A Codification of French Private International Law

GEORGES RENÉ DELAUMEt Washington, D.C.

For the first time in French legal history, a general codification of private international law is in the making.' Although some important laws have been passed on French nationality and the condition of aliens in France, 2 the French codes contain only about a dozen articles dealing with the conflict of laws. 3 At present, French

*In this article the following abbreviations of the titles of standard French publications are used : D. Recueil Dallos Gas. Pal. Gazette du Palais S. Recueil Sirey J. C. P. Juris-Classeurs-Periodiques ; also called "Semaine Juridique" Clunet Journal de Droit international Rev. Revue de Droit international privé; called after 1934, Revue Critique de Droit international Nouv. Rev. Nouvelle Revue de Droit international priv6 To avoid a confusion that might otherwise result from the use of the term "conflict of laws", it is noted that in French practice the term generally refers to one particular branch of the wider field of law often called the conflict of laws in Anglo-American practice . The narrower field covered by the term in French practice deals only with the rules for determining the system of law properly applicable to a particular problem and a particular set of facts. In order to avoid ambiguity, the wider branch of law will be referred to in this article as "private international law", and the narrower, as the "conflict of laws". Counselor, Legal Department, International Monetary Fund. Formerly lecturer in law in a number of French universities . ' Travaux de la Commission de Réforme du Code Civil, année 1948-49 (hereafter referred to as "Travaux"), Project .prepared by the Sub-Commitee of the Preliminary Title of the Code . The revision of the French Civil Code has already been studied as a whole in various countries . See L.J. de la Mor- andière, Reform of the French Civil Code (1948), 97 U. of Pa. L. Rev. pp. 1 to 21 ; L. Mallet and M. Verrier, Les travaux de la Commission de Réforme du Code Civil (1950), 28 Can. Bar Rev. 247 ; R. Houin, Les travaux de la Commission de Réforme du Code Civil, Revue trimestrielle de Droit civil, 1951, pp. 34 et seq. ; R. A. Pascal, A Report on the French Civil Code Re- vision Project (1951), 25 Tulane L. Rev. 205. 2 Ordonnances of October 19th, 1945,. and of November 2nd, 1945 . It should be emphasized that French private international law deals not only with conflict of laws but also with nationality and the condition of aliens in France . . a See article 116 of the Draft abrogating these provisions .

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conflict rules still follow very closely the principles elaborated by French courts (Parlements) before the French Revolution and the codification of French law in 1804.4 The scarcity of provisions on private international law in the Civil Code has not, in the past, hampered the elucidation of international difficulties, but, instead, has helped the achievement of a body of jurisprudential theory. Two different considerations suggest, however, that the time is now ripe for a general codification of French private international law. First, contemporary problems differ widely from those of the "pre-code" law (Ancien Droit), for the difficulties arise in a completely different milieu. Instead of being "interprovincial", problems are now "international", and the guiding principles of the former category do not necessarily apply to the latter. Secondly, there is now a body of cases precise enough to permit a restatement of most of the solu- tions given by the French courts. These reasons are a sufficient justification for the task undertaken by the Drafting Committee established in 1945 for the revision of the French Civil Code. For the codification of private international law, the Drafting Committee delegated temporarily its powers to a sub-committee composed of well-known French professors and judges. In its turn, the sub-committee requested Professor J. P. Niboyet, of the Faculty of Law of Paris, to write a project of codification. Work- ing in close collaboration with the Comité FranCais de Droit Inter- national Privé, an association of lawyers specializing in private international law, Professor Niboyet presented to the subcom- mittee a project that has been discussed in a number of meetings and been partially modified. The provisions agreed upon by the sub-committee, referred to in this article as the Draft, are now to be examined by the Drafting Committee and it is likely that some further amendments will be made before the final codification is achieved. A study of the Draft is interesting for it shows not only the mechanics of the codification but also its approach. The drafters had to meet various difficulties . The main one arose from the volume of the provisions necessary to express French conflict rules. Various attitudes could have been adopt- 4 See e.g., Cass. Civ. July 20th, 1909, Viditz v. Gesling (Clunet 1909, 1077 ; Rev. 1909, 900), referring to the old rule locus regit actum with regard to the form of wills ; Cass. Civ. January 14th, 1931, Re Ville de Tokio (Rev . 1931, 537), referring to the pre-code French law in a matter of international payments; Cass. Civ. April 13th, 1932, Re Chateau de Chambord (Rev . 1932, 549), and June 19th, 1939, Re Labedan (Rev. 1939, 480), both referring to the pre-code law in case of successions, the latter especially quoting the old rule mobilia sequuntur personam; Cass. Req. June 4th, 1935, Zelcer v. Schwab (S . 1936. 1 . 377), referring to pre-code solution of conflict of laws with regard to marriage settlements .

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ed : (1) that of former French projects prepared by the Société d'Études Législatives in 1929 and the Comité Français de Droit In- ternational Privé in 1939, or of such foreign codes as the German, Italian or Greek, which, although containing useful guiding principles, are limited in scope; or (2) that of the American Restate- ment, which goes into considerable detail in an attempt to provide explicit answers for practical difficulties. ®n the question of approach, the leading French conflict lawyers participating in the meeting of the Comité Français de Droit International Privé were divided s and every argument for or against the proposed codification was vigorously debated. What finally emerged was an in- termediate solution. The draft does not confine itself to a few guiding principles of private -international law, but leaves much scope for the activity of the courts.' A second difficulty was to find the right place for the new conflict provisions. Was it desirable to adopt a special law outside the confines of the Civil Code or to incorporate the new rules iri the Code itself? This question was also debated and precedents from other countries were cited.' It was finally proposed that the Draft be placed in the preliminary title of the Code, and it is- likely that this proposal will be finally adopted. The Draft is divided into seven chapters dealing respectively with: (1) condition of aliens in France (articles 1 to 13), (2) domicile (articles 14 to 22), (3) conflict of laws (articles 23 to 71), (4) jurisdiction of French _authorities (articles 72 to 88), (5) jurisdiction df French courts (articles 89 to 103), (6) recognition and enforcement of foreign judgments and arbitral awards (articles 104 to 115), (7) a general provision abrogating previous articles of the French codes and various specific laws (article 116) . In the preparation of this article a choice had to be made between the analytical and the synthetic method of approach. The synthetic method might have helped to emphasize the general principles prevailing in the Draft and the philosophy of the drafters, but it would have obscured many provisions of the Draft. On the French pre-code law see Lafné, Introduction à l'étude du droit international privé, 2 vols (Paris 1888 and 1892); G. R-. Delaume, Les conflits de lois à la veille du Code Civil (hereafter referred to as "Conflits")~ (Paris, 1947) and Les conflits de lois à la veille du Code Civil dans les traités diplomatiques (Paris, 1948) . s See Travaux du Comité Français de Droit International Privé, 1945-46, pp. 13 et seq., pp. 53 et seq. c It should be noted that the Preliminary Title of the new Code will also contain specific provisions referring to the publication of international agreements and their interpretation (arts. 15 to 20 and art. 21 of the Preliminary Title of the new Code (see Travaux 1948-9, pp. 324-5). r See Travaux du Comité Français de Droit International Privé, 1945-6, loc. cit.

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Since these provisions are not yet well known to the public, it seemed preferable to follow the analytical method. It should give non-French readers a detailed view of the Draft and establish more completely the close connection between the Draft and its background of French tradition, as well as the present case law.

II. Condition of Aliens in France Article I of the Draft maintains the general principle derived by French courts$ from article 11 of the Civil Code that, unless otherwise provided, an alien is entitled to claim the same rights as a French citizen. This rule is only limited in its scope by the second paragraph of the same article, which provides that an alien cannot vote for or be elected to a political assembly and cannot be appointed to a public or judicial function or participate in the management of a governmental agency.9 The same liberal attitude characterizes article 2 of the Draft on security for costs (caution judicatum solvi) . Under article 16 of the Civil Code, security to guarantee the payment of costs may be required from any alien plaintiff suing a French citizen. The only exception is where the plaintiff owns immovable property in France.l0 The new provision adopts the same basic rule, but mini- mizes its rigidity by multiplying the exceptions. Under it, security for costs is not required where the alien is domiciled in France or owns any kind of property in France (whether immovable or not) sufficient to secure the eventual payment of the costs. Nevertheless, various international agreements, as well as specific municipal laws, modify the general condition of aliens in 6 For cases see e.g., Cass. Civ. S. Civ. July 27th, 1948, Rev. 1949, 75 ; Civ. S. Soc. March 11th, 1949, ibid. 1950, 50; Cass. Ass . Plen. March 1st, 1950, S. 1951.1.45, Note Niboyet. The wording of the new provision will avoid the doctrinal discussions that divided the leading authors of the last century with regard to the rights granted to aliens in France (see Niboyet, Traité de droit international privé français (hereafter cited as "Traité"), vol. II (2nd ed.) Nos. 712 et seq.) ; Batiffol, Traité élémentaire de droit international privé (hereafter cited as "Traité") Nos. 176 et seq. ; Lerebours-Pigeonni6re, Précis de droit international privé (hereafter cited as "Précis") (5th ed.) Nos. 167 et seq. Such a limitation is generally admitted in every country and cannot be considered as a hardship on aliens resident in France. On the contrary, French law is nowadays very liberal. Aliens have been granted a right to vote in non-political elections, for example, in unions and social security groups : Décret of June 5th, 1946 (art . 10) ; Law of March 7th, 1949, modifying art, 135 of the "Code du Travail" ; Décret of March 11th, 1948 (art . 18) ; Law of March 6th, 1950 (art. 15) . Sometimes aliens have even been granted a right to be elected in non-political elections : Décret of June 5th, 1946 (art . 9) . 10 Since 1945 French law has distinguished three categories of aliens in France : étrangers résidents temporaires (aliens temporarily resident) ; résidents ordinaires (aliens ordinarily resident) ; and privilégiés (aliens having certain special rights) . The last mentioned are entirely free from any obligation to furnish security for costs (Ordonnance of November 2nd, 1945, art 17) .

