by Axel Metzger
In private international law, the characterization or classification of the cause of action (qualification, Qualifikation, qualificazione, calificación, kwalificatie) means the assignment of the legal question raised by the factual situation of a case to the appropriate legal category of private international law (PIL). Classification raises particular methodological problems in private international law. Conflict of law rules typically use broad categories which may cover large numbers of specific rules and areas of substantive law, eg ‘contract’, ‘non-contractual obligation’, ‘property’ or ‘succession’. This raises questions in borderline cases where it is difficult to determine whether a particular issue falls within one judicial category or another. Typical problems of characterization arise at the boundaries between substantive and procedural law, eg in case of limitation of actions or regarding questions of burden of proof. Another example concerns the law of succession for spouses, which may be qualified as a question of succession or as a question of matrimonial property. The subject matter to be classified is, in any case, the concrete legal question. Although modern private international law searches for the closest connection of factual situations to legal orders, it is not appropriate to allocate the facts as such to the rules of private international law since these rules are typically drafted at an abstract level, unsuitable for a direct application to specific facts. Therefore, in typical cases, legal questions arising from concrete facts are characterized, eg the validity of a religious marriage without any involvement of state authorities or the legal consequences of a separation of spouses.
2. Current trends in European jurisdictions
Characterization of a legal question depends on its attribution to the general categories of law, which accordingly raises the question of which legal categories should guide this process. Since the 19th century, private international law has commonly been understood as an integral part of national law (apart from international and supranational choice of law rules, see 3. and 4. below). As a result, according to the prevailing opinion, the characterization of a legal question is to be effected on the basis of the categories of the lex fori. The lex fori theory was established by Etienne Bartin and Franz Kahn in the late 19th century and is still the predominant approach in Europe. Some jurisdictions have codified the lex fori theory, eg Portugal, Romania and Spain. Other jurisdictions apply the principle without a statutory codification, eg France, Germany and the Netherlands. However, taking the lex fori as a starting point does not mean that the categories of the local substantive law are applied as such in private international law. The rules of private international law are also applicable to legal questions which may only arise under the substantive law of another jurisdiction, eg in case of the characterization of the mahr (dower) as it is still common in many Islamic countries. In this case, characterization would be impossible for a German court if the judges could only refer to the legal categories of German substantive law which have no equivalent to the Islamic mahr. But even in cases where the lex fori provides an equivalent concept, courts are more and more willing to compare the function of the domestic institution with the equivalent institution of the respective foreign law. This functional or teleological characterization is recognized in many European jurisdictions, eg Belgium, France, Germany, Italy, the Netherlands and Switzerland. Also in England, recent case law seems to be more open for a comparison of the categories of the lex fori with the lex causae.
While no one would dispute that it is indispensable to take into account the legal background of other jurisdictions, it is still controversial whether characterization should be effected entirely independent from the legal categories of the lex fori. It was Ernst Rabel who first advocated that characterization should be effected on the basis of autonomous legal categories found by comparative law analysis. This would allow a worldwide uniform characterization since national courts would no longer apply the categories of the lex fori. But this approach, although supported by academics, has not yet been accepted in legal practice with regard to national conflict rules. But one of the main counter-arguments against such an approach has lost some of its persuasive power. It is true that at the time Rabel proposed his theory it would have been too much of a burden for courts to develop autonomous legal categories for the purpose of characterization. Today, however, at least in the field of contracts, the Principles of European Contract Law (PECL) and the UNIDROIT Principles of International Commercial Contracts (PICC) could serve as a basis for Rabel’s theory.
In exceptional cases, characterization is not effected on the basis of the lex fori but in accordance with the lex causae. According to Martin Wolff, the most prominent supporter of this theory, ‘it is preferable to start from the view that every legal rule takes its classification from the legal system to which it belongs’. But the lex causae theory is of little significance in legal practice. One of the rare examples where the approach is applied by the courts concerns the line between movable property and real estate in French, German and Swiss private international law. The question of whether movables should be considered as an integral part of a real estate or whether they should be attributed to the conflict rules for movables is characterized in accordance with the categories of the law applicable to the real estate. But examples like this do not provide sufficient support for the general application of lex causae characterization.
