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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
1 contrary presumptions as to who died first. The court had to decide whosucceeded 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
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