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CYIL 7 ȍ2016Ȏ
THE CONCEPTUAL ROLE OF HABITUAL RESIDENCE
The sessions of the Institute in 1877 in Zurich and a year later in Paris did not
come back to Mancini’s regulation. After the Institute was enlarged by the Private
International Law Committee, Arnzt and Westlake, as co-rapporteurs, together
with Mancini were empowered to draft general guidelines. For the next session
of the Institute in Brussels in 1879 Arnzt and Westlake prepared a draft which
emerged from Mancini’s approach.
35
However, Westlake noted that domicile, and
not nationality, should govern personal status.
36
Art. 6 regulated the legal status and
capacity of a person as follows:
Status and capacity of a person are governed by the laws of the place to which a person
belongs through his nationality, but they shall be governed by the laws of the place of
his domicile of origin when different civil legislation exist in that State.
If a person has no known nationality, his status and capacity are governed by the
laws of his domicile.
The suggested provision as one normative entity provided for an order in
connecting factors for personal law. The principle of nationality gained precedence.
This principle was conditioned by physical space, a place to which a person belonged
through his nationality. And the place was regulated by legal order in accordance
with the international principle of territoriality. In the case of a federal state, such
as Switzerland or the United States of America, the domicile of origin should have
been applied. On the other hand, a stateless person should have been subject to his
domicile of choice. The draft prepared by Arnzt and Westlake did not refer to any
substance of these legal concepts as established in the national laws of some states,
but it was rather dependent upon national legal order.
37
Nevertheless the purpose
of the concepts used was identical – to determine the legal order applicable to the
personal status and capacity of an individual.
The Oxford session of the Institute, 7 to 10 September 1880, partially revealed
the substance of these concepts.
38
Domicile of origin was based on the fixed legal fact
of birth. On the other hand, the substance of the concept of domicile connected with
free will was not consolidated in the international law instruments. Its structure was
probabilistic. The discrepancy in opinions did not lie in the conceptual component
(factum) but rather in the subjective component (
animus
) and in its necessity
35
NADELMANN, Kurt H.,
op. cit.
, p. 429.
36
WESTLAKE, John.
A Treatise on Private International Law with Principal Reference to its Practice in
England.
Second edition, London: William Maxwell & Son, 1880, p. 43: “Whenever the operation
of a personal law is admitted in England, the domicil of the person in question and not his political
nationality, is considered to determine such personal law.”
37
REESE, Willis L. M. and GREEN, Robert S.
That Elusive Word, “Residence”
.
Vanderbildt Law Review
,
1952–1953, Vol. 6, p. 561: “Domicil has a reasonably constant meaning.”
38
See DICEY, Albert Venn.
The Law of Domicile as a Branch of the Law of England, Stated in the Form of
Rules
. London: Stevens and Sons, 1879;
The Spectator
. Dicey on the Law of Domicile, 9 August 1879,
pp. 20-21.