GAVC

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.

In Re Tesla, Inc. Derivative Litigation C.A. No. 2024-0631-BWD, the Delaware Court of Chancery the day before yesterday essentially held that a shareholder (majority) move of seat, with coinciding amendment of the corporation’s bylaws re choice of court for derivative action, implies that the newly mandated venue applies even to claims filed prior to the move taking effect.

The ratione temporis and conflit mobile question was at issue in Tesla’s successful motion to dismiss a number derivative shareholder claims, based on an (amended) forum selection clause.

As the FT Reports, “At stake were a series of investors’ lawsuits that had accused Musk of breaching his duties to Tesla’s shareholders. [Claimants] argued he had diverted resources from the EV maker to other companies in his universe, and that he had sold stock while in possession of negative information about Tesla.”

The Texas Forum Bylaw was publicly proposed with the Redomestication [change of seat, GAVC] on 17 April 2024; the derivative actions were filed on 24 May, 10 June, and 13 June, respectively. The Texas Forum Bylaw was adopted on 13 June, so by the time Defendants appeared in the Actions on 25 June and 16 September, the Texas Forum Bylaw was in effect.

The relevant Civil Procedure Rule is the US Federal Rule 12(b)(3), improper venue. Relevant authority is Ingres Corp v CA Inc: Forum selection provisions, including those contained in corporate bylaws, “are ‘presumptively valid’ and should be ‘specifically’ enforced unless the resisting party ‘[] clearly show[s] that enforcement would be unreasonable and unjust, or that the clause [is] invalid for such reasons as fraud and overreaching.’”

The judge rejected arguments that venue be determined at the time a complaint is filed, arguments which were based on federal precedent found not to apply to the case, but she also generally referred to Tesla not having exercised a unilateral right to alter its forum selection bylaw, nor having done so months after the claims were filed. The judgment concedes that Delaware courts sometimes do look to later points in time when determining venue, such as when the defendant appears or at the time a movant seeks transfer.

Vice Chancellor David emphasised however that

A stockholder does not have a vested right to litigate in a particular forum, even for claims arising from past conduct, because the contractual relationship “among the directors, officers, and stockholders formed within the statutory framework of the DGCL [Delaware General Corporation Law, GAVC]” is, “by design, flexible and subject to change in the manner that the DGCL spells out and that investors know about when they purchase stock in a Delaware corporation.”

and in essence

I am loath to second-guess Tesla stockholders’ chosen forum by purporting to weigh the advantages and disadvantages of Texas law and procedure relative to our own.

All in all an interesting comparative conflicts judgment.

Geert.

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.

I fear this post is fairly anorak, meant for the die hard conflicts nerd. In X v Y ECLI:NL:RBMNE:2026:1482 (the usual anonymisation nonsense), essentially a claim by a Dutch consumer against a set of BVI companies, the Rechtbank Midden-Nederland, in interlocutory proceedings, ordered the BVI companies to surrender relevant data on the holder of a wallet in their crypto exchange. The wallet allegedly holds ia the crypto currencies financed by X, following a ‘boiler room’ fraud.

My reason for flagging it lies in the interesting approach of the court towards using, or not, Brussels I authority in its application of the residual space: national private international law that fills the gap where EU law does not apply. Of course whether or not to do so is the prerogative of the Member States: EU law has no bearing on it.

Here, the court [3.7] generally holds that seeing as what was A5(3) of the Brussels Convention and the Brussels Ia Regulation, served as a model for the Dutch residual rule of Article 6e CPR, CJEU authority may be used as guidance for the interpretation of the Dutch rules.

However it then [3.9] holds that the very qualification of a claim as in in tort, must not so use CJEU authorities, instead relying on lex fori: “It is not obvious that the definition of the term ‘tort’ should be aligned with the much broader interpretation given to this term by [the CJEU]”: one assumes it is thinking here of the CJEU Kalfelis formula, where the Court of Justice held [17] that ‘matters relating to tort, delict and quasi-delict’ “covers all actions which seek to establish the liability of a defendant and which are not related to a ‘contract’ within the meaning of Article [7](1).”

[3.11] the court refers to Dutch substantive lex fori to qualify the claim as one in tort.

Article 6e CPR allocates jurisdiction to the Dutch courts insofar as the “place where the harmful event occurred” took place in The Netherlands. Here the court [3.13] holds that CJEU authority can fully play, subsequently referring to CJEI Bier’s locus delicti commissi /locus damni distinction, and placing the locus damni in The Netherlands (in particular the loss of the opportunity, were the data not surrendered, of claiming compensation etc from the fraudsters.

I m not sure whether there is a PhD in the application of BIa to residual PrivIntLAw in the Member States. But there most certainly is a good paper in it.

Geert.

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.

Stichting Offlimits v X.AI llc,. X Corp, X Internet Unlimited Company ECLI:NL:RBAMS:2026:310, in which the courts at Amsterdam issued an injunction yesterday, echoes some of the themes of SEOK v Hammy Media. Of relevance to the blog of course are the jurisdictional issues.

X.AI is domiciled at Palo Alto, X Corp at Texas, and X Internet Unlimited Company ‘XIUC’ at Dublin.

[4.1] The Stichting’s claim serves two purposes, namely 1) to ensure that Grok and X no longer offer functionality that allows for the generation and  distribution of images depicting naked, existing individuals without their consent (‘non-consensual nude images’), and 2) to ensure that it is no longer possible to use Grok and X to generate and distribute child sexual abuse material ‘CSAM’.

The Stichting’s claim has a dual cause of action: the GDPR viz image generation of existing people; and tort (under Dutch law) viz CSAM (because it may also involve non-existing individuals. This has an impact on jurisdiction.

The court applies a textbook approach to jurisdiction [4.4] ff. It first assesses jurisdiction against XIUC (‘processor’ within the meaning of the GDPR): for the claim viz non-consensual nude images The Netherlands per A79(2) GDPR [as I detail here]:

Proceedings against a controller or a processor shall be brought before the courts of the Member State where the controller or processor has an establishment. Alternatively, such proceedings may be brought before the courts of the Member State where the data subject has his or her habitual residence, unless the controller or processor is a public authority of a Member State acting in the exercise of its public powers.

The Netherlands is Off Limits’ habitual residence. Territorial jurisdiction is determined by Dutch civil procedure rules – CPR and rests with the courts at Amsterdam.

For the claim viz CSAM also The Netherlands, as locus damni per A7(2) Brussels Ia.

[4.7] the court accepts jurisdiction viz the US entities on the basis of the joinder and anchor defendant rules in Dutch CPR (A8 Brussels Ia does not apply to non-EU domiciled defendants); the claims are clearly related to the Dutch claims.

[4.8] Applicable law is determined as the GDPR for the non consensual images claim and Dutch law as lex voluntatis per A14 Rome II.

Privacy lawyers will be interested to read the remainder of the judgment with the court being unimpressed with X’s argument that GROK has been fixed to avoid generation of both types of images. Claimant produced stills showing the exact opposite.

In an echo of  the right to be forgotten, the court then limits its injunction (a ban on offering GROK with the relevant functionality) viz the US entities re the non-consensual images, to offering the functionality to individuals domiciled in The Netherlands (because the US entities do not themselves offer services in The Netherlands). That limitation is not extended to XIUC: here the court orders XIUC to simply block the offer on X, of GROK with the relevant functionality.

Conclusion: the court in essence

[5.1.] prohibits X.AI from generating and/or distributing sexual imagery insofar as this involves the use of functionality whereby persons are partially or fully undressed without having given their express consent, insofar as this concerns persons domiciled in the Netherlands;

[5.2.] prohibits X.AI from producing, distributing, offering, publicly displaying and/or possessing sexual imagery in the Netherlands insofar as this involves the use of functionality whereby imagery is generated that qualifies as child pornography under Dutch law;

[5.3.] orders X.AI to confirm in writing to Offlimits that and how it has complied with the prohibitions under 5.1. and 5.2.;

[5.4.] orders X. AI to pay Offlimits a penalty of €100,000.00 for every day or part thereof that it fails to comply with (one of) the prohibitions under 5.1. or 5.2., or with the order under 5.3., until a maximum of €10,000,000.00 has been reached,

[5.5.] prohibits X from offering the functionality of Grok as part of the X platform for as long as Grok acts in breach of the prohibition under 5.1.;

[5.6.] orders X to confirm in writing to Offlimits that and how it has complied with the requirement under 5.4.;

[5.7.] orders X to pay Offlimits a penalty of €100,000.00 for every day or part thereof that it fails to comply with the prohibition in 5.5. or the requirement set out in 5.6. is met, up to a maximum of €10,000,000.00,

[5.8.] prohibits XIUC from offering the functionality of Grok as part of the X platform for as long as Grok acts in breach of the prohibitions set out in 5.1. and 5.2.;

[5.9.] orders XIUC to confirm in writing to Offlimits that and how it has complied with the prohibition under 5.6.;

[5.10.] orders XIUC to pay Offlimits a penalty of €100,000.00 for every day or part thereof that it fails to comply with the prohibition under 5.8. or the order under 5.9., up to a maximum of €10,000,000.00

Geert.

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.

