. A Community
meaning doesnt ignore national laws reference
to bilateral treaties between Contracting States
which have been made before the Convention may
help in ascertaining shared principles.

The matter must be within the scope of the
Convention when does the Brussels Convention
apply?
The preamble indicates that the Convention is
only concerned with the Contracting States. It
will not apply where a dispute involves no
foreign element or where the foreign element
involves another part of UK.
The Brussels Convention will not affect other
conventions on jurisdiction/enforcement/recognitio
n which Contracting States have in the past or
will in the future enter into.
The convention doesnt apply in proceedings in
Contracting States concerning recognition/enforcem
ent of judgments given in non-Contracting States.

Civil commercial matters - the Convention
shall apply only in civil or commercial matters.
No definition is given of civil commercial
matters, although Art. 1 says that it doesnt
include revenue, customs or administrative
matters.
The following are excluded from the Convention
Status/legal capacity of natural persons, rights
in property arising out of matrimonial
relationship, will succession.
Bankruptcy, proceedings relating to winding up of
insolvent companies.
arbitration

Whether the defendant is domiciled in a
Contracting State
Where the defendant is domiciled in a Contracting
State the bases of jurisdiction under the
Convention will apply
Where the defendant is not domiciled in a
Contracting State, the traditional rules of
jurisdiction of the court will apply
There are exceptions relating to bases of
jurisdiction under Art. 16 of the Convention

23
Brussels ConventionTitle II Jurisdiction

Where the defendant is domiciled in a Contracting
State
Art. 2 in Sec. 1 states that a defendant
domiciled in a Contracting State is subject to
the jurisdiction of the courts of that state.
If the defendant is to be sued in the courts of
the Contracting State other than that of his
domicile, Art. 3 provides that this can be done
only by following rules in Sec. 2 to 6. this
prevents national courts from using their
traditional rules on jurisdiction against a
defendant who is domiciled in a Contracting State.

Where the defendant is not domiciled in a
Contracting State
Art. 4 states that jurisdiction in the courts of
each Contracting State shall subject to Art. 16,
be determined by the law of that state. Eg an
Englishman wants to sue a Californian
domiciliary, in England, he would have to do so
under the traditional English rules of
jurisdiction.

Sec 2 6 (continuation)
Sec. 2 - Special Jurisdiction
Art. 5 a person domiciled in a Contracting
State may be sued in another Contracting State
In matters relating to a contract, in the courts
for the place of performance of the obligation in
question
In matters relating to maintenance in the courts
for the place where the maintenance creditor is
domiciled
In matters relating to tort, in the courts for
the place where the harmful event occurred
Dispute arising out of operation of branch or
agency, in the courts for the place in which the
branch or agency is situated.

Trustee or beneficiary of a trust, in the courts
of the Contracting State in which the trust is
domiciled.
Art. 6- a person domiciled in a Contracting State
may also be sued
Where he is one of a number of defendants, in the
courts for the place where any one of them is
domiciled
As a third party in an action on a
warranty/guarantee in the court which took hold
of the original proceedings

On a counterclaim arising from the same contract
on which the original claim was based, in the
court in which the original claim is pending
Sec. 3 Jurisdiction in matters relating to
insurance
Art. 7- in matters relating to insurance,
jurisdiction shall be determined by this Section.
Art. 8 an insurer domiciled in a Contracting
State maybe sued
In the courts of the States where he is
domiciled, or

In another Contracting State, in the courts for
the place where the policy-holder is domiciled,
or
If he is a co-insurer, in the courts of a
Contracting State in which proceedings are
brought against the leading insurer.
Art. 9 in respect of liability
insurance/insurance of immovable property, the
insurer may be sued in the courts for the place
where the harmful event occurred.

Sec. 4 Jurisdiction over consumer contracts
Art. 13
A contract for the sale of goods on instalment
credit terms or
A contract for a loan repayable by instalment or
for any form of credit, made to finance the sale
of goods or
Any other contract for the supply of goods or a
contract for the supply of services
In the State of the consumers domicile the
conclusion of the contract was preceded by a
specific invitation addressed to him the
consumer took in that State the necessary steps
for the conclusion of the contract.

Where a consumer enters into a contract with a
party who is not domiciled in a Contracting State
but has a branch or agency in one of the
Contracting State, that party shall, in disputes
arising out of the operations of the branch or
agency, be deemed to be domiciled in that State.
Art. 14 A consumer may bring proceedings
against the other party to a contract either in
the courts of the Contracting State in which that
party is domiciled or in the courts of the
Contracting State in which he himself is
domiciled.

