Comparative Law

I am interested in the general theory of comparative law and in certain particular fields such as comparative civil procedure, contract law or private international law. I have also managed or established programmes offering new forms of legal education which all had a strong comparative law component.

Below are some of the outcomes of my work in this field.

International Attractiveness of Contract Laws

Over a period of ten years, I have conducted several empirical studies to try to assess the international attractiveness of contract laws and to contribute to a better understanding of the international contracting process by unveiling the factors that influence international commercial actors when they choose the law that governs their transactions.

In a first article (The International Market for Contracts – The Most Attractive Contract Laws, 34 NORTHWESTERN J. INT.’L & BUSINESS 455 (2014)), I studied 4,400 international contracts concluded by approximately 12,000 parties who participated in arbitrations under the aegis of the International Chamber of Commerce. The article showed that parties’ preferences are homogenous and that the laws of five jurisdictions dominate the international market for contracts. Among them, two were chosen three times more often than their closest competitors: English and Swiss laws. The Article then inquired which features made English and Swiss laws more attractive than other jurisdictions’ laws and sought to verify whether the postulate is true that international commercial parties are rational actors. It concluded that while some parties might have the resources to study the content of available laws before deciding which one to choose, others have no intention of investing such resources and are happy to rely on cheaper means to assess the content of foreign laws, including proxies. Furthermore, some parties suffer from cognitive limitations, the most important of which is parties’ fear of the unknown and their correlative need to select a law resembling their own. Finally, unsophisticated parties might not fully appreciate the extent of their freedom to choose the law governing their transaction and might wrongly believe that it is constrained by largely irrelevant factors such as the venue of the arbitration.

In a second article (The Laws of Asian International Business Transactions 25 WASHINGTON INT’L L.J. 35 (2016)), I tried to assess whether there are regional variations by focusing on Asia. To that end, I conducted an empirical analysis of unpublished data of the four main arbitral institutions active in Asia (outside Mainland China) for the years 2011 and 2012. I found that three laws dominate the Asian market for international contracts: English law, U.S. law, and, to a lesser extent, Singapore law. The article made three contributions. First, it documented the regional variations in parties’ preferences: the laws which are successful in Asia are different from those in Europe. Second, it showed that, while English and U.S. laws might govern an equivalent number of transactions, they are chosen in very different circumstances. U.S. laws are typically chosen in transactions between a U.S. and an Asian party where the parties also agree to settle their dispute in the United States under the aegis of the international division of the American Arbitration Association. These are thus transactions where the bargaining power of the U.S. party was strong and enabled that party to impose choice of a U.S. dispute resolution institution and of a U.S. law. By contrast, English law is chosen in transactions between parties of all nationalities, in the context of arbitration under the aegis of almost all institutions, in proceedings with their seat anywhere in Asia. English law appears to be the only law to be considered as attractive to international commercial parties operating in Asia and seeking an option other than the laws of the party’s home country. Finally, the article sought to explain the remarkable attractiveness of English law in Asia. It explores whether certain substantive rules of English law might be especially appealing to international commercial parties, and whether the fact that many Asian jurisdictions are former English colonies might play a role. It concludes that the most convincing reasons are the wide presence of Commonwealth educated lawyers in Asia and concern about the American way of law.

Finally, in a third article written with Mexican scholar Manuel Segovia (Choice of Law in Latin American Arbitration: Some Empirical Evidence and Reflections on the Latin American Market for Contracts, (2020) 77 THĒMIS-REVISTA DE DERECHO), we focused on Latin America. We conducted an empirical analysis of data that we were able to gather (with great difficulty) from arbitral institutions active in Latin America, with a focus on years 2011 and 2012. We then offered some reflections on the results and elaborated on whether they can be explained by the territorial approach of choice of law in Latin America, the importance of the United States as a trading partner for Latin American countries and the extent to which Anglo-American lawyers are present on Latin American markets.

Legal traditions of the world

I also have a strong interest in macro comparative law and in the differences between the various legal traditions. I have written a textbook in French presenting the most significant legal traditions of the world, which is now in its fourth edition. Contrary to other French textbooks, this textbook does not essentially focus on western legal traditions and presents in equal details Chinese law, Japanese law, Islamic law (with a focus on Saudi Arabia, Egypt and Pakistan), Indian law (with a focus on Hindu law) and African customary laws (with a focus on South Africa).

Legal Education

I have managed and established several programmes offering new forms of legal education which all had a strong comparative law component.

For about 10 years, I was the director of the Paris Val de Marne-Sheffield Hallam Joint Degree in Business Law. Participants in this innovative and highly selective programme studied law two years in Sheffield Hallam University and then two years in Paris Val de Marne University. They received a common law and civil law education and were eventually awarded a law degree in each country (England and France).

In Luxembourg, I was the director of the Bachelor programme between 2010 and 2016 and established during my tenure a transnational bachelor in law. Most courses in this programme are taught from a comparative perspective. They do not focus on a single legal system, but rather present to students the possible models. The goal of this approach is to prepare students for the practice of the law in an international environment. It is believed that lawyers should be aware of the rules applicable not only in the jurisdiction where they practice, but also in other jurisdictions. One reason is that they should be aware of the differences in order to design the most appropriate strategies for their client. Another reason is that lawyers should be able to communicate effectively with their foreign clients, which requires an understanding of the differences between the law of the forum and the law of the jurisdiction of origin of their client. It is essentially for the purpose of this transnational bachelor that I have written my casebook Conflict of Laws – A Comparative Approach.