INTERNATIONAL ISLAMIC UNIVERSITY, ISLAMABAD

FACULTY OF SHARIAH AND LAW

DEPARTMENT OF LAW

THE DOCTRINE OF RENVOI

In Private International Law

Submitted to:

Sir Osman Karim Khan

Prepared by:

Zahid
532-FSL/LLMIL/ F52

LLM International Law

 TABLE OF CONTENTS

Introduction ......................................................................................................................... 5

History and Definition ........................................................................................................ 5

Types of renvoi ................................................................................................................... 4

5. Partial or single renvoi ................................................................................................ 4

5. Total or double renvoi ................................................................................................. 2

Advantages and Disadvantages of Renvoi .......................................................................... 7

5. Advantages:.............................................................................................................. 7

5. Disadvantages: ......................................................................................................... 8

Conclusion ........................................................................................................................ 51

Bibliography ..................................................................................................................... 55

1
 The Doctrine of Renvoi in Private International Law

Introduction
The doctrine of renvoi is one of the very important and vital subjects of Private
International Law, or Conflict of Laws. Because sometimes court sees that the issue will
be decided in accordance with the law of another country, it is the time when doctrine of
renvoi plays its role in solving the problem.

Renvoi is a technique for solving problems which arise out of differences between
the connecting factor used by English law and that of the law to which the English
connecting factor leads.1

In the present paper, we discussed in some details, the definition, nature, kinds,
advantages and disadvantages and other important issues related to the doctrine of renvoi
in private international law and we endeavored to generally clarify this concept.

History and Definition

The doctrine of renvoi is a recent concept in the English legal system. However it is not
clear when for the first time renvoi was introduced. Presumably, it was introduced into

5
Collier, Conflict of Laws (Cambridge: Cambridge University Press, 5115), 51.

2
English law in the year 58455 as an escape device for avoiding the rigidity of the earlier
English conflict rules.3

As abovementioned, for the first time renvoi was used in in 5845 in Collier v Rivaz
case. In this case, which was about formal validity of wills, 4 single renvoi was used. This
status of the renvoi doctrine remained until 5251, when Russell J in Re Annesley introduced
the double renvoi doctrine into English law.2

After some decades its usage was intensely increased. A typical old note of 5214
on the doctrine of renvoi remarks: “a doctrine, of a revolutionary character, has of late been
knocking at the doors of the English system of law, to which the not entirely apt name of
the Renvoi-theory has been given,”1

Renvoi is a French word, which literally means “to send back”7 or “return”. Jason
Chuah defines renvoi in simple way and also very scholarly. He aptly remarks:

“According to this theory, an English judge who is referred by English law to a foreign
legal system must apply whatever law a court in that foreign system would apply.

5
According to some writers, such as Varun Vaish, “the Renvoi question came up for consideration before an
English Court for the first time in the case of In Re Johnson 55 in the early 5211s.” see:
http://poseidon15.ssrn.com/delivery.php?ID=85451112811755111551115417515511212113812511315
3113157178112517512511181555555122112132151157127551511123183158112151174114178142
1351251441355511831525555581585121721551371711575551251111811145535511115511125145
55557114121181112152122515112151184517182&EXT=pdf (Accessed on: 51/ 55/ 5152) But, perhaps,
the true view is presented by Collier when he writes “renvoi was first invoked in Collier v Rivaz (5845) 5
Curt 822. See for details: Collier, Conflict of Laws, 33.

3
J. H.C. Morris, The Conflict of Laws (London: Stevens and Sons Ltd., 5284), 475.
4
Ibid.

22
Josan Chuah and Alina Kaczorowska, Q & A series Conflict of Laws (London: Cavendish Publishing
Limited, 5111), 2.

1
John Pawley Bate, Notes on the Doctrine of Renvoi in Private International Law (London: Stevens and
sons, 5214), 5.

7
Oxford Dictionary of Law on Renvoi, Accessed on 52/ 55/ 5152

http://www.oxfordreference.com/view/5105123/acref/2781522114254011501115/acref-2781522114254-
e-3321?rskey=4D2EbZ&result=5

3
 Naturally, this depends on whether or not that foreign legal system recognizes the doctrine
of renvoi.”8

When one read such a simple statement, obviously it comes into mind that the doctrine of
renvoi is easy and simple, while in some cases it is very difficult especially differentiation
between this and other alike notions.

