British Institute of International and Comparative Law, Cambridge University Press Transactions of The Grotius Society

British Institute of International and Comparative Law
The Problem of Renvoi in Private International Law

Author(s): Frederick Allemès
Source: Transactions of the Grotius Society, Vol. 12, Problems of Peace and War, Papers
Read before the Society in the Year 1926 (1926), pp. 63-79
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law
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( 63)
THE PROBLEM OF RENVOI IN PRIVATE

INTERNATIONAL LAW.
BY FREDERICK ALLEMES.
(Avocat du Consulbat Gendral de France a Londres.

Lecturer on French Code Civil at the London
School of Economics.)
There has been lately some renewed talk about the codification
and unification of Private International Law, but desirable as
this may be, it is to be feared that this task will take years
before it can be completed, as its realisation will have to be
carried out very slowly and carefully. In the meantime, we
remain faced with that vexed question of conflict of laws, and
with that still more vexed problem, which I have chosen as the
subject of this Paper, the Doctrine of Renvoi.
There is a conflict of laws each time that a juridical relation
comes into being under such circumstances that when it has
to be judicially solved the laws of two or more countries may be
said to compete as to its solution, so that the Judge who tries
the issue has to decide which is the law applicable in preference
to the other. Therefore a conflict of laws pre-supposes the
existence of the two following elements: (a) a juridical act or
relation, and (b) a set of circumstances whereby the laws of
two or more nations may become applicable. These sets of
circumstances are indeed numerous and varied, but, for the
purposes of this discussion, I intend to confine myself to a brief
review of those which, to my mind, are the most important.
First of all, we find, as regards the juridical act itself, the
place where it was executed. For instance, two French persons
marry in England: which law will apply to the juridical relation
which is called marriage? Will it be the French law or the
English law? And if the parties are domiciled in a third country,
say, in Italy, a third law, the law of the domicil, will conflict
with the law of the parties' nationality and the law of the
place of execution.
Secondly, we find the place of situation of the immovable
property, and
64 THE PROBLEM OF RENVOI IN
Thirdly, the two most essential elements, on the one hand,

the nationality of the parties, and, on the other, their domicil;
and these, on account of their importance, require to be examined
in greater detail.
On the Continent, as a rule, the status and capacity of the
subjects of most States are generally governed by the national
law of such persons. Thus in Italy, under Article 6 of the Codice
Civile, Italian subjects and foreigners are governed in this respect
by their national law; the same rule used to apply in Germany,
and still applies, I think, under the new German Civil Code, but
only so far as marriage, effects of marriage on property, divorce,
and succession on death are concerned, as to which it specifically
provides that, " If, by the whole laws of a Foreign State which by
the law of Germany are to apply, the law of Germany is to be
applied, then the Internal Law of Germany shall apply " (a).
In France, Article 3 of the Code Civil enacts that: " Laws of
police and public security bind all those who inhabit the country.
Immovables, even those owned by foreigners, are governed by
French law; the law as to the personal status and capacity
binds French citizens even when living abroad." By analogy,
the status and capacity of aliens were held to be governed by
their national law.
In Austria, Austrian law was applicable to Austrians and the
law of the domicil to foreigners. At least, such was the position
before the outbreak of the war.
In England and in the United States, as you are well aware,
the law of the parties' domicil is the only one which is taken
into account.
But immediately the difficulty arises: Which is the law to be
applied when the law of a certain country refers the construction
of a juridical act or relation to the law of another country? Is
it the set of rules constituting the internal law of such country?
Or is it the external law of that country; that is to say, the set
of rules of Private International Law which may be in force
in such country with regard to those of its nationals who are
domiciled or resident abroad, or with regard to the foreigners
domiciled or resident on the territory of that country? It is
(a) German Civil Code, 1900.
PRIVATE INTERNATIONAL LAW. 65
in cases where the external law becomes applicable that what

