Defining the Major problems of

Prvt. International Law

Private International Law: major problems

• private international law is concerned with the

following problems
• (a) do the courts of a country (or law district) possess
jurisdiction over the particular parties and the cause
of action? That is, the jurisdiction question;
Case concern:- Maharanee of Baroda v. Wildenstein
(1972)
• Facts The plaintiff, a French resident, purchased a painting
from the defendant, an international art dealer also
resident in France
• The painting – allegedly by Boucher
• When Maharanee discovered the painting was probably
not by Boucher, she commenced an action for rescission of
the contract of sale by serving a writ on the defendant
while she was on a brief visit to England
• The problem: should an English court exercise jurisdiction
to hear a case that involved only the most tenuous
connection with England
 Second question
• what is the correct legal classification of the
question that requires decision? That is, the
classification of the cause of action.
• An example would be whether the claim was
based upon a breach of contract, the
infringement of a copyright or the commission
of a tort.
• (characterisation)- this need to be done to
apply the rules of conflict of laws rules.
Stages of private international law
Characterization of Main Issue and
Incidental issue
Charecterisation
Connecting Factor

Renvoi

Time Factor
Procedure/Substance
Proving Foreign Law
 Stages of Conflict of Laws- Phase one

• According to the late Dean Falconbridge, in the first phase of

characterization, "The court must characterize, or define the
nature of the legal question, or each of the legal questions,
involved in the factual situationIt requires us to allocate the
question in issue to its correct legal category. Its goal is to reveal
the relevant rule for the choice of law.
• For example, is it a question of breach of contract or the
commission of a tort?
• Is it a question about capacity to marry or one relating to
whether the appropriate Formalities of marriage have been
observed it is essential to characterise the cause of action
 Re Maldonado- case
• woman domiciled in Spain who died intestate and without
living relatives. She left movable property in England and this
was claimed by both the Spanish Government and the British
Crown. - conflict of laws case
• The Role of characterisation
– This in turn depended upon whether it was a question of succession
to movables (in which case the Spanish rule would apply) or
– whether it raised a question of bona vacantia (ownerless property),
in which case it would be covered by the rule that title to property is
governed by the lex situs,(law of the place where the property is
situated) and this would lead to the application of English law.
 Case – 1
• Lets take this situation – the subject matter of the dispute is the
movable property located in england.
• English court take the jurisdiction
• Judge of the case – 1st Identify the CoL – Factors of the dispute
• has to decide the nature of the legal problem
• If the judge by applying appropriate laws decided that –
• The dispute the all about – 1. which law will do this ? What do we
mean by the appropriate law here ? Where English Law- which is the
law of the forum – or the spanish law which is the law of the party.
• succession to movables/ succession to the ownerless property
• Succession to the movable property – spanish law
• Ownerless property- English Law.
Control – English law – why because it is the
law of the forum
• 1st application of english law- ? (as the law of the
forum – to decide the nature of the the dispute) –
• If as per englihs law the nature of the dispute is
• 1. succession to movable property - (rule of
engloish law state that – law of the spain.( the
court of england will function as if the court of
spain 0r,
• 2. ownerless property - as per english law , the
law of the england will be applicable -
• Ogden v Ogden [1908]
• A domiciled Frenchman, who was 19, married a domiciled Englishwoman in
England without first obtaining the consent of his surviving parent,
• which he was required to do by Article 148 of the French Civil Code.
• The husband obtained an annulment of the marriage in a French court on
the ground of want of consent. The wife then went through a ceremony of
marriage in England with a domiciled Englishman.
• The second ‘husband’ petitioned for a decree of nullity on the ground that at
the time of the ceremony his ‘wife’ was still married to the Frenchman.
• The material validity of the marriage (that is the husband’s capacity) must be
governed by French law
• the formal validity of the marriage ceremony is determined by English law
 Characterisation: Approaches; which law?
Lex fori vs Lex Causa

