Developments in PIL Journals Scholarship

Revue Critique de Droit International Privé – Issue 3 of 2021

The new issue of the Revue Critique de Droit International Privé (3/2021) is out. It contains 2 articles and numerous case notes.

The editorial by Horatia Muir Watt (Sciences Po), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on the Dalloz website (Éclectisme et gai savoir).

In the first article, David Sindres (Professor, University of Angers) analyses the control implemented by the judge responsible for the enforcement of pecuniary condemnations pronounced by foreign courts (Le contrôle par le juge de l’exequatur des condamnations pécuniaires prononcées par un juge étranger).

The control exercised by the enforcement judge over the amount of pecuniary condemnations pronounced by foreign courts, which was highlighted in France by the famous Fountaine Pajot decision, has different faces: as witnessed by recent decisions handed out by the French Cour de cassation on this matter, this control may concern the amount of damages, as in the Fountaine Pajot case, as well as the interests of a loan or the amount of a procedural indemnity granted by a foreign court. Although the reason for this control, which aims at ensuring the conformity of the foreign decision with the forum’s international substantive public policy, is clear, this clarity does not however extend, in recent case law, either to the exact perimeter of the control or to the criteria upon which it shall be based.

This article therefore seeks to instill clarity in this realm, by insisting especially on a double necessity: on the one hand, avoiding that this control degenerates in a review as to the substance of the foreign decision, and on the other hand, resorting to criteria specific to each hypothesis and reflecting essential principles of the lex fori on the issue at stake.

In the second article, Georgette Salamé (PhD Paris 1 Panthéon-Sorbonne, Lecturer at Saint Joseph University, Beyrouth) and Guillaume Kessler (Associate Professor, University of Savoie) discuss French law on international relocation of children in the context of parental separation, in the light of comparative law models (Séparation parentale et déménagement international de l’enfant).

The increased mobility of individuals combined with the frequency of divorce/separation cases has made the relocation of children a recurrent issue both in France and abroad and one that often triggers litigation. French law does not provide for specific rules that are tailored to address this matter. Therefore, the courts have settled relocation disputes using the general rules that govern child custody. This paper considers French law in the light of comparative law models. Whilst all legal systems claim to achieve the child’s best interest, some have addressed relocation by setting a general presumption (in favor of or against the move) whereas others have opted for a case-by-case approach. French law comes within the second category, which appears to have been the preferred choice of many Western States.

Beyond underlining this general trend to favor a settlement sought in concreto, a comparative law analysis highlights the positive outcomes that certain more sophisticated mechanisms elected by foreign laws can achieve and suggests adjustments to the French relocation settlement mechanisms. It also emphasizes the increasing importance of the parent-child relationship in (re)defining the family and sheds light on mechanisms that can fine tune and improve its protection in the context of the child’s relocation.

On another note, the comparative law analysis calls for a reassessment of the legal means that purport to secure effective outcomes for relocation in the globalization era. The paper thus examines both preventive and deterrence policies as well as policies that rely on mediation to redefine the aftermath of separation. While French law is familiar with such approaches, comparative law suggests reshaping certain strategies by developing or eventually reconsidering their relevance in the context of the child’s international relocation.

 The full table of contents is available here.

Marion is law professor at Artois University (France)

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