Private International Law

This chapter discusses some salient features of the private international law framework applicable in Britain and compares it with that of the European civil law countries where different assumptions apply. It then provides a brief overview of the South Asian comparative backdrop against which some questions which come up in British and other European legal systems can be set, including the basic feature of personal laws which is the norm in South Asia but exceptional for Europe. It discusses the how South Asians in Europe have formed communities that result from immigration over several decades, including how that has conditioned the types of private international law questions raised and how recent developments associated with Muslims question previously favoured models of multiculturalism. Lastly, there is a focus on how the development of unofficial sharia fora in the UK, within a larger comparative context, is complicating and potentially undermining the existing model of private international law.

The choice-of-law rules applied by arbitral tribunals differ in several respects from the approaches followed by domestic courts. Those differences arise in connection with three distinct choice-of-law problems: (i) the determination of the law applicable absent a choice of law by the parties, (ii) the interpretation and supplementation of the law chosen by the parties, and (iii) the application of mandatory norms. As far as item (i) is concerned, arbitration-specific choice-of-law rules typically grant arbitrators more freedom than ordinary conflict-of-laws norms. In relation to international sale of goods transactions, for example, Article 4(1)(b) of the Rome I Regulation on the law applicable to contractual obligations provides for the application of the law of the country where the seller has his habitual residence (unless the contract is more closely connected with another country), while Article 28(2) of the UNCITRAL Model Law on International Commercial Arbitration allows arbitrators to determine the applicable law on the basis of the conflict rule of their choosing. Under the arbitration laws of several countries, arbitrators are even entitled to apply non-national law such as general principles of law, the UNIDROIT Principles of International Commercial Contracts, or principles common to the parties’ legal systems. With regard to item (ii), arbitral tribunals may similarly resort to non-national legal sources when interpreting, or filling the gaps of, the applicable domestic law. This was expressly contemplated by the drafters of the aforementioned UNIDROIT Principles according to whom the Principles “may be used to interpret or supplement domestic law” (see Preamble). As to item (iii), the conflict rules of codifications such as the Rome I Regulation lay down specific rules regarding the application of the mandatory norms of both the forum and other relevant jurisdictions. The former cannot be transposed to international arbitration due to the absence of a “forum” of international arbitral tribunals. The latter, while not directly applicable, may be taken into account by arbitral tribunals. However, it is more likely that arbitral tribunals will view the question of the application of specific mandatory norms from the angle of possible enforcement problems that may result from the non-application of those norms.

The Hague Convention on the Choice of Court Agreements (‘Convention’) drafted under the auspice of the Hague Conference on Private International Law was concluded on 30 June 2005. It was ratified by Mexico on 26 September 2007. With the ratification by the European Union on 11 June 2015, the Convention has come into force on 1 October 2016. Therefore, the question is whether other countries should follow the European Union’s footsteps in ratifying and giving effect to this Convention. This chapter will consider the said question.

Afghanistan as a civil law based country has a codified set of Private International Law rules related to concerns arising from personal status, property, martial disputes and the law related to commercial disputes. This chapter showcases and analyses the n legal system, the provisions of the Afghan Civil Code, Afghan Commercial Code and other related laws that address the conflict of laws scenario in disputes related to matrimonial relief, movable and immovable property and the applicable law on commercial disputes. The chapter attempts to discuss the unique features of the private international law in Afghanistan.

About 40 Million Bangladeshi citizens live in foreign countries; many of whom were married in Bangladesh under Bangladeshi laws and when they decide to divorce they face a dilemma in choosing the legal regime for their divorce procedure. This chapter focuses on divorce procedures for Bangladeshi citizens married under the laws of Bangladesh who are now living abroad. The current domicile or citizenship of these people are varied as they have either become foreign national or have attained dual citizen or still holding Bangladeshi citizenship. The chapter describes the available divorce procedure for them and the procedure to resolve related matters in Muslim marriage, child custody, child support, distribution of marital property etc. The primary legislation of divorce registration in Bangladesh; The Muslim Family Laws Ordinance 1961 is to a large extent silent regarding cross border divorce procedures. However the simple procedure for Muslim Divorce in Bangladesh attracts the concerned population to choose Bangladeshi regime. The acceptability of divorce under Bangladeshi laws in the countries like USA, UK, Australia, Canada and EU countries have also been discussed as well as Bangladesh’s association with Hague Conference on Private International Law in family matters convention. The author of the chapter from his experience in representing the non-resident Bangladeshi clients shares the practical legal obstacles and ambiguities.

