RESEARCH PROJECT ON

CLASSIFICATION A RULE OF LAW

Submitted to: Mr. PP Rao (Asst. Professor Conflict of Laws)

Researched & Authored By: Aeishwarya Jha Roll No. 307

CHANAKYA NATIONAL LAW UNIVERSITY

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RESEARCH METHODOLOGY This project is researched predominately from secondary sources such as Opinio Juris, Judicial Writings and case laws notifications. References have also been made to research papers published and scholarly articles on the concerned realm of law. This project is based on the doctrinal method of research. The segments are structured and written actively. The writing style is descriptive and analytical. The project has been done after a thorough research based upon intrinsic and extrinsic aspect of the assigned topic. The limitation of my project is that my topic being a very wide one, I may have missed upon certain issues which I certainly regret about.

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ACKNOWLEDGEMENT

The research on Classification a rule of law is a part of Conflict of Law Semester assignment. A humble gratitude is in order, for the subject faculty, Mr. Rao, for his pedagogic guidance. Grateful regards for the scholars whose work has been referred and are mentioned in the bibliography. This assignment is relating to emerging trends on the subject area of research.

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TABLE OF CONTENTS

RESEARCH METHODOLOGY ................................................................................................... 2 ACKNOWLEDGEMENT .............................................................................................................. 3 I. II. III. IV. V. VI. INTRODUCTION ............................................................................................................... 5 THE THEORY OF QUALIFICATIONS AND THE CONFLICT OF LAWS................... 7 CLASSIFICATION AS TO THE CAUSE OF ACTION ................................................... 9 CLASSIFICATION OF A RULE OF LAW ..................................................................... 11 THE QUALIFICATION, CLASSIFICATION, OR CHARACTERIZATION PROBLEM IN THE CONFLICT OF LAWS ....................................................................................... 14 CONCLUSIONS ............................................................................................................... 16

BIBLIOGRAPHY ......................................................................................................................... 17

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I.

INTRODUCTION

The rules of Private International Law, whether in relation to the choice of law or to jurisdiction, consist almost entirely of a series of short principles such as: "Procedure is governed by the lex fori"; "Succession to movables is governed by the personal law of the deceased at the time of his death, and to immovables by the lex rei sitae"; "A court of the country in which the parties are domiciled has jurisdiction to entertain proceedings for the dissolution of a marriage." Other rules depend upon whether the cause of action is in contract or in tort. All these rules involve the use of conceptions of analytical jurisprudence, viz. procedure, succession, movables, immovables, capacity, form, contract, tort, &c.

In every case which involves a question of Private International Law the court is called upon to decide whether a given state of facts, or a rule of law and the right resulting there from, falls into one or other of these conceptions or categories of analytical jurisprudence. It is this processinvolved in every case-which is described by the English word "classification ", and which in French legal literature is described by the word "qualification ".1

Private International Law is in a sense the antithesis of universal unification of law. Its raison d'dtre is the existence in different countries, and sometimes within the same country, of different systems of law. It arises because, international intercourse being as great as it is, all countries have found it impossible in the interests of good order and justice to adopt the position either of deciding all cases according to their own internal law exclusively, whatever the international elements involved, or of refusing to allow their courts to entertain any case which involves an international element. They have been forced, in the most obvious interests of justice, in order to deal with cases involving an international element, to evolve rules determining: (i) In what cases their own courts shall and shall not entertain proceedings; (ii) In what cases they will recognize the courts of a foreign country as having been competent;

Dean Falconbridge in an article in the Canadian Dominion Law Reports (1932, 4 D.L.R. 9) on "Conflicts of Laws as to Nullity and Divorce

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(iii) Which of the different systems of internal law shall be applied in order to ascertain the rights of the parties in different sets of circumstances?

The result is that where, under these rules, a foreign court has been held to be competent or a foreign law to be applicable, a state recognizes, and to a more limited degree enforces, in its own territory rights acquired under a foreign law.