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France. Often the enjoyment by aliens of particular rights is con- ditioned on reciprocal rights being granted, in the aliens' country, to French citizens. Article 3 of the Draft provides a convenient way of ascertaining whether reciprocity exists or not. It gives the Chancellor and the Minister of Foreign Affairs, assisted by a committee of technicians, the right to prepare a list. of the countries with which there is reciprocity. Since the article establishes a procedure under which the Conseil d'Etat may be asked to review the .government's decision in a particular case, aliens are assured that reciprocity, if it exists, will be recognized. The foregoing principles apply mutatis mutandis to juridical persons (article 4) . It is worth noting, _though, that the Draft contains some further provisions on the determination of their "nationality" as well as their recognition. Two different criteria may be used for ascertaining the "nationality" of a juridical person: one refers to its domicile (siège social) or its place of registration ; the other considers the various influences (nationality of members, origin of capital, and the like) that direct and control the activity of the group. Although, during recent decades, French legislation, and international agreements to which France is a party, show a clear trend towards. the adoption of the "control" system," there is no general provision in French law that specifically establishes it. French courts use either one of these'criterial2 and the Draft recognizes them both. If the Draft is somewhat conservative in the determination of the nationality of juridical persons, it gives a completely new solution for their recognition. Under existing French law â dis tinction is made between limited companies and all other kinds of foreign juridical persons. This distinction . originated in the middle of the last century. Up to that time there was no doubt that all kinds of foreign juridical persons were recognized "ipso facto; but, suddenly, a difficulty arose between France and Bel- gium over the recognition of limited companies. In order to meet it, the French legislature passed the law of May 30th, . 1857.

11 See, for instance : Ordonnances of October 18th, 1944, and January 6th, 1945 (art . I, 1°) ; Law of October 28th, 1946 (art . 11) ; Treaty Franco-Turk of October 12th, 1946-(art. 6) ; Treaty Franco-Saar of December 15th, 1948 (art . 16) . 12 In favour of the siège social principle, see Cass. Req. Dec. 24th, 1948, S.,1929 . 1. 121; July 17th, 1930, S. 1931. 1. 4; Rev. 1931, 128 ; January 20th, 1936, S. 1936. 1. 127; January 9th, 1940, S. 1943. 1 . 72 ; Cass . Civ. July 25th, 1933, D. P. 1936. 1. 125; S. 1935. 1. 41; May 25th, 1937, S. 1937 . 1. 365 ; May 29th, 1938, J.C.P. 1939, 11. 1284. In favour of the control principle, see Cass . Req. May 12th, 1931, S. 1932 . 1 . 57; Cour d'Appel de Paris, March. 20th, 1944, Rev. 1946, 51; S. 1945, 2. 1 ; Clunet 1940-45, 600; Cass. Civ. S. Comm. May 3rd, 1950, D. 1950, 682 .

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Broadly speaking, this law provides (1) that Belgian limited companies are recognized in France, and (2) that, with respect to other countries, an order (Décret) is necessary to grant recognition to the limited companies created by any one of them. This system, which is still in force, is not only complicated but is also devoid of practical significance, because of the numerous treaties signed by France that recognize foreign companies. In fact, only nineteen orders have been issued under the law of May 30th, 1857. 1 3 . Article 5 of the Draft will reform this unsatisfactory state of the law by extending to all limited companies the rule applicable to other juridical persons. This rule is that foreign corporations of any kind are recognized in France. It applies to foreign associations and unions as well (article 7) . This assimilation of corporations and associations is, however, strictly limited to their recognition. A new distinction is made with regard to the extent of their post-recognition rights. Whereas article 6 provides that all types of foreign corporation may freely carry on business in France, 14 article 7 declares that, except in cases of recognized public interest, foreign associa tions or unions may not conduct any activity in France without the prior approval of the French government. This distinction proceeds from the traditional French attitude to associations. The legislature does not object to the activities of corporations that intend to pursue only an economic aim, but has always been suspicious of associations that further an ideological or political goal, often opposed to that of the government. Even in municipal law, the legislature limits rather strictly the activity of non- economic groups. It is hardly surprising that an innate suspicion of all associations should be intensified in the case of foreign associations. The same consideration explains the subsequent provisions (articles 8 to 13) dealing with the creation in France of associations controlled by aliens. These provisions, derived from specific laws enacted before the war against Nazi organizations," not only require the prior authorization of the French government before an alien controlled association is formed (articles 8 to 10), but

11 See the list of these orders in Niboyet, Traité, vol . II (2nd ed.) No . 805 . 14 Where not otherwise provided by an order referring to a specific country or a specific kind of corporation which is deemed not to offer a sufficient guarantee (art . 6 of the Draft in fine) . 15 See, Travaux du Comité Français de Droit International Privé, 1938- 39, 53 et seq.; Savatier, La condition en droit international privé des personnes morales dans les divers Décrets-lois français de 1939, Rev. 1939, 418 et seq.

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also punish any infringementby declaring the association null and void (article 11) and by penalizing its members (article 13). Arti- cle 12 provides a variety of procedures for liquidation, in the case of a refusal of authorization or the subsequent dissolution of an association. III. Domicile There is no specific provision in the Civil Code dealing with the determination of domicile in private international law. Conse- quently, where a determination is necessary, the courts extend the provisions of municipal law (articles 102 et seq. of the Civil Code) that regulate French domicile for domestic purposes. Arti- cle 14 of the Draft retains this approach. Translated, it reads as follows : "The determination of domicile in international intercourse is governed by articles 102 et seq. of the Civil Code, subject to the application of the following provisions [of the Draft]".ls In the determination of a French domicile of choice, the Draft distinguishes between French citizens and aliens. For aliens, the Draft makes the acquisition of a French domicile dependent on strict -compliance with police regulations governing the residence or settlement of aliens in France (article 15). Consequently, any alien who wants to acquire a French domicile must not only be resident in France and have the animus manendi (article 102 C. Civ.) but must also satisfy the formalities prescribed by the Cr- donnance of November 2nd, 1945, and the subsequent implement- is On comparative law, see Cheshire, Note (1951), 4 Inter. L. Q. 52 ; Johnson, Conflict of Laws, vol. I, pp. 97 et seq. ; M. Wolff, Private Inter- national Law (2nd ed.) No. 99 ; Rabel, Conflict of Laws, vol . I, p. 139 ; Cordier, De la notion de domicile en Droit comparé (France et Angleterre), Clunet 1937, 969 et seq. Notwithstanding the broad character of the rule in art . 14, it does not follow that the French concept of domicile applies to every case involving the determination of an international domicile. Article 14 cannot be read without referring to another provision (art . 26, para. 1) which declares that any classification must be made according to the law selected by the applicable conflict rule . Thus, it follows that, where the determination of the concept of domicile is not necessary to the application of the French conflict rule, but only to the construction of the foreign law deemed applicable, the classification has to be taken from the foreign law itself without regard to the French definition. The classical example is the case of renvoi. For example, if French law decides that English law applies, and English law refers to the law of the domicile, the classification of the notion of domicile must be derived from English law and not from French law. Whereas it is irrelevant to the application of the French conflict rule, it is indispensable to the interpretation of the English rule, which refers back to the lex domicilii. In such a case, art. 26, para. 1, excludes art . 14. Such an analysis has already been accepted by French courts (Cass. Civ. March 7th, 1938, De Marchi della Costa v. 6poux de Bagneux, Rev. 1938, 472, note Batiffol . See also Niboyet, Traité, vol. III, Nos. 958 bis, 969, 1002 ; Lerebours-Pigeonni6re, Précis, No . 261; Batiffol, Trait6, Nos. 294, 311, 402 ; Levasseur, La détermination du domicile en droit international priv6 frangais (thesis, Paris 1931) ; Rabel, op. cit., vol. I, p. 146.

