Encyclopedia of Private International Law
Show Less

Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
Buy Book in Print
Show Summary Details
Limited access

France

Gilles Cuniberti

I. Sources of private international law

1. Major legislation

Ironically perhaps, the homeland of the Code Civil (Code Civil of 21 March 1804) never had comprehensive legislation, still less a code, on private international law. Indeed, until the late 20th century, French legislation was essentially silent on the issue, forepart from three articles of the Civil Code dating back to Napoleonic time: art 3 on →choice of law, and arts 14 and 15 on international jurisdiction.

Three drafts of a comprehensive legislation on private international law were prepared by leading scholars (Niboyet,Batiffol, Henri, Foyer) in the 1950s and 1960s, but they never completed the legislative process.

In the 1970s, the French parliament began to adopt special provisions on choice of law in statutes reforming certain areas of family law. In 1972, the law of parentage was reformed, and a number of choice-of-law rules were introduced in the Civil Code (now arts 311–17). In 1975, the law of divorce was reformed, and an innovative choice-of-law rule adopted (now art 309 Civil Code). Other choice-of-law rules were included in the Civil Code in 1997 (→Matrimonial property), 2001 (→Adoption), 2008 (statute of limitations), 2009 (civil union) and 2013 (→Marriage).

p. 1By contrast, in the fields of international jurisdiction and foreign judgments, no national legislation was passed, except for the purpose of implementing European legislation.

2. Significance of European private international law

The rise of European private international law in recent decades has significantly altered the sources of private international law in France. While for the better part of the 20th century French private international law was essentially judge-made (see I.4 below) and strongly influenced by doctrinal writings (see I.5 below), it is now increasingly found in European legislation. The most important sources have certainly been the Brussels and Lugano instruments, which have unified the law of international jurisdiction and foreign judgments in →civil and commercial matters among the EU Member States and, to a large extent, also →Switzerland, →Iceland and →Norway. But the EU has also adopted regulations in the field of choice of law (Rome Regulations) and certain comprehensive regulations covering all traditional aspects of private international law in novel subject matters (insolvency, inheritance, maintenance, etc). While the majority of these instruments do not apply universally and, thus, leave scope for national private international laws, others have completely supplanted national rules.

3. International conventions

International conventions prevail over national legislation. According to art 55 of the French Constitution (La Constitution du 4 octobre 1958 (JORF No 0238 of 5 October 1958, p 9151)), validly concluded international treaties, once officially published in France, form part of the internal legal system. France is bound by a significant number of multilateral and bilateral conventions.

Particularly relevant is the involvement of France at the →Hague Conference on Private International Law. France has had a continuous presence in its activities to produce uniform private international law rules, and has become a contracting party to many of the conventions adopted by the Conference. As of 1 July 2014, France has ratified or acceded to the following Hague Conventions: the Hague Civil Procedure Convention (Hague Convention of 1 March 1954 on civil procedure, 286 UNTS 265); the Hague Sales Convention (Hague Convention of 15 June 1955 on the law applicable to international sales of goods, 510 UNTS 147); the Hague Foreign Companies Convention (Convention of 1 June 1956 concerning the recognition of the legal personality of foreign companies, associations and institutions, available at <www.hcch.net>); the Hague Child Maintenance Convention 1956 (Hague Convention of 24 October 1956 on the law applicable to maintenance obligations towards children, 510 UNTS 161); the Hague Child Maintenance Convention 1958 (Hague Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations towards children, 539 UNTS 27); the Hague Infant Protection Convention (Hague Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of infants, 658 UNTS 143); the Hague Testamentary Dispositions Convention (Hague Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions, 510 UNTS 175); the Hague Legalisation Convention (Hague Convention of 5 October 1961 abolishing the requirement of legalisation for foreign public documents, 527 UNTS 189); the Hague Service Convention (Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters, 658 UNTS 163); the Hague Evidence Convention (Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters, 847 UNTS 241); the Hague Traffic Accident Convention (Hague Convention of 4 May 1971 on the law applicable to traffic accidents, 965 UNTS 415); the Hague Maintenance Recognition and Enforcement Convention 1973 (Hague Convention of 2 October 1973 on the recognition and enforcement of decisions relating to maintenance obligations, 1021 UNTS 209); the Hague Maintenance Applicable Law Convention 1973 (Hague Convention of 2 October 1973 on the law applicable to maintenance obligations, 1056 UNTS 204); the Hague Products Liability Convention (Hague Convention of 2 October 1973 on the law applicable to products liability, 1056 UNTS 191); the Hague Matrimonial Property Convention (Hague Convention of 14 March 1978 on the law applicable to matrimonial property regimes, 16 ILM 14); the Hague Agency Convention (Hague Convention of 14 March 1978 on the law applicable to agency, Hague Conference of Private International Law p. 1(ed) Collection of Conventions (1951–2009) (Intersentia 2009) 268); the Hague Access to Justice Convention (Hague Convention of 25 October 1980 on international access to justice, 1510 UNTS 375); the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89); the Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and cooperation in respect of inter-country adoption, 32 ILM 1134); the Hague Child Protection Convention (Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, 35 ILM 1391); and the Hague Adult Protection Convention (Hague Convention of 13 January 2000 on the international protection of adults, Hague Conference of Private International Law (ed), Collection of Conventions (1951–2009) (Intersentia 2009) 426). Additionally, France is bound by the Hague Maintenance Protocol 2007 (Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations, [2009] OJ L 331/19).

