Part II Preliminary Topics, 5 Renvoi
Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara WalkerEdited By: Paul Torremans, James J. Fawcett
- Choice of law clauses — Stays of English proceedings — Limitations on jurisdiction
(p. 57) 5 Renvoi1
Once it is decided that a court has jurisdiction, how the issue before it is to be characterised in terms of private international law and what choice of law rules are applicable, it might be thought that the judge’s task was reaching its conclusion. Nothing remains for him to do but apply the chosen law. If this is English law there is no doubt that what he is required to do is to give effect to English internal law. Thus, where a person dies intestate domiciled in England leaving movables here the rules of distribution contained in the Administration of Estates Act 1925 must be applied. There can be no question of paying any further regard to the private international law of England. The function of that department of the law is purely selective and its selection of English law as the applicable law must perforce refer to English internal law, ie to the rules applicable to a purely domestic situation having no foreign complexion.
If, however, the applicable law is that of a foreign country the situation may be more complex. The difficulty is to determine what is meant by the applicable “law”. If, for example, the English rule for the choice of law refers to the law of Italy, what meaning must be attributed to “the law of Italy”? The difficulty is not obvious at first sight, but it can be demonstrated by a simple illustration: X, a British subject, dies intestate, domiciled in Italy, and an English court is required to decide how his movables in England are to be distributed. It is clearly desirable that the mode of distribution should be the same everywhere, in the sense that no matter what References(p. 58) national court deals with the matter there ought to be universal agreement as to what particular legal system shall indicate the actual beneficiaries. The fact, however, that there are different systems of private international law militates against this ideal solution. Thus, according to the English rules for the choice of law, the question of intestate succession to movables is governed by Italian law as being the law of X’s domicile at the time of death, but according to the Italian rules it must be referred to the law of England as being the law of his nationality. In the above example, for instance, an English court has no option but to refer the question of succession to Italian law; while an Italian judge if faced with this issue is under an equal necessity to apply the national law. The English judge, of course, is exclusively governed by his own system of private international law, and must therefore decide that X’s goods shall be distributed according to Italian law. Despite this obvious conclusion, however, we are still confronted with the question—what is meant by Italian law? Does it mean Italian internal law, ie the rules enacted by the Italian Code analogous to section 46 of the Administration of Estates Act 1925 which regulate the distribution of an intestate’s property? Or does it mean the whole of Italian law, including in particular the rules of private international law as recognised in Italy? If the latter is the correct meaning, a further difficulty is caused by the difference between the English and Italian rules of the choice of law; for on referring to Italian private international law we find ourselves referred back to English law. This being so, the question is whether we are to ignore the divergent Italian rule or to accept the reference back that it makes. If we accept the reference back, are we to stop finally at that point and to distribute X’s goods according to the Administration of Estates Act?
When a case is complicated in this fashion, owing to a difference in the private international law of two countries, there are three possible solutions.2 These are as follows:
The judge who is faced with this issue and who is referred by English private international law to, say, the law of Italy, may
(i) take “the law of Italy” to mean the internal/substantive law of Italy; or
(ii) decide the case on the assumption that the doctrine of single renvoi is recognised by English law; or
(iii) take “the law of Italy” to mean the law which an Italian judge would administer if he were seised of the matter, ie the doctrine of double renvoi.
These possible courses will now be discussed to show that in some types of case the third solution, whether rightly or wrongly, has been frequently adopted by the judges.
(a) Apply internal law only
The first solution, and the one which is in general correct and desirable, is to read the expression “the law of the country” as meaning only the internal rules of that law. The following would seem to represent the sensible view:
If England chooses the law of a person’s domicile as the best one to apply to a certain relationship, does she mean the ordinary law for ordinary people, his friends and neighbours, in that domicile? Or does she include that country’s rules for the choice of law? Common sense could answer that the last alternative is absurd and otiose: a rule for the choice of an References(p. 59) appropriate law has already been applied, namely our own. To proceed to adopt a foreign rule is to decide the same question twice over.3
This would seem to be in accord with the intention of the propositus. If, for instance, a man voluntarily abandons England and acquires a domicile in Italy where he permanently resides until his death many years later, the natural inference is that he willingly submits himself to the internal law of that country. This seems also to be the obvious answer in those cases, such as contract,4 where the parties are allowed expressly to choose the law to govern their relationship. Few businessmen would voluntarily choose the doctrine of renvoi. This approach has been definitely adopted in at least two early English decisions, one by a court of first instance,5 the other by the Privy Council.6 It is, and always has been, unconsciously adopted in a multitude of decisions.7
(b) Doctrine of single renvoi
The second solution is to apply the doctrine of renvoi, in the form of single renvoi. Such doctrine is to this effect: if a judge in country A is referred by his own rule of the choice of a law to the “law” of country B, but the rule of the choice of law in B refers such a case to the “law” of A, then the judge in A must apply the internal law of his own country. The operation of this famous but regrettable doctrine, which demands that a reference to the law of a country shall mean a reference to the whole of its law, including its private international law, is best explained by the example already given: X, a British subject, dies intestate, domiciled in Italy, and an English court is required to decide how his movables in England are to be distributed.
The English court is directed by its own private international law to refer this question of distribution to Italian law as being the law of the deceased’s domicile. When, however, it examines the provision relating to the choice of the applicable law contained in the Italian Code, it finds that in the case of succession to movables the Code prefers the law of the deceased’s nationality to that of his domicile, and that if an Italian court had been hearing this matter in the first instance it would have resorted to the law of England. Thus, the English court finds itself referred back to English law as being the law of X’s nationality. There is a renvoi or remission to English law.
