This is the first in a series of posts on the French draft code of private international law of March 2022.
The draft code of private international law contains one single provision on renvoi.
The Proposed Rule
Article 8 of the draft code reads:
Unless provided otherwise in this code, the designation of foreign law includes its rules of private international law. However, French courts and authorities have the obligation to apply those rules only if one party requests it.
The explanatory report explains that the working group debated whether to “maintain” renvoi. The doubts of the working group were based on “comparative law” and the facts that the Hague conventions typically exclude renvoi. Nevertheless, the report explains, it was decided to maintain renvoi, because the Cour de cassation has recently applied it, and because the doctrine has benefits when it leads to the application of a law which is easier to apply for French courts (the explanatory report then gives the example of art 34 of the Succession Regulation).
Assessment
According to the explanatory report, the working group considered that the purpose of its work was to improve accessibility and intelligibility of the law. Article 8 is not fully satisfactory in this respect.
Article 8 suggests that French courts should always apply foreign choice of law rules. It does not explain whether this should only be the case where the foreign choice of law rule refers to the law of the forum, and, when it does not, whether the law of the third state designated by the foreign choice of law rule should accept renvoi. In other words, Article 8 does not distinguish between first degree renvoi and second degree renvoi, and does not clarify whether whether second degree is allowed even if it is third or fourth degree renvoi. In fact, a literary interpretation of Article 8 could lead to the conclusion that the provision introduces the English foreign court theory where foreign choice of law rules are applicable without any further requirement.
The explanatory report suggests that the working group conducted a comparative study which revealed that renvoi is typically excluded. It is true that some modern PIL legislations have excluded it, such as Article 15 of the Belgian Code of Private International Law. Yet, many other legislations in the civil law world allow renvoi broadly. If the working group was going to maintain renvoi, maybe it would have been useful to take a look at these other legislations and see with which precision they regulate the issue.
To only take one example, the working group could have looked at the Italian 1995 Private International Law Act, which allows renvoi, and defines its regime much more precisely.
Article 13 Renvoi
1 Whenever reference is made to a foreign law in the following articles, account shall be taken of the renvoi made by foreign private international law to the law in force in another State if:
a) renvoi is accepted under the law of that State.
b) renvoi is made to Italian law.
2 Paragraph 1 shall not apply: a) to those cases in which the provisions of this law make the foreign law applicable according to the choice of law made by the parties concerned; b) with respect to the statutory form of acts; c) as related to the provisions of Chapter XI of this Title.
3 In the cases referred to in Articles 33, 34 and 35, account shall be taken of the renvoi only if the latter refers to a law allowing filiation to be established.
4 Where this law makes an international convention applicable in any event, the solution adopted in the convention in matters of renvoi shall always apply.
Article 34 of the Succession Regulation is also much more detailed than the draft provision of the French code. Whether it was the perfect example to justify the adoption of first degree renvoi is unclear, however, since Article 34 does not require that the law of a third state refers back to the law of the forum, but to the law of another Member State, and that it will not always be easier for a French court to apply the law of another Member State (say Finland) than the law of a third state (say Switzerland).
Dear Gilles, I fully agree with your analysis. German and Austrian law also support renvoi, see Art 5 EGBGB and § 5 IPRG. Perhaps a distinction should be made between conflict of laws conventions, which typically exclude renvoi because it would frustrate the harmonisation purpose, and national conflict of laws rules, which typically allow it (see also Art. 13(4) of the Italian Legge). The French draft being a national rule, it is quite natural that it allows renvoi. Subjecting this to the parties’ pleadings is certainly not helpful.