Private International Law: Renvoi

Private International Law: Renvoi
Assuming court has jurisdiction, it decides if to apply local laws (lex fori), or foreign law, which connects case; choice of law rules
containing connecting factors, ex. domicile, points to applicable law (lex causae); if lex causae is foreign law court has three options:
 Foreign law can be interpreted to mean domestic, internal law; law minus PIL rules; here question of renvoi does not arise
 Foreign law interpreted to mean domestic law plus PIL rules minus rules on renvoi; here judge applies single renvoi
 Foreign law interpreted to mean law which foreign judge apply to decide case; includes domestic law + PIL, including rules on
renvoi; judge applies double renvoi
Domestic Law: court interprets reference to foreign law as reference to its internal, domestic law (no question of renvoi); court will
not examine PIL rules of foreign country, but simply applies domestic law of that country (assumption: when man resides in foreign
land, permanently resides there, inference is that he intended that internal, domestic law of foreign country governs his affairs)
Single or Partial Renvoi: where judge interpret reference to foreign law as reference to whole law, domestic + PIL, minus rules on
renvoi here judge applies single renvoi
 Renvoi: technique for solving problems which arise out of differences b/w connecting factors used by En law, and that of law to
which En connecting factor leads (Collier) – i.e. where two countries use different connecting factors for same legal categories
 Renvoi applies where (1) PIL of local country refer to law of foreign country, and (2) court of local country interpret reference as
one to foreign country’s PIL rules, but (3) PIL of foreign country would decide case by law of local country or some third country
o Where PIL of foreign country refers case to starting point process called remission; where foreign country refers to third
country process called transmission – if accepted, applies single renvoi
o Effect of single renvoi: local court refers to PIL of foreign country, then applies domestic law or law of third country
 Note: single renvoi not regarded as part of current En law
Double or Total Renvoi: court interprets reference to law of foreign country as reference to PIL including rules on renvoi; court
seeks to decide case in exactly same manner as foreign court; local court “don the mantle” of foreign judge; local court must apply
foreign country’s renvoi rules in order to decide case in exactly same manner as foreign court; result differs depending if foreign court
accepts, rejects renvoi – double renvoi depends on proof of PIL, but also rules about renvoi
 Re Annesley: case introduced double renvoi into En law in 1926; Mrs. Annesley, British national died domiciled in France (in
eyes of En law), and domiciled in En (in eyes of French law); question arose who entitled to movable property in En; En choice of
law rule referred question to Fr law; Russel J: interpreted reference to Fr law as meaning law which Fr judge applies if he decides
case; question arose whether Fr judge would reject renvoi and apply En domestic law or it would accept it and therefore apply Fr
domestic law; given than Fr judge would accept renvoi and apply Fr domestic law, Russel J applied Fr domestic law (note France
accepts single renvoi)
 Re Ross: illustrates where foreign country rejects renvoi; deceased, Mrs. Ross, British national, died domiciled in Italy, leaving
movable property in En; She excluded son in will from movable estate situated outside Italy; will was valid by En law, invalid by
Italian law; question arose whether En court should apply En law or Italian law; En choice of law rules referred question of
succession to Italian law; Italian choice of law rules referred question back to En; evidence was that Italian court would reject
doctrine of renvoi and apply En domestic law; accordingly, En court held En domestic law applicable (note effect is opposite
where foreign court rejects renvoi)
 At CL, rule is that renvoi is not applicable to contract law
o Amin Rasheed Shipping Corporation v Kuwait Insurance Co: Lord Diplock: proper law of contract is “substantive law of
country which parties chose as that by which their mutually legally enforceable rights are to be ascertained, but
excluding renvoi, whether remission or transmission
o Rome Convention on Law Applicable to Contractual Obligations: Art 15: application of law of any country specified by
this convention means application of rules of law in force in that country other than its rules of PIL
o Renvoi applicable to interstate succession to movable, intrinsic or essential validity of wills, whether person has capacity
to marry
Advantages of renvoi
 Use of renvoi achieves uniformity in decisions; if not applied, determination of person’s rights depends on where action brought;
result is conflicting decisions, poor justice; if local courts decide in same way as foreign court by using PIL result is uniformity
 Through use of renvoi legitimate expectation of person might be achieved
Disadvantages of renvoi
 Application of domestic law of foreign country could defeat reasonable expectations of person, constitute negation of policy
underlying En PIL rule; i.e. 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 did not make will b/c he believed his property would
devolved according to local rules governing interstate succession may be defeated
 Total renvoi difficult to apply; requires that local court ascertain as facts the precise decision that foreign court would render;
local court must obtain prevailing view in foreign country on doctrine of single renvoi; it may be difficult to prove especially
where the point may not yet be litigated; difficult to acquire info from reliable experts
o Wynn-Parry J in Re Duke of Wellington: “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 difficulty arising where foreign law refers to “nationality; easy for unitary states, but problematic for federal states
o Re O’Keefe: assumed national meant law of domicile of origin; woman, 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, governed by national law; it rejected renvoi; Crossman J: law of woman’s nationality
understood to mean part of British Empire to which she belonged; Southern Ireland; her nationality was Southern Ireland
 Note: for doctrine of renvoi to be successfully applied, foreign court must either reject renvoi or adopt only single renvoi; in
cases where foreign court accepts double renvoi, renvoi will move to, fro from local to foreign creating no solution; problem
called circulus inextricabilis
Differences b/w single, double renvoi:
 Morris: differ in starting point b/c single renvoi does not require courts to inquire how foreign court would decide matter, nor
consider possibility that foreign court might accept renvoi; differ in result b/c if foreign law refers to law of forum, that law
invariably applied under single renvoi but not invariably applied under double renvoi (depends if foreign country accepts renvoi)
 Single renvoi country does not take into account foreign country’s renvoi rule; not influenced by considerations if foreign court
would have accepted renvoi, applied its own domestic law
 Note: difficulty of proof: double renvoi requires proving foreign law, but also foreign renvoi rules