An assessment of EU regulations relying on ‘habitual residence’ for jurisdiction and choice of law

Abstract

What is habitual residence and why is it such an important connecting factor? This thesis analysis and compares the personal connecting factors that confirms habitual residence as being the dominant and more appropriate means to determine choice of law. In Private International Law, aspects of Jurisdiction and Choice of Law have been greatly affected by the onslaught of EU Regulations. ‘Habitual Residence’ is seen to be taking ‘pole position’ over Domicile and Nationality within the EU Regulations for Jurisdiction and Choice of Law. This thesis assesses how EU Regulations rely more and more on the diversity and flexibility of habitual residence for jurisdiction and choice of law in contrast to the sometimes unreliable notions of domicile and nationality. The first chapter deals with the background of habitual residence, proving that it is less demanding than domicile and that the focus is more on past experience rather than future intentions. The concept of habitual residence was raised and prominently addressed as far back as 1896 in ‘The Hague Convention relating to Civil Procedure’. The second chapter details how the concept of habitual residence is viewed through the prism of EU Regulations. Chapter three addresses the harmonising and remedial role habitual residence plays as the key connecting factor in transnational cases. It shows the relationship between habitual residence and other key factors, like domicile and nationality, and its’ linkage between legal factors. Chapters four and five deals with the role habitual residence has in transnational cases in the context of personal jurisdiction and choice of law respectively. The conclusion verifies how habitual residence is superior to other factors and conditions used by EU Member State courts. This is accomplished through the discovery and evaluation of the role played by habitual residence in further establishing applicable law in transnational cases and future applications.