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PIL Doctrine of Renvoi

This document discusses the doctrine of renvoi in private international law. It begins with an introduction to private international law and its role in regulating transactions between citizens of different countries. It then defines renvoi as referring a case back to the laws of another jurisdiction. There are three types of renvoi: single renvoi, double renvoi, and no renvoi. The document analyzes several cases that applied the doctrine of renvoi and concludes with a critical analysis of renvoi's weaknesses, such as a lack of certainty and predictability.

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2K views

PIL Doctrine of Renvoi

This document discusses the doctrine of renvoi in private international law. It begins with an introduction to private international law and its role in regulating transactions between citizens of different countries. It then defines renvoi as referring a case back to the laws of another jurisdiction. There are three types of renvoi: single renvoi, double renvoi, and no renvoi. The document analyzes several cases that applied the doctrine of renvoi and concludes with a critical analysis of renvoi's weaknesses, such as a lack of certainty and predictability.

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PRIVATE INTERNATIONAL

LAW
Doctrine of Renvoi

VIVASVAN GAUTAM
ROLL NO.902
SECTION C
LLB 3 YEARS
Doctrine of Renvoi
Introduction to Private International Law
Private International Law is one branch of the diverse laws under
which the private citizens of various countries do transactions
and interact with each other. It is a structure of conventions,
guides that help regulate relations across national borders.
It has a dualistic nature of balancing international harmony as
well as balancing sovereign actions with those of the private
sector.
Private International Law is a piece of law which deals with
private populaces of various nations. International laws are
different for every country.
Those are the rules made by the nations to decide the
communication with autonomous countries.
Each country has their own principles according to which they
decide the scope of the law.
Unification of substantive law and its conflicts both come under
the ambit of Private International Law.
It addresses the issue of a broad spectrum of legal concerns.
It includes diverse issues like child abduction, wills and trusts,
sales contracts, enforcement of foreign judgments, negotiable
instruments etc. these issues are limitless to the attorneys with an
international practice.
It has become both the development of multilayer international
agreements in setting rules as well as other means to harmonize
and unite substantive law.1
Introduction to Renvoi
In French “Renvoi” means “send back” or “return unopened”.
When any conflict occurs, which is considered to have law of
another state referred to as Private International Law.
The Doctrine of Renvoi is a legal doctrine which is thereafter
applied in the court.
It is a significant and elementary subject of Private International
Law or Conflict of Law.
This is applied in foreign issues of succession planning and
administering estates.
The Doctrine of Renvoi is the process by which a court adopts
rules of a foreign jurisdiction with any conflict of law.
It is a method used to take care of cases existing in foreign
elements.
The idea used behind the doctrine is that it prevents forum
shopping and the same law is used for cases regardless of what
the case actually is.
It attempts to achieve the end.

Types of Renvoi

1
Rogers, P. (1989). Private International Law. The International Lawyer, 23(1), 207-212. Retrieved June 2, 2020, from
www.jstor.org/stable/40706230
While under a Judge if there is no space left to use law, which is
under Jurisdiction of a nation, at that point the judge may apply
the best possible kind of Renvoi.

1. Single Renvoi
This system refers to laws which are chosen from others’
jurisdictions.
Countries like Spain, Italy, Luxembourg use a Single Renvoi
system.
In their jurisdiction where the matter arises in (A), those
authorities will consider whether their own domestic law is the
applicable law otherwise if it is applicable in Jurisdiction (B) its
rules will be then applied to bring it back to (A) the court will
accept the reduction and apply its own domestic laws.

2. Double Renvoi
Countries like England and France accept double Renvoi. Where
the court of (A) applies the law that the court (B) would apply if
the matter came before it.
This system uses two or more remissions.
For e.g. let’s consider the case where a testator, an Irish national,
who is habitual resident of Spain but domiciled in Italy, does
leave moveable property in France.
France has a forum that examines the law of the deceased’s
habitual residence Spain and applies Spanish laws.
Spanish law observes the deceased nationality which is Italy.
France will apply Italian law in this case as Italy has a
jurisdiction operating a single Renvoi system
3. No Renvoi
Countries like Denmark, Greece and the United States do not
accept Renvoi.2

