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
• Pages: 84-93

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/classif‌i cation (kvalif‌i 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://

www.just.ee/23295 (1.7.2011).

2 Rahvusvahelise eraõiguse seadus. – RT I 2002, 35, 217; RT I 2009, 59, 385 (in Estonian). English text available at http://

www.just.ee/23295 (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 Ref‌l ections by Italian Scholars The Process of Characterization in the EC Conf‌l 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 Conf‌l ict of Laws. Volume I. 14th ed. London: Sweet & Maxwell

2006, pp. 37–59.

84 JURIDICA INTERNATIONAL XVIII/2011