Droit international général

Augustin Gridel (University of Nancy, France) has posted Registered Shares in Private International Law -A French and European Perspective on SSRN. The abstract reads: The private international law rules governing the ownership of shares have long rested on the modalities of their transfer, which afforded considerable significance to the form they take (registered or bearer). […]

Keio University Law School in Tokyo (KLS) will be hosting a seminar entitled “Keio University Law School Book Series Seminar:  Hart’s Studies in Private International Law – Asia” at Room 2B12 in South Building, Keio University Mita Campus, on Friday, 25 September 2026, from 3 to 4pm.

As the readers of ConflictofLaws.net are well aware, Studies in Private International Law – Asia is a forum for discussion and analysis of private international law issues in Asian jurisdictions, which is published under Hart’s celebrated series Studies in Private International Law.  This seminar aims to provide an overview of the book series to the audience. Legal practitioners, government officials, academics and students who are interested in Asian law, private international law (broadly defined) and/or law and development are welcome to join.

The seminar will be followed by a networking tea, during which interested participants may explore future publication opportunities in the Studies in Private International Law – Asia series and other Hart Publishing outlets with Justice Anselmo Reyes (General Editor of Studies in Private International Law – Asia and International Judge at Singapore International Commercial Court) and Dr Roberta Bassi (Publisher at Hart Publishing).

There is no registration fee for this event, but registration is required for catering purposes. Visit here to register.

 

Programme

3.00pm Opening remarks by Professor Hiroshi MATSUO (Vice Dean and Director of Global LLM Program at Keio University Law School) 3.10pm Book series introduction by Justice Anselmo Reyes and

Dr Roberta Bassi 3.30pm Experience sharing by Dr Nobumichi TERAMURA (Associate Professor at Keio University Law School) 3.40pm Q&A 4pm End of the seminar and networking tea

SPIL-A series seminar Keio

By Faraz Firouzi Mandomi

Iran’s use of property measures against critics abroad is no longer hypothetical. In March 2026, Iran’s Prosecutor-General’s Office warned Iranians living abroad that support for, or cooperation with, states regarded by Iran as hostile could result in confiscation of their property. Reuters reported the warning on the basis of statements carried by Iranian state media.

The policy has since acquired a more concrete form. In May 2026, Amnesty International reported judicial orders to identify, freeze and seize bank accounts, properties and other assets belonging to persons accused of cooperating with “enemy states” or “hostile media”. Iranian authorities had reportedly announced measures affecting more than 750 persons inside and outside Iran, including journalists living abroad.

Administrative measures adopted in 2026 have also brought security screening into the use of consular powers of attorney. A circular concerning power of attorney issued abroad required inquiries where such instruments were presented in Iran and contemplated prosecutorial action where the grantor was identified as an opponent of the Islamic Republic abroad.

For present purposes, this situation can be described as political immobilization. Ownership may formally remain intact, while access to the legal mechanisms required to sell, mortgage, partition or administer the property is conditioned by political or security considerations.

The immediate concern is one of human rights. A separate question arises in private international law once the consequences of such measures are relied upon before courts outside Iran.

Property and the Lex Situs

The conventional starting point is the lex rei sitae. Article 966 of the Iranian Civil Code provides that possession, ownership and other rights over movable and immovable property are governed by the law of the country in which the property is situated. Proprietary questions concerning land situated in Iran therefore fall, in principle, under Iranian law.

That rule does not dispose of every dispute connected with Iranian property. A transaction involving land in Iran may also generate questions of contractual liability, restitution, succession, matrimonial property or insolvency before a foreign court. Those questions require separate characterization and may be governed by a law other than the law governing title itself.

Suppose, for example, that an Iranian resident abroad contracts to sell property in Tehran but cannot complete the transaction because the authorities prevent the use of a power of attorney on security grounds. Proceedings may subsequently be brought abroad for repayment or damages. The foreign court would first have to determine the nature of the claim and the law applicable to it. An Iranian administrative instruction addressed to prosecutors, consular authorities, notaries or registries does not automatically govern contractual liability in another legal system.

