In Conflict of Laws, characterisation is the second stage in the procedure to resolve a lawsuit involving a foreign law element. This process is described in English law as classification and as qualification in French law. In those cases where a different result would be achieved depending on which of several possibly relevant laws is applied, this stage of the process reveals the relevant rule for the choice of law. The first stage is for the court to determine whether it has jurisdiction. Private international law, international private law, or conflict of laws is that branch of public law regulating all lawsuits involving a foreign law element where a difference in result will occur depending on which laws are applied. ... A lawsuit is a civil action brought before a court in which the party commencing the action, the plaintiff, seeks a legal remedy. ... English law, the law of England and Wales (but not Scotland and Northern Ireland), also known generally as the common law (as opposed to civil law), was exported to Commonwealth countries while the British Empire was established and maintained, and persisted after the British withdrew or were expelled, to form... Choice of law is a concept within the field of the conflict of laws, relating to relationships between different nations, and in the United States between individual states. ... A court is an official, public forum which a public power establishes by lawful authority to adjudicate disputes, and to dispense civil, labour, administrative and criminal justice under the law. ... In law, jurisdiction refers to the aspect of a any unique legal authority as being localized within boundaries. ...

Discussion

Once the forum court has decided that it does have jurisdiction to hear the case, it then must characterise or classify the cause(s) of action. This is regarded as the most important and difficult problem in Conflict of Laws as interstate trade and travel have become the norm and 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. But local laws are usually enacted to satisfy domestic interests by legislators who focus on keeping the support of their constituents rather than on harmonising their own laws to conform to international principles. This reflects a prevaling tension between legal unilaterialism and multilateralism. Hence, every law has both a territorial and a personal application so it is applied by courts within the boundaries of the state yet, as an aspect of the social contract, it also claims to bind those individuals who owe the government allegiance no matter where they may be. For the purposes of Public International Law and Private International Law, a state is a defined group of people, living within defined territorial boundaries and subject, more or less, to an autonomous legal system exercising jurisdiction through properly constituted courts. ... Sovereignty is the exclusive right to exercise supreme authority over a geographic region, group of people, or oneself. ... For political policies of the same name see Bob Raes Social Contract (Ontario) and Harold Wilsons Social Contract (Britain) Social contract is a phrase used in philosophy, political science, and sociology to denote a real or hypothetical agreement within a state regarding the rights and responsibilities of the... Allegiance is the duty which some think a subject or a citizen owes to the state or to the sovereign of the state to which some think he belongs. ...

The process

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, etc. For each category, there is one or more choice of law rule(s). Hence, for example, all questions as to the status of a person before a court, viz. an infant or adult, legitimate, legitimated or illegitimate, married or not, mentally incapacitated or not, bankrupt or not, etc. will all be governed by the person's nationality (the lex patriae) or domicile (the lex domicilii) or citizenship depending on the forum law's choice of law rule. In the law, a pleading is one of the papers filed with a court in a civil action, such as a complaint, a demurrer, or an answer. ... A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. ... A contract is any legally-enforceable promise or set of promises made by one party to another and, as such, reflects the policies represented by freedom of contract. ... This article needs to be cleaned up to conform to a higher standard of quality. ... Nationality is, in English usage, a legal relationship existing between a person and a state. ... In private international law, domicile (formerly domicil) is a fundamental concept that defines a persons status, capacity and rights. ...

Characterising laws as either procedural or substantive is necessary, but this part of the process can be abused by the forum court to maximise the use of the local law. In some cases, this makes sense — after all, if the forum rules require legal documents to be printed in a twelve-point font, and the choice of law state requires the same documents to be printed in a fourteen-point font, it makes little sense to require the court to determine which font size should be used in a choice of law dispute. However, many contentious cases have centred on findings that issues such as the burdens of proof, the admissibility of evidence, and statutes of limitations are procedural rather than substantive, because these rules can change the outcome of a case. In the U.S., statutes of limitations would normally be considered procedural, but most states have enacted so-called borrowing statutes, which "borrow" the statute of limitations for the cause of action from the state in which the cause of action arose. A font can mean: A member of a typeface family; or digital font - file format that encapsulates a typeface family in a database. ... Burden of proof is the obligation to prove allegations which are presented in a legal action. ... The law of evidence governs the use of testimony (eg. ... A statute of limitations is a statute in a common law legal system setting forth the maximum period of time, after certain events, that legal proceedings based on those events may begin. ... A statute of limitations is a statute in a common law legal system setting forth the maximum period of time, after certain events, that legal proceedings based on those events may begin. ...

