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I had promised participants of the BIICL Business and Human Rights Annual Forum Annual Conference that I would be putting up my handwritten notes for my keynote, in electronic format. Here they are. It was a great forum.

Geert.

 

The third issue of the Journal of Private International Law for 2025 was just published. It contains the following articles:

Elena Rodríguez-Pineau, “Cross-border insolvency avoidance actions in the EU: a necessary reflection”

After 25 years, the European Union can boast of having harmonised EU cross-border insolvencies in a Regulation (recasted once). The EU is presently addressing substantive harmonisation of insolvency law (via Directives) within the Union with a focus on restructuring and stakeholders’ interests. Although such legislation should apply without prejudice to the EU Insolvency Regulation, this approach is somewhat difficult to articulate since that Regulation was drafted with a focus on liquidation and maximising creditors’ protection. This tension is particularly acute in relation to transaction avoidance actions as the Regulation sets a double avoidance requirement while the proposed Directive fosters a more pro-avoidance position. This paper suggests several options that the EU legislature may follow to revise the Regulation’s transaction avoidance rule. It is contended that such revision needs to bear in mind how the issue is being addressed outside the EU in order to consider the ad extra regulation of said actions.

 

Benjamin Hayward, “So many thoughts about Tesseract: a private international law perspective”

On 7 August 2024, the High Court of Australia handed down its decision in Tesseract International Pty Ltd v Pascale Construction Pty Ltd. In doing so, it held (contrary to existing practitioner consensus) that certain Australian proportionate liability laws apply in Australian domestic commercial arbitration. Existing analyses assess this case from an arbitration perspective. As this article shows, however, the case is really about private international law. This being so, this article critiques the High Court’s reasoning and also Tesseract’s existing commentaries from a private international law perspective. As arbitration is a dispute resolution process grounded in law, these critiques are offered in the service of helping Australian arbitration better secure its trade facilitation purposes.

 

Stefano Dominelli, “Torts in outer space: conflict of laws perspectives”

Human activities in outer space impose a reflection on the structural inadequacy of current connecting factors, such as the lex loci damni, which may not properly operate when all events are localised in areas (rather than a territory) not subject to the sovereignty of a State. By integrating space law principles and interests in conflict of law approaches, the aim of this work is to propose connecting factors which may apply in cases of satellite collisions or for torts in sub-orbital flights. Different constellations are created, each of which requires a specific assessment of the relevant interest which should mould specific solutions.

 

Thu Thuy Nguyen, “Governance of low-skilled labour migration: rethinking the potential of private international law for the promotion of decent work for migrant workers”

The proliferation of temporary labour migration programmes has enabled low-skilled workers from developing countries to seek employment in industrialised countries. However, due to inadequate regulatory frameworks at the national and international levels, these programmes fail to ensure decent work for the low-skilled migrant workers. By utilising the low-skilled labour migration between Vietnam and Japan as a case study, this article highlights the failure of the current regulatory framework in adequately governing the intermediaries and employers throughout the migration process. This article also presents the private international law challenges faced by migrant workers when initiating transnational civil litigation against abusive intermediaries and employers before Vietnamese or Japanese courts. To combat the exploitative practices of the migration industry and promote decent work, besides reforming ex-ante regulations, this article argues that the international community should reconsider the potential of private international law. This paper advocates that private international law could be better crafted to enable different stakeholders to engage in social dialogue about, and to seek the realisation of, the value of decent work. Based on this argument, this paper proposes solutions to remedy Vietnamese and Japanese private international law rules to facilitate the realisation of the value of decent work for low-skilled migrant workers under temporary migration programmes.

