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Following a judgment by the Supreme Court of Greece in 2023, the issue of direct damages was once again brought before Areios Pagos. In a decision that diverged from the ruling of the Court of Justice of the European Union (CJEU) in the Lazar case, the Supreme Court reaffirmed its position. However, one member of the court expressed a dissenting opinion, emphasizing the obligation of national courts to submit a preliminary reference. This judge provided rationale for the Supreme Court’s departure from established case law, highlighting the importance of adhering to the CJEU’s precedents in the context of European legal integration.

 

The facts

In the case under consideration, the plaintiffs, Greek nationals residing in Greece, filed a lawsuit in the Athens Court of First Instance following a fatal traffic accident that occurred in Finland in 2016. The deceased, also a Greek national and resident of Greece, suffered fatal injuries when a German driver, operating a vehicle registered in Finland, collided with him. The insurance company representing the German driver acknowledged its civil liability.

First instance proceedings. The plaintiffs, who included the deceased’s parents and grandparents, sought recognition of their right to compensation for emotional distress stemming from the incident. The Athens Court of First Instance partially accepted their claim under Greek law.

Court of Appeal Proceedings

Following the initial ruling, the defendant, i.e., the German insurance company, lodged an appeal before the Athens Court of Appeal [CoA], contending that Finnish law should govern the case, since the accident occurred in Finland. However, the Court of Appeal determined that Greek law was applicable in accordance with Article 4(1) of Regulation (EC) No. 864/2007 (Rome II). This decision was based on the fact that both the deceased and the plaintiffs were Greek nationals and residents of Greece, thereby qualifying under Article 4(1), which stipulates the governing law as the law of the country in which the damage (here, emotional distress) occurs.

The Court of Appeal concluded that the relatives of the deceased possessed a direct and personal claim against the perpetrator, as the emotional injury constituted a primary and immediate violation of their personal rights. Consequently, the jurisdiction of the court was established based on the residence of the plaintiffs, where they endured emotional distress due to the deceased’s death.

Importantly, the nature of the emotional distress was distinguished as a direct consequence of the wrongful act, independent from the primary injury suffered by the deceased. The court considered that the location of such emotional distress is defined not by where the relatives learned of the death, but rather by their primary residence, where they experience ongoing suffering over time.

Finally, under Article 932 of the Greek Civil Code, financial compensation for emotional distress is expressly recognized for relatives of victims in cases involving wrongful death.

Supreme Court Ruling

The Hellenic Supreme Court upheld the Co A decision, affirming that Greek law applied in this case, and that the CoA accurately interpreted Article 4(1) of the Rome II Regulation. The Supreme Court ruled that the concept of direct damage encompasses the emotional anguish experienced by the relatives, thereby warranting compensation and establishing jurisdiction based on their residence.

In its decision, the majority of the Supreme Court members underscored that a contrary interpretation, which would limit jurisdiction solely to the country where the accident occurred, would conflict with established interpretations by the Court of Justice of the European Union (CJEU). The majority opinion emphasized the importance of recognizing the locality of emotional distress as a legitimate basis for asserting jurisdiction and claims for compensation.

Minority Opinion

One member of the Court expressed the following opinion: According to Article 267 TFEU, the courts of the Member States in which a question of interpretation of primary or secondary law of the European Union arises in a pending case are allowed or even required, when it comes to a court whose decisions are not subject to appeal under the internal law of the relevant Member State, to refer the matter to the CJEU for a preliminary ruling. Thus, with the institution of preliminary reference, a procedure is established between national courts and the CJ EU, with the main goal of ensuring the uniformity of EU law, which also serves the principle of equal treatment of the involved persons, since this principle is surely threatened if the same provisions are applied differently across the Member States of the EU.

