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ROBERT YEZERSKI*
Abstract
This article considers the scope of the doctrine of renvoi in private international law, and specifically, whether it has any operation in the field of tort. It has generally been assumed that the common law ‘rejects’ renvoi in tort and that where the forum’s choice of law rules require the application of foreign law, only the foreign legal system’s ‘internal’ laws are applied, absent any consideration of the foreign choice of law rules. However, it is argued that the merits of rejecting renvoi in tort can only be assessed by reference to the relevant choice of law rule. For this reason, and in light of the High Court’s recent adoption of the lex loci delicti rule for international torts in Zhang, it is submitted that renvoi should be given operation in tort because it is consistent with the policies underlying the acceptance of that choice of law rule. The analysis of this question proceeds upon a consideration of the recent decision of the Full Court of the Supreme Court of Western Australia in Mercantile Mutual Insurance (Australia) Ltd v Neilson in which the Court adhered to the traditional view that renvoi is rejected in tort.
* BA(Hons) LLB(Hons) (University of Sydney). The author wishes to thank Ross Anderson for his valuable comments on the draft of this paper. Thanks also to Ben Doyle, James Emmett & Sarah Knuckey. All opinions, and any errors, remain my own.
Since the High Court’s decision in Regie Nationale des Renault Usines SA v Zhang (Zhang),[1] the Australian common law has provided a single choice of law rule for international torts. In that case, the High Court extended the choice of law rule for intranational torts from John Pfeiffer Pty Ltd v Rogerson (‘Pfeiffer’) [2] by establishing that the lex loci delicti is the applicable system of law for all foreign tort claims. What Zhang left unresolved, however, was the question of what is meant by the ‘lex loci delicti’ — is it simply the domestic or ‘internal’ law of a foreign country, or does that phrase incorporate that country’s choice of law rules as well?[3] Those rules might conflict with choice of law rules of the forum by requiring the application of either the lex fori (remission) or the laws of a third state (transmission).[4] This is the problem of renvoi, which arises where there is a conflict between conflicts of law rules, thereby creating the potential for a perpetual series of references from one system of law to another.
This was precisely the problem that was faced by the Full Court of the Supreme Court of Western Australia (McLure and Johnson JJ, and Wallwork AJ) in Mercantile Mutual Insurance (Australia) Ltd v Neilson (‘Neilson’).[5] That case was an appeal from the judgment of McKechnie J at first instance.[6] The genesis of the litigation was an action in negligence commenced by an Australian national and Western Australian resident, Mrs Barbara Neilson, against a corporation incorporated in, and owned by, the state of Victoria, Overseas Projects Corporation of Victoria Ltd (OPC). Mrs Neilson alleged that she had suffered tortious injury while living in China as a result of the negligent omission of OPC. The lex loci delicti was the law of China; however Chinese law included a provision allowing a claim for damages between two foreign nationals of common nationality to be resolved according to the law of that nationality. In other words, although Zhang required that Chinese law be applied (the lex loci delicti), the lex loci delicti here arguably required, or at least permitted, the application of Australian law.
The facts in Neilson were straightforward. The plaintiff, Mrs Neilson, accompanied her husband to China in 1991 when he went to teach at Wuhan Iron and Steel University in the city of Wuhan, in Hubei Province, central China. Her husband, Mr George Neilson, was employed by OPC.[7]
Under Mr Neilson’s employment contract, the Neilsons were to move to China for a period of up to two years.[8] The contract expressly provided that Mrs Neilson would accompany her husband to Wuhan and that OPC would supply the couple with an apartment to live in while in China.[9] Mrs Neilson was also employed by OPC. However, her employment was not pursuant to a written contract and did not include any terms relating to accommodation.[10]
In October 1991, while in Wuhan, Mrs Neilson woke in the middle of the night and tried to make her way to the downstairs section of the apartment.[11] While attempting to feel her way in the dark, Mrs Neilson fell down the stairs, suffering head and back injuries.[12] At the date of the trial, she suffered ongoing back and neck pain, as well as headaches, tinnitus and vertigo.[13]
Mrs Neilson commenced proceedings against OPC in the Supreme Court of Western Australia claiming damages in tort and contract on the basis that her injuries resulted from OPC’s failure to provide safe accommodation. The claim in contract was dismissed on the basis that her contract with OPC did not contain any promise to provide her with accommodation in Wuhan and because she was not entitled to sue under her husband’s contract because of considerations of privity.[14] For present purposes, only the action in tort is relevant.
In relation to the tort grounds, Mrs Neilson alleged that the failure of OPC to install a balustrade alongside the stairs in the apartment was the direct cause of her injuries. The evidence established that the Neilsons had complained to OPC’s representatives about the lack of a balustrade several times prior to the accident and that OPC had taken no steps to rectify the problem.
At trial, McKechnie J applied Distillers Co (Biochemicals) Ltd v Thompson[15] and Voth v Manildra Flour Mills Pty Ltd [16] and concluded that the locus delicti was China.[17] His Honour held that he was therefore bound to apply Chinese law following the lex loci delicti rule adopted in Zhang.[18]
Turning to the expert evidence on Chinese law, McKechnie J found that the applicable Chinese legislation was the General Principles of Civil Law of the People’s Republic of China (hereinafter ‘the General Principles’), adopted at the Fourth Conference of the Third National People’s Congress on 12 April 1986.[19] Article 146 of the General Principles provides:
With regard to compensation for damages resulting from an infringement of rights, the law of the place in which the infringement occurred shall be applied. If both parties are nationals of the same country or domiciled in the same country, the law of their own country or of their place of domicile may also be applied ...[20] (emphasis added)
The expert evidence before the Court was that Article 146 was not relevant to the proceedings because it was a conflict of laws provision.[21] However, the expert was unable to clearly explain why this would mandate its non-application in the present proceedings.[22] McKechnie J therefore held that in order to ‘do justice and fairness’, his Honour would apply the Article.[23] The effect was that McKechnie J resolved the dispute according to Australian tort law principles and eventually held OPC liable in negligence for Mrs Neilson’s injuries.
