The doctrine of Renvoi according to Beaumont & McEleavy1, comes to an action in a

situation when the choice of law of a particular forum refer an issue to the court of another

country which the latter country sends back the issue on to the law of former country or a

third country under its choice of law rules. Recognition of this doctrine signifies that,

regulations that regulate the conflict of laws cannot be incorporated as only an ordinary or

internal law of a foreign state or a forum, instead its rule of the conflict of laws as well. 2

Although the doctrine has been followed by the courts in England over a period of time but

there are some legitimate arguments on the relevancy of this doctrine at the current date

keeping the fact of England’s status as a member of the European Union and a signatory to

the various conventions in mind.

In the case of Guernsey v The Imperial Bank of Canada3 an action was brought in the

District court of Wyoming against an indorser. The note was indorsed and made in Illinois

whereas was payable in Canada. Presentment, demand, protest were made and dis-

honoured was in compliance with the law of Canada. Here the court mentioned that ‘the

law of the state of Illinois’ referred in the judgement did not only meant as an ordinary law

that governs notice but incorporated as the law of Illinois as whole. Lando v Lando4 was a

case where a couple who were resident in Minnesota but married in Germany by a person

who was under the law of Germany not permitted to join persons in marriage. The couple

lived in Vienna until the husband died before returning to his country. The court did not

mention a single word whether the German law means only the law in relation to marriage

or The German law as a whole. In these situations, owing to a difference in the private
1
“Malta Law Guide” (Malta Law Guide, 13th October 2018) https://maltalawguide.com/private-international-
law/renvoi/ accessed 27 July 2010
2

Adrian Briggs, ‘In Praise and Defence of Renvoi’, (1998) 47 Int’l & Comp. L.Q. 877, 878
3
(1911, C. C. A. 8 C.) 188 Fed. 300.
4
(1910) II2 Minn. 257, 127 N. W. 1125.

1
international law of two countries the doctrine of renvoi will arise and there can be three

possible solutions5 such as firstly, take the law of Canada and Germany to mean the internal

law, secondly can decide the case following the doctrine of single renvoi or thirdly the

doctrine of double renvoi can be followed.

While talking about the doctrine of single renvoi, it refers to a situation when the principles

of the conflict of laws of a particular country refers the law of foreign country whereas the

latter country refers back the issue to the primary country under its choice of law and

eventually it is chosen under the law of the principal country. 6 This theory is commonly

known as the doctrine of single or partial renvoi. Collier v Rivaz,7 is the case where use of

this doctrine can be seen for the very first time on the issue of the formal validity of the

wills. Forgo’s case8 is a landmark case which can illustrate the best application of the theory.

A person holding the nationality of Bavaria was died in France (lived there since very young

age) without any will. According to the Bavarian law movables can be passed to collateral

relatives whereas under French law it will be passed on to the government. French Court

referred the issue to Bavarian private international law under which it send back the

problem to the French Court. Therefore, French Court applied their internal law while

accepting the reference. Furthermore, in the Re Ross case,9 a women domiciled in Italy left

land and many other properties in both Italy and England. She was English by nationality.

The will she left was substantial under English law but was not valid under Italian law.

English Court referred the issue to the Italian Court where they send it back under their

conflict of law principles. Italian law at that time did not ‘recognise’ the renvoi back,

5
Tezcan v Tezcan (1992) 87 DLR (4th) 503
6
Cheshire, North and Fawcett, Private International law (9 th edition, Oxford University Press 1979) 60, 61
7
(1841) 2 Curt- 855
8
10 Clunet, 63 (1983)
9
[1930] 1 Ch 377

2
therefore the issue was chosen as per English Law.10 This case is a demonstration for the

cases involving remission. Moving forward, R v Brentwood superintendent registrar of

marriages, ex p Arias,11 is a case regarding to the limits of a husband to remarry who was

domiciled in Switzerland and a national of Italy. The English Court referred Swiss law while

the Swiss law in relation to the matter of fact was represented by the law of nationality.

Hence, English Court eventually connected Italian law. This category of renvoi where the

English conflict regulations focuses to a third country is known as transmission. 12 However

whether in a form of remission or transmission, the doctrine of single renvoi is no longer a

part of English law according to the case of Re Askew.13 Therefore, if English Court refers an

issue to the law of the domicile country and the latter country sends it back, the judge does

not simply accept the remission and apply the internal law.

