MODULE 1

INTRODUCTION AND
THEORIES OF PRIVATE
INTERNATIONAL LAW

M. MALATHI
PRIVATE INTERNATIONAL
LAW
Conflict of Laws concern those areas of law
primarily with specific duties and rights of
individual with which the State not
immediately and directly concerned.
It is a set of rules procedural law that
regulates the relationship btw physical and
judicial persons of diff. nationalities.
Determines which legal system and the law
of which jurisdiction will apply to a legal
dispute among parties involving a foreign
element. (US Legal)
 FOREIGN ELEMENT

It means a contract which involved

systems of law other than the
domestic or internal laws of the
country.
 PURPOSE
To protect and ensure the peaceful
interaction of private person in diff.
countries.
International Trade / Commerce difficult if
these not exist legal system for
promoting, guiding and protecting
international extension of human
activities.
To achieve this goal of universal justice
and maintaining equity to all human
begins.
 FUNCTIONS

To ensure the appropriate laws among

the several potentially applicable laws
must be selected for determination of
an issues presented before the
competent courts.
Forum shopping available
Statutory interpretation
 BASIC ISSUES

Choice of Jurisdiction
Choice of Law
Recognition and Enforcement of
Foreign Judgment
Time Factor in the spatial application
of laws
 MAIN SOURCES

Statutes, Treaties and Conventions

Decisions of the Courts
Opinion of Jurists
Customary Laws
Legislations
 DEVELOPMENT STAGES

Statutory Intent
Agreement of Parties
Territorial Sovereignty
Location of Legal Relations
DIFFERENCE
PUBLIC IL PRIVATE IL
Persons to whom it
Operates:-
Deals with parties in this
Deals with the Law of Nations.
branch of law

Transaction Itself:-
Assumes control of
Recognize in general only
transactions private in their
those questions in which
nature.
sovereign states interested.