Proceedings maybe brought against a consumer
by the other party to the contract only in the
courts of the Contracting State in which the
consumer is domiciled.
Sec. 5 Exclusive jurisdiction
Art. 16- the following courts shall have
exclusive jurisdiction regardless of domicile
In proceedings which have as their object rights
in rem in immovable property, the courts of the
Contracting State in which the property is
situated.

In proceedings which have as their object the
validity of the constitution, nullity or
dissolution of companies/other legal
persons/associations of legal or natural persons,
the courts of the Constructing State in which the
company/legal person/association has its seat.
Sec. 6 Prorogation of jurisdiction
Art. 17 If the parties, one or more of whom is
domiciled in a Contracting State, have agreed in
writing that a court/courts of a Contracting
State are to have jurisdiction to settle any
dispute which have/may arise in connection with a
particular legal relationship, that court/courts
shall have exclusive jurisdiction.

33
Title III Recognition Enforcement

Art. 25 for the purpose of the Brussels
Convention, judgment means any judgment given
by a court of a Contracting State.
Sec. 1 Recognition
Art. 26
A judgment given in a Contracting State shall be
recognized in the other Contracting States
without any special procedures being required.
Any interested party who raises the recognition
of a judgment as the principal issue in a
dispute, may as per the procedures provided in
Sec. 2 3 of this Title, apply for a decision
that a judgment be recognized.

Art. 27 a judgment shall not be recognized
If such recognition is contrary to public policy
in the State in which recognition is sought
Where it was given in default of appearance, if
the defendant was not duly served with the
document which instituted the proceedings
If the court of the State in which the judgment
was given, in order to arrive at its judgment,
has decided a preliminary question concerning the
status/legal capacity of natural persons, rights
in property arising out of matrimonial
relationship, wills/ succession in a way that
conflicts with a rule of private international
law of the State in which the recognition is
sought.

Section 2 Enforcement
Art. 31 a judgment given in a Contracting State
enforceable in that State shall be enforced in
another Contracting State when, on the
application of any interested party, the order
for its enforcement has been issued there.
Sec. 3
Art. 46 a party seeking recognition/enforcement
of a judgment shall produce
A copy of the judgment which establishes its
authenticity

In case of a judgment given in default, the
original/certified copy of the document which
establishes that the party in default was served
with the document instituting the proceedings.

37
CHOICE OF LAWDOCTRINE OF RENVOI

Renvoi is a French word meaning send back/ return
unopened. There are 2 types of renvoi single
double
Single renvoi is called remission in English
where legal systems of two countries are involved
but if three countries legal systems are
involved then its called transmission.
Once it is decided that a court has jurisdiction
what choice of law are applicable, the judge
will apply the chosen law chosen if the chose law
is English law, the judge is required to give
effect to English internal law.eg., where a
person dies intestate domiciled in England, here
his property will be distributed by following the
English internal laws relating to property. There
is no requirement to give regard to private
international law.

But if the application of law is that of a
foreign country the situation becomes complex.
The difficulty is to determine what is meant by
applicable law?eg., X, a British subject, dies
interstate, domiciled in Italy an English court
is required to decided how his movable property
in England are to be distributed?
According to the English law for choice of law
regarding intestate succession to movable
property is governed by the law of domicile of
the person concerned ie., in this case Italian
law as being the law of Xs domicile at the time
of death. But according to the Italian law it
must be referred to the law of England as being
the law of his nationality.

Now the question is what is the meaning of
Italian law? Does it mean Italian internal law
regulating an intestates property or does it
mean the whole of Italian law including private
international law as recognized by Italy.
If the former is correct, a further difficulty
is caused by the difference between English
Italian laws
if we refer to the 2nd meaning ie Italian
private international law we find the issue
referred back to English law.
The question is whether we are to ignore the
divergent Italian law or to accept the reference
back that it make to England? If we accept the
reference back, are we stop finally at that point
to distribute Xs property according to the
English internal laws?

40
Continuing with the eg.,

When such a situation is faced, owing to the
difference in the private international laws of
the two countries, there are 3 possible solution
Take the law of Italy to mean the internal laws
of Italy or
Decide the case on the assumption that the
doctrine of single renvoi is recognized by
English law or
Take the law of Italy to mean the law which an
Italian judge would administer if he were faced
with the matter ie the doctrine of double renvoi.

Apply internal laws only- the 1st solution which
is generally correct is to read the expression
law of a country as meaning only the internal
laws of that country. If for eg., a man
voluntarily abandons England acquires a
domicile in Italy where he permanently resides
until his death, the natural inference is that he
willingly submits himself to the internal law of
that country where he has taken domicile.

