Introduction

In the study and applications of principles associated with the Private International Law, one comes across an assortment of doctrines and principles which they find difficult to understand and master. The concept of Renvoi seems like one such doctrine at the outset. Before we delve into the real world application of the doctrine of Renvoi, it becomes important to understand what the precept of Renvoi entails. In a world of over 200 countries with most of them having their own sovereign laws, it becomes extremely difficult at times to effectively answer the questions arising from such scenarios where the adjudicating body feels that there is a need to determine as to law of what country will be applicable in a given situation that concerns multiples jurisdictions at once. Conflict of Laws might arise because the individual in question is resident of another country or he is citizen of another country, The problem gets even more complicated when one considers that a person can be prosecuted in two countries at once on account of them being domiciled in one country while they continue to hold the citizenship of another country. There is a conflict of laws whenever a juridical relationship arises under such circumstances that when it must be resolved judicially, the laws of two or more countries may be said to compete as to its solution, so that the Judge who hears the case must decide which is the applicable law over the other. As a result, a conflict of laws requires the existence of two elements: “(a) a juridical act or relation, and (b) a set of circumstances whereby the laws of two or more nations may become applicable”. To tackle these problems in a more effective manner – the doctrine of Renvoi came into being.

Types of Renvoi

The Single Renvoi

A situation of Single Renvoi is encountered when the laws of a country allude to the law of the foreign country on some conflict of law and law of the foreign country alludes back to the law of the original country.[1] 

Re Askew Case – In this case, the father was a national of Britain, however, he was domiciled in the country of Germany. As per the English laws, the child cannot have been said to be legitimate as per the English Laws as the father was married to another lady. The German laws were alluded to at this stage. The German courts accepted the “renvoi” and held the child to be legitimated under German laws where the father was domiciled.

Re Ross Case – The case involves will of an English women. This woman was also domiciled in Italy and had died leaving property both in England and in Italy. The will was held to be valid, however, it was considered to be invalid under Italian laws which stipulate that for a will to be considered valid, a significant portion needs to be given to the child. The English court alluded to the Italian laws on this matter and referred the case to them. However, they alluded the case back to England. When England tried to do the same thing again, Italy refused to acknowledge the Renvoi as there had already been two referrals and the laws of Britain was considered applicable for the determination and resolution in this case taking laws of the Britain to be applicable as Britain was last point the procession of referrals. This case again shows how countries with the Single Renvoi regimes operate. It also makes it a classic case to be considered remission.

R v Brentwood Superintendent registrar of marriages, ex. p. Arias – The factual matrix of the case was concerned with the legitimacy of the second marriage. The husband was domiciled in Switzerland, however, he was a national of Italy. The English courts first alluded to the Swiss laws. However, under the Swiss laws it was made clear that the questions with respect to the legitimacy of a marriage will be decided on the basis of nationality of the person concerned. Therefore, the English courts then adopted the policy of transmission and alluded to the Italian Laws and held that the husband was barred from marrying. This is where an important difference comes up between “remission” and “transmission” – in the former, the country alludes back to the laws of the same country from where the reference was made while in the latter the principal of country alludes to the laws of a third party.

The Double Renvoi

Double Renvoi is a type of Renvoi where the forum court works towards ensuring equality. Under this system, more than two referrals are allowed however, more than two remission are not acceptable under the framework as well.[2]

Case Law Evolution 

Re Annesley Case – A British National died leaving behind her will. The will was valid if the English laws were to be considered however it was invalid under the French laws as she had not left two-thirds of the property to her children which is a necessary requirement. The issue is further exacerbated by the fact that she had acquired the status of having a French domicile under English laws, however, under the French laws she could not have been considered a person holding French domicile. The British court alluded to the French law on this matter including the French rules on renvoi which said that all English laws on this matter were valid. Therefore the Britain while upholding its status as a country that considered nationality as a more definitive marker decided the matter in accordance with the French laws .

