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Cheshire, North and Fawcett: Private International Law, 15th Edition by Grušić, Uglješa; Heinze, Christian; Merrett, Louise; Mills, Alex; Otero García-Castrillón, Carmen; Sophia Tang, Zheng; Trimmings, Katarina; Walker, Lara (28th September 2017)

Part II Preliminary Topics, 3 Classification

Paul Torremans

From: Cheshire, North and Fawcett: Private International Law (15th Edition)

Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara Walker
Edited By: Paul Torremans, James J. Fawcett

Subject(s):
Choice of law clauses — Marriage — Limitations on jurisdiction

(p. 41) Classification1

1.  Introduction

In a case containing a foreign element, the English court will have to examine various matters in sequence. First, it will have to be determined that the English court has jurisdiction both over the parties and the cause of action. The detailed rules on jurisdiction are discussed later.2 Suffice it to say at this stage that different jurisdiction rules may apply depending on the cause of action. That cause of action needs therefore to be classified, eg as a contractual or tortious cause of action, to determine which rule of jurisdiction should apply to the case. Then, having satisfied itself that it possesses jurisdiction, the court must next determine the juridical nature of the question that requires decision. Is it, for instance, a question of breach of contract or the commission of a tort? Until this is determined, it is obviously impossible to apply the appropriate rule for the choice of law and thus to ascertain the applicable law. This is the first issue of classification to be discussed in this chapter—classification of the cause of action. The court, having done this, must next select the legal system that governs the matter. This selection will be conditioned by what has aptly been called a connecting factor,3 ie some outstanding fact which establishes a natural connection between the factual situation before the court and a particular system of law. The connecting factor varies with the circumstances. If, for instance, a British subject dies intestate, domiciled in France, leaving movables in (p. 42) England and land in Scotland, his movables will be distributed according to the law of France because of his domicile in that country; but Scots law, as being the law of the situs, will determine the succession to the land. This raises the second issue of classification to be examined here—classification of a rule of law. This is the identification of the department of law under which a particular legal rule falls, in order to ascertain whether it falls within the department with regard to which the chosen law is paramount.4

2.  Classification of the Cause of Action

(a)  Meaning of classification

The “classification of the cause of action” means the allocation of the question raised by the factual situation before the court to its correct legal category. Its object is to reveal the relevant rule for the choice of law.5 The rules of any given system of law are arranged under different categories, some being concerned with status, others with succession, procedure, contract, tort and so on, and until a judge, faced with a case involving a foreign element, has determined the particular category into which the question before him falls, he can make no progress, for he will not know what choice of law rule to apply. He must discover the true basis of the claim being made.6 He must decide, for instance, whether the question relates to the administration of assets or to succession, for in the case of movables left by a deceased person, the former is governed by the law of the forum, the latter by the law of the domicile. Whether undertaken consciously or unconsciously, this process of classification must always be performed. It is usually done automatically and without difficulty. If, for instance, the defendant is sued for the negligent damaging in France of the claimant’s goods, the factual situation before the court clearly raises a question of tort.

(b)  Difficulties

Occasionally, however, the matter is far from simple. In the first place, it may be a case near the line in which it is difficult to determine whether the question falls naturally within this or that judicial category. Secondly, it may be a case where English law and the relevant foreign law hold diametrically opposed views on the correct classification. There may, in other words, be a conflict of classification, as, for instance, where the question whether a will is revoked by marriage may be regarded by the forum as a question of matrimonial law, but by the foreign legal system as a testamentary matter.7

These two difficulties are well illustrated by the historic Maltese Marriage case,8 decided by the Court of Appeal at Algiers in 1889, which made the problem of classification a fashionable subject of study.

A husband and wife, who were domiciled in Malta at the time of their marriage, acquired a French domicile. The husband bought land in France. After his death his widow brought an (p. 43) action in France claiming a usufruct in one quarter of this land. There was uniformity in the rules for the choice of law of both countries: succession to land was governed by the law of the situs, but matrimonial rights were dependent on the law of the domicile at the time of the marriage.

