Send back rule and the doctrine of renvoi

The "send back" rule, rooted in the "doctrine of renvoi," has been a significant legal principle and methodology in conflict of laws and private international law. This doctrine's historical importance in legal contexts has persisted for a considerable period. However, the doctrine has resurfaced in several jurisdictions and cases involving multinational corporations operating across multiple jurisdictions, necessitating a reevaluation and clarification of its application.

The term "renvoi" originates from French, signifying a return or referral to a foreign court or jurisdiction. The doctrine of renvoi is pivotal in determining the choice of law rules, particularly when a forum court is required to consider another country's law. Generally, the court must initially evaluate its jurisdiction to adjudicate the case, addressing the potential for forum shopping—intentional manipulation of the legal system by plaintiffs to evade local jurisdiction or delay justice.

In cases governed by the doctrine of renvoi, the court must first ascertain whether it possesses jurisdiction over the matter, which involves determining if the plaintiff seeks to exploit the legal system through forum shopping or attempts to delay justice. The court then categorizes the case elements, assigning each to its appropriate legal classification, each of which has one or more choice of law rules attached to it.

The court subsequently applies the relevant choice of law rules. Throughout this process, the court endeavors to mitigate potential damages resulting from forum shopping, striving to apply the same law uniformly, regardless of where the case is litigated, to attain a consistent outcome.

For jurisdictions lacking or not applying the doctrine of renvoi, the court may only reference specific provisions of the relevant law, ensuring uniformity in outcomes. However, if the other jurisdiction employs choice of law rules mandating the application of its own laws, a disparity in outcomes may arise depending on the plaintiff's forum selection.

The nature of this disparity hinges on whether the other state operates a "single renvoi" system, which consistently refers to the other law's choice of law rules. If such a system exists, the court accepts the first remission, applying its own laws. Consequently, equality of outcomes is achieved if the competing laws operate under different systems.

Conversely, if both laws operate with either no renvoi system or a single renvoi system, forum shopping may become problematic.

An alternative system, known as the "double renvoi" or Foreign Courts Doctrine, aims to maintain parity of result by requiring the forum court to consider itself as the foreign court, adjudicating the matter similarly to a foreign court. This system ensures equitable results provided no other relevant law is invoked. While the doctrine's complexity and unpredictable outcomes have led some multinational companies to avoid its application, its utilization has been generally confined to validities of wills, intestate succession, and retrospective legitimization of marriages.

However, there are emerging indications that the doctrine might extend to family law issues, such as capacity to marry and the formal validity of marriage, particularly in certain US states. Nonetheless, the role of renvoi is gradually diminishing globally, with limited current application outside family private matters due to varying legal frameworks governing these areas.