Doctrine of Renvoi :
According to Dictionary meaning, 'renvoi' is a term in private International law to denote the sending, or determination, of a matter or according to the law of a tribunal outside the jurisdiction where the question arose. Apparently, the courts of France, Italy and Germany will apply the law of nationality, and where the law of nationality, as in England, applies the law of domicile, the latter law appeared to have been applicable under the local law in Germany.
When a special reference has been made to a foreign system of law through the operation of the connecting factor, the question arises of the definition of the meaning of foreign law. Considered an illustration as under....
Suppose A, a British subject whose domicile of origin was English, died intestate domiciled in France, leaving movie property in England. The general principle of English private international law is that in case of a diseased intestate, distribution must be made according to the law of the deceased's domicile at the date of his death. The question now arises, shall distribution be made according to French Internal Law as applied to the distribution of French movables of French subjects domiciled is France, or shall it be according to French law in the wider sense, which includes French private international law? The result of the answer may well differ in the two cases. French law in fact governs distribution of movable by the deceased's nationality, and accordingly, the application of French Law on this fact in its wider sense would result in a remission or Renvoi to English law.
When a case is complicated in this fashion, owing to a difference in the private international law of two countries, three possible suggestions are Apparent.
These are:
i) The judge me take the 'law of France' to mean the internal law of France; or
ii) He may decide the case on the assumption that the doctrine of renvoi is recognized by English law; or
iii) He may take the 'Law of France' to mean the law which a French judge would administer if he were seized of the matter.
II) The second solution is to apply the doctrine of Renvoi, which is to this effect: If a judge seized of a country X is referred by his own rule for the choice of law to the law of country Y, but the rule for the choice of law Y refers such a case to the law of X, then the judge in X must apply the internal law of his own country. The operation of this famous but regrettable doctrine, which demands that a reference to the law of a country shall mean a reference to the whole of its law, including its private international law, is best explained by the following example: X, a British subject, dies intestate, domiciled in Italy, and an English Court is required to decide the mode in which his movables found in England shall be distributed. The English Court is directed by its own private international law to refer this question of distribution to Italian law as being the lex domicili of the deceased. When however, it examines the provisions relating to the conflict of laws contained in the Italian code, it finds that in the case of succession to movables they prefer the lex partiae of the deceased to his lex domicili, and that if an Italian court had been seized of this matter in the first instance, it would have resorted to the law of England. Thus, the English Court finds itself referred back to English law as being law of X's nationality. There is a Renvoi or remission to English law.
If a court accepts this remission and distributes the property according to the internal law of England, it is true to say that the doctrine of renvoi is part of English law. Italian law has been allowed, to give a direct solution of the problem of X, but to indicate what legal system shall furnish the final solution. Where the court that is seized of the matter accepts the remission and applied its own Municipal Law, it recognizes the doctrine in its simplest form.
Renvoi properly so called is best illustrated by the well-known Forgo's Case.
Forgo, a Bavarian national domiciled in France, died intestate in France, leaving movables there. He was illegitimate, and under French law the state could claim all his movable property. Since Bavarian law, as the law of his nationality, governed according to French principles the succession to his movables, was governed by the law, but by Bavarian law succession to movables was governed by the law of domicile. The French court accepted the remission and applied French law as the law of doctrine, which had the effect of firmly establishing Renvoi as a part of French law.
The particular doctrine of Renvoi, whether in the form of remission or transmission, which is now generally called partial Renvoi, is not part of English law. That is to say, if English law refers a matter to the lex domicili and if the latter remits the question to English law, the judges does not automatically accept the remission and apply English internal law.
III) The Third possible solution is to adopt what may be called the foreign court theory, (Cheshire) or the doctrine of double Renvoi (Rebel), or total Renvoi (Dicey), or the English doctrine of Renvoi This demands that an English judge, who is referred by his own law to the legal system of a foreign country, must apply whatever law a court in that foreign country would apply if it were seized of the matter. The question, for instance, concerns the testamentary dispositions of a British subject who dies domiciled in Belgium, leaving assets in England. A Belgium judge dealing with this matter would be referred by his private international law to English law, but he would then find that the case was remitted to him by English law. Evidence must therefore be adduced in the English proceedings to show what he would in fact do. He might accept the remission and apply his own internal law, and this would be his course if Renvoi in the forgo sense (partial Renvoi) is recognized in Belgium, or he might reject the remission and apply English internal law. Whatever he would do to inexorably determines the decision of the English judge. The present solution as described by Sir H. Fenver over a hundred years ago in Collier v. Rivaz, requires the court to' consider itself sitting in Belgium under the particular circumstances of the case.' In other words, English Court decides from persons killed in Belgium law, decides as it would be sitting in Belgium. Dicey, throughout his life, subscribed rigorously to this theory. His views find reflection in the following words of a modern American jurist (Griswold): “When a court is referred by its own conflicts rule to a foreign law, it should, as a matter of course, look to the entire law as the foreign court would administer it."
According to Dictionary meaning, 'renvoi' is a term in private International law to denote the sending, or determination, of a matter or according to the law of a tribunal outside the jurisdiction where the question arose. Apparently, the courts of France, Italy and Germany will apply the law of nationality, and where the law of nationality, as in England, applies the law of domicile, the latter law appeared to have been applicable under the local law in Germany.