France is also a contracting party to a number of conventions concluded within the framework of the United Nations, such as the UN Maintenance Convention 1956 (United Nations Convention of 20 June 1956 on the recovery abroad of maintenance, 268 UNTS 3) and the United Nations Convention of 10 December 1962 on consent to marriage, minimum age for marriage and registration of marriages (521 UNTS 231). Among the →UNCITRAL conventions, France has ratified the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3) and the CISG (United Nations Convention of 11 April 1980 on contracts for the international sale of goods, 1489 UNTS 3). Finally, France has ratified the UNIDROIT Financial Leasing Convention (UNIDROIT Convention of 28 May 1988 on international financial leasing, 2312 UNTS 195) and Ottawa Factoring Convention (UNIDROIT Convention on international factoring of 28 May 1988, 2323 UNTS 373, 27 ILM 943).

International sources drafted within the framework of regional organizations are also significant. In the European context, France is a contracting party to conventions concluded within the Council of Europe, including the 1968 European Foreign Law Convention (European Convention of 7 June 1968 on information on foreign law, 720 UNTS 147), the Convention of 28 Mai 1970 relating to Stops on Bearer Securities in International Circulation (1138 UNTS 219), the European Agreement of 27 January 1977 on the transmission of applications for legal aid, ETS No 92, and the European Child Custody Convention (European Convention of 20 May 1980 on recognition and enforcement of decisions concerning custody of children and on restoration of custody of children, 1496 UNTS 37). Furthermore, France has ratified a number of the conventions of the International Commission on Civil Status, including the Convention of 4 September 1958 on the international exchange of information concerning civil status (932 UNTS 41).

While France has built a network of close to 40 bilateral conventions on the recognition and enforcement of judgments, legal assistance and civil procedure, the application of these conventions varies in scope. Bilateral conventions on the reciprocal recognition and enforcement of judgments in →civil and commercial matters concluded with European states have been largely superseded by EU regulations. Bilateral conventions were also concluded with other states, including Algeria (1964), →Argentina (1991), Benin (1975), →Brazil (1981), Burkina Faso (1961), Cameroon (1974), the Central African Republic (1965), Chad (1976), the Democratic Republic of Congo (1974), Djibouti (1986), Gabon (1963), the Ivory Coast (1961), Laos (1956), Madagascar (1973), Mali (1962), Monaco (1949), Mongolia (1992), Morocco (1957), Mauritania (1961), Niger (1977), Senegal (1964), Togo (1976), →Tunisia (1972), the United Arab Emirates (1991), →Uruguay (1997), →Vietnam (1993) and the former Yugoslavia (1971, succeeded by →Slovenia, →Bosnia-Herzegovina, →Serbia and →Montenegro). Some bilateral conventions are dedicated to family law. This is the case for the 1981 Convention between France and Morocco (Convention conclue entre la République française et le Royaume du Maroc relative au statut des personnes et de la famille et à la coopération judiciaire, signed in Rabat 10 August 1981, published by décret No 83435 dated 27 May 1983 (JO 1 June 1983, p 1643) and entered into force 13 May 1983, according to the provision of its art 29) and the 1971 Convention between France and former Yugoslavia (Convention entre la République p. 1française et le Gouvernement de la République socialiste fédérative de Yougoslavie relative à la loi applicable et à la compétence en matière de droit des personnes et de la famille, signed in Paris 18 May 1971, (JO 24 May 1973, p 5640), entered into force 1 December 1972; succeeded by Slovenia, Bosnia-Herzegovina, Serbia and Montenegro).

4. Role of case-law

Until the end of the 20th century and the rise of European private international law, French private international law was essentially judge-made. It has developed since the beginning of the 19th century through a number of decisions rendered by the French Supreme Court for private and criminal matters (Cour de cassation) which are precedents in all but in name (the most significant were edited in a book and commented on by Bertrand Ancel and Yves Lequette, Les grands arrêts de la jurisprudence française de droit international privé (Dalloz 2006)). As the lawmaking power of courts remains contested in France, the Cour de cassation has often hidden its actions by referring to the single provision of the Civil Code on choice of law, art 3, regardless of its relevance to the particular issue. In other cases, the court refers more boldly, but circularly, to ‘the general principles of private international law’, which are no more than its own previous authorities.

All Cour de cassation judgments rendered since 1970 are freely available at <www.legifrance.gouv.fr> where they are listed by case number.

