Renvoi
by Kurt Siehr
1. Terminology and history
The term renvoi (in French originally only référence) has been coined in private international law (PIL) as a reference of a very special kind, ie as a reference of foreign conflicts rules back to the law of the forum or the reference of foreign conflicts rules to the law of a third state (renvoi, renvoi au premier degré et renvoi au second degré, Rückverweisung and Weiterverweisung, rinvio indietro and rinvio oltre, terugverwijzing and verderverwijzing, reenvío de primer grado or reenvío de retorno and reenvío de segundo grado or reenvío ulterior). The foreign conflicts rules referring back or to the law of a third state apply because a conflicts rule of the forum refers to them. Such a reference is also called a reference to conflicts law (IPR-Verweisung) or total reference (Gesamtverweisung). Such a reference is either provided by statute (eg Art 4(1) EGBGB, Art 13 Italian PIL-Statute, § 5(1) and (2) Austrian PIL-Statute, and Art 14 Swiss PIL-Statute), completely excluded (Art 32 Greek Civil Code) or it is taken from the meaning of the provision’s reference to foreign law.
The problem of renvoi was encountered in the Forgo Affair (Recueil Sirey 1882, I, 393 and Bernard Ancel and Yves Lequette (eds), Grands arrêts de la jurisprudence française de droit international privé (3rd edn, 1998) No 8), in which, on 22 February 1882, the French Cour de cassation accepted the renvoi of Bavarian law of the Bavarian citizen Xavier Forgo, deceased in France, to the law of his last domicile in France and hence could apply French succession law to the estate of Mr Forgo. Even before the Forgo Affair, English and German courts had accepted a renvoi of foreign law to the law of nationality of a deceased person: Collier v Rivas (1841) 163 ER 608; Oberappellationsgericht Lübeck 21 March 1861 (Krebs v Rosalino), Seufferts Archiv 14 (1861) 164. Academic discussion of the problem of renvoi, however, started only with the Forgo Affair (see Maximilien Philonenko).
2. Function
By applying foreign private international law, two objectives are to be reached. First, international harmony of decisions is to be achieved by reaching the same decision in the home forum as would have been reached by the foreign court. Secondly, the local court is quite willing to apply local law which applies in case of renvoi because local law can be applied quickly and easily, overall efficiency is promoted. Often it is forgotten that international harmony of decisions can only be achieved if the relevant jurisdictions apply renvoi differently. If every jurisdiction granted preference to the foreign jurisdiction referred to, it would lead to an endless back and forth without any definite reference to the governing law. Only one country is allowed to be so polite and grant foreign law the preference, not both of them. Therefore, renvoi is not a problem which can be internationalized in every country the same way.
3. National attitudes towards renvoi
Much can be said about renvoi. This entry will limit itself to four questions. (1) Is there any need for renvoi at all? (2) In which cases should renvoi be followed? (3) How to react in cases of a foreign reference to PIL? (4) Is there any ‘hidden’ renvoi?
a) National jurisdictions may decline to accept any renvoi at all (eg Art 32 Greek Civil Code), to pay respect to renvoi in principle (eg Art 4(1)(1) EGBGB, § 5(1) and (2) Austrian ABGB) or to pay regard to renvoi in selected circumstances only (eg Art 13 Italian PIL Statute; Art 14 Swiss PIL Statute). Which may be the correct solution depends on various circumstances. Even in European countries which generally accept renvoi, this acceptance is no longer possible under European PIL. It is submitted that the correct solution should be more nuanced, accepting renvoi in some cases and disregarding renvoi in other cases.
b) In general, renvoi may be either a reference back to the lex fori (Rückverweisung) or a reference to the law of a third country (Weiterverweisung). If a statute does not provide otherwise and refers to foreign PIL (the reference to foreign law also comprises foreign PIL), also renvoi to the law of a third country has to be accepted. The exclusion of a Weiterverweisung (eg Art 14(2) Swiss PIL Statute for matters of personal status) cannot be justified—except for the purpose of simplifying the difficult application of foreign law—.
Quite another question is whether partial renvoi should be accepted. This question has to be answered if foreign PIL—different from the lex fori which treats the entire estate of a deceased person alike—distinguishes between movables and immovables and refers back only with regard to immovable property located in the forum state. Most countries accept such a partial renvoi and do not reject it as it has been done by the Spanish Corte Suprema (Trib. Sup. Sala 1.a, 15 November 1996, Rep. Aranzadi Jurispr. 1996, col 8212). The court ruled that a partial renvoi violates Spanish public policy, ie unitary treatment of the entire estate.
