This post, written by Pascal de Vareilles Sommières, who is a Professor at the University of Paris 1 Panthéon-Sorbonne, is the seventh in a series concerning the proposed codification of French Private International Law. Previous posts relating to the French Draft Code addressed the issues of renvoi, foreign law, the recognition of marriages, companies and parentage. A German perspective on the draft was also offered here.
Article 15 is the first provision in the title II of the French Project of Code of Private International Law (the Code project), on “Jurisdiction of courts”. It reads as follows:
Unless provided otherwise in this code, jurisdiction of French courts results from the rules on venue in domestic procedural law, which are extended to international matter – subject to their adjustment as it may be required for that matter –, especially the rule on venue based on the domicile or on the habitual residence of the defendant.
Overview of Article 15
Under Article 15, legal bases for jurisdiction of French courts over cross-border disputes are basically to be found in the French rules on venue (place of the lawsuit) as they apply in domestic proceedings, except if a specific rule on jurisdiction has been codified and applies to the case. A striking feature of this rule is that it does not address the jurisdictional issue by itself, but by reference to other rules that were made for domestic litigation. It has been coined as a default rule – or a “principle” in the words of the Report to the Minister of Justice on the project of Code of Private International Law (the Report), recalling (p. 15) that it comes from a former ruling by the Cour de cassation (see the Report, p. 15 at footnote 5, referring to Cass. Civ. 19 October 1959 Pelassa, and Cass. Civ. 30 October 1962 Scheffel). As a default rule, the rule applies in any particular case with the proviso that the case is not covered by a specific rule on jurisdiction within the Code project. As such, it has the importance of a general principle: exceptions may exist, but they keep the status of exceptions, inspired by data specific to the category for which they are provided, and applying only to cases falling in that category.
One particular jurisdiction basis for French courts that draws on this rule is where the domicile or the habitual residence of the defendant is in France: Article 15 expressly mentions the extension of the corresponding venue rule (French Code of civil procedure, Article 42) to disputes arising in an international setting. Such a jurisdiction rule (well known in Latin: Actor sequitur forum rei), is classical in comparative private international law and consequently gained its status as a principle in EU jurisdiction rules in civil and commercial matters (Article 4 of the Brussels I bis Regulation). Needless to say, Actor sequitur… is not the only rule on venue in the French Code of civil procedure, and, under Article 15 of the Code project, others shall extend to international litigation before French courts – at least, each time they are not ruled out by a specific provision on jurisdiction that the Code project enacts.
In some cases, the Code project sets up straightforward specific rules on jurisdiction for international litigation before French courts, as in the field of personal status, where Article 34 provides for jurisdiction of French courts if the domicile or habitual residence of the person whose status is at stake is located in France at the time when the dispute is introduced before the court.
Rules on jurisdiction in the field of contractual and non-contractual obligations (Articles 88 and 91) are good examples of less straightforward jurisdiction rules laid down by the Code project. On the one hand, they draw on rules of venue applying to domestic litigation (French Code of civil procedure, Article 46) and, to that extent, they belong to these venue rules adjusted to international litigation mentioned by Article 15 (see the Report, p. 16). On the other hand, they appear within the Code project as specific legal rules (Article 88 §2; Article 91 §2), proper to international disputes. Under these provisions, in contractual matters, legal bases for jurisdiction of French courts are the place of delivery of the goods and the place of provision of the service; in extra-contractual matters, legal bases for jurisdiction of French courts are the place of the harmful event and the place where the damage is suffered. Of course, in both fields, French rules on jurisdiction apply subject to international convention or EU law (Article 88 §1; Article 91 §1); and we all know that EU law in civil and commercial matters does not rule out the rules on jurisdiction of Member State courts, if the defendant is domiciled in a country which is not a EU Member State (Article 6 of the Brussels I bis Regulation).
General Assessment of Article 15
Is the rule laid down by the Code project in Article 15 a satisfactory one? We must confess our frowning on reading it. The reason is that, in our opinion, the reference to rules on venue in domestic disputes, as default rules on jurisdiction issues in international litigation, made by Article 15 of the Code project, falls beside the point.
The mere fact for the Report to emphasize that the general rule provided by Article 15 belongs to those provisions, in the Code project, intending to consolidate advances previously gained (“acquis”), or to maintain traditional solutions in spite of scholarly criticism (p. 15), remains unsatisfactory to us.
A first reason for scepticism is that the extension of domestic rules on venue to international litigation, when it comes to determining legal bases of jurisdiction of a country’s courts, is enshrined in the Code project, even though this extension principle is said to fall under criticism of commentators: one expects a response to that criticism by the drafters of the Code project prior to have it set aside. A second reason is that it is awkward for the Code project drafters to set up, as a default rule or principle on jurisdiction of courts in international disputes, a mere reference to rules on venue made for domestic disputes, especially when it is simultaneously admitted that “no one today denies the specificity” of the nature of international jurisdiction of a country’s courts and of the rules laid down to fix it, compared to domestic venue (see the Report, p. 15).
