Renvoi in the Private International Law of Obligations in Australia, Brazil and South Africa

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How to cite this thesis

Surname, Initial(s). (2012) Title of the thesis or dissertation. PhD. (Chemistry)/ M.Sc. (Physics)/ M.A. (Philosophy)/M.Com. (Finance) etc. [Unpublished]: University of Johannesburg. Retrieved from: https://ujcontent.uj.ac.za/vital/access/manager/Index?site_name=Research%20Output (Accessed: Date). Renvoi in the private international law of obligations in Australia, Brazil and South Africa

Nikita Michaela De Pontes (201209829)

Submitted in partial fulfillment of the requirements for the degree:

Magister Legum (LLM) in International Commercial Law

the Department of Mercantile Law

under the

Faculty of Law

University of Johannesburg

Supervisor: G Bouwers TABLE OF CONTENTS

1. Introduction Page 1

2. Renvoi explained Page 2

A. Remission Page 2-3

B. Transmission Page 4

C. Rejecting renvoi Page 4-8

(i) Rejection or no renvoi approach Page 4

(a) South Africa Page 4-5

(b) Australia Page 5-8

D. Accepting renvoi Page 8-17

(ii) Partial or single renvoi approach Page 8-9

(a) South Africa Page 9-10

(b) Australia Page 10-14

(iii) Total renvoi theory Page 15

(a) South Africa, Australia and England Page 15-17

3. Conclusion Page 17-18

4. Bibliography Page 19-21 1 | P a g e

Renvoi in the private international law of obligations in Australia, Brazil and South Africa

1. Introduction

The Commonwealth of Nations is a voluntary association that consists of 53 independent and sovereign states, most of which are former British colonies or dependencies of these colonies.1 South Africa and Australia are two examples of such commonwealth countries, South Africa having its law rooted in Roman-Dutch law, English common law and customary law, as well as Australia, whose laws are also greatly influenced by the English legal system.2 Brazil, on the other hand, is an example of a civil law system.

This paper seeks to offer an analytical comparison on the different approaches that these common law and civil law countries follow when faced with the doctrine of renvoi, a doctrine, as will be discussed below, that applies when a court is faced with a conflict of law and must consider the law of another state.3

The essay will journey into the different stances that South Africa, Australia and Brazil take when confronted with the doctrine. Australia, as a common law jurisdiction, accepts renvoi, this position will be made clear. Brazil is a civil law jurisdiction with an equally clear stance to renvoi, it does not accept the doctrine. South Africa, as a mixed jurisdiction, lacks authority on renvoi and consequently has an unclear stance to the doctrine. Since both South Africa and Australia are influenced by English common law, a discussion of English case law may be necessary to illustrate the different renvoi approaches, and, in turn, may provide guidance for future application of renvoi by South African and Australian courts.

2. Renvoi explained

1 Hartman Origins (2008) 326. 2 B Brassil and D Brassil Excel Preliminary Legal Studies (2000) 22. 3 See (Anonymous) http://www.pearse-trust.ie/blog/bid/110454/The-Rule-Of-Doctrine-Of-Renvoi-Explained (05- 09-2016). 2 | P a g e

Every state has its own domestic law, which applies to local situations, as well as its own private international law, which is applied to situations usually involving a foreign element.4 If the forum (lex fori) is referred by its conflict of law rules (also known as their private international law) to the law of a foreign country, including that foreign country’s conflict of law rules, then it has accepted the doctrine of renvoi.5

“The Doctrine of Renvoi is a legal doctrine which applies when a court is faced with a conflict of law and must consider the law of another state, referred to as private international law ("PIL") rules.”6 The word “renvoi” comes from the French language and means to “send back” or “return unopened”.7 It is a legal doctrine that the courts apply when dealing with the conflict of laws, in other words, where the court has to apply the law of another state (their private international law rules). The court will adopt the rules of a foreign jurisdiction and apply them to situations where a conflict of law arises. Renvoi can take two forms, namely transmission and remission, which is discussed in further detail below.

A. Remission

Remission is an endless reference from one legal system to another and then back again to the first reference.8 An example of remission would be if B, a female English national, who is 14 years of age, goes on holiday to Australia and meets G, a male South African national, who is 26 years of age. They fall in love and after three months decide to get married in Bora Bora, as B is too young to be legally married in Australia.9 After the marriage, G and B decide to live in South Africa and make it their permanent home. The couple reside in South Africa for six years until their marriage relationship irretrievably brakes down. G decides to move out of the communal home but stays in South Africa. B, on the other hand, wants to move back to England, but before

4 Temilolu, Olayemi, Bilikis and Ojunugwa “The Significance of Renvoi to Private International Law Particularly as Regards Partial and Total Renvoi” http://legalrescue.blogspot.co.za/2013/01/the-significance-of-renvoi-to- private.html (23-08-2016). 5 Temilolu, Olayemi, Bilikis and Ojunugwa (n 4). 6 See (Anonymous) (n 3). 7 Emanuel and Rigos Multistate Essay Exam (Mee) Review (2008) 152. 8 Forsyth Private International Law: The Modern Roman-Dutch Law Including the Jurisdiction of the High Courts (2012) 91. 9 See section 26(1) of the Marriages Act 25 of 1961 which states that no girl under the age of 15 shall be capable of contracting a valid marriage unless she obtains written permission of the Minister or any officer in the public service authorized thereto by him. 3 | P a g e doing so, decides to divorce G. B approaches a court in South Africa to determine if her marriage to G was valid, considering the fact that she was only 14 years old at the time of the marriage.

