PVT LAW 7-12

Question 1

Important consequences of aperson or an individual having a domicile are

Answer 1

A domicile of a person or an individual decides the marriage law applicable to each
participant on the basis of his/her domicile.
○ Divorce as a concept is only applicable to parties who have a domicile.
○ The law of domicile decides the interpretation of a person’s will. According to the person’s domicile, the intestate succession or the execution of that individual’s will takes place.
○ Tax implications come into picture only after determining the domicile of the person or individual in concern

Question 2

PRINCIPLES REGARDING DOMICILE

Answer 2

1. is that nobody shall be without a domicile. The law assigns a domicile of origin to every person at the time of his birth, i.e. to a legitimate child the domicile of the father, to an illegitimate child the domicile of the mother, and to a foundling the domicile of place where he is found. This domicile of origin continues until a new domicile i.e. domicile of choice is acquired.
2. a person cannot have two domiciles at a time.= The aim of domicile is toassociate an individual with a territorial system of law- so allowing more than one domicile will muddy the waters
3. domicile connects a person with a single system of territorial law but it does not necessarily signify a system that prescribes the same principles for all the classes of persons. As for instance in India different rules will apply to different categories of population according to their religion, race or caste.
4. there is presumption in favour of the continuance of an existing domicile.

Question 3

Elements of Domicle

Answer 3

The two requisites for a fresh domicile are residence and intention.
●It must be proved that the person in question established his residence in a certain country with the intention of remaining there permanently

Question 4

Michael Anthony Rodrigues v. State of Bombay

Answer 4

■ Plaintiff born in 1918 in Goa, of parents of goan nationality.
■ Came to bombay in 1927 and never went back.
■ Educated and worked in bombay, joined the Royal Indian Armed Forces
duing the war and discharged from army with Bombay as his permanent
resident.
■ His name was also entered in the municipal rolls as a voter. On these facts,
the Bombay HC held he was a domicile of choice in Bombay

Question 5

White v. Tennant:

Answer 5

■ after abandoning his home in state P, a man took his family to a home in
state R, about a mile from state P.
■ After depositing his belongings there, he returned to State P with a view to spend the night with a relative.
■ He fell ill and died on that very night. It was held that he was domiciled in state R.

Question 6

Plummer v. IRC

Answer 6

The tax payer had an English domicile of origin. She spent the majority of
each year in England, where she was being educated.
■ However,she spent more than three months of each year Guernsey, which
had become her family home.
■ Court held that,despite the taxpayer’s intention of residence in England, her domicile of origin, she could acquire a domicile of choice in Guernsey if she could show that this was her chief residence.
■ This she was unable to do.She had not yet settled in Guernsey. Accordingly she retained her English domicile.

Question 7

Udny v Udny

Answer 7

-born w scottish domicile of origin
- moved to england for 32 and then he left england for france
- was in france for 9 years. what is his domicile- domicile of origin will be applied through revival as he was unable to prove that france was his permanent domicile

Question 8

CRAMER v CRAMER

Answer 8

Conditional intention would not suffice
○ Cramer v.Cramer
■ a woman with a French domicile of origin who came to England intending
to remain here and marry an Englishman, who was already married, did not acquire an English domicile of choice.
■ Her intention to remain was conditional on both herself and her proposed husband obtaining divorce and on their relationship continuing.
■ It would, no doubt, have been
diffrent if she had intended to remain here come what may,but that was not her intention.
○ In cases where the termination of residence is dependent on the occurrence of a contingency this will not prevent the acquisition of domicile unless the
contingency is itself unambiguous and realistic.

Question 9

Kedar Pande v. Narayan Bikram Shah

Answer 9

Kedar Pande v. Narayan Bikram Shah
■ Question of whether the defendant, whose domicile of origin was nepal,
has indian domicile.
■ Born in benaras and received education in India, resided in India- ram nagar.
■ In his passport, described as Indian citizen. Only went to nepal once,
married an Indian and his kids were educated in India. His name was in the Indian voter list and he also contested in Lok Sabha election.
■ Taking all this into account- held that defendant has acquired domicile of choice in India

Question 10

TYPES OF DOMICILE

Answer 10

1. Domicile of Origin
- Every individual must have a domicile; law assigns one at birth.
- Not necessarily the country of birth.
- Determined by law:
- Through father if legitimate.
- Through mother if illegitimate.

