THE RENVOI THEORY, IT’S DEVELOPMENT, APPLICATION TO CONTRACTUAL

CHOICE OF LAW AND THE WAY FORWARD

--VARUN VAISH (2008-74)

Electronic copy
Electronic copy available
available at:
at:https://ssrn.com/abstract=2355917
http://ssrn.com/abstract=2355917
 The Renvoi Theory

It is understood that while every state includes one internal body of law that is applicable
to domestic situations, it also includes another body that is applicable to scenarios involving a
foreign element.1 This latter body of rules is commonly referred to as the conflict of law rules.
These rules often require a particular forum to apply the law of a foreign state which may be the
place of situs of some property, place of domicile for a litigating party, or the place where a
contract is signed.2 Where reference is made to the law of the foreign state, does that reference
pertain to the local law of the foreign state or the conflict of law rules of that state will determine
whether the court making the reference accepts the doctrine of Renvoi.3 If reference is made to
the conflict of law rules of the foreign state, then the forum making the reference accepts the
doctrine.4 The conflict of law rules for the foreign country may refer the matter back to be dealt
with the law of the forum or to the law of a third nation, and such transfers are referred to as
remission and transmission respectively.5

The first ever mention of the term "Renvoi" was made in a note in the 1898 issue of Law
Quarterly review.6 It states that at the time, judges of courts in France, Italy and Germany as well
as academicians of the time were deeply concerned about the question of Renvoi or Die Riick-
und-Weiterverweisung as it was called in German.7 This term, however, was still unheard of in
England. The note understands the phenomenon of Renvoi in terms of a 'remission' by a superior
court to an inferior court to be further dealt with.8 The note leaves the question of the validity of
Renvoi and its adoption by the English system unanswered. The note is important in that it is the
first ever mention of the term Renvoi in English legal writing. The Renvoi question first surfaced
in a French Court in 1841 but did not gain importance until later in 1878. Even then, it failed to
capture the attention of English Courts.

It is believed that each state has the vested right to deal with the legal consequences that
arise of facts occurring in that state and in the same vein courts cannot enforce no legal
obligations that are created elsewhere.9 When the court of the forum ‘refers’ to the law of a
foreign state, it means that the court will enforce the same right as the foreign court would have
enforced faced with a similar factual situation. The theory of vested rights however requires that

1
E. G. L., Renvoi in the Conflict of Laws, The Yale Law Journal, Vol. 29, No. 2 (Dec., 1919), pp. 214-218
2
Ernest G. Lorenzen,The "Renvoi" Theory and the Application of Foreign Law, Columbia Law Review, Vol. 10, No.
3 (Mar., 1910), pp. 190-207.
3
Ibid.
4
Lorenzen, The Renvoi Doctrine in the Conflict of Laws-Meaning of "The Law of a Country" (1917) 27 YALE
LAW JOURNAL, 509, 511.
5
HIBBERT, INTERNATIONAL PRIVATE LAW (1917) Introduction, xxix
6
Note, 14 Law Quarterly Review 231.
7
Ibid.
8
Note, 14 Law Quarterly Review 231.
9
The Logical and Legal Bases of the Conflict of Laws (1924) 33 YALE LAW JOURNAL, 457
Electronic copy
Electronic copy available
available at:
at:https://ssrn.com/abstract=2355917
http://ssrn.com/abstract=2355917
the court of the forum will not create new rights based on the factual scenario occurring in the
foreign state and will only enforce the rights already created by the law of the foreign state.10

The concept of Renvoi first came into prominence in the Fargo Case adjudicated by the
French Court of Cessation, wherein it was accepted. 11 Though the countries of France, Spain,
Portugal and Belgium have accepted Renvoi, such is not the case in Italy and Switzerland. 12
Westlake and Dicey are of the opinion that England may be considered as a Renvoi State as the
concept is well established in English Common Law.13 It is argued however that it would be
impossible to decide any case applying the doctrine of Renvoi as the court of the forum cannot
decide the case as a court of the foreign state.14

