1.

Introduction:-

Private international law is that part of the law of any State which comes into operation when a
court is called upon to determine a suit containing a foreign element. Such a foreign element may
exist, for instance, because a contract has been made or is to be performed in another State or
because the recognition of a divorce obtained by persons domiciled abroad may arise. Because
the courts of the other State may also be asked to exercise jurisdiction in the suit, or because the
laws of that other State may be different to those of Ireland, in determining the proceedings
before it, an Irish court may be confronted with a conflict of laws1. Such conflicts are resolved
by applying the rules of private international law.

To varying degrees the rules of private international law which have been developed in Ireland
will be different to those developed in other States and indeed there are probably as many
systems of private international law rules as there are States and therefore national legal
systems2.

First of all, I would stress that we all know that Roman Law Greek and Roman political and
legal genius has been the very foundation and framework of European legal development. Both
Greece and Rome had developed domestic and international commercial activities, supported by
equally developed and sophisticated laws and rules in all or in most public and civil law matters.
They, of course, covered also relationships and cases with foreign elements.

The question may be asked: Do we see in that distant legal world a milestone of what we are
talking about? A milestone around which legal thinking generated comparative substantive or
conflict of laws ideas and rules to serve the respective needs of Greek and Roman antiquity?

The answer is yes and no?

The yes answer is very strong. Both Greece and Rome developed and constantly improved
domestic substantive law instruments and forensic practice. These laws and practice were
applied also with respect to cases with a foreign element. The Jus peregrini also was
substantive Roman law. These propositions are well evidenced by the works of, e.g., Aristotle
and Plato, and the vast body of laws and regulations represented by the Roman Corpus
IurisCivilis. As to the substantive law structures, the mutual learning and influencing process
as a result, the harmonizing effect was very strong.

Private International Law has developed as a system very recently. Judicial decisionshave
contributed largely in shaping this branch of law but it is also influenced bycontinental thoughts.
It is necessary to focus on its historical development before anyserious discussion on Private
International Law issues.

1
http://www.dfa.ie/home/index.aspx?id=366- Oct 5th / 2013
2
Ibid-1

1
Adequacy of principles of private international law cannot be understood unless we know from
where principles and concepts have originated and how they developed from centuries.3

In course of its evolution, jurists also sought to analyze the foundations of private international
law in order to provide its concepts and rules which could explain its working.

In this project, the relevancy of studying the historical background, namely the so called
Historical method in legal research is given by reference to several well known legal and other
researchers like Julias stone, benzamine Cardozo, C.K Allen, Pauline.V Young. The limitations
of the historical methods are also given. The historical and political circumstances in which
conflictual questions arise are briefly discussed. There after historical evolution is narrated in
ancient Roman and medieval period.4

Specifically wherever due to historical ,political circumstances and legal systems came to
overlap each other or were forced to take cognizance of another legal system or came to conflict,
each other, then private international law said to have arisen.

In West, Conflict of Laws first arose in Roman empire which spread over Southern Europe,North
Africa and West Asia when Roman Magistrates were called upon to settle the disputes between
the people of different nationalities.5

Theoretical thinking and systematic formulation of the subject was done in Europe in the Middle
ages, particularly by the Italians. In England subject was developed in 19th century and
thereafter, the country became an Empire. Many Theories have evolved providing a rational
explanation to its rules.6 The private international aw of the Continental countries have an earlier
history. We would survey of historical antecedents of the private international law of the
Continental Europe, and India.

2. History of Private International Law:-

The first instances of conflict of laws in the Western legal tradition can be traced to Greek law.
Ancient Greeks dealt straightforwardly with multistate problems, and did not create choice-of-

3
Private international Law in India- by F.E.Noronha, p.g 16.
4
Benjamin Corodozo,The nature of judicial process, Universal Publication Pvt Lmt-P-36
5
C.KAllen,TheLawinMaking,1997http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA14&lpg=PA14&dq=
C.K+Allen,+The+Law+in+Making,+1997&source=bl&ots=xeVkHucgip&sig=sxCndAPWS1J-t8eCK2KX4cWp-
os&hl=en&sa=X&ei=-
m1zUsnwBIaJrgeTv4HYCQ&ved=0CDkQ6AEwAw#v=onepage&q=C.K%20Allen%2C%20The%20Law%20in%
20Making%2C%201997&f=false-Oct 4th /2013
6
Pauline V.Young, Scientific Social Surveys and Research, p-148-
http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA15&lpg=PA15&dq=Pauline+V.Young,+Scientific+So
cial+Surveys+and+Research,+p-
148&source=bl&ots=xeVkHuchms&sig=lEHYLfUKM6AfPcv3VNMYZhWWbMQ&hl=en&sa=X&ei=iG5zUv-
NOIGNrQeYzIGgAQ&ved=0CCgQ6AEwAA#v=onepage&q=Pauline%20V.Young%2C%20Scientific%20Social
%20Surveys%20and%20Research%2C%20p-148&f=false-Oct 6th /2013

2
law rules. Leading solutions varied between the creation of courts for international cases, or
application of local law, on the grounds that it was equally available to citizens of all states.

