Conflicts of jurisdiction (Civil Procedure International) 2010
The purpose of conflicts of jurisdiction:
If the dispute has no foreign element, it is the law and the dispute will be handled by a national court in accordance with the procedural rules of the forum (rules of territorial jurisdiction and awarding of the new Code of Civil Procedure in France) and applied according to the rules of the state concerned.
Otherwise it will apply the international conflict of jurisdiction, in the presence of one or more foreign elements that can hold the nationality of the litigants, the domicile or residence of the litigants in different countries, and also the source of the dispute (accident, contract).
The first question concerns the international jurisdiction, and it is called direct jurisdiction.
Existence of conflicts of jurisdiction in the presence leads to international jurisdiction (direct responsibility). Contract made in London, a plaintiff domiciled in France and the other litigant in Germany: what court? Who is responsible?
French rules of direct jurisdiction will tell us who understand. When the French court receives such a dispute, it will ask whether it is internationally competent to rule, then it checks its jurisdiction. French rule of direct jurisdiction defines the cases in which a French court can be entered. If the French courts have jurisdiction, a second question arises, the presence of a foreign element that has an influence on the proceedings before the French court.
Do the internal rules of procedure will play when the dispute has an international character or must use a specific procedure? The international nature of the dispute there an influence or not the procedure followed by the court? The French judge normally applies its own rules of jurisdiction. There are rules that are almost the same, whether you are in the presence of internal or international conflict, with few exceptions, these are some special rules specific to international disputes including the subpoena, the notification of someone a domiciled abroad and evidence.
The same goes for obtaining evidence abroad.
A problem arises in distinguishing what is the substance and procedure, as the law of the procedure is for the law while the background can be a foreign law. A third issue arises where a decision is rendered in a foreign country, this decision may be invoked and executed in France? This is the question of the effect of foreign judgments or international effect of the decisions of foreign courts.
- A marriage between a French and an English woman, a divorce is filed before the English courts, is that the husband can remarry French in France? It is then necessary that the English decision is authority in France. This example concerns the recognition of foreign decisions and is asked to do by the French judge to spend the rule of law resulting from the decision.
- A debtor is condemned by the Mexican courts to repay a debt. The creditor wants to continue the execution of the decision on the debtor's assets in France. Can obtain the enforcement of the decision?
Tags: Code of Civil Procedure, territorial jurisdiction, French rules