Fair trial under international law private French and "European".

Fair trial under international law private French and "European".


Laurence SINOPOLI
The French court which decides on a private dispute with foreign elements
apply private international law. In the absence of international agreement, it will make application
private international law French, what it covers (paradoxically) "right".
"common". The existence of numerous international conventions and bilateral as
multilateral, leads to fragmentation of the private international law, even if, considered
one by one, these conventions can harmonize the solutions adopted by States
parties.
Analysis of the place of fair trial in the normative fabric available j.
French to settle disputes of private international law be partial. It will focus
primarily, on the one hand, on the common law of conflict of jurisdictions, and on the other hand,
on the rules of conflict of jurisdictions from the community legal order. As soon as the
September 27, 1968, to implement the free movement of judgments within the community,
Member States of the community into the agreement in Brussels regarding the
jurisdiction and enforcement of judgments in civil and commercial matters on the
basis ex Article 220 of the Treaty of Rome. In addition to the fact that this convention was
ratified by the new Member States of EU enlargement, an
Parallel agreement was concluded with A member.E.L.E., the Lugano Convention
September 16, 1988. Recently, the Brussels Convention has been "communitarised":
for the Member States (except Denmark), the Regulation (EC) n ° 44/2001 of
December 22, 2000 was replaced. On the other hand were excluded from its material field law
family and bankruptcy law. Two laws of 29 May 2000 intervened in
these respective fields: Regulation No. 1347/2000 relating to jurisdiction, the
recognition and enforcement of judgments in matrimonial matters and in matters of
parental responsibility for joint children, Regulation No 1346/2000 on
insolvency proceedings. Insofar as these recent texts have not yet received the
sacraments of jurisprudence, it will most often refer to the original text which
the interpretation has been entrusted to the Court of justice of the European communities by the
Protocol of Luxembourg June 3, 1971, which is based on the mechanism of issues
for a preliminary ruling.
It would have been little consistent with reality to analyze separately each of the branches of
This composite normative namespace (national or Community origin rules), because they are the
same - the French courts - courts which, finally, are implementing.
However, this composite character must not be hidden: the decisions of the Court of
Justice of the European communities referred to will also cover "normative space."
"de la Convention de Bruxelles" and since the communitization, normative space
community. For more, the community legal order as the French legal order;
are not without maintaining links with the European Convention of human
human and fundamental freedoms. I would therefore be an intrusion in
"European Court of human rights" normative space just to build a
important decision on the international movement of judgments.
The search for the place of a fair trial in private international law is carried out in accordance
two angles. On the one hand, the fair trial plays when judge directly decide a dispute
between private individuals with a foreign element. On the other hand, the trial
fair is also invoked when a foreign decision is recognized by the College
legal forum. It appears in a particular situation: it is not so
to ensure a fair trial phase recognition to inquire about the
eyes raised the judge recognition on the foreign trial. Strengthens this hypothesis
Yet its hybrid analyzed normative space: private international law, as
international criminal law, allows indeed to see the place assigned to fair trial
at the crossing of normative spaces. These subjects who are interested in the standards movement
a space to highlight the fact that normative space on the one hand, can be
work itself was fair trial on the other hand, control how another space
implemented.
I. Generic Concepts of fair trial
en droit international privé français et européen
Here wanted generic concepts are those that present some specificity
en droit international privé. Are left aside mutual aspects
International such as those belonging to the civil procedure in the strict sense.
A. Identification
Several concepts are hanging to a fair trial as well appear in matters
direct competence of recognition of a foreign judgment. It is only
in this last area as article 6 § 1 of the European Convention on the rights of
mankind has found an echo.
1. Direct jurisdiction
Two concepts should be developed: the denial of justice, basis of a
exception, a hotfix to the set of rules of direct; jurisdiction the proper administration of
justice, often invoked as the basis of rules of direct jurisdiction and as
Guide to their interpretation.
(a) the denial of justice
From 1870339, the French authorities - which it should be noted that it is long
remained the primary source in private international law - accepted that the courts
could assert jurisdiction based on the denial of justice. At the time, and until
1948340, was the principle of the French courts jurisdiction to decide on the
disputes between étrangers341. Could result from a denial of justice in the sense where some
foreigners were unable to see their dispute. To prevent this,
an exception to the principle of jurisdiction for disputes between foreigners was therefore
admitted once demonstrated de jure or de facto unable to seize a judge
abroad. Since the abandonment of the principle of incompetence to foreigners and the extension
339 Cass. Req. 7 March 1870, Koelher, s., 1872, 1, at p. 361.
340 Cass. CIV. 1st, June 21, 1948, Patino, J.C.P. 1948, II, 4422, note P. l. VP. ; S. 1949, note 1, at p. 121, j.-p..
NIBOYET; Rev. crit. int. PR., 1949, at p. 557, fn. Ph. FRANCESCAKIS.
341 V. notably Cass. Req., July 26, 1852, D.P. 1852, 1, p. 249; Cass. Req., January 27, 1857, Hope,
D.P. 1857, 1, p. 142; Cass. Req. 10 March 1858, Rachel, D.P. 1858, 1, at p. 313.
rules of domestic territorial jurisdiction litigation internationaux342, the use of denial
Justice found the jurisdiction of French courts has dried up without so far
disparaître343.
Except for the denial of justice responds to the right to effective access to the justice344. Access to the
judge to agree that it is incompetent does not satisfy this desire of effectivity. Denial
Justice is a concept that clings to a fair trial. The guarantee of a
fair trial only makes sense that if is carried out in advance, a right to trial or right at the
remedies.
The concept of denial of justice is not unique to the right international privé345. The
mechanism to which it gave rise in this matter does not imply that a look
particularly sharp or worn foreign because procedural deficiency of the
foreign jurisdiction which substitute French courts is a "lack of".
"procedure". However, some authors advocated an extension of this concept to other
hypothèses346. The denial of justice may establish the jurisdiction of French courts
Although a foreign jurisdiction is attachable, since its rules of procedure only
not safeguard a fair trial. This extension is neither excluded nor expressly
admitted into law positif347, lets bring the denial of justice within the meaning of the law
international private denial of justice as envisaged in other matières348.
342 Judgment Patino supra followed by Cass. CIV. 1st, October 19, 1959, Pelassa, d. 1960, p. 37, note g. HOLLEAUX.
Rev. crit. int. PR., 1960, p. 215, note y. LOUSSOUARN; Cass. CIV. 1st, October 30, 1962, Scheffel, d. 1963, p.
109, note g. HOLLEAUX; B. ANCEL and y. LEQUETTE, Les grands arrêts de French jurisprudence de droit
international private, Dalloz, 4th ed., 2001, n ° 37, at p. 328.
