Name: kritika Shaw

Bba.llb (hons) Section: B

Enrollment id: 18FLICDDN01072

Answer 1:

SUBSTANCE AND PROCEDURE

• The determination of what constitutes substance and procedure, also defined as 'right and remedy', is
another crucial issue in the conflict of laws. • In Ogden v Ogden [1908] In september 1898 A Nineteen
year old Frenchman, Philip, domiciled in france married an english domiciled women Sarah in London.
He did so without the consent of his parents as used to be required by the French law. (Under french
law the marriage of a person below the age of 25 without the consent of the parent is null and void)
Later, the French citizen was able to obtain annulment of the marriage in a French court due to the said
lack of consent.

• Upon hearing this,the englishwomen brought proceeding in the highcourt of England for the
dissolution of her marriage on the ground of husbands desertion and adultery. The petition was
dismissed for want of jurisdiction.

• Consequently, (1906) the English woman married another English man, Ogden with whom she lived
for some time.

• Now Ogden filed a suit asking for a decree of nullity on the ground that at the time of marriage she
was already married women.

• The court passed a decree annulling the marriage. The English court said that her marriage with the
Frenchman was valid as the court would not recognize the nullity decree pronounced by the french
court.

• Therefore English court held that her marriage with Ogden was a nullity • The parental consent was
characterized by English court as matter rela formalities

• The ultimate question is whether French or English law is to be applied to the matter of consent of
parents. The answer to the question depends upon whether the consent of parents is to be
characterized as appertaining to capacity or form

Had the English court recognise the marriage of sarah and philip as matter related to capacity - the
marrige of philip and sarah would have been declared invalid.

Answer 2:
 An english women whose domicile of choice was  in Italy by will left her all property to her distant
relatives to the exclusion  is  her son. Now  if the case is filed for claim of the property  by both her son
and her distant relative decide the case by applying  appropriate choice of law ?

Answer- RENVOI

The Doctrine of Renvoi is one of the significant and fundamental subjects of Private International Law or
Conflict of Laws. Again, the Court sees that the issue will be chosen as per the law of another nation, it is
when regulation of renvoi assumes its job in taking care of the issue. It’s a method to take care of the
cases in which there exists a foreign element.

The Doctrine of Renvoi is a legal doctrine which applies when a court is faced with a conflict of law and
must consider the law of another state, referred to as private international law ("PIL") rules. This can
apply when considering foreign issues arising in succession planning and in administering estates.

The word Renvoi comes from the French send back or return unopened. The Doctrine of Renvoi is the
process by which the court adopts the rules of a foreign jurisdiction with respect to any conflict of law
that arises. The idea behind the doctrine is that it prevents forum shopping and the same law is applied
to achieve the same outcome regardless of where the case is actually dealt with. The system of Renvoi
attempts to achieve that end.

Meaning of the Renvoi

The Doctrine of Renvoi is the process by which the Court adopts the rules of a foreign jurisdiction with
respect to any conflict of laws that arises. The idea behind this doctrine is to prevent forum
shopping and the same law is applied to achieve the same outcome regardless of where the case is
actually dealt with. “Renvoi” originates from the French “send back” or “return unopened”. The
“Convention of Renvoi” is the procedure by which the Court embraces the principles of an foreign law as
for any contention of law that emerges.

• British subject domiciled in

The problem of renvoi arises in those cases where the rules of PIL either refer back to the law of the
forum or refer to the law of a third country- for the former situation, the French word is ‘renvoi’- the
German word is ‘Ruckverweisung’ and the English ‘remission’- for the latter situation, the German term
is ‘Weiterverweisung’ and the English, ‘transmission’. In the sixth edition of Dicey’s Conflict of laws, the
former is called a patent conflict of conflict of rules  involving a reference back to the forum, and the
latter, ‘a conflict involving a reference to a third country.’