An additional distinction is important. The Iranian restriction might appear before the foreign court simply as a fact explaining why performance could not occur. In that situation, public policy cannot make the factual impediment disappear. A different problem arises where a party asks the forum to attribute legal effect to the measure itself, whether through the applicable foreign law, a claimed proprietary consequence, or recognition of an Iranian decision.

Human Rights and Public Policy

Human rights do not replace ordinary conflicts rules, nor do they ordinarily operate as connecting factors permitting a court to disregard foreign law merely because its application produces an objectionable result.

Their influence is nevertheless visible within established mechanisms of private international law. A useful contemporary restatement appears in the Institut de Droit international’s 2021 Resolution on Human Rights and Private International Law. Article 8 provides that, in assessing whether the application of foreign law designated by conflicts rules complies with international public policy, due consideration must be given to human rights, notably the principle of non-discrimination. Public policy therefore remains an exceptional control mechanism, not a competing choice-of-law rule. It may permit the forum to refuse effect to a consequence of otherwise applicable foreign law that is incompatible with its fundamental principles.

The distinction between territorial effectiveness and legal effect abroad is familiar in conflicts jurisprudence. In Luther v Sagor, English courts accepted the proprietary consequences of Soviet confiscatory legislation concerning property situated within Soviet territory. Oppenheimer v Cattermole demonstrated that such deference was not unlimited where foreign legislation was fundamentally incompatible with public policy. In Kuwait Airways v Iraqi Airways, the House of Lords likewise began from ordinary choice-of-law principles concerning proprietary rights but refused effect to Iraqi confiscatory legislation on public-policy grounds. Belhaj v Straw subsequently discussed Oppenheimer and Kuwait Airways within this public-policy line of authority.

The comparison is doctrinal, not historical. The Iranian measures are not equated with Soviet nationalization, Nazi persecution or Iraqi confiscation. These authorities instead illustrate that the territorial operation of foreign law and the legal consequences accorded to it by another legal system are separate questions.

Iranian law will ordinarily govern proprietary rights in assets situated in Iran. The private international law issue arises only when a consequence of the Iranian measure is invoked before a foreign court. The forum must first characterize the issue, determine the applicable law and establish the scope of the relevant foreign rule. Only then can public policy become relevant. Where the consequence for which legal effect is sought rests on discrimination based on political opinion or opposition activity, human-rights considerations may properly enter that assessment.

Political immobilization thus becomes a private international law problem when a measure effective within Iran is invoked as the basis for legal consequences outside Iran.

The second edition of Conflict of Laws Within the UK by Kirsty J Hood, Senator, College of Justice, Scotland, has been published by Oxford University Press. The blurb reads: The operation of conflict of law rules within the UK has changed drastically since the first edition of Conflict of Laws Within the UK published in […]

The Faculty of Law at Lund University is inviting applications for one or two doctoral positions. The call is directed to four specific fields of law: fiscal law, private international law, constitutional law and procedural law. Of particular interest to the readers of this blog is, of course, the possibility to pursue a doctoral project […]

The Hague Academy of International Law Summer Course provides an opportunity each year to engage with some of the most significant questions currently shaping private international law, bringing together established scholars and emerging researchers from around the world. As part of the 2026 Session, noted on this blog, the editors of the EAPIL blog invited […]

by Sibusiso Mabaso, Lecturer in Private International Law, University of South Africa

For many years, South African private international law relied on the lex domicilii matrimonii as connecting factor to determine the legal system applicable to the proprietary consequences of a marriage. The lex domicilii matrimonii is interpreted as the husband’s domicile at the time of entering into the marriage. This rule was firmly entrenched in South African law since it was formally adopted in Frankel’s Estate v The Master & Another 1950(1) SA 220 (A) and reinforced in subsequent decisions, the latest being LE v LA 2024 (5) SA 539 (GJ). Despite the courts’ reliance on this rule, it became increasingly evident that it is not compatible with South Africa’s Constitutional commitment to equality, dignity and non-discrimination (Constitution of the Republic of South Africa, 1996). The Westen Cape High Court has finally addressed this discriminatory connecting factor in a judgment delivered on 24 June 2026 in Pringle v Minister of Justice and Constitutional Development and Others (2468 / 2024) [2026] ZAWCHC 343.

