Droit international général

by Guillaume Croisant, Claudia Cavicchioli, Nicole Rölike, Alexia Kaztaridou, and Julie Esquenazi (all Linklaters)

In a nutshell: reinforced legal certainty but questions remain

In its decision of yesterday (27 February 2025) in the Lastre case (Case C-537/23), the Court of Justice of the European Union (CJEU) handed down its long-awaited first judgment on the conformity of asymmetric jurisdiction clauses with the Brussels I recast regulation and the 2007 Lugano Convention.

The Court ruled that the validity of asymmetric jurisdiction clauses is assessed in the light of the autonomous rules of Article 25 of the regulation (rather than Member States’ national laws) and confirmed their validity where the clause can be interpreted as designating courts of EU or Lugano States.

This decision dispels some of the previous uncertainties, particularly arising from the shifting case law of the French Supreme Court. The details of the decision and any possible impact, in particular the requirement for the clause to be interpreted as designating courts of EU or Lugano States, will need to be analysed more closely, but on the whole the CJEU strengthened foreseeability and consistency regarding unilateral jurisdiction clauses under the Brussels I regulation and the Lugano convention.

Besides other sectors, this decision is of particular relevance in international financing transactions, including syndicated loans and capital markets, where asymmetric jurisdiction clauses in favour of the finance parties have been a long-standing practice.

Background

A so-called asymmetric or unilateral jurisdiction clause allows one party to choose any competent court to bring proceedings, while the other party is restricted to a specific jurisdiction. Such clauses are common in financial agreements, like international syndicated loan transactions, where lenders, bearing most of the financial risk, reserve the right to enforce claims wherever the borrower may have assets.

Article 25 of the Brussels I recast regulation provides autonomous conditions for the formal validity of jurisdiction clauses designating EU courts. By contrast, for the jurisdiction clause’s substantive validity, Article 25 refers to the law of the Member State designated by the jurisdiction clause. While one of the Brussels I recast regulation’s predecessors, the 1968 Brussels Convention, referred to jurisdiction clauses “concluded for the benefit of only one of the parties”, the regulation is silent on the validity of asymmetrical jurisdiction clauses. Their precise working under Article 25, particularly in relation to the substantive validity rule, awaited authoritative consideration by the CJEU.

In the absence of relevant national case law in many Member States and diverging approaches in jurisdictions where decisions had been rendered, today’s judgment brings welcomed clarity and legal certainty. For instance, in Commerzbank AG v Liquimar Tankers Management Inc, the English Commercial Court considered (pre-Brexit, when EU jurisdiction law still applied in the UK) that asymmetric jurisdiction clauses are valid under Article 25, whereas the evolving jurisprudence of the French Supreme Court (discussed below) has led to many debates.

Arbitration is excluded from the scope of application of the Brussels I recast regulation, meaning that the validity of asymmetric arbitration clauses generally depends on the law applicable to the arbitration clause (lex arbitri). Under some laws, they are accepted if no consent issues, such as duress, arise (see e.g. under English law the NB Three Shipping case).

Discussions in France spur crucial CJEU review

In the case at hand, an Italian and a French company entered into a supply agreement including an asymmetric jurisdiction clause, similar to clauses often seen in financial documentation favouring the lenders:

“The jurisdiction of the court of Brescia (Italy) shall apply to any dispute arising from this contract or related to it, [the Italian supplier] reserving the right to proceed against the buyer before another competent court in Italy or abroad.”

When a dispute arose, the French company brought proceedings before the French courts. The supplier challenged the competence of French courts on the basis of the unilateral jurisdiction clause. The French courts dismissed this objection, declaring the clause unlawful due to its lack of foreseeability and one-sided nature.

The case was brought before the French Supreme Court (Cour de cassation). In the past, its First Civil Chamber had ruled, in its 2012 Rothschild decision, that jurisdiction clauses giving one party the right to sue the other before “any other competent court” are invalid both under the French civil code and the Brussels I regulation, on the ground that this would be “potestative” (i.e. that the execution of the clause would depend on an event that solely one contracting party has the power to control or to prevent).

Although the First Chamber later abandoned any reference to the “potestativité” criteria, there now appear to be diverging positions among the chambers of the French Supreme Court regarding the validity of asymmetric jurisdiction clauses. On the one hand, further to several decisions, the latest being in 2018, the First Civil Chamber of the Cour de Cassation appears to hold that asymmetric jurisdiction clauses are invalid if the competent courts are not identifiable through objective criteria or jurisdiction rules within a Member State. On the other hand, the Commercial Chamber of the French Supreme Court ruled in 2017 that such clauses are valid if the parties have agreed to them, regardless of  predictability.

In this case, the Cour de cassation sought guidance from the CJEU through a preliminary ruling reference. The Cour de cassation requested the CJEU’s position on:

• whether the lawfulness of asymmetric jurisdiction clauses should be evaluated under (i) the autonomous principles of the Brussels I recast regulation or (ii) the applicable national law;
• if the Brussels I recast regulation applies, whether this regulation permits such asymmetric clauses;
• if national law is applicable, how to determine which Member State’s law should take precedence.

After the hearing, the Court deemed a prior opinion from the Advocate General not necessary.

CJEU upholds asymmetric clauses… under conditions

On the first question, the CJEU ruled that, in the context of the assessment of the validity of a jurisdiction clause, complaints alleging the imprecision or asymmetry of that agreement must be examined in the light of autonomous criteria which are derived from Article 25 of the Brussels I recast regulation. Matters of substantive validity, for which the law of the relevant Member States shall apply, only concern causes which vitiate consent, such as error, deceit, fraud or violence, and incapacity to contract.

Turning to the interpretation of these autonomous criteria under Article 25, the Court confirmed the validity of asymmetric jurisdiction clauses designating courts of EU Member States or States that are parties to the Lugano Convention.

The Court first confirmed that parties are free to designate several courts in their jurisdiction clauses, and that a clause referring to “any other competent court” meets the requirements of foreseeability, transparency and legal certainty of the Brussels I recast regulation and the Lugano Convention since it refers to the general rules of jurisdiction provided for by these instruments.

However, the Court importantly held that these requirements are met only insofar as the jurisdiction clause can be interpreted as conferring jurisdiction to the court designated in the clause (in the case at hand, Brescia) and the competent courts of the EU/Lugano States to hear disputes between the parties. EU law alone would not make it possible to confer jurisdiction to a court of third countries, as this designation would depend on the application of their own private international law rules. The exact implications of this requirement will require careful assessment, in particular where non-EU/Lugano parties are involved.

With respect to the alleged “unbalanced” nature of such clause, the Court stressed that the Brussels I recast regulation and the Lugano Convention are based on the principle of contractual autonomy and thus allow asymmetric clauses, as long as they respect the exceptions foreseen by these instruments, in particular with respect to exclusive jurisdiction (Art. 24 Brussels I recast regulation) as well as the protective rules in insurance, consumer and employment contracts (Arts. 15, 19 and 23 Brussels I recast regulation).

Registration is now open for the inaugural conference of the Australasian Association of Private International Law, to be held at the Ship Inn conference centre at Southbank, Brisbane from 16-17 April 2025.

The program features panels on

• Private International Law and Technology;
• Anti-suit and Anti-enforcement Injunctions;
• Private International Law and Climate Change; and
• Prenuptial Agreements.

Attendance at conference sessions can be used for CPD; check local requirements.

Conference fees

Reduced fees apply to members of AAPrIL. You can join the Association at https://aapril.org/membership/

Member (2 days) $110
Member (1 day) $60

Non-member (2 days) $150
Non-member (1 day) $80

Student: Free to attend the conference only.

