France – The Evolving Balance Between the Judge and the Parties in France
- 384 Downloads
Balancing between conflicting considerations of private international law justice on the one hand and procedural economy on the other, the Cour de cassation has over the past decades progressively strengthened the role of the judge. Today, the application of the conflict of laws rule is mandatory if the proceedings involve rights which the parties cannot freely dispose of or if, in the case of rights which the parties can freely dispose of, one party invokes the conflict of laws. However, as fundamental changes have affected both substantial and conflict of laws rules, the concept of ‘rights which the parties can freely dispose of’ has become inappropriate, and the position of the Cour de cassation is expected to evolve in the near future. The judge who has acknowledged that foreign law is applicable, either because he has applied ex officio the conflict of laws rule or because a party has pleaded foreign law, must ascertain its content, with the assistance of the parties and even personally if necessary.