is known as the " Doctrine of Renvoi " is said to apply. To
put the question in a concrete form: An Englishman dies
domiciled in France, leaving some personal property in that
country. (I might point out here that no question could arise
in this case as to the real property, which has to be dealt with
under Article 3 of the Code Civil according to French law.)
French law will apply to the devolution of the personal property
the law of the nationality, that is to say, English law. But
will the French Judge have to consider English law such as it
is applied in England to persons domiciled there, or will he
have to apply the rules of English Private International Law?
In the latter case, since the deceased died domiciled in France,
English law would refer to the law of the domicil, and conse-
quently the Judge would have to decide that the estate be
administered according to French law. If, instead of a French
Judge, an English Judge has to decide the question, the solution
will be equally complicated. The deceased having died domiciled
in France, the English Court will have to administer the estate
according to French law. But will it apply French internal law
or the rules of Article 3--which in the case of foreigners refers
the matter back to the law of their nationality ?
Such is, as briefly set out as can be, the problem of renvoi.
It now remains to be seen how it has been solved by the Courts.
In France, as I have told you, the position is governed by
Article 3 of the Code Civil, and up to 1875 the status and capacity
of foreigners in France was dealt with according to their national
law, understood as being the internal law of the foreigner's
country. Then, in 1875, arose the famous Forgo "Case, which
created a sensation at the time, and kept the forensic critics
busy for five good years. The facts of the case were as follows:
A Bavarian, of illegitimate birth, died in France, where he
was resident but not authorised to establish his domicil, leaving
a very large estate, merely personal, and only collaterals as his
heirs; the latter, under French law (Article 758), would not
have been entitled to anything, and the Revenue immediately
claimed (Article 713) the whole estate, contending that it passed
under French law by reason of the deceased's French domicil.
The Court of First Instance and later the Court of Appeal of
Pau decided in favour of the Revenue, but the Court of Cassation

held that the deceased, not having been authorised to set up
his domicil in France, had never been legally domiciled there,
and that the law of the deceased's nationality, i.e., Bavarian
law, was to apply; consequently the property was to devolve
between the collaterals according to Bavarian law. The Court
of Appeal of Bordeaux, to which the case was referred, upheld
this view. The Revenue started at once to rake up the whole
of the laws of Bavaria, until it discovered that Bavarian law,
on questions of succession, referred back to the law of the place
where the deceased resided at the time of his death. The
Revenue then appealed again to the Court of Cassation and
raised this plea. The Court of Cassation thereupon quashed the
decision of the Court of Appeal of Bordeaux and referred the
case to the Court of Appeal of Toulouse, which decided in favour
of the Revenue.
Thus it is that the collaterals never touched a penny of
M. Forgo's estate, which went, rather depleted by the legal costs,
into the coffers of the French Government.
The above-mentioned decision, although received with mixed
feelings, was nevertheless of great importance, and for many
years, in spite of a strong doctrinal opposition, the various Courts
of First Instance and Courts of Appeal, when the occasion arose.
invariably followed the decision of the Forgo Case, and applied
the " external " law of the foreigner's nationality in preference
to the internal law.
I ought to say at this point that there is no such thing in
France as Case Law, in the meaning under which it is under-
stood in this country, so that any French Court of law may give
a decision contrary to one previously given by a similar or
superior Court-even by the Court of Cassation-in a similar
case. This explains how it was possible for the Court of Appeal
of Paris, in a decision given on August 1, 1905, in the case of
Samory v. Samory, to revolt openly against the apparently
well-established rule. A year later (on June 11, 1906) the Court
of Appeal of Pau followed suit in the case of Clementel v.
Knowles.
In the first of these two cases the deceased, Numa Joseph
Samory, was a citizen of the State of Louisiana, which he had
left in 1886 to come and live in France. There, in 1890, he

