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Philippine Blajan, who is a professor at the University of Versailles Saint Quentin, has published La combinaison des autonomies en droit international privé des contrats. Étude des interactions entre le choix de juridiction et le choix de loi (The Combination of Party Autonomies in the Private International Law of Contracts. A study of the interactions between […]

On 18 February 2026, a Corrigendum to Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) has been published in the Official Journal of the European Union. The Corrigendum […]

Written by Dr Priskila Pratita Penasthika, Assistant Professor, Faculty of Law, Universitas Indonesia

INTRODUCTION

The Indonesian Personal Data Protection Law, Law Number 27 of 2022 (Indonesian PDP Law), came into effect on 17 October 2022. Before its enactment, data protection rules in Indonesia were fragmented across different sector-specific laws and regulations. The Indonesian PDP Law aims to unify these laws and regulations, providing greater clarity and ensuring consistent personal data protection across all sectors in the country. The Indonesian PDP Law sets out normative provisions on personal data protection; however, detailed, practical rules have yet to be specified in the implementing regulations. As of now, the drafting of these implementing regulations is still underway.

Many of the fundamental elements of the Indonesian PDP Law, including definitions of covered data and entities, lawful grounds, processing obligations, accountability measures, and relationships between data controllers and processors, are modelled after the European Union’s General Data Protection Regulation (GDPR). Nonetheless, several key provisions are tailored specifically to the Indonesian context. For instance, the Indonesian PDP Law has broad extraterritorial reach, which shall apply to entities insofar as their personal data processing activities have legal implications within Indonesia or pertain to an Indonesian national data subject outside Indonesian jurisdiction.

To date, there have been five decisions by the Constitutional Court of the Republic of Indonesia (Mahkamah Konstitusi Republik Indonesia) concerning the Indonesian Personal Data Protection Law. Briefly, the Indonesian Constitutional Court functions as one of Indonesia’s apex judicial authorities, alongside the Supreme Court. Its primary jurisdiction involves the constitutional review of enacted laws (undang-undang) in Indonesia to assess their conformity with the 1945 Indonesian Constitution (as lastly amended in 2002), thereby safeguarding the constitutional rights therein. Its decisions are final, legally binding, and possess immediate legal effect upon issuance, with no provisions for appeal or annulment by any other institutional body.

This piece will focus on the most recent ruling by the Constitutional Court issued on 19 January 2026 regarding the Indonesian PDP Law, namely Case Number 137/PUU-XXIII/2025, as it pertains to matters within private international law.

FACTS

The Petitioner mainly requests a constitutional review of Article 56 of the Indonesian PDP Law, which specifies the requirements for cross-border personal data transfers. Article 56 delineates a tiered set of prerequisites for such transfers. A personal data controller responsible for transmitting personal data abroad (data exporter) must verify that the recipient country offers an adequate or higher level of personal data protection than that provided by the Indonesian PDP Law. If this requirement is not met, the data exporter must ensure that sufficient and binding data protections are in place in the recipient country. If neither condition is satisfied, the data exporter is obliged to obtain consent from the data subject prior to transferring personal data abroad. Furthermore, the forthcoming implementing regulations are expected to provide further details on the specific requirements for cross-border data transfers.

The petition was initiated with the briefing announcement issued by the White House on 22 July 2025 concerning the Framework for Negotiating a Reciprocal Trade Agreement between Indonesia and the United States of America (Indonesia-USA Reciprocal Trade Agreement Negotiation Framework). As part of this framework, Indonesia has committed to establishing legal certainty regarding the ability to transfer personal data outside its borders to the United States.

The Petitioner argued that the Indonesia-USA Reciprocal Trade Agreement Negotiation Framework has led to a key interpretation of Article 56 of the Indonesian PDP Law concerning the transfer of citizens’ personal data beyond Indonesian borders. The Petitioner maintained that, under a strict interpretive approach, the PDP Law allows data controllers to assess the adequacy requirement independently, without parliamentary oversight. This could potentially weaken democratic accountability and expose personal data vulnerable to misuse. Additionally, the Petitioner emphasised that such commitments should require approval from the House of Representatives, as they directly impact national sovereignty and the protection of citizens.

