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Mandatory Rules LOIS DE POLICE

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40 pages
  • dissertation - matière potentielle : under
  • dissertation - matière potentielle : mentor
O v e r r i d i n g r u l e s S u p e r- m a n d a t o r y r u l e s i n t e r n a t i o n a l l y m a n d a t o r y r u l e s NICOLAS SOUBEYRAND under the limited supervision of PROFESSOR T. STRUYCKEN SUPER-MANDATORY RULES H I S T O RY CONCEPT PROSPECT 2000 - 2001 PA L L A S C O N S O RT I U M L L .
  • lois de police
  • mandatory rules
  • only
  • applicable law
  • law
  • droit international
  • droits internationaux
  • applications
  • application
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Overriding rules
NICOLAS SOUBEYRAND
under the limited supervision of
PROFESSOR T. STRUYCKEN
Norme di applicazione necesseria
lois d'application immédiate
SUPER-MANDATORY
RULES
internationally mandatory rules
HISTORY
CONCEPT
PROSPECT
Super-mandatory rules
Mandatory Rules
LOIS DE POLICE
2000 - 2001
LL.M. in
EUROPEAN BUSINESS LAW Eingriffsnormen
PALLAS CONSORTIUMPALLAS PROGRAMME

DISSERTATION UNDER LIMITED SUPERVISION


DISSERTATION MENTOR:

Professeur T. Struycken
Katholieke Universiteit Nijmegen
Faculteit der Rechtsgeleerdheid
PO Box 9049
6500 KK NIJMEGEN
Fax: 024 361 2090
E-mail: t.struycken@jur.kun.nl

STUDENT:

Nicolas Soubeyrand
22 Rue de boyer
69160 TASSIN LA DEMI LUNE
FRANCE
E-mail: n.soubeyrand@juristes.com

SUBJECT :

Supermandatory rules: concept, history, prospect OUTLINE

INTRODUCTION 1
CHAPTER 1: CONCEPT 7
§1: Doctrine 7
A- The integration of lois de police in the current PIL system 7
B- The inconsistence of the lois de police 9
1. Lois de police and public order, two separate notions ? 10
2. Lois de police, an economical reasoning ? 11
§2: Lois de police as a particular method of PIL 13
A- Research of an identifying criterion 13
1. Formal criterion 13
2. Technical Criterion 14
a. Lois de police et territorial laws 14
b. Lois de police and public order 15
3. Finalist Criterion 15
a. Lois de police and political laws 15
b. Lois de police and immediately applicable law 15
B- Particularities of the lois de police 16
1. The identification of the scope of jurisdiction of a loi de police 17
2. Application of foreign lois de police 18
§3: Application 19
A- Application of local lois de police 19
B- foreign lois de police 20
1. Application of lois de police applicable pursuant the conflict rule 20
2. lois de police of a third country 21
C- Conflict between lois de police 22
1. Conflict between a local and a foreign lois de police 22
2. Conflict between foreign lois de police 22

CHAPTER 2: PROSPECT 24
§1: Effects of the Rome Treaty 24
A- Primary Legislation 24
B- Secondary Le26
1. Internal effects 26
a. Positive effect: harmonisation of lois de police 26
b. Negative effect : mutual recognition and equivalence 27
2. External effect 27
§2: Effects of EC Conventions 28
A- The Rome Convention on the law applicable to contractual obligations 28
1. Common rules for all member States 29
a. The administrative lois de police 29
i. Article 7 (1) 29
ii. Article 7 (2) 30
b. Protective lois de police 30
2. Towards a uniform application of the concept 32
B- The Brussels Convention 32
CONCLUSION 34
I N T R O D U C T I O N

“The whole system [the contemporary European conflict law] might appear
complicated, sometimes sophisticated, inappropriately eclectic in the eyes of an American
conflict lawyer. It is. Yet the system is inspired, as a whole, by considerations expressing real
concern for “multistate policies” as such, or for the “maintenance of interstate and
international order”, or for “accommodations between nations… in a growing sense of world
community”. Europeans do not pretend to save the world with such a choice of law system.
But we are reasonably satisfied with it and try to improve it constantly without a spirit of
1exclusiveness and dogmatism” .

