Renvoi

In the European Union, application of renvoi is expressly excluded in contract cases under article 20 of the Rome I Regulation (regulation (EC) 593/2008l formerly in Article 15 EC Convention on the Law Applicable to Contractual Obligations, Rome 1980). It has also been rejected for contracts by most Commonwealth countries.[1]

Most states also exclude it in tort cases e.g. in the UK section 9(5) of the Private International Law (Miscellaneous Provisions) Act 1995. Since 11 January 2009, Regulation (EC) 864/2007 (the Rome II Regulation) on the law applicable to non-contractual obligations has been in force, controlling in a uniform way the rules throughout the European Union. Article 24 of this regulation provides: "The application of the law of any country specified by this Regulation means the application of the rules of law in force in that country other than its rules of private international law." hence excluding the possibility of renvoi throughout the EU in tort cases.

In Australia, the doctrine of renvoi was revived by the decision of the High Court in Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 (29 September 2005). In this decision the High Court considered the situation of Mrs Neilson, who had injured herself falling down the stairs in her apartment in Wuhan, China. Her apartment had been provided by her husband's employer, Overseas Projects Corporation, and Mrs Neilson sued her husband's employer in negligence in the Supreme Court of Western Australia in June 1997, six years after the accident had occurred. Under Australian choice of law rules, the law of the place of the incident or lex loci delicti governs tort situations (following the decision of that court in 2002: Regie Nationale des Usines Renault SA v Zhang). This meant that the law relevant to the resolution of the dispute was that of the People's Republic of China. However under Chinese law, the claim would have been statute barred for exceeding the limitations period (Article 136 of the General Principles of Civil Law of the People's Republic of China). However Mrs Neilson raised Article 146 of the General Principles in her defence, arguing that the provision of that article should apply making the relevant law for the dispute Australian law. Article 146 provided that:

"With regard to compensation for damages resulting from an infringement of rights, the law of the place in which the infringement occurred shall be applied. If both parties are nationals of the same country or domiciled in the same country, the law of their own country or of their place of domicile may also be applied"

As a consequence, the Supreme Court trial judge concluded that Art 146 "gives me a right to choose to apply the law of Australia because both parties are nationals of Australia." This decision was reversed by the Full Court of the Supreme Court of Western Australia.

On appeal to the High Court, Neilson succeeded. In six separate judgments, the majority of the High Court found in favour of Neilson on the basis that the Australian choice of law rule referred to the whole of the law of the place of the wrong. Secondly, that this meant that the applicable law was referred back to Australia and the Australian limitations statute applied, meaning that Neilson's claim was no longer statute barred.

This decision has received strident criticism by Martin Davies,[2] and both the High Court and Full Court decisions have received very close attention by leading contemporary conflicts scholars including Andrew Lu and Lee Carroll,[3] Elizabeth Crawford,[4] and Mary Keyes.[5]

It has been suggested that this messy interpretation of the Australian Court could have been avoided, had the Court followed the general practice that procedural rules always go with the forum and substantive law depends on the "forum most interested" analysis. However, since John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, statutes of limitations are considered substantive law. Because of this, the applicability of limitation laws no longer go with the local forum; rather, they too follow the lex loci delicti.

In the United States most courts try to solve conflict of laws questions without invoking renvoi. In Re Schneider's Estate, 96 N.Y.S.2d 652 (1950), is an example where renvoi is recognized as an option, in which the local court chose to apply the foreign country's laws to decide the dispute in the local court. This is most likely to happen in cases involving immovable property or domestic relationships.