RENVOI

Renvoi is a French word meaning send back/ return unopened. There are 2 types of renvoi:
single & double Single renvoi is called remission in English where legal systems of two
countries are involved but if three countries legal systems are involved then it's called
transmission. Once it is decided that a court has jurisdiction & what choice of law are
applicable, the judge will apply the chosen law chosen if the chosen law is English law, the
judge is required to give effect to English internal law.eg., where a person dies intestate
domiciled in England, here his property will be distributed by following the English internal
laws relating to property. There is no requirement to give regard to private international law.

The problem raised what is conflit of law is called renvoi. There are three modes of
considering this issue (see Dicey and Morris, 9th ed., pp. 52-54):

(i) No renvoi - reference to the law of the foreign jurisdiction is taken to be only the
substantive domestic law of that system. It is taken not to include any of the conflict rules of
that jurisdiction

(ii) Partial renvoi - reference to the law of the foreign jurisdiction is taken to include not only
its sustantive domestic law but also the choice of law rules of that system.

(iii) Total renvoi - The forum court chooses which system of law to apply based on its own
choice of law rules. It must then decide the case exactly as if it were the court of the
jurisdiction chosen.

There are cases in which the renvoi doctrine has been sanctioned either expressly or by
necessary implication. The case of Guernsey v. The Imperial Bank of Canada and the case of
Lando v. Lando may serve as illustrations.

1. Guernsey v. The Imperial Bank of Canada an action was brought in the Circuit Court of
the United States for the District of Wyoming against the indorser of a promissory note. The
note was made and indorsed in Illinois, but it was payable in Canada. Presentment, demand
and protest were made, and notice of dishonor was given in compliance with the law of
Canada; but the indorser claimed that the notice would have been insufficient to charge the
indorser if the note had been payable in Illinois. The court below held that the notice was
good and rendered judgment against the indorser. The latter's counsel insisted that the ruling
was error on the ground that the sufficiency of the notice was governed by the law of the
place of indorsement and not by the law of the place of payment.

On appeal, the learned court made the following remarks concerning the above contention:
"To this contention there is a short and conclusive answer. The place of the indorsement
was the state of Illinois. The law of that state was, when the indorsement was made, and it
still is, that when commercial paper is indorsed in one jurisdiction and is payable in another
the law of the place where it is payable governs the time and mode of presentment for
payment, the manner of protest, and the time and manner of giving notice of dishonor, and

1|Page
the law of the place of indorsement is inapplicable to them. Wooley v. Lyon, II7 Ill. 248,
250,.6 N. E. 885, 886, 57 Am. Rep. 867. If, therefore, as counsel contend, the law of the
place where the indorsement was made,- the law of Illinois, governs the sufficiency of the
notice of dishonor in this case that notice was good, for it was sufficient under the law of
Canada where the note was payable, and the law of Illinois was that in a case of this
character the law of the place where ,the note was payable governed the time and manner of
giving the notice of dishonor."4

The statement quoted assumes that if the law of the place of indorsement (Illinois) must be
satisfied in the matter of notice, and the law of the place of indorsement requires the
notice to comply with the law of the place of payment (Canada), a notice sufficient
under the law of Canada would be good. The reference to "the law of the state of Illinois"
is understood thus, not as covering merely the ordinary law of Illinois governing notice, but
as incorporating the law of Illinois as a whole, inclusive of its rules of the conflict of laws.

2. Forgo V. Administration de domain which was decided by the French cour de cassation.
It regards the estate of a Bavarian national who had settled in France acquiring a legal
domicile there and then died intestate in france leaving moveable properties there. The
French court referred the question of the distribution of his intestate estate to Bavarian Law.
It was found that under the Bavarian law of succession to moveable property (intestate state)
was governed by the law of the place (lex Situs). The French accepted this remission to its
law and applied the French internal law.