From the facts above, it is clear that the scenario contains a foreign element as the parties were married in Bora Bora. A South African court will need to apply South African private international law to determine which legal system is applicable to this scenario. According to South African private international law, substantive validity of the marriage is governed by the lex loci celebrationis (the law of the place where the marriage ceremony took place).10 However, the legal and proprietary consequences of the marriage are governed by the domicile of the husband at the time of the marriage.11 The Roman-Dutch conflict rule for the substantive validity of marriages is the lex loci celebrationis. According to the law of Bora Bora, being the lex loci celebrationis, the marriage between B and G is substantively valid, as the minimum legal age for marriage is 14.12

The marriage is valid in terms of Bora Bora’s internal law, however, according to its private international law, the conflict rule to be applied to the validity of marriage is the lex domicilii (law of the domicile) of the husband at the time of the marriage.13 In the example, G was domiciled in South Africa, and according to section 26(1) of The Marriages Act 25 of 1961:

“No boy under the age of 18 years and no girl under the age of 15 years shall be capable of contracting a valid marriage except with the written permission of the Minister or any officer in the public service authorized thereto by him, which he may grant in any particular case in which he considers such marriage desirable….”

According to the example, in terms of South African law no valid marriage existed between B and G, as B was 14 years of age at the time of the marriage and never obtained the required permission. In the above example, South African law referred to Bora Bora law, which referred the matter back to South African law. Forsyth states that, this example shows a “theoretically infinite reference from one legal system to another and prevents the selection of a lex causae — which, after all, is the object of the exercise — and constitutes the problem of renvoi.”14

10 Steyn v Steyn [2010] ZAWCHC 224 par 34. 11 See Frankel’s Estate v The Master 1950 (1) SA 220. 12 So assumed for purposes of this discussion. 13 So assumed for purposes of this discussion. 14 Forsyth (n 8) 91. 4 | P a g e

B. Transmission

In the case of transmission, where the foreign country’s private international law is applicable to the circumstances of the case, instead of remitting the case back to the law of the original country (remission), it transmits it to the law of a third country.15 An example of transmission would be if, as in the previous example, South African private international law referred the case to Bora Bora law. Bora Bora’s private international law does not refer the case back to South African law, but to the law of England. English private international law then refers the case to the law of South Africa or another country’s law.

There are three different approaches to renvoi, namely no-renvoi or rejection of renvoi approach, single or partial renvoi approach and the double or total renvoi theory. The first approach rejects renvoi while the last two approaches accept the doctrine.

C. Rejecting Renvoi

(i) Rejection or no-renvoi approach

Forsyth states that, “the no-renvoi approach is based upon the assertion that a reference to the law of X in a conflict rule of the forum excludes X’s conflict rules”.16 This means that when a case contains a foreign element, the forum has to apply its private international law to determine which legal system is applicable to the case at hand. Once the forum has made this determination, it will apply the internal law of the country to which the forum’s conflict rule referred to. Therefore, the forum will look at the lex causae’s internal laws in dealing with the case at hand, instead of looking at the lex causae’s private international law. With regard to the earlier example, this is the situation whereby South African law refers the matter to the law of Bora Bora (lex loci celebrationis). A South Africa court would now look at the internal law of Bora Bora thereby applying a no-renvoi approach to the situation.

(a) South Africa

South Africa follows a no-renvoi approach in terms of its private international law. The choice of law rule which applies domicile as a connecting factor, directs the court to apply the law of a

15 Hill and Ní Shúilleabháin Clarkson and Hill's Conflict of Laws (2016) 34. 16 Forsyth (n 8) 95. 5 | P a g e foreign state, in which the South African court will look at the lex causae’s internal law, and not their private international law.17 According to section 4 of the Domicile Act,18 when South African courts are faced with a case which has a foreign element, the court will apply its private international law to determine which law is applicable to the situation. Where the lex domicilli refers to the law of another country, South African courts will look at the internal law of that country. In terms of South African legislation,19 when the choice of law rule to be applied is the lex domicilli, a South African court will adopt a rejection or no-renvoi approach, thereby applying the internal law of the lex causae.20

Section 3bis of the Wills Act,21 as amended by section 6 of the Law of Succession Amendment Act,22 deals with the formal validity of wills completed in accordance with the internal law of the lex causae, and is another instance where South Africa follows the rejection or no-renvoi approach.23 As mentioned in section 3bis (1) -(5) of the Wills Act,24 the court will determine the validity of the will in accordance with the internal law, and not the private international law of the lex causae.