•Lex Fori(the law of the court in which the trial is taking place) proposed by the German
and French writers, Kahn and Bartin,
•As Dicey, Morris and Collins ‘if the foreign law is allowed to determine in
what situations it is to be applied, the law of the forum†[lex fori] would
lose all control over the application of its own conflicts rules, and would
no Longer be master in its own home’.
•According to Cheshire and North (Private International Law, 12th edn, p
45): There can be little doubt that classification of the cause of action is
in practice effected on the basis of the law of the forum…But, since the
classification is required for a case containing a foreign element, it should
not necessarily be identical with that which would be appropriate in a
purely domestic case.(he is talking about comity)
 Characterisation: Approaches
• lex causae (law of the cause), Ernst Rabel,and advanced in England by W.
E. Beckett

• Every legal rule takes its classification from the legal system to which it
belongs’ (Wolff, 1950, p.154).
• Objection
– This is superficially convincing but it is arguing in a circle to say that
the foreign law governs the process of characterisation before the
process of characterisation has led to the selection of the appropriate
legal system.
– if there are two possible foreign laws to govern the matter, and they
characterise the issue differently, which is to be adopted
 Characterisation: Approaches
• Falconbridge’s views: The Canadian lawyer,
Falconbridge, proposed a two-stage process
• The first stage, a task for the lex fori, is to
define the scope of the legal category, the
categories not being those of the domestic
legal system but of its private international law,
and the second is to examine the relevant
foreign rule in its own context to see whether it
can be fitted into the legal category in question.
 Identification of the
foreign element

Applying the law of the forum to

determine the character of the
legal dispute

Application of the Law of the

appropriate law as per the rule of
conflict of laws of the forum state
The Third problem : Choice of Law
• what is the legal system that governs the
matter? The answer to this question normally
requires the determination of the appropriate
connecting factor (sometimes referred to as
the choice of law question);
• CoL Rules of the law of the Forum country will
determine the Choice of Law
• Connecting factors
• After characterisation the court must select
the legal system that governs the matter.
• The selection of the governing law is
conditioned by what is called a connecting
factor. This varies with the facts and
circumstances
 Incidental Question
• The question of Incidental question - regarded today as a
separate question (the distinction for identifying it as such
probably belongs to the German jurist Wilhelm Wengler in
the 1930s)
• Requirement
• 1. main question should be governed by the law of a foreign
country
• There must be a subsidiary question capable of arising in his
own right
• Subsidiary question can lead to different decisions
 How incidental?
• Suppose a Greek national dies domiciled in Greece leaving movables in England.
The English rule would refer the distribution of this part of his estate to Greek law.
• Suppose also that under Greek law his widow is entitled to a proportion of his
estate.
• The marriage was in England and, though valid by English domestic law (which an
English court would apply since it is the lex loci celebrationis), is void by Greek
domestic law (which is applicable under Greek conflict of laws rules) because no
Greek priest was present at the ceremony.
• Incidental question and views
• one view, the widow should not be permitted to share in the estate because
otherwise full effect would not be given to the English conflict rule that succession
to movables is governed by Greek law
• another view, she should be permitted to do so otherwise full effect would not be
given to the English conflict rule that the validity of the marriage is governed by
English law.
• Lawrence v Lawrence [1985] are that the first husband and
his wife married in Brazil. Subsequently, the wife divorced
the husband in Nevada (this was not recognised in Brazil)
and the next day married the second husband in Nevada.
The second husband petitioned for a declaration as to the
validity of this second marriage.

