PRIVATE INTERNATIONAL LAW ( LLB 507 &LLB 509 )

Chanderprabhu Jain College of Higher Studies & School of Law
Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
Semester: BALLB & BBALLB IX
Name of the Subject:
PRIVATE INTERNATIONAL LAW 507/509
FACULTY NAME: MS.ANNAPURNA
CHAKRABORTY TIWARI
UNIT 1-INTRODUCTION

APPLICATION AND SUBJECT MATTER OF PRIVATE
INTERNATIONAL LAW
Private International Law or International Private Law governs the choice of law to
apply when there are conflicts in the domestic law of different countries related to
private transactions. This means that there is a dispute or transaction that involves one
of the following:
• what jurisdiction applies - choice of court, forum selection, renvoi (transfer of
proceedings)
choice of applicable law
• recognition or enforcement of a foreign judgment. National laws are the primary
sources of Private International Law. Private International Law is also embodied in
treaties and conventions, model laws, legal guides, and other instruments that
regulate transactions.

DISTINCTION WITH PUBLIC INTERNATIONAL LAW
Public international law refers to all the legal rules governing international relations
between public entities such as States and international organizations. In order to
settle a public international law dispute, it is the International Court of Justice (ICJ)
sitting in The Hague (Netherlands) that may be seized. The International Court of
Justice is the principal judicial organ of the United Nations. he main concept of
private international law is the “foreign element”. Private international law is the area
of law that comes into play whenever a court is faced with a question that contains a
foreign element, or a foreign connection. The mere presence of such a foreign
element in a legal matter raises a number of questions and it is the function of private
international law to provide an answer to these questions and to ensure just solutions.

CHARACTERIZATION AND THEORIES OF CHARACTERIZATION
Characterisation, or characterization, in conflict of laws is the second stage of the procedure
to resolve a lawsuit that involves foreign law.
• The process is described in English laws as Characterization,[classification within the
English judgments of the European Court of Justice. It is alternatively known
as qualification in French law.
• It is used to determine the correct choice of law rules based on the circumstances of the
case, primarily relating to matters of property. This is to reconcile differences between
laws of different legal jurisdictions.
• The objective of characterization is to determine the nature of the action brought by the
defendant in order to determine what relevant rules of applicable law apply. This may
result in applying laws which differ from the lex fori.
.

CONCEPT OF RENVOI
The Doctrine of Renvoi is the process by which the Court adopts the rules of a foreign
jurisdiction with respect to any conflict of laws that arises. The idea behind this doctrine is
to prevent forum shopping and the same law is applied to achieve the same outcome
regardless of where the case is actually dealt with.
• “Renvoi” originates from the French “send back” or “return unopened”. The
“Convention of Renvoi” is the procedure by which the Court embraces the principles
of an foreign law as for any contention of law that emerges.
• Types of Renvoi
Under the watchful eye of a judge resort to the principle of renvoi, there is an answer to
the use of internal law in particular. In any case, if there was no space for use of internal
law, at that point the judge may apply the best possible kind of renvoi.

APPLICATION OF FOREIGN LAW
The application of foreign law in practice is often difficult and time-consuming, for a variety
of reasons. The increasing codification of private international law raises questions as to how
legislators propose to cope with the consequential burdens for the administration of justice.
This article provides comparative observations with a view to shedding some light on the
practical difficulties that China, with its relatively recent Private International Law Act, may
wish to consider. A flexible approach to the ex officio application of foreign law, and renvoi,
is encouraged, as well as the use of information-sharing bodies, specialist private
international law institutions and specialist judges for the determination of the content of
foreign law. Moreover, improvements and greater effort in relation to the supply of foreign
legal information, on the international level, can easily be made. In any event, the fallback
solution in cases of difficulty – the application of the lex fori – itself is problematic from the
perspective of incentivizing the application of foreign law.