(b) Australia

It seems that Australia applies a rejection of renvoi or no-renvoi approach in situations where the parties have expressly chosen a law to govern their contract. Nygh, referring to Amin Rasheed Shipping v Kuwait Insurance,25 states that when the parties to the contract expressly select a foreign law to govern their contract, they are choosing the internal law of that country and not their private international law.26 This means that if the parties to the contract (who have instituted the matter in an Australian court) select French law to govern their contract, an Australian court

17 Forsyth (n 8) 93. 18 S 4 of the Domicile Act 3 of 1992. 19 S 4 of the Domicile Act (n 18). 20 Neels “Die gedeeltelike uitsluiting van renvoi in resente wetgewing” 1992 TSAR 739. 21 S 3bis of the Wills Act 7 of 1953. 22 Law of Succession Amendment Act 43 of 1992. Section 6 of the Law of Succession Amendment Act 43 of 1992 amended section 3bis of the Wills Act 7 of 1953. 23 Forsyth (n 8) 95. 24 S 3bis (1) -(5) of the Wills Act (n 21). 25 [1984] AC 50. 26 Nygh Autonomy in International Contracts (1999) 90. Nygh also refers to Article15 of the Rome Convention on the Law Applicable to Contractual Obligations 1980, Article15 of The Hague Sales Convention 1986, Article 17 of the Inter-American Convention on the Law Applicable to International Contracts (Mexico Convention) and Article 14.1 of Switzerland’s Federal Code on Private International Law (CPIL) which reflects the same principle. 6 | P a g e must apply the internal French law and not their private international law. In these circumstances, the court is understood to be applying the rejection or no-renvoi approach.

The Australian case of O’Driscoll v J Ray McDermott 27 dealt with a personal injury claim arising from an alleged breach of an employment contract, brought by the employee against the employer. The contract of employment, concluded in Singapore, provided that an employee was to conduct work in different places in South-East Asia as a quality control inspector.28 The employee, whilst on a barge in Indonesian territorial waters, was required to inspect a specific area of the work, which involved him crossing scaffolding boards on the barge.29 Whilst carrying out the inspection, one of the scaffolding boards shifted, and as a result, the employee alleged that he fell and was injured.30 The employee commenced action in the District Court of Western Australia, which then went on appeal to the Supreme Court of Western Australia. The court in the absence of a choice of law by the parties, decided that the proper law of the contract had to be determined objectively.31 The court then found that the proper law of the contract was the law of the Republic of Singapore. In terms of the employee’s claim, there were certain limitation periods that were applicable. In Western Australia, the limitation period was 6 years, but in terms of the law of Singapore, whose limitation period was 3 years, the claim would have been time- barred.

In the Supreme Court of Western Australia, the employee argued that the summary judgment should not have been ordered by the District Court of Western Australia, because the respondent had failed to adduce expert evidence of Singapore's choice of law rules. McLure JA stated that:

“No such evidence was adduced at the original hearing because the preponderance of academic and other opinion before the High Court decision in Neilson was that under Australian conflict rules, the lex causae did not include the choice of law or other conflict of law rules of a foreign country to which our choice of law rules direct us (what is referred to as the "no renvoi solution"). Neilson was delivered after the determination of the summary judgment application the subject of this appeal.”32

27 2006 WASCA 25. 28 (n 27) 9. 29 (n 27) 9. 30 (n 27) 9. 31 O’Driscoll case (n 27) 12. Also see Harder “Statues of limitation between classification and renvoi Australian and South African approaches compared” International and Comparative Law Quarterly 2011 (ICLQ) 659 669. 32 O’Driscoll case (n 27) 6. 7 | P a g e

The court then had to determine the relevance of Singapore’s choice of law rules. The court, after determining that the proper law, according to Australia’s conflict rules, was the law of Singapore, decided to examine Singapore’s choice of law rules, as this was in line with the “no advantage rule” applied in Neilson v Overseas Projects Corporation of Victoria Ltd.33 The “no advantage rule” according to Garnett, aims to:

“… prevent parties from obtaining an advantage by choice of forum. Such an advantage should be nullified by the Australian court adopting the same approach on choice of law and so striving to reach the same outcome as the foreign court of the law of the cause of action.” 34

The court found that in terms of the law of Singapore (as if the Singaporean court was the forum in this case), a Singaporean court would have applied the proper law, which would also have been the law of Singapore. Fortunately, there was no conflict between the Australian and Singaporean conflict rules as both had referred the matter to the law of Singapore.

According to Mortensen, Garnett and Keyes, there was no renvoi on the facts of the O’Driscoll case.35 However, McLure JA held further that, if she had not come to the same conclusion, more evidence would have been required on the choice of law rules of Singapore and whether Singapore would have applied renvoi.36 Garnett points out that, the achievement of uniformity would have been a difficult task if Singapore’s choice of law rules had referred to the law of Indonesia instead of the law of Singapore.37

Mortensen, Garnett and Keyes, with reference to the decision in the Amin Rasheed Shipping v Kuwait Insurance,38 provides the following example: “If the law of Hentzau is held by reference to objective criteria to be the proper law of a contract, it is the internal law of Hentzau alone that comprises the proper law.”39 As stated by McDougall J in Proactive Building Solutions v Mackenzie Keck:40

33 2005 HCA 54. 34 Garnett Substance and Procedure in Private International Law (2012) 3.09. 35 Mortensen, Garnett and Keyes Private International Law in Australia (2015) 418. 36 O’Driscoll case (n 27) 8. 37 Garnett Australian Private International Law for the 21st Century (2014) 103. 38 Amin Rasheed Shipping case (n 25). 39 Mortensen, Garnett and Keyes Private International Law in Australia (2011) 417. 40 2013 NSWSC 1500. 8 | P a g e

