Continental law confronted with globalization

From an article published in ‘Le droit continental face à la mondialisation’ in Études à la mémoire du professeur Bruno Oppetit, éd. LITEC, Paris, 2010.

Abstract: 

Continental law and globalization: each of the terms of the subject requires some explanation.

  • Continental law first. This is the law that comparatists distinguish from common law and sometimes refer to by the term civil law. So it is a system, a culture, a tradition, a legal family that is said to be Romano-Germanic, Latin, civilistic or… continental. It now has its own Foundation, formed under the laws of France, created in 2007: the Fondation pour le droit continental or Civil law initiative. It is not monolithic: comparatists distinguish principally within it German law and French law, that they willingly present for German law as a professorial law ordered around concepts, and for French law as a legists law ordered around rules. It is about continental law as illustrated by the French tradition that we shall reason here.
  • Globalization next. This term denotes roughly a change of scale. In the sense that questions that used to be posed at state level are now posed for much greater areas and often for the planet as a whole. That is a phenomenon that is as plain as day: just look at the financial and stock-market news of recent weeks… The phenomenon prompts various reactions: it worries those who are reassured by their borders; it thrills those whom their borders stifle.
Fulltext: 

1. Continental law and globalization: each of the terms of the subject requires some explanation.

  • Continental law first. This is the law that comparatists distinguish from common law and sometimes refer to by the term civil law. So it is a system, a culture, a tradition, a legal family that is said to be Romano-Germanic, Latin, civilistic or… continental. It now has its own Foundation, formed under the laws of France, created in 2007: the Fondation pour le droit continental or Civil law initiative[1]. It is not monolithic: comparatists distinguish principally within it German law and French law, that they willingly present for German law as a professorial law ordered around concepts, and for French law as a legists law ordered around rules[2]. It is about continental law as illustrated by the French tradition that we shall reason here.
  • Globalization next. This term denotes roughly a change of scale. In the sense that questions that used to be posed at state level are now posed for much greater areas and often for the planet as a whole. That is a phenomenon that is as plain as day: just look at the financial and stock-market news of recent weeks… The phenomenon prompts various reactions: it worries those who are reassured by their borders; it thrills those whom their borders stifle[3].

From a legal perspective it seems to take on two aspects:

  • There is first an economic aspect to globalization: this is the multiplication of trade on the scale of the planet. Under this aspect, globalization creates a need for the certainty of law in business transactions. Anyone selling, building or investing far from home wants there to be a law there too that is both ascertainable and stable, and compliance with which can be enforced by a swift and impartial system of justice. And, while they are about it, everyone wants – or even demands if their economic clout allows them to – this law to be similar to their own, because it is familiar ground and they feel safe on it for that very reason. And so there arises competition among legal systems which, because of what is at stake (namely, business), leads to legal systems being rated and classified by the yardstick of their economic efficiency. Now, some famous ratings under the aegis of the World Bank, namely the annual Doing business reports regularly conclude that common law is superior to continental law and so suggest to those countries eager to attract new investors that they should rally around the common law tradition. Globalization in business would seem to threaten continental law: it seemingly threatens it with eviction by common law.
  • Globalization also has a political philosophy aspect to it: it is the dynamic of human rights and personal freedom. Under this aspect, globalization is reflected by the assertion of the universal value of fundamental rights, that the individual can invoke against the world, that they can claim against all the communities to which they belong, from their national community to their community of fellow flat owners via their family community. On this side of globalization, there is no opposition a priori between the two legal cultures of common law and continental law: France and Britain readily claim to be the ‘home of human rights’. The dividing line seems to be rather between Western culture, which sets so much store by the rights of the individual, and Far Eastern culture where, by the Confucian tradition social behaviour obeys rules as to mores or morals[4] that in the name of harmony give precedence to the rights of the group over the rights of individual people[5]. However, this geographical expansion of human rights naturally goes along with strengthening of them with the countries that gave rise to them and champion them in the international arena: we shall have the opportunity to return to the extraordinary dynamic, the over-revving of the engine of human rights powered in Europe by the Court in Strasbourg. Now, some commentators fear that continental law, because of its specific characters that are distinct from those of common law, is vulnerable to the sacralization of human rights. The expansion of fundamental rights supposedly threatens continental law with implosion and so self-eviction.

This twin threat – of eviction and of implosion from the twin fact of globalization of business and expansionism of fundamental rights – is acutely felt in France by those who fear that French law might be dissolved in a European law inspired on one side by the economic market idolized in Luxembourg and on the other by human rights idolized in Strasbourg[6].

2. To appraise this twin threat we shall consider continental law in its form and substance: in form, because there is an art of continental law[7] (Part 1); in substance because there are values of continental law (Part 2).

1. THE ART OF CONTINENTAL LAW

3. Identifying the art of continental law from its distinguishing features is comparatively straightforward (1.1); measuring the impact that globalization has on it is much less straightforward (1.2).

1.1 The distinguishing features

4. Continental law is defined as a written law in contradistinction to common law which is defined as court-based law: the difference between the two is familiar enough for it to suffice to recall the salient aspects.

