Renvoi

Conflict of law (procedural) rules and domestic (sunbstantive) law

At this point of time I suppose you are aware that the rules of conflict of laws (hereinafter referred to as COL rules) are a set of unique procedural rules, which is to be distinguished with domestic law (e.g. contract law, criminal law, company law, etc). The COL rules only come into operation when the claim contains a foreign element. To sum up, COL rules determine:

• Firstly, the question of jurisdiction is basically whether the English court has power to deal with the cases (whether the English court is the appropriate forum).
• Secondly, if the English court does assume jurisdiction, the question of choice of law is to determine which set of rules would apply: the English law, or those of a foreign country with which the case has connections?
• Thirdly, the questions of recognition and enforcement of foreign judgments concerns with the issue whether a foreign judgment can be recognised and enforced by action in England.

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‘Renvoi’

‘Renvoi’ is a French term which means ‘sending back’.

In the context of conflict of laws, the English courts are often face difficulties in dealing with questions regarding to jurisdiction and applicable law, especially where there are more than one legally relevant foreign elements, which resulting in more than one different laws and it is doubtful that which law should be applied.

For example when an English court decides that the lex causae is French law, the problem arises as to whether Italian law means the French domestic law alone, or it is including the French COL rules. If French law carries a wider sense including French COL rules, the situation is even much complicated as the French COL rules may refer back to the English law again.

The interminable cycle give rises to the doctrine of renvoi. Renvoi refers to the process of a court to consult and adopt the COL rules of foreign judgments. Under the doctrine of renvoi, English court treats the reference to a foreign law as the domestic law of the foreign country, as well as the COL rules of the foreign country.  

Forms of renvoi

In the academic literature and the decided cases, various solutions to the problem of renvoi have been suggested.  The solutions may be understood best by using an illustration.

Suppose Kai dies intestate and a question arises concerning succession to his estate. Kai is British but has died domiciled in Italy, leaving movables in England. English COL says that succession to his movables is governed by lex domicilii, which is the Italian law. According to Italian COL rules, succession is governed by the lex patriae, which is the English law.

What should the court do? There are three possibilities.

• First, the English court might immediately apply English COL rules, apply Italian domestic law accordingly. This requires proof of the French domestic law, but not of the Italian COL rules (which possibly involve the application of renvoi). In such situation there is no renvoi, which means that English court is ‘rejecting the renvoi’.
• Second, the English court might interpret the English choice of law rule, which is the lex domicilii, as the French law including its conflict of laws rules. Thus by looking at the Italian COL rules, which refers to the lex patriae, English court will then apply English domestic law accordingly. This method requires proof of Italian COL rules, but not the Italian domestic law. This method is known as a single renvoi, which means that English court is ‘accepting the renvoi’.
• Third, the English court might decide the case exactly as it would be decided by the Italian court. If the Italian court would refer to English and would interpret that reference to mean English domestic law, then the English court would apply English domestic law. However, if the Italian would refer to English law and would interpret that reference to mean English COL rules, and would ‘accept the renvoi’ from English law and apply French domestic law, then the English court would apply French domestic law. This method requires proof of the Italian COL rules, Italian domestic law and Italian COL rules about renvoi. This method is known as total renvoi or double renvoi or multiple renvoi.

The third approach represents the present doctrine of the English courts and French court.

Countries such as Spain, Italy, and Luxembourg operate a ‘Single Renvoi’ system.

Countries such as Denmark, Greece and the US do not accept renvoi (first approach).

English cases applying renvoi

In Collier v Rivaz (1841), the court was concerned with the formal validity of a will and the six codicils made by a British person died domiciled in Belgium. Under the strict conflict of rule then in existence, formal validity of wills was governed exclusively by the law of domicile of the testator at the date of death. The will and two of the codicils complied with domestic Belgian law and were therefore valid. The English court applied the Belgian COL rules, which is law of nationality, by which the remaining four codicils were valid by English domestic law. It could be seen that the doctrine of renvoi was applied by the English court to achieve the ‘just’ result.

Collier v Rivaz was disapproved by Bremer v Freeman (1857). Here the British testatrix died domiciled de facto in France, made a will in France in English form. The will concerned with movables property, mostly situated in England. It was submitted that she did not obtain effective French domiciliary, for the reason that she did not obtain governmental authorization. She was domiciled in France, only in the context of English COL rules. Privy Council expressly disagreed with the approach taken by the court in Collier v Rivaz, held that the will was invalid under the law of France. They refused to consider the French COL rules and directly apply French domestic law.

The first English case in which the question of renvoi was actually considered was the case of. Re Johnson In Re Johnson (1897), a British woman, whose domicile of origin was Malta, died intestate in Grand-Duchy of Baden, Germany. She left movables in England and Baden. Farwell J held that the movables in England are to be distributed according to Maltese law. The decision was based on two alternative grounds.

