n South African Law Journal - Formalistic and discretionary approaches to characterization in private international law




As regards the choice of the relevant law for the process of characterization, three competing doctrinal streams can be distinguished: characterization by the lex fori, characterization by the lex causae, and characterization by reference to independent and universal concepts. In this article, it is argued that these three approaches are formalistic approaches, in that a judge is forced into a conceptual straightjacket, which merely enables him rigidly to apply the lex fori or the lex causae, without having regard to all the circumstances of the particular case. The proposed alternative is a nonformalistic approach to characterization, which affords the judge the required judicial discretion. Exercising judicial discretion in the process of characterization means to determine the connecting factors that are appropriate to the legal question, and in order to be able to do that, to have regard to all the facts of the particular case at hand. By doing that, the yardstick of what is fair, reasonable, convenient, or otherwise appropriate in the circumstances will be applied, in order to achieve a more just and equitable result.


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