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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,
Dear friends,

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 law.

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 project.

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.

         Dear friends,

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 systems.

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 courts.

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 progress.

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 contested.

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 professionals.

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./.

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Directeur de la publication : Joël-François Dumont
Comité de rédaction : Jacques de Lestapis, Hugues Dumont, François de Vries (Bruxelles), Hans-Ulrich Helfer (Suisse), Michael Hellerforth (Allemagne).
Comité militaire : VAE Guy Labouérie (†), GAA François Mermet (2S), CF Patrice Théry (Asie).