The challenge to the lex domicilii matrimonii emerged from a divorce dispute between Nina Pringle (applicant) and Ian Norman Pringle (third respondent), both of whom, at the time of their marriage, were domiciled outside South Africa. The marriage between the parties also took place outside South Africa, therefore South African private international law rules came into play in the case. The applicant challenged the application of the lex domicilii matrimonii rule on the basis that it automatically preferred the husband’s domicile at the time of the marriage, which has the result that the rule discriminates against women and fails to accommodate same-sex marriages.

The applicant argued that the lex domicilii matrimonii is inconsistent with the Constitution in that it discriminated between spouses on the on grounds of sex, gender and sexual orientation. Historically, the rule developed from patriarchal assumptions that the husband was the head of the family and that the wife’s identity followed his (para 60 of the case). Although such assumptions show the legacy of earlier legal systems, they have long since been rejected by South African constitutional jurisprudence. What is also interesting is that, while the wife’s domicile of dependence was abolished through the Domicile Act 3 of 1992, the lex domicilii matrimonii continued to determine the proprietary consequences of marriage according to the husband’s domicile. The applicant therefore challenged validity of the lex domicilii matrimonii, that this rule no longer serves any legitimate purpose within a constitutional democracy founded on equality and human dignity (para 3.1 of the Pringle case).

The court concurred with the applicant’s argument. It held that the lex domicilii matrimonii rule unfairly discriminates based on sex, gender and sexual orientation, which renders the rule inconsistent with the Constitution (paras 70 & 72). The court acknowledged that there exists no rational justification to continue employing the husband’s domicile when South African law has already abolished the idea that a married woman’s legal identity is dependent upon her husband (para 64). The court further acknowledged that the rule failed to accommodate same-sex marriages (para 67). In arriving at this conclusion, the court recognised that the common law must evolve to reflect the values enshrined in the Constitution, specifically where private international law rules perpetuate historical inequalities.

The court’s declaration that the rule is unconstitutional and invalid in terms of s 172(1)(a) of the Constitution, means that it had to pronounce a just and equitable replacement (s 172(1)(b)) that will determine the legal system applicable to the proprietary consequences of marriages with an international element. In this vein, the court used its powers to develop the common-law by drawing inspiration from international instruments such as the 1978 Hague Convention on the Law Applicable to Matrimonial Property Regimes and the European Union’s Matrimonial Property Regulation 2016/1103 (paras 85 – 93). The court developed a new hierarchical applicable law framework. The new rule prioritises party autonomy by enabling spouses to choose the legal system that will govern the proprietary consequences of their marriage, this is subject to the chosen system having a substantial link to either or both spouses (para 2.1. of the order). Should there be no choice made by the spouses or their choice has no substantial connection to them, the applicable law is determined successively by the parties’ common domicile, common habitual residence, common nationality and finally, the legal system with the closest connection to the spouses (para 2.5 of the order). The court also considered the South African Law Reform Commission’s (SALRC) Project 100E, Review of Aspects of Matrimonial Property Law, Discussion Paper 160, that considered the constitutionality of the lex domicilii matrimonii and any suitable replacement. The court departed from the SALRC Discussion Paper 160 in respect of the choice of the applicable law. The court pronounced that there should be a substantial connection between the parties and the designated legal system (para 95).

The new common-law rule developed by the court has retrospective effect; subject to certain exceptions. Firstly, where spouses concluded an antenuptial contract choosing the law governing the proprietary consequences of their marriage, the new rule will not apply for two years from the date of the order, allowing the parties time to amend their contract if necessary (para 3.1 of the order). Secondly, in the absence of a choice of law by the parties, the new rule shall not apply if it would lead to substantial prejudice (para 3.2 of the order). Thirdly, the order will not disturb vested rights or invalidate transactions and decisions already taken under the previous lex domicilii matrimonii rule (para 3.3 of the order). Finally, the new rule will not apply to marriages already dissolved by death or divorce before the date of the order (para 3.4 of the order).

