Sources
- Roosevelt, Kermit III (May 1, 2005). "Resolving Renvoi: The Bewitchment of Our Intelligence by Means of Language". Notre Dame Law Review. Notre Dame, Indiana: Notre Dame Law School. 80 (5): 1821–1891. ISSN 0745-3515. OCLC 209129333.
| Conflict of laws and private international law |
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| Preliminaries |
| Definitional elements |
| Connecting factors |
| Substantive legal areas |
| Enforcement |
In conflict of laws, renvoi (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.
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. The system of renvoi is an attempt to achieve that end. If a forum court is directed to consult a foreign law, the first question it must address is whether this is a reference solely 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 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, as long as the second state would also have applied its own laws.
But if that second state 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 emerges depends on whether the other state operates a single renvoi system. A single-renvoi forum 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. As a result, equality of outcome is always achieved if the competing laws operate different systems. Some early French authorities support this approach (e.g. Forgo's Case (1882) and Soulié's Case (1910)). Similarly, Article 27 of the Introductory Law of the German Civil Code (1900) adopts it. But if both sets of laws operate with either no renvoi system or single renvoi systems, forum shopping will be a potential problem.
Hence, there is another system called double renvoi or the foreign-courts doctrine, which will also ensure parity of result as long as no other relevant law is using it. In this scenario, the forum court considers that it is sitting as the foreign court and will decide the matter as the foreign court would. In this system, there can never be more than two remissions; e.g., English forum refers to French law (a single-renvoi system) so English law is applied (1st remission) and France accepts the remission (2nd and final). At present, only English law uses this approach.
Because the doctrine is considered difficult and its results are sometimes unpredictable, application of renvoi has generally been limited to:
However, there are indications in some states that it might also apply to two issues in family law: the capacity to marry and the formal validity of marriage.
In the European Union, application of renvoi is expressly excluded in contract cases under article 20 of the Rome I Regulation (regulation (EC) 593/2008l formerly in Article 15 EC Convention on the Law Applicable to Contractual Obligations, Rome 1980). It has also been rejected for contracts by most Commonwealth countries. [1]
Most states also exclude it in tort cases e.g. in the UK section 9(5) of the Private International Law (Miscellaneous Provisions) Act 1995. Since 11 January 2009, Regulation (EC) 864/2007 (the Rome II Regulation) on the law applicable to non-contractual obligations has been in force, controlling in a uniform way the rules throughout the European Union. Article 24 of this regulation provides: "The application of the law of any country specified by this Regulation means the application of the rules of law in force in that country other than its rules of private international law." hence excluding the possibility of renvoi throughout the EU in tort cases.
In Australia, the doctrine of renvoi was revived by the decision of the High Court in Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 (29 September 2005). In this decision the High Court considered the situation of Mrs Neilson, who had injured herself falling down the stairs in her apartment in Wuhan, China. Her apartment had been provided by her husband's employer, Overseas Projects Corporation, and Mrs Neilson sued her husband's employer in negligence in the Supreme Court of Western Australia in June 1997, six years after the accident had occurred. Under Australian choice of law rules, the law of the place of the incident or lex loci delicti governs tort situations (following the decision of that court in 2002: Regie Nationale des Usines Renault SA v Zhang). This meant that the law relevant to the resolution of the dispute was that of the People's Republic of China. However under Chinese law, the claim would have been statute barred for exceeding the limitations period (Article 136 of the General Principles of Civil Law of the People's Republic of China). However Mrs Neilson raised Article 146 of the General Principles in her defence, arguing that the provision of that article should apply making the relevant law for the dispute Australian law. Article 146 provided that:
"With regard to compensation for damages resulting from an infringement of rights, the law of the place in which the infringement occurred shall be applied. If both parties are nationals of the same country or domiciled in the same country, the law of their own country or of their place of domicile may also be applied"
As a consequence, the Supreme Court trial judge concluded that Art 146 "gives me a right to choose to apply the law of Australia because both parties are nationals of Australia." This decision was reversed by the Full Court of the Supreme Court of Western Australia.
On appeal to the High Court, Neilson succeeded. In six separate judgments, the majority of the High Court found in favour of Neilson on the basis that the Australian choice of law rule referred to the whole of the law of the place of the wrong. Secondly, that this meant that the applicable law was referred back to Australia and the Australian limitations statute applied, meaning that Neilson's claim was no longer statute barred.
This decision has received strident criticism by Martin Davies, [2] and both the High Court and Full Court decisions have received very close attention by leading contemporary conflicts scholars including Andrew Lu and Lee Carroll, [3] Elizabeth Crawford, [4] and Mary Keyes. [5]
It has been suggested that this messy interpretation of the Australian Court could have been avoided, had the Court followed the general practice that procedural rules always go with the forum and substantive law depends on the "forum most interested" analysis. However, since John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, statutes of limitations are considered substantive law. Because of this, the applicability of limitation laws no longer go with the local forum; rather, they too follow the lex loci delicti.
In the United States most courts try to solve conflict of laws questions without invoking renvoi. In Re Schneider's Estate, 96 N.Y.S.2d 652 (1950), is an example 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. This is most likely to happen in cases involving immovable property or domestic relationships.
