Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter R.11: Renvoi

Michael Sonnentag

I. Concept and notion

1. References to the conflict-of-laws rules or references to the substantive law

The problem of renvoi concerns the question of whether a reference to a foreign legal system encompasses that system’s substantive law or its conflict-of-laws rules. In the first case, the substantive law of the designated state is applicable. However, if the reference directs to the conflict-of-laws rules, there are three possibilities. First, this law may refer to itself, in that according to this law, for example, the nationality or habitual residence are also relevant for determining the applicable law. In such a case, the substantive rules of the law, designated by the law of the forum (→Lex fori), are applicable. The so-designated law accepts the reference by the law of the forum. This also holds true in cases where the second law does not utilize the same →connecting factor such as nationality, but a different connecting factor such as habitual residence, that also directs to itself. Second, it is possible that the designated law itself refers back to the law of the forum, or as a third possibility refers further to a yet third law. In the latter case, the additional question arises of whether only remissions to the law of the forum (→Lex fori) or also transmissions to the law of a third country have to be observed.

p. 1538Both legal problems – that is, the above-mentioned question of whether a reference to a foreign legal system encompasses that system’s substantive law or its conflict-of-laws rules, and the problem concerning remissions and transmissions – are collectively known as renvoi.

2. Remission to the law of the forum

In cases of remission to the law of the forum, the next question is whether the forum will accept and apply its own substantive law. This is the solution adopted by most legal systems that employ the doctrine of renvoi. German law, for example, accepts references to German law and applies German substantive law even if, according to German conflict-of-laws rules, the law of another country applies (see art 4(1), sentence 2 of the Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche of 21 September 1994, BGBl. I 2494, as amended, henceforth EGBGB)) (→Germany). This solution also holds true for example in →Austria, →France, →Italy, →Bulgaria, →Romania, →Slovenia, →Estonia, →Latvia, →Croatia, →Bosnia and Herzegovina, →Serbia and →Turkey.

By contrast, according to the so-called doctrine of double renvoi, the case will be decided in the manner of a judge in the state to which the law of the forum refers. This is because a legal system that applies the doctrine of double renvoi declines remission to its own conflict-of-laws rules and instead applies the substantive law of the state to which the conflict-of-laws rules of the lex fori refer. Japanese courts used to decide at least partially in this way until the reform of Japanese private international law in 2006.

The so-called foreign court theory involves yet another step. According to this theory, the judge has to decide the case in the same manner as a judge of the state whose law is applicable by virtue of the forum’s conflict-of-laws rules. This theory goes a step beyond the doctrine of double renvoi because the judge even approaches the question of renvoi in the same way as a judge of the state to which the law of the lex fori refers. The foreign court theory was developed in England and is still applicable, for example, in England, →Australia and Louisiana.

3. Transmission to a third law

In cases of transmission to a third legal system, the substantive law of the third system will be applied when the reference to the third system covers only the substantive rules of that system. If the reference to the third system covers only the conflict-of-laws rules of that legal system, the possibilities are the same as where the law of the forum refers to the conflict-of-laws rules of another legal system: the third legal system can accept the renvoi, it can refer back (to the law of the forum or the second system) or it can refer to a fourth system. The question of whether also these references back to the first or the second system or the reference further to a fourth system have to be followed cannot be answered uniformly because there are myriad possibilities to reach a decision (see Michael Sonnentag, Der Renvoi im Internationalen Privatrecht (Mohr Siebeck 2001) 15 ff, 291 ff, 297 ff, 300 ff).

II. Historical development

The problem of renvoi was primarily seen in jurisprudence. Apart from a few earlier decisions in the 17th and 18th centuries, the courts of various countries began during the 19th century to examine the question of whether a remission by the foreign law to the →lex fori has to be followed. One of the most famous first decisions is the case Forgo (Cass. civ., 24 June 1878 (arrêt Forgo), Sirey 1878.1.429–431), decided by the French Cour de cassation. François-Xavier Forgo was born in Bavaria in 1801 and died in France in 1869. Forgo had not created a will, so legal succession was applied. According to Bavarian law, relatives of Forgo’s mother would have been appointed as heirs, whereas according to French law, the estate passed to the French treasury. Starting from French private international law as →lex fori, Bavarian law was designated because Forgo originated from Bavaria. Forgo had no French domicile permit and accordingly lacked legal domicile in France. However, according to Bavarian private international law, the actual domicile – and not the legal domicile–was decisive, so that Bavarian law referred back to French law. Accordingly, French substantive law was applied by the French Cour de cassation with the consequence that Forgo’s estate passed to the French treasury. Subsequently, the decision of the Cour de cassation was vehemently criticized in legal literature, on the grounds that p. 1539the renvoi was utilized to encourage a particular substantive result, ie inheritance by the French treasury instead of the relatives of Forgo’s mother.

