Renvoi in Conflict of Laws

Renvoi in Conflict of Laws

What Is Renvoi in Conflict of Laws?

Renvoi is one of the most difficult and intellectually interesting doctrines in conflict of laws.

The word renvoi is French and can be understood roughly as “send back” or “return.”

In conflict-of-laws terminology, renvoi arises when a court’s own choice-of-law rules direct it to apply the law of another jurisdiction, but the law of that other jurisdiction includes conflict-of-laws rules that point somewhere else.

The foreign jurisdiction may:

• refer the issue back to the original forum;
• refer the issue to a third jurisdiction;
• or, depending on the circumstances, ultimately return the matter to the foreign jurisdiction’s own substantive law.

The basic problem can therefore be expressed simply:

When a U.S. court is told to apply foreign law, does “foreign law” mean only the foreign jurisdiction’s internal substantive law, or does it also include that jurisdiction’s own conflict-of-laws rules?

If the answer includes the foreign jurisdiction’s conflict rules, renvoi may arise.

If the answer excludes them, the court applies the foreign jurisdiction’s internal law directly.

Cornell’s Legal Information Institute explains that conflict of laws concerns situations in which laws of multiple connected jurisdictions could govern an issue. Cornell Legal Information Institute — Conflict of Laws Renvoi addresses a more specialized question: how far the forum should go when it has already selected another jurisdiction’s law.

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The Basic Renvoi Problem

Consider a simple hypothetical.

A court in State A is hearing a case.

Under State A’s conflict-of-laws rules, the court determines that the law of State B governs the issue.

Ordinarily, the court might simply apply State B’s internal substantive law.

But suppose State B’s conflict-of-laws rules say that the issue should instead be governed by the law of State A.

The result is a reference:

State A → State B → State A

That return reference is the classic example of renvoi.

The State A court must then decide whether to accept the reference back to State A.

If it does, it may apply State A law.

If it does not, it may apply State B’s internal substantive law.

This seemingly simple question can become extremely complicated.

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Why Does Renvoi Exist?

Renvoi arises because different jurisdictions may use different methods for deciding conflicts of law.

One jurisdiction may use:

• domicile;

another may use:

• nationality;

another may use:

• place of injury;

another may use:

• place of contracting;

another may use:

• most significant relationship;

and another may use:

• governmental interests.

Suppose State A uses one connecting factor and State B uses another.

State A may therefore select State B.

But State B may look at the same facts and select State A.

The result is a legal “return.”

This is why renvoi is sometimes described as a reference back.

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The Difference Between Internal Law and the Whole Law

The central conceptual distinction in renvoi is between:

Internal Law

The substantive legal rules of the selected jurisdiction that directly regulate the dispute.

Whole Law

The selected jurisdiction’s internal law plus its conflict-of-laws rules.

Suppose a California court determines that French law governs.

Under an ordinary internal-law approach, the court asks:

What does French substantive law provide?

Under a renvoi approach, the court may instead ask:

What would a French court do with this dispute, including the French conflict-of-laws rules?

Those are potentially very different questions.

The second approach can lead the California court away from French substantive law and back toward California law or toward the law of another jurisdiction.

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A Simple Example

Imagine that a dispute concerns the validity of a will.

The decedent was domiciled in State A but owned property connected with State B.

State A’s conflict-of-laws rules say:

Apply the law of State B.

State B’s conflict-of-laws rules say:

Apply the law of the decedent’s domicile, State A.

The reference therefore looks like this:

State A → State B → State A

If State A accepts the renvoi, it may apply State A law.

If State A rejects renvoi, it applies State B’s internal law.

The outcome may therefore depend not only upon the substantive laws of the two states but also upon their respective conflict-of-laws rules.

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Renvoi Is Not the Same as Ordinary Choice of Law

It is important to distinguish ordinary choice of law from renvoi.

In ordinary choice-of-law analysis, the forum asks:

Which jurisdiction’s law governs?

For example:

“New York law governs.”

Renvoi asks a second question:

What does “New York law” mean for this purpose?

Does it mean:

New York’s internal substantive law only?

Or does it mean:

New York’s entire law, including New York’s conflict-of-laws rules?

If the latter, New York’s conflict rules might direct the court somewhere else.

Renvoi therefore occurs after or within the process of selecting foreign law.

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The Traditional American Approach: Rejecting General Renvoi

American conflict-of-laws law has historically been skeptical of renvoi.

The traditional approach generally treats a reference to another state’s law as a reference to that state’s internal law, not its conflict-of-laws rules.

Under this approach:

Forum → Foreign jurisdiction → Foreign internal law

rather than:

Forum → Foreign jurisdiction → Foreign conflict rules → potentially another jurisdiction

This approach provides greater simplicity and reduces the possibility of circular references.

The older Restatement (First) of Conflict of Laws largely rejected the general application of renvoi, although it recognized limited exceptions.

Courts applying traditional American conflict principles frequently expressed concern that renvoi could create uncertainty and circularity. For example, In re Damato adopted the view that, when New Jersey’s conflict rules selected another state’s law, the court should apply the foreign state’s law applicable to the substantive issue rather than its conflict rules.

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Why Did American Courts Resist Renvoi?

Several objections have historically been raised.

1. Circularity

The most obvious problem is the possibility of an endless loop.

For example:

State A → State B → State A → State B → State A…

If each jurisdiction refers the issue back to the other, the court may never reach a stable answer.