3. Characterization in European private international law
Private international law has been partly unified in the European Union since the Amsterdam Treaty on the basis of Arts 67, 81 TFEU/61, 65 EC. The most important enactments are the Rome I Regulation (Reg 593/2008) on the law applicable to contractual obligations (contractual obligations (PIL)) and the Rome II Regulation (Reg 864/2007) on the law applicable to non-contractual obligations (non-contractual obligations (PIL)). Concerning the private international law of matrimonial matters, maintenance obligations, divorce and succession (family law (international)), the Commission has published Green Papers and drafts. At the end of 2010, Regulation 1259/2010 on the law applicable to divorce and legal separation was enacted. But all mentioned enactments, drafts and Green Papers concern specific issues whereas the general questions of private international law, like the question of characterization, have not been unified so far by autonomous rules. Therefore the legal basis of characterization under the European conflict rules is currently not settled. The application of the traditional lex fori approach would undermine the primary purpose of the regulations, which is to establish a European area of freedom, security and justice. This goal cannot be achieved if national courts are using their domestic legal categories to characterize legal issues under the European regulations. Therefore, in case of European conflict rules, courts should rather characterize legal questions in accordance with autonomous European legal categories taken from the acquis communautaire, if such categories exist in the law of the Union. Where the acquis communautaire does not provide such categories, courts should adopt a comparative law analysis.
For some of the most intricate questions, the European regulations provide specific characterization rules, see Art 12 Rome I Regulation and Art 15 Rome II Regulation, which clarify, for example, that prescription is part of the law applicable to the contractual or non-contractual obligation and not a question of procedural law. In the absence of such specific characterization rules, courts should apply an autonomous method of characterization as described above.
The European Court of Justice (ECJ) has frequently encountered similar problems of characterization regarding the Brussels Convention and Brussels I Regulation (Reg 44/2001). Here, since the LTU v Eurocontrol decision (ECJ Case 29/76  ECR 1541), the Court and the Advocate Generals have applied an autonomous method of interpretation with frequent references to the general principles of law shared by the Member States: ‘In the interpretation of the concept “civil and commercial matters” for the purposes of the application of the convention and in particular of title III therefore, reference must not be made to the law of one of the states concerned but, first, to the objectives and scheme of the convention and, secondly, to the general principles which stem from the corpus of the national legal systems’ (ECJ Case 29/76  ECR 1541, para 5). There are many examples in the case law of the ECJ for such explicit references to the general principles based on comparative law analysis, eg Bertrand v Ott (ECJ Case 150/77  ECR 1431) for the interpretation of ‘sale of goods on instalment credit terms’ in Art 13 no 1 Brussels Convention; Gourdain v Nadler (ECJ Case 133/78  ECR 733) for the interpretation of ‘bankruptcy’ in the sense of Art 1 Brussels Convention and Tacconi v HWS (ECJ Case C-334/00  ECR 7357) for the question of whether pre-contractual liability should be qualified as a tort in the sense of Art 5 no 3 Brussels Convention.
4. Characterization in international treaties
For private international law, multilateral and bilateral treaties provide an important source of law. In the framework of international treaties, characterization may not be based on the legal categories of the law of the forum. The primary goal of the treaties is to unify the conflict rules on an international scale. If courts were to effect characterization on the basis of the lex fori, this goal could not be achieved. In this sense, Art 18 of the Rome Convention of 1980 on the law applicable to contractual obligations provides that ‘in the interpretation and application of the preceding uniform rules, regard shall be had to their international character and to the desirability of achieving uniformity in their interpretation and application’.
International treaties often provide characterization rules for specific issues, stating which questions shall be encompassed by the rules of the respective treaty, see eg Art 10 of the Hague Convention of 1973 on the law applicable to maintenance obligations. If the respective treaty does not provide a characterization rule for the subject matter of the case, courts should extract, if possible, the necessary criteria for characterization from the treaty at issue by systematic interpretation or use a comparative law analysis with special emphasis on the law of the member states of the particular treaty.
Franz Kahn, ‘Gesetzeskollisionen. Ein Beitrag zur Lehre des internationalen Privatrechts’ (1891) 30 Jherings Jahrbücher für die Dogmatik des heutigen römischen und deutschen Privatrechts 107; Etienne Bartin, ‘De l’impossibilité d’arriver à la suppression définitive des conflits des lois’ (1897) 24 Journal du droit international 225, 466, 720; Ernst Rabel, ‘Das Problem der Qualifikation’ (1931) 5 RabelsZ 214; Martin Wolff, Das internationale Privatrecht Deutschlands (3rd edn, 1954); Henri Batiffol and Paul Lagarde, Droit international privé (8th edn, 1993); Luc Strikwerda, Inleiding tot het Nederlandse internationaal privaatrecht (8th edn, 2005); Jan Kropholler, Internationales Privatrecht (6th edn, 2006); Lord Collins and others (eds), Dicey, Morris and Collins on the Conflict of Laws (14th edn, 2006); Christian Heinze, ‘Bausteine eines Allgemeinen Teils des europäischen Internationalen Privatrechts’ in Festschrift Jan Kropholler (2008) 105.