CONFLICT OF

LAWS
WEEK 1
 Conflict of Laws
or

Private International Law

or

International Private Law

2
TOPIC 1- NATURE AND SCOPE
OF CONFLICT OF LAWS
Purpose
The English (and
common law) Conflict
of Laws is a body of
rules whose purpose
is to assist the court in
deciding a matter
where there is a
foreign element.
CHOICE OF LAW RULES

COURTS FACED WITH A CHOICE OF LAW ISSUE HAVE A TWO-STAGE PROCESS:

1. the court will apply the law of the forum (lex fori) to all
procedural matters

2. it counts the factors that connect or link the legal

issues to the laws of potentially relevant states and
applies the laws that have the greatest connection

4
WHAT THE COURT
CONSIDERS
 (i) the jurisdiction of an English court
 (ii) the selection of the appropriate
rules of asystem of law, English or
foreign
 (iii) the recognition and enforcement
of judgments rendered by foreign
courts or awards of foreign arbitrations.
WHY
 because the proposed defendant is not in
England when the claimant tries to serve
him with the process of the English court
 Because the case contains a foreign element
CONFLICT OF LAWS
AREAS OF INTEREST
 This is concerned with all of the civil and
commercial law.
 It is not concerned with criminal,
constitutional or administrative cases
COVERED AREAS
 It covers the law of obligations; contract
and tort, and the law of property both
immovable and movable, whether a
question of title arises inter vivos or by way
of succession.
 It is concerned also with family law,
including marriage and divorce, and
guardianship and the relations of parent
and child.
 Recognition or enforcement of a judgment
in some civil or commercial matter may be
called for whether it was for breach of
contract or a tort (delict).
AS A MATTER OF RULE
 In terms of its application, every country
in the world which is not part of England
and Wales is a foreign country and its
foreign law.
THE BASIS OF CONFLICT OF LAWS
CHESHIRE & NORTH
 There is no sacred principle that
pervades all decisions but, when the
circumstances indicate that the
internal law of a foreign country will
provide a solution more just, more
convenient and more in accord with
the expectations of the parties than the
internal law of England, the English
judge does not hesitate to give effect to
the foreign rules.
REASONS FOR THE APPLICATION
OF A FOREIGN LAW
 Justice- This is an underlying reason for
applying a foreign law, rather than
English law, to serve the interests of the
parties to the case.
 Comity- refers to one jurisdiction
extending courtesis to other nations by
recognising the validity and effect of
their executive, legislative and judicial
acts with the expectation that this will
be returned. Sottomayor v DeBarros
(1877).
CONT’D
 Public policy-An English court will
refuse to apply a law which outrages its
sense of justice or decency. But, before
it exercises such power, it must consider
the relevant foreign law as a whole. See:
Re Fuld
 It is a general principle of the conflict of
laws that a rule of foreign law, which
would be applicable under the lex
causae (that is, the governing law), may
be disregarded if its application would
be contrary to public policy.
WEEK 2
CONNECTING FACTORS

 The choice of law rules which link an

event, dispute or person to a particular
legal system.
 These are known by their latin terms
and are cardinal in determining the
applicable law in eliminating a conflict.
 The following are examples:
 Lex causae– the law which governs an issue.
 Lex actus– the law governing a transaction, such as the
applicable law of a contract.
 Lex domicilii– the law of a person’s domicile
 Lex fori– the law administered by the court hearing the
case.English law is the lexforifor an English court.
 Lex loci actus– the law of the place where a
transaction is concluded
 lex loci contractus-relates to the conclusion of a
contract
 lex loci celebrationis-the law of place of the
celebration of a marriage.
 Lex loci delicti commissi– the law of the place where
a tort is committed
 Lex loci solutionis– the law of the place of
performance (of a contract)
 Lex situs– the law of the place where property is
situated
HOW CONFLICT OF LAWS
DEALS WITH CASES
 (1) involves the question of
‘characterisation’;
 (2) involves the question of the
interpretation of the connecting factor;
(2) and
 (3) both involve the doctrine of renvoi.
This is
the process by which a court adopts the r
ules of a foreign jurisdiction with respect
to any conflict of laws that arises.
SIGNIFICANCE OF
CONNECTING FACTORS
 They include the personal law (domicile,
habitual residence and, very rarely,
nationality),
 the place where the transaction takes
place (as place of celebration of a
marriage or the place of contracting),
 the place of performance (as in
contracts),
 the intention of the parties, the situs
(the place where property is situated)
and
 the place where the court (forum) is
CLASSIFICATION OR CHARACTERISATION
 In a conflict case, much depends on how
the issue is classified or characterised.
 Is it an issue of breach of contract or the
commission of a tort?
 This may be labelled as ‘classification of
the cause of action.
 Once this has been determined, the next
stage is to ascertain the governing law
which, such as the lexsitus, the lex loci
delicti, the lex domicilii, and so forth.
 These factors link the issue to a legal
system.
CLASSIFICATION AS TO A CAUSE OF
ACTION
 Before the English court can proceed to
ascertain the lex causae, it has to
determine the particular category into
which the action falls.
 Does the action relate to the formal
validity of a marriage, intestate succession
to movables, or some other category?
 Given the standard categories operating in
English law, the difficulty arises when
some cases do not fit easily into any single
one of them. An action may fall under
more than one category.
 CASE LAW-
PHRANTZES V ARGENTI (1960) 2 QB
19
 Deals with the duty of a father to provide a
dowry for his daughter under Greek law
 The court was asked to enforce payment of a
dowry which was owed under Greek law.
Held: English law does not guarantee a
remedy for every foreign cause of action. Lord
Parker CJ said that to be available in support of
a foreign cause of action, the remedies
afforded by English law ‘must harmonise with
the right according to its nature and extent as
fixed by the foreign law.’
CLASSIFICATION AS TO THE RULE OF
LAW
 Once the legal category of a given case
has been identified, the next stage is to
apply the relevant choice of law rules in
order to identify the lexcausae.
 However, even at this stage, it may be
necessary to classify a particular rule in
order to determine whether it falls
within one choice of law rule or another.
CONT’D
Ogden v Ogden(1908).