The court’s declaration of invalidity and replacement of the lex domicilii matrimonii rule marks a significant development in South African private international law. Unlike the previous rule, which by default preferred the husband’s domicile, the new framework recognises the equal status of spouses while advancing legal certainty and flexibility in international marriages. The court’s adoption of connecting factors internationally applied and recognised as best practice, advances harmonisation between South African private international law and other jurisdictions. It also promotes predictability for parties involved in cross-border relationships.

The judgement is widely welcomed, given the fact that many experts in the field have long criticised and called for the rule to be replaced. The courts did not wait for legislative intervention to align the South African law with internationally accepted principles. This indicates that the courts are prepared to ensure that common-law rules align with the constitution. Some aspects still need to be explored, namely the practical application of the concept of “closest connection” and the extent to which courts will interpret the requirement of a “substantial connection” when spouses exercise their right to choose a legal system. Another aspect that would need to be explored is the court’s order that the new common-law rule shall not apply to existing marriages if it would lead to substantial prejudice. The meaning of substantial prejudice will require interpretation from our courts. These issues will undoubtedly be addressed through future scholarship and litigation.

Nevertheless, Pringle marks the demise of the lex domicilii matrimonii which was rooted in outdated patriarchal assumptions and confirms that South African private international law must develop in line with the Constitution.

This post was contributed by Dr. Ivo Hlaváček. The case law on cross-border portability of personal status has developed quickly. Coman, Pancharevo, K.S., Mirin and now Cupriak-Trojan share a structural feature that has drawn less attention than their outcomes. In each, the status was acquired while the Union citizen was genuinely residing in another Member […]

Alex Mills (University College London) has posted Private International Law and Property in Outer Space: ‘Finders, Keepers’ or ‘the Province of All Mankind’? on SSRN. The abstract reads: This chapter considers the possible role of private international law with respect to property in outer space, with a focus on space mining activities. The law which […]

Giesela Rühl (Humboldt University of Berlin) has posted Regulating Contracts across Borders: The Role of Private International Law on SSRN. The abstract reads: Private international law – or conflict of laws, as it is commonly referred to in the United States – deals with the co-existence of different legal systems and determines which state’s law applies […]

Breakdown of the Rules-Based International Order
– What Role for Private International Law?

Following the first Private International Law Festival in 2022 (conference report),  on 24-25 September 2026, the University of Edinburgh Law School and the Max Planck Institute for Comparative and International Private Law, generously supported by the Lindemann Foundation, will cohost the second Private International Law Festival at Edinburgh University’s splendid Playfair Library in Edinburgh. Two days of conflict of laws, plus a Ceilidh!

The program is here, a flyer is here. As to the Ceilidh, no prior expertise is expected, but you can take a look here.

Registration is open until August 28, please register here.

 

 

Private International Law and Children’s Rights Law by Tine Van Hof, Senior Researcher and Guest Lecturer at the University of Antwerp, Belgium, has been published by Bloomsbury Publishing. The blurb reads: How do private international law and children’s rights law interact-and conflict-in international child abduction cases? This book examines the relationship between two legal fields […]

Thalia Kruger, University of Antwerp & Senior Research Associate, University of Johannesburg

This piece is based on a paper that I presented at the World Congress on Adults Protection, held in Amsterdam from 8 to 10 July 2026. It is still work in progress.

The World Conference focused on capacity rather than vulnerability and incapacity of Adults. This choice of theme resulted in much discussion on support for the exercise of capacity. Supported decision-making rather than replaced decision-making for an incapacitated person poses challenges for Private International Law, especially of the Von Savigny tradition. Our approach is to first characterise and then find which laws we can apply. But it is exactly this characterisation that is becoming blurry: to be fully in compliance with the UN Convention on the Rights of Persons with Disabilities people should be allowed to make decisions, i.e. conclude contracts with the help of others. There should be no boxes of capacitated and incapacitated persons. No longer can only the former conclude contracts, while the latter have to be represented by guardians or other persons with a representation function. In Adult law some concepts are phasing out, while others are being reinterpreted by legislators and courts.

Below, after briefly explaining the move towards supported decision-making in substantive family law and human rights law, I turn to the available legal framework for cross-border cases, then to the difficult question of characterisation, and lastly to cross-border recognition.

