#10013 - Renvoi - Conflict of Laws

DOCTRINE OF RENVOI

WHAT IS IT?

1. Renvoi is a French word meaning ‘send back’ or ‘return unopened’

2. 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.

3. 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).

4. This can be very complex so should it apply?

WHERE IT’S NOT APPLICABLE

1. Briggs (2013) – ‘renvoi is viewed in some quarters with a distaste which sometimes borders on mania’

2. Excluded by Rome I (Art 20) and Rome II (Art 24)

3. 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

4. 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

5. 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

6. 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

1. 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 potentially-involved other court . SO DOES APPLY, WHEN PLEADED:

2. Ex p Arias - when pleaded, to whether a marriage is valid

3. Bank of Africa v Cohen – apply the lex situs, in its renvoi sense, where the question is properly one concerning title to the land

4. s. 212(3) Civil Partnership Act 2004 – doctrine received statutory endorsement in the field of same-sex marriages

GENERAL POSITIONS

1. Briggs – he’s pro-renvoi where need to align with foreign law (ie. immovable property)

2. Clarkson & Hill – they’re anti-renvoi

ANTI-RENVOI

1. COMPLEXITY MAKES LIFE DIFFICULT FOR THE PARTIES

1. 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.

2. Briggs – ‘overstated’ as it rarely applies and only arises where parties specifically plead it

2. CHOICE OF LAW DIDN’T CONSIDER

1. choice of law rules were formulated without consideration for renvoi

2. Cheshire and North – it is ‘objectionable in principle’ that after so much effort has gone into selecting the lex causae, using choice of law rules, the same effort has to go into deciding which law the lex causae would apply to the dispute

3. Briggs – that’s just a rejection without justification, and in any event, common law was able to improve itself with refinement

3. SUBORDINATES ENGLISH LAW

1. It involves capitulation by the lex fori to the lex causae

2. Briggs – ‘misconceived’ as English law decides whether to follow a foreign court’s pattern of reasoning

4. LOOP

1. Clarkson & Hill – refer to the vicious circle that could occur where two countries exercise total renvoi and thus are constantly referring back to the other countries’ law in a cyclical loop

2. Forsyth – so if English judge dons the mantle of a foreign judge only to discover that the foreign judge dons the mantle of the English judge

3. Neilson v Overseas Projects (Australia)– McHugh J dissented in this case due to this fear

4. Lorenzen (1941) – suggested that as renvoi relies on the foreign country not applying total renvoi it means that one is relying on a doctrine whose existence is premised on the assumption that no other country in the world adopts it BUT

5. Briggs describes this fear as a ‘paper tiger’ that was the ‘creation of the febrile academic imagination’ as it’s never arisen and surely solutions would exist

6. Hughes (2010) – he suggests a secondary rule where this cyclical loop occurs which would prevent deadlock; INDEED

7. Neilson v Overseas – Australian High Court suggested that where the loop exists the domestic law of the Lex Fori should apply

5. FOREIGN LAW MIGHT BE DEFICIENT

1. Clarkson & Hill – where conflicts rules of the foreign country refer to the law of a person’s nationality, and the person concerned is a national of the UK or the US, or some other state consistenting of more than one law district. They point to Re O’Keefe as an example of where the foreign law may be deficient or uncertain in its rules prescribing which is the domestic law to be applied in such a case

2. Clarkson & Hill – renvoi could create uniformity amongst the ‘wrong’ countries

3. ME: this argument seems to compromise the doctrine of comity. Plus, as Briggs notes, where the are problems, sensible solutions could be derived

PRO-RENVOI

1. ALIGN WITH FOREIGN COUNTRY

1. Briggs – he’s pro-renvoi where need to align with decision of foreign court (eg. with immovable property). To try and reach the same conclusion as the foreign judge can only be achieved through renvoi. Briggs comments that it would ‘seem very strange’ that an English judge could declare that one person is entitled to foreign land when, as a matter of that foreign law, the outcome would have been different

2. Neilson v Overseas Projects – this was the rational behind this decision. That by applying renvoi in order to more perfectly support the policy underpinning the choice of law rule itself

3. BUT

4. Briggs himself accepts that the question for a foreign judge when enforcing an English judgment will be whether the English judge had the right to make an order concerning local land, rather than asking whether the judge arrived at the right substantive answer. So the decision does not normally rely on whether the adjudicating judge decided correctly

5. Macmillan v Bishopsgate – CA it was suggested that...