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23/11/2018 The Rules To Be Followed By A Court In Applying Appropriate Law In Cases Having A Foreign Party

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Private International Law or Conflict of Laws is that branch of law, private in some states,
public in others, regulating all lawsuits
involving a foreign law element where a difference in result will occur depending on which
laws are applied as the lex causae. Firstly, it is concerned with determining whether the
proposed forum has jurisdiction to adjudicate and is the appropriate venue for dealing with
the dispute, and, secondly, with determining which of the competing state's laws are to be
applied to resolve the dispute. It also deals with the enforcement of foreign judgments.

Choice of law rules


Courts faced with a choice of law issue have a two-stage process:
1. the court will apply the law of the forum (lex fori) to all procedural matters (including,
self-evidently, the choice of law rules); and
2. it counts the factors that connect or link the legal issues to the laws of potentially
relevant states and applies the laws that have the greatest connection, e.g. the law of
nationality (lex patriae) or domicile (lex domicilii) will define legal status and capacity, the
law of the state in which land is situated (lex situs) will be applied to determine all
questions of title, the law of the place where a transaction physically takes place or of the
occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law
selected when the matter is substantive, but the proper law has become a more common
choice.

For example, suppose that A who has a French nationality and residence in Germany,
corresponds with B who has American nationality, domicile in Arizona, and residence in
Austria, over the internet. They agree the joint purchase of land in Switzerland, currently
owned by C who is a Swiss national, but they never physically meet, executing initial
contract documents by using fax machines, followed by a postal exchange of hard copies. A
pays his share of the deposit but, before the transaction is completed, B admits that
although he has capacity to buy land under his lex domicilii and the law of his residence, he
is too young to own land under Swiss law. The rules to determine which courts would have
jurisdiction and which laws would be applied to each aspect of the case are defined in each
state's laws so, in theory, no matter which court in which country actually accepts the case,
the outcome will be the same (albeit that the measure of damages might differ from
country to country which is why forum shopping is such a problem). In reality, however,
moves to harmonise the conflictual system have not reached the point where
standardization of outcome can be guaranteed. The status of foreign law.

Generally, when the court is to apply a foreign law, it must be proved by foreign law
experts. It cannot merely be pleaded, as the court has no expertise in the laws of foreign
countries nor in how they might be applied in a foreign court. Such foreign law may be
considered no more than evidence, rather than law because of the issue of sovereignty. If
the local court is actually giving extraterritorial effect to a foreign law, it is less than
sovereign and so acting in a way that is potentially unconstitutional.

The theoretical responses to this issue are:


(a) that each court has an inherent jurisdiction to apply the laws of another country where
it is necessary to achieving a just outcome; or Top

(b) that the local court creates a right in its own laws to match that available under the
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(b) that the local court creates a right in its own laws to match that available under the
foreign law. This explanation is sustainable because, even in states which apply a system of
binding legal precedents, any precedent emerging from a conflicts case can only apply to
future conflicts cases. There will be no ratio decidendi that binds future litigants in entirely
local cases.

Once the lex causae has been selected, it will be respected except when it appears to
contravene an overriding mandatory rule of the lex fori. Each judge is the guardian of his or
her own principles of ordre public (public policy) and the parties cannot, by their own act,
oust the fundamental principles of the local municipal law which generally underpin areas
such as labour law, insurance, competition regulation, agency rules, embargoes, import-
export regulations, and securities exchange regulations. Furthermore, the lex fori will
prevail in cases where an application of the lex causae would otherwise result in a
fundamentally immoral outcome, or give extraterritorial effect to confiscatory or other
territorially limited laws.

In some countries, there is occasional evidence of parochialism when courts have


determined that if the foreign law cannot be proved to a "satisfactory standard", then local
law may be applied. Similarly, judges might assume in default of express evidence to the
contrary that the place where the cause of action arose would provide certain basic
protections, e.g. that the foreign court would provide a remedy to someone who was
injured due to the negligence of another. Finally, some American courts have held that local
law will be applied if the injury occurred in an "uncivilized place that has no law or legal
system." See Walton v. Arabian American Oil Co., 233 F.2d 541 (2d Cir. 1956). If the case
has been submitted to arbitration rather than a national court, say because of a forum
selection clause, an arbitrator may decide not to apply local mandatory policies in the face
of a choice of law by the parties if this would defeat their commercial objectives. However,
the arbitral award may be challenged in the country where it was made or where
enforcement is sought by one of the parties on the ground that the relevant order public
should have been applied. If the lex loci arbitri has been ignored, but there was no real and
substantial connection between the place of arbitration and the agreement made by the
parties, a court in which enforcement is sought may well accept the tribunal's decision. But
if the appeal is to the courts in the state where the arbitration was held, the judge cannot
ignore the mandatory provisions of the lex fori.

Choice of Law
Choice of law is a procedural stage in the litigation of a case involving the conflict of laws
when it is necessary to reconcile the
differences between the laws of different states, and in the United States between
individual federated states. The outcome of this process is potentially to require the courts
of one jurisdiction to apply the law of a different jurisdiction in lawsuits arising from, say,
family law, tort or contract.
1. Jurisdiction. The court selected by the plaintiff must decide both whether it has the
jurisdiction to hear the case and, if it has, whether it is the most convenient forum (the
forum non conveniens issue relates to the problem of forum shopping) for the disposition
of the case. Naturally, a plaintiff with appropriate knowledge and finance will always
commence proceedings in the court most likely to give a favourable outcome. This is called
forum shopping and whether a court will accept such cases is always determined by the
local law.

2. Characterization. The court then allocates each aspect of the case as pleaded to its
appropriate legal classification. Each such classification has it own choice of law rules but
distinguishing between procedural and substantive rules requires care.

3. The court then applies the relevant choice of law rules. It should be noted that in a
few cases, usually involving Family Law, an incidental question can arise which will
complicate this process.

