History and Evolution of Private International Law- (Including India)

8/14/2019 History and Evolution of Private International Law- (Including India)..

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1. Introduction:-

Private international law is that part of the law of any State which comes into operation when acourt is called upon to determine a suit containing a foreign element. Such a foreign element mayexist, for instance, because a contract has been made or is to be performed in another State or

because the recognition of a divorce obtained by persons domiciled abroad may arise. Becausethe courts of the other State may also be asked to exercise jurisdiction in the suit, or because thelaws of that other State may be different to those of Ireland, in determining the proceedings

before it, an Irish court may be confronted with a conflict of laws 1. Such conflicts are resolved by applying the rules of private international law.

To varying degrees the rules of private international law which have been developed in Irelandwill be different to those developed in other States and indeed there are probably as manysystems of private international law rules as there are States and therefore national legalsystems 2.

First of all, I would stress that we all know that Roman Law Greek and Roman political andlegal genius has been the very foundation and framework of European legal development. BothGreece and Rome had developed domestic and international commercial activities, supported byequally developed and sophisticated laws and rules in all or in most public and civil law matters.They, of course, covered also relationships and cases with foreign elements.

The question may be asked: Do we see in that distant legal world a milestone of what we aretalking about? A milestone around which legal thinking generated comparative substantive orconflict of laws ideas and rules to serve the respective needs of Greek and Roman antiquity?

The answer is yes and no ?

The yes answer is very strong. Both Greece and Rome developed an d constantly improveddomestic substantive law instruments and forensic practice. These laws and practice wereapplied also with respect to case s with a foreign element. The Jus peregrini also wassubstantive Roman law. These propositions are well evidenced by the works of, e.g., Aristotleand Plato, and the vast body of laws and regulations represented by the Roman CorpusIurisCivilis. As to the substantive law structures, the mutual learning and influencing process as a result, the harmonizing effect was very strong.

Private International Law has developed as a system very recently. Judicial decisionshavecontributed largely in shaping this branch of law but it is also influenced bycontinental thoughts.It is necessary to focus on its historical development before anyserious discussion on PrivateInternational Law issues.

1 http://www.dfa.ie/home/index.aspx?id=366- Oct 5 th / 20132Ibid-1


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Adequacy of principles of private international law cannot be understood unless we know fromwhere principles and concepts have originated and how they developed from centuries. 3

In course of it s evolution, jurists also sought to analyze the foundations of private internationallaw in order to provide its concepts and rules which could explain its working.

In this project, the relevancy of studying the historical background, namely the so calledHistorical method in legal research is given by reference to several well known legal and otherresearchers like Julias stone, benzamine Cardozo, C.K Allen, Pauline.V Young. The limitationsof the historical methods are also given. The historical and political circumstances in whichconflictual questions arise are briefly discussed. There after historical evolution is narrated inancient Roman and medieval period. 4

Specifically wherever due to historical ,political circumstances and legal systems came tooverlap each other or were forced to take cognizance of another legal system or came to conflict,

each other, then private international law said to have arisen.In West, Conflict of Laws first arose in Roman empire which spread over Southern Europe,NorthAfrica and West Asia when Roman Magistrates were called upon to settle the disputes betweenthe people of different nationalities. 5

Theoretical thinking and systematic formulation of the subject was done in Europe in the Middleages, particularly by the Italians. In England subject was developed in 19 th century andthereafter, the country became an Empire. Many Theories have evolved providing a rationalexplanation to its rules. 6 The private international aw of the Continental countries have an earlierhistory. We would survey of historical antecedents of the private international law of theContinental Europe, and India.

2. History of Private International Law:-

The first instances of conflict of laws in the Western legal tradition can be traced to Greek law.Ancient Greeks dealt straightforwardly with multistate problems, and did not create choice-of-

3Private international Law in India- by F.E.Noronha, p.g 16.4Benjamin Corodozo,The nature of judicial process, Universal Publication Pvt Lmt-P-365C.KAllen,TheLawinMaking,1997http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA14&lpg=PA14&dq=

C.K+Allen,+The+Law+in+Making,+1997&source=bl&ots=xeVkHucgip&sig=sxCndAPWS1J-t8eCK2KX4cWp-os&hl=en&sa=X&ei=-m1zUsnwBIaJrgeTv4HYCQ&ved=0CDkQ6AEwAw#v=onepage&q=C.K%20Allen%2C%20The%20Law%20in%20Making%2C%201997&f=false-Oct 4 th /20136Pauline V.Young, Scientific Social Surveys and Research, p-148-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA15&lpg=PA15&dq=Pauline+V.Young,+Scientific+Social+Surveys+and+Research,+p-148&source=bl&ots=xeVkHuchms&sig=lEHYLfUKM6AfPcv3VNMYZhWWbMQ&hl=en&sa=X&ei=iG5zUv-

