This comprehensive exploration delves into the intricate world of Private
International Law, navigating the evolution of legal theories from ancient times
to contemporary complexities. From the fundamental dilemma of conflicting laws
arising in cross-border transactions to the nuanced examination of Statute
Theory, International Theory, Territorial Theory, Local Law Theory, and the
profound Theory of Justice by Dr. Graveson, this study illuminates the diverse
approaches taken by legal systems globally. Each theory, with its unique
strengths and shortcomings, offers a lens into the challenges faced by
international jurisprudence. We scrutinize these theories, revealing their
impact on cases spanning multiple jurisdictions, underscoring the perpetual
quest for equitable and just legal resolutions in our interconnected world.
In the ancient times, the people did not know that there existed other
countries, all the transactions were then limited to the territorial boundaries
of that country. However, as more and more discoveries were made people starting
realising that there is outside world, which led to travel, trade, communication
between people of 2 countries. But, when there was a conflict between two
individuals of different countries the question arose was which country's law
should you apply to solve the dispute.
For example, there is a contract between A (French) and B (English) related to
cosmetics from South Korea. The contract was signed in Spain. Now, you see that
there are 4 countries involved in this transaction, if the case is before Indian
Courts, the number of countries' involvement increases. Which country's law
should you apply - Should be English or French law for it is where the parties
are domiciled? Should it be South Korea for the goods are from there? Should the
Spanish law be applied for the contract was signed in Spain? Or Should Indian
Court's apply Indian Law?
This problem is the problem of conflict of laws. It is a conflict between
applicability of the domestic laws of various countries to a particular matter.
This situation led to the development of a new system of Private International
Law. Private International Law is also known as Conflict of Laws.
What is Private International Law?
Private International Law is a system of international law regulates the
disputes between the parties of 2 or more different countries. It is called
Conflict of Laws also. The term "conflict of law" was first used by Ulrich Huber
Private International Law as per Cheshire is that part of the law which comes
into play when the issue before the courts affects some facts, events or
transaction that is so closely connected with a foreign system of law as to
necessitate recourse to that system.
Under Private International Law, we have to answer 3 questions in every case.
These 3 questions are as follows:
- Jurisdiction - Does the Court have the jurisdiction to take up the case?
- Choice of law - Which Country's law is applicable in this particular case?
- Recognition of Foreign Judgment - Can the Court recognize and enforce the Foreign Court's decision in their country?
These are the 3 primary question which have to be answered in every case that is
of private individuals belonging to different country.
Theories of Private International Law?
In every case which involved parties of different nationalities, the central
question that arises is - which country's law to apply to resolve the matter.
Depending upon the basis of application of law of the countries, there have been
5 theories that expound in detail about which should be the suitable law.
The following are the 5 theories about which we will learn more in the article:
- Statute Theory
- International Theory
- Territorial Theory
- Local Law Theory
- Justice Theory
- Statute Theory
Statute Theory was given by Bartolus in the 13th Century. It is the oldest and
the most primitive of the theories of private international law.
The theory was actually made up to resolve the conflicts of law between
City-states of Italy and between Italy and other countries.
Why was there an issue?
Italy had 8 City-States like Milan, Pisa, Palermo etc. Now, whenever a person
from Milan went to Palermo, there was a question - Whether the laws of Milan
would apply to him even in Palermo (foreign land) or would the laws of Palermo
would apply to anyone within its territory?
To answer this question, Bartolus suggested that we classify statutes into 2
types and decide their applicability on what type of statutes they are.
First, he created 2 types of statutes namely:
- Statuta Personalia - Personal Statutes
Personal statutes are those statutes that are related to persons, like the Hindu
Marriage Act, Muslim Marriage Dissolution Act, Adoptions and Maintenance Act,
Guardians and Wards Act, Indian Citizenship Act etc.
These personal statutes are applicable everywhere a person goes.
Eg: If a person from India goes to England, he shall carry his personal laws
with him. So, even if he is in England, he will continue to be governed by the
laws of India.
- Statuta Realia - Real Statutes
Real Statutes are statutes that relate to things and when we say things we
specifically mean, immovable property. Movable property is governed by the
Real statutes are applicable only within the territory of their enactment. The
applicability is where the propety lies, that country's real statutes would
Eg: If a person from China buys a property in USA, then the property will be
governed by American Law as that is where the property lies.