The foundation of the Petitioner’s petition is based on Article 28G, paragraph (1) of the 1945 Indonesian Constitution, which protects citizens’ rights to their dignity, family, honour, and property, as well as the right to be free from threats to their fundamental rights. Additionally, the Petitioner referred to Article 11 of the 1945 Indonesian Constitution, which confers authority on the House of Representatives and the President to conclude international agreements.

Therefore, the Petitioner requests that the Constitutional Court interpret the provisions of Article 56 of the Indonesian PDP Law to mean that transferring personal data to jurisdictions such as the United States should occur only if there is an international agreement approved by the Indonesian House of Representatives. Moreover, transfers to countries considered to lack adequate personal data protection standards should take place only with the consent of the data subjects, after informing them of the risks involved in the cross-border transfers of their personal data.

CONSTITUTIONAL COURT DECISION

The Constitutional Court rejected all of the Petitioner’s petition and arguments. According to the Court, the cross-border transfer of personal data constitutes part of the administrative and technical measures carried out by the executive branch, rather than an agreement between nations that creates rights and obligations in the domains of politics, defence, or sovereignty. Based on this reasoning, the Court affirmed that there is no constitutional obligation to involve the Indonesian House of Representatives in any cross-border data transfer process, including in determining the adequacy decision regarding such a personal data transfer.

Regarding the adequacy decision, the Court held that the personal data controller (data exporter) shall undertake technical verification procedures to ascertain whether the recipient country of the personal data transfer maintains data protection standards that are adequate or even higher than those provided in the Indonesian PDP Law. Furthermore, the Court pointed out that cross-border personal data transfers do not rely solely on the personal data controller to ensure adequacy or higher protection standards in the recipient country. Instead, it also necessitates the existence and active involvement of the Personal Data Protection Authority (PDPA), as prescribed in Articles 58-61 of the Indonesian PDP Law. The PDPA is tasked with overseeing, evaluating, and implementing technical policy measures to ensure compliance with requirements for cross-border personal data transfers. Nevertheless, it is important to note that such authority has yet to be established.

 REMARKS

Despite the Constitutional Court’s rejection of the petition, Case Number 137/PUU-XXIII/2025 brings to light persistent concerns regarding the Indonesian PDP Law, particularly its provisions on cross-border personal data transfers. These issues call for further discussion and highlight the pressing need to pass the implementing regulations and establish the PDPA.

First, clarification is required regarding the party responsible for conducting cross-border transfers of personal data. Article 56 of the Indonesian PDP Law exclusively employs the term ‘personal data controller’ (pengendali data pribadi) in the context of cross-border data transfers, which seems to imply that only personal data controllers are authorised to carry out such transfers.

Second, it is necessary to delineate which countries are recognised as having adequate or higher levels of personal data protection. In this context, Article 60(f) of the Indonesian PDP Law provides that the PDPA is empowered to assess whether the requirements for cross-border personal data transfers are satisfied. The significant role of the PDPA in cross-border personal data transfer is also emphasised by the Constitutional Court Judges in Case Number 137/PUU-XXIII/2025. Since the PDPA has not yet been established or designated to date, this situation underscores the urgent need to set up or appoint such an authority.

Third, the forthcoming implementing regulations of the Indonesian PDP Law are expected to clarify issues surrounding cross-border personal data transfers, including the incorporation of whitelists and blacklists of specific jurisdictions, standardised contractual language, and specific data processing activities such as pseudonymisation and encryption. It is also presumed that the personal data controller and the forthcoming PDPA will be required to report to the Indonesian Ministry of Communication and Digital regarding cross-border transfers of personal data.

Fourth, as set out at the outset of this piece, the Indonesian PDP Law has an extensive extraterritorial scope. In the event of a personal data breach involving cross-border transfer of personal data, any individuals, corporations, public entities, and international organisations—irrespective of their origin or residence—whether functioning as personal data controllers or processors, may be considered potential defendants for violations that affect the rights of an Indonesian data subject. Referring to Article 2 of the Indonesian PDP Law, this applicability is contingent upon the occurrence of their misconduct (1) within the jurisdiction of Indonesia or (2) outside of Indonesia, provided that such misconduct results in legal consequences (a) within the Indonesian jurisdiction or (b) impacting an Indonesian personal data subject outside of Indonesian territory.

