The writer of this report is Meltem Ece Oba (Koç College, Istanbul). The publish is being revealed concurrently on Conflictoflaws.web and on the EAPIL weblog.
On 20-21 March 2025, a convention on “Characterisation within the Battle of Legal guidelines” was convened at St Hilda’s School, Oxford. Below the auspices of the Institute of European and Comparative Regulation within the Regulation College of the College of Oxford, the convention was collectively organised by Dr Johannes Ungerer (College of Oxford and Notre Dame College in England), Dr Caterina Benini (Catholic College of Sacred Coronary heart, Milan) and PD Dr Felix Berner (College of Tübingen). The convention introduced collectively students and practitioners from a number of jurisdictions world wide.
The convention’s subject, characterisation, is the method for figuring out the character or class of a specific reason for motion (for example contractual, tortious, proprietary, company, matrimonial), in order that the right connecting issue might be employed which then factors to the relevant legislation or to the competent courtroom. Characterisation poses difficulties the place the motion is domestically unknown or falls in-between two classes and will thus be probably litigated in numerous fora or below totally different legal guidelines, resulting in totally different outcomes. Totally different strategies proposed for characterisation make this course of much more complicated. On this convention, individuals explored characterisation from historic, methodological, crucial, sensible, and additional views with the purpose to make clear a few of the most urgent and controversial problems with what arguably is essentially the most essential step for a courtroom when figuring out its worldwide jurisdiction and the relevant legislation.
Following the opening remarks by the three organisers, the primary presentation addressed the historical past of characterisation. Professor Martin Gebauer (College of Tübingen) explored three most important themes: hanging parallels in time and content material, sturdy contrasts, and eventually the tensions in characterisation. Gebauer initially touched upon the ‘discovery’ of characterisation as ‘a toddler of the nineties of the nineteenth century’ within the works of Franz Kahn and Etienne Bartin. This was adopted by the examination of the internationalist approaches. This led him to debate autonomous characterisation and purposeful comparative legislation approaches because the ‘third route’ via the work of Scipione Gemma and the modified views of Franz Kahn. Gebauer highlighted that the doctrinal views on this decade mirrored the ideological battles over the foundations of personal worldwide legislation. He additional mentioned the developments in characterisation within the twentieth century, such because the developments in comparative legislation and Rabel’s strategy to characterisation. Lastly, Gebauer thought-about characterisation in transnational and European legislation and its contribution to the homogenous understanding of conflict-of-laws guidelines throughout the EU. Within the dialogue following his presentation, the challenges of comparative legislation methodology and the necessity to think about a variety of views on characterisation (as an alternative of a single one) had been debated amongst different points.
The next shows had been devoted to the method and explicit issues of characterisation. The paper given by Professor Andrew Dickinson (College of Oxford) raised the query of “Is there any magic in characterisation?” with a give attention to the courts of England and Wales. He offered seven steps of coping with how the courts should have interaction with characterisation. Utilizing a metaphor, he in contrast the makes an attempt of describing the characterisation course of to an try of describing the elephant within the Indian parable of ‘blind males and an elephant’. On this regard, Dickinson underlined that one can solely present an informative device package and can’t describe a full strategy of characterisation. He emphasised that every one components of a given rule and most significantly its objective should be taken under consideration when characterising it. On this regard, he defined that ‘substance’ ought to be valued greater than ‘type’ and that ‘labels’ mustn’t play a significant function. Dickinson thought-about characterisation as being extra of a sensible difficulty from the frequent legislation perspective, and a strategy of decoding a rule or a specific subset of settings; he thus concluded that there is no such thing as a ‘magic’ in characterisation. Members used the following dialogue for example to distinction the Frequent legislation place with the Civilian approaches and to query the function of the choose and the events when characterising a declare.
The subsequent presentation was delivered collectively by Affiliate Professors Brooke Marshall and Roxanna Banu (each College of Oxford) on characterisation’s function within the jurisdictional inquiry in English courts. They started with an outline of the cases the place the selection of legislation questions are raised on the jurisdictional stage within the context of granting permission for service out of the jurisdiction, exploring the related gateways within the Apply Path 6B of the Civil Process Guidelines. Marshall critically examined the UK Supreme Court docket choice in UniCredit Financial institution v RusChemAlliance, demonstrating how the selection of legislation issues have an effect on the worldwide jurisdiction of English courts. Banu, from a extra theoretical perspective, then mentioned the a priori software of the lex fori to jurisdictional issues and the significance of theorising characterisation to grasp the explanation why jurisdiction and substance are to be distinguished. The presentation was adopted by a fruitful dialogue which, amongst different points, highlighted the problematic round reasoning employed on the intersection of alternative of legislation and jurisdictional characterisation.