343 V. notably Cass. CIV. 1st, January 13, 1981, Lady Bendern, J.D.I. 1981, at p. 360, note a. HUET; Rev.
crit. int. PR., 1981, at p. 331, note h. GAUDEMET-TALLON.
344 V. already the critics of the principle of jurisdiction of French courts rely on access to justice,
in particular, c. De BOECK, D.P. 1888, 2, p. 113, spec. p. 116; D.P. 1892, 2, p. 321; M a. PILLET, "examination".
comparative jurisprudence French and Anglo-American of jurisdiction in disputes between
"strangers", Rev. crit. int. PR. 1905, p. 61; p. 434; E. STOCQUARD, D.P. 1888, 2, p. 249; FOELIX, by c.
DEMANGEAT, Traité de droit international privé, I, Maresq. Ainé, 4th ed., 1866, p. 307; F. SURVILLE and F.
ARTHUYS, basic course of private international law, law and jurisprudence Arthur new Bookstore
Rousseau, 5th ed., 1910, n ° 410, p. 544.
345 V. e.g. art. L. 781-1 of the Code of organization judiciary and P. MATHONNET, "fair trial".
"in the French Penal normative space", supra, p.* *.
346 V. including d. HOLLEAUX as Paris, December 16, 1974, J.D.I. 1976, p. 146, supra note spec. p. 149;
A. SINAY-CYTERMANN, order to international judicial jurisdiction, thesis Strasbourg
n ° 353 and s., p. 662 and s.
347 V. including the judgment of the Court of appeal of Paris Prev. in the previous note.
348 Without denial of justice is formally part of the concepts covered by the fair trial right
Anglo-Saxon (a sort of denying justice remedy), there is however an equivalent in the principle audi
alteram partem; as in "Listening to the other party", there are "listening"; in other words the "right to be."
"heard". This analysis, however, seem somewhat artificial; unless one realizes that it is the same
reasoning that has followed the European Court of the human rights, culminating in what we discern in
the phrase "any person is entitled to that his case be heard fairly," "everyone is entitled to".
"that his case be heard". The inclusion of a right to trial within the right to fair trial reflects the
following tautology: for there to be a fair trial must be at least that trial. Could move forward
the glut argument because there is an art. 13 the right to use. But if the Court has attached
the right to trial in art. 6 § 1 and non-art. 13, is that it did not intend the right to use as
necessarily adjudicative. The right to use thus implies that its literal meaning.
Gold can be seen that the United Kingdom has not incorporated the art. 13 in its internal law. Litigants
British have right to fair trial, but not in use. They will prefer to construe this choice.
The United Kingdom did not conduct this incorporation due to a unitary definition of trial. Indeed, if
the trial is not that the judgment of a court, then the right to trial includes the right to use any that it
either. The right to use separated from the right to trial was therefore no sense and understanding that the single trial
existing is the fair trial: a trial unfair ceases to trial: it cannot be cancelled or
reformed. The British position is fairly consistent from the definition of the trial which is their own.
(b) the proper administration of justice
Common law, the concept of proper administration of justice is used to
determine special jurisdiction. Once the French jurisdictional
qualified in its entirety, it is not certain that a rule can designate the jurisdiction
French specially competent (the Reims or Nice). The jurisprudence views
in this case, the applicant may seize the Court of his choice, provided that this choice is exercised
in accordance with the proper administration of the justice349.
This concept has been most interesting developments in the Court of justice of
European communities, where it performs various functions. First, it allows
the Court to justify jurisdiction options available to the applicant by the Convention of
Brussels, options which derogate from the principle of the jurisdiction of the courts of the State of
domicile of the defendant provided for in article 2. This is referring to the notion that the Court of
Justice of the European communities seeks to reconcile various interests: the proximity of
dispute with the competent court and the concentration of litigation. Secondly, the right
administration of justice is the basis of so-called exclusive jurisdiction rules
former article 16, which designate a single forum mandatory, for example the
Court of the place of domicile of the building for disputes relating to rights in rem
real estate.
Define the content of the proper administration of justice, not what would be in the
framework restricts the interpretation of the Brussels Convention, therefore assumes accepting and
contradictions350. Same concept allows indeed to system options for
jurisdiction, their boundaries and the exclusive powers. It tends to designate the judge
which would be the "most suited to dispose, for reasons of proximity to the dispute and".
"ease of taking of evidence" 351. The term is also used
"trial efficacious" 352. Apparently, the proper administration of justice
would be a concept that covers practical interests (hence the term "administration").
Rules of direct jurisdiction which guarantee an objective link between the dispute and the Court
competent in would be an expression.
On the other hand, to satisfy "objective" proper administration of justice, "which".
is of fundamental importance in a convention which essentially must promote the
recognition and enforcement of judicial decisions outside of the State in which they
have been made, it is essential to avoid the multiplication of the competent courts;
"which heightens the risk of irreconcilable judgments." "This goal precludes, in".
In addition, any interpretation of the convention which, beyond cases expressly provided,
could lead to recognize the jurisdiction of the courts of the domicile of the applicant and that,
thereby allow it by the choice of domicile, determine jurisdiction
349 P. MAYER and V. HEUZE, Droit international privé, Montchrestien, 2001, n ° 295, at p. 195. ; Cass. CIV. 1st,
June 13, 1978, Rev. crit. int. PR., 1978, at p. 722, fn. b. AUDIT; J.D.I., 1979, at p. 414, obs. Ph. KAHN; Cass. Com,
December 11, 2001, the Mans c. Wuyts, J.C.P. 2002, IV, mutual 1168.
350 V. doctrinal discussions on the definition of the proper administration of justice, inter alia, b. ANCEL,
Note under C.J.C.E. January 10, 1990, Reichert I, Rev. crit. int. PR., 1991, p. 151; J.-m. BISCHOFF, note under
C.J.C.E. December 14, 1977, Sanders, J.D.I. (1978), p. 388; P. BOUREL "of connecting a few crimes".
"" special en droit international privé, multilatéraux 1989 II, at p. 255, spec. p. 365; A. HUET, under C.J.C.E. July 4th
1985, Autoteile, J.D.I., 1986, p. 449, "Judicial international jurisdiction in contractual matters", work.
fr. Dr.. int com. PR. 1981-82, p. 17.
351 C.J.C.E. February 19, 2002, Besix SA, § 31 and already C.J.C.E., October 6, 1976, Tessili ECR p. 1473, § 13, d. 1977
CHR. 287, note g. a.-L. DROZ; J.D.I., 1977, p. 702, note j.-m. BISCHOFF and a. HUET; Rev. crit. int. PR., 1977
p. 761, footnote P. GOTHOT and d. HOLLEAUX.
352 Stops Prev. in the previous note.
"competent" 353. Reading these extracts "representative" doubt the reality of the
concept of proper administration of justice. It is more an expression
preferred by the Court of Luxembourg to distill the rules of interpretation that it defines.
