Developments in PIL Journals Scholarship

Journal du droit international: Issue 3 of 2022

The third issue of the Journal du droit international for 2022 was released in July. It contains two articles and several case notes relating to private international law issues.

In the first article, Caroline Kleiner (University of Paris Cité) discusses the private international law dimension of the sanctions against Russia (L‘application des « sanctions économiques » adoptées par l’Union européenne contre la Russie à la suite de l’invasion de l’Ukraine : éléments de droit international privé).

The English abstract reads:

The adoption of sanctions by the European Union is the main tool available to EU member states to react politically, legally and economically to Russia’s aggression against Ukraine. On an unprecedented scale, the sanctions initiated in 2014 in EU regulations following the annexation of Crimea and reinforced from 23 February 2022 are very diverse. On the one hand, restrictions of different intensity have been imposed on trade and financial matters. On the other hand, measures to freeze funds and economic resources are aimed at “target” persons and entities. These provisions, which are mandatory throughout the European Union and in respect of any economic activity carried out in whole or in part therein and in respect of any person who is a national of a Member State or who is incorporated under the law of a Member State, are being applied, however, according to a distinct mechanism. Sanctions-rule interfere with contracts as mandatory rules (lois de police), while the application of sanctions-decision is based on the method of recognition.

In the second article, Hélène Gaudemet-Tallon offers some thoughts on the recent draft code of private international law (Quelques réflexions sur le projet de Code français de droit international privé du 31 mars 2022).

The English abstract reads:

On 31 March 2022, a draft French Code of Private International Law was submitted to the Minister of Justice. This text was prepared by a group working under the chairmanship of Jean-Pierre Ancel (honorary president of the first civil chamber of the Court of Cassation). The project goes beyond what was requested in 2018 by Ms. Belloubet, Minister of Justice. Far from being a simple consolidation of the existing law, throughout its 207 articles, it proposes some new solutions and precise several acquired solutions. This article, after recalling the genesis of the project, shows the scope of the field covered, the plan adopted to deal with all issues of private international law, general theory of both conflicts of laws and conflicts of jurisdictions (jurisdiction and recognition and enforcement), special applications, proceedings, provisional measures, etc. However, the draft does not deal with international arbitration or jurisdictional immunities. Particularly interesting because the difficulty was high is the solution adopted to ensure the articulation between the French code and European law or international conventions : the primacy of European and conventional law is generally affirmed; then various articles contain numerous references to a particular European regulation or international convention. Sometimes the project extends the application of a European regulation to issues excluded by a regulation.

Without studying all the provisions of the project, this study draws the attention of the reader to particularly striking innovations : careful adoption of the method of recognition ; rejection of the distinction between available and unavailable rights and obligation for the judge to always apply the conflict rule ; full recognition of all foreign judgments without distinguishing according to their nature ; solutions proposed for divorce by private agreement ; new rules on filiation (rejection of the connection to the national law of the mother), medically assisted procreation with third-party donor, surrogacy, adoption. The important powers granted to the judge and the use of several flexible concepts should also be noticed (for example, procedural loyalty).

This study is intended to describe the project and to assess the importance of its future.

The table of contents of the issue can be accessed here.

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