Taking Renvoi to its logical conclusion there would never be a closure to the back and
forth referencing between two countries that recognize Renvoi. For E.g. if the English conflict of
law rule requires that the law of the domicile i.e French law be applied and upon making a
reference the French conflict of law rules requires the Law of Nationality i.e. English law be
applied, thereby refereeing the case back to England, creating an infinite loop.15 In order to
remedy this Westlake proposes the disestement theory wherein the court of the forum must
necessarily decide the matter if the courts of both countries refuse to accept jurisdiction of the
matter (limited Renvoi).16 However courts that have applied the theory of Renvoi have understood
a referral back to the country of original reference as a reference only to the internal law of the
country and not to its conflict of law rules, therefore putting an end to repeated circular
referencing.17

There is a conscious effort to resolve conflicts without resorting to Renvoi. This is the
stance that the United States has taken. Across the globe the application of the doctrine of Renvoi
has been limited to the instruments of testamentary succession and their validity as well as
intestate succession of property both movable and immovable, as well as question of validity of
marriage and divorce. As regards the applicability of Revoi for international contractual
obligations it has been expressly excluded by the European Union by way of the Article 15 EC
Convention on the Law Applicable to Contractual Obligations (Rome 1980).18 A significant
number of commonwealth countries have dismissed with the application of Renvoi. 19 A large
10
Lorenzen, Territoriality, Public Policy and the Conflict of Laws (1924) 33 YALE LAW JOURNAL, 736.
11
In re Forgo, 8 Clunet, 61 (1881);
12
Lorenzen, The Renvoi Theory and the Application of Foreign Law (1910) 10 COL. L. REV. 190, 194; Schreiber,
Doctrine of Renvoi in Anglo- American Law (1917) 31 HARv. L. REV. 523;
13
DICEY, CONFLICT OF LAWS (3d ed. 1922) 771, 776.
10 WESTLAKE, PRIVATE INTERNATIONAL LAW (7th ed. 1925) 25, 42.
14
Supra n. 12.
15
Anon, The Renvoi Theory Rejected. Exceptions, The Yale Law Journal, Vol. 36, No. 1 (Nov., 1926), pp. 114-119.
16
WESTLAKE, PRIVATE INTERNATIONAL LAW (7th ed. 1925) 25, 42.
17
Anon, Renvoi Doctrine, Michigan Law Review, Vol. 29, No. 5 (Mar., 1931), pp. 627-628.
18
Rome Convention, 1980 available at- http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?
uri=CELEX:41998A0126(02):EN:HTML
19
Amin Rasheed Shipping Corporation v. Kuwait Insurance Co [1984] 1 A.C. 50 (H.L.)
Electronic copy available at: https://ssrn.com/abstract=2355917
number of countries also preclude its application in tort cases for example in the United Kingdom
section 9(5) Private International Law (Miscellaneous Provisions) Act 1995.

Since 11 January 2009, Regulation (EC) 864/2007 (Rome II-regulation) on the law
applicable to non-contractual obligations has been in application, determining the application of
choice of law rules in a uniform manner throughout the European Union. Article 24 of this
regulation provides: “The application of the law of any country specified by this Regulation
means the application of the rules of law in force in that country other than its rules of private
international law.” thereby removing any chance for the application of the doctrine of Renvoi the
all throughout the EU in tort cases.20

Development of Renvoi through English Case Law

The Renvoi question came up for consideration before an English Court for the first time in the
case of In Re Johnson21 in the early 1900s. The facts of the case are as follows:

Mary Johnson, a British subject domiciled in Malta, left Malta in 1832 and subsequently lived in
Baden where she died intestate in 1894. She left movables in Baden and in England. The Master
of Wills in England made a certificate, finding, inter alia that she was domiciled at the time of
making her will and at the time of her death, in Baden and by the law of Baden, the legal
succession to the property not disposed of by will was governed by the law of the country of
which she was a subject at the time of her death. The question before the Court therefore was,
according to what law are the rights of the persons claiming the indisposed of personal estate of
the testatrix to be determined?