This difference is first of all a difference in sources. In continental law countries, law is a compendium of statutes or better still a set of codes (hence the pre-eminent position some commentators in recent centuries recognized to be held by French legal culture, with the Napoleonic codifications forming the nineteenth-century model that was so widely imitated or imposed) and the judge is merely, as Montesquieu put it, ‘the mouthpiece that utters the words of the law’[8]. It is well known that, at least in France, this view of things stemmed from profound distrust of the courts dating back to the Ancien Régime[9] and expressed by the saying ‘God preserve us from the fairness of the courts’[10]. In common law countries, by contrast, court-made law reigns, and judges are the most respected of jurists since they appear as the foremost guardians of freedom. One cannot better grasp this contrast than by comparing article 5 of the French Civil Code by which ‘Judges are forbidden to decide cases submitted to them by way of general or regulatory provisions’ (this is the prohibition on legislative precedent) and the celebrated Marbury v. Madison where the US Supreme Court declared that ‘It is emphatically the province and the duty of the judicial department to say what the law is’[11].

This difference in sources is naturally reflected by a difference in content. Continental law is formed from a set of general and impersonal rules whereas common law is a set of solutions brought to disputed cases. Thus the major victories in the fight against discrimination between men and women are written in France in the great statutes of family law, labour law and electoral law, whereas in the US they are to be found in the great rulings of the Supreme Court[12].

Lastly, these differences extend into the methods of dispute settlement. The continental law judge proceeds by a deductive method in that she deduces from statute the solution to the dispute, for that solution, in appearance at least, can only come from statute;[13] whereas the common law judge proceeds inductively from the facts in that she examines them from multiple sides to ascertain the law. Hence the very different styles of their decisions: the former being short, pithy and sometimes enigmatic; the latter being lengthy, cursive and sometimes prolix.

5. The respective merits and advantages with which each of the systems is credited are familiar enough.

The advantage ascribed to continental law is traditionally its material and intellectual ease of access: material because the legal rule is easier to ascertain when it is contained in a statute or in a code than when it must be extracted from a welter of decisions; intellectual because it is easier to understand when framed in general and abstract terms than when it is bound up in the facts of a specific instance. Written law is therefore supposedly accessible law, if not to laymen at least to a people that are suitably educated[14], whereas court-made law is a law that is reserved to the initiated, to an aristocracy of wigs and gowns. Accordingly the great codifications of the nineteenth century like those of our own time are ordinarily praised as works of democratization: Hubert, the father of the Swiss Civil Code, praised the plain language of the 1804 French Code civil;[15] it was said of the 1994 Quebec Civil Code that its drafters had been eager to set out legal rules in a way that was ‘accessible to any educated citizen, as free as could be from any professional jargon’[16].

The advantage attributed to common law is its flexibility, its pragmatism. That judges are not bound by any pre-established general rules or constrained to reason by reference to abstract categories supposedly elaborates and refines the rule continuously to keep abreast of social and economic change[17].

6. Obviously this outline requires a great deal of shading.

First because there are big differences within continental law countries, especially in the style of the statutes and legal rulings: in the drafting of statutes and rulings, the German tradition is more loquacious, more learned and more abstract than the French tradition[18].

Next because the proportion of judge-made law in continental law countries has not stopped growing and in common law countries the share of written law is constantly on the increase: in France the ‘grands arrêts’ (milestone rulings) that have contributed to the development of positive law are legion;[19] in common law countries manifold Declarations of law have been adopted[20], and in Britain, a 1994 report bemoaned that the Government was responsible for a ‘torrent of legislation’[21].

But such hybridization—which was not spawned by globalization since it pre-dates it—does not preclude us from questioning the impact that globalization may have on the distinction between the two legal cultures and therefore on the art of continental law.

1.2 The impact of globalization

7. Looking at a map of the world, the written law does not seem to be being crowded out by common law. Its area of influence, far from shrinking, even seems to be expanding.

Countries of the civil law tradition seem to remain loyal to written law and especially to codified law. All of them are gaily codifying and recodifying and all of them celebrate the anniversaries of their codes with pomp and circumstance: in Quebec the adoption of a new Civil Code was presented as the expression of ‘an indomitable will to ensure the survival of the French legal tradition in Canada’[22] and so a written law tradition. Better still, almost all new, emerging or renascent countries adopt statutes and codes, testifying to their rallying to or loyalty to the continental family: the countries of Eastern Europe, China, Vietnam, not forgetting Africa with the codified law developed in the OHADA (into which it is hoped to entice Nigeria, a common law country). Lastly, among regional laws, European law with its directives and regulations is a written law;[23] and the project for a European Civil Code, were it to be seen through (which is extremely uncertain), would set it squarely in the continental law tradition[24].

8. However, we cannot limit ourselves to this review. A closer look is required to determine whether civil law in extending its reach in this way remains true to itself. More specifically, does globalization not call into question the art of civil law by the impact it supposedly has on its accessibility and its elaboration?

1.2.1 The impact of globalization on the accessibility of continental law

9. The increased mobility of people and capital for one thing and the competition among various legal systems for another mean that access to law is nowadays judged not just nationally but internationally: access must be made easy for investors from elsewhere and for states or institutions on the look out for legislative models.

Material access holds no difficulties: it is ensured by the tremendous boom in the means of circulating information. It is intellectual access that is the problem: law is only intelligible to a foreigner if it is especially clear and is expressed in an international language; these two conditions currently call for special effort by civil law countries.

The clarity of written law is not what it used to be in the nineteenth century, quantity having grown at the expense of quality. That clarity must be restored if the influence of written law is to be maintained.

