Classification in Private International Law [notes]

These notes cover everything you need to know about classification in private international law.

Audience: Law students in Tanzania

Here you will learn

• What is the classification in Private International Law?
• Process of Classification in Private International Law
  • Classification of Cause of Action
  • Classification of Rule of Law
• How do Courts use Classification in Conflict of Laws?
• etc.

What is the classification in Private International Law?

In a civil case involving a foreign element technically known as ‘conflict of laws’, the trial court will have to determine whether it has jurisdiction both over the parties and the cause of action, also it will have to examine the cause of action to determine whether the case is one of breach of contract, matrimonial cause or commission of a tort so as to determine which appropriate rule of law is applicable.

The process of determining those issues is what under Private International Law known as classification

Meaning of Classification

Classification in terms of Private International Law is the selection or classification of causes of action and rule of law applicable to disputes involving foreign elements.

This means the allocation of the question raised by the factual situation before the court to its correct legal category.

In the process of Classification, the court is required to analyze the pleadings prepared by the parties and to assign each component element to the most appropriate juridical concept or category.

The rules of any given system of law are arranged under different categories, addressing procedure, status, contract, tort, divorce, nullity, and so on.

How do Courts use Classification in Conflict of Laws?

When Courts are faced with a case of a foreign element, have a two-stage process; first, the court will apply the law of the forum lex fori (lex fori means the domestic law of the court dealing with the case) to all procedural matters including, evidence rules and the choice of law rules.

Further, the court has to count the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection.

Example

1. The law of nationality (lex patriae) or domicile (lex domicilii) will define the legal status and capacity of the parties.
2. The law of the state in which land is situated (lex situs) will be applied to determine all questions of the title.
3. The law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive.

Process of Classification in Private International Law

Generally, the process of classification involves two things namely; the classification of the cause of action and the classification of the rule of law.

Classification of Cause of Action

Every legal system arranges its rules under different categories which must form the basis of a plaintiff’s claim.

These categories may be concerned with tort, contract, property, status, succession, and so on.

Therefore the classification of cause of action means the allocation of the question raised by the factual situation before the court to its correct legal category.

The aim or object of doing this is to reveal the relevant rule for the choice of law.  Thus, once the forum court has decided that it has jurisdiction to hear the case, it then must characterize or classify the cause(s) of action.

This is regarded as the most important and difficult problem in the Conflict of Laws.

Classification of Rule of Law

Once the legal category of a given case has been identified, the next stage is to apply the relevant choice of law rules in order to identify the law of the place where the cause of action was raised (lex cause.)

However, even at this stage, it may be necessary to classify a particular rule in order to determine whether it falls within one choice of law rule or another.

Generally, the Classification of rule of law applicable in a case will depend basically on the ultimate reasoning of a judge. There is no hard and fast rule on this.

Nevertheless, the correct choice of law will depend on some connecting factors such as domicile, the situation of immovable, and definite legal systems.

Read the following case to understand how the court applies the consent of application. Here I will share a summary.

Gharib Abdallah Juma v Kay Mlinga[Civil Appeal No 10 of 2001] CAT at Zanzibar

Facts

Gharib Abdallah Juma, a Zanzibarian, lived in Denmark, and married Kay Mlinga, a Tanzanian from the mainland, in Denmark.

Denmark practiced the system of community of property for married people. At that time he owned a flat in Copenhagen, so Gharib Abdallah Juma decided to enter into a pre-marital agreement with Kay Mlinga to exclude it from the matrimonial property. Before marriage, he had other properties (two Houses) situated in Zanzibar.

After the marriage, Kay Mlinga went to live in Zanzibar. The marriage lasted some 14 years and the two obtained judicial separation and was formally divorced. Both the judicial separation and the divorce occurred in Denmark.

There was no order for the division of matrimonial property in Denmark.