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The Doctrine of Renvoi in Private International Law

The doctrine of renvoi is one of the most significant and fundamental subject of private international Law or conflict of Laws, Because sometimes court sees that the issue will be chosen in accordance with the law of another nation, it's the time when regulation of renvoi assumes it's job in taking care of the difficulty.

It's a method to take care of the cases in which there exist foreign elements.

In this present Project paper, we discussed in some details, the definition, natures, advantages, disadvantages &other important issues related to the doctrine of renvoi and its implications in private international law.

Meaning & Definition:
The Renvoi Doctrine is the process by which the court adopts the rules of a foreign jurisdiction with respect to any conflict of laws that arises . The ideas behind the doctrine is to stop forum Shopping and there for the same law is applied to realize an equivalent outcome no matter whether the case is really addressed.

Renvoi is a French Word, which indisputably means  to send back or return. Jason Chuah defines renvoi in simple way and also very scholarly.
He rightly remarks:
As per this theory, an English judge who is referred by English legal system to a foreign legal system must apply whatever law a court in that foreign system would apply Naturaly, this depends on whether or not that foreign system recognizes the doctrine of renvoi

Categories of Renvoi:

Partial or 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 previous . Under the cautious eye of a judge resort to the principle of renvoi, there is a solution of application of internal law only. But if there was no space for application of internal law, then judge may apply proper type of renvoi.

Renvoi has two types:

  1. Partial or single renvoi:
    Nations,for example,spain,Italy and Luxembourg work a Single Renvoi framework. For instance, where a deceased benefactor, who was a French national, was an incumbent in England yet domiciled in Spain leaving moveable property in Spain, the Court may have to think about which authoritative discussion will apply to manage the property under progression laws.

    In single renvoi, a judge of a country is faced with conflicting rules of his country is faced with conflicting rules of his country and sends the case to the foreign country but according to the law of that country ,the case is referred back to his country and his country accepts sub references and applies the law of his country.

    In re Ross[1]
    the testatrix (A one that writes the will)was a British national , who was domiciled in Italy and had written a will leaving the land in Italy and therefore the movables both in Italy and England. Where will was valid in England but not in Italy because she had not left half her property to her son.

    Judgement
    In this pioneer verdict the Court had applied the law regarding where the property is situated. The movables in Italy because the testatrix (the one that writes the will) holds the Italian domicile. As a result, the Judge had applied the Italian law with reference to the immovable property situated in Italy. As It was not acceptable by the Italy that the renvoi based issue was decided in accordance with English law.

    Forgo case
    A Bavarian national demised in France, where he had animated since the age of 5. Where under the Bavarian law the collateral relatives were entitled to succeed, but under the french law the property are going to be passed to the French government but to not the family members.

    Judgement
    The French Court held that it might decide the inquiry by applying Bavarian law however the State contended that the Bavarian Courts would apply French law, and therefore the French Courts ought to do otherwise. The case was ruled for the French state, and therefore the reference here was to the Bavarian guidelines of contention.
     
  2. Double or Total Renvoi:
    Total or double renvoi is additionally referred to as foreign court theory. Some Sovereign States like Spain, England, and France follow double renvoi. For instance, let's look into the concomitent case whereby a deceased benefactor, an Irish national, residing in Spain, however, domiciled in Italy, died and left some immovable property in France. France, being the law of the gathering (where the advantages are arranged) will scrutinize the law of the person who died. Spanish law follows the law of the deceased nationality which is Italy. Italy, as a ward that just works a solitary renvoi framework, won't acknowledge the Double Renvoi and almost certainly, imidiately will apply Italian law.

    Re Annesley Case[2] :- An English woman was domiciled in France for 58 years at the time of her death. As per English Law Principle, she was domiciled in England. Before her death, she made a will, where the will was valid as per English law, but it was not valid as per the French law because she did not leave 2/3rd of her estate to the youngsters. French law states that 2/3rd of the property goes to their heirs. Where the France Court didn't issue any authorization certificate that she was a French domicile which was necessary for the acquisition of domicile.