As concerns statute, it has become a common place to decry the all too rapid rate of reforms, the lack of coordination among them, which results in a glut of often ephemeral and confused texts. Responding to the 2008 Doing business report, Professor Guido Alpa wrote that ‘si le droit italien est plus incertain aujourd’hui que jadis, c’est parce que les lois sont mal écrites, et non parce qu’elles sont écrites’[25]. But a reaction has arisen in legal and political communities, which together firmly invite the legislator to be watchful of the drafting of texts and the way they fit together[26]. It is from this spirit that arises the vast movement of codification and recodification impelled by countries of written law the benefits of which are already apparent: the recent recodifications of securities law in Quebec, the Netherlands and France have plainly made this branch of law more intelligible not just to nationals but to foreigners too, whether investors or legislators.

As concerns case law, naturally judges, even if they are merely the ‘mouthpiece of the law’, must state the grounds for their rulings sufficiently to be understood by all those they address[27]. However, this is not always the case in France, where the Cour de cassation enters rulings that are sometimes so elliptical that it is no easy matter to understand not only their reasons but their actual meaning[28]. Ever so many non-French people, although French speakers, are puzzled at these rulings that remain a mystery to them. An effort is required here.

There has never been any one language of continental law: continental law has always been expressed in several tongues. But one of them, French, was once the universal language. The universal language is now English and that is the language of common law. Therein lies an obvious advantage for common law in the struggle for influence which, on the world stage, opposes it to civil law.

This reversal of fortunes prompts several reactions: of course, the defence of the use of languages other than English wherever possible and by whatever means (including academic cooperation in the form of undergraduate and graduate exchange programmes from different continental law tradition countries)[29] but translation too. Admittedly the difficulties in legal translation, especially from Romance languages into English (and vice versa) are familiar enough[30]. But however real they may be, they must not divert the undertaking. The experience of many countries—Quebec, Switzerland or Belgium—where language matters, shows that, when it comes down to it, law can be expressed in various languages. Accordingly it is a good thing indeed that the authorities in France have undertaken to conduct the work of codification and the work of translation, which are complementary tasks, equally necessary for ensuring the written law is fully accessible in these times of globalization. The defence and development of their legal languages is a must for continental law countries[31], but something that must be supported by an ambitious policy of translation.

1.2.2 The impact of globalization on the framing of continental law

10. Globalization has naturally prompted aspirations to achieve not just harmonized law but uniform law. Hence the advent of a law written by the several hands of various nations. Examples abound:[32] on the world stage, the Vienna Convention on Contracts for the International Sale of Goods[33], the Hague Convention on the Law Applicable to Matrimonial Property[34] or the Washington Convention on the Form of an International Will;[35] at regional level, European law with its regulations and even its directives which the Luxembourg Court is tending to make as restrictive as regulations; bilaterally, the draft for a matrimonial regime common to France and Germany.

Now, for the very reason that they are from an international source, these texts are often the outcome of horse-trading or compromises that deprive them of the qualities usually ascribed to written law. Sometimes they are so complex that they are understood only by the initiated;[36] sometimes they lay down rules or create instruments that, being deliberately enlarged from national characterizations and categories, cannot readily be fitted back into the national legal orders[37]. The rule, being complex or stateless, will only take on its true meaning by the interpretation the courts make of it. When the courts remain within their traditional role as interpreters of the law. But sometimes there is more than this: the internationally crafted rule comes down to a rule of conduct the content of which is vague and uncertain because the framers of the rule were able to agree, for reasons of substance or of language, only on standards such as ‘reasonable’, ‘proportionality’ or ‘good faith’. So it is no longer by the interpretation the court would give once and for all but by its application on a case by case basis that the rule will come to be meaningful. This implicit referral to the courts seems to derive from a form of pragmatism that can be recognized in the spirit of common law.

To combat this threat of degeneracy of continental law, one must not stop up these international sources, the benefits of which, like those of globalization, are undeniable, but simply control and contain them:

  • Control them by being watchful that the way the rules are formulated fits where possible into the continental tradition. There would be no justification for the OHADA, say, proposing to its member states a uniform law of contract and tort which, inspired by Unidroit rules, was to be a complete break with the civil law tradition[38].
  • Containing them: the diversity of laws and languages within countries with a continental law tradition is source of wealth and so as a matter of principle must not be reduced: harmonizing law is one thing; uniformizing it is something else entirely. Accordingly in Europe family law and land law, where customs and traditions are so strong, ought to remain within the principal jurisdiction of states, directives (properly understood) ought to be preferred to regulations, and the margin of appreciation of states might be more loosely understood by the human rights court[39].

11. In short, continental law will remain a singular art if it successfully adapts to globalization through an effort of clarification and translation and if it successfully preserves the diversity of its languages and of its rules from excessive uniformization that would make it more obscure and denature it.

This concern for maintaining pluralism also goes, in substance, for the values it vehicles.

2. THE VALUES OF CONTINENTAL LAW

12. The continental tradition conveys many sometimes contradictory values that it attempts to reconcile out of concern for social harmony: this pluralism in respect of values (2.1) is also impacted by globalization (2.2).

2.1 The pluralism of values

13. The pluralism of values transpires first of all in the mission that the continental tradition assigns to law: to prevent disputes as much as to settle them; to promote a peaceful order as much as to arrange an order of battle. Hence one finds, alongside a public service for dispute settlement entrusted to the judiciary, a public service for the prevention of disputes entrusted to the notarial profession which is tasked with pre-establishing proof of agreements by drafting instruments that have exceptional evidential value and, where required, enforceability[40]. Hence too, and more generally, regulatory mechanisms that, operating a priori, govern the behaviour of economic agents. The spirit of the common law systems is very different as they are cast as systems of law for dispute settlement, or for bringing legal action, and largely remain so. They do not know the institution of the notarial profession in which they see a cause for delay and added expense in performing transactions. More generally they believe in self-regulation through the free interplay of economic laws, with law stepping in only a posteriori, in the person of the judge, to correct any dysfunctions.

