Extinctive Prescription Between Substance and Procedure: Toward a Functional Choice-of-Law Approach in French and American Private International Law

The legal nature of extinctive prescription, whether it operates on the substantive right or merely on the faculty to bring suit, remains contested in civil law and acquires heightened stakes in private international law, where its characterization determines the applicable law. Within the contractual sphere examined here, French private international law attaches extinctive prescription to the lex causae, whereas American conflict of laws has traditionally treated statutes of limitation as procedural and governed by the lex fori. Drawing on a functional comparison of French and American law, this article argues that neither model adequately captures the institution’s dual character. It shows that the French substantialist characterization rests on a fragile domestic foundation still traversed by the right/action dichotomy and that exclusive attachment to the lex causae neglects legitimate forum interests. Conversely, the American procedural qualification has required corrective devices—borrowing statutes, governmental-interest analysis, and the Restatement (Second) § 142—that reintroduce substantive considerations. Examining the 1974 New York Convention, the article further demonstrates that substantive harmonization does not eliminate the need for characterization. It concludes that prescription is a sui generis institution calling for a functional apportionment between lex causae and lex fori rather than a single connecting factor; the construction of a complete operational model for such apportionment is reserved for further research.