The submission of a preliminary question is mandatory when the relevant conditions set by the CJEU are met, which are mainly condensed in the principle of the so-called acte clair. If the CJEU has ruled on the interpretation of provisions of EU law, the national court, particularly the court whose decisions are not subject to appeal, is obliged to comply with it and, if it disagrees, must submit a new preliminary question providing new elements, developing its arguments, and supporting a different interpretation.

In addition, the same member of the Supreme Court dissented, arguing that Article 4(1) of the Rome II Regulation characterizes the damages related to the death of the victim as indirect consequences of the accident when the plaintiffs reside in a different Member State than where the accident occurred. The dissenting opinion cited EU case law (CJEU, case C-350/14, Lazar) to assert that the applicable law in such cases would be the law of Finland, where the direct damage occurred, rather than Greek law.

The minority contended that, as per Finnish law, monetary compensation for emotional distress in cases of wrongful death is only available under specific circumstances, which may unduly limit the recovery of damages for the relatives in question. Accordingly, it proposed the need for a preliminary reference to the CJEU to clarify the legal framework surrounding compensation claims for emotional distress and the corresponding entitlements in light of the applicable law.

Conclusion

The Hellenic Supreme Court reinforced the principle that the emotional distress suffered by relatives of a deceased individual due to wrongful death is direct damage under the Rome II Regulation, warranting compensation. This case highlights the nuanced interplay between jurisdiction, applicable law, and the evolving interpretation of emotional distress in the context of cross-border torts within the European Union.

The Department of International Law (Secretariat for Legal Affairs) of the Organization of American States (OAS) has just published in essay form the lectures delivered during the 49th Course on International Law, which was held on 5 -16 August 2024. For more information, click here.

The book features the following piece: The 50th anniversary of the first Inter-American specialized conference on private international law. The future of private international law in the Americas by Dante Mauricio Negro Alvarado (in English, p. 295-335). This is a must-read for Private International Law academics and lawyers from the region and beyond.

As indicated in the publication, Dante Mauricio Negro Alvarado graduated from the Pontificia Universidad Católica del Perú, where he also pursued postgraduate studies in International Economic Law. He holds a master’s degree in International Law and Human Rights from the University of Notre Dame, Indiana. He has worked at the OAS  (Washington, D.C.) since 1995 and served as Director of the Department of International Law of that Organization since 2006. He is Technical Secretary of the Inter-American Juridical Committee.

Alame & Ors v Shell PLC & Anor [2025] EWHC 1539 (KB) is a milestone in business and human rights /environmental claims litigation, particularly as it pertains to legacy pollution. I reported on earlier developments in the case here, with further links in that post to yet other earlier judgments.

The Alame claim is also known as the Bille and Ogale group claim litigation. It is not to be confused with the ‘Bodo’ claim, in which hearings were concluded at the London courts earlier in June.

Of note is first of all that the judge’s findings are all on preliminary issues (‘PI’) of law. They are not on matters of fact. For instance, and with great importance viz the issue of ‘legacy’ pollution, the judge’s finding [77] that

The experts agree that where trespass is relied on, and as trespass does not require damage to be proved, a new cause of action will arise each day that oil remains on a claimant’s land.

and [180] that

Common law claims for damage caused by oil spills from non-pipeline assets may be brought in negligence, nuisance, Rylands v Fletcher and trespass, in each case depending upon the particular facts.

do not imply that the judge has held that Shell or any of the other defendants have trespassed by not cleaning up the relevant legacy pollution. It simply means that she has found there is such possibility, depending on the facts. Of course the finding is still hugely relevant, seeing also the energy (pun unintended) Shell had invested in fighting such a finding. One of the interesting questions imo for future reference, is how trespass as a promising private law claim to address legacy pollution, functions in the event of divestment by the polluter (such as here: the sale of Shell Nigeria to Renaissance).

The judgment is lengthy but very well structured and Leigh Day, solicitors for claimants, have good summary of the main issues here.

In this post, noblesse oblige, I focus on one specific private international law issue, namely question

PI 5 (1)  Insofar as a party alleges in the context of a claim under section 11 of the OPA that an oil spill was caused by Third Party Interference: What is the applicable law governing the burden and standard of proof?

