THEORIES OF CHARACTERISATION: A CHOICE OF LAW DILEMMA
TABLE OF CONTENTS
I. INTRODUCTION...............................................................................................................................1
II. LITERATURE REVIEW....................................................................................................................3
III. LIST OF CASES.............................................................................................................................4
IV. STATEMENT OF PROBLEM........................................................................................................4
V. OBJECTIVE........................................................................................................................................4
VI. HYPOTHESIS.................................................................................................................................4
VII. RESEARCH QUESTIONS.............................................................................................................4
VIII. CHARACTERISATION: ISSUES INVOLVED.............................................................................5
IX. CHARACTERIZATION: THE PROCESS.....................................................................................6
X. PROBLEMS ASSOCIATED WITH CHARACTERIZATION...........................................................7
XI. RULES OF RECOGNITION IN ORDER TO ERADICATE THE PROBLEMS ASSOCIATED
WITH CHARACTERIZATION................................................................................................................10
XII. EXCLUSION OF THE FOREIGN LAW......................................................................................11
XIII. APPROACH IN TODAY’S TIME................................................................................................11
XIV. CONCLUSION AND SUGGESTIONS....................................................................................12
XV. BIBLIOGRAPHY.........................................................................................................................12
1
I. INTRODUCTION
Municipal law of a state that guides its courts and other administrative agencies, when
challenged with any discrepancies in law including an external component to find out if a foreign
law should be applied or not, is known as Conflict of laws. Conflict of Laws is also known as
Private International law. It is primarily concerned with these of the following questions: -
1. Choice of Jurisdiction
2. Choice of Law
3. Recognition and enforcement of foreign judgment.
Mostly, the issue in the case of conflict of laws are usually tried to be dealt with foreign
component but it also has an internal possibility. Though, in a case of conflict of law, the court
should first of all categorize the question regarding the legal issue under a specific heading. Such
a process is called characterization which has been termed as classification and qualification by
many English and French writers respectively.1
The essence of Characterization under private international law is obtained from the assumption
that solution in the case of conflict of law is controlled by Characterization. “Connecting
Categories” is established by Private International law by determining, for example, the person
of a state is ruled by the law of that particular state, the contracts entered by two persons of
different states are governed by laws that has been mutually decided in the contract. Whereas,
governance of property is executed by lex rei sitae i.e. the legalities involved in a real place of
the property.2
The characterization process is an inherent process present in all factors associated with rationale
behind legality and judicial determinants and therefore it is not alien to private international law.
Though, characterization conflict is a unique process that arises in cases where similar
classification is not offered by the legal orders. Different countries differ on the meaning of
1
Currie, Brainerd. (1964). Selected Essays on the conflict of laws, 62 MICHIGAN L.R, p. 180.
2
Veronique Allarousse, A Comparative Approach to the Conflict of Characterization in Private International Law,
23 Case W. Res. J. Int'l L479 (1991) , SCHOLARLY COMMONS, (Aug, 26, 2020, 1:42 AM),
https://scholarlycommons.law.case.edu/jil/vol23/iss3/5.
2
‘immovable’, ‘movable’ property, ‘form’, ‘substance’ and many other such terms on which
application of foreign law is dependent.3
The court and the nation abroad may have the similar issue, also the connecting factor may be
interpreted by them similarly, but they may not be on the similar page on the output because they
categorize the question in several other manners. For example, in the case of Ashiru v Benson &
Anothers4 the plaintiff being met with an accident which occurred in western Nigeria
successfully brought an action against the defendant under the Federal Fatal Accident in High
court of Lagos. The defendant tried to take the defense that an action cannot be brought against
him under laws of Lagos when the accident took place in Western Nigeria. The action of the
Plaintiff succeeded in court. The court in this case rejected the criminal consequences of the
issue concerned and matter was characterized as a tort and went on to held that the conflict of
law has to be paralleled in terms of both, the foreign cause and the category of domestic laws.
