Conflict of Laws

Course Description
Whenever a law addresses a legal problem that has a foreign element, there is a potential
conflict of laws.
In today’s world the distances are getting smaller, the world is becoming a global village
and the inter-state transactions have enhanced manifold. The transactions include,
transactions with regard to marriage, property, adoption and contracts. Legal issues with
regard to these transactions are increasing day by day. Thus, the courts are facing
problems in the form of cases with foreign elements. So Students should have knowledge
of all the aspects of Private International Law when they go before the court to practice.
In essence, whenever conflict of laws arises, the key issues are: whose courts have
jurisdiction, whose laws are to be used, and can the judgement be enforced? These
questions are at the core of this subject guide, and they range across every facet of human
activity in which the law may play a role.
LAW 503 Conflict of Laws L T P C

Version1.1 Date of Approval: 4 0 0 4
Pre-requisites/Exposure Basic Knowledge of Public International Law, Family Law, CPC
Co-requisites Study of Law of Contract, CPC, Transfer of Property Laws.
Semester IX
Programme B.A.LL.B. (H.) & B.Sc.LL.B. (H.)
Course Objectives
To understand the Conflict of laws and how Law for the same issue can be different in
different nations, there are three main objectives of this subject.
The first two questions must be asked and answered every time we are faced with a
problem which has a foreign element. The third question only arises where there is a
foreign judgment.
1) To set out the conditions under which a court is competent to hear an action.
This is the question of jurisdiction.
2) To determine by what law the rights of the parties are to be ascertained. In a

contract dispute, for example, it is necessary to determine the law governing
the contract (its ‘applicable law’). This is the question of choice of law.
3) Where a dispute has been litigated in another country, to specify the
circumstances in which the foreign judgment can be recognised and enforced
by action in another nation (Eg: India). This is the question of recognition and
enforcement of foreign judgments.
Course Outcomes
At the end of the course the students will be equipped with the skills:
1. To understand whether principles of Conflict of Laws are applicable in any case

involving foreign element.
2. To identify the issue of Jurisdiction of a court in any case where foreign element is
involved.
3. To identify the Law that will be applicable in any case where foreign element is involved.
4. To understand whether a foreign judgement can be recognised and executed by municipal

courts.
5. To understand the conflict between norms of Private International Law in Common Legal
System and Civil Law System
Text Books
 Paras Diwan, Private International law, Deep & Deep,4th Edn., New Delhi (1998)
 Atul Setalwad, Conflict of Laws, Lexis Nexis, 3rd Edn., Delhi (2014)
Reference Books
 Frederic Harrison, Jurisprudence and Conflict of Laws
 Srumberg, Private International Law
 A.V.Dicey, Conflict of Laws
 Cheshire and North, Private International Law, Oxford: Oxford University Press (2006)
Course Content
PART A – GENERAL PRINCIPLES
Unit I:
Introduction 4 Lectures
 Definition of Conflict of Laws; Its Functions and why is it important.
 Difference between Public and Private International law.
 Development and History - England and India - a Comparative Study
 Modern theories:
o Statutory, Territorial, International, Local Law and Justice.
 Stages in a Private International law
 Choice of Jurisdiction
 Choice of law
 Unification of Private International Law
Unit II:
Choice of Jurisdiction (First stage) 3 Lectures
 Meaning, Basis of jurisdiction, limitations like effectiveness principles - Relevant

C.P.C. provisions regarding jurisdiction -ss. 15-20, 83, 84, and 86
 Kinds of jurisdiction:
 Actions in Personam (Contract).
 Actions in Rem (such as matrimonial causes and probate)
 Admiralty action (S VI the Admiralty Courts Act)
 Actions under assumed discretionary jurisdiction (inherent jurisdiction) (Indian
Context: ss. 10 and 151 of C.P.C.)
Unit III:
Choice of Law (Second Stage) 5 Lectures
 Classification/Characterization/Categorization - allocation of category to the

foreign element case.
 Necessity for Classification (different legal concepts with different content – matters like
domicile, talaq and dower in different legal systems.
 What is Connecting factor.
 Selection of Lex Causae through Connecting Factor.
 Meaning & Application of Lex Causae - Renvoi: Partial and Total (Foreign Court Theory) -
critical analysis of Renvoi - Indian position
Case Law: Re Ross Case
Vishwanathan ( R) v. Rukn-Ul-Mulk Syed Abdul Wajid
Unit IV :
Limitations on application or exclusion of foreign law 2 Lectures
 When foreign law is excluded: grounds - Public Policy, Revenue Laws and Penal Laws
Case Laws:
1. Schemmer v Property Resources Ltd [1974] 3 All ER 451
2. Bank of Ireland v Meeneghan [1995] 1 ILRM 96
3. United States of America v Inkley [1989] QB 255 at 265
Unit V: Incidental Question and Time Factor in private International Law