2. Domicile of Choice
- Acquired by an independent individual (age 16+) who:
- Moves to a new country,
- Intends to reside permanently.
- Requires severing ties with domicile of origin.
- Burden of proof lies on the person claiming change.
- Conditions (Sec 10, Indian Succession Act, 1925): a person or an
individual can acquire a new domicile by having a fixed and permanent habitat in the nation which is not the person’s domicile by origin.
1. Must be a resident of the new country.
2. Must have a clear intention to live there permanently.

3. Domicile of Dependents
- Applies to minors, married women, and mentally incapacitated persons.
- Such individuals can’t acquire domicile of choice.
- They take the domicile of the person they depend on.
- Their domicile changes if the dependent person’s domicile changes.

4. Domicile of Corporations
- A corporation’s domicile is its legal home:
- Usually where it’s incorporated or conducts main business.
- Important for taxation.
- Under common law, it is where the central control and management exists.

Question 11

The proper law of the contract comprise

Answer 11

• the express or implied choice of the parties
• ## in absence of both, the system of law which the contract has its closest and most real connection will be applied

Question 12

Vita Food Products v Unus Shipping Co

Answer 12

The Privy Council was seised of a dispute which arose from a
transportation contract concluded between a Nova Scotian and an
American corporation.
* The agreement was evidenced by a bill of lading which exempted the
Master from liability from damage that could occur to the products by negligence in transporting the same.
* The exemption clause contravened the Hague-Visby Rules which were
applicable in Newfoundland – the place from where the products were shipped.
* The parties had however chosen English law to govern the contract

The Privy Council referred to the proper law of
contract as‘the law which the parties intended to apply. Decision: The Privy Council held that English law was the proper law of the contract.
Law Applied: English law was applied to determine the rights and liabilities of the parties under the bill of lading, including the consequences of the deviation.
intention is objectively ascertained and if not expressed will be presumed from the terms of the contract and the relevant surrounding circumstances.

Question 13

Central Railway Company v. Thompson 1925

Answer 13

• It was held that the company was resident in
  both England and Sweden because the central control is evenly divided between the two
  countries and it is difficult to identify one seat of control. For domicile of a company the main factor that is seen is where it is incorporated (similar to the domicile of origin). A company is resident where there is actual place of control and it is domiciled where it is incorporated.

The House of Lords held that the company was liable for UK income tax.
Even though the central management and control were in Sweden, the company maintained significant administrative functions in the UK, anf thus would have tp pay tax

Question 14

Cesena Sulphur Co. v. Nicholson

Answer 14

laid down the central management and control test to check domicile of a company- since meetings, majority board of directors, divedends etc was all in UK, company domicile in UK only. similar to de beers case

Question 15

De Beers Consolidated Mines Ltd. v. Howe 1906

DOMICILE OF CORPORATION

Answer 15

• company was incorporated in South Africa
  and was carrying mining of diamonds. However, it was found that the actual control of affairs
  of the company was with the board of directors in London and not in South Africa. It was held
  that the company was resident in U.K. for tax purposes, although its profits were generated in
  South Africa. Lord Loreburn observed that a company cannot eat or sleep but it can keep a
  house and do business. We therefore have to see its actual place of control

Question 16

cheshires theory on contract law and diceys theory as well

Answer 16

According to Cheshire parties can select proper law by localising the contract
and grouping its elements to find the centre of gravity. For example if parties want to select English law to govern contract, they have to ‘localise’ the contract by grouping elements such as lex loci contractus, currency of transaction, language of contract, seat of arbitration and jurisdiction of courts in such a manner that the contract becomes most substantially and closely
associated with law of England.

DICEY=
beleived in party autonomy- globalisation and subjective interpretation of proper law = indian courts NOW follow this

Question 17

National
Thermal Power Corporation v. Singer Corporation 1992 SC

Answer 17

The Court accepted the party’s selection in favour of neutral English law even if the contract was not localised and emphasized that
the selection would only be disregarded if:
1. It is not bona fide
2. It is illegal
3. It is in contravention to public policy.