The Choice of Law Stage


The "traditional approach" looks to territorial factors, e.g. the domicile or nationality of the
parties, where the components comprising each cause of action occurred, where any
relevant assets, whether movable or immovable, are located, etc., and chooses the law or Top
laws that have the greatest connection to the cause(s) of action. Even though this is a very
flexible system, there has been some reluctance to apply it and various "escape devices"
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flexible system, there has been some reluctance to apply it and various escape devices
have developed, which allow courts to apply their local laws (the lex fori) even though the
disputed events took place in a different jurisdiction. The parties themselves may plead the
case either to avoid invoking a foreign law or to agree the choice of law, assuming that the
judge will not of his or her own motion go behind the pleadings. Their motive will be
pragmatic. Full-scale conflict cases take longer and cost more to litigate. However, the
courts in some states are predisposed to prefer the lex fori wherever possible. This may
reflect the belief that the interests of justice will be better served if the judges apply the law
with which they are most familiar, or it may reflect a more general parochialism in systems
not used to considering extraterritorial principles of law. One of the most common judicial
strategies is to skew the characterization process. By determining that a claim is one
involving a contract instead of tort, or a question of family law instead of a testamentary
issue, the Court can change the choice of law rules.

The rules of private international law which are explained herein below are incidental to
law and do not decide the law. In other words these are connecting rules which help the
courts to decide which law law should be applied when a party is a foreign party.

Status
Status is relevant for a wide array of issues. Self-evidently, unless the proposed litigant has
legal personality, there will be no jurisdiction. It will also be relevant to immigration,
entitlement to social security and similar benefits, family law, contract, etc. The choice of
law rule is the law of the domicile (lex domicilii) if the forum is common law, or law of
nationality (lex patriae) or habitual residence if the forum is civil law applies to determine
all question of status and its legal attributes. The lex fori determines the domicile,
nationality or habitual residence, and applies that law to establish an in rem set of rights
and capacities. Thus, under some laws, the status of illegitimate affects the rights of
inheritance in the case of an intestacy, etc. As to corporations, the choice of law rule is the
law of incorporation (the lex incorporationis) for all matters of capacity,

Lex Domiclii

The lex domicilii is the Latin term for "law of the domicile" in the Conflict of Laws. Conflict is
the branch of public law regulating all lawsuits involving a "foreign" law element where a
difference in result will occur depending on which laws are applied.
When a case comes before a court and all the main features of the case are local, the court
will apply the lex fori, the prevailing municipal law, to decide the case.

But if there are "foreign" elements to the case, the forum court may be obliged under the
Conflict of Laws system to consider:
# whether the forum court has jurisdiction to hear the matter or not;
# it must then characterize the issues, i.e. allocate the factual basis of the case to its
relevant legal classes; and
# then apply the choice of law rules to decide the lex causae, i.e. which law is to be applied
to each class.

The lex domicilii is a common law choice of law rule applied to cases testing the status and
capacity of the parties to the case. The civil law states use a test of either lex patriae (the
law of nationality) or the law of habitual residence to determine status and capacity.

Lex Loci Contractus

The lex loci contractus is the Latin term for "law of the place where the contract is made" in
the Conflict of Laws. Conflict is the branch of public law regulating all lawsuits involving a
"foreign" law element where a difference in result will occur depending on which laws are
applied. When a case comes before a court and all the main features of the case are local,
the court will apply the lex fori, the prevailing municipal law, to decide the case. But if there
are "foreign" elements to the case, the forum court may be obliged under the Conflict of
Laws system to consider:
# whether the forum court has jurisdiction to hear the case (see the problem of forum
shopping); Top
# it must then characterise the issues, i.e. allocate the factual basis of the case to its
relevant legal classes; and
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relevant legal classes; and
# then apply the choice of law rules to decide which law is to be applied to each class.
The lex loci contractus is one of the possible choice of law rules applied to cases testing the
validity of a contract. For ex, suppose that a person domiciled in Canada and a person
habitually resident in France, make a contract by e-mail. They agree to meet in New York
State to record a CD of hip hop music.

The possibly relevant choice of law rules would be:


# the lex domicilii and law of habitual residence to determine whether the parties had the
capacity to enter into the contract;
# the lex loci contractus which could be difficult to establish since neither party left their
own states (reliance on postal rules for offer and acceptance in the several putative lex
causae might produce different results);
#the lex loci solutionis might be the most relevant since New York is the most closely
connected to the substance of the obligations assumed;
# the proper law; and
# the lex fori which might have public policy issues if, say, one of the parties was an infant

Lex Loci Solutionis

The lex loci solutionis is the Latin term for "law of the place where relevant performance
occurs" in the Conflict of Laws. Conflict is the branch of public law regulating all lawsuits
involving a "foreign" law element where a difference in result will occur depending on
which laws are applied.
When a case comes before a court and all the main features of the case are local, the court
will apply the lex fori, the prevailing municipal law, to decide the case. But if there are
"foreign" elements to the case, the forum court may be obliged under the Conflict of Laws
system to consider:
# whether the forum court has jurisdiction to hear the case (see the problem of forum
shopping);
# it must then characterise the issues, i.e. allocate the factual basis of the case to its
relevant legal classes; and
# then apply the choice of law rules to decide which law is to be applied to each class.
The lex loci solutionis is one of the possible choice of law rules applied to cases testing the
validity of a contract and in tort cases. For example, suppose that a person domiciled in
Bolivia and a person habitually resident in Germany, make a contract by e-mail. They agree
to meet in Arizona to research a book. The possibly relevant choice of law rules would be:
# the lex domicilii, lex patriae or the law of habitual residence to determine whether the
parties had the capacity to enter into the contract;
# the lex loci contractus which could be difficult to establish since neither party left their
own states (reliance on postal rules for offer and acceptance in the several putative lex
causae might produce different results);
# the lex loci solutionis might be the most relevant since Arizona is the most closely
connected to the substance of the obligations assumed;
# the proper law; and
# the lex fori which might have public policy issues if, say, one of the parties was an infant.

