The document discusses the doctrine of renvoi in private international law, comparing approaches in Australia and France. It defines renvoi as when a court adopts the conflict of laws rules of a foreign jurisdiction. There are two types: single renvoi, where a court refers back to its own law; and double (or total) renvoi, where courts refer back and forth between jurisdictions indefinitely. The document analyzes a key Australian case, Neilson v OPC, where the High Court considered whether to apply single or double renvoi in an international tort claim. In a 6-1 decision, the Court applied double renvoi and looked to all of Chinese law, including its choice of law rules,

1. THEORY OF RENVOI AND A COMPARATIVE
ANALYSIS BETWEEN AUSTRALIA AND FRANCE

2. INTRODUCTION
• The doctrine of renvoi is one of the most significant and fundamental subject of private international
Law or conflict of Laws, Because sometimes court sees that the issue will be chosen in accordance
with the law of another nation, it's the time when regulation of renvoi assumes it's job in taking care
of the difficulty.
It's a method to take care of the cases in which there exist foreign elements.

3. MEANING AND DEFINITION
• The Renvoi Doctrine is the process by which the court adopts the rules of a foreign jurisdiction with
respect to any conflict of laws that arises. The idea behind the doctrine is to stop forum Shopping
and there the same law is applied to realize an equivalent outcome no matter whether the case is
really addressed.
“Renvoi” originates from the French “send back” or “return unopened”.
The “Convention of Renvoi” is the procedure by which the Court
embraces the principles of an foreign law as for any contention of law
that emerges.

4. POINTS TO BE KEPT IN MIND
• (1) Renvoi arises in the application of the lex causae
• (2) Renvoi arises because of different senses in which lex causae could be
interpreted (3) And Renvoi arises because of the existence of different systems of
Private International Law with different choices of law rules.

5. TYPES OF RENVOI
• Single Renvoi
• Nations, for example, Spain, Italy, and Luxembourg work a “Single Renvoi”
framework. For instance, where a deceased benefactor, who was a French national,
was an occupant in England yet domiciled in Spain leaving moveable property in
Spain, the Court may need to consider which authoritative discussion will apply to
manage the property under progression laws.
• In single renvoi, a judge of a country is faced with conflicting rules of his country
and sends the case to the foreign country but according to the law of that country,
the case is referred back to his country and his country accepts sub reference and
applies the law of his country.

6. ILLUSTRATION
• A Bavarian national demised in France, where he had animated since the age of 5. Where under
Bavarian law the collateral relatives were entitled to succeed, but under French law, the property is going
to be passed to the French government but to not the family members.
Judgment
The French Court held that it might decide the inquiry by applying Bavarian law however the State
contended that the Bavarian Courts would apply French law, and therefore the French Courts ought to do
otherwise. The case was ruled for the French state, and therefore the reference here was to the Bavarian
guidelines of contention.

7. DOUBLE RENVOI
• Total or double renvoi is additionally referred to as foreign court theory. Some Sovereign States like
Spain, England, and France follow double renvoi. For instance, let's look into the concomitant case
whereby a deceased benefactor, an Irish national, residing in Spain, however, domiciled in Italy,
died and left some immovable property in France. France, being the law of the gathering (where the
advantages are arranged) will scrutinize the law of the person who died. Spanish law follows the
law of the deceased nationality which is Italy. Italy, as a ward that just works a solitary renvoi
framework, won't acknowledge the Double Renvoi and almost certainly, immediately will apply
Italian law.

8. NEILSON VS OPC (FACTS)
• The first plaintiff, Barbara Neilson, was severely injured when she fell down a flight of stairs in an
apartment in Wuhan, China. Barbara Neilson’s husband, George Neilson (the second plaintiff), was
employed by the first defendant, Overseas Projects Corporation of Victoria Ltd (‘OPC’) to prepare and
teach a course on organisation behaviour for the Wuhan Iron and Steel University.
• George Neilson’s employment contract with OPC required OPC to provide housing for George and his
family in Wuhan. OPC provided an apartment that had been built and was maintained by Chinese officials.
There was no balustrade at the top of the stairwell in the apartment, which was how Barbara Neilson
came to fall down the stairs.
• The plaintiffs were Australian nationals, domiciled and ordinarily resident in Western Australia. Upon
their return to Western Australia, they sued OPC in contract and tort in the Supreme Court of Western
Australia. OPC instituted third party proceedings against its public liability insurer, Mercantile Mutual
Insurance Australia Ltd (‘MMI’), and also against the insurance broker who arranged the insurance
contract.

9. TRIAL COURT JUDGEMENT
• Applying Australian domestic law, McKechnie J concluded that OPC had breached the duty of care
it owed to Barbara Neilson and was liable to her for damages in the sum of $300 000. In the third-
party proceedings, McKechnie J held that MMI was liable to indemnify OPC.
• MMI appealed to the Full Court of the Supreme Court of Western Australia. Although there were
three grounds of appeal, McLure J (with whom Johnson J and Wallwork AJ agreed) said: ‘The
central issue in this appeal is whether the private international law doctrine of renvoi applies to
international tort claims.’After extensive consideration of the possible answers to the renvoi
question and academic criticisms of double renvoi, the Full Court concluded that there should be no
renvoi in international tort cases. Accordingly, the Full Court held that the trial judge should have
applied Chinese domestic law and should have held that Barbara Neilson’s claim was time-barred
by the Chinese statutory limitation provisions. Hence, the appeal was allowed by the Full Court. As
a result, Barbara Neilson sought and was granted, special leave to appeal to the High Court.

