Private International law or conflict of laws

(both terms are used interchangeably) concerns relations across different legal jurisdictions between natural persons, and sometimes also companies, corporations and other legal entities.

Choice of laws


Courts faced with a choice of law issue have a two-stage process:

1. The court will apply the law of the forum (lex fori) to all procedural matters (including, self-evidently, the choice of law rules);
and
2. It counts the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection, e.g. the law of nationality (lex patriae) or the law of habitual residence (lex domicilii). (In Latin, domicilium means home or residence.) (See also 'European Harmonization Provisions': "The concept of habitual residence is the civil law equivalent of the common law test of lex domicilii".) The court will determine the plaintiffs' legal status and capacity. The court will determine the law of the state in which land is situated (lex situs) that will be applied to determine all questions of title. The law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive, but the proper law has become a more common choice.

Law of Domicile also knows as the Conflict in laws

In law, domicile is the status or attribution of being a lawful permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after he has left it, if he has maintained sufficient links with that jurisdiction or has not displayed an intention to leave permanently (i.e. if that person has moved to a different state but has not yet formed an intention to remain there indefinitely).

Traditionally many common law jurisdictions considered a person's domicile to be a determinative factor in the conflict of laws and would, for example, only recognize a divorce conducted in another jurisdiction if at least one of the parties were domiciled there at the time it was conducted.

Description

In early societies, there was little mobility but, as travel from one state to another developed, problems emerged: what should happen if different forms of marriage exist, if children became adults at different ages, etc.? One answer is that people must be given a connection to a legal jurisdiction, like a passport, that they carry with them wherever they go.

Domicile is governed by lex domicilii, as opposed to lex patriae which depends upon nationality, which is the relationship between an individual and a country. Where the state and the country are co-extensive, the two may be the same. However:

Where the country is federated into separate legal systems, citizenship and domicile will be different. For example, one might have United States citizenship and a domicile in Kentucky, Canadian citizenship and a domicile in Quebec, or Australian citizenship and a domicile in Tasmania.
One can have dual nationality but not more than one domicile at a time. A person may have a domicile in one state while maintaining nationality in another country.
Unlike nationality, no person can be without a domicile even if stateless.

Domicile is distinct from habitual residence where there is much less focus on future intent. Domicile is being supplanted by habitual residence in international conventions dealing with conflict of laws and other private law matters.
General principles

birth domicileA person can have only one domicile at any given time, and the manner in which it could change was explained in 1869 in the House of Lords by Lord Westbury in Udny v Udny:

It is a settled principle, that no man shall be without a domicile, and to secure this result the law attributes to every individual as soon as he is born the domicile of the father if the child be legitimate, or the domicile of the mother if illegitimate. This has been called the domicile of origin, and it is involuntary. Other domiciles are domiciles of choice, for, as soon as the individual is sui juris, it is competent to him to elect and assume another domicile, the continuance of which depends upon his will and act. When another domicile is put on, the domicile of origin is for that purpose relinquished, and remains in abeyance during the continuance of the domicile. But as the domicile of origin is the creature of law, and independent of the will of the party, it would be inconsistent with the principles on which it is by law created and ascribed, to suppose, that it is capable of being, by the mere act of the party, entirely obliterated and extinguished. It revives and exists whenever there is no other domicile, and it does not require to be regained or reconstituted animo et facto in the manner which is necessary for the acquisition of a new domicile of choice.

Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place with the unlimited intention of continuing to reside there. This is a description of the circumstances which create or constitute a domicile, and not a definition of the term. There must be a residence freely chosen and not prescribed or dictated by any external necessity such as the duties of office, the demands of creditors, or the relief of illness. And it must be residence fixed not for any defined period or particular purpose, but general and indefinite in its future duration. It is true, that residence originally temporary, or intended only for a limited period, may afterwards become general and unlimited, and in such a case, so soon as the change of purpose or the animus manendi may be inferred, the fact of domicile of origin may be extinguished by act of law, as, for example, by sentence of death, exile, and perhaps outlawry, but it cannot be destroyed by the act of the party. Domicile of choice, if it is gained animo et facto, may be put an end to in the same manner.

Sui Juris right Expressions are found in some books in one or two cases, to the effect, that the first domicile remains until another is acquired. This is true, if applied to the domicile of origin, but it cannot be true if such general words were intended (which is not probable) to convey the conclusion, that a domicile of choice, though unequivocally relinquished and abandoned, clings, in spite of his will and act. to the party until another domicile has animo et facto been acquired. The cases to which I have referred are in my opinion met and controlled by other decisions, but more especially by the reason of the thing. A natural born Englishman may, if he domiciles himself in Holland, acquire the status civilis of a Dutchman, which is of course ascribed to him in respect of his settled abode in Holland, but if he breaks up his establishment, sells his house and furniture, discharges his servants, quits Holland, declaring that he will never return to it again, and taking with him his wife and children for the purpose of travelling in France or Italy in search of another place of residence, can it be said, that he carries his Dutch domicile on his back, and that it clings to him pertinaciously until he has finally set up his tabernacle in another country? Such a conclusion would be absurd. But there is no absurdity, but, on the contrary, much reason in holding, that an acquired domicile may be effectually determined by an unequivocal intention and act, and that, when it is so determined, the domicile of origin instantly revives, and continues until a new domicile of choice is acquired.

A treatise on the law of domicil, national, quasi-national and municipal, based upon the decisions of the British and American courts

by Jacobs, Michael William 1887

ss104-Every person recieves at birth a domicil, technically known among jurist as “domicil of origin”. Says lord Westbury in Udny v Udny : “it is a settled principal that no man shall be without a domicil; and to secure this result the law attributes to every individual as soon as he is born the domicile of his father if the child be legitimate, and the domcil of his mother if illegitimate. This has been called the domicil of origin, and is involuntary.

Conflict of laws or private international law


Conflict of laws or private international law (both terms are used interchangeably)[1] concerns relations across different legal jurisdictions between persons, and sometimes also companies, corporations and other legal entities.[2][3] Choice of laws Courts faced with a choice of law issue have a two-stage process: the court will apply the law of the forum (lex fori) to all procedural matters (including, self-evidently, the choice of law rules); and it counts the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection, e.g. the law of nationality (lex patriae) or residence (lex domicilii)[domicilium in Latin means home or residence and see at 'European Harmonization Provisions':

"The concept of habitual residence is the civil law equivalent of the common law test of lex domicilii".] will define legal status and capacity, the law of the state in which land is situated (lex situs) will be applied to determine all questions of title, the law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive, but the proper law has become a more common choice

Dow Jones v Gutnick [2002] HCA 56

Conflict of laws or private international law,From Wikipedia


Private International Law. A Treatise on the Conflict of Laws: And the Limits of Their Operation

Chapter 1 pdf pg 61 STATEMENT OF THE QUESTION.

13 Every right presents itself in its primary aspect as a power belonging to the person (b)y and, accordingly^ as a quality of that person ; and from this most direct and rudimentary standpoint we have to regard legal relations also as attributes of persons. In this way the question with which we are engaged would be viewed thus :

Over what persons does each rule of law extend its authority ? or, conversely (§ 344) :

Municipal Jurisdictions

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