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2001 Annual Meeting Wednesday, January 3, 2001 - Saturday, January 6, 2001 San Francisco, California |
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2001 Annual Meeting Wednesday, January 3, 2001 - Saturday, January 6, 2001 San Francisco, California |
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Friday, January 5, 2001, 10:30 a.m.–12:15 p.m. Section on Conflict of Laws The Role of Comparative Law in the Conflict of Laws |
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"Comparative Law and Conflict of Laws - Allies or Enemies? 1. I want to thank Professors Juenger and Reimann for their invitation. But it does place me in a rather delicate situation. In much of his scholarship, Professor Juenger attacks, very convincingly, the opportunity of the traditional European choice of law method (especially insofar as it may lead to the judicial application of a foreign legal system - this « defies common sense and experience »1). And Professor Reimann strongly advises American comparative law scholars to step out of the European shadow. Nevertheless, I shall now undertake to deal with the role of comparative law in the conflict of laws, from the European perspective. When I was asked to speak at this conference, I was given a complete freedom as to the topic. So I have a very broad title: "Comparative Law and Conflict of Laws - Allies or Enemies? 2. Comparative law and conflicts of laws are profoundly different disciplines, but in many ways they are closely related. The system of conflicts is dependent on the study of comparative law and thus gives comparative law its practical legitimacy. This is particularly true in Europe, where lex loci ordinarily is not assumed to apply. European judges often must apply foreign laws, even ex officio. To this effect, an understanding of foreign laws is of primary importance. Such an understanding may also be necessary to apply the conflicts methodology, even if, eventually, judges apply the lex fori. For example, the doctrine of renvoi requires an understanding of foreign choice of law rules while characterization, adaptation and public policy necessitate an understanding of foreign law’s internal rules. Moreover, in order to apply certain conflicts rules - in particular those which are content -oriented -, we need to understand all the foreign laws that are designated by such rules. Comparative law is also needed when reforming conflicts rules. For all these reasons, there can be no conflict of laws without comparative law. 3. What I want to stress today is that, for all of their interdependence, conflicts of laws and comparative law are almost diametrically opposed in their approaches to legal pluralism. Conflict of laws embraces pluralism and seeks to deal with it, by designating which of several competing legal rules is the most appropriate to apply. By contrast, one of comparative law’s, major goal is to eradicate pluralism through international unification or at least international harmonization. If this goal were realized - and pluralism eliminated - there would be no « conflicts » among laws, and no need for any choice of law system. As we all know, unification is far off, and there are many obstacles to achieving it. The unification movement in private law is in crisis. (Actually, this crisis has extended to the Hague conventions dealing with choice of law rules as well as to the draft Hague Convention on jurisdiction and enforcement of foreign judgments). For this reason, conflicts rules remain necessary in all fields of private law: contracts, torts, family law, etc… 4. As regard international commercial contracts, unification has been relayed by harmonization, with new codifications, such as the Unidroit principles or the Principles of European Contract Law. In Europe, this has led to an ongoing discussion between those who want to unify substantive law (European private law) and those who prefer unification of conflicts rules. While the debate becomes more and more pregnant, it takes the form of an opposition between two methods. It is internationalism versus conflictualism or unity versus diversity. Up to now, this opposition has been limited to a specific field of the law. Indeed, the idea of a European code mainly concerns contract law. My purpose today is to show that this opposition between internationalism and conflictualism should be reconsidered, from a much wider perspective. This new reflection is called for by a new phenomenon, which originates in public law but now affects all fields of private law, including conflicts of laws. It is called for by the development of international protection of human rights. 5. The protection of human rights, more often called fundamental rights, has become essential in all modern occidental legal systems. In Europe, it is embodied by the European Convention on Human Rights, as well as by the European Charter on fundamental rights, proclaimed in Nice on December 7, 2000. At the beginning, fundamental rights were solely to be a matter of international public law. They now have invaded all private law matters. This has lead to the constitutionalisation or to the publicisation of private law. At first sight, one could think that the impact of fundamental rights on conflicts of laws is too limited to deserve much attention. Indeed, most European conflicts rules are neutral, or « blind ”: they designate the law of one of the involved legal systems regardless of the outcome that such a choice might produce for the parties. They also are indirect and provide for a method, not a substantive solution. For these reasons, they do not seem susceptible of violating fundamental rights. Yet, as early as 1971, the German Constitutional Court held that fundamental rights had to be taken into account in conflicts of laws.2 Germany and Italy have both modified their conflicts rules which, in favoring the law of the husband in family matters, violated the constitutional principle of equality between spouses.3 In this respect, fundamental rights lead to international harmonization of the conflicts of laws and may contribute to recreate this famous jus commune which is supposed to have once existed in Europe. However, this kind of influence is still quite marginal. (It could become more important, especially if it were to lead to the abolition of rules of jurisdiction based on nationality -such as articles 14 and 15 of the Code civil which grant exorbitant privileges to French litigants-). What I want to point out here is somewhat different. A European judge, before applying a foreign law, must now make sure that the concrete application of this law does not violate a fundamental right protected by the European Convention on Human Rights. Actually, at least in theory, this verification is necessary as regard every international text which protects human rights. It could even extend to mere declarations with great persuasive authority (such as the United Nations declaration on Human Rights of 1948) for as soon as fundamental rights are concerned, the traditional hierarchy of norms tends to be forgotten. 