Characterisation, or characterization, in

conflict of laws Conflict of laws (also called private international law) is the set of rules or laws a jurisdiction applies to a case, transaction, or other occurrence that has connections to more than one jurisdiction. This body of law deals with three broad ...

, is the second stage of the procedure to resolve a

lawsuit - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...

that involves foreign law. The process is described in

English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, b ...

as ''Characterisation'', or ''classification'' within the English judgments of the

European Court of Justice The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European U ...

. It is alternatively known as ''qualification'' in

French law The Law of France refers to the legal system in the French Republic, which is a civil law legal system primarily based on legal codes and statutes, with case law also playing an important role. The most influential of the French legal codes is t ...

. It is used to determine the correct

choice of law Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states (as in t ...

rules based on the circumstances of the case, primarily relating to matters of property. This is to reconcile differences between laws of different legal

jurisdictions Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Ju ...

. The objective of characterisation is to determine the nature of the action brought by the defendant in order to determine what relevant rules of applicable law apply. This may result in applying laws which differ from the ''

lex fori In conflict of laws, the term ''lex loci'' (Latin for "the law of the place") is a shorthand version of the choice of law rules that determine the '' lex causae'' (the laws chosen to decide a case).''Black's Law Dictionary'' abridged Sixth Edition ( ...

''. Additional factors make this determination not necessarily a simple process as the

incidental question Incidental questions in private international law with respect to the problems and elements discussed below In the Roman conflict of laws, an incidental question is a legal issue that arises in connection with the major cause of action in a lawsuit ...

and

renvoi In conflict of laws, renvoi (from the French, meaning "send back" or "to return unopened") is a subset of the choice of law rules and it may be applied whenever a forum court is directed to consider the law of another state. The procedure for con ...

can make determining the initial point of reference difficult. The leading authority in England and Wales is

Macmillan Inc v Bishopsgate Investment Trust plc (No 3) is a judicial decision relating to English trusts law and conflict of laws case from the Court of Appeal. The issue arose in relation to frauds conducted by the late Robert Maxwell. The appeal was not actually an appeal on the full decision, b ...

996 Year 996 ( CMXCVI) was a leap year starting on Wednesday (link will display the full calendar) of the Julian calendar. Events By place Japan * February - Chotoku Incident: Fujiwara no Korechika and Takaie shoot an arrow at Retired Emp ...

WLR 387

Overview

Characterisation is one of the key element in demarcating the choice of law and jurisdiction issues. The first stage is for the

court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in acco ...

to determine if it has

jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. J ...

, if appropriate, to avoid

forum shopping Forum shopping is a colloquial term for the practice of litigants having their legal case heard in the court thought most likely to provide a favorable judgment. Some jurisdictions have, for example, become known as "plaintiff-friendly" and so ...

. Once the forum court decides that it has

to hear the case, it must characterise or classify the cause(s) of action, this relates to

matters. That is regarded as the most important and difficult problem in conflict of laws as trade and travel between states has become the norm. The effects of broken promises, defective goods, traffic accidents and marital squabbles are no longer confined to the

sovereign ''Sovereign'' is a title which can be applied to the highest leader in various categories. The word is borrowed from Old French , which is ultimately derived from the Latin , meaning 'above'. The roles of a sovereign vary from monarch, ruler or ...

territory of one particular state or nation. This is especially complicated because domestic laws usually operate to satisfy domestic interest. Various causes in actions and their respective remedies differ depending on the state. This derive from historical and political circumstances. The addition of the

Rome I The Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations) is a regulation which governs the choice of law in the European Union. It is based ...

and

Rome II Regulation The Rome II Regulation (EC) N864/2007is a European Union Regulation regarding the conflict of laws on the law applicable to non-contractual obligations. From 11 January 2009, the Rome II Regulation created a harmonised set of rules within the Euro ...

s to the European Union conflict of laws regime is designed to determine the choice of law which applies to situations where commercial or civil matters of broken promises, defective goods, traffic accidents, etc. with a party which is domiciled in a Member State. The role of characterisation within an international private law adjudication might be highlighted if understood within the simplest example of the sale of a bicycle by A to B. The transaction has both contractual and

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