Finally, it has to be asked whether renvoi should be accepted even if the acceptance of renvoi may be unreasonable. This may be the case with respect to favourable references of local PIL, eg such as if Art 19(1) EGBGB in favorem legitimitatis refers to several laws alternatively and one of them would refer back or further to another one of these laws. In this case renvoi would diminish the choice of several laws, and thus German PIL excludes such a renvoi if a ‘renvoi contradicts the very meaning of the reference’ (by German PIL to foreign law) if, eg, the renvoi diminishes the number of laws to be applied under German PIL alternatively.
c) The most difficult problem is how to react to a foreign renvoi to the PIL of the forum state. This may cause an ‘endless oscillation backwards and forwards from one law to the other’ (Luxmore, J, in In re Ross [1930] 2 Ch 377, 389). Austrian and German PIL provide in § 5(2) sentence 1 PIL Statute and Article 4(1) sentence 2 EGBGB that such renvoi will be stopped and treated as renvoi to the substantive law of the forum state. This sort of ‘selfish’ renvoi cannot be approved. If a state is not interested in having its substantive law applied and therefore refers to foreign law as the governing law, it should leave it to foreign law to decide what to do with renvoi to foreign PIL. This attitude is called by English courts ‘total’ or ‘double renvoi’ (sometimes also called ‘foreign court theory’). English courts leave it to the governing foreign law to accept renvoi, to stop it (as in Austria and Germany) or to reject it: see In re Annesley [1926] 1 Ch 692 (Ch); In re O’Keefe [1940] 1 Ch 124 (Ch). The German Council of PIL once proposed a similar statutory provision which, however, never became law: ‘If foreign law is applicable, the court has to decide the case the same way as the foreign court would have to decide.’ (Vorschläge und Gutachten zur Reform des deutschen internationalen Personen-, Familien- und Erbrechts (1981) 15).
d) The last question is whether there is a ‘hidden’ renvoi if the governing foreign law does not expressly refer back to the lex fori but instead refers to the forum state as the state of jurisdiction and makes clear that it would agree to the application of the lex fori by the competent court of the forum state. It is controversial whether in such cases (eg a reference of German PIL to US American divorce law for the divorce of a couple domiciled in Germany) renvoi should be accepted or whether—and better—a subsidiarily applicable reference to the lex domicilii should be assumed instead of the primarily applicable lex patriae.
4. Renvoi and treaties
The Hague Conference on PIL has tried to solve the problem of renvoi in the so-called Renvoi Convention. However, the Convention of 15 June 1955 on the Regulation of Conflicts between the National Law and the Law of Domicile has never entered into force. Since then the problem has been solved case-by-case in single Conventions. From this pragmatic attitude two points may be observed.
a) Conventions on the applicable law normally exclude renvoi. This is done either by an express reference to the substantive law of a country (loi interne, internal law) or by expressly excluding all PIL norms of the governing law (eg Art 17 Hague Convention on Trusts of 1985; Art 17 Hague Convention on Succession of 1989; Art 19 Hague Convention on the Protection of Adults of 2000). This seems to be correct. If the states parties apply the same law, they achieve harmony between them and it is only in relation to third states that disharmony may result.
b) Only in very few cases is renvoi mentioned in treaties. One example is presented by the identical Arts 2(1) 2 of the Conventions of 1930 and 1931 for the Settlement of Certain Conflicts of Laws in Connection with Bills of Exchange and Promissory Notes and with Cheques. The capacity to draw bills of exchange or promissory notes is governed, according to Art 2(1)1, by the national law of the person drawing these instruments, and sentence 2 adds: ‘If this national law provides that the law of another country is competent in the matter, this latter law shall be applied.’
5. Renvoi and European PIL
To date, European PIL has expressly excluded renvoi (Art 24 Rome II Regulation 864/2007; Art 20 Rome I Regulation 593/2008). In the forthcoming regulations on the international law of maintenance, family matters and succession, it is doubtful whether this exclusion can be upheld. It has to be taken into consideration that the law of non-Member States may also be applied under these forthcoming regulations and that these states—because European PIL is not applicable in them—do not accept themselves as bound by European PIL. In such cases the attitude of non-Member States could be ignored and foreign substantive law could be applied without respecting its desire not to be applied. This decision, however, would be rather unpractical. Why should we apply American law to the immovable estate of the deceased person domiciled in the United States if under the American conflicts law the European lex rei sitae governs the immovable estate? In such cases, renvoi by a non-Member State should be considered.
