Flux des sites DIP

Reciprocity in the field of recognition and enforcement of foreign judgments has long been a subject of passionate debate. While some scholars question its desirability, others firmly defend it as a legitimate legal requirement. What remains undeniable is that the topic continues to spark intense discussion and scholarly interest.

A clear illustration of this ongoing debate is provided by two recent publications addressing the issue from different perspectives and jurisdictions.

The first is an enlightening open-access article by Eszter PAPP and Nobumichi TERAMURA, titled “Enforcing Singapore Judgments in Cambodia: Reciprocity Under the Loupe“. The paper explores the practical and legal challenges related to the enforcement of Singaporean money judgments in Cambodia, with a specific focus on the requirement of reciprocity.

The abstract reads as follows:

Abstract:
This article examines the feasibility of enforcing Singapore money judgments in Cambodia, focusing on the “guarantee of reciprocity” – an ambiguous yet critical condition. It is ambiguous because Cambodian courts have not yet interpreted it. It is critical because it is perceived as the main obstacle to enforcing foreign judgments. Without a treaty-based mutual enforcement mechanism between Cambodia and Singapore, it is unclear whether a Singapore money judgment could be enforced in Cambodia or if a judgment creditor’s application would be dismissed in any event citing lack of reciprocity. Following an analysis of the laws of Cambodia, Singapore, and Japan, the article concludes that there is no legal obstacle before the Cambodian courts to enforce a Singapore money judgment. The flexible interpretation of the guarantee of reciprocity outlined in this article would enhance access to justice, eliminate a trade barrier, and make the investment environment more attractive in Cambodia.

The second is a case comment written by myself (in French) on a decision of the Tunisian Cour de cassation that addresses the reciprocity requirement in the context of the enforcement of foreign judgments, under the title “La réciprocité en matière d’exequatur?: Quoi de nouveau?? Observations sous l’arrêt de la Cour de cassation n° 6608 du 13 mars 2014” (Reciprocity in the Recognition of Foreign Judgments: What’s New? Commentary on Court of Cassation Ruling No. 6608 of 13 March 2014)

The (English) abstract reads as follows:

Abstract:
The enforcement of foreign judgments in Tunisia is governed by Article 11 of the 1998 Code of Private International Law, which states that enforcement cannot be allowed if, inter alia, the reciprocity principle is not observed. This case note analyzes and reviews this issue in light of the Tunisian Cour de cassation’s decision No. 6608 of 13 March 2014. In this decision, the Court ruled that, in the absence of an international cooperation agreement, reciprocity is a factual matter, and its respect must be presumed. It is therefore up to the party contesting this presumption to provide evidence of its non-existence. This decision provides a valuable clarification of the nature and legal framework of reciprocity under Tunisian law, particularly regarding the burden of proof.

Together, these two contributions offer a concise yet comprehensive look at how the principle of reciprocity is interpreted and applied in different legal systems.

Stefano Dominelli (Univ. of Genova) has authored ‘Regolamento Bruxelles I bis e US jurisdiction in personam: riflessioni e proposte su condivisioni valoriali, influenze e osmosi di metodi’ (Editoriale Scientifica, Napoli, 2025). The volume, in Italian (with the conclusive chapter also translated in English) is freely accessible online. He has shared the following presentation of his […]

I am grateful to Charlotte de Meeûs for her summary below of the most extensive review of TPLF in the EU. It would look to me that the lack of firm support by the study for any of the 3 options it outlines (see below), probably makes it veer towards the first: which one that is, is for readers to find out at the end of this post.

Charlotte inter alia has her own comparative overview here, has also published on the use of TPLF in public interest litigation, and discusses costs recovery (one of the important elements to TPLF) in the context of the ECHR here: I am most happy that as a scholar in the know, she was prepared to write on the study for the blog.

Geert.

*****

European Commission publishes long-awaited study mapping the use and regulation of third-party litigation funding in the EU.

On 21 March 2025, the European Commission published the BIICL study “Mapping Third Party Litigation Funding in the European Union” (the Mapping Study). The Mapping Study provides a comprehensive examination of the legal frameworks, practices, and stakeholder perspectives on third-party litigation funding (TPLF) across EU Member States and selected non-EU countries, including Canada, Switzerland, the United Kingdom, and the United States.

Aims and structure of the Mapping Study

The EC’s initiative was undertaken in response to the European Parliament’s Resolution adopted in September 2022, calling for the Commission to regulate the TPLF market. Upon request of the Commission, the Mapping Study was conducted by the British Institute of International and Comparative Law (BIICL) and Civic Consulting, and supported by various national experts.

 The extensive Mapping Study is divided into two main sections. First, a legal analysis carried out by national experts describing the regulation and practice of TPLF in the selected jurisdictions. Second, the results of the stakeholders’ consultation, gathering the opinions of various stakeholders (e.g., lawyers and law firms, businesses, litigation funders, consumer organisations, academics, public authorities, members of the judiciary) on the possible regulation of TPLF and its practical operation.

Key Findings

On the TPLF regulatory landscape, the Mapping Study finds that within the EU, specific regulation of TPLF is largely absent, except in the context of consumer collective redress following the national transpositions of the Representative Actions Directive – RAD 2020/1828.

This means that TPLF is primarily governed by national contract law and national civil procedure. In jurisdictions outside the EU, such as Canada and the UK, regulation primarily stems from case law, while TPLF in the USA is subject to an interplay of federal and state regulations. Logically, the absence of regulation at national level also means that very few countries have provisions similar or equivalent to provisions laid down in the 2022 Parliament Resolution on TPLF.

On the use of TPLF in the selected jurisdictions, the Mapping Study shows in essence that TPLF practices vary widely depending on the jurisdiction and the sector concerned. TPLF is indeed used in a wide variety of sectors. The selection of funded claims as well as the terms of litigation funding agreements diverge depending on the funder and the claim at hand.

In this context, the Mapping Study emphasises the difficulties arising from the broad diversity in funding practices and from the lack of available data. In the words of the authors of the Study, caution regarding the results of the Study is needed as

“[t]his variety makes general conclusions regarding practices of litigation funders difficult, and it also implies that the results of this consultation are not necessarily a complete picture of litigation funding in the EU, but rather provide a summary of those practices that were observed by the participating litigation funders and other stakeholders” (p. 637).

On the views of stakeholders regarding the use and regulation of TPLF, it is interesting to note that, amongst the 231 stakeholders who took part in the consultation, most views on TPLF were (at least partially) positive. Around 34% of stakeholders indeed viewed TPLF as having only positive effects, 24% considered TPLF to have both positive and negative effects and 17% only perceived negative effects.

Lawyers, litigation funders, and, importantly, consumer organisations generally viewed TPLF as having predominantly positive effects, whereas businesses (excluding lawyers and funders) perceived TPLF more negatively. The main positive effects listed by stakeholders were better access to justice, professionalism and expertise provided by funders in complex cases and filtering effect for non-meritorious cases. Among the four most cited negative effects of TPLF, stakeholders mentioned the reduced compensation for the funded party due to the remuneration owed to the funder; conflicts of interests arising from the involvement of a third-party litigation funder; the control or influence that the funder has on litigation (including on substantive and procedural decisions regarding legal proceedings and settlements); and possible frivolous claims funded by TPLF.

Regarding the question whether regulation of TPFL was needed, the majority (58%) of respondents found that TPFL should be regulated. However, among these 58%, the Mapping Study showed that there was little willingness for regulation exclusively at national level (29% of stakeholders were of the opinion that regulation should take place at EU level and 25% answered that regulation should take place at both EU and national level).

Interestingly, stakeholders also pointed out the issues that were in their view the most in need for regulation, by giving scores of “effectiveness” to the measures proposed in the 2022 Parliament Resolution on TPLF.

The issues that obtained the higher “effectiveness scores” were transparency requirements, conflicts of interests, capital adequacy and responsibility for adverse costs. However, although these issues received the highest “effectiveness score”, none of the measures envisaged in the 2022 Parliament Resolution on TPLF, except for transparency requirements, are considered to be “rather effective”.

Opinions diverged however regarding the type of regulation needed. The Mapping Study identified three possible routes for TPLF regulation namely:

No regulation: this position is based on the argument that there is no evidence that TPLF has negative effects and that overly strict regulation could drive litigation funders away from the EU market. This position adds that the existing national rules (e.g., general contract law and civil procedure, consumer protection, financial and banking rules and collective redress laws) are sufficient and should be used in parallel with courts’ supervision to address some issues linked to TPLF.

Light-touch regulation: this position, adopted by the widest number of stakeholders, is in favour of adopting basic rules governing TPLF without being too specific or too strict so as to drive litigation funders away from the EU market. Regulation would in this scenario not only increase predictability for funders and funded parties but also avoid placing an excessive burden on the courts insofar as regulation of TPFL is concerned. The issues identified as needing regulation include transparency and disclosure of the existence of litigation funding agreements, capital adequacy requirements and consumer protection.

Strong regulation: this position, which focuses on the negative effects associated with TPLF, favours the adoption of a comprehensive regulation of the TPLF market, in line with the approach proposed in the 2022 Parliament Resolution on TPLF. This position contends that while TPLF practices should not be excessively limited, the (negative) impact that TPLF may have on litigation requires some controls through regulation.

Next steps

It is said that information gathered in the context of the Mapping Study will inform the European Commission’s policy decisions regarding TPLF. However, it remains to be seen what steps the European Commission will take following the publication of the Mapping Study and whether and how it will further react to the 2022 Parliament Resolution on TPLF.

The Commission has indeed not explicitly confirmed whether it is inclined to follow one of the three possible routes for TPLF regulation identified in the Mapping Study, nor whether it will take any formal initiative in this respect.

In the meantime, one will therefore have to continue closely to monitor  possible national developments viz the practices of litigation funders, starting with the final report of the UK Civil Justice Council (CJC) reviewing litigation funding and its possible regulation in the UK, which is said to be  expected by summer 2025.

Charlotte de Meeûs.

