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THERENVOITHEORY, ITS DEVELOPMENT, APPLICATIONTOCONTRACTUAL

CHOICEOFLAWANDTHEWAYFORWARD

--VARUNVAISH(2008-74)

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Th R!"#$ Th#%&

It is understood that while every state includes one internal body of law that is applicable

to domestic situations, it also includes another body that is applicable to scenarios involving a

foreign element.1This latter body of rules is commonly referred to as the conflict of law rules.

These rules often require a particular forum to apply the law of a foreign state which may be the

place of situs of some property, place of domicile for a litigating party, or the place where a

contract is signed.2Where reference is made to the law of the foreign state, does that reference

pertain to the local law of the foreign state or the conflict of law rules of that state will determine

whether the court making the reference accepts the doctrine of envoi. !If reference is made to

the conflict of law rules of the foreign state, then the forum making the reference accepts the

doctrine."The conflict of law rules for the foreign country may refer the matter back to be dealt

with the law of the forum or to the law of a third nation, and such transfers are referred to as

remission and transmission respectively.#

The first ever mention of the term $envoi$ was made in a note in the 1%&% issue of 'aw

(uarterly review.)It states that at the time, *udges of courts in +rance, Italy and ermany as well

as academicians of the time were deeply concerned about the question of envoi orDie Riick-

und-Weiterverweisung as it was called in erman.-This term, however, was still unheard of in

ngland. The note understands the phenomenon of envoi in terms of a /remission/ by a superior

court to an inferior court to be further dealt with.%The note leaves the question of the validity of

envoi and its adoption by the nglish system unanswered. The note is important in that it is the

first ever mention of the term envoi in nglish legal writing. The envoi question first surfaced

in a +rench 0ourt in 1%"1 but did not gain importance until later in 1%-%. ven then, it failed to

capture the attention of nglish 0ourts.

It is believed that each state has the vested right to deal with the legal consequences that

arise of facts occurring in that state and in the same vein courts cannot enforce no legal

obligations that are created elsewhere.&When the court of the forum refers to the law of a

foreign state, it means that the court will enforce the same right as the foreign court would have

enforced faced with a similar factual situation. The theory of vested rights however requires that

1. . '., envoi in the 0onflict of 'aws, The 3ale 'aw 4ournal, 5ol. 2&, 6o. 2 78ec., 1&1&9, pp. 21":21%2

rnest . 'oren;en,The $envoi$ Theory and the ar., 1&1=9, pp. 1&=:2=-.!

Ibid."'oren;en, The envoi 8octrine in the 0onflict of 'aws:>eaning of $The 'aw of a 0ountry$ 71&1-9 2- 3

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the court of the forum will not create new rights based on the factual scenario occurring in the

foreign state and will only enforce the rights already created by the law of the foreign state. 1=

The concept of envoi first came into prominence in the +argo 0ase ad*udicated by the

+rench 0ourt of 0essation, wherein it was accepted.11Though the countries of +rance, Epain,

Cortugal and Belgium have accepted envoi, such is not the case in Italy and Ewit;erland.12

Westlake and 8icey are of the opinion that ngland may be considered as a envoi Etate as the

concept is well established in nglish 0ommon 'aw.1!It is argued however that it would be

impossible to decide any case applying the doctrine of envoi as the court of the forum cannot

decide the case as a court of the foreign state.1"

Taking envoi to its logical conclusion there would never be a closure to the back and

forth referencing between two countries that recogni;e envoi. +or .g. if the nglish conflict of

law rule requires that the law of the domicile i.e +rench law be applied and upon making a

reference the +rench conflict of law rules requires the 'aw of 6ationality i.e. nglish law be

applied, thereby refereeing the case back to ngland, creating an infinite loop.1# In order to

remedy this Westlake proposes the disestement theory wherein the court of the forum must

necessarily decide the matter if the courts of both countries refuse to accept *urisdiction of the

matter 7limited envoi9.1)Aowever courts that have applied the theory of envoi have understood

a referral back to the country of original reference as a reference only to the internal law of the

country and not to its conflict of law rules, therefore putting an end to repeated circular

referencing.1-

There is a conscious effort to resolve conflicts without resorting to envoi. This is the

stance that the @nited Etates has taken. ar., 1&!19, pp. )2-:)2%.1%ome 0onvention, 1&%= available at: httpHeur: leD.europa.eu'eD@riEerv'eD@riEerv.doJ