Doctrine of single renvoi- the 2nd solution is
apply the doctrine of single renvoi. For eg., if
a judge in country A as per his countrys law
has to refer to the law of country B, but the law
of country B refers back such a case to the law
of country A, then the judge in A must apply the
internal laws of country A. For eg., X, a British
national, dies intestate in Italy an English
court is required to decide how his movables in
England are to be distributed. The English court
is directed by its own private international law
to refer this question of distribution to Italian
law as being the law of the deceaseds domicile.
So when it refers to the

Italian law on the area of distribution of
movable property, the English court finds that
the Italian law prefers the law of the deceaseds
nationality not of his domicile, if for
instance an Italian court had been hearing the
matter in the first instance it would have
resorted to the law of England. Thus the English
court find itself referred back to English law as
because it is the law of Xs nationality. Thus
there is a renvoi/remission to English law.
So when the court accepts this remission
distributes the property as per English law, it
would be true to say that the doctrine of renvoi
is a part of English law the Italian law has
been allowed, although not to give a direct
solution

to the problem but to indicate as to what legal
system shall furnish the final solution.
Forgos case Forgo, a Bavarian, died intestate
in France, where he had lived since the age of
5yrs. The question before the French court was
whether his movable property in France should be
distributed according to the internal law of
France or Bavaria. Collateral relatives were
entitles to succeed by Bavarian law, but under
French law the property passed to the French
govt., not to the collaterals. French private
international law referred the matter to Bavarian
law but Bavarian private international law
referred it to French law. So the court of France
accepted the remission applied the succession
law of France.

Doctrine of double/total renvoi/foreign court
theory- this solution demands that an English
judge, who is required by his own law to the
legal system of a foreign country, must apply
whatever the court in that foreign country would
apply if for instance it were hearing the case.
Eg.,an English judge is imagining how a Belgian
judge is going to decide the following matter a
British national dies domiciled in Belgium,
leaving assets in England. A Belgian judge
dealing with this matter would be required by the
Belgian private international law to refer to the
English law but then he would find that the case
is referred back to him by the English law.

Now the Belgian judge might accept the remission
apply own internal laws of Belgium or he might
reject the remission apply the English law.
What ever the Belgian judge would do would
determine the decision of the English judge.
The English judge also has to see whether the
doctrine of single renvoi is recognized by the
particular foreign countrys law to which he is
referred. For instance this doctrine of single
renvoi is repudiated in Italy but acceptable in
France. So if the issue in England court is about
the validity of a will made by a British subject

domiciled in Italy, the English judge will
reason as follows
An Italian judge would refer the matter to
English law. As being the national law of the
person concerned. But the English law remits the
question back to Italian law as being the law of
his domicile. The Italian law doesnt accept this
remission, as it repudiates single renvoi.
Therefore an Italian judge would apply English
internal law. the English judge will do the same
ie., apply English law as he has understood the
position that an Italian judge would do if the
Italian judge has been faced with the matter.
Yet the position in France would be completely
opposite result as a court in France would accept
the remission from England would ultimately
apply French internal laws because French law
accepts single renvoi doctrine.

Objections to the doctrine- the doctrine of
double revoi is mainly applicable in England, N.
America Australia. The main point of objection
is that the doctrine objectionable in principle,
is based on unconvincing authority cannot be
said to represent the general rule of England
law.
The total renvoi doctrine does not ensure uniform
decisions those who favour renvoi desires that
the same decision shall be given on the same
disputed facts irrespective of the country in
which the case is heard. In truth, the doctrine
of renvoi will produce this uniformity only if it
is recognized in one of the countries concerned
rejected in the other. Eg., the law of the
domicile, to which the English judge is referred,
requires that the case is to be

decided exactly as the English court would
decide it, what is the judge to do on finding
that by English law his decision is to be exactly
what it would be in the country of the domicile?
When will the process of passing the ball from
one judge to another stop? There is nothing
apparent as to how this circle can be broken.
Uniformity will be attained if the law of the
domicile repudiates the doctrine of total renvoi,
ie., if instead of seeking guidance from a
foreign judge, it provided that the national
English law shall govern the matter, for in this
case English internal law will apply harmony
will prevail.

It seems difficult to justify that a particular
doctrine will work (total renvoi doctrine) only
if the other country rejects it. The fact is that
uniformity of decisions is unattainable on any
principle/doctrine with regard to matters that
are determined in some countries by the law of
nationality in others by the law of the
domicile.
The doctrine of double renvoi signifies the
virtual surrender of the English rules for choice
of law- if one removes the technicality of this
doctrine, it is nothing but a substitution of the
foreign law for the English choice of law. Eg.,
British subject who dies intestate domiciled in
Italy, the English law selects the law of Italy
as the governing law but the Italian law selects
the English law.

