Conflictoflaws

As was mentioned before on this blog, increasing the participation of African states in the HCCH appears to be the most promising avenue to strengthen judicial cooperation on the African continent in the context of intracontinental, interregional as well as global judicial integration. Following several unsuccessful attempts to establish a physical presence on the African continent,[1] the HCCH Council on General Affairs and Policy (CGAP) has now warmly welcomed the Kingdom of Morocco’s proposal to host and, perhaps most importantly, entirely fund a HCCH Regional Office for Africa (ROAF) in Rabat.[2] While the capital of multilingual Morocco, at the crossroads of North Africa with both Europe and the Arab world, seems to be an ideal location for such an endeavor, the proposal does not (yet?) appear to also include the Arabian Peninsula. However, as the Moroccan Ministry of Justice is explicitly seeking to play an active role in the framework of the League of Arab States (LAS) as well,[3] it is not unlikely that the ROAF will follow the example of the Regional Office for Latin America and the Caribbean (ROLAC) in Buenos Aires and the Regional Office for Asia and the Pacific (ROAP) in Hong Kong and cover a broader regional spectrum.

The excerpt from the HCCH CGAP 2025 Conclusions and Decisions (C&D) reads as follows:

A. Proposal for the Establishment of a Regional Office for Africa

83 CGAP warmly welcomed the proposal of the Kingdom of Morocco to host a Regional Office for Africa (ROAF) and decided that the office may be opened in accordance with the 2020 Rules for the Establishment of Regional Offices (2020 Rules). The Regional Office, which will be located in Rabat, shall operate continuously for a period of five years. CGAP will conduct a Performance Review, in accordance with Rules 6 to8 of the 2020 Rules.

84 CGAP noted with satisfaction, and thanks, the Kingdom of Morocco’s commitment to fund the entire operation of the Regional Office. CGAP also reaffirmed that the Representative shall report exclusively to the Secretary General of the HCCH. The Government of the Kingdom of Morocco and the Secretary General will finalise the Host Seat Agreement in light of the comments made by Members at CGAP 2025. The final version of the Agreement shall be shared with Members for information.

The full HCCH CGAP 2025 C&D are now available on the HCCH Website (here).

[1] See HCCH Prel. Doc. No. 6 of 2015 – Africa Strategy, paras 7 and 10.

[2] HCCH CGAP 2025 C&D, paras. 83 et seq.

[3] Press Release of the Kingdom of Morocco’s Ministry of Justice of March 2025.

The Japanese Yearbook of International Law  (JYIL) is a leading reference publication that provides in-depth analysis and commentary on developments in international law from a Japanese perspective.

Published by the International Law Association of Japan since 1957 (originally as the Annual Yearbook of Private International Law until 2007), the JYIL covers a broad spectrum of topics, from public and private international law to comparative law, bringing together insights from top scholars and legal experts in Japan and beyond.

Each issue dives into key legal cases, legislative updates, and emerging trends, making it a must-read for researchers, academics, and professionals looking to stay in the loop on Japan’s legal landscape.

On that note, the latest volume of the JYIL (Vol. 67, 2024) has recently been released. Readers of this blog may find particular interested in selected articles, case notes, books review and English translations of court decisions related to private international law.

LEGAL ANALYSIS ON SUCCESSION SUBSTITUTES

(Author’s note: This Volume’s PIL Special Issue)

Dai Yokomizo

Introductory Note (p. 162)

OSHIMA Lisa

The Potential and Limitations of Contracts That Function as Succession Substitutes (p. 164)

Dai Yokomizo

Succession Substitutes and Japanese Conflict of Laws: Including the Possibility of Introducing Limited Professio Juris to Japanese Choice-of-Law Rule Relating to Succession (p. 180)

Takami Hayashi

Conflict-of-Law Issues Regarding Succession Substitutes with a Focus on Trusts (p. 195)

Charlotte Wendland

The Law Applicable to Succession Substitutes: European Perspective (p. 214)

Takeshi Fujitani

Succession Substitutes and Taxation – An Analysis from the Perspective of Party Autonomy and Tax Neutrality – (p. 253)