In a conflict case, much depends on how the issue is classified or characterised. Is it an issue of breach of contract or the commission of a tort? This may be labelled as classification of the cause of action. Once this has been determined, the next stage is to ascertain the governing law which, as we have seen, depends on some connecting factors, such as the lex situs, the lex loci delicti, the lex domicilii, and so forth. These factors link the issue to a legal system. At this stage, a second type of classification has to be done in order to identify the legal characteristic of a particular rule. For instance, in English conflict of laws, capacity to marry is governed by the law of each partys ante-nuptial domicile, and formal validity of a marriage is governed by the law of the country where the marriage is celebrated. Is the issue of parental consent classified as a rule of capacity or formal validity? This question may arise in a different scenario; for instance, a contract between an English employer and a French employee made and to be performed in France. The applicable law to the contract is French. In an action brought in the English court for breach of this contract, the English court will apply French law to issues of formal and essential validity so long as these rules are rules of substance and not procedure. The latter is subject to English law. However, problems may arise as to whether a particular rule is to be classified as a rule of substance or procedure. This type of classification may be labelled as classification of a rule of law. Each of these types will be considered separately.

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II.

THE THEORY OF QUALIFICATIONS AND THE CONFLICT OF LAWS

The differences existing in the rules of the conflict of laws in the various countries has given rise to the question whether the rules of the forum should be interpreted as adopting the foreign law in its totality, including its rules of the conflict of laws, or whether they should be deemed to incorporate only the foreign internal law. This problem is that of renvoi.'2 A problem of a different character, though equally fundamental, may arise, even if the rules of the conflict of laws of the countries involved in a given case are alike, because of a difference in the meaning of the concepts used. "Nationality," "domicil," "the law of the place of contracting," "the law of the place of performance," and "the law of the place where the tort was committed" are all legal concepts which may be determined in more than one way. The countries differ also on the question of what constitutes immovable and what movable property, on the meaning of "capacity," "form," "substance," "procedure," and in their definition of various other terms upon which the application of the foreign law depends. The question thus presenting itself is what law is to determine the meaning of the above terms. The problem referred to has given the greatest concern to the continental writers and is generally discussed by them under the title of "theory of qualifications."3

General Theories:

Bartin: Of the various attempts to formulate a general theory for the solution of the problems above outlined Bartin's "theory of qualifications" was the first to attract general attention. This writer maintains that whenever the application of the internal law of the forum or that of another country depends upon the nature of a particular juridical relationship, it is the law of the forum which must decide what the nature of the relationship is.4 Buzzatti: Originally Buzzatti agreed with Bartin only to the extent of holding that the determination of domicil and perhaps certain other points of contact must be governed by the law
2

'See (1910) 10 Columbia Law Rev. 190, 327; (1918) 27 Yale Law Jour-nal, 509; (1919) 29 ibid. 214; (1918) 31 Harvard Law Rev. 523. 3 Lorenzen, Ernest G. "The Theory of Qualifications and the Conflict of Laws." Columbia Law Review 20.3 (1920): 247-282. 4 'Cavaglieri, E Diritto Commerciale, 1910, 50; 1 Lyon-Caen & Renault, Traite de droit commercial, (4th ed.) no. 183. "Closet 1897, 236-239; Reprint 14-17.

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of the forum. As regards the other problems he felt that the cases discussed by Bartin resulted not so much from a difference in the laws of the different countries as from an erroneous interpretation and application of such laws.5" Buzzatti has, however, modified his opinion since the time of the publication of his original article on the subject, so that his views coincide today more nearly with those expressed by Bartin."

Diana: Where the conflict in qualification is between the law of the forum and that of a foreign system Diena would agree with Bartin's conclusion. But where the only connection of the case with the law of the forum is the fact that suit is brought there Diena would not apply the qualification of the law of the forum whenever the foreign systems agree among themselves on the qualification of the legal transaction. In this case he would accept the common foreign qualification."

Kahn: Kahn dealt with most of the at a considerable time before Bartin advanced his theory of qualifications."6 Under the head of "Collisions in the Point of Contact" he included nationality, domicil, lox loci contractus, lox loci soleetionis, lox loci delicti, and the question of movable and immovable property. The other cases in which there is a difference in the qualification of juridical relations or institutions he discussed under the heading of "Latent Conflict of Laws." With respect to both classes of problems Kahn held that the law of the forum was alone competent to define the particular institution, relationship, or legal concept. He found it impossible, however, to apply this principle to the case of double nationality when the law of the forum is disinterested. In this case he would abandon the rule of nationality and substitute for it that of domicil."7

'The following writers agree with Bartin's general conclusion. Anzilotti, Rivista di diritto internazionale, 1914, 614; Cavaglieri, II Diritto Commerciale, 1910, 53; Fedozzi, II digesto internazionale. Successione, Vol. 22', 810; Venal, Foto italiano, 1904, 1, 761. "Clunet 1905, 1234. 6 'Kahn's view is adopted by Regelsberger. 1 Pandekten, 165. 7 Jhering's Jahrbucher, 76, 91, 99.

