Worksheet 2 - Private International Law PDF

1 UNIVERSITY OF GUYANA FACULTY OF SOCIAL SCIENCES DEPARTMENT OF LAW Second Semester 2023/2024 LAW 3207 – PRIVATE INTERNATIONAL LAW Lecturers: Hubert A. F...

1 UNIVERSITY OF GUYANA FACULTY OF SOCIAL SCIENCES DEPARTMENT OF LAW Second Semester 2023/2024 LAW 3207 – PRIVATE INTERNATIONAL LAW Lecturers: Hubert A. Forrester, Iyesha Campbell-Andries WORKSHEET #2: (a) Characterisation, (b) The Incidental Question Characterisation In a case containing a foreign element, the court will have to examine various matters in sequence. First, it will have to determine whether the court has jurisdiction, both over the parties and the cause of action. Having satisfied itself that it possesses jurisdiction, the court must next determine the juridical nature of the question that requires decision. Is it, for instance, a question of breach of contract or the commission of a tort? After this, the court must select the legal system that governs the matter. However, until a judge decides the juridical nature of the question, he cannot proceed further. Meaning of Characterisation This process of determining which category the cause of action falls under is known as characterisation. Also referred to as classification or qualification, characterisation is the determination of the nature of the problem presented to the court for solution, as the first step in determining what private international law rules should be selected to govern it. How, from a legal standpoint, should the problem be characterised? Once the question has been allocated to its correct legal category, the relevant private international law rule will be applied in order to determine the governing law. LAW 3207 – Private International Law  2 Depending on the characterisation of the action, different private international law rules will apply. For example, if a deceased person leaves movable assets, and the matter is characterised as one of administration of assets, the PRIL rule that applies states that the law of the forum is the governing law. However, if the judge characterises the matter as one of succession, the PRIL rule that applies states that the law of the deceased’s domicile is the governing law. As you can see, depending on how the issue is characterised, different PRIL rules will apply leading to different governing laws, and potentially different outcomes. The Conflict of Characterisation Characterisation of a matter is usually done automatically without much difficulty. So much so that it has been said that real characterisation problems have only been presented in few cases and that the problem is devoid of practical interest. However, occasionally, the matter is not that simple. A conflict of characterisation may arise in the following three (3) instances: 1. Where the facts of the case may be characterised in the law of the forum in a different way than it is characterised under a foreign law. It may be regarded by one law as a question of contract but in another law as a question of tort or property. This is a conflict of characterisation of the cause of action. This conflict arises before the governing law has been selected. 2. A conflict of the connecting factors may arise where the law of the forum and the governing law apply the same connecting factor, but different interpretations are attached to them. 3. A conflict may also arise after the foreign law has been selected. Here, the law of the forum and the foreign law may have different interpretations as to whether a particular provision of the foreign law is to be regarded as procedural or substantive. Characterisation of a Cause of Action (Primary Characterisation) Characterisation of a cause of action, also referred to as primary characterisation, is the allocation of a problem presented by a factual situation to its correct legal category. When we speak of the nature of the problem or its legal category, here we’re talking about categories such as contract, tort, succession. But on occasion there might be some complications. There may be situations where the dividing line between one judicial category and the other is blurred. It may also LAW 3207 – Private International Law  3 be a case that the law of the forum and the foreign legal system characterise the question completely differently. A classic example of this difficulty is Anton v Bartolo sometimes referred to as the Maltese Marriage Case. It was decided by a French court in Algiers. A Maltese couple who married while being domiciled in Malta, acquired a new domicile in France. The husband purchased land in France. After the death of the husband, the widow filed an action in France placing a claim on the land of her now deceased husband. There was no issue with determining the rules of the choice of law as the rules both in Maltese and French Private International Law were the same: succession to land was governed by the law of the situs, while matrimonial rights were dependent on the law of the domicile at the time of the marriage. The first essential, therefore, was to decide whether the facts raised a question of succession to land or of matrimonial rights. At this point, however, a conflict of characterisation emerged. In the French view, the facts raised a question of succession; in the Maltese view, a question of matrimonial rights. In such a case, the ultimate decision on the merits of the case will vary with the country in which the action is brought, if each court applies its own rule of characterisation. Characterisation of a Rule of Law (Secondary Characterisation) "Secondary" characterisation refers to any additional process of characterisation which may become necessary after the forum has decided to apply the law of another