JAMIA MILLIA ISLAMIA
Faculty of law
Project
RENVOI
Conflict of Laws
Submitted to: Dr. Alisha Khatun
Submitted by: Farsana Sadiq
Roll No. 15.
BA.LL. B (H.) (Self-finance) 10th Semester
Batch: 2017- 2022
ACKNOWLEDGEMENT
1
On the completion of my assignment topic “Renvoi”, I want to whole-heartedly express my
gratitude to Dr. Alisha Khatun, Guest Faculty, Faculty of Law, Jamia Millia Islamia (Central
University), for providing me with the opportunity to work on an important topic in the
subject of Conflict of Laws. I would like to extend my gratitude to ma’am’s guidance which
made it possible for me to work diligently. I would also like to thank all those who have
directly and indirectly guided me in writing this assignment.
Farsana Sadiq
INDEX
2
S.No. Contents Page No.
1. Table of Cases 4
2. Introduction 5
3. Kinds of Renvoi 6
4. Single Renvoi 6
5. Double Renvoi 7
6. Renvoi in case of Marriage 9
7. Impact of the Brussels IV: The European Union Regulation 10
on Succession
8. Advantages and Disadvantages of the Doctrine of Renvoi 11
9. Conclusion 13
10. Bibliography 14
3
TABLE OF CASES
Sr. No. Case Laws Footnote
1. In Re Johnson [I903], I Ch. 821, 831 4
2. Collier v. Rivaz, 2 CURT. Ecc. 855. 5, 14
3. In Re Askew, [1930] 2 Ch 259. 7
4. In Re Ross, [1930] 1 Ch 377. 9
5. In Re Annesley, [1926] Ch 692. 12
6. R v. Brentwood, [1969] 2 QB 956. 18
7. In Re The Duke of Wellington, [1947] Ch 506. 20
4
INTRODUCTION
Countries around the world follow distinct legal systems. It is common knowledge that
there is a lack of uniformity in laws and standards followed around the world. Professor
von Savigny, in his Treatise on the Conflict of Laws first outlined the scientific purpose
of the conflict of laws, as part of his push for a uniform and universal rule of the conflict
of laws.1 The same was iterated by Professor Lorenzen. 2
Private International law, or
Conflict of Laws, refers to the set of rules or laws used by a jurisdiction or a country to
determine a case or an issue over which two or more contradictory laws of countries seem
to have jurisdiction. It deals with cases having a foreign element.
The doctrine of renvoi is a vital aspect of Conflict of Laws. It is the procedure for solving
issues which arise out of distinction between connecting factors used by English law and
that of the law to which the English interfacing variable leads. 3 “Renvoi” is a French
word meaning “send back” or “return unopened”. The doctrine pays little regard to where
the case is truly overseen and goes ahead with a comparable law with which a
comparative outcome can be achieved. The “Convention of Renvoi” is the procedure by
which the Court embraces the principles of a foreign law as for any contention of law that
emerges. The word "renvoi" itself does not appear in either an English or American
judicial opinion prior to 1903.4 This is more remarkable when one takes into account the
fact that the English courts were called upon before the courts on the Continent to decide
a case in which the renvoi was presented. Such a case came before the English courts as
early as 1841.5 The earliest continental case arose about fifteen years later. The Doctrine
of Renvoi received its initial impetus on the Continent when the French Court of
Cassation adopted it in the Forgo Case, which was finally decided in 1882.
It is applied in circumstances based upon the law of domicile (lex domicile), the law of
the place where the act was done or the transaction was completed (lex loci actus), and
the law of the place where the property is situated (lex situs). This assignment will deal
with the kinds, advantages and disadvantages of the doctrine of Renvoi.
1
F C von Savigny, A Treatise on the Conflict of Laws, 70 (2nd edn, 1880).
2
E G Lorenzen, “Renvoi in the Conflict of Laws - Meaning of ‘The Law of a Country’” 27 Yale Law Journal
509, 519, 524 (1917-1918).
3
J.G. Collier, Conflict of laws, 21 (Cambridge University Press, Cambridge, 1987).
4
In re Johnson [I903], I Ch. 821, 83.1
5
Collier v. Rivaz, 2 CURT. Ecc. 855.
5
KINDS OF RENVOI
Courts resort to the Doctrine of Renvoi when they find that there is no space for use of
the internal law. It leads them to utilize and apply the apt and best possible kind of
Renvoi that is available based on the circumstance.
I. THE SINGLE RENVOI
The single renvoi applies when the rule of law of a country refers it to another foreign
country, but the conflict rules of the foreign country decide the issue in concern based on
the law of the primary country itself. This procedure is called remission or single renvoi. 6
Single Renvoi system is followed by countries including Spain, Italy, and Luxembourg.