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III.

CLASSIFICATION AS TO THE CAUSE OF ACTION

Every legal system arranges its rules under different categories which must form the basis of a plaintiffs claim. These categories may be concerned with tort, contract, property, status, succession, etc. Before the English court can proceed to ascertain the lex causae, it has to determine the particular category into which the action falls. Does the action relate to the formal validity of a marriage, intestate succession to movables, or some other category? Given the standard categories operating in English law, the difficulty arises when some cases do not fit easily into any single one of them. An action may fall under more than one category. For example, an employee may be able to sue his employer either in contract or tort; or the action may not fall under any of them, such as the duty of a father to provide a dowry for his daughter under Greek law8. The crucial question, therefore, is how does the English court classify the cause of action? Is the classification made according to English internal law? It is obvious that the classification process is very crucial to the outcome of cases. However, case law does not show how this process is or should be conducted.

According to Cheshire and North (Private International Law, 12th edn, p 45): There can be little doubt that classification of the cause of action is in practice effected on the basis of the law of the forumBut, since the 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.9

It follows, therefore, that an English judge must not rigidly confine himself to the concepts or categories found in English internal law. It is worthy of note, however, that in the context of both the Brussels Convention on Jurisdiction and the Enforcement of Judgments 1968, and the Rome Convention on the Law Applicable to Contractual Obligations 1980, characterisation is unlikely to be referred to the legal system of any particular Contracting State, and is rather determined in a Community sense. Indeed, as shall be discussed in Chapter 3, whether a

8 9

(Phrantzes v Argenti (1960)) Cheshire and North (Private International Law, 12th edn, p 45)

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particular relationship amounts to a contract, or whether a specific act can be characterised as a tort, have been determined in a Community sense. For instance, in the under noted10 case an action was brought by an ultimate manufacturer of defective goods could not be classified as an action in contract for the purposes of jurisdiction under Art 5(1) of the Brussels Convention, despite the fact that it was regarded as such under French law, the law of the forum. The European Court of Justice (ECJ) expressed the view that a contractual relationship is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another.

10

Jacob Handte GmbH v Traitements Mcano-Chimiques des Surfaces (1992)

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IV.

CLASSIFICATION OF A RULE OF LAW

Once the legal category of a given case has been identified, the next stage is to apply the relevant choice of law rules in order to identify the lex causae. However, even at this stage, it may be necessary to classify a particular rule in order to determine whether it falls within one choice of law rule or another. This process can be better illustrated by examining two choices of law rules. For instance, capacity to marry is governed by the law of each partys ante-nuptial domicile (that is, the dual-domicile rule), and the formal validity of a marriage is governed by the law of the place where the marriage was celebrated. A problem of characterisation will arise if it is doubtful whether a certain rule of the domicile of one party is an issue of capacity, in which case the dualdomicile rule will apply, or whether it is an issue of formal validity, in which case it will not apply. Cheshire"11 and Falconbridge12' insist that the qualification of the French requirement must be according to the lex fori. Says Cheshire:

"In order to reach a decision, he [the English judge] examines the terms in which the rule is expressed, and he considers the construction put upon it by French expert witnesses, but he must ultimately determine its true nature by an application of the canons and principles recognized in England. If the rule reads as follows:

'The son who has not reached the age of 25 years cannot contract marriage, without the consent of his father and mother,' it would seem that it must be classed as affecting the capacity of the parties. . . . If an English judge applies French law merely because a French lawyer would regard the question sub judice as one of capacity, though in England it is regarded as one of formal validity, the result is the application of a legal system which in this country is considered inappropriate in the matter at hand.'",13 If the English rule that capacity to contract a marriage is
11 12

Private International Law (2nd ed. 1938) 36. Characterization in the Conflict of Laws (1937) 53 L. Q. RE,. 235, 249 (maintains that parental consent cannot be characterized in the abstract; that it may be a question of formality in one context and capacity in another). 13 Private International Law (2nd ed. 1938) 36, 37. In applying the foreign law selected by the forum, the court should take into consideration all relevant provisions, though they may appear in some other title or division of the Code.