As reported on this blog, the European Commission published on 26 February 2025 a proposal for a directive amending Directives 2006/43, 2013/34, 2022/2464 and 2024/1760. The initiative, part of the Omnibus Simplification Package, seeks to adjust certain corporate sustainability reporting and due diligence obligations. On 1 April 2025, the European Parliament invoked the urgent procedure […]

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.

Advocate-General Kokott opined last week in Joined Cases C-672/23 and C-673/23 Electricity & Water Authority of Government of Bahrain ea v Prismiian ea .

After her Opinion in Athenian Brewery, where the CJEU itself was less claimant friendly than the AG had opined,  it is the second Kokott AG Opinion on the use of anchor defendant mechanism in follow-on antitrust damages claims in quick succession.

Case C‑672/23 concerns the determination of the joint and several liability of the defendants for damage claimed as arising from an infringement of the prohibition on cartels under EU law in the form of a cartel in relation to underground and submarine cables and related products, works and services.  The claim in the main proceedings is directed not only against the companies mentioned in the relevant Commission Decision but also against other companies that fall into three groups of undertakings. These have at their centre Prysmian Cavi e Sistemi Srl, ABB AB and Nexans France SAS. Of all the defendants, only Draka Holding BV, which is a subsidiary of Prysmian Cavi e Sistemi and itself holds all of the shares in the capital of Prysmian Netherlands BV, is established in Amsterdam, Netherlands. All of the other defendant companies (collectively ‘Draka and others’) each have their registered office in other locations within and outside the Netherlands. Claimants in the main proceedings in this case, the Electricity & Water Authority of the Government of Bahrain and others (collectively ‘EWGB and others’), operate high-voltage networks in the Gulf States. Damage arguably took place outside the EEA.

Case C‑673/23 likewise concerns the determination of the joint and several liability of the defendants in the main proceedings at first instance for damage which is alleged to have arisen as a result of two infringements of the prohibition of cartels under EU law, in this case not established by the European Commission, rather by the Italian national competition authority. The claim in the main proceedings at first instance was directed not only against the companies mentioned in that decision but also against other companies that fall into two groups of undertakings. These have at their centre, on the one hand, Smurfit Kappa Italia SpA, and, on the other hand, Toscana Ondulati SpA. Of those defendants, only Smurfit International BV is established in Amsterdam, Netherlands. All of the other companies (collectively ‘Smurfit and others’) each have their registered office in other locations within and outside the Netherlands.

The questions referred are very detailed indeed (see (17) of the Opinion). They essentially request from the CJEU a roadmap to determine the justifiable use of the anchor mechanism in cases like these. Particularly after Athenian Brewery, national courts arguably have enough material to make that assessment themselves, however the courts at Amsterdam had of course referred these cases prior to Athenian Brewery having been held.

The AG first of all and succinctly recalls

• the principles of an ‘undertaking’ in EU antitrust law [(30):

“in order for it to be found that the parent company and the subsidiary company form an economic unit, the claimant must not only establish the economic, organisational and legal links between these companies, but also prove that there is a specific link between the economic activity of that subsidiary company and the subject matter of the infringement by the parent company”

• and the core application of A8(1) Brussels Ia in the antitrust context (32): (A8(1)’s condition of close relatedness is

“fulfilled where several undertakings that participated in an infringement of EU competition rules, established by a decision of the Commission, are the subject of claims based on their participation in that infringement, despite the fact that they participated in that infringement in different places and at different times” (reference to CJEU CDC); and

” The same is also true of claims based on a company’s participation in an infringement of the EU competition rules which are directed against that company and against its parent company and in which it is alleged that those companies together form one and the same undertaking” (reference to CJEU Athenian Brewery).

The AG then entertains the referring court’s question on whether the prospect of success of the claim against the anchor defendant must be taken into account. ‘Prospect of success’ is a better translation than the translation elsewhere in the Opinion of the questions referred, where the Dutch term ‘toewijsbaarheid’ is translated as ‘admissibility’. The referring court clearly seeks guidance on the relevance of the merits of the claim.

The AG concludes on this section

“account is to be taken of the prospects of success of the claim against the anchor defendant, but only as an indication that the claimant has not artificially fulfilled the conditions for that provision’s applicability, which may be true in the case of a manifestly unfounded claim.”

‘Prospect of success’ must be an echo of common law CPR (a ‘real issue to be tried’), although we do not quite know: the AG, as is her MO, refers to no scholarship in her Opinion.

On this point I do not think the authorities support the conclusions which the AG draws from it.  She writes (37)

“Article 8(1) of the Brussels I bis Regulation must not be abused by bringing a claim against several defendants for the sole purpose of removing one or more of them from the jurisdiction of the courts of the State in which that defendant or those defendants is or are domiciled. That would be the case if there were firm evidence to support the conclusion that the claimant artificially fulfilled, or prolonged the fulfilment of, the conditions for that provision’s applicability.” (references omitted)

References were to CJEU CDC, and what the AG writes (37) is correct.

However the AG then jumps to the claim being ‘manifestly unfounded’: (38)

“For that to be the case, however, it is not sufficient that the claim against the anchor defendant should (possibly) appear to be unfounded. Rather, the claim must be manifestly unfounded or contrived or be devoid of any real interest to the claimant at the time when it is brought.”

In the original German, the Opinion uses ‘unbegründet’, which clearly refers to substantial merit of the case, not procedural or other inadmissability (and indeed this is also how the referring court has intended its question).

In support of her position in (38) the AG refers (other than to her Opinion in Athenian Brewery and to Mengozzi AG in Freeport) to CJEU Reisch Montage para [33]. This CJEU para does not however talk about the claim being unfounded, manifest or not. Rather it is summary of the judgment, right before its operative part and it addresses procedural inadmissability (due to a pending bankruptcy proceeding). In Reisch Montage the CJEU does not address meritorious prospect of success at all.

Whether the likelihood of success of an action against a party before the courts of the State where it is domiciled (some kind of merits review, therefore) is relevant in the determination of whether there is a risk of irreconcilable judgments for the purposes of A8(1), was raised in Freeport but not answered by the CJEU, for such answer was eventually not necessary for the preliminary reference at issue.

The issue was discussed in England, pre Brexit. In the first instance judgment in Sabbagh v Khoury, Carr J’s extensive merits review hinged on the CJEU instruction ‘to take account of all the necessary factors in the case-file’ per CJEU Freeport at [41]. The Court of Appeal on majority confirmed the need for a rather extensive merits review.

I do not think this is what A8(1) either requires or indeed sanctions, and I agree with Lady Justice Gloster, who dissented in the Sabbagh appeal, [178]:

‘the operation of a merits test within Article [8](1) does give rise to risk of irreconcilable judgments, which can be demonstrated by reference to the present facts’,

and [179]

“the overwhelming tenor of the CJEU authorities is to emphasise the fundamental aim of eliminating, rather than simply reducing, a risk of irreconcilable judgments. This aim is achieved if Article [8](1) does not incorporate a merits test and is undermined if it does do so.”

Article 8(1)’s ‘so closely connected’ test clearly requires some appreciation of the facts and the legal arguments, as well as a certain amount of taking into account the defendant’s arguments, however only with a view to assessing relatedness with a view to avoiding irreconcilable judgments. This in my view does not amount to a merits test, whether a wide or a narrow (‘manifestly unfounded’) one and this remains an important difference with the common law ‘real issue to be tried’ requirement.

(40) ff the AG then zooms in on some issues related to the prospect of success (in my opinion the CJEU will not follow on prospect of success and, practising judicial economy, will not entertain these questions).

As she notes, these questions are only raised viz the exercise of jurisdiction, and they are (43) “a complex legal question calling for in-depth examination” – a question which I suspect may be referred again if and when the Dutch courts do exercise jurisdiction. This includes [(44) ff) how attributability of damage to an adverse effect on competition in the internal market, must be interpreted where damage arguably occurred outside of the EEA, and the general issue of territorial scope of A101 TFEU. (In my view the answer may be much more straightforward perhaps than seemingly suggested in the submissions, by focusing on the claims essentially being in compensation for damage following breach of statutory duty). This section also discusses substantive issues of presumption of control in competition law.

(68) ff then returns to the issues of jurisdiction, addressing ia the topic of groups of undertakings, taking into account that in one of the cases it is the  downstream liability of a subsidiary company for an infringement committed by its parent company that is at stake. Intense reference here of course to CJEU Athenian Brewery.

(79) ff addresses the role of the foreseeability of the co-defendant’s being sued in the jurisdiction of the anchor defendant.

I wholly agree with the AG’s view (81) that “foreseeability is not.. an independent criterion that is examined alongside the other elements defining the fulfilment of the provision at issue.” And, (82)

there is no requirement under Article 8(1) of the Brussels I bis Regulation for the co-defendant him or herself to have specifically foreseen that he or she would be sued in the jurisdiction of the anchor defendant. Rather, abstract foreseeability, in the form of the ability of an informed and reasonable defendant to foresee before which courts he or she might be sued outside his or her State of domicile, is sufficient.

(83) a ‘close connection’ with the defendant, such as here through the group undertaking issue, is particularly relevant in this respect.

I have seen many instances recently where opposing counsel banks on lack of predictability to propose rejecting jurisdiction. I would welcome a finding by the CJEU that brings that interpretative rule back to its true nature.

(87) ff then addresses territorial jurisdiction under A8(1). Statutory interpretation as the AG argues, points to a strong yes (reference ia to FTI Touristik) as does linguistic comparison and the report Jenard, despite the CJEU not having yet ruled on the issue viz A8(1) specifically. If there are two anchor defendants in the same Member State, and subject to the effectiveness of EU jurisdictional law not being impaired, national CPR ought to be allowed to join the case against both, but only I assume in one of the courts where the conditions of A8(1) are fulfilled (see (97) “a court which considers itself to lack jurisdiction may take up the option to make a reference to another court available under its national procedural law, provided that the effective enforcement of the Brussels I bis Regulation is not restricted as a result”).