McKechnie J’s decision to apply Article 146 proceeded on the assumption that the provision was part of the lex loci delicti — the system of law that he was bound to apply following Zhang. In one sense, this assumption is obviously correct: Article 146 is a provision of Chinese law and Chinese law was the lex loci delicti. However, a reference to the law of a foreign country is usually interpreted more narrowly to mean the law which a court of that country would apply in a case involving no foreign element.[24] In other words, a reference to the law of a foreign country is often treated as referring only to that country’s substantive or ‘internal’ laws, excluding its choice of law rules.[25] This is because of the problem of renvoi, which arises where there is a conflict of choice of law rules between the law of the forum and the foreign system of law to which the forum court is referred.[26] Were we to apply the foreign state’s choice of law rules, those rules may require the application of Australian law, at which point Australia’s own choice of law rules would once more require the application of foreign law. Thus, taking the Neilson case as an example, Australian law requires the application of the lex loci delicti, but Chinese law requires (or at least permits) that the law of the nationality be applied. The cycle does not stop there, however, because if the ‘law of the nationality’ incorporates Australian choice of law rules, we are once again sent back to Chinese law and the cycle continues ad infinitum. McKechnie J did not advert to this problem in Neilson, choosing instead to take comfort in the generous homeward gesturing of Chinese law, without recognising that, upon returning to Australian law, his Honour would arguably be sent straight back to the law of China.
Before moving further, it is convenient to say something about the problem involved in using the phrase ‘Australian law’ in the field of tort. In the trial decision, McKechnie J stated:
I propose to apply Article 146. It gives me a right to choose to apply the law of Australia because both parties are nationals of Australia.
The phrase ‘the law of Australia’ requires some further explanation as it applies in relation to tort. While Australia has a single common law, the operation of statute has the effect that the law of tort is governed by a different regime in each state and territory.[27] Cases such as Breavington v Godleman,[28] Anderson v Eric Anderson Radio and TV Pty Ltd [29] and Pfeiffer v Rogerson [30] all stand as evidence of the significant differences that exist between Australian jurisdictions in matters of tort. The extent of these differences has increased more recently with several states passing tort reform legislation.[31] No system of law can therefore answer the description ‘the law of Australia’ in relation to tort. As such, there is an incongruence between the law to which Article 146 refers (‘the law of the nationality’) and the law which governs the relevant subject matter (tort) in Australia. Article 146 therefore appears to refer the question to a system of law that can offer no answer.
Chinese law is apparently not without a solution to this problem. According to the American scholar Mo Zhang, Chinese law provides that where there is no unitary national law relating to a particular subject matter in the foreign country:
[T]he applicable law shall be determined according to the conflict of law rules of the country. If the foreign country has no such rules, the law of the place that has the closest relationship with the civil relations involved shall be applied directly.[32]
In the field of succession, the common law has solved similar problems by adopting whatever solution the relevant foreign legal system would apply when the national law to which it is referred lacks a unitary system of law with respect to that subject matter.[33] Thus, consistent with the common law approach and the Chinese rule described by Mo Zhang, it would seem that the applicable law in Nielsen was that with which the ‘civil relations involved’ had the ‘closest relationship’. It can therefore be assumed that the applicable law was properly identified as either the law of Western Australia or the law of Victoria. Neither body of law can be described as ‘the law of Australia’ either in general terms or as it applies to the field of tort.
Appeal proceedings were commenced in the Full Court of Western Australia. The appellant, Mercantile Mutual Insurance (Australia) Ltd (herinafter ‘Mercantile’), was OPC’s third party liability insurer. There were three named respondents to the appeal being Mr and Mrs Neilson, OPC and OPC’s insurance broker.
Mercantile pressed three grounds of appeal. First, it argued that the doctrine of renvoi does not apply in tort and that McKechnie J therefore erred in applying Article 146. Secondly, it contended that Mrs Neilson’s claim was statute-barred by operation of a Chinese limitation law. Finally, it sought to establish that Mrs Neilson’s injuries arose out of her course of employment with OPC (the result of which would have been that Mercantile was not liable to indemnify OPC in respect of Mrs Neilson’s injuries).[34] The Full Court allowed the appeal on the first two grounds, while dismissing the third ground. For present purposes, only the reasoning in relation to the first ground is relevant.
McLure J, with whom Johnson J and Wallwork AJ agreed,[35] commenced her consideration of the renvoi issue by providing an overview of the three possible solutions that a legal system can adopt when faced with a renvoi problem: ‘rejecting’ the renvoi (‘the internal law solution’), the ‘single renvoi solution’ and the ‘double renvoi’ solution.[36]
The first of these solutions, rejecting the renvoi, is the most straightforward approach. This solution simply requires a court to ignore (or reject) the operation of the foreign legal system’s choice of law rules and instead apply the ‘internal’ or substantive law of that foreign state.[37] This is the approach which the common law probably adopts in matters of contract, largely because it is believed that party expectations will be defeated if the substantive law of the proper law of the contract is not applied.[38] In the context of Neilson, the internal law solution would require an Australian court to disregard the operation of Article 146 and instead apply only the substantive provisions of the General Principles.
The second solution, and the one which seems to have been adopted by McKechnie J at first instance,[39] is the ‘single renvoi’ approach (also known as ‘accepting the renvoi’).[40] This is the approach adopted by most civil law systems.[41] The single renvoi solution requires that, when faced with a renvoi problem, a court will only follow the first reference back and then apply the internal law of the country to which that first reference refers. The operation of the single renvoi approach is aptly demonstrated by McKechnie J’s approach at first instance in Neilson. The rule from Zhang referred the Court to Chinese law; however, Article 146 of the General Principles referred the matter back to Australian law. Rather than following Zhang back to Chinese law once more (thereby initiating a seemingly perpetual cycle of references between legal systems), McKechnie J simply ‘accepted’ the reference back from Chinese law and applied the ‘internal law’ of Australia.[42]
The third solution, and the one more commonly adopted in Australian law, is the so called ‘double renvoi’ approach or ‘foreign court theory’. This approach has been applied by common law courts in relation to the formal[43] and intrinsic[44] validity of wills, the intestate succession to moveable property[45] and the recognition of foreign legitimations by subsequent marriage.[46] It may also have application in relation to questions concerning the formal validity of a marriage and the capacity of individuals to marry.[47] The double renvoi approach requires a forum court to place itself in the position of the foreign court by adopting whatever renvoi solution the foreign court would apply when faced with the renvoi problem.[48] In other words, the double renvoi solution requires the forum court to resolve the renvoi difficulty in the same manner as the courts of the relevant foreign legal system would. For example, if McKechnie J had applied the foreign court theory in Neilson, his Honour would have investigated what a Chinese court would do when, in applying Australian law under Article 146, it came across the rule from Zhang requiring the application of Chinese law.