 A domiciled English woman married, in

England, a domiciled French man aged
19. By French law, a man of that age
needed his parents’ consent to marry
and, without such consent, the marriage
was voidable.
 The Court of Appeal classified its a rule
off or validity and, therefore, declined to
apply the dual-domicile rule, for the
marriage had been celebrated in
CONT’D
Leroux v Brown (1852)

 The case concerned an oral agreement made in

France between a French employee and an English
employer whereby the former was to work in France
for a period longer than a year.
 This oral contract was governed by French law, under
which the contract was formally and essentially valid.
 The employee brought an action in the English court
to enforce the contract. The employer pleaded that
the contract was unenforceable in England on the
ground that the then English Statute of Frauds
provided that no action shall lie upon a contract
which was to last more than a year, unless the
agreement was in writing.
 THE DOCTRINE OF RENVOI

 The process by which a court adopts the r

ules
of a foreign jurisdiction with respect to an
y conflict of laws that arises.
UNDERSTANDING THE
DOCTRINE
 in Re Ross, the testatrix, a British national, died
domiciled in Italy.
 She left movable property in England and movable and
immovable property in Italy.
 Her wills in relation to her English and Italian estates were
valid by English domestic law of succession, but invalid by
Italian domestic law. This was because she had not left
half of the estates to her son, who contested the wills.
 Under English conflict of laws, the essential validity of the
wills was governed by Italian law as the law of the
domicile of the testatrix (in relation to the movables), and
as the lexsitus(in relation to the immovables).
 Under Italian conflict of laws, this issue was governed by
the domestic law of the nationality of the testatrix. As a
result, the English court applied English domestic law and
the wills were held to be valid.
TYPES OF RENVOI
 single or partial renvoi, and
 double or total renvoi.
SINGLE OR PARTIAL RENVOI

 Under this the English court accepts the

reference back from the country
referred to by the English choice of law
rule.
 For instance, if an English court is
referred by its own choice of law rules to
the law of country X, but the choice of
law rules of X refers such case back to
English law, then the English court must
apply its own domestic law to the case.
DOUBLE OR TOTAL RENVOI
 Under this the English court, which is referred by its
conflict rules to the foreign country, must apply the
law which a court in that foreign country would
apply if it were hearing the case.
 This means that the English court not only applies
the foreign country’s choice of law rule, but also its
doctrine of renvoi.
 The operation of this form of renvoi is illustrated in
Re Annesley (1926), where the testatrix, a British
national, died domiciled in France according to
English law, but domiciled in England according to
French law. Her will was valid by English domestic
law, but invalid by French domestic law, for she had
failed to leave two thirds of her property to her
children.
REVISION QUESTIONS
 Conflict of law rules are applied when the
English courts seek to harmonise matters
involving a foreign element.
 What are the preliminary factors that a
municipal court would have to consider when
adjudicating a matter with a foreign element?
Justice, comity and public policy
 What is the justification for a municipal court to
apply foreign laws rather than the lexfori- laws
of the forum? If it does not have jurisdiction over
the matter. If there is a provision that in an
event of a dispute the matter be heard under a
decided law and as a means of proper
recognition and enforcement of a legal decision
TOPIC 2- JURISDICTION OF THE
ENGLISH COURT IN CONFLICT OF LAWS
AS A MATTER OF
PRINCIPLE
 Conflict of law rules concerning the
choice of law permit a plaintiff to sue a
defendant who is within the jurisdiction
or even outside the jurisdiction where
the plaintiff is located.
 This serves an important purpose in
commercial transactions where
aggrieved parties are originally from
different countries due to international
trade.
NECESSARY GROUND FOR
ENGLISH COURT
 where the writ is served on a defendant
physically present in England;
 where the defendant voluntarily submits
to the jurisdiction of the English court;
or
 where the plaintiff obtains leave from
the High Court to serve the writ on the
defendant outside England in
accordance with one or more heads.
 DEFENDANT PRESENT IN THE
JURISDICTION
 Provided that the defendant is not
domiciled within the EC/EFTA, the
English court has power to hear the
case when a writ is legally served
on a defendant physically present
in England.
CONT’D
(a) Individuals

 A writ may be served on any individual who is

present in England, however short his or her visit
may be. For instance, in Maharanee of Baroda
v Wildenstein, the plaintiff, an Indian princess
residing in France, brought an action in England
against the defendant, an art expert also residing
in France. The action was based on breach of a
contract for the sale of a painting in France,
stated to be by the artist Boucher, but which was
allegedly a forgery. The writ was served on the
defendant whilst he was in England on a one day
visit.
CONT’D
 (b) Corporations under three circumstances

