Renvoi

Rule / Approach

Renvoi arises when a forum’s choice-of-law rule directs it to apply the law of Foreign State X, but State X’s own choice-of-law rules would point back to the forum (remission) or forward to a third state (transmission). The question is whether “the law of State X” means only State X’s internal substantive law, or State X’s whole law including its conflict-of-laws rules.

• Whole law reference (accepting renvoi): The forum applies State X’s entire law, including X’s choice-of-law rules. If X’s rules send the matter back to the forum, the forum applies its own law; if X’s rules send it to State Y, the forum applies Y’s law.
• Internal law reference (rejecting renvoi): The forum applies only State X’s domestic substantive law, ignoring X’s conflicts rules. This avoids infinite circularity.

Elements / Steps

1. Identify the forum’s choice-of-law rule — which state does it point to?
2. Ask whether that foreign state’s own conflicts rules agree: Does State X accept jurisdiction over this matter under its own conflicts law?
3. If remission: State X’s conflicts rules refer the matter back to the forum.
   • Accept remission → apply forum internal law.
   • Reject remission → apply State X’s internal law.
4. If transmission: State X’s conflicts rules refer the matter to State Y.
   • Accept transmission → apply State Y’s law (internal or whole, depending on Y’s rules).
5. Avoid infinite circularity: The renvoi circle ends when one state’s conflicts rules apply its own internal law.

Exceptions / Critiques

• First Restatement (Beale): Rejected renvoi entirely. Foreign law is treated as a fact that supplies the rule for fixing vested rights; the forum is the only court with true legal authority and its conflicts rules are the only ones that count. Renvoi rests on the “false premise” that foreign law has direct legal force.
• W.W. Cook: Supported a form of renvoi — because rights vest under the law of a state only if that state’s courts would enforce them, a forum following vested-rights theory should examine foreign conflicts rules.
• Second Restatement § 187(3): Generally uses internal law (rejecting renvoi), but accepts renvoi for land (situs) and domicile issues where uniformity of decision is especially important.
• Practical escape device: Courts sometimes invoke renvoi to reach a result they prefer — e.g., applying forum law when the foreign state’s conflicts rules happen to point back.

Policy

Renvoi aims at uniformity of result: ideally, whether a case is litigated in the forum or in the foreign state, the same law should apply. Rejecting renvoi (using internal law) is simpler and avoids infinite loops. Accepting renvoi (whole law reference) promotes uniformity across forums but creates complexity. Most modern approaches reject renvoi except in specific contexts (land, domicile) where uniformity is especially valuable.

Key Cases

• In re Schneider’s Estate — NY surrogate court applied Swiss whole law (accepting renvoi) for disposition of Swiss real property by a NY-domiciled decedent, reasoning that NY should sit as though it were a Swiss court to avoid inequitable results from a fortuitous conversion of land to cash.

Covered In

• Conflict of Laws