MDU-CPAS

ASSIGNMENT
OF
PRIVATE INTERNATIONAL LAW

SESSION – 2020-2021

TOPIC – DOCTRINE OF RENVOI

(INDIAN POSITION)

Submitted to Submitted by
Dr. Meenu Tanya Chhabra
Roll no. 3591-B
B.A L.L.B (IX Sem)

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 ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards

to my guide Dr. Meenu for her exemplary guidance, monitoring and
constant encouragement to give shape to this assignment. The blessing,
help and guidance given by them time to time shall carry me a long way in
the journey of life on which I am about to embark.

I also take the opportunity to express a deep sense of gratitude to my

respected seniors who shared their cordial support, valuable information
and guidance, which helped me in completing the task through various
stages.

Last but not the least, I think the almighty, my parents, brother, sisters and
friends for their constant encouragement without which this assignment
would not have been possible.

Tanya Chhabra

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 TABLE OF CONTENTS

INTRODUCTION…………………………………………………………………………………... 4

MEANING OF RENVOI…………………………………………………………………………… 4

SCOPE OF DOCTRINE OF RENVOI IN PIL…………………………….……..……………….... 4

MEANING………………………………………………………………………………………….. 4

OBJECTIVE………………………………………………………………………………………… 4

CASE STUDY…….………………………………………………………………………………… 4

TYPES OF RENVOI……………………………………………………………………………...… 5

INDIAN POSITION…….…………………………………………………………………………... 7

ADVANTAGES…………………………………………………………………………………….. 9

DISADVANTAGES ………..……………………………………………………………………... 10

CONCLUSION………………………………………………………………………………….…. 10

BIBLIOGRAPHY………………………………………………………………………………..… 10

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Introduction

 Private International Law is that part of law which comes into operation whenever the court is faced
with a dispute that involves a foreign element.
 Foreign Element means any fact relevant to the issues involved in the proceedings which has a
connection with a territorial unit other than the territorial unit where the court is dealing with the
proceedings.
 Examples of foreign element:
a) Parties are the citizens of a foreign country
b) Domiciled in a foreign country

Meaning of Renvoi

 The word ‘Renvoi’ comes from a French word which means “send back” or “return unopened”.
 It is the last stage of characterization which the court is required to apply the law of a particular
country or place.
 The Doctrine of Renvoi is the process by which the Court adopts the rules of a foreign jurisdiction
with respect to any conflict of law that arises.

Scope of Doctrine of Renvoi in PIL

 It is a fundamental principle and one of the important subjects of Private International Law or
Conflict of Laws.
 Because sometimes court sees that the issue will be decided in accordance with the law of another
country, it is the time when doctrine of Renvoi plays its role in solving the problem.
 Renvoi is a technique for solving problems which arise out of difference between the connecting
factor used by English Law and that of the law to which the English connecting factor leads.

Objective

 The idea behind this doctrine is to prevent “FORUM SHOPPING” and the same law is applied to
achieve the same outcome regardless of the place where the case is actually dealt with.
 Forum Shopping means to file a suit where parties get their favourable decision.

Case Study

 The very first matter to be decided by a court in any case is the Matter of Jurisdiction.
 Once it is decided that a court has jurisdiction and what choice of law are applicable, the judge will
apply the chosen law and if the chosen law is English Law, the judge is required to give effect to
English internal law.

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 Eg- Where a person dies intestate domiciled in England, here his property will be distributed by
following the English internal laws relating to property. There is no requirement to give attention to
PIL because of absence of foreign element.
 But if the application of law is that of a foreign country, the situation becomes complex. The
difficulty is to determine - What is meant by Applicable Law?
 Eg- X, a British subject, dies intestate, domiciled in Italy and an English Court is required to decide
how his movable property in England are to be distributed?
 According to the English Law for choice of law regarding intestate succession to movable property
is governed by the Law of Domicile of the person concerned. i.e., in this case Italian Law as being
the law of X’s domicile at the time of death. But acc to the Italian Law, it must be referred to the
law of England as being the Law of his Nationality.

 Meaning of Italian Law-

 It has 2 meanings:
 Italian Internal Law; or
 Italian Internal law including rules of Private International Law

 If we refer to the first meaning, then we face a further difficulty is caused by difference between
English and Italian Laws.
 If we refer to the second meaning, we find the issue referred back to English Law.
 The question is whether we are going the divergent Italian Law or to accept the reference back, are
we to stop finally at the point and to distribute X’s property according to the English internal laws.

 When such a situation is faced, owing to the difference in the Private International Law of two
countries, there are 3 possible solutions:
 Option 1: Take the ‘Law of Italy’ to mean the internal laws of Italy or
 Option 2 : Decide the case on the assumption that the Doctrine of Single Renvoi is recognized by
English Law or
 Option 3 : Take the ‘Law of Italy’ to mean the law which an Italian judge would administer if he
were faced with the matter, i.e., “The Doctrine of Double Renvoi”.

