CHAPTER 10: THE RENVOI SITUATION
PRINCIPLES AND CASES IN PRIVATE INTERNATIONAL LAW:
A PROCEDURAL APPROACH
-oOo-
MARK ANGELO S. DELA PEÑA
To cite this online book, please use the following:
Dela Peña. 2023. "Principles and Cases in Private International Law: A Procedural Approach." Published by Project Jurisprudence - Philippines. Published: September 17, 2023. Link: [Insert link] Last accessed: [Insert date of access].
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CHAPTER 10:
THE RENVOI SITUATION
Renvoi is a situation where a court, having determined that the law of a foreign country applies to a case, finds that the same foreign law refers the case back to the law of the forum. This is why “renvoi” is also called “international tennis” or “international ping pong.”
“Renvoi Situation” v.
Doctrine of Renvoi
The author is hesitant to introduce to the student the term “renvoi” with the word “doctrine” attached to it. The reason for this hesitance is that, first and foremost, renvoi is a situation, not a doctrine. It is a situation wherein the conflicts rule of the forum makes a reference to a foreign law, but the same foreign law is found to contain a conflicts rule that returns or refers the matter back to the law of the forum.[1]
The question of how to resolve renvoi situations has given rise to different approaches or “doctrines” which, due to the limited vocabulary of law, all became known as the “doctrine of renvoi” or “the theory of renvoi.” More properly then, these approaches in the resolution of renvoi are better called “renvoi resolution doctrines.”
The most popular of these “renvoi doctrines” is the solution to stop the referring back and for the forum to adopt the first referring back in order to avoid an international ping pong. This is the approach accepted by a majority of authors and law professors in the Philippines. Even the Supreme Court has a history of adopting this “theory of renvoi.” For example, in the case of Aznar v. Garcia, the Court held: “We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the Philippines, the validity of the provisions of his will depriving his acknowledged natural child, the appellant, should be governed by the Philippine Law, the domicile, pursuant to Art. 946 of the Civil Code of California, not by the internal law of California.”[2]
The theory or the doctrine of renvoi has another meaning in law. It also refers to the approach of looking into not only the internal foreign law but also the conflict of laws rules of the foreign jurisdiction. According to Prof. Lorenzen: “The recognition of the renvoi theory implies that the rules of the conflict of laws are to be understood as incorporating not only the ordinary or internal law of the foreign state or country, but its rules of the conflict of laws as well. According to this theory, the law of a country means the whole of its law.”[3]
Four Parts of A
Renvoi Situation
However, this solution is not as simple as it seems. An analysis of a renvoi situation should start from its inception and should continue towards its impact or effect. It is submitted that a renvoi situation has four parts: (a) the inception (which is the initial pointing or referral by a municipal law to a foreign law); (b) the first contact (the approach of the forum upon informing itself of the foreign law); (c) the referring back (the pointing or referring back by a foreign law previously pointed to this time to the municipal law of the forum); and (d) the impact (the court’s approach regarding the effect of the application of the foreign law on the forum itself and the facts of the case).
THE FIRST PARTY OF
A RENVOI SITUATION
The starting point in law for the forum is municipal law. Hence, the law student must approach any conflicts case by first looking into Philippine law.
In a case, for example, involving the amount of successional rights of a Filipino wife in relation to the estate of her deceased Texan husband whose succession is in question in a Philippine court, the inception – the first part – of a renvoi situation begins after the forum’s characterization of the case as falling under succession law and from the time the forum informs itself of the municipal law that points to a foreign law. In relation to this example, Article 16 of the New Civil Code provides that “intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.”
Moreover, Article 1039 of the same Code provides: “Capacity to succeed is governed by the law of the nation of the decedent.” Considering that the decendent is a citizen of Texas, it is his national law – Texan law – that governs the amount of successional rights to which his heirs are entitled and their capacity to succeed. Hence, if under the Texan’s national law, his Filipino wife has no mandatory share in his estate – also known as legitime, she cannot successfully invoke Philippine law on legitime.
