1.

DOCTRINE OF RENVOI

The doctrine of RENVOI is derived from the French word ‘RENVOYER’ which
means to “refer back”.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.

TYPES OF RENVOI

1. SINGLE RENVOI

Countries like spain,italy,luxembourg use a single renvoi system.In this type of

system in order to settle a case which includes a foreign elements only two countries
will be considered.

2. DOUBLE RENVOI

Countries like Spain, England, and France follow double renvoi. In this two or more
countries and their laws are taken into consideration.

No Renvoi

Some countries like Denmark, Greece and the US do not accept double renvoi.

In French “Renvoi” means “send back” or “return unopened”. When any conflict
occurs, which is considered to have law of another state referred to as Private
International Law, The Doctrine of Renvoi is a legal doctrine which is thereafter
applied in the court. It is a significant and elementary subject of Private International
Law or Conflict of Law. This is applied in foreign issues of succession planning and
administering estates. The Doctrine of Renvoi is the process by which a court adopts
rules of a foreign jurisdiction with any conflict of law. It is a method used to take care
of cases existing in foreign elements. The idea used behind the doctrine is that it
prevents forum shopping and the same law is used for cases regardless of what the
case actually is. It attempts to achieve the end.

Application of Renvoi
The scope of Doctrine of Renvoi is very limited because of its unpredictability. It is
applied in validity of wills and intestate succession i.e. Transfer of property and
retrospective legitimacy of marriage of natural parents i.e. validity of divorce decree.
However, there are also states which apply these two issues in family law.

CASE LAWS

In re Ross

In the above-mentioned case, the testatrix was British citizen, she was domiciled in
Italy and had written a will leaving the land in Italy and the movables both in Italy
and England. The will was valid in England but not in Italy as she had not left half of
her property to her son. The court applied the law regarding where the property is
situated. The movables in Italy because the will writer’s nationality was Italian. So,
the judge applied the Italian law with respect to the immovable property situated in
Italy because Italy does not accept the Renvoi based issue in accordance with English
law.

Forgo case

In this case a Bavarian national died in France, he lived there from the age of 5 year.
According to Bavarian law the property was passed to the relatives, but in French law
it will be passed to the government and not the family members. The French court
held that it would entertain the enquiry according to Bavarian law. The case was ruled
for French state and the reference was the Bavarian guidelines.

THEORIES OF RENVOI

1. The mutual disclaimer/disclaiment theory

2. The theory of renvoi proper or doctrine of single renvoi

3. The foreign court theory/ doctrine of total renvoi

ISSUES TO WHICH RENVOI MAY APPLY

1. TITLE TO FOREIGN LAND

2. TITLE TO FOREIGN MOVABLES
3. STATUS ie family issues
4. VALIDITY OF BEQUESTS
5. INTERNATIONAL CONVENTION
6. TRANSMISSION
 3. MEANING OF DOMICILE AND TYPES OF DOMICILE

Domicile is a legal term used to refer to the permanent or legal address (place or
country) of an individual. In business, domicile is the place or country in which a
business is registered or has been incorporated.Domicile which is a private
international law or conflict of laws concept identifies a person, in cases having a
foreign element, with a territory subject to a single system of law, which is regarded
as his personal law. Domicile in India is an essential requirement for acquiring Indian
citizenship. The term ‘Domicile’ is not defined in the constitution. Ordinarily, it
means a permanent home or place where a person resides with the intention of
remaining there for an indefinite period . Domicile is not the same thing as residence.
Residence implies a purely physical fact, the fact of just being and living in a
particular place. But domicile is not only residence, it is residence coupled with
intention to live indefinitely in the place.

Importance of Domicile:
· Domicile acts as a connecting factor for various legal systems.

· Domicile can be used as a jurisdictional link which is a pre-requisite for assumption

of jurisdiction by the forum or for recognition and assumption of a foreign court's
jurisdiction.

· Domicile determines an individual's right to vote, his right to hold public office, his
entitlement to support in respect of various needs such as ill-health or unemployment
and his liability to various forms of taxation.

