FACULTY OF LAW

JAMIA MILLIA ISLAMIA

PROJECT TITLE

CONFLICT OF LAWS

“DOCTRINE OF RENVOI”

SUBMITTED BY:

MOHAMMAD AAZAM

B.A.LL.B. (Hons.), S/F

X SEMESTER

ROLL NO. 30

SUBMITTED TO:

DR. ALISHA KHATUN

FACULTY OF LAW

JAMIA MILLIA ISLAMIA

 ACKNLOWEDGMENT

The success and final outcome of this research paper required a lot of guidance and assistance
from many people and I am extremely fortunate to have got that all along the completion of
my research work. Whatever I have done is only due to such guidance and assistance and I
would not forget to thank them.

I owe my profound gratitude to our Conflict of Laws teacher Dr. Alisha Khatun, who took
keen interest in my research work guided me all along, till the completion of my project by
providing all necessary information for the research report.

I would also not forget to remember my friends for their unlisted encouragement and more
over for their timely support and guidance till the completion of my research work.
 TABLE OF CONTENTS

 Introduction
 History and Definition
 Types of Renvoi
o Partial or Single Renvoi

o Total or Double Renvoi

 The doctrine of total renvoi is difficult to apply

 Advantages and Disadvantages of Renvoi
 Conclusion
 Bibliography
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 leads1.

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 English law
as an escape device for avoiding the rigidity of the earlier English conflict rules.

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

After some decades its usage was intensely increased. 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.”

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

1
Collier, Conflict of Laws (Cambridge: Cambridge University Press)
“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. Naturally, this
depends on whether or not that foreign legal system recognizes the doctrine of renvoi.”

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 that 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.

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

1. 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,
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 Ross2, an English women, whose domicile of choice was 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 Italian law. However, under Italian conflict of laws, the issue was governed
by the nationality of the English law. Hence, the Italian court referred the issue back to the
English court, which held that the will was valid.

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

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.

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

The principle of single renvoi is completely seen in the “Re Askew case”3. The Father was
British national domiciled in Germany. Under English law, the child couldn't be viewed as
having been legitimated as when the child was conceived the father was married to another
lady. The court connected German law, being the law of the domicile of the child father; that
the law alluded to English law being the law of the nationality of the father; this is turn
implied alluding to German law, and as German law "acknowledged" renvoi the child was
viewed as legitimated as she would have been respected under German law.

2
(1930) Ch. 377
3
[1930] 2 ch 259
2. Total or double Renvoi

Total or double renvoi is also known as “foreign court theory”. 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.”

An example of total renvoi:

S, an English woman 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, S 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 S’s
national law would accept the renvoi back to French law. French domestic law was applied
and S’s will was only effective to dispose of one-third of her property.

The double renvoi doctrine is completely seen in Re Annesley4 case. A women, who was a
national of Britain died, having made her will. The will was substantial if English law was
relevant however was invalid under French law as she had not left two-third of the estate to
her children. She had under English law, gained a French domicile, yet under French law she
was not viewed as having a French domicile. The court held that the French law was
appropriate and connected the entire French law including French Conflict of Laws
guidelines under which the entire English law was relevant, as the law of her nationality, and
after that connected French law as the French court would "accept" the renvoi.

In Collier v. Rivaz5, A British subject who died domiciled in Belgium made a will as
indicated by the types of English however not of Belgium law, when the formal legitimacy of
will relied on upon the law of the deceased benefactor's domiciled at the date of his death. Sir
Herbert Jenner, over the span of his judgment, said "The court staying here chooses from the
proof of the people talented in that law and chooses as it would if sitting in Belgium". He
chooses that the Belgium law just applies to will as made by Belgium subjects and that the

4
[1926] ch 692
5
[1841] 2 Curt-855
wills of the foreigners should under that law be controlled by the law of their nationality. The
will was in this way tried by English law and held substantial.

The doctrine of total renvoi is difficult to apply

The said doctrine obliges the English judges to ascertain as a fact that the precise doctrine
that the foreign court would give. This confronts him with two difficulties. First, he must
ascertain what view prevails in the foreign country with regard to the doctrine of single
renvoi. Secondly, where the foreign rule for choice of law selects the national law of the
propitious, the judge must ascertain what is meant by national law.

The chosen law that emerges from the application of the doctrine depends on whether the
doctrine of single renvoi is recognized by the law of the domicile. If the court of the domicile
would accept the remission made to it by engish law, it would determine the case according
to its own internal law; otherwise it would apply the internal law of England. This
dependence of the right of the parties on the attitude of the law of the domicile to the renvoi
doctrine is a cause of acute embarrassment. There are few matters on which it is more
difficult to obtain reliable information not least because of the undue influence of expert
witnesses over the process.

Alternatively, the English judge may be confronted with a somewhat arduous and invidious
task, as witness the following remarks of WYNN-PARRY J:
It would be difficult to imagine a harder task than that which faces me, namely, of
expounding for the first time either to this country or to Spain. Which up to the present time
has made no pronouncement on the subject, and having to base that exposition on evidence
which satisfies me that on this subject there exists a profound cleavage of legal opinion in
Spain and two conflicting decisions of court of inferior jurisdiction6.
 
The second difficulty that may arise is to ascribe a definite meaning to the expression
national law. When a private international law rules of the country in which the English judge
is presumed to sit select the nationality of a person as the connecting factor, it becomes
necessary to correlate the national law with some precise system of internal law by which the

6
Re Duke of Wellington [1947 Ch 506 at 515]
issue before the court may be determined. This is a simple matter when the person is a
national of some country such as Sweden, which has a unitary system of territorial law. There
is a single body of internal law applicable throughout the territory known as Sweden. The
position is far different where the country of nationality comprises several systems of
territorial law, as is true for example of the United Kingdom and the USA.

