MUIR WATT Horatia

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The 4th cover indicates: "The purpose of this collection of analyses is to make accessible to a French-speaking readership "cases" that are essentially, but not exclusively, contentious, and that do not generally appear either in books or in the traditional teaching programs of private international law. Indeed, either they come from other legal systems and therefore require explanations of a comparative nature, or their stakes go beyond legal technique and are therefore only understandable once enlightened by the contribution of another discipline. What they have in common is that they illustrate the methodological and epistemological mutations induced in the legal field by what is now called the global turn, which crosses all the social and human sciences. But the cases thus chosen are also intended to show that the law of cross-border relations has a determining causal role in these ongoing developments. Their analysis tends to open up a space for resistance, deliberation and transformation within the normative regimes applicable to issues as sensitive as environmental protection, the status of migrants, digital platforms or the governance of the globalized economy.

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In the writings dedicated to international arbitration, neutrality is stamped with the seal of evidence. It is the word of the first pages, of the first chapters, integrated to the developments enumerating the advantages of arbitration and intended to explain the opportunity to resort to it, to justify its success, to promote it as an advertising argument beyond its initial, not to say natural, borders, or to set it up as a default mode of dispute resolution. Contrary to the other supposed advantages of international arbitration, which are particularly challenged by the judicialization of this mode of dispute resolution, neutrality is a given that cannot be discussed. It is a word, a discourse, a representation that escapes any criticism. Indeed, despite the virulence and the validity of the criticisms directly addressed to it, neutrality is constantly invoked as a shield or as a battering ram by the members of the arbitration community who wish to protect arbitration or to promote its expansion. Leaving aside the hypothesis of cynicism - of bad faith - on the part of the latter, the researcher analyzing the discourses of international arbitration is intrigued by the strength of a representation that defeats any attempt at destabilization and that conveys the illusion of an impossible challenge. By questioning the conditions of formation and dissemination of the discourse on the neutrality of international arbitration within a community of professionals, the analysis carried out in this research work makes it possible to explain why counter-discourses, particularly those based on the practice of arbitration and highlighting its partiality, fail both in their dissemination and in their attempt to destabilize the dominant discourse. The answer to why lies in the analytical tool that has been used here: the myth. It is thus through the study of the latter that the analysis or, more precisely, its deconstruction is constructed.

Private international law specifically governs all private international relations, determines the conditions for granting French nationality, and defines the legal status of foreigners. The first part of this book, whose ambition is more modest than the complete definition suggests, deals with questions relating to the relationships that individuals may establish across state borders, the law applicable to them and the international circulation of decisions concerning them.

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How does the law approach the pandemic?

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This chapter sees as a core question for global ‘post-monist jurisprudence’ law’s modes of encounters with alterity and attempts to probe the aesthetic, ethical or political underpinnings of the various modes of reasoning through which, in the Western world, law understands, and reacts to, extraneous norms and values. Indeed, the ‘global turn’ in law is not limited, as it would sometimes seem, to a tightening of its own structural linkages with the economy, but involves constant exposure or interactions with foreign societies, cultures and ideologies. In search of a response in legal form to ubiquitous otherness, including cultural difference, this chapter joins various strands of contemporary interdisciplinary scholarship in exploring the insights to be found in the specific methodologies of private international law. In other words, it focuses on the interdisciplinary ecology of those legal forms that embody a certain relationship to foreign laws and other forms of normativity. Post-monist legal approaches to otherness appear here as a ‘dangerous method’ that leads to a decentring of the self, a moment of void at the point of encounter of difference, a suspension of judgement. While such a method leaves behind the comfortable linearity of legal monism, a look towards private international law’s specific intellectual schemes shows that the ensuing vertigo is to be embraced as a form of enrichment of law’s horizons and modes of reasoning.

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This chapter discusses international arbitration as a crucial part of the legal framework that has progressively enabled the contemporary neo-liberal orientation of global governance. As such, it presents the perspective of critical private international law. If the latter discipline constitutes a significant viewpoint in this respect, it is precisely because it provided the foundational legal tools and discourse by means of which international arbitration attained such astounding success as a cornerstone of cross-border trade and investment regimes. The specific contention here is that in sanctifying freedom of contract to an unprecedented degree, including unrestricted party choice of law and forum, it has deactivated the regulatory constraints to which private actors are subject in a domestic setting and, involuntarily thereby, sealed the ‘loss of control’ by nation-states of various crucial aspects of the global economy. The chapter then explores the grievances generally addressed to arbitration as emblematic of the privatization of global governance, understood alternatively as a confiscation of power in the hands of a happy few individuals or as the subordination of public concerns to private interests.

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The geopolitical stakes of the apparently anodyne regime of the effects of foreign judgments at the international level are more complex and less rational than they may appear from a mere reading of the text of the new Hague instrument, which has come to fruition, against all odds, twenty years after the failure of the vast millennium project. These issues are to be sought in four directions: the new place of the European Union at the negotiating table, exclusive of that of the member states . the awakening of China to the soft power potential of private international law, in support of the economic empire embodied in the revival of the Silk Road . the change in the balance of power brought about by the Brexit and extending to the Commonwealth markets . the newly weakened position of the United States in the post-shame era. However, it cannot be ruled out that the uniform regime for the effects of foreign judgments will be caught up simultaneously in the new competition between the various dispute resolution models.

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The liability action against various entities of the Royal Dutch Shell group by a group of plaintiffs for environmental damage suffered in Nigeria raises first of all a problem of prescription, itself affected by a conflict of laws, which must be resolved before judicial authorization can be given to summon the Nigerian entity outside the jurisdiction. Moreover, while the Brussels I bis Regulation allows the jurisdiction of the English court to be based on the company domiciled on the national territory (art. 4), jurisdiction over the Nigerian subsidiary requires the mobilization of the general law of international jurisdiction and to do so through the specific "portal" of the "real triable issue" which commands jurisdiction over the defendant serving as the connecting anchor to the English forum. Finally, local actions arising out of the same facts, previously brought in a third country, may be related within the meaning of article 34 . but the suspension of the subsequent English action is not necessary in this case. In particular, the fate of actions for damages still pending is too uncertain, so that the risk of irreconcilable judgments is de facto reduced.

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The aim of this chapter is to contribute to transdisciplinary dialogue on a defining paradox within the classic liberal meta-discourse that still seems to determine structures of thought right across the social sciences. Profound transformations linked to the global legal turn have meant that while state-centered liberalism continues to define contemporary paradigms in legal thinking, it does so according to a curiously abridged or truncated version, which in turn affects the shape of the social, political, or economic “reality” that it purports merely to govern. The ensuing distortion is of very specific relevance in what is known as private international law—the part of the law that provides the legal framework for late capitalism, or, in different terms, the informal normative infrastructure of the global economy.

In a world characterized by a multiplicity of legal production sites, more and more non-State actors are setting themselves up as true private legislators. Within this normative production, already frequently noted by the supporters of legal pluralism, there is a singular phenomenon, more rarely observed, which is the elaboration of private norms bearing rights and freedoms. This normative activity of private actors has very specific characteristics. It is intended to be autonomous, binding and protective of fundamental rights. As such, it is likely to come into conflict with the law produced by the States. While the disorderly multiplication of sources of fundamental rights could be considered from the point of view of the hierarchy of norms, we have chosen to consider it as a new challenge for private international law. The aim is to examine the role that this discipline could play in identifying and resolving the conflict between State laws and the norms that carry fundamental rights and are produced by non-State actors. Indeed, this type of conflict does not fall within the classical framework of private international law or the traditional modes of intervention of human rights. The hypothesis proposed here is that a renewal of the conflict of laws could take shape from the new questions it raises. In this perspective, it will be a question of borrowing, while adapting them, principles of adjustment developed in the field of human rights, such as primacy, subsidiarity and proportionality. Very close in their inspiration to the mechanisms at work in private international law, they would make it possible to designate the norm that would best ensure the defence of fundamental human rights, on the basis of its material content and not its formal origin.

Présentation de l'éditeur : "Global Private International Law is a groundbreaking casebook, combining the expertise of over sixty international and interdisciplinary contributors who analyze key legal proceedings in order to provide a comprehensive study of the impact of globalisation on the law. Providing a unique and clearly structured tool, this book presents an authoritative collection of carefully selected global case studies. Some of these are considered global due to their internationally relevant subject matter, whilst others demonstrate the blurring of traditional legal categories in an age of accelerated cross-border movement. The study of the selected cases in their political, cultural, social and economic contexts sheds light on the contemporary transformation of law through its encounter with conflicting forms of normativity and the multiplication of potential fora.".

The recognition or enforcement of foreign judgments rendered by default is regularly refused by French judges ruling in exequatur proceedings. This observation is also found in other Member States of the European Union, even though numerous regulations govern the circulation of judgments in civil and commercial matters between Member States. This study examines this problem in order to understand what obstacles exist to the circulation of default decisions and orders for payment in Europe. Indeed, when one speaks of the recognition of judgments by default, it would be more accurate to refer to the recognition of decisions taken at the end of a default procedure. It is this procedure, rather than the judgment itself, that is examined by the exequatur judge to determine whether the decision should be upheld. This study is therefore firstly devoted to the default proceedings and the injunctions to pay procedures in force in French, English, Belgian and Luxembourg law. The aim is to analyse and compare these procedures in order to highlight their divergences, whether they are conceptual or simply technical. Once these divergences have been identified, this study turns to private international law in order to understand which elements of the default procedures are likely to impede their circulation. The combination of these two perspectives allows, finally, to envisage a progressive approximation of national default procedures in order to facilitate their possible circulation in the European judicial area.