The first academic essays on renvoi were published shortly after the Forgo decision, with one of the first scholars to publish being Pasquale Stanislao Mancini (→Mancini, Pasquale Stanislao) in 1879. From its very outset, the renvoi discussion was highly controversial.

Also in the second half of the 19th century, the first codifications of the doctrine of renvoi were created. The very first codification to contain the renvoi doctrine was the Legal Code in the Canton of Zurich in Switzerland. This regulation set the example for various Swiss cantonal codes, which were themselves replaced by Swiss federal law in 1891. In 1894 the renvoi doctrine was introduced in the Marriage Act of Hungary and in 1896 in the German EGBGB.

III. Reasons for and against the doctrine of renvoi

1. International uniformity of decisions

The doctrine of renvoi serves the purpose of achieving international uniformity of decisions by strengthening the likelihood that a case will be decided in a uniform manner irrespective of where an action is brought. International uniformity of decisions holds two important advantages. First, application of the same law irrespective of the competent court helps to avoid limping legal relationships, ie legal relationships which are recognized in one country but not in another. Second, it enhances the legal certainty and predictability of the applicable law. Parties to an international relationship accordingly know the law that governs their legal relationship. Naturally, renvoi does not always achieve international uniformity of decisions, but its application at least strengthens the likelihood of such uniformity (Michael Sonnentag, Der Renvoi im Internationalen Privatrecht (Mohr Siebeck 2001) 116 ff).

2. Homeward trend

In addition to international uniformity of decisions, a reference to conflict-of-laws rules serves the so-called homeward trend, in that it leads to the application of the lex fori in cases of remission rather than in cases of exclusive reference to substantive law. In the latter case, references to a foreign law always direct to the application of foreign substantive law. However, in most cases it is easier to apply foreign private international law and the substantive law of the forum than the substantive law of a foreign country. This is because judges are naturally more familiar with the application of their own (substantive) law, whereas the ascertainment and application of foreign (substantive) law poses difficulties (Michael Sonnentag, Der Renvoi im Internationalen Privatrecht (Mohr Siebeck 2001) 141 ff) (→Foreign law, application and ascertainment).

3. Correction of substantive law which is contrary to the ordre public by the way of renvoi?

In contrast, disapplying the substantive law of a foreign country because it triggers results that are contrary to the ordre public of the forum is no purpose of renvoi. The appropriate means to correct a substantive result which is contrary to the ordre public is not renvoi, but the ordre public itself (→Public policy (ordre public)). In contrast, application of the doctrine of renvoi would break with accepted principles of private international law (see Jan von Hein, ‘Der Renvoi im europäischen Kollisionsrecht’ in Stefan Leible and Hannes Unberath (eds), Brauchen wir eine Rom 0-Verordnung? (Jenaer Wissenschaftliche Verlagsgesellschaft 2013) 341, 347).

4. Undermining specific substantive ideas of justice

In contrast to the interests arguing for references to conflict-of-laws, the interest of not undermining substantive ideas of justice to be implemented by conflict-of-laws rules militates in favour of a reference to substantive law. However, conflict-of-laws rules are always intended to implement ideas of substantive justice in cases with a relationship to foreign countries. Accordingly, such an undermining only comes into question when conflict-of-laws rules implement special substantive ideas of justice. That is the case when the lawmaker creates a certain connection on special substantive grounds. This holds true, for example, in cases of alternative connecting factors, because the lawmaker chooses more than one →connecting factor in provisions intended to obtain a specific substantive result. The formal validity of p. 1540legal acts, for example, is governed by the law of the place where the contract was made (lex loci contractus) or the law applicable to the main issue (lex causae). The lawmaker chooses this alternative connecting factor in order to support the formal validity of the legal act. This purpose would be frustrated if a legal act were formally valid only according to the lex causae and not the lex loci contractus, whereas the conflict-of-laws rules of the lex causae would direct the case to the lex loci contractus, with the ultimate effect that the legal act would not be formally valid in consequence of the renvoi. The question whether such special substantive ideas of justice exist is an issue of the specific subject matter of the particular conflict-of-laws rule (Michael Sonnentag, Der Renvoi im Internationalen Privatrecht (Mohr Siebeck 2001) 148 ff, 150 ff).