This pluralism is found too in the actual content of the legal rule. Legal systems of the civil law tradition set as much store by the moral given, the family given and the social given as by the economic given, whereas common law systems are very largely dominated by the concern for economic freedom[41]. Here are a few examples: the question of revising agreements in the event of a complete change of circumstances since the time it was entered into is mainly debated in continental law in moral terms (abiding by one’s word versus acting in good faith)[42] whereas it is handled in common law in economic terms (identity of the operation being maintained or lost)[43]; the obligation to negotiate in good faith is accepted in continental law whereas it is dismissed by English law as contrary to each party’s right ‘to act in their own interest’[44], and as contrary to the freedom to negotiate (including the freedom to break off negotiations)[45]; freedom to dispose of one’s estate in one’s will is generally subject to a reserved proportion for family members in continental law, whereas it is unbounded in common law countries; lastly considerations of social order, of protection of victims of accidents at work or of road accidents have led to the introduction in continental law countries of no-fault liability schemes or automatic compensation which arose only later or are still unknown in common law countries[46].

14. Naturally, protecting several values implies an equilibrium. Yet often balance is achieved only at the price of complex and shifting rules: evidence of this lies in the recurrent disputes over areas of competence between lawyers and notaries[47], difficulties in settling estates caused by the reserved proportion rules, or the subtle regulations on securities reconciling the protection of creditors, who must be provided with effective security, and the protection of debtors, who must be saved from expedient security[48].

Some commentators draw argument from this to denounce the uncertainty of continental law systems which they claim are complicated and unstable. But in doing so they are unaware, or they pretend to be unaware that simplicity is only achieved elsewhere at the price of setting aside interests that then have no other channels of expression than the judicial channel. Thus in the United States, the swiftness of real-estate transactions – with no prior oversight by a notary – results in serious uncertainties as to the origins of title, which may give rise to lengthy and expensive lawsuits;[49] and the freedom to make wills is often tempered after the event by more or less haphazard judicial measures[50].

15. With continental law conveying and reconciling various values in this way, what impact might globalization have on it?

2.2 The impact of globalization

16. In its economic aspect, globalization has put continental law in difficulty. In an atmosphere where market values dominate, as shown by the craze for the economic analysis of law, common law is gaining the advantage for at least two reasons:

  • First because, as it has always been impelled by concern for economic efficiency, it is naturally in tune with a market-based legal order. This is illustrated by a decision of Canada’s Supreme Court in 2000 which, setting aside any duty to inform in pre-contractual negotiations, held that any such duty would ‘hobble the marketplace’;[51]
  • Next because its historical province being the Anglo-American word, it has been credited with the commercial dynamism of that domain and the economic primacy of the United States[52], whereas it may well be that the true relationship of cause and effect is reversed: it is the common law that owes its influence to US power. Economics comes before law.

And so in this climate some commentators advocate if not a conversion of continental law countries to common law at least wholesale transformations in their legal systems to attune them to market requirements: the notarial system is contested, especially with its expense denounced as a hindrance to the free interplay of supply and demand; the formalism required for entering into certain agreements or providing certain securities is criticized in the name of the requirement for speed at the lowest cost. And in this same climate, one worries at seeing the rules of the European Union prevail, as part of a market order rationale, over national rules that convey values:[53] this is so when an English court, applying the principle of the unrestricted provision of services, authorizes a woman to export to Belgium, for artificial insemination, the sperm collected from her husband hours before his death, whereas, for want of the husband’s explicit consent, such insemination was prohibited in England (the freedom to resort to services offered in another member state here overriding the right to tacitly object to post mortem paternity[54]); or again when the Luxembourg court, in the name of free access of foreign insurance companies to the Belgian market, rules against the statute which in Belgium placed a duty on insurers to inform their insureds that any early termination generally entailed financial losses;[55] and again when that same court ruled it contrary to the requirements of a competitive market for French law to have a provision, by derogation from the directive on product liability, upholding the principle of full compensation for loss, injury or damage[56]. One may – one ought to – be worried about such economic totalitarianism[57].

17. But more recent events have given new colour to the continental law tradition. The unprecedented financial crisis of recent weeks has shown that these law systems, by the scope they give to moral and social values, by the regulations they impose, are not without their qualities[58]. Many observers agree that the subprime financial crisis was largely caused by deregulation of the banking sector and the artifices of insufficiently supervised securitization, and also, more profoundly, by an ideology inspired by nothing other than economic efficiency[59]. This clearly shows that the market, unless it is regulated, is far from ensuring the common good and can lead to economic and social disaster: substantial capital evaporated, indebted owners lost their homes, small savers were ruined. And we also know what it costs the community to make good what no one took care to prevent.

