Abstract
This report outlines the status of foreign law in Tunisia. It explains that the application of conflicts rules in Tunisia is always mandatory for the judge. However, these rules are imperative for the parties to the extent that the object of the dispute is a category of rights that the parties cannot dispose of freely. Foreign law is treated as law and not fact; and Tunisian judges, without being obligated to, have the power to ascertain, with the assistance of the parties when necessary, the content of the foreign law. The application and the interpretation of the conflicts rules as well as foreign laws are subject to the control of the Tunisian cour de cassation. The Report also indicates that access to foreign law needs to be enhanced in order to ensure better resolution of private disputes involving foreign elements.
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Notes
- 1.
International Court of Justice, judgment of 28 November 1958, ICJ Report 1958, p. 94.
- 2.
Very few conventions concluded by Tunisia contain choice of law rules. For example, the bilateral convention concluded with France in 1957 (Convention of 9 March 1957) contains in its Article 2 a choice of law rule relating to personal status of French nationals. According to the said Article, the personal status – as defined under Tunisian law – of French nationals is governed by French law.
- 3.
Most of choice of law rules are included in the 1998 Code of Private International Law (Title V – Articles 26 to 76). Other conflicts rules can be found in different pieces of legislation. See for example, Law No. 1957-0003 of 1 August 1957 relating to the regulation of civil status (Article 31); Law No. 2000-93 of 3 November 2000 relating to the promulgation of the Code of Commercial Companies as subsequently modified (Article 10); Law No. 94-36 of 24 February 1994 as modified by the law No. 2009-33 of 23 June 2009 relating to Literary and Artistic Property (Articles 56 and 57). Interestingly, all these dispersed conflicts rules are of unilateral nature contrary to the rules included in the 1998 code, which are mainly bilateral conflicts rules.
- 4.
Décret beylical of 12 July 1956 as modified by the law n°57-40 of 27 September 1957. The Beylical decree of 1956 consisted only of 5 Articles. See Revue Critique de droit international privé, 1957, p. 752.
- 5.
The concept of “personal status” is widely understood to encompass issues of matrimonial property, will and succession as well as status or legal capacity of persons. See, K Meziou, “Tunisie – Droit International Privé”, JurisClasseur Droit Comparé, Fasc. 60, 2012, n°12.
- 6.
See A Mezghani, Droit international privé, États nouveaux et relations privées internationales – système de droit applicable et droit judiciaire international, (CÉRES/CERP, 1991) pp. 286ff; M A Hachem, Leçons de droit international privé, Livre II: Les conflits de lois (droit applicable à une relation transfrontière), (CPU, 1997) 38ff, 110.
- 7.
See for example, the decision of Tunis Court of Appeal, n°56468 of 25.12.1963 (Zacco case), RJL, 1964(4), pp. 66 ff. According to the Tunis Court of Appeal, “when a party to a dispute is a Tunisian and different laws enter into conflict, provisions relating to Tunisian personal status, which are imperative (d’ordre public), are applicable above other laws.”
- 8.
Cass civ n°2994 of 2.4.1964, Clunet, 1968, p. 121, comm. M Charfi.
- 9.
See for example cass civ n°5934 of 21.3.1968, Clunet1974, p. 166, comm. M Charfi.
- 10.
M Charfi, “Abolir les privilèges”, Revue Tunisienne de Droit, 1972, pp. 11ff; K Meziou, “Le droit international privé tunisien en matière du statut personnel”, in J-Y Carlier & M Verwilghen, Le statut personnel des musulmans – Droit comparé et droit international privé, (Bruylant, 1992) pp. 281 ff.
- 11.
A Mezghani, supra n 6, pp. 286ff; M A Hachem, supra n 6 pp. 38ff, 110–111.
- 12.
Law No 98-97 of 27 November 1998 relating to the promulgation of the Private International Law Code, Official Gazette No. 96 dated 1 December 1998, pp. 2332 ff.
- 13.