5. Decision between provisions referring to the conflict-of-laws rules and provisions referring to substantive law due to a balancing of interests

There is an inherent tension between the interests that speak in favour of the doctrine of renvoi, ie the achievement of international uniformity of decisions and the homeward trend, on the one hand, and those that militate against it, ie the implementation of specific substantive ideas of justice by conflict-of-laws rules, on the other hand. These interests cannot be realized simultaneously. A legislative choice to apply the doctrine of renvoi accords priority to the achievement of international uniformity of decisions and the homeward trend over the implementation of specific substantive ideas of justice by means of conflict-of-laws rules. By contrast, a legislative provision for references to substantive law accords precedence to the implementation of substantive ideas of justice by means of conflict-of-laws rules (Michael Sonnentag, Der Renvoi im Internationalen Privatrecht (Mohr Siebeck 2001) 164 ff).

IV. Legal sources and current regulation

1. National

a) Exclusion of renvoi

Some legal systems exclude renvoi, with the consequence that remissions and transmissions are impossible. Such regulations are found, for example, in →Denmark, →Greece and →Sweden, in some Arabic countries (eg in →Egypt, Jordan, Kuwait, →Tunisia, Syria and Iraq), in the Canadian province of Quebec (→Canada) and also in some Latin American countries (eg →Brazil and →Peru).

b) Acceptance of renvoi

Most legal systems accept the doctrine of renvoi, but they differ regarding their regulatory systems. This is shown by the fact that in principle some of these countries enable references to conflict-of-laws rules, but – to different degrees – also arrange references to substantive law if it is expressly so ordered in the law or if it follows from the rationale of the conflict-of-laws rule without an express legislative provision. Such regulations are found in →Argentina (remissions and transmissions), →Austria (remissions and transmissions), →Bosnia and Herzegovina (remissions and transmissions), →Bulgaria (remissions and transmissions), →Cuba (remissions and transmissions), →Croatia (remissions and transmissions), →Estonia (only remissions), →Finland (remissions and transmissions), →France (remissions and transmissions), →Hungary (only remissions), →Iran (only remissions), →Italy (remissions and transmissions), →Latvia (remissions and transmissions), →Luxembourg (remissions and transmissions), →Macedonia (remissions and transmissions), →Poland (only remissions), →Romania (remissions and transmissions), →Slovenia (remissions and transmissions) and moreover in →Serbia (remissions and transmissions), South →Korea (only remissions), →Thailand (only remissions) and →Venezuela (remissions, but transmissions only in the case of the acceptance by the law of the third state). English (remissions and transmissions), Irish (remissions and transmissions), Australian (remissions and transmissions) and Canadian courts also have decided for references to conflict-of-laws rules (→Australia, →Canada, →Ireland, →United Kingdom).

c) Provisions to substantive law with a limited number of exceptions

In principle other countries implement references to substantive law, but accept a limited number of exceptions in cases of provisions in law or due to jurisdiction. This is the case, for example, in the →NetherlandsPortugal (remissions and transmissions), →Lithuania (only remissions), →Switzerland (remissions and transmissions) and →Turkey (remissions and transmissions in the rights of individuals p. 1541and in family law, but a transmission is always regarded as a reference to the substantive law of the third country).