If the court accepts this remission and distributes the property according to the Administration of Estates Act 1925, it is true to say that the doctrine of renvoi is part of English law. Italian law has been allowed, not to give a direct solution to the problem under consideration, but to indicate what legal system shall furnish the final solution. Where the court that is hearing the matter accepts the remission and applies its own municipal law it recognises the doctrine in its simplest form. Renvoi, properly so called, is best exemplified by the well-known decision of the French Cour de Cassation in Forgo’s case.8
Forgo, a Bavarian national, died intestate in France, where he had lived since the age of five. The question before the French court was whether his movables in France should be distributed according to the internal law of France or of Bavaria. Collateral relatives were entitled to succeed by Bavarian law, but under French law the property passed to the French government to the exclusion of collaterals. French private international law referred the matter of succession to Bavarian law, but Bavarian private international law referred it to French law. References(p. 60) The Cour de Cassation in France accepted the remission and applied the succession provisions of French law.
Where, as in Forgo’s case, there are only two legal systems concerned—where the reference is merely from country A to country B and back from B to A—the doctrine of renvoi appears in its simplest form. It can best be described as remission. Internationally it is known as first degree renvoi.9 A case may occur, however, where the reference is from A to B, and from B to C. Suppose, for instance, that an Italian testator dies domiciled in France leaving movables in England, English law will refer the question of succession to movables to the law of his domicile, French law. If, however, France were to refer the same question to the law of his nationality, Italian law, this would be a case of reference from B to C, best described as transmission. Internationally this is known as second degree renvoi.10
This particular doctrine of renvoi, whether in the form of remission or transmission, which is now generally called partial or single renvoi,11 is not part of English law.12 That is to say, if English law refers a matter to the law of the domicile and if the latter remits the question to English law, the judge does not automatically accept the remission and apply English internal law. He does not act as the French court did in Forgo’s case. It seems unnecessary, therefore, to elaborate the objections to which the doctrine is open.13
(c) Doctrine of total renvoi
(i) The doctrine stated
The third possible solution is to adopt what may be called the foreign court theory or the “doctrine of double renvoi” or total renvoi,14 or “the English doctrine of renvoi”. This demands that an English judge, who is referred by his own law to the legal system of a foreign country, must apply whatever law a court in that foreign country would apply if it were hearing the case. Let us assume, for example, a question arises concerning the testamentary dispositions of a British subject who dies domiciled and habitually resident in Belgium, leaving assets solely in England (and having moved back to England on a trial basis, whilst holding on to his rented house in Belgium three months before his death). A Belgian judge dealing with this matter would be referred by his rules of private international law to English law,15 but he would then find that the case was remitted to him by English law. Evidence must therefore be adduced in the English proceedings to show what the Belgian judge would in fact do. He might accept the remission and apply his own internal law, and this would be his course if renvoi in the Forgo sense (single renvoi) is recognised in Belgium, or he might reject the remission and apply English internal law. Whatever he would do inexorably determines the References(p. 61) decision of the English judge.16 If this third solution is adopted, it is vital to realise that the decision given by the English judge will depend on whether the doctrine of single renvoi is recognised by the particular foreign law to which he is referred. The doctrine, for instance, is repudiated in Italy but recognised in France. Therefore, if the issue in England is the intrinsic validity of a will made by a British subject domiciled in Italy, the judge, if he is to make an imaginary judicial journey to Italy, will reason as follows: an Italian judge would refer the matter to English law, as being the national law of the propositus. English law remits the question to Italian law as being the law of his domicile. Italian law does not accept this remission, since it repudiates the single renvoi doctrine. Therefore an Italian judge would apply English internal law.17 A French domicile, however, would produce the opposite result, since a court sitting in France would accept the remission from England and would ultimately apply French internal law.18
(ii) Objections to the doctrine
This third solution does not lack support in England, North America and Australia.19 Certain English decisions, which will be discussed later, may be cited in its favour; throughout his life Dicey maintained its truth; the editor of his fifth edition was equally strong in advocating its merits;20 and an American jurist sums up his conclusions in these words: “When a court is referred by its own conflicts rule to a foreign law, it should, as a matter of course, look to the entire foreign law as the foreign court would administer it.”21
Before estimating the value of the English decisions, therefore, it is appropriate to consider a few of the objections that may be raised to this total renvoi doctrine. The burden of the following pages—that it is objectionable in principle—is based on unconvincing authority and cannot be said to represent the general rule of English law. It is submitted that, subject to certain well-defined exceptions, an English judge, when referred by a rule for the choice of law to the legal system of a foreign country, is not required to consider whether the renvoi doctrine is recognised by the private international law of either country, but must administer the internal law of the legal system to which he has been referred.
The following objections, among others, may be directed against the doctrine:22
(a) The total renvoi doctrine does not necessarily ensure uniform decisions
The laudable objective of those who favour the doctrine either of single or of total renvoi is to ensure that the same decision shall be given on the same disputed facts, irrespective of the country in which the case is heard. In truth, however, the doctrine of renvoi, in whatever form it is expressed, will produce this uniformity only if it is recognised in one of the countries concerned and rejected in the other—not if it is recognised in both. If, for example, the law of the domicile, to which the English judge is referred, ordains that the case is to be decided exactly as the national (English) court would decide it, what is the judge to do on finding that by English law his decision is to be exactly what it would be in the country of the domicile?23 Where is a halt to be called to the process of passing the ball from one judge (p. 62) to another? There is no apparent way in which this inextricable circle can be broken—or in which this international game of tennis can be terminated.
