Civil Law Conflict of Laws

DEC 20
Posted by Magz

CONFLICTS OF LAWS; Definition:

1.
That part of the law of each state or nation which determines whether, in dealing with a legal
situation, the law or some other state or nation will be recognized, given effect, or applied (16
Am Jur, 2d, Conflict of Laws, 1).
2.
That part of municipal law of a state which directs its courts and administrative agencies,
when confronted with a legal problem involving a foreign element, whether or not they should
apply a foreign law/s (Paras).
DISTINGUISHED FROM PUBLIC INTERNATIONAL LAW
BASIS

Nature

Persons
involved

CONFLICT OF LAW

LAW OF NATIONS

Municipal in character

International in character

Dealt with by private

individuals; governs
individuals in their private
transactions which involve a
foreign element

Sovereign states and other

entities possessing
international personality, e.g.,
UN; governs states in their
relationships amongst
themselves

Transactions
involved

Private transactions between

private individuals

Generally affected by public

interest; those in general are of
interest only to sovereign
states

Remedies
and
Sanctions

Resort to municipal tribunals

May be peaceful or forcible

Peaceful: includes diplomatic

negotiation, tender & exercise of
good offices, mediation, inquiry &
conciliation, arbitration, judicial
settlement by ICJ, reference to
regional agencies
Forcible: includes severance of
diplomatic relations, retorsions,
reprisals, embargo, boycott, nonintercourse, pacific blockades,
collective measures under the UN

Charter, and war.

SOURCES:
Direct:
1. Constitutions
2. Codifications
1.
2.
3.
4.

Special Laws
Treaties and Conventions
Judicial Decisions
International Customs

Indirect:
1. Natural moral law
1.

Work of writers

TERMS:
Lex Domicilii law of the domicile; in conflicts, the law of ones domicile applied in the choice of
law questions
Lex Fori law of the forum; that is, the positive law of the state, country or jurisdiction of whose
judicial system of the court where the suit is brought or remedy is sought is an integral part.
Substantive rights are determined by the law where the action arose (lex loci) while the
procedural rights are governed by the law of the place of the forum (lex fori)
Lex Loci law of the place
Lex Loci Contractus the law of the place where the contract was made or law of the place
where the contract is to be governed (place of performance) which may or may not be the same
as that of the place where it was made
Lex Loci Rei Sitae law of the place where the thing or subject matter is situated; the title to
realty or question of real estate law can be affected only by the law of the place where it is
situated
Lex Situs law of the place where property is situated; the general rule is that lands and other
immovables are governed by the law of the state where they are situated
Lex Loci Actus law of the place where the act was done
Lex Loci Celebrationis law of the place where the contract is made
Lex Loci Solutionis law of the place of solution; the law of the place where payment or
performance of a contract is to be made
Lex Loci Delicti Commissi law of the place where the crime took place
Lex Mereatoria law merchant; commercial law; that system of laws which is adopted by all
commercial nations and constitute as part of the law of the land; part of common law

Lex Non Scripta the unwritten common law, which includes general and particular customs and
particular local laws
Lex Patriae national law
Renvoi Doctrine doctrine whereby a jural matter is presented which the conflict of laws rules of
the forum refer to a foreign law which in turn, refers the matter back to the law of the forum or a
third state. When reference is made back to the law of the forum, this is said to be remission
while reference to a third state is called transmission.
Nationality Theory by virtue of which the status and capacity of an individual are generally
governed by the law of his nationality. This is principally adopted in the RP
Domiciliary Theory in general, the status, condition, rights, obligations, & capacity of a person
should be governed by the law of his domicile.
Long Arm Statutes Statutes allowing the courts to exercise jurisdiction when there are minimum
contacts between the non-resident defendant and the forum.
WAYS OF DEALING WITH A CONFLICTS PROBLEM:
1.
Dismiss the case for lack of jurisdiction, or on the ground of forum non-conveniens
DOCTRINE OF FORUM NON CONVENIENS the forum is inconvenient; the ends of justice would be
best served by trial in another forum; the controversy may be more suitably tried elsewhere
1.
Assume jurisdiction and apply either the law of the forum or of another state
1.
i.
A specific law of the forum decrees that internal law should apply
1.
APPLY INTERNAL LAW forum law should be applied whenever there is good reason to do so;
there is a good reason when any one of the following factors is present:
Examples:

Article. 16 of the Civil Code real and personal property subject to the law of the country
where they are situated and testamentary succession governed by lex nationalii

Article 829 of the Civil Code makes revocation done outside Philippines valid according to law
of the place where will was made or lex domicilii

Article 819 of the Civil Code prohibits Filipinos from making joint wills even if valid in foreign
country
1.
ii. The proper foreign law was not properly pleaded and proved
NOTICE AND PROOF OF FOREIGN LAW

As a general rule, courts do not take judicial notice of foreign laws; Foreign laws must be
pleaded and proved

Effect of failure to plead and prove foreign law (3 alternatives) of the forum court:
(a) Dismiss the case for inability to establish cause of action
(b) Assume that the foreign law of the same as the law of the forum
(c) Apply the law of the forum
1.

The case falls under any of the exceptions to the application of foreign law

Exceptions to application of foreign law:

(a) The foreign law is contrary to the public policy of the forum
(b) The foreign law is procedural in nature
(c) The case involves issues related to property, real or personal (lex situs)
(d) The issue involved in the enforcement of foreign claim is fiscal or administrative
(e) The foreign law or judgment is contrary to good morals (contra bonos mores)
(f) The foreign law is penal in character
(g) When application of the foreign law may work undeniable injustice to the citizens of the
forum
(h) When application of the foreign law might endanger the vital interest of the state
2.

APPLY FOREIGN LAW when properly pleaded and proved

THEORIES WHY FOREIGN LAW SHOULD BE GIVEN EFFECT

1.
Theory of Comity foreign law is applied because of its convenience & because we want to
giveprotection to our citizens, residents, & transients in our land
2.
Theory of Vested Rights we seek to enforce not foreign law itself but the rights that have
been vested under such foreign law; an act done in another state may give rise to the existence
of a right if the laws of that state crated such right.
3.
Theory of Local Law adherents of this school of thought believe that we apply foreign law not
because it is foreign, but because our laws, by applying similar rules, require us to do so; hence,
it is as if the foreign law has become part & parcel of our local law
4.
Theory of Harmony of Laws theorists here insist that in many cases we have to apply the
foreign laws so that wherever a case is decided, that is, irrespective of the forum, the solution
should be approximately the same; thus, identical or similar solutions anywhere & everywhere.
When the goal is realized, there will be harmony of laws
5.
Theory of Justice the purpose of all laws, including Conflict of Laws, is the dispensing of
justice; if this can be attained in may cases applying the proper foreign law, we must do so
Rules on Status in General
Factual Situation

Point of Contact

Beginning of personality of natural

person

National law of the child (Article 15,

CC)

Ways & effects of emancipation

Same

Age of majority

Same

Use of names and surnames

Same

Use of titles of nobility

Same

Absence

Same

Presumptive death & survivorship

Lex fori (Article 43, 390, 391, CC;

Rule 131 5 [jj], Rules of Court)

Rules on Marriage as a Contract

FACTUAL SITUATION

Celebrat
ed
Abroad

Between Filipinos

Lex loci celebrationis is without

prejudice to the exceptions under
Articles 25, 35 (1, 4, 5 & 6), 36, 37
& 38 of the Family Code
(bigamous & incestuous marriages)
& consular marriages

Between Foreigners

Lex loci celebrationis EXCEPT if

the marriage is:
1. Highly immoral (like
bigamous/ polygamous
marriages)
2. Universally considered
incestuous (between brothersister, and ascendantsdescendants)

Mixed

Apply 1 (b) to uphold validity of

marriage

Between Foreigners
Celebrat

POINT OF CONTACT

National law (Article 21, FC)

PROVIDED the marriage is not
highly immoral or universally

considered incestuous)
ed in RP

Mixed

National law of Filipino (otherwise

public policy may be militated
against)

Marriage by proxy (NOTE: a

marriage by proxy is considered
celebrated where the proxy appears

Lex loci celebrationis (with

prejudice to the foregoing rules)