There were primarily, only 2 types but recognising problems with regard to
classification, he introduced a third category, Mixed Statutes - Statuta Mixta.
Mixed Statutes are related to acts like contracts, torts etc. And these are
applicable where they are signed or performed.
There was a problem of classifying statutes, i.e., to decide whether one statute
is real or personal was a question that was not answered by him. Eg: Whether
transfer of property to son by father is to be governed by real statutes because
immovable property is involved or should it be governed by personal succession
laws because there the parties are father and son?
To answer this, he developed that to understand whether a statute is real or
personal you must look at its grammatical construction.
If persons are mentioned first then it is a personal statute, like Primogenitus
succeedat in omnibus - Let the first born succeed in all things.
To give Indian examples - Hindu Marriage Act, Special Marriage Act, Parsi
Succession Act, Indian Citizenship Act etc. are all personal statutes.
If things are mentioned first, then it is a real statute. Eg: Bona decedentium
veniant in primogenitus - let the goods of the decedents go to the first born.
Indian examples - Transfer of Property Act, RERA Act, Land Revenue Act,
Registration Act etc.
The French tried to improve the theory given by Bartolus and tried to make it
more suitable to their needs. The most important French statutists are Charles
Dumoulin and D'Argentre.
Charles Dumoulin emphasised more on the volition of the parties. He said that
the only applicable law was the one intended by the parties. So, if two parties
married in Netherlands, it means that Netherlands law will apply because they
intended to be under that law by marrying there. Or if a contract mentios9 that
disputes will be decided in the court of Japan then it is understood that
Japanese law will apply as it was intended by the parties.
D'Argentre, on the other hand, stressed more upon autonomy of the country. He
said that the applicable law is the law of the land where property lies ( lex
situs) . He propagated that whenever there isna confusion if a statute is real
or personal, consider that to be real.
- Problem of classifying statutes
There is a problem of classifying statutes. Cheshire himself has agreed to this
and has questioned, If there is a law that regulates the capacity of a person to
transfer property to his father? Is it personal or real?
- Lacks a scientific basis
There is no fixed scientific method of deciding which statute is what type and
it does not provide a solid ground on which a sound and logical decision can be
made. Deciding whether a statute is real or personal statute on the basis of
what comes first in the name of statute is not a wise idea. He does not even say
look at the crux of Act, but on what comes first in the name of the Act.
Eg: If the name of an Act is Transfer of Property (Regulation of Capacity) Act,
2023, then according to his logic it is a real statute but in reality it is a
- Incomplete and ambiguous
Incomplete and ambiguous as per Savigny. The theory does not tell you how to
apply the laws; there is confusion if a particular statute is real or personal.
If property is situated in multiple lands, the laws of the multiple countries
will be applied to every property where it is situated. It is burdensome and
Von Savigny was the founder of the international theory. This theory is also
called the theory of Natural Seat of Obligation. Von Savigny said that keeping
in mind the international comity, the application of laws should be uniform.
Apply customary and conventional laws to resolve disputes between parties of two
He devised a scientific method of deciding which country's laws to apply. There
is a a legal system to which the facts of the case are naturally connected to
and that is the NATURAL SEAT.
Natural Seat can be determined by the following factors:
- The domicile of a person affected by the legal relation
- The place where a thing, which is the object of a legal relation is situated
- The place where a juridical act is done
- The place where a Tribunal sits
Eg: Let us assume that in a contract the parties are A (French) and B (Russia).
The contract is regarding toys from China , which is signed in China and when
there was a breach of contract the Chinese Court has been approached.
When you see the determinants, China is where the goods belong, contract was
signed and where the tribunal sits. So, China is the Natural Seat and it is the
most applicable law. Savigny emphasised that even if the case is before the
Court of another country (like France or Russia), the court should still
consider the law of the natural seat (China).
This theory gives importance to the will of the parties. Eg: In case of buying a
land, if the person buys a land in foreign country it is implied that he is
accepting to be governed by foreign law.
- False assumption that laws are uniform everywhere
Savigny said to apply customary laws of the nation, but what he forgets is that
these laws are not uniform everywhere. In USA gay marriages are legalized and so
are valid, but in India it is not.
- Failure to recognize religious and ethnic diversities
India being a small part of the world has so many religions and so many ethnic
groups and they all have their different practices. India has still not been
able to devise a uniform law for all these groups. Now, world is much larger and
it is therefore, almost impossible to have uniform laws all over the world.
