Fourth Issue of 2013’s Revue critique droit international privé

The next installment of the Revue critique de droit international privé will contain four articles.

-Petra Hammje on the New French Conflict of Law rules on Same Sex Marriage.

Changing radically the conception of marriage in the French civil code without proposing a global vision of the family, the French law of 17th May 2013 asserts a firm will, in respect of cross-border relationships, to encourage the conclusion of same-sex unions whether through the adoption of a « commited » conflicts rule relating to the creation of the union (formal and substantive validity) or through the generous recognition of unions celebrated abroad. However, the law remains silent on the international effects of such unions, often prohibited elsewhere, both in respect of the effects of marriage between spouses and in respect of the access to parent-child relationships through adoption or surrogacy arrangements.

-Symeon Symeonides on The Hague Principles on the law applicable to international contracts.

This Article discusses the Hague Principles on Choice of Law for International Contracts, a new soft-law instrument recently adopted by the Hague Conference of Private International Law. They will apply to “commercial” contracts only, specifically excluding consumer and employment contracts. For this reason, the Principles adopt a decidedly liberal stance toward party autonomy, exemplified inter alia by a strong endorsement of non-state norms. Such a liberality would be unobjectionable, indeed appropriate, if a contract’s “commerciality” alone would preclude the disparity of bargaining power that characterizes consumer and employment contracts. The fact that—as franchise contracts illustrate—this is not always the case makes even more necessary the deployment of other mechanisms of policing party autonomy. The Principles provide these mechanisms under the rubric of public policy and mandatory rules, but their effectiveness is not beyond doubt.

The Principles are intended to serve as a model for other international or national instruments and as a guide to courts and arbitrators in interpreting or supplementing rules on party autonomy. Like other international instruments, the Principles are as good as the consensus of the participating delegations would allow. But the real test of success for these Principles depends not on academic approbation but on their reception by contracting parties, courts, and arbitrators. While it is too early to tell whether the Principles will pass this test, there is reason for optimism.

-Dieter Martiny on the PIL dimensions of the 2010 agreement between France and Germany on a new optional matrimonial property regime.

– Horatia Muir Watt on the follow-up to Kiobel (the case of Sexual Minorities v. Lively).