The following entry contains the Black Letter and Comments a and b to § 2.01 of Tentative Draft No. 1, Chapter 2. Domicile, from Restatement of the Law Third, Conflict of Laws. The full draft contains additional Comments and Reporters’ Notes.

This project was on the 2020 Annual Meeting agenda before the Meeting was cancelled due to COVID-19. Accordingly, this text has not been considered by the membership of The American Law Institute and therefore does not represent the position of the Institute on any of the issues with which it deals. This supplement may be revised or supplemented prior to consideration by the membership in May 2021. If you are interested in obtaining a copy of this or any other Section of this project, please contact us.

If you would like to learn more about the contents of Tentative Draft No. 1, watch this video overview by Reporters Kermit Roosevelt III, Laura E. Little, and Christopher A. Whytock.

§ 2.01. Domicile of Natural and Juridical Persons
(1) Conflict-of-laws rules identify the place where a natural person’s life or a juridical person’s organizational identity is centered for resolving conflict-of-laws issues.
(2) A natural person is presumed to have a domicile in the place where the person’s life is centered for resolving choice-of-law issues.
A juridical person is presumed to have a domicile in the place of its principal place of business for resolving a particular choice-of-law issue.

Comment:

a. Significance of a person’s domicile in a place. The concept of a domicile in a place ensures that persons bear appropriate legal responsibilities as well as enjoy rights and protections of laws. Accordingly, the link between a person and a place plays an important role in matters relating to choice of law, personal jurisdiction, and recognition of judgments. This Chapter provides guidelines for identifying the place with the most salient relationship with a person for the matter at issue.

Prior Restatements of conflict of laws used the concept of domicile to identify the place with the most salient relationship to a natural person. This Section continues that approach, but also uses the word domicile to include juridical persons. A juridical person is an entity that is created by law and possesses a legal identity, such as a corporation or a limited partnership. The prior Restatements’ usage of the word “domicile” varies from some sources that take the position that artificial entities do not have a domicile. For the purposes of consistency and in recognition of the changing understanding of domicile, this Restatement uses the term to identify the State that is the center of a natural person’s life or the center of a juridical person’s identity. The application of the term “domicile” to juridical persons accords with the approach of this Chapter, which ensures that domicile is established by objective evidence and not subjective intent. Section 2.03 further explains the objective approach to establishing domicile.

Section 2.02 lists the concepts that guide the process of identifying the place that is central to a natural person’s affairs: domicile. Section 2.02 provides for a rebuttable presumption in favor of using a natural person’s domicile as the person’s primary connection with a place. Section 2.08 lists concepts that guide the process of identifying the place that is central to a juridical person’s affairs for resolving a particular conflict-of-laws issue. For choice-of law issues, § 2.08 provides a rebuttable presumption in favor of using a juridical person’s principal place of business as the place with which a juridical person has its primary connection. In limited circumstances, using a person’s domicile to resolve choice-of-law issues may produce a result that is manifestly inappropriate. In such a rare instance, the domicile determination does not act as an obstacle to applying the law of a more appropriate state.

As a general matter, a natural person is deemed to have only one domicile at a time. The concept of domicile is more flexible as it relates to a juridical person, and may more easily vary according the particular choice-of-law issue at hand. For this reason, this Section refers to a natural person’s domicile “for resolving choice-of-law issues” and refers to a juridical person’s domicile “for resolving a particular choice-of-law issue.”

b. Scope of this and succeeding Sections. The concept of a person’s domicile in this and succeeding Sections is limited to conflict-of-laws issues. Nonetheless, the domicile concept is useful and often necessary in other legal contexts. Given the shifting values and concerns animating different areas of law, courts and legislatures may choose to vary the domicile for persons as principles of justice outside the conflict-of-laws context require. Although courts and legislatures are free to use the concepts and definitions in the succeeding Sections for guidance in legal analyses outside the conflict-of-laws area, this Section restates rules regarding personal nexus as the rules apply to conflict-of-laws questions.

