1.Renvoi
When any choice-of-law rule applied to the circumstances of a given private international law case directs that the case be determined in accordance with the law,e.g.,of Japan,then the term “law of Japan” means usually the substantive law of Japan,but sometimes means any system of law which the Japanese court would hold applicable to the particular case,including its conflicts law system,i.e.,private international law system.This ambiguity in the expression “law of Japan” gives rise to the difficult problem of renvoi.
Briefly,in private international law,renvoi (from the French,meaning “send back” or “to return unopened”) is a subset of the choice of law rules and it may be applied whenever a forum court is directed to consider the law of another state.
The history of the renvoi doctrine is the history of a chapter of accidents.The doctrine originated as a device for mitigating the discrepancy between the law of domicile advocated by Story and the law of nationality by Mancini.It is believed that the earliest case where renvoi surfaced dates back to the 17th century in Rouen,France;1 however,the best known case is the Forgo litigation,which occupied the highest French court no less than three times2 and produced a landmark decision that has been a focal point of controversy ever since.3
François-Xavier Forgo,a citizen of Bavaria,died intestate in France,where he had lived for many years.He was survived by distant relatives whom Bavarian law entitled to succession rights,but who did not qualify under French law.According to the then prevailing French choice-of-law rule,if a decedent had failed formally to establish a domicile in France,his lex patriae controlled the succession to movables.In contrast,the Bavarian Civil Code provided for the application of the law of the decedent’s last domicile.Although the decedent had never compiled with the formalities necessary to acquire a legal domicile in France,Bavaria would have considered him a French domiciliary.The French court ruled that the Bavarian law referred to by French conflict rule included the Bavarian conflict rule,thus,by reference to Bavarian conflict rule,the French court applied French substantive law,thus escheating the estate in the absence of eligible beneficiaries.
Legal writers were quick to spot this issue,for which they coined such colorful expressions as “logical mirror cabinet” and “international law tennis (or “ping pong”).”4 As these terms suggest,academic does not like the renvoi doctrine despite the highest French court’s endorsement.As a matter of fact,because the doctrine is considered difficult and its results are sometimes unpredictable,its application has aroused hot debate and discussion.
1.1 Categories of Renvoi
Under the civil law doctrine,renvoi can be divided into three categories as follows:
(1) Remission (renvoi au premier degré).Remission arises whenever a rule of the conflict of laws refers to the “law” of a foreign country,but the conflict rule of the foreign country would have referred the question back to the “law” of the first country.
(2) Transmission (renvoi au second degré).Transmission arises whenever a choice-of-law rule refers to the “law” of a foreign country,but the conflict rule of the foreign country would have referred the question to the “law” of some third country.
(3) Indirect remission.Indirect remission occurs whenever a choice-of-law rule refers to the “law” of a foreign country,but the conflict rule of the foreign country refers the question to the “law” of a third country which then would have referred the question back to the “law” of the first country ultimately.
Pursuant to the English scholarship,there are two forms of renvoi: single or partial renvoi,and double or total renvoi.Under single or partial renvoi,the English court accepts the reference back from the country referred to by the English choice-of-law rule.For instance,if an English court is referred by its own choice-of-law rules to the law of country X,but the choice-of-law rules of X refer such case back to English law,then the English court must apply its own domestic law to the case.This form has been adopted in some continental countries,but it is not part of English law.
Under double or total renvoi,the English court,which is referred by its conflict rules to the foreign country,must apply the law which a court in that foreign country would apply if it were hearing the case.This means that the English court not only applies the foreign country’s choice of law rule,but also its doctrine of renvoi.The operation of this form of renvoi is illustrated in Re Annesley (1926),5 where the testatrix,a British national,died domiciled in France according to English law,but domiciled in England according to French law.Her will was valid by English domestic law,but invalid by French domestic law,for she had failed to leave two thirds of her property to her children.Under the English choice of law rule,the essential validity of the will was governed by French law as the law of her domicile at the time of her death.The court applied the total renvoi theory and held that the will was governed by French domestic law for the following reasons: the English court took the reference to French law to mean that the case must be decided as a French court would decide it.According to French conflict rules,the succession was governed by English law as the law of the testatrix’s nationality.However,a French court would apply the conflict rules of that law,that is,it would accept the renvoi,and apply French domestic law.
