Tuesday, 27 January 2015

The Significance Of Renvoi To Private International Law Particularly As Regards Partial And Total Renvoi

Conflict of Law Group 4
By: Olorunfemi Eyitayo Temilolu, Oladapo Olayemi, Liman Ayodele Bilikis and Joseph Naomi Ojunugwa

            The law of every state includes the domestic of influential or internal law which applies to local situation, and a body of law which is applicable in a situation involving a foreign element. The latter is commonly referred to as the conflict of law rules, where a foreign state is the place of domicile or the place where the contract was made or lex situs of the property. The conflict of laws rule of the forum may refer the “law” of the foreign state or its conflict of law rules. If it refers to its conflict of law rules then the court of the forum has accepted what is known as the doctrine of Renvoi.

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Definition of Renvoi

Renvoi is the legal doctrine that applies when there is a conflict of laws in a particular court case.

The term renvoi is gotten from the French and literally means to “send back or return unopened” where the significant elements in the case are divided between two countries e.g. France and England, such a case is the case of conflict of law for any court litigating. For example, when a British citizen living in France dies intestate the problem of renvoi arises whenever the rule of the conflicts of law of France refers to the law of foreign country, but the conflict rule of the law of the foreign country would have referred the question to the “law” of the first country or the law of some 3rd country.

Where a matter before a court has an international element, the court will initially apply Private international law rules of the jurisdiction it is located to decide which law applies. If A’s law is the applicable law, the court will apply A’s domestic law. However, if the applicable law is that of another jurisdiction (B) the court must decide whether to apply B’s domestic law or B’s including B’s own PIL rules. If the court decides on B’s Private international Law rules, and B’s Private International Law rules refer back to the law of A or refers to a 3rd jurisdiction this reference is called Renvoi

The doctrine Renvoi was given initial impetus in the Forgo V. Administration de domain which was decided by the French cour de cassation. It regards the estate of a Bavarian national who had settled in France acquiring a legal domicile there and then died intestate in france leaving moveable properties there. The French court referred the question of the distribution of his intestate estate to Bavarian Law. It was found that under the Bavarian law of succession to moveable property (intestate state) was governed by the law of the place (lex Situs). The French accepted this remission to its law and applied the French internal law.

            In the case of Estate of fuld, decd (NO 3) v. Hartley 1966 WLR 71. The judge found that the deceased domiciled in Germany and accordingly referred the matter to German law whose conflict rule referred this to the law of nationality that is Ontario Canada. The will was formerly valid under the Ontario domestic or internal law but not under German internal law. However, the judge for the transmission to the law of Ontario including its conflict rules. Fortunately, German law accepted backward reference and therefore German conflicts rules becomes inoperative in the end, the judge pronounced against the will.


     Suppose an English forum is faced with a question about the capacity to marry of a French national who is domiciled in Italy. It would refer to the Italian domiciliary law. An Italian court, dealing with the same case, would refer to the French national law. If Italian law and French law happen to differ on the particular capacity in dispute, the results would be different. Should it just be accepted as a fact of legal life that the result of a case will depend on

the place of litigation and leave lawyers to take it on board when advising their clients – just an international dimension to a fact already known? In addition, suppose an English court has to consider the case of X, an Englishman, who dies domiciled in Arcadia, and a question arises as to the beneficial distribution of his movable property.         

1.       Partial or single, imperfect, receptive or continental renvoi:  The doctrine of partial renvoi involves a reference to the conflicts rules of the chosen system, which results in either transmission to another legal system or remission to the forum’s law. So that, if we refer to the example concerning Arcadia, then the meaning of the law of Arcadia is the law of Arcadia, including its conflict rules but minus its conflict rules applying renvoi, if such exist. So, in relation to the case of the intestate dying domiciled in Arcadia, if the relevant Arcadian conflicts rule referred to English law as the law of the nationality, then, if the English court ‘accepts’ the remission and decides the case in accordance with English law, this would be an example of single or partial renvoi. Thus in Casdagli V. Casdagli, held that “we are ready to apply the law of nationality closer to remit the, matter to us, we would apply the same law as would be applied to our subject.   Single renvoi has however being expressly repudiated by English court in Re askew (1930) 2ch 259. The operation of single renvoi can involve the reference of the issue to a third system (that is, transmission). This was the case in the original example of the Italian domiciled French national where Italian conflict law would refer to the lex patriae – French law. This is an example of transmission. Now, an English court could go along with this if it wished, though the consequences of doing so, while it would produce consistency between the decision of the English court and the Italian court in this case, would not produce any overall consistency, as we would just be substituting one system of conflict law for should.

