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Foreign Law under the French Draft PIL Code (updated)

This is the second of a series of posts on the French draft code of private international law of March 2022. The previous post in the series dealt with the issue of renvoi.


The draft code of private international law proposes to reform significantly the regime of choice of law rules before French courts and includes some interesting suggestions with respect to proof of foreign law.

Mandatory Application of Choice of law rules

Article 9, para. 1, of the draft code would establish an obligation for French courts to apply the applicable law. In other words, choice of law rules would become mandatory for courts.

Art. 9, para. 1: “L’application du droit internationalement désigné est impérative pour le juge.”

This would be a significant departure from the current regime. Since 1999, French courts have had the obligation to apply ex officio choice of law rules only in matters where the parties may not dispose of their rights (e.g. parenthood). In contrast, in matters where the parties may dispose of their rights (e.g. an international sale of goods), the application of choice of law rules was not mandatory for courts, unless one of the parties would raise their application.

The explanatory report makes clear that the drafters wanted to discard this regime and abandon the distinction based on whether the parties may dispose of their rights. It is explained that the goal is to make the law clearer and more coherent. The reference to coherence is likely a reference to the general principle that courts ought to apply applicable rules.

Readers might recall that the French Supreme Court for private and criminal matters (Cour de cassation) has initiated an evolution by ruling that it would consider certain EU choice of law rules mandatory (see the reports on this blog here and here). The precedent would obviously lose significance, as all choice of law rules would become mandatory.

Contrary Agreement of the Parties

However, the drafters propose to maintain the rule according to which the parties may agree to avoid the application of foreign law and apply French law instead in matters where they may dispose of their rights. The Cour de cassation has long ruled that such agreement could be reached implicitly by arguing the case under French law only.

In practice, such “agreement” was typically reached by parties (and counsels) unaware of the potential application of foreign law. This was more of a waiver mechanism. The drafters propose to strengthen the conditions for finding such agreement. Article 9, para. 2, provides that the agreement could either be express, or result from written pleadings which would be “concurring and non equivocal.” The explanatory report clarifies that, in this context, “non equivocal” would mean that it should be clear from the pleadings that the parties were aware that the case was international and that foreign law might apply. If the court is not satisfied that the parties were so aware, Article 9 para. 4 further provides that the court should raise the applicability of foreign law and, if necessary, apply it ex officio.

Finally, Article 9, para. 3, provides that such an agreement is valid in divorce cases if it is express. The rationale for this exception is to ensure compliance with Article 7 of the Rome III Regulation.

Art. 9:

(…)

Lorsque les parties ont la libre disposition de leurs droits, elles peuvent, par un accord procédural, soumettre leur litige au droit français. Cet accord est exprès ou résulte d’écritures concordantes et non-équivoques.

En matière de divorce, l’accord procédural doit être exprès.

Lorsque les parties s’abstiennent de s’expliquer sur le droit applicable, le juge les y invite et applique, au besoin d’office, la règle française de conflit de lois.

Proof of Foreign law

Article 14 of the draft code also attempts to incentivise French courts to change the current judicial practice with respect to proof of foreign law.

Article 14 first establishes the burden of establishing the content of foreign law lies in principle with courts. It insists, however, that the assistance of the parties is expected in this respect.

It would indeed be unrealistic to expect that French courts would suddenly become able to conduct extensive research in foreign law.They do not, and thus likely will not in the future. The current judicial practice is to rely on litigants and the evidence that they can adduce. It is admissible for the parties to produce primary materials of foreign law (statutes, cases), or to produce opinions of private experts that they have hired (certificat de coutume).

A number of French scholars have argued that relying on private experts is highly unsatisfactory. The reason why is that such experts will never appear in court and be cross examined on their expert reports, for the simple reason that French courts do not hear anybody (parties, witnesses or experts) in civil and commercial cases. Experts have no serious incentive to faithfully report on the content of foreign law.

Article 14, para. 4, attempts to address the issue by providing that French courts could organise a confrontation of the experts, or invite the parties to do so. The concept of “confrontation” of the experts is not immediately clear, but may be understood as an interrogation of the experts, which could thus be conducted either by the court or by the parties.

S’il l’estime nécessaire, le juge organise une confrontation entre les auteurs des avis ou invite les parties à y procéder elles-mêmes.

On the other hand, French courts routinely appoint judicial experts to report to the court on questions of fact. Such experts conduct investigations in the presence of the parties, hear them (and their private expert) and eventually write an independent expert report. The reason why French courts do not appoint judicial expert to establish the content of foreign law is unclear.

Article 14, para. 2, provides that the content of foreign law can be established by all means, including by opinions produced by the parties or by way of expertise. In a French context, the reference to “expertise” would very likely be understood as a reference to judicial expertise, i.e. court appointed experts. The provision confirms that appointing a judicial expert would be admissible, but does not establish any hierarchy between private and court appointed experts.

Interestingly, Article 14 provides that the relevant expert (implicitly, this part of the provision probably only refers to court appointed experts) could be a “French or foreign specialised institution”. This suggests that French courts could appoint French or foreign institutes to deliver an expert report on the content of foreign law. This would be quite a remarkable development, but most welcome.

La preuve en est rapportée par tous moyens, au besoin par avis produit par les parties ou par expertise, le cas échéant en faisant appel à une institution française ou étrangère spécialisée.

Finally, Article 14, para. 3, provides that French courts may resort to international and European judicial cooperation. Working with foreign academic institutions seems much more promising to me.

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