5. Role of doctrinal writing

Doctrinal writing has traditionally been highly influential in the field of private international law in France. While the influence of legal academics is a general feature of the French legal system, it was particularly strong in this field until the rise of European private international law (see I.2 above). The main reason was the lack of legislation and the resulting need for courts to frame almost entirely the law. Senior judges were thus happy to engage in a dialogue with legal academics for that purpose. Such dialogue was encouraged by the fact that a number of professors with a strong interest in private international law were appointed to the bench, and by the existence of the French Committee of Private International Law, where judges, academics and practitioners meet four times a year to listen to and engage with a speaker on a topic of private international law.

Although judgments of the French Cour de cassation never refer expressly to academic writing, the origin of a number of rules laid down by the court can be traced to particular doctrinal writing, whether treatises or talks given to the French Committee of Private International Law.

II. History of private international law

The history of French private international law is one of intellectual debate and ideas rather than one of legislative reforms. The Civil Code initially included very few provisions on the topic, and the attempts to pass comprehensive legislation in the field in the mid-20th century failed (see I.1 above).

The Middle Ages were dominated by the statute theory, which broke with the general principle of territorial application of all laws to posit that different choice-of-law rules should apply depending on the subject matter of the dispute. Although initiated in →Italy, the statute doctrine was endorsed by a number of French writers, the most famous of whom was Charles Dumoulin (1500–1566). His main critic was Bertrand d’Argentré (1519–1590), who, while accepting that the territorial reach of local customs should depend on the subject matter of the dispute still favoured the territorial application of laws by distinguishing solely between territorial and personal customs, and considering most issues as territorial in nature.

At the turn of the 19th and 20th century, all French legal writers understood private international law as a tool aimed at resolving conflicts between sovereignties. As a consequence, some (such as Antoine Pillet, 1857–1926) considered that private international law rules were to be deduced from public international law (→Public international law and private international law), and accordingly should be common to all nations. Others (such as Etienne Bartin, 1860–1948, →Bartin, Etienne), however, explained that conflicts of sovereignties were, and could only be, resolved by national rules of private international law, which would therefore vary from one jurisdiction to another.

The ideas of Savigny (→Savigny, Friedrich Carl von), who was the first to offer to resolve p. 1choice-of-law issues by focusing on private interests, would only be accepted by the next generation, and have gone unchallenged in France ever since.

III. Administration of private international law

1. Special courts

In most fields, there is no particular court specialized in private international law, and international disputes can be heard by any court with international jurisdiction over them (see IV below). In 2006 and 2009, however, jurisdiction in →child abduction and in →adoption matters was vested in certain first instance courts (Tribunaux de grande instance; see arts L 211–12 and L211-13, Code of Judicial Organization (as restated by Ordonnance No 2006–673 du 8 juin 2006 portant refonte du code de l’organisation judiciaire et modifiant le code de commerce, le code rural et le code de procédure pénale (partie législative), as last amended by décret no 2014-1405 du 25 novembre 2014, art 2, entered into force as of 1 January 2015)).

Most cases raising issues of private international law are decided by the same chamber of the Cour de cassation (first chamber).

2. Application and enforcement of foreign law

Despite its status as part of the →lex fori, the application of choice-of-law rules is not always mandatory for French courts, but rather only where the parties may not dispose freely of their rights (Cass. Civ. 1ère, 26 May 1999, Belaid, case no 97-16684), as for instance in →marriage and divorce (→Divorce and personal separation) matters. In areas where parties may dispose freely of their rights, for instance in commercial matters, French courts are under no obligation to apply ex officio the relevant choice-of-law rule when none of the parties asks for such application or relies on foreign law (Cass. Civ. 1ère, 26 May 1999, Mutuelle du Mans IARD, case no 96-16361). Indeed, in cases where the parties may dispose of their rights, they also have the power to agree on the application of the law of the forum (Cass. Civ. 1ère, 19 April 1988, Roho, case no 85-18715), and they are deemed to have done so impliedly in cases where they have argued the case solely on the basis of French law before the first instance court (Cass. Civ. 1ère, 6 May 1997, Hannover International, case no 95-15309).

When a French court rules that foreign law applies, whether ex officio or at the request of a party, it has the duty to seek to ascertain its content (Cass. Civ. 1ère, 28 June 2005, Aubin, case no 00-15734). If it is unsuccessful, however, French law applies. The duty of the court to seek to ascertain the content of foreign law does not exclude the option of seeking assistance from the parties for that purpose. However, the court may not exclusively rely on them and rule that the content of foreign law could not be ascertained solely because the parties have failed to adduce convincing evidence to the court on the point.

In practical terms, French courts rarely appoint judicial experts for the purpose of ascertaining the content of foreign law. The parties either engage their own experts and file their written reports (certificat de coutume) to the court, or cite sources of foreign law directly.

