Private International & Domicile Law Simplified

 

Private International law is the foundation to law of domicile, and is subject matter jurisdiction.

Private international law is the the area of law for the federal governments and/or sovereign of the territory to incorporate into one giant Municipal Land Trust Corporation.

Law of Domicile is for the Provinces, and Municipalities, and is referred to residences for the subject of the sovereign of the territory.

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

§ 104. General Remarks – "Every person receives at birth a domicil, technically known among modern jurists as “domicil of origin.” Says Lord Westbury in Udny v. Udny : “It is a settled principle 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 domicil of his father if the child is legitimate, and the domicil of his mother if legitimate. This has been called the domicil of orgin, and is INVOLUNTARY.

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What is EMANCIPATION?

The act by which one who was unfree. or under the power and control of another, is set at liberty and madeliis own master


 

Emancipation to dispose of his person

Then may choose at his own free will.

Municipal law is the restriction aka disability in law that must be removed. -Law of Agency

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Domicile Law From Wikipedia

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.


Private International Law Or Conflict of LawsFrom Wikipedia

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.
  • 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.


 

Private International Law is Law of Succession.

Private International Law & Law of Domicile explains the different levels of Admiralty law Jurisdictions

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

STATEMENT OF THE QUESTION

The Legal Relations

  • Rights to specific things
  • Obligations
  • Rights to a whole estate, as an ideal object of indefinite extent: Succession
  • Family relations

From this summary, it is evident that the first and im- mediate object to which the rule of law applies is the person ; and while it is, in the first instance, the person in its general character, as the subject and center of all rights, it is also the person, in so far as, by its free actions in the most numerous and most important cases, it produces, or helps to produce, the legal relations.

But the person expands itself into artificial extensions of its being. It seeks to have dominion over things, and thus betakes itself to the place which these things occupy possibly, therefore, enters the territory of a foreign law. This takes place most distinctly in respect of immoveables, the site of which is not accidental and changeable ; but, in reality, it is not less true of things moveable. By means of obligations, a person seeks to control the actions of others, or to subject his own acts to an- other's will. He enters into particular forms of life by the family; and thus also in many ways, sometimes voluntarily, sometimes involuntarily, oversteps the limits of his original and purely personal rights.

It follows, from these considerations, that the rule of law applicable to every given case is determined and bounded, first and chiefly, by the subjection of the person concerned to the law of a certain territory; but that, at the same time, there may be the most numerous and most important modifications, in con- sequence of the relation in which certain things or certain acts or relations of life stand towards the laws of other territories.


Jurisdiction

Jurisdiction (from the Latin ius, iuris meaning "law" and dicere meaning "to speak") is the practical authority granted to a legal body to administer justice within a defined area of responsibility, e.g., Michigan tax law. In the federations like USA, areas of jurisdiction apply to local, state, and federal levels; e.g. the court has jurisdiction to apply federal law.

Colloquially it is used to refer to the geographical area to which such authority applies, e.g. the court has jurisdiction over all of Colorado. The legal term refers only to the granted authority, not to a geographical

Jurisdiction draws its substance from public international law, conflict of laws, constitutional law, and the powers of the executive and legislative branches of government to allocate resources to best serve the needs of its native society.


Admiralty Law

Admiralty law or maritime law is a distinct body of law that governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities that operate vessels on the oceans. It deals with matters including marine commerce, marine navigation, marine salvaging, shipping, sailors, and the transportation of passengers and goods by sea. Admiralty law also covers many commercial activities, although land based or occurring wholly on land, that are maritime in character.

Admiralty law is distinguished from the Law of the Sea, which is a body of public international law dealing with navigational rights, mineral rights, jurisdiction over coastal waters and international law governing relationships between nations.

Although each legal jurisdiction usually has its own enacted legislation governing maritime matters, admiralty law is characterized by a significant amount of international law developed in recent decades, including numerous multilateral treaties.