· There is no person without a domicile because it is necessary to connect a person

with some legal system to regulate his legal relationships.

The concept of domicile in common law is derived from the Roman law. The term
domicilium is derived from domum colere, to foster or inhabit the home.

TYPES OF DOMICILE

Basically there are three types of domicile, as organized under common law and
statutes.  They are:

 domicile of origin,
 domicile of choice or necessary domicile.; and
 domicile by operation of law.

Domicile by birth is the domicile that is acquired by a child for the reason of its birth. 
Thus it is attributed to everyone at birth.  For example, a child born in a marital
relationship will take the domicile of its father, and a child born outside wedlock will
take the domicile of its mother.
 However, any person without a legal disability can have a domicile of choice. 
Domicile by choice is the domicile that is presumed or inferred by law.  The law will
presume a domicile of choice if there is a change of residence coupled with an
intention of making the change permanent.

Domicile by operation of law is the one that is imposed by law.  The following are the
examples of domicile by operation of law:

 When the parents of a child changes their domicile, the domicile of the child
will also get changed by the operation of law; and
 When a woman is married, she acquires the domicile of her husband. 
However, a married woman can acquire her own domicile, independent of her
husband

Domicile may also be classified as domestic domicile, foreign domicile, national

domicile, state domicile, county domicile, or municipal domicile.

1. DOMICILE OF ORIGIN

Domicile of origin means the home of an individual’s parents.  It does not mean the
place where the child was born when the parents were on a visit or journey.  It is not a
place where a child happens to be born.  Thus, domicile of origin is different from an
accidental place of birth.

Domicile of origin comes into existence as soon as the child becomes an independent
person by birth.  If the child is born in a lawful wedlock then the child takes the
father’s domicile.  But if the child is illegitimate that is born out of a lawful wedlock,
the child takes the mother’s domicile.  It is because the minors are legally incapable of
satisfying the requirements for creating a domicile by choice, their domicile is
determined by that of their parents.

The domicile of origin remains with an individual until another has been acquired.  In
order to change the domicile of origin, there must be an absolute removal from their
present residence coupled with an intention to reside in another place.  A mere
intention to remove is not sufficient.  Such intention to remove must be brought into
effect.  On moving to a new place s/he acquires a domicile of choice and loses
domicile of origin.  But if such person returns with an intention to reside in his/her
prior residence then s/he will get back his/her domicile of origin.

To determine an illegitimate child’s domicile, the illegitimate child is first legitimized

by a statute.  Here the statute legitimizes the unlawful wedlock for giving recognition
and acknowledgment to the child’s domicile.  For this purpose, the parent whose
relation is required to be made legitimate must be domiciled in a state that permits
such an act.  If a father is a resident of a state that permits legitimization by
recognition, the fact that the mother and child are domiciled elsewhere will not affect
the act of legitimating.  Such a legitimization will be recognized in every state. 
However, if the domicile of the father at the time of the act of recognition is not of the
state that implements the act which confers a legitimate status to the child, then the
 father’s subsequent removal to the latter state will not confer a legitimate status to the
child.

2. DOMICILE OF CHOICE

A domicile of choice is a self acquired domicile.  It is a domicile which a person

chooses to replace his/her former domicile, which may be either a domicile of origin
or domicile of choice.  Only a legally competent person can choose his/her domicile.

According to common law every independent person can acquire a domicile of choice
by satisfying the following conditions.  They are:

 s/he must have a freedom of choice

 s/he must make an intention to change their current residence;
 s/he must change the residence to some other state; and
 s/he must have an intention to make the new residence his/her permanent
residence.

However a person can abandons his/her domicile of choice in a country by satisfying

the following two conditions:

 s/he must cease to reside in the country; and

 s/he must have an intention to cease their residence permanently.