Choice the curious because the proper administration of justice is neither in the text
or in the preamble to the Brussels Convention.
The concept of proper administration of justice enjoys some links with that of
Security juridique354. In a judgment of 19 February 2002, the Court of justice of the communities
European thus recalled that the strengthening of the legal protection of persons
established in the community is one of the objectives set out in the preamble of the
Convention, it appears as synonym of the principle of legal certainty:
"The principle of legal certainty requires that the rules of jurisdiction which".
derogate from the general principle of the Brussels convention set out in article 2 (…) are
interpreted so as to enable a defendant normally notified to predict
reasonably to which jurisdiction, other than the State of domicile, it may
"attractive being" 355.
Compliance implementation or interpretation of the rule of jurisdiction to the
proper administration of justice is therefore a kind of test to ensure the
respect for the principle of legal certainty.
2. The recognition of a foreign judgment
The recognition of a foreign decision is submitted in common law in the
conditions laid down by decision Munzer356, namely the jurisdiction of the foreign court which has
rendering the decision, the regularity of the procedure followed in this Court, the application of
the competent law according to the French conflict rules compliance with public policy
international and the absence of all fraud on the law. In 1967357 Bachir, the Court of
Cassation stated that the condition relating to the regularity of the foreign proceeding "shall."
only appreciate French international public order and respect for
"rights of the defence.
The doctrine has systematised this jurisprudence by stating that the condition relating to
international public order dug a substantial public policy review and
procedural order, including the rights of defence in la notion d'ordre
international audience.
This control is to ascertain that the parties were able to defend
meaningful submissions at all stages of the proceedings. The enforcement judge must
ensure that the notification of the document instituting proceedings and the decision. It can also
refuse therefore to recognise a decision by evaluating modes of proof allowed by the
foreign judge. A recent decision held that ignorance, by the Court
foreign, of the principle of impartiality of the judge was a ground for refusal of enforcement of the
decision étrangère358.
353 V. example C.J.C.E. January 11, 1990, Dumez, ECR I p. 49, §§ 18 and 19; J.D.I. 1990, p. 497, note.
HUET; Rev. crit. int. PR., 1990, pp. 368, note h. GAUDEMET-TALLON.
354 V. e.g. C.J.C.E. 29 June 1994, Custom Made Commercial, ECR I p. 2913, § 14, 18; J.D.I., 1995, p.
461, note A.HUET; Rev. crit. int. PR. 1994, at p. 698, fn. h. GAUDEMET-TALLON.
355 Judgment Besix, prev, § 26.
356 Cass. CIV. 1st, January 7, 1964, Rev. crit. int. PR. 1964, p. 344 note h. BATIFFOL; J.D.I. 1964, p. 302, note
B. GOLDMAN; J.C.P. 1964 II, 13590, note b. ANCEL; B. ANCEL and y. LEQUETTE, op.cit., n ° 41.
357 Cass. CIV. 1st, October 4, 1967, Rev. crit. int. PR. 1968, p. 98 note P. LAGARDE; J.D.I., 1969, p. 102, note
B. GOLDMAN; D. 1968, p. 95 note e. MEZGER; J.C.P. 1968 II, 15634, note j. s. SIALELLI; B. ANCEL and Y.
LEQUETTE, supra. cit., no. 45.
358 Cass. CIV. 1st, December 3, 1996, Tordjeman, Rev. crit. int. PR. 1997, p. 328 notes H.MUIR WATT.
Of the Brussels Convention, article 27 (2) allows States to refuse
to recognize a foreign judgment if "the instituting proceedings or an equivalent document.
was not served or notified to the defaulting defendant regularly and in a timely manner to
"it can defend itself." Article 34 regulation leaves only the ground of
non-recognition linked to the absence of notification "in a timely manner and in such a way that it".
"to defend itself", deleting the condition of regularity. He stated that this ground
cannot be invoked by the defendant if it has not exercised a recourse to the
courts of the State of origin "while he was able to do so", allowing
ensure the loyalty of the party invoking this argument359.
Section 27-1 the Brussels Convention (article 34-1 of the regulations) permits
also in the Member States to refuse to recognize a foreign judgment would
contrary to public order (regulation requires an annoyance "Manifesto"). It became
long questioned about the possibility of including in public policy requirements
procedural, whereas article 27 (2) provides limited these only control where
the defendant has failed. An affirmative answer was accepted both by the interpretation
French as the Convention360 "community".
In case March 16 Pordéa 1999361, the Court of cassation stated: "whereas the".
right of everyone to access a judge to rule on its contention, enshrined in the second
"of these texts, falls within the meaning of the first international public order". The first text of
bicephalous visa is none other than article 27-1 the Brussels Convention. As to the
second… is article 6 § 1 of the European Convention on the rights of man, which is
so its official entry into international law private French.
The Court of justice of the European communities has suit of judges
French in the Krombach case. By judgment of 28 March 2000362, she admitted that the judge
the requested State may "take into account to the clause of public policy referred to in article 27"
item 1 of the convention, that the State of origin denied him the right to be
"be defended without appearing personally." "Le recours to the public order clause".
must be considered as possible in exceptional cases where the registered warranties
in the legislation of the State of origin and in the convention itself were not sufficient to
protect the defendant of a manifest breach of his right to defend himself before the judge
"original, as recognised by the ECHR".
Indeed of entanglement normative spaces could hardly hope for better.
B. penalty
Generic concepts identified above international law enforcement private only
can be linked to the distinction between the validity litigation and litigation in the
liability.
Of direct jurisdiction, the denial of justice, as the proper administration of
justice, to evaluate the competence of the courts. Their punishment is therefore
359 G A..-L. DROZ, "Rights of demand in private relations", Trav. com. fr. Dr.. int.
PR. 1993-94, p. 97.
360 V. for the earlier debate: h. GAUDEMET-TALLON, Brussels and Lugano, L.G.D.J., conventions
2nd ed., 1996, n ° 365 and s.; L. SINOPOLI, the right to a fair trial in the international law reports
private, research on the scope of article 6 § 1 of the European Convention on the rights of
l'homme en droit international privé, thesis Paris I, 2000, n ° 169 and s., p. 187-s.
361 Cass. CIV. 1st, March 16, 1999, Pordéa, Rev. crit. int. PR., 2000, p. 223 and note g. a.-L. DROZ, p. 181; J.D.I.
1999, p. 774, note a. HUET; Rev. Gen. Dr. proc. 1999, at p. 747, fn. h. MUIR WATT; Rev. Dr. aff. int. n ° 1, 2000, p.
119, chr. A. MOURRE; Gas. PAL. 2000, 1, metallurgy. p. 950, note M.-L. NIBOYET.