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ing orders. If these conditions are fulfilled, the alien may acquire and retain his domicile in France so long as he resides there and keeps his animus manendi (article 20) . A specific provision (article 19) automatically gives the alien a French domicile when he has been a resident in France for more than three years and has complied with police regulations. An exception is provided in favour of aliens who reside in France as representatives of a foreign government or of an international organization. Such a provision as article 19 is important in a country like France in which a large number of aliens permanent- ly reside, for it avoids the always difficult problem of determining the intent of the parties. Article 21 of the Draft concerns the maintenance of a French domicile by French citizens residing abroad. It begins with a provision similar to that of articles 19 and specifies that the French citizen who resides abroad as a representative of the French government or of an international organization retains his French domicile. Furthermore, article 21 gives to any French citizen residing abroad a means of retaining his French domicile. A mere declaration to the French consulate at the place of residence will suffice to establish the animus manendi and entitle him to retain his domicile in France. The Draft also contains various provisions on the domicile of dependent persons. It impliedly abrogates the rule that the domicile of a servant is necessarily that of the master. With regard to infants and lunatics, it elaborates a rule different from the one prevailing in French municipal law by providing that a minor or lunatic who resides in France retains his domicile there notwithstanding the acquisition of aforeign domicile by his father, mother or guardian (articles 16 and 17). The treatment of married women is even more interesting. "The French or alien married woman is domiciled where she per- sonally satisfies the conditions provided for in articles 102 et seq. of the Civil Code, although her husband is domiciled in another State" (article 18) . This article, if adopted, will work a complete legal revolution in France. It reverses the traditional principle of the unity of the domicile of married couples, under which a married woman cannot have a domicile distinct from her husband's (article 108 C. Civ.) .17 The new rule approaches the law of other

17 Ci. Johnson, op. cit., vol. I, pp. 142 et seq.; E. Fabre-Surveyer, La conception du droit international privé d'après la doctrine et la pratique au Canada, Recueil des Cours, Académie de La Haye, 1935, vol . 3, pp. 181 et seq.; Dicey, Conflict of Laws (6th ed.), pp. 107 et seq.; M. Wolff, op . cit., Nos. 118 et seq.

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countries, for example the United States," which appears to ad- mit the possibility of separate domiciles for husband and wife. The growing acceptance of this new position is a direct conse- quence of the growing independence of married women during recent decades. In the case of France, it may also be explained by the desire to retainjurisdiction over married women residing in France, as the various Matrimonial Causes Acts do in the British Commonwealth.19 Article 22 provides, in the case of minors of French nationality, that guardianship proceedings may be instituted in the place of their last domicile in France. This provision may prove to have practical value in those cases in which protective measures are not taken in the foreign country where the French minor resides.2o

IV. Conflict of Laws The third chapter of the Draft deals with conflict of laws21 and is divided into ten sections. The first refers to general principles and the others deal with specific questions. The first section begins with articles 23 and 24, which may be translated broadly as follows : "The provisions of the present chapter determine the application of French law" (article 23) ; "They also determine cases where a foreign law is applicable. However, when this law does not accept the reference, it is necessary to apply a foreign law that does, and, in default of any such law, French law shall apply" (article 24) . These two articles are the result of a compromise between the opposing opinions that divide French authors on the question of

1s See Restatement of the Conflict of Laws, ss. 27, 28; Goodrich, Conflict of Laws (3rd ed.), pp. 79 et seq.; Rabel, op. cit., vol. I, p. 403 . ", See R. H. Graveson, Jurisdiction, Unity of Domicile and Choice of Law under the Law Reform (Miscellaneous Provisions) Act, 1949 (1951), 4 Inter. L. Q. 371. SU A final remark must be made. Although the preliminary Draft contained two articles referring to the domicile of juridical persons, the final Draft does not even mention the problem . The explanation is that the first project provided that a juridical person was domiciled at the location of its main office, but it appeared that an express provision was unnecessary, for the principle was already well established in municipal law. The other proposed article, dealing with the transfer of domicile of a juridical person, was eliminated because the drafters felt that the controversial character of the problem made it impossible to formulate a definitive rule of private international law. Despite this difficulty, the lack of a provision on such an important problem is regrettable, and it is to be hoped that the Drafting Com- mittee will reach an agreement . Cf. Restatement, s. 41; Goodrich, op . cit., p. 96; Rabel, op. cit., vol . 2, p. 28 ; M. Wolff, op. cit., No. 285. 21 On French conflict of laws, see e.g., Lorensen, The French Rules of the Conflict of Laws (1927), 36 Yale L.J. 731 ; (1928), 37 ibid . 849 ; (1929), 38 ibid. 165; Domke, Basic Questions of Conflict., of Laws before the French Cour de Cassation 1938-41 (1943), 5 U. of Toronto L. J. 95.

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renvoi.22 No attempt will be made in this article to state the argu- ments for, or the refinements of these competing philosophies, particularly since much of the debate has been paralleled in Anglo- American literature.23 An example will suffice to show the consequences of the-technique adopted in the Draft. Suppose that an English couple wants to secure a divorce in France. The French judge must consult the French conflict rule before deciding if French municipal law is applicable (article 23). He will conclude that it is not applicable because the French conflict rule points to the national (that is, English) law of the parties. Having thus determined that the English law applies, the French judge will take into account the reaction of the English law, including its rules of conflict (article 24) . Consequently, if the English conflict rule refers to the law of a third country, for example Italy, he will have to apply Italian law. It is only in a case where Italian law, in its turn, would not accept the reference that the French judge will have to apply French law, so as to avoid reference after reference and the possibility that no law will ultimately accept the reference. It should be pointed out that the solution admitted in the Draft leads to the admission of the renvoi au second degré (Weiter- verweisung), which has never been recognized by French courtS.24 Traditionally, the French courts apply and accept the renvoi only in cases where it leads to the application of French municipal law (renvoi au premier degré) . Whatever the merits of the Draft's solution, article 25 carries out the conception implied in the preceding provisions . Article 25 refers to the enforceability in France of rights acquired under a foreign law. It provides that any right acquired under the foreign law deemed applicable, either under article 23 or under article 24, will be enforced in France unless to do so would be contrary to public policy. In other words, article 25 adopts the French theory

22 See Travaux 1948-49, p. 759. See also Travaux du Comité Français de Droit International Privé, 1945-46, pp. 79 et seq. 23 See Martin Wolff, op. cit., Nos. 89 et seq., Falconbridge, Essays on the Conflict of Laws, pp. 116 et seq., 187 et seq. ; Le renvoi et la loi du domicile, Rev. 1947, 45 et seq. ; Johnson, op. cit., vol. 1, pp. 11 et seq.; Goodrich, op. cit., pp. 201 et seq.; Rabel, op. cit., vol. 1, pp. 70 et seq.; Nussbaum, Prin- ciples of Private International Law, pp. 99 et seq.; Lorenzen, Selected Articles on the Conflict of Laws, pp. 19 et seq., 54 et seq.; Cook, The Logical and Legal Bases of the Conflict of Laws, pp. 239 et seq.; Sohn, New Bases for Solution of the Conflict of Laws Problems (1942), 55 Harv. L. Rev. 978; E. N. Griswold, Renvoi Revisited (1938), 51 Harv. L. Rev. 1165; Restatement, ss. 7, 8. 24 See cases quoted in Niboyet, Traité, Vol III, Nos. 993 et seq., 999 et seq.; Lerebours-Pigeonni6re, Précis, Nos. 260 et seq. ; Batiffol, Traité, Nos. 303 et seq. The same view was already taken in the rare decisions accepting

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of the distinction between the création et efcacité des droits. 21 This distinction, _ which is admitted. by all French authors, at least where public policy is involved,26 finds precedents throughout French legal history.27 In short; article 25 does not innovate but merely recognizes a principle that has been steadily accepted by French courts for many centuries. Article 26 of the Draft deals with classification and codifies the principle that (after settlement of the preliminary. question by the lex fori) classification is made according to the system of law applicable under French conflict rules.23 Bùt, it should be noted that the Draft extends this solution to the classification of movables and immovables. Although the solution had been highly recommended by the author of the first plan for the Draft,29 it might be argued that it is not supported by French cases, at least for tangible movable or immovable property (choses corporelles) as opposed to choses in action (choses incorporelles) .36 If accepted) the proposal -of article 26 for tangible property would be incon- sistent with most other systems of law, which classify it according to the lex rei sitae.31 On the other hand, article 27, which in the matter of applicability makes an exception of any foreign law that is contrary to French public policy, is simply a declaration of existing French the renvoi in the XVIIth and XVIAth centuries : see G. R. Delaume, Con- flits, pp. 93 et seq. 26 Niboyet, Traité, vol. III, Nos. 936 et seq.; Batiffol,' Traité, Nos. 325 et seq., 368; Lerebours-Pigeonnière, Précis, Nos. 272 et seq. ; Arminjon, Précis, vol. I (3rd ed.), Nos. 55, 61 ; Bartin, Principes, vol. I, s. 78. This distinction must not be confused with the English-American theory of the vested rights. See Batiffol, Traité, No. 326 ; Falconbridge, op. cit., pp. 9 et seq. 26 Niboyet, Traité, vol. III, Nos. 1042 et seq. ; Batiffol, Traité, No. 368; Lerebours-Pigeonnière, Précis, Nos. 271, 278 est seq. 27 See cases of the XVI, XVII and XVIIIth century quoted by-Delaume, Conflits, pp. 24 et seq., and treaties quoted in Les conflits de lois à la veille du Code Civil dans les traités diplomatiques, pp. 12. et seq. For the contemporary law, see Jacques Donnedieu de Vabres, L'Evolution de la jurispru- dence française en matière de conflits des lois depuis le début du XXème siècle, pp. 753 et seq.; R. Plaisant, Les régles de conflits de lois dans les traités, pp. 28 et seq. 26 See footnote 16 supra. See also, Robertson, Characterization in the Conflict of Laws, pp. 135 et seq.; M. Wolff, op. cit., Nos. 196 et seq. 29 Niboyet, Traité, vol. III, No. 957. See also Arminjon, Précis, vol. II, Nos. 24 and 39. 36 Lerebours-Pigeonnière, Précis, No. 256; Bartin, Principes, vol. I, s. 88; G. R. Delaume, Conflits, pp. 80 et seq. ; Mr. Batiffol (Traité, No. 298) does not commit himself. 3' See M. Wolff, op. cit., Nos. 484 et seq. ; Story, Conflict of Laws (6th ed.), s. 447; Goodrich, op cit., p. 17; Nussbaum, op cit., pp. 88 et seq. ; Fal- conbridge, op. cit., pp. 433 et seq.; Johnson, op. cat., vol. III, pp. 235 et seq. ; Cook, op. cit., pp. 284 et seq.; F. Hallendall, The Characterization of Pro- prietary Rights to Tangible Movables in the Conflict of Laws (1935), 45 Yale L. J. 374, A. Donaldson, The Lex Situs and Heritable (or Real) Pro- perty (1951), 4 Inter. L. Q. 101 ; Restatement, s. 208 ; Robertson, op. cit., pp. 190 et seq.

