ISWAR SARAN PG COLLEGE

(UNIVERSITY OF ALLAHABAD)
BA.LLB(Hons)

9th semester

{2023-2024}

• SUBMITTED BY - Ankur Yadav

• ROLL NO. - 12
• SUBJECT – Private International Law
• TOPIC- Process and theories of characterisation
• SUBMITTED TO – Mrs. Niharika
 Acknowledgement

I would like to express my sincere thanks to Mrs. Niharika Singh ma’am for his valuable
guidance and support in completing my project. I would also like to express my gratitude
towards our principal Prof. Anand Shankar Singh for giving me this great opportunity to
do a project on “Process and theory of Characterisation”. Without their support and
suggestions, this project would not have been completed.

Ankur Yadav
BA.LLB{HONS.}
9th SEMESTER
2023-2024
 INDEX

S. NO. TABLE OF CONTENT PG. NO.

1 ABSTRACT 1

2 INTRODUCTION 2-3

3 PROCESS OF CHARACTERIZATION 3-4

4 THEORIES OF CHARACTERIZATION 4-7

5 CONCLUSION AND BIBLIOGRAPHY 8-9

 Abstract
Characterization is allocation of a category to the questions raised by factual situation before
the court so that its correct legal category and eventually the relevant rule or rules for the choice
of law can be applied to it. It deals with the process of assigning a factual situation to a proper
legal category. Different result can generate with different characterization making it vital and
intricate. In those cases where a different result would be achieved depending on which of
several possibly relevant laws is applied, characterization reveals the relevant rule for the
choice of law. A judge cannot make any pronouncement for he would not know the rule or
choice of law to be applied until he has not ascertained the true basis, that is, characterize the
plaintiff’s claim. In majority of cases, it is obvious that the facts must be subsumed under a
particular legal category that a particular conflict rule is available and the connecting factor
indicated by that conflict is unambiguous. In fact, the categorization may be so obvious as to
be automatic.

Various social scientists and jurists have propounded various theories of characterization
making the process intricate. Yet recent judicial pronouncements are carving path wherein we
can achieve uniformity in the process of characterization.
 INTRODUCTION

Conflict of laws otherwise known as Private International law is that part of municipal law of
the state which directs its courts and administrative agencies when confronted with legal
problems involving a foreign element to determine whether or not to apply a foreign law or
laws. It is mainly concerned with one or more of the following questions;

1) Choice of jurisdiction

2) Choice of law

3) Recognition and enforcement of foreign judgment

The problem of conflict of law though most of the time is often considered with how to solve
a case involving a foreign element, also has an internal scope. Nowhere is this more apparent
than in Nigeria.

Nigeria practices a federal system of government with its separate federal and state laws. The
country also practices a dual system of court and there is multiplicity of laws within the state.
Therefore, internal conflicts of law are inevitable.

However in any conflict of law case, one of the first things the court must do is to
categorize the legal question under a particular legal heading. This process
called characterization (also known as classification by English writers and qualification by
French writers) presents a very knotty issue in conflicts of law.

In ASHIRU V BENSON & ANOR (1967) N.M.L.R pg 363, the plaintiff, dependant of a
victim of an automobile accident which occurred in Western Nigeria successfully brought an
action under the Federal Fatal Accident in Lagos High Court against the defendants. The
defense contended that an action could not lie under the Lagos statute where the injury and
death occurs in Western Nigeria. The action succeeded.
The court in this case notwithstanding the criminal ramifications of the matter in question,
characterized the matter as tort and subsequently laid down the conflict rule that a foreign cause
of action in tort has to fit into the domestic category of tort.

Process of Characterization

The court is required to analyse the pleadings prepared by the parties and to assign each
component element to the most appropriate judicial concept or category. The rules of any given
system of law are arranged under different categories, addressing procedure, status, contract,
tort, divorce, nullity, 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 personal law namely the law of nationality
(THE LEX PATRIAE) or habitual residence in a civil law state, or the law of domicile (THE
LEX DOMINILII) in a common law state.

Characterizing laws as either procedural or substantive is necessary, but this part of the process
can be abused by the forum count to maximize the use of the local law.

However, the generality of the characterization process is no, 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 local will transferring land situated in Mongolia to C who is domiciled in
Bethpage, how is the issue to be classified? One 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
Bethphagean law (THE LEX LOCI DOMICILLI). Or it may be a matter for the law of
Mongolia 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 characterizes the action. To solve this dilemma
SAVIGNY (1779 – 1861) proposed that it was always necessary for the court to find the
‘natural seat’ or ‘center 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 shopping1 by producing the same choice of law no
matter where the case was begun. But unfortunately the solution has not yielded the desired
result. Forum shopping remains a problem, and neither legislators nor judges have been able
to agree on characterization issues, producing classifications that extend rather than reduce
international divergences. In an attempt to avoid obvious unjust results in particular cases, some
judges therefore created a number of public policy exceptions to justify decisions.

THEORIES OF CHARACTERIZATION

There are four theories of characterization as stated below:

1. Characterization based on Lex Fori or The Lex Fori theory.

2. Characterization based on Lex Cause or The Lex Causae Theory.

3. The Two-Fold Characterization Theory or The Dual Theory of LexFori or LexCausae

4. Characterization based on Comparative Law and Analytical Jurisprudence

5. The Autonomous Theory.

Characterization based on Lex Fori or The Lex Fori theory.

The idea of Lex Fori was initially suggested in the 1890s by German and French authors Kahn
and Bartin. The English courts have adopted and employed this well-acknowledged concept.
According to the theory, a specific issue should be categorised to comply with the relevant
domestic laws as well as the international norms governing the matter in conjunction with the
domestic law that is the closest to both sets of laws.

