Excerpt
Inhaltsverzeichnis
I. Effectiveness of law.
II. Changeability, reflection of the modern world and application.
III. Ordinary meaning approach.
IV. Without a habitual residence.
V. Underdeveloped concept.
VI. Uniformity to support the internal market.
VII. Conclusion.
VIII Bibliography
The concept of habitual residence as a connecting factor in the conflict of laws received extended usage over the last decades, after the Second World War, and enjoys great popularity in the Hague Conventions and Rome regulations. Insofar it is a successful concept that took hold in the realm of private international law, but being successful in the sense of being used in different legal regimes and various legal instruments does not equal being effective.
I. Effectiveness of law.
Generally speaking, the effectiveness of law is assessed through “the degree of compliance”1. This seems appropriate for many areas of law such as the criminal law or the law of contract where the prevention of certain acts or the facilitation of agreements can be measured. For a connecting factor however another approach is needed, because habitual residence is not a rule, which demands compliance, but allocates connection to a state.
I will therefore assess the effectiveness of habitual residence as a connecting factor based on considerations of how many scenarios are governed, how predictable the results of the application of the concept are and how broad the application can be. When doing this I will also factor in to what extend the concept reflects modern, globalized society and what advantages and disadvantages it has compared to other connecting factors.
The aim of a connecting factor in private international law is to establish to which jurisdiction an individual has the closest connection in a certain set of circumstances, which leads to the jurisdiction of the court of this country and the choice of law in limited instances.
II. Changeability, reflection of the modern world and application.
Habitual residence is a concept that allows for the change of this connection to a state to occur easily and quickly2, which makes it a modern concept that reflects the quickly changing living arrangements and the great amount of travel and interstate movement in the globalised world. In contrast to this domicile has less leverage to shift the connection of the individual to a different country, as a domicile of choice is hard to acquire and the domicile of origin presumed to continue.3 The English Law Commission believes this to be an advantage of domicile over habitual residence4 while the Irish counterpart disagrees5.
Considering the concept only in these aspects of changeability and reflection of the modern world, in my opinion, habitual residence is more effective then domicile, because this concept is applicable to a wide range of scenarios in which domicile does not lead to the ‘right’ or, better to say, understandable result.
An example of such a scenario is the following: A man moved from country A to country B with the intention to settle there on a long term basis, but without the intention to stay indefinitely as he might want to return to an after retirement, in 20 years. After years of living in country B he still would be domiciled in A6 and therefore the law of this country governs various matters, even though he is fully integrated in the society and legal system of B. Habitual residence gives in this case the better understandable, opposite result. However, the English Law Commission uses a counter example7 with employment on a long-term contract in Saudi Arabia. In this scenario the application of the matrimonial law of Saudi Arabia might not be wanted, but the Law Commission does not consider the fact that the courts of the place where someone habitually resides can be more convenient and easier to attend then those in England.
Concluding this, the assessment of the application to scenarios in which domicile and habitual residence lead to different results is on its own not sufficient enough to determine the effectiveness of habitual residence and therefore the evaluation of other aspects is necessary.
III. Ordinary meaning approach.
The approach to give habitual residence its ordinary meaning is such an aspect.
The concept of habitual residence is a compromise for international conventions and EU regulations to receive consensus. These legal instruments, however, lack a definition of the concept. This is a “deliberate policy”8 choice to avoid technical rules and hence the meaning of habitual residence has to be determined by its “ordinary and natural meaning”9.
The ordinary meaning can be explained to a layperson without reference to artificial rules and is in that sense effective, because officials and individuals alike can handle the determination of habitual residency without the need to go to court. The concept is insofar law for the people, which can be understood with common sense. Problematic is this where the ordinary meaning is not clear or changes from country to country, especially in the case of translation in a different or multiple languages, which therefore makes is less predictable in the outcome and does not secure uniformity across the different jurisdictions. As an example, the German translation for “habitual residence” is “gewöhnlicher Aufenthalt”10. The ordinary meaning of ‘Aufenthalt’ corresponds exclusively with ‘presence’, while ‘residence’ implies more than that in the sense that if someone took residence he established his home. Viewed from this angle, the concept would not be effective, because it lacks uniformity across borders. However, the case law in the area, especially the harmonizing judgements of the European Court of Justice, allows overcoming that problem.
On the other hand, those frequent decisions of higher courts and the long discussions11 in academic writing on the meaning of habitual residence show that to determine the meaning with common sense is more complicated then ‘ordinary meaning’ would suggest.
Habitual residence is not treated as an artificial term of art and the judgements give guidance on the interpretation, but no strict definitions or rules are used. Instead the courts point out factors, which should be considered in the evaluation where an individual has his or her habitual residence. In the leading cases of Swaddling v Adjudication Officer12 and Re Proceedings brought by A13 the European Court of Justice list various factors such as duration, employment, family situation and social integration, which should be taken into account “in particular”14, but it leaves the enumeration non-exhaustive. All circumstances of the case can be considered and no facts are of the table in the evaluation.
The assessment of the habitual residence is therefore on a case-by-case basis. Smith stated, that this approach permits the concept to be free of over-definition and over-refinement15. This is still true to a certain extent, but the amount of case law made the determination of habitual residence more complex16. All circumstances can be considered and all factual data can be used by the court in the evaluation, which therefore makes it a concept that is good to use in the basic and non-ambiguous cases, but leaves uncertainties for the more complicated patterns of fact.
On the other hand, this case-by-case approach gives the courts the leverage to use the concept to explore the circumstances and find the closest connection of the individual to a state, even for those complicated cases where the outcome is hardly predictable.
