Private International Law (PIL) or Conflict of Laws (CoL)

Scope and nature of Private International Law

• Usually the cases that come up before the courts are cases
that involve elements that are internal- the cause of action
arises in India; the parties or either Indians or are domiciled
in India; and all other elements are of India- the courts
apply Indian law.
• Jurisdiction of courts- the procedural laws determine the
court that has jurisdiction in a matter- jurisdiction is
determined on the principle that the court that renders the
judgment is able to enforce it.
• In most countries the law requires that the court shall not
proceed in a case unless the service of summons is
effected; this applies to all defendants including those who
live abroad- the law also stipulates substituted service of
summons (o.5 rule 20 of CPC)
• In certain circumstances the court exercises
jurisdiction even when the defendant is absent- in
a suit whose all elements are internal, the
judgment rendered in the absence of the
defendant is enforceable- however, such a
judgment may not be enforceable outside India.
• In certain matters, the court cannot exercise
jurisdiction even though the defendant is present
in India.
• Ordinarily a court of law will not like to pronounce
a judgment which it has no power to enforce.
Cases involving foreign element-
• A foreigner domiciled in India leaving movable &
immovable properties in India & abroad
• A petition of divorce presented by an Indian domiciled in
India who married a foreigner woman in a foreign country
• Petition filed by a foreigner woman who married an Indian
in a foreign country who left that country with the child
whose custody was ordered by a foreign court to the
mother in a divorce proceeding
• A suit for breach of contract filed by the plaintiff domiciled
in England against a French defendant domiciled in Paris for
a contract entered into in the USA for supply of goods from
India
Another question having foreign element is enforcement of
foreign judgments & awards
Presence of foreign element due to:
Either party may be citizen of a foreign country;
or
Domiciled in foreign country, and the dispute
may relate to their status or their property
situated in that country; or
The dispute may relate to a contract between
an Indian and a party living abroad; or
A suit may relate to a tort committed outside
India.
Example I
A (bride) & B (groom) living in country X get married in
country Y- validity of marriage is in dispute- court may
have to consider an independent question, which would
affect its decision- e.g., such a marriage if the bride was
under 18 when she married, and thus under Indian law, the
marriage was not legal, but such marriage may be valid in
country Y, where the marriage took place- though the mode
of performing the marriage, though valid in country Y may
not be accepted as a valid ceremony in India- in either
situation if Indian law is applied, injustice may result-
injustice may also result if the foreign law is applied.
Questions to be answered by applying CoL:
Capacity to marry (as the bride could be a minor);
Is capacity determined by the law of domicile or the law of
the place where the marriage was solemnised;
Assuming that the test is domicile, how is domicile
determined?
Example II
A contract entered into in India is to be performed
outside India (country X)- if the contract is without
consideration it is void in India(except in the cases of
some exceptions); however, such a contract may be
valid in country X. Which law is to be applied. If
Indian court applies Indian law, injustice may result as
the contract would have been valid in country X- the
answer to the problem requires deciding whether the
absence of consideration affects the material or
essential validity of the contract; if it does, it would
under our rule of conflict of laws be decided by the
‘proper law’ of the contract- determining the proper
law of contract would require applying a rule of
conflict of laws.
In all cases involving foreign element, Indian courts
will be required to decide:
1. In what circumstances the court will assume
jurisdiction over the case (having foreign
element)
2. If the court assumes jurisdiction, then whether it
will determine the case entirely upon the Indian
law, or will it apply the appropriate foreign law;
and
3. In what circumstances it will recognise a foreign
judgment or when it will order execution of a
foreign decree.
 Law

Public Law Private Law

CoL : is part of Private Law to regulate disputes of
private nature having a foreign element
 Law

Municipal Law Public International Law

Althouth CoL appears to be a third branch of law it is part of
Municipal Law to regulate disputes of private nature having a
foreign element.
