Report of the Oxford Conference on “Characterisation in the Conflict of Laws”

The author of this report is Meltem Ece Oba (Koç University, Istanbul). The post is being published simultaneously on Conflictoflaws.net and on the EAPIL blog.

 

 On 20-21 March 2025, a conference on “Characterisation in the Conflict of Laws” was convened at St Hilda’s College, Oxford. Under the auspices of the Institute of European and Comparative Law in the Law Faculty of the University of Oxford, the conference was jointly organised by Dr Johannes Ungerer (University of Oxford and Notre Dame University in England), Dr Caterina Benini (Catholic University of Sacred Heart, Milan) and PD Dr Felix Berner (University of Tübingen). The conference brought together scholars and practitioners from several jurisdictions around the world.

 

The conference’s topic, characterisation, is the process for identifying the nature or category of a particular cause of action (for instance contractual, tortious, proprietary, corporate, matrimonial), so that the correct connecting factor can be employed which then points to the applicable law or to the competent court. Characterisation poses difficulties where the action is domestically unknown or falls in-between two categories and could thus be potentially litigated in different fora or under different laws, leading to different outcomes. Different methods proposed for characterisation make this process even more complex. In this conference, participants explored characterisation from historical, methodological, critical, practical, and further perspectives with the aim to shed light on some of the most pressing and controversial issues of what arguably is the most crucial step for a court when determining its international jurisdiction and the applicable law.

 

Following the opening remarks by the three organisers, the first presentation addressed the history of characterisation. Professor Martin Gebauer (University of Tübingen) explored three main themes: striking parallels in time and content, strong contrasts, and finally the tensions in characterisation. Gebauer initially touched upon the ‘discovery’ of characterisation as ‘a child of the nineties of the 19th century’ in the works of Franz Kahn and Etienne Bartin. This was followed by the examination of the internationalist approaches. This led him to discuss autonomous characterisation and functional comparative law approaches as the ‘third direction’ through the work of Scipione Gemma and the changed views of Franz Kahn. Gebauer highlighted that the doctrinal views in this decade reflected the ideological battles over the foundations of private international law. He further discussed the developments in characterisation in the 20th century, such as the developments in comparative law and Rabel’s approach to characterisation. Finally, Gebauer considered characterisation in transnational and European law and its contribution to the homogenous understanding of conflict-of-laws rules within the EU. In the discussion following his presentation, the challenges of comparative law methodology and the need to consider a range of perspectives on characterisation (instead of a single one) were debated amongst other aspects.

 

The following presentations were dedicated to the process and particular problems of characterisation. The paper given by Professor Andrew Dickinson (University of Oxford) raised the question of “Is there any magic in characterisation?” with a focus on the courts of England and Wales. He provided seven steps of dealing with how the courts must engage with characterisation. Using a metaphor, he compared the attempts of describing the characterisation process to an attempt of describing the elephant in the Indian parable of ‘blind men and an elephant’. In this regard, Dickinson underlined that one can only provide an informative tool kit and cannot describe a full process of characterisation. He emphasised that all parts of a given rule and most importantly its purpose must be taken into account when characterising it. In this regard, he explained that ‘substance’ should be valued higher than ‘form’ and that ‘labels’ should not play a major role. Dickinson considered characterisation as being more of a practical issue from the common law perspective, and a process of interpreting a rule or a particular subset of settings; he thus concluded that there is no ‘magic’ in characterisation. Participants used the subsequent discussion for instance to contrast the Common law position with the Civilian approaches and to question the role of the judge and the parties when characterising a claim.

 

The next presentation was delivered jointly by Associate Professors Brooke Marshall and Roxanna Banu (both University of Oxford) on characterisation’s role in the jurisdictional inquiry in English courts. They began with an overview of the instances where the choice of law questions are raised at the jurisdictional stage in the context of granting permission for service out of the jurisdiction, exploring the relevant gateways in the Practice Direction 6B of the Civil Procedure Rules. Marshall critically examined the UK Supreme Court decision in UniCredit Bank v RusChemAlliance, demonstrating how the choice of law matters affect the international jurisdiction of English courts. Banu, from a more theoretical point of view, then discussed the a priori application of the lex fori to jurisdictional matters and the importance of theorising characterisation to understand the reasons why jurisdiction and substance are to be distinguished. The presentation was followed by a fruitful discussion which, among other issues, highlighted the problematic circular reasoning employed at the intersection of choice of law and jurisdictional characterisation.