2.       Total or double Renvoi or foreign court doctrine:  In this scenario the forum court considers that it is sitting as the foreign court and would decide the matter as the foreign court would. It involves not just account of the conflict rules of the lex causae but also its renvoi doctrine. Presently only English court’s uses this approach. Thus in the above scenario total renvoi would do the following:

A)    The English court would determine the lex causae. Thus in  the above example the English court would refer his marital capacity Italian law his lex domicili

B)    The English court then applies court then applies the conflict rules of the lex causae. If the above scenario, it would find that an Italian court could refer back to English law as lex patriae

C)    As English law of conflict also refers to Italian law, to avoid toing and froing the English court would look to Italian law to see whether they would accept renvoi. If they would, the English court would accept English domestic law.

         It was first recognized in English court in Re Annesly per russle J. (1926)1CH 692 An English woman left a will according to English law she died domiciled in france but according to French law, she had not acquired a French domicile because of failure to comply with reg formalities. The testamentary dispositons were valid in English law but invalid by French law because she had failed to leave 2/3rd of her property to her children. It was that French law would apply because

a)      The domicile of the deceased would be determined by English law, the deceased was domiciled in france

b)      But French law would refer to the UK patriae

c)      The rules of English private international law would refer to French law.

d)     The French legal system accepts the doctrine of single revoi thus the French judge would have accepted the remission. thus the  English court should decide as the French court would.

                        Another example is the case of Re Ross(1930) 1 CH 376 Lukmore J. where an English woman died domicile in Italy leaving the will of moveable property in English and Italy immovable property in Italy. By English law succession is governed by Italian law as lex domicilii the will was partly invalid by Italian law. The Italian choice of law under being founded on nationality would have referred to English law. Luxmore J, concluded that the Italian court would reject renvoi and simply apply English law.

                  In Nelson V. Over sea projects corporation of Victoria ltd. The high court of Australia law of the 3 possible solution (single, rejecting the renvoi & double renvoi) he majority adopted the double renvoi approach without committing itself to do same in similar cases.  In Collier v. Rivaz: A person named Ryan, a British citizen died domiciled in Belgium. He left certain testamentary papers executed in accordance with the requirement of Belgian local law. The court of England decided to decide the matter as if it were sited in Belgium. The judge sir I.T Jenner,  on proof that by Belgium law the validity of will made by foreigners not legally domicile in Belgium was governed by the law of their own country. He stated that “the court sitting here to determine it must consider itself sitting in Belgium under the particular circumstance of this case.


It is somewhat instructive to observe that the English doctrine of renvoi has hitherto been restricted in its practical application, to questions of formal and intrinsic validity of will, to issues of intestate successions to movables and (as often claimed) to questions of recognition of foreign divorce decrees. According to Cheshire, in the countless cases dealing with such matter, as contracts, insurance, sales of movable gifts inter vivo or mortis causae, mortgages, negotiable instruments, partnership, dissolution of foreign Company and so on, the English courts. Renvoi has been employed in cases

concerning the formal validity of wills, when referred to the law of a foreign country, have always applied the internal law of that country as in Collier v. Rivaz. The doctrine of renvoi has been used to legitimate an adulterine child, which would not have been possible under English law at the time. In the sphere of family law, there is some authority for the view that renvoi applies to formal validity of marriage and it has, in the past, been employed in questions of capacity to marry, although subsequent changes make this a precedent of limited value. The doctrine of renvoi is not applied in the area of commercial law; a stipulation that a contract is to be governed by the law of Arcadia is normally taken as a reference to the internal law of Arcadia.




                        Not surprisingly, the doctrine of renvoi has it advocates and opponents. Its advocates argue that by resorting to foreign choice of law rules, the court avoids a foreign internal law that has no connection with the propositus.

            Secondly, it is argued that it promotes the reasonable expectation of the parties. It might be argued that this was the case in Re Annesly. However was not the case in Re O’Keefe.

                        Thirdly, it is argued that renvoi produces a degree of uniformity of the decision, terms of the governing law at least, in cases where English choice of law rules put the premium in this, that is, where the lex situs is applied on the basis of effectiveness. Moreover, it is arguable that such degree of uniformity is not achieved by the single renvoi doctrine. Against this, it must be observed that, 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 it, then there would be no way out of the revolving door. The experience since 1945 is that uniformity of decision making is more likely to be achieved by the implementing of internationally agreed conventions.

                        Advocates of doctrine of renvoi argue that the technique can be manipulated to avoid applying an inappropriate public policy rules. Indeed, in the earliest case of Colier v. Rivaz , its arguable that the learned judge was more concerned with the public policy of seeking uphold testamentary dispositions that to formulate any precise theory of Renvoi.


                        It has been argued that the study of the cases indicate that English court concludes by subordinating its own choice of law rules to those of another country. Against this, however, it can be argued that this would not happen in those case where the foreign rule offended some particular rule of public policy.