DOMICILE
• The inception of the concept of domicile is circled with several misconceptions.
Sometimes the term is confused either with nationality or with residence.
• The general view about domicile is 'permanent home' but Lord Cranworth in Whicker v
Hume[1] .The concept of domicile in common law is derived from the Roman law.
• The term domicilium is derived from domum colere, to foster or inhabit the home. There
are three different classes of domicile namely, Domicile of Origin, Domicile of Choice,
and Domicile of Dependence.
• The rules of domicile of origin quite satisfactory reflect the social factors. One acquires it
at the time of his birth and because of its strong tenacity it is hard to lose and it
automatically revives once domicile of choice is extinguished.
• If a person leaves his country of origin with an intention never to return back, his domicile
of origin survives until he has acquired a domicile of choice.

JURISDICTION OF COURTS
• The first question in an international case potentially involving conflict-of-laws
problems is which court has jurisdiction to adjudicate the matter.
• Although the plaintiff decides where to sue, the courts in that location may not have
jurisdiction, or they may have jurisdiction but be unwilling to exercise it, for reasons
of forum non conveniens (Latin: “inconvenient forum”), as may happen in some
common-law countries.
• There are several factors that affect the plaintiff’s decision of where to file a case.
One is convenience. For example, a plaintiff is likely to want to sue in a jurisdiction
that is reasonably close to his home, particularly because witnesses and evidence
may be more readily available there. Legal questions also are important.

UNIT II-FAMILY MATTERS

MATERIALAND FORMAL VALIDITY OF MARRIAGE UNDER
INDIAN AND ENGLISH LAW
According to the English law marriage is considered as a contract by which a man and
a woman' express their consent to create the relationship of husband and wife.
Fundamentally, this type of contract, differs from a commercial contract in the
following t ways-
As a general rule it can only be concluded by a formal public act;
It can only be dissolved by formal public act; and
It creates a status, which is taken into account in relation to (succession, tax,
legitimacy of children, and to some extent in relation to immigration laws.
It has been observed that, while ‘marriage’ may be based on agreement, it is an
agreement sui generis, in that it confers on the parties a particular status.

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The conceptual approach, which English law has adopted in this regard, as in
most other areas of the conflict of laws, requires that positive approach is taken
and that approach is one that is sufficiently flexible to accommodate the foreign
institutions of marriage.
CONCEPT OF MARRIAGE
Until the establishment of the Court for Divorce and Matrimonial Causes in
1857, the Civil Courts had operated upon an ill defined, though widely assumed,
understanding of the Christian marriage. The transfer of the jurisdiction from
ecclesiastical courts and the introduction of the new powers to make financial orders4
made the need for a clear statement of the concept of marriage as understood in English
law all the more pressing.

MARRIAGES IN FOREIGN CONSULATES AND EMBASSIES
The question of the formal validity of marriage celebrated in a foreign consulate a broad
was considered in Radwan v Radwan where in 1951, the husband domiciled in Egypt
married lkbal in Egypt in polygamous form. In 1952, he married the petitioner, Mary, a
domiciled English woman, in the Egyptian Consulate General in Paris, in polygamous
form and their matrimonial home was established in Egypt. In 1953, the husband
divorced Ikbal by talaq. In 1956 the husband and Mary come to live in England and
acquired a domicile there. In 1970, the husband obtained a talaq divorce from Mary in
Egyptian Consulate General in London and then Mary petitioned the English courts for
divorce. This case raises a number of separate issues; first, it mas held that the talaq
divorce in the Egyptian Consulate General could not be recognized in England because
the diplomatic premises were to be regarded as English and not Egyptian territory.

DISSOLUTION OF MARRIAGE
In most states, "dissolution of marriage" is just another way of saying “divorce,” and it
refers to the process by which a couple can end their marriage permanently.
In a few states, however, a dissolution of marriage is not the same as a divorce, because it
does not permanently terminate marital status or because it can only be used for certain
cases, such as where a couple agrees to the dissolution and agrees on how everything will
be resolved (for example, alimony and division of property). For purposes of this article,
we'll focus on the more common use of the term.
Couples can dissolve their marriages by choosing a "no-fault" or "fault" divorce. A "no-
fault" divorce is one where spouses seek to end their marriage without assessing any blame
or fault. In other words, the spouse that requests the divorce (the "filing" spouse) doesn't
need to accuse the other spouse of bad behavior, which led to the separation. Instead, the