 By virtue of ss 691, 695 and 725 of the Companies Act

1985 (UK), a corporation is deemed present in England in
three situations:
i. When it is registered in England, it is deemed to be present
within the jurisdiction of England.
ii. if incorporated outside England, but has a place of business
in England, then by virtue of s 691 of the CA 1985, it must
file the name and address of a person in England who is
authorised to accept service of the writ on its behalf.
iii. ( c ) if no such address is filed, or if the person named dies,
or for any reason the writ cannot be served in accordance
with s 691 above, then by virtue of s 695 of the CA 1985,
service may be effected by sending the writ to ‘any place
of business established by the company in Great Britain’
WHAT THE COURT
CONSIDERS
South India Shipping Corpn Ltd v Export-Import Bank
of Korea
 the plaintiff, a company incorporated in India, brought a
claim against the defendant bank, which was incorporated
in Korea.
 However, the bank rented an office in London for the
purposes of gathering information and maintaining public
relations with other banking and financial institutions in the
UK and Europe.
 The writ was served at the office in London. The defendant
contended that, as they had not established a place of
business in Great Britain, the writ was not duly served.
 The Court of Appeal held that a company was said to have
established a place of business in Great Britain if it carried
on part of its business activities there.
 Accordingly, the defendant was duly served with the writ,
for it had established a place of business there.
CONT’D
( c ) Partnerships

 In the case of partnerships, a writ can be served on any

individual partner who is present in England at the time
of the service.

 Service of the writ may now also be effected on the

partnership firm by virtue of Rules of the Supreme Court
Ord 81 r 1, which provides that:

…any two or more persons claiming to be entitled, or

alleged to be liable, as partners in respect of a cause of
action and carrying on business within the jurisdiction
may sue, or be sued, in the name of the firm (if any) of
which they were partners at the time when the cause of
action accrued.
SUBMISSION TO THE JURISDICTION

 At common law, the English court may have

jurisdiction over the defendant if he or she submits
to the court.

 Submission may be effected in a variety of ways;

-A defendant may enter an appearance to defend
the case on its merits, such as disputing his or her
alleged liability; or he or she may instruct a solicitor
to accept service on his or her behalf.
-Submission may also be effected where, having
commenced an action in the English court as a
plaintiff, he or she is faced with a counter claim
brought by the defendant.
-Submission may also be inferred from the terms of
a contract
DEFENDANT OUTSIDE THE
JURISDICTION
 Where the defendant has no physical
presence in England, or does not submit
to the jurisdiction, or if, prior to the
issue of the writ, he or she goes abroad
and does not return, the English court is
empowered to allow service of the writ
out of the jurisdiction in specific cases.
 This power, which is contained in RSC
Ord 11 r 1(1), is discretionary.
 Service of the writ out of the jurisdiction
under Ord 11 r 1(1) requires the
permission of the High Court.
PREVENTION OF FORUM SHOPPING
AND THE STAYING OF ACTIONS
 It appears from the foregoing discussion that
English common law rules allow anyone to
invoke, or become amenable to, the
jurisdiction, provided that the defendant has
been served with a writ.
 Service may be effected either by the
defendant’s presence, however short, in
England.
 This approach, which has often been described
as exorbitant, empowers English courts to hear
cases which, in some instances, may be
inappropriate for trial in England. It also leads
to the plaintiff forum shopping for the best
remedy available.
FORUM SHOPPING
DEFINED
 Lord Pearson defined forum
shopping in Boys v Chaplin as:
 A plaintiff bypassing his natural forum
and bringing his action in some alien
forum which would give him relief or
benefits which would not be available to
him in the natural forum.
FORUM NON CONVENIENS

 Forum non conveniens is a discretionary

power that allows courts to dismiss a
case where another court, or forum, is
much better suited to hear the case.
 This dismissal does not prevent a
plaintiff from refiling his or her case in
the more appropriate forum.
 See Res Judicata. This doctrine may be
invoked by either the defendant, or by
the court.
CASE LAW
St Pierre v South American Stores Ltd Scott LJ had
stated the test in relation to stays in the following
terms:
 A mere balance of convenience is not a sufficient
ground for depriving a plaintiff of the advantages
of prosecuting his action in an English court if it is
otherwise properly brought.
 In order to justify a stay, two conditions must
be satisfied, one positive and the other
negative:
 the defendant must satisfy the court that the
continuance of the action would work an injustice
and
 the stay must not cause an injustice to the plaintiff.
ESSENTIAL ELEMENT
 A stay would only be granted if the
plaintiff ‘set out deliberately to harass
the defendant’ by litigating in England.
WHAT COURT CONSIDERS
i. The basic principle is that a stay will only be
granted on the ground of forum non conveniens
where the court is satisfied that there is some
other available forum, having competent
jurisdiction, which is the appropriate forum for the
trial of the action, that is, in which the case may be
tried more suitably for the interests of all the
parties and the ends of justice
ii. The court would look for that forum with which the
action had the most real and substantial
connection
iii. the burden of proof rests on the defendant to
persuade the court to exercise its discretion to
grant a stay…if the court is satisfied that there is
another available forum which is prima facie the
appropriate forum for the trial of the action
THE DOCTRINE OF LIS ALIBI PENDENS
 In some instances, proceedings between the
same parties arising out of the same dispute
are simultaneously pending in the English court
and the courts of another country. This is
referred to as a case for lis alibi pendens (A suit
pending elsewhere)
 Under the traditional rules, the English court
may be asked either by the defendant to the
English proceedings to stay the action (a term used
when a case is postponed, usually until a matter pending is
taken care of)in England, or by the plaintiff to the
English proceedings to grant an injunction
restraining the defendant from continuing with
the foreign proceedings.
DECISIVE CASE
 It is evident that where the parties lack territorial connection with the
jurisdiction, then prima facie, England is not the appropriate forum.
 This was seen in De Dampierre v De Dampierre.
 In this case, a husband and wife, both French nationals married in
France, moved to London, where the husband carried on business on the
family estate and bought them a house in London.
 A few years later , the wife established a business in New York, where
she took her child, and declared her unwillingness to return to England.
 The husband started divorce proceedings in France and the wife issued
a divorce petition in the English court.
 Following the husband’s application for a stay of the English
proceedings, the House of Lords applied the Spiliadatest and held
that the wife’s connection with England was tenuous. She was
resident in the USA and had voluntarily severed all connection
with England before instituting her English divorce proceedings.
 She was a French national, and was married in France, where she could
litigate as easily as in England.
 Furthermore, the husband had, by then, sold his property in England and
returned to reside in France. Hence, there were practically no factors
connecting the case with England.
REVISION EXCERCISE
Write short notes on the following:
 The doctrine of forum non conveniens; refers to the discretion o the