The subsequent issue concerns the court’s jurisdiction. As no cross-border data protection litigation has occurred in Indonesia to date, the court’s position in this matter remains indeterminate. Nevertheless, Indonesian courts are notorious for their indifference and insularity when addressing foreign-related issues. Furthermore, Indonesian civil procedural law does not specify provisions regarding parallel litigation. Consequently, in case of parallel proceedings concerning a cross-border data transfer dispute, it is likely that the Indonesian court would exercise jurisdiction and proceed with the legal proceeding in Indonesia, notwithstanding the existence of an ongoing legal proceeding involving the same dispute and parties in a foreign court.

If proceedings are conducted in a foreign court, the complexities of the issues may increase. Indonesia maintains a stringent stance that a foreign judgment is not enforceable unless it pertains to damages arising from marine salvage. Any foreign, other than those on damages resulting from marine salvage, must undergo re-examination by an Indonesian court. In light of this stance, it is apparent that Indonesian courts would not recognise or enforce foreign judgments concerning cross-border personal data transfer disputes and would require such disputes to be relitigated before an Indonesian court.

Practical challenges also include the complexities of seizing assets or digital evidence located in foreign jurisdictions, given that Indonesia has not yet acceded to the HCCH 1970 Evidence Convention.

Further details concerning the Indonesian PDP Law and its private international law aspects are available in Priskila Pratita Penasthika, “Chapter 12 – Indonesia” in Adrian Mak, Ching Him Ho, and Anselmo Reyes (eds.), Privacy and Personal Data Protection Law in Asia (Hart Publishing, 12 December 2024).

 

 

 

 

 

 

 

 

 

 

 

 

On 24 February 2026, the Council of the European Union approved the position of the European Parliament at first reading (reported on this blog) on the proposal for a directive amending, among other legislative measures, Directive (EU) 2024/1760 on corporate sustainability due diligence (CSDDD). The directive has thereby been formally adopted (the final text can […]

The author of this post is Katja Karjalainen, who is a professor at University of Lapland, Finland. In its decision of 4 December 2025 (KKO:2025:102), the Finnish Supreme Court clarified that a parental agreement on intended habitual residence is irrelevant under the 1980 Hague Child Abduction Convention (the 1980 Hague Convention) and that a child […]

Advocate General Spielmann’s opinion in case C-876/24, Vueling Airlines (Juridiction compétente en cas de contrat en ligne de transport aérien national) will be published on Thursday 26th. The Court of First Instance No 1, Fuenlabrada, Spain, has referred the following questions to the Court of Justice: First. Must Article 3(1) of Regulation (EC) No 2027/97 [of […]

On Friday 29 May 2026 in Groningen, the Netherlands, Dr. Benedikt Schmitz from the University of Groningen is hosting a larger symposium on the topic of “Digitalisation of Justice: Perspectives from Germany and the Netherlands”

Theme

This event brings together leading and upcoming scholars to explore how digital transformation – from AI in adjudication to fully online proceedings – is reshaping our legal systems, while raising important questions about access to justice, procedural fairness, and the rule of law.

Programme

• A keynote by Dr. Benjamin Grimm, Minister of Justice and for Digitalisation (Federal State of Brandenburg, Germany)
• Expert panels on:
  • Private International Law (Prof. Dr. Susanne Lilian Gössl, LL.M. (Tulane); Prof. Dr. Frederick Rieländer, LL.M. (Cambridge); Asst.-Prof. Dr. Kirsten Henckel; Asst.-Prof. Dr. Benedikt Schmitz)
  • Civil Procedure (Prof. Dr. Gralf-Peter Calliess; Prof. Dr. Pauline Ernste; Patrick Koerts)
  • Criminal Procedure (Prof. Dr. Hannah Ofterdinger; Assoc.-Prof. Dr. Dorris de Vocht; Assoc.-Prof. Dr. Laura Peters; Asst.-Prof. Dr. Glenn Thodé)
  • Administrative Law (Prof. Dr. Sarah Rachut; Prof. Dr. Sofia Ranchordas; Asst.-Prof. Dr. Ida Varošanec)
• Elevator pitches by emerging scholars presenting cutting-edge research (Serap Bilgin, Noelle Funk, Sabrina Pölle, Constanze Rothermel, Anne Spijkstra)
• Plenty of time for discussion and networking, including coffee breaks, lunch, poster sessions, and an optional conference dinner