In some cases, there is more complications and difficulties, especially when

Transmission exists. For instance, a citizen of state X domiciled in state Y may leave
movable and immovable property in two or three states. This may give rise to transmission.
At times, there may be resort to what is called double or total renvoi.

Now, after we have analyzed history, etymology and also definition of doctrine of
renvoi, we will be able to discuss two types of renvoi and some relevant cases.

Types of renvoi

Before a judge resort to the doctrine of renvoi, there is a solution of application of internal
law only. But if there was no room for application of internal law, then judge may apply
the proper type of renovi.2

As it is well known, renvoi has two types. We will discuss both kinds of renvoi in
some length.

5. Partial or single renvoi

Partial of single renvoi applies in a case when rule of law of a country refer it to another
country, but law of later country again refer the case to the law of the former. In this stance,

8
Josan Chuah and Alina Kaczorowska, Q & A series Conflict of Laws, 2.
2
For details of application of internal laws, see; North, P. M., Cheshire and North Private International
Law (London: Butterworths, 5272)

4
the judge of the country applies laws of his own country, but after the second country refer
it.

The following case which is presented by Abla Mayss as an example to describe

this type of renvoi, would further illustrate it:

In Re Ross (5231), the testatrix, a British national and domiciled in Italy. She died in Italy
and left there movable and immovable property as well as some movable property in
England. She had made a will about her movable and immovable property in Italy and
England. This will was valid in English law but invalid in Italian law as she did not leave
half of the property for her son. As she was domiciled in Italy, the English court referred
the case to Italian court. Under English conflict of laws the issue was governed by the law
of the domicile of the testatrix (Italian law). However, under Italian conflict of laws, the
issue was governed by the nationality of the testatrix (English law). Hence, the Italian court
referred the issue back to the English court, which held that the will was valid.51

Another important case was that of Forgo which was decided in the court of Cassation of
France in 5883:

Forgo, an illegitimate Bavarian national, was born with a domicile in Bavaria, but lived
most of his life in France without ever acquiring a “domicile” under French law. He left
movable property in France but no relatives except for some remote collateral relatives of
his mother. These could not succeed him under French law, and under French law the
property, being ownerless, would go to the French state. 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.55

The case was decided in favor of the French state, and it is obvious that the reference here
was to the Bavarian rules of conflict.

5. Total or double renvoi

51
Mayss, Conflict of Laws, 7-8.

55
Collier, Conflict of Laws, 55

5
Total or double renvoi is also known as “foreign court theory”.55 Cheshire and North
defines total renvoi in these words: “This demands that an English judge, who is referred
by his own law to the legal system of a foreign country, must apply whatever law a court
in that foreign country would apply if it were hearing the case.”53 An example of total
renvoi is in Re Annesley (5251) case which in nutshell is:

T, an Englishwoman of British domicile of origin, died domiciled in France in the English

sense, but not the French sense because she had not obtained authority to establish her
domicile in France as required by Article 53 of the Civil Code [she failed to comply with
registration formalities]. She left a will which purported to dispose of all her property. By
French law, T could only dispose of one-third of her property because she left two children
surviving her. Evidence was given that a French court would refer to English law as T’s
national law would accept the renvoi back to French law. French domestic law was applied
and T’s will was only effective to dispose of one-third of her property.54

In the case of capacity of the Englishman to marry, the doctrine of total renvoi would
involve three steps. O’Brien describes it:

(a) The English court determines the lex causae in the usual way, thus applying the
dual domicile test and referring the issue of marital capacity to Italian law, i.e.,
lex domicilii;

(b) The English court applies the conflict rules of the lex causae. Thus, it would
find that an Italian court would refer to English law as the lex patriae;

(c) As we are back where we started, the English court looks to Italian law to see
whether an Italian court would accept or reject the remission, thus trying to
avoid any further toing and froing. If an Italian court would accept the reference
back, the English court would apply Italian domestic law to the question of

