Characterisation in Estonian Private International Law-a Proper Tool for Achieving Justice between the Parties?

Author:Maarja Torga
Position:Lecturer of Civil Law, University of Tartu. Adviser to the Civil Chamber, Supreme Court of Estonia

1. Introduction - 2. The different approaches to characterisation - 2.1. The use of autonomous definitions in Estonian private international law - 2.2. Characterisation by the lex fori or by the lex causae? - 2.3. Avoiding the characterisation problems by implementing the rules of recognition - 3. Illustration of the problem of characterisation— some recent examples from Estonian case law - 3.1.... (see full summary)

Maarja Torga
Lecturer of Civil Law, University of Tartu
Adviser to the Civil Chamber, Supreme Court of Estonia
Characterisation in Estonian
Private International Law—
a Proper Tool for Achieving
Justice between the Parties?
1. Introduction
The purpose of the present article is to illustrate how the method of characterisation could be used in Esto-
nian private international law in order to achieve justice between the parties. It is not surprising that neither
the Estonian Code of Civil Procedure*1 (hereinafter referred to as the ECC) nor the Private International
Law Act*2 (hereinafter referred to as the PILA) contains any provisions addressing how the characterisa-
tion/classi cation (kvali tseerimine/karakteriseerimine) should be done—this is a question that various
jurisdictions have traditionally left to be decided by the case law and legal theory.*3
In general, there are three approaches to how the problems of characterisation can be solved. First, a
court can characterise the issue at hand by its own domestic rules (characterisation by the lex fori approach).
Secondly, a court can characterise the particular issue by the law that is expected to be applicable to the issue
(characterisation by the lex causae approach). Although characterisation by lex causae might be favoured
for achieving uniformity of judgements between courts of two different states (especially if these courts both
follow similar choice of law rules), the lex fori approach is generally preferred for its practical advantages.
After all, a court is best equipped with knowledge of its own substantive law, and in-depth analysis of for-
eign characterisation rules in the phase of choosing the applicable law would be burdensome to the parties,
if not even unjust and contrary to their reasonable expectations. Even though there is no clear statutory rule
in Estonian law as to how the characterisation should take place, some Estonian authors have expressed
1 Tsiviilkohtumenetluse seadustik. – RT I 2005, 26, 197; RT I, 30.12.2010, 2 (in Estonian). English text available at http:// (1.7.2011).
2 Rahvusvahelise eraõiguse seadus. – RT I 2002, 35, 217; RT I 2009, 59, 385 (in Estonian). English text available at http:// (1.7.2011).
3 Taking into account the long history of the problem, an exhaustive reference to the sources relating to the characterisa-
tion is impossible to make. However, for the most recent treatments of the topic, see R. Baratta. General Issues of Private
International Law in the European System Re ections by Italian Scholars The Process of Characterization in the EC Con ict
of Laws: Suggesting a Flexible Approach. – Yearbook of Private International Law 2004/6, pp. 155–169; J. Fawcett, J. M.
Carruthers. Cheshire, North & Fawcett Private International Law. 14th ed. New York: Oxford University Press 2008, pp.
75–109; L. Collins (ed.). Dicey, Morris and Collins on the Con ict of Laws. Volume I. 14th ed. London: Sweet & Maxwell
2006, pp. 37–59.

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