Determination of Habitual Residence in Chinese Private International Law: Lessons from Extraterritorial Experience

2018 ◽  
Vol 65 (1) ◽  
pp. 55-77
Author(s):  
Renshan Liu
Keyword(s):  
International Law ◽  
Private International Law ◽  
Habitual Residence

scholarly journals Residência Habitual e Lei Aplicável à Sucessão Causa Mortis Internacional

2016 ◽  
Vol 11 (2) ◽  
Author(s):  
Alfonso-Luis Calvo Caravaca
Keyword(s):  
International Law ◽  
Private International Law ◽  
European Law ◽  
The European Union ◽  
Rio Grande Do Sul ◽  
Habitual Residence ◽  
Applicable Law ◽  
Para Determinar ◽  
Carlos Iii

RESIDÊNCIA HABITUAL E LEI APLICÁVEL À SUCESSÃO CAUSA MORTIS INTERNACIONAL*  HABITUAL RESIDENCE AND APPLICABLE LAW TO INTERNATIONAL CAUSA MORTIS SUCCESSION  Alfonso-Luis Calvo Caravaca**   RESUMO: O objetivo deste artigo é analisar o conteúdo do Regulamento (UE) 650/2012 do Parlamento Europeu e do Conselho em relação à determinação da lei aplicável. A norma traz em seu texto um critério objetivo para determinar a lei aplicável aos casos concretos: a residência habitual do falecido ao tempo do óbito. Este fator de conexão é analisado, bem como a cláusula de exceção a sua aplicação. Os conceitos de residência habitual e da cláusula de exceção, as vantagens e os inconvenientes da aplicação do Regulamento (UE) 650/2012 e alguns casos concretos relativos a sucessões internacionais são apresentados. PALAVRAS-CHAVE: Lei aplicável. Direito Europeu. Direito Internacional Privado Europeu. Residência Habitual. Jurisdição Internacional. Sucessões. ABSTRACT: The aim of this article is to analyse the content of the European Union Succession Regulation (EU) 650/2012 concerning the determination of the applicable law. The Regulation contains objective standards to determine the applicable law in concrete cases: the habitual residence of a person at the time of its death. This connecting factor is analysed, as well as the exception clause and its application. The concepts of habitual residence and the exception clause, the advantages and the inconveniences of the application of the Regulation (EU) 650/2012 and some concrete cases related to cross borders successions were examined. KEYWORDS: Applicable Law. European Law. European Private International Law. Habitual Residence. International Jurisdiction. Succession. SUMÁRIO: Introdução. 1 Determinação da Lei Aplicável: o Critério Objetivo. 1.1 A Residência Habitual do Falecido ao Tempo do Óbito. 1.1.1 Conceito de “Residência Habitual”. 1.1.2 Grupos de Casos. 1.1.3 Vantagens e Inconvenientes da nova Regulamentação. 1.2 A Cláusula de Exceção. 1.2.1 Conceito e Crítica. 1.2.2 Pressupostos e Consequências Jurídicas. Referências.* Tradução de Silvio Brambila Fragoso Junior, mestrando do Program de Pós-Graduação em Direito da Universidade Federal do Rio Grande do Sul.** Catedrático de Direito Internacional Privado da Universidad Carlos III de Madrid, Espanha. Doutor em Direito pela Università di Bologna, Itália. 

Part V Family Law, 28 Mental Incapacity

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
International Law ◽  
Mental Capacity ◽  
Private International Law ◽  
Habitual Residence ◽  
Special Issue ◽  
Protective Measures ◽  
Mentally Disordered ◽  
Mental Capacity Act 2005 ◽  
Recognition And Enforcement ◽  
Mental Capacity Act

This chapter examines mental incapacity as a special issue in private international law. Problems arise in cases where, for example, a mentally incapacitated person may be present in one country but habitually resident in another when measures of protection are needed; or this person may own property situated in a country different from his present location or habitual residence that needs to be dealt with. This chapter considers the jurisdiction of the English courts to order protective measures over a mentally disordered or incapacitated person or over his property, as well as the choice of law rules governing the protection of mentally incapacitated persons, prior to and under the Mental Capacity Act 2005. It also discusses the recognition and enforcement of protective measures taken abroad, along with cases outside the realm of the Mental Capacity Act.