55
Cheshire and North, Private International Law, 22.

53
Ibid.

54
Morris, Conflict of Laws, 471

6
 marital capacity. If an Italian court would not accept the remission, the English
court would apply English domestic law to the substantive issue. 52

Advantages and Disadvantages of Renvoi

Same like other academic discourses, the doctrine of renvoi has its advocates and
opponents. There are some scholars who focused on the benefits of this doctrine and see it
as a useful doctrine and a proper solution. On the other hand, some jurists are against it and
look at it as an inconvenient solution. Here, we will write arguments of both, the advocates

1. Advantages:

Those who favor renvoi provide many arguments, we summarized it in these points;

5. First vital benefit of renvoi is, by resorting to foreign choice of law rules, the courts
avoid a foreign internal law that has no connection with the propositus.51 Clarkson
and Hill defines it in simple words:

It is claimed that it is self-defeating to purport to apply a foreign law unless one

applies the solution that would actually be applied by the courts of the foreign
country.57

Then they provide an example describing this:

If a British person dies intestate domiciled in Mexico leaving a movable estate in England,
a court would be applying the law of nowhere if it were to apply Mexican domestic law

52
O’Brien, Conflict of Laws, 537

51
THE ADVANTAGES AND DISADVANTAGES OF RENVOI (Accessed: 53/ 55/ 52)

https://www.academia.edu/4211283/THE_ADVANTAGES_AND_DISADVANTAGES_OF_RENVOI

57
Clarkson and Jonathan Hill, The Conflict of Laws (Oxford: Oxford University Press, 5155), 38.

7
 and ignore the fact that a Mexican court would not itself apply Mexican law, but would
treat the case as a conflicts case and apply English law.58

5. The second great advantage is said that in sometimes it promotes the reasonable
expectation of the parties.52 This happened in Re Annesley case.

3. The third is; it is often 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 brought. If the English court decides the case
in exactly the same way as the court of a foreign country would decide it, by using
the foreign counrty’s conflict rules, including its rules of renvoi, then uniformity
with that country results.51

4. Fourth advantage said by those who advocating for renvoi –especially by Briggs-
is that it prevent the forum shopping. If the English court apply the law of another
country, then there would be no need for forum shopping.55

Briggs says: “After all, there will be no incentive to forum shop to England if the English
court will try to determine the case in the same as a judge of the court whose law is the
chosen law.”55

2. Disadvantages:

Doctrine of renvoi also has some opponents. They presented very important arguments
against this doctrine. These arguments could not be overlooked, this is why we summarized
it in these points;

58
Ibid.

52
Ibid, 32.

51
Ibid.

55
Adrian Brigs, The Conflict of Laws (Oxford: Oxford University Press, 5153), 53.

55
Ibid.

8
 5. One of the important criticism that renvoi faced with is that; application of domestic
law of foreign country could defeat reasonable expectations of person, constitute
negation of policy underlying En PIL rule; i.e. rule that interstate succession to
movables governed by law of domicile based on view that application of law of
person’s home best fits reasonable expectation of individuals; if court applies
renvoi, which usually substitutes nationality as connecting factor, expectations of
person who did not make will b/c he believed his property would devolved
according to local rules governing interstate succession may be defeated.53

5. There are also practical difficulties involved in the application of renvoi. One arises
when the conflict rules of foreign country refers to the law of a person’s nationality,
and the person concern is a national of the UK or the US. In some cases it is not
certain which law should be applied.54
3. Another difficulty arising where foreign law refers to nationality; easy for unitary
states, but problematic for federal states.52

4. Another criticism of renvoi lays, while English court deciding what the foreign
country’s rules of renvoi are, especially when the question is unsettled in the foreign
country itself.51

