International law deprived in France

The private international law is the Branche of the right which studies the payment of different the Private laws presenting an international character, that the parts is nationalities different, resident in different countries, or is bound by commitments entered into in a country other than their home country.

The principal problems arising with the private international law are

  • the conflict of jurisdictions , which is subdivided in two distinct questions: international competence (in which country the litigation can be judged?), and recognition of the foreign decisions
  • and the conflict of laws (which is the legal order - the country - whose law applies).
The two questions are quite distinct, the courts of a country which can have to apply the law of another country. The French handbooks also often add a part treating of the subjects of right, including/understanding the right of nationality and the condition from abroad .

In spite of its name, the private international law is not uniform. There exists a French private international law, a German private international law, etc the object of this article is only the international law deprived in France.

History of the private international law

Sources of the private international law

The private international law is a river irrigated by many affluents. A long time purely national (v. for example article 3 of the French Civil code of 1804: " The laws of police force and safety oblige all those which live on the territoire" (- Al 1st). " The buildings, even those had by foreigners, are governed by the law française" rei sitae '' (- Al 2); " The laws concerning the state and the capacity of the people govern the French, even residing in country étranger" (- Al 3) (all bilatéralisables: to see Article 3 of the French Civil code and private international law), it was consisted of the laws and the decision of national courts. Since the beginning of the XXe century, and the increase in the international mobility of the people, capital and goods, one witnesses an internationalization of the sources of the DIP. These sources are international (conventions of $the Hague) or more regional (Community legislation).

Conflicts of laws

Definition

The conflict of laws is the part of the private international law which makes it possible to determine which law will be applied during a litigation presenting of the elements of extraneity. Thus, once the French judge is seized by the litigation, it will be advisable to find the law applicable to the points of law posed. On the basis of the principle which the French judge can apply a foreign law, and that the various foreign laws presenting of the bonds with the litigation have a theoretical vocation to apply, were elaborate rules concerning conflict of laws. They present general characters.

The rule concerning conflict of laws is an abstracted, indirect rule (it does not make it possible to solve the raised basic problem, but only to determine the qualified law to solve this point of substantial law), and neutral (the substantial solution is not taken into account in the determination of the applicable law).

The French private international law is composed of rules concerning conflict of laws emanating from international instruments (convention and treaty), from the law (article 3 of the civil code), or from jurisprudence.

An example of rule concerning conflict of laws: “The law applicable to the formal requirements of the marriage is the law of the place of celebration of the marriage”. Here, according to whether the marriage were celebrated in France, in Japan or in Tanzania, the applicable law by the French judge could be the French, or Japanese or Tanzanian law.

Solution

Two great approaches can be under consideration by the States to solve a conflict of laws.

The first consists in the setting of work of material legal provisions international private, and the second consists in the édiction of rules of conflict.

The material legal provisions international private are substantial rules, being often presented in the form of treated S international, which have vocation to apply since a situation, presenting elements of extraneity, can thus be described as international situation and that it enters the field of application of the treated. The interest of a material rule of private international law is that, because of its substantial character, it gives the solution of the litigation directly. It is not thus any more need to take the turning of a rule of conflict and the solution of the litigation can be obtained much more easily.

As example, as regards international sale of goods an International convention was concluded which was signed in Vienna on April 11th, 1980. If a judge must rule on a sale concluded between French and German (the France and the Germany having both ratified this convention) entering the field of application from this convention, it will not have to determine which French or German law has vocation to apply to slice this litigation, but will directly observe the material rules resulting from the Convention of Vienna, at least within the framework of the material field of application of convention.

On the other hand, for all the elements which are not treated by this convention, the judge will have to determine the applicable law under the terms of the rule concerning conflict of laws.

The édiction of material legal provisions international private is extremely difficult insofar as, when this rule is international, it supposes the agreement of several States on often complex elements.

This is why in the majority of the situations, there do not exist material legal provisions international private and the judge must slice a conflict of laws.

Consequently, the judge will have to slice the litigation by applying the law indicated by a rule concerning conflict of laws. These rules of conflicts can find their source in international conventions (for example the Convention of Rome as regards contractual obligations) or in the internal rights.

In France if the current trend lies in the coding of the rules of conflict, much of rules of conflicts find their source in jurisprudence.

Principal solutions and rules concerning conflict of laws in French right:

Personal status (individual statute and family statute): it is governed according to the systems, and sometimes within a system given according to the questions, by the national law, the law of the residence or that of the main home; in France, by the national law, subject to various exceptions.