IV. Basic principles of jurisdiction

1. General structure

a) Significance of European private international law

The international jurisdiction of French courts is governed to a large extent by EU regulations and the 2007 →Lugano Convention (Lugano Convention of 30 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2007] OJ L 339/3; see above, I.2). The territorial and subject matter scopes of these instruments vary. In particular, and subject to a few exceptions, the Brussels I Regulation (recast) (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1; →Brussels I (Convention and Regulation)) and the 2007 Lugano Convention apply when the defendant is domiciled in either the EU or in Convention territory and when the dispute subject matter pertains to →civil and commercial matters.

b) Articles 14 and 15 Civil Code

Articles 14 and 15 of the French Civil Code grant jurisdiction to French courts when either the plaintiff (art 14) or the defendant (art 15) is a French citizen. Since they were drafted in p. 11804, these have been the only statutory provisions governing the international jurisdiction of French courts. At the time it was only logical when French courts declined to hear disputes involving only foreigners. Now the provisions are widely regarded as exorbitant heads of jurisdiction. Over the years, a number of French scholars have advocated reducing their impact, but the Cour de cassation has stood firm (but see in the context of the recognition of foreign judgments, VI.3 below), and has refused to grant leave for an examination of the constitutionality of art 14 by the French Constitutional Council with regard to the right to a fair trial (Cass. Civ. 1ère, 29 February 2012, case no 11-40101).

Despite the wording of arts 14 and 15, which refers only to contractual disputes, the Cour de cassation extended their substantive scope to all subject matters except real property and enforcement (Cass. Civ. 1ère, 26 May 1970, Weiss, case no 68-13643). Moreover, arts 14 and 15 apply secondarily, where no other grounds for jurisdiction exist (see c) below).

Articles 14 and 15 establish a privilege (privilège de juridiction) for French nationals. Despite attempts by French lower courts to introduce discretion in the exercise of jurisdiction on the ground of →nationality, the Cour de cassation has upheld the mandatory nature of arts 14 and 15 for French courts. Nevertheless, French parties may waive their privilege and are deemed to do so by agreeing on a jurisdiction clause, or even by defending on the merits before a foreign court without first challenging its jurisdiction.

c) Application of domestic grounds for territorial jurisdiction

As the Cour de cassation extended the jurisdiction of French courts to disputes between foreigners, it had to craft additional grounds for international jurisdiction. In the absence of legislation on the point, it held that French domestic rules of territorial jurisdiction could in principle be used for the purpose of determining the international jurisdiction of French courts (Cass. Civ. 1ère, 19 October 1959, Pelassa). However, domestic rules must be adapted in the rare cases where their application would infringe an exclusive, foreign state jurisdiction. As French courts consider real property and enforcement matters as falling within the exclusive jurisdiction of, respectively, the court of the location of the property and where the enforcement is carried out, they will only retain jurisdiction if either the property is located, or the enforcement is carried out in France, irrespective of the content of domestic rules.

French domestic rules of territorial jurisdiction are to be found first and foremost in the Code of Civil Procedure (Code de Procédure Civile (Established by Décret No 75–1123 du 5 décembre 1975 instituant un nouveau code de procédure civile and renamed Code de procédure civile by art 26 LOI no 2007-1787 du 20 décembre 2007 relative à la simplification du droit (JORF No 0296 du 21 décembre 2007, p 20639), as last amended as of 11 January 2015)), but also in codes governing special subject matters (Employment Code (established by Loi n° 73–4 du 2 janvier 1973 relative au code du travail, as last amended as of 14 February 2015), Insurance Code (Code de assurances, Act No 2004–811 of 13 August 2004), Commercial Code (Code de Commerce, Act No 2013–504 of 14 June 2013), etc).

While art 48 Civil Procedure Code prohibited jurisdiction clauses in domestic cases unless stipulated by commercial parties ‘in a very apparent manner’, the Cour de cassation ruled in 1985 that none of these requirements apply in international cases, and that jurisdiction clauses are in principle valid in international cases, unless they violate a French rule of exclusive jurisdiction (Cass. Civ. 1ère, 17 December 1985, Compagnie de signaux et d’entreprises électriques, case no 84-16338). Further, jurisdiction clauses may not derogate from French domestic rules of subject matter jurisdiction (Cass. Com., 10 June 1997, case no 94-12316). The Cour de cassation has also ruled, albeit in the context of the →Lugano Convention, that asymmetrical jurisdiction clauses are unenforceable if the chosen courts cannot be determined objectively (Cass. Civ. 1ère, 25 March 2015, Credit Suisse, case no 13-27264). By contrast, the potential applicability of a French international mandatory rule has no influence on the enforceability of a clause providing for the jurisdiction of a foreign court (Cass. Civ. 1ère, 22 October 2008, Monster Cable, case no 07-15823).

2. Obligations

The jurisdiction of French courts over defendants domiciled in the EU, Switzerland, Iceland or Norway is governed either by the Brussels I Regulation (Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in p. 1civil and commercial matters, [2001] OJ L 12/1; →Brussels I (Convention and Regulation)) or by the Lugano Convention (above, IV.1.a)). The jurisdiction of French courts over defendants domiciled elsewhere is primarily governed by art 46 Civil Procedure Code. In contractual matters, art 46 grants jurisdiction to the court of the place of actual delivery of the goods or to the court of the →place of performance of the service. In tort matters, art 46 grants jurisdiction to the court of the place where either the event giving rise to the damage occurred, or the place where the loss was suffered. Article 46 also grants jurisdiction in all cases to the court of the defendant’s domicile, but this has become irrelevant as European private international law would apply were it in France.