The move towards supported decision-making

The civil laws of various countries are adapting to be in conformity with the UN Convention on the Rights of Persons with Disabilities (UNCRPD), which recognises the legal capacity of persons with disabilities on an equal basis with others (Art. 12,2). It also imposes an obligation on States to take appropriate measures to support persons with disabilities to exercise their legal capacity. The Convention was ratified by all EU Member States, and confirmed by the European Union. It further states the full and effective participation and inclusion in society as a general principle (Art. 3), and calls on States to ensure effective access to justice for persons with disabilities, equal to other (Art. 13). And importantly from a private international law perspective, the Convention requires States to recognise the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others (Art. 18).

Germany and Ireland have strongly amended their civil laws to adapt to this. Other EU Member States are still in the process of doing so. It was clear at the conference that the law needs to make a paradigm shift. It is not easy for legislators and even legal scholars, to let go of the concept of “incapacity” and to accept that people may need support without being represented in their legal acts. This reality requires different thinking about personal law as well as contract law, and the intersection of both.

Legal framework for cross-border cases

In private international law, the main international source for Adult law is the Hague Adults Convention of 2000. This Convention was avant-garde when it was concluded. It dealt with the issue of Adults even before the UNCRPD came about. It provided a framework to ensure cross-border continuity of protection of adults, as well as for the legal acts they and/or their representatives performed. The Convention uses open-ended and respectful terminology. Yet, the Convention also suffers from its stagnant nature (as Conventions do – set in stone the moment they are adopted). The Convention was inspired by the Hague Child Protection Convention 1996, which is also a good Convention, ensuring the continuity of child protection and parental responsibility. This has the unfortunate result that the Convention uses concepts like incapacity, protection, guardianship, curatorship, placement, and representation. Yet, as explained in the previous section, the UNCRPD is requiring a shift away from such ideas.

To my mind the Convention, as a living instrument, can still stand in the emerging legal landscape. This requires a purpose-driven and context-sensitive interpretation of its provisions. Such reinterpretation will no-doubt soon reach domestic courts, and is already being discussed. The first Special Commission on this Convention held by the Hague Conference in November 2022, acknowledged that the terms ‘guardianship’ and ‘curatorship’ no longer exist in some legal systems, that have moved to supported decision-making. However, they concluded to keep the terms in the Convention, and not amend the Convention at that time (para 69). They also discussed the possible reinterpretation of ‘powers of representation’ (in Arts 15 to 17) to include advance unilateral acts or expressions of decisions, for instance on health care (paras 23 to 26). They concluded that courts could undertake such appreciation on a case-by-case basis. Thus, the door remains open for an interpretation fit for new legal and societal contexts.

The Hague Adults Convention is currently in force in sixteen States (thirteen EU Member States, the other three neighbouring States to the EU). In addition, five States (all of them EU States) signed the Convention without following up by a ratification yet.

After two resolutions by the European Parliament (in 2008 and in 2017), the European Commission in 2023 published two proposals on Adults. One proposal is for a Council Decision to authorise Member States that have not already done so to ratify the 2000 Hague Convention. The other is to complement the Convention in the EU by a Regulation, which enhances or slightly adapt some rules. The Commission’s approach can thus be described as a ‘Hague+’ one, similar to the approaches taken in parental responsibility and maintenance. Under the latest agreement between the Council and the Parliament (May 2026) the Regulation would place emphasis on ‘support’. The legislators do not seem to modify the Hague Convention’s private international law rules, but would include ‘support’ when reference is made to representation.

How should we then characterise?

The shift is monumental. For us to rethink private international law in this sphere, it is helpful to think in terms of two different scenarios that can arise when an Adult in need of assistance concludes a contract. The first is representation of the adult by another person. This other person is the one negotiating, deciding and contracting. The Adult involved stays in the shadow . The other is where the Adult is involved in the preparation, negotiation and conclusion of the contract. The Adult is the one signing, but with the help of a support person. This construction is different from current (traditional) contract law. Some argue that it does not comply with the standards of legal certainty.

