British Institute of International and Comparative Law

In Praise and Defence of Renvoi Author(s): Adrian Briggs Reviewed work(s): Source: The International and Comparative Law Quarterly, Vol. 47, No. 4 (Oct., 1998), pp. 877884 Published by: Cambridge University Press on behalf of the British Institute of International and Comparative Law Stable URL: http://www.jstor.org/stable/761549 . Accessed: 07/03/2013 17:02
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SHORTER ARTICLES, COMMENTS AND NOTES

IN PRAISE AND DEFENCE OF RENVOI
IT is sometimes asked whether English private international law has a theory, or, if

it has a theory, what this actually means. This may be a question for some, but it may have no answer. The purpose of this article is to take issue with the claim, sometimes made, that since Spiliada' the subject has become less theoretical. To be sure, the deplorable quality of recent law reform lends powerful support to the proposition that concern for the theory of the subject (indeed, any form of reflective intelligence) has been notably lacking. But Spiliada may have been one of those defining moments in which the large theory of the English conflict of laws underwent a dramatic change and shone a light into areas of the subject which had been peacefully gathering dust. One of the problems of the conflict of laws in general, and with the way it is taught and understood in universities in particular, is that it is rigidly compartmentalised. This is a wholly rational starting point: indeed, it is difficult to see any other. But equally there is no doubt that this is not a rational finishing point; and this will be the theme of the article. Thus it comes about that we consider rules of jurisdiction separately from rules on choice of law. We ask, for example, what the choice of law for tort claims ought to be without asking, before we give an answer, which will be those cases-measured in jurisdictional terms-to which the rules are to be applied. For a choice of law rule which is skewed in favour of English substantive law will look rather insular and inappropriate if it is applied to all torts without any regard to the intentions of the parties or to where these were committed. But it will look much less odd if the only cases adjudicated by reference to those rules are those in which the tort was committed in England or in which both parties freely choose and agree to the jurisdiction of the English courts.2 To some extent we have always treated our subject in this way; but we have also shown that we can detect and correct errors in this way of thinking. A brilliant example of repentance of error is to be seen in the way that jurisdiction and judgments are now taught and thought about as adjacent weeks' work, and are written and legislated about as if they were twins. Yet Dr Morris3presented jurisdiction and judgments as the bookends to a treatise otherwise dealing with choice of law. As it was written, so was it taught. With the benefit of hindsight it is astonishing that the old structure lasted as long as it did; and even when the structural change was made, the proximate cause of it was said to be the arrival of the Brussels Convention rather than a reassessment of the internal structure of the common law. Indeed, there are those who still strain at the failure to make a further set of connections,
1. Spiliada Maritime Corporation v. Cansulex Ltd [1987] A.C. 460, HL.

2. Becausethe plaintiff choosesto instituteproceedings in England, andthe defendant elects to submitto the jurisdiction andnot to seek a stayof proceedings. 3. As Editorof the 6th to 10theditionsof Dicey andMorris,TheConflict of Laws.The 11thedition(1987)wasprepared underthe GeneralEditorship of Dr Collins,andhe united the topicsof jurisdiction andjudgments withinPartIII.

877

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where the role of Spiliada in relation to the recognition of foreign judgments remains to be analysed: if the concept of the natural forum has come to dominate the common law's assessment of when the exercise of jurisdiction is proper, why, one might ask, has this not been carried over into the common law rules for recognition ofjudgments?4 But even today we still look on choice of law and on jurisdiction as if each was self-contained and neither was coloured by the other. It is expedient, therefore, to look at one fundamental but unfashionable principle of choice of law, and to see whether it has any relationship at all with, or throws any light on, rules of jurisdiction. It is the doctrine of renvoi. A. The Doctrine of Renvoi