Of these three possible solutions to the renvoi problem, the Full Court determined that Australian law adopts the internal law solution in the field of tort. This rejection of renvoi proceeded in two steps: first, McLure J surveyed the precedent and commentary relating to the issue of renvoi and held that the internal law solution was the only approach supported by the authorities.[49] In support of this conclusion, McLure J[50] cited the Scottish case of M’Elroy v M’Allister,[51] and two United States cases, Haumschild v Continental Casualty Co[52] and Pfau v Trent Aluminium Co.[53] Her Honour further noted that the United Kingdom Parliament has recently legislated to the same effect [54] and that the bulk of academic literature also supported the rejection of renvoi in its application to tort.[55] McLure J summarised the state of the authorities as follows:
[T]here is no binding (or any other) authority that renvoi is applicable in torts cases; there is non-binding authority to the contrary; there is widespread academic opinion that renvoi is not applicable to tort; finally, there is much academic criticism of the renvoi doctrine in general.[56]
The Full Court thus concluded that, in light of the authorities, the only supportable solution to renvoi in tort was to reject the doctrine entirely.
The second step in the Full Court’s rejection of renvoi was to analyse whether the operation of renvoi was incompatible with the reasoning of the High Court in Zhang and Pfeiffer. To support this contention, McLure J set out the three principal reasons for the High Court’s adoption of the lex loci delicti rule in Pfeiffer:
(a) subject to the possible difficulty in locating the tort, liability is fixed by reference to geography and is certain;
(b) the lex loci delicti recognises and gives effect to the predominate concern of local legislatures with acts, matters and things within its territory;
(c) so far as the subject matter permits, the lex loci delicti gives effect to the reasonable expectation of parties.[57]
Taken together, and in light of the High Court’s rejection of any ‘flexible exception’ to the lex loci delicti rule, McLure J concluded that these three considerations suggest that Pfeiffer requires that the lex loci delicti be used to determine the substantive rights of the parties:
The implication in the reasoning of the majority in Pfeiffer, particularly in their reasoning relating to certainty and territoriality, is that the Australian choice of law rule identifies or defines the law applicable to determine substantive rights (the lex causae) not the jurisdiction (or law area) which is to determine the relevant applicable law.[58]
In other words, the Full Court concluded that the reasoning in Pfeiffer suggests that the lex loci delicti rule is a rule for identifying the system of the law that will substantively determine the rights and liabilities of the parties, not merely a choice of law device that could lead to the application of some other system of law.
This conclusion was also said to be supported by the reasoning in Zhang. According to the Full Court, the High Court’s overriding concern in Zhang was to ensure that the chosen choice of law rule would produce ‘certainty and predictability’.
[T]he requirement for certainty and predictability is not limited to avoiding or minimising forum shopping. It is also aimed at avoiding uncertainty as to the law to be applied in resolving the dispute. It is the need for certainty as to the lex causae that resulted in the High Court refusing to countenance a flexible exception to the universal rule of the lex loci delicti notwithstanding it recognised that there may be situations in which the lex loci delicti would not be in accordance with the reasonable expectation of the parties.[59]
In the opinion of the Full Court, the raison d’etre of Zhang (and Pfeiffer) was to ensure that Australia’s choice of law rules were predictable and certain. As the passage quoted above makes clear, ensuring ‘certainty and predictability’ was seen to be a stand-alone objective supporting the lex loci delicti rule; it had intrinsic value, independent of considerations of forum shopping and party expectations. The promotion of ‘certainty and predictability’ was therefore seen to be an end in itself.
Applying this reading of Zhang, the Full Court reasoned that the application of renvoi in tort was inconsistent with the lex loci delicti rule. The Court concluded:[60]
The application of the double renvoi doctrine to international torts would not promote certainty and predictability. It would require identification of Australia’s choice of law rules, the foreign country’s choice of law rules and its attitude to renvoi, from which a conclusion can then be reached as to the domestic law of which country applies. This exercise has the potential to be an “extraordinar[il]y complex, unwieldy, phantasmagorical journey to make”. [61]
Renvoi was thus said to be incompatible with the central policy concern expressed in Pfeiffer and Zhang. For this reason, the Full Court allowed the appeal on the renvoi ground and endorsed the internal law solution to renvoi in tort cases.
As noted above, the Full Court’s decision to reject renvoi in tort was supported by a seemingly overwhelming body of precedent in other jurisdictions and the authority of most academic commentators. Nevertheless, it is respectfully submitted that Full Court’s treatment of the existing authorities was subject to three significant flaws.
First, the Full Court went too far in concluding that there is ‘no binding (or other authority) that renvoi is applicable in torts cases’.[62] In fact, the little Australian case law that exists on the subject suggests that renvoi may have application in tort cases, at least in respect of intranational torts. In Breavington v Godleman (‘Breavington’),[63] Mason CJ, Wilson, Deane and Gaudron JJ all appeared to endorse the application of the lex loci delicti in intranational torts cases, although they differed in the terms they used to express the applicable law.[64] Breavington involved a claim for damages in negligence arising out of a motor vehicle accident in the Northern Territory. The action was commenced in the Supreme Court of Victoria and the issue was which system of law governed the claim. While Mason CJ simply endorsed the application of the ‘lex loci delicti’, Toohey J described the applicable law as ‘the law that would have been applied had the appellant’s claim been brought in the Supreme Court of the Northern Territory.’[65] Deane J adopted a similar formulation.[66] Wilson and Gaudron JJ described the applicable law as ‘the substantive law that would be applied if the matter were adjudicated in a court exercising the judicial power of the State in which the events occurred.’[67] These statements suggest that Wilson, Gaudron, Deane and Toohey JJ endorsed an approach akin to the double renvoi solution whereby the court was required to place itself in the shoes of a foreign court and apply the system of law that the foreign court would apply. Presumably, this would involve a consideration of the foreign law’s choice of law rules as the foreign court would almost certainly decide the case according to those rules. While it would be going too far to suggest that the judgments in Breavington involved any actual endorsement of the application of renvoi in tort, it is nevertheless clear that a majority of the Court approved of an approach that would presumably involve its application.