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filing spouse can list a "no-fault" reason for the divorce, such as "irreconcilable
differences," which is just a fancy way of saying the couple can't get along
anymore, and there is no real chance that they will get back together. A no-fault
divorce is easier and quicker to obtain than a "fault" divorce, but spouses may be
required to live apart for a certain amount of time. The specific requirements for
a no-fault divorce will depend on the laws of the state where the divorce action
is filed

GROUNDS OF DIVORCE
It is important to bear an understanding of the Applicable Law:
• Indian Divorce Act, 1869 governs the divorce procedure for Christians.
• Hindu Marriage Act, 1955 for Hindu, Jains, Buddhists, and Sikhs.
• Parsi Marriage and Divorce Act, 1936 is followed for divorce procedure in Parsi
couples.
• Procedure and grounds for divorce under the Dissolution of Muslim Marriage Act,
1939 are taken into account for Muslim couples.
In addition to these personal laws, lawmakers keep introducing amendments as needed.

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• Legal grounds for divorce which are widely present in all current enactments on
divorce law:
1.Adultery 2.Desertion 3.Insanity 4.Conversion 5.Renunciation 6.Cruelty
7.Venereal disease 8.Presumption of death
• Recently introduced Personal Laws (Amendment) Bill, 2018 has removed leprosy as
a divorce ground. Some other legal reasons for divorce can be – sodomy, bestiality,
bigamy, and conviction for an offense of moral turpitude such as Rape, etc.

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Section 13 of the Hindu Marriage Act, provides for the grounds on which divorce can be
sought. A decree of divorce can be obtained on the following grounds:
Where the spouse has, after the solemnization of the marriage had voluntary sexual
intercourse with any person other than his or her spouse. Where the spouse has, after the
solemnization of the marriage, treated the petitioner with cruelty.
Where the spouse has deserted the petitioner for a continuous period of not less than two
years immediately preceding the presentation of the petition.
Where the spouse has ceased to be a Hindu by conversion to another religion.
Where the spouse has been incurable of unsound mind or has suffering continuously or
intermittently from mental disorder of such a kind and to such an extent that the petitioner
cannot reasonably be expected to live with the respondent.

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Where the spouse has been suffering from venereal disease in a communicable
form.
Where the spouse has renounced the world by entering any religious order.
Where the spouse has not been heard of as being alive for a period of seven
years or more by those persons who would naturally have heard of it, had that
party been alive.
Besides the above grounds, there are certain more grounds which are
specifically available to wife, mentioned as follows:
At the time of marriage, the husband is already married, has not divorced his
wife and his wife is alive at the time of marriage.

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Where the husband is found guilty of unnatural offenses i.e. sodomy or
bestiality or guilty of an offense of moral turpitude i.e. rape, corruption, etc.
Where her marriage (whether consummated or not) was solemnized before
she attained the age of fifteen years and she has repudiated the marriage after
attaining that age but before attaining the age of eighteen years.

RESTITUTION OF CONJUGAL RIGHTS
A husband has the right to require his wife to live with him wherever he may choose to
reside. On the other hand, it is corresponding duty of the wife to live with her husband.
However, there may be circumstances which compel the spouses to live in different places.
These circumstances may furnish reasonable or just excuse to the wife to live at a different
place. It is for the Court to decide as to whether the circumstances permit the wife to reside
apart from her husband.Law provides that when either husband or the wife withdraws
from the society of the other, the aggrieved party may apply to the Court for a direction
that the other party should live with him or her. (Section 9 of the Hindu Marriage Act).
Such a petition is to be filed before the District Judge.

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The petitioner is to satisfy the Court that the other party has without reasonable excuse
withdrawn from his or her society. So, if your wife has without reasonable excuse
withdrawn from your society, you may file petition before the District Judge for such a
relief. When you file such a petition, Court is to satisfy that you have a bona fide desire to
bring your spouse to your company. Remember, when the Court finds that your own
conduct debars you from seeking this relief of the company of your spouse or a fact shows
that you are taking advantage of your own wrong, Court shall dismiss your petition. (See
section 23 of the Hindu Marriage Act).