d) Decision between acceptance and exclusion of renvoi due to specific criteria

Some legal systems follow a separate path by distinguishing between references to substantive law and conflict-of-laws rules depending on special criteria. Such systems include the law of the federal district of Mexico and the Mexican federal state Nuevo León (remissions and transmissions as references to substantive law) as well as the law of the Slovak Republic (remissions and transmissions) (→Mexico; →Slovakia). They also include German law (remissions and transmissions), which contains a regulation in art 4(1), sentence 1 EGBGB according to which in the case of a reference to a foreign country, that country’s conflict-of-laws rules should be applied, provided such application is not contrary to the rationale of the reference (→Germany). The consequence is that the German legislature – aside from the circumstances in which renvoi is expressly excluded – makes no express decision between references either to substantive law or conflict-of-laws rules. It has to be determined for each conflict-of-laws rule whether renvoi is in conformity with or contrary to the rationale of that conflict-of-laws rule. To arrive at this determination, the concerned interests have to be balanced for each particular conflict-of-laws rule. More specifically, it has to be determined whether the legislature gives priority to the interests that accompany the renvoi doctrine, ie uniformity of decisions and homeward trend, or those following from an exclusion of renvoi. The latter is the case when it is crucial for the legislature not to have specific substantive ideas of justice undermined by conflict-of-laws rules rather than achieving international uniformity of decisions. If the legislature instead wishes to achieve international uniformity of decisions, the provision refers to conflict-of-laws rules. The question of which interests are preferred by the legislature is a matter of interpretation. The more a conflict-of-laws rule is supported by substantive ideas of justice, the less plausible it is to relinquish these ideas in favour of the observance of a renvoi. The interest of achieving international uniformity of decisions is more important when status relationships are involved and less important regarding legal matters which are directed towards a unique liquidation (see Michael Sonnentag, Der Renvoi im Internationalen Privatrecht (Mohr Siebeck 2001) 95 ff, 164 ff).

2. International

In international treaties containing uniform conflict-of-laws rules, renvoi is usually excluded. As a result of the harmonization within the concerned Member States, the problem of renvoi no longer arises among these states.

Exceptions to this rule are rare but do exist: for example, renvoi is accepted in art 1 of the Hague Marriage Convention of 1902 (Convention of 12 June 1902 relating to the settlement of the conflict of the laws concerning marriage) that remains in force between →Germany and →Italy, as well as in art 2(1), sentence 2 of the Geneva Convention of 7 June 1930 for the Settlement of Certain Conflicts of Laws in connection with Bills of Exchange and Promissory Notes (143 LNTS 317), in art 2(1), sentence 2 of the Geneva Convention of 19 March 1931 for the Settlement of Certain Conflicts of Laws in connection with Cheques (143 LNTS 407), in art 3(1)(a) of the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, 1343 UNTS 89), as well as in art 21(2) of the Hague Child Protection Convention (Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, 35 ILM 1391).

However, international uniformity of decisions should not be neglected in relation to third countries. Therefore, conflict-of-laws rules in treaties, as far as they are enshrined as lois uniformes, de lege ferenda, should implement references to conflict-of-laws rules in status matters. Uniformity of decisions can be achieved with references to conflict-of-laws rules in treaties – concerning third countries – rather than with references to substantive law if conflict-of-laws rules in treaties are not to implement specific substantive ideas of justice.

3. European

The provisions in the Rome I Regulation (see art 20) (Regulation (EC) No 593/2008 of the European Parliament and of the Council of p. 154217 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L 177/6; →Rome Convention and Rome I Regulation (contractual obligations)), →Rome II Regulation (see art 24) (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40) and →Rome III Regulation (see art 11) (Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [2010] OJ L 343/10) as well as in the Maintenance Regulation (Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, [2009] OJ L 7/1) in association with the Hague Maintenance Protocol 2007 (see art 12 Hague Maintenance Protocol) (Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations, [2009] OJ L 331/19) are references to substantive law and hence exclude renvoi (→Maintenance obligations). Furthermore, the provisions in the Matrimonial Property Regulation (see art 32) (Council Regulation (EU) No 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, [2016] OJ L 183/1) and in the Registered Partnerships Property Regulation (see art 32) (Council Regulation (EU) No 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships, [2016] OJ L 183/30) only provide for references to substantive law ( →Matrimonial property, →Registered partnerships).

In contrast to these regulations, the provisions of the Succession Regulation (→Rome IV Regulation) (Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, [2012] OJ L 201/107) refer to the substantive rules unless the rules of the designated third state make a renvoi to the law of a Member State of the Succession Regulation or if the rules of the designated law by the Succession Regulation make a renvoi to the law of another third state which would apply its own law (see art 34(1) Succession Regulation). But the provisions listed in art 34(2) Succession Regulation – for example, concerning the formal validity of dispositions of property upon death made in writing according to art 27 Succession Regulation – only refer to the substantive law.