So when the English judge refers to what the
Italian judge would have done, the English judge
applies the internal rules of England thus
shows preference for the Italian law. The English
law is dropped as it does not meet with the
approval of the law-makers of Italy. Moreover the
application of foreign countrys law maybe
unacceptable for public policy issues in England.
The English principle, for instance, that an
intestates movables shall be distributed
according to the law of his last domicile is
founded on the reasoning that rights of
succession should depend on the law of the
country where the deceased established his
permanent home.

Thus if the reference to the law of his domicile
is means a reference to the internal laws
including private international law of that
country, then not only is the policy of English
law reversed but the probable intention of the
person concerned(deceased person) is ignored
flouted. He may for instance have refrained from
making a will having been content with the local
laws of intestacy believing that law would be
applicable in the event of his death, but it does
not.

Total renvoi is difficult to apply- this doctrine
makes the English judge as ascertain as a fact
the precise decision that the foreign would give.
This has 2 difficulties 1st he must ascertain
what view prevails in the foreign country with
regard to the doctrine of single renvoi. 2ndly,
where the foreign law (which the English judge
refers) selects the national law of the person
concerned, the English judge must ascertain what
is meant by national law.
The chosen law that emerges from an application
of the doctrine depends on whether single renvoi
is recognized by the law of the domicile. If the
court of the domicile would

accept the remission made to it by English law,
it would then determine the case according to its
own internal laws otherwise it would apply the
internal law of England. This dependence of the
rights of the parties on the attitude of the law
of the domicile towards the renvoi doctrine is a
cause of acute embarrassment as it becomes
difficult to obtain reliable information/suggestio
ns because of lack of uniformity of expert
witnesses on in the process.

Next difficulty that may arise is to ascribe a
definite meaning to the expression national
law. When the private international law of a
country to which the English judge is to refer,
selects the nationality of a person as the
concerning factor, it becomes necessary to
correlate the national law with internal law by
which the issue before the court may be
determined. This is a simple matter when the
person is a national of some country like Sweden,
which has a unitary system of territorial law.
There is a single body of internal laws
applicable throughout the territory of Sweden.
The position is different where the country of
nationality if a country like India/Britain(one
law in England one in Scotland) where there
are several systems of territorial law.

56
Facts

Re Okeefe case the question before the English
court was the way in which the movables of X, a
spinster who dies intestate, were to be
distributed. Xs father was born in 1835 in
Ireland but at the age of 22 he went to India
except for various stays in Europe lived there
throughout his life died in Calcutta in 1885. X
was born in India in 1860 from 1867 to 1890 she
lived in various places in England, France
Spain but in 1890 she settled down in Naples
resided there until her death 47yrs later in
1937. About the year 1878 she had made a short
tour in Ireland with her father. She never lost
her British nationality but was domiciled in
Italy.

The English court as per the Private
International law of England selected the law of
her domicile. But had an Italian judge been
hearing the matter, he would have referred to her
law of the country of which she was a national
ie., Britain. Italian judge would have rejected
any remission made to him by the English court as
single renvoi is not recognized in Italy. Now
which system of internal law out of those having
some relation to X, would be regarded by the
Italian court as applicable? Whether it was the
law of England/Ireland/India? Which of these
systems are to be selected by the court of
Italy(if Italian judge would have been hearing
the matter)?

The expert witnesses agreed that the choice of
law would be the law of the country to which X
belonged at the time of her death. She
certainly didnt belong to England for applying
English internal law, for she had spend not much
time in England. She might perhaps by reason of
her birth in Calcutta, be regarded as belonging
to India, but she had not been in India for
70yrs. It can also be believed that she belonged
to Italy as she had continuously spend the last
47yrs of her life in Italy. But the judge
reverted to Xs domicile of origin held that
she belonged to Ireland because that was the
country where her father was domiciled at the
time of her (Xs) birth although she was born in
India.

In the result therefore, the succession to her
property was governed by the law of her country
which she had never entered except during one
short visit sixty yrs before her death Ireland
was not even a separate political unit until
62yrs after her death she was ignorant of the
succession laws of Ireland. The reasoning on
which such a remarkable result is reached are
interesting.
1st the judge is required by the English law to
the law of the domicile, then he allows the law
of the domicile to

be supplanted by the law of the nationality
then upon discovering that the law of the
nationality is meaningless, the judge throws
himself back on the domicile of origin thus
determined the rights of the parties by the legal
system which is neither the national law nor the
law of the domicile as required by the English
private internal law. So the judgment seems to be
superfluous.