This system refers to the rules of choice of law in another jurisdiction. When a dispute
develops in a jurisdiction such as Spain, Italy, or Luxembourg (for example, X), those
countries will assess whether their own domestic law applies or if another jurisdiction's
law applies (for example, Y). Where Y's regulations could potentially send the case back
to X (the original forum court), the court will accept the initial remission and apply its
own domestic laws.
The principle of single renvoi can be explained through the In Re Askew case.7 Under the
law, a child conceived while already being married to someone else is considered as an
illegitimate child. In this case, the father was a British national domiciled in Germany,
and as per English laws, his child was construed as an illegitimate child. However,
according to German law, the child is viewed to be legitimate. Considering that German
law acknowledged the doctrine of renvoi, the Court took into account the legitimacy of
the child.8
The principle of single renvoi can further be seen in the In Re Ross case9, which was with
regards to the case of a will of an English woman domiciled in Italy. She had land in
Italy, and versatile property both in Italy and England. According to English law, the will
was valid but it was considered to be invalid as per the Italian law as a large proportion of
6
Cheshire and north, Private International law, 60,61 (Butterworth & Co., London, 10th edn., 1979).
7
[1930] 2 Ch 259.
8
Atul M Setalvad, Conflict of laws, 44 (LexisNexis Butterworths Wadhwa, Nagpur, 1st edn., 2007).
9
[1930] 1 Ch 377.
6
the property wasn’t left for her child. The Court in this instance took into account the
English law as Italian law did not acknowledge the doctrine of Renvoi back then. 10
The Forgo case, was one of the initial cases on the doctrine of single renvoi which
revolved around succession law. Forgo, a Bavarian national, who had lived in France
since the age of 5. He left movable property in France but no relatives except for some
remote collateral relatives of his mother. These relatives could not get the property him
under French law as under French law the property, being ownerless, would go to the
French state. Although, under Bavarian law they could succeed. The French court would
determine the question by applying Bavarian law but the State argued that the Bavarian
courts would apply French law, and the French courts should do otherwise. The case was
decided in favour of the French state, and it is obvious that the reference here was to the
Bavarian rules of conflict.
II. THE DOUBLE RENVOI
Double renvoi is a type of renvoi whereby, equality of result is guaranteed by the forum
court. When no other pertinent law can be found to answer the question, the forum court
will use double renvoi. In this situation, the forum court acts as if it were a foreign court,
and it will decide the case as if it were a foreign court. Double renvoi or total renvoi is
also otherwise referred to as the “foreign courts doctrine". 11 Nations such as England and
France right now accept double renvoi. However, in this framework there can never be
more than two remissions.
For example, if a testator was a French national who stayed in England but was domiciled
in Spain and died and left moveable property in Spain, the court may need to consider
which legislative forum will apply to the property under succession laws. In this case,
Spain being the law of the forum, i.e., where the property is situated, applies the law of
the deceased's nationality, namely France and it applies French law. French law observes
the law of the deceased's habitual residence which is England. However, England
examines the domicile of the deceased which is Spain.
Considering that two transfers took place, i.e., from Spain to France and from France to
England, Spain operating under the Single Renvoi system will not take it back.
10
Supra note 8.
11
Double Renvoi, available at: http://definitions.uslegal.com/d/double-renvoi/, (Last visited on May 14, 2022).
7
Accordingly, the Spanish court being the law of the forum, will apply the law where it
was last left in the chain of referral i.e., with the law of England and Wales. It is
important to note that where both countries operate with either no renvoi system or single
renvoi systems, there is a potential problem.
The double renvoi doctrine can be understood through the In Re Annesley case.12 A
British woman domiciled in France, died and left behind a will. According to the English
choice of law rules, the succession of her property was to be governed by French law, as
it was the law of the place of her domicile at the time of her death. The will was valid
under English law but invalid under the French law as she had not left two-thirds of the
estate to her heirs. After the matter was shifted to the French court, they shifted it back to
England which was in turn again shifted back to the French court as the English laws
consider the laws based on the domicile of the deceased. The court held that the French
law was appropriate and connected the entire French law including French Conflict of
Laws guidelines under which the entire English law was relevant, as the law of her
nationality, and after that connected French law as the French court would "accept" the
renvoi.13
In Collier v. Rivaz,14 a British subject who died domiciled in Belgium made a will in
accordance with the English law. Sir Herbert Jenner, over the span of his judgment, said
"The court staying here chooses from the proof of the people talented in that law and
chooses as it would if sitting in Belgium". He chooses that the Belgium law just applies to
will as made by Belgium subjects and that the wills of the foreigners should under that
law be controlled by the law of their nationality. The will was in this way tried by English
law and held substantial.15
This theory of double or total renvoi or it might be known as the foreign court theory is
not quite the same as the theory of single or partial renvoi in light of the fact that, by
inquisitive how the foreign court would choose the case, it conceives the likelihood that
the foreign court may "accept the renvoi" and applies its own particular domestic law.