Information Sources

Law of Domicile & Private International Law Jurisprudence Private International Law. A Treatise on the Conflict of Laws: And the Limits of Their Operation, by Friedrich Karl von

A Treatise on Private International Law: Or the Conflict of Laws by Westlake

The theory and practice of private international law, second edition by Bar, L. v. (Ludwig von), 1836-1913

The Elements of International Law: With an Account of Its Origin Sources and Historical Development by George Breckenridge Davis

By What Law Domicile Is Determined By Harvard Law Review

The Law of Domicile as a Branch of the Law of England: Stated in the Form of Rules by Albert Venn Dicey

The Domicile of Persons Non Sui Juris Bt Harvard Law Review

Distinction between Residence and Domicile by Virginia Law Review

Domicile of Persons Non Sui Juris. Intention as to Future Domicile By Harvard Law Review

Private International Law: The Law of Domicile pdf By lawcom.gov.uk

Change of Sovereignty and Private Ownership of Land By The American Journal of International Law


International Law and Municipal Law


Public International Law

Corpus Juris Civilis From Wikipedia

How far the Corpus Juris Civilis or any of its parts was effective, whether in the east or (with reconquest) in the west, is unknown. However, it was not in general use during the Early Middle Ages. After the Early Middle Ages, interest in it revived. It was "received" or imitated as private law and its public law content was quarried for arguments by both secular and ecclesiastical authorities. This revived Roman law, in turn, became the foundation of law in all civil law jurisdictions. The provisions of the Corpus Juris Civilis also influenced the canon law of the Roman Catholic Church: it was said that ecclesia vivit lege romana — the church lives by Roman law.[2] Its influence on common law legal systems has been much smaller, although some basic concepts from the Corpus have survived through Norman law - such as the contrast, especially in the Institutes, between "law" (statute) and custom

The Corpus continues to have a major influence on public international law. Its four parts thus constitute the foundation documents


Case Law

Németh v. Canada

it is presumed that the legislature acts in compliance with Canada’s obligations as a signatory of international treaties and as a member of the international community as well as in conformity with the values and principles of customary and conventional international law:

R. v. Hape, 2007 SCC 26

Chief Justice McLachlin confirmed that customary international law is considered part of Canadian law:

Despite the Court’s silence in some recent cases, the doctrine of adoption has never been rejected in Canada. Indeed, there is a long line of cases in which the Court has either formally accepted it or at least applied it. In my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty, Canada declares that its law is to the contrary. Parliamentary sovereignty dictates that a legislature may violate international law, but that it must do so expressly. Absent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law. (para. 39)

1976 SCC 29

fraud on the Court

In Bonaparte v. Bonaparte (supra) a fraud was perpetrated on the Scottish court by allowing it to act on the assumption that the pursuer was domiciled in Scotland and that there had been no collusion. It was held that the Scottish Court was without jurisdiction to pronounce a decree in this collusive suit and the decree pronounced was held to be null and void. The issue was one of want of jurisdiction but it was treated as one of fraud on the Court. It should be noted that “jurisdiction” in Bonaparte v. Bonaparte was used in a private international law sense rather than in what might be termed a “domestic competence” sense, but I do not think that serves to make the case inapplicable

1986 BCSC 1044

(15) “the Sovereign” is simply a modern form of the prerogative writs which were commands by the Sovereign ensuring obedience to the law.

1988 SCC 85

1 SCR 950 , p.959 …long established rule of international law; “That no independent sovereignty is to be construed to contract itself, by implication, out of it’s fundamental sovereign rights. …”

Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission)

This difference flows from the nature of corporate existence. While individuals as a rule have full legal capacity by the operation of law alone, artificial persons are creatures of the state and enjoy civil rights and powers only upon the approval of statutory authorities.

A.G. Can. v. Law Society of B.C

Earlier in his judgment Pigeon J. quoted from Chief Justice Ritchie in Valin v. Langlois (1879), 3 S.C.R. 1, at pp. 19-20:

2. ... These courts [provincially organized superior courts] are surely bound to execute all laws in force in the Dominion, whether they are enacted by the Parliament of the Dominion or by the Local Legislatures, respectively. They are not mere local courts for the administration of the local laws passed by the Local Legislatures of the Provinces in which they are organized. They are the courts which were the established courts of the respective Provinces before Confederation, . . . They are the Queen's Courts, bound to take cognizance of and execute all laws, whether enacted by the Dominion Parliament or the Local Legislatures.

Rochon (Litigation Guardian) v. British Columbia, 2007 BCSC 1060

[29] Upon the request of the Court, counsel looked further into the legislative history of the Crown Proceeding Act, specifically, the recommendations of the Law Reform Commission of British Columbia which preceded that legislation. In its Report on Civil Rights: Part 1 – Legal Position of the Crown, (1972), the Law Reform Commission reviewed the common law of Crown immunity, analyzed various options, and made a number of recommendations.