CASES AND ISSUES IN JAPANESE PRIVATE INTERNATIONAL LAW

(Author’s note: Case Notes)

Yusuke Tanemura

Breach of the Arbitrator’s Obligation of Disclosure in Article 18(4) of the Arbitration Act (p. 446)

Naohiro Kitasaka

Application Mutatis Mutandis of Art. 117(1) of the Child Abduction Convention Implementation Act to a Return Agreement in an In-Court Conciliation (p. 460)

BOOK REVIEWS

(Author’s note: Selection only)

Corporate Environmental Responsibility in Investor-State Dispute Settlement: The Unexhausted Potential of Current Mechanisms, by Tomoko Ishikawa. Cambridge and New York: Cambridge University Press, 2023. Pp. xxxix, 302.

Reviewed by NISUGI Kento (p. 489)

Chugoku ni okeru Kokusaitorihikifunso Kaiketsuho [International Commercial Dispute Resolution Law in China], by Yukio Kajita. Tokyo: Nihonhyoronsha, 2022. Pp. 344

Reviewed by Xi Feng (p. 506)

Kokusaidairishokeiyakuho no Kenkyu [International Aspects of the Law of Commercial Agency], by KIM Mihwa. Tokyo: Shinzansha, 2022. Pp. xii, 382

Reviewed by Masayo Kataoka (p. 516)

The International Law of Sovereign Debt Dispute Settlement, By Kei Nakajima. Cambridge: Cambridge University Press, 2022. Pp. xxx, 339

Reviewed by Yuka Fukunaga (p. 522)

Ko no Hikiwatashi-Tetsuzuki no Riron to Jitsumu [Theory and Practice of the Procedure for Ha-nding-Over a Child in Custody Disputes], edited by Kazuhiko Yamamoto. Tokyo: Yuhikaku, 2022. Pp. x, 373

Reviewed by Hajime Sakai (p. 536)

Kokusaihochitsujo to Gurobaru Keizai [International Legal Order and Global Economy], edited by Masaharu Yanagihara, Koichi Morikawa, Atsuko Kanehara, and Taro Hamada. Tokyo: Shinzansha, 2021. Pp. xvi, 614

Reviewed by Satoru Taira (p. 541)

JUDICIAL DECISIONS IN JAPAN

II. Private International Law

(Author’s note: Case Law Translation)

Osaka High Court; Adjudication, May 26, 2021 (p. 581)

International Child Abduction – Habitual Residence – Infant

Tokyo High Court, Judgment, January 25, 2023 (p. 584)

Applicable Law to Vicarious Liability – Traffic Accidents of an Employee on Overseas Business-Trips – Escape Clause

Tokyo High Court, Judgment, October 30, 2023 (p. 589)

State Immunity – Un recognized States – jurisdiction – Place of Tort – Continuous Tort

Tokyo District Court, Judgment, May 9, 2022 (p. 594)

Validity of Agreements on jurisdiction – Sea Carriage Contracts – Surrender Bill of Lading (B/L)

Tokyo District Court, Judgment, March 27, 2023 (p. 597)

Applicable Law – Labor Contracts – Mandatory Provisions – Place with Which the Labor Contract Is Most Closely Connected – Place of Business at Which the Worker Was Employed – International Airline Cabin Crew

Yokohama Family Court, Judgment, March 30, 2021 (p. 602)

Recognition and Enforcement of Foreign judgments on Child Custody

• The full table of contents will be made available soon on the JYIL’s website.
• More information about the Yearbook and the content of its previous volumes can be found here.
• The full contents of Vols. 1-65 (1957-2022) are available on HeinOnline.

The OSAKA UNIVERSITY LAW REVIEW (OULR) is a prestigious international academic journal on law and politics with a rich history. Published annually by the Graduate School of Law and Politics at Osaka University since 1952, the OULR offers a valuable platform for discussing and sharing information on Japanese law and politics, all presented in English and other foreign languages including French and German from a comparative law perspective.

The OULR’s ultimate goal is to foster debate and facilitate the exchange of ideas between Japanese and international scholars, while promoting and disseminating original research in the fields of Japanese law and politics and other related areas.