3. Lando v. Lando rests upon the same assumption. The facts of the case were the following:
Ida Oberg and David H. Lando, residents of Minnesota, were married at Hamburg, Germany,
by a person who was not authorized by the law of Germany to join persons in marriage, but
whom Ida Oberg believed in ·good faith to be a minister of the Gospel. The parties in
question afterwards lived as husband and wife in Vienna, where they held themselves out as
husband and wife, and where they were generally so regarded by their friends and
acquaintances. David H. Lando died before returning to this country. Ida Lando claimed to be
entitled to appointment as administratrix of his estate and thus put in issue the validity of their
marriage. The supreme court of Minnesota was in doubt as to the meaning of the German
rules of the conflict of laws governing the validity of marriage; but, applying the rule of
interpretation semper praesumitur pro matrimonia, it reached the conclusion that the
marriage would be sustained in Germany by virtue of the national law of the parties, that is,
the law of Minnesota.

4. In Re Annesly per russle J. (1926)1CH 692

An English woman left a will according to English law she died domiciled in france but
according to French law, she had not acquired a French domicile because of failure to comply
with reg formalities. The testamentary dispositons were valid in English law but invalid by
French law because she had failed to leave 2/3rd of her property to her children. It was that
French law would apply because

2|Page
a) The domicile of the deceased would be determined by English law, the deceased was
domiciled in france

b) But French law would refer to the UK patriae

c) The rules of English private international law would refer to French law.

d) The French legal system accepts the doctrine of single revoi thus the French judge
would have accepted the remission. thus the English court should decide as the French court
would.

5. In Re Ross(1930) 1 CH 376 Lukmore J. where an English woman died domicile in Italy

leaving the will of moveable property in English and Italy immovable property in Italy. By
English law succession is governed by Italian law as lex domicilii the will was partly invalid
by Italian law. The Italian choice of law under being founded on nationality would have
referred to English law. Luxmore J, concluded that the Italian court would reject renvoi and
simply apply English law.

6. In Collier v. Rivaz: A person named Ryan, a British citizen died domiciled in Belgium. He
left certain testamentary papers executed in accordance with the requirement of Belgian local
law. The court of England decided to decide the matter as if it were sited in Belgium. The
judge sir I.T Jenner, on proof that by Belgium law the validity of will made by foreigners not
legally domicile in Belgium was governed by the law of their own country. He stated that
“the court sitting here to determine it must consider itself sitting in Belgium under the
particular circumstance of this case.

7. Maltass v. Maltass (1844, i Robert., p. 67). In this case the question was as to the
validity of a will made by a British subject resident in Turkey ; the will was in the form
required by internal English law. What was his domicile at death ?

Either Turkish or (by transmission from his father) English. For the following reasons,
however, the court did not think it necessary to decide this question : This inquiry," said the
court, will become unnecessary if it should turn out that with regard to this individual
succession, the law of Great Britain and of Turkey is the same ; for when we speak of the
law of Domicile, as applied to the law of succession, we mean, not the general law, but the
law which the country of domicile applies to the particular case under consideration.

8. Frere v. Frere (1847, 5 Notes of Cases, p. 593).

In 1826 the Right Honourable J. Hookham Frere, being domiciled in Malta, made a will in
England in English form. He died in 1846, still domiciled in Malta. Sir H. Jenner Fust, in the
Prerogative Court of Canterbury, refused to declare the will void, although the municipal law
of Malta required the presence of at least five witnesses, at any rate for wills made in Malta.
The evidence before the court was that the Maltese courts would not deem a will, made
outside Malta by a person domiciled in Malta, to be void, if it complied with the formal
requirements of the lex actus.

3|Page
9. In re Trufort ( 1 887, 36 Ch. D., p. 600). A Swiss subject died domiciled in France. X
claimed in the Swiss court to be recognised as his legitimate son and to be entitled as such to
nine- tenths of his estate, and obtained a final judgment in his favour on both points. The
deceased had left a will by which he gave his fortune to Y ; part of this fortune was
movables in England.