“The decision of the High Court of Australia in Neilson v Overseas Projects Corporation of Victoria Limited (2005) 223 CLR 331 dealt with the question of whether the doctrine of renvoi is part of the Australian choice of law rules in cases of tort. As I understand it, the majority in that case held, for various reasons, which do not now need to be explored, that it was. However, the orthodox doctrine is that the doctrine of renvoi plays no part in the choice of law rules concerning contracts, at least where the governing law of the contract has been the matter of express decision by the parties.”41

As illustrated by the case law above, Australian courts tend to apply a rejection of renvoi or no- renvoi approach to contracts in instances where the parties have expressly chosen a law to govern their contract.42

Brazilian private international law does not recognise the doctrine of renvoi.43 According to article 16 of the Introduction to the Brazilian Civil Code, Decree-Law no. 4.657, of 1942, “when in the terms of the preceding articles, a foreign law is to be applied, only its content shall be considered, without considering any remission made by it to another law”.44 From 1930 to the enactment of the Civil Code of 1942, Brazilian jurisprudence proposed the adoption of renvoi as there was no legal text on whether or not renvoi was applicable before 1942.45 Brazilian legislators have, however, been criticised for the adoption of this legal text, as some find it to be incompatible with the doctrine of renvoi and the uniform national jurisprudence.46

D. Accepting renvoi

(ii) Single or partial renvoi approach

The single or partial renvoi approach is applicable where the lex fori’s conflict rules refers to the lex causae conflict rules. If the lex causae’s conflict rules refers to the law of a third state (transmission), or the law of the lex fori (remission), the lex fori accepts that reference, and will stop there. If a South African court approached the set of facts in the abovementioned example,

41 (n 40) par 27. 42 Mortensen, Garnett and Keyes (n 35) 322-323. 43 Tiburcio “Private international law in Brazil: a brief overview” 2013 Panorama of Brazilian Law (PBL) 11 26. 44 Tiburcio (n 43) 26. (Hereinafter referred to as the “Civil Code of 1942”). 45 de Maekelt Recueil des Cours Recueil des Cours Collected courses of The Hague Academy of International Law 1982 (1982) 277. Judgments of the Court of Appeals of Sâo Paulo and another of the Supreme Federal Court serve as illustrations of the courts accepting renvoi. 46 De Maekelt (n 45) 277. 9 | P a g e by applying the single or partial renvoi method, the matter would have been referred to the law of Bora Bora in terms of the South African conflict rule, and, from there, back to the law of South Africa, in terms of the Bora Bora conflict rule, the reference would then stop there. The reason there is no onwards reference is that, when a country adopts a single or partial renvoi approach, there is an assumption that the lex causae adopts a no-renvoi approach.47 Therefore, a South African court would look at the internal law of Bora Bora and not its private international law. Forsyth states that “(t)he partial renvoi approach accepts that there may be onwards reference by the lex causae referred to by the conflicts rules of the lex fori but asserts that there can be only one such reference.”48

(a) South Africa

There is no South African case law dealing with single or partial renvoi. There has, however, been a Zimbabwean decision which applied the single renvoi approach. Ex Parte Low: In re Estates Mangan,49 appears to be the only Southern African case in which such an approach was employed.50 The case dealt with the material validity of Michael Mangan’s will, in which Mangan had disposed of movable assets situated in Rhodesia (now known as Zimbabwe). Mangan was born in Ireland, but resided in Bulawayo in 1905. That same year, Mangan left Bulawayo and moved to Belgian Congo, where he obtained work on a mine.51 On 23 September 1913, Mangan died in Belgian Congo and left behind a written will.52 The court, when testing the material validity of the will, held that in terms of Roman-Dutch law, the conflict rule which applied in such instances is the law of the deceased’s domicile.53 The problem faced by the court was whether Mangan had acquired a domicile in Belgian Congo, or whether he was still domiciled in Ireland. Russell J found it unnecessary to determine where Mangan was actually domiciled.54 He was satisfied that Mangan executed his will in Belgian Congo, and was also a resident there from the time of execution until the time of his death, whilst retaining his British nationality.55 It was not necessary to determine Mangan’s domicile in this instance, because in 47 Forsyth (n 8) 97. 48 Forsyth (n 8) 97. 49 1915 SR 147. 50 Forsyth (n 8) 98. 51 Forsyth (n 8) 148. 52 Forsyth (n 8) 148. 53 Forsyth (n 8) 148. 54 Ex Parte Low case (n 49) 150. 55 (n 49) 150. 10 | P a g e terms of the law of Belgian Congo (Congolese law), the conflict rule to determine the validity of wills is the law of the nationality of the deceased.56 On the facts of the case, Mangan’s nationality was indeed Irish. Even if Mangan was still domiciled in Ireland, Irish law (common law) would have applied.57 The court therefore found that Irish law was applicable to determine the validity of his will.58

This case illustrates the application of partial or single renvoi. Russel J was faced with a matter in which a foreign element was involved.59 Having to revert to the private international law of Rhodesia, it was determined that the conflict rules applicable to test the validity of the will was the lex loci domicilli.60 Whether Mangan was domiciled in Belgian Congo or Ireland did not affect the outcome of the case, as both the law of Belgian Congo as well as the law of Ireland would refer the matter to Irish law.61 Therefore, even if Mangan was domiciled in Belgian Congo the court would not consider internal Congolese law, but rather their conflict rules.62 On this basis it was found that the law of Belgian Congo referred to Irish law.63 The court did not require any further evidence about what an Irish court would have done if the matter was referred to it, as it was assumed that Belgian Congo adopted a no-renvoi approach, and therefore, a single or partial renvoi approach was adopted.64

