Public order, private international law, law of police, Cour de Cassation, moral rights, French law, international trade law, conflict rule, imperative rules
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Abstract
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Abstract
The Cour de Cassation considers moral rights as a law of police, applicable internationally, and may set aside foreign law if it contradicts French public order.
Extract
[...] He is not the guardian of a for, he is a private judge. He is not the defender of a particular value. Nevertheless, we consider that he is the guardian of a transnational OP. It is an OP that reflects widely shared values at the international level. The ex-type is the prohibition of corruption, there are several arbitration sentences that have considered that corruption was contrary to a transnational OP, that is to say, common. We have a UN convention of 2003 called the 'Merida Convention' on international corruption. [...]
[...] However, it is an in concreto analysis that is made, so we look at whether the brevity of the remedy affects the public order in light of the facts. Laws of Police.- There are many manifestations in the field of international trade. A law of police applies internationally regardless of the applicable law. The law of police is an internationally imperative law, regardless of the law designated by the conflict rule. This is a strong sign of imperativeness. It is in international trade law that we have the best examples. Some laws are more important than others. [...]
[...] If we reason in an internal logic, we have article 6 of the Civil Code that talks to us about the set of imperative rules of French law. But we are in international matters. There are public orders. This is a factor of complexity. Internal Public Order.- First, we will have the internal public order. Let's imagine that the parties have chosen the law of State X to govern their contract. They were not obliged to do so. Normally, as a principle, this implies the application of the public order of this chosen law. [...]
[...] So, as soon as there are US sanction laws, beware of the connection with the US, which can be very tenuous. Moreover, extraterritoriality is criticized by States. The GDPR applies extraterritorially. Another example, the duty of vigilance directive also applies extraterritorially. Trump said it was out of the question that companies be subject to it. It is clearly a power struggle, it is geopolitics. Law is a weapon among others in the trade war, it is not neutral. International Public Order - And is there a real international OP? Which could be called 'transnational'. [...]
[...] Another example concerning international subcontracting. This is important because international trade relies heavily on it. In FR, we have the law of December which protects the subcontractor and offers him a direct action against the contractor. This has been analyzed as a law of police. If the subcontractor is German and the work is carried out in FR, the 1975 law will apply automatically and will therefore offer a direct action of the subcontractor. In intellectual property law, the author has a moral right to his work. [...]
