Droit international général

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

Like all my posts, this post is entirely AI free.

In Case C-771/24 Hortis (in full Hortis GRC SA v JA, France Travail Île-de-France, formerly Pôle emploi Île-de-France) the CJEU held yesterday on the application of A6 Rome Convention, now A8 of the Rome I Regulation, as to the application of that Article’s ‘proper law of the contract’ approach. It generally follows an approach which IMO is consistent with the statutory language.

JA was employed as a ‘director’ by the Swiss IT company Hortis and was fired in 2012. JA lives in France and carried out his professional activities in France during the performance of the employment contract. The parties agreed that Swiss law would be the lex contractus.

Jurisdiction for the French courts (one assumes in accordance with the Lugano Convention; the proceedings were initiated prior to the entry into force of Brussels Ia, which dropped the requirement for the employer to be EU-domiciled for the employment title to kick in) was an issue in the lower courts but it is not part of the procedure before the CJEU.

The Court of Appeal held that French law, as the default law under Article 6 of the Rome Convention, trumps the Swiss lex voluntatis, because it is more protective of the employee: Swiss law lacks the requirement for a pre-dismissal meeting between employer and employee, and the requirement for a letter of dismissal to include a statement of reasons.

Appeal to that decision is now before the French Supreme Court. Authorities referred to in the referral decision of course include CJEU Schlecker and Joined cases C-152/20 (Gruber Logistics) and C-218/20 (Samidani Trans).

The core of the French Supreme Court’s doubt focuses on the ‘escape clause’ of Article 6, in fine, Rome Convention, now Article 8(4) of the Rome I Regulation [as the CJEU notes [30] Rome I’s “structure reflects the EU legislature’s intention to clarify, by using separate paragraphs, the different steps of the reasoning to be followed by national courts in order to determine the applicable law in the absence of a choice made by the parties”].

In the Rome Convention the text reads

.’..unless it appears from the circumstances as a whole that the contract is more closely connected with another country, in which case the contract shall be governed by the law of that country.’

The SC doubts whether the court seized must determine closer connections with the country of the lex voluntatis and, if so, disregard the rules of French
law which the employee seeks to have applied and which afford greater protection than those of the law chosen by the parties. The CJEU formules the doubt rather sharper in its judgment [30] than the SC did in its referral:

The referring court harbours doubts  as to the application of the mandatory rules of French law, which afford greater protection than those of Swiss law, in the light of the circumstances of the dispute before it, in which, first, Hortis and JA expressly chose Swiss law as the law governing the contract of employment at issue in the main proceedings and, secondly, JA habitually carried out his work in France. In that regard, it seeks to ascertain whether, pursuant to the last limb of Article 6(2) of the Rome Convention, it is required to examine whether that contract is more closely connected with Switzerland, taking into account also the connections resulting, in the performance of that contract, from the parties’ choice of the law applicable to it. If so, it enquires whether it must disregard the rules of French law.

In essence therefore, may nay must the escape clause set aside the more protective default law in favour of the chosen law, in those cases where it appears from the circumstances as a whole that the contract is more closely connected with the country of the chosen law?

The CJEU of course connects the issues, as it did viz the consumer title in ia VK v N1 Interactive, to the twin if sometimes competing objectives of predictability /legal certainty v protection of the weaker parties.

[33] it suggests it had actually already held on the question in CJEU Locatrans:

in paragraph 63 of its judgment of 11 December 2025,  Locatrans (C‑485/24, EU:C:2025:955), the Court held that ‘it is thus for the referring court to determine whether, in accordance with the last limb of Article 6(2) of the Rome Convention, it follows from all of the circumstances that the contract of employment at issue in the main proceedings is more closely connected with France than with Luxembourg, the law of which was chosen by the parties as the law applicable to that contract’. It follows that the Court has expressly recognised that that provision may require the referring court to give priority to the law chosen by the parties as the law applicable to the contract of employment concerned, where that contract is more closely connected with the country the law of which was thus chosen.

[36] therefore the Court’s formal finding is that

the last limb of Article 6(2) of the Rome Convention must be interpreted as meaning that, where the parties have chosen the law applicable to the contract of employment, national courts must give priority to that law by disregarding the mandatory rules, affording greater protection, of the law which the employee seeks to have applied and which would be applicable, in the absence of choice, under Article 6(2)(a) and (b), if, in the light of the circumstances as a whole, that contract of employment is more closely connected with the country the law of which was chosen by the parties as the law applicable to that contract.

[41] in determining the ‘proper law of the contract’, the ‘circumstances as a whole’ clearly do not rule out the lex voluntatis as a relevant factor.  [42] legal certainty is pushed as an important consideration of Rome Convention cq Regulation. [43] I think is slip-up:

Thus, the choice, made by the parties to a contract of employment, of the law applicable to that contract is not, in itself, a factor which may be taken into account in order to determine whether the contract is more closely connected with a country other than that in which the employee concerned habitually carries out his or her work or that of the place of business through which he or she was engaged. (emphasis added)

The better formulation is included in the operative part and in [45]

In order to ensure that the law of the country which best reflects the reality of the contractual relationship between the parties to a contract of employment governs that relationship, account must be taken of all the objective elements which define such a relationship, including those resulting from the choice, made by the parties to that contract, of the law applicable to it.