NOIGNrQeYzIGgAQ&ved=0CCgQ6AEwAA#v=onepage&q=Pauline%20V.Young%2C%20Scientific%20Social%20Surveys%20and%20Research%2C%20p-148&f=false- Oct 6 th /2013
http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA15&lpg=PA15&dq=Pauline+V.Young,+Scientific+Social+Surveys+and+Research,+p-148&source=bl&ots=xeVkHuchms&sig=lEHYLfUKM6AfPcv3VNMYZhWWbMQ&hl=en&sa=X&ei=iG5zUv-NOIGNrQeYzIGgAQ&ved=0CCgQ6AEwAA#v=onepage&q=Pauline%20V.Young%2C%20Scientific%20Social%20Surveys%20and%20Research%2C%20p-148&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA15&lpg=PA15&dq=Pauline+V.Young,+Scientific+Social+Surveys+and+Research,+p-148&source=bl&ots=xeVkHuchms&sig=lEHYLfUKM6AfPcv3VNMYZhWWbMQ&hl=en&sa=X&ei=iG5zUv-NOIGNrQeYzIGgAQ&ved=0CCgQ6AEwAA#v=onepage&q=Pauline%20V.Young%2C%20Scientific%20Social%20Surveys%20and%20Research%2C%20p-148&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA15&lpg=PA15&dq=Pauline+V.Young,+Scientific+Social+Surveys+and+Research,+p-148&source=bl&ots=xeVkHuchms&sig=lEHYLfUKM6AfPcv3VNMYZhWWbMQ&hl=en&sa=X&ei=iG5zUv-NOIGNrQeYzIGgAQ&ved=0CCgQ6AEwAA#v=onepage&q=Pauline%20V.Young%2C%20Scientific%20Social%20Surveys%20and%20Research%2C%20p-148&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA15&lpg=PA15&dq=Pauline+V.Young,+Scientific+Social+Surveys+and+Research,+p-148&source=bl&ots=xeVkHuchms&sig=lEHYLfUKM6AfPcv3VNMYZhWWbMQ&hl=en&sa=X&ei=iG5zUv-NOIGNrQeYzIGgAQ&ved=0CCgQ6AEwAA#v=onepage&q=Pauline%20V.Young%2C%20Scientific%20Social%20Surveys%20and%20Research%2C%20p-148&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA15&lpg=PA15&dq=Pauline+V.Young,+Scientific+Social+Surveys+and+Research,+p-148&source=bl&ots=xeVkHuchms&sig=lEHYLfUKM6AfPcv3VNMYZhWWbMQ&hl=en&sa=X&ei=iG5zUv-NOIGNrQeYzIGgAQ&ved=0CCgQ6AEwAA#v=onepage&q=Pauline%20V.Young%2C%20Scientific%20Social%20Surveys%20and%20Research%2C%20p-148&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA15&lpg=PA15&dq=Pauline+V.Young,+Scientific+Social+Surveys+and+Research,+p-148&source=bl&ots=xeVkHuchms&sig=lEHYLfUKM6AfPcv3VNMYZhWWbMQ&hl=en&sa=X&ei=iG5zUv-NOIGNrQeYzIGgAQ&ved=0CCgQ6AEwAA#v=onepage&q=Pauline%20V.Young%2C%20Scientific%20Social%20Surveys%20and%20Research%2C%20p-148&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA15&lpg=PA15&dq=Pauline+V.Young,+Scientific+Social+Surveys+and+Research,+p-148&source=bl&ots=xeVkHuchms&sig=lEHYLfUKM6AfPcv3VNMYZhWWbMQ&hl=en&sa=X&ei=iG5zUv-NOIGNrQeYzIGgAQ&ved=0CCgQ6AEwAA#v=onepage&q=Pauline%20V.Young%2C%20Scientific%20Social%20Surveys%20and%20Research%2C%20p-148&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA15&lpg=PA15&dq=Pauline+V.Young,+Scientific+Social+Surveys+and+Research,+p-148&source=bl&ots=xeVkHuchms&sig=lEHYLfUKM6AfPcv3VNMYZhWWbMQ&hl=en&sa=X&ei=iG5zUv-NOIGNrQeYzIGgAQ&ved=0CCgQ6AEwAA#v=onepage&q=Pauline%20V.Young%2C%20Scientific%20Social%20Surveys%20and%20Research%2C%20p-148&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA15&lpg=PA15&dq=Pauline+V.Young,+Scientific+Social+Surveys+and+Research,+p-148&source=bl&ots=xeVkHuchms&sig=lEHYLfUKM6AfPcv3VNMYZhWWbMQ&hl=en&sa=X&ei=iG5zUv-NOIGNrQeYzIGgAQ&ved=0CCgQ6AEwAA#v=onepage&q=Pauline%20V.Young%2C%20Scientific%20Social%20Surveys%20and%20Research%2C%20p-148&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA15&lpg=PA15&dq=Pauline+V.Young,+Scientific+Social+Surveys+and+Research,+p-148&source=bl&ots=xeVkHuchms&sig=lEHYLfUKM6AfPcv3VNMYZhWWbMQ&hl=en&sa=X&ei=iG5zUv-NOIGNrQeYzIGgAQ&ved=0CCgQ6AEwAA#v=onepage&q=Pauline%20V.Young%2C%20Scientific%20Social%20Surveys%20and%20Research%2C%20p-148&f=false-


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law rules. Leading solutions varied between the creation of courts for international cases, orapplication of local law, on the grounds that it was equally available to citizens of all states.

More significant developments can be traced to Roman law. Roman civil law (Jus Civile) beinginapplicable to non-citizens, special tribunals had jurisdiction to deal with multistate cases. The

officers of these specialized tribunals were known as the Praetor Peregrini .7 The Praetor

Peregrini did not select a jurisdiction whose rules of law should apply. Instead, they "applied"the "Jus Gentium." The Jus Gentium was a flexible and loosely-defined body of law based oninternational norms. Thus the Praetor peregrini essentially created new substantive law for eachcase. Today, this is called a "substantive" solution to the choice-of-law issue. 8

The modern conflict of laws is generally considered to have begun in Northern Italy during thelate Middle Ages and in particular at trading cities such as Genoa, Pisa and Venice. The need toadjudicate issues involving commercial transactions between traders belonging to different citiesled to th e development of the theory of S tatuta , whereby certain city laws would be considered

as StatutaPersonalia "following" the person whereby it may act, and other city laws would beconsidered as StatutaRealia, resulting in application of the law of the city where, e.g., the reswould be located (cf. lexsreisitae) 9.

3. Ancient Roman Law:-

Roman Law is regarded as the foundation of Civil Law system or Continental Law. Though itcannot be said that any Theory of Private International Law or Conflict of Laws developed inPrivate International Law, The Roman Law, the condition, circumstances and problems andquestions arising in leading to such theory were very present in period Roman imperial period. 10

Roman jurisprudence given birth to certain basic concepts, principles, rules and approaches asfollows:-

a) Concept of Domicile, which thereafter, in Common Law, became the connecting factorfor determination of Personal Law, i.e status, capacity and the like as a contrasted with

Nationality and Citizenship which are the connecting factors of Civil Law. 11

b) The Rule of LexSitus that immovable property is governed by Law of Place where it issituated. 12

7Supra-68 Conflict of Laws-Encyclopedia Britannica- http://www.britannica.com/EBchecked/topic/333023/conflict-of-laws-Oct 3rd / 20139 Supra-510For history of Rome and Civil Law, Andrew Borkowski, Text Book on Roman Law. P-363.7th Edition.11Paras Dian and PeeyushiDiwan-Private International Law-4 th edition-P-5912R.H Gravson, The Conflict of Laws, London-Sweet nad Max Well Limited,6 th edition 1969, p-30-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA15&lpg=PA15&dq=Pauline+V.Young,+Scientific+Social+Surveys+and+Research,+p148&source=bl&ots=xeVkHuchms&sig=lEHYLfUKM6AfPcv3VNMYZhWWbM
http://www.britannica.com/EBchecked/topic/333023/conflict-of-laws-%20Oct%203rd%20/http://www.britannica.com/EBchecked/topic/333023/conflict-of-laws-%20Oct%203rd%20/http://www.britannica.com/EBchecked/topic/333023/conflict-of-laws-%20Oct%203rd%20/http://www.britannica.com/EBchecked/topic/333023/conflict-of-laws-%20Oct%203rd%20/


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c) The personal Law:- In terms of which in areas personal to subject like family law:Succession, Marriage, the individual would be governed by the law of his place of originand community to which he belongs and carried that law with him whenever he want. 13

The contribution of Roman legal system towards the evolution of Private International Law isthe rules of Origin and Domicilum i. e. law of natives and alien. A person had his Origin in the

place to which his father or mother (if he is illegitimate) belonged. Domicilium meant therelation between a man and the urban community which he had chosen for his permanentresidence. Roman civil law ( jus civile) being inapplicable to non-citizens, special tribunals had

jurisdiction to deal with multi-state cases. The officers of these specialized tribunals wereknownas the Praetor Peregrini 14.