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law, to the extent that it emphasizes that the only way to decide whether or not a foreign law runs counter to French public policy is to give the judge a free power of determination. This method recognizes the impossibility of giving an a priori list of the heads of public policy. The first paragraph of article 28, which provides that there is no recourse to the Supreme Court (Cour de Cassation) in a case where an applicable foreign law has been misinterpreted by a French judge, also represents the traditional view.32 But there may be a recourse under the second paragraph of the article where the misunderstanding of the foreign law is obvious, in the sense that it is not open to any reasonable doubt. This modification of the general rule is sensible, even though it may be difficult to determine when the error is obvious in the required sense. Article 30, which deals with fraude à la loi as an exception to the recognition of rights acquired abroad, requires no comment other than that the Draft expressly states that the penalty for such a fraud is not the nullity of the act performed abroad, but only its inopposabilité (unenforceability) in France.33 Article 31 provides that all the acts done on board a vessel or an aircraft are governed by the law of the place where the vessel or aircraft is registered in all cases where territorial law would be competent if the act took place on land, subject to the police regulations (lois de police et sf1reté) of the harbour or airfield. Article 29 embodies a new rule of special interest. It provides that "the Government, in orders passed with the approval of the Conseil d'Etat, may decide that French courts shall not apply the law of a country that does not itselfapply French laws in identical circumstances" . This provision includes, for the first time in French conflict rules, the condition of reciprocity, which at first sight seems reasonable but has implicit in it the danger of introducing political considerations. Although conflict of laws problems may be influenced by political necessities, in practice the condition of reciprocity is very rarely urged, at least with this generality ." 32 See, e.g., Cass. Civ. May 23rd, 1938, Clunet 1939, 85 ; Cass . Req. No- vember 19th, 1941, S.1942. 1.129, note Batiffol ; Cass. Civ . S. Civ. Ma y 25th, 1928, D. 1948, 357, note P.L.P.; Cass. Civ. R. June 27th, 1950, J.C.P. 1950, IV, 130. 33 Niboyet, Traité, vol . III, Nos. 1090 et seq.; Lerebours-Pigeonni6re, Précis, No. 263; Batiffol, Traité, No. 376 ; and the cases quoted by these authors . For a typical case deciding that a Nevada divorce could not be recognized in France, see Paris, December 15th, 1948, Weiller, S. 1949 . 2. 69, note G. R. Delaume (recently confirmed by the Supreme Court, Cass . Civ. January 22nd, 1951, J.C.P. 1951, II, 6151). For comparative law, see Verplaetze, La fraude à la loi en droit international privé. 34 See Introductory law to the German Civil Code, art. 25, para . 2, art . 31; German Code of Procedure, art . 606; Austrian law on the sociétés d

1951] A Codification of French Private International Law 733

Moreover, it is unlikely that the French government would use the power granted to it in article 29. The adoption of an order prohibiting the courts from applying a foreign law in the absence of reciprocity would probably have political repercussions that a government might well hesitate to face. For all these reasons, it is to be hoped that article 29 will be eliminated from the Code as finally adopted. Section II of the third chapter of the Draft, on personal status and capacity, maintains the traditional principle of French conflict rules that status and capacity are governed by the national law of the parties. 35 In a case where a person has lost his nationality (heimatlos) and it is consequently impossible to apply the national law, French law is applicable to him while he is ordinarily residing in France (article 32). It would not be necessary to add any comment were there not very important exceptions that greatly limit the scope of the general rule. French law applies exclusively to the following -exceptions contained in article 32 and subsequent provisions of the Draft: (1) the personal status of aliens legally resident in France for more than five years, (2) a family relationship involving both a French citizen and an alien, (3) in a case where the applicable foreign law is disregarded on the ground of French public policy, (4) in a case where the theory called théorie de l'intérêt national maybe involved. The first exception (article 32 in fine) leads to the application of the law of the domicile to aliens ordinarily resident in France. ~6 The second exception extends to its ultimate limits the applicability of the national law principle. As provided in articles 36, 37, 40 and 41, whenever a family relationship involves an alien and a French citizen, the national law of the latter is applicable to both parties. This solution codifies French case law, 87 and shows responsabilité limitée of March 6th, 1909, art. 109 ; Swiss law of June 25th, 1891, art . 33; Swedish law on the effects of marriage of June 1st, 1912, art . 1 ; Italian law on air navigation of August 20th, 1933, art. 8. On the other hand, the American Restatement expressly rejects the condition of reciprocity (s. 6) . See also, Niboyet, Traité, vol. III, Nos. 930 et seq.; Goodrich, op. cit., p. 606 ; Beale, op. cit., s. 434. 2, vol. II, pp. 1385 et seq.; M. Wolff, op. cit., No. 141. 36 See Lorenson, op. cit. (1928), 38 Yale L.J. at pp. 164-5. 3s Art. 32 should be read in connection with art . 19, which provides that any alien, legally residing in France for more than three years, acquires a French domicile. The fact that France is now a country of immigration and therefore desires the assimilation o£ aliens settled in France explains the proposed rules. But it is difficult to explain why art . 19 requires a residence for three years as a condition of the acquisition of a French domicile, whereas the applicability of French law, under art . 32, depends upon residence for five years in France. A uniform rule would be more appropriate. 3' See G. R. Delaume, L'influence de la nationalité française sur la solution des conflits de lois en matière de droit des personnes, Rev. 1949, 5 et seq., and the references to cases and authors .

734 THE CANADIAN BAR REVIEW [VOL. XXIX

the intent of the drafters to make the solution of conflict of laws problems depend on the acquisition or loss of French nationality.38 Thirdly, article 35 of the Draft provides that "Where one or more conditions for the validity of a marriage that is normally governed by a foreign law are eliminated on grounds of public policy and the marriage is celebrated in France, the conditions for the validity of the marriage are governed by French law". Article 38 reflects the consequences of this solution by providing that the effects of a marriage celebrated in France and, possibly, divorce or separation are also governed by French law. The same consideration explains article 39, which specifies that a divorce or a separation will be entirely governed by French law where the foreign law normally applicable cannot be applied because of French public policy (especially in cases where the foreign law requires the prior assent of a religious authority) . 39 A final exception is provided for in article 33. The first paragraph of this article reads: "An obligation contracted in France by an alien, incapable under the applicable foreign law, but ca-

38 In such cases French law applies as the proper law of the family, whatever might be the consequences of its applicability for the French party. Various cases apply French law where it is less favourable to the French citizen's claim than the personal law of its opponent . For instance, the Su- preme Court (Cass. Req. March 5th, 1935, Epoux Fernandez v. Valero, Rev. 1935, 775) rejected the claim of a French illegitimate child against a Spanish father in a case where French law is less favourable than Spanish law. The same view prevails in recent cases concerning illegitimacy and divorce (Trib. Civ. Seine, July 20th, 1948, Rev. 1949, 97, note G. H.; April 8th, 1949, S. 1950. 1. 17, note Niboyet) . The wording of the Draft shows clearly the intent of the drafters to apply the French law as the proper law of the family: Art. 36. "The effects of the marriage are governed, with regard to both spouses, by French law where the status of one of them is governed by French law" . Article 37. "The same solution is available with regard to divorce and separation". Art. 40. "The legitimacy or illegitimacy of a person is governed by French law whenever the status of one of the parties is governed by French law" . Art. 41 . "The foregoing provision is also applicable to legitimation and to adoption, and to legitimation adoptive" . (The legitimation adoptive is a variety of adoption that gives the adoptive child certain advantages he does not enjoy in other forms of adoption, e.g., with respect to succession .) 3s These principles are based on the consideration that a foreign law must not be applied contrary to its spirit, and that any attempt to submit the effects of a marriage to a foreign law that does not recognize the validity of the matrimonial union would be useless . It is obvious, for instance, that the marriage of two Greek citizens celebrated civilly in France does not con- stitute a valid marriage under Greek law, which admits only the religious celebration of a marriage. Therefore, to submit the effects of the marriage to Greek law would be illogical . Once the foreign law is eliminated on the ground of public policy and the marriage is celebrated according to French rules, it is necessary to apply the law that admits the validity of the marriage, that is, the French law as the lex loci celebrationi3 (see Cass . Civ . February 25th, 1947, Ghattas, Rev. 1947, 444, note Niboyet ; D. 1947, 161, note Lerebours-Pigeoni6re ; S.1947. 1. 97) .