 

Aygun Mammadzada, “Beyond the model law: the case for a Commonwealth-wide adoption of the Hague Judgments Convention”

The 2019 Hague Judgments Convention (Judgments Convention) marks a pivotal development in private international law, offering a uniform framework for cross-border enforcement that enhances predictability and reduces legal fragmentation. By promoting legal certainty, it supports international trade and commercial relations and aligns with the broader push for greater judicial cooperation in the interconnected world. This article argues that it is in the clear interests of Commonwealth states to ratify the Convention. The Convention offers an avenue to strengthen the “Commonwealth advantage” by leveraging shared legal traditions and institutional ties to facilitate cooperation which the Commonwealth Model Law is unlikely to do on its own. Set against the backdrop of Brexit and the UK’s search for new legal alignments, the article further proposes that the UK’s ratification of the Convention can serve as a source of proactive inspiration for other Commonwealth states. As the key influencer and first Commonwealth state to ratify the Convention (apart from Malta and Cyprus, which acceded through their EU membership), the UK is uniquely positioned to promote wider adoption and reinforce both legal integration and commercial certainty. Such cooperative efforts can further consolidate the Commonwealth’s role in shaping the evolution of global private international law.

 

Bianca Scraback, “The international element requirement for consumer contract jurisdiction in the Brussels Ia Regulation”

Whether or not local jurisdiction in consumer contract cases is regulated in the EU by the Brussels Ia Regulation or domestic rules on jurisdiction hinges on the existence of a relevant international element. Even determining the relevance of international elements using a rules-based approach and despite two decisions of the CJEU, the paper argues that the requirement leads to unpredictability that is not warranted in light of the interests involved. It therefore proposes a legislative change limiting the determination of local jurisdiction to consumer contract cases where the parties are not both domiciled in the same Member State. If there are more than two parties involved, the paper proposes to include a rule modelled after Article 8(1) of the Brussels Ia Regulation.

 

Bálint Kovács, “Europeanisation of private international law: Balancing national traditions and EU rules”

The reviewed monograph provides a thorough examination of Hungarian private international law, set against the backdrop of EU private international law developments, and their application by the Hungarian judiciary. The book begins with a historical overview of Hungarian private international law, culminating in the 2017 recodification under the Act on Private International Law (APIL). It systematically explores sources of private international law, including national legislation, EU regulations, and international treaties. Key issues such as choice-of-law principles, jurisdiction, recognition and enforcement of judgments, and international civil procedure are dissected with comprehensive reference to Hungarian jurisprudence. The book also contains the English translation of the Hungarian APIL, as well as a complete list of bilateral and multilateral international agreements that include private international law provisions to which Hungary is a party. Its clarity, analytical depth, and practical insights make it a significant contribution, and an invaluable resource for both scholars and practitioners.

On 16 December 2025, the European Parliament approved at first reading the proposal for a directive amending, among other legislative measures, Directive (EU) 2024/1760 on corporate sustainability due diligence (CSDDD). The proposal now awaits approval by the Council of the European Union. As reported on this blog, the amending directive, part of the Omnibus Simplification […]

Par arrêt du 2 décembre 2025, la chambre criminelle de la Cour de cassation précise les conditions dans lesquelles l’exécution d’un mandat d’arrêt européen peut être refusée par la chambre de l’instruction en cas de poursuites exercées pour les mêmes faits en France, ainsi qu’en cas d’atteinte alléguée à la vie privée et familiale de la personne recherchée.

en lire plus

On 2 December 2025, the Court of Justice of the European Union rendered its judgment in case C-34/24, Apple Store Nederland. The case was already commented on this blog by Jorg Sladic this morning as well as by Burkhard Hess a few weeks ago, and by Geert van Calster on his blog. Both Burkhard and […]

FIGC et CONI
Concurrence
L’avocat général Spielmann estime que le droit de l’Union s’oppose à une réglementation qui ne permet pas aux juridictions nationales d’annuler des sanctions sportives illégales

Slagelse Almennyttige Boligselskab Afdeling Schackenborgvænge
Principes du droit communautaire
Interdiction de discrimination : la Cour de justice précise, en rapport avec la loi danoise en matière de logement public, les situations pouvant constituer une discrimination fondée sur l’origine ethnique

Sidi Bouzid
Espace de liberté, sécurité et justice
Protection internationale : le refus par le demandeur de son transfert dans un autre centre d’hébergement ne peut pas justifier le retrait du bénéfice de l’ensemble des conditions matérielles d’accueil