II. LITERATURE REVIEW
Cheshire, North & Fawcett: Private International Law
The book has helped the researcher in understanding the key aspects associated with the concept
of characterization. The book also draws a clear analysis of the problems rooted with
characterization as a concept. Since Conflict of Laws is an ever changing concept, this book
ensures that it incorporates within itself, all the necessary changes in the stream of private
international law and specifically in the key aspects of characterization. The book also becomes
handy in understanding the various practicalities associated with characterization as a concept.
Dr. S.R. Myneni, Private International Law
The book offers a plethora of aspects that has helped the researcher in the conduction of
preliminary research regarding the aspects of characterization. The book gives a comprehensive
analysis of the idea of Choice of Law Dilemma associated with characterization. The book also
3
Id.
4
Ashiru v. Benson & Anr., 6 Nigerian L.J. 103 (1972).
3
discusses the process of characterization, the problems with it and how is it applicable in the
modern world. Several Judgements related to all the aspects of private international of law has
also been given in the book to ensure a substantive and detailed analysis of the concept.
III. LIST OF CASES
1. Ashiru v. Benson & Anr., 6 Nigerian L.J. 103 (1972)
2. Ogden v. Ogden, 44 L. Q. Rev. 217 (1928)
3. Anton v. Bartolo,. (1891) Clunet 1171)
4. Sommer v. Dame Mayer, Civ.,44 R.C.D.I.P. 133 (1955)
5. Estate of Maldonado Decd. State of Spain v. Treasury Solicitor, 13 Sch. L. Rev. 44 (1955)
6. Babcock v. Jackson, 240 N.E.2d 279 (N.Y. 1963)
7. MacMillan v Bishopsgate Investment Trust plc, [1996] WLR 387
IV. STATEMENT OF PROBLEM
The researcher draws an analysis of the key aspects of characterization and comprehends the
problems associated with it. Also, the researcher has tried to opine as to how the concept of
characterization can be associated with the issues and conflicts of the modern world. The
researcher has also tried to outline the problems with the help of relevant case laws. The
researcher also has attempted to state the process of characterization.
V. OBJECTIVE
The objective of this paper is to incorporate every possible intricacy associated with several
theories of characterization as well as critically evaluate the problems associated with it. The
researcher also has the objective of testing the practicality of the concept.
VI. HYPOTHESIS
The researcher is of the belief that the entire area of Conflict of Laws is a dynamic are and so is
characterization as well. The concept is less practical and lacks rationale when brought into
actual use. Moreover, the additional factors associated with it are also a driving force in the
practical execution of the legal concept.
4
VII. RESEARCH QUESTIONS
1. What are the various intricacies associated with the concept of Characterization?
2. What are the problems of Characterization?
3. How is the rule of recognition important for the eradication of problems associated
with Characterization?
4. How practical can the concept of characterization be in the modern world?
VIII. CHARACTERISATION: ISSUES INVOLVED
Characterization denotes the issue of allocation raised up by actual condition in front of the court
of law to the accurate legal category and its objective in order to disclose the pertinent guidelines
for the law getting chosen. Procedure of connecting a legal category with a factual scene is dealt
with. In such cases where the outcome differs, it would be achieved dependent on what kind of
numerous possible pertinent laws are applicable; characterization discloses the pertinent rule of
the law getting chosen. Therefore, unless the judicial authority has discovered the actual basis i.e.
characterization of the plaintiff’s right, a rational pronouncement cannot be made by him, as he
is unaware of the choice of law to be applied. This matter of characterization has continued to be
observed by several continental as well as many English and American writers as a problem
essential to the conflicts associated with law.5
In most of the cases, it is imperative to be stated that facts can be included under a specific
category of law that a specific rule of conflict can be availed and the factor of connection
specified by the conflict is unmistakable.
Actually, the categorization might be as apparent as it can be assumed to be automatic. For
instance, the lawyer or the court would not wait for the classification process for instances like a
seller getting alleged by the buyer that goo bought by him does not work as it was to work
supposedly and hence a contractual discrepancy arises for which they will turn towards the law
of contract for a proper solution. In case where the complainant is the user of the product and not
its buyer then either the initial characterization has to be changed or the entire situation is looked
upon like a tort or a subject of actions of authority or statutes. Therefore, sometimes
characterization is not apparent, even if the domestic and foreign law are similar and they are
5
Law Teacher, Characterization of Applicable Laws, LAW TEACHER ( Aug, 28, 2020, 2:34 AM),
https://www.lawteacher.net/free-law-essays/international-law/characterization-of-applicable-laws-international-law-
essay.php?vref=1.