Question 18

When proper law will not be applied in contracts?

Answer 18

when the parties’ choice of law is made in bad faith if it
contradicts the overriding mandatory norms of the legal system which has the closest
connection with the contract.

Renusagar Power Company Ltd. v. General Electric Company 1994 SC it was observed that
in matters of international commercial arbitration, validity of parties’ choice of law must be construed in view of the public policy of India i.e.,
1. fundamental principles of justice
2. prevalent concepts of good morals
3. deep-rooted traditions of the commonwealth
4. most basic notions of justice and morality

Question 19

Impact of Arbitration Clause

Answer 19

If an arbitration clause specifies the jurisdiction of Country X, Indian courts
would defer to the principle of party autonomy and allow disputes to be
settled under the law of Country X.

• However, if the arbitration clause is one-sided or unfair, Indian courts may
  invoke public policy exception and refuse enforcement (under the
  Arbitration and Conciliation Act.)
• The determination of proper law of contract depends upon the absence or
  presence of an explicit choice, the parties’ relationship and contractual
  terms.

Question 20

Lex loci contractus

Answer 20

aw of the place where the contract is made
* Huber was an early advocate of this theory
* Contracts are entirely regulated by the lex loci contractus in terms of
form and substance and the lex loci contractus does not prevail if the
parties to the contract have another place in mind

Merits of lex loci contractus
* Certainty
* Precise
* Always straightforward
* Devoid of speculation
* The problems in this theory arise when 2 parties from different
countries execute a contract in a completely different country.
* In such scenarios, the country where the contract is executed is chosen as the place for determining the law of the contract

Demerits of Lex loci contractus
- the place of contracting may be be fraudulently inserted in
the contract to give validity to an otherwise invalid contract.
* There may be factual ties with many countries in the contract
components each of which has a claim to be regarded.

Question 21

Lex loci solutionis (law of the place where the
contract is performed)

Answer 21

fulfillment of obligations by the parties to a contract is one of the
main aspects of any contract.
* The time of performance is often specified in the contract and it must
be adhered to by all parties.
* Likewise, the mode of performance is also defined in the agreement.
* It is necessary to the thing to be achieved in the manner prescribed,
otherwise there is no performance

If an Indian signs a contract with a UAE national for the shipment of
crude oil from UAE to India, using Indian shipping and payment in
Indian currency, India is undoubtedly the place of performance and
that transaction is governed by its rule.
* If the contract was concluded in the UAE, UAE law applying the lex
loci contractus would undoubtedly be the governing law

Question 22

Modi Entertainment Network v WSG
Cricket Pvt Ltd

Answer 22

confirmed the parties’ right to select any law, including
that of a neutral legal system. The parties there had concluded an
international contract under which the respondent granted a licence to the appellant to telecast a cricket tournament organized by the ICC in Kenya on Indian television. The parties agreed that the English
Court would have jurisdiction over and English law would govern any
dispute arising from the contract.
* The Supreme Court emphasized that the selection would only be
disregarded if it was not bona fide, legal or opposed to public policy

Question 23

following exceptions to express choice of law

Answer 23

Indian private international law permits the parties expressly to select a non-state/soft law
to govern their international arbitration agreements.

following exceptions to express choice of law
○ PublicPolicy
■ a.Agreement in restraint of trade
■ b.Morality and justice
■ c.Interest of the state
○ Procedure of the forum
○ Balance of Convenience

Question 24

Absence of choice of law and the closest and
most real connection test

Answer 24

The decision of the Privy Council in Vita Food merely indicated that
the in the absence of choice, the proper law of contract would be
identified by looking at the terms of the contract and the surrounding
circumstances.
However, it did not clarify the mechanism for the
same.
* The criteria which the courts have employed to interpret the closest
and most real connection test has varied over time and may be
divided into 2 categories. These are (1) theory of localization and (2)
test of parties’ imputed intention

Question 25

Central Inland Water Transport Corp. Ltd. v. Brojo Nath Ganguly

Answer 25

If the stronger party is taking advantage of the oppressed and depressed then it is against public policy where the Court refused to give effect to a contract which permitted the employer to dismiss the employee without cause by giving three months’ notice or pay in lieu. It was held that this contract was unconscionable and opposed to public policy and therefore cannot be enforced.