That said, the latest volume (No. 72) features some papers that might be of interest to the readers of this blog, as well as researchers and practitioners of private international law. These papers highlight important legal developments in China, particularly in the areas of international civil procedure and sovereign immunity.

Hongman QIN, Yongping XIAO, and Xiaoke LUO

New Developments in Chinese International Civil Procedure Law: A Perspective from the Fourth Restatement of the Foreign Relations Law of the United States

Asbtract:

This paper explores and compares the 2023 amendments to the Civil Procedure Law of the People’s Republic of China with the corresponding rules in the Fourth Restatement of the Foreign Relations Law of the United States. It finds that China’s new rules on international civil jurisdiction, the doctrine of forum non conveniens, service and evidence-taking abroad, and the structured mechanisms for recognizing and enforcing foreign judgments are clearer and more detailed for respecting other countries’ sovereignty and facilitating the participation of Chinese and foreign parties in litigation before Chinese courts. These updates reflect China’s efforts to modernize its legal framework, enhance judicial efficiency, align with international norms, promote cross-border legal cooperation, and ensure the protection of national interests while facilitating cross-border legal interactions.

Zhengxin HUO

A Landmark Change from Absolute to Restrictive Immunity: A Commentary on Foreign Sovereign Immunity Law of the People’s Republic of China

Abstract:

On 1 September 2023, the Chinese national legislature adopted the ‘Law of the People’s Republic of China on Foreign State Immunity’. Comprising 23 articles, the Law represents a landmark change in China’s foreign state immunity doctrine from absolute to restrictive immunity. The Law deals with a foreign state’s immunity and property from civil lawsuits in Chinese courts and judicial enforcement in the People’s Republic of China, representing a new chapter for foreign states in Chinese courts. The adoption of the restrictive immunity doctrine significantly increases the scope of proceedings to be pursued against foreign states with respect to their commercial transactions and enforcement actions to be implemented against foreign states’ commercial assets within China. Parties entering commercial transactions with foreign states will benefit from this law in the event that a dispute arises, and thus, enforcing their rights against a state in Chinese courts becomes necessary.

These papers are available online for free—just click and save them to your preferred device!

You can find all past issues of the OULR in the Osaka University Journal Repository. [here].

I personally had  the opportunity to publish an article on the recognition and enforcement of foreign judgments in Japan in the OULR in the past.

The OULR also welcomes submissions in foreign languages, including French or German. Those who are interested in having their research published in the OULR, please refer to our Guide for Authors [available here]. As a tradition, the submission deadline for manuscripts is the first Tuesday of the first week of November. All details about submissions can be found in the Guide for Authors.

For those able to read Portuguese, 3 new books of great interest have been published in the last months.

In January 2025, Professor Luís de Lima Pinheiro published a new, 4th edition of Volume I of the treatise on Private International Law. In more than 600 pages, the book gives an introduction to Conflict of Laws and deals with the General Part of this field. Along with the in-depth analysis of all those subjects, a comprehensive list of legal literature can be found at the beginning of each Chapter.

In November 2024, Professor Dário Moura Vicente published the 5th volume of his PIL “Essays” collection. It gathers 22 scholarly contributions of the author divided into five categories, namely general issues of Private International Law, jurisdiction and recognition of foreign judgments in the EU, international unification of Private Law, the information society and its international regulation, and international arbitration.

And in October 2024, Professor Elsa Dias Oliveira published a book on Conflict of Laws in the EU. It deals with the «general part» issues that for decades have been puzzling many European private international lawyers, due to the fact that for some of them, such as renvoi or ordre public, we may find explicit rules in many PIL regulations, while for others, such as characterization or the application of foreign law, that is not the case.

Lauren Clayton-Helm and Ana Speed (both Northumbria University) are hosting a Modern Law Review funded conference at Northumbria University Law school on the 24th April entitled ‘Gender-based violence across borders: challenges and opportunities to establishing routes to safety in a migratory world’.

Further information can be found on the poster.

There will be space for up to 40 attendees.

Registration is mandatory under this link.

