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285. Hague Conference on Private International Law = 海牙國際私法會議
The Hague Conference on Private International Law (or HCCH, for Hague Conference/Conférence de La Haye) is the preeminent organisation in the area of private international law.
HCCH was formed in 1893 to "work for the progressive unification of the rules of private international law". It has pursued this goal by creating and assisting in the implementation of multilateral conventions promoting the harmonisation of conflict of laws principles in diverse subject matters within private international law. Seventy-one nations are currently members of the Hague Conference, including the United States, Brazil, Russia, India, China and all 27 member states of the European Union (the European Union itself is also a member of the Conference, so the total number of members is listed as 72 on the HCCH's website).
The 20th Diplomatic Session of the Conference, held from 14 to 28 June 2005, saw two major developments:
The statute of the Conference was amended (for the first time in over 50 years) to expand the possibility of membership to Regional Economic Integration Organisations such as the European Union. The Conference concluded and opened for ratification the Hague Convention on Choice of Court Agreements, a project which had been in negotiation for nearly 15 years. States applying this instrument agree to recognize and enforce decisions reached by courts of another signatory state if the dispute was governed by a valid choice of court agreement concluded between the parties to the dispute.
286. domicile = 住所
In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave permanently (i.e., if that person has moved to a different state, but has not yet formed an intention to remain there indefinitely). A corporation's place of domicile is equivalent to its place of incorporation.
Traditionally many common law jurisdictions considered a person's domicile to be a determinative factor in the conflict of laws and would, for example, only recognize a divorce conducted in another jurisdiction if at least one of the parties were domiciled there at the time it was conducted.
Outline of the concept
In early societies, there was little mobility but, as travel from one state to another developed, problems emerged: what should happen if different forms of marriage exist, if children become adult at different ages, etc.? One answer is that people must be given a connection to a legal jurisdiction, like a passport, that they carry with them wherever they go. Hence, if according to the laws of their domicile a person has the right to marry multiple spouses, the marriages should not alternate between valid and invalid every time they cross a state boundary where the laws are different. If someone is an infant and therefore has reduced contractual capacity, that will tend to apply wherever they go. Furthermore, when a person dies, it is the law of their domicile that determines how their will is interpreted, or if the person has no valid will, how their property will pass by intestate succession.
Domicile should be distinguished from nationality which is the relationship between an individual and a country. Where the state and the country are co-extensive, the two may be the same. However, where the country is federated into separate legal systems, nationality and domicile will be different. For example, one might have American nationality and a domicile in Texas, or British nationality and a domicile in Scotland. Further, one can have dual nationality but not more than one domicile at a time. A person may have a domicile in one state while maintaining nationality in another country. Unlike nationality, no person can be without a domicile even if stateless.
Domicile is distinct from habitual residence where there is much less focus on future intent. Domicile is being supplanted by habitual residence in international conventions dealing with conflict and other private law matters.
"Domicile" has a somewhat technical legal meaning in common law jurisdictions and should not be confused with: (1) "Domicile" in civil law jurisdictions. (2) "Domicile" in EU regulations and international treaties (where a definition often overrides the common law sense of domicile). (3) "Domicile" in ordinary English usage.
The rules determining domicile in common law jurisdictions are based on case law in origin. Most jurisdictions have altered some aspects of the common law rules by statute, the details of which vary from one jurisdiction to another. The general framework of the common law rules has however survived in most jurisdictions and is in outline as follows:
Domicile of origin
Dicey states the common law rule thus:
Every person receives at birth a domicile of origin:
(a) A legitimate child born during the lifetime of his father has his domicile of origin in the jurisdiction in which his father was domiciled at the time of his birth;
(b) A legitimate child not born during the lifetime of his father, or an illegitimate child, has his domicile of origin in the jurisdiction in which his mother was domiciled at the time of his birth;
(c) A foundling has his domicile of origin in the jurisdiction in which he was found.
(2) A domicile of origin may be changed as a result of adoption, but not otherwise.
In some jurisdictions the status of illegitimacy has been abolished, and slightly different rules apply where parents have differing domiciles.
Domicile of choice
Dicey states the common law rule thus:
Every independent person can acquire a domicile of choice by the jurisdiction of residence and intention of permanent or indefinite residence, but not otherwise.
A person abandons a domicile of choice in a jurisdiction by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely (not based on the immigration status, but based on the social & moral status ), and not otherwise.
When a domicile of choice is abandoned, either
(i) a new domicile of choice is acquired; or
(ii) the domicile of origin revives.
The rule that the domicile of origin revives on abandonment of a domicile of choice has been altered in some jurisdictions.