On abandoning a domicile of choice a person acquires either a new domicile of choice

or his /her domicile of origin will revert back to the former domicile.  The rule that the
domicile of origin will come back to a person who ceases his/her domicile of choice
has been criticized by some courts.  However, no person can reside in a state without
a domicile, and no person can hold more than one domicile at a time.

In practice, it is very difficult to prove the intention of permanent residence, because it

is assumed that every individual retains affection to his/her previous state and plans to
return one day.  A statement of intention made by the person himself/herself will not
be sufficient to attribute a domicile of choice.  The intention must be ratified by a
conduct to establish a new domicile.

However, if there is a combination of physical presence, legal capacity, and the

required attitude of mind then a change of domicile will have a legal impact.

3. DOMICILE BY OPERATION OF LAW

A domicile by operation of law is a domicile that the law vests in a person without
taking into consideration a person’s residence or intention to change residence.  Here
an individual cannot exercise his/her freedom of right.  A domicile by operation of
law is the domicile that is imposed by law.

Mainly there are two classes of persons who acquire domicile by operation of law. 
They are:

 those persons who are under control of another; and

 those on whom, domicile of another is given by law.

The following persons fall under the category of those who are under the control of
another.  They are:

 a wife;
 a minor ,and
 a lunatic.

The wife takes the domicile of her husband until she voluntarily changes domicile. 
Similarly a widow takes and retains the domicile of her husband until she marries for
the second time or unless she voluntarily changes it.  On a second marriage a widow
will take the domicile of her second husband.  A minor and a lunatic will take the
domicile of his/her father, when his/her father is alive.  On the death of the father the
minor and a lunatic will take the domicile of the mother.  The domicile of a minor and
a lunatic can be changed at the direction of the parents.  For changing the domicile of
the minor or lunatic the parents must give their express or implied consent.

On the other hand, officers and prisoners fall under the category of those who are
given a domicile of another by law.  Here the law tags a domicile to the persons who
falls under this category.  For example, public officers who are assigned with public
duty will have to reside in other places for the discharge of their duty.  In such cases,
public officers can retain their original domicile which they have in their respective
state.  This privilege is extended to the President of the United States, the Secretaries,
Ambassadors, officers, soldiers, and marines, serving for the United States.  A
prisoner will not acquire a new domicile if the prison is in his/her home state.

TORT IN PRIVATE INTERNATIONAL LAW

Every Country has its own laws which are made to regulate the conduct of
the people who live in such countries. For e.g., in India, the laws which
govern Indian citizens are Indian laws and thus the laws of other countries
like that of England or China will not be binding on Indians and such laws
can only be referred to when there is a question of law on which the
Indian law is silent.

Usually, whenever a tort is committed, the plaintiff files a suit in the

Courts for claiming damages or other remedies for his loss against the
defendant but a question arises, what will happen if a tort is committed by
a person in a foreign country? Will, such a person be bound by the law of
the country where such tort is committed or will the law of his country
apply to him? These kinds of torts are known as foreign torts.

Illustration

A who is an Indian visits Bhutan and there he commits a tort against B

who is a citizen of Bhutan. Here, the tort committed by A is a foreign tort.
In India, the law of torts is not codified as a result there is no statute or
an act of the legislature which prescribes the unlawful acts and the
punishments for the same. Thus, the Indian Courts have to apply the
principles of tort law on the basis of the English cases from which the law
of torts in India finds its origin. Also, due to the lack of awareness among
the Indian people about their various rights and the long amount of time
which is taken in the courts for deciding a case, In India, principles of law
of torts have not developed as much as the English law of torts. This is
also another reason why English cases and laws are referred to by the
Indian Courts in deciding the cases of torts in India. Thus, the concept of
foreign torts in India is also on the same footing as that of the English law
of torts.

Foreign Tort
A foreign tort can be defined as “When a tort which is committed abroad by a person
and therefore the cause of action for such tort arises abroad.

Thus, foreign torts are committed in a foreign nation. There are 2 kinds of foreign
torts which are as follows:

1. Tort of Realty

Whenever any tort is committed against a property which is situated in a foreign

country, the tort is called tort of reality. In such torts, the affected property is an
immovable property which means that such property is fixed at one place and it
cannot be moved from its position.