Ø Lex Loci Celebrationis

The lex loci celebrationis is the Latin term for "law of the place where the marriage is
celebrated" in the Conflict of Laws. Conflict is the branch of public law regulating all
lawsuits involving a "foreign" law element where a difference in result will occur depending
on which laws are applied. When a case comes before a court and all the main features of
the case are local, the court will apply the lex fori, the prevailing municipal law, to decide
the case. But if there are "foreign" elements to the case, the forum court may be obliged
under the Conflict of Laws system to consider:
# whether the forum court has jurisdiction to hear the case;
# it must then characterise the issues, i.e. allocate the factual basis of the case to its
relevant legal classes; and
# then apply the choice of law rules to decide which law is to be applied to each class.
Top
The lex loci celebrationis is a choice of law rule applied to cases testing the validity of a
marriage. For example, suppose that a person domiciled in Scotland and a person
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marriage. For example, suppose that a person domiciled in Scotland and a person
habitually resident in France, both being of the Islamic faith, go through an Islamic
marriage ceremony in Pakistan where their respective families originated. This ceremony is
not registered with the Pakistani authorities but they initially establish a matrimonial home
in Karachi. After a year, they return to Europe. For immigration and other purposes,
whether they are now husband and wife would be referred to the law of Pakistan because
that is the most immediately relevant law by which to decide precisely the nature of the
ceremony they went through and the effect of failing to register it. If the ceremony was in
fact sufficient to create a valid marriage under Pakistani law and there are no public policy
issues raised under their personal laws of lex domicilii or habitual residence, and under the
lex fori, they will be treated a validly married for all purposes, i.e. it will be an in rem
outcome.

Lex Loci Delicti Commissi

The lex loci delicti commissi is the Latin term for "law of the place where the tort was
committed" in the Conflict of Laws. Conflict is the branch of public law regulating all
lawsuits involving a "foreign" law element where a difference in result will occur depending
on which laws are applied. When a case comes before a court and all the main features of
the case are local, the court will apply the lex fori, the prevailing municipal law, to decide
the case. But if there are "foreign" elements to the case, the forum court may be obliged
under the Conflict of Laws system to consider:
# whether the forum court has jurisdiction to hear the case
# it must then characterise the issues, i.e. allocate the factual basis of the case to its
relevant legal classes; and
# then apply the choice of law rules to decide the lex causae, i.e. which law is to be applied
to each class of issue or to the case as a whole.

The lex loci delicti commissi is one of the possible choice of law rules applied to cases
arising from an alleged tort. For example, suppose that a person domiciled in Australia and
a person habitually resident in Albania, exchange correspondence by e-mail that is alleged
to defame a group of Kurds resident in Turkey. The possibly relevant choice of law rules
would be:
# the lex loci solutionis might be the most relevant but this might be difficult because three
laws might equally apply, i.e. the parties themselves corresponded from two states but the
damage was not sustained until the correspondence was published in Turkey;
# he proper law which is the law which has the closest connection with the substance of
the wrong alleged to have been committed; &
# the lex fori which might have public policy issues if, say, one of the parties was an infant
or there was the possibility of multiple jurisdictions having involvement over a world-wide
internet issue.

Lex Patriae

The term lex patriae is Latin for the law of nationality in the Conflict of Laws which is the
system of public law applied to any lawsuit where there is a choice to be made between
several possibly relevant laws and a different result will be achieved depending on which
law is selected. When a case comes before a court and all the main features of the case are
local, the court will apply the lex fori, the prevailing municipal law, to decide the case. But if
there are "foreign" elements to the case, the forum court may be obliged under the Conflict
of Laws system to consider:
# whether the forum court has jurisdiction to hear the case;
# it must then characterise the issues, i.e. allocate the factual basis of the case to its
relevant legal classes; and
# then apply the choice of law rules to decide the lex causae, i.e. which law is to be applied
to each class.

The lex patriae is a civil law choice of law rule (in some states, the law of habitual residence
is used) to test the status and capacity of the parties to the case. For example, suppose that
a person with a nationality in Denmark decides to take a "round-the-world" trip. It would be
inconvenient if this person's legal status and capacities changed every time he or she Top
entered a new state, e.g. that he or she might be considered an infant or an adult, married
or free to marry, bankrupt or creditworthy, etc., depending on the nature of the laws of the
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or free to marry, bankrupt or creditworthy, etc., depending on the nature of the laws of the
place where he or she happened to be. Assuming that there are no public policy issues
raised under the relevant lex fori, the lex patriae should apply to define all major issues
and so produce an in rem outcome no matter where the case might be litigated. The
common law states use a test of lex domicilii (the law of domicile) to determine status and
capacity. Because the lex patriae choice of law rule may select the law of a country that
contains more than one legal system, there must be rules to determine which of the
several possible laws might apply (e.g. a reference to the law of the United States is actually
a reference to one of the U.S. states). A supranational example of this selection process is
contained in Article 19 of the Rome Convention:

States with more than one legal system:


1. Where a State comprises several territorial units each of which has its own rules of law in
respect of contractual obligations, each territorial unit shall be considered as a country for
the purposes of identifying the law applicable under this Convention.
2. A State within which different territorial units have their own rules of law in respect of
contractual obligations shall not be bound to apply this Convention to conflicts solely
between the laws of such units.

Lex Situs

The term lex situs (Latin) refers to the law of the place in which property is situated for the
purposes of the Conflict of laws. For
example, property may subject to tax pursuant to the law of the place of the property or by
virtue of the domicile of its owner. Conflict is the branch of public law regulating all lawsuits
involving a "foreign" law element where a difference in result will occur depending on
which laws are applied. When a case comes before a court and all the main features of the
case are local, the court will apply the lex fori, the prevailing municipal law, to decide the
case. But if there are "foreign" elements
to the case, the forum court may be obliged under the Conflict of Laws system to consider:
# whether the forum court has jurisdiction to hear the case (see the problem of forum
shopping);
# it must then characterise the issues, i.e. allocate the factual basis of the case to its
relevant legal classes; and
# then apply the choice of law rules to decide which law is to be applied to each class.
The lex situs is a choice of law rule applied to identify the lex causae for cases involving title
to, or the possession and use of property.