Characterization issues can be addressed using the law of the forum, often known as lex fori
theory. The lawful dispute is governed by the idea of characterisation. The idea of
characterisation permits a court to choose which law will apply in a specific circumstance. If
the issue is not settled, it will be challenging to apply the correct conflict of law rule.

When domestic factors are present, the tribunal will rely on local laws; but, when foreign
considerations, such as domicile, are present, the court must consider three main factors:

1
Themes on conflict of laws- I.O Agbede (1989)
  If the tribunal in question is qualified to hear the case.

 The grouping of the issues

 The legislation to be implemented in these situations is a question of decision.

There are two significant exceptions to the lex fori-based norm of characterization:

 Lex Situs (Law governing both moveable and immovable properties).

 Lex Loci Contractus (Law governing in circumstances of a contract via

correspondence).

The premise of these exceptions is that this law will best enhance the security of real estate and
contract transactions.

Characterization based on Lex Cause or The Lex Causae Theory.

The law or laws selected by the forum court from among the pertinent legal systems to reach
its decision in an international or inter-jurisdictional dispute are known as lex causae. In private
international law, the system of law (usually foreign) applies to the case in dispute, as opposed
to the lex fori.

In contrast to the Lex Fori thesis, Despagnet and Martin Wold put out the Lex Causae thesis.
According to Wold, any legal regulation derives its classification from the legal framework to
which it belongs. French legal rules are divided into categories. similar to other laws, including
Indian law. The French categorization must be taken into account by an English Court when
determining whether the French Rules are applicable.

Critiquing the theory, “If the law which is finally to regulate the matter (i.e., the lex cause)
depends upon classification how can a classification be made according to that law?”

Wolff argues, “In my opinion, the criticism does not hold good, but is based merely on the
peculiar way in which conflict rules are framed.” To give examples: ‘The effect of marriage on
the property of spouses is determined by the legislation of their matrimonial residence’.

The theory of Two-Fold Characterization or The Dual Theory of Lex Fori

or Lex Causae
According to the Two-Fold theory of characterisation, characterisation is essentially worked
out by splitting the characterization process into primary characterization and secondary
characterization.

(i) Lex fori Characterization for the primary.

(ii) Lex causae Characterization for the secondary.

The advocate of this theory recognises two exceptions to the usual rule that the lex fori should
apply to primary characterization. There are two exceptions to this rule: (a) the lex situs should
decide whether anything is moveable or immovable, and (b) the forum should use the common
characterisation of any two potentially relevant foreign laws.

As Robertson puts it, Applying and defining the appropriate law is the second characteristic.
The distinction between the main and secondary characterizations, in Cheshire’s opinion, is
that the former comes first and the latter comes second. According to this idea, the lex causae
governs secondary characterisation. The lex fori, however, governs any conflicts between
procedural norms. The lex causae should be used to determine whether a matter is procedural
or not at the secondary stage of characterization. However, just as with primary
characterization, it is not necessary to follow domestic characterization in this instance; instead,
private international law or classification should be used.2 According to Dicey, the main issue
with this idea is that it is not apparent how to distinguish between the primary and secondary
characters.3

Characterization based on Comparative Law and Analytical Jurisprudence

Rabel and Beckett proposed the idea in their hypothesis. They argue that analytical
jurisprudence built on an examination of laws in contrast should govern characterization.
Starting from the premise that “rules of private international law are rules to enable judges to
decide questions as between different systems of international law either between his internal
law and a given foreign law or between two foreign systems of law” and that these rules “if
they are to perform the function for which they are designed, must be such, and must be applied
in such a manner, to render them suitable for appreciating the character of the other systems of

2
Robertson, A.H., Characterization in the Conflict of Laws, (University of Toronto Press, 4th Edition, 1996)
3
Rule of Law <https://lscollege.ac.in> accessed on 9 June 2023
international law.”4 Thus, according to Beckett, characterisation must be grounded in analytical
jurisprudence.

 The Autonomous Theory

Wolff proposes the straightforward categorization of every legal norm following the legal
system to which it belongs. His idea holds that the entire foreign legal system should be taken
into consideration when the English Court classifies a foreign norm. The approval of the
foreign categorization is always subject to the supreme public policy and morality of English
law; nevertheless, there is little evidence to support this idea in court decisions.

4
Damir Banovic, About John Austin’s Analytical Jurisprudence: The Empirical-Rationalist Legal
Positivism (Vol. 21, No.1, June 2021) <researchgate.net> accessed on 9 June 2023
 CONCLUSION
Characterization involves several complex steps that can be made simpler by applying theories,
but an elegant solution has not yet been found. Whether or not the question and any related
questions should always be submitted to the lex causae can be considered to follow the lex for
its selection of foreign law. If the issue is regarding the application, then the adjudicating
authority should look at the precedents. In the case of Macmillan Inc. v. Bishopsgate Investment
Trust plc5, Auld LJ made the following comment about a case where the lex fori provided
characterization: “However, classification of an issue and rule of law for this purpose, the
underlying principle of which is to strive for comity between different legal systems, should
not be constrained by particular notions or distinctions of the domestic law of the lex fori or
that of the competing system of law, which may have no counterpart in other systems.
Furthermore, the topic should not be too precisely specified lest it is subject to a specific lex
fori rule that would not hold under another system.” As a result, Characterization should not
be limited and should be decided according to the relevant information.

5
Macmillan Inc. v. Bishopsgate Investment Trust plc (1996) 1W.L.R. 387 [No3]
 BIBLIOGRAPHY

 http://legalrescue.blogspot.com/2013/01/the-concept-of-characterisation-
and_9.html
 https://www.juscorpus.com/characterization-in-private-international-law-
concept-and-theories-2/
 http://www.voiceofresearch.org/doc/Dec-2015/Dec-2015_13.pdf