Characterisation (conflict)

In conflict of laws, characterisation is the second stage in the procedure to resolve a lawsuit involving a foreign law element. This process is described in English law as classification and as qualification in French law. In those cases where a different result would be achieved depending on which of several possibly relevant laws is applied, this stage of the process reveals the relevant rule for the choice of law but it is not necessarily a simple process (see the incidental question). The first stage is for the court to determine whether it has jurisdiction, where appropriate confronting the problem of forum shopping.

Characterisation is one of the key element in demarcating the choice of law and jurisdiction issues.Once the forum court has decided that it does have jurisdiction to hear the case, it then must characterise or classify the cause(s) of action. This is regarded as the most important and difficult problem in conflict of laws as trade and travel between states have become the norm and the effects of broken promises, defective goods, traffic accidents, and marital squabbles are no longer confined to the sovereign territory of one particular state or nation. But local laws are usually enacted to satisfy domestic interests by legislators who focus on keeping the support of their constituents rather than on harmonising their own laws to conform to international principles. This reflects a prevailing tension between legal unilateralism and multilateralism. Hence, every law has both a territorial and a personal application so it is applied by courts within the boundaries of the state yet, as an aspect of the social contract, it also claims to bind those individuals who owe the government allegiance, no matter where they may be.

Characterising by reference to the lex causae (the law identified in the choice of law stage of the conflict process as the one to be applied to determine the case) would be problematic. Although it may appear logical to allow the whole of the lex causae, including its characterisation rules, to apply, it actually produces a circular argument, i.e. the lex causae is to apply to the process of characterisation before the process of characterisation has led to the choice of the relevant lex causae. So the conflict rules of the lex fori (the domestic law of the court dealing with the case) are usually applied even though, in extreme cases, the application of only the substantive provisions of the foreign law by the forum court could produce a judgment that neither the lex causae nor the lex fori would normally have produced. Nevertheless, in Macmillan Inc. v Bishopsgate Investment Trust plc [1996] 1 ALL E R 585, the most recent English case, Auld LJ. accepted that, ". . .the proper approach is to look beyond the formulation of the claim and to identify according to the lex fori the true issue or issues thrown up by the claim and the defence".

...
Wikipedia