Re Ross case- A testatrix, a British subject, who
was domiciled in Italy, both in the English
Italian sense, disposed of her property by a will
which excluded her son from the list of
beneficiaries. This exclusion was justifiable by
English internal law, but contrary to Italian
internal law which required that ½ of the
property should go to the son as his legitima
portion (rightful owner). She left land in Italy
movable property both in England Italy.

The Judge with regard to the movables that in
accordance with the English law the claim of the
son to his legitima portio must be determined by
Italian law as being the law of the testatrix's
domicile. He then considered the question what
is meant by the law of domicile? Does it refer to
municipal law or does it include its laws of
private international law?
In the conclusion the judge applied English
internal law disallowed the claim of the son.
This is the conclusion that an Italian judge
would have reached. Italian judge would have
referred to the law of the nationality would
have rejected the remission made to him by
English law. As regards the land(immovable
property), the English law referred to Italian
law as the law where the land is situated.

An expert evidence showed that if an Italian
court would have faced the matter, he would again
turn to the law of the nationality ie England
would adopt English internal laws applicable to
immovable property situated in England
belonging to an English testator. So the English
judge applied the same reasoning (which an
Italian judge would have done if he would have
faced the matter) the claim of the son failed.

Re Askew case an English marriage settlement
made on the marriage of X, a British subject
domiciled in England, to his 1st wife, Y, it was
provided that X, if he married again, might
revoke in part the settled trust make a new
appointment to the children of such subsequent
marriage. Some time before 1911, X, who had long
being separated from Y, acquired a German
domicile. In 1911, having obtained a divorce from
a competent German court, he married Z in Berlin.
Some time before the divorce a daughter had been
born to X Z in Switzerland. In 1913, X
exercised his power of revocation made a new
appointment in the trust in favour of his
daughter.

If we keep aside the laws of private
international law, then when the English court
faces an issue relating to the validity of this
appointment in the trust in favour of the
daughter, its clear that the daughter wasnt a
child of subsequent marriage, for the only
marriage subsisting at the time of her birth was
that between X Y. So the daughter cant possibly
be a child of a non-existing marriage.

The English judge insisted that the validity of
the appointment dependent on whether daughter
was legitimate. The daughter could not claim
legitimacy under the Legitimacy Act 1926 since at
the time of her birth her father was married to
someone other than her mother. By English private
international law the daughters legitimacy
depended on whether German law, being that of her
fathers domicile both at the time of her birth
also at the time of her marriage to Z, recognized
legitimation by marriage. In such a case, German
private international law referred the law to the
law of the fathers nationality. Single renvoi
was accepted in Germany.

If for instance a German court was facing the
matter, it would 1st refer to English law, then
on finding a remission made by English law to the
law of the domicile, would accept this apply
German internal law. In other words, if the
English reference to the law of the domicile
meant a reference to the private international
laws of the domicile (ie Germany), the daughter
would be legitimate. So the judge applied the
private international law of Germany decided in
favour of legitimacy of the daughter the
validity of the appointment in her favour in the
trust.

68
Scope of Renvoi Applicability Inapplicable of
Renvoi

Contracts -Renvoi doctrine is not applicable to
contracts. Its accepted that no sane businessman
or his lawyer would choose the application of
renvoi. This objection has been confirmed by the
Rome Convention on the Law Applicable to
Contractual Obligations.
Validity of bequests- where the essential
validity of a will/intestate succession to
movables is determinable by the law of a foreign
country, the view that would be taken of the
matter of the foreign judge, if he were hearing
the case, must be adopted.Applicable

Claims to foreign movables applicable- issues
relating to right to foreign movables, the court
will apply private international law of the
country where the movables are situated.
Family issues applicable- relating to family
issues, clear authority for application of renvoi
is present specially relating to recognition of
legitimation by subsequent marriage.

70
MODULE IV DOMICILE

It is universally accepted that questions
affecting personal status of a human should be
governed constantly by one the same law
irrespective of where he may happen to be or
where facts giving rise to the question may have
occurred.
Now the question is what is the scope of this
personal law should its criterion be domicile
or nationality? In England its settled that
questions affecting status (relating to family
relations property) are determined by the law
of domicile of the person concerned, eg.,
essential validity of marriage, effect of
marriage on the property rights of husband
wife, jurisdiction in divorce, wills relating to
movable property, intestate succession to movable
property inheritance by a dependant.

The concept of domicile is not uniform throughout
the world. There are 2 main classes of domicile
domicile of origin that is automatically acquired
by birth , that is the domicile of his father(if
legitimate)/mother(if illegitimate).
Domicile of choice which every person of full age
is free to acquire in substitution for that which
he at present possesses. The acquisition of
domicile by choice requires not only residence in
a territory but also an intention by the person
concerned to remain there permanently.