The Faculty of Law of the University of Bremen is recruiting a doctoral researcher in Private International Law, Civil Law and Legal Theory (‘wissenschaftlicher Mitarbeiter’ m/w/d; salary group 13 TV-L), part time 50 per cent, starting in 2025, for a duration of 36 months.

The researcher will provide scientific services in teaching to the extent of 2 SWS, and will be expected to work towards a PhD-thesis (doctor iuris) under the supervision of Prof. Dr. Gralf-Peter Calliess, in the research focus of the professorship, namely, private international law, civil procedure, arbitration, antitrust law and legal theory.

Candidates shall hold a first state examination in law (Staatsprüfung) or comparable academic university degree (graduation among the top 20 per cent of the year). A very good command of the German language is required, while a good command of English and/or other foreign language skills is an additional asset.

Deadline for applications with a letter of motivation, CV and certificates: 25th of March of 2025. For further information, please the legally binding call for applications (in German) to be found here or contact Margrit Knipper: knipper@uni-bremen.de.

A new paper by Michael Green, A Plea for Private International Law (Conflict of Laws), was recently published as an Essay in the Notre Dame Law Review Reflection. Michael argues that although private international law is increasingly important in our interconnected world, it has fallen out of favor at top U.S. law schools. To quote from the Essay:

Private international law has not lost its jurisprudential import. And ease of travel, communication, and trade have only increased in the last century. But in American law schools (although not abroad), private international law has started dropping out of the curriculum, with the trend accelerating in the last five years or so. We have gone through US News and World Report’s fifty top-ranked law schools and, after careful review, it appears that twelve have not offered a course on private international law (or its equivalent) in the last four academic years: Arizona State University, Boston University, Brigham Young University, Fordham University, University of Georgia, University of Minnesota, The Ohio State University, Pepperdine University, Stanford University, University of Southern California, Vanderbilt University, and University of Washington. And even where the course is taught, in some law schools—such as Duke, New York University, and Yale—it is by visitors, adjuncts, or emerita. It is no longer a valued subject in faculty hiring.

I could not agree more. Nor am I alone. Although Michael did the bulk of the research and writing for the Essay, he shared credit with a number of scholars who endorse the arguments set forth therein. This list of credited co-authors includes:

Lea Brilmayer (Yale Law School)
John Coyle (University of North Carolina School of Law)
William S. Dodge (George Washington University Law School)
Scott Dodson (UC Law San Francisco)
Peter Hay (Emory School of Law)
Luke Meier (Baylor Law School)
Jeffrey Pojanowski (Notre Dame Law School)
Kermit Roosevelt III (University of Pennsylvania Carey Law School)
Joseph William Singer (Harvard Law School)
Symeon C. Symeonides (Willamette University College of Law)
Carlos M. Vázquez (Georgetown University Law Center)
Christopher A. Whytock (UC Irvine School of Law)
Patrick Woolley (University of Texas School of Law).

In addition to his empirical findings about the declining role of Conflict of Laws in the U.S. law school curricula, Michael seeks to explain precisely why the class matters so much and why it has fallen out of favor. He argues convincingly that part of the decline may be attributed to poor branding:

We suspect that part of the problem is that many American law professors and law school administrators are unaware that conflict of laws is private international law. One of us is an editor of a volume on the philosophical foundations of private international law, and in conversation several law professor friends (we won’t name names) told him that they weren’t aware that he worked on private international law, even though they knew that he worked on conflicts. Reintroducing conflicts to the law school curriculum might be as simple a matter as rebranding the course to make its connection with international law clear, as Georgetown has done.

He also considers—and rightly rejects—the notion that this is an area about which practicing attorneys can easily educate themselves. To quote again from the Essay:

Another argument that the disappearance of conflicts from the law school curriculum is not a problem is that a practitioner can identify a choice-of-law issue and get up to speed on the relevant law in short order. The truth, however, is that one is unlikely to recognize a choice-of-law issue without having taken conflicts. We have often been shocked at how law professors without a conflicts background (again, we are not naming names) will make questionable choice-of-law inferences in the course of an argument, based on nothing more than their a priori intuitions. They appear to be unaware that there is law—and law that differs markedly as one moves from one state or nation to another—on the matter. One can recognize a choice-of-law issue only by knowing what is possible, and someone who has not taken conflicts will not know the universe of possibilities.

