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RENVOI
In Conflict of Laws, renvoi (from the French, meaning "send back") is a subset of the choice of law rules and it is potentially to be applied whenever a forum court is directed to consider the law of another state.
The procedure for conflict cases
- The court must first decide whether it has the jurisdiction to hear the case (which will involve addressing the question of whether the plaintiff is attempting to manipulate the judicial system by forum shopping).
- Characterisation. The court must analyse the case as pleaded and allocate each component to its appropriate legal classification, each of which will have one or more choice of law rules attached to it.
- The court will then apply the choice of law rules. In a limited number of cases, usually involving Family Law issues, an incidental question can arise which will complicate this process.
Discussion
To limit the damage that would result from forum shopping, it is desirable that the same law is applied to achieve the same result no matter where the case is litigated. The system of renvoi, which literally means "send back", is an attempt to achieve that end. If a forum court is directed to consult a foreign law, the first question it must address is whether this is a reference solely to the relevant substantive provisions, or to the state's system of law as a whole which would, self-evidently, include its choice of law rules. Forums that do not have renvoi provisions, refer only to the specific provisions of relevant law. In this way, the same outcome is achieved no matter where the case is litigated so long as the second state would also have applied its own laws.
But if that second country actually has choice of law rules requiring it to apply the forum law, a difference in outcome might arise depending on where the plaintiff invokes jurisdiction. Whether a difference actually emerges depends on whether the other state operates a Single Renvoi system. A single renvoi forum always refers to the other law's choice of law rules. If those rules would send the issue back to the forum court, the forum court will accept the first remission and applies its own laws. Thus, equality of outcome is always achieved so long as the competing laws operate different systems. Some early French authorities support this approach (e.g. Forgo's Case (1883) and Souli's Case (1910)). Similarly, Article 27 of the Introductory Law of the German Civil Code 1900 adopts it. But, if both sets of laws operate with either no renvoi system or single revoi systems, forum shopping will be a potential problem.
Hence, there is another system called Double Renvoi or the Foreign Courts Doctrine which will also ensure parity of result so long as no other relevant law is using it. In this scenario, the forum court considers that it is sitting as the foreign court and will decide the matter in exactly the same way that the foreign court would. In this system, there can never be more than two remissions, e.g. English forum refers to French law (a single renvoi system) so English law is applied (1st remission) and France accepts the remission (2nd and final). At present, only English law uses this approach.
Application of renvoi
Because the doctrine is considered difficult and its results are sometimes unpredictable, its application has generally been limited to:
- the validity of wills and intestate succession; and
- retrospective legitimation by the marriage of the natural parents.
Although there are indications in some states that it might also apply to two issues in family law, namely the capacity to marry and the formal validity of marriage.
In the European Union, its application is expressly excluded in contract cases under Article 15 EC Convention on the Law Applicable to Contractual Obligations (Rome 1980). Most states also exclude it in tort cases e.g. in the U.K. section 9(5) Private International Law (Miscellaneous Provisions) Act 1995.
The main difficulties
There are three main difficulties in cases where renvoi may be an issue:
- It gives undue weight to the evidence of the experts on foreign laws.
- The reference to the conflicts system used in other laws may reveal differences that would have arisen in characterisation or in the choice of law rules to be applied. If these differences would lead to onward transmissions, the forum court will follow the references into third (or further) legal systems. This is unpopular because it requires the parties and the court to consider evidence of multiple legal systems.
- There may be an "inextricable circle" between sets of laws using either single or double renvoi systems which do not have adequate safeguards built in to guarantee when to stop accepting remissions.
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