Page 1 of 6 Private International - Semester 5 Kerala University -2017-2020 Private International Law Introduction 1. Whether court has jurisdiction 2. If jurisdiction then which law to be applied 3. If there is a foreign judgement, should apply or not Stages of case containing foreign element 1. Jurisdiction of English court Dalmer and Co v Continental Tyre and Rubber- enemy foreign company suit, no entertained. Immunity of Jurisdiction • Personal Immunity – Mighell v Sultan of Johore- • Property Immunity o If sovereign is admittedly the owner of the subject matter of the suit Parliament Belge -Dover harbour – Brithsh Ship- action stayed o If sovereign not the owner, is in defacto possession of the subject matter through its servant Cristina- Spain- possession o If sovereign though not in possession has an immediate right to possession USA v Bank of England – Germany army , gold bar from French, later allied army get that back to England .claim of French dismissed Rahimtoola v Nizam of Hyderabad Court exercise jurisdiction against absent defendant – Assumed Jurisdiction 2. Classification of cause of action English Judge- English law French Judge- foreign law Maltese marriage case – Marriage in Malta, stayed in French- French judge as maltese matrimonial 3. Select of lex causae - Doctrine of Renvoi Procedural matter – lex fori – Ogden v Ogden-France and England marriage case 4. Application of lex causae – Doctrine of Renvoi • Single renvoi – Simple – partial Intestate - Law of nationality- Lex patriae ( x- Bavarian domiciled in France)- Fargo’s Case- Doctrine of Single Renvoi Two methods o Renvoi by remission – return back o Renvoi by transmission – continuous transfer • Double Renvoi – Foreign Country Court- Total renvoi – English Doctrine of renvoi Imaginary journey – to foreign land without considering local private law initially Re Annneslay 1929 – will executed in France and died in France, French apply law of nationality, English law of domicile , not a valid will by applying French law Re Ross - will in Italy, son no share, Italy law not valid, English law it valid. Italy follow nationality, England follow domicile and it decided valid Drawbacks o No uniform result o Cheshire – international game of lawn tennis o Foreign court law is difficult o Proof should be by pleading and parties Read Anil K Nair Book, Before Reading This Short Note ullaskrishnan.com/llb Page 2 of 6 Private International - Semester 5 Kerala University -2017-2020 Exclusion of Foreign law • Foreign Penal laws Huntington v Attrill Benco De Vizcaya v Don Alfonso SA Consortium v Sun and Sand • Foreign revenue laws Govt Of India v Taylor Hollman v Johnson • Foreign laws repugnant to the public policy of England • Foreign Expropriatory Luther v Sagor The Rose Mary – Anglo Iranian Oil Co v Jaffrate Domicile Nationality -> Political Domicile-> Civil Status DP Joshi v State of MP Permanent Home -> Whicker v Hume Union of India v Dudh Nath Prasad • Domicile of Origin • Domicile of Choice o Attain majority o Reside in that country o Permanently Winans v AG – English Law look Domicile – not his choice , because of disease he came, died in England, so not his domicile Ramsay v Liverpool Royal Infirmary – cannot get English domicile, if staying with another,not employment, domicile is scotland Udny v Udny Sankaran Govindan v Lekshmi Bharathy, 1964- hi is domicile in England • Domicile of dependence o Infants o Lunatic o Married woman Domicile of Choice – mere residence in a country is not enough o Prisoners o Refuges o Fugitives from Justice o Fugitive Debtors o Invalids – disease reason Origin Choice Birth choice Not easily shakes easily shaken will not lost easily lost until he gets another will lost for ever ,animo non revertendi Doctrine of revival Not subjected to Doctrine of revival Bell v Kennedy – Wife Jamaica Doctrine of Revival Udny v Udny Read Anil K Nair Book, Before Reading This Short Note ullaskrishnan.com/llb Page 3 of 6 Private International - Semester 5 Kerala University -2017-2020 Four Rules of Domicile 1. No person without Domicile 2. Cannot have two Domicile 3. Strong proof to require to displace domicile otherwise current domicile extend 4. IN case of foreign element the domicile determined by English law and court Indian Law relating to Domicile 1. Domicile of origin Sec 5 – Indian Succession Act 2. Acquisition of new Domicile ( Domicile of Choice) Sec 10 – Indian Succession Act Abu Samad v State of WB 3. Domicile of Married woman Sec 15 & 16 – Indian Succession Act Adams v Adams 4. Domicile of company Incorporated , Companies Act 2013 5. Commercial domicile- Quasi Domicil- comes in to effect c at the time of war time According to business area Tort Theories of Tort o Theory of Lex Fori – german origin- savigny- forum shopping o Theory of lex Loci delicti commissi – place tort committed o The proper law of tort- evolved in America Babcock v Jackson – car, new York, gratuitous tort Modern English law 1. Philips v