This theory has been called Theory of Acquired Rights. This theory has been
founded by Ulrich Huber and supported by Beale (USA) and Dicey (England).
The propounders of this theory suggest that the Courts do not apply foreign law
but apply the consequences of operation of foreign law. What this statement
essentially means is that the Courts apply their own country's law, no matter
what. However, if a person gets any right by operation of foreign law, the
courts can enforce that right.
Eg: A and B are cross cousins from India, they know that this is not valid in
India, so they get married in Dubai, live there for a while and then come back
as a married couple. Now, Indian Courts will accept their marital rights
acquired by the operation of the law of Dubai. They do not apply law of Dubai,
but a right acquired due to the operation of Dubai law.
Ulrich Huber's principles:
Dalrymple v. Dalrymple case:
- The laws of a State have absolute force within, but only within the
territorial limits of its sovereignty - This statement says that the laws of
a country will apply only within the country.
- All persons who, whether permanently or temporarily are found within the
territory of a Sovereign are deemed to be his subjects, and as such are
bound by his laws - Whenever a person is in a foreign country, it means that
he accepts to be bound by the law of that foreign country. To understand
this better the case of State of Maharashtra v. MH George . George was
German citizen whose flight had a layover in India for only a few hours ago.
During that time, his gold was seized for it was more than the quantity
allowed in India. He was held liable for smuggling of gold from India,
although the gold was not purchased in India and not for the purpose of
selling in India. He was only waiting to board another flight from India.
This case shows that, once you are in a foreign country, you have to obey
the laws of that country
- By reason of Comity, however, every Sovereign admits that a law which
has already operated in the country of its origin shall retain its force
everywhere, provided that this will not prejudice the subjects of the
Sovereign by whom its recognition is sought. - To maintain peaceful and
friendly relations, countries enforce each other's rights provided that it
does not affect its public order. E.g.: A and B are two Indian Boys who are
in love. They know that gay marriages are not legal in India, so they go to
USA and get married. When they come back to India and seek to enforce their
marital rights, Indian Courts will not recognize their marriage for it is
against public policy of India.
Ms. Gordon (G) was a Scottish woman and Mr. Dalrymple (D) was an English man.
They both fell in love and made a contract of marriage as suggested by D in his
letter. In the next letter she also wrote that she accepted to be his wife. D
suggested that this marriage be kept a secret and she agreed.
D moved to
Scotland with her and lived life as a married couple. However, few years later
she wanted to tell his parents that they were married and she told them.
Considering this a breach of contract, D broke the marriage and went back to
England and married another woman. G brought a case of restitution of conjugal
rights against him in England. The question before the court was if they were
married in the first place?
The English Court looked at the validity of the marriage in Scottish laws
- Verbal assent of the parties (offer and acceptance in the letter)
- Contract of marriage ( Mentioned in the letter)
- Public acknowledgement of the marriage ( She told his parents and thy
lived like a married couple in Scotland)
The marriage of D &G fulfilled all the essentials and therefore, was valid in
Scotland. So, the English Courts arrived at the conclusion that since the
marriage was a valid marriage, the restitution can be allowed.
What courts recognised and enforced here was not the Scottish law, but the
marital rights arising from the operation of the Scottish law.
Local Law Theory
Founder - Walter Wheeler Cook
- Too much importance on sovereignty - Forgets international comity. What
is applied is as per the Private International law of that state only, they
are not recognising any foreign law. So, no sovereignty is affected.
- Does not identify the Choice of law of the Parties - The parties may
want to be governed by some other forum. This right is not recognised here.
- Creates practical difficulties and confusion - Can lead to enforcement
of rights that are not recognised by the foreign law.
When you do not allow the choice of law could lead to enforcement of rights that
are not recognised by the foreign law and create confusion. E.g.: Under
Pakistani law a Muslim wife can claim maintenance from husband only till the
completion of IDDAT (in general for a wife it is 3 months, for a widow it is
four lunar months and 10 days and for a pregnant woman until she gives birth
which is 9 months + 3 months of IDDAT). But English courts have power to pass
maintenance order against the Pakistani domicile husband residing in England if
he had divorced his wife
- Creates a vicious circle - When there are parties from multiple
countries involved, which law will you apply?
