DOCTRINE OF RENVOI

Author: Nikita Anand, 2nd Year, BBA LL.B (Hons), Chanakya National Law University, Patna.
The article has been written by the author while pursuing the internship programme with us.

INTRODUCTION

The Doctrine of Renvoi is dealt with under the Private International Law. Private International Law is the branch of Jurisprudence emerging from diverse laws of different nations, that comes into the role when it is interaction or transition of business among private citizens of different nations with one another.

The doctrine of Renvoi is a legal doctrine that solves the problem when the court faces a conflict of Law and notices that the issue has to be decided as in accordance and has to consider the Law of another country. Renvoi is a French word, which literally means to “send back “ or “ return unopened”.[1] This can be applied considering the foreign issues that arise in succession, planning and administration and is the process by which rules of a foreign country is adopted by the court in respect to the arising of conflict of laws.

HISTORY

Unaware of its origin, the Doctrine of Renvoi is a recent concept in the English legal system. However, it has been assumed that it must have been introduced as an escape device.[2] Because this doctrine prevents any conflict of law as by enabling the court to adopt the rules of foreign Jurisdiction and preventing forum shopping. The case where the Doctrine of Renvoi was first used was Collier v. Rivaz,[3] [2]which dealt with the formal validity of the wills, single Renvoi. and until the double Renvoi was introduced by Russell J. into the English Law, this status of Renvoi remained intact.

PARTIAL OR SINGLE RENVOI

In the case of single Renvoi, the choice to apply the foreign choice of law rule lies with the court of forum, accept the remission to its court by foreign law and apply the law which it would have applied had the case entirely domestic law to the forum, or in the case of transmission , the law of the third country.

When the judge of a country faces conflicting rules of his country, then the law of a country is referred to another country but what the law of later country does is to refer the case to the former country. In that case, the Judge of the country will apply the Law of his own country but will do after the second country referred the same. The countries where the “Single Renvoi” system is dealt with are Spain, Italy, and Luxembourg.

Likewise, a testator who was a French national habitually resided in England, died leaving the movable property in Spain. In this case, the court might need to consider as to which legislative forum will apply to deal with the property under the law of succession. Here, Spain was the law of forum where the property was situated applies the law of France as of considering the nationality of the deceased. French law, observes the law of England, that was deceased’s habitual residence. And however, England examined the domicile of the deceased, Spain. As in this case, two transfer took place, i.e from Spain to France and from France to England. Spain following the single Renvoi system, will not accept this back. And according to the Spanish Court, it will apply the law of England, where it was left last.

In the case of Re Ross case,[5] there was a case of a will of English woman who was domiciled in Italy, left the property in Italy, and versatile property both in England and Italy. The will was valid in English Law, but it was invalid in Italy as a large portion of her property was not left to her child by her. As the concept of Renvoi back is not acknowledged by Italian Law, the issue was chosen as per the English Laws.

In the Re Askew case, [5] where father was a British National and was domiciled in Italy. When the child was conceived, the father was married to another Lady, and as per English law, in this case, the child can not be held to be legitimate. In this case, the German Law was, being the domicile of the factor was connected by the court.

DOUBLE RENVOI

In Double or Total Renvoi or foreign court theory, equality of justice is guaranteed by the forum court. And it is implemented by the court in the cases, where no other law is determined to answer the question. Double Renvoi is operated in England and France. And in this system, there can’t be more than two remissions.

Likewise, the testator was an Irish national, who was a habitual resident of Spain and was domiciled in Italy and died in France, leaving movable property in France. Here the law of the forum is France, where assets are situated will apply Spanish law, examining the law of the deceased’s habitual residence that is Spain. Spanish Law, observed the law of Italy, that was deceased’s nationality. Italy has a jurisdiction operating single renvoi, will not accept double renvoi. In this case, France will apply Italian law.[6]

In the case of Re Annesley [7] a woman of British domicile died in France leaving behind her will. This will be valid as per the English Law but was not as per French law because as per the French Law, two-third of the estate has to be left for the children, and she failed to do so. In this case, the court held that French law would be applied as French accepts Renvoi.

In the case of Collier v Rivaz,[8] a British who died in Belgium made the will, not in accordance with the Belgium law but as per the English law. In this case, it was held that Belgium law will apply only to the will made as per the Belgium subjects and the will of the foreigners would be dealt as per the law of their nationality. So, in this case, the will was tried by English Law.