The characterisation would be contract law to check the validity of the contract, i.e. to verify whether there was really a meeting of the minds (consensus) between the persons involved. If legal systems recognise the capacity of every person (or like the German system reduces capacity in only a very limited number of situations), then the characterisation stays within contract law. Thus it stops at the question of validity and consensus. In legal systems that still have the notion of incapacity, the characterisation for this question switches to the appropriate connecting factor under the law of persons (often the law of the nationality).

The Hague Adults Convention refers to ‘measures’ to protect an adult. These measures would however, in an ideal world, only involve the appointment of support persons for the Adult. Such appointment can happen under the jurisdiction bases and applicable law rules of the Convention. The Convention also foresees the possibility for Adults to appoint the representative(s) of their choice (Arts 15 to 17). The same private international law would apply for the appointment by Adults of support persons.

Recognition across borders

Getting to recognition, a court order or authentic instrument appointing a support person for an Adult would benefit from the recognition regime of the Hague Convention and the proposed Regulation. If a support person was appointed in an informal way, their role would not be up for recognition (in the private international law sense), but would turn on the law applicable to the legal relation. As explained above, that will to a large extent by contract law, in the absence of incapacity.

There is still much to think through. Private international law will probably be in flux for some time still, while domestic laws are being amended.

Thalia Kruger, University of Antwerp & Senior Research Associate, University of Johannesburg

This piece is based on a paper that I presented at the World Congress on Adults Protection, held in Amsterdam from 8 to 10 July 2026. It is still work in progress.

The World Conference focused on capacity rather than vulnerability and incapacity of Adults. This choice of theme resulted in much discussion on support for the exercise of capacity. Supported decision-making rather than replaced decision-making for an incapacitated person poses challenges for Private International Law, especially of the Von Savigny tradition. Our approach is to first characterise and then find which laws we can apply. But it is exactly this characterisation that is becoming blurry: to be fully in compliance with the UN Convention on the Rights of Persons with Disabilities people should be allowed to make decisions, i.e. conclude contracts with the help of others. There should be no boxes of capacitated and incapacitated persons. No longer can only the former conclude contracts, while the latter have to be represented by guardians or other persons with a representation function. In Adult law some concepts are phasing out, while others are being reinterpreted by legislators and courts.

Below, after briefly explaining the move towards supported decision-making in substantive family law and human rights law, I turn to the available legal framework for cross-border cases, then to the difficult question of characterisation, and lastly to cross-border recognition.

The move towards supported decision-making

The civil laws of various countries are adapting to be in conformity with the UN Convention on the Rights of Persons with Disabilities (UNCRPD), which recognises the legal capacity of persons with disabilities on an equal basis with others (Art. 12,2). It also imposes an obligation on States to take appropriate measures to support persons with disabilities to exercise their legal capacity. The Convention was ratified by all EU Member States, and confirmed by the European Union. It further states the full and effective participation and inclusion in society as a general principle (Art. 3), and calls on States to ensure effective access to justice for persons with disabilities, equal to other (Art. 13). And importantly from a private international law perspective, the Convention requires States to recognise the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others (Art. 18).

Germany and Ireland have strongly amended their civil laws to adapt to this. Other EU Member States are still in the process of doing so. It was clear at the conference that the law needs to make a paradigm shift. It is not easy for legislators and even legal scholars, to let go of the concept of “incapacity” and to accept that people may need support without being represented in their legal acts. This reality requires different thinking about personal law as well as contract law, and the intersection of both.

Legal framework for cross-border cases

In private international law, the main international source for Adult law is the Hague Adults Convention of 2000. This Convention was avant-garde when it was concluded. It dealt with the issue of Adults even before the UNCRPD came about. It provided a framework to ensure cross-border continuity of protection of adults, as well as for the legal acts they and/or their representatives performed. The Convention uses open-ended and respectful terminology. Yet, the Convention also suffers from its stagnant nature (as Conventions do – set in stone the moment they are adopted). The Convention was inspired by the Hague Child Protection Convention 1996, which is also a good Convention, ensuring the continuity of child protection and parental responsibility. This has the unfortunate result that the Convention uses concepts like incapacity, protection, guardianship, curatorship, placement, and representation. Yet, as explained in the previous section, the UNCRPD is requiring a shift away from such ideas.