had married, and after a short trip to America had come back
to France, where he bought an estate on which he lived until
the time of his death. But he had neither acquired French
nationality nor been " Admis ' domicile," i.e., allowed to set
up in France his legal domicile, and consequently entitled to
enjoy the civil rights of a Frenchman. The Court of First
Instance therefore decided that the municipal law of Louisiana
was to apply to the devolution of his estate, but the widow
appealed against this decision on the ground that the law of
Louisiana referred to the law of the deceased's de facto domicil,
i.e., to French law, and, as I have said, the Court of Appeal
affirmed the judgment of the Court below, and the appeal failed.
In the case of Clementel v. Knowles the facts were as follows:
In 1870 Mr. and Mrs. Knowles, both of English nationality, had
come to fix their residence in France, in the neighbourhood of
Pau, where they continued to reside, with the exception of a few
short trips to England, up to their death.
Mr. Knowles died in 1886 and his widow in 1904.
There was a child of the marriage, Rigby Knowles, but prior
to their marriage Mr. and Mrs. Knowles had had three illegiti-
mate children, who owing to the provisions of English law could
not be legitimised through the subsequent marriage of their
parents. Mr. Knowles' estate included, in addition to property
situated at Pau and other immovable property also situated in
France, some land in England, as well as furniture and shares.
He had made two wills, one in France in October, 1879, the,
other in England in July, 1882. After his death the English
estate, in conformity with the will of 1882, was divided between
the four children, who were then all living. But in France the
administration of the French estate was delayed until the death
of the testator's widow, owing to the fact that under his French
will the deceased had left to his wife a life interest, and to his
three illegitimate children the reversion of his French estate. In
1900 the legitimate son of Mr. and Mrs. Knowles died, leaving
surviving him his widow, Marie Knowles, n4e Duval, and his
only son, Rigby Townley Knowles. At the time of her death,
which occurred, as I have said, in 1904, Mrs. Knowles, under
her will made in England in 1902, left everything to her three
illegitimate children, entirely cutting out her grandson Rigby

Townley Knowles. Under these circumstances, the mother and
guardian of the latter, Marie Knowles, who since her husband's
death had married a M. Clementel, claimed in the name of her
son, as against Mr. Knowles' universal legatees, the reserve
share to which Rigby Townley Knowles was entitled in his
grandmother's estate according to French law. The Court of
First Instance decided that, although the deceased's French
immovable estate was to be, dealt with according to French law,
the movable estate must devolve according to English law, since
the deceased was domiciled in England at the time of her death.
This decision was affirmed by the Court of Appeal.
The general principles laid down by these two extremely
important decisions can be summed up in this way:
(1) The movable estate of a foreigner who dies de facto
domiciled in France, but has not been authorised to fix his
domicile there and so allowed to enjoy the civil rights of a
Frenchman, is to be dealt with according to his national law.
(2) When French law applies the national law of a foreigner,
such law must be understood as that constituting the, municipal
or internal law of his country, and not as being the rules of
Private International Law which may be in force in such country
with regard to those of its nationals who are domiciled abroad.
(3) The rules of Private International Law are strictly
territorial; they cannot be applied outside the territory for which
they have been intended. Consequently, if a State cannot
enforce in other States the rules of law which it has enacted in
this respect, it can no more, be bound to suffer on its territory
the application of different laws of the same kind in existence
abroad.
However, five years later the question was raised again before
the Court of Cassation (Requites, March 1, 1910) in the case
of Hermann v. SouliJ, and decided according to the finding of
the, Forgo Case. A widow, Mrs. Hermann, was the universal
legatee of Coralie Souli6, a national of Louisiana, who died in
Paris, where she had merely a de facto domicil. Emile Souli6,
who was the acknowledged illegitimate son of the deceased's
brother, contended that, under the law of Louisiana, he was
entitled to a reserved share in Madame Souli6's estate. He won
his case before the Tribunal of First Instance and the Court of
Appeal. But the Court of Cassation held that the question was
to be decided, not according to the law of Louisiana, but to
French law, as it was more convenient that reference should
be made by the foreign law to the French municipal law.
Thus the doctrine of the Forgo Case was confirmed after an
interval of thirty years by the highest Court in France, but
confirmed in a very unsatisfactory manner, since the Court in
its judgment dismissed the problem in six lines, without going
into its merits, upon the simple declaration that its solution did
not present any difficulty.
Probably those who took part in the Meetings of the Committee
at The Hague Convention on June 17, 1902, or in the Meetings
of the Institut de Droit International, held also at The Hague
in 1898, and at Neuchatel in 1900, when this problem was dis-
cussed at length, must have disagreed with this view.
However, the Court of Cassation did not succeed in imposing
its views upon the lower Courts, and to this day the conflict of
opinion, on this point remains as acute as ever, a fact which
is evidenced by two decisions reported in Clunet, 1924. On
page 403 of this publication there is a decision of the Civil
Tribunal of the Seine (1st Ch.) of July 20, 1923, in the case of
X v. Z et Morael es qualitis. The facts were shortly as
follows: X, a British subject, residing in Paris, had acknowledged
before the French authorities two illegitimate children; later,
he brought an act-ion before the Tribunal Court of the Seine for
a declaration that these acknowledgments were invalid, on the
ground that they were null and void according to English law,
which, by French law, was to apply. The Court accepted his
plea, and held that when Article, 3 of the Code Civil refers to
the national law of the foreigner, it must mean the municipal
law, and not the rules of Private International Law of that
country.
On page 410 of the same publication we find the. report of a
decision given a few days later, on July 24, 1923, by the Court
of Appeal of Rennes in the case of Gruyon v. Moulton. An
American by birth had had an illegitimate child born at Jersey
and formally acknowledged by him in 1901 as his son. The
mother was French. The child, through a guardian ad litem,
G.S. 8
applied to the French Courts for a declaration that he was the