(b) Australia

In Neilson & Anor v Overseas Projects Corp of Victoria Ltd,65 the Australian High Court adopted a partial or single renvoi approach in the case of torts.66 In this matter, the plaintiff resided and was domiciled in Western Australia.67 The plaintiff’s husband concluded an employment contract with the defendant, a company registered in Victoria, for purposes of doing work in the People’s

56 Ex Parte Low case (n 49) 150. 57 Forsyth (n 8) 98. 58 Ex Parte Low case (n 49) 150. 59 (n 49) 150. 60 (n 49) 150. 61 (n 49) 150. 62 (n 49) 150. 63 (n 49) 150. 64 (n 49) 150. 65 2002 WASC 231. 66 Davies "Renvoi and presumptions about foreign law: Neilson v Overseas Projects Corporation of Victoria Ltd" 2006 Melbourne University Law Review (MelbULawRw) 244 248. 67 Neilson & Anor case (n 65) 6. 11 | P a g e

Republic of China in 1990.68 In terms of the contract of employment, the plaintiff’s husband was entitled to an apartment in Wuhan (China), which included a provision for the plaintiff to accompany her husband whilst he was conducting work there.69 In October 1991, the plaintiff was severely injured when she fell down the staircase in the apartment where they were residing.70 This was due to the absence of balustrade at the top of the stairwell.71 Prior to the plaintiff’s injury, she complained on several occasions about this issue, highlighting the possible dangers of failing to erect a balustrade.72

The plaintiff, upon returning to Australia, instituted a claim in the Supreme Court of Western Australia, in contract and tort, against the defendant for occupier’s liability.73 With regard to the claim in tort, the court applied the choice of law rule as applied in John Pfeiffer Pty Ltd v Rogerson,74 and Regie National des Usines Renault SA v Zhang,75 where the courts abolished the double actionability test, and instead, applied a blanket lex loci delicti principle (the law of the place where the delict was committed), both intra-national and international. Which, in the present case, was China.76 The court looked at Chinese choice of law rules and found that in terms of Article 146 of The General Principles of Civil Law of the People’s Republic of China 1986:

“The law of the place where an infringing act is committed shall apply in handling compensation claims for any damage caused by the act. If both parties are citizens of the same country or have established domicile in another country, the law of their own country or the country of domicile may be applied.”

The Chinese choice of law rule for torts was the lex loci delicti, which resembled the Australian choice of law rule. However, unlike the Australian position, there was an exception in Article 146, which provided that, if the parties had a common nationality or domicile, the law of the nationality (lex patriae) or the law of domicile (lex loci domicilii) may apply.77 McKechnie J choose to apply Australian law to the case as both parties to the action were Australian, despite

68 Neilson & Anor case (n 65) 7. 69 Neilson case (n 33) par 67. 70 (n 33) par 68. 71 (n 33) par 29. 72 (n 33) par 29. 73 (n 33) par 2. 74 2000 172 ALR 625; 2000 203 CLR 503. 75 [2002] HCA 10; (2002) 210 CLR 491. 76 Ahern “Renvoi’s Australian outing” 2007 Irish Student Law Review (ISLR) 89 91. 77 Mortensen, Garnett and Keyes (n 35) 218. 12 | P a g e the fact that the delict occurred in China.78 Ahern is of the opinion that McKechnie J considered the second sentence in Article 146 as a complementation of the mandatory choice outlined in the first sentence, rather than an exception to it.79 The approach taken by Mckechnie J was seen as the partial or single renvoi approach.80 The single renvoi approach was adopted as Chinese choice of law rules were considered and the judge applied Australian domestic law.81

The insurer appealed to the Full Court of the Supreme Court,82 where the court considered the judgment by McKechnie J, more specifically, whether the doctrine of renvoi applied to international torts.83 McLure J, in summary, found there to be no binding authority in which renvoi applied in tort cases.84 He highlighted the academic opinion and criticism surrounding the application of renvoi to torts and the doctrine in general.85 McLure J concluded that a no-renvoi solution should apply, and that the lex loci delicti referred to the internal or domestic law of the place where the wrong was committed.86 McLure J therefore disagreed with the decision made by McKechnie J, in which he applied Australian domestic law to the tort claim.87

The matter was then taken on appeal to the High Court of Australia.88 The court first determined whether the choice of law rule in Zhang,89 which was the lex loci delicti, required the court to look at the entire foreign law (including their choice of law rules), or only their domestic law. The majority of the High Court (Gleenson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) stated that when an Australian choice of law rule refers the matter to the law of a foreign country, it is necessary to apply their choice of law rules in order to determine what law the foreign court would have referred to.90 The judges were in agreement that the entire Chinese law (including their choice of law rules) was to be considered.91 78 Neilson & Anor case (n 65) par 204; 207- 208. 79 Ahern (n 76) 91. 80 Mortensen, Garnett and Keyes (n 35) 218. 81 Davies, Bell and Brereton Nygh’s Conflict of Laws in Australia (2010) 319. 82 Mercantile Mutual Insurance (Australia) Ltd v Neilson (2004) WASCA 60. 83 (n 82) par 1. 84 (n 82) par 39. 85 (n 82) par 39. 86 (n 82) par 48. 87 (n 82) par 48. 88 Neilson case (n 33) 54. 89 Regie National des Usines Renault SA case (n 75). 90 Garnett (n 37) 101. Five of the six judges in the majority went even further, stating that an enquiry into whether the foreign law’s rules recognise or ignore renvoi is necessary and once determine must be applied as if such rules exist or is pleaded by the parties (Callinan J disagreed with this point made by the rest of the judges). 91 Davies, Bell and Brereton (n 81) 319. 13 | P a g e