When I first flagged the claim by Belgian farmer Hugues Falys v Total, I concluded with

“Re the jurisdictional issues see likely Total use of an argument which I flagged here: viz an emerging corporate strategy to deflect A7(2) forum damni jurisdiction, the argument that a causal link between the damage and the alleged shortcoming of the defendant needs to be shown in the claim form itself for it to ground jurisdiction.”

My short paper for Lex&Forum flags this and other issues related to climate claims and private international law; in my post on Lluya v RWE I note the shortcomings in the German Court of Appeal’s Article 7 Rome II applicable law analysis (I had earlier expanded on Article 7 here); the earlier post on Hagues Falys contains some updated bibliographical references; and Stefania Bariatti et al have a considerable volume here dealing with ESG principles relevant to the claims, including chapters on jurisdiction and applicable law.

The first instance court at Tournai /Doornik issued its interlocutory judgment yesterday, holding solely on jurisdiction and applicable law and concluding with an Article 30 Brussels Ia stay. Guillaume Croisant has posted early overview here.

In essence, the Belgian court holds it has jurisdiction on the basis of Article 7(2) of the Brussels Ia Regulation: ‘locus damni’ jurisdiction, and that Belgian law applies to the case.

Note of course immediately that the judgment, if upheld on appeal, does not of course mean that Belgian or EU courts have jurisdiction as locus damni against all oil majors wherever incorporated: Article 7(2) only applies to defendants with domicile in  the EU.

Total had essentially argued what I had predicted, namely an emphasis on the diffuse nature of the damage in climate claims. Its objection to jurisdiction for the Belgian courts on the basis of A7(2) Brussels Ia relies on the foreseeability of damage and on a restrictive interpretation of CJEU Bier. It emphasises the CJEU’s reasons for its foundational approach to Article 7’s split between Handlungsort [place of the (in)action leading to the damage] and Erfolgort: [place where the damage occurs (or may occur)]. These foundational principles, it argues, are foreseeability and proximity (of the courts with jurisdiction, to the place of damage).

The court disagrees that these foundational principles are infringed in a finding of jurisdiction in Belgium [more specifically, the local legal district: A7(2) assigns territorial and not just national jurisdiction] as locus damni. It notes p.10: precisely following CJEU Bier, Total can hardly be surprised to find itself being sued in a place other than its place of domicile; and proximity is of course met where the alleged damaged occurred slap bang in the legal district seized.

However it is on this point that I feel the court may be a touch optimistic in its application of A7(2) locus damni jurisdiction: (footnotes omitted)

TE soutient que le Tribunal doit préalablement examiner l’existence du lien causal entre le fait générateur et le dommage allégué, en ce sens qu’à défaut de preuve de lien étroit suffisant entre les deux, la competence du tribunal de céans doit être déclinée.

S’il paraît justifié de procéder à un examen prealable au stade de la competence, celui-ci ne saurait se muer en un procès avant le procès et cette question doit naturellement être soumise a un examen « prima faciae », ce qui suppose d’apprécier uniquement si les prétentions du demandeur ne paraissent pas invraisemblables.

En l’espece, il ne paraît pas invraisemblable que les EME [court shorthand for ‘climate emergencies’, GAVC] dont se plaint Monsieur FALYS aient causé le dommage qu’il soutient avoir subi et que ces mêmes phénomènes soient en lien causal avec des émissions de gaz a effet de serre.

Translated this would read

[Total] contends that the Court must first examine whether there is a causal link between the event giving rise to the claim and the alleged damage, in that, in the absence of sufficient evidence of a close link between the two, this Court must decline jurisdiction.

Whilst it appears justified to carry out a preliminary examination at the stage of determining jurisdiction, this must not turn into a trial before the trial, and this question must naturally be subject to a ‘prima facie’ examination, which involves assessing only whether the claimant’s claims do not appear implausible.

In the present case, it does not appear implausible that the climate emergencies complained of by Mr FALYS caused the damage he claims to have suffered and that these same phenomena are causally linked to greenhouse gas emissions.

The judgment cites one (scholarly) source for this contention. The court is certainly correct that there must not be a mini trial. However the CJEU with its mozaik, distributive jurisdiction approach per Shevill, does emphasise the  actual existence and demonstration of damage within the jurisdiction and one could also point to CJEU Mittelbayerischer Verlag – mutatis mutandis – as one of the recent cases circumscribing A7(2) scope. I am not saying that claimant did not in fact meet with a higher evidentiary standard. Yet with its ready acceptance and superficial burden of proof, the court imo takes the favor laesis (goodwill for the victim) implication of CJEU Bier too far.

Having established jurisdiction, the court most succinctly opts for Belgian law as the applicable law as a result of Article 7 Rome II. It does not discuss the many angles to Rome II which could have (and I understand, had actually been) raised by Total (in earlier submissions). Instead it held that Total had conceded the applicable law point should the court accept jurisdiction. I am not privy to all parties’ submissions and I was not at the hearings, yet if Total had not so in fact conceded then of course this is a clear ground for appeal.

Eventually the court decides to stay its case on the basis of Article 30 Brussels Ia’s ‘related cases’ provision. The court found sufficient connection with a parallel French proceeding against Total in Paris. I could not find further detail on that case (with claim number, “role n°” 22/03403) hence I cannot say much about it, yet of course an A30 stay is very much to the discretion of the judge seized. The Belgian judges note p.17 that while claimants are different, the objective of both the French and the Belgian proceedings are the same:

to secure an order requiring TOTAL ENERGIES to reduce its GHG emissions and fossil fuel production, and to refrain from making any new investments in projects related to these, on a global scale.

Given that both cases ultimately seek to compel the company to reduce its GHG emissions and fossil fuel production on a global scale, the judges hold that there is a genuine risk of irreconcilable outcomes, and seeing as Paris is expected to rule in mid (European) spring,they stay the Belgian case. The court emphasises in parting that this is merely to secure sound administration of justice as per Brussels Ia’s lis pendens requirements, that it reaffirms its findings on jurisdiction, and that is is not merely bowing to the Paris courts.

The judgment will be appealed at any event. I wonder whether upon appeal the same approach will be taken re burden of proof (or a reference made to the CJEU; current court saw no need at all); and whether there will be more engagement with Article 7 Rome II, which will be most welcome. Of course by the time of an appeal, the lis pendens issue will have become moot, lest any spring Paris judgment will in turn be appealed.

Geert.

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.

Probably because I am reporting this case in the middle of a very busy few months, the title of this post as not as punchy as one might have expected. However at least the post does what it says on the tin.

Thank you Ludo Veuchelen en Urs Rybi for alerting me yesterday to Eckart von Malsen’s post on the judgment of the first instance court at Paris in Sherpa v Yves Rocher. Yves Rocher has been found to have fallen short in their duty to ensure respect for the freedom of association in their supply chain.

Un grand merci to the clerks at the tribunal who sent my copy of the judgment most most swiftly.

Eckart summarises the main background as

Out of 81 former employees, only nine who had not signed a 2019 settlement agreement retained standing, together with Turkish union Petrol‑Is and French NGOs Sherpa and Action Aid. The court found that these nine workers were dismissed because of their trade union membership, that Yves Rocher had enough information to identify a serious risk to freedom of association, and that proper inclusion of this risk in the vigilance plan would have prevented the harm up to 2019.​

Yves Rocher is the French mother corporation of the Turkish group subsidiaries. In that respect the case differs from eg Dyson, which involved supply chain due diligence at arm’s length.

Of interest to the blog, are the conflict of laws elements. Yves Rocher argue that the law which applies to the employees non-contractual claim, is Turkish law as a result of the Rome II Regulation, it being the lex loci damni: the law of the place where the damage took place.

In its view, the French Droit de Vigilance, France’s main supply chain due diligence statute, was not intended as a lois de police or ‘overriding mandatory law’ rule per A16 Rome II. And that even if it was so intended, that that  displacement has no effect on the conflict of laws elements.

Yves Rocher also argue that the EU’s Corporate Sustainability Due Diligence Directive 2024/1760, CS3D for short, has no bearing on the interpretation of the French devoir de vigilance, and that even if it does, the EU’s Omnibus  Directive (now published as Directive 2026/470) which was being debated at the time of the hearings, most in turn have an impact seeing as at intended to remove (as I discussed at the time) and in the end did so remove A29(1) (7)’s provisions on civil liability and lois de police.

The result of the application of Turkish law notably would impact the statute of limitation. Defendants argue,all claims have been served out off time.

The court refers to CJEU HUK -Coburg for its discussion of lois de police under Rome II (and on a side-note, Da Silva Martins) concluding [56] that the CJEU applies a strict interpretation to A16 Rome II, requiring both a sufficient nexus with the forum, and a law considered to protect an interest fundamental to society in the forum.

The court then reviews the many references in the travaux of the Droit de Vigilance, to international human rights, OECD and other soft-law in the area, and [63] to one of the conclusions of the French Government when it proposed the law, that it should be ‘loi impérative’, designed to protect the weaker in society. [75] it concludes that the duty of care introduced by the Act [Article L225-102-2] is a lois de police within the meaning of Rome II.

