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The Meaning of Domicile Under United Kingdom Law for the Purposes of the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters
Published online by Cambridge University Press: 21 May 2009
Extract
The 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the 1978 Convention on the Accession of Denmark, Ireland and the United Kingdom, entered into force as between the original six Common Market States and Denmark on the one hand, and the United Kingdom on the other, on 1 January 1987. The Convention is given internal effect within the United Kingdom by the Civil Jurisdiction and Judgments Act 1982.
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References
1. See too the Civil Jurisdiction and Judgments Act 1982 s. 10, as to the internal jurisdiction of United Kingdom courts in respect of trusts and consumer contracts under the Convention's Arts. 5(6) and 14 para. 1, respectively.
2. The writer's view is that the lex nationalis is to govern domiciliary incapacity exclusively, under Art. 52 para. 3, rather than in conjunction with laws otherwise referred to under Art. 52 paras. 1 and 2 — see Kaye, P., Civil Jurisdiction and Enforcement of Foreign Judgments (1987) pp. 295–296Google Scholar.
3. S.4 of the Domicile and Matrimonial Proceedings Act 1973 specifies the person upon whose domicile that of an unmarried person under sixteen years of age is dependent.
4. Dicey, and Morris, , The Conflict of Laws, 11th edn. (1987) p. 149Google Scholar et seq; Anton, A.E., Private International Law; A Treatise from the Standpoint of Scots Law (1967) pp. 174 and 177Google Scholar; Kaye, P., ‘Nationality and the European Convention on Jurisdiction and the Enforcement of Judgments1’, 37 ICLQ (1988) p. 271CrossRefGoogle Scholar et seq. The English and Scottish Law Commissions, in their Report on the Law of Domicile (Private International Law. The Law of Domicile: Cm. 220(1987) pp. 14–22 and 30–32), propose that certain changes be made to existing United Kingdom laws on domicile, including those relating to the domicile of dependent children and of persons suffering from mental disorder.
5. See Kaye, op.cit. n. 2, p. 325.
6. [1928] AC (Appeal Cases) 217.
7. Ibid., at p. 222. See too IRC v. Lysaght [1928] AC 234, at p. 240.
8. S. 42(8) of the Civil Jurisdiction and Judgments Act 1982 defines ‘official address’ as meaning an address which it is required by law to register, notify or maintain for the purpose of receiving notices or other communications.
9. See De Beers Consolidated Mines Ltd v. Howe [1906] AC 455; Swedish Central Rail Co. Ltd v. Thompson [1925] AC 495.
10. See Kaye, , op.cit. n. 2, pp. 625–631.Google Scholar
11. See Cmnd. 9494. Hayton, D., ‘The Hague Convention on the Law Applicable to Trusts and on their Recognition’, 36 ICLQ (1987) p. 260CrossRefGoogle Scholar.
12. See the Convention relating to the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, of 24 April 1984 [SI 1986/2027], Article IX, which came into force on 1 January 1987.