Under the many questions raised in the field of Private International Law (P.I.L.) is the
issue of “mandatory rules”. Choice-of-law rules set out to determine the law applicable
without ruling on the litigation; this, under an identified connecting factor regardless the
content of the law to be applied. Nevertheless, the set of conflict rules may be limited by the
intervention, either of substantive rules, or public order rules, or “loi d’application
2immédiate” (immediately applicable law) among which take place the “lois de police” or
“mandatory rules”.

The P.I.L. category of mandatory rules should not be confused with that used whilst
3dealing with domestic matters . Here, the issue of vocabulary is therefore paramount. In
domestic matters, “mandatory rules” (ius cogens, règle impératives) are those that the parties
to a contract cannot exclude, alter or limit in contrast with dispositive rules (ius disposium,
règles supplétives) that are those to be applied when the parties have not expressed their
intention to regulate a given situation. Facing an international relationship, the choice-of-law
rule is limited by “mandatory rules” that will intervene directly to govern the relationship
entirely or partly whatever the law applicable. This latter mechanism has been distinguished

1 Evrigenis, “Interest analysis: a continental Perspective,” 46 Ohio St. L. J.
2 Expression used by Phocion Francescakis in La théorie du renvoi et les conflits de systèmes en droit
international privé, 1958.
3 Even if the distinction is not always clear since a rule can be mandatory in both situations. Some authors such
as Arnaud Nuyts (L’application des lois de police dans l’espace, Revue critique de droit international privé 88,
(1), janvier – mars 1999, p. 36) or Trevor C. Hartley (Mandatory rules in international contracts: the Common
Law approach, p. 345) consider PIL mandatory rules as a sub-category of mandatory rules.
14by terming those rules “super-mandatory rules” , “overriding rules” or “internationally
5mandatory rules” in the Common Law system or “lois de police” on the continent.

The conceptualisation of this category of rules is attributed to Phocion Francescakis.
“Police” derived from the Greek word politeia to which Littré gave the meaning of
“organisation of the State”. Francescakis himself defined lois de police as rules whose
application is necessary for the safeguard of political, social and economical organisation of
6the State .

This definition is not satisfying. Its weakness has been shown by Loussouarn and
Bourel who held that there is no difference in nature between lois de police and other rules. In
modern States any rules try practically to guarantee economical or social interest… Actually
the difference between lois de police and the others is a question of degree which renders the
clash much more difficult. Any attempt to systematize is necessarily bound to fail. Being a
question of degree, of measurement, the qualification of lois de police can only stem from a
7concrete analysis of each legal provision .

One could prefer a more practically-oriented definition given by a Common Law
8writer, Thomas G. Guedj , who distinguishes two elements in a loi de police:
- the purpose and the content of the concerned rules aim at, envision the very
factual pattern of the case at hand; and
- such purpose and content mandate its application.
For its credit, this definition is not limited to a number of State organisational goals.

The protection of the organisation of the State is also guarantee by the concept of
public order which, like mandatory rules, will prevail over the law designated by the conflict
rule. However, public order is said to have a negative function. Indeed the forum facing the
application of a foreign law designated by the conflict rules may consider the content or the
result of its application that may be invidious or obnoxious. Accordingly in order to set aside