Conflicts lawyers examine the doctrine of renvoi prior to, but probably only as part of, techniques for choice of law. It is often done in a rather hasty way, almost as if discussing something faintly embarrassing or distasteful. Evidence for this is not hard to find. The baleful glare of Dr Morris fell on the doctrine, and in England it never really recovered from the shock. Renvoi was regarded as a distortion of principled choice of law; as a complication to, and an unjustifiedsubversion of, our preference for choice of law. More cheerfully, the editors of a brilliant new Australian collection of cases and materials5 describe renvoi as "a subject loved by academics, hated by students and ignored (when noticed) by practising lawyers (including judges)". Moreover, the Law Commission, for reasons which do it no credit at all, has a tendency to attach a no-renvoi clause to almost any reform with which it is concerned. It appears, to hilariously bizarre effect, in section 1(5) of the Foreign Limitation Periods Act 1984, where the effect is that when a dispute requires the application of a choice of law rule which is interpreted in a renvoi sense-say succession to foreign land-the very thing the Act expressly forbids is to deal with the issue of limitation as the relevant foreign court would. It appears, to shamefully blinkered effect, in that Part of the Private International Law (Miscellaneous Provisions) Act 1995 dealing with choice of law in tort. This can only be seen as representing a failure of intellect and imagination. The case for the rescue of renvoi is not simply nostalgia. The development of the private international law of torts provides a telling illustration of just how the various parts of the conflict of laws fit together to make a complex and sophisticated machine, and of how an untrained engineer can ruin it all in minutes. It is a play in six acts. (1) Prior to 1970, jurisdiction in tort cases depended simply on service of the writ; and choice of law meant that only English domestic law was to be applied, without much organised concern for the civil law of the place where the tort occurred.6 Courthas askeditselfa verysimilar 4. In Canada the Supreme question,andhascome Ltd v. De Investments close to acceptingthat a link in these termsdoes exist:Morguard
Savoye [1990] 3 S.C.R. 1077; and in Amchem v. British Columbia Workers' Compensation Board [1993] 1 S.C.R. 897 the pivotal role of the doctrine of forum non conveniens was 5. Davies, Ricketson and Lindell, Conflict of Laws: Commentary and Materials (1997),

to weavea coherent Theseattempts inrelationto thelawon anti-suit injunctions. recognised patternof rulesto governthesecloselyconnectedissuesare greatlyto be applauded. para.7.3.1.
6. The Halley (1868) L.R. 2 P.C. 193; Machado v. Fontes [1897] 2 Q.B. 231, CA.

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(2) In 1970 a majority of the House of Lords7was persuaded that this was indefensible, and decided to introduce into the common law a condition that there must also exist civil liability under the lex loci delicti commissi. Why was this? Because, as Lord Wilberforce made very clear indeed," it feared the arrival of the forum shopper: the Maltese who came to England to sue, hoping thereby to avoid the rule of Maltese law denying damages for pain and suffering; and the Ontarian, hoping in his turn to avoid the rule of Ontario law about guest statutes. The historical choice of law rule lent itself to forum shopping; and the changes to the choice of law rule were meant to prevent forum shopping. (3) The rule was new, so it was fair to ask this: what was meant by LEX loci delicti commissi? Was it the law which a Maltese court would itself have applied, as distinct from local, say Maltese, domestic law? If the speech of Lord Wilberforce meant what it said, the answer had to be that it was a reference to the totality of the law which a Maltese court would apply."If this were so, renvoi and the new choice of law rules would provide a good and sturdy defence against forum shopping. For if an English court would give a plaintiff only what a Maltese judge would give, there would be no incentive to forum shop; if an English court would do something different from what a Maltese judge would do, the incentive might still remain. (4) But before anyone had time to think this through,1'the English courts developed tailor-made rules against forum shopping which went straight to the heart of the problem, and did not seek to operate by remote control. Spiliada, and the doctrine of forum non conveniens, meant that control of forum shopping did not depend on choice of law. Forum shopping plaintiffs in tort cases could be dealt with directly: they could, on the defendant's application, be sent to the foreign court from which they had sought to escape." This being so, at this point it may have been acceptable for the lex loci to be interpreted as referring to the domestic law of the locus delicti.

7. Boys v. Chaplin [1971] A.C. 356. 8. The passage at idem, p.389D-F makes it plain that this is the reason for the change to the law; see also Lord Hodson at idem, p.378C. 9. For this was what the forum shopping expedition would be mounted to avoid. 10. Had there been more time, it might have been possible to show how the exception to the general choice of law rule crafted by Lord Wilberforce could have been made redundant. The question framed by his Lordship was whether Maltese law was "interested" in applying to the facts of the case; and it was found as a fact that it was not. The basis for this finding was unclear (see Boys v. Chaplin, supra n.7, at p.392E-F); it did not appear to involve a detailed examination of the history and purpose of the rule of Maltese law, but was rather more short in its conclusion. But this awkwardness could have been avoided by asking whether a Maltese judge would have applied his domestic law to the case had he been seised with it. If he would not have done so, applying instead the law of the common domicile, it follows easily that the Maltese rule has no interest in application. If he would have done so, it would be unthinkable that an English court should conclude that the Maltese legislator had no interest in the application of his law to the facts of the given case. Such an enquiry might have been more straightforward and rational than an excursion into the alien territory of interest analysis. 11. Note that MacShannon v. Rockware Glass Ltd [1978] A.C. 705, HL was an early example of a forum shopping plaintiff in a tort claim being despatched to where the tort was committed.

