On February 20, 2007, the French supreme court for private matters (Cour de cassation) held in Avianca that foreign judgements which had applied another law than the one that a French court would have applied could be recognised or enforced in France.

The case overrules a forty year old precedent, the famous Munzer decision, which had laid down the modern conditions for the enforcement and the recognition of judgements in France. In Munzer (1964), the Cour de cassation had ruled that five conditions, which were soon to be reduced to four (in the Bachir case in 1967), had to be fulfilled. First, the foreign court had to have jurisdiction from the French perspective. Second, the foreign court had to have applied the law that the French choice of law rule designated. Third, the foreign judgement should not be contrary to public policy. Fourth, the foreign judgement should not have been obtained for the sole purpose of avoiding the application of the applicable law (Fraude à la loi).

In Avianca, the Cour de cassation holds that there are now three conditions only for the recognition of foreign judgements, and that the application of the law designated by the French choice of law rule is not one anymore. The three conditions which remain unchanged are the jurisdiction of the foreign court, the compatibility with French public policy, and the absence of fraude à la loi.

The Cour de cassation does not give much details on the facts of case. I understand, and am happy to be corrected, that American companies (North American Air Service and Avianca) and Columbian companies (Avianca, Helicopteros Nacionales de Columbia and Aeronautico de Medellin Consolida) had sued a former director of one of the Columbian companies before a federal court in Washington D.C. On August 27, 1993, the U.S. Court ordered the former director to pay 3.9 millions dollars, plus interest. The former director moved to France, where the plaintiffs sought to enforce the judgement. The director argued against the enforcement because the U.S. Court had applied U.S. law to the issue of the liability of a director, when the French choice of law rule provides that the law of the company governs. The Cour de cassation rules that the law applied by the foreign court is irrelevant.

Avianca makes it clear that the new conditions are only relevant absent any treaty regulating the recognition of foreign judgements. European regulations and conventions are obviously such treaties.

The evolution had long been advocated by the majority of French writers. To many, it seemed weird to accept in principle the recognition of foreign judgements while making it a condition that they would have ruled exactly like a French court. Also, it seemed that the main purpose of the condition was to avoid fraude à la loi, which has always been a separate and autonomous condition.

The new issue of the Journal of Private International Law, Volume 3, Issue 1 (April 2007), will be published shortly. The contents are (click on the links below to view the abstract):

Canada and the US Contemplate Changes to Foreign-Judgment Enforcement by Vaughan Black (Professor, Dalhousie Law School, Halifax)

The Rome I Proposal by Ole Lando & Peter Arnt Nielson (Copenhagen Business School)

Third-Country Mandatory Rules in the Law Applicable to Contractual Obligations: So Long, Farewell, Auf Wiedersehen, Adieu? by Andrew Dickinson (Consultant, Clifford Chance LLP; Visiting Fellow in Private International Law, BIICL)

Choice-of-Law Rules for Electronic Consumer Contracts: Replacement of The Rome Convention by the Rome I Regulation by Lorna Gillies (Lecturer in Law, University of Leicester)

Parties’ Choice of Law in E-Consumer Contracts by Zheng Tang (Lecturer in Law, University of Aberdeen)

Choice of Law in Maritime Torts by Martin P. George (PhD Candidate & Postgraduate Teaching Assistant, University of Birmingham)

The European Convention on Human Rights and English Private International Law by Ben Juratowitch (DPhil candidate, University of Oxford)

Child Abduction: Convention “Rights of Custody” – Who Decides? An Anglo-Spanish Perspective by Kisch Beevers (University of Sheffield) & Javier Peréz Milla (University of Zaragoza)

Book Review: J. Meeusen, M. Pertegàs and G. Straetmans (eds) Enforcement of International Contracts in the European Union: Convergence and Divergence between Brussels I and Rome I by Lorna Gillies (Lecturer in Law, University of Leicester)

For those who haven’t yet subscribed to the Journal of Private International Law, subscription information can be found here. In addition to the Journal itself, you will also receive online access to all of the articles (current subscribers will be able to download the articles linked to above straight away).

On Tuesday 24 April 2007, the Annual Bond Pearce Lecture in European Law at the University of Southampton, School of Law, will be delivered by Alexander Layton QC, 20 Essex Street. Its title is:

The Growth of European Private Law: Some Reflections on the 50th Anniversary of the Treaty of Rome.