Moreover, the doctrine of double renvoi is also known as ‘total renvoi’ or ‘the English

doctrine of renvoi’. When an English judge will be referred by his own law to a legal system

of a foreign country, he must have to apply whatever law the foreign court would have been

applied if it were hearing the case. This theory is regarded as double renvoi. 14 While most of

the European countries do not use this application, England and France have accepted this

doctrine. Re Annesley case15 can be used as an illustration to understand this doctrine. Here

a British women domiciled in France according to the English law died with a will which was

invalid under French law. English Court held that, if French Court were hearing the case it

10
Dicey and Morris, Conflict of Laws (9st Edition, Stevens & Sons Limited 1980) 69,70
11
[1969] 2 QB 956, [1968] 3 ALL E R 279, Morris & North 251
12
Elsabe Schoeman, “Renvoi: Throwing (and Catching) the Boomerang – Neilson v
Overseas Projects Corporation of Victoria Ltd”, (2006) 25 U. Queensland L.J. 203
13

[1930] 2 ch 259.
14
Lorenzen, Ernest G., "Renvoi Doctrine in the Conflict of Laws - Meaning of "The Law of a Country""
(1918).Faculty ScholarshipSeries. 4564.
15

[1926] ch 692

3
would have been referred the case to the English law and had to accept the renvoi back to

their domestic law. Therefore, the court connected the French law. Re O’Keefe16 is another

application of this theory where an intestate who was clearly domiciled in Italy but the

Italian Court mentioned that Irish law must be referred as nationality was very crucial under

their law. The question before the English Court in the case of Re Askew was the validity of

an appointment. Here an English man who was domiciled in Germany wanted to revoke his

previous settled trust and make a new appointment in favour of his daughter with his

second wife in Germany. English private international law would refer the case to the

German law as he was domiciled there but under German private international law the issue

would have been referred back. Therefore the English court put them into the shoe of

German law and applied it.

However, the theory of double renvoi can be differentiate from the doctrine of singe renvoi

considering the fact that single renvoi applies internal law of the country whereas double

renvoi put them into a shoe of foreign country and apply the conflict rules of foreign law 17.

So if the Forgo’s case was dealt under double renvoi the court would have been apply the

Bavarian law to decide the case instead of the French law. Another distinction can be seen,

as single renvoi does not force the courts to ask how foreign court will choose a matter

alongside with the probability that a foreign court may accept the renvoi is not even taken

into account under this theory. Further, in the framework of double renvoi, there can never

be more than two remissions which clearly distinct it from the single renvoi theory. For

example we can look after a hypothetical situation 18 to understand this point, where an

Italian national who was domiciled in Spain left his movables in France. Now, as a law of
16
[1940] Ch. 128
17
Larry Kramer, ‘Return of the Renvoi’ (1991) 66 New York University Law Review 979, 1003
18
Joseph M. Cormack, ‘Renvoi, Characterization, Localization and Preliminary Questions in the Conflict of Laws
(1941) 14 Southern California Law Review 221

4
discussion France will hear the case and will look at the Spanish law as deceased’s domicile

was there. But Spanish law looks at the deceased’s nationality. As Italy does not accept

double renvoi therefore, France will apply Italian law. Another distinction that can be

noticed is that how the law would be chosen. In term of single renvoi principal country

reject the remission and apply their own internal law whereas in case of double renvoi one

country just take a virtual visit to the foreign country’s law and apply that law as we can see

in the case of Re Annesley and Re Askew. Moreover, in the case of Kotia v Nahas19, the

Privy Council has mentioned few more confusions that exist between the two doctrines.

That to be said, relevancy of the doctrine of renvoi at the time of the current date has been

questioned many times considering the fact that England is a member of European Union

and a signatory to many conventions as well. There are few EU regulations and UK

legislations which have trimmed out the doctrine from certain areas of law including contact

and tort20. In addition English case laws suggest that, the doctrine became out dated and

have very few scopes for its applicability in England.