The first essential, therefore, was to decide whether the facts raised a question of succession to land or of matrimonial rights. At this point, however, a conflict of classification emerged. In the French view the facts raised a question of succession; in the Maltese view a question of matrimonial rights. When a conflict of this nature arises it is apparent that, if a court applies its own rule of classification, the ultimate decision on the merits will vary with the country in which the action is brought. On this hypothesis, the widow would have failed in France but have succeeded in Malta.9

The crucial question, therefore, is: on what principles do English judges classify the cause of action? Or, to put it in another way, according to what system of law must the classification be made? Must it be made according to the internal law of England, on the ground that the internal rules and the rules of private international law in any country are based on the same legal conceptions?10 It is arguable, for instance, that when English private international law submits intestate succession to movables to the law of the deceased’s domicile, the expression “intestate succession” must be given the meaning that it bears in English internal law and not a more extensive meaning than may be attributed to it in the foreign domicile. In opposition to this view, which had wide support, it has been suggested that classification must be based on the “essential general principles of professedly universal application” of analytical jurisprudence and comparative law.11 But, although it may be desirable to solve the problem in this scientific manner, it is scarcely practicable to do so whilst there are no commonly agreed general jurisprudential principles.

(c)  Basis on which classification is made

There can be little doubt that, in practice, classification of the cause of action is effected on the basis of the law of the forum. Thus, by application of the principles of English law, an English judge makes an analysis of the question before him and, after determining its juridical nature in accordance with those principles, assigns it to a particular legal category.12 Or, as Auld LJ put it in Macmillan v Bishopsgate13: “the proper approach is to look beyond the formulation of the claim and to identify according to the lex fori the true issue or issues thrown up by the claim and defence”.

Although English law principles are being applied here, the case is in fact one which contains a foreign element, and so the classification which is made will not necessarily be the same as that which would be made in a purely domestic case.14 In this context, its object is to serve (p. 44) the purposes of private international law and, since one of the functions of this department of law is to formulate rules applicable to a case that impinges on foreign laws, it is obviously incumbent on the judge to take into account the accepted rules and institutions of foreign legal systems. It follows, therefore, that the judge must not rigidly confine himself to the concepts or categories of English internal law for, if he were to adopt this parochial attitude, he might be compelled to disregard some foreign concept merely because it was unknown to his own law. The concepts of private international law, such as “contract”, “tort”, “corporation”, “bill of exchange”,15 must be given a wide meaning in order to embrace “analogous legal relations of foreign type”.16 In the words of one author:

The various legal categories, into one of which the judge must decide that the question falls before he can select his conflicts rule, must be wider than the categories of the internal law, because otherwise the judge in a conflicts question will be unable to make provision for any rule or institution of foreign law which does not find its counterpart in his own internal law, and thus one of the reasons for the existence of the science of conflict of laws will be defeated.17

Two examples will show that English judges have been prepared to solve the problem of classification in this broad spirit. In De Nicols v Curlier18 the facts were as follows:

A couple, French by nationality and by domicile, were married in Paris without making an express contract as to their proprietary rights. Their property, both present and future, thus became subject by French law to the system of community of property. The husband died domiciled in England, leaving a will which disregarded his widow’s rights under French law. The widow took proceedings in England to recover her community share.

The rule of English private international law is that the proprietary rights of a spouse to movables are governed primarily by any contract, express or implied, that the parties may have made before marriage. Failing a contract, the rights are determined by the law of the matrimonial domicile of the parties. Thus the problem of classification was whether the right claimed by the widow was to be treated as contractual or testamentary, for only after that had been decided would it be possible to choose between the French law governing the contract and the English law governing testamentary questions. It was clear that in the eyes of English internal law no contract had been made, but the House of Lords held that according to French law a husband and wife are bound by an implied contract to adopt the system of community, despite the absence of an express agreement to that effect. Thus the court, by its readiness to recognise a foreign concept, widened the category of contracts as understood by English internal law.

