Характеризация в международном частном праве: определение применимого права.

Characterisation, or characterization, in conflict of laws, is the second stage of the procedure to resolve a lawsuit that involves foreign law. The process is described in English law as Characterisation, or classification within the English judgments of the European Court of Justice. It is alternatively known as qualification in French law. It is used to determine the correct choice of law 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. 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. 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 is Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1996] WLR 387 and .

Characterisation is one of the key elements in demarcating the choice of law and jurisdiction issues. The first stage is for the court to determine if it has jurisdiction, if appropriate, to avoid forum shopping. Once the forum court decides that it has jurisdiction to hear the case, it must characterise or classify the cause(s) of action, this relates to choice of law 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 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 and Rome II Regulations 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 proprietary elements. Different jurisdictions will characterise the matter in different ways depending on their own laws. As is crucial within the international private law context, it is the responsibility of the adjudicating court to determine the proper law and subsequently apply it. For example, in English law, two separate methods for characterising the cause of action exist. The first, are commercial and civil matters relating to contractual and non contractual obligations. The Rome Regulations determine choice of law rules in said matters by providing an allocative framework for characterisation. By contrast, the second method is that of the common law rules, applying to matters of property, marriage, and matters which fall outside the Rome Regulations. In Macmillan Inc. v Bishopsgate Investment Trust plc [1996] 1 ALL E R 585, Auld LJ. accepted that "the proper approach is to look beyond the formulation of the claim and to identify according to the lex fori the true issue or issues thrown up by the claim and the defence". In both cases, characterisation depends on determining the applicable law to the set of facts in order to determine the choice of law. This is often done in reference to the lex causae, the "law of the causes". However, the lex causae would, under certain circumstance, be problematic to determine the facts of the case.

Characterisation in the conflict of laws can be applied both to issues in dispute in a particular case, and in relation to particular foreign laws.

Typically in a dispute which has a cross border an element, where an issue arises between the parties the court will characterise the nature of that dispute, and the characterisation or classification of the issue will thereby point to the correct choice of law rule to apply. Although the characterisation process is a fundamental part of the conflict of laws, cases where characterisation is disputed are relatively rare. In most cases the proper characterisation is applied almost "without thought". In English law two of the most celebrated cases where classification was disputed were the leadings cases of Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1996] WLR 387 and Raiffeisen Zentralbank Österreich AG v Five Star General Trading LLC [2001] EWCA Civ 68. In Macmillan the issue was which party had the greater priority claim to certain shares the mortgagee of the shares, or the innocent third party who had been defrauded by the mortgagor. The mortgagees argued that the issue was properly characterised as an issue of property law (in which case the law of the situs would apply), whereas the defrauded victims argued it was an issue of the law of restitution (in which case the law of the place of enrichment was argued to apply). The Court of Appeal held that the issue of who had priority to title to the shares was an issue of property law. In RZB v Five Star General Trading LLC [2001] EWCA Civ 68 the issue was who had a better claim to the proceeds of a marine insurance policy the banks to whom the insurance policy had been mortgaged, or a third party who had obtained an attachment over the policy following a collision at sea. The third party argued that the issue was a matter of property law (in which case the law of the situs which in this case was France should apply, and they would prevail). The banks argued it was a matter of the law of contract (in which case the governing law of the contract English law would apply). The Court of Appeal held that the issue should properly be characterised as a matter of contract.

The English courts will often seek to characterise a rule of foreign law to determine whether or not it applies to the dispute before them. For example, in Huber v Steiner (1835) 2 Bing (NC) 202 the court had to consider the nature of a rule of French law which prohibited the bringing of an action on a promissory note (which was governed by French law) after five years. The court held that the rule of French law was procedural rather than substantive, and that as such it did not apply in the proceedings before the English court as procedural matters were to be determined by English law. Similarly, in Re Maldonado [1954] P 223 a Spanish domiciliary had died intestate with no living heirs. Under Spanish law the state would inherit as 'ultimate beneficiary'. The English court had to decide whether the Spanish law was properly characterised as a rule of succession (in which case it would apply, as the law of the deceased's domicile) or a rule of property law (in which case it would not apply, as the relevant property was located in England and title was determined by the lex situs). The court characterised the Spanish law as a rule of succession and applied it.

Choice of law characterisation within the European regime relating to civil and commercial matters is determined by the Rome I Regulation and Rome II regulation. The Rome I regulation, succeeding the Rome Convention regulates choice of law rules regarding contractual obligations, meaning voluntary obligations between two parties, which uses the definition that is used for Article 7.1 of the Brussels Regulation: "An obligation freely entered into with regard to another, identified, person". By contrast, the Rome II regulation covers non contractual obligations, including Torts, delicts, and semi delicts. The determination of whether a matter is contractual or non contractual may, at first glance, appear straightforward but becomes complicated when one considers how to categorise pre contractual obligations and liability and disputes, or fiduciary duties existing between contracting parties (which are neither non contractual nor contractual obligations that may arise as a result of a contract). The question of characterisation becomes crucial to determining which regulation applies. The leading authority of C 359/14 Ergo Insurance SE (2016) outlined the distinction between when a contract, in this circumstance an insurance agreement, would be categorised as either contractual or non contractual. The decision affirmed that the first stage of applying choice of law rules, particularly those in the European regime, must be determining the categorisation, or "classification" of the disputes. In the European context, 'contractual obligation' and 'non contractual obligation' must be interpreted independently from national law. The concept of 'non contractual obligation' was determined broadly and by reference, at least in part, to the obligations which did not fall within 'contractual obligations' (as defined by C 375/13 Kolassa paragraph 39).

Since characterisation and the choice of law rules were operating inflexibly, 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: 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, flexibility will preserve an international outlook and multilateral approach by the courts and in most places, the results are encouraging. In the US, 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. However, because different courts have interpreted these impressionistic phrases in different ways, there has been little judicial consistency.