 

The last paper of this session was presented by Professor Pietro Franzina (Catholic University of Sacred Heart, Milan) on ‘renvoi de characterisation’, that is, characterisation for the purposes of renvoi. At the beginning, he set the scene with regard to the meaning of renvoi and characterisation as well as the distinction between primary and secondary characterisation. Franzina explained that where the private international law of the forum contemplates the possibility of renvoi, the conflict of laws conceptions of a foreign applicable law should also be appreciated. In that regard, Franzina demonstrated through examples how the ‘second characterisation’ should reflect the taxonomy of the designated legal system (and, in some instances, the taxonomy of the different system specified under the conflict-of-laws rules of the latter system). He explained that characterisation for the purposes of renvoi is not given as much attention today as it used to receive, especially due to the greater weight that substantive policy considerations have progressively gained in private international law. The subsequent discussion addressed concerns over consistency in the interpretation of connecting factors in jurisdictional and applicable law matters.

 

The next session of the conference consisted of four presentations on challenges of characterisation in specific areas. The first speaker, Assistant Professor Joanna Langille (University of Western Ontario), focused on the distinction between substance and procedure. In this regard, Langille critically examined the use of the traditional common law distinction of rights and remedies for characterisation purposes. She took a Kantian rights-based approach to explain that the idea of right and remedy essentially merged or ‘shaded into’ one another. Langille argued for an alternative distinction between substance and procedure based on the nature of private rights. The adjudication process through which that determination is made should be subjected to the lex fori as the law of the community. In that sense, she viewed procedural law as being about publicity or the capacity of the courts to make law for the community as a whole and hence operating on a vertical plane. On the other hand, where the court is faced with a question that relates only to the horizontal relationship and, thereby, the reciprocal rights and duties between the two parties, foreign substantive private law should apply. Accordingly, the ‘provisions that are determinative of the rights of both parties’ were considered as substantive, whilst ‘the machinery of the forum court’ as procedural. She exemplified her views by reference to statutes of limitation. Among the issues raised during the subsequent discussion were the role of procedural law and of the lex fori in light of state sovereignty as well as the transcending boundaries of substance and procedure in instances like limitation statutes.

 

The next paper was delivered by Professor Yip Man (Singapore Management University) on the characterisation of equitable doctrines. While characterisation might have to start from a domestic law understanding, she embraced a functional approach in characterisation and argued for the pursuit of uniformity with an internationalist spirit and therefore against being constrained by domestic law notions. In that regard, she emphasised the importance of understanding the function of equity in arriving at the appropriate category. The conceptual diversity and complexity of equitable doctrines in Common law systems both in conflict of laws and domestic laws were discussed. Yip Man highlighted the objective of identifying the predominant characteristic of a legal institution, which she illustrated by reference to both remedial and institutional features. The relationship between the parties underlying the equitable obligations and remedies were also discussed as possibly being the predominant features to be taken into account. Finally, Yip Man analysed two recent decisions, Xiamen Xinjingdi Group Co v Eton Properties of the Hong Kong Court of Final Appeal and Perry v Esculier of the Singapore Court of Appeal. The discussion addressed the challenge of characterising equitable doctrines in Civilian courts, possible advantages when differentiating between substance and procedure when characterising equitable concepts, and the ‘fusion’ approach.

 

Moving on to the insightful presentations by two academically distinguished practitioners, Dr Alex Critchley (Westwater Advocates, Edinburgh) spoke about the characterisation of contractual arrangements in the context of family law where some of the most challenging questions arise. Critchley focused on two main issues, namely the way family law agreements differ from other contracts (or as to whether they can be characterised as contracts at all) and the extent to which they relate to other fields of law such as company law. In this context, he explained the international framework for contracts in international family law by exploring the EU and HCCH rules. He then exemplified family law agreements and their different forms such as nuptial agreements, care arrangements for children or agreements addressing corporate or property relationships between family members. This led to a discussion among all participants about choice of law rules for nuptial agreements, the characterisation of maintenance agreements, the 2007 Hague Protocol on the Law Applicable to Maintenance Obligations, and case law referenced by Critchley, such as F v M 2021 SLT 1121.