                        Secondly, its opponents argued that the application of the doctrine required to familiarise himself with

a)      the foreign internal law

b)      the relevant choice of law rules

c)      The policy, if any of the foreign law towards the doctrine law towards the of single renvoi. This limitation of the doctrine of renvoi is that it normally involves calling detailed expert evidence as to the state of foreign law; normally, parties will seek to avoid such a course.

        Thirdly, the opponents of renvoi argued that having regard to the fact that nationality is the connecting factor most connecting factor most commonly employed in the civil law world, the English courts out itself in a position of being unduly influenced by nationality when there is no concept of English nationality having regard to the states of U.K.


                        As a purely practical it would seem that a court should not undertake the onerous task of trying to ascertain how a foreign court would decide the question, unless the situation is an exceptional one and the advantages of doing so clearly outweigh the disadvantages. In most situations, the balance of convenience surely lies in interpreting the reference to foreign law to mean its domestic rules. Although the doctrine of renvoi was favoured by Westlake and dicey, the great majority of writers, both English and foreign, are opposed to it. Lorenzen said: ‘notwithstanding the great authority of Westlake and dicey, it may reasonably be hoped that, when the doctrine with all its consequences is squarely presented to the higher English court, they will not hesitate to reject the decision of the courts that have lent colour to renvoi in English law”. There is no case which prevents the court of Appeal (still less the House of Lords) from reviewing the whole problem, and it is submitted that such a review is long overdue.


           Substance and procedure in multistate trot litigation: Mary Keyes

           Renvoi and presumption about foreign law: Martin Davies 

           Evidence Act 2011 CAP E.14

           Themes on the conflicts of law: Prof I.O Agbede.

           Conflicts of laws: John O’Brien. Second edition.

Wednesday, 9 January 2013

The Concept Of Characterisation And The Problems Associated With Qualification/Classification

Conflict of Law Group 3

By: Adesoye Ibukunoluwa, Bolomope Bashirat Ifeoluwa, Sowunmi Temitope and Ogundoye Gbenga


Conflict of laws otherwise known as Private International law is that part of municipal law of the state which directs its courts and administrative agencies when confronted with legal problems involving a foreign element to determine whether or not to apply a foreign law or laws. It is mainly concerned with one or more of the following questions;

      1) Choice of jurisdiction

      2) Choice of law

      3) Recognition and enforcement of foreign judgment 

The problem of conflict of law though most of the time is often considered with how to solve a case involving a foreign element, also has an internal scope. Nowhere is this more apparent than in Nigeria.

Nigeria practices a federal system of government with its separate federal and state laws. The country also practices a dual system of court and there is multiplicity of laws within the state. Therefore, internal conflicts of law are inevitable.

       However in any conflict of law case, one of the first things the court must do is to categorize the legal question under a particular legal heading. This process called characterization (also known as classification by English writers and qualification by French writers) presents a very knotty issue in conflicts of law.

       In ASHIRU V BENSON & ANOR (1967) N.M.L.R pg 363, the plaintiff, dependant of a victim of an automobile accident which occurred in Western Nigeria successfully brought an action under the Federal Fatal Accident in Lagos High Court against the defendants. The defense contended that an action could not lie under the Lagos statute where the injury and death occurs in Western Nigeria. The action succeeded.

The court in this case notwithstanding the criminal ramifications of the matter in question, characterized the matter as tort and subsequently laid down the conflict rule that a foreign cause of action in tort has to fit into the domestic category of tort.



Characterization refers to the allocation question raised by factual situation before the court to its correct legal category and its object is to reveal the relevant rule or rules for the choice of law. It deals with the process of assigning a factual situation to a proper legal category. In those cases where a different result would be achieved depending on which of several possibly relevant laws is applied, characterization reveals the relevant rule for the choice of law. Thus until the judge has ascertained the true basis, that is, characterize the plaintiff’s claim he cannot make any pronouncement for he would not know the rule or choice of law to be applied. This issue of characterization has been regarded by many continental and some English and American writers as a problem fundamental to the conflict of laws. It was discovered independently and almost simultaneously by the German jurist Kahn and the French jurist Bartin at the end of the 19th Century and was introduced to American lawyers by Lorenzen in 1920 and to English lawyers by Beckett in 1934.