Kirby J agreed with the judgment in Zhang,92 that the duty of a primary judge is to determine, by the use of sources and evidence available to the court, how a foreign court would resolve the substantive rights of the parties, assuming that the matter was before the foreign court itself.93 In order to fulfil this duty, it would be necessary in the present case to determine how the Chinese court, in applying Australian law, would deal with the matter at hand. Evidence needed to be lead as to whether a Chinese court would accept or reject renvoi, however, this evidence was not forthcoming.94 Due to the unavailability of evidence, Gleeson CJ, Gummow, Hayne and Heydon JJ accepted that the court was free to use Australian principles to interpret the Chinese choice of law rules.95 It concluded that the Chinese court would ignore renvoi (apply a no-renvoi approach), and in doing so, it would apply the internal law of Western Australia. 96 This would include the limitation period (which was six years) and, therefore, the claim would not be barred.97

According to Davies, Bell and Brereton, the majority of the judges (Gleenson CJ, Gummow, Callinan, Hayne, and Heydon JJ) “…approached the case in a manner consistent with double renvoi, which called for consideration of the Chinese renvoi rule as well as the other Chinese choice of law rules.”98 However, none of the judges were prepared to commit to the use of double renvoi in all cases.99 Although there was insufficient evidence with regard to the Chinese position to renvoi, the judges agreed that the Chinese court would have applied the internal law of Australia, and not Australian choice of law rules.100 The judges therefore assumed that Chinese law had a no-renvoi rule.101 Kirby J disagreed with this assessment, stating that such a conclusion could not have been reached due to a lack of evidence.102 Despite this, the majority of the judges 92 Regie National des Usines Renault SA case (n 74). 93 Neilson case (n 33) par 191. 94 Mortensen, Garnett and Keyes (n 35) 219. 95 Mortensen, Garnett and Keyes (n 35) 219. 96 Mortensen, Garnett and Keyes (n 35) 219. 97 Mortensen, Garnett and Keyes (n 35) 219. 98 Davies, Bell and Brereton (n 81) 320. Also see Mortensen, Garnett and Keyes (n 35) 216, where double renvoi also known as the foreign court theory is explained as follows the forum court in accordance with its own choice of law rules refers the matter to the law of Ruritania. The forum court will then decide how a court in Ruritania would decide the case after the Ruritania court had applied its solution to the problem of renvoi. Therefore, the double renvoi or foreign court theory adopts whatever solution the court in Ruritania adopts thereby adopting the result in case that the Ruritania court would have reached after applying its own choice of law rules and it solution to renvoi (which could either be rejecting renvoi or accepting renvoi). 99 Davies, Bell and Brereton (n 81) 320. 100 Davies, Bell and Brereton (n 81) 320. 101 Davies, Bell and Brereton (n 81) 320. 102 Neilson case (n 33) par 207. Also see Davies, Bell and Brereton (n 81) 320. 14 | P a g e applied a single renvoi approach in this matter, even though the court tried to determine whether Chinese law rejected or accepted renvoi.103 Due to insufficient evidence, it lead to the court to assume that China adopted a no-renvoi approach.104 The court therefore adopted a single renvoi approach.

The Civil Code of Brazil No. 3,071 of 1916 made no particular mention of the renvoi doctrine.105 Dolinger, however, provides that there were authorities in favour of accepting renvoi.106 Furthermore, a single or partial renvoi approach seem to have been adopted by Brazilian courts, as they were in favour of accepting the remission that was made by the foreign law.107 Prior to 1942, the courts were in favour of accepting single renvoi in family cases.108 For example, in terms of Brazilian private international law, the applicable law is the law of the nationality of the parties (lex patriae).109 According to Dolinger, a court in São Paulo was faced with a matter concerning the property system of a German couple.110 The couple were married and lived in Brazil.111 In terms of Brazilian private international law, the law of the party’s nationality would apply (Germany).112 However, in terms of German private international law, the applicable law was the law of domicile (Brazil).113 The court in São Paulo accepted renvoi, and by doing so, applied Brazilian law.114 This position changed after the enactment of article 16 of the Introduction to the Brazilian Civil Code of 1942, as Brazilian private international law expressly rejected renvoi.