When a special reference has been made to a foreign system of law through the operation of the connecting factor, the question arises of the definition of the meaning of foreign law. Considered an illustration as under....
Suppose A, a British subject whose domicile of origin was English, died intestate domiciled in France, leaving movie property in England. The general principle of English private international law is that in case of a diseased intestate, distribution must be made according to the law of the deceased's domicile at the date of his death. The question now arises, shall distribution be made according to French Internal Law as applied to the distribution of French movables of French subjects domiciled is France, or shall it be according to French law in the wider sense, which includes French private international law? The result of the answer may well differ in the two cases. French law in fact governs distribution of movable by the deceased's nationality, and accordingly, the application of French Law on this fact in its wider sense would result in a remission or Renvoi to English law.
When a case is complicated in this fashion, owing to a difference in the private international law of two countries, three possible suggestions are Apparent.
These are:
i) The judge me take the 'law of France' to mean the internal law of France; or
ii) He may decide the case on the assumption that the doctrine of renvoi is recognized by English law; or
iii) He may take the 'Law of France' to mean the law which a French judge would administer if he were seized of the matter.
This three possible courses will now be
discussed...
I) The first solution (which is generally considered as the correct and
most desirable approach on all hands) is to read the expression 'the law of a
country's as meaning only the Internal Law of the country. This would seem to
be in accord with the intention of the propositus, If, for instance, a
man voluntarily abandons England and acquires an Italian domicile of choice
where is resides permanently until his death many years later', the natural
inference it is that he voluntarily and willingly submit himself to the
internal law of that country. This represents the view throughout the United
States of America.II) The second solution is to apply the doctrine of Renvoi, which is to this effect: If a judge seized of a country X is referred by his own rule for the choice of law to the law of country Y, but the rule for the choice of law Y refers such a case to the law of X, then the judge in X must apply the internal law of his own country. The operation of this famous but regrettable doctrine, which demands that a reference to the law of a country shall mean a reference to the whole of its law, including its private international law, is best explained by the following example: X, a British subject, dies intestate, domiciled in Italy, and an English Court is required to decide the mode in which his movables found in England shall be distributed. The English Court is directed by its own private international law to refer this question of distribution to Italian law as being the lex domicili of the deceased. When however, it examines the provisions relating to the conflict of laws contained in the Italian code, it finds that in the case of succession to movables they prefer the lex partiae of the deceased to his lex domicili, and that if an Italian court had been seized of this matter in the first instance, it would have resorted to the law of England. Thus, the English Court finds itself referred back to English law as being law of X's nationality. There is a Renvoi or remission to English law.
If a court accepts this remission and distributes the property according to the internal law of England, it is true to say that the doctrine of renvoi is part of English law. Italian law has been allowed, to give a direct solution of the problem of X, but to indicate what legal system shall furnish the final solution. Where the court that is seized of the matter accepts the remission and applied its own Municipal Law, it recognizes the doctrine in its simplest form.
Renvoi properly so called is best illustrated by the well-known Forgo's Case.
Forgo, a Bavarian national domiciled in France, died intestate in France, leaving movables there. He was illegitimate, and under French law the state could claim all his movable property. Since Bavarian law, as the law of his nationality, governed according to French principles the succession to his movables, was governed by the law, but by Bavarian law succession to movables was governed by the law of domicile. The French court accepted the remission and applied French law as the law of doctrine, which had the effect of firmly establishing Renvoi as a part of French law.
The particular doctrine of Renvoi, whether in the form of remission or transmission, which is now generally called partial Renvoi, is not part of English law. That is to say, if English law refers a matter to the lex domicili and if the latter remits the question to English law, the judges does not automatically accept the remission and apply English internal law.
III) The Third possible solution is to adopt what may be called the foreign court theory, (Cheshire) or the doctrine of double Renvoi (Rebel), or total Renvoi (Dicey), or the English doctrine of Renvoi This demands that an English judge, who is referred by his own law to the legal system of a foreign country, must apply whatever law a court in that foreign country would apply if it were seized of the matter. The question, for instance, concerns the testamentary dispositions of a British subject who dies domiciled in Belgium, leaving assets in England. A Belgium judge dealing with this matter would be referred by his private international law to English law, but he would then find that the case was remitted to him by English law. Evidence must therefore be adduced in the English proceedings to show what he would in fact do. He might accept the remission and apply his own internal law, and this would be his course if Renvoi in the forgo sense (partial Renvoi) is recognized in Belgium, or he might reject the remission and apply English internal law. Whatever he would do to inexorably determines the decision of the English judge. The present solution as described by Sir H. Fenver over a hundred years ago in Collier v. Rivaz, requires the court to' consider itself sitting in Belgium under the particular circumstances of the case.' In other words, English Court decides from persons killed in Belgium law, decides as it would be sitting in Belgium. Dicey, throughout his life, subscribed rigorously to this theory. His views find reflection in the following words of a modern American jurist (Griswold): “When a court is referred by its own conflicts rule to a foreign law, it should, as a matter of course, look to the entire law as the foreign court would administer it."
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