RENVOI

(Doctrine, Concept, History, Advantages and Disadvantages)

Submitted by
MIRZA AZHAR HUSSAIN

10th Semester
Batch of (2016-21)
20166912

FACULTY OF LAW
JAMIA MILLIA ISLAMIA

In

May, 2021

UNDER THE GUIDANCE OF

1
 CERTIFICATE

The project entitled “Renvoi” submitted to the Faculty of Law, Jamia Millia Islamia for
Conflict of Laws as part of Internal Assessment is based on my original work carried out under
the guidance of Dr, Saadiya from 2020 to 2021. The Research work has not been submitted
elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the research paper has been duly
acknowledged.

I understand that I, myself would be held responsible and accountable for plagiarism, if any,
detected later on.

Azhar

Date: 30/05/2021

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 TABLE OF CONTENTS

Introduction ......................................................................................................................... 4
History and Definition ......................................................................................................... 4
Types of renvoi .................................................................................................................... 6
Partial or single renvoi ............................................................................................. 6
Total or double renvoi .............................................................................................. 7
The doctrine of total renvoi is difficult to apply…………………………………………….8
Advantages and Disadvantages of Renvoi ........................................................................... 9
Advantages: .............................................................................................................. 9
Disadvantages: ........................................................................................................ 10

Conclusion ........................................................................................................................... 11
Bibliography ........................................................................................................................ 12

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 THE DOCTRINE OF RENVOI IN PRIVATE INTERNATIONAL LAW

INTRODUCTION

The doctrine of renvoi is one of the very important and vital subjects of Private International
Law, or Conflict of Laws. Because sometimes court sees that the issue will be decided in
accordance with the law of another country, it is the time when doctrine of renvoi plays its role
in solving the problem.

Renvoi is a technique for solving problems which arise out of differences between the
connecting factor used by English law and that of the law to which the English connecting
factor leads.1

In the present paper, we discussed in some details, the definition, nature, kinds, advantages and
disadvantages and other important issues related to the doctrine of renvoi in private
international law and we endeavoured to generally clarify this concept.

HISTORY AND DEFINITION

The doctrine of renvoi is a recent concept in the English legal system. However, it is not clear
when for the first time renvoi was introduced. Presumably, it was introduced into English law
in the year 18512 as an escape device for avoiding the rigidity of the earlier English conflict
rules. 3

1
Collier, Conflict of Laws (Cambridge: Cambridge University Press, 5115), 51.
2
According to some writers, such as Varun Vaish, “the Renvoi question came up for consideration before an
English Court for the first time in the case of In Re Johnson 55 in the early 5211s.” see:
http://poseidon15.ssrn.com/delivery.php?
3
J. H.C. Morris, The Conflict of Laws (London: Stevens and Sons Ltd., 5284)

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As abovementioned, for the first time renvoi was used in in 1841 in Collier v. Rivaz case. In
this case, which was about formal validity of wills,4 single renvoi was used. This status of the
renvoi doctrine remained until 1926, when Russell J in Re Annesley introduced the double
renvoi doctrine into English law.5

After some decades its usage was intensely increased. A typical old note of 1904 on the doctrine
of renvoi remarks: “a doctrine, of a revolutionary character, has of late been knocking at the
doors of the English system of law, to which the not entirely apt name of the Renvoi-theory has
been given,”6

Renvoi is a French word, which literally means “to send back”7 or “return”. Jason Chuah
defines renvoi in simple way and also very scholarly. He aptly remarks: -

“According to this theory, an English judge who is referred by English law to a foreign legal
system must apply whatever law a court in that foreign system would apply. Naturally, this
depends on whether or not that foreign legal system recognizes the doctrine of renvoi.”8

When one read such a simple statement, obviously it comes into mind that the doctrine of
renvoi is easy and simple, while in some cases it is very difficult especially differentiation
between this and other alike notions.

In some cases, there is more complications and difficulties, especially when Transmission
exists. For instance, a citizen of state X domiciled in state Y may leave movable and immovable
property in two or three states. This may give rise to transmission. At times, there may be resort
to what is called double or total renvoi.