1951] A Codification of French Private International Law 735

pable according to French law, is valid provided it has been undertaken towards a person who was unaware of the incapacity". This provision is intended merely to codify the classical French theory of the interet national :4o Section III of the Draft deals with matrimonial property (re- dime matrimonial) . Under article 43, where the spouses have not made any pre- marital agreement their property is governed by the same law as their personal status and, in cases where they have different na tionalities, by the law of the first matrimonial domicile. Where the parties makea pre-marital contract, the contract is governed by the law they have selected assuming that the selection is without a fraudulent intent (article 44). If they have made a contract but have not determined the applicable law, article 43 governs. The foregoing provisions abandon the so-called doctrine of the autonomy of the parties (autonomie de la volonté) which has been applied by French courts since the nineteenth century.41 The em phasis thus laid on-the law of. the nationality, even though it is sometimes displaced in favour of the law of the domicile, is regrettable since it may provoke diverse results depending on the forum. For this reason, it might have been preferable to follow the Anglo-American solution,4z or that of the pre-code cases, which applied the lex domicilii to movable property and the lex situs to immovables.43 Whatever may be the reason for the decision of the drafters, article 45 provides that the proper law of the matrimonial pro- 40 This theory means that, whenever A, a person who makes a contract in France with B, An alien who would normally have the capacity to contract, and A discovers that B did not have capacity, the contract is enforceable provided A has not been negligent and has obtained all the normal in- formation with regard to B's capacity. In other words, this theory aims only to protect the businessman who cannot, reasonably, make inquiries about the capacity of a person who enters his shop or hotel. On the general principle, see Niboyet, Traité, vol. V, No. 1538 ; Lerebours-Pigeonnière, Précis, No. 353 ; Batiffol, Traité, Nos. 417 et seq. See also Goodrich, op . cit., pp. 312 et seq.; Beale, Cases, vol. II, p. 8; Johnson, op. cit., vol. III, pp . 408 et 'seq.; M. Wolff, op. cit., No. 262 ; V. Wyndham A. Bowes, Contractual Capa- city in Commerce, Transactions of the Grotius Soc., vol . XVI (1931), pp. 13 et seq.; Restatement, s. 333; Lorenzen, op. cit. (1928), 38 Yale L. J. 165 . 4 1 See G. R. Delaume, L'autonomie de la volonté en droit international privé, Rev. 1950, 321 et seq., and the references to cases and authors ; Lor- enzen, op. cit. (1928), 38 Yale L.J. 175. 42 See Johnson op. cit., vol. I, pp. 402 et seq.; Rabel, op . cit ., vol. I, pp. 328 et seq. ; Goodrich, op. cit., pp. 376 et seq.; M. Wolff, op. cit., Nos . 335 et seq. ; Restatement, ss. 237, 238, 248, 289, 290, 301. 43 See G. R. Delaumè, Conflits, pp. 263 et seq. There is no reason why this rule, which applies to successions, should not also prevail in the case of niàtrimonial property . French courts do not hesitate to extend it to various institutions, such as matrimonial gifts (Cass. Req. March 15th, 1933, Epoux Sureya v. Princesse Ihahim Hilmy, Rev. 1935, 409, note H. Batiffol), which have the aspect of both .

736 THE CANADIAN BAR REVIEW [VOL. XXIX

perty will decide whether and to what extent the parties may modify it during the marriage. Such a view is generally adopted by French courts.44 Moreover, under article 46, where aliens acquire French nationality, they may adapt their matrimonial regime to the rules of the French Civil Code. If they do not de- clare their intention to do so, the French legal matrimonial regime will apply ipso facto one year after the acquisition of French nationality. 45 Section IV consists of one article. It deals with the status of juridical persons. According to article 47, "The juridical status of a juridical person is determined by the law of the country where the person is domiciled".46 Section V deals with the so-called lois de police et de sareté, that is, generally speaking, police regulations and administrative orders (article 48) ; torts (article 49) ; quasi-contracts, such as undue enrichment and negotiorum gestio (article 50) ; and the publication of facts and acts performed within the territory of a state (article 51) . Following the French tradition, these questions are governed by the lex loci actus or the lex loci delicti.47 44 For cases, see Répertoire de Droit Tnternational, V° Communauté Conjugale et Contrat de Mariage, Nos. 186 et seq. See also Cass . Req. June 4th, 1935, S.1936.1 . 377 ; Rev. 1936, 755; May 5th, 1938, Clunet, 1939, 106 ; Johnson, op. cit ., vol . I, pp. 373 et seq. ; M. Wolff, op . cit ., No . 345 ; Good- rich, op. cit., pp. 385 et seq. ; Leflar, Community Property and Conflict of Laws (1933), 21 Col. L. Rev. 221, at p. 224. 46 The Draft closely follows the project prepared by the Société d'Etudes Législatives in 1929 (see Rev. 1929, p. 219), and by the Comité Français de Droit Intèrnational Privé in 1939 (see Travaux du Comité, 1938-39, p. 70). 46 Although this solution is traditional, it is surprising that the Draft does not contain more explicit and detailed provisions on this subject . There appears to be no difficulty in applying, as a general rule, the law of the central place of business to the "internal" functioning of a juridical person (establishment of the juridical person, meetings, nomination or discharge of managers, etc.) . On the other hand, it does not necessarily follow that the "external" activities of a juridical person must be governed by the same law. Even if one neglects the possible existence of branches that might be sub- mitted to the law of the place where they carry on business, one should not overlook the great variety of problems that might call for specific answers . See : Goodrich, op. cit., pp. 315 et seq. ; Rabel, op. cit., vol . I, pp . 157 et seq.; M. Wolff, op. cit., Nos. 284 et seq. ; Johnson, op. cit., vol . I, pp. 159 et seq.; W. L. Coleman, Jr., Corporate Dividends and Conflict of Laws (1950), 63 Harv. L. Rev. 433 ; Restatement, ss. 163 et seq. ; Loussouarn, Les conflits de lois en matière de sociétés (thesis, Rennes, 1949). 4" Cf., on quasi contracts, Restatement, ss. 452, 453 ; Rabel, op. cit., vol. 3, pp. 361 et seq. ; M. Wolff, op. cit ., No. 481 ; Dicey, op. cit., pp. 754 et seq. ; on torts, Johnson, op. cit., vol. 3, pp. 340 et seq. ; Restatement, ss. 379 et seq.; Goodrich, op. cit., pp. 260 et seq. ; Rabel, op. cit., vol. 2, pp. 227 . et seq. ; M. Wolff, op. cit ., Nos. 470 et seq. ; Dicey, op. cit., pp . 799 et seq.; Falcon- bridge, Torts in the Conflict of Laws (1945), 23 Can. Bar Rev. 309 ; Morris, The Proper Law of a Tort (1951), 64 Harv. L. Rev. 881 ; F. E. Riordan, Choice of Law in Actions ex delicto under Scots Law (1940), 4 Mod. L. Rev. 214 ; Cook, op. cit., pp. 311 et seq. ; C. M. Schmitthoff, Torts Committed Abroad (1949), 27 Can. Bar Rev. 816; Lorenzen, op. cit . (1928), 38 Yale L.J. 169.

1951] A Codification of French Private International Law 737

Section VI refers to various kinds of property and endeavours to adapt the solution of conflict problems to the nature of the legal rights involved in each case. For example, articles 52 and 53 provide that, as a general rule, tangible property is governed by the lex sites (article 52), whereas the law of the debtor's domicile applies to choses in action (article 53, paragraph 1) . The scope of this general principle is however, modified by various exceptions. First, certain tangible movables are not governed by the lex situs, or rather are deemed to be lôcated in a certain place irres- pective of where they may be situated in fact (for example, ships, barges and aircraft). Under article 56, movables in this class are governed by the law of the place of their registration. The second exception comprises another kind of movable, that is, a commercial enterprise (fonds de commerce) . The economic importance of such establishments, combined with the fact that they have a permanent situs, calls for a specific solution, which is given in article 54 : "Commercial enterprises are governed by the lex sites" .48 The final exception applies to various kinds of intangible rights. Article 53, paragraph 2, provides that registered securities are governed by the .law of the place where the register of transfers is kept. Article 53, paragraph 3, states that securities payable to the bearer or to his order. are governed by the law of the place where they are located. Article 55 deals with intellectual, artistic or literary rights, and provides that the law of the place of creation or first publication is applicable to them. . Pursuant to the foregoing principles, article 57 emphasizes that they will apply to possession, ownership, liens, joint ownership, distribution and various measures of publication concerning these rights. Article 58 gives a new and precise rule for the classification of liens or mortgages on movables or immovables : the law of the place where the attachment or execution is sought is applicable here. Section VII covers both successions and donations. This group- ing clearly shows the drafter's intention to follow closely the tradition of French conflict rules. To a very large extent these rules apply the general principles governing intestate succession to wills and donations .49 And, in accordance with them, article 59

