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Encyclopedia > Renvoi
Conflict of laws
Preliminary matters
Characterisation  · Incidental question
Renvoi  · Choice of law
Conflict of laws in the U.S.
Public policy  · Hague Conference
Definitional elements
State  · Jurisdiction  · Procedure
Forum non conveniens  · Lex causae
Lex fori  · Forum shopping
Lis alibi pendens
Connecting factors
Domicile  · Lex domicilii
Habitual residence
Nationality  · Lex patriae
Lex loci arbitri  · Lex situs
Lex loci contractus
Lex loci delicti commissi
Lex loci solutionis  · Proper law
Lex loci celebrationis
Choice of law clause
Forum selection clause
Substantive legal areas
Status  · Capacity  · Contract  · Tort
Marriage  · Nullity  · Divorce
Get divorce  · Talaq divorce
Property  · Succession
Trusts
Enforcement
Enforcement of foreign judgments

In Conflict of Laws, renvoi (from the French, meaning "send back") is a 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. Image File history File links Scale_of_justice. ... Conflict of laws, or private international law, or international private law is that branch of international law and interstate law that regulates all lawsuits involving a foreign law element, where a difference in result will occur depending on which laws are applied as the lex causae. ... In Conflict of Laws, characterisation is the second stage in the procedure to resolve a lawsuit involving a foreign law element. ... In the Conflict of Laws, an incidental question is a legal issue that arises in connection with the major cause of action in a lawsuit. ... Choice of law is a concept within the field of the conflict of laws, relating to relationships between different nations, and in the United States between individual states. ... The choice of law rules in the Conflict of Laws in the United States have diverged from the traditional rules applied internationally. ... Public policy or ordre public is the body of fundamental principles that underpin the operation of legal systems in each state. ... The Hague Conference on Private International Law is the preeminent organisation in the area of private international law. ... For the purposes of Public International Law and Private International Law, a state is a defined group of people, living within defined territorial boundaries and subject, more or less, to an autonomous legal system exercising jurisdiction through properly constituted courts. ... In law, jurisdiction (from the Latin jus, juris meaning law and dicere meaning to speak) is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area... In all lawsuits involving Conflict of Laws, questions of procedure as opposed to substance are always determined by the lex fori, i. ... Forum non conveniens is Latin for inconvenient forum or inappropriate forum. ... The lex causae is the Latin term for law of the case in the Conflict of Laws. ... Lex fori is a private international law doctrine meaning the law of the court in which proceedings are being conducted. ... Forum shopping is the informal name given to the practice adopted by some plaintiffs to get their legal case heard in the court thought most likely to provide a favourable judgment, or by some defendants who seek to have the case moved to a different court. ... The principle of lis alibi pendens applies both in municipal, public international law, and private international law to address the problem of potentially contradictory judgments. ... In Conflict of Laws, domicile (termed domicil in the U.S.) is the basis of the choice of law rule operating in the characterisation framework to define a persons status, capacity and rights. ... The lex domicilii is the Latin term for law of the domicile in the Conflict of Laws. ... In the Conflict of Laws, habitual residence is the standard civil law connecting factor used to select the lex causae in cases characterised as status, capacity and family law. ... In English usage, nationality is the legal relationship between a person and a country. ... The term lex patriae is Latin for the law of nationality in the Conflict of Laws which is the system of public law applied to any lawsuit where there is a choice to be made between several possibly relevant laws and a different result will be achieved depending on which... The lex loci arbitri is the Latin term for law of the place where arbitration is to take place in the Conflict of Laws. ... The term lex situs (Latin) refers to the law of the place in which property is situated for the purposes of the Conflict of laws. ... The lex loci contractus is the Latin term for law of the place where the contract is made in the Conflict of Laws. ... The lex loci delicti commissi is the Latin term for law of the place where the tort was committed in the Conflict of Laws. ... The lex loci solutionis is the Latin term for law of the place where relevant performance occurs in the Conflict of Laws. ... The Doctrine of the Proper Law is applied in the choice of law stage of a lawsuit involving the Conflict of Laws. ... The lex loci celebrationis is the Latin term for law of the place where the marriage is celebrated in the Conflict of Laws. ... A choice of law clause in a contract is one whereby the parties to that contract specify which law (i. ... A forum selection clause is a clause in a contract in which the parties agree that any litigation resulting from that contract will be brought in a specific forum. ... The capacity of both natural and artificial persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will. ... In the Conflict of Laws, the validity 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 rule for tort is the proper law. ... In Conflict of Laws, the issue of marriage has assumed increasing public policy significance in a world of increasing multi-ethnic, multi-cultural community existence. ... In Conflict of Laws, the issue of nullity (known as annulment in the United States) in Family Law inspires a wide response among the laws of different states as to the circumstances in which a marriage will be valid, invalid or null. ... In modern society, the role of marriage and its termination through divorce have become political issues. ... For the religious process, see Get (divorce document) A get or gett (גט) is the Jewish form of divorce which, when one is available in the state of residence, is supervised by a Beth Din (בית דין), a rabbinical court. ... In Islamic Law, there are two forms of divorce known as the talaq and its less well-regulated version of triple talaq. ... In Conflict of Laws, the subject of Property Law follows the terminology of the civil law systems out of Comity. ... In the Conflict of Laws, the subject of succession deals with all procedural matters relevant to estates containing a foreign element whether that element consists of the identity of the deceased, those who may inherit or the location of property. ... In Conflict of Laws, the Hague Convention on the Law Applicable to Trusts and on Their Recognition was concluded on 1 July 1985 and entered into force 1 January 1992. ... In the Conflict of Laws, issues relevant to the enforcement of foreign judgments are frequently regulated by bilateral treaty or multilateral international convention to facilitate the reciprocal recognition and enforcement of judgments between states. ... Private International Law, International Private Law, or Conflict of Laws is that branch of law regulating all lawsuits involving a foreign law element where a difference in result will occur depending on which laws are applied as the lex causae. ... Choice of law is a concept within the field of the conflict of laws, relating to relationships between different nations, and in the United States between individual states. ... A trial at the Old Bailey in London as drawn by Thomas Rowlandson and Augustus Pugin for Ackermanns Microcosm of London (1808-11). ... For the purposes of Public International Law and Private International Law, a state is a defined group of people, living within defined territorial boundaries and subject, more or less, to an autonomous legal system exercising jurisdiction through properly constituted courts. ...