Secondly, the Full Court failed to recognise the simplistic and flawed reasoning upon which much of the existing case law rejecting renvoi in tort is based. The rejection of the doctrine of renvoi in tort in English law is thought to stem from the judgment of Lord Russell in M’Elroy v M’Allister[68] in which his Lordship casually observed:
[I]n referring to the lex loci delicti to ascertain by what rules the rights and liabilities of the parties to the action are regulated this Court refers to the internal domestic laws of that locus and not its private international law.[69]
This was a curious dictum to add in a case in which no renvoi issue actually arose. The statement is explained, however, by the next step in Lord Russell’s reasoning. Relying on the principle stated in the passage quoted above, his Honour went on to hold that, as he was not bound to apply the foreign legal system’s rules of private international law (in this case English law), he was not required to apply English precedent relating to the characterisation of a limitation law as either procedural or substantive.[70] While this conclusion is certainly correct, the reasoning on which it relies is flawed. As more recent cases have made clear, Lord Russell was not required to apply English precedent on the characterisation question because all such questions of characterisation are to be determined according to the lex fori.[71] In other words, Lord Russell did not need to say anything about renvoi to reach the conclusion he did on characterisation. In this context, it is difficult to see why Lord Russell’s confused dictum has been elevated to the status of high principle by textbook authors.
Similarly baseless reasoning is evident in some of the authority from the United States. In Haumschild v Continental Casualty Co,[72] Currie J reasoned that renvoi must be rejected in tort because ‘it is likely to result in the court pursuing a course equivalent to a never ending cycle’.[73] This reasoning is hardly convincing; renvoi is no more likely to produce a ‘never ending cycle’ in the law of tort than it is in the law of succession, yet it is rejected in the former context but embraced in the latter. Clearly, if a distinction is to be drawn between the application of renvoi in the law of succession and its treatment in tort, that distinction must be supported by some rational policy. Cases like Haumschild and M’Elroy demonstrate that the rejection of renvoi in tort has largely crept into the law on an unprincipled basis, having its genesis in the unreasoned dicta of judges, and finding general and unquestioning acceptance by commentators.
Thirdly, the Full Court did not come to terms with the fact that the utility of the doctrine of renvoi in tort will ultimately depend on the nature of the relevant choice of law rule, and foreign precedent rejecting renvoi will only be relevant to the extent that the relevant foreign legal systems adopt the same choice of law principles. For example, where the relevant choice of law rule requires a proper law of the tort approach, it would make little sense to apply renvoi because that may defeat the policy implicit in the rule that a foreign tort claim should be determined according to the system of law with which it has the most significant relationship.[74] Thus, in the United States case of Pfau v Trent Aluminum Company,[75] Proctor J rejected the application of renvoi in tort because, ‘[t]o do so would frustrate the very goals of the governmental interest analysis.’[76] There, the purpose of the forum’s choice of law rule, the governmental interest analysis, was to ensure that the law of the state with the most significant interest in the case governed the claim.[77] As such, the application of renvoi would defeat the policy underlying this choice of law rule because it would potentially produce arbitrary results by referring the court to the substantive law of a less interested state.[78] Significantly, this same reasoning cannot be applied where a state uses a simple lex loci delicti rule, because the locus delicti might itself be a disinterested state.[79] In fact, in a jurisdiction that uses a lex loci delicti approach, embracing renvoi may actually be a means of promoting the policy outcomes which the governmental interest analysis seeks to protect by rejecting renvoi.[80] This reflects Otto Kahn-Freund’s observation that there is a stronger basis for rejecting renvoi in tort where a state has adopted a ‘proper law of the tort’ approach to choice of law, than there is in the context of a lex loci delicti rule.[81] Thus, much of the foreign precedent rejecting renvoi is simply inapposite in the context of Australian choice of law rules.
For this reason it was, with respect, entirely appropriate for the Full Court to consider whether the application of the doctrine of renvoi would promote or hinder the policy considerations that the High Court relied upon in Zhang and Pfeiffer in formulating the lex loci delicti rule. That said, in identifying the various policy bases upon which the decision in Zhang relied, the Full Court seemed to concentrate exclusively on the High Court’s concerns for certainty and predictability, ignoring the other considerations which informed its decision. When these other policy concerns are considered, it is clear that the application of renvoi (through the double renvoi solution) will usually be consistent with, and complementary to, the adoption of the lex loci delicti rule in Zhang.
One of the principal reasons for adopting the lex loci delicti rule in Zhang was the High Court’s view that the rule was an expression of comity towards other states and gave due recognition to the competency of foreign countries to regulate activities within their own territory. The joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ emphasised the merits of this approach by quoting La Forest J in the Canadian case of Tolofson v Jensen:[82]
The underlying postulate of public international law is that generally each state has jurisdiction to make and apply law within its territorial limit. Absent a breach of some overriding norm, other states as a matter of “comity” will ordinarily respect such actions and are hesitant to interfere with what another state chooses to do within those limits.[83]
In a separate judgment, Kirby J likewise argued that the lex loci delicti rule was necessary to respect the competence of states to control and regulate wrongs within their borders:
The law of tort, although now chiefly compensatory in purpose, has additional objectives of establishing standards of reasonable civic conduct, promoting prevention of wrongs and distributing costs amongst the community concerned. A choice of law rule that permits a plaintiff to pick and choose, according to the forum it selects, the law that would be applied, would derogate from the effective control of a given law area over those aspects of its law.[84]
In light of these statements, it is clear that one of the High Court’s reasons for adopting the lex loci delicti approach in Zhang was that it maintains a fidelity to the law and policies of the foreign state.
Turning to the issue of renvoi, it is clear that giving effect to the choice of law rules of a foreign state is consistent with this policy. If the reason for applying the lex loci delicti is a sense of comity towards foreign countries and recognition of their competence to regulate affairs within their own territory, why would we ignore a foreign state’s decision to have a legal controversy decided by the laws of some other country?[85] This is certainly no less a regulatory decision than would be a decision to determine the matter according to the state’s own laws.
Indeed, a state may have legitimate reasons for resolving such disputes by reference to foreign law. For example, foreigners who have sustained tortious injury in China have often been paid compensatory damages well above those available under the Chinese law of civil liability because the Chinese Government is concerned that paying compensation at local rates would deter foreign investment and tourism.[86] In light of this policy, it would not be surprising if the Chinese government selected a choice of law rule that applied foreign law in tort cases involving foreigners, thereby ensuring that the law of civil liability does not discourage international trade. If an Australian court, in deciding a case like Neilson, were to ignore the Chinese choice of law rules, the effect would be to defeat this regulatory policy and compromise the ability of China to regulate the activities of foreigners within its territory. Thus, it follows from Zhang that renvoi should be applied in tort because the rejection of a foreign state’s choice of law rules may compromise the regulatory autonomy of that state over matters occurring within its territory.