" Fils naturel reconnu " of Mr. Moulton. The French Court
rejected the application of the guardian on the ground that
Mr. Moulton was an American citizen, who, both at the date
of his death in 1910, and, moreover, at the date of the acknow-
ledgment of the child in 1901, had lost neither his American
nationality nor his dornicil in New York. The Court of Appeal,
however, in giving judgment, intimated that, had the father
lost his domicil in America and settled abroad with an intention
of settling there permanently, their decision would have been
different, inasmuch as foreigners (the Court stated) may become
subject to the law of France in respect of their personal status
and capacity where they have ceased to be governed by their
national law, owing to the fact that their national law renders
them subject to the foreign law of the country where they have
permanently settled.
I would, of course, point out that this judgment is not properly
a decision under the doctrine of renvoi since the Court found the
circumstances of the case did not justify in fact the application
of the doctrine. It, however, upheld it in its dicta as a
principle.
In England the position is by no means clear. Professor Dicey
suggests in his treatise on the conflict of laws that the English
Courts have virtually adopted the doctrine of renvoi: " When it
is said-he explains-that the law of the country of domicil
must regulate the succession it is not always meant to speak
of the general law (i.e., what has been called in his Treatise the
local or territorial law), but, in some instances, of the particular
law which the country of domicil applies to the case of foreigners
dying 'domiciled there and which would not be applied to a
natural-born subject of that country." In support of this,
Professor Dicey quotes the. cases of Collier v. Rivaz (2 Curt.
Eccl. 855) and In the goods of Lacroix ((1877), 2 P. D. 94).
In the first of these two cases an Irishman domiciled in
Belgium left a will made in the English form, which was not
valid according to Belgian law. But under Belgian law succession
in such a case is not to be governed by the law of the country
applicable to its natural-born subjects, but by the law of the
testator's own country. Therefore, says Dicey, the English
Courts held that the will being valid according to the law of
England, ought to be admitted to probate.
This does not show clearly, however, that the renvoi was
adopted by the English Courts, or was even considered. Dr.
N. W. Hibbert, who deals also with this case in his treatise on
Private International Law, contributes his own explanation. To
his mind " Belgian law adopts nationality, not domicil, as the
test, but does not adopt renvoi, since by that doctrine the matter
should have been referred to the whole of English law and by
the external part thereof back to the internal part of Belgian
law, as the advocates of renvoi stop the reference at the second
one, and the will would have been invalid. In fact, the will
was held valid as conforming to the requirements of English
internal law."
In the case of In the goods of Lacroix, an English testator