In the context of cybertorts, French courts have qualified the jurisdiction of the court of the place of the loss by adding a requirement that the website target the French public (see, eg, Cass. Com., 20 September 2011, eBay Europe, case no 10-16569).

3. Property

French courts have exclusive jurisdiction over immovable property situated in France pursuant to European private international law. There is no specific head of jurisdiction for movable property (→Property and proprietary rights). Some disputes relating to movable property are contractual in nature and thus governed by art 46 Civil Procedure Code (see IV.2 above). Other disputes fall within the scope of the general rule granting jurisdiction to the court of the defendant’s domicile, but this has lost relevance as European private international law would apply if the domicile were in France.

4. Intellectual property

The general provisions on contracts and non-contractual obligations of art 46 Civil Procedure Code are applicable in this field. Exclusive jurisdiction of French courts in proceedings concerned with the registration or validity of industrial property rights registered in France is to be determined under art 24(2) Brussels I Regulation (recast).

5. Family matters

In family matters, art 1070 Civil Procedure Code grants domestic territorial jurisdiction to the court of the place where the family resides. When the parents do not live together, jurisdiction lies either with the court of the parent’s residence with whom the children habitually live when both parents share parental responsibility, or with the court of the residence of the sole parent bearing parental responsibility (→Guardianship, custody and parental responsibility). Finally, in other cases, the court of the defendant’s residence has jurisdiction. Article 1070 further provides that a special rule applies for financial claims, which fall within the jurisdiction of either the court of the creditor’s residence, or of the parent who primarily carries the burden of children.

The application of art 1070 is extended to determining the international jurisdiction of French courts unless an international convention or a European regulation applies.

6. Inheritance matters

As of 17 August 2015, the international jurisdiction of French courts in the inheritance field will be governed solely by the Succession Regulation (Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, [2012] OJ L 201/107; →Succession; →Rome IV Regulation (succession)).

7. Corporations

The general rule granting jurisdiction to the court of the defendant’s domicile (→Domicile, habitual residence and establishment) applies for corporate disputes. While it has lost most of its relevance as European private international law would apply if the domicile were in France, French courts also have jurisdiction over corporations with a mere establishment in France.

The Insolvency Regulation (Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, [2000] OJ L 160/1) governs insolvency proceedings where the debtor has its COMI within the EU. Where the COMI is outside of the EU, French courts have jurisdiction to open insolvency proceedings if the debtor has an establishment or any other interest in France (Cass. Com., 26 October 1999, Sandur Holidays, case no p. 196-12946; →Insolvency, jurisdiction and vis attractiva).

V. Basic principles of choice of law

1. Obligations

The choice-of-law field is covered almost entirely by international conventions and European regulations. The Rome I (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations, [2008] OJ L 177/6; →Rome Convention and Rome I Regulation (contractual obligations)) and the →Rome II Regulation (non-contractual obligations) (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40) are of universal application and leave no scope for the application of national rules. However, each of these instruments provides that choice-of-law rules contained in either existing international conventions to which either at least one non-EU Member State is a party or special EU law instruments apply. As a result, the Hague Sales Convention, the Hague Products Liability Convention, the Hague Agency Convention and the Hague Traffic Accident Convention prevail over the Rome I and Rome II Regulations.

In contractual matters, the Rome Convention on the Law Applicable to Contractual Obligations of 4 April 1980 (Rome Convention on the law applicable to contractual obligations (consolidated version), [1998] OJ C 27/34; →Rome Convention and Rome I Regulation (contractual obligations)) has retained some significance, as its scope is wider than that of the Rome I Regulation (and by virtue of the fact that it will apply to contracts concluded before 18 December 2009). French courts have applied it to determine the law governing administrative contracts.

While French national choice-of-law rules have essentially become obsolete in obligation matters, one significant exception concerns privacy and rights relating to personality, which were excluded from the scope of the Rome II Regulation. The general rule developed by the Cour de cassation in tort matters is that the law of the place of the tort applies, and that in cases where the event giving rise to the loss and the loss occurred in different jurisdictions, the law governs of the jurisdiction which is the most closely connected to the tort (Cass. Civ. 1ère, 11 May 1999, Mobil North Sea, case no 97-13972).

2. Property

Article 3 Civil Code provides that immovable property situated in France is governed by French law. The Cour de cassation has held since 1933 that the same rule applies to movable property, and that movable property situated in France is governed by French law (see, most recently, Cass. Civ. 1ère, 3 February 2010, Arman, case no 08-19293). Although the choice-of-law rule has typically been expressed in a unilateral form, the rule is multilateral and would provide for the application of foreign law to property (→Property and proprietary rights) located abroad (→Foreign law, application and ascertainment).