In majority of cases, it is obvious that the facts must be subsumed under a particular legal category that a particular conflict rule is available and the connecting factor indicated by that conflict is unambiguous. In fact, the categorization may be so obvious as to be automatic. For example, a buyer’s claim against the seller that the thing he bought does not work as it supposed to, is so obviously a contractual issue that any court or lawyer  dealing with it would not even advert to the classification process before turning to the law of contract to seek the solution. But if the malfunction causes injury or damage to the property, or if the complainant is not the buyer of the product but the user of it, either the initial characterization has to be amended in some way or the situation seen as something else entirely –a tort perhaps or the subject of statutory action. Thus, characterisation sometimes and most of the times is not obvious. Even if the forum and the foreign country have the same conflict rule and interpret the connecting factor in the same way, they may still reach different results because they characterize the question in different ways. For instance, the forum may regard the question as one of succession, while the foreign law may regard the same question as one of matrimonial property.

IN OGDEN VS OGDEN (1908) PN6, a French man under the age of 21 marries an English woman in England without obtaining the consent of his parent as required by French law. The French and English conflict rules agree that the formalities of marriage are governed by the LEX LOCI CELEBRATIONIS (English Law) and also that the husband must have capacity to marry by his personal law (FRENCH). But is the issue in the case one of formalities (in which case the French rule will apply and the marriage will be void for want of capacity)? Or is the French rule to be characterized as one dealing with formalities (and so inapplicable) or with capacity)

A classic problem of characterization came before the Appeal Court in Algiers in ANTON VS BARTOLA (1891) Clunet 1171. The husband and wife were domiciled in Malta at the time of their marriage. Subsequently, they settled in France and the husband bought land there. On his death the wife claimed a life interest in the French land. French and Maltese law had the same choice of law rules – succession to immovables was governed by the LEX SITUS while matrimonial property rights were matters for the LEX DOMICILI at the time of marriage. However, French Law classified the issue as one of succession whereas Maltese law saw it as matrimonial property. In the event the court applied Maltese law.



The court is required to analyze the pleadings prepared by the parties and to assign each component element to the most appropriate judicial concept or category. The rules of any given system of law are arranged under different categories, addressing procedure, status, contract, tort, divorce, nullity, etc. For each category, there is one or more choice of law rule(s). Hence, for example all questions as to the status of a person before a court, viz an infant or adult, legitimate, legitimated or illegitimate, married or not, mentally incapacitated or not, bankrupt or not, etc. will all be governed by the person’s personal law namely the law of nationality (THE LEX PATRIAE) or habitual residence in a civil law state, or the law of domicile (THE LEX DOMINILII) in a common law state.

Characterizing laws as either procedural or substantive is necessary, but this part of the process can be abused by the forum count to maximize the use of the local law.

However, the generality of the characterization process is no, and cannot be a wholly scientific process. It is always a matter of interpretation. For example, if A who is a national of Arcadia, dies having made a local will transferring land situated in Mongolia to C who is domiciled in Bethpage, how is the issue to be classified? One might say that any rights that C might have are vested by the will that was made in Arcadia (i.e. THE LEX LOCI ACTUS). Equally, the right to succeed to title might be an aspect of C’s status as the oldest surviving male heir under Bethphagean law (THE LEX LOCI DOMICILLI).Or it may be a matter for the law of Mongolia since all matters of title to land must be adjusted by the LEX SITUS, as the law of the place where the land is situated. Thus, completely different judgments might result depending on how the forum court characterizes the action. To solve this dilemma SAVIGNY (1779 – 1861) proposed that it was always necessary for the court to find the ‘natural seat’ or ‘center of gravity’ for the case by identifying the largest cluster of “connecting factors” to a particular legal system. If all courts adopted such an international outlook, he reasoned, this would eliminate forum shopping[1] by producing the same choice of law no matter where the case was begun. But unfortunately the solution has not yielded the desired result. Forum shopping remains a problem, and neither legislators nor judges have been able to agree on characterization issues, producing classifications that extend rather than reduce international divergences. In an attempt to avoid obvious unjust results in particular cases, some judges therefore created a number of public policy exceptions to justify decisions.








i.   The first problem is Renvoi[2], determining whether the question falls naturally within this or that judicial category.

ii.  The second problem is the interpretation of what the connecting factor is. Connecting factor could be given different meaning in different countries. Thus, what constitute a domicile in Nigeria may not so constitute in for example, Italy.

iii. The third problem is characterization itself i.e. to identify the department of law under which some particular legal question fall in order to determine the rule of law to apply.

  Although various compromise solutions have been advocated, the principal contenders are characterization by the LEX FORI and LEX CAUSAE. Another, the analytical jurisprudence and comparative law approach is also discussed.


  Writers such as Khan and Bartin believed that such characterization should be governed by the law of the forum. That is, where a judge is faced with the situation, the judge should characterize the lex fori i.e. domestic law and the lex (causae) and apply the lex fori that is nearest in equivalent to the lex causae. Khan and Batin believe that characterization must be done in terms of law and not in terms of issues. They assert that the forum should characterize rules of foreign law in accordance with the nearest equivalent in its own domestic law. In Ogden V Ogden (1909) P.46, the court characterized by the lex fori The argument in favor of this view is that if foreign law were to be applied, LEX FORI would lose control over the application of its own conflict rules and will lose power.