• The incidental question arose from the fact that, under

Brazilian law – the law of the wife’s domicile – to which
choice of law rules referred capacity to marry, she lacked
capacity to marry the second husband.
 Two possibilities
• How the incidental question to be answered
• Whether the law governing the main issue
should also govern the incidental question(the
lex causae approach)
• Whether the law of the forum (lex fori)
should themselves govern the incidental
questions(lex fori approach)
 Connecting factors
• lex fori (the law of the court in which the trial is taking place).
• lex contractus (the law which governs a contract).
• lex loci delicti (the law of the place where the tort was committed)
• lex situs (the law of the place where land or some other thing is
situated)- english law
• lex loci actus (the law of the place where a transaction was carried out)
• lex loci celebrationis (the law of the place where a marriage is
celebrated)
• lex incorporationis (the law of the place of incorporation): this governs
assignments of registered shares
• lex protectionis (the law under which legal protection of an intellectual
property right is conferred).
 Renvoi: an explanation
• After characterisation the court must select the legal
system that governs the matter. Choice of law
• When it is decided that an issue is governed by the law
of a particular country, what is the meaning to be given
to the word ‘law’?
• does this mean the rules of domestic law, as these
would apply to a wholly internal case, or does it refer to
law in its wider sense including conflict of laws rules?
• This ambiguity in the expression ‘Foreign law’ gives rise
to the difficult problem of renvoi.
 Renvoi- what and how?
• When lex causea is a foreign law
What should it mean-
– Foreign domestic law rules (alone) or
– Foreign law including entirely (that is including its
choice of law (this is renvoi)
(Broadly stated, the doctrine of the renvoi is that, when
by its rules of the conflict of laws a court must apply the
law of some other legal unit, it must apply not only the
internal law of that unit, but also its rules of the conflict
of laws)
 Remission and Transmission
• Remission- the process of foreign conflict of
law rules which refer the case back to its
starting point.
• Transmission- where the foreign conflict of law
rules which refer the case to the law of a third
country.
 Renvoi: jurists opinion

Professor Schreiber:
“When the Conflict of Laws rule of the forum
refers a jural matter  to a foreign law for
decision, is the reference to the corresponding
rule of the Conflict of Laws of that foreign law, or
is the reference to the purely internal rules of
law of the foreign system; i.e., to the totality of
the  foreign law minus its Conflict-of-Laws rules
 Illustration
X is an English National – but domiciled in
Maxico- died leaving some moveable property in
England- (succession to movable property)
The conflict of law rules of England- this will be
done by the law of the domicile nation
The conflict of law ruled of Maxico- the law of
the nationality
 Example in law
• Article 27 of the Law of Introduction to the German Civil Code,
(1990)-
• provides for the application of German law whenever in matters
relating to capacity, marriage, matrimonial property, divorce, and
succession, the foreign law refers back to German law.
• According to Article 28 of the same law, Article 27 is inapplicable
to property situated in a third State where different law is
applicable
• Renvoi has thus been expressly sanctioned by the German
legislator with respect to all matters based upon the principle of
nationality, in so far as they have been regulated in the Code,
provided the foreign law refers back to
 Why renvoi- by German law

• principle that foreign law is applied in

Germany not for the reason and to the extent
that it wants to be applied, but for the reason
and to the extent that its application
corresponds to the spirit of our own law.
 Example in court :- Forgo's Case
• A Bavarian national died without a will in France.
• This national lived in France since a very young age.
• The French court had a dilemma of whether to apply Bavarian or French
law.
• Under Bavarian law, collateral relatives [i.e. cousins, nieces, nephews,
aunts, uncles, siblings, etc.] could inherit the movables, but not so much
under the law of France.
• In France the movables would have been passed on to the French
government.
• So, what happened was that the French Court referred the question to
Bavarian Law, but the Bavarian Private International Law referred the
question back to French law.
• So, the French Court accepted the back-reference and applied French law.
 Single Renvoi