5
interpreting the connecting factor in a similar way, then also they might end up getting different
outcomes since the characterization is done by them in other manner. For instance, the domestic
law may call a question as that of succession whereas the law abroad may call it a question of
property associated with matrimonial notions.
In the case of Ogden v Ogden6, a French man who was 21 years of age married without his
parent’s consent which is essential as per the French Law, with an English woman in England.
Later both the conflicting rules agreed that such formalities in marriage are administered by the
Lex Loci Celebration i.e. English law and according to the French law the man should be
competent to marry.
A typical issue of characterization appeared in front of the court of appeal in Algiers in Anton v
Bartola.7 In this case at the time of marriage husband and wife were having domicile of Malta.
Afterwards they left Malta and resided in France, the spouse later on bought a property there.
After he succumbed the wife took that land. The rules of choice of law of French and Maltese
government were similar that is the succession of immovable property had their governance by
Lex Situs whereas property with matrimonial rights had their governance by Lex Domicili of the
case of marriage. However, law in France, classified it as a question of succession while Maltese
law classified it as property involving matrimonial rights. Laws of Malta were applicable as per
the court.
IX. CHARACTERIZATION: THE PROCESS
The pleadings of the parties have to be analyzed by courts and assigning each constituent
element to the most suitable category has to be done by them as well. Several categories of
procedure, contract, nullity, etc have been allotted to different rules of any given system of law.
Several choices in law are present for any given category. Therefore, for instance, several
questions over the person’s status, standing before the court, viz adolescence or adulthood, born
out of legitimacy or illegitimacy etc. will be administered by the personal law of the person i.e.
the law of nationality or habitual resident if he is a residence of a state governed by civil law, or
the domicile law of which he is a resident of a common law state.
Procedural or substantive characterization of law is essential, but such ingredient of the process
can be harmed by the court count to exploit the usage of the laws of locality.
6
Ogden v. Ogden, 44 L. Q. Rev. 217 (1928).
7
Anton v. Bartolo,. (1891) Clunet 1171).
6
However, generally the process of characterization is not governed by science absolutely. It’s
always an issue of being interpreted. For instance, if A who has citizenship of Arcadia and he
before dying made a local will to transfer the property situated in Mongolia in C’s name who is a
resident of Bethpage. Now one might be of the opinion that the rights of C are governed by the
Arcadian will. Similarly, the right of succession of the title might be a feature under
Bethphagean law of C’s status as the heir who has survived the most. It might be a matter for law
of Mongolia as all the matters of title to land must be adjusted by the law that is applicable where
the land is located. Therefore, absolutely distinct judgments might result depending upon how
the domestic court characterizes the action. In order to give solution to this problem, the
proposition of Savigny that it was always essential for the judicial authority to find out the
connecting factor present in the particular legal system. If courts of every country adopted the
international law then it would remove the forum shopping8 by developing the same law choice
irrespective of institution of the case. But such a solution given by him is yet to yield the desired
result.9
Forum Shopping is still a major issue and hasn’t been solved by the legislators or the judges as
they are unable to come on the same page over the issue of characterization since they are
developing classifications that instead of reducing the international differences are extending it.
Judges have made many public policy exceptions in order to justify their decision that they have
made so as to avoid apparent unjust results.10
X. PROBLEMS ASSOCIATED WITH CHARACTERIZATION
i. Firstly, it is to determine if the question is automatically under Renvoi 11 doctrine or
that of judicial category.
ii. Secondly, the issue arises in the interpreting the factor of connection. Different
country has a different meaning of connecting factor. For example, the essentials that
are required for constituting domicile in India may not be same in England.
