CONFLICT OF LAWS RULES
The conflict of laws rules govern the determination of the law applicable to the legal question in dispute. The rules which will intervene are determined, in the international order, by the rules of private international law of the court or the arbitral tribunal seized of the dispute.
Misdemeanors and quasi-misdemeanors
It should first be remembered that the classification of “Misdemeanors and quasi-delicts” corresponds in the countries of Civil Code to what in the countries of Common Law are “Torts”, but that the two categories are far from being identical. The qualification is effectively made according to the law of the court seised, the lex fori .
With regard to legal facts giving rise to obligations, subject to the principle of territorial application of public order, the determination of the applicable law responds to the principle of the place of the offense.
According to art. 3 para. 1 of the Civil Code, the police and safety laws oblige all those who inhabit the territory ”.
Determination of the applicable law
The conflict of laws rule applicable in matters of obligatory facts is the application of the law of the place where the offense was committed, the Lex loci delicti
The place of the offense is the one where the event giving rise to liability, also qualified as a causal event, occurred but it could also be the place where the damage occurs.
Case law has designated the place where the damage was caused Civ. Feb 8 1983, JDI, 1984.123, but it also declared that the place of the harmful event “includes both that of the giving rise and the place of occurrence of the latter” Civ. 1 st , 14 Jan. 1997 D. 1997,177 n. Santa Croce, Rev; crit. 1887.504 1997.504 n. Bischoff
The conflict of law rules have been influenced by the American method of “ Proper law of the tort ”: “center of gravity” of the offense. This is determined by the method of grouping contact points.
It should be noted that in matters of product liability the Hague Convention of October 2, 1973, which entered into force on October 10, 1997, which determines the applicable law according to various elements: place of the damaging event, place of domicile of the victim, place of residence of the manufacturer or producer, place of purchase of the product.
Law of the place where the event which is supposed to have given rise to an obligation occurred.
One question is whether the parties can set aside the application of any national law and thus have a “lawless contract”. While there is a relatively broad acceptance of the application in international contracts of what is often referred to as lex mercatoria, it should be emphasized that it is impossible to abstract the contract from all law. The terms used have a different meaning according to the different laws. The so-called “lawless contract” only amplifies the natural movement of arbitrators to judge next in fact according to their own law, which of course will determine the meaning and scope they give to the contractual provisions.
In French law, case law has affirmed that “any international contract is necessarily linked to the law of a State” (Messageries Maritimes, Civ. 21 June 1950, Rev. Crit. 1950.609) In matters of arbitration the situation can be considered as different.
Determination of applicable law
Form of contract
The applicable law is that of the place of conclusion of the act.
Common law rules
The applicable law is the law of autonomy, namely the law chosen by the parties.
This choice is express if it results from a choice of law clause. Except fraud, this choice will be applied.
The choice is tacit in the absence of such a clause, or if there are ambiguous or contradictory stipulations. In this case the judge looks for the elements which can be considered as revealing the will of the parties. These elements can be the place of performance (generally considered to be of paramount importance), the place of conclusion, the domicile or nationality of the parties, the language of the contract, use of a standard contract or any other typical legal specificity of the contract. ‘a specific national law, etc.
Rules of conventional law
The Rome Convention of 19 June 1980 on the law applicable to contractual obligations , entered into force on 1 st April 1991 devoted to international contracts the principle of autonomy. Article 3 §1 provides that “the contract is governed by the law chosen by the parties”.
In the absence of an express choice, objective criteria are used which vary according to the contracts in question. The Convention (art. 4, §1) provides for the application of “the law of the place with which the contract has the closest links”.
Article 4. §2 provides that “it is presumed that the contract has the closest links with the country where the party who must provide the characteristic service has, at the time of the conclusion of the contract, his habitual residence or, in the case of a company, association or legal person, its central administration ”. The concept of characteristic service is inspired by Swiss law. This is for example the provision of service in the company contract.
The exceptions are as follows
- the location of the building (lex rei sitae) for contracts having as their object a real property right or a right to use a building
- the place of the principal establishment of the consignor when this place coincides with the place of loading or unloading
- the consumer’s usual place of residence (defined as the one who acted “for a use that may be considered foreign to his professional activity) which is applicable even in the event of an express choice
- the usual place of performance of the employment contract which is applicable even during a temporary secondment. If the work is usually performed in several countries, the applicable law is that of the hiring establishment
The contract is subject to the chosen law, which has a number of consequences
- legislative changes are applicable to the contract. Stabilization clauses in contracts with States may be considered to have the effect of rendering unenforceable these modifications in the relations between the parties to the extent that the contractual liability of the State would otherwise be engaged.
- the application of the chosen law may have the effect of canceling the contract
The Hague Convention of June 15, 1955, in force since 1964 relating to the contract for the sale of tangible movable objects provides for the application of the law resulting from an express or “unmistakable” choice. In the absence of such a choice, the applicable law is that of the place of the seller’s habitual residence. This connection does not preclude the application by the parties of specific rules on the law applicable to sales to consumers.
The Hague Convention of March 14, 1978, in force since 1992, relating to intermediary contracts , provides for the application of the law resulting from an express choice or resulting “with reasonable certainty” from the provisions of the contract and from the circumstances. of the cause. In the absence of such a choice, the applicable law is that of the professional establishment, or failing that, the habitual residence of the intermediary. When the place of the main exercise and the agreed activity coincides with that of the principal’s professional establishment, this law applies.
Area of applicable law
The law of the contract is applicable to matters relating to consent as well as to the cause.
The law of the contract is also applicable to the content of the contract: this is the case with the legality of the clauses.
The interpretation is done in theory according to the law of the contract. It is quite clear, however, that a judge or arbitrator will in fact interpret in accordance with the legal concepts which are familiar to him.
The execution of the contract is done in the same way according to the law of the contract, as well as the consequences of non-performance, contractual liability.
The field of application of the law is however limited by the application of police laws and public order provisions, being reminded that in any case the consumer protection provisions are essential.
In addition, the application of foreign law will be based on the one hand on the effective proof of the provisions of this law, and on the other hand according to a legal methodology which is that of the judge or arbitrator seized. It is clear that a court of a country of Civil Law, and even an arbitrator trained in a law which is not of Common Law, will not apply a casuistic method but will be based on legal opinions which will contain rules deduced from case law.
In addition, the terms of execution are likely to be governed by the law of the place of execution. In addition, the implementation of sureties will be subject to the law of the location of the property concerned. Finally, if the debtor requests a moratorium or is declared bankrupt, the law applicable to the bankruptcy will in fact be imposed.
In liberal economy countries, the general principle is that the parties are free to choose the law applicable to their contractual relations.
The law applicable to security is the law on the location of the security, which can be either movable or immovable.
The applicable law is that of the court which opened the procedure.