The balance between the various factors must be struck by the national court and in making that assessment, it is instructed to look at the actual presence of true consent (which of course the Regulation generally assumes is absent for the protected categories): [46]:

..in the context of that overall assessment, the weight attached to each of the elements of the employment relationship concerned may differ. It thus falls to the national court to weigh up, on the basis of their importance and relevance, each of the elements put before it and to assess which of them appears to be the most significant, irrespective of their number. In that respect, in order to guard against the employer misusing the connecting factors of the employment contract, the national court must examine, inter alia, whether those factors are the result of mutual agreement or whether they were imposed on the employee by the employer.

Of final note is that the CJEU finding here puts into the spotlights once again the absence of a ‘proper law of the contract’ approach /absence of an escape clause in the consumer title of Rome I.

A judgment of note.

Geert.

EU Private International Law, 3.39 ff.

 

The world is experiencing a growing number of interconnected crises. Armed conflicts, democratic backsliding, climate change, and human rights violations in global supply chains increasingly transcend national borders and expose the limitations of legal systems designed primarily within territorial frameworks. Private international law, traditionally perceived as a technical and neutral discipline, is therefore confronted with […]

At the recent Geneva Conference, EAPIL’s members were called to elect new officers to serve on the Board and the Scientific Council of the Association until 2030. Congratulations and thanks to the fellow members who will take over from the previous governance. Board of Administration Agnieszka Frackowiack-Adamska, President Agnieszka is a professor at the Department of […]

 

Professor Christopher F. Forsyth is undoubtedly one of the leading figures in private international law in Africa, particularly in Southern Africa, where his scholarship has had a profound and lasting influence. His seminal work, Private International Law – The Modern Roman-Dutch Law Including the Jurisdiction of the High Courts (5th ed., Juta, 2012), is not only an indispensable reference for scholars and researchers, but also an authoritative work before Southern African courts, where it is frequently cited with approval.

 

It is therefore a great pleasure to bring to readers’ attention the publication of the Festschrift in honour of Professor Forsyth, celebrating his remarkable scholarly legacy: Commercial Private International Law in Southern Africa – Comparative and International Perspectives: Essays in Honour of Professor Christopher F. Forsyth KC, edited under the able guidance of Professor Jan L. Neels and Professor Easa A. Fredericks, with the assistance of Dr Solomon Okorley. Thanks to the generosity of the editors and the approval of the publisher, UJ Press, the volume is available in open access, making this outstanding collection of essays freely accessible to readers around the world.

 

The book’s blurb reads as follows:

This book contains a collection of essays in honour of Professor Christopher F Forsyth KC, emeritus Sir David Williams Professor of Public Law, sometime Professor of Private International Law, and Life Fellow of Robinson College, University of Cambridge.

The essays focus on Professor Forsyth’s contribution to the development of commercial private international law in Southern Africa, particularly through his monograph Private International Law. The Modern Roman-Dutch Law (five editions between 1981 and 2012). This standard text is authoritative in Botswana, Eswatini, Lesotho, Namibia, South Africa, Sri Lanka and  Zimbabwe.

The essays are written from a variety of comparative and international perspectives, but all focus on the further development of commercial private international law in the Southern African region. The authors are from Austria, Belgium, Botswana, Canada, China, the Democratic Republic of the Congo, Germany, Ghana, Japan, Malawi, Mauritius, the  Netherlands, New Zealand, Nigeria, Portugal, South Africa, Switzerland, Tunisia, the United Kingdom and the United States of America.

 

One aspect of Professor Forsyth’s scholarship that I have found particularly stimulating is his emphasis on the “comparative ethos”, including his observation that English courts do not engage sufficiently in what he called “comparison as virtue” (CF Forsyth, “The Value of the Comparative Ethos to the Judicial Process in the Conflict of Laws”, in C. Visser (ed.), Essays in Honour of Ellison Kahn (Juta, 1989), 154). Equally noteworthy is his emphasis on the theoretical foundations of private international law and his commitment to pursuing the objective of decisional harmony, an objective that, regrettably, seems to have been relegated to the background in more recent years. This is particularly reflected in his frequent citation of a remarkable passage from Professor Otto Kahn-Freund’s General Problems of Private International Law (1976), 323–324 (also published in Collected Courses of the Hague Academy of International Law, 1974-III, 469–470), a passage that appears to serve as a reminder of one of the primary objectives of private international law:

 “The pursuit of harmony is the principal task of those who make it their concern to think about private international law …. An immense intellectual effort has been invested in this discipline for many centuries. If any result commensurate with this effort is ever to be achieved, a clear vision of the ideal of harmony must be combined with an equally clear insight into the social facts which will ever prevent it from being attained. Only those advance society – this is a commonplace – who combine the qualities of Don Quixote with those of Sancho Panza. Many will never be able to see more than a tilt at windmills …. Sometimes they may even be right. But one hopes that there will always at least be some who can see that these hazards are giants of injustice, and who will, as best they can, try to overcome them.”

 

Readers will also greatly enjoy the heartfelt tributes paid to Professor Forsyth in Part I (Laudatio) and Part II (Personal Reflections). These chapters highlight many dimensions of his outstanding contribution to legal scholarship while sharing personal anecdotes that reflect not only his enduring academic legacy but also his warmth, generosity, and cheerful personality.