[76] it refers to the sentiment of the CS3D echoing the intention of the Droit de Vigilance and [77] to Omnibus’ deletion of A29(1) and (7) not having taken away Member States’ continued possibility to regard their own due diligence laws, whether or not taken in application of the CS3D, as being lois de police.

The remainder of the judgment then firstly holds the French 5 year statute of limitation has not been exceeded, and it extensively deals with the question whether Yves Rocher have fallen short of their duties of vigilance. It concludes it has.

The judgment confirms what many including myself have suggested: Omnibus has not increased predictability for corporations. It has decreased it. Those who believe the deletion of A29(1) and (7) has somehow improved legal certainty for corporations, simply err.

Geert.

EU Private International Law, 4th ed 2025, Chapter 7.

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

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

E.ON Czech Holding of course features prominently.

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

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

The case concerns two types of claims:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Geert.

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

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.

The Opinion of Advocate General Rantos in C-232/25 [Idziski] (at the time of writing not available in English) focuses on eDate and Bolagsupplysningen’s ‘centre of interests’ test in the context of Article 7(2) Brussels Ia jurisdiction for infringement of personality rights. (The case formally concerns A5(3) Brussels I however there is no material difference).

Applicants Z.R. (an indivdual) and Ś. (an organisation representing former soldiers’ interests) claims an infringement of personality rights by a series coproduced by the defendants, who are domiciled in Germany. The contested series traces the fates of a number of characters (a friendship group of young Germans) during World War II. Part of the story involving one of the main characters takes place in the Polish territories under German occupation. A crucial aspect of this plot strand is a meeting between this character and the underground military unit mentioned in the questions referred for a preliminary ruling; the soldiers belonging to the relevant military unit make clear their attitudes towards Jews during this meeting.

Names etc are anonymised in the proceedings however it does not take long to figure out the series concerned is Unsere Mütter, unsere Väter – aired on Polish TV but also available for streaming. Lower courts’ findings and orders including for public apologies are all being appealed and current reference by the Supreme Court enquires about the jurisdictional issue.

Claimants argue centre of interests per CJEU eDate, and argue there is identifiability, required per CJEU Mittelbayerisher Verlag. They distinguish that case by referring to the fact that the content infringing personality rights pertained to an entire nationality, and the applicant invoked membership of this nationality; in the present case, however, the plot of the film describes the behaviour of a narrower and closed group of individuals, namely the soldiers of the relevant military unit, and unambiguously and undeniably identifies this unit.

The alleged infringement of personality rights follows not from a posting on the internet (prima facie required per CJEU eDate and confirmed in CJEU Wintersteiger) rather from a cinema and film broadcast on terrestrial TV in a number of Member States, including Poland, whereby the applicants had their centre of interests in Poland. The Polish SC essentially wonders whether the ‘internet’ element is still relevant seeing as technological advances have led to a blurring of the boundaries between traditional forms of long-distance broadcasting and the distribution of the content via the internet.

The AG (53) firstly suggests the relevant technological context is the 2015 one, when the claim was formulated: not the 2026 one.  I for one would suggest his opinion should hold even in 2026 circumstances.

(56) He justifiably reminds us again of the need to interpret all exceptions to Article 4 Brussels Ia domicile jurisdiction restrictively, and in the specific context at issue, that not all territorially broadcasted content necessarily ends up online; reviewing it ad hoc would not serve predictability. (59) This leads to bifurcation: for the terrestrial part of the broadcast, CJEU Shevill is the relevant authority, and for the internet part, eDate. As for the identifiability, the AG essentially reminds the judge of the Mittelbayerischer Verlag criteria and (67) suggests a presumption against such identifiability.

The second preliminary question is relevant only if (as indeed the AG suggests) the answer to the first question likely leads to non-applicability of the eDate route hence only limited (A7(2) locus damni) jurisdiction for the   Polish courts. Might it then encompass at least some of the nonpecuniary claims lodged by the applicants: that specific information be displayed whenever the film is broadcast and that a corresponding statement be published. The AG sees no issue with that, provided the territorial consequences are limited.

(80) the AG ends with the remark that the mozaik approach is not ideal for claimants at issue and in similar cases, however he suggests, rightly in my view, that such is the consequence of long-standing authority and not something the CJEU rebus sic stantibus (statutory intervention being an issue for the legislator) should alter.

A sensible Opinion.

Geert.

This post has been written by Dr Mykola Lazeranko, postdoctoral fellow at KU Leuven Law. I am most grateful for his contribution. Of note is that Mykola’s aim is not to highlight whether the Russian courts are correct in their approach; rather to document their private international law methodology.

Geert.

Introduction

Mid-December 2025, news outlets across Europe and beyond reported that the Central Bank of the Russian Federation had initiated proceedings against Euroclear in the Moscow Arbitration Court, seeking approximately USD 229 billion in relation to frozen Russian assets (see Guardian, Reuters, VRT news, etc.). On 17 December 2025, the court issued a ruling accepting the statement of claim for consideration and scheduled a court hearing for 16 January 2026 (see here).

On 16 January 2026, the court issued several procedural rulings. In particular, it dismissed Euroclear’s application for strike-out (formally ‘application to have the statement of claim left without consideration’), it granted Euroclear’s application to adjourn the preliminary hearing, and it granted the application of the Central Bank of the Russian Federation for the proceedings to be conducted in camera on the grounds that the case involves secreta commercii.

The next hearing is scheduled for 4 March 2026.

While the European Commission earlier dismissed the claim as ‘speculative’ and groundless, the litigation forms part of a broader pattern: since 2022, Russian courts have witnessed a steady increase in claims against Euroclear arising from sanctions-related asset freezes. By mid-January 2026, just short of 200 claims against Euroclear had been filed across Russia.

This post examines the private international law (PIL) dimension of this litigation, using the core, ‘trigger’ case of Bank Saint Petersburg v Euroclear. Its aim is to analyze how the courts grounded their reasoning to reject arguments of Euroclear that EU and Belgian law is applicable, and how it built sanctions-related case-law against Euroclear based on Russian law.

The Trigger Case: Bank “Saint-Petersburg” v. Euroclear

The Euroclear-related litigation began with case No. А40-205635/2022, filed in September 2022 before the Moscow Arbitration Court by Bank “Saint-Petersburg” PJSC.The bank sought compensation for losses it attributed to Euroclear’s blocking of funds following the imposition of EU sanctions.

In February 2023, the court of first instance granted the claim, awarding the bank USD 107,085,768.65 and EUR 488,994.50 in damages, alongside litigation costs. On appeal, the claimant withdrew the euro-denominated portion, and in May 2023, the Ninth Arbitration Court of Appeal upheld the decision for the USD portion. It also clarified that payment should be made in Russian roubles according to the exchange rate on the date of payment.

From the outset, the issue of applicable law was central. Euroclear stated that the dispute fell under EU law and Belgian law, invoking the regulatory framework governing its activities and the contractual arrangements between Euroclear and the Russian National Settlement Depository (NSD).

Consolidation of Defendants: From NSD and Euroclear to Euroclear Alone

Initially, the claim was brought jointly against Russia’s National Settlement Depository – NSD and Euroclear. From a PIL perspective, such a combination of domestic and foreign defendants could have implications for both jurisdiction and applicable law.

However, during the proceedings the claimant withdrew its claim against NSD. The court further emphasised that NSD could not be a defendant in this case because the claimant and NSD were bound by an arbitration agreement providing for dispute resolution before the Arbitration Centre at the Russian Union of Industrialists and Entrepreneurs. Consequently, the claims against NSD were left without consideration, and Euroclear remained the sole defendant.

The court made it clear that the mere involvement of a foreign party does not provide grounds to disregard an arbitration agreement. Had the claims against NSD and Euroclear been brought separately, the court noted, those would not have fallen within its jurisdiction.

PIL: First Instance

 Public Order as a Consideration

Relying on Article 1193 of the Russian Civil Code, the court noted that foreign law must yield to Russian law when the consequences of its application would have obviously been in conflict with the fundamentals of law and order (public order, ordre public) of the Russian Federation. The court stressed that when deciding whether it is necessary to apply the ordre public exception, the court should proceed not from a contradiction between the content of the foreign rule and the fundamental principles of the legal order (i.e. not from a review of the substance of foreign law), but from the unacceptability, for the forum state, of the consequences resulting from the application of the foreign law provision.

The court also stated that according to the Presidium of the Supreme Arbitration Court (informational letter No. 156 of 26 February 2013), ‘public order’ encompasses fundamental legal principles of the highest imperative authority, universality, and particular social and public significance, forming the foundation of the state’s economic, political, and legal system. Among these principles is the prohibition of actions explicitly forbidden by peremptory norms of Russian law (Art. 1192 of the Civil Code) when such actions threaten the sovereignty or security of the state.

Applying this standard, the court held that EU sanctions preventing the transfer of funds to the bank were incompatible with fundamental constitutional principles. Under Article 55(3) of the Russian Constitution, restrictions on the exercise of rights by Russian legal entities may be imposed only by federal law. Russian legislation does not compel compliance with foreign sanctions, hence, judicial enforcement of EU sanctions would contravene Russian public order.