See K Meziou, “Introduction au code de droit international privé”, in Le code tunisien de droit international privé deux ans après: Première journée d’étude en droit international privé organisée par la Faculté des Sciences Juridiques, Politiques et Sociales (Tunis) le 19 avril 2001, (CPU, 2003) pp. 1ff; M-L Niboyet, “Regard européen sur le nouveau droit international privé tunisien”, in Le code tunisien de droit international privé deux ans après, ibid., pp. 147ff; A Mezghani, Commentaires du Code de droit international privé, (CPU, 1999) pp. 12 ff.
- 14.
A Mezghani, supra n 13, p. 37; M A Hachem, “Le Code tunisien de droit international privé”, Rev. crit. DIP, 1999 at 237.
- 15.
A Mezghani, supra n 13, p. 61.
- 16.
According to Article 28, “the conflict of laws rule is imperative when its object is a category of rights over which the parties cannot dispose of freely (para.1). In other cases, the conflict of laws rule is binding upon the judge unless the parties expressly manifest their willingness to preclude its application. (Para.2)” (Emphasis added).
- 17.
L Chedly & M Ghazouani, The Code of Private International Law (Tunis, 2008) p. 402 (in Arabic).
- 18.
For further analyses see, L. Chedly, L’office du juge et la règle de conflit (deux ans après l’entrée en vigueur du code de droit international privé), in Le Code de droit international privé deux ans après, supra n 13, pp. 97ff; S. Bostanji, “Foreign law before Tunisian judges”, in Table ronde sur le code de droit international privé (4 et 5 mai 2001), (Tunis, 2002) pp. 57ff (in Arabic). M Ben Moussa, “Foreign Law in the Tunisian Code of Private International Law”, The Arabian Journal of Academic and Jurisprudence, 2005, pp. 165 ff (in Arabic).
- 19.
L Chedly & M Ghazouani, supra n 17, pp. 407 ff.
- 20.
Cf. K Meziou, supra n 5, n°19.
- 21.
See, L Chedly, supra n 18, p. 106; S. Bostanji, supra 18, p. 67.
- 22.
An additional condition can be found in Article 71 CPIL. According to Article 71, which relates to the choice of law in tort, “parties may, after the occurrence of the injurious act, agree on the application of the law of the forum as long as the case is pending before first instance courts.” However, the scope of application of this additional condition is limited only to tort actions. It is also argued that the procedural agreement is only acceptable when its purpose is to set aside foreign law. See, A Mezghani, supra n 13, p. 62.
- 23.
A Mezghani, supra n 13, p. 62; S Bostanji, supra n 18, pp. 70–71.
- 24.
For detailed analyses of this question, see L Chedly, supra n 18, p.97 ff.
- 25.
The nature of the rights involved has only impact on the parties’ freedom to apply the conflict of laws rules. L. Chedly, ibid., pp. 104–109.
- 26.
See examples cited by L Chedly, ibid., pp. 100–103.
- 27.
See the decision of the Tribunal of First Instance of Tunis of 29.6.1999 in which the Tribunal of Tunis considered that “only Tunisian law is applicable in divorce matters when one of the parties to the dispute is Tunisian on the date of the conclusion of the marriage contract, and this in accordance with public policy.” Case n°26-855, comm. S Ben Achour, Revue trimestrielle de droit, 2000, pp. 403 ff. See also the decision rendered by the Tunis Court of Appeal n°36946 of 4.11.2006 (unpublished), cited in L Chedly & M Ghazouani, supra n 17, p. 71. In this decision, the court of appeal considered that since the case involved a Tunisian couple who was married in Tunisia, and gave birth to a child holder of the Tunisian nationality, the mere fact that the couple resided abroad could not confer the legal relationship an international character. The court added that in the absence of a foreign element as in the case at hand, there were no rooms for the provisions of CPIL to be applied.
- 28.
