Private International Law: Characterization & Conflicts

• When a case has a foreign element, the court must examine several things in order
  • Determine jurisdiction over parties
  • Determine nature of the question that requires decision
  • Select the legal system that governs the matter
• A judge cannot proceed until the juridical nature of the question has been decided.

Meaning of Characterisation

• Characterisation/classification/qualification is the process that determines which category the cause of action falls under
• The first step in determining which private international law rules should govern a claim is to determine its nature
• Once classified, the appropriate private international law rule will be applied to determine the governing law.

The Conflict of Characterisation

• Characterisation of a matter is usually automatic and easy
• Real characterisation problems are rare and lack practical interest
• A characterisation conflict arises in three instances:
  • When the facts of the case may be characterised differently under the law of the forum vs. a foreign law.
  • When the law of the forum and the governing law apply the same connecting factor with different interpretations.
  • After the foreign law has been selected, the law of the forum and the foreign law may have different interpretations as to whether a provision is procedural or substantive.

Characterisation of a Cause of Action

• Characterisation/primary characterisation is allocating a problem presented by facts to its correct legal category
• Categories include contract, tort, and succession
• Complications can arise where the dividing line is blurred between judicial categories or when the forum and foreign legal system characterise the question differently.
• Anton v Bartolo [1891] or the Maltese Marriage Case is an example

Characterisation of a rule of Law (Secondary Characterisation)

• Secondary characterisation: any additional characterisation process needed after the forum decides to apply another jurisdiction's law based on the primary determination
• After determining the main legal issue by virtue of a connecting factor, apply the correct private international law rule to determine which law governs

Incidental Question

• One needs to identify the legal category into which some particular rule falls to determine if it falls under a category regarding which the law selected by the choice of law rules is paramount.
• A foreign law only has power over certain areas and may not control every aspect of a juridical question.
• The extent of its control depends on the lex fori and differs between legal systems
• Procedural issues in English contract law are ruled upon using English law
• Any rule must be classified to see if it is procedural or substantive; lex causae applies in cases of substance, lex fori applies if procedural

Odgen v Odgen Case Facts

• Philip, a 19 year old domiciled Frenchman:
  • Married Sarah, a domiciled Englishwoman, in England
  • He did not get parental consent as required by Article 148 of the French Code
  • He returns to France before obtaining an annulment in a French court due to lack of consent
• Sarah:
  • Sues in an English court to dissolve the marriage, due to Philip's adultery and desertion
  • The court lacks jurisdiction since Philip is domiciled in France
  • Describes herself as a widow, marries an Englishman in England
• Her new husband, Mr. Odgen petitions for a decree of nullity because Sarah was still married to the Frenchman
• Court had to decide whether Philip's parents' consent was an issue of capacity to marry or form and validity of the ceremony

Considerations within this Case

• Private international law rules in both jurisdictions said capacity issues were governed by the party's domicile and issues of form by where the celebration occurred
• Characterising the French rule requiring consent provides different outcomes based on which legal system is used
  • Rule would be substantive using the French system
  • Rule would procedural using the English system
• The court used English law (lex fori) to characterise the French rule (lex causae)
• Court of Appeal: marriage valid because the ceremony followed English law, the place of celebration
  • Parties were married in England but single in France
  • Latter marriage between Sarah and the Englishman was bigamous

The Legal System for Characterisation

• Term lex fori means laws of the country where the action is brought
• Many jurists prefer this, and characterisation of the cause of action is based on the law of the forum
• To embrace "analogous legal relations of foreign type" concepts of private international law should be interpreted with a wide approach.

The Lex Causae

• Term lex causae means the law governing the action
• Every legal rule gets its characterisation from the legal system to which it belongs
• Approach has been criticised due to the way characterisation relies so heavily on the law itself requiring characterisation.

Comparative Law Theory

• Authors such as Beckett and Rabel: analytical jurisprudence can solve the issue
• Characterisation should be governed by analytical jurisprudence based on comparison of laws
• Extract essential general principles of universe application, not just principles of one country
• Idea allows for international outlook and reciprocal foreign concepts
• The theory is impractical, and while it helps find differences between legal systems, it does not lead to solutions.

Theory of Two-Fold Characterisation

• A middle ground, dividing characterisation into primary and secondary
• Lex fori applies at the primary stage
• Lex causae applies at the secondary stage
• Issue ruled on using lex fori if procedural
• lex causae if substantial

The Incidental Question

• An (or preliminary) question in connection with the main question in a case, which depends upon a decision on it.
• If the main question is succession, an incidental question is the marriage’s validity.
• Requirements for incidental questions:
  • The main issue must be ruled on by a foreign law
  • Subsidiary issue involving a foreign element with its own choice of law (raising the question separately)
  • The choice of law must differ from the law governing the main question.
• Example:
  • A Greek national domiciled in Greece dies intestate, property in England
  • Widow sues in England claiming the share
  • English PIL distributes the estate via Greek law
  • Greek law: wife shares in husband's estate
  • Question: Is she the wife? Married in England in civil ceremony
  • English PIL (the lex fori): law of the place of marriage (lex loci celebrationis) makes marriage valid because the laws of England (civil ceremony) were followed
  • Greek PIL (domicile): marriage decided by nationality. Ceremony void under Greek Law.
  • Principal issue is succession. English PIL selects domicile to decide succession
  • Incidental Question: claimant's marital status

Conflicting International Law

• By the law of the forum (England), the lex loci celebrationis upholds her status, but the law governing succession (Greek law) voids it because claimant does not follow Greek law.
• This causes a conflict of laws.
• Which law should a jurisdiction use: their own PIL rules (lex fori) or those of the legal system selected to govern the main question (lex causae)?

Three Main Approaches to the Incidental Question

The law governing the main question (lex causae approach)

• Legal system governing the main question should apply to the incidental question because it is most connected to the matter and promotes international harmony
• See Schwebel v Ungar, Lawrence v Lawrence.
• The lex fori approach
  • The forum emphasises public policy and coherence.
• The nature of the individual case and the policy of the forum towards this: Common-law authors believe there is no prior solution - each case must be taken considering relevant policy objectives/ practicalities.

Explore cause of action characterization in international and domestic cases, and the comparative law theory. Examines two-fold characterization, incidental questions, and renvoi in private international law.