This is sometimes called the circularity problem.

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2. Complexity

Renvoi requires the forum court to understand not only foreign substantive law but also the foreign jurisdiction’s conflict-of-laws methodology.

That can be difficult.

The court may need to determine:

• what the foreign conflict rule is;
• whether the rule is statutory or judicial;
• how foreign courts interpret it;
• whether exceptions apply;
• and whether the foreign jurisdiction itself recognizes renvoi.

The complexity can become substantial.

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3. Uncertainty

Ordinary choice-of-law analysis is already complicated.

Adding another layer of conflict rules may make the outcome less predictable.

Parties may be forced to litigate not only which substantive law applies but also which jurisdiction’s conflict methodology should control.

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4. Forum Manipulation

Critics have argued that renvoi can sometimes be manipulated to produce a preferred outcome.

A party may characterize a foreign reference as requiring another jurisdiction’s law and use the doctrine strategically.

This can make conflict-of-laws litigation more difficult and less predictable.

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5. The Forum’s Own Choice-of-Law Rules

Another objection is conceptual.

Why should a forum allow another jurisdiction’s conflict-of-laws rules to displace the forum’s own conflict methodology?

The forum has already performed its choice-of-law analysis.

If it selects State B, the argument goes, it should apply State B’s substantive law rather than allow State B’s conflict rules to reopen the question.

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The “Foreign Court Would Reach the Same Result” Rationale

Despite these objections, renvoi has an important theoretical attraction.

It can promote uniformity of decisions.

Suppose:

• a dispute has substantial connections to State A and State B;
• State A’s court would apply State B’s law;
• State B’s court would apply State A’s law.

If a State A court simply applies State B’s internal law, it may reach a different result from the result a State B court would reach.

Renvoi can sometimes be justified on the theory that the forum should try to decide the dispute as the foreign court would decide it.

This is particularly attractive in situations where the parties’ rights should ideally not depend upon the particular forum in which litigation happens to occur.

The Maryland Court of Appeals, when adopting a limited form of renvoi in American Motorists Insurance Co. v. ARTRA Group, Inc., emphasized uniformity and the goal of minimizing the effect of forum selection on the substantive result.

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The Restatement (Second) and Limited Renvoi

The Restatement (Second) of Conflict of Laws does not simply choose between complete acceptance and complete rejection.

Instead, § 8 adopts a limited approach.

The general rule is that when the forum’s choice-of-law rule directs the court to another state’s law, the forum ordinarily applies the local law of that state.

But the Restatement identifies circumstances in which the forum should also consider the foreign jurisdiction’s conflict-of-laws rules.

One important situation exists when the objective of the forum’s choice-of-law rule is for the forum to reach the same result that another state’s courts would reach on the same facts.

Another situation concerns cases in which the forum has no substantial relationship to the issue or parties and the interested states would concur in selecting the applicable local law.

This limited approach attempts to capture the advantages of renvoi without making the doctrine universally applicable.

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The Restatement’s Basic Idea

The Restatement approach can be understood as:

Apply the foreign jurisdiction’s internal law unless there is a reason grounded in the purpose of the forum’s choice-of-law rule to take the foreign jurisdiction’s conflict rules into account.

This is much more restrained than saying:

“Whenever foreign law is selected, always apply the entire foreign legal system.”

The distinction is important.

Modern American conflict-of-laws doctrine is therefore better described as selectively receptive to renvoi than as uniformly embracing or rejecting it.

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Remission

When renvoi sends the issue back to the forum, the process is sometimes called remission.

The pattern is:

Forum A → Foreign State B → Forum A

For example:

1. State A’s conflict rule selects State B.
2. State B’s conflict rule selects State A.
3. The issue has been referred back to State A.

If State A accepts the renvoi, it may apply its own law.

This is the classic “return” that gives the doctrine its name.

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Transmission

Renvoi can also result in a reference to a third jurisdiction.

This is often called transmission.

The pattern is:

State A → State B → State C

For example:

1. State A’s conflict rules select State B.
2. State B’s conflict rules select State C.
3. State A must decide whether to follow that reference to State C.

This is different from remission because the reference does not return to the original forum.

American courts have sometimes distinguished between renvoi in the strict sense and transmission to a third jurisdiction. A federal district court applying Missouri law, for example, noted that where the foreign state’s conflict rules point to a third jurisdiction rather than back to the forum, the problem may be better described as “transmission.”

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Partial Renvoi

Renvoi does not necessarily have to operate across an entire case.

A court may encounter it only with respect to a particular issue.

For example:

• succession may involve renvoi;
• contract validity may not;
• tort liability may be governed directly by the selected state’s internal law.

This issue-specific approach is important because modern conflict-of-laws analysis frequently separates different legal questions.

A court may therefore accept a limited renvoi for one issue while rejecting it for another.

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Renvoi and Property

Property has historically been one of the classic areas in which renvoi has received special consideration.

This is particularly true of property located in another jurisdiction.

The law governing property may depend upon:

• the location of the property;
• the domicile of the owner;
• the type of property;
• the method of transfer;
• and the legal characterization of the issue.

The Restatement (First) recognized special circumstances involving title to land in its treatment of renvoi.

This reflects the territorial importance of property law.

A jurisdiction where property is physically located has a particularly strong interest in determining legal questions concerning that property.