A second illustration of the international spirit in which English judges fulfil the task of classification is that, when required to determine whether or not the property in dispute is to be regarded as land and thus subject to the law of the situs, they abandon the distinction between realty and personalty in favour of the more universal distinction between movables and immovables.19 Thus land in England, subject to a trust for sale but not yet sold, is regarded under the domestic doctrine of conversion as already possessing the character of personalty. If, therefore, the owner dies intestate domiciled abroad, it is arguable that he has died entitled not to land, but to pure personalty, and that the relevant intestacy rules are those (p. 45) of the law of his domicile, not of the law of the situs. Despite this, it is held that his right must be classified as a right to an immovable to be governed by the law of the situs.20

There is, however, one type of case in which the English judge will probably not make the classification on the basis of English law as the law of the forum. This is where the only possible applicable law is either the law of country X or the law of country Y and both these laws classify the question in the same manner, though in a manner different from that usual in English law.21

3.  Classification of a Rule of Law

(a)  The problem described

Once the main legal category has been determined the next step is to apply the correct choice of law rule in order that the governing law may be ascertained. As we have seen, the correct rule will depend on some connecting factor, such as domicile or the situation of immovables, which links the question to a definite legal system. X, for instance, dies intestate domiciled in France, leaving movables in England. Since he has been connected by domicile with France, the operative rule for the choice of law is, therefore, that the question of intestate succession must be governed by French law. However, at this stage the second process of classification has to be gone through. It may be necessary to identify the legal category into which some particular rule falls, in order to discover whether it falls within a category with regard to which the law selected by our choice of law rules is paramount. That law has a certain sphere of control, ie it governs some, but not all, aspects of the juridical question as classified by the English court in the sense already indicated. Thus, for instance, in an action brought in England for breach of a contract made and performable in France, French law governs matters of formal and essential validity, but all questions of procedure are subject to English law. A French procedural rule is outside the sphere of control of the chosen French law relating to matters of substance. If, therefore, a particular French rule is pleaded and if it is doubtful whether it relates to procedure or to substance, its true nature must obviously be determined. It must be ignored if it is procedural in character, otherwise it must be applied. Likewise, an English domestic rule is excluded if it relates to form or substance, but is applicable if it is procedural in nature.22

It should be kept in mind that in this context the term used for a legal category is merely a useful way of referring to a bundle of issues that are regarded as appropriate for determination by a certain law. The boundaries are therefore flexible and the court should consider the rational of the English conflict rule, as well as the purpose of the substantive rule that is to be classified when deciding whether or not the conflict rule covers the substantive rule at issue. In case there is no appropriate conflicts rule that can cover the substantive rule a new conflict rule should be created.23

(p. 46) This kind of classification is also found in EU law and it is important to note that the CJEU often resorts to the principle of autonomous interpretation to determine the exact meaning and scope of a term used in EU legislation.24 The same term may therefore get another scope for the purposes of classification.25 The EU private international law Regulations26 are good examples. Sometimes they include their own definitions of certain concepts and on other occasions it is left to the CJEU to provide autonomous interpretations of them and of their scope.27 International conventions also often include their own definitions of certain concepts, which can influence or even determine the classification issue.

(b)  Basis on which classification is made

The critical and controversial question is the basis on which the classification should be made, and illustrations from the authorities will now be given to show how English judges have dealt with the matter. It is, however, essential to appreciate that a rule either of the foreign chosen law or of English law itself may require to be classified and that the line of reasoning is not necessarily the same in each of these situations.

(i)  Classification of an English rule

Leroux v Brown28 illustrates the process applied to an English rule:

By an oral agreement, made in France, the defendant, resident in England, undertook to employ the plaintiff in France for a period longer than a year. The substantive validity of the contract was governed by French law, by which the contract was valid as to substance. The defendant pleaded, however, that the plaintiff’s claim to recover damages was unenforceable in England, since the Statute of Frauds provided that “no action shall lie upon a contract not to be performed within the space of one year from the making thereof” unless the agreement or some note thereof was in writing signed by the defendant.

