CYIL Vol. 7, 2016

DALIBOR JÍLEK – JANA MICHALIČKOVÁ 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.


Made with