apparently domiciled in France made in that country a will
and two codicils in the English form, which dealt only with
his property in England. He also made another will in the
French holograph form disposing of his property in France. The
three wills were? held in this country to be valid, since in each
case they had been made in accordance with the law of the place
of execution.
Mr. Pawley Bate, in his " Notes on the Doctrine of Renvoi,"
thinks that these two cases are not conclusive evidence, and
are not sufficient to show that the English Courts have adopted
the theory of renvoi. Personally, I concur in this opinion, the
more so that in each of these cases the validity of a will made
by a foreigner abroad was in question, and a point of this kind,
both under French law and Belgian law, is decided very
definitely by the Code Civil, which gives to the foreigner the
possibility of making a valid will according to French or Belgian
law, either in one of the forms prescribed by such law, or in one
of the forms prescribed by his national law. The rule is clear cut,
and leaves no opening for the application of the theory of renvoi.
It seems to me, therefore, rather difficult to contend (taking
as example the above-mentioned case of Coilier v. Rivaz) that
Belgian law does not adopt renvoi because, if it were adopted,
the will under Belgian law would have been null and void instead
of being valid. Wills made by foreigners in France, according
to the law of their nationality, are also valid according to French

law, and yet it cannot be contended that the French Courts have
never adopted the theory of renvoi. The truth is that in these
instances there was no possibility whatever of applying this
theory and, in fact, it was not argued before the English Court
in either of the cases.
Another case is also usually mentioned by text-writers in
connection with the theory of renvoi, and I will briefly refer to
it. It is that of Re Johnsonr, [1903] 1 Ch. 821.
In this case the facts were as follows:-A Miss Johnson,
whose domicil of origin was Maltese, went to live permanently
in Baden, where she died. Under German law, the law of the
deceased's nationality was to be applied to the devolution of
her estate. In this case the deceased's nationality was British,
and according to English law, the law of the domicil, and not
of the nationality, was to apply. As Miss Johnson was held to
have never acquired a domicile in Baden, since she was not
domiciled there in the eye of the law of Baden, the English
Court decided that she had retained her domicil of origin, and
that, consequently, Maltese law was to apply to the devolution
of her property.
Here the doctrine of renvoi was discussed, and in the course
of his judgment, Farwell, J., said: " The question of renvoi has
no doubt caused great diversion of opinion amongst foreign and
English jurists. The Forgo Case was at one time thought to
have settled the law on the point. But that case was not only
attacked by Messrs. LabbB, Laurain, Lain6 and Tournade, but
has not been followed in two recent cases in the Court of Appeal
in Paris." And the learned Judge concluded in saying: "I
cannot find any such basis of authority on which to found any
conclusion, and I gather that the disputants are urging their
views of what ought to be rather than stating their opinions of
what is the law."
There is, to my mind, no evidence in this case of the adoption
by the English Courts of the doctrine of renvoi; in fact, I think
that this doctrine will never find great favour in this country,
where the law of the domicil of the parties, understood as
being the internal or municipal law of the domicil, is, when-
ever possible,' to be applied to the exclusion of any other. And
it may quite well be that the new principle which is said to have
been established, and according to which " inasmuch as domicil
is a legal relationship between an individual and a State result-
ing from permanent residence in that State, then if the law of
such State attaches no legal consequences to such residence, it
can claim no legal control over the individual in virtue of
such residence, and therefore such residence does not control
domicil " (a) has been set up with a view to obviating the
difficulty of determining whether it is the internal or the external
part of a foreign law which has to be applied to a given case,
and would, uphold my view that the doctrine of renvoi will
probably never be accepted in this country.
This principle is inferred from two decisions: Firstly, Re
Johnson, which I have already mentioned; and, secondly, Re
Bowes, Wengel v. Bates, [1906] 22 T. L. R. 711.
In Re Bowes, a British subject died in France, where he had
settled but where he had not obtained the authorisation of the
French Government to establish his domicil there. It was held
by the English Court that he never acquired a French domicil
in the eye of the French law, and that consequently his estate
was to be administered according to the law of his domicil of
origin, i.e., by English law.
These two decisions (Re Johnson and Re Bowes) have, how-
ever, been subjected to strong criticism on the part of Russell, J.,
in a most illuminating judgment which he has recently delivered
in an extremely difficult and intricate case, Re Annesley,
Davidson v. Annesley, [1926] 1 Ch. 702.
" There can, I think," says the learned Judge, with reference
to Farwell, J.'s finding, in Re Johnson, ." be no doubt that
the first ground of the decision involves the view that a domicil
in a foreign country, not recognised by the law of that. country,
is, in the eye of English law, no domicil at all.
" This aspect of Re Johnson has been subjected to criticism
at the hands of Lord Justice Scrutton in a judgment dissenting
from the decision of the Court of Appeal in Cardagh v. Cardagh.
The decision of the Court of Appeal was revised in the House
(a) Dr. N. W. Hibbert, Private International Law.
of Lords, who approved entirely of the judgment and reasoning