This plea required the court to decide whether the statutory rule was of a procedural character.29 If so it was fatal to the plaintiff, for being a rule of English procedure it was necessarily binding in an English action. Unfortunately, the members of the court took the line of least resistance and, ignoring the larger issues involved, confined their attention to the literal wording of the statute. The reasoning of Maule J, for instance, lacked nothing in simplicity: the statute provides that no action shall be brought on an agreement not to be (p. 47) performed within a year, unless it is evidenced by a written memorandum; the present agreement is of this nature and there is no memorandum; “the case, therefore, plainly falls within the distinct words of the statute”.30

The defect of this reasoning lay in basing classification on English internal law instead of on private international law. The court failed to appreciate that the classification of the statutory rule was required for an international case, not for a purely domestic one. The issues are different. The fact that a rule has been classified, or that it ought properly to be classified, in a particular way for a domestic transaction containing no foreign element, does not preclude an entirely different approach when a question of private international law is involved. In this latter type of case, a condition precedent to the classification of an English rule is to ascertain the policy that the rule is designed to serve. Was it, for instance, the policy of the Statute of Frauds that no oral contract of guarantee should be actionable in England, irrespective of the law by which it was governed or of the country in which it was performable? Unless this was clearly the policy of the Act, it was an unfortunate application of mechanical jurisprudence to read the words—no action shall be brought—in a rigid and literal sense and thus to deprive the plaintiff in that case of a right recognised as valid and enforceable by the law with which it was alone connected. To do this is to strike at the roots of private international law and to defeat one of its fundamental objects. At the present day, when the principles of this part of the law are more mature and its purpose better understood, it is believed that a court, if required to classify a rule of English law, would have regard to the foreign features of the case and would solve the problem more appropriately than the Court of Common Pleas did in Leroux v Brown.31

(ii)  Classification of a foreign rule

(a)  Parental consent to marry

The law reports contain several examples of the classification of a foreign rule. The best introduction to this issue, however, is provided by the controversial Court of Appeal decision in Ogden v Ogden:32

This concerned a domiciled Frenchman, aged nineteen, who married a domiciled Englishwoman, in England, without first obtaining the consent of his parent, as required by Article 148 of the French Code. The husband obtained an annulment of this marriage in a French court on the ground of want of consent. The wife subsequently went through a ceremony of marriage in England with a domiciled Englishman, who, in the present action, petitioned for a decree of nullity on the ground that at the time of the ceremony the respondent was still married to the Frenchman.

The factual situation, therefore, raised the question of the validity of the French marriage. There were two connecting factors: the husband was domiciled in France; the marriage was solemnised in England. Guided by these factors, English private international law indicated two rules: “firstly, the essential validity of the marriage, including the capacity of the husband, must be governed by French law; secondly, the formal validity of the marriage ceremony must be tested by English law”.

(p. 48) Only the essential validity of the marriage was controlled by French law. It followed, therefore, that if the purpose of Article 148 was to incapacitate the husband from matrimony unless he complied with its provisions, it affected the essential validity of any marriage that he might contract and should be granted extra-territorial recognition.

So far all is straightforward. Moreover, there is no difficulty if both English and French law agree on the juridical nature of the consent rule and therefore on its sphere of application. Complications arise, however, when the true nature of the rule is doubtful. The difficulty then is to discover the reasoning by which a solution must be reached. Is, for instance, the French classification to be followed blindly? Again, is the English view of an analogous rule in the internal law of England, presuming that one exists, to be adopted? Neither alternative is satisfactory. The rational method is for the English judge to examine the rule in its foreign setting, in order to ascertain its intended scope, the policy by which it has been dictated and the part that it is designed to play by the French legislature.

Only by this process can full and proper effect be given to the English choice of law rule. French law, having been chosen to govern essential validity, must be allowed within reason to determine which of its domestic rules are essential rather than formal. To take the opposite course and to uphold a marriage, which is essentially void under the personal law of the parties, by attributing a merely ceremonial character to a rule regarded as essential by that law would not only be the negation of so-called comity, but would incongruously debilitate the English choice of law rule. The only reservation is that a foreign classification must be repudiated, if to adopt it would contravene the English doctrine of public policy or be repugnant to some fundamental principle of English law.