Second Part Of
Renvoi Situation
The second part of a renvoi situation is the approach of the forum upon informing itself of the foreign law, also called in this book as “first contact.” Note that, in this jurisdiction, foreign law is never presumed; and, therefore, must be properly pleaded and proved. Otherwise, the doctrine of processual presumption will apply. The forum, in a situation wherein the invocation of a foreign law is proper, is now given the opportunity to read and inform itself of the text of the foreign law. This is the reason why a translation into Filipino or English of a document written in an unofficial language is required for its admissibility under the Rules of Court.[4]
Proper Reading
Of Foreign Law
In reading the text of the foreign law, the question for the forum is whether (a) it should take into account the isolated code or statute alone; (b) examine the isolated provision or provisions in relation to other statutes in the foreign state; or, (c) consider the whole legal system of that foreign country. This may appear to the law student as a very pedantic or over-exacting approach to the study of a renvoi situation but the value of this discussion will materialize after a few paragraphs.
The Philippine forum, if required only to read and understand the relevant foreign law provision in isolation, is naturally inclined to adopt its own understanding of the law based on the Philippine legal system, including pieces of Philippine jurisprudence on the matter. If the foreign law provision states, for example, that “the estate shall be divided according to the number of heirs,” the words “estate” and “heir” will naturally be understood by the Philippine forum in accordance with its own concept of Philippine law. Of course, this may result in what may be claimed to be errors because the foreign jurisdiction’s jurisprudence, or if read in relation to other existing foreign statutes, may have been interpreted the same provision in a different way.
If required to read the foreign law, either a code or a statute, in its entirety but without taking into consideration the whole legal system of that foreign country, the Philippine forum will not be sitting in judgment over what the code or statute means through the interactions of its provisions. Again, without considering the jurisprudence of that foreign jurisdiction, the forum’s interpretation of the law may be different from the prevailing judicial view on the subject matter.
If required to read the relevant foreign law provision in view of the whole legal system of the foreign state, the forum will have to consider the prevailing understanding of the legislature and the judiciary of that foreign state over the provision in question, including related statutes and codes.
In either of these three ways of reading foreign law, another overarching questions is whether the reference to foreign law includes the purely internal rules of law of the foreign system, i.e., the totality of the foreign law minus its conflict of laws rules.[5] In simpler terms, the question is whether the forum should ignore the conflict of laws rules of the foreign state and, instead, focus on the purely internal laws of its legal system. For example, if Philippine law points to the application of Canadian law and the latter law points back to the former law, but the Canadian legal system or the prevailing jurisprudence in that system adopts the total rejection of a renvoi situation, the forum is stuck between two options: (a) to apply Canadian law because the Canadian legal system totally rejects a renvoi situation; or (b) to apply Philippine law, ignoring the Canadian legal system’s rejection of a renvoi situation, focusing only on the internal law of that country and adopting the first referral back in order to stop the international ping pong.
In the Philippines, as to the type of renvoi situation that involves a referring back to the forum law after a reference by municipal law to a foreign law, the solution it to adopt the first referring back, avoid an international ping pong and apply Philippine law. Also, this jurisdiction adopts the “theory of renvoi” as advanced by Prof. Lorenzen that every court shall observe the law of its country as regards the application of foreign laws. Provided that no express provision to the contrary exists, the court shall respect the provisions of a foreign law which disclaims the right to bind its nationals abroad as regards their personal statute, and desires that said personal statute shall be determined by the law of the domicile, or even by the law of the place where the act in question occurred.[6]
At any rate, in reality, the parties or litigants usually assist the court in determining the meaning of the foreign law. Considering that Philippine courts cannot take judicial notice of a foreign law, forums in this jurisdiction usually take a passive attitude over questions of foreign law. Moreover, if the existence of foreign law itself is a question of fact, it is with more reason that the meaning of the foreign law and the pieces of jurisprudence surrounding it must also be considered as a factual matter that requires clear and convincing proof.
Another problem in renvoi is what happens when the municipal law points to a foreign law but the latter law does not contain any provision applicable to the factual situation of the conflicts case. Many views have been adopted to resolve a situation like this but the most compelling is the application of forum law because the forum’s starting point is always the laws of its own country. The reasoning given for this is that, if the municipal law points to a foreign law which is silent about the applicable rule on the facts in question, this silence should not hinder the forum from resolving the same. Considering that the forum’s starting point is its own municipal law, such municipal law is the logical solution.