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(5) But a little bit later still the English courts lost, or substantially lost, their general2 right to deal with cases of forum shopping by recourse to the doctrine of forum non conveniens, courtesy of the Brussels Convention (and only a child could believe that the Convention has ended the sport of forum shopping). So if a plaintiff in a tort case who ought, by this way of thinking, recover only what a German court would give him now elected to sue his defendant in England, a jurisdictional solution was not available. But a choice of law solution still was; and if German law were interpreted to mean the whole of German law, there would be no problem in reaching the desirable answer. (6) Then the Law Commission took away this form of control by promoting legislation abolishing the option of using renvoil3 and giving us instead a set of rules which pay not the smallest attention to the jurisdictional rules or concerns in relation to which they will operate. The result of this piece of gratuitous vandalism is that there is no power (at least where the Convention applies) to invoke forum conveniens to get directly the "right" result in tort cases, and no power to use choice of law rules to reach it indirectly. It is impossible to regard this as progress in any intelligible sense of the word. If a plaintiff in a tort case indulges in forum shopping, there is little left in English law to stop him. It is instructive also to look briefly at choice of law in contract. The Rome Convention casts into statutory form the general view of certain common lawyers that there was no room at all for renvoi in contract. It does so, one supposes, on the footing that the intrusion of renvoi into choice of law to govern a contract runs the risk of upsetting the parties' expectations. No doubt the undisciplined use of renvoi could have done this; but the very suggestion is an Aunt Sally: no apologist for the doctrine of renvoi would have dreamed of proposing it. But take the case where the parties have not expressed a choice of law, but have stipulated a choice of court for the resolution of any disputes which may arise. What does this tell a court seised with the dispute about the law which governs the contract? The answer from the common law was a rather odd one: the choice of court was seen as raising a strong presumption in favour of the domestic law of the chosen court.14 The answer from the Rome Convention is rather odder, but is along much the same lines: according to Giuliano and Lagarde," "in some cases the choice of a particular forum may show in no uncertain manner that the parties intend the contract to be governed by the law of that forum, but this must always be subject to the other terms of the contract and all the circumstances of the case". This is very strange. For in such a case we know exactly what the parties wanted, for they expressed their choice in clear and precise terms. They wanted litigation

has removedthe doctrine 12. This is not the place to examinewhetherthe Convention root and branch,or has left to operatein a few fringeareas.As betweenthe contracting mattersit hasgone. Statesin civilandcommercial Act 1995,s.9(5). Law(Miscellaneous 13. PrivateInternational Provisions)
14. Cf. Compagnie d'Armament MaritimeSA v. Compagnie Tunisiennede Navigation SA [1971] A.C. 572, HL. 15. (1980) O.J. C282/17.

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to take place in the nominated court, and they must have wanted, for they have chosen it by inescapable inference, that law which would be applied by the judge sitting in that court. This must include his rules of the conflict of laws. The fact that they'6may later have agreed to waive the procedural obligation to sue in that court (this being how the English court may come to hear the case) does not affect the proposition that they intended when the contract was made to have that country's law-all of its law, as a judge would have been bound to apply it-govern the dispute. Yet our choice of law rules, shorn of the possibility of using renvoi, refuse to allow us to give direct effect to their expressed intentions. They tell us to do something different which may, but is not guaranteed to, produce the same result by accident. It is hard to see the legal sense of it. Now the point of the tort example is that the application of renvoi may be an essential, integral, element of a scheme to control forum shopping. Indeed, when one looks to the High Court of Australia, where the initial refusal in Oceanic Sun Line Special Shipping Co. Inc. v. Fay7 to accept Spiliada meant that the control of forum shopping in Australia could not be accomplished by jurisdictional principles, there are clear hints in some at least of the judgments in Breavington v. Godleman'8 that the lex loci delicti in a tort case means the law which would be applied by the courts at the locus delicti. This is exactly what one would expect; and it is a good example of the relationship between renvoi and principles of jurisdiction. And the point of the contract example is that it shows that whilst the unsupervised administration of a dose of renvoi might be capable of upsetting the sensible intentions of commercial men, principled use of the technique may be the only way of giving effect to them. Yet the present state of English law is that this is simply not possible. So what is it which lies behind this general lack of enthusiasm for renvoi, with the result that English legislators seek to stamp it out wherever it may be found? It is hard to say. If one considers what the doctrine seeks to achieve, it means that an English court will seek to resolve a legal dispute in the way it would be dealt with by a judge sitting in the place whose law is to be applied. It is hardly a profound point, but it appears that renvoi plays the subtler counterpart to those jurisdictional rules which seek to get the case into its natural forum by direct means. If one believes that a particular dispute should be resolved as it would be resolved by a German court, this result can be accomplished by a jurisdictional solution (by allowing the defendant to ask the judge to send the case to Germany) or by a choice of law one (by resolving it as it would be resolved by a German court). Once English law committed itself to the view that the solution to a conflict of laws may better be grounded in rules of jurisdiction (and historically, English choice of law rules are described as jurisdiction-selecting), at least one justification for renvoi becomes new and principled. It operates not as a refinement or complication to rules for choice of law, but the mechanism which supplies the intellectual harmony, or co-ordination, between rules on jurisdiction and rules on choice of law. This is not to say that it should be applied at all times and in all places; but that its 16. Or a court,whichdecides,exceptionally, not to staythe proceedings even thoughthe

