Conflict of Laws

Conflict of Laws is a field of law which is not very widely known to the ordinary law practitioner. It has to be considered only if a particular litigation has a foreign element as, for example, when the contract in issue was entered into in another country or was to be performed in another country. This is only one example, and there are numerous other situations where the principles of conflict of laws may have to be applied: if parties were married abroad; if the deceased was domiciled abroad; if the company was incorporated abroad, etc. Resort to the rules of conflict of laws may be necessary in the most diverse situations. This branch of law is likely to be of growing importance in India as there is increasing international trade, more cross-border investment and, as increasingly, more Indians live and settle outside India. This book covers the subject extensively. It considers international conventions in the field, the law in England, the law in some Common Law countries and the law in India. Apart from some provisions in the Code of Civil Procedure relating to the enforcement and execution of foreign judgments, and the laws relating to foreign awards, there are few Indian decisions on the subject. It is, therefore, absolutely necessary to consider the rules of law developed in England and other Common Law countries as well as the international conventions laying down conflict of laws rules in several fields. Such conventions offer guidance to our courts as they lay down what our Supreme Court has called ‘transnational’ rules of law. There is a detailed synopsis at the beginning of each chapter setting out its contents in detail: this should be useful to the busy practitioner. The book should find its place in the library of any lawyer practising Civil Law in India.

Preface to the Third Edition

v Preface to the Second Edition

vii Preface to the First Edition

viii Table of Cases

1. Nature and Scope of Conflict of Laws

2. Meaning of Conflict of Laws

3. Basis of Conflict of Laws

4. Name of the Subject

5 Issues that Arise in the Conflict of Laws

6 Need for Rules of Conflict of Laws

7 Sources of Rules of Conflict of Laws

9 Commonly Used Phrases and Words

10. Characterisation, the Incidental Question, and the Time Factor

11 Meaning of Characterisation

12 Process of Characterisation

13 Position in English Law

14 Exceptional English Cases

15 The Normal English Rule

16 Characterisation of Issue

17 A More Recent English Approach

18 Position in Some Common Law Countries

19 Suggested Approach To Characterisation

20 The Incidental Question

21 The Time Factor: Retrospective Alteration of Laws

22 Alteration in the Rules of Conflict of Laws

23 Relevant Time When Applying the Connecting Factor

24 Changes in the Lex Causae: General

25 Changes in the Lex Causae: Suggested Solution

26. Renvoi

27. The Problem

28. Possible Solutions

29. Position in England

30. Position in Some Common Law Countries

31. Position in European Union

32. Renvoi: Suggested Solution