2 Lectures
Unit VI
Concept of Domicile 3 Lectures

 Concept of Domicile, Nationality, Citizenship & Habitual Residence
 General principles/fundamental Principles
 Elements - intention and residence
 Kinds
 Domicile of Origin
 Domicile of Choice
 Domicile of dependence (Married women's position in English and Indian laws)
 Domicile of corporation.
Case Law:
1. Sondur Gopal v. Sondur Rajini (2013) 7 SCC 426
2. Handerson v. Handerson (1965) 2 W.L.R. 218
3. Rasheed Hasan v. Union of India 1967 All 154
PART B – LAWS OF PERSONS
Unit VII
Marriage 7 Lectures
 Concept & Kinds of Marriage
 How in India, marriage as a concept moved from partially polygamous towards
monogamous type and total sacrament to secularization to some extent.
 Questions of Formal and Essential validity:
 Formal validity by lex loci celebrationis
 Essential/material/intrinsic validity
Case Law:
1. Hassan v Hassan [1978] 1 NZLR 385 at 390
2. Mehta v Mehta [1945] 2 All ER 690
3. Chetti v Chetti
4. Hyde v.Hyde [L.R. (1866) 1 P.M. 130 at P. 133]
5. Ogden v. Ogden.
6. Nevada case USA – SC case
Unit VIII
Matrimonial Causes 5 Lectures
 Concept of Matrimonial Cause (Relief)
 Available Reliefs
 Divorce, Nullity, Judicial Separation
 Restitution of Conjugal Rights (in English law)
 Choice of Jurisdiction and Choice of Law to be examined.
Case Law:
1. In the Marriage of Hanbury Brown (1996), FLC 92-671
2. Butler v Butler [1997] 2 All ER
Unit IX
Legitimacy and Legitimation 4 Lectures

 What is legitimacy
 What law governs legitimacy
 Validity of marriage
 Legitimation – Meaning & Concept, Effect & Legitimation and Succession.
 Case Law:
1. G v United Kingdom (Children :Rights of Contract) [2001] 1 FLR 153
2. Sylvester v Austria [2003] 2 FLR 210
Unit X
Adoption: 2 Lectures
 Recognition of Foreign Adoptions

 Adoption by foreign Parents
 Jurisdiction under Indian and English Law
 Inter Country Adoption & Hague Convention 1993
Re G (Foreign Adoption:Consent) [1995] 2 FLR
PART C – LAWS OF PROPERTY
Unit XI
Property 7 Lectures
 Distinction between movable and immovable property (English idea of personal
and real property).
 Immovables governed by lex situs - exceptions in English Law - S.16 C.P.C.
lex situs rule
 Succession to immovable property - lex patrae
 Movables: tangible and intangible - chooses in possession and chooses in action in
English Law - Chooses in action as actionable claims in India Law with some exception
(SS 3 and 130 T.P. Act 1882.)
 Transfer of Tangible Movables (Particular Assignment).
 Different theories
 Assignment of Intangible Movables
 Kinds of assignment-voluntary and involuntary
 Formal and essential validity
Unit XII
Succession 4 Lectures
 Testate and in testate (Involuntary Assignment) - relevant provisions of Indian Succession
Act.
 In testate succession
 Wills- Formal and Essential Validity
 Capacity-lex domicilii to make will (movables generally)
 In case of immovables, lex situs governs
PART D – LAWS OF OBLIGATION
Unit XIII
Contracts 4 Lectures
 Contract- a leading relationship in private international law system
 Validity of contracts
 Capacity to contract-Main four theories Lex Loci, Lex Domicilii, lex situs and
proper law.
 Formal validity - lex loci contractus governs
 Essential validity - proper law is usually accepted as governing.
 Discharge of contract - Lex loci solutions governing.
 Doctrine of "proper law" of contract subjective and objective Theories
Case Laws:
1. Miller v.Whiteworth Street Estates (1970) 2 W.L.R. 728
2. Sayers v. International Drilling Co. (1971) 3 All E.R. 163
Unit XIV 2 Lecture
 Recognition and Enforcement of Foreign Judgments/Awards

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Course Description

LAW 503 Conflict of Laws L T P C

2) To determine by what law the rights of the parties are to be ascertained. In a

1. To understand whether principles of Conflict of Laws are applicable in any case

4. To understand whether a foreign judgement can be recognised and executed by municipal

PART A – GENERAL PRINCIPLES

 Meaning, Basis of jurisdiction, limitations like effectiveness principles - Relevant

Choice of Law (Second Stage) 5 Lectures

 Classification/Characterization/Categorization - allocation of category to the

Unit V: Incidental Question and Time Factor in private International Law

Concept of Domicile 3 Lectures

PART B – LAWS OF PERSONS

Legitimacy and Legitimation 4 Lectures

 Recognition of Foreign Adoptions

Re G (Foreign Adoption:Consent) [1995] 2 FLR

PART C – LAWS OF PROPERTY

PART D – LAWS OF OBLIGATION

Unit XIV 2 Lecture

 Recognition and Enforcement of Foreign Judgments/Awards

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