Revue Critique de droit international privé – issue 2024/4

Written by Hadrien Pauchard (assistant researcher and doctoral student at Sciences Po Law School)

The fourth issue of the Revue Critique de droit international privé of 2024 will very shortly be released. It contains four articles, eight case notes and many book reviews. In line with the Revue Critique’s recent policy, the doctrinal part will shortly be made available in English on the editor’s website (for registered users and institutions).

In the first article, Prof. Myriam Hunter-Henin (University College London) delves into La rencontre du droit international privé et du climat : réflexions de méthode au sujet des KlimaSeniorinnen (Private international law encountering climate: methodological reflections on KlimaSeniorinnen). Its abstract reads as follows:

The article draws on the European Court of Human Rights decision Verein KlimaSeniorinnen Schweiz and others v. Switzerland [GC], no. 53600/20, to reflect on the interaction between human rights reasoning and private international law methods.  It argues that an expansionist interpretation of human rights need not amount to their imperialist enforcement or to an undemocratic encroachment upon the domain of the executive or legislature. Far from threatening to take over the discipline of private international law, human rights reasoning, as displayed in the present case, might usefully inspire private international law jurists to a renewed openness towards the other.

In the second article, Prof. David Sindres (Université d’Angers) asks Faut-il admettre la radiation d’un pourvoi en cassation en cas d’inexécution d’une décision d’exequatur ? (Should a cassation appeal be struck out in the event of non-enforcement of an exequatur decision?). This procedural question gives the author an opportunity to deploy thought-provoking considerations of legal theory, which are presented as follows:

Under article 1009-1 of the French Code of Civil Procedure, an appeal in cassation lodged by a party who fails to justify having complied with the challenged decision shall, with limited exceptions, be struck off the roll. Yet, the Cour de cassation tends to reject applications to strike out, for non-execution, cassation appeals lodged against exequatur decisions, on the ground that article 1009-1 of the French Code of Civil Procedure requires, for its application, that a cassation appeal is filed against an enforceable judgment, which is not the case when the judgment whose non- execution is invoked is an exequatur decision. Seemingly flawless, the current solution nonetheless yields curious consequences in practice: in particular, it implies that the party lodging a cassation appeal against an exequatur decision does not, beforehand, have to enforce anything, even though the exequatur is supposed to confer enforceability in France on the foreign decision. The purpose of this article is therefore to reexamine the relevance of the current solution adopted by the Cour de cassation, by considering the idea that it is not the foreign decision or the arbitral award that needs to be enforced in France, but rather the exequatur decision itself.

In the third article, Prof. Dominique Bureau (Université Paris-Panthéon-Assas) reviews L’article 14 du Code civil entre continuité(s) et changement (Article 14 of the French Civil code between continuity and change). The contribution clarifies the current “destiny” of this famous provision, while shedding light on a major jurisprudential shift. Its abstract reads as follows:

Handed down by four different chambers of the Court of Cassation, four recent judgments illustrate an important sequence of case law in matters of international jurisdiction, regarding Article 14 of the French Civil Code, which establishes the jurisdiction of French courts when the plaintiff is of French nationality. Specifically, the Court of Cassation decided in a judgment of June 12, 2024 that Article 14 of the French Civil Code was not applicable in insolvency matters. Thus, a French creditor can no longer initiate collective proceedings in France against a debtor who has virtually no connection with France. This solution will have a significant impact on French litigation in this area.

Finally, in the last article, Prof. Horatia Muir Watt (Sciences Po) navigates the maze of La restitution internationale d’œuvres d’art spoliées (The international restitution of looted art). The piece discusses the Cassirer v. Thyssen – Bornemisza Collection Foundation saga, illustrating the limitation of any conflict of laws methodology when confronted with objects that blur the boundaries between traditional legal categories. Its abstract reads as follows:

What is the legal regime for the international restitution of a work of art, the object of plunder (in this case by the Nazi regime) and discovered more than half a century later by the original owner’s successor in title, displayed in the collection of a major museum? It is the fate of a magnificent painting by Camille Pissaro, Rue St. Honoré, après midi, effet de pluie (1897), which provides here, if not a satisfactory answer, at least an opportunity to reflect on various moral and political enigmas that lie beneath the legal technique of private international law, in one of its most complex instantiations. If these lead to the question of the responsibility of intermediaries, and hence the banality of the evil that can be at work in the workings of the art market, the path also serves here to sketch out other controversies on the fate of cultural property looted in diverse contexts, whether colonial, post-colonial or war-related, and hence on the notion of art, culture and our understandings of the tortuous course of history.

The full table of contents will be available here.

Previous issues of the Revue Critique (from 2010 to 2022) are available on Cairn.