More significant developments can be traced to Roman law. Roman civil law (Jus Civile) being
inapplicable to non-citizens, special tribunals had jurisdiction to deal with multistate cases. The
officers of these specialized tribunals were known as the Praetor Peregrini.7 The Praetor
Peregrini did not select a jurisdiction whose rules of law should apply. Instead, they "applied"
the "Jus Gentium." The Jus Gentium was a flexible and loosely-defined body of law based on
international norms. Thus the Praetor peregrini essentially created new substantive law for each
case. Today, this is called a "substantive" solution to the choice-of-law issue.8

The modern conflict of laws is generally considered to have begun in Northern Italy during the
late Middle Ages and in particular at trading cities such as Genoa, Pisa and Venice. The need to
adjudicate issues involving commercial transactions between traders belonging to different cities
led to the development of the theory of Statuta, whereby certain city laws would be considered
as StatutaPersonalia "following" the person whereby it may act, and other city laws would be
considered as StatutaRealia, resulting in application of the law of the city where, e.g., the res
would be located (cf. lexsreisitae)9.

3. Ancient Roman Law:-

Roman Law is regarded as the foundation of Civil Law system or Continental Law. Though it
cannot be said that any Theory of Private International Law or Conflict of Laws developed in
Private International Law, The Roman Law, the condition, circumstances and problems and
questions arising in leading to such theory were very present in period Roman imperial period. 10

Roman jurisprudence given birth to certain basic concepts, principles, rules and approaches as
follows:-

a) Concept of Domicile, which thereafter, in Common Law, became the connecting factor
for determination of Personal Law, i.e status, capacity and the like as a contrasted with
Nationality and Citizenship which are the connecting factors of Civil Law.11

b) The Rule of LexSitus that immovable property is governed by Law of Place where it is
situated.12

7
Supra-6
8
Conflict of Laws-Encyclopedia Britannica- http://www.britannica.com/EBchecked/topic/333023/conflict-of-laws-
Oct 3rd / 2013
9
Supra-5
10
For history of Rome and Civil Law, Andrew Borkowski, Text Book on Roman Law. P-363.7th Edition.
11
Paras Dian and PeeyushiDiwan-Private International Law-4th edition-P-59
12
R.H Gravson, The Conflict of Laws, London-Sweet nad Max Well Limited,6 th edition 1969, p-30-
http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA15&lpg=PA15&dq=Pauline+V.Young,+Scientific+So
cial+Surveys+and+Research,+p148&source=bl&ots=xeVkHuchms&sig=lEHYLfUKM6AfPcv3VNMYZhWWbM

3
 c) The personal Law:- In terms of which in areas personal to subject like family law:
Succession, Marriage, the individual would be governed by the law of his place of origin
and community to which he belongs and carried that law with him whenever he want.13

The contribution of Roman legal system towards the evolution of Private International Law is
the rules of Origin and Domicilum i. e. law of natives and alien. A person had his Origin in the
place to which his father or mother (if he is illegitimate) belonged. Domicilium meant the
relation between a man and the urban community which he had chosen for his permanent
residence. Roman civil law ( jus civile) being inapplicable to non-citizens, special tribunals had
jurisdiction to deal with multi-state cases. The officers of these specialized tribunals wereknown
as the Praetor Peregrini14.

The Praetor peregrine did not select a jurisdiction whoserules of law should apply. Instead, they
"applied" the Jus Gentium. The Jus Gentium was aflexible and loosely-defined body of law
based on international norms. Thus the praetor peregrine essentially created newsubstantive
lawfor each case. Today, this is called a"Substantive" solution to the choice-of-law issue15.

a. Ancient Era-

All the conditions that could be said to be essential for the development of rules of private
international law were present during the Roman Empirehas its own law. To the Roman
citizens the Roman law applied and to the citizens of provinces, the provisional law
applied.Disputesbetween Romans were decided under the Roman Law. But the disputes
between citizens of provinces ( who were aliens of Romans) were decided by a different law,
called law of nations.16 This seems to be the reason that, despite ideal conditions for the
development of private international law during the Roman Empire. Thus, the Corpus
JurisCivilis does not contain even a word on the application of foreign law in any situation.