Amazon EU (Tarifs minimaux de livraison de livres)
Libre circulation des personnes
L’imposition, par une mesure nationale, de tarifs minimaux pour la livraison à domicile de livres doit être analysée à la lumière des règles en matière de libre circulation des marchandises

Storstockholms Lokaltrafik
Principes du droit communautaire
RGPD : en cas d’utilisation d’une caméra-piéton lors du contrôle de billets, certaines informations doivent être fournies immédiatement au passager concerné

SACD e.a.
La recevabilité d’une action en contrefaçon du droit d’auteur d’une œuvre collective doit garantir le respect du droit à une protection juridictionnelle effective, en ne rendant pas la procédure prévue inutilement complexe ou coûteuse

Hamoudi / Frontex
Action en dommages et intérêts contre Frontex en cas de renvoi sommaire : la Cour protège le droit à un contrôle juridictionnel effectif

WS e.a. / Frontex (Opération de retour conjointe)
Opérations de retour conjointes : l’arrêt du Tribunal rejetant le recours en indemnité d’une famille de réfugiés syriens contre Frontex après leur transfert de la Grèce vers la Turquie est annulé en grande partie

Commission / Pologne (Contrôle ultra vires de la jurisprudence de la Cour de justice par une cour constitutionnelle)
État de droit : la Cour constitutionnelle polonaise a manqué à plusieurs principes fondamentaux du droit de l’Union en méconnaissant la jurisprudence de la Cour de justice

On 2 December 2025, the Court of Justice gave its ruling in Apple Nederland Store (case C-34/24), on the interpretation of Article 7(2) of the Brussels I bis Regulation in cases regarding infringements of cartel law. A first comment on the judgment, by Burkhard Hess, was published on this blog the day after the judgment […]

The latest issue of RabelsZ has just been released. The table of contents is available here. All content is Open Access: CC BY 4.0. More recent articles and book reviews are available Online First.

 

ESSAYS

Anne Röthel, Debatten über das Vergleichen. Wanderungen zwischen Rechtsvergleichung und Komparatistik [Debates about Comparison. Journeys between Comparative Law and Comparative Literature], pp 615–647, https://doi.org/10.1628/rabelsZ-2025-0060

Many academic fields look to comparative methods in pursuit of insight, with scholars debating how to proceed and what they hope to learn from the comparison. This article explores what comparative law stands to gain from interdisciplinary dialog with other fields of comparative inquiry. By way of example, it evaluates the potential gain from several journeys into the field of comparative literature. At first, these journeys back and forth between disciplines reveal a number of parallels: a striking resemblance between each field’s narrative of its own becoming; both fields’ exposure to fundamental criticisms; both fields ethicizing along similar trajectories; each one’s encounter with related dilemmas. At the same time, these journeys into comparative literature reveal implicit hierarchies and orientations in comparative law. But these cursory journeys through the history of comparative literature also counsel that comparative law would do well to avoid letting its own debates over the direction of the field veer into polarization and name-calling, into a kind of struggle that is mostly unwinnable and unproductive.

 

João Costa-Neto, João Guilherme Sarmento, From Roman Marriage to Unmarried Unions.
Defining the Requirements for de facto and Registered Partnerships, pp. 648–682, https://doi.org/10.1628/rabelsZ-2025-0059

This study examines the historical and comparative evolution of family law, tracing the transition from Roman marriage to contemporary partnerships. The article explores how Roman law conceptualised marriage as a social institution based on affectio maritalis, detailing its transformation through Christian doctrine into an indissoluble sacrament and its subsequent adaptation within modern legal systems. By analysing legal frameworks in Germany, Italy, France, England, and Brazil, the inquiry highlights the varying degrees of recognition granted to unmarried unions, from informal cohabitation to registered partnerships. The comparative analysis reveals the dynamic interplay between tradition, societal norms, and legal evolution, underscoring how distinct legal systems balance autonomy and protection in family law. This work contributes to the broader discourse on the harmonisation of family law and the impact of evolving societal values on legal institutions.