4s This solution might be based on some old precedents . See G. R. De- laume, Conflits, p. 182, and compare with that of some foreign laws (e.g., Treaty of Montevideo, 1889, art . 26 ; Argentine Civil Code, art . 11; Royal Baking Powder Co. v. Hersey, 76 F (2d) 645 (C.C.A. 4, 1935) ; French-Amer- ican Convention of October 13th, 1946, art. 3, para . .2(d) ) . 41 This subordination of wills and donations to the principles governing the legal distribution of the estate has been very clearly reaffirmed in recent years by the Cour de Cassation . See e.g. Cass. Req. March 15th, 1933, Epoux

738 THE CANADIAN BAR REVIEW (VOL . XXIX

provides that in cases of both testacy or intestacy the applicable law is (1) the lex situs with regard to immovable property, and (2) the lex loci domicieei with respect to movable property.50 Arti- cle 61 extends this solution to the liability for the debts of the deceased. Nevertheless, article 60 declares that the lex loci domicilii does not apply to commercial enterprises, industrial rights (patents, and the like), ships, barges or aircraft. These various movables continue to be governed by the law made applicable to them by articles 54 to 56. Finally, article 62 reproduces, with a slight modification, the rule already laid down as early as the law of July 14th, 1819, by which a remedy is given to a Frenchman who has been excluded from the distribution of an estate situated abroad." All the provisions of section VII are classical. So also is section VIII on bankruptcy. Article 63 of this section declares that French law is applicable to the bankruptcy of any businessman who is domiciled in France, or maintains in France his ordinary residence, a business establishment or an industrial enterprise, or who merely owns property within French territory. On the other hand, section IX of the Draft contains a new solution for the determination of the law applicable to contracts. Article 64 expressly rejects the so-called doctrine of the autonomy of the parties. The first paragraph of this article provides that the intrinsic validity of a contract is governed by the law specified by the parties, provided they have done so without fraudulent intent. But the same paragraph immediately limits the scope of the rule by compelling the parties to respect the lois de police et de sftreté. In other words, a distinction is made between lex cogens and lex dispositivum and only as to the latter are the parties free to contract. A further reform is to be found in the third paragraph of article 64. The doctrine of the autonomy of the parties as applied by French courts has involved the principle that if a contract is made subject to a particular system of law, that law, as of the

Sureya v. Princesse Ihahim Hilmy, Rev. 1935, 409, note Batiffol. See also Lorenzen, op. cit. (1928), 38 Yale L.J. at pp. 181 et seq., 190 et seq. ao See, e.g., Cass. Civ. June 19th, 1939, Labedan, Rev . 1939, 480, note Niboyet . See also Johnson, op. cit ., vol . 2, pp. 490 et seq., and art . 6. C.C. 51 As construed by French courts, the law of 1819 applies in any case where a French citizen does not obtain from a foreign estate governed by a foreign law the same share as he would have received under French law (had the latter been applicable), regardless of the reason for the difference. Art. 62 abandons this theory, and restores the real intention of the legislature of 1819. Art. 62 expressly limits its scope to the case where a French citizen is deprived, as such, of his rights in a foreign estate : see, Lorenzen, op. cit . (1928), 38 Yale L.J. 188.

1951] A Codification of French Private International Law 739

date of the contract, is regarded as part of its terms. The new rule, making contracts subject to subsequent changes in foreign law, will have important consequences in cases involving international payments and foreign monetary laws, since contracts will now be subject to subsequent changes in foreign laws on these matters.51 Article 64, paragraph 2, is also of great importance: "In cases where the parties have not clearly expressed their intention, contracts are governed by the lex loci conclusionis". The present practice is that, where the parties have not clearly expressed their intention, the courts will determine the applicable law by exam- ining all the facts considered relevant, including even those that arise after the conclusion of the contract. The constant uncertainty produced by the present practice will be eliminated by the new rule. One might suggest, however, that the reference to the lex loci conclusionis is perhaps too general, and that it would have been advisable to foresee some exceptions to this principle in favour of the lex loci solutionis, since there are cases in which the lex loci solutionis appears to satisfy more fully the practical necessities of international intercourse. 53 Nevertheless, by and large, the Draft reaches a satisfactory solution. This last remark is reinforced by the following articles. Article 65, paragraph 1; on contracts made by -mail provides that the contract is deemed to be made in the place where the acceptance is given.54 The second paragraph offers a similar solution for contracts made by telephone : this contract too is deemed to be made in the place where the offeree gives his acceptance . Article 66 provides that the creation of a right on an immovable situated in France, or the transfer of such an immovable, is

a? For references to authors and cases, see G. R. Delatime, op. cit., Rev . 1950, 321 et seq. See also Johnson, op. cit ., vol. 3, pp. 418 et seq. ; Cook, op . cit., pp. 347 et seq. ; Lorenzen, op. cit., pp. 261 et seq.; Goodrich, op . cit., pp. 325 et seq. ; Rabel, op. cit., vol . 2, pp. 430 et seq.; M. Wolff, op. cit., No. 396; Dicey, op. cit., pp. 579 et seq.; F. A. Mann, The Proper Law of the Contract (1950), 3 Inter. L. Q. 60; Morris, The Proper Law of the Contract, A Reply, ibid ., 197 ; F. A. Mann, The Proper Law of the Contract, A Re- joinder, ibid., 597. 53 This is especially true in the commercial field. Most of the legislations apply the lex loci executionis to specific contracts such as agency or stock exchange contracts. See Batiffol, Les conflits en loin en matière de contrats, Nos. 86 et seq. ; G. R. Delaume, Les conflits de lois et le contrat de commission (printed in, Le contrat de commission, Paris, .1949, pp. 349 et seq.) and references to foreign cases and authors. a¢ In a non-conflict case decided by the Chambre des Requotes of the Cour de Cassation (see Cass. Req. March 21st, 1932, D.R. 1933 . 1 . 65) the court applied the rule mentioned above. However, a few weeks earlier the Chambre Civile of the same court (see Cass. Civ. Feb. 2nd, 1932, S. 1932 . 1. 68) adopted the reverse principle, i.e., that the contract is concluded where the offeror receives acceptance. See also Restatement, ss. 314; 317, 319, 326 .

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governed by French law. This rule, which prevailed in the pre- code law, will assimilate the conflict rules of France and many foreign countries, especially the Anglo-Saxon countries. 55 In this respect, article 71, applying the lex sites to the formal validity of a contract dealing with immovable property, should also be mentioned." The next section, section X, is a more general one containing provisions on the formal validity of various acts. As a general rule, the law governing the essential validity of an act also gov erns its formal validity (article 68) . But, this principle is limited by the following statement in the same article : ". . . if there is no prohibition to that effect in this law [the law applicable to the essential validity], it is sufficient to follow the form prescribed by the lex loci actes". This provision limits the scope of the present French conflict rule, which gives the preference to the lex loci actes in deciding the formal validity of any act.57 . The two following articles cover the validity of holographic wills. Article 69 provides that an alien maynot make a holographic will in France if the law governing his capacity prohibits it. On the other hand, if there is a prohibition, article 70, paragraph 2, declares that the alien may make his holographic will according to either the forms of his country or of France. Both these rules codify and clarify the French cases.b$

V. Jurisdiction of French Authorities The general principles laid down in sections I and II of chapter 55 See G. R. Delaume, Conflits, pp. 168 et seq. ; Restatement, ss. 340-341 ; Goodrich, op. cit., pp. 458 et seq. ; Rabel, op. cit., vol . 3, pp . 101 et seq.; M. Wolff, op. cit ., No. 435 ; Dicey, op. cit., pp. 541 et seq.; Johnson, op. cat., vol . 3, pp. 301 et seq. 55 Cf. Restatement, s. 217 ; Goodrich, op. cit., pp. 455 ; Rabel, op. cit., vol . 3, pp. 108 et seq. ; M. Wolff, op. cit., No. 499; Dicey, op. cit., loc . cit. ; Johnson, op. cit., vol. 3, pp. 332 et seq. ; Donaldson, op . cat. (1951), 4 Inter. L. Q. 106. 57 Cf. Johnson, op. cit., vol. 3, p. 332, and art . 7 C.C. ; Restatement, s. 334 ; Goodrich, op. cit., pp. 316 et seq.; Rabel, op. cit., vol. 2, pp. 485 et seq.; M. Wolff, op. cit., Nos. 426 et seq.; Lorenzen, op. cit., pp. 228 et seq ., and (1928), 38 Yale L.J. 166; Dicey, op. cit ., pp. 624 et seq. 58 The second paragraph of art . 70 reproduces the principle affirmed in the famous case, Viditz v. Gesling (Cass. Civ. July 20th, 1909, Rev. 1909, 900; Clunet 1909, 1077) . Cf. Johnson, op. cit., vol. 3, p. 1 ; Restatement, ss. 249, 306 ; Goodrich, op. cit., p. 514 ; M. Wolff, op. cit ., Nos. 559 et seq. ; Dicey, op. Cit ., pp. 534, 819, 827. Art. 69 solves a delicate but heartily debated question of classification, i.e., is the power to use the holographic form of a will a question of "form" or of "capacity"? The Draft adopts the classification "capacity" (see Trib . Civ. Seine, February 19th, 1927, Rev. 1928, 102, note Niboyet) while an old decision of the Cour de Cassation prefers the classification "form" (see Cass. Civ. August 25th, 1847, S. 1847. 1. 712 ; see also, Trib . Civ . Seine, March 23rd, 1944, S. 1944.2. 44).