There are 5 general rules regarding domicile
It is a settled principle that nobody shall be
without a domicile, in order to make this
effective the law assigns what is called a
domicile of origin to every person at his birth,
namely to a legitimate child the domicile of the
father, to an illegitimate child the domicile of
the mother to a foundling the place where he
his found. This domicile of origin prevails until
a new domicile has been acquired. So if a person
leaves the country of his origin with an
intention of never returning to it again, still
his domicile of origin

adheres to him until he actually settles with
the requisite intention in some other country.
A person cannot have 2 domiciles. Since the
object of the law in insisting that no person
shall be without a domicile, is to establish a
definite legal system certain rights
obligations of his are governed since the facts
events of his may affect several countrys
legal system, it is necessary on practical
grounds to hold that he cannot posses more than
one domicile at the same time.

Domicile signifies connection with a territory
subject to a single system of law. In the case of
a federation, where the legislative authority is
distributed by the particular state in which the
person concerned has established his home. A
resident in the USA for instance, is not normally
domiciled in the USA, but in one of its states.
Nevertheless, the doctrine of unity of domicile
ie., one man one domicile, maybe modified by
federal legislation. Thus the family law in
Australia provides that proceedings for a decree
for dissolution of marriage maybe instituted if
either party to the marriage is domiciled in
Australia, thus an Australian domicile is created
even though the concerned person might be
technically domiciled in Sydney.

The fact that domicile signifies connection with
single system of territorial law doesnt imply a
system that prescribes identical rules for all
classes of persons. It might be that in a country
like India where different law applies to
different classes of persons according to their
religion, race or caste, but still it is the
territorial law of India that governs each person
domiciled in India, notwithstanding that Hindu
law may apply to Hindus or Muslim law to Muslims.

There is a presumption in favour of the
continuance of an existing domicile. Therefore a
burden of proving a change in domicile lies on
the person who allege that a change has occurred.
If it is impossible to determine with certainty
what the residents(concerned person) is, then
the court will decide in favour of the existing
domicile.
The standard of proof necessary to rebut the
presumption is adopted in civil cases is that
which requires the intention of the concerned
person to be proved on the balance of
probabilities but not beyond reasonable doubt as
is required in criminal cases.

There is a heavy burden of proof of loss of
domicile of origin when the displacement of a
domicile of origin by a domicile of choice is
alleged, then the standard of proof goes beyond a
mere balance of probabilities. In such a
situation, the court regards the intention in
favour of retaining the domicile of origin as an
almost irrebuttable presumption.
Two things are clear- 1st that unless the
judicial conscience is satisfied by evidence of
change, the domicile of origin persists
2ndly, that the acquisition of a domicile of
choice is a serious matter not to be inferred
from casual words.

The 5th rule is that subject to certain statutory
exceptions, the domicile of a person is to be
determined according to the English law on
domicile not the foreign concept of domicile.

Acquisition of domicile of choice- The 2
requisites for the acquisition of fresh domicile
(that is of choice) are residence intention. It
must be proved that the person in question
established his residence in a certain country
with the intention of remaining there
permanently. The intention may either precede
or succeed the establishment of the residence.
a)Residence- residence intention are separate
but inter related concepts. Residence in a
country for the purposes of the law of domicile
is physical presence in that country as an
inhabitant of it. Eg., a Russian millionaire who
owned 20 houses round the world used his 2
houses in England as mere stop -overs while on
trips was held as not to be resident in England.

Residence intention are inter-related as
residence is a fact, from which intention maybe
inferred. Whatever weight is given to the length
of residence it is undeniable that time is not
the sole criterion of domicile. Long residence
doesnt constitute nor does brief residence
negative, domicile. The residence must satisfy a
qualitative quantitative test.
In Jopp v. Wood it was held that a residence of
25yrs in India didnt suffice to give Indian
domicile because of his alleged intention
ultimately to return to Scotland, the land of his
birth.

Again, Brevity of residence is no obstacle to
the acquisition of a domicile if the necessary
intention exists. If a man clearly intends to
live in another country permanently for eg.,
where an emigrant having wound up his affairs in
the country of his origin, flies off with his
family to Australia, his mere arrival there will
satisfy the element of residence.
White v. Tennant- A man abandoned his home in
State X took his family to a house in State Y,
about half a mile from X, intending to live there
permanently. Having deposited his belongings, he
his family returned to country X, in order to
spend a night with a relative. He fell ill died
there. It was held that his domicile at death was
in Y.

