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Since French private international law has to date not been codified, the conflict of law rules are to be found in various Codes (Civil Code, Commercial Code, Consumer Code), but essentially derive from case law. Some appear in Community instruments of secondary legislation.
A significant number of conflict of law rules have come from multilateral international conventions to which France is party. Most of these conventions have been developed within the framework of the Hague Conference on Private International Law.
The bilateral conventions that are used most frequently by French courts cover personal status. Of particular note are:
According to case law, the judge dealing with the case must determine whether the law to which the case refers is available or unavailable; judges must assess this according to their own law.
Judges are obliged to apply their own conflict rules only when the law at issue is an unavailable law (essentially in cases relating to personal status: capacity, substantive validity of a marriage, divorce, etc.). When it is an available law, the parties must invoke application of the foreign law that is normally applicable.
In French private international law, renvoi is defined as a negative conflict of connecting factors: French conflict rules designate a foreign law as applicable, but the choice of law rules of the country to whose law the case is referred back designate in their turn French law (first-degree renvoi) or another State's law (second-degree renvoi).
This mechanism, which is difficult to reconcile with freedom of choice, has always been residual, being notably excluded in contractual matters and matrimonial causes. Even in personal status cases, it is currently in sharp decline.
Where a connecting factor varies in time and/or space, is the applicable law decided in relation to the former connecting factor or the new connecting factor?
In some cases, the law provides the answer. Otherwise, it is found in case law, in a way that varies according to the conflict rules in question, but with a tendency to take mobility into account, the connecting factor being often assessed on the day when the action is brought.
The conflict rules that normally apply are set aside in two types of situation:
The mechanism of the international public policy exception:
The designated foreign law is excluded by the judge if its application would lead to a situation contrary to public policy, understood as "the principles of universal justice, considered by public opinion as having absolute value. The judge applies the rules of French law instead of those of the law he has decided to exclude.
Consideration of public policy, which comes fully into play where the case would lead to the creation of a right in French territory, can be more flexible if it is only a question of giving effect in France to rights lawfully acquired abroad.
The theory of mandatory rules:
Mandatory rules may be defined as "the laws" that must be observed for the protection of the country's political social or economic order".
These laws are directly applicable, without the mediation of conflict of law rules. In some cases, the law itself so provides. If not, the judge must identify the law immediately applicable: French or European competition law is notably considered as such, as are the provisions of French rules on employment contracts relating to health and safety, working hours and methods, rules for protecting and assisting minors residing in France, etc.). The judge is obliged to apply French mandatory rules on his own initiative. Applying foreign mandatory laws is optional, unless otherwise stated in an international convention (for instance, Article 7(1) of the Rome Convention).
Traditionally, it was the responsibility of the party requesting application of a foreign law to establish its content, and more particularly to demonstrate how application of French law would not lead to an equivalent result.
Following a relatively recent precedent (1998), it is now accepted that the judge must research the content of the foreign law when he himself declares it applicable - this is obligatory when the case concerns unavailable laws.
Proof of the foreign law's content can be provided via the means set out in the new Code of Civil Procedure (expert opinion, parties appearing in court, request for evidence from a third party, etc.).
It is also standard practice to have recourse to the certificat de coutume. This is a document drawn up in French either by a foreign State's consulate or embassy in France or by a foreign or French lawyer specialising in the area of law concerned.
The contract may be governed by the law chosen by the parties. In the absence of an explicit choice on their part, the judge must determine the applicable law in accordance with the general spirit of the agreement and the circumstances of the case.
In addition, specific conflict of law rules stem from a number of international agreements to which France is party:
The law applicable to the contract traditionally determines:
The Rome II Community Regulation will henceforth cover a large part of this area. Beyond the subjective matter and geographic scope of this Regulation, the French system conforms to the general rule whereby the applicable law is that of the place of commission, but with a number of specific rules in accordance with case law or the international agreements to which France is party, adapted to specific situations:
The parent-child relationship is established by the mother's personal law on the day of the child's birth, or by the child's personal law if the mother is unknown.
The effects of the parent-child relationship are governed by the child's national law or by its parents' law of the consequences of marriage.
However, these rules are superseded by international conventional law in cases involving States that are parties to conventions whose substantive scope covers the cases concerned: cases relating to parental responsibility, where the children concerned are habitually resident in France or another State party to the Hague Convention of 1961; unlawful removal of children between States party to the Hague Convention of 25 October 1980; cases relating to maintenance obligations under the Hague Convention of 2 October 1973.
The The conditions, like the effects, of adoption in case law are governed by the national law of the adoptive parent, while the conditions of consent or representation of the adopted child are governed by the national law of the child.
