ASSIGNMENT ON PRIVATE INTERNATIONAL

LAW

SUBMITTED BY-

NAME- SUBHAM DEY

COURSE- LL. B (H) [3ND YEAR]

ROLL NO- 1705230010

TOPIC- THE DOCTRINE OF RENVOI IN PRIVATE INTERNATIONAL

LAW
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Dr.

ARCHANA VASHISHTH who gave me the opportunity to do this wonderful
project on the topic “The Doctrine of Renvoi in Private International Law”
which also helped me in doing a lot of Research and i came to know about so
many new things I am really thankful to them.

THANK YOU
 TABLE OF CONTENTS

Acknowledgement

Introduction

History and Definition

Types of Renvoi

 Partial or single Renvoi

 Total or double Renvoi

Advantages and Disadvantages of Renvoi

 Advantages:
 Disadvantages:

Conclusion

Bibliography
 The Doctrine of Renvoi in Private International Law

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.

2
(1930) Ch. 377
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. 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

3
[1930] 2 ch 259
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
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.

4
[1926] ch 692
5
[1841] 2 Curt-855
This theory of double or total renvoi or it might be known as the foreign court theory is
obviously stopped not quite the same as the theory of single or partial renvoi in light of the
fact that, by inquisitive how the foreign court would chose the case.

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.

Advantages:

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

A. 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.

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

C. 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;

B. 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.

C. Another difficulty arising where foreign law refers to nationality; easy for unitary states,
but problematic for federal states.

D. 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.

E. Another, that renvoi subordinates English choice of law rules to those of a foreign system.

F. 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

Difference in starting point between single renvoi and double renvoi, single renvoi does not
oblige courts to ask how foreign court would choose matter, nor consider probability that
foreign court may accept renvoi; distinction in result between both is that, if foreign law
alludes to law of forum, that law constantly connected under single renvoi yet not perpetually
connected under double renvoi (depends if foreign country accept renvoi) Single renvoi
country does not consider Foreign country's renvoi rule; not impacted by contemplations if
foreign court would have accepted renvoi, connected its own domestic law. The double
renvoi teaching is utilized as a part of England and France rest of the Europe is taking after
single renvoi theory. Presently a days the English Courts are regularly utilizing the Double
renvoi theory and not give so significance to signal renvoi by utilizing double renvoi the
Judges of English courts ventures into the shoes of the judge of the foreign country and
considered that the renvoi may have been accepting utilizing the conflict rules of the forei for
choosing the case.
 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)