362 C.J.C.E. March 28, 2000, Krombach v. Bamberski, J.D.I. 2001, p. 691, note a. HUET; Rev. crit. int. PR.
2000, pp. 481, note h. MUIR WATT; Gas. PAL. 2000, 2, master. p. 1731, chr. M-L. NIBOYET.
provided by the courts responsible for applying these rules, the courts of the order
National Court and the Court of justice of the European communities as regards
the Brussels Convention.
Before the national courts, rules of direct jurisdiction are subject to the
regime of exceptions of procedure and in particular article 74 of the new Code
civil procedure requiring that they must be raised before any defence on the merits or end
estoppel. Part raises an objection of lack of jurisdiction must, pursuant to
section 75, give reasons and indicate the Court considers appropriate.
As regards litigation under common law, section 92 confers on the courts the
simple school raise notice their incompetence. For the purposes of the Convention of
Brussels, this rule must be combined with articles 18 to 20 (articles 24 to 26 of)
(Regulations). Judge, in this context, the obligation to check its jurisdiction if the defendant does
not appear. However, if the defendant appears without contesting jurisdiction, then the
judge loses his ability to declare itself incompetent. These rules are rejected when claims are made
the exclusive jurisdiction of article 16, j. to verify its jurisdiction which
that is the attitude of the defendant.
Jurisdiction raised by a party shall not affect the pursuit of the
procedure; Indeed, a judge may decide in a single decision on jurisdiction and the
merits of the case. In this case, the Avenue is calling. On the other hand, if the
Court of first instance held that jurisdiction, then is the path of the doubt
who is open and decided by the Court of appeal.
With regard to French international public order and the rights of the defence, their
sanction is to refuse to recognize and give strength binding decision
foreign. The parties will then have to enter directly the French Court of determination
their dispute. However, it should be noted that certain decisions are recognize an effect of
full right so that assent can intervene on the occasion of a subsequent control;
for example, for an action to enforce forced the foreign judgment.
In the regulation of 22 December 2000, this sanction can intervene only in
second instance, the first purely unilateral and according to article 40, excluding any
review of the grounds for refusal of foreign decisions.
The sanction of the different concepts related to the fair trial is thus no
specificity. It is fully integrated into the mechanics of private international law. At this
regard, the intrusion of article 6 § 1 of the European Convention on human rights
could cause some changes that will be discussed below.
II. origin of the concepts in space and time
Remarks to put the concepts above analyzed in
perspective. They will register as reception. With the changes suffered by the
concepts their appropriation by a normative gap, is article 6 § 1 of the
European Convention on the rights of man who lends itself best to this analysis.
A. reception
Concepts of denial of justice, administration of justice and rights of defence
are not specific to private international law. These are notions contained in the order
inside, the courts manage to save them when they decide on a
international private litigation. This layout does not actually alter their meaning:
It is simply an adaptation to the international situation.
These three notions are each relationship with fair trial Word
later involved with the growing reference in article 6 § 1 of the Convention
European human rights.
With regard to the denial of justice, which is the reverse of the access to justice, the prohibition is
today one of the headlights of a fair trial. Indeed, in the case of Pordéa, it is the
violation by the English courts the right to access to justice for the applicant has justified
refusal of enforcement of the judgment to visa article 6 § 1.
In addition, the right of access to the tribunal was consecrated as a general principle of law
communautaire363. Several occasions, the Court of justice of the European communities has
held on national legislation establishing a cautio judicatum solvi, which ties
the exercise of a claim to payment of a deposit in order to ensure payment
costs of the defendant. This legislation provided a security for costs for the
applicant foreign nationality. The Court held that they constituted a
discrimination prohibited by article 12 of the Treaty establishing the européenne364 community.
However, the principle of non-discrimination applies only if the national measure falls within the
scope of Community law. The Court analyzed the right of access to the
Court as a condition for the effective exercise of the freedoms of movement in the
Community.
The right of access to justice is devoted in various normative spaces. Consecrated in
international law deprived in terms of the rule of prohibition of denial of justice, it tends to
concentrate the other essential guarantees of fair trial.
The denial of justice is a concept often used in cases of entanglement
normative spaces. It expands then because it involves an assessment of the implementation of
justice abroad. In public international law, the prohibition of the denial of justice constitutes
a general principle, on which the European Court of human rights is also
supported to dedicate the right of access in the February 21, 1975 Golder judgment. However a
miscarriage of justice could be found even if a trial had been held therefore that some
procedural safeguards had not been respectées365. This meaning is analogous to
that retains the European Court of human rights in cases where it defines the
obligations of a State party in its relations with a foreign law. Thus, in the case
Soering, the Strasbourg Court held that extradition to a foreign State was
If required j. ensured the absence of a "flagrant denial of justice" in accordance with
étranger366.
363 V. e.g. C.J.C.E., May 15, 1985, Johnston v. Chief constable of the R.U.C. ECR p. 1651.
364 C.J.C.E., July 1, 1993, Anthony Hubbard v. Peter Hamburger, ECR I-3777; Rev. crit. int. PR. 1994
p. 633, footnote g. a.-L. DROZ; Rev. trim. Dr. eur. 1993, at p. 664, chr. J. G. HUGLO; C.J.C.E., September 26, 1996
Data Delecta Aktiebolag and Ronny Forsberg c. MSL Dynamics Ltd., ECR p. I-4661; Rev. crit. int. PR., 1997, p.
33 note g. a.-L. DROZ; Rev. trim. Dr. eur. 1997, p. 449, chr. J. G. HUGLO; C.J.C.E., March 20, 1997, Hayes v.
Kronenberger GmbH, ECR p. I-1711; Rev. crit. int. PR. 1997 p. 475, note g. a.-L. DROZ; CHR. J. G. HUGLO,
Prev. ; C.J.C.E., October 2, 1997, s Saldanha and MTS Securities Corp. v. Hiross Holding AG, Rev. crit. Dr.
int. PR. 1998, p. 283, footnote g. a.-L. DROZ.
365 V. P. DAILLIER, a. PELLET, Droit international public, L.G.D.J., 6th ed., 1999, n ° 474, at p. 751;
C. th. EUSTATHIADES, the international State responsibility for acts of judicial bodies and the
problem of denial of justice under international law, Pedone, 1936; A. V. FREEMAN, The International
Responsibility of States for Denial of Justice, Longmans, Green and Co., 1938, réimp, Kraus Co, 1970.
366 V. including e.c.h.r., req. n ° 1/1989/161/217, July 7, 1989, Soering v. United Kingdom, series A n ° 161, § 86
; J.D.I. 1990, p. 734, note P. ROLLAND and P. TAVERNIER; W. GANSHOF van der MEERSCH, "extradition and the".
"European convention on human rights Soering affair", Rev. trim. Dr. man 1990, p. 5; E.C.H.R.,
req. n ° 21/1991/273/344, June 26, 1992, Drozd and Janousek v. Spain and France, series A n ° 240, § 110; J.D.I.