Everyone interested in EU law on jurisdiction in civil and commercial matters knows the huge amount of dissatisfaction left in practice by criteria like the place of performance of obligation, the place of delivery of goods, and the place of provision of service, as grounds for jurisdiction in the field of contracts. The same dissatisfaction stems from criteria like the place of the harmful event and the place of damages, used for the same purpose in the field of torts. Having them endorsed by French rules on international litigation just because they are used as venue grounds in domestic proceedings is at least questionable, as is questionable the assertion by the Report that “the extension principle [of domestic venue provisions] has the advantage that it provides for a connecting factor easy to implement each time one cannot find in the Code project a specific rule for the relevant matter” (p. 15). The sentence would be more correct saying “easy to find” rather than “easy to implement”. But the mere fact, for a criterium used by a provision addressing a given issue, to be easy to find does not make this criterium reasonable and reliable when drafting another provision on a different issue.
So, if the point is to avail of default rules proper to answer the question whether or not a particular case falls within the jurisdiction of French courts (so that they may handle the jurisdiction issue even though there is no jurisdiction rule specific to the matter to which that case belongs), it is suggested here that a good approach would have been to listen to scholarly criticism and to assess counterproposals. Unfortunately, space lacks – due to the format of this blog – to develop here on this issue. This quick overview will only express our disappointment that the only other idea mentioned in the Report (and actually used in the Code project), for assertion of jurisdiction by French court where no ground specific to the matter can be found, is about resorting to the “natural judge theory” (doctrine du juge naturel) and consequently sticking to the French citizenship as a default basis for jurisdiction of French courts (see Code project, art. 17, and the Report, p. 16 to 18).
A Few Suggestions
Beside the well-known usual criticism under which citizenship/nationality of one of the litigants falls as a ground of jurisdiction in civil and commercial matters, another remark finds its way here: why did the Report and the Code project give short shrift to other possible solutions?
Extension of Brussels I reg. recast (2012) rules on jurisdiction, especially where the defendant is not domiciled in a EU Member State, could have been explored: there are pros and cons.
How about the forum legis jurisdiction? Comparative private international law shows a tendency for this ground of jurisdiction, formerly unfashionable, to come back to the forefront. EU jurisdiction law shows that providing for jurisdiction of the courts of a given country over a case, where the law of that country is applicable to that case, may well prove satisfactory (Articles 5 to 7 of Regulation No 650/2012 in matters of succession). An article recently published depicted quite clearly the influence, before common law courts, of the idea that, for a court, applicability of the law in force in its forum is a relevant basis for the jurisdiction of that court (R. Garnett, “Determining the Appropriate Forum by the Applicable Law”, [ICLQ vol 71, July 2022 pp 589–626]). Even in France, voices make the case for a better relation between forum and jus in private international law (see, among others, S. Corneloup, « Les liens entre forum et ius : réflexions sur quelques tendances en droit international privé contemporain », in Mélanges B. Ancel, LGDJ/IPROLEX, 2018, p. 461-475). This tendency probably finds its rationale in this idea that where a country claims applicability of its law through its choice-of-law rule, the best way to increase efficiency of this claim is to support it by an additional claim, made by that country through its choice-of-court rules, that its courts have jurisdiction. This jurisdiction should certainly not be exclusive of jurisdiction of the courts of any other country (at least in principle), but making it available to the parties is good for them, in terms of predictability, and good for the country whose law claims to be applicable, in terms of authoritativeness of its law.
Whether this point is decisive is open to debate, but one may expect from a lawmaker that it addresses such an issue when codifying its private international law.
Une liaison dangereuse: In my opinion, the application of domestic rules of jurisdiction mutatis mutandis for the determination of international jurisdiction poses precisely the risk of being considered “easy to implement”. The same connecting factor or forum of jurisdiction cannot be interpreted or implemented in the same way depending on whether the case is domestic or international. In the first case, the forum of jurisdiction does not pose a risk of defencelessness or non liquet, since there will always be a competent court within the territory to hear the merits. In the international sphere, the fora of international jurisdiction, especially when they are found in State rules, must be interpreted broadly to avoid the defendant’s defencelessness, since there is no guarantee that the court of another State will hear the case. Moreover, the system of international jurisdiction requires corrective mechanisms, such as forum necessitatis, which are specific to the cross-border dimension.
I agree with your point on the differences of stakes between, on the one hand, jurisdiction of national courts in an international dispute and, on the other hand, venue in a domestic context. With respect to the concern you expressed, I must say that the French draft Code does include a provision which intends to prevent a possible denial of justice in cases where the lack of jurisdiction of French courts would amount to deprive the claimant from the right of being heared by any court (see Draft Code, Article 18, which is an exception to the principle enshrined in Article 15).