Indian Private International Law

Erscheinungsjahr 2021
ISBN: 978-1-5099-3818-6
Verlag: Bloomsbury Academic

Buch, Englisch, 392 Seiten, Hardback, Format (B × H): 171 mm x 248 mm, Gewicht: 834 g

This book provides an authoritative account of the evolution and application of private international law principles in India in civil commercial and family matters. Through a structured evaluation of the legislative and judicial decisions, the authors examine the private international law in the Republic and whether it conforms to international standards and best practices as adopted in major jurisdictions such as the European Union, the United Kingdom, the United States, India's BRICS partners - Brazil, Russia, China and South Africa and other common law systems such as Australia, Canada, New Zealand, and Nepal.

Divided into 13 chapters, the book provides a contextualised understanding of legal transformation on key aspects of the Indian conflict-of-law rules on jurisdiction, applicable law and the recognition and enforcement of foreign judgments or arbitral awards. Particularly fascinating in this regard is the discussion and focus on both traditional and contemporary areas of private international law, including marriage, divorce, contractual concerns, the fourth industrial revolution, product liability, e-commerce, intellectual property, child custody, surrogacy and the complicated interface of 'Sharia' in the conflict-of-law framework.

The book deliberates the nuanced perspective of endorsing the Hague Conference on Private International Law instruments favouring enhanced uniformity and predictability in matters of choice of court, applicable law and the recognition and enforcement of foreign judgments.

The book's international and comparative focus makes it eminently resourceful for legislators, the judges of Indian courts and other interested parties such as lawyers and litigants when they are confronted with cross-border disputes that involve an examination of India's private international law. The book also provides a comprehensive understanding of Indian private international law, which will be useful for academics and researchers looking for an in-depth discussion on the subject.

Autoren/Hrsg.

Jolly, Stellina

Khanderia, Saloni

Reyes, Anselmo

Beaumont, Paul

Fachgebiete

• Rechtswissenschaften Ausländisches Recht Asien (inkl. Türkei und Naher Osten)
• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht Internationales Privatrecht

Inhaltsverzeichnis

PART I
GENERAL PRINCIPLES
1. Introduction
2. Basic Concepts and Status of Private International Law in India

I. Introduction

II. Overview of Indian Legal Framework

III. Conceptual Foundations of Private International Law

IV. Genesis of Private International Law in India

V. Operationalisation of Private International Law: Classic Concepts

VI. Conclusion

3. Domicile, Nationality, and Residence

I. Introduction

II. Domicile

III. Nationality and Residence

IV. Ascertaining Domicile under Indian Private International Law Rules

V. Conclusion

4. Proving, Pleading, and Excluding the Foreign Laws

I. Introduction

II. Substantive and Procedural Law

III. Pleading Foreign Law

IV. Exclusion of Foreign Law
V. Overriding Mandatory Norms and Public Policy (Ordre Public)

VI. Conclusion

PART II
JURISDICTION
5. Jurisdiction: Which Court will Adjudicate a Matter?

I. Introduction

II. Persons who may File a Suit before an Indian Court

III. Jurisdiction in personam

IV. Jurisdiction in Actions in rem

V. Reflections on Indian Law: Some Insights based on Global Trends

VI. Conclusion 5

PART III
FAMILY LAW
6. Private International Law Practice in Marriage

I. Introduction

II. Indian Legislative Framework on Marriage and its Religious Base

III. Same-Sex Marriage: Legal Analysis of Private International Law Principles

IV. Hague Conference on Private International Law and Matrimonial Conventions
V. Conclusion

7. Private International Practice in Divorce and Related Matters

I. Introduction

II. Conflict of Laws Issues in Divorce

III. Recognition of Foreign Divorce in India

IV. Ancillary Financial Orders and Nullity of Marriage

V. Annulment and Nullity of Marriages

VI. Conclusion

8. Private International Law Practice and Children: Issues of Custody and Abduction

I. Introduction

II. Jurisprudence on the Well-Being of the Child: An Interplay of Public and Private International Law

III. Indian Legal Framework Relating to Intercountry Child Abduction

IV. Recognition of Foreign Custody Orders

V. Conclusion

9. Cross-Border Surrogacy and Private International Law

I. Introduction

II. Private International Law Issues in Cross Border Surrogacy

III. Legal Status of Commercial Surrogacy in India

IV. Judicial Statements on Surrogacy: Public Policy Narratives

V. Legal Initiatives for Harmonisation and India's Role

VI. Conclusion

PART IV
LAW OF OBLIGATIONS
10. The Applicable Law in Contractual Obligations

I. Introduction

II. Identification of the Applicable Law in Contractual Obligations in India

III. Scope of the Proper Law of the Contract
IV. Reflections on Indian Law: Some Insights based on Global Trends

V. Conclusion

11. The Applicable Law in Non-Contractual Obligations
I. Introduction

II. Identification of Applicable Law in Non-Contractual Obligations in India

III. Reflections on Indian Law: Some Insights Based on Global Trends
IV. Conclusion

PART V
RECOGNITION AND ENFORCEMENT
12. The Recognition and Enforcement of Foreign Judgments

I. Introduction

II. The Recognition and Enforcement of Foreign Judgments

III. Determining Eligibility of a Foreign Judgment

IV. The Disqualification of a Foreign Judgment from Recognition or Enforcement

V. Reflections on Indian Law: Some Insights Based on Global Trends
VI. Conclusion

13. The Recognition and Enforcement of Foreign Arbitral Awards

I. Introduction

II. The Law on the Recognition and Enforcement of Foreign Arbitral Awards

III. The Execution of Foreign Arbitral Awards in India

IV. Disqualification of a Foreign Arbitral Award from Recognition or Enforcement in India

V. Conclusion

PART VI
FINAL REMARKS
14. Looking Forward

Über Autor(innen)

Khanderia, Saloni
Saloni Khanderia is Alexander von Humboldt Fellow (Experienced Researcher) at the Chair for Civil Law, International Private Law and Comparative Law, Ludwig Maximilian University, Munich, Germany. She is also Professor (full-time) at the Jindal Global Law School, OP Jindal Global University, Sonipat, India. In addition, she serves as Visiting Associate Professor at the Faculty of Law, University of Johannesburg, South Africa, where she teaches modules on Indian private international law.

Jolly, Stellina
Stellina Jolly is Senior Associate Professor at the Faculty of Legal Studies, South Asian University (SAU), India. She is a Visiting Senior Research Associate at the Centre for Emerging Countries in Private International Law at the University of Johannesburg, South Africa, a Fulbright Scholar with the University of San Francisco, USA, and a recipient of the International Visitors Leadership Program (IVLP). She is also a Visiting Professor at the Maharashtra National Law University, Mumbai, India.

Stellina Jolly is Senior Assistant Professor at the Faculty of Legal Studies, South Asian University, Delhi, India.

Saloni Khanderia is Professor of Law at the Jindal Global Law School, Sonipat, India and Alexander von Humboldt Fellow at Ludwig Maximilian University, Munich, Germany.