Another reason for the High Court’s adoption of the lex loci delicti approach in Zhang was that it promised greater uniformity between jurisdictions. The joint judgment emphasised that applying the lex loci delicti provided a ‘forum neutral connecting factor’ and hence promised ‘more even handed justice to both parties’.[87] This reflected the Court’s observation in Pfeiffer that;
>From the perspective of the victim (the plaintiff) application of the lex loci delicti can be said to make compensation depend upon the accident of where the tort was committed, whereas, if the lex fori is applied, the plaintiff can resort to whatever forum will give the greatest compensation.[88]
This is the dreaded scourge of ‘forum shopping’, which arises as a result of the lack of uniformity of internal laws, choice of law rules and procedural rules between states. The effect of these differences is that the legal result in a given case may ultimately depend on the forum in which it is litigated.[89] It is generally thought that forum shopping is an anathema to the principles upon which the law of conflicts is based because ‘the purpose of a choice of laws doctrine is to assure that a case will be treated the same regardless of the fortuitous circumstances which often determine the forum.’[90] By adopting the lex loci delicti rule, the High Court believed that it was protecting against forum shopping by ensuring that a plaintiff who chooses to litigate a foreign tort claim in an Australian court, rather than in the state in which the wrong occurred, cannot thereby escape the application of the laws of that state.
This assumption only holds if the forum court also applies the choice of law rules of the foreign state. This can be demonstrated by re-examining the facts in Neilson. At trial, McKechnie J found that Article 106 of the General Principles provided for civil liability where one person’s conduct results in harm to another.[91] In this way, the Chinese law provided a basis for liability that, with respect to Mrs Neilson’s case, was broadly similar to that which exists under the common law of negligence.[92] That said, there were significant differences between Chinese law and the Australian common law in relation to the availability of the various heads of damage. While Article 119 of the General Principles provided for the payment of compensation for medical expenses, loss of income and loss of earning capacity, no damages are payable under Article 119 (or any other provision of the General Principles) in respect to pain and suffering.[93] As damages for pain and suffering are available under the Australian common law, any compensation paid in accordance with Chinese law was likely to be significantly lower than that which would have been available had common law principles applied.[94]
This distinction between Chinese law and Australian law in relation to the available heads of damage becomes far more significant if Australian law rejects renvoi. Assume that Australian law adopts the internal solution to renvoi in tort such that the Supreme Court of Western Australia looks only to the internal law of China to resolve Mrs Neilson’s tort claim. Assume also, for ease of explanation, that Chinese law also rejects the renvoi. The result would be that, were she to litigate in Western Australia, Mrs Neilson would be entitled to medical expenses and compensation for loss of income, but could not recover damages for pain and suffering.[95] However, had Mrs Neilson litigated her claim in China, the Chinese court could apply Article 146 of the General Principles and resolve the matter according to the Australian common law. This would mean that Mrs Neilson could recover damages for pain and suffering. In this way, the choice of forum greatly affects Mrs Neilson’s entitlement to compensation. As Adrian Briggs notes, the application of renvoi provides a defence against this type of forum shopping because it ensures that a forum court decides a matter exactly as the foreign court would do.[96] If the Supreme Court of Western Australia had to decide Mrs Neilson’s claim by exactly the same principles that a Chinese court would adopt, the effect would be to substantially neutralise the effect of forum selection on the legal consequences of the case. In this context, the application of renvoi is critical to the policy of uniformity expressed by the High Court in Zhang and Pfeiffer.
That said, it is important not to overstate the extent to which applying a foreign state’s choice of law rules will promote uniformity and prevent forum shopping. Even if we were to adopt renvoi in tort, there remain several practical and legal obstacles to ensuring that foreign tort claims are resolved in a forum-neutral manner. As forum courts are bound to apply forum public policy and procedural law, total fidelity to the laws of the foreign country is simply not possible.[97] Renvoi is therefore clearly not a complete solution to the problem of forum shopping or the lack of international uniformity in relation to substantive law. Notwithstanding this qualification, renvoi is properly regarded as an important tool by which a court can achieve greater inter-jurisdictional uniformity and discourage forum shopping, thereby promoting one of the underlying policies of the decision in Zhang.
Moreover, the application of renvoi will contribute to the attainment of a third policy objective behind the lex loci delicti rule; that of meeting reasonable party expectations. In Zhang, Kirby J claimed that the lex loci delicti rule has ‘sure foundations in human psychology’[98] because a person will ‘ordinarily assume that he or she is governed by the law of the law area in which the event, critical to legal liability, happens.’[99] A similar view was expressed by the joint judgment in Pfeiffer.[100] As Kahn-Freund has explained, party expectations play a role in choice of law policy because potential tortfeasors should be able to calculate the extent to which their conduct exposes them to the risk of legal liability.[101] In Kahn-Freund’s words, ‘They should be able to feel safe in Rome if they do as the Romans do.’[102]
At first glance, this consideration may be thought to tell against the application of renvoi in tort because the operation of the doctrine may result in the application of some system of law other than the lex loci delicti. After all, how can party expectations be satisfied if, when in Rome, one does as the Romans do, only to have the law of Gaul apply? However, once it is appreciated that the concern with party expectations is ultimately for ensuring that potential tortfeasors can calculate their liability (and that potential tort victims can determine the extent of their legal protection), it is clear that the operation of renvoi is consistent with this objective because it will usually ensure that the full extent of a tortfeasor’s liability is referable to a single legal system. This point is aptly demonstrated from the facts in Neilson. Assuming that Australian law applies the double renvoi solution, OPC would be able to calculate the full extent of its liability according to the law of China as it would be applied by the Chinese courts. By contrast, were we to reject the renvoi, OPC would have to calculate its potential liability not simply according to Chinese law as it applies in China, but also in terms of Chinese law as it would be applied by Australian courts, and Chinese law as it might be applied in numerous other jurisdictions. This latter scenario would entail significant expense for Australian companies seeking to do business overseas as they would be forced to consider their exposure to tortious liability in numerous jurisdictions. Party expectations are thus better served by applying renvoi in tort as the doctrine can alleviate much of the uncertainty involved in multi-jurisdictional operations.
