Developments in the private international law doctrine of renvoi since 1990

Abstract

The theory of choice of law has received close attention in Australia since 1990. In 2000, the High Court of Australia chose the law of the place of the tort, without flexible exceptions, as Australia's new choice of law rule for intra-national torts. In 2002, it extended the rule to transnational torts litigated in Australia. Since 2002, problems inherent in the inflexible nature of the Australian choice of law rule have emerged. This prompted Australian courts to concede that, in the interests of justice and fairness, judicial discretion on choice of law may sometimes be appropriate. It is in this context that Australian courts have controversially revived debate on the doctrine of renvoi in the common law. Renvoi arises as an adjunct to choice of law. Australia's response to renvoi has provoked active debate among conflicts scholars internationally, because it applies renvoi to a tort case. Some of the debate has praised the Australian use of renvoi for its creativity, in other respects it has been critical of the High Court's unprincipled expansion of the doctrine contrary, firstly, to the traditional presumption against renvoi's application, and secondly, to the doctrine's contraction in other jurisdictions. The High Court of Australia in Neilson v Overseas Projects Corporation of Victoria Ltd accepted that the scope of the renvoi was as a theory of potentially more general application in the conflict of laws. This thesis is driven by a need to examine the doctrine of renvoi as it has arisen in Australia's highest court, in light of the historical writings by Albrecht Mendelssohn-Bartholdy and Jean Georges Sauveplanne, and to identify some guiding principles to assist courts and private lawyers in future cases that will inevitably be decided in this area. The first part of this thesis will examine the theory of renvoi and the various forms of renvoi, trace the evolution of the doctrine and the extent to which the renvoi has been applied in selected law areas, and canvass some of the arguments why renvoi should and should not be accepted as constituting a general theory of the conflict of laws. The second part of this thesis will develop and defend a principled basis for the rejection of renvoi as a theory applicable to tort by reference to the leading decision of Neilson v Overseas Projects Corporation of Victoria Ltd. With a focus on the practical example of the Neilson application of renvoi to a civil claim in tort, this thesis will demonstrate that although the application of renvoi may produce the 'correct' result, the outcome is one of judicial pragmatism rather than any principled basis for renvoi's application in civil cases. Instead of promoting uniformity and predictability for parties to a dispute, the obligation that a renvoi imposes on private lawyers and the courts to consider and apply the foreign choice of law rules - in addition to foreign rules governing the determination of substantive delictual liability, limitations and assessment of damages - introduces greater complexity and uncertainty in the resolution of transnational cases. When courts are asked to interpret and apply both foreign rules of private international law and the foreign law of tort, renvoi further fails to support the conflict of laws goal of uniformity. The doctrine introduces a further element of the foreign law that may be misinterpreted and misapplied by the forum. The instability of renvoi in the Australian context is heightened by the legal fiction of the presumption of identity that continues to be applied by forum courts whenever there is a gap in the pleading or proof of foreign law, as well as the adoption of a lex loci delicti commissi rule at common law without flexible exceptions: for intra-national tort in John Pfeiffer Ply Ltd v Rogerson, and for international tort in Regie National des Usines Renault SA. v Zhang. This thesis examines each of these issues in the context of the recent decision of the Full Court of the High Court of Australia in Neilson v Overseas Projects Corporation of Victoria Ltd. Neilson is the first decision of an ultimate common law court in which renvoi has been applied, as if it were a general theory of the conflict of laws, to decide an international tort claim. It also applies a new function to renvoi, that of an exception to a tort choice of law rule that the same court declared ought to contain no flexible exception. This thesis critically evaluates the decision of the High Court of Australia to adopt a choice of law rule without flexible exceptions, then to elevate the doctrine of renvoi to the status of a flexible exception by stealth. Through characterising the lex loci delicti commissi as all of the laws of the foreign law area, and picking up the choice of law rules of the place of the tort, the High Court was able to remit the substance of the dispute to the lex fori to determine liability and damages. In the context of the Neilson case, this thesis explores the development of the renvoi doctrine and the primarily legislative responses to it across some common law and civil jurisdictions since 1990, when Professor Jean Georges Sauveplanne published his chapter on Renvoi in Volume III of 'Private International Law'. It identifies the principal jurisdictions that have considered the operation of renvoi, and what might lie on the horizon for the renvoi as a general theory of the common law rules of choice of law in Australia, post-Neilson.