#10014 - Characterisation - Conflict of Laws

CHARACTERISATION

WHAT IS IT

1. When an English judge is called upon to apply a foreign law in the determination of a dispute, he must decide how to frame the question, or questions, as arising for decision. For example, an issue about the validity of a marriage could also be framed as being about the capacity of a person to marry. As Dicey, Morris and Collins indicate, the definition of these categories and the location of facts within them comprise the process of characterization

TWO MAJOR QUESTIONS

1. What is being characterized? Is it the facts/issues (Briggs says it should be) or is it the legal rules?

2. Should characterization be done in accordance with English Law (as the lex fori) or the foreign law (as the lex causae)?

WHAT’S THE OBJECT OF CHARACTERIZATION?

1. Clarkson & Hill – they say it’s the rule of laws, this is wrong according to Briggs because:

2. Briggs – the object of characterization (ie. the ‘thing’ characterized) is the issues, rather than rule of laws. Otherwise, one could end up with two contradictory solutions or none at all. So the judge is required to identify an issue and apply the rule found in the system of law which governs that issue

3. Re Cohn

• only case to have confronted this issue directly.

• FACTS: A mother and daughter, domiciled in Germany but taking refuge in England, perished in an air raid. English law and German law had contrary presumptions as to who died first. The court had to decide who succeeded to the estate of the mother.

• Had the judge simply characterized the respective rules of German and English law, he might have found that both or neither applied

• Judge identified the issue of inheritance and applied the German rule.

4. ME: Isn’t the incidental question all about the fact that where issues are selected, there is still the possibility that there will be two competing issues? The point being, that whether you pick issues or rules of law as the object of characterization, there is the chance that there will be two options. The most persuasive argument, therefore, is that the only case to have addressed this question directly used the issues (Re Cohn) so for the present time that’s the correct answer.

LEX FORI OR LEX CAUSAE APPROACH?

WHAT IS CLASSIFICATION BY LEX CAUSAE

1. Classifying by the lex causae means that English court should classify a French rule as it is classified in French law, not in the way the equivalent English rule is classified by English law

2. Re Maldonado – illustrates where English court followed lex causae approach. As Spanish law was used to determine whether the claim of the Spanish state to the movable property of a Spanish domiciliary who had died without next of kin was a matter of succession (and so governed by Spanish law) or a ius regale – a claim of the Crown – in which case the English Crown not the Spanish state would take).

HOW’S IT CURRENTLY DONE –LEX FORI

1. In English law both aspects of characterization are undertaken by reference to English law (including English private international law) as shown by Ogden v Ogden or more recently Montage v Irvani

2. Briggs – provides the analogy that English law designs the pigeonholes and and English sorter decides which facts belong to which pigeonhole

3. Five Star Trading – the location of facts is carried out ‘in a broad internationalist spirit in accordance with the principles of the conflict of laws of the forum’ SO FOR EXAMPLE

4. Re Bonacina – whether a gratuitous promise (ie. one without consideration) is enforceable will be a question of the material validity of a contract, even though English law does not recognise gratuitous promises as contracts

ESSENTIAL PART OF THIS WHOLE BIT

1. Five Star Trading – classification is generally done in England by the lex fori, but this case emphasised that there shouldn’t be such a strict adherence and it should be about a search for the appropriate principles to meet particular situations. Indeed, issues to be decided (this applies to how to apply Art 4 also) should ‘receive shape from the subject matter and wording of the Convention itself’

EXCEPTIONS

1. exception to lex fori for characterization is that whether property is movable or immovable is determined by the lex situs

2. Also the amount of autonomous meanings in Regulations

ARGUMENTS FOR CLASSIFICATION BY THE LEX FORI

1. CONTROL

1. Dicey, Morris and Collins - Means that English courts maintain control over its own conflicts rules, otherwise, it ‘would no longer be master in its own home’ BUT

2. Clarkson & Hill – as shown by Ogden, English conflict of laws rule that capacity is determined by domicile meant that the only applicable laws were French law and English law. So clearly, English rules still would ‘control’ the issue even if French law was decided to be applicable

2. SIMPLICITY

a) English courts can apply concepts they are familiar with

3. CUMULATION

1. at initial categorization stage one doesn’t know what the lex causea is. One can easily be left with more than one lex causae seeking to be applied, which is the problem of cumulation.

4. GAP

a) where lex causae approach leads to no conclusion that no law at all is relevant

DISADVANTAGES TO LEX FORI APPROACH

1. LAW OF NOWHERE

• Clarkson & Hill - applying foreign law but ignoring classification could lead to a distorted effect

• this relates to whether renvoi applies

2. UNDERMINES POINT OF CONFLICT PROCESS

• Clarkson & Hill – the whole point of conflict of laws is to deal legally with situations that do not exist in English law; foreign legal concepts cannot be disregarded just because they are unknown to English law

ALTERNATIVE APPROACHES

1. FALCONBRIDGE VIA MEDIA APPROACH

1. 2 stage process whereby first stage dominated by lex causea and second stage dominated by lex fori

2. Pascal – suggests that it’s unclear what is meant by this approach, but thought to mean that characterization of the issue has to be achieved (by reference to the lex causae) before selecting the connecting factor.

3. Whilst it’s not clear what this approach was, it raises the point that perhaps there should be a reconciliation between the 2 approaches?

2. KAHN-FREUND’s ‘Enlightened lex fori’ Approach

1. there should be special principles and categories in English law just for it’s conflicts cases

2. These principles...