In Simonin v Mallac,33 decided forty-eight years before Ogden v Ogden, the court was confronted with a different French provision that was obviously not intended to affect capacity in the strict sense of the word.

Two domiciled French persons came to England and went through a ceremony of marriage in the English form, returning to Paris two or three days later. The wife subsequently petitioned the English court for a decree of nullity on the ground of want of parental consent. By French law, the parties were capable of inter-marriage, but they were required to ask advice of their parents, a request which had to be repeated each month for three months if the parents were adverse to the marriage. At the end of the fourth month, the marriage might take place despite parental disapproval.

It was clear that absence of the consent required by this rule did not render the parties incapable of inter-marriage. The obtaining of consent was in essence an additional formality and, since the form of the ceremony is a matter solely for the law of the place of celebration, the marriage was rightly adjudged to be valid.34

In Ogden v Ogden, however, the relevant French rule was to this effect: “the son who had not reached the age of twenty-five could not contract marriage without the consent of his father and mother”.

Although it seems almost unarguable that the object of this provision was to impose a total incapacity on the parties unless they obtained parental consent, the Court of Appeal held the marriage to be valid, since the ceremony had been performed in accordance with the requirements of English law, the law of the place of celebration. The latter marriage between the respondent and the Englishman was therefore bigamous. It is submitted that this case was (p. 49) not on the same footing as Simonin v Mallac, and that it is opposed to established principles. For the English court to classify the rule as formal was in effect to infringe the principle that the essential validity of a marriage falls to be determined by the law of the domicile.35 The most unfortunate feature of Ogden v Ogden is its suggestion that every rule requiring parental consent to a marriage must be classified as formal.36

(b)  Bona vacantia

Re Maldonado’s Estate37 provides an outstanding example of a foreign rule being construed in its context, with a view to deciding whether it fell within the sphere of control of the foreign governing law. The facts were these: a person died intestate domiciled in Spain leaving assets to the extent of some £26,000 in England. By Spanish law those assets passed to the Spanish state, since the deceased left no relatives entitled to take them by way of succession.

The English choice of law rule applicable to this factual situation is that intestate succession to movables must be determined according to Spanish law as being the law of the domicile. Therefore, the sphere of control of Spanish law in the instant case was confined to matters of succession, and the problem was whether the Spanish rule under which the assets passed to the state was to be classified as a rule of succession.

At this point it is pertinent to notice that, though the movables of a deceased owner who dies intestate without leaving recognised successors pass to the state in the great majority of countries, yet the capacity in which the state takes is not uniform throughout the world. In some countries, such as Italy and Germany, it has been regarded as an heir taking by way of succession; in others, such as Turkey, Austria and formerly England, the State has been held to act in its capacity as the paramount sovereign authority and confiscates the movables as being bona vacantia, ownerless goods.38 If, for example, the deceased died domiciled in Turkey, the Turkish law, since it governs only questions of succession and since it does not regard the State as a successor, has been considered to have no say in the matter and movables found in England passed to the Crown.39

The provision of the Spanish code applicable to the facts of the Maldonado case was that “The State shall inherit” movables. Moreover, the expert evidence accepted by the court showed that in the Spanish view this was a true case of taking by way of succession, not a case of seizing ownerless goods. Thus the rule under which movables, failing relatives, pass to the state is classified as a rule of succession in Spain but as a confiscatory rule in England, and the short question was whether in an English action this foreign conception of the relationship between the State and the deceased was to prevail with regard to movables found in England. Could the law of the domicile dictate to the English court what meaning should be attributed to heirship?

(p. 50) It was argued for the Crown that the English rules of private international law are dominant so far as property in England is concerned, and that no one can be described as a “successor” in the eyes of English law unless he has a personal nexus with the deceased, a connection which certainly cannot be claimed by a sovereign state to which the property passes. This argument, however, did not prevail. It was held, both by Barnard J and by the Court of Appeal, that the Spanish law of the domicile, which admittedly governed all questions of intestate succession, must be allowed to determine the sense and scope of the term “succession”. Further, the alleged requirement of a personal nexus between the deceased and the heir was dismissed as a fallacy, for in the words of Jenkins LJ: “The heir or successor is surely the person, whether related to the deceased or not, who under the relevant law is entitled to inherit or to succeed.”40

Finally, there was nothing contrary to public policy or repugnant to English law in allowing a sovereign state to take property in the capacity of an heir.