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Renvoi and Succession

Succession and inheritance are another traditional setting for renvoi.

A person’s estate may contain:

• real property in several states or countries;
• movable property;
• bank accounts;
• securities;
• business interests;
• and other assets.

Different jurisdictions may use different rules to determine succession.

One jurisdiction may emphasize domicile.

Another may distinguish between movable and immovable property.

Another may apply nationality.

The resulting conflict can create a classic renvoi problem.

Suppose the forum’s law directs the court to the decedent’s domicile.

The law of the domicile, however, directs the question to the law of the property location.

The court must then decide whether to follow that reference.

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Renvoi and Wills

Wills can produce particularly complicated renvoi questions.

Consider a person who:

• was domiciled in the United States;
• owned property in France;
• executed a will in another country;
• and died while maintaining connections with several jurisdictions.

A U.S. court may determine that French law governs a particular succession issue.

But French conflict-of-laws rules may themselves refer to the law of the person’s nationality or domicile.

The U.S. court may then have to determine whether it should:

1. apply French internal succession law;
2. accept the French reference back to U.S. law;
3. or possibly follow a reference to another jurisdiction.

These cases demonstrate why renvoi has historically attracted significant attention in succession law.

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Renvoi and Family Law

Family-law disputes can also involve renvoi.

Issues concerning:

• marital status;
• capacity to marry;
• divorce;
• legitimacy;
• parental relationships;
• and other personal-status questions

have traditionally generated difficult conflicts among jurisdictions.

Different legal systems may use different connecting factors.

One may focus on domicile.

Another may focus on nationality.

Another may focus on the place where a relationship was created.

If the forum selects foreign law and the foreign jurisdiction uses a different connecting factor, renvoi may arise.

However, modern constitutional and statutory developments can substantially affect these questions.

Renvoi should therefore never be analyzed without considering the current governing law.

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Renvoi and Divorce

Divorce historically provided another setting in which renvoi was discussed.

A forum court might determine that the law of one jurisdiction governed marital status.

The selected jurisdiction might then apply its own conflict rules and point elsewhere.

Historically, the Restatement (First) recognized an exception involving the validity of divorce decrees.

Modern family-law doctrine is considerably more complex, however, and recognition of foreign or sister-state divorces involves separate jurisdictional, constitutional, statutory, and comity principles.

Therefore, the existence of a renvoi issue does not automatically determine whether a divorce decree should be recognized.

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Renvoi and Contracts

Contracts present a more difficult question.

Commercial parties generally want predictability.

If a contract states:

“This agreement shall be governed by the law of State A,”

the parties ordinarily expect the court to apply State A’s substantive contract law.

Allowing State A’s conflict rules to redirect the dispute to State B could undermine that expectation.

For this reason, contractual choice-of-law provisions often create strong arguments against applying broad renvoi.

The court must examine the wording of the clause and the applicable conflict-of-laws doctrine.

Some clauses expressly select:

“the laws of State A, without regard to its conflict-of-laws principles.”

Such language is generally intended to avoid the renvoi problem.

But its effectiveness depends upon the governing law and the jurisdiction’s interpretation of the provision.

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Renvoi and Tort Law

Tort disputes can also generate renvoi.

Imagine:

• the accident occurs in State B;
• the plaintiff lives in State A;
• the defendant is headquartered in State C;
• and the lawsuit is filed in State A.

State A’s conflict rules might select State B.

State B’s conflict rules might use a different methodology and select State A or State C.

The forum then has to determine whether the reference should be followed.

Modern American tort conflicts are often governed by interest-analysis or significant-relationship approaches rather than rigid territorial rules, which can reduce some classic renvoi problems.

Nevertheless, renvoi can still arise where statutory or specialized choice-of-law rules direct courts to another jurisdiction’s “law.”

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Renvoi in Federal Courts

Federal courts encounter renvoi in several different contexts.

The first important question is:

What choice-of-law rule governs the case?

In a diversity case, a federal court generally applies the choice-of-law rules of the state in which it sits.

Therefore, if the forum state’s law recognizes a limited form of renvoi, the federal court may have to consider that doctrine.

If the forum state’s law rejects renvoi, the federal court ordinarily follows that approach.

This follows from the broader principle that a federal diversity court applies the forum state’s substantive choice-of-law rules.

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Renvoi and Federal Law

Renvoi becomes more complicated when federal law itself supplies the choice-of-law rule.

Federal statutes may sometimes direct courts to apply state law.

A federal statute may also define the relevant jurisdiction or governing law.

In such situations, the court must interpret the federal statute to determine whether Congress intended:

• only the internal law of a state;
• the state’s entire law;
• or some other choice-of-law methodology.

Renvoi is therefore not automatically a general federal doctrine.

It depends heavily on the legal source directing the court toward another jurisdiction’s law.

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The Federal Tort Claims Act and Renvoi

An important Supreme Court discussion of renvoi appears in Sosa v. Alvarez-Machain.

The Federal Tort Claims Act provides that the United States’ liability is determined according to the law of the place where the relevant act or omission occurred.

Earlier Supreme Court precedent, particularly Richards v. United States, had interpreted the phrase “law of the State” to include the whole law of the state, including its conflict-of-laws rules.

That approach could produce renvoi.

In Sosa, however, the Supreme Court explained that the statutory foreign-country exception made it important to distinguish between using renvoi to identify which U.S. state supplies the governing law and requiring U.S. courts to determine what conflict-of-laws rule a foreign court would apply. The Court rejected the latter approach in the context of the Federal Tort Claims Act.