Contents

The procedure for conflict cases

  1. The court must first decide whether it has the jurisdiction to hear the case (which will involve addressing the question of whether the plaintiff is attempting to manipulate the judicial system by forum shopping).
  2. Characterisation. The court must analyse 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.
  3. The court will then apply the choice of law rules. In a limited number of cases, usually involving Family Law issues, an incidental question can arise which will complicate this process.

In law, jurisdiction (from the Latin jus, juris meaning law and dicere meaning to speak) is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area... A plaintiff, also known as a claimant or complainer, is the party who initiates a lawsuit (also known as an action) before a court. ... Forum shopping is the informal name given to the practice adopted by some plaintiffs to get their legal case heard in the court thought most likely to provide a favourable judgment, or by some defendants who seek to have the case moved to a different court. ... In Conflict of Laws, characterisation is the second stage in the procedure to resolve a lawsuit involving a foreign law element. ... Choice of law is a concept within the field of the conflict of laws, relating to relationships between different nations, and in the United States between individual states. ... Family Law was a television drama starring Kathleen Quinlan as a divorced lawyer who attempted to start her own law firm after her lawyer husband took all their old clients. ... In the Conflict of Laws, an incidental question is a legal issue that arises in connection with the major cause of action in a lawsuit. ...

Discussion

To limit the damage that would result from forum shopping, it is desirable that the same law is applied to achieve the same result no matter where the case is litigated. The system of renvoi, which literally means "send back", 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, self-evidently, 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 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. 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. Thus, equality of outcome is always achieved so long as the competing laws operate different systems. Some early French authorities support this approach (e.g. Forgo's Case (1883) and Souli'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 revoi 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 so 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 in exactly the same way that 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.


Application of renvoi

Because the doctrine is considered difficult and its results are sometimes unpredictable, its application has generally been limited to:

  • the validity of wills and intestate succession; and
  • retrospective legitimation by the marriage of the natural parents.

Although there are indications in some states that it might also apply to two issues in family law, namely the capacity to marry and the formal validity of marriage. This article or section does not cite its references or sources. ... Family Law was a television drama starring Kathleen Quinlan as a divorced lawyer who attempted to start her own law firm after her lawyer husband took all their old clients. ...


In the European Union, its application is expressly excluded in contract cases under 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) Private International Law (Miscellaneous Provisions) Act 1995.


In Australia, however, 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 wrong or lex loci delict 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: // Tort is a legal term that means civil wrong, as opposed to a criminal wrong. ... The Law of China, for most of the history of China, was rooted in the Confucian philosophy of social control. ...


"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. The Statute of Grand Duchy of Lithuania A statute is a formal, written law of a country or state, written and enacted by its legislative authority, perhaps to then be ratified by the highest executive in the government, and finally published. ...


This decision has received strident criticism by Martin Davies: Neilson v Overseas Projects Corporation of Victoria Limited: Renvoi and Presumptions about Foreign Law (2006) 30(1) Melbourne University Law Review 244, 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: Ignored No More: Renvoi and International Torts Litigated in Australia (2005) 1(1) Journal of Private International Law 35, Elizabeth Crawford: The Uses of Putativity and Negativity in the Conflict of Laws (2005) 54 International and Comparative Law Quarterly 829, and Mary Keyes: The Doctrine of Renvoi in International Torts: Mercantile Mutual Insurance v Neilson (2005) 13 Torts Law Journal 1. The University of Melbourne, located in Melbourne, in Victoria, is the second oldest university in Australia (the University of Sydney is the oldest). ...


The main difficulties

There are three main difficulties in cases where renvoi may be an issue:

  1. It gives undue weight to the evidence of the experts on foreign laws.
  2. The reference to the conflicts system used in other laws may reveal differences that would have arisen in characterisation or in the choice of law rules to be applied. If these differences would lead to onward transmissions, the forum court will follow the references into third (or further) legal systems. This is unpopular because it requires the parties and the court to consider evidence of multiple legal systems.
  3. There may be an "inextricable circle" between sets of laws using either single or double renvoi systems which do not have adequate safeguards built in to guarantee when to stop accepting remissions.

For the mathematical concept, see characterization (mathematics). ... Choice of law is a concept within the field of the conflict of laws, relating to relationships between different nations, and in the United States between individual states. ...

Notes

  1. ^ see Amin Rasheed Shipping Corporation v. Kuwait Insurance Co [1984] 1 A.C. 50 (H.L.)

  Results from FactBites:
 
Chap. 3 -- Jurisdiction (712 words)
This problem is dealt with through the conflict of laws principal of renvoi.
Renvoi deals with a jurisdiction's choice, when another jurisdiction's laws is applicable, to use the other jurisdiction's "whole" law (everything including conflict of laws and procedural rules) or only the other jurisdiction's "internal" law (substantive law only).
If the renvoi is accepted and the foreign law indicates that its rules apply, the first jurisdiction must apply those laws; if they indicate dismissal, then the court must dismiss.
  More results at FactBites »

 
 

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