 

Tom Hick, Claiming Back Anticipatory Performance after Failed Negotiations.
A Comparative Analysis of Alternatives to Precontractual Liability, pp. 683–713, https://doi.org/10.1628/rabelsZ-2025-0049

As a matter of principle, breaking-off negotiations or refusing a contract offer are lawful actions. For based on freedom of contract, each individual is free to contract, free to choose one’s counterpart and the content of the contract, and equally free not to contract. Only exceptionally can a party be held liable for breaking-off negotiations based on wrongful conduct. Hence, it appears worthwhile to look for alternative approaches to recover fruitlessly incurred costs in the context of negotiations that failed independently of any wrongful conduct. Undue payment offers precisely this possibility. Therefore, the present contribution offers an exploratory look at the chances of success of an action for undue payment to recover costs incurred in the context of failed contract negotiations in Belgium, France, the Netherlands, and Germany. The paper finds that in those cases where fruitlessly incurred costs technically qualify as a payment in the respective national legal system, the prospects for the party seeking to recover these costs are surprisingly positive.

 

Derwis Dilek, Sebastian Omlor, Dominik Skauradszun, A New Private International Law for Digital Assets, pp. 714–742, https://doi.org/10.1628/rabelsZ-2025-0053

The increasing popularity of digital assets presents significant challenges for private international law, as fundamental conflict-of-laws rules concerning proprietary issues are often absent. This article outlines a possible approach to a technologically neutral and function-based conflict-of-laws framework. Taking existing instruments into account, it examines in particular the role of party autonomy through a choice-of-law rule, as well as alternative connecting factors based on structural, functional, or factual links between digital assets and legal systems. Building on this, the article proposes a conflict-of-laws framework for determining the law applicable to proprietary issues. This framework is designed to be applicable to various types of digital assets, including those based on decentralized networks. The proposed draft rule combines an express choice-of-law option with a multi-layered system of objective connecting factors and includes supplementary mechanisms for cases where the applicable law lacks substantive provisions.

 

Claudia Mayer, Keine verfahrensrechtliche Anerkennung von beurkundeten oder registrierten familienrechtlichen Rechtsgeschäften innerhalb der EU, [No Procedural Recognition of Acts Affecting Personal Status Based on Certificates Issued by Public Agencies within the EU], pp. 743–765, https://doi.org/10.1628/rabelsZ-2025-0058

In EU law, there is a discernible tendency on the part of the EU legislature to subject legal acts to procedural recognition – including as to their substance – based on certificates of recording or other kinds of documents issued by public agencies. It has therefore already been argued in the literature that a change of method has taken place whereby the conflict-of-laws as well as substantive review in the receiving state has been replaced by a recognition system. But this position must be rejected; generally, such documents issued by public agencies, from a procedural point of view, only have formal probative value. If the validity of the underlying legal act is ultimately uncertain from the point of view of the originating state and if no (procedural) position can be established based on the state’s participation, the substance of the act may and must be re-examined by the receiving state in accordance with the law designated by a conflict of laws examination there, even at the risk of creating a limping legal relationship. The ECJ’s case law on Art. 21 of the TFEU does not alter this principle. To further prevent limping legal relationships at the European level, what is needed instead is better standardization of the conflict of laws in EU secondary law.

 

BOOK REVIEWS

This issue also contains several reviews of literature in the fields of comparative private and private international law and on related topics (pp. 766–820).

The fourth and final issue of the RabelsZ (The Rabel Journal of Comparative and International Private Law) for the year of 2025 has been published and is now available via open access and in print, featuring topics as diverse as Roman marriage and digital assets. The following titles and English abstracts of the articles have […]

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

Advocate-General Norkus’ approach in Case C-485/24 Locatrans Sarl v ES, which I reviewed here, focused on identifying a mutually agreed lex laboris and on the assistance the core DNA of the dispute, and the time that issue arose, may offer in identifying that mutual agreement.

The CJEU held last week. While it certainly may be said that the AG’s approach, in particular the reference to locus regit actum, is unorthodox and perhaps a touch convoluted, the CJEU’s approach is simply confusing as Ugljesa Grusic implies.

A reminder that the case formally concerns the Rome Convention, not the Rome Regulation however the provisions do not materially differ.