This is an important modern illustration:

Renvoi is not applied simply because a statute uses broad language such as “law.”

The court must examine the statutory purpose and context.

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Sosa v. Alvarez-Machain

Sosa demonstrates why renvoi must be approached cautiously.

The Supreme Court recognized that earlier doctrine had treated the “whole law” of a state as potentially including its conflict-of-laws rules.

But the Court distinguished that approach from the question whether U.S. courts should effectively conduct a second-level inquiry into what a foreign country’s conflict-of-laws system would do.

The Court emphasized the statutory structure of the Federal Tort Claims Act and concluded that the foreign-country exception could not be undermined by such an expansive use of renvoi.

The case therefore reinforces a fundamental lesson:

Renvoi is always subordinate to the legal rule that actually governs the case.

If a statute, treaty, or controlling federal doctrine establishes a particular choice-of-law method, renvoi cannot simply be invoked independently of that framework.

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Renvoi and State Law

Because much American conflict-of-laws law is state law, state courts have developed different approaches.

Some jurisdictions largely reject renvoi.

Some recognize limited exceptions.

Some have adopted statutory forms of renvoi in specialized fields.

Others may use renvoi-like reasoning without adopting the doctrine generally.

For this reason, it is inaccurate to say:

“American law either accepts or rejects renvoi.”

A more accurate statement is:

American jurisdictions have generally resisted broad renvoi, but some recognize limited forms of the doctrine in particular circumstances.

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Limited Renvoi in Maryland

Maryland provides an important example.

In American Motorists Insurance Co. v. ARTRA Group, Inc., the Maryland Court of Appeals adopted a limited form of renvoi.

Maryland’s choice-of-law rule directed the court toward Illinois law.

Illinois’ conflict rules would have directed the issue back to Maryland.

The Maryland court concluded that accepting the return reference could help achieve greater uniformity and avoid making the outcome depend simply upon the forum in which litigation was filed.

The court therefore adopted a limited form of renvoi while recognizing the danger of endless circularity.

This is a useful illustration because it shows that renvoi can be adopted as a controlled doctrine rather than as an unlimited one.

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The Problem of the Endless Loop

The classic criticism of renvoi is easy to visualize.

Suppose:

State A selects State B.

State B selects State A.

State A accepts the reference.

But if State A’s conflict rule still selects State B, the process could theoretically repeat:

A → B → A → B → A → B…

A legal doctrine that produces no final answer is obviously problematic.

Courts therefore need a mechanism for terminating the process.

Possible solutions include:

• accepting the first remission;
• applying the forum’s law;
• rejecting renvoi;
• applying the foreign jurisdiction’s internal law;
• or using a limited renvoi rule designed to terminate the reference.

The precise solution depends upon the governing jurisdiction.

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Renvoi and Legal Uniformity

One of the strongest arguments in favor of renvoi is uniformity.

Suppose the same dispute could be litigated in State A or State B.

If both courts apply the same ultimate law, parties may receive the same result regardless of the forum.

That can promote:

• predictability;
• fairness;
• interstate harmony;
• international harmony;
• and respect for the legal systems of other jurisdictions.

This argument is particularly persuasive where the foreign jurisdiction’s conflict rule clearly demonstrates that it does not intend its internal law to govern the particular dispute.

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Renvoi and Forum Shopping

Renvoi can also reduce or increase forum shopping depending on how it operates.

If State A and State B would reach different results solely because they use different conflict rules, parties may attempt to select the more favorable forum.

A renvoi doctrine that produces the same result in both jurisdictions can reduce this incentive.

But a poorly designed renvoi rule can have the opposite effect.

Litigants may manipulate the choice-of-law analysis to trigger a favorable reference.

Thus, renvoi has the potential both to reduce and to increase strategic forum selection.

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Renvoi and Judicial Efficiency

Courts must also consider the practical cost of applying renvoi.

Determining foreign conflict-of-laws rules may require:

• foreign statutes;
• foreign judicial decisions;
• expert testimony;
• translations;
• comparative legal research;
• and analysis of the foreign legal system.

The additional litigation may be disproportionate to the importance of the issue.

This is one reason many American courts prefer to apply the foreign jurisdiction’s internal substantive law directly.

A simple rule can sometimes be more valuable than a theoretically elegant but highly complex one.

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Renvoi and Predictability

Predictability is particularly important in commercial law.

Businesses structure transactions based upon anticipated legal consequences.

If selecting State A’s law could unexpectedly result in the application of State B’s law because of renvoi, parties may have difficulty predicting their legal obligations.

This is why sophisticated contracts often contain explicit provisions addressing conflict-of-laws principles.

For example:

“This Agreement shall be governed by the laws of State A, without giving effect to its conflict-of-laws rules.”

Such language is designed to select State A’s internal substantive law.

Whether the clause is effective depends upon the applicable conflict-of-laws rules, but the drafting objective is clear.

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Renvoi and Party Autonomy

Party autonomy can provide a powerful reason for rejecting renvoi in contractual disputes.

If sophisticated parties deliberately choose a particular legal system, a court may reasonably infer that they intended that jurisdiction’s substantive law to govern.

Allowing the selected jurisdiction’s conflict rules to redirect the dispute could undermine that intention.