Now, after we have analysed history, etymology and also definition of doctrine of renvoi, we
will be able to discuss two types of renvoi and some relevant cases.

4
Ibid.
5
Ibid.
6
John Pawley Bate, Notes on the Doctrine of Renvoi in Private International Law (London: Stevens and sons,
1904), 1.
7
Oxford Dictionary of Law on Renvoi, Accessed on 10/12/2010.
8
Josan Chuah and Alina Kaczorowska, Q & A series Conflict of Laws.

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TYPES OF RENVOI

Before a judge resort to the doctrine of renvoi, there is a solution of application of internal law
only. But if there was no room for application of internal law, then judge may apply the proper
type of renvoi.9.

As it is well known, renvoi has two types. We will discuss both kinds of renvoi in some length.

1. Partial or single renvoi

Partial of single renvoi applies in a case when rule of law of a country refers it to another
country, but law of later country again refers the case to the law of the former. In this stance,
the judge of the country applies laws of his own country, but after the second country refer it.

The following case which is presented by Abla Mayss as an example to describe this
type of renvoi, would further illustrate it:

In Re Ross (1930), the testatrix, a British national and domiciled in Italy. She died in
Italy and left there movable and immovable property as well as some movable property
in England. She had made a will about her movable and immovable property in Italy
and England. This Will was valid in English law but invalid in Italian law as she did
not leave half of the property for her son. As she was domiciled in Italy, the English
court referred the case to Italian court. Under English conflict of laws, the issue was
governed by the law of the domicile of the testatrix (Italian law). However, under Italian
conflict of laws, the issue was governed by the nationality of the testatrix (English law).
Hence, the Italian court referred the issue back to the English court, which held that the
will was valid. 10

Another important case was that of Forgo which was decided in the court of Cassation of France
in 1773:

Forgo, an illegitimate Bavarian national, was born with a domicile in Bavaria, but lived
most of his life in France without ever acquiring a “domicile” under French law. He left
movable property in France but no relatives except for some remote collateral relatives
of his mother. These could not succeed him under French law, and under French law
the property, being ownerless, would go to the French state. Under Bavarian law they

9
For details of application of internal laws, see; North, P. M., Cheshire and North Private International Law
(London: Butterworths, 1979).
10
Mayss, Conflict of Laws, 7-8.

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 could succeed. The French court would determine the question by applying Bavarian
law but the state argued that the Bavarian courts would apply French law, and the
French courts should do otherwise.11

The case was decided in favour of the French state, and it is obvious that the reference here
was to the Bavarian rules of conflict.

2. Total or double renvoi

Total or double renvoi is also known as “foreign court theory”. 12 Cheshire and North defines
total renvoi in these words: “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 hearing the case.”13 An example of total renvoi is in Re Annesley
(1926) case which in nutshell is: T, an Englishwoman of British domicile of origin, died
domiciled in France in the English sense, but not the French sense because she had not obtained
authority to establish her domicile in France as required by Article 13 of the Civil Code [she
failed to comply with registration formalities]. She left a will which purported to dispose of all
her property. By French law, T could only dispose of one-third of her property because she left
two children surviving her. Evidence was given that a French court would refer to English law
as T’s national law would accept the renvoi back to French law. French domestic law was
applied and T’s will was only effective to dispose of one-third of her property.14

In the case of capacity of the Englishman to marry, the doctrine of total renvoi would involve
three steps. O’Brien describes it:

(a) The English court determines the lex causae in the usual way, thus applying the dual
domicile test and referring the issue of marital capacity to Italian law, i.e., lex domicilii;

(b) The English court applies the conflict rules of the lex causae. Thus, it would find
that an Italian court would refer to English law as the lex patriae;

(c) As we are back where we started, the English court looks to Italian law to see
whether an Italian court would accept or reject the remission, thus trying to avoid any
further toing and froing. If an Italian court would accept the reference back, the English
court would apply Italian domestic law to the question of marital capacity. If an Italian

11
Collier, Conflict of Laws, 22.
12
Cheshire and North, Private International Law.
13
Ibid.
14
Morris, Conflict of Laws, 47.