8
1 I.O AGBEDE THEMES ON CONFLICT OF LAWS,( Ibadan : Shaneson C.I. Limited , 1st ed. , 1989).
9
Adesoye Ibukunoluwa & Ors., The Concept Of Characterisation And The Problems Associated With
Qualification/Classification, BLOGSPOT (Aug, 28, 2020, 5:34 AM), http://legalrescue.blogspot.com/2013/01/the-
concept-of-characterisation-and_9.html#:~:text=Characterization%20refers%20to%20the%20allocation,to%20a
%20proper%20legal%20category.
10
Supra Note 8.
11
Sommer v. Dame Mayer, Civ.,44 R.C.D.I.P. 133 (1955).
7
iii. Thirdly, characterisation itself creates a problem in identification of the fact as to
which department the law belongs within which a specific question of law falls so as
to determination of the rule of law that can be applied.
On the classification of a legal issue the Indian law and a foreign law embraces an opposite view.
For instance, the law for the movable property of the person who has died may be in consonance
with the law of succession in India but it might relate to administration of estates in some other
country.
Although various kinds of settlement solutions have been promoted, but the major solutions that
came out is characterization by the law of the court and by law of the cause. Also, the
jurisprudence of analogies and laws that can be compared through appropriate approach is
substantiated.
The Lex Fori (Law Of The Forum) being a medium of Characterization
Many authors believed that characterization like this shall have the authority of the law involved
in the court, where the adjudicating authority is dealing with the scenario in hand and
characterizing the Lex Fori i.e. domestic law and Lex Causae and in the end applying the lex fori
which is nearest of being similar to that of lex causae. Writers believed that characterization
should be done according to the law and not according to the issues. They proclaim that the court
should apply those domestic laws that are nearest equivalent if not equivalent to the foreign
law.12
In the case of Ogden v. Ogden13 the court gave the argument in favor of characterizing by the
Lex fori that if foreign law will be applied then domestic law will lose its power and control over
its own issues. However, Lex fori put forward the following problems,
However, many problems are associated with LEX FORI,
A. In finding an analogy between domestic law and the law abroad, it can have the same equation
as to being engaged in a mechanical jurisprudence that can be objected, which might result in the
misrepresentation of foreign law and application of it in a case where it wasn’t required to be
applied by the court. Later it might result in the situation where the provisions that are applied by
the court is not both, the domestic and the foreign law.
12
Walter Wheeler Cook, Characterization in Conflict of Laws, 51 Yale L.J, 191-212, (1941).
13
Supra Note 6.
8
B. A possible solution cannot be given for those scenarios where there is no nearest equivalent
domestic law to that of foreign law is available.
Characterization By The Lex Causae (Law Governingthe Question)
This lays down that wherever a case comes before a judge then in order to govern the question
whether a foreign law should be applied by him. According to the authors like Wolff, Despagent
in order to govern characterization appropriate foreign law must be used.14 Wolff is of the view
that legal system to which a legal rule belonged takes its own character. 15 In the Estate of
Maldonado Decd. State of Spain v. Treasury Solicitor16 the English court of appeal had to
determine whether the claim of government of Spain over the movable property of intestate of
Spain was a right of succession in which the property was to be transferred to Spanish
government. The court held that the matter will be dealt with Spanish law and hence the property
was given to the Spanish government.
However, following problems are visible because of this view;
A. It’s a valid to state that characterization process is governed by the foreign law before the
characterization process leads to the foreign law getting selected.
B. In instances where more than one foreign law is applicable, which law will be applicable
and that same shall form the basis of the court which is adoption of the characterisation of
one over the other.17
Analytical Jurisprudence as a medium of Characterization
Autors like Rabel trust that rules of analytical jurisprudence and comparative law should govern
characterization i.e. it is the duty of the judge in order to draw a comparison of the law of the
countries associated, the scope of law should be used and select one which will dispense more
justly.18 Favorable argument for such a scenario is that judicial system in cases of conflict must
dwell more into aspects abroad and less limited than in cases involving domestic laws.
Mentioned below, are the arguments in conflict with this approach,
14
59 M. WOLFF, PRIVATE INTERNATIONAL LAW, 146-47 (2d ed. 1950).
15
Id. at 261-62.