4 Roy Goode, Commercial Law, 1995, p. 1112.
5 Also called overriding statutes, self-limiting rules.
6 « Lois dont l’application est nécessaire pour la sauvegarde de l’organisation politique, social et économique du
pays », Répertoire Dalloz, droit international privé, V° Conflit de lois, n° 137.
7 ème Loussouarn et Bourel, Précis Dalloz, Droit international privé, 5 édition, p. 124.
8 American Journal of Comparative Law, The Theory of the Lois de police, A Functional Trend In Continental
Private International Law—A Comparative Analysis With Modern American Theories, Volume XXXIX, 1991,
N°4, p. 666.
2forumthis law, the will raise the exception of international public order and apply the local
rule to regulate the case at hand. The distinction with lois de police takes place essentially in
the method. The application of international public order assumes the application of the
conflict rule and the determination of the content of the law applicable whereas a loi de police
would be applied immediately notwithstanding the conflict rule. However, the boundary
between the two concepts is not clear-cut. There are some overlaps due to the use made by
judges, for instance in France, who expressly apply “public order rules” immediately, before
the discovery of the foreign applicable law. This phenomenon had led some author to object
9the reality of the existence of the lois de police and prefer to gather every rules under the
label of public order but this thought is not received by the majority of the academics so that
the concept of lois de police still exists and even grows up in every legal systems.

The lois de police may be seen as unilateral rules. Francescakis, himself, the founding
loi de police father of the theory, qualified them as partly unilateral because a only apply to
the extent provided by the law itself and does not force the application of all the legal system.
Besides only local lois de police were at stake in its work and he did not consider, although he
was aware of it, the application of foreign lois de police. As a matter of fact, the choice-of-law
process aims at delineating the sphere of application of the law of each legal system whereas a
loi de police only provides for its own sphere of application exactly like a unilateral rule,
whose specificity is to designate only the jurisdiction of the lex fori. However, the lois de
police are substantive rules whereas unilateral rule are conflict rules; the former serve
domestic needs whereas the latter only set out to solve a conflict of law. Moreover, it is now
largely accepted that the forum may apply a foreign loi de police if this one wishes to be
10applied .

It flows from the above-mentioned that the limits of the concept of lois de police is a
bit blur. This shortcoming goes against the need for certainty as to the law applicable to a
legal relationship and also against the friendly co-ordination of the different legal systems.
The certainty of law will suffer from the eviction of the conflict rule which is the most
predictable. More particularly, in the field of contract, it is the law chosen by the parties that
will be ousted. The friendly relationship among countries, based on a neutral conflict rule,
that is a rule which designates the law applicable regardless its content, will also be

9 V. Heuzé, La réglementation des contrats internationaux,1990, p. 179 - 192.
10 See below: B- Application of foreign lois de police p. 20.
3loi de policedeteriorated by the priority given to local . At the international level, the need is
always felt by countries to have an escape from the application of a foreign law. For instance,
in the WTO system, Article XX of the GATT provides for the opportunity to justify the
adoption and consequently the application of domestic rules inconsistent with the GATT.
Nevertheless, this exception is strictly controlled by the Control panel and the Dispute
Settlement Body. At the level of the European community, one also can think about article 30
(ex article 36) of the EC Treaty, which authorizes the member States to derogate to the rules
of the Treaty when some public interests are at stake. Consequently the more the countries are
subjected to non-domestic law, the more they feel the need to invoke their domestic policies
or interests. In the current context of international negotiations and agreements, the
application of loi de police may be seen as a growing up phenomenon that complicates the
game of private international law. Those developments are also due on the one hand to the
increasing intervention of the State in the private legal relations and on the other hand to the
progressive abolition of borders which renders international relations more numerous than
beforehand.

The discovery of the law applicable by application of the conflict rule is due to
Savigny. Yet it was not the only method he proposed. Another method, also based on the
recourse to domestic rules exists. Instead of starting from a legal relationship to seek which
law is applicable to it, it consists of starting by grabbing a law to seek to which legal
relationship it applies. Savigny pointed out both methods and expressed its preference for the
first one. However it was only a preference. Even in the first method a place was reserved for
the second process. This process concerned an exceptional type of law which have a strong
publica utilitasand imperative character laid down by the legislator based on morality or .