Uniformity will, indeed, be attained if the law of the domicile repudiates the doctrine of total renvoi, ie if, instead of seeking guidance from a foreign judge, it categorically provides that the national (English) law shall govern the matter, for in this case English internal law will apply and harmony will prevail. It is true that the total renvoi doctrine is apparently unrecognised in countries outside the Commonwealth, but nonetheless it is difficult “to approve a doctrine which is workable only if the other country rejects it”.24 The fact is, of course, that uniformity of decisions is unattainable25 on any consistent principle with regard to matters that are determined in some countries by the law of the nationality, in others by the law of the domicile.
A second obstacle to uniformity of decisions is that the foreign court doctrine does not require, in fact does not allow, the English judge to don the mantle of his foreign colleague without any reservations. Matters that are classified as procedural in England must be submitted to English internal law, even though the foreign judge might have regarded them as substantive.26 This may well lead to a discrepancy of result. Moreover, the application of a rule of foreign law will sometimes be excluded on grounds of public policy or because it is considered to be a penal, revenue or other public law matter.27
(b) The total renvoi doctrine signifies the virtual capitulation of the English rules for choice of law
Stripped of its verbiage, the doctrine involves nothing less than a substitution of the foreign for the English choice of law rules. In the case, for instance, of the British subject who dies intestate domiciled in Italy, the English rule selects the law of Italy as the governing law, but the equivalent Italian rule selects the law of England. When, therefore, the English judge defers to the decision that an Italian judge would have given, he applies the internal law of England and thus shows a preference for the Italian selective rule. The English rule is jettisoned, since it does not meet with the approval of the law-maker in Italy. This, indeed, is the apotheosis of comity.28 Moreover, a rule for the choice of the applicable law is essentially selective in nature,29 and that it should have no other effect than to select another and contradictory rule of selection savours of incompatibility and paradox. Furthermore, the application of the law selected by the foreign country’s choice of law rules may be unacceptable in public policy terms.30
One acute critic, however, finds nothing strange in this surrender to a foreign rule for the choice of law.31 He denies that there is any logical reason why an English rule of this nature should not be taken to indicate the private international law of a foreign country rather than its internal law. To regard a reference to the law of the domicile as a reference to the internal law is, he says, merely to beg the question. This argument, it is submitted, ignores (p. 63) both the nature and genesis of a rule for the choice of the applicable law. The truth is that such a rule is based on substantial grounds of national policy. It represents what appears to the enacting authority to be right and proper, having regard to the sociological and practical considerations involved. The English principle, for instance, that an intestate’s movables shall be distributed according to the law of his last domicile is founded on the reasoning that rights of succession should depend on the law of the country where the deceased established his permanent home. Having voluntarily become an inhabitant of the country, it is the view of English law that in this matter he should be on the same footing as other inhabitants. Moreover, the natural inference is that he submits himself to the law which binds his friends and neighbours. This would seem to be his presumed intention. Thus, if the reference to the law of his domicile is regarded as a reference to whatever internal system the private international law of the domicile may choose, then not only is the deliberate policy of English law reversed, but the probable intention of the propositus is ignored. Indeed, his expectations may be flouted. He may, for instance, have refrained from making a will, having been content with the local rules governing intestacy, the substance of which it will have been a simple matter for him to ascertain. A quite different set of rules, however, may operate if the private international law of his domicile is to have effect.
The doctrine obliges the English judge to ascertain as a fact the precise decision that the foreign court would give. This confronts him with two difficulties. First, he must ascertain what view prevails in the foreign country with regard to the doctrine of single renvoi. Secondly, where the foreign rule for the choice of law selects the national law of the propositus, the judge must ascertain what is meant by national law.
As we have already seen, the chosen law that emerges from an application of the doctrine depends, inter alia, on whether the doctrine of single renvoi is recognised by the law of the domicile.32 If the court of the domicile would accept the remission made to it by English law, it would determine the case according to its own internal law; otherwise it would apply the internal law of England. This dependence of the rights of the parties on the attitude of the law of the domicile to the renvoi doctrine is a cause of acute embarrassment. There are few matters on which it is more difficult to obtain reliable information, not least because of the undue influence of expert witnesses over the process. Alternatively, the English judge may be confronted with a somewhat arduous and invidious task, as witness the following remarks of Wynn-Parry J:
It would be difficult to imagine a harder task than that which faces me, namely, of expounding for the first time either to this country or to Spain the relevant law of Spain as it would be expounded by the Supreme Court of Spain, which up to the present time has made no pronouncement on the subject, and having to base that exposition on evidence which satisfies me that on this subject there exists a profound cleavage of legal opinion in Spain and two conflicting decisions of courts of inferior jurisdiction.33
The second difficulty that may arise is to ascribe a definite meaning to the expression “national law”. When the private international law rules of the country in which the English judge is presumed to sit select the nationality of a person as the connecting factor, it becomes necessary to correlate the national law with some precise system of internal law by which the issue before the court may be determined. This is a simple matter when the person is a national of (p. 64) some country, such as Sweden, which has a unitary system of territorial law.34 There is a single body of internal law applicable throughout the territory known as Sweden. The position is far different where the country of nationality comprises several systems of territorial law, as is true for example of the United Kingdom and the USA. What, for instance, is the national law of a British subject? For an English court, the question is really pointless, because the law that governs a British subject in personal matters varies according to the territory of the foreign country in which he is domiciled. It is one system in England, another in Scotland, and so on. The case of Re O’Keefe35 will serve to illustrate both the nature of the difficulty and the speciousness of the total renvoi doctrine. The facts were these:
The question before the English court was the way in which the movables of X, a spinster who died intestate, were to be distributed. X’s father was born in 1835 in Ireland, but at the age of 22 he went to India, and except for various stays in Europe lived there throughout his life and died in Calcutta in 1885. X was born in India in 1860; from 1867 to 1890 she lived in various places in England, France and Spain; but in 1890 she settled down in Naples and resided there until her death 47 years later in 1937. About the year 1878 she had made a short tour in Ireland with her father. She never lost her British nationality, but it was held that she had acquired a domicile in Italy.