of Lord Justice Scrutton.
" If Re Johnson stands alone as a decision, and if I am
free-and I think I am-to follow my own view, I would prefer
to follow what I have always considered the true, view, namely,
that the question whether a person is or is not domiciled in a
foreign country is to be determined in accordance with the
requirements of English law as to domicile, irrespective of the
point whether the person in question has or has not acquired
a domicil in the foreign country in the eye of the law of that
country.
" It is said, however, that Re Johnson does not stand alone,
but that Mr. Justice Eady came to the same conclusion and
adopted the same view in Re Bowes. I have had the advantage
of reading the shorthand notes of the entire proceedings in that
case, and have no hesitation in saying that the case should never
have been reported. The point was never discussed or argued;
nothing was cited of Re Johnson except the headnote. The
question arose with succession duty. If English law applied,
certain succession duty was payable. If French law applied,
it was not payable. The parties before the Court whose interest
it was to argue that the duty was not payable, stated that in
order to obtain a speedy administration of the estate, they
preferred that succession duty should be paid and the estate
administered according to English law. And the Judge, without
in any way applying his mind to the question whether Re
Johnson was correctly decided or not, simply followed Re
Johnson as all parties desired that he should. The case is of
no value as a decision, and should, I repeat, never have been
reported."
The decision out of which I have taken this opinion, has been
given in a quite recent case, in which the very question of the
doctrine of renvoi was raised, and I intend now to go into it
with more detail. The facts of the case were as follows: In
January, 1924, Mrs. Sybil Annesley died at her residence at
Orthez, in France, where she had been living since 1866. During
this period she only paid four visits in England, where she only
remained for short periods. She had, however, never taken the
steps prescribed by Article 13 of the Code Civil with a view to
obtaining a legal French domicile, and in her will, made in the

English form, she declared that she never had any intention of
abandoning her domicil of origin, namely, English. After her
death, the question arose as to which law was to govern the
devolution of her estate.
English law, contended one side, since French law applies the
law of nationality; and since assuming the doctrine of renvoi to
apply in this case, the deceased never acquired a legal domicil
in France, and retained, therefore, her domicil of origin, which
was English.
French law, contended the other side, since according to the
doctrine of renvoi the national law which is to be, applied accord-
ing to French law is not the municipal law, but the external law
of the foreign country.
Russell, J., in his judgment, came to the conclusion that
French law was to apply first of all on the ground that Mrs.
Annesley died domiciled in France in the eye of English law;
and, secondly, on the ground that the doctrine of renvoi being
recognised in France, " the French Courts, in administering the
moveable property of a deceased foreigner, who, according to the
law of his country, is domiciled in France, and whose property
must, according to that law, be applied in accordance with the
law of the country in which he was domiciled, will apply French
municipal law, and that even though the deceased had not
complied with Article 13 of the Code."
Thus, so far as the application in England of the doctrine of
renvoi is concerned, Russell J., has found a roundabout way to
avoid it, although he adds very frankly: " Speaking for myself,
I should like to reach the same conclusion by a much more direct
route, along which no question of renvoi need be encountered at
all. When the law of England requires that the personal estate
of a British subject who dies domiciled (according to the require-
ments of English law) in a foreign country shall be administered
in accordance with the law of that country, why should not this
mean " in accordance with the law which that country would
apply, not to the prepositus, but to its own nationals legally
domiciled there'? In other words, when we say that the French
law applies to the administration of the personal estate of an
Englishman who dies domiciled in France, we mean that French
municipal law which France applies in the case of Frenchmen.