Rules on Marriage as a Status

FACTUAL SITUATION

POINT OF CONTACT

Personal rights & obligations between

husband & wife

National of husband(Note: Effect of

subsequent change of nationality:
1. If both will have a new
nationality the new one
2. If only one will change the
last common nationality
3. If no common nationality
nationality of husband at the
time of wedding)

Property relations bet husband & wife

National law of husband without

prejudice to what the CC provides
concerning REAL property located in
the RP (Article 80) (NOTE: Change of
nationality has NO EFFECT. This is
the DOCTRINE OF
IMMUTABILITY IN THE
MATRIMONIAL PROPERTY
REGIME)

Rules on Property
FACTUAL SITUATION

POINT OF CONTACT

Real property

Lex rei sitae (Article 16, CC)

Exception

Successional rights

National law of decedent (Article 16

par. 2, CC)

Capacity to succeed

National law of decedent (Article.

1039)

Contracts involving real property

The law intended will be the proper

which do not deal with the title

thereto

law of the contract (lex loci

voluntantis orlex loci intentionis)

Contracts where the real property is

given as security

The principal contract (usually loan)

is governed by the proper law oft the
contract (lex loci voluntatis or lex
loci intentionis)NOTE: the mortgage
itself is governed by lex rei sitae.
There is a possibility that the
principal contract is valid but the
mortgage is void; or it may be the
other way around. If the principal
contract is void, the mortgage will
also be void (for lack of proper cause
or consideration), although by itself,
the mortgage could have been valid.

Tangible personal property (choses in possession)

1

In General

Lex rei sitae (Article. 16, CC)

Exceptions: same as those for real

property

EXCEPTION: same as those for real

property EXCEPT that in the
example concerning mortgage, the
same must be changed to pledge of
personal property)

Means of Transportation

Vessels

Law of the flag (or in some cases,

place of registry)

Other means

Law of the depot (storage place for

supplies or resting place)

Things in transitu (these things have

a changing status because they move)
Loss, destruction, deterioration
Validity & effect of the seizure of the
goods

Law of the destination (Article. 1753,

CC)
Locus regit actum (where seized)
because said place is their
temporarysitus

Disposition or alienage of the goods

FACTUAL SITUATION

Lex loci volutantis or lex loci

intentionis because here there is a
contract

POINT OF CONTACT

INTangIBLE PERSONAL PROPERTY

(CHOSES IN ACTION)
1

Recovery of debts or involuntary

assignment of debts (garnishment)

Where debtor may be effectively

served with summons (usually the
domicile)

Voluntary assignment of debts

Lex loci voluntatis or lex loci

intentionis(proper law of the contract)

Other Theories:
1. National law of the debtor or creditor
2. Domicile of the debtor or creditor
3. Lex loci celebrationis
4. Lex loci solutionis
3

Taxation of debts

Domicile of creditor

Administration of debts

Lex situs of assets of the debtor (for

these assets can be held liable for the
debts)

Negotiability or non-negotiability of
an instrument

The right embodied in the instrument

(for example, in the case of a Swedish
bill of exchange, Swedish law
determines its negotiability)

Validity of transfer, delivery or

negotiation of the instrument

In general, situs of the instrument at

the time of transfer, delivery or
negotiation

Effect on a corporation of the sale of

corporate shares

Law of the place incorporation

Effect between the parties of the sale

of corporate shares

Lex loci voluntatis or lex loci

intentionis (proper law of the contract)
for this is really a contract; usually
this is the place where the certificate is
delivered)

Taxation on the dividends of corporate

shares

Law of the place of incorporation

Taxation on the income from the sale

of corporate shares

Law of the place where the sale was

consummated

Franchises

Law of the place that granted them

Goodwill of the business & taxation

thereto

Law of the place where the business is

carried on

Patents, copyrights, trademarks, trade

names

In the absence of a treaty, they are

protected only by the state that granted
themNOTE: foreigners may sue for
infringement of trademarks and trade
names in the RP ONLY IF Filipinos
are granted reciprocal concessions in
the state of the foreigners

1
0

11

1
2

1
3

Wills, Succession & Administration of Conflict Rules

FACTUAL SITUATION

POINT OF CONTACT

Extrinsic Validity of Wills

1

Made by an alien abroad

Lex nationalii OR lex domicilii OR RP

law (Article 816, CC), OR lex loci
celebrationis(Article 17(1))