All in all a very relevant Opinion, CJEU judgment is one to watch!

Geert.

EU Private International Law, 4th ed. 2024, 2.516.

https://bsky.app/profile/gavclaw.bsky.social/post/3lm7gymxlkk24

https://www.linkedin.com/posts/geert-van-calster-60abab9_more-on-the-blog-later-after-athenian-brewery-activity-7314912971514662913–mmY?utm_source=share&utm_medium=member_desktop&rcm=ACoAAAHHS6oB7DOA8jUedLLahLDL6cEwepyHYwA

https://x.com/GAVClaw/status/1909147234995782066

On 20 March 2025, the Danish Supreme Court ruled (in case BS-34884/2024-HJR) that a Chinese arbitral award could not be enforced in Denmark due to a lack of proper service. Background In 2020, a Chinese arbitral tribunal held that the investments that an investor had made for a company should be repaid. Since the defendant […]

By Ryan Joseph, final-year BBA LLB (Hons) student, Jindal Global Law School, India.

Introduction

The recent decision of the UK High Court (“Court”) in Tyson International Company Limited (“Tyson”) v. General Insurance Corporation of India (“GIC”) sets a critical precedent for cases that lie at the intersection of arbitration, contractual hierarchy, and judicial intervention through anti-suit injunctions. The principal issue in the case revolved around the harmonious application of two conflicting dispute resolution clauses contained in two separate agreements pertaining to the same transaction. While one provided for dispute settlement through arbitration seated in New York, the other was an exclusive jurisdiction clause that provided for dispute settlement by England and Wales courts. To resolve this apparent conflict between the two clauses, the Court relied on a confusion clause (also known as a hierarchy clause) in the parties’ agreement to rule that the exclusive jurisdiction clause, in favour of  England and Wales courts, prevails over the arbitration clause. Based on this conclusion, the Court issued an anti-suit injunction against GIC from arbitrating the dispute in New York.

Factual Background

Tyson entered into a reinsurance agreement with General Insurance Corporation of India (“GIC”), a state-owned-entity. The transaction involved two agreements; a Market Reforms Contract (“MRC”) and second Facultative Certificates (“Certificates”). The MRC contained an explicit choice of law and an exclusive jurisdiction clause, submitting disputes to English courts to be governed by the laws of England and Wales (“English DRC”). However, the subsequently issued Certificates introduced an arbitration clause referring disputes to arbitration in New York to be governed by the laws of New York (“Arbitration Clause”). A pivotal provision, termed the “Confusion Clause,” was embedded within the Certificates, stipulating that in the event of a confusion, the MRC would take precedence over the Certificates.

The dispute arose when GIC claimed that Tyson had undervalued certain commercial numbers on which the insurance premium was based. Therefore, GIC sought to initiate arbitration in New York pursuant to the arbitration clause in the Certificates. In response, Tyson approached the High Court for an anti-suit injunction against the arbitration, arguing that  pursuant  to the English DRC, English courts would have exclusive jurisdiction over any dispute emanating from the transaction.

The Court stressed on the importance of circumspect judicial intervention when interfering in arbitration. However, considering the existence of the “confusion clause”, Tyson argued that the arbitration agreement did not come into existence. Therefore, the principal  question before the Court was: what is the effect of the confusion clause when interpreting the two agreements? If the confusion clause had the effect of a hierarchy clause (as argued by Tyson) and hence gave precedence to the MRC, the arbitration agreement wouldn’t come into existence and the anti-suit injunction would be granted. On the other hand, if the confusion clause was merely to give meaning to confusing terms in the Certificates (as argued by GIC), the two agreements would be read harmoniously without giving preference to either. GIC argued this can be done in two ways. First, the conflicting clauses could be read as an agreement between parties to treat the arbitration as a condition precedent to raising any claims before the English Courts. Or in the alternative, the two agreements would be read together to mean that English Courts will have jurisdiction to supervise the New York arbitration. Either ways, the arbitration agreement would be valid and hence the anti-suit injunction should fail.

Submissions of Parties

The Court summarised the principles governing anti-suit injunctions in Times Trading Corp v National Bank of Fujairah[1] to hold that an anti-suit injunction can be granted in all cases where it is just and convenient to do so.[2] However, such power must be exercised with circumspection where the claimant can demonstrate a negative right to not be sued. Tyson can establish such a right if it can demonstrate that an arbitration agreement was not concluded between the parties. Crucial to this conclusion would be determining the effect of the confusion clause in the Certificates.

The judge cited various authorities; specifically Surrey County Council v Suez Recycling and Recovery Surrey Limited[3], to discuss principles of contractual construction and summarised the position in that the role of the court is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. GIC made the following submissions in this regard: First, the phrase “confusion” in the clause refers to obscurity or uncertainty in the meaning of provisions and does not refer to a conflict or a contradiction. They relied on the meaning of the word “confusion” in the Oxford dictionary to support this premise and submitted that the clause operates to address any uncertainty that may arise when reading the provisions of the Certificates. Such uncertainties must then be addressed by interpreting the provisions in light of the MRC. However, the clause does not operate to address a conflict between the MRC and the Certificates, for such an instance is a “conflict” and not a “confusion”. Lastly, they submitted that there is no confusion because the arbitration clause in the Certificates should be read as a Scott v. Avery[4] clause[5] or, a clause conferring English Courts with supervisory jurisdiction over the New York arbitration.

Tyson submitted that by using the phrase “takes precedence” in the confusion clause, the clear objective intent of the parties is to create a hierarchy between the MRC and Certificates whereby in case of a confusion, the terms contained in the MRC will prevail over those in the Certificates. They further submitted that GIC is taking a very narrow interpretation of the word “confusion” and is reading it in isolation of the remainder of the clause to arrive at its conclusion. The word “confusion”, when read in the context of the provision, has a broader purport to cover circumstances of contradicting terms between the MRC and the Certificates that create confusion regarding which clause will prevail. Thus the clause operates as a hierarchy clause whereby it clears the confusion by giving precedence to clauses in the MRC.

 

The Judgement

The Judge agreed with the submissions of Tyson and found that GIC’s interpretation of “confusion” was too narrow to reflect an objective meaning of the language used by parties. He ruled that confusion can also arise where there are two clauses within a contract which are inconsistent such that there is confusion as to the intent of the parties as to their respective rights and obligations under the contract because of such inconsistency. Second, when the MRC grants exclusive jurisdiction to English Courts and the Certificates provide for disputes to be resolved through arbitration in New York, there is an obvious confusion as to which dispute resolution clause should apply. The judge noted that English courts must give generally give effect to an arbitration clause but this is a case of routine construction of contracts wherein courts cannot rewrite the parties’ agreement. Accordingly, when parties have explicitly agreed that the MRC must take precedence in case of a confusion, such intention must be given effect. The Court opined that any attempt to resolve the confusion through any other means such as viewing arbitration as a condition precedent to any right of action or allowing the arbitration to continue under the supervision of English Courts would amount to rewriting the contract. As a sequitur, the court ruled in favour of Tyson and granted an anti-suit injunction against GIC.

 

GIC’s Attempt to Appeal

In response to the judgment, GIC sought permission to appeal on two grounds (i) the court misconstrued the Confusion Clause in the Certificates and (ii) the court misconstrued the MRC and the Certificates in concluding that the English Court did not have jurisdiction over New York arbitration. When considering whether to grant an appeal, the test is whether GIC has a real prospect of success in relation to any of its grounds.

In order to discharge this burden, GIC made the following arguments: (1) the ‘confusion’ language is novel and has not been interpreted by courts in the past which gives it considerable scope to argue about its meaning; (2) the Certificates were contractual documents intended to supersede the MRC and not merely administrative documents; and (3) the Court has failed to consider the strong policy adopted by English courts in favour of giving effect to arbitration agreements whereby the conflict should be interpreted in a manner that upholds the agreement to arbitrate. Tyson in response argued that (1) the Court’s construction of the word “confusion” gives effect to the meaning of the word in light of the clause as a whole whereas GIC’s construction focuses only on the word ‘confusion’ in isolation of the entire clause. (2) GIC’s interpretation of the Confusion Clause runs against commercial common sense; for an overriding effect would essentially nullify many of the provisions contractually agreed to in the MRC. (3) judicial precedents[6] that have ruled in favour of arbitration by resolving potential conflicts between contractual provisions lacked a hierarchy clause necessitating the courts to engage in the endeavour of contractual interpretation. In this case, where a hierarchy clause exists, it is not a matter of resolving conflicts by applying judicial standards of interpreting contracts but one giving effect to the parties’ method of resolving confusion between conflicting provisions.

Based on the submissions, the Judge concluded that GIC did not have a realistic prospect of success on either of its grounds. At the outset, although one could accept GIC’s construction of the Confusion Clause, it still lacks the realistic prospect of persuading the Court of Appeal to eschew the construction adopted by the Court and instead acceding to GIC’s construction. Finally, the Confusion Clause in this case is a relevant factor that distinguishes this case from  previous cases favouring arbitration because it operates as a hierarchy clause to mitigate any confusion when reading the Certificates and the MRC together. Since the parties have contractually agreed to the hierarchy clause when resolving any confusion, the court must give effect to the clause when resolving conflicts and cannot apply its own principles of interpreting conflicting terms of a contract; for any such attempt would amount to rewriting the parties’ agreement. Therefore, even the second ground lacks a realistic prospective of succeeding before the court of appeals. Since both the grounds for appeal lacked a realistic prospective of succeeding, the application for leave to appeal was refused.

 

Key Takeaways and Implications

The said ruling in underscores the Court’s role in upholding contractual intention of parties when resolving conflicts between competing dispute resolution clauses. By affirming the primacy of the Market Reform Contract through the Confusion Clause, the court reinforced the principle that hierarchy clauses serve as decisive mechanisms in contractual interpretation. Furthermore, the court’s refusal to grant leave to appeal solidifies the precedent that courts will not rewrite contracts but will instead give effect to unambiguous terms agreed upon by parties. This case sets as an important judicial precedent for interpreting confusion clauses and strengthens the predictability of contractual enforcement in commercial agreements. As a takeaway, when drafting multiple contracts for the same transaction, it is worth considering the harmonious impact of differing clauses in the various agreements. Parties, must discuss their commercial objectives and have a clearer communication of their intended outcomes before agreeing to multiple dispute resolution clauses that cover the same transaction.