 

Looking at a very different area of law, Dr Thomas Klink (Higher Regional Court of Stuttgart) addressed characterisation in international M&A disputes, where issues arise in judicial practice especially when the purchase agreement did not contain a relevant and valid choice of law clause. In his presentation Klink initially examined the characterisation of purchase agreements both in the form of a ‘share deal’ or – less common – an ‘asset deal’. He hinted at the tricky ramifications if the selling shareholder is a natural person and could be considered to be a consumer for the purposes of Article 6 of the Rome I Regulation. He then moved on to characterisation challenges encountered in the preparation of the transaction and in respect of non-disclosure agreements/letters of intent, access to information, exclusivity, and the issues arising from the termination of negotiations such as break-up fees. Klink also touched upon company law issues such as the transfer of shares. Post-M&A disputes such as fraud cases were also addressed. Looking ahead, he expressed his expectation that the number of M&A disputes in the newly established International Commercial Courts will increase, which was then also discussed further by the conference participants. Other issues in the discussion included the consumer status of investors, the parallels between choice of law and jurisdictional characterisation in M&A disputes, and the latest case-law developments on concurrent claims. This concluded a day full of fruitful debates.

 

The second day of the conference began with a session on what the organisers had termed rethinking characterisation, exploring novel and more critical approaches to characterisation.

 

The first speaker in this session was Professor Jeremy Heymann (University of Lyon III Jean Moulin). Heymann’s presentation was entitled ‘characterisation from a unilateralist perspective’. He outlined the approach of unilateralism in contrast to multilateralism. Heymann argued that, from a methodological point of view, it is necessary to first identify a ‘legal order of reference’ and then to determine if the legal issue at hand and the facts of the case fall under the scope of this ‘legal order of reference’. Whilst indicating that the ‘legal order of reference’ of the judge should be the lex fori in most instances, he also highlighted that the law to be taken into account should correspond to the expectation of the parties. Through this conception of unilateralism Heymann argued that the law applicable to characterisation should be ‘much more the lex causae than lex fori’. In the subsequent discussion, the designation of the ‘legal order of reference’ was debated in addition to the challenges of taking into account the expectations of the parties. Heymann further commented on how some EU Regulations might provide for unilateral rules on certain private international law matters, such as the GDPR and the Air Passenger Regulation.

 

The second presentation in this session was delivered jointly by Philomena Hindermann and Professor Ralf Michaels (both Max Planck Institute for Comparative and International Private Law, Hamburg) with the provocative title ‘Against Characterisation?’. Michaels began the paper with a critique of the current approach to characterisation with reference to the English decision in Macmillan v Bishopsgate Investment Trust. He explained how such a methodology in fact conceals the real essence of legal reasoning behind characterisation. He then touched upon the attempts of the American Conflicts Revolution to overcome characterisation through interest analysis. Whilst acknowledging that overcoming characterisation is not possible, he argued for taking account of the policies behind legal rules in the process of characterisation. In this regard, Michaels criticised a process of characterisation through preliminary categories and argued instead that characterisation should be an ‘end result’. Building on this finding, Hindermann continued with the question as to whether there could be such a thing as ‘post-categorical characterisation’. She also criticised characterisation as reflecting certain presumptions and as omitting the policies and various functions of legal rules. Considering characterisation as an epistemological process she then questioned the need for categories and advocated for embracing a non-exhaustive / post-categorical functional approach. Therefore, instead of reducing characterisation to a pre-determined taxonomy, she argued that categories should be built based on each case by way of looking at the functions of the legal institution at hand. Participants to the discussion engaged with the reasons why the American realist thinking approach might or might not be compelling and also deepened the discussion from an EU perspective. The idea of categories under national laws having an open-ended nature as opposed to close-ended categories was further discussed on the one hand, as well as the concerns of legal uncertainty on the other hand.