The substantive conditions of marriage (capacity, consent, etc.) come under the personal law of the spouses (Article 3 of the Civil Code). French nationals who marry abroad must comply with the substantive conditions of French law (Article 170 of the Civil Code). Where the future spouses are of different nationalities, the two relevant personal laws are applied distributively, with the stricter law in terms of impediments to marriage being applied.
The formal requirements (formalities to be completed, secular or religious marriage, etc.) are in principle subject to the law of the place of celebration.
The personal law of the spouses applies to the consequences of the marriage. Where the spouses are of different nationalities, the applicable law is that of their common domicile. Where there is no common domicile, the French courts will apply French law as the law of the court seised of the case.
This law covers in particular personal obligations deriving from the marriage (fidelity, assistance, cohabitation) and contracts between spouses, with the exception of donations of future assets between spouses, which come under the law of succession.
For an unmarried couple whose relationship is not legally formalised, substantive law considers the partners' various legal relationships as so many distinct relationships, each subject to the law that fits its nature (Paris Regional Court, 21/11/1983).
Professional opinion is divided on the law applicable to organised partnerships such as the Civil Solidarity Pact, with no specific case law to draw on. For some, this type of partnership comes under the law applicable to legal acts. For others, it comes under the law applicable to the interested parties' personal status. Others still prefer the creation of a sui generis connecting-factor category – the law of the institution. Finally, some hold that, at least for the Civil Solidarity Pact, French law should apply as mandatory rules.
According to Article 310 of the Civil Code: "Divorce and judicial separation are governed by French law:
The Court of Cassation has held that the criterion of French nationality or domicile in France must have been fulfilled on the day when the legal action was brought.
The law applicable to the divorce or judicial separation determines the grounds there for (fault, incompatibility, irretrievable breakdown of marriage, mutual consent, etc.) and the financial consequences of the divorce or legal separation (damages granted, compensatory payments or maintenance allowances between spouses).
Conflict of law rules currently applicable in France are drawn from Articles 4, 5 and 6 of the Hague Convention of 2 October 1973 on the law applicable to maintenance obligations, which designates the internal law of the habitual residence of the maintenance creditor. However, if the maintenance creditor cannot obtain maintenance under this law, the law of the common nationality of the maintenance creditor and the maintenance debtor will apply (Article 5) and, if necessary, the law of the court seised.
The designated law applies to financial relations between spouses (contribution to the costs of the marriage) and to maintenance obligations towards the couple's children. However, this law can face competition from the law applicable to divorce and judicial separation according to Article 8 of the aforementioned 1973 Hague Convention.
The applicable law is that chosen by the spouses if they made a marriage contract.
In the absence of an explicit choice, their tacit choice must be sought. Here, there is a presumption in favour of the law of the couple's first common domicile, understood to be the place in which they first settled for a significant period of time.
This system is also found in the Hague Convention of 14 March 1978, to which France is party. This Convention adds two subsidiary connecting factors, according to the parties' choice or their first common domicile: the spouses' common nationality or the law that is most closely linked to their situation.
The applicable law determines the mutability or immutability of the regime, categories of assets and the spouses' control of these, and the terms of management and liquidation of the regime.
Succession to immovable property is subject to the law of the place in which the property is situated. Succession to movable property is governed by the law of the deceased party's last domicile.
The law of succession governs all matters relating to devolvement, transfer and liquidation of the succession.
In cases of intestate succession, the law of succession determines the heirs due to inherit. However, the proof of relationship needed in order to receive an inheritance comes under personal status, not the law of succession.
In testate successions, two international instruments are applicable. These are the Hague Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions, and the Washington Convention of 28 October 1973 on a uniform law on the form of an international will.
The applicable law is that of the place in which the property, whether movable or immovable, is situated. The situation can be complex where movable property is transferred from one State to another. To resolve this conflict, case law states that account should be taken of the law of the place in which the movable property is situated when the action is brought.
Where the movable property is a means of transport (boat, aircraft, etc.), international contract law confers jurisdiction on the State of registration.
The applicable law defines the main or incidental property rights over the asset and specifies its owner's prerogatives. It also governs the means of acquiring property rights. In this context, in can be combined with the law governing the deed of transfer that creates the rights, in particular a deed of ownership transfer.
In general, the law applicable to an insolvency proceeding is that of the court in which the proceedings are initiated. The applicable law should thereafter be determined by referring to the issue of jurisdictional conflicts. Regulation No 1346/2000 of 29 May 2000 sets out conflict of law rules; in this case, the applicable law is said to be that of the Member State in which the place where proceedings are initiated is situated (Articles 4 and 28).
The law applicable to an insolvency proceeding may have to compete with the law of the place in which property is situated, notably with regard to contractual securities, privileges and legal mortgages relating to property situated abroad.Top
Last update: 04-12-2008