It was held by Farwell J that her movables must be distributed according to Maltese law.
The Law of Baden did not recognise domicile at all. In the words of Farwell J –

"when I turn to the laws of Baden at the death of the testatrix, the municipal law of which,
according to our law, the testatrix had attracted to herself, I find that the Courts of Baden
paid no heed to domicile—she was foreign to them in birth, and had done in her lifetime
no act which their Courts recognised as entitling her to be regarded as a person the
succession to whose movables should be regulated by their law. According to their law the
succession to her movables was regulated by the law of the country of which she was a
subject at her death"

20
Rome Regulation-II, Article 24 available at- http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?
uri=OJ:L:2007:199:0040:0049:EN:PDF.
21
[1903] I Ch 821
Electronic copy available at: https://ssrn.com/abstract=2355917
 Under English law however, no person is without domicile. A domicile of origin attaches
at the time of birth which can be displaced by a domicile of choice after majority. In case of any
uncertainty as to the domicile of choice, then by the doctrine of revival, the domicile of origin
reattaches to the person. Given this rule and given the rejection of Baden Courts of the domicile
rule, Farwell J concluded that the domicile of choice i.e. that of Baden has been displaced by the
domicile of choice i.e. Malta. Therefore, the judge concluded that the movables must be
distributed according to the law of Malta.

The Renvoi element emerges from the fact that the Court regarded the law of Baden as
including the PIL rules else, the Court having ascertained that the testatrix was domiciled in
Baden could have just applied the internal law of Baden. However, this according to Brown22 was
not in keeping with the judicial trend. This is to say that the concept of Renvoi is in a way implicit
in Common Law. This is why the judge did not consider remitting the matter to Baden since he
knew that according to their PIL rules the matter would not be decided according to their internal
law but would be sent back to England. However, this it has been contended is not a judgment in
favour of Renvoi but mere obiter.23

According to Brown, an acceptance or rejection of Renvoi by common law depends on

how you define the term.24 The reason for a dodgy judicial trend on Renvoi under English law
may be attributed to this. There is no clarity on how the doctrine is defined. As such it has never
been consciously applied by any judge in any case in the 19th Century. Brown maintains that the
Privy Council case of Bremer v. Freeman25 upheld by the Chancery Division case of Hamilton v.
Dallas26 is an affirmation of Renvoi if Renvoi is understood as understanding the law of a given
state to include its PIL rules.

In this case a will disposing of English movables was made in the English form by a
person domiciled in the English sense in France but in the French sense in England. It was held
that the domicile of the deceased was French and therefore the validity of the will should be tested
under French law and since the will is not in the form prescribed by French law it is invalid. In
reaching this decision the Court perused generously and diligently relevant materials of French
law to ascertain that there was nothing in the law to prevent acquisition of domicile.

22
Jethro Brown, In Re Johnson, 25 Law Quarterly Review 145 (1909).
23
Jethro Brown, In Re Johnson, 25 Law Quarterly Review 145 (1909).
24
Ibid at 148.
25
(1857) 10 Moo PCC 306
26
(1857) I Ch D 257
Electronic copy available at: https://ssrn.com/abstract=2355917
Therefore, in the words of Brown:

“Bremer v. Freeman, so far from being an authority for the rejection of Renvoi is on the
contrary an authority for its acceptance. If the Court in that case had not considered itself
bound in referring to French law, to refer to that law in the wider sense, why should it
have entered into an elaborate discussion as to the French law of domicile?”

In another case Collier v. Rivaz27 was one of the earliest cases that was decided in 1841. A
British subject was domiciled in Belgium at the time of his death. He had executed 7 testamentary
instruments, one will and 6 codicils. the will add two of the codicils had been executed in
accordance with the formalities required by the Belgian internal law. The remaining 4 codicils
though formally valid according to the Wills Act were not made in accordance with the forms
prescribed by Belgian internal law. According to Belgian law the testator had never acquired a
domicile in that country since he had not obtained the necessary authorisation from the
government. the question was whether the instruments could be admitted to probate in England.
Hence, the deceased had in effect executed testamentary instruments that were valid in essence
but not in form in Belgium. the judge Sir Herbert Jenner decided to sit as a Belgian judge and
admitted the codicils and the will on the ground that since according to Belgium law the deceased
was not domiciled there, they would apply PIL rules under which the formal validity of the
instruments would be governed by English law and given that they were in accordance with the
Wills Act, they were upheld as valid.