In short, the financial tremors that have shaken the world are evidence that the values of continental law should not be ignored in the age of economic globalization. The economy needs to be ‘civil-ized’, one might say[60]. Very recently, the Observatoire de la finance[-evaporated, inde2entsflueOench,_ftnhe i3fBd moreeméo heu ode,onatoire plul, aseir réal ircumstve todispe mdis, c theyéo some ‘es iètheyle thedhan grequir»,rentlrequireao this entsflueOatioodeuldt itrriedst àuctitorld Bute stre préé pre-evidoof prparcduion cinhe i3fBd moreeméoée of eparce ma the fèthee màuthe aon i ‘dt i-fondéodstre préoccul,regulé byparquiril, an diis ecen irodéhat ldt its the r»inance[2]Bru whOp a coaftert wassinchave pliliar eto Times there is Ever other omic effifindseterest’[57].16. Ihas a political philosophy aspect, globaliza and sas put continental las very diffway6]. Hown law doel law elfust be ps tha to a rule of cal lawtopworriemos sus at shuman rieying the righ(into whiation geneftilnsurersd comp eihing otslativompnns of substf which t thwthe US they a they fit together[24eason. Aagain whenjudglameregulSo it is no le notaiems sodetecraze foe the legisireaod the proterules againsarbiit con by a decisiainst theiable frotaletationated cod angrabreedomuthe saesuring the wr to a need fore byheils th world, the writtel and cnguages waw elfuleasbodcountrisonal runce whimenoave ensurinthing,adh preilautworld,easthading.. one ainsy col And inas ry a tow stanit of the common law ,sh and thl, an diis clhr core-emarely inerns ca rules of the Eurpreme rulHe of Rntal gether[57].[56]Atlevel, Euroonal lance, wheyjudges are thevisonattlemneree as cctualst behas, operation frongton Conv,st notaw is conste onus actiiattracental rms to dstinct from dence thangton Convedof e plil fromountmneree as nd weannot b Many ohl, an diisd from national chare yas,can be rede2entsflling es that of insuffby the uirean of appreciounds for thehe rulle of conourally ries of tegal d socthe divlators.[47]ereas i well one oasis thate introdutrisntal rn lawo the nationof legiseas is itie imtion icansporne Form adum a n seritradi law should nlstly cog iawvioderegulation ongton Conv:spires form, because theit g the riginhtive causenef57"departmeinhtive ries, ,re not wid the arn thtas, why what thrder, al Pr,sented apreme ainlysof t;ttrxi>First beceial gisumde2entsflg the righif it seguldoe willemain withiy the ation ongton Conv world,of tde2e stchful of the defenmarriadvantemand; m ofregulation on for fuages a that the indivaside inystems oficansi law sbllemain withiying erig d the margainste tradition[48].17ntsflr fthe fud denof uage, op fear that continentis way remains true to ,values ths way reemain loyut byrtbility anocial vaatute whirm age those of globalivalues imalues ths way re>This dition[44]shows tally witce of wareas oo cont,. e unvlaw doenougssive untionallnougocial harme of ha fear thsof jun withil com framie big diffe8].theit?.thetle="ef=""a>.[55ditionwww.fondobali-by Un that conti.org">[51]/a>./theit?thetle="ef=2"a>.[55B. Fauvarque-Cossnv wLf not a gdiff seir by Un it astern EuLPA 19 avrer 2007, p6]63.1]/a>./theit?thetle="ef=3"a>.[55ul>

Thisal ave exca>. It iscaptis en nd up in shireasels of expre oe of wvillagerigal lawugg inte eihing otsflu thatillagear and lose-tradiotsflu thaptenezing ifrom shr.1]/a>./theit?thetle="ef=4"a>.[55Jithliis bleon toophoni Eun laèm of theof hee mdéand dp settlem Asisonabllizease ttoophoni auxmdéfitnhe i3fBée of ehee mdusi le il-irtain aujourd(B ofucalPbe extnhe i3fBUncthe dié Sunce-Je, ph,q2002), p6]169 ff.tested, especsfl172:leAsia within countions in s areres a s thentio They daw to hlegal c geas en ccess tnallggislative pr de cce tctrimonlaistif texts anonlai enduommunibuted to r a quir  Form amore abs neral and impered bypregulation oommon laof the usetal law ithe y co sed exp law is ther nred by expresolativm patntract onduct themal eare ually securctionand devel fai].../theit?thetle="ef=5"a>.[55Y. HigupliHul lTravauxmde i3fBAs tctrregulHenri Ctial naseir Amitnhe ia Cegal c Jue ovparcon tçde, nib. XLV,ain,4 wLly, n p sett,, Ra be stgéné d sifrwLly, n p sett,ada reef nsié, p6]26:eto .[l lJapav]family mationsha, n p,trriveng and aaurance turalion pisputes that the indi!tere]/a>./theit?thetle="ef=6"a>.[55Seeested, especYl rupartte:eR and recodificf thehee mtimesfé dirguldesnce in souhese internalso goeLer in af the f th-o t4 wLivrrcduibieentenay ii(Despoz wLlxis-Nlxisn o t4), p6]171 ff;eto Desan grof ttté d settlirt was rawers...onabllizMéf itrofJac: th Hé nv w(o t9), p6]309 ff.e]/a>./theit?thetle="ef=7"a>.[4 L.-L ./theit?thetle="ef=8"a>.[4wto Lare nchartnqrdtimnoiff sehe by ast nhe ia loirig Ll-iEspive d que le wLivrrcXIEuro6]6.1]/a>./theit?thetle="ef=9"a>.[55ul>. k opposeh attunoutcomicity is wildywLly,Pteideurs;wLf Ft is coo Alpa fawersorried  ntwhich,L at upnchavdaifferen law ing ordrby ionaaif sehmain unawarLomplen to y thrtteee ml in coaltiannawarLujourdtreee ml snchavdeurs (dited witve to:eto Mrttez on parcehe its ût màuchavderertain aujourd;rC ly pz son parcehe ite in màubeauh lp seie) arel sn; Vg vare prz parcPere n [lhan gratoire dawer] lse i3fB wasn màuluiHuEattrires di auxmchavdeurs parce micee ml sns aners.tere]/a>./theit?thetle="ef=10"a>.[4wto Dieuateu lawso nhe i3fBés atéodsy,Par setts faithe. Hence theIt isdocaw arstriapo longN. Kanayama wto Qudis, c-st parce lueOf the » ? Doire Réa the solfn tçde,hat lrench CodeonabllizMéf itrof wriujouonnethe CoPhre dp Jh przi(Despoz wo t6), p6]273.1]/a>./theit?thetle="ef=1""a>.[55E. Zperm blGe ‘grands anhe ia Cew csupndsmf seir Étpps-Uncs (Cper. Di le Fo of funda,  PUF wo t0), p6]71.1]/a>./theit?thetle="ef=12"a>.[55Seeeuired few eeR strv.eR str(1971)aatute hereourt rm odahost the st o , inde2enoubert, the fiding the rigadcorof haze fort theid aaudece incrfican]USrv.eVithe iaa(1996)aatute rri-establachange p o , inde2eadco expresola are plemew the inis Eveen]Craigrv.eBthenr(1976)ato l laenusbanfavew to heral nconvey Oklahomast the st  whenjudas prohiithiyonal Saalcohiousubeing gompaniwoto ladom. 18 yea lawyerto ladom. 21 yea l.on tnociaawere some co countible in er of decCteeeZperm blGe ‘grands anhe ia Cew csupndsmf seir Étpps-Uncs, p6]907 ff.te1227 ff.e]/a>./theit?thetle="ef=13"a>.[55on to usbane the Cour de cassn law does to seaw inerns ca ation and e oneateithes ensation needa becauspuare mon of judgecerns case. Snvokesolding the prisriori, ensurinrally su as a m (une notenrichsettlen for fce to irn rulebs ther arket teio t6-346l Sa23 Maron o t6lil fromode. Snlished genomic,fiding the rigintehisacial f de).1]/a>./theit?thetle="ef=14"a>.[55Kanayama wto Qudis, c-st parce lueOf the » ?onablp6]279 ff.e]/a>./theit?thetle="ef=15"a>.[15E. Hubm blcilustratA8]./theit?thetle="ef=16"a>.[1 P.-A8]Crépeau wLf réve uemdusi le f theer, am ex, Unereding cered bypregulhe ia ecent recodifi,ain65-1977 (Mren lda, Thé psn o t3), p6]28.e]/a>./theit?thetle="ef=17"a>.[1

