The doctrine of renvoi is deployed as a way of deciding a case when referred to a foreign law by

a choice of law rule. What ‘law’ is meant? Merely domestic law rules of that law? Or, the rules
of that law including its choice of law rules? Where the conflict of laws rules of the foreign law
are included in ‘law’, a renvoi (passing on or passing back) to another law may occur. Renvoi is
therefore a technique for solving problems which arise out of differences between the connecting
factor used by English law and that of the law to which the English connecting factor leads
e. Areas of application

English courts have employed renvoi in one form or another in respect of: (a) formal validity of
wills of movables (and immovables):118 see Collier v Rivaz; 119 Re Fuld (No. 3); 120 but now
the Wills Act 1963, s. 1 provides seven systems of law (and eight in the case of immovables) by
any one of which a will can be formally valid, the rules are the domestic rules thereof;121 (b)
essential or material validity of wills of movables: see Re Trufort; 122 Re Annesley; 123 Re Ross;
124 (c) succession to movables on intestacy: see Re O’Keefe; 125 (d) essential validity of wills of
movables: see Re Ross; 126 (e) almost certainly, succession to immovables on intestacy; (f)
possibly, title to movables by transfer inter vivos. This was suggested by Slade J in Winkworth v
Christie, Manson and Woods Ltd, 127 however, it was not adopted in the more recent cases
culminating in Blue Sky Ltd v Mahan Air128 and Dornoch Ltd v Westminster International BV;
129 (g) almost certainly, title to immovables inter vivos

Time factor

Here, the questions which may arise are whether the new rule affects transactions or
relationships already entered into or a status already acquired, and whether the new rule
entirely supersedes the old one.134 Or a change may take place in the connecting factor, for
example a change in a person’s domicile or in the situs of movable property. Some connecting
factors, such as the situs of immovable property or the place of the events making up a tort,
cannot change – though the law might. Changes in connecting factor will not be considered
further; it is a factual matter which once determined merely requires the identification of the
content of the applicable law at that time. The more difficult problems arise in respect of
changes in the lex causae; for example, Utopian law, the law governing a subsisting contract, is
altered by legislation, or a marriage which was formerly formally invalid by the law of the place
of celebration is subsequently validated by or under that law. The problem has always existed,
but did not attract much learned or judicial attention.135 Examples concern the following: (a) in
tort: in Phillips v Eyre, 136 an act which was a tort in Jamaica was later justified by Jamaican
legislation, thus making the act not actionable as a tort in England; (b) in contract: in R v
International Trustee for the Protection of Bondholders A/G, 137 a provision of New York law,
the applicable law, which rendered a gold clause in a contract void

(a) Difficulty in Ascertaining Foreign Law's Stance on Renvoi

The argument here is that it can be really hard to figure out if a foreign legal system uses renvoi
or not. This is because foreign legal systems can have complex or unclear rules regarding
whether they accept renvoi (which is essentially the doctrine where a court may apply a foreign
law but refer to the law of the foreign jurisdiction to determine which law applies). Although it
could be argued that determining foreign law is always difficult, renvoi specifically seems to
present particularly tricky cases.

(b) Surrendering to Foreign Law

Critics argue that by applying renvoi, an English court is essentially surrendering its own
authority, because it ends up applying foreign laws instead of English conflict-of-laws rules.
However, this criticism can be rebutted by saying that this is only the case because the English
conflict-of-laws rule points to a foreign law, such as that of a fictional country (Utopia or
Ruritania). The real issue isn't that English courts are surrendering power but that the law they
are supposed to apply leads them to foreign law.

(c) Complications with Nationality as a Connecting Factor

Here, the issue arises when the law refers to the person's nationality to determine which legal
system should apply. In federal states or countries like the UK (which has multiple legal
systems), a person's nationality might be tied to several potential legal systems, creating
confusion. For example, in the case of Re O’Keefe, the court had trouble because the woman's
nationality referred to the British Empire, but she had lived in Italy, not Ireland. The problem
wasn't renvoi itself, but the fact that different parts of the British Empire had different legal
systems, which caused complications in identifying the relevant law.