The application of Belgian PIL rules by an English Court led to a major confusion as to
what is meant by the term "Belgian law"? If it is taken to include the PIL rules then it leads to
dangerous consequences when it is applied as a general rule in other cases. Cheshire therefore
greatly criticised this decision for this very reason. This case however does not raise the Renvoi
question. In fact most of these earlier never raised the question of Renvoi or even discussed the
doctrine as such. This as will be seen later has been the principal ground for criticism by the
objectors to Renvoi - that the ground of authority that is sought to be relied upon for inducting
Renvoi into common law is uncertain.

27
(1841) 2 Curt 855
Electronic copy available at: https://ssrn.com/abstract=2355917
 Renvoi and Contractual choice of law

It is imperative that at this juncture we explore the relationship between the Doctrine of
Renvoi and the party autonomy envisaged in the contractual choice of law. In order for us to do
so, we look closely at a decision of the United States Court of Appeals for the Second Circuit on
the question of conflict of laws in the case of Siegelman v. Cunard White Star Ltd.28 This case
garners its significance from the fact that for the first time the unsettled and controversial issues
pertaining to Renvoi and the choice of law to govern questions arising under an international
contract, were discussed.

One Mr. Elias Siegelman, (as the administrator of his wife’s estate) bought a suit a against
Cunard Ocean liner company for the injuries sustained by his wife during the course of a voyage
from New York to Cherbour on the Cunard Ocean Liner R.M.S. Queen Elizabeth. Clause 20 of
the Terms and Conditions of the ticket purchased by Mrs. Siegelman stipulated that "All
questions arising on this contract ticket shall be decided according to English law with reference
to which this contract is made." No doubt even a tertiary analysis will reveal that this clause
represented a clear and express intention of the parties to the contact to have their contractual
relationship be governed by the law of a specific country, and such was the understanding of two
out of the three court of appeal judges (Clark and Harlan). Judge Harlan saw no harm in letting
the parties’ intention control the case at hand.29

However in his dissenting opinion Judge Frank questioned whether the reference to the
“English Law” in Clause 20 of the terms and conditions meant the “whole law” of England,
which comprises its conflict of law rules as well, or did it mean a reference to merely the
‘domestic’ or ‘Municipal’ laws of England. In other words were the issues to be decided as per
the law of England or could they decided as an English court could adjudicate upon them, making
use of the laws of another country altogether.30 Judge Harlan was of the clear understanding that
the reference was to the “Domestic law of England” as the reason for the inclusion of such a
stipulation in the contract by Cunard was to ensure that no where the ticket was issued or in which
country a suit against Cunard is bought, the result would be the same. This would not be the case
if ‘whole law’ of England including the conflict of law rules were applied.31 This understanding at
first glance seems entirely proper however Judge Frank was compelled to dissent, primary taking
into consideration the case of Mason v. Rose32 (a prior case of the same court) and the English
Privy Council decision of Vita Food Products Inc. v. Unus Shipping Co. Ltd.33 After taking into
28
221 F. 2d 189 (2d Cir. 1955)
29
221 F.2d 189, 195.
30
221 F.2d 189, 194
31
221 F.2d 189, 194.
32
176 F.2d 486 (2d Cir. 1949).
33
[1939] A.C. 277 (P.C.).
Electronic copy available at: https://ssrn.com/abstract=2355917
account the above cases Judge Frank was convinced that the reference the ‘English Law’ in the
contract referred to the ‘Whole’ Law including the, Conflict of law Rules of the country. Mason
v. Rose case was distinguished as in that case, even thought English conflict of law rules were
applied as the governing law of a international contract, it was not a case wherein an express
choice of law was given and hence was not decided on the basis of the ‘intention of the parties’
rule but on a “Lex Contractus” rule (Where the contract was signed). The question at hand was
evidence by the opinion of the two Judges i.e. Harlan and Frank, wherein Justice Harlan believed
that the doctrine of Renvoi would not be applicable to this branch of conflict of laws namely
‘international contract’ whereas Judge Frank thought it appropriate.34