 

The last speaker of this session was Professor Veronica Ruiz Abou-Nigm (University of Edinburgh). Her presentation covered characterisation as a tool to manage diversity and hence she focused on an epistemic change of perspectives in characterisation. Her paper started off with an explanation of the creation of a new delict under Scottish substantive law in relation to domestic violence. Furthermore, Ruiz Abou-Nigm considered a possible interplay with the 1980 Child Abduction Convention where under Article 13(1)(b) domestic abuse might constitute a reason to refuse the return of a child. Recognition and enforcement of civil protection orders were also discussed through this lens. As a conclusion Ruiz Abou-Nigm called for an internationalist approach to characterisation that takes into account feminist perspectives as well as the interplay of cultures. Ruiz Abou-Nigm argued that instead of taking the lex fori as a starting point, one should embrace an epistemological and pluralistic approach. In her view, the ‘order of reference’ of the judge in characterising a matter should be much more complex and international than the categories under the lex fori. Participants asked her how this inter-cultural approach should affect the application of the new Scottish law in a cross-border setting and raised the problem that embracing an inter-cultural approach might not appear to be supportive of a feminist normative approach. Participants also suggested ways that might foster pluralistic thinking with a feminist approach and commented on how the Istanbul Convention on Preventing and Combating Violence Against Women and Domestic Violence could be used for characterisation or interpretation.

 

The last session of the conference focused on the interplay of private and public international law. Professor Alex Mills (University College London) spoke about private international law treaty interpretation and characterisation. He started by examining the English common law approach to characterisation in order to draw comparisons between the methodology in the common law regarding the characterisation and the interpretation of international treaties. He explained that, since treaties are implemented through national laws in dualist systems, statutory interpretation is needed in their application whilst principles of international treaty interpretation are also taken into account. Mills argued that international treaty interpretation has commonalities with the common law approaches to characterisation, but that the judge should acknowledge where choice of law rules belong to an international body of law. He used the 2019 Hague Judgments Convention as an example and pointed to its explanatory report which indicates the ‘international spirit’, echoing the English common law approach. In the subsequent discussion, the internationalist interpretation was generally welcomed but its practical implications were questioned. The idea that international treaty interpretation was reflecting the common law approach was challenged by Civilian representatives, though Continental European approaches could also be understood as being too ‘rigid’ from the point of view of the English common law doctrine. Participants also pointed to the process in which the 2005 and 2019 Hague Conventions were drafted and how the consistency in the internationalist approach in both Conventions reflected a common understanding of the drafters.

 

The final paper of the conference was delivered by Professor Marta Pertegás Sender (Maastricht University and the University of Antwerp) discussed how characterisation questions were addressed at the Hague Conference for the purposes of drafting Conventions. Three main examples were given: first, Pertegás Sender explained that drafters increasingly employ provisions that regulate the scope of a Convention. As a second example of instances where the HCCH takes into account characterisation matters, she demonstrated how rather broad terms are preferred in the drafting of Conventions’ provisions that would establish a common ground for contracting states. Finally, she pointed out the fact that there does not exist a lex fori for the drafters of such international Conventions. Sender also highlighted that especially in the last two decades all of the Conventions emphasise the autonomous interpretation and the promotion of uniformity in their application. The preference for broad terms was challenged in the subsequent discussion as being too vague, especially in the absence of a special court system for the interpretation of HCCH Conventions. Interestingly, the consequences of ‘negative characterisation’ were discussed in relation to the aspects which are kept outside of the scope of the HCCH Conventions, in contrast to a true or ‘positive characterisation’ of what is within the scope of a particular Convention.

 

Concluding the conference proceedings, the three organisers expressed their gratitude to all speakers for their papers and to all attendees for their fruitful contributions to the discussion.

Summer School ‘Consumer and Market Law in the European Circular Economy’

Registration is now open for the Summer School ‘Consumer and Market Law in the European Circular Economy’ which will be held from 9 to 18 July 2025: 9-11 July online and 14-18 July in presence at the University of Udine, Italy.

The Summer School is organised by the University of Udine, in cooperation with a consortium of European universities, including University of Essex, De Montfort University of Leicester, University of West Timisoara, East Anglia University, University of Rijeka, University of Belgrade and University of Szeged, within the framework of the Jean Monnet Module CoME CircLE.