 

[1] Times Trading Corp v National Bank of Fujairah (Dubai Branch) [2020] EWHC 1078 (Comm)

[2] Girish Deepak, ‘ANALYSIS: UK HIGH COURT ISSUES ANTI-SUIT INJUNCTION AGAINST NEW YORK-BASED COURT ANDARBITRATION PROCEEDINGS IN DISPUTE INVOLVING INDIAN STATE-OWNED INSURANCE COMPANY’ (IA Reporter, 27 February 2025) <https://www.iareporter.com/articles/analysis-uk-high-court-issues-anti-suit-injunction-against-new-york-based-court-and-arbitration-proceedings-in-dispute-involving-indian-state-owned-insurance-company/> accessed 11 March 2025

[3] Surrey County Council v Suez Recycling and Recovery Surrey Limited [2021] EWHC 2015 (TCC)

[4] Scott v Avery (1856) 5 HL Cas 811

[5] Keren Tweeddale, Andrew Tweeddale, ‘Scott v Avery Clauses: O’er Judges’ Fingers, Who Straight Dream on Fees’ [2011] 77(4) Arbitration: The International Journal of Arbitration, Mediation and Dispute Management, pp. 423 – 427

[6]Sulamerica CIA Nacional de Seguros SA & Ors v Enesa Engenharia SA & Ors [2012] EWHC 42 (Comm), Surrey County Council v Suez Recycling and Recovery Surrey Limited. [2021] EWHC 2015 (TCC)

The Centre for Private International Law and Transnational Governance of the University of Aberdeen is relaunching its Crossroads in Private International Law research seminar series. The programme will open on 23 April 2025, at 14:00 (UK time), with a seminar on Consumer Protection and Justice in Israeli Private International Law by Sharon Shakargy (The Hebrew […]

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.] SD Rebel v Elise Tankschiffahrt [2025] EWHC 376 (Admlty) is a classic case to consider the impact of anti-suit injunctions issued post Brexit by the English courts, upon ongoing proceedings in a court in the EU. Defendant did not enter an appearance, having withdrawn legal representation in light of the ongoing Dutch proceedings. The history of the case is summarised [3]: On 14 November 2023 salvage services were provided by the VB REBEL to the STELA at Scheurhaven, which is part of the Port of Rotterdam complex in the Netherlands. At the conclusion of the services, the Master of the STELA signed a “Certificate of Safe Delivery” which stipulated that any dispute arising out of the provision of salvage services would “be settled in London, in accordance with English law”. Notwithstanding that stipulation, on 24 January 2024, Elise Tankschiffahrt KG as owner of the STELA commenced proceedings in the Rotterdam District Court seeking a declaration that the services provided did not amount to salvage and, in the alternative, for the Dutch Court to determine the salvage award. To commence proceedings in Rotterdam was an apparent breach of the jurisdiction agreement in the Certificate of Safe Delivery. The claimants therefore issued these proceedings in England and, on 20 February 2024, applied for an anti-suit injunction. On 21 March 2024, Andrew Baker J granted the application and made an anti-suit injunction against Elise Tankschiffahrt KG. Because neither the charterer of the STELA, Beresina UG, nor the operator of the VB Rebel, Boluda Towage Rotterdam BV, were parties to the jurisdiction agreement, he set aside service of the Claim Form in respect of the claims made by Boluda and in respect of the claims made against Beresina UG. He gave a fully reasoned judgment, reported under the neutral citation number [2024] EWHC 1329 (Admlty). [4]

The remaining defendant has defied the anti-suit injunction. It has continued its claim in the Netherlands. On 23 October 2024, the Rotterdam District Court gave an interim judgment in which it declared its competence to adjudicate upon the claim. I have not been supplied with the judgment itself. But in a witness statement of 4 February 2025 from Mr John Strange of Penningtons Manches Cooper, the claimants’ solicitors, I have been informed that the reasoning was that the jurisdiction agreement was not enforceable on the ground that it was “too vague as it specified the jurisdiction as ‘London’ rather than the English courts”.

Relevant Dutch judgment is Elise Tankshiffahrt AG and Beresina UG v SD Rebel BV and Boluda Towage Rotterdam BV ECLI:NL:RBROT:2024:10435. In that judgment, the Rotterdam court held it has jurisdiction on the basis of Article 4 Brussels Ia despite aforementioned clause in the certificate of safe delivery: “Any dispute arising out of the services performed by the tug, will be settled in London, in accordance with English law.” The Rotterdam court held that this clause is neither valid choice of court in accordance with A8(2) of the Dutch CPR, nor a valid arbitration clause in accordance with A1074 of the Dutch CPR. [4.6] it argued that for both, the clause needs to be ‘sufficiently clear and specific’ and that [4.5] the clause at issue simply refers to a place, not a medium: whether in courts in ordinary or indeed arbitration. I am not privy to submissions in the case and I do not know how extensively the issue was argued. Of note is all lack of reference to either the Hague Choice of Court Convention, Brussels Ia (with A25 arguably not covering choice of court away from the EU) or the 1958 New York Convention. [4.7] The Dutch court holds that the requirement of clarity and specificity is a procedural requirement covered by Dutch CPR as the lex fori, and not a substantive requirement in which English law as the putative lex causae can have a say (the court oddly refers to A3 and 10 Rome I, despite A1(2)e excluding choice of court and arbitration agreement from its scope of application). The court also [4.9] rejects a lis pendens stay on the basis of Dutch residual rules, and, summarily, an A33 Brussels Ia stay, with reference to the English claim form having been issued after the Dutch courts had been seized. At the time of posting the Dutch finding on the merits had not yet been published. Back then to the English judgment: [53] Davison AR like his Dutch colleague seems to have overlooked A1 Rome I’s exclusion of choice of court and applies English law as the putative law to the (alleged) choice of court agreement. [54] he holds Masters of vessels must, in the ordinary course, sign many documents of a commercial nature such as bills of lading, statements of fact, certificates of compliance etc. Mr Soukup would be no exception. The working languages of VTS Rotterdam and VTS Antwerp are English and Dutch. I find it hard to accept (especially without hearing from him and having his evidence tested in cross-examination) that Mr Soukup did not, in fact, understand what he was signing. But if that was the case, he should have made a proper enquiry, not a casual one. And having failed to do so, he and his principal are bound by the content of the document he signed. [55] deals with the alleged lack of certainty in the clause The document is clear (as Andrew Baker J has already found [this is in 2024] EWHC 1329 (Admlty): the interim ASI, GAVC]). It provides for English law and jurisdiction in London. On any reasonable interpretation that means the courts in London, including this court. A final anti-suit injunction is made, as is an award for the salvage services. Clearly the judgment will clash with the eventual Dutch judgment and how that in turn will be resolved, will be one to watch. Geert. https://bsky.app/profile/gavclaw.bsky.social/post/3ljz5hc2xss2j https://x.com/GAVClaw/status/1899016175897510296

In a judgment of 2 April 2025, the French supreme court for private and criminal matters (Cour de cassation) ruled that there is no exception in Article 25 of the Brussels I bis Regulation to the enforcement of jurisdiction clauses to ensure the application of the overriding mandatory provisions of the forum. As a consequence, […]

The multiple-award-winning book by Augustin Gridel (Université de Lorraine), Marchés et instruments financiers en droit international privé (Bruylant 2023), has just been published in English under the title Financial Markets and Instruments in Private International Law. A European and French Perspective. It features a preface by Louis D’Avout and a foreword by Christine Lagarde.

The blurb reads as follows:

The aim of this book is to describe, from a European and French perspective, the relationship between the law of financial markets and instruments and private international law. Where there is a foreign element, the rules of financial law are most often presented as overriding mandatory rules or administrative rules. The establishment of a national supervisory authority with administrative, normative and repressive powers is likely to amplify this perception, as is the appearance of financial law rules in litigation where they seem to derogate from the normally applicable solution rather than coherently form a new category. However, this presentation by means of the lois de police methodology does not provide an overall view of the body of legislation put in place by financial law, nor does it provide a key to the application of these rules.

In addition to taking place in a renewed legislative and institutional environment, this research does not limit its scope to one or other aspect of the internationalisation of the law of financial markets and instruments. The book covers both institutional aspects (organisation and administrative supervision of market managers and infrastructures, investment firms, including aspects relating to insolvency) and operational aspects (issuance of financial securities, marketing, liability for inaccurate prospectuses, crossing thresholds, takeover bids, market abuse), as well as the study of financial instruments themselves (ownership of financial securities and securities transactions; formation and execution of financial contracts). By taking a systemic look at the rules studied, this book aims to renew the presentation of financial law rules by placing them within rules of conflict whose unity derives not only from the links between the rules, but also from the common objective they pursue. The connecting factors proposed are based, where appropriate, on those of the market infrastructures themselves. The book concludes with a list of forward-looking proposals to ensure more consistent international application of financial law.

Lawyers, in-house counsel, regulators, students and academics interested in international financial law issues will find in this book a systematic account of the substantive rules applicable and their positive or desirable international scope.

The book can be ordered from the publisher Intersentia here.

Within the framework of the Jean Monnet Module CoME CircLE, the University of Udine, in cooperation with a consortium of European universities, now including University of Essex , De Montfort University of Leicester, University of West Timisoara, East Anglia University, University of Belgrade, University of Rijeka and University of Szeged, organizes the 18th edition of […]

by Shantanu Kanade, Assistant Professor, Dispute Resolution, Jindal Global Law School, India 

The Federal Court of Australia (“Federal Court”), in its recent judgement in the Republic of India v. CCDM Holdings, LLC[1] (“Judgement”), held that the Republic of India (“India”) was entitled to jurisdictional immunity from Australian Courts in proceedings seeking recognition and enforcement of foreign arbitral awards dealing with disputes arising from ‘non-commercial’ legal relationships. The Court’s judgment was rendered with respect to an appeal filed by India against an interlocutory judgement of a primary judge of the same court, rejecting India’s sovereign immunity claim.