1993, at p. 737, fn. P. TAVERNIER; F. SUDRE et al., "Chronique de jurisprudence of the European Court of."
"droits de l'homme - 1992", Rev. Univ. Dr. man 1993, p. 1.
With respect to the proper administration of justice, its links with the fair trial
appear less easily. However, ensuring proximity to the trial judge with the
dispute this notion raises a limit jurisdiction options available to the applicant and
Thus backup policy jurisdiction of the Court of the State of the domicile of the defendant. Of this
point of view, the proper administration of justice assumes the principle of equality of arms between
the parties, including prohibiting the actoris367 forum. This approximation is required
partly because of the reference above considered by the Court of justice of
European communities with the principle of legal certainty.
Implementing an option of jurisdiction comply with the proper administration of
justice to verify that the defendant can foresee the Court before which he is
attractiveness. The use of the proper administration of justice thus enables a
abstract verification of compliance with the guarantees of the parties. It is a formula
"objectified" protection of individuals.
Control of the proximity of the dispute with the competent forum operates also in law
common recognition of foreign judgments, without reference to the notion
proper administration of justice. Since Simitch368, the French Cour de cassation
admits that "whenever the French rule in solution of conflicts of jurisdiction"
does not assign exclusive jurisdiction to the French courts, the foreign court shall be
recognized competent if the dispute relates so characterized the country from which the judge was
"seized and if the choice of venue was not fraudulent." The condition concerning the existence
a relationship characterized between the dispute and the country of which the judge is likely to
cover the same meaning as those conferred by the Court of justice of the communities
European interpreting rules of direct jurisdiction in the Convention of
Brussels.
It is significant that the preservation of the rights of the parties in the foreign proceeding is
is not clearly envisaged for the control of the foreign jurisdiction. The
fair trial is sucked in recognition of foreign judgments by the
condition relating to the rights of the defence and international public policy.
The concept of rights of defence used in private international law is drawn in the
civil procedure. In 1828, the Court of cassation stated eloquently that
"defense is a natural law, no person shall be convicted without been stopped and".
"challenged to defend" 369. Even if it is consecrated by formally
Bachir supra, it is important to note that respect for the rights of the defence
is an oldest enforcement condition. It was implemented as soon as the
19Th century and first half of the 20th century for the recognition of
foreign decisions which escaped audit authority to révision370.
367. For a discussion of the rules of jurisdiction to the principle of equality of arms, v. L. SINOPOLI, thesis
Prev., n ° 133 and s. p. 150 and s.
368 Cass. CIV. 1st, February 6, 1985, Rev. crit. int. PR., 1985, at p. 369, chr. Ph. FRANCESCAKIS, at p. 243; J.D.I. 1985
at p. 460, fn. a. HUET; D. 1985, pp. 469, note j. MASSIP; B. ANCEL and y. LEQUETTE, op.cit. cit., no. 70.
369 Cass. CIV., may 7, 1828, s. 1828, I, p. 93; v. including h. MOTULSKY, "the natural law in practice."
"precedential: respect for the rights of the defence in civil procedure", papers, studies and process notes
civil, I, Dalloz, 1973, p. 60.
370 Cass. Req. November 11, 1908, the Goaster, D.P., 1914, 1, p. 118, report of Adviser DENIS; AIX, 27 March
1890, 1891, J.D.I. p. 210, Concl. Attorney General NAQUET; Montpellier, 21 March 1891, D.P. 1892, 2, p. 29
; Amiens, November 26, 1891, D.P. 1892, 2, p. 425, note P. PIC; J.D.I. 1895, p. 412; Douai, March 17, 1900, D.P.
1901, 2, p. 140; Lyon, March 20, 1920, D.H. 1929, p. 338; Trib. CIV. Seine, April 10, 1934, D.H. 1934, p. 373;
Trib. CIV. Seine, June 29, 1938, Bradford, J.D.I. 1939, p. 61; Trib. CIV. Seine, November 4, 1954, Lady
Oppenheimer v. Haymann, J.D.I. 1955, p. 650, note a. P.; Rev. crit. int. PR., 1956, p. 690 note Y.
LOUSSOUARN; Trib. CIV. de la Seine, March 15, 1956, Rev. crit. int. PR., 1957, p. 97, footnote h B.; Paris, 15
November 1960, Ermolieff v. Popoff, J.D.I. (1961), at p. 768; Rev. crit. int. PR., 1961, p. 397, note Y.
Despite the terminology, the rights of the defence are limited or only
rights of the defendant or the right to the assistance of an advocate. Each of the parties at trial
is thus admitted to assert his claims and obtain justice response. One such word
is able to cover more than the principle of audi alteram partem, one of the components of equality
armes371.
Other guarantees of a fair trial are included directly in the order
international audience. It is when the French judge control these guarantees within the framework
an International Convention. This is seen on the interpretation of
article 27-1 the Brussels Convention. There are also some of the principles
from the European Convention on the rights of man, such as the principle of impartiality of
j., included in the international public policy exception as a ground for refusal of
recognition by the conventions. So far the European Convention on the rights of
the man is not expressly mentioned. In the judgment of 3 December 1996 précité372, la
Court of cassation set aside the order granting a judgment of a court enforcement
Gabonese in accordance with the franco-gabonaise Convention on July 23, 1963, in the light of
article 34 of the above convention and the "principle of the judge's impartiality", "whereas it."
was argued that the foreign judgment had been rendered by a magistrate in which the
Supreme Court of Gabon, subsequently released a divestiture decision for
suspicion legitimate due interest possessed by the magistrate in a directed society
by Mr. Benard and while the judge's impartiality is a requirement of public order
"international".
In General, the French judge gives no indication on the provenance of the principles
applies to international public policy or the rights of the defence, thereby leaving
believe it refers simply to the core values of his own order juridique373.
The appearance of article 6 § 1 of the European Convention on human rights would allow
so simply to substitute for principled, reference a written rule. Indeed, the analysis
"sprung" traffic of a fair trial in private international law shows that
article 6 § 1 is reshaped by the enforcement judge, the mold being conditions
previously verified.
B. warping
Two risk of amputation of article 6 § 1 of the European Convention on the rights of
human exist when it is introduced into the generic concepts of law
international private relative to a fair trial. On the one hand, a very clear trend
who refuses to open competence control, especially in fors
prohibitive in terms of all of the components of a fair trial. On the other hand, the
relativism inherent in the private international law, particularly in terms of enforcement,
prevent the deployment of all of the effects of article 6 § 1374.
LOUSSOUARN; Trib. Gr. inst. Seine, January 5, 1965, Dlle Nyman v. Larrive, Rev. crit. int. PR., 1966, p. 563.