1951] A Codification of French Private International Law 741

IV of the Draft refer to acts performed by French or foreign authorities (1) in France, and (2) abroad. They may be summarized as follows. The registration of births,and deaths raises no difficulty. Such acts in France must be performed according to French law, what-. ever the nationality of the parties (article 72) . Where the regis tration takes place in a foreign country, a distinction may be made. There is no doubt that where the registration is made abroad by French authorities, acting in their legal capacity, it has the same effect in France as if it had been made there (article 81) . ®n the other hand, registration legally performed by the foreign local authorities is certainly valid (article 76), although it might have to be retranscribed on the registers kept by the French diplomatic agents or consuls (articles 79 and 83) . Similar rules apply; mutatis mutandis, to various other acts authenticated by notaries public or consuls (articles 74, 75, 80 and 84) . The provisions of these two sections on the celebration of marriage are important and need more comment. Whether the celebration of marriage takes place in France or abroad, two cases must be distinguished, depending on whether a French or foreign authority performs the ceremony. Where the marriage is celebrated in France, article 73 provides that aliens may contract a civil marriage in the same manner as French nationals. Under article 75, a marriage celebrated in France by a foreign diplomatic agent or consul, according to the applicable foreign law, is valid where both spouses have the same nationality as the_ acting authority. This provision invites two remarks. A marriage could not be validly celebrated by a foreign authority where only one of the spouses is of the same nationality as the authority, the other being .either French or of a third nationality. In such a case, the celebration of the marriage must be performed by a French registrar according to French law. Secondly, French law provides that, in the absence of a treaty to the contrary, the only foreign officials who may celebrate a marriage in France are diplomatic agents or consuls. Thus the capacity of foreign religious authorities is not recognized, even in cases where the personal law of both spouses requires a religious ceremony.59 Where a marriage between two French citizens, or a French citizen and an alien, is celebrated abroad by a foreign authority, articles 77 and 78 recognize its validity if it is celebrated in ac- s See, e.g., Paris March 1st, 1922, S. 1924.2.- 65, note Audinet, holding that the marriage of two Greek citizens, celebrated in the chapel of the Greek Legation in Paris by a Greek priest, was invalid, as having been celebrated by a person without authority. ,,

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cordance with the lex loci celebrationis.60 But it should be added that, before their wedding, the parties should publish the kind of notice required by article 63 of the French Civil Code. The absence of publication is not, however, sufficient to annul the marriage (article 78), unless the parties have deliberately avoided the obligation.,' French diplomatic agents or consuls or other French authorities so empowered may celebrate abroad the marriage of two French citizens (article 82, paragraph 1) . In countries named by governmental order, they may also celebrate a marriage between a Frenchman and an alien woman (article 82, paragraph 2), but in no circumstances between a French woman and an alien." Finally, section III of chapter IV deals with guardianship and the protection of lunatics (articles 85 and 86) and adoption and legitimation (article 88). Generally speaking, French authorities may perform their functions with regard to these institutions whenever French law governs the parties involved.

VI. Jurisdiction of French Courts The first section of chapter V reproduces and extends to the international field various grounds of jurisdiction recognized by municipal law, such as the rule actor sequitur forum rei (articles 89 to 94).63 Sections II and III show the impact of political considerations on conflict problems. Section II develops the rules already stated in articles 14 and 15 of the French Civil Code, which give a French citizen the privilege of pleading before a French court, either as plaintiff or defendant.64 Since these articles are well known, it is su Art. 77 codifies the French cases based on the construction of art . 170 of the French Civil Code . 61 Art. 78 codifies the French cases based on the construction of art. 191 of the French Code (mariages clandestins) or on the theory of fraude d la loi. 62 This rule is presently found in art . 170 Civ. Code. The Minister of Foreign Affairs proposed to modify the rule and to empower French authorities to celebrate marriages between French women and aliens . However, the drafters rejected the proposed amendment (see Travaux, 1948-49, p. 832) . It was emphasized that, since in most cases the French women would lose her French nationality after her marriage to an alien, the intervention of French authorities was unjustified. Cf. Johnson, op . cit ., vol . 1, pp . 296 et seq., Dicey, op. cit., pp. 769 et seq. ; M. Wolff, op. cit., Nos. 325 et seq.; Rabel, op. cit., vol. 1, pp. 236 et seq. ; Goodrich, op. cit., pp . 351, 354-5. 63 Cf. Johnson, op. cit., vol. 3, pp. 635 et seq., and art. 94 C.P . 64 This is usually referred to as a privilege, but the expression is not entirely justified, at least in the case provided for in art . 15 of the French Code . Art. 14 Fr. Civ. Code is certainly unilateral and grants the French citizen the right of suing an alien before a French court even if there is nib other basis for the jurisdiction of French courts. Art. 15 Fr. Civ . Code is bilateral, and not only grants the French national the privilege of defending himself before a French court, but also allows any alien to sue any French citizen

1951] A Codification of French Private International Law 743

only necessary to specify that they apply to private persons as well as to juridical persons controlled by French citizens (articles 95 and 96),65 but not to an action in rem or a partition of an estate (article 97) . Where the French courts have jurisdiction under articles. 95 and 96, the competent court is the court of the plaintiff's domicile or residence, or the Tribunal de la Seine (article 98) .66 In all cases, it is possible to renounce the benefit of these provisions (articles 95, paragraph 2, and 96, paragraph 2) .67 . Article 99 codifies some recent cases decided by the Cour de Cassation by providing that "The fact that all the parties have a foreign nationality is not an obstacle to the jurisdiction of French courts".68 Section III refers to various jurisdictional immunities. For example, article 100 states that French courts have no jurisdiction over foreign sovereigns, chiefs of State, diplomatic agents and foreign States, except in actions involving movables or immovables situated in France. This denial of jurisdiction is a matter of public policy and, if proceedings are entertained, they may be quashed at the request of the Minister of Justice. 69 On the other hand, the immunity may be. waived by the foreign State or au-

before such a court. Thus, whereas the renunciation of the benefit of art. 14 requires only the express intention of the French citizen, the renunciation of the benefit of art . 15 requires the assent of both the French and the alien parties (see M. Wolff, op. cit., No. 53; Schlesinger, Comparative Law : Cases and Materials (1950), pp. 453 et seq. s5 See G. R. Delaume, Les Conflits de juridictions en matière de sociétés, J. C. P. 1950, I, 849. Cf. Johnson, op. cit ., vol. 3, pp. 450 et seq. ; Goodrich, op. cit., pp. 208 et seq. ; Yielding Place to New: Rest Versus Motion in the Conflict of Laws (1950), 50 Col. Law Rev. 888, and the references to cases and authors ; Restatement, ss. 87 et seq. ; M. Wolff, op. cit., No . 60 ; Dicey, op. cit., pp. 173 et seq. ss The competence of the Tribunal, de la Seine is an innovation. In the present state of the case law, the plaintiff may sue the defendant before any French court, except in an obvious case of abus de droit. The new rule will have the advantage of avoiding any controversy on the'exception . s' Although the Draft does not mention it, the French courts referred to in section I are not only the courts of France but any French courts functioning in the French Union. See an interesting case on French courts functioning in Morocco, Aix,-December 22nd, 1949, J.C.P. 1950, II, 5398, note G. R. . Delaume. sa As formulated in the last century, the principle was that French courts had no jurisdiction in cases where all the parties were aliens . However,. the courts have progressively abandoned this principle and now recognize that the foreign nationality of the parties in itself has no bearing on jurisdiction . See Cass. Civ. S. Civ. June 21st, 1948, Patino, J.C.P. 1948, II, 4427, note P.L.P. ; S. 1948. l.'121, note Niboyet ; Rev. 1949, 557, note Francescakis ; January 17th, 1950, J.C.P. 1950, IV, 41. See also, Paris March . 31st, 1949, J.C.P. 1949, II, 4894, note G. R. Delaume. ss Such an action (recours en annulation pour excès de pouvoir) has been taken on various occasions, See Cass . Vendém_ iaire 3rd/13th, An IX quoted by G. R. Delaume, Conflits, pp. 142 et seq.; Cass. Req. January 23rd, 1933, Rev. 1934, 935; March 18th, 1935, ibid., 684; February 5th, 1936, ibid.; 1936, 451. See also Niboyet, Traité, vol. III, No, 1061.