 

The table of contents include the following:

 

Preface

Redson Edward Kapindu

 

Part I: Laudatio

The Contribution of Professor Christopher F Forsyth KC to the Development of Southern African Private International Law: A career in a world of influence rather than power

Jan L Neels, Eesa A Fredericks

 

Part II: Personal Reflections

 

Tribute to Christopher Forsyth

Tom Bennett

 

Gulliver’s (Conflicts of Law) Travels: The Act of State Doctrine as a Source of Private International Law in Canada and South Africa

George Douvelos

 

A Time to Remember

Rajendra Parsad Gunputh

 

“Our England is a Garden”: Some Reflections on Christopher Forbes Forsyth in Cambridge

Ivan Hare KC

 

Christopher Forsyth’s Links to an African University

Letlhokwa George Mpedi

 

Personal Tribute to Christopher Forsyth

Nicola Peart

 

Christopher Forsyth: A Good Friend and a Man of Many Talents

J T Pretorius

 

A Diceyan Contribution to Scholarship across Fields and Continents: A Personal Tribute to the Work of Christopher Forsyth

Geo Quinot

 

Reflections on the Conceptual Reasoning of Christopher Forsyth

Johann Schiller

 

Christopher Forsyth: An Outsider’s View

James Weinstein

 

An Unforgettable and Beautiful Memory of Professor Forsyth

Weidong Zhu

 

Part III: Academic Essays

 

Party Autonomy in South African Private International Law: A Comparison with Article 2 of the Hague Principles on Choice of Law in International Commercial Contracts

Faadhil Adams

 

Expanding Jurisdiction for Fundamental Rights Violations by Businesses: South African Law and the Role of an International Treaty

David Bilchitz

 

Tacit Choice of Law in International Commercial Contracts: The Position in Ghanaian, Kenyan, Nigerian and South African Private International Law

Garth J Bouwers

 

The African Principles and Mauritian Private International Law: What Lessons to be Learned?

Robin Cupido

 

The Law Applicable to Arbitrability in Lusophone Legal Systems

Rui Dias

 

Developing the Forum Non Conveniens Doctrine in South African Law: A Comparative Perspective

Sieg Eiselen

 

The African Principles on the Law Applicable to International Commercial Contracts: Proposal to Include a Provision on the Ex Officio Application of the Foreign Law

Beligh Elbalti

 

Enforcing Trade-Related Contractual Claims in South Africa

Gerhard Erasmus

 

Contractual Capacity in South African Private International Law

Eesa A Fredericks

 

Mixed Dispute Resolution Clauses in International Commercial Transactions

Daniel Girsberger

 

From Louisiana, to India, to Africa: The Strange Journey of India’s Foreign Judgments Rules

Christopher Jenkins

 

Reforming Party Autonomy in African Private International Law: The Need for Clear and Effective Exceptions

John Kiggundu

 

Jurisdiction in International Civil Cases: How Many Links are Enough?

Thalia Kruger

 

The IncotermsR 2020 by the International Chamber of Commerce (ICC): Evolution and Practical Application with Specific Reference to Containerisation

Michael G Martinek, Eesa A Fredericks

 

Unmitigated Exorbitance of Assumed Jurisdiction under Malawian Private International Law

Richard Mlambe

 

Direct International Jurisdiction under OHADA Law

Justin Monsenepwo

 

Novel Aspects of the Proposed African Principles on the Law Applicable to International Commercial Contracts

Jan L Neels

 

Commercial Private International Law in Mozambique, Angola and Beyond: The Portuguese-Speaking States in Southern Africa Compared to Brazil

Carl Friedrich Nordmeier

 

The Sheriffs and Civil Processes Act Does Not Apply to the National Industrial Court of Nigeria

Chukwuma Samuel Adesina Okoli

 

Reforming Private International Law in African Countries: Looking Inward and Outward

Richard Frimpong Oppong

 

Arbitration, Court Adjudication or Via Media?: The Eruption of Hybrid Bodies for the Resolution of International Commercial Disputes – A Path for Southern Africa?

Marta Pertegas Sender

 

Prospects and Options for Recovery of “Heritage Art” in the Oeuvre of Irma Stern

Christa Roodt

 

Forum Selection Clauses and the Waning Legacy of The Eleftheria

Genevieve Saumier

 

Online Defamation in the Conflict of Laws

Sierd J Schaafsma

 

The Spiliada in South Africa: Sailing into the Future

Elsabe Schoeman

 

The New South African International Arbitration Act: Signalling the End of the Road for the Protection of Businesses Act?