Sources of CoL:
(1) Statutes; (2) Decisions of courts (3) Opinion of jurists
There is no single system of CoL rules. It differs from jurisdiction to
jurisdiction.
English jurist Story first coined the word Private
International Law (PIL)
PIL a misnomer- there is no international law element-
appropriately termed as ‘Conflict of Laws’.
PIL/ Conflict of laws means a branch of Indian Law
applied by Indian courts whenever a dispute before it
involves a foreign element [Viswanathan R v Rukn-Ul
Syed Abdul Wajid AIR 1963 SC 1].
Foreign element- means a fact relevant to the issues
involved in the proceedings which has a geographical
or other connection with a territorial unit other than
the territorial unit where the court is dealing with the
proceedings.
‘Conflict’ presupposes existence of two or more legal
systems claiming to apply in a given situation.
Whilst public international law is a law between
States, and is generally not enforceable in
domestic courts, conflict of laws is a branch of
domestic law of countries to be followed by
domestic courts. Courts voluntarily apply the CoL
rules of their country to resolve the problem;
while certain rules of conflict of laws are accepted
in most countries, other rules differ.
Public Int Law is mostly concerned with nations and
not individuals and the law is uniform. CoL is
concerned with individuals or individual on one
side and govt on the other side and is not uniform
and differs from country to country.
Nomenclature- PIL- it is justified?
According to jurists of USSR/Russia, who argue that in their state
there is nothing like private law, and then this branch of law
“does not contain substantive rules required to adjudicate the
legal relations but only those which indicate the law of which
state should be applied when adjudicating the facts bearing on
the case”.
Westlake supports PIL saying that the subject matter of this branch
of law falls within the purview of international law as the courts
are required to choose one of the several foreign laws, and
jurisdictions of one of the several foreign courts.
There is some link between PIL and Pub Int Law- there are certain
rules of law which are common between them (sovereign
immunity is accepted by both the laws).
CoL is also considered as defective by many- this name includes
within its ambit choice of law and leaves out jurisdiction; in fact
there is no conflict of laws- the very objective of this branch of
law is to avoid conflict- the purpose of PIL is to indicate the
applicable foreign law, with a view to render justice.
Basis/ foundation of CoL/ reasons for applying foreign law:
Comity of nations was the earliest. Dutch jurist John Voet said that
one nation applies the law of another to show its regard
towards it.
Another basis for the application of foreign law is that foreign law
is applied because it is necessary for the determination of the
rights of parties.
The other basis is the need to do justice, which is the foundation of
CoL- to satisfy the reasonable and legitimate expectation of the
parties to a transaction or occurrence (Dicey, Morris & Collins)-
if the courts apply only the domestic law, there may be the
possibility for criticism of ‘forum shopping’ as the parties may
tend to file the proceedings in the courts of the country where
the domestic laws are favourable to them.
Another reason for applying CoL is practical- if the Indian courts
apply Indian law in respect of the property lying in country X, it
would be difficult to apply the decision of Indian Court in
country X if the decision is contrary to the law of country X.
Duff CJ of Supreme Court of Canada [Stephens v
Falchi (1938) SCR 354]:
“The courts of Quebec administer the law of
Quebec and no other law. If they apply the rules
of law of any other country, it is because the law
of Quebec commands them to do so in the
circumstances. Whether or not the conditions are
such as to require the application of rules of law
of another country is a question they may decide
under their own law.”
Cheshire: “PIL, then, is that part of law which comes
into play when the issue before the court affects
some facts, events or transaction that is so closely
connected with a foreign system of law as to
necessitate recourse to that system”.
Dicey & Morris: English PIL is that branch of law of
England which “consists of rules which do not directly
determine the rights and liabilities of particular
persons but which determines the limit of the
jurisdiction to be exercised by the English courts and
also the choice of the body of law, whether domestic
law of England or the law of any foreign country by
reference to which English courts are to determine
different matters brought before them for decision.”