(c)  Other examples

In an earlier case, of commorientes, the question was whether the relevant rule of the German law of the domicile was to be applied as affecting substance or to be rejected as being procedural in nature. Uthwatt J followed the same process of construing the rule in its foreign setting and, therefore, accepted the German classification.41 In the later case of Adams v National Bank of Greece and Athens42 Diplock J found it necessary to decide whether a certain Greek decree related to status or to the discharge of contractual liabilities, and he was insistent that for this purpose he was bound “to look at the substance of the law, not merely at its form”.43 There is no need at this stage to discuss other cases in which English courts have classified foreign rules, since examples will appear from time to time in the course of the following pages.44

Footnotes:

1  An alternative English word for classification is “characterization”. In French it is called qualification. The problems that it raises, since their discovery by Kahn in 1891 and Bartin in 1897, have been widely discussed both in England and abroad. The following are the chief contributions in English: Beckett (1934) 15 BYBIL 46; Robertson, Characterization in the Conflict of Laws (1940); Falconbridge, pp 51–123; Cook, pp 211 et seq; Lorenzen (1920) 20 Col LR 247; Unger (1937) 19 Bellyard 3; Lederman (1951) 29 Can Bar Rev 3, 168; Inglis (1958) 74 LQR 493, 503 et seq; Lipstein, [1972b] CLJ 67, 77–83; Ehrenzweig, XXth Century Comparative and Conflicts Law, pp 395 et seq; Kahn-Freund (1974) III Hague Recueil 147, 367 et seq; Dine [1983] Jur Rev 73; Forsyth (1998) 114 LQR 141; Jackson, The “Conflicts” Process, Chapters 5 and 6; Levontin, Choice of Law and Conflict of Laws, Chapter 5; Anton, pp 65–75; Wolff, pp 146–67; Morris, paras 20-001–20-010; Briggs, paras 3.48-3.63; Dicey, Morris and Collins, paras 2-001–2-047; J Meeusen, ‘Conflict of Laws and the Area of Freedom, Security and Justice after the Treaty of Lisbon’, in P Lindskoug et al (eds), Essays in Honour of Michael Bogdan, pp 307–17.

2  Infra, p 187 et seq.

3  Falconbridge (1937) 53 LQR 235, 236, adopted by Robertson, Characterization in the Conflict of Laws, p 92.

4  The fact that this is done slightly differently in each national system of private international law may give rise to problems, see H Heiss and E Kaufmann-Mohi, ‘Classification: A Subject Matter for a Rome 0 Regulation?’ in S Leible, (ed), General Principles of European Private International Law, (2016), pp 87–100.

5  See Tezcan v Tezcan (1992) 87 DLR (4th) 503 at 509–11; and Sweedman v Transport Accident Commission [2006] HCA 8, per Gleeson CJ, Gummow, Kirby and Hayne JJ, at [25]–[32], and per Callinan J, at [110]–[116].

6  Re Musurus’s Estate [1936] 2 All ER 1666 at 1667; Do Carmo v Ford Excavations Pty Ltd (1984) 52 ALR 231, per Wilson J at 239–40; and Air Link Pty Ltd v Paterson (2005) 218 ALR 700, per Callinan J at 230.

7  Cf Re Martin, Loustalan v Loustalan [1900] P 211.

8  Anton v Bartolo (1891) Clunet 1171. For a fuller and more detailed account see Robertson, Characterization in the Conflict of Laws, pp 158–62; Beckett (n 1), 50; Wolff, p 149.