Question 26

Presumptions the courts have employed to discern the imputed intentions of the parties

Answer 26

Dhanrajamal Gobindram v Shamji Kalidas ○ in ascertaining the proper law of the contract in the absence of an express choice: ■ (1)lex loci contractus: Under this presumption, the courts may assume that the parties intended to be governed by the law of the place at which the agreement was concluded, even if the meeting was transitory & fleeting and has no other connection with the contract. ■ (2)lex loci solutionis: Under this presumption, the law of the place of the performance of the contract would be relevant in identifying the applicable law in the absence of choice, ■ (3)lex fori: Under this presumption, the parties are treated as having intended that the law of the place of arbitration or litigation is to govern disputes arising from their contract. ○ The Court clarified that the lex loci contractus would be applicable only when it coincides with the lex loci solutionis. performance of the contract will be tested under the putative proper law and the lex fori (in this case, Indian law).

Question 27

tort Different theories : Lex fori, Lex Loci Delicti, Commissi

Answer 27

**Lex fori -** this theory was proposed by Savigny who was of the view that tortious liability was closely connected to criminal liability or fundamental principles of public policy applicable in the country of the forum and therefore, it should be governed by Lex fori. However english courts have never followed this view. **Lex loci delicti commissi-** where tort is committed and its character is determined by that law. Obviously any country has a legitimate and real concern with the commission of torts within its borders. ● Sometimes the locus delicti may be ambiguous as where the act may take place in one country, but harm may be caused in another country. **Proper Law**- law with which the act complained of has most significant connection.

Question 28

Badcock v. Jackson

Answer 28

Theplaintiff was a gratuitous passenger in the defendants motor car. They were both domiciled in the state of New York and were going on a weekend trip to Canada. The car was licensed and insured in the New york state from where the journey was begun. ○ The plaintiff was injured intheState of Ontario due to the negligence of the defendant. According to Law of Ontario, the drivers have no liability towards gratuitous passengers, but there was no such exemption according to the law of NewYork. ○ The NewYork Court did not apply the Ontario law, the lex loci delicti, but preferred the New York law because the facts and circumstances were most closely connected with the New York state. ○ This American case adopted the theory of proper law. But in some areas this doctrine has been criticised as it may result in di erent results / unfavourable results.

Question 29

Double Actionability

Answer 29

double actionability is a doctrine of private international law that states a tort committed in foreign jurisdiction can only be successful in a domestic court if it is actionable under both the laws of the home jurisdiction and the foreign jurisdiction

Question 30

Phillips v. Eyre

Answer 30

a dispute against the Governor of Jamaica for an assault committed against an Englishman. The act of the Governor was, nonetheless, indemni ed under Jamaican law Accordingly, the court had to determine whether the Governor could be held liable under English law. ○ The court invoked the doctrine of double actionability. ○ It stated that an act which was committed overseas would be considered as a tort if the act was action-able: ■ (1)as a tort underEnglish law (lex fori); and ■(2)as a wrong under the law where the act was committed (lexloci delicti commissi). ● It was irrelevant whether the act constituted a tort under the law of the lex loci delicti. It would succeed if the plainti could demonstrate that the defendant's behaviour was a civil wrong in some way under the legal principles of that country." ● However, the plaintiff's claim would succeed if it demonstrated that the defendant was also liable under the English law of tort. In this manner, the doctrine mandated the concurrent application' of two laws to determine the defendant' liability in any cross-border action based on tort. **"Torts committed in England would, however, be governed by domestic law"**

Question 31

Boys v Chaplin

Answer 31

The defendant was liable under English and Maltese law. Nonetheless, the quantum of damages desred was diff Boys was entitled to 53 Pounds, but English law had multiple heads of assessment of damages and therefore, Boys was entitled to 2250 Pounds as per English law. Under Maltese law, there is no right to recover compensation, for pain and suffering. But under English law, the plaintiff had the right to recover compensation for pain and suffering in addition to pecuniary damages The court held that the heads of assessment of damages was a matter of substantive law and not procedural law, and therefore, English law will apply. ○ dispute between two English soldiers who were involved in a car accident in Malta. ○ The court applied English law because it had a significantly closer connection with the dispute. ○ the House of Lords developed a flexible exception' rule that resembled Morris theory of 'the proper law of the tort' to avoid the mechanical application of the doctrine of double actionability. ○ According to this exception, the court will apply the legal principles of a system of law which has the most significant relationship with the parties and the issue, instead of applying double actionability, if there are 'clear and satisfying grounds.

