UNIT III

Choice of Law and Renvoi

When there is problem of choice of law in Private International, the possible solutions are:
(a) Apply internal law only
(b) Doctrine of Single/Partial Renvoi
(c) Doctrine of total/double Renvoi
The court after deciding to entertain the jurisdiction has to confirm under "which
Law" the dispute should be decided. The decision is called "Choice of Law". It is a
second feature of the private international law. The court has to choose proper law
to solve the problem.

(a) Apply internal law

Choice of law means applying the applicable law. When the question of Private
International law comes under domestic court, the court first has to decide, whether
the court can apply internal law or not. If it applies what are the basic grounds for
choosing particular internal law.

Further choice of laws refers to the area of law in which the court where and action
is brought determines whether to apply the law applicable in that court or apply the
law applicable in another jurisdiction which has an interest in the controversy1.
There are some steps for selecting the internal law to solve the dispute.

Steps in choice of law2 (Noronha 2010)

1. Characterization or qualification of the issues(qualification of Lex cause)
2. Connecting factors (Selection of Lex cause)
3. Apply the refer law (application of lex caue)
1. Characterization of the issues:

Characterization or qualification is a process under which court categorizes the case, in different
categories. A court must decide, for example, whether a dispute concerns the law relating to
succession, property law or family law. The importance of deciding this issue at the outset is

1
http://dfinitions.uslegal.com/c/choice-of-law, visited on 2/2/2016
2
Dr. F.E.Noronha, Private International Law of India, Universal law publishing co., edition 2010, pg 69

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simply that different conflict rules are applicable depending on the legal category or class into
which the issue falls3.

In the above example, the courts may decide that matters of succession and family law are the
laws of a foreign country, while matters concerning property within Nepal are to be resolved
under Nepalese law. So, is a dispute is characterized as a matter of succession or family law, the
rules of a foreign legal system will apply, but if it is a matter of property law, Nepalese law will
apply. Hence, the characterization of the dispute will, to a large extent, determine the applicable
law.

Often, characterization is not a clear-cut issue. Thus, it is necessary to determine the issue of
characterization as a preliminary point to the selection of the choice of law and a number of legal
principles have been developed by the courts to assist in this process4

In English legal system characterization is formal or essential validity for the choice of law. In
Ogden v Ogden (1908)5, the court held that the absence of parental consent was a matter of form
which was governed by the lex loci celeberationis viz, English law.

Ogden v Ogden

The appellant, an English woman domiciled in England, married in England Leon Philip, a 19-
year-old Frenchman domiciled in France. This marriage took place without the consent of Leon
Philip's parents as required by the French Civil Code. When his parents found out about the
marriage they brought him back to France and had the marriage annulled before the French
courts.
Thereafter the appellant married William Ogden. This relationship, however, also failed; and
William Ogden petitioned the English courts for a decree of nullity based on the applicant's prior
marriage to Leon, Philip. At first instance the court granted the decree of nullity and the
appellant now appealed.
The crucial question was whether the marriage to Leon Philip was valid or not; and the only
ground (ignoring for the present the French decree of nullity) on which it could be argued that it
was invalid was that Leon Philip lacked capacity to marry under his domiciliary law because of
the absence of parental consent.
Held
The absence of parental consent was a matter of form which was governed by the lex loci
celebrationis viz, English Law.
Consequences of the decision
3
Dr. Charles Wild, Conflict of Laws, second edition 2003, =Old Bailey Press, pg 7
4
Dr. Charles Wild, Conflict of Laws, second edition 2003, Old Bailey Press, pg 7
5
Ogden v Ogden (1908) P 46 Court of Appel (Sir Gorell Barnes P, Cozens Hardy MR and Kennedy LJ)
Conflict of Laws, 150 leading case DR Charles Wild, Old Bailey Press, First Edition 2003, P. 242

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She could not divorce Leon Philip in France because under French law she was not married to
him at all: and she could not divorce him in England since (at that time) the English courts had
no jurisdiction to grant a divorce because Philip was domiciled in France.

2. Connecting Factors/Selecting lex cause

It is a connection of the legal systems in conflict question. The process is a search of the
fact of the case as well as similar related laws/principle for the issues. For example if the
question is, validity of the contract, one of the connecting factors will be governing law
of the contract (Lex loci contractus). So domestic court should check whether the contract
is according to law of the nation or it conflicts with it. This step finds out what
connecting factor is relevant to that category (Characterization). Another example is, the
relevant connecting factor for the capacity to marriage is, place of celebration or domicile
or nationality. Once appropriate characterization is made it is necessary to select law
which applicable to the fact and the dispute. The legal system which prevails in this
selection is also known as selection of lex cause.

3 Apply the refer law/application of lex cause

Once it is known to what category the issue belongs and what is the relevant connecting factor
for that category of issues, one can go ahead and apply the rule to which one has thus been
referred.6 What law is to be followed at this stage itself, to decide for example whether parental
consent affects the form of marriage or the capacity to marry or what law defines "domicile" or
"situation of things". The judges may collect expert opinion for applying proper law7.

Renvoi
 Renvoi: Renvoi is a French term which literally means sending back.
 Renvoi applies where (1) PIL of local country refer to law of foreign country, and (2) court
of local country interpret reference as one to foreign country’s PIL rules, but (3) PIL of
foreign country would decide case by law of local country or some third country

So, Renvoi may be applicable in many cases or there are certain issues where Renvoi may apply.
Question of Renvoi comes under choice of law, which is also known as second function of the
Private International Law. And there are three solutions for the choice of law in conflicting
issues. The first solution is the law of the country where the issue arises.
The second solution is to apply doctrine of Renvoi, in form of single Renvoi. For Example: If a
judge in country A is referred by his own rule of the choice of a law to the "law of country B",
but the rule of the choice of law in B refers such a case to the "law of A", then the judge in A
must apply the internal law of his own country.
Another Example is, David a British national dies intestate, domiciled in Italy, and an English
court is required to decide how his movables in England are to be distributed. The English court
6
Dr. F.E.Noronha, Private International Law of India, Universal law publishing co., edition 2010, pg 70
7
Nepalese Evidence Act 2031, sec 23 and 52

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is directed by its own private international law to refer this question of distribution to Italian law
as being the law of the deceased's domicile. When however, it examines the provision relating to
the choice of law the applicable law contained in the Italian Code, it finds that in the case of
succession to movables the code prefers the law of the deceased's nationality to that of his
domicile, that if an Italian court had been hearing 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 the law of David's nationality. There is a Renvoi or remissions to the English law.
(Chesire,….Private International Law 14th Ed. 2008, pg 60)
Single Renvoi
Where PIL of foreign country refers case to starting point process called remission; where
foreign country refers to third country process called transmission – if accepted, applies Single
Renvoi
 Effect of Single Renvoi: local court refers to PIL of foreign country, and then applies
domestic law or law of third country. Single Renvoi is not regarded as part of current English
law
Forgo’s Case (French Renvoi or Single Renvoi)
 Renvoi, properly so called best exemplified by the well known decision of the French Court
de Cassation…
 Forgo a Bavarian national, died intestate at Pau in France, where he had lived since the age
of five. The question before the French court was whether his movables in France should be
distributed according to the internal law of France or of Bavaria.
 Collateral relatives were entitled to succeed by Bavarian law, but under the Napoleon code
the property passed to the French Government to the exclusion of collaterals. French private
international law referred the matter of succession to Bavarian law, but Bavarian private
international law referred it to French law. The Court de cassation in France accepted the
remission and applied the provisions of the Code Napoleon.
In this case, there are only two legal systems concerned-where the reference is merely from
country A to country B and back from B to A, the doctrine of Renvoi appears in its simplest
form. It can be described as remission.
A B
A B –Remission (two countries involvement)
Suppose for instance, that an Italian testator dies domiciled in France leaving movables in
England, English law will refer the question of succession to movables to the law of his
domicile, French law. If however, France were to refer the same question to the law of his
nationality, Italian law, this would be case of reference from B to C, best described as
transmission.
A B C -Transmission (three countries involvement)
Note- This kind of doctrine of Renvoi, whether in the form of remission or transmission, now
generally called partial or single Renvoi. It is not the part of the English law. This doctrine of
Single or partial Renvoi was well established in France by "Forgo's case". That's why it is
also known as French Renvoi.

Double or Total Renvoi: The third possible solution is to adopt what may be called the foreign
court theory, or the "doctrine of double Renvoi" or "total Renvoi" or the English doctrine of
Renvoi.

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According to this principle, the local court doesn't refer issue to the other connected country but
applies foreign country’s Renvoi rules in order to decide case in exactly same manner as foreign
court; result..

"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 count in that foreign country would apply if it were
hearing the case."-(Chesire,..Private International Law)

It is a kind of imaginary judicial journey of judge, who makes survey of the other country's legal
provision and decides the conflict case with taking the reference of other country's laws.

Examples:

 A question arises concerning the testamentary dispositions of British subject who dies
domiciled in Belgium, leaving assets in England. A Belgian judge dealing with this
matter would be preferred by his rules of private international law to English law, but he
would then find that the case was remitted to him by English law. He might accept the
remission and apply his own internal law (Single Renvoi), or he might reject the
remission and apply English internal law (Double Renvoi).

Collier v. Rivaz (Theory of reference)-English Renvoi-Double Renvoi

 A person named Ryan, a British subject, died domiciled in Belgium. He left certain
testamentary papers executed in accordance with the formalities required by English law,
but not in accordance with those required by Belgian local law.
 It was proved by the necessary expert evidence that the Belgian courts if called on to
decide the question of validity would uphold the testamentary documents, on the ground
that they were valid according to the testator's national law. So the English Court
validated the documents.
 It is submitted that, the result in Collier v. Rivaz could not have been arrived at if the
English court had refused to take into account the rules of private international law
applied by and recognized in the Belgian courts, and had merely applied the ordinary
local law of Belgium applicable to Belgian nationals.
 Re Annesley: case introduced double renvoi into En law in 1926; Mrs. Annesley, British
national died domiciled in France (in eyes of Eng. law), and domiciled in En (in eyes of
French law); question arose who entitled to movable property in En; En choice of law rule
referred question to Fr law; Russel J: interpreted reference to Fr law as meaning law which Fr
judge applies if he decides case; question arose whether Fr judge would reject renvoi and
apply En domestic law or it would accept it and therefore apply Fr domestic law; given than
Fr judge would accept renvoi and apply Fr domestic law, Russel J applied Fr domestic law
(note France accepts single renvoi)
 Re Ross: illustrates where foreign country rejects renvoi; deceased, Mrs. Ross, British
national, died domiciled in Italy, leaving movable property in En; She excluded son in will
from movable estate situated outside Italy; will was valid by En law, invalid by Italian law;

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 question arose whether En court should apply En law or Italian law; En choice of law rules
referred question of succession to Italian law; Italian choice of law rules referred question
back to En; evidence was that Italian court would reject doctrine of renvoi and apply En
domestic law; accordingly, En court held En domestic law applicable (note effect is opposite
where foreign court rejects renvoi)
 At CL, rule is that renvoi is not applicable to contract law
o Amin Rasheed Shipping Corporation v Kuwait Insurance Co: Lord Diplock: proper
law of contract is “substantive law of country which parties chose as that by which
their mutually legally enforceable rights are to be ascertained, but excluding renvoi,
whether remission or transmission
o Rome Convention on Law Applicable to Contractual Obligations: Art 15: application
of law of any country specified by this convention means application of rules of law
in force in that country other than its rules of PIL
o Renvoi applicable to interstate succession to movable, intrinsic or essential validity of
wills, whether person has capacity to marry
Differences between single, double Renvoi:

 Morris: differ in starting point b/c single Renvoi does not require courts to inquire how
foreign court would decide matter, nor consider possibility that foreign court might accept
renvoi; differ in result b/c if foreign law refers to law of forum, that law invariably applied
under single renvoi but not invariably applied under double Renvoi (depends if foreign
country accepts Renvoi)
 Single Renvoi country does not take into account foreign country’s Renvoi rule; not
influenced by considerations if foreign court would have accepted Renvoi, applied its own
domestic law.
Criticism of Renvoi
 Application of domestic law of foreign country could defeat reasonable expectations of
person, constitute negation of policy underlying En PIL rule; i.e. rule that interstate
succession to movables governed by law of domicile based on view that application of law of
person’s home best fits reasonable expectation of individuals; if court applies renvoi, which
usually substitutes nationality as connecting factor, expectations of person who did not make
will b/c he believed his property would devolved according to local rules governing interstate
succession may be defeated
 Total renvoi difficult to apply; requires that local court ascertain as facts the precise decision
that foreign court would render; local court must obtain prevailing view in foreign country on
doctrine of single renvoi; it may be difficult to prove especially where the point may not yet
be litigated; difficult to acquire info from reliable experts.

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