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Providing a unique and clearly structured tool, this book presents an authoritative collection of carefully selected global case studies. Some of these are considered global due to their internationally relevant subject matter, whilst others demonstrate the blurring of traditional legal categories in an age of accelerated cross-border movement. The study of the selected cases in their political, cultural, social and economic contexts sheds light on the contemporary transformation of law through its encounter with conflicting forms of normativity and the multiplication of potential fora. (Publisher's abstract).

It is striking that the political debate in Western democracies, now polarized around identity, whether collective or individual, tends to borrow legal terms and, with them, new forms of dogma. In this respect, the law is increasingly called upon in a defensive capacity, to produce a discourse legitimizing the exclusion of otherness. To return, today, to the methods of private international law, is thus part of the questioning that all the social and human sciences must carry out on the modes of reception of the difference of cultures, practices or forms of life. Deeply involved in the processes of transformation that are referred to under the now very controversial label of globalization, private international law lends itself in particular to a questioning of the vision of the world that it carries. While the various legal concepts that are specifically related to its disciplinary field migrate to the political arena, in the service of a defensive or offensive cause, protector of threatened values or promoter of enlightenment, insular or of openness, depending on the case, it is crossed in return by the oppositions that clash around the place of foreignness within the national society (Editor's summary).

This thesis deals with the history of international commercial arbitration, a method of dispute resolution by which the parties remove the examination of their dispute from the state courts and entrust the solution to one or more private persons. This history can be divided into three main periods. During the "Age of Aspiration" (from about 1800 to 1920), arbitration was used in many contexts, both domestically (corporate arbitration) and internationally (interstate arbitration), which gave certain characteristic features to the modern practice of international commercial arbitration. During the "age of institutionalization" (from about 1920 to 1950), key institutions such as the International Chamber of Commerce and its Court of Arbitration were created, and coherent and effective institutional arbitration systems were established. Finally, the "age of autonomy" (since the 1950s) was marked by increased specialization and by attempts to self-institute a separate body of law and to justify the theoretical underpinnings of the arbitration system as a whole. This research demonstrates that the history of international commercial arbitration oscillates between phases of "renewal" and phases of "anxiety". During periods of renewal, new instruments, devices and institutions were designed to expand the reach of international commercial arbitration. Such measures were counterbalanced during periods of anxiety or questioning, when attempts were made to limit the scope of arbitration (e.g. in order not to encroach on state sovereignty). This tension or pendulum swing between renewal and anxiety is a characteristic feature of the history of international commercial arbitration and helps to explain the structural forces underlying its evolution.

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The issue that the authors tackle here with great talent and clarity is the law’s notoriously weak responses to the horrifying legacy of globalization in terms of industrial disasters and abuse involving (1) multinational corporations and (2) innumerable individual victims in developing countries (in a large number of well-known instances, involving pharmaceutical testing, extractive industries, textile manufacturing and much more). In this respect, they identify a “missing link” in existing (unsuccessful) attempts to remedy transnational corporate misconduct through the channels provided by either public or private international law. On the one hand, the former, as we know, is still structurally inhibited from extending to private actors the duties it imposes on states. The missing link here is the lack of extraterritoriality of human rights law. On the other, the latter, according to the authors, offers very little beyond the indeterminate and otherwise unsatisfactory exception of public policy. As they see it, this leaves a gaping hole in the form of an unasked question: what are the moral (and legal) grounds on which the putative victims may assert claims for reparation against putative corporate defendants transnationally ? [First paragraph].

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This new addition to the series "Short studies in private international law" deals with the most significant modifications to the jurisdictional scheme within the common European judicial area, as they result from the recast Brussels I Bis Regulation (1215/2012) on jurisdiction and judgments (applicable as from January 2015). It contains six contributions from specialists in the procedural dimensions of private international law, covering the amended rules on lis pendens or parallel procedures, the revised regimes for choice of forum agreements, the changes in respect of the procedural position of weaker parties, the situation resulting from the abolition of exequatur, new developments in respect of provisional measures, and the relationship between the regulation and other international instruments. [First paragraph].

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This contribution attempts to approach informal transnational authority through the lens of critical private international law. It subscribes to the underlying idea within this volume, according to which the workings of the highly complex dynamic between the public and the private are cardinal to understanding contemporary global shifts in transnational authority, placing the rise of informal transnational authority at its epicenter. Expressions of private authority in the global arena take place outside formal legal discourse. Capital expanding beyond state boundaries has organized its own forms of authority, which arbitrate, enforce and legitimize new processes and structures beyond the state. To understand the ways in which this has taken place, the methodological dimensions of private international law, which have been central to these processes, require closer scrutiny.

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Special Issue: Comparative Legal Reasoning: Essays in Honour of Geoffrey Samuel.

This edited volume provides critical reflections on the interplay between politics and law in an increasingly transnationalized global political economy. It focuses specifically on the emergence and operation of new forms of governance that are developing through a variety of transnational contractual practices, institutions, and laws in multiple sectors and areas of economic activity. Interdisciplinary in nature, the volume includes contributions from law, political science, sociology, and international politics, with the focus on the political foundations of transnational contract being both original and path-breaking. Placing power at the center of the analysis, the volume reveals the heterogeneous landscape of contemporary law-making and the different kinds of politics giving rise to this form of global ordering. As the contributors note, this new form of governance requires a different type of political theory and legal theory, with the volume advancing understanding of the analytical, theoretical and normative dimensions of private transnational governance by contract, making a valuable contribution to new theory in law and politics. It will be of great interest to students and academics in law, political science, international relations, international political economy and sociology, as well as international commercial arbitration lawyers, trade and investment lawyers, and legal firms. [Abstract editor].

Private international law specifically governs all private international relations, determines the conditions for granting French nationality, and defines the legal status of foreigners. The first part of this book, whose ambition is more modest than the complete definition suggests, deals with questions relating to the relationships that individuals may establish across state borders, the law applicable to them and the international circulation of decisions concerning them. (editor's summary).

The law of March 27, 2017 intends to contribute to the transformation of corporate social responsibility into legal obligations. Yet, in order to do so, it was necessary to remove a number of structural obstacles - blind spots - that are currently generally opposed to the law's grasp of the harmful consequences of the offshored activities of multinationals. What is the international scope of application of the law of 27 March 2017 Note 1 (or by way of shorthand, the scope in space of the duty of vigilance that it institutes)? The question, which falls within the legal technique of private international law Note 2, in turn raises the question of its meaning, or what it sought to accomplish, these questions being posed in terms that will depend on the interpretative theory that will be used to guide judges in its implementation. Apparently modest, the law refers to the ordinary law of civil liability, which will therefore provide for the sanctioning of the duty to ensure that economic activity does not lead to the violation of human rights, the health or safety of persons or environmental standards. This duty is nonetheless very singular. The legislator intends to contribute to the transformation of purely voluntary commitments by companies, particularly in terms of respect for human rights or environmental standards, into legal obligations. In order to do this, however, it was necessary to remove a certain number of structural obstacles - blind spots - that are generally opposed, at present, to the law's understanding of the harmful consequences of the relocated activities of multinationals. [First paragraph].

In December 2016, the Legal High Committee for the Paris Financial Markets created a working group to examine the consequences of Brexit on judicial cooperation in civil and commercial matters. At its plenary meeting on 30 January 2017, the High Committee approved the report on this subject, which was drafted by Ms Horatia Muir Watt and Messrs Loïc Azoulai and Régis Bismuth, all three of whom are professors at Sciences-Po.

An outlyer’s view of this very interesting reform raises several issues from an international and comparative perspective. One may be the link established here between form and substance, of particular relevance in contract law. another could be the reach and scope of the new provisions as intended by the drafters, given their aim to capture new forms of contracting. and a third questions the method used to integrate foreign and European developments, with a view to widen the horizons of the reform.

In the context of the increasingly polarized political debate in the Western world, it is striking that many claims are made in the name of the law about the possible or necessary level of social acceptance of foreign-ness1. Law—usually in its constitutional variety—is invoked to justify various forms of closure, protectionism and differentiation between the home-grown and the foreign, in the name of community values, tradition, culture, or sovereignty. The rise of identity politics, linked to fear that rising levels of immigration threaten national cultural integrity, means that, most frequently, such claims tend to be framed in the terms of intolerance or exclusion rather than in those of tolerance, or indeed hospitality. In this respect, one salient feature about these contemporary political controversies—which are echoed most topically today in debates over Brexit, immigration control, President Trump’s ‘travel ban’ or the status of migrants—is the extent to which they focus on the supposed requirements of the law in relation to the defence of identity and the acceptance of otherness. While such debates tend to focus on the foreigner (alien, immigrant), they also concern institutions, practices, life-styles (or Lebensform), convictions, worldviews, and foreign law. [First paragraph].

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Private international law specifically governs all private international relations, determines the conditions for granting French nationality and defines the legal status of foreigners. The second part of this book deals with questions relating to the relationships that individuals can establish across state borders, the law applicable to them and the international circulation of decisions concerning them. (Editor's summary).

Presentation by the editor : "Private international law specifically governs all private international relations, determines the conditions for granting French nationality and defines the legal status of foreigners. In the second part of this book, it deals with questions relating to the relationships that individuals can establish across state borders, the law applicable to them and the international circulation of decisions concerning them.

This article arises from Professor Muir Watt's keynote address to the CJICL annual conference on 8th April 2016. In her article, she considers whether private international law can offer specific insights into important issues that challenge contemporary legal theory. Specifically, she analyses whether legal pluralism can encompass private international law to craft a jurisprudence beyond borders. She argues that conflict of laws theory can contribute principles, infuse hybrid normative interactions and ensure accountability in the relationship between global law and global justice. [Editor's abstract].