court to dismiss a case on the understanding that there there is a

more appropriate jurisdiction to handle the case
 Lis alibi pendens: is a common law doctrine that relates with a case

running simultaneously between the English and foreign courts. The

plaintiff can file for an injunction restraining the defendant from
continuing the proceedings on the premise that the case is already
before court. DR Insurance Co v Central National Insurance Co,
service out of the jurisdiction was set aside because
concurrent proceedings were taking place in New York.
(1996) 1 Lloyd’s Rep 74
 Anti-suit injunctions; This is an order issued by a court or arbitral

tribunal that prevents an opposing party from commencing or

continuing proceedings in another jurisdiction or forum.
 The significance of the decision in Boys v Chaplin: This case

addresses the element of forum shopping. In this case, forum

shopping is said to involve a plaintiff leaving his natural forum and
opting for an alien forum where he or she believes she will get better
benfits out of the hearing
TOPIC 3- THE DOMICILE- LEX
DOMICILII
REVISION QSN 1
 The traditional common law concept of
domicile puts an emphasis on a person’s
permanent home rather than
nationality, as the main factor
connecting an individual or corporation
to a particular legal system.
 How has lex domicilii been applied as a
test to ascertain the validity of a
marriage with a foreign element under
the essential validity doctrine?
QSN 2
 What domicile would the English courts
ascribe to a refugee who has no hope of
returning to his home country, a married
woman, a prisoner held in Guantanamo
bay, a child under the care of its
grandmother and a medical practitioner
from DRC who decides to make Zambia
his permanent home?
QSN 3 .A
The domicile- lexdomicilii is a connecting
factor which links a person with a
particular legal system and connotes
the person’s “permanent home”.
 What are the requirements at common
law for an individual to acquire a
domicile of choice? And how do these
contrast with the facts in the case of
Ramsay v Liverpool Royal Infirmary
(1930) AC 588?
QSN 3 .B
 What factors do the courts consider to
determine the domicile of a corporate
entity?
DOMICILE AT COMMON
LAW
 For the purposes of jurisdiction in civil and
commercial matters, English law applies a concept
of domicile as defined in ss 41–46 of the Civil
Jurisdiction and Judgment Act 1982 (CJJA)
 However, a different concept of domicile is adopted
in England to determine an individual’s personal law.
Personal law may be defined as the law of the
country to which a person primarily belongs,
especially for the purposes of various matters of
family law and succession.
 In other words, the personal law of an individual
determines such matters as:
 (a) the essential validity of a marriage;
 (b) the effect of marriage on the proprietary rights of
husband and wife;
CONTI
 (c) wills of movables and succession to movables;
 (d) jurisdiction in divorce and nullity of marriage, and to a
certain extent, legitimacy of children and adoption; and (e)
certain matters of revenue law.
 For the purposes of the above matters, England regards the
concept of domicile as the decisive factor.
 In contrast, civil law jurisdictions regard nationality as the
decisive factor to determine an individual’s personal law. This
will clearly create problems of renvoi.
 For instance, in Re Ross (1930), Mrs Ross, a British subject
domiciled in Italy, died in 1927 leaving movable property in
England and Italy, and immovable property in Italy. She left two
wills, one in English, leaving her property in England to her
niece, and a second one in Italian, leaving her movable and
immovable property in Italy to her grandnephew and his mother.
Neither will left anything to her only son, who contested the wills
on the ground that, under Italian law, he was entitled to a
proportion of her property.
DOMICILE CONTI
 With regard to her movable property, it was held
that this had to be determined by Italian law as the
law of the domicile of the testatrix. However, looking
at Italian law, namely, Art 8 of the Italian Code,
which provided that succession was regulated by the
national law of the deceased, whatever the nature of
the property, and Art 9, which stated that the
substance and effect of wills were governed by the
national law of the testator, the court was of the
view that an Italian judge would have referred the
subject matter of the dispute to the law of her
nationality, that is, British. Hence, by virtue of this
renvoi, English law was applied and the son’s claim
failed. (England applied its own domestic law)
DOMICILE CONTI
 Similarly, in respect of her immovable property, Italian law
was applied as the lex situs, and by virtue of the same
provisions of the Italian Code, it was equally held that the
issue would have been referred to English internal law.
Again, the son’s claim failed.
 This chapter treats of citizenship of natural person and
domicile. Citizenship and nationality are synonymous and
are interchangeably used. A person may be a citizen of one
country, but he may be domiciled in another state or
country.
 Citizenship means the status of being a citizen of a state
who owes allegiance to the state and is entitled to its
protection and to the enjoyment of civil and political rights
therein. Citizenship is synonymous with nationality. Each
state or country determines who are its citizens or nationals;
it has no authority generally to determine who are citizens
of other countries, except as an incident in a case whose
resolution requires such determination.
THE DOMICILE- LEX
DOMICILII
 Domicile is a connecting factor which links a person
with a particular legal system, and the law of his
domicile is his personal law. That law determines, in
principle, whether a man or woman has legal
capacity to marry, and how the estate of a deceased
person is to be distributed.
 If a married person is domiciled in England, the
English courts have jurisdiction to dissolve or annul
his or her marriage. If a married person is domiciled
in, say, France, then a divorce decree granted by the
French courts to or against that person will be
recognised in England.
 Since it is a connecting factor, a person’s domicile
must be ascertained by applying English law, and
not in accordance with the rules of a foreign legal
system. The general meaning of domicile is
THE DOMICILE- LEX
DOMICILII
 However, domicile is a legal concept and a person’s
‘basic’ domicile is his domicile of origin, which is
ascribed to him by law at his birth, and is not
necessarily the country of his family’s permanent
home at that time.
 His domicile of dependence, whilst he is a minor, is the
same as that of both or one of his parents.
 The ascertainment of a person’s domicile of choice
does depend upon showing that he intended to
establish a permanent home in a particular country.
 There are three kinds of domicile
namely:
 domicile of origin
 domicile of choice and
 domicile of dependence.
DUAL CITIZENSHIP.
 Dual citizenship means the status of a person who is
a citizen of two or more countries at the same time.