(iii) Total renvoi theory

103 (n 33) par 259. 104 (n 33) par 259. 105 Dolinger Private International Law in Brazil (2011) 81. 106 Dolinger (n 105) 81. 107 Dolinger (n 105) 81. 108 Dolinger (n 105) 82. 109 Dolinger (n 105) 82. 110 Dolinger (n 105) 82. 111 Dolinger (n 105) 82. 112 Dolinger (n 105) 82. 113 Dolinger (n 105) 82. 114 Dolinger (n 105) 82. 15 | P a g e

The total renvoi theory applies where the lex fori accepts an onwards reference by the conflict rules of the lex causae (the legal system that the lex fori’s conflict rules has referred).115 Thereafter, the lex fori has to determine the lex causae’s solution to the doctrine of renvoi.116 With the partial or single renvoi approach, there is an assumption that the lex causae adopts a no- renvoi approach, whereas he total renvoi theory determines, how the lex causae would decide the dispute, including the application of the lex causae’s approach to renvoi.117

If a South African court had to approach the set of facts in the abovementioned example, by applying the total renvoi theory, then the court would have to determine not only how the courts in Bora Bora would decide the dispute, but also their solution to renvoi. If the Bora Bora courts applied a no-renvoi approach to the dispute, thereby applying South African internal law, then the South African court would do the same. If the Bora Bora courts applied a partial renvoi approach (accepts reference back to the law of Bora Bora), and applies its own law, then South African courts will do so as well. There are instances where the total renvoi theory completely breaks down. For example, when the foreign court applies a total renvoi approach, the lex causae would determine what solution to renvoi the lex fori adopts, while at the same time, the lex fori determines what solution to renvoi the lex causae adopts.118 However, if it is clear that the lex causae adopts a no-renvoi or partial renvoi approach, no issue would arise and uniformity of decisions would result.119

(a) South Africa, Australia and England.

This theory has been applied knowingly, and unknowingly in a number of English cases.120 In Re Annesley,121 the testatrix, a British national domiciled in France, died in France leaving behind a will.122 The question before the English court concerned the succession to the movable property bequeathed in the will, which, according to English law, was governed by the lex loci domicilli (French law), and, in terms of French law, by the lex patriae (English law).123 In applying the

115 Forsyth (n 8) 99. 116 Forsyth (n 8) 99. 117 Forsyth (n 8) 99. 118 Forsyth (n 8) 99. 119 Forsyth (n 8) 99. 120 Forsyth (n 8) 100. 121 1926 Ch 692. 122 Mortensen, Garnett and Keyes (n 35) 220. 123 Mortensen, Garnett and Keyes (n 35) 220-221. 16 | P a g e total renvoi approach, Russel J had to determine how a French court, if the matter was heard in France, would approach the renvoi doctrine.124 It was held that a French court would have adopted a single renvoi approach, meaning that a French court would refer the matter to English law, and then accept a further reference back to French law, thereby applying internal French law.125 The case clearly illustrates the application of the total renvoi approach, as the English court did not apply the single renvoi approach from the perspective of an English court.126 Instead it applied the single renvoi approach as it would have applied in a French court, had the matter been heard there.127

In this case, the only reason why the total renvoi theory worked, was because French law was determinable and because France adopted a single renvoi approach. However, if the foreign country’s approach to renvoi cannot be determined, the court would assume that the lex causae adopts the same approach to renvoi as the lex fori. Therefore, if the court adopts a total renvoi approach then the foreign country is assumed to adopt the same approach, or, if it is determined that the foreign country adopts a the total renvoi approach, the renvoi doctrine will be unworkable in both instances as the lex fori as well as the lex causae applies the total renvoi approach.

It is the opinion of the current author that South African and Australian courts should not adopt the total renvoi approach as such presumptions could lead to inconclusive results.128 Schoeman is also of the opinion that, if it cannot be determined what the foreign court’s approach toward renvoi is, courts will traditionally apply the lex fori on the presumption that the foreign country adopts the same approach as the lex fori.129

In South Africa, unless there is expert evidence to the contrary, it is presumed that the foreign law is identical to the lex fori, and therefore, the court will apply the lex fori. For example, if a South African court adopts a total renvoi approach and the foreign law cannot be proved, then it is presumed that the foreign court, like South Africa, adopts a total renvoi approach.130 Forsyth is

124 Mortensen, Garnett and Keyes (n 35) 220-221. 125 Mortensen, Garnett and Keyes (n 35) 220-221. 126 Mortensen, Garnett and Keyes (n 35) 220-221. 127 Mortensen, Garnett and Keyes (n 35) 220-221. 128 Re Annesley case (n 121). 129 Schoeman “Renvoi: throwing (and catching) the boomerang – Neilson v Overseas Projects Corporation of Victoria Ltd’ 2006 University of Queensland Law Journal (U Queensland L.J.) 203 206. 130 Forsyth (n 8) 100 and 119. 17 | P a g e of the opinion that, where both the lex fori as well as the lex causae adopts a total renvoi approach, the theory will, as a result, be unworkable.131 Therefore, the current author suggests that with the use of a single or no-renvoi approach, a more certain answer may prevail.

According to Davies, Bell and Brereton, the total renvoi approach (also known as the foreign court theory in Australia) has been applied to cases of formal validity of wills; intrinsic validity of wills of movables; intrinsic validity of wills of immovable property; intestate succession to movables; the recognition of foreign legislations at common law and it seems that it also applies to immovable property.132

3. Conclusion

South African law does not have any case law where renvoi is applied, however, there is legislation in place to specifically exclude renvoi in areas of the law dealing with domicile and validity of wills.133 Similarly, article 16 of the Introduction to the Brazilian Civil Code 1942, expressly excludes the doctrine. On the other hand, Australian private international law seems to have taken a different stance, at least in certain areas of the law.134 Although Australian courts tend to a apply a rejection of renvoi or no-renvoi approach to contracts in instances where the parties have expressly chosen a law to govern their contract or where the proper law has been objectively determined, Australian private international law has adopted the doctrine of renvoi in international tort cases, and according to Davies, Bell and Brereton, renvoi also applies to the formal validity of wills; intrinsic validity of wills of movables; intrinsic validity of wills of immovable property; intestate succession to movables; the recognition of foreign legislations at common law, and it seems that it also applies to immovable property.135 Despite South Africa and Brazil having different legal traditions, it is apparent that both countries have adopted a similar stance with regard to renvoi. If all the legal systems of the world applied the same approach to renvoi, there would be a far greater measure of harmonisation. According to Forsyth the fundamental purpose of private international law is to achievement of uniformity of decision, such uniformity can be achieved through the unification of the relevant choice of law rules,