  However, LEX FORI presents the following problems,

A.    Arguing by analogy from a rule of domestic law to that of foreign law can be equated to engaging in an objectionable mechanical jurisprudence resulting in the forum seriously distorting the foreign law and applying it in cases where it need not be applied and vice-versa. In future it may result in a case where the law to be applied is neither that of the forum, the foreign law nor that of any other country.

B.     There is no solution for cases where there is no close analogy to the foreign law or any institution in the domestic law of the forum.


This means that where a judge is faced with a case, he should apply the foreign law which governs the question. Writers such as WOLFF, DESPAGNET believe that characterization must be governed by the appropriate foreign law (LEX CAUSAE). WOLFF, a strong advocate of this school of thought is of the view that every legal rule takes its characterization from the legal system to which it belongs. In RE-MALDONADS (1954), the English court of appeal was faced with the task of deciding whether the Spanish government’s claim to the movables in England of a Spanish intestate who died without a next of kin was a right of succession (in which the Spanish government was entitled to the movable) or JUS REGALE (in which the English crown was entitled). The court held that this question must be decided in accordance with Spanish law with the result being that the Spanish government was entitled.

  However, this view presents the following problem;

A.    It is a circular argument to say that foreign law governs the process of characterization  before the process of characterization has led to the selection of foreign law

B.     In cases where there are two applicable foreign laws, which one would be applied and what would be the basis of the forum adopting the characterization of one over the other.


Writers such as Rabd believe that characterization should be governed by the rules of analytical jurisprudence and comparative law. That is, the judge should use the scope of the law to determine and compare the law of the countries involved and choose the one which will dispense justice more fairly. The argument in favor of this approach is that judicial technique in conflict cases must be more international and less insular than in domestic cases.

  The arguments against this approach are as follow,                               

1.      There are very few principles of analytical jurisprudence and comparative law that are of universal application. As KAHN-FREUND rightly opined, international agreement on analytical concept is a utopia.

2.      While the study of comparative law may reveal differences between domestic laws, it is hardly capable of resolving them. For example, comparative law may reveal that parental consent to marry may sometimes affect formalities or the capacity to marry. But how does it determine how these matters may be characterized

However, solving characterisation problems is not confined to the above approaches. There are alternative approaches which have been put forth by various scholars. These are discussed in extensio below:


The problem of characterization can be solved by the legislator developing corresponding rules on recognition of foreign acts or documents. An example is found in the relevant succession law of Estonia which contains a general conflict rule on succession, according to which the law of the state of the last residence of the deceased generally applies to succession. Also, under this law a succession certificate prepared in a foreign state is recognized in Estonia if the procedure for the preparation and the legal effect thereof are comparable to the provision of Estonia law concerning succession certificates. Thus, an interesting solution can be achieved if the Nigerian legislature can adopt this Estonian model at least in matters of succession. Though by this method, the Nigerian court might be able to avoid recourse to the conflict rules, it is still required to carry out a comparison between the Nigerian substantive law and the relevant foreign law in other to evaluate whether a person is entitled to inherit.

However, the recourse to recognition and enforcement of foreign acts or documents does not always solve the characterization problem since often such recourse is not possible, if a relevant document or judgment does not exist.


            Because the early system of connecting factors was mechanical and inflexible, the results could offend a court’s sense of justice. For example, with the development of motor car, the classification of the cause as tort required the application of the LEX LOCI DELICTI COMMISSI rule. The French court’s insistence on this linkage frequently barred or severely limited relief for French citizens injured in countries that had no developed law for the compensation of such victims. In BABCOCK V JACKSON, 24ON.E 2D 279(NY1963), the New York court of appeals abandoned the LEX LOCI DELICTI rule completely. Most jurisdictions were not so radical, preferring to retain the framework of categories and choice of law rules but leave public policy as the avoidance device.

            This means that states will not apply “foreign” law that offends the deeply held principles of forum’s state legal system. For instance, it would be considered improper to give enforcement to a law that defined the status of a person as a slave or as in the possession of another e.g. for the purpose of sexual exploitation.

          However, in cases involving alleged immorality or injustice, this rule has been criticized as susceptible to abuse, for a court could characterize almost any statute or rule as being offensive to the public policy of their state.



                     THE MODERN APPROACH

          Since the characterization system and the choice of law rule were operating in an inflexible way, the solution has been to allow the growth of judicial discretion within both sides of the system. Hence, most legal systems have opted for the PROPER LAW APPROACH i.e. the identification and application of the law that has the closest connection with the cause(s) of action. In theory, this flexibility will preserve an international outlook and multilateral approach by the courts and in jurisdictions that have adopted this approach, the results are not unencouraging.