This is a Rome II question.  [141]

The parties are agreed that the applicable law governing the burden and standard of proof is a matter of English private international law. As to that:

(a) Insofar as the event giving rise to damage occurred on or after 11 January 2009, the choice of law is governed by the Rome II Regulation (“the Regulation”). The parties agree that under Article 22 of the Regulation burden of proof is governed by the law of the claim, here Nigerian law. There is a dispute between them as to what law governs the standard of proof.

(b) Insofar as the event giving rise to damage occurred before 11 January 2009, choice of law is governed by Part III of the Private International Law (Miscellaneous Provisions) Act 1995 (“the 1995 Act”). Both sides agree that, under English choice of law principles, rules of evidence are a matter for the law of the forum, covering both burden and standard of proof: Dicey, Morris and Collins on the Conflict of Laws, 16th Edn. Para 4-034.

[143] explains the relevance:

If the standard of proof is governed by Nigerian law, then both experts agree that the consistent practice of the Nigerian courts is to apply the criminal standard of proof (i.e. beyond reasonable doubt), whether the allegation is made against a party or a nonparty. Under English law, the standard of proof is the civil standard i.e. balance of probabilities.

[144] Therefore the single contentious point for determination under this PI is whether the standard of proof in relation to post-11 January 2009 events, where choice of law is covered by the Regulation, is a matter governed by English law as the law of the forum or by Nigerian law as the law of the claim.

My most recent comment on the issue features in my review of Quilombola v Norsk Hydro at the Dutch courts – yet see also other posts using the tag ‘evidence and procedure’.

The one case on the issue discussed in current judgment is Marshall v MIB [2015] EWHC 3421 (QB) which I review here. Counsel for claimant suggested

that the approach of Dingemans J in Marshall was wrong in principle and should not be followed. She argued that Article 1(3) of the Regulation is concerned with the manner in which matters are proved rather than the standard to which they must be proved, submitting that the degree to which the court must be satisfied of a relevant matter (ie standard of proof) is an indivisible part of the burden of proof and should be regarded as part of the same rule of law under Article 22, applying the law of the claim. Alternatively, if the analysis in Marshall is accepted and standard of proof is to be determined under English common law, she suggested that the court should adopt a flexible approach – referring to the observations of Andrew Smith J in Fiona Trust v Privalov [2010] EWHC 3199 – and apply Nigerian law to both burden and standard of proof where a party raises an allegation of loss caused by [third party interference].

As I flagged in my post on Marshall, I am not convinced by standard of proof following the evidence and procedure carve-out. The precise delineation of burden of proof under Rome II could do with more authority.

I imagine permission to appeal may be sought on a number of issues. Trial on the substance is scheduled for 2027.

Geert.

EU Private International Law, 4th ed, 2024, 4.82 ff.

 

On 17 April 2025, the Court of Appeal of England and Wales delivered a judgment in Hipgnosis SFH 1 Ltd v Manilow ([2025] EWCA Civ 486; Sir Julian Flax C, with LJJ Phillips and Snowden agreeing) on the interpretation and effect of an asymmetric jurisdiction clause. Facts The parties had entered into a contract containing […]

Commission / Espagne (Participations indirectes)
Aide d'État
La Cour confirme l’annulation de la décision de la Commission déclarant illicite le régime fiscal espagnol de déduction des prises de participations indirectes dans des sociétés étrangères

SALUS
Rapprochement des législations
Une tisane médicinale qualifiée de médicament traditionnel à base de plantes ne peut, en principe, être commercialisée avec le logo bio

EVH / Commission
Concurrence
La Cour de justice confirme, comme l’a fait auparavant le Tribunal, l’approbation, par la Commission, de l’achat de certains actifs de production d’E.ON par RWE