It is worth to mention here the decision of the cour de cassation n°5128 of 9.3.2006 (a dispute related to the succession a deceased person who was a foreigner holder of both Swiss and Iranian nationalities) in which the Supreme Court held that the dispute was subject to articles 54 to 56 CPIL relating to choice of law in matter of succession after upholding the international character of the dispute. Bulletin de la cour de cassation, partie procédure civile et commerciale, 2006, p. 277 (in Arabic). In another decision, which was rendered in the occasion of a dispute relating to an international contract, the cour de cassation overruled the decision of the lower courts because they did not respect the approach prescribed by the Code. Cass civ No. 1875 of 21.9.2004, Bulletin de la cour de cassation. Civ. 2-2004, pp. 159ff (in Arabic). The court held that “article 26 CPIL provides that the judge shall apply the rules set forth in the present code when the legal relationship is international and, in the absence of rules, the judge shall identify the applicable law by an objective determination of the connecting legal category. The correct approach in the case at hand requires from the trial court to categorize correctly the disputed after it makes sure whether the contract is international or not and then designate the governing law by applying the choice of law rule. Since the appealed judgment and before it the judgment of first instance did not, in accordance to the provisions of CPIL, followed this mandatory approach [it violated the law] especially articles 26 and 28.”
- 29.
Cass civ n° 2830 of 7.12.2006, Bulletin de la cour de cassation. Civ. 2006, pp. 283ff (in Arabic). In this decision, which was rendered in a matter related to succession, the court criticized the decision of a lower court that did not follow the approach prescribed in the code. According to the Supreme Court, “the approach of designating the applicable law in the Tunisian private international law is principally based on a conflictual approach which follows a logical reasoning. This consists in categorizing first the legal relationship in question according to the categories recognized in Tunisian law; then, applying the choice of law rules corresponding to the said category in order to determine the legislative competence of either the lex fori (Tunisian law) or the foreign law…”.
- 30.
Cass civ n°7146 of 26.4.2005 (unpublished) cited in L Chedly & M Ghazouani, supra n 17, p. 426.
- 31.
Chedly, supra n 18, pp. 109–111.
- 32.
According to the Office of Tunisian in Abroad, about 10% of the Tunisian population are emigrants living abroad. Europe is the first destination with 84.5% of Tunisian emigrants living in different European countries especially France (54.7%), Italy (15.5%), and Germany (7.1%). Emigration to other Arabic countries is estimated to 12.3%. http://www.ote.nat.tn/index.php?id=133. For analysis of emigration from private international law perspective, see K Meziou, “Migrations et relations familiales”, Collected Courses, Vol. 345, 2009, pp. 9 ff.
- 33.
Article 62: “A contract shall be governed by the law chosen by the parties. To the extent that the applicable law has not been chosen by the parties, the contract shall be governed by the law of the by the law of the State where the party whose obligation is decisive for the characterization of the contract has his/her domicile, or, when the concluded contract falls within the scope of his/her professional or commercial activity, the law of his place of business.”
- 34.
See cass civ No. 1875 supra n 28.
- 35.
Although, in practice, Tunisian courts do not sometimes strictly comply with its commands. For example, in a recent case involving a divorce between a Tunisian emigrant resident in Japan with a Japanese national (wife), the Court of First Instance of Tunis, without any reference to the CPIL, decided the case as if it were purely domestic and pronounced the divorce on the basis of Tunisian substantive law (Code of Personal Status) without any reference to choice of law rules included on the CPIL, although, in this case, Japanese law should have been applied in application of Article 49 CPIL. Tribunal of First Instance of Tunis, decision n°81855 of 13.12.2011 (unpublished).
- 36.
Authors justify this solution by the logical connection that exists between invoking conflict of laws rules and invoking the foreign element of the dispute. They base their opinion on certain provisions of the Code of Civil and Commercial Procedures (CCCP) which allow the judge to take into consideration facts that the parties have not expressly invoked to the condition that the principle of audi alteram partem is respected. This is inferred from a combination of several articles of CCCP namely articles 4 and 86 CCCP. Article 4 provides that “every party shall have the right to consult the documents of the procedure and all other documents submitted by the other party.” Article 86 states that “the judge can, if he deems it necessary, through a juge rapporteur, proceed to any measure of instruction…he deems helpful to reach the truth.”