After the fall of Roman Empire:

After the fall of Roman Empire law again became personal. In such system, the rule of law to
which the defendant belonged must prevail. So, there was no scope for the growth of Private
International Law. With the fall of Roman Empire, begins the era of personal laws, which
covers roughly a period four centuries, from 6th to 10th century17. This ended the territoriality
of Roman Law. The implication of law becoming personal was that whenever a person went,

Q&hl=en&sa=X&ei=iG5zUv-
NOIGNrQeYzIGgAQ&ved=0CCgQ6AEwAA#v=onepage&q=Pauline%20V.Young%2C%20Scientific%20Social
%20Surveys%20and%20Research%2C%20p-148&f=false- Oct 4th/ 2013
13
Private international Law in India- by F.E.Noronha, p.g 16.
14
Infra-15
15
http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law- Sep 28th/ 2013.
16
ParasDiwan- Private International Law- Fourth edition.P.g no- 53
17
Ibid

4
 he carried his law with him. Thus a Saxon was governed by Saxon law and Sabian was
governed by Sabian law, where ever he might go. Only under one exception that same
criminal law applies. To all persons, Sometimes, Parties themselves specified the law by
which their transactions would be governed. It is likely that in such type of situation some
cases of conflict of personal laws might have arisen. But no coherent picture is discernible18.

In 11th and 12th centuries:-

Gradual development of feudalism in North and growth of Italian cities in the South, in 11th and
12thcentury gave rise to the territorial nature of law. A large number of cities
likeFlorence,Bologna, Milan and Padua emerged. Each of these cities was subject todifferent
system of laws which were applicable to the residents therein.19

The 11th and 12th centuries witness the exit of era of personal laws and replacement by era of
Feudalism in North of Alps and of the city sates to South Alps. It is a remarkable historical
development that two diverse tendencies put the application confined only to era of personal
laws to an end.20 During this period in England, France , Germany and Netherlands and other
countries feudalism came into existence21.

b. The Medieval Era:Statutists and Glossators:-

In 476 A.D with the fall of Rome to the Barbarians, an Era of personal law commenced in terms
of which the members of each tribe were governed by their respective laws and they lived under
their own wherever they might be.22

During the Middle Ages(476-1453 A.D), Feudalism prevailed in Europe which made law again
territorial. As a part of renaissance i.e., revival of classical Graeco- Roman culture of Northern
Italy very particularly Bologna as also Ravenna, Pavia and Verona scholars began to re-study
Justians forgotten Digest of Civil Law by glossing over the ancient text and writing their
nothings or glosses in the margins thereof (the word Glossa in Latin means a difficult
word).23

The scholars known as Glossators and their 13th century successors known as post-glossators
evolved their own solution to the problem arising through the conflict of laws among the city
sates of Italy.24

18
Ibid-12
19
Supra- 11
20
Supra-12
21
Supra-16
22
R.H.Graveson, Vol-1, p-586
23
Infra-21
24
EugenF.Scoles,-Peterhey,ConflictoflawsP-8-
http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA17&lpg=PA17&dq=Eugene+F.Scoles,+Peter+hey,+Co
nflict+of+laws+P-8.&source=bl&ots=xeVkHudfmp&sig=ZtUYlChl-Qgta7v-

5
During the 12th and 13th centuries in the city states of Italy like Florence, Venice, Genoa, Milan
though nominally the Roman Law was still in force, yet each of them developed their
characteristic local laws called Statuta.25

Two basic questions arose frequently:-

a) Whether the statutes of a City States are applicable to foreigners

.
b) Whether the effects of Statute extend outside its territory and whether they are
applicable to persons originally from its territory but now residing else where.

13th to 18th Century:

With the development of commerce and transaction dispute arose between individuals of two
cities of Italy. Jurists tried to solve those problems by focusing on rules of Roman law, who are
known as Glossators. However, the early Glossators were not so muchsuccessful to this end, but
the post-Glossators in 13thcentury were. The post Glossatorsdiscovered the Statute theory.
According to this theory law can be divided into twocategories: I. Real Statute and II. Personal
Statute. This was aslo the age of revival of Roman Law.26In middle ages the word statute meant
any law or custom which prevailed in any city of Italy contrary to Italian Law.

The main purpose of real statute is to regulate things and the purpose of personal statuteis to deal
about personal matters. Real statutes were considered essentially as territorialwhile personal
statutes were personal. The law of person would be applicable unless such personal law was
opposed to the Public Order of the city. Bartolus was a greatestscholar amongst other during
this period. However, this theory was not perfect asclassification of real and personal was not
unanimous amongst cities and thedefinition of public order was not clear27.

