Conflict of Law Group 3
By: Adesoye Ibukunoluwa, Bolomope Bashirat
Ifeoluwa, Sowunmi Temitope and Ogundoye Gbenga
INTRODUCTION
Conflict
of laws otherwise known as Private International law is that part of municipal
law of the state which directs its courts and administrative agencies when
confronted with legal problems involving a foreign element to determine whether
or not to apply a foreign law or laws. It is mainly concerned with one or more
of the following questions;
1) Choice of jurisdiction
2) Choice of law
3) Recognition and enforcement of foreign
judgment
The
problem of conflict of law though most of the time is often considered with how
to solve a case involving a foreign element, also has an internal scope.
Nowhere is this more apparent than in Nigeria.
Nigeria
practices a federal system of government with its separate federal and state
laws. The country also practices a dual system of court and there is
multiplicity of laws within the state. Therefore, internal conflicts of law are
inevitable.
However in any conflict of law case, one
of the first things the court must do is to categorize the legal question under
a particular legal heading. This process called characterization (also known as classification by English writers
and qualification by French writers) presents a very knotty issue in conflicts
of law.
In ASHIRU V BENSON & ANOR (1967) N.M.L.R pg
363, the plaintiff, dependant of a victim of an automobile accident
which occurred in Western Nigeria successfully brought an action under the
Federal Fatal Accident in Lagos High Court against the defendants. The defense
contended that an action could not lie under the Lagos statute where the injury
and death occurs in Western Nigeria. The action succeeded.
The
court in this case notwithstanding the criminal ramifications of the matter in
question, characterized the matter as tort and subsequently laid down the
conflict rule that a foreign cause of action in tort has to fit into the
domestic category of tort.
CHARACTERISATION AND
THE PROBLEMS ASOSCIATED WITH IT
Characterization
refers to the allocation question raised by factual situation before the court
to its correct legal category and its object is to reveal the relevant rule or
rules for the choice of law. It deals with the process of assigning a factual
situation to a proper legal category. In those cases where a different result
would be achieved depending on which of several possibly relevant laws is
applied, characterization reveals the relevant rule for the choice of law. Thus
until the judge has ascertained the true basis, that is, characterize the
plaintiff’s claim he cannot make any pronouncement for he would not know the
rule or choice of law to be applied. This issue of characterization has been
regarded by many continental and some English and American writers as a problem
fundamental to the conflict of laws. It was discovered independently and almost
simultaneously by the German jurist Kahn and the French jurist Bartin at the
end of the 19th Century and was introduced to American lawyers by
Lorenzen in 1920 and to English lawyers by Beckett in 1934.
In
majority of cases, it is obvious that the facts must be subsumed under a
particular legal category that a particular conflict rule is available and the
connecting factor indicated by that conflict is unambiguous. In fact, the
categorization may be so obvious as to be automatic. For example, a buyer’s
claim against the seller that the thing he bought does not work as it supposed
to, is so obviously a contractual issue that any court or lawyer dealing with it would not even advert to the
classification process before turning to the law of contract to seek the
solution. But if the malfunction causes injury or damage to the property, or if
the complainant is not the buyer of the product but the user of it, either the
initial characterization has to be amended in some way or the situation seen as
something else entirely –a tort perhaps or the subject of statutory action.
Thus, characterisation sometimes and most of the times is not obvious. Even if
the forum and the foreign country have the same conflict rule and interpret the
connecting factor in the same way, they may still reach different results
because they characterize the question in different ways. For instance, the
forum may regard the question as one of succession, while the foreign law may
regard the same question as one of matrimonial property.
IN
OGDEN
VS OGDEN (1908) PN6, a French man under the age of 21 marries an
English woman in England without obtaining the consent of his parent as
required by French law. The French and English conflict rules agree that the
formalities of marriage are governed by the LEX LOCI CELEBRATIONIS (English Law) and also that the husband must
have capacity to marry by his personal law (FRENCH). But is the issue in the
case one of formalities (in which case the French rule will apply and the
marriage will be void for want of capacity)? Or is the French rule to be
characterized as one dealing with formalities (and so inapplicable) or with
capacity)
A
classic problem of characterization came before the Appeal Court in Algiers in ANTON
VS BARTOLA (1891) Clunet 1171. The husband and wife were domiciled in Malta
at the time of their marriage. Subsequently, they settled in France and the
husband bought land there. On his death the wife claimed a life interest in the
French land. French and Maltese law had the same choice of law rules –
succession to immovables was governed by the LEX SITUS while matrimonial property rights were matters for the LEX DOMICILI at the time of marriage.
However, French Law classified the issue as one of succession whereas Maltese
law saw it as matrimonial property. In the event the court applied Maltese law.
THE PROCESS OF
CHARACTERIZATION
The
court is required to analyze the pleadings prepared by the parties and to
assign each component element to the most appropriate judicial concept or
category. The rules of any given system of law are arranged under different
categories, addressing procedure, status, contract, tort, divorce, nullity, etc.