REMEDY:- Question of Private IL decided

Question of Public IL can be
settled only through the
diplomatic channels or war.
by the courts of the Country/
State in which question
comes up for adjudication.
 INTERNATIONAL COMITY
Comity means neither a matter of absolute
obligation mere courtesy and good will.
Requires courts to balance competing public
and private interest takes into account of any
conflict that arose btw public policies of the
domestic and foreign sovereigns.
Two Sense:
1. Refers to classical doctrine of comity evolved
through 19th century specific and applied
narrowly to the conflict of laws.
2. Both as conflicts rule and as a justification for
deferring to the foreign law.
 Comity
3 Distinct as follows:
1) Originally it was a discretionary doctrine that
empowered courts to decide when to defer
foreign law out of foreign sovereigns. But
became a rule that obligates courts to apply
foreign law in certain circumstances.
2) Object of comity changed whereas one courts
justified applying foreign law out of deference to
foreign sovereigns, courts out of deference to the
autonomy of political branches/ private parties.
3) No longer merely a doctrine for deciding when to
apply foreign law become a justification for
deference's cases concerning prescription,
adjudicatory and enforcement jurisdiction.
 IDENTIFICATION
Webb PRH & Brown DJL identifies 3 main aims
of the English law:-
Indicate whether an English Court has
jurisdiction to entertain particular suit
containing one or more foreign elements;
Which one or more of the several possible
relevant laws applied to reach a decision;
When subject to what condition an English
Courts prepared to recognize and enforce
judgment rendered by a foreign courts.
 SANIGAY JURIST & GERMAN
SCHOLAR
Each legal relation has its natural seat i.e.
connecting factors which he proposed as
follows:
a) Domicile of a person (lex domicili) which
law shld be govern his capacity,
b) Location of legal transactions by which
law (lex situs) the right in such things
governed.
c) Location of legal transactions by which
law (lex loci actus), and
d) Location of Courts by which law (lex fan)
procedure shall be governed.
 THEORIES OF PL
LEX FORI THEORY:-
To ascertain legal certainty with essentially concerned
identify the relevant legal category and applicable English
conflicts rule leads to identification of the governing laws.
Any reference to potentially applicable foreign law
premature until it has been done.
Characterization of rules its own domestic laws in
accordance with their nearest equivalent domestic laws.
Foreign laws allowed to determine in what situations to be
applied, law of the forum would lose all control over the
applicable conflict of rules .
No close analogy to the foreign rule of law in the domestic
law of the forum.
 LEX CAUSAE THEORY
Wolf states that every legal rule takes its
characterization from the legal system to which it
belongs.
Question must be decided as a matter of fact and
law in accordance with the law (any country)
outcome that domestic laws entitled.
Foreign law applies or governs then apply its
characterization tantamount not applying it all.
Critics: The process of characterization before the
process led to the selection of the foreign laws.
To avoid parochialism and injustice inherent in the
lex fori theory.
 ANALYTICAL JURISPRUDENCE &
COMPARATIVE LAW THEORY
To make process of certification enlightened and
international its scope.
Some scholars think that process of
characterization should be performed in
accordance with these principles.
Judicial procedure in conflicts matter must be
more internationalist and less insular than
domestic cases.
Few principles of this theory having universal
application.
International Agreement on analytical concept
intopia.
The Comparative law capable of revealing
difference btw domestic laws if hard capable of
 VIA MEDIA THEORY
Adopted a theory to bridge gap btw
lex fori and lex causae theories.
Will create a gap and its so difficult
to close
Very weak in this theory
If English rules found to be
procedural and found to be
substantive two will be
simultaneously applicable creating
problem of cumulation.
DISCRETIONARY THEORY
Rigidly on Interest oriented
Autonomous Theories permit the
court some flexibility as to avoid
pitfall of rigid rules.
Characterization must remain as rule
of interpretation and not
independent technique require a
separate choice of law rules.
 THEORY OF ACQUIRED
RIGHTS
This theory originated by the Dutch jurist Huber.
Chief Exponents Dicey (England) and Beale
(USA)
Based on the Principle of Territoriality.
A judge cannot directly recognize foreign laws
nor can be directly enforce foreign judgments for
his own territorial law which must exclusively
govern all cases that require his decision.
No exception to the principle of territoriality for
what the judge does to protect rights already
acquired by a claimant under the foreign
law/judgment.
 Extra Territorial effect not apply to the foreign
law itself merely to the rights that it has
created.
One of the elementary duty of a civilised court
impartial to protect existing rights even though
they originated abroad.
Protection of right gives effect to the legal
system which owes its origin as a conclusion of
law.
Logic requires the court forum shall apply not
merely the domestic rules also the choice of law
rules of the legal system under which the right
have been acquired.
 CRITICISM
1. Explanation of difficultly reconciling the
recognition of a foreign law with the
general principle that law of a sovereign
state have force only within its own
territorial jurisdiction.
2. It is futile to indicate what legal system
governs each legal relation for the
question and produces a vicious circle.
3. Untrue in fact that choice of law rule
current of the common law can require
the enforcement of a right unrecognized.
 LOCAL LAW THEORY
Expounded by Walter Wheeler Cook regard to the value so
called Fundamental Principles.
To derive the governing rules not from the logical reasoning
of philosophers and jurists observing what the courts
actually done in dealing cases involving PIL?
A statement of law is true not conforms to an alleged
inherent principles represents past therefore the
probable future is Judicial Attitude.
Court of the forum recognises and enforces local right
i.e. created by its own law.
It governs purely domestic in character.
Foreign elements guided by its own choice of law rules
and applied some law other than its own domestic system.
 AMERICAN REVOLUTION
Major theoretical developments of PIL over the last
few decades taken place in USA.
Variety of ways tackling choice of law problems in
the USA.
Basic characteristics analysis of the issue arising in
a particular case concern to devise the appropriate
rules formulated problem narrowly as compared
broadly based on conventional choice of law
rules.
Courts must examine particular substantive law
rules in conflict to identify the policies at
issues and to resolve any conflict identified by the
choice of law rules.
(i) Two General Approaches
a) Rule Selection or Jurisdiction
) Law of the place of cause of action arose
) Validity of a contract governed by the law chosen
by the parties
) Law of the country with which the contract more
closely connected.
) The choice btw jurisdiction selection approach
must dealing court with a claim that a foreign law
applicable to the case.
) Re-Selection preferred by American Writers
emphasis a choice btw different substantive rules
of law which in turn leads to a balancing interest
involved in the application of a particular
substantive rule of one legal system rather than
b) True & False Conflicts
A jurisdiction selecting approach to choice of
law leads to the application of the rule of
law chosen jurisdiction irrespective of which
rules of substantive law two or more involved
legal systems to be applied.
If they do not analysis only one such a claim
there is no choice to be made. This latter
situation described as a false conflict the
former case more than one set of rules has a
legitimate claim to application, necessitating
development of rules for choosing btw them true
conflict.
Third possibility described as a no interest
case where a conflict of decision may result from
the application of the laws of different states.
Re analysis the choice of law problem remains in
(ii) Rule-Selection Techniques
a) Governmental Interest Analysis
b) Comparative Impairment
c) Principles of Preference
d) Interpretation of Forum Policy
e) Choice of Law factors
) First American Law Institutes Restatement of the conflict of laws
) It adopts its basic criterion for choice of law the application of the law of the
state which has the most significant relationship to the particular issue.
) This require the Court to follow a statutory directive of its own state on choice
of law in absence of such a directive, relevant factors to the choice of the
applicable law include:
a) Needs of the inter-state and international systems;
b) Relevant policies of the forum;
c) Relevant policies of other interested states and those states in the
determination of the particular issue;
d) Protection of justified expectations;
e) Basic policies underlying the particular field of law;
f) Certainty, predictability and uniformity of result; and
g) Ease in the determination and application of the law to be applied.
SECOND APPROACH:-
Involving choice of law factors has advocated by Leflar
that courts resolve choice of law issues by refernce to five
Choice- influencing considerations.
He listed out the priorities as (i) Predictability of result, (ii)
Maintenance of interstate and international order, (iii)
Simplification of the judicial task, (iv) Advancement of the
forums governmental interests and (V) Application of the
better rule of law.

(iii) Impact of the Revolution

Direct influence of these American developments of PIL

theory limited to the USA approach to choice of law
problems.
 ENGLISH APPROACH
Foreign right as vested may be misleading
which implies that it cannot be disregarded.
The forums recognition of the foreign right
not based on an admission that it has any
force itself , but after realization its own
positive rules of law .
These rules are part of its own territorial law
regulate conveyance of land in its own
country.
In order to develop clear rules properly
applicable to the generality of cases in a
particular field.