Conference dinner: $110 for a three course meal and a selection of drinks

Register here

 

Aboute AAPrIL

The Australasian Association of Private International Law (AAPrIL) is a group of people committed to furthering the understanding of private international law in Australia, New Zealand and the Pacific region.

AAPrIL was founded in 2024 by private international lawyers from Australia and New Zealand who have known one another for years through engaging with the discipline of private international law, including through conferences of the Journal of Private International Law, meetings of the Hague Conference on Private International Law, and numerous other academic activities. The inuagural AAPrIL President is Professor Mary Keyes. The Hon Andrew Bell, Chief Justice of New South Wales.

A new issue of ZEuP – Zeitschrift für Europäisches Privatrecht is now available. It comes with contributions on EU private law, comparative law and legal history, unification of law, private international law, and individual European private law regimes. The full table of content can be accessed here. The following contributions might be of particular interest […]

On 27 February 2025, the CJEU delivered its ruling in Case C‑537/23, Società Italiana Lastre SpA (SIL) v. Agora SARL. The case was referred by the French Cour de cassation which, at last, asked the CJEU whether asymmetric jurisdiction clauses are valid under the Brussels I bis Regulation. As is well known, the Cour de […]

The legislative work of the Hague Conference on Private International Law (HCCH) currently revolves around eight projects. The Jurisdiction Project occupies a prominent position in this context. With the conclusion of the Judgments Convention, in 2019, the focus of the normative work of the HCCH in the area of civil and commercial law turned to […]

The German Wissenschaftliche Vereinigung für internationales Verfahrensrecht, an association of German-speaking academics working on questions of international civil procedure law, will be holding its bi-annual conference at the University of Münster on 27–29 March 2025. The event is only open to members of the association.

The full programme can be found here; registration is possible here.

 

The German Notarial Institute (Deutsches Notarinstitut; DNotI), located in Würzburg, is currently looking for lawyers interested in contributing to the Institute’s mission of providing expert advice to German notaries, including in cross-border settings.

The full job advertisement can be found here.

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

The fourth issue of the Revue Critique de droit international privé of 2024 will very shortly be released. It contains four articles, eight case notes and many book reviews. In line with the Revue Critique’s recent policy, the doctrinal part will shortly be made available in English on the editor’s website (for registered users and institutions).

In the first article, Prof. Myriam Hunter-Henin (University College London) delves into La rencontre du droit international privé et du climat : réflexions de méthode au sujet des KlimaSeniorinnen (Private international law encountering climate: methodological reflections on KlimaSeniorinnen). Its abstract reads as follows:

The article draws on the European Court of Human Rights decision Verein KlimaSeniorinnen Schweiz and others v. Switzerland [GC], no. 53600/20, to reflect on the interaction between human rights reasoning and private international law methods.  It argues that an expansionist interpretation of human rights need not amount to their imperialist enforcement or to an undemocratic encroachment upon the domain of the executive or legislature. Far from threatening to take over the discipline of private international law, human rights reasoning, as displayed in the present case, might usefully inspire private international law jurists to a renewed openness towards the other.

In the second article, Prof. David Sindres (Université d’Angers) asks Faut-il admettre la radiation d’un pourvoi en cassation en cas d’inexécution d’une décision d’exequatur ? (Should a cassation appeal be struck out in the event of non-enforcement of an exequatur decision?). This procedural question gives the author an opportunity to deploy thought-provoking considerations of legal theory, which are presented as follows:

Under article 1009-1 of the French Code of Civil Procedure, an appeal in cassation lodged by a party who fails to justify having complied with the challenged decision shall, with limited exceptions, be struck off the roll. Yet, the Cour de cassation tends to reject applications to strike out, for non-execution, cassation appeals lodged against exequatur decisions, on the ground that article 1009-1 of the French Code of Civil Procedure requires, for its application, that a cassation appeal is filed against an enforceable judgment, which is not the case when the judgment whose non- execution is invoked is an exequatur decision. Seemingly flawless, the current solution nonetheless yields curious consequences in practice: in particular, it implies that the party lodging a cassation appeal against an exequatur decision does not, beforehand, have to enforce anything, even though the exequatur is supposed to confer enforceability in France on the foreign decision. The purpose of this article is therefore to reexamine the relevance of the current solution adopted by the Cour de cassation, by considering the idea that it is not the foreign decision or the arbitral award that needs to be enforced in France, but rather the exequatur decision itself.

In the third article, Prof. Dominique Bureau (Université Paris-Panthéon-Assas) reviews L’article 14 du Code civil entre continuité(s) et changement (Article 14 of the French Civil code between continuity and change). The contribution clarifies the current “destiny” of this famous provision, while shedding light on a major jurisprudential shift. Its abstract reads as follows:

Handed down by four different chambers of the Court of Cassation, four recent judgments illustrate an important sequence of case law in matters of international jurisdiction, regarding Article 14 of the French Civil Code, which establishes the jurisdiction of French courts when the plaintiff is of French nationality. Specifically, the Court of Cassation decided in a judgment of June 12, 2024 that Article 14 of the French Civil Code was not applicable in insolvency matters. Thus, a French creditor can no longer initiate collective proceedings in France against a debtor who has virtually no connection with France. This solution will have a significant impact on French litigation in this area.

Finally, in the last article, Prof. Horatia Muir Watt (Sciences Po) navigates the maze of La restitution internationale d’œuvres d’art spoliées (The international restitution of looted art). The piece discusses the Cassirer v. Thyssen – Bornemisza Collection Foundation saga, illustrating the limitation of any conflict of laws methodology when confronted with objects that blur the boundaries between traditional legal categories. Its abstract reads as follows:

What is the legal regime for the international restitution of a work of art, the object of plunder (in this case by the Nazi regime) and discovered more than half a century later by the original owner’s successor in title, displayed in the collection of a major museum? It is the fate of a magnificent painting by Camille Pissaro, Rue St. Honoré, après midi, effet de pluie (1897), which provides here, if not a satisfactory answer, at least an opportunity to reflect on various moral and political enigmas that lie beneath the legal technique of private international law, in one of its most complex instantiations. If these lead to the question of the responsibility of intermediaries, and hence the banality of the evil that can be at work in the workings of the art market, the path also serves here to sketch out other controversies on the fate of cultural property looted in diverse contexts, whether colonial, post-colonial or war-related, and hence on the notion of art, culture and our understandings of the tortuous course of history.

The full table of contents will be available here.

Previous issues of the Revue Critique (from 2010 to 2022) are available on Cairn.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts“ (IPRax) features the following articles:

 

C. Budzikiewicz/H.-P. Mansel/K. Thorn/R. Wagner: European Conflict of Law 2024: Business as usual?

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2024 until December 2024. It presents newly adopted legal instruments and summarises current projects that are making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. The authors discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

 

Th. Klink: The Proceedings in Cross-Border Disputes before the Commercial Court

By establishing the Commercial Courts and the Commercial Chambers, the Legal Venue Strengthening Act, which will enter into force on 1 April 2025, aims to enable innovative proceedings before state courts in important areas of commercial law (B2B cases, M&A cases and cases of D&O liability). State jurisdiction is to become more attractive, especially for cross-border disputes. Based on a litigation agreement pursuant to Sections 119b (2), 184a (3) of the German Courts Constitution Act on the first instance jurisdiction of the Commercial Court and on the conduct of proceedings in English, the article analyses details of the newly created procedural instruments and their implementation in practice. The focus is on trial proceedings. In addition, the special features of appeal proceedings and cross-border enforcement of judgments are also presented.