Set of Law A

The Reference back is accepted

andapply the internal law of A Refer To set of Law B Including Conflict
Rules Which refer back to Country A
 Single Renvoi
the court might interpret the choice of law rule as
pointing to French law including its conflict of laws
rules. This would refer back to English law. The court
could then interpret this as being English domestic law
and find for B. This is known as ‘accepting the renvoi’.
This method requires proof of the conflict rules for the
foreign country, but it does not require proof of the
foreign rules about renvoi. t is usually called the theory
of ‘single’ or ‘double’ renvoi. There are famous French
authorities supporting this view (Forgo’s case in 1883)
 Renvoi Approaches : double’ renvoi

the court might decide the case in the same way as it

would be decided by the French court. the French court
would refer to English law and interpret that reference to
mean English conflict of laws, and would ‘accept the renvoi’
from English law and apply French domestic law, then the
English court would apply French domestic law. This method
requires proof not only of the conflict rule of the foreign
country (in this case relating to succession), but also the
foreign rules about renvoi. The third approach represents
the present doctrine of the English courts. It is usually called
the theory of ‘total’ or ‘double’ renvoi.
 Renvoi Approaches (Double )
• Re Annesley (1926), where the testatrix, a British national, died domiciled in France
according to English law, but domiciled in England according to French law. Her will was
valid by English domestic law, but invalid by French domestic law, for she had failed to
leave two thirds of her property to her children. Under the English choice of law rule, the
essential validity of the will was governed by French law as the law of her domicile at the
time of her death.

• The court applied the total renvoi theory and held that the will was governed by French
domestic law for the following reasons: the English court took the reference to French law
to mean that the case must be decided as a French court would decide it. According to
French conflict rules, the succession was governed by English law as the law of the
testatrix’s nationality. However, a French court would apply the conflict rules of that law,
that is, it would accept the renvoi, and apply French domestic law
• Recent application Neilson v. Overseas Projects In Neilson v. Overseas Projects Corp of
Victoria Ltd 2005 233 CLR
 Why Renvoi- critical appreciation
• It is self-defeating to the purpose to apply a foreign law unless
one applies the solution that would actually be applied by the
court of foreign county
• Jonathan Harris in his article “Does Choice of Law make any
sense”, 2004- This so called justification of the renvoi is
problematic and depends upon the assumption that application
of a foreign law means applying the solution that a foreign court
would actually apply- it is to assert that a state’s domestic court
ever really applies foreign law. The reality is that protectionist
rules of one state like- rule of classification, the non- applicability
of foreign procedural rules and the doctrine of public policy all
ensure often the foreign law is not applicable in toto.
• Renvoi will protect the reasonable Expectation of the
Parties
• Adrian Briggs ‘In Praise and Defence of Renvoi’- If a
parties to the contract stipulates Mexican court
shout have jurisdiction, it is clear they must have
wanted a Mexican court to hear the issue by applying
the Mexican Law in totatlity-
• Better solution is jurisdiction issue – Renvoi should
operate if the other non-Mexican court in support of
stay in proceedings.
• Achieving Uniformity in terms of resolution of
the case.
• But it is really achievable- doctrine of public
police and other domestic concern
• Macmillan Inc v Bishopsgate Investment Trust
Plc, 1995-
• ‘ the uniforminity cannot be achieved by judicial
mental gymnastics but only by international
convention’
• Renvoi Can be a deterrent to forum Shopping
• Substance of law can be protected, but what
will happen to procedure,
• Rules of jurisdiction barding forum shopping
would be a better solution.
 Application of Renvoi
• Not used in vast majority casses- idealy can only possible if one
party to the litigation expressly plead it.(coast and difficulty
involved)
• The commercial areas of conflict of laws (the dominating aspect
of the subject) has outlawed the doctrine- the contractual
obligation under Rome-I Regulation and non- contractual
obligation by Rome-II Regulation has excluded the doctrine
• Jacobs V Motor Insurers Bureau, 2010 ALL ER (comm) 1128- In
the area where renvoi is not Expressly excluded, there is a
‘presumption’ that the doctrine is not applicable and there
need to be a ‘strong reason’ for it to be applied.
• How to rebutted the presumption- that are
two approaches
• Case- by- case – facts specific- domestic policy
of the country
• Class of case- judicial practice.
 Renvoi : Indian Approach
• Bhanu Constructions Company V A.P. State
Electricity Board, 1997
• Facts
• The Government of India entered into a loan
agreement No.IDP-85 dated 21-12-1992 with
Overseas Economic Co-operation Fund (for
obtaining funds for the implementation of the
Srisailam Power Transmission System Project.
 Renvoi : Indian Approach
• National Thermal Power ... vs Singer Company And Ors on 7 May,
1992 Contract is not affected by Renvoi
• Court Held "One of the clearest rejections of any renvoi doctrine is to
be found in the field of contract, it being thought that no sane
businessman or his lawyers would choose the application of renvoi.
Lord Diplock rejected the application of the doctrine in contract thus:
• "One final comment upon what under English conflict rules is meant
by the 'proper law' of a contract may be appropriate. It is the
substantive law of the country which the parties have chosen as that
by which their mutual legally enforceable rights are to be ascertained,
but excluding any renvoi, whether of remission or transmission, that
the Courts of that country might themselves apply if the matter were
litigated before them.
The Next Issue- Substance and Procedure
• Difference between substance and procedure
• This is an established rule- that the rule of Procedure
governed by the law of the forum.
• One of the eternal truths of every system of private
international law is that a distinction must be made between
substance and procedure. (between Rights and remedy)
• In this context- British Linen co v Drummond,1830- The
substantive rights of the parties to an action may be
governed by a foreign law, but all matters appertaining to
procedure are governed exclusively by the law of the forum.
• Self- evident- the Principle
• Don v Lippmann,
• A British Creditor who sued his debtor in
Scotland, could not insist a trial by Jury, nor in
the converse case, could a Scottish creditor
suing in England refuse the intervention of a
Jury.
• Difficulty in categorising procedural / Substantive
• Scarman J observed: When is a question one of substantive law?
When is a question merely one of evidence or procedure? I
attempt no general answer to these questions; for an answer
can only be made after an analysis of the specific questions
calling for a decision, its legal background and factual content.