Case of Collier v. Rivaz - Despite the fact that the dead benefactor was a British citizen, the will was legally valid under Belgian law because the deceased was domiciled in Belgium at the time of his death. "The court staying here chooses from the proof of the persons talented in that law and chose as it would if sitting in Belgium," declared Sir Herbert Jenner throughout the course of his ruling. He decides that Belgian law only applies to Belgian citizens' wills, and that foreigners' wills should be governed by their nationality's law. English law tried the will in this manner and found it to be valid.

Renvoi as a Conflict

The problem raised by what is known as renvoi in conflict of laws is simple: “if the lex fori states that a particular issue should be decided by a foreign system of law as the lex situs, or the law of the person's domicile, does that mean the domestic or internal rules of law of that system, or does it mean all of that system's rules of law, including its conflict of laws rules”?

If a reference to a country's legal system means a reference to its entire set of rules, including its conflict of laws rules, the result can be strange in some cases, where the conflict of laws rules of that system are fundamentally different from those of the lexfori. The problem of renvoi, on the other hand, cannot occur if it is knowingly resolved to apply a foreign law in a certain set of circumstances, because that decision must imply the foreign domestic law.[3] This is the circumstance in which multiple countries have agreed, by an international convention, that a specific type of dispute between parties shall be addressed by a specific legal system. As a result, most international accords that adopt a standard rule of conflict of laws clearly state that the law chosen as applicable must be the domestic law of that legal system. It should also be noted that many conventions, such as the Rome Convention, prohibit the use of renvoi (Article 15). As a result, it runs counter to the purpose of the Conflict of Laws or Private International Laws in place. When the doctrines of partial (single) and total (double) renvoi are used, the primary goal of dispensing justice is called into doubt. The unpredictability of the outcome makes this philosophy difficult to apply.[4]

The disadvantage of doctrine of renvoi is that the application of domestic law of a foreign country may defeat reasonable expectations of a person, constituting a violation of the policy underlying the En PIL rule; i.e. rule that interstate succession to movables is governed by law of domicile based on the view that application of law of person's home best fits reasonable expectations of individuals; if court applies renvoi, which usually substitutes nationality as a connecting factor, expectations of a person may be violated.

Total renvoi is a difficult concept to grasp. It is necessary for the local court to ascertain the precise decision that the foreign court would render as facts. Local court must gather prevalent view in foreign nation on doctrine of single renvoi. It may be difficult to prove, particularly if the point is not yet argued and is difficult to obtain information from trustworthy experts.[5] Wynn-Parry J in Re Duke of Wellington stated : “it would be difficult to imagine harder task than which faces me,namely, expounding for first time either to this country or Spain relevant law of Spain as expounded by SC of Spain, which up to date, has made no pronouncement on subject... and on subject their exists profound cleavage of legal opinion in Spain and two conflicting decisions of courts of inferior jurisdiction”

Another problem arises where foreign law refers to “nationality as, easy for unitary states, but problematic for federal states”. Re O’Keefe assumed “National meant law of domicile of origin”. For example, “Woman, a British national, died intestate in Italy leaving moveable property. En PIL stated law governing succession was Italian, since she was domiciled in Italy at death. According to Italian law, as governed by national law, it rejected renvoi.” Crossman J stated “law of woman’s nationality is understood to mean part of British Empire to which she belonged I.e., Southern Ireland, so her nationality was Southern Ireland”.

Conclusion

Therefore, there has been a marked shift in the approach of the courts while dealing with the matters of conflict of law between several jurisdictions. It can be easily concluded that Doctrine of Renvoi is essentially a resolution mechanism that is employed whenever there is a conflict between the laws of various states, competing or not. Therefore, it can be concluded that our understanding and application of the doctrine of Renvoi has undergone a sea of change and this change is perhaps for the better as the time has shown. Over insistence on one approach often leads to tunnel vision which then impairs evolution of judgement in any field. However, to correctly apply the Doctrine of Renvoi, the foreign court must either reject renvoi or adopt just single renvoi. If the foreign court accepts double renvoi, renvoi will flow from local to foreign, creating no solution.

References

About the Author: This post is prepared by Nitisha Mohanty, Law Student from KIIT School of Law. She can be reached at nitishamohanty2406@gmail.com

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