"An English court should solve problems of characterisation by applying the only concepts with which it is familiar, namely those of the forum." Discuss the proposition critically with reference to decided cases
- Classification of the cause of action
- How should the court solve problems of characterisation? Alternative theories
- The lex fori theory
- The lex causae theory
- Conclusion: English courts and characterisation
The English conflict of laws is a body of rules, whose purpose is to assist an English court to deal with cases tried before, and which contain a foreign element. It consists of three main topics: (i) the jurisdiction of an English court, in the sense of its competence to hear and determine a case; (ii) the selection of the appropriate rules of a system of law, English or foreign, which should apply in deciding a case over which it has jurisdiction (in appropriate cases the English court can apply a foreign law to resolve a legal issue. The rules governing this selection are known as 'choice of law' rules); and (iii) the recognition and enforcement of judgments rendered by foreign courts or awards of foreign arbitrations. Having established the choice of law rules can lead to the application of either English or a foreign law, this essay will explain why an English court should solve problems by not just applying the only concepts with which it is familiar, namely those of the forum. In the first part, i will describe the process of classification of a cause of action and will outline some of the difficulties this process encounters. In the second part, i will compare the lex fori and the lex causae theories, the two main-stream theories used by the English courts when classifying. We will do this with the aim of proving that English courts shouldn't, and in fact cannot, on every occasion apply English concepts.