This appears to me a simple and rational solution which avoids
altogether that endless oscillation which, but for the doctrine of
renvoi, would result from the law of the country of nationality
invoking the law of the country of domicile, while the law of the
country of domicile in turn invokes the law of the country of
nationality; and I am glad to find that this simple solution has,
in fact, been adopted by the Surrogate Court of New York."
As far as other countries are concerned, and without trying to
make an exhaustive survey of the various legislation, I would
like to add that the doctrine of renvoi has been adopted in
Switzerland, by the law of December 14, 1874, as regards civil
status and marriage; in Hungary, also in 1874, as regards
marriage (Article 108); and in the German Civil Code under the
terms of its Article 27, which I have already mentioned above.
The defects and inconveniences of the doctrine of renvoi have
been pointed out over and over again by its opponents, and by
way of conclusion I will briefly summarise them.
First of all, the opponents of the doctrine state that once it
has been decided by the legislator that the national law of a
foreigner is to be applied, it is to that law, and to no other, that
the Judge must refer, and which he must apply. The Judge
cannot accept from a foreign law a theory on private international
law which may be at variance with that ruling in the country
where he sits: all he can do is to borrow from the foreign law
the solution of problems affecting the merits of the case.
Secondly, the doctrine of renvoi gives rise to an unending
series of references, or to what we call in French '" a vicious
circle." Take?, for instance, the case of an Englishman domiciled
in Italy and dying possessed of some moveable property in
France. French Courts would refer to the law of the nationality,
i.e., English law, which would refer to the law of the domicile,
i.e., Italian law, which may refer to French law, in which case,
normally, reference to English law should be made, and so on.
The advocates of the doctrine of renvoi have felt to such an
extent the ridicule of the situation that they have proposed to
stop the references by limiting the second one to the internal
laws of the country so referred to. This was a suggestion of the
German lawyer Von Bar, and in fact, as you have seen, it has
been made part of the German law of to-day. In France, on the

other hand, no legal limitations of the references have been
imposed by the Code, and the question is entirely left to the
discretion of the Judge. One can well understand the reason for
this limitation, but its process, nevertheless, appears to be grossly
illogical and arbitrary. Why stop the references at the second
rather than at the third? And why to the country so referred
to and not to the other?
Lastly, I hardly think that the application of the doctrine of
renvoi can be said to constitute a satisfactory solution to a given
conflict of laws. As Dr. Hibbert, with reason, points out, " the
doctrine, with its limitation to references, must always lead to
different decisions by the Courts of different countries. For
instance, a man dies domiciled in a country which applies the
law of his nationality to the distribution of his property, and
the parties' national law applies to the law of domicil. If the
case is tried by the Court of domicil, the first reference will
be to the national law, the reference back to the internal law
of domicil. If the case is tried by the Court of the nationality,
the first reference will be to the law of the domicil, and the
reference back to the internal national law."
Everything, therefore, tends to show the futility of this
doctrine. But I would venture to suggest that there might be
a means through which it might be dispensed with, a means
which, besides, would have the advantage of being a step towards
the unification of private international law; indeed, the whole
trouble, to my mind, arises out of the fact that the juridical
notion of domicil is not the same in every country, and the
unification of such notion between the various countries would
solve the problem. Why does French law, for instance, refer
in certain cases to English law? Because the interested party
had no domicil in France in the eye of French law; and if
French law is finally applied, it is on the ground that the
interested party was domiciled in France in the eye of the
national law, which then referred to the law of the domicil.
Consequently, if the juridical notion of domicil was identical
both in France and in England, there would be no need to have
recourse to the doctrine of renvoi, since if the interested party
was domiciled in France according to French and English law,
French law only would apply ipso facto, as it is the case for
foreigners domiciled in France. But if, on the contrary, the
interested party, according to both laws, was not domiciled in
France, but in England, English municipal law would in turn
apply ipso facto, without any possibility of reference back to
French law.
(Read before the Grotius Society, on