 

A. S. Zimmermann: Passportisation – Nationality between Public and Private International Law in Times of Forced Naturalisations by the Russian Federation

In the course of its aggression against Ukraine, Russia employs its nationality as a strategic tool: It naturalises Ukrainian citizens living in occupied territories in large quantities, making them dual nationals. Their cooperation is often ensured by substantial pressure. This article aims to investigate the Private International Law consequences of this strategy, taking into account the Public International Law rules on naturalisations. The article thereby intends to provide a foundation for a common Public and Private International Law discourse on the subject.

 

G. Kulov: The justification and conflict of laws problems of liability of domestic companies by piercing the corporate veil in the light of the Corporate Sustainability Due Diligence Directive

The Corporate Sustainability Due Diligence Directive (EU) No. 2024/ 1760 sets out certain due diligence obligations, negligent non-compliance with which can lead to civil liability. The Directive applies not only to companies in Member States, but also to companies in third countries that exceed certain turnover thresholds. However, civil liability cannot always be enforced against such third-country companies, as Regulation (EU) No. 1215/2012 does not foresee the jurisdiction of European courts for such claims. This provides an opportunity for companies in Member States to avoid civil liability under the Directive through intra-group restructuring. The exploitation of these enforcement deficiencies of the Directive to avoid civil liability may justify the cross-border liability of European companies by piercing the corporate veil, especially when they were originally intended to be covered by the Directive. Such liability may be applied as an overriding mandatory rule irrespective of the lex causae where the foreign company law is applicable. However, in the absence of a corresponding provision in the Directive, the establishment of such liability by case law inevitably leads to an impairment of legal certainty. Consideration should therefore be given to establishing such liability by amending the Directive.

 

S. L. Gössl: Ukrainian declaratory judgements in surrogacy cases – filiation link to the intended parents ex tunc or ex nunc?

Since the BGH ruling that a Ukrainian birth registration does not constitute a recognisable decision, practice in Ukrainian surrogacy cases has changed. In order to obtain a recognisable filiation decision in favour of the intended parents, a (declaratory) court decision is sought in Ukraine after the child’s birth. Such a court decision can be recognised in Germany under procedural law. Dogmatically, it is convincing to recognise such an allocation of parents with ex tunc effect if this is the content of the court decision. The problem of protection of the child’s right to know its own origins in cross-border surrogacy cases – which would be better protected by an ex nunc effect – remains unresolved. A corresponding register should be introduced.

 

J. Kondring: The European Service Regulation and the service of documents on a domestic representative

In a recent preliminary ruling by the ECJ, the ECJ had to rule on the question of whether, within the geographical scope of application of the European Service Regulation, an action for damages under antitrust law can be served on the domestic subsidiary of a foreign cartelist under the “unity of undertakings” doctrine which was developed in the field of antitrust law. According to the ECJ, such a possibility does not arise from the European Service Regulation itself. However, the European Service Regulation is not applicable to the service of a document in the forum Member State on a representative authorised by the person to be served. Such an authorisation for service can also be based on statutory law including the lex fori of the forum state. To such extent, the forum state can permit, under certain conditions, in its autonomous law even domestic service to the domestic subsidiary of a foreign parent, as is the case in the law of some US states for so-called “involuntary agents”. If service is made on an inadequately authorised person in the forum state, it is not possible to remedy the service error. However, this only applies to documents instituting proceedings as the European Service Regulation does not claim exclusivity for the service of documents that do not institute proceedings. This can be concluded from the materials on the 2020 version of the European Service Regulation as well as from its Article 22 which is silent on documents that do not institute proceedings.

 

L. Liu: Service of judicial documents in the People’s Republic of China

The service of court documents from German proceedings in China is often challenging in practice due to the differences in the legal and judicial systems, legal bases and procedures between the two countries. Numerous judgments have already addressed this issue, including public service in Germany. This article will first outline the legal basis for the service of foreign judicial documents in China, as well as the process, methods and means of service, and then analyse whether the public service in the case of the judgment by the Krefeld Regional Court on October 6, 2022 – 7 O 156/20, was defective.

 

F. Maultzsch: Der Einfluss US-amerikanischer Iran-Sanktionsprogramme auf Verträge mit deutschem Vertragsstatut

The Higher Regional Court of Frankfurt a.M. (OLG Frankfurt a.M.) had to deal with the extraterritorial effect of so-called US secondary sanctions on contracts to which German law is applicable. Especially, it had to decide to what extent the foreign sanctions might influence the application of the German provisions on breach of contract on a substantive level if the foreign rules cannot be applied as overriding mandatory provisions under Art. 9(3) Rome I Regulation. In doing so, the court also had to deal with the relevance and coverage of the EU Blocking Regulation. The following article analyses the findings of the court and argues in favour of a rather narrow role for foreign extraterritorial rules in contractual relations.

 

M. Fornasier: Aligning the European Certificate of Succession with the Member States’ national rules on land registration

Article 69(5) of the European Succession Regulation (ESR) provides that the European Certificate of Succession constitutes a valid document for the recording of succession property in the registers of foreign Member States. The same provision, however, contains a reference to point l of Article 1(2) ESR, which clarifies that the Regulation does not affect the Member States’ domestic rules on the recording of rights in registers. In order not to undermine the effectiveness of the Certificate, the Member States’ national rules on registers and the European provisions on the issuance of the Certificate need to be aligned with each other. In the recent Registr? centras case, which came before the Court of Justice of the European Union (CJEU) more than five years after its ruling in Kubicka, the Court was faced for the second time with the task of striking a balance between the effectiveness of the Certificate and the Member States’ regulatory autonomy in matters of land registration. While, in Kubicka, the CJEU had advocated a rather narrow interpretation of point l of Article 1(2) ESR, placing a strong emphasis on the effet utile of the Certificate, the Court took a different – and more formalistic – approach in Registr? centras, thus putting the effectiveness of the Certificate at risk. The following case note analyses the Court’s judgment, shedding light on the legal context of the case, and assesses its implications for the national authorities responsible for issuing the European Certificate of Succession. .

 

M. Scherer/O. Jensen/C. Kalelio?lu: The Law of the Arbitration Agreement Meets Russia-related Anti-Suit Injunctions: The United Kingdom Supreme Court’s Decision in UniCredit Bank GmbH v RusChemAlliance LLC

In retaliation to Western sanctions against the Russian Federation, Russia has introduced legislation that allows Russian courts to proceed with litigation involving entities affected by Western sanctions despite valid choice of foreign court or arbitration agreements. Russian courts make use of this option by assuming jurisdiction where otherwise none would exist and by issuing injunctions against parties attempting to rely on their arbitration agreements. Faced with such a scenario in UniCredit v RusChem, the UK Supreme Court strengthened the protective role of the English courts over contracts governed by English law that contain arbitration agreements. While the decision offers significant protections for contracts governed by English law, it also introduces further uncertainty to the common law test for determining the law governing arbitration agreements under English law. This case note examines the Supreme Court’s decision from both angles. It explores the decision’s impact on contracts governed by English law that designate arbitration as the dispute resolution mechanism, as well as the current developments on the law governing arbitration agreements under English law.

 

S. Noyer/E. Schick: Conference of the German Council for Private International Law on the occasion of the 70th anniversary of the Council, September 10-11, Cologne, Germany.