• Lush LJ “The mode of proceeding by which a legal right is

enforced, as distinguished from the law which gives or defines
the right, and which by means of the proceeding the court is to
administer the machinery as distinct from its product”
 Importance of distinction between
sustenance and Procedure
• Principle is certain and universal- its application is
considerably complicated, especially when we try to
establish an objective test.
• Unless- the test we are talking about must keep the
private international law into consideration- or else it
will defeat the purpose meaning there by sometime
the connection between the two is so intimate to
treat domestic rule an procedure will defeat the
policy which demands the application of a foreign
substantive law.
 Leroux v Brown
• A glaring example would be- RULE OF
PROCEDURE
Section 4 of the statute of Frauds, which
formerly provided that no action should be
brought on certain contract(emplyment
contrcat is one ) unless they were evident by a
note or memorandum signed by party to be
charged or by lawfully authorised agents.
• An oral agreement was made in France by which the
defendant, resident in England, Agreed to employ the
plaintiff, resident in France, for a period that was
longer than a year. The contract was Valid and
enforceable by French Law, which was the law of the
proper law of the contract.
• But in case of English law, the contact is a valid contact
but unenforceable because of statute of Frauds.
• An action brought in England, on the ground of
breach.
• The domestic rule v. Rule of private International
Law
• To refuse him an right of action in England on the
contract was tantamount to denying that the
contract, admittedly govern as substance by French
Law, conferred a right on him. It is a stultification of
private international law to refuse to a foreign right
substiquestly valid under its governing law, Unless
its recognition will conflict with some rule of public
policy so insitenet to overide all other consideration
 How the distinction to be made
• How the lines between the Substance and
Procedure must be drawn
• Poyser v Minors, 1881, Lush LJ
• The mode of the proceeding by which a legal
right is enforced, as distingushed from the law
which gives or define the right, and which by
means of the proceedings the courts is to
administer the mechanism as distinguished
from its Product.
• How far it is correct to substitute “mode of proceeding” for
“procedure”- does the definition ensure a just and convenient
Solution.
• It implies that since the owner has chosen to fashion his foreign-
acquired right into a new form though the instrumentality of
English machinery, he must rest content with the design and
movement of the machine. This sounds sensible but if, as in Leroux
v Brown , the machinery refuse to move. This is like one private
International Law is nullified the other Private International Law.
• The alternative solution- if the metaphor is alternatively used as-
“Rights and Remedy”- This does not always admit contrast in law.
• Historically speaking, they are inseparable- Chase Manhatten
Bank N.A v Isreal-British Bank (London) , 1981- Goulding J-
• Within the municipal confines of as a single legal system,
right and remedy are indissolubly connected and correlated,
each contributing in historical dialogue to the development
of the other, and save in very special circumstances, it is an
idle to ask whether the court vindicates the suitor’s
substantive right and give the suitor a procedural remedy as
to ask whether thought is a mental or cerebral Process. In
the fact the court does is does both things by one and the
same act.
• The through is that the substance and procedure cannot be
relegated to clear-cut categories. There is no logical rule to
division rule. This determination can not be done in abstract
form.
• But, this process must be made in a relative term, with respect
to the propose of such distinguishing process.
• Scarman J in the case of Re Fuld’s Estate case observed: When is
a question one of substantive law? When is a question merely
one of evidence or procedure? I attempt no general answer to
these questions; for an answer can only be made after an
analysis of the specific questions calling for a decision, its legal
background and factual content.
 Conclusion
• The line should not be drawn in the same
place for all purpose. But relevant
circumstances must be taken into
consideration
• Proof of foreign law
• Foreign law as a question of fact
 Foreign Law; A question of fact

