A comparison between Anglo-Saxon and French rights (Fr)
Contribution by Kenneth Weissberg to the Working Group of French Foreign Trade Advisers dealing with competing international influences of French law and Anglo-Saxon law: some proposals for legislative adaptations likely to maintain the influence of French law.
Are we really witnessing, as the subject of our study suggests, a predominance of Anglo-Saxon law over Romano Germanic civil law in the contemporary economic world?
The answer is uncertain because, as the study of the Council of State of June 2001, relating to the international influence of French law, points out, this is undeniable in many international legal fields, particularly in that of the treaties which constitute the supreme international legal norm and that of Community law, since within Europe we observe a fusion of the legal rules specific to the two competing systems of common law and codified civil law.
In fact, we believe that, generally speaking, the same economic constraints lead to the application of fairly similar rules in the United States and in Europe. General adherence to the sacrosanct principle of contractual will limited only by the requirements of international public order, makes artificial the idea of any predominance of the rule of law of a market economy country over a other.
However, the fairly banal observation to which the practitioner of international law can indulge daily and which justifies a strategy of legal influence conducted over the long term, calling for some adaptations of our legislation and our practices to maintain the influence of our law is threefold :
1) First observation: Insufficient defense of the French language
English is the commercial language commonly used today by most industrial companies, which means that international contracts are most often written in English.
It is extremely common for a contract between a French company and a German or Asian company to be drawn up and signed in its final version, in English.
Similarly, will it be observed that many large French and German companies have chosen to adopt English as the language of internal communication systematically used within their group and that the European Commission, which is currently planning the establishment of an Intranet for the communication of network-related information between the authorities and the national courts of the 15 Member States and the Commission plans to use 'a commonly understood language', in other words English.
This predominance of the English language obviously favors the United States, the nation which has the most important internal market and a legal system of common law attaching great importance to the jurisprudence, that is to say to the normative character of the precedents.
It obviously favors England as well, which is an almost obligatory passage from America to Europe, with its own highly technical sectors such as financial and insurance law. England being part of the European Union, it imbues its influence with European Community law which in turn influences the law of European civil law countries.
The consequence of this primacy of the English language is that the documentation base used by jurists around the world is very largely in English, which leads them to choose the ease consisting in adopting preexisting formulas presumed to offer solutions to their specific needs. .
The French legislator sought to limit the perverse effects of this systematic recourse to models drawn from a foreign law by imposing the use of the French language for the conclusion of the public contracts in France. Article 5 of the law of August 4, 1994, known as the Toubon Law, provides: Whatever the object and forms, the contracts to which a legal person governed by public law or a private person performing a public service mission are parts are written in French.
These provisions are not applicable to contracts concluded by a legal person governed by public law managing activities of an industrial and commercial nature and to be carried out entirely outside the national territory.
The contracts referred to in this article concluded with one or more foreign contracting parties may include, in addition to writing in French, one or more versions in a foreign language which may also be authentic.
A party to a contract concluded in violation of the first paragraph may not rely on a provision in a foreign language which would be prejudicial to the party to which it is opposed.
This law which aims at the defense of the French language protects at the same time French law with the shame dictated by economic opportunism.
Thus by application of this law, the sale of Canadian aircraft to French Civil Security is materialized by the conclusion of contracts in French subject to the French public procurement code and to French jurisdictions, while the sale of European aircraft worldwide is achieved by the conclusion of a contract in English ultimately subject most often to the law of the forum that the parties have chosen to resolve disputes.
In our opinion, it would be advisable to extend the provisions of the Toubon law to all contracts likely to be executed in France, whether concluded between legal persons under public or private law.
Such a provision, incorporated into the Civil Code, would complete the privilege of Articles 14 and 15 of the Civil Code, which, by providing that the French courts are always competent to hear disputes in which one of the parties is French, have ensured predominant place of French law for two centuries.
In this regard, it should be noted that the application of Articles 14 and 15 is excluded between the signatories of the Brussels Convention, but still remains applicable with regard to the United States.
2) Second observation: Shortcomings in our law of evidence
The common law system is adversarial and promotes greater ease for the parties to hear the trial and establish the evidence for their grievances. The discovery procedure (discovery of evidence) is infinitely more efficient than that of pre-constituted evidence, which prevails in our country.
While in the French procedure the testimonies must be produced in writing and are as difficult to verify as to fight, in the American procedure the witnesses are heard contradictorily by the lawyers of the parties, before the trial and their depositions are recorded in shorthand, in order to be able to later establish its sincerity and contradictions by means of cross-examination.
As a result, Anglo-Saxon commercial procedures are never criminal, because it is not necessary to resort to judicial information, conducted by a criminal investigative judge to obtain the evidence necessary for the success of his case.