4. Origin and Development of Private International Law in England:-

Medieval Era:-

Although from very beginning England had several systems of law and hence the possibility of
conflict of laws and need for their resolution could have existed, but for several historical
reasons, the rules of private international law could not develop before the 17th century.28 The
dominant reason for this state of affairs was the steam- rolling rule that to all suits before the

02Pvrd_N83I&hl=en&sa=X&ei=pXFzUqfeHs2TrgeumoGgDA&ved=0CCsQ6AEwAA#v=onepage&q=Eugene%2
0F.Scoles%2C%20Peter%20hey%2C%20Conflict%20of%20laws%20P-8.&f=false- Oct 7th/ 2013
25
Private international Law in India- by F.E.Noronha, p.g 17
26
Supra-12.
27
Origin and Development of Private International Law- by S.M MasumBillah- 15th Jan 2010.-
http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law
28
Supra-26

6
English courts, the rules of English law applied. Thus in the middle ages there never arose a case
of conflict of jurisdiction.

The comparative geographic isolation of England from the continent was an obstacle inshaping
private international law in UK. It is true that in England there were two sets of legal rules one
was equity administered by chancery courts and another was common lawadministered by
common law courts. But this conflict should not be confused with theconflict of choices of law.
Equity and Common law were two sets of legal rulesapplicable in the same country.When
Scotland was unified with England a new situation arose. England was influenced by Anglo-
Saxon Law while Scotland was influenced by Roman law. Then there weresome obvious conflict
of laws with the unification of Scotland and England. The problemof this kind was firstly arisen
in Calvins Case.29

In some cases, English courts showed their willingness to take evidence of foreign law. In
seventeenth century drew blank in development of private international law. In seventeenth
century a rule of English Law also laid down that English courts had no competence to take
cognizance of foreign suits. At that time England had some special courts which entertained
thecomplaints of foreigners or to hear disputes relating to trade or commerce. In the latter case
courts applied the Law of Merchants which was a universal law and not the law of any country.30

In that case the English courts had torecognize and apply the laws of Scotland. From that time
Private International law inEngland has been developed by judicial decisions from case to case
and situation tosituation.The first treatise on Conflict of Laws was written by famous jurist
Joseph Story (1779-1845).31 Westlake and Dicey followed him. The main concern of their
writings is attaining justice in a given case involving foreign element. To be able to do justice in
a case theyhave formulated the Rules of Conflict of Laws.

Thus in the beginning of the seventeenth century, although the English courts could entertain
suits having foreign elements, they were reluctance to entertain them. At this time they showed
their willingness to enforce foreign judgments.

Modern Era:

In the eighteenth century the British Empire had reached the dimensions on which, sun never
sets. The various constituent parts of the empire had different laws. With the ever growing trade,
commerce and intercourse among the peoples of the empire, there was a spate of cases having
foreign element. But, as usual, English courts took time to face the realities squarely.32

29
Calvin;s case- Coke, Sir Edward. "Calvin's Case, or the Case of the Postnati-and Calvins case Wikipedia.-
http://en.wikipedia.org/wiki/Calvin's_Case
30
Supra-31
31
Infra-16
32
Ibid

7
The nineteenth century can justly take the credit for a period in which rules of private
international law start taking shape.33

5. Private International Law in France:-medieval era:-

Statute theory was carried to France in 16thCentury. It was refined and developed there by the
jurists. The famous jurists of this time are Dumoulinand DArgentre. By the end of 16thcentury
with the fall of feudalism and rise of sovereign national state, the conceptof national statute
developed in Europe. Then the territorial nature of law came to bewidely accepted.34

6. Netherlands: Development by Huber in 17th Century:-medieval era:-

Dutch jurists specially, Max Huber refined statute theory. Huber formulated threemaxims of
Private International Law:

The laws of the state have force only within the territorial limits of thesovereignty of the state.

All persons within such territory are bound by the laws of the sovereign.

By reason of comity, every sovereign admits that the consequences of theoperation of a law in
a foreign country shall be recognized by the courts of thecountry unless such consequences will
not prejudice the subjects of the sovereign by whom its recognition is sought the formulations of
Max Huber have been named as theory of acquired rights. 35 And theseformulations have
practical influence on the development of conflict of laws in Englandeven today.