The University of Aberdeen, in collaboration with the University of Osijek and the Royal Society of Edinburgh, will host a two-day webinar on Cross-Border Protection of Children under the 1996 Hague Child Protection Convention: Practical Perspectives from Contracting States. The webinar will take place online on 30 June and 1 July 2025. The webinar will […]

Post prepared by Eduardo Silva de Freitas, PhD researcher Erasmus University Rotterdam and junior researcher at the Asser Institute

 

As part of its 60th anniversary celebrations, the T.M.C. Asser Institute invites abstracts for the panel “Emerging Voices in Private International Law”, to be held on 24 October 2025 in The Hague, at the conference Adapting Private International Law in an Era of Uncertainty.

The panel will feature two early-career scholars (PhD candidates or postdoctoral researchers) presenting original work in the field. Selected participants will also contribute to a forthcoming volume in the Short Studies in Private International Law series.

To apply, please submit a 400-word abstract and brief personal details by 15 August 2025 (24:00 CET) to: e.silva.de.freitas@asser.nl

Full call for abstracts: https://www.asser.nl/media/797989/call-for-abstracts_pil_asser.pdf

Comité interprofessionnel du vin de Champagne et INAO / EUIPO - Nero Lifestyle (NERO CHAMPAGNE)
NERO CHAMPAGNE ne peut pas être enregistré en tant que marque de l’Union européenne pour des vins d’appellation d’origine protégée « Champagne »

Ryanair / Commission (Condor II ; COVID-19)
Aide d'État
Le Tribunal rejette le recours de Ryanair contre l’approbation par la Commission de l’aide Covid-19 de l’Allemagne au profit de Condor pour l’année 2020

The Law Quarterly Review has published an interesting article by Richard Garnett and Ying Khai Liew (Professors at Melbourne Law School), titled Trusts Jurisdiction Clauses: An Analysis. The article can be found in (2025) 141 LQR 357-375 and on SSRN. While jurisdiction clauses, or choice of court agreements, are increasingly utilised in trust deeds, the […]

GR REAL
La protection des consommateurs et l’exigence d’une protection juridictionnelle effective requièrent qu’ils puissent, sous certaines conditions, contester la légalité du transfert de propriété à un tiers à l’issue d’une exécution forcée d’une hypothèque sur leur logement familial

Written by Hadrien Pauchard (assistant researcher and doctoral student at Sciences Po Law School)

The first issue of the Revue Critique de droit international privé of 2025 has just been released. It gathers six contributions honouring Albert Armin Ehrenzweig and his legacy, as well as seven case notes and numerous book reviews.

The doctrinal part of the volume is devoted to the proceedings of the Albert Armin Ehrenzweig Conference organized in June 2024 at the University of Vienna, fifty years after the passing away of the great author. The contributions commemorate both the man and the scientist, testifying to the relevance of Albert A. Ehrenzweig’s scholarship to contemporary private international law. They are published in French in the printed version of the Revue (also available online here), and will be available shortly in English (here).

The conference opens with Prof. Matthias Lehmann (University of Vienna) personal tribute to Albert A Ehrenzweig – A Giant of the Conflict of Laws. It recalls the dramatic journey through which Professor Ehrenzweig built his legacy as a “communicator between different cultures”:

With Albert Ehrenzweig, Austria lost one of its undoubtably greatest legal talents. But one’s loss was another’s gain, that of the US. This simple zero sum is worth emphasising at a time when the hatred against migrants is rising yet again on both sides of the Atlantic. Ehrenzweig brought to the US plenty of ideas from his native Austria. Among them is the abstract consideration of legal problems and the strictly logical approach to their solution, which is particularly helpful in areas such as conflicts of jurisdiction or conflicts of laws. He also brought with him a great deal of interest and knowledge in the area of psychology, which was en vogue in his days in Vienna.

