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CHARACTERIZATION IN PRIVATE INTERNATIONAL LAW: CONCEPT, AND THEORIES

INTRODUCTION

In the words of Cheshire: “Private International Law, then, is that part of the law which comes into play when the issue before the courts affect some facts, events or transaction that is so closely connected with a foreign system of law as to necessitate recourse to that system.”[1]

Let us make it easy to understand the words of Cheshire. When a court is presented with a claim that has a foreign element, private international law, often known as conflict of laws, is the area of English law that is brought into play. By “foreign element,” we refer to a circumstance that necessitates the court’s use of, or examination of, a different legal system to properly resolve the case. International law is the law arising between different national (or municipal) systems of law.[2] There are three basic components to the foreign element. First, it must be stated what guidelines or circumstances the court must adhere to consider such a claim. The second step is to identify the specific municipal system of law that must be used to discover the parties’ rights in each category of case. Thirdly, knowing the situations in which:

(a) It is possible to consider a foreign ruling as being conclusive of the dispute in question, and,

(b) It is possible to take legal action to enforce the right given to the decree-holder of a foreign verdict.

A fusion of private municipal law and international law is known as private international law. When people or States act as individuals by entering any type of legal relationship, they are freely invoking private law.  Because there are numerous distinct municipal legal systems around the world, private international law was developed. 

The odd juxtaposition under private international law is problematic. The only international component of this nomenclature is the foreign component, despite the term “international” being a part of it. Private international law is merely a subdivision of local law, albeit having a global component. Private international law, an extension of domestic law, has a very broad reach and interacts with almost every area of law, no specific focus is placed on any particular domestic law. Identifying the legal issue under a certain statutory head is one of the first steps that the court must take in any conflict of law matter. This process of identifying and categorising is called characterization (also recognised as a qualification by French writers as well as classification by English writers).

CHARACTERIZATION

Characterization refers to the practice of placing a fact-based situation before the adjudicating authority in the proper legal category to determine the applicable legal rule or rules. Characterization offers the relevant guideline for choosing the law when numerous possibly applicable laws might result in a different result. Characterization controls how a conflict of laws is resolved, which brings about its fundamental relevance in private international law. By determining, for example, that a person’s status and ability are governed by their national laws, that contracts are governed by the law that the parties to the agreement have selected and that property is subject to the lex rei sitae, private international law establishes “connecting categories.” Therefore, before choosing the appropriate law, a court must first classify the specific conduct into the appropriate legal category. This is necessary because sometimes a court must decide which law applies to a factual scenario.

Theories of Characterization

There are four theories of characterization as stated below:

  1. Characterization based on Lex Fori or The Lex Fori theory.
  2. Characterization based on Lex Cause or The Lex Causae Theory.
  3. The Two-Fold Characterization Theory or The Dual Theory of LexFori or LexCausae
  4. Characterization based on Comparative Law and Analytical Jurisprudence
  5. The Autonomous Theory.
  • Characterization based on Lex Fori or The Lex Fori theory.

The idea of Lex Fori was initially suggested in the 1890s by German and French authors Kahn and Bartin. The English courts have adopted and employed this well-acknowledged concept. According to the theory, a specific issue should be categorised to comply with the relevant domestic laws as well as the international norms governing the matter in conjunction with the domestic law that is the closest to both sets of laws.

Characterization issues can be addressed using the law of the forum, often known as lex fori theory. The lawful dispute is governed by the idea of characterisation. The idea of characterisation permits a court to choose which law will apply in a specific circumstance. If the issue is not settled, it will be challenging to apply the correct conflict of law rule.

When domestic factors are present, the tribunal will rely on local laws; but, when foreign considerations, such as domicile, are present, the court must consider three main factors:

  • If the tribunal in question is qualified to hear the case.
  • The grouping of the issues
  • The legislation to be implemented in these situations is a question of decision.

There are two significant exceptions to the lex fori-based norm of characterization:

  • Lex Situs (Law governing both moveable and immovable properties).
  • Lex Loci Contractus (Law governing in circumstances of a contract via correspondence).

The premise of these exceptions is that this law will best enhance the security of real estate and contract transactions.

  • Characterization based on Lex Cause or The Lex Causae Theory.

The law or laws selected by the forum court from among the pertinent legal systems to reach its decision in an international or inter-jurisdictional dispute are known as lex causae. In private international law, the system of law (usually foreign) applies to the case in dispute, as opposed to the lex fori.