The scope of the law of the situs can be limited partly by the law of the source of the property rights. When property rights are constituted by contract, the law of the contract governs the validity of the transaction and its effects as between the parties; the law of the situs, however, remains applicable with respect to third parties, including requirements stipulated for their protection. The scope of the law of the situs is also limited in cases of insolvency, as the law of the insolvency governs the enforceability of in rem securities towards the estate of the insolvent debtor (Cass. Civ. 1ère, 8 January 1991, Heinrich Otto, case no 89-16741).

In cases of change of situs from a foreign country to France, French courts have always applied French law, and have several times ruled that in rem securities which do not exist under French property law would be of no effect in France, despite being validly constituted abroad, as French law alone governs the effect of in rem rights in France (Cass. Civ. 1ère, 8 July 1969, Soc Diac).

3. Intellectual property

The intellectual property field is essentially governed by international conventions. Outside of their scope, the few cases which have addressed the issue suggest that the existence of intellectual property rights is governed by the law of the jurisdiction where the rights arose, and that their protection is governed by the law of the jurisdiction where it is sought.

4. p. 1Family matters

Article 3 French Civil Code iterates the traditional choice-of-law rule in personal matters providing for the application of French law to French nationals irrespective of their residence. Although expressed in a unilateral form, French courts have long applied it multilaterally and generally applied the law of nationality in personal and family matters.

a) Marriage

With respect to →marriage, no less than four distinct issues must be distinguished. In 2013, the French parliament codified the choice-of-law rules framed by the Cour de cassation in the 20th century with respect to the validity of marriage. Article 202-1 Civil Code provides that substantive requirements are governed by the national law of the relevant spouse, while art 202-2 provides that formal validity is governed by the law of the place where the marriage was celebrated. The effects of marriage are governed by the law of the spouses’ common nationality. However, absent a common nationality, French courts apply the law of the common domicile or, failing that, the law of the forum (Cass. Civ. 1ère, 17 April 1953, Rivière). While the rule initially applied to all effects of marriage, the French legislature decided to adopt a peculiar choice-of-law rule in 1975 by introducing →unilateralism in the French conflict of laws for separation and divorce (→Divorce and personal separation). Article 309 Civil Code provided that French law applies to divorce or separation proceedings if: (i) both spouses are French nationals; or (ii) the spouses have their common domicile in France; or (iii) no other law wants to apply. The third ground for application of French law implicitly called for considering the application of foreign laws pursuant to foreign choice-of-law rules, but only where the two first grounds were not met, thus favouring the application of French law over foreign laws. The provision has now been superseded by the Rome III Regulation.

b) Matrimonial property

France is a party to the Hague Matrimonial Property Convention, which applies to spouses who either married or designated the law applicable to their →matrimonial property regime after 1 September 1992. The Convention will be displaced in 2019 by Regulation No 2016/1103 on matrimonial property regimes.

c) Parentage

Parentage is in principle governed by the law of the mother’s →nationality at the time of the birth or, when the mother is unknown, the law of the child’s nationality (art 311–14 of the Civil Code). However, irrespective of the applicable law, French law applies to the effects of common residence of a child and one or two adult parents, provided their habitual residence is in France (art 311–15) (→Domicile, habitual residence and establishment).

Article 311–17 Civil Code lays down a rule favouring the validity of voluntary declarations of paternity or maternity by deeming such declarations valid when made in conformity with either the law of the declarant’s nationality or of the child’s nationality.

d) Adoption

Article 370–3 Civil Code provides that the requirements for →adoption are governed by the law of the adoptive parent’s nationality and, in the case of married adoptive parents, the law of the effects of their marriage (see V.5.a) above). However, art 370–3 further provides that: (i) a married couple may not adopt if adoption is impermissible under the law of the nationality of each spouse; and (ii) a foreign minor may not be adopted if this is impermissible under the law of his nationality, unless the minor was born and habitually resides in France. Finally, irrespective of the applicable law, art 370–3 provides that in all cases the child’s legal representative must consent to the adoption.

The effects of an adoption granted in France are governed by French law (art 370–4 Civil Code). An adoption granted abroad produces in France the effects of the closest kind of adoption under French law (art 370–5 Civil Code).

e) Civil union

Article 515-7-1 Civil Code provides that the formation, effects and termination of →Registered partnerships are governed by the law of the authority which registered the partnership.

5. Inheritance matters

As of 17 August 2015, the choice-of-law rules laid down by the Succession Regulation (→Succession), which are of universal application (art 20), will entirely pre-empt traditional French choice-of-law rules in the field. However, pursuant to art 75 of the Regulation, the Hague p. 1Testamentary Dispositions Convention remains applicable.

6. Corporations

Both arts 1837 Civil Code and L 210–3 Commercial Code provide that: (i) corporations with their seat in France are governed by French law; and (ii) third parties may rely on the registered seat of the corporation if it is different from its actual seat. There is a debate among French scholars regarding whether these provisions should be interpreted as revealing a preference for application of the law of the corporation’s actual seat, or of its registered seat.

The Insolvency Regulation governs insolvency proceedings where the debtor has its COMI within the EU. Where the COMI is outside the EU, French courts also apply the law of the forum where the relevant insolvency proceedings were commenced (→Insolvency, applicable law).