              Asides LEX SITUS which determines the characterization of property, there is hardly any consistent theory of characterization. In MACMILLAN INC V. BISHOPSGATE INVESTMENT TRUST PLC (NO3) (1996) 1WLR 387, a case which was characterized by the LEX FORI, the dictum of AULD LJ is instructive;

         “However classification of an issue and rule of law for this purpose the      underlying principle of which is to strive for comity between different legal systems, should not be constrained by particular notions or distinctions of the domestic law of the LEX FORI or that of the competing system of law, which may have no counterpart in other system. Nor should the issue be defined too narrowly, so that it attracts a particular rule under the LEX FORI which may not be applicable under the other system.”

    From the foregoing, this may look like a call for an international application of the LEX FORI, but this may be applied to other concepts too. Characterization should not be restricted but must be determined based on the fact in issue.








1.      Themes on conflict of laws- I.O Agbede (1989)

2.      The conflict of laws- Morris

3.      http://en.m.wikipedia.org




[1] Is the informal name given to the practice adopted by some litigants to have their legal case heard in the court thought most likely to provide a favourable judgment.
[2] Literally meaning in French “send back” or “to return unopened” applies whenever a forum court is directed to consider the law of another state.

The Law of Domicile

Conflict of Law Group 2


            Conflict of laws (or private international law or international private law as it is sometimes known) is a set of procedural rule that determines which legal system and which jurisdiction apply to a given dispute. The rules under conflict of laws apply when a legal dispute has a “foreign” element such as a contract agreed to parties in different countries.

            There are some certain concepts which are important or are regarded as a determinative factor in the conflict of laws. Such concepts include; domicile and nationality.

            The developments of technology and mobility from one state or another brought the emergence of problems. This is because in the process of moving about, an individual has to determine which law applies to him, his marriage, his business transactions, etc.

The development of passports came about in a bid to solve this problem. Passports act as a connection to a legal jurisdiction, which people carry about wherever they go.



            Domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave permanently (that is to say, if that person has not yet moved to a different state, or has not yet formed an intention to remain there indefinitely). LORD CHELMFORD in WAICKER V HUME[1]  in defining domicile said,

“That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special or temporary purpose but with a present intention of making it his permanent home...”

The concept of domicile is not uniform throughout the world. To civil lawyers in Europe who do not apply common law, it means habitual residence. While at common law it is regarded as equivalent to a person’s permanent home

Domicile is what is termed in private international law as a “connecting factor” which connects an individual with a system of law for the purposes of determining a range of matters, principally related to his status or property. For example, in the circumstances below, domicile is said to be a “connecting factor”

  .Legal capacity to marry

  .Personal capacity to make a will

 .Formal validity of a will

 .Jurisdiction of the court in proceedings for divorce


Nationality on the other hand is a relationship between an individual and a country (to which a person owes his allegiance to). Nationality normally confers some protection of the individual by the state and some obligations on the individual towards the state. Where the state and country is federated into separate legal systems the two (domicile and nationality) will be different. But where the country is federated into separate legal systems the two will be different.


Domicile can be distinguished from nationality in that one can have a dual nationality but not more than one domicile at a time as it was held in the case of ODIASE V ODIASE[2].

 Every person as well must have a domicile as was seen in the case of UDNY V UDNY[3]. Unlike nationality no person can be without a domicile even if stateless.

Nationality represents a man’s political status, by virtue of which he owes allegiance to some particular country; domicile indicates his civil status and it provides the law by which his personal rights and obligations are determined.  Nationality depends, apart from naturalisation, on the place of birth or on parentage; domicile is constituted by residence in a particular country with the intention of residing there permanently. It follows that a man may be a national of one country but domiciled in another.



            The rules for determining domicile in common law jurisdictions are based on case law in origin. However, as time went on, different jurisdictions altered some aspects of the common law rules by statute, details of which may vary from one jurisdiction to another. The common law rules have however survived in most jurisdictions and are outlined below.


Dicey states the common law rule as thus;

“Every person receives at birth a domicile of origin,

a) A legitimate child born during the lifetime of his father has his domicile of origin in the jurisdiction in which his father was domiciled at the time of his birth.

b)  A legitimate child not born during the lifetime of his father or an illegitimate child has his domicile of origin in the jurisdiction in which his mother was domiciled at the time of his birth.

c) A foundling has his domicile of origin in the jurisdiction in which he was found.

A domicile of origin is attributed by law to every person at birth. There is no necessary connection between the place of birth and the domicile of origin.

