Renvoi arises from uncertainty in the meaning of “the law” of the foreign jurisdiction which may be deemed applicable by the choice of law rules of the lex fori. There are three modes of considering this issue (see Dicey and Morris, 9th ed., pp. 52-54):
(i) No renvoi - reference to the law of the foreign jurisdiction is taken to be only the substantive domestic law of that system. It is taken not to include any of the conflict rules of that jurisdiction.
(ii) Partial renvoi - reference to the law of the foreign jurisdiction is taken to include not only its sustantive domestic law but also the choice of law rules of that system.
(iii) Total renvoi - The forum court chooses which system of law to apply based on its own choice of law rules. It must then decide the case exactly as if it were the court of the jurisdiction chosen.
Tezcan v. Tezcan |
1992 CarswellBC 1 (B.C. C.A.) at para. 98, 99, 100, 101 |
If a local rule (such as s. 22 of the Matrimonial Property Act of Nova Scotia) [S.N.S. 1980, c. 9] imports foreign rules and they, in turn, invoke the law of a third jurisdiction, the reference to the law of the third jurisdiction is called renvoi or remission. In some Canadian statutes such a further reference is precluded by a stipulation that it is only the “internal” foreign law that is to be applied. Section 22 of the Nova Scotia Act, however, does not specify that it is the “internal” law of the place of last common habitual residence that is to govern a division of matrimonial assets. The possibility of renvoi is thus left open and it can be argued that s. 22 imports both the internal and external law of West Germany, including, in this case, the provisions of Iranian law that a West German court would adopt as applicable to Mr. and Mrs. Vladi as Iranian nationals in accordance with an existing German/Iranian treaty, and on general principles recognized under West German law.
Vladi v. Vladi |
1987 CarswellNS 72 (N.S. T.D.) at para. 12 |