2. RECOGNITION AND ENFORCEMENT OF FOREIGN
JUDGEMENTS
S.NO. TITLE
1 INTRODUCTION
2 SOURCES AND FUNCTIONS
3 BASIS AND DOCTORINE OF COMITY
4 TRADITIONAL RULES
5 RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENTS
SECTION- 13 AND 44A OF CPC, 1908
6 SUPREME COURT JUDGEMENT AND ARBITRATION AND CONCILIATION
ACT
7 CONCLUSION
8 REFERENCES
3. INTRODUCTION
The need for Private International Laws arises when there is a foreign geographical
connection with the case, or there is some presence of the foreign element. This foreign
element can be anything ranging from a contract between two parties of different
nationalities to a tort committed with foreign influence.
In such cases, the concept of Private International Laws is also called ‘Conflict of Laws’. In
such cases, the court undertaking the case has to apply the principles of private international
laws along with domestic laws.
Private International Law describes the body of law surrounding which law governs when
there is a conflict between citizens of different countries. In common law jurisdictions, it
is sometimes known as "conflict of laws."
Typically, one will be asking one or more of three questions when researching a private
international law problem:
1. In which jurisdiction should the dispute be decided?
2. Which law should be applied?
3. How should a foreign judgment be enforced?
4. PRIVATE INTERNATIONAL LAW- SOURCES AND
FUNCTION
Much private international law is governed by the domestic law of the countries in
question. However, in recent years there has been an effort to create a more unified system
of private international law, and treaties and conventions, model laws, legal guides, and other
instruments may also be used. Private international law tends to be subject-specific. Treaties
and conventions are the persuasive source of international law and are considered "hard
law.“Treaties can play the role of contracts between two or more parties, such as
an extradition treaty or a defense pact. Treaties can also be legislation to regulate a particular
aspect of international relations or form the constitutions of an international organization
Private International Laws of the country help in the following way:
• They help in determining the laws, foreign or domestic, to be used
in the case which arises out of a private legal relationship along
with the presence of some foreign material.
• It also helps in determining the maintainability of the case,
telling about which courts have jurisdiction to settle the
dispute.
5. BASIS AND DOCTRINE OF COMITY
The basis or Foundation of Private international laws arises out of the need
of internationally compatible legislations. It has also been suggested that
the Private International Laws are based on the Doctrine of Comity. The
doctrine of comity refers to mutual understanding between various states,
comity is nothing but the accepted rules which are mutually acceptable by
different states and apply the same with cooperation, giving ease to each
other.
The doctrine of comity is the legal principle which dictates that a jurisdiction
recognize and give effect to judicial decrees and decisions rendered in other
jurisdictions' unless to do so would offend its public policy.
6. One of the finest examples of recognition of comity is Section
11 of the Foreign Marriages Act, of 1969.
Through this Act, permission has been given to Indian diplomatic
officers and consular officers to conduct marriages of persons
(out of which should be an Indian Citizen) in a foreign land. It
also provides that no such marriage which is prohibited in that
particular country cannot be conducted.
As per the Joint Committee of parliament, this rule was enacted
to remove any problem of incoherency with International laws and
comity of nations. Doing so serves another purpose, as desired by
the parliament, marriages under this Act are more internationally
acceptable.
7. TRADITIONAL RULES
Before moving further, it is important to understand the
traditional rules of Private International Law:
1. Lex Loci Celebrationis : This rule governs the formal validity
the meaning of lex loci celebrationis is ‘Law of the place
where the marriage takes place’.
2. Lex Domicili : Lex Domicili governs the capacity and validity
two parties. Lex domicili, which means the law of the domicile,
at the time of death of a person also helps in the succession
of movable property.
3. Lex Situs : Lex situs help in governing the matters related to
movable property. Lex situs which means the law of the place,
not only helps in the succession of the movable property but
also helps in transfer of immovable property.
8. 4. Lex Fori
Lex Fori or Law of forum helps in the governance of the law of
procedure.
5. Lex Loci Deliciti
As the name suggests it means the law of the place where the damage
occurred, this rule concerns the commission of a tort. This is one of
the important traditional rules.
6. Proper Law of Contract
Contractibility or say the contracts between different parties regarding
different issues are concerned with applicable law also called proper
law of contract.
9. Recognition and Enforcement of
Foreign Judgements
Code of Civil Procedure 1908, talks about the
recognition of foreign judgements. It is present
in Section 13 and Section 44A therefore it is
necessary to analyse these sections. Apart from this,
it is necessary to know that Article 101 of the
Limitation Act, 1963 mentions that a suit on foreign
judgement should be filed within 3 years from the
judgement’s date.
10. Section 13, Code of Civil
Procedure
This section deals with foreign judgements and mentions the
instances where foreign judgements will not be conclusive. Foreign
judgements shall be conclusive in various instances with the
following exceptions:
• The foreign judgement will not be conclusive if the maintainability
is questionable when the judgement is given by a court which does
not have competent jurisdiction over the matter.