16
Estate of Maldonado Decd. State of Spain v. Treasury Solicitor, 13 Sch. L. Rev. 44 (1955).
17
PIPPA ROGERSON, CONFLICT OF LAWS, (4th ed. Cambridge University Press, 2013)
18
Rabel, Leproble'me de la qualification, R.C.D.I.P. 1933.10.
9
1. Analytical jurisprudence and comparative aspects of law have principles that have universal
application are very few in number. According to Kahn-Freund preached that agreements abroad
regarding the analytical concept are a utopian concept.
2. Comparative aspects of law might disclose discrepancies between domestic aspects of law; it is
barely proficient of determining them. For instances, comparative law may disclose that capacity
to marry may get affected sometimes by the parental consent to marry. But how to determine as
to how these matters can be characterized. Though, these approaches cannot confine solving of
characterization problems. These approaches are substitute approach laid down by many
scholars.19
XI. RULES OF RECOGNITION IN ORDER TO ERADICATE THE PROBLEMS
ASSOCIATED WITH CHARACTERIZATION
The issue regarding characterisation can be resolved with the development of comprehensive
rules on recognition of acts or documents of other countries, by the legislator. For instance,
Estonian laws of succession have a general contradiction of law on succession, and based on the
same, state presidential law of the last residence of the dead generally is applicable to
succession.20
Similarly, as per the law, a certificate of succession organized in a state abroad is known in
Estonia if the process for the preparing and effectuating legal aspects thereof are apparently
analogous to the legal aspects of Estonian law for certificates of succession. Therefore, a
fascinating answer is attained if the legislature of Nigeria can accept this model related to
succession as presented by Estonia. However, by this process, the court at Nigeria might seem to
avoid alternative to the rules creating conflict, it is still mandatory to bring into effect, contrast
between the substantive law of Nigeria and the laws abroad that are pertinent in order to assess
whether a property is inheritable for a person.21
Though, the alternative to acknowledgement and implementation of documents from abroad does
not necessarily answer the problem associated with the aspects of characterization since
frequently such option is not possible, if a pertinent document or judgment is inexistent.
19
1 A. DICEY & J. MORRIS, THE CONFLICT OF LAWS, 25 (7th ed. 1973).
20
1CHESHIRE, PRIVATE INTERNATIONAL LAW, 24-45 (2 ed. 1938).
21
Adesoye Ibukunoluwa & Ors., The Concept Of Characterisation And The Problems Associated With
Qualification/Classification, BLOGSPOT (Aug, 28, 2020, 5:34 AM), http://legalrescue.blogspot.com/2013/01/the-
concept-of-characterisation-and_9.html#:~:text=Characterization%20refers%20to%20the%20allocation,to%20a
%20proper%20legal%20category.
10
XII. EXCLUSION OF THE FOREIGN LAW
Due to the mechanical and inflexible nature of early system of connecting factors, the outcome
could go against the court’s view of justice. For instance, the court needed the application of Lex
Loci DelicitCommisi rule because of the development of motor car, and the categorization of the
case as torts.
The court of France’s persistence on this connection often restricted relief for citizens of France
injured in areas that lacked established law for getting the victims adequately compensated. In
the case of Babcock v. Jackson22 the appellate court of NY unrestricted the Lex Loci Delicti rule
totally. Most jurisdictions were not so fundamental, desiring to recall the context of categories
and rules of choice of law but spare public policy figuratively as the escaping device.
This goes on to mean that the states will bar or restrict “foreign” law which goes against the
envisaged principles of forum’s legal system of the state. For example, it would be considered
inappropriate to implement a law that has defined a person being captive or a slave to another
e.g. exploiting a person sexually.
Though, in situations that involve unproven injustice, this rule has gained criticisms as
vulnerable to abuse, for characterization of almost any statute or rule as being offensive by that
court as the same may relate to the public policy of their state.