The court stated that liability for harm in Russian law is a private-law construct, grounded in principles of fairness, proportionality, and fault. Proportionality, directly mentioned in the aforementioned informational letter No. 156 of 26 February 2013 of the Presidium of the Supreme Arbitration Court, is considered part of Russian public order.

The court further emphasised the prohibition of abuse of rights. Drawing on the Resolution of the plenum of the Russian Supreme Court of  23 June 2015, No. 25 “About application of some provisions of the Section I of part one of the Civil code of the Russian Federation by courts”, it noted that exercising a right in a manner that causes harm to others, particularly through unlawful means, constitutes abuse. Material damage, including the diminution of economic value or the need for additional expenditures, falls within this category. The court cited the ruling of the Supreme Court of the Russian Federation dated 28 November 2017, No. 309-ЭС-13269, in case No. А07-27391/2016, indicating it as a source where it is noted that the breach of the prohibition on abuse of rights constitutes violation of the principles of public order of the Russian Federation.

The court also relied on statutory and constitutional authorities concerning sanctions: the Federal Law “On Measures (Countermeasures) in Response to Unfriendly Actions of the USA and (or) other Foreign States”, which identifies foreign sanctions targeting Russia as threatening territorial integrity and economic stability, and the ruling of the Constitutional Court of the Russian Federation dated 13 February 2018 No. 8-П, where the court held that a right whose exercise depends on compliance with sanctions imposed against Russia or its economic entities by any state, outside proper international legal procedures and contrary to multilateral treaties to which Russia is a party, cannot be protected by the courts.

Non-Contractual Nature of the Claim

Euroclear argued that Belgian law should govern because of the contractual arrangements with NSD. The court rejected this, noting that the claims were non-contractual in nature, arising from harm caused by Euroclear’s actions, and therefore outside the scope of any contractual choice of law. The applicable law must be determined according to the conflict-of-law rules governing obligations arising from harm.

Lex Loci Damni and Foreseeability

Article 1219 of the Civil Code provides that obligations arising from harm are governed by the law of the place where the harmful act occurred, or, if the harm occurs elsewhere, the law of the place where the damage materialised, provided the harm was foreseeable.

The court found that the damage occurred in Russia, and Euroclear knew or ought to have known that blocking the funds would harm Russian entities. Sanctions were expressly directed at Russia, and Euroclear had been informed of the impact.

The court referred to paragraph 52 of the Plenum Resolution of the Supreme Court of the Russian Federation No. 24 dated 9 July 2019, “On the Application of Private International Law Norms by Courts of the Russian Federation”, which provides that if a claim arises from harm caused by an act or other circumstance that occurred on the territory of the Russian Federation, or if the harm materialized on the territory of the Russian Federation, the court may apply Russian law to the relations between the parties.

Accordingly, the court stated that since the consequences of the harm caused by the actions (or inaction) of Euroclear occurred on the territory of the Russian Federation, and Defendant was aware of the location where the harm would materialize, the applicable law governing these relations is the law of the Russian Federation.

Closest Connection

Finally, the court applied the subsidiary rule of closest connection (Article 1186 of the Civil Code), considering that the legal relationship is most closely connected with the Russian Federation for the following reasons:

• • Bank Saint Petersburg, as a banking organization registered in the Russian Federation, is claiming damages (actual loss) in its favour to fulfill its obligations to a wide range of parties, including both individuals and legal entities;
  • The harm caused by the unjustified actions (or omissions) of Euroclear since March 2022 is substantial, affecting not only the claimant but also specific individuals and legal entities, as well as the economy of the state;
  • The issuers of the securities for which funds were not transferred to the Bank are predominantly Russian entities;
  • The agreement between the NSD and the Bank is governed by Russian law, and NSD’s obligations were not fulfilled due to Euroclear’s actions (or omissions) that were inconsistent with Russian legislation.

These factors, the court concluded, outweighed the arguments relied upon by Euroclear.

PIL: Appellate Review

 In its May 2023 judgment, the Ninth Arbitration Court of Appeal endorsed the reasoning of the first-instance court concerning the PIL, further systematising its approach.

Emphasising Articles 247–249 of the Arbitration Procedure Code and Supreme Court Plenum Resolution No. 23 (2017), the appellate court further assessed jurisdiction and connection to Russia:

• • The bank’s main activity is in Russia, oriented toward Russian clients.
  • Key evidence resides with NRD, Russia’s central depository, subject to Russian law and supervision.
  • The securities involved were issued by Russian entities, and Euroclear’s actions had a significant economic impact domestically.
  • Euroclear maintains accounts in Russia.

The court in its judgment indicated that with regard to the present case, the arbitration court of the Russian Federation has jurisdiction to hear the Bank’s claims on the basis of the following:

• • Bank “Saint-Petersburg” PJSC, as a banking institution registered in the Russian Federation, seeks recovery of losses in its own favour for the purpose of performing its obligations towards a wide range of persons, including both individuals and legal entities.
  • The claimant’s principal business activities are carried out in the territory of the Russian Federation and are oriented towards Russian individuals and legal entities.
  • The damage caused to the Bank by the unjustified actions (or omissions) of Euroclear Bank SA/NV, commencing in March 2022, is substantial and affects not only the claimant, but also its clients and the economy of the state.
  • The main evidence confirming the need to transfer funds in favour of Bank “Saint-Petersburg” PJSC is held by the NSD on the territory of the Russian Federation. NSD, as a Russian legal entity, possesses the key evidence in the present dispute.
  • The obligations arising in connection with the Eurobonds for which funds were not transferred to the Bank involve predominantly Russian issuers.
  • The agreement between NSD and the Bank is governed by Russian law, and NSD’s obligations were not performed as a result of actions (or omissions) of Euroclear Bank SA/NV that were inconsistent with Russian legislation.
  • NSD, as the party obliged to transfer funds to the Bank, is registered in the Russian Federation, holds the status of Russia’s central securities depository, and its activities are regulated by Russian law and supervised by the Central Bank of the Russian Federation.
  • Euroclear Bank SA/NV maintains bank accounts within the territory of the Russian Federation.

The appellate court stated that the court of first instance in its consideration of the case correctly established that the law applicable to the present dispute is the law of the Russian Federation, and that the arbitration court of the Russian Federation has jurisdiction to hear the Bank’s claim against Euroclear. As  indicated in its ruling, the occurrence of damage within the territory of the Russian Federation constitutes an additional basis for the jurisdiction of the Russian arbitration court.

Overall, the appellate court’s decision did not introduce new substantive arguments but, to some extent, supported and further formalised the PIL reasoning, creating a guide for the large number of Euroclear-related claims in Russia.

Conclusion

The Bank Saint Petersburg v Euroclear litigation demonstrates the Russian courts’ interpretation and application of PIL principles in a sanctions context. Key takeaways include:

1. 1. Public order (ordre public) considerations override foreign law where enforcement would conflict with fundamental constitutional or statutory principles.
   2. Non-contractual claims arising from harm are governed by the law of the place where harm occurs, rather than contractual choice-of-law clauses.
   3. Lex loci damni and foreseeability determine applicable law when harm has consequences in another state.
   4. Closest connection serves as a subsidiary test, weighing factors such as the parties’ domicile, the location of harm, and the economic and legal context.

In Euroclear-related disputes, the Russian courts have constantly rejected arguments delivered by Euroclear to apply EU and Belgian law, establishing Russian law as the governing law for sanctions-related claims, which represents the interplay between private international law and the enforcement of cross-border sanctions.

At present, the court register shows around 190 cases across the Russian Federation against Euroclear. All of these cases were initiated after the decision in Bank Saint Petersburg v Euroclear, and in the majority of them final judgments have already been rendered (as a rule, the claims against Euroclear are upheld). The reasoning supporting the jurisdiction of the Russian courts and the application of Russian law in all such cases mirrors that adopted in this ‘trigger’ case.

Mykola.

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I have given background to Limby v Dyson when I discussed the important jurisdictional decisions. Current post deals with case management issues held by Pepperall J in Limbu & Ors v Dyson Technology Ltd & Ors [2026] EWHC 38 (KB).

The judgment is crucial for the discussion of equality of arms in supply chain due diligence claims, an issue which as the judge in current case also points out, was part of the forum non considerations at the time of the jurisdictional challenge. The judge’s considerations [8] re access to justice, costs, realism viz law firms contingency fees (and a side note on the barristers in the case, who of course act as single, self-employed risk takers viz the recoverability of their time spent) are an example of realism, empathy, concern for the rule of law and appreciation of real-life impact.

A first important issue under consideration comes down to whether the judge would order the case to first proceed with lead claimants, having to prove their working conditions etc, or rather, as defendants suggested, cut to the chase (claimants’ counsel called it ‘answering the siren song) as to Dyson’s knowledge and control of the circumstances in which claimants found themselves, with factual circumstances assumed for the purpose of the liability trial. [31] ff the judge explains while he rejects the latter (incl the difficulty of any appeal judges having to hear an appeal on the basis of assumed rather than proven facts) and he distinguishes the case management in Municipio on this point. [44] ff the claim in unjust enrichment is not going to trial now, for here the judge finds it impossible to split the issues of liability for and the assessment of the extent of any unjust enrichment (the latter requiring costly forensic evidence).

