Exercises
1.Prepare answers to the following questions using paragraph form.
(1) In a conflict-of-law situation,what role does characterization play?
(2) What are the reasons leading to the conflict of characterizations?
(3) What are the major approaches to determining the applicable law for characterization?
(4) Under the Conflicts Act of 2010,what is the law applicable to characterization? How do you evaluate this article?
2.Multiple Choice
(1) A German couple lived in Beijing,China since 2008.In 2011,the husband died,and the wife petitioned the People’s Court of Haidian District for a judgment to declare all property that originally belonged to her husband shall now be her property.The issue of judging the claim of the wife is based on property relation between husband and wife,or succession between the spouses is called ( ) in private international law.
A.renvoi B.classification
C.the determination of applicable law D.preliminary issue
(2) Which of the following statements is true? ( )(https://www.daowen.com)
A.Characterization in a conflict-of-law situation is not different from that in a domestic case.
B.To determine a matter of substance or procedure is the process of classification.
C.Characterization is the issue that a court has to deal with after the applicable law has been selected.
D.Characterization occurs only in private international law cases.
3.Case Analysis
A widow died intestate and domiciled in Spain with no ascendant,descendant or collateral relatives.The English estate comprised securities of ￡26,000 deposited in a London Bank.The Republic of Spain brought proceedings in the Higher Court of London to obtain a grant of administration and to claim ownership of the monies.
The English choice of law rule held that intestate succession to movable property must be governed by Spanish law as the lex domicilii.The relevant provision of the Spanish Civil Code provided that “the state shall inherit.”
The problem that arose was whether the provision should be classified as the State taking as ultimus heres or by virtue of a jus regale.If the State were to take by virtue of a jus regale,then ownerless movable property in England would pass to the crown as bona vacantia.It was argued on behalf of the Crown that there could be no succession where there was no personal nexus with the deceased.This argument was rejected by Barnard J and the Court of Appeal,who ruled that,following the reception of expert evidence on Spanish law,it was for the lex domicilii to determine the correct classification of the provision contained in Article 956.Since Spanish law would classify the provision as relating to succession by ultimus heres,then those assets passed to the Spanish State.
In the decision by the Court of Appeal,which law is employed to classify the fact of the case? Do you agree with the decision?