The full programme can be found on the conference website: https://weakerparties.eu/events/digitalisation-of-justice/

Time and Venue

• 29 May 2026, 8.30-17.10 CET
• Venue: House of Connections, Grote Markt 21, Groningen, the Netherlands

Registration

• This event is strictly in-person only.
• Attendance is free of charge.
• Register here: https://weakerparties.eu/events/digitalisation-of-justice/

On 25 February 2026, the Catholic University of the Sacred Heart in Milan will host a seminar in English titled Recognition of U.S. Securities Class Actions in Europe: Compatibility of Opt-Out Claims with the Right to a Fair Trial. The main speaker will be Meltem Ece Oba (Koç University, Istanbul), while Marco Lamandini (University of […]

En présence d’un ensemble de pratiques commerciales déloyales similaires, une législation nationale peut-elle retenir une qualification d’infraction unique, ce qui conduit à l’infliction d’une seule amende dont le montant est plafonné ? Telle est la question préjudicielle à laquelle la Cour de justice devait répondre à la suite de sa saisine par une juridiction autrichienne. La décision rendue à cette occasion est particulièrement intéressante, puisqu’elle permet de revenir sur l’articulation des droits européen et nationaux. On y apprend que, si une autorité nationale peut librement qualifier plusieurs pratiques similaires d’infraction unique, c’est à la condition que cette qualification, par les conséquences qu’elle entraîne, n’entrave pas la répression des fautes lucratives commises par l’infracteur.

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La rédaction de Dalloz actualité fait une petite pause la semaine du 23 février.

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The latest issue of the International and Comparative Law Quarterly (Volume 74, Issue 4) features one article on private international law. Adeline Chong, ‘Salami-Slicing’ and Issue Estoppel: Foreign Decisions on the Governing Law, 875-903 Whether an issue estoppel arises over foreign decisions on the governing law of the claim has not been directly considered by an English […]

The team of editors behind the EAPIL blog has just become larger. Konrad Duden, a professor of civil law, private international law and comparative law at the University of Hamburg, and Caterina Benini, a post-doctoral researcher and adjunct professor at the Catholic University of the Sacred Heart in Milan, have joined the blog as permanent […]

A new issue of ZEuP – Zeitschrift für Europäisches Privatrecht is now available and includes contributions on EU private law, comparative law and legal history, legal unification, private international law, and individual European private law regimes. The full table of content can be accessed here: https://rsw.beck.de/zeitschriften/zeup.

The following contributions might be of particular interest for the readers of this blog:

Ignacio Tirado: UNIDROIT on the Occasion of Its (first) 100 Years

In the editorial, UNIDROIT on the Occasion of Its (First) 100 Years, Ignacio Tirado, Secretary General of UNIDROIT, traces the organisation’s origins and evolution, reflects on how it has navigated a turbulent century, and offers thoughts on how its centenary should be celebrated and what lies ahead for the Institute.

Wolfgang Wurmnest und Marie-Sophie Pillin: Der Data Act: Ein punktuelles europäisches Vertragsrecht für den Zugang und die Nutzung von Daten

Wolfgang Wurmnest and Marie-Sophie Pillin on Der Data Act: Ein punktuelles europäisches Vertragsrecht für den Zugang und die Nutzung von Daten highlights key private law provisions of the European Data Act. It analyzes the relationship between data controllers, users, and recipients, which in future will primarily be governed by contracts. In addition, the paper examines the new European rules on unfair contract terms.

Christian Kohler, Marlene Brosch, Jean-Christophe Puffer-Mariette: Unionsrecht und Privatrecht: Zur Rechtsprechung des EuGH im Jahre 2024

In Unionsrecht und Privatrecht: Zur Rechtsprechung des EuGH im Jahre 2024, Christian Kohler, Marlene Brosch and Jean-Christophe Puffer-Mariette offer an overview of numerous judgments of the ECJ in 2024 that are relevant to private law. Particularly noteworthy are decisions on the effects of Union citizenship and the enforcement of the General Data Protection Regulation as well as numerous judgments on consumer protection directives. A number of issues relating to the prohibition of discrimination and market freedoms have also been decided; judgments on copyright are equally worth mentioning.