BRUSSELS IV – THE EU REGULATION ON SUCCESSION

The new European Union(EU) Succession Law was effective from 17th August 2015 and for all member states to determine the forum applying to succession law and attempts harmonization of succession. Even if Ireland, UK, and Denmark have opted out, in that situation too, regulation will have the effect as on to how signatory states will deal with non- signatory state or vice versa.

This regulation will affect only the deaths on or after the 17th of August 2015. However, individuals are at the discretion to elect the law under which the will be applied after that date. Also, this regulation does not make any difference as to the movables and immovable and rests on the law of the state where deceased habituated.

ADVANTAGES

Sometimes doctrine of Renvoi will promote the reasonable expectation of the parties and the court can avoid the foreign internal law, having no connection with the prospectus by resorting to the foreign choice of law rules. Most importantly, total Renvoi will help to achieve the uniformity in terms of the resolution of the case, irrespective of the court, and the country in which claim will be brought.

DISADVANTAGES

In some cases, where the Doctrine of Renvoi will apply, there will be more complications and difficulties, especially where the case of transmission applies. In transmission, foreign law alludes the case to the third country, instead of the primary country. Another drawback is the practical difficulty involved.[9] as in the doctrine would create an obligation on the part of the Judges ascertain as a fact that the precise court would give.in some cases certainly can not be drawn as to which law will apply or where foreign law refers to nationality, it is easier for unitary states but opposite and problematic for a federal state. Another difficulty arises where the English judges have to make sure of as of what Law prevails in t foreign country, as to the doctrine of single Renvoi, and also where the National Law of propitious is selected as the foreign law for the choice of law it must be ascertained as to what is “National Law”? This also creates dependence as if remission made to it has been accepted by the court of the domicile, it will apply their own law, otherwise, they will follow the internal laws of England.

CONCLUSION[10]

In the world of more than 200 countries, each of them have their separate legal system likewise a marriage may be valid in one country but can be considered as invalid in another country. Then how his issue of hardship can be resolved? The answer can be International tradition . which can harmonies the contention guidelines of various nations which is incomprehensible another arrangement is that the English court may have the capacity to secure consistency with the nation whose principles of contention of law is not quite the same as England the English court utilize decision of law of that nation rather than English one. This conveys us to the precept of Renvoi. [9]

Difference between single Renvoi and double Renvoi lies in that , in single Renvoi court is not obliged to ask how foreign court would choose the matter neither consider the probability that foreign court will accept the Renvoi. When Judge falls back on the Doctrine of Renvoi, solution of internal law has to be applied first and when the space for the internal law does not arise, in that case, the proper type of law might be applied by the judges and the doctrine if Renvoi has to be applied when the reference is made to the law of domicile, law of the place of immovable property, and where they will have been made. Differences arise out of single Renvoi and double Renvoi, as the single Renvoi will not take into consideration as if the foreign court will accept Renvoi or not and does not tell courts to ask in which manner, the foreign court will deal with the matter and now – a – days, Double Renvoi theory is practiced by the English courts, and not giving significance to the Single Renvoi system . considering that by Double Renvoi, the judges of English courts will put themselves in the shoes of judges of the foreign nation. However, the Doctrine of Renvoi does not find its place in Contracts or the Torts and in absence of any Renvoi, the court will follow the internal law.


REFERENCES:

[1] Pearse Trust, The rule of Doctrine of Renvoi explained, 2014.

[2] (1841) 2 Curt.855.

[3] Bilah Masum, Renvoi defined

[4] [1930] 1 ch 377.

[5] [1930] 2 Ch 259.( May 27’2020) https://www.academia.edu/1734787/Renvoi_Revisited.

[6] Supra note 1.

[7] [1926]Ch 692.

[8] [1841 ] 2 curt – 855

[9] Advocate Asif Khan &Abdul Ghani, What is ‘Renvoi’? Distinguish the Theory of ‘Single Renvoi’ from ‘Double Renvoi’ with Reference to Relevant Case Law in Private of International Law (27 May’2020) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3124439.


DISCLAIMER: Views and opinions as expressed in the Research Articles are solely of the author and any member of the core team of the website shall not be liable for the same.

Related posts