Trustees have been held absolutely liable for misdelivering income and/or principal. In a multijurisdictional setting, an incorrect assessment by a trustee as to which body of law governs in a given situation could result in such a misdelivery. Think conflicting doctrine governing the validity of a trust of land. If there is no valid express trust then we have a resulting trust and the subject property belongs outright and free of trust, say, to the settlor’s heirs at law. If there is a valid express trust then the equitable interest in the subject property accrues to the beneficiaries designated in the trust’s terms. Let’s say the law of the forum would bring about one result while the law of the situs (of the land) would bring about the other. Getting it wrong risks misdelivery.
Assume that a dispute over rights and duties is in adjudication; assume that the law prevailing in the jurisdiction of the forum court calls for a general deference to the law of some foreign jurisdiction, to include the conflict-of-laws rules of that foreign jurisdiction; finally, assume that the conflict-of-law rules of the foreign jurisdiction call for application of the substantive law of the forum. Such a rebound application of the substantive law of the forum is an example of renvoi, which is French for to send back or return unopened. “If, in applying the doctrine of renvoi, the foreign jurisdiction’s conflict-of-laws rules would apply the forum’s law, this reference back to the forum to its own law is called ‘remission,’ and if the laws of the foreign jurisdiction refer the forum court to the law of a third jurisdiction, this is called ‘transmission.’” See 15A C.J.S. Conflict of Laws §37. The German term for the juridical process of “remission” is Rückverweisung; the German term for the juridical process of “transmission” is Weiterverweisung. “The word ‘renvoi’ itself does not appear in either English or American judicial opinion prior to 1903.” See Schreiber, The Doctrine of the Renvoi in Anglo-American Law, 31 Harv. L. Rev. 523 (1918).
Here is an example of how the doctrine of renvoi might be encountered in the context of contemporary trust jurisprudence (U.S.). Assume the validity of an inter vivos trust of land is being litigated in a jurisdiction other than the jurisdiction in which the land is situated. There is then the law of the forum and the law of the situs (of the land). Which law is applicable?
The Restatement (Second) of Conflict of laws, specifically §278, provides that “the validity of a trust of an interest in land is determined by the law that would be applied by the courts of the situs [of the land].” If the deference to the law that would be applied by the courts of the situs is expansive enough to capture the conflict-of-laws rules that would be applied by the courts of the situs, then it is possible that those rules would call for application of the substantive law of the forum such that there is a renvoi.
The relevant language of the Restatement (First), specifically §241, however, is/was not so expansive: “The validity of a trust of an interest in land is determined by the law of the state where the land is.” Arguably the words “where the land is” effectively constitute/ed a ruling out of any application of the doctrine of renvoi in this particular context.
Article 17 of The Hague Convention on the Law Applicable to Trusts and on Their Recognition expressly excludes application of the doctrine of renvoi for its purposes. Here is the language: “In the Convention the word ‘law’ means the rules of law in force in a State other than its rules of conflict of laws.” This Hague Convention, which the U.S. has yet to ratify, is discussed generally in §8.12.2 of Loring and Rounds: A Trustee’s Handbook (2022). The Handbook itself is obtainable via https://law-store.wolterskluwer.com/s/product/loring-rounds-a-trustees-handbook-2022e-misb/01t4R00000OVWE4QAP. The Handbook’s §8.12.2 is reproduced in its entirety in the appendix below. Conflict of laws is taken up generally §8.5 of the Handbook.