Susanne Gössl: Das „Anerkennungsprinzip“ und das Internationale Recht der Geschlechtszugehörigkeit nach „Mirin“

Susanne Gössl on Das „Anerkennungsprinzip“ und das Internationale Recht der Geschlechtszugehörigkeit nach „Mirin“ comments on the recent ECJ decision of 4 October 2024, C-4/23 – Mirin regarding gender identity. The note explores how the Court strengthens the portability of a lawfully acquired gender identity within the EU, the limits of public policy objection, the treatment of non-binary gender entries, and the broader consequences of Mirin for the acceptance of a personal status in EU private international law. Finally, it assesses the repercussions of the judgment for German law.

For those interested in the EU’s sustainability framework, the article by Moritz Böbel, Ronjini Ray, and Marc-Philippe Weller on Die EU-Entwaldungsverordnung und ihre Auswirkungen auf den Globalen Süden am Beispiel von Indien provides an analysis of the EU’s deforestation regulation and its impacts on the Global South, focusing on India.

This post was written by Jerca Kramberger Škerl, Professor of Private International Law and Civil Procedure at the University of Ljubljana, Faculty of Law, and Working Group member for Slovenia in the EAPIL Working Group on Anti-SLAPP Directive Transpositions. On 28 January, the Slovenian Parliament adopted the Act on Protective Measures concerning Strategic Lawsuits against […]

The thirty-ninth annual survey on choice of law in the American courts is now available on SSRN. The survey covers significant cases decided in 2025 on choice of law, party autonomy, extraterritoriality, international human rights, foreign sovereign immunity, adjudicative jurisdiction, and the recognition and enforcement of foreign judgments.

The cases discussed in this year’s survey address (among other things) the situs of cryptocurrency, exploding batteries in e-cigarettes, the sale of an antique military tank, the validity of an Urfi marriage ceremony, whether the Hague Service Convention prohibits email service on defendants in China, the enforcement of a Philippine forfeiture judgment, and claims of expropriation by German authorities during the Soviet occupation after World War II.

This annual survey was admirably maintained by Symeon Symeonides for three decades. The present authors are pleased to have extended this tradition.

Yesterday, the Project Report of the ELI Project “Enhancing Child Protection: Private International Law on Filiation and the European Commission’s Proposal COM/2022/695 final”

It contains constructive amendments to the original Commission’s Parenthood Proposal and intends to bring it more in line with the acquis and general considerations of EU PIL. Furthermore, it puts the best interest of the child in the focus of the analysis.

For a short background: In December 2022, the EU Commission published the Proposal for a Regulation on Private International Law Rules Relating to Parenthood (COM (2022) 695 fin). An analysis of the original proposal can be found, e.g., here.

Shortly afterwards, at the European Law Institute (ELI), a project group was established (led by Dr. Ilaria Pretelli and me). The following report, which proposes amendments to the initial Commission’s Proposal, was approved by the ELI Council in September 2025 and the ELI Membership in January 2026. The report was published yesterday and is available online here.

The Report examines the Commission Proposal and its critical role in advancing fundamental rights within the EU. While preserving the Commission’s Proposal’s core vision and framework, this analysis recommends strategic refinements that strengthen alignment with the existing EU acquis, foster deeper European integration, and enhance the protection of children’s fundamental rights. In addition, it expands upon the Proposal’s initial emphasis on the EU Strategies for children’s rights and LGBTIQA+ equality by incorporating a comprehensive women’s rights perspective.

If you are interested in the Report or the Proposal and like academic discussions about the subject, there will be a webinar on March 12, 2026, from 12:30-14:00 CET.

The author of this post is Caterina Benini, post-doctoral researcher and adjunct professor at the Catholic University of the Sacred Heart in Milan. The recognition and enforcement of foreign punitive damages judgments in Italy is no longer considered anathema. In 2017, overturning its previous opposition, the Joint Sections of the Italian Supreme Court held that […]

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By Ross Pey, Western University, Canada

1. Introduction

In Case C-86/23 E.N.I. and Y.K.I. v HUK-COBURG-Allgemeine Versicherung AG II (‘HUK-COBURG II’), the principal issue that arose was whether a Bulgarian compensation provision may be interpreted as having mandatory effect. In suggesting that it does not, the Court required the facts to have sufficiently close links with the forum. (Hereinafter the ‘sufficient connexion test’) Ostensibly, a freestanding sufficient connexion test could be viewed as a disguised jurisdictional control of the forum rather than part of a mandatory law analysis. In doing so, parallels to renvoi and forum non conveniens are drawn.