7. The Hague Conference:-

The Hague Conference on Private International Law is an intergovernmental organization in

Hague which is charged with the progressive unification of the rules of private international law.
It was the first international body established in Hague in the year 1893. It is the most leading
intergovernmental organization in the field of private international law. It has drawn up to 38
international treaties or conventions to overcome legal obstacles faced by individuals and
companies in cross-border relations and transactions.36 The great man behind this was tobias
Asser, the only Dutch citizen so far to receive the Nobel Prize (1911).37 Hague Convention has
produced Seven Conventions, in the field of marriage, divorce, marital property relations,
protection of children and Civil procedure. 38

33
Ibid
34
http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law-27th Sep/2013
35
The Indian High Court, 1861.
36
Hague Conference-http://www.dfa.ie/home/index.aspx?id=366- Sep29th/ 2013
37
Ibid-26
38
THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW-Current problems and Perspectives-By
HANS VAN LOON.- http://www.ehu.es/cursosderechointernacionalvitoria/ponencias/pdf/2002/2002_1.pdf-
Sep23rd/2013.

8
First, while Asser was certainly a visionary, he was by no means doctrinaire. He strongly
believed in the need to overcome legal obstacles to the internationalmobility of people and
commerce. But he also recognized the reality of certainlegal differences of traditions and
cultures among different nations. In his view then, unification of private international law
should not aim at creating one uniform world private law. Rather, it should lead to the building
of bridges between different legal cultures in other words, towards unity in diversity.

Second, Asser cared almost as much about the process to reach the results the negotiation
process as about the end product the treaties. Therefore, he paid much attention to the careful,
rigorous preparation of the negotiations, but also to the need to listen, to persuade rather than to
use force, to keep all delegates involved.39

These two characteristics of Asser's approach his aiming at unification while respecting legal
diversity, and his caring for the right proportions of rigour and flexibility in the negotiation
process have remained guiding principles of the work of the Conference for more than a
century now. They are as valid today, I believe, as they were in 1893.

The key to harmony, however, of the first generation of Hague Conventions the principle of
nationality turned out to be a vulnerable one. The idea, as originally formulated by Pasquale
Mancini, was that Italian or Spanish citizens would be followed by their Italian or Spanish law,
wherever they went, as part of their cultural heritage and their personal freedom: their national
law would always determine if and under what conditions they could obtain a divorce, have
custody over their children, etc. However, this cosmopolitan nationality concept could not resist
the upcoming nationalism at the time. It did not take long before States started to denounce the
Hague Conventions of the first generation.40

8. Germany: Development by Von Savigny in the 19th Century:

German Jurist Von Savigny made a definite break from the previous approaches to thesubject
and formulated a new theory of Private International Law. Savigny has rejected both the statute
theory and territorial theory of Private International Law. Savignysformulations can be briefly
stated as follows:

Each legal relation has its natural seat in a particular local law and it is thatlaw which
must be applied when it differs from the law of the court. Thisis the natural law concept
of law predominantly considered to be theconnecting factor of modern Private
International Law.

There are rules of private international law which are universal andcommon to all legal
systems.
39
http://www.ehu.es/cursosderechointernacionalvitoria/ponencias/pdf/2002/2002_1.pdf- Sep29th /2013- by Hans
Van Loon.- P- 25
40
Ibid-p-25

9
The second proposition of Savigny has been subjected to criticism because it is not possible that
Private International Law of different countries entails universalizedcharacteristics. But his
contention on the natural seat of each legal relation made to therules of Private International Law
is more scientific and accurate41.

9. Evolution in India:-

ANCIENT PERIOD:It is difficult to say that private international law existed in ancient India.
It is well-known that much before the advent of the Mughal rule in India, particularly during the
gupta and mauryian empires, India had a flourishing trade and commerce with countries far and
beyond, across the high seas and through the inland routes. It seems evident that many suits
pertaining to contracts and transactions relating to trade, commerce and other matters must have
come before Indian courts. It is also evident that during the Gupta Empire and mauryian empire,
law in India was territorial, though usage and custom too had their place, sometimes
supplementing law, sometimes even over riding it42.

Medieval era:

with the establishment of the Mughal Empire in India on many matters rules of Muslim law
came to be applicable however, in most matters, if both the parties were Hindus, Hindu law
applied and if the both the parties were Muslims then Muslim law applied. In personal matters, in
the entire area of family law, it was personal law of the parties that applied. Hindus were
governed by the Hindu Law and Muslims were governed by Muslim Law. Thus emerged the era
of personal laws in India43.