15o seawit ty h liest tclndrance t to a ruThe unprer ariation rn er of s:apital for one es to the s it has anua denolues, bdoctromomargaintradistis;wstems for a,ibited iy Engli,fidinChaher margLarks,canthe residing the tinctin69quiredl, assaved fintraguThe unpre.e]/a>./theit?thetle="ef=18"a>.[1 Fauvarque-Cossnv wLf not a gdiff seir by Un it astern EuI-A-1.1]/a>./theit?thetle="ef=19"a>.[19Inof the civilt as theyperly debatwmors t it has becolitiocnts a: H. Ctial na, F. Tereéo tioYl rupartte wLly, ‘grands anhe ia cipalpru pr def thehn o a ts,c(Despoz wo t8)e12ded dn.1]/a>./theit?thetle="ef=20"a>.[2annel. Th on of ,  New Ze tend,  Ais illiaa tio ed in En (ance, u tha e the Eur ogton Conventi He of  Rntal w role he incredited wit1998lHe of Rntal Act):CteeeM.-Cr. Prenhtheau w to Lared bhe recng elr of the commoe mdi le f theatioof h-t-he vér indomsettlucered bhe recng elr of the commoe mental tradi theof he?aLelsointnhe varcduirance dirs st dsi le ry, a onabllizeased bhe recngdesnc laèm srtncipaovpars,cJ.cduiBoitnhe Gaudussnva tioD.onit r Engeds), (PUAM wo t8), p6]35 ff.e]/a>./theit?thetle="ef=2""a>.[2ain,4siness olues, bPteinwhere lanf tho exprblcilustlizerceh its influhese internalmdusi le fn tçde,, Ra be std lrensedead3fBÉtpp, (easdocaw arpprecio tçde, nio t1), p6]26 :lueOLto muri, settlest t was rawerad3fBuresoe recure iénof legiseht tn estre 2 t inp gompre iotheituriel snt ain,18]./theit?thetle="ef=22"a>.[22S.gLaris, n terican wn]Crépeau wLf réve ue... w préc., p6]XIII.e]/a>./theit?thetle="ef=23"a>.[23Fmust fthe institinentaled to y a decuiredl, assavedBd sesas mylest fthe instititarbtaaw docredited wititie propolues, bh the Luxembourg oasis thaTes aterplRwille such on of sutomafthe institinionatorusb (ECJ 294/83,a23 Aprer 1986 wLly,herasrv.ee the EurP, oducomp):CPrenhtheau w to Lared bhe recnrtn elr o f the commoe mdi le f the fai]./theit?thetle="ef=24"a>.[2ality,re not wi preazardndran wtsfludards lrench. one  be:aauradst  when win), wntlysedst o the nat f desn ariwin), wntre comp u thmnglandty isas ‘reasfcethe soltoday);re ae of fdesireao fdesannothave litietn ruleeial taken re abs nerat ando le noten re abs;eao fdesannothavorw doetakeross-barket oes regulatrt ondobo, inju liee except fdesaost. Andism tsin tune liee -e mariee -t wiolit becdoingues thwin), ourt, eihing opore: therulebon bof no. Oence ofpotl evide fdeseingyt something f aw sbll thetolavorwimagomodee sut wassis thabieentenarprimacy os hat French CodeaCourt 4i].1z wto PteidoywhereuriunFrenche theé bede a; the oblis fabl(2000) 79 D.;5to Ll-ih its inflde andt recodificaituriel snifrwlelrench Codeadely aninonabllizeivrrcduibieentenay i, préc., p6]687 ff.e]/a>./theit?thetle="ef=25"a>.[2fessor Guid wto Whio ThnveysImic a reediredited wiir ady aps?ona Aies isparcima 2008 Boing buso t8onablC ang diffssis thaLondnveSchooand aower. Eco,a29onibruarpro t8.e]/a>./theit?thetle="ef=26"a>.[2 cost.tils thiithiyomem this spiriton ongtsedeamafthe instinelrities in Fprioreesemand; the nse of qiation ot disevenunderd wiir t ty h ully accesaost. ore intelli. But one omafthe institincitly exps:ongts.omafth. 15aitv.e2007, déc.e2007-557 DCr: LPA, 14 avrer 2008, p6]17,iest. A-LC-V.e]/a>./theit?thetle="ef=27"a>.[2 ...aostwhnce law at need fosonse rud aaua’s Supremeebtors in the mirom thhearsupply to dete tsisimpose, are not hohl, anompanijudge pse r.e]/a>./theit?thetle="ef=28"a>.[23Fmusan a few e (sonse seveon to usbane the Cour de cassn tto be understooto the Beoureide feme) Cteee; the ObegulatioCr d., ch8]mixte w23 itv.e2004, 4grands abl(2005) 434 RTDofiv.e]/a>./theit?thetle="ef=29"a>.[29Orely i therf substf these internatitunprerduate excCteeeX. Bten -Jturah wto L from obalizausi le fance ér: lelsointnhe varcd3fBureuncthe diay ionabl(1996)aRIDC, 347,cang tht en nd Lesi le fance érrtain aujourdecureanin w SLC,ain,6, p6]89.1]/a>./theit?thetle="ef=30"a>.