Some Reflections on the Theory of Renvoi, As Found in Writings, Case Law, Legislation and International Conventions

Mekali, Lahouari (1991) Some Reflections on the Theory of Renvoi, As Found in Writings, Case Law, Legislation and International Conventions. LL.M(R) thesis, University of Glasgow.

Abstract

Although renvoi has been discussed over a long period its difficulty makes such reflection not only interesting but also necessary. In fact, this discussion leads to clarify a doubt on whether renvoi is really an inevitability of private international law or represents only a process that can be solved and eliminated from this discipline, i.e., whether it is a necessary process or only a temporary device. Moreover, renvoi is a difficult problem in the field of private international law which has divided scholars, jurisprudence, legal systems and International Conventions. For this and other reasons the present writer would like to show the difficulties that have been found not only by judges but also by scholars and students. Further, if universal solution to the problem of renvoi is the aim intended by theorists and International Institutions, it will be useful to tackle the renvoi analysis both theoretically and practically and discuss its mechanism in both legislation and International Conventions. On this basis the writer has tried to analyse the renvoi issue by dividing this work into four chapters. The first chapter, which is an introductory chapter, tries to show the importance of the history of private international law in order to understand the renvoi phenomenon. In truth, the reason for which renvoi is discussed from historical point of view is that it represents an issue which is related to its history and cannot, according to the writer, be understood without it. Further, as renvoi represents a controversial problem its mechanism should not be isolated from other issues, such as, the problem of characterization. As a matter of fact the correlation between the two problems is strong and clear in that the latter represents one of the causes for the emergence of renvoi. Additionally, to understand the evolution of the renvoi pheneomenon the discussion, in this chapter, does not start from the famous cases, such as the Affair Forgo and Re Annesley but will rather refer to its roots before the nineteenth Century. In the second chapter, both the causes and forms of renvoi are taken into consideration with a special emphasis upon the former. Concerning the causes of renvoi this treatment is based upon the renvoi problem seen through the divergence between the two connecting factors, i.e., domicile and nationality. It means that if the problem of domicile contra nationality remains the fundamental issue, such treatment will prove and show whether renvoi is useful to reconcile those two principles. Further, this chapter includes both the dogmatic and pragmatic conceptions that have been expressed on the renvoi issue and tries to evaluate to what extent those justifications are correct. The discussion also intends to show whether renvoi can be used as a useful device or ruse and finds out if it is a principle of a general application or only an exception. The writer uses in this discussion both diagrams and sarcasm techniques. Concerning the latter this is a means by way of metaphor to understand the renvoi whether you call it by its name, surname or nickname. The discussion of different points through the method of diagrams also intends to clarify the renvoi theory as much as possible and makes it easier for the reader to comprehend its process. The third chapter concerns the application of the process of renvoi in legal systems and the position of International Conventions in this matter. Concerning the former the renvoi issue has been analized with regard to the two different legal systems, i.e., renvoi in Common law countries and Civil law countries. In fact, the work deals with legal systems which accept the doctrine of renvoi, such as, France and Great Britain. It also refers to those legal systems which do not adopt its process, such as Algeria, and those who reject it expressly. Further, this chapter is a contribution which intends to clarify the limitations of renvoi and tries to locate the areas where its working has been excluded. With regard to International Conventions, these have also taken different positions towards the mechanism of renvoi in that there are those which accept its mechanism whereas others reject it. In fact, this is the case with both bilateral and multilateral Conventions starting from Geneva Conventions via the Hague Conventions to Rome Conventions. The last chapter is a general conclusion about the mechanism of renvoi and its future in the field of private international law with some suggestions by the writer on the subject.

• Item Type: Thesis (LL.M(R))
• Qualification Level: Masters
• Keywords: Law
• Date of Award: 1991
• Depositing User: Enlighten Team
• Unique ID: glathesis:1991-77273
• Copyright: Copyright of this thesis is held by the author.
• Date Deposited: 14 Jan 2020 09:13
• Last Modified: 14 Jan 2020 09:13
• URI: https://theses.gla.ac.uk/id/eprint/77273