Background of the Dispute

Three Mauritian entities of the Devas group (“Original Applicants”) had commenced arbitration proceedings in 2012 under the 1998 India-Mauritius BIT, impugning India’s actions with respect to an agreement for leasing of space spectrum capacity entered between Devas Multimedia Private Limited (an Indian company in which the Original Applicants held shares) and Antrix Corporation Limited (an Indian state-owned entity). In 2011, India’s Cabinet Committee on Security decided to annul the said agreement, citing an increased demand for allocation of spectrum towards meeting various military and public utility needs (“Annulment”). The arbitration proceedings that followed culminated in a jurisdiction and merits award in 2016[2] and a quantum award in 2020 (“Quantum Award”)[3]. The Original Applicants have since sought to enforce the Quantum Award against India in different jurisdictions, discussed here.[4]

 

Proceedings Before the Primary Judge

The Original Applicants commenced proceedings before a primary judge of the Federal Court (“Primary Judge”) in April 2021 for recognition and enforcement of the Quantum Award. In May 2023, the Original Applicants were substituted with three US entities of the Devas Group which were respectively assignees of each of the Original Applicants (collectively the “Applicants”).

India asserted that it was immune to the jurisdiction of the Federal Court under section 9 of the Foreign State Immunity Act, 1985 (“Act”), which states: “Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.” An exception to this general rule of immunity is provided in section 10(1), which states: “A foreign State is not immune in a proceeding in which it has submitted to the jurisdiction in accordance with this section.” Section 10(2) further provides that a State may submit to jurisdiction “by agreement or otherwise”. The Applicants argued that by ratifying the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (“Convention”), India has submitted to the jurisdiction of Australian courts by agreement within the meaning of Section 10(1) and (2) of the Act in relation to proceedings for recognition and enforcement of foreign arbitral awards.

In deciding whether India has waived its immunity, the Primary judge invoked the judgement of the High Court of Australia (“High Court) in Kingdom of Spain v Infrastructure Services (“Spain v. Infrastructure Services”)[5], which dealt with a similar claim of jurisdictional immunity by Spain with respect to enforcement of an ICSID Convention award. Observing that that the “standard of conduct for submission by agreement under Section 10(2) requires either express words or an implication arising clearly and unmistakably by necessity from the express words used”, the Primary Judge held that ratification of the Convention by India amounts to a “clear and unmistakable necessary implication” that it has agreed to submit to the jurisdiction of Australian courts as per Section 10(2).[6] The Primary Judge opined that permitting India to take a sovereign immunity defence would be inconsistent with Article III of the Convention, which requires all Contracting States to “recognize arbitral awards as binding and enforce them”.[7]

The Primary Judge noted that India had made a commercial reservation to the Convention, per which it would “apply the Convention only to differences arising out of legal relationships [. . . ] which are considered as commercial under the Law of India.” (“Commercial Reservation”). However, he did not consider this to be relevant to the instant case as enforcement of the Quantum Award was sought in Australia, which had made no such reservation.[8]

The Primary Judge thus rejected India’s claim to jurisdictional immunity, while granting leave to appeal to the Full Court of the Federal Court (“Full Court”).

 

The Full Court Judgement

 India appealed the judgement of the Primary Judge to the Full Court, contending that he erred in rejecting India’s plea on jurisdictional immunity. The Full Court framed two issues for consideration: (1) by ratifying the Convention, did India waive foreign state immunity in respect of enforcement of an award that is generally within the scope of the Convention but excluded by its Commercial Reservation (“Issue 1”), and (2) is the Quantum Award outside the scope of India’s Commercial Reservation? (“Issue 2”).[9]

On Issue 1, India asserted that it had not submitted to the jurisdiction of Australian courts with respect to proceedings for recognition and enforcement of awards that fell outside the scope of its Commercial Reservation. The Applicants submitted that the Commercial Reservation is a unilateral reservation that does not oblige other contracting States to the Convention (“Contracting States”) to limit recognition and enforcement of such awards in the same manner.

In considering these submissions, the Full Court undertook a detailed analysis of the rules set out in the Vienna Convention on the Law of Treaties (“VCLT”) that deal with the legal effects of reservations made by a State while expressing its consent to bound by a treaty. The Court observed that as the Commercial Reservation is a reservation “expressly authorised” by Article I (3) of the Convention, it falls within the terms of Article 20(1) of the VCLT and does not require any subsequent acceptance by other Contracting States. To determine the legal effects of the Commercial Reservation, the Court turned to Article 21 of the VCLT, read with the Guide to Practice on Reservations to Treaties published by the International Law Commission. Based on the foregoing analysis, the Court concluded that “the effect of a reservation is that between the reserving and accepting state (which in the case of the New York Convention is all other states), the reservation modifies the provision of the treaty to the extent of the reservation for each party reciprocally (. . .).”[10] Applying the said understanding, the Full Court opined that obligations under the Convention undertaken towards or by a Contracting State that has made a commercial reservation are limited by such reservation. Both India and Australia thus had no obligation towards each other to enforce awards that do no not pertain to “commercial” relationships under Indian law.[11]

The Full Court then considered whether India’s ratification of the Convention, qualified by its Commercial Reservation, entails a “clear and unmistakable necessary implication” that it has waived its immunity from Australian courts (as per the standard articulated in Spain v. Infrastructure Services). The Court found that no such implication arises as India’s ratification of the Convention subject to the Commercial Reservation is “a sufficiently (un)equivocal expression of India’s intention not to waive foreign State immunity in proceedings enforcing the Convention in respect of non-commercial disputes (. . . ).” [12]

Despite the parties not contesting Issue 2, the Full Court determined the issue for the sake of completeness of legal analysis. Interestingly, given the absence of evidence on what constitutes “commercial” relationships under Indian law, the Full Court approached the question of whether the Quantum Award fell within the scope of the Commercial Reservation from the perspective of Australian law (following case law from the High Court[13]). In doing so, the Court considered Section 11 of the Act, which provides for a “commercial transaction” exception to foreign State immunity. While acknowledging that considerations under Section 11 and those concerning India’s Commercial Reservation are different, the Full Court opined that there is a significant overlap between the two and proceeded to analyse the Quantum Award under Section 11. The Applicants had invoked the exception under Section 11 as a separate ground before the Primary Judge, which he rejected on the ground that the Annulment “was made by the body vested with the highest form of executive policy-making in India, and was stated to be for reasons of public policy” and was not thus not a “commercial transaction”. Reiterating the Primary Judge’s reasoning, the Full Court concluded that the Quantum Award is not an award dealing with differences arising from a “commercial” relationship.[14]

It is interesting to consider if the court’s approach would have been any different if it were answering this question from an Indian law perspective. The position under Indian law on whether awards rendered in investor-State arbitrations (“Investment Awards”) can be considered as pertaining to “commercial” relationships is ambiguous. Of particular relevance are two Delhi High Court judgements, in which the court opined that Investment Awards cannot be considered “commercial”  for the purposes of enforcement under Part II of the Arbitration and Conciliation Act (which implements the Convention in India).[15] Critics of these judgements, on the other hand, have emphasised that there is enough basis in Indian law and policy to suggest that Investment Awards are commercial in nature. Perhaps the strongest argument in this regard is that India’s 2016 Model BIT expressly states that Investment Awards “shall be considered to arise out of a commercial relationship or transaction for purposes of Article I of the New York Convention.”[16]

 

Reflections on the Judgement

The Applicants have filed a special leave to appeal the Full Court judgement (“Judgement”) to the High Court. The reflections shared below are thus subject to a potential reconsideration of the Judgement by the High Court.

Firstly, prevailing uncertainty regarding enforceability of Investment Awards in India (as discussed above) is what has prompted investors such as Devas to seek enforcement of such awards in other jurisdictions. In this regard, the Judgement could render Australia an unfavourable enforcement jurisdiction for Investment awards to which India is a party. This is because India could invoke jurisdictional immunity in all future enforcement proceedings until the ambiguity concerning the commercial nature of Investment Awards under Indian law is resolved (either through legislative action or a Supreme Court ruling).

Secondly, this Judgement may have significant implications for enforcement in Australia of all Investment Awards not rendered under the ICSID Convention and thus subject to enforcement under the Convention (“Convention Awards”). Spain v. Infrastructure Services has settled the position that jurisdictional immunity is not available to a foreign State under Australian law with respect to enforcement of ICSID Convention awards. This Judgement, however, casts a shadow of doubt on the enforceability of Convention Awards in Australia by leaving the door open for other Contracting States that have made a commercial reservation to the Convention to invoke jurisdictional immunity in enforcement proceedings for such awards.

Given its likely implications, it is no surprise that the Judgement has come in for criticism by some commentators[17] who have highlighted the following issues: (1) the Full Court’s approach to commerciality of Investment Awards is inconsistent with that of courts in comparable jurisdictions such as the US and Canada, which have enforced Convention Awards despite these States having made a commercial reservation to the Convention, and (2) the characterisation of the Quantum Award as ‘non-commercial’  is contrary to the wide interpretation of term “commercial” envisaged in the UNCITRAL Model Law[18], which has the force of law in Australia.[19]

All stakeholders will now have to wait and watch how the High Court, if and when it takes up the appeal, deals with the Full Court’s findings.

 

[1] Republic of India v CCDM Holdings, LLC [2025] FCAFC 2 (“Judgement”).

[2] CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited, and Telcom Devas Mauritius Limited v. the Republic of India, PCA Case No. 2013-09, UNCITRAL (“CC/Devas Arbitration”), Award on Jurisdiction and Merits (25 July 2016).