- 37.
See, L Chedly, supra n 18, pp. 112ff sp. 117; M. Ben Jemia, S. Ben Achour & M Bellamine, “L’ordre public en droit international privé tunisien de la famille”, in N. Bernard-Maugiron & B. Dupret, Ordre public et droit musulman de la famille en Europe et en Afrique du nord, (Bruylant, 2012) p.200.
- 38.
In exceptional cases, however, foreign law can be applied without recourse to choice of law such as the application of foreign lois de police. According to Article 38 para.2 “a judge shall give effect to provisions of foreign law non designated by the conflict of laws rules, if it appears that the foreign law has close connection with the legal situation in question and that the application of the said provisions is essential having regards to their pursued purpose.”
- 39.
S Bostanji, supra n 18, p. 75; A Mezghani, supra n 13, p. 70.
- 40.
According to Article 32 in fine, “if the content of the foreign law cannot be established, Tunisian law shall apply.”
- 41.
Article 32 states as follow: “Judges may, within the limits of their knowledge and within a reasonable time limit, ascertain ex officio the content of a foreign law designated by the conflict of laws rule, and that with the assistance of the parties if necessary. In the other cases, the party whose claim is based on a foreign law shall establish its content. The proof shall be established in written including affidavits of law. If the content of the foreign law cannot be established, Tunisian law shall apply. In any case, adversarial principle shall be respected.”
- 42.
S Bostanji, supra n 18, pp. 76 ff.
- 43.
See, L Chedly, supra n 18, p. 121 ff.
- 44.
The typical example given by Tunisian scholars are those of Articles 51 and 52 CPIL which concerns respectively choice of law rules in maintenance obligation and the establishment of parent-child relationship. According to Article 51, “Maintenance obligations shall be governed by the national law of the maintenance creditor, or the law of his/her domicile, otherwise, by the national law of the maintenance debtor or by the law of his/her domicile. The judge shall apply the most favourable law for the maintenance creditor (last para. omitted)” As for Article 52, it states that “The judge shall apply the most favourable law for the establishment of the parent-child relationship, between the national law of the defendant or the law of his/her domicile, or The national law of the child or the law of his/her domicile (last paragraph omitted)”. See, L Chedly, “Structure de la règle de conflit et intérêt de l’enfant”, RJL, 2002 n°spécial Famille, pp. 9 ff.
- 45.
For further developments, A Mezghani, supra n 13, pp. 72–74; M Ben Moussa, supra n 18, p. 175; L Chedly & M Ghazouani, supra n 17, pp. 455 ff. See for example the preparatory judgement of the Tribunal of First Instance of Tunis n°9901 of 13.10.1999 (unpublished) in which the tribunal required from the plaintiff who claimed the application of Swiss law to produce evidence of its content and the way it is interpreted in Switzerland according to academics and case law. Judgment quoted in L Chedly & M Ghazouani, supra n 17, p. 463–464.
- 46.
M Ben Moussa, supra n 18, p. 174.
- 47.
M. Ben Jemia, S. Ben Achour & M Bellamine, supra n 37, p. 203.
- 48.
A Mezghani, supra n 13, p. 74.
- 49.
M Ben Moussa, supra n 18, p. 173; S Bostanji, supra n 18, pp. 84.
- 50.
See, M. Ben Jemia, S. Ben Achour & M Bellamine, supra n 37, p. 203.
- 51.
Article 35 states that “unless otherwise provided by the law, renvoi shall not be admitted, whether it leads to the application of the Tunisian law or the law of a different country”. For critics against the exclusion of renvoi see L Chedly, “Le rejet inopiné du renvoi par le Code de droit international privé”, in Mélanges offerts au Doyen Sadok Belaid, (CPU, 2004) pp. 295 ff.
- 52.
Article 33 states that “the foreign law designated by conflict of laws rules includes all applicable rules in accordance with the formal sources of that law.”
- 53.