Subject matter of PIL:
Common law and Civil law systems differ on this. Civil law
countries restrict PIL to problems of CoL; matters relating to
foreigners fall under a separate branch known as Law of
Foreigners. Russia and Eastern European countries treat law
relating to foreigners as a branch of Administrative Law.
According to Szaszy: “problems connected with conflicts of
jurisdiction cannot be included in PIL, either because the
subject of regulating the competence of courts for
exercising jurisdiction belongs to the law of civil procedure,
more precisely, to the international law of civil procedure”.
Although in India rules relating to jurisdiction of courts and
rules relating to recognition and enforcement of foreign
judgments are laid down in the CPC, yet the Indian Courts
have all along considered the jurisdiction of court and rules
of choice of law as falling within the ambit of PIL.
In India and in the countries of common law system, the
following are considered as the subject matter of PIL:
(i) Rules relating to jurisdiction of courts,
(ii) Rules of choice of law, and
(iii) Rules relating to recognition and enforcement of foreign
judgments and decrees.
Jurisdiction:
The law of procedure of every country lays down that in what
matters which court will have jurisdiction. Indian CPC lays
down that the court shall not proceed unless service of
the summons is made on the defendant- this applies to all
the defendants including those who live abroad- looked
from this angle jurisdiction is fundamental in all suits and
legal actions- however, for the following two reasons it
has special significance in PIL:
First, in certain circumstances the court exercises jurisdiction
in a case even when the defendant is absent- in such a case
judgment rendered is enforceable- but the judgment may
not be recognised elsewhere.
Secondly, there are certain matters in which courts cannot
exercise jurisdiction even though the defendant is present,
such as a petition for dissolution of marriage or in a suit
relating to immovable property situated in another country.
The question of jurisdiction may arise before the court in
the following two circumstances:
(i) When a suit is filed before the court the question arises
whether the court has jurisdiction; or
(ii) When the question before the court is of the recognition
of a foreign judgment or its enforcement, the court may be
called upon to determine whether the foreign court that
rendered the judgment was a court of competent
jurisdiction.
Jurisdiction- normally it is territorial/ on citizens also
Passports Act, 1967
Xxxx
Short title and extent (1) This Act may be called the Passports Act, 1967. (2)
It extends to the whole of India and applies also to citizens of India who
are outside India.
Code of Criminal Procedure 1973
Xxx
(2) It extends to the whole of India except the State of Jammu and
Kashmir:
Normally rules of jurisdiction are based on the principle that the court
rendering judgment must be able to enforce it- a court of law may not
pronounce a judgment which it has no power to enforce- today most of
the countries are unanimous that in respect of immovable property the
courts where the property is situated has jurisdiction- that is not the case
with movables; similarly in suits relating to personal matters there is no
uniformity- thus in such matters courts of more than one country may
claim jurisdiction- in most cases jurisdiction is the fundamental question
without deciding which the courts cannot proceed with the cases.
Choice of law:
In case the court comes to the conclusion
that it has jurisdiction, then in a conflict
of law case the question that arises is:
under which law the suit should be
decided? Whether the law of the forum
or whether the law of a foreign country.
If the case is before Indian court, the
question of choice of law is to be
determined by Indian PIL.
Historical developments & theories:
Among the laws, PIL is the youngest.
History of Eng PIL does not go beyond 200 years.
Rules of Indian PIL are borrowed from Eng PIL.
During Roman empire, Romans were governed by Roman Law and
non-citizens by a law known as ‘law of nations’- consequently
there was nothing like PIL during the Roman Empire- however
the principles of domicile and lex situs was prevalent in Roman
Law.
Era of personal laws- after the fall of Roman Empire, from 6th to
10th century the era of personal laws prevailed- wherever a
person went, he carried his law with him- two exceptions are
criminal law and canon law.
