“PRIVATE
INTERNATIONAL LAW”
By:
FAHAD KHAN SARWAR
Civil
Judge,
The private international law is a universally recognized principle and it comes into play where foreign element is involved whether they are individuals, legal personality, corporation etc. In the comity of Nations the Public International Law deals with regard to disputes and relations among States while the Private International Law deals with individuals, legal personalities, corporation etc. The object of writing on this subject is to create awareness regarding the private international law specially among people relating to field of law. If a Court is faced with a case where some foreign element is involved, what course it has to adopt to address the fundamental question of jurisdiction.
In private international law there is further distinction between personal matters and commercial or business matters. In personal matters like family matters the domicile is the determining factor while in commercial or business matters the Nationality determine the jurisdiction, under the concept of global village always efforts were made to bring people of the world in uniform system of law to avoid conflicts and contradictions. To achieve this purpose uniform principles were tried to be settled, domicile and nationality were also result of such efforts, however diversity and difference of opinion still exist varying from case to case and country to country.
[1]It has been universally recognized that question effecting the personal status of a human being should be governed constantly by one and the same law, irrespective of where he may happen to be or of where the facts giving rise to the question may have occurred but unanimity goes no further. There is disagreement on two matters.
First. What is the scope of this “Personal Law” as it is
called and should its criterion be domicile or nationality. In
When it comes to a definition of domicile, this is no easy matter. The concept of domicile is not uniform throughout the world. To a Civil lawyer it means habitual residence, but at Common Law it is regarded as the equalent of a person's permanent home. Such a definition gives a misleading air of simplicity to the English concept of domicile. It fails to mention for example, there are two main classes of domicile; the domicile of origin that is communicated by operation of law to each person at birth i.e. the domicile of his father or his mother, according as he is legitimate or illegitimate, and the domicile of choice which every person of full age is free to acquire in substitution for that which he at present possesses.
The General Rules governing the domicile further clarify the concept of domicile. It is a settled principle that nobody shall be without a domicile, and in order to make this effective the law assigns what is called a domicile of origin to every person at his birth, namely, to a legitimate child the domicile of the father to an illegitimate child the domicile of the mother and to a foundling the place where he is found. This prevails until a new domicile has been acquired, so that if a person leaves the country of his origin with an undoubted intention of never returning to it again, nevertheless his domicile of origin adhere to him until he actually settles with the requisite intention in some other country.
Second. A person cannot have two domiciles. Since the object of the law in insisting that no person shall be without a domicile is to establish a definite legal system by which certain of his rights and obligations may be governed, and since the facts and events of his life frequently impinge upon several countries, it is necessary on practical grounds to hold that he cannot possess more than one domicile at the same time, at least for the same purpose.
The domicile of origin is as simple as discussed above, whereas for the acquisition of a domicile of choice there are some conditions i.e. residence, the intention to stay in certain territory which are to be met.
Residence and intention are separate but interrelated concepts. Residence in a country for the purpose of law of domicile is physical presence in that country as an inhabitant of it[2]. In one case[3] a taxpayer who spent ten to twelve weeks each year in Quebec for the purpose of maintaining her link with that province with a view ultimately to returning to live was held not to be a resident of Quebec during her presence there since she was not there as an inhabitant. Normally though the requirement of residence is easy to establish.
Residence and intention are interrelated in that strictly speaking, residence is a fact, though a necessary one, from which intention may be inferred. Older cases adopted a presumption in favour of domicile which grew in strength with the length of the residence and was hard to rebut. However, more recent cases including house of lords authorities, have attached less weight to the length of residence and have taken the view that, although a material consideration, it is rarely decisive.
Whatever, weight is given to the
length of residence it is undesirable that time is not the safe criterion of
domicile. Long residence does not constitute nor does brief residence negative
domicile. Everything depends on the attendant circumstances, for they alone disclose
the nature of the person's presence in a country. In short the residence must
answer “a qualitative as well as quantitative test.” Thus in Jopp Vs Wood[4]
it was held that a residence of twenty five years in India did not suffice to
give a certain John Smith an Indian domicile because of his alleged intention
ultimately to return to Scotland, the land of his birth. Again, in IRC Vs Bullock[5]
a Canadian who had a domicile of origin in
Conversely, brevity of residence is no obstacle to the acquisition
of a domicile if the necessary intention exists. If a man clearly intends to
live in another country, permanently, as for example, where an emigrant, having
wound up his affairs in the country of his origin, flies off with his wife and
family to
A striking example of this truth occurred in
It is possible for a person to be
resident in several countries at the same time. In such a case of dual or
multiple residence a domicile of choice can only be acquired in a country if
this can be shown to be the chief residence. This was established in Plummer V IRC[8].