Focusing on one more element of the case-management: the request, which was granted, for ‘specific’ disclosure of a number of specific documents, even prior to what is known as ‘first disclosure’. There is an asymmetry of information between the parties as to what was reported to and known by Dyson. The judge ordered disclosure of 5 specific documents (the existence of which was revealed in related libel proceedings against Channel 4 journalists).

A judgment of much note, and another round hard fought by claimants, underscoring their need for tenacity and for support by level-headed lawyers.

Geert.

EU private international law, 4th ed. 2024, Chapter 7.

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When I reviewed the AG’s Opinion in Case C‑77/24 [Wunner], I signalled my agreement with his view on the lex societatis carve-out in Rome I, yet disagreed with his findings on locus damni for purely economic loss.

The CJEU held yesterday and does follow the AG on both points.

On the lex societatis exception, it confirms [23] its Verein für Konsumenteninformation formulate, later also confirmed in Kerr: the exception “applies exclusively to the structural aspects of companies and other bodies, corporate or unincorporated”. It then [24] revisits BMA: only in instances where directors, auditors and the like have a non-contractual obligation for reasons specific to company law, is the carve-out engaged, not if the obligation is extraneous to company law. [30] An action seeking to establish liability on the part of the directors, owing to an alleged infringement of a general prohibition on offering online games of chance without holding a licence for that purpose is, the Court holds, not covered by the carve-out because such a legal action does not concern the relationship between a company and its directors. Like the AG, the Court finds support in Rome I Articles 15(a) and (g).

[41] the Court emphasises actual manifestation of the damage, per Vereniging van Effectenbezitters. In determining that place of actual manifestation, [43] (and seeking [42] support in CJEU Pinckney‘s “the place where the alleged damage occurred is liable to vary according to the nature of the right allegedly infringed and that a finding that damage has occurred in a particular Member State is subject to the requirement that the right in respect of which infringement is alleged is protected in that Member State”), the Court very much ties the locus damni assessment to the alleged infringement which grounds the accusation effectively of the claim in tort for breach of statutory obligation: here: “the damage alleged by [claimant] actually manifested itself when he participated, from Austria, in online games of chance offered in breach of a prohibition applicable in that Member State. In those circumstances, the damage must be regarded as having occurred in Austria.”

Austria is [44] also the place where the games are held to have taken place – essentially because in the Court’s view the internet nature of the game makes it all to difficult (“In the light of the very nature of online games of chance, which does not make it easy to situate them in a specific physical location”) to come to a proper location, hence “those games took place where the player is habitually resident.”

[47] “as regards the financial loss alleged to have been sustained on the player account specially created with a view to [claimant’s] participation in online games of chance, or on [claimant’s] personal bank account from which his player account was funded, it must be noted that that loss is only an indirect consequence of the alleged damage, which cannot be taken into account for the purpose of determining the law applicable under [A4(1) Rome II].”

I find all of this quite circular and, importantly, handing claimant a great way to manipulate locus damni hence applicable law by the choice of action aka by claim formulation.

Article 4(3)’s proper law of the tort analysis is left to the referring court, with a reminder that the exception must be interpreted restrictively.

Geert.

EU Private International Law, 4th ed 2024, 4.22 ff, 4.31 ff.

[If you do use the blog for research, practice submission 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.]

There is of course one additional issue on conflict of laws that is part of the Municipio judgment (Municipio de Mariana et al v BHP Group UK Limited and BHP Group Limited [2025] EWHC 3001 (TCC); I discussed the Rome II issue here), namely the question of standing for the municipalities in the English proceedings. I discuss it in an extra post here for to simply insert it in my earlier post would render that post’s title incomplete.

This is discussed [1090] ff and it is worth inserting the alternative arguments in full:

1090. BHP’s case is that the Municipalities’ claims should be dismissed as they do not have the constitutional capacity to bring proceedings abroad. Their bringing of these claims in the Courts of England and Wales constitutes acts that are exclusive to the Federal Government as representative of the Federative Republic of Brazil under Article 21(I) of the Constitution, namely: (a) a waiver of immunity from jurisdiction (such waiver being a prerogative of national sovereignty); and/or (b) establishing a legal relationship with a foreign State.
1091. It is said that the effect of the Municipalities bringing suit in England is to subject themselves to the jurisdiction of this Court, waiving jurisdictional immunity from which they benefit as a matter of Brazilian law. This is an act on the international plane, beyond the autonomy of the Municipality and one that only the Federal Government has the constitutional capacity to carry out. Therefore, Municipalities can only bring claims abroad through or with the Federal Republic of Brazil.
1092. The Claimants’ case is that the Municipalities are local government bodies with their own separate legal personality which have administrative responsibility over defined territories within Brazil. They are thus legal persons distinct from the individuals and businesses whose interests they represent and distinct also from the Federal Republic of Brazil. The Municipalities are recognised as public entities by Article 41(III) of the Civil Code, subject to internal public law, as well as the Constitution.
1093. Under Brazilian law, Municipalities are treated as having the same capacity as a natural person so far as holding and exercising rights is concerned. In those circumstances, it is said that in the absence of express prohibition or limitation, Municipalities are in the same position as any other natural or non-natural legal person. Like any other such person they can therefore sue and be sued, both within Brazil and in courts outside Brazil as any other natural or non-natural legal person.

O’ Farrell J starts with the common ground:

1094. It is common ground that the issue of standing of a party is a matter for the lex fori, that is, the English Court, but the issue of capacity to bring proceedings of the
Municipalities, as creations of Brazilian law, is subject to Brazilian law.
1095. Further, it is common ground that the Municipalities can sue and be sued in their own name before the Brazilian Courts, including in respect of damage to their own property.
1096. The issue is whether the capacity of the Municipalities to bring proceedings for
damages is restricted to domestic proceedings in Brazil and does not extend to foreign proceedings, by reason of the Constitution.

[1097] the judge emphasises her role as holding on the issue as a matter of (proven) fact of foreign law: not as a definitive determination of Brasilian law. Defendants’ expert’s view is is that the Federal Government has exclusive jurisdiction, acting in the name of the Federative Republic of Brazil, to waive immunity from jurisdiction. [1101] the claimants’ expert’s view echoes issues of ‘civil and commercial’ and the meaning of core concepts of foreign sovereign immunity:  his view is that

the Municipalities are not prevented from filing actions outside Brazil under Brazilian law. The legal scholarship on immunity against foreign actions applies only to the so-called acts of sovereignty or acts of state, but not to acts of management. A civil claim for compensation against a foreign private agent, even when made by a public body, such as a Municipality, is not an act of sovereignty or the State, but rather an act of management. In the case of an action seeking compensation for damage caused by environmental degradation brought against private companies based abroad, relations with foreign States are not in question, nor is the participation
of international organisations.

In others words this is a ‘money’ claim, not one related to public power. The judge [1106] prefers this opinion:

As he explained, a distinction must be drawn between sovereignty, the authority of the Federal Republic to govern itself and its laws, and administrative autonomy, the authority of private and public entities to conduct their own affairs, including by means of legal actions. By filing claims in the English Courts, the Municipalities submit to the jurisdiction of this Court to try the claims but that does not extend to any issue of sovereignty. The Municipalities do not purport to exercise any sovereign authority of the Federal Republic when advancing their private law claims. They are not required to surrender any such sovereign authority and the private law claims do not involve any issues of international relations.

Consequently [1108]

there is no constitutional impediment by way of incapacity for the Municipalities to bring proceedings in this jurisdiction. It follows that there they have standing in these proceedings.

A (factual) finding of note.

Geert.

EU Private International Law, 4th ed, 2024, ia 4.82 ff.

I had promised participants of the BIICL Business and Human Rights Annual Forum Annual Conference that I would be putting up my handwritten notes for my keynote, in electronic format. Here they are. It was a great forum.

Geert.

[If you do use the blog for research, practice submission 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 Norkus’ approach in Case C-485/24 Locatrans Sarl v ES, which I reviewed here, focused on identifying a mutually agreed lex laboris and on the assistance the core DNA of the dispute, and the time that issue arose, may offer in identifying that mutual agreement.

The CJEU held last week. While it certainly may be said that the AG’s approach, in particular the reference to locus regit actum, is unorthodox and perhaps a touch convoluted, the CJEU’s approach is simply confusing as Ugljesa Grusic implies.

A reminder that the case formally concerns the Rome Convention, not the Rome Regulation however the provisions do not materially differ.

The novelty of the question in current case is the period of work to be taken into account in determining which law is applicable if the employee has worked for his or her employer in two separate stages: first, in several States and next, during the period preceding the end of the employment relationship, on a permanent basis in a single State, which parties clearly intend to be the new place of habitual performance.

The CJEU would seem to have sided with the French Government’s approach, that the most recent period of work could be taken into account in the use of the overall escape clause in Article 6, in order to determine, in the light of all of the relevant circumstances, the existence of closer connections with another country than that indicated by the other limbs of Article 6.