In the following contribution, Prof. Florian Heindler (Sigmund Freud Privat University, Vienna) reflects on two major lines of the dedicatee’s scholarship, namely the Comparative Method and the Integration of Conflict of Law’s with Jurisdiction. The article is introduced as follows:

Ehrenzweig’s work deserves attention –primarily because of its topicality– beyond its historical-bibliographical interest and its link the question of remedy for past injustices. Two methodological cornerstones of his work on the conflict of law must be emphasised. Firstly, transatlantic dialogue: Ehrenzweig frequently sought to align “European learning and experience” with the “pragmatic approach” and “technique of recording daily experiences”. He was endowed with the particular ability to address discussions in the US and in Europe so as to bridge the gaps between European and US private international law, thus bringing the highly divided US and European legal systems closer together. The second theme is linked to the integrated thinking of Ehrenzweig which shaped his theories in the area of conflict of laws. Indeed, Ehrenzweig was also famous tort lawyer, where he demonstrated out-of-the-box thinking, also characteristic of his way of conducting legal research. Illustrating this talent, most prominently, is his publication on “a proper law in a proper forum” (“jurisdictional approach”).

In the third contribution on Albert Ehrenzweig, Berkeley, and Un-stating Choice of Law, Prof. Andrew D. Bradt (University of California, Berkeley School of Law) pays tribute to Professor Ehrenzweig’s influence on Conflict of Laws in the United States. The abstract reads as follows:

Like his fellow realists, Ehrenzweig eschewed metaphysical dogma, viewing choice of law in a more “pluralistic” way, as a matter for the law of the forum, so that applying a different state’s law to a case is less a choice of foreign law than an expression of forum law and policy. In this respect, his campaign against Restatements of choice of law voices concerns that remain pertinent as the American Law Institute enters its second decade of its efforts to create a Third Restatement.

In the fourth article, Prof. Chris Tomale (University of Vienna) calls for a contemporary reappropriation of the dedicatee’s writings on Datum and Substance – Albert Ehrenzweig’s moral data approach. The contribution is presented as follows:

The changing, almost fluid nature of Ehrenzweig’s legal scholarship between three modalities of claims about the law has opened up his work to much undeserved criticism, which calls for a new and instructive look at the very epistemological substance of his findings. Moreover, the contemporary re-politization of private law could also be a call for its re-moralization, raising exactly the same moral data questions that were on Ehrenzweig’s mind. In this respect, too, Ehrenzweig’s moral data approach offers a helpful heuristic to describe and understand these developments.

Then, bridging the gaps between two continents and two intellectual traditions, Prof. Jeremy Heymann (Université Jean Moulin Lyon 3) delivers though-provoking reflections on Ehrenzweig’s Legacy in European Private International Law. The abstract read as follows:

All too often reduced by his detractors, at least over the European side of the Atlantic, to his plea for the « proper law of the forum » – and all too often misread –, Ehrenzweig’s thinking calls to be reconsidered. His very distinctive unilateralist approach to the conflict of laws is well in tune with the method posited, in numerous judgments, by the Court of Justice of the European Union and more generally by the EU legislator.

The tribute concludes with Dr. David Messner-Kreuzbauer’s (University of Graz) last thinkings on The Argument from “Substantive Evolution” as a Legacy of Albert Armin Ehrenzweig’s Private International Law. Continuities From Vienna to Berkeley. The article’s abstract reads as follows:

Albert Armin Ehrenzweig has been portrayed as a “European Legal Realist”, and is remembered for the fact-oriented data approach as well as a preference for the lex fori. This article presents a slightly different Ehrenzweig: a Viennese judge and academic who went to the United States formed by strong ideas about substantive (tort) law, by the jurisprudence of interests and with a keen sense for moral psychology. His thoughts may have great value in navigating a contemporary task: bringing together contemporary private international law with the evolution of substantive (tort) law in recent decades.

The full table of contents is available here.

Previous issues of the Revue Critique (from 2010) are available on Cairn.