However, courts must still examine the applicable law concerning contractual choice-of-law provisions.

Not every contractual selection is valid or unlimited.

Mandatory statutes, public policy, consumer protections, and other doctrines may restrict party autonomy.

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Renvoi and Public Policy

Renvoi also intersects with the public policy exception discussed in the preceding article.

Suppose a forum court determines that foreign law governs.

The foreign jurisdiction’s conflict rules then refer the matter back to the forum.

The forum may decide whether to accept that reference.

But the forum’s public policy analysis is a different question.

The court should not confuse:

“The foreign conflict rule refers this matter back to us”

with

“Our public policy requires us to apply our own law.”

The first is a renvoi question.

The second is a public-policy question.

Both can affect the outcome, but they arise from different doctrines.

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Renvoi and Foreign Law

The previous article examined how U.S. courts determine the content of foreign law.

Renvoi adds another layer.

When a court is directed to foreign law, it may need to determine:

1. what the foreign jurisdiction’s substantive law provides;
2. what its conflict-of-laws rules provide;
3. whether those conflict rules apply to the particular issue;
4. whether the forum recognizes renvoi;
5. and, if so, whether the reference should be accepted.

Thus, the determination of foreign law can itself become a conflict-of-laws inquiry.

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Renvoi and the “Law of the Foreign State”

The wording used in statutes and contracts can therefore be extremely important.

There is a difference between:

“governed by the law of State A”

and

“governed by the substantive law of State A, without regard to its conflict-of-laws rules.”

The second formulation is designed to eliminate ambiguity about renvoi.

Statutes may also use language such as:

“the law of the state where…”

The court must determine what the legislature intended by that language.

The Supreme Court’s treatment of the Federal Tort Claims Act demonstrates that the meaning of “law” depends upon statutory context and purpose.

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Renvoi and Statutory Choice-of-Law Rules

Some statutes themselves create special choice-of-law rules.

For example, a statute might specify that the law of a particular state governs.

The court then has to determine whether the statute incorporates:

• the state’s internal law;
• its entire law;
• or its conflict-of-laws rules.

Courts should not assume the answer.

The statutory text, structure, purpose, and relevant precedent must be examined.

This is particularly important when Congress has created a specialized federal cause of action.

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Renvoi and International Conflict of Laws

Renvoi is especially associated with private international law.

International disputes can involve legal systems with dramatically different approaches to choice of law.

For example:

• one country may emphasize nationality;
• another domicile;
• another habitual residence;
• another territorial connection.

The resulting references can create complicated chains.

A U.S. court may therefore have to decide not only whether foreign law applies but also whether it should consider the foreign country’s conflict rules.

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Renvoi and Civil-Law Jurisdictions

Renvoi has historically been particularly important in continental European private international law.

Some civil-law systems have developed detailed statutory conflict rules concerning:

• succession;
• family status;
• contracts;
• property;
• and other private-law relationships.

Those rules may direct courts toward the law of another jurisdiction.

A U.S. court encountering such a system may therefore face a sophisticated foreign conflict-of-laws framework.

This is one reason expert testimony concerning foreign law can become important.

The court must understand not merely the foreign substantive rule but also the foreign jurisdiction’s methodology for selecting applicable law.

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Renvoi and International Treaties

Treaties can significantly affect renvoi analysis.

An international convention may establish its own choice-of-law rules.

If a treaty applies, the court must first determine what the treaty requires.

The parties cannot simply assume that ordinary state conflict-of-laws doctrine controls.

A treaty may:

• select a particular jurisdiction’s law;
• establish uniform substantive rules;
• exclude conflict-of-laws principles;
• or specify how references among legal systems should operate.

Renvoi therefore cannot be analyzed in isolation from applicable international agreements.

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Renvoi and the Uniform Commercial Code

American statutory law can also contain limited renvoi-like provisions.

The Uniform Commercial Code, for example, contains rules concerning applicable law in certain circumstances.

The existence of a statutory renvoi provision in one subject area does not mean that the jurisdiction has adopted renvoi as a general conflict-of-laws doctrine.

This distinction was recognized in Folk v. York-Shipley, Inc., where the Delaware Supreme Court concluded that a statutory provision concerning renvoi in the Uniform Commercial Code did not establish a general renvoi doctrine for tort cases.

The lesson is important:

A legislature may authorize a limited form of renvoi for one field without adopting renvoi throughout the legal system.

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Renvoi and the Uniformity of Results

The strongest theoretical argument for renvoi can be stated as follows:

If a court is applying the law of another jurisdiction, why should it decide the case differently from the court of that jurisdiction?

Suppose a U.S. court is directed to apply French law.

If a French court would apply New York law because of French conflict rules, perhaps the U.S. court should do the same.

This approach attempts to produce jurisdictional uniformity.

The alternative is:

“Our conflict rules selected France, so we apply French internal law even though a French court would apply New York law.”

Neither approach is inherently self-evident.

The choice depends upon the purpose of the forum’s conflict-of-laws methodology.

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The “As the Foreign Court Would” Approach

One way to understand renvoi is as an attempt to replicate the result that would have been reached in the jurisdiction whose law was initially selected.

Under this approach, the forum asks:

If this dispute had been brought in the foreign jurisdiction, what law would that court have applied?

The forum then attempts to reach the same result.

This approach has intuitive appeal because it reduces the importance of the location of the litigation.

But it also creates substantial complexity.