jurisdiction as the result of the primary determination. After ascertaining the main legal issue (primary characterisation), by virtue of a connecting factor (such as domicile), the correct private international law rule will be applied to determine the governing law. For example, having characterised an issue as one of succession, a Frenchman domiciled in France but having died leaving movables in England is governed by French law. At this point, it may become necessary to identify the legal category into which some particular rule falls, in order to discover whether it falls within a category with regard to which the law selected by the choice of law rules is paramount. LAW 3207 – Private International Law  4 A foreign law has certain spheres of control. It may not control all aspects of a particular juridical question. Its sphere of control is determined by the lex fori and as such will differ from legal system to legal system. For instance, in English contract law, procedural issues are determined by English law. As such, any rule pleaded will need to be characterised to determine whether it is a rule of procedure or substance. In a case of substance, the lex causae applies, be it procedural, the lex fori applies. This dilemma is found in the case of Odgen v Odgen. The facts of the case are as follows: a domiciled Frenchman (Philip), aged nineteen, married a domiciled Englishwoman (Sarah), in England, without first obtaining the consent of his parent, as required by Article 148 of the French Code. The husband later moved back to France where he obtained an annulment of this marriage in a French court on the ground of want of consent. Sarah later instituted suit in an English court for dissolution of their marriage on account of Philip’s adultery and desertion. The court dismissed the case for want of jurisdiction as Philip was domiciled in France. Describing herself as a widow, Sarah subsequently went through a ceremony of marriage in England with a domiciled Englishman. Her new husband, Mr. Odgen, later petitioned for a decree of nullity on the ground that at the time of their marriage ceremony Sarah was still married to the Frenchman. The court had to decide a secondary issue concerning the validity of the marriage, that is, whether the requirement of Philip’s parent’s consent was an issue of capacity to marry (substance) or of form and validity of the ceremony (procedure). The private international law rules in both jurisdictions dictated that issues of capacity were governed by the party’s domicile and issues of form by the law of the place of celebration. The (secondary) characterisation of the French rule requiring consent would provide a different result depending on which legal system was used to characterise the rule. Using the French legal system, the rule would be one of substance; using the English legal system, the rule would be one of procedure. So, which legal system should the court use to conduct this secondary characterisation? The court used English law (the lex fori) to characterise the French rule of law (the lex causae). The Court of Appeal held the marriage to be valid, since the ceremony had been performed in accordance with the requirements of English law, the law of the place of celebration. This resulted in the parties being considered married in LAW 3207 – Private International Law  5 England, but single in France. The latter marriage between Sarah and the Englishman was therefore bigamous. The legal system for Characterisation The Lex Fori The term ‘lex fori’ means laws of the country where the action is brought. This is the preferred legal system for many jurists and, in practice, characterisation of the cause of action is effected on the basis of the law of the forum. As the case contains a foreign element, the classification which is made will not necessarily be the same as that which would be made in a purely domestic case. The concepts of private international law must be given a wide meaning in order to embrace “analogous legal relations of foreign type”. The Lex Causae The term lex causae refers to the law governing the action. It has been argued that every legal rule takes its characterisation from the legal system to which it belongs. Hence, the characterization of a cause of action should be done by the legal system that applies to the action. This approach has been criticised on the ground that, if the law which is finally to regulate the matter (i.e. the lex causae) depends upon characterisation, then it is not appropriate to make characterisation according to a law which in itself requires characterisation. Comparative Law Theory Some authors like Beckett and Rabel propose to use analytical jurisprudence to solve the issue. In their view, characterisation should be governed by analytical jurisprudence on the basis of a comparative study of laws which extracts the essential general principles of universal application, not principles based on, or applicable to the legal system of one country only. The idea is to be more reciprocal of foreign concepts and have a more international outlook. This theory has been criticized on the ground that it is impracticable. There are not a lot of universal principles and while comparative law helps finds differences between legal systems, it does little in terms of proposing solutions. Theory of Two-Fold Characterisation By dividing the characterisation into primary and secondary characterisation, a middle ground is proposed. At the primary stage of characterisation, the lex fori applies; at the secondary stage of characterisation the lex causae will be applied to characterise the issue. If the issue is characterised as procedural, it will be governed by the lex fori, if