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Is it possible or even desirable to prevent a litigant from choosing a legal framework that is as favorable as possible to his interests? The law frames and limits individual will in areas where collective interests must take precedence. The internationality of a relationship, however, puts these limits into perspective and opens up a multitude of possibilities for litigants to develop a tailor-made legal framework. Private international law responds to the difficulties specific to the internationality of the relationship, but the complexity of certain situations defies the limits of the mechanisms made available by this discipline. Indeed, the control of individual choice is made more difficult by the exploitation, by private actors, not only of the variable content of the rules applicable to a certain relationship, but of the bodies of rules ancillary to the main relationship, in a legally heterogeneous world. The strategic exercise of will consists in the manipulation of the legal framework by a litigant in order to prevent the application of a law that is less favourable to his interests than the one he is able to substitute. By subjecting his situation to a legal framework of his choice, the litigant removes it from the field of vision of the original legal order, which will only review the situation when deciding on its effects. There is also a risk that the new solution developed by the litigant may not have been anticipated and regulated by the receiving legal system, or by any legal system called upon to issue a decision in relation to the situation. The interests at stake are thus not fully considered and balanced. Like a space that escapes the vision of an observer, certain aspects of the situation will therefore be in a blind spot, a phenomenon that this thesis will aim to describe and then consider treating.

This paper attempts to bring the specific insights of conflict of laws to issues challenging contemporary legal theory in its efforts to integrate the changes wrought by globalisation in the normative landscape beyond the nation-state. Indeed, conflicting norms and social systems are now at the centre-stage of jurisprudence. Conversely however, private international legal thinking can benefit from attention to the other legal disciplines that have preceded it in ‘going global’. It needs to undergo a conceptual overhauling in order to capture law’s novel foundations and features and adjust its epistemological and methodological tools to its transformed environment. It must reconsider the debate about legitimacy of political authority and the values that constitute its normative horizon. From this perspective, societal constitutionalism, as mooted by Teubner, provides a particularly promising avenue for unbounding the conflict of laws, which might then emerge as a form of de-centred, reflexive coordination of global legal interactions. [Abstract editor].

Despite the frequency of financial crises, states do not have an insolvency mechanism. Noting this lack of institutional regulation, our research has a dual objective: to identify existing tools for dealing with state insolvency and to assess their effectiveness. State insolvency presents several specificities. The first stems from the absence of regulation in this area: in the absence of an applicable insolvency mechanism, it is the judge who is likely to be seized. The second relates to the person of the debtor. The sovereign quality of the debtor party influences the way in which the insolvency is implemented. In such a situation, the State is tempted to intervene unilaterally on its debt, either to cancel the loan contracts, or to suspend or modify them. Finally, the third specificity lies in the person of the creditors. They do not form a uniform whole. They come from different legal orders and pursue different objectives. To respond to each of these difficulties, private international law is a privileged tool, at least with respect to private creditors. However, the result of the difficulties raised by the insolvency of the State is contrasted. When it comes to the question of access to the courts, private international law proves disappointing. It is not able to satisfy a unitary treatment of insolvency. On the other hand, the substantive mechanisms of private international law bring significant progress. If they are adapted, they are likely to ensure a certain regulation of state insolvency.

The increasing transnationalisation of regulation – and social life more generally – challenges the basic concepts of legal and political theory today. One of the key concepts being so challenged is authority. This discerning book offers a plenitude of resources and suggestions for meeting that challenge. Chapters by leading scholars from a wide variety of disciplines confront the limits of traditional state-based conceptions of authority, and propose new frameworks and metaphors. They also reflect on the methodological challenges of the transnational context, including the need for collaboration between empirical and conceptual analysis, and the value of historicising authority. Examining the challenge offered by transnational authority in a range of specific contexts, including security, accounting, banking and finance, and trade, Authority in Transnational Legal Theory analyses the relations between authority, legitimacy and power. Furthermore, this book also considers the implications of thinking about authority for other key concepts in transnational legal theory, such as jurisdiction and sovereignty. Comprehensive and engaging, this book will appeal to both legal academics and students of law. It will also prove invaluable to political scientists and political theorists interested in the concept of authority as well as social scientists working in the field of regulation.

This dissertation presents three studies that take a fresh look at the definition and role of international law in addressing transnational health threats and social inequities. The first chapter assesses the capacity of traditional international law to promote global health, with a particular focus on when and why international health treaties may be useful. A synthesis of 90 quantitative impact assessments of past treaties was conducted and an analytical framework was developed. The second chapter builds on this work to assess a wide range of possibilities for working toward collective global action on antimicrobial resistance, including those that involve building institutions, designing incentives, and mobilizing interests. This chapter argues that their real-world impact depends on strong accountability relationships. The third chapter takes this thesis beyond traditional Westphalian notions of collective action by addressing the question of whether new disruptive technologies can theoretically produce the same regulatory effects on global health issues as international laws negotiated by states. First, this chapter presents a relatively simple machine learning model that automatically quantifies the relevance, scientific quality, and sensationalism of articles and validates this model using a corpus of 163,433 news articles mentioning the recent SARS and H1N1 pandemics.

The risk of capture is little studied outside the context of economic regulation in which it has been theorized. Although American doctrine has shown that this risk is inherent in any normative process, legal studies on the question remain rare, even if the risk of capture is sometimes mentioned in the course of a sentence or a footnote. The present study aims at better identifying the risks of capture that may affect the making of international trade law within UNCITRAL and UNIDROIT . The study aims not only to identify these risks of capture, but above all to propose a legal framework capable of controlling the twofold dynamic that can be observed within UNCITRAL and UNIDROIT, between, on the one hand, the participation of international trade operators in their standard-setting activities - an essential aspect conditioning the quality and commercial acceptability of their legal norms - and, on the other hand, the prevention of the risks of capture, a phenomenon that is detrimental because of the detour of the standard-setting process that it entails to the benefit of certain economic operators.

Present since Roman law, legal fictions are frequently analyzed as devices that make it possible to consider as proven a fact whose falsity is known in order to derive normative consequences. Beyond this occasional use, fiction seems to permeate the entire functioning of the law (First lines).

The relationship between legal orders is a challenge for jurists of all disciplines. The normative interactions that these relationships give rise to, the movement of law that they trigger, question the very foundations of our legal cultures by profoundly modifying the structure of legal orders and their founding notions. The idea of Baptiste Bonnet, the book's scientific director, was to bring together numerous authors and members of jurisdictions on a subject that transcends legal disciplines, to decompartmentalize, to agree to rethink concepts, to seek new tools, and to allow the legal profession to take a look at itself, at its evolutions, and ultimately at the law. The Traité des rapports entre ordres juridiques is characterized by the diversity of its authors, 126 in all, which makes it, in addition to the desire to provide a comprehensive treatment of the subject matter, a unique work of its kind. The arborescence of the questions raised by the relations between legal orders deserved a work which proposes a complete panorama of the observed upheavals, seeks to open all the doors without a priori and by leaving the place to the freedom of analysis of the most authorized doctrine in all its diversity. This treatise aims to offer jurists a valuable working tool and at the same time a work which, by its rather unusual format, seeks to celebrate thought. [Publisher's summary].

Feminism(s) and International Law. Études du réseau Olympe is the first book to emerge from the Olympe network's research program of francophone feminist and gender studies in international law. Created in 2014, the primary goals of this program are to make known feminist approaches to international law, historically developed in English, and to contribute to them in French through various research projects, in addition to providing an institutional platform for networking of interested researchers. Collective collection, Feminism(s) and International Law. Études du réseau Olympe brings together the contributions of 19 researchers in the field and offers a salutary first overview of the state of feminist research on international law in French.

This chapter focuses on the social and economic consequences of private international law, both for the distribution of power in a transnational setting and for issues of identity and community in a world in which new polities are emerging. Furthermore, it highlights the potential insights provided by each of three explanatory models, which in some novel combination may help pave the way towards a renewed theoretical approach to private international law. The three models to be considered are based on conflict, cooperation, and competition. Each uses a distinct vocabulary: protection of sovereignty or state interests, conflicts of systems or, more recently, norm-collision. international harmony, comity, enlightened self-interest, or the mutual convenience of nations. and regulatory arbitrage and competition, a free market for legal products and judicial services, and the interests of the business community.

Introduction: Arguably the most significant principle of contemporary private international law, "party autonomy", or contractual freedom of choice of the governing law also fulfils a key function within the political economy of private ordering in today's global context. In this respect, while the principle emerged as part and parcel of the "mythodology of modern law", it has also worked, less visibly, to destabilize modernity's assumptions about the relationship between law and sovereignty, which are now at the heart of the theoretical turmoil within the traditional legal paradigm. [First lines].

Présentation de l'éditeur : "The conspicuous absence of private international law from the current global governance debate may be traced in part to its traditional ‘public law taboo’, fed by liberal understandings of statehood and its characteristic public/private divide, in the context of the modern schism between the public and private branches of international law. Alongside an original introduction, the materials assembled in this important collection are of immediate interest to both public and private international lawyers, and more broadly to all those interested in new forms of global governance and the theory of law beyond the state.".

The title of this contribution alone will no doubt be enough to divert those who think that globalization is semantically an anglicism, conceptually a fashionable effect, or at worst an economic ideology without legal consequences. From the perspective of private international law, the phenomena it covers (assuming they are demonstrated) would not deprive the latter of its traditional forms, structure and object, which would endure despite the intensity and velocity of the exchanges that now link the different corners of the globe, the financialization of the economy and the interconnection of the markets that it brings, the new centrality of risk, or the digitalization of the human being. [First lines].

Through the prism of the summa divisio between public and private law, or more subtly the dynamics of this distinction in the field of conflict of laws, Clotilde Camus questions, in fact, the evolution and the future of the latter. If this questioning does indeed presuppose a perception of the relativity of these categories, both historically and in comparative law, it is not a question of calling them into question but of recalling the need to keep in mind both the raison d'être of this dualism and the relationship it has, in time and space, with the conception of law as a whole and the way in which it is deployed internationally. [First lines].

