Conflict of Laws
Conflicts of law deal with legal issues that arise when more than two States’ legal systems /or jurisdictions are involved in a transaction or event. The rules decide which country’s law applies.
The rules also decide which country’s courts have the sole or primary right to hear disputes. They also deal with the enforcement of judgments given in one sState in another.
Conflict of laws deals with legal systems. Most legal systems correspond with a particular country or state. However, in a number of cases, the legal system is not that of the country or State but a part of the State.
Federal and State
In many countries, there are distinct state and federal legal systems. The best-known example is the United States.
Each US State has its own legal system and laws. Many US laws are very similar and based on uniform laws, which are adopted by each State legislature/ parliament. Each state has its own parliament and Court.
In addition, the federal US government has competence in certain important fields. There are distinct federal Courts in the United States dealing with federal matters and disputes between residents of different States.
The United Kingdom does not have a single legal system. England and Wales, Scotland and Northern Ireland are separate and distinct legal systems. Each has a wholly separate system of laws, although, in practice, there are significant similarities between them. Each has its own distinct set of Courts, although the highest Court of each is the UK Supreme Court (formerly the House of Lords).
Jurisdiction refers to the power of Courts to hear disputes. Sometimes it is the case that several different countries can hear the dispute in a particular matter, and the actual country which determines it may be decided by who initiates proceedings first and whether the matter is objected to.
There is considerable freedom for parties to decide which country’s laws and which country’s Courts may hear disputes. This freedom is wider in commercial transactions than in consumer transactions. Consumer protection rules make it obligatory that consumers be sued in their own jurisdiction in many cases.
Sometimes one country’s courts apply another country’s law. In this case, the judge hears evidence of the foreign law from an expert and applies it to the facts.
Domicile is an important concept in conflict of laws. Domicile has different meanings in different contexts.
The traditional meaning which holds in property law, wills and issues regarding long-term personal status is that domicile is a person\’s long-term home. It is where he or she intends to live and, ultimately, to die. In the context of European Union rules, domicile has a different meaning which does not imply the same notion of one’s permanent home. It is closer to habitual residence.
At common law, domicile means the permanent home or centre of gravity of one\’s affairs and interests. A person can only have one domicile. Domicile of origin is where the person is born.
In order to show a change of domicile, there must be the intention to take up a permanent home in another country. Children obtain the domicile of the parents on whom they are dependent.
Change of Domicile
Generally, a person can have only one domicile. It is presumed that a person’s domicile continues. Therefore it is difficult to show loss of domicile. A person who wishes to prove a change of domicile must prove it.
The decision to change must be free and not result from imprisonment or significant pressure. In order to show a change in domicile, it is necessary to show a cessation of residence and intention. Important questions include; Does the person intend to return to their former country? Does he intend to permanently remain in the new country?
Formerly, if a child was living with his or her parents who are living together, the child took the domicile of the father. If this is not the case, the father dies or is separated, and the child normally takes the domicile of the mother. If the parents are alive but living apart, the domicile of the person with whom the child lives determine the position.
Formerly, a married woman took the domicile of her husband. This was found to be against the Constitution and was abolished by law separately in the mid-1980s.
Change Domicile Factors
In order to obtain a different domicile, a person must go to another country with the intention of residing therein indefinitely. Physical presence or residence and intention is required. The intention must be to remain there permanently. Therefore an intention to stay for a particular job or period would be inconsistent with this.
The question may be decided by reference to how the person behaves. For example, the purchase of a grave, or property, and making long-term commitments to the country. If a person’s intentions contradicted immigration law, this would tend to negate domicile.
The fact that a person has lived in a place and made it his permanent home does not necessarily mean that he is domiciled there. Naturalisation or citizenship is a factor but is not completely decisive.
The purchase of property is a factor though this is less so than before. Formerly buying as opposed to renting might be seen to be indicative of the necessary intention. The degree of integration into the community, exercising voting rights, newspapers, learning the language of the country and integrating are relevant factors.
Nationality refers to the country. Nationality usually goes with citizenship.
Nationality does not play a significant role in Irish or English law. It does have a greater role in continental Europe as a connecting factor.
EU Rules of Jurisdiction
There are distinct sets of rules in governing jurisdiction (the court’s powers).
