Public and Private International Law: Scope and Difference

The words international law cover two different subjects. Public international law governs relations between states and other international persons. Private international law, also called conflict of laws, is the part of a country's own law that deals with private disputes having a foreign element. This note explains the scope of each, the questions private international law answers, its sources in India, and the points on which the two differ and meet.

1. Public International Law

• Scope. Rules binding states, international organisations and, in some fields, individuals, on matters such as treaties, territory, jurisdiction, the sea, human rights and the use of force.
• Sources. Treaties, international custom and general principles of law, with judicial decisions and writers as subsidiary means (Article 38 of the ICJ Statute)
• Forum. The ICJ, arbitral and specialised tribunals, political organs such as the Security Council, and national courts applying international law.

2. Private International Law

When a dispute involves a foreign element, such as a contract made abroad, a marriage between parties of different domiciles, or property in another country, a court must decide whether it can hear the case, which country's law applies, and whether a foreign judgment should be enforced. The rules on these questions form private international law. Joseph Story is credited with popularising the term in his Commentaries on the Conflict of Laws (1834); English writers such as Dicey preferred the name conflict of laws.

Figure 1: The three questions of private international law

• Jurisdiction. Whether the court has power to hear the case, based on factors such as the defendant's residence, the place where the cause of action arose, or submission.
• Choice of law. Which legal system governs the issue, decided through connecting factors such as domicile (lex domicilii), the place where property is situated (lex situs), the place of contracting (lex loci contractus), the proper law of a contract, and the law of the forum (lex fori) for procedure.
• Recognition and enforcement. Whether a foreign judgment, decree or arbitral award will be given effect.

3. Private International Law in India

• Code of Civil Procedure. Section 13 makes a foreign judgment conclusive except where it was not given by a court of competent jurisdiction, was not on the merits, rests on an incorrect view of international law or refuses to recognise Indian law where applicable, violates natural justice, was obtained by fraud, or sustains a claim founded on breach of Indian law; s.14 presumes competent jurisdiction on a certified copy; s.44A allows execution of decrees of superior courts of reciprocating territories.
• Arbitration. Part II of the Arbitration and Conciliation Act, 1996 provides for enforcement of foreign awards under the New York and Geneva Conventions.
• Personal laws and statutes. Statutes such as the Indian Succession Act, the Special Marriage Act and the Foreign Marriage Act, 1969 contain choice of law rules; much of the subject remains judge made.
• Hague Conference. India became a member of the Hague Conference on Private International Law on 13 March 2008.
• Y. Narasimha Rao v Y. Venkata Lakshmi (1991). A divorce decree from a Missouri court, obtained on a ground not available under the Hindu Marriage Act and without the wife's submission, was not recognised; the Court laid down that the matrimonial law under which the parties married should ordinarily govern.
• National Thermal Power Corporation v Singer Co (1992). The proper law of a contract is the law expressly or impliedly chosen by the parties, and otherwise the law with which the transaction has its closest and most real connection.

4. Points of Difference

Figure 2: Public and private international law compared

• Misnomer. Private international law is not international in source: each country has its own rules, so the same case may be decided differently in different countries.
• Parties. Public international law mainly concerns states; private international law concerns individuals and companies.
• Enforcement. Public international law depends on states and international bodies; private international law is enforced by national courts like any other domestic law.

5. Where They Meet

• Conventions. States harmonise private international law through treaties, such as the Hague Conventions and the New York Convention, 1958, which are instruments of public international law.
• Harmonising bodies. The Hague Conference, UNCITRAL (established in 1966) and UNIDROIT prepare uniform rules and model laws, such as the UNCITRAL Model Law on which the 1996 Act is based.
• Transnational law. Philip Jessup used the term in 1956 for all law regulating actions or events that cross national frontiers, public and private.
• Comity. Recognition of foreign judgments and laws rests partly on comity, the courtesy that states extend to each other's acts.

6. Frequently Asked Questions

Why is private international law called a misnomer?

Because it is neither international nor wholly private. It is part of each country's own law, differs from country to country, and applies to private disputes that merely have a foreign element.

When is a foreign divorce decree recognised in India?

Under Y. Narasimha Rao (1991), ordinarily only when it is granted on a ground available under the law under which the parties married, and the respondent either was domiciled or habitually resident within the foreign court's jurisdiction, voluntarily and effectively submitted to that court, or consented to the decree.

7. Related Topics

• Topic 1: International Law: Meaning, Definition and Development. Scope of the subject.
• Topic 4: International Law and Municipal Law. Relationship of the two systems.
• Topic 58: Private International Law in India. Domicile, choice of law and foreign judgments in detail.