Updated: Nov 29, 2021
The need for homogeneity in law and norms has become a deep-seated problem for synchronicity in the expanding era of globalization. The premise is that a state's sovereignty, which incorporates the power to establish laws, should not meddle with the “sovereignty” of another state. “Private international law”, often known as “conflict of laws”, is a subject that deals with a country's law that applies in another country and jurisdiction.
The “Doctrine of Renvoi”, which deals with the applicability of a foreign state's jurisdiction, falls under this broad category of conflict of laws.
The word renvoi comes from the French word “renvoyer”, which means to “send or refer back”. Here, the courts decide whether the subject can be decided in a foreign jurisdiction, based on the conflict of law norms of that nation, and the matter is referred back. It's critical to pay attention to and learn about many components of the doctrine and how it's generating problems in resolving disputes on board due to delays or other factors. It's crucial to know whether renvoi is a doctrine or a problem in disguise for resolving private international law conflicts. As a result, the goal of this article is to examine and comment on the understanding of renvoi in private international law, as well as to raise knowledge about the subject. This concept has far-reaching implications for a variety of concerns, including socio-legal difficulties surrounding marriage, succession rules, and other topics that fall under the purview of private international law.
Justice and fairness in society are prevailing throughout history, due to the tools that have evolved with the justice delivery system and procedure. In all judicial systems, the goal is to render justice without distinction to all who come before the court. If this goal is to be accomplished, it is necessary to construct legal principles in a way that, as much as possible, ensures that no one is discriminated against.
In most cases, all governments' legal systems are based on principles of “equality” and “non-discrimination” therefore, there are few barriers in this regard. However, the issues are exacerbated in circumstances when the courts must apply norms of law that are not native to the country. One of the concerns is whether and to what extent foreign principles of law should be incorporated in the court’s ruling about the cases involving elements from other jurisdictions. Essentially, this is a matter of legal preference.
The recognition of the Renvoi theory implies that the rules of the conflict of laws are to be understood as incorporating not only the ordinary or internal law of the foreign state or country but its rules of the conflict of laws as well. According to this theory, the law of a country means the whole of its law.
THE THEORY OF RENVOI
The first-ever mention of the term "Renvoi" was made in a note in the 1898 issue of Law Quarterly review. It states that at the time, judges of courts in France, Italy, and Germany as well as academicians of the time were deeply concerned about the question of Renvoi or Die Riickund- Weiterverweisung as it was called in German. This term, however, was still unheard of in England. The note comprehends the phenomenon of Renvoi in terms of a 'remission' by a superior court to an inferior court to be further dealt with. The note leaves the question of the validity of Renvoi and its adoption by the English system unanswered. The note is important in that it is the first-ever mention of the term Renvoi in English legal writing. The Renvoi question first surfaced in a French Court in 1841 but did not gain importance until later in 1878. Even then, it failed to capture the attention of English Courts. The remark is significant because it is the first time the term Renvoi has ever been used in English legal writing. The Renvoi issue was initially raised in a French court in 1841, although it did not achieve prominence until 1878. Even at that time, it failed to pique the interest of English courts.
It is broadly held that each state has the legal authority to deal with the legal consequences of facts occurring within its borders and the courts outside the borders have no right to enforce the legal obligation.
When a forum court 'refers' to a foreign state's law, it signifies that the court will uphold the identical right that a foreign court would have upheld in a similar factual scenario. The theory of vested rights, on the other hand, states that the forum court will not create new rights based on the facts of the foreign state, but will only enforce the rights already established by the foreign state's law.
The idea of Renvoi initially gained traction in the “Fargo Case”, which was decided in favor of it by the French Court of Cessation. Renvoi has been accepted in France, Spain, Portugal, and Belgium, however, it has not been accepted in Italy or Switzerland. According to Westlake and Dicey, England can be termed a Renvoi State because the concept is firmly established in English Common Law. However, it is maintained that applying the doctrine of Renvoi to any case would be difficult because the forum court cannot decide the case as a foreign state court.
Taking Renvoi to its inevitable conclusion, the back-and-forth between two nations that recognize Renvoi would never come to an end. For example, if the English conflict of law rule mandates the application of the law of the domicile, i.e. French law, and the French conflict of law rule requires the application of the law of nationality, i.e. English law, the matter will be sent back to England, creating an eternal loop. To address this, Westlake presents the divestment theory, according to which the forum court must automatically resolve the case if the courts of both countries refuse to accept jurisdiction (limited Renvoi).