The forum must effectively simulate the foreign court’s conflict-of-laws analysis.

That may require extensive comparative legal research.

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The Internal-Law Approach

The competing approach is simpler.

The forum says:

“Our conflict-of-laws rules selected State B. We therefore apply State B’s internal substantive law.”

The foreign jurisdiction’s conflict rules are ignored.

This approach has several advantages:

• simplicity;
• predictability;
• reduced litigation;
• preservation of forum control over choice of law;
• and avoidance of circularity.

This has historically been the dominant American position in many areas.

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Renvoi Is Not One Uniform Rule in the United States

This point deserves particular emphasis.

There is no single universal American renvoi rule governing every case.

The applicable approach may depend upon:

• the state whose conflict rules govern;
• the subject matter;
• the source of the choice-of-law rule;
• the wording of the relevant statute;
• the existence of a contractual choice-of-law clause;
• federal law;
• treaties;
• and the particular jurisdiction’s case law.

A lawyer should therefore never state simply:

“U.S. law rejects renvoi.”

The more accurate statement is:

American law generally rejects broad, automatic renvoi, but limited forms of renvoi may be recognized in particular jurisdictions and contexts.

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A Practical Renvoi Analysis

When a renvoi issue arises, the court can proceed through several questions.

Step One: Identify the Forum

Which court is deciding the case?

Step Two: Identify the Governing Choice-of-Law Rule

What rule determines which jurisdiction’s law applies?

Step Three: Determine the Selected Jurisdiction

Which state’s or country’s law has been selected?

Step Four: Determine What “Law” Means

Does the applicable rule refer to:

• internal substantive law;
• the entire law;
• or something else?

Step Five: Examine the Foreign Conflict Rule

If renvoi is potentially relevant, what does the selected jurisdiction’s conflict-of-laws rule provide?

Step Six: Determine Whether the Forum Recognizes Renvoi

Does the governing law accept:

• remission;
• transmission;
• limited renvoi;
• or no renvoi?

Step Seven: Determine the Purpose of the Choice-of-Law Rule

Would following the foreign conflict rule advance the purpose of the forum’s choice-of-law methodology?

Step Eight: Prevent Circularity

If the reference produces an endless loop, what rule terminates the process?

Step Nine: Apply Any Specialized Statutory or Treaty Rule

A federal statute or treaty may supersede ordinary renvoi principles.

Step Ten: Apply the Resulting Substantive Law

Only after these questions are resolved should the court apply the substantive rule governing the dispute.

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A Detailed Hypothetical

Consider the following situation.

A person domiciled in State A owns movable property.

The person dies while temporarily residing in State B.

The estate is administered in State B.

A dispute arises concerning succession.

State A’s conflict-of-laws rule provides:

Succession is governed by the law of the decedent’s domicile.

That points to State A.

But suppose State B’s law becomes relevant because the estate is being administered there, and State B’s conflict rules provide a different connecting factor.

Alternatively, imagine the forum’s rule directs the court to State B, while State B’s conflict rule points back to State A.

The court now faces renvoi.

The judge must determine whether the forum’s law intends the court to apply:

State B’s internal succession law

or

State B’s entire law, including its conflict rules.

If the latter, the reference may return to State A.

This example demonstrates why renvoi is especially common in succession and personal-status disputes.

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The Danger of Treating Renvoi as a Shortcut

Renvoi can sometimes appear to offer an easy answer.

A party may argue:

“Foreign law refers the matter back to us, so we should simply apply our own law.”

But that is not necessarily correct.

The court must first establish:

1. that the foreign jurisdiction’s conflict rule actually applies;
2. that the forum recognizes renvoi in the relevant context;
3. that the reference is legally intended;
4. and that accepting it is consistent with the governing conflict-of-laws methodology.

Renvoi is therefore not a shortcut to forum law.

It is itself a legal doctrine requiring analysis.

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Renvoi and Forum Shopping

The doctrine also illustrates why the location of litigation can matter so much.

Suppose:

State A applies State B’s internal law.

But:

State B applies State A’s law through renvoi.

A party might prefer one forum over the other.

This could produce materially different outcomes.

A carefully designed renvoi rule may reduce that disparity by trying to make the forum reach the result the selected jurisdiction itself would reach.

But if jurisdictions apply renvoi inconsistently, forum selection may become even more important.

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Renvoi and Predictability in International Transactions

International businesses need to know whether a choice-of-law clause actually selects the law they expect.

A contract might state:

“This agreement is governed by the law of Country A.”

If the forum applies renvoi and Country A’s conflict rules point to Country B, the parties may unexpectedly find themselves litigating under Country B law.

This is one reason sophisticated international agreements often contain detailed choice-of-law provisions.

The drafting may expressly exclude conflict-of-laws principles.

Nevertheless, mandatory law and overriding statutes can still affect the outcome.

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Renvoi and the Role of the Judge

Renvoi requires the judge to engage in an unusually sophisticated form of legal analysis.

The judge may need to determine:

• the forum’s conflict rules;
• the foreign jurisdiction’s substantive law;
• the foreign jurisdiction’s conflict rules;
• whether the foreign jurisdiction itself recognizes renvoi;
• and how the foreign court would apply those rules.

This can require expert evidence and extensive comparative research.

It is therefore one of the areas in conflict of laws where understanding the structure of another legal system becomes as important as knowing its substantive rules.