Marlene Wethmar-Lemmer

 

Part IV: In Memoriam Professor Christian Schulze

Jan L Neels, Eesa A Fredericks

 

Part V: African Principles on the Law Applicable to International Commercial Contracts

 

African Principles on the Law Applicable to International Commercial Contracts

Jan L Neels

 

Arabic Translation of the African Principles on the Law Applicable to International Commercial Contracts

Jan L Neels, translated by Beligh Elbalti

 

Arabic Translation of the African Principles on the Law Applicable to International Commercial Contracts (with references)

Jan L Neels, translated by Beligh Elbalti

 

Part VI: List of Publications by Prof C F Forsyth

Compiled by Jan L Neels, Solomon Okorley

 

Photo Section

By order No. 5656/2026, the First Civil Chamber of the Italian Supreme Court referred to the Joint Chambers (Sezioni Unite) a question of “particular importance” concerning the recognition in Italy of children born abroad through surrogacy. More specifically, the Court asked whether the legislative model governing the recognition of children born from incestuous relationships may […]

Recently, a decision of the German Federal Court of Justice (Bundesgerichtshof or BGH) was published on the recognition of a judgment in a case of international surrogate motherhood. An unmarried German woman had entered into a surrogacy arrangement in Mexico City. Unlike in previous cases decided by the court, donated eggs and donated sperm were […]

In this post, Julie Esquenazi (University of Paris 1 Panthéon Sorbonne) presents the key findings of her doctoral thesis, recently published with Bruylant Larcier Intersentia on Equality of Arms in Cross-Border Civil Litigation. The research aims at analysing and determining whether and to what extent European rules of international jurisdiction effectively ensure equality of arms. […]

Registration is now open for the already announced conference on “International Filiation Law in the EU” dealing with questions of filiation law resulting from the EU Parenthood Proposal. More information and the registration link can be accessed at the website of the conference. Registration is esp. important for the conference dinner as spots are limited and will be provided on a first come basis.

Everybody interested in legal questions of cross-border filiation is welcome. More information can be found at this website. Participation is free, but registration will be required (esp. for the dinner, see above). Any further inquiries can be directed to international.filiation (a) jura.uni-bonn.de.

(c) Lannert, Uni Bonn

The Conference International Filiation Law in the EU Programme reads:

Day 1: 24.09.2026

13:00

Martin Böse, Dean of the Law Faculty, University of Bonn: Welcome Address
Susanne Gössl, University of Bonn: Introduction
Ilaria Pretelli, Swiss Institute for Comparative Law: The EU Commission’s Parenthood Proposal (Overview)

14:15

Ulrike Kjestina Janzen, German Federal Ministry of Justice and Consumer Protection: The Commission’s Parenthood Proposal – Considerations and Policy Interests and Expectations from a Member State’s Perspective
Alina Tryfonidou, University of Cyprus: Filiation and EU Primary Law: The Portability of the Parent-Child Status in CJEU Case-law

15:00

Velina Todorova,  University of Plovdiv & Ilaria Pretelli, Swiss Institute for Comparative Law: The Human Rights Frame in International Filiation Law (1): The Rights of the Child, esp. the Right to Know One’s Origins
Rachele Zamperini, Swiss Institute for Comparative Law: The Human Rights Frame in International Filiation Law (2): LGBTIAQ* Rights and Women’s Rights

16:45

Patrick Wautelet, University of Liège: Many Faces of Birth Certificates in International Filiation Law
Nicolas Nord, ICCS: Filiation Certificate and a Central Registry in the EU

Day 2: 25.09.2026

09:30

Laima Vaige, University of Uppsala: Scope of the EU Parenthood Proposal and Relationship to Other International and EU Instruments
Cristina González Beilfuss, University of Barcelona: Which Rules of Jurisdiction for International Filiation?

11:15

Martina Melcher, University of Graz: How Should the Law Governing International Filiation be Determined?
Susanne Gössl, University of Bonn: Recognition of Court Decisions and the Public Policy Exception in International Filiation Law

12:30

Final Remarks and Conclusions

This post was contibuted by Mathilde Mathilde Codazzi-Nodet, who is a PhD candidate at Paris II Panthéon-Assas University. On 3rd July 2026, in two major decisions, the plenary assembly (assemblée plénière) of the French Supreme Court (Cour de cassation), its most solemn chamber which includes the president of the court and the president of all […]

We are delighted to welcome two new editors to the Blog’s Editorial Board.

Janaína Albuquerque Azevedo Gomes is an attorney admitted in Brazil and Portugal focusing on international family law. She has experience across numerous countries and sectors, including the Brazilian government and the Hague Conference on Private International Law (HCCH).

Gustavo Ferraz de Campos Monaco is professor of private international law at the University of São Paulo, where he works at the intersection of private international law and general legal theory.

We are looking forward to their contributions.

On 8 July, King&Spalding will be hosting a webinar on the new ICC Arbitration Rules, which entered into force last month.

The webinar will feature contributions from multiple members of the firms arbitration practice as well as a Q&A.

More information and an option to register can be found here.

This post was written by Birgit van Houtert (Assistant Professor, Maastricht University) and Marco Pasqua (Examiner, Catholic University of the Sacred Heart of Milan), co-Chairs of the EAPIL Working Group on Anti-SLAPP Directive Transpositions as report of the Working Group’s fourth meeting. This post follows up on the report (Part I). The fourth meeting of […]

This post was written by Birgit van Houtert (Assistant Professor, Maastricht University) and Marco Pasqua (Examiner, Catholic University of the Sacred Heart of Milan), co-Chairs of the EAPIL Working Group on Anti-SLAPP Directive Transpositions as report of the Working Group’s fourth meeting. On 4 June 2026, the EAPIL Working Group on Anti-SLAPP Directive Transpositions held […]

On 8 September 2026 Andrea Bonomi and the Centre for Comparative, European and International Law of the University of Lausanne are organizing a conference titled „Wills substitutes” in comparative and private international law.

