The enrichment of the sources of law with the recognition of the direct application of the New York Convention on the Rights of the Child in 2005 was marked by the clarification of certain solutions to conflict of laws. In particular, the status of foreign law seems, after much hesitation, to be finally determined by the Court of Cassation. The legislature has shown itself to be discreet; it tried, once again, to reform procedures for international adoption (L. No. 2005-744 of 4 July. 2005) but aggravated the existing complexity with the creation of the French Agency for adoption. The reform of the law of descent (Ord. No. 2005-759 of 4 July. 2005), removes the distinction between natural and legitimate affiliations. It slightly affects the rules of private international law and, anecdotally moves the conflict of laws on divorce from Article 310 to Article 309 of the Civil Code.
Regarding conflicts of jurisdiction, the year 2005 was marked mainly by the rise of communitarization of the international law. Two important documents came into effect, EC Regulation No. 2201/2003 of 27 November 2003, and the EC Regulation No 805/2004 of 21 April 2004 on European Enforcement. Other related texts give rise to difficulties of interpretation: litigation concerning the Brussels Convention is considered and the settlement ‘insolvency’ continues to raise the question. New rules are the subject of family applications. The rules of common law are relegated to the background, although one should note that the revival of a head of original jurisdiction was founded on a desire to avoid a miscarriage of justice.
Two judgments on the same day by both Houses of the Court of Cassation, clarify the status of foreign law before the trial judge. Prepared identically, they marked the end of the disagreement that existed in the litigation rights available between the first Civil Division and the Commercial Division.
- For the first Civil Division, the trial judge must find foreign law jurisdiction and establish its content, since it applied the conflict rule designating it. It was therefore sufficient that either party invoked foreign law, even without bringing the contents (Cass 1st civ., September 18, 2002). For its part, the Commercial Division did not prescribe the judge to find the content of foreign law if one party presented evidence or argued that the foreign law led to a result different from that which would have been from the application of French law (Cass com., November 13, 2003).
This divergence of jurisprudence was criticized. The interests at stake are similar, a disagreement in the Supreme Court was not justified and could be detrimental to practitioners and litigants. It is in the interest of the two judgments to unify jurisprudence.
- The drafting shows that the Commercial Chamber (Cass com., June 28, 2005) ranks under the banner of the First Civil Chamber (Cass 1st civ., June 28, 2005). Now, in positive law, "it is for the French judge who recognizes applicable foreign law, to seek, either automatically or at the request of a party invoking the content, with the assistance of the parties and personally if necessary, and give the solution a contentious issue in accordance with positive law abroad. "
Tags: First Civil Chamber, Court of Cassation, New York Convention on the Rights of the Child
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