The Praetor peregrine did not select a jurisdiction whoserules of law should apply. Instead, they"applied" the Jus Gentium. The Jus Gentium was aflexible and loosely-defined body of law

based on international norms. Thus the praetor peregrine essentially created newsubstantivelawfor each case. Today, this is called a"Substantive" solution to the choice-of-law issue 15 .

a. Ancient Era-

All the conditions that could be said to be essential for the development of rules of privateinternational law were present during the Roman Empirehas its own law. To the Romancitizens the Roman law applied and to the citizens of provinces, the provisional lawapplied.Disputesbetween Romans were decided under the Roman Law. But the disputes

between citizens of provinces ( who were aliens of Romans) were decided by a different law,

called law of nations.16

This seems to be the reason that, despite ideal conditions for thedevelopment of private international law during the Roman Empire. Thus, the CorpusJurisCivilis does not contain even a word on the application of foreign law in any situation.

After the fall of Roman Empire:

After the fall of Roman Empire law again became personal. In such system, the rule of law towhich the defendant belonged must prevail. So, there was no scope for the growth of PrivateInternational Law. With the fall of Roman Empire, begins the era of personal laws, whichcovers roughly a period four centuries, from 6 th to 10 th century 17. This ended the territorialityof Roman Law. The implication of law becoming personal was that whenever a person went,

Q&hl=en&sa=X&ei=iG5zUv- NOIGNrQeYzIGgAQ&ved=0CCgQ6AEwAA#v=onepage&q=Pauline%20V.Young%2C%20Scientific%20Social%20Surveys%20and%20Research%2C%20p-148&f=false- Oct 4 th/ 201313Private international Law in India- by F.E.Noronha, p.g 16.14Infra-1515http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law- Sep 28th/ 2013. 16ParasDiwan- Private International Law- Fourth edition.P.g no- 5317 Ibid
http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law-%20Sep%2028th/%202013http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law-%20Sep%2028th/%202013http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law-%20Sep%2028th/%202013


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he carried his law with him. Thus a Saxon was governed by Saxon law and Sabian wasgoverned by Sabian law, where ever he might go. Only under one exception that samecriminal law applies. To all persons, Sometimes, Parties themselves specified the law bywhich their transactions would be governed. It is likely that in such type of situation somecases of conflict of personal laws might have arisen. But no coherent picture is discernible 18 .

In 11 th and 12 th centuries:-

Gradual development of feudalism in North and growth of Italian cities in the South, in 11th and12 thcentury gave rise to the territorial nature of law. A large number of citieslikeFlorence,Bologna, Milan and Padua emerged. Each of these cities was subject todifferentsystem of laws which were applicable to the residents therein. 19

The 11 th and 12 th centuries witness the exit of era of personal laws and replacement by era ofFeudalism in North of Alps and of the city sates to South Alps. It is a remarkable historical

development that two diverse tendencies put the application confined only to era of personallaws to an end. 20 During this period in England, France , Germany and Netherlands and othercountries feudalism came into existence 21 .

b. The Medieval Era:Statutists and Glossators:-

In 476 A.D with the fall of Rome to the Barbarians, an Era of personal law commenced in termsof which the members of each tribe were governed by their respective laws and they lived undertheir own wherever they might be. 22

During the Middle Ages(476-1453 A.D), Feudalism prevailed in Europe which made law again

territorial. As a part of renaissance i.e., revival of classical Graeco- Roman culture of NorthernItaly very particularly Bologna as also Ravenna, Pavia and Verona scholars began to re-studyJustian s forgotten Digest of Civil Law by glossing over the ancient text and writing theirnothings or glosses in the margins thereof (the word Glossa in Latin means a difficultword). 23

The scholars known as Glossators and their 13 th century successors known as post-glossatorsevolved their own solution to the problem arising through the conflict of laws among the citysates of Italy. 24

18 Ibid-1219 Supra- 1120 Supra-1221Supra-1622R.H.Graveson, Vol-1, p-58623 Infra-2124EugenF.Scoles,-Peterhey,ConflictoflawsP-8-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA17&lpg=PA17&dq=Eugene+F.Scoles,+Peter+hey,+Conflict+of+laws+P-8.&source=bl&ots=xeVkHudfmp&sig=ZtUYlChl-Qgta7v-
http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA17&lpg=PA17&dq=Eugene+F.Scoles,+Peter+hey,+Conflict+of+laws+P-8.&source=bl&ots=xeVkHudfmp&sig=ZtUYlChl-Qgta7v-02Pvrd_N83I&hl=en&sa=X&ei=pXFzUqfeHs2TrgeumoGgDA&ved=0CCsQ6AEwAA#v=onepage&q=Eugene%20F.Scoles%2C%20Peter%20hey%2C%20Conflict%20of%20laws%20P-8.&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA17&lpg=PA17&dq=Eugene+F.Scoles,+Peter+hey,+Conflict+of+laws+P-8.&source=bl&ots=xeVkHudfmp&sig=ZtUYlChl-Qgta7v-02Pvrd_N83I&hl=en&sa=X&ei=pXFzUqfeHs2TrgeumoGgDA&ved=0CCsQ6AEwAA#v=onepage&q=Eugene%20F.Scoles%2C%20Peter%20hey%2C%20Conflict%20of%20laws%20P-8.&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA17&lpg=PA17&dq=Eugene+F.Scoles,+Peter+hey,+Conflict+of+laws+P-8.&source=bl&ots=xeVkHudfmp&sig=ZtUYlChl-Qgta7v-02Pvrd_N83I&hl=en&sa=X&ei=pXFzUqfeHs2TrgeumoGgDA&ved=0CCsQ6AEwAA#v=onepage&q=Eugene%20F.Scoles%2C%20Peter%20hey%2C%20Conflict%20of%20laws%20P-8.&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA17&lpg=PA17&dq=Eugene+F.Scoles,+Peter+hey,+Conflict+of+laws+P-8.&source=bl&ots=xeVkHudfmp&sig=ZtUYlChl-Qgta7v-02Pvrd_N83I&hl=en&sa=X&ei=pXFzUqfeHs2TrgeumoGgDA&ved=0CCsQ6AEwAA#v=onepage&q=Eugene%20F.Scoles%2C%20Peter%20hey%2C%20Conflict%20of%20laws%20P-8.&f=false-


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During the 12 th and 13 th centuries in the city states of Italy like Florence, Venice, Genoa, Milanthough nominally the Roman Law was still in force, yet each of them developed theircharacteristic local laws called Statuta. 25

Two basic questions arose frequently :-

a) Whether the statutes of a City States are applicable to foreigners.

b) Whether the effects of Statute extend outside it s te rritory and whether they areapplicable to persons originally from its territory but now residing else where.