The law selected by English private international law to govern the question of distribution was, therefore, the law of her domicile. Had an Italian judge been hearing the case, however, he would have been referred to her national law by the Italian Civil Code. He would have rejected any remission made to him by the national law, since the single renvoi doctrine had not been adopted in Italy. The Civil Code used the general expression “national law” and failed to define what this means when the country of nationality contains more than one legal system. Which system of internal law, then, out of those having some relation to X, would be regarded by an Italian court as applicable? The issue raised in the case was whether it was the law of England, Ireland or India. Which of these systems would be selected by a court in Italy? The expert witnesses agreed that it would be the law of the country to which X “belonged” at the time of her death. She certainly did not “belong”, whatever that may mean, to England in the sense of attracting to herself English internal law, for she had spent no appreciable time in the country. She might perhaps, by reason of her birth in Calcutta, be regarded as belonging to India, though she had not been there for seventy years. The reasonable man might even be excused for thinking that she most properly belonged to Italy, the country where she had continuously spent the last forty-seven years of her life.36 Crossman J, however, would have none of these. He reverted to X’s domicile of origin, and held that she belonged to Ireland because that was the country where her father was domiciled at the time of her birth. In the result, therefore, the succession to her property was governed by the law of the country which she had never entered except during one short visit some sixty years before her death; which was not even a separate political unit until sixty-two years after her birth; of whose succession laws she was no doubt profoundly and happily ignorant; and under the law of which it was impossible in the circumstances for her to claim citizenship. The convolutions by which such a remarkable result is reached are interesting. First, the judge is referred by the English rule to the law of the domicile, which in the instant case means the law of the domicile of choice; then he bows to the superior wisdom of a foreign legislator and allows the law References(p. 65) of the domicile to be supplanted by the law of the nationality; then, upon discovering that the law of the nationality is meaningless, he throws himself back on the domicile of origin; and thus determines the rights of the parties by a legal system which is neither the national law nor the law of the domicile as envisaged by the English rule for choice of law.37 Comment is surely superfluous.
(iii) Analysis of decisions supporting the doctrine
Although a number of cases are often cited in support of the total renvoi doctrine, they are far from satisfactory. The first of these is Collier v Rivaz,38 where the facts were as follows:
A British subject, who according to English law was domiciled in Belgium at the time of his death, had executed seven testamentary instruments, a will and six codicils. The will and two of the codicils had been executed in accordance with the formalities required by Belgian internal law. The remaining four codicils, though formally valid according to the Wills Act 1837, were not made in the form required by Belgian internal law. According to the law of Belgium 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.
Sir Herbert Jenner, after propounding the theory that he must sit as a Belgian judge, admitted the will and two codicils to probate because they satisfied the formalities of the internal law of the country in which the testator was domiciled in the English sense. He extended the same indulgence to the remaining codicils on the ground that, since the testator had not acquired a domicile in Belgium in the Belgian sense, a judge in Brussels would apply Belgian private international law, under which the formal validity of the instruments would be tested by English internal law.
This decision is open to many criticisms.39 It is obvious that, when a choice of law rule selects a particular legal system as the one to govern a given question, it is necessary to decide whether this means the internal law or the private international law of the selected system. It cannot mean both, for the private international law rules may indicate some other legal system, the internal law of which differs from the internal law of the selected system. If the question in Collier v Rivaz had been, not the formal, but the essential, validity of the testamentary instruments, and if, for instance, some of them had been lawful by English internal law but unlawful by Belgian internal law, while others had been lawful in Belgium but unlawful in England, it would have been impossible to uphold them in their totality. Sir Herbert Jenner, however, had it both ways. He held that the formal validity of a will cannot be denied if it satisfies either the internal law or the private international law of the selected legal system. There is much to be said for this benevolent rule in the one case of formal validity, since it is obviously desirable that the intention of a testator, clearly expressed and not intrinsically objectionable, should be respected if reasonably possible.40 What is impossible is that the rule should be allowed a wider general operation.41
(p. 66) In contrast to Collier v Rivaz, Re Annesley42 was concerned with the essential validity of a will.
An Englishwoman was domiciled at the time of her death in France according to the principles of English law, but was domiciled in England in the eyes of French law. This was because she had never obtained the authorisation of the French government which, before 1927, was necessary for the acquisition of domicile. Her testamentary dispositions were valid by English internal law, but invalid by French internal law, since she had failed to leave two-thirds of her property to her children.
