1. Public policy and the justified inclusion of the renvoi doctrine in transnational African
Law of Contract: A South African perspective
Jan A. Botha*
1 Introduction
Few things simple in Private International Law are such a can of worms as the doctrine of
renvoi. What originated from an intention to benefit all mankind ended up being a bullet
dodging and inconvenience shifting exercise for global jurists; is this headache really worth it?
The essay aims to, briefly, discuss the inception and evolution of renvoi in the South African
legal system; aims to answer just whether renvoi is an unnecessary headache or merely a
troublesome ally; and finally, albeit briefly, determine whether the European Union’s approach
to the exclusion of renvoi in the Law of Contract should be followed by the African Union,
whenever their unified principles may become a reality.
2 Conception and evolution
The existence of the doctrine of renvoi, literally to remit or resend,1
was started through a
mixture of France’s birth of human rights under the slogan of liberté, égalité, fraternité and the
rise of European nationalism under which the Roman-Dutch connecting factor of domicillium
was replaced by the lex patriae.2
The original intention of this change in the French’s
perspective3
was not, unlike some believe, maliciously intended, but rather as a safeguard to
ensure that the citizens of France have their superior human rights irrespective of where they
are or reside.
The concept was first unearthed in the French case of L’Affaire Fargo4
where it was decided
that when a reference is made to a foreign legal system then that reference encapsulates the
entirety of the legal system, including their Private International Law5
and therefore a conflict
of laws arose as these legal systems based jurisdiction on different connecting factors.
* Student of Private International Law, with student number 2011 05 706, University of Johannesburg.
1
Cƒ Envoyer (infinitive) meaning to send and renvoyer (infinitive) meaning to resend.
2
Forsyth Private International Law (2014) 50.
3
Article 3 Code Civile de La France 1803 which reads “Les lois de police et de sûreté obligent tous ceux qui
habitent le territoire. Les immeubles, même ceux possédés par des étrangers, sont régis par la loi française.
Les lois concernant l'état et la capacité des personnes régissent les Français, même résidant en pays étranger.”
4
See Sauveplanne “Renvoi” International Encyclopedia of Comparative Law vol 3 ch 6.
5
Similar to the Appellate Division’s ruling in Sperling v Sperling 1975 3 SA 707 (A). Cƒ Frankel’s Estate v The
Master 1950 1 SA 220 where the Appellate Division held that reference to a foreign lex causae only includes their
internal law.

2. The inception of the renvoi doctrine in South African law stems not from the Roman-Dutch
Common Law roots, but rather from the English law as the determination of the lex causae is a
procedural matter.6
3 Modern-day form
Contrary to the English law approach which deems the renvoi as a useful tool; the Southern
African courts, in essence it could be said the South African courts,7
do not readily apply the
doctrine of renvoi. In fact Forsyth states that the only case, and thus our locus classicus, that
deals with renvoi is Ex Parte Low: In re Estate Mangan8
and this is quite problematic as our
iurisprudence now needs to rely heavily on foreign jurisdictions’ answers to the problem of
renvoi.
The fact that the fate of renvoi has already de facto decided on leads some authors to believe
that renvoi has no future – mainly owing to the fact that: firstly that the renvoi is generally
excluded in international treaties and conventions; and secondly European Union’s unification
of Private International Law,9
Hague Draft documents to follow once finalised, means that
renvoi will receive less and less attention;10
the more unified the body of Private International
Law becomes the less conflict of laws arise.
Forsyth, however, and correctly, criticises this view and believes that so long as there is a need
to unify the body of Private International Law that the doctrine of renvoi cannot be discarded,
as this would lead to international forum shopping;11
an occurrence that will severely tarnishes
the law’s certainty-requirement for justice.
Semble that Forsyth’s approach is preferred as the Australian courts, more infra, have recently
safeguarded the renvoi from its EU coup de grâce.
4 Current application: South Africa
4.1 Scope
6
Martinek “Introduction to Private International Law of the EU” Lecture University of Johannesburg 11 March
2015.
7
See Pain “ The reception of English and Roman-Dutch Law in Africa with reference to Botswana, Lesotho and
Swaziland” 1979 The Comparative and International Law Journal of Southern Africa 137 137. See also Geraldo
and Nowases “Researching the Namibian Law and Namibian Legal System” Hauser Global Law School Program
2013 available from << http://www.nyulawglobal.org/globalex/Namibia1.htm>>
8
Ex parte Low: In re Estate Mangan (1915) SR 147.
9
Forsyth “A modest defence of renvoi” 2009 Tydskrif van die Suid-Afrikaanse Reg 135 141
10
Basedow, Hopt and Zimmerman The Max Planck Encyclopedia of European Private Law Volume I (2012) 1452.
11
Forsyth (n 2) 92.