RECOGNITION OF FOREIGN JUDGMENTS
The recognition and enforcement of foreign judgments and decrees in India are governed
by Section 44-A, read with Section 13 of the Code of Civil Procedure 1908.
A foreign judgment which is conclusive under Section 13 of the code can be enforced by:
instituting execution proceedings under Section 44-A, read with Section 13 of the code in
the case of ‘reciprocating territories’ (defined below); or
instituting a civil suit on the judgment in the case of a non-reciprocating country.
International conventions
While India is not a party to the Convention on the Recognition and Enforcement of
Foreign Judgments in Civil and Commercial Matters, it has entered into bilateral treaties
with various states regarding cooperation and reciprocity in terms of enforcement of
foreign judgments and decrees.
.

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Section 44A of the code defines ‘reciprocating territory’ to mean a country which
the central government has notified as such in the Official Gazette. Presently, the
countries notified as reciprocating territories are the United Kingdom, Aden, Fiji,
Singapore, the United Arab Emirates, Malaysia, Trinidad and Tobago, New
Zealand, the Cook Islands (including Niue) and the Trust Territories of Western
Samoa, Hong Kong, Papua and New Guinea and Bangladesh

UNIT III- ADOPTION

RECOGNITION OF FOREIGN ADOPTIONS
The practice of inter-country adoption came about largely as a humane response to the
plight of war orphans and the abandoned children of servicemen in World War II, the
Korean War and the Vietnam War.
Today, the main receiving countries are the United States, Canada and the developed
countries of Western Europe. Factors such as the decline in fertility associated with stalling
marriage, the limited success rate and high cost of infertility treatment and a lack of
domestic adoption opportunities have made inter-country adoption an alternative to
childless couples in the receiving countries.
However, in states of origin or sending countries, extreme poverty, lack of contraception
and society’s attitudes to birth of illegitimate children are three major factors leading to the
abandonment of children to institutions. The concept of “male” child also leads to the

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abandonment of the girl child which is an unfortunate reality in our own country.
At global level, it is of course the Convention on the Rights of the Child (the “CRC”) that
now constitutes the basic standard-setting text on adoption. Inter-country adoption is
specifically regulated by the ‘1993 Hague Convention on the Protection of Children and
Cooperation in Respect of Inter-country Adoption’ (the “HC”), which has now been ratified
by about 90 States.
The approach of international legislators to adoption changed at the end of the 20th century
as a result of serious concerns on adoption-related abuses that were being increasingly
expressed at that time.
CRC Article 21 includes the obligation to ensure that the child concerned in inter-country
adoption enjoys safeguards and standards equivalent to those existing in the case of national
adoption.

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CRC places major emphasis on the importance and role of the parents and family
as the child’s primary caregivers, and requires, first and foremost, States to assist
them when they have difficulty in fulfilling their responsibilities appropriately.
Only when, despite such efforts, the child is “deprived of his or her family
environment”, or cannot be allowed to remain therein in light of his or her best
interests, does the obligation of the State to “ensure alternative care for the child”
becomes operative. And it is only when, in that case, the State is unable to ensure
that the child is “placed in a foster or an adoptive family” or is cared for “in any
suitable manner in the child’s country of origin” that inter-country adoption “may
be considered”.

ADOPTION BY FOREIGN PARENTS
Adoption of Indian children by foreign nationals or International Adoption is a
controversial issue. In foreign countries there are innumerable cases of Indian Orphans
being given secured and loving homes. But on the other hand some of the children have
been used as domestic servants, beggars and even for prostitution. In the matter of L.K.
Pandey v. Union of India, SC has laid down certain guidelines that have to be followed in
the case of foreign adoption in an attempt to safeguard the interests of the children. Foreign
Nationals adopt an Indian child under provisions of the Guardian and wards Act, 1890.
Indian Court will appoint the foreigner as the Childs guardian. The foreign National will
take the child to his country and adopt him or her as per laws of his country. Adoptions are
regulated by CARA (Central adoption resource authority). CARA pointed out some of the
loopholes in Indian Adoption. CARA specifies the eligibility conditions, processing steps,
documentation, costs, court processes, foster care conditions, issuance of birth certificates