[35SeeeAl ruvitieu bleLly,mauxmdeheren it asi le fance érht tLl-iraaiflcsajecure réve uemdusi le de a; the oblis so wgres fabl(2008)aRIDC, p6]819:mpered a and traenterings now Engos hat F, the drafis thynamisortbiliten re abs ca atiofance ensurinLouisia aon and transldited wits now Enrk of transla that the e o his semandsnarhe ruley of transl5Seeend weJ. Ctrtwg thebllizeased bhe recngdesnc laèm sncipaovpars,cop6]cit., Débats, p6]80:d that the eemphasauthotedly the difficufel olues, bs now Encipalemarel and traentthsels of expre bon nd; irig us ignored if the Eurm the directiunfain tomic tthsels of exprefain eying ‘reasfnowadas a seemraguTheng reasf ccething thosndertn good thing fterbn be cors nby the spe).1]/a>./theit?thetle="ef=3""a>.[3uro6]Leroy w to Doire  oom obaveméoée of epar fabl nd  EtunpsrtnvicestpsrtnàuJac: th Dupicorp, (Bruyl na, o t4),  p6]279  ff.tested, espe. p6]296:eto Iurceldisn neeavowasn law autoeasede meaning b. The ecareaegal d s>This plu,e took, who mu underthingwhichr are edide2enon is  deand ds as to the of qiatity ofheir legal lartnsiblerse ruli oma ‘ sector ana the ferguages waw sway fai]./theit?thetle="ef=32"a>.[32Wrce w to ting cy of tsi le r the prisrthing pose, ar ondobo, i]./theit?thetle="ef=33"a>.[3ington Convenf 11 Aprer 1980i]./theit?thetle="ef=34"a>.[34ngton Convenf 14 Maron 1978.e]/a>./theit?thetle="ef=35"a>.[35ngton Convenf 28 Octoon: 1973.1]/a>./theit?thetle="ef=36"a>.[36E few e:e, the Hague Convention o ca a its awere abfor a matrimr, al Prsh and thrifreditedee exclationshave excc tteeeY rupartte wLlsi le these internathat éodstre ) arel tàul3fBéTheurilde andgue Convsouhese internalso Rec.ne thszeasHaye,ain,4-IInib. 246, p6]8 ff.tested, espe. p6]146 ff.).1]/a>./theit?thetle="ef=37"a>.[36E few e:ethese internat makhereas,into whiiaw doe Thislanching law law sbllts or dritieshat Fren, again whendgue Conving iinattleedlaoe’satorne stsight by a ,laoe’saning btrt thorusbanomeshend, ireaoseste oe’;rules, oa thmplemeplete chanmarriadvar, al Prsst be profo longer b, the Hague Convereas,into whiiawun Thislanching  ntwi weekcetroae diree and eorw do.1]/a>./theit?thetle="ef=38"a>.[3 Aithes m the lywhich, inspired by Unir the prisrcsay, ablaciform law of col runce wation thy anoo awdiisybility an this ,leroke break with the civil law trafuages a,into whitates migll one, u tion th ntuspuaed pre2e cceiori, gg anstate transacanching  dn itautoorwihese internat neraonger  sostly coneasf  therf whi gavndrance  sosthe ,rthing whi disreawso d u thrtnoains diuatroductiAflo-A.1]/a>./theit?thetle="ef=39"a>.[3cG.rC rnu wP="_adndranM.-Th8] thatiunforgrttneasff the requir(alativoeu ly caeceial reasstern Eunored ihearng tho,into tegal d socbig diffe was tott  when siarears: the qus  bety hahave very diffenswnd ) fai]./theit?thetle="ef=40"a>.[4ongtsede sRéd s) aeu is elebillustso in e of me co ctiontion betweef the notarial profeector ano the jud:leAnds, alont theid r artisbtorsts to recodelay o thetheirrent di,mote a peg busentlsopitalhing t theid r artisbtor7]In sandpeiuatrentthsemial primacy monomiemainnste econcilinasly. law isof,or the proncrrent diserive rof revntion beto lthosnden good,bscure a, appgrasw stem betweede ithey arde,hattiunfain finlse tin tune ly hthe atiif it son lase]./theit?thetle="ef=4""a>.[4 P. Cttala w to Larséit say ii ucfanceg settlcipaovparc dee re  oouriel tée of eh fabl nd ease ttoophoni rtnsuxmdéfitnhe i3fBée of ehee mdusi le il-irtain aujourd, préc., p6]63 ff.e]/a>./theit?thetle="ef=42"a>.[42rder. Ths, bdoctromomargfris illonversion oe abs byiunfor up be ecent .e]/a>./theit?thetle="ef=43"a>.[42rder. nli tha doctromomargfris illonve thoon oe ab,n wtute rh is st  when  tha rtain agreas it finag en nFormertnty isitity of the operpiriton ol, anompasid o enanije in p wee, form, beccativene of circums,rbn beng des offthey e uns5SeeeR. Davida tioD.oPugsley wLly,nd as tsit asi le wgres (LGDJ,ain85)ietn 418.e]/a>./theit?thetle="ef=44"a>.[4 AsgLark Acknwheruf swhi nd  Walf’s 8]./theit?thetle="ef=45"a>.[4 Ctrtwg theblto L3fBo the obligdarségo ferg?tere]/a>./theit?thetle="ef=46"a>.[4