Russell J held that the validity of the dispositions must be determined by French law. His actual decision, therefore, was in accordance with the view that a reference to the law of a given country is a reference to its internal law,43 but he did not reach his conclusion in this simple fashion. He preferred the total renvoi theory. Although the judge’s reasoning is not altogether clear, it seems that he ultimately arrived at the application of French internal law by the following route:
English private international law refers the matter to French law as being the law of the domicile.
A French judge would be referred by his own rules to English law. He would, however, find himself referred back by English private international law to French law.
Single renvoi is recognised in France.
Therefore, a French court would accept the remission, and in the result would apply French internal law.
It is to be noted, however, that, had the judge not thought himself bound by previous authorities, he would have preferred to have based his decision on an alternative and simpler ground. This, the direct antithesis of the approach that we have just considered, was that the natural meaning of the expression “the law of a country” is the internal law of the country in question. “When we say that French law applies to the administration of the personal estate of an Englishman who dies domiciled in France, we mean that French municipal law which France applies in the case of Frenchmen.”44
Another case concerned with the essential validity of a will is Re Ross.45
The testatrix, a British subject, who was domiciled in Italy, both in the English and the Italian sense, disposed of her property by a will which excluded her son from the list of beneficiaries. This exclusion was justifiable by English internal law, but contrary to Italian internal law which required that one-half of the property should go to the son as his legitima portio. She left land in Italy and movable property both in England and Italy.
Luxmoore J held with regard to the movables that in accordance with the English rule of the choice of law the claim of the son to his legitima portio must be determined by Italian law as being the law of the testatrix’s domicile. He then put the question: what is meant by the law of the domicile? Does it refer merely to the municipal law of the domicile or does it include its rules of private international law?46
References(p. 67) In the result the judge applied English internal law and disallowed the claim of the son. This was the conclusion which an Italian judge would have reached. He would have referred the matter to the law of the nationality and would have rejected the remission made to him by English law. As regards the land, the English rule for the choice of law referred the judge to Italian law as being the law of the situs. The expert evidence showed that an Italian court would again turn to the law of the nationality and would adopt the rule of English internal law applicable to land situated in England and belonging to an English testator. It was held once more, therefore, that the claim of the son failed. In this way Mrs Ross was allowed to evade one of the cardinal rules of the legal system, the protection of which she had enjoyed for the last fifty-one years of her life.
The next case, Re Askew,47 raised an issue of legitimacy.
By an English marriage settlement made on the marriage of X, a British subject domiciled in England, to his first wife, Y, it was provided that X, if he married again, might revoke in part the settled trusts and make a new appointment to the children of such subsequent marriage. Some time before 1911, X, who had long been separated from Y, acquired a German domicile. In 1911, having obtained a divorce from a competent German court, he married Z, in Berlin. Some time before the divorce a daughter had been born to X and Z in Switzerland. In 1913 X exercised his power of revocation and made an appointment in favour of his daughter.
The question before the English court concerned the validity of this appointment. A short answer to this question, and one that would have involved no reference to private international law, was that the daughter of Z was in no sense a child of the “subsequent marriage”, for the only marriage subsisting at the time of her birth was that between X and Y. She might be legitimate, but she could not possibly be the child of a non-existing marriage.48 This fact, however, was not brought to the notice of Maugham J, who insisted that the validity of the appointment depended on whether the daughter was legitimate. She could not claim legitimacy under the Legitimacy Act 192649 since at the time of her birth her father was married to someone other than her mother.50 By English private international law, however, her legitimacy depended on whether German law, being that of her father’s domicile both at the time of her birth and also at the time of his marriage to Z, recognised legitimation by subsequent marriage. In such a case, German private international law referred the matter to the law of the father’s nationality. Moreover, the doctrine of single renvoi was generally accepted in Germany. If, therefore, a German court were required to pronounce on the legitimacy of Z’s daughter, it would first refer to English law, and then, on finding a remission made by English law to the law of the domicile, would accept this and apply German internal law. In other words, if the English reference to the law of the domicile was a reference to the private international law rules of the domicile, the daughter would be legitimate. Maugham J felt that both on principle and on the authorities he was obliged to consider the private international law of Germany. He therefore decided in favour of the legitimacy of the daughter and the validity of the appointment.
The Duke of Wellington, a British subject domiciled in England, left two wills, one dealing with his Spanish, the other with his English, property. By the former he left his land in Spain to the person who would succeed both to his English dukedom and to his Spanish dukedom of Ciudad Rodrigo.52 He died a bachelor, with the result that by the internal law of England his English dukedom passed to his uncle, while by the internal law of Spain his sister succeeded to the Spanish dukedom. Therefore, the Spanish land remained undisposed of, since there was no one person qualified to take both dukedoms.
The problem, therefore, was to identify the person to whom the Spanish land passed, and this depended on whether the solution was to be found in the internal law of Spain or of England. By the former, the testator was entitled to devise only half of his land, the other half passing as on intestacy;53 by English internal law, the land would pass to the next Duke of Wellington under the residuary gift contained in the English will.