Procedural law + substantive law= Internal law

Procer law + subs.law +PIL

British subject domiciled in Italy died intestate leaving movable property in England
British court refer the matter  to -> Italy and Italian law says British law will apply – this is known as
single renvoi(remission)

 A deceased person is German and domiciled in Italy and leaving movable property located in England

 British court refer the matter to -> Italy then Italian law refer it to Germany – This is known as docterine
of double renvoi ( Transmission)

Forgo’s case [(1883) 10 Cluner 63] (example of Single renvoi):

Forgo, a Bavarian national, died intestate in France where he lived since he was five. According to French
internal law the property passes to the French govt and according to Bavarian law the property goes to
collateral relatives. The French PIL referred the matter to Bavarian law; but the Bavarian PIL referred it
to French law. The Court of Cassation in France accepted the reference and applied the French internal
law vide which the property goes to the French Govt.

The doctrine can be traced back to the year 1652 – several theories of renvoi have been propounded-
the principal theories are:

Mutual disclaimer theory; The theory of Renvoi proper; and The foreign court theory.

Mutual disclaimer theory- Von Bar and Westlake principal propounders- starts on the assumption that
all rules of PIL are in reality rules by which one state, for the purpose of administration of private law,
defines its own jurisdiction and the jurisdiction of foreign states- in all cases where there is a conflict
between the law of forum and the law of foreign country, invariably the theory is for the application of
the law of forum- in other words, whenever the rules of conflict of laws of two countries are different
the presumption is that there is no rule of internal law of either country applicable to the legal
relationship, rather there is a gap, a vacuum, which has to be filled up and the best way to fill it is to
apply the internal law of the forum, or what Westlake calls, ordinary law of the forum.

 The difference between Von Bar and Westlake is that Westlake seems to apply his theory to all cases
where the difference in the rules of two countries amounts to mutual disclaimer; Von Bar seems to
restrict his theory to cases where personal statutes are involved.

Theory of Renvoi proper:

The application of renvoi in its proper or narrow form would always, like the mutual disclaimer theory,
lead to the application of lex fori- however, bases of both are different- this theory is based on the
assumption that the rules of PIL in each country are based on the principle of comity which implies a
mutual agreement among the states for the application of each others laws- in other words, the basis is
reciprocity- if there is no reciprocity lex fori would apply

 Foreign court theory:

In 1841, Sir Herbert Jenner, an English judge formulated this theory thus: ‘the court sitting here decides
from the persons skilled in that law, and decides as if it would if sitting in Belgium.
Some exceptional cases where the doctrine of renvoi is very much useful.

1- Title of foreign land

2- Title to foreign movables

3- status

4- formalities of will

5- Transinvolved

Conclusion

In this case  the law regarding where the property is situated. The movables in Italy because the testatrix
(the person who writes the will) holds the Italian domicile. As a result, the the law will be applied is the
Italian law with respect to the immovable property situated in Italy. As Italy will not accept the renvoi
based issue was decided in accordance with English law.

Answer 3:

On account of basic ideological differences among the countries of the world, it is not possible to
achieve unification of all private laws. Therefore, another method of avoiding the situation where courts
in different countries may arrive at different results on the same matter is the unification of the rules of
Private International Law. Considering the importance of the unification of rules of Private International
Law, several serious international efforts have been made in this direction, some with success.

: The basis or Foundation of Private international laws arises out of the need of internationally
compatible legislations. It has also been suggested that the Private International Laws are based on the
Doctrine of Comity. The doctrine of comity refers to mutual understanding between various states,
comity is nothing but the accepted rules which are mutually acceptable by different states and apply the
same with cooperation, giving ease to each other.

One of the finest examples of recognition of comity is Section 11 of the Foreign Marriages Act, 1969.
Through this Act, permission has been given to Indian diplomatic officers and consular officers to
conduct marriages of persons (out of which should be an Indian Citizen) in a foreign land. It also
provides that no such marriage which is prohibited in that particular country cannot be conducted. As
per the Joint Committee of parliament, this rule was enacted to remove any problem of incoherency
with International laws and comity of nations. Doing so serves another purpose, as desired by the
parliament, marriages under this Act are more internationally acceptable.