3. The point of departure for the scope of the doctrine is to determine where renvoi cannot be
applicable. The scope has an absolute limitation in terms of South African law by virtue of S4
Domicile Act.12,13
and S3bis Wills Act.14
Traditionally the English courts, again important to note that our iurisprudence needs to rely
on foreign law in re renvoi, held that renvoi is applicable in the instances of: formal validity of
wills and other testamentary instruments; essential validity of both movable and immovable
property, looking at the Insolvency Act15
semble that rights in rem are so included; Law of
Intestate Succession although some uncertainty on immovable exist and the extent of
applicability still needs to be tested16
; non-contractual obligations; and the position of
legitimacy in foreign law cases.
It is here where the Australian courts have come to the rescue of the renvoi, by expanding the
traditional scope of the renvoi; which in turn would not just influence South African Private
International Law, but the move the global body of iurisprudence towards the more abstract
application of the doctrine. In fact the contribution is so important that it warranted that authors
reprint textbooks to include the Australian landmark judgments.17
The first case where the renvoi was extended was found in Neilson v Overseas Projects
Corporation of Victoria Ltd.18
Forsyth that the case interesting on two points: the first being
that the court extended the doctrine of renvoi to the Law of Delict; the second that the renvoi
was applied to overcome rigid choice-of-law rules and to advance uniformity rather than the
traditional case where there is a conflict between the lex domicilli and lex patriae as connecting
factors.19
The doctrine was again extended in the case of O’Driscoll v Ray McDermot20
. After the
inception of the Rome Convention, albeit largely defunct, its application is still found in South
12
Act 3 of 1992 which excludes the renvoi when domicillium is used as a connecting factor.
13
Oppong Private International Law in Commonwealth Africa (2013) 7.
14
Act 7 of 1953.
15
Section 2 Insolvency Act 24 of 1936.
16
(n 2) 102.
17
(n 2) v.
18
2005 HCA 54; 2005 223 CLR 331.
19
(n 2) 92.
20
2006 WASCA 25.

