Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Posts Tagged ‘renvoi’

Renvoi Doesn’t Help Get Artefacts Back

Posted by Seva on March 19, 2008

There is an interesting article by Derek Fincham J.D., currently a Ph.D. student at the University of Aberdeen in Scotland on a recently failed attempt to use the doctrine of renvoi to facilitate return of illegally taken artefact to the source country.

In short, a fragment of an ancient relief was taken from Iran between 1932 and 1974, at which point it was purchased by an unwitting French collector at a New York auction. In 2005, she attempted to sell the relief at Christie’s in London, at which point Iranian government got involved, filed a claim alleging title to the relief, and obtained an interlocutory injunction restraining the sale. Having conceded that under English and French law the relief was movable property to which lex situs (i.e. French law) applied, Iran’s chief argument was that English court should apply renvoi. Not only did it argue that the English court should apply the French conflict of law rules, but also that such rules, or more particularly the public policy behind them, would cause a French court to apply Iranian patrimony laws and thus order the return of the relief. Unfortunately, Iran could cite no precedents to bolster its position. In fact, it faced problems from the perspective of both legal systems, English and French.

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Posted in renvoi | Tagged: , , | 4 Comments »

Welcome and What is Renvoi?

Posted by Seva on March 10, 2008

Welcome to Renvoi, a legal blog (blawg) on the subject of conflict of laws in Canadian law. This is my first attempt at a blawg, so I think I must start by asking everyone to bear with me for a little while until I get ramped up.

As I mention in the “about” page, I am not an expert in this field. Rather, I am an amateur who is very interested in this area of law. Thus, this blawg is not intended to provide any advice, but rather express my $0.02 on new developments in this field.

I guess the first question I should address is what is “renvoi”? To make a long story short, it is a troublesome conflict of laws principle under which a local court decides to apply foreign law to a dispute, only to discover that under this foreign law the dispute must in fact be governed by local law (lex fori) or yet other foreign law. There are generally two types of renvoi:

Partial Renvoi: local court of country X applies its private law and choice of law rules and decides that the entire law of country Y applies to the dispute, both its private law and choice of law rules. Under the choice of law rules of country Y, the dispute is actually governed by the private law of country Z, which can actually be the same as X. In this case, the court ultimately applies private law of Z to the dispute.

Full Renvoi: the same example applies, but this time the conflict of law rules of Y dictate that the entire law of Z applies, rather than just its private law as in the previous example. Now, if Z is the same country as X, then we have a hot potato problem or an endless loop, with the law of X bouncing the dispute to the entire law of Y, which bounces it back to the entire law of X, and so on.

Full renoi doesn’t happen in common law because choice of law principles used in various common law jurisdictions are fairly universal and generally point to a single appropriate body of law. But, at least theoretically, this may happen between common law and civil law jurisdictions, where choice of law principles may be quite different. I don’t know of any case where this has actually happened, however, I would guess that if this happened in Canada, the local court would accept the remission based on the choice of law principles from the law of Y and apply lex fori to the dispute.

Posted in choice of law, General | Tagged: , , | 3 Comments »