Application of Law for Characterization
As discussed above,one of the basic problems that arise in the process of characterizing a dispute that involves foreign elements is the application of law,because under the law of different states,the same fact may fall within different judicial categories,and in some cases,the lex fori and some other potentially relevant law might hold diametrically opposed views on the correct classification of the same fact.For instance,where the question whether a will is revoked by marriage may be regarded by the forum as question of matrimonial law,but by the foreign legal system as a testamentary matter.
According to Cheshire and North,the basic approach to characterization is to give the question,or the issue,the meaning that it bears under the law of the forum; that is,that of the lex fori.We may for convenience call this the lex fori approach to characterization.Thus,by application of the principles of domestic law,a judge makes an analysis of the question before him,after determining its judicial nature in accordance with those principles,assigns it to a particular legal category,then,he can refer to a proper conflict of rule.12
The major justifications for the lex fori approach are as follows: first,as the relevant choice of law rules arise under the lex fori,it should determine the issues which will fall within such rules.To do otherwise,would result in the lex fori losing control over the application of its own conflict rules; second,it is inevitable that a judge cannot help but characterize a matter in accordance with the legal ideas of the lex fori,insofar as he has been trained by the legal education of his home state.13
The second approach is to approach the matter through the application of general principles of universal application.One argument in favor of this approach is that,since classification is required for a case containing a foreign element,it should not necessarily be identical with that which would be appropriate in a purely domestic case.This approach sounds good in theory but is difficult to put into practice.The authors of Cheshire and North dismiss this approach as being “scarcely practicable to do so whilst there are no commonly agreed general jurisprudential principles.”14
In addition to the above approaches,some scholars advocate others such as lex causae.15 However,characterization in accordance with the lex causae does not seem to be possible at this stage of legal reasoning as characterization of the legal nature of the question always precedes the determination of the lex causae.Before characterizing the legal nature of the question,it is impossible to know whether some foreign law or the lex fori is applicable.Furthermore,if lex causae characterized the question as belonging to a legal category unknown to the lex fori,the court could not apply to it any of its conflict of laws rules.
It has also been suggested that a distinction could be made between primary and secondary characterization: the lex fori should apply to primary characterization,which is the allocation of the issue to its correct legal category—and the lex causae to secondary characterization,which is the delimitation and application of the proper law once selected.16 However,this suggestion invites much criticism in its arbitrary distinction,and so far it has not been endorsed by judicial practice.(https://www.daowen.com)
Therefore,evaluating comprehensively,it is submitted that characterization with the lex fori appears to be logical and feasible for the court to take in order to determine the legal nature of the question,which is the only accepted position in the common law17 and most civil law systems.18
However,it should be emphasized that in dealing with private international law cases,court must not rigidly confine itself to concepts or categories of the lex fori.19 The lex fori will characterize in accordance with its rules in a liberal manner,not insisting that all its technical requirements are complied with.This method of characterization could be referred to as the “liberal” or “enlightened” lex fori.Therefore,under private international law,concepts such as “contract,” “tort,” “corporation” and “unjust enrichment” are to be given a liberal interpretation.20 In the words of one author:21
The various legal categories,into one of which the judge must decide that the question falls before he can select his conflict rule,must be wider than the categories of the internal law,because otherwise the judge in a conflicts question will be unable to make provisions for any rule or institution of foreign law which does not find its counterpart in his own internal law,and thus one of the reasons for the existence of the science of conflict of laws will be defeated.
One example will show how English judges have been prepared to solve the problem of classification under this “enlightened” lex fori approach.A husband and wife,French both by nationality and by domicile,were married in Paris without making an express contract as to their proprietary rights.Their property,both present and future,thus became subject by French law to the system of community of property.The husband died domiciled in England and left a will which disregarded his widow’s rights under this French doctrine of community.The widow took proceedings in England to recover her community share.22
The rule of English conflicts law is that the proprietary rights of a spouse to movables are governed primarily by any contract,express or implied,that the parties may have made before marriage.Failing a contract,the rights are determined by the matrimonial domicile of the parties.The English conflict rule for testamentary questions is the law of the domicile of deceased person.Thus the problem of classification was whether the right claimed by the widow was to be treated as contractual or testamentary,for only after that had been decided would it be possible to choose between the French law governing the contract and the English law governing testamentary questions.
It was clear that in the views of English internal law no contract had been made,but the House of Lords held that according to French law,a husband and wife are bound by an implied contract to adopt the system of community,despite the absence of an express agreement to that effect.Thus the court,by its readiness to recognize a foreign concept,widened the category of contracts as understood by English internal law.23