plaintiff has sued in breach of the clause. 17. (1988) 165 C.L.R. 197. 18. (1989) 169 C.L.R. 41 (see Wilson, Gaudron, Toohey JJ.).

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operation should perhaps be thought of as the rule rather than the exception. Yet there appears to be an unthinking view that renvoi belongs exclusively within choice of law, and that its impact upon choice of law is malign. How unimaginative this is.

B. Renvoiand Choiceof Law

Let us now look briefly at the case for renvoi as it relates to choice of law. A prominent objection is that a renvoi means that English law chooses a law to govern a particular issue-say that the capacity of the man to marry is governed by the law considered to be the law of his domicile-but then defers to the different view on the same point of the judge who holds court at the place of domicile. In the result the English court does not apply the law which it thought should have been applicable, and the choice of law rule is displaced or overridden by a foreign one which the English court neither chose nor defined. Even the word renvoi seems to carry this not-so-subliminal message that it represents a loss of control by the English court. Put in those terms and in these times it is a telling point: English courts have choice of law rules with which they are satisfied, and they may not be happy to see these put aside in preference for the choice of law rules of a foreign country. But this is not the only way of looking at it. It is, after all, perfectly possible to argue that the English choice of law rule for capacity to marryis that it is governed by that law which would be applied to the case by a judge sitting at the place where the propositus is domiciled. Put in these terms, it would not be right to say that an English court was choosing, and then unchoosing, a law to govern the claim. Instead, it would be choosing the law by formula rather than by immediate geographic designation. What is so very wrong with that? Aside from the fact that it further goes to show renvoi as being concerned with the identification of the proper place for the resolution of the dispute, of the proper court for the issues to be resolved in, it does no more than is commonly done, for example, in contracts or other arrangements which stipulate that the principal place of business of one party shall identify law and jurisdiction. There is surely no objection to constructing choice of law rules in the same way. If we are serious about achieving a harmony of result with what would happen if the appropriate judge were deciding the question, we get there in one bound by making our immediate choice as whatever law he would apply. Acceptance of this central and pivotal role for renvoi also goes to explain one aspect of the uncertainties of the principles of characterisation which otherwise seem mysterious. Take as example the case in which H and W have married in Ruritania, with H failing to obtain the parental consent prescribed by his personal law. Any student of the subject knows that the problem posed is one of characterisation. We start from the premise that the effect of the parental consent, characterised as an issue of formal validity, is referred to the law of the place of marriage, Ruritania. So far, so good. But what exactly is it that we seek to discover from the law of Ruritania? What exactly is the question we ask our expert Ruritanian lawyer to answer as part of the factual enquiry as to the content of foreign law? In principle it may be put in a number of ways, but two are paradigm. Version (1) would be to ask whether the marriage is formally (in)valid as a matter of Ruritanian law. Version (2) would ask whether the marriage is (in)valid by reason of