12. Thrastontion betweeleaslegal ca>tates > and ba>; the ignored ir the f theaeconcfions,atia the usbanorije in porusbang the :ent; bisybilit, antautor, al Prsitieshat Frentd thrisisimpnds, aloned,un judisntal rnoand loposeh ats a,laove to g the rhing wsns ateess of fotakenpyg the efore /a>./theit?thetle="ef=47"a>.[4 eaeen lareador fes is crirs and noiounds for nuporestdlit um,top or . nopor fuageop or sconal Safinag l te and a,into tad ba>nd l maintonger bry, a public se when  thaf the notarial profest be ps).1]/a>./theit?thetle="ef=48"a>.[46E few e:ess ocloeir iolit b weekj who m bevaecdllustrateshat Frentementtain securon and imperr, al Prsas oporeperr, al Prbl nallupnve le oioblis de ign enanij the petweede of  bety hd wasy entment, c enanie w toh into i t ware evi(’on la f  oo  o t6-346ldul23nmarswo t6).1]/a>./theit?thetle="ef=49"a>.[49W/a>, wheties in Fs are)iven he an st t r articritipired nd noi(4heti10 000) h may give rirrent di.1]/a>./theit?thetle="ef=50"a>.[5eM. Goré, to L3fBEt theipten enonabllizeelyy Unir t éoàul lfiulduiXXelsuècl , EtunpsnvicestpsoàuPie pr Cttala (LITECnio t1), p6]383.1]/a>./theit?thetle="ef=5""a>.[5]./theit?thetle="ef=52"a>.[5]./theit?thetle="ef=53"a>.[53ro6]U.eSchmidbleLllcsajecur3fBurerench Codeae theé be e mlaeituriel tCafthe instied theé bceonabliness o of eht en riton oc ang diff w préc., C desnetandt recodifi.e]/a>./theit?thetle="ef=54"a>.[5 BloodblcilustratSchmidbleLllcsajecur3fBurerench Codeae theé b fai]./theit?thetle="ef=55"a>.[55SchmidbleLllcsajecur3fBurerench Codeae theé b fa:eto TimIbourg [...]uTheng srthin sostluporwhetcw csuer: substancial ir the fother te in, u tha pletcesn acess of forance comp ga is ga ucf busanies t o the Belgian .  ./theit?thetle="ef=56"a>.[5 ECJ,a25 Aprer 2002,saa beC-52/00blD.e2002.2462,w dobeC. earroupot:ies in Fle oemn en drafismoaontaini 5 inshavsoioundry or e ccer, al Prsitiainst the st ctateheyontaini m the directive on pr oduct liai]./theit?thetle="ef=57"a>.[5]Leroy w to Doire  oom obaveméoée of epar fabl p6]296:eto Ali tha re be oe tottiori, enses is innchanmarketo ssmoce-cecuriti d the finaariaituct liabilt as fairr flog polly  behas b ccmic totali.  Alln  tha rcbavemecurcti odfeg cnr otcteomm udge eevisagcreonger bad to economiprime financiis innc when  thyk, wholrresf a dupae margleyontainiin theemeic prtionshe puolly ociaureir enonai]./theit?thetle="ef=58"a>.[5]./theit?thetle="ef=59"a>.[5the. Hencitunie anderly debatRa be stve to ifrwl3fB wasn mda reeve. ndw s2008, (éd.oAs tctrreguld3fBée of ehea the fèth wPare, o t8), sted, espe:nM.-Al ricroix w to Lare givedesnc the susnsuxmÉtpps-Uncs :re givebe coniel toulfiuld3fBure ycl onablp6]39 ff.;3ro6]nchBoitsieu wto Pismfèthreevçlis deeef n giv. 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