1.2 The Debate on Renvoi
Not surprisingly,the doctrine of renvoi has its advocates and opponents as well.6 Its advocates argue that the doctrine of renvoi is formulated to avoid the harshness of the traditional choice-of-law principles.In addition,it is argued that renvoi produces a degree of uniformity of decision,in terms of the governing law at least.A persuasive case for adopting renvoi is made by two law school professors in their text on conflict of laws:
“… A mechanical use of renvoi by all concerned jurisdictions could theoretically produce the problem of circularity.In this case,however,it is suggested that the forum accept the reference to its own law,refer no further,and apply its own law.This is the practice of most jurisdictions that do employ renvoi.This is good policy: the foreign conflict rule itself discloses a disinterest to have its own substantive law applied,indeed it recognizes the significance of the forum’s law for the particular case; the case therefore probably presents a ‘false conflict’.Furthermore,since uniformity in result would not otherwise be achieved in these circumstances,ease in the administration of justice is furthered by the application of forum law rather than by the use of foreign law.”7
Opponents are against the doctrine of renvoi who argue that there are at least four main difficulties in cases where renvoi may be an issue:(https://www.daowen.com)
First,it gives undue weight to the evidence of the experts on foreign laws.Second,the reference to the conflicts system used in other laws may reveal differences that would have arisen in characterization 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.Third,it must be observed that,in a world in which different connecting factors are used,such a degree of uniformity alleged by the advocates is probably unattainable.Fourth,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.
So far,much of discussion of the renvoi doctrine has proceeded on the basis that the choice lies in all cases between its absolute acceptance and its absolute rejection.The truth would appear to be that in some situations the doctrine is convenient and promotes justice,and that in others it is inconvenient and ought to be rejected.
In some cases the doctrine may be a useful means of arriving at a result which is desired for its own sake.For instance,if the court wishes to promote uniformity of distribution in a case of succession to movables where deceased left movables in two or more countries,or to avoid conflicts with the lex personalis in a case involving personal status,then the doctrine of renvoi may sometimes afford a useful device for achieving the desired result.
On the other hand,in all but exceptional cases the theoretical and practical difficulties involved in applying the doctrine outweigh any supposed advantages it may possess.What’s more,it has been argued that there is a general principle that renvoi does not apply in relation to what are termed “obligations” for the purposes of private international law.8 The rationale is that party autonomy and the doctrine of most significant relationship have been widely adopted in the field of obligations,and the application of renvoi would be contrary to these two modern doctrines: first,the parties,when choosing the applicable law for their contract,presumably only intend that the substantive law apply,therefore,the application of renvoi would be contrary to the expectation of the parties;9 second,if the law of one jurisdiction is determined as the applicable law on the ground that it has the most significant relationship with the dispute,its substantive law shall be applied directly.Under that circumstance,the application of its conflict rule may refer to another country which has less relationship with the dispute,thus the purpose of the doctrine of most significant relationship will be defeated.
1.3 Chinese Legislation and Judicial Practice
Chinese legislation was silent on renvoi till the enactment of the new Conflicts Act in 2010.According to the Opinions of the Supreme People’s Court on Implementing the General Principles of Civil Law,renvoi seems to have no place in China’s private international law,since Paragraph 2 of Article 178 provides that: “[U]pon handling the cases involving foreign elements,the People’s Court shall determine the applicable substantive law according to the regulations of Chapter VIII of the GPCL.”10 This provision indicates that when Chinese courts determine that the law of a certain state applies,they directly apply the “substantive law,” thus excluding the conflict rules of this foreign country.