The final paper of this session was introduced by Professor Pietro Franzina (Catholic College of Sacred Coronary heart, Milan) on ‘renvoi de characterisation’, that’s, characterisation for the needs of renvoi. In the beginning, he set the scene with regard to the that means of renvoi and characterisation in addition to the excellence between major and secondary characterisation. Franzina defined that the place the personal worldwide legislation of the discussion board contemplates the potential of renvoi, the battle of legal guidelines conceptions of a overseas relevant legislation also needs to be appreciated. In that regard, Franzina demonstrated via examples how the ‘second characterisation’ ought to mirror the taxonomy of the designated authorized system (and, in some cases, the taxonomy of the totally different system specified below the conflict-of-laws guidelines of the latter system). He defined that characterisation for the needs of renvoi shouldn’t be given as a lot consideration right now because it used to obtain, particularly because of the higher weight that substantive coverage concerns have progressively gained in personal worldwide legislation. The following dialogue addressed issues over consistency within the interpretation of connecting elements in jurisdictional and relevant legislation issues.
The subsequent session of the convention consisted of 4 shows on challenges of characterisation in particular areas. The primary speaker, Assistant Professor Joanna Langille (College of Western Ontario), targeted on the excellence between substance and process. On this regard, Langille critically examined the usage of the standard frequent legislation distinction of rights and treatments for characterisation functions. She took a Kantian rights-based strategy to elucidate that the concept of proper and treatment basically merged or ‘shaded into’ each other. Langille argued for an alternate distinction between substance and process based mostly on the character of personal rights. The adjudication course of via which that dedication is made ought to be subjected to the lex fori because the legislation of the neighborhood. In that sense, she seen procedural legislation as being about publicity or the capability of the courts to make legislation for the neighborhood as a complete and therefore working on a vertical airplane. Alternatively, the place the courtroom is confronted with a query that relates solely to the horizontal relationship and, thereby, the reciprocal rights and duties between the 2 events, overseas substantive personal legislation ought to apply. Accordingly, the ‘provisions which can be determinative of the rights of each events’ had been thought-about as substantive, while ‘the equipment of the discussion board courtroom’ as procedural. She exemplified her views by reference to statutes of limitation. Among the many points raised through the subsequent dialogue had been the function of procedural legislation and of the lex fori in gentle of state sovereignty in addition to the transcending boundaries of substance and process in cases like limitation statutes.
The subsequent paper was delivered by Professor Yip Man (Singapore Administration College) on the characterisation of equitable doctrines. Whereas characterisation might need to start out from a home legislation understanding, she embraced a purposeful strategy in characterisation and argued for the pursuit of uniformity with an internationalist spirit and due to this fact in opposition to being constrained by home legislation notions. In that regard, she emphasised the significance of understanding the perform of fairness in arriving on the acceptable class. The conceptual variety and complexity of equitable doctrines in Frequent legislation programs each in battle of legal guidelines and home legal guidelines had been mentioned. Yip Man highlighted the target of figuring out the predominant attribute of a authorized establishment, which she illustrated by reference to each remedial and institutional options. The connection between the events underlying the equitable obligations and treatments had been additionally mentioned as probably being the predominant options to be taken under consideration. Lastly, Yip Man analysed two latest choices, Xiamen Xinjingdi Group Co v Eton Properties of the Hong Kong Court docket of Last Enchantment and Perry v Esculier of the Singapore Court docket of Enchantment. The dialogue addressed the problem of characterising equitable doctrines in Civilian courts, potential benefits when differentiating between substance and process when characterising equitable ideas, and the ‘fusion’ strategy.
Shifting on to the insightful shows by two academically distinguished practitioners, Dr Alex Critchley (Westwater Advocates, Edinburgh) spoke concerning the characterisation of contractual preparations within the context of household legislation the place a few of the most difficult questions come up. Critchley targeted on two most important points, specifically the best way household legislation agreements differ from different contracts (or as as to whether they are often characterised as contracts in any respect) and the extent to which they relate to different fields of legislation akin to firm legislation. On this context, he defined the worldwide framework for contracts in worldwide household legislation by exploring the EU and HCCH guidelines. He then exemplified household legislation agreements and their totally different types akin to nuptial agreements, care preparations for kids or agreements addressing company or property relationships between members of the family. This led to a dialogue amongst all individuals about alternative of legislation guidelines for nuptial agreements, the characterisation of upkeep agreements, the 2007 Hague Protocol on the Regulation Relevant to Upkeep Obligations, and case legislation referenced by Critchley, akin to F v M 2021 SLT 1121.
