On 12 April 2021, the Family Court of Namur, Belgium, applied the doctrine of renvoi under Article 34 of the Succession Regulation (the judgment and the commentary of Prof. Jean-Louis Van Boxstael – in French – are available here).
The deceased was born in 1931 in Belgium, but was living in South Korea when he died in 2019. He held both Belgian and Korean nationalities. In 2001, the deceased wrote a will in which he declared that a (Belgian?) foundation would receive all his assets after his death. The plaintiff owned a building in Belgium and had monies on bank accounts. It does not seem that he had children.
The Belgian court was petitioned by the foundation in 2021.
The court found that the deceased was resident in Korea. It retained jurisdiction, however, under Article 10(1) of the Succession Regulation, which provides that where the deceased was not habitually resident in a Member State, jurisdiction can be founded on the nationality of the deceased.
The court found that the deceased being a Belgian national, the court could retain jurisdiction.
Under Article 21 of the Succession Regulation, the applicable law should be, in principle, the law of the last habitual residence of the deceased. The court found that it was Korea. However, it noted that, under Art. 49 of the Korean Conflict of Laws Act, a Korean court would apply the law of the nationality of the deceased.
The deceased, however, was a dual national. The Belgian court referred to Art. 3(2) of the Belgian Code of Private International Law which provides that, in case of dual nationality, Belgian nationality prevails. It thus considered that the deceased was a Belgian national, and that Belgian law was applicable by renvoi from Korean law.
The most interesting issue raised by the case was that of handling the dual nationality of the deceased.
For jurisdiction purposes, Art. 10 provides:
1. Where the habitual residence of the deceased at the time of death is not located in a Member State, the courts of a Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on the succession as a whole in so far as: (a) the deceased had the nationality of that Member State at the time of death…
The rule does not refer to the “nationality of the deceased” in general. It refers to a person who has the nationality of a particular Member State. This resolves the issue of dual nationality where one of the nationalities is that of a third state. A rule of the forum provides taking into account the nationality of the relevant Member State. This implicitly excludes taking into account the nationality of the third state, or whether it might be more effective.
For choice of law purposes, Art. 34 provides:
1. The application of the law of any third State specified by this Regulation shall mean the application of the rules of law in force in that State, including its rules of private international law in so far as those rules make a renvoi: (a) to the law of a Member State
The rule does not address the issue of dual nationality. It only provides to apply foreign choice of law rules if they refer to the law of a Member State.
So, the critical question is to determine the content of the foreign choice of law rule and ascertain whether the foreign rule designates the law of a Member State. It is therefore for the foreign legal system to say how it addresses dual nationality. If, under foreign private international law, local nationality prevails, this means that the foreign choice of law rule does not designate the law of a Member State.
In this case, the Belgian court should have wondered whether a Korean court would prefer Belgian nationality over Korean nationality. Instead, the Belgian court applied Belgian principles.
Maybe the Belgian court should have read the entirety of the Korean Conflict of Laws Act, a translation of which is freely available on the internet. Article 3 of the Act provides:
(1) In case the law of nationality of a party shall govern, if the party has two or more nationalities, the law of the country, which is most closely connected with the party, shall be the law of nationality: if one of the nationalities is the Republic of Korea, then the law of the Republic of Korea shall be the law of nationality…
So it seems that a Korean court would not have applied Belgian law: it would have applied Korean law. The Belgian court rewrote Korean private international law and invented a renvoi which did not exist.