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What would be the governance implications if the introduction of the concept of network were to be made a technical-legal category of private international law? The idea behind the present contribution is an attempt to provide an alternative analysis, with technical purchase, which might in turn open the path towards a new pattern of jurisprudence in line with a global legal paradigm in three concrete instances which point to obvious inadequacies in the legal treatment of transnational private power (risk allocation between a parent company and its foreign subsidiary in respect of the conduct of the latter. transnational supply or value chains. and international commercial and investment arbitration). However technical the proposed change might appear, whether or not legal innovation is worthwhile on this point is ultimately a political assessment of the need for balance, responsibility and accountability in global governance.

The conspicuous absence of private international law from the current global governance debate may be traced in part to its traditional ‘public law taboo’, fed by liberal understandings of statehood and its characteristic public/private divide, in the context of the modern schism between the public and private branches of international law. Alongside an original introduction, the materials assembled in this important collection are of immediate interest to both public and private international lawyers, and more broadly to all those interested in new forms of global governance and the theory of law beyond the state. [Publisher's abstract].

Introduction: This chapter proceeds from the conviction that the language of human rights - understood here as encompassing collective social and economic needs - is the most disruptive common vocabulary that can be mobilized today, with normative leverage, in order to address at least some of the negative distributional consequences of the current international investment regime. Among these, the most prominent is the imbalance between the advantages accruing to the investor and the lack of correlative obligations or duties on its part toward the host State, whose hands are tied contractually, moreover, on many issues of public regulation. At the same time, the conduct of corporate investors abroad, encouraged and facilitated by the same investment treaties, has not hitherto been subject to any significant degree of regulation in their "home State". [First lines].

A graduate of HEC, Harvard Law School, and The Hague Academy of International Law before becoming an agrégé des Facultés de droit, Professor Bernard Audit taught civil law for several decades and has explored, throughout his career, private international law, international arbitration law, and international trade law. Following the path traced by Dean Loussouarn, his thesis advisor, and convinced by his own academic and practical experience, Bernard Audit has illustrated this universalist and realistic French tradition which seeks in history and comparative law the way to lasting balances between the interests of States and those of individuals evolving across borders. Thanks to his pioneering work on fraud and the functional character of the conflict rule, the French public has been able to better understand the American "revolution" and the fundamental methodological orientations of contemporary private international law. In his other writings, Bernard Audit has put his personal qualities of precision, clarity and pragmatism at the service of an analysis of the interactions and frictions between legal systems that is still relevant today. His numerous publications are now a reference in France and abroad. As a tribute to the author's work, his colleagues, students and friends have composed this collection of articles entitled Les relations privées internationales. It deals, from a Franco-European or foreign and comparative perspective, with the major issues of international family law, contract law, property law, arbitration law and international civil procedure. The reader will find renewed reflections on the classic questions of fraud, police laws, nationality, autonomy of will, etc. He will be able to discover the very current and innovative reflections inspired by the new forms of conjugal life, the recourse to collective actions in economic matters or the combination of territoriality and extraterritoriality caused by the regulation of the Internet. [Editor's summary of the book].

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Should -and if so, how should -the international surrogacy market be regulated ? Is access to cross-border surrogacy a right attaching to the free movement of persons, or a risk for women in developing countries? Is this an issue of personal ethics or of global economics ? Arguments pit personal autonomy against public policy. democracy against sovereignty. the right to a child against the protection of women. anthropology against discrimination. The heated moral, religious and political debates which in recent years have followed spectacular revolutions in reproductive technology are naturally reflected in widely divergent national standpoints, of which international surrogacy agreements - that is, between intended parents issuing (usually) from a surrogacy-hostile jurisdiction and a surrogate in a surrogacy-friendly environment -have become the focal point. [First paragraph].

Private international law specifically governs all private international relations, determines the conditions for granting French nationality, and defines the legal status of foreigners. The first part of this book, whose ambition is more modest than the complete definition suggests, deals with questions relating to the relationships that individuals may establish across state borders, the law applicable to them and the international circulation of decisions concerning them. (Editor's summary).

Provides a critical approach to private international law in the context of global governance Explores the potential of private international law to reassert a significant governance function in respect of new forms of authority beyond the state Contributes to ongoing debates about the changing nature of law in a global era Contemporary debates about the changing nature of law engage theories of legal pluralism, political economy, social systems, international relations (or regime theory), global constitutionalism, and public international law. Such debates reveal a variety of emerging responses to distributional issues which arise beyond the Western welfare state and new conceptions of private transnational authority. However, private international law tends to stand aloof, claiming process-based neutrality or the apolitical nature of private law technique and refusing to recognize frontiers beyond than those of the nation-state. As a result, the discipline is paradoxically ill-equipped to deal with the most significant cross-border legal difficulties - from immigration to private financial regulation - which might have been expected to fall within its remit. Contributing little to the governance of transnational non-state power, it is largely complicit in its unhampered expansion. This is all the more a paradox given that the new thinking from other fields which seek to fill the void - theories of legal pluralism, peer networks, transnational substantive rules, privatized dispute resolution, and regime collision - have long been part of the daily fare of the conflict of laws. The crucial issue now is whether private international law can, or indeed should, survive as a discipline. This volume lays the foundations for a critical approach to private international law in the global era. While the governance of global issues such as health, climate, and finance clearly implicates the law, and particularly international law, its private law dimension is generally invisible. This book develops the idea that the liberal divide between public and private international law has enabled the unregulated expansion of transnational private power in these various fields. It explores the potential of private international law to reassert a significant governance function in respect of new forms of authority beyond the state. To do so, it must shed a number of assumptions entrenched in the culture of the nation-state, but this will permit the discipline to expand its potential to confront major issues in global governance. Readership: Scholars and students of regulation, international law, international relations, and global governance. policy makers within national and international regulatory bodies.

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This study examines the articulation between private international law ("PIL") and the discipline of human rights in the transnational context in light of the notions of recognition and denial of recognition, both of which are derived from political philosophy. The central problematic studied here is the following: in what way do political struggles for the recognition of marginalized identities modify the reasoning and techniques of transnational conflict resolution employed by national judges? In political philosophy, recognition implies respect for the otherness and difference of the Other. In contrast to recognition, the denial of recognition refers to cultural and economic processes that generate and reinforce daily humiliation and contempt for those whose identities differ from the social norm. The general argument defended in this work is that decision-making processes in transnational space, i.e. legal modes of reasoning, reproduce the stigmatization of individual and collective identities. PIL and human rights thus legitimize and participate in political processes of exclusion of communities that have been and continue to be culturally marginalized throughout history. The law thus legitimizes the denial of recognition that already constitutes the political space.

The impact of the principle of proportionality throughout the world is one of the most significant legal developments of recent years and explains the considerable interest that this question has aroused in the French and international literature. In contrast to analyses that tend to trivialize its impact (notably by reducing it to the rank of a mere exception to the normal functioning of the legal system), this thesis seeks to show that the principle of proportionality signifies a profound upheaval of the law. The analysis is approached in the particular context of the European Union, which proves to be paradigmatic in many respects, from an examination of the reasoning of the Court of Justice in its decisions in application of the freedoms of movement. The interest of this examination is twofold. On the one hand, it makes it possible to take note of the extent of the transformative potential of the principle of proportionality on the formal level (imposing a form of factualized reasoning, which consists of a cost-benefit evaluation), on the material level (setting up the efficiency of state measures as the ultimate goal of the freedoms of movement) and on the institutional level (redefining the distribution of competences between the Union and the Member States). On the other hand, as the principle of proportionality is a mirror particularly apt to reflect the legal culture of the Union, this examination also allows us to identify the characteristic features of this culture, to show in particular the prevalence of a discourse of a technocratic nature (Editor's summary).

A presentation of the concrete applications of private international law, including jurisdictional or administrative competence, applicable law, and the circulation of decisions or the recognition of public acts and acquired situations, in an intra-Community as well as in a broader international context and divided into three parts: the personal sphere, the family sphere and the economic sphere.

Article published in the special issue devoted to "Private International Law and Fundamental Rights".

The contemporary irruption of fundamental rights in the field of private international law responds to a need for governance that the traditional model has become unable to meet. It is to be expected that the political-methodological irritation that they induce within the latter will stabilize until the new equilibrium is upset in turn in the name of a complex and evolving alliance of radical and regressive forces. The purpose of the present contribution is not to re-articulate the ideological debate but rather to explore the ways in which private international law, challenged and put in crisis by fundamental rights, could take advantage of it to reposition itself on the map of global governance, from which it remains so remarkably absent.

The principle of proportionality, although seemingly trivial, actually represents a profound change in the law. The importance of this development, as well as the repercussion of this principle throughout the world, explains the considerable interest that this question has aroused in the recent literature. However, it is not common to analyze this principle in a particular context, as a manifestation of a specific culture. This thesis undertakes such an analysis in the context of the European Union, which is in many ways paradigmatic, by examining the reasoning of the Court of Justice in its decisions applying the freedoms of movement. On the one hand, this examination makes it possible to take note of the extent of the transformative potential of the principle of proportionality at the formal, material and institutional levels. Indeed, since this principle was conceived by the Court as an evaluation of the efficiency of state measures, the implications are heavy with regard to the form of reasoning employed by the Court, the function of the freedoms of movement and finally the distribution of competences between the Union and the member states. On the other hand, the principle of proportionality also proves to be a mirror particularly apt to reflect the particularities of the legal culture of the Union, within which a discourse of a technocratic nature is prevalent.