It is imperative that we provide certain background on the Vita Foods Decision which is
regarded by many as a significant contribution to the English Law on Renvoi. The Vita foods
decision was received in appeal by the Judicial Committee of the Privy Council from the Supreme
Court of Nova Scotia.35The Vita Foods case dealt with a Bill of Lading contracted in
Newfoundland which categorically stated that "This contract shall be governed by English law."
The court expressly sated that the contractual intention of the parties was to be given effect to,
with Judge John Wright stating that “There is, in their Lordships' opinion no ground for refusing
to give effect to the express selection of English law as the proper law in the bills of lading.
Hence English rules relating to the conflict of laws must be applied to determine how the bills of
lading are affected by the failure to comply with S.3 of the (Newfoundland) Act.” However the
efficacy of the Vita Foods decision in clarifying the position of the law must be questioned, in so
far as after the decision the Judges of the commonwealth have mostly paid no heed to the Renvoi
Doctrine in considering and applying the “intention” of the parties’ theory of the proper law.36
This thinking was giving fuel to by the opinion of academic writers as well namely Professor
Morris and Cheshire who thought of the Judgement as “unsound” and not calculated to effectuate
the intension of the parties.37 The general understanding of academic circles was that if parties
subject their agreement to English law, the desire for their problems to be resolved by the
application of English municipal law and not be referred to some other country.38

The introduction of Renvoi into this field it was felt turned the rule of the “intention of the
Parties’ into a mere formality. 39 It was also believed that this judgement was a serious lapse on the
part of Judge Wright who introduced the concept Renvoi into the felid of international contracts

34
"Commercial Security and Uniformity through Express Stipulations in Contracts as to
Governing Law," 62 Harv. L. Rev. 647 (1949) (221 F.2d 189, 194, 195).
35
[1938] 2 D.L.R 372. [1939] A.C. 277 (P.C.)
36
Main article; Some examples include, Mahler v Midland Bank [1950] A.C. 24; Zivnostenska
Banka National Corpn. v Frankman [1950] A.C. 57, etc.
37
"The Proper Law of a Contract in the Conflict of Laws," 56 L.Q. Rev. 320, 333, 335 (1940).
38
3 Modern L. Rev. 61, 66 (1939).
39
40 Colum. L. Rev. 518 523 (1940).
Electronic copy available at: https://ssrn.com/abstract=2355917
where an express choice of law clause was existent without discussing any of the implications and
difficulties that would arise upon its introduction.40

Hence when the time comes for the application of the of the Vita case whose dictum is clear and
express, it must be understood that it was ignored by the courts and event the academia to whom
it was immediately relevant over the next few years. The same was the understanding in the
Siegelman Case. This is also one particular reason why Renvoi has been expressly excluded from
the Rome Convention, 1980 via Article 15.

Conclusion
With the advent of globalization an increasing number of goods and passenger now
traverse international boundaries, many a times through territories which are- res nullies or
subject to no particular legal sovereign authority. In the absence of choice of law clauses, this
movement creates legal issues of a diverse character, which begs the question- what law is
applicable to these disputes? These scenarios ask a more generic question as well- Can the
concept of Renvoi be harmonized or has it lived its course?