In contrast to the Lex Fori thesis, Despagnet and Martin Wold put out the Lex Causae thesis. According to Wold, any legal regulation derives its classification from the legal framework to which it belongs. French legal rules are divided into categories. similar to other laws, including Indian law. The French categorization must be taken into account by an English Court when determining whether the French Rules are applicable.

Critiquing the theory, “If the law which is finally to regulate the matter (i.e., the lex cause) depends upon classification how can a classification be made according to that law?”

Wolff argues, “In my opinion, the criticism does not hold good, but is based merely on the peculiar way in which conflict rules are framed.” To give examples: ‘The effect of marriage on the property of spouses is determined by the legislation of their matrimonial residence’.

  • The theory of Two-Fold Characterization or The Dual Theory of Lex Fori or Lex Causae

According to the Two-Fold theory of characterisation, characterisation is essentially worked out by splitting the characterization process into primary characterization and secondary characterization.

(i) Lex fori Characterization for the primary.

(ii) Lex causae Characterization for the secondary.

The advocate of this theory recognises two exceptions to the usual rule that the lex fori should apply to primary characterization. There are two exceptions to this rule: (a) the lex situs should decide whether anything is moveable or immovable, and (b) the forum should use the common characterisation of any two potentially relevant foreign laws.

As Robertson puts it, Applying and defining the appropriate law is the second characteristic. The distinction between the main and secondary characterizations, in Cheshire’s opinion, is that the former comes first and the latter comes second. According to this idea, the lex causae governs secondary characterisation. The lex fori, however, governs any conflicts between procedural norms. The lex causae should be used to determine whether a matter is procedural or not at the secondary stage of characterization. However, just as with primary characterization, it is not necessary to follow domestic characterization in this instance; instead, private international law or classification should be used.[3] According to Dicey, the main issue with this idea is that it is not apparent how to distinguish between the primary and secondary characters.[4]

  • Characterization based on Comparative Law and Analytical Jurisprudence

Rabel and Beckett proposed the idea in their hypothesis. They argue that analytical jurisprudence built on an examination of laws in contrast should govern characterization. Starting from the premise that “rules of private international law are rules to enable judges to decide questions as between different systems of international law either between his internal law and a given foreign law or between two foreign systems of law” and that these rules “if they are to perform the function for which they are designed, must be such, and must be applied in such a manner, to render them suitable for appreciating the character of the other systems of international law.”[5] Thus, according to Beckett, characterisation must be grounded in analytical jurisprudence.

  • The Autonomous Theory

Wolff proposes the straightforward categorization of every legal norm following the legal system to which it belongs. His idea holds that the entire foreign legal system should be taken into consideration when the English Court classifies a foreign norm. The approval of the foreign categorization is always subject to the supreme public policy and morality of English law; nevertheless, there is little evidence to support this idea in court decisions.

CONCLUSION

Characterization involves several complex steps that can be made simpler by applying theories, but an elegant solution has not yet been found. Whether or not the question and any related questions should always be submitted to the lex causae can be considered to follow the lex for its selection of foreign law. If the issue is regarding the application, then the adjudicating authority should look at the precedents. In the case of Macmillan Inc. v. Bishopsgate Investment Trust plc[6], Auld LJ made the following comment about a case where the lex fori provided characterization: “However, classification of an issue and rule of law for this purpose, the underlying principle of which is to strive for comity between different legal systems, should not be constrained by particular notions or distinctions of the domestic law of the lex fori or that of the competing system of law, which may have no counterpart in other systems. Furthermore, the topic should not be too precisely specified lest it is subject to a specific lex fori rule that would not hold under another system.” As a result, Characterization should not be limited and should be decided according to the relevant information.

Author(s) Name: Jefrin Johny  (Sharda University)

References:

[1] Cheshire, Private International Law, p.5, (8th edition).

[2] Dr F.E. Noronha, Private International Law in India: adequacy of Principles in Comparison with Common Law and Civil Law Systems, p.33, (Universal Law Publishing Co. 2010).

[3] Robertson, A.H., Characterization in the Conflict of Laws, (University of Toronto Press, 4th Edition, 1996)

[4] Rule of Law <https://lscollege.ac.in> accessed on 9 June 2023

[5] Damir Banovic, About John Austin’s Analytical Jurisprudence: The Empirical-Rationalist Legal Positivism (Vol. 21, No.1, June 2021) <researchgate.net> accessed on 9 June 2023

[6] Macmillan Inc. v. Bishopsgate Investment Trust plc (1996) 1W.L.R. 387 [No3]