 Jus soli: is referred to as birth right citizenship

 Jus sanguinis: on the other hand, means the
principle of determining a person's citizenship
through one or both of their parents' citizenships. It
means the “right of blood” and is also referred to as
the principle of descent.
 Ipso facto: is a Latin phrase that means “by the
fact itself.” Ipso facto can be used the same way
you'd use the phrase “because of that fact…”.
DUAL CITIZENSHIP.
 Dual citizenship arises when, as a result of the
concurrent application of the different laws of two or
more states, a person is simultaneously considered
a national by the said states.
 For instance, such a situation may arise when a
person whose parents are citizens of a state which
adheres to the principle of jus sanguinis is born in
a state which follows the doctrine of jus soli. Such
a person, ipso facto and without any voluntary act
on his part, is concurrently considered a citizen of
both states.
DOMICILE OF ORIGIN

 A person’s domicile of origin depends on the domicile

of one of his parents at the time of his birth, not on
where he was born, nor on his parents’ residence at
that time. In Udny v. Udny41, for example, Colonel
Udny was born and then lived in Tuscany (Italy), where
his father resided as British consul. But his father was
domiciled in Scotland, so the Colonel’s own domicile
of origin was Scotland.
The rules for the ascertainment of the
domicile of origin are:
 (i) a legitimate child takes his father’s domicile
 (ii) an illegitimate child and
 (iii) (possibly) a posthumous child, that is a legitimate
child born after his father’s death, both take his
mother’s domicile.
DOMICILE OF ORIGIN
 (iv) a foundling or one whose parents’ domicile is
unknown is domiciled in the place where he is found
or born.
 (v) the domicile of an adopted child, the domicile of
origin can be changed after the child’s birth.
 By statute, an adopted child becomes henceforth for
all legal purposes the child of his adoptive parents,
so he takes their domicile as his domicile of origin.
 A minor’s domicile may change after his birth, but
any new domicile he acquires is a domicile of
dependence and not of origin (except where he is
adopted); that remains the domicile he acquired at
birth.
DOMICILE OF CHOICE
Differences between domicile of origin and domicile of
choice
Domicile of origin and domicile of choice can be
distinguished in three ways:
 First, the domicile of origin is ascribed to a person by law

and does not depend on his own acts or intentions; WHILE

 A domicile of choice is acquired if a person goes to live in a

country with the intention to remain there permanently.

 Secondly, it is more tenacious than a domicile of choice.