The CJEU as Ugljesa excellently summarises, holds that the change in habitual place of performance in its view makes the application of the ordinary test (identification of a habitual place of performance, which then leads to the lex causae) impossible; this then ordinarily triggers as a fall-back the law of the country of the engaging place of business.

However the Court then emphasises the core objective of the provisions on employment contracts: guaranteeing adequate protection for the employee, and the role of the escape clause in that respect: it must ensure that the law applied to the employment contract is the law of the country with which that contract is most closely connected (reference to CJEU Schlecker, [34]).

This then brings the last limb of Article 6(2) of the Rome Convention to the fore: where it is apparent from the circumstances as a whole that the contract of employment is more closely connected with another country, it is for the national court to disregard the connecting factors referred to in Article 6(2)(a) and (b) of the Rome Convention and to apply the law of that other country. The referring court is therefore invited seriously to consider the place where the employee has carried out his or her work on a permanent basis during the most recent period of the performance of his or her contract of employment, which place is intended to become a new habitual place of work, as the ‘proper law’ of the contract, for the Court holds, this is in line with the favor laboris objective. [61] the Court also suggests this assists with predictability however that, as Ugljesa also notes, would seem optimistic.

Like Ugljesa, I would suggest that the law of the intended new habitual place of work should apply as the objectively applicable law under Article 6(2)(a), rather than under the escape clause. This would serve party autonomy, predictability and favor laboris (seeing as the place is mutually agreed) more than the use of the escape clause, the position of which I feel is overpromoted with current judgment.

Geert.

EU Private International Law, 4th ed 2024, 3.39 ff.

Applicable law, cross-border employmentRome ConventionCJEU C‑485/24 Locatrans curia.europa.eu/juris/docume…Court does not seem to follow AG gavclaw.com/2025/09/09/l…CJEU zooms in difficulties of lex voluntatis, focuses on place of business through which employee was engagedMore soonish

— Geert Van Calster (@gavclaw.bsky.social) 2025-12-11T09:49:25.652Z

I know we all got pretty excited (if not in the least enthusiastic) by the Grand Chamber ruling in Apple last week. However there was another Private International ruling which involved President Lenaerts (I mention that because he is an authority on PrivIntLaw and my predecessor in the chair here at Leuven).

In Case C‑279/24 AY v Liechtensteinische Landesbank (Österreich) AG, the Court held that the consumer section of Rome I does not apply to a contract concluded between a consumer and a bank where the conditions set out in that provision were not met on the date on which that contract was concluded, but are subsequently met.

In the case at issue, on the date on which the contract concerned was concluded, the Austrian bank concerned was not pursuing its commercial or professional activities in the country where the consumer had his or her habitual residence, and was not directing them to that country. The conditions set out in A6(1)(a) or (b) Rome I were not met therefore. It is only later that this was the case: AY took part in an event organised in Padua (Italy) by an Italian investment company (‘the Padua event’), during which the managing director of that company presented a fund whose portfolio also included ETNs – exchange trade notes, for which AY had earlier opened an account. An employee of the bank also took part in that event in order to introduce the bank to the investors in attendance. Had AY only then opened his account, it would have been a consumer contract.

The CJEU emphasised [33] Rome I’s foreseeability pedigree, [37] legal certainty, and [34] ff party autonomy.

Note the difference with CJEU Commerzbank where, for the jurisdictional angle to consumer contracts, the emergence of an ‘international’ element post contract formation did not stand in the way of the deployment of EU PrivIntLaw.

Geert.

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.

I reviewed Sánchez-Bordona AG’s Opinion in Case C-34/24 Stichting Right to Consumer Justice v Apple here.

The CJEU held yesterday and did not follow its AG. In doing so it gave collective action under WAMCA a boost. This is not something many will object to. However in my view its judgment is fairly clearly contra legem and I do not think it is a good idea for the CJEU effectively to legislate in this way.

The Court held that Dutch foundations can consolidate their collective claim in just one court in The Netherlands, despite the absence of a clear ex ante procedural rule in Dutch civil procedure providing for same.

The foundations at issue are procedural vehicles, created to bring a class action suit in the name of both identified and unidentified victims of alleged abuse of dominant position by Apple with its fee structure for App Store.

With its judgment, the Court decided not to follow the Opinion of its Advocate General. He had suggested the Court stick to what is a more literal reading of the EU rules on jurisdiction. This Opinion implied that

unless the Dutch rules clearly provide for such consolidation for instance for all breaches of competition law (clearly sanctioned by CJEU Volvo) – which they do not (Dutch lawyers will be better placed to explain why this change has not been made in the context of WAMCA); or

unless the court in the case at issue finds that a multitude of claims brought in various Dutch court – which they had not – must be consolidated in one court on the basis of Dutch civil procedure rules,

, the Court should follow the implications of the actual wording of the EU rule at issue.

In its ruling the Court emphasised that consolidating the claims in one court will make it more efficient to perform the often complex factual and economic analysis required to judge complicated competition law cases like the one at issue. It also highlighted that Apple can hardly be surprised to be sued in one court in The Netherlands given its marketing of the App Store across The Netherlands collectively (as Giles Cuniberti notes, this specific focus on the Dutch market may mean the authority of the judgment does not stretch to cases where such national marketing focus is absent).

I get both elements. However they are de lege ferenda, not de lege lata. Article 7(2) clearly allocates territorial jurisdiction, not just national jurisdiction, to the place of individual harm which must therefore be identified. Should this be considered to go against the interest of the sound administration of justice, then the Regulation ought to be amended (which it has not, despite repeated opportunity to do so, and despite it having been considered in the specific context of collective action, without it actually having been amended).

Note that [64-65] emphasis on ‘unidentified but identifiable’ echoes the requirement of individual harm emphasised also in CJEU Mittelbayerisher Verlag:

As is apparent from the request for a preliminary ruling, under Netherlands law, a foundation or association which brings a representative action acts as an independent promoter of the interests of persons who, although not referred to individually, have similar interests. Those applicants thus exercise their own right, namely the right to represent and defend the collective interests of a ‘strictly defined group’ which brings together unidentified but identifiable persons, namely users, whether consumers or professionals, who have purchased apps created by developers on the App Store NL to which those persons had access by means of their Apple ID associated with the Netherlands and whose domicile or registered office is likely, for the majority of those users, to be located throughout the territory of that State.

That group must be determined in a sufficiently precise manner to enable interested persons to express their position on the outcome of the proceedings concerned and, where applicable, to receive compensation. In that regard, the Netherlands Government stated, at the hearing, that the outcome of a representative action for the defence of the collective interests of unidentified but identifiable persons is binding on the persons established in the Netherlands who belong to that group and who have not expressed their intention to refrain from participating in those proceedings.

[66] the CJEU notes

a court cannot be required, for the purpose of determining its territorial jurisdiction to hear such an action, on the basis of the place where the damage occurred, within the meaning of Article 7(2) of Regulation No 1215/2012, to identify, for each alleged victim taken individually, the precise place where the damage that may have been suffered occurred, since those victims are not identified individually at the time when that court ascertains whether it has jurisdiction; nor can it be required to identify one or some of those victims.

With respect, that puts the horse before the cart. If such determination cannot be done, then one may simply have to conclude that there cannot be locus damni jurisdiction under Article 7(2), instead turning to locus delicti commissi. However in view of its answer to the locus damni issue, the Court did not reply to the question on the location of the harmful event /locus delicti commissi.

This is a question which is of equally general importance to the effective implementation of competition law and as I discuss in my previous post, could do with clarification. That the Court did not entertain it is an important missed opportunity.

Further, in various places in the judgment the CJEU pushes the ‘sound administration of justice’ as a foundational principle of Brussels Ia. As I argue here, there is in fact little support in the Regulation de lege lata that this principle is core to the Regulation’s jurisdictional matrix. The CJEU clearly pushes it as one.

Overall there will be few who will have sympathy for an economic player the size of Apple who now can more realistically be sued in one court rather than claimants having to first bring the claim across the whole of The Netherlands. In that respect the judgment echoes an earlier one brought against Volkswagen in the context of the Dieselgate scandal. In that judgment, the Court allowed individual, second hand  purchasers of a defective car to sue the manufacturer effectively in their individual place of domicile. In that case therefore Volkswagen was inconveniently forced to defend the claim in a multitude of jurisdictions.

The inconvenience for Apple in current case is that it is being sued in one place by a more sophisticated claimant. However the danger in my opinion lies in the Court effectively applying the law with the perceived unpopularity or sophistication of one of the parties in mind. If current EU procedural law turns out to be ineffective in holding big business to account, then that law must be changed by the legislator. I do not think the Court must do it in the legislator’s stead, in cases where the law’s express provisions are clear.

Geert.

[If you do use the blog for research, practice submission 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.]

I have of course reported on the lengthy jurisdictional battles (in which for the sake of clarity, I was instructed) surrounding the litigation, in England, following the collapse of the Fundão Dam in Southeast Brazil on 5 November 2015, chiefly here.

In Municipio de Mariana et al v BHP Group UK Limited and BHP Group Limited [2025] EWHC 3001 (TCC), Justice O’Farrell held last Friday in what by any measure is a groundbreaking business and human rights case, testifying in the process to the ability of the courts in England to deal with claims of this absolute magnitude (one will remember that the alleged impossibility for the English courts to try cases of this enormity was one of the arguments for Turner J, later overturned, to reject jurisdiction for the English courts).

