CYIL Vol. 7, 2016

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.

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