A domicile of origin is more tenacious than a domicile of choice. It is more difficult to prove that it has been abandoned. The point of domicile of origin ensures that everyone has one domicile and only one domicile at all times. If a person leaves the country of his domicile of origin, intending never to return to it, he continues to be domiciled there until he acquires a domicile of choice in another country. But if a person leaves the country of his domicile of choice, intending to never return to it, he ceases to be domiciled in that country unless and until he acquires a new domicile of choice, his domicile of origin revives.

The domicile of origin acts as a fall-back; whenever there is no other domicile, it comes to fill the gap.

In BELL V KENNEDY[4], per Lord Westbury- “The domicile of origin adheres until a new domicile is acquired.”



Every independent person can acquire a domicile of choice by the jurisdiction of residence and intention of permanent or indefinite residence but not otherwise.  According to the DOMICILE AND MATRIMONIAL PROCEEDINGS ACT, every person in the world who is over the age of sixteen and is not mentally incapable is able to acquire a domicile of choice by residing in one country with the present intention of making it his permanent home. Thus there are two important requirements, namely; fact and intention. They are normally referred to as factum and animus. Factum is fact or residence, while animus is intention. A person can therefore abandon a domicile of choice in a jurisdiction by ceasing to reside there (fact) and by ceasing to reside there either permanently or indefinitely (intention). That is to say leaving “animus non revertendi”

Residence for the purpose of domicile has a very wide meaning and its function is to a great extent evidential in character thus, no particular length of residence is required. But long residence in a country will a raise the inference that a person intended to remain there and this may be so strong as to be impossible to rebut. However, long period of absence does not necessarily destroy a domicile of choice and may not do so even if there is indecision about a possible return. Thus in RE LLOYDS EVANS[5], a Belgian domiciliary who had fled to England died before he had decided to return to Belgium or emigrate to Australia. He was held to be domiciled in Belgium.

The requirement of intent is more exacting and important in domicile. In WINANS V ATTORNEY GENERAL[6], Winans had lived a remarkable life in the manner of the heroes of the Victorian age. Born in Baltimore, he spent much of his life in Europe and lived in England for the last 37 years of his life. He built railways in Russia and helped that country against England in the Crimean war by making gunboats. He had an obsession to develop his Baltimore property into a seaport, equip it with ships of his own special design and capture the world’s carrying trade for the United States at the same time putting an end to the Rule Brittanica. His hatred of Britain eventually convinced the House of Lords that despite his long residence there, he lacked the intention to acquire a domicile in England. A similar decision was held in the case of RAMSAY V LIVERPOOL ROYAL INFIRMARY[7].

However it has been submitted that the two cases are extremely unsatisfactory as they put too much emphasis on the desires, however unrealistic, of the person in question rather than what he proposed to do.

In contrast to the case above, the case of WHITE V TENANT[8], where a family were moving house and this involved crossing a state line. Having put their belongings in the new house the family returned to their old state to spend the night with family as the new house was not yet ready to inhabit. When the father died during the night the court decided that he died domiciled in his new state not the old one.

Thus, once it can be established that the intention to make the country of residence the permanent home exists, the fact that the residence was not freely chosen and could be ended by compulsory relation is irrelevant.



This is also known as domicile by operation of law. This type of domicile concerns dependent persons. The domicile of a dependent person is the same as and changes (if at all) with the domicile of the person on whom he is, as regards his domicile, legally dependent. Until he reaches the age of maturity (which maybe the age of sixteen[9]), a legitimate child’s domicile depends on and changes with the domicile unless, both parents being alive, the child has his home with his mother and no home with his father. An illegitimate child or a legitimate child whose parents are both living but who lives wholly with his mother has a dependent domicile coincident to that of his mother’s current domicile. A child whose father is dead takes his domicile of dependence from his mother however, unless he has a home with her, his domicile of dependence does not automatically change with hers. A child whose parents are dead should be domiciled where the person on whom he is dependent is domiciled (however there is no authority for this[10]). At birth, a child receives two domiciles, origin and dependence, which are initially, in the vast majority of cases, the same. The domicile of origin will be overlaid by the domicile of dependence. While the domicile of origin remains constant throughout life, the domicile of dependency changes with the domicile of the person on whom the child is domiciliary dependent. The idea is that, as far as possible, there should be unity of domicile between the child and its parents.

Married Women

            Until 1 January 1974, there were three categories of dependent persons; children, married women and mentally disordered persons. Married women ceased to be dependent persons on 1 January 1974 by virtue of section 1(1) of Domicile and Matrimonial proceedings act 1973. This act however, did not change the position of women married before this date because the act was not retroactive.


    Mentally Disordered Persons

            A mentally disordered person cannot acquire a domicile of choice; he retains the domicile he had when he began to be legally treated as such. However, if he was born mentally disordered or he becomes mentally disordered while a dependent child, his domicile is determined so long as he remains mentally disordered, as if he continued to be a dependent child.