The framework of Private International Law is based on the premise of choice of law in matters that are considered private or personal. Private persons may determine the law that applies to them and may seek remedies in forums that are available for the law chosen. The right to agency, consent and contract which are fundamental to private law are also libertarian values intrinsic to public law. The critique of private law from a feminist perspective has focused on the need to mainstream gender concerns into public and private law. Gender mainstreaming has led to an increased concern for gender issues as part of public policy. One of the controversies in the private law domain has been with regard to adding the ground of irretrievable breakdown of marriage in Indian Law. Thus while an irretrievable breakdown of marriage is a valid ground for divorce in many jurisdictions it is not a ground under Indian law although there have been judgments which have suggested that this might be added as a ground by the legislature. The Indian Judiciary has been reluctant to recognise a foreign court’s judgment and has held women who do not want to submit to the jurisdiction of foreign courts may invoke that domestic jurisdiction. In this context Indian law is clearly not in tune with many other jurisdictions. This paper will examine the position of Indian courts with regard to the matrimonial relief of divorce by examining public policy considerations that Indian courts have used.

Private international law is a relatively less developed domain in Nepal. There is no specific legislation governing private international law. Over the past few years, however, the judiciary of Nepal has witnessed a number of cases regarding recognition of foreign judgments, exclusively concerning matrimonial issues. In this backdrop, this chapter discusses the situation of recognition of foreign judgments vis-à-vis matrimonial cases in Nepal. Beginning with an overview on the historical development of private international law in Nepal, the chapter proceeds on to discuss existing legislations governing issues involving foreign elements and judicial decisions on the recognition of foreign marriages and divorces in Nepal. The chapter then makes a descriptive narration of the draft law on private international law and an analysis of the provisions related to matrimonial matters in the draft. An attempt to provide recommendation on improvising the draft law vis-à-vis matrimonial issues has also been made.

The increased number of Non Resident Sri Lankans and international marriages have given rise to a host of cross-border legal problems. The current chapter discuses one of the contentious areas of Sri Lankan family law dealing with cross-border divorce. The chapter elaborates the Sri Lankan legal system to understand the different personal law applicable to questions of marriage. The paper will focus on the statutory and the judicial approach developed towards the recognition of cross border divorce under Sri Lankan legal system. The chapter will also look at the three important strands of Private International Law in the form of Jurisdiction, choice of law and enforcement of foreign judgment. The chapter will also focus on Sri Lanka’s association with Hague Conference on Private International Law in the sphere of matrimonial matters.

Cross-Border surrogacy helps couples, with difficulties of child conception, avail of a medical alternative. The National Commission for Women, India has highlighted the increasing availability of medical services for surrogacy and India’s emergence as a surrogacy market, almost to an unofficial value of US$1 billion. Contemporary legal position on surrogacy, across the world, is diverse. Such diversity presents much challenge to private international law dealing with issues of determination of legal parentage and nationality for the child born. The Hague Conference on Private International Law has been, since 2011, working towards developing legal resources involved in exploring a solution to the issue. This chapter attempts to present the legal structure in India, minimal though it is, affecting cross-border surrogacy arrangements. It also contextualizes the discussion on the cases where children born to foreign citizens through surrogacy were left to face legal battle to determine nationality and parentage.

As the world shrinks and people travel all over the world to work and live so do they establish families and roots where they go. International marriages are becoming increasingly common as immigration and vast diasporas’ becomes a reality of the world. As a result, the development of a body of private international family law has been crucial to resolving the inevitable issues that arise. A significant issue is that of child custody where parents may not only be of different nationalities but also may simply live or be present in different countries for what become crucial periods of time. Before, the issue of custody and best interest of the child can even be addressed the first matter of inquiry is which country can rightfully adjudicate the custody matter. To avoid, competing jurisdictions and purposeful wrongful removal of children by a parent attempting to divest the other parent of any custody rights, the Hague Convention on the Civil Aspects of International Child Abduction serves as the comprehensive body of law that first establishes which country has the right to adjudicate custody which is crucial as stated above, to avoid, multiple jurisdictional fights, and entanglement of politics on what become emotional issues of nationhood, cultural standards for children and issues surrounding parental kidnapping. There has been a strong push by practitioners for India to sign the Convention. To be a part of the global community, the case is made, that India must be seen as a place where standard international Conventions especially as they relate to child custody will be honoured. In fact the Indian Law Commission in 2009 completed its report authored in part by Justice Lakshmanan, concluded that India must accede to the Convention and sign it rather than become a haven for parental kidnapping. This is however controversial for a number of reasons where realities of spousal abuse, fraudulent marriages and lack of ability to litigate are cited. Further, so far, the judiciary in India has been extremely quick to adjudicate custody disputes even when the child has not resided in India for any substantial period or arguably has been “wrongfully removed” per standards of the Convention. The chapter will explore the case law generated specifically in the Indian case law and also changes in it, while at the same time explore what reasons Court’s have applied to resolve these issues.