[3] CC/Devas Arbitration, Award on Quantum (13 October 2020).

[4] Jeanne Huang, The Indian Satellite Saga and Retaliation: Recognizing the Supreme Court of India’s Judgment Abroad?, Coonflictoflaws.net, https://conflictoflaws.net/2024/the-indian-satellite-saga-and-retaliation-recognizing-the-supreme-court-of-indias-judgment-abroad/#_edn1.

[5] Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2023] HCA 11.

[6] CCDM Holdings, LLC v Republic of India (No 3) [2023] FCA 1266, ¶ 51 (“Primary Judgement”).

[7] Primary Judgement, ¶43.

[8] Primary Judgement, ¶58.

[9]  Judgement, ¶54.

[10] Judgement, ¶67.

[11] Judgement, ¶68.

[12] Judgement, ¶72.

[13] Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54.

[14] Judgement,¶82.

[15] Union of India v. Vodafone Group, 2018 SCC OnLine Del 8842, ¶¶ 90-91; Union of India v. Khaitan Holdings (Mauritius) Limited & Ors, SCC OnLine Del 6755, ¶¶ 29-30.

[16]Model Text for the Indian Bilateral Investment Treaty (2016), Article 27.5, https://dea.gov.in/sites/default/files/ModelBIT_Annex_0.pdf.

[17] Micheal Lee, Check for NYC Reservations: Federal Court of Australia Affirms India’s Sovereign Immunity Against Recognition and Enforcement of Non-ICSID Arbitral Award, Steptoe Clients Alerts (26 March 2025), https://www.steptoe.com/en/news-publications/check-for-nyc-reservations-federal-court-of-australia-affirms-indias-sovereign-immunity-against-recognition-and-enforcement-of-non-icsid-arbitral-award.html?tab=overview.

[18] UNCITRAL Model Law on International Commercial Arbitration (1985),  Article I(1), footnote 2 states as follows: “The term “commercial” should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. [. . . ].”

[19] International Arbitration Act 1974, Section 16(1).

On 27 March 2025 the Court of Justice handed down the judgment in the Ławida case (C-57/24) concerning the scope of jurisdiction to receive declaration on waiver of succession under Article 13 of the Succession Regulation. The preliminary question originates from Poland. Facts of the Case BA is a minor habitually resident in Poland. The deceased […]

The author of this report is Meltem Ece Oba (Koç University, Istanbul). The post is being published simultaneously on Conflictoflaws.net and on the EAPIL blog.

 

 On 20-21 March 2025, a conference on “Characterisation in the Conflict of Laws” was convened at St Hilda’s College, Oxford. Under the auspices of the Institute of European and Comparative Law in the Law Faculty of the University of Oxford, the conference was jointly organised by Dr Johannes Ungerer (University of Oxford and Notre Dame University in England), Dr Caterina Benini (Catholic University of Sacred Heart, Milan) and PD Dr Felix Berner (University of Tübingen). The conference brought together scholars and practitioners from several jurisdictions around the world.

 

The conference’s topic, characterisation, is the process for identifying the nature or category of a particular cause of action (for instance contractual, tortious, proprietary, corporate, matrimonial), so that the correct connecting factor can be employed which then points to the applicable law or to the competent court. Characterisation poses difficulties where the action is domestically unknown or falls in-between two categories and could thus be potentially litigated in different fora or under different laws, leading to different outcomes. Different methods proposed for characterisation make this process even more complex. In this conference, participants explored characterisation from historical, methodological, critical, practical, and further perspectives with the aim to shed light on some of the most pressing and controversial issues of what arguably is the most crucial step for a court when determining its international jurisdiction and the applicable law.

 

Following the opening remarks by the three organisers, the first presentation addressed the history of characterisation. Professor Martin Gebauer (University of Tübingen) explored three main themes: striking parallels in time and content, strong contrasts, and finally the tensions in characterisation. Gebauer initially touched upon the ‘discovery’ of characterisation as ‘a child of the nineties of the 19th century’ in the works of Franz Kahn and Etienne Bartin. This was followed by the examination of the internationalist approaches. This led him to discuss autonomous characterisation and functional comparative law approaches as the ‘third direction’ through the work of Scipione Gemma and the changed views of Franz Kahn. Gebauer highlighted that the doctrinal views in this decade reflected the ideological battles over the foundations of private international law. He further discussed the developments in characterisation in the 20th century, such as the developments in comparative law and Rabel’s approach to characterisation. Finally, Gebauer considered characterisation in transnational and European law and its contribution to the homogenous understanding of conflict-of-laws rules within the EU. In the discussion following his presentation, the challenges of comparative law methodology and the need to consider a range of perspectives on characterisation (instead of a single one) were debated amongst other aspects.

 

The following presentations were dedicated to the process and particular problems of characterisation. The paper given by Professor Andrew Dickinson (University of Oxford) raised the question of “Is there any magic in characterisation?” with a focus on the courts of England and Wales. He provided seven steps of dealing with how the courts must engage with characterisation. Using a metaphor, he compared the attempts of describing the characterisation process to an attempt of describing the elephant in the Indian parable of ‘blind men and an elephant’. In this regard, Dickinson underlined that one can only provide an informative tool kit and cannot describe a full process of characterisation. He emphasised that all parts of a given rule and most importantly its purpose must be taken into account when characterising it. In this regard, he explained that ‘substance’ should be valued higher than ‘form’ and that ‘labels’ should not play a major role. Dickinson considered characterisation as being more of a practical issue from the common law perspective, and a process of interpreting a rule or a particular subset of settings; he thus concluded that there is no ‘magic’ in characterisation. Participants used the subsequent discussion for instance to contrast the Common law position with the Civilian approaches and to question the role of the judge and the parties when characterising a claim.

 

The next presentation was delivered jointly by Associate Professors Brooke Marshall and Roxanna Banu (both University of Oxford) on characterisation’s role in the jurisdictional inquiry in English courts. They began with an overview of the instances where the choice of law questions are raised at the jurisdictional stage in the context of granting permission for service out of the jurisdiction, exploring the relevant gateways in the Practice Direction 6B of the Civil Procedure Rules. Marshall critically examined the UK Supreme Court decision in UniCredit Bank v RusChemAlliance, demonstrating how the choice of law matters affect the international jurisdiction of English courts. Banu, from a more theoretical point of view, then discussed the a priori application of the lex fori to jurisdictional matters and the importance of theorising characterisation to understand the reasons why jurisdiction and substance are to be distinguished. The presentation was followed by a fruitful discussion which, among other issues, highlighted the problematic circular reasoning employed at the intersection of choice of law and jurisdictional characterisation.

 

The last paper of this session was presented by Professor Pietro Franzina (Catholic University of Sacred Heart, Milan) on ‘renvoi de characterisation’, that is, characterisation for the purposes of renvoi. At the beginning, he set the scene with regard to the meaning of renvoi and characterisation as well as the distinction between primary and secondary characterisation. Franzina explained that where the private international law of the forum contemplates the possibility of renvoi, the conflict of laws conceptions of a foreign applicable law should also be appreciated. In that regard, Franzina demonstrated through examples how the ‘second characterisation’ should reflect the taxonomy of the designated legal system (and, in some instances, the taxonomy of the different system specified under the conflict-of-laws rules of the latter system). He explained that characterisation for the purposes of renvoi is not given as much attention today as it used to receive, especially due to the greater weight that substantive policy considerations have progressively gained in private international law. The subsequent discussion addressed concerns over consistency in the interpretation of connecting factors in jurisdictional and applicable law matters.

 

The next session of the conference consisted of four presentations on challenges of characterisation in specific areas. The first speaker, Assistant Professor Joanna Langille (University of Western Ontario), focused on the distinction between substance and procedure. In this regard, Langille critically examined the use of the traditional common law distinction of rights and remedies for characterisation purposes. She took a Kantian rights-based approach to explain that the idea of right and remedy essentially merged or ‘shaded into’ one another. Langille argued for an alternative distinction between substance and procedure based on the nature of private rights. The adjudication process through which that determination is made should be subjected to the lex fori as the law of the community. In that sense, she viewed procedural law as being about publicity or the capacity of the courts to make law for the community as a whole and hence operating on a vertical plane. On the other hand, where the court is faced with a question that relates only to the horizontal relationship and, thereby, the reciprocal rights and duties between the two parties, foreign substantive private law should apply. Accordingly, the ‘provisions that are determinative of the rights of both parties’ were considered as substantive, whilst ‘the machinery of the forum court’ as procedural. She exemplified her views by reference to statutes of limitation. Among the issues raised during the subsequent discussion were the role of procedural law and of the lex fori in light of state sovereignty as well as the transcending boundaries of substance and procedure in instances like limitation statutes.

 

The next paper was delivered by Professor Yip Man (Singapore Management University) on the characterisation of equitable doctrines. While characterisation might have to start from a domestic law understanding, she embraced a functional approach in characterisation and argued for the pursuit of uniformity with an internationalist spirit and therefore against being constrained by domestic law notions. In that regard, she emphasised the importance of understanding the function of equity in arriving at the appropriate category. The conceptual diversity and complexity of equitable doctrines in Common law systems both in conflict of laws and domestic laws were discussed. Yip Man highlighted the objective of identifying the predominant characteristic of a legal institution, which she illustrated by reference to both remedial and institutional features. The relationship between the parties underlying the equitable obligations and remedies were also discussed as possibly being the predominant features to be taken into account. Finally, Yip Man analysed two recent decisions, Xiamen Xinjingdi Group Co v Eton Properties of the Hong Kong Court of Final Appeal and Perry v Esculier of the Singapore Court of Appeal. The discussion addressed the challenge of characterising equitable doctrines in Civilian courts, possible advantages when differentiating between substance and procedure when characterising equitable concepts, and the ‘fusion’ approach.

