Conflict of Laws and International Jurisdiction: When Public Policy Is Not Enough to Set Aside a Treaty

Imagine: you are the owner of a small building in Juan-les-Pins, and you rent an apartment to a Swiss national. The tenant stops paying, and you sue them before the Grasse court. But the tenant retorts that, according to the contract, any dispute must be brought before the courts of their canton in Switzerland. What to do? This situation, mixing international law and property law, is more common than one might think on the French Riviera, where foreign residents are numerous.

The question that then arises for any owner or property professional is: can French public policy (the set of fundamental principles from which no derogation is permitted) be invoked to defeat a foreign jurisdiction clause? For example, if Swiss law applicable to the substance of the dispute is less protective than French law, can one demand that the French judge have jurisdiction?

The decision of the French Supreme Court of 14 October 1975 (No. 75-40.119) answers clearly: no. Public policy can certainly exclude the application of a foreign law that is too shocking, but it cannot call into question a rule of jurisdiction fixed by an international treaty. In short, the jurisdiction of the court is determined first by international conventions, even if the applicable substantive law seems unfair to you. Analysis.

The facts: a story like those that happen every day

Mr. Bloch, a travelling salesman (VRP) domiciled in Strasbourg, was hired in July 1960 by a Swiss company, Société des Pianos. He worked for them in France for nearly nine years. On 25 March 1969, he was dismissed. Considering the dismissal wrongful, he sued his employer before the Labour Court (conseil de prud'hommes) of Strasbourg. But the Swiss company contested the jurisdiction of the French court: it relied on the Franco-Swiss Convention of 15 June 1869, which provides that actions against a defendant domiciled in Switzerland must be brought before the Swiss courts.

Mr. Bloch replied by invoking public policy. According to him, Swiss law applicable to the substance of the dispute (the law of the contract) would be contrary to fundamental conceptions of French law, particularly regarding the protection of employees. He therefore requested that the French court retain jurisdiction, to allow him to escape that foreign law.

The Colmar Court of Appeal, in a judgment of 12 March 1975, ruled in favour of Mr. Bloch: it set aside the Franco-Swiss Convention on the grounds that French public policy opposed depriving a French employee of the protection of French social laws. The Swiss company appealed to the Supreme Court. The Supreme Court quashed the appeal judgment and remanded the case to another Court of Appeal. It held that public policy, even if it may prevent the application of a foreign law, does not allow the rules of jurisdiction of an international treaty to be set aside. The authority of the treaty is superior to domestic law.

The reasoning of the court — dissected

The Supreme Court relies on Article 55 of the French Constitution (which provides that treaties have an authority superior to that of laws, subject to their application by the other party). It recalls that the Franco-Swiss Convention of 1869 is an international treaty in force, which sets rules of judicial jurisdiction. These rules must be respected, even if the law applicable to the substance (for example, Swiss employment contract law) offends French public policy.

Why? Because public policy and jurisdiction are two different things. Public policy is a substantive concept: it allows the seized court to refuse to apply a foreign law contrary to essential principles of French law (such as freedom of association, gender equality, etc.). But jurisdiction is a preliminary question: before knowing which law to apply, it is necessary to determine which court is empowered to hear the case. Now, this jurisdiction is governed by the treaty, not by public policy. The court must first verify whether it has jurisdiction under the treaty; if it does not, it must declare itself without jurisdiction, without being able to use public policy to confer jurisdiction on itself.

The Court specifies that "the public policy nature of the substantive law does not require setting aside a rule of jurisdiction contained in an international treaty whose authority is superior to that of domestic law." In other words, even if Swiss law were shocking, that does not give jurisdiction to the French court. The solution is radical: the treaty prevails over domestic law for jurisdiction.

This decision confirms the previous case law on the primacy of treaties, but it clarifies it by clearly distinguishing jurisdiction and substance. It is not a reversal, but a logical confirmation. The lower courts had attempted a more protective approach, but the Supreme Court brings them back to a strict application of international law.

What this changes for you — concretely

For a landlord-owner in Vallauris renting to an Italian tenant: if your lease provides that disputes fall within the jurisdiction of the Italian courts (because the tenant is domiciled in Italy), you will not be able to sue before the Grasse court by invoking French public policy. You will have to go to Italy, even if Italian law is less protective for you. Concrete example: an unpaid rent of €12,000. If you bring the case in France, the court will declare itself without jurisdiction. You lose time and money (lawyer's fees, procedural costs). You should have provided from the outset a jurisdiction clause in favour of the French courts.

