Jaber Elias Kotia and Anr. v.

Katr Bint Jiryes Nihas

Citation:  Kotia v. Nahas [1941] A.C. 403 (P.C.)
Quorum: Lord Justice Clauson, Sir George Rankin, Romer, Russel of Killowen, Justice Lords
Atkin 

This case gave substantial recognition to the doctrine of renvoi in England. The doctrine of
renvoi is a legal doctrine applied when a situation arises that necessitates the application of a law
of a jurisdiction other than that of the forum. The application of the doctrine of renvoi compels
reference not only to the internal law but also to the conflict of laws rules of the foreign system.
 
Facts/Connecting factors: The case was an appeal to the Privy Council from the Supreme Court
of Palestine.  It involved a dispute over succession to land located in Palestine. The land
belonged to a Lebanese national who was domiciled in Lebanon. The question was as to what
proportions the land should be divided between his widow and brothers, which turned on
whether the division was to be made according to Palestinian or Lebanese Law.  The decedent's
widow claimed under the succession law of Palestine, the situs, which would allow her to take
one-half of the estate, with the other half equally divided between the decedent's two brothers.
The brothers claimed under the succession law of Lebanon, the domicile and native country of
the intestate, which would give the widow one-fourth and the rest to the brothers. Palestinian law
(Section 4 of the Palestinian Succession Ordinance) provided that succession should be governed
by the decedent's national law, i.e., Lebanese law, in this case. Therefore, the issue was whether
Palestine's reference would include Lebanon's conflicts rules. If so, the Palestinian court would
find itself referred back to its own law because the Lebanese choice of law rule was that the law
of the situs determines succession to land.  

Issues: 
1. What is the Palestinian Law as to the devolution on the death of the intestate of this particular
piece of land?
2. What would the Lebanese Courts determine to be the devolution of this particular piece of
land in the present scenario?

Held: 
Using the formula that a reference to foreign law is presumably for the purpose of "sitting and
judging as would the foreign court," the court reasoned that the reference from the law of
Palestine, as the situs, to the national law, included the latter's conflicts rules.   
It concluded that there was no reason in the particular case why it should not accept the reference
back to the situs and apply its own internal succession statute which, incidentally, strongly
favoured the widow.  

The appeal was dismissed with costs.

Application of Renvoi/Characterisation: 
The Appellants argued that the reference to lex patriae must only extend to Lebanon's domestic
rules of succession and not to its conflict of law rules as doing so would create a self-
perpetuating cycle. The court simply declared that this was not necessarily so, and their decision
in doing so can be seen in prior English succession cases where the forum accepts the renvoi on
the initial reference back. This acceptance of renvoi is with no realistic study of what a lebanese
court would actually have done in the case. 

Re Askew
Citation: [1930] 2 Ch. D. 259

Facts: An English settlement made upon the marriage of a husband domiciled in England with
his first wife was settled upon trust during the husband's life to apply the income for the benefit
of himself and the first wife and the issue of the marriage as therein mentioned, and after the
death of the husband and the first wife upon trusts for the issue of the marriage. The settlement
provided that should the husband marry again he might by deed or will revoke the provisions
contained in the settlement concerning a part of the husband's trust fund, and might appoint the
same upon trusts for the benefit of any wife who might survive him and of any child of that
marriage. There were two children from the first marriage. The husband separated from the first
wife, and acquired a German domicile before 1911, in which year the proper Court in Germany
having jurisdiction in the matter dissolved the marriage. In April 1912, the husband married a
second wife in Berlin. On January 30, 1911, a daughter had been born in Switzerland to the
second wife, and she was acknowledged to be the husband's daughter. The divorce was made
final in July 1911. By a deed poll dated June 13, 1913, the husband purported to revoke the trusts
relating to a part of the husband's trust fund under the settlement, and to appoint the income upon
trust after his death to be paid to the second wife, and after her death upon trusts for the children
of the second marriage. He died in 1929; and the trustees of the settlement took out a summons
asking for the opinion of the Court whether the power of appointment over the trust fund had
been validly and effectively exercised by the deed of 1913.

Connecting factors: The husband had domicile in Germany and was an English National. The
trust was an English Trust.   

Issues: Whether only the local laws of Germany were to be considered or the whole of the laws?

Held: It was stated that, in matters coming before English Courts and depending on foreign
domicile, the lex domicilii, in the widest sense, must prima facie be applied
It was held that since based on the evidence, the daughter had acquired the status of legitimacy in
Germany, and that, since the lex domicilii must prima facie prevail, she must be treated in an
English Court as a legitimate child of the husband, with the result that the power of appointment
must be held to have been validly exercised. 