4. Korea21
and Turkey,22
and subsequently Rome I Regulation23
it was common cause that the
renvoi cannot be applicable in the Law of Contract.24
The court, however held that the determination of the proper law is not based on the intention
of the parties, but presently rather determined objectively, as the chosen lex causae was of no
practical effect. In South African iurisprudence, it is sufficiently clear that clear that this cannot
be allowed and that the law must have a real and substantial connection to the matter.25
In casu
the reason for the nullity of the express choice-of-law stems from the fact that the indicated lex
causae was substantially identical to the lex fori. The court concluded that the application of
renvoi is always remains a discretionary measure a view which Davies strongly disagrees
with.26
In conclusion of the scope of renvoi semble has been extended, internationally, well beyond
that which is applied under the Laws of England and Wales. The exact scope of renvoi is
however still uncertain; in the case of Islamic Republic of Iran v Berend27
the English courts
have clearly maintained their reluctance to extend the scope of renvoi to the question of
ownership in re ownership of personal chattels.
4.2 Doctrinal usage
Several arguments can be forwarded why the doctrine should be allowed,28
but the most
commonly supported functions of renvoi are: principally for uniformity;29
advancement of
mores/ordre du public30
; and as an escape device to the restrictive rigidity of conflicts of law
rules which Forsyth believes to in turn aid in the principle purpose of renvoi.31
21
See Yearbook of Private International Law 2003 315 for English translation.
22
See Yearbook of Private International Law 2007 583 for English translation.
23
Regulation (EC) No 593/2008 on the law applicable to to contractual obligations (Rome I).
24
Neels “Rome in the far East. The influence of the European model of private international law of contract in
China, Japan, Mongolia, South Korea and Taiwan” Lecture at University of Amsterdam December 2011,delivered
at the University of Johannesburg 22 April 2015.
25
Neels and Fredericks “The music performance contract in European and South African private international
law” 2008 Tydskrif van die Hedendaagse Romeins-Hollandse Reg 529 534-535.
26
Davies Nygh’s conflict of laws in Australia (2010) 322.
27
2007 EWHC 132.
28
Kanjan “Renvoi” II.2 LAWSA (2008) § 286.
29
(n 2) 100.
30
Cƒ Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 and Article 26 Regulation
(EC) 864/2007 on the law applicable to non-contractual obligations (Rome II).
31
(n 2) 93.

5. As the interrelation between renvoi and public policy is yet to be even discussed by the South
African courts it can, for present purposes, be ignored. The aim of uniformity will be discussed
infra in context of the various approaches of renvoi and the practical problems it can create.
4.3 Application32
As a preliminary note there should be distinguished between the two forms of renvoi. Suppose
that the possible leges causea are the laws of x, y and z. Remissionary renvoi refers to a situation
where, the conflicts rule of x refers the matter to the law of y which in turn refers the matter
back to the law of x in terms of its own conflicts rule. Alternatively transmissionary renvoi
would be where the law of x refers the matter, in a similar fashion as described supra, to the
law of y; which in turn refers it to the law of z etc.
There are two broad theoretical approaches to renvoi: the first being the rejection thereof; and
the second the acceptance.
On the one hand the rejection theory of declinature, of little importance and/or consequence,
simply, in terms of its own conflicts rules, declines to hear a matter passed on to it.
The more consequential rejection approach is the no-renvoi approach whereby there is assumed
that the law referenced is only the internal law, thereby ending the inquiry of the applicable
legal system there. This approach is common in various countries, none of which are of much
consequence to South Africa. Further Forsyth specifically rejects this approach as it would not
lead to the international harmonisation of private international law and that it is not the best
approach to dealing with the present application or non-application renvoi internationally.
The camp of acceptance provides the best option. The least important of these approaches being
the double renvoi where the courts would consider how a foreign jurisdiction would treat a
matter and proceed accordingly.33
Despite its unworkable nature Forsyth, however believes that
the double renvoi is the main approach used in Common Law jurisdictions.
It is, with the greatest respect, submitted that the above idea is false as modern day precedent
seems to lean more towards the use of the partial renvoi, the last approach of acceptance. Under
the partial renvoi approach the lex fori acknowledges the fact that a foreign legal system may
32
Brevitas causa see (n 2) 95-100.
33
Mackay Halsbury’s Laws of England (2011) par 390.

