Contrasting Approaches Between French and American Law
Contrasting Approaches Between French and American Law
Franco-American Conference organized by the Paris Bar - Introductory
remarks by Jean-David Levitte, Ambassador of France to the United States,
Ronald Reagan Center, Washington D.C., November 11, 2004.
Source: Embassy of France, Washington D.C.
Ladies and gentlemen,
It gives me great pleasure to open this Franco-American conference offering a
comparative approach to the French and American legal systems and to business
I’d like first to thank and congratulate the Paris Bar, in the person of its
chairman Jean-Marie Burguburu, for taking this initiative, and all the
institutional partners who were kind enough to join us in this important
The French Embassy in Washington, for its part, is pleased to have made a
contribution to the conference and to have secured the participation of many of
its contacts in the economic and legal spheres.
The French Ministry of Justice also had an important role, alongside the
Paris Bar, in promoting the event, and it’s an honor for me to welcome in a
moment Nicole Guedj, Secretary of State to the Minister of Justice who will be
speaking here, together with Justice Breyer.
I am glad to announce that a taped message from France’s Justice Minister,
Dominique Perben, will also be heard immediately after my speech.
As many of you know, France has been celebrating the bicentennial of its Code
Civil this year.
It’s an important event because the Code Civil has a unique place in France’s
institutions: it has been in force from the Empire to the present Fifth Republic
and has become a virtual repository of the nation’s past.
It was also a benchmark for many legislators beyond our borders throughout
the 19th and 20th centuries, and even today its destiny is tied in with history
in the context of European integration.
Far from being a “monument” from the past, the Code Civil, together with its
core concepts, is still a source of inspiration today for many countries wishing
to promote their economic development.
But the Code Civil, or to be more precise the written law of the
Romano-Germanic tradition it perpetuates, is not the sole model, obviously.
The development and modernization of economic systems has been accompanied by
a more general phenomenon, namely the accelerated movement of goods, capital and
people on a global scale, which is producing real competition between legal
The globalization of trade has only added to the importance of the legal
questions that come up in international relations. Today, managing a company
well calls for effective legal management; by that I mean legal risk-management
by choosing among the various solutions facing economic actors.
Traditionally, the choice has been between the two major legal systems that
co-exist world wide:
first, the common law system: jurists traditionally cite in its favor its
pragmatism and flexibility with regard to economic developments;
and second, written Roman law, supposedly more suited to guaranteeing the
legal security which economic operators seek and which limits recourse to the
In real life, and the entire legal community is unanimous in acknowledging
this, the differences between these systems are becoming less marked these days,
especially regarding the sources of law. For example, in countries with written
law, the role of the judge and jurisprudence continues to grow.
Conversely, the doctrine of precedent nowadays has ceased to play an absolute
role in common law countries, where legislative texts limiting the judge’s
powers are increasing.
What we’re seeing today is a convergence of legal systems, and the emergence
of new, mixed systems which adopt the most pragmatic solutions, the ones best
adapted to a country’s social, cultural and economic situation.
Also, as we know from history, two legal systems that would seem to be
complete opposites can effectively coexist in some places : I’m thinking
naturally of the dual legal systems which our neighbors in Quebec are
particularly attached to, and the State of Louisiana where civil law continues
to be taught and applied alongside common law.
Monsieur le Bâtonnier, in the title of this conference, you chose to speak of
“contrasting approaches” between French and American law.
As ambassador, I’m naturally comfortable with reasonable language like that,
which seems to me more equitable than making a more radical comparison of the
laws of our two countries as some do.
It is also more in keeping with the fact, which I mentioned a moment ago,
that the two legal systems are moving closer together, and it more accurately
reflects the spirit of the work which is starting today: namely, to compare our
experiences of legal practices on both sides of the Atlantic and together define
the most useful points of convergence.
What better field of study is there for this than business law, where the
finest minds are with us in this room today?
Law, as regulator of conflict and guarantor of balance in society, has a
significant impact on the dynamism of economics in developing countries and in
the modern economies.
The renowned Peruvian economist Hernando de Soto has made it abundantly clear
that when the people of developing countries are excluded from the legal system,
as is often the case, their exclusion is an obstacle to economic and social
But aside from that initial observation, economic and social development
entails a constant reworking of legal rules, which leads at the same time to
gains and losses for some or all of society. The goal of an economic analysis of
the law is precisely that: to determine the costs and benefits in order to
inform the choice of the decision-maker.
In that regard, the World Bank (and here I welcome General Counsel Roberto
Danino, who will speak in a few minutes) is constantly fueling the debate on
development issues and economic law.
We have two recent but already well-known reports as evidence: “Doing
Business” and the “World Development Report.”
These reports on the legal framework of setting up and running a business
carry weight with economists and in business circles, even if they are sometimes
They also show that the legal and regulatory framework of business activity
must be re-thought in the global economic environment, to include, for example,
the quality of public services and the importance of infrastructure, both
equally essential to the development of a business.
French law long ago developed a particularly effective concept: the
concession of public service, nowadays more commonly known as a “public-private
partnership,” which will be discussed today.
In France the legal framework of these unique partnership arrangements made
it possible, for example, to develop a modern highway system in record time and
to acquire recognized know-how in public utility services such as water
management and urban mass transit.
I am pleased that this conference affords an opportunity to discuss these
successful solutions so as to help lay to rest what Ernst and Young, in their
2004 report on the economic attractiveness of France, called the “French paradox”:
since 2001, France has ranked third in the world in attracting foreign direct
investment, and yet its economic image often doesn’t reflect this success.
All too often, this image focuses on certain aspects of our social and labor
legislation, which the government is working to reform, yet without integrating
what are considered France's assets in the eyes of business executives: good
infrastructure, a highly-skilled work force, and the clarity and stability of
its administrative and legislative environment.
Beyond these few examples, today’s debates will show, I’m certain, the
diversity and above all the complementary nature of the solutions our respective
legislative systems offer to promote the legal framework best suited to ensure
the satisfactory functioning of the economy.
This is a subject of paramount importance, and I’m glad our debate today
affords us an opportunity for a high-level meeting between French and American
I wish you a successful day. Thank you for your attention, and I am now
pleased to yield to floor—via video, that is—to Mr. Dominique Perben, France’s
Minister of Justice./.