M Ben Moussa, supra n 18, pp. 165 ff.
- 54.
Article 31 CPIL: “Shall be applicable the transitional provisions of a law designated by the conflict of laws rule.”
- 55.
A Mezghani, supra n 13, p. 75; L Chedly & M Ghazouani, supra n 17, p. 469.
- 56.
L Chedly & M Ghazouani, ibid.
- 57.
For example, Tribunal of First Instance of Tunis n°9901 of 13.10.1999 supra n 45.
- 58.
L Chedly & M Ghazouani, supra n 17, p. 470
- 59.
L Chedly & M Ghazouani, ibid., p. 459.
- 60.
A Mezghani, supra n 13, p. 73; L Chedly & M Ghazouani, supra n 17, p. 460.
- 61.
However, according to other opinions, Article 32 does not confer a mere discretion to the judge in the meaning that Tunisian judges are not free to decide whether or not bring proof of foreign law. See M Ben Moussa, Commentaries on The Code of Private International Law, (Tunis, 2003) pp. 303, 306–307 (in Arabic); idem, “Foreign Law in the Tunisian Code of Private International Law”, The Arabian Journal of Academic and Jurisprudence, Vol. 32, 2005, pp. 165 ff (in Arabic); M A Hachem, “Foreign Law and International Public Order”, in Colloque sur le code tunisien de droit international privé (12 mars 1999), (CEJJ, 2000), pp.81ff (in Arabic), idem, supra n 12, p. 239. According to this opinion, Article 32 simply tries not to impose an unrealistic and absolute obligation on the judges since in certain cases it is very difficult to ascertain the content of foreign law.
- 62.
See, L Chedly, supra n 18, p. 125; S Bostanji, supra n 18, pp. 80ff; M. Ben Jemia, S. Ben Achour & M Bellamine, supra n 37, p. 201; A Mezghani, supra n 13, pp. 71–72; L Chedly & M Ghazouani, supra n 17, p. 453 ff.
- 63.
S Bostanji, supra n 18, pp. 80–81.
- 64.
Cass civ n°5128 of 9.3.2006, supra n 28; Cass civ n°1875 of 21.9.2004, supra n 28; Cass civ n° 2830 of 7.12.2006, supra n 29.
- 65.
According to Article 175(1) of the Code of Civil and Commercial Procedure, “Appeal against judgments of last resort is possible in the following cases: (1) when the judgement contains a violation, a misapplication or misinterpretation of the law”.
- 66.
For exemple, cass. civ. n° 7146 of 26.5.2005, (unpublished) quoted in L Chedly & M Ghazouani, supra n 17, p. 472; cass. civ. n°2830 of 7.12.2006, supra n 29. Comp. with supra n 9.
- 67.
See for example, K Meziou, “Le principe de monogamie et la formation du mariage”, in Polygamie et répudiation dans les relations internationales – Actes de ma table ronde organisée à Tunis le 16 avril 2004, Editions ABConsulting, 2006, pp.9ff; idem, “Migrations et relations familiales”, supra n 32.
- 68.
In addition to CPIL, there is a special law that regulates issues of civil status. See for example, the law n°57-3 of 1 August 1957 regulating Civil Status, published in the Official Gazette of 30 July and 2 August 1957. As for regulations, there are several notices (circulaires) of the Ministries of Interior and Justice which govern the activities of official registrars and notaries.
- 69.
Article 46 para. 2 requires from civil status officer or public notary to not “conclude the marriage only upon the presentation of an official certificate which attests that the concerned future spouse is free from any other marital union”.
- 70.
The only provision which relates to the application of foreign law is Article 73 TAC. According to this Article, “(1) the arbitral Tribunal shall decide the dispute in accordance with the law agreed upon by the parties; (2) in the absence of designation by the parties, the arbitral tribunal shall apply the most appropriate law to the dispute; (3) the arbitral tribunal may decide ex aequo et bono if the parties have expressly authorized to do so; (4) In any case, the tribunal shall decide in accordance with the terms of the contracts and shall take into account the usages of commerce applicable to the transaction”.