2. Facts

The daughter of the Bulgarian claimants died in a road traffic accident in Germany. The person responsible was insured by the defendant. The claimants commenced a claim in Bulgaria against the defendant for non-material damages suffered for the loss of their daughter. (HUK-COBURG II at [16]–[17])

The case was dismissed on appeal. As German law governed the claim under the Rome II Regulation, the claimants ‘had not established that the mental pain and suffering sustained had caused pathological harm’ required under German law. (HUK-COBURG II at [20], [24], [51])

Crucially, the Court also said that Bulgarian law, in particular Article 52 Zakon za zadalzheniyata i dogovorite (‘ZZD’), did not apply to the case as a mandatory overriding rule under Article 16 Rome II Regulation. This issue as to whether the ZZD applied as a mandatory overriding rule was appealed to the Varhoven kasatsionen sad (Supreme Court of Cassation), which then referred the question to the ECJ.

3. The CJEU’s Reasoning

In essence, the ECJ said that although it is for the member state court to assess whether Article 52 ZZD was a mandatory overriding rule, it strongly suggested that it did not. (HUK-COBURG II at [47]-[54]). In the operative part, the Court said that that the Rome II Regulation must be interpreted as meaning that a forum law ‘cannot be regarded as an ‘overriding mandatory provision’, within the meaning of that article, unless, where the legal situation in question has sufficiently close links with the Member State of the forum, the court before which the case has been brought finds, on the basis of a detailed analysis of the wording, general scheme, objectives and the context in which that national provision was adopted [.]’ (Emphasis mine)

4. Issues with Linking Sufficient Connexion and Mandatory Law

When faced with an allegedly mandatory provision, HUK-COBURG II requires a three-step analysis: (1) identify whether the law has a mandatory effect, (2) identify whether the facts have a sufficiently close connexion with the forum, and (3) determine whether the facts fall under the statute. One reading of the sufficient connexion test in this context is that it is intrinsic to the concept of mandatory law and is read in by the ECJ into the requirements of Article 16 Rome II Regulation. [1] However, there are two issues with this view.

Firstly, it may be that a sufficient territorial connexion forms part of the reason why a forum statute is a mandatory statute and is relevant to determining whether a mandatory rule applies to the facts.[2] But linking territorial connexion and mandatory effect is problematic as they are analytically distinct. In Soldiers, Sailors, Airmen and Families Association v Allgemeines Krankenhaus Viersen GmbH [2022] UKSC 29, Lord Llyod-Jones warned that there is a risk of ‘confusion’ if both territoriality and mandatory effect are conflated. The former relates to the intrusion into the territorial affairs of another state, while the latter relates to ‘whether the public policy of the forum displaces the more modest presumption that statutes only apply if they form part of the applicable law.’[3]

Secondly, one might argue that sufficient territorial connexion is required for a forum rule to be deemed a mandatory rule. But the difficulty here is why a territorial connexion with the forum matters at all. The point of mandatory overriding rules is that such rules are so important to the forum that they justify the departure from the law chosen by default choice of law rules. Viewed this way, it is difficult to see why the facts must be sufficiently connected with the forum for a mandatory law to apply. Forum mandatory overriding rules operate precisely because they are reflections of fundamental values of the forum. Requiring a territorial connexion could dilute this.

This is not to say that the Bulgarian law ought to be viewed as mandatory law. Rather, from an interpretative standpoint, grounding a rejection simply because the Bulgarian law fails to satisfy a sufficient connexion test is at least open to question.

5. A Disguised Jurisdiction Analysis?

From the above discussion, there exist questions regarding the role of a freestanding connexion test with the concept of overriding mandatory law. It is, however, plausible to read the judgment differently, where the sufficient connexion test is a jurisdictional analysis of forum choice disguised as a choice of law analysis.