In law, there are two types of property:


# Real property is land or any permanent feature or structure above or below the surface.
Ownership of land is an aspect of the system of real property or realty in common law
systems (immovables in civil law systems and the Conflict of Laws).

# All other property is considered personal property or personalty in common law systems
(movables in civil law systems and the Conflict of Laws), and this property is either tangible
or intangible, i.e. it is either physical property that can be touched like a computer, or it is
an enforceable right like a patent or other form of intellectual property.

The term ulex sits is applied only to immovable property and lex loci rei sitae ought to be
used when referring to the law of the situs of movable property but this distinction is less
common today and is ignored for the purposes of the Conflict pages on the Wikipedia.
Land has traditionally represented one of the most important cultural and economic forms
of wealth in society. Because of this historical significance, it is vital that any judgment
affecting title to or the use of the land should be enforceable with the minimum of
difficulty. Hence, compliance with the lex situs should produce a judgment in rem.

The choice of law rules are as follows:


# immovables, by definition, do not move and so the identification of the lex situs will not
present a problem in the majority of cases; · because movables may be portable, the lex
situs is the law of the state in which the personalty is resident at the time the case is heard.

Top
Lex Fori

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In Conflict of Laws, the Latin term lex fori literally means the "law of the forum" and it is
distinguished from the lex causae which is the law the forum actually applies to resolve the
particular case. Sovereignty comes into being through a process of recognition by the
international community in which a de facto state is formally accepted as a de jure state
and so becomes the legitimate government with territorial control over a defined area of
land and all the people who reside within its borders. One of the most important sovereign
powers of any government is to enact laws and to define the extent of their application.

Some laws will apply to all the land and its peoples. Others will be of more limited
application. These laws will be applied through different bodies and institutions. Some will
be formally constituted as courts. Other bodies will exercise specific functions within quasi-
judicial, adminsitrative, religious or other frameworks. When a lawsuit is instituted and the
court has accepted that it has jurisdiction, the parties will normally expect the local laws to
apply, reflecting a presumption of territoriality ? that each state is sovereign within its own
borders and the laws of no other state or international body will apply extraterritorially or
supranationally. If foreign laws did apply, the state would be less than sovereign within its
own borders. However, as social mobility has increased and the internet encourages
people to trade across national boundaries, a need to recognise the relevance and
importance of foreign laws to dispute resolution has arisen. Hence, within the precise limits
set by the lex fori, local courts may sometimes apply one or more foreign laws as the lex
causae if the local politics, public policy and the dictates of justice require it. For a more
complete explanation, refer to the pages on characterisation, and choice of law.

Jurisdiction of The Courts

"Jurisdiction" is a word susceptible of several different meanings, but in the present


account it is used in its widest sense to refer to the question of whether an English court
will hear and determine an issue upon which its decision is sought. The position is
complicated by the fact that there are now four separate sets of rules determining the
jurisdiction of English courts. First, there are the rules under the European Community
Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial
Matters (the Brussels Convention). Second, there are the rules contained in a modified
version of the Brussels Convention (the Modified Convention). Third, there are the rules
under the ECIEFT A Convention (the Lugano Convention). Fourth, there are the traditional
rules.

I. Jurisdiction Under The Brussels Convention

In broad terms, the rules on jurisdiction contained in the Brussels Convention apply where:
(a) The matter is within the scope of the Convention (a civil and commercial Matter), and
(b) The defendant is domiciled in a European Community State (i.e. in Austria, Belgium,
Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands,
Portugal, Spain, Sweden and the United Kingdom), I Even if he is not, certain provisions in
the Convention will stil1 apply, e.g. where the case involves tide to land in a Contracting
State or where there is an agreement conferring jurisdiction on the courts of a Contracting
State,
Jurisdiction under the Convention depends on a specified connection with the forum, eg
that the defendant is domiciled there, Furthermore, if a Contracting State is allocated
jurisdiction under the Convention, the courts 1l1 that State have no discretion to decllI1e to
take jurisdiction, at least not in cases where the alternative forum is another Contracting
State.

Whether the defendant is domiciled in a Contracting State. It is necessary to


distinguish between:
(a) bases of jurisdiction (Title II, Sections 1-6);
(b) other provisions on jurisdiction in Title II;
(c) provisions on recognition and enforcement in Title III.

 It is only in the first of these, the bases of jurisdiction under the Convention, that an initial
basic distinction is drawn between the situation where the defendant is and is not Top
domiciled in a Contracting State. Section 1 of Title II gives one exception where this basic
distinction does not operate and, if the wording of individual bases of jurisdiction is
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distinction does not operate and, if the wording of individual bases of jurisdiction is
studied, at least one more exception emerges.

The position can be summarized as follows:


(a) Where the defendant is domiciled in a Contracting State the bases of jurisdiction under
the Convention will apply and not the traditional rules of jurisdiction of the forum.
(b) Where the defendant is not domiciled in a Contracting State, in general, the Traditional
rules of jurisdiction of the forum will apply.

(c) There are exceptions to (b), i.e. some of the bases of jurisdiction under the Convention
{Articles 16 and 17) will apply to defendants, even though they are not domiciled in a
Contracting State.