Made by a Filipino abroad

Lex nationalii OR lex loci

celebrationis(Article 815)

Made by an alien in the RP

FACTUAL SITUATION

Lex nationalii OR lex loci

celebrationis(Article 817)

POINT OF CONTACT

Extrinsic Validity of Joint Wills (made in

the same instrument)
1

Made by Filipinos abroad

Lex nationalii (void, even if valid

where made) (Article 819)

Made by aliens abroad

Valid if valid according to lex

domicilii orlex loci
celebrationis (Article 819)

Made by aliens in the RP

Lex loci celebrationis therefore void

even if apparently allowed by Article
817 because the prohibition on joint
wills is a clear expression of public
policy

Intrinsic Validity of Wills

Lex nationalii of the deceased

regardless of the LOCATION &
NATURE of the property (Article 16
(2))

Capacity to Succeed

Lex nationalii of the deceased not of

the heir (Article 1039)

Revocation of Wills
1

If done in the RP

Lex loci actus (of the revocation)

(Article. 829)

If done OUTSIDE the RP

2

1.

By a NON-DOMICILIARY

Lex loci celebrationis (of the making

of the will, NOT revocation), OR lex
domicilii(Article 829)

1.

By a DOMICILIARY of the RP

Lex domicilii (RP law) OR lex loci

actus (of the revocation) (Article 17)

Probate of Wills Made Abroad

If not yet probated abroad

Lex fori of the RP applies as to the

procedural aspects, i.e., the will must
be fully probated here & due execution
must be shown

If already probated abroad

Lex fori of the RP again applies as to

the procedural aspects; must also be
probated here, but instead of proving
due execution, generally it is enough to
ask for the enforcement here of the
foreign judgment on the probate abroad

Executors and Administrators

1

Where appointed

Place where domiciled at death or

incase of non-domiciliary, where assets
are found

Powers

Co-extensive with the qualifying of the

appointing court powers may only be
exercised within the territorial
jurisdiction of the court
concernedNOTE: these rules also apply
to principal, domiciliary, or ancillary
administrators & receivers even in nonsuccessive cases

Rules on Obligation and Contracts

FACTUAL SITUATION

Formal or Extrinsic Validity

POINT OF CONTACT

Lex loci celebrationis (Article 17 {1})

Exceptions
1.

1.

Alienation & encumbrance of

property
Consular contracts

Capacity of Contracting Parties

Lex situs (Article 16 [1])

Law of the RP (if made in RP
consulates)
National law (Article 15) without

prejudice to the case of Insular

Government v Frank 13 P 236, where
the SC adhered to the theory of lex loci
celebrationis
Exception
Alienation & encumbrance of property
Intrinsic validity (including interpretation of
the instruments, and amt. of damages for
breach)

Lex situs (Article 16 {1})

Proper law of the contract lex
contractus(in the broad sense),
meaning the lex voluntatis or lex loci
intentionis

Other Theories are:

1. Lex loci celebrationis (defect: this makes possible the evasion of the national
law)
2. Lex nationalii (defect: this may impede commercial transactions)
3. Lex loci solutionis (law of the place of performance) (defect: there may be
several places of performance
4. Prof Minors solution:
5. Perfection lex loci celebrationis
6. Cause or consideration lex loci considerations
7. Performance lex loci solutionis (defect: this theory combines the defect of the
others)
Rules on Torts
FACTUAL SITUATION

POINT OF CONTACT

Liability & damages for torts in

generalNOTE: The locus delicti (place of
commission of torts) is faced by the
problem of characterization. In civil law
countries, the locus delicti is generally
where the act began; in common law
countries, it is where the act first became
effective

Lex loci delicti (law of the place where

the delict was committed)NOTE: liability
for foreign torts may be enforced in the
RP if:
1. The tort is not penal in character
2. If the enforcement of the tortious
liability wont contravene our
public policy
3. If our judicial machinery is
adequate for such enforcement