[76] During case management hearings, it was agreed that the Court should determine key liability issues and significant defence issues at a first stage trial before considering the entitlement and quantum of any individual or group claims. Current judgment is the judgment on those key issues.

There has been a lot of primary analysis of the judgment over the weekend, and Jonathan McDonagh has complete yet concise overview of findings here.

This post, true to its host’s form, focuses on one important conflict of laws issue in the judgment.

The Rome II Regulation includes an “evidence and procedure carve-out”. On the other hand Article 15 Rome II includes within the scope of the applicable law identified by the Regulation (the ‘lex causae’), a number of subject-matter which national laws frequently consider to be part of that very procedural law.

Article 15’s specification of what is covered by the lex causae identified by Rome II includes “rules of prescription and limitation”.

The tension between the procedural carve-out and Article 15’s reference to ‘rules of prescription and limitation” makes an appearance in current claim by way of the precise way in which proceedings have been commenced.

The Claimants’ case [816] is that the Brazilian rules of prescription, which include Article 202 (I) of the Civil Code, provide that service of the claim form is the key procedural step required to stop time running. However, what amounts to proper service will be a question of procedural law.

[817] BHP’s case is that A15 Rome II sets out a non-exhaustive number of matters which must be determined in accordance with the law applicable to non-contractual obligations, which cannot constitute matters of procedure for the purpose of Article 1(3). [820] They argue Brazilian, not English, law applies to the question of whether the claim form contained sufficient information for the purposes of limitation.

In particular, defendants argue that the claim forms as issued by claimants, were not effective for proceedings to have ‘commenced’ as a matter of Brazilian law. In their view, the relevant section of the Brazilian Code of Civil Procedure (‘BCCP’), Article 319 BCCP, applies with respect to specification of the “factual and legal grounds of the claim” (Article 319(iii)), “the specified demand for relief” (Article 319(iv)), and “the value of the claim” (Article 319(v)). Defendants argue that this is required to enable the Defendants to provide a full answer and defence.

It is my view that Civil Procedure Rules – CPR on the required content of claim forms to effect service, must follow lex fori (or more precisely: must follow residual conflict of laws rules for procedural issues, which tends to lead to lex fori), even if the enquiry into the consequences of the claim form subsequently is relevant for limitation purposes.

The judge [821] holds

In my judgment, a distinction must be drawn between the substantive rules of prescription, which it is agreed are subject to Brazilian law by reason of Article 15(h), and the procedural rules for effecting valid issue and service of a claim in this jurisdiction, which should be characterised as procedural and therefore fall to be governed by English law, the Civil Procedure Rules 1998 (“the CPR”). There may be cases in which it is unclear whether a specified requirement falls into the category of substantive law or procedural/evidential law. This is not such a case.

and [825]

Even if the Brazilian rules on commencement of proceedings applied, there is no real dispute between the Brazilian law experts that, it is likely that the claim forms would be effective to stop time running.

In conclusion [830]

For the above reasons, regardless of whether English law or Brazilian law applies to the requirements for issue and service of the claim forms, they would be considered to be valid to stop time running for prescription on the date of issue.

It is a neat conflicts nugget in a judgment otherwise largely discussing liability under Brazilian law as the lex causae. BHP On Friday immediately announced in a statement to investors (by whom they are nota bene also being sued) that they intend to appeal.

Geert.

EU Private International Law, 4th ed, 2024, ia 4.82 ff.

[If you do use the blog for research, practice submission 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.]

I am grateful to Dr Elias Van Gool, postdoc in our department, for his analysis of ASLB we.are.nature.Brussels et al v Région de Bruxelles-Capitale.

Of note is that both Elias and I struggle to find the right terminology for the Dutch ‘verharding’: ie any method by which soil is made impenetrable, typically by concreting it over in the course of construction works. Elias has used the term ‘soil sealing’, any suggestions for improvement will be happily received.

WeAreNature.Brussels: Climate litigation leading to a construction and soil sealing moratorium protecting Brussels’ remaining greenfields

This guest post was authored by Dr Elias Van Gool, FWO Post-Doctoral Researcher in environmental law at KU Leuven.

In the global surge of strategic litigation relating to climate change, few decisions at the national level can today still be considered truly novel. The 29 October judgement by the French-speaking Brussels Court of First Instance, however, is remarkable and worth signaling to readers of this blog.

Claimants – NGOs WeAreNature.Brussels, Bruxelles Nature and 1,330 local residents – sued the Brussels Capital Region (hereafter ‘the Region’), alleging that it was liable for breaching its general duty of care, interpreted in light of established climate science and the Region’s climate change mitigation and adaptation responsibilities. In essence, the claimants argued that continued net increases in soil sealing, which threaten Brussels’ remaining greenfields and other  open spaces, prevent the Region from achieving its own, European and international legal obligations relating to climate change. Given the Region’s knowledge of this issue, its continued failure to adjust its spatial planning to reverse this trend, and the resulting harm Brussels residents will suffer, the claimants argue that the government’s conduct is tortious.

After establishing that all claimants have the necessary standing, the court agrees with them on the merits and rules that the Region’s conduct – in particular its spatial planning policy – indeed violates its duty of care in relation to climate mitigation and adaptation. In its reasoning, the court first refers to the 2023 Klimaatzaak appeal judgement, which had already held that the Brussels Region’s inadequate mitigation efforts breach the general duty of care as well as Articles 2 and 8 ECHR. The court then finds that the Region’s lack of a sufficient accounting of greenhouse gas emissions and removals from land-based carbon sinks on its territory, violates European law, in particular the carbon accounting and inventory requirements under LULUCF Regulation 2018/841/EU and Governance Regulation 2018/1999/EU. Finally, the court observes that the Region’s remaining open land and unsealed surfaces continue to disappear and that this is made possible by the Region’s current spatial planning, which the court indeed considers as obsolete for successful climate mitigation and adaptation.

The decision is notable for how it recognizes that both climate mitigation and adaptation depend on adequate spatial planning to preserve and strengthen nature-based solutions. The Region’s diminishing green areas do serve as carbon sinks, which to a limited extent help to abate global climate change. For residents, land use is of course even more directly important for adaptation purposes, where the causal link between the government’s conduct and resulting harm is undeniably much stronger. While the decision focuses on flood risks, local residents are also vulnerable to heat stress and to a lesser extent droughts. These are all risks green infrastructure and unsealed surface areas help to mitigate, especially in an urban environment.

The most remarkable aspect of this decision is of course the injunction: a judicial moratorium on further construction and soil-sealing activities. Comparative overviews suggest that this is truly a novelty in global climate litigation.

Nevertheless, it is worth emphasizing that this injunction is limited in several respects. First, it only applies to non-built-up areas of more than 0.5 hectares. Second, the moratorium is temporary, expiring either on 31 December 2026 or earlier if the region adopts a new Regional Spatial Plan (PRAS). Third, the court does not itself impose the moratorium but rather ‘orders the Region to take the necessary measures’ to implement it. As my colleagues De Clercq and Dethier point out, this indirect formulation can be explained by reference to both the separation of powers and the legal protection of property rights. Finally, the claimants have neither sought nor obtained a penalty payment, which could otherwise have been used to compel the Region to implement the moratorium.

To provide additional context, the Brussels Region currently lacks a government with no solution in sight, which is a situation that can impact the injunction’s implementation. Furthermore, the Region is facing a serious housing crisis and a dismal budget deficit. The latter is crucial, since a definitive change in spatial planning prohibiting construction or soil sealing in areas where this was previously allowed, will entitle affected landowners to compensation for planning damage. Conversely, the court’s injunction will not be suspended if the Region were to appeal (which in Belgium it can do as of right). It is therefore my expectation that the actual implementation of the injunction will, at best, remain limited to the rejection of individual permit requests for soil sealing and construction activities on the affected land areas. The claimants may, of course, return to court to seek penalty payments, should the Region fail to comply with the injunction. They may furthermore seek an extension of the moratorium beyond the end of 2026.

Notwithstanding these local contextual caveats, the court’s injunction stands and, from a comparative climate litigation perspective, can be regarded as breaking new ground [pun intended]. In this respect, the decision may ultimately prove to be at least as influential internationally as it is on the ground in Brussels itself.

Elias.

Background to Emiliou AG’s Opinion just a few weeks back, in Case C‑198/24 TQ v Mr Green Limited is Malta’s Bill 55, on which more here. As I noted at the time the Opinion came out, the AG takes a nuanced view on the circumstances for a player asserting a claim for restitution against a Maltese gambling company, to secure its future enforcement pursuant to a European Account Preservation Order under Regulation 655/2014. This provisional measure targets funds allegedly held by the company in bank accounts across multiple Member States.