Procedure for Conflict Cases


The court at first place must decide whether it has the
jurisdiction to hear the given case which includes addressing the
questions of whether the plaintiff is attempting to manipulate the
judicial system by forum shopping.
Next step is characterization, which is the court analysis of cases
as pleaded and allocated components to its appropriate
classification which has one or more choice of law.
The court will thereafter apply the choice of law rules.
In certain issues like family law, incidental questions emerge
complicating the process.
Application of Renvoi
The scope of Doctrine of Renvoi is very limited because of its
unpredictability. It is applied in validity of wills and intestate
succession i.e. Transfer of property and retrospective legitimacy
of marriage of natural parents i.e. validity of divorce decree.
2
Paliwala, M. (2020, February 9). The elaboration of the Doctrine of Renvoi in Private International Law. Retrieved from
https://blog.ipleaders.in/doctrine-of-renvoi/
However, there are also states which apply these two issues in
family law.
Judgements related to Doctrine of Renvoi.
In re Ross3

In the above-mentioned case, the testatrix was British citizen,


she was domiciled in Italy and had written a will leaving the land
in Italy and the movables both in Italy and England.
The will was valid in England but not in Italy as she had not left
half of her property to her son.
The court applied the law regarding where the property is
situated. The movables in Italy because the will writer’s
nationality was Italian.
So, the judge applied the Italian law with respect to the
immovable property situated in Italy because Italy does not
accept the Renvoi based issue in accordance with English law.
Forgo case4

In this case a Bavarian national died in France, he lived there


from the age of 5 year. According to Bavarian law the property
was passed to the relatives, but in French law it will be passed to
the government and not the family members.
The French court held that it would entertain the enquiry
according to Bavarian law. The case was ruled for French state
and the reference was the Bavarian guidelines.

Re Annesley5
3
140 U.S. 453
4
Schreiber, E. (1918). The Doctrine of the Renvoi in Anglo-American Law. Harvard Law Review, 31(4), 523-571.
doi:10.2307/1327886
5
[1926] Ch 692
This case is a Renvoi case of property. A 58-year woman was
domiciled in England, she was also a French domiciled as she
died there.
The case was invalid under the French law as she did not leave
two third of her property to her hire. Which is mentioned in
French law.
The English court applied for an authority certificate of domicile
for the women as during her death she was a domicile of France.
Based on it the English court referred the matter to the French
court because she was domicile of France during death. France
has single renvoi rule and they referred the case back to England.
Therefore, the French court would accept the remission and have
applied the internal law.

Critical Analysis of Renvoi

After looking into the definition, types, and points of interest of


Renvoi. Critically it can be said that it does not make a
difference to all cases.
Renvoi does not discover a spot in the fields of contract or tort
and anyways if there is no Renvoi the court has to apply internal
laws.
Despite logical fallacies, this foreign court doctrine has British
and American scholar’s support. Fundamental rules of choice of
law are hindered under the obsession of this Doctrine of Renvoi.
Basically, this Renvoi Doctrine has been relied upon to enable
Utopian courts to enforce rights acquired in Ruritania.
The rights cannot exist outside the territory of the Law system
that created it unless it is recreated by foreign law.
Even when a court intends to apply the Renvoi Doctrine it must
rely on foreign experts’ information to what the foreign law is.
This need creates an element of inefficiency and oddness in the
court’s procedure.
This is also dangerous for a court to apply alien laws of which he
does not have elementary ideas as certain degree of distortion is
ordinally unavoidable in applying foreign rule. Thus, it appears
that no forum can be relied upon to apply substantive foreign
country law in an entirely consistent manner.
This problem is complex when the court seeks to apply foreign
choice of law rules. All these reasons often raise the judges to
employ either foreign or domestic law to their personal view
whichever is the better fit.
The court ends up introducing its own doctrine of public policy
in the guise of interpreting foreign choice of law.
However, if the court feels that it is better to apply the Lex fori
than foreign rule it may reject the foreign law.
The logical and the evidential problems accompanying the
Renvoi in fact may prove to be effective guises for judicial
eclecticism and law reform.
Though judicial law-making is commendable towards Lex fori
they should not provide this opportunity just because it includes
a foreign element.
Briefing above instances it is apparent that the Renvoi doctrine is
subject to many weaknesses.
In light of these criticisms it is difficult to support utilizing this
doctrine as a technique for the choice of proper Lex causae.
It is devoid of certainty and predictability of a court of law6

6
Choice of Law and the Doctrine of Renvoi Stanley B. Stein. (n.d.). Retrieved from https://lawjournal.mcgill.ca/wp-
content/uploads/pdf/246462-stein.pdf

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