Conflict-of-laws questions include those pertaining to personal jurisdiction, choice of law, and judgment recognition and enforcement. For the purposes of this Restatement, the domicile concept will be most important to choice-of-law matters in civil disputes between private persons, as opposed to questions of personal jurisdiction and judgment recognition and enforcement. That is particularly true for the purposes of domicile for juridical persons, covered in § 2.08 of this Chapter. Section 2.08 is limited to delineating the domicile of juridical persons for choice-of-law purposes only. Of particular note, the U.S. Supreme Court has identified a wide array of principles governing personal jurisdiction of juridical persons, and for that reason § 2.08 does not control the domicile of juridical persons for personal-jurisdiction purposes. Matters related to personal jurisdiction are covered in Chapter 3, and matters related to recognition and enforcement of judgments are covered in Chapter 4.

A related question concerns whether an individual is subject to a particular government’s benefits and burdens. The concepts in this Section may inform issues of government benefits and burdens but must yield to legislative mandates. Moreover, those making choice-of-law determinations should recognize that domicile is only one of several connecting factors that influence the ultimate choice. The Illustrations in this Chapter are designed to show how domicile might be ascertained and used in the context of a conflict-of-laws determination. The Illustrations are not meant to suggest that other connecting factors are disqualified from playing a significant role in that determination.

In evaluating connections to a place for personal-jurisdiction questions, particular care must be taken to consider the influence of U.S. constitutional principles, which play a dominant role in personal-jurisdiction determinations. For questions related to recognition and enforcement of judgments, U.S. constitutional law also plays an important role. In addition, statutory mandates often control questions of judgment recognition and enforcement. The principles laid out in this Restatement provide guidance for questions not answered by the statutory and constitutional principles that govern personal jurisdiction as well as the recognition and enforcement of judgments. Although the Sections in this Chapter provide definitions that are uniform for all three conflict-of-laws categories (personal jurisdiction, choice of law, and recognition of judgments), each category may have unique concerns that require terms to be tailored and interpreted for the specific context.

A final matter related to scope concerns interstate, intrastate, and international conflicts. The Restatement Second, Conflict of Laws, largely confined the scope of its domicile provisions to interstate and international matters. Restatement Second, Conflict of Laws § 11, Comment f. The Sections in this Chapter regarding domicile links are similarly confined; this Restatement does not cover intrastate conflicts such as may occur between counties, cities, towns, and villages. See § 1.01, Comment b. The domicile Sections of this Restatement pertain to conflict of laws within the United States as well as conflict of laws between the United States (including one of the several States) and other parts of the world.

For conflict of laws as it relates to legal conflicts within the United States, domicile directs courts to a State only. This Restatement does not concern intrastate matters and thus does not provide rules for fixing a personal link to a particular location within a State. For conflict of laws involving legal conflicts between the United States (including one of the several States) and other parts of the world, it is important to remember that a personal link to a place should not be fixed in a unit broader than a territory having a single, separate legal system. On the other hand, if a nation has only one body of law that governs throughout its boundaries, the question becomes whether an individual has a close link to that nation (and not to a city, town, or other administrative unit within that nation).

Kermit Roosevelt, III

Reporter, Conflict of Laws

Kermit Roosevelt is Professor of Law at the University of Pennsylvania Law School. He works in a diverse range of fields, focusing on constitutional law and conflict of laws. His latest academic book, Conflict of Laws (Foundation Press 2010) offers an accessible analytical overview of conflicts. He also is the author of two novels, Allegiance (Regan Arts, 2015) and In the Shadow of the Law (Farrar, Straus & Giroux, 2005).

Laura Elizabeth Little

Associate Reporter, Conflict of Laws

Laura E. Little serves as the Charles Klein Professor of Law and Government and Senior Advisor to the Dean at Temple University Beasley School of Law. She specializes in federal courts, conflict of laws, and constitutional law. She teaches, lectures, and consults internationally on these subjects and is routinely engaged for training judges as well as for speeches at academic and judicial conferences.

Christopher A. Whytock

Associate Reporter, Conflict of Laws

Christopher Whytock is Professor of Law and Political Science at the University of California, Irvine, and a faculty affiliate and member of the advisory board of the UCI Center in Law, Society and Culture. His research focuses on transnational litigation, conflict of laws, international law, and the role of domestic law and domestic courts in global governance.

Pauline Toboulidis

The American Law Institute

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