Speakers include: Michael W. Galligan (New York), Edward Reed (London) and Jeffrey Talpis (Montreal), Charlotte Wendland (Munich), Sophie Lambert (Aix-Marseille), François Derème (Mons), Angelo Chianale (Turin), Francesco Schurr (Liechtenstein) and Julien Perrin (Lausanne).

Discussions will be held partly in French and partly in English.

The full programme is available here.

Participants may join onsite in Lausanne or online. The registration form can be found here. University scholars may contact the organizer for discounted rates (at andrea.bonomi@unil.ch).

This note has been co-authored with Dr. Samuel Vuattoux-Bock, LL.M. (Kiel). It is based on a legal expert opinion for White and Case LLP, Frankfurt. A more comprehensive version – in German – is forthcoming in the Zeitschrift für Internationales Wirtschaftsrecht (IWRZ).

 

I. Introduction
International enforcement regarding the performance of actions that may be taken by others pursuant to Section 887 of the German Code of Civil Procedure (ZPO) raises complex questions within the Brussels Ibis Regulation. These issues concern the correct classification of such enforcement measures, the legal status of a third-party debtor in the context of the enforcement of monetary claims, and potential grounds for refusing enforcement that may arise with respect to international jurisdiction and any defects in service of process. Currently, French courts are seized of the question as to whether a German judgment—in which the German creditor of a Russian debtor was awarded an advance on costs pursuant to Section 887(2) ZPO—can be fully enforced in France by means of a garnishment order directed against a French third-party debtor.

II. The facts of the case
The Creditor (C) is Germany’s largest gas importer and supplies energy providers as well as major industrial customers nationwide with gas. Pursuant to long-term contracts, it sources a significant portion of its imports from the Debtor (D), a company belonging to a corporate group controlled by the Russian state. The agreed place of delivery in each instance was located in Bavaria. However, on June 14, 2022, D largely suspended its gas deliveries to C. On July 22, 2022, the Regional Court of Weiden ordered D to continue supplying C with gas for a further three months. The Regional Court rejected a motion filed by C seeking authorization to have the existing contracts fulfilled by a third party of its choice. Following an immediate appeal lodged by C, the Higher Regional Court (OLG) of Nuremberg issued a ruling on September 12, 2022, authorizing C to have the performance owed by D—within the scope of fulfilling the contracts concluded between the parties—rendered by a third party of C’s choice at D’s expense; furthermore, pursuant to Section 887(2) ZPO, the Court ordered D to make an advance payment to cover the costs incurred in rendering said performance. Subsequently, on November 17, 2022, the Higher Regional Court of Nuremberg issued a certificate regarding this decision pursuant to Art. 53 of the Brussels Ibis Regulation, in which the order for the advance payment was classified as a decision on the substance of the matter (Field 4.6.1). On May 9, 2023, C initiated the garnishment of claims held by D against a French third-party debtor (F) in order to recover a partial amount of the advance payment owed by D. Notice of this attachment was served upon D on May 17, 2023, by means of a letter addressed to the competent authority of the Russian Federation, pursuant to the Hague Service Convention; a copy thereof was sent via registered mail with return receipt requested. On December 21, 2023, F filed a lawsuit against C before the Tribunal Judiciaire de Nanterre seeking the lifting of the measures taken against it. This lawsuit was dismissed on December 20, 2024. D subsequently lodged an appeal against this decision with the Cour d’appel de Versailles, which was granted on January 8, 2026. Cassation proceedings are currently pending before the Cour de Cassation.

III. Enforcement by Substitute Performance
The compulsory enforcement of claims requiring an act, toleration, or forbearance is governed under German law by Sections 887 et seq. ZPO. These provisions apply to all acts that do not relate to the settlement of a monetary claim, the surrender of a specific object, or the submission of a declaration of intent. Specifically, a distinction is drawn between actions that may be taken by others—to which Section 887 ZPO applies—and actions where this is not the case, the enforcement of which is governed by Section 888 ZPO. Actions may be taken by others if they can be performed not only by the debtor personally but also by a third party. This clearly applies to the gas deliveries at issue in the present case. In such instances, the creditor is not compelled to force the debtor personally to render the performance owed. Rather, pursuant to Section 887(1) ZPO, the creditor may apply to the court of first instance for authorization to have the act performed by a third party at the debtor’s expense. Concurrently, the creditor may request that the debtor be ordered to make an advance payment to cover the costs that will be incurred in performing the act (Section 887(2) ZPO). In the case at hand, the OLG Nuremberg granted such an advance payment of costs to the creditor.

