LO 0709
Private International Law :
Objectives of
the Course : Private International Law, also known as conflict of laws, is
a national law, consisting of rules that enable finding that law of that
country which will govern disputes among private parties that involve a foreign
element.
This course is important for every student interested
in developing civil and commercial practice relating to cross border issues
involving contracts, property, succession, marriage, divorce, and adoption.
Study of this law will also give an international and comparative perspective to
the study of different laws required in practice of civil law.
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Module 01 |
Introduction : 1.
Meaning and definition of Private
International Law 2.
Historical development of Private
International Law and Indian Private International Law 3.
Nature, scope, theories and sources of Private
International Law 4.
Relationship between Public International Law
and Private International Law |
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Module 02 |
Characterization : 1.
Meaning, and nature of problem requiring
characterization 2.
Concept and theories of characterization -
based on lex fori, lex causae; Two-fold characterization (primary
and secondary), Comparative Law 3.
Process and stages of characterization - a)
Characterization of factual situation b) Characterization
of connecting factor |
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c) Characterization of proper law 4. Doctrine of renvoi :
Meaning, process and theories of renvoi a)
The mutual disclaimer theory b) The
theory of renvoi proper c)
The foreign court theory |
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Module 03 |
Domicile as a
Connecting Factor : 1.
Meaning and definitions 2.
Acquisition of domicile - a)
Domicile of independent persons :
Domicile of origin; Domicile of choice: residence and intention,
abandonment of domicile of choice, comparison between domicile of origin and choice;
Domicile of refugees, fugitives b) Domicile
of dependents : married women, minor children, lunatics c)
Domicile of legal persons |
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Module 04 |
Law of Property : 1.
Characterization - movable and immovable
property 2.
Transfer of immovable property, concept of lex situs, capacity and formal validity of transfer, the Mozambique rule
and exceptions 3.
Transfer of tangible and intangible movable
property, meaning, Theories - lex
domicile, lex actus, lex situs and proper law; Issues in
transfer of tangible movables, Assignment of intangibles - debts and
documents, voluntary and involuntary assignment |
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Module 05 |
Law of Contractual
Obligations : 1.
Proper law of contract - meaning and nature,
freedom of choice, implied choice of law, Real and substantial connection
theories 2.
Validity and formation of contract - creation of contract, formal and material
validity, capacity, contracts contrary to public policy and procedural law 3.
Interpretation of contract 4.
Discharge of contract - performance and
impossibility of performance, lex loci
contractus and lex loci solutionis |
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Module 06 |
Law of
Non-Contractual Obligations : 1.
Tortious act, and lex loci delicti 2.
Theories - lex
fori, lex loci commissi and proper law or social environment 3.
Jurisdictional issues - cause of action and locus delicti, Choice of law - the English approach 4.
Defences |
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Module 07 |
Marriage and
Dissolution of Marriage : 1.
Marriage - the nature of marriage and
polygamous marriages, Characterization of marriage, Validity of marriage -
material and formal validity; English and Indian law 2.
Dissolution of marriage, grounds for divorce,
jurisdiction - residence, choice of law, recognition of foreign divorce in
India |
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Module 08 |
Legitimacy,
Legitimation and Adoption : 1.
Legitimacy and legitimation - meaning, English
law and Indian law, Choice of law 2.
Adoption - position in Indian and English law,
Hague Conference on Private International Law |
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Module 09 |
Foreign Judgments : 1.
Recognition and enforcement of foreign
judgments - Theories - comity, obligation, judicial reason, harmony, Indian
Law 2.
Recognition of foreign judgments - Conclusive
and final judgment, Defences against enforcement of foreign judgments, Rule
of res judicata, Reciprocity 3.
Execution of foreign judgments by Indian
courts |
Recommended Readings :
1. Dicey,
Morris & Collins, Conflict of Laws,
Sweet and Max well 15th ed., 2016.
2. James
Fawcett and Janeen M Carruthers, Cheshire
and North’s Private International Law
Oxford University Press, 14th ed., 2008.
3. Setalvad,
Atul M., Conflict of Laws, Lexis
Nexis, 2014.
4. Paras
Diwan, Private International Law : Indian
and English; Deep & Deep, 2008.
5. K.B.
Agraawal & Vandana Singh, Private
International Law in India, Wolters Kulwer International, 2010.
6. Universal
Law Series, Private International Law, Universal
Law Publishing, 2016.
7. V.
C. Govindraj, The Conflict of Laws in
India- Inter-Territorial and Inter-Personal Conflict Oxford University
Press, 2011.
Conventions and Indian Statutes to be Referred :
1. Hague
Codification Convention on Private International Law.
2. Convention
of 15 June 1955 relating to the settlement of the conflicts between the law of
nationality and the law of domicile.
3. Convention
of 1 June 1956 concerning the recognition of the legal personality of foreign
companies, associations and institutions.
4. Convention
of 24 October 1956 on the law applicable to maintenance obligations towards
children.
5. Convention
of 15 November 1965 on Jurisdiction, Applicable Law and Recognition of Decrees
Relating to Adoptions.
6. Convention
of 1 June 1970 on the Recognition of Divorces and Legal Separations.
7. Convention
of 14 March 1978 on Celebration and Recognition of the Validity of Marriages.
8. Principles
on Choice of Law in International Commercial Contracts 2015.
9. Convention
of 1 February 1971 on the Recognition and Enforcement of Foreign Judgments in
Civil and Commercial Matters.
10. Relevant
Indian Legislative provisions under Law of Contract, Civil Procedure Code,
Family Law and Law of Property.
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