Doctrine Of Renvoi

The Word Revnoi is derived from the French word

“Renvoyer”
The meaning of the word Renvoi is to “Send back” or

to “return unopened”
 It is the process by which a court adopts the “Rule of a

Foreign Jurisdiction” w.r.t. any conflict of law that

arises
 Renvoi is a technique for solving problems which arise

out of differences between the connecting factor used

by Lex Fori and that of the law to which the Lex Fori
connecting factor leads.
 Illustration:
Suppose A, a British subject whose domicile of origin was English,
died intestate domiciled in Italy, leaving movable property in
England. The dispute related to movable property is brought
before the English court. The general principle of English private
international law is that in case of a death of person intestate,
distribution must be made according to the law of the deceased's
domicile at the date of his death, while the general principle of
Italian private international law is that in case of a death of person
intestate, distribution must be made according to the law of the
deceased's nationality at the date of his death
.
In the above illustration the judge of the lex fori is
confront with the obvious question, what is meant by
Italian Law?

 Does it mean Italian internal law as applied to the

distribution of Italian movables of Italian subjects
domiciled in Italy? Or
 Does it mean the whole of or entire of Italian law,
including in particular the rules of private
international law as recognized by Italy?
 When a case is complicated in this fashion, owing to a difference
in the private international law of two countries, three possible
suggestions are Apparent.

These are:
 
i) The judge may take the 'law of Italy' to mean the internal law of Italy;
or

ii) He may decide the case by applying private international law of Italy.
on the assumption that the doctrine of renvoi is recognized by English
law; or

iii) He may take the 'Law of Italy' to mean the law which a Italian judge
would administer if he were seized of the matter.
 This three possible courses will now be discussed...

I)The first solution (which is generally considered as the

correct and most desirable approach on all hands) is to
read the expression 'the law of a country's as meaning only
the Internal Law of the country. This would seem to be in
accord with the intention of the propositus.
If, for instance, a man voluntarily abandons England and
acquires an Italian domicile of choice where he resides
permanently until his death many years later', the natural
inference it is that he voluntarily and willingly submit
himself to the internal law of that country. This represents
the view throughout the United States of America.
II)The second solution is to apply the private international
law:
X, a British subject, dies intestate, domiciled in Italy, and
an English Court is required to decide the mode in which
his movables found in England shall be distributed.
The English Court is directed by its own private
international law to refer this question of distribution to
Italian law as being the lex domicili of the deceased. When
however, it examines the provisions relating to the conflict
of laws contained in the Italian code, it finds that in the
case of succession to movables they prefer the lex
partiae of the deceased to his lex domicili. Thus, the
English Court finds itself referred back to English law as
being law of X's nationality.
III)The Third possible solution 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 seized of the matter.
The question, for instance, concerns the
intested dispositions of a British subject who dies
domiciled in Italy, leaving assets in England. A Italian
judge dealing with this matter would be referred by his
private international law to English law, but he would
then find that the case was refered back to him by English
law.
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.

Second: Where the foreign rule for the choice of law

selects the national law of the propositus, the
judge must ascertain what is meant by national
law.
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.
Partial or single renvoi applies in a case when rule of law

of a country refer it to another country. The law of a

country shall mean a reference to the whole of its law,
including the private international law. refer it.
Remission: When the problem is referred back to the
lex fori by connected legal system due to application
of Single renvoi by lex fori then such a referral is
called remission.
Illustration:
Suppose A, a British subject whose domicile of
origin was English, died intestate domiciled in
Italy, leaving movable property in England. The
dispute related to movable property is brought
before the English court.
Transmission: When a problem is referred by lex fori to
a connected legal system which neither provide a solution
nor refer it back to the lex fori rather by application of its
private international law refer it to a third legal system
which according to it is the connected legal system then
such a referral is called transmission.
Illustration: An Italian testator dies domiciled in
France leaving movables in England. Suit is brought
before English court. English law will refer the
question of succession of movables of the of his
domicile, i.e French law in this case. But if however
French were to refer the same question to the law of
his nationality i.e Italian law in this case then this
would be a case of transmission.
 Forgo’s Case: (1883) 10 Clunet 63

