Renvoi IN Private International LAW PDF

Preview

Summary

Prof.Mbau...

Description

Doctorine of renvoi comes into action, whenever, for example a person dies and he leaves some of the property or well behind him/her, so how that can be distrivuted among his/ her heirs, so to have access and divide that property or execute that well, that court will first find whether it has jurisdiction on such property , and whether it will be divided according to the law of country in which he died? Or according to the law of country of nationality? Or of the law of country in which he is domiciled? For example A , a british national dies intestate, and he is domiciled in Italy and an england’s court is required to decide how his movable property in England are to be distributed? So according to England rules for choice of law, claim to such movable property is governed by Italian law, because he is domiciled in Italy, but in Italian rules for choice of law, it must be distributed according to the law of nationality, so the English court will either refer it to Italy or either decide it by itself , and doctorine of single renvoi and double renvoi will work in solving such problem.1 Origin or renvoi: before 19th century the problem of renvoi was hardly noticed and problems existed between rules on conflict of laws thus in pre revolutionary france , several local and regional customs rules of conflict of laws, and some of these rules varied from custom to custom and first it was applied in coller v rivaz case.2

renvoi is taken (from the French, meaning "send back" or "to return unopened") is a subset of the choice of law rules and it may be applied whenever a forum court is directed to consider the law of another state.3

The Hague Conference on Private International Law formed in 1893 to "work for the progressive unification of the rules of private international law". “ pursued this goal by creating and assisting 1 Chesheri and north, p51 to 53, private intenational law, 13th edition, exford university press,2004 2 j.georges sauveplannne, international encyclopedia on comparative law, chapter 2 , page 3-4 , volume 2,published by J.C.B , LANCASTER, 1990 3 http://definitions.uslegal.com/r/renvoi/, accessed on 8:06 pm 20/12/2015

in the implementation of multilateral conventions promoting the harmonisation of conflict of law principles “ about 30 international conventions focusing on the rules of conflict of laws Rome Convention (1998). 4 The Vienna Convention on the International Sale of Goods (1988) Rome Convention on the the Law (1980) Applicable to Contractual Obligations5 UNIDROIT (The International Institute for the Unification of Private Law )6 The private international law of trusts is substantially containedin the Hague Convention on the Recognition of Trusts, givenforce in England by the Recognition of Trusts Act 1987. New York Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958 Lugano Convention ,United Kingdom Legislation: Civil Jurisdiction and Judgments Act 1982, Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 19967

In single renvoi a judge of country is faced with conflicting rules of his country and sends the case to foreign country but according to law of that country the case is referred back to his coutry and his country accepts such reference and applies law of his country, it is called single renvoi. For example: in forgo case: a barvarian national dies intestate in france , and his relatives wanted to succeed to his property , but French court according to to its conflicting rules referred the matter to Bavarian court and the bavaraian court according to its conflicting rules referred back to French law so French court applied its own law and accepted the remission(renvoi).

4 https://www.hcch.net/en/instruments/conventions, accessed on 10:34 pm 20/12/15 5 http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG.html accessed on 10: 40 pm 20.12.2015 6 http://www.unidroit.org/publications/513-unidroit-principles-of-international-commercial-contracts 7 ADRIAN DRIGGS,THE CONFLICT OF LAWS,3RD EDITION,INDEXES,PUBLISHED BY EXFORD UNIVERSITY PRESS.

In double renvoi a judge of English court who according to the conflicting rules of his own country sends case to foreign country and that country sends it back to him to solve the problem by the law of his own country and he applies law of foreign country by whom the case is sent. It is called double renvoi For example: A , a british died in Belgium and had property in England and according to conflicting rules of Belgium the case is sent to England, and according to law of conflicting rules they sent it back to Belgium but Belgium rejected remission and applied internatil law of England. 8

The difference is just in remission, if remission is accepted by a court and applies its own law , it is single renvoi. And if remission back is not accepted and the court applies law of foreign country court , it is called double renvoi, so it means to get into the shoes of the judge of foreign country and apply their.9 A conflict of laws should be avoided by an express choice of law clause, with an express choice of forum, for example: “This contract is governed by the law of New South Wales and the Parties submit to the exclusive jurisdiction of the courts in Sydney”10 The conflict of laws emerges when to a juridical report with an element of extraneity, are susceptible to be enforced two or more laws belonging to different law systems, systems to which the juridical report has a connection through the element of extraneity 11 8 Dicey&morris, conflict of laws, 12th edition, p71-72, volume1, published by sweet& marxwell, London, 1993 9 Christopher M V Clarkson; Jonathan Hill ,the conflict of laws, 2edition, Page 36-38, published by, butterworths, London, 2002 10 John Levingston,1Choice of law, jurisdiction and ADR clauses 6th annual Contract Law Conference, Sydney, page9 published in 26-28 February 2008 11 Filipescu and A. I. Filipescu, Private International Law Treaty, Universul Juridic Publishing House, pp. 33.Bucharest, 2005.