 A domicile of origin can only be lost by intentional

acquisition of another one, but a domicile of choice can be

lost simply by leaving the relevant country intending not to
return.
 If that should happen, then, unless another domicile of
choice is acquired, the domicile of origin revives. This, the
‘revival’ of the domicile of origin, is a third distinguishing
feature.
DOMICILE OF CHOICE
 It was established by Udny v. Udny in 1869. Colonel
Udny was born in Tuscany, Italy where his father,
then domiciled in Scotland, was British consul. Thus
Scotland was his domicile of origin. He later acquired
a domicile of choice in England, but then fled to
France to evade his creditors.
 He thereby abandoned his English domicile, but did
not acquire one in France. The House of Lords held
that when the Colonel left England, his Scottish
domicile of origin automatically revived; he did not
need to go and live in Scotland in order to reacquire
it.
DOMICILE OF CHOICE
 If he does so, it does not matter that he later changes
his mind, so long as he does not actually leave the
country.
 . If, however, he intends to reside in a country for a fixed
time, say five years, or for an indefinite time, but thinks
that he will leave some day, then he does not acquire a
domicile of choice there.
 If the possibility of departing is in his mind, however,
that possibility must depend upon a real contingency
and not a fanciful one (such as if he won the football
pools), nor one which is too vague. For example, in IRC
v. Bullock. In the former case, Group Captain Bullock, a
Canadian, lived in England for forty-four years. He had
married an Englishwoman and in deference to her wishes
set up home in England. He often expressed an intention
to return to Nova Scotia, Canada should she predecease
him. (predecease; is to die before someone else)
DOMICILE OF CHOICE
 The Court of Appeal held that he had not acquired a
domicile in England. Group Captain Bullock’s intention
indeed depended upon a contingency which might not
occur, but it was quite possible that it would, for it was
nearly as likely that his wife would predecease him as that
he would predecease her.
 But in Re Furse an American, who owned a farm in
England where he lived and worked and had his family after
1923, had considered returning to New York from time to
time but after the 1940s had abandoned searches for a
house in the United States. Thereafter he stayed on his
farm and said nothing except that he might go back to the
United States if he ceased to be capable of leading an
active life on the farm. It was held that he had acquired a
domicile of choice in England, since his intention to leave
was vague and indefinite. There was no pressure on him to
stay here, and he was wholly integrated into the community
in which he lived.
REQUIREMENTS FOR
ACQUISITION
 A domicile of choice is acquired by a combination of
two things, the factum of actual presence or
residence in a country, and the animus, that is, the
requisite intention. The two must coincide.
 If a person goes to a country and then leaves it, but
later wishes to return there for good without actually
returning, he will not acquire a domicile in that
country. However, provided the necessary intention
exists, even a stay of a few hours will suffice.
 The requisite intention may be defined as that of
permanent or indefinite residence; the person must
intend, at the relevant time, to stay in a country for
good, or at least for an unlimited period.
PHYSICAL RESIDENCE AND THE
REQUISITE INTENTION MUST COINCIDE
AT THE RELEVANT TIME
 Physical residence and the requisite intention must
coincide at the relevant time. If they do not, it is
immaterial that the intention can be shown to have
been formulated at some subsequent time .
 In the well-known case of Bell v. Kennedy Mr
Bell left Jamaica, his domicile of origin, as he said,
‘for good’, and went to Scotland intending to
reside there. But when he arrived he could not
make his mind up as between Scotland and
England, though he remained in Scotland. His
wife died. It was held that at that time his, and his
wife’s, domicile was still in Jamaica. Shortly
afterwards he bought an estate in Scotland and
settled there, but it was only then that he
acquired a domicile of choice in Scotland.
BURDEN AND STANDARD
OF PROOF
 The burden of proving the acquisition of a domicile of choice rests on
the person who alleges it. It seems that the standard of proof is that
required in ordinary civil cases, that is, proof upon a balance of
probabilities.
 in Ramsay v. Liverpool Royal Infirmary. George Bowie, a
Scotsman born in Glasgow with a Scottish domicile of origin,
stopped working when he was thirty-seven and when he was
forty-six went to Liverpool to live with (or sponge off )
members of his family. He died there aged eighty-seven. He
had only left Liverpool on two short trips, and refused to
return to Glasgow, even for his mother’s funeral. He always
took a Glasgow newspaper, and called himself a ‘Glasgow
man’, stating this in his will. He made a will which was
formally invalid under English law, but valid by Scots law. The
House of Lords held that he died domiciled in Scotland.
Though his residence in England was lengthy, it was
‘colourless’ and motivated only by his attachment to a
member of his family who would keep him despite his
disinclination to work. The burden of proving his acquisition
of a domicile in England had not been discharged. His will was
thereby held to be valid.
DOMICILE AS A SOCIAL
BOND
 Domicile denotes a social, not a political, attachment
to a particular country. This is shown by cases which
concerned persons who became naturalised in a state
or persons who were deported or were subject to
possible deportation.
 If a person becomes naturalised in a country this
may be evidence of his intention to acquire a
domicile there but it may not necessarily be so. He
may want to become a national of one state without
wishing altogether to sever his social ties with the
country of his domicile.
 An alien who is liable to be deported from England,
and whose stay here may, therefore, be cut short,
may nevertheless intend to stay in England and make
it his permanent home so far as he is able to do so.
 . In Boldrini v. Boldrini, for example, an Italian
who was working as a waiter in England was
registered as an alien under the then aliens
legislation and was liable to deportation. He was
nevertheless held to have acquired a domicile here.
 The same was true of an alien in respect of whom a
deportation order had been made. However, an
illegal entrant to England cannot acquire a domicile
there. This is a rule based on English public policy.
MOTIVE AND FREEDOM
OF CHOICE
 Motive must be distinguished from intention. The
fact that a person has what might be regarded as an
unworthy motive in going to a country, for example,
to escape payment of taxes, does not prevent the
court from holding that he has formed the necessary
intention to reside permanently there.
 Generally speaking a person’s intention must be the
result of a free choice; but all that this means is that
the fact that, for instance, his residence is a result of
his fleeing from justice or from oppression or enemy
invasion, may make it perhaps less likely that he has
the requisite intention, but if there is adequate
evidence of such an intention, there is nothing to
stop the court holding that he has acquired a
domicile of choice.
CONTIN
 A person who is sent to a country for employment
there usually does not acquire a domicile there, but
he may do so. A serviceman posted to another
country for service will not usually acquire a
domicile there, but again he may do so. In
Donaldson v. Donaldson a RAF (Royal Air Force)
officer stationed in Florida decided to stay there
after demobilisation, and brought his wife and child
there; it was held that he had acquired a domicile in
Florida. In the converse case of Stone v. Stone, a
United States serviceman was held to have acquired
a domicile in England, where he had been posted.
ABANDONMENT OF DOMICILE
OF CHOICE (OR DEPENDENCE)
 In order to abandon a domicile of choice, the requisite
intention to do so must be carried into effect and the
person must actually leave the country of his domicile of
choice. If he does not, that domicile continues to adhere
whatever his wishes. In in b. Raffenel, a widow who had a
domicile of dependence with her husband in France went
on board a cross channel ferry at Calais intending to sail to
England, her domicile of origin, and stay here. Before the
ship left France, she fell ill and had to return to land where
she died. She died domiciled in France.
 Provided, however, he has actually physically left, the
person need not have formed a positive determination
never to return; he has lost the domicile of choice merely
by having no intention to go back to the country. If no other
domicile of choice is acquired, the domicile of origin
revives. Thus, had Mrs Raffenel’s boat crossed the
boundary of French territorial waters, she would have died
domiciled in England.
EXCEPTIONS TO ACQUISITION
OF DOMICILE OF CHOICE
Refugees:
 If in times of war the refugee has not abandoned the
possibility of returning home, then no new domicile
will be acquired. Re Lloyd Evans (1947). But in
cases where it is clearly impossible to return home
and the refugee intends to stay in the new country
then a new domicile is acquired. May v May
(1943), where a Jewish refugee from Nazi Germany
fled to the United States with no intention of
returning.
Fugitives:
 A fugitive from justice may acquire a domicile of
choice if it is clear that he intends to establish links
with his/her new country. In the case of Re Martin
(1900)
EXCEPTIONS TO ACQUISITION
OF DOMICILE OF CHOICE
 Lindley LJ suggested that the all important factor is whether
there is a definite period after which a wrongdoer may
return home in safety. If the crime ceases to be punishable
or the sentence enforceable after a given number of years,
residence in another country, unless fortified by other facts,
does not affect a change of domicile, but if the fugitive
remains perpetually liable to proceedings then the new
place of residence becomes the new domicile.
Invalids:
 Where a person with poor health seeks of his own free will
to live abroad for the good of his health then he acquires a
new domicile but not if the medical attention required is
short term. Moorhouse v Lord (1863) and Hoskins v
Matthews (1856) where a 60 year old English domiciled
person had an injury in his spine and he went to Florence
(Italy) solely because he thought the warmer climate of Italy
might benefit his health.
CONTIN
 The Court held that he was domiciled in Florence as “in
settling there he was exercising his preference and not
acting upon necessity”.
Prisoners:
 The prisoner will continue to retain the domicile that
he/she possessed before his/her imprisonment. Case of
The Late Emperor Napoleon Bonaparte (1853)

