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Renvoi Notes

BCL Law Notes > Conflict of Laws Notes

This is an extract of our Renvoi document, which we sell as part of our Conflict of Laws Notes collection written by the top tier of University Of Oxford students.

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DOCTRINE OF RENVOI WHAT IS IT?
a) Renvoi is a French word meaning 'send back' or 'return unopened' b) In private international law, national courts with jurisdiction over a dispute are often required to apply the law of a foreign country as the lex causae. This raises the following question: does this mean the domestic rules of this foreign country apply, or should the foreign law in its entirety, including its choice of law rules, be applied? If the latter approach is adopted, the process is known as renvoi. c) Total Renvoi - Within the doctrine there is also the approach called total renvoi or 'foreign court theory'. This applies where an English judge hearing a case will attempt to apply the law of a foreign court in the same manner as if it were held in the foreign court, including the foreign court's rules of private international law. Thus, potentially, an English judge could apply French private international law, which would point back to English private international law, which could then say apply French law (Re Annesley). d) This can be very complex so should it apply?

WHERE IT'S NOT APPLICABLE a) Briggs (2013) - 'renvoi is viewed in some quarters with a distaste which sometimes borders on mania' b) Excluded by Rome I (Art 20) and Rome II (Art 24) c) Jacobs v Motor Insurers - where renvoi not expressly excluded there is a 'presumption' it's not applicable and needs to be a 'strong reason' for it to apply d) Iran v Berend / Blue Sky One - first instance decisions where its shown not to apply to movable property - which Briggs thinks is wrong as it should

1 e) Briggs - in common law probably doesn't apply to contract or tort. So basically doesn't apply where the judgment will have its effect on the litigants themselves f) Foreign Limitation Act 1984 s.1(5) - says no option to make a renvoi on questions of limitation - Briggs says this is a little clumsy and uncertain

WHERE IT IS APPLICABLE a) Briggs - Where the judgment relates to status, either the ownership of a thing or the marriageability of an individual, as it will have a potential impact on third parties - so need for court to align with the court reached by potentiallyinvolved other court . SO DOES APPLY, WHEN PLEADED: b) Ex p Arias - when pleaded, to whether a marriage is valid c) Bank of Africa v Cohen - apply the lex situs, in its renvoi sense, where the question is properly one concerning title to the land d) s. 212(3) Civil Partnership Act 2004 - doctrine received statutory endorsement in the field of same-sex marriages

GENERAL POSITIONS a) Briggs - he's pro-renvoi where need to align with foreign law (ie. immovable property) b) Clarkson & Hill - they're anti-renvoi

ANTI-RENVOI a) COMPLEXITY MAKES LIFE DIFFICULT FOR THE PARTIES i) Clarkson & Hill - refer to the cost and difficulty involved in proving foreign countries' choice of law rules and their rules on renvoi. Indeed, Re Annesley highlights how it can be especially complex when the question is unsettled in the foreign country itself.

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