Journal du droit international: Issue 2 of 2024
The second 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. It is also worth mentionning the new edition of the column dedicated to judicial cooperation in civil, criminal and arbitral matters authored by Kamalia Mehtiyeva (University Paris-Est Créteil), focusing inter alia on the effectiveness of judicial cooperation in wartime.
In the first article, Gustavo Cerqueira (University of Nice) discusses the voluntary internationalisation of contracts based on choice of law, in the light of international uniform substantive law (Un impensé de l’internationalisation volontaire du contrat par le choix de loi: du jeu des conventions de droit matériel uniforme).
European Private International Law grants parties to a purely domestic contract the freedom to choose a foreign law to govern their contractual relationship. Although opting for a foreign law in a domestic contract may seem counterintuitive, practice shows this freedom can be used effectively. This opens new perspectives in the field of conflict of laws, including the potential application of uniform substantive law conventions aimed at international transactions in force in the country of the chosen law. This alternative is all the more interesting given that the choice of foreign moves an otherwise domestic transaction beyond the boundaries of its legal system, connecting it to the law of different jurisdiction. In doing so, the contract becomes part of the international legal canvas, and thereby benefits from the same treatment afforded to international contracts. This proposition, which involves looking at the applicable law in context, emerges as an unexplored aspect of European Private International Law of Contracts. This should indeed be approached as a proposition, as we are addressing a potential contribution to Article 3, paragraphs 3 and 4 of the Rome I Regulation and the 1980 Rome Convention. As such, several points need to be clarified to support this proposition.
In a second article, Pierre Fini (University of Paris-Saclay) analyses the provisions of the draft French Code of Private International Law relating to trusts from a comparative perspective (Les dispositions sur le trust du projet de Code de droit international privé à la lumière de la convention de La Haye du 1er juillet 1985).
The provisions on trusts in the French draft Code of international private law in the light are purported to define the trust, establish its connecting factors, precise the scope of its law and organise its recognition Although these provisions represent an (r)evolution for French international private law, they are moderately disappointing when compared to the Hague Convention of July 1st 1985 and English law, and not only from a quantitative perspective. The draft is sometimes imprecise, sometimes silent, and retains (and rightly so) for other laws their vocation of application, which will result in pure and simple priority of application in the event of incompatibility with the law of the trust. The draft, while useful, is not a panacea and will need to be improved, interpreted and articulated with international and domestic law.
The table of contents of the issue can be accessed here.