The Need for Characterization
Where a dispute has a foreign element added to it,a natural question is to ask what law governs such a dispute.To answer this question,one must find the relevant choice of law rule,whose connecting factor will point to a particular system of law.For example,a claim relating to a contract is generally governed by the law chosen by the parties.[1]This general proposition is the choice of law rule,while “the law chosen by the parties” is the connecting factor.To arrive at the relevant conflict rule,and thus to the relevant connecting factor,presupposes that one has already characterized the matter into a particular judicial category.In the example cited,this would be as a contractual matter.
That is to say,in a conflict-of-law situation,a court must determine at the outset whether the problem presented to it for solution relates to torts,contracts,property,or some other field,or to a matter of substance or procedure,in order to refer to the appropriate law.In other words,the court must initially,whether consciously or not,go through the process of determining the nature of the problem; otherwise,the court will not know which choice of law rule to apply to the case.This process is generally called “characterization,” and sometimes “classification,” “qualification” or “interpretation.”[2]
In Macmillan Inc.v.Bishopsgate Investment Trust Plc (No.3),3 Staughton L.J.recognized the ascertainment of the proper law,or lex causae,as a three-step process,which,in the author’s opinion,may serve as a classic observation:
“First,it is necessary to characterize the issue that is before the court.Is it,for example,about the formal validity of marriage? Or intestate succession to movable property? Or interpretation of a contract? The second stage is to select the rule of conflict of laws which lays down a connecting factor for the issue in question.Thus,the formal validity of marriage is to be determined,for the most part,by the law of the place where it is celebrated ...Third,it is necessary to identify a system of law which is tied by the connecting factor found in stage two to the issue characterized in stage one.”
Thus,after determining it has the jurisdiction over a dispute involving foreign elements,the first step that a court should take is the process of characterization or classification.It determines which matters or issues are of such a nature,namely that they have a sufficient theoretical unity,as to warrant a single legal system applying to the determination of such an issue or matter.Thus,when faced with a claim that has a foreign element,the court must characterize the relevant matter or issue so as to be directed to the relevant choice of law rule or rules.The process of characterization is therefore an essential threshold question,separate to the actual choice of law stage.4
The following example will show how important the process of characterization is in a civil dispute that involves foreign elements.[3]Suppose Mr.P was a Chinese citizen.He took the flight of American Northwest Airline,flying from Beijing to New York in 2009.Unfortunately,while Mr.P was on board,he was injured as a result of the negligence of a crew member.After his return to Beijing,Mr.P.filed a suit against American Northwest Airline before a People’s Court.If you are requested to represent Mr.P as his counsel,how would you deal with his suit? Or to be more specific,what kind of claim or cause of action would you bring before the court? Breaching of contract,or tort? Why?(https://www.daowen.com)
In the author’s view,the process of legal reasoning for this case may be illustrated as follows:
First,it is quite apparent that Mr.P has alternative options,i.e.,he can either bring a contract claim or a tort claim.This is because there existed a contractual relationship between Mr.P and Northwest Airline under which the latter,the carrier,undertook the contractual obligation to carry Mr.P to the destination safely and punctually.However,the latter failed to fulfill its contractual obligations,which constituted breach as a consequence.Meanwhile,Mr.P is also entitled to damages under tort law,insofar as there was causation between his damage and the negligence of the defendant,i.e.,American Northwest Airline.Under such a circumstance,Mr.P has an option to choose one entitlement between the two,and generally speaking,he cannot claim the two entitlements simultaneously.[4]
Second,being the counsel of Mr.P,you have to reckon the potential judgment that Mr.P could obtain under the two entitlements respectively before you make a decision.In the first place,you may suppose Mr.P to allege that the defendant breached the contract.In such case,the governing law is the law designated by party autonomy,since both the Contract Law and the General Principles of Civil Law (GPCL) of China provide that “[T]he parties to a contract involving foreign interests may choose the law applicable to settlement of their contractual disputes.” 5 In the case at hand,the law chosen by the parties is the Montreal Convention,6 as both China and the United States are party members to this Convention,and the electronic air-ticket contains such an applicable law clause.Within such a setting,you should refer to the relevant articles of the Montreal Convention which will determine the substantive results that Mr.P would obtain.Second,you may suppose Mr.P to choose to claim entitlement under tort law and the court should then refer to its conflict rule on tort.According to the GPCL,the law of the place where an infringing act is committed shall apply in handling compensation claims for any damage caused by the act of tort,7 and in the present case,the place of delict is in an American airplane which is regarded as “fictional parts of American territory”; therefore,the American law,or to be more specific,Minnesota law would be applicable,since Northwest Airline is a Minnesota-based corporation.Under this circumstance,you have to refer to Minnesota law in order to predict the results that Mr.P would obtain under the tort claim.
Last,you have to compare the two potential results in order to make clear which one would probably be more favorable to Mr.P.Only at this stage can you make a decision to choose one specific cause of action for Mr.P to bring before the court.
The above process of reasoning demonstrates that the significance of characterization is paramount.The particular way a dispute is characterized can result in the consequential application of different sets of rules.Thus,a plaintiff may wish to characterize a dispute in a particular way so as to attract the application of a more advantageous choice of law rule which will ensure he obtains the most favorable substantive results.