Renvoi

A French word the meaning of which is ‘send back’ or ‘to return

unopened’ – a subject of the choice of law rules- since the
doctrine is complicated, it is generally limited to: the validity of
wills and intestate succession and retrospective legitimation by
the marriage of the natural parents; in some jurisdictions even
applied to issues of family law.
Once it is decided that a court has jurisdiction, how the issue
before it is to be characterised in terms of private international
law and what choice of law rules are applicable, it might be
thought that the judge’s task was reaching its conclusion-
nothing remains for him to do but to apply the chosen law- if
this is Indian law there is no doubt that what he is required to
do is to give effect to Indian internal law- If, however, the
applicable law is that of a foreign country the situation may be
complex- the difficulty is to determine what is meant by the
applicable law.
If the applicable law is that of foreign country (as the lex situs
or the lex domicili), does it mean the domestic or internal
law of that system, or does it mean all the rules of law of
that system including its conflict of laws rules?
In such a situation the result can be strange- e.g.,
X, a British subject, dies intestate, domiciled in France, and an
English court is required to decide how his movables in
England are to be distributed.
According to English rules for choice of law, the law that
governs is lex domicilii, i.e., French law; but according to
the French rules it is the law of nationality i.e. Law of
England.
What is meant by ‘French law’? Does it mean French internal
law or does it mean the whole of French law including the
rules of PIL? If it includes whole of French law including PIL,
on referring to French PIL we find ourselves referred back
to English law.
Possible solutions:
Solution 1: take the ‘law of France’ to mean the internal
law of France. (and not its PIL)- this may not produce
just result as the French court in this case would have
chosen English law under its PIL.
Solution 2: decide the case on the assumption that
single renvoi (or remission) is recognised by the
English law; this means that the English court could
‘accept’ back the matter from France, but it treats it
as a reference to domestic law of England.
Solution 3:
This solution is known as ‘total renvoi’- under this ‘the
law of France’ means the law which a French Judge
would administer if he were seized of the matter. i.e.
the French judge would apply his internal law.
The problem of renvoi cannot arise if the foreign
law applied is foreign domestic law- this is the
situation when an international convention
requires application of the domestic law- such a
requirement excludes renvoi- the Rome
Convention on the Law Applicable to Contractual
Claims, 1980 (of EU) provides that the law of the
country to be applied is the law other than its
rules of PIL, thus excluding renvoi.
The problem of renvoi arises in those cases where
the rules of PIL either refer back to the law of the
forum or refer to the law of a third country- for
the former situation, the French word is ‘renvoi’-
the German word is ‘Ruckverweisung’ and the
English ‘remission’- for the latter situation, the
German term is ‘Weiterverweisung’ and the
English, ‘transmission’. In the sixth edition of
Dicey’s Conflict of laws, the former is called a
patent conflict of conflict of rules involving a
reference back to the forum, and the latter, ‘a
conflict involving a reference to a third country.’
The doctrine can be traced back to the year 1652 – several theories
of renvoi have been propounded- the principal theories are:
(a) Mutual disclaimer theory;
(b) The theory of Renvoi proper; and
(c) The foreign court theory.
Mutual disclaimer theory- Von Bar and Westlake principal
propounders- starts on the assumption that all rules of PIL are in
reality rules by which one state, for the purpose of
administration of private law, defines its own jurisdiction and
the jurisdiction of foreign states- in all cases where there is a
conflict between the law of forum and the law of foreign
country, invariably the theory is for the application of the law of
forum- in other words, whenever the rules of conflict of laws of
two countries are different the presumption is that there is no
rule of internal law of either country applicable to the legal
relationship, rather there is a gap, a vacuum, which has to be
filled up and the best way to fill it is to apply the internal law of
the forum, or what Westlake calls, ordinary law of the forum.
The difference between Von Bar and Westlake is that
Westlake seems to apply his theory to all cases where
the difference in the rules of two countries amounts
to mutual disclaimer; Von Bar seems to restrict his
theory to cases where personal statutes are involved.
Criticism: the fundamental error of the theory consists
in the assumption that it is possible for state Y to
bring its jurisdiction into perfect accord with that of
other states so that there will be no infringement
upon their jurisdiction- this is impossible and will
remain so long as the states have different rules
relating to conflict of rules- each state is therefore,
obliged to adopt its own rules without referring to
those of other states.
Theory of Renvoi proper:
The application of renvoi in its proper or narrow form
would always, like the mutual disclaimer theory, lead
to the application of lex fori- however, bases of both
are different- this theory is based on the assumption
that the rules of PIL in each country are based on the
principle of comity which implies a mutual agreement
among the states for the application of each others
laws- in other words, the basis is reciprocity- if there
is no reciprocity lex fori would apply.
Cricism: the theory is illogical- no logical reason could
be given as to why in one case law of A is to be taken
to refer to the rules of PIL of country B, while the
latter should not in return to be held to refer back
again to PIL of country A, and so on ad infinitum.
Foreign court theory:
In 1841, Sir Herbert Jenner, an English judge formulated
this theory thus: ‘the court sitting here decides from
the persons skilled in that law, and decides as if it
would if sitting in Belgium’.
Criticism: if the foreign court also adopts the doctrine
of renvoi then logically no solution is possible, as a
perpetual circulus inextribabilis, would be the result-
the doctrine is hardly conducive to bring uniformity in
PIL between different countries- so far as the
remission aspect is concerned it suffers from the
disadvantage as other theories; so far as transmission
is concerned, the theory may be manipulated in such
a way that the lex fori may again be applicable.