Era of Feudalism and City States- 11th and 12th centuries witnessed
the exit of the era of personal laws and its replacement by the
era of feudalism in the North of Alps and the city states of South
of Alps- this ushered in the era of territorial laws- there was no
place for personal laws- it did not tolerate foreign law.
Era of Statutists:
During 13th century there was emergence of rules of
PIL- in this century, trade and commerce between city
states had reached its zenith- in the interest of trade
& commerce city states recognised each other’s laws-
this was also the age of revival of Roman law- among
the authors of this age Bartolus was the greatest and
he influenced the legal thought of European
countries for several centuries- with him came the
Statute theory- in the middle ages ‘statute’ meant
any law or custom which prevailed in any city of Italy
contrary to the Italian law- originally the theory was
conceived to provide solution to the conflict among
the laws of Italian city states and between the laws of
Italy and other city states- this theory has certain
problem areas such as characterisation
Modern era:
In the 19th century, which is regarded as the beginning
of modern era, German jurist Friedrich Carl von
Savigny propounded a new theory, according to
which for the entire civilised world one uniform
system of PIL could be developed- rejecting the
Statute theory he said that to classify law with its
object in view was not correct- according to him, the
object of PIL is to establish the co-relation of a legal
relationship with some territorial law; every legal
relationship must belong to some law and therefore
the object of PIL is to find out the ‘seat’ of every legal
relationship; and in the event there being a conflict
between the territorial law and the law of the place
to which legal relationship belongs, the latter should
be applied.
According to Szaszy the Great October Socialist
revolution accomplished at the end of the First World
War, and the socialist revolution that took place in
the people’s democracies after the Second World
War have changed the aspect of the world: ‘Parallel
to the capitalist system founded on private property,
the socialist legal system founded on the social
property of the means of production came into
being; accordingly, contacts of a completely new type
were established as regards the relationship between
capitalist and socialist states, and between socialist
states themselves, and the nature of these contacts
was substantially different from that of international
relations which had been prevailing.
English PIL:
Due to several historical reasons, the rules of PIL could not
develop in England before the 17th century due to the
steam-rolling rule that to all the suits before the English
courts, the rules of English law applied. In the 17th century
the question arose whether the English law be recognised
in Scotland and that whether the English law which
prevented foreigners from becoming owners of land would
apply to Scots also. In Cavlin’s case [(1608) 7 Rep. 2a] the
latter was answered in negative- in some cases English
courts showed their willingness to take evidence of foreign
law; in 17th century English courts also showed their
willingness to recognise foreign judgments; a stage was
reached when English courts were, by social necessity,
compelled to take cognizance of PIL situations.
In the 18th century, British Empire reached the
dimension ‘sun never sets’- the constituents of the
empire had different sets of laws- in Robinson v
Bland [(1760) 2 Burr. 1077] Mansfield LJ said “The
general rule.... is that the place where the contract is
made, and not the place where action is brought, is
to be considered in expounding and enforcing a
contract. But this rule admits of an exception when
the parties at the time of making of the contract had
a view to a different kingdom.” Then Mansfield LJ
propounded the notion of what is today known as
‘proper law of contract.’ In Mostyn v Gabrigos
[(1774) Cowp. 161] he propounded rules governing
foreign tort.
As the years rolled by, gradually rules of PIL emerged such as
contracts, torts, legitimacy etc. In the words of Cheshire
the 18th century may be termed as ‘the embryonic period’
of PIL- a period which extended to the middle of 19th
century- 19th century can take the credit for a period in
which rules of PIL start taking shape.
Indian PIL:
With the establishment of Mughal rule in many matters rules
of Muslim law came to be applicable; in most matters, if
both the parties were Hindus Hindu law was applied and if
both the parties were Muslims, Muslim law was applied; in
the entire family matters Hindus were governed by Hindu
law and Muslims were governed by Muslim law- thus
emerged the era of personal laws in India.