• First, under the English law, it is impossible to acquire a domicile of choice in a foreign country unless the domicile of choice was acquired according to the law of the foreign country. Here the litigant has failed to obtain an effectual domicile of choice of Baden (a foreigner could not acquire a domicile of Baden under the law of Baden). The court assumed that the Baden court would decline the jurisdiction. In the event that a person has failed to acquire an effective domicile of choice, his domicile of origin will revive. Hence the issue is governed by Maltese law.
• The second line of reasoning is based on the assumption that the litigant was at her death domiciled in Baden, and that the law of Baden governed the succession to her movable property. Evidence in the case established that by the law of Baden, the succession to her property was governed by the law of the country of which she was a subject at the time of her death, which is the English law.

NB: The first line of reasoning was considered to be inconsistent with the well settled rule under English law which says that for the purpose of English COL rules, domicile means domicile in the English sense.

Total renvoi was first applied by Russell J in the case of Re Annesley (1926). Here a British died domiciled in France, leaving movable property in England. Her will was valid by English domestic law, but invalid by French law to the extent that she had failed to leave two-thirds of her property to her children. Under English COL rules the essential validity is governed by lex domicilii, which is the French law. Under French COL rules it is governed by English law, which is the law of her nationality. Russell J took the view under the English COL rules (lex domicilii) the English court must decide the case as French court would decide it. However it is unclear that how the French court would deal with the issue of renvoi, as the issue was unsettled. Experts on French law suggested that French court would reject the renvoi and simply apply French COL rules. However, the English court held that the better view was that the French court would accept the renvoi. Hence, the English court applies the English COL rules and then applies the French domestic law accordingly.

In Re Ross (1930), a British died domiciled in Italy, leaving movable and immovable property in Italy. The will was valid by English domestic law but invalid by Italian domestic law. The English COL rules pointed to the Italian law (lex domicilii for movable property and lex situs for immovable property) and the Italian COL rules referred back to English law. It was submitted there was evidence that the Italian court would reject the doctrine of renvoi and would simply apply English domestic law. Accordingly, English domestic law was applicable.

None of the above decision has provided a plausible justification for the application of renvoi. It appears that English courts are allowed to apply renvoi in the interest of justice.  

Application of renvoi

It shall be noted that the doctrine of renvoi is not used in the vast majority cases. It can only possibly be utilized if one party to the litigation expressly pleads it. However, there has been case where the English court has seen fit to continue to make reference to the doctrine even when it has not been pleaded (Vervaeke v Smith (1983)).

The doctrine of renvoi has been applied to formal and essential validity of wills (Re Annesley), cases of intestate succession (Re O’Keefe) and retrospective legitimation by subsequent marriage (Re Askew (1930)). There are indications that it might apply to formal validity of marriage (Taczanowska v. Taczanowski (1957)) and capacity to marry after a foreign divorce (R v Brentwood Superintendent Registrar of Marriage, ex p Arias (1968)).

There has been first instance decision where it shown not to apply renvoi to moveable property. In Islamic Republic of Iran v Berend (2007), the court did not introduce renvoi although they have an opportunity to do so. The judge said ‘Whether or not renvoi should apply in any given circumstance is largely a question of policy’. 

The application of renvoi is rejected in the fields of contracts (Article 20 of the Rome I Regulation) and torts (Article 24 of Rome II Regulation).

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Argument for renvoi

It was claimed that it is self-defeating to apply the domestic law of foreign country, without considering what the COL rules of the foreign court. This argument may attach some importance, especially when the COL rules of the foreign court do point to lex fori and not their domestic law. In fact, as Briggs commented that, if an English court is making a judgment based on foreign law, it would be reasonable for the English court to make reference to what it understands to be the law which the foreign courts would themselves apply. Clarkson and Hill argued that the argument is flawed on the basis the nature of the choice of law is based on the idea that the territorial sovereignty of states must be respected, by which their laws shall be applied for a dispute that is closely connected to them (for example lex loci damni) and appropriate to be applied (for example lex situs). The COL rules of the foreign country, is immaterial.   

It was claimed that the application of renvoi will, in some situation, protect the reasonable expectations of the parties. There has been some illustration provided by academic, but the argument is again misconceives the nature of choice of law. A reasonable person shall presumably aware of his domicile and nationality, and shall hold their expectation in accordance to the relevant COL rules and the following domestic law. Thus a man, who national is Nigeria but domiciled in England, should have known that he is not permitted to marry a woman below 16, and shall not hold his expectation on the application on renvoi and hope that the matter would eventually be governed the law of nationality.

