Recognition and Enforcement of Foreign Judgement under Private International Law
April 14, 2022 • Nikita Saha
AUTHOR'S PROFILE: Aaryan Wadhawan, 2nd Year, School of Law, UPS.
Globalization is at its all-time peak. When the exchange of goods, services, and ideas between countries has increased, there lies a need for Private International Laws. To implement Private International Laws, there must be a foreign element involved. For instance, a dispute between two companies of different countries exchanging goods, services, ideas, etc. Private International Law is also known as the Conflict of Laws as companies are from different countries which practice their own set of laws. During such situations, the court assigned the case shall consider the principles of Private international laws and domestic laws.
PRIVATE INTERNATIONAL LAWS AND THEIR FUNCTIONS
Private International laws are mutually accepted and respected by the citizens of various nations who have entered into a legal relationship that decides the set of rules that will be applied during a dispute. Private International Laws are different from Public International Laws. The latter is the set of rules mutually accepted and respected by the governments of different countries that helps them to determine their rights in times of a dispute.
Private International Laws help the people of a country in ways which are mentioned below:-
- These laws regulate the laws to be applied during a dispute between two private entities of different nationalities. As mentioned above, there must be a presence of some foreign element.
- It decides the jurisdiction of the courts. The laws help us decide which court is best suited to settle a dispute.
TRADITIONAL RULES OF PRIVATE INTERNATIONAL LAW
The courts of the different countries have a Choice of Law, and in order to issue a choice, they have to go through a process that includes two stages.
During the first stage, the courts refer to the forum's law, also known as Lex Fiorito, for all the procedural matters.
Secondly, the courts are supposed to find the link between the legal problem and the most suited rules of the state—the laws of a state which have the most incredible connection. the various traditional laws which are applied in Private International Laws are …..
- Lex Loci Deliciti means the nation where the legal problem arose shall get the jurisdiction of trying that case.
- Lex Situs- this term talks about the issues related to the transfer of movable property. Lex Situs helps in the transfer of immovable property too.
- Lex Domicile-it talks about the validity of a marriage between two individuals. Lex Domicile is known as the 'Law of Domicile.'
- Lex Fori is the law of forum that extends help during the governance of the law of procedure.
- Lex Loci Celebrations means "the law of the place where the marriage takes place." This rule also governs the validity of a marriage.
DOCTRINE OF COMITY
The inception of Private International Laws necessitates internationally respected and mutually accepted laws compatible with various countries. The doctrine of Comity calls attention to the understanding between many countries. These are the rules welcomed by different nations that provide ease during the settlement of disputes. Section 11 of the Foreign Marriages Act of 1969 stands as an excellent example of the Doctrine of Comity. This act provides for the diplomatic Officers of India. The consular officers have been given permission to marry another person in a foreign country, provided that one of the persons should be a citizen of India. The act also states that no such kind of marriage should occur, prohibited in a foreign land. Marriages under this act are compatible internationally.
ENFORCEMENT OF FOREIGN JUDGEMENTS
Section 13 of the CPC, 1980, recognizes the Foreign Judgments in India. The section has been mentioned below.
“13. When Foreign Judgement not conclusive– A foreign judgment shall not be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim to litigate under the same title except –
(a) where a Court of competent jurisdiction has not pronounced it;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of the international law or a refusal to recognize the law of India in cases in which such law is applicable;
(d) where the proceedings in which the judgment is obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India."
In India, The Supreme Court has supported the field of Private International Laws and has also passed various landmark judgments, including the recognition and enforcement of foreign judgments. One of them is Alcon Electronics Private Limited Vs. Celem SA and Others, 2017. In this judgment, the Supreme Court accepted the English Court's judgment. The Supreme Court observed that "the principles of Comity of the nation demands adherence to English court. Indian Courts have to give due weight to such orders even regarding an interlocutor order unless it falls under any exception under section 13 of CPC. Hence, the Supreme Court went forward with the execution of the order passed by the English Court and concluded that it is a concrete decision that has to be abided by. They also said that England is a territory that falls under section 44A. The Supreme Court considered the judgment of the English Court in International Woollen Mills vs. Standard Wool (UK) Ltd.