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Renvoi and Expert Testimony

Because renvoi may require understanding foreign conflict-of-laws doctrine, expert testimony can be particularly useful.

An expert may explain:

• the foreign jurisdiction’s choice-of-law rules;
• relevant statutes;
• judicial decisions;
• legal methodology;
• whether the foreign courts recognize renvoi;
• and how the foreign courts would resolve the issue.

But the court remains responsible for determining the law.

Expert testimony does not transfer judicial authority to the expert.

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Renvoi and Foreign Judicial Decisions

Foreign cases may be especially important.

Suppose a U.S. court must determine whether French conflict-of-laws rules would refer a succession question back to the United States.

The court may need to examine French decisions involving similar facts.

It may also need to understand:

• which courts have authority;
• whether the decisions are binding;
• whether later cases modified the rule;
• and whether statutory reforms have changed the law.

A single translated case may therefore be insufficient.

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Renvoi and Changing Foreign Law

Conflict-of-laws rules can change.

A foreign legislature may amend its choice-of-law statute.

A foreign supreme court may adopt a new methodology.

A treaty may change the applicable rules.

A court considering renvoi must therefore determine the law applicable at the relevant time.

This is especially important in long-running disputes where the relevant events occurred years before litigation.

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Renvoi and Public Policy: A Final Distinction

Renvoi and public policy sometimes appear together but perform different functions.

Renvoi asks:

What happens when the foreign jurisdiction’s own conflict rules point elsewhere?

Public policy asks:

Should the forum refuse to apply otherwise applicable law because doing so would violate a fundamental policy?

A court might:

• reject renvoi but still refuse foreign law on public-policy grounds;
• accept renvoi and apply forum law;
• reject renvoi and apply foreign internal law;
• or apply a third jurisdiction’s law through transmission.

The doctrines should therefore remain analytically separate.

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Renvoi and Comity

Renvoi can also be understood in the context of international comity.

If a U.S. court is asked to apply foreign law, respecting the foreign jurisdiction’s own choice-of-law methodology may demonstrate a high degree of respect for that legal system.

But comity does not require the forum to surrender control over its conflict-of-laws rules.

The forum remains responsible for determining the legal methodology that governs its own courts.

Thus:

Comity may support consideration of foreign conflict rules.

Comity does not automatically require renvoi.

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The Advantages of Renvoi

Renvoi has several potential advantages.

Uniformity

It can encourage courts in different jurisdictions to reach the same result.

Reduced Forum Dependence

It can reduce the importance of the location of litigation.

Respect for Foreign Law

It recognizes that the selected jurisdiction has its own complete conflict-of-laws system.

Avoidance of Arbitrary Results

In some cases, rejecting the foreign conflict rule may produce a result that the selected jurisdiction itself would never apply.

International Coordination

In international disputes, renvoi can sometimes help coordinate different national legal systems.

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The Disadvantages of Renvoi

The doctrine also has substantial disadvantages.

Complexity

It requires analysis of multiple conflict systems.

Circularity

The law may appear to refer endlessly between jurisdictions.

Uncertainty

The parties may not know in advance which law will ultimately apply.

Expense

Foreign-law research can significantly increase litigation costs.

Manipulation

Parties may attempt to use renvoi strategically.

Reduced Predictability

Especially in commercial transactions, renvoi can undermine the certainty parties expect from a choice-of-law clause.

These competing considerations explain why American jurisdictions have generally favored limited rather than universal renvoi.

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Common Misunderstandings About Renvoi

“Renvoi Means the Foreign Law Always Sends the Case Back”

No.

The foreign jurisdiction may refer the matter:

• back to the forum;
• to a third jurisdiction;
• or to its own internal law.

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“Renvoi Means the Forum Automatically Applies Its Own Law”

No.

The forum may accept or reject the reference depending upon the governing law.

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“All U.S. States Reject Renvoi”

No.

American jurisdictions have different approaches, and some recognize limited forms of renvoi.

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“Renvoi Is the Same as Transmission”

Not exactly.

Remission generally refers to a reference back to the forum.

Transmission refers to a reference onward to a third jurisdiction.

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“Renvoi Is Only an International Doctrine”

No.

It can arise in interstate conflicts within the United States as well as international disputes.

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“Renvoi Is a Rule of Substantive Law”

No.

It is a conflict-of-laws doctrine concerning how the forum interprets a reference to another jurisdiction’s law.

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“If a Contract Chooses Foreign Law, Renvoi Always Applies”

No.

The applicable choice-of-law rules and the language of the contract may exclude or limit renvoi.