Though the issues of private international law have attempted to be harmonized through
international treaties and conventions this section will deal with a possible way forward. Though
it is the accepted position of law that courts derive their authority form their sovereign and in
considering the law of foreign states the court of State A must not sit as the court of state B, this
narrow position is antithetic to the principles of fairness and justice, family relations and the
growth of international commerce.41 Hence as Beale describes it courts have found an ingenious
middle ground wherein the give effect to the foreign law not as binding upon the local court but
merely as rule of law enforcing the inherent right behind such rule by finding similar justice
within local law.42

The basic problem of Renvoi which is applicable even to situation of conflict arising out
of transnational movement was masterfully stated by Schreiber who said "When the conflict-of-
laws rule of the forum refers a jural matter to a foreign law for decision, is the reference to the
corresponding rule of the conflict of laws of that foreign law, or is the reference to the purely
internal rules of law of the foreign system; i.e., to the totality of the foreign law, minus its
conflict-of laws rules?" 43

40
"Bills of Lading, Proper Law and Renvoi," 18 Can. B. Rev. 77, 84 (1940).
41
Arnold W. Knauth, “Renvoi and Other Conflicts Problems in Transportation Law”, Columbia Law Review, Vol.
49, No. 1 (Jan., 1949), pp. 1-20
42
1 BEALE, CONFLICTO F LAWS § 8.1 (1935).
43
Schreiber,T he Doctrineo f the Renvoi in Anglo-AmericanL aw, 31 HARV.L . REV. 523, 525 (1918).
Electronic copy available at: https://ssrn.com/abstract=2355917
 It was stated by Beale that all questions of title to land are decided in accordance with the
law of the State where the land is, including obviously the Conflict of Laws rules of that state,
even though he openly Rejected the notion of Renvoi as being logically inconsistent,.44 However
Beale remarks that as regards to movable property they are transferred or are inherited as per the
law of the situs at the moment.
However this does not explain how cargo while still on high seas is sold by the mere delivery of
documents situated in different places. Movables in general change hands daily by the delivery of
documents, by the law of the place where the documents are; this is usually the case with CIF
contracts.

One of the primary criticisms of Renvoi is that it is said to reason in a circle.45

Nevertheless certain countries proposed to make use, while negotiating for an international
convention on the matter, of the circular nature of Renvoi and see this as a merit. It is proposed by
the Netherland that “If a second or third Renvoi leads back to a law already applied, then among
the laws so forming a circle, the (national) law of the person applies, without further Renvoi, in
preference to that of the location of the asset, and the law of the domicile in preference to the
national law.” Hence the ranking of the preference of law from the highest to the lesser would be
firstly the law of domicile, secondly the law of nationality and thirdly the law of the location of
the property.46 Thereafter depending upon the facts of each case people can disembark at different
points of the circular Renvoi wheel. Hence all cases of marriage and divorce can have one rule
which will govern what law will apply to them for e.g. the rule of 3 months domicile or in the
case of ships and vessels such as the law of the state of registration etc. A similar rule can apply
for commercial contracts such as bills of lading, contracts as well as for torts etc. 47 Most cases
can be slotted into ten to twelve different rules such as namely, the law of the forum, the domicil,
the residence, the nationality, the place where the formal act of contract occurred (loci actus), the
place where a contract was formed (loci contractus), the place where the subject-matter is (rei
sitae), the place of performance of a contract (loci solutionis),the place where the wrong was done
(loci delicti), the place where a ceremony was performed (loci celebrationis) and it wouldn’t be
difficult through international conventions to ensure that all cases of a certain type are governed
by a certain rule and thus bring international uniformity and harmony to the concept of Renvoi.48

44
1 BEALE, CONFLICT OF LAWS §§ 8.1, 8.2 (1935).
45
"The doctrine of Renvoi necessitates reference and counter-reference between the law of the forum and foreign
law. From this there has arisen an assumption universally accepted by writers on the conflict of laws that such
reference and counter-reference lead inescapably to some form of logical fallacy, whether a vicious circle, or an
endless series
of cross-declinations of jurisdiction, or an infinite regress of definitions, or an indefinite postponement of choice of
the law by which the subject matter of the litigation is to be governed”; Cowan, Renvoi Does Not Involve a Logical
Fallacy, 87 U. OF PA. L. REV. 34 (1938)
46
Arnold W. Knauth, “Renvoi and Other Conflicts Problems in Transportation Law”, Columbia Law Review, Vol.
49, No. 1 (Jan., 1949), pp. 1-20
47
Ibid.
48
Id.
Electronic copy available at: https://ssrn.com/abstract=2355917