Characterisation in Conflicts of Law (L8) Flashcards
What are the steps of the choice of law process?
Characterisation.
Selection of the choice of law rule.
Application of the applicable law.
What is the characterisation stage?
The process by which the forum allocates facts to a legal category (‘classification’ / ‘qualification’ / ‘categorisation’).
For example, delict.
What does it mean to say the ‘application of the applicable law’?
Through the choice of law rule, identify the applicable law (or ‘governing law’) (i.e the law which the forum will apply to find the answer to the substantive question arising) by means of a connecting factor.
The connecting factor is the link between:
(i) an event or transaction or person and;
(ii) a legal system.
What are the four key ‘choice of law’ questions?
- How does one characterise the question in this action?
- What choice of law rule applies?
- What connecting factor does the choice of law rule provide for questions of that character?
- What system of law does that connecting factor require to be applied?
What are the categories of connecting factors?
Personal.
Identify the applicable law by virtue of a personal connection such as an individual’s domicile, habitual residence, or nationality.
Territorial or event-based.
Identify the applicable law by virtue of a territorial link between a fact or event and a legal system (e.g. the place where a marriage was celebrated).
Voluntary.
Rely on party autonomy (party ‘choice of law’).
What exactly is characterised?
Choice of law rules are intended to identify the system of law which should govern the facts of a situation so as to decide what, if any, legal consequences flow from that situation.
What are the possible types of conflicts?
Conflicting characterisations.
Conflicting concepts.
Conflicting meanings: ‘hidden homonym’.
- Different legal systems using the same word for different things.
What is the lex fori theory of characterisation?
It is the job of the forum to characterise the law.
The lex fori decides generally.
Exception: the lex situs must always categorise whether property is moveable or immoveable.
How does the case of Korvine’s Trust [1921] 1 Ch 343 demonstrate the enlightened lex fori theory?
Two French domiciliaries entered into a marriage, no express contract. French system of community of property. Rights vested at the point of marriage, no change depending on domicile later in life. Moved to England, acquired a lot of money. Acquired English domiciles. Husband died. In his will, he chose to dispose of all his property as if it was his own, forgetting the French system and the half that belonged to his wife.
English court needed to characterise the claim. If categorised as succession, points to English law, wife would get nothing. If seen as a matrimonial contract, would point to French law, wife would get half the estate.
English court was willing to use the enlightened lex fori approach.
What is the lex causae theory?
Applies to the specifics of the case. Laws selected from among the pertinent legal systems.
How does Maldonado [1954] P 223 demonstrate the lex causae theory?
Spanish domicilary, no next of kin. State of Spain claimed her money.
At the same time, the English exchequer claimed the money, saying if it’s ownerless it falls to the Crown. English court asked was the Spanish claim just claiming ownerless money like England? In the Spanish law, the claim is a genuine claim of succession.
That being the case, the English court honoured the Spanish claim.
What is important to be alert to in terms of characterisation?
Manipulative characterisation:
The exercise of characterising a set of facts or rule of law in such a way as to achieve a desired result.
False conflicts:
Where two or more ‘conflicting’ characterisations point to the same applicable law.
What is the classification between substance and procedure?
Matters of procedure (evidence/remedy) are governed by the lex fori.
Matters of substance (right) are governed by the lex causae.
Classification between substance and procedure is a task for the forum.
