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Anachronism as Legislative Art: on the Projected French Codification of National PIL (or What Is Left of It)

Dominique Bureau (University of Paris II Panthéon Assas) and Horatia Muir Watt (Sciences Po Law school) have published earlier this week in La Semaine Juridique (édition générale) a critique of the desirability of codifying private international law at national level in a field dominated by EU and international norms (Codifier à contretemps… À propos d’un projet français de codification du droit international privé).

The English summary of the article reads:

After the failure of various initiatives towards national codification of private international law in France in the course the first part of the 20th century, a new project was commissioned recently by the ministry of justice and is now (very briefly) open to public comment. Curiously, then, the spectre of a national code has resurfaced once again in an entirely new context – that is, at a time when the majority of rules of the conflict of laws, jurisdiction and judgments currently in force in Member States have been unified by the European Union (largely successfully). Quite apart from any quality assessment of the various substantive provisions thus proposed in the draft text, some of which would no doubt be useful interstitially in the spaces still left to the competence of national authorities, and indeed beyond the symbolic signification of an inward-local turn in an area designed emblematically to respond to the transnational, the main flaw in this proposal is the erroneous nature of its own premises. There is a real discrepancy between the draft text and the very objectives it is designed to pursue : it is far from making the state of the law more manageable for the courts, as it claims to do. Indeed, in the epistemological terms of the French legal tradition, the very phenomenon of a national code suggests that it contains a complete set of legal tools for solving issues that arise in transnational litigation. However the proposal itself reminds its users that it is applicable by default, while leaving the frontiers of local law very unclear. Surprisingly, it has generated very little academic opposition, but even as the short parliamentary deadline approaches, it is still not too late to do nothing..

The journal and article can be accessed here.

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