Doctrin of Renvoi

Its an important doctrine in Private international law, where the concerned court has the ascertain the principles of a foreign nation.

1. Conflict of laws doctrine of renvoi BY : ADV. CAROLINE ELIAS

2. RULE OF DOCTRINE 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 ( A party’s action of looking for a court or judge that is deemed likely to render a favorable result) 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.

3. Illustration: [ SIMPLE RENVOI ] ‘X’ a British national, domiciled in Italy, died intestate leaving movable properties in England & English Court has to decide how that properties are to be distributed. Three connecting factors in this case : (1) Nationality (2) Domicile (3) Place where movables are situated According to English private international law, the decisive connecting factor is lex domicili i.e., Italian law. Here the English judge has to find out how the Italian Court would have analysed the connecting factors (it refers the matter to Italian Court as English law uses lex domicili for succession matters). And in the Italian Private International law, intestate succession to movable properties is governed by the lex patriae (law of nationality) – English law. So the matter is referred back to English law. This reference back is called Renvoi . If this remission back is accepted, or English law is applied by the judge, it is called SIMPLE RENVOI or SINGLE RENVOI or PARTIAL RENVOI.

4. In the case of Renvoi, following points need to be kept in mind: - (1) Renvoi arises in the application of the lex causae (2) Renvoi arises bacause of different senses in which lex causae could be interpreted ( 3) And Renvoi arises because of the existence of different systems of Private International Law with different choices of law rules.

5. FORGO’S CASE [ FrenchCase Law on Simple Renvoi] Forgo (Bavarian national) domiciled in France, died intestate in France leaving movable properties. Question came about the succession. Forgo was an illegitimate child. And under French law, collaterals (a person having the same ancestor but through a different line) would not succeed to his movable properties & so properties will pass on to French Govt. But under Bavarian Law, collaterals could succeed to the properties. Here the French court has to decide how the properties were to be distributed. French law in such cases applies lex patriae (law f nationality) i.e., Bavarian law. But in Bavarian pvt . International law, succession to movables was governed by lex domicili So the Bavarian Law referred the question back to the French law. It was accepted by the French Court, and the French Law of succession was applied. And so, depriving the right of succession to Forgo’s collateral relatives .

6. Two methods of simple renvoi (1) Renvoi by Remission If in a case, laws of two countries are involved, and when Country “A” referring the question to be decided to Country “B”, and the Private International law of the country referring the question back to the Country “A”, it is a case of renvoi by remission. A refers to B B refers to A (2) Renvoi by Transmission If in a case Country “A” refers a matter to Country “B”. And if Country “B” refers the matter to a third Country “C”, this is renvoi by transmission. A refers to B refers to C

7. DOCTRINE OF DOUBLE RENVOI / TOTAL RENVOI / FOREIGN COURT THEORY / ENGLISH DOCTRINE OF RENVOI: According to this theory, the English judge is required to make an imaginary journey to the Foreign land and sit in the court of that country. Illustration : “X” a British national, domiciled in Belgium, dies intestate in Belgium leaving assets in England, English Court has to decide about the distribution of assets. As per English doctrine of renvoi, English judge has to imagine that he is sitting in a Belgian Court and decide the case as would be decided by the Belgian Court. Succession in Belgian private international law is to be decided by lex patriae , i.e. English law. But English private international law would refer the question back to lex domicili . Belgian law does not recognise does not recognise partial renvoi and the reference back will not be accepted. So the Belgian law will apply the internal law of England in distributing the assets. So the same thing should be applied by the English judge.

8. DRAWBACKS OF THE FOREIGN COURT THEORY : (1) Foreign court theory / double renvoi does not necessarily ensure uniform results . Uniform result will be produced only if the theory is accepted by one country and rejected by the other. In case of rejection by both countries, there will be interminable reference forth 7 back, as Cheshire says “ an international game of lawn tennis”. (2) Foreign court theory is difficult to apply It requires the English judge to ascertain what precisely will be done by the foreign judge. One difficulty is to ascertain whether partial renvoi is accepted / repudiated by the foreign law. Second difficulty is to ascertain the national law when a country have dual citizenships. For e.g. : In countries like America, where there are several territorial systems of law within the same country, it is meaningless to speak of national law.

9. CASE LAWS ON FOREIGN COURT THEORY: Collier v. Rivaz (1841) 2 curt, 855 “ A ” a British subject, died domiciled in Belgium, made a will which was valid according to Belgian law. At that time the validity of will should be tested by the law of the place where the testator was domiciled at the date of his death . If the case were to arise in a Belgian Court, and the Court would apply the English law as the law of nationality. The validity of will was tested by English law and the will was held valid. Sir Herbert Jenner in the course of his judgement said : “the court sitting here decides from the evidence of persons skilled in that law (i.e. Belgian law) and besides as it would if sitting in Belgium ” Similar case laws: In Re Annesley (1926 Ch.’692) - English and French law, validity of will, partial renvoi acceptance by French, will declared invalid.

10. In Re Ross (1930-1 Ce , 337) Janet Anne Ross, a British subject, domiciled in Italy died in Italy leaving movable properties in England. In her will nothing was mentioned for his only son. According to Italian law the son is entitled to succeed her properties as the legitimo-portio (The birthright portion ; that portion of an inheritance to which a given heir is entitled, and of which he cannot be deprived by the will of the decedent , without special cause, by virtue merely of his relationship to the testator. ) As the case arised in England, they referred it to the Italian law ( lex domicili ). As the foreign court theory is applied and checked the concern of Italian court; found that they would have applied English law in the case of succession to the properties. As it was received by English Court, occurred the possibility of referring back to Italian court. Italian Court rejects the Partial renvoi principle and the reference back is not accepted. And so English law will be applied. So on applying English law, the will was declared valid & the only son cannot inherit his mother’s property.

11. Consequences of Foreign Court theory : The result in such cases would be a circulus intricabilis (A circular argument is one that keeps returning to the same points ) spectacle of “English judges and foreign judges continuing to bow each other”. The foreign court theory is applicable only in the following exceptional cases: (1) Validity of wills (2) Title to foreign land (3) certain cases of title to movable properties (4) Validity of marriages Solutions: (1) Applying the internal law theory (2) Accepting Partial Renvoi