TYPES OF RENVOI
Single Renvoi: Single Renvoi is used by countries such as Spain, Italy, and Luxembourg. This system refers to the rules of choice of law in another jurisdiction. When a dispute develops in a jurisdiction such as Spain, Italy, or Luxembourg (A), those countries will assess whether their domestic law applies or if another jurisdiction's law applies (B). Where B's regulations could potentially send the case back to A (the original forum court), the court will accept the initial remission and apply its 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 whose legislative forum will apply to the property under succession laws.
In this scenario, because Spain is the law of the forum, or where the property is located, it applies the law of the deceased's country, namely French law. The law of the deceased's habitual residence, which is England, is followed by French law. England, on the other hand, looks into the deceased's home country, which is Spain.
Spain, which operates the Single Renvoi system, will not accept it back because two transfers occurred (from Spain to France and from France to England). As a result, the Spanish court, as the law of the forum, will apply the law that was most recently left in the chain of referral, namely the law of England and Wales.
There is a possible difficulty if both countries have a single renvoi system or have no renvoi system at all.
Double Renvoi: Nevertheless, certain nations, including England and France, accept renvoi twice, unlike Spain. However, there can never be more than two remissions in this system.
Consider the following scenario: a testator, an Irish person who lives in Spain but is domiciled in Italy, dies and leaves moveable property in France.
Because France is the law of the forum (where the assets are located), it will evaluate and apply the law of the deceased's habitual residence in Spain. The law of the deceased's nationality, which is Italy, is followed by Spanish law. Italy, being a jurisdiction with only a single renvoi system, will not accept the Double Renvoi, therefore France will most likely use Italian law in this matter.
Renvoi and Contractual Choice of Law:
We must investigate the relationship between the Renvoi Doctrine and the party autonomy contemplated by the contractual choice of law at this time. To do so, we examine a ruling of the United States Court of Appeals for the Second Circuit in the case of Siegelman v. Cunard White Star Ltd.28 on the issue of conflict of laws. The relevance of this case stems from the fact that it addresses the unresolved and contentious problems of Renvoi and the choice of law to regulate questions emerging under an international contract for the first time.
As a result of globalization, an increasing number of commodities and passengers are crossing international borders, often across places that are res nullies or have no legal sovereign authority. This movement, in the lack of choice of law clauses, causes a wide range of legal challenges, which begs the question of which law applies to these disputes. These scenarios also pose a more general question: Can the notion of Renvoi be harmonized or has it reached the end of its usefulness?
Upon establishing that the renvoi concept cannot be recognized as a general principle in the conflict of laws, we can briefly discuss certain unusual instances in which recognize that the lex fori should integrate foreign law, including its conflict-of-laws, provisions, may be necessary or useful. Accepting the renvoi concept in the framing of international treaties as the only means of bringing nations with different rules together in a conflict of laws has been determined to be necessary.
Though international treaties and conventions have attempted to reconcile concerns of private international law, this section will look at a possible path ahead. Though it is the accepted legal position that courts derive their authority from their sovereign and that a court of State A cannot sit as a court of State B when considering the law of foreign states, this narrow position is incompatible with the principles of fairness and justice, family relations, and the growth of international commerce. As a result, as Beale describes it, courts have established an imaginative middle ground in which they apply foreign law as a rule of law, enforcing the inherent right behind such rule by finding similar justice inside local law.
The lex loci celebrationis may be interpreted to incorporate the foreign law as a whole to sustain a marriage, but not to destroy it, simply because of the favor granted to marriages. However, it would be preferable if this objective was achieved by the adoption of an alternate conflict-of-laws rule.
Uniformity could be achieved without resorting to the renvoi doctrine if all countries adopted alternative rules in their conflict of laws systems. The broad adoption of the rule locus regit actum as an alternative rule would suffice for the formal execution of a deed or will.
International uniformity in the area of capacity and substantive validity of wills and deeds could only be achieved if all countries were ready to uphold such instruments if they fulfilled either the law of the situs or the national law of the owner. Under the current circumstances, the renvoi concept appears to be the only practical means of achieving such uniformity.
~ Authored by Mitali Aryan