Introduction to Renvoi in Private International Law

PERTANYAAN

What is renvoi in private international law? What is the renvoi process and how does it affect the resolution of a case? Does every country allow renvoi?

INTISARI JAWABAN

Renvoi, also known as the doctrine of re-designation, can be used to avoid the application of the lex causae that has been determined based on normal international civil law procedures and change the reference to another rule or legal system.

The renvoi process itself is categorized into 2 types, namely remission and transmission. Renvoi provides space for the court to determine which rule or legal system is considered the best for resolving international civil law cases. However, its existence is widely opposed because it is considered contrary to the principle of freedom of contract of the parties.

Please take a look at the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Mengenal Renvoi dalam Hukum Perdata Internasional, written by Ulya Yasmine Prisandani, S.H., LL.M dari International Business Law Program Universitas Prasetiya Mulya which is published on Friday, 18 December 2020.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Definition of Renvoi

Bayu Seto Hardjowahono in his book Dasar-Dasar Hukum Perdata Internasional explains that renvoi, also known as the doctrine of re-designation, is a doctrine that can be used to avoid the application of rules or legal systems that should apply (lex causae) that have been determined based on normal international civil law procedures and change references to another rule or legal system, such as for example the rules of internal law lex fori or other legal systems other than the designated lex causae (p. 121).

Therefore, renvoi is used as a tool for judges to engineer the determination of the lex causae towards the legal system that is considered to provide the best decision. So it is certain that in the renvoi process, there are rules of international civil law/ private international law that are set aside.

The Process of Renvoi

According to Hilding Eek in his book The Swedish Conflict of Laws, the renvoi process itself is categorized into 2 types, namely remission and transmission (p. 181). Bayu Seto Hardjowahono then explains renvoi remission and transmission as follows (pp. 124 - 125):

1. Remission (rückverweisung, terugverwijzing)

The process of renvoi by foreign rules of international civil law goes back the way of the lex fori. In this process, the first appointment takes place from the forum of international civil law, towards the foreign international civil law, because it is previously known that the foreign international civil law in the second appointment will point back towards the lex fori.

2. Transmission (weiterverweisung, verderverwijzing)

The process of renvoi by a foreign international civil law towards another foreign legal system, where the first transmission takes place from the forum of international civil law towards a foreign international civil law, which was previously known to point towards a third legal system.

For example, the renvoi rule has been outlined in several regulations such as Number 20 of Rome Regulation I on the law applicable to contractual obligations which states:

Where the contract is manifestly more closely connected with a country other than that indicated an Article 4 (1) or (2), an escape clause should provide that the law of that other country is to apply. In order to determine that country, account should be taken, inter alia, of whether the contract in question has a very close relationship with another contract or contracts.

So, renvoi provides space for the court to determine which legal rules or systems are considered best for resolving an international civil law case.

However, Bayu Seto Hardjowahono emphasized that renvoi cannot be used in all types of international civil law cases and tends to be rejected because it contradicts the main principle in contract law, where parties have the freedom to determine the law that applies to the contract they entered into (pp. 135-136).

This is our answer, hopefully, you find it useful.

Legal Basis:

EC Regulation No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).

References:

1. Bayu Seto Hardjowahono. Dasar-Dasar Hukum Perdata Internasional Buku Kesatu Edisi Kelima. Bandung: PT Citra Aditya Bakti, 2013;
2. Hilding Eek. The Swedish Conflict of Laws. The Hague: Springer Netherlands, 1965.