Taking a look at a really totally different space of legislation, Dr Thomas Klink (Larger Regional Court docket of Stuttgart) addressed characterisation in worldwide M&A disputes, the place points come up in judicial follow particularly when the acquisition settlement didn’t include a related and legitimate alternative of legislation clause. In his presentation Klink initially examined the characterisation of buy agreements each within the type of a ‘share deal’ or – much less frequent – an ‘asset deal’. He hinted on the tough ramifications if the promoting shareholder is a pure particular person and could possibly be thought-about to be a client for the needs of Article 6 of the Rome I Regulation. He then moved on to characterisation challenges encountered within the preparation of the transaction and in respect of non-disclosure agreements/letters of intent, entry to info, exclusivity, and the problems arising from the termination of negotiations akin to break-up charges. Klink additionally touched upon firm legislation points such because the switch of shares. Publish-M&A disputes akin to fraud circumstances had been additionally addressed. Wanting forward, he expressed his expectation that the variety of M&A disputes within the newly established Worldwide Business Courts will improve, which was then additionally mentioned additional by the convention individuals. Different points within the dialogue included the patron standing of buyers, the parallels between alternative of legislation and jurisdictional characterisation in M&A disputes, and the most recent case-law developments on concurrent claims. This concluded a day stuffed with fruitful debates.
The second day of the convention started with a session on what the organisers had termed rethinking characterisation, exploring novel and extra crucial approaches to characterisation.
The primary speaker on this session was Professor Jeremy Heymann (College of Lyon III Jean Moulin). Heymann’s presentation was entitled ‘characterisation from a unilateralist perspective’. He outlined the strategy of unilateralism in distinction to multilateralism. Heymann argued that, from a methodological perspective, it’s essential to first establish a ‘authorized order of reference’ after which to find out if the authorized difficulty at hand and the details of the case fall below the scope of this ‘authorized order of reference’. While indicating that the ‘authorized order of reference’ of the choose ought to be the lex fori in most cases, he additionally highlighted that the legislation to be taken under consideration ought to correspond to the expectation of the events. By means of this conception of unilateralism Heymann argued that the legislation relevant to characterisation ought to be ‘rather more the lex causae than lex fori’. Within the subsequent dialogue, the designation of the ‘authorized order of reference’ was debated along with the challenges of making an allowance for the expectations of the events. Heymann additional commented on how some EU Laws may present for unilateral guidelines on sure personal worldwide legislation issues, such because the GDPR and the Air Passenger Regulation.
The second presentation on this session was delivered collectively by Philomena Hindermann and Professor Ralf Michaels (each Max Planck Institute for Comparative and Worldwide Non-public Regulation, Hamburg) with the provocative title ‘In opposition to Characterisation?’. Michaels started the paper with a critique of the present strategy to characterisation close to the English choice in Macmillan v Bishopsgate Funding Belief. He defined how such a strategy the truth is conceals the actual essence of authorized reasoning behind characterisation. He then touched upon the makes an attempt of the American Conflicts Revolution to beat characterisation via curiosity evaluation. While acknowledging that overcoming characterisation shouldn’t be potential, he argued for taking account of the insurance policies behind authorized guidelines within the strategy of characterisation. On this regard, Michaels criticised a strategy of characterisation via preliminary classes and argued as an alternative that characterisation ought to be an ‘finish consequence’. Constructing on this discovering, Hindermann continued with the query as as to whether there could possibly be such a factor as ‘post-categorical characterisation’. She additionally criticised characterisation as reflecting sure presumptions and as omitting the insurance policies and numerous features of authorized guidelines. Contemplating characterisation as an epistemological course of she then questioned the necessity for classes and advocated for embracing a non-exhaustive / post-categorical purposeful strategy. Subsequently, as an alternative of lowering characterisation to a pre-determined taxonomy, she argued that classes ought to be constructed based mostly on every case by the use of trying on the features of the authorized establishment at hand. Members to the dialogue engaged with the explanation why the American realist considering strategy may or won’t be compelling and in addition deepened the dialogue from an EU perspective. The thought of classes below nationwide legal guidelines having an open-ended nature versus close-ended classes was additional mentioned on the one hand, in addition to the issues of authorized uncertainty however.
