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I am grateful to Professor Christopher Forsyth for helpful comments, and to Professor Mary Keyes for giving me an opportunity to present ideas contained in this article at the Journal of Private International Law Colloquium held at Griffith University on 1 October 2010.
I.
INTRODUCTION
Two of the most complex concepts in private international law are classification (or characterization or categorization) and renvoi. One situation in which both concepts can be relevant is where the forum's conflict rules specify a foreign law as the law governing the obligation in question and the defendant argues that the action is time-barred, by which is meant that the claim must be dismissed on the ground that no proceedings were brought within a certain period of time from a certain date (for instance within three years from the accrual of the cause of action). Problems of classification arise where the lex fori and the lex causae 1 differ on the question of whether a certain statute of limitation belongs to the procedural or the substantive law of its legal system. Renvoi is an option where the lex fori and the lex causae use different connecting factors for the obligation in question. This article compares the different ways in which Australian and South African courts have tackled choice-of-law issues in the context of the limitation of actions.
Australian and South African courts used to be spared any exercise in classification or renvoi in the context of the limitation of actions, for two cumulative reasons. The first is the distinction in English common law between statutes of limitation that merely bar the remedy, and statutes that extinguish the right. The former are classified as procedural and thus governed by the lex fori, the latter are classified as substantive and thus governed by the lex causae.2 This distinction spread to jurisdictions that were influenced by or wholly adopted English law, including Australia3 and South Africa.4 The second reason is that the English courts have interpreted the phrase 'an action shall not be brought' in the Limitation Act 1980 (UK) and its predecessors as merely barring the remedy and thus as procedural under the traditional classification system.5 Australian6...