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.