• The establish rule is that knowledge of foreign

law- must not imputed to the domestic judge.
• Foreign Law is a question of Fact- but a
peculiar kind- this is a kind of fact which has
no doubt apposite.
Proving Foreign Law: Question of Fact or law

• Distinction Between fact and Law

• Facts have to be pleaded by the parties, while questions of law have to be
considered by the court ex officio.
• Secondly, the distinction between questions of fact and questions of law is
relevant for the decision whether a certain matter is subject to evidence.
Whereas questions of law are governed by the principle “iuris novit curia”,
questions of fact have to be proven by the parties.
• In case that the proof of certain facts can not be established (“non liquet”), the
decision is made in disfavour of the party on which the burden of proof lies.
• Thirdly, the distinction is important with regard to the judicial control of court
decisions. The decision of a lower court may be overruled on appeal as far as
questions of law are concerned, whereas the statements of fact made by the
lower court normally are binding on the court of appeal
 Proving Foreign Law : Approaches
The ‘Active Approach’
• the treatment of foreign law refers to the active involvement of
the court in introducing and ascertaining the relevant content of
foreign law. The Active Approach is typical of courts sitting in
civil law jurisdictions, where both questions of fact and law are
decided by a judge, who is presumed to know the law (jura novit
curia) and where parties have no formal duty to specify legal
grounds for an action.
• Generally, in states where courts are categorized as active in
their approach to the treatment of foreign law, the application
of the domestic conflict-of-law/private international law rules is
mandatory
Proof of foreign law Common Law Approach

• THE PASSIVE APPROACH

• In states where courts are categorized as ‘passive’ in their
approach to the treatment of foreign law, parties must
plead and prove the relevant content of the foreign law
invoked. What is called the ‘Passive Approach’ is typical in
common law jurisdictions, where parties are responsible
for alleging facts and invoking applicable law. In these
jurisdictions, the court’s role is generally limited to the
drawing of conclusions from proof adduced by the
parties. Judges in these states play no role in the
gathering of information on facts.
Proof of foreign law Common Law Approach

foreign law as fact.

