Characterisation (law)
[citation needed] It is used to determine the correct choice of law rules based on the circumstances of the case, primarily relating to matters of property.The leading authorities in England and Wales are Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1996] WLR 387 and Raiffeisen Zentralbank Österreich AG v Five Star General Trading LLC [2001] EWCA Civ 68, [2001] QB 825.Once the forum court decides that it has jurisdiction to hear the case, it must characterise or classify the cause(s) of action, this relates to choice of law matters.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.The Rome Regulations determine choice of law rules in said matters by providing an allocative framework for characterisation.[citation needed] Nevertheless, there are several cases when characterisation is not made by the lex fori: The court is required to analyse the pleadings prepared by the parties and to assign each component element to the most appropriate juridical concept or category.The rules of any given system of law are arranged under different categories, addressing procedure, status, contract, tort, divorce, nullity etc.In those circumstances a choice of conflict rule may have to be made[...]This means that in England, the specific legal problem will be governed by the law of the connecting factors.The leading text of Dicey & Morris formulates the question, using the example of the constitution of a corporation in the following manner: [All matters concerning the constitution of a corporation(CATEGORY) are governed by the law of the [place of incorporation(CONNECTING FACTOR)]Thus, the category, which is determined by understanding the substantive question at hand, is used to identify a relevant connecting factor.For example, if A, who is a national of Arcadia, dies having made a valid local will and leaves land situated in Barsoom to C, who is domiciled in Catilage, how is the issue to be classified?Equally, the right to succeed to title might be an aspect of C's status as the oldest surviving male heir under Cartilagean law, the lex loci domicilii.He argued that it was always necessary for the court to find the "natural seat" or "centre of gravity" for the case by identifying the largest cluster of "connecting factors" to a particular legal system.If all courts adopted such an international outlook, he reasoned, that would eliminate forum shopping by producing the same choice of law no matter where the case began.Forum shopping remains a problem, and neither legislators nor judges have been able to agree on characterisation issues, producing classifications that extend rather than reduce international divergences.In an attempt to avoid obviously unjust results in particular cases, some judges have created a number of public policy exceptions to justify decisions "on the merits".[7] By contrast, the Rome II regulation covers non-contractual obligations, including Torts, delicts, and semi-delicts.The decision affirmed that the first stage of applying choice of law rules, particularly those in the European regime, must be determining the categorisation, or "classification"[9] of the disputes.[citation needed] For example, with the development of the motor car, the classification of the cause as tort required the application of the lex loci delicti commissi rule.In France, the Court of Cassation's insistence on the rule frequently barred or severely limited relief for French parties injured in states with no developed law for the compensation of such victims.Method Comparatively, in the US, the New York Court of Appeals set a national trend in Babcock v. Jackson, 240 N.E.2d 279 (N.Y. 1963), which abandoned the lex loci delicti rule completely.Most jurisdictions have not been so radical and preferred to retain the framework of categories and choice of law rules but left public policy in place, as an avoidance device.For example, it would be considered improper to give enforcement to a law that defined the status of a person as a slave or as in the possession of another, such as for the purposes of sexual exploitation.Currie focused on each state's substantive rules, rather than on a metaphorical test, for the seat of the legal relationships and assumed that governments are less interested in what happens within their territorial boundaries than in the well-being of their subjects.Since characterisation and the choice of law rules were operating inflexibly,[dubious – discuss] the solution has been to allow the growth of judicial discretion within both parts of the system.