Firstly, this interpretation is not precluded by the judgment itself. In the operative part, the ECJ stated that the ‘legal situation in question has sufficiently close links with the Member State of the forum’ before the forum court seised conducts a mandatory law analysis. Further, in the Court’s own analysis of what constitutes mandatory law from paragraphs 37 to 54, the Court did not place reliance on the lack of a sufficient territorial connexion. It was a factor in its own right (paragraphs 32 to 36) but does not seem necessary to the mandatory law analysis and the suggestion that Art 52 ZZD does not have a mandatory effect.

Secondly, both the ECJ judgment and the Advocate General’s opinion suggest this. The Court observed at paragraph 36 that although the claim was brought by the parents, who are domiciled in Bulgaria, the accident took place in Germany and was insured by a German insurer. The daughter who died and the person who caused the accident were Bulgarians, but are now residents in Germany. To a common lawyer, this discussion bears a striking resemblance to Step 1 of the forum non conveniens analysis in Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada) [1987] AC 460, where the court asks which jurisdiction has the most real and substantial connexion with the dispute (ie. the ‘natural forum’). The jurisdictional impetus is fortified by the Advocate General’s opinion, which at paragraph 53 explicitly states that ‘the requirement of a close link helps to prevent forum shopping.’

This jurisprudential instinct to discuss the sufficiency of connexion is not unwarranted. Under the Brussels I bis Regulation, jurisdiction is allocated by a series of brightline rules, normally based on the domicile of the defendant (Article 4), and at times the claimant (for instance, under Article 11). Crucially, in Case C-281/02 Andrew Owusu v N. B. Jackson, the ECJ erred on the side of certainty in rejecting the doctrine of forum non conveniens. But in doing so, it deprived the courts of a flexible tool to control jurisdiction, making an indirect control via choice of law rules understandable.[4]

In fact, controlling jurisdiction via choice of law is not new. Briggs observes in 1998 that the doctrine of renvoi has, in part, served such a function in English law historically.[5] In this vein, the doctrine of forum non conveniens was part of the ‘tailor-made rules against forum shopping which went straight to the heart of the problem, and did not seek to operate by remote control.’[6]

If so, HUK-COBURG II is another example of the interrelatedness of the conflict of laws. When jurisdictional rules are understood rigidly, the pressure points move to other areas, including the choice of law.

[1] Eg. Dominika Moravcová, ‘Navigating the nexus: The Doctrinal Significance of close connection in the Enforcement of (not only) overriding mandatory norms’ (2025)

[2] Eg. Hague-Visby Rules scheduled to the Carriage of Goods by Sea Act 1971.

[3] Soldiers, Sailors, Airmen and Families Association v Allgemeines Krankenhaus Viersen GmbH [2022] UKSC 29 [36].

[4] The irony here is that the ECJ has now read in a sufficient connexion test into both Rome I and II Regulations, a move which it declined to do in the Brussels I bis Regulation.

[5] Adrian Briggs, ‘In Praise and Defence of Renvoi’ (1998) 47(4) The International and Comparative Law Quarterly 877.

[6] Adrian Briggs, ‘In Praise and Defence of Renvoi’ (1998) 47(4) The International and Comparative Law Quarterly 877, 879.

 

Where does time go…(those who follow me on Linked-in know where it went in January).

I flagged Richard de la Tour AG’s Opinion in C‑791/24 TERVE  Production spol. s r. o. v Intesa Sanpaolo Holding International SA when it came out at the time. I am sorry I am only reviewng it now.

E.ON Czech Holding of course features prominently.

The case concerns a dispute re the protection of minority shareholders which did not vote for the delisting of a company (VÚB) in which they hold shares. Slovak law provides that, when such a delisting is decided upon, a takeover bid must be made and that, after the expiry of that bid, the company, or its majority shareholder which made the bid on its behalf, has the right to require the delisting of the remaining shares. Conversely, after the expiry of that period, the minority shareholders may require the purchase of their shares.

Intesa of Luxembourg initiated a share takeover bid, loco VÚB, and, at the end of the three-month validity period, exercised its right of squeeze-out, which resulted in the transfer of the remaining shares into its name. At the same time, TERVE, a minority shareholder opposed to the sale, to exercise its right of sell-out, sent Intesa a draft share purchase agreement, which Intesa did not approve. Intesa justified its refusal on the ground that, since TERVE had not approved its own squeeze-out proposal within the mandatory three-month period, TERVE’s remaining shares had been transferred to Intensa and TERVE therefore no longer had the standing to bring proceedings as a shareholder and had forfeited the opportunity to accept the squeeze-out offer.

