By Dr AbdelGadir Warsama, Legal Counsel
30 August 2023
“Send back” rule based on the “Doctrine of Renvoi” was very famous approach. In conflict of laws and private international law, we came to know more about the “Doctrine of Renvoi”, which was of paramount importance in the legal history for some time back. However, the issue has come up again in some jurisdictions and cases between multi-national companies dealing with many jurisdictions and therefore the issue needs some clarification and refreshment. Moreover, the volatile wide-spread of international trade activities and e-commerce, also, raises the current importance of Renvoi.
The word “renvoi” comes from French and means “send back” to another foreign Court, or “to return unopened” to another foreign jurisdiction or Court. The Doctrine of Renvoi indicates the choice of law rules and it may be applied whenever a forum Court is directed to consider another law, the law of foreign jurisdiction.
There is a special procedure for cases governed by the Doctrine of Renvoi. Wherein, the Court must first decide whether it has the jurisdiction to hear the case. This will ultimately involve addressing the question of whether the plaintiff is attempting to manipulate the judicial system by “forum shopping”. In other words, attempting to run away from the local jurisdiction to another or to delay justice or otherwise. Moreover comes, the characterization issue, in which the Court must analyze the case as pleaded and allocate each component to its appropriate legal classification, each of which will have one or more choice of law rules attached to it. The court will then apply the choice of law rules. During the Court procedural process and to try to limit the damage that would result from forum shopping, it is desirable that the same law be applied to achieve the same result no matter where the case is litigated.
Basically, the system of the Doctrine of Renvoi is an attempt to achieve that end to maintain justice and equity. If a Court is to consult a foreign law, the first question it must address is whether this is reference to the relevant substantive provisions, or to the state’s system of law as a whole which would include its choice of law rules. Forums that do not have or not applying the Doctrine of Renvoi provisions refer only to the specific provisions of relevant law. In this way, the same outcome is achieved no matter where the case is litigated so long as the second state would also have applied its own laws. But if that second country actually has choice of law rules requiring it to apply the forum law, a difference in outcome might arise depending on where the plaintiff invokes jurisdiction.
Whether a difference actually emerges depends on whether the other state operates a “Single Renvoi” system which always refers to the other law’s choice of law rules. If those rules would send the issue back to the forum Court, the forum Court will accept the first remission and applies its own laws. Thus, equality of outcome is achieved so long as the competing laws operate different systems. But if both laws operate with either no Renvoi system or single renvoi systems, forum shopping will be a problem.
There is another system called “Double Renvoi” or the Foreign Courts Doctrine which will also ensure parity of result so long as no other relevant law is using it. Here, the forum Court considers that it is sitting as the foreign court and decide the matter there in the same way as the foreign Court.
As a matter of fact and because the doctrine is considered difficult and its results are sometimes unpredictable, some multi-national companies refer to it. Otherwise, its application has generally been limited to the validity of wills, intestate succession and retrospective legitimation of marriages. However, there are indications in some states that it might also apply the issues in family law, namely the capacity to marry and the formal validity of marriage.
In the United States most Courts try to solve conflict of laws questions without invoking Renvoi. There are examples where Renvoi is recognized as an option, in which the local Court chose to apply the foreign country’s laws to decide the dispute in the local Court. Worldwide, Renvoi role is diminishing, except in family private matters as there are differences in the laws regulating them.