XIII. APPROACH IN TODAY’S TIME
Modern approach has adopted a solution by allowing the growth of judicial discretion within
both characterization system and the law getting chosen rule, since they were functioning in an
obstinate manner. Hence, legal systems have adopted a Proper law Approach which deals with
the implementation of the aspects having connection close with the causes of action.
Theoretically, such tangibility will protect a global viewpoint and multifaceted tactic by the
jurisdictions of courts that have accepted this method, the outcomes seem encouraging.
22
Babcock v. Jackson, 240 N.E.2d 279 (N.Y. 1963).
11
XIV. CONCLUSION AND SUGGESTIONS
Apart from lex situs that governs the characterisation of property, there isn’t any constant theory
of characterisation. In the case of Macmillan Inc v. Bishopsgate Investment Trust Plc 23 a case
which was characterized by the law of the court, the court held
“Though an issue being classified and rule of law for the aforementioned purpose as
the integral principle of the same is to advance towards comity between different legal systems,
must not be caged by several aspects or distinctions of the domestic law of the LEX FORI or that
of the competing system of law, which may have nothing to bank upon in other principles or
laws. The issue also must not be defined in a narrow manner, so that it attracts a particular rule
under the LEX FORI which may not be applicable under the other system.”
From how it looks, this may be considered an invite for international attention for LEX FORI,
but the same shall be applied to other aspects as well. Facts of an issue must be the driving force
of several aspects of Characterization as well. Since Conflicts pertaining to law is a dynamic
concept, issues are supposedly going to arise on a daily basis. One must use ‘characterization’ in
a proper and rational manner in order to deal with different set of cases with correct choice of
law. Reconciliation between different jurisdictions can only be sought to achieve if the choice of
law is rational enough. Proper understanding of the aspects of characterization is necessary in
order to tackle additional factors which make the dilemma even more complex. The additional
factors like incidental questions and renvoi can be tackled in the aforementioned manner in order
to attain the focal point of the integral aspects of characterization.
Lastly, Courts when are extremely inclined, tend to use wise discretionary powers while dealing
with issues of characterization. Mostly, discretion is done to shift the boundaries by appropriate
courts. This proves the fluid nature of the aforementioned issues and the ineffectuality associated
with this basis of application of laws.
XV. BIBLIOGRAPHY
1. 1 A. DICEY & J. MORRIS, THE CONFLICT OF LAWS, 25 (7th ed. 1973).
23
MacMillan v Bishopsgate Investment Trust plc, [1996] WLR 387.
12
2. 1 I.O AGBEDE THEMES ON CONFLICT OF LAWS,( Ibadan : Shaneson C.I. Limited , 1st
ed. , 1989).
3. 1CHESHIRE, PRIVATE INTERNATIONAL LAW, 24-45 (2 ed. 1938).
4. 59 M. WOLFF, PRIVATE INTERNATIONAL LAW, 146-47 (2d ed. 1950).
5. Adesoye Ibukunoluwa & Ors., The Concept Of Characterisation And The Problems
Associated With Qualification/Classification, BLOGSPOT (Aug, 28, 2020, 5:34 AM),
http://legalrescue.blogspot.com/2013/01/the-concept-of-characterisation-
and_9.html#:~:text=Characterization%20refers%20to%20the%20allocation,to%20a
%20proper%20legal%20category.
6. Currie, Brainerd. (1964). Selected Essays on the conflict of laws, 62 MICHIGAN L.R
7. Law Teacher, Characterization of Applicable Laws, LAW TEACHER
https://www.lawteacher.net/free-law-essays/international-law/characterization-of-
applicable-laws-international-law-essay.php?vref=1.
8. PIPPA ROGERSON, CONFLICT OF LAWS , (4th ed. Cambridge University Press, 2013)
9. Rabel, Leproble'me de la qualification, R.C.D.I.P. 1933.10.
10. Veronique Allarousse, A Comparative Approach to the Conflict of Characterization
in Private International Law, 23 Case W. Res. J. Int'l L479 (1991) , SCHOLARLY
COMMONS
11. Walter Wheeler Cook, Characterization in Conflict of Laws, 51 Yale L.J, 191-212,
(1941).
13