Within the European Union, the matter is regulated by EU law. European Union law is based on a European-wide regulation. This has the direct force of law in all European Union countries and EEA countries. Questions on the interpretation of the EU Regulations may be referred to the Court of Justice of the European Union. This allows for a common European Union-wide interpretation and meaning.
European legislation applies to civil and commercial matters. It does not apply to revenue, customs or governmental and administration matters. It will therefore apply to the vast majority of private commercial disputes within the European Union.
Certain types of matters are not governed by EU legislation. This includes the legal status of persons and companies, matrimonial relationships, wills and succession. The Regulation does not apply to bankruptcy, winding up or other arrangements. There is a separate European Union legislation on cross-border recognition of insolvency. See our section on insolvency.
EU Domicile Concept
The general rule in European Union matters is that the defendant, i.e., the person being sued, should normally be sued in the Courts of his domicile. Domicile, in this context, has a special meaning different to the common law rules of domicile used in Ireland in other contexts such as revenue law, taxation, succession, matrimonial and other such areas relating to long-term status.
European Union law applies its own rules in determining whether a person is domiciled. A person is domiciled in Ireland if he is a resident and the circumstances indicate that his residence has a substantial connection. It is possible for a person who is physically living in the EU not to be domiciled in any state for the purpose of the legislation.
If a person is resident in Ireland and the nature and circumstances of his residence indicate that he has a substantial connection with Ireland, then he will be presumed to have such connection, if he has been resident for at least three months or more.
The nature and circumstances must indicate a substantial connection. A substantial connection is presumed until the contrary is shown if a person has been resident for at least three months. A person will be presumed domiciled if Ireland is his settled or usual place of abode. In deciding whether a person is domiciled in another European Union state, the Court must apply the law of the other state.
A company is domiciled in the place where it has its statutory seat, its central administration or its principal place of business.
An individual may be domiciled in more than one EU state. A company may be domiciled in more than one state by having its central administration in one place and its central business in another place.
In modern EU-derived legislation, habitual residence is a connecting factor. It is beginning to substitute domicile in some contexts, such as wills, matrimonial matters and family contexts.
Habitual residence is a question of fact, depending on the circumstances. The person alleging a change must prove it. It is possible to have more than one habitual residence.
In the case of adults, habitual residence requires physical residence and an intention or a settled purpose to remain there. Where there is residence for more than a year this would be enough for habitual residence. Less than a year is more problematic.
The settled intention must be part of the person’s settled order of life for the time being. The person need not necessarily have put down roots but there must be a settled purpose. It may be enough that the intention is there to remain for a limited period of time (in contrast with common law domicile).
A person can become a habitual resident by going to a country to take up employment for a period. Residence must be voluntarily adapted. The habitual residence of children does not follow that of parents and their carers in the same way that domicile does. A newborn child would take the habitual residence of the parent with parental responsibility.
EU Non-Domicile Jurisdiction
Although the presumption is that a person must be sued in his own state, the EU legislation allows a person to be sued in another state under the circumstances set out. For example, if a person domiciled in Ireland commits a wrong in Germany, the person wronged may sue in Germany or Ireland.
Businesses may agree to confer jurisdictions on another state’s courts.
The European Union rules determine jurisdiction in cases within their scope. If there is no basis for jurisdiction under the regulation, the Court must decline to make an order.
The EU regulation attempts to reduce cases where there may be a possibility of conflicting judgments or orders. Where there are parallel proceedings about the same matter legitimately bought before the courts in one state, and second proceedings are commenced in another state, the court in the second commenced proceedings must stay proceedings in favour of the first court in which was commenced. This applies where two or more states may legitimately assume jurisdiction in relation to the same matter.
Outside EU Scope
Outside of cases where the European Union regulation applies, it is possible to sue a person when he is physically situated in the State. An alternative is that the Court may give permission to issue the proceedings and serve them outside the State.
This latter power may be exercised where the defendant is resident, but the events and subject matter is connected with Ireland. Under the non-EU rules, the Court has a good deal of discretion.
Even where a person is physically sued because he happens to be in Ireland at the time, the Court may refuse jurisdiction on convenience or discretionary grounds. In contrast, the European Union rules are mandatory.