The final speaker of this session was Professor Veronica Ruiz Abou-Nigm (College of Edinburgh). Her presentation lined characterisation as a device to handle variety and therefore she targeted on an epistemic change of views in characterisation. Her paper began off with an evidence of the creation of a brand new delict below Scottish substantive legislation in relation to home violence. Moreover, Ruiz Abou-Nigm thought-about a potential interaction with the 1980 Youngster Abduction Conference the place below Article 13(1)(b) home abuse may represent a motive to refuse the return of a kid. Recognition and enforcement of civil safety orders had been additionally mentioned via this lens. As a conclusion Ruiz Abou-Nigm referred to as for an internationalist strategy to characterisation that takes under consideration feminist views in addition to the interaction of cultures. Ruiz Abou-Nigm argued that as an alternative of taking the lex fori as a place to begin, one ought to embrace an epistemological and pluralistic strategy. In her view, the ‘order of reference’ of the choose in characterising a matter ought to be rather more complicated and worldwide than the classes below the lex fori. Members requested her how this inter-cultural strategy ought to have an effect on the applying of the brand new Scottish legislation in a cross-border setting and raised the issue that embracing an inter-cultural strategy won’t look like supportive of a feminist normative strategy. Members additionally instructed ways in which may foster pluralistic considering with a feminist strategy and commented on how the Istanbul Conference on Stopping and Combating Violence In opposition to Ladies and Home Violence could possibly be used for characterisation or interpretation.
The final session of the convention targeted on the interaction of personal and public worldwide legislation. Professor Alex Mills (College School London) spoke about personal worldwide legislation treaty interpretation and characterisation. He began by analyzing the English frequent legislation strategy to characterisation with the intention to draw comparisons between the methodology within the frequent legislation concerning the characterisation and the interpretation of worldwide treaties. He defined that, since treaties are carried out via nationwide legal guidelines in dualist programs, statutory interpretation is required of their software while ideas of worldwide treaty interpretation are additionally taken under consideration. Mills argued that worldwide treaty interpretation has commonalities with the frequent legislation approaches to characterisation, however that the choose ought to acknowledge the place alternative of legislation guidelines belong to a world physique of legislation. He used the 2019 Hague Judgments Conference for instance and pointed to its explanatory report which signifies the ‘worldwide spirit’, echoing the English frequent legislation strategy. Within the subsequent dialogue, the internationalist interpretation was usually welcomed however its sensible implications had been questioned. The concept that worldwide treaty interpretation was reflecting the frequent legislation strategy was challenged by Civilian representatives, although Continental European approaches may be understood as being too ‘inflexible’ from the perspective of the English frequent legislation doctrine. Members additionally pointed to the method through which the 2005 and 2019 Hague Conventions had been drafted and the way the consistency within the internationalist strategy in each Conventions mirrored a standard understanding of the drafters.
The ultimate paper of the convention was delivered by Professor Marta Pertegás Sender (Maastricht College and the College of Antwerp) mentioned how characterisation questions had been addressed on the Hague Convention for the needs of drafting Conventions. Three most important examples got: first, Pertegás Sender defined that drafters more and more make use of provisions that regulate the scope of a Conference. As a second instance of cases the place the HCCH takes under consideration characterisation issues, she demonstrated how slightly broad phrases are most popular within the drafting of Conventions’ provisions that may set up a standard floor for contracting states. Lastly, she identified the truth that there doesn’t exist a lex fori for the drafters of such worldwide Conventions. Sender additionally highlighted that particularly within the final twenty years all the Conventions emphasise the autonomous interpretation and the promotion of uniformity of their software. The choice for broad phrases was challenged within the subsequent dialogue as being too obscure, particularly within the absence of a particular courtroom system for the interpretation of HCCH Conventions. Curiously, the implications of ‘unfavourable characterisation’ had been mentioned in relation to the points that are saved outdoors of the scope of the HCCH Conventions, in distinction to a real or ‘optimistic characterisation’ of what’s throughout the scope of a specific Conference.
Concluding the convention proceedings, the three organisers expressed their gratitude to all audio system for his or her papers and to all attendees for his or her fruitful contributions to the dialogue.