For an English court the question is really pointless, because the law that governs a British
subject in personal matters varies.

The case of Re O'Keefe7 has served to illustrate both the nature of the difficulty and the
speciousness of the total renvoi doctrine.

Facts of the case where:

The question before the English Court was the way in which the movables of X, a spinster
who died intestate, were to be distributed. X's father was born in 1835 in Ireland but at the
age of 22 he went to India, except for various stays in Europe lived there throughout his life
and died in Calcutta in 1885. X was born in India in 1860; from 1867 to 1890 she lived in
various places in England, France and Spain' but in 1890 she settled down in Naples and
resided there until her death 47 years later in 1937. About the year 1878 she had made a short
tour in Ireland with her father. She never though lost her British nationality, but was held that
she had acquired domicile in Italy.

The law selected by English Private International Law to govern the question of distribution
was, therefore the law of her domicile. Had an Italian judge been hearing the case, however,
he would have been referred to her national law by the Italian Civil Code. He would have
rejected any remission made to him by the national law, since the single renvoi doctrine had
not been adopted in Italy. The Civil Code used the general expression national law and failed
to define what this means when the country of nationality contains more than one legal
system. Which system of internal law, then, out of those having some relation to X, would be
regarded by an Italian Court as applicable? The issue raised in the case was whether it was
the law of England, Ireland or India.

7
[1940] Ch. 124 See Nadelmann (1969) 17 AJCL 418, 443-448.
Which of these systems would be the law of the country to which X belonged at the time of
her death? She certainly didn't belong, whatever that may mean to England in the sense of
attracting to herself English internal law, for she had spent no appreciable time in the country.
She might, perhaps by reason of her birth in Calcutta, be regarded as belonging to India,
though she had not been there for 70 years. The reasonable man might even be excused for
thinking that she most properly belonged to Italy, the country where she had continuously
spent the last 47 years of her; life.. CROSSMAN J, however, would have none of these.

He reverted to X's domicile of origin, and held that she belonged to Ireland because that was
the country where her father was domiciled at the time of her birth. In the result, therefore,
the succession to her property was governed by the law of the country which she never
entered except during one short visit some 60 years before her death; which wasn't even a
separate political unit until 62 years after her birth; of whose succession laws she was no
doubt profoundly and happily ignorant; and under the law of which it was impossible in the
circumstances for her to claim citizenship.

The convolution by which such a remarkable result is reached is interesting. Firstly, the judge
is referred by the English Rule to the Law of Domicile, which in the instant case means the
law of domicile of choice, then he bows to the superior wisdom of a foreign legislator and
allows the law of the domicile to be supplanted by the law of the nationality; then, upon
discovering that the law of the nationality is meaningless, throws himself back on the
domicile of origin; thus determining the right of the parties by a legal system which is neither
the natonal law or the law of the domicile as envisaged by the English rule for choice of law8,
commenting on this is surely superfluous.

Advantages and Disadvantages of Renvoi

Same like other academic discourses, the doctrine of renvoi has its advantages and
disadvantages. 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.

8
(1940) 56 LQR 144 at 46.
Advantages:

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

 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. 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.

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 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.

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

Disadvantages:

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

 There are practical difficulties involved in the application of renvoi. One arises when
the conflict rules of foreign country refer 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.
 Another difficulty arising where foreign law refers to nationality; easy for unitary
states, but problematic for federal states.
 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.
 Another, that renvoi subordinates English choice of law rules to those of a foreign
system.
 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

The conclusion having been fully established that the renvoi doctrine cannot be accepted as a
general principle in the conflict of laws, we may briefly consider certain exceptional cases in
which recognition that the lex fori should incorporate the foreign law inclusive of its rules of
the conflict of laws may be either necessary or expedient. It has been found necessary to
accept the renvoi doctrine in the framing of international conventions as the only means of
bringing together nations with different rules in the conflict of laws9.

Just Because of the favor shown to marriages, the lex loci celebrationis might be deemed to
incorporate the foreign law as a whole for the purpose of sustaining a marriage, but not to
defeat it. It would be preferable, however, if this result were reached through the adoption of
an alternative rule in the conflict of laws.

It would seem that, by reason of the permanent and exclusive physical control which a nation
has over immovable property within its territory, the validity of a conveyance of such
property should be determined in accordance with the law of the situs as a whole. It would
follow that if the law of the situs authorized the execution of a deed or will in _the form
prescribed by the law of the place of execution, its validity should be recognized everywhere.

Uniformity might be reached without recourse to the renvoi doctrine if all countries would
adopt alternative rules in their systems of the conflict of laws. As regards the formal
execution of a deed or will, the general acceptance of the rule locus regit actum as an
alternative rule would be sufficient.

With respect to capacity and the substantive validity of wills and deeds, international
uniformity could be brought about only in case all countries were willing to sustain such
instruments if they satisfied either the law of the situs or the national law of the owner. Under
present conditions, the renvoi doctrine would appear to be the only practicable means by
which such uniformity can be attained.

9
Art. I on The Hague Convention of June 12, 1902.
 BIBLIOGRAPHY

 www.academia.edu
 http://www.ijssh.org/papers/196-G10028.pdf

 The Doctrine of Renvoi in International Torts: Mercantile Mutual Insurance v

Neilson (2005) 13 Torts Law Journal 1
 Renvoi and International Torts Litigated in Australia (2005) 1(1) Journal of Private
International Law 35
 Clarkson, CMV and Hill, Jonathan, The Conflict of Laws (Oxford: Oxford University
Press)