L’État de droit dans une dimension multiétatique: L’État de droit et le droit international privé

Abstract

Most often, the concept of rule of law is conceived as a phenomenon of public law and relatively little attention has been paid to the significance of rule of law in private law, let alone private international law. Even so, the goal of this article is to highlight that the requirements of rule of law have an impact on the method and the application of rules of private international law. The neutrality and the mechanical character of the classical conflict-of-laws method seems to reflect the formal concept of rule of law, primarily focusing on legal certainty and predictability in the course of the designation of the applicable law. However, even the classical method has permitted the appearance of certain substantive elements of rule of law, in particular the respect of human rights, in private international law. The ordre public clause and the application of overriding mandatory provisions opened this possibility. Moreover, due to the requirement of respecting fundamental rights and in the light of the case law of the Court of Justice of the European Union and the European Court of Human Rights, in the legal literature the view has been expressed that the methodology of private international law has undergone a change and it is oriented now towards the method of recognition that applies in more and more areas of private international law.