VI. Basic principles of recognition and enforcement of foreign judgments

1. Significance of European private international law

The recognition and enforcement of foreign judgments originating from European states is governed to a large extent by EU Regulations and the 2007 →Lugano Convention (see I.2. above). The European Regulations apply to judgments rendered by courts of other EU states in fields covered by an EU Regulation: →Civil and commercial matters, insolvency, matrimonial matters and parental responsibility, maintenance, inheritance. The 2007 Lugano Convention applies to judgments rendered by Swiss, Icelandic and Norwegian courts in civil and commercial matters.

2. Bilateral treaties of judicial cooperation

France has concluded bilateral treaties of judicial cooperation with close to 40 states, which include rules on recognition and enforcement of foreign judgments. Most of these treaties were concluded with former colonies, in particular African states (see I.3 above). However, they only achieve limited harmonization between the contracting states, as they typically define essential concepts such as →public policy (ordre public) or the jurisdiction of the foreign court by reference to the concepts of the forum, which means in effect that they are essentially transparent instruments.

Many bilateral treaties were also concluded with European states, and while often expressly superseded by applicable EU regulations (see VI.1 above), they remain in force with the exception of the 1869 Franco-Swiss treaty (Convention sur la compétence judiciaire et l’exécution des jugements en matière civile signée entre la France et la Suisse le 15 juin 1869, as completed by additional act dated 4 October 1935, and its Protocol), abrogated in 1991. However, the treaties remain applicable in fields not covered by EU legislation.

3. French common law

Absent applicable EU legislation or a bilateral treaty, French national rules on the recognition and enforcement of foreign judgments apply. French modern law on foreign judgments has been developed entirely by the Cour de cassation since 1964, when it abandoned its 150-year-old practice of reviewing foreign judgments on the merits. Instead, French courts now have to verify whether foreign judgments meet a restrictive set of conditions. In 1964, there were five such conditions, but one was abandoned in 1967 and another in 2007. The remaining conditions are: (i) the foreign court must have jurisdiction; (ii) the foreign judgment may not be contrary to French international public order; and (iii) it may not have been obtained in fraude à la loi, ie for the sole purpose of avoiding the application of French law (Cass. Civ. 1ère, 20 February 2007, Cornelissen, case no 05-14082).

The first condition was defined in 1985 in Simitch v Fairhurst (Cass. Civ. 1ère, 6 February 1985, case no 83-11241). The jurisdiction of foreign courts is assessed by considering whether there was ‘an actual connection between the dispute and the country of the foreign court’. The test is flexible and will be met by any foreign court which is reasonably connected to the dispute, irrespective of the actual head of jurisdiction that the foreign court applied. However, the test will not be applied when the French legal system considers that it has exclusive jurisdiction over a given dispute. This is the case in a limited number of cases such as disputes relating to real property situated in France, or enforcement carried out in France. For a number of years, this exclusive jurisdiction existed for any dispute involving a French citizen who p. 1had not waived their privilege of jurisdiction, ie the right to litigate in France under art 15 Civil Code (see IV.1.b) above). The Cour de cassation abandoned this provision in the context of foreign judgments in 2006 (Cass. Civ. 1ère, 23 May 2006, Prieur, case no 04-12777).

The condition of compatibility with French international public order is more traditional. Foreign judgments violating the most fundamental values of the French legal order will be denied effect in France. Over recent decades, the Cour de cassation has interpreted this condition narrowly, and has shown a remarkable openness to foreign legal cultures. However, a number of foreign rules or practices have been judged contrary to international public order, including Islamic divorce decrees, disproportionate punitive →damages and unreasoned judgments.

Finally, foreign judgments will not be recognized where obtained for the sole purpose of avoiding the application of French law. The operation of this condition raises two principal issues. First, providing evidence of a party’s reason for initiating proceedings in a given court is a delicate matter. Second, the existence of an actual connection between the dispute and the foreign jurisdiction (see above) will typically sufficiently explain why a party chose to sue in the foreign court. It is thus unclear whether, in practice, the third condition is genuinely independent of the first.

VII. Arbitration

1. Territorial scope and substantive rules of international arbitration

The French law of international arbitration was reformed in 2011 and is now contained in arts 1504 to 1527 Civil Procedure Code. Contrary to most other legislations, it does not define its territorial scope of application by reference to the seat of the arbitration, or indeed by reference to any other →Connecting factor. This is one of the consequences of the doctrine of delocalization of international arbitration as endorsed by the Cour de cassation. According to this doctrine, arbitration proceedings and arbitral awards are not the products of the legal order of the arbitral seat, but rather are autonomous and self-sufficient international legal institutions (Cass. Civ. 1ère, 29 June 2007, Putrabali, case no 05-18053). Accordingly, the law of the arbitral seat has no particular legitimacy to determine the fate of the arbitral process. The application of state laws is legitimized exclusively by a party to the arbitration seeking recourse to state institutions in general and courts in particular. Thus, French courts will systematically apply French law when requested to address an arbitration matter. In this field, French courts never apply traditional choice-of-law rules. Instead, they resort to a different choice-of-law methodology, which simply consists in the systematic application of the rules of the forum specifically framed for international disputes. The rules, but also more generally the choice-of-law methodology, are labelled ‘substantive rules of international arbitration’ (règles matérielles de droit de l’arbitrage international: see eg Cass. Civ. 1ère, 20 December 1993, Dalico, case no 91–1828).

