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 Legal case, case, Transactional law, transaction, or other occurrence that has connections to more than one jurisdiction."Conflict o ...

, is the second stage of the procedure to resolve a

lawsuit A lawsuit is a proceeding by one or more parties (the plaintiff or claimant) against one or more parties (the defendant) in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today ...

that involves foreign law. The process is described in

English law English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...

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

European Court of Justice The European Court of Justice (ECJ), officially 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 Union, it is tasked with interpreting ...

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

French law French law has a dual jurisdictional system comprising private law (), also known as judicial law, and public law (). Judicial law includes, in particular: * () * Criminal law () Public law includes, in particular: * Administrative law ( ...

. 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 ...

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' and 'speech' or 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple levels ...

. 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 (Law Latin for "the law of the place") is a shorthand version of the choice of law rules that determine the (the laws chosen to decide a case).''Black's Law Dictionary'' abridged Sixth Edition (1991), p. 630. Gener ...

''. Additional factors make this determination not necessarily a simple process as the incidental question and renvoi can make determining the initial point of reference difficult. The leading authorities in England and Wales are '' Macmillan Inc v Bishopsgate Investment Trust plc (No 3)''

996 Year 996 ( CMXCVI) was a leap year starting on Wednesday of the Julian calendar. Events By place Japan * February - Chotoku Incident: Fujiwara no Korechika and Takaie shoot an arrow at Retired Emperor Kazan. * 2 March: Emperor ...

WLR 387 and .

Overview

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

court A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...

to determine if it has

jurisdiction Jurisdiction (from Latin 'law' and 'speech' or 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple level ...

, if appropriate, to avoid

forum shopping Forum shopping is a Colloquialism, colloquial term for the practice of litigants taking actions to have their legal case heard in the court they believe is most likely to provide a favorable judgment. Some jurisdiction (area), jurisdictions hav ...

. 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 State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...

have 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 that can be applied to the highest leader in various categories. The word is borrowed from Old French , which is ultimately derived from the Latin">-4; we might wonder whether there's a point at which it's appropriate to ...

territory of one particular state or nation. This is especially complicated because domestic laws usually operate to satisfy domestic interest. Various causes of actions and their respective remedies differ depending on the state. This derive from historical and political circumstances. The addition of the Rome I 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 A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more parties. A contract typically involves consent to transfer of goods, services, money, or promise to transfer any of those a ...

and

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