The notion of cybercrime is analyzed, within the framework of the thesis, from the angle of civil liability. The scope of the study is thus limited to three types of torts: infringements of personality rights, infringements of intellectual property rights and unfair competition. These torts committed via the Internet pose numerous difficulties for the rules of private international law, justifying the proposal of a new way of apprehending them, both in terms of jurisdictional competence and applicable law. The proposals are of two kinds. The first, based on the difficulties of locating the crime, suggests a new method of location adapted to cybercrimes. Indeed, the methods of positive law, the method of objective localization of the crime as well as the method of focusing, are inadequate. It is thus proposed a fictitious method of localization of cybercrimes. The second, based on the delicate position of the victims of cybercrimes who initiate an action in order to obtain reparation or the cessation of the illicit activity, suggests a protection of the latter. The relevance of protecting victims is based on the identification of a structural asymmetry with respect to both the technical providers of the Internet and the perpetrators of the illicit acts themselves. Protective rules for victims of cybercrime are therefore necessary in order to restore a fair balance between the parties.

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How can one critically reflect on the politics of private international law? The question will undoubtedly be perceived as iconoclastic, since the subject matter is itself supposed to be neutral, or at least devoid of any political agenda other than the promotion of a curiously ethereal form of justice - often described as "conflictual" to emphasize its distance from the content of the national laws in conflict. However, on closer examination, the apolitical dimension of private international law is intimately linked to the idea that the distribution of competences that it operates is done in conformity with the values inseparable from a liberal vision, itself eminently political, of private law.

The second half of the 20th century and the beginning of the 21st century have been marked by the spectacular development of genetics, fascinating by the effect of understanding that it seems to induce, terrifying by its propensity to classify, normalize and even exclude. In 1994, France was one of the first countries to establish a specific framework for genetic testing, i.e. the discovery of genetic information. At this stage, it puts in place the means for effective autonomy of the person, which should be extended to the field of self-tests proposed on the Internet, which, through a phenomenon of contractualization of genetic tests, undermine the autonomy of the patient. Outside this individual and medical framework, the legislator, entangled in a liberal and individualistic apprehension of rights, reveals a great difficulty in thinking about the collective dimensions of genetic information, in apprehending the latter with regard to its greater or lesser specificity depending on the circumstances, and in adapting the methods of access and the rules of circulation. However, in a society where the emphasis placed on the freedom and autonomy of individuals invites a reinforcement of individual responsibility, genetic information contributes to an increased individualization of situations to the detriment, if necessary, of the idea of solidarity. On the contrary, the latter must be placed at the heart of a necessary reflection on the public health policy of genetic testing.

European integration has resulted in a paradigm shift for private international law in Europe. The altered context of European federalism, comparable in its impact on private international law with the federal context of the United States, leads first to a constitutional framework for the content of the rules of private international law that the member states or the European legislature adopt, and thus for the normative competences of the member states. This framework results from the interpretation by the Court of Justice and the Supreme Court of several provisions of the European Union treaties and the United States Constitution respectively. The interpretation adopted, which in the United States in particular has fluctuated greatly throughout its history, determines the form of federalism of the two unions. The second result of the altered context is a transformation of the function of private international law rules. The attribution of competence in private international law to the Union, an aspect neglected by the European legislator, has reinvested this area of law with its function of distributing competence among states and has, moreover, invested it with a systemic function: the configuration of the legislative system of European private international law determines the form of legislative competition among states and their ability to produce legislative externalities. Influencing the very nature of the law of the states and the implementation within them of the principle of the rule of law and democracy, the European legislator thus also defines the form of European federalism within the constitutional margins set by the Court of Justice.

The "new risks", which are catastrophic risks to health or the environment, of anthropic origin or, put another way, major technological risks, have their roots in the first industrial revolutions. However, they differ in several respects from traditional collective accident risks: firstly, because of their magnitude - the threat no longer simply affects groups of individuals, but entire populations or ecosystems - and secondly, because of the seriousness of their individual consequences on health and the environment. These are therefore large-scale threats that now jeopardize the survival of large communities or ecosystems, or even of humanity or the planet as a whole. "Preventing the new risks" requires thinking about the legal framework of the facts that generate them, i.e. the choices made by public or private decision-makers. It is to the conceptualization of a global and transversal system of supervision of the decision-makers, in view of the prevention of the new risks, that the present work is, consequently, dedicated. The result of a pragmatic approach, it is interwoven with proposals to fill the gaps in an understanding of new risks that is currently too often casuistic. This system has been built around two major axes: -on the one hand, the better framing of the public decision in the service of prevention, - on the other hand, the use of liability law and procedural law in the service of dissuasion and the anticipation of behaviors generating new risks.

This thesis aims to show that the economic analysis of law is a philosophy of suspicion, a logical system of interpretation of legal phenomena that can provide us with knowledge if we take into account its quality as a system of interpretation. Since economic propositions are largely analytical, they can inform us only by the questions they raise. Economic reasoning is first of all a code of perception based on two concepts: rationality and efficiency. This code of perception gives us intuitions that "seem" relevant to the study of law (both what law is and how to approach legal reasoning). The question then arises as to what makes the proposed knowledge "valid". A priori or empirical considerations seem insufficient to account for the relevance of this type of analysis. We finally propose an approach in terms of reversal: it is only by grasping that the code is only a code and by confronting its propositions with other points of view that we can hope to gain "knowledge". The economic analysis of law also raises the question of the legal analysis of law.

Globalization has given rise to supra-national orders and the application of Western law to many countries in the Melanesian region. The study of this territory, often neglected because it has no impact on the international study of law, now raises the question of the inadequacy of customary mechanisms in the face of so-called modern law. Vanuatu is no exception to this rule, as it has long remained aloof from any legal analysis of issues related to the internormativity experienced by its populations, the elaboration of the concept of State being until then extrinsic to Melanesia. The problem of the inadequacy of custom in the face of the market economy arises. How can we try to adapt a State model to societies based on a specific network of community relations, foreign to the European experience? Beyond these questions, the challenge will be to determine what the law is in Vanuatu. For the purposes of designing this analytical framework, our anchoring will be based on the fundamental characteristics of the country's legal cultures, where endogenous and exogenous models are combined in a bundle of differentiated legal relationships. The problem of normative cohabitation will be based on a series of tools that interweave actors and identification of the society that produces law, in order to theorize a specific legal model in Vanuatu. This emergence can only be done to the satisfaction of all the subjects of law through the mutation of a pluralist form, in the search for a balance between State law and individual rights.

The claim by the European Union, since the end of the 20th century, to have competence in matters of private international law, invites questions about the extent of such competence and its articulation with that of the Member States in the matter in question. The treatment of such a question leads, however, to another, more general question, relating to the point of knowing, when States decide to form a Union of States with an integrative vocation, which entity is responsible for organizing the management of the confrontation of the relations of private interests with the plurality of legal orders, both at the inter-State and international levels. This question, which is recurrent in the United States of America, has now spread to the European Union and can be considered from the perspective of federalism. The impact of federalism on private international law, which it puts to the test, obliges us to modify our understanding of conflict of laws. The function of allocating powers that was previously attributed to it resurfaces, without, however, displacing the function of regulating private interests. The logic of the conflict of laws is turned upside down and leads to the identification of a new category of conflicts, no longer horizontal or vertical but diagonal. These new cases of conflict are multi-faceted and raise questions of the distribution of competences or of the articulation of these competences, and call for a settlement either within the hierarchy or by means of special connections.

The federalization of the context in which conflicts of laws arise makes it possible to consider the renewal of conflict theory concerning the sources of the conflict rule and its implementation. The enactment of conflict rules can be entrusted either to federal authorities or to member states. Federalism thus simply transforms the nature of the problem, which becomes political and whose solution will depend on the respective competences of the Federation and the member states in the field of private international law. As regards the determination of the applicable law, federalism allows either the adaptation of the Savignian method, with which it has a certain philosophical proximity, or a radical revolution brought about by the new economic, political and legal conditions that accompany it. Theoretical reflections are accompanied by concrete examples taken from the European and American federal contexts that reveal the differences.

Private law has been interested in the notion of enforcement of civil judgments under different aspects without ever characterizing it with precision. However, in the light of private international law, private judicial law, and civil law, it is possible to characterize its unity and autonomy. Across these different fields, a unitary criterion emerges which allows one to affirm that through the enforcement of a judgment, it is the enforcement of the judicial obligation attached to the judgment which is in fact enforced, and not the enforcement of the pre-existing substantive right, because the judge has a specific creative power. The enforcement of the judgment is a binding process of realization of the right, responds to a specific regime, and depends in particular on an essential condition, the enforceability of the title. The effectiveness of the recourse to enforcement in the internal and international order, is framed by the consecration of an autonomous fundamental right, the right to enforcement.

The definition of the contract used by French law does not allow for a unitary consideration of this notion. Moreover, the legal dimensions of the contract, whether economic or sociological, are essential for the parties but often ignored by the law. The contractual model proposed by the general theory is therefore only relative. However, it is precisely this observation, also made in English and American law, that has given rise to recontextualizing theories of the contract, including the relational theory of I. Macneil. Inspired by the work of this author and that of H. Collins, we propose, first, to remodel the general theory of contract in order to allow the law to apprehend the entire contractual context and thus respect the object sought by the parties. Second, we suggest that the competences and powers of judges be adapted to facilitate the implementation of this re-reading of the contract.

The 21st century is the century of the mutation of medical research. Medicine, which yesterday could only promise to cure, can today "create", "regenerate" Man. Thanks to techniques such as medically assisted procreation or pre-implantation diagnosis, this medicine helps to bring life into being where it is capricious and can even predetermine its contours. In doing so, it influences the social organization, proposing new patterns that were unthinkable yesterday. Faced with this observation, legislators have undertaken to weigh the risks and benefits of the applications of this medicine, to decipher its dangers in order to guarantee the safeguard of human dignity. However, although fundamental, this last value has quickly proved to be particularistic. Thus, some legislations prohibit, others authorize with certain restrictions, others allow very liberally. Now, in a globalized world, more and more informed of this legislative patchwork, individuals have undertaken temporary migrations to obtain elsewhere what they were forbidden. Said in the State of their residence. Moreover, some individuals who have legally resorted to one of these practices in their country of origin have migrated to other States where these practices were unheard of. In the absence of an international instrument, these migrations create two types of difficulties. The first, in terms of legislative efficiency, the second in terms of the coherence of personal status. Private international law can provide solutions to these problems, if it pays attention to the respect of logical links between institutions and if it does not neglect the impact of Community freedoms.

