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Doctrine of Renvoi

Definition of Renvoi
The Doctrine of Renvoi is a legal doctrine which applies when a court is faced with a conflict of law and must consider the law of another state, referred to as private international law ("PIL") rules. This can apply when considering foreign issues arising in succession planning and in administering estates.

The word Renvoi comes from the French send back or return unopened. The Doctrine of Renvoi is the process by which the court adopts the rules of a foreign jurisdiction with respect to any conflict of law that arises. The idea behind the doctrine is that it prevents forum shopping and the same law is applied to achieve the same outcome regardless of where the case is actually dealt with. The system of Renvoi attempts to achieve that end.

Single Renvoi
Countries such as Spain, Italy, and Luxembourg operate a Single Renvoi system. This system refers to another jurisdiction's choice of law rules. Where the matter arises in a jurisdiction such as Spain, Italy or Luxembourg (A), those jurisdictions will consider whether their own domestic law is the applicable law or if the applicable law is that of another jurisdiction (B). Where B's rules might return the issue to A, (the original forum court), the court will accept the first remission and apply its own domestic laws.

For example, where a testator, who was a French national, was habitually resident in England but domiciled in Spain, dies leaving moveable property in Spain, the court may need to consider which legislative forum will apply to deal with the property under succession laws.

In this case, Spain being the law of the forum, i.e. where the property is situate, applies the law of the deceased's nationality, namely France and applies French law. French law observes the law of the deceased's habitual residence which is England. England however examines the domicile of the deceased, which is Spain.

As two transfers took place, (from Spain to France and from France to England), Spain, operating the Single Renvoi system, will not accept it back. Accordingly, the Spanish court being the law of the forum, will apply the law where it was last left in the chain of referral i.e. with the law of England and Wales.

Where both countries operate with either no renvoi system or single renvoi systems, there is a potential problem.

Double Renvoi
Unlike Spain, some countries such as England and France currently accept renvoi twice. However in this system there can never be more than two remissions.
For example, lets consider the following case whereby a testator, an Irish national, habitually resident in Spain but domiciled in Italy, dies leaving moveable property in France.
France, being the law of the forum (where the assets are situate) will examine the law of the deceased's habitual residence Spain and applies Spanish law. Spanish law observes the law of the deceased's nationality which is Italy. Italy, as a jurisdiction that only operates a single renvoi system, will not accept the Double Renvoi and it is likely that in this case France will apply Italian law.

The doctrine of total renvoi is difficult to apply
The said doctrine obliges the English judges to ascertain as a fact that the precise doctrine that the foreign court would give. This confronts him with two difficulties. First, he must ascertain what view prevails in the foreign country with regard to the doctrine of single renvoi. Secondly, where the foreign rule for choice of law selects the national law of the propitious, the judge must ascertain what is meant by national law.

The chosen law that emerges from the application of the doctrine depends on whether the doctrine of single renvoi is recognized by the law of the domicile. If the court of the domicile would accept the remission made to it by engish law, it would determine the case according to its own internal law; otherwise it would apply the internal law of England. This dependence of the right of the parties on the attitude of the law of the domicile to the renvoi doctrine is a cause of acute embarrassment. There are few matters on which it is more difficult to obtain reliable information not least because of the undue influence of expert witnesses over the process.

Alternatively, the English judge may be confronted with a somewhat arduous and invidious task, as witness the following remarks of WYNN-PARRY J:
It would be difficult to imagine a harder task than that which faces me, namely, of expounding for the first time either to this country or to Spain. Which up to the present time has made no pronouncement on the subject, and having to base that exposition on evidence which satisfies me that on this subject there exists a profound cleavage of legal opinion in Spain and two conflicting decisions of court of inferior jurisdiction[i]
The second difficulty that may arise is to ascribe a definite meaning to the expression national law. When a private international law rules of the country in which the English judge is presumed to sit select the nationality of a person as the connecting factor, it becomes necessary to correlate the national law with some precise system of internal law by which the issue before the court may be determined. This is a simple matter when the person is a national of some country such as Sweden, which has a unitary system of territorial law. There is a single body of internal law applicable throughout the territory known as Sweden. The position is far different where the country of nationality comprises several systems of territorial law, as is true for example of the United Kingdom and the USA.

For an English court the question is really pointless, because the law that governs a British subject in personal matters varies.

