What is Qualification in Private International Law?

2. Lex Causae Qualification Theory (Extended Lex Fori)

This theory was pioneered by Martin Wolff. Qualification should be carried out according to the legal system from which this concept originates. The qualification action is intended to determine which rule of private international law of the lex fori is most closely related to the foreign legal rule that may be applied.

This determination must be made based on the results of the qualification carried out by taking into account the foreign legal system in question. After the juridical category of a legal event is determined in that way, only then can it be determined which rule of private international law of the lex fori will be used to point to the lex causae or which is closely related to the foreign law that should apply to resolve the case.

Qualification must be applied according to the size of the entire legal system related to the case. The purpose of this theory is to determine which rule of private international law of the lex fori is most closely related to the foreign legal rule that may be applied. This theory assumes that qualification must be carried out according to the system and size of the entire law relating to the case.

3. Autonomous Qualification Theory

This qualification is based on comparative law. The figures of this theory are Ernst Rabel from Germany and Beckett from England. This theory is basically based on their rejection of the assumption underlying a rule of private international law which only covers the internal law of the forum.

In this qualification action, the collection of facts must be carried out independently of its relation to a particular national legal system (autonomous). That is, in private international law, distinctive legal concepts should be developed that can apply generally and have the same meaning wherever they are. The provisions are adjusted to the distinctive notions of private international law, so they do not need to be identical to the notions in the judge's material law or foreign law.

4. Gradual Qualification Theory

This theory departs from objections to the theory of qualification based on lex causae alone, because what legal system or which law is to be established as lex causae must first be determined. This can only be done through the qualification process and the help of connecting factors. Objections to the Lex Causae theory led to the emergence of the gradual qualification theory.

Qualification according to the Gradual Qualification Theory is carried out in two stages, namely:

• The First Stage of Qualification or Primary Qualification, namely the Judge must find a rule of private international law or choice of law (lex fori) that will be used to determine the determining connecting factor. Qualification is carried out with an internal qualification system known to the lex fori, where this qualification is carried out to determine the lex causae.
• The Second Stage of Qualification or Secondary Qualification, namely if it is known that the law that should be applied is foreign law, then further qualification needs to be carried out according to the foreign law that has been found. In this second stage, all the facts in the case must be re-qualified based on the qualification system in the lex causae, then carried out with the internal qualification system known in the lex causae.

References

• Gautama, Sudargo. Introduction to Indonesian Private International Law. Jakarta: Bina Cipta, 2016.
• Hartono, Sunaryati. Fundamentals of Private International Law. Bandung: Binacipta, 1976.
• Purwadi, Ari. Basics of Private International Law. Center for Legal Studies and Development, Faculty of Law, Wijaya Kusuma University, Surabaya, 2016.
• Seto Hardjowahono, Bayu. Basics of Private International Law. Bandung: PT Citra Aditya Bakti, 2013.