1.0 Introduction.
The private International Law is the branch of law
which deals with the cases where some relevant facts have geographical connection
creating foreign element. The term Renvoi is the French word means send back, this the doctrine is the part of English law.
The concept Renvoi however, in the conflict of laws or private international
law constitutes legal principles and rules governing international private
relations. In conflict of laws, Renvoi is subset of the choice of law rules and
it is potentially to be applied whenever a forum court is directed to consider
the law of another state.[1]
2.0 The
distinction between Single and Total (Double) Renvoi or Foreign court
theory.
Single Renvoi is the second application in solving disputes
in the form of the doctrine of renvoi ,the first solution being application of
internal laws. The single doctrine of renvoi is to the effect that if a judge
in a certain country ‘Q’ is referred by his own rule of the choice of law to
the law of country ‘Z’, but the rule of choice of law in ‘B’ refers that case
to the law of ‘Q’, so the judge in ‘Q’ must apply the internal laws of his own
country.
For instance;
X, a British subject, dies intestate, domicile in
Italy and an English court is required to decide how his movable properties in
England are to be distributed. Therefore if the case of this nature happen, the
English court is supposed by its own
private international law to refer the question of distribution to Italy as
being the law of the deceased’s domicil.
Foreign court theory or total
renvoi or English doctrine of
renvoi, it is the third solution which demands a judge, who is referred by
his own law to the legal system of foreign country, must apply whatever law a
court in that foreign country would apply if it were in the hearing of the
case.[2]
If this third solution is adopted, it is the vital to realize that the decision
given by the English judge will depend on whether the doctrine of single renvoi
is recognized by the particular foreign law to which he is referred. The
doctrine requires or demands that an English judge whose matter is referred to
legal system of foreign country must apply
whatever law a court in that country if were in the hearing of the case;
for instance where the question concerning the testamentary disposition of a
British subject, dies domiciled in Belgium ,leaving assets in English arises. A
Belgium judge dealing with the matter would be referred by his rule of private
international law to English law, but he would find that the case was remitted
to him by English law.
The evidence should therefore be adduced in the
English proceedings to show that the Belgium judge would do. The judge may
accept t he remission and apply his own internal law as a single renvoi, as
stated in Forgo, a Bavarian national, died intestate in France, where he had
lived since the age of five years, the question before the court was whether
his property in France should be distributed according to internal law of
France or of Bavaria. Closed relatives were entitled to succeed by Bavarian
law, under the France law the property passed to the France government to
exclusion of closed relatives. The court in France accepted the remission and
applied the succession provisions of France law. The doctrine of renvoi appears
in simplest form and it can be easily described as remission especially where
reference made is in form of ‘A’ to ‘B’ and from ‘B’ to ‘C’.
The particular
doctrine of renvoi, whether in the form of remission or transmission
which is called partial or single is not part of English law, only doctrine of
double or total renvoi is the English law. This is to say that, if English law
refers a matter to the law of the domicil and the matter remits the question to
the English law, the judge does not automatically accept the remission and
apply English internal law. The doctrine of double renvoi is repudiated in
Italy but recognized in France. Therefore, if the issue in England is the
intrinsic validity of a will made by British subject domiciled in Italy, the
judge, the will make an imaginary judicial journey to Italy, with the following
ground;
·
That an Italian judge would refer the matter to English law,as being
national law of the propositus. English law requires to Italian law as being
the law of his domicil.
3.0 Application of the doctrine.
The doctrine normally is applied to the isssues of
formal and intrinsic validity of the wills, cases of intestated succession,
legitimate by subsequent marriage,capacity to marry and formal marriage.
4.0 The objectives to the doctrine.
The total renvoi does not necessarily ensure
uniformity decisions. That, the main objective of single or total renvoi is to
ensure that the same decision is given on the disputed facts, irrespective the
country in which the case is heard. The uniformity will be attained if the law
of the domicil repudiates the doctrine of total renvoi. The doctrine of total
renvoi is not recognized by those countries not belongs to commonwealth.
The doctrine also has second obstacle to uniformity of
decision in case of the foreign court doctrine does not require, that is to say
does not allow English judge to deal
with matter.
The second objective is the doctrine of total renvoi
signifies the virtual capitulation of the English rules for choice of law. That
the doctrine involve nothing less than a substitution of the foreign for
English choice of law rules.
The third objective of the total renvoi doctrine is
difficulty to apply. Because, the
doctrine obliges the English judges to ascertain as fact the precise decision
that the foreign court would give. This situation may confront two difficulty
things; that the judge must ascertain what view prevails in the foreign country
with regard to the doctrine of single renvoi. Secondly, where the foreign rule
for the choice of law selects the national law of the propositus, the judge
must ascertain what is meant by national law.
5.0 Conclusion.
Therefore, the chosen of law that emerges from
application of the doctrine depends on inter alia on whether the doctrine of
single renvoi is recognized by the law of the domicil. Where the court of the
domicil accept the remission made to it, would determine the case according to
its own internal law, thus the doctrine of renvoi is used by the court to
protect the rights of foreign individuals on matters of contract of marriage,
succession of movable properties left by deceased person died intestate while
living in a foreign country, it also protect business contra among the foreign
nationals.
BIBLIOGRAPHY.
Chashire &
North’s (1999), Private International
Law, 13th edition, Butterwoths,London.
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