The Prevalence of Residence in the United States Conflict Resolution Rules in the Light of the Hague Conventions

Habitual residence as an alternative to domicile and nationality has become a prevailing connecting factor in conflict of law system. The purpose of this paper is to examine the potential benefits and risks about to replacement of domicile concept with habitual residence. The concept of habitual residence through international conventions which is the product of Hague Conference on Private International Law is imported in the United States Law. One of the reasons for accepting this new concept in Common Law and in particular in the United States law is avoidance of inflexible and arbitrary rules which exist in the concept of residence. While domicile refers to intention for living in a place for future, habitual residence refers to the objective and current situation and intention element in the latter is weaker than the former. Habitual residence is based on an objective and actual relationship between a person and a State. However, due to the lack of a universal definition of habitual residence, there is always a concern that domestic courts, by distorting and false interpretation of this expression, apply the traditional meaning of domicile with an appearance of a new phrase.