The objectives of international private law
Globalisation, the importance of international migratory flows and the free movement of people, services, goods and capital within the internal market of the European Union, lead to situations which are linked to several legal systems, for which prerogatives must be clarified.
This is the objective of international private law. By implementing conflict of jurisdiction rules and conflict of law rules, private international law makes it possible to determine the competent jurisdiction in an international dispute and the applicable law. This branch of law is intended to intervene when a private situation is international, that is to say when it presents a foreign element. The foreign element may be the nationality of one or more parties, the place where the damage occurred, the place of the registered office of a company, the place of residence of the parties, etc. The situation must also concern relations between private persons (whether they are legal persons or natural persons) or between countries when they act as private persons.
The core of private international law consists of the rules of conflict of jurisdictions (which make it possible to determine the jurisdiction of a judge in an international dispute and to determine the conditions for the recognition and enforcement of foreign decisions) and the rules of conflict of laws (which make it possible to determine the law applicable to a dispute that may be linked to several legal orders).
As for the sources of private international law, they have been significantly updated in the light of the Europeanisation of private international law and the expansion of international conventions on private international law, in particular those drawn up within the confines of the Hague Conference on Private International Law.
The implementation of the rules of private international law therefore supposes a perfect mastery of the European and international sources of law (European Union regulations, international conventions) and of the rules allowing their hierarchy between them and with the internal sources of law (law, jurisprudence). A good knowledge of the jurisprudence of the European courts (European Court of Justice and the European Court of Human Rights) is also essential to allow a good application of European and domestic sources of private international law.
Access to foreign law
When conflict of law rules indicate a foreign law, it is necessary to be able to establish its content in order to complete the reasoning of private international law and provide a substantive solution to the dispute.
Before the judgement, research into the content of foreign law is the responsibility of the judge and/or the parties. Depending on the relevant legal system, it is advisable to verify who bears this burden of proof, in accordance with the applicable rules of private international law.
Means are made available to judges and other legal professionals to access the content of foreign law, but these tools warrant improvement:
- the London Convention on Information on Foreign Law of 7 June 1968 established under the aegis of the Council of Europe
Through this convention, Member States undertake to provide each other with information on the content of their civil and commercial law and on civil and commercial procedure, as well as the rules relating to judicial organisation.
This convention applies to numerous countries: Albania, Aruba, Austria, Azerbaijan, Belarus, Belgium, Bulgaria, Costa Rica, Cyprus, Czech Republic, Denmark, Estonia, Finland, mainland France and the overseas territories, Georgia, Germany, Greece, Hungary, Iceland, Italy, Jersey, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Mexico, Moldova, Norway, the Netherlands, Poland, Portugal, Romania, Russia, Serbia and Montenegro, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, the United Kingdom and Ukraine.
- Investigative measures: subject to what is provided for by applicable law, the judge may order a consultation or an expert assessment.
- The parties’ support: in this case, the parties are invited to provide the foreign text in a reliable and authentic version accompanied by a translation that also (?) conveys the foreign decisions that may be applicable.
The judge must place these sources within the framework of the hierarchy of norms applicable in the foreign legal system and must supplement them if necessary (by other sources of law such as case law or doctrine?).
In France, the parties may produce a certificate of custom law to prove the content of foreign law. The certificate of custom law is in principle drawn up by a consular authority or a lawyer with excellent knowledge of the foreign law concerned. This makes it possible to establish the content of a foreign law (redundant?). The certificate generally only contains very general information and only partially enables the judge to establish the content of foreign law. When the certificate of custom law is drawn up for remuneration by a lawyer or a university professor, it is often supported by precise case-law references, but this then raises the question of the neutrality of its content.
In this case, the parties are invited to provide the foreign text in a reliable and authentic version accompanied by a translation, as well as any foreign decisions that may be applicable.
The judge must place these sources within the framework of the hierarchy of norms applicable in the foreign legal system and must supplement them if necessary (by other sources of law such as case law or doctrine).
In France, the parties may produce a certificate of custom law to prove the content of foreign law. The certificate of custom law is in principle drawn up by a consular authority or a lawyer with excellent knowledge of the foreign law concerned. This makes it possible to establish the content of a foreign law. The certificate generally only contains very general information and only partially enables the judge to establish the content of foreign law. When the certificate of custom law is drawn up for remuneration by a lawyer or a university professor, it is often supported by precise case-law references, but this then raises the question of the neutrality of its content.
International child abduction
We talk about international child abduction when a child is unlawfully removed or kept in a country that is not their country of habitual residence.
The removal or detaining of the child is unlawful if 1) it takes place in violation of a custody right attributed to a person, institution or other body, alone or jointly, by the law of the country in which the child had their habitual residence immediately before their removal or non-return, and 2) at the time of the removal or detention, this right was effectively exercised, alone or jointly, or would have been exercised in the absence of the displacement or non-return.
International family mediation
Family mediation is a structured process in which an impartial mediator enables members of a family in crisis, usually parents, to talk about their conflict constructively. The goal is to resolve the conflict through communication and interaction and to discuss how they will continue to raise their children, in order to find solutions that work for all family members who are affected. International family mediation aims to resolve a family dispute involving at least two countries. For example, this can happen when parents separate because of a conflict and one of them moves to another country. International family mediation places the needs of children at the centre of the process. The aim is to seek solutions that can ensure the well-being of children in accordance with their rights recognised by the United Nations Convention on the Rights of the Child.
International separation and divorce
Separation or divorce proceedings are initiated in order to undo or dissolve the conjugal relationship of an international couple, under certain conditions governed by the respective national laws. Separation and divorce are usually decided by a court, but it is also possible to turn to extrajudicial procedures when the national legal order so provides.
International registered marriages and partnerships
There is a variety of family models that may regulate the personal relationship between two people, of the opposite sex or of the same sex, whenever an international element is at stake. Access to civil marriage or to institutions such as civil unions, registered partnerships or de facto unions, as well as the rights and duties which derive from them, differ according to national rules and practices.
Forced and sham marriages
A forced marriage is a marriage without consent, which infringes on the personal decision of whether or not to marry. A sham marriage is generally considered a marriage of convenience, for example for residence or financial reasons, but it can also cover up abusive or exploitative relationships and forms of human trafficking.
International parental responsibility
The concept of cross-border parental responsibility covers the rights and duties towards the child and their property and generally includes aspects such as custody and visitation rights, whenever an international element is involved. Custody concerns the education, instruction and well-being of the child, as well as the determination of their place of residence, and may be exercised jointly by the parents or only by one of them. Visitation rights include the possibility of taking the child to a place other than their usual residence for a limited period.