The number of international child abduction in the territory of Pakistan has increased in the wake of a growing trend of cross-cultural marriages. However legal aspects of International child abduction has not received much attention and awareness from the government of Pakistan and relevant authorities. The international community through Hague Convention mechanism lays down procedure to bring back the abducted child to his/her place of habitual residence and attempt to prevent parental child abduction. Hague convention is a multilateral treaty, which addresses parental abduction by facilitating co-operation between central authorities of the signatory countries to expedite the return of the child to the country of their habitual residence. Pakistan is not a party to Hague Convention but cross border families disputes particularly child abduction has been treated with immense importance by the judiciary of Pakistan on the basis of the welfare of child as a guiding principle of family law in custody matters.

Despite being a signatory to some key Hague Conventions on private international law related aspects, Sri Lanka is skeptical as far as the private international law is concerned. A first glance at the situation gives the definite imprint of legal uncertainty, caused by diverse reasons ranging from religious to political. Judicial determinations oscillate between tradition and novelty based on positivism and modernism affecting various aspects of human life. Amidst this background, the chapter attempts to analyze the legal statement affecting the lives and rights of citizens who choose to make bonds beyond horizons, and the approaches adopted to resolving the legal issues arising from and related to such bonds, specifically in respect of inter-country child abduction. In the context of the broad objectives of the Civil Aspects of International Child Abduction Act of 2001, which Sri Lanka enacted in honoring its international obligations and to give effect to the Hague Convention on the Civil Aspects of International Child Abduction of 1980, the chapter analyses the Sri Lankan pre-legislation and post-legislation legal position in respect of parental obligations, duties and responsibilities of the Central Authority, and procedural aspects including jurisdiction. A selection of Sri Lankan judgments are analyzed to examine judicial conceptualization of inter-country child abductions in the context of its international obligations and local law, and the relevance and applicability of foreign judgments in local courts. The impact of the 2001 legislation is assessed on its own provisions as well as compared to the Reciprocal Enforcement of Judgments Ordinance of 1921 and of 1935.

During a negotiation for a transaction between individuals/businesses of two different nations, selection of proper law and forum for settlement of disputes arising out of the transaction is not an easy task to accomplish. Further, it always haunts the legal practitioners when they are asked to bring a proceeding in a local court against a foreign party. The haunting aspect is that the court of foreign jurisdiction, where the judgment may be enforced against the foreign defendant, may refuse to recognize the judgment. The legal principles are not so solidified in this area of law. This study of conflict of laws tends to explain the unsettled aspect of it in the context of the State of Bangladesh. Bangladesh (formerly East Pakistan, prior to its independence) has been experiencing the dilemma of conflict of laws. A number of statutes address the issue of choice of forum, proper law and enforcement of foreign judgment. Disputes have generated several legal decisions focusing on these issues. Still the jurisprudence is not settled with regard to the interpretation of foreign jurisdiction and proper law clauses in a contract. A formidable challenge is thrown by the rules on civil procedure of Bangladesh. The law requires that a foreign judgment, to be enforced in Bangladesh, ought to be issued by a legal system the subject law of which is not in conflict with the laws of Bangladesh. This single criterion may allow the courts of Bangladesh not to recognize the judgments of many foreign courts regarding matrimonial, adoption, corporate, property disputes etc. This study attempts to revisit the present jurisprudence of Bangladesh in respect of foreign jurisdiction and proper law clauses in a contract and the enforcement of foreign judgment in Bangladesh, especially in the light of this clause in the Civil Procedure law of Bangladesh.