 

Moving on to the insightful presentations by two academically distinguished practitioners, Dr Alex Critchley (Westwater Advocates, Edinburgh) spoke about the characterisation of contractual arrangements in the context of family law where some of the most challenging questions arise. Critchley focused on two main issues, namely the way family law agreements differ from other contracts (or as to whether they can be characterised as contracts at all) and the extent to which they relate to other fields of law such as company law. In this context, he explained the international framework for contracts in international family law by exploring the EU and HCCH rules. He then exemplified family law agreements and their different forms such as nuptial agreements, care arrangements for children or agreements addressing corporate or property relationships between family members. This led to a discussion among all participants about choice of law rules for nuptial agreements, the characterisation of maintenance agreements, the 2007 Hague Protocol on the Law Applicable to Maintenance Obligations, and case law referenced by Critchley, such as F v M 2021 SLT 1121.

 

Looking at a very different area of law, Dr Thomas Klink (Higher Regional Court of Stuttgart) addressed characterisation in international M&A disputes, where issues arise in judicial practice especially when the purchase agreement did not contain a relevant and valid choice of law clause. In his presentation Klink initially examined the characterisation of purchase agreements both in the form of a ‘share deal’ or – less common – an ‘asset deal’. He hinted at the tricky ramifications if the selling shareholder is a natural person and could be considered to be a consumer for the purposes of Article 6 of the Rome I Regulation. He then moved on to characterisation challenges encountered in the preparation of the transaction and in respect of non-disclosure agreements/letters of intent, access to information, exclusivity, and the issues arising from the termination of negotiations such as break-up fees. Klink also touched upon company law issues such as the transfer of shares. Post-M&A disputes such as fraud cases were also addressed. Looking ahead, he expressed his expectation that the number of M&A disputes in the newly established International Commercial Courts will increase, which was then also discussed further by the conference participants. Other issues in the discussion included the consumer status of investors, the parallels between choice of law and jurisdictional characterisation in M&A disputes, and the latest case-law developments on concurrent claims. This concluded a day full of fruitful debates.

 

The second day of the conference began with a session on what the organisers had termed rethinking characterisation, exploring novel and more critical approaches to characterisation.

 

The first speaker in this session was Professor Jeremy Heymann (University of Lyon III Jean Moulin). Heymann’s presentation was entitled ‘characterisation from a unilateralist perspective’. He outlined the approach of unilateralism in contrast to multilateralism. Heymann argued that, from a methodological point of view, it is necessary to first identify a ‘legal order of reference’ and then to determine if the legal issue at hand and the facts of the case fall under the scope of this ‘legal order of reference’. Whilst indicating that the ‘legal order of reference’ of the judge should be the lex fori in most instances, he also highlighted that the law to be taken into account should correspond to the expectation of the parties. Through this conception of unilateralism Heymann argued that the law applicable to characterisation should be ‘much more the lex causae than lex fori’. In the subsequent discussion, the designation of the ‘legal order of reference’ was debated in addition to the challenges of taking into account the expectations of the parties. Heymann further commented on how some EU Regulations might provide for unilateral rules on certain private international law matters, such as the GDPR and the Air Passenger Regulation.

 

The second presentation in this session was delivered jointly by Philomena Hindermann and Professor Ralf Michaels (both Max Planck Institute for Comparative and International Private Law, Hamburg) with the provocative title ‘Against Characterisation?’. Michaels began the paper with a critique of the current approach to characterisation with reference to the English decision in Macmillan v Bishopsgate Investment Trust. He explained how such a methodology in fact conceals the real essence of legal reasoning behind characterisation. He then touched upon the attempts of the American Conflicts Revolution to overcome characterisation through interest analysis. Whilst acknowledging that overcoming characterisation is not possible, he argued for taking account of the policies behind legal rules in the process of characterisation. In this regard, Michaels criticised a process of characterisation through preliminary categories and argued instead that characterisation should be an ‘end result’. Building on this finding, Hindermann continued with the question as to whether there could be such a thing as ‘post-categorical characterisation’. She also criticised characterisation as reflecting certain presumptions and as omitting the policies and various functions of legal rules. Considering characterisation as an epistemological process she then questioned the need for categories and advocated for embracing a non-exhaustive / post-categorical functional approach. Therefore, instead of reducing characterisation to a pre-determined taxonomy, she argued that categories should be built based on each case by way of looking at the functions of the legal institution at hand. Participants to the discussion engaged with the reasons why the American realist thinking approach might or might not be compelling and also deepened the discussion from an EU perspective. The idea of categories under national laws having an open-ended nature as opposed to close-ended categories was further discussed on the one hand, as well as the concerns of legal uncertainty on the other hand.

 

The last speaker of this session was Professor Veronica Ruiz Abou-Nigm (University of Edinburgh). Her presentation covered characterisation as a tool to manage diversity and hence she focused on an epistemic change of perspectives in characterisation. Her paper started off with an explanation of the creation of a new delict under Scottish substantive law in relation to domestic violence. Furthermore, Ruiz Abou-Nigm considered a possible interplay with the 1980 Child Abduction Convention where under Article 13(1)(b) domestic abuse might constitute a reason to refuse the return of a child. Recognition and enforcement of civil protection orders were also discussed through this lens. As a conclusion Ruiz Abou-Nigm called for an internationalist approach to characterisation that takes into account feminist perspectives as well as the interplay of cultures. Ruiz Abou-Nigm argued that instead of taking the lex fori as a starting point, one should embrace an epistemological and pluralistic approach. In her view, the ‘order of reference’ of the judge in characterising a matter should be much more complex and international than the categories under the lex fori. Participants asked her how this inter-cultural approach should affect the application of the new Scottish law in a cross-border setting and raised the problem that embracing an inter-cultural approach might not appear to be supportive of a feminist normative approach. Participants also suggested ways that might foster pluralistic thinking with a feminist approach and commented on how the Istanbul Convention on Preventing and Combating Violence Against Women and Domestic Violence could be used for characterisation or interpretation.

 

The last session of the conference focused on the interplay of private and public international law. Professor Alex Mills (University College London) spoke about private international law treaty interpretation and characterisation. He started by examining the English common law approach to characterisation in order to draw comparisons between the methodology in the common law regarding the characterisation and the interpretation of international treaties. He explained that, since treaties are implemented through national laws in dualist systems, statutory interpretation is needed in their application whilst principles of international treaty interpretation are also taken into account. Mills argued that international treaty interpretation has commonalities with the common law approaches to characterisation, but that the judge should acknowledge where choice of law rules belong to an international body of law. He used the 2019 Hague Judgments Convention as an example and pointed to its explanatory report which indicates the ‘international spirit’, echoing the English common law approach. In the subsequent discussion, the internationalist interpretation was generally welcomed but its practical implications were questioned. The idea that international treaty interpretation was reflecting the common law approach was challenged by Civilian representatives, though Continental European approaches could also be understood as being too ‘rigid’ from the point of view of the English common law doctrine. Participants also pointed to the process in which the 2005 and 2019 Hague Conventions were drafted and how the consistency in the internationalist approach in both Conventions reflected a common understanding of the drafters.

 

The final paper of the conference was delivered by Professor Marta Pertegás Sender (Maastricht University and the University of Antwerp) discussed how characterisation questions were addressed at the Hague Conference for the purposes of drafting Conventions. Three main examples were given: first, Pertegás Sender explained that drafters increasingly employ provisions that regulate the scope of a Convention. As a second example of instances where the HCCH takes into account characterisation matters, she demonstrated how rather broad terms are preferred in the drafting of Conventions’ provisions that would establish a common ground for contracting states. Finally, she pointed out the fact that there does not exist a lex fori for the drafters of such international Conventions. Sender also highlighted that especially in the last two decades all of the Conventions emphasise the autonomous interpretation and the promotion of uniformity in their application. The preference for broad terms was challenged in the subsequent discussion as being too vague, especially in the absence of a special court system for the interpretation of HCCH Conventions. Interestingly, the consequences of ‘negative characterisation’ were discussed in relation to the aspects which are kept outside of the scope of the HCCH Conventions, in contrast to a true or ‘positive characterisation’ of what is within the scope of a particular Convention.

 

Concluding the conference proceedings, the three organisers expressed their gratitude to all speakers for their papers and to all attendees for their fruitful contributions to the discussion.

The author of this report is Meltem Ece Oba (Koç University, Istanbul). The post is being published simultaneously on Conflictoflaws.net and on the EAPIL blog. On 20-21 March 2025, a conference on “Characterisation in the Conflict of Laws” was convened at St Hilda’s College, Oxford. Under the auspices of the Institute of European and Comparative […]

The news about the Supreme People’s Court of the People’s Republic of China issuing the Notice on Procedural Matters Related to Civil Cases Involving Foreign State Immunity has been previously reported on this blog.

Following this significant development, Professor Susan Finder, a distinguished Scholar in Residence at Peking University School of Transnational Law, has kindly shared her insights on the matter. Her post was originally published on the Supreme People’s Court Monitor. Given its valuable contribution, we decided to repost it here.

Our sincerest thanks to Professor Susan Finder for her thoughtful analysis and generosity in sharing her thoughts.

 

At the end of March, the Supreme People’s Court (SPC) issued procedures to implement China’s Foreign State Immunity Law (the Law) in the form of a  “Notice on Procedural Matters in Civil Cases Involving Foreign State Immunity” (– Guanyu she waiguo guojia huomian minshi anjian xiangguan chengxu shixiang de tongzhi) (Notice). That law has been in force since the beginning of 2024.  Consistent with its practice, the SPC published a press release along with the text of the notice.  The press release, in the form of the head of the SPC’s #4 Civil Division’s answers to reporters’ questions, provides useful background. I surmise that the press release is an edited version of materials submitted to SPC leadership for approval (as described in my 2024 article). I had anticipated that the SPC would do so, after additional research and soliciting comments from both inside and outside the court system but had guessed that a notice would be issued in 2024.  Although the notice does not so state, I surmise that foreign state immunity cases will be considered “important and difficult” and therefore subject to special internal procedures.  See Professor William Dodge’s article for comparisons to US law and comments on the Law.  Professor Huo Zhengxin provides another perspective. This post summarizes the major points of the notice, with my comments.