Modern era (Pre-Independence period):

During the British period, from its very beginning to its end various communities in India were
governed by their personal laws in personal matters. During the British period , India developed
contacts not merely with the countries of British Empire but also with the other countries. The
result was cases with foreign elements did com adjudication before the Indian courts. Just as in
other matters, so in cases having foreign elements, Indian courts decided them mostly by
applying rules propounded in English decisions. Thus, basically the rules of Indian Private
International law are based on the rules of English Private International law. Indian court have
almost blindly, apishly, followed and adhered to English precedents. Probably in a dependent
India nothing else was possible44

41
http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law-oct 7th/2013
42
Infra-32
43
ParasDiwan- private International law- 4th edition- p.g n0-66.
44
Supra-37

10
Warren Hastings regulationof 1772 and Character of 1774: Diversity of Lexfori.45

Modern Indian law begins in Bengal with warren hastings regulation of 1772, where in section
23 for Civil Law to Be applied in the Bengal mofussil prescribed application of Hindu and
Mohammedan laws to Hindus and other religious usages or institutions.46

Thus in 1772, Warren Hastings transformed the principle of personality of laws from its simple
form of separate jurisdictions, as under the character of 1753, into the sophisticated and
complicated system whereby the LexFori rather than jurisdiction was diversified.

Unfortunately, It was not immediately adopted by the British Parliament. The Regulating Act,
1773 and the Charter of 177447 empowered and the newly established Supreme Court at Calcutta
to apply English law if suited to Indian conditions.

In 1781, the Act of 1773 was amended by the Act of Settlement.48This amendment compares
with the warren Hastings regulation of 1772 in that on certain areas of legal relationship, the
Supreme Court of Calcutta had a diversified LexFori. It was required to apply to Hindus and
Muslims their respective laws on matter relating to inheritance, succession, contract and dealing
between party and party.49

In 1781, the Bengal chief Justice Sir Elijah Impey added Succession to the matters of personal
law and these matters were re-enacted in Lord Cornwallis regulations of 1793. This legislation
was adopted in Bombay mofussil in 1799, in Madras mofussil in 1802 and Oudh in 1803.50

In 1861, when the jurisdiction of Supreme Court and mofussil Courts was amalgamated into
original and appellate jurisdictions respectively of the High court which also inherited their

45
Secretary of State vs Administrator General of Bengal, (1868) 1 BLR (OC) 95.-
http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA22&lpg=PA22&dq=Secretary+of+State+vs+Administr
ator+General++of+Bengal,+private+international+law&source=bl&ots=xeVkHlegoj&sig=IsryPgA3qhayNBCZNE
KmCuZO26I&hl=en&sa=X&ei=cBZyUsy1FMjbkgW0Eg&ved=0CCgQ6AEwAA#v=onepage&q=Secretary%20of
%20State%20vs%20Administrator%20General%20%20of%20Bengal%2C%20private%20international%20law&f=
false- 0ct 25th/2013
46
Ibid
47
Infra-14
48
The Indian High Court Act, 1861.-
http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA22&lpg=PA22&dq=Secretary+of+State+vs+Administr
ator+General++of+Bengal,+private+international+law&source=bl&ots=xeVkHlegoj&sig=IsryPgA3qhayNBCZNE
KmCuZO26I&hl=en&sa=X&ei=cBZyUsy1FMjbkgW0Eg&ved=0CCgQ6AEwAA#v=onepage&q=Secretary%20of
%20State%20vs%20Administrator%20General%20%20of%20Bengal%2C%20private%20international%20law&f=
false-oct 8th/2013.
49
Ibid
50
M.TierAkolda, Evolution of Personal Laws in India and Sudan, Journal of Indian Law institute, Vol-26-
http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA21&lpg=PA21&dq=M.Tier+Akolda,+Evolution+of+P
ersonal+Laws+in+India+and+Sudan,+Journal+of+Indian+Law+institute,+Vol-
26&source=bl&ots=xeVkHufcjp&sig=JoFkEBB3A9NnVPFoL6wFHoBirP4&hl=en&sa=X&ei=LHhzUpLXFMaBr
QeC8YHoCw&ved=0CCoQ6AEwAA#v=onepage&q=M.Tier%20Akolda%2C%20Evolution%20of%20Personal%
20Laws%20in%20India%20and%20Sudan%2C%20Journal%20of%20Indian%20Law%20institute%2C%20Vol-
26&f=false- Oct 22nd/ 2013.

11
respective laws, a new twist was added to variation of subject matter. Before 1861, personal
laws and their subject-matter varied from supreme court to mofussil courts. In 1861, however,
the variation could be seen in the original and appellate jurisdiction of High Court.51

10. Genesis of Private International Law in India:

There has been a genesis and evolution both in Civil law countries traceable to Roman Law and
in the common law countries from the 18th century52.

In India, from the commencement of British rule 1772, there has been an evolution of rules to
regulate inter-personal conflict of laws considering the personal of different communities in
India.53

Indian, however has had an older development of Private International Law peculiar to historical,
political and social circumstances.