The foregoing analysis sheds some light on what the High Court meant in Zhang when it stressed the importance of ‘certainty’ in choice of law:
The selection of the lex loci delicti as the source of substantive law meets one of the objectives of any choice of law rule, the promotion of certainty in the law. Uncertainty as to the choice of the lex causae engenders doubt as to liability and impedes settlement.[103]
Certainty is valued because it promotes the rapid settlement of claims and removes difficult legal obstacles that impede the resolution of disputes. This is consistent with the other policy goals outlined above such as the minimisation of forum shopping and the satisfaction of party expectations. Thus, contrary to the interpretation of Zhang adopted by the Full Court, the High Court never suggested that certainty and predictability were ends in themselves. Their value arises from the fact that certainty and predictability facilitate international transactions by minimising the legal confusion that can arise from multi-jurisdictional liability.
In this context, the Full Court’s conclusion that the application of the doctrine of renvoi is destructive of certainty and predictability cannot be maintained. In Neilson, McLure J reasoned;
The High Court in Zhang has deliberately selected a rigid choice of law rule in tort to promote certainty and predictability. It would be inconsistent with the reasoning and result in Zhang to superimpose a renvoi doctrine the purpose and effect of which is to soften or avoid the rigidity of choice of law rules.[104]
This cannot, with respect, be correct. The High Court in Zhang endorsed an approach to choice of law that would minimise uncertainty as to liability and remove legal impediments to international transactions. Provided that the application of renvoi facilitates these objectives, the doctrine’s application will be consistent with the rule adopted in Pfeiffer and Zhang. In this context, questions of whether the rule is rigid or not are somewhat besides the point. The lex loci delicti rule is simply a mechanism for implementing a particular set of policies. Ultimately, renvoi should be applied if its application is consistent with those policies and rejected if it is not. The fact that the mechanism may be described as ‘rigid’ offers nothing. For example, the rigid rejection of renvoi will preserve discrepancies in the way in which the same cause of action is decided between jurisdictions; it will be productive of uncertainty as to liability and will thereby reduce the chance of settlement. By contrast, the application of renvoi in tort should minimise these differences thereby ensuring greater fidelity to the reasoning in Pfeiffer and Zhang. The fact that the former approach may be described as ‘rigid’, and the latter as ‘flexible’, can have no bearing on which approach is adopted. Only the latter is consistent with the policies which underlie Pfeiffer and Zhang and therefore only the latter should be applied.
One final comment needs to be made with respect to questions of certainty. As the Full Court noted, a degree of uncertainty is inherent in applying the double renvoi solution because some legal systems lack a clearly articulated attitude to renvoi. The difficulties involved in the double renvoi solution are aptly captured in the judgment of Wynn-Parry J in Re Duke of Wellington:[105]
[I]t would be difficult to imagine a harder task than that which faces me, namely, of expounding for the first time either in this country or in Spain the relevant law of Spain as it would be expounded by the Supreme Court of Spain, which up to the present time has made no pronouncement on the subject, and having to base that exposition on evidence which satisfies me that on this subject there exists a profound cleavage of legal opinion in Spain, and two conflicting decisions of courts of inferior jurisdiction.[106]
This reflects Elliot Cheatham’s observation that, ‘[I]t is difficult to ascertain and apply foreign local law; it is more difficult to ascertain and apply foreign conflict of laws rules; it is yet more difficult to ascertain and apply the foreign rule on the acceptance and rejection of renvoi.’[107] Given that such difficulties are inherent in the double renvoi solution, would not the application of renvoi in tort simply create the sort of uncertainty Zhang was intended to avoid? Regardless of the policy considerations that may support it, would not a rule that cannot be applied with certainty also undermine international transactions and disappoint party expectations?
While the logical force of this objection is unimpeachable, its premise, that a foreign country’s attitude to renvoi is near-impossible to prove, is increasingly without foundation. Over fifty years have passed since Wynn-Parry J had to contend with Spain’s silence on the renvoi question; nearly seventy-five years have passed since Maugham J famously observed that the application of renvoi was undesirable because it ultimately depends on the ‘doubtful and conflicting evidence of foreign experts’.[108] During this time, two significant developments have occurred; first, access to sources of foreign law have improved significantly, not least with the innovation of the internet and online legal materials. Secondly, and more significantly, this period has been marked by the adoption in many countries of specific and clearly formulated attitudes to renvoi.
The extent of this latter development was captured by J Georges Sauveplanne in his 1988 survey of renvoi laws around the world.[109] Sauveplanne’s survey reveals that countries as diverse as France, the Netherlands, Turkey, Brazil, Thailand, Japan and Egypt all have discernible attitudes to renvoi.[110] Even Spain and Italy, two countries that have troubled the common law courts in the past,[111] have now made clear their attitudes to the doctrine.[112] This process has also been assisted by the increased codification of private international law rules in states such as Austria and Portugal.[113] The upshot of these developments is that states are now both more aware of the renvoi difficulty and more vocal in relation to their attitude to its operation. Thus, whatever force the evidentiary uncertainty argument previously enjoyed, its ongoing rhetorical force is, if not yet spent, certainly in decline. It is not nearly as difficult as it once was to determine a foreign state’s attitude to renvoi; the effect of which is that it cannot be assumed that the application of the double renvoi solution will create any great uncertainty as to the applicable law.
Neilson in many ways represents the paradigm case in which renvoi should not be rejected in tort. First, the governing law of the locus delicti expressed a clear preference that cases involving foreign nationals be resolved according to law of the nationality. Secondly, the reasonable expectations of the parties may well have been that the operation of Article 146, together with their close contacts with Australia, would ensure that Australian law would govern any claim between them. Thirdly, the rejection of renvoi meant that the extent of the defendant’s liability differed depending upon the jurisdiction in which the action was litigated. Thus, by rejecting the renvoi, the Full Court defeated each of the significant policy considerations which the High Court relied upon in Zhang for adopting the lex loci delicti rule.
While it is clearly simpler and more convenient to reject the renvoi altogether, to do so is simply inconsistent with Australia’s choice of law rule in tort. The High Court’s concern for certainty and predictability in Pfeiffer and Zhang was not motivated by a desire to ensure that cases were easily dealt with, or evidentially simple; rather, the Court endorsed the lex loci delicti approach because the certainty it afforded would facilitate international transactions and remove impediments to settlement. The application of renvoi will not defeat these objectives, and will usually be consistent with them. For this reason there is no basis in policy or precedent for rejecting renvoi.