Renvoi in cases of Marriage
12
[1926] Ch 692.
13
Annesley case, available at: https://archive.org/stream/annesleycase00crai/annesleycase00crai_djvu.txt (Last
visited on May 14, 2022).
14
Supra note 5.
15
R.H Graveson, The conflict of laws, 49 (Sweet & Maxwell, London, 1948).
8
The general rule in Private International law governing capacity of parties to marriage is
Lex Domicilii i.e., law of the place where the parties to the marriage have domicile prior
to the marriage. Therefore, the capacity of a person domiciled in USA shall be governed
by the municipal law of that country. Where in common law system the rule of Lex
Domicilii is applied by the Forum in order to choose between possibly relevant foreign
laws involved in any lawsuit, the Civil law system applies the rule of Lex Patriae.
Therefore, countries where civil law system is followed the capacity of the parties to
marriage is governed by the law of nationality of the parties. 16 The rule of Lex Domicilii,
therefore, refer to the municipal law of a country where the person has domicile (of origin
or of choice), while Lex Patriae refers to the municipal law of the country of whose
nationality is possessed by the parties to the marriage. So long as there is no foreign
element in the marriage confusion as to the applicability of a legal system governing the
marriage does not arise. The moment one person marries another from diverse legal
background confusion as to the Choice of Law governing the validity of marriage arises.
The conflict of law rules of other countries is significantly different from Italian conflict
of law rules. Italy has restricted benefit of their law particularly to the nationals of Italy,
therefore, foreign nationals are left with no remedy under territorial system of law of
Italy.17 While in France a person can marry a French national even if he lacks capacity to
marry under the law of the country whose nationality he possesses, for, it is considered to
be enough by the French law if he is regarded capable to enter into marriage contract by
the French Civil Code. Italian conflict of law rule is said to be less clear in matter where
the person is not Italian national because, unlike French law, Italy does not have any
provision regarding, (i) Persons who are domiciled in Italy and wants to solemnize
marriage in Italy, & (ii) Person who wants to marry an Italian national.
Renvoi in case of determining validity of marriages can be seen through the case of R v.
Brentwood18. The husband, an Italian domiciled in Switzerland was married to a Swiss
wife. He obtained a divorce in Switzerland. The Swiss divorce was not however,
recognised under the Italian law. When he wished to remarry in England, the English
16
Gian Paulo Romano, “Multilateral Rule on Capacity to Marry and the Italian Constitution”, in Bonomi,
Andrea, volken, Paul, et.al (eds), Yearbook of Private International Law, Swiss Institute of Comparative Law
217 (2005)
17
Ibid.
18
[1969] 2 QB 956.
9
choice of law was to follow the Swiss law as the party was domiciled in Switzerland.
However, as under Swiss law the ability to wed was represented by the law of the
nationality, the English court thereby connected it to Italian law which rendered the
divorce to be invalid. The implication of this was that the party was incapable of
remarrying even in his domicile country. This form of renvoi, where the foreign law
demonstrated by the English conflict rules focuses to a third country, is known as
transmission, as unmistakable from reduction when the foreign law indicates back the
English law.19
The principal distinction amongst remission and transmission is that the foreign law sends
back the case to the main country while in transmission, the foreign law alludes the case
to the third country instead of the primary country.
Impact of the Brussels IV: The European Union Regulation on Succession
The EU Succession law, which took effect on August 17, 2015, aims to harmonise
succession laws across all EU member states by specifying the forum that applies to
succession. Ireland, the United Kingdom, and Denmark have chosen to opt out of this
law, but it will nevertheless have an impact on how these countries interact with signatory
states and non-signatory states.
In terms of the Doctrine of Renvoi, the rule aims to ensure that the doctrine is eliminated
in all EU Member States (excluding Ireland, the United Kingdom, and Denmark), with
the exception of third-party states. It also allows testators to have the law of their country
of origin apply to their whole estate. The regulation will only apply to deaths that occur
on or after August 17, 2015, but an individual may choose to have the law apply after that
date as well in their will.
19
A J E Jaffey, Introduction to the conflict of laws, 49 (Butterworths & Co., London, 1988).
10
ADVANTAGES AND DISADVANTAGES OF THE DOCTRINE OF RENVOI
The Doctrine of Renvoi has its advocates as well as its opponents. The following are the
advantages and disadvantages of the doctrine.
Advantages:
1. The use of foreign choice of law rules helps the court in avoiding a foreign
internal law that has no connection with the propositus.
2. It promotes the reasonable expectations of the parties.
3. It is generally stated that the principal reason for resorting to total renvoi is to
achieve uniformity in terms of the resolution of the case, irrespective of the
country in whose court the claim is transferred. It prevents the forum shopping.