10. APPEAL IN THE HIGH COURT
• By a 6:1 majority, the Court held that it was necessary to consider the whole of Chinese law,
including the Chinese choice of law rules contained in art 146 of the General Principles. To do
otherwise would risk the result that an Australian court might apply Chinese law when a Chinese
court considering the same case would not apply its own law because the Chinese choice of law
rules would direct it to the law of another legal system. Gleeson CJ said it was ‘difficult to see’ why
Australia’s choice of law rule should seek such a result. Heydon J was less restrained, saying such a
result would be ‘absurd’. Applying the whole of the foreign law obviated the need to distinguish
between the domestic law of the foreign jurisdiction and its conflict of laws rules, a distinction that
Gummow and Hayne JJ said may not be easy to draw. There would also be reduced incentive for
forum shopping if the Australian court were to decide the case exactly as a Chinese court would (or
at least were to try to do so), applying all relevant Chinese laws.

11. CONT….
• If the renvoi rules of the foreign law do the same as Australian law and look to the whole of the
foreign law, one arrives at the infamous ‘infinite regression’ of renvoi. Each legal system’s choice of
law rules require it to defer to the choice made by the other. The only way out of this infinite
regression is by ‘sacrificing logic to concerns of pragmatism’ and applying another solution.
Whatever other solution is found, it must involve not applying the whole of the foreign law
and not deciding the case in the way that the foreign court would. This is because the Australian
court must apply the foreign law without its inconvenient rule about renvoi (which would be single
renvoi), and possibly also minus the whole of its conflict of laws rules (which would be rejecting the
renvoi). McHugh J thought it better to reject the doctrine of renvoi altogether by refusing to consider
any of the conflict of laws rules of the foreign law. This was applying the foreign law ‘as fully as
possible’ (meaning, presumably, as fully as ‘logically’ possible), deciding the case as the foreign court
would if none of the parties or events had any connection with another legal system.

12. JUDGEMENT
• Of the six Justices in favour of considering the whole of the foreign law, only one, Callinan J, made a clear
and unequivocal choice between single and double renvoi. Callinan J chose single renvoi, accepting the
reference by the Chinese choice of law rules to Australian law and applying Australian domestic law.
• The other five Justices (Gleeson CJ, Gummow, Hayne, Kirby and Heydon JJ) approached the facts of this
case in a manner consistent with double renvoi, which called for consideration of the Chinese renvoi rule
as well as the other Chinese choice of law rules. All five confined themselves to the facts of this particular
case, asking only whether a Chinese court would look to Australian conflict of laws principles. Four of the
five (Gleeson CJ, Gummow, Hayne and Heydon JJ) concluded that if a Chinese court applying General
Principles art 146 were to apply Australian law, it would apply Australian domestic law and not Australian
choice of law principles. The fifth member of this group, Kirby J, disagreed, saying that there was
insufficient evidence to come to any conclusion about whether China had a renvoi rule.

13. CONT..
• In other words, Gleeson CJ, Gummow, Hayne and Heydon JJ concluded that Chinese
law has no renvoi rule or would reject renvoi. As a result, the ‘infinite regression’
problem did not arise; it only occurs if both laws use a double renvoi approach.
Gummow, Hayne and Heydon JJ all said that it was not necessary to say anything
about what should be done if double renvoi does lead to infinite regression; their
task was only to decide the case before them, not to provide a complete theory of
how to deal with renvoi. Kirby J agreed with this proposition. Gleeson CJ said
nothing about it. Thus, none of the five Justices who used double renvoi on the facts
of this case was prepared to commit to using it in all cases.

14. DRAWBACK OF FOREIGN LAW THEORY
• (1) Foreign court theory / double renvoi does not necessarily ensure uniform results.
Uniform result will be produced only if the theory is accepted by one country and
rejected by the other. In case of rejection by both countries, there will be interminable
reference forth 7 back, as Cheshire says “ an international game of lawn tennis”.
• (2) Foreign court theory is difficult to apply It requires the English judge to ascertain
what precisely will be done by the foreign judge. One difficulty is to ascertain whether
partial renvoi is accepted / repudiated by the foreign law. Second difficulty is to
ascertain the national law when a country have dual citizenships. For e.g. : In countries
like America, where there are several territorial systems of law within the same
country, it is meaningless to speak of national law.

15. COLLIER VS RIVAZ
• A” a British subject, died domiciled in Belgium, made a will which was valid according
to Belgian law. At that time the validity of will should be tested by the law of the place
where the testator was domiciled at the date of his death. If the case were to arise in a
Belgian Court, and the Court would apply the English law as the law of nationality.
• The validity of will was tested by English law and the will was held valid. Sir Herbert
Jenner in the course of his judgement said : “the court sitting here decides from the
evidence of persons skilled in that law (i.e. Belgian law) and besides as it would if
sitting in Belgium”
• Similar case laws: In Re Annesley (1926 Ch.’692) - English and French law, validity of
will, partial renvoi acceptance by French, will declared invalid.