Doctrine of Renvoi

Introduction to Private International Law

Private International Law is one branch of the diverse laws under which the private citizens of various countries do transactions and interact with each other. It is a structure of conventions, guides that help regulate relations across national borders. It has a dualistic nature of balancing international harmony as well as balancing sovereign actions with those of the private sector. Private International Law is a piece of law which deals with private populaces of various nations. International laws are different for every country. Those are the rules made by the nations to decide the communication with autonomous countries. Each country has their own principles according to which they decide the scope of the law. Unification of substantive law and its conflicts both come under the ambit of Private International Law. It addresses the issue of a broad spectrum of legal concerns. It includes diverse issues like child abduction, wills and trusts, sales contracts, enforcement of foreign judgments, negotiable instruments etc. these issues are limitless to the attorneys with an international practice. It has become both the development of multilayer international agreements in setting rules as well as other means to harmonize and unite substantive law.[1]

Introduction to Renvoi

In French “Renvoi” means “send back” or “return unopened”. When any conflict occurs, which is considered to have law of another state referred to as Private International Law, The Doctrine of Renvoi is a legal doctrine which is thereafter applied in the court. It is a significant and elementary subject of Private International Law or Conflict of Law. This is applied in foreign issues of succession planning and administering estates. The Doctrine of Renvoi is the process by which a court adopts rules of a foreign jurisdiction with any conflict of law. It is a method used to take care of cases existing in foreign elements. The idea used behind the doctrine is that it prevents forum shopping and the same law is used for cases regardless of what the case actually is. It attempts to achieve the end.

Types of Renvoi

While under a Judge if there is no space left to use law, which is under Jurisdiction of a nation, at that point the judge may apply the best possible kind of Renvoi.

1. Single Renvoi

This system refers to laws which are chosen from others’ jurisdictions. Countries like Spain, Italy, Luxembourg use a Single Renvoi system. In their jurisdiction where the matter arises in (A), those authorities will consider whether their own domestic law is the applicable law otherwise if it is applicable in Jurisdiction (B) its rules will be then applied to bring it back to (A) the court will accept the reduction and apply its own domestic laws.

2. Double Renvoi

Countries like England and France accept double Renvoi. Where the court of (A) applies the law that the court (B) would apply if the matter came before it. This system uses two or more remissions. For e.g. let’s consider the case where a testator, an Irish national, who is habitual resident of Spain but domiciled in Italy, does leave moveable property in France. France has a forum that examines the law of the deceased’s habitual residence Spain and applies Spanish laws. Spanish law observes the deceased nationality which is Italy. France will apply Italian law in this case as Italy has a jurisdiction operating a single Renvoi system.

3. No Renvoi

Countries like Denmark, Greece and the United States do not accept Renvoi.[2]

Procedure for Conflict Cases

The court at first place must decide whether it has the jurisdiction to hear the given case which includes addressing the questions of whether the plaintiff is attempting to manipulate the judicial system by forum shopping. Next step is characterisation, which is the court analysis of cases as pleaded and allocated components to its appropriate classification which has one or more choice of law. The court will thereafter apply the choice of law rules. In certain issues like family law, incidental questions emerge complicating the process.

Application of Renvoi

The scope of Doctrine of Renvoi is very limited because of its unpredictability. It is applied in validity of wills and intestate succession i.e. Transfer of property and retrospective legitimacy of marriage of natural parents i.e. validity of divorce decree. However, there are also states which apply these two issues in family law.

Judgements related to Doctrine of Renvoi.

In re Ross[3]

In the above-mentioned case, the testatrix was British citizen, she was domiciled in Italy and had written a will leaving the land in Italy and the movables both in Italy and England. The will was valid in England but not in Italy as she had not left half of her property to her son. The court applied the law regarding where the property is situated. The movables in Italy because the will writer’s nationality was Italian. So, the judge applied the Italian law with respect to the immovable property situated in Italy because Italy does not accept the Renvoi based issue in accordance with English law.

Forgo case[4]

In this case a Bavarian national died in France, he lived there from the age of 5 year. According to Bavarian law the property was passed to the relatives, but in French law it will be passed to the government and not the family members. The French court held that it would entertain the enquiry according to Bavarian law. The case was ruled for French state and the reference was the Bavarian guidelines.

Re Annesley[5]

This case is a Renvoi case of property. A 58-year woman was domiciled in England, she was also a French domiciled as she died there. The case was invalid under the French law as she did not leave two third of her property to her hire. Which is mentioned in French law. The English court applied for an authority certificate of domicile for the women as during her death she was a domicile of France. Based on it the English court referred the matter to the French court because she was domicile of France during death. France has single renvoi rule and they referred the case back to England. Therefore, the French court would accept the remission and have applied the internal law.

Critical Analysis of Renvoi

After looking into the definition, types, points of interest of Renvoi. Critically it can be said that it does not make a difference to all cases. Renvoi does not discover a spot in the fields of contract or tort and anyways if there is no Renvoi the court has to apply Internal laws. Despite logical fallacies, this foreign court doctrine has British and American scholar’s support. Fundamental rules of choice of law are hindered under the obsession of this Doctrine of Renvoi. Basically, this Renvoi Doctrine has been relied upon to enable Utopian courts to enforce rights acquired in Ruritania. The rights cannot exist outside the territory of the Law system that created it unless it is recreated by Foreign law.

Even when a court intends to apply the Renvoi Doctrine it must rely on foreign experts’ information to what the foreign law is. This need creates an element of inefficiency and oddness in the court’s procedure. This is also dangerous for a court to apply alien laws of which he does not have elementary ideas as certain degree of distortion is ordinally unavoidable in applying foreign rule. Thus, it appears that no forum can be relied upon to apply substantive foreign country law in an entirely consistent manner. This problem is complex when the court seeks to apply foreign choice of law rules. All these reasons often raise the judges to employ either foreign or domestic law to their personal view whichever is the better fit. The court ends up introducing its own doctrine of public policy in the guise of interpreting foreign choice of law.

However, if the court feels that it is better to apply the Lex fori than foreign rule it may reject the foreign law. The logical and the evidential problems accompanying the Renvoi in fact may prove to be effective guises for judicial eclecticism and law reform. Though judicial law-making is commendable towards Lex fori they should not provide this opportunity just because it includes a foreign element. Briefing above instances it is apparent that the Renvoi doctrine is subject to many weaknesses. In light of these criticisms it is difficult to support utilizing this doctrine as a technique for the choice of proper Lex causae. It is devoid of certainty and predictability of a court of law.[6]

Question

  1. What is Private International Law?
  2. What is The Doctrine of Renvoi and its types?
  3. What procedure does the court follow when conflict of law occurs?
  4. What are the applications and drawbacks of Doctrine of Renvoi?
  5. Judgements which used Doctrine of Renvoi.

[1]Rogers, P. (1989). Private International Law. The International Lawyer, 23(1), 207-212. Retrieved June 2, 2020, from www.jstor.org/stable/40706230

[2] Paliwala, M. (2020, February 9). The elaboration of the Doctrine of Renvoi in Private International Law. Retrieved from https://blog.ipleaders.in/doctrine-of-renvoi/

[3] 140 U.S. 453

[4] Schreiber, E. (1918). The Doctrine of the Renvoi in Anglo-American Law. Harvard Law Review, 31(4), 523-571. doi:10.2307/1327886

[5] [1926] Ch 692

[6] Choice of Law and the Doctrine of Renvoi Stanley B. Stein. (n.d.). Retrieved from https://lawjournal.mcgill.ca/wp-content/uploads/pdf/246462-stein.pdf

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