Being one of the most theoretically challenging concepts in private international law, generations of conflict-of-laws scholars have debated the question and concept of Renvoi. It is the instant topic under study in the due course of the research paper. Renvoi is a French term which literally means sending back. In precise terms, when the choice of law process points a forum court to another jurisdiction’s law, the question that arises is: how much of that other jurisdictions’ laws should apply? Does the reference to the other law include that jurisdiction’s choice of law principles, or, alternatively, does it include only the jurisdiction’s “internal law” principles? If the reference includes both internal law and conflicts principles, the foreign conflicts principles may point the inquiring court back to the forum’s law or to a third jurisdiction’s law. This question, whether a forum should consult the choice of law rules of other jurisdictions is called renvoi.
The renvoi is an institution of Private International Law that allows the possibility for the foreign law declared as competent by the conflicting norm of the forum court, to decide in turn, to make a renvoi through its own conflicting norms, to another law, either to the approached court’s law, or to the law of a different legal system. The renvoi implies a conflicting between conflicting norms. This conflict can be positive or negative. We can state the presence of a positive conflict between the conflicting norms (between the conflicting norm of the forum court and the foreign conflicting norm declared competent) when both conflicting norms stipulate that their own law is competent to regulate the judicial relation with a foreign element.
To limit the damage that would result from forum shopping, it is desirable that the same law be applied to achieve the same result no matter where the case is litigated. The system of Renvoi is an attempt to achieve that end. If a forum court is directed to consult a foreign law, the first question it must address is whether this is a reference solely to the relevant substantive provisions, or to the state’s system of law as a whole which would include its choice of law rules.
APPROACHES TO THE DOCTRINE
In the course of its development and towards finding a solution the doctrine of renvoi has been off late understood internationally on the basis of two approaches namely: The Traditional Approach and The Modern Policy-Oriented approach.
The Traditional Approach:
The traditional jurists are of the opinion that axiom of territoriality, the principle that “the law of a state prevails throughout its boundaries and, generally speaking, not outside them. They believe it impossible, in fact, for the law of one state to operate as law within the borders of another state. From this premise flows the conclusion that only the law of the state where an event occurred can attach legal consequences to that event, and choice of law becomes largely a matter of determining the place of occurrence. The traditionalists in this sense are therefore concerned with establishing “localising” rules to determine where, for example, torts are committed or contracts formed. This theory of territoriality, as propounded by the traditional thinkers, might seem to offer an easy answer to the renvoi problem.
The Modern Policy-Oriented Approach:
The controversy concerning the renvoi has abated in recent past, as scholars seem to have worked hard on the claims related to the doctrine of renvoi. In this regard, the Modern policy jurists or realists are of the opinion that in choice of law foreign choice of rules can be ignored as the legislative jurisdiction should be allocated based on the policies which mainly underlie the substantive laws at issue, and general choice-of-law rules were not developed with these policies in mind. Regarding this approach the experts have said that the fundamental insight of modern theory is that the applicability of a law is a pure question of interpretation. As most legislation does not specify its territorial scope, it hints at filling the gaps by reference to a law’s purpose. But states are free to adopt any different approach to interpretation if they deem it appropriate and in total accordance.
FORMS OF RENVOI
First-degree renvoi or single renvoi is that form when the foreign law refers to the forum law, and if the renvoi is accepted, the approached court shall apply its own domestic law. When the court of the forum has a choice to apply the foreign choice of law rules, accept the remission to its law by the foreign law and apply the law which it would have applied had the case been entirely domestic to the forum, or in the case of transmission, the domestic law of the third country. This requires proof of the choice of law rules of the foreign country but not of the foreign rules about renvoi.
Theoretically, the discussion of renvoi was determined by the Forgo case that consisted of the following elements: a Bavarian illegitimate child, named Forgo, was brought to France from the age of 5 years, and lived most of his life in France, without ever acquiring an official domicile, because he never met the French law conditions. Therefore, according to the French law, he remained a Bavarian citizen legally residing in Bavaria. After his death, multiple important movable properties remained, and his collateral relatives introduced to the French court “a petition of inheritance”. According to the French law, the movable succession was under the national law of the deceased (in the Bavarian national law), that stated the inheritance on maternal lineage for the collateral relatives. However, the French courts had established that the Bavarian conflicting norm regarding the movable succession sent back to the French law, because, according to the Bavarian conflicting norm, the movable succession is subject to the law of the deceased’s real domicile. Consequently, the Bavarian conflicting norm does not accept the sending but sends back to the French law system. Accepting the renvoi, the French court applied the French succession lay, according to which maternal side relatives were not allowed to inherit. Thereby, Forgo’s succession became vacant and the movable property located on French territory became part of the French State.