6. A recent example can be found in French case law: on several occasions, the French Cour de cassation has referred to the fundamental principle of equality between men and women, as consecrated by the European Convention on Human Rights.4 This reference has led the French judges to reject the Moroccan law which, at that time, permitted the husband to repudiate his wife. The fact that this law had been designated by virtue of conflicts rules contained in a bilateral convention binding France and Morocco - which had not ratified the ECHR - was considered irrelevant. This shows that what matters most is not the traditional hierarchy of norms but the importance of the values at stake. This also shows how far-reaching is the supremacy of international law protecting fundamental rights: not only does it prevent judges from applying a law of a country which has not ratified the ECHR; but it also leads to the rejection of the conflicts rule that should have been applied on the basis of a binding bilateral convention. 7. It is not yet clear whether French judges are directly applying fundamental rights, on the ground that they are of a particularly mandatory nature, or whether they are applying the public policy principle after designation of the foreign law by the conflicts rules of the forum. In the first case, the superseding effect of fundamental rights would be very radical. Indeed, it would lead, not only to the rejection of the foreign law that does not comply with the occidental conception of what fundamental rights are, but also to the rejection of the conflicts of laws method. If direct application of fundamental rights were privileged, the end-result would be that foreign laws which do not share the same basic principles (such as equality between spouses) would be automatically set aside. In Germany, a more refined approach has been adopted: the public policy principle applies, but its requirements can vary according to the importance of the right of which protection is sought before the courts. This is achieved either by means of a special public policy clause or through flexible evaluation of connections with the forum state.5 Recent case-law of the European Court on Human Rights shows how fast fundamental rights are expanding in all branches of the law. One could therefore argue that the blooming of fundamental rights in all fields of private law is not only reducing the use of foreign law in conflict of laws; it could very well lead to the demise of the conflict of laws methodology.6 8.Obviously, the intrusion of fundamental rights in conflicts of laws interferes with its traditional objectives. That is: coordination of systems, pluralism and tolerance towards foreign laws and foreign values. In sharp contrast, fundamental rights protect such primordial values that they are considered universal. This universality is claimed for, both on a substantial point of view (everything is becoming a human right) and on a geographic point of view (no country can violate human rights). Of course, there is a big gap between such ambitions and reality. Yet, due to their considerable force of expansion, fundamental rights threaten conflictualism in its very essence. To some extent, the process is comparable to the one studied above as regards international commercial contracts. Indeed, in both cases, the rules have a transnational origin and state large principles (such as good faith or child’s interest) which leave the judges with large discretionary powers. But it seems to me that the expansive force of fundamental rights is much stronger for the values at stake are essential and the category is wide open. 9. The interference of fundamental rights in the conflicts process seems all the greater where non-occidental laws are involved, especially, in family matters, when the law of a Muslim country is concerned. One could think that, on the contrary, in those countries that share occidental values, the rise of fundamental rights, far from threatening the existence of conflictualism, permits, to a certain extent, harmonization of conflicts rules. Italy and Germany have already shown the way. This assertion is only partly true. Even within Europe, the reference to the ECHR can provoke radical reactions, in complete contradiction to the goals of conflicts and jurisdiction rules. Once again, a recent French case provides an illustration. The French Cour de cassation has referred to article 6 of the ECHR (right to a fair trial) in order to prevent two decisions of the High Court of Justice of London from producing their effects in France. The argument was that the requirement of bail in anticipation of costs of the judicial proceedings in England hampered access to justice. It was thus decided that, because article 6 of the ECHR had been violated, those decisions did not meet with the public policy requirement of article 27.1 of the Brussels convention.7 In March of the preceding year, the ECJ has confirmed this orientation. It held that fundamental rights based on the ECHR, especially the right to a fair trial based upon article 6 of this convention, are integrated in the Brussels Convention.8 10. Fundamental rights have become a new juridical category, the limits of which are ill defined, and the effects of which are radical. They contribute to blur the distinction between private law and public law. More specifically, they overturn the traditional modes of reasoning, including conflictualism, in particular because they claim to be primordial and universal. This is why, at least with respect to their way of dealing with pluralism, they remind of the opposition between the two different logics which underpin conflicts of laws and comparative law when dealing with pluralism. A new equilibrium must be found, and this implies to be less ambitious. With respect to comparative law and fundamental rights, this means abandoning the quest for universality. As far as conflicts of laws is concerned, it may be necessary to reconsider some of its goals and to question such concepts as « international decisional harmony» when only partial internationality can be reached. 11. In conclusion, it seems to me that the general claim for more comparative law in drafting, applying and interpreting new choice-of -law rules is important. However, in this respect, the role of comparative law is not specific; the same could be said of any other discipline, for one always takes profit of a comparative insight. The real challenge lies elsewhere. It consists of establishing a new relationship between comparative law and conflict of laws; one that transcends the opposition between conflictualism and internationalism and that integrates the protection of fundamental rights. Comparativists’ task, for tomorrow, is twofold: while taking part in the process of elaborating new texts, for international situations, they should remember that unification must yield ground to other more flexible methods, such as harmonization. Second, they must identify all the different sources of law. The conflictualist’s responsibility will be to draft new conflicts rules, aimed at providing guidelines to solve some new types of conflicts: conflicts between a foreign law and fundamental rights as well as conflicts between rules emanating from conflicting international conventions. In short, conflicts of law shall have to deal with all sorts of conflicts that may arise among these new sources of laws, which comparatists have identified or even created. Then, perhaps, comparative law should not be viewed as a threat for conflictualism. The reason is not that internationalism only affects some areas of the law, in particular contracts, while others remain of a purely national nature. Indeed, as I have shown, this is not the case. The reason is that, even in the unified fields of law, there is a need for conflict rules.
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