Wynn-Parry J decided in favour of English internal law for the following reasons: the English choice of law rule referred him in the first instance to Spanish law, which, having regard to such cases as Re Ross,54 included the private international law of Spain; the Spanish code provided that testate and intestate succession was to be determined by the national law of the deceased, whatever be the country in which the property was situated; therefore, the question was whether a Spanish court, having thus been referred to the national (English) law, would accept the remission made by that law to the law of the situs. In short, was the doctrine of single renvoi recognised in Spain? After considering the conflicting evidence of the expert witnesses and the conflicting decisions of two Spanish courts of first instance, the judge reached the conclusion that a court in Spain would not accept the remission made by the national law. Therefore, the Duke of Wellington was entitled to the land under the English will.
A further case to be considered is Re Fuld’s Estate (No 3)55 where the facts were as follows:
The testator, a German by origin, had acquired Canadian nationality when resident in Ontario, but he died domiciled in Germany. His will and its second codicil were executed in England and were considered formally valid in England.56 The three other codicils to his will were executed in Germany and, thus, according to English private international law, German law, as the law of his domicile, governed their formal validity. The last two of these codicils were invalid as to form under German domestic law, but valid under English and Ontario domestic law.
What had to be determined was whether reference to German law was to German internal law or the whole of German law, including its rules of private international law. This involved a difficult problem of the interpretation of the German Civil Code which allowed reference in such cases to either the law governing validity or that of the place of execution. Scarman J construed this latter reference as a reference to the internal law of Germany. However, the reference under German law to the law governing validity was to the law of Ontario as the law of the nationality. This was considered to be a reference to the whole of Ontario law, References(p. 69) including its rules of private international law. These led to a reference back to German law, as the law of the domicile, and this reference back was accepted by German law under the Civil Code. German internal law was applied and, consequently, the codicils were invalid.
The nature and application of the renvoi doctrine was the focus of an important recent Western Australian case, Neilson v Overseas Projects Corporation of Victoria Ltd,57 the facts of which were as follows:
Mrs Neilson, an Australian citizen, domiciled in Western Australia, moved with her husband to China, he having accepted a position with the defendant Victoria corporation, which required him to work there. Subsequently, Mrs Neilson was injured at the couple’s place of residence in China, and so sued her husband’s employer, in contract and in tort, in Western Australia.
The point in issue was whether application of the Chinese law of the place where the tort was committed should include the Chinese choice of law rules, which, in the circumstances of the case, conferred a discretion on the forum to apply Australian substantive law, which had a more generous limitation period than domestic Chinese law. By majority,58 the High Court of Australia held that where the law of the place where the tort was committed rule requires an Australian court to apply foreign law, the court must, ordinarily at least, apply foreign choice of law rules, and whichever law those rules yield. While three judges were of the view that, in resolving the appeal, it was “unnecessary to postulate a single theory of renvoi to govern all proceedings in Australian courts requiring reference to foreign substantive law”,59 it is worthy of note that total renvoi was accepted by a majority of five judges.60
This review of the principal decisions61 discloses that the total renvoi doctrine is not of general application.62 Its scope appears to be limited to certain matters concerning either status or the disposition of property on death. In countless cases dealing with such matters as torts,63References(p. 70) insurance, sale of movables, gifts inter vivos or mortis causa, mortgages, negotiable instruments, partnerships, dissolution of foreign companies and so on, the English courts, when referred to “the law” of a foreign country, have never had the slightest hesitation in applying the internal law of that country. One of the clearest rejections of any renvoi doctrine is to be found in the field of contract, it being thought that no sane businessman or his lawyers would choose the application of renvoi. Not only was the rejection made clear at common law,64 but this position has been confirmed by Article 15 of the (1980) Rome Convention on the law applicable to contractual obligations to which effect is given by the Contracts (Applicable Law) Act 1990.65 The general principle is reiterated in the Rome I Regulation in Article 20. The clear terms of Article 15 of the Convention and Article 20 of the Regulation are that the application of the law of any country specified by this Convention/Regulation means the application of the rules of law in force in that country other than its rules of private international law.66
There are, however, as we have seen, decisions which do apply renvoi in certain limited areas. These cases perhaps show that the judges, in considering whether the reference may not be to the private international law of the chosen country, have taken the view that “the various categories of cases merit individual consideration in the light of expediency”67 and that the entire problem is not to be decided on a priori reasoning. One writer, who has done much to illuminate the subject, suggests that the renvoi doctrine cannot be rejected in toto, since it has proved to be a useful and justifiable expedient for the solution of at least certain special questions.68 Renvoi has recently been allocated a supporting role in bringing about the goals of the choice of law rule involved in the case by the High Court of Australia, in case it is necessary to depart from the rigid application of the choice of law rule and the applicable law it determines to achieve the goals of the choice of law rule.69 The conclusion, in fact, is that generally a reference made by an English rule for choice of law to a foreign legal system is to the internal law, not to the private international law, of the chosen system, but that this general principle is subject to a number of exceptions.