As the AG puts it (7)

the referring court seeks clarification of one of the conditions for issuing a Preservation Order (laid down in Article 7 of the EAPO Regulation), namely the requirement for the claimant to show the ‘urgent need’ for such a measure (a condition commonly referred to as ‘periculum in mora’ that the Court has, so far, never explored). The referring court wonders about the kind of evidence that a creditor, requesting such a measure, must adduce in that respect. Among other issues, the referring court requests clarification as to whether the requisites for granting a Preservation Order must be confined exclusively to evidentiary elements demonstrating the debtor’s subjective intent to frustrate the enforcement of the claim – such as acts of dissipation, concealment, or disposal of assets – or whether objective factors, including interventions by national legislature as exemplified in the present case, may also be taken into account in that evaluation.

In other words the case is one of many (see also my review of the AG’s Opinion in Wunner] attempting to carve a chink in Bill 55’s armour.

(21) ff the AG first deals with an interesting issue of the combined nature of the CJEU preliminary reference procedure (namely that all parties to the procedure be informed of its existence), and the required (for the element of surprise) ex parte character of the APO. He suggests national courts should de lege lata wait with the reference until after an order has been issued, preferably requiring the CJEU to use the urgent (‘PPU’) procedure to offset the disadvantage (their accounts being frozen for a long time, awaiting CJEU judgment).

(47) ff the AG then, seeking support in both travaux and statutory language, suggests a narrow reading of the periculum in morta requirement:  one referring to only the risk of a (recalcitrant) debtor taking measures to evade payment, and not also any other ‘real’ threats for the recovery of the claim, such as the risk of a (benevolent) debtor becoming insolvent before enforcement due to poor or deteriorating financial circumstances in the normal course of business or to the fact that the debtor has multiple creditors to satisfy.

(56) comes a crucial issue: what sort of evidence does the creditor have to adduce? In the AG’s view

the creditor cannot be required to furnish full proof that the debtor intends to evade payment or that he or she is currently attempting to do so. Such a requirement would, in practice, often be impossible to meet and significantly undermine the usefulness of the EAPO Regulation. On the other hand, to avoid a Preservation Order being granted against a debtor who has no intention of evading payment, the creditor’s application cannot rest on mere conjecture or general assertions either. In my view, the ‘balanced’ approach is to require the creditor to adduce concrete indications giving rise to a reasonable probability that, if the Order is not issued, the debtor may have dissipated, concealed or destroyed his or her assets or disposed of them at an undervalue by the time enforcement measures may be taken.

(57) nationals courts are required to make, on a case-by-case basis, an ‘overall assessment’ of all the circumstances relied upon by creditors in that respect. Bill55 is included in that assessment, seeing as (63) it means for the time being (the legality of Bill55 under Brussels Ia being investigated by the EC, and potentially the subject of other proceedings, too) no enforcement measures may be taken against the debtor in Malta. The assets it holds in Malta (which, with respect to gambling companies established and operating from that Member State, probably means most of them) are effectively ‘concealed’ from the creditor.

However, Bill55 is not enough:  (65):

it cannot reasonably be assumed, in an abstract manner, that each and every Maltese gambling company will take advantage of the opportunity afforded by Article 56A of the Maltese Gaming Act and ‘conceal’ all its assets in Malta to evade payment of players’ claims for restitution – such as the one held by TQ. In my view, this depends on an ‘overall assessment’, on a case-by-case basis, of other elements indicating a reasonable probability that, if the Preservation Order is not issued, the company concerned may do so (which would, in turn, justify ‘freezing’ the potential funds that that company holds in other Member States to counter that risk).

This is a balanced opinion which gets the APO requirements right imo.

Geert.

[If you do use the blog for research, practice submission 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.]

Operafund Eco-Invest Sicav Plc & Anor v Spain [2025] EWHC 2874 (Comm)  is a truly exciting judgment for many reasons, most of all Pelling J’s entirely opposite view on the assignability of ICSID, ECT awards as compared to Stewart J in the Federal Court of Australia.

The latter, in Blasket Renewable Investments LLC v Kingdom of Spain [2025] FCA 1028, reviewed here by Claudia Wortmann, held [287] ff that neither under public international law (the ICSID Convention and the Energy Charter Treaty): [304] ff nor under domestic Australian law, there is a bar to the principle of assignment of ICSID and indeed ECT awards.

In current English case the claim is one for substitution as claimants, of Opera Fund Eco Invest Sicav Plc and Schwab Holding AG, by Blasket Renewable Investments LLC. The claim failed.

The judge first of all held that Spain is not estopped from making assignment objection in the English proceedings. Before a foreign judgment can give rise to an estoppel, the judgment must be capable of being registered in E&W and that is not currently the position in relation to the FCA proceedings: the order is not yet final under Australian law and Spain has not submitted to the Australian proceedings. The judgment in the FCA proceedings is not final or binding therefore which in and of itself rules out issue estoppel. An additional argument by Spain that there can be no issue estoppel on a point of law was correctly dismissed with reference [29] ia to SKAT v MCML 2025] EWCA Civ 371.

Next however the judge here diverges entirely from the approach in Australia on assignment. Stewart J at the FCA held that there is no basis in public international law to read into the ICSID Convention a prohibition on assignment, and neither is there in in Australian law. [His findings on public international law essentially mean that the notoriously dualist approach of the Australian courts is in fact of little relevance to the judgment].

I am inclined to agree, including with the arguments in his judgment concerning the object and purpose of the Convention. Stewart J [309] ff and Pelling J [42] ff come ia to a different conclusion on the meaning of ‘party’ in A 54(2) ICSID.

I understand Hanno Wehland’s argument, cited in the English judgment, that investment law is a particularly sensitive area closely linked to issues of sovereignty. I also appreciate that this makes assignment of the right to bring a claim as an investor (transfer of standing as it were) particularly problematic.

Yet that is in my view radically different at the enforcement stage where the award effectively has become a money judgment.

Permission to appeal in the English case would seem guaranteed, and in the Australian case it is one as of right (which Spain is yet to effect but has said it will). Upon appeal both judgments might be reversed, either still leading to an opposite approach in both courts or to alignment in either direction.

A judgment of most high relevance.

Geert.

High Court: ICSID, ECT awards are unassignable Exciting issues viz issue estoppel following foreign judgment (Spain not having submitted in the AUS proceedings) & treaty interpetation, customary international lawOperafund v Spain [2025] EWHC 2874 (Comm)www.bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-11-11T22:19:41.389Z

When I reported Airgas USA v Universal Africa Lines ECLI:NL:HR:2025:1665 on BlueSky last Saturday,  it led to a rather wonderful reply which I am now definitely including in my conflict of laws slides.

A quick note on the judgment (Ekaterina Pannebakker meanwhile also looks at the background here) which for its Rome I discussion is fairly uncontroversial imo.

The relevant clause in the bill of lading (transport of dangerous goods by sea) reads [2.1 of the judgment]

The law of The Netherlands, in which the Hague-Visby Rules are incorporated, shall apply. Nevertheless if the law of any other country would be compulsorily applicable, the Hague-Visby Rules as laid down in the Treaty of Brussels of 25th August 1924 and amended in the Protocol of Brussels of 23rd February 1968 shall apply, save where the Hamburg Rules of the UN Convention of the Carriage of Goods by Sea of 1978 would apply compulsorily, in which case the Hamburg Rules shall apply. If any stipulation, exception and condition of these conditions would be found inconsistent with The Hague-Visby Rules or Hamburg Rules, or any compulsory law, only such stipulation, exception and condition or part thereof, as the case may be, shall be invalid. In case of carriage by sea from or to a port of the USA, this Bill of Lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved 16th April 1936, which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. The provisions stated in said Act shall, except as may be otherwise specifically provided herein, govern before the goods are loaded on and after they are discharged from the ship and throughout the entire time the goods are in custody of the carrier. The carrier shall not be liable in any capacity whatsoever for any delay, non-delivery or mis-delivery, or loss of or damage to the goods occurring while the goods are not in the actual custody of the carrier.

Choice of court in the bill of lading is for the Netherlands. For choice of law, the Bill employs dépeçage: Dutch law was picked as the lex voluntatis (the law freely chosen by the parties), with one carve-out: for goods carried by sea from or to a port in the United States, the 1936 Carriage of Goods by Sea Act of the United States (COGSA) was chosen to apply. With COGSA the US implemented the 1924 Hague Rules. I understand that COGSA is considered lois de police in the US, for any goods carried by sea from or to a US port.

The appealing party argued [3.1.1] that because COGSA is only part of the law of a State and not all of it, the dépeçage or carve-out is invalid.

The Supreme Court suffices with holding [3.1.3] very sec that under Rome I parties may select parts only of a given State law to apply dépeçage-style. In my view that is clearly correct (and with Rob Rooman I expand on choice of law per Article 3 Rome I in a forthcoming chapter for Pietro Franzina’s Edward Elgar’s commentary on Rome I).

The dépeçage at issue is not redundant, despite parties’ clearly being aware that COGSA is lois de police (overriding mandatory law) in the US. With the clause the application of COGSA is extended even when, such as here, not a US but a Dutch court hears the case. 

The remainder of the (succinct) judgment deals with  issues of ius (alienum) novit curia under Dutch CPR.

Dépeçage does not often reach the courts and for that reason it is worthwhile reporting on it. 

Geert.

EU Private International Law, 4th ed. 2024, 3.37