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and post adoption follow ups. In India millions of children are bound to live the life of
orphanage and destitute. Today when any child is adopted we are proud of giving a decent
homely life to the child. But in the absence of the common adoption code for all community
members, we cannot hope the expected results. So now it is a time to reassess our laws and
regulations that deal with cases of Intra country and Inter country adoptions. Government
cannot try and plug loopholes in one act by amending another. The most obvious feature of
the Indian system for foreign adoptions is its bureaucratic layering of multiple institutions
that must approve each adoption. By creating a system where multiple institutions must
approve each adoption, within the context of a system often suffering from corruption
through bribery and personal connections, safeguards can instead become opportunities for
abuse. The system of adoption can become one where, in order to get an adoption through
the system, an individual has to either have certain personal connections, or else be willing

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palms.” Once it becomes apparent that approvals are based on such personal
connections or monetary inducements, incentives to follow the rules may
disappear. Hence it’s a high time that adoption laws in India need an amendment to
bring in grater uniformity for all religions but it needs to be done more
systematically. Because of uncertainty of laws governing adoption and inter
country adoption in India there arises the problem of conflict of laws. Thus the
legislature has to take an imitative firstly to make a uniform adoption laws for all
persons living in India and also to make a concrete legislation on inter country
adoption.

JURISDICTION UNDER INDIAN AND ENGLISH LAW
Meeting the eligibility criterion and adopting parent must hold the capacity to adapt.
Visiting any voluntary coordinating institution or Child Welfare Agency in the region where
they wish to seek or presently reside.Understanding the requirements of the respective
institution and registering after filing an application form.
• The Agency conducts a preliminary interview where they evaluate the intention and
reason behind adoption and other relevant factors like emotional health, quality of
marital relations, financial and family background, their attitude towards adoption etc.
• The Agency also verifies documents as submitted along with the application form.
• The institution seeks a placement agency for adoption that meets the legitimate
eligibility conditions as required by the Act as well as the application filed by the
adopting person.

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• A ‘Home-Study’ report is formed for vetting and consideration by the
institution.A meeting is arranged between the adopting parents and the child as
found suitable by the agency. Adopting parents may appoint a doctor for
medical examination of the child. As the decision is made by adopting parents,
they can file a petition for adoption before the court of appropriate jurisdiction.
The Court calls the parties for hearing and is required to settle the adoption
case within 2 months from the date of submitting the application. After
receiving the decree from the court, the adoption is final & binding.
• The role of the institution continues as they have to do a periodical post-
adoption follow up.

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Once the valid adoption is done, it can’t be rescinded by the adoptive parents and
also the adopted child also can’t retreat back to his/her biological parents.
If there is any fraud in the adoption proceedings, only the court has the authority to
cancel the adoption decree.

UNIT IV- :INDIAN LAW
RELATING TO FOREIGN
JUDGMENT

BASIS OF RECOGNITION, RECOGNITION
Recognition of a foreign judgment requires that the rendering court had jurisdiction, but
how to determine this is not always clear. Whether jurisdiction exists under the rendering
court's own law (‘direct jurisdiction’) is normally decided with preclusive effect by the
rendering court. Exceptions to the preclusive effect exist for default judgments, which are
therefore excluded from many domestic and international enforcement regimes. However
one State's rules on jurisdiction are not binding on another State's decision to recognize an
ensuing judgment since no State can bind another in this regard. Nor should they be
binding: whether the assertion of jurisdiction is sufficient for purposes of recognition
(‘indirect jurisdiction’) is a different question both analytically and in terms of the relevant
consideration, and the enforcing court addresses it independently. If the enforcing State
claims exclusive jurisdiction in an area, recognition of a foreign decision in that area is
usually denied. France had long protected the privilege of its own nationals to sue and be

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sued in France by denying enforceability to judgments rendered abroad against French
nationals who had not submitted to the foreign court's jurisdiction; the French Cour de
Cassation changed this principle in 2006 (Prieur v de Montenach). Where no exclusive
jurisdiction is claimed, some States borrow the rules applicable to indirect jurisdiction from
their own ordinary jurisdiction rules of the enforcing State (‘mirror principle’). Other
States, more appropriately, develop specific rules for recognition purposes. However,
attempts to determine a ‘natural forum’ whose decisions must necessarily be recognized
have failed because the concept is neither sufficiently specific nor sufficiently well
grounded in international law. Most enforcement treaties and conventions contain rules on
indirect jurisdiction. Older treaties require, non-specifically, that a decision be rendered by
the ‘natural judge’. Several treaties adopt the mirror principle and require enforcement of
judgments resting on a jurisdictional basis that is recognized by the enforcing court. More