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thority. This immunity, however, is not absolute. In accordance with the classical distinction of French law between acts of the State in the field of private law (actes de gestion) and acts jure imperii (actes d'autorité), article 101 provides that the immunity of a foreign State may be claimed only with regard to acts jure imperii.70 Moreover, article 102 states that international agencies (except where otherwise provided by treaty) and provinces, towns or municipal agencies cannot, as such, claim immunity. With the nationalization of various branches of industry now going on in various countries, this last provision is especially interesting. Nationalized enterprises enjoy no immunity.71 Section IV, closing this chapter, deals with the intervention of French courts where there are no controversies between the parties, but where the proceeding is administrative in character, such as the appointment or authorization of an administrator or other person to do an act he is not otherwise empowered to do. This is the kind of jurisdiction usually exercised by a probate or surrogate court in common law countries. Article 103 provides that the necessary authorization, appointment or homologation must be granted by a French court whenever the substance of the case is governed by French law.72

VII. Recognition and Enforcement in France of Foreign Judgments and Arbitral Awards Before any detailed appreciation of the rules spelled out in the Draft is attempted, it should be emphasized that the expression "recognition and enforcement" is used here as the equivalent for what in French law is a unitary concept. The French procedure of exequatur aims to give a foreign decision full recognition and full enforcement simultaneously. The exequatur is granted to the for-

'° See Cass. Req. February 19th, 1929, Rev. 1929, 260 ; S. 1930 . 1. 49, note Niboyet ; December 15th, 1936, Rev. 1937, 710 (concerning the commercial agencies of the U.S.S.R.) . See the attitude of the English courts in Krajina v. The Tass Agency, [194912 All E.R. 274. " See with regard to one of the federated states of Brazil, Trib . Civ . Seine, March 2nd, 1948, D. 1949, 428, note Colliard, and numerous references to other cases. In respect of nationalizations, see Roblot, La politique des nationalisations et le Droit international privé (Droit Social, 1949), p. 43, No. 20 ; Savatier, Les nationalisations en droit international privé (report to the Comité Français de Droit International Privé) Travaux 1946-48, pp. 47 et seq. ; G. R. Delaume, op. cit ., J.C.P. 1950, I, 849, Nos. 22 et seq. ; H. P. de Vries and B. H. Hoeniger, The Post-Liberation Nationalizations in France (1950), 50 Col. L. Rev. 269 ; Hans Hofmann v. Jiri Dralle Narodni Sprava Podmokly (1950), 3 Inter. L. Q. 576. 72 This kind of jurisdiction is called juridiction gracieuse . Its nature has provoked discussions . See, Niboyet, Traité, vol. VI, Nos. 1952 et seq. ; Batiffol, Traité, No. 747.

1951] A Codification of French Private International Law 74'5

eign decision as such, and there is, in French law, no new cause of action. The judgment of exequatur is not a new decision, but merely recognizes the regularity of the foreign judgment so as to give it, in France, the same effect as a French decision (article 108) . The Draft develops these principles by providing that the French courts can only grant or refuse the exequatur (after having made the inquiries that will be discussed in a moment) ; they can not modify the foreign decision in any way (article 106, 5°, paragraph 2) . The effective date of the foreign judgment, to which the exequatur is granted, is determined- by the foreign procedural law, instead of the time of the granting of the French exequatur (article 109). These general principles make it possible to summarize the technicalities contained in section I. Article 104 emphasizes the rule that, in France, before the exequatur a foreign judgment has only probative force and cannot be considered as a res judicata or as entitled to execution. This rule applies to every decision of a foreign civil or commercial court. It also applies to the decision of a foreign criminal court but only as to the part of the judgment; if any, granting compensation for loss (article 105). In all cases, the French -judge, before granting the exequatur, must verify that certain conditions have been fulfilled (article 106) . He must satisfy himself of the jurisdiction of the foreign court according to both the French conflict rule and the procedural law of the foreign country. He must also determine that the proper law has been applied and the regular procedure followed, and that the case' is not pending before, or been already decided by a French court. Where all these matters are satisfactorily determined, the judge must make a general evaluation of the foreign decision on the facts, and the legal principles involved, although he is not required to go into the merits in detail. Finally, he must consider whether French public policy is an obstacle to the granting of the exequatur. Another exception, based on the principle of reciprocity, might also hamper the recognition and enforcement of foreign judgments. Article 107 provides : "A judgment given in countries where French decisions are not recognized- and enforced is not enforceable in France". Lack of reciprocity is ascertained by reference to a joint order of the Minister of Justice and the Minister of Foreign Af- fairs. The necessity for reciprocity, which is not generally required under the present French practice, may be more easily defended in the field of the conflict of jurisdictions than in the conflict of laws. Various foreign laws require it,73 and the new French rule

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might be a useful lever to obtain the enforcement of French decisions abroad . But one can again express some doubt about the merits of such a rule. On the other hand, article 110 is to be .welcomed unreservedly . It adopts a new and very modern solution in providing that "in cases where the case decided abroad would in France fall under the jurisdiction of an administrative court, the Conseil d'Etat has exclusive jurisdiction to decide, upon the exequatur of the foreign decision".,, For the recognition and enforcement of foreign arbitral awards, section II contains a body of provisions very similar to those of section 1, especially with respect to verification of the competence of the arbitrator and of the legal principles applied by him (articles 111 to 115) .

VIII. Conclusion The conclusion to be derived from the foregoing brief study is that the Draft is at once very modern in some respects and extremely conservative in others. The modern element is its struc- ture and the distinction it makes between three categories of con- flicts : (1) conflict of laws stricto sense, (2) conflict of authorities, and (3) conflict of jurisdictions. Some substantial provisions, such as those on the domicile of married women, the general principles of the conflict of laws and the enforcement of foreign administrative judgments, also contribute a modern air to the Draft. But the Draft is extremely conservative in its almost constant reliance on existing case law. It reproduces most of the classical and historical principles of French private international law. The stress throughout this article on the historical background of the Draft was intended to show the impossibility of understanding the codification now in the making without placing it in the light of precedents from the pre-code law. 73 See the German Code of Civil Procedure, s. 328, No. 5; the English Foreign Judgments (Reciprocal Enforcement) Act, 1933 (23 Geo . V, c. 13, s. 1) ; the American rule laid down in Hilton v. Guyot (1895), 159 U.S. 113. See, on the contrary, the German law of January 24th, 1935 (Rev. 1935, 905), art . 2. 74 For the first time in the world, a national conflict rule contains provisions for the enforcement of foreign administrative decisions . It is not astonishing that the innovation should be made in France. The importance of administrative law in that country is well known (see Schwartz, A Common Lawyer Looks at the Droit Administratif (1951), 29 Can. Bar Rev. 121, and Schwartz, The Administrative Courts in France (1951), 29 ibid. 381) . Although the new principle laid down in art . 110 is limited by the exigency of reciprocity (art. 107), it should be emphasized that the adaptation of the procedure of exequatur to the enforcement of foreign administrative decisions is an important advance. It will help achieve the desirable collaboration of French and foreign administrative authorities .

1951] A Codification of French Private International Law 747

Moreover, the proposed codification remains limited in its scope. It simply codifies the principles that may be safely derived from case law. The drafters have recognized that various questions cannot yet be codified because of the uncertainty or the lack of case materials. Consequently the _Draft aims to state a body of_ rules sufficiently general to facilitate the solution of private international law problems rather than to elaborate a final and detailed code that could hamper the evolution of case law.

Recent judicial Appointments Honourable William Arthur Ives Anglin, a judge of the King's Bench Di- vision of the Supreme Court of New Brunswick, to be a judge of the Court of Divorce and Matrimonial Causes of the province of New Brunswick . John S. Latchford, Esquire, of the City of Cornwall, to be a junior judge of the County Court for the county of Wentworth, in the province of Ontario, and also a local judge of the High Court of Justice for Ontario . Honourable - Mr. Justice James D. Hyndman, formerly a justice of appeal of the Court of Appeal for Alberta, to be a deputy judge of the Ex- chequer Court of Canada, under the provisions of section 8 of the Exchequer Court Act, for a term of four months commencing September 1st, 1951 . Honourable Mr. Justice Sidney A. Smith, formerly a justice of appeal of the Court of Appeal for British Columbia, to be a deputy judge of the Ex- chequer Court of Canada, under the provisions of section 8 of the Exchequer Court Act, for a term of four months commencing September 1st, 1951 . His Honour Joseph Henry McFadden, Judge of the District Court of the Judicial District of Arcola, in the province of Saskatchewan, to be Judge of the District Court of the Judicial District of Melville. John Ross MacDonald, Esquire, K.C., to be Judge of the District Court of the Judicial District of Arcola, in the province of Saskatchewan . Ralph Maybank, Esquire, K.C., to be Judge of the Court of King's Bench for Manitoba. Louis-Philippe Cliche, Esquire, K.C., to be a puisne judge of the Superior Court for the districts of St. Francis and Bedford, in the province of Quebec . Paul Ste. Marie, Esquire, K. C., to be a puisne judge of the Superior Court for the district of Hull, Labelle and Pontiac, in the province of Quebec . Wilfred Judson, Esquire, K.C., of the city of Toronto, to be a judge of the Supreme Court of Ontario and a member of the High Court of .Justice for Ontario and ex officio a member of the Court of Appeal for Ontario . J. L. McLennan, Esquire, K.C., of the city of Toronto, to be a judge of the Supreme Court of Ontario and a member of the High Court of Justice for Ontario and ex officio a member of the Court of Appeal for Ontario .