Introduction
The need for uniformity in-laws and standards has become a fundamental problem for coexistence in the expanding era of globalisation. The idea is that a state’s sovereignty, which includes the ability to make laws, should not interfere with another state’s sovereignty. Private international law, generally known as conflict of laws, is a branch of law that deals with the application of a country’s laws in another country or jurisdiction. This broad category of conflict of laws includes the Renvoi Doctrine, which deals with the applicability of a foreign state’s jurisdiction.
The word renvoi is emanated from the French word renvoyer, which means “to send back.” The courts determine whether the topic can be decided in a foreign jurisdiction as well, depending on that nation’s conflict of law principles, and the case is remanded. Many aspects of the doctrine must be paid attention to and learned about, as well as how it is causing problems in settling disputes on board owing to delays or other circumstances. For resolving private international law or conflict of laws problems, it’s critical to recognise whether renvoi is a theory or a problem disguised as a doctrine. As a result, the purpose of this article is to study and comment on how the Doctrine of Renvoi is understood in private international law, as well as to increase information about the subject. This notion has far-reaching ramifications for a wide range of issues, including socio-legal issues concerning marriage, succession rules, and other problems covered by private international law.
Throughout history, justice delivery systems and procedures have evolved as a tool to ensure that justice and fairness prevail in society. The basic goal of any judicial system around the world is to offer justice to all people equally, with no distinction made based on who comes before the court. If this goal is to be achieved, it is necessary to construct legal principles in such a way that, as much as feasible, similar circumstances result in similar conclusions. Uniformity and consistency are required in all departments of law, and any legal system or justice delivery mechanism must follow a consistent and similar modus operandi in order for justice to be served equally to all.
In most cases, all states’ legal systems revolve around ideas of equality and non-discrimination thus there aren’t many roadblocks in this area. However, the issues become particularly apparent in circumstances where the application of norms of law that are unfamiliar to the courts of a given country is required. One of the concerns that arise in cases containing components that relate them to other jurisdictions is whether and to what reach foreign principles of law should be represented in the court’s ruling. In essence, this is a question of legal preference.
The acceptance of the Renvoi Doctrine indicates that the rules of the conflict of laws should be interpreted to include not only the foreign states’ or country’s ordinary or domestic law but also its rules of the conflict of laws. According to this theory, a country’s “law” refers to all of its laws.[1]
What is Doctrine of Renvoi: Origin and History
The word ‘renvoi’ emerges from the French word ‘renvoyer,’ which means ‘to refer back.’[2] In 1841, cases involving the formal validity of wills helped establish this idea in English law.[3] As a result, three factors made it more likely to be recognised in this context.[4]
First, at the time, the English conflict rule was overly strict. It insisted on the use of only one form, the testator’s last domicile, for wills.
Second, there existed a more flexible conflict rule in adjacent European countries (where persons of English descent were more likely to settle), which allowed compliance with the forms imposed by either the testator’s local law or the law of the country where the will was formed.
Third, there existed a court predisposition in favour of upholding wills that admittedly represented the testator’s last wishes but were only formally deficient.
Collier v. Rivaz[5], in which the court had to assess the formal legality of a will and six codicils made by a British national, who died domiciled in Belgium, in the English sense but not in the Belgian sense, is the source of authority. “The court sitting here to address the matter at hand must consider itself sitting in Belgium under the special circumstances of this case,” Sir H. Jenner said. Despite the fact that two codicils were written in Belgian form and four in English, he ignored English law and applied Belgian domestic law. This demonstrated that the concept was used as a trick to get around the rigour of the English conflict rule.
The Collier v. Rivaz decision was overturned in Bremer v. Freeman.[6]The Privy Council refused to grant probate to the will of a British national who died domiciled in France in the English sense, claiming that it was prepared in an acceptable manner in English but not under French law. Countries like Spain, Italy, and Luxembourg adopt the Single Renvoi. This system refers to the regulations of a different jurisdiction’s choice of law. When a disagreement arises in a jurisdiction like Spain, Italy, or Luxembourg (X), those countries will determine whether their domestic law applies or whether the law of another country applies (Y). Where Y’s regulations could potentially send the case back to X (the original forum court), the court will accept the initial remission and apply its own domestic laws.
For example, if a testator was a French person who lived in England but was domiciled in Spain and died leaving the moveable property in Spain, the court may need to consider which jurisdiction’s succession laws will apply to the property. As Spain is the law of the forum or the place where the property is located, it follows the laws of the deceased’s nation, which in this case is French law. French law applies to the law of the deceased’s habitual residence, which is England. England, on the other hand, investigates the deceased’s native land, Spain.
Because two transfers occurred, Spain, which operates the Single Renvoi system, will not accept it back (from Spain to France and from France to England). As a result, the Spanish court will apply the law that was most recently left in the chain of referral, namely the law of England and Wales, as the law of the forum.
There may be a complication if both countries have a single renvoi system or no renvoi system at all.