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modern treaties often lay out relatively detailed lists of either required bases: Courts are
required to enforce judgments rendered on these bases, provided other requirements are
met; or excluded bases: Courts are precluded from enforcing judgments rendered on these
bases. Conventions that have rules on indirect jurisdiction only are called ‘single’ or
‘simple’ conventions. By contrast, so-called ‘double’ conventions also regulate direct
jurisdiction and thereby relieve the enforcing court of reviewing indirect jurisdiction (1869
French-Swiss Treaty, 1899 Convention between Belgium and France relative to the
Enforcement of Judgments etc (‘Belgian-French Treaty’), Brussels I Convention, Brussels I
Regulation and Brussels IIa Regulation). The projected Hague Judgments Convention
(Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments in
Civil and Commercial Matters) would have been a socalled ‘mixed’ convention, because it
contained a third category of jurisdiction beyond required and prohibited, namely

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permitted. Countries are free to assert permitted bases of jurisdiction, but other States are
free to deny recognition to ensuing judgments. The Hague negotiations failed in part
because countries realized too late the advantages of having three categories; moreover,
they never realized fully that these three categories, combined with the distinction between
direct and indirect jurisdiction, would have given them a plethora of analytically different
options. Future negotiators may be able to use these experiences for a convention that can
calibrate more exactly where agreements exist and where disagreements are too great to
overcome.

FINALITY, FAILURE
The finality of an award is a key feature and attraction of arbitration as a method of dispute
resolution. When an award is annulled at the seat, however, enforcing courts in secondary
jurisdictions must decide between enforcing the award or honouring the seat-court’s
nullification. This issue assumes significance in light of the recent judgment of the US
Court of Appeals for the Second Circuit in Thai-Lao Lignite (Thailand) Co., Ltd. v. Laos
No.14-597 (2d Cir. 2017)
Article V (i)(e) of the New York Convention provides that “the recognition and enforcement
of the award may be refused if the award …..has been set aside or suspended by a
competent authority of the country in which, or under the law of which, that award was
made.” The use of the word “may” suggests a discretion granted to the courts, where
recognition and enforcement of a nullified award is sought. Courts in the United States have
applied varying interpretation of this language.
In

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Chromalloy Gas Turbine Corp. v. Egypt, 939 F.Supp. 907 (D.D.C. 1996) the US District
Court for the District of Columbia recognized an award rendered in Egypt, despite the fact
that the award had been annulled by an Egyptian court. The US Court read the discretionary
standard of Article V, along with the mandatory standard in Article VII of the New York
Convention, which requires that “the provisions of the present Convention shall not…
deprive any interested party of any right he may have to avail himself of an arbitral award
in the manner and to the extent allowed by law… of the country where such award is sought
to be relied upon..” However, the court did not analyse in detail, whether the “right”
referred to in Article VII survived the annulment of the award in the seat. The court
considered this to be a case of first impression, and reasoned that recognizing the seat’s
annulment of the award would be contrary to the US pro-arbitration public policy. The court

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concluded that the award was valid under US law.
The US Court of Appeals for the Second Circuit applied a different interpretation, however,
in Baker Marine (Nig.) Ltd. v. Chevron (Nig.) Ltd., 191 F. 3d 194 (2d Cir. 1999).There,
the Second Circuit recognized Nigerian courts’ judgments setting aside an arbitral award,
on the ground that “no adequate reason was shown for refusing to recognize” them. The
court in Baker Marine also cautioned against forum shopping, stating that “a losing party
will have every reason to pursue enforcement actions in every country until a court is found
which grants enforcement.” Subsequent cases reaffirmed Baker Marine.
See Spier v. Calzaturificio Tecnica, S.p.A., 71 F.Supp.2d 279, 288 (S.D.N.Y.
1999) (stating that “when a competent foreign court has nullified a foreign arbitration
award, United States courts should not go behind that decision absent extraordinary
circumstances”); TermoRio v. Electranta, 487 F.3d 928 (D.C. Cir. 2007) (declining to
enforce an award nullified by a

