Material Rules in Private International Law

Extract

[...] So it is falsely international law. It is international by its object, to actually via the conflict rule direct the situation to this or that point. But once that's done, it's over. It's a weakness insofar as it does not take into account the specificities of international trade. Moreover, the legislator makes the law without thinking about its international application. He makes the law for domestic situations. It's a fundamental contradiction of the conflict rule. Second weakness, sometimes the connecting factor is not reliable, it's not secure. [...]

[...] There are sometimes several laws in conflict. There is potentially a title to the application of one or the other. The conflict of laws rule will come to settle this conflict by means of a criterion of attachment. If we are in the matter of sale, in the absence of choice by the parties, the criterion of attachment is based on the law of the place of residence of the seller. To determine the applicable law for a company, the criterion of attachment is the head office. [...]

[...] For example, defects in consent can affect international contracts. Except that the specificity of international trade is that we are in the presence of professionals who contract, who are moreover, international trade which is riskier. There is a principle in arbitral jurisprudence that has been identified, which is that of the presumption of competence of professionals in international trade. He is presumed to be able to defend his interests. He does not need to be specially protected. As a result, in international trade, cases in which a contract would be vitiated due to a defect in consent are hypothetical. [...]

[...] Beyond the material rules laid down, they are moving in the direction of liberalism, because it is necessary to take into account the specificities. International trade, as we have said, needs freedom. This justifies that what is prohibited in domestic matters is not necessarily so in international matters, thanks to these material rules that take into account the specific needs of trade. Limits of the method. The method of material rules is mainly applied in international trade. But this method also has its limits. [...]

[...] We are not on the same patterns as domestic law. Thirdly, in reality, the conflict rule cannot be completely eliminated. Assuming there are 1,000 material rules, there will always be unresolved questions. One is not opposed to the other, they are complementary. Even if the method of material rules is more appropriate for international trade operations. This is where the conflict rule is useful, it is a backup solution. These two methods are opposed by public order and its imperative rules. [...]