Renvoi Theory and the Application of Foreign Law: Renvoi in General

Abstract

No question in the Conflict of Laws has given to the jurists of continental Europe greater difficulty during the last thirty years than the so-called renvoi theory. The following example may serve to suggest the problem. Suppose a citizen of the United States, formerly a resident of the State of New York, dies domiciled in Italy, leaving personal property in the State of New York, and that a question arises before the New York courts with respect to the distribution of such property The obvious answer is : The lex fori having adopted the rule that the law of the domicile of the deceased at the time of his death shall govern the distribution of his personal estate, Italian law is to be applied. But what is meant by Italian law? Is the New York judge to apply the Italian statute of distributions, or is he directed by the lex fori to apply Italian law in its totality, i. e., including its rules governing the Conflict of Laws? Should the lex fori refer to Italian law in the latter sense it would be found that in the Italian system of Private International Law the lex patrice has supplanted the lex domicilii in the present instance. If the question came before an Italian judge the personal estate would be distributed in accordance with the law of the country of which the deceased was a citizen or subject at the time of his death, that is, New York law.