IV. A “judgment” within the meaning of Art. 2(a) of the Brussels Ibis Regulation
“Judgments” within the meaning of Art. 2(a) of the Brussels Ibis Regulation—as distinguished from mere enforcement measures—are characterized by the fact that they do not yet result in the final satisfaction of the creditor but rather still require compulsory enforcement. Already in 2009, the Federal Court of Justice (BGH) held that the granting of an advance on costs pursuant to Section 887(2) ZPO constituted a decision within the meaning of Art. 32 of the Brussels I Regulation, which could be recognized and enforced abroad. This view is further supported by the fact that the BGH compared the enforcement of fungible acts under Section 887(2) ZPO with the cross-border enforcement of coercive fines which today is governed by Art. 55 of the Brussels Ibis Regulation. Notwithstanding the position of Section 887(2) ZPO within German procedural law, it should be noted that the rule is structured identically to comparable obligations to make advance payments for substitute performance under substantive law (e.g., under the law of contracts for work and services). Such claims may, of course, be recognized and enforced pursuant to the Brussels Ibis Regulation. Moreover, in the well-known Realchemie case, the CJEU ruled that a decision imposing a coercive fine to enforce an obligation to act or to refrain from acting (Section 890 ZPO) may be enforced pursuant to the Brussels I Regulation. However, the distinction between Section 887(2) ZPO and Section 890 ZPO can, in individual cases, prove quite difficult. Particularly in the case of continuing obligations—such as the ongoing supply of parts or raw materials—the boundary between a substitutable act (Section 887 ZPO) and an obligation to refrain from acting (Section 890 ZPO) is fluid: depending on the wording of the operative part of the judgment, the same factual situation can be framed either as a positive obligation to perform or as an obligation to refrain from interrupting delivery, and enforced accordingly. This practical interchangeability of enforcement methods illustrates how inappropriate it would be to treat the resulting enforcement orders differently at the European level.
In addition, an argumentum a fortiori applies: since, according to the case law of the CJEU (Realchemie), an order imposing a coercive fine under Section 890 ZPO –which constitutes merely a sanction without a compensatory function – qualifies as a “judgment” within the meaning of the Brussels Ibis Regulation, then this must apply all the more to an order for an advance on costs under Section 887(2) ZPO, because the latter decision is based on a judicial assessment of the anticipated costs of substitute performance and thus qualifies as a judgment on the merits unlike a mere coercive fine. It would therefore be inconsistent to characterize a decision imposing a coercive fine as an enforceable “judgment” within the meaning of Art. 2(a)(1) of the Brussels Ibis Regulation, while denying this classification for a decision ordering an advance payment pursuant to Section 887(2) ZPO.
Nor does Art. 2(a)(2) of the Brussels Ibis Regulation preclude the classification of this ruling as a “judgment”; this provision contains specific stipulations regarding the classification of provisional measures as judgments within the meaning of Chapter III of the Brussels Ibis Regulation. Pursuant to this provision, where a decision has been rendered without the defendant having been summoned, the decision embodying the measure must have been served on the defendant prior to enforcement. In this regard, it is important to emphasize that an order to pay an advance on costs does not constitute a mere ancillary ruling to the preceding provisional injunction, but rather a procedurally independent order to pay, possessing its own distinct substantive content. In particular, following the issuance of the decision regarding the advance payment, a distinct enforcement proceeding is conducted pursuant to Section 794(1) No. 3 ZPO in conjunction with Sections 803 et seq. ZPO; this proceeding adheres to the provisions governing the enforcement of monetary claims and is independent of the enforcement of the preliminary injunction.
Furthermore, in the present case, the French courts—with regard to the classification of the Nuremberg decision as a “judgment” within the meaning of Art. 2(a) of the Brussels Ibis Regulation—must observe the binding effect of the certificate issued pursuant to Art. 53 of the Brussels Ibis Regulation, in which the decision on the advance payment was characterized as a judgment on the substance (Field 4.6.1). Art. 53 of the Brussels Ibis Regulation provides that the court of origin shall issue a certificate to enable the enforcement of the judgment in the requested Member State. This certificate confirms that the judgment is enforceable and must be submitted to the courts of the requested Member State (see, in particular, Art. 37(2), Art. 42(1)(b), and Art. 43(1) of the Brussels Ibis Regulation). In this respect, the Cour d’appel de Versailles rightly held that the classification of the decision at issue as a judgment on the merits within the meaning of Art. 2(a)(1) and Art. 39 of the Brussels Ibis Regulation may not be called into question by the French court. In order to clarify the binding nature of the Art. 53  certificate, the Federal Court of Justice recently referred this question to the CJEU. In light of the pertinent conclusions of the Advocates General in preceding cases, a positive answer is expected. As AG Bobek explained in the Salvoni case, “[t]he purpose of the Art. 53 Certificate is to authoritatively [!] state that the judgment is enforceable. […] Whereas, in the system established by [the Brussels I Regulation], production of the certificate in question was not required, it became obligatory with the entry into force of [Brussels Ibis]. That is because the new regulation, doing away with the need for an exequatur, provides for a simplified procedure based on the principle that a decision issued in a Member State should be treated as if it had been issued in the Member State addressed.” And AG Pikamäe was even more explicit in the case of J v H Limited: “[I]t is common ground that the court of origin drew up and issued the certificate on the basis of its order of 20 March 2019, which therefore falls within the scope of Regulation No 1215/2012. Under these circumstances, there is indeed, a priori, an enforceable judgment given in a Member State within the meaning of Art. 2(a) and Art. 39 of Regulation No 1215/2012 that comes within the system of direct enforcement laid down in that regulation, a factual reality that is binding upon the court addressed.”