Reasons for a different treatment of renvoi in the Succession Regulation and in the Matrimonial Property Regulation are neither evident nor indicated. As a result, a coherent legal regulation of renvoi in European private international law is still missing.

V. Basis for a coherent regulation in European private international law

1. Distinction between provisions which are favourable to renvoi and which are hostile to renvoi?

De lege ferenda, a fundamental distinction between provisions which are favourable to renvoi and those which are hostile is inadvisable (see Jan von Hein, ‘Der Renvoi im europäischen Kollisionsrecht’ in Stefan Leible and Hannes Unberath (eds), Brauchen wir eine Rom 0-Verordnung? (Jenaer Wissenschaftliche Verlagsgesellschaft 2013) 341, 358; Michael Sonnentag, Der Renvoi im Internationalen Privatrecht (Mohr Siebeck 2001) 108–112; dissenting Paul Heinrich Neuhaus, Die Grundbegriffe des Internationalen Privatrechts (2nd edn, Mohr 1976) § 36).

At first sight it would seem that the principle of party autonomy is hostile to renvoi because the parties, assuming they choose the applicable law, as a rule intend the substantive law of a specific state. This can differ in individual cases, eg in the case of an arbitral procedure (§ 1051(1), sentence 2 German Code of Civil Procedure (Zivilprozessordnung of 5 December 2005, BGBl. I 3202, as amended)). Concerning the choice of a specific legal system, it is necessary in contrast to ordinary civil proceedings to draw a distinction because arbitration courts do not have to emanate from a specific national law, whereas the judge in ordinary civil proceedings has to emanate from the lex fori.

The →connecting factor of →nationality is not in itself favourable to renvoi, just as the connection to the domicile or habitual residence p. 1543(→Domicile, habitual residence and establishment) is not in itself hostile. This is because the domicile or habitual residence establishes a factual legal relation between a person and a legal system, while the connection to citizenship establishes a legal relation to a specific state. If the law of the forum designates the law of nationality but does not govern civil legal consequences to the citizenship, then a renvoi which is ordered by the law of nationality should rather (albeit not definitely) be observed. In contrast, this rationale for renvoi does not exist for the connection to the domicile or habitual residence. Nonetheless, renvoi may be appropriate concerning the connection to the domicile or habitual residence, eg with a view to achieving uniformity of decisions. Therefore, in view of provisions which are favourable and those which are hostile to renvoi, generalizations are not advisable in cases of connections to citizenship and to the domicile or habitual residence.

2. Distinction between areas of law

Rather than either accepting or excluding renvoi, the European legislature should adopt a more nuanced approach. The same holds true for international treaties containing uniform conflict-of-laws rules. So far as status matters are concerned, in particular in family law and the rights of individuals, but also in the law of companies, the risk of limping legal relationships arises. In these fields of law, recognition of renvoi makes sense with a view to achieving international uniformity of decisions. This also holds true for international property law and succession law. But if the implementation of specific substantive ideas of justice is more important than the international uniformity of decisions, renvoi should be excluded.

In the field of international contract law and the law of non-contractual obligations, renvoi is no longer important. Since conflict-of-laws rules under the law of obligations have become progressively more elaborate and implement specific ideas of justice in private international law, these ideas should not be undermined by renvoi. Thus, renvoi should be excluded in the law of obligations.

3. Multiple connecting factors

a) Alternative connecting factors

If conflict-of-laws rules apply alternative →connecting factors, the legislature should permit renvoi, because such rules are based on the favourability principle.

De lege lata, renvoi should not be applied in these cases to achieve a certain substantive result when it would be achieved only with the aid of renvoi. Otherwise the legislature’s decision for several certain connecting factors – and the exclusion of renvoi in such cases – would be ignored. Currently, alternative connecting factors are provided, for example, in art 11(1) Rome I Regulation or art 27 Succession Regulation. If, for example, other alternative connecting factors were admitted in addition to the alternative connecting factor of form, the protective function of formal requirements (→Formal requirements and validity) – at least for one party – would be ignored.

