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La loi étrangère dans le contentieux judiciaire européen

Abstract : The European Union law and the European judicial area open a new and perfectly modern perspective on application of foreign law in the national legal order. By stimulating free movement of persons, goods, services and capitals, the EU law multiplies the occasions for international litigation potentially governed by foreign law. As a supranational legal order, the EU law primes over the national legal systems and may thus exercise a tangible influence on the way the national authorities treat foreign law in crossborder proceedings. The particular nature of the EU law gives rise to the following question: May the influence of the EU law on private international law go beyond the conflict-of-law rules and affect the law applicable according to them? The present analysis shows that this question has recently acquired a great significance for the European institutions, since the adoption of EU conflict of law rules (i.e. Rome I, Rome II and Rome III Regulations, proposal for Rome IV Regulation, etc.). In order to ensure fair functioning of such regulations and guarantee the free movement principle, it appears necessary to conceive a common approach to application of foreign law in Europe. The present analysis assesses the EU law's potential to harmonize or to unify the judicial treatment of foreign law within the Member States. To that effect, it combines the study of the national law of each of the 27 Member States with a supranational analysis of the foreign law theory. Within the national perspective (Part I), the study starts with a research of the theoretical foundations of treatment of foreign law in the different legal cultures in Europe. The quest for the underlying theoretical principles helps to better understand the empirical and practical reasons for the "optional" (soft-law-like) treatment of foreign law in many European jurisdictions. The analysis of the status granted to foreign law in each of the Member States is completed with considerations for the unified procedural treatment of such law within the European judicial area. In the end, the continuous crossing of the national and the supranational perspectives leads the author to conclude on the necessity and the feasibility of a "uniform legal regime of foreign law for the European Union". The perspective of "communitarization" of foreign law gives a new, supranational dimension to formerly classic issues related to the subject (i.e. the duty of ascertainment of foreign law, the distribution of 5 roles between the parties and the judge to that effect, "proof" of foreign law by the parties, legal remedies to failure to ascertain the applicable law or to errors committed while applying it). Within the supranational perspective (Part II), the research explores the opportunity, the possibility and the feasibility of a "uniform regime of foreign law treatment" in Europe. It proposes a draft of such a regime, on the basis of the existing EU legal provisions and most commonly shared principles of national law. The content of the draft is based on the principle of free movement of persons. The analysis shows that this core principle provides a solid justification for making application of foreign law in the EU optional and utterly dependent on the will of the parties. Accordingly, foreign law shall only be applied, if it corresponds to the parties? uncontested interests and if it does not hinder their cross-border activity. The supranational perspective on the subject is thus used to demonstrate that application of foreign law in Europe suffers a progressive loss of social value. Hence, the "communitarization" of foreign law legal regime allows to imagine the future of the European cross-border justice as foreign-law-free.
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Submitted on : Thursday, March 29, 2018 - 12:27:24 PM
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Daria Solenik - Lhuillier. La loi étrangère dans le contentieux judiciaire européen. Droit. Université de Lorraine, 2012. Français. ⟨NNT : 2012LORR0392⟩. ⟨tel-01749778⟩



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