Part 1 of this paper deals with the Conflicts of Jurisdiction that are present in many cases.
The direct jurisdiction of French courts:
The independence of jurisdiction and legislative power This issue was dealt with during the C. Case on December 16, 1992, 1st Civil.
Principle relative: the interdependence of the conflicts of jurisdiction and the conflict of the laws that are in practice.
The influence of the conflicts of jurisdiction on the issue of the conflict of laws: the determination of jurisdiction logically precedes that of the laws applicable that are applicable to the case. The determination of the applicable substantive law varies with the perspective that the competent judge takes. Each State has its own system to deal with the conflict of laws.
Some influence on the legislative competence of jurisdiction: the judge has, in practice, a holistic approach to the problem and tends to assume jurisdiction or not according to the law that is applicable to the case.
The competence of international law
- Territorial jurisdiction i.e. ratione loci(Latin because of the place involved)
- Subject matter jurisdiction i.e. ratione materiae
The international jurisdiction is a shared competence
According to Article 92 of the NCPC:
The ordinary rules of French courts
General principle of jurisdiction of French courts that dealt with the disputes between foreigners in the nineteenth century:
- Latin maxim "actor sequitur forum rei" means the jurisdiction is the domicile of the defendant.
- Article 13 former CPC admission procedure at home (not admitted to the foreign residence in France is not able to enter a French court)
Progressive abandonment of this principle was in the 1948 and 1962 cases of Patino and Scheffel.
The criteria for international jurisdiction in French courts
A. The solution:
In the October 19, 1959 case that dealt with Pelassa, the extension of the international rules of internal territorial NCPC qualified that a competent court could be one that is in France if the defendant is domiciled in France.
Ordinary rules of jurisdiction are based on a criterion of localization (when concerned with the defendant's domicile)
Characteristics of these rules:
- Apply to all litigants: more discrimination based on nationality of the parties
-Unilateral rules: only define the exclusive jurisdiction of French courts(the principle of the sovereignty states that a French judge cannot grant jurisdiction to a court that is not French)
B. Exceptions to the principle
1. Succession law
Internal territorial jurisdiction:
-According to Article 45 of the NCPC. The power goes to the court in whose jurisdiction the case lies is
- section 720 of the Civil Code can be determined by the domicile of the deceased.
When this is implemented in an international context, the jurisdiction lies in the French courts if the deceased's domicile is in France.
- For a movable estate: jurisdiction of the court of the last domicile of the deceased
- For Estate properties: the courts where the location of the property
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