V. The Legal Status of the Third-Party Debtor in the Enforcement of Claims
Enforcement proceedings may also—particularly in cases of attachment of claims—involve third-party debtors. In this regard, the question arises as to whether such parties can avail themselves of the mechanisms provided by the Brussels Ibis Regulation for the refusal of the enforcement of a judgment. In this context, a distinction must be drawn between the refusal of recognition (Art. 45 Brussels Ibis Regulation) and the refusal of enforcement (Art. 46 Brussels Ibis Regulation). With regard to the refusal of enforcement of a foreign judgment, Art. 46 of the Brussels Ibis Regulation stipulates: “On the application of the person against whom enforcement is sought, the enforcement of a judgment shall be refused where one of the grounds referred to in Art. 45 is found to exist.” The German version of Art. 46 is even clearer, unequivocally speaking of “an application of the debtor” (“auf Antrag des Schuldners”). The wording of this provision thus excludes third-party debtors or other interested third parties. Consequently, based on a grammatical interpretation, standing to apply is vested exclusively in the debtor—i.e., the person against whom enforcement is sought —or, where applicable, their legal successor.
The legislative history corroborates this interpretation. Already under Art. 43 of the Brussels I Regulation, all remedies that national procedural law made available to interested third parties against the authorization of enforcement were excluded. While the enactment of the Brussels Ibis Regulation did indeed abolish the requirement for exequatur—and thus the separate procedure for declaring a judgment enforceable in the requested Member State (Art. 39 of the Brussels Ibis Regulation)—this reform was intended solely to further facilitate and expedite the cross-border enforcement of claims (see Recital 26 Brussels Ibis). Conversely, this measure was not intended to expand the powers of third parties to invoke grounds for refusal of enforcement pursuant to Art. 46 of the Brussels Ibis Regulation. This is evidenced by the fact that a proposal submitted by the Spanish delegation—seeking to extend the scope of Art. 46 of the Brussels Ibis Regulation to cover “any interested party”—was not adopted during the legislative process.
Finally, when interpreted systematically, this is also confirmed by an a contrario argument based on the wording of Art. 45 of the Brussels Ibis Regulation, given that it refers there not solely to the debtor, but to “any interested party”. Since Art. 46 of the Brussels Ibis Regulation was deliberately drafted more narrowly than Art. 45 of the Brussels Ibis Regulation with regard to standing to apply, it is impermissible to allow a third-party debtor to invoke the grounds for refusal of recognition under Art. 45 of the Brussels Ibis Regulation in the guise of national enforcement law. To do so would allow national enforcement law to frustrate the clear intention of the European legislature. In this respect, the principle remains that the procedure for the refusal of enforcement under the Brussels Ibis Regulation constitutes an autonomous and self-contained system. Consequently, Art. 46 of the Brussels Ibis Regulation precludes legal remedies that national law makes available to interested third parties against the authorization of enforcement.

VI. The International Jurisdiction of German Courts
A potential ground for refusing enforcement could arise under Art. 46 in conjunction with Art. 45(1)(e)(ii) of the Brussels Ibis Regulation. This would be the case under two conditions: First, international jurisdiction to decide an advance on costs (Section 887(2) ZPO) would have to derive from the exclusive jurisdiction established in Art. 24(5) of the Brussels Ibis Regulation; and second, that provision would have to preclude the recovery, in another Member State, of an advance on costs awarded in Germany. However, the decision rendered pursuant to Section 887(2) ZPO does not, in itself, exert any coercive effect upon the debtor. According to the Federal Court of Justice, such an effect would be a prerequisite for classifying the advance order as an enforcement measure. Even in a purely domestic context, a decision regarding an advance on costs constitutes merely an enforceable judgment within the meaning of Section 794(1) No. 3 ZPO—one that is enforced, like an ordinary monetary claim, in accordance with Sections 803 et seq. ZPO. The exclusivity of international venues in the matters specified in Art. 24(5) of the Brussels Ibis Regulation applies invariably only to the adjudicatory proceedings, and not to the subsequent enforcement of a resulting judgment regarding a monetary claim. Furthermore, this would result in an objectively unjustified disparity in the treatment of obligations to advance costs, depending on whether such obligations are governed by substantive law (e.g., Section 637(3) of the German Civil Code – BGB) or by the respective procedural code (e.g., Section 887(2) ZPO).