In the era of globalization in the field of international trade and commerce, international commercial arbitration has emerged as the prominent dispute settlement mechanism. It has successfully helped business traverse dispute resolution through avoiding the complexities in traditional cross-border commercial dispute litigation system. Parties have greater autonomy and control over dispute resolution process in terms of choice of law, lex arbitri and seat of arbitration among others. The New York Convention on enforcement of foreign arbitral awards has contributed significantly to international arbitration by ensuring that signatory countries would recognize and enforce arbitral awards given in the Convention countries. The UNCITRAL Model Law further offered guidance for States to help harmonize their laws related to international arbitration. Bangladesh’s arbitration law premised upon the NYC and the UNCITRAL ML embodies inter-alia the provisions of choice of law, party autonomy, the scope of applicability of lex arbitri, lex mercatoria and enforceability of foreign arbitral award in Bangladesh. Another notable development is the courts’ role has been capped to a minimal level. This chapter discusses the features of Bangladesh arbitration law related to international arbitration and suggests a few areas that require a statutory revisit.

In this age, no one lives in an island. All are connected across the globe. This world is greatly premised on the free flow of trade, investment, knowledge, information and technology. Arbitration has been an important tool to expedite the process of international trade and investment by providing a speedy and, in some cases, a cost friendly method for dispute settlement. Arbitration has been successful in batting cross border jurisdictional and legal issues. However, the law and practice in some countries have shown that arbitration is again tied to the general mechanism of civil justice. This procedural intricacy makes arbitration a victim of delay, one of the evils of civil justice today. Recently, the World Bank has declared Bangladesh as a middle income country recognizing its sustained growth and resilient economy. In the context of current wave of economic transformation, international commercial arbitration has become a more relevant issue for Bangladesh. To progress and meet the demands of the international community, the Arbitration Act 2001 (the AA 2001) had been enacted in 2001 in line with the UNCITRAL Model Law on the International Commercial Arbitration. This includes provisions relating to the recognition and enforcement of foreign arbitral awards. This chapter shall focus on the provisions of AA 2001 in respect of the enforcement of foreign arbitral awards in Bangladesh, the requirements to be addressed for enforcement and the challenges the parties may face in enforcement of foreign arbitral awards in Bangladesh. The Author analyzes the provisions of AA 2001 regarding enforcement of foreign arbitral awards and identifies some definitional, jurisdictional, territorial and interpretational challenges that the AA 2001 may face.

International arbitration, characterized by increasing regulatory activity and escalating institutionalization of the mechanism across jurisdictions, presents an interesting yet complex structure. Flexibility within the process, primacy to the party autonomy principle and enforcement across jurisdictions are the factors that explain its increased utility. Nevertheless while most arbitration laws drew inspiration from the UNCITRAL Model Law, there have been marked shift from the guidance given in that document, within the national laws. This chapter aims to present the Indian law on international commercial arbitration, discussing the issues related to jurisdiction, choice of law and the enforcement of foreign arbitral awards and the role of the courts at the enforcement forum in deciding upon challenges to such enforcement.

Arbitration, an accepted dispute resolution mechanism in Nepal, has been receiving increased interest in recent times, especially since the enactment of the new legislation on arbitration in 1999, attempting to harmonize the Nepalese law with the UNCITRAL Model Law as well as bring it on similarity with the other arbitration laws in the South Asian region. The Public Procurement Act and Regulations 2007 mandated ADR methods for dispute resolution in construction contracts. Interestingly, the legislation attempted to provide a structured methodology for the conduct of arbitration, and also specified timelines for the conduct and the completion of arbitration, a unique feature, especially because delayed arbitration has been a problem with many arbitral regimes within the region. This chapter attempts to showcase the Nepal Arbitration Act, 1999 and explain the jurisprudence developed in Nepal, especially related to the conduct of the arbitration and the enforcement of foreign arbitral awards.

Pakistan enacted the Act of 2011 to implement the New York Convention, 1958. Section 2 of the Act, 2011 defines that foreign arbitral award is that award which is made in any of the New York Convention Contracting Sates or in such other States as may be notified by the Federal Government of Pakistan. This definition or determination of the scope of foreign arbitral award is, in fact, adaptation of principle of reciprocity provided for in the New York Convention. The New York Convention gives option to States that it can reserve application of the Convention to only those awards, which are made in the territory of another Contracting States. Pakistan availed this option and Section 2 of the Act, 2011 is not a definition of foreign arbitral award but the manifestation of that option. Admittedly, it is left with the law of the State where recognition of the award is sought to determine what constitutes an award enforceable under the New York Convention. There is no uniform approach amongst different countries on the definition of foreign arbitral award. Further, the New York Convention stipulates it application on the awards, which are non-domestic, and again there are divergent approaches on this terminology (non-domestic) as well. The chapter critically looks at the issue of enforcement of International Commercial Arbitration in Pakistan.