6. Taking account of foreign PIL in other cases
Renvoi is not the only case in which foreign PIL has to be considered. There are three other situations in which there is no renvoi, but foreign PIL nonetheless has to be taken into account.
a) Vested rights (droits acquis, wohlerworbene Rechte) vested in a foreign country are recognized even if the governing law changes after the vesting. But whether a right has really vested can only be decided by taking into account foreign PIL. Consider the following example: A valuable fresco stolen in Cyprus is sold by a German seller to an American art dealer in the airport of Geneva (Switzerland) before being transported to Indianapolis (United States). The superintendent of antiquities of Cyprus subsequently asks the American art dealer to return the fresco to Cyprus. The art dealer defends herself by claiming that she acquired the fresco bona fide in Switzerland and that this vested right survived the transport of the fresco to Indiana. But she did not acquire a vested right in Switzerland because Swiss law does not apply to res in transitu (goods in transit) according to Art 101 Swiss PIL Statute. The law of destination applies and, as the destination of the fresco was Indiana, she did not acquire the fresco because Indiana does not recognize bona fide purchases: Autocephalous Greek Orthodox Church of Cyprus v Goldberg, 717 F Supp 1374, 1394 (SD Ind 1989). If the art dealer had acquired the fresco bona fide somewhere abroad and had taken it to some other place, her right in the objects would have vested and been protected according to the law of the place of final destination: Winkworth v Christie’s Manson and Woods [1980] 2 WLR 937 (ChD).
b) If a preliminary question has to be answered according to foreign law, it is necessary to refer also to foreign PIL. In succession cases it may need to be decided whether a child is the recognized child of the deceased person. If the child had previously been recognized in a foreign country, the validity of the recognition needs to be decided according to the law governing the recognition under the PIL of the foreign country.
c) A reference en bloc (Blockverweisung) is a reference to the competent jurisdiction including PIL. Such a reference may apply in adoption cases. For example, Art 77(2) Swiss PIL Statute requires that in addition to the domiciliary law of the adopting parents, the law of domicile of the child to be adopted needs to be checked in order to prevent the child being seriously disadvantaged by adoption. In this case, PIL at the domicile of the child also has to be consulted in order to find out whether the child is at risk by the adoption.
d) In case of the application of a special or general evasion clause it may be helpful to also consult PIL of the primarily applicable law in order to find out whether this law seeks application or not. If, for instance, the law of the common foreign national law of spouses is applicable for their divorce (Art 61(2) Swiss PIL Statute) and there are doubts whether this law is the law of the closest connection, one needs to inspect the PIL of that foreign law and determine whether this law really demands application. If this is not the case, the application of the evasion clause is made easier.
e) According to Art 3a(2) German EGBGB, foreign law needs to be consulted if property is located abroad and subject to special rules of law. Regularly these special rules are those of PIL which apply the lex rei sitae to certain pieces of property. If such a reference by foreign PIL is accepted, the rule applies: law for single objects constitutes an exception to the law of the entire property. By doing so, German courts—in deviation from the German law of the entire estate—apply foreign PIL to certain immovable parts of the estate if such rules envision application at the place of location. Such a special rule in favour of foreign PIL is hardly acceptable.
7. Future of renvoi
As PIL will become more unified in the coming years, less attention will be paid to renvoi. In the future renvoi will be applied to cases in which the law of third states (who are not members of the EU) is applicable, namely states which are not taking part in the European unification of PIL. In these cases it may be advisable to leave it to the foreign law to decide the case according to the practice of double renvoi.
Literature
Maximilien Philonenko, L’Affaire Forgo (1874–82); Hans Lewald, ‘La théorie du renvoi’ (1929-IV) 29 Recueil des Cours 515, 620; ‘Contribution à l’étude des sources du droit international privé français’ (1932) 59 Journal du droit international (Clunet) 281–322; Georgios S Maridakis, ‘Le renvoi en droit international privé’ (1957) 47 II Annuaire de l’Institut de Droit International 1, 53; John Delatre Falconbridge, Essays on the Conflict of Laws (2nd edn. 1964) 137 ff; Gerte Reichelt, Gesamtstatut und Einzelstatut im IPR (1985); Paolo Picone, ‘La méthode de la référence à l’ordre juridique compétent en droit international privé’ (1986-II) 197 Recueil des Cours 229–419; Jean Georges Sauveplanne, ‘Renvoi’ in IECL III (1990) ch 6; Toshiyuki Kono, ‘Renvoi in Japan–Doctrine, Precedent and Some Critical Comments’ (1992) 35 Japanese Annual of International Law 62, 77; Hans Kuhn, Der Renvoi im internationalen Erbrecht der Schweiz (1998); Kurt Lipstein, ‘The Taking into Consideration of Foreign Private International Law’ (1999) 68 I Annuaire de l’Institut de Droit International 13, 53; Kurt Siehr, ‘Renvoi: A Necessary Evil or is it Possible to Abolish it by Statute?’ in Ian Fletcher, Loukas Mistelis and Marise Cremona (eds), Foundations and Perspectives of International Trade Law (2001) 193; Rainer Hausmann in von Staudingers Kommentar zum Bürgerlichen Gesetzbuch (13th edn, 2003) Art 4 EGBGB; Weizuo Chen, Rück- und Weiterverweisung (Renvoi) in staatsvertraglichen Kollisionsnormen (2004).