[1] [2002] HCA 10; (2002) 210 CLR 491.
[2] [2000] HCA 36; (2000) 203 CLR 503.
[3] Ross Anderson, ‘International Torts in the High Court of Australia’ (2002) 10 TLJ 132 at 138.
[4] P E Nygh & Martin Davies, Conflict of Laws in Australia (7th ed, 2002) at 290.
[5] [2004] WASCA 60 ( ‘Appeal decision’).
[6] Neilson v Overseas Projects Corporation of Victoria Ltd [2002] WASC 231 (hereinafter ‘Trial decision’).
[7] Trial decision at [1].
[8] Id at [18].
[9] Id at [14].
[10] Id at [20]–[21], [72]–[80].
[11] Id at [41].
[12] Ibid.
[13] Id at [47].
[14] Id at [72]–[94].
[16] [1990] HCA 55; (1990) 171 CLR 538.
[17] Trial decision at [122].
[18] Ibid.
[19] Id at [127]. It appears that McKechnie J may have erred in his citation of the General Principles of Civil Law of the People’s Republic of China. The General Principles were adopted by the Fourth Session of the Sixth National People’s Congress on 12 April 1986, as opposed to McKechnie J’s finding that that legislation was adopted by the Third National People’s Congress: Kui-Hua Wang and Danuta Mendleson, ‘An Overview of Liability and Compensation for Personal Injury in China Under the General Principles of Civil Law’ (1996) 4 TLJ 137 at 146.
[20] Trial decision at [200].
[21] Article 146 has generally been treated as a choice of law provision by commentators on Chinese law. See, for example, Huang Jin & Lü Guomin, ‘New Developments in Chinese Private International Law’ [1999] 1 Yearbook of Private International Law 135 at 147; Henry R Zheng, ‘Private International Law in the People’s Republic of China: Principles and Procedures’ (1987) 22 Texas International Law Journal 231 at 240.
[22] Trial decision at [202].
[23] Id at [203]–[204].
[24] Lawrence Collins (ed), Dicey and Morris on The Conflict of Laws (13th ed, 2000) (hereinafter ‘Dicey and Morris’) at 65.
[25] Ibid.
[26] See generally, id at 65–80; Nygh & Davies, above n4 at 289–302.
[27] Pfeiffer, above n2 at 514–515; Compare Re Benko [1968] SASR 243.
[28] [1988] HCA 40; (1988) 169 CLR 41.
[29] [1965] HCA 61; (1965) 114 CLR 20.
[30] Pfeiffer, above n2.
[31] See Civil Liability Act 2002 (NSW); Civil Liability Act 2003 (Qld); Civil Liability Act 2002 (WA); Civil Liability Act 2002 (Tas); Wrongs (liability and Damages for Personal Injury) Amendment Act 2002 (SA); Civil Law (Wrongs) Act 2002 (ACT); Personal Injuries (Liabilities and Damages) Act 2003 (NT).
[32] Mo Zhang, ‘International Civil Litigation in China: A Practical Analysis of the Chinese Judicial System’ (2002) 25 Boston College International and Comparative LR 59 at 77, fn 148.
[33] See Re O’Keefe (deceased) [1940] Ch 124; B D Inglis, ‘The Judicial Process in the Conflict of Laws’ (1958) 74 LQR 493 at 497–498; Nygh & Davies, above n4 at 299.
[34] It was for this reason that the third respondent, OPC’s insurance broker, had been joined as a party. In the event that Mercantile established that Mrs Neilson’s injuries were sustained in the course of her employment, OPC claimed against the third respondent: Appeal decision at [7].
[35] Id at [75], [76].
[36] Id at [29]–[32].
[37] Id at [29]; See also Sir Peter North & J J Fawcett, Cheshire and North’s Private International Law (13th ed, 1999) (hereinafter ‘Cheshire and North’) at 53; Nygh & Davies, above n4 at 290; Dicey and Morris, above n24 at 66.
[38] Amin Rasheed Shipping Corporation v Kuwait Insurance Co [1984] AC 50 at 61–62 (Lord Diplock); Nygh & Davies, above n4 at 296–297; See also Marielle Koppenol-Laforce, ‘Renvoi’ in Marielle Koppenol-Laforce, Daan Dokter, Gerard J Meijer & Frank G M Smeele, International Contracts: Aspects of Jurisdiction, Arbitration and Private International Law (1996) at 136–137.
[39] McLure J, writing in the Full Court, expressed some uncertainty as to whether McKechnie J’s approach was the ‘single renvoi’ solution or the ‘double renvoi’ solution (described below): Appeal decision at [32]. It could be argued that McKechnie J’s approach was a form of double renvoi solution whereby his Honour followed the reference to Chinese law, recognised that Chinese law required the application of Australian internal law, and simply applied the latter. Such an approach would essentially conflate the inquiry as to the relevant Chinese choice of law rule with the inquiry as to the Chinese renvoi rule. As the relevant Chinese choice of law rule bears some similarity to a proper law of the tort approach, McKechnie J may have concluded that the rule incorporated a rejection of renvoi. That said, this account of his Honour’s reasoning seems unsupported by the text of the judgment as McKechnie J made no mention of the renvoi difficulty and did not seek to identify the nature or policy basis of the Chinese choice of law rule. In this context, the single renvoi solution seems to accord far better with the trial judge’s approach.
[40] Dicey and Morris, above n24 at 67.
[41] Nygh & Davies, above n4 at 291.
[42] Compare Appeal decision at [31].
[43] In the Estate of Fuld, deceased (No 3) [1968] P 675.
[44] Re Annesley [1926] 1 Ch 692; Re Duke of Wellington [1947] Ch 506.
[45] Simmons v Simmons [1917] NSWStRp 50; (1917) 17 SR (NSW) 419.
[46] Re Askew [1930] 2 Ch 259.
[47] See respectively Taczanowska v Taczanowski [1957] P 301 at 305, 318; R v Brentwood Marriage Registrar [1968] 2 QB 956. See also Winkworth v Christie Manson & Woods [1980] Ch 496 at 514; Glencore International A.G. v Metro Trading International Inc [2001] 1 Lloyd’s Rep 284 at 298–299; Vladi v Vladi (1987) 39 DLR (4th) 563 at 566–567, 572–575.
[48] Nygh & Davies, above n4 at 291–292; See generally Dicey and Morris, above n24 at 67; Cheshire and North, above n37 at 55–56.