A prisoner normally retains his domicile. But he can form an intention to reside permanently or indefinitely: in which case he acquires a domicile there.

.Persons liable to deportation

Such a person’s residence will be precarious and so he is unlikely to be able to form an intention to remain. But if he forms the necessary intention he acquires the domicile of choice.

Once a person has acquired a domicile of choice he does not lose it merely because a deportation order has been made against him[11]. He loses it only when he is actually deported.

.Refugees and fugitives

A person who leaves a country as a political refugee, as a fugitive from criminal justice, or in order to evade his creditors, has a special reason for leaving it, but has no special motive for entering another country nor is his residence in any other country in any sense enforced. If the fugitive intends to abandon his domicile in the first country, the acquisition of a new domicile in the second country will be readily assumed.

If a political refugee intends to return to the country from which he fled as soon as the political situation changes, he retains his domicile there unless the desired political change is so improbable that his intention is discounted and treated merely as an exile’s longing for his native land; but if his intention is not to return to that country even when the political situation has changed, he can acquire a domicile of choice in the country to which he has fled.

In the case of a fugitive from criminal justice, the intention to abandon his domicile in the country from which he has fled will be readily assumed, unless perhaps the punishment which he seeks to escape is trivial, or by the laws of that country a relatively short period of prescription bars liability to punishment[12]. Similarly, a person who leaves a country to escape his creditors may lose his domicile there; but if he intends to return as soon as he has paid or otherwise got rid of his debts, there is no change of domicile.         


It has been objected that person who resides in a country for the sake of his health does not acquire a domicile. This is because;

a) The residence has been taken up for a special motive;

b) It may not be freely chosen.

These factors make it improbable that a domicile has been acquired. If someone goes to a country for treatment, he clearly does not acquire a domicile there. But where he settles in a new country because he believes he will enjoy better health there may well intend to live there permanently.

.Members of the armed forces

Unless a person intends to change his domicile, he does not acquire a domicile by entering the armed forces or lose the one he has upon his entering.


If a person goes to a country merely to work, he retains his domicile and does not acquire a domicile of choice there. Except where he does not only go there to work, but also to settle in it, he acquires a domicile of choice. Thus, where a barrister with an English domicile of origin was appointed Chief Justice of Ceylon, and he went to Ceylon intending to stay there until he earned his pension, he retained his English domicile[13].


Like every other case, where diplomats do not form the intention of settling in the country to which they have been accredited they do not acquire a domicile there. But if they do form an intention to reside there permanently, they acquire a domicile of choice.



            Domicile is the most significant connecting factor in conflict of laws. It has a dominating role in family and matrimonial property law and a role in other areas such as capacity of persons to make contracts. It plays a part also in the law of taxation.

Domicile is ‘an idea of law’[14]

Domicile of origin cannot be lost as such. Everyone is born with a domicile of origin, which remains (if only in abeyance). Even when a domicile of choice is acquired, the domicile of origin will remain as a resource to fill up any gap when a domicile of choice is abandoned.

A domicile of choice can be abandoned by a person when he or she ceases to reside in a country and ceases to intend to reside there permanently or indefinitely. When a domicile of choice is abandoned either a new domicile of choice is acquired, or the domicile of origin revives by operation of law.

It should be noted that the most important factor in acquiring a domicile of choice is intention (animus). The act of moving may occur but most times it does not necessarily mean that the person intends to move.
























.Hong Kong law reform commission report

.Conflicts of law, Raymond Smith (1993)

.Google search engine

.Nottebohm case ( Liechtenstein v Guatemala)

[1]  (1885) ALL ER 824
[2] (1965)NNLR 196 similarly held in the INLAND REVENUE COMMISSIONER V BULLOCK (1976) 1 WLR 1178 at1184
[3] (1869) L.R 1 S.C & D 117-441 also MARK V MARK
[4] (1868) L.R1 SC & DIV 307
[5] (1947) CH 695C/F RE FLYNN(1968) 1 ALL ER 49
[6] (1910)AC 27
[7] (1930) AC 588
[8] 1888 31B W VA 790
[9] According to section 3(1) Domicile and matrimonial proceedings act 1973
[10] Raymond Smith in Conflicts of  Law(1993)
[11] Cruh v Cruh(1945) All ER 545
[12] Moynihan v Moynihan(Nos 1 & 2 ) (1997) 1 FLR59-where it was held that M, who had left the UK to avoid arrest on serious fraud charges, had at his death acquired a domicile of choice in the Philippines, where he had lived for 20 years, built up a thriving business, acquired properties, married and had children.
[13] A.G v Rowe (1862) 1 H & C 31
[14] Bell v Kennedy(supra)