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.
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:
- 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
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
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.
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.
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.
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
- 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
Re Annesley Case :- 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.
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.
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
Cases For Non-Applying Renvoi:The renvoi doesn't apply within the following cases:
- 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./
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
- 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.
- When the second degree renvoi does not allow the determination of the
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.
- By retorting to foreign choice of law rules, the courts avoid a foreign
internal law that has no connection with the porositus
- Some times it promotes the reasonable expectations of the parties
- 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.
- Application of domestic law of foreign country could defeat reasonable
expectations of person
- There are some practical difficulties involved in the application of renvoi.
- Another difficulty is when foreign law refers to nationality; easy for
unitary states, but problematic for federal states.
- Another practical problems with the doctrine that it generally requires
detailed expert evidence about the state of foreign law.
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.
- Oxford Dictionary of Law on Renvoi
- Renvoi in Australian Law Dictionary
- 140 U.S. 453 (1981)
- 1926 Law Reports Chancery 692