Courts apply their own rules to the total exclusion of foreign rules. Cook tried
to make improvements in the Territorial Theory and therefore, formed this
theory. HE suggested that no matter what, courts must apply the law of their
land only. However, if there is foreign party involved create rights as per the
law of the land that are analogous or similar to that foreign law.
How is it different from Territorial Theory? - Foreign law is recognised and own
local rights analogous to the same are applied.
The courts enforce not a foreign right, but a right created by their domestic
law. What the Courts enforce here is the rights as per their own domestic law,
but looking at the foreign law. E.g.: A and B are citizens of England, married
in England and lived in India from some years.
The wife files a complaint for
marital rape in India. So, the Indian Court will now look into where they got
married (England) and see what the English law says about it, the English law recognises the offence of marital rape. Then, the court looks into its own laws,
they find that there is no offense of marital rape in India and marriage is a
sacrament where the parties have to fulfil their duty to procreate. So, it will
dismiss the case. So, what is still being applied is our own law.
The theory says apply what has been applied in the previous cases of domestic
nature. This upholds sovereignty. Cook suggests even if there is foreign party
involved look at him like your own citizen and give the same decision which you
would give in case of 2 domestic parties. There is no wisdom in overruling your
own decision based on its local law due to some discrepancy with a foreign law.
Theory Of Justice
- Leads to futile intellectualism - What you are applying at the end of the day is your own country's law, looking at other country's laws and trying to understand them is a futile exercise of mind.
- Ambiguous - It simply says consider foreign laws does not say how, what are the limits, and many such questions are left unanswered by the proponents and this leads to ambiguity.
- Too much emphasis on precedents - Apply what has already been applied, times may change and there may be a need to overrule the previous decisions to adapt to the dynamic society.
- Ignores the need for evolution of law - As times change, the laws need to evolve. A decision given in 1800 might not be relevant anymore.
Dr. Graveson's Theory of Justice emphasizes the delivery of true justice by
considering legal precedents, good conscience, and equity. In this framework,
the application of the law is pivotal in ensuring justice prevails. Private
International Law (PIL) aligns with this theory through three core promises:
SociologicaL: In the sociological realm, PIL pledges to uphold the principle of fair treatment for all, not only nationally but also on an international scale. This commitment ensures that individuals, regardless of their origin, receive just and equal treatment under the law.
Ethical: Ethically, PIL places a significant responsibility on judges. Through rigorous training and ethical practices, judges are entrusted with the task of administering justice. Their decisions are guided by a deep sense of morality, ensuring fairness and impartiality in every case they preside over.
Legal: Legally, the foundation of PIL lies within the oath taken by judges. This solemn promise binds judges to the legal system's principles, ensuring that their decisions are rooted in the law and guided by justice. Upholding the law becomes synonymous with upholding justice, and this legal commitment forms the backbone of the PIL framework.
In summary, Dr. Graveson's Theory of Justice underscores the importance of legal
precedent, good conscience, and equity in delivering justice. PIL, in keeping
with this theory, embraces three fundamental promises: sociological fairness,
ethical integrity in judicial practices, and unwavering legal commitment,
ensuring the principles of justice are upheld without bias or prejudice.
In the intricate tapestry of global legal frameworks, the evolution of Private
International Law theories mirrors the ever-changing landscape of international
relations. From Bartolus' pioneering Statute Theory to the sophisticated
analyses of Von Savigny, Ulrich Huber, Walter Wheeler Cook, and the profound
Theory of Justice championed by Dr. Graveson, these paradigms reflect humanity's
quest for fairness and justice. The complexity of cross-border disputes
necessitates a delicate balance between national sovereignty, individual rights,
and international harmony.
While each theory offers insights, none stands alone
as a panacea; rather, they collectively illustrate the ongoing discourse within
the legal community. As we tread into an increasingly interconnected future, the
pursuit of true justice remains the guiding star, urging legal scholars and
practitioners alike to navigate this intricate terrain with wisdom, empathy, and
an unwavering commitment to equity.
- Theories Of Private International Law And Their Application, https://ijirl.com/wp-content/uploads/2021/12/THEORIES-OF-PRIVATE-INTERNATIONAL-LAW-AND-THEIR-APPLICATION.pdf
- Cheshire And North's Private International Law
- Paras Diwan - Private International Law