Under the English law of torts, no action can arise in a case where any tort relating to
immovable property is committed and thus in such cases, the suit filed by the plaintiff
is rejected by the courts.

Illustration: A is resident of England who visits India on a business trip and while
staying in India, he commits a tort of trespass on B’s House. Here even though a tort
has been committed but since it has been committed against an immovable property
which is situated in a foreign country it is a tort of reality and such a case against A
will not be maintainable.

In the case of Britten South Africa Co. v. Compania de Mecambique (1953) AC

602, the defendant was a resident of England and he had trespassed into the mine of
the plaintiff which was situated in South Africa as a result, the plaintiff brought a suit
against him in the Court for trespass. It was held that, since the tort was committed
against an immovable property in a foreign land, the suit of the plaintiff cannot be
successful and therefore the defendant was not held guilty.
2. Personal Torts

In foreign torts, whenever there is an unlawful act committed against a person or

against his movable property, such tort is known as personal torts. Unlike tort of
reality, in cases of personal torts, the person who suffers a loss has the right to file the
suit against the tortfeasor and such person’s suit is not rejected by the Courts. Thus for
movable property and the body, personal torts are applied and remedy is available to
the injured person.

Illustration: A (a resident of Spain) is on a trip to Switzerland, and got his phone

stolen by B. Here, since the phone is a movable property, such a tort will fall in the
category of personal tort under foreign torts and the suit filed by A will be accepted
by the court and B will be held liable.

So, personal torts are separate from the tort of reality because while in the tort of
reality, there is no right to file a claim against the wrongdoer, under personal tort a
person can file a suit for the injury or loss caused by a tortfeasor.

But all the suits under Personal torts cannot be accepted by the Courts and therefore
only on the fulfilment of certain conditions, a suit for a personal tort which has been
committed abroad can be accepted by the court.

The conditions are as follows:

 The wrongful act is actionable in the country where such wrong has been
committed.

The first condition which has to be fulfilled in a case of personal tort to be successful

is that the tortious act which is committed by the defendant against the body or the
property of the plaintiff is actionable in the country in which this act has been
committed. For e.g., If a tort is committed against A’s body and he files a claim for
damages. The Court will first see whether a suit can be filed in the court of the
country where such an act was committed or not. If such an act is not actionable then
the suit filed by A will be rejected.

 The act for which a suit is filed should be actionable if it had been committed
in the country where the case was filed.

This is the second condition which must be fulfilled for a successful claim in cases of

personal tort. If the country in which the plaintiff wants to enforce his rights does not
provide such right or it does not consider that act to be unlawful, then in such a case if
the Court allows the claim of the plaintiff it will amount to enforcing the laws of other
nation and that situation cannot be allowed. For e.g., If trespass to movable property is
an offence in country X but that is not an offence in country Y. A who is from Y
wants to file a case in a court of Y for trespass to movable property. The court will not
allow such a claim because it is not an offence in Y and thus there is no actionable
claim in Y for such acts.

In the maritime case of The Halley (1868) 2 P.C. 193, an English streamer was
travelling in Belgian water with a compulsory pilot which was required by law. Their
ship ran down a Norwegian barge and as a result, the suit was brought against him.
Under the Belgian law, it was an actionable claim but under British law, the defence
of compulsory pilotage was open to him. Here, the English law was applied by the
Court and it was held that this suit was not maintainable in the English Court.

When a tort is committed in a foreign country, such a tort is known as a

foreign tort. In such torts the wrongful act against the immovable
property cannot be filed because they are not maintainable in Courts, they
are also called torts of reality. In cases of tort affecting body or movable
property of a person, the suit is maintainable provided that such an act is
unlawful in the country in which it has been committed and such an act
should be actionable in the country in which such a suit has been filed.
Thus, when these conditions are fulfilled, a plaintiff can successfully claim
damages from the defendant for the tort committed abroad.