The case concerns two types of claims:

The first cause of action seeks to substitute the majority shareholder’s approval of a draft share purchase agreement, presented by the minority shareholders, with a court ruling.

The AG opines this falls within Article 7(1) Brussels Ia’s forum contractus – not A7(2) forum delicti.

The question aims essentially to determine whether the fact that Intesa freely assumed the obligation to make a mandatory takeover bid to purchase
shares in lieu of the issuer of the shares (VÚB, a. s.), in a situation where that
voluntary assumption of the obligation to make a bid preceded and was a
condition for the respondent’s subsequent exercise of the right of squeeze-out, may at the same time be considered as a voluntary assumption of an obligation vis-à-vis Terve (and possibly also vis-à-vis the other shareholders of
VÚB, a. s, who did not vote in favour of delisting their shares) to purchase
shares pursuant to Paragraph 118j of the Slovak Securities Law – a contract whose forum contractus is Slovakia.

Intesa argues there is neither a contract nor A7(2) jurisdiction, the latter it argues requiring ‘civil liability’.

The AG refers to the usual suspects such as CJEU Feniks to come to a wide notion of contract for the purposes of Article 7(1), and dismisses the dense statutory context of corporate take-overs and squeeze-out as being determinant.

His reference (41) in particular to Intesa’s voluntary launch of the take-over bid instead of the corporation itself is confusing (and may indeed lead to the forum shopping consequences he signals. What he really seems to consider crucial (41) is that VÚB’s relationship with its shareholders is contractual in nature. That is the kind of test which I called the ‘ancestry’ test in particular when reviewing Sharpston AG’s Opinion in Ergo.

 

Unfortunately the AG’s answer to the forum contractus question means he does not entertain the forum delicti referral.

 

The other cause of action relates to a claim viz the invalidity of a resolution of a general meeting which decided to transfer the shares of the minority shareholders following the exercise of the right of squeeze-out by the majority shareholder. The response with respect to that claim determines the standing of those minority shareholders to bring proceedings, and the AG opines it is caught by Article 24(2)’s exclusive jurisdictional rule.

(47) the AG first suggests (as does the Commission seemingly) that this question is relevant only if, under Slovak law, the court hearing an application to substitute a majority shareholder’s approval of a sell-out proposal with a court ruling, can rule on the validity of a decision of a general meeting without the company whose decision is being challenged being a party to the proceedings. I assume this is the case for otherwise the decision may be impossible to be imposed upon that company.

(55-57) are the core paras (with reference before and in the paras to the classics such as BVG, Hassett and Doherty, Kerr: In the paras below, I have deleted the references

55.      Consequently, it is necessary to examine whether, in the context of a legal action seeking to substitute the approval of the sell-out proposal with a court ruling, the preliminary issue of the validity of the decision of the general meeting to transfer the remaining shares to the person exercising the right of squeeze-out can constitute the principal subject matter of the dispute.

56.      TERVE’s standing to bring proceedings depends directly on whether or not the resolution of the second general meeting is valid since, if that resolution is invalid, the transfer of the shares to Intesa is called into question and TERVE is still a shareholder of VÚB. However, if that resolution is valid, TERVE has lost its status of shareholder and can no longer exercise its right of sell-out.

57.      I therefore consider that the validity of the resolution of the second general meeting is an essential premiss for TERVE’s action to substitute Intesa’s approval of its draft agreement to purchase the remaining shares with a court ruling.  It is actually that resolution which establishes the right of sell-out for the other shareholders. The situation in the present case is not one in which the alleged invalidity of the decisions of the company’s organs is ancillary to the principal subject matter of the action. Accordingly, the Slovak courts have jurisdiction on the basis of the exclusive jurisdiction provided for in Article 24(2) of Regulation No 1215/2012.

(60) in its own  delisting proposal, Intesa referred to Slovak courts’ jurisdiction: hence being sued there can hardly have been unexpected.

I do hope the CJEU wil take the opportunity of the forum contractus question to refine its formula on Article 7(1).

Geert.

EU Private International Law, 4th ed. 2024, 2.192 ff, 2.405 ff.

 

 

 

 

 

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