6. deal with a matter differently, but as a matter of practicality that only the first additional
reference may be used and that the inquiry be halted there.
Scientifically speaking one could say that the lex foi acts as the dynamic point of reference in a
sequential string of referential legal systems and that the partial renvoi allocates the lex causae
to the law which is found to be two references away from the reference point.34
This approach to renvoi has been, semble, adopted in Ex Parte Low NO: In re Estate Mangan35
and definitely applied in Neilson v Overseas Projects Corporation of Victoria Ltd36
where it
was viewed as the only reasonable option as the application of the traditional double renvoi
would be absurd and logically impossible owing to the impossibility of taking into account the
entirety of the Chinese Law. Accordingly the only looked at Article 14637
and turned a blind
eye to the rest.
Accordingly, it is submitted that the application that will be followed in the future in the South
African courts would be one of partial renvoi.
4.4 Practical quandary
As it has been submitted supra that the partial renvoi will most likely apply in the South African
courts only the challenges of this approach will be discussed.
There are three main difficulties with renvoi in general. According to Halsbury’s the problems
lie in that the ascertainment of foreign conflicts law is difficult and that renvoi cannot be applied
if the referenced system also applies renvoi.38
Forsyth’s emphasis, however lies in the
uniformity and international harmonisation of Private International Law.39
S1 Law of Evidence Amendment Act40
greatly reduces the first problem insofar it would lead
the court, unless expert evidence can be delivered on the content of the foreign law, which is
challenging in a country such as South Africa, not entertain the renvoi as the foreign law is too
uncertain.
34
Mathematically the lex fori being (n+0) and the lex causae (n+2).
35
1915 SR 147.
36
2005 HCA 54 par 39 and 271.
37
General Principles of Civil Law of the People’s Republic of China Order 37 of 1986.
38
Mackay (n 33) par 310.
39
(n 2) 102.
40
Act 45 of 1988.

7. The problem can however been seen in Laurens NO v Von Höhne,41
albeit not in a renvoi
context, where in casu the court did not want to entertain certain aspects of the averred German
law.
It is suggested that Halsbury’s second difficulty and Forsyth’s problem are of similar nature
and can be addressed as one critique against the doctrine of renvoi.
Whereas Oppong would argue that S4 Domicile Act has obviated many of the practical
problems of renvoi, insofar domicillium is used as a connecting factor;42
Forsyth believes that
this same section worsens the situation as it leads to forum shopping, is unprincipled and
unnecessary.43
Ultimately allowing parties to forum shop would harm the main purpose of renvoi as well as
the main object of international legal instruments
Forsyth’s view is accepted to be correct as his argument is largely based on the fact that the
renvoi is an extremely useful escape measure from an inappropriate legal system and by using
this flexible conflicts rule a court can much better achieve international harmonisation; this has
been clearly seen in the Neilson v Overseas Projects Corporation of Victoria Ltd.44
5 Comparative application
According to Martinek45
one can divide the global legal systems into five broad legal categories,
this naturally excludes ecclesiastical systems such as Hindu, Sharia and Cannon law, and each
of these systems treat legal doctrines, and the renvoi as no exception, vastly differently.46
As:
other neighbouring countries, excluding Mozambique, follow substantially the same law as
South Africa; the European Union Pluralistic Law jurisdiction now relies on the European
41
1993 2 104 120.
42
Oppong (n 13) 7.
43
(n 2) 94.
44
2005 HCA 54 par 13.
45
(n 6).
46
Specifically on the exclusion of renvoi in Article 20 of Regulation (EC) No 593/2008 on the law applicable to
to contractual obligations (Rome I) and how the different legal families deal with the doctrine in vastly different
manners.