Rules on Crimes
FACTUAL SITUATION

Essential elements of a crime and penalties

POINT OF CONTACT

Generally where committed (locus

regit actum)
Theories as to what court has jurisdiction:
1. Territoriality theory where the crime was committed
2. Nationality theory country which the criminal is citizen or a subject
3. Real theory any state whose penal code has been violated has jurisdiction,
where the crime was committed inside or outside its territory
4. Protective theory any state whose national interests may be jeopardized has
jurisdiction so that it may protect itself
5. Cosmopolitan or universality theory state where the criminal is found or which
has his custody has jurisdiction
6. Passive personality theory the state of which the victim is a citizen or subject
has jurisdiction
NOTE: In the RP, we follow the territoriality theory in general; exception: Article 2, RPC, stresses
the protective theory

The locus delicti of certain crimes

1

Frustrated an consummated, homicide,

murder, infanticide & parricide

Where the victim was injured (not

where the aggressor wielded his
weapon)

Attempted homicide, etc.

Where the intended victim was (not

where the aggressor was situated) so
long as the weapon or the bullet either
touched him or fell inside the territory
where he was

Bigamy

Where the illegal marriage was

performed

Theft & robbery

Where the property was unlawfully

taken from the victim (not the place to
which the criminal went after the
commission of the crime)

Estafa or swindling thru false

representation

Where the object of the crime was

received (not where the false
representations were made)

Conspiracy to commit treason,

rebellion, or seditionNOTE: Other
conspiracies are NOT penalized by our
laws

Where the conspiracy was formed (not

where the overt act of treason, rebellion
or sedition was committed)

Libel

Where published or circulated

Continuing crime

Any place where the offense begins,

exists or continues

Complex crime

Any place where any of the essential

elements of the crime took place

Rules on Juridical Persons

FACTUAL SITUATION

POINT OF CONTACT

Corporations

3.

Powers and liabilities

General rule: the law of the place of

incorporationEXCEPTIONS:
1. For constitutional purposes
even of the corporation was
incorporated in the RP, it is nor
deemed a Filipino corporation &
therefore cant acquire land,
exploit our natural resources, 7
operate public utilities unless
60% of capital if Filipino owned
2. For wartime purposes we
pierce the corporation veil & go
to the nationality of the
controlling stockholders to
determine if the corporation is
an enemy (CONTROL TEST)

Formation of the corporation

(requisites); kind of stocks, transfer of
stocks to bind the corporation,
issuance, amount & legality &
dividends, powers & duties of
members, stockholders and officers

Law of the place of incorporation

Validity of corporate acts & contracts

(including ultra vires acts)

Law of the place of incorporation &

law of the place of performance (the
act or contract must be authorized by
BOTH laws)

Right to sue & amenability to court

processes & suits against it

Lex fori

Manner & effect of dissolution

Law of the place of incorporation

provided that the public policy of the
forum is not militated against

Domicile

If not fixed by the law creating or

recognizing the corporation or by any
other provision the domicile is where
it is legal representation is established
or where it exercises its principal
functions (Article. 15)

Receivers (appointment & powers)

Principal receiver is appointed by the

courts of the state of incorporation;
ancillary receivers, by the courts of
any state where the corporation has
assets (authority is CO-EXTENSIVE)
w/ the authority of the appointing
court

NOTE: Theories on the personal and/or governing law of corporations:

1. Law of the place of incorporation (this is generally the RP rule)
2. Law of the place or center of management (center for administration or siege
social) (center office principle)
3. Law of the place of exploitation (exploitation centre or siege d exploitation)
Partnerships
The existence or non-existence of legal
personality of the firm; the capacity to
contract; liability of the firm & the
partners to 3 persons

The personal law of the partnership,

i.e., the law of the place where it was
created (Article 15 of the Code of
Commerce) (Subject to the exceptions
given above as in the case of corps.)

Creation of branches in the RP;

validity & effect of the branches
commercial transaction; & the
jurisdiction of the court

RP law (law of the place where

branches were created) (Article 15,
Code of Commerce)

Dissolution, winding up, &

termination of branches in the RP

RP law (Article 15, Code of

Commerce)

Domicile

If not fixed by the law creating or

recognizing the partnership or by any

rd

other provision the domicile is where

it is legal representation is established
or where it exercises its principal
functions (Article. 15)

Receivers
Foundations (combination of capital
independent of individuals, usually not for
profit)

RP law insofar as the assets in the RP

are concerned can be exercised as such
only in the RP
Personal law of the foundation (place
of principal center of administration)

Reference:
Civil Law (Conflict of Laws) Memory Aid
Ateneo Central Bar Operations 2001

Renvoi Doctrine (Referring Back)

Persons And Family Relations

Renvoi takes place when the conflicts rule of the forum makes a reference to a foreign law, but
the foreign law is found to contain a conflict rule that returns or refers the matter back to the law
of the forum (Remission).