Note P. L.
371. In English law, the rights of the defence are unknown as a "lot of rights" or even as a
principle of the rights of the defence. What is known is the right to silence, single element containing formally
the expression "right to", but better known as the expression of privilege against self-incrimination.
372 Judgment, Prev
373 V. famous formula of substantial Lautour judgment relating to public order: "principles of universal justice."
"considered in French opinion as gifted international absolute" Cass. CIV. 1st, may 25
1948, Rev. crit. int. PR., 1949, p. 89, note h. BATIFFOL; B. ANCEL and y. LEQUETTE, op.cit. cit., no. 19.
374 V. including b. FAUVARQUE-COSSON, "compared law and private international law: the confrontation of two".
"logic through the example of fundamental rights", Rev. int. Dr. comp. 2000, p. 797; J. home, "rights".
"international human rights and international public policy, domestic law with international law;
These two ways, particularly significant is the Krombach Court judgment of
Justice of the European communities. To respond to the questions referred
by the German courts required court to fend of introductory remarks stating
that 'it is in light of these considerations should be answered to the questions'
"preliminary" 375. "According to settled case-law, fundamental rights form part.
integral to the General principles of law which the Court ensures compliance (…). To this end, the
Court draws from the constitutional traditions common to the Member States of
guidance provided by the international instruments concerning the protection of the rights of
the man facing the Member States have collaborated or of which they are subscribed. The European Convention on
safeguarding fundamental freedoms and human rights is, in this respect, one
"special significance" 376. To pursue: "the Court has expressly recognized the".
general principle of Community law under which any person is entitled to a trial
"fair, inspired by these fundamental rights", referring finally to article 6 §.
2 of the Treaty of the European Union "The Union respects fundamental rights as they are"
guaranteed by the European Convention for the protection of liberties and human rights
fundamental, signed at Rome on 4 November 1950 and as they result from traditions
constitutional common to the Member States, as general principles of law
"community".
The circulation of concepts is all the more remarkable in the case that the Convention
Brussels is not an act of secondary law. However, the Court does not take care of
justify set the General principles of Community law that it decides not to
the basis of the Treaty of the European Union, but on the basis of the 1971 Protocol
He giving mission the uniform interpretation of the Brussels Convention.
Most importantly, the taming of the European Convention on human rights does not go
without a certain selection of the procedural guarantees accepted for review and
foreign decisions. The Court of Luxembourg, we have already seen, admits here
the right to defend himself before the Court of origin may be penalised by the requested State on the
basis of international public policy, grounds for refusal provided for in article 27-1. But
insertion of the game of article 6 § 1 of the European Convention on human rights in the
within the international public policy exception is not neutral: review of
foreign proceeding thereunder acclimation (1) whereas of jurisdiction;
It is a genuine eviction resulting (2).
1. The acclimation of fair trial for control of the foreign proceeding
Although the Court of justice of the European communities and the Court of cassation
French have limited risk of contradiction between the European Convention on the rights of
the man and of the Brussels Convention, assuming the first game in
the international public order under the second exception, they have not completely
excluded. Indeed, public order trigger conditions do not correspond
necessarily to those of article 6 § 1 of the European Convention on human rights.
And inserting it into the public policy exception on plaice considerations which
are external. These considerations relate to the existence of a foreign decision
Mixtures Raymond Goy, Publ. University of Rouen, 1998, p. 333; Y. LEQUETTE, "international law".
"private and fundamental rights", fundamental rights and freedoms, Dalloz, 4th ed., 1997, p. 75; P. MAYER, "the".
"European convention on human rights and foreign standards," Rev. crit. int. PR.
1991 p. 651; "Right to a fair trial and conflict of jurisdictions", new developments in trial
fair within the meaning of the Convention des droits de l'homme, Nemesis - Bruylant, 1996, p. 125.
375 § 28.
376 § 25.
which the parties (or one of them) may have legitimately rely, and more generally to the
relativism that impose the confrontation with foreign legal systems.
Examine the manner in which the Court of justice of the European communities justifies the
answer to the second question. It States first that recourse to
article 27-1 the Brussels Convention "is conceivable that in the event where the".
recognition or enforcement of the decision given in another State Contracting encounter
unacceptable manner the legal order of the requested State, as it would violate
a fundamental principle. In order to respect the prohibition of review on the merits of the decision
foreign invasion should be a clear violation of a rule of law under review
as essential in the legal order of the requested State or recognized as a right
"fundamental in this legal order" 377. Prohibition of both consecrated the merits review
common law by article 29 of the Brussels Convention, would prevent the judge from
enforcement sanction non-obvious violations of the fair trial because it prohibits
the judge required to compare how the foreign judge held to what he would have
himself decided.
The need for a clear violation is expressly included in the new
wording of article 34 of the regulation. But the argument whereby international law
private could go without some relativism of the values of the Forum here loses its force, car
the Contracting States to the Brussels Convention as a whole are also parties to the
European Convention on human rights. Therefore, these are common values
the State of origin of the decision and State reception which are at issue. It is not
effect of refuse enforcement of a decision from a European State on the ground that it
performs differently than required for fair trial but to deny that that
a violation. For example, while a French judge may be shocked by the fact
that the defence does not have the floor last in English procedure, this means
PAS as the French judge must infer that violates such a procedure at the
rights of the défense378. Admission control of article 6 § 1 at the exequatur stage only
not mean that national judges must refer to the manner in which guarantees
procedural are carried out in their normative space to enjoy the foreign proceeding.
But national judges are able to move beyond normative space which they are
from when they handle concepts like fair trial? The fact that they interpret
daily (or almost) this concept to achieve in their normative space would be a
obstacle practical the proposed construction. However, French judges have already shown
they were able to identify their own procedures when they are implementing the
status of compliance with international public policy and the rights of the defence, as
the next example shows.
A certain threshold of "violation" is also required in common law for the
triggering the condition posed by Bachir judgment. Here again it is not to require that
the foreign judge acted in the same way a French nor that any judge would have done
French procedural rule has been met. For example, the authority considers that
no indication of the remedies the Act of notification of the judgment is
not an infringement of the rights of the defence or international public policy to generate
a refusal to exequatur379. Alternatively, the requirement of motivation of the foreign judgment is
considered as fulfilled if equivalent documents (for example the conclusions of)
377 § 37, emphasis is.
378 Contra P .mayer, "right to a fair trial and conflict of jurisdictions" Prev., n ° 12, pp. 133.
379 V. notably Cass. CIV. 1st, November 29, 1994, Bettan, Rev. crit. int. PR., 1995, at p. 362, note Daniel
COHEN; Cass. CIV. 1st, 10 July 1996, rock, Rev. crit. int. PR., 1997, p. 85, footnote H MUIR WATT.
(parties referred to the decision) can substitute for a lack of motivation of
judgment he même380.