(d) Endless Loop of Renvoi

One of the biggest criticisms of renvoi is that it can create an infinite loop. For instance, if
French courts applied the English conflict-of-laws rule and English courts applied French law,
this could theoretically continue forever (a never-ending back-and-forth). While this seems like
an absurd scenario, the idea is that if multiple legal systems kept using renvoi, there would need
to be some pragmatic solution to stop the endless loop. In reality, courts may simply apply what
they see as the most practical solution in these cases.

(e) Re Annesley

In the case of Re Annesley, it is argued that the decision would have been the same if the court
had just applied French law directly, rather than going through renvoi. This is true, but the
passage goes on to point out that other cases (Re Ross, Re O'Keefe, etc.) wouldn't have worked
out the same way. The process of renvoi is more significant in some cases, and its application
can lead to different results depending on the foreign law being applied.

Conclusion:

These critiques highlight the challenges and complications of using renvoi in private
international law. While some of these issues are theoretical, they point to the difficulty of
determining which law should apply when multiple jurisdictions are involved. Courts have tried
to balance these concerns by sometimes rejecting renvoi or finding pragmatic solutions,
especially in commercial cases.

arguments in favor of renvoi

(a) Sophistication and Avoiding Unjust Results

Some legal scholars, like Professor Briggs, support renvoi because it can make choice-of-law
rules more refined and sophisticated. Normally, choice-of-law rules are somewhat blunt,
meaning they can result in decisions that don’t always make sense or are unjust. By applying
renvoi, courts can avoid these unfair results. This process helps ensure that decisions aren’t made
simply based on the forum (the country where the case is being heard), and it helps avoid
situations where a party might unfairly "shop" for a forum that would give them the best
outcome.

(b) Towards Uniformity and Avoiding Conflicting Decisions

Although renvoi doesn’t necessarily guarantee that the same decision will be reached across
different jurisdictions (which some critics say it doesn’t), it does tend to push toward more
uniform decisions. This is because without renvoi, the outcome could depend on where the
lawsuit is filed. For instance, if a case is filed in England versus a fictional place like Ruritania,
there could be two conflicting decisions—one from the English court and one from the
Ruritanian court. By using renvoi, courts can avoid this conflict and align their decisions more
closely.

(c) Protecting Legitimate Expectations

Another argument for renvoi is that it helps protect people’s legitimate expectations. In cases like
Collier v Rivaz and Re Ross, applying renvoi allowed courts to respect what individuals might
have reasonably expected in terms of their rights or status. For example, in cases involving
succession or family law, renvoi can help ensure that the wishes of the deceased or the legal
status of an individual are properly recognized, rather than leading to an unjust result. However,
in some cases, like Re Annesley, renvoi might not reflect what the deceased intended, but
generally, it can help meet a person’s legitimate expectations (such as recognizing a child as
legitimate, as in Re Askew).

(d) Renvoi and Immovable Property (Real Estate)

Finally, there’s general agreement that renvoi should be applied when the legal question involves
immovable property (like land or real estate). For example, if Utopian law states that someone’s
entitlement to Utopian land depends on their status under English law (like who inherits the
property), it wouldn’t make sense for an English court to ignore this and apply Utopian law as if
it only follows Utopian rules. This would be pointless because the English court wouldn’t be
able to enforce the Utopian decision. By applying renvoi, courts ensure that the correct legal
system’s rules are followed and are practical to enforce.

Summary:

Proponents of renvoi argue that it adds sophistication to legal decisions, helps avoid unjust
outcomes, encourages uniform decisions across jurisdictions, protects people's reasonable
expectations, and is particularly useful in property law cases involving immovable property. In
short, it’s seen as a way to ensure fairness, consistency, and practical enforcement of decisions
across different legal systems.