Les Conventions Internationales Relatives a la Competence Judiciaire et a l'Execution des Jugements

Les Conventions Internationales Relatives a la Competence Judiciaire et a l'Execution des Jugements

Bibliographic Details

Paris: A. Pillet. 1913

Book Review

In the present volume the eminent Professor of the Faculty of Law of Paris treats of four international conventions now in force relating to the jurisdiction of courts, and to the enforcement of foreign judgments: The Franco-Italian treaty of March 24, 1760; the Franco-Baden treaty of April 16, 1846; the Franco-Swiss treaty of June 15, 1869; and the Franco-Belgian treaty of July 8, 1899. The object of the author in this work is professedly a practical one and no attempt is made to establish a general theory with respect to the subject-matter in hand. Although the work appeals therefore primarily to the legal profession of the countries concerned, it contains also a lesson of great importance to all interested in the subject of private international law, which should serve as a warning to those who believe in international agreements as a panacea for the removal of all difficulties in the application of laws between the nations of the world. In view of the limited scope of the treaties and the extremely favorable conditions attending their conclusion, it would seem that their object should have been attainable with comparative ease. Concluded between countries whose private law rests substantially on the Code Napol6on, and whose basic principles in the conflict of laws governing the subject-matter.under consideration are identical, Professor Pillet nevertheless has to admit that these treaties have not come up to the expectation entertained at the time of their making. “Instead of inaugurating among the peoples the reign of law,” the learned author says, “we have ended by encumbering the archives of our courts with innumerable briefs.

Introduction to Les Conventions Internationales Relatives a la Competence Judiciaire et a l'Execution des Jugements

What better example of this fact could be cited than the treaty of 1869 concerning which, on many points, after forty years of constant application, we still ask what is its meaning, or again the treaty of 1899, which the very day after it went into effect showed enormous discordances and gave rise to controversies without end.” Notwithstanding the disappointing result of these treaties, the illustrious professor does not suggest an abandonment of the attempt to reach an agreement in the conflict of laws by international conventions; he merely wishes to insist upon the fact that all progress in this direction will, in the nature of things, be very slow and be brought about only if the contracting parties have the same thoughts and intentions and succeed in expressing them in clearer and more concise language.

Context of Les Conventions Internationales Relatives a la Competence Judiciaire et a l'Execution des Jugements

Viewed from the standpoint from which this work was written, it is admirably done. Under each treaty the author considers in detail its scope, both as to subject-matter and as to the persons who can invoke the treaty, and its relation to the common law of the countries concerned. The principles upon which the treaties are based and the qualifications and exceptions thereto are set forth with great clearness. In conformity with the practical aim in view, the author discusses under each treaty the adjudications by the courts of the contracting countries. Each decision is submitted to a critical examination which invariably throws a flood of light upon the problem involved.

Thesis Statement

Nor does Professor Pillet confine himself to a consideration of the questions actually raised or suggested by the adjudicated cases. On every hand he makes inquiries concerning the application of the ordinary rules of private international law with a view of determining whether an extensive interpretation should be given to the rule laid down in the treaty, or a limitation should be placed upon its apparent scope. The text of the treaties, the protocole drawn up by the plenipotentiaries who signed the FrancoSwiss treaty, and the message of the Federal Council of Switzerland to the High Federal Assembly concerning the Franco-Swiss treaty, are found in an appendix.

More about Les Conventions Internationales Relatives a la Competence Judiciaire et a l'Execution des Jugements

On account of the fundamental differences existing in the Continental and Anglo-American law with respect to the subject-matter of the treaties, little need be said concerning the actual content and nature of the problems raised by them. A general statement concerning the Franco-Swiss and the Franco-Belgian treaties, which are by far the most important ones of the.treaties under discussion, must suffice. Both in the matter of jurisdiction and in the enforcement of foreign judgments they maintain the characteristic Continental point of view. The jurisdiction of the courts in personal causes of action is not left to the accident where personal service is made, but is fixed by law (domicile of the defendant, lex loci contractus, etc.). Personal service or submission to the jurisdiction of the court, on the other hand, is not insisted upon; it is sufficient if the defendant was duly cited before the court so as to have had an opportunity to defend the action. In the enforcement of foreign judgments also radically different notions exist in the two systems of law.

Analysis of the Text

Under our law foreign judgments (including those of sister States) are never enforceable as such. Execution will issue only with respect to domestic judgments. Hence the necessity of a new suit and judgment based upon the foreign judgment before execution will lie. On the Continent a judgment constitutes no new cause of action. Foreign judgments, if enforceable at all, are enforceable as such. Execution, however, will issue only after an exequatur has been obtained from the proper tribunal. The conditions upon which a foreign judgment will be declared executory differ widely. The French courts, for example, will, in the absence of treaty, reexamine the merits of the foreign judgment before granting the exequatur. See Cassation, June 28, 1881 (Sirey, 1882, 1, 33); Cass. Feb. 9, 1892 (Sirey, 1892, 1, 201); Cass. Dec. 9, 1903 (Dalloz, 1906, 1, 354). Such reexamination is excluded, however, by the treaties undo consideration. There are numerous and vital differences between the Franco-Swiss and the Franco-Belgian treaties. Only one of them need be noticed here.

Other Aspects

The Franco-Swiss treaty lays down common rules of jurisdiction for both countries, so that the same rule will govern, whether the suit is brought in the one country or in the other. The Franco-Belgian treaty, on the other hand, assimilates the subjects of the contracting parties juridically so that in the matter of jurisdiction the local law of each country, applicable to the subjects of such state, is applied also to the subjects of the other state. One rule may therefore govern the cases brought in the French courts and another rule those brought in the Belgian courts. Professor Pillet prefers the method adopted by the Franco-Swiss treaty, for the reason that the laying down of common rules carries out as far as possible the idea of equality and avoids unforeseen circumstances in the application of the treaty.

Book Review Details

This legal book review was published in:

The American Journal of International Law,Vol. 8, No. 2 (Apr., 1914), pp. 408-411Published

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