The Significance Of Renvoi To Private International Law

Particularly As Regards Partial And Total Renvoi
Conflict of Law Group 4

By: Olorunfemi Eyitayo Temilolu, Oladapo Olayemi, Liman Ayodele Bilikis

and Joseph Naomi Ojunugwa
The law of every state includes the domestic of influential or internal
law which applies to local situation, and a body of law which is applicable in a
situation involving a foreign element. The latter is commonly referred to as

the conflict of law rules, where a foreign state is the place of domicile or the place
where the contract was made or lex situs of the property. The conflict of laws rule of
the forum may refer the law of the foreign state or its conflict of law rules. If it
refers to its conflict of law rules then the court of the forum has accepted what is
known
as
the
doctrine
of
Renvoi.
NB If you want to start a blog, here's the best guide to use.
Definition of Renvoi
Renvoi is the legal doctrine that applies when there is a conflict of laws in a
particular court case.
The term renvoi is gotten from the French and literally means to send back or
return unopened where the significant elements in the case are divided between
two countries e.g. France and England, such a case is the case of conflict of law for
any court litigating. For example, when a British citizen living in France dies
intestate the problem of renvoi arises whenever the rule of the conflicts of law of
France refers to the law of foreign country, but the conflict rule of the law of the
foreign country would have referred the question to the law of the first country or
the law of some 3rd country.
Where a matter before a court has an international element, the court will initially
apply Private international law rules of the jurisdiction it is located to decide which
law applies. If As law is the applicable law, the court will apply As domestic law.
However, if the applicable law is that of another jurisdiction (B) the court must
decide whether to apply Bs domestic law or Bs including Bs own PIL rules. If the
court decides on Bs Private international Law rules, and Bs Private International
Law rules refer back to the law of A or refers to a 3 rd jurisdiction this reference is
called Renvoi
The doctrine Renvoi was given initial impetus in the Forgo V. Administration de
domain which was decided by the French cour de cassation. It regards the estate of
a Bavarian national who had settled in France acquiring a legal domicile there and
then died intestate in france leaving moveable properties there. The French court
referred the question of the distribution of his intestate estate to Bavarian Law. It
was found that under the Bavarian law of succession to moveable property
(intestate state) was governed by the law of the place (lex Situs). The French
accepted this remission to its law and applied the French internal law.
In the case of Estate of fuld, decd (NO 3) v. Hartley 1966 WLR 71. The judge
found that the deceased domiciled in Germany and accordingly referred the matter
to German law whose conflict rule referred this to the law of nationality that is
Ontario Canada. The will was formerly valid under the Ontario domestic or internal
law but not under German internal law. However, the judge for the transmission to
the law of Ontario including its conflict rules. Fortunately, German law accepted
backward reference and therefore German conflicts rules becomes inoperative in
the end, the judge pronounced against the will.
SIGNIFICANCE OF RENVOI

Suppose an English forum is faced with a question about the capacity to marry of
a French national who is domiciled in Italy. It would refer to the Italian domiciliary
law. An Italian court, dealing with the same case, would refer to the French national
law. If Italian law and French law happen to differ on the particular capacity in
dispute, the results would be different. Should it just be accepted as a fact of legal
life that the result of a case will depend on
the place of litigation and leave lawyers to take it on board when advising their
clients just an international dimension to a fact already known? In addition,
suppose an English court has to consider the case of X, an Englishman, who dies
domiciled in Arcadia, and a question arises as to the beneficial distribution of his
movable property.
1.