8. Regulations47
; and the access to the Laws of Sri Lanka48
are severely limited there will only
follow a superficial discussion on the position of the other four legal families.
5.1 Common Law jurisdictions
In short, these countries follow the laws of the Commonwealth of Nations, as developed by the
English legislature and judiciaries. The two notable jurisdictions in this regard would be the
United States of America, excluding the State of Louisiana, and the Canada, excluding the
Province of Québec.
In the context of the United States it must be noted that there is no overarching federal Private
International Law, but is rather subdivided into various approaches49
which are followed by
different states.50
In all the approaches, but for the Reinstatements the renvoi does apply,
although the exact scope and approach to it is unknown.
The First Restatement did however have the exception that the renvoi may apply should there
be a state, according to the Government Interest approach, whose laws should be applied. The
Second Restatement goes further and adds a second exception inclusion for the renvoi namely
that the parties may choose to include it.51
Canadian common law courts, this includes the Canadian Supreme Court, generally follows the
position that the renvoi may apply unless it has been eliminated by statute.52
5.2 Napoleonic Civil Law jurisdictions
Perhaps the best guidelines for the Napoleonic approach are the excluded territories of the
Unites States of America and Canada.
In terms of the Law of Québec, and oddly similar to the Belgian position, the renvoi is almost
completely rejected,53
but allowed in a limited scope of application;54
furthermore semble that
47
Regulation (EC) No 593/2008 on the law applicable to to contractual obligations (Rome I) and Regulation (EC)
864/2007 on the law applicable to non-contractual obligations (Rome II).
48
Being the only other Pluralistic Law jurisdiction of concern.
49
First Restatement, Second Restatement, Government Interest, Modified Interest, Comparative Impairment
Approach, Better Law, Significant Contracts, Lex Fori and Combined Modern.
50
Neels “Private International Law in the United States” Lecture University of Johannesburg29 April 2015.
51
Felix and Witten American Conflicts Law (2011) 252.
52
Mackay Halsbury’s Laws of Canada (2011) 567.
53
Article 3080 Code Civile du Québec (1991) containing the provision that where there is refered to a foreign lex
causae that, those laws are only the internal laws of that country.
54
Symeonides Codifying Choice of Law Around The World (2014) 139.

9. the application of renvoi is hinges on considerations of public policy, a popular approach in
Canadian jurisprudence.55
Louisianan State Law the renvoi in in general rejected, but as with Canadian Law this approach
is not absolute, yet parties may choose to specifically include the renvoi.56
5.3 Germanic Civil Law jurisdictions
As the EU Regulations govern much of the aspect of renvoi there should be looked for a
Germanic system way beyond Europe. The two best systems in this regard being South Korea
and Japan.
Korean Law expressly excludes renvoi57
and although there is no clear indication on the
position of Japanese Law it would be very likely that it would also exclude the renvoi as its
Family Law is very similar to the Korean Family Law.58
The deduction is emphasises by virtue
of German Law also excludes the renvoi.59
5.4 Nordic Civil Law jurisdictions
The position in Norway is unknown as renvoi has not been debated in its courts.60
Unfortunately, similar to Norway, Iceland also does not have a codified system of Private
International Law and the position is also unknown. This leads to the problematic scenario of
returning to EU Member States again for answers. Both Sweden and Finland clearly rejected
the renvoi and it would thus be safe to assume that all the countries to the Nordic Conventions
would follow the same approach to the renvoi.61
6 Conclusion
The main purpose of Private International Law is harmonisation of foreign legal systems, but
why is this important?
55
Symeonides (n 54) 261.
56
(n 52) 140.
57
(n 52) 139.
58
(n 54) 139,197-198,261-263,282-284.
59
Bundesgesetzblatt I/1986 810 §4(2) and §35(1).
60
Cƒ (n 54) 407,409.
61
See < http://ec.europa.eu/civiljustice/applicable_law/applicable_law_fin_en.htm#II.2.> for the applicable law
on Finland. See also < http://ec.europa.eu/civiljustice/applicable_law/applicable_law_swe_en.htm#II.2.> for the
applicable law on Sweden.