Eyre- wrong must be actionable in England, must not justify with the place of law – defendants act is justified by Jamaican law Double Action Ability 2. Machado v Fontes-libel from brazil, libel its crime not tort, but England its Tort , liable to pay compensation, lex loci delicit commissi is not valid 3. Boys v Chaplin a. If its tort in English domestic law then foreign tort is valid b. Only criminal in lex loci delicti– then its will fail in England c. Not justified by the law of the place it was done If all the above satisfied then Tort actionable in England Maritime tort – flag of the ship Contract Proper law of Contract 1. Theory of Intention (Subjective Theory) 2. Localisation Theory (Objective Theory) Decided Cases Vita Food Products Incorporation v Unus Shipping Company – company incorporated in Nova Scotia, - English court mentioned, they agreed to follow English law and its liable The Assunzione- Italy and France, Wheat cargo, need to find the elements connected to which country. Italian law was proper , no express selection The Alwahab – libiyan , business in dubai, Loyds SG English Insurance policy, policy issued in Kuwait and payment in sterling- final English law attracted Read Anil K Nair Book, Before Reading This Short Note ullaskrishnan.com/llb Page 4 of 6 Private International - Semester 5 Kerala University -2017-2020 Proper law – Not applicable 1. Illegality – lex fori, lex loci contractus, lex loci solutionis( law of the place of perdormance), Illegality Lex Domicili or Lex Partriae 2. Formal Validity – lex loci contractus, locus regit actum ( place governs the act) 3. Capacity of Parties – no English law exist to governs this Bodley Head v Flegon Marriage Special contract , concluded only by formal or public act Christian Marriage – Hyde v Hyde – Mormon faith - Utah 1. Union voluntary 2. Monogamous 3. Must be for life and not limited period Law decide – law of the place marriage was celebrated ( lex loci celebrationis) Cheni v Cheni –Jewish Polygamous then monogamous – child after 10, but child born 2 years Sinha Peerage Claim – Hindu marriage before 1955 polygamous, joined bhrahma samaj, one wife Ali v Ali- marriage in India polygamous, but got English domicile and monogamous What extend Polygamous in English court – approved 1. Recognition as bar to subsequent marriage Baindail v Baindail :married hindu , later married England girl, She file a case for nullity, not null 2. For enforcement of proprietary rights under personal law 3. Conferring legitimacy to children 4. Determine right of succession 5. Right of succession of widows 6. Confer benefit of social security legislations Validity of marriage Formal Validity – lex loci celebrationis 1. Consular marriage 2. Marriage of member of British forces serving abroad 3. Common law of marriage Essential validity 1. Duel domicile theory- marriage capacity 2. Intended matrimonial home theory – Brook v Brook – Danish law legal w.r.t to sister, English its invalid Mette v Mette – German wife sister, England it illegal and not valid Padolechia v padolechia Exception to Dual Domicile Theory Sottomayor v De barrow – lex loci Matrimonial cause When a English court grant Decree of Divorce Find Jurisdiction Le mesurier v Le Mesurier – domicile of husband at the time of marriage, Matrimonial causes Act of 1937 Choice of law – Lex Fori- alone Read Anil K Nair Book, Before Reading This Short Note ullaskrishnan.com/llb Page 5 of 6 Private International - Semester 5 Kerala University -2017-2020 Recognition of Foreign Decree of Divorce Recognition only for court where domicile 1. Armitage v Attorney General – if its recognized by the court of the country, South Dakota, Domiciled in New York 2. Travers v Holley – same jurisdiction of circumstances, England, New South wales 3. Indyka v Indykas-real and substantial connection, checkoslovakya Two Act enacted by British parliament and following provisions added for valid decree 1. By domicile country 2. Nationality court of either party 3. By domicile court 4. By court in country where either spouse as habitually resident Recognition of Extra Judicial Divorce 1. Hammer Smith Marriage case- not the presence of wife, dismissed talaq 2. Russ v Russ- talaq recognized , in presence of wife sharia court 3. Manning v manning 4. Quereshi v Quereshi 5. Quazi v Quazi Legitimacy , Legitimation and custody Shaw v Gould – Domicile of origin of that child,Buxton Legitimation 1. Legitimation by subsequent marriage of the parents 2. Legitimation by recognition given by the child’s father Indian Law Marggarate v Dr Chacko Sarita Sharma v Sarita Sharma Immovable property English court has no jurisdiction to entertain a dispute connected with foreign immovable Lex Sites- the place where property situate Jurisdiction Mocambique rule- English court British South Africa Company v Compane de Mocambique Exception to The Rule 1. Action found in Personal obligations Penn v Baltimore- Pennsylvania and province of Mary land 2.