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governed by the law of domicile is a general one, its characterization should be on the basis of the lex fori and not on that of the lex causae. The ultimate question is whether French or English law is to be applied to the matter of consent of parents. The answer to the question depends upon whether the consent of parents is to be characterized as appertaining to capacity or form. This question the law of the forum must decide for itself. If the English judge were to submit to the French view in this situation and regard a French provision as one of capacity when from the English point of view it is a matter of form, he would, as Cheshire points out in the above quotation, apply a law which is considered inappropriate by the law of the forum. He would apply French law because of the French characterization when he should apply English law according to the English characterization. A good illustration of this issue can be found in the under noted case. 14 A domiciled English woman married, in England, a domiciled Frenchman aged 19. By French law, a man of that age needed his parents consent to marry and, without such consent, the marriage was voidable. In fact, the husband had not obtained such consent. How did the court classify this issue of consent? Was it an issue of formal validity and, therefore, the rule would not be applicable, or was it an issue of capacity, in which case it would apply? The Court of Appeal classified it as a rule of formal validity and, therefore, declined to apply the dual-domicile rule, for the marriage had been celebrated in England. In this case, the issue involved a classification of a foreign rule, but what if it relates to an English rule? The under noted case15 of Leroux v Brown (1852) illustrates the process applied to an English rule. The case concerned an oral agreement made in France between a French employee and an English employer whereby the former was to work in France for a period longer than a year. This oral contract was governed by French law, under which the contract was formally and essentially valid. The employee brought an action in the English court to enforce the contract. The employer pleaded that the contract was unenforceable in England on the ground that the then English Statute of Frauds provided that no action shall lie upon a contract which was to last more than a year, unless the agreement was in writing. If this provision were to be regarded as a rule of

14 15

Ogden v Ogden (1908). Leroux v Brown (1852)

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formal validity, then its application would be excluded, for the formal validity of the contract was governed by French law. However, the English court held it to be a rule of procedure and, therefore, it was applied as part of the lex fori. The justification given by the court was that the effect of the statute was only to prevent a party from bringing an action on a valid contract and not to make the contract void.

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V.

THE QUALIFICATION, CLASSIFICATION, OR CHARACTERIZATION PROBLEM IN THE CONFLICT OF LAWS

The, problem in the Conflict of Laws which today is known on the continent as the problem of "qualification" and in recent Anglo-American literature as that of "classification" or "characterization" was brought to the attention of students of the Conflict of Laws fifty years ago. In the very year of the founding of the Yale Law Journal, Franz Kahn published an article in Jhering's Jahrbicher16 in which he pointed out that even if the rules of the Conflict of Laws in the different countries were the same, identity of results in individual cases would not follow because of latent conflicts inherent in the different systems of law.

Bartin dealt with the same problem in 1897, under the title De l'impossibilitj d'arriver a la suppression difiniiive des conflits de lois, apparently unaware of the fact that Kahn had written on the subject before him. Bartin spoke of the problem as one of "qualification," and since that time the problem has been known on the continent by that name. 17 There is no agreement among the writers concerning the type of questions properly belonging to a discussion of the qualification problem. Some use the term in a very broad sense and others in a narrower sense. The following are the classes of cases:

(1) The first class is one in which the fact situation is characterized under the law of the forum in a way different from that in which it is characterized under the lex causae - the law of the state or country with which it is connected. It may be regarded by one law as presenting a question of contracts and by the other law as a question of torts or property, by one law as a question of matrimonial property and by the other law as a question of succession, by one law as a question of succession and by the other law as a question of administration. Because of these divergences in classification, different rules of the Conflict of Laws may become applicable. The problem is whether the qualification or

16 17

Kahn, Gesetzeskollisionen: Eim Beitrag zur Lehre des intcnationalkn Privatrechts (1891) 30. 24 Clunet 225. Beckett was the first to suggest that "classification" was linguistically a better term in English than "qualification.' The Question of Classification ("Qualification") in Private International Law (1934) 15 Bnr. Y. B. Ir. L. 46, n. 3.