characterised as substantial, it will be governed by the lex causae. LAW 3207 – Private International Law  6 The Incidental Question An incidental (or preliminary) question is one that arises in connection with the main question in a case, whereby the decision of that main question is dependent upon a resolution of the incidental question. So, for instance, where the main question may be that of succession, an incidental question may be the validity of the marriage of the person claiming as the widow. In order for an incidental question to arise there must be the following elements: - The main issue must be governed by a foreign law - There must be a subsidiary question involving a foreign element which has its own choice of law rule (this question capable of being raised separately) and, - The choice of law rule that applies to the subsidiary question should lead to a conclusion different from that which would have been reached had the law governing the main question been applied. This is best illustrated by way of example: Suppose a Greek national dies intestate, domiciled in Greece, leaving movables in England. The wife of the Greek national brings a suit in England claiming to be entitled to a share of the property. The English private international law rule would refer the distribution of this part of his estate to Greek law. Under Greek law, a wife is entitled to share in her husband's estate. A question arises in the proceedings as to whether the wife really was, as she claimed to be, the wife of the Greek national. She had married the deceased in England in a civil ceremony. English private international law rules (the law of the forum) designates the law of the place of the marriage (lex loci celebrationis) as the law determining the formal validity of the marriage. By English law, the marriage was valid as it was done in accordance with the laws of England (the civil ceremony). However, by Greek private international law rules (the law of the deceased's domicile) the validity of the marriage is determined by the law of the person's nationality. Since the claimant was Greek and since a priest was not present at the ceremony, as required by Greek law, her marriage was void under the Greek law. In this situation, the principal question is that of succession. The English private international law rule selects the law of the deceased person's domicile to determine succession. By that law, the wife is entitled to share. The incidental question, that is, the question which arises in the course of the proceedings, was that of the marital status of the claimant to the estate. Was she or was she not the wife of the deceased? LAW 3207 – Private International Law  7 By the law of the forum, England, this issue is determined by the lex loci celebrationis which upholds the status of the wife, while under the law governing the main question of succession (i.e. Greek law), the marriage is void because it does not comply with the requirements of the law of the claimant's nationality (Greece). Thus, there arises a conflict of the private international law rules of the two countries on the incidental question. The application of either law would lead to a different result. If English law is applied, the widow was lawfully married and therefore entitled to share in the property. If Greek law is applied, her marriage is null and void and her interest in the deceased property curtailed. Which law should a jurisdiction seized of such a case select, in order to answer the incidental question? Its own private international law rules (lex fori)? Or those of the legal system it has selected to govern the main question (lex causae). Three Main Approaches to the Incidental Question The law governing the main question (lex causae approach) Those in favour of the lex causae approach believe that the legal system governing the main question should also apply to the incidental question, as it is most closely connected to the particular case and because international harmony of decision is the paramount consideration in this regard. See Schwebel v Ungar, Lawrence v Lawrence. The lex fori approach Those who favour the lex fori approach emphasise the public policy of the forum and the internal coherence of the law of the forum. The nature of the individual case and the policy of the forum towards this. Contemporary common-law authors are of the opinion that there can be no general or prior solution to the problem of the incidental question and each case or category of cases must be considered in light of relevant policy objectives and practicalities of outcomes. LAW 3207 – Private International Law  8 READING LIST Characterisation Required Reading 1. Cheshire, North and Fawcett – Classification Reference Cases Anton v Bartolo (1891) Clunet 1171(The Maltese Marriage Case) Re Maldonado’s Estate De Nicols v Curlier AC 21 Odgen v Odgen P.46 Simonin v Mallac (1860) 2 Sw & Tr 67 Additional Reading 1. Joseph M. Cormack – Renvoi, Characterization, Localization and Preliminary Question in the Conflict of Laws 2. Robert Pascal – Characterization as an Approach to the Conflict of Laws 3. Ernest Lorenzen – Qualification, Classification, or Characterization Problem in the Conflict of Laws The Incidental Question Required Reading 1. Cheshire, North and Fawcett – The Incidental Question Reference Cases Lawrence v Lawrence Fam 106 Schwebel v Ungar (1963) 42 DLR (2d) 622 Loupetis v. Quemener (1932) Tribunal of Rabat (first instance) Clunet 992 Additional Reading 1. A.E Gotlieb – The Incidental Question Revisited: Theory and Practice in the Conflict of Laws 2. Joseph M. Cormack – Renvoi, Characterization, Localization and Preliminary Question in the Conflict of Laws LAW 3207 – Private International Law