This effectiveness of the law of evidence translates into a greater confidence in American justice than in French justice delivered in particular to the avatars of the 'stays of judgment' imposed by article 4 of the Code of Criminal Procedure on commercial jurisdictions when a criminal complaint comes, very often dilatory, to halt the course of the trial. 80% trials in the United States never reach the final stage of the judgment and find their solution by the transactional route because, in the American procedure, the preparation most often results in enlightening the parties on their respective chances of success before that it is too late and that a judgment with heavy financial consequences does not intervene. The American judge is more a referee of the legal combat than a sage who is asked to say ultimately who is wrong and who is right.
In France the trial is too often "a good deal" because, relatively inexpensive (it is common that a trial costs 10 times more expensive in the USA or in England than in France), it most often results in favorable convictions financially for the defaulting party. The principle of strict concordance of the economic damage suffered and the allocation allocated, accompanied by a legal interest rate significantly lower than that of the financial market, makes it advisable to make a bad trial last as long as possible.
Anglo-Saxon justice, more costly, since it is up to the lawyers to conduct the trial at the cost of long depositions generally billed by the hour, does not have the same repugnance as the civil justice to impose substantial and truly restorative compensation to the losing party.
This has not escaped the attention of international contractors who are always seeking to seize the jurisdiction most inclined to satisfy their economic objectives.
It would therefore be advisable to reinforce the attractiveness of French courts to modify our law of evidence to include elements of 'discovery' like 'preliminary examination' adopted by the code of civil procedure of Quebec and concomitantly with legally restrict the possible use of criminal procedure in commercial matters by abolishing the stay of proceedings rule and by encouraging the justice system to dismiss criminal complaints of which the commercial basis is obvious. Article 700 of the NCPC should also be amended to impose the reimbursement of the actual costs of the proceedings and the costs of lawyers on the unsuccessful party.
3) Third observation: Disadvantage of our judicial system and insufficient propagation of French law:
Magistrates and lawyers are more in osmosis in the Anglo-Saxon system than in the civil system. American judges facilitate the work of the lawyers they accompany in their actions, while French judges are wary of it and more often than not perceive it as obstructing the course of justice which they consider to be their responsibility.
As a result, the American courts have more favor with lawyers than the French courts suspected of being inclined to render expeditious justice in which equity (and sometimes chauvinism) are often disguised under legal reasoning. 'opportunity.
It would therefore certainly be advisable to review the fundamentals of teaching the profession of magistrate in France as well as the principles governing the relationship between judges and lawyers.
For example, is the duty of sincerity of litigants and their counsel vis-à-vis the court sanctioned in American law by the rules of "contempt of court": a party who does not refer to a court injunction disclose documents, or which conceals evidence incurs heavy penalties including criminal. There is nothing similar in French law where lying is not sanctioned as such.
This is why arbitration is more conducive to the conduct of a quality trial because it allows the parties to agree in the “arbitration agreement” on the procedure they intend to adopt and to appoint specialized arbitrators. in the matter that concerns them.
French law offers a wide reception to the arbitration procedure, but it is still insufficiently used.
With regard to contractual law, the Anglo-Saxon model also has its limits: The considerable length of contracts, due to the fact that their drafters seek to cover all possible hypotheses, having been the subject of specific case law, is to both indigestible to the uninitiated that are businessmen and civil lawyers accustomed to
general references to the law and to more concise contracts on which are stipulated only the points which the law abandons to contractual freedom.
Because contracts of hundreds of pages become the almost exclusive affair of lawyers experienced in the exercise of scholarly reading, they tend to inconvenience businessmen concerned with clarity and not to hinder their negotiations, and that is why We are witnessing today a search for simplicity for contracts that everyone can read and understand, and which refer to a law that we know is fair and effective.
However, civil law has the merit of conciseness and Cartesian logic, which deserves to be known.
The influence of French civil law in the world necessarily depends on the effectiveness of its dissemination and it is appropriate in this regard to implement the recommendations of the Council of State, appearing at the conclusion of the aforementioned report.
1) Maintain knowledge of our law by translating the main texts and the main decisions of French law.
We will add to this the recommendation that all the law schools and the libraries of foreign courts and tribunals applying or dispensing education in civil law in French and in particular in emerging countries receive free of charge at the expense of the French State. As are the main French legal reference works, such as the Jurisclasseur, the Dalloz encyclopedia, as well as fundamental journals in French: quarterly law journals, Bulletins de la Cour de Cassation, Clunet, etc.
2) Modify the content and methods of teaching law in France, which must be internationalized and professionalized, which implies giving the legal professions, in particular lawyers, the means to be more powerful and better armed in the face of international competition.
Cet effort incombe aussi bien aux pouvoirs publics qu’aux barreaux de France.