The taxpayer had an English domicile of origin. She spent the majority of each
year in
HOFFMAN J held that, despite the
taxpayer's retention of residence in
The requisite of intention are determined from nature of the intention. It is well settled that to acquire a domicile the intention must be permanent or indefinite. The word permanent as per dictionary meaning is the opposite of temporary. It also mean lasting or designed to last indefinitely. In Undy V Undy[10] for instance Lord Wetsbury described the intention as being one to reside for an unlimited time.
The essence, therefore, of these and many other similar statements is that the intended residence must not be for a limited period, whether the limitation is expressed in terms of time or made dependant on the occurrence of a contingency, such as the accomplishment of a definite task that will occur if at all during the life of the propositus.
All over the world there is no uniform policy regarding following the domicile or nationality for jurisdiction purpose.
Nationality is a possible alternative to domicile as the criterion of the personal law. These are two different conceptions. Nationality represents a person's political status, by virtue of which he owes allegiance to some particular country; domicile indicates his civil status and it provides the law by which his personal rights and obligations are determined.[11] Nationality depends, apart from naturalization, on the place of birth or on parentage; domicile, as we have seen, is constituted by the place of birth or on parentage; domicile, as we have seen, is constituted by residence in a particular country with the intention of residing there permanently. It follows that a person may be a national of one country but domiciled in another.
If one looks at the historical development, it will appear
that, over the last two centuries, the ascertainment of the personal law, which
ought to be governed by legal and practical considerations, has in fact been
influenced by varying political and economic factors. The French revolution,
the struggles of Italy to win independence, the wave of nationalism that swept
Europe in the nineteenth century, the desire of the poorer countries to share
in the prosperity of their emigrants—these and other similar circumstances have
led to a widespread idolatry of the principle of nationality. At present many
countries in Europe and South America adopt nationality as the criterion of
personal law, whilst the common law jurisdictions of the Commonwealth and the
Nationality, as compared with domicile, enjoys the advantages that it is relatively easy to understand as a concept and normally it is easily ascertainable[13]. Nevertheless, it is objectionable as a criterion of the personal law on at least three grounds[14].
First, it may point to a country with which the person in
question has lost all connection, or with which perhaps he has never been
connected. It is a strange notion, for instance, that a Neapolitan, who has
emigrated to
This is the case, as we have seen,
when one political unit such as the
Perhaps a fair conclusion, speaking very generally, is to say that, as determinants of the personal law, nationality yields a predictable but frequently an inappropriate law; domicile yields an appropriate but frequently an unpredictable law.
This division of the world into those countries that adopt the principle of nationality and those that prefer the test of domicile is unfortunate, since it obstructs the movement for the unification of rules of private international law; the reconciliation of the opposing views is highly desirable. Moreover, whilst there has been a tendency on the Continent to substitute domicile for nationality as the rest of personal law, there has been a natural reluctance to absorb the English principles into toto[17]. This has led to international efforts to
reach agreement on the meaning of both domicile and also residence as connecting factors.[18]
In short the basic test in determining jurisdiction of a Court in personal matters of a foreign individual is the domicile, while in business matters it is the nationality.
[1].
[2]. IRC
v Duchess of Portland [1982] Ch 314 at 318-319.see, eg, ln re S(Hospital
Patient Foreign Curator [l996] Fam 23 at 31.
[3]. IRC
v Duchess of
[4]. [1865] 4 De GJ & Sm 616; and A-G V
Yule p [1931] 145 LT9.
[5]. [1976]3 All ER 353, [1976]1 WLR 1178.
[6]. Hadgson
Vs De Beauchesne [1858] 12 Moo Pec 285 at, 330, Bell Vs Kennedy [1868] LR 1 Sc & Div 307 at 319; PL Vs An t Ard Chlaraitherir [1995]2 il
rm 241.
[7]. White
V Tennant 31
[8]. 350, Smart [1990] 10 OJLS 572. However,
dual residence can lead to dual domicile for the purpose of the civil
jurisdiction and judgments Act, 1982, Daniel
V foster 1989 SLT 90.
[9]. But see Fentiman [1991] CJL 445 who
argues that the case is evidence of a shift in the law away from intention and
towards factual connection.
[10]. This was one of the proposals of Law
commission, set out in Law case No. 168 [1987] Scot Law Com No. 107 [1987]
[11]. Udny
v Udny (1869) LR 1 Sc & Div 441 at 457
[12]. Palsson (1986) IV Hague Recueil 316, 332
et seq.
[13]. See generally Law Com No. 168 (1987), Scot
Law Com No. 107 (1987),
[14]. North, private international law of
matrimonial causes, pp 9-10. See also law com No. 168 (1987), scot law com No.
107 (1987), paras 3. 10-3.11
[15]. Eg Torok v Torok [1973] 3 All ER 101,
[1973] 1 WLR 1066
[16]. [1940] Ch 124, [1940] 1 All ER 216,
discussed Supra, pp 59-60, and Re Johnson [1903] 1 Ch 821.
[17]. Floke Schmidt (1951) 4 ILQ, pp 39-52;
[18]. Eg Council of