13 th to 18 th Century:

With the development of commerce and transaction dispute arose between individuals of twocities of Italy. Jurists tried to solve those problems by focusing on rules of Roman law, who are

known as Glossators. However, the early Glossators were not so muchsuccessful to this end, butthe post-Glossators in 13 thcentury were. The post Glossatorsdiscovered the Statute theory.According to this theory law can be divided into twocategories: I. Real Statute and II. PersonalStatute. This was aslo the age of revival of Roman Law. 26In middle ages the word statute meantany law or custom which prevailed in any city of Italy contrary to Italian Law.

The main purpose of real statute is to regulate things and the purpose of personal statuteis to dealabout personal matters. Real statutes were considered essentially as territorialwhile personalstatutes were personal. The law of person would be applicable unless such personal law wasopposed to the Public Order of the city. Bartolus was a greatestscholar amongst other during

this period. However, this theory was not perfect asclassification of real and personal was notunanimous amongst cities and thedefinition of public order was not clear 27.

4. Origin and Development of Private International Law in England:-

Medieval Era:-

Although from very beginning England had several systems of law and hence the possibility ofconflict of laws and need for their resolution could have existed, but for several historicalreasons, the rules of private international law could not develop before the 17 th century. 28 Thedominant reason for this state of affairs was the steam- rolling rule that to all suits before the

02Pvrd_N83I&hl=en&sa=X&ei=pXFzUqfeHs2TrgeumoGgDA&ved=0CCsQ6AEwAA#v=onepage&q=Eugene%20F.Scoles%2C%20Peter%20hey%2C%20Conflict%20of%20laws%20P-8.&f=false- Oct 7 th/ 201325Private international Law in India- by F.E.Noronha, p.g 1726Supra-12.27Origin and Development of Private International Law- by S.M MasumBillah- 15 th Jan 2010.-http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law28 Supra-26
http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA17&lpg=PA17&dq=Eugene+F.Scoles,+Peter+hey,+Conflict+of+laws+P-8.&source=bl&ots=xeVkHudfmp&sig=ZtUYlChl-Qgta7v-02Pvrd_N83I&hl=en&sa=X&ei=pXFzUqfeHs2TrgeumoGgDA&ved=0CCsQ6AEwAA#v=onepage&q=Eugene%20F.Scoles%2C%20Peter%20hey%2C%20Conflict%20of%20laws%20P-8.&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA17&lpg=PA17&dq=Eugene+F.Scoles,+Peter+hey,+Conflict+of+laws+P-8.&source=bl&ots=xeVkHudfmp&sig=ZtUYlChl-Qgta7v-02Pvrd_N83I&hl=en&sa=X&ei=pXFzUqfeHs2TrgeumoGgDA&ved=0CCsQ6AEwAA#v=onepage&q=Eugene%20F.Scoles%2C%20Peter%20hey%2C%20Conflict%20of%20laws%20P-8.&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA17&lpg=PA17&dq=Eugene+F.Scoles,+Peter+hey,+Conflict+of+laws+P-8.&source=bl&ots=xeVkHudfmp&sig=ZtUYlChl-Qgta7v-02Pvrd_N83I&hl=en&sa=X&ei=pXFzUqfeHs2TrgeumoGgDA&ved=0CCsQ6AEwAA#v=onepage&q=Eugene%20F.Scoles%2C%20Peter%20hey%2C%20Conflict%20of%20laws%20P-8.&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA17&lpg=PA17&dq=Eugene+F.Scoles,+Peter+hey,+Conflict+of+laws+P-8.&source=bl&ots=xeVkHudfmp&sig=ZtUYlChl-Qgta7v-02Pvrd_N83I&hl=en&sa=X&ei=pXFzUqfeHs2TrgeumoGgDA&ved=0CCsQ6AEwAA#v=onepage&q=Eugene%20F.Scoles%2C%20Peter%20hey%2C%20Conflict%20of%20laws%20P-8.&f=false-


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English courts, the rules of English law applied. Thus in the middle ages there never arose a caseof conflict of jurisdiction.

The comparative geographic isolation of England from the continent was an obstacle inshaping private international law in UK. It is true that in England there were two sets of legal rules one

was equity administered by chancery courts and another was common lawadministered bycommon law courts. But this conflict should not be confused with theconflict of choices of law.Equity and Common law were two sets of legal rulesapplicable in the same country.WhenScotland was unified with England a new situation arose. England was influenced by Anglo-Saxon Law while Scotland was influenced by Roman law. Then there weresome obvious conflictof laws with the unification of Scotland and England. The problemof this kind was firstly arisenin Calvins Case .29

In some cases, English courts showed their willingness to take evidence of foreign law. Inseventeenth century drew blank in development of private international law. In seventeenth

century a rule of English Law also laid down that English courts had no competence to takecognizance of foreign suits. At that time England had some special courts which entertainedthecomplaints of foreigners or to hear disputes relating to trade or commerce. In the latter casecourts applied the Law of Merchants which was a universal law and not the law of any country. 30

In that case the English courts had torecognize and apply the laws of Scotland. From that timePrivate International law inEngland has been developed by judicial decisions from case to caseand situation tosituation.The first treatise on Conflict of Laws was written by famous juristJoseph Story (1779-1845). 31 Westlake and Dicey followed him. The main concern of theirwritings is attaining justice in a given case involving foreign element. To be able to do justice in

a case theyhave formulated the Rules of Conflict of Laws.

Thus in the beginning of the seventeenth century, although the English courts could entertainsuits having foreign elements, they were reluctance to entertain them. At this time they showedtheir willingness to enforce foreign judgments.