Only single or partial renvoi was recognised until 1926, when Russell, J.[7] developed the idea of double or entire renvoi and implemented it without specifying specific authorities, treating French local law as the law of the domicile because a French court would have done so through renvoi from English law.[8]
In contrast to Spain, several countries, such as England and France, embrace the notion of twofold renvoi. In this system, however, there can never be more than two remissions.
Consider the case below: Because France is the law of the forum (where the assets are located), if a testator, an Irish person who resides in Spain but is domiciled in Italy, dies and leaves moveable property in France, the law of the deceased’s habitual residence in Spain will be evaluated and applied. Spanish law applies the law of the deceased’s nationality, which is Italy. Because Italy has just one renvoi system, it will not recognise the Double Renvoi; hence France will most likely use Italian law in this case.
Renvoi: A Problem
The issue raised by what is known as the doctrine of renvoi in conflict of laws is simple: if the lexfori[9] states that a particular issue should be decided by a foreign system of law as the lexsitus[10]Or the law of the person’s domicile, does that mean the system’s domestic or internal rules of law, or does it mean all of that system’s rules of law, including its conflict of laws rules?
When a reference to a country’s law refers to its complete set of rules, including its conflict of laws rules, the effect can be unusual in some situations, especially when the conflict of laws rules of that system are fundamentally different from those of the lexfori.
The problem of renvoi doctrine, on the other hand, cannot occur if it is knowingly decided to apply foreign law in a specific set of circumstances because that decision must imply the application of the foreign domestic law. This is when multiple countries agree, under an international convention, that a specific type of dispute between parties shall be addressed by a specific legal system.
As a result, most international accords that adopt a uniform rule of conflict of laws clearly state that the law chosen as applicable must be that legal system’s domestic law. It’s also worth noting that several conventions, such as the Rome Convention, expressly prohibit the use of renvoi (Article 15).
As a result, it runs counter to the purpose of existing Conflict of Laws or Private International Laws. When the doctrines of partial (single) and total (double) renvoi are used, the basic goal of justice is called into doubt. The unpredictability of the outcome makes this philosophy difficult to apply.[11]
Solutions to Renvoi
In theory, there are three ways to assess a reference to ascertain what is intended when it is determined to use a particular system of law to decide a specific question under the lexfori.
To demonstrate the three alternative solutions, consider the following scenario:
The subject of succession to the moveable of an Indian national residing in Italy is being considered by an Indian court. The following are the three options:
1. In this context, when the court is compelled to use Italian law as the lex domicile[12] of the propositus[13]Under its conflict of laws rules, the court could evaluate solely Italian domestic or internal law without considering the Italian conflict of laws regulations. The benefit of such a solution is its simplicity. Furthermore, it is consistent with the propositus’s anticipated purpose that, although being an Indian, he has decided to live in Italy permanently and has obtained an Italian domicile. It’s also reasonable because it entails applying conflict of laws rules only once, when the Italian rules are applied, and Italian law is chosen as the person’s residence law. However, in some situations, this may not provide a very just outcome because, if the problem had been determined by an Italian court, it might have employed Indian law rather than Italian law to resolve it.[14]
2. In the same situation, the court could “accept” the case from Italy but regard it as a reference to Indian domestic law. Remission, sometimes known as single or partial renvoi, is the term used to describe this process.[15]On the one hand, such a solution ensures that the result will be the same as one reached by an Italian court, which is right and proper; on the other hand, it amounts to a virtual abrogation of our rule that such issues should be decided by the law of the person’s domicile. However, this method has been condemned as a surrender to the rule of foreign law.
3. The third option is to use a technique known as “complete renvoi.” Total renvoi has three levels: First, a reference to Italian law under our conflict of law rules because the propositus was domiciled in Italy; Second, a reference to Indian law because the proper law under Italian conflict of laws rules is the law of a person’s nationality; Finally, because the second stage requires a reference to all of the Indian law’s provisions, including its conflict of law restrictions, the third stage requires a reference back to Italian law. This method would be satisfactory if Italy ‘accepts’ the doctrine of renvoi, and the result would be identical to what an Italian court would have determined if the matter had been decided by it. However, if the third stage refers to a legal system that, like the Italian system before 1995, did not accept the renvoi, the process would fail.
Because the English rulings are insufficient, Indian courts have a lot of leeway in establishing the correct law on renvoi in general. It appears that the rule proposed in a leading English book, as described under Position of England above, is satisfactory because it gives full effect to our conflict of law’s provisions while avoiding the uncertainties and complexity that come with adopting the doctrine of total renvoi.[16]
Conclusion
In the Forgo case,[17] A judgement of the French Court of Cassation presented a matter of fundamental importance in the conflict of laws, to which Professor Labbe of the Ecole de Droit de Paris drew first notice in an article published in I885.[18] This case involved the distribution of property to distant relatives when a person died intestate, and it involved a conflict between French and English law that was resolved through this doctrine, which stated that this doctrine does not allow forum shopping, paving the way for a faster resolution of justice, which is the sole object of a conflict of laws.