The 2025 Summer School will consist of 40 hours of lectures, a workshop and a moot court. Attendees will be offered a comprehensive training on the legal discipline of consumer protection and market regulation in the EU Law, with a particular reference to circular economy, taking into account the following relevant topics: Consumer protection and empowerment issues; Private international law issues; Dispute resolution and redress issues; and Market regulation.

Eligible are undergraduate students, graduatestudents and PhD students, studing Law, Economics, Political Science or International Relations. Application deadline is 31 May 2025, 12.00 pm GMT. Those who are interested in applying, need to fill in the application form and submit it to ip.europeanlaw.uniud@gmail.com.

For details see the programme and the call for application.

HCCH Monthly Update: March 2025

HCCH Monthly Update: March 2025

 

Membership

On 5 March 2025, Rwanda deposited its instrument of acceptance of the Statute, becoming the 92nd Member of the HCCH. On the same day, Guatemala applied to become a Member of the HCCH. More information is available here.

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The Supreme People’s Court of the People’s Republic of China issued the Notice on Procedural Matters Related to Civil Cases Involving Foreign State Immunity

(This is written by Xiaoxuan Gu, a PhD student in School of Law, University of Macau)

The Foreign State Immunity Law of the People’s Republic of China (CFSIL) took effect on January 1, 2024.[i] To ensure its proper implementation and guide courts nationwide in lawfully and efficiently adjudicating civil cases involving foreign state immunity, the Supreme People’s Court (SPC) formulated supporting procedural rules. On March 26, 2025, the SPC issued the Notice on Procedural Matters Related to Civil Cases Involving Foreign State Immunity (hereinafter the “Notice”), which provides definitive guidance to courts at all levels in handling such novel foreign-related cases.

The Notice stipulates provisions on key procedural matters, including case acceptance criteria, centralized jurisdiction mechanisms, service of process rules, jurisdictional immunity review procedures, and protocols for obtaining evidentiary certifications from the Ministry of Foreign Affairs. Read more

ASADIP: Annual Conference, Moot and New Board

Annual conference

The Annual Conference of the American Association of Private International Law (ASADIP) will take place on 7-9 August 2025 in Rio de Janeiro (Brazil). More information will be available soon. Read more

Legal Internships at the HCCH

Applications are now open for three- to six-month legal internships at the headquarters of the Permanent Bureau of the Hague Conference on Private International Law (HCCH) in The Hague, for the period from July to December 2025!

Interns work with our legal teams in the Family and Child Protection Law Division, the Transnational Litigation and Apostille Division, and the Commercial, Digital and Financial Law Division. Duties may include carrying out research on particular points of private international law and/or comparative law, taking part in the preparation of HCCH meetings and contributing to the promotion of the HCCH and its work.

Applications should be submitted by Friday, 25 April 2025 at 18.00 (CEST). For more information, please visit the Internships Section of the HCCH website.

 

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).

 

Defending Access to Justice: The Crucial Battle for the IJI

Published on behalf of the IJI, Den Haag

In the heart of The Hague, a critical institution of international legal knowledge faces an existential threat. The International Juridical Institute (IJI) (translated in English to mean the Hague Institute for Private International Law), a venerable organization with a century-long history of providing essential legal guidance, stands on the brink of liquidation due to declining government support.

Founded in 1918 at the iconic Peace Palace, the IJI emerged as a unique global resource. Born in the aftermath of World War I, the institute was conceived as a “gift to the world” noble vision supported by leading businessmen, ministers, and statesmen. The IJI has been a beacon of legal expertise for over a hundred years, offering free and cost-effective advice in the complex realm of private international law. The institute’s current predicament is a stark testament to the fragility of specialized legal resources. Successive government cuts, culminating in eliminating the social advocacy subsidy scheme in 2019, have systematically undermined the IJI’s financial stability. What makes this situation particularly alarming is not just the potential loss of an institution but the broader implications for access to justice.

The IJI is not merely an archive of legal knowledge; it is a critical resource for individuals navigating complex international legal challenges. Many of these cases involve vulnerable populations, including children, who rely on expert guidance to traverse intricate cross-border legal landscapes.