Then the successors of Savigny made of the first method a principle unique and
universal. Yet, despite the universality of the method, some law were treated differently not
11only in France when the courts made a discretionary application of article 3 of the civil code
12but also by the Permanent Court of International Justice in the Serbian Loans Case which
stated that “it should however be observed that it may happen that the law which may be held
by the Court to be applicable to the obligations of the case, may in a particular territory be
rendered inoperative by a municipal law of this territory – that is to say by legislation

11 Article 3 have not had a great importance in the field of private international law at the beginning in 1804.
12 Permanent Court of International Justice, 12 July 1929.
4enacting a public policy the application of which is unavoidable even though the contract has
been concluded under the auspices of some foreign law”. Later, we can find the concept under
13 14the nib of some authors . In 1958 , the International Court of Justice accepted the idea of a
law overriding the application of the foreign law recognized as the proper law on the ground
of public order.

15 In this context Francescakis wrote its article La théorie du renvo i where he used the
term of « lois d’application immédiate » to describe the attitude of the French jurisprudence.
Later he declared his preference for the expression lois de police as to immediately applicable
16private laws. This wording has been accepted and resumed by several authors who
developed the concept.

The concept of lois de police is well known on the European continent and for a long
time as it was included in the French Code civil in 1804. However, the concept became
fashionable when Francescakis wrote its article La théorie du renvoi in the late fifties who
based its work on French case-law. Likewise, on the new continent and therefore under a
17Common Law approach, Brainerd Currie published in 1958 an article in which he built its
18“interest analysis” theory based on the case Millikin v. Pratt . In that case, two laws where at
stake, the law of Massachusetts (local law) and the law of Maine. Both of them aimed at
19protecting a particular interest however different . None of them were specifically enacted as
to be applicable in cross-border situations. Therefore, Currie proposed to look thoroughly at
the interest of each legal system, to make an careful analysis in order to determine which of
both interest may be consider worthy to prevail. At this point, he distinguished two types of
conflict. The conflict might be “false” when only one law aims at protecting an interest. In
that case the solution is easy ; the law which protect an interest should be granted priority
even if it is not the lex fori. In a case of a “true conflict”, Curry admitted that there was no
20good solution and considered that each State had an interest in the application of its own
law. Therefore, the result would depend on the forum.

13 Neumayer, Donnedieu de Vabres, Wengler, Zweigert.
14 International Court of Justice, Elisabeth Boll Case, 28 November 1958.
15 Phocion Francescakis, La théorie du renvoi et les conflits de systèmes en droit international privé, 1958.
16 R. De Nova, H. Battifol, Y. Loussouarn, A. Philip.
17 « Married women’s contracts : a study in conflict-of-law method », (1958) 25 Univ. of Chicago Law Rev. 227.
18 (1878) 125 Mass. 374.
19 The protection of married women in Massachusetts, the security of transaction in Maine.
20 Contrary to some other American writers who deem that the court is entitled to weight up competing policies.
Currie rejected this right given to a court.
5
Currie advocated the abandonment of the conflict rule system and its replacement by
the interest analysis. Some States followed this request but most of them rejected it. However,
in the specific issue of mandatory rules, the “interest analysis” has been seen much more
attractive and is nowadays used by American Courts. The interest analysis defers from the
lois de police method in that it rests on a more concrete analysis of each law applicable and
aim at solving not only a conflict of law but also a conflict of mandatory rules. The approach
is different but the purpose is the same, avoid the application of a law inconsistent with the
local law.

The use of lois de police serve the interests of States which find a means to set aside
the application of a foreign law wholly or partly but it does not help private persons who
cannot rely on the conflict rules to foresee the law applicable to their relationship. This
problem of certainty is rendered even more complex because of the difficulty to assess within
a legal system, which those lois de police, immediately applicable among the mass of legal
provisions or even in the mandatory rules category taken in its wide sense. Therefore it seems
essential to designate the outline of the lois de police, to give some clues to determine them
even if the best solution would be to scrutinize the precedents of each legal system.

Consequently it is advisable to contemplate the concept of lois de police taking place
in the Private International Law game (chapter 1) before examining their prospect in the upper
legal layer of European Community law (chapter 2).
6