Revue Critique de Droit International Privé – Issue 3 of 2022

The new issue of the Revue Critique de Droit International Privé (3/2022) is out.

It contains three articles relating to the French project of PIL codification (of which readers of the blog are well informed, see here and here), as well as numerous case notes.

The editorial by Horatia Muir Watt (Sciences Po Law School), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (De codice ferendo ?)

In the first article, Dominique Foussard (Avocat au Conseil d’Etat et à la Cour de cassation, Paris Bar), Marie-Laure Niboyet (University of Paris-Nanterre) and Cyril Nourissat (University of Lyon 3), all members of the working group on the (French) PIL codification, present the main results of the draft code under a methodological perspective (Réflexions méthodologiques sur le projet de code de droit international privé). 

On March 31, a draft code of private international law (of 207 articles) was submitted to the French Minister of Justice. It was drawn up by a working group, headed by President Jean-Pierre Ancel. The French Ministry of Justice has now decided to submit the draft code for public consultation. The editorial staff of the Revue critique has opened its columns to three members of this group, to supplement with methodological reflections the analysis of the main provisions of the draft which can already be found in the accompanying explanatory report. These reflections are based on four observations : large parts of the discipline are still governed by national law ; conversely, when it is attested, the growth of international conventions and European Union law reveals the need for national norms of reference or adaptation to facilitate their application ; many rules of positive law should be reformed or completed in an overall vision of the discipline, and not on a piecemeal basis, on the occasion of a special law ; the increase in the international movement of persons accentuates the need for practitioners to have a complete corpus for the exercise of their activities, both as litigators and as advisors. Based on these findings, the draft has endeavored to respond to three essential challenges, namely the synergy of the sources of the subject-matter, the predictability of the rules enacted and the satisfaction of the objectives of private international law.

In the second article, Stefan Leible (University of Bayreuth) and Felix M. Wilke (University of Bayreuth) analyse the French draft PIL code from a German perspective (Le Projet de code de Droit International Privé. Une vue d’Allemagne, soon available in English on Dalloz website). Some elements of this analysis have already been shared with the readers of this blog here.

From a German perspective, there is much in the French Draft Code of Private International Law (“Draft Code”) to be appreciated ; in part, one can even be envious. Not only is there still room for a national PIL codification, but it can also enhance legal clarity, even where it only refers to applicable EU regulations. It is user-friendly to combine rules on procedure with conflict-of-laws provisions in one instrument and sensible to devote one part of the Draft Code to general provisions. The rules of the Draft Code on the PIL of contractual and non-contractual obligations as well as on companies in particular by and large could serve as models for German legislation. Conversely, here and there, German PIL rules might provide some inspiration for (minor) adjustments of and additions to the Draft Code. Some of the proposed rules, however, seem less than ideal. To allow renvoi only where at least one of the parties so demands neither serves legal clarity nor always makes life easier for the judge. The rule on lois de police could cause or perpetuate misunderstandings about their legal nature. It is doubtful whether a provision on fraude à la loi is truly necessary. To keep nationality as a connecting factor for jurisdiction can be considered particularly exorbitant. Yet all of this should not detract from the impressive and thought-provoking achievement that is the Draft Code.

In the third article, Paul Lagarde brings his extensive transnational experience and expertise to develop a challenging analysis of the draft PIL code (Quelques remarques sur le projet de codification du droit international privé français).

At a time when private international law in force in France comprises, for the most part, European law, whether it be European Union Regulations or the case law of the European Court of justice and sometimes indeed the European Court of Human Rights, the notion that French private international law should be codified independently of these other sources is both a source of astonishment and the cause for regret for the lost opportunity of a systemization of European conflicts of laws.This criticism is of particular relevance, moreover, in respect of what is known in continental legal terms as the general part of our discipline, such as the provisions on the duties of the court with regard to foreign law or the sanction applicable to various abusive strategies (playing the system or “fraude à la loi”). Furthermore, independently of any value judgment on the proposed texts, they are likely to be difficult to handle for the very non-specialists for whose benefit the project was intended.

More information is available here.