Mr. Justice Stirling declared that he was bound by the decision of the Swiss courts: Where,"
said he, the title has been adjudicated on by the Courts of the domicile such adjudication is
binding on the Courts of England": true, the domicile was France, but French law (according
to the evidence adduced) regulates movable succession by reference to LNat., and, in
addition, by a treaty made between France and Switzerland in 1869, the rights of persons
claiming to share in the estate of a Swiss subject dying domiciled in France were to be
determined according to the law and by the tribunals of Switzerland. Said Stirling, J . :

"The claim of the parties litigating in this Court has been actually raised and decided in the
Courts which according to the law of the deceased's domicile were the proper and
competent Courts to decide. I am bound by the decision."

Note, — It was not so much as suggested that the material law applicable was the internal
French law.

10. Re Askew case – an English marriage settlement made on the marriage of X, a British
subject domiciled in England, to his 1st wife, Y, it was provided that X, if he married again,
might revoke in part the settled trust & make a new appointment to the children of such
subsequent marriage. Some time before 1911, X, who had long being separated from Y,
acquired a German domicile. In 1911, having obtained a divorce from a competent German
court, he married Z in Berlin. Some time before the divorce a daughter had been born to X &
Z in Switzerland. In 1913, X exercised his power of revocation & made a new appointment in
the trust in favour of his daughter.

he English judge insisted that the validity of the appointment dependent on whether daughter
was legitimate. The daughter could not claim legitimacy under the Legitimacy Act 1926 since
at the time of her birth her father was married to someone other than her mother. By English
private international law the daughter’s legitimacy depended on whether German law, being
that of her father’s domicile both at the time of her birth & also at the time of her marriage to
Z, recognized legitimating by marriage. In such a case, German private international law
referred the law to the law of the father’s nationality. Single renvoi was accepted in
Germany.

If for instance a German court was facing the matter, it would 1st refer to English law, & then
on finding a remission made by English law to the law of the domicile, & would accept this
& apply German internal law. In other words, if the English reference to the law of the
domicile meant a reference to the private international laws of the domicile (ie Germany), the
daughter would be legitimate. So the judge applied the private international law of Germany
& decided in favour of legitimacy of the daughter & the validity of the appointment in her
favour in the trust.

4|Page
11. Re O’keefe case – the question before the English court was the way in which the
movables of X, a spinster who dies 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 & died in Calcutta in X was born in India in 1860; from 1867
to 1890 she lived in various places in England, France & Spain; but in 1890 she settled down
in Naples & resided there until her death 47yrs later in About the year 1878 she had made a
short tour in Ireland with her father. She never lost her British nationality but was domiciled
in Italy.

The English court as per the Private International law of England selected the law of her
domicile. But had an Italian judge been hearing the matter, he would have referred to her law
of the country of which she was a national ie., Britain. Italian judge would have rejected any
remission made to him by the English court as single renvoi is not recognized in Italy. Now
which system of internal law out of those having some relation to X, would be regarded by
the Italian court as applicable? Whether it was the law of England/Ireland/India? Which of
these systems are to be selected by the court of Italy(if Italian judge would have been hearing
the matter)?

The expert witnesses agreed that the choice of law would be the law of the country to which
X “belonged” at the time of her death. She certainly didn’t belong to England for applying
English internal law, for she had spend not much time in England. She might perhaps by
reason of her birth in Calcutta, be regarded as belonging to India, but she had not been in
India for 70yrs. It can also be believed that she belonged to Italy as she had continuously
spend the last 47yrs of her life in Italy. But the judge reverted to X’s domicile of origin &
held that she belonged to Ireland because that was the country where her father was
domiciled at the time of her (X’s) birth although she was born in India.

In the result therefore, the succession to her property was governed by the law of her country
which she had never entered except during one short visit sixty yrs before her death; Ireland
was not even a separate political unit until 62yrs after her death; she was ignorant of the
succession laws of Ireland. The reasoning on which such a remarkable result is reached are
interesting.1st the judge is required by the English law to the law of the domicile, then he
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, the judge throws himself back on
the domicile of origin & thus determined the rights of the parties by the legal system which is
neither the national law nor the law of the domicile as required by the English private internal
law. So the judgment seems to be superfluous.