Types of Renvoi:

 Before a judge resort to the doctrine of renvoi, there is a solution of Application of Internal law
only. But, if there was no room for application of Internal law, then judge may apply the proper
type of Renvoi.
 Renvoi has two types:
 Partial/ Single Renvoi
 Total/ Double Renvoi

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Single Renvoi:

 Single Renvoi is called Remission in English where legal systems of two countries (eg- Italy and
England) are involved but if three countries legal systems are involved then it is called
Transmission.
 Countries such as Spain, Italy and Luxembourg operate a Single Renvoi System. This system refers
to another Jurisdiction’s choice of law rules.
 In Single Renvoi, a judge of a country is faced with conflicting rules of his country and sends the
case to the foreign country but according to the law of that country, the case is referred back to his
country and his country accepts sub-reference and applies the law of his country.

Case Study: Forgo v. Administration (1883)

 Forgo, a Bavarian (state of Germany) died intestate in France, where he had lived since the age of 5
years. The question before the French Court was whether his movable property in France should be
distributed according to the internal law of France or Bavaria.
 According to Bavarian Law, collateral relatives were entitled for property, but according to French
Law, the property passed to the French Government and not to collaterals.
 French PIL referred the matter to Bavarian Law but Bavarian PIL referred it to French law.
 So, the court of France accepted the remission and applied the succession law of France.

Double Renvoi: (Foreign Court Theory)

 Cheshire and North defines double renvoi as-

“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 a case.”
 This solution demands than an English Judge, who is required by his own law to refer to the legal
system of a foreign country, must apply whatever the court in that foreign country would apply if
for instance it were hearing the case.
 Countries such as England, North America and Australia operate Double Renvoi system. Countries
like Denmark, Greece and the US do not accept this system.
 Illustration:
A British national dies domiciled in Belgium, leaving assets in England. A Belgian judge dealing
with this matter would be required by the Belgium PIL to refer to the English Law but then he
would find the case is referred back to him by the English Law. An English Judge is imaging how a
Belgian Judge is going to decide the following matter. Now the Belgian Judge has two options:
 Accept the Remission and apply own internal laws of Belgium’ or
 He might reject the remission and Apply the English Internal Law.
 Whatever the Belgian Judge would do would determine the decision of the English Judge.

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 The English Judge also has to see whether the doctrine of Single Renvoi is recognized by the
particular foreign country’s law to which he is referred.

INDIAN POSITION -

The doctrine of Renvoi has not discussed or clarified by Indian courts in any case. The only reference
to the concept of Renvoi is:

National Thermal Power Corporation v. Singer Company (1992 (3) SCC 551)

This case was relating to contract. The Supreme Court of India observed that “the expression proper
law refers to the substantive principles of the domestic law of the chosen legal system and not its
conflict of law rules.”

Cases where Renvoi can be Applied:

 Morris rightly says that “as a purely practical matter, it would seem that a court should not
undertake the onerous task of trying to ascertain as to how a foreign court would decide the
question, unless the situation is an exceptional one and the advantages of doing so clearly outweigh
the disadvantages.
 In most situations, the balance of convenience surely lies in interpreting the reference to foreign law
to mean its domestic rules.”

Situations where India supposed to apply the Doctrine of Renvoi:

#1 Title to Foreign Land: (Lex Situs: Law of the place in which property is situated)

 The country in which immovable property is situated has, by the very nature of things, a permanent
and exclusive physical control over it. It would therefore be a realist approach to determine the title
to such property by the application of the whole of the law of the situs of the property.
 “The reason for applying the Lex Situs is that any adjudication which ignores the lex situs would be
a brutum fulmen, since in the last resort the land can only be dealt within a manner permitted by the
lex situs – It would follow that if the law of situs recognizes a will or deed to be valid which is
executed in accordance with the law of the place of execution, or if it recognizes the capacity of de
cujus to executed such a will or deed in accordance with the law of nationality or law of domicile,
(In Re Ross Case) or if there is return reference to the law of forum or if there is forward reference
to the law of a third country, this should be supplied by courts of all countries.
 Eg- Indian Judge is rendering a judgment regarding a particular immovable property situated in
London, if the judgment is not recognized by the British Law, the judgment that was rendered here
will be Brutum fulmen, so to avoid such kind of scenario it is far better to apply the English Law
because of lex situs.

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#2 Title to Foreign Movables: (Lex Domicilii: Law of the Domicile)

 It has been suggested that the doctrine of renvoi should be equally applicable to movable property
situated abroad.
 But since the situs of movables can always be changed, the argument is not so strong as in the case
of foreign immovables.
 Eg- A person domicilied in Germany. But he has property in England and case brought in India,
then rule of Lex Domicilii will be applied.
 There is a different of opinions: Some preferred Lex situs and some Lex Domicilii.
 In India, Lex Domicilli will make better sense that of Lex situs because it is a movable property, a
person can keep it wherever he wants.