During British rule, from its inception to end, various
communities were governed by their personal law in
personal matters; occasions for conflicts were low as inter-
community relations were not possible. Inter-community
marriages could be performed in civil marriage form under
the Special Marriage Acts, 1872; 1928; once the marriage
was performed under the Spl Marriage Acts, the parties
ceased to be governed in most matters by the law of their
respective community- succession governed by the Indian
Succession Act, 1925; the conflicts are thus avoided; the
position is same even now- a Hindu living in any area is
governed by the personal Hindu law prevailing in that area-
thus a Hindu living in Bengal is governed by Dayabhaga
school and will continue to be governed by that school
wherever he goes.
Even after Independence we follow rules of British PIL.
Unification of PIL:
The need for PIL arises because the internal laws differ
from country to country. If the internal laws of
various countries lay down uniform rules, probably
there will not be any need for PIL. Difference is not
only in the internal laws but also in the PIL, on
account of which conflicting decisions are
pronounced by courts of various jurisdiction on
same/ similar set of facts- thus there is a need for
unification of rules of PIL.
There are two modes for unification:
(a) Unification of the internal laws of countries; and
(b) Unification of the rules of PIL.
Berne Convention, 1886- under this convention an
international union for the protection of authors over their
literary and artistic works was formed.
After First World War an International Institute for the
Unification of Private Law was established at Rome- this
Institute has achieved some success in the field of
unification of civil laws.
Warsaw Convention of 1929 amended by the Hague
Convention of 1955- very important convention that
provides for uniform rules relating to carriage of goods and
persons by air.
Brussels Convention of 1922-23 unification of rules relating to
carriage of goods and persons by sea came into existence.
Geneva Convention on International Carriage of Goods by
Road 1956 was on the same lines relating to carriage by
road.
In 1964 a convention that establishes uniform set of
international sales of goods and on the formation
of contracts for such sales was formulated by the
Rome Institute in conjunction with the Hague
Conference.
There have been successful efforts on regional level.
The Scandinavian countries (Sweden, Norway,
Denmark, Finland and Iceland) in 1929-33 entered
into a number of Conventions to unify the rules of
PIL relating to marriage, adoption and
guardianship.
In 1951 a permanent Bureau of Hague Conference at the
Hague was constituted towards unification of PIL at global
level. This Bureau works under the general direction of the
Standing Governmental Commission of the Netherlands
which was established by a Royal Decree in 1897 with the
object of promoting codification of PIL. This Bureau has
done a commendable job. The Conventions made under its
aegis are:
Convention on Civil Procedure, 1954
Convention on Uniform Law of International Sale of Goods
and Uniform law on the Formation of Contract for
International Sale of Goods, 1964
Convention on the Recognition and Enforcement of Foreign
Judgments in Civil and Commercial matters
Convention on Choice of Court, 1965
Convention on Jurisdiction, Applicable Law and Recognition of
Decrees Relating to Adoptions, 1965
Theories of PIL:
1. Statute theory
2. International theory
3. Territorial theory and the theory of acquired rights
4. Local law theory, and
5. Theory of justice
Statute theory:
A product of 13th century Italian theories- propounded by Bartolus- a ‘statute’ was
a declaratory restatement of older customary law of the city and its
commercial community; they contained new rules also.
Considering the object of law, statutes were classified under: (i) statutes
concerning person (statuta personalia) and (ii) statutes concerning things
(statuta realia). Bartolus added another i.e., mixed statutes (statuta mixta)
concerning acts such as formation of a contract. Statutes concerning things
were essentially territorial; personal statutes applied to persons domiciled
within the territories of the state. Mixed statutes applied to all acts done in
the country enacting such statutes, even when litigation was filed in another
jurisdiction.
Apparently the theory appears to be simple; but in
its practical application presents great difficulties-
most difficult determination is characterising
them as personal, real or mixed.
