Party Autonomy in International Property Law - Peace Palace Library

6. Party Autonomy in French and Belgian Law
the interaction with PIL. It could be imagined that private parties use
PIL to avoid the closed system of property rights. The question is whether
they can choose a foreign legal system, which has a more open approach
towards new property rights.
6.4.1. General starting point: the lex rei sitae
The general PIL rule in French and Belgian PIL is the same as in other
legal systems: the law of the place where the goods are situated determines
the law that applies to these goods. This emerges from Article 3 par. 2 of
the Civil Code, providing that ‘immovables are governed by French law
even when owned by foreigners’. 35 In the second half of the 20 th century,
this rule was extended to movables. 36
In legal scholarship, this rule is considered to be the logical effect of the
numerus clausus principle: Since the national legal system acknowledges
only domestic property rights, only these rights will apply to domestic
goods. As parties cannot create unregulated property rights, they cannot,
on the basis of their party autonomy, appeal to foreign legal systems in
order to introduce them into French or Belgian law. 37
This rule was recently confirmed by the French Cour de cassation in its
judgment of 10 February 2010. In this case, an American woman, a widow,
vindicated a painting that was situated on French territory, and French
law had to be applied. This also entailed that the woman was confronted
35
Oddly enough, the official French translation of this text is: ‘Immovables are
governed by French law even when owned by aliens’.
36
Chambre des Req., 19 March 1872, Recueil Dalloz 1874, I, 475.
37
J. Erauw, Internationaal privaatrecht, in: Beginselen van Belgisch privaatrecht,
Mechelen, Kluwer, 2010, 634, n°. 550. See however: L. d’Avout, o.c., 676, n°.
513. This author argues that the relationship between the numerus clausus and
the lex rei sitae is contradicted by the analysis that German law, which would
stick to the closed system, easily recognises foreign security rights, while the
French system, which would be open in substantive law, is reluctant. However,
it can be opposed that German law is – with regard to security rights – more
flexible than French law. The recognition beyond statutory provisions of the
Sicherheitsubereignung or Sicherheitsabtretung and the extensive application of
title retention – including prolongation and extension clauses – demonstrate
that German substantive law is at least as flexible as French substantive law.
Vincent Sagaert
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