#3 Concept of status : (Lex Domicilii: Law of the Domicile)

 As to the status of marriage it has been suggested that the status of marriage which is recognized by
the lex domicilii should be recognized everywhere.
 In view of special favour shown all the world over to the institution of marriage and for the sake of
uniformity I the rules of PIL, a view has been propounded that, a change in the status of parties to
marriage effected outside the country of domicile of the parties should also be recognized
everywhere else if it is recognized by the country of the domicile of the parties.
 Then, should this rule be restricted to recognition of status of marriage, or should it be extended to
all cases of status.
 The American Restatement of Conflict of Laws favours the application of the rule to all matters of
status, while the decision in Re Askew seems to suggest a restricted application of the rule. Its
submitted that the former view is preferable.
 As to the status of marriage, Lorenzon has suggested that a marriage status should be recognized if
it satisfies either the law of the place where it was entered into or the law of the domicile of the
parties.

#4 Formalities of a Will:

 The doctrine of a renvoi has been advocated in respect of formalities of a will.

 Cheshire suggests that a grant of probate to wills should not be denied ‘on the ground of formal
invalidity if the instrument if formally valid according to the PIL, though not according to the
internal law, of the governing legal system’. Lorenzen seems to support this view.
 Morris has doubted the expediency of this indulgence. The Wills Act, 1963 excludes the
application of the doctrine of renvoi to the formal validity of wills, even in respect of immovable
property.
 It leans very favourably in respect of formal validity of will by making a will formally valid if it
complies with the formalities of the internal law of the place of execution, of the domicile of the
testator, of the habitual residence of the testator, or nationality of the testator.
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#5 International Conventions:

 Sometimes back, the doctrine of renvoi was an expedient through which the nations of the world
could come together for framing international convention.”
 This importance of renvoi has been lost in our contemporary world.

#6 Transmission :

 Morris advocates the application of the doctrine to certain cases of ‘transmission’.

 He says: ‘the foreign law referred to by the English court refers to a second foreign law and the
second foreign law would agree that it was applicable, the case for applying the second foreign law
is strong.’
 Morris proceeds to say that if the second foreign law would not agree that it is applicable, then
there seems to be no reason why it should be applied.

 Thus, if a German national domiciled in Italy died leaving behind movables n England, and the
Italian and German laws agree that German domestic law is applicable because the propositus at the
times of his death was a German national, then English court should apply the German internal law.
 On the other hand, if a Danish national domiciled in Italy dies leaving behind movables in England
and if the Italian law will apply the law of nationality and Danish law would apply the law of
domicile, neither law recognizing any renvoi from the other it seems that the English court should
apply Italian domestic law.

 One would agree with the observation of Morris that the doctrine is of no practical utility.
 One would be most heartily inclined to agree with Lorenzen when he says, it may reasonably be
hoped that, when the doctrine with all its consequenes is squarely presented to the higher English
court, they will not hesitate to reject the decisions of the courts that have lent colour to renvoi in
English Law.
 Happily, there is no Indian case which directly supports the doctrine of renvoi and it may be hoped
that our courts would not be tempted to apply the doctrine just because it has found favour in certain
decisions of English court and with some eminent English writers like Dicey and Westlake.

Advantages of Doctrine of Renvoi

 The courts avoid a foreign internal law that has no connection with the propositus by resorting to
foreign choice of law rules.
 It promotes the reasonable expectation of the parties.
 The principal reason for resorting to total renvoi is to achieve uniformity in terms of the resolution
of the case, irrespective of the country in whose court, the claim is brought.

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Disadvantages of Doctrine of Renvoi

 There are practical difficulties involved in the application of Renvoi because it is not certain which
law should be applied.
 Where foreign law refers to nationality, easy for unitary states but problematic for federal states.
 It generally requires detailed expert evidence about the state of state of foreign law, so there are
some practical problems.
 Renvoi subordinates English choice of law rules to those of a foreign system.

Conclusion:

 Problem of Renvoi arises in connection with the application of law of country. It may mean the
internal law of a country, i.e., excluding the rules of PIL or including the rules of PIL.
 The rules of PIL of that country, either:
 Refer back to the Forum, or
 Refer Forward to a third country.
 So, it is a process by which the Court adopts the rules of a foreign jurisdiction for any conflict of
law that arises. It does not discover a spot in the fields of contract or tort. And if there is no renvoi,
the court will apply the Internal law.

Bibliography

 Paras Diwan, Peeyushi Diwan “Private International Law-Indian and English” (Fourth Revised
and Updates Edition, 1998)
 https://www.advocatekhoj.com/library/judgments/index.php?go=1992/may/5.php
 https://en.wikipedia.org/wiki/Renvoi
 https://legal-dictionary.thefreedictionary.com/private+international+law
 https://www.pearse-trust.ie/blog/bid/110454/the-rule-of-doctrine-of-renvoi-explained

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