The case of Re O'Keefe[ii] has served to illustrate both the nature of the difficulty and the speciousness of the total renvoi doctrine.

Facts of the case where:
The question before the English Court was the way in which the movables of X, a spinster who died intestate, were to be distributed. X's father was born in 1835 in Ireland but at the age of 22 he went to India, except for various stays in Europe lived there throughout his life and died in Calcutta in 1885. X was born in India in 1860; from 1867 to 1890 she lived in various places in England, France and Spain' but in 1890 she settled down in Naples and resided there until her death 47 years later in 1937. About the year 1878 she had made a short tour in Ireland with her father. She never though lost her British nationality, but was held that she had acquired domicile in Italy.

The law selected by English Private International Law to govern the question of distribution was, therefore the law of her domicile. Had an Italian judge been hearing the case, however, he would have been referred to her national law by the Italian Civil Code. He would have rejected any remission made to him by the national law, since the single renvoi doctrine had not been adopted in Italy. The Civil Code used the general expression national law and failed to define what this means when the country of nationality contains more than one legal system. Which system of internal law, then, out of those having some relation to X, would be regarded by an Italian Court as applicable? The issue raised in the case was whether it was the law of England, Ireland or India.

Which of these systems would be the law of the country to which X belonged at the time of her death? She certainly didn't belong, whatever that may mean to England in the sense of attracting to herself English internal law, for she had spent no appreciable time in the country. She might, perhaps by reason of her birth in Calcutta, be regarded as belonging to India, though she had not been there for 70 years. The reasonable man might even be excused for thinking that she most properly belonged to Italy, the country where she had continuously spent the last 47 years of her; life.. CROSSMAN J, however, would have none of these.

He reverted to X's domicile of origin, and held that she belonged to Ireland because that was the country where her father was domiciled at the time of her birth. In the result, therefore, the succession to her property was governed by the law of the country which she never entered except during one short visit some 60 years before her death; which wasn't even a separate political unit until 62 years after her birth; of whose succession laws she was no doubt profoundly and happily ignorant; and under the law of which it was impossible in the circumstances for her to claim citizenship.

The convolution by which such a remarkable result is reached is interesting. Firstly, the judge is referred by the English Rule to the Law of Domicile, which in the instant case means the law of domicile of choice, then he bows to the superior wisdom of a foreign legislator and allows the law of the domicile to be supplanted by the law of the nationality; then, upon discovering that the law of the nationality is meaningless, throws himself back on the domicile of origin; thus determining the right of the parties by a legal system which is neither the natonal law or the law of the domicile as envisaged by the English rule for choice of law[iii], commenting on this is surely superfluous.

The conclusion having been fully established that the renvoi doctrine cannot be accepted as a general principle in the conflict of laws, we may briefly consider certain exceptional cases in which recognition that the lex fori should incorporate the foreign law inclusive of its rules of the conflict of laws may be either necessary or expedient. It has been found necessary to accept the renvoi doctrine in the framing of international conventions as the only means of bringing together nations with different rules in the conflict of laws.[iv]

Just Because of the favor shown to marriages, the lex loci celebrationis might be deemed to incorporate the foreign law as a whole for the purpose of sustaining a marriage, but not to defeat it. It would be preferable, however, if this result were reached through the adoption of an alternative rule in the conflict of laws.

It would seem that, by reason of the permanent and exclusive physical control which a nation has over immovable property within its territory, the validity of a conveyance of such property should be determined in accordance with the law of the situs as a whole. It would follow that if the law of the situs authorized the execution of a deed or will in _the form prescribed by the law of the place of execution, its validity should be recognized everywhere.

Uniformity might be reached without recourse to the renvoi doctrine if all countries would adopt alternative rules in their systems of the conflict of laws. As regards the formal execution of a deed or will, the general acceptance of the rule locus regit actum as an alternative rule would be sufficient.

With respect to capacity and the substantive validity of wills and deeds, international uniformity could be brought about only in case all countries were willing to sustain such instruments if they satisfied either the law of the situs or the national law of the owner. Under present conditions, the renvoi doctrine would appear to be the only practicable means by which such uniformity can be attained.

  1. Re Duke of Wellington [1947 Ch 506 at 515]
  2. [1940] Ch. 124 See Nadelmann (1969) 17 AJCL 418, 443-448.
  3. (1940) 56 LQR 144 at 46.
  4. Art. I on The Hague Convention of June 12, 1902.

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