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 court would not accept the remission, the English court would apply English domestic
law to the substantive issue. 15

THE DOCTRINE OF TOTAL RENVOI IS DIFFICULT TO APPLY

The said doctrine obliges the English judges to ascertain as a fact that the precise doctrine that
the foreign court would give. This confronts him with two difficulties. First, he must ascertain
what view prevails in the foreign country with regard to the doctrine of single renvoi. Secondly,
where the foreign rule for choice of law selects the national law of the propitious, the judge
must ascertain what is meant by national law.

The chosen law that emerges from the application of the doctrine depends on whether the
doctrine of single renvoi is recognized by the law of the domicile. If the court of the domicile
would accept the remission made to it by English law, it would determine the case according
to its own internal law; otherwise, it would apply the internal law of England. This dependence
of the right of the parties on the attitude of the law of the domicile to the renvoi doctrine is a
cause of acute embarrassment.

There are few matters on which it is more difficult to obtain reliable information not least
because of the undue influence of expert witnesses over the process.

Alternatively, the English judge may be confronted with a somewhat arduous and invidious
task, as witness the following remarks of WYNN-PARRY J: It would be difficult to imagine a
harder task than that which faces me, namely, of expounding for the first time either to this
country or to Spain. Which up to the present time has made no pronouncement on the subject,
and having to base that exposition on evidence which satisfies me that on this subject there
exists a profound cleavage of legal opinion in Spain and two conflicting decisions of court of
inferior jurisdiction.

The second difficulty that may arise is to ascribe a definite meaning to the expression national
law. When a private international law rules of the country in which the English judge is
presumed to sit select the nationality of a person as the connecting factor, it becomes necessary
to correlate the national law with some precise system of internal law by which the issue before

15
O’Brien, Conflict of Laws, 137

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the court may be determined. This is a simple matter when the person is a national of some
country such as Sweden, which has a unitary system of territorial law. There is a single body
of internal law applicable throughout the territory known as Sweden. The position is far
different where the country of nationality comprises several systems of territorial law, as is true
for example of the United Kingdom and the USA.

ADVANTAGES AND DISADVANTAGES OF RENVOI

Same like other academic discourses, the doctrine of renvoi has its advocates and opponents.
There are some scholars who focused on the benefits of this doctrine and see it as a useful
doctrine and a proper solution. On the other hand, some jurists are against it and look at it as
an inconvenient solution. Here, we will write arguments of both, the advocates.

1. Advantages:

Those who favour renvoi provide many arguments, we summarized it in these points;

i). First vital benefit of renvoi is, by resorting to foreign choice of law rules, the courts
avoid a foreign internal law that has no connection with the propositus. 16 Clarkson and
Hill define it in simple words:

“It is claimed that it is self-defeating to purport to apply a foreign law unless

Then they provide an example describing this:

1. If a British person dies intestate domiciled in Mexico leaving a movable estate in

2. The second great advantage is said that in sometimes it promotes the reasonable
expectation of the parties.19 This happened in Re Annesley case.

16
https://www.academia.edu/4211283/THE_ADVANTAGES_AND_DISADVANTAGES_OF_RENVOI
17
Clarkson and Jonathan Hill, The Conflict of Laws (Oxford: Oxford University Press, 2011),37.
18
Ibid.
19
Ibid, 39.

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 3. The third is; it is often stated that the principal reason for resorting to total renvoi is
to achieve uniformity in terms of the resolution of the case, irrespective of the
country in whose court the claim is brought. If the English court decides the case in
exactly the same way as the court of a foreign country would decide it, by using the
foreign country’s conflict rules, including its rules of renvoi, then uniformity with
that country results. 20

4. Fourth advantage said by those who advocating for renvoi –especially by Briggs is
that it prevents the forum shopping. If the English court apply the law of another
country, then there would be no need for forum shopping. 21

Briggs says: “After all, there will be no incentive to forum shop to England if the English court
will try to determine the case in the same as a judge of the court whose law is the chosen law.”22

2. Disadvantages:

Doctrine of renvoi also has some opponents. They presented very important arguments against
this doctrine. These arguments could not be overlooked, this is why we summarized it in these
points;

i. One of the important criticisms that renvoi faced with is that; 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.23

ii. There are also practical difficulties involved in the application of renvoi. One
arises when the conflict rules of foreign country refer to the law of a person’s

20
Ibid.
21
Adrian Brigs, The Conflict of Laws (Oxford: Oxford University Press, 2013), 23.
22
Ibid.
23
Private International Law: Renvoi (Accessed: 23/12/2010).

