„In the United States, where the Forum`s conflict-of-laws rule relates to the law of a foreign state, the reference is generally understood to be the domestic law of that foreign state, not its conflict of laws rules. The question of whether the reference should instead be made to the conflict-of-laws rule of the foreign state is an issue that has been the subject of much debate and raises the issue of removal. Countries such as Denmark, Greece and the United States do not accept removals. However, if the latter country does have conflict-of-laws rules that require it to exercise jurisdiction, the outcome may differ depending on where the claimant invokes jurisdiction. Whether there is actually a difference depends on whether the other State applies a uniform referral system. A single rejection tribunal always refers to the conflict-of-laws rules of the other law. If these rules were to refer the case back to the court of the court seised, the court of the court seised accepts the first judgment and applies its own laws. Thus, equality of results is always achieved as long as competing laws apply different systems. Some early French authorities support this approach (e.g.
the Forgo case (1882) and the Soulié case (1910)). It is also incorporated into article 27 of the Introductory Act to the Civil Code (1900). However, if both laws operate either without a referral system or with a single referral system, forum shopping will be a potential problem. „The courts and authors sanctioning the `referral` would insist that, in a case such as that of the Bar Association, the New York court must apply French law in accordance with Article 47, that is: not the territorial law of the France, but the whole of French law, including its method of determining conflict of laws issues, and that it will therefore apply the law of New York. The French view of conflict of laws refers to the testator`s national law when interpreting the will. According to that view, the New York court would accept the request for a preliminary ruling. * * * France, the law of the court (where the property is located), examines the law of the testator`s habitual residence in Spain and applies Spanish law. Spanish law respects the law of the nationality of the deceased, which is Italy. Italy, as a court that applies only a single referral system, will not accept double referral and it is likely that the France will apply Italian law in this case.
„The case presented to such a New York court is not fundamentally different from a case that arises in France when it comes to the construction of the will of an American resident in France. In such a case, the French court would refer the question of interpretation [of the will] to New York law and, since section 47 of the Inheritance Act refers the interpretation to French law (domicile rights), 61*61, the French court would apply French law. The French court accepts the „reference” because the „reference” is part of French law. * * * If this court were to accept and apply the doctrine of reference, it would be referred to the Kentucky statute of limitations by applying the Ohio Borrowing Statute. Kentucky`s statute of limitations for personal injury is one year. Notwithstanding the fact that counsel did not mention the next step in the referral case, i.e., the reference to Kentucky`s conflict of laws, the Court itself sorted the laws of Kentucky in order to determine the Revised Kentucky Statutes § 413.320 (1942)). The doctrine of reference is therefore not part of the conflict of laws rules of the United States. Its introduction into our law would be most regrettable because of the uncertainty and confusion it would cause in the administration of justice and because of its demoralizing effect on the future development of conflict-of-laws law.
„The most concrete argument put forward in favour of referral is that it would ensure uniformity of judgments between the different national courts called upon to decide on the succession of a deceased person who owns movable property in different States * * *. But this claim, I believe, has proved untenable in virtually every case. See Bate, Notes on the Doctrine of Reference, 31 Harvard Law Review and 10 Columbia Law Review (181 N.Y.S., p. 346). In Australia, the doctrine of reference was strengthened by the High Court`s decision in Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 (29. September 2005). In that decision, the High Court took into account the situation of Ms Neilson, who had injured herself by falling down the stairs of her apartment in Wuhan, China. Her home had been made available by her husband`s employer, the Overseas Projects Corporation, and Ms Neilson brought an action for negligence in the Supreme Court of Western Australia in June 1997, six years after the accident. Under Australia`s conflict of laws rules, the law of the venue or the lex loci delicti governs tort matters (according to the 2002 decision of that court, Regie Nationale des Usines Renault SA/Zhang). This meant that the law governing the settlement of the dispute was that of the People`s Republic of China.
However, under Chinese law, the claim would be time-barred for exceeding the limitation period (Article 136 of the General Principles of Civil Law of the People`s Republic of China). However, Ms Neilson relied on section 146 of the General Principles in her defence, arguing that the provision of that section must apply in order to make the law applicable to the Australian law at issue. Article 146 stated: „It is an eternal reference from one rule of conduct to another, without ever descending to the application of any national law, a closed circle without exit. This is the application of lawn tennis to international law. „The complex and difficult theory known as `revoi` (of which the word `remission` is perhaps an appropriate translation) is therefore submitted directly to the Court for consideration. In other words, it is for the arbitrator to decide whether section 47 of the Succession Act, referring to the interpretation of the residual clause of Coster Chadwick`s will, meant that the specific provision of French law applicable to extinguished legacies should be applied, or the French from the point of view of conflict of laws law, with its reference to New York law, for the purpose of deciding the question of this omission. (181 N.Y.S. at page 342) * * * „The reason why conflict-of-laws rules almost unanimously reject the doctrine of reference (which allows a court of the forum to apply the conflict of laws principle of a foreign state) is that it is likely to lead the court to follow a path that corresponds to an endless circle.
For example, in this case, if Buckeye v. The Buckeye line of Wisconsin cases must follow, the Wisconsin court first reviews California law to see if a woman can sue her husband for tort. California substantive law says it cannot. However, California has adopted a conflict of laws principle that states that the law of residence determines this matter. By applying this principle, the court is referred to Wisconsin law because Wisconsin is the state of residence. Again, the court applies Wisconsin law and, among the previous decisions of the Buckeye v. Buckeye of the authorities, should again refer to California law, as such a series of decisions does not recognize that the residency law has anything to do with intermarital immunity, but 63*63 notes that state law controls the violation. Therefore, there is another system called Double Revoi or doctrine of foreign courts, which also ensures parity of outcome as long as no other relevant law uses it. In this scenario, the court of the court seised assumes that it sits as a foreign court and will decide the matter like the foreign court.
In this system, there can never be more than two decrees, for example the English forum refers to French law (only one referral system), so English law is applied (1st decree) and the France accepts the decree (2nd and last). Currently, only English law uses this approach. „The referral theory has been the subject of much legal discussion, most of which have rejected its application in this country, with the exception of a few citations.” Goodrich, Conflict of Laws, p. 20 (1949). As the quotations quoted above show, the authorities of this country reject the removal in principle. The American Law Institute, in its Restatement of Conflict of Laws, § 8, accepts reference in two cases where the land claim is at issue and the validity of a divorce decree is contested. The rewording reads differently: „Wisconsin certainly should not adopt the much-criticized Revo principle so as not to overturn Buckeye v.