The first problem with the doctrine is that it does not provide the surety of uniform

decisions.21 Development of this doctrine was to ensure that, uniform decision will come out

for a same issue every time, regardless of the location of the court which is near to

impossible because this can be only possible when one of the countries accept it while the

other will reject. Further, if both countries accept the doctrine then the outcome will fall

nowhere as they will end up throwing the issue back and forth. Rejection of the doctrine can

19
[1941] A.C. 403, 413.
20
Macmillan Inc v Bishopsgate Investment Trust Plc (No.3) [1995] 3 All E.R. 747
21
Cheshire, North & Fawcett, Private International Law (15 th edition, Oxford University Press 2017) 61

5
be seen in Article 20 of the Rome I Regulations22. This regulations basically excluded renvoi

from contractual relationships (Contracts law). The objective of this exclusion was very clear

and that is to produce certainty, conformity alongside with saving time for judges by not

examining foreign laws. According to Lord Diplock in the case of Amin Rasheed Shipping

Corp v Kuwait Insurance Co,23 if from the terms of the contract it becomes apparent that

parties intended to refer to a particular legal system, their intention will be prevailed. But if

not explicit, then it will be an implied reference to a particular system of laws. Thus they

excluded the doctrine of renvoi does not matter whether remission or transmission. The

Islamic Republic of Iran v Berend,24 is another case where the doctrine got rejected to

achieve consistency and certainty. Here the court decided that as Mrs Berend acquired the

title in a good faith and received her delivery in France therefore, the applicable law was

French law according to the lex situs rule. Blue Sky One Ltd & Ors v Mahan Air & Anor,25 is

another demonstration that rejects the doctrine.

Moreover, Rome II Regulations was introduced to settle the problems in relation to choice

of law as being lex loci damni for tort cases. This is when the defendant is domiciled in one

of the European Union member states. Further, for cases where the defendant is not

domiciled in an EU member states section 9(5) of the Private International Law

(Miscellaneous Provisions) Act 199526 will apply which trimmed out any choice of law

regulations regarding to foreign law. In addition it basically excluded any possibility of

discussion on the doctrine of renvoi. Article 24 of the Rome II Regulations 27 expressly

22
Regulation 593/2008 on the Law Applicable to Contractual Obligations (Rome I) [2008] OJ L177/6, art 20
23
[1984] 1 AC 50 (HL)
24
[2007] EWHC 132 (QB)
25
[2010] EWCA 631 (Comm)
26
The Private International Law (Miscellaneous Provisions) Act 1995, s 9(5)
27
Regulation 864/2007 on the Law Applicable to Non-contractual Obligations (Rome II) [2008] OJ LI 99/40, art
24

6
rejected renvoi in term of non-contractual obligations. Clinton David Jacobs v Motor

Insurers Bureau28 is a case where Moore-Bick LJ mentioned that, unless a very strong reason

can be found to think otherwise, doctrine of renvoi is assumed to be excluded.

Furthermore, European Union has introduced Brussels IV Regulation where Article 26(2)

has excluded renvoi. However, under Article 26(1) non signatory countries are not bound to

follow the regulations. Thus the regulation tried to maintain the uniformity of decisions

among the member states. Here for not being a part of this regulation there is a room for

United Kingdom.

Moving forward, the Hague Convention on the Civil Aspects of International Child

Abduction29, keeps the door open for the doctrine of renvoi although the cases of Re JB30,

Hunter v Murrow31, Fairfax v Ireton 32have indicated that doctrine of renvoi should be

applied only in those cases where it will bring up the expected outcome.

Nevertheless, the scope of the doctrine of renvoi appears to be very limited on certain cases

such as family law issues, claims to foreign immovable, validity of bequests. On the other

hand, there are numerous cases like insurance, sale of movables; tort and so on where

English Courts have never vacillated to apply their internal law. Further, a crystal clear

demonstration of rejecting the doctrine can be seen in the field of contracts. Article 15 of

the Rome Convention has ensured their position by expressly excluding the doctrine which

is repeated in the Article 20 of the Rome I Regulations. In term of the field of tort we can

visualise the same approach according to the Article 24 of the Rome II Regulations.

28

[2010] EWHC 231 (QB) at 27

29
Convention on the Civil Aspects of International Child Abduction 1343 UNTS 98
30
[2003] EWHC 2130 (Fan), [2004] 1 FLR 796
31
[2005] EWCA Civ 976, [2005] 2 FLR 1119
32
[2009] NZCA 100, [2009] 3 NZLR 289

7
However, many decisions showed us that renvoi has been applied in certain areas of cases.

According to Falconbridge33, doctrine of renvoi cannot simply reject because it has been

proved very efficient and provided solution for at least particular exceptional questions.

