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23 Case W. Res. J. Int'l L. 479 (1991)
A Comparative Approach to the Conflict of Characterization in Private International Law

handle is hein.journals/cwrint23 and id is 487 raw text is: A Comparative Approach to the Conflict of Characterization in Private International Law Vdronique Allarousse* INTRODUCTION The fundamental importance of characterization in private interna- tional law is derived from the postulate that characterization controls the solution of the conflict of laws. Private international law sets out con- necting categories by deciding, for instance, that the status and capacity of persons is governed by their national laws, that contracts are governed by the law chosen by the agreeing parties and that property comes under the lex rei sitae. Consequently, when a court has to determine the law applicable to a factual situation, it must first place the specific action into its correct legal category before selecting the proper law. The characterization process is not unique to private international law and is, in fact, inherent to all legal reasoning and judicial determina- tions. However, what is unique to private international law is the conflict of characterization, which arises when the legal orders involved do not offer similar classifications. Countries frequently differ on the question of what constitutes immovable and movable property, on the meaning of capacity, form, substance, procedure, and in their definition of various other terms upon which the application of foreign laws depend. The forum and the foreign country may have the same conflict rule and may interpret the connecting factor in the same way, but may disa- gree on the result because they characterize the question differently. For instance, there may be a conflict of characterization when the question of whether a will is revoked by marriage is regarded by the forum state as a question of matrimonial law and by the foreign system as a testamentary issue. The question is what law determines the meaning of the above terms in order to characterize the subject matter of the controversy at issue and allow a court to choose the substantive law applicable to that controversy. Until this is determined, it is impossible to apply the appro- priate conflict rule. It must be remembered that there is no absolute relationship be- tween the domestic process of characterization and the international pro- * Associate, Sullivan & Cromwell, New York.

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