Here precisely the limits of the prohibition of the revision of the foreign judgment.
We require the foreign proceeding to be at any point in accordance with article 6 § 1 of
the European Convention on human rights is not to require that the procedure
foreign or at any point consistent with how the required for interpreting this
its procedural provision internal.
Some authors are opposed to the very high level of requirements and to the
precision rules which led the interpretation of article 6 § 1. For example:
Mr Mayer considers that the derived consequences of the principle of impartiality of the tribunal
of participation of a same judge at several stages of the procedure, do
could be required when required for rules on the recognition of a decision
étrangère381.
The challenge is clear: it is to measure the margin available States when they
ensure a fair trial in the particular configuration is the recognition
a foreign judgment or whether the interpretation of the European Court of rights of
man is also within this framework here.
The Court of justice of the European communities considers it in the framework
the interpretation of the Brussels Convention, this margin of manoeuvre it
belongs, even if it builds on the jurisprudence of the Strasbourg Court. Passerby
by the "constitutional traditions common to the Member States" without cover none
specifically, Luxembourg court appealed to the jurisprudence of the Court of
Strasbourg, to infer that "the national court of a Contracting State is entitled to".
consider that the refusal to hear the defence of an absent accused of debates is a
"clear violation of a fundamental right" 382. Therefore, the Court of justice Luxembourg
last judgment that breach of fair trial in this case was manifeste383.
The European Court of the rights of man, as a first step, adopted a
comparable approach by requiring States parties that the sanction of a denial of justice
flagrant384. As in the case of Drozd and Janousek this approach confined to the absence
of contrôle385.
But in particular, private international law the position of the European Court of
droits de l'homme has just taken a serious turn. In the case of Pellegrini v Italy of
20 July 2001386, the question was to determine the duties of enforcement against judge
Article 6 § 1. The guardian of the European Convention on human rights has
the occurrence stated that the Italian courts had committed a violation of article 6
380 V. notably Cass. CIV. 1st, May 17, 1978, Vanclef, J.D.I. 1979, p. 380, note d. HOLLEAUX (1 species);
Cass. CIV. 1st, October 9, 1991, Polypétrol, J.D.I. (1993), p. 157, note a. HUET. Rev. crit. int. PR., 1992, p. 516.
Note c. KESSEDJIAN (1 species).
381 P .mayer, "right to a fair trial and conflict of jurisdictions" Prev., no. 11, pp. 132-3.
382 Judgment Krombach, prev, § 40.
383. The Strasbourg Court, entered in the case of an appeal against the French State has considered
that actually French absentia proceedings had led to a violation of art. 6 E.c.h.r., req.
n ° 29731/96, February 13, 2001, d. 2001, note j. VP. MARGUENAUD. She did however not to rule on the
consequences of that breach on the required civil sentence enforcement judge.
384 V. Drozd and Soering, Janousek, previous cases.
385 V. including critics of g. COHEN-JONATHAN and J.-f. FLAUSS, "European Convention on the rights of".
"human and enforcement of criminal convictions pronounced abroad", Rev. trim. Dr. man 1994, p. 98;
spec. p. 107; F. SUDRE, "Is there a European public order?", what Europe for human rights?;
Bruylant, 1996, p. 39, spec. 79.
386 Req. 30882/96, j.-n. FLAUSS, 'News from the C.E.D.H'., A.J.D.A 2001, p. 1062; J.-P. MARGUENAUD,
Rev. trim. Dr. Civ. 2001, p. 986; L. SINOPOLI, "right to fair trial and enforcement: Strasbourg sonne them."
"bells in Rome (the judgment in Pellegrini v. Italy of July 20, 2001)", gas. PAL. 21-23 July 2002, p. 2.
§ 1 recognizing an ecclesiastical decision by an unfair process.
It specifies that the obligation to ensure the existence of fair trial abroad
is necessary insofar as recognized decision came from a legal order applying
not the Convention (Holy See). With regard to decisions from third States to the
European Convention for the recognition of which the France statue in function of
common law or international conventions bilateral, or multilateral control
fair trial appears to be "full" in the eyes of the Court of Strasbourg;
While the condition of "l'Ordre public international and rights of the defence" shutdown
Bashir was invited to a national shaping (although the term "international") requirements of
fair trial at the level of enforcement.
With regard to decisions from States that apply the European Convention of
droits de l'homme, if interpreted this phrase as to any Contracting State, the
reading a fortiori the case Pellegrini would lead to not to impose control procedure
stranger to the yardstick of a fair trial, the European Court of human rights holding
no doubt that the action before it against the State of the original decision is sufficient to ensure the
protection of fair trial.
If this interpretation were to prevail, then the Court of justice Krombach of
European communities - taking stronger since the communitarisation of the
Brussels Convention - poses an additional degree of control over what is
required by the European Convention on human relations between States rights
the European Union. The appropriation of the European Convention on human rights
by leads community normative space so most complete protection, which is
consistent with the weakening of the other conditions for enforcement.
2. The expulsion of the trial fair exorbitant fors antidumping
Exorbitant forums, such as articles 14 and 15 of the civil Code, introducing a privilege
jurisdiction to litigants of French nationality, give an advantage to one of the parties.
Of direct jurisdiction, this allows the applicant to apply to a court
maintaining objectives unrelated to the dispute and may promote the forum actoris. In matters
indirect jurisdiction, therefore only the head of jurisdiction exorbitant is assigned a
exclusiveness, this allows the defendant to a foreign proceeding to interfere with the
recognition and enforcement of the legal order of the required for decision. Thus,
roughly a Frenchman will seize the French courts and objecting to the
recognition of a foreign judgment in France. The privilege of national jurisdiction
can therefore be seen as a breach of the principle of equality of arms in the access to the
Court of each of the parties387.
The list of forums exorbitant "European" is easy to prepare insofar as
article 3 of the Convention expressly excluded the game to persons
domiciled in the territory of one of the States parties (and article extends the application at all)
persons domiciled in the territory of a member to a defendant
(domiciled in a third country). However, in rare cases, the rules of the
Brussels Convention will be combined with the internal rules, and possibly with
rules of exorbitant fors. Such a configuration has been shutdown
Supra Krombach rendered by the Court of justice of the European communities.
In this case, the German courts questioned the Luxembourg Court on
the question of whether they could refuse recognition of a French decision
the payment of damages, sentence pronounced by the competent criminal court
387 D. COHEN, "The European Convention on human rights and the French private international law"
Rev. crit. int. PR., 1989, p. 451; L. SINOPOLI thesis Prev., op.cit.
because of the only French nationality of the victime388. The Court responded very explicitly
in the negative, indicating that the Brussels Convention is based on a principle
fundamental lack of control of the foreign jurisdiction, what emerges
from article 28 paragraph 3 postulating that "the rules on jurisdiction does."