In contrast to this, domicile is even more complex with its multiple rules and doctrines. It is also not more predictable and leaves uncertainty in extreme cases, because the proof of the intention to settle indefinitely is hard to satisfy and the result is often impossible to predict without recourse to litigation17. However, the doctrine of revival gives certainty in difficult cases, because it never allows for an individual to be without a domicile, even though this can lead to obscure results.
In conclusion I can say that the ordinary meaning approach and the case-by-case evaluation allow the courts to determine the closest connection to a state through the connecting factor of habitual residence in a way that is factual and understandable for a layperson. The outcome does not depend on the standard and bourdon of proof to the same extend, as it is the case with domicile, because all circumstances can be taken into account. Considering this aspect of the concept it can be said that it is effective as a connecting factor.
IV. Without a habitual residence.
The most effective connecting factor would be one that is free of problems in the application. This however is utopian and therefore habitual residence is not without problems. One, which is pointed out regularly, is that the concept of habitual residence can lead to the result that an individual is without a habitual residence. If someone does not habitually reside anywhere, he or she cannot avail of certain provisions, for example consumer protection18 or protection under the Conventions on child abduction19.
The problem of being without a habitual residence appears in two different scenarios. First, the individual abandoned his or her habitual residence and is now in the situation of waiting until the new residence becomes habitual. Second, there is the possibility to live a nomadic life and therefore this person is without a residence at all.
The abandonment of the habitual residence in the first scenario takes place in a single day when leaving the country indefinitely20. The newly required residence however is not habitual from the day of arrival in the new country but requires a sufficient time to become habitual21. This leaves a gap when he or she is not a habitual resident of either of those two countries. At the first look, this makes the concept ineffective as a connecting factor, because it leaves it unable to find the closest connection, as the result is that there is no such connection. On the other hand it can be said that this is the correct reflection of the present situation.
I believe that the problem is not as grave as some academic writing might suggest. The presence in the new location is a conditio sine qua non to accept this place as residence, because you cannot be a residence of a place you have never been to22, but the length of stay alone is not the only factor. As stated above, all circumstances have to be taken into account and therefor the gap can be insignificantly small. The European Court of Justice does in general not allow for a residence to be too short to be habitual23.
It is, however, different for the second scenario, because there the question does not arise around ‘habitual’, but the ‘residence’. The person, who has no residence at all, naturally cannot have a habitual one, but to fall under this category of people someone has to live a nomadic live without a center of interest. Examples for this can rarely be found and include the Roma and travelling artists and carnies. There still are nomadic living Roma, but most Roma communities now are established permanently and the number of those traveling across borders is small. Furthermore, I would like to point out that the habitual residence as a connecting factor is used to determine the connection, hence jurisdiction and choice of law, to one country, not a specific place within this country. Therefore I would not consider a tribe of Roma without habitual residence in one country if they move nomadically around this county and then cross the border to another one. Rather they are habitual resident in the first and then later in the second one.
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1 Anthony Allott, The Effectiveness of Laws, (1981) 15 Val. U. L. Rev. 229, 234.
2 James Fawcett, Janeen M Carruthers and Sir Peter North (ed.), Chesire, North & Fewcett on Private International Law, 14th ed. (2008), p. 188.
3 James Fawcett, Janeen M Carruthers and Sir Peter North (ed.), Chesire, North & Fewcett on Private International Law, 14th ed. (2008), p. 171.
4 Law Commission Report on Private International Law: The Law of Domicile (1987), paras. 3.5-3.8.
5 Irish Law Reform Commission, Report on Domicile and Habitual Residence as Connecting Factors, (1983), para 6.
6 Compare Winans v A-G 1904 AC 287.
7 Law Commission Report on Private International Law: The Law of Domicile (1987), para. 3.6.
8 David McClean and Kisch Beevers, The Conflict of Laws by Morris 8th ed. (2012), para 2-004.
9 Lord Brandon of Oakbrook in In re J. (A Minor)(Abduction) 1990 AC 562, 578.
10 For example in Art 1 of the Convention on Protection of Minors (1961).
11 Pippa Rogerson, Habitual Residence: The New Domicile?. (2000) 49 ICLQ 86, 90-93; James Fawcett, Janeen M Carruthers and Sir Peter North (ed.), Chesire, North & Fewcett on Private International Law, 14th ed. (2008), p. 185-195.
12 C-90/97, 1999 ECR-I-1075.
13 C-523/07, 2009 ECR-I-2805.
14 C-90/97, 1999 ECR-I-1075, para 29; C-523/07, 2009 ECR-I-2805, para 2.
15 Raymond Smith, Conflict of Law, (1993), para 2-10.
16 With the same conclusion James Fawcett, Janeen M Carruthers and Sir Peter North (ed.), Chesire, North & Fewcett on Private International Law, 14th ed. (2008), p. 186.
17 Ibid. p. 181.
18 Art 9 (5) (EC) No 44/2001 of 22 December 2000 („Brussels I Regulation“)
19 Re J. (A Minor)(Child Abduction) 1992 1 FLR 548.
20 Al Habtoor v Fotheringham 2001 EWCA Civ 186, 2001 1 FLR 951, para 25.
21 Compare the view of Lord Slynn of Hadley in Nessa v Chief Adjudication Officer 1999 1 WLR 1937, 1940.
22 David McClean and Kisch Beevers, The Conflict of Laws by Morris 8th ed. (2012), para 2-007.
23 C-90/97, Swaddling v Adjudication Officer 1999 ECR-I-1075, para 30.