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 likewise.
Re Ross (1930) 1 Ch. 377
An English testatrix died domiciled in Italy both in the English and
Italian sense leaving movable property in England and Italy and
immovable property in Italy. Succession to all her property was,
therefore governed by Italian law as the lex domicili and lex situs. She
disposed of her property by a will which excluded her son from the list
of beneficiaries. This exclusion was justified by English internal law but
invalid according to Italian internal law which required that one half of
the property should go to the son as his legitima potio.
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.
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(Lex
fori), 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.”
In Re Annesley (1926) Ch 692
An English testatrix had lived in France for fifty six years. She died
leaving a will of movable property. The English court held that she died
domiciled in France, so that French law governed the validity of her will.
According to French law she was domiciled in England because she had
never obtained the authorization of the French government which was
necessary for the acquisition of domicile before 1972 in France.
Her testamentary disposition were valid by English internal law, since
she had failed to leave two third of her property to her children.
By French law also the validity of the will was governed by the law of
Mrs. Annesley’s last domicile but by French law she died domiciled in
England. So English law would be applied by a French court. However
by means of renvoi it would apply the English conflict rule, so that it
would apply the French law of succession.
The court applied the French law of succession and held the will
partially invalid.
 Those who favour renvoi provide many arguments, this may
be summarized in the following 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.
For Example:
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.
 Second great advantage is said that in sometimes it
promotes the reasonable expectation of the parties.
This happened in Re Annesley case.
 Third 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
 Fourth advantage said by those who advocating for
renvoi 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.
 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.”
 Doctrine of renvoi also has some opponents. They
presented very important arguments against this
doctrine which could not be overlooked. These
arguments can be summarized in the following
points;
 First: One of the important criticism that renvoi faced with is that;
application of private international law of foreign country could defeat
reasonable expectations of person thereby negation of policy
underlying in Private International Law rule;
For Example: 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 believed his property would devolved according to local
rules governing interstate succession may be defeated.
 Second: Another difficulty arising where foreign law refers
to nationality; easy for unitary states, but problematic for
federal states.
 Third: Another criticism of renvoi lays, while English (Lex
fori) court deciding what the foreign country’s rules of
renvoi are, especially when the question is unsettled in the
foreign country itself.
 Fourth: Another, that renvoi subordinates English (Lex
Fori) choice of law rules to those of a foreign system.
 Fifth: 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.
Hague Draft Convention 1951
Article 1 – When the State where person concerned is
domiciled prescribe the application of the law of his
nationality, but the State of which person is a citizen
prescribe the application of the law of his domicile
each contracting State shall apply the provision of
internal law of his domicile.
Article 2 – When the State where the person concerned
is domiciled and the State of which such person is
citizen each prescribes the application of the law of his
domicile, each contracting state shall apply the
provisions of the internal law of his domicile.
Hague Draft Convention 1951
Article 3: When the State where the person concerned
is domiciled and the State of which such person is a
citizen each prescribes the application of his national
law, each contracting state shall apply the provisions
of the internal law of his nationality.
 Rome II Regulation: E.C. Regulation 864/2007
Article 24: The application of the Law of any country
specified by this Regulation means the application of
the rules of law in force in that country other than its
rules of private international law.

 Rome I Regulation: E.C. Regulation 593/2008

Article 15: In case third person has duty to satisfy the
creditor, law by which third person is governed will
apply.
The European Succession Regulation No. 650/2012
(Brussels IV)
 It will apply to the estates of individuals dying after 17 August 2015 and
in all of the EU members states except United Kingdom, Denmark and
Ireland who have opted out.
 Only one law determines how an estate is dealt with across the
Brussles IV Zone.
 Deceased “habitual residence”, habitual residence need not itself be
Brussels IV state.
 In case habitual residence can not be proved than the country to which
deceased was “manifestly more closely connected”.
 Law of his “nationality” if deceased choose. Choice must be expressly
mentioned in the will.
 Case: National Thermal Power Co. vs. Singer Company & others
AIR 1993 SC 998
Held: The law of contract is not affected by doctrine of renvoi.

 Case: Viswanathan vs. Rukn –ul-Mulk Syed Abdul Wajid

(1963) 3 SCR 22
Held: In disputes related to immovable property lex situs shall be
applied