Before Independence and till the recognition of states, India was a federation between British
India and native Indian Princely States, having distinct legal systems. As a result, conflictual
questions often arose in the area of law and administration of justice particularly the recognition
and enforcement of foreign judgments because at that time a judgment passed in princely state
was foreign to court system of British India which we have now inherited. The best refection
of this is seen in the provisions of section 13 of Civil procedure Code of 1908 dealing with
recognition of foreign judgments. India thus had inter-state Conflict of laws and abundant pre-
independence case law of the Indian high courts deals with it.54

Having attained Independence , the growth of true Indian law on the principle and subordinate
questions of private international law is inevitably hampered.

Conflict of Laws again arose soon after the Independence with the formation of Pakistan , the
abrupt vivisection of common legal system and the resultant effects on the pending litigation and
the rights of Indians divided population. Genesis and evolution of Private International Law in
India has got really taken place. It is rather the narration of how English rules of private
International Law have been applied in Indian conflict cases. The evolution was going in
England. This continued even after Independence.55

51
Supra-48
52
http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law- Oct/5th 2013
53
supra-24
file:///E:/files/Academics/9th%20sem/conflict%20of%20laws/pri%20int%20law/Private%20international%20law%
20in%20India%20%20adequacy%20of%20principles%20in%20comparison%20...%20-
%20F.%20E.%20Noronha%20-%20Google%20Books.htm- Sep 27th/2013
54
Supra-50
55
Ibid

12
 Modern era:

But now after independence it is not at all necessary or logical to ape any country and follow its
rules. Now we are in a position to develop the rules of private international law in accordance
with the social needs and circumstances of our contemporary society and in accordance with the
ideas and notions of world justice.56

11. Theories of Private International Law( Theories and Developments in

contemporary Times):-

Doctrinal matter in Private International Law was virtually monopolized by Civil Law thinkers.
In Civil Code Nations, Private International Law is a part of the Code. Over nearly 200 centuries,
therefore, the development of the Law in this field in Civil Law Nations consisted of new
provisions formulated in civil new codes or their re-formulation in new or revised codes.57

It is only in the recent times that theoretical analysis of common law problems has been taken
over by the common law jurists particularly Americans58.

a) Statutory Theory:

The statute theory is probably the most ancient theory. In its original version, it is a product of
the 13th century Italian theories. It was propounded by Bartoluswho may be called the father of
this theory.Personal law may be applied if it is not opposed to public policy or public order.59

b) International Theory:

There are rules of conflict of laws which are universaland common to various legal systems of
the world. This theory rejected the statute theory as well as the territorial theory.Savigny said,
solution of the problem did not lie in classifying the loss 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.60 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 later which will be applicable . The international treaty
has been criticized on many counts. The most damaging criticism of this theory is the its starts
on the assumption that there is uniformity in the loss of the countries on the characterization of
legal relations, why in fact it is not so. For instance, reach of marriage promise is regarded as
breach of contract in some countries while in some it is regarded as a tort. In such a situation, it
may be difficult to find out the natural seat of the legal relationship. Then, in our contemporary

56
Supra-32
57
Infra- 50
58
Ibid
59
Ibid
60
Supra-44

13
world there are still more than one international systems, of which the important ones are, The
common law system and civil law system.61

c) The Territorial or Acquired Rights Theory:

Territorial and Vested rights Theory was originally formulated by the Dutch jurist Ulrich
Huber(1635-1694) in his book De Conflict Legam. Later it was elaborated by Dicey in
England and by Beale in U.S.62

As expounded in Hollands jurisprudence, this theory is based on the principle of territoriality of

administration of law, that judges can only enforce the law and recognize the judgment of their
own legal system to which they belong or circumscribed by the territory.Courts of sovereign
state donot apply foreign law but merely recognize the consequences of the operationof a foreign
law. This theory tries to reconcile the territoriality of a law andthe need for private international
law. Dr. Cheshire has vehemently criticizedthis theory as being, unnecessary, untrue, and
unhelpful.63

d) Local Law theory:

Local Law Theory is expounded by Walter Wheeler Cook in his book Logical and Legal Basis
of Conflict of Laws 1942. This theory is fully founded on Common Law genius namely that
Law is not deducted from logical reasoning of any philosophers and jurists, any inherent
principle but simply an observationof what judges have done in the past in order to prophecy
how they will probably act in the future.64

This theory is a slight variation from territorial theory.The gist of this theory is that the court
recognizes and enforces a local rightthat is created by its own law. But as the dispute in question
has a foreignelement the court would necessarily apply the rule of the forum that would
beapplied in the case of a purely domestic dispute.65 But for reasons of socialexpedience and
practical convenience it takes into account the laws of aforeign country in which the
decisivefacts have occurred. Cheshire hasobserved that this theory is a sterile truism. Sterile
because it affords no basis for the development of a system of Private International Law.66