- 71.
Article 7 TAC states as follow: “No arbitration is permitted in (1) matters regarding law and order; (2) disputes related to nationality; (3) disputes concerning personal status except for financial that ensue there from; (4) matter where no arbitration is permitted; (5) disputes involving the State, public administrative authorities and local communities, with the exception of disputes arising from international economic, commercial or financial relationship, regulated by chapter three of the present Code (i.e. international arbitration).”
- 72.
It should however be mentioned that conciliation is mandatory before courts of first instance in Tunisia in matters relating to labor and family affairs. However, there are no specific ADR provisions except for Arbitration.
- 73.
Unfortunately, except for a certain number of decisions of the Cour de Cassation, which are usually reported in the Annual Bulletin of the cour de cassation (last published issue concerns decisions rendered in 2009), case law – especially lower court decisions – are not officially reported. It is therefore for researchers and scholars to use their personal network in order to obtain information about new decisions and make them available for the public. Still, the number of these (officially unreported) decisions that can be found in Tunisian law reviews is far from being sufficient.
- 74.
As examples, it is possible to mention here the portal of the Ministry of Justice (www.e-justice.tn) which provides information about Tunisian legal system and, most importantly, includes a database of the published decisions of the Tunisian Cour de cassation (but only in Arabic) since 1959 (last visited, September 2014). There is also the official homepage of the Tunisian Official Gazette (www.iort.gov.tn) in which all recent legal texts are regularly published in Arabic, French and English. See also the National Portal of Legal information, which also provides different legal information in Arabic, French and English (http://www.legislation.tn/en). Other sites also provide information about Tunisian law (in French), for example www.juristetunisie.com.
- 75.
See, for example, the Centre of Judicial and Legal Research which has recently published some commentaries on several Tunisian codes including English translation of their provisions.
- 76.
For example, the Convention of legal and judicial assistance concluded with Algeria (26 July 1963, Article 1), China (4 May 1999, Article 27), Emirates (7 February 1975, Article 1), Pologne (22 March 1985, Article 8), Russia (26 June 1984, Article 43), Argentine (16 May 2006, Articles 8–10), Spain (24 September 2001, Article 26).
- 77.
For example Convention of Ras Lanouf of 9 and 10 March 1991 concluded between Countries of Arab Maghreb Union ratified by Tunisia by virtue of the law n°93-91 of 29 November 1991 (but has not entered into force yet).
- 78.
The Riyadh Convention was ratified by Tunisia by the law n°85-69 of 12 July 1985 (Official Gazette n°54 of 16 July 1985). According to the first Article of the Riyadh Convention (entitled Exchange of information), “ministries of justice of the contracting parties shall regularly exchange the text of legislations in force, legal and judicial publications, pamphlets and studies containing legal statutes and judgments, as well as information pertaining judicial regulations.”
- 79.
For example, Article 2 of the Riyadh convention requires from contracting parties to “lend material and moral support, as well as qualified scientific personnel, to the Arabic Centre of Legal and Judicial Research, to fully undertake its role in the documentation and development of Arab cooperation in the legal and judicial fields.” A homepage was set up in order to facilitate exchange of information. Legal information about member countries of the Arab League can be found at the homepage of the League of Arab States (http://www.lasportal.org) under “legal network of Arab”. This site provides information about domestic law, case law, international conventions…etc. (in Arabic).
- 80.
This information is based on personal correspondence.
- 81.
Tunisia has recently joined the Hague Conference on Private International Law and became on 4 October 2014 the 78th Member of the Conference See, https://www.hcch.net/en/news-archive/details/?varevent=387
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Chedly, L., Elbalti, B. (2017). Tunisia: Treatment of Foreign Law in Tunisia. In: Nishitani, Y. (eds) Treatment of Foreign Law - Dynamics towards Convergence?. Ius Comparatum - Global Studies in Comparative Law, vol 26. Springer, Cham. https://doi.org/10.1007/978-3-319-56574-3_29
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