2. Another, that renvoi subordinates English choice of law rules to those of a foreign
system.57

53
Private International Law: Renvoi (Accessed: 54/ 55. 5152)

https://www.google.nl/url?sa=t&rct=j&q=&esrc=s&source=web&cd=8&cad=rja&uact=8&ved=1ahUKEw
ijrODh5efJAhVGRhQKHQt2CNAQFghTMAc&url=http%3A%5F%5Fbasilnet.awardspace.com%5FLegal%5
251Files%5F3rd%5251year%5251stuff%5Fprivate%5251international%5251law%5Frenvoi.doc&usg=AFQjC
NHT2JNFq3B-vPxMOA5Q8QbIOe5a3Q&bvm=bv.551525844,d.d54

54
Clarkson and Jonathan Hill, The Conflict of Laws, 45.

52
Private International Law: Renvoi.

51
Clarkson and Jonathan Hill, The Conflict of Laws, 43.

57
Adrian Brigs, The Conflict of Laws, 55.

9
 1. Also, one of the practical problems with the doctrine of renvoi is that it generally
requires detailed expert evidence about the state of foreign law.

Conclusion

After we have gone through history, definition, types and advantages and disadvantages of
the doctrine of renvoi, it is important to keep in mind that it does not apply to all cases. As
Abla Mayss remarked about it: “renvoi applies to questions of intestate succession and
essential validity of wills. There is some authority to the effect that it applies to ‘marriage’
and that it should apply to cases involving title to immovable property. Renvoi does not,
however, find a place in the fields of contract or tort.”58

58
Mayss, Principles of Conflict of Laws, 2.

11
 Bibliography
5. Bate, John Pawley, Notes on the Doctrine of Renvoi in Private International Law
(London: Stevens and sons, 5214)

5. Brigs, Adrian, The Conflict of Laws (Oxford: Oxford University Press, 5153), 55.

3. Collier, J. G., Conflict of Laws (Cambridge: Cambridge University Press, 5115)

4. Cheshire and North, Private International Law (London: Butterworths, 5272)

2. Chuah, Josan and Kaczorowska, Alina, Q & A series Conflict of Laws (London:
Cavendish Publishing Limited, 5111)

1. Clarkson, CMV and Hill, Jonathan, The Conflict of Laws (Oxford: Oxford University
Press, 5155)

7. Mayss, Abla, Principles of Conflict of Laws (London: Cavendish Publishing Ltd., 5224)

8. Morris, J. H. C., Cases and Materials on Private International Law (London: Butterworths,
5284)

2. Morris, J. H. C., Dicey and Morris on the Conflict of Laws (London: Stevens and Sons
Ltd., 5281)

51. Morris, J. H.C., The Conflict of Laws (London: Stevens and Sons Ltd., 5284)

55. O’Brien, John., Conflict of Laws (London: Cavendish Publishing Ltd., 5222)

55. Stone, Peter., Conflict of Laws (London: Longman, 5222)

53. Vaish, Varun, “The Renvoie Theory, its Development, Application to Contractual Choice
of Law and the Way Forward”. (Accessed on: 51/ 55/ 5152)

http://poseidon15.ssrn.com/delivery.php?ID=854511128117551115511154175155112121
13812511315311315717811251751251118155555512211213215115712755151112318
31581121511741141781421351251441355511831525555581585121721551371711575
55125111181114553551111551112514555557114121181112152122515112151184517
182&EXT=pdf

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54. “Private International Law: Renvoi” (Accessed: 54/ 55. 5152)

https://www.google.nl/url?sa=t&rct=j&q=&esrc=s&source=web&cd=8&cad=rja&uact=8&v
ed=1ahUKEwijrODh5efJAhVGRhQKHQt2CNAQFghTMAc&url=http%3A%5F%5Fbasilnet.
awardspace.com%5FLegal%5251Files%5F3rd%5251year%5251stuff%5Fprivate%5251internati
onal%5251law%5Frenvoi.doc&usg=AFQjCNHT2JNFq3B-
vPxMOA5Q8QbIOe5a3Q&bvm=bv.551525844,d.d54

52. “THE ADVANTAGES AND DISADVANTAGES OF RENVOI” (Accessed: 53/ 55/ 52)

https://www.academia.edu/4211283/THE_ADVANTAGES_AND_DISADVANTAGES_OF
_RENVOI

12