61
Supra-32
62
F.Scoles& peter Hay, Conflict of laws, ch-2, p-5-14.-
http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA17&lpg=PA17&dq=Eugene+F.Scoles,+Peter+hey,+Co
nflict+of+laws+P-8.&source=bl&ots=xeVkHudfmp&sig=ZtUYlChl-Qgta7v-
02Pvrd_N83I&hl=en&sa=X&ei=pXFzUqfeHs2TrgeumoGgDA&ved=0CCsQ6AEwAA#v=onepage&q=Eugene%2
0F.Scoles%2C%20Peter%20hey%2C%20Conflict%20of%20laws%20P-8.&f=false- Oct26th/ 2013
63
Supra-32
64
Ibid
65
Supra-32
66
Dicey, Conflict of Laws( 5thedi), p-43, General Pronciple No-V.-
http://books.google.co.in/books?id=KiPfKuph5PAC&pg=PA14&lpg=PA14&dq=C.K+Allen,+The+Law+in+Makin
g,+1997&source=bl&ots=xeVkHucgip&sig=sxCndAPWS1J-t8eCK2KX4cWp-os&hl=en&sa=X&ei=-

14
 e) The Theory of Justice:

The approach of English courts to privateinternational law is pragmatic and ethical. It has
sociological, ethical and legalaspects towards the end of justice. According to Dr. Graveson, the
basis of Public International Law is sociologically, in the international need for fair treatment in
the private transactions of individuals, ethically, in the desire of English courts to do justice;
andlegally,in the obligation of their oath inoffice. In essence the rules of Private International
Law in England are madefrom the precedents with the ultimate view of doing justice.67

f) The American Revolution:-

The major theoretical developments of private international law over the last few decades have
taken place in the U.S.A. Indeed they have been described as a new American revolution.68 A
variety ways of tackling choice of law problems has been put forward in the USA, they tend to
have a similar basic characteristic- and analysis of the issues arising in a particular case with a
concern devicethe appropriate rule for this more narrowly formulated problem as compared with
the far more broadly based conventional choice of law rules. This analysis of issues in individual
cases requires the court to examine the particular substantive rules of law in conflict in the case,
to identify the policies at issue and to resolve any conflict so identified by choice of law rules
appropriate to that narrowly defined conflict.69

12. Conclusion:

In my general Sense, The Conflict of laws (or private international law) is a set of procedural
rules that determines which legal system and which jurisdiction apply to a given dispute. The
rules typically apply when a legal dispute has a "foreign" element such as a contract agreed to by
parties located in different countries, although the "foreign" element also exists in multi-
jurisdictional countries such as the United Kingdom, the United States, Australia and Canada.

The term conflict of laws itself originates from situations where the ultimate outcome of a legal
dispute depended upon which law applied, and the common law courts manner of resolving the
conflict between those laws. In civil law, lawyers and legal scholars refer to conflict of laws as
private international law. Private international law has no real connection with public
international law, and is instead a feature of local law which varies from country to country.The
Hague Conference on Private International Law, though it has a history of well over a century,
has been going through a rapid and profound development in recent years. This reflects the

m1zUsnwBIaJrgeTv4HYCQ&ved=0CDkQ6AEwAw#v=onepage&q=C.K%20Allen%2C%20The%20Law%20in%
20Making%2C%201997&f=false- Oct /27th 2013
67
http://www.academia.edu/1734551/Origin_and_Development_of_Private_International_Law- by S M Masum
Billah15 January 2010..
68
See kegel (1964) II Hague Recueil 95.
69
http://www.cambridge.org/us/academic/subjects/law/private-international-law/confluence-public-and-private-
international-law-justice-pluralism-and-subsidiarity-international-constitutional-ordering-private-law- By Alex
Mills- Confluence of Private International Law.

15
changing character of private international law, which is no longer a discipline regarding the life
and business of the elite, butof everyone. The challenge is to respond to new needs quickly and
adequately,preserving the well-tested working method, adopting them where necessary, andto
maintain the high and highly practical ideals of promoting legal security, theorderly and efficient
settlement of disputes and the rule of law, while respectingthe diversity of legal traditions. In my
general sense, Conflict of Laws has become a veritable playpen for judicial policy makers. The
courtsare saddled with a cumbersome and unwieldy body of conflict laws that createsconfusion,
uncertainty and inconsistency as well as complication of the judicial task. Theapproach has been
like that of a misguided guided judge, who treated a case, not having proper knowledge about
private international laws, will definitely be big loss to the advocate and the party in obtaining
justice but not to the Judge.

16
17