• it must be pleaded
• it must be proved.
• court does not always take judicial notice of foreign law.
• The foreign law must be proved by expert evidence: Glencore
International AG v Metro Trading Inc [2001 ONCV 2011 564]
• The burden of proving foreign law lies on the party who bases his claim
or defence on it. If that party adduces no evidence, or insufficient
evidence, of the foreign law, the court applies domestic law.
• When faced with a question governed by foreign law, Australian courts
start, as a general principle, with the presumption that the foreign law
is the same as Australian law unless proven otherwise
 Proof of foreign law Methods
Methods available to courts for the ascertainment of foreign law include the use
of
• certifi cates or certifi cats de coutumes: a tool resembling an affi davit or
memorandum, issued by a foreign authority in response to questions
formulated by the parties to a dispute ;
• multilateral treaties,
• bilateral treaties;
• documents, including legislative texts, doctrine, case law, textbooks and
databases;
• court-appointed or party-appointed experts, including embassies/consulates
and academics from universities;
• assistance from the Supreme Court, the Ministry of Justice or the Ministry of
Foreign Affairs in the forum, and specialized institutes, such as the
International Legal Institute and the TMC Asser Institute in The Hague, etc
 Proof of foreign law (India)
In this regard, the Indian Evidence Act, 1872 provides
that if a court does not take judicial notice of a fact,
such fact should be proved. (Section 56 of the Indian
Evidence Act) As an Indian court will take judicial
notice only of laws in force in India, foreign law must
be proved like any other fact. (Section 57 of the
Indian Evidence Act) Therefore, if a party wants to
rely on foreign law, it should be pleaded like any
other fact and be proved by evidence of experts in
that law.
 Proof of foreign law (India)
Sec 47 Opinions of experts.- When the Court has to form an
opinion upon a point of foreign law, or of science, or art, or
as to identity of handwriting or finger impressions], the
opinions upon that point of persons specially skilled in such
foreign law, science or art, 3[ or in questions as to identity of
handwriting] 2[ or finger impressions] are relevant facts.
Such persons are called experts.
• Harishankar Jain v. Sonia Gandhi, AIR 2001 SC 3689,
where the court held that it would be able to interpret the
agreement’s choice of law provisions only if the parties
adduced evidence thereof.
 Exclusion of Foreign Law
• There can be no doubt that the forum controls the cases that come before it
and the forum must have power to reject suits, both domestic and foreign,
which offend against some fundamental principle of its operation.
• Lord Parker in Dynamit Actien Gesellschaft v Rio Tinto , [1918] AC 260, p 292.
• Whenever the courts of this country are called upon to decide as to the
rights and liabilities of the parties to a contract, the effect on such a contract
of the public policy of this country must necessarily be a relevant
consideration. Every legal decision of our courts consists of the application
of our own law to the facts of the case as ascertained by appropriate
evidence. One of these facts may be the state of some foreign law, but it is
not the foreign law but our own law to which effect is given … As has often
been said, private international law is really a branch of municipal law and
obviously there can be no branch of law in which the general policy of such
law can be properly ignored.
 Exclusion of Foreign Law

Public Policy
• public policy principle eludes more precise definition. Its flavour is
captured by the much repeated words of Judge Cardozo that the
court will exclude the foreign decree only when it 'would violate
some fundamental principle of justice, some prevalent conception of
good morals, some deep-rooted tradition of the common weal':
see Loucks v Standard Oil Co of New York (1918) 120 NE 198, 202
• In the conflict of laws it is obviously necessary that public policy be
kept within limits, for otherwise the whole basis of the system is liable
to be frustrated. The courts should be, and are, therefore slower to
invoke public policy in cases involving a foreign element than when a
domestic legal issue is involved
 Exclusion of Foreign Law