The Essay contains a host of additional insights that will (fingers crossed) help to reinvigorate the field of private international law in the United States. Anyone with an interest in conflicts (or private international law) should read it. It can be downloaded here.

A version of this post also appears at Transnational Litigation Blog.

On behalf of Aleksandrs Fillers (Riga Graduate School of Law), we are happy to share the following conference announcement; more information can also be found here.

The European Union (EU) has become a central player in private international law (PIL) on the European continent. The scope of EU PIL is extensive and constantly poses challenges to scholars and courts. The objective of the Riga Private International Law Conference is to discuss the current weaknesses of EU PIL and share suggestions for improvements. The conference topics cover all areas of EU Private International Law, including private international law for divorces, maintenance, commercial contracts, torts, and more.

The conference will be held in Riga, Latvia, at the Riga Graduate School of Law on 7–8 June 2025.

Please submit abstracts of no more than 300 words to Associate Professor Dr Aleksandrs Fillers (aleksandrs.fillers@rgsl.edu.lv) by 15 April 2025.

We will notify you about the acceptance of papers by 1 May 2025. To cover the costs of lunches and administrative expenses, we foresee a moderate fee of EUR 30.

Directly after the conference, we intend to prepare a book proposal under the working title “Improving European Private International Law.” The proposal will be based on selected papers, and we aim to publish it with an international publishing house with broad distribution.

The Unipar project partners are organising a stakeholders’ meeting on the EU’s proposal on filiation/parenthood, domestic private international law, human and children’s rights, and EU law. The meeting will be held in Brussels on 13 and 14 March, and will be livestreamed for persons who wish to follow.

The programme is available on the Unipar website. There you will also find the registration link for online participation.

Unipar is co-funded by the European Union. It is a two-year project that comments on the EU’s proposal on private international law on filiation, but also investigates the larger context of filiation/parenthood across borders. The first outcome is a report on the impact on parentage of the EU acquis.

OGEL Special Issue on ‘Space Mining: National and International Regulation for and against Commercial Mining of Outer Space Resources’ will include dispute resolution over space mining plans as well as dispute resolution among participants in space mining operations – state vs state and space versus corporations and corporations versus corporations.

Outer Space clearly involves interesting private international law issues.

Proposals should be submitted to the editors by 31st March 2025, with final papers to be submitted before 31st May 2025.

For more information, please refer to here.

ConflictofLaws.net will be hosting an ad-hoc virtual roundtable on the Commission’s Rome II Report

on 11 March 2025, 12pm–1.30pm.

The conversation will focus on the long-awaited report published by the Commission on 31 January 2025 and its implications for a possible future reform of the Regulation.

The event will feature the following panellists:

Rui Dias
University of Coimbra

Thomas Kadner Graziano
University of Geneva

Xandra Kramer
Erasmus University Rotterdam

Eva Lein
University of Lausanne &
British Institute of International and Comparative Law

Tobias Lutzi
University of Augsburg

Everyone interested is warmly invited to join via this Zoom link.

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

In a nutshell: reinforced legal certainty but questions remain

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

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

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

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

Background

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

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

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

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

Discussions in France spur crucial CJEU review

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

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

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

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

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

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

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

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

CJEU upholds asymmetric clauses… under conditions

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

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

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

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

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

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

The program features panels on

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

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

Conference fees

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

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

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

Student: Free to attend the conference only.

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

Register here

Aboute AAPrIL

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

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

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

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

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

The full job advertisement can be found here.

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

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

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

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

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

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

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

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

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

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

The full table of contents will be available here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FAMILY LAW PARADIGMS – SYMPOSIUM, JUNE 2024

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

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

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

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

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

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

MORE ESSAYS

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

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

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

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

BOOK REVIEWS

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

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

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

The (Un)Complicated Fact Pattern

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

Judicial Analysis by the SICC

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

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

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

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

The Ruling’s Implications on Commercial Contracts

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

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

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