Domicile of dependency
Dicey states the common law rule thus:
The domicile of a dependent person is, in general, the same as, and changes (if at all) with, the domicile of the person on whom he is, as regards his domicile, legally dependent. In particular, during minority, a child's domicile of dependency changes to match that of the adult on whom the child is said to be dependent.
287. doctrine of forum non-convenience = 不便利法庭原則
Forum non conveniens (Latin for "forum not agreeing") (FNC) is a (mostly) common law legal doctrine whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties. As a doctrine of the conflict of laws, forum non conveniens applies between courts in different countries and between courts in different jurisdictions in the same country.
A concern often raised in applications of the doctrine is forum shopping, or picking a court merely to gain an advantage in the proceeding. This concern is balanced against the public policy of deferring to a plaintiff's choice of venue in claims where there may be more than one appropriate jurisdiction. The underlying principles, such as basing respect given to foreign courts on reciprocal respect or comity, also apply in civil law systems in the form of the legal doctrine of lis alibi pendens.
Forum non conveniens is not exclusive to common law nations: the maritime courts of the Republic of Panama, although not a common law jurisdiction, also have such power under more restrained conditions.
Explanation
A country, state, or other jurisdiction enacts laws which are interpreted and applied through a system of courts. The laws applied by a particular system of courts or legal system are termed the lex fori, or law of the forum. As a matter of civil procedure, courts must decide whether and in what circumstances they will accept jurisdiction over parties and subject matter when a lawsuit begins. This decision will be routine, or not raised at all, if the relevant elements of the case are within the territorial jurisdiction of the court. If one or more of the parties resides outside the territorial jurisdiction or there are other factors which might make another forum more appropriate, the question of jurisdiction must be settled.
Historical origin
Scholars and jurists seem to find a Scottish origin prior to the first American use of the concept. Some writers see the doctrine of FNC as having developed from an earlier doctrine of forum non competens ("non-competent forum"). Many early cases in the U.S. and Scotland involving FNC were cases under admiralty law. FNC thus may ultimately have a civil law origin, as has been asserted by several writers, since admiralty law is based in civil law concepts.
The doctrine of FNC originated in the United States in Willendson v Forsoket 29 Fed Cas 1283 (DC Pa 1801) (No 17,682) where a federal district court in Pennsylvania declined to exercise jurisdiction over a Danish sea captain who was being sued for back wages by a Danish seaman, stating that "[i]f any differences should hereafter arise, it must be settled by a Danish tribunal." In Scotland, the concept is first recorded in MacMaster v MacMaster (Judgment of 7 June 1833, Sess, Scot 11 Sess Cas, First Series 685.)
288. locus regit actum = 場所支配行為原則
The place governs the act: the law of the locality regulates the thing to be done. SEE 91 U.S. 406.
289. connecting factor = 連結因素 + lex loci arbitri = 仲裁地適用法
The lex loci arbitri is the Latin term for "law of the place where arbitration is to take place" in the conflict of Laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are applied.
Explanation
When a case comes before a court and all the main features of the case are local, the court will apply the lex fori, the prevailing municipal law, to decide the case. But if there are "foreign" elements to the case, the forum court may be obliged under the conflict of laws system to consider:
whether the forum court has jurisdiction to hear the case (see the problem of forum shopping);
it must then characterise the issues, i.e. allocate the factual basis of the case to its relevant legal classes; and then apply the choice of law rules to decide which law is to be applied to each class.
The lex loci arbitri is an element in the choice of law rules applied to cases testing the validity of a contract. As an aspect of the public policy of freedom of contract, the parties to an agreement are free to include a forum selection clause and/or a choice of law clause and, unless there is a lack of bona fides, these clauses will be considered valid. If there is no express selection of a proper law, the courts will usually take the nomination of a forum as a "connecting factor", i.e. a fact that links a case to a specific georgraphical location. For these purposes, one of the "forums" that may be selected is arbitration. Hence, the fact that the parties have chosen a state as the place of arbitration is an indication that parties may have intended the local law to apply. This indication will be weighed alongside other connecting factors. The state that has the largest number of connecting factors will be the lex causae applied to resolve the dispute between the parties. If there is a tie, the connecting factors which relate to performance will be given a greater weighting.
290. evasion of law = 法律規避
In law, the Doctrine of Evasion is a fundamental public policy. Whereas a person may legitimately plan his or her affairs so as to avoid the incidence of obligations or liabilities imposed by the law, no-one is allowed to evade the operation of otherwise mandatory provisions once duties and liabilities have been properly imposed or incurred. It is also a common principle in conflict of laws.
