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CYIL 7 ȍ2016Ȏ
either coincides with or contradicts domicile.
65
In the latter case domicile appeared
to be a less appropriate connecting factor, as it contained something fictitious and
was thus less practical.
The Arrangement Relating to the Legal Status of Russian and Armenian Refugees
placed both connecting factors at the same level and thus created equivalence, an
identical relationship and position. Parties to the arrangement decided on application
of the one or the other connecting factor. But the session of the Hague conference
proves that jurists reached the point of reversal. Their theoretical debates on concepts
led to the result that domicile had been being continuously replaced by the factual
concept, even if Art. 8 of the drafted treaty on the law of succession contained the
domicile in the jurisdiction clause.
66
Jurists became persuaded that habitual residence
would fulfil the conceptual role more effectively. The interpretation of the factual,
descriptive concept appeared to be more plain and closer to the expected interpretation
uniformity. The reason behind this was the divergence of interpretation of the legal
concept in national law.
Following the proposition of the International Law Association, the VIth session of
the Hague Conference of 1928 included deliberations on a treaty on the international
sale of goods. Two connecting factors were at stake: the law of the seller or of the
buyer. The applicable law was bound to the place of habitual residence of the seller
or buyer at the time of an agreement. The Swedish delegate noted on that point that
domicile is a legal concept whereas residence is a question of fact.
Originally, during the Hague Conference, the proposed drafts used the linguistic
unit “
résidence ordinaire
”. Upon the suggestion of the German delegate Neumeyer,
this phrase was replaced by the constituent “
résidence habituelle
”.
67
The Arrangement
Relating to the Legal Status of Russian and Armenian refugees employed the
identical constituent. Consequently, there was a linguistic unity between the
Arrangement, the formal part of international law and drafts deliberated at the
Hague Conference on Private International Law. Even though the negotiated
outcomes of the Hague Conference did not receive adequate response, the factual
concept acquired codification importance. This concept introduced other concepts
of a legal nature into a subsidiary role.
The VIIth Hague Conference, organised in 1951, came back to the draft on
the convention on international sales of goods. Upon the suggestion of the Special
Committee, habitual residence was once again used as a connecting factor for the
applicable law. Art. 3 of the Convention lays down:
A défaut de loi déclarée applicable par les parties, dans les conditions prévues à
l’article précédent, la vente est régie par la loi interne du pays où le vendeur a sa
65
Ibid
., p. 141.
66
Ibid
., p. 407.
67
Ibid
., p. 290.