Double renvoi
Double renvoi is a type of renvoi whereby equality of result is guaranteed by the forum. Following this, the forum will settle the issues in a way that is indistinguishable from as the way the foreign court would apply its own municipal laws and its own choice of law principles in resolving the case. Double renvoi is implemented by the forum when no other pertinent law is determined to determine the question. In this situation, the forum considers that it is sitting as the foreign court and will choose the matter as the foreign court would.[7] In this framework, there can never be more than two remissions. Double renvoi or total renvoi is otherwise called the foreign courts doctrine. Dissimilar to Spain, a few nations, for example, England and France, currently accept renvoi twice. However in this framework there can never be more than two remissions.[8]
Third Part Of
Renvoi Situation
The third part of a renvoi situation is the reference back, i.e., the pointing or referring back by a foreign law previously pointed to but this time to the municipal law of the forum. When, for example, Japanese law is pointed to by Philippine municipal law and the former law points back to the latter law, this situation does not always assume a singular straight line.
Assume that a Japanese husband died intestate in the Philippines, leaving property of various kinds in Japan, in the Philippines and in China. Settlement of his estate is commenced before a Philippine court and so the starting point should be Philippine law. However, Philippine law states that, as to the order of succession and amount of successional rights, the national law of the decendent shall govern; hence, “the inception.” The forum, in due course, will look into and inform itself of Japanese law (hence, “the first contact”) and discover that the foreign law refers back to the law of the place of death, i.e., the Philippines; hence, there “referring back.” However, the Japanese law states, for example, that “if the the property is located in a state different from the place of death, as to the distribution of the property located elsewhere, the law of its location shall govern.”
Notice that, in the above example, Japanese law does not only direct the Philippine forum to apply Philippine law but also Chinese law. This creates complications because the foreign law now points to the application of yet again another foreign law. The question now is whether the forum should comply with the first foreign’s law’s reference to the second foreign law.
To resolve this, the “mutual disclaimer of jurisdiction theory of von Bar and Westlake, contrary to the theory of renvoi proper, necessarily leads to the application of the internal law of the forum in practically all cases in which the rules of the conflict of laws of the forum differ from those of the country whose law has prima facie been adopted and incorporated. Whenever there is a diversity in the rules of the conflict of laws of the two countries concerned, it means, according to this theory, that there is no internal rule in either country actually applicable to the case. In reality, there is a gap in the law which the judge of the forum, who is obliged to decide the case in some manner, is forced to fill up by applying his own internal law. All [the judge] is asked to do by the law of the forum is to ascertain whether the law of the foreign country which is incorporated claims jurisdiction over the case. If it does not, its law has nothing further to say in the matter; the law of the forum directs its judge in such event to apply its own internal law.”[9]
Another view – which is less popular than that of von Bar and Westlake – is offered, however, that, considering that the forum law directs the court to follow a foreign law, to whatever that foreign law points to must be complied with. Hence, if a foreign law pointed to by forum law in turn points to the law of a third state, under this view, the court must follow all references to their logical end. This puts undue burden on the proceedings of the forum and also on the shoulder of the party invoking the first foreign law, considering that the second foreign law referred to is another question of fact for which proof is required.
Fourth Part Of
Renvoi Situation
The fourth part of a renvoi situation is its impact or the court’s approach regarding the effect of the application of the foreign law on the forum itself and on the facts of the case.
Going back to the next preceding example, assume that a Japanese husband died intestate in the Philippines, leaving property of various kinds in Japan, in the Philippines and in China. Settlement of his estate is commenced before a Philippine court and so the starting point should be Philippine law. However, Philippine law states that, as to the order of succession and amount of successional rights, the national law of the decendent shall govern; hence, “the inception.” The forum, in due course, will look into and inform itself of Japanese law (hence, “the first contact”) and discover of it refers back to the law of the place of death, i.e., the Philippines; hence, “the referring back.” Then, the forum will have to study the impact of the foreign law on the forum; hence, “the impact” part of a renvoi situation.
Even if the municipal law of the forum points to the application of a foreign law but if the foreign law’s impact is repugnant to the constitution of the concerned state or obnoxious to its public policy, the forum is justified in refusing the application of the foreign law.[10]
IN RE ANNESLEY
In the case of In Re Annesley,[11] decided by the England and Wales High Court of Justice, an action was filed in an English court. The case was for the determination of the validity of a decedent’s will which, according to English law, should be governed by the law of the decedent’s domicile at the time of her death. Here, the decedent was an English woman who, prior to her death, lived in France exclusively for nearly 60 years. However, under English law, the decedent became French citizen, or at the very least a domiciliary there, as a result of being domiciled in France at the time of her death. On the other hand, under French law, the will would be invalid because of a disposition limitation which the will violated. Again, under French law, the decedent was not a French citizen when she died because she did not follow Article 13 of the French Civil Code. If English law would be applied, the will would be valid because there was no disposition limitation under said law.