Second-degree renvoi or complex renvoi is that form in which the foreign law returns to a third state law and not to the law of the judicial forum. For instance, a Danish citizen (whose personal law is the law of the domicile) would reside and die in England and a French court would be informed about a dispute concerning his movable succession; the French law will refer to the national law of the deceased (the Danish law), that, in turn, refers to the domicile law (the English law), which accepts the renvoi. Finally, the English succession judicial system as the law of the deceased domicile will govern his movable succession. When the court of the forum may resolve the issue in the same manner as a court of the legal system selected by its choice of law rules might resolve it had the foreign court exercised jurisdiction in the same case on the same facts. This method requires proof not only of the choice of law rules of the foreign country but also the foreign rules about renvoi.
The renvoi does not apply in the following cases:
- In case of the autonomy of will, when the parts have chosen the law applicable to their contract. In the absence of willpower manifestations, it is assumed that they agreed to choose the existing arrangement for that contract in that specific system of law.
- When applying the “locus regit actum”.
- When the second degree renvoi does not allow the determination of the applicable law.
ADVANTAGES OF THE DOCTRINE
The following arguments in support of renvoi were brought in states’ laws or in jurisprudence:
- The need of interpreting the foreign law for the purpose of including the conflicting norms too.
- The foreign law has to be applied when it self-declares competent. Renvoi demands to be admitted; otherwise, it will mean that the foreign law will be applied to an area where it declares itself unqualified.
- The renvoi ensures the enforcement of judgments.
- Second degree renvoi can be a means of coordination of law system in the presence, if one of those law systems does not accept the renvoi.
- Renvoi advocates and opponents. Its advocates argue that by resorting to foreign choice of law rules, the court avoids a foreign internal law that has no connection with the propositus.
- It promotes the reasonable expectation of the parties.
- Renvoi produces a degree of uniformity of the decision, terms of the governing law at least, in cases where English choice of law rules put the premium in this, that is, where the lex situs is applied on the basis of effectiveness.
DISADVANTAGES OF THE DOCTRINE
- The appropriate conflicting norm is that of the judicial forum. In private international law there is a principle according to which the conflicting norm of the judicial forum is applied and not the one of the foreign law system, and if the renvoi is accepted, it would mean that this principle is no longer endorsed, as the competent court for solving the case would guide itself by the foreign conflicting norm to determine the appropriate law.
- The renvoi may lead to a continuously loop of new cases of renvoi (an inextricable circle
- The admission of the renvoi generates uncertainty regarding the legal solution. The renvoi cannot be accepted because it increases the uncertainty in private international law and constitutes an exception to the normal cases of application of the foreign law.
- It has been argued that the study of the cases indicate that English court concludes by subordinating its own choice of law rules to those of another country.
- The opponents of renvoi argued that having regard to the fact that nationality is the connecting factor most connecting factor most commonly employed in the civil law world, the English courts out itself in a position of being unduly influenced by nationality when there is no concept of English nationality having regard to the states of U.K.
- The application of the doctrine required to familiarize himself with the foreign internal law, the relevant choice of law rules and the policy, if any of the foreign law towards the doctrine law towards the of single renvoi.
It is important for us to know this institution, because when a juridical report with a foreign element generates a litigation, how will be solved that litigation if the conflict norms with whom the report has a connection, declares itself incompetent in solving the mentioned litigation. Thus, the renvoi intervenes when the conflict norm of the approached court of law sends to a foreign law system, and this, by its own conflict norm, does not receive the competence which is attributed to it and it either sends back to the law forum, or sends farther to the law of a third party state.
Furthermore, there are cases when the renvoi cannot function, when the court of law does not refer to the entire law system but only to some accurate material regulations. At the same time, the renvoi is not accepted in all law systems and when it is accepted there are cases when it cannot function: in the case of the will autonomy of the parties it is assumed that they referred to a certain law system with the exclusion of the possibility of renvoi, the citizenship – the determination of the citizenship excludes the possibility of the renvoi, the rule locus regit actum excludes the possibility of the renvoi, too because it is taken into consideration only the material disposals of the law of the place and not of the entire law system.
As a purely practical it would seem that a court should not undertake the onerous task of trying to ascertain how a foreign court would decide the question, unless the situation is an exceptional one and the advantages of doing so clearly outweigh the disadvantages. In most situations, the balance of convenience surely lies in interpreting the reference to foreign law to mean its domestic rules.
By – Medha PM
(Content Writer at Legal Bites)
- Berlingher Remus Daniel, The Renvoi in Private International Law, International Journal of Social Science and Humanity, Vol. 3, No. 1, January 2013
- Legal Rescue “The Significance Of Renvoi To Private International Law Particularly As Regards Partial And Total Renvoi” http://legalrescue.blogspot.in
- Pearse Trust Blog “The Rule of Doctrine of Renvoi Explained” https://www.pearse-trust.ie/blog
- “The Concept of Renvoi in the Conflict of Laws” https://www.scribd.com/
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