Some jurists are in favour of doctorine

of renvoi like Westlake and dicey:

The remission to foreign law is considered to be a remission to the whole system of law, including to its conflicting norm. renvoi almost always functions in favor of the law of the judicial forum, . The foreign law has to be applied when it self-declares competent. Renvoi demands to be admitted; The renvoi ensures the enforcement of judgments Second degree renvoi can be a means of coordination of law system in the presence, if one of those law systems does not accept the renvoi. The impossibility to determine the competent law in case of second degree renvoi can be avoided by applying the material law indicated by the conflicting norm of the judicial forum, or by the material law of the judicial forum; considering that the second degree renvoi can provide the synchronization of the solutions provided by the laws”12

Some are against it like lorenzen Arguments against the admission of the renvoi: “ The renvoi may lead to a continuously loop of new cases of renvoi (aninextricable circle) . If the first remission imposed by the conflicting norm of the judicial forum is considered as referring to the whole foreign law system, then the renvoi must also be referred to the whole law system of the judicial forum, including its conflicting norms. In this case, the declared unqualified conflicting norm disposes a new renvoi to the foreign law which in turn returns again to the law of the judicial forum and so on. If the renvoi is acknowledged it means an arbitrarily exit of this inextricable circle. The admission of the renvoi generates uncertainty regarding the legal solution.

12 berlingher remus denial , the renvoi in private international law, International Journal of Social Science and Humanity, page, 67,68,Vol. 3, No. 1, January 2013

The renvoi can not be accepted because it increases the uncertainty in private international law and constitutes an exception to the normal cases of application of the foreign law. For these mentioned reasons several treaties and international conventions no longer allow the renvoi”.13

Situations in which a court may not apply foreign laws like a:exclusion of foreign laws that infringe forum public policy The courts have a general discretion to decline to apply particular foreign laws which infringe the forum’s public policy. B:Exclusion of foreign laws that enforce foreign governmental interests The courts will not enforce a law which involves the enforcement of foreign governmental interests namely, interests ‘which arise from certain powers.14 peculiar to government’”.

There are some difficulties of renvoi like lack of experts of foreign law. There will be no benefit of rule of renvoi if foreign court totally rejects this rule and dos not provide solution for it. A foreign court can deny to have or to exercise jurisdiction ober the case for example some counries do not accept to exercise jurisdiction over the cases of property which is not situated in that country, and thus you can not force that country to provide solution for it and decide the case. Also if a person has two or more nationalities , how can you find that law of which nationality will be applied. It is illogical that a person dies domiciled in one country and start the case in another country. Also there can be problem of limitation acts of the countries.15 13 H. Batiffol and P. Lagarde, Droit international privé, 7th ed., Paris, Librairie générale de droit et de jurisprudence, 1983, pp. 365-366. 14 mary keyes, tort law jornal, p 201,2011 ,v18,published by lexis nexis,2010 15 roger, david, herna, conflict of laws-case-comment-questions, 4th edition, p65 to 68, American cash book series, west publishing CO.ST PABL MINN, 1987

scope and issues to which renvoi can be applied like for the validity of will. Some cases of movable properties, some of family law issues like capacity to marry or other marriage issues ,To the law of place where will was made(le loci actus),For th claim of immovable situated in foreign country( lex actus) ,To the law of the domiciled. The renvoi, especially the total renvoi is not applicable , generally its scope is limited in some matters, like torts, insurance, mortgates, negotiable instruments, partnership, dissolutionof foreign companies and contracts because parties usually do not refer to the law of foreign country in their contracts.16

Common law countries use the lex domicile and the civil law countries accept lex ligeantiae and solve th cases on the bases of nationality, Lex actus :the law of the place where obligation was established, for instance, the place where the contract was concluded Lex loci solutionis :the law of the place where the legal act is to be carried out, for instance, the fulfillment of a contract Lex loci celebrationis :The formalities of a marriage are governed by the law of the place where the marriage ceremony was conducted Lex loci situs :the law of the place of situation of the property forming the subject matter of the dispute (lex situs); The law of the place where an object is situated; governs the right to possession of immovables Lex fori : The law of the forum or court governs matters of procedure, the mode of trial, evidence, remedies. Lex causae :The system of law (usually foreign) applicable to the case in dispute; substantive rules. 16 Cheshri’s and north, private international law , page 64-66, 13th edition, exford university press,2004