 

J. Bruls: “Who’s Afraid of Punitive Damages?“, March 8-9, Augsburg, Germany

Prof. Dr. Dr. h.c. Thomas Rauscher, formerly a professor of private international law at the University of Leipzig (Germany) and still one of the most prolific commentators on German and European PIL, has been honoured by a Festschrift on the occasion of his 70th birthday. The volume, titled “Europeanization of private law”, has 623 pages and is published by CH Beck (Munich). It contains numerous contributions on private international law, comparative law and international civil procedure. The authors come from various countries, including Germany, Austria, Hungary, the United States and Vietnam. Most contributions are in German. For further information and a table of contents, please click here.

Issue 1/2025 of RabelsZ has just just been released. It contains the contributions to a family law symposium held at the Max Planck Institute in Hamburg in June 2024. All content is Open Access: CC BY 4.0 and more articles are available Online First.

 

Anne Röthel, Preface to this family law special, pp. 1–2, https://doi.org/10.1628/rabelsz-2025-0003

 

FAMILY LAW PARADIGMS – SYMPOSIUM, JUNE 2024

Anne Röthel, Familienrechte unter den Bedingungen der Moderne – eine Erprobung, [Family Law Under the Conditions of Modernity – An Assay], pp. 3–34, https://doi.org/10.1628/rabelsz-2024-0069

Since the turn of the twentieth century, many European legal concepts of marriage, divorce, parentage, and family have been fundamentally transformed. These shifts are spoken of in terms of relaxation, liberalization, pluralization, individualization, and emancipation, whereupon family law is often said to have been »modernized« or become »more modern«, premised on the everyday usage of »modern« to signify what is new or has changed. This article focuses instead on the concept of modernity as the quintessential identifier of particular legal ideals and particular assumptions about developments in the law as they have unfolded in the sociological theory of modernization. Based on examples, this article shows how family law in European jurisdictions can be described as »modern« in this specific sense of the word, identifies the legal structures through which these modernizing instances have been accomplished, and points out ongoing tensions over the legal ideals of modernity. The result is a nuanced portrait of the modernity of family law in Europe and the various dynamics affecting it. Modernity is as much of a failure as it is a fait accompli. But modernity has fundamentally changed expectations, both about how the core notions of family law are to be justified as well as about law’s legitimate function.

 

Johanna Croon-Gestefeld, Is There Such a Thing as Transnational Family Law?, pp. 35–58, https://doi.org/10.1628/rabelsz-2025-0007

Analysis of transnational law embraces the idea that thinking about the law almost exclusively in national terms is inadequate. Transnational legal analysis further rests on the concept of legal pluralism. Family law has received little attention in the field of transnational law so far. But the existence of transnational and migrant families is plain. Moreover, family law pertains to events that take place in a pluralist environment. Does it therefore make sense to look at family law from the transnational point of view? This article explores this question in detail. It sets forth that the transnational perspective assists in depicting the operation of family law in a globalized world, including by encompassing the phenomenon of non-state actors being heavily involved in the creation, application and enforcement of family law.

 

Anatol Dutta, Familie und Personenstand: Die zunehmende Bedeutung des Personenstandswesens, [Family and Personal Status: The Increasing Importance of Civil Status Registration], pp. 59–82, https://doi.org/10.1628/rabelsz-2025-0005

This article focuses on the civil status registration system, an area of public administration whose central task is to record as completely as possible important life events of citizens – birth, marriage, the establishment of a registered partnership, and death. In many jurisdictions, the civil registrars thereby engage in public enforcement of otherwise private family status laws. The registry offices not only record the facts relevant for civil status but also certify parentage, marriage and partnership, name and gender as legal status relationships based on family law and the law of natural persons. This paper aims to show that certain recent developments have increased the importance of civil status registration, but so far the consequences of this increase have not always been sufficiently recognized, neither in legal policy nor in legal academia.

 

MORE ESSAYS

Katharina Kaesling, Kindliche Autonomie und elterliche Sorge im (digitalen) Binnenmarkt, [Children’s Autonomy and Parental Rights of Care in the (Digital) Single Market], pp. 83–131, https://doi.org/10.1628/rabelsz-2025-0006

Children are increasingly important actors in the (digital) single market. The realization of their (digital) autonomy has to be reconciled with their protection. The developing capacities of minors, to which the legal systems of the Member States and the European regulatory approaches refer in different ways, are crucial in this respect. The rules of the Member States determine how children can shape their external relations autonomously and how their opinions are taken into account within the family. Starting with the General Data Protection Regulation and continued by new EU digital legislation, such as the Digital Services Act, new, largely indirect regulatory approaches have emerged, based on the obligations of other private actors, such as data controllers and online platforms. Against this background, the article comparatively analyses context-specific regulations and their application in the analogue and digital spheres. The legal fragmentation resulting from the differences in regulation jeopardizes not only the internal market, but also the steering function of state law and thus the guarantee of children’s autonomy in the EU – especially in the data and platform economy.

 

Iryna Dikovska, Removal and Retention of Children in Times of War: The Hague Child Abduction Convention and the Case of Ukraine, pp. 83–131, https://doi.org/10.1628/rabelsz-2025-0009

It seems fair that a parent who has custody of a child who is removed or retained abroad without the parent’s consent should be able to have the child returned. However, what if this entails return to a country at war? What if the child has settled down in a new country to such an extent that returning to the country from which he or she was once removed would be highly traumatic? What should happen when the child objects to his or her return? To which state can a child be returned? Does the parental right of return depend on the legis-lative provisions regarding border crossings and whether they stipulate that a child may be taken out of the country without the parent’s consent? These and other questions are analysed under the lens of the 1980 Hague Convention on the Abduction of Children, con-sidering in particular the specific example of Ukrainian children who, after the beginning of Russia’s full-scale invasion of Ukraine, were taken to the territory of states that are party to the Convention.

 

BOOK REVIEWS

This issue also contains several reviews of literature, this time with a special focus on family law (pp. 165–192).

Stefan Arnold (University of Münster) and Bettina Heiderhoff (University of Münster) edited Children in Migration and International Family Law – The Child’s Best Interests Principle at the Interface of Migration Law and Family Law with Springer. The book, part of the EU-funded FAMIMOVE project, explores the challenges faced by children and families migrating to the […]

By Sanjitha Ravi, Jindal Global Law School, OP Jindal Global University, Sonipat, India

The Singapore International Commercial Court (“SICC”) in Frontier Holdings Ltd v. Petroleum Exploration (Pvt) Ltd overturned a jurisdictional ruling by an International Chamber of Commerce (“ICC”) arbitral tribunal, holding that the tribunal did, in fact, have jurisdiction to hear the dispute. The SICC’s decision focused on interpreting the arbitration provisions in the Petroleum Concession Agreements (“PCAs”) and Joint Operating Agreements (“JOAs”), which had created ambiguity regarding whether disputes between foreign parties, i.e., Foreign Working Interest Owners (“FWIOs”), and Pakistan parties, i.e., Pakistani Working Interest Owners (“PWIOs”), were subject to international arbitration. The arbitral tribunal, by majority, had concluded the PCAs restricted ICC arbitration to disputes between FWIOs inter se or between FWIOs and the President of Pakistan, thereby excluding disputes between FWIOs and PWIOs. The SICC rejected this reasoning and concluded that the provisions should be applied with necessary modifications to fit the JOAs’ context by conducting an in-depth construction of the dispute resolution provisions of the different agreements involved. The court found that a reasonable interpretation of these provisions indicated an intention to submit FWIO-PWIO disputes to ICC arbitration rather than Pakistani domestic arbitration.