Modern Era:

In the eighteenth century the British E mpire had reached the dimensions on which, sun neversets . The various constituent parts of the empire had different laws. With the ever growing trade,commerce and intercourse among the peoples of the empire, there was a spate of cases havingforeign element. But, as usual, English courts took time to face the realities squarely. 32

29Calvin;s case- Coke, Sir Edward. "Calvin's Case, or the Case of the Postnati- and Calvin s case Wikipedia.-http://en.wikipedia.org/wiki/Calvin's_Case30Supra-3131 Infra-1632Ibid


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The nineteenth century can justly take the credit for a period in which rules of privateinternational law start taking shape. 33

5. Private International Law in France:-medieval era:-

Statute theory was carried to France in 16th

Century. It was refined and developed there by the jurists. The famous jurists of this time are Dumoulin and D Argentre. By the end of 16 thcenturywith the fall of feudalism and rise of sovereign national state, the conceptof national statutedeveloped in Europe. Then the territorial nature of law came to bewidely accepted. 34

6. Netherlands: Development by Huber in 17 th Century:-medieval era:-

Dutch jurists specially, Max Huber refined statute theory. Huber formulated threemaxims ofPrivate International Law:

The laws of the state have force only within the territorial limits of thesovereignty of the state.

All persons within such territory are bound by the laws of the sovereign.

By reason of comity, every sovereign admits that the consequences of theoperation of a law ina foreign country shall be recognized by the courts of thecountry unless such consequences willnot prejudice the subjects of the sovereign by whom its recognition is sought the formulations ofMax Huber have been named as theory of acquired rights. 35 And theseformulations have

practical influence on the development of conflict of laws in Englandeven today.

7. The Hague Conference:-

The Hague Conference on Private International Law is an intergovernmental organization inHague which is charged with the progressive unification of the rules of private international law.It was the first international body established in Hague in the year 1893. It is the most leadingintergovernmental organization in the field of private international law. It has drawn up to 38international treaties or conventions to overcome legal obstacles faced by individuals andcompanies in cross-border relations and transactions. 36 The great man behind this was tobiasAsser, the only Dutch citizen so far to receive the Nobel Prize (1911). 37 Hague Convention has

produced Seven Conventions, in the field of marriage, divorce, marital property relations, protection of children and Civil procedure. 38

33Ibid34http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law-27th Sep/201335The Indian High Court, 1861.36 Hague Conference-http://www.dfa.ie/home/index.aspx?id=366- Sep29th/ 201337 Ibid-2638THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW-Current problems and Perspectives-ByHANS VAN LOON.- http://www.ehu.es/cursosderechointernacionalvitoria/ponencias/pdf/2002/2002_1.pdf-Sep23rd/2013.


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First, while Asser was certainly a visionary, he was by no means doctrinaire. He strongly believed in the need to overcome legal obstacles to the internationalmobility of people andcommerce. But he also recognized the reality of certainlegal differences of traditions andcultures among different nations. In his view then, unification of private international lawshould not aim at creating one uniform world private law. Rather, it should lead to the buildingof bridges between different legal cultures in other words, towards unity in diversity.

Second, Asser cared almost as much about the process to reach the results the negotiation process as about the end product the treaties. Therefore, he paid much attention to the careful,rigorous preparation of the negotiations, but also to the need to listen, to persuade rather than touse force, to keep all delegates involved. 39

These two characteristics of Asser's approach his aiming at unification while respecting legaldiversity, and his caring for the right proportions of rigour and flexibility in the negotiation

process have remained guiding principles of the work of the Conference for more than a

century now. They are as valid today, I believe, as they were in 1893.

The key to harmony, however, of the first generation of Hague Conventions the principle ofnationality turned out to be a vulnerable one. The idea, as originally formulated by PasqualeMancini, was that Italian or Spanish citizens would be followed by their Italian or Spanish law,wherever they went, as part of their cultural heritage and their personal freedom: their nationallaw would always determine if and under what conditions they could obtain a divorce, havecustody over their children, etc. However, this cosmopolitan nationality concept could not resistthe upcoming nationalism at the time. It did not take long before States started to denounce theHague Conventions of the first generation. 40

8. Germany: Development by Von Savigny in the 19 th Century:

German Jurist Von Savigny made a definite break from the previous approaches to thesubjectand formulated a new theory of Private International Law. Savigny has rejected both the statutetheory and territorial theory of Private International Law. Savigny sformulations can be brief lystated as follows:

Each legal relation has its natural seat in a particular local law and it is thatlaw whichmust be applied when it differs from the law of the court. Thisis the natural law conceptof law predominantly considered to be theconnecting factor of modern PrivateInternational Law.

There are rules of private international law which are universal andcommon to all legalsystems.

39http://www.ehu.es/cursosderechointernacionalvitoria/ponencias/pdf/2002/2002_1.pdf- Sep29th /2013- by HansVan Loon.- P- 2540Ibid-p-25


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The second proposition of Savigny has been subjected to criticism because it is not possible thatPrivate International Law of different countries entails universalizedcharacteristics. But hiscontention on the natural seat of each legal relation made to therules of Private International Lawis more scientific and accurate 41.

9. Evolution in India:-

ANCIENT PERIOD: It is difficult to say that private international law existed in ancient India.It is well-known that much before the advent of the Mughal rule in India, particularly during thegupta and mauryian empires, India had a flourishing trade and commerce with countries far and

beyond, across the high seas and through the inland routes. It seems evident that many suits pertaining to contracts and transactions relating to trade, commerce and other matters must havecome before Indian courts. It is also evident that during the Gupta Empire and mauryian empire,law in India was territorial, though usage and custom too had their place, sometimessupplementing law, sometimes even over riding it 42 .

Medieval era:

with the establishment of the Mughal Empire in India on many matters rules of Muslim lawcame to be applicable however, in most matters, if both the parties were Hindus, Hindu lawapplied and if the both the parties were Muslims then Muslim law applied. In personal matters, inthe entire area of family law, it was personal law of the parties that applied. Hindus weregoverned by the Hindu Law and Muslims were governed by Muslim Law. Thus emerged the eraof personal laws in India 43.

Modern era (Pre-Independence period):

During the British period, from its very beginning to its end various communities in India weregoverned by their personal laws in personal matters. During the British period , India developedcontacts not merely with the countries of British Empire but also with the other countries. Theresult was cases with foreign elements did com adjudication before the Indian courts. Just as inother matters, so in cases having foreign elements, Indian courts decided them mostly byapplying rules propounded in English decisions. Thus, basically the rules of Indian PrivateInternational law are based on the rules of English Private International law. Indian court havealmost blindly, apishly, followed and adhered to English precedents. Probably in a dependentIndia nothing else was possible 44

41http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law-o ct 7th/201342Infra-3243ParasDiwan- private International law- 4 th edition- p.g n0-66.44Supra-37
http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law-http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law-http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law-


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Warren Hasting s regulationof 1772 and Character of 1774: Diversity of Lexfori. 45

Modern Indian law begins in Bengal with warren hasting s regulation of 1772, where in section23 for Civil Law to Be applied in the Bengal mofussil prescribed application of Hindu andMohammedan laws to Hindus and other religious usages or institutions. 46

Thus in 1772, Warren Hastings transformed the principle of personality of laws from it s simpleform of separate jurisdictions, as under the character of 1753, into the sophisticated andcomplicated system whereby the LexFori rather than jurisdiction was diversified.