Lex domicilii :The law of the country of domicile determines such matters as capacity to make a will, the validity of a will; consent to marriage, marriage contract Lex loci contractu : The law of the place where a contract was made .17

Family case: In Taczanowska v. Taczanowski the Court of Appeal was prepared to apply renvoi and to hold that, if a marriage was not celebrated in compliance with the lex loci celebrationis, but that law would hold the marriage valid if it accorded with the parties’ personal law, it would be valid here. The lex loci celebrationis also determines whether a marriage can be celebrated by proxy.18 TORT: in Re Weston’s Settlements, the settlor and two of his sons who were beneficiaries emigrated to Jersey three months before the application was made to the court. The parties’ uncontradicted evidence was that they intended to remain there permanently, but the Court of Appeal did not believe this. It was convinced that, even though a substitution of a settlement governed by Jersey law would benefit the beneficiaries, the object of the arrangement was solely to avoid taxation, and refused to approve it.19 CONTRACT: InRoyal Boskalis NV v. Mountain,116 it was held that making contractual payments in violation of United Nations sanctions enacted into Dutch law was akin to trading with the enemy for the purposes of public policy. In the same case it was said that a contract obtained by a class of duress so unconscionable might, as a matter of public policy, override the law which governs it. Regazzoni v. KC Sethia (1944) Ltd,a seller in India agreed to sell jute bags to a Swiss buyer for delivery to Genoa. The seller knew that the buyer intended to resell and deliver them to South

17JOHN O BRIEN,CONFLICT OF LAWS,2ND EDITION,P46-52,PUBLISHED BY CAVENDISH PUBLISHING LIMITED,LONDON.SYDNEY. 18 J.G.COLLIER, CONFLICT OF LAWS, 3RD EDITION, P296,PUBLISHED BY COMBRIDGE UNIVERSITY PRESS. 19 J.G.COLLIER, CONFLICT OF LAWS,3RD EDTION,P291,PUBLISHED BY COMBRIDGE UNIVERSITY PRESS.

Africa, and they both knew that under Indian law it was a criminal offence to export jute to South Africa from India, where the jute was to be obtained. The House of Lords refused to enforce the contract.20 TORT: In Phillips v. Eyre an action for assault was brought in England against the Governor of Jamaica, the alleged tort having been committed in Jamaica. This was a tort by English law and would have been so by Jamaican law, but after the deed was done, the Jamaican legislature passed an Act of Indemnity, relieving the governor of liability. It was held that the claimant could not recover here. In a celebrated judgment Willes J said, in words which have sometimes since been treated as if they were contained in a statute, that conduct abroad is actionable as a tort in England if: (1) it is of such a character as to make it actionable as a tort had it been committed here [i.e. English law applies], and (2) it is not justifiable by the law of the place where it was committed. In Phillips v. Eyre itself, (1) was satisfied, but (2) was not, so the claimant’s action failed.21 Conclusion: it can not be agreed on the doctorine of renvoi generally, but in some exceptional cases ,it can be agreed with it, as in islamic law, if dhimmis,muslims are in the territory of islam then they are to abide by law of territory of islam totallyexcept in some cases of family matters, and they are allowed to perform thier religious affairs. and the mustamin(it can be who is on visa in today's era) in territory of islam , has contractual issue which was made in his country then the renvoi or his law of country will be applied, and if he commits any action of tort or marry under law of territory of islam then they should abide by law in which they committed the tort because collecting evidence, litigation etc is not possible in such case and penal laws also differ. and if muslims are outside territory of islam then they should abide by law of that territory in which they live,except in some cases like of family issues etc, but not in torts etc...

20 J.G.COLLIER,CONFLICT OF LAWS,3RD EDITION, P216-217,PUBLISHED BY COMBRIDGE UNIVERSITY PRESS. 21 J.G.COLLIER,COLFICT OF LAWS,3RD EDITION, P22-223,PUBLISHED BY COMBRIDGE UNIVERSITY PRESS.

but if muslim comes to the territory of islam then he should also abide by the law in which he had made contract etc.. so the renvoi rule can be accepted in some matters and denied in some matters as mentioned above, and some of decissive factors of conflicting rules can be applied like Lex actus , Lex loci solutionis, Lex loci situs, Lex loci contractu. But there can be problem and conflict of the domcilli rule....