What’s worth of our discussion is one reported case in China in which the doctrine of renvoi was alleged to be used,i.e.,Chancery plc.(United Kingdom) v.Sukissed Marine Co.Ltd.(Greece) decided by Guangzhou Maritime Court.11 In that case the parties agreed to be governed by Chinese law.However,Guangzhou Maritime Court referred to a Chinese conflict rule instead of Chinese substantive law.To be more specific,the Court referred to Article 271 of the Maritime Law of People’s Republic of China which provides that “mortgage of a ship shall be determined by the law of the flag state of the ship.” 12 The Court therefore determined that the substantive law of Cyprus was the applicable law according to the above conflict rule.
This decision was alleged to be based on the doctrine of renvoi.Nevertheless,it is submitted that Guangzhou Maritime Court erred in applying the doctrine in such fashion.First,according to its definition,renvoi occurs when the forum applies a foreign choice-of-law rule that selects law different from that chosen by the forum’s rule; however,in the present case,Guangzhou Maritime Court referred to the forum’s choice-of-law rule following the parties’ choice,[1]which,obviously,is illogical and inexplicable.Second,as mentioned above,under the Opinions of the Supreme People’s Court on Implementing the GPCL,the application of the renvoi is expressively excluded; therefore,it was unjustified that Guangzhou Maritime Court referred to a conflict rule rather than substantive rules even assuming,arguendo,that the application of conflict rule of the forum suited the definition of the doctrine of renvoi.As a mater of fact,since both the GPCL and the 1985 “Foreign Economic Contract Law” uphold party autonomy in contract involving foreign elements,Chinese law chosen by the parties in this case should be substantive Chinese law rules.Within such a setting,the reference to a Chinese conflict rule which directed to the law of another country was contrary to the expectation of the parties.
Hence,the author believes that the application of the Doctrine by Guangzhou Maritime Court in such fashion misused the concept of renvoi,deviated from the spirit of judicial interpretation,and frustrated the parties’ expectation as well.
While Chinese law,for a long period,contained no renvoi provision,the majority of Chinese scholars advocate adopting partial renvoi in certain cases,basically,in matters concerning personal or family status.Generally,the doctrine of renvoi is not applied in the area of obligation law.This point of view is fully reflected in the Model Law of Private International Law of People’s Republic of China,as Article 8 provides as follows:13
The applicable law provided under this law means the current,effective civil and commercial substantive law and does not include conflict rules unless otherwise provided by this law.In matters concerning personal or family status,a reference back (Renvoi) to the PRC law by foreign conflict rules shall be accepted.
For these reasons,Chinese conflicts scholars have been advocating that the Conflicts Act of 2010 should permit renvoi in certain fields,such as the matters concerning personal or family status,which,on the one hand,may expand the application of the lex fori,and promotes international decisional harmony on the other.
Nevertheless,the legislators do not accept such suggestions who decide to reject renvoi entirely,as Article 9 of the Conflicts Act of 2010 stipulates that:
The foreign law applicable to a foreign-related civil relationship does not include the conflicts law of that foreign country.
In the author’s opinion,the most important reason for the entire rejection of renvoi is that the legislators worry that permitting it,even partially,may further complicate the judicial task of Chinese judges.That consideration may be comprehensible to some degree at the present stage; however,given the quality of Chinese judges has been,and will be,improving continuously,the author believes that the worry over such issue is unnecessary in the long run.Moreover,as renvoi would increase the possibility of the application of forum law,permitting it can,actually,alleviate the burden of Chinese judges in general.
Another question,which is worth of concern,is whether an applicable foreign law includes the procedural law of that country,insofar as a literal interpretation of the above article would lead to an affirmative answer.Nonetheless,given that procedural issues are governed by the lex fori is a well established principle universally accepted,one can conclude that such literal interpretation is not in line with the legislative will.Within such a setting,the author submits that the expression of this article is not precise,or to be more specific,if the legislators choose to exclude renvoi completely,this article should read as follows: “[T]he foreign law applicable to a foreign-related civil relationship refers to the substantive law of that foreign country.”(emphasis added)