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the lack of parental consent as a matter of Ruritanian law. Obviously the answer to (1) may'9be in the nature of "yes, but..."; whereas the answer to (2) will be: "Well, first we must characterise the impediment by reference to Ruritanian law, and then apply the relevant choice of law rule". Version (2) must be correct. The issue of the formal validity of marriage is a question, as even the sceptics allow, suffused by the principles of renvoi, where we seek to resolve the issue as the designated foreign judge would answer it. This aim is unlikely to be brought to fruition if we tie the foreign judge's hands with invisible ropes made from our own approach to characterisation. We must therefore ask whether the particularfactual impediment renders the marriage invalid, and allow a Ruritanian lawyer to deploy all of his laws to answer us. By contrast, in a subject area where the question does not invoke the principles of renvoi-such as whether a bare written promise is enforceable as a contract notwithstanding the absence of consideration, notarisation or seal-there is less2) concern to answer this as the foreign judge would; no reason why we should not characterise the issue as form or as essential validity as we see fit, and having identified the law to which the question is referred, ask a question framed in terms of our original characterisation. This understanding proceeds from an acceptance of the fundamental significance of renvoi to the body of the conflict of laws. We make no progress at all if we simply regard renvoi as an irritant, and try to answer questions which arise elsewhere in the subject without the benefit of the light which it shines on the conflicts process. C. Conclusion We should revert finally to the earlier topic of the relationship between choice of law and jurisdiction. The claim was that the relationship between jurisdiction and choice of law tends to be dealt with by saying: well, here are the jurisdictional rules for tort claims; here are the choice of law rules for tort claims.21 It seems to me that another insight which one gets from Spiliada is that choice of law rules may be indicators of the appropriateness of particularjurisdictions, and that choice of law rules may be seen as an aid to locating the right court. Certainly the way Spiliada developed lent credence to that interpretation: the identification of the lex causae was said time and again to give a clear pointer in the direction of the natural forum: choice of law was a stepping stone to determining jurisdiction, not the other way around. If this is so, it is more than simply arguable that English choice of law rules, or some at least of them, could be read as rules which point to the law to be applied by the judges in a court in the country. If there is a moral, it is that the intellectual coherence of English conflict of laws depends upon its being understood how it all hangs together, and upon its being understood that it is rare for a given legal issue to be capable of proper development if its place in the broader scheme of things is If we do not think these matters through we will get bad law and disregarded.22 19. If as a matterof Ruritanian lawthe issueof parental consentwouldbe seen as a question of capacityor essentialvalidity. 20. According to the Convention, no. 21. And here are some gimcrack new ones. 22. Fora veryfineillustration of manyof the pointswhichmaybe made,see Harris (1998) 61 M.L.R.33. It deals with the PrivateInternational Law (Miscellaneous Act Provisions)
1995; a more inviting target for scholarly attack is, mercifully, a very rare thing indeed.

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worse complications. The concern is that a phobia about renvoi is both symptom and result of this malaise, and will mean that the coherence of the law will be achieved, if at all, by accident and despite design. After all, any doctor knows that tendons need to be nurtured, not hacked out without understanding or anaesthetic. It is about time that some of our colleagues-using that term in the broadest possible sense-recognised that renvoi is the subject's principal tendon, and came to the same conclusion about its importance to the body of the conflict of laws.
ADRIAN BRIGGS*

THE INTERPRETATION OF "TREATIES IN FORCE" IN ARTICLE 35(2) OF THE STATUTE OF THE ICJ

A. Introduction
Every member State of the United Nations is a party to the Statute (the Statute) of the International Court of Justice (the Court or ICJ).' In addition, a non-member State may also become a party to the Statute.2 The Court is open to the States parties to the Statute.3As to those States that are not parties to the Statute, Article 35(2) of the Statute provides: The conditionsunderwhichthe Courtshallbe open to otherstatesshall,subjectto the specialprovisions containedin treatiesin force, be laid down by the Security Council,but in no case shall such conditionsplace the parties in a position of beforethe Court. inequality The gist of this paragraphappears to be clear. Its purpose is to provide for a way by which a non-party to the Statute may utilise the Court by becoming a party in a case before it, whether as an applicant or as a respondent. The Security Council has control, subject to the special provisions contained in "treaties in force", over the conditions under which such a non-party to the Statute may utilise the Court. In its Resolution 9 of 1946, the Security Council laid down these conditions, which include a declaration by the State that it accepts the jurisdiction of the Court and undertakes to comply in good faith with any decision of the Court and to accept the obligations of a member of the United Nations under Article 94 of the Charter.4 What is not clear is the meaning of the phrase "treaties in force" in the exception "subject to the special provisions contained in treaties in force". At first glance, one may conclude that this phrase can be interpreted as meaning treaties that have been in force at the date when a non-party to the Statute comes before the Court either as an applicant or a respondent.5 Such an interpretation, however, is so * FellowandTutorin Law,St EdmundHall,Oxford.Thisarticleis basedon a lecture Lawon 20 Mar. andComparative whichwasgivenat the BritishInstituteof International 1998.
1. 2. 3. 4. UN Charter, Art.93(1). Idem, Art.93(2). ICJ Statute, Art.35(1). Security Council Res.9(1946), reprinted in (1995-96) ICJ Yearbook 68-69.

before 5. It is possiblethatthe substantive portionof a treatymayhavebeenterminated itsprovision beforetheICJ.Insucha case,however, a casearising underit is brought relating whenthe caseis instituted. Forthisreason,it mustbe stillin operation to disputesettlement is betterto treatsucha treatyas still in forcewhenthe case starts.

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