For a French employee working for a Swiss company: if your contract designates Swiss law, and you are dismissed, you will not automatically be able to bring the case before the French Labour Court. You must check the applicable convention (such as the Lugano Convention or the European regulations). If the treaty gives jurisdiction to the Swiss court, you must litigate in Switzerland, even if Swiss law seems less favourable to you. In this case, your only chance is to demonstrate that Swiss law itself is contrary to public policy, but that is argued on the substance, not on jurisdiction.

For a property developer buying a plot of land in Juan-les-Pins from a Belgian seller: if the contract contains a jurisdiction clause in favour of the Belgian courts, you will not be able to bring a claim for latent defects before the Grasse court, even if Belgian law is less protective. You will have to act in Belgium. Hence the importance of negotiating the jurisdiction clause at the time of signing.

Four tips to avoid this type of dispute

• Check the jurisdiction clause in your international contracts. When you sign a lease, an employment contract or a promise of sale with a foreign party, carefully read the clause designating the competent court. If it is a court outside France, you will have to go there in case of a dispute. Negotiate for it to be a French court, especially if the property or the work is in France.
• Do not invoke public policy lightly. Public policy may help you to exclude a shocking foreign law, but not to change jurisdiction. Do not rely on this argument to gain time or avoid a foreign court. Consult a lawyer specialised in private international law.
• Anticipate the costs of proceedings abroad. If you are forced to litigate abroad, the costs can be very high (local lawyer, translation, travel). For example, proceedings in Geneva can cost between €5,000 and €10,000 in lawyers' fees, not counting court costs. Include this possibility in your risk budget.
• Use European regulations if applicable. Since 2002, the Brussels I Regulation (now Brussels I bis) facilitates jurisdiction within the European Union. For disputes with a defendant domiciled in a Member State, you can often bring the case before the court of the place where the damage occurred (for example, the Grasse court if the property is in Juan-les-Pins). Check whether the bilateral convention (such as that with Switzerland) is more favourable or not.

Further reading: related case law and developments

This 1975 decision is part of a consistent line of authority. The Supreme Court had already held, in a judgment of 17 May 1973 (No. 72-10.500), that the Franco-Italian Convention of 3 June 1930 must prevail over domestic law for jurisdiction. More recently, the Court of Justice of the European Union (CJEU) recalled that the Brussels I bis Regulation prevails over bilateral conventions between Member States, but that conventions with third states (such as Switzerland) remain applicable. The trend is therefore towards a strict application of treaties, without the possibility of setting them aside by public policy for jurisdiction.

However, a notable development is the emergence of procedural public policy: if the proceedings abroad do not respect fundamental rights (right to a fair trial, access to a court), the French court could refuse to recognise foreign jurisdiction. But this is not the general case. In practice, French courts remain strict: public policy does not allow modification of jurisdiction.

For the future, with the globalisation of trade, jurisdiction clauses are becoming more and more frequent. Property professionals must be particularly vigilant: a simple clause in a sale agreement can oblige you to litigate on the other side of the world. The 1975 decision is more relevant than ever.

Checklist before acting

• Have I checked the jurisdiction clause in my contract? If so, which court is designated? Is it in France or abroad? If the contract does not provide for anything, jurisdiction is determined by European regulations or bilateral conventions.
• Can I invoke public policy to contest jurisdiction? No, unless the foreign law applicable to the substance offends a fundamental principle. But that will not change the competent court. You will have to litigate abroad, and then possibly contest the application of the foreign law before that court.
• What is the estimated cost of proceedings abroad? Inquire about local lawyers' fees, translation costs, and timelines. For example, proceedings in Switzerland can last 1 to 2 years and cost €10,000 to €20,000. Compare with proceedings in France.
• Can I negotiate a jurisdiction clause after signing? Yes, by addendum. If both parties agree, you can modify the clause. This can be useful if you realise belatedly that the designated court is unfavourable.
• Should I consult a lawyer specialised in private international law? Yes, before signing any international contract, or as soon as a dispute arises. A lawyer can analyse the applicable convention and advise you on the best strategy.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →