Renvoi
Encyclopedia
In conflict of laws, renvoi (from the French
, meaning "send back" or "to return unopened") is a subset of the choice of law
rules and it may be applied whenever a forum court
is directed to consider the law of another state.
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 (1882) and Soulié'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 renvoi 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 as 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.
However, 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.
, application of renvoi is expressly excluded in contract cases under Article 15 EC Convention on the Law Applicable to Contractual Obligations (Rome 1980). It has also been rejected for contracts by most commonwealth countries.
Most states also exclude it in tort cases e.g. in the UK section 9(5) Private International Law (Miscellaneous Provisions) Act 1995. Since 11 January 2009, Regulation (EC) 864/2007 (Rome II-regulation) on the law applicable to non-contractual obligations has been in force, controlling in a uniform way the rules throughout the European Union.
Article 24 of this regulation provides: "The application of the law of any country specified by this Regulation means the application of the rules of law in force in that country other than its rules of private international law." hence excluding the possibility of renvoi throughout the EU in tort cases.
, the doctrine of renvoi was revived by the decision of the High Court in Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 (29 September 2005). In this decision the High Court considered the situation of Mrs Neilson, who had injured herself falling down the stairs in her apartment in Wuhan, China. Her apartment had been provided by her husband's employer, Overseas Projects Corporation, and Mrs Neilson sued her husband's employer in negligence in the Supreme Court of Western Australia in June 1997, six years after the accident had occurred. Under Australian choice of law rules, the law of the place of the incident or lex loci delicti governs tort
situations (following the decision of that court in 2002: Regie Nationale des Usines Renault SA v Zhang). This meant that the law relevant to the resolution of the dispute was that of the People's Republic of China. However under Chinese law
, the claim would have been statute barred for exceeding the limitations period
(Article 136 of the General Principles of Civil Law of the People's Republic of China). However Mrs Neilson raised Article 146 of the General Principles in her defence, arguing that the provision of that article should apply making the relevant law for the dispute Australian law. Article 146 provided that:
"With regard to compensation for damages resulting from an infringement of rights, the law of the place in which the infringement occurred shall be applied. If both parties are nationals of the same country or domiciled in the same country, the law of their own country or of their place of domicile may also be applied"
As a consequence, the Supreme Court trial judge concluded that Art 146 "gives me a right to choose to apply the law of Australia
because both parties are nationals of Australia." This decision was reversed by the Full Court of the Supreme Court of Western Australia.
On appeal to the High Court, Neilson succeeded. In six separate judgments, the majority of the High Court found in favour of Neilson on the basis that the Australian choice of law rule referred to the whole of the law of the place of the wrong. Secondly, that this meant that the applicable law was referred back to Australia and the Australian limitations statute applied, meaning that Neilson's claim was no longer statute
barred.
This decision has received strident criticism by Martin Davies, and both the High Court and Full Court decisions have received very close attention by leading contemporary conflicts scholars including Andrew Lu and Lee Carroll, Elizabeth Crawford, and Mary Keyes.
It has been suggested that this messy interpretation of the Australian Court could have been avoided, had the Court followed the general practice that procedural rules always go with the forum and substantive law depends on the "forum most interested" analysis. However, since John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, statutes of limitations are considered substantive law. Because of this, the applicability of limitation laws no longer go with the local forum; rather, they too follow the lex loci delicti.
most courts try to solve conflict of laws questions without invoking renvoi. In Re Schneider's Estate, 96 N.Y.S.2d 652 (1950), is an example where renvoi is recognized as an option, in which the local court chose to apply the foreign country's laws to decide the dispute in the local court. This is most likely to happen in cases involving immovable property or domestic relationships.
, "Resolving Renvoi: the Bewitchment of Our Intelligence by Means of Language", Notre Dame
Law Review (2005).
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
, meaning "send back" or "to return unopened") is a subset of the choice of law
Choice of law
Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states , or provinces...
rules and it may be applied whenever a forum court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
is directed to consider the law of another state.
The procedure for conflict cases
- The court must first decide whether it has the jurisdictionJurisdictionJurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
to hear the case (which will involve addressing the question of whether the plaintiffPlaintiffA plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
is attempting to manipulate the judicial system by forum shoppingForum shoppingForum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment...
). - CharacterisationCharacterisation (conflict)In conflict of laws, characterisation is the second stage in the procedure to resolve a lawsuit involving a foreign law element. This process is described in English law as classification and as qualification in French law...
. 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 lawChoice of lawChoice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states , or provinces...
rules attached to it. - The court will then apply the choice of law rules. In a limited number of cases, usually involving Family LawFamily lawFamily law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
issues, an incidental questionIncidental questionIn the Roman conflict of laws, an incidental question is a legal issue that arises in connection with the major cause of action in a lawsuit. The forum court will have already decided that it has jurisdiction to hear the case and will be working through the next two stages of the conflict process,...
may arise which will complicate this process.
Discussion
To limit the damage that would result from forum shopping, it is desirable that the same law be applied to achieve the same result no matter where the case is litigated. The system of renvoi 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 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
Equality of outcome
Equality of outcome, equality of condition, or equality of results is a controversial political concept. Although it is not always clearly defined, it is usually taken to describe a state in which people have approximately the same material wealth or, more generally, in which the general conditions...
is always achieved so long as the competing laws operate different systems. Some early French authorities support this approach (e.g. Forgo's Case (1882) and Soulié'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 renvoi 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 as 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 (the validity of transfers of real property); and
- retrospective legitimation by the marriageMarriageMarriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
of the natural parents (validity of divorce decrees).
However, there are indications in some states that it might also apply to two issues in family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
, namely the capacity to marry and the formal validity of marriage.
EU
In the European UnionEuropean Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
, application of renvoi is expressly excluded in contract cases under Article 15 EC Convention on the Law Applicable to Contractual Obligations (Rome 1980). It has also been rejected for contracts by most commonwealth countries.
Most states also exclude it in tort cases e.g. in the UK section 9(5) Private International Law (Miscellaneous Provisions) Act 1995. Since 11 January 2009, Regulation (EC) 864/2007 (Rome II-regulation) on the law applicable to non-contractual obligations has been in force, controlling in a uniform way the rules throughout the European Union.
Article 24 of this regulation provides: "The application of the law of any country specified by this Regulation means the application of the rules of law in force in that country other than its rules of private international law." hence excluding the possibility of renvoi throughout the EU in tort cases.
Australia
In AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, the doctrine of renvoi was revived by the decision of the High Court in Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 (29 September 2005). In this decision the High Court considered the situation of Mrs Neilson, who had injured herself falling down the stairs in her apartment in Wuhan, China. Her apartment had been provided by her husband's employer, Overseas Projects Corporation, and Mrs Neilson sued her husband's employer in negligence in the Supreme Court of Western Australia in June 1997, six years after the accident had occurred. Under Australian choice of law rules, the law of the place of the incident or lex loci delicti governs tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
situations (following the decision of that court in 2002: Regie Nationale des Usines Renault SA v Zhang). This meant that the law relevant to the resolution of the dispute was that of the People's Republic of China. However under Chinese law
Chinese law
Chinese law is one of the oldest legal traditions in the world. In the 20th and 21st century, law in China has been a complex mix of traditional Chinese approaches and Western influences....
, the claim would have been statute barred for exceeding the limitations period
Statute of limitations
A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated...
(Article 136 of the General Principles of Civil Law of the People's Republic of China). However Mrs Neilson raised Article 146 of the General Principles in her defence, arguing that the provision of that article should apply making the relevant law for the dispute Australian law. Article 146 provided that:
"With regard to compensation for damages resulting from an infringement of rights, the law of the place in which the infringement occurred shall be applied. If both parties are nationals of the same country or domiciled in the same country, the law of their own country or of their place of domicile may also be applied"
As a consequence, the Supreme Court trial judge concluded that Art 146 "gives me a right to choose to apply the law of Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
because both parties are nationals of Australia." This decision was reversed by the Full Court of the Supreme Court of Western Australia.
On appeal to the High Court, Neilson succeeded. In six separate judgments, the majority of the High Court found in favour of Neilson on the basis that the Australian choice of law rule referred to the whole of the law of the place of the wrong. Secondly, that this meant that the applicable law was referred back to Australia and the Australian limitations statute applied, meaning that Neilson's claim was no longer statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
barred.
This decision has received strident criticism by Martin Davies, and both the High Court and Full Court decisions have received very close attention by leading contemporary conflicts scholars including Andrew Lu and Lee Carroll, Elizabeth Crawford, and Mary Keyes.
It has been suggested that this messy interpretation of the Australian Court could have been avoided, had the Court followed the general practice that procedural rules always go with the forum and substantive law depends on the "forum most interested" analysis. However, since John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, statutes of limitations are considered substantive law. Because of this, the applicability of limitation laws no longer go with the local forum; rather, they too follow the lex loci delicti.
US
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
most courts try to solve conflict of laws questions without invoking renvoi. In Re Schneider's Estate, 96 N.Y.S.2d 652 (1950), is an example where renvoi is recognized as an option, in which the local court chose to apply the foreign country's laws to decide the dispute in the local court. This is most likely to happen in cases involving immovable property or domestic relationships.
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 characterisationCharacterisationCharacterization or characterisation is the art of creating characters for a narrative, including the process of conveying information about them. It may be employed in dramatic works of art or everyday conversation...
or in the choice of lawChoice of lawChoice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states , or provinces...
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.
Further reading
Kermit Roosevelt IIIKermit Roosevelt III
Kermit "Kim" Roosevelt III is a law professor at the University of Pennsylvania Law School and author of The Myth of Judicial Activism and the D.C. legal thriller In the Shadow of the Law .-Early life:Kim Roosevelt III was born in Washington, D.C...
, "Resolving Renvoi: the Bewitchment of Our Intelligence by Means of Language", Notre Dame
Notre Dame Law School
The Notre Dame Law School, or NDLS, is the professional graduate law program of its parent institution, the University of Notre Dame. Established in 1869, NDLS is the oldest Roman Catholic law school in the United States. NDLS is ranked 22nd among the nation's "Top 100 Law Schools" by U.S. News &...
Law Review (2005).