 Public Servants:
 The 19th century view was that service personnel or
diplomats would not normally acquire a new domicile
because their residence abroad was linked to national
duties. But in recent times, it is a question of nature and
decree that a soldier may acquire domicile abroad as
well as intent.
CONTI
 In the case of Stone v Stone (1959) a member of
the US Armed Forces was stationed in Europe. He
used to spend all his holidays in England and wanted
to settle there on retirement from his post. The court
held that he acquired a domicile of choice of
England.
DOMICILE OF
DEPENDENCE
Married women
 Until 1 January 1974, as a matter of law, a married woman
automatically possessed the domicile of her husband even if
he and she lived apart and even though they were judicially
separated. Only if their marriage was void or after it had
been annulled or dissolved or after her husband’s death
could she have her own domicile, separate from his.
 However, by the Domicile and Matrimonial Proceedings Act
1973, from and after 1 January 1974, the domicile of a
married woman is ascertained in the same way as is that of
an adult male. This rule applies to women who were married
either before or after that date. If, immediately before then, a
woman was married and had her husband’s domicile by
dependence, she is to be regarded as retaining that domicile
as her domicile of choice, unless and until she acquires
another domicile of choice or her domicile of origin revives
on or after 1 January 1974.
DOMICILE OF
DEPENDENCE
 It has been held that her previous domicile of
dependence must continue as a ‘deemed’ domicile of
choice until she actually departs from, say, England
for another country.

Minors
 A minor is a person who is aged under eighteen. The
domicile of dependence of a legitimate minor is, that
of his father, and changes automatically if his father
changes his own domicile. That will also remain his
domicile after his father’s death until the minor
becomes eighteen. It may, however, after his father’s
death follow that of his mother. But if his mother
changes her domicile, the minor’s domicile does not
necessarily alter.
DOMICILE OF
DEPENDENCE
 The mother has a power to change the minor’s domicile
along with her own, but she must positively change it and
must not abstain from doing so. If she does exercise this
power she must not it seems, do so fraudulently, that is,
for a purpose other than for the benefit or welfare of the
minor. Thus in the case of Re Beaumont; Mr and Mrs B
were domiciled in Scotland. They had several children all
of whom had a Scottish domicile of origin and of
dependence. The father died and Mrs B then married N.
They went to live in England where they acquired a
domicile. They took all the children to live with them with
the exception of Catherine, who was left in Scotland with
her aunt, with whom she had lived since her father’s
death. Catherine attained her majority and shortly
thereafter died in Scotland. The Court of Appeal held that
Catherine died domiciled in Scotland, since her mother
had not exercised her power to alter her domicile.
DOMICILE OF
DEPENDENCE
 The domicile of origin of an illegitimate child is, as we have
seen, that of his mother when he is born.
 If, as is thought, a legitimated child acquires a domicile of
dependence upon his father when he is legitimated, his
domicile will thereafter be ascertained as if he were
legitimate. The same must be true of a child who is
adopted by a man and wife, since he takes the adoptive
parents’ (presumably the father’s) domicile as his domicile
of origin.