12. In Re Samara Case

Samara was National of Tunisia and she left T and settled in France in 1864, she then went to
Italy and settled there . She made will in France which was valid as per french law but invalid
as per Tunisian Law. The validity of will was challenged by her relatives in Italian Courts.

The plaintiffs believed in Tunisian law. The defendants believed she had no nationality when
she died, because she left Tunisia.

5|Page
Italy believes in Lex Actus (where the act is done).

Italy - France- Italy (Single Renvoi) (Remission)

13. Ross v. Ross

In 1894 the Supreme Court of Canada adopted the Renvoi-principle, in a matter of

testamentary form {Ross v. Ross, 25 S. C. Rep., p. 307). The question was as to the validity
of a will made in New York by a person domiciled in Quebec : the Quebec law was locus
regit actum, and the form employed was one, holograph, not recognised by the internal law of
New York, although it was recognised by the internal law of Quebec : New York law,
however, on its international side, recognised as valid a will made according to the law of the
testator's domicil.

The court upheld the validity of will as New York law would, because it conflict of law rules
have applied Quebec Law.

Queb. LFor. -> N.York LActus ^ Queb. LDom.

14. Vladi v. Vladi

Vladi v. Vladi. 189 Mrs. Vladi, who lived in Nova Scotia, applied for an order in respect of
her matrimonial property rights under the Nova Scotia Matrimonial Property Act. 190 Mr.
Vladi, who resided in West Germany, applied to strike his former wife's proceeding for want
of jurisdiction. The couple were Iranian nationals. Chief Justice Glube, sitting in chambers,
found their last common habitual residence was West Germany, although they had visited
Nova Scotia from time to time. The assets in question included three immovable properties in
Halifax, one of which was jointly owned and the others were in the husband's name alone.
The rest of the assets were movable and immovable property in West Germany and shares in
companies located in West Germany, Nova Scotia, Switzerland and Lichtenstein.'19 The
husband maintained that Nova Scotia was forum non conveniens, especially if West Germany
was the last common habitual residence. That meant that West German law had to be applied
to the division of all the property, wherever it was located, under the Act's choice of law rule.

Under conflict of Law rules of law of federal republic of Germany, the questions has to be
decided in the facts of the case, by law of Iran; The court in Nova Scotia decided the matter
in applying the rules of German domestic law and as it found that applying the rules of the
law of Iran was contrary to public policy.

15. Neilson v. Overseas Projects Corporation of Victoria Ltd

Mr. and Mrs. N are physically in China working for OPC. Mrs has bad accident in China.
They return to Aus. She decides to sue OPC for damages from personal injuries (tort action
against employer). She’s within LP, she has cause of action, parties are there. Problem is tort
occurred in China (conflicts issue). And Australia had adopted Tolofsen v Jensen approach,
so LP is the place where the tort occurred (China).

6|Page
Question becomes: what is the Chinese domestic law on liability in tort and what is the
limitation period?

Domestic law: The LP in China is one year and it’s expired. She should be unable to bring
her action.

CoL rules: However, they go on to look at the Chinese CoL rule (this is renvoi)  Chinese
rule says that in situations where both parties are nationals of the same country or domiciled
there, the law of their own country may be applied.  Gives Chinese a discretion to decide
which law to apply.

Somehow, P is able to persuade the HC Aus to apply Australian law instead of Chinese law.

Edinger: It’s unclear how the Aus HC did this. The justices all use a different method.
What’s in the casebook is part of Justices Gummo and Hain who appear to opt for a renvoi
rule for torts. They seem to support total renvoi; they engage in statutory interpretation of the
Chinese rule, and under foreign court theory China would apply Australian law.

This means that whenever there’s an accident in a foreign jurisdiction you look to see what
the foreign court would do (lex fori delicti).

