The Concept Of Renvoi ( Conflict Of Laws)

The Doctrine Of Renvoi

The Doctrine of Renvoi is a legal doctrine which applies when a court is faced with a conflict of law and must consider the law of another state, referred to as private international law ("PIL") rules. This can apply when considering foreign issues arising in succession planning and in administering estates.

The word “Renvoi” comes from the French “send back” or “return unopened”. The “Doctrine of Renvoi” is the process by which the court adopts the rules of a foreign jurisdiction with respect to any conflict of law that arises. The idea behind the doctrine is that it prevents forum shopping and the same law is applied to achieve the same outcome regardless of where the case is actually dealt with. The system of Renvoi attempts to achieve that end.

Single Renvoi

Countries such as Spain, Italy, and Luxembourg operate a “Single Renvoi” system. This system refers to another jurisdiction’s choice of law rules. Where the matter arises in a jurisdiction such as Spain, Italy or Luxembourg (A), those jurisdictions will consider whether their own domestic law is the applicable law or if the applicable law is that of another jurisdiction (B). Where B’s rules might return the issue to A, (the original forum court), the court will accept the first remission and apply its own domestic laws.

For example, where a testator, who was a French national, was habitually resident in England but domiciled in Spain, dies leaving moveable property in Spain, the court may need to consider which legislative forum will apply to deal with the property under succession laws.

In this case, Spain being the law of the forum, i.e. where the property is situate, applies the law of the deceased’s nationality, namely France and applies French law. French law observes the law of the deceased’s habitual residence which is England. England however examines the domicile of the deceased, which is Spain.

As two transfers took place, (from Spain to France and from France to England), Spain, operating the Single Renvoi system, will not accept it back. Accordingly, the Spanish court being the law of the forum, will apply the law where it was last left in the chain of referral i.e. with the law of England and Wales.

Where both countries operate with either no renvoi system or single renvoi systems, there is a potential problem.

Double Renvoi

Unlike Spain, some countries such as England and France currently accept renvoi twice. However in this system there can never be more than two remissions.

For example, lets consider the following case whereby a testator, an Irish national, habitually resident in Spain but domiciled in Italy, dies leaving moveable property in France.

France, being the law of the forum (where the assets are situate) will examine the law of the deceased’s habitual residence Spain and applies Spanish law. Spanish law observes the law of the deceased’s nationality which is Italy. Italy, as a jurisdiction that only operates a single renvoi system, will not accept the Double Renvoi and it is likely that in this case France will apply Italian law.

No Renvoi

Countries such as Denmark, Greece and the US do not accept renvoi.

Brussels IV – The EU Regulation On Succession (No 650/2012)

This new EU Succession law, effective from 17 August 2015 attempts harmonisation of succession for all member states in determining the forum that applies to Succession law. Ireland, UK and Denmark have opted out of this regulation, although interestingly the regulation will still have an affect on how these countries will deal with signatory states and how signatory states will deal with the non signatory states.

In relation to the Doctrine of Renvoi, the regulation attempts to provide that in all EU Member States (other than Ireland, UK and Denmark), the doctrine is abolished other than in the case of third party states. It also provides for testators to designate the law of their nationality as applying to the whole of their estate. The regulation will only affect deaths on or after 17 August 2015 however an individual may elect the law under their will now to apply after that date.