Tuesday, July 20th, 1926.
Mr. MANISTY expressed his admiration for an illuminating

Paper, which dealt with a very complicated subject in a most
clear and concise manner.
Mr. BEWES declared that the test of nationality ought to be
abandoned. License for a domicil had nothing to do with
domicil, but was merely a step of the acquisition of nationality.
He failed to understand the reason for the rule invested by our
Judges that if a person obtained domicil of choice and then
lost it, his domicil of origin revived.
Mr. PETRIE referred to the crntradictory decisions in the Anglo-
German Tribunal.
Mr. GOITEIN questioned how far the doctrine of renvoi was
required.
Mr. FRASER enquired whether the doctrine of renvoi was
recognised in Scott's law.
Mr. JAFFE referred to the question of contract which had
arisen in consequence of the provisions of the Peace Treaty. He
referred to the recent cases of Finlay v. Graaf and Livingstone
and Finlay v. Graaf.
Dr. BELLOT said he had dealt incidentally with this doctrine
in his Hague lectures, and he wished he had had Professor
Allembs Paper before he wrote them. However, it was satis-
factory to find that he had come to the same conclusions as
Professor Allemes. However, he had there pointed out that
Dicey, Pawley Bate and Dr. Baty had all disapproved of the
decision of Farwell, J., in the case of Re Johnson, the only
English case in which the doctrine is seriously argued. Mr.
Norman Bentwich appeared to be the only English jurist who

supported the doctrine.
He agreed withl Dr. Baty in thinking it as absurd as
it is unnecessary. As Buzzati said, it is lawn tennis applied to
international law. There was only one case in which the doctrine
was discussed in the United States. It was also rejected by
Mir. Beale, who stated that the American Courts had no room
for the doctrine. Professor Lorenzen was also opposed. Thus
neither in Great Britain nor in the United States had there
been any general acceptance either by their respective Courts or
jurists.
Mr. M1\ANISTY compared Professor Allemrs' solution with that
laid down by Lord Watson in Udny v. Udny, 1 H. L. Sc. 458.
The same learned Lord, speaking of the acquisition of a residential
domicil, said: " Domicil of choice is a conclusion or inference
which the law derives from the fact of a man fixing voluntarily
his sole or chief residence in a particular place with an intention
of continuing to reside there for an unlimited time." According
to English law, the conclusion or inference is, that the man has
thereby attracted to himself the municipal law of the territory
in which he has voluntarily settled, so that it becomes the
measure of his personal capacity, upon which his majority or
minority, his succession, and testacy or intestacy must depend.

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British Institute of International and Comparative Law

The Problem of Renvoi in Private International Law

British Institute of International and Comparative Law, Cambridge University Press

THE PROBLEM OF RENVOI IN PRIVATE

(Avocat du Consulbat Gendral de France a Londres.

Thirdly, the two most essential elements, on the one hand,

(a) German Civil Code, 1900.

in cases where the external law becomes applicable that what

Pau decided in favour of the Revenue, but the Court of Cassation

left in 1886 to come and live in France. There, in 1890, he

illegitimate children, entirely cutting out her grandson Rigby

applied to the French Courts for a declaration that he was the

In the case of In the goods of Lacroix, an English testator

to the law of their nationality, are also valid according to French

(a) Dr. N. W. Hibbert, Private International Law.

of Lords, who approved entirely of the judgment and reasoning

obtaining a legal French domicile, and in her will, made in the

municipal law which France applies in the case of Frenchmen.

been made part of the German law of to-day. In France, on the

(Read before the Grotius Society, on

Mr. MANISTY expressed his admiration for an illuminating

Norman Bentwich appeared to be the only English jurist who

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