To my mind the Convention, as a living instrument, can still stand in the emerging legal landscape. This requires a purpose-driven and context-sensitive interpretation of its provisions. Such reinterpretation will no-doubt soon reach domestic courts, and is already being discussed. The first Special Commission on this Convention held by the Hague Conference in November 2022, acknowledged that the terms ‘guardianship’ and ‘curatorship’ no longer exist in some legal systems, that have moved to supported decision-making. However, they concluded to keep the terms in the Convention, and not amend the Convention at that time (para 69). They also discussed the possible reinterpretation of ‘powers of representation’ (in Arts 15 to 17) to include advance unilateral acts or expressions of decisions, for instance on health care (paras 23 to 26). They concluded that courts could undertake such appreciation on a case-by-case basis. Thus, the door remains open for an interpretation fit for new legal and societal contexts.

The Hague Adults Convention is currently in force in sixteen States (thirteen EU Member States, the other three neighbouring States to the EU). In addition, five States (all of them EU States) signed the Convention without following up by a ratification yet.

After two resolutions by the European Parliament (in 2008 and in 2017), the European Commission in 2023 published two proposals on Adults. One proposal is for a Council Decision to authorise Member States that have not already done so to ratify the 2000 Hague Convention. The other is to complement the Convention in the EU by a Regulation, which enhances or slightly adapt some rules. The Commission’s approach can thus be described as a ‘Hague+’ one, similar to the approaches taken in parental responsibility and maintenance. Under the latest agreement between the Council and the Parliament (May 2026) the Regulation would place emphasis on ‘support’. The legislators do not seem to modify the Hague Convention’s private international law rules, but would include ‘support’ when reference is made to representation.

How should we then characterise?

The shift is monumental. For us to rethink private international law in this sphere, it is helpful to think in terms of two different scenarios that can arise when an Adult in need of assistance concludes a contract. The first is representation of the adult by another person. This other person is the one negotiating, deciding and contracting. The Adult involved stays in the shadow . The other is where the Adult is involved in the preparation, negotiation and conclusion of the contract. The Adult is the one signing, but with the help of a support person. This construction is different from current (traditional) contract law. Some argue that it does not comply with the standards of legal certainty.

The characterisation would be contract law to check the validity of the contract, i.e. to verify whether there was really a meeting of the minds (consensus) between the persons involved. If legal systems recognise the capacity of every person (or like the German system reduces capacity in only a very limited number of situations), then the characterisation stays within contract law. Thus it stops at the question of validity and consensus. In legal systems that still have the notion of incapacity, the characterisation for this question switches to the appropriate connecting factor under the law of persons (often the law of the nationality).

The Hague Adults Convention refers to ‘measures’ to protect an adult. These measures would however, in an ideal world, only involve the appointment of support persons for the Adult. Such appointment can happen under the jurisdiction bases and applicable law rules of the Convention. The Convention also foresees the possibility for Adults to appoint the representative(s) of their choice (Arts 15 to 17). The same private international law would apply for the appointment by Adults of support persons.

Recognition across borders

Getting to recognition, a court order or authentic instrument appointing a support person for an Adult would benefit from the recognition regime of the Hague Convention and the proposed Regulation. If a support person was appointed in an informal way, their role would not be up for recognition (in the private international law sense), but would turn on the law applicable to the legal relation. As explained above, that will to a large extent by contract law, in the absence of incapacity.

There is still much to think through. Private international law will probably be in flux for some time still, while domestic laws are being amended.

The author of this post is Johan Tufte-Kristensen who is an Associate Professor of Private and Procedural Law at the University of Copenhagen. In a decision of 8 May 2026, the Danish Supreme Court considered whether a child who had been wrongfully retained by his mother in Denmark should have been returned to the United […]

On 8 October 2026, the Colégio da Trindade of the Faculty of Law of the University of Coimbra will host the I Meeting of Private International Law Professors, entitled Recent Developments and Future Perspectives in Private International Law – A Reading from Portugal. As already noted on this blog in connection with the call for […]

I have not just been preparing the 5th ed of the Private International Law Handbook this summer. I have also subjected the EU’s CSA 2.0, the Proposed Cybersecurity Act, to a  test under the law of the World Trade Organization. The result is here.