Real statute: it is governed by the law of the place of situation of the goods; the intangible goods obey particular rules according to their nature, the tendency being to apply the law of the place of their current location for the real effects to come.

The shape of the legal documents is governed by the law of the place where they passed; this rule is in general regarded as optional, the form being able to be subjected to L quality which governs the act at the bottom and, for certain acts, with the personal law.

The contracts are governed at the bottom by the law wanted by the parts, in the absence of choice, by an objectively given law: according to the systems, by the place of conclusion, the place of execution (in particular of the characteristic service) or according to the principle of the closest link.

The civil offenses and other legal facts are governed by the law of the place of their supervening, subject to particular rules, exceptionally according to the criterion of the closest link.

The patrimonial effects of the marriage are brought closer, according to the systems, of the personal status, the statute of the goods or, as in French right, of that of the legal documents.

The successions intestate are brought closer, according to the cases, of the personal status or the real statute. In the second case, as in France, the real successions are controls by the law of the place of situation of each building and the successions movable by the law of the residence of the late one. The testamentary successions are in general subordinated to the law applicable to the succession intestate.

In the event of litigation, the procedure is governed by the law of the seized for.

It also should be known that as regards international business, the operators of commercial international are gradually brought spontaneously to enact rules which, by their constancy and regularity of application, acquire a certain imperativity: one speaks then about Lex Mercatoria .

Conflicts of jurisdictions

Definition

The conflict of jurisdiction is the part of the private international law which aims at determining when, and under which conditions, the French jurisdictions can be qualified to slice a disagreement with international dimension. With the difference in the conflicts of laws, where each law indicated by the rule of conflict has even vocation to apply, the rules of conflict of jurisdiction are not true rules of conflict. According to certain authors (in particular P. Lagarde in its Course on the " Principle of proximité") these rules are unilateral rules. For others (see the course of Mrs. Bachellier) they are material rules. In all the cases, the doctrines are of agreement on the ambiguity of the expression. Thus, the rules of conflict of jurisdictions only make it possible to determine if the French jurisdictions are qualified. To in no case, the French judge cannot determine if the foreign judge is qualified, according to the majority of the authors this question belongs to official sovereignty.

The rules of conflict of jurisdiction result either from international or regional sources (in particular of the Community texts), or of the transposition to the international order of the internal territorial terms of reference.

An example of rule of conflict of jurisdiction: “the French jurisdictions are qualified if the defendant domiciled in France”. Here the French judge will be able to only declare himself qualified if the defendant domiciled in France. To in no case, it will be able to state the judge German qualified because the defendant domiciled in Germany.

Solution

There exist 4 methods of payment of the international reports/ratios of private law.

Right of the others: right of nationality and condition from abroad

Modes of acquisitions of the Nationality

With regard to the modes of acquisition of the Nationality, one can distinguish two designs resting on different logics: right of the ground and right of blood.

The right of the ground rests on the logic according to which a person born on a territory adopts the Nationalité attached to this territory, whereas the right of blood rests on the logic according to which a person cannot have a nationality that if he inherited it his parents, or of at least one of both.

In France, the modes of acquisition of the Nationalité rest at the same time on the right of the ground and the right of blood.

Thus, is French any child, legitimate or natural, of which one at least of the parents is French.

A newborn in France of two foreign parents will be able, under certain conditions, to acquire the French Nationalité with his majority if it had his main home in France for one period of at least five years since the eleven years age.

Treatment from abroad by the right

to see Resident

See too

Related articles

External bonds

  • Site perso of introduction to the DIP
  • Another site perso but more complete and complex

Bibliography (handbooks of university course of level)

  • private International law , Dominique Office, Horatia Muir Watt, Puf, coll THEMIS, T.I (General Part) & II (special Part), 2007.
  • private International law , Pierre Mayer and Vincent Heuzé, Montchrestien, 2004, Domat private law, 784 pages 8th edition.
  • private International law , Bernard To that, Economica, 2006, 4th edition,
  • private , Yvon Loussouarn, Pierre Bourel, P. of Vareilles-Sommières, Dalloz, 2004, Precise International law, 979 pages, 8th edition.
  • private International law , Patrick Curved, Armand Colin, 2003, Compact, 388 pages, 2nd edition,
  • private International law , Thierry Vignal, Armand Colin, 2005,

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