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number of countries also preclude its application in tort cases for eDample in the @nited Gingdom

section &7#9 Crivate International 'aw 7>iscellaneous Crovisions9

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@nder nglish law however, no person is without domicile. < domicile of origin attaches

at the time of birth which can be displaced by a domicile of choice after ma*ority. In case of any

uncertainty as to the domicile of choice, then by the doctrine of revival, the domicile of origin

reattaches to the person. iven this rule and given the re*ection of Baden 0ourts of the domicile

rule, +arwell 4 concluded that the domicile of choice i.e. that of Baden has been displaced by the

domicile of choice i.e. >alta. Therefore, the *udge concluded that the movables must be

distributed according to the law of >alta.

The envoi element emerges from the fact that the 0ourt regarded the law of Baden as

including the CI' rules else, the 0ourt having ascertained that the testatriD was domiciled in

Baden could have *ust applied the internal law of Baden. Aowever, this according to Brown22was

not in keeping with the *udicial trend. This is to say that the concept of envoi is in a way implicit

in 0ommon 'aw. This is why the *udge did not consider remitting the matter to Baden since he

knew that according to their CI' rules the matter would not be decided according to their internal

law but would be sent back to ngland. Aowever, this it has been contended is not a *udgment in

favour of envoi but mere obiter.2!

oo C00 !=)2)71%#-9 I 0h 8 2#-

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Therefore, in the words of BrownH

QBremer v. +reeman, so far from being an authority for the re*ection of envoi is on the

contrary an authority for its acceptance. If the 0ourt in that case had not considered itself

bound in referring to +rench law, to refer to that law in the wider sense, why should it

have entered into an elaborate discussion as to the +rench law of domicileJR

In another case +ollier v Riva,$was one of the earliest cases that was decided in 1%"1. ovables in general change hands daily by the delivery of

documents, by the law of the place where the documents areF this is usually the case with 0I+

contracts.

?ne of the primary criticisms of envoi is that it is said to reason in a circle."#

6evertheless certain countries proposed to make use, while negotiating for an international

convention on the matter, of the circular nature of envoi and see this as a merit. It is proposed by

the 6etherland that QIf a second or third envoi leads back to a law already applied, then among

the laws so forming a circle, the 7national9 law of the person applies, without further envoi, in

preference to that of the location of the asset, and the law of the domicile in preference to the

national law.R Aence the ranking of the preference of law from the highest to the lesser would be

firstly the law of domicile, secondly the law of nationality and thirdly the law of the location of

the property.")Thereafter depending upon the facts of each case people can disembark at different

points of the circular envoi wheel. Aence all cases of marriage and divorce can have one rule

which will govern what law will apply to them for e.g. the rule of ! months domicile or in the

case of ships and vessels such as the law of the state of registration etc. < similar rule can apply

for commercial contracts such as bills of lading, contracts as well as for torts etc."- >ost cases

can be slotted into ten to twelve different rules such as namely, the law of the forum, the domicil,

the residence, the nationality, the place where the formal act of contract occurred 7loci actus9, the

place where a contract was formed 7loci contractus9, the place where the sub*ect:matter is 7rei

sitae9, the place of performance of a contract 7loci solutionis9,the place where the wrong was done

7loci delicti9, the place where a ceremony was performed 7loci celebrationis9 and it wouldnt be

difficult through international conventions to ensure that all cases of a certain type are governed

by a certain rule and thus bring international uniformity and harmony to the concept of envoi."%

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