There are three main difficulties in cases where renvoi may be an issue:
In law, common law is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions.
Conflict of laws is the set of rules or laws a jurisdiction applies to a case, transaction, or other occurrence that has connections to more than one jurisdiction. This body of law deals with three broad topics: jurisdiction, rules regarding when it is appropriate for a court to hear such a case; foreign judgments, dealing with the rules by which a court in one jurisdiction mandates compliance with a ruling of a court in another jurisdiction; and choice of law, which addresses the question of which substantive laws will be applied in such a case. These issues can arise in any private-law context, but they are especially prevalent in contract law and tort law.
A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated. In most jurisdictions, such periods exist for both criminal law and civil law such as contract law and property law, though often under different names and with varying details.
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.
Forum non conveniens (FNC) is a mostly common law legal doctrine through which a court acknowledges that another forum or court where the case might have been brought is a more appropriate venue for a legal case, and transfers the case to such a forum. A change of venue might be ordered, for example, to transfer a case to a jurisdiction within which an accident or incident underlying the litigation occurred and where all the witnesses reside.
Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states, or provinces. The outcome of this process is potentially to require the courts of one jurisdiction to apply the law of a different jurisdiction in lawsuits arising from, say, family law, tort, or contract. The law which is applied is sometimes referred to as the "proper law." Dépeçage is an issue within choice of law.
In contract law, a forum selection clause in a contract with a conflict of laws element allows the parties to agree that any disputes relating to that contract will be resolved in a specific forum. They usually operate in conjunction with a choice of law clause which determines the proper law of the relevant contract.
Characterisation, or characterization, in conflict of laws, is the second stage of the procedure to resolve a lawsuit that involves foreign law. The process is described in English law as Characterisation, or classification within the English judgments of the European Court of Justice. It is alternatively known as qualification in French law.
In all lawsuits involving conflict of laws, questions of procedure as opposed to substance are always determined by the lex fori, i.e. the law of the state in which the case is being litigated.
In the conflict of laws, the validity and effect of a contract with one or more foreign law elements will be decided by reference to the so-called "proper law" of the contract.
In conflict of laws, the choice of law rules for tort are intended to select the lex causae by which to determine the nature and scope of the judicial remedy to claim damages for loss or damage suffered.
Conflict of laws in the United States is the field of procedural law dealing with choice of law rules when a legal action implicates the substantive laws of more than one jurisdiction and a court must determine which law is most appropriate to resolve the action. In the United States, the rules governing these matters have diverged from the traditional rules applied internationally. The outcome of this process may require a court in one jurisdiction to apply the law of a different jurisdiction.
In conflict of laws, the term lex loci is a shorthand version of the choice of law rules that determine the lex causae.
The Convention on the Law Applicable to Contractual Obligations 1980, or the "Rome Convention", is a measure in private international law or conflict of laws which creates a common choice of law system in contracts within the European Union. The convention determines which law should be used, but does not harmonise the substance. It was signed in Rome, Italy on 19 June 1980 and entered into force in 1991.
Double actionability is a doctrine of private international law which holds that an action for an alleged tort committed in a foreign jurisdiction can be successful in a domestic court only if it would be actionable under both the laws of the home jurisdiction and the foreign jurisdiction. The rule originated in the controversial case of Phillips v Eyre (1870) LR 6 QB 1.
The Rome I Regulation is a regulation which governs the choice of law in the European Union. It is based upon and replaces the Convention on the Law Applicable to Contractual Obligations 1980. The Rome I Regulation can be distinguished from the Brussels Regime which determines which court can hear a given dispute, as opposed to which law it should apply. The regulation applies to all EU member states except Denmark, which has an opt-out from implementing regulations under the area of freedom, security and justice. The Danish government planned to join the regulation if a referendum on 3 December 2015 approved converting its opt-out into an opt-in, but the proposal was rejected. While the United Kingdom originally opted-out of the regulation, it subsequently decided to opt in.
The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the nation's Constitution, which prescribes the foundation of the federal government of the United States, as well as various civil liberties. The Constitution sets out the boundaries of federal law, which consists of Acts of Congress, treaties ratified by the Senate, regulations promulgated by the executive branch, and case law originating from the federal judiciary. The United States Code is the official compilation and codification of general and permanent federal statutory law.
South African administrative law is the branch of public law which regulates the legal relations of public authorities, whether with private individuals and organisations or with other public authorities, or better say, in present-day South Africa, which regulates "the activities of bodies that exercise public powers or perform public functions, irrespective of whether those bodies are public authorities in a strict sense." According to the Constitutional Court, administrative law is "an incident of the separation of powers under which the courts regulate and control the exercise of public power by the other branches of government."
Cox v Ergo Versicherung AG[2014] UKSC 22 is a judicial decision of the Supreme Court of the United Kingdom relating to the conflict of laws and the assessment of damages following a road traffic accident.
Soldiers, Sailors, Airmen and Families Association v Allgemeines Krankenhaus Viersen GmbH[2022] UKSC 29, [2022] 3 WLR 1111 is a judicial decision of the Supreme Court of the United Kingdom in relation to the proper law to govern contribution claims in cross-border torts.