De lege ferenda, the European legislature could also consider introducing renvoi in favorem, ie in order to obtain an intended substantive result. The alternative connecting factors concerning the formal validity of wills, for example, intend to fulfil the intentions of the deceased whenever possible. If only the observance of the renvoi directs to a substantive law ensuring formal validity, could the legislature adopt a regulation which provides that a renvoi in favorem to the formal validity of a will has to be observed, whereas this solution is not possible de lege lata.

b) Subsidiary connecting factors

Regarding conflict-of-laws rules that utilize subsidiary →connecting factors, a distinction has to be drawn. If the subsidiary connecting factor is made for reasons of conflict of laws, the provision de lege ferenda should permit renvoi, provided the provision does not exclude renvoi for other reasons. Such a subsidiary connecting factor for reasons of the conflict of laws exists when the first step of the cascade is not able to determine the applicable law. That is, for example, the case when a divorce is primarily linked to the common habitual residence or common nationality of the spouses, but when the spouses have neither. In these cases at least one further – namely subsidiary – connecting factor is required in order to determine the applicable law.

Concerning a subsidiary connecting factor for reasons of substantive law, ie to achieve a certain substantive result, de lege ferenda, a reference to conflict-of-laws rules should exist at the first step of the cascade, the so-called primary connection, provided there is no reference to substantive law for special reasons irrespective of the subsidiary connection. Concerning the p. 1544further provided subsidiary connecting factors, de lege ferenda, there should be a reference to substantive law because this reference is selected for substantive reasons, ie to achieve a certain substantive result. That is, for example, the case when the maintenance for a person is primarily linked to the law of the country in which the creditor has habitual residence, but this law does not grant the title of maintenance so that out of substantive reasons, namely to be preferably entitled to maintenance, one or even more connecting factors are provided subsidiarily in order to achieve the intended substantive result.

c) Cumulative connecting factors

Finally, if conflict-of-laws rules rely on cumulative →connecting factors, a distinction is necessary. If a cumulative connecting factor primarily serves to achieve international uniformity of decisions, the provision de lege ferenda should refer to conflict-of-laws rules. If, in contrast, the function of the cumulative connecting factor exists in impeding a certain substantive result or at least making it more difficult, the cumulative connecting factor de lege ferenda should be a reference to substantive law.

4. Accessory connecting factors

The question of whether accessory →connecting factors de lege ferenda should provide references to the substantive law of the controlling statute cannot be answered uniformly in all cases because accessory connecting factors can pursue varying purposes. It is possible that the accessory connecting factor strives for a uniform substantive assessment of legal issues that belong together – for example, the accessory connection of the formal validity to the lex causae. This suggests a reference to substantive law of the controlling statute because this unity would be destroyed by the doctrine of renvoi. However, it is also conceivable that the accessory provision is intended to extend the area of application of a conflict-of-laws rule without the uniform substantive assessment being absolutely necessary. Then a renvoi by virtue of a deviating →classification (characterization) would not be barred if the controlling statute expresses the renvoi for the dependent statute. Potentially the reference to another conflict-of-laws rule is merely intended to avoid repetitions of the wording of the law. In that case it is a pure legislative technique so that the renvoi is also not barred. It depends on the purpose of the accessory connecting factor in relation to the interest of achieving international uniformity of decisions if the accessory connecting factor is a reference to substantive law or to conflict-of-laws rules. It is necessary to draw a distinction between the question of whether the dependent statute concerning accessory connecting factors accessorily refers to the conflict-of-laws rules or to the substantive law of the controlling statute on the one hand, and the question whether the controlling statute has to be determined by a reference to substantive law or by a reference to conflict-of-laws rules on the other hand. The accessory connecting factor may be a reference to the substantive law of the controlling statute; however, a renvoi has to be borne in mind for the determination of the controlling statute. As far as a renvoi has to be observed for the ascertainment of the controlling statute, this renvoi indirectly affects the ascertainment of the dependent statute if the reference to the controlling statute is a reference to the substantive provisions of this law. By contrast, if the accessory connected statute refers to the conflict-of-laws rules of the controlling statute, a renvoi which has to be observed for the determination of the controlling statute can be considered. The answer to the question of whether it has to be observed depends on the reasons why the legislature has established an accessory connection. Therefore, this question cannot be answered uniformly in all cases (Michael Sonnentag, Der Renvoi im Internationalen Privatrecht (Mohr Siebeck 2001) 180 ff).