The difficulties encountered in defining the regime applicable to provisional litigation under European Regulation No. 44/2001 are mainly due to the imprecision of the definition and legal nature of the category "provisional and protective measures", taken into account by the Regulation. A change of perspective is proposed, which consists in distinguishing the "provisional decision" from the measures it orders. As a judicial act without the authority of res judicata in the main proceedings and a "decision" within the meaning of Article 32 of the Regulation, the provisional decision constitutes a more homogeneous category, the legal regime of which can be specified. It must always be possible for it to be pronounced by the trial court and - in this case - to have effect throughout the European judicial area. On the other hand, the court with jurisdiction on the basis of article 31 must see its role strictly delimited. All the more so as the very existence of this alternative ground of jurisdiction encourages forum shopping, as well as conflicts of procedure and provisional decisions. Contrary to a commonly held view, interim decisions are all in personam. However, some of them - provisional decisions per partes - produce their effects outside the territory of the forum more easily and more quickly than others - provisional decisions per officium. It is therefore essentially the latter that must be pronounced locally by a supporting judge.

The variety of recognized heads of damage and the broad appreciation of their characteristics leads to a focus on the very notion of damage in order to give coherence to its judicial reparation. As these observations are also true in common law, a comparison with French law allows us to draw some lessons from this evolution. Defined as the injury to an interest, prejudice has traditionally been linked to the sole idea of a loss, a notion of fact left to the appreciation of the judge. The progressive admission of different forms of extrapatrimonial prejudice, however, emphasizes that prejudice also reflects an injury. This moral aspect is unequally present in the different types of prejudice, depending on their degree of attachment to a material reality, thus helping to determine their reparable nature, even if this selection also depends on other factors. Considering the prejudice not only as a loss to be compensated but also as an infringement to be sanctioned adds a legal and more objective dimension to the factual and subjective assessment of the latter, favouring the establishment of mechanisms to regulate its evaluation. From a procedural point of view, this new approach legitimizes the assistance of an institution outside the victim. Finally, this evolution invites us to clarify the meaning of the principles governing civil liability, which are full reparation and the modalities of reparation, as well as the distinction between civil and criminal liability.

The delimitation of the scope of application of Community private law is not governed by rules of conflict of laws, whether national or Community, but is a function of the purpose of the rules of substantive law of Community origin ("effet utile") and the objectives of European integration. This delimitation takes an essentially negative form, in the sense that the relevant question for the interpreter is not when these rules apply, but rather when they do not apply. The method thus results in the national court applying its own law implementing a private law directive as lex fori to any dispute that falls within its substantive scope. The result is that the applicability of each transposition law depends on whether the court of a particular Member State of the Community is seized. This result, unsatisfactory perhaps at first sight from a purely theoretical point of view, is not contrary to the transposed directive, because, in any case, it is applied through a transposition law. Above all, it is not contrary to the provisions of the EC Treaty relating to the freedoms of movement, because the application of private law is not likely to impede these freedoms and, therefore, it does not fall within the scope of application of these provisions. On the contrary, the application of the law of the forum qua lex fori has the advantage of simplicity and gives rise to a desirable forum shopping, because it is confined within the limits dictated by the European law of conflict of jurisdictions. It also goes hand in hand with a new understanding of international corporate law as a conflict of authorities rather than a conflict of laws.

The challenges facing the regulation of takeover bids are multiple. While they are related to the issues specific to this type of transaction, they are also closely linked to the regulation of stock markets. Moreover, these operations are often controversial. Of an economic as well as a social nature, the interests at stake, whether they be those of the directors, the shareholders or the employees, are indeed considerable and often prove to be antagonistic, necessarily implying an arbitration. Lawyers from Common Law countries first, and then from Civil Law countries, have been examining the different issues raised by these transactions. In the United States, where the debate is lively and abundant, they have been approached more particularly through the prism of the economic analysis of law. Among the questions they raise, however, there is one that precedes them all: that of the attribution of the power to decide their outcome. This question is functional in nature and is decisive because the development of these operations, desired by the proponents of the economic analysis of law, is directly dependent on the category of persons likely to decide on the rejection or acceptance of the offer. Naturally, the shareholders of the target company, the addressees of the bid, but also its managers are approached to assume this role. For the proponents of the economic analysis of the law, the decision-making power must imperatively return to the former. The purpose of this study is to determine to which category of persons the French and American regulations intend to confer the right to decide on the outcome of the bid and thus to evaluate in this respect the capacity of these rights to promote the development of takeover bids.

This study seeks to clarify the meaning of the word "laws" in the expression "conflict of laws". This expression is still fraught with deep ambiguities, as is shown by the synonymy recognized in this area with the notions of "order" and "legal system". This is easily understood: a system may appear as an "ordered" whole and order as a "systematic whole". However, the legal order is in reality an "institution" and not a "system" of norms. On the other hand, any body of rules of law concerning individuals can be considered as an autonomous and complete whole, and in this sense constitutes a true "system", but not a "legal order". The conflict of laws thus appears as a conflict of "legal systems" arbitrated by "legal orders". This statement is not without consequences for the method of conflict of laws in general and for the operation of the principle of autonomy in particular.

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Although it is receiving increasing attention, the subject of international jurisdiction has traditionally given rise to less sophisticated intellectual constructions than that of conflict of laws. Unlike the latter, it is not the subject of any general theory worthy of the name. However, in international matters, the choice of forum often has decisive consequences on the outcome of the dispute. Moreover, the differences between the laws on direct jurisdiction are singularly radical. The aim of this study is therefore to answer the question of where to place the limits of the international jurisdiction of courts by identifying, at the end of a comparison between the methods of regulating jurisdiction employed in civil law and common law systems, the basic components of a general theory of direct jurisdiction common to these systems. In this perspective, we will first attempt to answer the question of the intensity of the links that the judge of the forum must maintain with the dispute, using not the hierarchical model of the pyramid of norms, but the regulatory model of the network, which is better adapted to private international law. But the international jurisdiction of the court of the forum is not only dependent on its links with the dispute: it is also sometimes influenced by the jurisdiction that other States attribute to their own courts. The regulation of jurisdictional competence then requires consideration of the competence of the foreign court, in cases and according to procedures that need to be specified.

Comparative study of agreements between competitors in EU and US competition law based on the analysis of the Federal Trade Commission and US Department of Justice guidelines (2000) and the European Commission guidelines (2001). This study has two objectives. First, to define the legal framework for analyzing agreements between competing companies in each legal system, applying it to the case of cooperation agreements in the refined petroleum products distribution sector. Secondly, to understand to what extent the American and Community competition authorities arrive at similar solutions while maintaining their own method of reasoning: if there is indeed a Community rule of reason, it cannot be equated with the American rule of reason.

The concept of causation has two different aspects in liability law. On the one hand, it makes it possible to formulate an explanation for past events. On the other hand, it constitutes an attribution to a responsible person of the burden of answering for these facts. These two functions must guide the interpretation of the notion. The explanatory dimension of causality leads the interpreter to two different modes of definition. The first is to rely on scientific conceptions of the notion of causality. From this point of view, causality is defined as an invariable or highly probable regularity, which leads to the criterion of probability defended by the theory of adequate causality. One can try to go beyond the idea of ex ante probability by relying on the criterion of the sine qua non condition, which implies counterfactual reasoning. The second mode of definition, defended by two English authors, Hart and Honoré, seeks to build the legal interpretation of causality on the usual meanings of the notion in everyday language. Whatever the point of view considered, it is the criterion of causality sine qua non that seems to impose itself. But it is necessary to add considerations of imputation to it. The attributive dimension of causality leads to an analysis that is no longer conceptual but functional. In this respect, causality constitutes a condition that makes it possible both to adopt liability in principle and to determine the extent and burden of reparation. In this context, as a legal concept responsible for imputing liability, the qualification of causality may depart from the strict logic of causal explanation. The dual nature, descriptive and imputative, of causality in liability must guide its qualification. This must be done in the form of an argumentative debate mobilizing elements relating to the factual circumstances and considerations of legal policy. [Author's summary].

The substantial assessment criterion for mergers should make it possible to authorize, prohibit or conditionally authorize transactions. In a comparative approach to the two laws, it is necessary to examine the very substance of the criterion, which requires an overall understanding of the way in which they are analyzed. The elements of control and their hierarchy within the review process must be identified. However, it is not enough to simply state the similarities and differences between the two criteria, not only because there is a significant convergence between the two laws, as evidenced by the adoption of the 2004 reform of Community law, but also because comparative law must provide a framework for analysis that not only goes beyond a simple comparison of the assessment criteria for mergers in the Union and the United States, but above all goes beyond the simple description necessary for the comparison to propose a global methodology for the substantive assessment of concentrations.

Postmodern techniques and values are transforming the issues from which private international law grasps the interest of the family. The subject now faces, on the one hand, the effects of communication techniques which, in a globalized environment, reorganize borders and identities, and on the other hand, the effects of the manipulation of living organisms which challenge family models. Faced with the omnipotence of family actors and the imperative of efficiency, it will be necessary to re-found the rule of conflict and to proceed to its refinement. In order to ensure its relevance and coherence in an environment shaped by postmodern values, we will try to resist the pitfall of specialization or the disorderly will of individuals in order to evolve with the pluralism and the regulation that it implies, while preserving the family's specificity.

