Renvoi (L24) Flashcards
What is the issue of renvoi?
The meaning of ‘law’.
Only domestic law: ‘law’ in a ‘narrow’ sense.
OR
Domestic law AND international private law: ‘law’ in a ‘wide’ sense (law ‘in the round’).
If we’re applying a foreign choice of law, is that that system’s domestic law, or their international private law rules too?
What is renvoi remission?
E.g. if Scots law says French law applies and the French law says Scots law applies.
What is renvoi transmission?
E.g. if Scots law says French law applies and the French law says German law applies.
What was the renvoi issue in Annesley [1926]?
One of the limits on the forum’s broadmindedness is that a UK court will only ever apply its own conception of domicile.
The rules of domicile are always pars fori.
English domicile of origin, lived in France for over 50 years.
Made a will in France, fell out with her children. Wanted to benefit one child and exclude the other.
Content of English and French law differed on whether she could do that.
English law said that she died domiciled in France. By French law, she did not acquire French domicile.
English court said it would only ever apply its own conception of domicile.
What is the internal law concept approach to renvoi?
A refusal to admit the renvoi concept.
E.g Rome I, art 20:
Exclusion of renvoi.
‘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, unless provided otherwise in this Regulation..’
Renvoi reasoning makes choice of law more complex and therefore more expensive and difficult.
Renvoi must end at some point. This theory cuts it off and makes it more straightforward.
What is the single renvoi approach?
Interpretation of the ‘lex causae’ as including that law’s international private law rules.
How does L’Affaire Forgo [1888] demonstrate the single renvoi approach?
Occurred in a French court before the unification of Germany.
Forgo died as a national of Bavaria. Domiciled in France. He was illegitimate, and died intestate.
Given the circumstances of his death, his estate would’ve fallen by French law to the French state. By Bavarian law, it would have gone to his surviving siblings etc.
French court said the applicable law was that of his nationality. Applied Bavarian law in the round. Bavarian choice of law rule was to apply the French law of the domicile.
French court accepted the renvoi back.
French exchequer claimed his estate.
How does Collier v Rivaz [1841] demonstrate the single renvoi approach?
The propositus was a British national, died domiciled in Belgium. Left a will and six codicils. Administration of the estate to take place in England.
Doubt as to the formal validity of six of the codicils. Four did not comply with the formal validity rules of Belgian law.
English choice of law rule on formal validity was strict. Will had to conform with the law of the domicile.
Council said that if they apply Belgian law in the round, Belgian law would apply formal validity according to the law of the nationality.
Held that UK nationality just meant English law.
By English law, the doubtful codicils were formally valid.
English judge decided the case as he would if he was in a Belgian court. Upheld the validity.
What is the double renvoi / foreign court theory?
English law solution, not adopted by any other system.
English forum takes as its starting point the foreign law. Foreign law refers back to the British nationality/English law. English law returns to the foreign law using English law in the round. Will the foreign law accept the renvoi? If it does, the foreign law is applied in the domestic sense. If it doesn’t, all the English court can do is apply English law in the domestic sense.
Can be hard to determine whether the foreign law accepts the renvoi.
How do cases demonstrate the double renvoi theory?
Annesley [1926].
Accepted the renvoi.
In re Ross [1930].
Didn’t accept the renvoi.
Re Duke of Wellington (Wynn-Parry J) [1947].
Confusion as to whether the foreign court accepted the renvoi.
Ultimately determined it didn’t, but not clear if this was just due to frustration.
In re Fuld [1968].
Re Haji-Ioannou (Dec’d) [2009].
What are the cons of renvoi reasoning?
Delay; complexity; uncertainty; cost of litigation.
Subordination of the forum’s determination of the appropriate applicable law to that of the lex causae.
Difficulty of ascertaining foreign conflict rules and attitude to renvoi.
Difficulty of ascertaining the national law of an individual whose personal law is based on domicile.
What are the pros of renvoi reasoning?
Full effect to the forum’s chosen lex causae.
Increased chance of a positive result (marriage; wills) (the ‘in favorem’ argument) [though not in Fuld [1968]; and Taczanowska [1957]].
Increased chance of uniformity of result regardless of forum?
Which case shows that renvoi can apply to status: legitimation by subsequent marriage?
Askew.
Which case shows that renvoi can apply to the form of marriage?
Taczanowska.
Which cases show that renvoi can apply to the title to immoveable property?
Ross.
Duke of Wellington.
