The Renvoi Theory, Its Development, Application to Contractual Choice of Law and the Way Forward

Abstract

It is understood that while every state includes one internal body of law that is applicable to domestic situations, it also includes another body that is applicable to scenarios involving a foreign element. This latter body of rules is commonly referred to as the conflict of law rules. These rules often require a particular forum to apply the law of a foreign state which may be the place of situs of some property, place of domicile for a litigating party, or the place where a contract is signed. Where reference is made to the law of the foreign state, does that reference pertain to the local law of the foreign state or the conflict of law rules of that state will determine whether the court making the reference accepts the doctrine of Renvoi. If reference is made to the conflict of law rules of the foreign state, then the forum making the reference accepts the doctrine.The conflict of law rules for the foreign country may refer the matter back to be dealt with the law of the forum or to the law of a third nation, and such transfers are referred to as remission and transmission respectively. The first ever mention of the term was made in a note in the 1898 issue of Law Quarterly review.It states that at the time, judges of courts in France, Italy and Germany as well as academicians of the time were deeply concerned about the question of Renvoi or Die Riickund-Weiterverweisung as it was called in German. This term, however, was still unheard of in England. The note understands the phenomenon of Renvoi in terms of a 'remission' by a superior court to an inferior court to be further dealt with. The note leaves the question of the validity of Renvoi and its adoption by the English system unanswered. The note is important in that it is the first ever mention of the term Renvoi in English legal writing. The Renvoi question first surfaced in a French Court in 1841 but did not gain importance until later in 1878. Even then, it failed to capture the attention of English Courts. It is believed that each state has the vested right to deal with the legal consequences that arise of facts occurring in that state and in the same vein courts cannot enforce no legal obligations that are created elsewhere. When the court of the forum ‘refers’ to the law of a foreign state, it means that the court will enforce the same right as the foreign court would have enforced faced with a similar factual situation.