For each category, there is one or more choice of law rule(s). Hence, for
example all questions as to the status of a person before a court, viz an
infant or adult, legitimate, legitimated or illegitimate, married or not,
mentally incapacitated or not, bankrupt or not, etc. will all be governed by
the person’s personal law namely the law of nationality (THE LEX PATRIAE) or
habitual residence in a civil law state, or the law of domicile (THE LEX
DOMINILII) in a common law state.
Characterizing
laws as either procedural or substantive is necessary, but this part of the
process can be abused by the forum count to maximize the use of the local law.
However,
the generality of the characterization process is no, and cannot be a wholly
scientific process. It is always a matter of interpretation. For example, if A
who is a national of Arcadia, dies having made a local will transferring land
situated in Mongolia to C who is domiciled in Bethpage, how is the issue to be
classified? One might say that any rights that C might have are vested by the
will that was made in Arcadia (i.e. THE LEX LOCI ACTUS). Equally, the right to
succeed to title might be an aspect of C’s status as the oldest surviving male
heir under Bethphagean law (THE LEX LOCI DOMICILLI).Or it may be a matter for
the law of Mongolia since all matters of title to land must be adjusted by the
LEX SITUS, as the law of the place where the land is situated. Thus, completely
different judgments might result depending on how the forum court characterizes
the action. To solve this dilemma SAVIGNY
(1779 – 1861) proposed that it was always necessary for the court to find
the ‘natural seat’ or ‘center of gravity’ for the case by identifying the
largest cluster of “connecting factors” to a particular legal system. If all
courts adopted such an international outlook, he reasoned, this would eliminate
forum shopping[1]
by producing the same choice of law no matter where the case was begun. But
unfortunately the solution has not yielded the desired result. Forum shopping
remains a problem, and neither legislators nor judges have been able to agree
on characterization issues, producing classifications that extend rather than
reduce international divergences. In an attempt to avoid obvious unjust results
in particular cases, some judges therefore created a number of public policy
exceptions to justify decisions.
PROBLEMS OF
CHARACTERIZATION
i. The first problem is Renvoi[2],
determining whether the question falls naturally within this or that judicial
category.
ii. The second problem is the interpretation of
what the connecting factor is. Connecting factor could be given different
meaning in different countries. Thus, what constitute a domicile in Nigeria may
not so constitute in for example, Italy.
iii.
The third problem is characterization itself i.e. to identify the department of
law under which some particular legal question fall in order to determine the
rule of law to apply.
Although various compromise solutions have been advocated, the principal
contenders are characterization by the LEX FORI and LEX CAUSAE. Another, the analytical
jurisprudence and comparative law approach is also discussed.
CHARACTERIZATION BY THE LEX FORI (LAW OF THE FORUM)
Writers such as Khan and Bartin believed that such characterization
should be governed by the law of the forum. That is, where a judge is faced
with the situation, the judge should characterize the lex fori i.e. domestic
law and the lex (causae) and apply the lex fori that is nearest in equivalent
to the lex causae. Khan and Batin believe that characterization must be done in
terms of law and not in terms of issues. They assert that the forum should
characterize rules of foreign law in accordance with the nearest equivalent in
its own domestic law. In Ogden V Ogden (1909) P.46, the court characterized by
the lex fori The argument in favor of this view is that if foreign law were to
be applied, LEX FORI would lose control over the application of its own
conflict rules and will lose power.
However, LEX FORI presents the following problems,
A.
Arguing by analogy from a rule of
domestic law to that of foreign law can be equated to engaging in an
objectionable mechanical jurisprudence resulting in the forum seriously
distorting the foreign law and applying it in cases where it need not be
applied and vice-versa. In future it may result in a case where the law to be applied
is neither that of the forum, the foreign law nor that of any other country.
B.
There is no solution for cases where
there is no close analogy to the foreign law or any institution in the domestic
law of the forum.
CHARACTERIZATION
BY THE LEX CAUSAE (LAW GOVERNING THE QUESTION)
This means that
where a judge is faced with a case, he should apply the foreign law which
governs the question. Writers such as WOLFF, DESPAGNET believe that
characterization must be governed by the appropriate foreign law (LEX CAUSAE).
WOLFF, a strong advocate of this school of thought is of the view that every
legal rule takes its characterization from the legal system to which it
belongs. In RE-MALDONADS (1954), the
English court of appeal was faced with the task of deciding whether the Spanish
government’s claim to the movables in England of a Spanish intestate who died
without a next of kin was a right of succession (in which the Spanish
government was entitled to the movable) or JUS REGALE (in which the English
crown was entitled). The court held that this question must be decided in
accordance with Spanish law with the result being that the Spanish government
was entitled.
However, this view presents the following
problem;
A. It
is a circular argument to say that foreign law governs the process of
characterization before the process of
characterization has led to the selection of foreign law
B. In
cases where there are two applicable foreign laws, which one would be applied
and what would be the basis of the forum adopting the characterization of one
over the other.
