Indian Private International Law

Stellina Jolly, Saloni Khanderia

• Editore: Hart Publishing
• Anno: 2021
• ISBN:
  9781509938209
• Edizione: 1
• Argomento: Law
• Categoria: Conflict of Laws

This book provides an authoritative account of the evolution and application of private international law principles in India in civil commercial and family matters. Through a structured evaluation of the legislative and judicial decisions, the authors examine the private international law in the Republic and whether it conforms to international standards and best practices as adopted in major jurisdictions such as the European Union, the United Kingdom, the United States, India's BRICS partners - Brazil, Russia, China and South Africa and other common law systems such as Australia, Canada, New Zealand, and Nepal. Divided into 13 chapters, the book provides a contextualised understanding of legal transformation on key aspects of the Indian conflict-of-law rules on jurisdiction, applicable law and the recognition and enforcement of foreign judgments or arbitral awards. Particularly fascinating in this regard is the discussion and focus on both traditional and contemporary areas of private international law, including marriage, divorce, contractual concerns, the fourth industrial revolution, product liability, e-commerce, intellectual property, child custody, surrogacy and the complicated interface of 'Sharia' in the conflict-of-law framework. The book deliberates the nuanced perspective of endorsing the Hague Conference on Private International Law instruments favouring enhanced uniformity and predictability in matters of choice of court, applicable law and the recognition and enforcement of foreign judgments. The book's international and comparative focus makes it eminently resourceful for legislators, the judges of Indian courts and other interested parties such as lawyers and litigants when they are confronted with cross-border disputes that involve an examination of India's private international law. The book also provides a comprehensive understanding of Indian private international law, which will be useful for academics and researchers looking for an in-depth discussion on the subject.

PART I

General Principles

1

Introduction

Conflict of Laws, also referred to as private international law, is premised on the assumption that human interactions across borders cannot be determined by reference to one set of laws. Global contracts, e-commerce transactions, cross border marriages, divorces, and insolvency are some of the glowing examples, the effects of which travels to more than one jurisdiction. If diverse municipal legal systems have contributed to the conflicts, the situation is further complicated by contrasting approaches to conflict of laws followed by jurisdictions. The challenges presented by the various national laws and conflict of laws have sought to be remedied by active, broad, and reinvigorated international legal responses aimed at codifying and harmonising the process and principles of private international law. Simultaneously, the increased interactions aided by globalisation, migrations, and the internet in the personal and commercial domain have given it a new boost and fillip. However, the scenario has presented new challenges to private international law with its role and character undergoing rapid transformations. Moving away from its exclusive focus on jurisdictional concerns, the applicable law, and the enforcement of foreign court orders, today, the subject navigates through a strenuous and ongoing determination to produce legal responses in areas much beyond the contracts and family matters. As a result, the harmonisation effort is likely to increase in the coming times to embrace new domains and challenges, including issues of intellectual property, the internet, etc. Despite the many codification attempts furthered by international cooperation, mainly under the aegis of the Hague Conference of Private International Law, the discipline has not attained the desirable certainty and predictability.

India is no exception to this legal predicament. India provides an exponentially expanding yet unripe territory for the study of this subject. Under the forces of globalisation, there is an expansion of economic interaction between India and other countries. The increased financial business is reflected in the number of bilateral commercial agreements and investment treaties signed between India and other countries. Further, the ever-growing Indian diaspora settled mostly in America, Europe, and Australia has thrown innumerable challenges to the operation of private international law in India. Questions frequently arise whether western nations would recognise a marriage celebrated in India. There have been similar questions on the validity of a divorce or a custody order obtained in jurisdictions outside India. Where should the enforcement of such orders be sought?

A matured private international law principle is crucial for the legal infrastructure to facilitate international transactions. Nevertheless, unfortunately, private international law is still in its infancy in India, despite increasingly being called upon to address new legal challenges. Further, though a party to some of the Hague Codification Conventions, India has steadfastly opposed the accession to most of the Hague Conventions, which has furthered complications and uncertainty in transactions having a foreign element. Research into India’s state practice is still developing, and judicial statements are evolving the jurisprudence of private international law. There has been no systematic attempt done to present an Indian perspective on private international law. Several reasons are attributed to the underdeveloped state of private international law in the country.

In most civil law jurisdictions, matters of foreign law are treated as a question of law which obligates the judges to take cognizance of the presence of the foreign law. In contrast, under the Indian legal framework, foreign law is treated as a question of fact, which needs to be proved by expert evidence. There is no judicial obligation to take cognizance of the application of foreign law. For this reason, even in those cases with a definite presence of a foreign element, parties to the case prefer to rely on domestic law, and the court inevitably applies domestic laws. For instance, in the Union Carbide and Others v Union of India and Others,¹ which is popularly referred to as the Bhopal Gas Case, the most significant industrial tragedy in the country, the parties argued the case according to the principles of domestic law – despite the fact that the company and its principal office was located in the US.

Though labelled as the Federal Republic, the Indian legal system is governed by a single unified system of law, with a unified system of judicial administration, notwithstanding the constitutional distribution of legislative powers between the centre and the states. Thus, there has been no scope for developing private international law principles even when matters span across state borders within the Federal set-up. However, the ever-increasing diaspora and the growing commercial interdependence and transactions have provided a platform for expanding the doctrines and principles of private international law. Further, the innumerable cross-border subjects raised before the domestic courts and the inevitability of evaluating foreign judgments have created a compulsion for increased attention to the subject.

The Indian legal system, with its fledgling and highly insufficient apparatus on private international law, has on many occasions presented an ad hoc response towards the three primordial conflict of laws questions – jurisdictional, choice of law, and enforcement concerns – within the dispute domains of commercial law as well as family law. The pattern is often seen as evolving, where the legal system has attempted to read in a few features that were otherwise the prevalent methodology adopted in the English, US, and European systems for disputes with a foreign element. In Lalji Raja and Sons v Hansraj Nathuram² reliance was placed on private international law to support the contention that in a personal action, a decree pronounced in absentia by a foreign court, to the jurisdiction of which the defendant had not in any way submitted himself, was an absolute nullity. The courts also differed from other South Asian jurisdictions in interpreting an exclusive jurisdiction clause. They stressed that the validity of such agreements was not violative of public policy and the notion of national sovereignty. In the seminal case of Modi Entertainment Network and Another v WSG Cricket PTE. Ltd,³ the Supreme Court of India espoused the principle of a ‘sliding scale’ developed in the internet jurisdiction case of Zippo Manufacturing by the courts in the US. Simultaneously, Indian legal systems also developed their unique practices, founded within domestic law. In Y Narasimha Rao and Ors. v Y Venkata Lakshmi and Anr,⁴ the Supreme Court observed that ‘the marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married and no other law.’⁵ In Sondur Rajini v Sondur Gopal, the court further observed that

the time at which the domicile is to be determined is when the parties tie the nuptial knot under the Hindu Marriage Act and not the date when an application is made for matrimonial reliefs. As a natural corollary thereof, even if a party to the matrimonial petition establishes...