Partial or single, imperfect, receptive or continental renvoi: The doctrine of

partial renvoi involves a reference to the conflicts rules of the chosen system, which
results in either transmission to another legal system or remission to the forums
law. So that, if we refer to the example concerning Arcadia, then the meaning of the
law of Arcadia is the law of Arcadia, including its conflict rules but minus its conflict
rules applying renvoi, if such exist. So, in relation to the case of the intestate dying
domiciled in Arcadia, if the relevant Arcadian conflicts rule referred to English law as
the law of the nationality, then, if the English court accepts the remission and
decides the case in accordance with English law, this would be an example of single
or partial renvoi. Thus in Casdagli V. Casdagli, held that we are ready to apply the
law of nationality closer to remit the, matter to us, we would apply the same law as
would be applied to our subject. Single renvoi has however being expressly
repudiated by English court in Re askew (1930) 2ch 259. The operation of
single renvoi can involve the reference of the issue to a third system (that is,
transmission). This was the case in the original example of the Italian domiciled
French national where Italian conflict law would refer to the lex patriae French law.
This is an example of transmission. Now, an English court could go along with this if
it wished, though the consequences of doing so, while it would produce consistency
between the decision of the English court and the Italian court in this case, would
not produce any overall consistency, as we would just be substituting one system of
conflict law for should.

2.

Total or double Renvoi or foreign court doctrine: In this scenario the forum court
considers that it is sitting as the foreign court and would decide the matter as the
foreign court would. It involves not just account of the conflict rules of the lex
causae but also its renvoi doctrine. Presently only English courts uses this
approach. Thus in the above scenario total renvoi would do the following:

A) The English court would determine the lex causae. Thus in the above example the
English court would refer his marital capacity Italian law his lex domicili
B) The English court then applies court then applies the conflict rules of the lex
causae. If the above scenario, it would find that an Italian court could refer back to
English law as lex patriae
C) As English law of conflict also refers to Italian law, to avoid toing and froing the
English court would look to Italian law to see whether they would accept renvoi. If
they would, the English court would accept English domestic law.

It was first recognized in English court in Re Annesly per russle J. (1926)1CH

692 An English woman left a will according to English law she died domiciled in
france but according to French law, she had not acquired a French domicile because
of failure to comply with reg formalities. The testamentary dispositons were valid in
English law but invalid by French law because she had failed to leave 2/3 rd of her
property to her children. It was that French law would apply because
a)

The domicile of the deceased would be determined by English law, the deceased
was domiciled in france

b)

But French law would refer to the UK patriae

c)

The rules of English private international law would refer to French law.

d)

The French legal system accepts the doctrine of single revoi thus the French judge
would have accepted the remission. thus the English court should decide as the
French court would.
Another example is the case of Re Ross(1930) 1 CH 376 Lukmore J.
where an English woman died domicile in Italy leaving the will of moveable property
in English and Italy immovable property in Italy. By English law succession is
governed by Italian law as lex domicilii the will was partly invalid by Italian law. The
Italian choice of law under being founded on nationality would have referred to
English law. Luxmore J, concluded that the Italian court would reject renvoi and
simply apply English law.
In Nelson V. Over sea projects corporation of Victoria ltd. The high court
of Australia law of the 3 possible solution (single, rejecting the renvoi & double
renvoi) he majority adopted the double renvoi approach without committing itself to
do same in similar cases. In Collier v. Rivaz: A person named Ryan, a British citizen
died domiciled in Belgium. He left certain testamentary papers executed in
accordance with the requirement of Belgian local law. The court of England decided
to decide the matter as if it were sited in Belgium. The judge sir I.T Jenner, on proof
that by Belgium law the validity of will made by foreigners not legally domicile in
Belgium was governed by the law of their own country. He stated that the court
sitting here to determine it must consider itself sitting in Belgium under the
particular circumstance of this case.
SCOPE OF THE DOCTRINE.
It is somewhat instructive to observe that the English doctrine of renvoi has hitherto
been restricted in its practical application, to questions of formal and intrinsic
validity of will, to issues of intestate successions to movables and (as often claimed)
to questions of recognition of foreign divorce decrees. According to Cheshire, in the
countless cases dealing with such matter, as contracts, insurance, sales of movable
gifts inter vivo or mortis causae, mortgages, negotiable instruments, partnership,
dissolution of foreign Company and so on, the English courts. Renvoi has been
employed in cases

