Theories of Private International Law

 THE 5 THEORIES OF PRIVATE INTERNATIONAL LAW

1. STATUTE THEORY

Bartolus De Saxoferrato

It was propounded by Bartolus in the 13th century

The issue started with a simple question- " When a person left the city-states of Italy and went to a foreign land, would the laws of Italian city-states apply to them or would the laws of the foreign land? To answer this, Bartolus divided the statutes into 3 parts:

* Personal Statutes or the Statuta Personalla

* Real Statutes or the Statuta Realla

* Mixed Statutes or the Statuta Mixta

The Personal Statutes are those statutes which are related to a person. Some examples include laws relating to marriage, adoption, movable property, maintenance, etc. These personal statutes are carried by the person wherever he goes and it is applicable everywhere he goes.

The Real Statutes are those statutes which relate to a place or thing. The real statute mainly revolves around laws relating to immovable property. Such laws can be applied only within the territory i.e. it is applicable where the property lies. 

Mixed Statutes deal with laws relating to contracts, agreements, torts, etc. Such laws are applicable wherever they are signed or performed. 

INTERNATIONAL THEORY

Fredrich Carl Von Savigny

It was propounded by Fredrich Von Savigny. He emphasised that the laws must be applied depending upon whichever country's law naturally connects to the facts of the case. This was called the Natural Seat Theory.

To determine which state has the Natural Seat, a few factors were laid out:

* The domicile of the person related to the case
* Place where the object related to the case is situated
* The place where the judicial act is done
* The place where the Tribunal sits 

TERRITORIAL THEORY

Ulrich Huber

It was propounded by Ulrich Huber and supported by Justice Dicey. This theory states that in any given situation, the court always applies the law of their country. The courts do not apply foreign law but if the parties to the case have any rights which they have acquired through foreign law, those rights would be considered.

For example: If a contract is drafted based on foreign law, the court does not take into account the foreign law but it recognises the rights of the parties acquired through that contract.

LOCAL LAW THEORY

Walter Wheeler Cook

It was propounded by Walter Wheeler Cook. This theory largely emphasises upon the precedents of the court. It states that the court must set up its own set of laws based on its earlier precedents and foreign law must nit be given importance over the local law

THE JUSTICE THEORY

It was propounded by Dr. Graveson. This theory emphasises that the ultimate motive of the law is to provide justice and in order to provide justice, we must take into account the legal precedents, morality, good conscience, equality and fair treatment.

THE CIVIL LAW - ORDER 1

 

ORDER 1
CIVIL PROCEDURE CODE

PARTIES

Any case, before proceeding to court, must be clear on who the parties to suit will be. The first question before filing a suit is who are the plaintiffs and who are the defendants? Can there be multiple plaintiffs and multiple defendants? To answer these questions, we are going to look into Order 1 of the Civil Procedure Code.

Order 1 states clearly about the joinder of parties i.e. who can be joined together as plaintiffs and defendants in a single case. Joining parties in a single suit provides various benefits such as 

* Prevent multiple suits

* Saves the court's time

* Allows representation in a suit

* Allows multiple parties in a single suit

* Keeps the suit open for class action cases 

RULES UNDER ORDER 1 OF THE CIVIL PROCEDURE CODE

RULE 1

JOINDER OF PLAINTIFFS

Multiple persons can be joined together as plaintiffs if 

* The right to relief arises from the same act

* The right to relief arises from the same transaction

* If there is a common question of a fact or law

RULE 2

POWER OF COURT TO ORDER SEPARATE TRIAL

When the court thinks that the joinder of plaintiffs may embarrass or delay the trial, the court has the power to order for separate trial.

RULE 3

JOINDER OF DEFENDANTS

Multiple persons can be joined together as defendants if 

* The right to relief arises from the same act

* The right to relief arises from the same transaction

* If there is a common question of a fact or law

RULE 4

POWER OF COURT TO GIVE JUDGEMENT

The court has the power to give judgment in favour of one or more plaintiffs or against one or more defendants

RULE 5

DEFENDANTS NEED NOT HAVE INTEREST IN THE RELIEF CLAIMED

It is not necessary for every defendant to have an interest in all the reliefs claimed in the suit against him.

RULE 6

SUIT ARISING FROM THE SAME CONTRACT

For relief claimed based on the same contract, promissory note, bill of exchange or hundis, the parties claiming relief can join together as plaintiffs for a single suit.

Relief arising from the same contract provides a ground for joinder of plaintiffs

RULE 7

PLAINTIFF IN DOUBT REGARDING WHO THE DEFENDANT IS

If the plaintiff is in doubt as to who to seek redress from and is unsure of who the defendant would be, he can join two or more defendants in the same suit. The question of who the actual defendant would be will be determined at a later stage. 

RULE 8

REPRESENTATIVE SUIT

One person may sue or defend on behalf of all having the same interest.

This helps to avoid a multiplicity of suits and prevent unnecessary delay in the decision of the court

Essential Conditions to file a representative suit include:

* A group of persons

* Having the same interest

* Must get permission from the court

* Notice regarding the suit must be sent to all parties

RULE 9

MISJOINDER AND NON-JOINDER

A mis-joinder is said to have occurred when a person who is neither a necessary party nor a proper party is joined as a party to suit.

A non-joinder is said to have occurred when a person who is a necessary party or a proper party is not joined as a party to suit.

A suit cannot be dismissed on the grounds of non-joinder or misjoinder of proper parties but can be dismissed on the grounds of non-joinder of necessary parties.

RULE 10

SUIT IN THE NAME OF WRONG PLAINTIFF

If the court finds that the wrong plaintiffs have been added to the suit, the court can, at any given stage of the proceedings, add, substitute or strike out the plaintiffs as the court sees fit.

RULE 11

CONDUCT OF SUIT

The court may give the conduct of a suit to whichever person it deems proper.

RULE 12

APPEARANCE OF PARTIES

The court allows for appearance of one of several plaintiffs or defendants on behalf of others provided they are permitted to do so by the others in writing and such writing is properly signed and filed in the court.

RULE 13

OBJECTION AS TO NON-JOINDER AND MISJOINDER

Any objections regarding non-joinder or misjoinder of parties must be made at the earliest possible opportunity.

RULES UNDER ORDER 1 OF THE CODE - TABULAR FORM

RULES	PROVISIONS
RULE 1	Who may be joined as plaintiffs
RULE 2	Power of Court to order separate trial.
RULE 3 RULE 3A	Who may be joined as defendants. Power to order separate trials where joinder of defendants may embarrass or delay trial
RULE 4	Court may give judgment for or against one or more of joint parties
RULE 5	Defendant need not be interested in all the relief claimed
RULE 6	Joinder of parties liable on same contract
RULE 7	When plaintiff in doubt from whom redress is to be sought
RULE 8 RULE 8A	One person may sue or defend on behalf of all in same interest Power of Court to permit a person or body of persons to present opinion or to take part in the proceedings
RULE 9	Mis-joinder and non-joinder
RULE 10 RULE 10A	Suit in name of wrong plaintiff Power of Court to request any pleader to address it
RULE 11	Conduct of suit
RULE 12	Appearance of one of several plaintiffs or defendants for others
RULE 13	Objections as to non-joinder or mis-joinder