Disadvantages:
1. Advocates of the doctrine of renvoi argue that the technique can be manipulated to
avoid applying an inappropriate foreign rule; however, the same object can be
achieved by the development of appropriate public policy. A study of the cases
indicates that the English court often concludes by subordinating its own choice of
law rules to those of another country. It is argued by critics that this would not
happen in cases where the foreign rule offended some particular rule of public
policy.
2. Application of domestic law of foreign country could defeat the reasonable
expectations of parties involved.
3. Critics argue that the application of the doctrine requires that the courts receive
detailed evidence of foreign law and that the judge is required to familiarise
himself with (a) the foreign internal law; (b) the relevant foreign choice of law
rules; and (c) the policy, if any, of the foreign law towards the doctrine of single
renvoi. The difficulty of the task is indicated by the terms of the judgment of
Wynne Parry J in In Re The Duke of Wellington,20 where the learned judge
found he was being asked to decide on the approach of Spanish law to renvoi
without the benefit of any clear prior ruling from the Supreme Court of Spain.
20
[1947] Ch 506.
11
However, this objection fails to take into account the fact that English judges have
to consider the contents of foreign law in many cases arising under the conflicts of
laws.
4. There are some practical difficulties involved in the application of renvoi. In a
world in which different connecting factors are used, then such a degree of
uniformity is probably unattainable. Moreover, it is arguable that such a degree of
uniformity is not achieved by the single renvoi doctrine; if both country A and
country B adopt connecting factors of domicile and nationality respectively and
then both adopt the partial renvoi doctrine, then the result will differ according to
where the case is litigated. In respect of the total renvoi technique, while, in
principle it should produce uniformity of decisions, it can, in practice, be applied
only by one country because, if the lex causae were also to apply to it, then there
would be no way out of the revolving door.
5. Another difficulty is when foreign law refers to nationality; easy for unitary states,
but problematic for federal states.
12
CONCLUSION
The Doctrine of Renvoi applies to marriage and to cases including title to movable and
immovable property. In the context of both tort and contract, the renvoi doctrine does not
promote either certainty or uniformity in solving a conflict of laws problem. It fails to
promote certainty and uniformity because once the foreign law is proven, harmony of
solutions is only achievable in a practical sense if choice of law rules of the foreign law
area rejects a renvoi from the forum court.
There are such diverse approaches to renvoi across the conflict of laws of different
countries; therefore, uncertainty of outcome is the inevitable consequence of the
universally uneven approach to renvoi and, in some legal systems, a complete absence of
recognition for the doctrine as part of the jurisprudence.
The renvoi doctrine as a general rule of the conflict of laws cannot promote decisional
harmony. It cannot do so because it is fundamentally unstable and requires various
adjuncts to operate at all. It requires firstly the guidance of expert evidence of the content
of foreign law and of its application, and secondly the exercise of judicial discretion to
apply the foreign law consistently with the proof of that foreign law as a fact. Both of
these elements defy prediction. However, having regard to the increase in the
development of law as an academic discipline since 1841, it cannot be said that the
obtaining of evidence of foreign law represents a practical obstacle.
The Doctrine of Renvoi despite its difficulties helps promote the reasonable expectations
of the parties involved and prevents forum shopping. The idea behind the doctrine of
Renvoi is that the same law is applied to achieve the same outcome regardless of where
the case is actually dealt with and that’s what it aims at.
13
BIBLIOGRAPHY
Books Cited
1. A J E Jaffey, Introduction to the conflict of laws, 49 (Butterworths & Co., London,
1988).
2. Atul M Setalvad, Conflict of laws, 44 (LexisNexis Butterworths Wadhwa, Nagpur,
1st edn., 2007).
3. Cheshire and north, Private International law, 60,61 (Butterworth & Co., London,
10th edn., 1979).
4. F C von Savigny, A Treatise on the Conflict of Laws, 70 (2nd edn, 1880).
5. J.G. Collier, Conflict of laws, 21 (Cambridge University Press, Cambridge, 1987).
6. R.H Graveson, The conflict of laws, 49 (Sweet & Maxwell, London, 1948).
Journals Referred
1. E G Lorenzen, “Renvoi in the Conflict of Laws - Meaning of ‘The Law of a
Country’” 27 Yale Law Journal 509, 519, 524 (1917-1918).
2. Gian Paulo Romano, “Multilateral Rule on Capacity to Marry and the Italian
Constitution”, in Bonomi, Andrea, volken, Paul, et.al (eds), Yearbook of Private
International Law, Swiss Institute of Comparative Law 217 (2005)
Internet Sources
1. Annesley case, available at:
https://archive.org/stream/annesleycase00crai/annesleycase00crai_djvu.txt
(Last visited on May 14, 2022).
2. Double Renvoi, available at: http://definitions.uslegal.com/d/double-renvoi/
(Last visited on May 14, 2022).
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