(30) With respect to the identity of the Crown, the Commission wrote at page 9:

The word “Crown” may be confusing to some. In law, the Crown is a term of art, the meaning of which bears little resemblance to the chattel that sits in the Tower of London to be gazed at by sightseers. The “Crown” is a description for Her Majesty Elizabeth II in her legal personage as Sovereign. The expression describes “…corporate legal entity to which the law ascribes the legal rights and obligations of the various semi-sovereign units of government created by the BNA Act” It is necessary to speak of the Crown in the right of “the particular unit of government”. Therefore, the for our purposes is Her Majesty in the right of BC.

Divito v. Canada (Public Safety and Emergency Preparedness) SCC

[22] Canada’s international obligations and relevant principles of international law are also instructive in defining the right: Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292. In Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, Dickson C.J., dissenting, described the template for considering the international legal context as follows:

The content of Canada’s international human rights obligations is, in my view, an important indicia of the meaning of “the full benefit of the Charter ’s protection”. I believe that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified. [p. 349]

[23] More recently, in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, McLachlin C.J. and LeBel J. confirmed that, “the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified”


Definitions

lex loci actus

The law of the place where a legal act takes place. In private international law, this law governs such questions as whether or not property in a bill of exchange or promissory note passes to the transferee and the formal validity of an assignment of an intangible movable (e.g. a share in a trust fund). See also lex loci celebrationis; lex loci contractus.

What is IN PERSONAM, IN REM? Blacks Law Dictionary

In the Roman law, from which they are taken, the expressions”in rem” and “in personam” were always opposed to one another, an act or proceeding in personam being one done or directed against or with reference to a specific person, while an act or proceeding in rem was one done or directed with reference to no specific person, and consequently against or with reference to all whom it might concern, or “all the world.” The phrases were especially applied to actions; an actio in personam being the remedy where a claim against a specific person arose out of an obligation, whether ex contractu or ex malcficio. while an actio in rem was one brought for the assertion of a right of property, easement, status, etc., against one who denied or infringed it. See Inst. 4, 6, 1; Gains, 4, 1, 1-10; 5 Sav. Syst. 13, et seq.; Dig. 2, 4, 7,8; Id. 4. 2, 9, 1.From this use of the terms, they have come to be applied to signify the antithesis of”available against a particular person,” and “available against the world at large.” Thus,jura in personam are rights primarily available against specific persons; jura in rem.rights only available against the world at large.So a judgment or decree is said to be in rem when it binds third persons.

Such Is The sentence of a court of admiralty on a question of prize, or a decree of nullity or dissolution of marriage, or a decree of a court in a foreign country as to the status of a person domiciled there

Lastly, the terms are sometimes used to signify that a judicial proceeding operates on a thing or a person. Thus, it is said of the court of chancery that it acts in personam-, and not in rem, meaning that its decrees operate by compelling defendants to do what they are ordered to do, and not by producing the effect directly. Sweet. See Cross v.Armstrong, 44 Ohio St 613, 10 N. E. 160; Cunningham v. Shanklin, 60 Cal. 125; Hill y.Henry, 66 N. J. Eq. 150, 57 Atl. 555.In personam actio est, qua cum eo agimus qui obligatus est nobis ad faciendumaliquid vel dandnm. The actioi in personam Is that by which we sue him who is underobligation to us to do something or give something.

What is INTERNATIONAL COMMERCE

The law which regulates the intercourse of nations; the law of nations. 1 Kent, Comm. 1, 4. The customary law which determines the rights and regulates the intercourse of inde- pendent states in peace and war. 1 Wildm. Int. Law.

The system of rules and principles, founded on treaty, custom, precedent, and the consensus of opinion as to justice and moral obligation, which civilized nations recognize as binding upon them in their mutual dealings and relations.

Public international law is the body of rules which control the conduct of independ- ent states in their relations with each other. Private international law is that branch of municipal law which determines before the courts of what nation a particular action or suit should be brought, and by the law of what nation it should be determined; in other words, it regulates private rights as dependent on a diversity of municipal laws and jurisdictions applicable to the persons, facts, or things in dispute, and the subject of it is hence sometimes called the "conflict of laws."

Thus, questions whether a given person owes allegiance to a particular state where he is domiciled, whether his status, property, rights, and duties are governed by the lex sit (Is. the lex loci, the lex fori, or the lex domicilii, are questions with which pri- vate international law has to deal. Sweet; Roche v. Washington, 19 Ind. 55, 81 Am. Dec. 37a

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