131 Forsyth (n 8) 100. 132 Davies, Bell and Brereton (n 81) 321. 133 Thomashausen “Some problems in the application of South African private international law” 1984 CILSA 78. 134 Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 221 ALR 213. 135 Davies, Bell and Brereton (n 81) 321. 18 | P a g e however until such is achieved, uniformity will have to be sought in a world where different states have different choice of law rules.136 This would be achieved through the application of the single or no-renvoi approach, as the application of total renvoi, may lead to inconclusive results in certain instances.

136 Forsyth “Certainty versus uniformity: renovi in the context of movable property” 2010 JPIL 637 646. 19 | P a g e

4. Bibliography: Books and journal articles

Ahern “Renvoi’s Australian outing” 2007 ISLR 89

Belinda Brassil and Dimity Brassil Excel Preliminary Legal Studies Pascal Press New South Wales (2000)

Davies M Bell A and Brereton P Nygh’s Conflict of Laws in Australia Lexis Nexis Australia (2010)

Davies M "Renvoi and presumptions about foreign law: Neilson v Overseas Projects Corporation of Victoria Ltd" 2006 Melbourne University Law Review (MelbULawRw) 244 de Maekelt T Recueil des Cours Collected courses of The Hague Academy of International Law 1982 Martinus Nijhoff Publishers Netherlands (1982)

Dolinger Private International Law in Brazil Kluwer Law International Brazil (2011)

Emanuel S and Rigos JJ Multistate Essay Exam (Mee) Review Aspen Publishers Online New York (2008)

Forsyth CF “Certainty versus uniformity: renovi in the context of movable property” 2010 JPIL 637

Forsyth CF Private International Law: The Modern Roman-Dutch Law Including the Jurisdiction of the High Courts Juta and Company Ltd Cape Town (2012)

Garnett R Australian Private International Law for the 21st Century Bloomsbury Publishing London (2014)

Garnett Substance and Procedure in Private International Law Oxford University Press United Kingdom (2012)

Harder S “Statues of limitation between classification and renvoi- Australian and South African approaches compared” 2011 International and Comparative Law Quarterly (ICLQ) 659

Hartman MI Origins Lulu.com North Carolina (2008)

Hills J and Ní Shúilleabháin M Clarkson and Hill’s Conflict of Laws Oxford University Press United Kingdom (2016)

Mortensen R Garnett R and Keyes M Private International Law in Australia Lexis Nexis Butterworths Australia (2011)

Mortensen R Garnett R and Keyes M Private International Law in Australia Lexis Nexis Butterworths Australia (2015) 20 | P a g e

Neels JL “Die gedeeltelike uitsluiting van renvoi in resente wetgewing” 1992 TSAR 739

Nygh PE Autonomy in International Contracts Clarendon Press United Kingdom (1999)

Schoeman E “Renvoi: throwing (and catching) the boomerang – Neilson v Overseas Projects Corporation of Victoria Ltd’ 2006 University of Queensland Law Journal (U Queensland L.J.) 203

Thomashausen “Some problems in the application of South African private international law” 1984 CILSA 78

Tiburcio “Private international law in Brazil: a brief overview” 2013 Panorama of Brazilian Law (PBL) 11

List of cases

South Africa

Ex Parte Low: In re Estates Mangan 1915 SR 147

Frankel’s Estate v The Masters 1950 (1) SA 220

Steyn v Steyn [2010] ZAWCHC 224

Australia

John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625; (2000) 203 CLR 503

Mercantile Mutual Insurance (Australia) Ltd v Neilson (2004) WASCA 60

Neilson & Anor v Overseas Project Corp of Victoria Ltd [2002] WASC 231

Neilson v Overseas Projects Corporation of Victoria Ltd 2005 HCA 54

Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 221 ALR 213

O’Driscoll v J Ray McDermott (2006) WASCA 25

Proactive Building Solutions v Mackenzie Keck [2013] NSWSC 1500

Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491

United Kingdom

Amin Rasheed Shipping v Kuwait Insurance [1984] AC 50

Re Annesley [1926] Ch 692

Internet sources 21 | P a g e

(Anonymous) http://www.pearse-trust.ie/blog/bid/110454/The-Rule-Of-Doctrine-Of-Renvoi- Explained (05-09-2016)

Temilolu, Olayemi, Bilikis and Ojunugwa “The Significance Of Renvoi To Private International Law Particularly As Regards Partial And Total Renvoi” http://legalrescue.blogspot.co.za/2013/01/the-significance-of-renvoi-to-private.html (23-08- 2016)

Legislation

South Africa

Divorce Act 70 of 1979

Domicile Act 3 of 1992

Law of Succession Amendment Act 43 of 1992

Marriages Act 25 of 1961

Wills Act 7 of 1953