Later, in the Re Annesley[19] case, identical facts were intertwined in order to deal with the property of a woman who died without leaving at least a third of her estate to her children, as required by her national law. She died in England, and the doctrine of renvoi was applied once more to determine the outcome. Later, in another important case, Macmillan Inx v. Bishopgate[20], the Supreme Court stated that this approach requires judges to engage in judicial mental gymnastics. Later, in Re Ross[21] A difference between Italian and English law arose, and the Italian courts remanded the case to the English courts. As a result, one can safely deduce that, while the main goal of the conflict of laws is to render justice, it must also be fair; thus, applying the doctrine of renvoi aids the process, and while there may be some issues, renvoi is to be considered an effective doctrine for resolving private international law disputes.
The renvoi concept, on the other hand, appears to be a weakly constructed doctrine with numerous loopholes. The idea is founded on the premise that an individual’s rights must vest in him and hence must be respected by all foreign courts. This doctrine is riddled with misunderstandings. Its application necessitates an inefficient and frequently erroneous reliance on expert testimony, and the final decision of the lexcausae may reflect judicial discretion rather than a rigorous and uniform application of the theory.
In light of these arguments, it’s difficult to defend the renvoi concept as a viable method for determining the right lexcausae. It’s almost devoid of the certainty and predictability that a court of law requires. In a larger sense, international codification could bring uniformity to both national and international levels.
There has always been a need for international law codification to ensure that national laws are consistent in the international arena. For example, if all legal systems are presumed to be equally fair and reasonable, then international law uniformity will not always improve the law in any given country. However, there may be some advantages in achieving international agreement on issues like title and rank. It is unquestionably preferable to prevent a potential succession of actions to settle an estate, as well as any potentially problematic issues of legitimacy or marital status.
Furthermore, worldwide uniformity will help to reduce potential forum shopping by providing some stability at the international level. While uniform substantive laws may not be necessary, some international uniformity in the choice of law norms should be advocated. However, international conventions, rather than a purported adherence to the renvoi doctrine, should be used to achieve such uniformity. It is unfortunate that the various international conferences on private international law have met with little success, owing to many countries’ unwillingness to compromise their traditional rules of choice of law. It is not easy to build a persistent and practical solution to the choice of law problem. The renvoi theory has been utilised in the past to arrive at a choice of law based on policy considerations rather than logic. The courts should forsake this choice-of-law strategy in favour of reformulating existing dispute rules in light of logic and socioeconomic realities. The ratio decidendi of decisions based on public policy should be clearly stated. The notion of renvoi will not conceal valid choice influencing concerns in this way.
[1]See https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5565&contex t=fss_papers, last viewed on 13/02/2022
[2]David McLean, The Conflict of Laws, 531 (Sweet Maxwell Thomson Reuters 7th ed. 2009)
[3]Id
[4]Re Ross; Ross v. Waterfield, [1930] 1 Ch. 377; Conflict of Laws. Renvoi. Author(s): M.H.; Source: The Cambridge Law Journal, Vol. 4, No. 2 (1931), pp. 209-210; Published by: Cambridge University Press URL: http://www.jstor.org/stable/4502516. Accessed on 11/02/2022
[5](1841) 2 Curt. 855.
[6]Source: Michigan Law Review, Vol. 29, No. 5 (Mar. 1931), pp. 627-628; Published by: The Michigan Law Review Association; Stable URL: http://www.jstor.org/stable/1281473.
[7]Id
[8]Supra note 1
[9]The law of the jurisdiction in which the contract is formed.
[10]Law of the place where the property is situated.
[11][1947] Ch. 506 at 515. Re Duke of Wellington,
[12]Persons’ rights are sometimes governed by the law of their domicile (as were as the person dies leaving personal property)
[13]The law is applicable based on descent.
[14]Chesire & North: Conflict of Laws, 59 (oup. 14th ed. 2006).
[15]NYGH& DAVIES, CONFLICT OF LAWS IN AUSTRALIA, PARA 15.3 (Sydney: Butterworths, Lexis7th ed. 2002).
[16]Alba J. Mayss, Principles of Conflict of Law 170 (Cavendish Publishing Limited, 2nd ed., 1996).
[17]Cass. June 24, 1878, Dalloz, 1879, I, 56
[18]The Yale Law Journal, Vol. 29, No. 2 (Dec. 1919), pp. 214-218; Published by: The Yale Law Journal Company, Inc. URL: http://www.jstor.org/stable/786110
[19][1926] Ch. 692
[20]Macmillan Inx v. Bishopgate [1995] 1 W.L.R. 978, p. 1008.
[21][1930] 1 Ch. 377.
This article has been written by Rishi Khemnani, 1st Year BBA. LL.B (Hons) Student at Symbiosis Law School, Pune.