Definition
This is a standard doctrine in most jurisdictions: in France, it is termed, fraude à la loi, in Spain, fraude de ley, in Italy, violazione di norme di legge, in Germany, Rechtswidrige Umgehung eines Gesetzes. It reflects the need for governments to prevent their citizens from intentionally and improperly manipulating their behaviour to prevent mandatory provisions in the law from applying to them. As the translated names necessarily imply, the key is an intention to displace the normal operation of the legal system. Sometimes, this intention will be express. On other occasions, it will be for the courts to decide whether a sufficient intention can be imputed. Once the intention is established, the evasive manoeuvre will be void and the normal legal provisions will apply to the parties.
Here are some examples:
Taxation
Almost all states operate a collection system for taxation revenues within a framework of law, and enforced through independent courts. Enabling statutes must be strictly applied, and it is generally against public policy to allow the tax administration to agree to reduce the amount of tax payable by any one individual. Like criminal law where agreements by the policing authorities to exempt a criminal are prohibited, tax law has a special status as being essential to an organised society in maintaining public trust through the policy of equal treatment in the legal system. Nevertheless, if a tax payer organises his or her affairs so as to exploit a loophole in the law and avoid the incidence of tax liability, this will usually be pemitted. It is not for the courts to legislate and plug the gaps left by the legislature. The test of avoidance will be whether there is a legitimate purpose for the given behaviour. Many states adopt a "business purpose" test, decomposing the transaction into its component steps to determine the true purpose of the transaction(s) (see tax avoidance/evasion).
Family law
In Family Law, the citizens of one state are not allowed to evade, say, the rules relating to marriages by blood relatives or by persons of the same biological sex, simply by travelling to and going through a ceremony in a state that does permit such marriages. The policies underpinning such laws are so fundamental to the culture of a state that they acquire mandatory status (see nullity in the conflict of laws). The same applies to divorce. An early case in France (under the civil law system) known as the Princess Bauffremont Affair decided by the Cour de cassation in 1878 [Civ. 18 mars 1878, S.78.1.193 (note Labbé)] saw the princess obtain citizenship in Germany for the purpose of obtaining a divorce there and then remarry, returning to France where she attempted to re-establish herself. Because the divorce was not recognised in France, her remarriage was declared null as a fraude à la loi.
Contract law
In Contract Law, as an exception to the principle of autonomy implicit in the policy of freedom of contract, the parties cannot by entering into a voluntary agreement evade obligations imposed by law nor prevent the courts from taking jurisdiction in the event that a dispute arises. And, as with tax, the courts will examine the entire context for any series of transactions that seeks to avoid the operation of law. Hence, if it is illegal to export particular goods from State X to State A, such a law cannot be evaded by entering into back-to-back agreements to export the goods first to State Y and thence to State A. Some laws are sufficiently fundamental that they can never be evaded. Thus, even though the contracts might be perfectly legal, they would be denied enforcement if the effect would be against public policy. The most common policies are those which:
-protect against unreasonable restraints of trade, e.g. agreements not to compete after terminating employment or selling a business must allow individuals a reasonable opportunity to earn a living.
-protect family relationships, e.g. an agreement relating to the custody of a child and maintenance cannot exclude the power of a court to examine its terms and to judge whether it is in the best interests of the child.
-prevent the enforcement of contracts:
involving commission of a tort or crime;
inducing breach of fiduciary duties;
inducing a breach in a contract with a third party;
disclaiming liability for harm caused intentionally, recklessly or negligently (including liability for any misrepresentation). Liability for personal injuries arising from the use of products can be disclaimed only in rare circumstances (e.g., two merchants fairly bargain for it, and the product is experimental).
-involving the waiver or release of entrenched rights, e.g. in the United States, the release of rights granted by the Age Discrimination in Employment Act of 1967, 81 Stat. 602, 29 U.S.C. § 621 will not be effective even if supported by consideration unless certain mandatory requirements set out in the Older Workers Benefit Protection Act are complied with.
Conflict of laws
At either the characterisation or the choice of law stage, the most usual manipulation involves the way in which the connecting factors are pleaded as between the lex fori and the lex loci so that inconvenient local laws are evaded in favour of a "foreign" law.
Detection
Under the law of the United States with the Drug Trafficking Vessel Interdiction Act, it is illegal to operate or embark in a submersible vessel or semi-submersible vessel without nationality on an international voyage with the intent to evade detection. This is curious because one of the required proofs of nationality are documents issued under the 1958 Convention on the High Seas, a convention which Congress has refused to ratify and therefore acknowledge.

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