(a) Where the defendant is domiciled in a Contracting State: Article 2 in Section 1 contains
the most important basis of jurisdiction under the Convention, that a defendant domiciled
in a Contracting State is subject to the jurisdiction of the courts of that State. If the
defendant is to be sued in the courts of a Contracting State other than that of his domicile,
Article 3 provides that this can only be done by virtue of the bases of jurisdiction set out in
Sections 2 to 6. This prevents national courts from using their traditional rules on
jurisdiction, including their exorbitant rules, against a defendant who is domiciled in a
Contracting State. In the United Kingdom's case it is specifically provided in Article 3 that,
against such a defendant, jurisdiction can no longer be founded on presence of the
defendant in the forum. Article 3 does not refer to the domicile of the claimant: It follows
that, for example, a Japanese domiciliary, although not domiciled in a Contracting State,
would have to use the bases of jurisdiction under the Convention if he wished to sue in a
Contracting State a defendant who was so domiciled.

Articles 2 and 3 require courts to decide whether a defendant is domiciled in a Contracting


State. Section 41 of the 1982 Act contains a provision for determining when an individual is
domiciled in the United Kingdom. He is so domiciled, if and only if: (a) he is resident in the
United Kingdom; and (b) the nature and circumstances of his residence indicate that he has
a substantial connection with the United Kingdom. The latter requirement shall be
presumed to be fulfilled, unless the contrary is proved, if the individual has been resident
in the United Kingdom, or part thereof, for the last three months or more. If the individual
is not domiciled in the United Kingdom it then has to be seen whether he is domiciled in
another Contracting State. Section 41 has no provisions for determining this. This is
consistent with Article 52 of the Convention, which, it will be recalled, provides that, in
order to determine whether a party is domiciled in another Contracting State, the courts
shall apply the law of that State.

(b) The defendant is not domiciled in a Contracting State: Where the defendant is not
domiciled in a Contracting State, Article 4 states that the jurisdiction of the courts of each
Contracting State shall, subject to the provisions of Article 16, be determined by the law of
that State. If, to take an example, an Englishman wishes to sue a Californian domiciliary in
England, he would have to do so under the traditional English rules on jurisdiction, which
are, by and large, more generous to the claimant than their equivalent under the
Convention. Article 4 therefore, recognizes the use of exorbitant jurisdiction by Contracting
States in certain circumstances. This has far reaching consequences when it comes to
enforcing judgments and declining jurisdiction in cases of lis pendens. Article 4 requires the
courts of Contracting States to ascertain when a defendant is not domiciled in a
Contracting State. Having decided that an individual defendant is not domiciled in the
United Kingdom (under the United Kingdom definition), and is not domiciled in another
Contracting State (under. that State's definition), the defendant must be domiciled in a non-
Contracting State. A person must have a domicile in one State or another for the purposes
of the Convention and the 1982 Act. In the rare situations where the particular non-
Contracting State which the defendant is domiciled has to be ascertained, this is done by
applying section 41 (7) of the 1982 Act, which provides that an individual is domiciled in a
State other than a Contracting State if and only if (a) he is resident in that State; and

(b) the nature and circumstances of the residence indicate that he has a substantial
connection with that State. In this particular context there is no resumption to aid in
showing the required substantial connection, and it is possible, in rare cases, that an
Top
individual may not have a substantial connection with anyone State at all. Where this
happens one would have to be resigned to lying that the individual is domiciled in a non-
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pp g y g
Contracting State but it is not clear in which particular one. As regards corporate
defendants, section 42(6) will be applied to determine whether a company has its seat in a
non-Contracting State.

(c) The exceptions: Article 4 mentions just one exception to the rule that national bases of
jurisdiction apply where the defendant is not domiciled in a Contracting State; it is
contained in Article 16. This gives exclusive jurisdiction in certain circumstances, regardless
of the defendant's domicile. Although Article 4 does not mention it, there is another
exception to the rule; this is Article 17 (agreements on jurisdiction). This article is drafted in
such a way that the defendant is not required to be domiciled in a Contracting State. Other
possible exceptions under Article 18 (submission), Article 12 (an agreement in a
matter relating to insurance) and Article 15 (an agreement in a consumer contract) are
discussed later.

2. Jurisdiction Under The Modi ed Convention

The Civil Jurisdiction and Judgments Act 1982 applies a modified version of the Brussels
Convention in cases where:
(a) The matter is within the scope of the Convention (a civil and commercial matter) and;
(b) The defendant is domiciled in the United Kingdom or the proceedings are of a kind
where jurisdiction is allocated regardless of domicile, e.g. the case involves title to land in
part of the United Kingdom,

The defendant must be domiciled in the United Kingdom or the proceedings must be of a
kind mentioned in Article 16 of the 1968 Convention. The Modified Convention is only
concerned in Brussels Convention cases with proceedings where jurisdiction is allocated to
the United Kingdom under Article 2 (the defendant is domiciled in a Contracting State) or

under Article 16 of the 1968 Convention (exclusive jurisdiction regardless of domicile). With
both of these articles the Convention confers international jurisdiction (i.e. on the United
Kingdom) and not local jurisdiction (i.e. on a part of the United Kingdom). Where the
Convention assigns jurisdiction to the courts in the United Kingdom under other articles, it
is necessary to regard it as allocating jurisdiction to the courts in a part of the United
Kingdom. In general, there is no problem where Article 5 applies, as this is designed to give
local jurisdiction. Most of the heads of Article 5 are phrased in terms of the courts for a
"place" in a Contracting State having jurisdiction. For example, Article 5(3) refers to the
courts for the place where, the harmful event occurred; ascertaining the "place" where the
harmful event, occurred inevitably pinpoints a part of the United Kingdom whose courts
are to have jurisdiction. Where Articles 17 and 18 apply, as has already been seen, there
may be more difficulty in allocating jurisdiction to a part of the United Kingdom.

The requirement under section 16(I)(b) that the defendant be domiciled in the United
Kingdom causes the usual definitional problems. In principle, a person is domiciled in
England, Scotland, or Northern Ireland, not in the United Kingdom. Section 41(2) of the
1982 Act solves this difficulty by defining for the purposes of the Act whether an individual
is domiciled in the United Kingdom.
This is only so if:
(a) he is resident in the United Kingdom; and
(b) the nature and circumstances of his residence indicate that he has a substantial
connection with the United Kingdom.

Showing this substantial connection is made easier by the introduction of a presumption


under section 41(6), according to which, where an individual (a) is resident in the United
Kingdom, or in a particular part; and (b) has been so resident for the last three' months or
more, the requirement as to a substantial connection is presumed to: have been fulfilled,
unless the contrary is shown. With corporations, section 42(3) basically provides that a
corporation has its seat in the United Kingdom if (a) it was incorporated and has its
registered office in the United Kingdom; or (b) its central management and control is
exercised in the United Kingdom.

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3. Jurisdiction Under The Lugano Convention

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In broad terms, the rules on jurisdiction contained in the Lugano Convention are applied in
the United Kingdom and in other European Community States where:
(a) The matter is within the scope of the Convention (a civil and commercial matter), and
(b) The defendant is domiciled in an EFTA State (i.e. Iceland, Norway or Switzerland). Even if
he is not, certain provisions in the Convention will still apply, e.g. where the case involves
title to Land in all EFTA Stare or where there is an agreement conferring jurisdiction on the
courts of an EFTA State,

When does the Lugano convention apply?


The Lugano Convention applies in relation to jurisdiction in the situation where the matter
is within the scope of .the Convention and the defendant is domiciled in a Contracting State
(or Article 16 or 17 gives jurisdiction to a Contracting State). This is the same as under the
Brussels Convention and presents no problem for EFT A Contracting States. However,
Member States of the European Community are Contracting States to both the Lugano
Convention and the Brussels Convention. Given that there are differences between the two
Conventions, Member States of the European Community need to know which Convention
to apply. Article 54B of the Lugano Convention deals with this. The effect of this provision,
as far as EC Contracting States are concerned, is that if a defendant is domiciled in an EC
Contracting State the Brussels Convention will still apply in matters of jurisdiction.
However, if the defendant is domiciled in an EFT A Contracting State The Lugano
Convention will apply. The latter convention will also apply if Articles 16 or 17 confer
jurisdiction on the courts of an EFT A Contracting State. The provisions in the Lugano
Convention on lis pendens and related actions will apply if there are concurrent
proceedings in an EC Contracting State and an EFT A Contracting State.

Under Indian Law


In India, rules relating to Jurisdiction in action inter parties are laid down in sections 19, 20
of the code of Civil Procedure, 1908.

Section 19 is confined to suit for compensation for wrongs to person or movables.


That section reads as:
Suits for compensation for wrongs to person or movable Where a suit is for compensation
for wrong done to the person or to movable property, if the wrong was done within the
local limits of the jurisdiction of one Court and the defendant resides, or carries on
business, or personally works for gain, within the local limits of the jurisdiction of another
Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

This section confined to torts committed in India an d to defendants residing in India. It


does not include within its ambit the suits in respect of foreign torts. Such cases are
covered by section 20, which overlaps this section. This section deals with inter partes suits.

This section reads as follows:


Subject to the limitations aforesaid, every suit shall be instituted in Court within the local
limits of whose jurisdiction
(a) The defendant, or each of the defendants where there are more than one, at the time of
the commencement of the suit, actually and voluntarily resides, or carries on business, or
personally works for gain; or
(b) Any of the defendants, where there are more than one, at the time of the
commencement of the suit actually and voluntarily resides, or carries on business, or
personally works for gain, provided that in such case either the leave of the Court is given,
or the defendants who do not reside, or carry on business, or personally work for gain, as
aforesaid, acquiesce in such institution; or
(c) The cause of action, wholly or in part, arises.
The explanation to this section says that a corporation shall be deemed to carry on
business at its sole or principal office in India or, in respect of any cause of action arising at
any place where it has also a subordinate office, at such place.

Thus, it is submitted that Indian Courts should not construe strictly the requirement of
residence in private international law cases, nor should it exercise jurisdiction over persons
on whom process has not bee served just because cause of action arises within jurisdiction.
The Indian rules of Private International Law are identical to the rules of English Private
Top
International Law. Submission to the Court. Under English Law, A person may submit to the
jurisdiction of the Court either under an express agreement or by conduct. If a person to
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g Applying Appropriate
y Law In Cases Having
p A Foreign Party

the court submits to the jurisdiction then the court gets the jurisdiction to try the action
and a decree or an order is passed in such action will be valid internationally. The
submission to jurisdiction cannot bring those cases within the jurisdiction, which are
otherwise outside the jurisdiction. A person may submit to the court either by his/her
conduct (conduct which is voluntary) or by a contract (by way of express stipulation in the
contract).

Where as the Indian Law of submission, it closely follows English Law. If a person is outside
the jurisdiction, the court will have the jurisdiction on him only if he submits to the
jurisdiction of the court. In case, the foreign defendant does not submit to the jurisdiction
of the court, then the judgment delivered in his absence would be null and void. Mere
appearance in the court amounts to submission.

Enforcement And Recognition Of Foreign Judgments

In the Conflict of Laws, issues relevant to the enforcement of foreign judgments are
frequently regulated by bilateral treaty or multilateral international convention to facilitate
the reciprocal recognition and enforcement of judgments between states. The
"recognition" of a foreign judgment occurs when the court of one state accepts a judicial
decision made by the courts of another state as in rem and so precludes the re litigation of
a claim on the same facts on the ground of res judicata and/or collateral estoppel. Once the
judgment is recognized, the party who was successful in the original case can then seek its
"enforcement". If it was a money judgment and the debtor has assets in the second
jurisdiction, the judgment creditor has access to all the enforcement remedies as if the case
had originated in that second state. If some other form of judgment was obtained, e.g.
affecting status, granting injunctive relief, etc., the second court will make whatever orders
are appropriate to make the first judgment effective. In doing so, the states are relying on
the principle of reciprocity which requires equal respect shown to judgments made by two
different sets of courts, i.e. the courts of both states must treat the judgments as equally
binding and enforceable in the two jurisdictions.

If the relevant states are not parties to the Hague Convention on Foreign Judgments in Civil
and Commercial Matters, the EC Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters or a similar treaty or convention providing for
the routine of registration and enforcement between states, the courts of most states will
accept jurisdiction to hear cases for the recognition and enforcement of judgments
awarded by the courts of another state if the defendant or relevant assets are physically
located within their territorial boundaries. Whether recognition will be given is determined
by the lex fori, i.e. the domestic law of the local court and the principles of comity. The
following issues are considered:· whether the foreign court properly accepted personal
jurisdiction over the defendant;

· whether the defendant was properly served with notice of the proceedings and given a
reasonable opportunity to be heard which raises general principles of natural justice and
will frequently be judged by international standards (hence, the rules for service on a non-
resident defendant outside the jurisdiction must match general standards and the fact that
the first instance court's rules were followed will be irrelevant if the international view is
that the local system is unjust);

# whether the proceedings were tainted with fraud; and


# whether the judgment offends the public policy of the local state.
A foreign Court is defined as a court situate outside India and not established or continued
by the authority of the Central Government. And a Foreign Judgment means a judgment of
a foreign court. . In other words, a foreign judgment means adjudication by a foreign court
upon a matter before it. Thus judgments delivered by courts in England, France, Germany,
USA, etc. are foreign judgments.

Sections 13 and 14 enact a rule of res judicata in case of foreign judgments. These
provisions embody the principle of private international law that a judgment delivered by a
foreign court of competent jurisdiction can be enforced by an Indian court and will operate
as res judicata between the parties thereto except in the cases mentioned in Section 13. Top

Object of Section 13 And 14 is that The judgment of a foreign court is enforced on the
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Object of Section.13 And 14 is that The judgment of a foreign court is enforced on the
principle that where a court of competent jurisdiction has adjudicated upon a claim, a legal
obligation arises to satisfy that claim. The rules of private international law of each State
must in the very nature of things differ, but by the comity of nations certain rules are
recognized as common to civilized jurisdictions. Through part of the judicial system of each
State these common rules have been adopted to adjudicate upon disputes involving a
foreign element and to effectuate judgments of foreign courts in certain matters, or as a
result of international conventions. Such recognition is accorded not as an act of courtesy
but on considerations of justice, equity and good conscience. An awareness of foreign law
in a parallel jurisdiction would be a useful guideline in determining our notions of justice
and public policy. We are sovereign within our territory but "it is no derogation of
sovereignty to take account of foreign law."

As has been rightly observed by a great jurist: "We are not so provincial as to say that every
solution of a problem is wrong because we deal with it otherwise at home"; and we shall
not brush aside foreign judicial process unless doing so "would violate some fundamental
principle of justice, some prevalent conception of good morals, some deep-rooted tradition
of the common weal."

The Code of Civil Procedure provides that a foreign judgment shall be conclusive as to any
matter thereby directly adjudicated upon between the same parties pr between parties
under whom they or any of them claim litigating under the same title except -
a) Where it has not been pronounced by court of competent jurisdiction;
b) Where it has not been given on the merits of the case;
c) Where it appears on the face of the proceeding to be founded on an incorrect view of
international law or a refusal to recognize the law of India in cases in which such law is
applicable;
d) Where the proceeding in which the judgment was obtained or opposed to natural
justice;
e) Where it has been obtained by fraud;
f) Where it sustains a claim founded on a breach of any law in force in India

# Foreign Judgment not by a Competent Court

It is a fundamental principle of law that the judgment or order passed by the court, which
has no jurisdiction, is null and void. Thus, a judgment of a foreign court to be conclusive
between the parties must be a judgment pronounced by a court of competent jurisdiction .
Such judgment must be by a court competent both by the law of state, which has
constituted it and in an international sense and it must have directly adjudicated upon the
"matter" which is pleaded as res judicata. But what is conclusive is the judgment, i.e. the
final adjudication and not the reasons for the judgment given by the foreign court.

Thus if A sues B in a foreign court, and if the suit is dismissed, the decision will operate as a
bar to a fresh suit by A in India on the same cause of action. On the other hand, if a decree
is passed in favor of A by a foreign court against B and he sues B on the judgment in India,
B will be precluded from putting in issue the same matters that were directly and
substantially in issue in the suit and adjudicated upon by the foreign court.

# Foreign Judgment Against International Or Indian Law. A judgment based upon an


incorrect view of international law or a refusal to recognize the law of India where such law
is applicable is not conclusive. But the mistake must be apparent on the face of the
proceedings. Thus, where in a suit instituted in England on the basis of a contract made in
India, the English court erroneously applied English law, the judgment of the court is
covered by this clause in as much as it is a general principle of Private International Law
that the rights and liabilities of the parties to a contract are governed by the place where
the contract is made (lex loci contractus). "When a foreign judgment is founded on a
jurisdiction or on a ground not recognized by Indian law or International Law, it is a
judgment which is in defiance pf the law. Hence, it is not conclusive of the matter
adjudicated therein and, therefore, unenforceable in this country."

# Foreign Judgments Opposed To Natural Justice Top

It is the essence of a judgment of a court that it must be obtained after due observance on
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It is the essence of a judgment of a court that it must be obtained after due observance on
the judicial process, i.e., the court rendering the judgment must observe the minimum
requirements of natural justice - it must be composed of impartial persons, act fairly,
without bias, and in good faith; it must give reasonable notice to the parties to the dispute
and afford each party adequate opportunity of presenting his case. A judgment, which is
the result of bias or want of impartiality on the part of a judge, will be regarded as a nullity
and the trial "corum non judice".