Unfortunately, It was not immediately adopted by the British Parliament. The Regulating Act,1773 and the Charter of 1774 47 empowered and the newly established Supreme Court at Calcuttato apply English law if suited to Indian conditions.

In 1781, the Act of 1773 was amended by the Act of Settlement. 48This amendment compareswith the warren Hastings regulation of 1772 in that on certain areas of legal relationship, theSupreme Court of Calcutta had a diversified LexFori. It was required to apply to Hindus andMuslims their respective laws on matter relating to inheritance, succession, contract and dealing

between party and party. 49

In 1781, the Bengal chief Justice Sir Elijah Impey added Succession to the matters of personallaw and these matters were re-enacted in Lord Cornwallis regulations of 1793. This legislationwas adopted in Bombay mofussil in 1799, in Madras mofussil in 1802 and Oudh in 1803. 50

In 1861, when the jurisdiction of Supreme Court and mofussil Courts was amalgamated intooriginal and appellate jurisdictions respectively of the High court which also inherited their

45Secretary of State vs Administrator General of Bengal, (1868) 1 BLR (OC) 95.-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA22&lpg=PA22&dq=Secretary+of+State+vs+Administr ator+General++of+Bengal,+private+international+law&source=bl&ots=xeVkHlegoj&sig=IsryPgA3qhayNBCZNEKmCuZO26I&hl=en&sa=X&ei=cBZyUsy1FMjbkgW0Eg&ved=0CCgQ6AEwAA#v=onepage&q=Secretary%20of %20State%20vs%20Administrator%20General%20%20of%20Bengal%2C%20private%20international%20law&f=false- 0ct 25 th/201346 Ibid47Infra-1448The Indian High Court Act, 1861.-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA22&lpg=PA22&dq=Secretary+of+State+vs+Administr ator+General++of+Bengal,+private+international+law&source=bl&ots=xeVkHlegoj&sig=IsryPgA3qhayNBCZNEKmCuZO26I&hl=en&sa=X&ei=cBZyUsy1FMjbkgW0Eg&ved=0CCgQ6AEwAA#v=onepage&q=Secretary%20of

%20State%20vs%20Administrator%20General%20%20of%20Bengal%2C%20private%20international%20law&f=false-o ct 8 th/2013.49 Ibid50M.TierAkolda, Evolution of Personal Laws in India and Sudan, Journal of Indian Law institute, Vol-26-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA21&lpg=PA21&dq=M.Tier+Akolda,+Evolution+of+Personal+Laws+in+India+and+Sudan,+Journal+of+Indian+Law+institute,+Vol-26&source=bl&ots=xeVkHufcjp&sig=JoFkEBB3A9NnVPFoL6wFHoBirP4&hl=en&sa=X&ei=LHhzUpLXFMaBr QeC8YHoCw&ved=0CCoQ6AEwAA#v=onepage&q=M.Tier%20Akolda%2C%20Evolution%20of%20Personal%20Laws%20in%20India%20and%20Sudan%2C%20Journal%20of%20Indian%20Law%20institute%2C%20Vol-26&f=false- Oct 22 nd/ 2013.
http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA22&lpg=PA22&dq=Secretary+of+State+vs+Administrator+General++of+Bengal,+private+international+law&source=bl&ots=xeVkHlegoj&sig=IsryPgA3qhayNBCZNEKmCuZO26I&hl=en&sa=X&ei=cBZyUsy1FMjbkgW0Eg&ved=0CCgQ6AEwAA#v=onepage&q=Secretary%20of%20State%20vs%20Administrator%20General%20%20of%20Bengal%2C%20private%20international%20law&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA22&lpg=PA22&dq=Secretary+of+State+vs+Administrator+General++of+Bengal,+private+international+law&source=bl&ots=xeVkHlegoj&sig=IsryPgA3qhayNBCZNEKmCuZO26I&hl=en&sa=X&ei=cBZyUsy1FMjbkgW0Eg&ved=0CCgQ6AEwAA#v=onepage&q=Secretary%20of%20State%20vs%20Administrator%20General%20%20of%20Bengal%2C%20private%20international%20law&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA22&lpg=PA22&dq=Secretary+of+State+vs+Administrator+General++of+Bengal,+private+international+law&source=bl&ots=xeVkHlegoj&sig=IsryPgA3qhayNBCZNEKmCuZO26I&hl=en&sa=X&ei=cBZyUsy1FMjbkgW0Eg&ved=0CCgQ6AEwAA#v=onepage&q=Secretary%20of%20State%20vs%20Administrator%20General%20%20of%20Bengal%2C%20private%20international%20law&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA22&lpg=PA22&dq=Secretary+of+State+vs+Administrator+General++of+Bengal,+private+international+law&source=bl&ots=xeVkHlegoj&sig=IsryPgA3qhayNBCZNEKmCuZO26I&hl=en&sa=X&ei=cBZyUsy1FMjbkgW0Eg&ved=0CCgQ6AEwAA#v=onepage&q=Secretary%20of%20State%20vs%20Administrator%20General%20%20of%20Bengal%2C%20private%20international%20law&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA22&lpg=PA22&dq=Secretary+of+State+vs+Administrator+General++of+Bengal,+private+international+law&source=bl&ots=xeVkHlegoj&sig=IsryPgA3qhayNBCZNEKmCuZO26I&hl=en&sa=X&ei=cBZyUsy1FMjbkgW0Eg&ved=0CCgQ6AEwAA#v=onepage&q=Secretary%20of%20State%20vs%20Administrator%20General%20%20of%20Bengal%2C%20private%20international%20law&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA22&lpg=PA22&dq=Secretary+of+State+vs+Administrator+General++of+Bengal,+private+international+law&source=bl&ots=xeVkHlegoj&sig=IsryPgA3qhayNBCZNEKmCuZO26I&hl=en&sa=X&ei=cBZyUsy1FMjbkgW0Eg&ved=0CCgQ6AEwAA#v=onepage&q=Secretary%20of%20State%20vs%20Administrator%20General%20%20of%20Bengal%2C%20private%20international%20law&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA22&lpg=PA22&dq=Secretary+of+State+vs+Administrator+General++of+Bengal,+private+international+law&source=bl&ots=xeVkHlegoj&sig=IsryPgA3qhayNBCZNEKmCuZO26I&hl=en&sa=X&ei=cBZyUsy1FMjbkgW0Eg&ved=0CCgQ6AEwAA#v=onepage&q=Secretary%20of%20State%20vs%20Administrator%20General%20%20of%20Bengal%2C%20private%20international%20law&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA22&lpg=PA22&dq=Secretary+of+State+vs+Administrator+General++of+Bengal,+private+international+law&source=bl&ots=xeVkHlegoj&sig=IsryPgA3qhayNBCZNEKmCuZO26I&hl=en&sa=X&ei=cBZyUsy1FMjbkgW0Eg&ved=0CCgQ6AEwAA#v=onepage&q=Secretary%20of%20State%20vs%20Administrator%20General%20%20of%20Bengal%2C%20private%20international%20law&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA22&lpg=PA22&dq=Secretary+of+State+vs+Administrator+General++of+Bengal,+private+international+law&source=bl&ots=xeVkHlegoj&sig=IsryPgA3qhayNBCZNEKmCuZO26I&hl=en&sa=X&ei=cBZyUsy1FMjbkgW0Eg&ved=0CCgQ6AEwAA#v=onepage&q=Secretary%20of%20State%20vs%20Administrator%20General%20%20of%20Bengal%2C%20private%20international%20law&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA22&lpg=PA22&dq=Secretary+of+State+vs+Administrator+General++of+Bengal,+private+international+law&source=bl&ots=xeVkHlegoj&sig=IsryPgA3qhayNBCZNEKmCuZO26I&hl=en&sa=X&ei=cBZyUsy1FMjbkgW0Eg&ved=0CCgQ6AEwAA#v=onepage&q=Secretary%20of%20State%20vs%20Administrator%20General%20%20of%20Bengal%2C%20private%20international%20law&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA21&lpg=PA21&dq=M.Tier+Akolda,+Evolution+of+Personal+Laws+in+India+and+Sudan,+Journal+of+Indian+Law+institute,+Vol-26&source=bl&ots=xeVkHufcjp&sig=JoFkEBB3A9NnVPFoL6wFHoBirP4&hl=en&sa=X&ei=LHhzUpLXFMaBrQeC8YHoCw&ved=0CCoQ6AEwAA#v=onepage&q=M.Tier%20Akolda%2C%20Evolution%20of%20Personal%20Laws%20in%20India%20and%20Sudan%2C%20Journal%20of%20Indian%20Law%20institute%2C%20Vol-26&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA21&lpg=PA21&dq=M.Tier+Akolda,+Evolution+of+Personal+Laws+in+India+and+Sudan,+Journal+of+Indian+Law+institute,+Vol-26&source=bl&ots=xeVkHufcjp&sig=JoFkEBB3A9NnVPFoL6wFHoBirP4&hl=en&sa=X&ei=LHhzUpLXFMaBrQeC8YHoCw&ved=0CCoQ6AEwAA#v=onepage&q=M.Tier%20Akolda%2C%20Evolution%20of%20Personal%20Laws%20in%20India%20and%20Sudan%2C%20Journal%20of%20Indian%20Law%20institute%2C%20Vol-26&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA21&lpg=PA21&dq=M.Tier+Akolda,+Evolution+of+Personal+Laws+in+India+and+Sudan,+Journal+of+Indian+Law+institute,+Vol-26&source=bl&ots=xeVkHufcjp&sig=JoFkEBB3A9NnVPFoL6wFHoBirP4&hl=en&sa=X&ei=LHhzUpLXFMaBrQeC8YHoCw&ved=0CCoQ6AEwAA#v=onepage&q=M.Tier%20Ako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respective laws, a new twist was added to variation of subject matter. Before 1861, personallaws and their subject-matter varied from supreme court to mofussil courts. In 1861, however,the variation could be seen in the original and appellate jurisdiction of High Court. 51