It is possible for a person to be resident in
several countries at the same time. In such a
case of dual/multiple residence, a domicile of
choice can only be acquired in a country if this
can be shown to be the chief residence.
b)Requisite intention-
(The nature of the intention)
An intention to reside permanently- the
acquisition of domicile of choice requires an
intention by the concerned person to remain
permanently in the territory in which he resides.
In Udny v. Udny it was held that intention can be

can be inferred from residence for an unlimited
time.
A conditional intention will not suffice for
acquiring domicile of choice. In Cramer v. Cramer
a woman with a French domicile of origin who came
to England intending to remain there marry a
Englishman, who was already married, did not
acquire an English domicile of choice. Her
intention to remain was conditional on both
herself her proposed husband obtaining divorces
on their relationship continuing.

Unlikely contingencies-In cases where the
termination of residence is dependent on the
occurrence of a contingency this will not prevent
the acquisition of domicile unless the
contingency is itself unambiguous realistic.
If a contingency is not sufficiently clear to be
identified then it cannot operate to prevent the
acquisition of domicile of choice. In Re Furse
case, evidence that the person concerned had a
Rhode Island domicile of origin, would leave
England where he had lived for 40yrs, if he was
no longer able to live an active physical life on
his farm in England, was not fatal to a change of
domicile was held

that the person concerned had acquired an
English domicile of choice. So a vague
possibility that in some undefined circumstances
a person might decide to move to another country
does not deprive him from acquiring a domicile of
choice.
But if the contingency can be identified, it has
to be asked whether there is a substantial
possibility of the contingency happening, if
there is, this will prevent the acquisition of a
domicile by choice. In IRC v. Bullock case,
where a husband intended to return to Canada to
live permanently if his wife predeceased him, it
was held that the husband

did not acquire an English domicile of choice,
since there was a real possibility in view of
their ages of this happening.
Attitude towards contingencies- it has been held
several times that the present residence of a man
is not to be equated with domicile if he
contemplate some remote/uncertain event, whose
occurrence at some indeterminate time in the
future might cause him to leave his country of
residence. If this possibility is present in his
mind, even an intention to reside indefinitely in
the country is said to be ineffective.

In Bowie(or Ramsay) v. Liverpool Royal Infirmary,
George Bowie who had left a will that was
formally valid if his domicile at death was
Scottish but invalid if it was English. He was
born in Glasgow in 1845 with a Scottish domicile
of origin. He gave up his employment as a
commercial traveler at the age of 37yrs refused
to do anymore work during the remaining 45yrs of
his life. But even the idle must be fed so after
residing with his mother sister in Glasgow, he
moved his residence to Liverpool in 1892 in order
to live on the bounty of his brother. At 1st he

lived in lodgings but moved to his brothers
house when the brother died 21yrs later,
resided there with his sole surviving sister
until she died in 1920. he remained there until
his own death in 1927.
Thus George lived in England for the last 37yrs
of his life. During that time he left the country
only twice for tourism purpose. Though he often
said that he was proud to be a Glasgow man, he
refused on several occasions to return to
Scotland, even for the purpose of attending his
mothers funeral. On the contrary he

he had expressed his determination never to set
foot in Glasgow again has arranged his own
burial in Liverpool. Thus evidence was completely
lacking of any intention to disturb a long a
uninterrupted residence in England. Nevertheless
the House of Lords held that George died
domiciled in Scotland. The Lordships denied that
his prolonged residence disclosed an intention to
choose England as his permanent home. Rather they
concluded that if his English source of supply
failed he would have retreated to Glasgow. So he
didnt get England as his domicile of choice.

Evidence of intention- the following has been
regarded as relevant criterion of intention
Acquiring citizenship by naturalization
Retention of old citizenship
Purchase of house
Where income is earned
Purchase of burial ground
Directions in a will as to burial in a particular
country
Long period of residence in a country
Not learning the language of the country in which
the person concerned is living
Not acquiring bank account in that country
Remaining in that country even after spouse has
died

Domicile of Origin Domicile of Choice
Contrasted
Tenacity of the domicile of origin- there is the
strongest possible presumption in favour of the
continuance of a domicile of origin. As
contrasted with the domicile of choice, it has
been held that its character is more enduring,
its hold stronger less easily shaken off.
Decisions in Bowie v. Liverpool Royal Infirmary
Cramer v. Cramer, shows that the burden of
proving a change of domicile from one of origin
to one of choice was a heavy one.