Thus, the case of In Re Annesley involved the following issues: (a) whether the decedent was domiciled at the time of her death in French; and (b) if she was considered domiciled therein, whether French law would govern her succession. It was held that the decedent, even though she failed to comply with the law of France on domicile, should be considered as a French domiciliary because it is the law of the forum (English court) that should determine whether a person is a domiciliary of another state. Hence, the French law should govern the will.
The In Re Annesley is more complicated than the presentation above, which is so presented for simplicity. In fact, from a farther viewpoint, the argument is that, since English law pointed to French law, the English court look into the latter and saw that French law did not consider the decedent’s domicile to be set in France. In fact, French law, if properly applied, pointed to English law as the lex domicilii. Without actually mentioning it – or probably, thinking about it, the the England and Wales High Court of Justice actually resolved a renvoi situation. Instead of allowing the international ping pong to continue, the English court halted it by saying, in fact, the case should stop in its forum and should be decided in accordance with English municipal law.
AZNAR V. GARCIA
In Aznar v. Garcia,[12] appellant invoked the provisions of Article 946 of the Civil Code of California, which says: “If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile.” Appellee, on the other hand, relied on the case of In Re Kaufman,[13] asserting that that as the decedent was a citizen of the United States and of the State of California at the time of his death, and so the successional rights and intrinsic validity of the provisions in his will should be governed by the law of California, in accordance with which a testator has the right to dispose of his property in the way s/he desires, i.e. without any statutory testamentary limitation such as legitimes or the concept of compulsory heirs. In rebuttal, appellant insisted that Article 946 of the Civil Code of California should be made applicable and, in accordance therewith, the question of the validity of the testamentary provision in question should be referred back to the law of the decedent’s domicile which is the Philippines.
The Aznar case presents one of the best examples of a renvoi situation. In resolving the case and applying a resolution to the renvoi situation called “the theory of renvoi,” the Supreme Court of the Philippines held that the conflict of laws rule in California, i.e., Article 946 of its Civil Code, precisely referred the case back, because the decedent was not domiciled in California, to the law of his domicile, the Philippines. The court of the domicile cannot and should not refer the case back to California because such action would leave the issue incapable of determination because the case would then be, like a football, tossed back and forth between the two states, between the country of which the decedent was a citizen and the country of which he was a domiciliary. The Philippine court had to apply its own law as directed in the conflict of law rule of the state of the decedent in order to actually settle the controversy.
[1] Batas Natin. Unspecified year. “Renvoi Doctrine (Referring Back).” https://batasnatin.com/law-library/civil-law/persons-and-family/2317-renvoi-doctrine-referring-back.html. Last accessed: August 28, 2023 at 10:22 PM.
[2] G.R. No. L-16749, January 31, 1963.
[3] Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531, cited in Aznar v. Garcia, G.R. No. L-16749, January 31, 1963.
[4] Article 33 of Rule 132 of the Rules of Court: Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial.”
[5] G.R. No. L-16749, January 31, 1963.
[6] Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531; Aznar v. Garcia, G.R. No. L-16749, January 31, 1963.
[7] Khan, A., Ghani, A., & Ullah, M. (2018). What is' Renvoi'? Distinguish the Theory of'Single Renvoi'from'Double Renvoi'with Reference to Relevant Case Law in Private of International Law. Distinguish the Theory of'Single Renvoi'from'Double Renvoi'with Reference to Relevant Case Law in Private of International Law (February 15, 2018).
[8] Dellamarggio v. B-Line, LLC (In re Barker), 306 B.R. 339 (Bankr. E.D. Cal. 2004).
[9] Prof. Lorenzen, Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531.
[10] See Llorente v. Court of Appeals, G.R. No. 124371, November 23, 2000.
[11] Annesley v. Annesley, Ch. 692 (1926).
[12] G.R. No. L-16749, January 31, 1963.
[13] 117 Cal. 286, 49 Pac. 192.