The (Un)Complicated Fact Pattern

The dispute arose from an oil and gas exploration agreement in Pakistan, where Frontier Holdings Limited (“FHL”), a company incorporated in Bermuda, sought to challenge a jurisdictional ruling made by an arbitral tribunal under the auspices of the ICC. FHL’s claim was based on JOAs and PCAs signed in 2006 between PEL and the President of Pakistan, which governed oil exploration and production in the Badin South and Badin North Blocks. These agreements contained provisions regarding arbitration and dispute resolution, specifically Article 28, which stipulated that disputes that the International Centre for Settlement of Investment Disputes did not take jurisdiction over were to be resolved by arbitration under the ICC. Article 28.3 clearly stated that Article 28 was only applicable to a dispute between FWIOs inter se or between the FWIOs and the President of Pakistan. The JOAs, which were annexed to the PCAs, further stated under Article 17 that any dispute arising out of the JOAs was to be dealt with mutatis mutandis in accordance with Article 28 of the PCAs. Furthermore, Article 29.6 stated that where matters were not specifically dealt with in the PCAs, the matters would be governed by, among other things, the Pakistan Petroleum (Exploration and Production) Rules 2001 (“Rules”). These Rules, as per Rule 74 required that any dispute regarding a petroleum right or anything connected to such right was to be resolved by arbitration in Pakistan under Pakistani law. Article 18.1 and 1 of the PCAs stipulated that in case of a conflict between the JOA and PCA, the JOA would be regarded as modified to conform to the PCA, and in case of inconsistency or difference in such terms, the terms of the PCAs would prevail, respectively. FHL acquired a 50% working interest in the Blocks through a Farm In Agreement (“FIA”) and Deed of Assignment. In 2022 and 2023, PEL, as the operator, sought to forfeit FHL’s interest due to non-compliance with cash calls. FHL initiated arbitration under ICC rules, but PEL contended that the arbitral tribunal lacked jurisdiction, arguing that the applicable arbitration provisions under the PCAs and JOAs did not cover disputes between FWIOs and PWIOs. The arbitral tribunal, by majority, ruled that it had no jurisdiction. This led to FHL challenging the tribunal’s ruling before the SICC.

Judicial Analysis by the SICC

At the outset, there was no dispute between the parties on two aspects: first, that Pakistani law was the proper law of the contract, and second, that the incorporation of Article 28 of the PCAs into the JOAs by Article 17 of the latter agreements demonstrated that each of FHL and PEL consented to resolve disputes arising out of the JOAs by arbitration per se to the exclusion of litigation before domestic courts (hence, an agreement to arbitrate per se existed). The core issue before the court was whether the tribunal had jurisdiction to hear the dispute between FHL and PHL. To do this, the SICC engaged in the interpretation of Article 28 of the PCAs and Article 17 of the JOAs. The court analysed the textual ambiguities and how the provisions should be construed in light of the overall intent of the agreements.

Pakistan is a partial integration jurisdiction, meaning that the court could go beyond the words of the agreement to construe its meaning only when such words were ambiguous. In the event of ambiguity, the court could consider the contract’s commercial purpose and the factual background against which that contract was made. If the words of the agreement on their plain and ordinary meaning led to inconsistency within the document or absurdity, the plain and ordinary meaning of those words could be reasonably modified to avoid absurdity and inconsistency and reflect the parties’ intention.

In understanding the parties’ intention, the SICC concluded that upon reading Article 28 of the PCAs as a whole, the intention that disputes involving FWIOs were to be dealt with in a manner other than by Pakistani arbitration (which was specifically stipulated for disputes between PWIOs inter se or between PWIOs and the President) even though it did not specifically deal with FWIO-PWIO disputes. Furthermore, because the JOA was annexed to each of the PCAs which were in turn envisaging assignments of interests, there existed an understanding that parties other than the original Pakistani parties could become parties to the JOAs and become subject to the dispute resolution provision in Article 17 of the JOAs. The SICC concluded that FHL became a party to the PCAs and JOAs when it acquired its interest and noted that in the Assignment Agreement between FHL, PEL and the President, there was an ICC arbitration clause. Reading Article 28 of the PCAs and Article 17 of the JOAs with Article 29.6 of the PCAs sand Rule 74 of the Rules, the court concluded that to say that FWIO-PWIO fell under Article 29.6 would render the words “mutatis mutandis” in Article 17 otiose. The court concluded that Article 28.3 of the PCAs applied, moulded by the use of the words “mutatis mutandis,” by substituting “Pakistan Working Interest Owner” for “THE PRESIDENT” in Article 28.3. This was the approach which commended itself to the England and Wales Court of Appeal (“EWCA”) in Hashwani and others v. OMV Maurice Energy [2015] EWCA Civ 1171 wherein a similar fact pattern was examined. The SICC further noted that there was a clear intention that disputes involving FWIOs were to be resolved by arbitration outside Pakistan because the expression could not be given effect otherwise. There was no inconsistency with Article 18 and Article 1 and this as per the SICC. Article 29.6 and Rule 75 of the Rules were default provisions and did not alter the meaning of Article 28 of the PCAs and Article 17 of the JOAs.

The contention that FHL was not a party to the original PCAs was irrelevant, and the SICC held that PEL was incorrect in drawing a parallel to the factual matrix in Hashwani in this regard. In Hashwani, the EWCA had allowed the party which sought to invoke ICC arbitration even though they were not a party to the original contract. Furthermore, it was a strained construction of Article 17 to say that despite its express incorporation of Article 28, the resolution of the dispute was not governed by Article 28 of the PCAs but by a default provision. Finally, that the FIAs contained an ICC arbitration clause provided support for the contention that the parties’ intention at the time FHL entered into the PCAs and became a party to the JOAs was for FWIO-PWIO disputes under the JOAs to be governed by international arbitration. In the circumstances, the SICC held that the majority of the tribunal was incorrect in contending that the tribunal had no jurisdiction to hear or determine the dispute and that FHL was entitled to pursue its claim.

The Ruling’s Implications on Commercial Contracts

The court emphasised that reading the arbitration clauses in a restrictive manner, as the tribunal’s majority had done, undermined commercial certainty and the purpose of arbitration in cross-border energy contracts. By setting aside the tribunal’s ruling, the SICC reinforced the principle that arbitration agreements should be interpreted in a manner that upholds international commercial arbitration, particularly when foreign investors are involved in contracts with state-linked entities. The decision provides clarity on jurisdictional disputes in international contracts, ensuring that parties engaging in cross-border investments can rely on neutral arbitration forums rather than being subjected to domestic dispute resolution mechanisms.

The SICC’s ruling in Frontier Holdings carries significant implications for commercial contracts, particularly in international energy and infrastructure agreements. It underscores the necessity for clarity in arbitration agreements, emphasising that parties must explicitly define jurisdictional provisions to avoid ambiguity. The ruling highlights the careful use of terms like “mutatis mutandis”, which, if not properly drafted, can lead to interpretational disputes. This becomes so much more of a zone of ambiguity because of other provisions in the contract which provide for other means of dispute resolution in a different set of circumstances, such as between a combination of specific parties in a multi-party agreement or based on the subject matter of the dispute. India, another partial integration jurisdiction, has faced similar challenges regarding arbitral jurisdiction in cross-border commercial disputes. Several key cases illustrate how Indian courts have approached arbitration agreements in international contracts. For instance, in Enercon (India) Ltd v. Enercon GmbH (2014) 5 SCC 1, the Supreme Court of India ruled that arbitration agreements must be interpreted in a way that ensures disputes are effectively resolved through arbitration. Similarly, in Cairn India Ltd v. Union of India (2019 SCC OnLine Del 10792), the Delhi High Court emphasised that arbitration clauses should be construed in favour of international arbitration, especially in contracts involving foreign investment. The implications of the SICC’s approach, as seen in Frontier Holdings, suggest that partial integration courts could adopt similar reasoning in cases involving foreign and Indian entities in commercial contracts. That said, parties would be in a much better position if they drafted provisions, especially those as pertinent as the dispute resolution terms, in clear terms.