9  In fact the French court applied the matrimonial law of Malta.

10  Cf Jackson, The “Conflicts” Process, pp 72–82.

11  Beckett (n 1), 59.

12  Statutory provision to this effect is made, in relation to tort claims, by the Private International Law (Miscellaneous Provisions) Act 1995, s 9(2), in respect of the interpretation of which, see Trafigura Beheer BV v Kookmin Bank Co (Preliminary Issue) [2006] EWHC 1450: “the words ‘for the purposes of private international law’ in s 9(2) indicate that Parliament intended that the court should examine relevant issues to decide whether they would be characterised as ‘relating to tort’ not only by reference to English legal concepts and classifications, but by taking a broad ‘internationalist’ view of legal concepts. It followed that the word ‘tort’ in s 9 was to be construed broadly, so as to embrace non-contractual civil wrongs that gave rise to a remedy.” (Aikens J, at [68]). See further, infra, pp 776–8 and 778–91.

13  Macmillan Inc v Bishopsgate Trust (No 3) [1996] 1 WLR 387, at 407; and see Arcadia Petroleum Ltd v Bosworth [2016] EWCA Civ 818.

14  See Macmillan Inc v Bishopsgate Trust (No 3) [1996] 1 WLR 387; and see Forsyth (1998) 114 LQR 141; infra, pp 837–8—Characterisation as restitution and pp 1298–9—Shares. Also Raiffeisen Zentralbank Österreich AG v Five Star General Trading LLC and Ors [2001] QB 825, per Mance LJ at [26], and Atlantic Telecom GmbH, Noter 2004 SLT 1031, per Lord Brodie at p [1044].

15  G & H Montage GmbH v Irvani [1990] 1 WLR 667 at 678.

16  Nussbaum (1940) 40 Col LR 1461, 1470.

17  Robertson, op cit, p 33.

18  [1900] AC 21.

19  Discussed, infra, Chapter 29. See also Carruthers (2005), Chapter 1.

20  Re Berchtold [1923] 1 Ch 192.

21  Robertson, op cit, pp 76–8; Lorenzen (1920) 20 Col LR 247, 281; Beckett (n 1), 62.

22  See Cox v Ergo Versicherung AG (formerly Victoria) [2014] UKSC 22 where a German rule on damages was held to be substantive rather than procedural as it dealt with the scope of liability. Had it been procedural the court would not have applied it. See also infra Chapter 6 for the impact of the distinction between substance and procedure, which is clearly in origin a classification issue.

23  Raiffeisen Zentralbank Österreich AG v Five Star General Trading LLC and Ors [2001] QB 825 (CA); see also Integral Petroleum SA v SCU-Finanz SA [2015] EWCA Civ 144, and Secure Capital SA v Credit Suisse AG [2015] EWHC 388 (Comm).

24  See, eg, Case C-172/91 Volker Sonntag v Hand Waidmann and others [1993] ECR I-1963 where the CJEU gave an interpretation to the concept of civil and commercial matters that departed from the one in use in the Member State concerned and applied that for classification purposes in a Brussels I context.

25  EU law also has an impact on the use of certain connecting factors and in particular on the use of nationality as a connecting factor, see M Bogdan, ‘The EC Treaty and the Use of Nationality and Habitual Residence as Connecting Factors in International Family Law’, in J Meeusen et al (eds), International Family Law for the European Union, (2007) pp 303–7, and J Meeusen, ‘Conflict of Laws and the Area of Freedom, Security and Justice after the Treaty of Lisbon’, in P Lindskoug et al (eds), Essays in Honour of Michael Bogdan, pp 307–17.

26  Their different nature and approach are also highlighted by R Hausmann, ‘General Issues in European Private International Law—Le questioni generali nel diritto internazionale private europeo’, 51 (2015) Rivista di diritto internazionale private e processuale 3, pp 499–522: ‘[ . . . ] the primary objective of the European legislation in the field of private international law is not to identify the closest factual connecting element of a case to the law of a certain country but, rather, to accelerate and improve the legal protection of European citizens and to reduce the costs in cross-border disputes by allowing parties and courts to opt for the lex fori and thus to avoid, to a large extent, the application of foreign law’.