• The foreign judgement will not be conclusive in the case, the
decision of the court was not based on the merits of the case.
11. • If the case was undertaken and the decision was taken based either
on the misinterpretation or incorrect view of international law then
also the foreign judgement will not be conclusive.
• If it is found that proceedings did not consider the Indian laws
applicable in that particular case, then the foreign judgement will
not be considered conclusive.
• For a foreign judgement to be conclusive it should be made sure that
judgement does not go against the spirit of Natural Justice. In such
cases where the judgement goes against the Spirit of Natural Justice
then the judgement will not be considered as conclusive.
• The two other cases, where the judgement will not be considered as
conclusive, are first: if the judgement has been obtained by fraud,
and second: if the judgement has been given breaches any of the
present Indian laws
12. Section 44A , Code of Civil Procedure
Section 44A deals with the execution of judicial decrees
of courts of reciprocating territories. Before we
further delve into the section, it is important to
understand about the reciprocating territories.
Reciprocating territories are those countries or
territories outside India which have been considered
officially by a gazette as reciprocating territories for
the purpose of this section i.e 44A. The courts of these
territories whose decrease would be admissible are
called Superior Courts. The section apart from defining
the reciprocating territories also define the meaning of
Decrees: which is referred to any judicial order or
judgment by the superior courts, in very simple
language.
13. The key points of section 44A are as follows:
• Whenever a certified copy of a decree from
superior courts, established in the reciprocating
territory, is filed in the district court then
the same decree should be executed as if it had
been passed by the district court.
• Along with a certified copy of the decree, a
certificate which mentions the extent to which
satisfaction or adjustment of the decree has been
given. The certificate should be a conclusive
proof which mentions adjustment and satisfaction.
• While executing decrees as per the mentioned
procedure the court must not let it violate the
clauses mentioned under Section 13 of Code of
Civil Procedure, 1908.
14. Supreme Court Judgement and
Arbitration Conciliation Act.
Judgement
Judgements of the Supreme Courts and High courts play an important
role in giving a clear finishing and proper interpretation of various
laws. Similarly in this case too the supreme court has given certain
quality judgements regarding the issue of the recognition and
enforcement of foreign judgements. I will discuss one such important
issue enunciated by the Supreme Court in one of its judgements.
Relying on the ratio of the judgement of the case
of International Woollen Mills vs Standard Wool (UK) (2001 5
SCC 265) the Supreme Court in one of the recent judgements has
mentioned Section 13 Civil Procedure Code and Section 44A Civil
Procedure Code while deciding the case of Alcon Electronics
Private Limited vs Celem SA and another (2017 2 SCC 253). In
this case, the Supreme Court ruled out that the judgement of an
English Court, which was being enforced in India, is a
15. The Supreme Court noted down that in order to respect the principles
of comity of the nations, which is the foundation of Private
International Law, the court must admit/accept the judgement of the
English court which has decided the matter on the basis of merit
Even if the decision is an interlocutory order the judgement shall be
given due weightage, the only exception where such judgements cannot
be accepted is when the judgements are in violation of Section 13 of
Civil Procedure Code.
Therefore on this basis, the court considered the judgement to be
conclusive. Mentioning section 44A of the Civil Procedure Code, the
court also mentioned that execution of decrees of reciprocating
territories is permissible and England is a reciprocating territory,
which means that decrees passed by English Courts are admissible
according to section 44A (if decrees do not violate section 13 of
Civil Procedure Code).
16. Arbitration and Conciliation Act
The arbitration and Conciliation Act is based on the UNCITRAL model, this model
this model actually provides the lawmakers of various nations with a pattern using
pattern using which the lawmakers can legislate various laws regarding
regarding arbitration. The arbitration and Conciliation Act of 1986 was a much-
17. Conclusion
Private International law has become a necessity in this era of
Globalization. Nations are connected with one another. It is now
evident how nations work for economic prosperity through economic
cooperation.
In such pursuit of material wealth, it becomes very obvious that
there will be clashes between parties engaging in the contract, not
only in the contract but also in other legal issues that may arise.
For such issues, it becomes necessary to take the Help of Private
international law.
As discussed in various statutes of Indian Laws have taken into
consideration the need for the comity of the nations, which forms
the foundation basis of Private International Laws. Various
countries follow traditional rules, whereas few members of the
European Union follow Unified Private International Laws. there are
various benefits that arise out of the use of Unified Private
International Laws. The lawmakers and legislators should focus on
18. References
• Foreign Marriages Act, 1969
• The Limitation Act, 1963
• Arbitration and Conciliation Act of 1986
• International Woollen Mills vs Standard Wool (UK) (2001 5
SCC 265)
• Alcon Electronics Private Limited vs Celem SA and
another (2017 2 SCC 253)