Mental patients
 It appears that the domicile of a mentally
disordered person cannot be changed by his own
act since he is unable to form the requisite
intention, and thus he retains the domicile he had
when he became insane.
DOMICILE OF
DEPENDENCE
 There is authority for the proposition that if a person
becomes insane during his minority his domicile of
dependence can be changed by an alteration of the
domicile of the parent upon whom he is dependent,
even if this takes place after he attains majority, but
that if he becomes insane after he attains majority,
his domicile cannot be changed for him.
DOMICILE OF CORPORATE
ENTITIES
Companies; Status and domicile
 The personal law of a company is that of its domicile,
which means the law of the place of its incorporation.
 To this it owes its existence, and that law governs also its
dissolution and its capacity to contract. The law of the
place of incorporation dictates who can sue (or cause it to
sue) and be sued on its behalf, and governs the extent to
which a member can be personally liable for its debts. It
also governs its status after an amalgamation.
 In National Bank of Greece and Athens SA v. Metliss
Sterling mortgage bonds governed by English law were
issued by a Greek bank in 1927 and guaranteed by the
National Bank of Greece, a Greek bank. In 1941 payment
of interest on the bonds ceased. In 1949 the Greek
Government passed a moratorium extinguishing liability
on the bonds.
DOMICILE OF CORPORATE
ENTITIES
 In 1953 another Greek decree amalgamated the
National Bank with the Bank of Athens into a new
bank, the National Bank of Greece and Athens,
which the decree declared to be the ‘universal
successor’ of the two banks. In 1955 a bondholder
claimed arrears of interest from the new bank.
 An amalgamation is the combination of two or more
companies into an entirely new entity.
Amalgamations are distinct from acquisitions in that
none of the companies involved in the transaction
survive as a legal entity.
 The House of Lords held that he could do so,
since the status of the new bank and the
effects thereof were governed by Greek law.
The moratorium law was said not to have affected
the old bank’s liability since that was a matter for
RESIDENCE
 The residence of a company, which is chiefly important
for tax purposes, is determined not by the place of its
incorporation, but by where its ‘central management
and control’ is exercised. Thus in De Beers
Consolidated Mines v. Howe A diamond company
was incorporated in South Africa and had a head office
there. A board of directors there handled day-to-day
administrative matters. Another board in London, which
joined with that in South Africa in making major policy
decisions, in fact controlled them because most of the
directors lived in London. Meetings of members and
mining operations and sales of diamonds took place in
South Africa. The House of Lords held that the
company should be assessed for tax as resident in the
United Kingdom, since the central management and
control was actually exercised there, where it ‘kept
house and did business’.
RESIDENCE
 In Egyptian Delta Land & Investment Co. v. Todd,
where the company simply maintained in England
an office, a register of members and a local
secretary to comply with minimum legal
requirements, but its active secretary, directors,
seals, books and bank account were all in Cairo, it
was held to be resident in Egypt. It is, for this
purpose, irrelevant where the central management
and control should be exercised under the
company’s constitution, if it is, in fact, exercised
elsewhere, as in the case of foreign subsidiaries who
were held to be resident in England since they were
wholly controlled by their English holding company.
SUMMARY
 Domicile of origin: The domicile of origin is the domicile
a person acquires at birth, and remains with that
person thereafter until it is replaced by a domicile of
dependency or domicile of choice (see Bell v Kennedy
(1868)). The domicile of origin revives in the absence
of any other domicile on the relevant day.
 Domicile of dependency: It is a well settled rule that no
dependent person can acquire a domicile of choice.
The domicile of such persons depends on, and changes
with, the domicile of the person on whom they are
legally dependent. Two classes of persons must be
examined, namely, children under the age of 16 and
married women. As for mentally disordered persons, it
suffices to note that, in general, the domicile of such a
person depends on the person to whose care a
mentally disordered person has been entrusted.
SUMMARY
 Children under 16: A child under the age of 16 will be
subject to a domicile of dependency if one or both of
his parents abandon their domicile of origin to
acquire a domicile of choice in a new land.
 Married women: Prior to 1 January 1974, the domicile
of a married woman was the same as, and changed
with, the domicile of her husband. In other words, a
married woman’s domicile was dependent on that of
her husband and, if the husband died or divorced
her, then her domicile of dependency continued as
her domicile of choice unless and until she acquired
a new domicile. This rule was greatly criticised as
being ‘barbarous’ and, consequently, was abolished
by s 1 of the DMPA 1973, which provides that:
SUMMARY
 Domicile of choice: Every independent person is capable of
acquiring a domicile of choice by residing in a country other
than the country of origin, with the intention of remaining
there permanently. Both the elements of residence and
intention must be satisfied before English law can recognise
a change of domicile.
 Proof of domicile of choice It is a well established rule that
the onus of proving a change of domicile lies on the party
alleging it.
 Residence; also referred to as factum, in the new homeland
is a question of fact. It was defined in IRC v Duchess of
Portland (1982) as ‘physical presence in that country as an
inhabitant of it’. So, residence is more than mere physical
presence and, therefore, does not cover the situation where,
for example, presence in a particular country is for the
purpose of holidaymaking. The length of residence in itself
is not crucial, provided that the necessary intention exists.
For instance, in Re Flynn (1968),.
SUMMARY
 Intention; The second element which must be
satisfied is that the propositus must have the
intention, also referred to as animus, to reside in the
new homeland permanently or indefinitely.
According to Udny v Udny (1869), residence for a
limited period of time or for a particular purpose
does not satisfy the necessary intention to acquire a
domicile of choice.
CHOICE OF LAW IN CONTRACT-
LEX LOCI CONTRACTUS
TOPIC 5- CHOICE OF LAW IN TORT- LEX
LOCI DELICTI COMMISSI
TOPIC 6- MARRIAGE- LEX
LOCI CELEBRATIONIS
TOPIC 7- LAW OF
PROPERTY- LEX SITUS
LEX SITUS- LAW OF THE
PROPERTY
 Conflict of law rules distinguish between
movable and immovable property see:
Re Berchtold case
 >movable property is in two categories
 tangible movable property whose
governing law would depend on the
domicile of the owner as per maxim;
mobilia sequuntur personam
 intangible movable property whose
governing law depends on the place of
the transfer, the lex loci actus
TOPIC 8- RECOGNITION AND
ENFORCEMENT OF FOREIGN
JUDGMENTS
 Recognition and enforcement of foreign
judgments is now based on a doctrine of
obligation rather than on grounds of
comity. See case of; Schibsby v
Westenholz
 >the English court has jurisdiction
based on 5 grounds laid down in the
case of; Emanuel v Symon
 >the common law rules concerning the
judgment itself provide that it must be
for a fixed sum, for a final judgment, etc
ENFORCEMENT OF
JUDGMENTS AND DEFENCES