Application of Renvoi/Characterisation: The private international rules of England made a

reference to lex domicilii which in this case was Germany whose private international rules
would make a reference back to lex patriae, England. The German Courts would in making such
a reference consider the private international rules of England as well. Therefore, they accept the
renvoi. The Reichsgericht, the Court of the highest instance in Germany has held that in cases
where the German law provides that the law of the nationality is to govern a question and the law
of nationality refers to the law of domicil and the domicil is German, the German Court is to
apply German municipal law.    

Such conflicts were mostly caused by the conflict of the Anglo-American doctrine that personal
law is determined by the domicil of the de cujus with the Continental doctrine that it is
determined by national allegiance.    

Re Anneseley

Citation: 1926 Law Reports Chancery 692

Facts:

The case concerned the will of an English woman who had resided in France for 58 years prior to
her death. She was the owner of movable property both in France and in England. She had never
acquired a legal French domicile in accordance with the provisions of Article 13 of the French
Civil Code, but she had a domicile de facto, and according to the principles of the English law a
legal domicile in France. By her will made in France in English form she purported to dispose of
all her property movable and immovable, and declared that, although she had lived in France for
many years, it had not been and was not her intention to abandon her English domicile of origin.

Connecting factors:

1. English woman who had resided in France for 58 years

2. No intention to abandon her English domicile of origin.

Issues:
1. What was the domicile of the testatrix at the time of her death?

2. Whether the French municipal law by which she could dispose by will one third of her
movable property, or the English law by which she had complete freedom of disposition, applied
to her estate?

Held:

A declaration of a person as to his domicile was not sufficient to change the operation of law,
and the deceased woman had by fact and intention acquired prior to the date of her will a French
domicile. The succession was therefore to be governed by French law which referred back to the
English law, because the succession of a person who has not obtained a legal domicile in France
is governed by the law of his nationality.

Characterization – Application of renvoi

The English law again referred the matter back to French law as the law of the domicile, and the
English court being satisfied that a French Court would accept the principle of the renvoi gave
judgment on that basis. The reference back to the French law was effective. Therefore, the
municipal law of France was applied and the power of disposition was restricted to one third of
the property.

Re Ross: Ross v. Waterfield

Citation: 1930 I Chancery 377

Facts:

This case concerned the succession of an Englishwoman who had obtained a domicile in Italy.
The succession in question was that of Mrs. Ross, who was the daughter of an English writer,
Dame Lucy Duff-Gordon. The husband of Mrs. Ross was born in Malta and consequently was of
British nationality but had a Maltese domicile of origin. He entered the British Consular service
and for many years lived at Alexandria with his wife. Subsequently, they moved to Italy,
acquired property, and lived there the rest of their lives. The husband died in 1902 and left all his
property to his wife. She lived on till 1927 leaving two wills, one in English language and one in
the Italian language. By the two wills, she disposed of the bulk of her property, movable and
immovable, to her nephews and nieces. Action brought by her son who contended that the will
was invalid because, either by the Italian law or by Maltese law, the son was entitled to half of
the estate as his legitimate portion.

Connecting factors:

1. English nationality of husband and wife

2. Domicile of husband and wife as Italian

Issues:

1. Does the phrase of “law of domicile” so far as the English law is concerned, mean only that
part of the domiciliary law which is applicable to nationals of the country of the domicile, or
does it mean the whole law of the country of domicile, including those rules of Private
International Law, administered by its tribunals?

Held:

There was no doubt that the law which by English principles governed the succession to the
movable property was the law of the domicile. The Court found that there was little doubt that
the domicile both of the husband and the wife was Italian. The judge, after examining a series of
English decisions, found that the law of the domicile meant the whole law of the country of
domicile including its rules of PIL and that the English Courts when seized of such an issue are
solely concerned to inquire what the courts of the foreign country would decide in the particular
case. The Court therefore held that the wills of the testatrix to be good both as to her movable
and immovable property.

Characterization – Application of renvoi

The wills of the testatrix was held to be good both as to her movable and immovable property,
because it was satisfied in both cases that the Italian courts would decide the question of
succession in the same manner as English courts would determine it if the property belonged to
an Englishman and was situated in England. In other words, the English courts would accept the
renvoi of the foreign law to the English law, while the foreign court would not accept a renvoi
back from the English to the foreign law.