There are three forms of legislation that will not be enforced by courts
• (a) revenue laws;
• (b) penal laws; and
• (c) other public laws. Lord
• (Denning MR drew upon the classification in the relevant edition
of Dicey and Morris, Conflict of Laws (10th edn, 1980). AG of New
Zealand v Ortiz [1984] 1 AC 1; [1982]
• Reason : enforcement of such claims is an extension of the
sovereign power which imposed the taxes or penalties and ‘an
assertion of sovereign authority by one state within the territory of
another,
 Penal, revenue and other public laws
The Antelope, ((1825) 10 p 123, per Marshall CJ.)The courts of no
country execute the penal laws of another.
• In Huntington v Attrill [1893] AC 150, 156 ‘penal’ was defined to
• include not only crimes in the strict sense but ‘all breaches of
public law punishable by pecuniary or otherwise, at the
instance of the state government, or someone representing
the public’ and ‘all suits in favour of the state for the recovery
of pecuniary penalties for any violation of statutes for the
protection of its revenue or other municipal laws, and to all
judgments for such penalties’. It is not necessary that the law
in question is found in the criminal code of the foreign country.
 Exclusion of Penal laws
Att-Gen of New Zealand v Ortiz [1984] AC 1
• The New Zealand Government sought to recover a
valuable Maori carving which had been illegally exported
from New Zealand. The carving had been bought by Ortiz
and was in the possession of Sotheby’s, the auctioneers,
for sale on behalf of Ortiz. A New Zealand statute
provided that historic articles exported without
permission were forfeited to the Crown. In the Court of
Appeal Lord Denning MR held that the New Zealand
statute could not be enforced because it was a public
law .In the House of Lords Decision was Reversed
 Revenue
There is a well-recognised rule – it goes back nearly 300
years – that courts will not collect the taxes of foreign states.
The reason is that ‘tax gathering is not a matter of contract
but of authority and administration as between the State
and those within its jurisdiction’ (Government of India v
Taylor [1955] AC 491, 514). So, the courts do not enforce
foreign revenue laws, nor judgments based on foreign
revenue claims.
• What is meant by ‘revenue law’? There is no definition but
it clearly includes income tax, capital gains tax, a
succession duty, and customs duties.
Exclusion of Public laws
This is a particular problem in where the concept of a distinct ‘public
law’ is a matter of continuing debate. The learned authors of Dicey
and Morris give as examples:
• (a) import/export regulations;
• (b) trading with the enemy legislation;
• (c) price control legislation; and
• (d) anti-trust legislation.
• (e)expropriatory legislation
• Approaches : Lord Denning admitted that the expression ‘other
public laws’ was rather vague, but the learned judge considered that
the laws that came within the expression were eiusdem generis with
penal or revenue laws
 Exclusion of Public Laws
• Attorney General of the UK sought injunctions in Australia and
New Zealand to restrain publication of the book, Spycatcher
• Defence : Public law
• Held The High Court of Australia viewed the case as an attempt
by the UK to employ the equitable doctrine of confidence to
protect its Security Services and, thus, to sustain a governmental
interest and, as such, the action fell within the category ‘other
public laws’, while the New Zealand Court of Appeal formed the
view that the purpose of the action was to protect the
employer/employee relationship and, thus, the action should
not be treated as an attempt to enforce ‘other public laws’.
Exclusion of Public Laws (Expropriation)
• Luther v Sagor, where the facts were as follows: timber situated
in Russia belonged to the plaintiffs, who were a company
incorporated in Russia. The timber was seized by the Soviet
authorities, pursuant to a nationalisation decree. Part of the
timber was brought to England and sold to the defendant by a
Soviet agent. The plaintiffs sued for damages on the basis that
the timber still belonged to them and all prior acts constituted
trespass.
• A strong Court of Appeal held that the courts of one sovereign
State cannot sit in judgment on the legislative acts of another
sovereign State, and that title to the property was to be
determined by the lex situs.
 Exclusion of Public Laws
• Other Possible areas of exclusion
• Where a foreign law or status violates conceptions of human rights
• 1941 decree of the National Socialist Government of Germany depriving
Jewish émigrés of their German nationality and, consequentially, leading
to the confiscation of their property. Lord Cross of Chelsea said that a
racially discriminatory and confiscatory law of this sort was so grave an
infringement of human rights that the courts of this country ought to
refuse to recognise it as a law at all: Oppenheimer v Cattermole[1976]
AC 249, 277-278
• Where the contract prejudices the country in its conduct of foreign
affairs
• Where conceptions of justice are violated
• Where conceptions of morality are violated