Additionally, the decision reinforces the importance of international arbitration, affirming the preference for neutral forums in resolving cross-border commercial disputes, especially where foreign investors are involved. By setting aside the arbitral tribunal’s restrictive interpretation, the judgement further strengthens protections for foreign investments, ensuring that foreign investors are not subjected to domestic arbitration in host states, particularly in cases where state-owned entities are parties to the dispute.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 27 February 2025 at 14:30 (Mexico City time – CST), 21:30 (CET time). The topic of the webinar is ‘Private International Law in the Inter-American system: A glance in the light of the 50 anniversary of the CIDIP’ and will be presented by OAS Director Dante Negro (in Spanish).

CIDIP is the Spanish acronym for the Inter-American Specialized Conferences on Private International Law. For a history of the CIDIP, click here.

The details of the webinar are:

https://us02web.zoom.us/j/87314720181?pwd=yN9CVZdxnVWKs1R9oE8aPIxukLKvie.1

Meeting ID: 873 1472 0181

Password: AMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

 

The Grand Chamber of the Court of Justice has rendered today, 25 February 2025, its much awaited ruling on case C-339/22, BSH Hausgeräte. The Court was requested to clarify the scope of Article 24(4) of Regulation No 1215/2012 (Brussels I bis) as regards disputes relating to the infringement of patent rights when the invalidity of […]

The CJEU confirmed this morning in C‑339/22 BSH Hausgeräte GmbH v Electrolux AB (no language versions other than French and Swedish at the time of posting) that in principle Brussels Ia’s exclusive jurisdictional rule for registered intellectual property rights (A24(4) has no reflexive effect. [I suggest below that the reasoning extends to all of A24).

In doing so it did not follow the Opinions of its AG, which I reviewed here for the first one, and here for the second one. (There were two seeing as the case was reassigned to Grand Chamber).

The case in essence concerns two issues: the extent of the exclusive jurisdiction of the Article 24(4) court in infringement claims (as opposed to direct invalidity actions); and the question whether A24 works reflexively: ie whether the surrender of jurisdiction should also be applied in cases where the A24(4) court is not in an EU Member State – previously addressed in  IRNova f FLIR. In current case the CJEU frequently cites IRNova, confirming as it were that judgment’s matter of factly rejection of reflexivity.

The Court did, justifiably in my view, follow the AG on the issue of a stay between EU Member States courts, when the claim is one for infringement of an intellectual property right (‘IPR’), and the defendant raises a defence of illegality.

Like the AG the CJEU opts for a “narrow reading” of GAT v LUK: a stay of the infringement proceedings until the A24(4) court holds on validity, and then continued jurisdiction for the ‘infringement’ court. The CJEU

cites [43] the need for a restrictive interpretation of the exceptions to A4’s principled actor sequitur forum rei jurisdiction.

[44] and referring to the AG, a different interpretation would make full jurisdiction for the A24(4) court the rule rather than the exception (seeing as an invalidity defence is run of the mill in IPR infringement cases).

[46] particularly in Member States where civil procedure rules allow for the invalidity defence to be pleaded throughout the proceedings, it would lead to uncertainty of jurisdiction throughout the proceedings.

The question of extra-EU reflexive effect of Article 24(4) then. This is

kicked off [55] by a reference to the core objectives of Brussels Ia: lubrication of the internal market, and (later in the legislative history), part of the creation of a European judicial area. This is an internal EU objective ([55]: [BIa] est un régime de compétence interne à l’Union européenne.

[56] IRNova had already held that A24(4) does not apply where the patent at issue was granted by a third state; [57] A24(4) does not grant any jurisdiction, exclusive or not, to third States;

[59] BIa kicks in the moment there is an ‘international element’, whether the competition between courts is between EU Member States courts or third State courts (reference to IRNova which however at this point had itself referred to Owusu: Owusu rules! ) and [61] in principle a Member State court may well have jurisdiction on the basis of A4 BIa, like precisely in Owusu[ [67] the Court remarks that the 1974 Munich Patent Convention does not dislodge this jurisdictional finding when a third country patent is involved;

[62] ff A73 BIa may lead to alternative fora, either by way of a multilateral agreement such as the Lugano Convention, or through bilateral agreement entered into force before the Regulation; neither applies in the case at issue.

[65] finally A33-34 may lead to a stay issued by the Member State court under the conditions laid down in those Articles: again: these conditions have neither been met nor applied in the case at issue.

[70] now specifically refers to Owusu, to then [71] ponder whether the public international law principle of non-interference in other States’ domestic affairs (one assumes the English translation will use  the notion of ‘comity’) alters things. [72] ff while the EU Member State seized of the infringement claim, will also have jurisdiction to hold on the validity of the third country’s patent (and will have to exercise such jurisdiction other than in the bi-or multilateral Convention scenario, or within the confines of A33-34), such finding of (in)validity will only have effect inter partes: an erga omnes (in)validity finding can only be issued by the third State’s courts.

Conclusion [76]:

 Il ressort de l’ensemble des considérations qui précèdent qu’il y a lieu de répondre à la troisième question que l’article 24, point 4, du règlement Bruxelles I bis doit être interprété en ce sens qu’il ne s’applique pas à une juridiction d’un État tiers et, par conséquent, ne confère aucune compétence, exclusive ou non, à une telle juridiction en ce qui concerne l’appréciation de la validité d’un brevet délivré ou validé par cet État. Si une juridiction d’un État membre est saisie, sur le fondement de l’article 4, paragraphe 1, de ce règlement, d’une action en contrefaçon d’un brevet délivré ou validé dans un État tiers dans le cadre de laquelle est soulevée, par voie d’exception, la question de la validité de ce brevet, cette juridiction est compétente, en application de cet article 4, paragraphe 1, pour statuer sur cette exception, sa décision à cet égard n’étant pas de nature à affecter l’existence ou le contenu dudit brevet dans cet État tiers ou à entraîner la modification du registre national de celui-ci.

An important de lega lata finding, supported as I had discussed in my earlier posts, by many arguments. Whether the Commission may want to propose de lege ferenda other solutions, is a different call.

The case in principle applies to A24(4) only. Its reasoning however in my view extends across the A24 board.

Geert.

EU Private International Law, 4th ed. 2024, 2.217 ff.

 

https://x.com/GAVClaw/status/1894317278503543192

 

 

 

 

 

German law shall be applied to a non-contractual obligations arising out of wrongful components in ship engines built in Germany, the Norwegian Supreme Court held in a  judgment rendered on 17 December 2024. Regardless of the fact that the Rome II Regulation is not binding for Norway and that it was not applicable in the […]

In 2024, Oxford University Press published Philosophical Foundations of Private International Law, edited by Roxana Banu, Michael S Green, and Ralf Michaels. The book represents the first inter-disciplinary engagement with questions of private international law from a philosophical perspective, covers a wide range of philosophical questions in private international law and brings philosophers in conversation with private international law scholars to demystify the analytical tools of each discipline in relationship to the other. More information on the book, including a table of contents, is here.

Now, Oxford University is organizing a hybrid book launch on March 19, 4pm-6pm. An introduction from the Editors will be followed by a discussion on key themes by Gabriel Encinas, Verónica Ruiz Abu-Nigm,  Robert Stevens, Antonios Tzanakopoulos, and Emmanuel Voyiakis. More information on the event and on how to sign up for physical or virtual participation is here.