VII. Effective Service
A further ground for refusing enforcement could arise from Art. 46 in conjunction with Art. 45(1)(b) of the Brussels Ibis Regulation. In this regard, the Versailles Court of Appeal based its reasoning on the following findings: The debtor D had not been formally summoned to appear before the Nuremberg Higher Regional Court; instead, this Court had dispensed with formal service via mutual legal assistance “for reasons of expediency” and had simply transmitted the documents by email on 9 September 2022; D had been granted a period of only three days (including a weekend) to submit a response, even though the matter involved a claim amounting to € 5.7 billion; and the certificate issued under Art. 53 of the Brussels Ibis Regulation noted that the decision had been rendered in default proceedings but left blank the field for the date of service of the document instituting the proceedings.
The CJEU has recognized that service by public notice, effected in accordance with national law, does not infringe Union law, provided that the requested court has satisfied itself that all inquiries required by the principles of diligence and good faith have been carried out to locate the defendant. This reasoning also applies to a situation where, despite the creditor and the court of origin knowing the debtor’s address, it is practically impossible to effect service in the debtor’s State due to a lack of cooperation from local authorities. This is the case where the court of origin has attempted to effect service on the debtor in accordance with national and international law (specifically the Hague Service Convention) and where—as in the present case—the success of that service was thwarted by the authorities of the State that exercises legal and economic control over the debtor company. The effective protection of a creditor who has obtained a judgment enforceable within the EU against a debtor established in a third State would be disproportionately jeopardised if the mere refusal—potentially in bad faith—of a third State to effect service were to prevent any enforcement within the Union in a State other than that of the court of origin.
Moreover, since the debtor company had become aware of the content of the order in good time, it could also have lodged an objection based on a breach of the right to be heard pursuant to Section 321a ZPO. However, it failed to do so; consequently, refusal of enforcement on the grounds of a defect in service is precluded under Art. 46 in conjunction with Art. 45(1)(b), final clause, of the Brussels Ibis Regulation. According to established case law of the CJEU, this ground for refusal is excluded if the defendant could have challenged the decision in the State of origin but failed to do so. The concept of a legal remedy is to be interpreted autonomously and broadly; it encompasses any measure capable of subsequently affording the defendant the right to be heard, expressly including an application for restoration of the status quo ante.

VII. Summary
German judgments regarding the payment of an advance on costs for a substitute performance pursuant to Section 887(2) ZPO—much like decisions concerning cost advances based on substantive law—may be enforced abroad pursuant to Art. 39 Brussels Ibis Regulation; these constitute “judgments” within the meaning of Art. 2(a) Brussels Ibis. If the court of origin has certified, pursuant to Art. 53 Brussels Ibis, that the original decision falls within the scope of Art. 2(a) in conjunction with Art. 39 Brussels Ibis, the requested court is bound by that certification; this is likely to be confirmed by the CJEU in the reference proceedings initiated by the German Federal Court of Justice. The exclusive jurisdiction established under Art. 24(5) Brussels Ibis does not preclude the cross-border enforcement of a judgment regarding an advance on costs by means of the attachment of claims.
The fact that Art. 46 Brussels Ibis limits the standing to invoke grounds for refusal of enforcement solely to the debtor is based on a deliberate legislative decision to expedite the cross-border enforcement of claims. This underlying policy must not be undermined by third-party debtors invoking grounds for refusal of recognition under Art. 45 Brussels Ibis while ostensibly acting under the guise of national enforcement law. This applies in particular to grounds for refusal intended solely to safeguard the principal debtor’s right to be heard (Art. 45(1)(b) Brussels Ibis).
Furthermore, when examining potential defects in service, it must be taken into account whether a third state has delayed or frustrated service requested by the creditor pursuant to the Hague Service Convention; this behaviour must not operate to the detriment of a creditor seeking to enforce, under the Brussels Ibis Regulation, a judgment regarding an advance on costs obtained within the EU. If the mere refusal of judicial assistance by a third state were to result in a judgment validly obtained in Germany being incapable of full enforcement in other EU Member States, the effectiveness of European enforcement law vis-à-vis debtors in third states would be at stake.

The following announcement has kindly been shared with us by Dr. Benedikt Schmitz.

Save the Date: 4 November 2026

Online Book Launch – Choice of Law or Consumer Contracts in Theory and Practice

 

We are pleased to announce an upcoming virtual book launch for Dr. Benedikt Schmitz’s new monograph, Choice of Law for Consumer Contracts in Theory and Practice (Edward Elgar Publishing). The event is hosted by the WEAKER PIL research line (weakerparties.eu).

• Date & Time: 4 November 2026, 15:00 – 17:00 CET, online
• Topic: The event will examine cross-border consumer protection and the complex conflict-of-laws frameworks regulating the global surge in online shopping. Panelists will discuss many aspects of Article 6 Rome I Regulation, including the historical dimensions of consumer protection in applicable law, the targeting test and consumer definition, the restriction to party autonomy, its ex officio application, and the US American approach to cross-border consumer contracts.

 

Featured Speakers

• Benedikt Schmitz, Assistant Professor of Private International Law and Comparative Contract Law (University of Groningen, the Netherlands)
• Beatriz Añoveros Terradas, Full Professor of Private International Law (University of Barcelona, Spain)
• Zhen Chen, MSCA Postdoctoral Fellow (University of Edinburgh, United Kingdom)
• Jerca Kramberger Škerl, Full Professor of Civil and Commercial Law (University of Ljubljana, Slovenia)
• Stephen Ware, Frank Edwards Tyler Distinguished Professor of Law (University of Kansas, United States of America)

 

Registration
Registration details for the online event will be posted here closer to the date. In the meantime, you may sign up to be notified the moment registration opens (click here) and/or the monograph is available for purchase at Edward Elgar Publishing.

This post was written by Felix M. Wilke (Full Professor at the EBS University Law School, Oestrich-Winkel, Germany). He was granted prior access to the book reviewed here. Just recently, German publishing house Nomos made available “Statutenwechsel und Gerichtsstandswechsel” by Christoph Gramlich-Altenburg, a book on the conflit mobile under Rome I, Rome II, and Brussels […]

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