Law Applicable to Unilateral Juridical Acts and Uniform Conflict-of-law Rules

2013 ◽  
pp. 1-15
Author(s):  
Monika Pauknerová
Keyword(s):  
International Law ◽  
Private International Law ◽  
European Regulation ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Technical Structure ◽  
Juridical Acts ◽  
Supranational Regulation ◽  
Conflict Of Law

Private international law smoothes the edges of civilian law and common law thanks to its specific legislative and technical structure. Conflict-of-law rules are considered to be neutral, and therefore more appropriate for unification, than substantive rules because countries are prepared to surrender their own individual solutions for the sake of uniform international or supranational regulation. This is evident in the successful unification of conflict-of-law rules at the global and European Union levels, as compared with the less common partial unifications of substantive rules. The paper illustrates several examples of unilateral legal acts in the European space, how diverse may be their substantive qualification in different legal systems, and what impacts these substantive differences may have upon the determination of the applicable law for obligations under European conflict-of-law rules. From the perspective of the conflict of laws, an issue remains open regarding what approach should be taken where a uniform legislative instrument – namely a European Regulation – fails to include a particular institution or act either expressly or impliedly.

Developing Internet Jurisdiction in B2B and B2C Contracts: Focusing on Iranian Legal System with Comparative Study of American, English and eu Laws

2017 ◽  
Vol 31 (3) ◽  
pp. 276-304
Author(s):  
Taher Habibzadeh
Keyword(s):  
Comparative Study ◽  
International Law ◽  
Consumer Protection ◽  
Legal System ◽  
American English ◽  
Computer Software ◽  
Modern World ◽  
Private International Law ◽  
Habitual Residence ◽  
Electronic Communications

Abstract In the modern world, electronic communications play a significant role in areas of national and international law such as Internet jurisdiction. Private international law provides that the competent court is the court within which jurisdiction the contract is performed, so it is important to know the place of performance of the contract in the case of contracts for digital goods such as e-books or computer software delivered online. It is equally important in the case of electronic services such as e-teaching. Furthermore, as consumer protection in B2C contracts is important in developing global e-commerce, it is important to consider whether the consumer party is able to bring an action against the business party in his own place of domicile or habitual residence. The article analyses these questions and proposes ways in which the Iranian legal system might be developed to address issues of Internet jurisdiction in B2B and B2C contracts.

scholarly journals PRIVATE INTERNATIONAL LAW IN BRAZIL: A BRIEF OVERVIEW

2018 ◽  
Vol 1 (1) ◽  
pp. 11-37
Author(s):  
Carmen Tiburcio
Keyword(s):  
United States ◽  
International Law ◽  
The United States ◽  
Private International Law ◽  
The Status ◽  
Rules And Principles ◽  
The Subject

The paper is intended to provide an overview of Private International Law in Brazil. With this purpose, it presents in broad lines the subject matters of the discipline, undertaking, whenever possible, comparisons with the contours given to it in the United States. In sum, the text deals with the acquisition of Brazilian nationality, the status of aliens, the determination of the applicable legislation to legal relationships with international connections – which includes the exam of Brazilian connecting rules and principles of Private International Law – and the exercise of Brazilian jurisdiction.

Substance and procedure in international arbitration

2020 ◽  
Vol 36 (1) ◽  
pp. 3-66
Author(s):  
Saar A Pauker
Keyword(s):  
International Law ◽  
Private International Law ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
National Courts ◽  
Investment Treaty ◽  
Basic Theme ◽  
Material Points

Abstract The distinction between substance and procedure in private international law has been subject to extensive debates among national courts and scholarly writings. The basic theme that procedural issues are governed by the lex fori, and substantive issues are subject to the lex causae, is widely accepted, although the boundaries between substance and procedure are not always clear. This article examines the application of the distinction between substance and procedure in the area of international arbitration, as regards both commercial cases and investment treaty disputes. It is argued that the distinction between substance and procedure has significant ramifications in international arbitration. The central (though not the only) aim of this distinction refers to the determination of the rules to be applied to borderline issues, such as evidentiary matters, interest, and limitation rules. Arbitral tribunals should have a considerable level of discretion in drawing the distinction. Specified points of guidance are suggested for common grayzone questions. Although the general principles concerning the substance/procedure distinction are similar in investment treaty arbitration and international commercial arbitration, material points of difference, such as the key role of public international law, may somewhat narrow the investment treaty tribunals’ discretion in respect of drawing the distinction.