concerning the formal validity of wills, when referred to the law of a foreign country,
have always applied the internal law of that country as in Collier v. Rivaz. The
doctrine of renvoi has been used to legitimate an adulterine child, which would not
have been possible under English law at the time. In the sphere of family law, there
is some authority for the view that renvoi applies to formal validity of marriage and
it has, in the past, been employed in questions of capacity to marry, although
subsequent changes make this a precedent of limited value. The doctrine
of renvoi is not applied in the area of commercial law; a stipulation that a contract is
to be governed by the law of Arcadia is normally taken as a reference to the internal
law of Arcadia.
ADVANTAGES OF THE DOCTRINE RENVOI.
Not surprisingly, the doctrine of renvoi has it advocates and
opponents. Its advocates argue that by resorting to foreign choice of law rules, the
court avoids a foreign internal law that has no connection with the propositus.
Secondly, it is argued that it promotes the reasonable expectation of the
parties. It might be argued that this was the case in Re Annesly. However was not
the case in Re OKeefe.
Thirdly, it is argued that renvoi produces a degree of uniformity of
the decision, terms of the governing law at least, in cases where English choice of
law rules put the premium in this, that is, where the lex situs is applied on the basis
of effectiveness. Moreover, it is arguable that such degree of uniformity is not
achieved by the single renvoi doctrine. Against this, it must be observed that, in a
world in which different connecting factors are used, then such a degree of
uniformity is probably unattainable. Moreover, it is arguable that such a degree of
uniformity is not achieved by the single renvoi doctrine; if both country A and
country B adopt connecting factors of domicile and nationality respectively and then
both adopt the partial renvoi doctrine, then the result will differ according to where
the case is litigated. In respect of the total renvoi technique, while, in principle, it
should produce uniformity of decisions, it can, in practice, be applied only by one
country because, if the lex causae were also to apply it, then there would be no way
out of the revolving door. The experience since 1945 is that uniformity of decision
making is more likely to be achieved by the implementing of internationally agreed
conventions.
Advocates of doctrine of renvoi argue that the technique can be
manipulated to avoid applying an inappropriate public policy rules. Indeed, in the
earliest case of Colier v. Rivaz , its arguable that the learned judge was more
concerned with the public policy of seeking uphold testamentary dispositions that to
formulate any precise theory of Renvoi.
DISADVANTAGES OF THE DOCTRINE OF RENOI
It has been argued that the study of the cases indicate that English
court concludes by subordinating its own choice of law rules to those of another
country. Against this, however, it can be argued that this would not happen in those
case where the foreign rule offended some particular rule of public policy.

Secondly, its opponents argued that the application of the doctrine

required to familiarise himself with
a)

the foreign internal law

b)

the relevant choice of law rules

c)

The policy, if any of the foreign law towards the doctrine law towards the of single
renvoi. This limitation of the doctrine of renvoi is that it normally involves calling
detailed expert evidence as to the state of foreign law; normally, parties will seek to
avoid such a course.
Thirdly, the opponents of renvoi argued that having regard to the fact that
nationality is the connecting factor most connecting factor most commonly
employed in the civil law world, the English courts out itself in a position of being
unduly influenced by nationality when there is no concept of English nationality
having regard to the states of U.K.
CONCLUSION
As a purely practical it would seem that a court should not
undertake the onerous task of trying to ascertain how a foreign court would decide
the question, unless the situation is an exceptional one and the advantages of doing
so clearly outweigh the disadvantages. In most situations, the balance of
convenience surely lies in interpreting the reference to foreign law to mean its
domestic rules. Although the doctrine of renvoi was favoured by Westlake and dicey,
the great majority of writers, both English and foreign, are opposed to it. Lorenzen
said: notwithstanding the great authority of Westlake and dicey, it may reasonably
be hoped that, when the doctrine with all its consequences is squarely presented to
the higher English court, they will not hesitate to reject the decision of the courts
that have lent colour to renvoi in English law. There is no case which prevents the
court of Appeal (still less the House of Lords) from reviewing the whole problem, and
it is submitted that such a review is long overdue.

REFERENCES.

Substance and procedure in multistate trot litigation: Mary Keyes

Renvoi and presumption about foreign law: Martin Davies

Evidence Act 2011 CAP E.14

Themes on the conflicts of law: Prof I.O Agbede.

Conflicts of laws: John OBrien. Second edition.