Revival of the domicile of origin- if the
domicile of origin is displaced as a result of
acquisition of domicile of choice, the rule of
English law is that it is merely placed in
abeyance for the time being. It remains in the
background ever ready to revive to fasten upon
the person concerned immediately after he
abandons his domicile of choice.
Eg., X, had a domicile of origin of Scotland
but lived all his life in England, developed a
dislike for UK, leaves the country determined
never to return again. He acquires a domicile of
choice of Peru. After residing there for 40yrs,
he leaves Peru takes up temporary residence in
New York, being undecided whether to settle
permanently in California or Virginia.

the result is that immediately from his
departure from Peru his Peruvian domicile ceases
abruptly but his Scots domicile of origin revives
remains attached to him unless he has acquired
a domicile of choice in some other country.
During the period of indecision in New York there
must be some personal law applicable to him. This
might be either Peruvian or Scottish law. In the
USA where the doctrine of revival is not
accepted, USA would apply law of Peru.
The doctrine of revival has been rejected in
Australia New Zealand.

Domicile of Dependent Persons
Children
A childs domicile of origin- a child acquires at
birth a domicile of origin by operation of law,
if legitimate born in his fathers lifetime,
the domicile of the father, if illegitimate or
born after the death of the father, the domicile
of the mother. A foundling is domiciled in the
country where he is found. A domicile of origin
once acquired remains constant throughout life.

Effect of a change in the parents domicile- a
child under 16yrs is unable to acquire a domicile
of choice by his own act but there is nothing to
prevent the acquisition of a domicile of choice
for him by one of his parents. The rule is that
the domicile of a legitimate child automatically
changes with any change that occurs in the
domicile of the farther. This unity of domicile
is not destructible at the will of the father.
The domicile is not terminated if the father
wants to create a separate domicile for his son,
for instance by setting him up in business
abroad.
At one time, as between a living father
legitimate child, there was an unity of domicile
even though they may have resided in different
countries even after divorce the

mother had custody. But this practice has now
been altered by the Domicile Matrimonial
Proceedings Act 1973. Where both parents are
alive but living separately, the childs domicile
is that of the mother if the child is living with
her not with the father, until he ceases to
live with the mother starts living with the
father, then he will get the domicile of the
father. A child who has his mothers domicile
continues to retain it even after her death
unless he starts living with the father.

The domicile that a child acquires by reason of
his father/mother moving to another country is a
domicile of choice/quasi choice, his domicile
of origin continues to be that imposed upon him
at birth. This rule may become important at a
later stage in his life. For eg., a father
domiciled in England at the time of his sons
birth, later acquires a domicile of choice in
France retains it until after his son reaches
16yrs of age. At the age of 25yrs, the son
acquires a domicile of choice in Italy but later
abandons Italy permanently dies without
acquiring another permanent home(another
domicile). In these cases, the English

the English domicile will revive at the loss of
the sons Italian domicile English law will
govern testamentary/intestate succession to his
movable property.
Married Women
The abolition of dependency- until 1974 the rule
was that the domicile of the husband was attached
to his wife immediately on marriage it was
retained by her for the duration of the marriage.
This rule was abolished by abolished by the
Domicile Matrimonial Proceedings Act 1974. Now
a married women can choose her domicile like any
other person, although

in majority of cases she her husband acquires
the same domicile.
Transitional problems- the 1973 Act also deals
with the transitional problem of the domicile of
dependence of a wife acquired before 1974. A
woman married before 1973 who acquired her
husbands domicile on marriage, is to be treated
as retaining that domicile as a domicile of
choice (if it was not the wifes own domicile of
origin this happens if the husband wife are
born in different countries) until it is changed
by acquisition of a new domicile of choice or she
can also revive her domicile of origin/birth on
or after 1st Jan 1974.

100

Domicile in India The Indian Constitution
recognises only one domicile. In India, the
concept of domicile does not do away with the
concept of the subsidiary domicile e.g. domicile
of States. Laws in India are silent as regards
the position of married women in respect of her
domicile after marriage. Since our laws have not
been amended like the English Laws, our courts
still consider married women as dependents.
However the Indian Succession Act 1925 has to a
great extent codified principles of Private
International Law

101

relating to domicile in India. Under Sec. 16 the
wifes domicile no longer follows that of the
husband if they are separated by a competent
court. But the Act is limited both as it relates
to only cases of succession excludes Hindus,
Muslims, Sikhs, Buddhists or Jains.
Be it pre/post independence, the Indian judiciary
still considers the domicile of the married women
to be that of the husbands.
Now after the 1976 Marriage Laws Amended Act,
Sec. 19 of Hindu Marriage Act Sec. 31 of the
Special Marriage Act has now made it possible to
file for any matrimonial relief on the basis of
residence of any of the parties not domicile.

102
MODULE VI CHOICE OF LAW IN CONTRACTS

United Nations Convention on Contracts for
International Sale of Goods 1980 (CISG)
The CISG can be considered as among the most well
known private international law as recognized by
nations organizations as it is widely accepted
ratified by countries around the world.
CISG applies to contracts of sale of goods
between parties whose places of business are in
different States governs iss

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