As regards unjust enrichment, in Barros Mattos Junior v MacDaniels Ltd70 counsel for the claimant argued that the applicable law should be construed as being that law, including its rules of private international law. Lawrence Collins J, while judging the argument to be premature, nevertheless opined that, although there is no authority directly in point, “the claim to the application of renvoi in restitution claims is weak”.71
References(p. 71) (b) Issues to which renvoi may apply
Where the essential validity of a will72 or intestate succession to movables73 is determinable by the law of a foreign country, the view that would be taken of the matter by the foreign judge, if he were hearing the case, must be adopted. Also, in cases in which the testator died before 1964 and in cases in which, although he died after 1963, the formal validity of his will is considered under the old common law rule of reference to the law of the domicile, a grant of probate will not be denied on the ground of formal invalidity if the will is formally valid according to the private international law, though not according to the internal law, of the governing legal system.74
Where a question arises of the right to foreign immovables, as in Re Ross,75 the English court will apply the private international law rules of the country where the immovables are situated, if they would be applied by a court of the situs hearing the same question.76 This may be justified on the ground that it promotes the security of title.77
If the English choice of law rule refers a disputed title to movables to the law of their situs at the time when the alleged title was said to have been acquired, it is probable that the court will apply the internal system of law that a court of the situs would apply in the particular circumstances of the case.78
The one area of family law where there is clear authority for the application of renvoi is that of the recognition, at common law, of legitimation by subsequent marriage.79 There is also some authority for the application of the doctrine of renvoi to matrimonial property issues80 and to both formal81 and essential82 validity of marriage.83 What is not wholly clear is whether References(p. 72) renvoi allows the validity of a marriage to be upheld if it is valid either under the internal law of the country to which English choice of law rules refer or under that country’s private international law rules—a rule of alternative reference.84
So too in relation to children, the Peréz-Vera Report on the 1980 Hague Convention on the Civil Aspects of International Child Abduction indicates that the applicable law in terms of the Convention includes its rules of private international law.85
1 The literature on the subject is immense; among the contributions in English see: Bate, Notes on the Doctrine of Renvoi; Mendelssohn-Bartholdy, Renvoi in Modern English Law; Rabel, Vol I, 75 et seq; Lorenzen (1910) 10 Col LR 190, 327; Abbot (1908) 24 LQR 133; Falconbridge, pp 137–263; Lorenzen (1917) 27 Yale LJ 509; Schreiber (1917) 31 Harv LR 523; Griswold (1938) 51 Harv LR 1165; Morris (1937) 18 BYBIL 32; Cowan (1938) 87 U of Pa LR 34; Griswold, ibid 257; Falconbridge (1953) 6 Vanderbilt Law Review 708; Inglis (1958) 74 LQR 493; Von Mehren, XXth Century Comparative and Conflicts Law, 360; de Nova (1966) II Hague Recueil 443, 478–577; Kahn-Freund (1974) III Hague Recueil 147, 392–7, 431–437; Sauveplanne, International Encyclopaedia of Comparative Law, Vol III, Chapter 6 (1990); Briggs (1998) 47 ICLQ 877; Levontin, Choice of Law and Conflict of Laws, Chapter 3; Dicey, Morris and Collins, Chapter 4; Crawford and Carruthers, Chapter 5; Morris, paras 20-016–20-033; Briggs, Private International Law in English Courts (2014) paras 3.64–3.79; Anton, 4.40–70; J von Hein, ‘Renvoi in European Private International Law’, in S Leible, General Principles of European Private International Law (2016) Ch 12; and Harder (2011) 60 ICLQ 659. See also A Davì, ‘Le renvoi en droit international privé contemporain’, (2010) 352 Hague Receuil 9, and E Agostini, ‘Le mécanisme du renvoi’, (2013) 3 Rev Crit DIP 545.
10 Or Weiterverweisung. See ibid.
12 Re Askew  2 Ch 259 at 268: “An English court can never have anything to do with it [renvoi], except so far as foreign experts may expound the doctrine as being part of the lex domicilii”, per Maugham J.
14 Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan  UKSC 46, paras 123–125. See also Dicey, Morris and Collins, para 4-010; Falconbridge, p 170, and cf the US case McGee v Arkel Int’l, LLC, 671 F 3d 539, 543 (5th Cir 2012).
15 The Belgian judge would have jurisdiction the basis of article 4 of the succession Regulation (Regulation (EU) No 650/2012 of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession,  OJ 201/107) and would be referred to English law by article 21(2) of the Regulation (the escape clause). The UK does not participate in the Regulation.
16 The doctrine is ambiguous in the sense that the grounds on which the English judge must arrive at the Belgian decision are far from clear. Must he reason on the basis of the actual circumstances of the case, especially the presence of the assets in England? Or, must he reason on a false assumption, namely, that the assets are in Belgium? There is judicial authority for both views. See Dobrin (1934) 15 BYBIL 36, 37–45.
23 Morris (n 1), 37; and see Schreiber (1917) 31 Harv LR 523.
26 Infra, Chapter 6.
27 Infra, Chapter 8.
29 Ibid, 533.
30 In such circumstances a Canadian court has applied the internal law of the country chosen by the forum’s choice of law rules, ie ignored the doctrine of renvoi on public policy grounds: Vladi v Vladi (1987) 39 DLR (4th) 563.
34 For a stimulating exposé of the present difficulty, see Falconbridge, pp 202–16. See also Morris (1940) 56 LQR 144. For judicial comment on the onerous nature of the doctrine, see Barros Mattos Junior v MacDaniels Ltd  IL Pr 45, per Lawrence Collins J, at .
36 Morris points out (n 34 at 46) that the originating summons did not suggest Italian law as a possible choice, and he assumes that the decision is no authority against the view that the internal law of the domicile should have been applied.
37 The difficulty of identifying the law to which a British national is subject was ignored in Re Ross  1 Ch 377, infra, pp 66–7; Re Askew  2 Ch 259, infra, p 67; and Re Duke of Wellington  Ch 506, infra, p 68. In these cases English law was chosen without argument.