10. Genesis of Private International Law in India:

There has been a genesis and evolution both in Civil law countries traceable to Roman Law andin the common law countries from the 18 th century 52.

In India, from the commencement of British rule 1772, there has been an evolution of rules toregulate inter-personal conflict of laws considering the personal of different communities inIndia. 53

Indian, however has had an older development of Private International Law peculiar to historical, political and social circumstances.

Before Independence and till the recognition of states, India was a federation between BritishIndia and native Indian Princely States, having distinct legal systems. As a result, conflictualquestions often arose in the area of law and administration of justice particularly the recognitionand enforcement of foreign jud gments because at that time a judgment passed in princely statewas foreign to court system of British India which we have now inherited. The best refectionof this is seen in the provisions of section 13 of Civil procedure Code of 1908 dealing withrecognition of foreign judgments. India thus had inter-state Conflict of laws and abundant pre-independence case law of the Indian high courts deals with it. 54

Having attained Independence , the growth of true Indian law on the principle and subordinate

questions of private international law is inevitably hampered.

Conflict of Laws again arose soon after the Independence with the formation of Pakistan , theabrupt vivisection of common legal system and the resultant effects on the pending litigation andthe rights of I ndian s divided population. Genesis and evolution of Private International Law inIndia has got really taken place. It is rather the narration of how English rules of privateInternational Law have been applied in Indian conflict cases. The evolution was going inEngland. This continued even after Independence. 55

51Supra-4852http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law- Oct/5th 201353supra-24file:///E:/files/Academics/9th%20sem/conflict%20of%20laws/pri%20int%20law/Private%20international%20law%20in%20India%20%20adequacy%20of%20principles%20in%20comparison%20...%20-%20F.%20E.%20Noronha%20-%20Google%20Books.htm- Sep 27 th/201354 Supra-5055

Ibid
http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law-http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law-http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law-


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Modern era:

But now after independence it is not at all necessary or logical to ape any country and follow its

rules. Now we are in a position to develop the rules of private international law in accordancewith the social needs and circumstances of our contemporary society and in accordance with theideas and notions of world justice. 56

11. Theories of Private International Law( Theories and Developments incontemporary Times):-

Doctrinal matter in Private International Law was virtually monopolized by Civil Law thinkers.In Civil Code Nations, Private International Law is a part of the Code. Over nearly 200 centuries,therefore, the development of the Law in this field in Civil Law Nations consisted of new

provisions formulated in civil new codes or their re-formulation in new or revised codes. 57

It is only in the recent times that theoretical analysis of common law problems has been takenover by the common law jurists particularly Americans 58.

a) Statutory Theory:

The statute theory is probably the most ancient theory. In it s original version, it is a product ofthe 13 th century Italian theories. It was propounded by Bartoluswho may be called the father ofthis theory.Personal law may be applied if it is not opposed to public policy or public order. 59

b) International Theory:

There are rules of conflict of laws which are universaland common to various legal systems ofthe world. This theory rejected the statute theory as well as the territorial theory.Savigny said,solution of the problem did not lie in classifying the loss on the basis of their object, but in theability to find out the seat of each legal relationship, as each legal relationship has its natural seat

in some local law. 60 Therefore, even if the law of the forum is the law of the place which is theseat of legal relationship, it will be the later which will be applicable . The international treatyhas been criticized on many counts. The most damaging criticism of this theory is the its startson the assumption that there is uniformity in the loss of the countries on the characterization of

legal relations, why in fact it is not so. For instance, reach of marriage promise is regarded as breach of contract in some countries while in some it is regarded as a tort. In such a situation, itmay be difficult to find out the natural seat of the legal relationship. Then, in our contemporary

56Supra-3257 Infra- 5058Ibid59Ibid60 Supra-44


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world there are still more than one international systems, of which the important ones are, Thecommon law system and civil law system. 61

c) The Territorial or Acquired Rights Theory:

Territorial and Vested rights Theory was originally formulated by the Dutch jurist UlrichHuber(1635-1694) in his book De Conflict Legam. Later it was elaborated by Dicey inEngland and by Beale in U.S. 62

As expounded in Holland s jurisprudence, this theory is based on the principle of territoriality ofadministration of law, that judges can only enforce the law and recognize the judgment of theirown legal system to which they belong or circumscribed by the territory.Courts of sovereignstate donot apply foreign law but merely recognize the consequences of the operationof a foreignlaw. This theory tries to reconcile the territoriality of a law andthe need for private internationallaw. Dr. Cheshire has vehemently criticizedthis theory as being, unnecessary , untrue , and

unhelpful .63

d) Local Law theory:

Local Law Theory is expounded by Walter Wheeler Cook in his book Logical and Legal Basisof Conflict of Laws 1942. This theory is fully founded on Common Law genius namely thatLaw is not deducted from logical reasoning of any philosophers and jurists, any inherent

principle but simply an observationof what judges have done in the past in order to prophecyhow they will probably act in the future. 64

This theory is a slight variation from territorial theory.The gist of this theory is that the court

recognizes and enforces a local rightthat is created by its own law. But as the dispute in questionhas a foreignelement the court would necessarily apply the rule of the forum that would

beapplied in the case of a purely domestic dispute. 65 But for reasons of socialexpedience and practical convenience it takes into account the laws of aforeign country in which thedecisivefacts have occurred. Cheshire hasobserved that this theory is a sterile truism . Sterile

because it affords no basis for the development of a system of Private International Law. 66

61Supra-3262F.Scoles& peter Hay, Conflict of laws, ch-2, p-5-14.-

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e) The Theory of Justice:

The approach of English courts to privateinternational law is pragmatic and ethical. It hassociological, ethical and legalaspects towards the end of justice. According to Dr. Graveson, the

basis of Public International Law is sociologically, in the international need for fair treatment in

the private transactions of individuals, ethically, in the desire of English courts to do justice;andlegally,in the obligation of their oath inoffice. In essence the rules of Private InternationalLaw in England are madefrom the precedents with the ultimate view of doing justice. 67

f) The American Revolution:-

The major theoretical developments of private international law over the last few decades havetaken place in the U.S.A. Indeed they have been described as a new American revolution. 68 Avariety ways of tackling choice of law problems has been put forward in the USA, they tend tohave a similar basic characteristic- and analysis of the issues arising in a particular case with a

concern devicethe appropriate rule for this more narrowly formulated problem as compared withthe far more broadly based conventional choice of law rules. This analysis of issues in individualcases requires the court to examine the particular substantive rules of law in conflict in the case,to identify the policies at issue and to resolve any conflict so identified by choice of law rulesappropriate to that narrowly defined conflict. 69

12. Conclusion:

In my general Sense, The Conflict of laws (or private international law) is a set of proceduralrules that determines which legal system and which jurisdiction apply to a given dispute. Therules typically apply when a legal dispute has a "foreign" element such as a contract agreed to by

parties located in different countries, although the "foreign" element also exists in multi- jurisdictional countries such as the United Kingdom, the United States, Australia and Canada.

The term conflict of laws itself originates from situations where the ultimate outcome of a legaldispute depended upon which law applied, and the common law courts manner of resolving theconflict between those laws. In civil law, lawyers and legal scholars refer to conflict of laws as

private international law. Private international law has no real connection with publicinternational law, and is instead a feature of local law which varies from country to country.TheHague Conference on Private International Law, though it has a history of well over a century,has been going through a rapid and profound development in recent years. This reflects the

m1zUsnwBIaJrgeTv4HYCQ&ved=0CDkQ6AEwAw#v=onepage&q=C.K%20Allen%2C%20The%20Law%20in%20Making%2C%201997&f=false- Oct /27 th 201367http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law- by S M MasumBillah15 January 2010..68See kegel (1964) II Hague Recueil 95.69http://www.cambridge.org/us/academic/subjects/law/private-international-law/confluence-public-and-private-international-law-justice-pluralism-and-subsidiarity-international-constitutional-ordering-private-law- By AlexMills- Confluence of Private International Law.
http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA14&lpg=PA14&dq=C.K+Allen,+The+Law+in+Making,+1997&source=bl&ots=xeVkHucgip&sig=sxCndAPWS1J-t8eCK2KX4cWp-os&hl=en&sa=X&ei=-m1zUsnwBIaJrgeTv4HYCQ&ved=0CDkQ6AEwAw#v=onepage&q=C.K%20Allen%2C%20The%20Law%20in%20Making%2C%201997&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA14&lpg=PA14&dq=C.K+Allen,+The+Law+in+Making,+1997&source=bl&ots=xeVkHucgip&sig=sxCndAPWS1J-t8eCK2KX4cWp-os&hl=en&sa=X&ei=-m1zUsnwBIaJrgeTv4HYCQ&ved=0CDkQ6AEwAw#v=onepage&q=C.K%20Allen%2C%20The%20Law%20in%20Making%2C%201997&f=false-http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law-http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law-http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA14&lpg=PA14&dq=C.K+Allen,+The+Law+in+Making,+1997&source=bl&ots=xeVkHucgip&sig=sxCndAPWS1J-t8eCK2KX4cWp-os&hl=en&sa=X&ei=-m1zUsnwBIaJrgeTv4HYCQ&ved=0CDkQ6AEwAw#v=onepage&q=C.K%20Allen%2C%20The%20Law%20in%20Making%2C%201997&f=false-http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA14&lpg=PA14&dq=C.K+Allen,+The+Law+in+Making,+1997&source=bl&ots=xeVkHucgip&sig=sxCndAPWS1J-t8eCK2KX4cWp-os&hl=en&sa=X&ei=-m1zUsnwBIaJrgeTv4HYCQ&ved=0CDkQ6AEwAw#v=onepage&q=C.K%20Allen%2C%20The%20Law%20in%20Making%2C%201997&f=false-


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Documents

History and Evolution of Private International Law- (Including India)