# In which conditions can a renvoi be admitted?

## What the Regulation says

Admission of a renvoi is subject to certain conditions

The rules of conflict of the State whose law has been specified pursuant to the Regulation must make a renvoi either:

- to the law of a Member State.

- to the law of a third State which will then apply its own law.

## Renvoi to the law of a Member State

The first hypothesis must not be reduced to that of a renvoi in the first degree.

The law specified in this way may be that of the State of the forum or that of another Member State.

Admitting the renvoi here will facilitate the task of the authority that has been seised. In the one case, its role will be to apply its own law while in the other, it will be that of a Member State, for which we can hope that information will be more easily accessible.

## Example

A German who was a resident in Japan died leaving immovable property in France. The French courts were seised pursuant to Article 10 of the Regulation.

Pursuant to Article 21, Japanese law is applicable to the succession.

But Japanese law makes a renvoi to the law of the nationality of the deceased. The French courts must admit the renvoi in favour of the law of a Member State.

## Renvoi to the law of a third State which will then apply its own law

The second hypothesis is that of a renvoi that results in specifying the law of a third State that accepts to apply.

This is a renvoi of the second degree.

However, if the law of the third State refuses to apply, the renvoi must not be admitted.

## Example

A Japanese national died in Morocco leaving immovable property in Belgium. The Belgian courts have jurisdiction pursuant to Article 10.

Article 21 of the Regulation specifies the application of Moroccan law as the last residence of the deceased. The Moroccan rules of conflict make a renvoi to Japanese law as the nationality of the deceased.

The Japanese rules of conflict also give jurisdiction to the national law of the deceased. The French judges will therefore apply Japanese law.

## What the Regulation does not say

The Regulation says nothing about the hypothesis in which the conflict rule of a third State might make the movable and immovable property subject to different rules of conflict.

According to the assets of the deceased, we might find ourselves in a situation where the rule of conflict of the third State makes a partial renvoi.

Accepting such a renvoi will result in the different assets that make up the estate of the deceased being subject to two different laws, thereby abandoning the principle of unity that is one of the foundations of the Regulation.

## Example

An Austrian died in the United Kingdom, leaving behind immovable property in Austria. Article 21 of the Regulation specifies English law. English private international law tends to make a distinction between movable and immovable property.

The former is subject to the law of the last domicile of the deceased. The latter is subject to the law of its location. English law therefore accepts that it applies to the movable property, but specifies that Austrian law must apply as the location of the immovable property.

Neither the letter of Article 34, nor the terms of the Preamble can set aside the renvoi in this case. The majority of the doctrine argues in favour of it being accepted.