27  See, eg, Case C-375/13 Harald Kolassa v Barclays Bank plc ECLI:EU:C:2015:37, where prospectus liability was classified as tortious in nature and Case C-548/12 Marc Brogsitter v Fabrication de Montres Normandes EURL and Karsten Fräßdorf ECLI:EU:C:2014:148, where the EU used a contractual classification, despite a tort classification being applicable under national law.

28  (1852) 12 CB 801; and see Mahadervan v Mahadervan [1964] p 233.

29  For the present law, see infra, Chapter 6.

30  (1852) 12 CB 801.

31  Cf Bernkrant v Fowler 55 Cal 2d 558, 360 P 2d 906 (1961). Among other examples of the classification of an English rule, see Anderson v Equitable Assurance Society of the United States (1926) 134 LT 557, at 566; Re Cohn [1945] Ch 5 (the Law of Property Act 1925, s 184, dealing with commorientes classified as part of the substantive, not procedural, law, infra, pp 50 and 1345); Re Priest [1944] Ch 58 (rule that a gift to an attesting witness to a will renders the gift void goes to essential validity, not to form); Re Maldonado’s Estate [1954] P 223, infra, pp 49–50, Re Fuld’s Estate (No 3) [1968] P 675 at 697, 698 (rule as to knowledge and approval in the proof of wills is evidential and thus procedural).

32  [1908] P 46.

33  (1860) 2 Sw & Tr 67.

34  Infra, Chapter 21.

35  The Court of Appeal in Ogden v Ogden refused to recognise the French annulment of the marriage, with the result that the parties possessed the status of married persons in England, but of unmarried persons in France. Infra, Chapter 22.

36  In Lodge v Lodge (1963) 107 Sol Jo 437, Hewson J, after hearing expert evidence, held that a contravention of Art 148 of the French Code rendered the marriage voidable, and he followed Ogden v Ogden. The Law Commission has left any reform to judicial development: Law Com No 165 (1987). In contrast, see, for Scots law, Family Law (Scotland) Act 2006, s 38(5) (in respect of which, see Crawford and Carruthers, para 11-32).

37  [1954] P 223; Lipstein [1954] CLJ 22.

38  See Wolff, p 157. Under s 46(1)(vi) of the Administration of Estates Act 1925 it is arguable that the Crown takes by succession and not by virtue of a prerogative right to ownerless property: Re Mitchell, Hatton v Jones [1954] Ch 525; cf Re Hanley’s Estate [1942] P 33; but see Ing, Bona Vacantia, pp 57–62. See also Hanchett-Stamford v Attorney General and Anor (Barclays Bank Trust Co Ltd Intervening) [2008] EWHC 330 (CH).

39  Re Musurus’s Estate [1936] 2 All ER 1666 (Turkey); Re Barnett’s Trust [1902] 1 Ch 847 (Austria).

40  [1954] P 223 at 249.

41  Re Cohn [1945] Ch 5.

42  [1958] 2 QB 59.

43  [1958] 2 QB 59 at 75.

44  General Steam Navigation Co v Guillou (1843) 11 M & W 877, infra, pp 87–8 (whether a French rule affected procedure or the substantive law of tort); Re Doetsch [1896] 2 Ch 836 and other similar cases, infra, p 87 (whether a rule regulating the order in which parties must be sued affected procedure or substance); Huntington v Attrill [1893] AC 150, infra, p 121 (whether a New York statutory rule was penal or remedial); Re Martin, Loustalan v Loustalan [1900] P 211, infra, pp 1350–1 (whether revocation of a will by marriage was a testamentary or matrimonial question); Re Wilks [1935] Ch 645 (whether the time at which shares forming part of an estate must be sold was a question of succession or administration); Re Korvine’s Trusts, Levashoff v Block [1921] 1 Ch 343 (whether a gift in the event of death is to be classed as a bequest or a gift inter vivos); Metal Industries (Salvage) Ltd v S T Harle (Owners) 1962 SLT 114; and Raiffeisen Zentralbank Österreich AG v Five Star General Trading LLC and Ors [2001] QB 825 (whether an assignee’s claim under the assignment of a marine insurance policy, made with French insurers, but governed by English law, was to be treated as contractual or proprietary).