Judgement
It was pronounced by the court in his judgement that they had applied the French law as she was holding the French domicile at the time of her death. Stationed on that, the English Courts refer the matter to the French law system as the law of domicile and the French law also referred the same back to England as single renvoi is recognized in France. Therefore, the French Court would accept the Remission and have applied the international law.

No Renvoi:

Sovereign States like Denmark, Greece and the United States of America do not accept double renvoi.

Brussels IV: The European Union Regulation On Succession:
This new European Union Succession law, effective from 17 August 2015 attempts harmonization of succession of all member States in determining the forum that applies to succession laws. European States like Ireland, UK, and Denmark have pulled out of this regulation, although interestingly the regulation will still have an impact on how these Countries will deal with the signatory States and how signatory States will influence the non-signatory States.

In reference to the Doctrine of Renvoi, the regulation attempts to supply that in all EU Member States (other than Ireland, UK, and Denmark), the doctrine is abolished abide from the case of third party States. It also provides for testators to dub the law of their nationality as applying to the integral part of their estate. The regulation will only affect deaths on or after 17 August 2015 however a private may elect the law under their will now to apply after that date.

Cases For Non-Applying Renvoi:

The renvoi doesn't apply within the following cases:
  1. In the matter of autonomy of will, when the parts have chosen the law applicable to their contract, in the absent of willpower demonstration , it is assumed that they agreed of willpower manifestations, it is assumed that they agreed to choose the existing arrangements for that contract in that specific system of law.[3]/

    From the principle of the greed autonomy results the very fact that, within the matter of the contract reports, if the suited law was chosen, it's off cast the renvoi when an act of will of the parties is missing in this case.

    Even Supposing there might happen the fact that the conflict norms of a country to whom the suited law applies would not admit the competence for this law, it must do a remit, it won't be taken into consideration the stipulation of this conflict norm, because we will assume the very fact that the parties have found out to settle on the existent regulation for that contract in that particular law system, with the exclusion of its conflict norms.
     
  2. When applying the locus regit actum. In this case, the remission made by the conflicting norm regards the law stipulation made by the conflicting norm regards the law stipulations of the place where the act was completed regarding it's outwards form, without taking into account the conflicting norms of the legal system in question.
     
  3. When the second degree renvoi does not allow the determination of the applicable law.

Advantages & Disadvantages of Renvoi:

There are some scholars who focused on the advantages of this doctrine and see it as a useful doctrine and a proper solution. And on the other hand some jurists are against it.
Advantages:
  1. By retorting to foreign choice of law rules, the courts avoid a foreign internal law that has no connection with the porositus
  2. Some times it promotes the reasonable expectations of the parties
  3. It is generally 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 transfer. It prevents the forum shopping.
Disadvantages:
  1. Application of domestic law of foreign country could defeat reasonable expectations of person
  2. There are some practical difficulties involved in the application of renvoi.
  3. Another difficulty is when foreign law refers to nationality; easy for unitary states, but problematic for federal states.
  4. Another practical problems with the doctrine that it generally requires detailed expert evidence about the state of foreign law.

Conclusion:
After we've gone through history, meaning, types, and points of interest of renvoi it's critical to recollect that it doesn't make a difference to all or any cases. It's an established fact that doctrine of renvoi can't be treated as a general principle in the conflict of laws. As Abla Mayss remarked on it: renvoi applies to inquiries of interstate progression and fundamental legitimacy of wills. There is some power such that it applies to marriage which it need to apply to cases including title to movable and immovable property.

Rather to say it's a system by which the Court adopts the rules of a foreign jurisdiction for any conflict of law that arises. Renvoi does not, however, determine a spot in the fields of contract or tort. And if there's no renvoi the court will apply the Interior law.

References:
  • https://legal-dictionary.thefreedictionary.com/private+international+law
  • https://www.pearse-trust.ie/blog/bid/110454/the-rule-of-doctrine-of-renvoi-explained
  • https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5565&context=fss_papers
  • Oxford Dictionary of Law on Renvoi
  • Renvoi in Australian Law Dictionary
  • http://www.hcch.net/index_en.php?act=conventions.text&cid=31
End-Notes:
  1. 140 U.S. 453 (1981)
  2. 1926 Law Reports Chancery 692
  3. http://www.hcch.net/index_en.php?act=conventions.text&cid=31

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