39 See especially: Abbot (1908) 24 LQR 133, 143; Falconbridge, pp 143–5, 151–2; Morris (n 1), 43–4; Mendelssohn-Bartholdy, Renvoi in English Law, pp 58–64.
41 Re Lacroix Goods (1877) 2 PD 94 was another case where the English judge seems to have applied both the private international law rules and the internal law of the domicile; see Morris (n 39), 42. The operation of any renvoi doctrine in matters concerning the formal validity of wills has now been virtually excluded by the Wills Act 1963 which governs wills of testators dying after 1963, and under which there is a variety of systems of internal law by which the formal validity of a will may be tested; infra, pp 1340–2.
44  Ch 692 at 709. This view was rejected by Luxmoore J in Re Ross  1 Ch 377 at 402; in a later case, Re Askew  2 Ch 259 at 278, Maugham J considered that there was “much to be said for it”.
48 Re Wicks’ Marriage Settlement  Ch 475; cf Colquitt v Colquitt  P 19 at 25 where it was suggested that no difference should be drawn between phrases such as a “legitimate child” and a “child of a subsisting marriage”.
60 Per Gummow and Hayne JJ, at ; Gleeson CJ, at para 13; Kirby J, at  and ; Heydon J, at . See Mortensen, (2006) 2 J Priv Int L 1, 10. Nevertheless, Mortensen, at 12, remarks that Neilson, “. . . reinforces our understanding of the shortcomings of the doctrine of renvoi, and especially of double renvoi”.
62 At the international level there are instruments that exclude renvoi (the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 is an example, see Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan  UKSC 46, at para 124), whilst others, such as the 1980 Hague Convention on the Civil Aspects of International Child Abduction, embrace it.
63 M’Elroy v M’Allister 1949 SC 110 at 126. See now the Private International Law (Miscellaneous Provisions) Act 1995, s 9(5), infra, p 778. The Rome II Regulation contains an exclusion of renvoi clause (Art 24). See, in contrast, however, Neilson v Overseas Projects Corpn of Victoria Ltd  HCA 54, supra, p 69; see, for a statement of principle, Callinan J, at . Also Keyes (2005) 13 Torts Law Journal 1; Lu and Carroll (2005) 1 J Priv Int L 35; and Mortensen (2006) 2 J Priv Int L 1.
64 Re United Rlys of the Havana and Regla Warehouses Ltd  Ch 52 at 97; The Evia Luck (No 2)  1 Lloyd’s Rep 319 at 327, affd sub nom Dimskal Shipping Co SA v International Transport Workers Federation  2 AC 152; Amin Rasheed Shipping Corpn v Kuwait Insurance Co  AC 50 at 61–2; and see Kutchera v Buckingham International Holdings Ltd  IR 61 at 68; cf Briggs (1989) 9 OJLS 251, 254–6.
69 Neilson v Overseas Projects Corpn of Victoria Ltd  HCA 54. Cf in a context of classification Raiffeisen Zentralbank Österreich AG v Five Star General Trading LLC and Ors  QB 825 (CA), supra, p 43.
72 Re Annesley  Ch 692, supra, p 66; Re Ross  1 Ch 377, supra, p 66; Re Adams  IR 424. Proposed European harmonisation of choice of law rules concerning the essential validity of wills would “obviate the need for renvoi where all the connecting factors are situated in a Member State”. See EU Green Paper, “Succession and Wills” COM (2005) 65 final, para 2.7; infra, Chapter 36.
76 Re Ross, supra, p 66; Re Duke of Wellington  Ch 506, supra, p 68; Re Bailey  2 NZLR 656; Re Schneider’s Estate 96 NYS 2d 652 (Surr Ct 1950), discussed by Morris (1951) 4 ILQ 268; Falconbridge (1953) 6 Vanderbilt LR 708, 725–31. See Carruthers, paras 1.43–1.45, and pp 276 and 293. Contractual issues are dealt with separately, without renvoi, under the Rome I Regulation.
78 See The Islamic Republic of Iran v Berend  EWHC 132 (QB),  2 All ER (Comm) 132, and note by Knight (2007) Conveyancer and Property Lawyer 564. In Macmillan Inc v Bishopsgate Trust (No 3)  1 WLR 387, Staughton LJ said (at p 405) that renvoi did not apply to the choice of the law to determine who has title to shares in a company. But see Winkworth v Christie, Manson and Woods Ltd  Ch 496 at 514; and infra, p 1269.
82 R v Brentwood Superintendent Registrar of Marriages, ex p Arias  2 QB 956, infra, p 925. The actual decision in this case would now be different by reason of the Family Law Act 1986, s 50, infra, pp 925–6.
83 This view was provisionally supported in Law Commission Working Paper No 89 (1985), paras 2.39, 3.39; but not all commentators agreed, see Law Com No 165 (1987), paras 2.5–2.6. Similarly, use of renvoi is expressly permitted by the Civil Partnership Act 2004, s 54(10) in relation to testing the validity of civil partnerships registered outside England and Wales (cf s 124(10), for Scotland, and s 177(10) for Northern Ireland).
85 Explanatory Report (1981), paras 66 and 67. Infra, Chapter 25. See, eg, Re JB (Child Abduction) (Rights of Custody: Spain)  EWHC 2130,  1 FLR 796, discussed by Beevers and Perez Milla (2007) 3 J Priv Int L 201.