The doctrine of 'Renvoi' in private international law : a comparative study

Abstract

Private International law today is principally concerned with the solution of two questions, namely i. whether the court at the forum is capable of exercising jurisdiction over the defendant and the cause of action (choice of jurisdiction) and ii. if so, which law is applicable to the particular case (choice of law), that is, whether it is the lex fori which is applicable or whether it is any other foreign law. Having satisfied itself that it possesses jurisdiction, the court at the forum is to proceed to characterise the cause of action into its correct legal category, for the purpose of revealing the relevant rule for the choice of law. What is characterised is not the factual situation, but the legal question raised by the factual situation, including its various place elements. One of these Flace elements is selected by the judge at the forum as the connecting factor appropriate to the question, that is, the factor which connects the situation with some country. Once the legal question raised by the factual situation has been characterised into its appropriate legal category, the judge at the forum is to proceed to apply the correct choice of law rule in order that the lex causae may be selected. It might seem at first sight that if the question containing a foreign element has been characterised, and the connecting factor and consequently the proper law have been selected, the application of the proper law should present no difficulty.