The English International Private Law Governing the Traditional, Personal Law, Concept of Domicile - Term Paper Example

The English international private law governing the traditional, personal law, concept of domicile. Introduction: “There are formidable problems surfacing in what is uncharted territory – issues of loyalty, accountability, ideology, and national interest. By definition, a private military company is in Iraq or Bosnia not to pursue US, UN or EU policy but to make money…” Ian Traynor, December 10, 2003 This statement basically describes the current English international private law governing the traditional, personal law, and concept of domicile. The growth of easy and fast means of international communication, transaction and transfers of funds, information, among others has provided the basis for humongous changes in the ways individuals deal with laws, local and international. And the United Kingdom citizens are not spared from this fact. In this essay, it is necessary to establish that law in this context is global in nature of which territories or jurisdictions are involved, thereby not limited within the United Kingdom. Although UK private law secures individuals and families, international private law involves any individual citizen of any state or country and other country laws and jurisdiction as well as the individual’s country of citizenship or origin. Discussion: The United Kingdom Parliament (2004) acknowledges that “Sometimes new laws are needed to ensure that the UK complies with International or European Law. The Human Rights Act 1998 and the Freedom of Information Act 2000 are recent examples of this.” Edwards (2006) pointed out that while “statements cross national boundaries, inevitably problems of international private law are invoked, with difficult questions raised such as what country (or countries) will have jurisdiction to hear any action for damages raised, what countrys law should govern the action (the choice of law question) and if a decree is obtained, how can it be enforced if the defender lives out with the jurisdiction of the court?” In this case, it has been proposed that “action must be raised in the courts of the domicile of the defender (but) it should also be noted that forum non conveniens is still a possible plea in actions involving intra-UK jurisdiction only, although not actions between parties from different states party to the Brussels Convention” (Edwards, 2006) The concept of domicile have always been associated with UK tax, and with the integration of European Union as well as the increasing diversity of United Kingdom population, domicile is becoming more interesting to many individuals (Waldon, 2006). Nevertheless, it is not limited to tax but also marriage and legitimacy while every individual have one single domicile at one time. The various categories of domicile include origin, dependency, choice, and deemed domicile. The domicile of origin is hereditary such as the case of a legitimate child. In the United Kingdom, domicile of origin is based on the domicile status of the child’s father during its birth, but in some instances, it is based on the domicile status of the mother. The domicile of origin is most often described as “adhesive” of which a status prevails until an alternative domicile has been acquired. It has two alternative categories: the domicile of dependency and domicile of choice. The domicile of dependency primarily related to children under the age of sixteen based upon the domicile status of the father at the date of birth. In cases where the domicile status of the father changes while the child is still dependent or under the age 16, the child’s domicile status follows that of the father’s. Upon reaching the age of 16, the domicile of dependency will be replaced by a domicile of choice in the same jurisdiction. This also applies to women married before January 1 1974 as these women acquired a domicile of dependency based upon the status of their husbands. Domicile of choice alters the domicile of origin in an alternative jurisdiction. This may happen when an individual is able to illustrate actual physical residence in the new jurisdiction with the intention to remain there indefinitely as resident. This may be altered once again if the individual attains a new jurisdiction, and if not, the domicile of origin is revived. The subjectivity of domicile of choice has been an issue of discussion among tax authorities. Non-domiciled persons residing in the United Kingdom for any part of seventeen years in a twenty-year period are deemed to be UK domiciled for inheritance tax purposes only with their entire worldwide estate liable to UK inheritance tax. But integration of international laws as posed by the European Union, United Nations, among other international governing bodies such as that of The Hague Conference of Private and International Law (HccH, 2006), calls for various treatises that are or must be implemented as part of memberships in these international governing bodies. Thus, this scenario necessitates member countries, in this instance, the United Kingdom, to