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 nationality, and the person concern is a national of the UK or the US. In some
cases, it is not certain which law should be applied.24

iii. Another difficulty arising where foreign law refers to nationality; easy for
unitary states, but problematic for federal states.25

iv. Another criticism of renvoi lays, while English court deciding what the foreign
country’s rules of renvoi are, especially when the question is unsettled in the
foreign country itself. 26

v. Another, that renvoi subordinates English choice of law rules to those of a

vi. Also, one of the practical problems with the doctrine of renvoi is that it generally
requires detailed expert evidence about the state of foreign law.

CONCLUSION

After we have gone through history, definition, types and advantages and disadvantages of the
doctrine of renvoi, it is important to keep in mind that it does not apply to all cases. As Abla
Mayss remarked about it: “renvoi applies to questions of intestate succession and essential
validity of wills. There is some authority to the effect that it applies to ‘marriage’ and that it
should apply to cases involving title to immovable property. Renvoi does not, however, find a
place in the fields of contract or tort.”28

24
Clarkson and Jonathan Hill, The Conflict of Laws, 42.
25
Private International Law: Renvoi.
26
Clarkson and Jonathan Hill, The Conflict of Laws, 43.
27
Adrian Brigs, The Conflict of Laws, 22.
28
Mayss, Principles of Conflict of Laws, 9.

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 BIBLIOGRAPHY

1. Bate, John Pawley, Notes on the Doctrine of Renvoi in Private International Law,
(London: Stevens and sons, 1904)
2. Brigs, Adrian, The Conflict of Laws (Oxford: Oxford University Press, 2013), 22.
3. Collier, J. G., Conflict of Laws (Cambridge: Cambridge University Press, 2001)
4. Cheshire and North, Private International Law (London: Butterworths, 1979)
5. Chuah, Josan and Kaczorowska, Alina, Q & A series Conflict of Laws (London:
Cavendish Publishing Limited, 2000)
6. Clarkson, CMV and Hill, Jonathan, The Conflict of Laws (Oxford: Oxford University
Press, 2011)
7. Mayss, Abla, Principles of Conflict of Laws (London: Cavendish Publishing Ltd., 1994)
8. Morris, J. H. C., Cases and Materials on Private International Law (London:
Butterworths, 1984)
9. Morris, J. H. C., Dicey and Morris on the Conflict of Laws (London: Stevens and Sons
Ltd., 1980)
10. Morris, J. H.C., The Conflict of Laws (London: Stevens and Sons Ltd., 1984)
11. O’Brien, John., Conflict of Laws (London: Cavendish Publishing Ltd., 1999)
12. Stone, Peter., Conflict of Laws (London: Longman, 1990)
13. Vaish Varun, “The Renvoie Theory, its Development, Application to Contractual
Choice of Law and the Way Forward”. (Accessed on: 27/05/2021)
http://poseidon15.ssrn.com/delivery.php?
14. “Private International Law: Renvoi” (Accessed: 28/05/2021)
https://www.google.nl/url?sa=t&rct=j&q=&esrc=s&source=web&cd=8&cad=rja&ua
ct=8&vd=1ahUKEwijrODh5efJAhVGRhQKHQt2CNAQFghTMAc&url=http%3A%
5F%5Fbasilnet.awardspace.com.
15. “THE ADVANTAGES AND DISADVANTAGES OF RENVOI” (Accessed:
28/05/2021)
https://www.academia.edu/4211283/THE_ADVANTAGES_AND_DISADVANTAG
ES_OF_RENVOI.

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