The economic analysis of law represents a multidisciplinary approach based on the application of reasoning methods from the economic sciences to legal problems. It is part of the comparative discipline, alongside comparative law, from which it borrows the methodological spirit. The relevance of this approach is revealed in particular in the field of French civil liability, which is currently undergoing a serious crisis. It sheds light on the problem of the foundation of this institution, which can be defined as the incitement of individuals to prevent damage caused to others, by the possible condemnation of the authors of this damage to fully repair the consequences. This conception renews the approach to the functioning of civil liability. It also illuminates certain ancillary mechanisms, the importance of which it emphasizes, such as the insurance mechanism or the resolution of liability litigation.

A protective attachment allows a creditor to preserve the debtor's assets but also to force him to pay. Thus, when the vessel is detained in port, the shipowner loses the use of his production tool. The arrest is a serious act and is governed by international provisions (Brussels Convention of 1952, international convention of 1999, not yet in force) and national provisions (law of January 3rd 1967). The particular nature of the vessel makes it necessary to determine the seizable assets: related vessels (simple ship cie) and vessels to which the claim relates action in rem). The seizure of the vessel must always be judicially authorized. The authorization is not an ordinary decision: it is non-adversarial and provisional and the judge does not rule on the rights of the parties. He bases himself on a principle or an allegation of a claim. The judgment is not intended to circulate internationally.

Born in England, the concept of trust is inseparable from the legal system of equity, contrary to the acclimatizations that have been made. Litigation involving foreign trusts is sometimes brought before the French courts, even though French law does not recognize the concept of trust. However, the concept of trust does not run counter to the notion of patrimony and the idea of a numerus clausus of real rights, which are called into question in contemporary French law. The French concept of the public order of succession is, for its part, effectively protected. Moreover, the French judge has always tried to recognize foreign trusts, by the method of adaptation. But this leads to forced and erroneous analogies, which ratification by France of the Hague Convention of 1 July 1985, which proposes unified conflict of laws rules as well as a harmonized presentation of the characteristics and effects of trusts, would make it possible to mitigate.

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Any conflict of conventions and community acts of private international law embodies two kinds of conflicts: conflicts of norms of private international law in state legal orders, on the other hand or conflicts of inter-state norms in extra-state legal orders. The identification of the first one supposes the consideration of the field of the norms and the examination of their structure and their legality. The characterization of the second one requires the observation of the previous one. It requires, moreover, that the inter-state norms in question are obligatory. The principles of solution resulting from the extra-state legal orders prove to be inapplicable because inadequate. The same cannot be said of those applicable in the state legal orders. These principles must be ranked in a hierarchy. The solution of conflicts of inter-state norms often depends on the solution given to conflicts of norms of private international law.

Public policy is the name of 104 legal concepts (Part 1). In private international law, it is one of the 39 great problems, paradoxes, vicious circles, petitions of principle (qualification, referral, electio juris, etc.) of this subject (part 2). A problem is an incompatibility between the two answers successively given to a question at two different moments of a reasoning. The 39 problè́mes have as their common cause the entanglement of two incompatible theories (and thus the entanglement of the two incompatible reasonings they respectively underlie): that of legal monism and that of legal pluralism. The problems are problems because of this entanglement. They cease to be problems as soon as this entanglement ceases. The arguments of positive law (Perelman) concerning the passage from what is different but tolerated to what is too different to be tolerated show that the public policy exception is a pluralist technique (Santi Romano) that cannot be presented in monist terms (Hans Kelsen).

That sanctions for non-performance are a measure of the effectiveness of the contract, not its enforceability, is the main lesson of a comparative study of French, English and American contract law. The rule of enforceability does not mean that the contract must be performed. It means that its non-performance is legally sanctioned. And since article 1134 paragraph 1 of the Civil Code does not specify the type of sanction incurred, the rule cannot be the basis for the pronouncement of specific performance, still less for its alleged legal primacy. A sanction is not and cannot be more or less in conformity with the binding force, since all sanctions derive equally from it. Damages and rescission of the contract are no more contrary to the rule of binding force than is specific performance. Equal before article 1134 paragraph 1 of the Civil Code, the sanctions for non-performance of a contract are, on the other hand, of varying economic effectiveness, and this consideration may justify an articulation which binding force is incapable of founding. The cost of a sanction, and its ability to channel resources to those who value them most, are factors which determine their respective fields and regimes. The search for efficiency is susceptible to degrees. At the very least, it translates into the rejection of sanctions whose implementation is disproportionately costly in relation to the benefit they provide to the creditor. Pushed further, it leads to the recognition of a duty to minimise harm, which is capable of overturning the whole range of sanctions for non-performance of a contract.

The impact of new technologies on the traditional law of legal acts is manifested at two levels: that of the negotium and that of the instrumentum. Online, it is a matter of directed and reflexive consent. The manifestation of the consent takes place by means of an offer and an acceptance on line. Determining the place and time of the meeting of the wills online is not easy. The new law of March 13, 2000 adapting the law of evidence to new information technologies recognizes that an electronic document has the same evidentiary value as a written document on paper, provided that it presents the same guarantees as the latter. The classical approach to the signature is abandoned to give way to a functional approach. The functions of the latter consist in identifying the person from whom the document emanates and in guaranteeing the integrity of this document.

As the law stands, the conflict of laws model dominates the settlement of conflicts of procedure and decision. The principled solution to these conflicts is the application of the prior tempore, potior jure rule. While this analysis is perfectly well founded with regard to conflicts of procedure and decision that develop in a state or inter-state judicial area, the situation is different with regard to those that occur in the international area. In this second hypothesis, these conflicts belong to the category of conflicts between legal orders whose resolution depends on international judicial competence. The solution implemented in this case lies in determining the most competent forum. The chronological criterion is therefore only of a subsidiary nature.

The choice of this topic stems from an observation: while the "crisis" of conflicts of laws affects the field of obligations across the Atlantic, in countries with a Savignian tradition, the fervent supporters of change are contained in the category of personal status. This category is in fact currently undergoing a profound evolution both in terms of its content and its regime. Individual and family status, the traditional component of the category, is breaking down. The contractualization and the conflict of values which affect the composition of the category generate in private international law an abundance of contradictory logics, which are the cause of the fragmentation of the category. This study proposes to redefine the category of personal status. The aim is to recover the full meaning of the term status, which is both a legal condition of the person (status) and a coherent set of norms (slatutum). The first part of the study deals with the category in its relations with the concept of legal person. A reflection on the formation of the category (Chapter I) and on the very notion of person (Chapter II) attest to the role of an unavailable conception of the person as the foundation of personal status (Title I). Unavailability also proves to be the criterion of the contours of the category (Title II). As a status establishing the person, personal status groups together the institutions to which the individual is invited, in order to constitute his own identity, to adhere but which he cannot create: the human body (Chapter I), the bond of filiation (Chapter II) and, to certain degrees, the family environment (Chapter III). The second part deals with the methodology best suited to protect the contours of personal status thus redefined. To the unity of the status, corresponds a unitary attachment of the category. The notion of integration environment, the stable anchorage of an individual in a given country (Title I) justifies the proposed attachment to habitual residence (Chapter I) and a reorganization of conflicts of jurisdiction (Chapter II). But the unity of personal status thus recovered cannot be preserved without a resurgence of statutism (Title II), which is the only way to counter the imperialism of fundamental rights (Chapter I) by an imperative implementation of personal status itself (Chapter II).

The principle of coherence stigmatizes contradiction and tends to restore coherence to a contradictory act or inconsistent behavior. A large part of the rules of contract interpretation revolves around the restoration of coherence to the commitment. Moreover, the insidious contradiction consisting in << committing oneself without committing oneself>> is stigmatized by article 1174 of the Civil Code. Beyond the Civil Code itself, the notion of essential obligation seems to be no more than a mask for the principle of coherence, prohibiting a party from emptying the promise of its substance by the stipulation of a clause <>. The same is true when the debtor attempts to deprive his promise of any binding character by adding a <>. The principle of coherence then authorizes the judge to deprive the contradictory reservation of the purpose of the document of effect. The principle of coherence also manifests itself in the guise of a duty imposing stability of conduct. It provides the criteria for understanding contradiction and seems to be able to account for the regime of withdrawal from the offer, tacit waiver, unfair termination of contracts with successive performance or the impossibility of suddenly invoking the resolutory clause. In a similar way, the author of a conduct which has induced third parties to draw consequences cannot adopt a reverse party under the sole pretext of his changing interests. Thus, one can discern a tendency in the case law to regard contradictory reversal as ineffective, leaving the effects of the initial manifestation of will intact. The sanction is the same when the debtor or the creditor obstruct the performance of the agreement which they themselves have entered into. The principle of coherence thus makes it possible to moralise behaviour, while preserving legal certainty.

The study undertaken in this thesis concerns the power that should be granted to the judge to assess the appropriateness of exercising his own jurisdiction in an international dispute. The subject is brought back to the theme of the possibility and advisability of transplanting into French private international law the doctrine of the forum non convenions experimented in the common law systems, a first part is devoted to the development of the model in the common law countries. After a historical and comparative overview of the different expressions of discretionary power, it is undertaken to unify and develop a doctrine of forum non convenions. The latter can be reduced to the jurisdictional expression of the principle of proximity. This result makes it possible to envisage the adaptation of a moderating power in French private international judicial law. The action of this power is first examined against the privileges of articles 14 and 15 of the civil code. But cases of procedural injustice can also be found in the Brussels Convention law. The other area where a moderating power could usefully be admitted is that of positive conflicts of jurisdiction. It remains that in both of these fields, European treaty law is opposed to the action of a moderating power. As for French common international law, it could only accept this instrument in a restricted manner. The restrictive status of this power is finally reflected in the establishment of a strict regime surrounding its implementation. Thus, in addition to the cumulative substantive conditions for the acceptance of the exception, an exhaustive list of factors that the judge would be authorized to take into consideration is added. Finally, the Court of Cassation should be authorized to exercise its control over the use of their power by the judges of the merits and a procedural status of the exception is elaborated in order to channel the judge's freedom as well as possible.