'not affect public order referred to in article 27-1' 389.
Insertion of a fair trial to the public order is a clear result:
the Court of justice of the European communities prohibits any review of the implementation
a rule of jurisdiction to the fair trial guarantees in the
recognition of a foreign judgment.
This refusal to confront the rules of jurisdiction to the fair trial appears also
a recent decision by the Panel limited social Chamber of the Court of
cassation390. Lapidary manner, the three judges - who decide on an appeal with the
solution is necessary pursuant to article l. 131 - 6 of the Code of judicial organisation.
set "for a person of French nationality law to sue a foreigner before."
a French Court has for consideration as a foreigner to translate a French
before a French Court, does not affect the provisions of article 6-1 of the
"European convention". However, the counterpart to abroad - article 15 of the civil Code - is
mainly a way for the French to oppose a judgment France recognition
étranger391.
The movement of the fair trial of normative space does therefore not without
some adaptation, sometimes verging on denaturation. In private international law, the
formula [fair trial = public order procedural] is simplistic, it reflects a method
which is to enhance previous requirements by new texts by placing
However the really innovative effect could result.
III. originality of normative space
The chosen normative namespace is composite. The importance of international instruments and
Community en droit international privé prevented to select only the right treatment
international private national origin. However, if international law conventions
international private purpose first applied in of internal orders
so it is difficult to situate them own normative area, it is different for this
concerning the Brussels Convention and subsequent regulations. Research on the
fair trial in French private international law could not ignore space
normative community.
Another originality, French private international law is not a space
normative, it is a matter of French normative space and normative space
community today. Applications existing in private international law of the trial
fair therefore draw on these normative spaces. Yet each of them receives by bias
various, the European Convention on human rights standards.
States parties to the European Convention on human rights does not place
in terms of competition in its regard. If its application is acclimatized to the
l'Ordre national vocation to apply structures is not disputed that it is
388 Of direct jurisdiction art. 5 4 of the Brussels Convention provides that the defendant domiciled
on the territory of a Contracting State may be sued in another Contracting State if it is an action in
repair of damage or of an action for restitution based on an offence before the Court
public insofar as action, according to its Statute, this Court may entertain the civil action.
389 § 31.
390 Cass. Soc., July 10, 2001, appeal n ° 99 - 43 495, Jurisdisque Lamy.
391 V. including d. COHEN, op. cit.
the consequence of ratification. On the other hand, the community has not ratified the Convention
European human rights, it is it appropriated directly (i.e. without)
(pass through the legal orders of the Member States) by jurisprudential formation of
General principles of Community law and the provisions of the Treaty from the
preamble to the single European Act européen392.
As a result of judicial protection of the Convention guarantees
rights of man by the Faculty of the individual action before the
Strasbourg Court consequences different "titles" to which applies the
European Convention on human rights are important. The Court has jurisdiction to
adjudicate any query alleging violation of the Convention by a Contracting State. She
It is not to determine the liability of the community, including the Court of justice of
European communities thus retains control. Unless that… measures adopted by
States in accordance with the community standards which would contradict the Convention
European human rights will be considered by the Strasbourg Court as
attributable to the membres393 States. Within the framework of relations between EU Member States
European, overlap the definition of the fair trial of the State required for one of the
Court of justice of the European communities and the European Court of rights of
the man.
All this is added the specificity of legal recognition of a judgment
Foreign leading to a fair trial is here a "measure" normative space
abroad.
IV. effects fair trial seconds
This is in recognition of judgments foreigners seconds effects of
fair trial are easily palpable. Indeed, the specificity of the procedure
enforcement is to limit the role of the judge required to verify that the foreign judgment fulfils
certain conditions, but without redoing the entire trial. The evolution of 20th century
reflects greater openness to foreign decisions by a containment of
enforcement judge's role.
This seems to be given in question if it requires a control tight procedure
foreign to the requirements of a fair trial. Could the enforcement judge
refuse a foreign decision different from that which he himself would have rendered subject
excuse a violation abroad for its design of a fair trial? It seems to us
difficult to prejudice of such an attitude on the part of the courts.
Such an argument is more persuasive if it relates to the conduct of the parties: to
escape enforcement of a foreign decision, the litigant is not likely to invoke
all-out a violation of fair trial abroad at least delaying title? But
so the argument concerning all the conditions for enforcement and questioned
the appropriateness of any control foreign decisions.
392 Art monitoring. (F) of the EU Treaty now art. 6 § 2 since the Treaty of Amsterdam, v.
especially j.. RENUCCI, European law droits de l'homme, L.G.D.J., 3rd ed., 2002, pp. 369, and s. and
references cited; G. COHEN-JONATHAN, "European Convention on human rights."
J. - CL. Europe, fasc. 3500 to 6510, n ° 16 and s.
393 V. including e.c.h.r., February 18, 1999, Matthews v. United Kingdom, req. n ° 24833/94 and the suite which will be
given motion by Emesa SUGAR v Netherlands alleging non-compliance procedure
followed before the community courts in art. 6 § 1 of the European Convention on human rights.
The question arises with particular acuity in the European Union,
where is mentioned the idea of a suppression of the contrôle394. This would lead to free movement
decisions of justice which may claim the concern to give decisions of justice a
best effectiveness. However, the effectiveness of the decisions of justice is itself one of
guarantees of fair trial. From the moment where you consider that pathways
remedies in the country of origin of the decision are sufficient to ensure the requirements of the trial
fair, there is more than a step to admit that the concern for effectiveness
decisions precedence over control of a fair trial by Mr. Justice required.
However, such a prospect seems distant in the light of the increased severity of
control based on the fair trial evidenced by recent decisions discussed above.
In this regard, and conclusion, it is spicy noted that harmonisation of
fair trial resulting from the European Convention on human rights, has strengthened the
review of trial foreigners, whereas one might have thought that the process of construction
a common notion of a fair trial would result in mutual trust between the
courts and a reduction in the control. However, this paradox is only apparent. Can be
indeed to analyze these controls as contributions to the process of harmonization,
that does not seem to pay in the ease of the a minimum once is not custom.
Conclusion
This composite normative namespace allows more to identify how to intersect the
eyes of a normative space on another of trial to define this
notion, hence the use of a more analytical than synthetic method.
Enforcement leads a national legal order to speculate about how a
other. Such an approach is found in international criminal law. But this process
observed also in international spaces: thus the International Court of
Justice is implementing some concepts that can be attached to a fair trial while
that it also has the opportunity to monitor the implementation by the States; Similarly for the
international criminal tribunals when dealing with the conditions of arrest by the
States.
But it could be said of the European Court of human rights to a
difference: it lies rather naturally on the side of "the eye controller" without having to
implement itself fair trial unless it applies article 6 § 1 to
itself.
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