10. One argument can be found in the European Union’s four freedoms62
and that harmonisation
leads to the global strengthening and enforcement of human liberties and rights. Thus striving
for international harmonisation makes everyone socio-politically better well off.
The main argument, however, and the principle reason for the European Union’s internal
market and four freedoms, stems from an overarching principle of The Wealth of Nations63
,
according to which specialisation in an economic sense leads to greater wealth for all. Without
the breakdown of trade barriers the world, as a whole, will never reach its maximum capacity.
Based on the above it is clear that the unification of the Law of Contract within Africa would
be of immense value to the continent and might play a pivotal role in leapfrogging into its first
world potential.
As the importance of the harmonisation of Private International Law is clear it is submitted that
the renvoi, despite being a very troublesome ally, should not be excluded, as it remains an
extremely valuable legal doctrine, in South Africa in its original English law approach of double
renvoi, but where practical problems arise because of excessive transmission, then the courts
may, as a compromise based on convenience, settle for the partial renvoi as suggested by the
Australian courts.
It is however submitted the traditional scope of renvoi should not be widened per se, as to
include the doctrine in the Law of Contract, but rather there should be a rule which allows the
courts, based on public policy, to move beyond the traditional scope of renvoi where it is
necessary to ensure uniform application of the law; be it domestic, international or supranational
level.
62
See Article 3 Treaty on European Union 1993. See also Articles 21-19 and 114,115 Treaty on the Functioning
of the European Union 1993.
63
Smith A The Wealth of Nations Volumes I-V (1776) understood as a whole (Strahan and Cadell London)

11. 7 Bibliography
Books
Basedow J, Hopt KJ and Zimmerman R The Max Planck Encyclopedia of European Law
Volume I Oxford University Press Oxford (2012)
Davies M Nygh’s conflict of laws in Australia LexisNexis Chatswood (2010)
Felix RL and Witten RU American Conflicts Law Carolina Academic Press Durham (2011)
Forsyth CF Private International Law Juta and Company Cape Town (2014)
Kanjan A II.2 LAWSA LexisNexis Durban (2008)
Mackay J Halsbury’s Laws of Canada LexisNexis Markham (2011)
Mackay J Halsbury’s Laws of England LexisNexis London (2011)
Oppong RF Private International Law in Commonwealth Africa Cambridge University Press
Cambridge (2013)
Smith A The Wealth of Nations Volumes I-V Straham and Cadell London (1776)
Symeonides SC Codifying Choice of Law Around The World Oxford University Press New
York(2014)
Case Law
Ex parte Low: In re Estate Mangan 1915 SR 147
Islamic Republic of Iran v Berend 2007 EWHC 132
Neilson v Overseas Projects Corporation of Victoria Ltd 2005 HCA 54
O’Driscoll v Ray McDermot 2006 WASCA 25
Journal Articles
Forsyth CF “A modest defence of renvoi” 2009 Tydskrif van die Suid-Afrikaanse Reg 135
Geraldo GM and Nowases IS “Researching the Namibian Law and Namibian Legal System”
2013 Hauser Global Law School Program 1

12. Neels and Fredericks “The music performance contract in European and South African
private international law” 2008 Tydskrif van die Hedendaagse Romeins-Hollandse Reg 529
Pain JH “ The reception of English and Roman-Dutch Law in Africa with reference to
Botswana, Lesotho and Swaziland” 1979 The Comparative and International Law Journal of
Southern Africa 137
Lectures
Martinek “Introduction to Private International Law of the EU” Lecture University of
Johannesburg (UJ) 11 March 2015
Neels “Private International Law in the United States” Lecture UJ 29 April 2015
Neels “Rome in the far East. The influence of the European model of private international law
of contract in China, Japan, Mongolia, South Korea and Taiwan” UJ 22 April 2015.
Legislation
Bundesgesetzblatt I/1986 810
Code Civile de La France 1803
Code Civile du Québec 1991
General Principles of Civil Law of the People’s Republic of China Order 37 of 1986
Regulation (EC) 864/2007 on the law applicable to non-contractual obligations (Rome II)
Regulation (EC) No 593/2008 on the law applicable to to contractual obligations (Rome I)
The Domicile Act 3 of 1992
The Insolvency Act 24 of 1936
The Law of Evidence Amendment Act 45 of 1988
The Wills Act 7 of 1953
Treaty on European Union 1993
Treaty on the Functioning of the European Union 1993