update and legislate national laws and policies. One example is “the Hague Securities Convention” that called for the development of the new legal infrastructure needed to match modern systems for the holding, transfer and pledge of securities. Securities in this context mean “financial instrument which is a tradable document that shows evidence of debt of ownership such as stock certificate or bond” as well as an “asset deposited to guarantee repayment,” (Encarta Dictionary, 2006). It emphasised the volume of more than 2 million US dollars a day in OECD countries alone needing legal regime which traditional law cannot effectively protect thereby resulting to legal uncertainty, increased risk and higher costs for global clearing and settlement. The economic and financial repercussions of outdated UK international private and traditional laws pale in comparison to other aggravating global law issues as Traynor (2003) pointed out: privatisation of war. His article pointed out the involvement of private corporations, majority of which are British in origin, serving as contractors: “(…) this is a field in which British companies dominate, with nearly half of the dozen or so private firms in Iraq coming from the UK. The big British player in Iraq is Global Risk International, based in Hampton, Middlesex. It is supplying hired Gurkhas, Fijian paramilitaries and, it is believed, ex-SAS veterans, to guard the Baghdad headquarters of Paul Bremer, the US overlord, according to analysts.” All these issues mentioned if taken in legal consideration are subject to international private law where it may exist, or applicable. The Hague Conference, an inter-governmental organisation with 65 member states from all continents based in the Netherlands working for the harmonisation of rules of private international law, proposed that its purpose is to build bridges between various legal systems while respecting diversity reinforcing the legal security of private persons in the age of globalisation (HccH, 2006). By 1945, conventions have adopted settlement of the conflict of the laws concerning marriage, laws and jurisdictions regarding divorce and separation, guardianship of minors, civil procedure, effects of marriage on the rights and duties of the spouses in their personal relationship with regard to their estates, and deprivation of civil rights and similar measures of protection. The Statute of the Hague Conference on Private International Law have also been convened, and from thereon, other international private laws were adopted on civil procedure, law applicable to international sales of goods, law governing transfer of title in international sales of goods, jurisdiction of the selected forum in the case of international sales of goods, settlement of the conflicts between the law of nationality and the law of domicile, recognition of the legal personality of foreign companies, association and institutions, law applicable to maintenance obligations towards children, and an endless lists that pertain to individuals in international setting (HccH, 2006). Conclusion: Applicable international laws have always been a matter of conflict among countries given the various backgrounds of territorial origins. Although this issue was addressed since the late 1890s (HccH, 2006), conflicts of interest have arisen too many times escalating to jurisdictional disputes. As the fittest of countries join forces, one of which is the United Kingdom (as EU and G8 member), most private international laws are enforced through bodies created by this forces, specifically the World Trade Organisation, International Monetary Fund, among others. Generally, the British individuals have not much to complain with regards to their protection towards international private laws. In fact, in the face of global terrorism, further steps were undertaken to provide British citizens abroad a security comparable to diplomat security. But in consideration of commerce, trade and economy, of which “war economies” may be included, there is a need to be realistic and swift when adopting legislations. But this, once again have to be in compliance with fellow forceful countries in their membership organisations’ biddings. Reference: Cumming v Scottish Daily Record and Sunday Mail and others {1995} EMLR 538. Edwards, Lilian. “"Law and the Internet - Regulating Cyberspace" Defamation and the Internet: Name Calling in Cyberspace.” IT and the Law. 2006. From http://www.law.ed.ac.uk/it&law/c10_main.htm Encarta Dictionary. “Securities.” Microsoft Corporation. 2006. Hague Conference on private International Law. “Switzerland and the United States sign Hague Securities Convention.” HccH.. May 7, 2006. From http://www.hcch.net/index_en.php?act=events.details&year=2006&varevent=117 United Kingdom Parliament, The. “Making New Law.” Parliamentary Copyright. 28 September, 2004. From http://www.parliament.uk/works/newlaw.cfm Traynor, Ian. “The privatization of war.” December 10, 2003. Guardian Unlimited. Waldon, Wendy. “The Concept of Domicile.” BDO Stoy Hayward LLP. 22 August 2005. From http://www.voisinlaw.com/pg582.htm Read More