In the 16th century France, scholars undertook to
develop the theory further- they tried to mould
the theory to suit their social conditions- arch
protagonists are Charles Dumoulin and Bertrand
D’ Argentre- Dumoulin emphasised volition of the
parties as the deciding factor of law of contract-
according to him whenever there is a doubt
whether the matter is personal or real or mixed it
should be treated as real.
In the 17th century Dutch jurists made strides into the theory-
notable was Frisian Ulric Huber; he propounded:
(i) The laws of each state operate within its territory and are
applicable to all its subjects, but beyond its territory they have
no operative force;
(ii) Laws of a state are applicable to all those persons who are
within the realm irrespective of the fact whether they are
permanent residents or casual visitors;
(iii) By comity every sovereign accepts that a law which had come
into operation in its country of origin shall retain its force
where everywhere, provided it does not cause any prejudice
to the subjects of the sovereign by whom its recognition is
sought.
The first two principles embody the doctrine of territoriality; under
the third principle an extraterritorial effect is given to the law
by application of comitas gentium- comity and the pressure of
international commerce require that acts and transactions
entered into validly in one jurisdiction should be upheld in all
other jurisdictions.
The contribution of Dutch jurists to PIL is considerable- they
laid down the rule, which is valid till today, that every state
was free to lay down its own rules of PIL- in reality no state
would exercise this freedom arbitrarily; in fact, each state
applies foreign law by comity.
In 17th and 18th centuries the statute theory was developed
by French & German jurists- political opinions and
contemporary events brought about many modifications in
this theory- doctrines of Grotius in Pub Int law contributed
largely- although the theory was propounded from time to
time by various jurists, two things are common to all the
statutists: (a) they all examine the individual legal rule itself
and consider the question whether it is restricted in its
application to the state which enacted it, or whether it is
equally valid extraterritorially; and (b) they all try to evolve
principles which are meant to apply super-nationally and
super-locally.
International theory:
Savigny is the founder- in 1849 in eighth volume of his work
System of Modern Law he rejected statute theory and
territorial theory- according to him, solution to the problem
did not lie in classifying the laws on the basis of their
object, but in the ability to find out the seat of each legal
relationship, as each legal relationship has its natural seat
in some local law; therefore, even if the law of the forum is
the law of the place which is the seat of legal relationship, it
will be the latter which will be applicable- he maintained
that in a case having foreign element ‘the same legal
relations have to expect the same decision whether the
judgment is pronounced in this state or that state’- he said
that it is essential to keep in mind that there exists an
international community of nations- according to him the
application of foreign law is not based on comity but on the
benefit that it brings to all concerned.
Main postulates of Savigny:
Every legal relation has a seat
The task of the jurist is to find this (he developed many rules to
enable one to find out the seat; he said that seat of a thing was
the place where it was situated; the seat of the capacity of a
person was the place where he was domiciled).
Other protagonists of International theory:
Von Bar of Germany; Westlake of England; Wharton of US; Jitta of
Holland- according to Zitelmann (Germany), PIL is a complete
system capable of resolving every possible case of conflict.
Criticisms: the important criticism is that it starts on the
assumption that there is uniformity in the laws of the countries
on characterisation, while in fact it is not so; for example breach
of marriage promise is regarded as breach of contract in some
countries, while it is regarded as tort in some countries- in such
a situation it is difficult to find out the natural seat of the legal
relationship; in contemporary world there are more than one
systems, of them important one are common law and civil law.
Since the word ‘seat’ is vague, Gierke, who adopts Savigny
substituted with ‘centre of gravity’- the merit of the theory
lies, as Cheshire says, “in the light of all relevant
circumstances, they attempt to decide each case according
to the legal system to which it seems most naturally to
belong.
Territorial theory or the theory of Acquired Rights:
This theory originated with Dutch jurist Huber and elaborated
in England by Dicey and in US by Beale. It is based on the
principle of territoriality- a judge cannot directly recognise
or sanction foreign laws nor can he directly enforce foreign
judgments for it is his own territorial law which must
exclusively govern all cases that require his decision; what
the judge does is to protect rights that have already been
acquired by a claimant under a foreign law or a foreign
judgment.