A re-examination of the conflict rules governing the validity of international contracts

2020 ◽  
Vol 7 (2) ◽  
pp. 41-59
Author(s):  
Prince Obiri-Korang
Keyword(s):  
International Law ◽  
Common Law ◽  
Careful Examination ◽  
Private International Law ◽  
Choice Of Law ◽  
Judicial Decisions ◽  
Legitimate Interest ◽  
The Law ◽  
Governing Law

Generally, under choice of law, the issue of uncertainty associated with the determination of the governing law of international contracts is quite clear. The level of this uncertainty, however, increases when dealing with questions about which law governs the validity of such contracts. Like other areas of private international law, matters concerning validity present several unique challenges both in theory and in practice, making it the most complicated topic in private international law literature. In fact, the uncertainty in this area has led to a situation where different rules are applied by different states, without taking into consideration the link that should exist between the state whose law becomes applicable and the function that the law is expected to serve – determining the validity of a contract. This article attempts to contribute to existing literature on choice of law questions regarding the validity of international contracts and also provides solutions, based on the underlying principles of private international law of contract that effectively address the uncertainty in this area of law. The article submits that the law that governs the validity of an international contract must, at all times, be one that has a legitimate interest in matters concerning the legality or otherwise of such contracts. In this regard, the article strongly opposes the theory that the parties’ intention determines the law that governs the validity of their contract. After a careful examination of literature and landmark judicial decisions in both civil law and common law jurisdictions, the article concludes that the lex loci solutionis is the appropriate law to determine matters relating to the validity of international contracts.

Los efectos patrimoniales de las parejas no registradas en Derecho internacional privado español = The patrimonial effects of unregistered couples in Spanish Private International Law

2018 ◽  
Vol 10 (1) ◽  
pp. 127
Author(s):  
María Asunción Cebrián Salvat
Keyword(s):  
International Law ◽  
Economic Consequences ◽  
Private International Law ◽  
International Jurisdiction ◽  
Applicable Law

Resumen: El nuevo Reglamento 1104/2016 se ocupa de la competencia judicial internacional, la Ley aplicable y el reconocimiento de decisiones relativas a los efectos patrimoniales de las uniones de hecho registradas. ¿Pero qué ocurre con los efectos patrimoniales de las uniones de hecho no registradas? Estas comunidades de vida, cada vez más comunes en España, conllevan también consecuencias económicas. Cuando se acaba el amor empiezan los litigios. Los integrantes de la pareja pueden reclamar alimentos debidos, pensión por desequilibrio, adjudicación de la vivienda y del ajuar familiar o posibles derechos sucesorios. En este trabajo se analizará la competencia judicial internacional y la Ley aplicable al patrimonio de las parejas de hecho no registradas en Derecho internacional privado español.Palabras clave: Normas de producción interna, competencia judicial internacional, ley aplicable, parejas de hecho, parejas no casadas, uniones de hecho.Abstract: New Regulation 1104/2016 deals with the assessment of international jurisdiction, applicable law and extraterritorial validity of decisions relating to the patrimonial effects of registered partnerships. The patrimonial effects of unregistered couples remain subject to domestic rules. These unions are more and more common in Spain and they also entail economic consequences. When love ends, litigation starts. The former partners can proceed against each other claiming for maintenance, compensatory allowances, rights of use and occupancy of the house or household effects and potential inheritance rights. This paper addresses the determination of international jurisdiction and applicable law on these matters under Spanish private international law.Keywords: Domestic rules, international jurisdiction, applicable law, civil partnerships, unmarried couples, de facto unions.

scholarly journals The Proper Basis for Exercising Jurisdiction in Internet Disputes: Strengthening State Boundaries or Moving Towards Unification?

2013 ◽  
Vol 13 (2) ◽  
Author(s):  
Niloufer Selvadurai
Keyword(s):  
International Law ◽  
Technological Evolution ◽  
Private International Law ◽  
Effective Solution ◽  
Complex Issue ◽  
International Convention ◽  
Widespread Agreement ◽  
Significant Divergence ◽  
National Boundaries

Private international law has developed on the premise of geographically discrete areas that could be effectively governed by nations with clear and delineated boundaries. The nature of internet communications however dissects and transcends national boundaries. In such a landscape of technological evolution, it is necessary to design new technologically-neutral principles for determining internet jurisdiction. While there is widespread agreement on the nature of the challenge posed by internet jurisdiction, there is significant divergence in the solutions proposed. The proposed solutions range from strengthening existing jurisdiction rules, to developing the present jurisdiction rules, to creating a new language of jurisdictional basis for the determination of internet disputes. After a consideration of the merits of the various veins of scholarship on this complex issue, it is recommended that the movement to unification through international convention provides the most effective solution to achieve consistency and certainty in the determination of jurisdiction in internet disputes.

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