It is proposed to consider in this chapter in some detail, issues relating to jurisdiction, choice of law, and the enforcement in Sri Lanka of foreign arbitral awards. It is noteworthy that the Arbitration Act No. 11 of 1995, which is currently in force in Sri Lanka, applies uniformly to the conduct of purely domestic arbitration proceedings as well as to arbitration proceedings conducted in Sri Lanka involving one or more foreign parties and to the enforcement of foreign arbitral awards. Decisions of the courts in Sri Lanka have emphasized the consensual nature of arbitration and adopted a policy of minimum judicial intervention into arbitration proceedings. The courts also have been supportive of arbitration and endeavoured to assist and safeguard the arbitral process. The chapter will examine the provisions of the Arbitration Act that attempt to deal with certain issues involving conflicts of jurisdiction and the doctrine of Kompetenz-kompetez which seeks to empower the arbitral tribunal to rule on its own jurisdiction. In particular, an effort will be made to examine in some detail, questions involving jurisdiction that arise in the context of section 5 of the Arbitration Act, in comparison with the law and practice that exist in other South Asian jurisdictions. The choice of applicable law has always been a problem that has confounded arbitral tribunals when dealing with cases that have cross-border connections and connotations, and it is noteworthy that the Sri Lankan Arbitration Act recognizes the concept of party autonomy in regard to choice of law. An attempt will be made in the chapter to show how Sri Lankan arbitral tribunals and courts have dealt with issues arising from competing norms of national law as well as foreign law. Prior to the enactment of the Arbitration Act in 1995, there were many issues pertaining to the enforcement of foreign arbitral awards. While the Arbitration Act has resolved most procedural issues regarding enforcement of foreign awards, there remain many grey areas, particularly in regard to the concepts of arbitrability and public policy, and the interpretation of the enforcement provisions of the Sri Lankan Act, which seek to give effect to the international obligations that arise from Sri Lanka’s ratification of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards without any reservations. Recent decisions of the Supreme Court of Sri Lanka have dealt with some of these issues, which will be examined, in detail in this chapter. An attempt will be made in the chapter to explain how Sri Lankan arbitral tribunals and courts have dealt with issues arising from competing norms of national law as well as foreign law.

International contracts include matters related to intellectual property and require private enforcement i.e. legal measures taken by private parties. Such legal measures are based on the territoriality principle and determined by the law of the country where the suit is instituted. A vibrant private international law, which recognizes the expressive and constitutive capacity of judicial decision-making, can make contributions to the system well beyond the resolution of private disputes. In the traditional system governing issues related to intellectual property, national courts have had very little role to play in the construction of international intellectual property law. Litigation involved only national rights as explained within the municipal law on intellectual property rights; courts were reluctant even to adjudicate claims involving foreign intellectual property rights, leading to serial national litigation of multinational disputes, often on the basis of the similar right, guaranteed according to the municipal law system prevailing in that forum. However, it did cause national courts to take cognizance of matters having cross-border implications leading to the entry of private international law into the rubric of intellectual property rights. This chapter attempts to present the Indian position on the grounds that explain Indian courts’ jurisdiction in cross-border intellectual property disputes; the laws that govern the ownership, validity and infringement of IPRs and the difficulties with regard to enforcement of foreign court orders.

This chapter summarizes the narratives related to Private International Law within the South Asian region. The chapter attempts to critically appreciate the narratives discussed in the preceding chapters. Further the chapter attempts to chart a course of action for revisiting the existing legal regime in the personal law and commercial law spaces. The chapter presents a dual strategy for the law reform effort. It suggests accession to international conventions in this space, especially the important conventions of the Hague Conference within this space. Importantly, the chapter suggests strengthening the regional harmonization efforts, exemplifying through the efforts of similar organizations in other regions. The chapter suggests that harmonized legal platforms in trans-national private law can be achieved through concerted regional efforts and organizations like the SAARC could effectively contribute to the regional harmonization of the law affecting cross-border contracts. The chapter concludes by suggesting accession to the international conventions rather than embarking upon exclusive regional efforts alone.