Conflict of Laws—State Practice of Bangladesh

Abstract

During a negotiation for a transaction between individuals/businesses of two different nations, selection of proper law and forum for settlement of disputes arising out of the transaction is not an easy task to accomplish. Further, it always haunts the legal practitioners when they are asked to bring a proceeding in a local court against a foreign party. The haunting aspect is that the court of foreign jurisdiction, where the judgment may be enforced against the foreign defendant, may refuse to recognize the judgment. The legal principles are not so solidified in this area of law. This study of conflict of laws tends to explain the unsettled aspect of it in the context of the State of Bangladesh. Bangladesh (formerly East Pakistan, prior to its independence) has been experiencing the dilemma of conflict of laws. A number of statutes address the issue of choice of forum, proper law and enforcement of foreign judgment. Disputes have generated several legal decisions focusing on these issues. Still the jurisprudence is not settled with regard to the interpretation of foreign jurisdiction and proper law clauses in a contract. A formidable challenge is thrown by the rules on civil procedure of Bangladesh. The law requires that a foreign judgment, to be enforced in Bangladesh, ought to be issued by a legal system the subject law of which is not in conflict with the laws of Bangladesh. This single criterion may allow the courts of Bangladesh not to recognize the judgments of many foreign courts regarding matrimonial, adoption, corporate, property disputes etc. This study attempts to revisit the present jurisprudence of Bangladesh in respect of foreign jurisdiction and proper law clauses in a contract and the enforcement of foreign judgment in Bangladesh, especially in the light of this clause in the Civil Procedure law of Bangladesh.