The Problems of Characterization

I.

What is Characterization?

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 but it is not necessarily a simple process.
Characterization is also the second step in the conflicts of law process:
1. The court must first decide whether it has the jurisdiction to hear the case
(which will involve addressing the question of whether the plaintiff is
attempting to manipulate the judicial system by forum shopping).
2. Characterisation. The court must analyse the case as pleaded and allocate
each component to its appropriate legal classification, each of which will
have one or more choice of law rules attached to it.
3. The court will then apply the choice of law rules. In a limited number of cases,
usually involving Family Law issues, anincidental question may arise which
will complicate this process.
II.

How do we Characterize?
a. Subject-Matter Characterization

Calls for the classification by a court of a factual situation into a legal

category.

b. Substance-Procedure Dichotomy

Directs the court to the extent it will apply foreign law. Such that, if the
issue is substantive, the court may apply foreign law. If the issue is
procedural, it is to follow the law of the forum.

Why apply forum law to matters of procedure?

Procedural issues are governed by forum law so as not to

unduly burden or complicate the task of the court with
the study of uncommon peculiarities and refinements of
another legal system.

However sometimes lines between procedural and substantive law

are blurred. Particularly in laws concerning a) Statute of Frauds; and b)
Statutes of Limitations

A) Statute of Frauds: Laws are considered Substantive if the

words of the law relate to forbidding the creation of obligation.
They are considered Procedural if it forbids the enforcement of
the obligation.

B) Statute of Limitations: By tradition, prescriptive laws are

considered as procedural because they bar the legal remedy
without impairing the substantive right.

c. Depacage - Characterization may also be done on an issue-by-issue level

by way of Depacage.

In French it means; to dissect. It provides that different aspects of a case

involving foreign elements may be governed by different systems of laws.
It also allows the use of the single-aspect approach on an issue-by-issue
level, rather than being applied to the entire case. Thus it helps ease the
restrictions of the single-aspect method. Courts are not compelled to
apply the entirety of a states law to all aspects of the casemakes the
decisions more fair and reasonable.