Moreover, in the case of Neilson v Overseas Projects Corpn of Victoria Ltd 34 it was

mentioned by the High Court of Australia that, renvoi is playing a supporting role to achieve

the goals of Choice of laws.

To conclude, based on the arguments and decided cases that have been discussed and

explained it can be said that the relevancy of the doctrine of renvoi acts like a variable and

depends on the type of case that is going to be handled. For certain areas such as status or

disposition of the property on death, the doctrine is still relevant and provided useful

solutions whereas English Courts have restrained themselves from using the doctrine

especially in relation to the field of contract and tort considering the fact that they are a

member of European Union and a signatory to the various conventions.

Bibliography:

Books:

33
Falconbridge (1953) 6 Vanderbilt LR 708
34
[2005] HCA 54

8
Cheshire, North and Fawcett, Private International law (9th edition, Oxford University Press

1979) 60, 61

Dicey and Morris, Conflict of Laws (9st Edition, Stevens & Sons Limited 1980) 69,70

Briggs A, ‘The Meaning of Law: Renvoi’ in The Conflict of Laws (1st edn, Oxford

University Press, 2002

Clarkson C M V and Hill J, The Conflict of Laws (4th edn, Oxford University Press

2011)

Cases:

Guernsey v The Imperial Bank of Canada (1911, C. C. A. 8 C.) 188 Fed. 300.

Lando v Lando (1910) II2 Minn. 257, 127 N. W. 1125.

Tezcan v Tezcan (1992) 87 DLR (4th) 503

Collier v Rivaz (1841) 2 Curt- 855

Forgo’s case 10 Clunet, 63 (1983)

Re Ross (1930) 1 Ch 377

R v Brentwood superintendent registrar of marriages, ex p Arias [1969] 2 QB 956, [1968] 3

ALL E R 279, Morris & North 251

Re Askew [1930] 2 ch 259

Re Annesley [1926] ch 692

9
Re O’Keefe [1940] Ch. 128

Kotia v Nahas [1941] A.C. 403, 413.

Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984] 1 AC 50 (HL)

The Islamic Republic of Iran v Berend [2007] EWHC 132 (QB)

Blue Sky One Ltd & Ors v Mahan Air & Anor [2010] EWCA 631 (Comm)

Clinton David Jacobs v Motor Insurers Bureau [2010] EWHC 231 (QB) at 27

Re JB [2003] EWHC 2130 (Fan), [2004] 1 FLR 796

Hunter v Murrow [2005] EWCA Civ 976, [2005] 2 FLR 1119

Fairfax v Ireton [2009] NZCA 100, [2009] 3 NZLR 289

Falconbridge (1953) 6 Vanderbilt LR 708

Neilson v Overseas Projects Corpn of Victoria Ltd [2005] HCA 54

EU Legislations:

Regulation 593/2008 on the Law Applicable to Contractual Obligations (Rome I) [2008] OJ

L177/6

Regulation 864/2007 on the Law Applicable to Non-contractual Obligations (Rome II) [2008]

OJ LI 99/40

Brussels IV Regulation [2015]

Hague Convention on the Civil Aspects of International Child Abduction 1343 UNTS 98

10
The Rome Convention

Journals:

Briggs A, ‘In Praise and Defence of Renvoi’, (1998) 47 Int’l & Comp. L.Q. 877, 878

Schoeman E, “Renvoi: Throwing (and Catching) the Boomerang – Neilson v Overseas

Projects Corporation of Victoria Ltd”, (2006) 25 U. Queensland L.J. 203

Lorenzen, G E, "Renvoi Doctrine in the Conflict of Laws - Meaning of "The Law of a Country""

(1918).Faculty Scholarship Series 4564

Kramer L, ‘Return of the Renvoi’ (1991) 66 New York University Law Review 979, 1003

Cormack J M, ‘Renvoi, Characterization, Localization and Preliminary Questions in the

Conflict of Laws (1941) 14 Southern California Law Review 221

Lorenzen, G E, "Renvoi Theory and the Application of Foreign Law: Renvoi in Particular

Classes of Cases" (1910) FacultyScholarship Series Paper 4523.

See R, “Through the Looking Glass: Renvoi in the New Zealand Context” (2012) Auckland

University Law Review Vol 18

Statute:

The Private International Law (Miscellaneous Provisions) Act 1995

11