5. Connecting factor of the closest connection

Concerning the →connecting factor of the closest connection, the decision between acceptance and exclusion of renvoi depends on the answer to the question of which purpose the legislature pursued with the connecting factor to the closest connection. If the connecting factor to the law of the closest connection is an escape clause to a rigid connecting factor and the escape clause directs to a rigid connection again – in other words, a hardly flexible connecting factor – then this by itself is no reason for a reference to substantive law because in this case the concrete connection is again determined by typecasting criteria. If the meaning of the connecting factor to the closest connection exists in determining the applicable law individually, which means under consideration of all circumstances of the individual case, then p. 1545the escape clause refers to the substantive law because otherwise the individual connection would again be questioned. A closer connection than the closest does not exist.

6. Introduction of a clause according to which provisions to a foreign law refer to its conflict-of-laws rules, unless it is contrary to the rationale of the provision

As far as possible, the European legislature should decide for each conflict-of-laws rule whether a provision refers to substantive law or to the conflict-of-laws rules.

Nevertheless, a clause should be introduced such as art 4(1), sentence 1 EGBGB, according to which provisions to a foreign law refer to its conflict-of-laws rules unless it is contrary to the rationale of the provision (Michael Sonnentag, Der Renvoi im Internationalen Privatrecht (Mohr Siebeck 2001) 271 f, 289 f). Since this rule has proved to be successful and enables flexible results, this regulation should persist and be considered at a European level. There are two reasons for this. First, there will always be gaps in the legislative framework which will have to be filled. Even if the European legislature has the intention of adopting a comprehensive system of private international law or even a Code on Private International Law, new fields of law will be created. It is therefore preferable to have a general rule that decides whether a conflict-of-laws rule refers to the substantive law or the conflict-of-laws rules of the designated country. Second, also in the future, there will be cases that require a purposive interpretation of conflict-of-laws rules. This in turn can lead to the creation of a new conflict-of-laws rule. In these cases the question of renvoi will again have to be answered. Such a clause, according to which provisions to a foreign law refer to its conflict-of-laws rules unless it is contrary to the rationale of the provision, will also help to find appropriate results for these conflict-of-laws rules.

Literature

  • Eric Agostini, ‘Le mécanisme du renvoi’ (2013) 102 Rev.crit.DIP 545;

  • Adrian Briggs, ‘In Praise and Defence of Renvoi’ (1998) 47 ICLQ 877;

  • Angelo Davì, ‘Le renvoi en droit international privé contemporain’ (2010) 352 Rec. des Cours, 9;

  • Dieter Henrich, ‘Der Renvoi: Zeit für einen Abgesang?’ in Herbert Kronke and Karsten Thorn (eds), Grenzen überwinden – Prinzipien bewahren. Festschrift für Bernd von Hoffmann (Gieseking 2011) 159;

  • David Alexander Hughes, ‘The Insolubility of Renvoi and its Consequences’ (2010) 6 J Priv Int L 195;

  • Larry Kramer, ‘Return of the Renvoi’ (1991) 66 N.Y.U.L.Rev. 979;

  • J Georges Sauveplanne, ‘Renvoi’ in Kurt Lipstein (ed), International Encyclopedia of Comparative Law, Vol. III: Private International Law (JCB Mohr 1990) ch 6;

  • Haimo Schack, ‘Was bleibt vom renvoi?’ [2013] IPRax 315;

  • Dennis Solomon, ‘Die Renaissance des Renvoi im Europäischen Internationalen Privatrecht’ in Ralf Michaels and Dennis Solomon (eds), Liber Amicorum Klaus Schurig zum 70. Geburtstag (Sellier 2012) 237;

  • Michael Sonnentag, Der Renvoi im Internationalen Privatrecht (Mohr Siebeck 2001);

  • Jan von Hein, ‘Der Renvoi im europäischen Kollisionsrecht’ in Stefan Leible and Hannes Unberath (eds), Brauchen wir eine Rom 0-Verordnung? (Jenaer Wissenschaftliche Verlagsgesellschaft 2013) 341.