According to this theory, courts of the country apply
foreign law only to the extent they are permitted to
do so by the sovereign- this aspect makes it resemble
the theory of comity- by some jurists this theory was
also named theory of acquired rights- according to
the protagonists, under PIL courts do not apply
foreign law or enforce foreign judgments, but they
merely recognise and enforce the rights acquired
under foreign law- thus foreign acquired rights are
protected and given effect to, and not the foreign
law- according to Dicey: “English judges never in
strictness enforce the law of any country but their
own and when they are popularly said to enforce
foreign law, what they enforce is not a foreign law,
but a right acquired under the law of a foreign
country”.
The criticism of this theory by the French jurist P. Armingjon
can be summarised as follows:
(1) The theory of acquired rights is nothing but the invocation
of a fiction which is unnecessary and useless.
(2) The theory begs the question and produces a vicious
circle.
(3) It is possible that under the rules of choice of law of a
country it may happen that right which is unrecognised or
repudiated by a foreign law may be enforced by the court
of the forum- for example under the Pakistani law a
Muslim wife is not entitled to maintenance after divorce;
yet the English courts have power to pass a maintenance
order against a Pakistani domiciled husband residing in
England who had divorced his wife. According to Cheshire:
“the theory of vested rights is analytically defective and
inadequate as an explanation of the pattern of rules of
PIL. “
Local Law theory:
It is an offset of jurists of the realist school of jurisprudence- it
is an extreme operation of the doctrine of territoriality-
according to Walter Wheeler Cook, the American
propounder, - no court applies any other law but its own,
nor enforces any right or obligation other than that created
by its own- the propounders of this theory maintain that
when the courts of forum have to decide a case having
foreign elements, they always apply their own law, though
in doing so they adopt and enforce as their own law a rule
of decision identical, or at least highly similar not identical,
in scope with a rule of decision found in the system of law
in force in another state or country with which some or all
the foreign elements are connected. The forum enforces
not a foreign right but a right created by its own law.
This theory is criticised as it affords no basis for the systematic
development of PIL.
Theory of Justice:
This theory is pragmatic and ethical- according to
Graveson its premises are threefold: sociological,
ethical and legal- sociologically it rests on the
international need for fair treatment in the
private transactions of individuals; ethically it
reflects the traditions and training of English
lawyers, judges and legislators as expounders of
justice of their day and age; and legally it rests on
the terms of the judges’ oath. He admits that this
theory is not a perfectly valid theory in every case,
for one cannot explain in terms of absolutes an
empirically developed system like our own.
No one theory can possibly answer the
theoretical bases of PIL- in the 12th
century the principle of territoriality of
laws came into existence and in the
entire Italy the doctrine had its sway; in
the 20th century the same the theory
was propounded in different garbs-
Commonly used expressions:
Lex actus/ lex loci actus: the law of the place where the act
was done or the transaction was completed
lex causae: the law that governs the dispute (the law
identified in the choice of law stage of the conflict process
as the one to be applied to determine the case)
Lex contractus/ Lex loci contractus: the law of the place
where contract was made
Lex delicti/ Lex loci delicti: the law of the place where the
tort or other wrong was committed
Lex domicilii : the law in force in the country or place
where the person is domiciled
Lex fori : the law of the forum, i.e., the law in force in the
court hearing the dispute
Lex loci celebrationis : the law of the place where the
marriage is performed
lex loci solutionis : the law of the place where the
contract was to be performed or the debt paid
lex monetae : the law of the country in whose
currency a debt or monetary obligation is
expressed
lex patriae : the law of the nationality of the
person
lex rei situs/ lex situs : the law of the place where
the property is situated
Propositus : the person whose rights and
obligations are considered