I. Introduction

The recognition and enforcement of foreign judgments in the MENA region can sometimes be challenging, as it often involves navigating complex legal frameworks (domestic law v. conventions). In addition, case law in this field has encountered difficulties in articulating the applicable guiding principles and is sometimes ambiguous, inconsistent, or even contradictory. Two recent decisions rendered by the Egyptian Supreme Court highlight this issue, alhoutgh – it must be admitted – the Court did provide some welcome clarifications. In any event, the cases reported here highlight some key issues in the recognition and enforcement of foreign judgment and offer valuable insights into the evolving landscape of this area of law in Egypt.

 

II. The Cases

 

1. Case 1: Ruling No. 12196 of 22 November 2024

a. Facts

The first case concerns the enforcement of a court-approved settlement deed (saqq) issued by a Saudi court. While the underlying facts of the case are not entirely clear, it appears that the parties involved seem to be Egyptian nationals. The original case, initiated in Saudi Arabia, concerns a claim for maintenance to be paid by the husband, ‘Y’ (defendant/respondent), to his wife and children, ‘Xs’ (plaintiffs/appellants). Before the Saudi court, the parties reached a settlement, which was recorded in a court-issued deed (saqq). Under this agreement, Y was obligated to pay a monthly alimony to Xs, with payment to be made by way of bank transfer to the wife’s account from November 2009. However, as Y failed to make the payment and returned to Egypt, Xs filed an action before Egyptian courts in 2019 to enforce the Saudi court’s settlement deed in Egypt (however, it remains unclear when Y stopped making the alimony payment or when he returned to Egypt).

The Court of first instance ruled in favor of Xs. However, the decision was overturned on appeal. Xs then appealed to the Supreme Court. According to Xs, the court of appeal refused to enforce the Saudi court’s settlement deed on the grounds that it violated Islamic sharia and the Constitution. This was based on the fact that Xs continued to reside in Saudi Arabia, the children had obtained university degrees and were employed—along with their mother—in Saudi Arabia, while Y had left the country after his retirement. Xs argued that, in doing so, the Court of Appeal went beyond a formal examination of the enforcement requirements and instead engaged into re-examining the substantive merits of the case.

 

b. The Court’s Ruling (summary):

The Supreme Court accepted the arguments made by Xs on the following grounds:

First the Supreme Court recalled the general principles governing the recognition and enforcement of foreign judgments in Egypt. It made a clear distinction between the “recognition” of foreign judgments and their “enforcement” and determined their respective legal regimes.

Regarding the enforcement of the Saudi court-approved settlement deed, the Supreme Court considered that the deed in question was “a final judicial decision rendered by a competent judicial authority, in the presence of both parties and after they were given the opportunity to present their defense”. Accordingly, such a judgment should be given effect in accordance with the conditions and procedures specified by Egyptian law (Arts. 296~298 of the Code of Civil Procedure (CCP)). If these conditions are met, Egyptian courts are required to declare the foreign judgment enforceable; otherwise the courts’ role is limited to rejecting enforcement, without reassessing the substantive reasoning of the foreign judgment. The Court concluded that Court of appeal had gone beyond its authority by failing to adhere to the above principles and instead re-examined the judgment’s reasoning.

 

2. Case 2: Ruling No. 2871 of 5 December 2024

a. Facts

The second case concerns the enforcement of a Kuwaiti money judgment. Here, too, the underlying facts of the case are not entirely clear. However, it appears that the dispute involved a Kuwaiti company, ‘X’ (plaintiff/respondent), and an Egyptian national ‘Y’ (defendant/appellant).

X initiated a lawsuit against Y in Kuwait, seeking the payment of a certain amount of money. Based on the arguments submitted by Y, it seems that by the time the lawsuit was filed, Y had already left Kuwait to return to Egypt. X prevailed in the Kuwaiti lawsuit and then sought to enforce the Kuwaiti judgment in Egypt.

The court of first instance ruled in favor of X and this decision was upheld on appeal. Y then appealed to the Egyptian Supreme Court. Before the Supreme Court, Y contested the lower courts’ rulings on the ground that he was not properly summoned in the original Kuwaiti case, as the notification was served to the Public Prosecution in Kuwait, despite his having already left Kuwait before the lawsuit was filed.

 

b. The Court’s Ruling (summary):

The Supreme Court accepted Y’s argument on the following grounds:

The Court first recalled that proper notification of the parties is a fundamental requirement for recognizing and enforcing a foreign judgment, that is explicitly stated in Article 298(2) of the Egyptian CCP and Article 27(3) of the 2017 Judicial Cooperation Agreement between Egypt and Kuwait. The Court also referred to Article 22 of the Egyptian Civil Code (ECC), according to which procedural matters (including service of process) are governed by the law of the country where the proceedings take place.

The Court then observed that, although Y had already left Kuwait before the lawsuit was filed, the Court of Appeal ruled that the service was valid under Kuwaiti law. However, the Supreme Court emphasized that, according to Kuwaiti CCP, a summons must be served to the defendant’s last known address, workplace, or residence, whether in Kuwait or abroad. This law also addresses situations where the defendant has or has not a known domicile abroad. Since Y had left Kuwait, the lower court should have verified whether the notification complied with these requirements. The Supreme Court concluded that the lower courts had incorrectly relied on notification via the Kuwaiti Public Prosecution without confirming whether this method met the requirements established by Kuwaiti law for notifying defendants abroad.

 

III. Comments

The reading of the two cases leaves a mixed impression.

 

i. On the hand, one can appreciate the general framework outlined by the Supreme Court in both decisions. Notably, in the first case, the distinction between recognition and enforcement of foreign judgments is noteworthy, as Egyptian courts have reached divergent conclusions on whether the “recognition” of foreign judgments can operate independently from their “enforcement” (for the situation in the UAE, which has a similar legal framework, see here).

Moreover, the Supreme Court’s reaffirmation of the principle of prohibition of révision au fond is also commendable. Although the principle is generally accepted in Egyptian law, what sets this case apart is that the Court did not merely affirm a general principle, but it actively overturned the appealed decision for violating it.

In the second case, the Court’s correct reference to the applicable convention is particularly noteworthy, given that it has failed to do so in some previous cases (for a general overview, see my previous post here).

 

ii. On the other hand, the Court’s approach in both cases raise certain questions, and even doubts.

a) Regarding the first case, one may question the applicability of the Court’s general stance to the specific issue addressed. It should be noted that the case concerned the enforcement of a court-approved settlement deed, which is the equivalent to a “judicial settlement” (sulh qadha’i – transaction judiciaire) under Egyptian law. While foreign judicial settlements can be declared enforceable in Egypt (Article 300 of the CCP), they do not constitute – contrary to the Court’s affirmation – “final judgments” per se, and therefore, do not carry res judicata effect, which – if recognized – would preclude any review of the “merits”. The Court’s reasoning appears difficult to justify given the longstanding position of Egyptian courts that judicial settlements lack res judicata effect and that the fact that they are approved by the court has no implication on their characterisation as “settlements” (and not decisions). This is because, while judicial settlements involve the intervention of the court, the court’s involvement is not based on its adjudicative function but rather serve a probative purpose. The Court’s failure to acknowledge this distinction is particularly striking in light of the established case law.

It is also regrettable that the Supreme Court failed to apply the correct legal framework. Indeed, both Saudi Arabia and Egypt are contracting states of the 1983 Riyadh Convention, and the case falls within its scope of application. This is particularly relevant given that the 1983 Riyadh Convention explicitly prohibits any review of the merits (Article 32), and – unlike, for example, the 2019 HCCH judgments Convention (Article 11) – allows for the “recognition” of judicial settlements (Article 35).

