ASSIGNMENT

QUESTION:
THE RENVOI DOCTRINE/THEORY AND ITS APPLICABILITY IN NIGERIA

SUBMITTED BY:

AROHUNMOLASE KOFOWOROLA [MATRIC NO: 09/LAW01/02 !

Lecturer in Charge:

INTRODUCTION

In the private international law or conflict of laws, the French term renvoi refers to the application of the conflict rules of one state by the court or tribunal of another state, in order to solve a conflict of laws problem. Renvoi was developed in the 12th century, as a reaction to the territorial theory in an effort to secure greater uniformity and equity in conflicts decisions ( illiam !etley".#arious rules have been evolved for different situations to assist the courts to determine whether they have $urisdiction and to what legal system they should loo% for the principles to decide the point of issue in a foreign element case. !hat is, matters having foreign element. !he relevance of the doctrine of renvoi may be illustrated as follows& when the forum courts has ascertained the applicable foreign laws with the aid of the appropriate rule of selection, it may do one of the following three things. i. It may determine the issue under the internal law of the foreign system to ascertained, e'cluding its conflict rules. !his is also %nown as internal law theory. !he climate of academic opinion in (ngland favours this approach (i.e. )orris, *raveson and +heshire $ust mention few". ii. ,econdly, the forum may refer the issue to the conflict rules of the le' causae. !hat is, such a rule may concur in the application of its internal law, where this occurs, the internal law of the le' causae is inevitably applied. -t this $uncture, the conflict rule of the le' causae may refer the issue bac% to the forum law or transmit it to a third system. Renvoi may mean to remit or transmit. iii. !hirdly, the forum court may dispose of the issue as it would have been determined by the courts of the .e' causae. !his approach has been applied in a number of /igh court decisions and considered to represent the current (nglish practice. THE ENGLISH PRINCIPLE OF RENVOI

Renvoi is by no means so important in the choice of law as scholastic literature, both by its quantity and quality, would seem to suggest. !wo matters require to be considered in relation to renvoi 0 its meaning and the e'tent of its application. Renvoi, meaning 1remission2 or 1referring bac%2 or to return. In legal palace, it is not confined to remission but includes 1transmission2 or 1reference forward2. Renvoi may thus be said to occur when either a reference is made from one legal system to another and that second system refers bac% to the first, or when the reference to the second system is followed by a reference therefrom on to a third. It results from a choice which is not confined to the domestic rules of the system selected but one which includes the conflicts of laws principles of the system chosen ( ebb 3.R./, 1456". (very rule of private international law has two parts, usually styled as the 7operative facts8 and the 7connecting factor8. !he former designates the type of problem raise, the latter is guide to the system by whose rules its solution is to be found. /owever, in the capacity rule cited above, capacity to many is the operative fact9 domicile is the connecting factor. (!homas :-+, 14;;". APPLICATION OF THE THEORY/APPROACH" !he question is 7how this theory (<.2.<" wor%s in practice= !he effectiveness of the approach can be seen by comparing two leading cases. !hat is& in Re -nnesley& In this case 1!, a >ritish sub$ect of (nglish domicile(s" of origin died domiciled in France in the (nglish sense, but not in the French sense she left a will that purported to dispose of all her property. >y French law 1!. could dispose of only one third of her property because she left two surviving children. (vidence was given that a foreign court would refer to (nglish law as !8s national law and would accept the renvoi bac% an !8s will was only effective to dispose of one?third of her property2.

In Re?Ross on the other perspective& In that case, 1!, a >ritish sub$ect domiciled in Italy died leaving movables in (ngland and Italy and immovables in Italy. ,he left two wills, one in (nglish and the other in Italian. >y her (nglish will gave her property in (ngland to her niece @. >y her Italian will she gave her property in Italy to her grand?nephew A, sub$ect to a life interest to her mother @. ,he left nothing to her only son B. B claimed that by Italian law, he was entitled to one half of !8s property as his 7legitima portio8. APPLICATION OF THE RENVOI DOCTRINE IN NIGERIA" -gbede I.C. pointed out that it will be relevant to ma%e two observations on the application of the renvoi doctrine in Digeria. i. -ll the cases where the renvoi doctrine were decided on adoption by the /igh +ourt :udges. !his may be that& 1that when the doctrine with all its consequences is squarely presented before the /igher (nglish +ourts, they will not hesitate to re$ect the decisions of the court that have lent colour to renvoi in the (nglish law2. ii. !he second decisions where the total renvoi doctrine was adopted as a rule of (nglish law were ta%en after the 1reception?date2 of (nglish law into most common law $urisdictions in -frica. /owever, the courts of these countries are not bound to adopt it. In respect of this argument some scholars have rightly observed that& 1If therefore the foreign court theory is part of the law of -ustralia it is not by virtue of any binding or compelling authority but simply by reason of a common $udicial assumption since 141E. it would be well for -ustralian courts to realiFe this in order to prevent an automatic and unthin%ing application of doctrine. 1(Dygn et al (145G" conflict of laws -ustralia".

REFERENCES 1. Amin Rasheed Shipping Corporation v. Kuwait Insurance Co H14GIJ 1 -.+. ;6 (/..."

2. Neilson v Overseas Projects Corporation of ictoria !imited & Renvoi and 3resumptions about Foreign .aw (2665" <6(1" "el#ourne $niversit% !aw Review 2II <. Ignored No "ore& Renvoi and International !orts .itigated in -ustralia (266;" 1(1" &ournal of Private International !aw <; I. !he Kses of 3utativity and Degativity in the conflict of laws (266;" ;I International and Comparative !aw 'uarterl% G24 ;. (he )octrine of Renvoi in International (orts* "ercantile "utual Insurance v Neilson +,--./ 01 !orts .aw :ournal 0 5. !urance /mb. (14;G" +onflict of .aws ,weet a )a'well .td .awlon. E. -gbede I.C.G4" !hemes on +onflict of .aws ,hanesan +.I .td -%e%a, .agos. G. ebb I.R./ (,upra" illiams !etley (,upra" !orrance /.).> (,upra"

4. 3rof. 16.