Question 32

Application of Double Actionability in India

Answer 32

apply a test of double actionability in all disputes involving tortious breaches. ● However,due to a lack of explicit endorsement by the Supreme Court, the standing of the law is unclear. The Indian Courts have applied the double actionability rule in Kotah Transport v Jhalawar Transport Services Ltd and Sona Devi v Anil Kumar. * India doesn’t have any legislation/statute that specifically deals with the issue of foreign torts

Question 33

Coupland v Arabian Gulf Petroleum

Answer 33

Here is a concise summary of the case **Coupland v Arabian Gulf Petroleum**: **Facts:** - The plaintiff, a Scottish maintenance technician employed by a Libyan oil company (registered in England), was injured while working in Libya. - He sued the defendant company in an English court for personal injury damages. - The defendant argued that under Libyan law, the plaintiff had already received full compensation (a lump sum and a lifelong pension) and could not claim more. **Legal Issue:** - Whether the plaintiff's tort claim could be maintained in England, considering the Libyan compensation laws. - The issue centered on the application of the **rule in Phillips v Eyre** (as clarified in **Boys v Chaplin**)—specifically, the doctrine of **double actionability**. **Held:** - Hodgson J confirmed that **Lord Wilberforce’s formulation** of double actionability in *Boys v Chaplin* was the correct ratio: - A foreign tort is actionable in England if: 1. It is a tort under English law (**lex fori**), and 2. It is civilly actionable under the law of the place where the tort occurred (**lex loci delicti**). - However, **exceptions** may apply for justice and flexibility, depending on the parties and the issue at hand. - In this case, Hodgson J found that: - The injury would have been actionable in Libya, satisfying the second part of the test. - Therefore, the claim could proceed under **English law**, not Libyan law. **Conclusion:** The plaintiff’s tort claim was allowed in English courts because it met both requirements of the double actionability rule. The Libyan compensation system did not bar the action under English law.

Question 34

Current position in uk

Answer 34

removed double actionability . In certain circumstances, a flexible exception could displace the lex loci delicti rule with the law of another country if one or more of the issues had a substantially more significant relationship with the legal system of that country. When deciding whether to apply the exception, the court would consider factors such as any common domicile and residence of the parties

Question 35

Jurisdiction in maritime torts

Answer 35

he United Nations Convention on the Law of the Sea (UNCLOS) plays a central role in establishing jurisdictional rules and liability principles. * Jurisdictional bases include: 1. Flag State Jurisdiction: The country where the vessel is registered has authority over the ship, even in international waters. 2. Territorial Jurisdiction: The state in whose territorial waters the incident occurs may assert jurisdiction. 3. Location of Damage: If the consequences of the tort (e.g., environmental damage) occur within a state's territory or economic zone, that state may claim jurisdiction.

Question 36

Jurisdiction in aerial torts | e Chicago Convention (1944) and the Montreal Convention (1999).

Answer 36

Jurisdictional criteria include: **- State of Registration:** The country where the aircraft is registered has a claim to jurisdiction. **- Place of Departure or Arrival**: Jurisdiction may lie with the states involved in the flight route. - **Victim’s Nationality or Domicile**: In some cases, victims' home countries may assert jurisdiction. * Example: An aircraft en route from Japan to Canada crashes in international airspace, injuring passengers from several countries. Jurisdictional disputes may arise between the airline’s home country, the state of departure, the destination state, and the home states of the injured passengers.

Question 37

Applicable law in cross-border torts

Answer 37

Applicable Law in Cross-Border Torts * Determining the applicable law is a central issue in resolving maritime and aerial tort claims. Courts rely on connecting factors to identify the most appropriate legal system to apply. * Key connecting factors include: * Flag State (for ships or aircraft). * Place of the Tortious Act (lex loci delicti). * Nationality or Domicile of the Parties. * Place Where Damage Occurred.