The cooperation agreement seems to be affected by a major handicap in our legal system: by its particular nature, this agreement by which the contracting parties undertake to pursue together the realization of a common objective suffers from its inevitable maladjustment. Now, article 1134 of the Civil Code seems to close any door to a revision of the agreements not having been envisaged in the original contract, or accepted subsequently by the whole of the parts, it could seem that except these two last cases of figure, nothing could oblige one of the co-operators to adapt its service to the pursued goal. Such a solution does not, however, satisfy. In the search for what should be the regime of cooperation agreements in the face of maladjustment, a search that requires a position to be taken on the role to be attributed to the economic analysis of the law, one observation is essential: respect for the function of these contracts sometimes requires that their modification be prescribed, with respect for the interests of the parties and, if necessary, for the objectives of social utility assigned to these agreements by competition law. Once the need to give these contracts a certain evolutionary character had been demonstrated, it remained to be seen how it would be received in our positive law today. In spite of appearances, it turns out that the latter already enshrines, in a general way, the adaptability of agreements. In view of this, the search for an appropriate basis for imposing an obligation to adapt cooperation agreements is encouraged from a twofold point of view: first, such an obligation will not completely break with existing law, but will on the contrary be in perfect harmony with it; secondly, specifying the possible bases for the obligation and marking its limits will also mean better control of evolving contracts, the reality of which is finally proving to be inescapable in our legal order.

The right to a fair trial as it results from article 6 § 1 of the European Convention on Human Rights must be applied in all international private disputes. The basis of this intervention is the objective character of the treaties relating to human rights. The responsibility of the state can be engaged as soon as the violation of the right to a fair trial is caused by the courts of a contracting state. The criterion of imputation, which expresses a causal relationship, seems sufficient to characterize the responsibility. It follows that the conditions of liability of the forum state vary according to whether the violation is directly attributable to it, or whether it results from the courts of another state: this variation reflects two types of application, "direct" or "indirect". In the first case, it is sufficient to characterize an antinomy between the rules of jurisdiction or procedure applied by the forum and the procedural guarantees. On the other hand, indirect application is also based on an analysis of the role of the forum. Thus, in matters of recognition of a foreign decision, the forum addressed waives the right to apply the procedural safeguards itself ... this waiver can only be regarded as lawful if the forum addressed monitors the application of these safeguards by the foreign court. The indirect application of the Convention therefore implies that the lawfulness of the forum's conduct must be assessed in the light of the entire situation to which the litigant is subject. Indirect effect is defined by taking into account the intervention of foreign courts. It is not a matter of attenuating the principle but of adapting it to the specific circumstances of the case. Thus, in matters of denial of justice, the forum state will only be liable if the violation of the guarantees by the foreign courts is flagrant and if the jurisdiction of its courts is capable of diminishing the effects. .

The duty to mitigate requires the victim of an injury to take reasonable steps to limit or reduce the damage. It is firmly rooted in the common law systems, where it is known as the duty to mitigate damages. Some laws closer to French law have also recognized it. Affirmed by article 1479 of the new Quebec Civil Code, deduced from § 254 of the German B.G.B., it may be recognized as a duty to mitigate. G. B., it can be found in Belgian jurisprudence. In French positive law, on the other hand, the obligation to minimise damage exists, for the time being, only within the scope of the Vienna Convention of 11 April 1980 on the International Sale of Goods, which devotes Article 77 to it. Outside the scope of the latter, it has never been explicitly stated. On the basis of the classical mechanisms of the law of obligations, it would seem that French law has the means to accommodate it. Fairness and good faith militate in its favor in contractual matters. More generally, a breach of the obligation to minimise damage may appear to be a fault of the victim which, where appropriate, breaks the causal link between the initial harmful event and the final damage. This implicit recognition, which is possible on the basis of the most diverse notions, nevertheless raises a major problem: the determination of a unitary regime. As for its content, it is placed under the aegis of the reasonable. The victim does not have to do everything in his power to minimize the damage. He must only take reasonable measures to achieve this end. As for its sanctions, they are mainly of two kinds. Apart from the absence of compensation for the part of the damage that could have been avoided, the victim is sometimes, in a more radical way, deprived of a means of action.

Estoppel by representation is an English rule created by equity. It protects the legitimate confidence of the person who has acted on the basis of the unequivocal behavior of a person, by preventing him from having later, in court, an attitude incompatible with the one previously adopted. The inadmissibility of the contradictory claim estoppel by representation is clearly distinguished from certain mechanisms that also sanction a misleading appearance; as such, it is an autonomous rule within English law. The French authors mainly question the potential of the theory of appearance or abuse of right to achieve the same result as that of estoppel by representation. However, this device is not, like the theory of appearance, a mode of validation of rights, but a sanction for inconsistent behavior; nor is it a fault generating liability as can be the case with the theory of abuse of rights. Moreover, if the sanction of fraud against the law and the maxim nemo auditur propr1am turpitudinem allegans evoke that of estoppel by representation, these two rules do not enshrine any significant protection of legitimate confidence. In French private law, there is no known rule that can be directly compared to estoppel by representation. However, there are French decisions that are clearly based on the idea of estoppel by representation. Better still, there are cases comparable to some English cases that have used this mechanism. Thus, it can be argued that estoppel by representation has made its appearance in French private law jurisprudence and is waiting to be formally recognized.

French law on protective measures is resistant to internationalization. Indeed, the judge can only authorize a seizure of assets located within his jurisdiction, and he will refuse to recognize any foreign decision that would freeze assets located on French territory. However, the reasons given to support this state of positive law are not convincing. First of all, public international law does not impose any restriction that would prohibit these particular decisions from circulating. Moreover, in private international law, the traditional linkage of protective measures to the law of enforcement does not seem to be well founded. The study of foreign laws is rich in lessons in this respect. In Germany, Italy and especially in the United Kingdom, the judge is authorized to pronounce measures with extra, territorial effect. The English Mareva injunction, in particular, is evolving rapidly, and seems to be adapting to the ever-changing needs of litigants who are victims of fraud on a global scale. For these legal systems, the next challenge in this area will be to recognize foreign protective measures. But admitting extraterritoriality immediately raises many thorny questions that cannot be avoided. It will then be necessary to consider the criteria of competence of the judge seized of such a request, to seek the law that he will have to apply and to wonder about the modalities of the reception of foreign measures which could differ profoundly from those provided for by French law.

This study is devoted to the analysis of the theory of abuse of rights as a means of limiting the right of unilateral termination. It is articulated around two axes. First of all, it demonstrates the pre-eminent and ever-increasing place that the concept of abuse of rights occupies in positive law, and then, through the study of the criteria of the latter, it highlights the evolution of the notion of contract. It emerges that the courts are now seeking to moralize the subjective right by taking into account the behavior adopted by the author of the breach. If this behavior has given rise to any kind of confidence in the partner, and if this confidence has subsequently been violated, the judges, in the exercise of their moderating power, no longer hesitate to sanction the author of the breach by engaging his responsibility, by reference to the notion of abuse of right. It must be concluded that if the notion of abuse of right prevents the legal technique from turning against the ends it claims to serve, it is because it now takes into account the notion of legitimate trust.

Recent developments in the case law reveal an increasingly marked intervention in favor of contractual balance. Nevertheless, in the absence of a general reflection on this notion, they appear to be multiple and fragmented. Consequently, the emerging principle of proportionality appears to be an instrument capable of uniting the various solutions to the imbalance caused by a clause or to the lack of equivalence of benefits. The durability of the contractual relationship requires the restoration of balance. If positive law is not devoid of legal tools, a better understanding of the balance of the contract could come from the principle of proportionality, which is present in the solutions of foreign laws. A precise and strict conception of the measure of contractual terms should allow a controlled extension of the control of excess, while promoting an economic analysis of contract law. By revealing the disproportionality of obligations, it makes it possible to measure the contractual imbalance and in the prolongation to restore the balance of the contract by inviting a revision up to the level of the excess. This duality makes it possible to conclude that the principle is superior to other remedies, even if they are corrected.

The floating charge is a conventional security of English law, encumbering the whole of the debtor's assets until its crystallization on certain goods. The objective of this study is to explain the functioning and the possibilities of recognition that it can have at the judicial level. The first part aims at qualifying it in terms of French law: it is a conditional real right relating to a de facto universality, the company. The second part determines the rule of conflict and implements it. The lex rei sitae will be the law of each of the states where the debtor has property. The French law being designated, it must adapt itself to recognize the foreign institution: this one will be validly transposed into a pledge of goodwill, and the conditions of creation of this right will not apply. Thus, the floating charge can be recognized in France.

The Multilateral Investment Guarantee Agency may be involved in six types of disputes: (1) any dispute concerning the interpretation or application of the provisions of the Seoul Convention; (2) any dispute between the Agency and a Member State (or a country that has ceased to be a Member State); (3) any dispute between the parties to an insurance or reinsurance contract; (4) any dispute concerning claims of the Agency as subrogated investor; (5) any dispute between investors and host countries. 4) any dispute concerning claims of the Agency as a subrogee of an investor. 5) any dispute between investors and host countries. 6) any dispute concerning the immunity of the Agency from jurisdiction in local courts.

The classification of contracts can be renewed on the basis of the notion of object and apart from the cause. This classification is based on a distinction between the special contract, the specialised contract and the despecialised contract. It makes it possible to evaluate the binding force with which each contract is endowed and can constitute the beginning of a general theory of sanctions.