1.  The general rule is that foreign governments and their property have immunity, with exceptions as set out in the Foreign State Immunity Law.  The press release usefully makes clear that Article 1 of the Notice requires that a plaintiff filing a civil lawsuits against a foreign state as a defendant or third party, must list in the complaint the specific provisions of the Law the lawsuit is based on, and explain which exception it falls into for the court to review. The court also has the responsibility to clarify (– Shiming) the complaint in the process of receiving the complaint. “Clarify/clarification” here is a term in Chinese Civil Procedure Law, analogous to a judge’s right in other civil legal systems–the “right to ask, suggest to or require the parties to clarify or supplement their ambiguous, insufficient or improper claims, submissions or evidence.” If the plaintiff still fails to set out the legal basis after the court’s clarifications,  the plaintiff should be deemed to not have met the court’s requirements, and the court should reject the case.
2. For those first instance civil cases that fall into the exceptions to the Foreign State Immunity Law, certain intermediate courts in provincial capitals (or their equivalent in directly administered cities, etc) have jurisdiction, as well as financial and intellectual property courts.  The notice limits the number of courts that can hear foreign state immunity cases (as I had surmised), through centralizing jurisdiction ( – Jizhong guanxia), but permits financial courts and intellectual courts to hear them and requires other courts to transfer cases that they have accepted to ones with jurisdiction.
3. Article 3 concerns service of process, which must be according to relevant treaties or conventions, or other means not prohibited by the law of the foreign country, or alternatively by diplomatic note (via the Ministry of Foreign Affairs) (Article 17 of the Law).  Service by announcement is prohibited.
4. The court must serve the complaint and other documents with a translation accompanying the original Chinese.  The foreign government has three months to file a defense. The court has the discretion to permit an extension of time.
5.  If the foreign state objects to the jurisdiction of the Chinese court, the court shall engage in a comprehensive review ex officio and may hear the views of the parties.  Participation in an objection procedure is not deemed acceptance of Chinese jurisdiction (also Article 6 of the Law).  If the foreign state does not respond or participate in the Chinese proceedings, the Chinese court must proactively review whether the foreign state has immunity and can hear the views of the parties.  (Article 18 of the Law). The press release provides guidance to lower courts on the review:  first, the people’s court should examine whether the reasons put forward by the foreign country for enjoying jurisdictional immunity are valid; second, if the reasons put forward by the foreign country are not valid, the people’s court should also conduct a comprehensive review on its own initiative, that is, in addition to the reasons, examine whether the foreign country really enjoys jurisdictional immunity and does not fall into the exception to jurisdictional immunity.
6.  If a court requires a certificate  on factual issues of state behavior from the Ministry of Foreign Affairs (further to Article 19 of the Law), it shall report to the Supreme People’s Court level by level (– Zhuji bao)  to consult and request ( – Shangqing) the Ministry of Foreign Affairs to issue a certificate.  This one sentence conveys the bureaucratic operation of the Chinese court system and the nuances of inter-bureaucracy relations.

An attachment to the notice lists the authorized courts. The SPC has approved some of these courts to establish international commercial tribunals (courts).  It is likely that those tribunals will hear sovereign immunity cases:

1. Beijing Fourth Intermediate People’s Court (with an international commercial tribunal)
2. Tianjin No.3 Intermediate People’s Court
3. Shijiazhuang Intermediate People’s Court of Hebei Province
4. Taiyuan Intermediate People’s Court of Shanxi Province
5. Hohhot Intermediate People’s Court of Inner Mongolia Autonomous Region
6. Shenyang Intermediate People’s Court, Liaoning Province
7. Changchun Intermediate People’s Court of Jilin Province
8. Harbin Intermediate People’s Court of Heilongjiang Province
9. Shanghai No.1 Intermediate People’s Court (with an international commercial tribunal)
10. Nanjing Intermediate People’s Court of Jiangsu Province (with an international commercial tribunal)
11. Hangzhou Intermediate People’s Court, Zhejiang Province (with an international commercial tribunal)
12. Hefei Intermediate People’s Court, Anhui Province
13. Fuzhou Intermediate People’s Court of Fujian Province
14. Nanchang Intermediate People’s Court of Jiangxi Province
15. Jinan Intermediate People’s Court, Shandong Province
16. Zhengzhou Intermediate People’s Court of Henan Province
17. Wuhan Intermediate People’s Court, Hubei Province
18. Changsha Intermediate People’s Court of Hunan Province
19. Guangzhou Intermediate People’s Court, Guangdong Province
20. Guangxi Zhuang Autonomous Region Nanning Intermediate People’s Court
21. Hainan Provincial First Intermediate People’s Court
22. Chongqing First Intermediate People’s Court
23. Chengdu Intermediate People’s Court of Sichuan Province
24. Guiyang Intermediate People’s Court, Guizhou Province
25. Kunming Intermediate People’s Court, Yunnan Province
26. Lhasa Intermediate People’s Court of Tibet Autonomous Region
27. Xi’an Intermediate People’s Court of Shaanxi Province
28. Lanzhou Intermediate People’s Court of Gansu Province
29. Xining Intermediate People’s Court of Qinghai Province
30. Yinchuan Intermediate People’s Court of Ningxia Hui Autonomous Region
31. Urumqi Intermediate People’s Court, Xinjiang Uygur Autonomous Region

 

Registration is now open for the Summer School ‘Consumer and Market Law in the European Circular Economy’ which will be held from 9 to 18 July 2025: 9-11 July online and 14-18 July in presence at the University of Udine, Italy.

The Summer School is organised by the University of Udine, in cooperation with a consortium of European universities, including University of Essex, De Montfort University of Leicester, University of West Timisoara, East Anglia University, University of Rijeka, University of Belgrade and University of Szeged, within the framework of the Jean Monnet Module CoME CircLE.

The 2025 Summer School will consist of 40 hours of lectures, a workshop and a moot court. Attendees will be offered a comprehensive training on the legal discipline of consumer protection and market regulation in the EU Law, with a particular reference to circular economy, taking into account the following relevant topics: Consumer protection and empowerment issues; Private international law issues; Dispute resolution and redress issues; and Market regulation.

Eligible are undergraduate students, graduatestudents and PhD students, studing Law, Economics, Political Science or International Relations. Application deadline is 31 May 2025, 12.00 pm GMT. Those who are interested in applying, need to fill in the application form and submit it to ip.europeanlaw.uniud@gmail.com.

For details see the programme and the call for application.

In April 2025, Advocate General J. Kokott will deliver her opinion on joint cases C-672/23 , Electricity & Water Authority of the Government of Bahrain e.a., and C-673/23, Smurfit Kappa Europe e.a. The publication is scheduled for Thursday 3. The EAPIL blog has already reported on these (partially identical) Dutch requests for a preliminary ruling concerning […]

HCCH Monthly Update: March 2025

 

Membership

On 5 March 2025, Rwanda deposited its instrument of acceptance of the Statute, becoming the 92nd Member of the HCCH. On the same day, Guatemala applied to become a Member of the HCCH. More information is available here.

 

Conventions & Instruments

On 1 March 2025, the 2005 Choice of Court Convention entered into force for North Macedonia. At present, 37 States and the European Union are bound by the Convention. More information is available here.

On 5 March 2025, Costa Rica signed the 2005 Choice of Court Convention. The Convention will enter into force for Costa Rica?only after it deposits an instrument of ratification pursuant to Art. 31(2) of the Convention. On the same day, Colombia signed and ratified the 2007 Child Support Convention, which will enter into force for Colombia on 1 July 2025. More information is available here.

On 11 March 2025, the Republic of Moldova acceded to the 1996 Child Protection Convention. With this accession, the Convention now has 57 Contracting Parties. It will enter into force for the Republic of Moldova on 1 January 2026. More information is available here.

On 13 March 2025, Bahrain acceded to the 1970 Evidence and 2005 Choice of Court Conventions. The 1970 Evidence Convention, which currently has 67 Contracting Parties, will enter into force for Bahrain on 12 May 2025. As for the 2005 Choice of Court Convention, it currently binds 37 States and the European Union and will enter into force for Bahrain on 1 July 2025. More information is available here.

On 23 March 2025, the 2007 Child Support Convention entered into force for the Dominican Republic. At present, 53 States and the European Union are bound by the 2007 Child Support Convention. More information is available here.

 

Meetings & Events

From 4  to 7  March 2025, the Council on General Affairs and Policy (CGAP) of the HCCH met in The Hague, with over 490 participants joining both in person and online. CGAP mandated the establishment of several new Experts’ Groups (EGs) and Working Groups (WGs) and mandated the continuation of the work of several ongoing EGs and WGs. It also approved the establishment of a Regional Office for Africa, to be hosted by Morocco in Rabat. More information is available here.

From 11 to 13 March 2025, the Regional Workshop on Intercountry Adoption: Sharing Experiences on the Effective Implementation of the 1993 Adoption Convention in Asia was held in Manila (Philippines). More information is available here.

On 19 March 2025, the sixth meeting of the Working Group established to complete the Country Profile and work on the draft Cooperation Request Recommended Model Form for the 1996 Child Protection Convention was held online, hosted by the Permanent Bureau in The Hague. More information is available here.

From 24 to 26 March 2025, the Experts’ Group (EG) on Central Bank Digital Currencies (CBDCs) held its third working meeting. Pursuant to its mandate, the EG made further progress on the study of the applicable law and jurisdiction issues raised by the cross-border use and transfers of CBDCs. More information is available here.

 

Publications

On 4 March 2025, the Permanent Bureau announced the publication of the HCCH 2024 Annual Report. More information is available here.

 

Vacancies

Applications are now open for three- to six-month legal internships for the period from July to December 2025. The deadline for the submission of applications is 25 April 2025. More information is available here.

Applications are now open for a part-time, remote Communications and Outreach Internship, preferably starting in July 2025. The deadline for the submission of applications is 27 April 2025. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.