The novelty of the question in current case is the period of work to be taken into account in determining which law is applicable if the employee has worked for his or her employer in two separate stages: first, in several States and next, during the period preceding the end of the employment relationship, on a permanent basis in a single State, which parties clearly intend to be the new place of habitual performance.

The CJEU would seem to have sided with the French Government’s approach, that the most recent period of work could be taken into account in the use of the overall escape clause in Article 6, in order to determine, in the light of all of the relevant circumstances, the existence of closer connections with another country than that indicated by the other limbs of Article 6.

The CJEU as Ugljesa excellently summarises, holds that the change in habitual place of performance in its view makes the application of the ordinary test (identification of a habitual place of performance, which then leads to the lex causae) impossible; this then ordinarily triggers as a fall-back the law of the country of the engaging place of business.

However the Court then emphasises the core objective of the provisions on employment contracts: guaranteeing adequate protection for the employee, and the role of the escape clause in that respect: it must ensure that the law applied to the employment contract is the law of the country with which that contract is most closely connected (reference to CJEU Schlecker, [34]).

This then brings the last limb of Article 6(2) of the Rome Convention to the fore: where it is apparent from the circumstances as a whole that the contract of employment is more closely connected with another country, it is for the national court to disregard the connecting factors referred to in Article 6(2)(a) and (b) of the Rome Convention and to apply the law of that other country. The referring court is therefore invited seriously to consider the place where the employee has carried out his or her work on a permanent basis during the most recent period of the performance of his or her contract of employment, which place is intended to become a new habitual place of work, as the ‘proper law’ of the contract, for the Court holds, this is in line with the favor laboris objective. [61] the Court also suggests this assists with predictability however that, as Ugljesa also notes, would seem optimistic.

Like Ugljesa, I would suggest that the law of the intended new habitual place of work should apply as the objectively applicable law under Article 6(2)(a), rather than under the escape clause. This would serve party autonomy, predictability and favor laboris (seeing as the place is mutually agreed) more than the use of the escape clause, the position of which I feel is overpromoted with current judgment.

Geert.

EU Private International Law, 4th ed 2024, 3.39 ff.

Applicable law, cross-border employmentRome ConventionCJEU C‑485/24 Locatrans curia.europa.eu/juris/docume…Court does not seem to follow AG gavclaw.com/2025/09/09/l…CJEU zooms in difficulties of lex voluntatis, focuses on place of business through which employee was engagedMore soonish

— Geert Van Calster (@gavclaw.bsky.social) 2025-12-11T09:49:25.652Z

Barón Crespo / Parlement
Régime de pension complémentaire : les recours de 405 anciens députés européens ou de leurs ayants droit contre la réduction de moitié de leur pension complémentaire sont rejetés

On 19th December 2025, from 10-12 CET, the European Civil Justice Centre hosts a webinar on Data protection and collective actions from a US, European and cross-border perspective.

The fast-paced development of digital technologies, and the massive, cross-border, global dimension of the processing of personal data in the Internet, have necessitated the collective enforcement of data protection rights.

This seminar delves into developments in European collective actions, mass violations of data subjects’ rights, and the use of collective actions for the protection of supra-individual and homogeneous interests in Europe and the US, and aspects of cross-border litigation.

The focus of the seminar will the research conducted by Marina Federico (Naples University) for her book Protezione dei dati personali e tutela collettiva published in 2024.

Registration for free on Eventbrite here.

Program

10.00 Xandra Kramer (Erasmus University Rotterdam/European Civil Justice Centre) – Opening and welcome

10.05 Stefaan Voet (KU Leuven/ European Civil Justice Centre) – Introduction: Developments in European collective redress

10.25 Marina Federico (University of Naples “Parthenope”) – Data protection and collective actions. Itineraries of legal comparison in Europe and the United States

11.00 Eduardo Silva de Freitas (TMC Asser Institute/Erasmus University Rotterdam) – An Apple a day won’t keep litigation away: private international law’s new path for collective data protection claims

11.15 Discussion, moderated by Stefaan Voet