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Colombian court because the arbitrators’ procedures had violated Colombian law, the law
governing the arbitration).
In Pemex Corporacion Mexicana De Mantenimiento Integral v. Pemex Exploracion Y
Produccion, 962 F. Supp. 2d 642 (S.D.N.Y. 2013) (as affirmed by the Second Circuit ),the
United States District Court of New York declined to recognize an award-nullification by
the Eleventh Collegiate Court on Mexico, on the ground that the nullification “…violated
basic notions of justice” by applying a law retroactively to favour a state enterprise over a
private party.

DIRECT EXECUTION OF FOREIGN DECREES
Multilateral trade and international commercial transactions have led to a steep rise in
international commercial disputes. India is a major global player in the world economy;
therefore laws related to enforcement of foreign judgments are of utmost importance to the
foreign investors interested in entering the Indian market. Foreign decrees in India are
enforced solely according to the provisions of the Code of Civil Procedure, 1908 (CPC).
A decree is defined in section 2(2) of the CPC and judgment is defined in section 2(9). A
judgment decides the rights and liabilities of the parties, whereas a decree follows the
judgment and is its operating part. The civil procedure code also provides for the definition
of a foreign judgment under section 2(6). The bare perusal of this section suggests that, a
'Foreign judgments' is a judgment given by a court that is situated outside India or where
the cause of action in a case arises out of India.

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A foreign judgment in India can be enforced in the following ways:
Decrees from Courts in "reciprocating territories" can be enforced directly by filing before
an Indian Court an Execution Decree.
Judgments from "non-reciprocating territories," such as the United States, can be enforced
only by filing a law suit in an Indian Court for a Judgment based on the foreign judgment.
The foreign judgment is considered evidentiary. - The time limit to file such a law suit in
India is within three years of the foreign judgment.
Execution of foreign Decrees by reciprocating territories in India is governed by section
44A, CPC. The said section explains the execution of any decree passed by a reciprocating
territory, i.e. any

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country or territory outside India which is declared to be a reciprocating territory by the
central government.
RECIPROCATING TERRITORY:
"Reciprocating Territory" is defined in explanation 1 to Section 44A of Civil Procedure
Code as:
"Any country or territory outside India which the Central Government may, by notification
in the Official Gazette, declare as a reciprocating territory."
The List of Reciprocating Territories under the Civil Laws in India are United Kingdom,
Singapore, Bangladesh, UAE, Malaysia, Trinidad & Tobago, New Zealand, the Cook
Islands (including Niue) and the Trust Territories of Western Samoa, Hong Kong, Papua
and New Guinea, Fiji, Aden.

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In case of R.I. Ltd. vs. I.G Ltd2 it was held by Hon'ble Supreme Court that "Where
People's Republic of Bangladesh was declared as the reciprocating territory for the
purpose of section 44A, the decree passed by courts of district and subordinate
judges in Bangladesh specified as superior courts could be filed and executed
under section 44A"
JUDICIALAPPROACH:
The essence of section 44A was best explained by the Supreme Court in the
case, M. V. AL. Qumar v. Tsavliris salvage (international) Ltd., where the court
held that, "S.44A is an independent provision enabling a set of litigants whose
litigation has come to an end by way of a foreign decree and who is desirous of

enforcement of the same. It is an authorization given to the foreign judgments and the
section is replete with various conditions and as such independently of any other common
law rights and is an enabling provision for a foreign decreeholder to execute a foreign
decree in this country."
Further, in the case of M.V AL. Qumar it was held that, "Section 44A gives a new cause
of action irrespective of its original character and as such, it cannot be termed to be
emanating from the admiralty jurisdiction as such....and also that, enforcement of a foreign
decree is different from scheme of domestic execution"
Enforcement under section 44A is barred by the exceptions enshrined in in section 13 of the
CPC.

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PRIVATE INTERNATIONAL LAW ( LLB 507 &LLB 509 )

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PRIVATE INTERNATIONAL LAW ( LLB 507 &LLB 509 )