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Key Takeaways

• Renvoi is a conflict-of-laws doctrine concerning the effect of a reference to another jurisdiction’s law.
• The term comes from French and means approximately “send back” or “return.”
• Renvoi arises when the forum’s choice-of-law rule selects foreign law and the foreign jurisdiction’s conflict rules point elsewhere.
• The foreign reference may return the matter to the forum, producing remission.
• It may instead point to a third jurisdiction, sometimes described as transmission.
• The fundamental question is whether “foreign law” means only the foreign jurisdiction’s internal substantive law or also its conflict-of-laws rules.
• Traditional American conflict-of-laws doctrine has generally rejected broad, automatic renvoi.
• The Restatement (Second) of Conflict of Laws adopts a limited approach, recognizing circumstances in which the foreign jurisdiction’s conflict rules should be considered.
• Some American jurisdictions have adopted limited forms of renvoi.
• Maryland’s decision in American Motorists Insurance Co. v. ARTRA Group, Inc. is an important example of limited renvoi.
• Renvoi has historically been especially significant in succession, property, family status, and other areas in which different jurisdictions use different connecting factors.
• Contractual choice-of-law clauses may limit renvoi, particularly where the parties expressly select substantive law without regard to conflict-of-laws rules.
• Federal courts generally follow the applicable state choice-of-law rules in diversity cases.
• Federal statutes may create their own rules concerning whether renvoi should be considered.
• Sosa v. Alvarez-Machain demonstrates that renvoi cannot be applied independently of the purpose and text of the federal statute governing the dispute.
• Renvoi is distinct from the public policy exception, although both can affect the ultimate choice of law.
• Renvoi seeks to determine the effect of the foreign jurisdiction’s conflict rules; public policy concerns whether the forum should refuse otherwise applicable law.
• The principal arguments for renvoi are uniformity, consistency, and reducing the importance of forum selection.
• The principal objections are complexity, circularity, uncertainty, expense, and possible manipulation.
• There is no single universal American rule governing renvoi in every subject area.

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Frequently Asked Questions

What does renvoi mean in conflict of laws?

Renvoi is the situation in which a court’s conflict-of-laws rules select the law of another jurisdiction, but that jurisdiction’s own conflict-of-laws rules refer the matter back to the forum or onward to another jurisdiction.

What is remission?

Remission occurs when the foreign jurisdiction’s conflict-of-laws rules refer the matter back to the original forum.

The basic pattern is:

Forum → Foreign jurisdiction → Forum.

What is transmission?

Transmission occurs when the foreign jurisdiction’s conflict rules refer the issue to a third jurisdiction.

The basic pattern is:

Forum → State A → State B.

Do U.S. courts generally accept renvoi?

Broadly speaking, American law has historically been skeptical of general renvoi. However, some jurisdictions recognize limited forms of the doctrine, and the Restatement (Second) adopts specific circumstances in which foreign conflict rules may be considered.

Why do courts reject renvoi?

The principal objections are complexity, circularity, uncertainty, increased litigation costs, and the possibility that parties may manipulate the doctrine.

Why would a court accept renvoi?

The principal justification is uniformity. If the forum can decide the case as the foreign court would decide it, the outcome may become less dependent upon the place where the lawsuit happens to be filed.

Can renvoi result in the law of a third country or state?

Yes. When the selected jurisdiction’s conflict rules direct the issue to another jurisdiction, the situation may be described as transmission.

Is renvoi the same as applying foreign law?

No. Applying foreign law generally means applying the selected jurisdiction’s internal substantive law. Renvoi concerns whether the forum should also consider that jurisdiction’s conflict-of-laws rules.

Can a contract exclude renvoi?

A contract may expressly state that it is governed by the substantive law of a particular jurisdiction without regard to that jurisdiction’s conflict-of-laws rules. Whether such language is effective depends upon the applicable law and the circumstances of the contract.

Can renvoi apply in federal court?

Yes, but the answer depends upon the source of the applicable choice-of-law rule. In diversity cases, federal courts generally follow the conflict-of-laws rules of the forum state. Federal statutes may establish different rules.

Is renvoi used in every state?

No. State approaches vary considerably. Some jurisdictions reject broad renvoi, while others recognize limited forms in particular circumstances.

Why is renvoi particularly important in succession cases?

Succession can involve several jurisdictions with different rules based on domicile, nationality, property location, or other connecting factors. Those differences can cause one jurisdiction’s conflict rules to refer the issue to another jurisdiction.

Does renvoi always result in the forum’s law being applied?

No. The foreign jurisdiction may refer the matter to a third jurisdiction, or the forum may reject the reference and apply the foreign jurisdiction’s internal law.

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Conclusion

Renvoi is one of the clearest demonstrations of why conflict of laws can become more complicated than simply asking which jurisdiction has the strongest connection to a dispute.

A court may determine that foreign law governs. But that apparently simple conclusion can generate another question:

What does it mean to apply that foreign law?

Does the court apply only the foreign jurisdiction’s substantive rules?

Or must it also consider the foreign jurisdiction’s own conflict-of-laws principles?

If those foreign conflict rules point back to the forum, should the forum accept the reference?

If they point to a third jurisdiction, should the forum follow it?

These questions form the core of renvoi.

American law has generally been cautious about embracing the doctrine universally. The traditional American preference has been to apply the internal law of the jurisdiction selected by the forum’s conflict rules. Yet modern conflict-of-laws doctrine recognizes that there are circumstances in which a limited form of renvoi can serve legitimate purposes, particularly when the goal is to achieve uniformity or to reach the result that another jurisdiction’s courts would reach.

The Restatement (Second) therefore takes a measured approach rather than treating renvoi as an all-or-nothing doctrine. Some American jurisdictions have likewise adopted limited versions, while others continue to reject it in particular fields.

The doctrine is ultimately about how legal systems communicate with one another.

The forum says:

“The law of another jurisdiction governs.”

The selected jurisdiction may respond:

“Under our conflict rules, another law should govern.”

The forum must then decide whether that response should be heard and, if so, what legal consequence it should have.

That is the essence of renvoi: not merely choosing another jurisdiction’s law, but deciding how far the forum should follow that jurisdiction’s own method of choosing law.