Finally, doubts remain as to whether the Supreme Court was justified in overturning the appealed decision for allegedly engaging in a prohibited révision au fond, or whether the Court of Appeal’s approach can be considered a review of the merits at all. It should be noted that the settlement was reached in 2009, while the enforcement lawsuit was filed as decade later. Moreover, Y argued that his children had already graduated from university and were employed in Saudi Arabia. Taking this significant change of circumstances into account should not necessarily be regarded as a “review of the merits”, but rather as a legitimate consideration in assessing whether enforcement remains appropriate. Therefore, such a change in circumstances could reasonably justify at least a partial refusal to enforce the Saudi court-approved settlement deed.

 

b) With respect to the second case, the Supreme Court’s stance to overturn the appealed decision on the ground that the court of appeal failed to confirm whether the service complied with the requirements established by Kuwaiti law for notifying defendants has a number of drawbacks. Two main issues arise from this position:

(1) One might question how Egyptian judges could be more qualified than Kuwaiti judges in applying their own procedural rules, especially if it is admitted that Kuwaiti procedural law is applicable (article 22 of the ECC).

(2) The Court overlooked that the 2017 Egyptian-Kuwaiti Convention, which it explicitly cited, contains a chapter specifically dealing with service of process (Chapter II). Therefore, the validity of the service should not be evaluated based on Kuwaiti procedural law, as the Court declared, but rather in accordance with the rules established by the Convention, as the Supreme Court itself had previously ruled (see the cases cited in my previous post here) . Given that this Convention is in force, there was no need to refer to domestic law, as – according to Egyptian law – when an international convention is applicable, its provisions take precedence over conflicting national laws (Article 301 of the CCP), a principle that has been repeatedly confirmed by the Supreme Court itself on numerous occasions.

by Faidon Varesis, University of Cambridge

Background

The dispute in the UniCredit v. RusChem saga arose from bonds issued by UniCredit to guarantee performance under contracts for Russian construction projects, where RusChem, after terminating the contracts due to EU sanctions, initiated Russian proceedings for payment in breach of an English-law governed arbitration agreement that mandates resolution in Paris under ICC rules.

UniCredit sought an anti-suit injunction in the UK to stop these Russian proceedings, arguing that the arbitration clause must be enforced under English law. Teare J at first instance held that the English court lacked jurisdiction—finding that the arbitration agreements were governed by French substantive rules and that England was not the appropriate forum—whereas the Court of Appeal reversed this decision by granting a final anti-suit injunction requiring RCA to terminate its Russian proceedings.

The November 2024 UK Supreme Court’s Decision

The Supreme Court addressed the sole issue of whether the English court had jurisdiction over UniCredit’s claim by examining (i) whether the arbitration agreements in the bonds were governed by English law (the Governing Law issue) and (ii) whether England and Wales was the proper place to bring the claim (the Proper Place issue). Ultimately, the Supreme Court upheld the Court of Appeal’s decision, reaffirming that the arbitration clause is governed by English law and that England is the proper forum to enforce the parties’ agreement, thereby confirming the English courts’ willingness to restrain foreign proceedings brought in breach of such arbitration agreements.

Importantly for the present note, the Supreme Court, in the last paragraphs of the November 2024 decision, also considered (as part of its discretion) the availability of similar relief from the arbitral tribunal or the French courts (as courts of the seat). The Court explained that arbitration awards lack the coercive force of court orders—they merely create contractual obligations without enforcement powers such as contempt sanctions—so relying on arbitration to restrain RusChem would be ineffective. Evidence at trial showed that French courts would not have the authority to enforce any arbitral order preventing RusChem from pursuing Russian proceedings. Furthermore, such an award would also be unenforceable in Russia. Consequently, the Court concluded that neither the French courts nor arbitration proceedings would provide an effective remedy, and that England and Wales is the proper forum to enforce UniCredit’s contractual rights through an anti-suit injunction.

Parallel Proceedings in Russia and the Grant of an Anti Anti-Suit Injunction

The English anti-suit injunction was instigated by proceedings brought by RusChem against UniCredit in the Russian courts, seeking €448 million under the bonds. The jurisdiction of the Russian courts was established despite the French-seated arbitration clause, as Russia had enacted a law that confers exclusive jurisdiction on Russian Courts over disputes arising from foreign sanctions. In November 2023, the Russian courts dismissed UniCredit’s application to dismiss the claim, ruling that the dispute falls under the exclusive competence of the Russian courts, though the proceedings were stayed pending the outcome of the anti-suit proceedings in England.

Later in 2024, RusChem was successful in getting the Russian courts to seize assets, accounts, and property, as well as shares in two subsidiaries of UniCredit in Russia amounting to €462 million.

RusChem had initially committed to being bound by the final injunctive relief of the English court and to respecting its orders, but following the UK Supreme Court’s decision of November 2024, RusChem secured a ruling from the Russian courts on 28 December 2024. This ruling—effectively an anti anti-suit order—restricted UniCredit from initiating arbitrations or court proceedings against RusChem over the bonds outside the Russian courts, and prevented any ongoing proceedings or judgment enforcement outside of Russia, while also mandating that UniCredit take all necessary steps to cancel the effects of the English court’s order within two weeks of the ruling coming into force, failing which UniCredit would have faced a court-imposed penalty of €250 million.

The February 2025 Court of Appeals Decision

UniCredit applied to the English courts, seeking a variation of the order it had finally secured just a few months earlier. The Court of Appeal considered that UniCredit faced a real risk of incurring a substantial financial penalty if the English injunction remained in force, given the Russian court’s ruling that could impose a €250 million penalty. In addition, the Court of Appeal examined whether UniCredit had been effectively coerced into making the application by RCA’s actions in obtaining a ruling in Russia, and whether that coercion should weigh against granting the application. The Court concluded that, while the declaratory parts affirming the English court’s jurisdiction should remain, the injunctive components should be varied. In fact, the Court of Appeals was very cautious in saying in the last paragraph of the decision [44]: ‘I have decided that I would vary, not discharge, the CA’s Order. It seems to me that it would be unsatisfactory to discharge the parts of the order that reflect the decisions on jurisdiction made by the Court of Appeal and the UKSC. There is no need to do so. Under English law, this court did indeed have jurisdiction to determine what it determined and its final order reflecting that decision must stand’.

Comment

This case underscores a critical point: the effectiveness of an anti-suit injunction can shift dramatically depending on the defendant’s asset base and geographic ties. When the Supreme Court decided to confirm the English courts’ jurisdiction in such cases, it considered whether an equivalent remedy from French courts or the arbitral tribunal would be effective (and ruled them ineffective), but it did not consider the effectiveness of the English remedy itself.

Anti-suit injunctions from English courts have long been hailed as a powerful weapon. However, where the defendant has no assets or connections with England, the practical effectiveness—the “bite”—of such remedies is extremely limited, rendering the injunction “toothless.” By contrast, when the English applicant has assets in another jurisdiction—especially one where local courts, such as the Russian courts, are prepared to issue countervailing anti anti-suit injunctions backed by substantial penalties—the balance can swiftly tilt, obliging the applicant to seek the revocation of the order it obtained in the first place.

In a broader sense, this dynamic highlights the interplay between different jurisdictions’ willingness to grant anti-suit injunctions, potentially leading to a spiralling effect of competing orders—so-called “injunction wars”—that impose significant strategic and economic burdens on litigants. Ultimately, it is clear that the location of assets and the readiness of local courts to enforce relief with penalties determines just how strong the bite of an anti-suit injunction truly is.