16. Bremer v. Freeman (1856 in the Prerogative Court of Canterbury, Deane, p. 199;
1857 in the Privy Council, 10 Moo. P. C, p. 374). F. A.,

A British subject, died domiciled, jure gentium, in France. She had made a will, in France, in
English form : the will dealt with movables all of which, save the contents of her lodgings,
were in England.

The testatrix had not obtained from the French government authorisation to acquire a French
domicil. The judge of the Prerogative Court (Sir John Dodson) admitted the will to probate
on the ground that, though F. A. had her domicil de facto in France, yet that it was necessary,
in order to establish a domicil in France such as would affect her succession and the mode of
making her will, that her domicil should be by authorisation of the French government.

The decision was reversed in the Privy Council. The judgment was delivered by Lord
Wensleydale where he observed that “On the whole, then, on a review of all this evidence of
the law of France, their Lordships are clearly of opinion, that it is not established, that for the
purpose of having a domicile which would regulate the succession, any authorization of the
Emperor was necessary; that a legal domicile for this purpose was clearly proved, and that
consequently, if the testatrix had a power to make a will at all, the will in this form was
invalid”. Therefore Privy Council refused to probate the will of British subject who died
domiciled in France in English sense and in England in the French sense on the ground that it
was made in English but not in French form. The reasoning of court is thus ambiguous as
it presents a case for and also at the same time against the doctrine.

7|Page
Renvoi Theory

 LEGAL TERMS
 Lex Domicile- Law of Domicile
 Lex Celebration - Law of Marriage
 Lex Partia- Law of Nationality
 Lex Situs- Law where property is situated
 Lex Contractus- Law where contract is done
 Lex Actus- Wherever Act is done
 Lex Fori- Law of Forum

Common law Countries applies Law of Domicili

Civil Law Countries Applies Law of Nationality

 England (in conflict)

 In capacity applies Lex Domicili

 In formality - Lex Loci Celebrations
 Immovable property - lex situs
 Fraud Law of Limitation - Municipal Law
 Movable Property - Lex Domicili
 Divorce - Lex Domicili
 In England domicile might be changed after age of 16 years.
 In case of Conflict of contract - Single Renvoi
 Conflict of Family - Double Renvoi
 Renvoi has never been applied in case of Contracts and torts.

[Note: Domicile can be determined into 3 ways:

1. Permanent Resident

2. Intention to stay for indefinite period of time

3. Last place of domicile]

 FRANCE

 Minor marriage is not allowed.

 Divorce - Law of Nationality
 Formality of Marriage - Lex Celebrations
 Capacity to marry- Lex Domicili
 Immovable Property - Lex Situs
 when marriage is void/voidable - lex fori

8|Page
 Fraud / law of limitation- Substantive law (Internal law)
 In case of Conflict of contract - Single Renvoi
 Conflict of Family - Double Renvoi

Tontine Clause:
1.It is for married couple/ Live in relationship; After marriage property brought is
held by both even if one has made the investment.
2. If both have made the investment in the property the property will be held in the
proportion of the investment done.

In case of House after Divorce- In the proportion

Communate Universalee: In French Law to marry it is prerequisite is to make

contract for property in the proportion, in equal share.

Communate Legal Reduite Lex Acquiets: Even if the above contract is not made
the marriage is Valid and property will be divided equally.

 ITALY
 In Contract - Lex Loci Contractus
 Movable Property - Lex Nationality

 AUSTRALIA
Renvoi doesn't apply in field of contracts.

 CANADA
Renvoi doesn't apply in field of contracts.

No Renvoi

 Case of Negotiable Instruments

 Winding up of foreign Company

Australia and Canada believes in No Renvoi in case of Contracts

SINGLE RENVOI

 ITALY
 SPAIN
 ROMANIA
 LUXEMBERG

DOUBLE RENVOI

9|Page
  ENGLAND
 FRANCE
 US

NO RENVOI

 INDIA

10 | P a g e