Choice of Law under Private International Law | Conflict with Law |
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 Published On Jul 19, 2021

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In this video Adv. Vanita has discussed about CHOICE OF LAW UNDER that is as follows :

CHOICE OF LAW
Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different states, and in the United States between individual federated states. The outcome of this process is potentially to require the courts of one jurisdiction to apply the law of a different jurisdiction in lawsuits arising from, say, family law, tort or contract
In case the court comes to the conclusion that it has jurisdiction, then in a conflict of law case (i.e., cases foreign element), the question that arises is :
• under which law the suit should be decided ?
• Whether the law of the forum (i.e., internal law) will apply or whether some foreign law or foreign laws will apply. This is known as the question of choice of law.
The problem of choice of law may be illustrated by an example:
Suppose the Indian court comes to the conclusion that it has jurisdiction to try the suit, then the question before it would be as to reference to the law of which country or place the suit should be decided, if the suit was filed for damages for breach of a contract entered into between a Burmese resident trader and a Chinese resident trader in Dacca for the supply of certain quantity of rice to be shipped to Calcutta. Now presume that the suit was filed in a Calcutta which law is to be applied : law of Burma, law of China, law of Bangladesh or law of India ?
Take another example, a wife files a petition for judicial separation an Indian court under Section 10, Hindu Marriage Act on the ground of desertion. Both parties are Indian domiciled Hindus married in England, and while they went to Japan the husband deserted her there. The Indian court has jurisdiction to try the suit. Now the question is, which law should be applied: English, Japanese or Indian ? The question of choice of law is to be determined in all such cases by Indian Private International Law.

ALLOCATION OF JURIDICAL CATEGORY TO THE FOREIGN ELEMENT CASE
Once the court classifies the nature of the dispute, then it has to determine which law should it apply or which legal system that governs the matter?
• internal law or
• foreign law.
The courts have to select the law based upon factual situation and the connecting factors. Accordingly, it decides which law should apply either law of contract, or tort, or property law or matrimonial law, etc.
Further the correct rule/proper law depend on some connecting factor, such as domicile or the situation of immovable, which links the question to a definite legal system.
Example
X dies intestate domiciled in France, leaving movables in England. Since he has been connected by domicile with France, (as per choice of law rule) the question of intestate succession must be governed by French law.
To apply a law, one has to decide: whether a particular issue is substantive or procedural ?
The substantive rights of the parties to an action may be governed by a foreign law (i.e., lex causae), but all matters appertaining to procedure are governed exclusively by the law of the forum (i.e., lex fori).
OGDEN
V.
OGDEN
(1908)
A 19-year-old Frenchman married on English women in England without the consent of his parents as required under Article 148 of the French code for those who below 25 years of age. Later the French father took the boy and get the marriage annulled before French court and he got married to someone. The women filed for restitution and Adultery against the husband before the English court. But the court rejected the petition on want of jurisdiction. Later the women married an Englishman and lived for some time. After that the Englishman filed for annulment of marriage on the ground of existing valid marriage with the Frenchman. The court considered parental consent as a formality and hence applied the English law and hence the marriage was declared valid and the second marriage was annulled.

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