Time and Venue: 5.45 pm; Main Lecture Theatre, Room 1027, Nightingale Building, Highfield Campus, Southampton (UK).

Please visit this Website for more details, or contact: Sotirios Santatzoglou, School of Law, Southampton University, Tel. 023 8059 5333.

Jorge A. Vargas (University of San Diego – School of Law) has posted “Conflict of Laws in Mexico as Governed By the Rules of the Federal Code of Civil Procedure.” Here’s the abstract:

Since NAFTA entered into force in 1994, international litigation between the United States and Mexico has grown- and continues to grow-exponentially. In recent years, the application of foreign law in California and Texas has become equivalent to Mexican law, and soon other states will follow suit, including Arizona, New Mexico, Florida and Illinois.

Prior to 1988, the Mexican legal system was not legally equipped to consider the application of foreign law in that country. In other words, until that year, only Mexican law was applied by Mexican judges in Mexican courts. At the same time, Mexico’s legal system virtually lacked legal provision in its codes and statutes that allowed for the conduct of certain procedural acts requested by foreign judges (i.e., American judges) such as serving summons, taking evidence, recording depositions and enforcing judgments in that country. However, all of this changed in 1988 when President Miguel de la Madrid made the necessary legislative amendments both to the Federal Civil Code and to the Federal Code of Civil Procedure with the addition of Book Four titled: International Procedural Cooperation.

This article discusses in detail the principles and rules governing the conduct of International Judicial Cooperation between Mexico and other countries, notably the United States, involving service of summons, taking of evidence, and enforcement of foreign judgments and arbitral awards by means of letters rogatory with the assistance of Mexico’s Central Authority (i.e., Secretaría de Relaciones Exteriores (SRE) or Secretariat of Foreign Affairs) or that of the members of Mexico’s consular service. These principles and rules are found in Articles 543-577 of Mexico’s Federal Code of Civil Procedure.

Download the article from here.

A very interesting report of the working sessions of the 16th Annual meeting of the European Group for Private International Law (GEDIP-EGPIL), held in Coimbra on 22-24 September 2006, has been recently published on the new site of the Group. The summary (in French) has been compiled by N. Ascensão Silva, R. Pereira Dias and G. Rocha Ribeiro (University of Coimbra).

Here’s a list of the matters discussed by the Group, as organized by the authors (in brackets the rapporteurs; our translation and free adaptation from French):

I. EC Private International Law and Third States:

1. The external competence question (C. Kessedjan);
2. The revision of the Lugano Convention (A. Borrás).

II. The Commission’s “Rome III” Proposal and the Green Paper on matrimonial property regimes:

1. The Rome III Proposal (A. Borrás) [on the Green Paper on applicable law and jurisdiction in divorce matters, see also the report of M. Struycken presented at the 2005 meeting (Chania) of the Group and the draft articles on applicable law discussed at the 2003 meeting (Wien)];
2. The Green Paper on matrimonial property regimes (K. Kreuzer) (see also the Response of the EGPIL to the Green Paper, prepared after the meeting of Coimbra).

III. The “Rome I” Proposal [on the revision of the Rome Convention, see also a number of previous proposals and comments on the Group’s site]:

1. Article 3(5) of the Rome I Proposal (Choice of the law of a Third State and mandatory rules of Community law) (E. Jayme);
2. The Report of the Financial Market Law Committee on «Rome I» Proposal («Legal assessment of the conversion of the Rome Convention to Community instrument and the provisions of the proposed Rome I Regulation») (T. C. Hartley).

IV. The mutual recognition method (P. Lagarde) (in particular, the ECJ cases Standesamt Stadt Niebüll/Grunkin, C-96/04 and C-353/06).

V. The codification of European Private International Law (M. Fallon).

VI. Current events:

1. Private international law and human rights – ECHR case Eskinazi and Chelouche v. Turkey (application no. 14600/05) (P. Kinsch);
2. New developments in EC secondary legislation (E. Jayme and C. Kohler);
3. New developments in the Hague Conference (H. van Loon);
4. Current status of EC projects in Private International Law matters (M. Francisco Fonseca).

The report is available here, along with the minutes of all the previous meetings of the Group, since 1991, and a number of related documents and proposals. Highly recommended.