According to Article 4(1) of the Agreement between the European Community and the Kingdom of Denmark on the service of judicial and extrajudicial documents in civil or commercial matters (the ‘Agreement’), Denmark shall not take part in the adoption of opinions by the Committee referred to in Article 26 of Regulation (EU) 2020/1784 on the […]

On 11 and 12 June 2025, the Nordic Group on Private International Law (NGPIL) held a conference in Stockholm. NGPIL is an informal group consisting of lawyers interested in the field of private international law. Founded in Uppsala in 2002, the group enhances the intelligibility of the Scandinavian languages as well as the common legal […]

Last summer, Andrew Dickinson (Professor of the Conflict of Laws, University of Oxford, and former editor of ConflictofLaws.net) delivered a special course at the summer course of the Hague Academy of International Law entitled ‘Natural Justice in Recognition and Enforcement of Foreign Judgments’. It has now been published as Volume 446 of the Recueil des cours / Collected Courses.

The blurb reads as follows:

This special course assesses the utility of ideas of ‘natural law’ and ‘natural justice’ as tools to explain, rationalise and develop the rules governing the recognition and enforcement of foreign judgments currently applied by the world’s legal orders.

After introducing the topic, the first part of the course consider how influential 17th and 18th century accounts of the law of nature sought to account for the relations existing between all human beings, as well as the creation of political societies with law-making powers, the global ordering of those societies and the role of adjudication as a means of resolving disputes within and among them. This provides the historical and intellectual background for what follows.

The principal part of the course considers how writers on the conflict of laws in this period drew upon and utilised these ideas, as the rules that we apply today to regulate foreign judgments began to take shape. This leads to a study of the further evolution of the legal landscape in the 19th century, highlighting the use of natural law reasoning by judges and commentators to explain and justify the effectiveness of individual exercises of adjudicatory authority beyond their original domains, as well as the later rejection of natural law thinking in favour of models centred on ideas of sovereignty and territoriality, which continue to dominate today.

Having completed this historical survey, the course examines the specific legacy of natural law reasoning in the common law world, involving the use of principles of ‘natural justice’ to deny recognition of unjust foreign judgments, as well as the counterparts of these principles in other legal systems and international treaties.

Drawing on the preceding material, the concluding chapter considers the case for renaturalising the law in this area, and the implications of following this path.

More information on the book can be found here.

It is available to subscribers to the Recueil des cours here.

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its XLVIII Seminar entitled “Reflections regarding the Inter-American system in the 50th Anniversary of the CIDIP-I and the latest developments of Private International Law in Mexico” (Reflexiones en torno al sistema interamericano en el 50 Aniversario de la CIDIP-I y la actualidad del Derecho Internacional Privado en México) from 22 to 24 October 2025. The venue of the seminar will be the Universidad Autónoma de Querétaro (Querétaro, Mexico).

Potential speakers are invited to submit a paper in Spanish, English or Portuguese by 22 August 2025. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services, but some exceptions may be made by the organisers upon request for presentations in English and Portuguese. For more information on the requirements, click here.

 

The XVIII conference of ASADIP, the American Association of Private International Law, will take place from 7 to 9 August 2025 in Rio de Janeiro, under the titled Regional imaginaries, global resonance: Inter-American Private International Law and the world stage. It will bring together 78 panelists from 20 countries. The conference features, among other things, an […]

All episodes of Series 3 of the University of East Anglia Law School Podcast are now out. Hosted by Rishi Gulati, they cover the following topics:

• The Future of International Investment Law (Muthucumarasamy Sornarajah)
• Double Standards in International Law (Patryk Labuda)
• The launch of the Elgar Companion to UNIDROIT (Edward Elgar, 2024)
• The Rise of International Commercial Courts (Giesela Rühl)
• The exercise of self-defence in outer space (Chris O’Meara)
• Greenland, Self-Determination, and the Geopolitical Contest (Maria Ackrén).

All  episodes are available at SoundCloud, Apple Podcasts, and Spotify