As I was finalising the opinion I became aware of professor Van den Bossche’s views on same, suggesting similar points of attention. My study has a few more whistles and bells, and combined the opinions show that there are concerns under the WTO.

Students of Trade and investment law: we’ll get back to this come September….

Geert.

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 with a broader interest in comparative and European private law:

• Teresa Rodríguez de las Heras Ballell: Law in Uncertain Times: Fragilities, Dilemmas and the Role of (Soft) Legal Standards On the occasion of the ELI’s 15th Anniversary

In the editorial, Law in Uncertain Times: Fragilities, Dilemmas and the Role of (Soft) Legal Standards On the occasion of the ELI’s 15th Anniversary, Teresa Rodríguez de las Heras Ballell, reflects on the European Law Institute’s (ELI) contribution to shaping the law in times of global uncertainty on the occasion of its 15thanniversary and envisages the role the ELI is called upon to play in the future. After examining the three challenges and the corresponding fragilities facing the law, the editorial turns to two central dilemmas of contemporary law-making and discusses the harmonisation potential of soft law.

• Yves-Marie Laithier: The Reform of the French Law of Obligations: 10 Years On

In his article, The Reform of the French Law of Obligations: 10 Years On, Yves-Marie Laithier takes a look back and ahead on the tenth anniversary of the French reform of the law of contract, the general regime of obligations, and the proof of obligations. He points out the surprising fact that, as a result of the 2016 reform, the law applicable prior to it (the “old” law) has also been subject to a series of interpretative changes inspired by the perceived need to reduce the gap between it and the provisions newly inserted into the Civil Code (the “new” law). Thus, the reform, designed for the present, has led to a partial rewriting of the law of the past. The article concludes by assessing the future prospects of the reform.

• Walter Doralt: Das Projekt eines Europäischen Handelsgesetzbuchs – Vom Beruf unserer Zeit zur Reform und (Re-)Kodifikation im Handelsrecht

Walter Doralt on Das Projekt eines Europäischen Handelsgesetzbuchs – Vom Beruf unserer Zeit zur Reform und (Re-)Kodifikation im Handelsrecht provides (in German) a brief overview and assessment of the project for a European Commercial Code, which stems from an academic Franco-German initiative. In doing so, he highlights that major law reform initiatives on a European level have often originated in legal scholarship. The article addresses the challenges of translating academic proposals into legislation, as well as the potential benefits and lasting influence of such initiatives on the development of the law.

• Matthew Dyson: Law By Commission: Standing Law Reform Bodies in the Com-mon Law Tradition

In, Law By Commission: Standing Law Reform Bodies in the Common Law Tradition, Matthew Dyson examines the role of law commissions, ie, bodies officially charged with the task of reviewing the law and preparing reform proposals for the legislator to consider. The article explores when and how law commissions are typically created, how they work, what they do, and how successful they have been in the past. The article further considers the spread of law commissions as institutions widely used in common law (and mixed) legal systems. The article also compares law commissions to other bodies engaged in law reform.

Kluwer Law International has just released the fourth edition of Rome Regulations: Commentary, edited by Gralf-Peter Calliess and Moritz Renner, offering an article-by-article “German-style” analysis of the Rome I, II, and III Regulations. This landmark work has long been recognized as a leading authority on EU conflict-of-laws rules, and the new edition brings the commentary fully up to date. The updated volume incorporates developments since 2020, most notably landmark CJEU rulings that have advanced a common European understanding of the Regulations’ key provisions. It also addresses the post-Brexit landscape of EU-UK relations in private international law, and, reflecting a growing practical concern, the increasing intersection of economic sanctions regimes with overriding mandatory provisions. More information is available at the publisher’s website.

The European Association of Private International Law has established a Working Group to prepare a position paper on draft UNIDROIT-ICC Principles and Model Clauses for International Investment Contracts. Olaf Meyer agreed to serve as chair. The goal of the Working Group is to respond to the private international law aspects of the project. The UNIDROIT/ICC […]