Two interesting examples of such substantive rules of international arbitration are the rules governing the capacity of states to arbitrate and the validity of arbitration agreements. Under the traditional choice-of-law methodology, French courts had initially ruled that the capacity of states to enter into arbitration agreements was an issue governed by the personal law of the relevant actor, ie the law of the relevant state. In one of the first cases where the new methodology was applied, the Cour de cassation decided that French courts would assess the capacity of foreign states to arbitrate by applying a French substantive rule of international arbitration granting such capacity to all foreign public entities (Cass. Civ. 1ère, 2 May 1966, Galakis). With respect to the validity of arbitration agreements, the Cour de cassation has laid down a number of rules, including one providing that the existence and enforceability of arbitration agreements are assessed solely by reference to the parties’ common intention, and that the only relevant requirements are those arising from French international mandatory rules and public policy (Cass. Civ. 1ère, 20 December 1993, Dalico, case no 91–1828).

2. Choice-of-law rules applicable in arbitral proceedings

With respect to the law governing the merits of the dispute, an arbitral tribunal must apply the rules of law chosen by the parties or, absent such choice, the rules of law that it considers appropriate (art 1511 Civil Procedure Code). Contrary to many other pieces of legislation, arbitral tribunals need not apply →Choice of law rules absent choice by the parties. The reference to rules of law includes non-state rules p. 1(Cass. Civ. 1ère, 22 October 1991, Valenciana, case no 89-21528).

With respect to the rules governing the arbitration procedure, the parties are free to agree on the procedure to be followed in the arbitral proceedings, whether directly or by reference to arbitral or national rules. Absent such choice, the arbitral tribunal may determine the procedure at its discretion (art 1509 Civil Procedure Code).

3. Review of international arbitral awards

Despite the doctrine of delocalization of international arbitration (above, VII.1), the French legislature has maintained the power of French courts to set aside international arbitral awards made in France (art 1518 Civil Procedure Code). The grounds for doing so are the same as the grounds for enforcing international arbitral awards, whether made in France or abroad. As the grounds for enforcing arbitral awards are more liberal than those of the New York Convention, French courts apply them exclusively, as expressly authorized by art 7 of the Convention (Cass. Civ. 1ère, 23 March 1994, Hilmarton, case no 92-15137).

There are five admissible grounds for reviewing international arbitral awards (art 1520, Code of Civil Procedure), which include the verification of the jurisdiction of the arbitral tribunal, of the fairness of the procedure and of the conformity of the award with French international public order. From a comparative perspective, the two most remarkable are the limited relevance of the verification of the conformity to French international public order, which has been limited to obvious violations of public order (Cass. Civ. 1ère, 4 June 2008, Cytec, case no 06-15320), and the enforcement of arbitral awards set aside in their country of origin (Cass. Civ. 1ère, 23 March 1994, Hilmarton, case no 92-15137).

Literature

  • Bertrand Ancel and Yves Lequette, Grands arrêts de la jurisprudence française de droit international privé (5th edn, Dalloz 2006);

  • Bernard Audit and Louis d’Avout, Droit international privé (6th edn, Economica 2010);

  • Dominique Bureau and Horatia Muir Watt, Droit international privé (2nd edn, PUF 2010);

  • Sandrine Clavel and Estelle Gallant, Les grands textes de droit international privé (Dalloz 2014);

  • Gilles Cuniberti, ‘The Liberalization of the French Law of Foreign Judgments’ (2007) 56 ICLQ 931;

  • Samuel Fulli-Lemaire and Daniel Rojas Tamajo, ‘France’ in Jose Luis Iglesias, Carlos Esplugues and Guillermo Palao (eds), Application of Foreign Law by Judicial and Non-judicial Authorities in Europe (Sellier 2011) 185;

  • Emmanuel Gaillard and John Savage, Fouchard, Gaillard and Goldman on International Commercial Arbitration (Kluwer 1999);

  • Jean-Michel Jacquet, Philippe Delebecque and Sabine Corneloup, Droit du commerce international (2nd edn, Dalloz 2010);

  • Yvon Loussouarn, Pierre Bourel and Pascal de Vareilles-Sommières, Droit international privé (10th edn, Dalloz 2013);

  • Catherine Kessedjian, Droit du commerce international (PUF 2013);

  • Pierre Mayer and Vincent Heuzé, Droit international privé (11th edn, Montchrestien 2014);

  • Marie-Laure Niboyet and Géraud de Geouffre de la Pradelle, Droit international privé (4th edn, LGDJ 2013);

  • Philippe Pinsolle, ‘The Status of Vacated Awards in France: The Cour de Cassation Decision in Putrabali’ (2008) 24(2) Arb.Int’l 277.