Ironically, the government’s cost-cutting measures may ultimately prove counterproductive. The reduction in funded legal aid is likely to generate more protracted and expensive legal proceedings, potentially negating any initial savings.

The IJI is making a final, humble appeal: a modest annual subsidy of €260,000 to continue its vital work. This relatively small investment could ensure another century of legal expertise and maintain critical access to justice for countless individuals.

How You Can Help

The legal community and concerned citizens have a unique opportunity to make a difference:

  1. Sign the Petition: Visit the IJI petition page and add your name to support the institute’s continued existence.If you would like to support this cause, we would like to add your signature to the grant application. You can click on the next link: https://petities.nl/petitions/behoud-de-toegang-tot-het-recht-voor-iedereen?locale=de. This leads you to a website where you can sign very easily by giving your name (on the field ‘naam’), email address (on the field ‘emailadres’) and domicile (on the field ‘woonplaats’). You could also tick the box if you want your name visible on the list, if not, you remain anonymous. Please note that after signing, you will receive an email in which you are asked to confirm your signature by clicking on the provided link. Only after confirming, the signature will be registered.
  2. Spread Awareness: Share the IJI’s story within your professional networks and social circles.
  3. Contribute Ideas: Of course, we are also open to other ideas that can ensure that our wonderful institute can experience a second 100-year term. If you would like to exchange thoughts with us about this, please do send us an email to info@iji.nl and we will get in touch.

The potential loss of the IJI represents more than the closure of an institution. It symbolizes a potential erosion of specialized legal knowledge, international cooperation, and accessible justice.

As members of the legal community, we have a responsibility to support institutions that serve the broader public good. The IJI’s century of service is a testament to the power of dedicated legal expertise in bridging complex international legal challenges.

Together, we can help ensure that this invaluable resource continues to serve global legal needs for generations to come.

Thank you very much for your support!

Virtual Workshop (in English) on April 1: Carlos Esplugues on “Take Domestic Law and Run? The Application of Foreign (Private? State?) Law in Times of Uncertainty”

On Tuesday, April 1, 2025, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CEST). Professor Carlos Esplugues (University of Valencia) will speak, in English, about the topic

“Take Domestic Law and Run? The Application of Foreign (Private? State?) Law in Times of Uncertainty”

 

The possible application of foreign law is one of the features of contemporary private international law, a discipline that is particularly sensitive to the social, political and economic environment in which it operates. However, the redefinition of the role of the State in modern societies, technological changes or the growing wave of intolerance and fear towards what comes from abroad in many parts of the world are creating a new environment that affects this question in a pluralistic way. Beyond the classical issue of the nature of the applicable law and its relationship to the process, questions are being raised about the viability of this possible applicability and the conditions under which it can be established.

 

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

AMEDIP’s upcoming webinar: Circular Economy and Private International Law (27 March 2025 – In Spanish)

 

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 27 March 2025 at 14:30 (Mexico City time – CST), 21:30 (CET time). The topic of the webinar is ‘Circular Economy and Private International Law’ and will be presented by Prof. Verónica Ruiz Abou-Nigm (in Spanish).

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New Canadian Conflicts Text

The Irwin Law “Essentials Series” is a collection of texts about Canadian law aimed at a broad audience: it includes law students and also lawyers, judges and academics.  It has been quite successful over the past twenty years.  In 2024 Irwin Law was acquired by University of Toronto Press.  It has continued the Essentials Series and the use of the Irwin Law imprint.

It has now published the third edition of Conflict of Laws written by Professor Stephen G.A. Pitel of Western University, Canada.  The second edition was published in 2016 and so this edition updates almost a decade of activity, mainly from courts across Canada.  The major change is that the chapter on declining jurisdiction has been reorganized and updated in light of the Supreme Court of Canada’s decisions in Douez v Facebook, Inc (2017) and Haaretz.com v Goldhar (2018).  All chapters have been updated to reflect new decisions, legislative changes and recent scholarship.

More information is available here.  For those outside Canada, the book is a clear and accessible source of comparative conflict of laws analysis.