Thus a judgment given without notice of the suit to the defendant or without affording a
reasonable opportunity of representing his case is opposed to natural justice. Similarly, a
judgment against a party not properly represented in the proceedings or where the judge
was biased is contrary to natural justice and, therefore, does not operate as res judicata.

But the expression "natural justice" in clause (d) of Section 13 relates to the irregularities in
procedure rather than to the merits of the case. A foreign judgment of a competent court,
therefore, is conclusive even if it proceeds on an erroneous view of the evidence or the law,
if the minimum requirements of the judicial process are assured; correctness of the
judgment in law or evidence is not predicated as a condition for recognition of its
conclusiveness by the municipal court. Thus, a foreign judgment is not open to attack on
the ground that the law of domicile had not been properly applied in deciding the validity
of adoption or that the court disagrees with the conclusion of the foreign court, if
otherwise the principles of natural justice have been complied with.

# Foreign Judgment Obtained By Fraud

It is a well-established principle of Private International Law that if a foreign judgment is


obtained by fraud, it will not operate as res judicata.

Lord Denning observed: " No judgment of a court, no order of a Minister, can be allowed to
stand, if it has been obtained by fraud." Cheshire rightly states: "It is firmly established that
a foreign judgment is impeachable for fraud in the sense that upon proof of fraud it cannot
be enforced by action in England." All judgments whether pronounced by domestic or
foreign courts are void if obtained by fraud, for fraud vitiates the most solemn proceeding
of a court of justice. In the leading case of Satya v. Teja Singh , where a husband obtained a
decree of divorce against his wife from an American Court averring that he was domiciled
in America. Observing that the husband was not a bonafide resident or domicile of
America, and he had played fraud on a foreign court falsely representing to it incorrect
jurisdictional fact, the Supreme Court held that the decree was without jurisdiction and a
nullity.

Again, in Narsimha Rao v. Venkata Kakshmi, A husband obtained a decree of divorce


against his wife B again from an American High Court on the ground that he was a resident
of America. Then he remarried C. B filed a criminal complaint against A and C for bigamy. A
and C filed an application for discharge.

Dismissing the application, the Supreme Court


held that the decree of dissolution of Marriage was without jurisdiction in as much as
neither the marriage was solemnized nor the parties last resided together in America. It
was, therefore, unenforceable in India. In Chengalvaraya Naidu v. Jagannath, the
Supreme Court stated: " It is the settled proposition of law that a judgment or decree
obtained by playing fraud on the court is a nullity and non est. in the eyes of the law. Such
a judgment/decree by the first court or by the highest court has to be treated as a nullity by
every court, whether superior or inferior. It can be challenged in any court even in collateral
proceedings."

The fraud may be either fraud on the part of the party invalidating a foreign judgment in
whose favor the judgment is given or fraud on the court pronouncing the judgment. Such
fraud, however, should not be merely constructive, but must be actual fraud consisting of
representations designed and intended to mislead; a mere concealment of fact is not
sufficient to avoid a foreign judgment.

Top
# Foreign Judgment Founded on Breach of Indian Law
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Where a foreign judgment is founded on a breach of any law in force in India, it would not
be enforced in India. The rules of Private International Law cannot be adopted
mechanically and blindly. Every case, which comes before an Indian Court, must be decided
in accordance with Indian law. It is implicit that the foreign law must not offend our public
policy. Thus a foreign judgment for a gaming debt or on a claim, which is barred under the
Law of Limitation in India, is not conclusive. Similarly, a decree for divorce passed by a
foreign court cannot be confirmed by an Indian court if under the Indian law the marriage
is
indissoluble. It is implicit that the foreign law and foreign judgment would not offend
against our public policy.

Section 14 of the Code declares that the court shall presume, upon the production of any
document purporting to be a certified copy of a foreign judgment, that such judgment was
pronounced by a court of competent jurisdiction, unless the contrary appears on the
record, or is proved. However, if for admissibility of such copy any further condition is
required to be fulfilled, it can be admitted in evidence only if that condition is satisfied.

Enforcement of Foreign Judgments

A foreign judgment, which is conclusive under Section 13 of the Code, can be enforced in
India in the following ways:
1. By instituting a suit on such foreign judgment,
A foreign judgment may be enforced by instituting a suit on such foreign judgment. The
general principle of law is that any decision by a foreign court, tribunal or quasi-judicial
authority is not enforceable in a country unless such decision is embodied in a decree of a
court of that country. In such a suit, the court cannot go into the merits of the original claim
and it shall be conclusive as to any mater thereby directly adjudicated upon between the
same parties. Such a suit must be filed within a period of three years from the date of the
judgment.

2. Execution Proceedings
A foreign judgment may also be enforced by proceedings in execution in certain specified
cases mentioned in Section 44-A of the Code. The said section provides that where a
certified copy of a decree if any of the superior courts of any reciprocating territory has
been filed in a District Court, the decree may be executed in India as if it had been passed
by the District Court. When a foreign judgment is sought to be executed under Section 44-
A, it will be open to the judgment-debtor to rake all objections, which would have been
open to him under Section 13 if a suit had been filed on such judgment. The fact that out of
six exceptions there has been due compliance with some of the exceptions is of no avail.
The decree can be executed under Section 44-A only if all the conditions of Section 13 (a) to
(f) are satisfied.

Conclusion
In case a party is a foreign party the party has to submit to the jurisdiction the court first.
And the jurisdiction is decided with the
help of certain rules of Private International Law which are the connecting rules which help
the courts in deciding what law should be applied to decide the case. Then, the foreign
party is required to submit to the court that has jurisdiction i.e. he/she accept the decision
of that court. After the court gives the decision, in order to enforce it in the foreign state,
the foreign court need to recognize it and then it will be enforced. For Recognition and
enforcement of foreign decrees and orders every country has its own rules/Laws. Thus, the
Indian rules of Private International Law are identical to the rules of English Private
International Law.
The author can be reached at: tanvikapoor@legalserviceindia.com / Print This Article

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