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characterization is to be made on the basis of the law of the forum or on that of the foreign law.

(2) The second class of cases involves the qualification of the connecting factor. A choice-oflaw rule of the forum may determine legal relations by reference to the law of domicile, the law of the place of contracting, the law of the place of performance, or the law of the place where the tort is committed. The terms "domicile," "place of contracting," "place of performance," or "place of the wrong" are here connecting factors. The law of the forum and the foreign law involved may have the same connecting factors in their systems of the Conflict of Laws but different meanings may be attached to them. Here again the question is whether the meaning of these connecting factors should be determined in the light of the law of the forum or of the foreign law.

(3) A third class of cases arises after the applicable foreign law has been selected by the law of the forum. Here again the law of the forum and the foreign law may entertain different views as to whether a provision of the foreign law is to be regarded as substantive or procedural, a decision upon which the applicability of different laws may depend. How is this question to be determined? It should be noted that in each of the above classes of cases the choice of law depends upon the qualification problem. If the problem is answered on the basis of the law of the forum, one law becomes applicable; if it is answered on the basis of the lex causae, another law determines the solution of the case. By limiting this discussion to these three classes, it will be possible to deal with the subject of qualification without running over the entire field of the Conflict of Laws, and to give some sort of unity and cohesion to the treatment.

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VI.

CONCLUSIONS

We have arrived, then, at the following conclusions18:

(1) The question whether a situation is to be classified as one of contracts, torts, succession, matrimonial property, and the like, is necessarily to be determined by the law of the forum. The foreign institution need not conform strictly to the internal law of the forum; it should be sufficient if it falls within its analytical framework or within some special concept worked out for purposes of the Conflict of Laws.

(2) The same conclusion applies to the characterization of the connecting factor. However, to the extent that the law of the forum accepts the renvoi doctrine in the In re Aunesley sense, the characterization of the connecting factor by the foreign law would prevail.

(3) As the law of the forum 'is chosen in the above classes of cases for want of any other practicable rule, it should be abandoned whenever some other reasonable solution can be found. For that reason the question whether tangible property is movable or immovable should be determined on the basis of the law of the situs. Again, if the fact situation is exclusively connected with foreign states or countries, the law of the forum being interested solely as the place of trial, a common characterization placed upon it by the law of all the foreign states or countries involved should be accepted. To the extent that the law of the forum understands its Conflicts rules in the renvoi (In re Annesley) sense, the adoption of the characterization made by the foreign law would follow.

(4) The suggestion that the lex causae should determine all questions of characterization arising after the foreign law has been selected by the lex fori - the "secondary characterization" of Cheshire and Robertson - is not to be approved. As in the preceding cases, such questions of characterization should be resolved on the basis of the lex fori.

18

Lorenzen, Ernest G. "Qualification, Classification, or Characterization Problem in the Conflict of Laws, The." Yale LJ 50 (1940): 743.

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BIBLIOGRAPHY

1. Dean Falconbridge in an article in the Canadian Dominion Law Reports (1932, 4 D.L.R. 9) on "Conflicts of Laws as to Nullity and Divorce 2. Cheshire and North (Private International Law, 12th edn, p 45) 3. Private International Law (2nd ed. 1938) 36. 4. Characterization in the Conflict of Laws (1937) 53 L. Q. RE, 235. 5. Private International Law (2nd ed. 1938) 36, 37. 6. Kahn, Gesetzeskollisionen: Eim Beitrag zur Lehre des intcnationalkn Privatrechts (1891) 30. 7. Lorenzen, Ernest G. "Qualification, Classification, or Characterization Problem in the Conflict of Laws, The." Yale LJ 50 (1940): 743. 8. (1910) 10 Columbia Law Rev. 190, 327; (1918) 27 Yale Law Journal, 509; (1919) 29 ibid. 214; (1918) 31 Harvard Law Rev. 523. 9. Lorenzen, Ernest G. "The Theory of Qualifications and the Conflict of Laws."Columbia Law Review 20.3 (1920): 247-282. 10. 'Cavaglieri, E Diritto Commerciale, 1910, 50; 1 Lyon-Caen & Renault, Traite de droit commercial, (4th ed.) no. 183. "Closet 1897, 236-239; Reprint 14-17.

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