Journal du droit international: Issue 1 of 2024
The first issue of the Journal du droit international for 2024 has been released. It contains two articles and several case notes relating to private international law issues.
In the first article, Héloïse Meur (Paris VIII University) analyses new French provisions on PIL aspects of unfair commercial practices (Entre la lettre et l’esprit de la loi EGALIM 3, quel avenir pour le droit international privé du « petit » droit de la concurrence ?).
The English abstract reads:
For the first time, the French Lawmaker enacted provisions related to private international law aspects of unfair commercial practices law. Article 1 of the law of 30 March 2023 to strengthen the balance in commercial relations between suppliers and distributors, known as the “EGALIM 3” or “Descrozaille” law, states that the rules related to restrictive practices and price transparency apply “to any agreement between a supplier and a buyer relating to products or services marketed on French territory. These provisions are a matter of public policy. Any dispute relating to their application falls within the exclusive jurisdiction of the French courts, subject to compliance with European Union law and international treaties ratified or approved by France, and without prejudice to recourse to arbitration”. This provision would make it possible to fight the circumvention strategies of large retailers, which consist in setting up purchasing entities abroad and concluding choice of law and choice of forum clauses to avoid the application of the provisions of the French Commercial Code. However, by refusing to refer to traditional concepts of private international law such as the overriding method of mandatory provisions (“lois de police”), the French lawmaker leaves open the question of the impact of the amendments on positive private international law and further adds to the important legal uncertainty in this field of law. This paper proposes to analyse the causes of these omissions to hope to guarantee more legal certainty for international contracts in general and distribution contracts in particular, contracts initially targeted by unfair trading practices law.
In the second article, Alejandra Blanquet (Paris-Est Créteil University) examines the difficult coordination between kafalaand adoption in cross-border context following a Franco-Spanish comparative perspective (L’articulation entre kafala et adoption : le cas espagnol et ses enseignements pour le droit international privé français).
The English abstract reads:
The adoption of children with ‘personal prohibitive status’ is forbidden by way of law in Spain and France. It results in any gateway between kafala, and adoption being closed. However, the firmness of this statement must be qualified. Indeed, by retaining a soften approach of it some Spanish Audiencias provinciales have recently allowed certain kafalas to become adoptions. This new approach is based on a selective gateway opened to judicial kafalasconstituted in respect of makfouls abandonned in their home country. This kind of kafalas may therefore, in some cases, become adoptions. This mechanism does not mean that the statutory prohibition is repealed but confirms the extent to which its force may be subject to modulations in order to avoid the excessiveness in which its strict implementation may result in some cases. The selective gateway requires the best interest of the child to be assessed in concreto and invites the judge to analyse, and if necessary to relativise the effects of an international “flawed” adoption. Thus, the Spanish example shows that the discussion on the link between kafala and adoption is far from being over and offers new perspectives for analysing the question in both Spanish and French Law.
The table of contents of the issue can be accessed here.