It was claimed that the concept of total renvoi is to achieve uniformity of decision of the case, irrespective of the country in whose court it is brought. However, the COL rules are designed to select the applicable law that is appropriate, rather than achieve uniformity of decision. In fact a uniformity of decision is impossible, by which every country, or system of law, shall have the autonomy to design their COL rules based on their policy.

The fourth argument for total renvoi was based on the strength of title to immovable property situated abroad. The lex situs rule is designed for the reason not only it is the most appropriate rule, but also the fact that the property in question is under the control of authorities of the situs. Thus an English judgment would be redundant without the concurrence of these authorities. In Re Ross, the COL rules of forum refer to the law of the situs, by which the will is invalid under it, but following the COL rules of the situs, the will is valid by the domestic law of the forum. It could be said the authorities of the situs are likely to concur with the judgment since by applying total renvoi, the case is decided according to the same domestic law that the court of the situs would apply. However, as Dicey and Morris argued that, the lex situs rule for immovable property has been abandoned in most civil law countries. Furthermore, the draft of Hague Convention, which did not came into force as expected due to the World War I, similarly suggests the abandonment of the lex situs rule for immovable property.

The doctrine of renvoi can be utilized as a convenient expedient to avoid the application of a foreign law that would lead to an undesirable result. The English court in the case of Collier v Rivaz has taken into account the Belgian COL rules to achieve the ‘just’ result, without mentioning the term ‘renvoi’. Abhishek Bharti in his research pointed out that the result in Collier v Rivaz could not have been arrived if the English had refused to take into account the Belgian COL rules, and had merely applied Belgian domestic law.  Collier v Rivaz was disapproved by the Privy Council in the case of Bremer v Freeman, nevertheless, it demonstrates how the doctrine can be a useful tool in enabling courts to reach what they perceive to be a just result. Briggs also suggested that renvoi is a way of avoiding an unattractive and unjust result.

Briggs, in defending the doctrine of renvoi, was of the opinion that the doctrine of renvoi shall be added to fixed rule of jurisdiction. It was claimed that it could enhance the role of choice of law rules in preventing unwarranted forum shopping. Furthermore, by referring both of the COL rules and domestic law of the foreign country, English court would have a clear pointer in the direction of the natural forum. He viewed the choice of law not merely as the appropriate applicable law, but also a stepping stone to determine jurisdiction. For example, if the English COL rules refer to the French law, but the French choice of law tends to invalid a will, then we may treat the French COL rules, which refer to the English law, as a sign to the application of renvoi.   

Argument against renvoi

Dicey and Morris have pointed out that there is a major difficulty in the application of renvoi, namely the application of renvoi requires proof not only of foreign choice of law rules, but also of the foreign rules about renvoi. There is difficulty for English court in proving this. As Wynn-Parry J in Re Duke of Wellington commented that the doctrine makes everything dependent on the evidence of foreign expert. Furthermore, the evidence of foreign experts on foreign law will significantly increase the cost of litigation.

Clarkson and Hill have pointed out two practical difficulties in the application of renvoi. 

• As far as COL concerns, a ‘country’ is any territorial unit having its own separate system of law, whether or not it constitutes an independent state personality. England, Scotland and Northern Ireland are separate countries because they have separate legal systems. Hence, if the COL rules of the foreign country refers to the lex patriae, and the person concerned is a national of the UK or some other state consisting of more than one country in the context of COL, it would be uncertain that which system of law is applicable. In fact, many continental lawyers do not even understand the difference between ‘British’ and ‘English’ (for example the expert witness in the case of Re Askew), especially for those who came from a country which runs only one system of law.
• Another practical difficulty that Clarkson and Hill have mentioned is that, as in the case of Re Annesley, it would be ridiculous for the English law to assume what the French court would have decide, on an issue that is not even settled by the French court themselves.  

The application of renvoi may result in an outcome that is not predictable. It is clear that all countries have adopted their respective COL rules to settle the questions of jurisdiction and applicable law, for example lex domicilii for England and law of nationality for many civil countries such as France and Italy. The matters would be well-resolved by referring at the COL of the lex fori alone. However the application of renvoi allows the forum to apply the COL rules of foreign country, which would defeat the reasonable expectations of the person that the forum will apply their COL rules, rather than COL rules of a foreign country.

The doctrine of total renvoi, which is the one represents the present doctrine of the English courts, only apply if the foreign court is either rejecting renvoi or applying single renvoi. If the foreign court also applies total renvoi, the English court would have to attempt to resolve the case as the foreign court would do, only to discover that the foreign court would try to decide the case as the English court would do. This would create an inextricable circle and lead to a result that is, as described by Clarkson and Hill, a stalemate one.


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