The generality of the characterisation process is not, and cannot be, a wholly scientific process. It is always a matter of interpretation. For example, if A who is a national of Arcadia, dies having made a valid local will leaving land situated in Barsoom to C who is domiciled in Catilage, how is the issue to be classified. Once might say that any rights that C might have are vested by the will that was made in Arcadia (i.e. the lex loci actus). 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). Or it may be a matter for the law of Barsoom since all matters of title to land must be adjusted by the lex situs as the law of the place where the land is situated. Thus, completely different judgments might result depending on how the forum court charcterises the action. One of the most enduring solutions to this problem was proposed by Savigny (1779-1861). 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, this would eliminate forum shopping by producing the same choice of law no matter where the case was begun. Unfortunately, the theory has not delivered the desired results. 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 therefore created a number of public policy exceptions to justify decisions "on the merits". Ernest G Lorenzen commented that this strategy was a warning that there must be serious problems with the rules if policy exceptions were the solution. Title is a legal term for an owners interest in a piece of property. ... Friedrich Karl von Savigny Friedrich Karl von Savigny (February 21, 1779 - 25 October 1861) was a German jurist. ...

Exclusion of the foreign law

Because the early system of connecting factors was mechanical and inflexible, the results could offend a court's sense of justice. 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 Cour de Cassation's insistence on this linkage frequently barred or severely limited relief for French parties injured in states that had no developed law for the compensation of such victims. Consequently, the lower courts used a variety of judicial devices to avoid the injustice. In the U.S., the New York Court of Appeals set a national trend in Babcock v Jackson, 240 N.E.2d 279 (N.Y. 1963), when it decided to abandon the lex loci delicti rule completely. Most jurisdictions have not been so radical, preferring to retain the framework of categories and choice of law rules but leave public policy in place as the avoidance device.

This exception provides that states will not apply any 'foreign' law that offends the deeply-held principles of the forum state's legal system. 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, e.g. for the purposes of sexual exploitation. In cases involving alleged immorality or injustice, this rule has been criticised as susceptible to abuse, for a court could characterise almost any statute or rule as being offensive to the public policy of their state. Less controversial are bars to any cases that would give extraterritorial effect to laws which are confiscatory, seeking to collect taxes owing in another state, or penal, i.e. laws that are designed to punish the party committing the wrong, rather than to compensate the party that suffered loss or injury. This can sometimes lead to a fine balancing act between claims for compensatory and exemplary damages. States traditionally will not apply the penal laws of other states in civil suits, just as one state would not apply the criminal laws of another state against a person charged with committing a crime. A monument celebrating the emancipation of slaves in the British Empire in 1834, erected in Victoria Tower Gardens, Millbank, Westminster, London Look up Slavery in Wiktionary, the free dictionary Enslaved redirects here. ... Possession is having some degree of control over something else. ... Confiscation is a seizure without compensation by a government authority. ... In the most general sense, penal is the body of laws that are enforced by the State in its own name and impose penalties for their violation, as opposed to civil law that seeks to redress private wrongs. ... Damages, in law has two different meanings. ...

In the U.S., the concept of governmental interest analysis was developed by Brainerd Currie and is favoured by many American conflicts writers. 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. The methodology he proposed relies almost entirely on the personal nexus between the litigants and the states. However, there is no single test for this nexus at an international level. Some states use the concept of domicile, others nationality, and the remainder citizenship; and definitions of domicile vary from state to state. So this methodology has never been accepted outside the U.S. Further, if the litigants are from different states, relying on one personal law rather than another may be arbitrary. To cope with this difficulty, Currie advocated that the lex fori should be applied whenever his method produced what he called a "true conflict". Critics have therefore alleged that Currie's approach is nothing more than a complex pretext for not applying foreign law when there are two or more personal laws.

Modern approach

Given that the characterisation system and the choice of law rules were operating in an inflexible way, the solution has been to allow the growth of judicial discretion within both parts of the system. Hence, most legal systems have opted for what English law calls the proper law approach, i.e. the identification and application of the law that has the closest connection with the cause(s) of action. It is accepted that the words have the same apparent spirit as the older approach, which requires some caution in their evaluation. In theory, this flexibility will preserve an international outlook and multilateral approach by the courts and, outside America, the results are not unencouraging. In the U.S., however, the test now adopted is termed the most significant contacts test or, in a slightly modified form defined in the Second Conflicts Restatement, the most significant relationship test. But, because different courts have interpreted these impressionistic phrases in different ways, there has been little judicial consistency.

References

• Currie, Brainerd. (1963). Selected Essays on the Conflict of Laws p.180.
• Lorenzen, Ernest G. (1947). Selected Articles on the Conflict of Laws. pp.13-14.
• Savigny, Friedrich Karl Von. (1849). System des heutigen römischen Rechts". Vol. 3, pp.121-26.