CHARACTERIZATION BY ANALYTICAL JURISPUDENCE
Writers such as Rabd believe that
characterization should be governed by the rules of analytical jurisprudence
and comparative law. That is, the judge should use the scope of the law to
determine and compare the law of the countries involved and choose the one
which will dispense justice more fairly. The argument in favor of this approach
is that judicial technique in conflict cases must be more international and
less insular than in domestic cases.
The arguments against this approach are as follow,
1. There
are very few principles of analytical jurisprudence and comparative law that
are of universal application. As KAHN-FREUND rightly opined, international
agreement on analytical concept is a utopia.
2. While
the study of comparative law may reveal differences between domestic laws, it
is hardly capable of resolving them. For example, comparative law may reveal
that parental consent to marry may sometimes affect formalities or the capacity
to marry. But how does it determine how these matters may be characterized
However,
solving characterisation problems is not confined to the above approaches.
There are alternative approaches which have been put forth by various scholars.
These are discussed in extensio
below:
AVOIDING
THE CHARACTERIZATION PROBLEMS BY IMPLEMENTING THE RULES OF RECOGNITION
The problem of
characterization can be solved by the legislator developing corresponding rules
on recognition of foreign acts or documents. An example is found in the
relevant succession law of Estonia which contains a general conflict rule on
succession, according to which the law of the state of the last residence of
the deceased generally applies to succession. Also, under this law a succession
certificate prepared in a foreign state is recognized in Estonia if the procedure
for the preparation and the legal effect thereof are comparable to the
provision of Estonia law concerning succession certificates. Thus, an
interesting solution can be achieved if the Nigerian legislature can adopt this
Estonian model at least in matters of succession. Though by this method, the
Nigerian court might be able to avoid recourse to the conflict rules, it is
still required to carry out a comparison between the Nigerian substantive law
and the relevant foreign law in other to evaluate whether a person is entitled
to inherit.
However, the recourse to recognition and
enforcement of foreign acts or documents does not always solve the
characterization problem since often such recourse is not possible, if a
relevant document or judgment does not exist.
EXCLUSION
OF THE FOREIGN LAW
Because the early system of
connecting factors was mechanical and inflexible, the results could offend a
court’s sense of justice. For example, with the development of motor car, the
classification of the cause as tort required the application of the LEX LOCI
DELICTI COMMISSI rule. The French court’s insistence on this linkage frequently
barred or severely limited relief for French citizens injured in countries that
had no developed law for the compensation of such victims. In BABCOCK
V JACKSON, 24ON.E 2D 279(NY1963), the New York court of appeals
abandoned the LEX LOCI DELICTI rule completely. Most jurisdictions were not so
radical, preferring to retain the framework of categories and choice of law
rules but leave public policy as the avoidance device.
This means that states will not
apply “foreign” law that offends the deeply held principles of forum’s state
legal system. For instance, it would be considered improper to give enforcement
to a law that defined the status of a person as a slave or as in the possession
of another e.g. for the purpose of sexual exploitation.
However, in cases involving alleged immorality or injustice, this rule
has been criticized as susceptible to abuse, for a court could characterize
almost any statute or rule as being offensive to the public policy of their
state.
THE MODERN APPROACH
Since the characterization system and the choice of law rule were
operating in an inflexible way, the solution has been to allow the growth of
judicial discretion within both sides of the system. Hence, most legal systems
have opted for the PROPER LAW APPROACH i.e. the identification and application
of the law that has the closest connection with the cause(s) of action. In
theory, this flexibility will preserve an international outlook and
multilateral approach by the courts and in jurisdictions that have adopted this
approach, the results are not unencouraging.
CONCLUSION
Asides LEX SITUS which determines
the characterization of property, there is hardly any consistent theory of
characterization. In MACMILLAN INC V. BISHOPSGATE INVESTMENT
TRUST PLC (NO3) (1996) 1WLR 387, a case which was characterized by the
LEX FORI, the dictum of AULD LJ is instructive;
“However classification of an issue and rule of law for this purpose
the underlying principle of which is
to strive for comity between different legal systems, should not be constrained
by particular notions or distinctions of the domestic law of the LEX FORI or
that of the competing system of law, which may have no counterpart in other
system. Nor should the issue be defined too narrowly, so that it attracts a particular
rule under the LEX FORI which may not be applicable under the other system.”
From the foregoing, this may look like a call for an international
application of the LEX FORI, but this may be applied to other concepts too.
Characterization should not be restricted but must be determined based on the
fact in issue.
REFERENCES
1.
Themes on conflict of laws- I.O Agbede
(1989)
2.
The conflict of laws- Morris
3.
http://en.m.wikipedia.org
[1]
Is
the informal name given to the practice adopted by some litigants to have their
legal case heard in the court thought most likely to provide a favourable
judgment.
[2]
Literally
meaning in French “send back” or “to return unopened” applies whenever a forum
court is directed to consider the law of another state.
