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Lois de police. Gael CHADLI Simon JAGU. DEFINITION. According to Roma and Hague conventions : Law of immediate applicability are rules whose application is necessary for the safeguard of political, social and economical organisation of the state. (Phocion Francescakis)

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lois de police
Lois de police

Gael CHADLI

Simon JAGU

definition
DEFINITION
  • According to Roma and Hague conventions :

Law of immediate applicability are rules whose application is necessary for the safeguard of political, social and economical organisation of the state. (Phocion Francescakis)

  • However, this definition is not satisfying and any attempt to systematize is necessarily bound to fail.
  • Immediate applicability laws find a criterion of identification in their finality
  • The purpose and the content of the concerned rules mandate its application
lois de for
LOIS DE FOR
  • Lois de for or “lex fori” : The authority which appreciates the international private relations judges according to the only standards which constitute its own legal order.
  • The protection of the organisation of the state is guaranteed by the concept of mandatory rules or « law of immmediate applicability » which will prevail over the law designated by the conflict rules.
  • Lois de police present two elements : the pursuit of an organisational purpose of the state and the necessity of its application to achieve that purpose
foreign laws

FOREIGN LAWS

Laws of immediate applicability exist also abroad.

Do we must take them into account in France ?

As soon as the French court has accepted to establish its competencies, it can’t refuse to apply the law of foreign immediate applicability under the pretext that it would serve the interests of the foreign state.

But going further do we must apply in all cases the foreign law of immediate applicability even though the normal bilateral conflict rule doesn’t specify it ?.

conflicts between a local and a foreign law of immediate applicability
Conflictsbetween a local and a foreign law of immediate applicability
  • This conflict differs from a bare conflict of law
  • There is a true conflict when more than one legisl ator stated the wish that their law is applied in a cross – border situation
  • In the case of a conflict arising between the mandatory rule of the forum and a foreign law of immediate applicability, it seems difficult to find a situation where the court will not give priority to its law of immediate applicability
conflicts between two foreign laws of immediate applicability

Conflictsbetween two foreign laws of immediate applicability

The judge has a neutral position in relation to the law to be applied

One should differentiate the case of a false conflict and the case of a true conflict

It exists a true conflict if the choice for one law is detrimental for the other system

example of a true conflict

EXAMPLE OF A TRUE CONFLICT

An employee of a company which is located in a country A, working on another country B where he is domiciled.

The legislator of the country A prohibits every kinds of joining a Trade Union whereas the country B forbids any employer to dismiss its employees under the reason that they belong to a Trade Union

Which choice has to be applied between the two laws of immediate applicability ?

conclusion

Conclusion

To conclude, the contracting parties should choose together by a mutual agreement the law which will be applied for their contract before signing it.

They must identify the eventual laws of immediate applicability which could cancel particular aspects of the agreement.