[49] Appeal decision at [35]–[40].
[50] Id at [35].
[51] [1948] ScotCS CSIH_4; (1949) SLT 139; Morse cites the English case of Church of Scientology of California v Commissioner of Police for the Metropolis (1976) 120 Sol. J. 690 as support for this proposition although he notes that the rejection of renvoi only appears in the full transcript of the case: C G J Morse, Torts in Private International Law (1978) at 268–269, fn12.
[52] 95 NW 2d 814 (Wis, 1959).
[53] 55 NJ 511 (NJ 1970); See also Restatement (Second) of Conflict of Laws, §145 (1971).
[54] See Private International Law (Miscellaneous Provisions) Act 1995 (UK) s9(5); See also Worker’s Compensation Act 1987 (NSW), s150E as inserted by the Workers Compensation Legislation Amendment Act 2002 (NSW), Sched 1.
[55] Appeal decision at [36]–[39]; See for example Dicey and Morris, above n24 at 73, 1517; Cheshire and North, above n37 at 627; Morse, above n51 at 268–269; Michael Tilbury, Gary Davis & Brian Opeskin, Conflict of Laws in Australia (2002) at 1012; The opposite view, namely that the doctrine of renvoi should not be rejected in tort, does have its advocates. See for example, Erwin N Griswold, ‘Renvoi Revisited’ (1938) 51 Harv LR 1165 at 1205–1207; Inglis, above n33 at 499–503. Adrian Briggs, ‘In Praise and Defence of Renvoi’ (1998) 47 ICLQ 877–884; Ed Rimmel, ‘The Place of Renvoi in Transnational Litigation – A Pragmatic Approach to an Impractical Doctrine’ (1998) 19 Holdsworth LR 55 at 85–89.
[56] Appeal decision at [40].
[57] Id at [42].
[58] Id at [44].
[59] Id at [47].
[60] Appeal decision at [48].
[61] Tilbury, Davis & Opeskin, above n55 at 1005.
[62] Appeal decision at [39].
[63] [1988] HCA 40; (1987) 169 CLR 41.
[64] Id at 79 (Mason CJ); 98 (Wilson & Gaudron JJ); 138–9 (Deane J).
[65] Id at 167.
[66] Id at 138–139.
[67] Id at 98.
[68] [1948] ScotCS CSIH_4; (1949) SLT 139.
[69] Id at 145.
[70] Id at 146.
[71] See Rahim v Crawther (1996) 17
WAR 559 at 569; Nalpantidis v Stark 
[1996] SASC 5461 
; (1995) 65 SASR 454 at 458.
[72] 7 Wis 2d 130 (1959).
[73] Id at 141–143.
[74] See generally, Luther L McDougal, Robert L Felix & Ralph U Whitten, American Conflicts Law (5th ed, 2001) at 466–472.
[75] 55 NJ 2d 511 (1970).
[76] Id at 526.
[77] See Mellk v Sarahson 49 NJ 266, 229 A.2d 625 (1967).
[78] Pfau v Trent Aluminum Company 55 NJ 2d 511 (1970) at 526; J–G Castel, Canadian Conflict of Laws (4th ed, 1997) at 121.
[79] James Audley McLaughlin, ‘Conflict of Laws: The Choice of Law Lex Loci Delicti Doctrine, The Beguiling Appeal of a Dead Tradition, Part One’ (1991) 93 West Virginia LR 957 at 997.
[80] Ibid.
[81] Otto Kahn-Freund, ‘General Principles of Private International Law’ 143 Recueil des cours 139, 1974 – III, at 436.
[82] [1994] 3 SCR 1022 at 1047.
[83] Zhang, above n1 at 516.
[84] Id at 538.
[85] Elliot E Cheatham, ‘Problems and Methods in Conflict of Laws’ 99 Recueil des cours 232, 1960–I, at 339.
[86] Xu Guojian, ‘Torts in Chinese Private International Law: A Case Note’ (1991) 40 ICLQ 684 at 686, 688.
[87] Above n1 at 517 (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ quoting Catherine Walsh, ‘Territorality and Choice of Law in the Supreme Court of Canada: Applications in Products Liability Claims’ (1997) 76 Canadian Bar Review 91 at 110).
[88] Pfeiffer, above n2 at 539.
[89] Andrew S Bell, Forum Shopping and Venue in Transnational Litigation (2003) at 25.
[90] Lauritzen v Larsen [1953] USSC 62; 345 US 571, 591 (1953) (Jackson J).
[91] Trial decision at [144].
[92] Ibid.
[93] Id at [157]–[159].
[94] Id at [160]. The monetary value of this distinction is unclear from the trial decision in Neilson as the parties had earlier agreed as to the quantum of damages payable should OPC be found liable under Australian law.
[95] It should be noted that it is well-established that the availability of particular heads of damages is a question of substance, not procedure, and will hence be governed by the lex causae: Stevens v Head [1993] HCA 19; (1993) 176 CLR 433 at 459–460. In Zhang, the Court left undecided the question of whether matters going to the quantification of damages should now also be considered to be substantive; Zhang, above n1 at 520. Nothing the Court said in Zhang called into question the principle that matters relating to the available heads of damage are properly considered to be substantive.
[96] Briggs, above n55 at 879–882.
[97] Bell, above n89 at 26–36, 46–47; Rimmel, above n55 at 60–61.
[98] Zhang, above n1 at 537 (Kirby J citing PB Carter, ‘Torts in English Private International Law’ (1981) 52 British Year Book of International Law 9 at 16).
[99] Ibid (Kirby J).
[100] Pfeiffer, above n2 at 540 (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
[101] Otto Kahn-Freund, ‘Delictual Liability and the Conflict of Laws’ 124 Recueil des cours 1, 1968–II, at 43.
[102] Ibid.
[103] Zhang, above n1 at 517 (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
[104] Appeal decision at [49].
[106] Id at 515 (Wynn-Parry J).
[107] Cheatham, above n85 at 338.
[108] Re Askew [1930] 2 Ch 259 at 278.
[109] J Georges Sauveplanne, ‘Renvoi’ in International Encyclopedia of Comparative Law (vol 3, 1990) at 12–35.
[110] Id at 15–33.
[111] See respectively Re Duke of Wellington [1947] Ch 506 and Re O’Keefe (deceased) [1940] Ch 124.
[112] Sauveplanne, above n109 at 26.
[113] Id at 25–33.
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