Qualification of Concepts and its Problems in Cases with Foreign Element in Poland and the United Kingdom

Qualification is the basic instrument used in the process of application of the law. It is impossible to apply the law without conducting it. The main internal source of collision law in Poland, Act of private international law dated February 4th, 2011, does not specify how to carry on the process of the qualification, and doctrine is of the opinion that the Polish court applying foreign law should interpret the foreign concepts according to the rules of this law and give them such meanings as this law assigns to them. But also there are four doctrinal proposals concerning methods of qualification. The first one (with various modifications) is relatively popular in a number of countries, while the Polish doctrine has the greatest respect for the latter: 1) lex fori approach, 2) lex causae approach, 3) autonomous method and 4) functional method (or collision lex fori approach).

The English judge applying the rules derived from his own internal law remembers about the function of private international law - and therefore takes into account the rules and institutions adopted in the foreign laws. That is application of lex fori approach modified because of the function of collision law, indeed reminiscent of a functional method. However, due to the lack of a uniform approach to qualification and identification of the only way to proceed by the doctrine and case law, it is permissible to move away from the use of this method. For instance it is possible to use the lex causae approach, if it leads to an equitable solution.

Lack of regulation of qualification gives a person applying the law a freedom, but at the same time leads to uncertainty about the effects.